Bank of Hope v. Miye Chon ( 2019 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 18-1567
_______________
BANK OF HOPE, as successor to Wilshire Bank
v.
MIYE CHON, also known as Karen Chon;
SUK JOON RYU, also known as James S. Ryu;
TAE JONG KIM; BERGENFIELD BAGEL & CAFE, doing
business as Cafe Clair;
MAYWOOD BAGEL INC.; UB’S PIZZA & BAGEL INC.;
UB’s BAGEL & CAFE INC.; UBK BAGELS CORP.,
doing business as Franklin Bagels & Cafe
SUK JOON RYU, a/k/a James S. Ryu, Third Party Plaintiff
v.
KWON HO JUNG; JAE WHAN YOO; STEVEN S. KOH;
LISA PAI, Third Party Defendants
Suk Joon Ryu,
Appellant
_______________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2-14-cv-01770)
District Judge: Honorable Jose L. Linares (Retired)
_______________
Argued June 4, 2019
Before: JORDAN, BIBAS, and MATEY, Circuit Judges
(Filed: September 17, 2019)
_______________
David V. Dzara
Stephen G. Harvey [ARGUED]
Steve Harvey Law
1880 John F. Kennedy Boulevard
Suite 1715
Philadelphia, PA 19103
Counsel for Appellant
Michael M. Yi [ARGUED]
Lee Anav Chung White Kim Ruger & Richter
99 Madison Avenue
8th Floor
New York, NY 10016
Counsel for Appellee Bank of Hope
2
_______________
OPINION OF THE COURT
_______________
BIBAS, Circuit Judge.
Courts have inherent power to keep their proceedings fair
and orderly. They can use that power to order the parties before
them not to talk with each other, the press, and the public. But
that power comes with limits. The First Amendment requires
that we tread carefully when we restrict speech. A court must
thus explain why restricting speech advances a substantial gov-
ernment interest, consider less-restrictive alternatives, and en-
sure that any restriction does not sweep too broadly.
Here, Bank of Hope sued Suk Joon Ryu for embezzling
money from its customers. As the case went on, Ryu began
sending letters to the Bank’s shareholders. Those letters al-
leged that the Bank’s claims were baseless and were ruining
his reputation. He hoped that the letters would pressure the
Bank to settle. The Bank then asked the magistrate judge to ban
Ryu from contacting its shareholders. The magistrate judge
agreed, and the District Court affirmed. But the District Court
marshaled no evidence that this restriction on speech was
needed to protect this trial’s fairness and integrity. And it con-
sidered no less-restrictive alternatives. So its order violates
Ryu’s First Amendment rights, and we will vacate and remand.
3
I. BACKGROUND
A. The Bank accused Ryu of embezzlement
Ryu helped found Wilshire Bank and worked there for dec-
ades as a high-level executive. Things changed in 2013: Wil-
shire Bank went through a series of mergers and eventually be-
came Bank of Hope. That same year, Ryu left to work for an-
other bank.
About a year later, the Bank found out that one of its em-
ployees, Miye Chon, had stolen money from dozens of custom-
ers. She had managed to embezzle more than a million dollars.
The Bank fired her, and she later pleaded guilty.
Chon tried to take Ryu down with her. She alleged that Ryu
had taken part in the embezzlement and taken a sizable cut of
the proceeds. The Bank believed her and jumped into action: It
froze Ryu’s personal account at the Bank. It shared its suspi-
cions with Ryu’s new employer, which then fired him. And it
sued both Chon and Ryu to recover the embezzled funds.
Ryu denied any wrongdoing, and the government never
charged him. He also filed counterclaims against the Bank for
various torts and breach of contract. Thus began this litigation.
B. The District Court restrained Ryu’s speech
Litigation can take a long time. Ryu grew impatient, so he
took matters into his own hands. He sent a letter to the Bank’s
chief executive, denying any role in the embezzlement and dis-
4
paraging the evidence against him. He claimed that the litiga-
tion was ruining his professional reputation and had pained
members of his family. And he advised the Bank to settle.
Ryu heard only radio silence, but that did not stop him. Al-
most a year later, he sent a longer letter to the same executive,
similarly blaming the Bank for his and his family’s maladies
and financial straits. The second letter came with a threat: if the
Bank did not settle, he would start lobbying its shareholders.
Once again, his letter changed nothing. So Ryu followed
through and wrote to dozens of institutional shareholders.
These letters accused the Bank of a years-long campaign to de-
fame him and hurt his family. And they warned that the lawsuit
would sap shareholders’ confidence in the Bank and undercut
its value. Ryu hoped that the letters would pressure the Bank
to settle on favorable terms.
These letters irked the Bank, so it sent Ryu a cease-and-
desist letter. And it told the District Court that “Ryu [was] at-
tempting wrongfully and unlawfully to coerce Bank of Hope
into making a settlement payment.” App. 50. The magistrate
judge then ordered Ryu not to contact the Bank’s shareholders
“pending further briefing and decisions on these issues.” App.
70. After more briefing, the magistrate judge finalized that ban
in another order.
Ryu then appealed to the District Court, but to no avail. The
District Court deferred to the magistrate judge’s recommenda-
tion and affirmed. Ryu now appeals to us.
5
II. THE DISTRICT COURT’S ORDER IS A COLLATERAL
ORDER
We must first decide whether we have appellate jurisdic-
tion. Our review is generally limited to “final decisions of the
district courts.” 28 U.S.C. § 1291. But we make a narrow ex-
ception for collateral orders. To be collateral, an order must
satisfy three criteria. It must “[1] conclusively determine the
disputed question, [2] resolve an important issue completely
separate from the merits of the action, and [3] be effectively
unreviewable on appeal from a final judgment.” Will v. Hal-
lock, 546 U.S. 345, 349 (2006) (internal quotation marks omit-
ted). Because the District Court’s order meets all three criteria,
we have appellate jurisdiction.
First, the District Court conclusively determined Ryu’s
ability to speak to the shareholders. It barred him from contact-
ing the Bank or its shareholders and said that he could speak
with the Bank only through his counsel. And it affirmed the
magistrate judge’s second order without change. Nothing in
this order suggests that it was non-final, conditioned on future
events, or subject to revision. Cf. Lusardi v. Xerox Corp., 747
F.2d 174, 177–78 (3d Cir. 1984) (finding an order non-final
because it was expressly conditional and could be revisited).
Yet the Bank makes much ado about one line in the magis-
trate judge’s second order. The magistrate judge ordered Ryu
“to cease such communications pending further order from the
Court.” App. 227 (emphasis added). But that is not enough to
escape the collateral-order doctrine.
To start, we review the District Court’s order, not that of
the magistrate judge. But even if we consider the latter, the
6
Bank’s argument still fails because it ignores context. The
magistrate judge’s original order was entered “for the short
period of time that it will take to develop the record and fully
brief these issues.” App 70. That order was tentative, but Ryu
did not appeal it. Nor could he. Instead, he appealed the District
Court’s order affirming the magistrate judge’s second order,
which was entered months later, after detailed briefing. That
order conclusively “precluded” him from contacting the share-
holders. App. 224.
And an order can be collateral even if the lower court re-
tains “discretionary power to reopen [its] ruling.” United States
v. Bertoli, 994 F.2d 1002, 1011 (3d Cir. 1993). A contrary rule
would swallow up the collateral-order doctrine. Collateral or-
ders are by definition not final, so courts usually can revisit
them. Leaving this door ajar does not remove an order from the
doctrine’s scope. If it did, almost no order would be collateral.
That cannot be. In short, the doctrine’s first requirement is met.
Second, the District Court’s order resolved an important,
non-merits issue. The order was important: It imposed a prior
restraint on speech. And it weighed Ryu’s First Amendment
rights against the Court’s inherent power to manage proceed-
ings. The order was also unrelated to the merits. The Bank had
sued Ryu to recover the embezzled funds, not to keep him from
writing to its shareholders. And Ryu’s counterclaims sound in
tort and contract. So the second requirement is also met.
Third, the District Court’s order will be effectively unre-
viewable after judgment. If Ryu prevails, he cannot appeal
from a favorable judgment. And if he loses, we could strike
down the restraint, but the damage will be done. Ryu wants to
7
write to the shareholders now to get a favorable settlement. A
victory after judgment would be empty; the reviewing court
could not turn back the clock and let Ryu send his letters in
time. “[R]eview postponed will, in effect, be review denied.”
Zosky v. Boyer, 856 F.2d 554, 561 (3d Cir. 1988), abrogated
on other grounds by Green Tree Fin. Corp.-Ala. v. Randolph,
531 U.S. 79 (2000). So the third requirement is met too. The
collateral-order doctrine applies, and we have appellate juris-
diction.
III. EVEN IF RYU’S SPEECH WAS COMMERCIAL, THE
COURT ERRED BY RESTRAINING HIS SPEECH
The District Court forbade Ryu to speak with the Bank’s
shareholders. Such prior restraints on speech are presumptively
unconstitutional and subject to strict scrutiny. See N.Y. Times
Co. v. United States, 403 U.S. 713, 714 (1971) (per curiam). A
judgment “deeply etched in our law” underlies that rule: “a free
society prefers to punish the few who abuse rights of speech
after they break the law than to throttle them and all others be-
forehand.” Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 559
(1975).
But the Bank argues that the prior-restraint doctrine does
not apply. It claims instead that our review should be less vig-
orous because Ryu’s letters are commercial speech. True
enough, the “traditional prior restraint doctrine may not apply
to [commercial speech].” Cent. Hudson Gas & Elec. Corp. v.
Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 571 n.13 (1980). But
neither the Supreme Court nor this Court has ever found that
8
speech like Ryu’s letters was commercial, so whether the com-
mercial-speech doctrine plays any role here is doubtful.† We
need not decide this issue, however, because the District
Court’s order fails any level of scrutiny.
If the Bank were right, and Ryu’s speech were commercial,
the prior-restraint doctrine likely would not apply. Even so, the
District Court’s order could not stand, because it fails even the
less-rigorous form of review that governs limits on commercial
speech.
We assess limits on commercial speech using a multi-part
test. This one comes from Central Hudson and has four parts.
Cent. Hudson, 447 U.S. at 566. First, speech that is misleading
or concerns illegal activity is unprotected. Id. But if the speech
†
Commercial speech is “usually defined as speech that
does no more than propose a commercial transaction.” United
States v. United Foods, Inc., 533 U.S. 405, 409 (2001). The
First Amendment protects this speech because “the free flow
of commercial information” lets the public make informed eco-
nomic decisions. Va. State Bd. of Pharmacy v. Va. Citizens
Consumer Council, Inc., 425 U.S. 748, 763 (1976). Whether
First Amendment scrutiny applies largely depends on three
factors: “(1) is the speech an advertisement; (2) does the
speech refer to a specific product or service; and (3) does the
speaker have an economic motivation for the speech.” U.S.
Healthcare, Inc. v. Blue Cross of Greater Phila., 898 F.2d 914,
933 (3d Cir. 1990). The Bank hangs its hat on the third factor:
Ryu had an economic motivation for sending the letters. Ryu
concedes that he sent the letters in part to prompt a favorable
settlement. But the Bank cites no case showing that this fact
alone is enough to make his speech commercial.
9
is lawful and not misleading, the restriction must satisfy three
more prongs to survive. Second, the government must have a
substantial interest in regulating the speech. Id. Third, the re-
striction must directly advance that interest. Id. Fourth, the re-
striction must be no broader than necessary. Id.A. Ryu’s speech is neither related to illegal activity nor
misleading
The first prong does not really fit this case. Ryu has never
threatened to commit any crime or tort, and the Bank does not
claim otherwise. His speech thus does not relate to illegal ac-
tivity. This would be a different case if the letters amounted to
blackmail.
Nor has Ryu made factually false statements. The Bank dis-
putes their accuracy, but that boils down to the underlying mer-
its of whether the Bank in fact defamed him or breached its
contract. And we normally ask about the misleading nature of
speech in the context of advertisements and the like, which of-
ten make factual claims that are “easily verifiable.” Va. Bd. of
Pharmacy, 425 U.S. at 772 n.24. Here, by contrast, we cannot
ourselves disentangle the truth of Ryu’s letters from the merits
of the lawsuit about which he speaks. Nor did the District Court
make any findings to this effect. So we cannot say that this
speech is deceptive.
B. The District Court had a substantial interest in reg-
ulating Ryu’s speech
At the second prong, we look for a substantial governmen-
tal interest. The District Court pointed to several, but only one
in particular is legitimate. The Court restrained Ryu’s speech
10
in part “to protect the integrity of this litigation.” App. 240.
That part of its reasoning was on sound footing. Courts have a
substantial interest in ensuring the fairness and integrity of the
proceedings before them. Indeed, they must give the parties a
fair trial in both civil and criminal cases; failing to do so vio-
lates due process. Neb. Press Ass’n v. Stuart, 427 U.S. 539,
552–53 (1976); Bailey v. Sys. Innovation Inc., 852 F.2d 93, 98
(3d Cir. 1988).
“Courts of justice are [thus] vested, by their very creation,
with power to impose silence, respect, and decorum, in their
presence.” Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991)
(quoting Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 227
(1821)). That inherent power is part of courts’ discretionary
authority to manage their cases. Id.But the order did not rest solely on protecting the integrity
of this case. Both the District Court and the magistrate judge
expressed a broader concern. Lawyers usually cannot speak di-
rectly to opposing parties. Model Rules of Prof’l Conduct r. 4.2
(Am. Bar Ass’n 2016). Yet Ryu, a party represented by coun-
sel, wrote to the Bank’s shareholders. The magistrate judge
thought that “[i]t would eviscerate that fundamental principle
to allow [Ryu] to do what his counsel cannot.” App. 222. And
the District Court deferred to this conclusion. The magistrate
judge cited only a single authority for this proposition: “the
spirit of” Federal Rule of Civil Procedure 1. App. 222–23.
Yet that rule says nothing about ex parte contacts. It merely
recites the purpose of the Federal Rules, calling in the most
general terms for making litigation “just, speedy, and inexpen-
sive.” Fed. R. Civ. P. 1.
11
More importantly, we find no authority for a court to police
the Federal Rules, let alone their spirit, by restricting speech.
See 28 U.S.C. § 2072(b) (the Federal Rules “shall not abridge
. . . or modify any substantive right[s]”). The only substantial
interest that was before the Court, as far as we can see, was in
ensuring the fairness and integrity of a particular judicial pro-
ceeding. Interests that are untethered from that particular pro-
ceeding are not enough.
In short, the District Court had the power to impose a
restraint. And it had a substantial interest in doing so.
C. The District Court marshaled no evidence that the
restriction on Ryu’s speech would advance that interest
We next move to Central Hudson’s third prong, which re-
quires the court to ensure that its restriction directly advances
that interest. The District Court thought that its restriction did
that. It worried that Ryu’s letters would disturb its proceedings
by forcing the Bank to drop its case and accept an unfair set-
tlement. The magistrate judge fretted that Ryu was trying “to
obtain a strategic advantage” by talking directly to the Bank’s
shareholders, bypassing its counsel. App. 222. Preventing such
communications, it thought, would put the parties back on
equal footing.
But “mere speculation or conjecture” is not enough to re-
strict commercial speech. Edenfield v. Fane, 507 U.S. 761, 770
(1993). Instead, the Court needed to ensure “that the harms it
recite[d] [were] real and that its restrictions [would] in fact al-
leviate them to a material degree.” Id. at 771. Here, the District
Court and the magistrate judge found no facts suggesting that
12
Ryu’s letters would coerce the Bank into an unfavorable settle-
ment. The Bank’s executives never declared or testified to that.
Nor was there any evidence that the Bank’s shareholders influ-
enced the Bank’s litigation strategies. We see no evidence that
could justify this restriction on speech.
D. The District Court failed to consider less-restrictive
alternatives
Another problem is with tailoring. If a court can “achieve
its interests in a manner that does not restrict speech, or that
restricts less speech, [it] must do so.” Thompson v. W. States
Med. Ctr., 535 U.S. 357, 371 (2002). But neither the magistrate
judge nor the District Court considered a single alternative to
this restraint on speech.
And not for a want of options. The Court could have limited
the time for which the restraint would apply. It could have
barred Ryu from making only certain representations to share-
holders, instead of a blanket ban. It could have supervised set-
tlement discussions to guard against undue influence. If the
case went to trial, it could have enlarged the jury pool and used
cautionary jury instructions to remove any lingering doubts
about fairness. In short, the District Court had many options.
Before restricting Ryu’s speech, it had to consider at least some
of them and find them inadequate.
We do not question courts’ longstanding authority to regu-
late the parties before them and to issue orders to promote the
fairness and integrity of that litigation. But “[b]ecause of their
very potency, inherent powers must be exercised with restraint
and discretion.” Chambers, 501 U.S. at 44. Before restraining
13
speech, courts must review the record for evidence that a
speech restriction will make that particular lawsuit fairer and
consider other, less-intrusive alternatives. No matter what kind
of scrutiny applies, courts must always “consider[ ] the ‘fit’ be-
tween [their] ends and the means chosen to accomplish
[them].” Rubin v. Coors Brewing Co., 514 U.S. 476, 486
(1995) (internal quotation marks omitted). Because the District
Court made no such finding here, its order cannot survive even
intermediate scrutiny.
* * * * *
The District Court’s concerns were understandable. We
must vigilantly guard against efforts to undermine the judicial
process. But the antidote usually lies in more speech and less
government intrusion. 44 Liquormart, Inc. v. Rhode Island,
517 U.S. 484, 498 (1996).
The First Amendment requires courts to tread warily when
restricting litigants’ speech. They may do so only when neces-
sary to protect the fairness or integrity of the particular litiga-
tion before them. And they must first find that the speech risks
harming that litigation, that restricting the speech will alleviate
that particular harm, and that less-restrictive alternatives will
not suffice. The District Court here made no such findings and
considered no alternatives. So we will vacate and remand for
further proceedings.
14