Petition for Writ of Certiorari — River Birch, Incorporated, et al., Petitioners v. Waste Management of Louisiana, L.L.C.

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APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-30139

WASTE MANAGEMENT OF LOUISIANA, L.L.C.,

Plaintiff-Appellant

v.

United States Court of

Appeals Fifth Circuit

FILED

April 10, 2019

Lyle W. Cayce

Clerk

RIVER BIRCH, INCORPORATED; ALBERT J.

WARD, JR.; FREDERICK R. HEEBE; HIGHWAY

90, L.L.C.,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Louisiana

Before DAVIS, COSTA, and OLDHAM, Circuit

Judges.

W. EUGENE DAVIS, Circuit Judge:

This appeal challenges the district court’s order

granting partial summary judgment in favor of Defendants River Birch, Inc., Albert Ward, Frederick

Heebe and Highway 90, L.L.C (hereinafter sometimes

collectively referred as “River Birch”). Plaintiff Waste

Management alleged that Defendants bribed former

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New Orleans Mayor Ray Nagin to shut down a landfill

opened in the city in the aftermath of Hurricane

Katrina. Plaintiff was the operator of the shuttered

landfill, and Defendants owned and operated competing landfills. Plaintiff alleged that the closure of its

Chef Menteur landfill caused it to lose business that

accrued to the benefit of its competitor, the River

Birch landfill. On summary judgment, the district

court concluded that the Rule 56 evidence presented

no jury question regarding the essential causation element to Plaintiff’s civil action under the Racketeer

Influenced and Corrupt Organizations Act (“RICO”),

18 U.S.C. § 1962(c) and (d). Specifically, the district

court, without considering whether Defendants’

$20,000 campaign contribution was a bribe, held that

the summary judgment evidence failed to create a

genuine issue of material fact to allow a jury to find

that this payment was the but for and proximate

cause of Nagin’s decision to shut down Plaintiff’s

landfill at Chef Menteur Highway.

Upon careful review of the summary judgment record, however, we disagree. We are persuaded that the

evidence, which is primarily circumstantial in nature,

is sufficient for a jury to make positive findings on

both Plaintiff’s claim that the $20,000 payment to

Nagin was a bribe and that the bribe was causally related to Nagin’s action in shuttering the Chef Menteur landfill. We therefore vacate the district court’s

judgment and remand this case for further proceedings.

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I. BACKGROUND

In August 2005, after the passage of Hurricane

Katrina, which devastated large portions of New Orleans, there was an urgent need for additional landfill

capacity in which to deposit the extensive waste.

Given the scope of the damage, Mayor Ray Nagin 1 declared a state of emergency on August 31, 2005 and

renewed that emergency declaration fifteen times.

The final renewal was issued on November 3, 2006,

and it expired thirty days later.

In November 2005, Waste Management submitted

a proposal to open a landfill on Chef Menteur Highway in New Orleans East. Although authorization for

such a landfill would ordinarily require a conditional

use permit from the New Orleans City Council, Mayor

Nagin believed that the city had an immediate need

for additional landfill capacity. On February 9, 2006,

Nagin, pursuant to his emergency declaration, issued

Executive Order CRN 06-03 to suspend provisions of

the comprehensive zoning ordinance for six months to

authorize the construction and operation of a landfill

at the Chef Menteur location. The City of New Orleans then entered into a written agreement with

1 Nagin was the Mayor of the City of New Orleans from May

2002 to May 2010. In 2013, a federal grand jury returned a 21count indictment against Nagin, charging him with one count of

conspiracy to commit honest-services wire fraud and bribery; six

counts of bribery; nine counts of honest-services wire fraud; one

count of conspiracy to commit money laundering; and four counts

of filing false tax returns. After trial, the jury returned guilty

verdicts on all counts of the indictment, except for one count of

bribery. The district court sentenced Nagin to ten years in

prison. See United States v. Nagin, 810 F.3d 348 (5th Cir. 2016).

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Waste Management to open the landfill; this agreement, however, did not mention an end date. On February 14, 2006, Nagin submitted an emergency disaster cleanup site request for approval to the Louisiana

Department of Environmental Quality (“LDEQ”) to

open the landfill at Chef Menteur for “the duration of

the Hurricane Katrina disaster cleanup efforts, at

this time estimated to be 12 months.” It is uncontested that Nagin had authority to extend the sixmonth suspension of the zoning ordinance at least until his emergency powers expired on December 3,

2006.

Mayor Nagin’s order authorizing the landfill was

not well-received by residents of New Orleans East or

by the City Council. On April 6, 2006, the City Council

passed a resolution condemning Nagin’s February 9

executive order based on community opposition to the

Chef Menteur landfill.

Around this time, Mayor Nagin was engaged in a

hotly contested campaign for re-election. A runoff was

scheduled for May 20, 2006. Two weeks before the

runoff election, Mayor Nagin called Defendant Ward

and asked for a campaign contribution. Ward discussed this request with Heebe, and they decided to

make a $20,000 contribution through four shell corporations established by Defendants—each donating

$5,000. 2 The contribution was made on May 16, 2006.

2 Under Louisiana election law, donating to campaigns

“through or in the name of another, directly or indirectly” is illegal. LA. R.S. § 18:1505.2(a)(1). Moreover, the campaign contribution limit per individual in this election was $5,000. See id.

§ 18:1505.2.

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According to Nagin, however, he did not remember

the conversation with Ward and was not aware of the

contribution. Nagin was subsequently re-elected

mayor.

On July 13, 2006, Nagin announced in a court affidavit—in a lawsuit secretly financed by Defendants—that he would not extend his February 9 executive order authorizing the Chef Menteur landfill and

would allow it to expire on August 14, 2006. On August 14, the City sent a cease and desist letter to

Waste Management, ordering the closure of the landfill.

II. PROCEDURAL HISTORY

Waste Management filed the instant RICO action

in September 2011. In its first amended complaint,

Plaintiff alleged that Defendants bribed Henry Mouton, 3 a former commissioner for the Louisiana Department of Wildlife and Fisheries, to influence Nagin to

shut down the Chef Menteur landfill. The district

court dismissed the claims without prejudice because

the amended complaint did not allege how Mouton’s

3 On February 25, 2011, Mouton was charged with one count

of conspiracy to receive illegal payoffs by an agent of a program

receiving federal funds, in violation of 18 U.S.C. § 371; three

counts of receipt of illegal payoffs by an agent of a program receiving federal funds, in violation of 18 U.S.C. § 666(a)(1)(B); and

four counts of making false statements to federal agents, in violation of 18 U.S.C. § 1001(a)(2). On June 1, 2011, Mouton pled

guilty to conspiracy to receive illegal payoffs, pursuant to a plea

agreement with the Government. See United States v. Mouton,

No. 11-CR-48, 2013 WL 2455934, at *1–2 (E.D. La. June 5, 2013).

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conduct was the but for and proximate cause of

Nagin’s decision.

Waste Management next filed a second amended

complaint, alleging that (1) Mouton’s lobbying and (2)

Defendants’ campaign contribution to Nagin led to

the landfill’s closure. On March 27, 2015, the district

court dismissed the action insofar as the alleged bribery of Mouton was concerned. But the court did not

dismiss the claims based on allegations concerning

the $20,000 campaign contribution to Nagin.

In its third amended complaint, Waste Management included all of the factual allegations regarding

the Defendants’ conduct with respect to both Mouton

and Nagin. Defendants filed another motion to dismiss and a motion to strike the allegation relating to

Mouton’s role in the scheme to shut down the landfill.

The district court denied their motions. Over a year of

discovery then followed, including depositions of Mouton and Nagin.

After discovery, Defendants moved for partial

summary judgment, arguing that Plaintiff failed to

establish that the campaign contribution to Nagin

constituted bribery. Defendants further argued that,

even if it was bribery, it was not the but for and proximate cause of Nagin’s decision to close down the Chef

Menteur landfill. The district court agreed and dismissed Plaintiff’s RICO claims, stating that “the circumstantial evidence on which Waste Management

relies is far too speculative and conclusory to permit

a reasonable trier of fact to find the requisite causal

connection.” We now consider the issues presented in

this appeal below.

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III.

RULE 12(B)(6) DISMISSAL AS RELATED

TO HENRY MOUTON

A. Standard of Review

Before examining the summary judgment evidence, we briefly address Waste Management’s appeal of the district court’s March 27, 2015 order granting Defendants’ Rule 12(b)(6) motion, which dismissed Plaintiff’s suit “insofar as those claims are

predicated on Defendants’ alleged bribery of Mouton.”

We review the district court’s grant of a motion to dismiss de novo. 4 Dismissal is appropriate when the

plaintiff has failed to allege “enough facts to state a

claim to relief that is plausible on its face.” 5

B. Analysis

Here, Plaintiff’s second amended complaint alleges that Mouton—who pled guilty to accepting

bribes from Defendants for attempting to close down

other landfills—was also bribed by Defendants to assist in persuading Nagin to shutter the Chef Menteur

landfill. According to Plaintiff, this scheme was “part

of a well-orchestrated campaign to unlawfully and unfairly influence the approval, permitting, and operations of the River Birch Defendants’ landfill competitors.” Based on the pleadings, we find that the second

amended complaint alleged a plausible claim of Mouton’s involvement in the instant case. The allegations,

4 Wampler v. Sw. Bell Tel. Co., 597 F.3d 741, 744 (5th Cir.

2010).

5 Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)).

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if true, warrant relief under RICO. 6 We therefore vacate the district court’s Rule 12(b)(6) ruling insofar as

it precludes consideration of Defendants’ alleged bribery of Mouton and his efforts to further Defendants’

alleged scheme to shutter the Chef Menteur landfill.

IV. SUMMARY JUDGMENT

On appeal, Defendants argue that Plaintiff failed

to put forth competent evidence that their $20,000

campaign contribution to Nagin’s re-election campaign was a bribe under Louisiana law, and even if it

was a bribe, it did not cause Nagin to shutter the Chef

Menteur landfill.

A. Standard of Review

We consider the district court’s grant of Defendants’ motion for summary judgment dismissing Plaintiff’s RICO claims against Defendants. We review this

de novo, 7 and we apply the same criteria employed by

the district court. 8 “Summary judgment is proper only

when it appears that there is no genuine issue of material fact and that the moving party is entitled to

6 Our discussion below fleshes out in more detail how Mouton’s involvement is important to the determination of Defendants’ liability under RICO.

7 See Whitley v. BP. P.L.C., 838 F.3d 523, 526 (5th Cir. 2016);

Burnett Ranches, Ltd. v. United States, 753 F.3d 143, 146 (5th

Cir. 2014).

8 See Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337,

343 (5th Cir. 2007).

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judgment as a matter of law.” 9 “On summary judgment the inferences to be drawn from the underlying

facts contained in the affidavits, depositions, and exhibits of record must be viewed in the light most favorable to the party opposing the motion.” 10 “Credibility determinations have no place in summary judgment proceedings” because “non-movants’ summary

judgment evidence must be taken as true.” 11 Moreover, “[w]hen state of mind is an essential element of

the nonmoving party’s claim, it is less fashionable to

grant summary judgment because a party’s state of

mind is inherently a question of fact which turns on

credibility.” 12

B. Analysis

We turn first to Plaintiff’s argument that the

$20,000 contribution by Defendants to Nagin was a

bribe and a “predicate act” under RICO. An act of

“racketeering activity,” commonly referred as a “predicate act,” 13 includes “any act or threat involving . . .

9 Reingold v. Swiftships, Inc., 126 F.3d 645, 646 (5th Cir.

1997) (citing FED. R. CIV. P. 56).

10 Id. (citation omitted).

11 Koerner v. CMR Constr. & Roofing, L.L.C., 910 F.3d 221,

227 (5th Cir. 2018) (quoting Richardson v. Oldham, 12 F.3d

1373, 1379 (5th Cir. 1994)).

12 Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1265

(5th Cir. 1991).

13 See Dev. Corp. v. Benison, No. 7:15-CV-02160-LSC, 2018

WL 5537766, at *5 (N.D. Ala. Oct. 29, 2018) (citation omitted);

Sebago, Inc. v. Beazer E., Inc., 18 F. Supp. 2d 70, 79 (D. Mass.

1998) (citation omitted).

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bribery . . . which is chargeable under State law and

punishable by imprisonment for more than a year.” 14

We look to Louisiana law for the definition of a

bribe. Louisiana’s public bribery statute, Revised

Statute § 14:118, defines public bribery as “the giving

or offering to give, directly or indirectly, anything of

apparent present or prospective value to any [public

official], with the intent to influence his conduct in relation to his position, employment, or duty.” 15 Louisiana courts interpreting this statute have found that

the defendant must have “specific intent” to commit

the crime of bribery. 16 “The inquiry under the Louisiana statute, then, is whether the gift is made . . . with

the intent to influence the conduct of the public servant in relation to his position, employment, or duty.” 17

14 18 U.S.C. § 1961(1).

15 LA. R.S. § 14:118 (A)(1).

16 See State v. Hingle, 677 So. 2d 603, 607 (La. Ct. App. 2d

Cir. 1996) (“Specific intent is a state of mind and need not be

proved as a fact, but may be inferred from the circumstances of

the transaction and the actions of the defendant. Specific intent

exists when the circumstances indicate that the offender actively

desired the prescribed criminal consequences to follow his act.”)

(citations omitted); State v. Kyzar, 509 So. 2d 147, 151 (La. Ct.

App. 1st Cir. 1987) (“All that the [public bribery] statute requires

is the ‘intent to influence,’” and “[t]he action induced need not be

corrupt or illegal.”) (citing State v. Ponthier, 391 So. 2d 1138,

1139 (La. 1980)).

17 United States v. L’Hoste, 609 F.2d 796, 807 (5th Cir. 1980)

(applying Louisiana law); see also State v. Smith, 212 So. 2d 410,

412 (La. 1968).

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Specific intent to bribe may be determined from all

the facts and circumstances surrounding the case. 18

RICO creates a private civil action to be brought

by “[a]ny person injured in his business or property by

reason of a violation of section 1962 of this chapter . .

. .” 19 Section 1962, which contains RICO’s criminal

provision, makes it “unlawful for any person employed by or associated with any enterprise engaged

in, or the activities of which affect, interstate . . . commerce, to conduct or participate, directly or indirectly,

in the conduct of such enterprise’s affairs through a

pattern of racketeering activity.” 20 Conspiracy to violate section 1962 is also unlawful. 21 And relevant

here, bribery is a predicate offense and enumerated

as a “racketeering activity” under 18 U.S.C. § 1961(1).

“The Supreme Court requires plaintiffs to establish both but for cause and proximate cause in order

to show injury ‘by reason of’ a RICO violation.” 22

“Proximate cause should be evaluated in light of its

common-law foundations [and] . . . requires ‘some direct relation between the injury asserted and theinjurious conduct alleged.’” 23 “When a court evaluates a

18 See L’Hoste, 609 F.2d at 808.

19 18 U.S.C. § 1964(c).

20 Id. § 1962(c).

21 Id. § 1962(d).

22 Torres v. S.G.E. Mgmt., L.L.C., 838 F.3d 629, 636 (5th Cir.

2016) (en banc) (citing Bridge v. Phoenix Bond & Indem. Co., 553

U.S. 639, 654 (2008)).

23 Id. (citing Hemi Grp., LLC v. City of New York, 559 U.S. 1,

9 (2010)).

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RICO claim for proximate cause, the central question

it must ask is whether the alleged violation led directly to the plaintiff's injuries.” 24 Therefore, to satisfy the causation element of RICO in this case, Plaintiff has the burden of establishing that the payment

to Nagin was the but for cause and proximate cause

of his decision to shutter the landfill. 25 This burden

requires Plaintiff to establish that its damages

“w[ere] a foreseeable and natural consequence” of Defendants’ action. 26

Under this causation standard, the resolution of

this appeal requires us to examine, in detail, the summary judgment evidence to determine whether that

evidence, along with the inferences that a jury could

draw from that evidence, would create a fact question

on these issues. A plaintiff need not rely on direct evidence; causation can be proven with circumstantial

evidence. 27

24 Id. (citing Anza v. Ideal Steel Supply Corp., 547 U.S. 451,

461 (2006)).

25 See Holmes v. Sec. Inv’r Prot. Corp., 503 U.S. 258, 268

(1992).

26 Bridge, 553 U.S. at 657.

27 See United States v. Jones, 873 F.3d 482, 490 (5th Cir.

2017) (permitting jury to find RICO enterprise by circumstantial

evidence); United States v. Griffin, 324 F.3d 330, 357–58 (5th

Cir. 2003).

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1. The Evidence Relied Upon by Defendants in

Support of Summary Judgment.

River Birch argues first that no evidence supports

Waste Management’s theory that the $20,000 campaign contribution it made through related shell corporations was intended as a bribe—that is, to intentionally influence Mayor Nagin to shut down the Chef

Menteur landfill. River Birch points to the lack of evidence of a quid pro quo agreement between Defendants and Mayor Nagin or indeed that Defendants

asked Nagin to do anything for them.

Moreover, Defendants emphasize that it is neither

illegal nor unusual for them to make a campaign contribution because they rely on the goodwill of political

entities in large part for their business. They also assert that they must make campaign contributions to

level the playing field and to give them access to political decision-makers. Defendants also point out

that no evidence was produced of any conversation or

other communication between them and Nagin

around the time of the alleged bribe.

2. The Evidence Relied Upon by Plaintiff in Opposition to Summary Judgment.

Waste Management argues that a jury could reasonably conclude from circumstantial evidence that

the $20,000 contribution by River Birch’s shell corporations to Nagin was a bribe. Plaintiff bases its argument on the circumstances surrounding Defendants’

alleged bribery of Mouton and other circumstances

around the payment to Nagin. Moreover, Plaintiff

points out that the district court failed to address evidence on Mouton in its summary judgment opinion.

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a. Henry Mouton

Mouton was a former commissioner for the Louisiana Department of Wildlife and Fisheries. Waste

Management argues that Mouton played a large role

in Defendants’ underlying scheme to shutter the Chef

Menteur landfill. In 2011, Mouton pled guilty to violating 18 U.S.C. § 371, admitting that he received

bribes for using his official position to assist Defendants by influencing public officials to help Defendants

shutter landfill competitors. Relevant here, Mouton’s

factual basis supporting his guilty plea provides:

Shortly after Hurricane Katrina made landfall in August of 2005, Co-conspirator “A”

and other Co-conspirators recognized the

potential to obtain millions of dollars in revenue for the collection and disposal of storm

debris from storm ravaged areas. . . . Co-conspirator “A” conspired with Mouton to shutter the competition. The plan was to eliminate the competition and increase the revenue of Co-conspirator “A” by increasing the

amount of storm debris deposited in the

landfills owned by Co-conspirator “A.”

Mouton confirmed at his deposition in this case

that Co-conspirator “A” was Defendant Heebe and

that the Chef Menteur landfill was one of the landfills

that was targeted as part of the scheme he had with

Heebe. Moreover, as part of the campaign of Defendants to shutter the Chef Menteur landfill, Mouton testified that Heebe and Ward, or their attorneys, wrote

or assisted in drafting a letter for Mouton to send to

the Louisiana Department of Environmental Quality,

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as well as federal agencies, urging the closure of the

Chef Menteur landfill for alleged environmental reasons. 28 Mouton, presumably for the benefit of Defendants, also sent copies of the letter to the City of New

Orleans.

Under Rule 56, we construe Waste Management’s

summary judgment evidence as true; 29 this includes

statements made in Mouton’s factual basis and deposition. Defendants and Mouton knew that Nagin was

the critical decision-maker who had authority to either extend or decline to extend the temporary order

allowing the Chef Menteur landfill to continue operations. A jury could therefore conclude that Mouton’s

communication of allegedly false environmental concerns about the landfill to state and federal agencies

was designed to have these government agencies influence Nagin to shut down the landfill. Because Mouton’s action in this respect could be seen as part of the

overall plan to shutter the Chef Menteur landfill, evidence of Defendants’ conduct in bribing Mouton to

participate is intrinsic to this case.

28 On April 6, 2006, Mouton sent this letter and notice of in-

tention to file a citizen’s suit regarding the Chef Menteur landfill, alleging violations of the Clean Water Act, 33 U.S.C. § 1251

et seq. This letter was addressed to the Administrator of the Environmental Protection Agency and forwarded to, among others,

the Regional Administrator of the EPA, the U.S. Attorney General, the Louisiana Attorney General, Secretary of LDEQ, U.S.

Attorney for the Eastern District of Louisiana, and Criminal Division of the Internal Revenue Service.

29 Koerner, 910 F.3d at 227.

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In United States v. Rice, we explained that evidence that is intrinsic to the case is not limited by

Federal Rule of Evidence 404(b), 30 such that “other

act” evidence may be used to show that the actor acted

similarly in the case before the court. 31 We stated that

“‘other act’ evidence is ‘intrinsic’ when the evidence of

the other act and the evidence of the crime charged

are ‘inextricably intertwined’ or both acts are part of

a ‘single criminal episode’ or the other acts were ‘necessary preliminaries’ to the crime charged.” 32 Moreover, “[i]ntrinsic evidence is admissible to ‘complete the

story of the crime by proving the immediate context

of events in time and place,’ and to ‘evaluate all of the

circumstances under which the defendant acted.’” 33

We explained that “[i]ntrinsic evidence does not implicate [R]ule 404(b), and ‘consideration of its admissibility pursuant to [that rule] is unnecessary.’” 34

30 Federal Rule of Evidence 404(b)(1) provides: “Evidence of

a crime, wrong, or other act is not admissible to prove a person’s

character in order to show that on a particular occasion the person acted in accordance with the character.”

31 607 F.3d 133, 141 (5th Cir. 2010).

32 Id. (quoting United States v. Williams, 900 F.2d 823, 825

(5th Cir. 1990)).

33 Id. (citations omitted).

34 Id. (quoting United States v. Garcia, 27 F.3d 1009, 1014

(5th Cir. 1994)) (bracket original); see also United States v. Freeman, 434 F.3d 369, 374 (5th Cir. 2005) (holding “[i]ntrinsic evidence is generally admissible” and its “admission is not subject

to [R]ule 404(b).”).

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Although Rice is a criminal case, the same rationale applies in the civil context. 35 This is particularly true here, where the elements in the criminalRICO context overlap with the elements of a civilRICO case. 36 So, in this case, based on Mouton’s testimony that there was a scheme to shutter the Chef

Menteur landfill, the evidence suggesting Defendants’ intent to bribe Mouton can be considered by the

jury in determining Defendants’ motive and intent in

connection with their contribution to Nagin’s campaign. 37

Waste Management also points to the additional

fact that these contributions in the amount of $5,000

each were made not in Defendants’ names, but rather

by four shell corporations owned by Defendants. The

parties do not dispute that River Birch, Heebe and

Ward funded these contributions. And these contributions, in fact, violated Louisiana law, which prohibits

a party from making political contributions in the

35 See, e.g., Elliot v. Turner Const. Co., 381 F.3d 995, 1004

(10th Cir. 2004) (holding evidence intrinsic to plaintiff’s negligence claim admissible because it was “part of the same tortious

event” and essential to illustrate events leading up to plaintiff’s

injuries).

36 See St. Paul Mercury Ins. Co. v. Williamson, 224 F.3d 425,

446 n.15 (5th Cir. 2000). Civil-RICO liability arises under RICO.

18 U.S.C. § 1964(c); see also Anza, 547 U.S. at 453 (“One of

RICO’s enforcement mechanisms is a private right of action. . .

.”).

37 To be clear, we do not intend to preempt the district court’s

right to rule on any evidentiary objection that this evidence is

not intrinsic. The district court must rule on the objection, if

raised, based on the evidence at trial.

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names of others. 38 Plaintiff argues that Defendants’

attempt to conceal the true source of the contributions

raises an inference that their contributions were intended to cover up evidence of wrongdoing. Moreover,

one of the shell corporations that made a $5,000 campaign donation to Nagin—Westside Construction Services—was the same entity Heebe used to pay Mouton.

Mouton also assisted Defendants in other ways to

achieve the scheme’s objective. On April 6, 2006, at

Defendants’ request, Mouton threatened the City

with a lawsuit seeking an injunction to close the Chef

Menteur landfill for environmental reasons. Mouton

did not follow through with this threat, but Defendants recruited certain plaintiffs who resided in the

area of the landfill and, again using the shell corporation Westside Construction Services, financed a lawsuit against the City seeking closure of the landfill.

All along, Defendants remained in the background

and concealed their role in the litigation.

Moreover, Waste Management points out that

Mayor Nagin was convicted of public bribery in a totally different scheme in 2013, 39 which would serve as

strong impeachment material to undermine all of

Nagin’s testimony, including his denial that he was

paid by Defendants to close the landfill.

38 See LA. R.S. § 18:1505.2(a)(1).

39 See supra note 1 for description of Nagin’s criminal convic-

tion.

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Plaintiff also points to the timing of Defendants’

$20,000 payment to Nagin, on the eve of the expiration of the emergency order, as support for Plaintiff’s

position that the payment was to influence Nagin to

close the landfill. Plaintiff considers it relevant that

when Heebe and Ward became concerned that Nagin

may not have been fully aware of their $20,000 contribution, Ward sent a letter, delivered to Nagin’s

campaign by Ward’s chauffeur, just three days before

the expiration of the emergency order reminding

Nagin of the campaign payment and Defendants’ earlier support of him.

It is rare in public bribery cases that there is definitive “smoking gun” evidence to show a payment

was made to an official to influence the official to perform some act—and there is no such evidence here. 40

It is critical in cases such as this that inferences from

circumstantial evidence about intent and motives

about which reasonable minds could differ be sorted

out by the jury. 41

40 See United States v. Elliot, 571 F.2d 880, 898 (5th Cir.

1978) (“Like a criminal conspiracy, a RICO enterprise cannot be

expected to maintain a high profile in the community. Its affairs

are likely to be conducted in secrecy and to involve a minimal

amount of necessary contact between participants.”).

41 See United States v. Garza, 574 F.2d 298, 304-05 (5th Cir.

1978) ([I]t is the jury’s duty to draw whatever permissible inferences it may from circumstantial evidence that usually forms the

basis for finding criminal intent, and to find a verdict founded on

whatever permissible inferences the jury chooses to draw.”) (citation omitted); Crowe v. Henry, 115 F.3d 294, 298 (5th Cir.

1997).

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b. Causation

Defendants argue next that even if the question of

whether their $20,000 payment was a bribe must go

to the jury, they are still entitled to summary judgment because there is no evidence that the payment

proximately caused Mayor Nagin to close the landfill.

Defendants’ principal argument—that the evidence

does not support any causal connection between Defendants’ $20,000 payment and Nagin’s ultimate decision to shut down the Chef Menteur landfill—rests

on the executive order itself and Nagin’s deposition

testimony. The executive order authorized the Chef

Menteur landfill to operate for six months from the

date it was signed on February 9, 2006. Nagin testified that when he signed the executive order, he never

intended to extend it or to allow the landfill to remain

open after that date.

But a jury could reasonably find otherwise. As indicated above, Mayor Nagin’s felony conviction for

public bribery in a different scheme provides abundant fodder for impeaching his testimony. It is also

obvious that Nagin had an interest in avoiding further criminal or civil jeopardy for participating in another bribery scheme. Moreover, a jury could infer

that Nagin’s acceptance of bribes, while holding public office, was a part of his “pattern of conduct” or “modus operandi.”

There was also other evidence tending to undermine Mayor Nagin’s testimony that he never intended

to authorize the landfill to operate past August 2006,

when the emergency order was set to expire. This is

reflected by the request signed by Nagin, which was

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submitted to LDEQ (five days after Nagin signed the

emergency order) seeking approval of the City’s plan

to open the Chef Menteur landfill “for the duration of

the Katrina cleanup.”

Also, Mayor Nagin, in an apparent effort to quash

environmental concerns of his constituents who lived

in the area of the landfill, announced on June 30,

2006, the favorable results of environmental testing.

Nagin then announced two weeks later, on July 13,

2006, his decision to shutter the landfill. This tends to

support Waste Management’s argument that Nagin

suddenly reversed his position about extending authorization to leave the landfill open. In other words,

a jury could question why Nagin made the positive

announcement on June 30, 2006, unless he planned

to allow the landfill to remain open.

In addition to Waste Management’s surprise about

the closing of the landfill in August, federal and state

officials also testified that they were taken aback at

the abrupt closure of the landfill. In particular, Dr.

Chuck Carr Brown, who oversaw the Katrina debris

cleanup at LDEQ, testified by deposition that he understood the City had planned to keep the Chef Menteur landfill open as long as LDEQ needed it for the

disaster cleanup. Dr. Brown was surprised and confused when he learned of the Mayor’s decision not to

extend the authorization of the Chef Menteur landfill,

particularly given the Mayor’s recent announcement

of the environmental testing of the landfill. Dr. Brown

immediately sought a clarification from the City as to

why it had changed its position, and he sought to explain the dire need for the landfill and the adverse

consequences from its closing. The apparent sudden

22a

reversal of Nagin’s position on whether to close the

landfill, which was contrary to the understanding

held by the environmental agencies, supports the inference that Mayor Nagin’s original intention was for

the Chef Menteur landfill to operate for the duration

of the Katrina cleanup.

Even though Defendants argue that the City

Council had exclusive regulatory authority over zoning, Nagin could have renewed his executive order

while his general emergency declaration was in effect, 42 which would have allowed the Chef Menteur

landfill to continue operations without a conditional

use permit.

In summary, Mayor Nagin in February 2006

signed the executive order, the agreement with Waste

Management, and the LDEQ form seeking approval

to open and maintain the Chef Menteur landfill until

the Katrina cleanup was complete. Nagin was reelected on May 20, 2006, with the Chef Menteur landfill operating and no indication that he would no

longer support it. After extensive environmental testing with LDEQ confirmed that there were no environmental hazards at the Chef Menteur landfill, on June

30, 2006, Nagin publicly announced those results,

stating the test results “should ease the concerns of

the citizens.” Then, on July 10, 2006, Ward wrote to

remind Nagin’s associates of Defendants’ large financial contributions ($20,000 in 2006 and $40,000 in

2005) that Defendants had made “on a direct basis

with Mayor Nagin.” Only three days later, by affidavit

42 See LA. R.S. § 29:721 et seq.

23a

filed in a litigation secretly financed by Defendant

River Birch, Nagin announced that he would not renew the executive order. This chain of events, if accepted by the jury, supports the inference that Defendants’ bribery of Mayor Nagin influenced his actions in refusing to extend the executive order. A reasonable jury could also infer causation from Mayor

Nagin’s disregard of the evidence that the Chef Menteur landfill was safe and badly needed in the City’s

disaster cleanup. Accordingly, we hold that Plaintiff

has provided sufficient evidence to survive a summary judgment challenge in this case.

*

*

*

The dissent is correct that this case is a close call.

Evidence here—along with the reasonable inferences

drawn from this evidence—could reasonably show either political pressure or pay-to-play bribes that motivated Nagin to shutter the Chef Menteur landfill.

But the dissent is wrong to suggest that Matsushita

Elec. Indus. Co. v. Zenith Radio Corp. 43 alters the

summary judgment standard in this RICO case to

preclude the jury from evaluating this evidence and

deciding what inferences to draw from the evidence it

accepts.

We begin with a recap. Matsushita was an antitrust case that challenged Japanese television manufacturers’ lowering of prices as anti-competitive. 44

The Supreme Court held that “a plaintiff seeking

damages for a violation of § 1 [of the Sherman Act]

43 475 U.S. 574 (1986).

44 Id. at 577-78.

24a

must present evidence ‘that tends to exclude the possibility’ that the alleged conspirators acted independently.” 45 The Court found that the plaintiffs’ substantive claim of conspiracy to engage in predatory

pricing made no economic sense because such a

scheme was risky and self-deterring as it was too

costly to the conspirators. 46 The Court held that the

general summary judgment rule applied: “[I]nferences to be drawn from the underlying facts . . . must

be viewed in the light most favorable to the party opposing the [summary judgment] motion.” 47 And the

Court recognized that “antitrust law limits the range

of permissible inferences from ambiguous evidence in

a § 1 case.” 48 So considered altogether, in this antitrust context, the Court concluded that if a plaintiff

relies on circumstantial evidence of an agreement rather than express acts, and if the claim against a defendant appears implausible, a plaintiff has an additional evidentiary burden to survive a summary judgment attack:

[T]he absence of any plausible motive to engage in the conduct charged is highly relevant to whether a ‘genuine issue for trial’ exists within the meaning of Rule 56(e). Lack

of motive bears on the range of permissible

conclusions that might be drawn from am-

45 Id. at 588.

46 Id. at 594-95.

47 Id. at 587-88 (citation omitted).

48 Id. at 588.

25a

biguous evidence: if petitioners had no rational economic motive to conspire, and if

their conduct is consistent with other,

equally plausible explanations, the conduct

does not give rise to an inference of conspiracy. 49

Put differently, if it appears that a defendant lacks

a plausible motive for engaging in anticompetitive

conduct, in order to survive summary judgment, an

antitrust plaintiff must present evidence that

“show[s] that the inference of conspiracy is reasonable

in light of the competing inferences of independent action or collusive action that could not have harmed

[plaintiffs].” 50 Matsushita confines courts from drawing inferences in antitrust cases that are at odds with

economic theory (specifically, predatory pricing). 51

49 Id. at 596-97.

50 Id. at 588.

51 Matsushita built upon Monsanto Co. v. Spray-Rite Service

Corp., 465 U.S. 752 (1984) by holding that “antitrust law limits

the range of permissible inferences from ambiguous evidence.”

Matsushita, 475 U.S. at 588. “The Court’s rationale for awarding

summary judgment to the defendants in Matsushita, then,

turned to a large extent on its rejection of a substantive theory

of antitrust law–implausible theories of predatory pricing were

now disfavored as a matter of substantive law.” EDWARD J.

BRUNET ET AL., SUMMARY JUDGMENT: FEDERAL LAW AND PRACTICE § 9.5, at p. 423 (2019).

26a

The Matsushita Court’s antitrust lesson on summary judgment is not applicable here. 52 The dissent

52 The summary judgment standard, as applied in Matsushita, was predicated on substantive antitrust law. As Professor

Brunet states:

Standing on its own, however, apart from the

[1986 summary-judgment] trilogy, Matsushita

functions best as a model for antitrust summary

judgment. The Court’s discussion on the summary

judgment process repeatedly refers to substantive

antitrust doctrine. For example, the Court’s statement that “antitrust law limits the range of permissible inferences from ambiguous evidence in a § 1

[Sherman Act] case” was a response to the plaintiffs’ contention that all inferences “must be viewed

in the light most favorable to the party opposing

the [summary judgment] motion.” Moreover, the

Supreme Court framed the burden placed on the

nonmovant in a specific antitrust factual context.

Id. at 425 (citations omitted).

Other scholars share a similar characterization of the

Matsushita opinion. See, e.g., JAMES WM. MOORE ET AL., 11

MOORE’S FEDERAL PRACTICE § 56.22[2][c] (3d ed. 2018). Specifically, they recognize:

The [Supreme] Court found the plaintiff’s theory of a long-running predatory pricing scheme implausible because it would require defendants to

incur substantial losses jointly for years without an

intervening opportunity to recoup monopoly profits.

The Supreme Court then incorporated the substantive evidentiary standard applicable in antitrust cases into its analysis, noting that “antitrust

law limits the range of permissible inferences from

ambiguous evidence in a § 1 [of the Sherman Act]

case.” Under substantive antitrust law, conduct

27a

falls into error by extending it to our civil-RICO case.

Using circumstantial evidence to conclude that a

bribe occurred is not at odds with economic theory.

Both Nagin and River Birch allegedly sought monetary gains; Waste Management’s argument does not

defy settled economic principles. 53

The dissent, without citation, insists that “[i]n

RICO conspiracies, like antitrust ones, the plaintiff

has an affirmative obligation to negate other innocent

explanations for the defendants’ conduct.” The dissent goes further: “To carry [plaintiff’s] burden, Waste

Management must produce evidence that ‘tends to exclude the possibility’ Mayor Nagin was motivated by

politics rather than bribes.” We have not imposed

that is as consistent with permissible competition

as with illegal conspiracy does not, standing alone,

support an inference of antitrust conspiracy.

Therefore, to survive a motion for summary judgment, the plaintiffs had to present evidence that

tended to exclude the possibility that the alleged

conspirators acted independently.

Id. (citations omitted); see Arthur R. Miller, The Pretrial Rush to

Judgment: Are the “Litigation Explosion,” “Liability Crisis,” and

Efficiency Clichés Eroding Our Day in Court and Jury Trial

Commitments?, 78 N.Y.U. L. REV. 982, 1044–68 (2003) (concluding that Matsushita “seems specific to the antitrust context”).

53 It is telling that River Birch has never thought the instant

case has anything to do with Matsushita and that case’s point

about economic rationality. Defendants never raised it. Nagin’s

and Mouton’s history of receiving bribes shows there is nothing

economically irrational about that conduct.

28a

such a heightened burden on a RICO plaintiff. 54 Rather, we have maintained, and our precedent holds,

that a RICO plaintiff:

does not need to disprove [a defendant’s]

explanation of the situation in order to

survive summary judgment. [A RICO

plaintiff] need only present evidence that

would permit a reasonable finder of fact to

accept his interpretation of the facts. . . .

The decision as to whether to believe

[plaintiff’s or defendant’s] explanation of

the facts requires the type of credibility determination by the court that is plainly inappropriate on motion for summary judgment. 55

We have been reminded by the Supreme Court

since Matsushita that, on summary judgment, “[t]he

54 The dissent cites a number of cases, see post, at 31 (opinion

of OLDHAM, J.), that “apply Matsushita in non-antitrust cases.”

That’s not surprising, considering that Matsushita is one of the

most-cited Supreme Court cases. But in non-antitrust context,

courts apply Matsushita for its statement of the general Rule 56

standard: “When the moving party has carried its burden under

Rule 56(c), its opponent must do more than simply show that

there is some metaphysical doubt as to the material facts. . . .

Where the record taken as a whole could not lead a rational trier

of fact to find for the nonmoving party, there is no ‘genuine issue

for trial.’” Matsushita, 475 U.S. at 586–87 (citations omitted).

The cases cited by the dissent show precisely that.

55 See Crowe v. Henry, 115 F.3d 294, 298 (5th Cir. 1997); see

also, e.g., Whelan v. Winchester Prod. Co., 319 F.3d 225, 228 (5th

Cir. 2003) (applying general Rule 56 summary judgment standard in RICO case).

29a

evidence of the nonmovant is to be believed, and all

justifiable inferences are to be drawn in his [or her]

favor.” 56 In Tolan v. Cotton, though recognizing that

it “is not equipped to correct every perceived error

coming from the lower federal courts,” the Supreme

Court “intervene[d]” to summarily reverse our Rule

56 dismissal, calling it “a clear misapprehension of

summary judgment standards. . . .” 57 We need not repeat this rebuke.

This close case—where the evidence could support

a verdict for either side, depending upon the evidence

the jury credits and the reasonable inferences drawn

from that evidence—is tailor-made for a trial, not

summary judgment. A question that “turns on state

of mind,” that is, Nagin’s reasoning for shuttering the

Chef Menteur landfill and River Birch’s decision to

discreetly transfer and donate funds to Nagin through

shell corporations, is “often inappropriate for resolution at the summary judgment stage.” 58 We hold that

the correct disposition of this civil-RICO appeal is to

remand it for trial so that a jury can sort out the facts

56 Tolan v. Cotton, 572 U.S. 650, 656 (2014) (per curiam)

(summarily reversing our entry of summary judgment emphasizing “a ‘judge’s function’ at summary judgment is not ‘to weigh

the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.’”) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)); see also, e.g.,

Thomas v. Nugent, 572 U.S. 1111 (2014) (remanding case in light

of Tolan).

57 Tolan, 572 U.S. at 659.

58 See Krim v. BancTexas Group, Inc., 989 F.2d 1435, 1449

(5th Cir. 1993); Int’l Shortstop, 939 F.2d at 1265.

30a

and decide what appropriate inferences should be

drawn from those facts. 59

V. CONCLUSION

For the above reasons, we are satisfied that the

record reflects genuine issues of material fact as to

both whether the Defendants’ campaign contribution

to Nagin was a bribe and whether the payment was

the but for and proximate cause of Nagin’s decision to

close the Chef Menteur landfill. We therefore VACATE the district court’s judgment and REMAND for

further proceedings consistent with this opinion. We

also VACATE the district court’s March 27, 2015 order of dismissal insofar as that order bars consideration of evidence related to Mouton.

VACATED AND REMANDED.

ANDREW S. OLDHAM, Circuit Judge, dissenting:

“[Bad] facts make bad law.” Wyeth v. Levine, 555

U.S. 555, 604 (2009) (Alito, J., dissenting). Ray Nagin

59 To the extent the dissent is concerned about chilling First

Amendment rights, our decision today does no such thing. We

recognize that Supreme Court precedent safeguards political

speech. See Citizens United v. FEC, 558 U.S. 310, 339–40 (2010).

But such protection, afforded by the First Amendment, does not

extend to certain illegal activities. See, e.g., McCutcheon v. FEC,

572 U.S. 185, 192 (2014) (noting First Amendment does not protect quid pro quo corruption). Under Louisiana law, political donations, like the ones by Defendants, cannot be made in disguise

and veiled by shell corporations to bypass campaign-contribution

limits. The First Amendment is therefore not implicated here.

Indeed, the dissent’s point about the First Amendment is again

one River Birch did not think worth making. And rightly so.

31a

accepted bribes. So did Henry Mouton. But the question is not whether Nagin and Mouton are crooks. The

question is whether Waste Management can use civil

RICO against a competitor with zero evidence of causation. With greatest respect for my colleagues and

their views on this difficult case, I’d say no.

I.

Long ago, we worried that summary judgment

could be a “catch penny contrivance to take unwary

litigants into its toils and deprive them of a trial.”

Whitaker v. Coleman, 115 F.2d 305, 307 (5th Cir.

1940). That view was common at the time. In the

years following the adoption of Rule 56 in 1938, “the

courts [were], if anything, overhesitant in granting

the relief.” Charles E. Clark, Summary Judgments—

a Proposed Rule of Court, 2 F.R.D. 364, 366 (1943); see

also Charles E. Clark & Charles U. Samenow, The

Summary Judgment, 38 YALE L.J. 423 (1929) (explaining the need for a summary judgment rule). The

hesitancy was rooted in an institutional concern that

summary judgment would transgress the sanctity of

the jury room. See, e.g., Avrick v. Rockmont Envelope

Co., 155 F.2d 568, 571 (10th Cir. 1946) (“The power to

pierce the flimsy and transparent factual veil should

be temperately and cautiously used lest abuse reap

nullification.”).

Then came 1986. In a trilogy of summary-judgment opinions, the Supreme Court told us we had it

all wrong. See Celotex Corp. v. Catrett, 477 U.S. 317

(1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242

(1986); Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574 (1986). Each was a landmark in

32a

its own right. And each held the lower federal courts

were unduly penurious in meting out summary judgment.

Take Matsushita, for example. American television manufacturers sued Japanese competitors for

predatory pricing. The plaintiffs alleged their Japanese competitors had conspired to drive down prices

and put the Americans out of business. The Third Circuit found myriad material factual disputes that precluded summary judgment for the defendants. For example, it highlighted evidence the Japanese companies entered “formal agreements” to fix minimum

prices, undercut those agreements through “a variety

of rebate schemes,” and concealed the rebates from

both the American and Japanese governments.

Matsushita, 475 U.S. at 581. And it was undisputed

the Japanese companies entered other price-fixing

conspiracies. See id. at 595–96 (conceding “direct evidence” of such). Obviously, in the abstract, one could

believe the Japanese conspirators had conspired once

again.

Still, the Supreme Court reversed the denial of

summary judgment. Two of its reasons apply directly

here. First, the Court held the American plaintiffs

“must show that the inference of conspiracy is reasonable in light of the competing inferences of independent action.” Id. at 588. Put differently, the plaintiffs

must present evidence that “tends to exclude the possibility” their competitors acted innocently. Ibid.

(quotation omitted). Second, and crucially, the Court

held evidence of other conspiracies is insufficient to

bridge that gap. Sure, the Court conceded, it’s possi-

33a

ble the Japanese companies were up to their old conspiratorial tricks. But “their conduct [was also] consistent with other, equally plausible explanations”—

including a non-conspiratorial desire to gain market

share by driving down prices. Id. at 596–97. That the

Japanese companies conspired in the past would not

allow a jury to reasonably infer they conspired again.

We’ve generally heeded the Supreme Court’s admonishment. We’ve recognized that the Celotex-Anderson-Matsushita “trilogy . . . made it clear that our

earlier approach to Rule 56 was wrong-headed because it was simply inconsistent with the plain language of the rule.” Little v. Liquid Air Corp., 37 F.3d

1069, 1075 (5th Cir. 1994) (en banc) (per curiam) (citations omitted); see also Douglass v. United Servs.

Auto. Ass’n, 79 F.3d 1415, 1423 (5th Cir. 1996) (en

banc) (noting “the growing judicial recognition of the

many benefits of summary judgment”), superseded by

statute on other grounds, 28 U.S.C. § 636(b)(1); Calpetco 1981 v. Marshall Expl., Inc., 989 F.2d 1408,

1415 (5th Cir. 1993) (similar). And we’ve held “[t]estimony based on conjecture or speculation is insufficient to raise an issue of fact to defeat a summary

judgment motion.” Ruiz v. Whirlpool, Inc., 12 F.3d

510, 513 (5th Cir. 1994) (following Anderson). Put differently, “summary judgment is appropriate in any

case where critical evidence is so weak or tenuous on

an essential fact that it could not support a judgment

in favor of the nonmovant.” Little, 37 F.3d at 1075

(quotation omitted); accord Anderson News, L.L.C. v.

Am. Media, Inc., 899 F.3d 87, 98 (2d Cir. 2018) (“The

question is not whether the plaintiff’s inferences are

so far-fetched that a trier of fact should not be allowed

34a

to consider them, but whether the evidence, though

not far-fetched, sufficed to meet the plaintiff’s burden

of proof.” (alterations and citation omitted)).

II.

This case certainly smells fishy. River Birch made

campaign donations to Mayor Nagin, who refused to

reauthorize the landfill of River Birch’s competitor,

Waste Management. But if Matsushita teaches us anything, it’s that foul-smelling facts don’t preclude

summary judgment. We should be especially careful

to heed that lesson in civil RICO cases like this one.

Before asking a jury to separate official acts motivated by bribery from those motivated by the public

interest, we should be quite sure there is some evidence that could satisfy the plaintiff’s burden of proof.

A.

The dispute at the heart of this case is why Mayor

Nagin refused to reauthorize a landfill. There’s an innocent explanation: The landfill was politically unpopular, and Nagin did not want to continue taking

political heat for authorizing it. Then there’s a sinister explanation: River Birch bribed him.

A straightforward application of Matsushita precludes asking a jury to choose between them. As in

Matsushita, it’s the plaintiff’s burden to connect its

injuries to its competitors’ alleged conspiracy. To

carry that burden, Waste Management must produce

evidence that “tends to exclude the possibility” Mayor

Nagin was motivated by politics rather than bribes.

475 U.S. at 588 (quotation omitted). Evidence that is

“as consistent with” politics as it is with bribes does

35a

not suffice because it does nothing to help the jury

choose between “competing inferences.” Ibid.

The evidence of Nagin’s political motivations is undisputed and overwhelming. Waste Management attempts to overcome that evidence in various ways.

They make all involved look, well, trashy. But they

fail to create a jury question.

1.

Let’s start with the undisputed evidence of Nagin’s

independent motivation to close the landfill. This

landfill was wildly unpopular. Everyone hated it.

Waste Management’s predecessor in interest attempted to open it in the mid-1990s. The New Orleans

City Council rejected the effort. Waste Management

purchased an option to try again in 2001 and 2002. It

too failed.

Then came Hurricane Katrina. That catastrophe

made the politically impossible possible—at least

temporarily. On February 9, 2006, Mayor Nagin issued an emergency executive order. It allowed Waste

Management to open the landfill immediately and secure Council approval for it later. Even in the immediate aftermath of Katrina—when the need for new

landfills was patent—the political backlash was swift

and vicious.

Before the landfill could open on an emergency basis, the City Council issued a scathing rebuke of the

project. In a unanimous resolution, the Council noted

“a great majority” of the affected residents voiced “vehement opposition” to the landfill. New Orleans City

Council Resolution R-06-156, at 1 (Apr. 6, 2006). It

36a

noted the Mayor had bypassed all “public input” in

unilaterally issuing the emergency order. Ibid. It

noted the federal government had not determined the

levee system surrounding the landfill was “safe.” Id.

at 1. Moreover, the Mayor had not determined his chosen landfill was the best of the “environmentally

sound alternatives.” Id. at 2. The Council therefore

unanimously and “strongly urge[d]” the Mayor to revoke his order “immediately.” Id. at 2. And it again

emphasized its resolution was “based upon overwhelming community opposition” to the landfill. Id.

at 1.

The political opposition was so strong it was literally national news. See, e.g., Leslie Eaton, A New

Landfill in New Orleans Sets Off a Battle, N.Y. TIMES

(May 8, 2006). There’s not a scintilla of evidence this

political fury was fake. This was not some “AstroTurf”

campaign financed by the defendants. For example,

Councilwoman Cynthia Hedge-Morrell opposed the

landfill because it “would harm the environment and

lessen the possibility that people would return to New

Orleans East.” By all accounts, this was genuine

grassroots outrage about the prospect of an eightyfoot trash tower in a poor neighborhood populated

predominantly by people of color. There is no dispute

this outrage gave Nagin ample political motivation

not to renew the landfill’s emergency authorization.

Nor is there a scintilla of evidence that anyone

thought the Mayor’s emergency order was anything

other than temporary. The order suspended the zoning laws “for a period of six months unless earlier rescinded by [the Mayor] or other operation of law.” As

an expressly bargained-for condition of the order,

37a

Waste Management “stated its plan to file” the same

zoning application required of every other landfill operator in New Orleans. The Mayor also expressly bargained for Waste Management’s help in creating political support for the landfill through “the appropriate neighborhood meetings.” So as things stood on

February 9, 2006, Waste Management had up to six

months to get its ducks in a row—to open the landfill,

sell the plan to affected citizens, win support for it on

the City Council, and finish its paperwork. And Waste

Management had a maximum of six months to do all

that. By its terms, after all, the order could be rescinded at any time.

So how could Waste Management think—but for

any intervening bribery—it was in the clear? Well, it

didn’t. According to its emails, Waste Management

knew it had a maximum of six months to complete a

task list that had proved impossible for a decade. And

it also knew the effort would require heavy political

lifting. That’s why Waste Management had a “Gov Affairs Strategy Meeting” to discuss both “How do we

keep [the landfill] open beyond [the] 6 month order?”

and “How do we manage [the situation] politically?”

Waste Management apparently wanted to manage

this politically by convincing Mayor Nagin to extend

his emergency order—and continue shouldering political blame for the landfill. But there is no evidence

Mayor Nagin wanted to continue facing criticism for

unilaterally authorizing the landfill. When pressed at

its Rule 30(b)(6) deposition to identify anything to

suggest it ever convinced the Mayor to be the political

fall-guy (again), Waste Management could say only

that some unidentified person who may or may not

38a

work for some government entity may or may not

have “implied” it at some unspecified time in some unspecified way.

Of course, it’s possible that—but for the defendants’ campaign contributions—Nagin wanted to continue shouldering the political blame for an eightstory garbage pile in voters’ backyards. It’s possible

Nagin wanted to repeat the decision that earned him

a unanimous rebuke from the City Council, scathing

coverage in the New York Times, and vehement opposition back home. Anything is possible. But there’s no

evidence of it. Much less is there evidence the Mayor

changed his mind and opposed a politically unpopular

landfill because of River Birch’s four campaign contributions. 1

1 The entirety of defendants’ alleged bribes are four publicly

reported campaign contributions of $5,000, all made on May 16,

2006. To put these numbers in perspective, Nagin reported

$590,747.00 in contributions for the seven-week period between

May 1 and June 19, 2006. See Candidate’s Report, Report Number 10056, LA. ETHICS ADMIN. PROGRAM, 1–2 (filed June 27,

2006), http://ethics.la.gov/CampaignFinanceSearch/ShowEForm

.aspx?ReportID=10056. The defendants’ $20,000 constitutes a

mere 3% of that seven-week total. And across the 2006 primary

and general election, Nagin spent $2,491,147.95. See Brian Brox,

Elections and Voting in Post-Katrina New Orleans, SOUTHERN

STUDIES: AN INTERDISCIPLINARY JOURNAL OF THE SOUTH,

Fall/Winter 2009, at 8, 15. The defendants’ $20,000 is 0.8% of

that total. The record does not reveal a reason to think these relatively small sums of money loomed larger in Mayor Nagin’s calculus than the obvious political implications of reauthorizing the

landfill.

39a

2.

But wait, says Waste Management: These are not

ordinary campaign contributions because Nagin took

bribes in other instances. Therefore, they say, the jury

could find he did so here.

It’s true Nagin is in prison for accepting unrelated

bribes. It’s also legally irrelevant.

In Matsushita, the Third Circuit relied on “direct

evidence” the Japanese television makers had engaged in price-fixing conspiracies in Japan. In re Japanese Elec. Prods. Antitrust Litig., 723 F.2d 238, 305

(3d Cir. 1983), rev’d sub nom. Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). It held

evidence of these other conspiracies “may be circumstantial evidence of a broader conspiracy.” Ibid. And

it further held such circumstantial evidence precluded summary judgment because, after all, a reasonable jury could infer once a conspirator, always a

conspirator. It’s also easy to see how documented, direct proof of conspiracies back in Japan would powerfully impeach any denial of conspiracies in the United

States.

I likewise agree with my esteemed colleagues “a

jury could infer that Nagin’s acceptance of bribes,

while holding public office, was a part of his ‘pattern

of conduct’ or ‘modus operandi.’” Ante, slip op. at 15.

And I agree Nagin’s bribery conviction would serve as

powerful impeachment of his testimony. Ibid. But

that sort of evidence did not change the propriety of

summary judgment in Matsushita. Nor should it here.

40a

That’s because surviving summary judgment requires more than character evidence and impeachment material. In RICO conspiracies, like antitrust

ones, the plaintiff has an affirmative obligation to negate other innocent explanations for the defendants’

conduct. And the Supreme Court could not have been

clearer in holding other bad acts won’t do the trick:

The “direct evidence” on which the court

[of appeals] relied was evidence of other

combinations, not of a predatory pricing

conspiracy. . . . Evidence that tends to support any of these collateral conspiracies

thus says little, if anything, about the existence of a conspiracy to charge belowmarket prices in the American market

over a period of two decades.

Matsushita, 475 U.S. at 595–96.

This was no fleeting thought. It was a thoroughly

reasoned response to the principal basis for the dissent, which criticized the majority for “mak[ing] assumptions that invade the factfinder’s province.” Id.

at 601 (White, J., dissenting). Justice White explained:

[A]fter reviewing evidence of cartel activity in Japan, collusive establishment of

dumping prices in this country, and longterm, below-cost sales, the Third Circuit

held that a factfinder could reasonably

conclude that the [illegal horizontal agreement] was not a simple price-raising device. . . . I see nothing erroneous in this

reasoning.

41a

Id. at 605. Justice White’s understanding of the summary judgment standard would obviously necessitate

reversal here. But “[t]his is one of those instances in

which the dissent clearly tells us what the law is not.

It is not as if the proposition had not occurred to the

majority of the Court.” Kobach v. U.S. Election Assistance Comm’n, 772 F.3d 1183, 1188 (10th Cir. 2014). 2

The majority responds that Matsushita is irrelevant because this is not an antitrust case. See ante,

slip op. at 19–20. But Matsushita “did not introduce a

special burden . . . in antitrust cases”; it “merely articulated” a requirement applicable to all cases under

Rule 56. Eastman Kodak Co. v. Image Tech. Servs.,

Inc., 504 U.S. 451, 468 (1992). That’s why courts routinely apply Matsushita in non-antitrust cases. See

Ricci v. DeStefano, 557 U.S. 557, 586 (2009); Scott v.

Harris, 550 U.S. 372, 380 (2007); NLFC, Inc. v.

Devcom Mid-Am., Inc., 45 F.3d 231, 235 (7th Cir.

1995); Sylvia Dev. Corp. v. Calvert Cty., 48 F.3d 810,

818 (4th Cir. 1995); Leonard v. Dixie Well Serv. &

Supply, Inc., 828 F.2d 291, 294 (5th Cir. 1987). “[T]he

2 Given that prior-crimes evidence doesn’t help with Nagin,

it definitely doesn’t help with Mouton. Mouton regulated

shrimping. The only evidence tying him to the landfill is a letter

he sent to the EPA regarding a citizen suit. He never met Nagin,

never worked for him, never talked to him (about the landfill or

anything else), and never had any influence over him. Accordingly, Waste Management cannot show Mouton was connected

in any way to Nagin, much less that he caused Nagin to refuse

to reauthorize the landfill. Cf. Boyle v. United States, 556 U.S.

938, 947 n.4 (2009) (individuals who act “independently and

without coordination” are not part of RICO association). Mouton

is irrelevant.

42a

universal applicability of the Supreme Court’s analysis in Matsushita” is well established. In re Managed

Care Litig., 430 F. Supp. 2d 1336, 1345 (S.D. Fla.

2006). That’s because Matsushita requires summary

judgment anytime the evidence is “as consistent with”

lawful conduct as with unlawful conduct.

True, other parts of Matsushita’s reasoning are

not relevant here. For example, no one argues that

Nagin “lack[ed] a plausible motive for” accepting a

bribe or that the alleged bribery scheme “ma[kes] no

economic sense.” Ante, slip op. at 18–19 (characterizing Matsushita). But the “economic rationality” of the

alleged conduct, ante, slip op. at 20 n.53, does not justify a trial in this case, just as it wouldn’t have in

Matsushita. The Matsushita Court expressly denied

that “a plausible reason to conspire” combined with

“ambiguous conduct could suffice to create a triable

issue of conspiracy.” 475 U.S. at 597 n.21. Regardless

of economics, “conduct that is as consistent with permissible competition as with illegal conspiracy does

not, without more, support even an inference of conspiracy.” Ibid.

Other lower courts have attempted the majority’s

move, and it did not end well. In Bell Atlantic Corp. v.

Twombly, 550 U.S. 544 (2007), the Supreme Court issued another landmark procedural ruling in an antitrust case. Some argued Twombly’s reading of Federal

Rule of Civil Procedure 8 should be limited to “the

context of an antitrust dispute.” Ashcroft v. Iqbal, 556

U.S. 662, 684 (2009). But the Court emphatically rejected that argument. Twombly—like Matsushita—

“interpret[ed] and appli[ed]” the Federal Rules of

Civil Procedure, which govern “all civil actions and

43a

proceedings in the United States district courts.” Ibid.

(quotation omitted). So Matsushita—like Twombly—

applies to all cases, not just antitrust ones.

But even if that weren’t true, Matsushita would

remain applicable to civil RICO cases like this one.

“Antitrust cases are particularly instructive in the

civil RICO context because, as the Supreme Court has

observed, ‘the civil action provision of RICO was patterned after the Clayton Act.’” In re Managed Care

Litig., 430 F. Supp. 2d at 1345 (quoting Agency Holding Corp. v. Malley-Duff & Assocs., Inc., 483 U.S. 143,

150 (1987)). The majority simply cannot ignore

Matsushita as just “an antitrust case.”

3.

Waste Management also claims to have three

pieces of evidence tending to show the defendants’

campaign contributions caused the Mayor to change

his mind. They tend to show no such thing.

The first is an “Emergency Disaster Cleanup Site

Request” filed by the Mayor’s office on February 14,

2006. The Mayor’s office filed it five days after Nagin

signed his emergency order. Through it, Nagin asked

the Louisiana Department of Environmental Quality

(“LDEQ”) to provide emergency state approval for the

landfill. And in it, Nagin requested state approval for

“the duration of the Hurricane Katrina disaster

cleanup efforts, at this time estimated to be 12

months.” But that says nothing about whether Nagin

was willing to wage political war against his City

Council for 12 months. There’s nothing illegal about

wanting the State to approve a landfill for 12 months

and demanding political buy-in from the City Council

44a

in half that time. Moreover, the LDEQ request was

filed almost two months before the Council formally

excoriated Nagin for authorizing the landfill. To the

extent the LDEQ request shows Nagin changed his

mind, it is perfectly consistent with his doing so in response to a bruising political fight. As we know from

Matsushita, that consistency precludes this case from

reaching a jury.

The second piece of evidence is a city press release

from June 30, 2006. That release was headlined “Lab

Results Show No Air or Water Contaminations at

Chef Hwy Landfill.” And it attributes a quote to

Nagin, who hoped the sampling results would “ease

the concerns of the citizens.” But environmental concerns were only one of the reasons the landfill was a

political mess. The city’s leaders also worried the

landfill would displace a community of color. See, e.g.,

Affidavit of Councilwoman Cynthia Hedge-Morrell.

No amount of lab sampling would change that. And in

all events, the landfill was a political albatross around

the Mayor’s neck. There is nothing illegal about an

elected official using favorable test results to defend

against a political liability. Nor is there anything irrational about making the best of a bad political situation in June before cutting bait in August.

The third piece of evidence is a letter from the

LDEQ dated July 14, 2006. In it, LDEQ officials said

they “were surprised” to learn of Nagin’s decision not

to renew his emergency authorization for the landfill.

“It has been our understanding and impression,” they

wrote, “that you supported the use of the Chef Menteur site to dispose of” hurricane debris. The city attorney responded that the city is not “oppos[ed]” to the

45a

landfill. To the contrary, the city attorney expressly

stated the LDEQ would be “justified” in authorizing

the landfill at the state level. Nagin simply refused to

continue waging a lone-ranger political war against

his City Council at the local level. In short, if the State

was willing to take the blame, all the better—but

Nagin was not going to take it himself. Far from supporting an inference Nagin was motivated by bribes

from River Birch, this last piece of evidence suggests

he was motivated by politics.

B.

Make no mistake. Like my colleagues, I am convinced post-Katrina local politics were odiferous. And

sometimes criminal. Still, that does not mean Waste

Management’s civil RICO claim against River Birch

is the proper remedy.

“Civil RICO is an unusually potent weapon—the

litigation equivalent of a thermonuclear device.” Miranda v. Ponce Fed. Bank, 948 F.2d 41, 44 (1st Cir.

1991). The statute punishes defendants with treble

damages, attorney’s fees, and the “stigmatizing” label

“racketeer.” Ibid. That alone gives even “spurious

claims” tantalizing “in terrorem settlement value.”

Haroco, Inc. v. Am. Nat’l Bank & Tr. Co. of Chi., 747

F.2d 384, 399 n.16 (7th Cir. 1984), aff’d, 473 U.S. 606

(1985).

But that’s not the worst of it. “RICO has been interpreted so broadly that it has been used more often

against respected businesses with no ties to organized

crime, than against the mobsters who were the clearly

intended target of the statute.” Sedima, S.P.R.L. v.

46a

Imrex Co., 473 U.S. 479, 526 (1985) (Powell, J., dissenting); see also id. at 499 (majority op.) (“It is true

that private civil actions under the statute are being

brought almost solely against [respected businesses],

rather than against the archetypal, intimidating mobster.”). The predicate acts for civil RICO are so broad

that racketeering claims are de riguer in commercial

litigation. In the words of Abner Mikva—who voted

against RICO as a member of Congress before applying it as a judge on the D.C. Circuit—civil RICO is “a

weapon against legitimate businessmen in ordinary

commercial disputes. The civil RICO count today has

become boilerplate in commercial lawsuits.” Abner

Mikva & G. Robert Blakey, RICO and its Progeny:

Good or Bad Law?, 2 NOTRE DAME J.L. ETHICS & PUB.

POL’Y 369, 372 (1986). 3

3 At a debate hosted by Notre Dame, Mikva explained:

In preparing for my appearance here today, I went through

some of the cases in which a civil RICO claim has been filed. And

the range of cases boggle[s] the mind. These are not cases

against Mafia figures. These have nothing to do with some poor

merchant who has been squeezed by the mafiosi in a loan transaction. RICO makes its appearance in everything from divorce

suits to religious disputes, to suits against one of the national

candidates for President, to a major political party, and to just

about every kind of garden variety of contractual and securities

dispute that you could imagine between businessmen, to corporate raids, to defenses against corporate raids, to state efforts to

collect state sales taxes from local businessmen.

If you find it hard to relate that potpourri to organized crime

or racketeering, you are not alone.

Id. at 371.

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To be clear, I am not saying any particular person

involved in this commercial dispute is or is not a legitimate businessman. What I am saying is equal justice under the law applies equally to crook and

cherub. Cf. Kimmelman v. Morrison, 477 U.S. 365,

380 (1986) (“The constitutional rights of criminal defendants are granted to the innocent and the guilty

alike.”); Tenn. Valley Auth. v. Hill, 437 U.S. 153, 195

(1978) (“Yes, I’d give the Devil benefit of law, for my

own safety’s sake.” (quoting ROBERT BOLT, A MAN FOR

ALL SEASONS, Act I, p. 147 (Three Plays, Heinemann

ed. 1967)). And regardless of the merits in this case,

we must worry the rules we devise today will ensnare

innocent civil RICO defendants tomorrow. Cf. Haroco,

747 F.2d at 399 n.16 (“After all, the line between

fraud and mistake or misunderstanding can be a very

fine one. It is, therefore, important that, in the further

development of civil RICO, criminal fraud be clearly

distinguished from less egregious conduct.”).

The error costs are particularly high here because

this case combines civil RICO with the First Amendment. The First Amendment protects political speech.

See Citizens United v. FEC, 558 U.S. 310, 339–40

(2010). That includes large donations to candidates

and committees. See McCutcheon v. FEC, 572 U.S.

185, 203–04 (2014) (plurality); id. at 230–31 (Thomas,

J., concurring in the judgment). Of course, the First

Amendment does not protect “‘quid pro quo’ corruption.” Id. at 192. But if we’re not careful, our efforts to

carve out unprotected speech can run headlong into

the core of the First Amendment. See, e.g., United

States v. Alvarez, 567 U.S. 709, 723 (2012) (noting

Congress can criminalize some kinds of lying, but it

48a

must be careful not to “chill” protected speech). If we

are unwilling to rigorously apply Rule 56, future

would-be speakers may remain silent rather than risk

a civil RICO trial.

Again, 1986’s summary-judgment trilogy provides

a way out of this box. The Supreme Court directs us

to consider “the actual quantum and quality of proof

necessary to support liability.” Anderson, 477 U.S. at

254. That means a summary-judgment court must

consult the underlying substantive law. See ibid.;

Matsushita, 475 U.S. at 597–98. Here, the underlying

law includes both the First Amendment (as in Anderson) and conspiracy (as in Matsushita). It also includes the line between political speech and corruption (as in McCutcheon). Putting all of that together,

Waste Management can survive summary judgment

only by pointing to some evidence of “‘quid pro quo’

corruption.” McCutcheon, 572 U.S. at 207. This, the

majority concedes, Waste Management cannot do. See

ante, slip op. at 14.

*

*

*

This is a tough case. We have not one but two individuals who were convicted of taking bribes. We

have the rough-and-tumble local politics of postKatrina New Orleans. And we have fierce competitors

in the landfill industry. The majority and I disagree

about whether all of this belongs in front of a civil

RICO jury. But I think our disagreement is driven

more by this case’s facts than by a fundamental disagreement about the post-1986 summary judgment

standard. And I don’t read the majority to allow any

49a

of these issues to reach the jury—including, for example, whether the Mayor “disregard[ed]” his policy advisors, ante, slip op. at 17—without the totality of the

facts presented in this highly unusual case.

No one finds these facts more troubling than I do.

But as Justice Scalia once said, “[t]he judge who always likes the results he reaches is a bad judge.”

Clare Kim, Justice Scalia: Constitution Is “Dead,”

MSNBC

(Oct.

2,

2013,

10:03

PM),

http://www.msnbc.com/the-last-word/justice-scaliaconstitution-dead. I don’t like granting summary

judgment to campaign-finance violators. Nor do I like

giving the benefit of the doubt to disgraced ex-government officials. But, in the absence of evidence, it’s

what the law commands. I respectfully dissent.

50a

APPENDIX B

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

WASTE MANAGEMENT OF

LOUISIANA, LLC

CIVIL ACTION

VERSUS

NO. 11-2405

RIVER BIRCH, INC.,

HIGHWAY 90, LLC,

FREDERICK R. HEEBE and

ALBERT WARD, JR.

SECTION “N” (4)

ORDER AND REASONS

Presently before the Court is Defendants’ “Motion for Partial Summary Judgment on Alleged

Bribery and Causation With Respect to Chef Menteur Claims” (Rec. Doc. 319). For the reasons stated

herein, IT IS ORDERED that the motion is

GRANTED.

I. Summary Judgment Standard

Pursuant to Rule 56(a) of the Federal Rules of

Civil Procedure, summary judgment shall be

granted “if the movant shows that there is no genuine dispute as to any material fact and the movant

is entitled to a judgment as a matter of law.” Fed.

R. Civ. P. 56(a). The materiality of facts is determined by the substantive law’s identification of

which facts are critical and which facts are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986). A fact is material if it “might affect the

outcome of the suit under the governing law.” Id.

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If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial,

the moving party may satisfy its summary judgment burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving

party’s claim. See Fed. R. Civ. P. 56(c); Celotex Corp.

v. Catrett, 477 U.S. 317, 325 (1986); see also Lavespere v. Liberty Mut. Ins. Co., 910 F.2d 167, 178 (5th

Cir. 1990). Once the moving party carries its burden

pursuant to Rule 56(a), the nonmoving party must

“go beyond the pleadings and by [his] own affidavits,

or by the ‘depositions, answers to interrogatories,

and admissions on file,’ designate ‘specific facts

showing that there is a genuine issue for trial.’” Celotex, 477 U.S. at 324; see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986); Auguster v. Vermillion Parish School

Bd., 249 F.3d 400, 402 (5th Cir. 2001).

When considering a motion for summary judgment, the Court views the evidence in the light most

favorable to the nonmoving party, Gillis v. Louisiana, 294 F.3d 755, 758 (5th Cir. 2002), and draws

all reasonable inferences in favor of that party.

Hunt v. Rapides Healthcare System, L.L.C., 277

F.3d 757, 764 (2001). Factual controversies are to be

resolved in favor of the nonmoving party, “but only

when there is an actual controversy, that is, when

both parties have submitted evidence of contradictory facts.” Little v. Liquid Air Corp., 37 F.3d 1069,

1075 (5th Cir.1994) (citations omitted). The Court

will not, “in the absence of any proof, assume that

52a

the nonmoving party could or would prove the necessary facts.” See id. (emphasis in original) (citing

Lujan v. Nat'l Wildlife Fed’n, 497 U.S. 871, 888

(1990)).

Although the Court is to consider the full record

in ruling on a motion for summary judgment, Rule

56 does not obligate it to search for evidence to support a party’s opposition to summary judgment. See

Fed. R. Civ. P. 56(c)(3) (“court need consider only

the cited materials”); Malacara v. Garber, 353 F.3d

393, 405 (5th Cir. 2003) (“When evidence exists in

the summary judgment record but the nonmovant

fails even to refer to it in the response to the motion

for summary judgment, that evidence is not

properly before the district court.”). Thus, the nonmoving party should “identify specific evidence in

the record, and articulate” precisely how that evidence supports his claims. Forsyth v. Barr, 19 F.3d

1527, 1537 (5th Cir.), cert. denied, 513 U.S. 871

(1994).

The nonmovant’s burden is not satisfied merely

by creating “some metaphysical doubt as to the material facts,” “by conclusory allegations,” by “unsubstantiated assertions,” or “by only a scintilla of evidence.” Little, 37 F.3d at 1075. Rather, a factual dispute precludes a grant of summary judgment only if

the evidence is sufficient to permit a reasonable

trier of fact to find for the nonmoving party. Smith

v. Amedisys, 298 F.3d 434, 440 (5th Cir. 2002).

II. RICO

The Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§1962(c) and (d),

53a

provides a private cause of action to “[a]ny person

injured in his business or property by reason of a

violation of section 1962 of this chapter.” 18 U.S.C.

§1964(c). Section 1962, which contains RICO’s criminal provisions, makes it “unlawful for any person

employed by or associated with any enterprise engaged in, or the activities of which affect, interstate

. . . commerce, to conduct or participate, directly or

indirectly, in the conduct of such enterprise’s affairs

through a pattern of racketeering activity.” See 18

U.S.C. §1962(c). Conspiring to violate §1962(c) also

is unlawful. Id. at §1962(d).

An “enterprise” includes any individual, partnership, corporation, association, or other legal entity,

and any union or group of individuals associated in

fact although not a legal entity. 18 U.S.C. §1961(5).

“‘[R]acketeering activity’ means (A) any act or

threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene

matter, or dealing in a controlled substance or listed

chemical . . . which is chargeable under State law

and punishable by imprisonment for more than one

year. . . .” 18 U.S.C. §1961(1). “A ‘pattern of racketeering activity’ requires at least two acts of racketeering activity . . . .” 18 U.S.C. §1961(5).

In Holmes v. Securities Investor Protection Corporation, 503 U.S. 258 (1992), the Supreme Court

set forth the standard of causation applicable to

civil RICO claims. See Hemi Group, LLC v. City of

New York, N.Y., 559 U.S. 1 (2010) (citing Holmes,

503 U.S. at 268-74). Specifically, to state a civil

claim under RICO, the plaintiff is required to show

that a RICO predicate offense “not only was a ‘but

54a

for’ cause of his injury, but was the proximate cause

as well.” Hemi Group, 559 U.S. at 8-9 (citing

Holmes, 503 U.S. at 268). Proximate cause, which is

evaluated in light of its common-law foundations,

requires “some direct relation between the injury

asserted and the injurious conduct alleged.” Id. at 9

(internal citations omitted). “A link that is ‘too remote,’ ‘purely contingent,’ or ‘indirect’ is insufficient. Id. (citing Holmes, 503 U.S. at 271, 274).

III. Analysis

Addressing Plaintiff’s RICO claims concerning

the Chef Menteur landfill, the Court previously determined that the allegations of Plaintiff’s Second

Amended Complaint regarding Defendants’ alleged

bribery of former New Orleans Mayor C. Ray Nagin

were sufficiently pled for purposes of Rules 8 and

12(b)(6) of the Federal Rules of Civil Procedure. See

Rec. Doc. 131 at 3-4. Because Plaintiff did not include Nagin’s alleged 2006 bribery in its original or

amended complaints until 2014, however, the Court

directed Plaintiff to amend its complaint to include

the factual bases for its assertion that equitable

principles rendered those claims timely despite the

application of a four-year statute of limitations. Id.

at 6. Thereafter, addressing Plaintiff's Third

Amended Complaint (Rec. Doc. 140), the Court concluded: “Although Defendants ultimately may be

able to make the evidentiary showing necessary to

prevail by summary judgment, the Court is unable

to conclude at this juncture of the proceedings,

based solely on the pleadings and without the benefit of discovery, that dismissal of the entirety of

Plaintiff's RICO claims is warranted.” See Rec. Doc.

55a

156 at 2.

Following the parties’ completion of discovery,

including the May 11, 2017 deposition of former

New Orleans mayor, C. Ray Nagin, Defendants filed

the motion for partial summary judgment now before the Court. In support of their motion, Defendants contend that Plaintiffs have failed to put forth

competent evidence that Defendants’ May 2006 contributions to Nagin’s re-election campaign constituted bribery, under Louisiana law, or that “any

such alleged bribery caused an injury” to Plaintiff.

See Rec. Doc. 319-1 at 1.

Having carefully considered the parties’ voluminous evidentiary submissions (Rec. Docs. 319, 3191, 335, and 362), the remainder of the record in this

matter, and applicable law, IT IS ORDERED that

Defendants’ instant motion for partial summary

judgment is GRANTED relative to the “causation”

element of Plaintiff’s Chef Menteur RICO claim. In

short, the Court finds that Plaintiff has failed to put

forth sufficient Rule 56 evidence to support a reasonable inference that Defendants’ May 2006 campaign contributions were the “but for” and “proximate” cause for former Mayor Nagin’s decision to allow the six-month effective period of Executive Order CRN 06-03 to expire, in accordance with the express terms of the order, in August 2006. 1 Rather,

the circumstantial evidence on which Plaintiff relies

1 See Executive Order CRN 06-03 (Rec. Doc. 335-15): “Section

4: The provision of this Executive Order shall be effective for a

period of six months unless earlier rescinded by [former Mayor

Nagin] or by other operation of law.”

56a

in opposing Defendants’ motion is far too speculative and conclusory to permit a reasonable trier of

fact to find the requisite causal connection. Accordingly, because Plaintiff has not satisfied its burden,

under Rule 56(c) and (e), of citing to particular record documents demonstrating the existence of a

genuine dispute as to material fact(s), Defendants

are entitled to dismissal with prejudice of Plaintiff’s

RICO claim premised upon the August 2006 closure

of the Chef Menteur landfill.

New Orleans, Louisiana, this 3rd day of November, 2017.

/s/Kurt D. Engelhardt

KURT D. ENGELHARDT

United States District Judge

Clerk to Copy:

Chief Magistrate Judge Karen Wells Roby

57a

APPENDIX C

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

WASTE MANAGEMENT OF

LOUISIANA, LLC

CIVIL ACTION

VERSUS

NO. 11-2405

RIVER BIRCH, INC.,

HIGHWAY 90, LLC,

FREDERICK R. HEEBE and

ALBERT WARD, JR.

SECTION “N” (4)

JUDGMENT

As reflected in Chief Magistrate Judge Roby’s

November 30, 2017 Minute Entry (Rec. Doc. 443)

and the Sealed Transcript of the November 30, 2017

Settlement Conference (Sealed Rec. Doc. 444), the

parties have reached a settlement of certain claims

asserted in this matter. Plaintiff Waste Management of Louisiana, LLC’s claim for relief asserted

under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §1964(c), concerning the Chef Menteur landfill, remains unsettled

and subject to appeal.

Accordingly, for the reasons set forth in the

Court’s Orders and Reasons dated March 31, 2014,

March 27, 2015, and November 3, 2017 (Rec. Docs.

98, 131, and 372), IT IS ORDERED, ADJUDGED,

AND DECREED that there be judgment in favor of

Defendants River Birch, Inc., Highway 90, LLC,

Frederick R. Heebe, and Albert J. Ward, Jr., and

against Plaintiff Waste Management of Louisiana,

58a

LLC, dismissing with prejudice Plaintiff Waste

Management of Louisiana, LLC’s RICO claim for relief regarding the Chef Menteur landfill.

New Orleans, Louisiana, this 4th day of January

2018.

/s/Kurt D. Engelhardt

KURT D. ENGELHARDT

United States District Judge

59a

APPENDIX D

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-30139

WASTE MANAGEMENT OF LOUISIANA, L.L.C.,

Plaintiff-Appellant

v.

RIVER BIRCH, INCORPORATED; ALBERT J.

WARD, JR.; FREDERICK R. HEEBE; HIGHWAY

90, L.L.C.,

Defendants-Appellees

Appeal from the United States District Court

for the Eastern District of Louisiana

Before DAVIS, COSTA, and OLDHAM, Circuit

Judges.

PER CURIAM:

ON PETITION FOR PANEL AND

EN BANC REHEARING

Treating the Petition for Rehearing En Banc as a

Petition for Panel Rehearing, we note that Defendants did not cite or rely on Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986),

60a

in the district court or to the panel. We therefore decline to consider that case now. Both the majority and

the dissent agree that the issue in this case is factual,

more particularly, what inferences can or will be

drawn by the jury from the evidence.

The majority continues to adhere to its view that

fact issues are presented that preclude summary

judgment. The dissent disagrees and would affirm the

district court. The petition for panel rehearing is

therefore DENIED. Accordingly, the judgment of the

district court is reversed, and the case is remanded for

further proceedings.

No member of the panel nor judge in regular active

service of the court 1 having requested that the court

be polled on Rehearing En Banc (FED. R. APP. P. AND

5TH CIR. R. 35), the Petition for Rehearing En Banc is

DENIED.

ENTERED FOR THE COURT:

/s/ W. Eugene Davis

UNITED STATES CIRCUIT JUDGE

1 Judges Stephen A. Higginson and Kurt D. Engelhardt did

not participate in the consideration of the rehearing en banc.

61a

APPENDIX E

RULE INVOLVED

Federal Rule of Civil Procedure 56

Rule 56. Summary Judgment

(a) MOTION FOR SUMMARY JUDGMENT OR PARTIAL SUMA party may move for summary

judgment, identifying each claim or defense—or the

part of each claim or defense—on which summary

judgment is sought. The court shall grant summary

judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law. The court

should state on the record the reasons for granting or

denying the motion.

MARY JUDGMENT.

(b) TIME TO FILE A MOTION. Unless a different time is

set by local rule or the court orders otherwise, a party

may file a motion for summary judgment at any time

until 30 days after the close of all discovery.

(c) PROCEDURES.

(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in

the record, including depositions, documents,

electronically stored information, affidavits or

declarations, stipulations (including those

made for purposes of the motion only), admissions, interrogatory answers, or other materials; or

62a

(B) showing that the materials cited do not

establish the absence or presence of a genuine

dispute, or that an adverse party cannot produce admissible evidence to support the fact.

(2) Objection That a Fact Is Not Supported by

Admissible Evidence. A party may object that the

material cited to support or dispute a fact cannot

be presented in a form that would be admissible in

evidence.

(3) Materials Not Cited. The court need consider only the cited materials, but it may consider

other materials in the record.

(4) Affidavits or Declarations. An affidavit or

declaration used to support or oppose a motion

must be made on personal knowledge, set out facts

that would be admissible in evidence, and show

that the affiant or declarant is competent to testify

on the matters stated.

(d) WHEN FACTS ARE UNAVAILABLE TO THE NONMOVANT. If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present

facts essential to justify its opposition, the court may:

(1) defer considering the motion or deny it;

(2) allow time to obtain affidavits or declarations or to take discovery; or

(3) issue any other appropriate order.

(e) FAILING TO PROPERLY SUPPORT OR ADDRESS A FACT.

If a party fails to properly support an assertion of fact

or fails to properly address another party’s assertion

of fact as required by Rule 56(c), the court may:

63a

(1) give an opportunity to properly support or

address the fact;

(2) consider the fact undisputed for purposes of

the motion;

(3) grant summary judgment if the motion and

supporting materials—including the facts considered undisputed—show that the movant is entitled to it; or

(4) issue any other appropriate order.

(f) JUDGMENT INDEPENDENT OF THE MOTION. After giving notice and a reasonable time to respond, the court

may:

(1) grant summary judgment for a nonmovant;

(2) grant the motion on grounds not raised by a

party; or

(3) consider summary judgment on its own after identifying for the parties material facts that

may not be genuinely in dispute.

(g) FAILING TO GRANT ALL THE REQUESTED RELIEF. If

the court does not grant all the relief requested by the

motion, it may enter an order stating any material

fact—including an item of damages or other relief—

that is not genuinely in dispute and treating the fact

as established in the case.

(h) AFFIDAVIT OR DECLARATION SUBMITTED IN BAD

FAITH. If satisfied that an affidavit or declaration under this rule is submitted in bad faith or solely for delay, the court—after notice and a reasonable time to

respond—ricmay order the submitting party to pay

64a

the other party the reasonable expenses, including attorney’s fees, it incurred as a result. An offending

party or attorney may also be held in contempt or subjected to other appropriate sanctions.