PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

No. 19-3693

_______________

CARE ONE MANAGEMENT LLC, ET AL.

 Appellants

v.

UNITED HEALTHCARE WORKERS EAST, ET AL.

 

________________________

On Appeal from the United States District Court

for the District of New Jersey

No. 2:12-cv-06371

District Judge: Honorable Susan D. Wigenton

______________________

Argued: September 24, 2020

_______________

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

(Opinion filed: July 28, 2022)
2

Rosemary Alito [Argued]

George P. Barbatsuly

K&L Gates

One Newark Center

10th Floor

Newark, NJ 07102

Michael D. Critchley

Chritchley Kinum & Luria 

75 Livingston Avenue

3rd Floor

Roseland, NJ 07068

Counsel for Plaintiffs-Appellants

A. Matthew Boxer

Lowenstein Sandler

One Lowenstein Drive

Roseland, NJ 07068

Leon Dayan [Argued]

Jacob Karabell

Caitlin D. Kekacs

Joshua A. Segal

Bredhoff & Kaiser

805 15th Street, N.W.

Suite 1000

Washington, DC 20005

David M. Slutsky

Levy Ratner

80 Eighth Avenue

8th Floor

New York, NY 10011

Counsel for Defendants-Appellees
3

______________

OPINION

______________

McKee, Circuit Judge.

The Racketeer Influenced and Corrupt Organizations 

Act (RICO)1 authorizes private civil causes of action for acting

as an “enterprise” and conducting a “pattern of racketeering 

activity” through certain criminal predicate acts.2 These 

predicate acts include federal crimes such as mail and wire 

fraud, and certain state crimes, including extortion.3 This case 

concerns civil RICO liability predicated on federal mail and 

wire fraud, as well as state law extortion through acts of 

sabotage and fear of economic loss. For the reasons that 

follow, we conclude that the District Court erred in deciding

that this record could not support a finding that the Unions

authorized or ratified conduct that could constitute extortion or 

that they wrongfully exploited threats of economic harm. We 

will affirm the District Court’s grant of summary judgment in 

favor of the Unions on the remaining claims of RICO liability

and remand for further proceedings consistent with this 

opinion. 

I. Factual Background

Plaintiffs-Appellants Care One Management LLC,

HealthBridge Management LLC (“HealthBridge”), the Care 

1 18 U.S.C. § 1961 et seq. 2 Id. §§ 1962(c), 1964(c). 3 Id. § 1961(1)(A), (B). 
4

One Facilities,

4 and the HealthBridge Facilities5 (collectively, 

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

4 Care One manages 21 facilities located throughout the State 

of New Jersey including the following: Care One at 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Care One at Dunroven; Millennium Healthcare Centers II, 

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

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

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

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

Jackson; 101 Whippany Road Operating Company, LLC 

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

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

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

Rehabilitation Center at Raritan Bay Medical Center, LLC 

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

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

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

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

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

Mgmt., LLC v. United Healthcare Workers E., SEIU 1199,

No. 12-6371, 2019 WL 5541410, at *1 n.1 (D.N.J. Oct. 28, 

2019).

5 The HealthBridge Facilities include the following: 600 

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

Health Care Center; 800 River Road Operating Company, 

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

Operating Company, LLC, d/b/a South Jersey Health Care 
5

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

Somerset Valley Rehabilitation and Nursing Center; 341 

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

Health Care Center; 1 Burr Road Operating Company II, 

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

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

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

Newington Health Care Center; 245 Orange Avenue 

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

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

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

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

Center; 2028 Bridgeport Avenue Operating Company II, 

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

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

Health Care Center; 135 Benton Drive Operating Company, 

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

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

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

Lowell Health Care Center; 199 Andover Street Operating 

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

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

Newton Healthcare Center; 221 Fitzgerald Drive Operating 

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

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

Rehabilitation Center; 312 Millbury Avenue Operating 

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

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

Hill Health Care Center; 548 Elm Street Operating Company, 

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

Northhampton; 57 Old Road to Nine Acre Corner Operating 

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

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

Weymouth Health Care Center; 750 Woburn Street Operating 

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

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

Brookline Health Care Center; 265 Essex Street Operating 

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

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

Centers (collectively referred to herein as the “HealthBridge 

Facilities”). Id. at *1 n.2.
6

facilities throughout the Northeast. Defendants-Appellees are 

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

England Health Care Employees Union District 1199

(“NEHCEU”), and the Service Employees International Union 

(“SEIU”) (collectively, “Unions”). The Unions represented 

several employees at various Care One facilities. This suit is 

the culmination of a history of conflict and animosity that has 

unfortunately characterized the relationship between Care One 

and the Unions.

In 2010 and 2011, the Unions filed charges against Care 

One with the National Labor Relations Board.

6

 They alleged 

that Care One had improperly terminated or threatened 

employees, improperly ended benefits, and wrongfully 

suppressed union communications at the Connecticut 

facilities.

7

 They also alleged that Care One had engaged in 

unfair labor practices during and after a union election in the 

Somerset, New Jersey facility.

8

 The NLRB responded with 

complaints and hearing notices charging Care One with 

interfering with rights guaranteed by the National Labor 

Relations Act, including the refusal to bargain collectively and 

in good faith.9

 

Beginning in January 2011, while the NLRB complaints 

were pending, NEHCEU and Care One attempted to negotiate

a renewal of the Connecticut facilities’ collective bargaining 

agreements.

10 Those negotiations were not fruitful, and 

NEHCEU called a strike at those facilities. The night before 

the strike was to begin, the Connecticut facilities were 

vandalized and sabotaged.

11 Patient identifying information 

(including patient wrist bands, door name plates, and dietary 

requirement documents) were mixed up.

12 Medical records 

were altered, medical equipment was damaged or hidden, and 

laundry equipment was vandalized.13 At Care One’s request, 

the Connecticut State’s Attorney investigated, but the 

investigation yielded neither suspects nor charges.

6 Id. at *2.

7 Id.

8 Id. 9 Id.

10 Id. at *3.

11 Id.

12 Id.

13 Id.
7

Union documents later obtained in discovery revealed

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

their working conditions”14 and to resort to “more militant” 

levels of activity.15 The president of NEHCEU had also made 

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

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

the law was able to stop [Care One’s] behavior.”16 After the 

incidents, NEHCEU’s Communications Director, Deborah 

Chernoff, wrote to fellow employees, referring to the 

allegations of vandalism and destruction. The communication

included the statement: “Of course anyone with a peasized

brain would realize this isn’t a tactic we would undertake.”17 

When a reporter asked the NEHCEU about the vandalism and 

destruction at the Care One facilities, Chernoff wrote:

The allegations made by HealthBridge, if true, 

are very serious indeed. Should evidence be 

found that anyone took any action that would 

compromise care or put residents at risk, that 

person or persons should be held fully 

accountable, no matter who they might be.18

The record also contains several emails sent after the 

incident. They include an email from Chernoff, which 

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

Connecticut Department of Public Health as “mudd[ying] the 

waters and support[ing] the contention of the workers that” 

patients may have removed their identifying bracelets 

themselves rather than saboteurs.19 There is also an email from 

Chernoff to Chas Walker, Elected Organizer of UHWE, and 

others in SEIU. It was sent after the vandalism and sabotage. 

That email appears to respond to Walker’s suggestion that the 

Unions launch their own investigation or actively seek to 

participate in the police investigation. In the email, Chernoff 

14 JA 5852, a facilitator teaching document with the goal of 

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

to an organizing agenda.”

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

organizer.

16 Defs.’ Summ. J. Reply at 5.

17 JA 6825. 18 JA 1068.

19 JA 5842.
8

suggested it would be “a very bad idea” to seek to participate 

in the police investigation because the Unions should not 

“suggest [they] have information [they] don’t have.”20 The 

email also stressed the Unions’ obligation to their members, 

“even when they are totally in the wrong.”21 

In addition, in 2011, with help from NEHCEU and 

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

and business practices. The campaign materials included 

developing websites, print and radio advertisements, as well as

flyers questioning Care One’s billing practices and standards 

of care. The campaign also publicized the NLRB complaints.

22 

The union advertisements Care One focuses on before us 

included several rhetorical questions. The first asks: “Are 

HealthBridge Nursing Homes Employing Enough Caregivers 

For Our Loved Ones?” It asserts Care One provided belowaverage coverage by certified nursing assistants.

23 The second 

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

Drugs?” and asserts that Care One excessively administered 

medications.

24 The third asks: “Overbilled at a HealthBridge 

Nursing Home?” and references overbilling.

25 The fourth

asks: “Who’s in Charge at HealthBridge Nursing Homes?” and 

states that the facilities have an unhealthy level of turnover.

26 

The Unions submitted evidence to the District Court to 

show that this publicity campaign was subject to fact-checking 

and vetting procedures. But Care One alleges no such 

safeguards were actually in place. Despite Care One’s 

allegations to the contrary, Amy Gladstein, UHWE’s Assistant 

for Strategic Organizing, testified that the Unions had adopted 

certain protocols requiring researchers to be trained in 

conducting careful research. She also claimed that the 

advertisements were based on initial fact-gathering. 

According to her colleague, David Bates, the ads had to be 

“vetted by the research department for accuracy,”27 and many 

20 JA 5831.

21 Id.

22 Care One, 2019 WL 5541410, at *3. 23 JA 2491.

24 JA 2501.

25 JA 2477.

26 JA 2494.

27 JA 2761.
9

testified that the advertisements were fact-checked by trusted 

researchers and outside counsel.28

From July through November 2011, the UHWE also 

filed petitions for public hearings on applications for 

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

Massachusetts Department of Public Health. Care One had 

filed the applications to obtain approval for capital 

improvement projects at their facilities.29 The Unions’

objections delayed approval of Care One’s applications. At 

one hearing, occurring almost a year after Care One filed its 

application, two Union members opposed the renovations, 

“alleg[ing] that they had been wrongfully dismissed from their 

longstanding jobs because of their support for the formation of 

a union at the nursing home.”30 The opposition was obviously 

unrelated to the nature of the hearing, and the regulator 

concluded as much.31 During a deposition, a Union official 

acknowledged that their opposition “was for an objective other 

than blocking the repairs.”32

In February 2012, the Unions also asked Senator 

Richard Blumenthal, a U.S. senator from Connecticut, to 

investigate Care One’s allegedly questionable billing practices. 

Senator Blumenthal responded by asking the Secretary of the 

U.S. Department of Health and Human Services to audit Care 

One’s billing practices and to investigate and pursue any 

enforcement actions deemed necessary. The Unions then made 

sure that a copy of the Senator’s letter was delivered to Care 

One.

The Unions’ campaign also involved demonstrations, 

including one held in August 2012 at Care One’s offices where 

petitions for fair collective bargaining were delivered. The 

28 See JA 5327 (fact checking was “Megan [Thorsfeldt’s] job 

and I trust her”); JA 2642 (vetting was conducted on the 

research side and legal side); JA 5134 (accuracy was the 

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

(Gladstein explaining that “my researchers” were responsible 

for accuracy).

29 JA 1480–84.

30 JA 2557. 

31 See id. (“Staff did not find these comments to be pertinent 

to . . . [the government’s] regulatory authority in its review of 

this application.”).

32 JA 3382.
10

Unions also staged a peaceful protest at NYU Law School 

where demonstrators handed out materials questioning Care 

One’s owner and CEO Daniel Straus’s purported hypocrisy for 

endowing the Institute for the Advanced Study of Law & 

Justice at NYU while allegedly violating labor law. The 

Unions also targeted unrelated business ventures of Straus, 

“block[ing] the development of a condominium project in 

which . . . Straus had invested” and “purchasing radio 

advertisements in Puerto Rico to disparage two unrelated 

businesses . . . Straus owned there.”33

II. Procedural Background

Care One sued the Unions for damages arising from 

these actions. Care One alleged they constituted a pattern of 

racketeering in violation of RICO. Among other 

characterizations, Care One alleged the Unions’ actions were 

extortionate. The District Court granted the Unions’ motion 

for summary judgment and dismissed the complaint. The 

Court held that no reasonable juror could conclude that the 

vandalism underlying Care One’s claims could be attributed to 

union members, much less the Unions themselves.34 It also 

concluded that other actions the Unions undertook to exert

pressure on Care One—including the advertisements, 

picketing, and attempts to invoke regulatory and legal

processes—were not extortionate. The Court also found that 

Defendants lacked the specific intent to deceive and were 

therefore entitled to summary judgment on the mail and wire 

fraud claims.

35 This appeal followed. 

III. Discussion36

33 Appellant Br. at 34.

34 Care One, 2019 WL 5541410, at *6.

35 Id. at *7–10.

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

1331, 1337, 1367. We have jurisdiction pursuant to id. § 

1291. We review a grant of summary judgment de novo. 

Tundo v. Cnty. of Passaic, 923 F.3d 283, 286 (3d Cir. 2019). 

A district court properly grants summary judgment if the 

moving party shows there is “no genuine dispute as to any 

material fact and the movant is entitled to judgment as a 

matter of law.” Id. at 286–87 (citing Fed. R. Civ. P. 56(a)). 

We view the facts “in the light most favorable to the nonmoving party and [draw] all reasonable inferences in that 
11

RICO imposes criminal and civil liability upon those 

who engage in certain “prohibited activities.”37 It provides 

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

property by reason of a violation of [18 U.S.C. § 1962].”38 To 

establish liability under § 1962(c), a plaintiff must show that 

defendant(s) acted as an “enterprise” and conducted a “pattern 

of racketeering activity” through certain criminal predicate 

acts.

39 As noted earlier, these acts may include federal crimes 

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

crimes, including extortion.

40 Care One argues that the District 

Court erred in granting the Unions’ motion for summary 

judgment because the undisputed facts are sufficient to allow a 

jury to conclude that the Unions committed the following 

predicate acts for RICO liability: (1) mail and wire fraud, and 

(2) extortion under state law through both sabotage and fear of 

economic loss. We begin our analysis by discussing Care 

One’s reliance on mail and wire fraud.

1. Mail and Wire Fraud

Care One’s claims of mail and wire fraud are based on

the allegedly false and misleading advertisements mentioned 

above. The District Court granted summary judgment to the 

Unions on those claims because it found proof of the requisite 

element of specific intent to defraud lacking.

41 It concluded 

that the record did not support a finding of specific intent to 

deceive because the Unions had fact-checking and vetting 

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

and approved the publications believed the advertisements to 

be truthful.42 Care One argues that there were material disputes 

of fact as to whether such procedures existed or whether the 

party’s favor.” Id. at 287 (alteration in original) (citations 

omitted).

37 H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 232 (1989)

(citing 18 U.S.C. §§ 1961–68). 38 Wilkie v. Robbins, 551 U.S. 537, 563 (2007) (alterations in 

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

39 18 U.S.C. § 1962(c). 

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

union can constitute a RICO enterprise if its affairs are 

conducted through a pattern of racketeering activity. See

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

41 Care One, 2019 WL 5541410, at *10. 42 Id.
12

procedures were followed if they did exist. Care One also 

claims the District Court should have looked beyond the factchecking procedures to determine whether the Unions’ 

statements contained half-truths or concealed material facts. 

We review each argument in turn.

a. Unions’ Fact-Checking Process

First, we turn to Care One’s argument that there were 

material disputes of fact as to whether fact-checking 

procedures existed and whether the procedures were followed 

if they did exist. After reviewing the affidavits that both sides 

submitted for the summary judgment motions, we hold that the 

trial court did not err. Care One argues that UHWE Assistant 

for Strategic Organizing Amy Gladstein’s deposition 

establishes that the Unions lacked effective vetting procedures. 

That is a misreading of the record. Gladstein merely denied 

that union protocols were as strict as in “a laboratory.”43 But 

she emphasized that union researchers were trained to conduct 

careful research and that the advertisements were based on 

initial fact gathering.44 

Care One also contends that a union employee admitted 

that communications were published without prior approval. 

But that employee merely specified that the procedure did not 

require him to sign-off on the ads. He nevertheless reaffirmed 

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

accuracy.”45 Care One points to a communications employee 

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

she could send out certain things without her supervisor’s 

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

required such approval.

46 None of this contradicts the process 

the Unions outlined. That process included fact-checking and 

vetting communications and not releasing anything without the 

approval of an officer or senior staff employee with authority

to approve them.

47 Care One can point to specific officers or 

senior staff who did not do any fact-checking, but that does not 

negate the evidence that certain researchers and outside 

43 JA 3718–19.

44 JA 7994.

45 JA 2761.

46 JA 5308.

47 JA 7994.
13

counsel did fact-check.48 There is information in the record, 

for example, that fact-checking was “Megan [Thorsfeldt’s] 

job.”49

We have previously affirmed summary judgment 

dismissal of a defamation claim where defendants filed 

uncontradicted affidavits that “averred that they were 

convinced of the truthfulness” of their statements.50 Here, the 

Unions’ affidavits provide sufficient evidence that the affiants 

believed that all the material in the advertisements was truthful 

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

relies on raises a genuine issue of disputed fact sufficient to 

defeat the Unions’ motion for summary judgment. 

b. Reckless Disregard

Care One claims the District Court should have looked 

beyond the fact-checking procedures because fraud “may be 

effected by deceitful statements of half-truths or the 

concealment of material facts” even if the text is true.51 Care 

One then argues that we can find specific intent because the 

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

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

Appellants’ business.”52 

Specific intent “may be found from a material 

misstatement of fact made with reckless disregard for the 

truth.”53 But reckless disregard for the truth cannot be inferred 

merely from an intent to injure.54 Rather, it requires “sufficient 

evidence to permit the conclusion that the defendant in fact 

48 See JA 2642 (vetting was conducted on the research side 

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

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

explaining that “my researchers” were responsible for 

accuracy).

49 JA 5327.

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

Cir. 1980).

51 Appellant Br. at 43 (citing United States v. Ferriero, 866 

F.3d 107, 120 (3d Cir. 2017)). 52 Id. at 42.

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

(citation omitted).

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

657, 666 n.7 (1989).
14

entertained serious doubts as to the truth of his publication.”55 

Failure to investigate before publishing, without more, is not 

enough to establish reckless disregard.56 

Care One points to specific ads in claiming that the 

Unions cherrypicked facts and printed them without regard for

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

accuses the Unions of wording the ads so that they posed 

leading questions implying a negative answer and highlighting

negative information. According to Care One, the ads then 

relied upon a non-representative and misleading fact or statistic

for support. 

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

advertisements targeting its staffing. Those advertisements 

ask: “Are HealthBridge Nursing Homes Employing Enough 

Caregivers For Our Loved Ones?” The ads then assert that 

Care One provided below-average coverage by certified 

nursing assistants.57 The ads omit that Care One facilities 

provide above-average hours of coverage by higher-skilled 

registered nurses and licensed practical nurses.58 

The law of defamation generally recognizes that a 

question, “however embarrassing or unpleasant to its subject, 

is not accusation.”59 To premise liability on a question would 

“necessarily ensnare a substantial amount of speech that is 

essential to the marketplace of ideas.”60 Moreover, the 

questions’ implied answer is merely an unfalsifiable “opinion 

relating to matters of public concern.”61 Even if the Unions 

were using the questions to assert that Care One “understaff[s]” 

its facilities, that assertion would merely compare Care One’s 

staffing to a subjectively chosen standard. 

The same analysis applies to the other questions in the 

Unions’ advertisements: “Is HealthBridge Giving Your Loved 

55 Id. at 688 (citing St. Amant v. Thompson, 390 U.S. 727, 731 

(1968)).

56 Id. (citing St. Amant, 390 U.S. at 731, 733).

57 JA 2491.

58 JA 3348–49, 5642.

59 Abbas v. Foreign Pol’y Grp., LLC, 783 F.3d 1328, 1338 

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

60 Id. at 1339.

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

Cir. 2001) (citation omitted).
15

One Anti-Psychotic Drugs?,”62 “Overbilled at a HealthBridge 

Nursing Home?,”63 and “Who’s in Charge at HealthBridge 

Nursing Homes?”64 These are all questions rather than factual 

misrepresentations. They point out a presumed disparity 

between HealthBridge’s behavior and some subjective 

standard.

Care One suggests that the statistic in the staffing ad is 

fraudulent because it implies that Care One understaffs by 

relying on information pertaining to the only category of staff 

with below-average staffing. Moreover, Amanda Torres-Price, 

communications specialist for UHWE, conceded that the 

advertisements were “not pretending to be objective.”65 

Care One also points out that the antipsychotics 

advertisement suggesting its facilities excessively 

administered medications relies on a statistic referring to nonrepresentative groups of patients, for whom the antipsychotic 

drugs were often medically appropriate. The overbilling 

advertisements were based on one billing error at only one 

facility. And the “Who’s in Charge” advertisements implied 

there was an unhealthy amount of turnover but cited turnover 

rates roughly in line with a state average. Care One does not 

dispute the actual statistics, merely the implications and the 

insinuations arising from them. 

However, it is neither realistic nor legally required that 

either side of a labor dispute will present a balanced view in 

advertisements about the other side arising from the dispute. 

Moreover, speakers in the public square “have no legal 

obligation” to ensure that their statements are balanced.

66 For 

better or worse, the law does not hold either party to a labor 

dispute to a given level of objectivity.67 Thus, the Unions did 

62 JA 2501.

63 JA 2477.

64 JA 2494.

65 JA 5311.

66 Perk v. Reader’s Dig. Ass’n, Inc., 931 F.2d 408, 412 (6th 

Cir. 1991).

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

dispute to say whatever will inflict maximum damage on the 

other side with absolutely no regard for the accuracy of such 

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

processes in place to maintain a level of accuracy in its public 
16

not need to present a balanced view in their advertisements. 

For these reasons, we will affirm the District Court’s judgment 

as to the claims of mail and wire fraud. 

2. Extortion

Care One argues that the District Court erred in granting 

the Unions’ motion for summary judgment because, under 

RICO, the Unions committed state law extortion through both 

sabotage and fear of economic loss. For a violation of state 

extortion law to constitute a RICO predicate offense, the 

conduct must be “generically classified as extortionate.”68

Even if a predicate act is alleged, a union can be held liable 

only if “clear proof of actual participation in, or actual

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

actual knowledge thereof.”69 The generic definition of 

extortion is “obtaining something of value from another with . 

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

threats.”70 If an action can be generically classified as 

extortionate, then it must violate the state extortion statute to 

constitute a predicate act under RICO.

Care One relies on two purported types of extortionate 

acts to establish the requisite RICO predicates.71 It alleges that 

the Unions committed extortion under New Jersey, 

Massachusetts, and Connecticut law through (1) sabotage, and 

(2) fear of economic loss.

72 We will address each claim in turn.

a. Extortion through Sabotage

Care One contends that, based on the timing of the 

aforementioned acts of sabotage and the fact that NEHCEU 

members had access to both the facilities and patients involved, 

a reasonable jury could infer that union members committed 

sabotage and that the Unions either authorized these actions or 

ratified them.73 We agree. In doing so, we are fully aware that

pronouncements, so we do not accept the conclusion that

those processes were little more than a Potemkin Village 

intended only to provide cover so that the Unions could say 

whatever they thought would damage Care One. 

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

(2003).

69 29 U.S.C. § 106 (emphasis added). 70 Scheidler, 537 U.S. at 409. 

71 18 U.S.C. § 1961(1).

72 See Appellant Br. at 12–14. 73 Id. at 18. 
17

any such inference would need to meet the level of proof 

required under § 6 of the Norris-LaGuardia Act:

No officer or member of any association or 

organization, and no association or organization 

participating or interested in a labor dispute, 

shall be held responsible or liable in any court of 

the United States for the unlawful acts of 

individual officers, members, or agents, except 

upon clear proof of actual participation in, or 

actual authorization of, such acts, or of 

ratification of such acts after actual knowledge 

thereof.74

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

in § 6 means something different from corporate criminal 

responsibility for the acts of officers and agents in the course 

or scope of employment.”75 Rather, Congress intended to 

restrict 

liability in labor disputes . . . for unlawful acts of 

the officers or members [of unions], although 

[they] are acting within the scope of their general 

authority as such officers or members [of those 

unions] . . . except upon clear proof that the 

particular act charged, or acts generally of that 

type and quality, had been expressly authorized, 

or necessarily followed from a granted authority 

[by the union] or was subsequently ratified [by 

the union] after actual knowledge of its 

occurrence.76

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

members (even if those members are officers of the union) 

absent “clear proof of actual participation in, or actual

74 29 U.S.C. § 106.

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

406 (1947).

76 Id. at 406–07. The Court noted that the Senate Committee 

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

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

academic for our purposes and does not affect our analysis. 

For a thorough discussion of the complete legislative history 

of § 6 of the Norris-LaGuardia Act, see id. at 401–03.
18

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

actual knowledge thereof.”77 This standard requires “clear, 

unequivocal, and convincing proof” rather than “a bare 

preponderance.”78 District courts must apply the same 

standard at summary judgment that would apply at trial, asking 

“whether the evidence presented is such that a jury applying 

that evidentiary standard could reasonably find for either the 

plaintiff or the defendant.”79 Accordingly, because § 6 of 

Norris-LaGuardia Act requires “clear, unequivocal, and 

convincing proof” at trial, the same standard of proof would be 

required at the summary judgment level.80 

The Court explained in United Brotherhood of 

Carpenters and Joiners of America v. United States that the 

limitation set forth in § 6 was intended to 

relieve [labor unions] . . . from liability for 

damages or imputation of guilt for lawless acts 

done in labor disputes by some individual 

officers or members of the organization without 

clear proof that the organization or member, 

charged with responsibility for the offense, 

actually participated, gave prior authorization, or 

ratified such acts.81

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

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

developed and to correct the abuses that had resulted from the 

interjection of the federal judiciary into union-management 

disputes on the behalf of management.”82 Federal courts were 

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

prevent the organization and strengthening of labor unions; and 

in this industrial struggle the injunction became a potent 

77 29 U.S.C. § 106.

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

(1966). 

79 See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 

(1986). 80 See Gibbs, 383 U.S. at 737. 

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

82 Boys Mkts., Inc. v. Retail Clerks Union, Loc. 770, 398 U.S. 

235, 251 (1970).
19

weapon that was wielded against the activities of labor 

groups.”83

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

the Supreme Court noted that while the Labor Management 

Relations Act passed shortly after the decision in United 

Brotherhood of Carpenters and allowed a less stringent 

standard of proof, Congress did not repeal § 6.84 Rather, it “left 

it applicable to cases not arising under the new Act.”85 The 

Supreme Court took that opportunity to reiterate that the “fear 

that unions might be destroyed if they could be held liable for 

damage done by acts beyond their practical control” was the 

“driving force” behind § 6.86 It is therefore now beyond 

contention that common-law principles of agency and 

respondeat superior have no place in assessing liability of 

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

(such as the ones before us) not falling under the LMRA.

As this case arises under RICO, the applicable standard 

of proof is governed by § 6 of Norris-LaGuardia.

87 The 

District Court did indeed err in employing the less stringent 

LMRA standard.

88 In doing so, it cited Carbon Fuel Co. v. 

United Mine Workers of America, which explained that, under 

the LMRA, liability is limited to those who had “authorized, 

participated in, or ratified” the conduct.89 However, that error 

benefitted Care One because it afforded Care One a less 

stringent standard of proof for surviving summary judgment. 

Since the investigation resulted in no union members being 

identified as suspects, we will review whether a jury could 

83 Id. at 250.

84 Gibbs, 383 U.S. at 736.

85 Id. 86 Id. at 736–37.

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

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

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

Hobbs Act extortion prosecution).

88 Care One, 2019 WL 5541410, at *6 (“[D]efendants can 

only be held responsible for the actions of their members if 

the unions ratified or authorized the acts at issue.”) (citing 

United States v. White, 322 U.S. 694, 702 (1944); Carbon 

Fuel Co. v. United Mine Workers of Am., 444 U.S. 212, 216–

17 (1979)).

89 Carbon Fuel, 444 U.S. at 216.
20

reasonably find clear proof that the Unions either authorized or 

ratified the sabotage on this record. 

1. Authorization

As a threshold matter, Care One here argues that, 

because the acts committed on the eve of the strike at the three 

facilities targeted were similar to the sabotage allegedly 

connected with a strike at another employer’s NEHCEUunionized facility in 2001, we can connect those instances of 

sabotage and conclude that the Unions authorized the conduct. 

For support, Care One relies in part upon the “mass action” 

theory, and cites Eazor Express, Inc. v. International 

Brotherhood of Teamsters.90 Under the mass action theory, an 

otherwise inexplicable or improbable pattern of coordinated 

conduct by union members can be explained by assuming that 

the pattern resulted from authorization from the union.

91 The 

premise is that “large groups of [people] do not act collectively 

without leadership and that a functioning union must be held 

responsible for the mass action of its members.”92 

The mass action theory emerged to address situations in 

which thousands of members in different locations 

simultaneously act in concert.93 In contrast, here, there is no 

evidence that anything like that number of people engaged in

the acts of sabotage and vandalism, and Care One does not 

contend otherwise.94 Rather, Care One insists that it is 

applying the logic underlying the mass action theory and 

relying on common sense based on the timing and apparent 

coordination of the actions rather than the mass action theory 

per se.

95 However, Care One cites no cases that would justify 

expanding the logic of the mass action theory to the 

circumstances here, and we have found none. The number of 

actors here falls woefully short of the numbers needed to infer 

that the Unions had to have orchestrated these acts. The 

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

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

Carbon Fuel, 444 U.S. 212. 

91 Id. 

92 Id.

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

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

to 450,000 coal miners went on strike).

94 See Care One, 2019 WL 5541410, at *6.

95 Reply Br. at 6–7.
21

number is just too small for the presumption of centralized 

union coordination to apply under that theory. Moreover, even 

if we were to agree that the timing of the acts suggests unseen 

coordination, there is nothing to tie it to the Unions rather than

a handful of individual union members acting on their own. 

The contrary assumption on which Care One relies is far too 

tenuous to rise to the level of substantial proof that § 6 requires.

However, notwithstanding our rejection of Care One’s 

attempt to rely on the logic underlying the mass action theory, 

we nevertheless conclude that the totality of the circumstances 

here is enough to allow a reasonable jury to find sufficient 

proof that the Unions authorized such actions—even applying 

the heightened burden arising from § 6. As noted above, we 

must review the evidence in the light most favorable to Care 

One in reviewing the grant of summary judgment to the 

Unions. In doing so, we are cognizant of the fact that the 

Connecticut State’s Attorney’s investigation identified no 

suspects, let alone any union-member suspects.

96 And, we are 

of course aware that union membership alone cannot tie the 

actions of any members to the Unions, nor give rise to a 

presumption that the Unions authorized the acts of any of its 

members. However, the evidence is mutually reinforcing, each 

piece strengthening the inferences to be drawn from the other. 

Though no one piece of evidence is sufficient by itself, we must 

view the evidence in the aggregate. When we review this 

record in that context, it is clear that a reasonable jury could 

find there is enough to establish clear proof that members of 

the Unions committed the acts of vandalism and sabotage and 

that the Unions authorized that conduct. 

This evidence includes the Unions’ prior statements, the 

coordinated timing of the acts of sabotage, and subsequent 

actions that could be interpreted as obfuscation by the Unions.

It is undisputed that, the night before multiple union-organized 

strikes were scheduled to begin, acts of sabotage 

simultaneously occurred at three Care One facilities. A jury 

could conclude that was not just a serendipitous coincidence. 

We realize, of course, that this may have been the result of

coordination among various union members acting 

independently of the Unions. However, there is also evidence 

that, in advance of that sabotage, the Unions engaged in 

inflammatory rhetoric and encouraged labor organizers to 

96 JA 5779; JA 6840; JA 6843.
22

“become angry about their working conditions.”97 They also 

encouraged members to take on “greater and more militant 

levels of activity.”98 The president of one of the Unions told 

workers that “the law takes too long” and that the Unions

“could be destroyed by the time the law was able to stop [Care 

One’s] behavior.”99 That could certainly be interpreted as a 

call to engage in illegal acts rather than rely only upon the 

collective bargaining process. Thus, when viewed in the light 

most favorable to Care One, a jury could reasonably see those 

communications and the multiple, nearly simultaneous acts of 

sabotage right before a strike as clear proof of the Unions’ 

authorization of the sabotage. Indeed, a jury could conclude 

with the requisite quantum of proof under § 6 that the Unions 

had issued “a call to arms,” and the District Court’s ruling to 

the contrary must be vacated. 

2. Ratification

As explained above, liability can also be established if 

the Unions ratified the sabotage even if there is insufficient 

evidence that they authorized it. Although it is a very close 

call, we conclude that the undisputed facts viewed in the light 

most favorable to Care One could be viewed as clear proof that

the Unions ratified the sabotage. To establish ratification, Care 

One must prove “either that the union approved the violence 

which occurred, or that it participated actively or by knowing 

tolerance in further acts which were in themselves actionable 

under state law or intentionally drew upon the previous 

violence for their force.”100 

Care One argues that a reasonable jury could find the 

Unions ratified the sabotage because they did not attempt to 

assist and failed to cooperate with the police investigation of 

the sabotage. It points to an email from Deborah Chernoff, 

Communications Director of one of the Unions, in which 

Chernoff wrote that the Unions “sought to ‘mudd[y] the 

waters’ and ‘rebut, or at least confuse, the sabotage claims’” 

97 JA 5852, a facilitator teaching document with the goal of 

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

to an organizing agenda.”

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

organizer.

99 Appellant Br. at 22. 

100 Gibbs, 383 U.S. at 739.
23

during the investigation.101 This is a mischaracterization of 

that email. Chernoff is actually discussing a FOIA request that 

the Unions made to the Connecticut Department of Public 

Health. She described the information from the Department of 

Public Health in response to the Unions’ FOIAs—not the 

Unions’ efforts—as “mudd[ying] the waters.”102 She 

explained that this information “muddie[d] the waters and

support[ed] the contention of the workers that” patients may 

have removed their identifying bracelets themselves rather 

than saboteurs.103

Care One also points to the email from Chernoff to Chas 

Walker, Elected Organizer of UHWE, and union leaders. That

email appears to respond to Walker’s suggestion that the 

Unions launch their own investigation or actively seek to 

participate in the police investigation. Chernoff wrote that

“[the Unions] ha[ve] an obligation to [their] members even 

when they are totally in the wrong, if that proves to be the 

case.”104 Although that message by itself argues against 

ratification, the email also stated that it would be “a very bad 

idea” to participate in the police investigation.105 Although it 

is a very close call, we think it best that a jury assess the import 

and intent of the declaration that it would be a very bad idea to 

participate in the police investigation in context with any other 

evidence on this record, in assessing whether there is clear 

proof that the Unions ratified the acts of sabotage.

Similarly, a jury should assess the significance of Care 

One’s argument that union officials made “no concrete effort 

to disassociate themselves from the misconduct.”106 This 

argument relies on Yellow Bus Lines v. Drivers, Chauffeurs & 

Helpers Loc. Union 639 as support.107 In Yellow Bus Lines, 

there was evidence that the union’s business director, James 

Woodward, had engaged in several acts of vandalism including 

101 Appellant Br. at 25 (alteration in original) (citing JA 

5842). 102 JA 5842. 

103 JA 5842.

104 JA 5831 (emphasis added). 105 JA 5831. 

106 Appellant Br. at 26.

107 883 F.2d 132, 136 (D.C. Cir. 1989), on reh’g en banc, 913 

F.2d 948 (1990).
24

threatening to burn company buses.108 The president of the 

union received a letter describing “with particularity 

‘numerous incidents of threats, violence, property damage, and 

verbal abuse’ by Woodward and other strike participants.”109 

There was no evidence that the unions acted to investigate or 

discipline Woodward (or any other strikers). To the contrary, 

“Woodward remained on-site as the [union’s] man in 

charge.”110 The court held that evidence was sufficient to show 

that the union was liable for Woodward’s threatening and 

violent actions because the union’s inaction, after learning 

about his conduct, ratified it.

111 

The key difference here is that the later investigation 

yielded no suspects and implicated no union members.112 Still, 

it is theoretically possible that a jury could conclude that the 

lack of union-member suspects is the result of the Unions’ 

failure to investigate. We are thus persuaded that, as in Yellow 

Bus Lines, the jury could understand the Unions’ perceived 

“blind eye” as ratification of the conduct. 

We are aware that there is also evidence that the Unions 

outright condemned this behavior, rather than ratified it. For 

example, Chernoff wrote to fellow employees, “Of course 

anyone with a peasized brain would realize this isn’t a tactic 

we would undertake.”113 She also wrote that the allegations of 

vandalism were “very serious indeed” and that those 

responsible “should be held fully accountable.”114 Although 

this is an expression of disapproval, a jury could nevertheless

conclude that these statements were made only to provide 

“cover” and that any union members participating in the 

sabotage would have understood them to be no more than that. 

This is especially true given the union leader’s statements that 

it was a very bad idea to participate in the police investigation.

Care One also relies upon evidence that the Unions went 

as far as “authoring a baseless article suggesting that [Care 

108 Id. at 135.

109 Id. at 136.

110 Id.

111 Id.

112 See, e.g., JA 5779.

113 JA 6825.

114 JA 1068.
25

One] ‘staged the sabotage to make [NEHCEU] look bad.’”115 

The article, written by Chernoff, attributes the “staged the 

sabotage” quotation to union members who actually 

disbelieved the allegations of sabotage.116 Nevertheless, we 

cannot conclude that a jury should disregard the fact that the 

Unions published such an article when considering if Care One 

established that the Unions ratified the acts of sabotage. 

Accordingly, we hold that the District Court erred in 

determining that the totality of the evidence here is insufficient 

to support a claim that the Unions ratified the alleged acts of 

sabotage. 

b. Extortion Through Fear of Economic Loss

Care One also argues that the Unions are liable for 

extortion through fear of economic loss under RICO because 

they (1) “engaged in wrongful conduct by using threats of 

regulatory interference and criminal prosecution to seek 

leverage over” Care One, and (2) sought to “drive patients 

away from [Care One’s] facilities and to . . . harm . . . one of 

[Care One’s] owners” through “campaigns of negative 

publicity and harassment.”117 It is uncontested that the Unions 

authorized both its use of the regulatory and criminal processes

and the public speech and publicity campaign.118 Thus, the 

clear proof standard under § 6 of the Norris-LaGuardia Act is 

satisfied if such actions constitute extortion under state law and 

are generically classifiable as extortionate.

119

The generic definition of extortion is “obtaining 

something of value from another with his consent induced by 

the wrongful use of force, fear, or threats.”120 The District 

Court relied on United States v. Enmons121 to determine 

whether the Unions’ conduct was wrongful.122 Enmons 

created the “claim-of-right” defense—a carve-out from Hobbs 

115 Appellant Br. at 25–26 (second alteration in original) 

(citing JA 5825).

116 JA 5825.

117 Appellant Br. at 13–14. 

118 The Unions have never denied their role in these efforts. 

See generally Appellee Br. 

119 29 U.S.C. § 106. 120 Id. at 409–10 (emphasis added).

121 410 U.S. 396 (1973).

122 Care One, 2019 WL 5541410, at *7.
26

Act liability for a union pursuing legitimate labor objectives.123 

Enmons does not control here, however, since there, the

Supreme Court interpreted Hobbs Act extortion, not the 

generic definition of extortion, and it relied heavily on the 

Hobbs Act’s legislative history indicating a congressional 

intent to steer the statute’s sanctions away from legitimate 

labor activity.

124 Nevertheless, Enmons provides helpful 

guidance because extortion under the Hobbs Act and the 

generic definition both include a “wrongful use of fear” 

element.

125 Our subsequent application of Enmons outside the 

labor context also suggests that it provides appropriate 

guidance here.126

As mentioned above, in determining whether the 

“wrongful” element had been satisfied under the Hobbs Act, 

the Enmons Court formulated the “claim of right defense.”127

The claim of right defense hinges on a defendant’s lawful claim 

to the objective sought through the alleged extortionate acts.128

Though known as a “defense,” this “is not actually an 

‘affirmative defense’ in this context[, but] an interpretation of 

what ‘wrongful use of fear’ . . . means.”129 In other words, the 

wrongful use of fear element is not satisfied if a defendant had 

a lawful claim to the objective sought. As explained below, 

outside the Hobbs Act labor context, we have found that this 

lawful claim requires that the defendant have a right to both the 

123 Enmons, 410 U.S. at 400. 

124 Id. at 401–08. 125 Compare 18 U.S.C. § 1951(b)(2) (“obtaining of property 

from another, with his consent, induced by wrongful use of 

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

official right”), with Scheidler, 537 U.S. at 410 (“obtaining 

something of value from another with his consent induced by 

the wrongful use of force, fear, or threats”). 

126 See, e.g., Brokerage Concepts, Inc. v. U.S. Healthcare, 

Inc., 140 F.3d 494, 523 (3d Cir. 1998); United States v. 

Tobin, 155 F.3d 636, 640 (3d Cir. 1998). 127 Enmons, 410 U.S. at 400.

128 Id. See also United States v. Cerilli, 603 F.2d 415, 419 

(3d Cir. 1979).

129 United Broth. of Carpenters and Joiners of Am. v. Bldg. 

and Const. Trades Dep’t, 770 F.3d 834, 844 (9th Cir. 2014)

(citing Brokerage Concepts, Inc., 140 F.3d at 523). 
27

objective sought and the means used in pursuing such 

objective. 

We have applied this claim of right defense outside the 

labor context for situations “involv[ing] solely the allegation 

of the use of economic fear in a transaction between two 

private parties.”130 First, in United States v. Cerilli, we found 

that “although the solicitation of political contributions is not 

inherently ‘wrongful,’” it was wrongful for defendants to 

condition the leasing of government equipment on 

contributions because they did not have a “‘lawful claim’ to 

those contributions.”131 Similarly, in Brokerage Concepts, Inc. 

v. U.S. Healthcare, Inc., we found that an extortion claim could 

survive only if the plaintiff had a right to pursue its business 

interest free of the fear that it would be excluded from a 

healthcare provider network.132 We concluded that no such 

right existed because Pennsylvania did not require all 

interested providers be included in the network.133 The 

defendant had thus acted under a “claim of right” because it 

“had the right to exchange the valuable consideration of 

inclusion in its network in return for consideration from” the 

plaintiff.134 In United States v. Tobin, we later interpreted 

Brokerage Concepts as holding that “the claim-of-right 

defense applies to non-labor cases, so long as the threats 

involved are purely economic.”135

Our inquiry here is aided by contrasting Brokerage 

Concepts with Tobin.

136 In Tobin, we concluded that the claim

of right defense “plainly” did not apply where a defendant 

“threatened unrelated lawsuits alleging sexual harassment” 

instead of “legal action to enforce the oral contract that she 

130 Brokerage Concepts, 140 F.3d at 503. See also Cerilli, 

603 F.2d at 419 (finding that the claim of right defense did 

not apply where a government’s leasing of equipment was 

conditioned on political payments).

131 Cerilli, 603 F.2d at 419. 

132 Brokerage Concepts, 140 F.3d at 503.

133 Id. 

134 Id. at 526. Cf. Cerilli, 603 F.2d at 419 (finding that the 

defendant had not acted under a claim of right because it did 

not “ha[ve] a ‘lawful claim’ to th[e] contributions” sought). 

135 155 F.3d at 640.

136 Id. 
28

claimed existed.”137 In doing so, we explained that the 

plaintiffs “had a preexisting right to be free from the threats 

invoked[, which] . . . went far beyond the hard bargaining 

tactics utilized in Brokerage Concepts.”138 We also 

distinguished the acts in Tobin from those in Viacom 

International, Inc. v. Icahn in which “a corporate raider . . . 

amassed Viacom stock and threatened a corporate takeover 

unless the company purchased his stock at a premium over the 

market price.”139 The Viacom court held that the claim of right 

defense applied because the plaintiff “did not have a 

preexisting right to be free from the threat of a takeover.”140

Applying those cases here, we ask whether Care One 

had the right to pursue its business interests free of the fear that 

the Unions would (1) use the regulatory and criminal 

processes, and/or (2) campaign using negative advertising. 

More specifically, drawing from United States v. Jackson,

141

we ask whether there is a reasonably close relationship—a 

nexus—between the alleged extortionate acts and the objective 

sought. In Jackson, the Court of Appeals for the Second 

Circuit concluded that “where a threat of harm to a person’s 

reputation seeks money or property to which the threatener 

does not have, and cannot reasonably believe she has, a claim 

of right, or where the threat has no nexus to a plausible claim 

of right, the threat is inherently wrongful.”142 This test tracks 

137 Id. 

138 Id. 

139 Id. (citing 747 F. Supp. 205 (S.D.N.Y. 1990), aff’d on 

other grounds, 946 F.2d 998 (2d Cir. 1991)).

140 Id. (citing Viacom, 747 F. Supp. at 213). 

141 180 F.3d 55 (2d Cir. 1999).

142 Id. at 71. 
29

Enmons,

143 Cerilli,144 Brokerage Concepts,145 Tobin,146 and 

Viacom.

147

However, we must also consider any potential chilling 

effect or further risk of “erosion of the associative rights or at 

least the full exercise of such rights.”148 This, of course, is not 

a new concern in terms of civil RICO generally.149 But we 

143 In Enmons, violence during a lawful strike had a 

reasonably close relationship to the union’s demand for 

higher wages and was not considered wrongful. See 410 U.S. 

at 411.

144 In Cerilli, leasing of government equipment did not have a 

reasonably close relationship to conditional political 

payments and was considered wrongful. See 603 F.2d at 419. 

145 In Brokerage Concepts, excluding from the provider 

network had a reasonably close relationship to Brokerage 

Concepts’s demands to have the pharmacy use its subsidiary 

as its third-party administrator and was not considered 

wrongful. See 140 F.3d at 523. 

146 In Tobin, threatening the plaintiff with unrelated lawsuits 

regarding sexual harassment was explicitly described as 

unrelated (i.e., no reasonably close relationship) to Tobin’s 

demand to enforce the oral contract and was considered 

wrongful. 155 F.3d at 640–41 (“[S]he threatened unrelated 

lawsuits . . . .”). 

147 In Viacom, threatening a corporate takeover was directly 

related to a corporate raider’s demand that the company

purchase his stock at a premium and was not considered 

wrongful. See 747 F. Supp. at 213–14.

148 David B. Sentelle, Civil RICO: The Judges’ Perspective, 

and Some Notes on Practice for North Carolina Lawyers, 12 

CAMPBELL L. REV. 145, 165 (1990). 

149 See Marvin L. Astrada, Examining the Present SecurityLiberty Nexus: Civil RICO—Remedy to Procure Security or 

Threat to Civil Liberty?, 36 QUINNIPIAC L. REV. 357, 377–81 

(2018) (critiquing civil RICO’s potential encroachment on 

First Amendment freedoms of speech and assembly); 

Sentelle, supra note 162, at 161 (“RICO devours traditional 

and basic concepts of American jurisprudence, including . . . 

First Amendment rights of free speech and association [and] 

labor law . . . .”). See also Yellow Bus Lines, Inc., 883 F.2d at 

145 (Edwards, J., concurring) (“I have nagging doubts about 
30

must be particularly mindful given that this case involves labor 

unions—entities that have historically been granted special 

protections because they sometimes employ tactics that often 

inflict economic loss on employers in order to advance the 

legitimate interests of the union’s members. In fact, a strike is 

the quintessential example of an action that is taken to instill 

fear of economic loss and possibly even inflict economic harm 

on an employer who might otherwise not agree to a union’s 

demands. Thus, we must be careful not to impose liability for 

either protected commercial speech, peaceful off-site 

picketing, or threats of economic harm related to a labor 

dispute such as a strike or the threat of a strike. 

Viewing the facts in the light most favorable to Care 

One, drawing all reasonable inferences in Care One’s favor, 

and being mindful of the need for unions to sometimes resort 

to threat of economic harm, there remains a question of fact as 

to whether the Unions committed extortion through fear of 

economic loss. As stated above, our inquiry first asks whether 

the Unions’ use of the regulatory and criminal processes and 

campaigns of negative advertising was wrongful. Again, to do 

so we must assess whether Care One had the right to pursue its 

business interests free of the fear that the Unions would (1) use 

the regulatory and criminal processes, and (2) campaign using 

negative advertising. Clearly, Care One has no categorical 

right to pursue its business interests free of the fear that the 

Unions could use the regulatory and criminal processes as 

these processes can hold individuals and entities accountable 

for violating laws and regulations.150 Additionally, Care One 

did not have a limitless right to pursue its business interests 

free of the fear that the Unions could use negative advertising 

campaigns. Not only do such campaigns implicate protected 

speech, but they are also a frequent component of labor strife 

including strikes.151 Indeed, pickets circling with signs 

disparaging an employer’s working environment or allegedly 

our holding that ‘the strike and organizational effort were 

“affairs” of Yellow Bus,’ and that, consequently, plaintiff 

might be able to state a cause of action under section 1962(c) 

of RICO. This result seems strangely at odds with certain 

fundamental precepts of labor law and collective 

bargaining.”). 

150 See 29 U.S.C. § 158(a)(4). 

151 See id. §§ 157, 158(a)(1). 
31

poor wages is a common sight outside of businesses that have 

been hit with a strike. Because, generally speaking, Care One 

did not have a right to pursue its business interests free of these 

fears, the Unions had a right to pursue favorable terms in a 

collective bargaining agreement by employing such tactics, but 

only if there is a nexus between this objective and the means 

used. 

Turning first to the Unions’ use of regulatory and 

criminal processes, it is unclear whether the Unions were using 

these means to pursue the aforementioned legitimate 

objectives. There is, of course, nothing wrong with the Unions 

exercising their right to report violations of the law through 

either regulatory or criminal processes. But if the Unions 

implicitly intended to use these channels as a means to pursue 

their objective, then liability would turn on whether there is a 

nexus between using these processes and pursuing favorable 

terms in a CBA. The record, however, is not conclusive on that 

issue. Therefore, this is a question of fact that a jury should 

decide, and summary judgment in favor of the Unions was 

inappropriate.

152

Turning next to the Unions’ campaigns, Care One 

points to the Unions’ advertising campaign and the campaign 

directed at Care One’s owner and CEO, Daniel Straus as 

campaigns “of negative publicity and harassment” constituting 

extortion. Considering first the advertising campaign, the 

152 For example, the Unions called Senator Blumenthal 

without notice to Care One, which points towards a finding 

that this was not a means to pursue favorable terms in a CBA. 

See Care One, 2019 WL 5541410, at *8 (citing D.E. 402-4 ¶¶ 

61–64). But they had urged him to carbon copy the CEO of 

Care One on a relevant email, which was arguably for the 

purpose of alerting Care One that they intended to pursue 

regulatory processes if Care One did not comply with union 

demands. JA 5613. There is also no evidence that the 

Unions’ pursuit of criminal charges against Care One implied 

“that the Unions would continue their coercive pressure 

unless Appellants acceded to the Unions’ demands.” 

Appellant Br. at 31–32. Without an explicit objective or 

something akin to a “wink and a nod,” whether this was “part 

of [a] broader campaign to exert pressure on [Care One]” is 

unclear and would thus need to be decided by a jury. Id. at 33 

n.7.
32

relationship of that campaign to a legitimate labor objective is 

clear. The Unions argue that they never made a threat to force 

Plaintiffs to comply with any demand, and the record as to the 

advertising campaign is not to the contrary.153 They claim that 

the objective of this campaign was to pursue higher wages and 

better benefits for its members,

154 and again, Care One has not 

presented evidence to the contrary.

Care One also points to the campaign directed at Straus. 

This included “targeting [his] unrelated business ventures and 

philanthropic activities,” “block[ing] the development of a 

condominium project in which Mr. Straus had invested,” 

“purchasing radio advertisements in Puerto Rico to disparage 

two unrelated businesses Mr. Straus owned there,” and 

“organizing disruptive protests around NYU School of Law, 

where Mr. Straus was a trustee and benefactor.”155 As the 

District Court explained, these activities likely drew “public 

attention to Straus’ role in Plaintiffs’ business and labor 

practices.”156 Care One’s only evidence to the contrary is that 

“the Unions could not [have] hope[d] to derive any legitimate 

benefit from these pressure tactics” as “the Unions did not 

represent employees in connection with any of the unrelated 

ventures and philanthropic activities that they targeted.”157 

This ignores the clear nexus between pressure tactics that drew 

attention to the owner of Care One’s business and labor 

practices and the Unions’ objective of receiving higher wages 

and better benefits from Care One. The Unions could logically 

assume that pressuring Straus in this manner would increase 

the likelihood that he would cause Care One to capitulate to the 

Unions’ demands. Accordingly, as is true with the advertising 

campaign, we cannot find that tactic wrongful as a matter of 

law under the generic definition of extortion. Therefore, 

summary judgment in favor of the Unions was appropriate on 

these claims.

IV. Conclusion

For the reasons set forth above, we will vacate in part 

and affirm in part and remand to the District Court for further 

proceedings consistent with this opinion. 

153 Appellee Br. at 29. 

154 Id. at 8. 

155 Appellant Br. at 34.

156 Care One, 2019 WL 5541410, at *8. 

157 Appellant Br. at 35. 
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