NOT RECOMMENDED FOR PUBLICATION
                                File Name: 22a0258n.06

                                           No. 21-5989

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                    FILED
 LARRY FACKLER, EDWARD HOBBS, and )                                           Jun 28, 2022
 STEPHEN HAGER, on behalf of themselves and all )                         DEBORAH S. HUNT, Clerk
                                                )
 others similarly situated,
                                                )
         Plaintiffs-Appellants,                 )                ON APPEAL FROM THE
                                                )                UNITED STATES DISTRICT
         v.                                     )                COURT FOR THE WESTERN
                                                )                DISTRICT OF KENTUCKY
 GREENLAND ACQUISITION CO., INC.; NUCOR )
 CORPORATION,                                   )                                       OPINION
         Defendants-Appellees.                  )
                                                )


                Before: BATCHELDER, CLAY, and LARSEN, Circuit Judges.

     LARSEN, J., delivered the opinion of the court in which BATCHELDER, J., joined.
CLAY, J. (pp. 15–20), delivered a separate dissenting opinion.

       LARSEN, Circuit Judge. Local farmers near Brandenburg, Kentucky used to sell their

crops to Consolidated Grain & Barge Co., the operator of a nearby grain elevator. But the land on

which the elevator sat was quite valuable—so valuable that Nucor Corporation offered

Consolidated millions to destroy the elevator so that Nucor could build a steel mill in its place.

Consolidated stood to make more by accepting Nucor’s offer than by reselling local grain, so

Consolidated agreed. Political gamesmanship ensued as Nucor and Consolidated urged local

authorities to consummate the deal. In the end, the deal went through; as a result, the farmers lost

the prospect of future sales to Consolidated. The farmers sued Nucor for intentional interference

with prospective economic advantage and civil conspiracy. The district court dismissed both

counts for failure to state a claim. We AFFIRM.
No. 21-5989, Fackler v. Greenland Acquisition Co.


                                                  I.

       We take the following allegations from the farmers’ complaint as true. Bose v. Bea, 

, 994 (6th Cir. 2020).

       In 2014, Consolidated built and began operating a grain elevator on part of the Meade

County Riverport, and local grain farmers started selling their crops to Consolidated. Consolidated

leased the land from the Meade County Riverport Authority, and for reasons not relevant here, the

Meade County Fiscal Court and the Meade County – Brandenburg Industrial Development

Authority were additional parties to the lease. The initial lease term would have expired in 2024,

with two 5-year optional renewal periods to follow.

       In March 2019, local officials announced that Nucor planned to build a steel mill at the

Riverport, though they assured the community that the grain elevator would continue operating.

Behind the scenes, however, Nucor, Consolidated, and certain public officials “[s]ecretly”

negotiated to terminate Consolidated’s lease and destroy the grain elevator so that Nucor could

occupy the entire Riverport. Nucor offered to pay Consolidated $12 million for the initial lease

termination and facility destruction, with another $8 million to follow in 2022 if Consolidated had

not built another grain facility nearby. The $20 million offer exceeded Consolidated’s expected

profit from future grain sales and any potential legal liability for breached contracts.

       Nucor wanted to complete the deal quickly, but that required getting all parties to the lease

to agree to its early termination. As of September 2019, members of the Fiscal Court and

Development Authority “believed the overall economic benefits” of Nucor’s steel mill

“outweighed the economic benefits of having a grain elevator there,” and thus wanted to move

forward with the early termination. A majority of the Riverport Authority, however, rejected the

plan as too damaging to local farmers. After the rejection, “Nucor and local officials scrambled


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No. 21-5989, Fackler v. Greenland Acquisition Co.


to find a way to terminate the lease” by Nucor’s target date: October 1. “Because of Nucor’s

urging, the Fiscal Court and Development Authority conceived of a plot to” replace two of the

objecting members of the Riverport Authority with stooges who would approve the termination

agreement.1 Nucor was “aware of and approved” that plan.

       To execute the scheme with minimal “public uproar,” the Fiscal Court called a special

meeting on October 1. To evade public scrutiny, the Fiscal Court kept the meeting agenda vague,

listing “Riverport”—nothing more—as the first item on the published agenda, in an alleged

violation of the Kentucky Open Meetings Act, Ky. Rev. Stat. § 61.823. And sure enough, at the

beginning of the meeting, the Fiscal Court replaced the two dissidents on the pretext that their

terms had expired. At the end of the meeting, three members of the newly constituted Riverport

Authority voted, without the required quorum of four, to approve the lease termination.

       On December 13, despite knowing that “the purported agreement of the Riverport

Authority . . . was obtained through improper, unjustified, and unlawful acts,” Nucor,

Consolidated, and the local authorities executed the early lease termination. A local organization

of farmers sued in state court to stop the destruction of the grain elevator, but its initial bid for

injunctive relief failed.2 By February 2020, Consolidated had terminated its existing contracts

with the farmers and had begun tearing down the grain facility.

       Three local farmers—Larry Fackler, Edward Hobbs, and Stephen Hager—brought this suit

against Nucor and its subsidiary, Greenland Acquisition Company, on behalf of a putative class of



1
 Kentucky law vests each county’s fiscal court with the authority to appoint and replace members
of the county riverport authority. See Ky. Rev. Stat. §§ 65.540(1)(b), 67.080(1)(f).
2
  The state trial court dismissed the suit for lack of standing, but the Kentucky Court of Appeals
reversed that ruling. Lincoln Trail Grain Growers Ass’n v. Meade Cnty. Fiscal Ct., 

, 768 (Ky. Ct. App. 2021).
                                                -3-
No. 21-5989, Fackler v. Greenland Acquisition Co.


all local farmers who sold or expected to sell grain to Consolidated. Invoking the federal court’s

diversity jurisdiction, the farmers asserted two claims under Kentucky law: intentional

interference with prospective economic expectancy and civil conspiracy. Nucor moved to dismiss,

arguing, among other things, that the farmers failed to state a claim.

       The district court granted Nucor’s motion. The court first decided that Nucor’s interference

was not improper because it was acting out of legitimate economic self-interest and merely

approved of—but did not participate in—the local officials’ plot to rig the Riverport Authority’s

vote. Second, the court concluded that the civil-conspiracy claim failed because Nucor neither

committed an underlying tort nor provided substantial assistance to the Fiscal Court and

Development Authority. The farmers appeal the dismissal of both claims.

                                                  II.

       We review de novo the district court’s grant of a motion to dismiss for failure to state a

claim. Bose, 947 F.3d at 994. “To survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

v. Iqbal, 

 (2009) (quoting Bell Atl. Corp. v. Twombly, 

 (2007)).

                                                  A.

       An actor may be liable to another for “intentionally and improperly” interfering with his

“prospective contractual relation” with a third party. Restatement (Second) of Torts § 766B (Am.

L. Inst. 1979); see NCAA ex rel. Bellarmine Coll. v. Hornung, 

 (Ky. 1988)

(adopting Second Restatement). The parties’ dispute here turns on whether Nucor’s interference

was “improper,” a question that Kentucky courts resolve using the Restatement’s seven-factor test.

Hornung, 

 (citing Restatement (Second) of Torts § 767). The parties’ arguments




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No. 21-5989, Fackler v. Greenland Acquisition Co.


center on two of those factors: “the actor’s motive” and “the nature of the actor’s conduct.”

Restatement (Second) of Torts § 767(a)–(b).

       We begin by settling a dispute regarding the import of Nucor’s motive. The parties take

opposite positions on this score. The farmers argue that “the fact that Nucor was acting in its own

economic interest is irrelevant.” Nucor, by contrast, says its economic self-interest is dispositive

because it belies a finding of “malice,” which Nucor believes is an indispensable element. The

right answer lies somewhere in the middle.

       A defendant’s motive is material but not always conclusive. As the Restatement explains:

       If the conduct is independently wrongful—as, for example, if it is illegal because it
       is in restraint of trade or if it is tortious toward the third person whose conduct is
       influenced—the desire to interfere with the [plaintiff’s] contractual relations may
       be less essential to a holding that the interference is improper. On the other hand,
       if the means used by the [defendant] are innocent or less blameworthy, the desire
       to accomplish the interference may be more essential to a holding that the
       interference is improper.

Id. § 767 cmt. d; see also United Propane Gas, Inc. v. NGL Energy Partners, LP, No. 2019-CA-

0816-MR, 

, at *6 (Ky. Ct. App. Dec. 11, 2020) (unpublished) (explaining that

although the defendant acted with a proper purpose, it could “still be held liable” if it “used

wrongful means to interfere”). Suppose, for example, Nucor had burned down the grain elevator,

forcing Consolidated to sell the land at a rock-bottom price. Even if Nucor’s motive was purely

economic, rather than malicious, that surely would not have excused its methods.

       In short, a pure motive is not the get-out-of-liability-free card that Nucor envisions. None

of the authorities it cites say otherwise. Some simply stand for the proposition—consistent with

the Restatement—that the absence of malicious intent cuts against a finding of impropriety when

there is no evidence of wrongful conduct. See Hornung, 

 (holding plaintiff

“must show malice or some significantly wrongful conduct”); ATC Distrib. Grp., Inc. v. Whatever


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No. 21-5989, Fackler v. Greenland Acquisition Co.


It Takes Transmissions & Parts, Inc., 

, 717 (6th Cir. 2005) (“The district court

properly granted summary judgment on this claim in favor of the . . . Defendants, because there is

no evidence in the record of either the malice or unjustified conduct required to prove intentional

interference.”); see also Excel Energy, Inc. v. Cannelton Sales Co., 

, 967–68 (6th

Cir. 2007) (similar). True, in Bourbon County Joint Planning Commission v. Simpson, 

 (Ky. Ct. App. 1990), the court said, without qualification, that to state an intentional

interference claim, “malice must be shown, but only in the sense of lack of justification for the

interference.” But the court also concluded that the defendants were statutorily “entitled” to

engage in their means of interference, and thus the plaintiff’s burden of showing impropriety was

an especially “difficult one.” 

. The court had no occasion to consider how wrongful

conduct might have lessened that burden.

       But neither are Nucor’s intentions “irrelevant” as the farmers contend. The farmers do not

allege that Nucor desired to cut off their contracts with Consolidated. Rather, to Nucor, the

interference was simply “a necessary consequence,” Restatement (Second) of Torts § 767 cmt. d,

of its plan to build a steel mill at the Riverport. See also Cullen v. South East Coal Co., 

 (Ky. Ct. App. 1983) (finding no improper interference where defendant’s conduct, though

intended to cut off plaintiff’s future contracts, was motivated by its legitimate economic interests).

With no evidence of mal-intent, the farmers’ tortious-interference claim requires allegations of

“some significantly wrongful conduct.” Hornung, 

; see also Restatement

(Second) of Torts § 767 cmt. f (An actor’s economic interest “is important and will normally

prevail over a similar interest of the other if the actor does not use wrongful means.”).

       The farmers group their allegations of wrongful conduct into two theories. As we address

each, keep in mind that the Restatement gives greater solicitude to existing contracts than


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No. 21-5989, Fackler v. Greenland Acquisition Co.


prospective ones. Restatement (Second) of Torts § 767 cmt. e. The fact that only prospective

contracts are at issue here—along with the absence of bad faith—weighs against deeming Nucor’s

interference improper.

                                                  1.

       The farmers’ first theory of wrongful conduct is that Nucor paid Consolidated too much.

Because the $20 million offer “exceeded the economic benefit” of operating a grain elevator at the

Riverport, the farmers contend that Nucor exerted improper pressure on Consolidated. We

disagree. What the farmers cast as coercion is more conventionally called competition.

       Although they produced different goods (grain and steel), the farmers and Nucor were

competitors in the sense that both wanted the economic benefit of the Riverport land. The farmers

wanted Consolidated to keep operating at the Riverport site; their “bid” amounted to the profits

Consolidated could expect from reselling the farmers’ grain. (They could have upped their “bid”

by lowering prices, for example.) Nucor wanted Consolidated to vacate the Riverport site, so that

Nucor could move in, and its bid was $20 million. The complaint says that Nucor’s bid was higher,

so Consolidated accepted it. That’s the kind of economic competition that American law not only

tolerates, but actively encourages. See Restatement (Second) or Torts § 768 cmt. b; Excel Energy,

246 F. App’x at 967–68; cf. Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co., 

, 323–24 (2007) (noting that “high bidding is essential to competition”).

       The farmers insist that Nucor’s offer amounted to unfair competition akin to predatory

pricing. Predatory bidding (predatory pricing on the buy side of the market) occurs when a buyer

temporarily offers a price for inputs that exceeds its expected return, with the goal of driving out

competitors and charging monopolistic prices in the long run. Weyerhaeuser, 549 U.S. at 320–21.

Because of its anticompetitive effects, predatory bidding violates the antitrust laws, 

, and


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No. 21-5989, Fackler v. Greenland Acquisition Co.


accordingly could be deemed improper interference with contractual relations, Restatement

(Second) of Torts § 768(1)(c).

        But the farmers fall far short of alleging predatory bidding. First, they never allege that the

$20 million offer exceeded Nucor’s expected return from running a steel mill. All they say is that

it exceeded Consolidated’s expected profit from running a grain elevator. That’s a winning bid,

not a predatory one. See Weyerhaeuser, 

 (“Given the multitude of procompetitive

ends served by higher bidding for inputs . . . only higher bidding that leads to below-cost pricing

in the relevant output market will suffice as a basis for liability for predatory bidding.”). Second,

the farmers’ theory misunderstands the reason for the ban on predatory bidding. High bids are not

themselves a problem; it’s the potential for later monopolistic pricing that the law polices. See 

at 323–24. The farmers complain about Nucor’s “exorbitant” bid, but they never take the next

step of explaining how its one-time purchase of a non-fungible good might enhance its monopoly

power. Indeed, we question whether the farmers could have made such a showing given that they

and Nucor operate in different output markets. See, e.g., Province v. Cleveland Press Publ’g Co.,

 (6th Cir. 1986) (holding that former employees lacked standing to sue

newspaper for reducing competition in the newspaper market in part because they were “not

consumers or competitors” in the market); Barton & Pittinos, Inc. v. SmithKline Beecham Corp.,

 (3d Cir. 1997) (Alito, J.) (“Because [plaintiff] was thus not a competitor or a

consumer in the market in which trade was allegedly restrained by the antitrust violations . . . [it]

lacked standing to institute this [antitrust] action.”).

        The farmers try to convert this second weakness into a strength, arguing that Nucor’s

conduct was particularly flagrant because they are not competitors. Had Nucor leveraged “lower

prices, better products, or more efficient services in the grain market,” the farmers surmise that its


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No. 21-5989, Fackler v. Greenland Acquisition Co.


conduct might have been acceptable. The implications of this argument are astounding: Taken

seriously, the farmers’ position would mean that no industry other than grain processing could

occupy that portion of the Riverport. Not surprisingly, the farmers cite no authority for their once-

a-grain-elevator-always-a-grain-elevator principle. As far as we know, there isn’t one. Cf. Olson

v. United States, 

 (1934) (holding that the fair market value of property “does

not depend on the uses to which [the current owner] has devoted his land but is to be arrived at

upon just consideration of all the uses to which it is suitable”).

        Finally, the farmers’ brief at times seems to suggest that Nucor’s “predatory” behavior

gives rise to an inference of nefarious intent. For example, they describe Nucor’s conduct as

“paying an exorbitant sum to shut down the market.” If Nucor had indeed offered to pay

extravagantly more than it could reasonably expect to recoup in steel sales, see Weyerhaeuser, 

, then such irrational behavior might suggest that Nucor wanted to do something other

than just purchase a valuable piece of property. That motive could, perhaps, support the conclusion

that Nucor’s interference was improper. See Restatement (Second) of Torts § 768 cmt. g (“[I]f

[the actor’s] conduct is directed solely to the satisfaction of his spite or ill will and not at all to the

advancement of his competitive interests over the person harmed, his interference is held to be

improper.”). But again, the complaint makes no allegations that Nucor’s bid was economically

irrational.

        The district court properly held that the farmers failed to state a claim for tortious

interference on the overpayment theory.

                                                    2.

        Alternatively, the farmers’ appellate briefing maintains that Nucor improperly induced

local officials to fix the vote of the Riverport Authority. But the farmers’ assertions on appeal find


                                                   -9-
No. 21-5989, Fackler v. Greenland Acquisition Co.


no support in their complaint. The appeal briefs claim, for example, that Nucor “coerce[d]” local

officials into executing the member-replacement scheme, but the complaint alleges that “the Fiscal

Court and Development Authority conceived” of that plot, not Nucor. And while the complaint

alleges that Nucor “urg[ed]” officials to come up with a plan to terminate the lease by October 1,

it does not say, nor can we reasonably infer from the allegations in the complaint, that the company

pressured officials to do anything illegal.3

       The farmers argue that it is enough that Nucor “was aware of and approved” the plan. And

they’re right that “[t]here is no technical requirement as to the kind of conduct that may result in

interference.” Restatement (Second) of Torts § 766 cmt. k.; see id. § 766B cmt. e. But the farmers’

theory goes a step too far: If approval of another’s interference alone sufficed, then there need not

be any “conduct” at all. Contra Hornung, 

 (“[T]o prevail a party seeking

recovery must show malice or some significantly wrongful conduct.”).            A rule prohibiting

interference would be mutated into a duty to prevent others from interfering. The farmers offer no

authority for that position. The dearth of precedent shouldn’t be surprising; the common law has

long recognized that inaction usually cannot create tort liability, James v. Wilson, 

,

889–90 (Ky. Ct. App. 2002); Restatement (Second) of Torts § 314.

       In concluding that the complaint alleges more than just “awareness and approval,” the

dissent relies on a footnote in Nucor’s appellate brief that rephrases the farmers’ complaint.

Dissent Op. at 18 (quoting Appellee Br. at 21 n.11). But according to the complaint, the Fiscal

Court—not Nucor—“plot[ted] to stack the Riverport Authority” with stooges; and Nucor’s




3
  For that reason, we fail to see why it would matter that Nucor allegedly gave “formal sanction
to” the officials’ plan. Dissent Op. at 18. Nucor allegedly sanctioned a plan to secure a favorable
vote, not to break the law in the process.
                                                -10-
No. 21-5989, Fackler v. Greenland Acquisition Co.


insistence on the October 1 deadline caused “the Fiscal Court and Development Authority”—

again, not Nucor—to “conceive[]” of that plot. The district court properly dismissed this claim.4

                                                 B.

       The farmers also appeal the dismissal of their claim for civil conspiracy. What the parties

call “civil conspiracy,” is, under Kentucky law, actually two distinct means of recovering from

multiple defendants for an underlying tort. The first is conspiracy, which requires the plaintiff to

show that the defendant agreed with another to do an unlawful act and that the plaintiff’s damages

resulted from an overt act done in furtherance of the conspiracy. James, 

. The

second is aiding and abetting, which requires the plaintiff to show that the defendant knowingly

gave substantial assistance or encouragement to another’s commission of a tort. Miles Farm

Supply, LLC v. Helena Chem. Co., 

 (6th Cir. 2010) (applying Kentucky law).

See also Farmer v. City of Newport, 

 (Ky. Ct. App. 1988) (adopting

Restatement (Second) of Torts § 876, which groups both theories under the label “concert of

action”).

       The two theories have some elements in common, however. Both depend on some

underlying tortious conduct. See James, 

 (conspiracy); Steelvest, Inc. v. Scansteel

Serv. Ctr., Inc., 

 (Ky. 1991) (aiding and abetting). And both require a culpable

mental state. Specifically, because co-conspirators must agree to commit “an unlawful act,”

James, 

, Kentucky courts have recognized that conspiracy liability requires

“specific intent.” Cath. Health Initiatives, Inc. v. Wells, No. 2016-CA-001919-MR, 

  The dissent concludes that the district court erred by dismissing the complaint for failure to state
a claim but neglects the portion of Nucor’s brief arguing that it is immune from liability under the
Noerr–Pennington doctrine. This pure question of law was raised below and fully briefed by both
parties on appeal. And if Nucor’s defense is valid, then, of course, it cannot be liable. The dissent
offers no reason for bypassing this potentially dispositive question.
                                                -11-
No. 21-5989, Fackler v. Greenland Acquisition Co.


3798562, at *5 (Ky. Ct. App. 2018) (unpublished). In other words, one cannot negligently join a

conspiracy, id.; rather, he must know of and intend to further the conspiracy’s tortious objective,

see Peoples Bank of N. Ky., Inc. v. Crow Chizek & Co., 

 (Ky. Ct. App. 2008)

(affirming dismissal of conspiracy claim where there was no evidence that the defendants “were

active, knowing participants” in the underlying fraud). The Restatement, we note, shares that

view: A co-conspirator must agree “to a common design or plan for cooperation in a tortious line

of conduct or to accomplish a tortious end.” Restatement (Second) of Torts § 876 cmt. b. So do

prominent commentators. See, e.g., W. Page Keeton et al., Prosser and Keeton on The Law of

Torts § 46 (5th ed. 1984) (“It is . . . essential that each particular defendant . . . shall be proceeding

tortiously, which is to say with the intent requisite to committing a tort.”); Dan B. Dobbs, et al.,

Dobbs’ Law of Torts § 435, Westlaw (database updated June 2021) (noting conspirators must agree

“to pursue a common illegal design”). Likewise, aiding-and-abetting liability arises only if the

defendant knew it was assisting or encouraging tortious conduct. See Miles Farm Supply, 

; Steelvest, 

; Restatement (Second) of Torts § 876 cmt. d (liability

arises only “if the act encouraged is known to be tortious”).

        The parties dispute whether the actions of the Fiscal Court and Development Authority

constitute a tort on which the farmers’ conspiracy and aiding-and-abetting theories can stand. But

we need not reach that issue because both theories fail for a different reason: The farmers have

not alleged that Nucor had the requisite state of mind. They have neither alleged that Nucor agreed

to “cooperat[e] in a tortious line of conduct or to accomplish a tortious end,” nor that Nucor aided

and abetted an act “known to be tortious.” Restatement (Second) of Torts § 876 cmt. b, d. Under

either theory, Nucor did not allegedly know of the critical facts rendering the officials’ actions

tortious.


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No. 21-5989, Fackler v. Greenland Acquisition Co.


       The farmers contend that the Fiscal Court and Development Authority officials tortiously

interfered with their expected grain sales through the scheme to rig the Riverport Authority vote—

from replacing dissenting members with yes-men, to publishing a deliberately vague meeting

agenda, to voting without a quorum. What makes the interference improper, the farmers say, is

that those actions violated Kentucky law. See Restatement (Second) of Torts § 767 cmt. c. But

they violated the law only if the dissenting members’ terms had not expired, the agenda was too

terse, and the vote was quorum-less. Those key facts separate the illegal from the innocuous. For

Nucor to be liable on a conspiracy or aiding-and-abetting theory, then, it had to know of those

circumstances. While Nucor allegedly knew about “the plan” to replace the dissenting members,

the complaint stops short of asserting that Nucor knew of these critical details. Nor are there any

allegations from which we could infer such knowledge. To the contrary, the complaint asserts that

the government officials, not Nucor, “conceived” of the scheme, and the critical facts allegedly

came to bear at a Fiscal Court meeting at which Nucor was not present.5

       The dissent highlights the complaint’s allegation that Nucor “knew and understood” that

the Riverport Authority’s vote “was obtained through improper, unjustified, and unlawful acts.”

Dissent Op. at 19 (quoting R. 1, PageID 8). As the verb tense shows, and as the context of the

complaint reveals, these allegations concern Nucor’s knowledge after the scheme had played out.

But to be liable Nucor would have had to know—when it joined the conspiracy or provided

substantial encouragement—that the local officials’ conduct was tortious. See Cath. Health,



5
  In their appellate brief, the farmers argue for the first time that Nucor’s execution of the lease
termination agreement in December 2019—when it did allegedly know that the termination “was
obtained through improper, unjustified, and unlawful acts”—constituted substantial assistance in
the public officials’ tortious interference. This argument is forfeited because the farmers failed to
raise it before the district court. United States ex rel. Maur v. Hage-Korban, 

(6th Cir. 2020).
                                                -13-
No. 21-5989, Fackler v. Greenland Acquisition Co.

, at *5 (reversing denial of directed verdict on civil conspiracy claim where

there was no evidence of the unlawful act that the defendants “agreed upon”); cf. Rosemond v.

United States, 

 (2014) (explaining that courts can infer a defendant’s intent to aid

and abet a crime from his “advance knowledge” of the relevant facts). The complaint makes no

such allegation. Without knowing, in advance, the facts that made the officials’ conduct tortious,

Nucor cannot be liable.

                                                ***

       The plight of the Meade County farmers is not lost on us. If the alleged facts are true, they

lost out both because of legitimate economic competition and corrupt local politics. The law’s

encouragement of the former does not excuse the latter. But even if the Fiscal Court and

Development Authority engaged in the chicanery the farmers have alleged, the defendant in this

case is Nucor. And the complaint does not sufficiently allege either that Nucor itself tortiously

interfered with the farmers’ contracts, or that it conspired with or aided the local officials in doing

so.

       We AFFIRM.




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No. 21-5989, Fackler v. Greenland Acquisition Co.


       CLAY, Circuit Judge, dissenting.       Concocting a plan to illegally oust sitting local

government officials, replace them with puppets, hold illegal government meetings, and illegally

vote on issues of public importance is plainly improper as that term is used in the Restatement

(Second) of Torts § 767. Because the complaint alleges that Defendants took part in just such a

scheme, the district court erred in dismissing Plaintiffs’ claims under Federal Rule of Civil

Procedure 12(b)(6). Therefore, I respectfully dissent.

       Plaintiffs, local grain farmers around Brandenburg, Kentucky, grew and sold grain to

Consolidated Grain & Barge Co. (“CGB”) which operated a grain silo on land that it leased from

three local government entities: the Meade County Riverport Authority (“Riverport Authority”),

the Meade County Fiscal Court (“Fiscal Court”), and the Meade County – Brandenburg Industrial

Development Authority (“Development Authority”) (collectively, the “Local Entities”).

Defendants Greenland Acquisition Co. and Nucor Corporation (collectively, “Nucor”) wanted to

pay CGB to end its lease so that Nucor could use the land to build a steel factory. Some of the

Local Entities thought this was a good idea, but the Riverport Authority worried about the effect

on local grain farmers.

       Because the Riverport Authority had the power to hold up the entire deal, Nucor worked

with the Fiscal Court and the Development Authority to concoct a plan to prematurely terminate

CGB’s lease on the Riverport property. “[N]ucor pressured the Fiscal Court and Development

Authority to make the Riverport Authority sign the lease Termination Agreement by October 1[,

2019].” (Compl., R. 1, Page ID #6.) “In an email of September 27[, 2019], Nucor representative

Johnny Jacobs told the county officials that Nucor needed ‘results’ and stressed that the Lease

Termination Agreement must be ‘fully resolved by end of day Tuesday [October 1] at latest.” (Id.)

That gave the Fiscal Court and the Development Authority only one week to get the Riverport


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No. 21-5989, Fackler v. Greenland Acquisition Co.


Authority on board with kicking CGB out and leasing the land to Nucor. “[B]ecuase of Nucor’s

urging, the Fiscal Court and Development Authority conceived of a plot to remove two of the

objecting Riverport Authority members.” (Id.) “Nucor was aware of and approved the plan to

replace” those two officials with members that were “pre-selected to vote in favor of the Lease

Termination Agreement.” (Id.) The complaint further alleged that this replacement “was blatantly

illegal” because the incumbent members’ terms had not expired. (Id. at Page ID #7.)

       In summary, Plaintiffs alleged that “[a]t Nucor’s behest, the Fiscal Court plot[ed] to stack

the Riverport Authority with political favorites in order to terminate the Lease.” (Id. at Page ID

#8.) The complaint also alleged that Nucor approved other “improper, unjustified, and unlawful

acts,” including violations of Kentucky’s Open Meetings Act and an illegal vote to terminate the

Lease and sell the land to Nucor. (Id.) Plaintiffs sued Defendants for intentional interference with

a prospective contractual agreement and civil conspiracy under Kentucky law. Nucor then moved

to dismiss the case for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). The

district court granted Nucor’s motion and dismissed the suit.

       To survive a motion to dismiss on a claim for intentional interference with prospective

contractual relations under Kentucky law, a plaintiff must allege facts showing (or allowing one

to reasonably infer) that the defendant intentionally and improperly interfered with the plaintiff’s

prospective contractual relations. Harrodsburg Indus. Warehousing, Inc. v. MIGS, LLC, 

 (Ky. Ct. App. 2005) (quoting Restatement (Second) of Torts § 766B (1979)). In

a nutshell, the issue in this case is whether Nucor acted improperly. Kentucky turns to § 767 of

the Restatement when deciding whether the defendant’s conduct was improper. NCAA ex rel.

Bellarmine Coll. v. Hornung, 

 (Ky. 1988). The Restatement lists several

factors to consider, including the defendant’s motive and the nature of the conduct.            See


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No. 21-5989, Fackler v. Greenland Acquisition Co.


Restatement (Second) of Torts § 767. Under Kentucky law, “a party seeking recovery must show

malice or some significantly wrongful conduct.” Hornung, 

 (emphasis added).

“[W]hen there is room for different views, the determination of whether the interference was

improper or not is ordinarily left to the jury, to obtain its common feel for the state of community

mores and for the manner in which they would operate upon the facts in question.” Restatement

(Second) of Torts § 767 cmt. l. Thus, the impropriety analysis is based on fact intensive inquiries

concerning community values and morals. Therefore, courts must not insert their own notions of

right and wrong to make sweeping legal conclusions in this context.

       Applying these standards, the complaint alleges facts that would allow a factfinder to

conclude that Nucor engaged in “some significantly wrongful conduct.” Hornung, 

. Everyone involved, including the majority and Nucor, agrees that taking part in a scheme of

government corruption amounts to significantly wrongful conduct. Thus, there is no question that

the complaint alleges that the Fiscal Court and the Development Authority engaged in wrongful

conduct. But the majority says that the complaint makes no such allegations specifically against

Nucor. This conclusion flies in the face of well established pleading rules whereby courts “must

accept the factual allegations in the complaint as true and construe the complaint in the light most

favorable to the plaintiff.” Lipman v. Budish, 

 (6th Cir. 2020) (citing Hill v. Blue

Cross & Blue Shield of Mich., 

 (6th Cir. 2005)).

       The majority’s analysis is flawed for two reasons. First, it concludes, without any support,

that a defendant cannot be liable merely because he was “was aware of and approved” of another’s

wrongful conduct (here, corrupt local government activity). The majority admits, as it must, that

Nucor “knew and understood” that the Local Entities were using “improper, unjustified, and

unlawful acts” to get Nucor what it wanted. Yet it confusingly suggests that that “awareness” and


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No. 21-5989, Fackler v. Greenland Acquisition Co.


“approval” are not “conduct” at all, and Nucor cannot be liable for something it did not do. But

by approving the Fiscal Court and the Development Authority’s corrupt plan, Nucor gave “formal

sanction to” the illegal conduct. Approve, Black’s Law Dictionary (11th ed. 2019). That is a far

cry from the majority’s implausible theory that Nucor simply turned a blind eye. Perhaps in the

majority’s eyes formally sanctioning and incentivizing allegedly corrupt and illegal government

activity is not “significantly wrongful conduct,” but I would beg to differ. This is precisely why

the issue of impropriety is “ordinarily left to the jury, to obtain its common feel for the state of

community mores.” Restatement (Second) of Torts § 767 cmt. l.

       That brings us to the majority’s second error. The complaint makes several more specific

allegations about Nucor’s wrongful conduct beyond mere awareness and approval. As the

majority admits, Plaintiffs’ claims must survive if one could “reasonably infer from the allegations

in the complaint[] that [Nucor] pressured officials to do anything illegal.” (Majority Opn. at 10.)

Nucor’s own description of certain facts shows that it did, in fact, pressure officials to engage in

illegal and corrupt conduct:

       [T]he Complaint alleges . . . that Nucor “plot[ed] to stack the Riverport Authority
       with political favorites in order to terminate the Lease,” and urged government
       officials to “conceive[] a plot to remove” [two of the existing members] from the
       Riverport Authority.

(Def. Br. at 21 n. 11 (quoting Compl., R. 1, Page ID #6–8) (emphasis added).) Plotting to stack

the deck by pressuring the Local Entities to remove two government officials and appoint puppets

to replace them screams of wrongfulness and impropriety. See Restatement (Second) of Torts

§ 768 cmt. c (“Conduct . . . contrary to established public policy may for that reason make an

interference improper.”). And, contrary to the majority’s assertion, the complaint makes clear that

Nucor was in on the plan before the allegedly illegal conduct transpired. “On the afternoon of

October 1,” before the illegal meeting and vote, “Nucor had a phone call with leaders of the Fiscal

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No. 21-5989, Fackler v. Greenland Acquisition Co.


Court and Development Authority in which . . . they discussed the plan to secure the vote that

night.”1 (Compl., R. 1, Page ID #6.) At the very least, Nucor urged the Local Entities to do

whatever they had to do, using any means necessary, to terminate the lease in a short period of

time despite a mountain of regulatory red tape standing in the way. Therefore, the district court

erred in dismissing Plaintiffs’ intentional interference claim on this basis.

       The majority attempts to explain away these allegations by concluding that “Nucor did not

allegedly know of the critical facts rendering the officials’ actions tortious.” (Majority Opn. at

12.) But the complaint specifically alleges that Nucor was aware of each allegedly wrongful act

including plotting to stack the Riverport Authority, calling an illegal special meeting, and

terminating the Lease without the quorum required to do so. That suffices at the motion to dismiss

stage. Indeed, had this case proceeded to discovery, it seems likely that Plaintiffs could have, and

perhaps likely would have, unearthed troves of evidence outlining the extent of Nucor’s

participation and knowledge in the alleged corruption.

       These same allegations also support Plaintiffs’ civil conspiracy claim. To survive a Rule

12(b)(6) motion on this claim, Plaintiffs must plausibly allege facts showing (or allowing one to

infer) that the defendant joined “a corrupt or unlawful combination or agreement between two or

more persons to do by concert of action an unlawful act,” James v. Wilson, 

(Ky. Ct. App. 2002) (quoting Smith v. Bd. of Educ. of Ludlow, 

 (Ky. 1936)),

or that the defendant substantially assisted or encouraged another’s commission of a tort, Miles


1
  The majority buys into a forgiving narrative that paints Nucor as an oblivious bystander. Given
that the factual assertions in the complaint directly contradict that narrative, the majority goes out
of its way to view the facts in Nucor’s favor. For example, the majority ignores the allegations
concerning this October 1 phone call and relies on “verb tense” and “the context of the complaint”
to conclude that Nucor only learned of the wrongfulness of the scheme after the fact. In doing so,
the majority blatantly disregards well settled principles governing motions to dismiss. See Lipman,

 (citing Hill, 

).
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No. 21-5989, Fackler v. Greenland Acquisition Co.


Farm Supply, LLC v. Helena Chem. Co., 

 (6th Cir. 2010) (applying Kentucky

law). The complaint states that Nucor had specific knowledge about “improper, unjustified, and

unlawful” acts including “plotting to stack the Riverport Authority with political favorites,”

“calling an illegal special meeting in violation of the Open Meetings Act,” “replac[ing] Riverport

Authority members whose terms had not expired . . . with no rational or lawful basis,” and

“authoriz[ing] the Lease Termination Agreement without a lawful quorum.” (Compl., R. 1, Page

ID #8.) Indeed, the complaint alleges that the Local Entities engaged in these wrongful actions

“[a]t Nucor’s behest.” (Id.) Plaintiffs have thus sufficiently alleged facts to support their civil

conspiracy claim.

        For these reasons, I would reverse the district court’s order granting Defendants’ motion

to dismiss for failure to state a claim.




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