author: McKEE, Chief Judge.

text:
    FRATERNAL ORDER OF POLICE, LODGE 1; John Williamson; Anthony Galiazi; Charles J. Holland, also known as Chad, Appellants v. CITY OF CAMDEN; Scott Thomson, City of Camden Police Chief; Orlando Cuevas, City of Camden Police Inspector; Lieutenant Joseph Wysocki
    No. 15-1963
    United States Court of Appeals, Third Circuit.
    Argued January 12, 2016
    (Opinion Filed: November 17, 2016)

      Gregg L. Zeff, Esq. [Argued], Zeff Law Firm, 100 Century Parkway, Suite 305, Mount Laurel, NJ 08054, Attorneys for Appellants
    John C, Eastlack, Jr., Esq. [Argued], Daniel E. Rybeck, Esq., Weir & Partners, 457 Haddonfield Road, Suite 420, Cherry Hili, NJ 08002, Attorneys for Appellees
    Before: McKEE, Chief Judge, AMBRO and SCIRICA, Circuit Judges.

       Judge Theodore McKee concluded his term as Chief of the United States Court of Appeals for the Third Circuit on September 30, 2016. Judge Brooks Smith became Chief Judge on October 1, 2016

   OPINION OF THE COURT

McKEE, Chief Judge.

This case arises from a vigorous dispute between the Fraternal Order of Police, Lodge 1 as well as certain police officers (“Plaintiffs”) on one side, and the City of Camden, New Jersey and certain supervisory police personnel (“Defendants”) on the other. Plaintiffs claim that the City’s “directed patrols” policy constitutes an illegal quota system. Specifically, they allege that the policy violates New Jersey’s anti-quota law. They also accuse Defendants of illegal retaliation in violation of New Jersey’s Conscientious Employee Protection Act (“CEPA”), the First Amendment, and the Family and Medical Leave Act (“FMLA”).

The district court granted summary judgment to Defendants on all of Plaintiffs’ claims. For the reasons set forth below, we will reverse in part, affirm in part, and remand for further proceedings.

I. FACTS AND PROCEDURAL HISTORY

In 2008, Camden implemented a policy known as “directed patrols” requiring police officers to engage with city residents even though the residents are not suspected of any wrongdoing. The announced purpose of the program was to obtain information about the community while making the police presence more visible. The City claims that the purpose was also “to ensure that the maximum amount of resources was allocated to a proactive crime prevention strategy and better balance [the Police Department] response to community-generated calls.” The directed patrols program consisted of “a structured 15-20 minute deployment into a targeted area to accomplish a specific patrol or crime reduction function.” According to the City, the deployment was to last no more than 15 to 20 minutes absent extenuating circumstances. The policy also instructed officers to obtain personal information, such as the name and address of the individuals the officers interacted with, if the individuals agreed to provide it. During any encounter with residents, officers were also expected to “approach community members present and inquire about criminal activity or quality of life issues.”

According to the City, directed patrols in Camden were not new. “[T]he difference in the new system was that directed patrols would be tracked and recorded. Under the new violence reduction initiative, directed [pjatrols were to be logged by the [City’s] Computer Aided Dispatch System.”

In April 2009, Fraternal Order of Police, Lodge 1 filed a complaint against the City of Camden Police Department and the Attorney General of the State of New Jersey claiming Camden had imposed an unlawful quota policy. Officers on supplemental patrol were expected to conduct a minimum of twenty-seven directed patrols per shift and officers on regular patrol were expected to perform a minimum of eighteen. According to Plaintiffs, failure to comply with these numerical requirements is cause for disciplinary action. Plaintiffs claim that this results in a quota system of policing in violation of N.J.S.A. 40A:14-181.2.

The individual plaintiffs Officers Galiaz-zi, Holland, and Williamson further allege that Defendants violated CEPA by retaliating against them because they expressed their disagreement with the policy. Officers Galiazzi and Holland claim they were placed on a low-performer list for failure to comply with the policy. They also contend the retaliation included transfer from the elite unit, where they had been assigned, to regular patrol duty with a concomitant pay decrease. To support this assertion, they point out that another officer on the low performer list who did not object to the policy was not transferred. •

Officer Williamson, the President of Fraternal Order of Police, Lodge 1, claims Camden retaliated against him for leading a protest march to City Hall. Specifically, he asserts that the City retaliated by bringing disciplinary charges against him for purportedly accosting a nurse at a hospital and for failing to report that someone had a thumb drive with Camden Police Department information.

Plaintiffs also allege other forms of retaliation that included revocation of vacation time, disciplinary limits on sick leave, and surveillance by Camden’s Internal Affairs unit. Officer Holland claims that the restrictions on his sick leave also violated his rights under the FMLA. Finally, Plaintiffs assert that Camden’s retaliatory conduct also ran afoul of the First Amendment because the plaintiff-officers’ objections to the policy constitute protected speech.

New Jersey’s anti-quota law only prohibits numerical requirements for arrests or citations. Thus, Camden’s primary defense is that the patrols policy at issue here is not an illegal quota because it does not require a certain number of arrests or citations, only police-civilian interactions. In any event, Defendants argue that there was no causal connection between the plaintiff-officers’ objections and any adverse actions, and this precludes any violation of CEPA or Plaintiffs’ First Amendment rights.

As we noted at the outset, the district court granted Defendants’ motion for summary judgment in its entirety and entered judgment against all plaintiffs on all of their claims. The court concluded that New Jersey’s anti-quota statute is inapplicable to the patrols policy and thus cannot support Plaintiffs’ allegations of a quota. It dismissed Plaintiffs’ CEPA and First Amendment claims because it found that, even viewing the evidence in the light most favorable to Plaintiffs, they did not establish a causal link between their whistle-blowing activities and the alleged adverse actions. Finally, the court found Officer Holland failed to establish a prima facie FMLA violation because he did not show that he was precluded from using sick leave or that he was otherwise prejudiced by Camden’s actions. This appeal followed.

II. JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction over Plaintiffs’ federal claims pursuant to 28 U.S.C. § 1331. It had supplemental jurisdiction to hear their state law claims pursuant to 28 U.S.C. § 1367. The grant of summary judgment constitutes a final order. Thus, we have appellate jurisdiction under 28 U.S.C. § 1291.

We review grants of summary judgment de novo, applying the same standard as the district court. Accordingly, we view the evidence in the light most favorable to the nonmoving party. In doing so, we refrain from weighing the evidence and draw all reasonable inferences in the nonmovant’s favor. We will affirm the district court’s grant of summary judgment only if we conclude that there is no genuine dispute as to any material fact when the evidence is so viewed.

III. DISCUSSION

As summarized at the outset, Plaintiffs claim that the district court erred in dismissing their claims under (1) New Jersey’s anti-quota law; (2) CEPA; (3) the First Amendment; and (4) the FMLA. In addition, they argue that the district court erred when it ignored hearsay evidence and concluded that Defendants were entitled to judgment as a matter of law. We discuss each claim of error in turn.

A. Hearsay

The district court was troubled that some of the evidence Plaintiffs planned to produce at trial was hearsay. That evidence consisted of statements by the individual plaintiffs about statements other officers purportedly made concerning the alleged retaliation and the nature of the patrols. This evidence is hearsay. However, the court erred in refusing to consider it at the summary judgment stage. Its explanation for concluding. that it could not consider hearsay in ruling on a motion for summary judgment is limited to the following footnote;

Galiazzi and Holland state in their depositions that they were, told by other officers that they were transferred and investigated. because of what they wrote on their counseling forms with regard to the quota system. The Court cannot consider this inadmissible hearsay, and no affidavits or testimony from these officers is provided as part of the record.

We disagree. “[T]he rule in this circuit is that hearsay statements can be considered on a. motion for summary judgment if they are capable of being admissible at trial.” In ruling on a motion for summary judgment, the court need only determine if the nonmoving party can produce admissible evidence regarding a disputed issue of material fact át trial. The proponent need only “explain the admissible form that is anticipated.” Thus, in ruling on Defendants’ motion for summary judgment, the district court should have limited its inquiry to determining if the out-of-court statements Plaintiffs were relying on were admissible at trial, and they clearly were. Plaintiffs identified the out-of-court declarants—Sergeants Frett, Mof-fa, and Whitesell, and Lieutenants Cook and Strang—and noted their availability to testify.

In arguing to the contrary, Defendants rely in part on Philbin v. Trans Union Corporation. In Philbin, we explained that “Philbin is unable to identify the person who relayed this information to him.... Thus the hearsay statement by this unknown individual is not ‘capable of being admissible at trial,’ ... and could not be considered on a motion for summary judgment.” Here, Plaintiffs identified the third-party declarants, and nothing suggests that those declarants would be unavailable to testify at trial. That is all that was required to survive that aspect of Defendants’ motion for summary judgment.

We do not, of course, intend this ruling to control whether these out-of-court statements will actually be admitted at trial. That question need not be answered now. Accordingly, we will reverse the district court’s exclusion of hearsay in determining if the record allowed Plaintiffs to survive a motion for summary judgment

B. New Jersey Anti-Quota Law

Plaintiffs assert that' Camden’s patrols policy violates New Jersey’s anti-quota statute. That statute, entitled .“Quotas for arrests or citations prohibited; use of numbers in law enforcement officer evaluations,” provides in relevant part:

a. A State, county or municipal police department or force ... shall not establish any quota for arrests or citations. The department or force may, however, collect, analyze and apply information concerning the number of arrests and citations in order to ensure that a particular officer or group of officers does not violate any applicable legal obligation.
b. The department or force shall not use the number of arrests or citations issued by á law enforcement officer as the sole criterion for promotion, demotion, dismissal, or the earning of any benefit provided by the department or force. Any such arrests or citations, and their ultimate dispositions, may be considered in evaluating the overall performance of a law enforcement officer.

Plaintiffs claim that this statute applies to the directed patrols policy even though the statute’s text only addresses arrests and citations. Although the challenged patrols policy only requires civilian encounters, Plaintiffs claim that it is applied in a manner that also mandates citations. In arguing to the contrary, Camden claims that since the New Jersey law only applies to arrests and citations and the patrols policy has no such requirements, the policy is consistent with the New Jersey statute.

In granting summary judgment on this claim in favor of Camden, the district court correctly relied on the limited scope of the text of the statute—which does apply only to arrests and citations, and not to the civilian “encounters” that are at the center of this dispute. Accordingly, we will affirm the court’s grant of summary judgment in favor of Camden on Plaintiffs’ claims under the anti-quota law.

C. Conscientious Employee Protection Act

CEPA protects employees against retaliation by employers for whistleblow-ing activities. It provides in relevant part:

An employer shall not take any retaliatory action against an employee because the employee does any of the following: ... Objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes: (1) is in violation of a law, or a rule or regulation.

CEPA is remedial legislation and must therefore be construed liberally in employees’ favor.

New Jersey courts have created a four-pronged test for adjudicating CEPA claims that largely replicates the three-part burden-shifting test that is used to decide federal retaliation claims. To establish a CEPA violation, a plaintiff must prove that: (1) she reasonably believed her employer was violating a law or rule; (2) she performed a protected whistleblowing activity; (3) an adverse employment action was taken against her; and (4) there is a causal connection between the whistle-blowing activity and the adverse action. The district court found Plaintiffs’ CEPA claim failed because it was “deficient on at least two of the required elements,” namely, the first and last prongs. We disagree.

Plaintiffs correctly argue that the first prong only requires that they had a reasonable belief the policy was illegal. They need not prove an actual illegality. The court found the plaintiff-officers faltered here because, although they may have subjectively believed the policy was illegal, “that belie[f] was not objectively reasonable.” The court specified that “[a]ny officer who reads the clear and plain language of the statute would immediately understand that it only applies to ‘arrests’ and ‘citations,’ ... the directed patrol policy does not encompass arrests or citations.”

However, CEPA is not intended “to make lawyers out of conscientious employees but rather to prevent retaliation against those employees who object to employer conduct that they reasonably believe to be unlawful.” Requiring a showing that the anti-quota law actually applies to the written policy imposes an obstacle that is as unfair as it is unreasonable. These plaintiffs should not have to satisfy a standard that is more appropriate for someone with a law degree. Moreover, under CEPA “a plaintiff [need not even] allege facts that, if true, actually would violate that statute, rule, or public policy.” Thus, Plaintiffs clearly satisfied the first prong of their prima fade case for a CEPA violation. Summary, judgment on the CEPA claim was therefore not appropriate.

Camden attempts to reduce Plaintiffs’ proof on the second prong of CEPA to frivolity by arguing that the plaintiff-officers’ protests amount to nothing more than the whining of d “squeaky wheel” and by suggesting that CEPA is “a “Whistle-blower Act,’ not a ‘Chronic Complainer Act.’” This is offensive. Irrespective of the underlying validity of the plaintiff-officers’ claims, they certainly concern nontrivial matters. They allege workplace retaliation, as well ás a law enforcement policy with possible constitutional implications for matters of increasingly urgént public interest. We did not need the most recent controversies arising from attacks on police or police shootings of unarmed civilians to appreciate that the relationship between police officers arid residents in the high crime areas that they patrol is of the utmost importance. It is indeed unfortunate that the City chooses to view police officers with these kinds of concerns as “chronic complainers” and “squeaky wheels.”

Plaintiffs also satisfied their burden under the third prong. CEPA defines retaliation as including “discharge, suspension or demotion of an employee, or other adverse employment action taken against an employee in the terms and conditions of employment.” The record suggests that the plaintiff-officers’ transfers from the elite unit to regular patrol came with a change in duties and a decrease in pay and status. Accordingly, at this stage, these transfers are “demotions.” At the very least, they affect “the terins and conditions of employment” as required under CEPA. Thus, they qualify as adverse employment actions under CEPA’s third prong.

We do, however, conclude that not all of the disputed actions would constitute retaliation under CEPA. The district court was correct in finding that placement on an “abuse of sick time” list, the cancellation of a vacation, and a visit by an Internal Affairs officer do not rise to the level of adverse employment actions absent more than is alleged here. CEPA does encompass a range of retaliatory actions. Howevér, in order for actions to qualify under CEPA, they must have “impacted on the employee’s “compensation or rank’ or be ‘virtually equivalent to discharge.’” These additional actions fall short of that threshold.

Likewise, Officer Williamson’s allegations do not qualify as adverse action under CEPA. He contends that Camden retaliated against him in four ways: (1) reprimanding him for an incident in which he allegedly accosted a nurse; (2) charging him with a disciplinary action for not reporting that an attorney had a thumb drive with information about the Camden Police Department; (3) investigating him as a result of an .argument during a union meeting; and (4) investigating him for “procedural violations.” As the district court rightly noted, these actions did not affect Officer Williamson’s compensation or rank nor were they equivalent to discharge. Thus, only the plaintiff-officers’ claim of retaliatory transfers satisfies the third prong of CEPA.

Finally, CEPA’s fourth prong requires proof of a causal connection between the whistleblowing activity and the adverse employment action. The district court found that “[t]he missing fundamental element of plaintiffs’ NJ CEPA claims is the causal connection between their ‘whistleblowing’ and their adverse employment actions.” We disagree with several aspects of the district court’s analysis of this issue.

First, the district court concluded that the real reason for the adverse actions was deficient performance, not the plaintiff-officers’ objections. We fail to see how that factual conclusion negates the existence of a genuine issue of material fact. Rather, whether the adverse actions resulted from deficient performance or objections to the disputed policy is precisely the type of factual dispute that is inappropriate for summary judgment.

Second, the. district court afforded insufficient weight to the temporal proximity of the plaintiff-officers’ objections and the alleged retaliatory actions. Though we generally hold .that closeness in time alone cannot establish causation, we have found that close temporal proximity or an added factor making the closeness unusually suggestive can suffice. Here, Plaintiffs submitted evidence that the court should have viewed in the light most favorable to them. That evidence disclosed that some of their objections, were followed by adverse consequences within a matter of days. For instance, they asserted that “[d]espite Holland’s improved statistics, he was placed on the low performer list ... and transferred to regular patrol.... only days after he opposed his written counseling.” Retaliatory motive is often revealed by such evidence. At the very least, it certainly raises a question of fact for a jury.

The district court expressly refused to consider the testimonial evidence the plaintiff-officers submitted tending to show a link between their objections and the alleged retaliation. The court believed that evidence could not be considered because it was hearsay. We have already explained why that was error. For these reasons,- we will reverse the district court’s dismissal of the plaintiff-officers’ retaliatory transfer claims under CEPA.

D. First Amendment

The plaintiff-officers claim that Defendants violated them First Amendment rights by retaliating against them for objecting to the patrols policy. A' public employee’s statement is protected by the First Amendment when “(1) in making it, the employee spoke as a citizen, (2) the statement involved a matter of public concern, and (3) the government employer did not have ‘an adequate justification for treating the employee differently from any other member of the general public’ as a result of the statement he made.”

The plaintiff-officers provide compelling arguments to support their claim that their speech involved a matter of public concern.. They objected to the policy on police department counseling forms, writing, among other things, “QUOTA[]S ARE ILLEGAL!.” These writings were internal and arguably of a private nature, but that does not mean they do not pertain to a matter of public concern. Matters of public concern may overlap with personal grievances. Indeed, many employees may not be motivated to speak out on matters of public concern until they feel personally aggrieved by their, employer. When all else at work is going well, it is" the rarest of employees who is so altruistic that she will risk her livelihood to object to a matter of public concern. The law does not, and should not, ignore legitimate claims of retaliation merely because the employee is less than pleased in the workplace.

In addition, as the Supreme Court stressed in Pickering, “free and open debate is vital” to matters of legitimate public concern. The disputed policy here directly affects how police officers interact with the public, especially with residents of crime infested communities. That is not only a matter of public interest, it has become a matter of the utmost importance. Therefore, restriction of the plaintiff-officers’ right to voice their opinions cannot be taken lightly—“freedom of speech is not traded for an officer’s badge.”

The district court reasoned that, “even accepting that plaintiffs’ opposition to the directed patrol policy was a matter of public concern, plaintiffs cannot meet the other two elements of their First Amendment violation claims.” The court concluded that their First Amendment claims failed for lack of causation for the same reasons as their CEPA claims. We have already explained why the court erred in dismissing the CEPA claims. Nevertheless, we agree with the district court that the plaintiff-officers’ First Amendment claims cannot proceed.

The Supreme Court has explained that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Here, the plaintiff-officers were not speaking as citizens when they wrote on the counseling forms. Citizens do not complete internal police counseling forms. Rather, completing counseling forms as part of the police disciplinary process falls under officers’ official duties. Therefore, the plaintiff-officers’ speech here “owe[d] its existence to [their] public employee[] professional responsibilities.”

Because the plaintiff-officers were not speaking as citizens, if their supervisors thought the writings were “inflammatory or misguided, they had the authority to take proper corrective action.” Though the First Amendment provides robust protection to statements pertaining to matters of public concern, it does not empower public employees to “constitutionalize the employee grievance” when they are acting in their official capacities. Accordingly, we will affirm the court’s dismissal of the plaintiff-officers’ First Amendment claims.

E. Family and Medical Leave Act

The FMLA affords eligible employees “a total of 12 workweeks of leave during any 12-month period” in order to tend to “a serious health condition that makes the employee unable to perform the functions of the position.” In addition, employees are entitled to FMLA leave to care for a family member with a serious health condition. It is “unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided” in the FMLA. A claim that these rights have been breached is referred to as “interference.”

Officer Holland alleges that he was approved for FMLA leave to care for his seriously ill mother in May 2009. However, on May 27 he was orally warned that he was using too much leave. Then, on June 17 he received a letter from a Lieutenant stating he was being placed in the “Chronic Sick Category.” When he informed the Lieutenant of his approved FMLA leave, the Lieutenant said the.Inspector did not care if it was approved and Officer Holland would continue to be placed in the category and would eventually be disciplined. Officer Holland also asserts that Camden staff visited him at home while he was on leave.

Officer Holland claims these actions interfere with protected FMLA leave. He argues that a DOL regulation provides an expanded definition of FMLA interference as including not only denying leave, but also deterring an employee from using it. This regulation provides that “[i]nterfering with the exercise of an employee’s rights would include, for example, not only refusing to authorize FMLA leave, but discouraging an employee from using such leave.” Camden granted Officer Holland’s request for FMLA leave to care for his mother. However, Officer Holland claims that, pursuant to this regulation, a reasonable trier of fact could find that Camden’s placing him on a chronic sick list and threatening to discipline him chilled the assertion of his FMLA rights.

Camden contends that this “interference” was in part an internal miscommuni-cation. According to Camden, Officer Holland was questioned about his use of leave because one branch of the department was unaware this leave had been approved under the FMLA. Camden further asserts that none of its actions were “sufficient to deter a person of ordinary firmness from exercising [their] right[s].”

Camden officials only visited Officer Holland once while he was on leave, and we agree that this was minimally intrusive. Without more, we agree that Camden’s conduct is not actionable under the FMLA. Although we are sympathetic to Officer Holland’s family situation, “there is no right in the FMLA. to be ‘left alone.’ ” Camden’s actions may have been insensitive, but they were not beyond the limitations the FMLA places on employers attempting to manage their workplaces.

Officer Holland’s claim is also doomed by an insufficient showing of injury. The FMLA “provides no relief unless the. employee has been prejudiced by the violation.” The only case Officer Holland cites to the contrary is Shtab v. Greate Bay Hotel. There, the district court found a jury could conclude that denial of immediate FMLA leave for' an employee who had just returned to work constituted interference. Shtab does not support Officer Holland’s claim that reprimands such as those he alleges can, on their own, support relief under the FMLA. Rather, they must occur in tandem with actual harm. Officer Holland does not allege he was actually denied FMLA leave. In fact, he concedes that he was able to take time off to care for his mother. Accordingly, the court was correct in granting summary judgment against Officer Holland. '

F. Qualified Immunity

In addition to suing the City of Camden, Plaintiffs also sued several officers iri their individual capacities. Those officers objected to the suits on the ground that they are protected by qualified immunity. The doctrine of qualified immunity “shields government officials from civil damages liability unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct.” In assessing ■ qualified immunity claims, we conduct a two-part inquiry. We must first determine whether the facts demonstrate the violation of a right. If they do, we must then decide if the right at issue was clearly established at. the time of the alleged misconduct. According to Defendants, Plaintiffs’ claim fails the first part of the test because, as the rest of the case makes clear, no rights were violated.

The district court agreed that the doctrine of qualified immunity shields these individual officers from suit. It explained: “Because the Court finds that plaintiffs cannot support their claims that defendants violated their constitutional rights, the qualified immunity analysis ends there.”

We agree with the district court’s conclusion that qualified immunity depends, in part, on whether a legal violation occurred. Since Plaintiffs have not shown a violation of federal law, we need not reach the issue of qualified immunity.

IV. CONCLUSION

For the foregoing reasons, we will reverse the district court’s order granting summary judgment to Defendants on Plaintiffs’ CEPA claims. We will remand for proceedings consistent with this opinion. We will affirm the district court’s dismissal of Plaintiffs’ New-Jersey anti-quota law, First Amendment claims, and Officer Holland’s FMLA claim.

      . Defendants’ Br. at 1.

      . Id.

      . Id. at 2.

      . Id. at 1.

      . N.J. Stat. Ann. § 40A-.14-181.2 (West).

      . Fraternal Order of Police, Lodge 1 v. City of Camden, No. CIV. 10-1502 NLH AMD, 2015 WL 1471800, at *4 (D.N.J. Mar. 31, 2015).

      . Id. at *7.

      . Id. at *8.

      . Id. at ⅜9.

      . See Montone v. City of Jersey City, 709 F.3d 181, 189 (3d Cir. 2013).

      . See Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004).

      . Fed. R. Civ. P. 56(a).

      . Fraternal Order of Police, 2015 WL 1471800, at *5 n.9.

      . Stelwagon Mfg. Co. v. Tarmac Roofing Sys., 63 F.3d 1267, 1275 n.17 (3d Cir. 1995) (emphasis added); see also Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ("We do not mean that the non-moving party must produce evidence in a form that would be admissible at trial in order to avoid summary judgment.”); Shelton v. Univ. of Med. & Dentistry of N.J., 223 F.3d 220, 223 n.2 (3d Cir. 2000) ("In this circuit, hearsay statements, can be considered on a motion for summary judgment if they are capable of admission at trial.”).

      . Fed. R. Civ. P. 56(c)(2),

      . Fed. R. Civ. P, 56 advisory committee’s note to 2010 amendment.

      ,. 101 F.3d 957 (3d Cir. 1996).

      . Id. at 961 n.l.

      . See Blackburn v. United Parcel Serv., Inc., 179 F.3d 81, 102 (3d Cir, 1999) ("We will assume that Blackburn's testimony regarding what Zileski told him was effectively a proffer of the testimony that Zileski himself would give at trial, and we therefore treat this as evidence capable of being admitted at trial.”); J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1542 (3d Cir. 1990) (“[T]here is no indication that Spagnola's salesforce would be unavailable to testify at trial. [Thus t]he averments of Spagnola's affidavit are capable of proof through admissible evidence.”).

      .N.J. Stat. Ann. § 40A:14-181.2 (West) (emphases added).

      . NJ. Stat. Ann. § 34:19-3 (West).

      . See Blackburn v. United Parcel Serv., Inc., 179 F.3d 81, 91 (3d Cir. 1999) (“The New Jersey courts have repeatedly held that CEPA was enacted 'to protect employees from retaliatory actions by employers.’ ”) (internal citation omitted).

      . See Caver v. City of Trenton, 420 F.3d 243, 254 (3d Cir. 2005).

      . Id.

      . Fraternal Order of Police, 2015 WL 1471800, at *4.

      . See Blackburn, 179 F.3d at 94 n.4; Dzwonar v. McDevitt, 177 N.J. 451, 828 A.2d 893, 901 (2003).

      . Fraternal Order of Police, 2015 WL 1471800, at *4.

      . Id.

      . See Blackburn, 179 F.3d at 94 n.4 (internal citation omitted).

      . Dzwonar, 828 A.2d at 901.

      . Blackburn v. United Parcel Serv., Inc., 3 F.Supp.2d 504, 517 (D.N.J, 1998) aff'd, 179 F.3d 81 (3d Cir. 1999).

      . In fact, Camden's own case law citations highlight the seriousness of the plaintiff-officers’ allegations. For instance, Camden cites a case that explains that an employee could not reasonably believe extended lunch breaks or personal phone calls would fall under CEPA, and complaints about such matters are not a protected whistleblowing activity. Estate of Roach v. TRW, Inc., 164 N J. 598, 754 A.2d 544, 552 (2000). The allegations here are far weightier, and thus fall more squarely within CEPA’s purview.

      . See Julie Turkewitz, Baton Rouge Grapples with Anxiety and Grief Amid Vigils for Officers, N.Y. Times (July 19, 2016), http://www. nj4imes.com/2016/07/20/us/baton-rouge-louisiana-shooting.html; Kimberly Kindy et al., A Year of Reckoning: Police Fatally Shoot Nearly 1,000, Wash. Post (Dec. 26, 2015), http://www.washingtonpost.com/sf/ investigative/wp/2015/12/26/2015/12/26/a-year-of-reckoning-police-fatally-shoot-nearly-1000/.

      . N.J. Stat. Ann, § 34:19-2(e) (West).

      . Fraternal Order of Police, 2015 WL 1471800, at *6.

      . Caver v. City of Trenton, 420 F.3d 243, 255 (3d Cir. 2005) (internal citation omitted).

      . Fraternal Order of Police, 2015 WL 1471800, at *7.

      . Id. at *4.

      . Id. at *5-6.

      . See Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280 (3d Cir. 2000) ("[TJemporal proximity alone will be insufficient to establish the necessary causal connection when the temporal relationship is not 'unusually suggestive.' ”).

      . See Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989) ("He demonstrated the causal link between the two by the circumstance that the discharge followed rapidly, only two days later, upon Avdel’s receipt of notice of Jalil’s EEOC claim.").

      . See Krouse v. Am. Sterilizer Co., 126 F.3d 494, 503 (3d Cir. 1997) ("Even if timing alone could ever be sufficient to establish a causal link, we believe that the timing of the alleged retaliatory action must be ‘unusually suggestive’ of retaliatory motive before a causal link will be inferred.”).

      . See Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004).

      . See Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir. 1997) ("Cases in which the required causal link has been at issue have often focused on the temporal proximity between the employee's protected activity and the adverse employment action, because this is an obvious method by which a plaintiff can proffer circumstantial evidence ‘sufficient to raise the inference that her protected activity was the likely reason for the adverse action.’ '•’) (internal citation omitted).

      . Fraternal Order of Police, 2015 WL 1471800, at *5 n.9.

      . Gorum v. Sessoms, 561 F.3d 179, 185 (3d Cir. 2009) (quoting Hill v. Borough of Kutztown, 455 F.3d 225, 241 (3d Cir. 2006)).

      . App. 519a, See Feldman v. Phila. Hous. Auth., 43 F.3d 823, 829 (3d Cir. 1994) ("Disclosing corruption, fraud, and illegality in a government agency is a matter of significant public concern.”).

      . See Rankin v. McPherson, 483 U.S. 378, 387 n.11, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987) ("The private nature of the statement does not ... vitiate the status of the statement as addressing a matter of public concern.”); Garcetti v. Ceballos, 547 U.S. 410, 420, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006) ("That Ceballos expressed his views inside his office, rather than publicly, is not dispositive. Employees in some cases may receive First Amendment protection for expressions made at work.”).

      . See Brennan v. Norton, 350 F.3d 399, 413 (3d Cir. 2003) ("Common sense suggests that public employees, no less than other employees, will be more likely to speak out when they are disgruntled or personally dissatisfied with some aspect of their employment or employer.”).

      . See id. at 412 ("This does not, however, suggest that speech which is motivated by private concern can never qualify as protected speech. It clearly can if it addresses a matter that concerns the public as well as the speaker.").

      . Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, Will Cty., Ill, 391 U.S. 563, 571-72, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968).

      . Biggs v. Vill. of Dupo, 892 F.2d 1298, 1303 (7th Cir. 1990).

      . Fraternal Order of Police, 2015 WL 1471800, at *8.

      . Id. ("For the same reasons explained above with regard to their NJ CEPA claims, plaintiffs have not provided sufficient evidence to go to a jury that their speech was a substantial or motivating factor in the alleged retaliatory actions, or that the Camden Police Department would not have taken the same action even if the speech had not occurred. Consequently, defendants are entitled to summary judgment on plaintiffs' First Amendment violation claims.").

      . Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006) (emphasis added).

      . Gorum v. Sessoms, 561 F.3d 179, 185 (3d Cir. 2009) (citation omitted).

      . Garcetti, 547 U.S. at 423, 126 S.Ct. 1951.

      . Connick v. Myers, 461 U.S. 138, 154, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983).

      . We will also affirm the district court's dismissal of the plaintiff-officers' New Jersey Constitution First Amendment claim, which the court premised on identical grounds. Fraternal Order of Police, 2015 WL 1471800, at *8 n.12. Because the district court also based its dismissal of the plaintiff-officers’ § 1983 claim on its rejection of their First Amendment claim, we will affirm the district court's § 1983 holding as well. Id. at *8 n.13 ("Because plaintiffs cannot sustain their First Amendment claims, their claims against the City of Camden also fail”).

      . 29 U.S.C. § 2612(a)(1).

      . 29 U.S.C. § 2612(a)(1)(D).

      . 29 U.S.C. § 2612(a)(1)(C).

      . 29 U.S.C. § 2615(a)(1).

      . Two types of claims can arise under the FMLA, retaliation (29 U.S.C. § 2615(a)(2)) and interference (29 U.S.C. § 2615(a)(1)). See Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 301 (3d Cir. 2012). Officer Holland's claim sounds in interference.

      . Officer Holland also advances an FMLA claim pursuant to New Jersey’s FMLA, N.J. Stat. Ann. § 34U1B-9 (West). Analysis of Officer Holland's claim is the same under the federal and state FMLAs. Accordingly, our assessment under the federal FMLA covers both claims.

      . 29 C.F.R. § 825.220(b) (emphasis added).

      . Callison v. City of Phila., 430 F.3d 117, 121 (3d Cir. 2005).

      . Id. at 120.

      . Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89, 122 S.Ct. 1155, 152 L.Ed.2d 167 (2002).

      . 173 F.Supp.2d 255 (D.N.J. 2001).

      . Id. at 258-59, 267-68.

      . See Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 143 (3d Cir. 2004) (finding that an employee would only be able to prove FMLA interference if he established that the employer’s actions rendered "him unable to exercise that right in a meaningful way, thereby causing injury”) (emphasis added).

      . Police Chief Scott Thomson, Inspector Orlando Cuevas, and Lieutenant Joseph Wy-socki.

      . Reichle v. Howards, 566 U.S. 658, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012).

      . See Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).

      . Fraternal Order ■ of Police, 2015 WL 1471800, at *7 n.ll.


source: Caselaw Access Project

author: AMBRO, Circuit Judge

license: Public Domain

text:
    IN RE: ENERGY FUTURE HOLDINGS CORP., a/k/a TXU Corp. a/k/a TXU Corp a/k/a/ Texas Utilities, et al., Debtors Delaware Trust Company, f/k/a CSC Trust Company of Delaware, as Indenture Trustee, Appellant v. Energy Future Intermediate Holding Company LLC; EFIH Finance Inc.; Ad Hoc Committee of EFIH Unsecured Noteholders In re: Energy Future Holdings Corp., a/k/a TXU Corp. a/k/a TXU Corp a/k/a Texas Utilities, et al., Debtors Computer Trust Company, NA & Computershare Trust Company of Canada, Appellants v. Energy Future Intermediate Holding Company LLC; EFIH Finance Inc.
    No. 16-1351
    Nos. 16-1926, 16-1927 & 16-1928
    United States Court of Appeals, Third Circuit.
    Argued September 27, 2016
    (Opinion filed November 17, 2016)

      Philip D. Anker, Esquire (Argued), Wilmer Cutler Pickering Hale and Dorr LLP, 7 World Trade Center, 250 Greenwich Street, New York, NY 10007, Danielle Spi-nelli, Esquire, Joel Millar, Esquire, David Gringer, Esquire, Isley Gostin, Esquire, Wilmer Cutler Pickering Hale and Door LLP, 1875 Pennsylvania Avenue, N.W., Washington, DC 20006, James H. Millar, Esquire, Drinker Biddle & Reath, 1177 Avenue of the Americas, 41st Floor, New York, NY 10036, Todd C. Shiltz, Esquire, Drinker Biddle & Reath LLP, 222 Delaware Avenue, Suite 1410, Wilmington, DE 19801-1612, Norman L. Pernick, Esquire, J. Kate Stickles, Esquire, Cole Schotz PC, 500 Delaware Avenue, Suite 1410, Wilmington, DE 19801, Counsel for Appellant Delaware Trust Company.
    Daniel J. DeFranceschi, Esquire, Jason M. Madron, Esquire, Mark D. Collins, Esquire, Richards Layton & Finger, 920 North King Street, One Rodney Square, Wilmington, DE 19801, Andrew R. McGaan, Esquire (Argued), James H.M. Sprayregen, Esquire, Marc Kieselstein, Esquire, Chad J. Husnick, Esquire, Steven N. Serajeddini, Esquire, Kirkland & Ellis, 300 North LaSalle Street, Suite 2400, Chicago, IL 60654, Edward O. Sassower, Esquire, Kirkland & Ellis LLP, 601 Lexington Avenue, New York, NY 10022, Michael A. Petrino, Esquire, Kirkland & Ellis, 655 15th Street, N.W., Suite 1200, Washington, DC 20005, Counsel for Appellees Energy Future Intermediate Holding Company LLC; EFIH Finance Inc.
    Joshua K, Brody, Esquire, Gregory A. Horowitz, Esquire (Argued), Thomas M. Mayer, Esquire, Jeffrey S. Trachtman, Esquire, Kramer Levin Natfalis & Frankel, 1177 Avenue of the Americas, New York, NY 10032, Laura D. Jones, Esquire, James E. O’Neill, III, Esquire, Robert J. Feinstein, Esquire, Pachulski Stang Ziehl ’& Jones, 919 North Market Street, P.O. Box 8705, 17th Floor, Wilmington, DE 19801, Stephanie Wickouski, Esquire, Bryan Cave LLP, 1290 Avenue of the Americas, New York, NY 10104-3300, Counsel for Appellants Computershare Trust Company, N.A.; Computershare Trust Company of Canada.
    Before: AMBRO, SMITH,  and FISHER, Circuit Judges

       Honorable D. Brooks Smith, United States Circuit Judge for the Third Circuit, assumed chief Judge status on October 1, 2016.

   OPINION OF THE COURT

AMBRO, Circuit Judge

We address what' happens when one provision of an indenture for money loaned provides that the debt is accelerated if the debtor files for bankruptcy and while in bankruptcy it opts to redeem that debt when another indenture provision provides for a redemption premium. Does the premium, meant to give the lenders the interest yield they expect, fall away because the full principal amount is now due and the noteholders are barred from rescinding the acceleration of debt? We hold no.

I. BACKGROUND

A. The Notes

Energy Future Intermediate Holding Company LLC and EFIH Finance Inc, (collectively, “EFIH”) borrowed in 2010 approximately $4 billion at a 10% interest rate by issuing Notes due in 2020 and secured by a first-priority lien on their assets (the “First Lien Notes”). To protect (at least in part) the lenders’ anticipated interest-rate yield, the Indenture governing the loan (the “First Lien Indenture”) provides in § 3.07, captioned “Optional Redemption,” that “[a]t any time prior to December 1, 2015, [EFIH] may redeem all or a part of the Notes at a redemption price equal to 100% of the principal amount of the Notes redeemed plus' the Applicable Premium . \. and accrued and unpaid interest” (emphasis in original). “Applicable Premium” is what we shall call the make-whole, or yield-protection, contractual substitute for interest lost on Notes redeemed before their expected due date.

The First Lien Indenture contains an acceleration provision in § 6.02 that makes “all outstanding Notes ... due and'payable immediately” if EFIH files a bankruptcy petition. The same provision also gives the First Lien Noteholders the right to “rescind any acceleration [of] the Notes and its consequences[.]”

EFIH borrowed funds again in. 2011 and 2012 by issuing two sets of Notes secured by a second-priority lien on its assets (the “Second Lien Notes”). As with the First Lien Noteholders, EFIH promised to pay holders of the Second Lien Notes (the “Second Lien Noteholders”) a make-whole premium—in a provision essentially identical to the one quoted above—if it chose to redeem the Second Lien Notes, at its option, on or before a date certain (May 15, 2016 for Second Lien Notes set to mature in 2021 and March 1,2017 for those maturing in 2022).

The Indenture for the' Second Lien Notes (the “Second Lien Indenture”) contains an acceleration provision different from § 6.02 of the First Lien Indenture: if EFIH files a bankruptcy petition, “all principal- of and premium, if any, interest ...[,] and any other monetary obligations on the outstanding Notes shall be due and payable immediately[.]” Second Lien Indenture § 6,02 (emphases added). Like the First Lien Noteholders, the Second Lien Noteholders have the right to “rescind any acceleration [of] the Notes and its consequences” under § 6.02.

B. Refinancing the First Lien Notes

When market interest rates went down, EFIH considered refinancing the Notes. Refinancing outside of bankruptcy would have required it to ■ pay the make-whole premium: See In re Energy Future Holdings Corp., 527 B.R. 178, 188 (Bankr. D. Del. 2015). By filing for bankruptcy, however, EFIH believed it might avoid the premium, So on November 1, 2013, it filed an 8-K form with the Securities and Exchange 'Commission “disclosing [its] proposal [whereby] ... EFIH would file for bankruptcy and refinance the Notes without paying any make-whole amount.” Id. (internal quotation marks omitted).

Six months later, on April 29, 2014, EFIH and other members of its -corporate family filed Chapter 11 bankruptcy petitions in the Bankruptcy Court for the District of Delaware. Once in bankruptcy, EFIH sought to “take advantage of highly favorable debt market conditions to refinance,” beginning with the First Lien Notes. Id. at 189. It asked the Bankruptcy Court for leave to borrow funds to pay them off and to offer a settlement to any of its First Lien Noteholders who agreed to waive their right to the make-whole. Id. at 182,189.

Fearing loss of the income stream EFIH had promised, the Trustee for the First Lien Noteholders—Delaware Trust Company—filed an adversary proceeding on May 15, 2014. It sought a declaration that refinancing the First Lien Notes would trigger the make-whole premium.

EFIH’s bankruptcy filing caused the “[First Lien] Notes [to] be[come] due and payable immediately” under Indenture § 6.02, subject to the right of their holders to rescind acceleration. So the Trustee also requested a declaration that it could rescind the First Lien Notes’ acceleration without violating the automatic stay of creditors’ acts to enforce their remedies once bankruptcy occurs, 11 U.S.C. § 362. However, should the stay apply, the Trustee asked the Court to lift it.

When the Bankruptcy Court did not act, on June 4, 2014, the holders of a majority of the principal amount of the First Lien Notes sent a notice to EFIH rescinding acceleration, contingent on relief from the automatic stay. Two days later, the Bankruptcy Court granted EFIH’s motion to refinance. It ruled, however, that the refinancing would not prejudice the First Lien Noteholders’ rights in the pending adversary proceeding.

On June 19, 2014, EFIH paid off the First Lien Notes and refinanced the debt at a much lower interest rate of 4.25%, saving “an estimated $13 million in interest per month.” In re Energy Future Holdings Corp., 527 B.R. at 189. This of course disadvantaged the First Lien Noteholders, who had contracted to receive interest at 10% until the Notes’ full maturity in 2020. EFIH did not compensate the loss set by contract by paying the make-whole, which would have been approximately $431, million.

C. Refinancing the Second Lien Notes

Shortly after entering bankruptcy, EFIH declared in an SEC 8-K filing that it “reserve[d] the right to ... redeem ... some or all of the outstanding ... Second Lien Notes” but asserted that it “[wa]s under no obligation to do so.” See In Re Energy Future Holdings Corp., No. 14-50363 (Bankr. D. Del.), Docket Entry 181, A-222. Aware of this, as well as the First Lien Noteholders’ predicament, the Trustees for the Second Lien Noteholders— Computershare Trust Company, N.A. and Computershare Trust Company of Cana-dar—filed their own adversary proceeding on June 16, 2014.

Like the First Lien Trustee, the Second Lien Trustees sought a declaration that EFIH would have to pay the make-whole if it chose to refinance the Second Lien Notes. The Second Lien Noteholders also issued a notice rescinding acceleration of that debt and requested retroactive relief from the automatic stay so' that the rescission could take effect.

With the Bankruptcy Court’s permission, EFIH refinanced a portion of the Second Lien Notes on March 10, 2015— again without paying the yield-protection amount.

D. First Lien Make-Whole Litigation

Nine months after granting leave to refinance the First Lien Notes, the Bankruptcy Court considered whether EFIH had to pay the make-whole. In re Energy Future Holdings Corp., 527 B.R. at 191-95. The holding was that it did not. Id.

Although EFIH’s obligation to pay the make-whole appears in § B.07 of the First Lien Indenture, the Court focused .its reasoning on the acceleration provision in § 6.02. Because it took effect when EFIH entered bankruptcy but made no mention of the make-whole, the Court concluded that none was due.

It further held that the automatic stay prevented the First Lien Noteholders’ attempt to rescind the Notes’ acceleration. Id. at 197. Finally, after trial in 2015, it denied the Trustee’s motion to lift the stay retroactively “to a date on or before June 19, 2014, to allow the Trustee to ... decelerate the Notes.” In re Energy Future Holdings Corp., 533 B.R. 106, 116 (Bankr. D. Del. 2015).

These rulings put the First Lien Note-holders in a Catch-22. When EFIH filed for bankruptcy, the maturity of its debt accelerated. This, according to the Bankruptcy Court, cut off the First Lien Noteholders’ right to yield-protection. Rescission of the acceleration would have restored that right. But rescission was blocked by the automatic stay, which the Court refused to lift.

The District Court for the District of Delaware affirmed the Bankruptcy Court’s rulings in February 2016. In re Energy Future Holdings Corp., No. CV 15-620 RGA, 2016 WL 627343, at *1-3 (D. Del. Feb. 16, 2016).

E. Second Lien Make-Whole Litigation

The Second Lien Noteholders fared no better than the First Lien Noteholders. Six months after EFIH refinanced a portion of the Second Lien Notes, the Court considered the Second Lien Noteholders’ entitlement to the make-whole. In construing the Second Lien Indenture’s provisions, the Court adopted its findings and conclusions from the make-whole litigation for the First Lien Noteholders. After rejecting arguments based on the few differences between the First and Second Lien Indentures’ texts, the Court held that the Second Lien Noteholders also were not entitled to yield-protection. In re Energy Future Holdings Corp., 539 B.R. 723, 733 (Bankr. D. Del. 2015). The District Court again affirmed. In re: Energy Future Holdings Corp., No. CV 15-1011-RGA, 2016 WL 1451045, at *4 (D. Del. Apr. 12, 2016).

⅜ ⅜ ⅜⅜ ⅜ ⅜

The First and Second Lien Trustees brought appeals on behalf of their respective Noteholders, which we consolidated. They argue the Bankruptcy and District Courts erred by holding that the Indentures did not require payment of the make-whole when EFIH redeemed the Notes after their maturity had accelerated.

II. JURISDICTION AND GOVERNING LAW

We have jurisdiction to hear appeals from the Bankruptcy and District Courts in this Circuit under 28 U.S.C. §§ 158 and 1291. Statutory construction and contract interpretation are legal questions reviewed anew by us. The contracts at issue—the Indentures that control the Notes—are governed by New York law. First Lien Indenture § 13.08; Second Lien Indenture § 13.08.

“When interpreting state law, we follow a state’s highest court; if that state’s highest court has not provided guidance, we are charged with predicting how that court would resolve the issue.” Illinois Nat. Ins. Co. v. Wyndham Worldwide Operations, Inc., 653 F.3d 225, 231 (3d Cir. 2011). “To do so, we must take into consideration: (1) what that court has said in related areas; (2) the decisional law of the state intermediate courts; (3) federal cases interpreting state law; and (4) decisions from other jurisdictions that have discussed the issue.” Id.

Here we look to the New York Court of Appeals, which has held that “[t]he fundamental, neutral precept of contract interpretation is that agreements are construed in accord with the parties’ intent.” Greenfield v. Philles Records, Inc., 98 N.Y.2d 562, 750 N.Y.S.2d 565, 780 N.E.2d 166, 170 (2002) (internal citations and quotation marks omitted). “The best evidence of what parties to a written agreement intend is what they say in their writing.” Id. “It is the role of the courts to enforce the agreement made by the parties—not to add, excise or distort the meaning of the terms they chose to include, thereby creating a new contract under the guise of construction.” NML Capital v. Republic of Argentina, 17 N.Y.3d 250, 928 N.Y.S.2d 666, 952 N.E.2d 482, 489-90 (2011). “Adherence to these principles is particularly appropriate in a case like this involving interpretation of documents drafted by sophisticated, counseled parties and involving the loan of substantial sums of money.” Id.

III. ANALYSIS

A. The First Lien Indenture

Although both Indentures contain many provisions, this case centers on the words of but two: §§ 3.07 and 6.02. The former, noted earlier as titled “Optional Redemption,” states when the make-whole is due: “At any time prior to December 1, 2015, the Issuer may redeem all or a part of the Notes at a redemption price equal to 100% of the principal amount of the Notes redeemed plus the Applicable Premium [ie., the make-whole] ... and accrued and unpaid interest” (emphasis in original). Indenture § 3.07. The premium decreases annually on a sliding scale between December 1, 2015 and November 30, 2018. From December 1, 2018 until' the Notes’ maturity date in 2020, the Notes may be optionally redeemed without payment of a premium. See Indenture §§ 1.01 (defining “Applicable Premium” and providing formula for its application) & 3.07(d) (setting premium amount for redemptions after December 1, 2015).

Section 6.02 provides that on the filing of a bankruptcy petition by EFIH “all outstanding Notes shall be due and payable immediately without further action or notice.” Indenture § 6.02; see also id. §' 6.01 (defining bankruptcy as an event of default).,

Any duty to pay the make-whole comes from § 3.07. It leaves us with three questions: was there a redemption'; was it optional; and if yes to both, did it occur before December 1, 2015?

Section 3.07 does not define “redemption.” As a redemption “usu[ally] refers to the repurchase of a bond before maturity,” Black’s Law Dictionary 1390 (9th ed. 2009), EFIH contends that we should limit the term to mean only repayments of debt that pre-date the debt’s maturity. Section 6.02 accelerated the Notes’ maturity to the date EFIH entered bankruptcy—April 29, 2014. It refinanced the Notes.- several weeks later.-Thus it argues that its post-maturity refinancing was not a redemption.

But contrary to that position, New York and federal courts deem “redemption” to include both pre- and post-maturity repayments of debt. See e.g., Chesapeake Energy Corp. v. Bank of N.Y. Mellon, 773 F.3d 110, 116 (2d Cir. 2014) (in interpreting New York law, to “redeem” is to “repay[ ] ... a debt security ... at or before maturity” (quoting Barron’s Dictionary of Finance and Investment Terms 587 (8th ed. 2010))); Treasurer of New Jersey v. U.S. Dep’t of Treasury, 684 F.3d 382, 388 (3d Cir. 2012) (discussing regulations permitting bondholders to “present ... - long-matured savings bond[s] for redemption”); Fed. Nat’l Mortg. Ass’n v. Miller, 123 Misc.2d 431, 473 N.Y.S.2d 743, 744 (N.Y. Sup. Ct, 1984) (“debtor may redeem” mortgage by “pay[ing] ... accelerated debt”); see also N.Y. U.C.C. § 9-623, Official Comment No. 2 (“To. redeem the collateral ... of a secured obligation [that] has been accelerated, it would be necessary to tender the entire balance.”). Accordingly, EFIH’s June 19, 2014 refinancing was a “redemption” within the meaning of § 3.07.

Whether the redemption was “[o]p-tional” is next up. EFIH argues that refinancing the Notes was not optional because § 6.02 made them “due and payable immediately without further action or notice” once it was in bankruptcy. EFIH, however, filed for Chapter 11 protection voluntarily. Once there, it had the option, per its plan of reorganization, to reinstate the accelerated Notes’ original maturity date under Bankruptcy Code § 1124(2) rather than paying them off immediately. It chose not to do so, and instead followed the path laid out six months before in its SEC 8-K filing!

EFIH contends nonetheless that any redemption was mandatory rather than optional. But this contention does not match the facts. Indeed “a chapter 11 debtor that has the capacity to refinance secured debt on better terms ... is in the same position within bankruptcy as it would be outside bankruptcy, and cannot reasonably assert that its repayment of debt is not ‘voluntary.’ ” Scott K. Charles & Émil A. Klein-haus, Prepayment Clauses in Bankruptcy, 15 Am. Bankr. Inst. L. Rev. 537, 552 (2007).

Events leading up to the post-petition financing on June 19, 2014 demonstrate that the redemption was very much at EFIH’s option. To repeat, months before its Chapter 11 filing EFIH announced its plan to redeem the Notes before their stated maturity date. In re Energy Future Holdings Corp., 527 B.R. at 189. And after filing for bankruptcy, it produced another 8-K stating that it may, “but [wa]s under no obligation” to, redeem the similarly situated Second Lien Notes. In Re Energy Future Holdings Corp., No. 14-50363 (Bankr. D. Del.), Docket Entry 181, A-222.

The irony is that the Noteholders did not want to be paid back on June 19, 2014. They attempted to rescind the Notes’ acceleration on June 4, 2014, but were blocked by the automatic stay. In re Energy Future Holdings Corp., 533 B.R. at 108. When EFIH redeemed the Notes, it did so “on a non-consensual basis,” that is, over the Noteholders’ objection. J.A. 1214. Logic leaves no, doubt this redemption of the Notes was “[ojptional” under § 3.07.

And, only to close the loop, all this occurred before December 1, 2015. Hence §, 3.07 on its face requires that EFIH pay the Noteholders the yield-protection payment.

B. The Relationship Between §§ 3.07 And 6.02 (Or Whether § 6.02, Once Triggered, Annuls § 3.07)

At oral argument, EFIH’s counsel described §§ 3.07 and 6.02 as “different pathways” that we must choose between. Only the latter is relevant, the argument goes, because it addresses post-maturity payment more specifically than § 3.07, and specific contract provisions govern over more general ones. See Muzak Corp. v. Hotel Taft Corp., 1 N.Y.2d 42, 150 N.Y.S.2d 171, 133 N.E.2d 688, 690 (1956).

It is not obvious why EFIH believes § 6.02 addresses the consequences of the June 2014 redemption more specifically than § 3.07 or why we must choose between them. The two sections simply address different things: § 6.02 causes the maturity of EFIH’s debt to accelerate on its bankruptcy, and § 3.07 causes a make-whole to become due when there is an optional redemption before December 1, 2015. Rather than “different pathways,” together they form the map to guide the parties through a post-acceleration redemption. In any event, § 3.07 is the only provision that specifically addresses re-demptions.

To support its position, EFIH looks primarily to In re AMR Corp., 730 F.3d 88 (2d Cir. 2013). It focused on an indenture’s acceleration provision to determine whether a make-whole was due. Crucially, however, that provision addressed outright whether a make-whole would be due following acceleration.

“[I]f an Event of Default referred to in ... Section 4.01(g) [■i.e., the voluntary filing of a bankruptcy petition] ... shall have occurred and be continuing, then and in every such case the unpaid principal amount of the Equipment Notes then outstanding, together with accrued but unpaid interest thereon and all other amounts due thereunder (but for the avoidance of doubt, without Make-Whole Amount), shall immediately and without further act become due and payable without presentment, demand, protest or notice, all of which are hereby waived.”

Id. at 99 (emphasis added).

AMR is the easy case; just follow the text. The litigants took a route suggested by the New York Court of Appeals in NML Capital v. Republic of Argentina: parties that want obligations to cease when accelerated should say so in their agreement. 928 N.Y.S.2d 666, 952 N.E.2d at 490 (“Had Argentina intended that its responsibility to pay interest twice a year cease upon maturity, it could easily have clarified that intent in any number of ways.”).

In our case, § 6.02 makes no mention of the make-whole. EFIH argues that this silence saps § 3.07’s effect. On a general note, that reading would cross cords with our duty to “give full meaning and effect to all of [the Indenture’s] provisions.” Chesapeake Energy Corp., 773 F.3d at 113-14 (internal quotation marks omitted). “Contracts are ... to be interpreted to avoid inconsistencies and to give meaning to all [their] terms.” Barrow v. Lawrence United Corp., 146 A.D.2d 15, 18, 538 N.Y.S.2d 363 (N.Y. App. Div. 1989). More specifically, EFIH’s interpretation conflicts with the New York Court of Appeals’ statement that “[w]hile it is understood that acceleration advances the maturity date of the debt,” there is no “rule of New York law declaring that other terms of the contract not necessarily impacted by acceleration ... automatically cease to be enforceable after acceleration.” NML Capital, 928 N.Y.S.2d 666, 952 N.E.2d at 492. Accordingly, § 3.07 stands on its own, unswayed by the Indenture’s other provisions.

EFIH alternatively argues that §§ 6.02 and 3.07 are in conflict, so that only one may apply to the June 2014 redemption. Subsection 3.07(e) prescribes detailed notice procedures for EFIH to follow before redeeming the Notes, while § 6.02 makes the Notes “due and payable immediately without further action or notice.” If the notice procedures were not followed, no redemption could follow. Yet EFIH offers no reason why it could not have complied with § 3.07(e)’s notice procedures. In any event, it cannot use its own failure to notify to absolve its duty to pay the make-whole. Any conflict between the two provisions in this instance is illusory.

We know no reason why we should choose between §§ 3.07 and 6.02 when both plainly apply.' By its own terms, § 3.07 governs the optional redemption embedded in the refinancing and requires payment of the make-whole. It surpasses strange to hold that silence in § 6.02 supersedes § 3.07’s simple script.

C. The Second Lien Indenture’s Additional Language

As mentioned above, the Second Lien Indenture’s acceleration provision contains words not present in the First Lien Indenture. These additions make explicit in the Second Lien Indenture the link between acceleration under § 6.02 and the make-whole for an optional redemption per § 3.07. While for the First Lien Indenture these concepts are without cross-reference and separate, in the Second Lien Indenture they are tied together. Sections 3.07 and 6.02 are not merely compatible but complementary. In any event, the result is the same no matter the Indenture— there were optional redemptions before a date certain, thereby triggering make-whole premiums.

When EFIH -filed its bankruptcy petition, Second Lien Indenture § 6.02 caused “all principal of and premium, if any, interest .,. [,] and any other monetary obligations on the outstanding [Second Lien] Notes [to] be[eome] due and payable immediately” (emphasis added). Compare First Lien Indenture § 6.02 (“all outstanding Notes shall be due and payable immediately”). The words “premium, if any,” are most naturally read to reference § 3.07’s “Applicable Premium”—that is, the make-whole.

The most EFIH musters is that the Second Lien Indenture could have been even more specific by replacing “premium, if any,” with “a premium owed under section 3.07” or “Applicable Premium or other premium owed as if repayment under this section were an Optional Redemption under section 3.07.” EFIH’s Br. at 24-25. But we see no reason to demand such exactness. Indeed, EFIH has not suggested any other “premium” the drafters could have had in mind.

True, in a case called Momentive, the Bankruptcy Court for the Southern District of New York held the words “premium, if any,” were not specific enough to require payment of a make-whole in similar circumstances. In re MPM Silicones, LLC, No. 14-22503-RDD, 2014 WL 4436335, at *13 (Bankr. S.D.N.Y. Sept. 9, 2014), affd, 531 B.R. 321 (S.D.N.Y. 2015) (“Momentive”). We believe, however, the result in Momentive conflicts- with that indenture’s text and fails to honor the parties’ bargain. For these and additional reasons discussed below, we find it unpersuasive.

By including the words “premium, if any,” in its acceleration provision, the Second Lien Indenture leaves no doubt that §§ 3.07 and 6.02 work together. The latter is explicit that a premium is in play, and the only relevant premium provision is the former. Thus both remained applicable following bankruptcy, and, pursuant to the agreement struck with the Second Lien Noteholders, they are entitled to the make-whole.

D. The Effect of Acceleration on Make-Whole Provisions

Notwithstanding the result dictated by § 3.07’s text in both Indentures, EFIH' asserts that it should not have to pay the make-whole because § 6.02 caused the Notes’ maturity to accelerate before it paid them off. Citing a New York trial court opinion, Nw. Mut. Life Ins. Co. v. Uniondale Realty Assocs., 11 Misc.3d 980, 816 N.Y.S.2d 831, 836 (N.Y. Sup. Ct. 2006) (“Northwestern”), it argues that courts must close their eyes to make-whole provisions once a debt’s maturity has accelerated.

In interpreting laws of a state, we need not follow the judgments of its trial courts. See MRL Dev. I, LLC v. Whitecap Inv. Corp., 823 F.3d 195, 203 (3d Cir. 2016) (“The Superior Court of the Virgin Islands ... is not the highest court of the Territory or even an intermediate appellate court, but rather a trial court. Accordingly, we are not bound by Superior' Court decisions” (internal brackets, citations, and quotation marks omitted)). But even if we were inclined to do so here, EFIH’s interpretation of Northwestern conflicts with the pronouncements of New York’s highest court, which we follow on questions of New York law. See Illinois Nat. Ins. Co., 653 F.3d at 231.

As we noted above, the New York Court of Appeals stated unequivocally in NML Capital v. Republic of Argentina that “[w]hile it is understood that acceleration advances the maturity date of the debt, [it was] unaware of any rule of New York law declaring that other terms of the contract not necessarily impacted by acceleration ... automatically cease to be enforceable after acceleration.” 928 N.Y.S.2d 666, 952 N.E.2d at 492. Put differently, contract terms like § 3.07 that are applicable before acceleration remain so afterward.

In NML Capital, New York’s highest Court answered several questions certified to it by the U.S. Court of Appeals for the Second Circuit. Id., 928 N.Y.S.2d 666, 952 N.E.2d at 486. Among them was “whether Argentina’s obligation to make [certain contractually established interest] payments to bondholders continued after maturity or acceleration of the indebtedness[.]” Id., 928 N.Y.S.2d 666, 952 N.E.2d at 486. Argentina contended that, after the maturity of its debt had accelerated, bondholders were entitled only to their principal and any accrued interest. Id., 928 N.Y.S.2d 666, 952 N.E.2d at 490. Acceleration, it argued, terminated .its duty to make biannual interest payments mandated by the bond documents. Id., 928 N.Y,S.2d 666, 952 N.E.2d at 487.

In rejecting those assertions, the New York Court of Appeals held that “in New York the consequences of deceleration of the debt depend on the language chosen by the parties in the pertinent loan agreement.” Id., 928 N.Y,S.2d 666, 952 N.E.2d at 492. “Had Argentina ... intended that its responsibility to pay interest twice a year cease upon maturity, it could easily have clarified that intent in any number of ways.” Id., 928 N.Y.S.2d 666, 952 N.E.2d at 490. For example, the bond documents could have specified that the payment “obligation continued ‘until’ the maturity date” or could have provided “that interest payments were to be made until the principal was due, thereby referring back to the loan maturity date." Id. However, because the bond language that Argentina pay biannual interest payments made no reference to acceleration or maturity, it remained effective following the bonds’ acceleration. Id., 928 N.Y.S.2d 666, 952 N.E.2d at 493. The takeaway for us is that § 3.07 applies no less following acceleration of the Notes’ maturity than it would to a pre-acceleration redemption.

Despite the New York Court of Appeals’ holding in NML Capital and still riding the.Northwestern horse, EFIH contends that we should decline to require payment of the make-whole because the trial court declared that a “prepayment premium will not be enforced under default circumstances in the absence of a clause which so states[.]” Northwestern, 816 N.Y.S.2d at 836. .It held that a mortgage lender who chose to foreclose following default was not entitled to a “prepayment premium” because foreclosure had advanced the debt’s maturity date. Id. “ [Prepayment is a payment before maturity[,]” but after foreclosure prepayment is impossible as the debt has become due and payable immediately. Id. at 837 (emphasis in original). According to EFIH, Northioestem sets a rule that, unless an agreement clearly provides for it, no make-whole payment is due after a note’s acceleration.

No doubt prepayment premiums are the price of “an option voluntarily to prepay the loan and terminate the mortgage before the maturity.” In re S. Side House, LLC, 451 B.R. 248, 267 (Bankr. E.D.N.Y. 2011), aff'd sub nom., U.S. Bank Nat. Ass’n v. S. Side House, LLC, No. 11-CV-4135 ARR, 2012 WL 273119 (E.D.N.Y. Jan. 30, 2012); accord Northwestern, 816 N.Y.S.2d at 836. “[Acceleration, by definition, advances the maturity date, of the debt so that paynient thereafter is not prepayment but instead is payment made after maturity[,]” and logically the option to prepay can no longer be exercised after maturity. Matter of LHD Realty Corp., 726 F.2d 327, 330-31 (7th Cir. 1984); D.I.S., LLC v. Sagos, 38 A.D.3d 543, 832 N.Y.S.2d 581, 582 (2007) (“prepayment” penalty did not apply to tender of mortgage principal and interest following acceleration -because post-acceleration payments are not “prepayments”).

Unlike prepayment, however, “redemption” of “a debt security” may occur “at or before maturity.” Chesapeake Energy Corp., 773 F.3d at 116 (emphasis added). Thus, while a premium contingent on “prepayment” could not take effect after the debt’s maturity, a premium tied to a “redemption” would be unaffected by acceleration of a debt’s maturity.

Our understanding of New York law is that it follows a logical path: prepayments cannot occur when payment is now due by acceleration of the debt’s maturity. If parties want to mandate a “prepayment” premium . following acceleration, they must clearly state it in their agreement. This is the Northwestern rule.

Recently, however, bankruptcy courts, including the Bankruptcy Court here, have stretched Northwestern beyond its language and applied its clear-statement rule to yield-protection payments not styled as prepayment premiums. In the Momentive case we mentioned in our discussion of the Second Lien Indenture, a Bankruptcy Court considered language similar to that of both Indentures and nearly identical to the- text of the Second Lien Indenture. Like the Indentures here, the Momentive indenture required payment of a make-whole on optional redemptions occurring before a particular date. Momentive, 2014 WL 4436335, at *13. The Court, however, disallowed the lenders’ claim for a make-whole, declaring it “well-settled law in New York” that a make-whole, like a prepayment premium, will only be due on a default and acceleration “when a clear and unambiguous clause calls” for it. Momen-tive, 2014 WL 4436335, at *12-*13 (citing Northwestern). The Delaware Bankruptcy Court followed the same line, declining to enforce the make-whole provision because “an indenture must contain express language requiring payment of a prepayment premium upon acceleration; otherwise, it is not owed.” In re Energy Future Holdings Corp., 527 B.R. at 192 (construing First Lien Indenture); accord In re Energy Future Holdings Corp., 539 B.R. at 733 (construing Second Lien Indenture).

By denying the make-whole after the Notes’ acceleration, the Bankruptcy Court pushed the Northwestern rule beyond its language and underlying policy concerns. First, its application of the rule is off point because § 3.07 in the Indentures does not use the word “prepayment.” Northwestern responds, in part, to the linguistic paradox created by the idea of a prepayment following acceleration. “Once the maturity date is accelerated to the present, it is no longer possible to prepay the debt before maturity.” Northwestern, 816 N.Y.S.2d at 834. That is why, if parties want a “prepayment” premium to survive acceleration and maturity, they must clearly state it.

The Indentures here present no linguistic tension to resolve. Nothing in § 6.02 negates the premium § 3.07 requires if an optional redemption occurs before a stated date. Acceleration here has no bearing on whether and when the make-whole is due.

EFIH argues that, even though § 3.07 does not use the word “prepayment,” the make-whole is in substance a prepayment premium, and thus the Northwestern rule should apply. But we must give effect to the “words and phrases” the parties chose. Chesapeake Energy Corp., 773 F.3d at 113-14; NML Capital, 928 N.Y.S.2d 666, 952 N.E.2d at 489-90. By avoiding the word “prepayment” and using the term “redemption,” they decided that the make-whole would apply without regard to the Notes’ maturity.

Moreover, beneath the Northwestern holding was a policy concern that lenders should not be permitted “to recover prepayment premiums after default and acceleration in order to preserve an income stream ... absent any ‘voluntar/ prepayment.” Northwestern, 816 N.Y.S.2d at 836. There the mortgagee seeking the prepayment premium had elected to foreclose in order to recoup its investment immediately. Id. at 833. Ordinarily, by electing to accelerate the debt, a lender forgoes its right to a stream of payments in favor of immediate repayment. Matter of LHD Realty Corp., 726 F.2d at 331 & n.4. The Northwestern Judge was concerned that lenders should not be able to seek immediate repayment and pile on by also receiving a premium. Here, by contrast, the Noteholders did not seek immediate payment. EFIH voluntarily redeemed the Notes over the Noteholders’ objection. Hence even the policy guiding Northwestern does not reach this case.

Finally, to repeat what we said at the outset, by declining to enforce § 3.07 after acceleration, the Bankruptcy Court ran afoul of New York authority by failing to enforce a contract provision—§ 3.07—not affected by acceleration. NML Capital, 928 N.Y.S.2d 666, 952 N.E.2d at 492. To reach its conclusion, it followed Momentive, which described “automatic acceleration clauses” as “negating” the effect of make-whole redemption provisions. Momentive, 2014 WL 4436335, at *14. That is not what NML Capital tells us.

EFIH answers that the Noteholders should have taken note of bankruptcy courts’ novel application of Northwestern and insisted on clearer language in the Indenture. See e.g., In re Anchor Resolution Corp., 221 B.R. 330, 334 (Bankr. D. Del. 1998) (“If the maturity of any Series B Note shall be accelerated ... [,] there shall become due and payable ... as compensation to the holders ... a premium equal to the Make-Whole Amount.”). But this puts the burden backward; if EFIH wanted its duty to pay the make-whole on optional redemption to terminate on acceleration of its debt, it needed to make clear that § 6.02 trumps § 3.07. See NML Capital, 928 N.Y.S.2d 666, 952 N.E.2d at 490. The burden to make that showing is with EFIH. To place it on the Noteholders for EFIH’s decision to redeem the Notes is a bridge too far.

⅝ ⅜ ⅝ ⅝ ⅜

Our “primary objective ... is to give effect to the intent of the parties as revealed by the language of their agreement.” Chesapeake Energy Corp., 773 F.3d at 113-14. The language of the First Lien Indenture requires EFIH to pay a make-whole if it redeems the First Lien Notes at its option before December 1, 2015, and the Second Lien Indenture requires the same for redemptions of Second Lien Notes before May 15, 2016 or March 1, 2017 (depending on the initial maturity date of the particular debt instruments). EFIH redeemed the First Lien Notes at its option on June 19, 2014 and redeemed a portion of the Second Lien Notes on March 10, 2015. Redemptions, not prepayments, occurred here, they were at the election of EFIH, and they occurred before the respective dates noted. Statements of New York law by its highest Court and the federal Circuit Court in New York reinforce our conclusion that EFIH must pay the make-whole per the Indenture language before us.

The judgments of the District Court are reversed with instructions to remand to the Bankruptcy Court for further proceedings consistent with this opinion. Any future appeals shall return to this panel.

      . For the purpose of determining EFIH’s duty to pay any make-whole, the Bankruptcy Court assumed that it was “solvent and able to pay all allowed claims of [its] creditors in Ml.” In re Energy Future Holdings Corp., 527 B.R. at 183. We do the same. Because we do not have any briefing on the matter even without that assumption, we do not consider whether insolvency might have affected EFIH’s obligations.

      . In Sections A and B, we refer for convenience to the First Lien Indenture simply as the "Indenture.” Likewise, we mean the First Lien Notes and First Lien Noteholders when we refer to "the Notes” or "the Noteholders” in these Sections. Thereafter the two terms mean all debt instruments and their holders under both the First Lien and Second Lien Indentures, which themselves may be referred to collectively as the "Indentures.”

      . Even though a debtor cannot prepay what is already due, courts have enforced prepayment premiums after acceleration when the debtor has intentionally defaulted in order to avoid the premium. See e.g., In re S. Side House, LLC, 451 B.R. at 269; Northwestern, 816 N.Y.S.2d at 836.

      . Because we hold that the Noteholders are entitled to the make-whole, we do not reach the Trustees’ alternative arguments that the Bankruptcy Court should have lifted the automatic stay to permit rescission of the Notes’ acceleration or that the Court should have allowed the Noteholders a contingent claim for the make-whole or a claim for contract damages.