Care One Management LLC v. United Healthcare Workers East

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

No. 19-3693

_______________

CARE ONE MANAGEMENT, LLC, ET AL.,

Appellants

v.

UNITED HEALTHCARE WORKERS EAST, ET AL.

________________________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil No. 2:12-cv-06371)

District Judge: Honorable Susan D. Wigenton

______________________

Argued: September 24, 2020

_______________

Before: McKEE, JORDAN, and RENDELL, Circuit Judges.

(Opinion filed: December 17, 2021)

Rosemary Alito [Argued]

George P. Barbatsuly

K&L Gates

One Newark Center

10th Floor

Newark, NJ 07102

Donald Burke

Roy T. Englert, Jr.

Robbins Russell Englert Orseck Untereiner & Sauber

2000 K Street, N.W.

4th Floor

Washington, DC 20006

Counsel for Plaintiff-Appellants

A. Matthew Boxer

Lowenstein Sandler

One Lowenstein Drive

Roseland, NJ 07068

Leon Dayan [Argued]

Jacob Karabell

Caitlin D. Kekacs

Joshua A. Segal

Bredhoff & Kaiser

805 15th Street, N.W.

Suite 1000

Washington, DC 20005

David M. Slutsky

Levy Ratner

80 Eighth Avenue

8th Floor

New York, NY 10011

R. Scott Thompson

Wollmuth Maher & Deutsch

500 Fifth Avenue

12th Floor

New York, NY 10110

Counsel for Defendants-Appellees

2

______________

OPINION

______________

McKee, Circuit Judge.

Plaintiff-Appellants Care One Management, LLC;

HealthBridge Management, LLC (“HealthBridge”); the Care

3

One Facilities;1 and the HealthBridge Facilities2 (collectively,

“Care One”) manage nursing homes and assisted-living

1

Care One manages 21 facilities located throughout the State

of New Jersey including the following: Care One at

Birchwood, LLC, d/b/a Care One at The Highlands; Care One

at East Brunswick, LLC, d/b/a Care One at East Brunswick;

Care One at Hamilton, LLC, d/b/a Care One at Hamilton;

Care One at Madison Avenue, LLC, d/b/a Care One at

Madison Avenue; Care One at Mercer, LLC, d/b/a Care One

at Ewing; Care One at Parsippany-Troy Hills, LLC, d/b/a

Care One at Morris; Care One at Teaneck, LLC, d/b/a Care

One at Teaneck; Care One at Wall, LLC, d/b/a Care One at

Wall; Care Two, LLC, d/b/a Care One at Livingston; Care

One at Moorestown, LLC, d/b/a Care One at Moorestown;

Elmwood Evesham Associates, LLC, d/b/a Care One at

Evesham; HCC, LLC, d/b/a Care One at Holmdel; King

James Care Center of Middletown, LLC, d/b/a Care One at

King James; Millennium Healthcare Centers II, LLC, d/b/a

Care One at Dunroven; Millennium Healthcare Centers II,

LLC, d/b/a Care One at Valley; Millennium Healthcare

Centers, LLC, d/b/a Care One at Pine Rest; Millennium

Healthcare Centers, LLC, d/b/a Care One at The Cupola; 11

History Lane Operating Company, LLC, d/b/a Care One at

Jackson; 101 Whippany Road Operating Company, LLC

d/b/a Care One at Hanover Township; 301 Union Street,

LLC, d/b/a Care One at Wellington; and 493 Black Oak

Ridge Road, LLC, d/b/a Care One at Wayne; the

Rehabilitation Center at Raritan Bay Medical Center, LLC

d/b/a Care One at Raritan Bay Medical Center; Care One at

Trinitas, LLC, d/b/a LTACH – CareOne at Trinitas Regional

Medical Center; and Care One at Harmony Village, LLC,

d/b/a CareOne Harmony Village at Moorestown (collectively

referred to herein as the “Care One Facilities”). Care One

Mgmt., LLC v. United Healthcare Workers E., No. 12-6371,

2019 WL 5541410, at *1 n.1 (D.N.J. Oct. 28, 2019).

2

The HealthBridge Facilities include the following: 600

Kinderkamack Road Operating Company, LLC, d/b/a Oradell

Health Care Center; 800 River Road Operating Company,

LLC, d/b/a Woodcrest Health Care Center; 2 Cooper Plaza

Operating Company, LLC, d/b/a South Jersey Health Care

Center; 1621 Route 22 West Operating Company, LLC, d/b/a

4

facilities throughout the Northeast. Defendant-Appellees are

1199SEIU United Healthcare Workers East (“UHWE”), New

Somerset Valley Rehabilitation and Nursing Center; 341

Jordan Lane Operating Company II, LLC, d/b/a Wethersfield

Health Care Center; 1 Burr Road Operating Company II,

LLC, d/b/a Westport Health Care Center; 107 Osborne Street

Operating Company II, LLC, d/b/a Danbury Health Care

Center; 240 Church Street Operating Company II, LLC, d/b/a

Newington Health Care Center; 245 Orange Avenue

Operating Company II, LLC, d/b/a West River Health Care

Center; 710 Long Ridge Road Operating Company II, LLC,

d/b/a Stamford Health Care Center; 162 South Britain Road

Operating Company II, LLC, d/b/a River Glen Health Care

Center; 2028 Bridgeport Avenue Operating Company II,

LLC, d/b/a Golden Hill Health Care Center; 745 Highland

Avenue Operating Company, LLC, d/b/a The Highlands

Health Care Center; 135 Benton Drive Operating Company,

LLC, d/b/a Redstone Health Care Center; 178 Lowell Street

Operating Company, LLC, d/b/a Lexington Health Care

Center; 19 Varnum Street Operating Company, LLC, d/b/a

Lowell Health Care Center; 199 Andover Street Operating

Company, LLC, d/b/a Peabody Glen Health Care Center;

2101 Washington Street Operating Company, LLC, d/b/a

Newton Healthcare Center; 221 Fitzgerald Drive Operating

Company, LLC, d/b/a New Bedford Health Care Center; 260

Easthampton Road Operating Company, LLC, d/b/a Holyoke

Rehabilitation Center; 312 Millbury Avenue Operating

Company, LLC, d/b/a Millbury Health Care Center; 49

Thomas Patten Drive Operating Company, LLC, d/b/a Cedar

Hill Health Care Center; 548 Elm Street Operating Company,

LLC, d/b/a Calvin Coolidge Nursing and Rehab. Center for

Northhampton; 57 Old Road to Nine Acre Corner Operating

Company, LLC, d/b/a Concord Health Care Center; 64

Performance Drive Operating Company, LLC, d/b/a

Weymouth Health Care Center; 750 Woburn Street Operating

Company, LLC, d/b/a Wilmington Health Care Center; Park,

Marion and Vernon Streets Operating Company, LLC, d/b/a

Brookline Health Care Center; 265 Essex Street Operating

Company, LLC, d/b/a Essex Park Rehabilitation Center; and

DES Senior Care Holdings LLC, d/b/a Sweet Brook Care

Centers (collectively referred to herein as the “HealthBridge

Facilities”). Id. at n.2.

5

England Health Care Employees Union, District 1199

(“NEHCEU”), and two labor unions affiliated with Service

Employees International Unions (“SEIU”) (collectively,

“Unions”).

The Unions represented several employees at various

Care One facilities. Care One sued the Unions for damages

arising from actions that Care One alleged amounted to a

pattern of racketeering in violation of the Racketeer Influenced

and Corrupt Organizations (RICO) Act, based upon, inter alia,

its characterization of these actions as “extortionate.”3

The District Court granted the Unions’ motion for

summary judgment and dismissed the complaint. The Court

held that no reasonable juror could conclude that the vandalism

underlying Care One’s claims could be attributed to union

members, much less the Unions themselves.4 It also concluded

that other actions the Unions undertook to exert pressure on

Care One—including advertisements, picketing, and attempts

to invoke regulatory and legislative processes—were not

“extortionate.” The Court further concluded that Defendants

lacked the specific intent to deceive and, therefore, were

entitled to summary judgment on the mail and wire fraud

claims.5 This appeal followed.

Notwithstanding the protests of our dissenting

colleague—expressing extreme distaste for the Unions’

tactics—the caselaw compels us to conclude that the District

Court correctly decided that labor tactics, such as the Unions

engaged in here, are not extortionate and accurately reasoned

the remaining issues before it. Thus, for the reasons we discuss

below, we will affirm.6

3

18 U.S.C § 1961 et seq.

4

Care One, 2019 WL 5541410, at *6.

5

Id. at *7–10.

6

The District Court had jurisdiction pursuant to 28 U.S.C. §

1331, 28 U.S.C. § 1337, and 28 U.S.C. § 1367. We have

jurisdiction pursuant to 28 U.S.C. § 1291. We review a grant

of summary judgment de novo. Tundo v. Cnty. of Passaic,

923 F.3d 283, 286 (3d Cir. 2019). A district court properly

grants summary judgment if the moving party shows there is

“no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Id. at 287 (citing

6

I. Factual Background

This suit is the culmination of a history of conflict and

animosity that has unfortunately characterized the relationship

between Care One and the Unions. In 2010 and 2011, the

Unions filed charges against Care One with the National Labor

Relations Board.7 The Unions alleged that Care One had

improperly terminated or threatened employees, improperly

discontinued benefits, and wrongfully suppressed union

communications at the Connecticut Facilities.8 They also

alleged that Care One had engaged in unfair labor practices

during and after a union election in the Somerset, New Jersey

Facility.9 The NLRB issued Complaints and Notices of

Hearing charging Care One with interfering with rights

guaranteed by the National Labor Relations Act, including

refusal to bargain collectively and in good faith.10

Beginning in January 2011, while the NLRB complaints

were pending, NEHCEU and Care One unsuccessfully

attempted to negotiate a renewal of the Connecticut Facilities’

collective bargaining agreements.11 Thereafter, in June 2012,

NEHCEU called a strike at those facilities to begin on July 3,

2012.12 On the night before the strike was to begin, the

Connecticut Facilities were vandalized and sabotaged.13

Patient identifying information (including patient wrist bands,

door name plates, and dietary requirement documents) were

mixed up.14 Medical records were altered, medical equipment

was damaged or hidden, and laundry equipment was

vandalized.15 At Care One’s request, the Connecticut State’s

Attorney investigated, but the investigation yielded neither

suspects nor charges.

Fed. R. Civ. P. 56(a)). We view the facts “in the light most

favorable to the non-moving party and [draw] all reasonable

inferences in that party’s favor.” Id. (citations omitted).

7

Care One, 2019 WL 5541410, at *2.

8

Id.

9

Id.

10

Id.

11

Id., at *3.

12

Id.

13

Id.

14

Id.

15

Id.

7

Union documents later obtained in discovery revealed

the Unions’ plans to inspire workers to “become angry about

their working conditions”16 and to resort to “more militant”

levels of activity.17 The President of the NEHCEU also made

a speech to workers in which he told them that “the law takes

too long” and that NEHCEU “could be destroyed by the time

the law was able to stop [Care One’s] behavior.”18 After the

incidents, NEHCEU’s communications director wrote to

fellow employees, referring to the allegations of vandalism and

destruction. The communication sent out to union members

included the statement: “Of course anyone with a pea-sized

brain would realize this isn’t a tactic we would undertake.”19

When a reporter asked the NEHCEU about the vandalism and

destruction at the Care One facilities, NEHCEU's

communications director wrote:

The allegations made by HealthBridge, if true,

are very serious indeed. Should evidence be

found that anyone took any action that would

compromise care or put residents at risk, that

person or persons should be held fully

accountable, no matter who they might be.20

The record also contains several emails from the time

following the incident. They include an email from Deborah

Chernoff, Communications Director of the New England

Health Care Employees Union, District 1199, SEIU, which

describes a response to a FOIA request the Unions made to the

Department of Health as “mudd[ying] the waters and

support[ing] the contentions of the workers that” patients may

have removed their identifying bracelets themselves rather

than saboteurs.21 There is also an email from Chernoff to Chas

Walker, Elected Organizer, and others in SEIU. It was sent

after the vandalism and sabotage. The email appears to be a

16

JA 5852, a facilitator teaching document with the goal of

“answer[ing] tough questions and redirect[ing] conversations

to an organizing agenda.”

17

JA 5849, a supervisor’s evaluation form for an individual

organizer.

18

Defs.’ Summ. J. Reply 5.

19

JA 6825.

20

JA 1068.

21

JA 5842.

8

response to Walker’s suggestion that Unions launch their own

investigation or actively seek to participate in the police

investigation. In the email, Chernoff suggested it would be “a

very bad idea” to seek to participate in the police investigation

because the Unions should not “suggest [they] have

information [they] don’t have.”22 The email also stressed the

Unions’ obligation to their members.

In addition, in 2011, with the assistance of NEHCEU

and UHWE, SEIU launched a campaign attacking Care One’s

labor and business practices. The campaign materials included

developing websites, print and radio advertisements, as well as

flyers questioning Care One’s billing practices and standards

of care. The campaign also publicized the NLRB complaints.23

The Union advertisements Care One focuses on before us

included several rhetorical questions. The first asks: “Are

HealthBridge Nursing Homes Employing Enough Caregivers

For Our Loved Ones?” It asserts Care One provided below-

average coverage by certified nursing assistants.24 The second

asks: “Is HealthBridge Giving Your Loved One Anti-Psychotic

Drugs?” and asserts that Care One excessively administered

medications.25 The third asks: “Overbilled at a HealthBridge

Nursing Home?,” and references overbilling.26 The fourth

asks: “Who’s in charge At HealthBridge Nursing Homes?” and

states that the facilities have an unhealthy level of turnover.27

The Unions submitted evidence to the District Court to

show that this publicity campaign was subject to fact-checking

and vetting procedures. But Care One alleges no such

safeguards were in place. Despite Care One’s allegations to

the contrary, Amy Gladstein, UHWE’s Assistant for Strategic

Organizing, testified that the Unions had adopted certain

protocols requiring researchers to be trained in conducting

careful research. She also claimed that the advertisements

were based on initial fact-gathering. She said the work had to

be “vetted by the research department for accuracy,”28 and the

22

JA 5831.

23

Care One, 2019 WL 5541410, at *3.

24

JA 2491.

25

JA 2501.

26

JA 2477.

27

JA 2494.

28

JA 2761.

9

advertisements were fact-checked by trusted researchers and

outside counsel.29

From July through November 2011, the UHWE also

filed petitions for public hearings on applications for

“determinations of need,” which Care One had filed with the

Massachusetts Department of Health to obtain approval for

capital improvement projects at their facilities.30 The Unions’

objections delayed approval of Care One’s applications.

In February 2012, the Unions also asked Senator

Richard Blumenthal, one of Connecticut’s two United States

Senators, to investigate Care One’s alleged questionable

billing practices. Senator Blumenthal responded by asking the

Secretary of Health and Human Services to audit Care One’s

billing practices.

The Unions’ campaign also included peaceful

demonstrations, including one held in August 2012 at Care

One’s offices, where petitions for fair collective bargaining

were delivered to Care One’s owner and CEO, Daniel Straus.

In addition, the Unions staged a peaceful protest at NYU Law

School where demonstrators handed out materials questioning

Straus’s purported hypocrisy for endowing the Institute for the

Advanced Study of Law & Justice at NYU while allegedly

violating labor law.

II. Procedural Background

Care One brought this suit for damages based on claims

of defamation, trade libel, and racketeering. The Complaint

alleged that the Unions’ conduct transcended the limits of

organizing or legitimate advocacy and was more accurately

defined as a pattern of racketeering activity under RICO.31

Indeed, the animosity between Care One and the Unions as

well as Care One’s assessment of the Unions’ “advocacy” is

forcefully communicated at the outset of Appellants’ Brief.

29

See JA5327 (cite checking was “Megan [Thorsfeldt’s] job

and I trust her”); JA2642 (vetting was conducted on the

research side and legal side); JA5134 (accuracy was the

responsibility of “our research team” and “counsel”); JA 3718

(Gladstein explaining that “my researchers” were responsible

for accuracy).

30

JA 1480–84.

31

Care One, 2019 WL 5541410, at *5.

10

There, Care One implies that the defendants are labor unions

in name only.32

III. Discussion

RICO imposes criminal and civil liability upon those

who engage in certain “prohibited activities.”33 It allows for

civil remedies for “[a]ny person injured in his business or

property by reason of a violation of [18 U.S.C. § 1962].”34

Under § 1962(c), to establish civil liability, a plaintiff must

show that defendant(s) acted as an “enterprise” and conducted

a “pattern of racketeering activity” through certain criminal

predicate acts.35 These predicate acts include federal crimes

such as extortion, mail fraud, and wire fraud, and certain state

crimes, including extortion.36 For an act to be a predicate

offense under state law, the conduct must be “generically

classified as extortionate.” 37 The generic definition of

extortion is “obtaining something of value from another with

his consent induced by the wrongful use of force, fear, or

threats.”38

Care One contends that the Unions extorted Care One

through sabotage and vandalism and by applying economic

pressure. It claims that the Unions thereby committed

predicate acts of extortion in violation of Connecticut, New

Jersey, and Massachusetts state law.39 The District Court

employed a generic definition of extortion and used the federal

Hobbs Act definition of “wrongfulness” from Brokerage

32

Appellants’ Br. at 1 (“The defendants in this case are labor

unions, at least in name . . . .”).

33

H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 232

(1989).

34

Wilkie v. Robbins, 551 U.S. 537, 563 (2007) (alterations in

original) (citing 18 U.S.C. § 1964(c)).

35

18 U.S.C. § 1962(c).

36

Id. § 1961(1)(A), (B). Here, it is not disputed that a labor

union can constitute a RICO enterprise if its affairs are

conducted through a pattern of racketeering activity. See

United States v. Parise, 159 F.3d 790, 795 (3d Cir. 1998).

37

Scheidler v. Nat'l Org. for Women, Inc., 537 U.S. 393, 409

(2003).

38

Id. (emphasis added).

39

Care One Mgmt., LLC, 2019 WL 5541410, at *5.

11

Concepts, Inc. v. U.S. Healthcare, Inc.40 Care One argues that

the District Court erred in using a federal Hobbs Act definition

of “wrongfulness” in concluding that the Unions were not

guilty of extortion under state law. The District Court did not

err.

As we explained above, the generic definition of

extortion is “obtaining something of value from another with

his consent induced by the wrongful use of force, fear, or

threats.”41 The Hobbs Act definition of extortion has the same

“wrongful use” element as generic extortion.42 Accordingly,

the generic definition and the Hobbs Act definition are

40

Id. at *5–7 (citing 140 F.3d 494 (3d Cir. 1998)).

41

Id. at *5 (emphasis added) (quoting Scheidler, 537 U.S. at

409). See Brokerage Concepts, Inc. v. U.S. Healthcare, Inc.,

140 F.3d 494, 503 (3d Cir. 1998).

42

The generic definition of extortion is “obtaining something

of value from another with his consent induced by the

wrongful use of force, fear, or threats.” United States v.

Nardello, 393 U.S. 286, 290 (1969). Whereas the Hobbs

definition is “obtaining of property from another, with his

consent, induced by wrongful use of actual or threatened

force, violence, or fear, or under color of official right.” 18

U.S.C. § 1951(b)(2). See also United States v. Enmons, 410

U.S. 396, 399–400 (1973) (interpreting the statutory language

of the statute).

12

substantially the same.43 Hobbs Act cases are therefore

relevant to our analysis of state law extortion claims.44

1. Extortion

Care One relies on two purported types of extortionate

acts to establish the requisite RICO predicates.45 It alleges that

the Unions resorted to fear of economic loss to obtain property

through campaigns and petitioning and attempted to obtain

property by force through a Union-authorized sabotage on the

eve of the Connecticut strike. We will address each claim in

turn.

a. Extortion Through Fear of Economic Loss

We conclude that the Unions’ conduct—employing

pressure campaigns, regulatory processes, and the criminal

justice system—does not subject them to liability under the

Hobbs Act.

43

The Dissent’s suggestion that it may be incorrect to treat

these definitions the same is plainly at odds with the caselaw

discussed above. The Dissent offers no caselaw as support

for this assertion, but simply suggests that the “linguistic

parsing in Enmons is . . . not obviously applicable.” Dissent

at 5. Confusingly, the Dissent cites A Study of Statutory

Blackmail and Extortion in the Several States as comparative

support for the assertion that “no authority has been offered

[by the Majority] to suggest that, outside of the Hobbs Act as

narrowly interpreted by Enmons, laws against extortion have

ever been generally understood to be inapplicable to labor

unions.” Id. at 5 (citing Alice Kramer Griep, Comment, A

Study of Statutory Blackmail and Extortion in the Several

States, 44 MICH. L. REV. 461 (1945)). Even a cursory look at

this article reveals that it does not actually support the stated

assertion; this article is from 1945, which is almost thirty

years before Enmons was even decided, and it also explicitly

excludes “threats which are punishable even though no

property is demanded”—the exact type of conduct that

applies in the context of labor unions—as being outside “the

scope of this paper.” Griep, supra note 52, at 462.

44

See, e.g., United Bhd. of Carpenters v. Bldg. & Constr.

Trades Dep’t, 770 F.3d 834 (9th Cir. 2014).

45

18 U.S.C. § 1961(1).

13

First, United States v. Enmons46 and Brokerage

Concepts, Inc. v. U.S. Healthcare, Inc.47 foreclose Hobbs Act

liability for a union pursuing legitimate labor objectives, such

as increased pay or better working conditions. This carve-out

from Hobbs Act liability for a union pursuing legitimate labor

objectives has been termed the “claim-of-right defense.”48 In

Enmons, the Supreme Court held that this defense protects “the

use of violence to achieve legitimate union objectives, such as

higher wages in return for genuine services which the employer

seeks.”49 There, union members had “fir[ed] high-powered

rifles at three Company transformers, drain[ed] the oil from a

Company transformer, and bl[ew] up a transformer substation

owned by the Company.”50 In finding this conduct was not

“extortion” under the Act, the Court first consulted the

statutory text. The Court reasoned as follows:

The term “wrongful,” which on the face of the

statute modifies the use of each of the

enumerated means of obtaining property—actual

or threatened force, violence, or fear—would be

superfluous if it only served to describe the

means used. For it would be redundant to speak

of “wrongful violence” or “wrongful force”

since, as the government acknowledges, any

violence or force to obtain property is

“wrongful.” Rather, “wrongful” has meaning in

the Act only if it limits the statute's coverage to

those instances where the obtaining of the

property would itself be “wrongful” because the

alleged extortionist has no lawful claim to that

property.51

The Court also relied on legislative evidence that the

Act was not meant to “interfere in any way with any legitimate

labor objective or activity” and that “there is not a thing in it to

46

410 U.S. 396 (1973).

47

140 F.3d 494 (3d Cir. 1998)

48

See, e.g., United States v. Agnes, 753 F.2d 293, 299 (3d Cir.

1985), abrogated by Smith v. Borough of Wilkinsburg, 147

F.3d 272 (3d Cir. 1998).

49

Enmons, 410 U.S. at 400.

50

Id. at 398.

51

Id. at 399–400 (emphasis added) (citations omitted).

14

interfere in the slightest degree with any legitimate activity on

the part of labor people or labor unions.”52 The Court found

that the Hobbs Act simply had no application to labor-

management strife when a union is seeking legitimate ends,

even if the means chosen are destructive.53

We must stress that the Court did not limit this defense

to the strike-violence context, as the Dissent seemingly argues.

Of course, the Enmons Court focused on this context as that

was the situation before it, but the Court also relied on

legislative history stating that the Act was not meant to

interfere with “any” legitimate labor activity—not just strikes.

The Dissent’s approach adds language that the Court could

have used to limit the application of this act but chose not to.

In doing so, the Dissent implicitly suggests that labor unions

should have more latitude in a strike than in negotiations that

may precede a strike.54 This would have absurd consequences

in which companies would be subjected to strikes even though

they were willing to continue negotiations and unions would

be encouraged to go on strike merely to access additional

negotiating tools, thereby injuring their employees and

employers. Neither Congress nor the Supreme Court would

have intended such an impractical and counterproductive

approach to the law of extortion. Logically, if even violence

in the pursuit of core union objectives is not Hobbs Act

extortion, then it is obvious that non-violent forms of coercion,

such as the economic pressure tactics employed here, are

similarly subject to a broad labor-context claim-of-right

52

Id. at 404 (emphasis added).

53

The Enmons Court clarified that the scope of legitimate

labor objectives excludes, for example, threats to obtain

“personal payoffs” or force the hiring of no-show workers.

Id. at 400. The claim-of-right defense is thus inapplicable

where a union uses coercive tactics—whether violent or non-

violent—to “exact ‘wage’ payments from employers in return

for ‘imposed, unwanted, superfluous and fictitious services'

of workers.” Id.

54

Although the Dissent claims to “make no distinction . . .

between conduct during strikes and conduct during other

labor negotiations activities,” interpreting Brokerage

Concepts as narrowly as the Dissent would like would

functionally create this distinction whether the Dissent

explicitly recognizes that or not. Dissent at 11, n.10.

15

defense.55 The Dissent argues that “[n]othing in Brokerage

Concepts . . . creates a special immunity for labor unions to

extort business concessions through economic fear.”56 But our

decision in Brokerage Concepts amply supports subjecting

economic pressure tactics to the claim-of-right defense. In

Brokerage Concepts, we concluded that economic pressure is

not “‘inherently’ wrongful” and can fall outside of the Hobbs

Act even in non-labor contexts.57 Clearly, a union’s use of

sharp-edged economic means or “hardball” tactics must

receive the same “carve-out” from Hobbs Act liability as far

more militant tactics. It would be a bizarre outcome indeed if

the Act subjected organized labor to extortion prosecutions for

hard bargaining with management but immunized labor

organizations when that bargaining spills over into violence.58

In arguing to the contrary, the Dissent manifests an

unwillingness to concede the reality of labor strife and the

pressures surrounding it. After all, every strike, as well as the

threat of a strike, is nothing more than an attempt to extort

business concessions through economic fear and intimidation.

55

See, e.g., United States v. Mulder, 273 F.3d 91, 98, 104–06

(2d Cir. 2001) (explaining how the district court was

“correct” to instruct the jury regarding the labor exception

where allegedly extortionate conduct at issue included non-

violent “threats of slowdowns” as well as violence). See also

James J. Brudney, Collateral Conflict: Employer Claims of

Rico Extortion Against Union Comprehensive Campaigns, 83

S. CAL. L. REV. 731, 779 (2010) (“The Enmons holding

applies a fortiori to property obtained through fear of

economic injury, which, unlike force or violence, is not

inherently suspect as a form of pressure.”).

56

Dissent at 9.

57

See Brokerage Concepts, 140 F.3d at 523; see also United

Bhd. of Carpenters & Joiners of Am. v. Bldg. & Const.

Trades Dep’t, AFL-CIO, 770 F.3d 834, 838 (9th Cir. 2014);

United States v. Sturm, 870 F.2d 769, 773 (1st Cir. 1989).

58

Cf. United States v. Vigil, 523 F.3d 1258, 1265 (10th Cir.

2008) (citing Enmons for the proposition that “economic fear

arising from hard bargaining is permitted, for example in the

union context”). Indeed, we have been unable to find (and

the Dissent does not cite) a single case in which a union was

subjected to Hobbs Act liability for purely economic threats

directed at management in pursuit of legitimate labor ends.

16

This application of Enmons finds further support in the

caselaw of our sister Courts of Appeals, which have recognized

that Enmons’s holding is generally applicable to labor-

management conflicts. In United States v. Quinn, for instance,

the Fifth Circuit relied on Enmons to declare that

the Hobbs Act does not condemn the use of

coercive measures to obtain wage increases,

provided labor furnishes the employer with

genuine services in exchange for the wages

sought. . . . [T]he effect of Enmons was to

remove from the reach of federal criminal law

the use of coercive tactics to obtain increased

wages, but with the caveat that the prosecutor's

hand would be stayed only when the payment is

gained in furtherance of legitimate labor

objectives.59

Similarly, in United States v. French, the Eighth Circuit stated

that Enmons stands for the proposition that “the Hobbs Act

does not cover coercive action by unions in pursuit of

legitimate labor goals of higher wages or increased benefits”—

again, not limiting its reach to the strike context as the Dissent

argues.60 And in United States v. Gibson, the First Circuit

upheld as “accurate” jury instructions stating that the Hobbs

Act does not “condemn the use of coercive measures to obtain

wage increases or to carry out a collective bargaining

agreement, if there is an agreement between union and an

employer.”61 These cases plainly read Enmons’s claim-of-

59

514 F.2d 1250, 1257 (5th Cir. 1975) (first and second

emphasis added); see Coercion, BLACK’S LAW DICTIONARY

(11th ed. 2019) (“Compulsion of a free agent by physical,

moral, or economic force or threat of physical force.”)

(emphasis added).

60

628 F.2d 1069, 1075 (8th Cir. 1980) (emphasis added).

61

726 F.2d 869, 874 (1st Cir. 1984) (emphasis added). See

also United States v. Zappola, 677 F.2d 264, 269 (2d Cir.

1982) (explaining how Enmons “carved out a labor exception

to the traditional law of extortion codified in the Hobbs Act”);

Mulder, 273 F.3d at 104 (“There is a labor exception to

culpability for Hobbs Act extortion.”). Although there is

caselaw reading Enmons as narrowly concerned with strike

17

right defense as applicable to any coercive labor action aimed

at legitimate objectives; there is no defensible distinction to be

drawn between violent and non-violent tactics.62

In sum, reading Enmons along with Brokerage

Concepts and other cases construing the claim-of-right defense

makes clear that the Unions cannot be liable under the Hobbs

Act for nonviolent pressure tactics directed against

violence, none of these cases explicitly address the question

of non-violent labor-management strife and most predate our

decision in Brokerage Concepts, in which we relied on

Enmons’s reasoning to cross-apply the claim-of-right defense

to general economic activity. See, e.g., Agnes, 753 F.2d at

299; Brokerage Concepts, 140 F.3d at 503 (cross-applying

Enmons while being “mindful” of earlier cases such as

Agnes); id. at 523 (“The limitation we apply is that set forth in

Enmons: that a defendant is not guilty of extortion if he has a

lawful claim to the property obtained.”); see also United

States v. Tobin, 155 F.3d 636, 640 (3d Cir. 1998) (applying

Enmons in the context of “labor-management conflicts” even

before Brokerage Concepts). Further, in Brokerage

Concepts, we observed that the “line of cases limiting

Enmons” had no bearing on cases involving “solely” the use

of economic threats. 140 F.3d at 523. Moreover, cases that

spoke of “narrowly” construing Enmons tended to do so when

asked to apply its holding beyond the labor-management

strife context, rather than to nonviolent instances thereof.

See, e.g., United States v. Cerilli, 603 F.2d 415, 419 (3d Cir.

1979) (observing that “Enmons is a labor case” in refusing to

apply its reasoning to the coercive solicitation of political

contributions); see also United States v. Thordarson, 646 F.2d

1323, 1330 (9th Cir. 1981) (refusing to extend the Enmons

defense to other criminal statutes). United States v. Debs also

falls in this category. 949 F.2d 199, 201 (6th Cir. 1991).

There, the Sixth Circuit declined to extend the claim-of-right

defense to intra-union threats and violence. Id. at 200–01.

62

The concurring opinion in United States v. Russo is also

instructive here: “While caution should be exercised in

extending Enmons too far—especially to cases outside the

labor context—equal, if not greater, caution should be

exercised in not applying Enmons to cases such as ours which

do involve labor disputes.” 708 F.2d 209, 224 (6th Cir. 1983)

(Holschuh, J., concurring) (emphasis in the original).

18

management in support of legitimate objectives. The Unions

were seeking to advance a legitimate labor goal: forcing Care

One to provide better wages and working conditions to Union

members. To this end, the Unions employed hard-nosed

pressure tactics. Although some may condemn such strategies,

they are not actionable under the Hobbs Act.

Our dissenting colleague would demand more than

Enmons and our caselaw require, arguing that a “reasonably

close relationship” between the Unions’ ends and means is

required for the claim-of-right defense to apply.63 We can

discern no such requirement in the cases. Indeed, the extreme

coercive means employed by the union in Enmons—“firing

high-powered rifles at three Company transformers, draining

the oil from a Company transformer, and blowing up a

transformer substation owned by the Company”64—sound like

exactly the sort of “counterproductive” and “collateral” acts

that the Dissent contends should subject labor organizations

like the Unions to potential extortion liability.65 As we noted

earlier, the Dissent would inappropriately subject the viability

of these unions’ claim-of-right defense to a higher bar in the

context of nonviolent economic campaigns than would apply

if there had been actual violence.66 As we explained, it would

be illogical to interpret Emmons and its progeny in a manner

that encourages unions to go on strike so that they have wider

latitude than they are afforded while they remain at the

bargaining table.

The Dissent cites two cases to support the contention

that there must be a “close relationship” between the means

employed and a legitimate objective: United States v.

Jackson67 and the United States v. Villalobos concurrence.68

63

See Dissent at 16.

64

410 U.S. at 398.

65

See Brokerage Concepts, 140 F.3d at 504 (finding claim-

of-right defense still applied where threatened conduct

concerned an “unrelated market”). In effect, the Dissent

would have us ignore, not just the language and holding of

Enmons, but what necessarily follows therefrom.

66

See Dissent at 15–16.

67

180 F.3d 55, 70 (2d Cir. 1999), rev’d on reh’g on other

grounds, 196 F.3d 383 (2d Cir. 1999). See Dissent at 16.

68

748 F.3d 953, 959 (9th Cir. 2014) (Waterford, J.,

concurring in the judgment). See Dissent at 16.

19

But these are distinguishable as neither analyzes the claim-of-

right defense in the context of labor-management strife, the key

fact here.69 Indeed, the Jackson Court and Villalobos

concurrence do not even cite Enmons, the foundational case

regarding potentially extortionate labor action. Nor is this an

isolated misstep in the Dissent’s analysis. Our colleague

mistakenly cites non-labor cases throughout the Dissent in an

attempt to stretch the Hobbs Act to reach the conduct at issue

here. For example, in citing the concurrence in Villalobos, the

Dissent overlooks the fact that the majority there specifically

noted: “In United States v. Enmons, the Supreme Court

concluded that the use of force to achieve legitimate labor ends

was not extortion.”70 And in citing United States v. Agnes, the

Dissent ignores that we there acknowledged “Judge

Higgenbotham’s cogent warning in Cerilli” that “[a]ny

application of Enmons to cases outside of [the labor] context

must be done with caution. Otherwise there is a danger that

Enmons . . . could effectively repeal the Hobbs Act.”71 These

examples illustrate how the Dissent consistently confuses one

axis of limitation—the refusal to apply Enmons to violent non-

labor actions—for another—whether Enmons applies to non-

69

In Jackson, the defendants attempted to extort Bill Cosby

by threatening to disclose that one of them was his

illegitimate daughter. 180 F.3d at 55–65. In Villalobos, a

lawyer attempted to extort the target of a criminal

investigation by offering to have his client obstruct it in

exchange for money. 748 F.3d at 955. The Ninth Circuit

relied on the premise that “outside the labor context, there are

some attempts to obtain property that are . . . inherently

wrongful.” Id. at 956. The Dissent also cites United States v.

Tobin to insist that the means the Unions employed matter to

the claim-of-right defense’s applicability. Dissent at 14. But

Tobin involved a campaign of telephone harassment

following the defendant’s failed attempt to be hired as a

band’s booking agent—no labor organization was involved.

155 F.3d at 638–39.

70

Villalobos, 748 F.3d at 956. See Dissent at 16 (citing

Villalobos, 748 F.3d at 959) (Watford, J., concurring in the

judgment)).

71

Agnes, 753 F.2d at 299 n.4 (citing 603 F.2d at 419) (second

alteration in original) (emphasis added).

20

violent labor actions.72 The caselaw cannot fairly be read to

foreclose the application of Enmons to non-violent actions

against management undertaken by unions pursuing legitimate

objectives.

In sum, the unique protections from Hobbs Act liability

that Congress has afforded unions in the context of labor

disputes informs and defines our holding. We do not expand

or modify the claim-of-right defense as it applies in the non-

labor context; no fair reading of our analysis will lead to that

result.

We obviously do not condone inappropriate threats or

unreasonably coercive conduct. But since Care One is seeking

relief by means of a RICO claim based on predicate acts of

extortion, its claim is subject to the Unions’ claim-of-right

defense based on the Unions’ legitimate objectives. Since

1973, when the Supreme Court decided Enmons, it has been

clear that “the [Hobbs] Act does not apply to the use of force

to achieve legitimate labor ends.”73 Indeed, the Court

proclaimed then that “[i]n the nearly three [now seven] decades

. . . since the enactment of the Hobbs Act, no reported case has

upheld the theory that the Act proscribes the use of force to

achieve legitimate collective-bargaining demands.”74 If

Congress wishes to change the law so that consideration of a

union’s means plays a role in the analysis, it certainly can do

so. Until it does, Enmons and Brokerage Concepts instruct that

the legitimacy of the Union’s objective is the touchstone of the

analysis.

Labor is simply different. The underlying purpose of a

strike—the ultimate tool of labor—is, after all, inflicting harm

on an employer’s business to exert such economic loss (or

threat of loss) upon that business that the employer agrees to

labor’s demands. Accordingly, as long as unions pursue

legitimate labor objectives, their coercive tactics are simply not

subject to liability under the Hobbs Act.

This does not suggest that the victim of allegedly illegal

union activity is without remedy. There may well be state law

remedies or recourse to other federal laws. However, Care One

seeks recovery under the Hobbs Act, and its reach has well-

defined limits. The Supreme Court long ago interpreted the

72

See supra note 71.

73

Enmons, 410 U.S. at 401.

74

Id. at 407.

21

Act to create a carve-out for union conduct in pursuit of

legitimate labor objectives. That interpretation controls here.

b. Extortion through Sabotage

Care One contends that, based on the timing of the

aforementioned acts of sabotage and the fact that NEHCEU

members had access to both the facilities and patients involved,

a reasonable jury could infer that Union members committed

sabotage.75 We do not disagree. But such an inference, though

reasonable, would fall woefully short of the proof required

under § 6 of Norris-LaGuardia because it is not enough to

transform the acts of any such union members into acts of the

Unions.

Section 6 of the Norris-LaGuardia Act states:

No officer or member of any association or

organization, and no association or organization

participating or interested in a labor dispute,

shall be held responsible or liable in any court of

the United States for the unlawful acts of

individual officers, members, or agents, except

upon clear proof of actual participation in, or

actual authorization of, such acts, or of

ratification of such acts after actual knowledge

thereof.76

The Supreme Court has explained that “‘authorization’ as used

in § 6 means something different from corporate criminal

responsibility for the acts of officers and agents in the course

or scope of employment.”77 Rather, Congress intended to

restrict

liability in labor disputes . . . for unlawful acts of

the officers or members [of unions], although

[they] are acting within the scope of their general

authority as such officers or members [of those

unions] . . . except upon clear proof that the

particular act charged, or acts generally of that

type and quality, had been expressly authorized,

75

Appellants’ Br. at 18.

76

29 U.S.C. § 106.

77

United Bhd. of Carpenters v. United States, 330 U.S. 395,

406 (1947).

22

or necessarily followed from a granted authority

[by the union] or was subsequently ratified [by

the union] after actual knowledge of its

occurrence.78

Thus, a labor union cannot be held liable for the actions

of its members (even if those members are officers of the

union) absent “clear proof of actual participation in, or actual

authorization of, such acts, or of ratification of such acts after

actual knowledge thereof.”79 The standard thus requires

“clear, unequivocal, and convincing proof” rather than “a bare

preponderance.”80 District courts must apply the same

standard at summary judgment that would apply at trial, asking

“whether the evidence presented is such that a jury applying

that evidentiary standard could reasonably find for either the

plaintiff or the defendant.”81 Because § 6 of Norris-LaGuardia

Act requires “clear, unequivocal, and convincing proof” at

trial, the same standard of proof would be required at the

summary judgment level.82

There is a heightened standard here because unions

require heightened protection. The Court explained in United

Brotherhood of Carpenters and Joiners of America that the

limitation set forth in § 6 was intended to:

relieve [labor unions] . . . from liability for

damages or imputation of guilt for lawless acts

done in labor disputes by some individual

officers or members of the organization without

clear proof that the organization or member,

charged with responsibility for the offense,

78

Id. at 407. The Court noted that the Senate Committee

viewed this as “‘a rule of evidence,’ not a ‘new law of

agency.’” Id. at 402. However, the distinction is purely

academic for our purposes and does not affect our analysis.

For a thorough discussion of the complete legislative history

of § 6 of the Norris-LaGuardia Act, see id. at 401–03.

79

29 U.S.C. § 106 (emphasis added).

80

United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 737

(1966).

81

See Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986).

82

See Gibbs, 383 U.S. at 737.

23

actually participated, gave prior authorization, or

ratified such acts.83

When Congress enacted the Norris-LaGuardia Act in 1932, it

did so to “bring some order out of the industrial chaos that had

developed and to correct the abuses that had resulted from the

interjection of the federal judiciary into union-management

disputes on the behalf of management.”84 Federal courts were

then “regarded as allies of management in [their] attempt to

prevent the organization and strengthening of labor unions; and

in this industrial struggle the injunction became a potent

weapon that was wielded against the activities of labor

groups.”85

Moreover, in United Mine Workers of America v. Gibbs,

the Supreme Court noted that while the Labor Management

Relations Act passed shortly after the decision in United

Brotherhood of Carpenters and allowed a less stringent

standard of proof, Congress did not repeal § 6 of the Norris-

LaGuardia Act.86 Rather, it “left it applicable to cases not

arising under the new Act.”87 The Supreme Court took that

opportunity to reiterate that the “driving force” behind § 6 of

the Norris-LaGuardia Act was the “fear that unions might be

destroyed if they could be held liable for damage done by acts

beyond their practical control.”88 It is therefore now beyond

contention that common-law principles of agency and

respondeat superior have no place in assessing liability of

labor unions for the acts of their members or officers for claims

(such as the ones before us) not falling under the Labor

Management Relations Act.

As this case arises under RICO rather than the Labor-

Management Relations Act, it falls under § 6, which applies to

cases “not arising under the [Labor-Management Relations

83

United Bhd. of Carpenters, 330 U.S. at 403.

84

Boys Mkts., Inc. v. Retail Clerks Union, 398 U.S. 235, 251

(1970).

85

Id. at 250.

86

Gibbs, 383 U.S. at 736.

87

Id.

88

Id. at 736–37.

24

Act].”89 The District Court did err in employing the less

stringent Labor Management Relations Act (LMRA) standard,

“that defendants can only be held responsible for the actions of

their members if unions authorized or ratified the acts.”90 In

doing so, it cited Carbon Fuel Co. v. United Mine Workers of

America, which explained that under the LMRA, liability is

limited to those who had “authorized, participated in, or

ratified” the conduct.91 However, that error benefitted Care

One because it allowed Care One a less stringent standard of

proof for surviving summary judgment.

The investigation by the Connecticut State’s Attorney

closed without even identifying any suspects, let alone any

union-member suspects. Furthermore, union membership

alone would not tie the actions of any such members to the

Unions. We have already explained that the Supreme Court

has stressed that common-law agency principles are not

enough to pin the acts of union members (or even union

officers) to the hide of their union for claims not arising under

the LMRA. The law requires that Care One establish that the

Unions authorized or ratified such conduct within the narrow

meaning of § 6 of the Norris-LaGuardia Act, and the evidence

of that must amount to “clear proof” of such authorization or

ratification.92 The evidence here simply does not rise to that

standard.

(i) Authorization

First, there is no admissible evidence that the Unions

authorized the acts of sabotage and vandalism. Care One

reminds us that similar acts were performed at three facilities

targeted by the strike and on the eve of the strike, and that these

acts were similar to the sabotage allegedly connected with a

strike at another employer’s NEHCEU-unionized facility in

2001. Care One suggests that we can connect those dots and

89

Id. at 736. See United Bhd. of Carpenters, 330 U.S. at 403

(applying § 6 to Sherman antitrust prosecution); United States

v. Kemble, 198 F.2d 889, 892 (3d Cir. 1952) (applying § 6 to

Hobbs Act extortion prosecution).

90

Care One, 2019 WL 5541410, at *6 (citing United States v.

White, 322 U.S. 694, 702 (1944) and Carbon Fuel Co. v.

United Mine Workers of Am., 444 U.S. 212, 216–17 (1979)).

91

Carbon Fuel, 444 U.S. at 216.

92

29 U.S.C. § 106.

25

conclude that the Unions authorized the conduct. For support,

they invoke the “mass action” theory, citing Eazor Express,

Inc. v. International Brotherhood of Teamsters.93 Under the

mass action theory, union authorization explains an otherwise

inexplicable or improbable pattern of coordinated conduct by

members.94 The premise is that “large groups of [people] do

not act collectively without leadership and that a functioning

union must be held responsible for the mass action of its

members.”95 The mass action theory emerged to address

situations in which thousands of members in different locations

simultaneously act in concert.96 In contrast, here, there is no

evidence that more than a few people acted and Care One does

not contend otherwise.97 Care One insists that it is applying

the logic underlying the mass action theory and relying on

common sense based on the timing and apparent coordination

of the actions rather than the mass action theory per se.

However, Care One cites no cases that would justify expanding

the logic of the mass action theory to the circumstances here,

and we have found none. The number of actors here falls

woefully short of the numbers needed to infer that the Unions

had to have orchestrated these acts. The number is just too

small for the presumption of centralized Union coordination to

apply. Moreover, even if we were to agree that the timing of

the acts suggests unseen coordination, there is nothing to tie it

to the Unions as opposed to a handful of individual union

members acting on their own. The contrary assumption Care

One relies on is far too tenuous to rise to the level of substantial

proof required by § 6 of the Norris-LaGuardia Act.

Care One also points to certain vague remarks by the

agents of the Union to argue authorization. It argues that Union

documents revealed plans to persuade workers to “become

93

Eazor Express, Inc v. Int’l Bhd. of Teamsters, 520 F.2d

951, 963 (3d Cir. 1975), overruled on other grounds by

Carbon Fuel Co. v. United Mine Workers of Am., 444 U.S.

212 (1979).

94

Id.

95

Id.

96

See Consolidation Coal Co. v. Local 2216, 779 F.2d 1274,

1275 (7th Cir.1985) (applying mass action to when 350,000

to 450,000 coal miners went on strike).

97

See Care One Mgmt., LLC, 2019 WL 5541410, at *6.

26

angry about their working conditions”98 and to take on “more

militant” levels of activity.99 But to satisfy the evidentiary

threshold of Norris-LaGuardia, Care One must present “clear

proof that the particular act charged, or acts generally of that

type and quality, had been expressly authorized, or necessarily

followed from a granted authority.”100 We cannot conclude

that these statements expressly authorized the alleged predicate

acts without greatly weakening the fabric of Norris-LaGuardia

and undermining the congressional intent behind it.

The acts of vandalism, etc., do not “necessarily

follow[]” from these abstract statements.101 Those statements

were in a facilitator lesson-planning worksheet and a written

evaluation for one organizer, respectively.102 Care One also

points to the NEHCEU’s president’s statement to workers that

“the law takes too long” and that NEHCEU “could be

destroyed by the time the law was able to stop [Care One’s]

behavior.”103 Here again, the suggested inference is just too

tenuous a thread to tie the Unions to the acts of vandalism. It

simply does not follow that the Unions were authorizing acts

of vandalism and sabotage by complaining about delays in the

legal process.

Moreover, as the District Court recognized, the

evidence here is to the contrary. Even internally, NEHCEU’s

communications director condemned the behavior. He wrote

to fellow employees stating: “Of course anyone with a pea-

sized brain would realize this isn’t a tactic we would

undertake.”104

Our finding that the evidence could not lead a properly

instructed jury to conclude that the Unions authorized this

conduct is not akin to “nothing to see here; move along,” as our

dissenting colleague suggests. This suggestion coupled with

the assertion that there is “indeed something to see, and a jury

98

JA 5852, a facilitator teaching document with the goal of

“answer[ing] tough questions and redirect[ing] conversations

to an organizing agenda.”

99

JA 5849, a supervisor’s evaluation form for an individual

organizer.

100

United Bhd. of Carpenters, 330 U.S. at 406–07.

101

See id.

102

See JA 5852 and 5849.

103

Appellants’ Br. at 22.

104

JA 6825.

27

should see it,”105 makes clear that the Dissent does not fully

appreciate the heightened standard of review required here.

Under this standard of review, a jury may not “see it” if there

is not clear proof. This does not mean we are saying “move

along” (i.e., grant summary judgment) because we are ignoring

the relevant evidence, but rather because, after a careful review

of said evidence, it clearly falls short of the required standard.

Even the Fry v. Airline Pilots Association International

case, which the Dissent relies on when asserting that “‘[c]lear

proof’ is not an unreachable standard,” supports that the

evidence here fails to reach it.106 The Fry Court stressed that

any alleged authorization would have to be “very obvious.”107

For the reasons discussed above, the evidence here is a far cry

from very obviously suggesting authorization. Moreover, Fry

involved much more convincing evidence than we have here.

This included “the words ‘show no mercy’” written on a union

bulletin board with the names of the people some union

members had harassed listed underneath and evidence that the

union chairperson failed “to deny an allegation that ‘Union

Leadership continue[d] to encourage [post-strike harassment]

and refuse[d] to take any steps to stop it.”108 And even with

this clearer evidence, the Tenth Circuit still found that the proof

was not clear enough to get past summary judgment. Compare

this to our case in which we have both vague statements that

do not clearly incite the vandalism as well as the Unions’

explicit condemnation of the vandalism. If the evidence in Fry

falls short of clear proof of authorization requiring granting the

union’s motion for summary judgment, then the evidence here

necessarily falls short of this heightened standard too.

(ii) Ratification

As explained above, even if the Unions did not

authorize this conduct, they are nevertheless liable if they

ratified it. To show ratification, Care One must show “either

that the union approved the violence which occurred, or that it

participated actively or by knowing tolerance in further acts

which were in themselves actionable under state law or

105

Dissent at 26.

106

Id. at 24 (citing Fry v. Airline Pilots Ass’n, Int’l, 88 F.3d

831, 842 (10th Cir. 1996)).

107

Fry, 88 F.3d at 842–43.

108

Id. at 843.

28

intentionally drew upon the previous violence for their

force.”109 In addition, as we have stressed at length, Care One

would need to show “clear proof” of such ratification.110 Care

One argues that union officials made “no concrete effort to

disassociate themselves from the misconduct,”111 and that

apparent lack of concern is itself enough to show ratification.

It cites Yellow Bus Lines to support this contention.112 In

Yellow Bus Lines, there was evidence that the union local’s

business director, James Woodward, had engaged in several

acts of vandalism including threatening to burn company

buses.113 The president of the union received a letter

describing “with particularity ‘numerous incidents of threats,

violence, property damage, and verbal abuse’ by Woodward

and other strike participants.”114 There was no evidence to

show that the unions acted to investigate or discipline

Woodward (or any other strikers). More importantly,

“Woodward remained on-site as the Local’s man in charge.”115

The court held that evidence was sufficient to show that the

union had liability for Woodward’s action because its inaction

after learning of accusations against Woodward ratified his

conduct.116 Clearly, this case is different. Assuming arguendo

that lack of concern constitutes approval, this record does not

support a conclusion that union officials made no concrete

effort to disassociate themselves from the violence.

NEHCEU’s communications director wrote that the

allegations of vandalism were “very serious indeed” and that

those responsible “should be held fully accountable.”117 This

is in direct contrast to the response of the union in Yellow Bus

109

Gibbs, 383 U.S. at 739.

110

29 U.S.C. § 106.

111

Appellants’ Br. at 26.

112

Yellow Bus Lines, Inc. v. Drivers, Chauffeurs & Helpers

Loc. Union 639, 883 F.2d 132, 136 (D.C. Cir. 1989), on reh’g

en banc, 913 F.2d 948 (1990).

113

Id. at 135.

114

Id. at 136.

115

Id.

116

Id.

117

JA 1068.

29

Lines, which was tantamount to the proverbial “wink and a

nod.”118

Care One argues that a reasonable jury could find the

Unions ratified the sabotage after the fact because the Unions

“sought to ‘mudd[y] the waters’ and ‘rebut, or at least confuse,

the sabotage claims’”119 rather than to assist the police

investigation.120 Despite some of the Unions’ rhetoric, it is far

from clear that the Unions sought to “muddy the waters.”

Indeed, the relevant email that Care One’s argument rests on

merely reported results from a response to a FOIA request. It

described the information from that FOIA response as

“mudd[ying] the waters and support[ing] the contentions of the

workers that” the patients may have removed their identifying

bracelets themselves rather than saboteurs.121 Congress gave

unions increased protection from liability by setting a standard

of clear proof.122 No fair reading of the email suggests that the

Unions approved the actions by even the lowest standard of

proof. It therefore certainly does not establish any such

approval by clear proof.

Care One also points to an email suggesting it would be

“a very bad idea” to participate in the police investigation.123

But read in context, that email explains that the Unions should

not “suggest [they] have information [they] don’t have” and

that they have an obligation to their members even if it turned

out the members were guilty.124 Here, it must be remembered

that subsequent investigation yielded no suspects or implicated

any Union members.

118

We realize, of course, that it is certainly possible that any

statements by the Union condemning the vandalism and

sabotage were made solely to provide “cover” and that any

Union members participating in the vandalism understood

that. However, without sufficient proof that statements

condemning the destruction were nothing more than a

disingenuous self-serving response, we cannot attribute such

nefarious motivations to the Unions or their communications.

119

Appellants’ Br. at 25 (citing JA 5842).

120

Id. (citing JA 5831).

121

JA 5842.

122

29 U.S.C. § 106.

123

JA 5831.

124

Id.

30

Care One also contends that the Unions went as far as

“authoring a baseless article suggesting that Care One ‘staged

the sabotage to make [NEHCEU] look bad.’”125 However, the

article, written by the Unions’ communications director,

attributes the “staged the sabotage” quotation to members and

indeed members who disbelieved the allegations of

sabotage.126 That is not evidence that the Unions had any such

belief. Moreover, even if we were to attribute such a belief to

the Unions, it would still fall short of the clear proof needed to

allow us to conclude that the Unions ratified the acts of

vandalism and sabotage after the fact.

2. Mail and Wire Fraud

a. Unions’ Fact-Checking Process

Care One asserts claims of mail and wire fraud based on

the allegedly false and misleading advertisements. The District

Court granted summary judgment to the Unions on those

claims because the proof of the requisite element of specific

intent to defraud was lacking.127 It found no specific intent to

deceive because the Unions had fact-checking and vetting

procedures in place, and the people who researched, drafted,

and approved the publications believed the advertisements to

be truthful.128

Care One argues that there were material disputes of

fact as to whether such procedures existed or whether the

procedures were followed if they did exist. After reviewing

the affidavits submitted by both sides on the summary

judgment motions, we hold that the trial court did not err. Care

One argues that UHWE Assistant for Strategic Organizing

Amy Gladstein revealed that the Unions lacked such vetting

procedures, but that is a misreading of the record. Gladstein

merely denied that their protocols were as strict as in “a

laboratory.”129 But she emphasized that the Union researchers

were trained to conduct careful research, and that the

advertisements were based on initial fact gathering.130

125

Appellants’ Br. at 25–26 (citing JA 5825).

126

JA 5825.

127

Care One, 2019 WL 5541410, at *9.

128

Id. at *10.

129

JA 3718–19.

130

JA 7994.

31

Care One also contends that a union employee admitted

that communications were published without approval.

However, that employee merely specified that the procedure

did not require a sign-off by him. In doing so, he reaffirmed

that the work had to be “vetted by the research department for

accuracy.”131 Care One points to a communications employee

who admitted that when she was promoted to a senior position,

she could send out certain things without her supervisor’s

“review,” though there were categories of things that still

required her supervisor’s review.132 None of this contradicts

the process the Unions outlined. This process included fact-

checking and vetting communications and not releasing

anything without approval by an officer or senior staff

employee with authority.133 Care One can point to specific

officers or senior staff who did not do any fact-checking, but

that does not negate the evidence that certain researchers and

outside counsel did fact-check, even if others did not.134 There

is information in the record, for example, that cite-checking

was “Megan [Thorsfeldt’s] job.”135

We have previously affirmed summary judgment

dismissal of a defamation claim where defendants filed

uncontradicted affidavits that “averred that they were

convinced of the truthfulness” of their statements.136 Here, the

Unions’ affidavits provide sufficient evidence that the affiants

believed that all the material in the advertisements was truthful

and accurate. None of the portions of the record Care One

relies on raises a genuine issue of fact sufficient to defeat the

Unions’ motion for summary judgment.

131

JA 2761.

132

JA 5308.

133

JA 7994.

134

See JA 2642 (vetting was conducted on the research side

and legal side); JA 5134 (accuracy was the responsibility of

“our research team” and “counsel”); JA 3718 (Gladstein

explaining that “my researchers” were responsible for

accuracy).

135

JA 5327.

136

Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264, 276 (3d

Cir. 1980).

32

b. Reckless Disregard

Care One claims the District Court should have looked

beyond the fact-checking procedures because fraud “may be

effected by deceitful statements of half-truths or the

concealment of material facts” even if the text is true.137 Care

One then argues that we can find specific intent because

advertisements were “(at best) deceitful half-truths” that

advanced the Unions’ scheme and whose purpose was to “harm

Appellants’ business.”138

Specific intent “may be found from a material

misstatement of fact made with reckless disregard for the

truth.”139 However, reckless disregard for the truth cannot be

inferred merely from an intention to injure.140 It requires

“sufficient evidence to permit the conclusion that the defendant

in fact entertained serious doubts as to the truth of his

publication.”141 Failure to investigate before publishing is not

enough to establish reckless disregard, without more.142

Care One points to specific ads and claims the Unions

cherrypicked facts and disrobed them of their necessary

context. In the four ads in question, Care One accuses the

Unions of asking a leading question that implies a negative

answer and highlights negative information, supported by a

non-representative fact or statistic.

For example, as quoted above, Care One points to the

advertisements targeting its staffing. Those advertisements

ask: “Are HealthBridge Nursing Homes Employing Enough

Caregivers For Our Loved Ones?” They then assert that Care

One provided below-average coverage by certified nursing

assistants.143 The ads omit that Care One facilities provide

137

Appellants’ Br. at 43 (citing United States v. Ferriero, 866

F.3d 107, 120 (3d Cir. 2017) (quoting United States v. Bryant,

655 F.3d 232, 249 (3d Cir. 2011)).

138

Appellants’ Br. at 42.

139

United States v. Coyle, 63 F.3d 1239, 1243 (3d Cir. 1995)

(citation omitted).

140

Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S.

657, 666 n.7 (1989).

141

Id. at 688 (citing St. Amant v. Thompson, 390 U.S. 727,

731 (1968)).

142

Id. (citing St. Amant, 390 U.S. at 733).

143

JA 2491.

33

above-average hours of coverage by the higher-skilled

registered nurses (RNs) and licensed practical nurses

(LPNs).144

However, the law of defamation generally recognizes

that a question, “however embarrassing or unpleasant to its

subject, is not an accusation.”145 To premise liability on a

question would “necessarily ensnare a substantial amount of

speech that is essential to the marketplace of ideas.”146

Moreover, the questions’ implied answer is merely an

unfalsifiable “opinion relating to matters of public concern.”147

Even if the Unions were using the questions to assert that Care

One “understaff[s]” their facilities, that assertion would merely

compare Care One’s staffing to a subjectively chosen correct

number.

The same analysis applies to the other questions in the

Unions’ advertisements: “Is HealthBridge Giving Your Loved

One Anti-Psychotic Drugs?,”148 “Overbilled at a HealthBridge

Nursing Home?,”149 and “Who’s in charge At HealthBridge

Nursing Homes?”150 These are all questions rather than factual

misrepresentations. They point out a presumed disparity

between HealthBridge’s behavior and a subjective standard.

Care One suggests that the statistic in the staffing ad is

fraudulent because it implies that Care One understaffs by

relying on information pertaining to the only category of staff

with below-average numbers. Amanda Torres-Price,

communications specialist for UHWE, conceded that the

advertisements were “not pretending to be objective.”151

However, speakers in the public square “have no legal

obligation to present a balanced view.”152 The Unions had no

144

JA 3348–49 and 5642.

145

Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328, 1338

(D.C. Cir. 2015) (citation omitted).

146

Id. at 1339.

147

Weyrich v. New Republic, Inc., 235 F.3d 617, 624 (D.C.

Cir. 2001) (citation omitted).

148

JA 2501.

149

JA 2477.

150

JA 2494.

151

JA 5311.

152

Perk v. Reader’s Digest Ass’n, Inc., 931 F.2d 408, 412

(6th Cir. 1991).

34

duty to give a fair, holistic representation in their

advertisements.

The law does not require the Unions to present a

balanced view in their other advertisements. Care One points

out that the antipsychotics advertisements suggesting its

facilities excessively administered medications relies on a

statistic referring to non-representative groups of patients, for

whom the antipsychotic drugs were often medically

appropriate. The overbilling advertisements were based on one

billing error at only one facility. And the “Who’s in charge”

advertisements implied there was an unhealthy amount of

turnover but cited turnover rates roughly in line with a state

average. Care One doesn’t dispute the actual statistics, merely

the implications and the insinuations arising from them. It is

unrealistic to expect that either side of a labor dispute will

present a balanced view in advertisements pertaining to that

dispute. Moreover, for better or worse, the law does not hold

either party to a labor dispute to a given level of objectivity.153

IV.

For the reasons set forth above, we will affirm the

District Court’s judgment.

153

This does not, of course, license either side to a labor

dispute to say whatever will inflict maximum damage on the

other side with absolutely no regard for the accuracy of those

statements. Here, as we have discussed, the Unions did have

processes in place to maintain a level of accuracy in its public

pronouncements. And the record does not support any

conclusion that those processes were little more than a

Potemkin Village intended only to provide cover so that the

Unions could say whatever they thought would damage Care

One. There is no evidence that the Unions had “serious

doubts” about the truthfulness of the statements. Harte-

Hanks Commc’ns, 491 U.S. at 688.

35

Care One v. United HealthCare, No. 19-3693

JORDAN, Circuit Judge, dissenting

Congress has indeed provided a wide playing field for

unions and businesses to engage in the rough and tumble of

collective bargaining. But that field still has limits. I

respectfully dissent because the Majority Opinion in this case

dismisses troubling evidence of extortionate threats by the

defendant Unions.1 According to the Unions and my

colleagues in the Majority, even threats of criminal prosecution

and crippling regulatory obstruction are simply hard

bargaining, as long as they’re pressed by labor unions, and any

question of whether the Unions actually authorized or ratified

acts of violent sabotage is too weak to go to a jury. I think the

case presents some close questions but there is enough to give

the plaintiff, Care One, its day in court.2 I would therefore

vacate the District Court’s judgment and remand for trial.

I. Labor unions are not immune from RICO liability

predicated on violations of state laws against

extortion.

Because Care One’s RICO claims rely on predicate acts

of “extortion … chargeable under State law[,]” 18 U.S.C.

§ 1961(1)(A), Care One must show that the alleged predicate

acts both violate a state extortion law and satisfy the “generic”

definition of extortion as interpreted in federal case law.

1

I refer to the defendants collectively as the “Unions,”

and, when speaking of one of them, use the singular, “Union.”

2

Like the Majority, I refer to the various plaintiffs in the

singular as “Care One.”

United States v. Kirsch, 903 F.3d 213, 225 (2d Cir. 2018). As

to the first showing, Care One has described in its complaint

several extortion offenses violative of Connecticut,

Massachusetts, and New Jersey statutes. Unlike the federal

Hobbs Act, those state laws list specific things that amount to

extortion, including threats of criminal prosecution or

regulatory obstruction.3 Also unlike the Hobbs Act as it is

interpreted by the Majority, none of those state laws creates a

categorical allowance for labor unions to engage in

extortionate behavior.4 It seems clear to me that Care One has

3

Under Connecticut law, extortion includes, among

other conduct, “compel[ling] or induc[ing] another person to

deliver … property to himself or a third person by means of

instilling in him a fear that, if the property is not so delivered,

the actor or another will … accuse some person of a crime or

cause criminal charges to be instituted against him[.]” Conn.

Gen. Stat. § 53a-119(5)(D). Under Massachusetts law,

extortion includes, among other acts, “malicious[ ] threat[s] to

accuse another of a crime or offence … with intent thereby to

extort money or any pecuniary advantage[.]” Mass. Gen. Laws

ch. 265, § 25. Under New Jersey law, extortion includes,

among other conduct, “purposely and unlawfully obtain[ing]

property of another” by threatening to “[a]ccuse anyone of an

offense or cause charges of an offense to be instituted against

any person” or to “cause an official to take or withhold

action[.]” N.J. Stat. § 2C:20-5(b), (d).

4

Although the statutes in Connecticut and New Jersey

exempt labor action “for the benefit of the group in whose

interest the actor purports to act[,]” those exemptions apply

only to strikes, boycotts, and related collective actions, not

threats of criminal prosecution and regulatory obstruction.

2

shown the predicate acts it alleges as support for its RICO

claim do indeed constitute extortion under state law.

The issue, then, is whether Care One has made the

second necessary showing: that the Unions’ conduct is

“capable of being generically classified as extortionate.”

Scheidler v. Nat’l Org. for Women, Inc., 537 U.S. 393, 409

(2003). More precisely, the question is whether the Unions’

conduct fits the generic definition of “extortion … chargeable

under State law[,]” which is the phrase that appears in RICO.

18 U.S.C. § 1961(1)(A). While at first glance it may seem

paradoxical, the question of what constitutes generic extortion

under state law is not, in this context, a matter of state law. It

is, instead, a matter of federal law under the RICO statute. See,

e.g., United States v. Forsythe, 560 F.2d 1127, 1135 (3d Cir.

1977) (“State law offenses are not the gravamen of RICO

offenses. … To interpret state law offenses to have more than

a definitional purpose would be contrary to the legislative

intent of Congress and existing state law.”). The Majority

equates the generic definition thus developed with the

Conn. Gen. Stat. § 53a-119(5)(F); N.J. Stat. § 2C:20-5(e); see

also United States v. Kirsch, 903 F.3d 213, 224 (2d Cir. 2018)

(reading identical labor exemption to apply only to specific

labor action discussed in same subsection, not other

enumerated acts of extortion in other subsections). The Model

Penal Code appears to operate in the same way. Model Penal

Code § 223.4 cmt. (2)(i) (Am. Law Inst. 1980) (“Paragraph (5)

reaches the threat of collective unofficial sanctions where, for

example, an official of a trade association or union is lining his

own pocket by employing the coercive power that he is

supposed to wield on behalf of his organization.”).

3

definition of extortion found in the Hobbs Act, 18 U.S.C.

§ 1951(b)(2), and so it trains its attention exclusively on that.

(Maj. Op. at 11-13.) But granting the Majority is correct that

the Hobbs Act’s definition of extortion closely tracks the

Supreme Court’s formulation of generic extortion in RICO,5

there is still good reason to understand the two definitions

differently.

As the Majority points out (Maj. Op. at 13-14), the

Supreme Court gave a narrow interpretation to the meaning of

extortion under the Hobbs Act in United States v. Enmons, 410

U.S. 396 (1973). The Court there focused on the particular

wording of the Hobbs Act and held that the word

“‘wrongful’ … limits the statute’s coverage to those instances

where the obtaining of the property would itself be ‘wrongful’

because the alleged extortionist has no lawful claim to that

property”; otherwise, the term “wrongful” would be redundant

since resort to violence is wrongful in itself. Id. at 399-400;

see 18 U.S.C. § 1951(b)(2). The Court also relied heavily on

legislative history, which the Court read as revealing a

congressional intent to steer the statute’s sanctions away from

legitimate labor activity. See Enmons, 410 U.S. at 401-08.

5

Compare 18 U.S.C. § 1951(b)(2) (“obtaining of

property from another, with his consent, induced by wrongful

use of actual or threatened force, violence, or fear, or under

color of official right”), with Scheidler v. Nat’l Org. for

Women, Inc., 537 U.S. 393, 409 (2003) (“obtaining something

of value from another with his consent induced by the wrongful

use of force, fear, or threats”). See also United Bhd. of

Carpenters v. Bldg. & Const. Trades Dep’t, 770 F.3d 834, 843-

44 (9th Cir. 2014) (interpreting terms similarly).

4

The wording chosen by states to outlaw extortion does

not necessarily track the wording of the Hobbs Act, and the

linguistic parsing in Enmons is thus not obviously applicable.6

Nor is there any legislative history behind state laws that

would – as was true with the Hobbs Act – narrow the meaning

of “extortion … chargeable under State law” as a RICO

predicate. 18 U.S.C. § 1961(1)(A). And no authority has been

offered to suggest that, outside of the Hobbs Act as narrowly

interpreted by Enmons, laws against extortion have ever been

generally understood to be inapplicable to labor unions. Cf.

Alice Kramer Griep, Comment, A Study of Statutory Blackmail

and Extortion in the Several States, 44 Mich. L. Rev. 461

(1945) (surveying state extortion statutes and the history of

statutory expansion beyond the common law crime of unlawful

takings by public officials, without any mention of labor

6

My colleagues in the Majority fault me for not giving

a case citation for this proposition. (Maj. Op. at 12 n.43.) I

don’t believe, however, that a case is needed to demonstrate

that state laws define as extortion precisely the things the

Majority excuses here, see supra note 3, or that the Supreme

Court’s effort to excise “wrongful” as redundant in the Hobbs

Act is peculiar to that statute and the labor-violence context in

which the Enmons decision arose.

5

unions);7 3 Wayne R. LaFave, Substantive Criminal Law

§ 20.4(a) (3d ed. 2018) (same).8

7

According to the Majority, “[e]ven a cursory look at

this article reveals that it does not actually support the stated

assertion” that there is a lack of authority, outside of Enmons’s

interpretation of the Hobbs Act, supporting a labor exemption

to extortion laws. (Maj. Op. at 12 n.43.) I will let readers

decide whether the article notes special treatment for labor

unions – or mentions labor unions at all. (Spoiler alert: it does

not.) At any rate, the point I make is straightforward and

should not be controversial: apart from and prior to Enmons’s

interpretation of the Hobbs Act, no one ever thought that labor

unions got an exemption from laws against extortion that apply

to everyone else. A law review article published before

Enmons is perfectly capable of supporting that proposition, and

I have found no authorities between the time of that article’s

publication and the publication of Enmons suggesting the rise

of a labor-union distinction in federal or state laws forbidding

extortion. That the article declines to address certain types of

threats traditionally considered to be outside of extortion law –

“threats which are punishable even though no property is

demanded” (Maj. Op. at 13 n.43 (citing Alice Kramer Griep,

Comment, A Study of Statutory Blackmail and Extortion in the

Several States, 44 Mich. L. Rev. 461, 462 (1945))) – says

nothing about a labor exemption from extortion laws.

8

As more fully discussed below, even when interpreting

the Hobbs Act, we have not understood Enmons as giving a

pass to unions for every kind of extortionate behavior. Rather,

we have joined other courts of appeals in observing that

Enmons pertains to the use of force during labor disputes. See

United States v. Agnes, 753 F.2d 293, 298 (3d Cir. 1985)

6

If the “generic” brand of “extortion … chargeable under

State law” as a RICO predicate is in fact something different

than Hobbs Act extortion, then any discussion here of the

Hobbs Act’s definition of “extortion” is perhaps academic.

But even if, as the Majority assumes, the meaning of

“extortion” is identical in both contexts, I still do not agree with

my colleagues that the claim-of-right defense under the Hobbs

Act extends to the alleged conduct of the Unions, for the

reasons I turn to next.

(interpreting Enmons to hold that “Congress expressly declared

its intent to exclude labor violence from coverage of the Hobbs

Act”), abrogated on other grounds by Smith v. Borough of

Wilkinsburg, 147 F.3d 272 (3d Cir. 1998); see also, e.g., Levitt

v. Yelp! Inc., 765 F.3d 1123, 1131 (9th Cir. 2014) (reviewing

case law reading “Enmons as holding only that the use of

violence to secure legitimate collective bargaining objectives

is beyond the reach of the Hobbs Act”); United States v.

Robilotto, 828 F.2d 940, 945 (2d Cir. 1987) (“The Court held

that, in a labor context, the Hobbs Act ‘does not apply to the

use of force to achieve legitimate labor ends.’” (quoting United

States v. Enmons, 410 U.S. 396, 401 (1973))); United States v.

Castor, 937 F.2d 293, 299 (7th Cir. 1991) (“Whatever the

contours of [the claim-of-right] defense may be, they do not

reach extortions based on threats of physical violence outside

the labor context.”); United States v. Debs, 949 F.2d 199, 201

(6th Cir. 1991) (“Enmons has not been extended beyond its

own facts.”).

7

II. The claim-of-right defense does not protect every

means of economic pressure.

The claim-of-right defense to a charge of extortion has

two distinct requirements: the defendant must have the right to

pursue a particular objective and the right to use the particular

means it has chosen for that pursuit. For the defense to be

operative, both requirements must be met. See United States

v. Cerilli, 603 F.2d 415, 419-20 (3d Cir. 1979) (“The receipt of

money … is generally not inherently wrongful. The wrong

under the Hobbs Act is the manner in which it is obtained.”);

United States v. Clemente, 640 F.2d 1069, 1077 (2d Cir. 1981)

(“In Cerilli, … the Third Circuit determined that the ‘manner’

in which the property is obtained has a bearing on whether the

objective, ‘obtaining the property from another,’ is legitimate.

In other words, the Third Circuit declined to evaluate the

‘objective’ of the defendants in a vacuum, independent of the

conduct involved.”). That two-part rule extends even to the

pursuit of what is lawfully one’s own, so, for example,

extortion includes threats of violence in the collection of a debt.

See United States v. Nakaladski, 481 F.2d 289, 298 (5th Cir.

1973) (upholding jury finding that defendants participated in

threats of violence to collect loan payments). Thus, I disagree

with the Majority’s conclusion that there is simply no limit to

the means that a union can employ to pursue a legitimate

objective. (See Maj. Op. at 21 (“[A]s long as unions pursue

legitimate labor objectives, their coercive tactics are simply not

subject to liability under the Hobbs Act.”).) While my

colleagues assert that “[l]abor is simply different” from every

other participant in our society (Maj. Op. at 21), it is not so

different that, when it comes to the Hobbs Act, all criminality

is excused.

8

My colleagues believe that their anything-goes-for-

unions variation on the claim-of-right defense is supported by

the Supreme Court’s decision in Enmons, 410 U.S. 396, and by

our decision in Brokerage Concepts, Inc. v. U.S. Healthcare,

Inc., 140 F.3d 494 (3d Cir. 1998). (Maj. Op. at 13-16.) But

Brokerage Concepts does not expand on the narrow and

specific holding in Enmons that I have already described, see

supra note 8 and related text, and it certainly does not “rel[y]

on Enmons’s reasoning to cross-apply the claim-of-right

defense” (Maj. Op. at 17 n.61). On the contrary, we expressly

noted in Brokerage Concepts that the facts we faced there were

not like those in Enmons. Brokerage Concepts, 140 F.3d at

523. The difference was that Brokerage Concepts “solely

involve[d] the accusation of the wrongful use of the fear of

economic loss[,]” rather than the fear of labor violence. Id.

And we went on to consider what kinds of economic threats

could be “wrongful[,]” without any regard to whether or not

the threats arose in the labor context. Id. at 523-24. Nothing

in Brokerage Concepts or any other case cited by the Majority

creates a special immunity for labor unions to extort business

concessions through economic fear.

And for good reason. The holding in Enmons was

pinned to a particular reading of the Hobbs Act that, again,

focused on the specific wording of the Act and the idea that

violence is inherently “wrongful.” Id. at 522. That is, the

Court in Enmons made clear that “it would be redundant to

speak of ‘wrongful violence’ or ‘wrongful force’ since … any

violence or force to obtain property is ‘wrongful.’” 410 U.S.

at 399-400. In Brokerage Concepts, however, we observed

that “the use of economic fear in business negotiations … is

not ‘inherently’ wrongful.” 140 F.3d at 523 (emphasis added)

(citing United States v. Sturm, 870 F.2d 769, 773 (1st Cir.

9

1989)). Accordingly, the word “wrongful” is not redundant in

the Hobbs Act when modifying a means of obtaining property

through economic fear, rather than through violence and force.

Id. at 522-23; Sturm, 870 F.2d at 772-73. And because the

word “wrongful” is not redundant in that context, there remains

“the possibility that the use of wrongful economic threats to

obtain property to which the defendant is legally entitled may

[indeed] be prosecutable as extortion under the Hobbs Act.”

Sturm, 870 F.2d at 773; Brokerage Concepts, 140 F.3d at 523-

24.9

I take our observation in Brokerage Concepts that

economic fear differs fundamentally from force to reflect an

understanding that the holding in Enmons – which is limited to

the use of “force or violence to obtain property [in] the labor

context[,]” Brokerage Concepts, 140 F.3d at 523 – does not

9

Again, Brokerage Concepts did not rely on Enmons’s

reasoning – which was supported by a unique textual analysis

and a specific legislative history – and it also did not, as the

Majority implies (Maj. Op. at 17 n.61), abrogate cases

discussing how Enmons is limited to “labor violence[.]”

Agnes, 753 F.2d at 298; Cerilli, 603 F.2d at 420. Indeed, more

recent cases continue to observe the limited applicability of

Enmons. See United States v. White, 810 F.3d 212, 224 (4th

Cir. 2016) (“[O]utside the context of labor relations, the ‘claim

of right’ defense is inapplicable in Hobbs Act cases involving

the use or threatened use of violence.” (footnote omitted));

United States v. Daane, 475 F.3d 1114, 1119 (9th Cir. 2007)

(following Ninth Circuit precedent reading Enmons as

applying only to the use of violence to secure legitimate

collective bargaining objectives).

10

give unions a free pass on all manner of extortion.10 Although

the Majority may find that conclusion “bizarre” (Maj. Op. at

16), it is justifiable and is, in fact, justified by our own case

law. See United States v. Agnes, 753 F.2d 293, 298 (3d Cir.

1985) (interpreting Enmons to hold that “Congress expressly

declared its intent to exclude labor violence from coverage of

the Hobbs Act” (emphasis added)), abrogated on other

grounds by Smith v. Borough of Wilkinsburg, 147 F.3d 272 (3d

Cir. 1998).11 And we are not alone. See United States v. Debs,

10

In arguing from Enmons and our cases interpreting it,

I make no distinction, as the Majority thinks I do (Maj. Op. at

15 & n.54, 17, 19), between conduct during strikes and conduct

during other labor negotiation activities. My colleagues also

say, at one point, that I “manifest[ ] an unwillingness to

concede the reality of labor strife and the pressures surrounding

it” (Maj. Op. at 16), and, at another point, that I am confused

about “whether Enmons applies to non-violent labor actions.”

(Maj. Op. at 20.) I can only respond that I certainly do

recognize the reality that there is labor strife and that there are

real and serious pressures surrounding it, but I do not read the

case law as giving one side free reign to abuse the other.

(Recall that we are bound at this juncture in the case to take the

evidence in the light most favorable to Care One.) Nor am I

confused about Enmons. I simply disagree with my

colleagues’ assertion that “[t]he caselaw cannot fairly be read

to foreclose the application of Enmons to non-violent [labor]

actions[.]” (Maj. Op. at 20.)

11

The Majority, meanwhile, must rely exclusively on

other courts of appeals to support its position “that Enmons’s

11

949 F.2d 199, 201 (6th Cir. 1991) (declining to “hold that

because some illegality in union activity is justifiable every

illegality, including extortion, must also be within the orbit of

Enmons[,]” which “would immunize union members from

sanction so long as their otherwise illegal action is committed

in the context of labor activity”); 86 C.J.S. Threats § 33 (2017)

(“[T]he Act’s exception for the use of force to achieve

legitimate labor ends does not apply to immunize union

members from sanction for all labor-related illegal actions.”).

And limiting Enmons to the labor-violence context does not, as

the Majority implies, create any perverse incentives for unions

to resort to “more militant tactics” (Maj. Op. at 16), because

there are other legal limits on violent conduct.12 See United

States v. Mulder, 273 F.3d 91, 104 (2d Cir. 2001) (approving

jury instruction on labor exception to Hobbs Act, where the

instruction explained that the “exception does not imply that

violence is lawful or proper in general[; o]bviously, it is

holding is generally applicable to labor-management

conflicts[,]” not just labor violence. (Maj. Op. at 16-18.)

12

E.g., Conn. Gen. Stat. § 53a-60(a) (criminalizing as

second degree assault when someone, “[w]ith intent to cause

serious physical injury to another person, … causes such injury

to such person or to a third person”); Commonwealth v. Dorvil,

32 N.E.3d 861, 866 (Mass. 2015) (defining “assault and

battery” as “the intentional and unjustified use of force upon

the person of another, however slight”); N.J. Stat. § 2C:12-1(1)

(criminalizing as assault when someone “[a]ttempts to cause or

purposely, knowingly or recklessly causes bodily injury to

another”).

12

not”).13 Unlike my colleagues, I’m confident that union

leaders are smart enough to avoid concluding, “If we can’t

extort management with wrongful threats of criminal

prosecution and regulatory holdups, let’s just shoot them.”

Accordingly, I would not ignore, as the Majority does,

our cases addressing the extortionate use of economic fear,

simply because the alleged extortionist is a labor union. In

those cases, we considered the means pursued when we were

judging entitlement to the claim-of-right defense. In

Brokerage Concepts, for example, we asked “whether the

defendants’ use of economic fear in the context of hard

business bargaining constitutes wrongful conduct amounting

to extortion for civil RICO purposes[.]” 140 F.3d at 501. The

defendant in that case conditioned its approval of a pharmacy’s

admission into the defendant’s health insurance network on the

pharmacy’s discontinuation of its contract with a consultant,

the plaintiff. Id. The pharmacy acceded, so the consultant

13

The Majority correctly notes that in United States v.

Mulder, 273 F.3d 91 (2d Cir. 2001), certain jury instructions –

including those proposed by the parties and those ultimately

used by the court – were “correct[,]” but the Majority then

focuses only on the facts of that case, in which the union

defendants threatened both slowdowns and violence to secure

“no-show jobs[.]” Id. at 98-99. (Maj. Op. at 15 n.55.) The

Majority omits the court’s discussion of what made certain

instructions “correct.” Among the “legally correct” proposed

instructions was one that “may have helped the jury better

understand the counter-intuitive proposition that the use of

violence in a labor dispute does not violate the Hobbs Act.”

Mulder, 273 F.3d at 105 (emphasis added).

13

sued. “[W]e conclude[d] that [the plaintiff’s] extortion claim

can only survive if [the pharmacy] had a right to pursue its

business interests free of the fear that it would be excluded

from [the defendant’s] provider network.” Id. at 503. We thus

explicitly undertook to consider the lawfulness of the

defendant insurance company’s use of economic leverage, the

refusal to deal, not just its objective of ending the contract. See

also United States v. Tobin, 155 F.3d 636, 640-41 (3d Cir.

1998) (addressing threats of unrelated lawsuits and bad

publicity from an individual angry at not being hired); Cerilli,

603 F.2d at 418 (addressing the government’s leasing of

equipment conditioned on lessors’ political payments).

I do, of course, agree that the Unions here had every

right to pursue favorable terms in a collective bargaining

agreement. That is a perfectly lawful objective, and they were

entitled to pursue it aggressively, including with a strike, which

naturally threatens economic loss to the business owner. By

definition, as my colleagues note, “[t]he underlying purpose of

a strike … is … to exert such economic loss (or threat of loss)

upon [a] business that the employer agrees to labor’s

demands.” (Maj. Op. at 21.) But that does not mean that

everything that threatens economic loss is merely hard

bargaining. From the proposition that some means of

economic pressure are proper, it does not follow that all means

of economic pressure are proper. It is likewise fallacious to

assert, as the Majority does, that unions are categorically

shielded from Hobbs Act liability for every kind of economic

coercion they may employ. (Maj. Op. at 18.)

Imagine, for instance, that in pursuit of employment, an

individual threatens an employer with financial ruin via a

never-ending campaign of sham civil litigation, unless she is

14

hired. The Majority seems to agree that the threat would go

beyond mere hard bargaining protected by a claim-of-right

defense. (Maj. Op. at 20 n.69.) Indeed, we dealt with that

precise scenario in United States v. Tobin, 155 F.3d 636 (3d

Cir. 1998), denying a claim-of-right defense when the

defendant, who was denied employment, “threatened unrelated

lawsuits alleging sexual harassment” instead of “legal action to

enforce the oral contract that she claimed existed.” Id. at 640.

Now imagine the same scenario, except the threat comes from

a union official on behalf of the individual seeking

employment and is backed by the union’s vastly larger

litigation budget. Suddenly, according to the Majority, the

threats are shielded from Hobbs Act liability. (Maj. Op. at 18.)

That cannot be.

The question, then, is whether the Unions used lawful

means to obtain their legitimate end.14 A sound test for

14

I am assuming here that the Unions’ objective really

was legitimate. There is evidence in this record from which

one could conclude that even that is not so. For the Unions,

achieving a collective bargaining agreement may have taken

second place to using Care One as an example of what will

happen to a business if it has the temerity to push back on labor

demands. Since the Unions arguably selected Care One as a

target for union activity because they thought Care One would

be susceptible to threats of criminal prosecution (see J.A. at

2347 (identifying Care One as among “potential campaign

targets”)), it is not farfetched to believe that reaching an

agreement was not the Unions’ primary objective; publicly

pounding a business and its owner was. That is certainly what

Care One believes. (See Reply Br. at 11 (quoting testimony

that the Unions’ objective was to “bring [Care One] to [its]

15

assessing the lawfulness of the means, and thus the availability

of a claim-of-right defense, is to ask whether there is a

reasonably close relationship – a nexus – between a proper

claim and the threatened harm. Without such a nexus, the

lawfulness of the means is suspect. See United States v.

Jackson, 180 F.3d 55, 70 (2d Cir.) (“We do … view as

inherently wrongful the type of threat to reputation that has no

nexus to a claim of right.”), rev’d on reh’g on other grounds,

196 F.3d 383 (2d Cir. 1999); United States v. Villalobos, 748

F.3d 953, 959 (9th Cir. 2014) (Watford, J., concurring in the

judgment) (concluding that the claim-of-right defense was

inapplicable because “no nexus existed between the threat [of

testifying in a criminal prosecution] and the property

demanded”). Requiring a nexus eliminates a safe haven for

threats of a collateral nature. People generally recognize that

individuals have a right to withhold their labor while

negotiating about the value of it. Threatening to fabricate a

criminal charge against a negotiating counterparty is, by

contrast, not something reasonably related to a labor

negotiation and would not likely be seen as such by anyone

with a sense of simple justice or a passing familiarity with state

extortion laws.

Applying the reasonable-nexus test here, I would hold

that Care One has presented serious evidence that the Unions’

threats of criminal prosecution and regulatory obstruction

lacked any justifiable nexus to their ongoing labor

knees” (second alteration in original)).) But, for the sake of

argument, I take it that a legitimate objective was what the

Unions were driving at.

16

negotiations.15 Taking the view most favorable to Care One,

as we must,16 a jury could rightly say that the threats exceed

what we’ve called “hard bargaining.” Brokerage Concepts,

140 F.3d at 522. As already noted, we addressed in Brokerage

Concepts a threatened refusal to deal, where two private parties

were engaged in discussion over a mutually beneficial

exchange. Id. at 503. That is a world apart from threatening

to engage the power of the state to destroy a business that won’t

capitulate to a negotiating partner’s demands. Federal courts

have repeatedly recognized the potentially extortionate nature

of holding up regulatory approvals or invoking criminal

15

If the Unions had threatened regulatory or criminal

pressure that was directly related to their working conditions

or CBA, for example threatening to file a legitimate complaint

with the National Labor Relations Board, then summary

judgment might well have been appropriate. Here, however,

the nexus between threat and objective appears untenable. As

discussed herein, infra Section III, Care One presents evidence

that the Unions threatened criminal prosecution and regulatory

obstruction in areas that were unrelated to their working

conditions, including Care One’s Medicare billing practices

and infrastructure investment.

16

In evaluating the Unions’ motion for summary

judgment, we must determine whether there are any genuine

disputes of material fact, and if not, we view the evidence in

the light most favorable to Care One and decide whether the

Unions are entitled to judgment as a matter of law. Fed. R.

Civ. P. 56; Scott v. Harris, 550 U.S. 372, 380 (2007); Celotex

Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986).

17

investigations,17 and well-established law elsewhere confirms

that threats to report a crime18 or to manipulate regulatory

17

See, e.g., United States v. Williams, 952 F.2d 1504,

1514 (6th Cir. 1991) (“In this case, defendant’s exploitation of

the victims’ fears was based on the implied threat that, unless

payments were forthcoming, rezoning would never take place,

and the victims would suffer a devastating economic loss.”);

United States v. Zappola, 677 F.2d 264, 269 (2d Cir. 1982)

(“Congress meant to punish as extortion any effort to obtain

property by inherently wrongful means, such as force or threats

of force or criminal prosecution, regardless of the defendant’s

claim of right to the property.”); United States v. Pranno, 385

F.2d 387, 389 (7th Cir. 1967) (upholding Hobbs Act extortion

conviction for conduct “threatening … that [a] building permit

would not be issued”); United States v. Edwards, 324 F. Supp.

2d 10, 13 (D.D.C. 2004) (in denying motion for acquittal,

noting that indictment charged the defendant for extortion

because he, among other things, “caus[ed the victim] to

encounter oversight and regulatory problems”).

18

See, e.g., Conn. Gen. Stat. § 53a-119(5) (“A person

obtains property by extortion when he compels or induces

another person to deliver such property to himself or a third

person by means of instilling in him a fear that, if the property

is not so delivered, the actor or another will … accuse some

person of a crime or cause criminal charges to be instituted

against him[.]”); Flatley v. Mauro, 139 P.3d 2, 22-23 (Cal.

2006) (concluding that certain threats to accuse the plaintiff of

committing crimes “constitute criminal extortion as a matter of

law”); People v. Watson, 11 N.W.2d 926, 928 (Mich. 1943)

(interpreting extortion statute as “cover[ing] a threat merely to

publicly accuse another of a crime”); O’Neil v. State, 296 N.W.

18

authorities19 can constitute extortion. Threats like that fit the

definition of extortion because victims have “a legal

entitlement to be … free of the fear” so engendered. Id.

Rather than categorically exempting such behavior

from liability, we ought to be directing the District Court to

send to a jury the question of whether the Unions here

wrongfully exploited threats of regulatory obstruction and

criminal prosecution and so, in a manner that constitutes

extortion, brought to bear the power of government to grind

down a business in the midst of labor negotiations.

III. The Unions threatened to continue leveraging

criminal and regulatory pressure points unless their

economic demands were met.

The District Court concluded that Care One presented

no evidence of threats, and the Majority does not take issue

with that conclusion. I would hold that the District Court erred

96, 100 (Wis. 1941) (rejecting proposition that “maliciously

threaten[ing] to accuse the wrongdoer of the crime with the

intent thereby to extort money from him” was lawful);

McKenzie v. State, 204 N.W. 60, 63 (Neb. 1925) (discussing a

statute “mak[ing] it unlawful to maliciously threaten to accuse

another of a crime … done with intent to extort from or to

compel action against the will of the person so threatened”).

19

See N.J. Stat. § 2C:20-5(d) (“A person extorts if he

purposely threatens to … cause an official to take or withhold

action[.]”); Model Penal Code § 223.4 (requiring the

perpetrator to obtain property by “threatening” to, among other

things, “cause an official to take or withhold action”).

19

because Care One certainly did present evidence from which a

jury could reasonably conclude that the Unions threatened to

continue their campaign of impugning Care One to law

enforcement and regulatory authorities, unless Care One met

the Unions’ collective bargaining demands.

First, the record supports an inference that the Unions

threatened a criminal investigation. That may not be the only

possible conclusion on this record, but it is a rational one and

would be supported by clear proof.20 In 2009, the Service

Employees International Union “assess[ed] [Care One

facilities] as potential campaign targets” to extract labor

concessions because data mining revealed the possibility of

Medicare fraud. (Joint Appendix (“J.A.”) at 2347.) In other

20

In the Norris-LaGuardia Act, Congress provided

special protections to unions and their members when it comes

to litigation involving labor disputes, including the protection

of a heightened burden of proof. United Bhd. of Carpenters v.

United States, 330 U.S. 395, 401-03 (1947). Section 6 of that

Act provides:

No officer or member of any association or

organization, and no association or organization

participating or interested in a labor dispute,

shall be held responsible or liable in any court of

the United States for the unlawful acts of

individual officers, members, or agents, except

upon clear proof of actual participation in, or

actual authorization of, such acts, or of

ratification of such acts after actual knowledge

thereof.

29 U.S.C. § 106.

20

words, there is reason to believe that, since before the start of

contract negotiations, the Unions had planned on using

allegations of Medicare fraud for leverage against Care One.

And there is substantial evidence that Care One was both meant

to understand and in fact did understand that such allegations

were being used as negotiating leverage. (See J.A. at 3697-98

(Union attorney confirming that request to investigate

Medicare fraud “was one of the leverage points”), 4400 (Care

One representative testifying that after seeing letter alleging

questionable Medicare billing practices, he understood the

“message [to be] that, this is what’s coming unless you agree

to … their demands”).) Care One representatives were told

that they would be driven out of business in Connecticut unless

collective bargaining demands were met.21 A Union

representative hedged a bit but affirmed he had essentially said

just that. (See J.A. at 4892 (“I may have” said “something

along [the] lines” of “HealthBridge needed to agree to [the

collective bargaining] agreement and increase payments into

21

(See J.A. at 4374 (“[I]f we didn’t do what he wanted

then he is going to look to get rid of our businesses” because

“we understood the relationship with the [Union] and the

politicians in Connecticut and we understood that the [Union]

had the ability to have the politicians create issues for us.”),

4178 (“I don’t remember exactly how he phrased it, but the gist

of what he said was we need these contracts, if you can’t do it,

we will help you find somebody who can buy these places that

can do it, and you just can get out of Connecticut.”), 4373 (“I

remember that [a Union representative] essentially said that if,

if we didn’t agree to the pattern contract that, you know, we’d

have to leave the State of Connecticut or he would drive us out

of the State of Connecticut or something like that.”).)

21

the pension plan, otherwise it would need to leave the state of

Connecticut[.]”).) Eventually, the Unions solicited a letter

from United States Senator Richard Blumenthal to the

Department of Justice suggesting that it pursue a criminal

investigation against Care One. The Unions then ensured that

a copy of that letter was delivered to Care One.

There is also ample evidence that the Unions’

regulatory petitioning was undertaken in service of their labor

negotiations. After Care One filed with the Massachusetts

Public Health Council a Determination of Need Application,

seeking to spend more than four million dollars on a

“[s]ubstantial renovation of [a] skilled nursing facility” (J.A. at

2552), an affiliate of the Unions filed an opposition and

requested a public hearing. At that hearing (nearly a year

later), two Union members opposed the renovations,

“alleg[ing] that they had been wrongfully dismissed from their

longstanding jobs because of their support for the formation of

a union at the nursing home.” (J.A. at 2557.) The opposition

was obviously unrelated to the nature of the hearing, and the

regulator concluded as much. (See J.A. at 2557 (“Staff did not

find these comments to be pertinent to … [the government’s]

regulatory authority in its review of this application.”).)

During a deposition, a Union official acknowledged that their

opposition “was for an objective other than blocking the

repairs[.]” (J.A. at 3382.)

The following year, the Unions similarly opposed an

application by Care One to close a facility in Connecticut. A

Union official stated in an internal email that the opposition

“really has little to do with the closure issue, we just want to

go after the people who are going after us.” (J.A. at 2546.)

Care One asserts that the Unions’ opposition resulted in a six-

22

month delay of the closure. The entirety of the Unions’

pressure campaign should be viewed in the aggregate. See

Tobin, 155 F.3d at 640-41 (considering defendant’s various

“actions [that] went far beyond” hard bargaining). From that

perspective, a jury could find that the threat of regulatory

holdup in the Connecticut proceeding was apparent from the

whole of the Unions’ behavior during the negotiations. See

Nakaladski, 481 F.2d at 298 (holding that evidence

demonstrating history of extortionate extensions of credit

supported the finding that later extensions were also intended

to be extortionate).

The District Court adopted too narrow an understanding

of what can constitute extortionate behavior, and so has the

Majority. There is evidence showing that the Unions

threatened Care One with criminal investigation and caused

baseless regulatory holdups. In light of that evidence – which,

as just described, includes the Senator Blumenthal letter and

the Massachusetts and Connecticut regulatory oppositions – I

would say there is enough to submit to a jury the question of

whether there is clear proof that extortionate threats actually

occurred.

IV. Whether the Unions authorized or ratified the July

2nd sabotage should be put to a jury.

As the Majority rightly concludes, a jury could infer that

Union workers committed acts of sabotage against Care One.

(Maj. Op. at 21-22.) Unlike the Majority, however, I think a

reasonable and properly instructed jury could also infer from

the Unions’ prior statements, from the coordinated timing of

the sabotage, and from the subsequent obfuscation by the

Unions, that they authorized or ratified those acts. In other

23

words, a reasonable jury could find that Care One’s evidence

meets the “clear proof” evidentiary burden required by Section

6 of the Norris-LaGuardia Act.22 “Clear proof” is not an

unreachable standard. See, e.g., Yellow Bus Lines, Inc. v.

Drivers Local Union 639, 883 F.2d 132, 136 (D.C. Cir. 1989)

(concluding “that a reasonable jury could have found ‘clear

proof’ of union ratification or authorization[,]” which a union

can accomplish “without going so far as to openly encourage

or embrace the tactics” deployed by members); see also Fry v.

Airline Pilots Ass’n, Int’l, 88 F.3d 831, 842 (10th Cir. 1996)

(“allowing a case-by-case determination based on the unique

facts of each case” because “[t]he terms ‘participation,’

‘authorization,’ and ‘ratification’ are fact based”). It does not

mean proof beyond a reasonable doubt. I understand it to be

something akin to the familiar standard of “clear and

convincing evidence,” and there is enough here that a jury

should have a chance to consider the evidence.

On July 2, 2012, the night before multiple Union-

organized strikes were scheduled to begin, acts of sabotage

took place simultaneously at three Care One facilities. There

is evidence that, in advance of that sabotage, the Unions

engaged in inflammatory rhetoric and encouraged labor

organizers to spark “greater and more militant levels of

activity.” (J.A. at 5849.) The president of one of the Unions

told workers that “the law takes too long” and that his Union

“could be destroyed by the time the law was able to stop [Care

One’s] behavior.” (Opening Br. at 22 (alteration in original)

(quoting Defs. S.J. Reply at 5).) I think a jury could reasonably

see those communications and the multiple, simultaneous acts

22

See supra note 20.

24

of sabotage that immediately followed as clear proof of the

Unions’ authorization of the sabotage. See United Air Lines,

Inc. v. Air Line Pilots Ass’n, Int’l, 563 F.3d 257, 272 (7th Cir.

2009) (“An employer may meet the clear proof standard” by

relying on evidence of union members’ unlawful conduct “in

combination with evidence of a union’s coded communications

to its members to engage in an unlawful job action.”).

Added to that evidence is the Unions’ failure to

cooperate with the police investigation of the sabotage. One

Union leader wrote in an email that “we have an obligation to

our members even when they are totally in the wrong, if that

proves to be the case.” (J.A. at 5831.) That leader also wrote

an email strategizing how to “rebut, or at least confuse, the

sabotage claims” during the investigation. (J.A. at 5842.)

Thus, a logical inference of ratification under an agency theory

is permissible, and the District Court usurped the role of the

jury by concluding that Care One had not presented clear proof

of that. See Cox v. Adm’r U.S. Steel & Carnegie, 17 F.3d 1386,

1409 (11th Cir.) (“From the Union’s failure to act, a reasonable

jury could conclude that the Union ‘knowingly tolerated’ the

situation, and thereby ratified it.”), modified on reh’g on other

grounds, 30 F.3d 1347 (11th Cir. 1994). And the evidence of

authorization and of ratification is mutually reinforcing, each

piece strengthening the inferences to be drawn from the other.

I do not believe, as my colleagues do, that Care One’s

evidence fails as a matter of law to meet the required

evidentiary standard. The Majority’s and the Unions’

insistence that no fair reading of the evidence could lead a

properly instructed jury to conclude that the Unions crossed the

line into unlawful behavior has the ring of “nothing to see here;

move along.” I think the record shows that there is indeed

25

something to see, and a jury should see it. The Majority’s

efforts to distinguish the facts in Fry v. Airline Pilots

Association, International, 88 F.3d 831 (10th Cir. 1996), from

the facts here (see Maj. Op. at 28), demonstrate precisely why

a jury should look at all the evidence. What has been offered

as proof of authorization or ratification goes well beyond only

the “vague statements” and post-hoc “condemnation of the

vandalism” that the Majority addresses. (Maj. Op. at 28.)

While the Majority is correct that the Norris-LaGuardia Act

reflects Congress’s view that “unions require heightened

protection” in exercising their right to collectively bargain

(Maj. Op. at 23), it is just as true that businesses deserve better

protection than none at all, which is what the Majority’s

interpretation of the standard of proof appears to provide.

In sum, I would vacate and remand to allow a jury to

consider whether the Unions threatened a campaign of

regulatory opposition and criminal prosecution, a campaign

with no proper nexus to their labor negotiations, and whether

they authorized or ratified acts of sabotage. A fair-minded and

properly instructed jury might well side with the Unions, but it

could side with Care One, and Care One should have its day in

court.

26