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D ock e t 96-1891,96-1922,96-1923,96-1892,97-1013,97-1014

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. e du/thir dc ir c uit_1998/66Volume 2 of 2

Filed April 2, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NOS. 96-1891, 96-1892, 96-1922, 96-1923 97-1013, and 97-1014

BROKERAGE CONCEPTS, INC.

v.

U.S. HEALTHCARE, INC.; CORPORATE HEALTH ADMINISTRATORS, INC.; UNITED STATES HEALTH CARE SYSTEMS OF PENNSYLVANIA, INC., d/b/a THE HEALTH
MAINTENANCE ORGANIZATION OF PENNSYLVANIA; RICHARD WOLFSON; SCOTT MURPHY;

WILLIAM BROWNSTEIN

Richard Wolfson, Scott Murphy and William Brownstei n, Appellants in No. 96-1891

U.S. Healthcare, Inc.; United States Health Care Sy stems of Pennsylvania, Inc., d/b/a The Health Maintenance Organization of Pennsylvania and Corporate Health Administrators, Inc. Appellants in No. 96-1892

U.S. Healthcare, Inc.; Corporate Health Administrat ors, Inc.; United States Health Care Systems of Pennsylvania, Inc., d/b/a The Health Maintenance Organization of Pennsylvania; Richard Wolfson; Scott Murphy; Willia m Brownstein, Appellants in No. 96-1922

Brokerage Concepts, Inc., Appellant in No. 96-1923U.S. Healthcare, Inc.; United States Health Care Sy stems of

Pennsylvania, Inc., d/b/a The Health Maintenance Organization of Pennsylvania and Corporate Health Administrators, Inc., Appellants in No. 97-1013

Richard Wolfson; Scott Murphy; and William Brownste in, Appellants in No. 97-1014

On Appeal From the United States District Court For the Eastern District of Pennsylvania (D.C. Civ. No. 95-cv-01698)

Argued: July 22, 1997

Before: BECKER, MANSMANN, and ROSENN, Circuit Judges.

(Filed April 2, 1998)

a. The Definition of "wrongful".

In Enmons, the Court faced the question whether the use of violence in a labor strike to obtain higher wage s and other benefits was extortion within the meaning of the Hobbs Act. The Court reviewed the wording of the Ac t and its legislative history and determined that such co nduct was not extortion. In reaching its decision, the Co urt interpreted the word wrongful, which is not defined in the Act, as follows:

The term "wrongful," which on the face of th e statute
modifies the use of each of the enumerated m eans of obtaining property -- actual or threatened f orce, violence, or fear -- would be superfluous if it only
served to describe the means used. For it wo uld be redundant to speak of "wrongful violence" or "wrongful force" since, as the government acknowledges , any violence or force to obtain property is "wro ngful." Rather, "wrongful" has meaning in the Act on ly if it limits the statute's coverage to those insta nces where the obtaining of the property would itself b e "wrongful"

48because the alleged extortionist has no lawf ul claim to

that property.

Id. at 399-400 (emphasis added).

The ability to defend against an extortion charge b ased on a lawful claim to the property obtained has been dubbed the "claim of right" defense to extortion. See Unit ed States v. Agnes, 753 F.2d 293, 298 (3d Cir. 1985). Since E nmons dealt with the use of force to obtain property, and concluded that it was not extortion, read broadly, Enmons could stand for the principle that in all extortion cases, even "inherently" wrongful actions such as the use or threatened use of force or violence, do not constit ute
extortion where the defendant has a lawful claim to the property obtained. This broad application of Enmons , i.e., outside of the labor context, has, however, been un iformly rejected by the courts of appeals out of a fear tha t it would "effectively repeal the Hobbs Act." See United Stat es v. Cerilli, 603 F.2d 415, 419 (3d Cir. 1979).

The effort to limit the potential impact of Enmons has led
to a line of cases wherein this Court and others ha ve refused to extend the claim of right defense to def endants accused of using actual or threatened force or viol ence to obtain property outside of the labor context. For e xample, in United States v. Agnes, supra, the defendant was convicted of extortion for using threats of force a nd actual violence in seeking property which was arguably his under state law. On appeal, he argued that the district c ourt erred in refusing to allow him to assert a claim of right defense and in failing to properly instruct the jury that i t is not wrongful to obtain property to which one has a lega l right.

See 753 F.2d at 297. We noted that defendant's cont entions were predicated on Enmons and held that, contrary t o defendant's suggestion, Enmons did not create a gen eral claim of right defense in all cases involving the t hreatened
or actual use of force or violence. Instead we inte rpreted Enmons to "create a claim of right defense only in

. . . situations [such as those present in Enmons] in whi ch the use of force is expressly identified by Congress as being outside the purview of the Hobbs Act." Id. at 299 ( emphasis added). Other cases, noted in the margin, have simi larly

49limited the reach of the claim of right defense in cases

involving the threatened or actual use of force or violence.21

The present case does not fall within this line of cases limiting Enmons since it solely involves the accusa tion of the wrongful use of the fear of economic loss. Unli ke the use or threatened use of force or violence, the use of economic fear in business negotiations between priv ate parties is not "inherently" wrongful. See Sturm, 87 0 F.2d at 773 (citation omitted); United States v. Clemente, 640 F.2d at 1077; Hall Am. Ctr. Assoc. Ltd. Partnership v. D ick, 726 F. Supp. 1083, 1095 (E.D. Mich. 1989). Indeed, the fear of economic loss is a driving force of our economy tha t plays an important role in many legitimate business trans actions. This economic reality leads us to conclude that the reach of the Hobbs Act is limited in cases, such as this one , which
involve the use of economic fear in a transaction b etween two private parties. The limitation we apply is tha t set forth in Enmons: that a defendant is not guilty of extort ion if he has a lawful claim to the property obtained.

We find support for our conclusion in the law of ot her circuits. The Second Circuit recognized the issues and concerns affecting this case in United States v. Ca po, 791 F.2d 1054, 1062 (2d Cir. 1986), vacated in part, on other grounds, 817 F.2d 947 (2d Cir. 1987) (in banc), whe n it

stated that:

___________________________________________________ ______________

21. See United States v. Zappola, 677 F.2d 264, 269 , 70 (2d Cir. 1982) (Enmons inapplicable where businessmen beat and thr eatened victim to coerce payment of alleged debt); United States v. P orcaro, 648 F.2d 753, 759-60 (1st. Cir. 1981) (claim of right to property irrelevant where force
or threats are used in resolution of contractual di spute); United States

v. Kattar, 840 F.2d 118, 123 n.2 (1st Cir. 1988) ("Exc ept in certain labor contexts . . . using threats of violence to induce the payment of money is unlawful, regardless of the extortionist's possi ble legal right to the funds at issue."); United States v. Sturm, 870 F.2d 769, 772-73 (1st Cir. 1989) (defendants "claim of right" to property obta ined from victim is proper defense outside of labor context only if def endant did not use "inherently wrongful" means such as force or violen ce to obtain the property); United States v. Warledo, 557 F.2d 721, 729-30 (10th Cir. 1977) (Enmons inapplicable to Indian tribe's threat s and violence to pursue allegedly valid claim against railroad); Uni ted States v. Cohen, 738 F.2d 287, 289 (8th Cir. 1984).

50We recognize, of course, that fear of econom ic loss

plays a role in many business transactions t hat are entirely legitimate; awareness of that fear and use of it as leverage in bargaining, in which each sid e offers the other property, services, or rights it legit imately owns or controls, is not made unlawful by the Hob bs Act. What the Act reaches is not mere hard bargai ning but the exploitation of the fear of economic los s in order to obtain property to which the exploiter is no t entitled.

(emphasis added).

See also United States v. Clemente, 640 F.2d at 107 6-78 (use of fear of economic loss is wrongful when empl oyed to achieve the wrongful purpose of obtaining property to which one is not entitled).

The First Circuit has explicitly extended the claim of right defense to cases involving solely the fear of econo mic harm. See Sturm, 870 F.2d at 773 ("[F]or purposes of the Hobbs Act, the use of legitimate economic threats to obta in property is wrongful only if the defendant has no c laim of right to that property."). The position of the Firs t and Second Circuits is mirrored in the federal pattern jury
instructions for the Hobbs Act. In those instructio ns "wrongful" is defined as "mean[ing] that the defend ant had no lawful claim or right to the money or the proper ty (he)(she) sought or attempted to obtain", and distr ict courts are directed that this definition "should be given only in cases involving a fear of economic loss or in trial s concerning the use of violence by union leadership to secure higher wages for the membership as opposed t o securing money for themselves." E. Devitt et al., F ederal Jury Practice and Instructions, Criminal, S 45.08 & notes (4th ed. 1990). We believe that the position of the First and Second Circuits is sensible, and adopt it here.

b. Lawful Versus Unlawful Claims to Property

Our conclusion that the defendants are not guilty o f extortion if they had a lawful claim to the propert y obtained from Gary's, while focusing our inquiry, does not r esolve the issue before us since the line separating lawfu l from unlawful claims to property obtained in business

51negotiations is by no means self evident. Once agai n, we

start with Enmons which, although addressing extort ion through force or violence, provides direction as to the distinction between lawful and unlawful claims to p roperty.

The Court in Enmons, having held that a Hobbs Act conviction could not be predicated on violence rela ted to union activity that was aimed at obtaining property to which the alleged extortionist had a lawful claim, found that the defendants, union members and officials, h ad a lawful claim to the property -- in the form of wage s and other employment benefits -- that they obtained fro m the employer. The Court found that where violence is em ployed "to achieve legitimate union objectives, such as hi gher wages, in return for genuine services which the emp loyer seeks . . . there has been no `wrongful' taking of the employer's property; he has paid for the services b argained for, and the workers receive the wages to which the y are entitled in compensation for their services." 410 U .S. at 400. This scenario was distinguished from cases whe re "union officials threatened force or violence again st an employer in order to obtain personal payoffs, and w here unions used the proscribed means to exact `wage' pa yments in return for `imposed, unwanted, superfluous and f ictitious services' of workers." Id. In such cases, the union officials would not have a lawful claim to the property obtai ned, and
thus the conduct would fall within the reach of the Hobbs

Act.

We find particularly illuminating the application o f Enmons' basic teaching by the District Court for th e Southern District of New York in Viacom Int'l v. Ic ahn, 747 F. Supp. 205 (S.D.N.Y. 1990), aff'd on other ground s, 946 F.2d 998 (2d Cir. 1991), a case involving the alleg ation of extortion through the wrongful use of the fear of e conomic loss. In Viacom, the defendants were accused of pur chasing substantial stock in the plaintiff company (Viacom) and then coercing the plaintiff to buy its stock back f or cash, stock warrants, and free advertising -- all alleged ly under a threat of a corporate takeover. In return for the requested "greenmail," the defendants agreed not to buy the p laintiff's stock (or otherwise seek control of the plaintiff) for a period of eleven years. See id. at 207-09. Following this

52transaction, the plaintiff brought a civil RICO sui t alleging,

inter alia, that defendants had violated the Hobbs Act by obtaining above-market consideration for their shar es from plaintiff with plaintiff's consent, with such conse nt induced through the wrongful use of economic fear. See id. at 210. On defendants' motion for summary judgment, the cou rt dismissed as a matter of law the allegation that th e challenged practice constituted extortion. See id. at 213.

The court recognized that it was faced with a case in which the alleged extortion victim received somethi ng of value -- an eleven-year standstill covenant, 3,498, 200 shares of common stock, and, thereby, relief from t he threat of a corporate takeover. It then surveyed ex isting case law in which the victim received something of value in exchange for his property, and found that in these
circumstances "some acts constitute extortion and o thers are found to be `hard bargaining.' " Id. at 212-13. The court drew the following distinction between the two:

In a "hard bargaining" scenario the alleged victim has no pre-existing right to pursue his business interests free of the fear he is quelling by receiving value in return for transferring property to the defe ndant, but in an extortion scenario the alleged victim has a pre- existing entitlement to pursue his business interests free of the fear he is quelling by receiving value in return for transferring property to the defe ndant.

Id. at 213.

Applying this framework, the court used as examples of extortion, the "personal payoff cases" addressed in Enmons.
In those cases the defendants "had no lawful claim to the property they received from the victims in exchange for providing the victims with influence and goodwill w hich quelled the victims fears of harm to their economic interests." Id. While the victim received something of value in return for this payment, "the victim [was] entit led by law to be free of the fear he [was] quelling by giving property to the defendant . . . [and thus] the `something of va lue' the victim receive[d] [was], as a matter of law, as `im posed, unwanted, superfluous and fictitious' as the hiring of a second worker to do the job that another worker is already doing." Id. (citations omitted).

53The court then focused on those cases in which the

victim receives something of value yet the conduct is found to be hard bargaining. It drew examples of this con duct from the Second Circuit's opinion in United States v. Capo, 791 F.2d at 1062-63, which stated that:

[a]lthough a job applicant who has long been out of work may have a fear of not obtaining employ ment that
would constitute a fear of economic loss wit hin the meaning of the Act, the Act would not ordina rily reach, for example, the efforts of a prospective em ployer to bargain down the level of compensation to be paid the applicant. Nor would it reach the normal act ivities of an employment agency in dealing with the app licant even if, for example the agency required pay ment from its applicants of some sort of filing fee, s ervice charge, or contingent fee.

In these cases, the defendant is legally entitled t o the property obtained from the victim since he has prov ided real value in exchange for that property, and the v ictim has no preexisting right to be free of the fear he is q uelling in return for his payment to the defendant.

A further example of hard bargaining was provided b y the facts of Viacom itself. Since the plaintiff had rec eived something of value in return for the property trans ferred to the defendants, the court looked to whether the law entitled "Viacom to a right to pursue its business interests free of the problems and fears caused by the threat of a ta keover by defendants." 747 F. Supp. at 213. The court foun d that the law granted no such entitlement and thus that

any intentional exploitation of fear by defe ndants was only part of "hard bargaining" in a deal whi ch resulted in plaintiff receiving a benefit to which it was not otherwise entitled by law. Accordingly, defe ndants did not obtain property from plaintiff to which they had no
lawful claim and therefore did not commit ex tortion.

Id. at 213-14.

In the present case, the property that U.S. Healthc are obtained from Gary's was the payments made by Gary' s to CHA pursuant to its TPA contract. In return for thi s

54property, U.S. Healthcare gave Gary's access to its provider

network -- something that is of considerable value to Gary's. Thus, like the court in Viacom, we deal wit h a very narrow subset of the potential universe of extortio n cases: one involving solely the accusation of the wrongful use of economic fear where two private parties have engage d in a mutually beneficial exchange of property. While we believe that the fact-bound nature of this type of case wil l not supply a generalized precept, we are convinced by t he logic of Viacom that BCI's extortion claim can only survi ve if Gary's had a right to pursue its business interests free of the fear that it would be excluded from the provide r network. Albeit with misgivings, we find that it ha d no such right.

The chief obstacle to BCI's claim is the fact that Pennsylvania, unlike many other states, has not ado pted an "Any Willing Provider" law which compels HMOs to allow all interested and minimally qualified providers in to their networks. If such a law were in force, then Gary's would have had a legal entitlement to be a member of the provider
network and thus to be free of the fear that it wou ld be
excluded from that network if it did not switch TPA providers.22 However, in the absence of such a law, Gary's has no right of access to the U.S. Healthcare netwo rk and thus U.S. Healthcare could have denied Gary's acces s to its network for any reason, or for no reason at all. Un der these conditions, U.S. Healthcare had the right to exchan ge the
valuable consideration of inclusion in its network in return for consideration from Gary's in the form of its TP A contract. We thus conclude that this case provides an example of hard bargaining rather than extortion.23

___________________________________________________ ______________

22. Indeed, if Pennsylvania had such a law not only might the outcome of this suit, at least as it pertains to the RICO c ounts, be different,

but it is likely that the underlying facts would never have occurred. Those facts, which demonstrate how heavy-handed tactics c an be effectively applied by a large corporation (U.S. Healthcare) ag ainst a small firm (Gary's) in this context, might suggest to the Penn sylvania General Assembly that it is time to enact an Any Willing Pr ovider law in Pennsylvania.

23. This is also not a case where U.S. Healthcare e xerted monopoly power in the market for pharmaceutical customers. U nder such circumstances, the antitrust laws might well confer on Gary's the legal right to be free of the economic coercion arising f rom U.S. Healthcare's monopoly. However, we are not presented with such a case and thus do not opine on the potential success of such a theory

.

55BCI raises several arguments in opposition to this

conclusion. First, BCI submits that even if Gary's had no right to membership in the provider network per se, it did have a right to compete for membership in that netw ork free from coercion. BCI attempts to ground this rig ht in our holding in Addonizio, supra. In that case, we consi dered extortion charges based on public corruption in whi ch government officials demanded kickbacks from contra ctors, suppliers and engineers engaged in public works pro jects for the city of Newark, New Jersey. In upholding defendants' extortion convictions, we determined th at, while the contractors have no right to obtain a contract with the city, they "have a right to expect that when they i ncur time and expense to bid on public projects, they will be awarded
contracts when their bids are lowest . . . . The Ci ty of Newark had systematically destroyed this right." 45 1 F.2d at 73 (emphasis added).

Our holding in Addonizio is distinguishable since i t is based on the right of private citizens to compete f or government contracts on a level playing field. Such a right is solidly embedded in public policy. See also Unit ed States v. Collins, 78 F.3d 1021, 1030 (6th Cir.), cert. de nied, ___ U.S.___, 117 S. Ct. 189 (1996) (upholding Hobbs Act conviction of husband of Kentucky Governor charged with soliciting political contributions in exchange for right to contend for state contracts since "[payors] acted o ut of fear that without payments they could lose the opportuni ty to compete for government contracts on a level playing field, an opportunity to which they were legally entitled. "). In this case, involving solely private parties, and in the absence of an Any Willing Provider Law, Gary's had no such rig ht to a level playing field.

c. Evidence of Other Unlawful Objectives

BCI also argues that even if U.S. Healthcare did no t have the unlawful objective of obtaining property to whi ch it had no lawful claim, it had three other unlawful object ives that
convert the economic coercion at issue here into ex tortion.24

___________________________________________________ ______________

24. Since we conclude that each of these allegation s of wrongful objectives lacks support, we need not decide whethe r proof that defendants' possessed one of these objectives would be sufficient to

convert U.S. Healthcare's use of the fear of econom ic loss into extortion where U.S. Healthcare had a lawful right to the pro perty obtained.

56They are (1) violation of Pennsylvania's insurance fraud

statute; (2) violation of New Jersey's Any Willing Provider law; and (3) violation of U.S. Healthcare's own in ternal procedures. Of these three objectives, the jury was only instructed as to BCI's theory that the defendants u se of economic fear was wrongful because it had the unlaw ful objective of violating the Pennsylvania Insurance F raud statute, and thus we address only that theory in th e text.25 The other two theories, on which the jury was not instructed, are rejected summarily in the margin.26

The Pennsylvania insurance fraud statute provides t hat:

a health care provider may not compensate or give anything of value to a person to recommend o r secure the provider's service to or employment by a patient or as a reward for having made a recommendation resulting in the provider's service to or em ployment by a patient.

___________________________________________________ ______________

25. The district court also instructed the jury tha t one such unlawful objective would be "a violation of the Federal anti trust laws." In light

of the fact that we vacate the antitrust verdict, this instruction alone might compel us to vacate the jury finding with respect t o extortion and, indeed, to the whole of the RICO count. However, si nce we find that both claims fall of their own weight, we need not rely o n this flawed jury instruction as grounds for reversal, and thus do no t address BCI's contention that U.S. Healthcare waived any objectio n to the instruction.

26. BCI's claim that U.S. Healthcare had the unlawf ul objective of violating the New Jersey Any Willing Provider Law, see N.J.S. 26:2J-4.7(a)(2), fails because BCI has RICO standin g only to recover for the loss of its TPA contract with Gary's, all of wh ose pharmacies are located in Pennsylvania.

BCI's argument that U.S. Healthcare had the unlawfu l objective of violating its own internal regulations is founded o n BCI's assertion that U.S. Healthcare's internal regulations required it to admit into its network all pharmacies whose applications met U.S. Healthcare's admission criteria. BCI's brief, however, does not clearly specify the

exact regulation(s) in which such a requirement is contai ned, and it is not at all clear that such regulations exist. At all event s, BCI's claim must
fail since, even if U.S. Healthcare's regulations did co ntain such a requirement, we see no reason why violation of an i nternal regulation regarding provider admission would be unlawful.

5718 Pa. Cons. Stat. Ann. S 4117(b)(2) (Purdon 1997). We

disagree with BCI that the jury could reasonably ha ve concluded that U.S. Healthcare's conduct violated t his statute. By its terms the statute forbids providers from buying recommendations or referrals of patients, an d is thus properly characterized as an "anti-kickback" s tatute directed at providers rather than insurers, such as HMOs. Even if we ignored the statute's clear focus, BCI's
contention that U.S. Healthcare violated the statut e by referring patients to pharmacies that agreed to giv e them a benefit fails for two reasons. First, the record do es not support an inference that U.S. Healthcare recommend ed that its members patronize any particular pharmacy in the network. Second, health care providers generally gi ve HMOs something of value (at least in the form of lower p rices) in exchange for admission into a network. Thus, if the allegations in this case violated the statute, HMOs might be rendered illegal in Pennsylvania. The Pennsylvania General Assembly could not have so intended.

2. Commercial Bribery

The Pennsylvania commercial bribery statute states that a "person who holds himself out to the public as be ing in the business of making disinterested selection, app raisal, or
criticism of commodities or services" violates the law "if he solicits, accepts or agrees to accept any benefit t o influence his selection, appraisal or criticism." 18 Pa. Cons . Stat. Ann. S 4108(b) (Purdon 1983). Thus, in order for th e conduct in this case to constitute commercial bribe ry, BCI would have to prove (1) that U.S. Healthcare held i tself out as being in the business of making disinterested se lection, appraisal or criticism of health care providers; an d (2) that it solicited, accepted, or agreed to accept a benef it to influence that selection, appraisal or criticism.

BCI argues that the jury had sufficient evidence be fore it
from which to conclude that the defendants held themselves out to the public as selecting providers disinterestedly, based solely on the quality of the provider. BCI points to the testimony of defendant Wolfson to the
effect that U.S. Healthcare holds itself out as hav ing quality assurance procedures, and to a snippet from U.S. Healthcare's annual report which boasts of

58U.S. Healthcare's performance monitoring and qualit y

assessment systems for the health care providers in its networks, and which states that the quality assessm ents systems "begin with the certification of providers before they can become eligible to care for our members."

U.S. Healthcare responds convincingly that this evi dence merely documents the reality that provider quality was a necessary, but not always sufficient, criterion for inclusion
in its network. The "bottom line" is that U.S. Heal thcare is not a disinterested appraiser of health care provid ers; it is an HMO. An HMO is designed to provide access to low -cost, good quality health care, at a profit for the HMO. Thus, while U.S. Healthcare is required by law to allow o nly qualified providers into its network,27 and choose s its providers from the set of qualified providers, it a lone decides whom within that set to admit largely on th e basis of a provider's willingness to furnish care at mana ged care rates. There is nothing disinterested about this pr ocess, and we find no evidence to support a finding that U.S. Healthcare represented to the public that the process was, in fact, disinterested.

Finally, we note that the essence of BCI's claim is that U.S. Healthcare used its quality assurance machiner y not just to assure quality, but also to coerce Gary's i nto giving CHA its TPA business. The commercial bribery statut e, however, is not concerned with the motive underlyin g U.S. Healthcare's use of its quality assurance proc edures, so long as U.S. Healthcare did not hold itself out as a disinterested appraiser of pharmacies. Thus, while evidence of such coercion provides fodder for BCI's tortious interference claim, see infra, it is misplaced in t he context of an argument regarding the carefully circumscribe d crime of commercial bribery. In sum, since BCI failed to produce evidence to support a finding that U.S. Healthcare held itself out as a disinterested appraiser of pharmaci es, we must set aside the jury's finding that some of the defendants committed commercial bribery.

___________________________________________________ ______________

27. See 28 Pa. Code. S 9.71 (1997).

593. Mail and Wire Fraud

The federal mail and wire fraud statutes, 18 U.S.C. S 1341 and 18 U.S.C. S 1343, prohibit the use of th e mails or interstate wires for the purpose of carrying out any scheme or artifice to defraud. See Kehr Packages, I nc. v. Fidelcor, Inc., 926 F.2d 1406, 1413 (3d Cir. 1991). "A
scheme or artifice to defraud need not be fraudulen t on its face, but must involve some sort of fraudulent misrepresentations or omissions reasonably calculat ed to deceive persons of ordinary prudence and comprehens ion." Id. at 1415 (internal quotations omitted).

BCI contends that there was ample evidence for the jury reasonably to have found that the defendants engage d in a scheme to defraud Gary's concerning the nature and purpose of the quality assurance audit and freeze o f the Eagleville store, and the reason for the refusal to process the Abington store application. BCI submits that, w hereas the defendants led Gary's to believe that legitimat e quality assurance concerns motivated their actions, U.S. Healthcare really intended to use the audit as a means to pressure Gary's into switching to CHA as its TPA

. Assuming that BCI is correct regarding U.S. Healthc are's true motivation (and the record supports their view ), the
failure to disclose this motivation does not create a cognizable "scheme to defraud" in the absence of an y evidence that this omission was "reasonably calcula ted to deceive" Gary's.

Here, such a conclusion is not supported by the rec ord evidence, which instead supports the conclusion tha t Gary's was well aware of the fact that the audits w ere motivated either by a desire to retaliate against i t for canceling the contract with U.S. Healthcare and swi tching to a self-insurance program, or by a desire to enco urage it to choose CHA as its TPA. Indeed, the thrust of pla intiff's case is that Gary's was so acutely aware of this fa ct that it felt that it had no choice but to switch TPA provid ers. Moreover, if U.S. Healthcare's intention was to use the audits as a means of coercing Gary's to switch TPA

60providers, it would make little sense to conceal th is

underlying motivation from Gary's.28

As was the case with BCI's commercial bribery claim , the evidence of defendants' heavy-handed business tacti cs and, specifically, of their misuse of the quality assura nce machinery, while relevant to a tortious interferenc e claim, cannot be made to fit within the statutory and doct rinal
constraints of the mail and wire fraud statutes.

4. The Travel Act

To make out a violation of the Travel Act, 18 U.S.C

. S 1952, BCI is required to prove interstate travel or use of an interstate facility with the intent to promote u nlawful activity. See United States v. Zolicoffer, 869 F.2d 771, 774 (3d Cir. 1989). "Unlawful activity" is "extortion, bribery, or
arson in violation of the laws of the State in whic h
committed or of the United States." 18 U.S.C.S 1952 (b)(2). Thus, BCI's Travel Act claim hinges on the success of its Hobbs Act and commercial bribery claims. Since we h ave determined that the jury's findings of these predic ate acts must be set aside, so too must be the finding of a Travel
Act violation.

D. Conclusion

Having found that the BCI did not present a sustain able case that defendants committed any of the alleged p redicate acts, we must set aside the verdict that defendants violated 18 U.S.C. S 1962(c) and that they conspired to viol ate that section as prohibited by 18 U.S.C. S 1962(d).29

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28. Further, to the extent that BCI contends that U .S. Healthcare's proffered justification for the audit -- Gary's exc essive use of brand name drugs -- was an overt misrepresentation, we di sagree. The record shows that Gary's employees conceded that the state d reason was accurate, and that the audit revealed that Gary's w as using generic drugs far less than the network average and inadequ ately documenting
decisions not to use them. Our conclusion does not diminish BCI's claim that the audit was intended to coerce Gary's choice of TPA providers since even a "legitimate" audit may, based on timin g and other circumstances, have a coercive purpose and effect.

29. Defendants have also argued that the aiding and abetting liability imposed on the three U.S. Healthcare executives can not survive because

61V. TORTIOUS INTERFERENCE

In addition to finding for BCI on its federal law c laims, the jury also awarded BCI damages on the theory tha t defendants unlawfully and improperly interfered wit h BCI's existing and prospective contractual relations with Gary's. Defendants challenge this verdict on the ground tha t, as competitors for Gary's TPA business, they had a pri vilege to
interfere with BCI's terminable at will contract wi th Gary's so long as they did not employ "wrongful means". Se e Restatement (Second) of Torts S 768(1)(b) (1979). Defendants contend that BCI made no legally suffici ent showing of wrongfulness, and thus that the "competi tors' privilege" compels entry of judgment in their favor on BCI's tortious interference claim. In the alternative, de fendants argue that even if BCI presented a jury question on tortious interference, a new trial is required because of an error in the jury charge.

Pennsylvania recognizes both interference with exis ting contractual relations and interference with prospec tive
contractual relations as branches of the tort of in terference with contract. See U.S. Healthcare, Inc. v. Blue Cr oss of Greater Philadelphia, 898 F.2d 914, 925 (3d Cir. 19 90).
While the two branches of tortious interference are distinct, they share essentially the same elements. In order to prevail on a claim for intentional interference wit h contractual or prospective contractual relations, a plaintiff
must prove:

(1) the existence of a contractual, or prosp ective
contractual relation between itself and a th ird party;

(2) purposeful action on the part of the def endant, specifically intended to harm the existing r elation, or to prevent the prospective relation from occurr ing;

(3) The absence of a privilege or justificat ion on the part of the defendant;

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the statutory analysis applied to securities cases by the Supreme Court in Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164 (1994), if applied to the RICO statute , would eliminate RICO aiding and abetting liability. In view of the dismissal of the RICO claims, that argument need not be reached.

62(4) the occasioning of actual legal damage a s a re sult

of the defendants' conduct; and

(5) for prospective contracts, a reasonable likeli hood that the relationship would have occurred bu t for the
interference of the defendant

Pelagatti v. Cohen, 536 A.2d 1337, 1343 (Pa. Super. 1988); see also Thompson Coal Co. v. Pike Coal Co., 412 A. 2d 466, 471 (Pa. 1979); Birl v. Philadelphia Elec. Co., 167 A.2d 472, 474 (Pa. 1960).

The defendants assert that BCI failed to present su fficient evidence to satisfy the third element of its claim, which is the absence of privilege or justification on the pa rt of the defendants. In support of this contention the defen dants direct us to S 768 of the Restatement (Second) of T orts which sets forth the competitors' privilege. That s ection provides:

S 768. Competition as Proper or Improper Interferen ce.

(1) One who intentionally causes a third per son no t to enter into a prospective contractual relatio n with another who is his competitor or not to cont inue an existing contract terminable at will does no t interfere improperly with the other's relation if

(a) the relation concerns a matter involved in the competition between the actor and the other and

(b) the actor does not employ wrongful means and

(c) his action does not create or continue a n unla wful
restraint of trade and

(d) his purpose is at least in part to advan ce his interest in competing with the other.

(2) The fact that one is a competitor of ano ther f or the business of a third person does not prevent his causing a breach of an existing contract with the ot her from being an improper interference if the contra ct is not
terminable at will.

Section 768 has been recognized by Pennsylvania cou rts, see Gilbert v. Otterson, 550 A.2d 550, 554 (Pa. Sup er. Ct. 1988); Franklin Music Co. v. American Broadcasting Co.,

63616 F.2d 528, 543-44 (3d Cir. 1980), which are guid ed by

the Restatement of Torts in the area of tortious interference, see Adler, Barish, Daniels, Levin & C reskoff v. Epstein, 393 A.2d 1175 (Pa. 1978).

As a threshold matter, the parties dispute whether BCI's contract with Gary's was prospective or existing, a nd thus whether defendants can even seek the protection of S 768. BCI contends that, since it had an existing contrac t with Gary's at the time of defendants' alleged interfere nce, defendants' status as competitors could not make th e interference proper. See S 768(2). In response, def endants argue that BCI's contract with Gary's was terminabl e at will, and thus that the Restatement would character ize it as prospective, see Restatement (Second) of Torts S 76 6 cmt. g. ("an interference with [a contract terminable at wi ll] is closely analogous to interference with prospective contractual relations."), thereby bringing defendan ts' behavior within the ambit of S 768(1). While the pr oper classification of at will contracts in tortious int erference case law has been the subject of some controversy, we need not enter this debate here since S 768(1), by its t erms, applies to alleged interference with either prospec tive contractual relations or existing contracts termina ble at will. There is no question that BCI's contract with Gary's
was terminable at will.30

Turning to the four elements set forth in S 768(1), the parties do not contest that elements (a) and (d) ar e satisfied. BCI and CHA were competitors for Gary's TPA contract, and defendants had the purpose, at least in part, of advancing their interests through their competit ion with
BCI. We also conclude that to the extent that BCI i s arguing that defendants' conduct constituted an unl awful restraint of trade within the meaning of S 768(1)(c ), this contention is foreclosed by our reversal of BCI's a ntitrust
claim and BCI's failure to show how defendants cond uct violated any other federal or state statutory or co mmon law

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30. BCI's contract with Gary's provided that"[e]ith er party may terminate this Agreement for any reason or no reason at any t ime upon thirty (30) days written notice." This language clearly marks t he contract as terminable at will upon proper notice.

64anti-competitive prohibition. Thus, the question is whether

defendants' actions were privileged business compet ition, which turns on whether they employed "wrongful mean s" of inducement in their efforts to secure Gary's TPA co ntract. See S 768(1)(b).

The Pennsylvania Supreme Court has yet to provide a definition of "wrongful means", and thus we turn to the Restatement for guidance. In defining what kind of means are wrongful, comment e to S 768 provides, in part, that:

If the actor employs wrongful means, he is n ot justified under the rule stated in this Section. The p redatory means discussed in S 767, Comment c, physica l violence, fraud, civil suits and criminal pr osecutions, are all wrongful in the situation covered by this
Section.

Other courts, relying partly on this language, have interpreted the wrongful means element of S 768 to require independently actionable conduct on the part of the defendant. See, e.g. DP-Tek, Inc. v. AT&T Global In formation Solutions Co., 100 F.3d 828, 833-35 (10th Cir. 1997 ). Under this standard, wrongful means are those that are themselves capable of forming the basis of liabilit y for the defendant. Id. at 834 (citing Amerinet, Inc. v. Xer ox Corp., 972 F.2d 1483 (8th Cir. 1992)). The defendants cont end that the Pennsylvania Supreme Court would adopt thi s construction of wrongful means, and that we must
therefore set aside the tortious interference verdi ct as a matter of law since BCI has failed to identify any basis on which the defendants' conduct could be independentl y actionable other than the antitrust and RICO theori es which we have found to be legally untenable.

The disposition of BCI's claim, however, does not r equire us to determine whether Pennsylvania would limit wr ongful means to those that are independently actionable be cause the allegations of wrongful means in this case diff er in one crucial aspect from those in cases such as DP-Tek. Whereas in DP-Tek the defendant was accused of using wrongf ul means in the market in which it and the plaintiff c ompeted, here BCI has alleged that the defendants employed economic pressure in what we have deemed the market for

65pharmacy customers (where BCI was not a competitor) in

order to force Gary's hand in the TPA market (where BCI and CHA competed). This form of "competition" is specifically deemed wrongful by the portion of comm ent e which directly follows that quoted above. It reads:

The rule stated in this Section rests on the belief that competition is a necessary or desirable inci dent of free enterprise. Superiority of power in the matt ers relating to competition is believed to flow from supe riority in efficiency and service. If the actor succeed s in diverting business from his competitor by virtue of su periority in matters relating to their competition, he se rves the purposes for which competition is encouraged . If, however, he diverts the competitor's busines s by exerting a superior power in affairs unrelat ed to their competition there is no reason to suppose th at his
success is either due to or will result in s uperior efficiency or service and thus promote the i nterest that is the reason for encouraging competition. F or this reason economic pressure on the third person in matters
unrelated to the business in which the actor and the other compete is treated as an improper inte rference.

S 768, cmt. e. (emphasis added)

Based on the this section of comment e, we believe that even if the Pennsylvania Supreme Court were to requ ire independently actionable means, it would not apply that requirement in cases, such as this one, where the defendant exerted "economic pressure" or "a superio r power" in a market unrelated to the competitive mar ket. Cf. DP-Tek, 100 F.2d at 835 n.8 (citing comment e and n oting that an exception to the independently actionable c onduct requirement may exist "where a plaintiff proffers e vidence that the defendant exerted `a superior power in aff airs unrelated' to the business in which they compete.") . The defendants contend that Pennsylvania, while it has adopted S 768, would ignore this portion of comment e. We d isagree, since we see no reason why Pennsylvania would subsc ribe to the requirements of S 768, but only to selective portions of the comments explaining that section.

BCI proffered ample evidence from which a jury coul d conclude that U.S. Healthcare attempted to acquire Gary's

66TPA business by threatening Gary's with withdrawal of its

membership in the U.S. Healthcare provider network. BCI also adduced evidence of heavy-handed tactics by U.S. Healthcare in the market for pharmacy customer s. As was discussed in the RICO section, a reasonable jur y could have found that U.S. Healthcare used its quality as surance machinery not only to assure quality, but also to g enerate economic pressure on Gary's to switch TPA providers . While we found that this coercive misuse of the quality a ssurance apparatus was not cognizable as commercial bribery or mail/wire fraud, see supra, it is sufficient, based on comment e, to constitute wrongful means under Pennsylvania tortious interference law.

Defendants seek to avoid the clear application of comment e to their actions by arguing that since bo th comment e and federal tying/coercive reciprocal dea ling jurisprudence are concerned with the extension of e conomic power from one market to another, the two bodies of law should be read in tandem, and thus that BCI's failu re to show that the defendants possessed sufficient marke t power to violate the Sherman Act should preclude BC I, as a matter of law, from recovering on its tortious in terference claim. Put differently, defendants assert that they could not apply "economic pressure" on Gary's in the market f or pharmaceutical customers since they did not have appreciable market power, under federal law, in tha t market. We disagree both with the defendants' readi ng of comment e and with the premise that state tortious
interference law and federal antitrust law should b e read in pari materia.

Defendants' argument that the federal market power requirement must be grafted onto comment e is predi cated on their suggestion that without such a requirement
, comment e would render all reciprocal dealing/tyingarrangements tortious -- even those that are procompetitive. (Our reference to pro-competitive tyin g arrangements is to those that do not violate the Sh erman Act.) Defendants submit that such a result would be contrary to the public policy of Pennsylvania as ev idenced by the Commonwealth's failure to pass an Any Willin g Provider law. According to the defendants, this fai lure

67indicates that Pennsylvania favors selective contra cting

between HMOs and providers, and thereby approves of the
conduct at issue here.

We decline to read an affirmative policy statement into a legislature's failure to pass a law; to do so would be wholly speculative. But even if defendants are correct tha t Pennsylvania has a policy of allowing HMOs to decid e whom to admit into their networks, it would stretch this policy beyond its logical constraints to find in it tacit approval of the use of threatened exclusion from a pharmacy network to foreclose competition on the me rits in

an unrelated market.

Furthermore, we do not agree with defendants' readi ng of comment e. Rather, we read the language requiring t he plaintiff to show that the defendant employed "econ omic pressure" and "a superior power" in the unrelated m arket as requiring evidence that the defendant used its e conomic power in that market to coerce the third party's de cision in the competitive market. In order to show coercive p ressure, the plaintiff must prove that the defendant exercis ed some market power in the unrelated market -- lest the th ird party simply ignore its demands. However, we see no reason why economic coercion cannot be generated by market power that, while not sufficient to violate the Sherman Act, is nonetheless not insignificant, whic h is the

case here.31

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31. We reject defendants' argument that they are en titled to judgment as a matter of law since the only direct evidence that Gary's was coerced consists of hearsay testimony from three BCI employ ees to whom Gary's
Robin Risler indicated that she was forced to fire BCI, and testimony from Sandra Chen that Gary Wolf had indicated to he r that he was under pressure to entertain a bid for U.S. Healthca re's TPA service. The district court properly admitted these statements p ursuant to Fed. R. Evid. 803(3), the "state of mind" exception to the hearsay rule, with the limiting instruction that the jury should not view the testimony as proof of the truth of the underlying facts asserted. Defe ndants contend that despite this instruction, the jury must have improp erly used the testimony as substantive evidence of coercion, beca use there was no other evidence of coercion. We disagree with this c onclusion and with the defendants' view of the evidence, since we beli eve that there is ample circumstantial evidence from which a jury could hav e reasonably inferred that Gary's was coerced. Defendants are, of course, free to argue their
view of the evidence on remand.

68Viewing the preceding discussion in a broader conte xt,

defendants' contention that comment e should be rea d to include a federal market power requirement ignores the different purposes and scopes of inquiry of the two bodies of law. In particular, it fails to recognize both t he gatekeeping role that the market power requirement plays in federal tying jurisprudence and the quite differ ent policies of state tort law. Federal antitrust law i s directed at protecting competition rather than individual compe titors, and outlaws only those tying/reciprocal dealing arrangements that substantially foreclose competiti on in the tied product market. The market power requireme nt of the per se antitrust jurisprudence serves this goal since it is presumed that where the defendant exercises appr eciable market power in the tying product market it can lev erage that power to substantially foreclose competition i n the tied product market.

The use of the federal market power screen is, howe ver, inapposite to state tortious interference law which does not predicate liability on a showing that the defendant 's conduct had broad anti-competitive effects. Unlike federal antitrust law, state tortious interference law is d esigned to protect competitors not competition. In this regard , it bases liability for competitors, in part, on the means of competition employed and their effect on a single competitive interaction. This inquiry neither requi res, nor is served by, a showing that the defendant exercised appreciable market power.

In the end, we take a fundamentally different view of BCI's tortious interference claim from that espouse d by the defendants. As we noted earlier in this opinion, th e crux of defendants' argument is that BCI should not be able to repackage a failed antitrust claim as tortious inte rference. In our view, BCI has attempted just the opposite. T hat is,
it has taken conduct that constituted tortious inte rference with contractual relations and attempted to turn it into violations of federal antitrust and racketeering la ws. While these attempts have been derailed on this appeal, t hat
result does not foreclose BCI's state tort law clai m.

Despite our determination that BCI adduced sufficie nt evidence at trial to allow a reasonable jury tofind that

69defendants employed wrongful means and thus acted

outside the scope of the competitors' privilege, we must reverse the judgment and remand the case for a new trial because of errors in the relevant jury charge. The district court instructed the jury on "wrongful means" as fo llows:

It is -- wrongful means to take business awa y from a competitor by using economic power in matter s that
are unrelated to the business in which the c ompetitors compete. Thus taking away a competitor's bus iness by applying economic pressure in an area that i s unrelated to the field in which the parties compete constitutes wrongful means.

Wrongful means also include any unlawful con duct in violation of specific statutory provisions o r of established public policy.

To determine whether a defendant's interfere nce was wrongful, you should consider the following factors: first, the nature of the actor's conduct; se cond, the actor's motive; third, the interests of the other with which the actor's conduct interferes; fourth , the interests sought to be advanced by the actor ; fifth, the social interests in protecting the freedom o f action of
the actor and the contractual interests of t he other; sixth, the proximity or remoteness of the ac tor's conduct to the interference and, seventh, th e relations between the parties.

As set out in the proceeding discussion, the first paragraph of this instruction, which is derived fro m comment e to S 768, provides a proper basis on whic h the jury could have determined that the defendants' con duct was wrongful. However, the second paragraph, while an accurate statement of the law, necessitates a retri al because it invited the jury to import the errors in the antitrust and RICO analysis, as set out supra, into the tortious interference analysis. Indeed, based on th e prominent position that BCI's antitrust claim occup ied at trial, such infection almost certainly occurred. Fa ced with this circumstance, the proper course is for us to r emand for a new trial rather than attempt to divine the basis of the jury's verdict. See Wilburn v. Maritrans GP, Inc., ___ F.3d

70___, 1998 WL 100551, *9 (3d Cir. Mar. 10, 1998) ("W here a

jury has returned a general verdict and one theory of liability is not sustained by the evidence or legal ly sound,
the verdict cannot stand because the court cannot determine whether the jury based its verdict on an improper ground."); Avins v. White, 627 F.2d 637, 6 46 (3d Cir. 1980) (" `Where . . . a general verdict may re st on either of two claims -- one supported by the evidence and the other not -- a judgment thereon must be reversed.' ") (quoting Albergo v. Reading Co., 372 F.2d 83, 86 (3 d Cir. 1967)); see also McKenna v. Pacific Rail Service, 3 2 F.3d 820, 831-32 (3d Cir. 1994).32

BCI argues that remand is not required since defend ants' waived any objection to the jury charge. Their argu ment
has two bases. The first is Fed. R. Civ. P. 51 whic h requires any objections to the jury charge to be made at the close of the charge. As BCI correctly notes, no such objecti on was lodged in this case. Despite this failure, we do no tfind
waiver since we see no basis on which defendants co uld have objected to this portion of the instruction. A s noted, the problem with the court's instruction was not th at it misstated the law, but rather that, in correctly st ating the law, it created the possibility that errors in the RICO and
antitrust verdicts would contaminate the tortious interference verdict. Thus, it was not until our de cision on appeal that the tortious interference instructions became erroneous. In such a situation, it would be unfair to visit

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32. We do not believe that any doubt is cast on the applicability of this general rule by the fact that this case was submitt ed to the jury on special interrogatories and thus, unlike the cases cited, the jury did not render a general verdict. Our reading of the verdic t sheet submitted to the jury in this case indicates that, at least as t o the tortious interference count, the verdict rendered by the jur y was the functional equivalent of a general verdict. The sole question relating to tortious interference liability posed to the jury was

Do you find that the plaintiff has proven by a preponderance of the evidence that the following defendants inten tionally interfered
with the plaintiff's existing or prospective cont ractual relations.

As this interrogatory in no way facilitates our inq uiry into the basis for the jury verdict, we find that the general rule req uiring remand stated in Wilburn and Avins governs.

71the harsh consequence of waiver on the defendants. This

conclusion is buttressed by the fact that defendant s did object at trial to the jury instructions regarding the alleged
antitrust violation.

BCI also contends that since the case was submitted to the jury on special interrogatories, defendants' fa ilure to proffer any interrogatories requiring the jury to s pecify the basis on which they found defendants conduct to be wrongful resulted in a waiver by defendants of any right they had to a new trial on that basis. This content ion is based on Fed. R. Civ. P. 49(a), which governs the u se of special verdicts in the federal courts. Specificall y, plaintiff relies on that part of Rule 49(a) which provides th at if, when submitting special interrogatories to the jury , "the court omits any issue of fact raised by the pleadin gs or by the evidence, each party waives the right to a tria l by jury of the issue so omitted unless before the jury reti res he demands its submission to the jury." Fed. R. Civ. P . 49(a).33

While, under Rule 49(a), a court may be deemed to h ave made a factual finding on an element of an offense that is necessary to sustain a judgment even though the jur y did not specifically answer an interrogatory concerning that element, see Watkins v. Fibreboard Corp., 994 F.2d 253,

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33. Rule 49(a) provides:

(a) Special Verdicts. The court may require a jury to return only

a special verdict in the form of a special wri tten finding upon each issue of fact. In that event the court may s ubmit to the jury
written questions susceptible of categorical or othe r brief answer or may submit written forms of the several special findings which might properly be made under the pleadings and evi dence; or it may use such other method of submitting the issues a nd requiring the written findings thereon as it deems most ap propriate. The court shall give to the jury such explanation and instruction concerning the matter thus submitted as may be necessar y to enable the jury to make its findings upon each issue. If in so doing the court
omits any issue of fact raised by the pleadings or by the evidence, each party waives the right to a trial by jury of the issue so omitted unless before the jury retires the party dem ands its submission to the jury. As to an issue omitted without suc h demand the court may make a finding; or, if it fails to do so, it shall be deemed to

have made a finding in accord with the judgment o n the special verdict.

72257-58 (5th Cir. 1993), we do not read this rule, b y its

terms, as applying to the situation where, as here, the defendants' objection is not based on the fact that the wrongfulness issue was not submitted to the jury, b ut rather that the court gave a definition of wrongful that has been rendered erroneous by our decision on this app eal.

Nor would such an application be in keeping with th e purpose of that section of Rule 49(a) that allows t he trial court to "fill in the gaps" of a special verdict. A s noted in Watkins, this ability

is imperative if a special verdict . . . rat her than a general verdict is to continue to be employe d. Otherwise there would always be the danger t hat the special verdict would be set aside because t he jury had failed to make a particular finding whereas a general verdict could not be challenged on this grou nd.

994 F.2d at 258 (citing 5A Moore's Federal Practice P 49.03(4) (1993); 9a Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure S 2507 (1971)). In t his case, even had the jury rendered a general verdict, we wo uld be
constrained to remand for a new trial based on erro rs in the charge. Thus, the need to preserve symmetry bet ween the treatment of general and special verdicts would not be served, and would indeed be denigrated, by a findin g of waiver predicated on Rule 49(a).

VI. CONCLUSION

For the foregoing reasons, the judgment of the dist rict
court will be reversed and the case remanded with instructions to grant judgment for the defendants' on BCI's antitrust and civil RICO claim, and to conduct a ne w trial
on BCI's claim for tortious interference with contr actual
relations.34

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34. On retrial, the jury will have to consider anew whether defendants' behavior was outrageous enough to warrant an award of punitive damages under Pennsylvania law. See Takes v. Metrop olitan Edison Co., 655 A.2d 138, 146 (Pa. Super. 1995) ("[P]unitive da mages will lie only in cases of outrageous behavior, where defendant's egr egious conduct

73The parties shall bear their own costs.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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shows either an evil motive or reckless indifferenc e to the rights of others.") While the original jury found malice on t he part of U.S. Healthcare and its executives, such a finding may not be inevitable at retrial where the jury will not be under the mis taken impression that defendants' conduct violated the Sherman Act, civil RICO, and the statutes underlying the predicate acts of the RICO count. We, of course, intimate no view on that subject.

74