Collateral Conflict: Employer Claims of RICO Extortion Against Union Comprehensive Campaigns

James J. Brudney, The Ohio State University, Moritz College of Law

Abstract

Over the past 30 years, facing volatile economic conditions and complex corporate relationships, unions have mounted coordinated campaigns (aimed at consumers, public officials, lenders, the media, and the public) in order to help organize new workers and to renew collective bargaining relationships. These often high-profile campaigns have at times been quite successful. In response, employers since the late 1980s have invoked civil RICO’s broad language to claim that the campaigns constitute actionable extortion. When these employer claims survive a motion to dismiss, they carry the threat of treble damages, attorneys’ fees, and reputational harms associated with unions being labeled mobsters. Such threats are usually enough to force a settlement if a motion to dismiss is denied, and this often means the demise of the union’s organizing or bargaining efforts. Countless millions of dollars have been expended on lawsuits involving civil RICO and unions, and there is no sign the litigation will abate any time soon.

The article contends that as a matter of law most RICO extortion claims against union comprehensive campaigns should not survive a motion to dismiss. In making its argument, the article examines in unprecedented depth the remarkable conversation between the Court and Congress regarding RICO—how the Court in the 1980s consciously expanded the text’s meaning well beyond conduct Congress had meant to reach; how Congress’s serious reform efforts over a 15 year period met with no success; and how the Court since 2001 has proceeded to adopt restrictive interpretations of civil RICO in the face of the prolonged congressional failure to do so. Having discounted Congress’s inability to enact RICO reform, the Court has signaled a willingness to exercise its own constraints when interpreting the language and concepts of civil RICO. That willingness, along with previous Court decisions reconciling federal regulation with various forms of aggressive speech-related activity, helps to frame and guide an appropriate response to the extortion cause of action at issue. The article uses close statutory analysis and an assessment of the Court’s unusual institutional approach to argue that the time is ripe for resolution of this significant issue of labor relations law and policy.