that created material issues of fact on the union subjectives it starts in that intent and intent to defraud i'd like to start by pointing out the line is the most important facts that were not mentioned at the district  of may two thousand and nine emails between the international match connecticut local state of the care one had been flagged as a potential campaign target based on data mining medicare statistics aimed at finding employers with perceived weaknesses that could be used as leverage and campaign this was long before any alleged l fair labor practices it was before any issues include just barking it was a classic stor isn't is there something extortionate or wrongful in a union saying i think this i think this company is right for pressure you know we can we can with the norris floor idea act that the court in that instance decided that the standard of proof that rico prevailed what's your best case that any of this is all right if there's a claim of right in the claim of right here was the union pursuing you know labor negotiation pursuing collective bargaining pursuing having this these companies brought to the table basically so what's your sir certainly in the end its decision applies specifically to the hobbs act if we look as to see what is extraordinary under the state law statutes we've looked to the model penal code and the specific state law  statutes in question now the district court in deciding that this was not generic extortion utilized the standards under the hot sabse there's no suggestion in the end means that it intended to exception doesn't apply if the claim of right the fence is going to be the same in both what it what does it matter whether we're talking about the hobbs action air definition or the state law definition that you're pressing  ok at this st the court and brokerage concepts to point to establish a general rule and said that it's holding up was very specific to the facts that case and the facts the fact is there was nothing like we've seen here in the  question and i lost you right at the point where you were explaining your position on why the the there is a meaningful difference between state law and for purposes of this rico discussion in light of brokerage concepts having applied the right to claim the claim of right the fence the nonunion setting that's where we and excuse me if i'm repeating myself but the core temperature concept and implying variations the claim of right defense said it was not establishing a general rule that it was dealing with a very fact specific situation and each situation needed to be decided on those facts now we have very different facts here st because the unions have to admit that obtaining a collective bargaining agreement was not their only goal here an official promise testified that the purpose of actions taken in puerto rico was to a harm an unrelated business there the union admitted that it had the goal of putting appellants into receivership circuit case local eight hundred and fourteen case and what they said very specifically we're deciding a narrow question here and that is whether that sixty year old general prohibition on  against injunctions and labor disputes will will bar relief in the case like this and they said no they weren't talking at all to section six and that seems to be meaningful she require meant though and that's clear couldn't be clearer in section six if there is an agency requirement that's different than any other defendant maybe you didn't mean to speak that broadly you know there's a statutory statement that says it now well i think we do have a substantial evidence that the union was involved that the union authorized the acts of sabotage there was a question of fact under whatever standard is applied but judge it may i before i respond to that question i did want to wrap up on your question about generic extortion and awfulness because i think that's that's very important and i all the pressure campaigns everything we were doing you might find it of noxious you might find it you know bad behavior not polite but our our job is to get better wages and benefits for people and we're in a collective bargaining agreement negotiation you're saying and they it's got to be kid gloves they can't get tough they can't get hard nosed the way they can i mean are you actually making a distinction between wait a nd you withheld the benefits and wait a nd we want better benefits that that's the legal line between whether they can engage the kind of pressure tactics we're talking about that's the legal line into terminating whether a claim  applies under the model penal code aren't and one hundred to three state statutes that we lie on and we're not at all saying that the union can't get tough what we're saying is that the union can't come to us and say you know we're go better way to ask this is at that point are you are you pulling us into what mr d dion said in the briefing is a st amendment morass because we're talking about integral to committing a crime her exempt from st amendment coverage and we're not trying to leave the fraudulent piece out because that's adding your spin on something that maybe it's right maybe but i'll just talk about integral to committing a crime that's the only thing i'd say that's assuming v m doesn't advance at the say statements that are made for extortion that's what we're trying to deal with right now is whether this is your own or perhaps some misunderstanding but yes the hearing comes to my agent which we contends that it did and says were both dropped error ten taxpayer petitions in under massachusetts law and under the model penal code which even as i'm going to district were even the district court seemed to agree with you on that right but said that's not admissible evidence so i can't you can't rely on that here and i can't rely on it in your thirty five that's that's if you don't cite the if you don't like the rule that you're relying on isn't better problem we cited the substance of that argument by saying it was truthfully documented in an email from plaintiff's representative and i think under this court's decision and try improve versus shark it is a closely related argument that can be considered on appeal moreover other express the very similar threat it's worded differently but it's in their e mails that was that's clear the admissible evidence of the store should it threat and when to are a pretty high bar for something like this if they're willing to part in good faith the connecticut workers and give workers throughout the rest of the company a fair opportunity to organize then yeah we'd be willing to let them move forward email that he courts that conversation we have those internal e mails specifically referring to making math threat to to care one who is that i've raised in the district  if you raise an argument sufficiently analogous to it to preserve that appeals i recall it we did raise the argument with regard to the internal e mails as an other as other evidence severely argued that is with the that the president of the connecticut union specifically said in his deposition i asked him did you want to get in and tighten and conviction of course we did and you thought that would help your eyes to it if you see this have where the we're going to i think the answer to that is twofold is that a threat to accuse someone of criminal behavior is extortionate even if the person is guilty of that suggestion that this is something they're bargaining with but they think there's medicare fraud here and they're reporting it they're not it's they're not looking they're not looking to bargain with it they're just public spirited citizens who want to see company if you're just a good public citizen and you're reporting this wrong to me you're not going to care whether a copy of that goes to the company or not they want to put him on notice of what was going to happen if they didn't give in and this your honour's is what brings us back to that initial in mail that i mentioned and makes it critically important this all started before there were any problems when the union said hey as seen from the get go they picked us because they thought they could do this and this was think unions pattern they've done this with multiple other employers saying you know as a general matter as whistleblowers but when they're insists pew with a him boy are they making allegations of medicare billing fraud that's the pattern of conduct and that to mention any of the facts that were favorable to the plaintiffs with three targets to intently didn't touch on mail and wire fraud there were questions of fact of intent to deceive the mail wire fraud or the district court criminal laws into the field of labor management relations despite the fact that this is been an area that congress but you're not suggesting this there are unique considerations in the area of labor relations that deal with the tension that here and that ended bargaining think was alluded to by judge jordan is is lay is core and labor management relations conduct the objectives here were labor management goals well believe it please don't misunderstand anything i said  s implying a conclusion i'm just asking questions i got one for you which comes right out of ms alito those closing there how is it not a jury question whether or not a union who picks but target because they think they can bring a criminal threat against them not something that we should be sending back and saying hey whether they had that kind of bad intent or not is something for the jury to decide because if they did have that kind of if that was their aim to leverage the criminal system against the company to extract investigation against another party under every test put forward there has to be a threat in this case that record is crystal clear there is no dispute about this that the unions never threatened care one with any criminal accusation or with any i started nd when you say that's crystal clear i'm just speaking for myself it's not crystal clear to me that when  sends a letter to a u s senator and says we want this to go to the department of health and so they answer the u s department of justice because these guys are engaged in fraud in medicare fraud that's far from clear well let's let's clear is that there was no effort in your and every extortion case of this type that the plaintiffs can cite or that anyone can cite the person who is reporting wrongdoing has offered to withhold that report in exchange for consideration ok well then are used or you acknowledging that if once if one went and said look i could i could bring the authorities down on you for medicare fraud but i'm not willing to do that if we can talk about wages and benefits are you agreeing that that would be extortion that would be that would meet the ron full use test of extortion under the model penal code absolutely there will be ever and why can't that be why can't the threat be implicit instead of exploits because what you seem to be saying is unless they say it it's not a threat why can't there be an implicit threat as well as an explicit one and still be extortion and why wouldn't that be a jury question when the underlying conduct that is engaged in without a threat threat or not it it can't be as a matter of law an implicit threat when the only conduct is making the constitutionally protected report otherwise as we showed in our brief in any way here it would it would absolutely be which is why we you know he stated that if you follow these sort of basic basic extortion principles from the model penal code and brokerage concepts you don't have to get to the issue but you absolutely would have to get to the issue and then if you did get to that issue you'd be in front of a jury or at least the firm to judge arguing sham litigation right that's what they'd be saying it's sham fact that's not what they would be saying that's what they are saying that that this this purported exercise of right the petition it said it was a sham all designed to do them harm an injury but again why why are those things question here because the definition of sham litigation or ship or a sham petition is one that the petitioner does not believe will sports has a chance of succeeding on its own merits well you know i dispute and i'm looking at these posters against mr strauss you know want it proclamation share want it for corporate greed and robbing workers of their right when it could be a cheery look at these types of things and say ok you say it's climate right because you're going for a labor dispute but you're really trying to put pressure on this man in a way that's just that's not right if you will i mean shouldn't the jury look at whether claim of right really allows everything to be off the table if you will is that seems to be your which the plaintiffs themselves you know sort of put forward as the proper analysis that's point one dollar is that even on a more restricted test of claim of right then the model penal code test which is the test i understand the plaintiffs to be advocating here be only what would make conduct like that potentially extortion it would be if the there were no link to the you know to the collective bargaining objective and then when you get any link then that's where should new jury find whether the link is so tenuous as to not be credible you know if you're tired but rather what are they  of the reasoning of the supreme court in heavens were of course the court said that violence in pursuit of a collective bargaining yakked of was not something the congress intended took to bring criminal law into sto there are other remedies for d for dirtbag throw him off this board does it did it involve go into a u s territory and addressing businesses that have nothing to do with the union nothing to do with health care issues that they're dealing with and attacking them i mean those those things weren't in u b c were they when you b c i believe and u b c one of the representatives or supporters of the carpenters campaign you know said that the that the head of the carpenters was someone who  you know who should be basically run right out of town on a rail and hung from the highest tree the court properly found that that was you know protected speech because it wasn't a real threat absolutely this this is a can do they could do anything to distract us they can they can do anything to him because these he's the c e o and it's ok because it's a labor no limit no not no there is a limit and the limit is in it is in the brokerage concepts line of cases the limit is that where the threat is is is is a pure zine is economic pressure by definition i guess i guess you're saying short of break in the guy's ankles you can do anything because it's all designed to bring the to bring the union to bring the care one people to the bargaining table in a weakened state like their own admission that's the point the point is i mean i can reach you excerpts from the deposition but you've seen him to his personal philanthropic activities was in effect pressure point yes i think i was saying again there was there was an affiliation that he had they were working to get his business to operate differently and make it different decision and messing with strauss was an effective pressure point yeah but i don't know what you mean by messing with i mean knew what they were doing it's clear isabel they knew what they were doing so what you're saying is pretty nice reputation you have there shame if something happened to it and they and that's ok well let's to i think you need this is a distinction made in the model penal code in the cases there was no threat to reveal personal secrets which is in a different category as we pointed out in our brief all that was being done was publicizing his labor record and there was a long track record of violations so the communications about mr strauss at n y u are are within the core of what even the plaintiff's restricted view of extortion permits because the message of those communications was this gentleman mr strauss is a repeat labor law violator that is out how about how about his economic interests in a development in manhattan how about his businesses were greek over those labor related the message the message that was being the message that was used with respect to the business development was this person is a labor law violator so the message had wrecked access to the goals anywhere in utah anything that size ok i'm sorry go ahead just look at the jury decide what's the message i mean when they are they're saying ninety nine percent of americans are struggling but daniel strauss isn't you know he has ninety five million dollars and over the way you know he violates workers like him it's your to decide this is quote unquote economic pressure or whether it's other kinds of pressure and whether this is covered by climate right i mean these are things you know paucity of case law since edmonds that really talks about but these kinds of things and the nature of this pressure and i find this case to be distinguishable from some of the cases that is sad you know that you know it's finance and even edmunds you know there are some property destruction it's not personal you know attacks at hominem attacks against people that they really can't defend so it's question is why should a jury decide well when you when when the when the attack is against a person who is running a corporation that is violating labor laws i mean the jury should decide because this is where the st amendment truly is implicated on a on a  reading of the claim of right where these questions are questions of law you don't have to worry about the st amendment implications because you don't you're not close to a wrongful means but if you were to go if you were to go in that direction you would have the prospect that a jury could could put someone in jail because this is their theory has to apply to the criminal law not just a civil case that the idea that you would put someone in jail for twenty years for saying this person who has sponsored an institute of line justice may be a hypocrite because his companies are violating labor law that would be i don't think i don't think you would be put somebody in jail for twenty years for that mr dan exits into a whole series of questions about proof beyond a reasonable doubt and sentencing guidelines and things like that which are just not in front of us i don't think you have to pull your you don't have to push your st amendment argument that hard you know you've you've got a decent st amendment argument which is don't weigh in to this you can avoid this a constitutionally but that that feels like you're like you're pushing that a little too hard like him my real question and i think you're hearing this from all of us right now is there was a when you say the jury should never see this it what it really feels like you're saying is there is there is virtually nothing a union can do that is not ok as long as there's a labor dispute it can start by looking for somebody that it wants to use a criminal threat against it can actually make a threat about criminal  prosecution by by making referrals if you if you assume that there's an implicit threat there it can foul up unrelated regulatory issues ind put people in residence that they don't have anything to do with that risk by holding up necessary improvements the buildings it can trash the personal reputation of a business person it can do all those things and because it's in the context of a business a labor dispute it's all good it's all good and don't mess with us because we've got the st amendment on our site that's the that's the position that ms alito is putting to us and i'm curious to code would go i want to be very clear about this you do not have to go as far as the model penal code and say that there would be a claim of right for all of this that would be a proper defense in order to rule for us he simply would have to follow brokerage concent and the a b c case and let me explain why there was no there because the way that the union proceeded with respect to the blumenthal letter was and the testimony is clear on this was to bring th report and offer to withhold it in exchange for consideration in order to rule for our side and to affirm judgment in this case she properly found that on the record you can find such a threat well if you couldn't find an explicit threat but now we're just back to the question i asked before why can't you make an argument why couldn't you expect them to be making an argument in fact they are making the argument that the threat is in close here is it right there is that you come to the table this week we won't in the movie i've got to go watch to his throne acting if acting as a whistleblower without offering to withhold the whistle blowing can be sufficient evidence to put someone in jail for twenty years that would have an extraordinary that would be far worse than that that had more pennington come out the other way there is no allegation that the union did not believe that those allegations were sound there was no allegation that that that that those on this not because they thought we're good citizens and we want to wipe out medicare fraud but because they said these guys we can tell we can let them know in a multitude of ways without ever saying that they're in trouble and they're going to be in big trouble if they don't come to the table now that occurs to me to be typically the sort of thing that a jury answers the question they say we don't believe that was what they were doing but but but i disagree the lesson of norte pennington and all of its including right up to and we could submit a letter on this on the right to petition including the b in k construction case all of those cases say and b in k construction the shoe is on the other foot an employer brought a piece of litigation that looked to the whole world as if it was only brought because the union had had a successfully brought some unfair labor practice charges and was making progress in the labor dispute the supreme court it does not matter what the motive is if that petition was a was sound and the employer believed that it had a chance of succeeding it is as a matter of law outside the shanika exception  is only to use the process to effectuate a certain result and not to be indicate the underlying claim medicaid fraud seems to me that is exactly what nora pennington is aimed that that's the curb out that if the in not not unless there is some evidence that that the petitioner believe that the petition would not succeed the motive becomes relevant that's the lesson of those cases the motive exactly the motive but if you only if the only if is the key the proof that there was an objective lee baseless charge made here there is no proof of that and the and the evidence when mr pinkus testified is that position that he hoped that it would succeed that he hoped that the government would act that was the antithesis of a nor pennington of bad behavior intern or pennington that was i hope this succeeds that wasn't i hope it just sits there as a as a hammer and everyone who testified and you know what do we make coleman what do we make of the assertion by the other side that this wasn't just saying that care one that the the statement we're going to we're going to turn your health care facilities into pizza parlors we're driving you out of this state was was really a larger aim by the unions to send messages to other companies that this was it may it may have been the case that they thought we'll take this one down that's all right but this is part and parcel of our way of signaling to the next business will destroy you and that's ok we'll just destroy you and then the next one we won't we won't have to burn the next village down because we burn this one down and they'll all get the message so under there is nothing inappropriate there the let me put it this way and this is important there's nothing extortion and if and  supreme court's cases from scheidler through stack are the supreme court has been very careful and ends running before secor those cases tell a very important lesson and the lesson is that extortion is a very specific kind of crime that isn't supposed to be charged just because you don't like the conduct or find it distasteful often an oath and i hope i'm not sending i hope that's not what i'm getting at i hope you don't think that we're thinking he union i mean that's not the point the point is she trying to get you to address the other sites argument that there is behavior here which a jury should look at because a jury could look at this and say when a union official says we will we will wipe you out we will turn your business into pizza parlors and they say on the record there is evidence this is a message to everybody that that is something a jury can look at they could surely should look at that and say you know what i think that's extortion what is wrong with that argument what's wrong with it is it is flatly inconsistent with the united states supreme court's decision in scheidler where the facts were that a right to life group that resorted to violence and blocking of entrances to an abortion clinic for the for the express purpose undisputed of shutting down the clinic was not engage an extortion but may have been engaged in the different non rico predicate crime of coersion so there are different crimes and different torts and this is not the appropriate fit extortion is not the appropriate crime if any crime is to be charged on by the way there's no there's no evidence that any of what the unions did here was was even a tort so if you're if you're concerned about the broad implications you can look at the conduct here but but on the issue of destroying the business that union for every strike every single strike and this is why bring it back to labor relations and every single strike the message is that we are hoping that your vendors don't come in we're hoping that your workers don't cross the picket line we are hoping that the rest of the world isolates you true enough and this isn't a strike so right none of that has any relevance to what we're talking about right here well the argument that's been made to us is not these people engaged in strike behavior that went too far the argument that's being made is these people did things which have nothing to do with ordinary labor kind of relations these were pressure tactics which are outside the law the argument these are pressure tactics that have been that that are used by labor organizations by civil rights organizations these are these are these are basically cause for economic boycotts any successful boycott threatens to put a business out you know i don't want to get too into the weeds of the facts but on the pizza parlor thing that was made in the context of the company itself closing closing its nursing homes one by one to put pressure on the union and mr pickens just said you know it's up to you how you operate your business you can turn them into pizza parlors so i don't want to get into the weeds of the facts on that but but since that's been a theme here if you look at the record in the context it's not a threat to turn anyone into a pizza parlor it's a statement of the company's rights you know and they're closing their homes to get leverage against the union so you know i think tactics but here there's if there's no resort to violence there is no threat to to do engage in any kind of classic blackmail which is the revealing of a personal secret all that was threatened about mr to mr strauss implicitly or explicitly through the protests and why you were that you have a reputation you know you have a reputation maybe for for downing an institute of public justice and we're going to point out records there was no effort to sort of pry into a person into his personal life that's why the u b c case is on point judges scanlon carved out you know true blackmail of you know the kind that you might see in a soap opera where that where the person you know we