Hello again, fair followers. Presented today for your pleasurable perusal is this pithy pandect of the penultimate paper in the Prime Broker Defendant’s Motion to Dismiss procedure. If perhaps you are pondering the precise past of Defendant’s process in pushing back, I present the proximate program over which I propose you pore:

– Stock Loan Lowdown
– Stock Loan Lowdown, Part Two: To Dismiss or Not to Dismiss?
– Stock Loan Lowdown: Third Time Through the Order

And now to the meat of the matter: does the Defendant’s robust reply result in any real issues to plague the Plaintiffs?

Play It Again, Sam – Plaintiffs Fail To Allege A Plausible Antitrust Conspiracy

The bulk of Defendant’s reply brief is focused on the plausibility of the conspiracy laid out by the Plaintiffs. Nothing in Plaintiff’s opposition, they argue, successfully counters the key defects in the conspiracy: the marketplace lacked clearing brokers necessary to support anonymous trading; the industry was not suited to such trading because loaned securities could be recalled at any time; and the presence of agent-lenders at EquiLend board meetings—individuals whose interests would not have supported such a conspiracy.

First, Defendants point out, there is no clearing mandate for stock loans—no OCC bylaws requiring lenders and borrowers to rely on OCC clearing members to clear their trades—and as of yet none of the OCC members have entered the business of clearing stock loans for third parties. Without clearing arrangements, Defendants argue, such trades cannot be sustained. Moreover, Plaintiff’s argument that clearing would be possible if any of the OCC members did so enter the business is insufficient, according to Defendants, where plaintiffs fail to explain why Defendants (and other OCC members) would have chosen to do so, absent a regulatory mandate.

Second, Defendants argue that Plaintiffs have offered no explanation for the Defendant’s apparent ability to perpetrate a conspiracy in full view of the other members of Equilend’s other board members—namely, the large agent-lenders, such as BlackRock, Northern Trust, and State Street, all of whom represent many of the conspiracy’s alleged victims. The Plaintiffs argued, in their opposition, that the agent lenders may have had “their own incentives to preserve the status quo.” Defendants point out that such justifications are not only unpled, but directly contradicted by statements in the Plaintiff’s complaint. In support of this contention, Defendants point to statements such as “numerous agent lenders supported AQS,” and insist that, if agent lenders were in fact part of the alleged conspiracy, Plaintiffs should have pled as much.

Third, with respect to Plaintiff’s arguments concerning the recall of stocks—namely, that such issues could be overcome by the use of variances in risk premiums—Defendants simply point to their lack of citation or explanation for such a process. They further argue that the industry support Plaintiffs claim that the AQS project had amounts to little: those investors and supporters “would not have been the first to anticipate incorrectly market or regulatory evolution on central clearing.”

Defendants next shift to Plaintiff’s claims of direct evidence, and find that they “fall[] flat.” To be direct, Defendants note, such evidence must be both explicit and requiring no inference to establish the proposition asserted. The conversations Plaintiffs offer are, at best, inferences based on circumstantial evidence, and a far cry from an admission of an explicit agreement to boycott. What’s more, all direct evidence cited by the Plaintiffs pertains to the joint venture—not to the alleged agreement among Defendants as to what they would do outside of that venture.

Defendants next attack Plaintiff’s apparent reliance on group pleading. While the courts may allow pleadings that do not make defendant-by-defendant allegations, the “dispositive issue” is whether it is adequately pled that they “in their individual capacities, consciously committed themselves to [a] common scheme designed to achieve an unlawful objective” (a proposition for which defendants cite the SDNY IRS case). Plaintiffs, according to this reply, do not even attempt to satisfy that standard.

Next up are allegations of parallel conduct—as one might expect, Defendants again found these to be inadequate. First, they argue, the conduct described by Plaintiffs was more divergent than parallel: for example, multiple Defendants joined, used, or invested in AQS, which clearly diverges from a boycott. By the same token, it can hardly be said that Defendants all boycotted all three platforms. Moreover, any parallel behavior that can be said to exist is, as per Defendants, “mere inaction.” For example, Defendants point to the fact that there are no allegations that that the Defendants had anything to do with OCC clearing rules—so how could they have “imposed unnecessary conditions on their clearing connections?”.

Defendants next turn to the Plaintiffs’ proffered “plus factors,” arguing that the purported high-level of inter-Defendant communications cannot possibly create an inference of conspiracy in an industry in which inter-broker communications are commonplace. The communications cited by Plaintiffs are “routine,” defendants insist, and cannot on their own plausibly allege a high level of communications. Defendants also pooh-pooh Plaintiff’s claim of a “common motive to preserve their supracompetitive profits”: all industry participants seek high profits, and allegations of a profit motive utterly fail to supply a plus factor.

Hit It Again, Harry* – Plaintiffs Fail To Salvage Their Claim Based On The EquiLend Conspiracy

Defendants in this section latch on to Plaintiff’s contention that the Complaint primarily concerns an agreement among the Defendants as to their actions outside the joint venture—not the actions taken within EquiLend. To the contrary, Defendants argue: the antitrust claim described by Plaintiffs in fact rests largely, if not primarily, on allegations regarding EquiLend that are, in fact, entirely consistent with lawful joint-venture conduct.

First, Defendants argue that the allegations concerning participation in EquiLend are subject to the rule of reason. Because Plaintiffs concede that EquiLend’s platform offered some operational efficiencies, and do not attempt to argue that EquiLend was “an illegitimate shell,” the conduct described—such as EquiLend’s creation and pricing of DataLend, and purchases of both AQS and SL-x’s intellectual property—it should be subject to the rule of reason as the internal decisions of a legitimate joint venture. To counter Plaintiff’s insistence that the allegations involving EquiLend must properly be considered as a whole, Defendants point out that, in order to examine a claim as a whole, one must first analyze its individual allegations.

Having established to their satisfaction that Plaintiffs cannot avoid the application of the rule of reason, Defendants then shift to arguing why Plaintiffs fail to allege a rule-of-reason claim. Under that analysis, Plaintiffs would be required to show that the alleged agreement produced an adverse, anti-competitive effect within the relevant market. Defendants first attack whether the Plaintiffs have adequately alleged that the stock loan market is a relevant antitrust market, insisting that, while the individual Defendants may compete in the stock loan market, Plaintiffs have not alleged that the joint venture, EquiLend competes with them there, or, in fact, that it has any presence in any market. Without any participation in a market, EquiLend cannot, and does not, have the ability to adversely affect competition. Defendants further invite the court to decline Plaintiff’s invitation to truncate the rule of reason analysis, insisting that the alleged conduct was not, as Plaintiffs claim, “obviously anti-competitive.” As an example here, Defendants cite EquiLend’s creation and pricing of DataLend: how can the creation of a new service, with superior data and lower prices, created specifically to compete with a market incumbent, possibly be an example of anticompetitive behavior, they ask?

Pay It Forward, Paul – Plaintiffs Injuries Are Too Speculative To Confer Antitrust Standing

Defendants continue to argue that Plaintiffs injuries, based on “vague allegations” that SL-x and Data Explorers would have increased efficiency, price competition, and transparency, simply do not identify damages that the borrowers and lenders in any sufficient detail. Moreover, while the Complaint argues that the imposition of an electronic, all-to-all trading platform, like that of AQS, would have resulted in better prices, that contention simply does not apply to Data Explorers – a pricing service – and SL-x, a platform non-operational in the US.

Furthermore, Defendants argue, AQS could not have succeeded without clearing brokers to provide access to central clearing. While more than sixty brokerage firms have stock lending clearing privileges, Plaintiffs do not dispute that none of those firms have entered the business of clearing loans for other entities. Their presence, Defendants argue, is a precondition to the success of AQS—and thus to any improvements in pricing—and their absence cannot be attributed to the alleged scheme.

Time’s Up, Tony – Plaintiffs Have No Answer To The Statute Of Limitations

Finally, Defendants insist that Plaintiffs claims are time-bared insofar as it seeks damages for conduct that allegedly first caused injury before August 16, 2013. Plaintiffs arguments to the contrary fail first, because they misstate the law of accrual, and, second, because they do not successfully defend the sufficiency of their fraudulent concealment claim.

Plaintiff’s opposition asserted that the limitations period runs not from when Defendants acted, but from when the injury occurred. Defendants point out that, to the contrary, a Section 1 claim accrues when “the defendant commits an act that injures the plaintiff.” Much of the supposedly wrongful conduct—including the boycott of DataExplorers, and many of the SL-x allegations—occurred outside of the four-year limitations period, and, according to the allegations, caused contemporaneous injury. Because the conduct and initial injury occurred more than four years prior to the original complaint, the statute of limitations bars any recovery of damages caused by that conduct.

Plaintiffs argued that, notwithstanding the early date of Defendants actions, their claims were timely because the stratified the pleading standard for tolling. Defendants argue that, to the contrary, Plaintiffs allegations fall short on all three elements: concealment, ignorance, and diligence. First, the alleged conspiracy was not self-concealing, as the EquiLend platform and its ownership was public knowledge, and Plaintiffs did not adequately allege affirmative acts of concealment by defendants; to the extent that they cite any acts, they fail to identify which occurred prior to August 2013. Against claims of ignorance, Defendants point again to the 2009 Global Custodian article quoted in Plaintiff’s own complaint, stating that it must have, at least, placed plaintiffs on inquiry notice. And on diligence, Defendants claim that Plaintiff’s reading of the Rule 9(b) requirement to say that “a plaintiff’s diligence is often satisfied by allegations of a defendants concealment” is inadequate, as it functionally reads the diligence requirement out of existence. Moreover, Plaintiffs fail to explain what happened during the limitations period to prompt the investigation by counsel that resulted in the lengthy complaint—and without that, it is impossible, as per Defendants, to ascertain whether Plaintiffs could or should have discovered their claim within the period.

Conclusion

And with that, I will close this post; we’ll update this series again when the motion to dismiss decision comes down, so stay tuned for developments.

*No, you’re not missing a reference. Call it creative license.

This post was written by Alexandra M.C. Douglas.

We welcome your feedback. If you have questions or comments about this post, please e-mail John M. Lundin, the Manipulation Monitor’s editor, at jlundin@schlamstone.com or Alexandra M.C. Douglas at adouglas@schlamstone.com or call John or Alexandra at (212) 344-5400.

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In this post, we cover recently filed briefing in In Re: Libor-Based Financial Instruments Antitrust Litigation, 11-MD-02262 (“In re Libor“), the multi-district litigation in the Southern District of New York comprised of actions filed across the United States since 2011 relating to manipulation of LIBOR (the London Interbank Offered Rate) for the U.S. dollar.

Some may find it hard to believe that there can still be pre-trial dispositive motions being litigated in cases that have been around for seven years; yet, on July 13, 2018, LIBOR Defendants Bank of America, N.A. and JP Morgan Chase Bank, N.A. (together, the “OTC Defendants”) moved for partial judgment on the pleadings under Federal Rule of Civil Procedure 12(c) to dismiss the OTC Plaintiff Class’ antitrust claims based on transactions with, or on which interest is paid by, subsidiaries or affiliates of a U.S. Dollar LIBOR panel bank. The OTC Plaintiff Class (“OTC Plaintiffs”) filed an opposition to the OTC Defendants’ motion on August 9. We will summarize the arguments made by both parties in their respective motions.

If you are generally unfamiliar with LIBOR, it may be worth reading our June 6, 2018, post, which provided a general overview of the factual allegations in In re Libor, first, before reading on here. It is important to remember that the LIBOR interest rate was calculated using daily submissions from banks that made up a panel composed by the British Bankers Association. The OTC Plaintiffs generally consist of those who bought an interest rate swap or bond/floating rate note tied to the LIBOR rate directly from a panel-member bank (or one of its affiliates) (although the actual class definition is more complicated than that).

Requirements for Antitrust Standing Generally

As stated in a previous decision in In re Libor, in order to have standing to assert antitrust claims, it is required that a plaintiff allege “that it (1) has experienced antitrust injury and (2) is an efficient enforcer of the antitrust laws . . . .” In re Libor (“LIBOR VI”), 2016 WL 7378980 at *1 (S.D.N.Y. Dec. 20, 2016). There are four factors that guide whether a plaintiff will be an efficient enforcer of antitrust laws: “(1) the directness or indirectness of the asserted injury, which requires evaluation of the chain of causation linking appellants’ asserted injury and the Banks’ alleged price-fixing; (2) the existence of more direct victims of the alleged conspiracy; (3) the extent to which appellants’ damages claim is highly speculative; and (4) the importance of avoiding either the risk of duplicate recoveries on the one hand, or the danger of complex apportionment of damages on the other.” Gelboim v. Bank of Am. Corp., 823 F.3d 759, 778 (2nd Cir. 2016) (quoting Associated Gen. Contractors of Calif., Inc. v. Calif. State Council of Carpenters, 459 U.S. 519, 540 – 545 (1983)). The efficient enforcer test is meant to guide “whether the putative plaintiff is a proper party to perform the office of a private attorney general and thereby vindicate the public interest in antitrust enforcement.” Id.

The OTC Defendants’ Argument

The OTC Defendants contend that the OTC Plaintiffs do not have standing to assert antitrust claims for the following types of transactions: 1) where the plaintiff’s only counter-parties were panel members’ affiliates or subsidiaries, but not any actual panel member; 2) transactions where the issuer was not the panel member, but rather an affiliate or subsidiary of the panel member, and the panel member’s only role was as that of a seller; and 3) where the panel member was an issuer, but the seller was an affiliate or another panel member’s affiliate.

The OTC Defendants argue that the decision to incorporate the LIBOR rate the first type of transaction would be made independent of the panel member and is therefore an “independent decision” that severs the causal chain required by the efficient enforcer test’s causation factor. The OTC Defendants cite to the Court’s decision in LIBOR VI; in that case, the Court ruled that a class of bondholder plaintiffs could not be an efficient enforcer where the plaintiffs’ counter-party was not a panel bank, and dismissed plaintiffs’ antitrust claims accordingly.

The OTC Defendants also point to the Court’s holdings from LIBOR VI that plaintiffs have not pleaded facts to show that the panel members participated in the suppression of LIBOR, and that panel member banks are the proper defendant for persistent suppression claims. Although they admit that those holdings pertained to the question of who the appropriate defendants are, not whether plaintiffs are efficient enforcers of antitrust law, the OTC Defendants submit that the reasoning should nevertheless apply here. Finally, the OTC Defendants contend that the OTC Defendants have not asserted any allegations to suggest that the panel member’s affiliates and subsidiaries were not independent.

The OTC Plaintiffs’ argument that the OTC Plaintiffs have no standing to assert antitrust claims for the second type of transactions uses similar reasoning as to that of the first type of transactions. According to the OTC Defendants, the OTC Plaintiffs have not alleged facts to suggest that where the panel member was a mere seller, that it would have been the one to decide to incorporate LIBOR rates into the transaction. Since the decision to incorporate LIBOR is independent of the panel member, and the causal chain required by the efficient enforcer test’s causation factor is severed, the OTC Plaintiffs do not have antitrust standing for those transactions.

For their argument that there is no standing for antitrust claims where the panel member was an issuer, but the seller was an affiliate or another panel member’s affiliate, the OTC Defendants rely on Illinois Brick Co. v. Illinois, 431 U.S. 720, 736 (1977). In that case, the Supreme Court ruled that, with certain exceptions (which the OTC Defendants argue are inapplicable), “only direct purchasers have standing to bring civil antitrust claims.” In other words, to have standing to bring an antitrust claim under the Clayton Act, one must purchase the price-fixed product directly from the alleged co-conspirator.

Although OTC Defendants concede that there is an exception under this rule for when the defendant owns or controls the entity that sold the goods, they argue that the exception only applies where there is such functional unity between the defendant and the seller-entity that the defendant controls the seller-entity and sets the prices of the product in question. The OTC Defendants point out that the OTC Plaintiffs have not alleged that the panel members decided to incorporate LIBOR in these type of transactions. The Illinois Brick rule therefore prohibits standing to assert antitrust claims where the panel member was only an issuer.

The OTC Plaintiffs’ Argument

The OTC Plaintiffs argue in response by first contesting that panel members were not involved and did not benefit from LIBOR-based transactions involving their subsidiaries and affiliates such that there is no causal link between the panel members and transactions involving their affiliates and subsidiaries. They contend that although the Court previously found that defendants had no control over, input in, and profit from the Bondholder’s LIBOR-based transactions, the OTC Defendants in fact did control, have input in, and profit from the OTC Plaintiffs’ transactions. They point to published reports from Bank of America and JP Morgan Chase & Co. showing that the OTC Defendants’ subsidiaries and/or affiliates served to manage interest rate risk across the entire corporate structure. The OTC Plaintiffs also note that the equivalent of the treasury department set “transfer pricing” across different departments and ensured that the customer-facing segments of the main bank did not buy or sell instruments above the panel member’s LIBOR submission. Finally, they note that in LIBOR VI, the only case that the OTC Defendants relied on besides Illinois Brick, the Court specifically stated that the “antitrust laws do not require a plaintiff to have purchased directly from a defendant to have antitrust standing. 2016 WL 7378980 at *16.

The OTC Plaintiffs then note that the OTC Defendants ignore the other three factors in the efficient enforcer test. Since there is no difference in motivation of enforcement of antitrust laws between those who transact only with a panel member and those who transact with a subsidiary, the theory of damages is no more speculative when it comes to transactions with subsidiaries and affiliates and the court has already said that there is no danger of duplicative recovery when damages are tied to particular transactions.

Every factor in the efficient enforcer test, according to the OTC Plaintiffs, goes in their favor.

The OTC Plaintiffs also cite Arandell Corp. v. Centerpoint Energy Servs., 2018 WL 3716026 (9th Cir. Aug. 6, 2018), to support the assertion that parents and wholly-owned subsidiaries are treated as a single enterprise when they engage in coordinated activity for an illegal, anti-competitive purpose. In Arandell, the Court held that a subsidiary-gas seller could be liable for advancing anti-competitive conduct and named as a defendant selling gas at prices fixed by its parent and the parent and subsidiary shared profits with each other. According to the OTC Plaintiffs, since the panel members fixed the LIBOR rates, they and their respective affiliates and subsidiaries who sold and issued the transactions should be treated as a single enterprise.

The OTC Plaintiffs also push back against the OTC Defendants’ argument that there should not be antitrust standing where the panel members were mere sellers. The case law that the OTC Defendants cited to support that argument concerned the liability of agents and brokers for state-law breach of contract and unjust enrichment. Since the common law requirement of a contractual or quasi-contractual relationship is not relevant to the question of who is the proper plaintiff to enforce antitrust laws, according to the OTC Plaintiffs, those cases are inapplicable.

The OTC Plaintiffs also contend that the direct purchaser rule under Illinois Brick is inapplicable, since that rule applies to fixed-priced goods, so as to prevent duplicative recovery by upstream and downstream purchases of the same good. Since class members do not ever receive the same suppressed interest payment, the rule does not apply to financial benchmark-fixing cases. Moreover the “practical considerations of double recovery, complex apportionment, and over-deterrence are not present here as they are in Illinois Brick.

Finally, the OTC Plaintiffs argued that their antitrust claims should not be dismissed while material factual disputes are pending. The motion raises issues as to the banks’ internal structure, the issuance of LIBOR swaps and bonds, and the sharing of revenues. Discovery thus far has been limited, according to the OTC Plaintiffs. They argue that they should be allowed to take further discovery on the aforementioned topics before their claims are dismissed.

Remainder of Briefing Schedule

Under the current briefing schedule, the OTC Defendants’ replies are due August 24, 2018. Stay tuned to this blog, as we will be sure to inform you as to any new development from the OTC Defendants’ reply.

This post was written by John F. Whelan.

We welcome your feedback. If you have questions or comments about this post, please e-mail John M. Lundin, the Manipulation Monitor’s editor, at jlundin@schlamstone.com or John F. Whelan at jwhelan@schlamstone.com or call John Lundin or John Whelan at (212) 344-5400.

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Welcome back, followers, friends and fellow antitrust fans, to this third installment of the Stock Loan Lowdown. This time around, we examine the full-blown fortress forged by our persistent plaintiffs in response to the defendants frighteningly (or frustratingly?) far-reaching motion to dismiss. If you’re new around here and wondering just what that motion said, who the parties are, or why these soporific sentences contain such frequent forays in to the fertile forests of alliteration—feel free to ferret out former posts on the first few fields by clicking here for the who, and here for the what.

Plaintiffs, understandably, had a lot of ground to cover in their opposition, and did so admirably. Their brief starts with a review of group boycotts and the Rule 8 pleading standard. Specifically, Plaintiffs posit that the antitrust claim they made is a “classic example” of a group boycott, of the type long recognized by courts as unlawful per se.” More to the point, they accuse the Prime Broker Defendants of “ignoring” the Second Circuit’s holding in Anderson News, a case which found the joint decision of a group of publishers and distributors boycott certain magazine wholesalers—each of whom has attempted to charge publishers a per-issue fee to cover the cost of collecting and disposing of unsold magazines—to be a per se violation justifying reversal of the lower court’s dismissal. Both Anderson News and their own case, Plaintiffs insist, are illustrations of the “well-recognized principal” that boycotts involving horizontal agreements among direct competitors are illegal per se.

Plaintiffs use the section on Rule 8 not only to address the general pleading standard—no heightened pleading standard exists, and while plaintiffs must plausibly allege an unlawful agreement, plausibility must be judged by reading the complaint as a whole, and may be alleged through direct or circumstantial evidence—but also to point out that “only facts that actually appear in the Complaint should be taken as true,” and, as such, extrinsic material submitted by Defendants should not be considered.

This is Plausible! The Direct and Circumstantial Evidence Alleged

The next two sections of the brief focus largely on plausibility: how the complaint alleged direct and circumstantial evidence of agreement, followed by an examination of why defendant’s arguments against plausibility fail. With respect to direct evidence, Plaintiffs point to statements, made by named executives of the Defendant organizations, quoted in the complaint, and claim that theirs is “the rare case where Plaintiffs have uncovered direct evidence of an illegal agreement.” In one such example, Plaintiffs highlight an admission by the Prime Broker Defendants, in which an executive stated that they had reached a “general agreement” that “industry advances,” as reflected by AQS, SL-x, and Data Explorers, should only “be achieved from within EquiLend.” The antitrust laws, Plaintiffs go on to say, “do not permit any group of competitors . . . to anoint themselves arbiters of whether innovation can occur in a market.”

Beyond this and other similar examples of direct evidence, Plaintiffs insist that “the Complaint also painstakingly explains how Defendants engaged in parallel and other highly probative circumstantial conduct as they lived up to their ‘general agreement.’” One element of this circumstantial evidence takes the form of individual, yet identical, demands by various Prime Broker Defendants to AQS that AQS become a “broker-only platform”: each insisted that they would not participate on the platform unless AQS barred lenders and borrowers from trading directly. Plaintiffs also push back on Defendants’ conclusion that this allegation is conclusory, despite not quoting precise language from the meetings, on the grounds that it alleges specific content of communications by specific Defendants. Plaintiffs further point to In re Credit Default Swaps Antitrust Litigation (“CDS”), a case in which dealer defendants conspired to block a trading platform from entering the CDS market, and argue that Judge Cote there found that similar “indirect” allegations to those pled here—such as communications made “under the auspices of board or committee meetings”—were sufficient to plausible support an inference of conspiracy.

To support the examples of indirect or circumstantial evidence, Plaintiffs further point to numerous “plus factors,” but take care to point out that such plus factors are only necessary “when a conspiracy claim rests solely on inferences drawn from allegations of parallel behavior”—not a situation Plaintiffs believe to apply to them, given their allegations of direct evidence. The plus factors they do cite, however, cover: (1) the high level at which the identified communications took place; (2) the common motive to conspire; and (3) an assertion that, absent the a conspiracy, it would have been against the self-interest of the individual defendants to boycott the new platforms—they would have been at risk of being left behind a market shifting in response to strong demand.

No, Really – This is Plausible! Defendants’ Implausibility Arguments Fail

In their opening brief, Defendants presented an assortment of arguments for why the group boycott alleged was, supposedly, implausible. Plaintiffs devote a portion of their brief to undercutting each of these arguments in turn. First, as regards the nine-year length of the conspiracy: Plaintiffs note Defendant’s failure to identify any case holding that conspiracies have a maximum time limit, and further drop a cite to a case finding it plausible that some of the very same defendants engaged in a “long-running conspiracy” lasting over a decade. The members of the conspiracy are similarly plausible, despite the presence in the market of, as defendant note, “dozens of other prime brokers,” because the six prime brokers named held more than three quarters of the total market share, and thus possessed not small amount of clout. Moreover, the Prime Broker Defendants together controlled a sufficient share of the industry that those other brokers alone could not provide sufficient liquidity. The Defendants had further argued that the very goals of the conspiracy were implausible, as the stock loan market was fundamentally unsuited for anonymous exchange, and that no market demand existed. In response, Plaintiffs note that, contrary to Defendant’s insistence that the identity of the lender is critical to assess the risk of a stock loan, most borrowers in the current OTC market do not demand to know the identity of lenders—nor would such information give any definite information as to the lender’s future intentions for the stock. Moreover, for those that did concern themselves with such details, anonymity on both the AQS and SL-x platforms was optional, not mandatory. More generally, Plaintiffs assert, if the market was so ill-suited to anonymous trading as Defendants contend, how did AQS attract the support of some of the largest lenders and borrowers of stock, or the oldest American venture capital fund, or one of the largest exchanges? Similarly, why was Quadriserve’s first anonymous trading offering so immediately popular with borrowers and lenders? Or why would Bank of America have initially provided so much support? Good questions, guys.

They’re a Team, but . . . [Addressing Group Pleading Contentions]

Plaintiffs counter Defendant’s allegation of impermissible group pleading first by pointing out the array of Defendant-specific detail in the Complaint—and further, by noting that the court in CDS rejected similar arguments where the complaint alleged the “conspiratorial participation of each defendant and listed the representatives attending various meetings at which the attendees were alleged to have colluded.”

With respect to Defendant’s argument that allegations against various members of the corporate families were insufficient, Plaintiffs point out that this type of pleading is “routinely allowed” at the corporate family level. This is particularly true, they claim, where the named employees have held themselves out as representing the interest of the corporate family as a whole.

Rule of Reason is not the Rule of this Road

In response to Defendant’s argument that the Court should apply the “rule of reason” to allegations concerning EquiLend, Plaintiffs again argue that per se treatment is most appropriate because the question of liability must be made by looking at the type claim as a whole, and not on individual allegations taken in isolation of one another. A per se claim, Plaintiffs, by way of the Second Circuit, explain, “does not lose that character simply because some individual allegations concern joint venture conduct.” Allegations involving Equilent, therefore, should not be taken in isolation, but considered as part of the whole.

Moreover, the Complaint does not, as Defendants suggest, center on actions taken by EquiLend, but on agreements Defendants made to restrain their actions in the stock loan market itself, outside of the joint venture. This makes the case fundamentally different, Plaintiffs explain, from Texaco, relied on the Defendants, which found that two companies which participated in a market only through a joint venture investment, and not also independently. The Prime Broker Defendants did not act as a “single firm” in the stock loan market, the way the Texaco defendants did, but instead remained horizontal competitors (or is that “competitors”?) and separate economic actors. With respect to the allegations concerning DataLend, which the Complaint alleges was created to “kill” DataExplorers by offering just enough data to undermine that entity, while preventing dissemination of real-time data in the market—a development Defendants knew would lead to pricing compression and reductions in their fees. Because each Prime Broker Defendant negotiated distribution agreements with DataLend in parallel, the actions constituted, according to Plaintiffs “plainly unlawful, naked restraint” of competition in the stock loan market.

And even if the court were to decide that the claims warranted some scrutiny beyond per se, Plaintiffs posit that such scrutiny would involve, at most, a “quick look” or truncated rule of reason analysis—a standard, Plaintiffs insist, they would easily satisfy. To that end, Plaintiffs point to an array of “truncation” cases, including one in which the deciding court took guidance from Moore to find that the rule of reason could sometimes, like the good St. Nick, “be applied in the twinkling of an eye.” (And for those of you unfamiliar with the reference, please note that those twinkling eyes were further accompanied by dimples—how merry!—and a nose like a cherry, neither of which have yet made it into an antitrust-related holding.)

Here we Stand: Plaintiffs have Antitrust Standing

Of the four “efficient enforcer” standards, Defendants argue that Plaintiffs fails to meet one criteria: speculativeness. Plaintiffs respond, however, that there is nothing speculative about the injuries suffered by borrowers and lenders in the stock loan market: they were deprived of more efficient, competitive, and transparent trading options, and that deprivation was a direct result of Defendants boycott. The goal of the conspiracy was to maintain inflated spreads, and the result—higher prices paid by borrowers and lenders—was the not just the logical and foreseeable result of Defendants actions, but, indeed, their intent. And while every antitrust lawsuit demands some degree of speculation—all plaintiffs must present an account of how the situation would have unfolded “but for” the wrongful conduct—that does not mean that those effects cannot be sufficiently estimated and measured. Indeed, Plaintiffs point out that AQS had in conducted analyses to quantify the economic benefits that borrowers and lenders would enjoy by way of its new platform.

No Time Outs Here: Plaintiff’s Claims are Timely

Plaintiffs can recover for antitrust injuries occurring prior to August 16, 2013, they argue, because the complaint readily satisfies the pleading standard for tolling. First, concealment may be pled where the wrongful behavior was of a self-concealing nature. As the CDS court has previously found, “[a] group boycott of exchange trading has the characteristics of other types of conspiracies that have been held to be self-concealing.” The next factor requires that Plaintiffs adequately plead their ignorance of the conspiracy; because key parts of Defendant’s misconduct, such as the secret meetings, were non-public facts uncovered by counsel during a thorough investigation, Plaintiffs could not have acquired knowledge sufficient to put them on notice. As for the 2009 news article cited by Defendants, Plaintiffs brush away: it contained no discussion of a boycott, nor, in almost 9000 words, more than a single passing mention of EquiLend. It provided no specific facts related to the conduct alleged by the complaint. Plaintiffs further point out that all of Defendant’s assertions regarding timeliness are highly fact specific, determination of which would require the development of an appropriate factual record.

EquiLend’s Participation

In response to the EquiLend Defendant’s motion, Plaintiffs focus on two arguments: the complaint plausibly alleged participation by EquiLend in a per se illegal conspiracy, and that specific personal jurisdiction does exist over EquiLend Europe.

Plaintiff’s assertions regarding EquiLend’s participation closely track behavior discussed in the main brief, so I’ll spend little time here on the topic. Let it suffice to say that EquiLend’s anticompetitive actions were illustrated through, among other things, the “general agreement” with the Prime Broker Defendants to accomplish all industry advances through that entity, the result of which was actions by EquiLend, like their agreement not to release valuable pricing data, that were clearly anti-competitive and thus, as per Plaintiffs, “more than sufficient to establish EquiLend’s participation in a per se illegal conspiracy.”

Shifting to the question of jurisdiction: EquiLend Europe is subject to jurisdiction under any one of three well-established doctrines: the “effects” test, the “conspiracy theory” of jurisdiction, and the “alter ego” doctrine. First, Plaintiffs note that the complaint details statements by individuals who sat on the board of EquiLend Europe—and who did not also sit on the board of the U.S. parent entity—in which those individuals invoked their involvement with EquiLend in a manner that suggests involvement in the conspiracy’s collective strategy.

Under the “effects” test, acts taking place as part of a conspiracy meet the test where those acts took place. Because EquiLend Europe’s conspiracy concerned the U.S. stock lending market, and caused harm to U.S. investors, the test has been met. The “conspiracy theory” test is met where a conspiracy existed, the defendant participated in that conspiracy, and the co-conspirator’s overt acts had sufficient contacts with the state to subject that co-conspirator to jurisdiction. Here, Plaintiffs argue, the conspiracy is well-pled, it is undeniable that acts of the co-conspirators took place in the state—for example, those executive dinners in New York—and those contacts can thus be imputed to EquiLend Europe. Third, the “alter ego” doctrine also allows for jurisdiction: EquiLend Europe has no separate website, CED, or other “C-suite” officers of it’s own, and Mr. Brian Lamb is responsible for global operations of not just EquiLend, but, to cite the EquiLend website, it’s affiliates as well. There is ample evidence, Plaintiffs argue, to pierce the corporate veil in these circumstances.

Conclusion

And that, my friends, concludes this installation of the Stock Loan Lowdown. You know there’s one more set of briefs out there, though, so watch this space for our review of the reply.

This post was written by Alexandra M.C. Douglas.

We welcome your feedback. If you have questions or comments about this post, please e-mail John M. Lundin, the Manipulation Monitor’s editor, at jlundin@schlamstone.com or Alexandra M.C. Douglas at adouglas@schlamstone.com or call John or Alexandra at (212) 344-5400.

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Interest rate swaps (IRS) are a frequently traded instruments known for their ability to reduce or increase one’s exposure to changes in interest rates. Buy-side funds and firms historically have been reliant on the major sell-side broker-dealer banks like Bank of America to purchase and sell IRS. However according to a number of actions MDL’d to Interest Rate Swaps Antitrust Litigation, No. 1:16-md-02704 (SDNY) (“IRS Antitrust Litigation”), in the late 2000s this was poised to change. New platforms, and swap execution facilities (“SEFs”) supposedly would have opened up “all to all” trading, in which buy-side firms could sell to other buy-side firms, breaking the broker dealers’ monopoly on the sale of swaps. According to the Plaintiffs, Defendants, the major buy-side banks, sabotaged this by preventing the creation of these all-to-all trading platforms, and otherwise conspiring to restrain their creation and growth. Plaintiffs allege that because of Defendants’ actions, the IRS market was less competitive and transparent, artificially preventing the narrowing of bid/ask spreads and thereby damaging the buy-side firms, when they purchased and liquidated their IRS positions at less favorable terms. In this post, we focus on the facts alleged in IRS Antitrust Litigation. In an upcoming posts we will unpack the procedural and factual developments to date.

What are IRS?

IRS essentially are bets that that allow investors to change their exposure to certain changes in interest rates without having to exchange actual underlying instruments. IRS are agreements by two parties to trade the interest cash flows from a particular interest bearing instruments, like bonds, without trading the instruments themselves. Plain vanilla swaps for instance trade fixed interest rate cash flows for those of an instrument with a floating interest rate, for instance one tied to an industry benchmark such as LIBOR.

How are IRS Traded?

Historically IRS were non-standardized instruments sold “over the counter” (“OTC”) in one-off “bespoke,” or specially tailored, transactions with the dealer banks like Bank of America, which would sell swaps to buy-side investors. Buy-side funds and firms would have to call for quotes from the dealer banks. This process was opaque in that it did not provide very much information to the buy-side funds about the actual market price of their purchase. However, in the last few decades, IRS contracts have become more and more standardized in their terms and form. Additionally, technology has made it so that anonymous, real time electronic quoting could become ubiquitous.

Overview of the Alleged Collusion

However, according to the allegations of Plaintiffs, buy-side funds such as pension and retirement funds, and asset management companies, in IRS Antitrust Litigation, while a number of platforms have emerged in the last decade or so, those platforms continue to use a “request for quote” (“RFQ”) protocol whereby buy side investors must give up their identity, and request quotes only from several dealer banks and no one else. Meanwhile the Defendants, large dealer banks including Bank of America, Barclays, BNP Paribas, and Credit Suisse, among others, are able to use their own interdealer bank (“IDB”) platforms that are anonymous, all-to-all (at least for the dealer banks who have access to them), and real time, much like exchanges for stocks.

According to Plaintiffs, Defendants have used their heavy hand to prevent the development of truly all-to-all platforms like the IDB platforms, stifling the growth of these platforms and relegating buy-side firms to the use of RFQ platforms in order to perpetuate an “OTC-like” state where buy-side firms are forced to go through the dealer banks, which could use the opaqueness of the market to artificially widen the bid-ask spread, the spread between the purchase and sale price of a particular position on a particular IRS instrument.

Plaintiffs allege Defendants accomplished this by backing the creation of Tradeweb, which adopted the RFQ system, then putting together investment groups, which collaborated with one another to prevent Tradeweb from implementing “all to all” trading, by installing themselves on Tradeweb’s boards and committees, and otherwise by preventing the IDB platforms like GFI Group by threatening to pull their business from the platforms, and through negotiating with entities like ICAP.

Moreover, while Title VII Dodd–Frank Wall Street Reform and Consumer Protection Act sought to forward centrally cleared and all-to-all purchased/sold IRS through SEFs, according to Plaintiffs, the dealer defendants have prevented central clearing on SEFs so that they could continue to control the clearing infrastructure of IRS, forcing buy-side firms to purchase through them. They did this by taking control of IRS clearinghouses like SwapClear through bankrolling their formation, and barring access to the clearinghouses without the payment of a “king’s ransom” to the clearinghouse’s default fund. Having barred access to the clearinghouses, dealer defendants’ allegedly forced the buy-side firms to trade on the RFQ platforms in order to be able to clear. Moreover, their boycotting and threatening of other SEF’s “smothered these entities in their crib” so to speak, preventing these entities from growing early in their formation, and preventing any means for the buy-side firms to break the Dealer’s monopoly.

According to the plaintiffs, because the buy-side Plaintiffs are forced to purchase on the artificial “OTC-like” RFQ platforms, they cannot break the monopoly and must continue to enter into IRS agreements at artificial and unfavorable terms.

Damages

Plaintiffs seek damages, restitution, injunctions and declaratory relief under Section 1 of the Sherman Act, 15 U.S.C. § 1 and their claim for Unjust Enrichment.

This post was written by Lee J. Rubin.

We welcome your feedback. If you have questions or comments about this post, please e-mail John M. Lundin, the Manipulation Monitor’s editor, at jlundin@schlamstone.com or Lee J. Rubin at lrubin@schlamstone.com or call John or Lee at (212) 344-5400.

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In our May 17, 2018, post, we alerted you to several lawsuits filed in the Southern District of New York alleging manipulation of the market for Mexican government bonds, and noted that one case had already moved to consolidate with other actions. Since then, on June 18, 2018, the Court granted motions by plaintiffs in all six of the following cases to consolidate and be granted leave to file a consolidated amended complaint: Oklahoma Firefighters Pension and Retirement System et al. v. Banco Santander S.A. et al., 18-cv-02830 (S.D.N.Y.); Manhattan and Bronx Surface Transit Operating Authority et al. v. Banco Santander S.A. et al., 18-cv-03985 (S.D.N.Y.); Boston Retirement System v. Banco Santander S.A., et. al., 18-cv-04294 (S.D.N.Y.); Southeastern Pennsylvania Transportation Authority v. Banco Santander S.A. et al., 18-cv-0440 (S.D.N.Y.), United Food and Commercial Workers Union and Participating Food Industry Employers Tri-State Pension Fund v. Banco Bilbao Vizcaya Argentaria S.A. et al., 18-cv-04402 (S.D.N.Y.), and Government Employees’ Retirement System of the Virgin Islands v. Banco Santander S.A. et al., 18-cv-4673 (S.D.N.Y.).

The Plaintiffs in those consolidated actions, now known as In re Mexican Government Bonds Antitrust Litigation, 18-cv-02830 (In re MGB), filed their Consolidated Amended Class Action Complaint (the “Complaint”), available here, on July 18, 2018. In this post, we provide an overview of the alleged facts in this newly filed complaint.

How the Mexican Government Bond Market Works

A Mexican Government Bond (“MGB”) is a debt security issued by the Mexican government (the “Government”) at regularly scheduled weekly auctions. There are four types of MGBs, each of which differ from each other in how interest is paid to the holder: Federal Treasury Certificates or “CETES” (short term bonds which do not pay interest to the holder until the bonds mature); Mexican Federal Government Development Bonds or “BONOS” (fixed-rate bonds with semi-annual coupon payments that have a maturity greater than one year); UDIBONOS (inflation-hedged coupon bonds that pays interest at a fixed rate); and Bondes D (issued with any maturity with a multiple of 28 days and pays a coupon every month).

The Plaintiffs present the MGB market as a three-tiered pyramid: the Government, as issuer, sits at the top, the Defendant “market maker” banks in the middle, and the consumers at the bottom. Not just anyone can bid in the Government’s weekly auctions. That privilege is reserved for participants in the Bank of Mexico’s “Market Maker Program,” who are also the Defendant Banks in these actions. In order to become market makers, the Defendants have to commit to bidding on the lower of (a) 20% of the amount of MGBs at each weekly auction or (b) 1 divided by the number of market makers for a particular type of MGB. The Defendants are also required to present “two-way quotes” to consumers on the secondary market: a quote to sell MGBs and a quote to buy them from consumers. Trades with consumers usually happened “over-the-counter.” It is from the difference between the price paid for the MGBs by the market makers at the Government’s auction and the price the MGBs are sold to consumers that the market makers make their profit.

Most importantly, market makers are not allowed to disclose their bids to each other prior to auction, and must offer competitive rates, and refrain from colluding.

The Alleged Collusion

Plaintiffs allege that the defendants conspired to rig MGB prices in at least three ways: (1) Defendants shared information with each other and coordinated bids submitted at the Government’s weekly auction, so as to fix the prices paid for bonds and the amount of bonds allocated to each bank; (2) Defendants then agreed to sell the bonds at fixed, artificially high prices to consumers on the secondary market; and (3) after the MGBs were initially offered on the secondary market, Defendants agreed to artificially widen the “bid-ask spread,” the difference between the bid price that a Defendant would agree to buy a particular type of MGB from a consumer and what a Defendants would agree to sell that same type of MGB for, as listed in the “two-way quote.”

In support of these allegations, Plaintiffs note an April 2017 announcement by Mexican regulator Comisión Federal de Competencia Económica (“COFECE”) that it had uncovered evidence of price-fixing and collusion in the MGB market. Plaintiffs cite public reports for the proposition that the conduct being investigated by COFECE involves both the Government’s auctions and the consumer market, and goes back to October 2006. Not only have the Defendants since acknowledged that they are targets of the COFECE investigation, but Plaintiffs plead that public reports have indicated that an unidentified Defendant has applied for and has been granted leniency under the Government’s cartel leniency program. This is significant because the terms of the program require that the applicant show to the Government that it has participated in a cartel, not just that it engaged in unilateral illegal conduct.

Besides the COFECE’s investigation and related public reports, Plaintiffs plead that various economic evidence shows support for collusion. Most of this economic evidence relates to comparison of bid activity between before the COFECE’s investigation was announced (“Pre-Announcement Period”) and after the COFECE investigation was announced. For example, the “bid dispersion” or difference between the highest and lowest bids at the Government’s MGB auctions for all BONOS increased 12.24% after the COFECE’s investigation was announced. Since a higher bid dispersion is consistent with more uncertainty in the market, it supports the inference that there was collusion prior to the investigation being announced. Plaintiffs assert that an adjustment of that comparison based on the U.S. Treasury Note Volatility Index found an even greater bid dispersion; Plaintiffs contend that this shows that the bid dispersion was not caused by macroeconomic factors.

Plaintiffs state that they found that the percentage of bonds received by each Defendant at the Government’s MGB auctions relative to what was bid for (known as the “fill rate”) was greater during the Pre-Announcement Period than the Post-Announcement Period. Plaintiffs allege that this difference between the Pre and Post-Announcement periods reflects the coordination of bids amongst Defendants. A comparison by Plaintiffs between the fill rates of the Defendants with non-market makers such as Mexican state-run pension funds shows less statistical volatility (lack of certainty) among the Defendants, which also supports collusion.

To support the allegation that Defendants agreed to fix the bid-ask spread, Plaintiffs compared the bid-ask spread between the Pre-Announcement and Post-Announcement Period. Plaintiffs found that the bid-ask spreads in the Pre-Announcement periods were 29% to 50% wider than in the Post-Announcement Period. According to Plaintiffs, this reflects collusion to quote wider spreads in order to make higher profits.

Besides these and other economic evidence not covered in this post, the Complaint also detailed how there was a “revolving door” of traders between the Defendants; many MGB traders previously worked together in the same bank, before moving on to work for another market maker. Plaintiff plead that these prior connections allow for closer relationships and more open lines of communication, which supports the inference of a conspiracy.

Finally, Plaintiffs detail admissions from the Defendants and findings from various regulatory authorities showing that the same Defendant banks have colluded to fix prices in other markets, such as the U.S. Dollar Libor benchmark rate. This evinces, Plaintiffs argue, a “practice [by defendants] of conspiring to increase profits by fixing prices for their benefit and at the expense of consumers.”

The Parties and Alleged Class

Defendants Santander Mexico, BBVA-Bancomer, JPMorgan Mexico, HSBC Mexico, Barclays Mexico, Citibanamex, Bank of America Mexico, Deutsche Bank Mexico, Banco Credit Suisse (Mexico), S.A., and ING Bank Mexico S.A. are alleged to be the market makers during proposed Class Period. Their relevant parent entities and certain other affiliates, including Banco Santander, S.A., BBVA S.A., JPMorgan Chase & Co., HSBC Holdings PLC, Barclays PLC, Citigroup Inc., Bank of America Corporation, Deutsche Bank Defendants, Credit Suisse Group AG, and ING Bank, N.V. are also defendants.

Plaintiffs Oklahoma Firefighters Pension and Retirement System (“OFPRS”), Electrical Workers Pension Fund Local 103, I.B.E.W (“EWPFL”), Manhattan and Bronx Surface Transit Operating Authority (“MaBSTOA”), MTA Defined Benefit Pension Plan Master Trust (“MTADBPPMT”), Boston Retirement System (“BRS”), Southeastern Pennsylvania Transportation Authority (“SEPTA”), Government Employees’ Retirement System of the Virgin Islands (“GERS”), United Food and Commercial Workers Union and Participating Food Industry Employers Tri-State Pension Fund (“UFCW Tri-State”) all invested in MGB and collectively traded MGBs with the Defendants, and allege to have suffered monetary losses from being “overcharged or underpaid in these transactions as a direct result of Defendants’ conspiracy to fix MGB prices in the United States.”

Class Allegations

The Complaint defines the proposed Class as follows:

All persons that entered into an MGB transaction between at least January 1, 2006, and April 19, 2017 (the “Class Period”), where such persons were either domiciled in the United States or its territories or, if domiciled outside the United States or its territories, transacted in the United States or its territories.

Excluded from the Class are Defendants and their employees, agents, affiliates, parents, subsidiaries and co-conspirators, whether or not named in this Complaint, and the United States government.

Damages

Plaintiffs seek damages (including treble damages), restitution, injunctions and declaratory relief under Section 1 of the Sherman Act, 15 U.S.C. § 1, Sections 4 and 16 of the Clayton Act under 15 U.S.C. §§ 15(a), and claims for unjust enrichment.

Motion to Dismiss Briefing

The Court and the parties have agreed that the date by which Defendants have to move against, answer or otherwise respond to the Complaint is September 17, 2018. Please stay tuned to this blog for further developments related to that briefing.

This post was written by John F. Whelan.

We welcome your feedback. If you have questions or comments about this post, please e-mail John M. Lundin, the Manipulation Monitor’s editor, at jlundin@schlamstone.com or John F. Whelan at jwhelan@schlamstone.com or call John Lundin or John Whelan at (212) 344-5400.

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There is indeed gold “in them hills” if you are willing to lie to get it, at least according to the allegations in a number of precious metals litigations that have sprung up since 2013. Currently there are no less than two multi-district litigations relating to gold and silver, and a separate action with respect to platinum and palladium. These actions are respectively: In re: Commodity Exchange, Inc., Gold Futures and Options Trading Litigation, 1:14-md-02548-VEC (SDNY) (“In re Gold Derivatives Litigation”); In re: London Silver Fixing, Ltd., Antitrust Litigation, No. 1:14-md-02573 (SDNY) (“In re Silver Derivatives Litigation”); and In re: Platinum and Palladium Antitrust Litigation, 1:14-cv-09391 (SDNY) (“In re Platinum and Palladium Antitrust Litigation,” collectively “the Precious Metals Fixing Litigation”). Each of these actions allege similar manipulation of the fixing process for the “fix,” the daily benchmarks for precious metals which influences the value of physical precious metals, spot, the commodity price, and associated derivatives, including futures and options (“Precious Metals Investments”). While these litigations contain a veritable gold mine of litigation content to explore, in this post, we will focus on the allegations in the Precious Metals MDLs. We will leave digging into what has been going on in these litigations till a later date.

Overview of the Alleged Collusion

To sift these allegations down to a single nugget: Plaintiffs, a number of individuals, businesses and funds, allege that Defendants, several large broker dealer banks including UBS, Barclays, Deutsche Bank, Bank of America, and HSBC, among others (the “Fixing Banks”), manipulated the fix through The London Gold Market Fixing Limited, The London Market Fixing, Ltd. and The London Platinum and Palladium Fixing Company, (the “Fixing Companies”), the companies responsible for the promotion, administration and conduct of the fixing process.

What is the Fixing Process?

The fixing process is a method developed long ago to set a benchmark, the “fix,” for the price of precious metal. Each day during the “fixing,” at least in theory, a Walrasian auction is supposed to occur, where that day’s spot price is announced in the afternoon, at the same time each day, commencing a simultaneous blind auction. That auction includes numerous individuals, including the Fixing Banks themselves, who submit orders to buy and sell to the Fixing Banks. This information is supposed to be held, shared, and used simply to calculate the benchmark fix which is announced later in the afternoon of that same date.

The “Fixing” of and with the Fix

According to the Plaintiffs, the fix would then influence the prices of physical precious metals along with their spot, and derivatives, which are all correlated and influenced by this benchmark rate. However, given that that information was being shared amongst the Fixing Banks, and with no oversight from any organization or government entity, the Fixing Banks are alleged to have used their shared material nonpublic information to take bets and otherwise influence the market for various Precious Metal Investments. They would have daily collaborative calls wherein they would discuss how they would use their vast combined resources to influence the position of the fix and the Precious Metal Investments, and otherwise take bets on the various precious metal instruments. They would also have discussions in chat rooms, on phone calls, and through instant messages to continue to share information and to make sure that every member of their cartel was acting in unison. They would also spoof, or engage in wash sales, that is to say create fake orders or sales during the Fixing Process window to give the illusion that there was more demand or supply to influence price in their desired direction with reference to various Precious Metal Investments, especially precious metal futures, like those traded on COMEX.

In general, Plaintiffs allege that they were on the other side of these trades and were damaged thereby. In the case of In re Gold Derivatives Litigation, for instance, Plaintiffs allege that Defendants’ conduct decreased competition, and artificially lowered prices of gold, thereby injuring the plaintiffs as a class, which caused a loss, or a net loss, when they sold their physical gold, spot, and gold derivatives. Similarly there are allegations in the Precious Metals Fixing Litigation in general that Defendants used their ability to control the price of Precious Metals Instruments to take advantage of their clients’ instruments and orders, such as stop-loss orders, to force their clients to enter into transactions that were favorable to the Defendants, and allowed these Defendants to make artificial margin calls, demands from the broker Fixing Banks to their client to deposit additional funds or securities so that the investor’s margin collateral account would be raised to a certain contractually agreed upon level. These are just some of the ways in which the Fixing Banks used their total control of the fix to manipulate the precious metals market.

Damages

Plaintiffs seek damages, restitution, injunctions and declaratory relief under Section 1 of the Sherman Act, 15 U.S.C. § 1, the Commodity Exchange Act under 7 U.S.C. §§ 1 et seq., and claims for unjust enrichment.

This post was written by Lee J. Rubin.

We welcome your feedback. If you have questions or comments about this post, please e-mail John M. Lundin, the Manipulation Monitor’s editor, at jlundin@schlamstone.com or Lee J. Rubin at lrubin@schlamstone.com or call John or Lee at (212) 344-5400.

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Hello sports fans, and welcome back—I know you’ve all been standing by for a second slice of the strange and scintillating story of shenanigans in the snarled sphere of HFT. In this supplemental stab at spelling out the slightly circuitous state of the stock exchange nation, we will cover the Exchange Defendant’s renewed motion to dismiss, Plaintiff’s opposition to that motion, and, finally, Defendant’s reply brief.

And if you’re curious as to where the story currently stands, I encourage you to spend a few seconds skimming our first installment — that post contains background to the high frequency trading market, as well as an overview of past motion practice and the remaining Section 10(b) and Rule 10b-5 claims contained in the Second Consolidated Amended Complaint (SCAC), to which this renewed motion to dismiss applies.

Here We Go Again: The Exchange Defendant’s Renewed Motion To Dismiss

The December 2017 decision from the Second Circuit held that the Exchanges were not entitled to absolute immunity with respect to the securities fraud claims, thus vacating the lower court’s dismissal. Defendant’s motion to dismiss the SCAC was accordingly limited to grounds for dismissal not yet addressed—and much pithier than earlier briefings, as a result.

Defendant’s motion presents in two parts: first is the straightforward argument that the SCAC fails to plead either Article III standing, or to state a claim upon which relief can be granted; second, Defendants argue that Plaintiff’s remaining claim, brought under Section 10(b) of the Exchange Act and Rule 10b-5, are in fact precluded by the Exchange Act insofar as the claim obstructs the SEC’s comprehensive regulatory structure.

• Standing

According to Defendants, to successfully plead Article III standing, Plaintiffs are required to allege that they have suffered an injury-in-fact, and that such an injury was directly traceable to Defendant’s challenged conduct. Because Plaintiffs have not specified “even basic transaction details [or] factual allegations that anyone was injured, much less that they were among the injured,” they simply have not pleaded Article III standing, and the claim should be dismissed under Rule 12(b)(1).

Defendant’s second standing argument is premised on the purchaser-seller statutory standing rule, which “limits the class of plaintiffs to those who have at least dealt in the security to which the . . . representation or omission relates.” This argument focuses on the same lack of specificity as covered in the Article III standing argument—namely, Defendants believe that, in order to meet standing requirements, Plaintiffs are required to identify the specific securities that are the subject of manipulation with a high degree of specificity. Moreover, Defendants assert that the “in connection with” requirement of Rule 10b-5 cannot save Plaintiffs claim, as it is separate and additional to the “purchaser or seller” standing rule.

• Failure to State a Claim Upon Which Relief Can Be Granted

Arguing under Rule 12(b)(6), Defendants further claim that the SCAC does not adequately plead reliance, loss causation, scienter, or the falsity of any alleged misstatement. A plaintiff may establish reliance through either direct reliance or through one of two recognized presumptions of reliance: a “fraud-on-the-market” presumption allows reliance on public statements, and the Affiliated Ute presumption, which arises where there is an omission of a material fact by one with a duty to disclose. Defendants posit that the reliance Plaintiffs pled was limited to an “integrity of the market in the securities listed and traded on the public exchanges”—and that this theory does not qualify as actual reliance, or fall into either of the identified presumptions of reliance. Specifically, there is no “fraud on the market” reliance because “Plaintiffs have failed to plead the existence of an efficient market for a specific security,” and do not point to statements made by the Exchange Defendants that could have affected the price at which Plaintiffs traded. Affiliated Ute is similarly unavailing, according to the Defendants, because it simply does not apply to market manipulation claims, and, further, because the presumption only applies where there are actionable omissions in the face of fiduciary duties owed—and the Exchange Defendants owed no fiduciary duties to the investors. Moreover, defendants insist, Plaintiff’s “integrity of the market” theory was rejected by the Second Circuit in the 2013 Fezzani v. Bear, Stearns & Co. decision.

Loss causation—a specific economic harm resulting from a defendant’s conduct—requires that Plaintiffs must allege not only that they bought or sold specific securities at manipulated prices, but also that the prices of those securities would have been lower or higher, respectively, absent such manipulative conduct. If you’re sensing a theme in Defendant’s arguments here, well, let’s just say you’re not alone.

Defendants turn next to scienter—particularly important in manipulation claim, they point out, as scienter is oftentimes the only factor distinguishing legitimate trading from improper manipulation. The PLRSA requires that the facts alleged give rise to a strong inference that defendants acted with the required state of mind; this can be proved through facts showing either (a) that defendants had both motive and opportunity to commit fraud, or (b) strong circumstantial evidence of conscious misbehavior or recklessness. As Plaintiffs rely on circumstantial evidence, they must demonstrate conscious recklessness, and, Defendants argue, the conduct they allege is within the core functions of the Exchanges and one thus cannot infer an intent to defraud—particularly because the products and services concerned were publicly disclosed.

Finally (for the 12(b)(6) section, at least), Defendants argue that Plaintiffs have not pled the falsity of any alleged misstatement with sufficient particularity. First, Plaintiffs have waived any attempt to base claims on alleged misstatements, rather than manipulation, when they failed to respond to challenges to that theory in the earlier motion to dismiss. Second, Defendant again fall back on lack of specificity in the SCAC: Plaintiffs identified only generic statements about market integrity, any do not show how any challenged statement was in fact false or misleading.

• Preclusion

Defendant’s other main argument for dismissal deals with the perceived conflict between Plaintiff’s claims and the comprehensive regulatory structure provided by the Exchange Act. Private lawsuits, Defendants argue, undermine Congress’ intent that the SEC is the expert in the field and the entity making rules regarding the markets. Relying on Credit Suisse Secs. (USA) LLC v. Billing, Defendants lay out the four-factor framework to be used in determining whether or not the Exchange Act’s regulatory scheme precludes private claims:

(1) the existence of regulatory authority under the securities law to supervise the activities in question;
(2) Evidence that the responsible regulatory entities exercise that authority;
(3) The ‘risk’ that allowing the claims to proceed would produce conflicting guidance, requirements, duties, privileges, or standards of conduct; and
(4) Whether the conduct at issue lies squarely within an area of financial market activity that the securities law seeks to regulate.

Based on these four factors, Defendants believe that Plaintiffs claims should be precluded. With respect to factor one, the SEC clearly possess the regulatory authority to supervise the conduct about which Plaintiffs complain: the Exchanges are in fact required to file proposed rule changes before making any of the offerings covered in the SCAC—the proprietary feeds, the co-location services, and the complex order types—and the SEC must approve these rules before they are promulgated. As to the second factor, it is clear that the SEC does in fact exercise its regulatory authority on these topics. For example, the SEC has instituted enforcement proceedings concerning proprietary data feeds not in compliance with SEC rules. The third factor also favors preclusion, according to Defendants, because there is actual conflict between Plaintiff’s claims and the Exchange Act’s regulatory structure. Specifically, the SEC has approved all of the challenged services, warts and all, and concluded that they are consistent with the SEC rules. They have thus exercised their expertise and authority, and Plaintiff’s challenge to the same approved practices are an explicit conflict. Finally (for real…for this section), the fourth factor also favors preclusion because all of the challenged products and services “lie squarely within an area of financial market activity that securities law seeks to regulate”: all of these products and services relate to the dissemination of information, and that is firmly within the remit of the SEC.

Excuse Me, I Have Something To Say: The Plaintiff’s Oppose This Motion

Making full use of the case-saving Second Circuit decision, the preliminary statement of Plaintiff’s opposition quotes heavily from that document, taking particular note of the following excerpt:

[The SCAC] sufficiently pled that the exchanges created a fraudulent scheme that benefitted HFT firms and the exchanges, sold the products and services at rates that only the HFT firms could afford, and failed to fully disclose to the investing public how those products and services could be used on their trading platforms.
They also take the time to point out that the Second Circuit had further held that the SCAC “sufficiently alleges conduct that can be fairly viewed as manipulative or deceptive within the meaning of the Exchange Act,” and that Defendants had committed “primary” violations of Section 10(b) and Rule 10-5.

• Standing

In response to Defendant’s arguments against standing, Plaintiffs focus on the historically broad interpretation of the “purchaser or seller” standard set in Blue Chip. Specifically, they point out that the court has previously held that a sale of a security, plus a fraud used “in connection with it,” is sufficient for redress under Section 10(b). Plaintiffs further note that “neither the SEC nor the Supreme Court has ever held that there must be a misrepresentation about the value of a particular security in order to run afoul of the Exchange Act,” and go on to identify several cases in which courts have “espoused a broad interpretation of the “in connection with” phrase.

In addition to this broad interpretation, Plaintiffs rely on In re Blech Sec. Litig. and Sharette v. Credit Suisse Int’l for the argument that “allegations of the nature, purpose, and effect of the fraudulent conduct and the roles of the defendants are sufficient for alleging participation” because, very practically, the exact mechanism of the fraudulent scheme is unlikely to be known to the Plaintiffs.

• Failure to State a Claim Upon Which Relief Can Be Granted

On the topic of scienter, Plaintiffs responsive argument focused on the duty of the court to “assess all allegations holistically” to answer the question: “When the allegations are accepted as true and taken collectively, would a reasonable person deem the inference of scienter at least as strong as any opposing inference?” They further argue that the SCAC successfully pleads scienter under the “motive and opportunity” theory because they are able to show—through the substantial kickback payments received by the Exchanges for providing the HFT firms access to material trading data via enhanced feeds and access to trading floors, and for implementing complex new order types—that Defendants benefited in a concrete manner from the purported fraud. They note other cases in which similar profits were held sufficient under a motive and opportunity theory, and point again to the Second Circuit’s decision in this case, where it held that the Plaintiffs had sufficiently pled that Defendants had created a fraudulent scheme benefiting the exchanges and the HTF firms.

Under the indirect theories of scienter, Plaintiffs also argue that the allegations contained in the SCAC collectively supply sufficient circumstantial evidence from which one could infer recklessness. Even if the specific manipulative intent was not shared as between the HFT firms and the Exchange Defendants, the Court could still infer that the Defendants knew, or were reckless in not knowing, that their actions catered to the HFT firms at the expense of individual and institutional traders. Plaintiffs further point to the Defendant’s active concealment of their schemes—namely, the functionality and use of their complex order types—despite the fact that the “guaranteed economics” of those schemes would come at the expense of Plaintiffs.

With respect to reliance, Plaintiff’s insist that the allegations of the SCAC are sufficient both because the Affiliated Ute presumption applies, and because the complaint pled reliance on the integrity of the public markets. First, Plaintiffs undercut Defendants assertion that Affiliated Ute does not apply simply because the exchanges owned no fiduciary duties with a citation to In re IPO, which held that “where a defendant has engaged in conduct that amounts to market manipulation under Rule 10b-5 (a) or (c), that misconduct creates an independent duty to disclose.” On the integrity of the market theory, Plaintiff points to ATSI and In re Blech, both of which permitted a plaintiff to plead reliance by alleging than an injury was caused by reliance on “an assumption of an efficient market free of manipulation.” Plaintiffs make use of a footnote to differentiate their application of the case with the Court’s earlier decision concerning the Barclays defendants: Affiliated Ute did not apply there because Plaintiffs did not adequately plead that Barclays had committed manipulative acts, and because what claims were made against Barclays were based on misrepresentations, not the omissions that Affiliated Ute is concerned with. In contrast, Plaintiffs claims against the Exchange Defendants are not based on misrepresentations, and the Second Circuit has already found that Plaintiffs adequately alleged market manipulation.

On loss causation, Plaintiffs point out that, at the pleading stage, it is only necessary that they provide defendants with notice of what the relevant economic loss might be, or what the causal connection between the loss and their misconduct their might be. Moreover, manipulation cases are “simply different” from regular securities fraud cases, and the relevant standard does not require specifics of what price was paid for what security.

Addressing Defendants Article III standing argument, Plaintiffs first note that, because the issue was not raised in Defendant’s earlier motion, it should not be raised now. Even if it is permitted, Plaintiffs argue that the bar for alleging an injury sufficient to meet Article III’s requirements is a low one, and one that the SCAC easily surpasses. It is enough, Plaintiffs note, quoting Harry v. Total Gas & Power N. Am. Inc., that the alleged manipulation is “within the realm of possibility.”

• Preclusion

The final section of Plaintiffs brief addresses Defendant’s preclusion arguments. First protesting that the concept of preclusion is merely a rehash of their original motion to dismiss, but under a different framework. Namely, Defendants assert that private lawsuits would conflict with congressional intent that the SEC make the rules regulating the market, but the Second Circuit addressed this contention:

Plaintiff’s claims are not a challenge to the SEC’s general authority or an attack on the structure of the national securities market. Instead, they are properly characterized as allegations of securities fraud against the exchanges that belong to that ordinary set of suits in equity . . . .

Plaintiffs further argue that the preclusion defense, like the Article III standing claim, is barred at this stage in the proceedings. Under FRCP 12(g)(2), a party is foreclosed from making successive, pre-answer 12(b) motions that include new defenses.

Moving on the Defendant’s application of the four Credit Suisse factors: Plaintiff’s first argument is that the test simply does not apply. The Supreme Court identified these factors, Plaintiffs argue, as considerations relevant to the determination of whether “the securities laws are clearly incompatible with the application of the antitrust laws.” Because this case does not arise under antitrust law, and because no other case has attempted to apply the factors to cases in which an Exchange act claim was precluded by the Act’s own regulatory structure, the test is simply not applicable under these circumstances. And even if the preclusion defense is properly presented in this case, it is, or so Plaintiffs argue, not ripe for decision at this point—there are questions of fact that remain.

The Last Word: The Exchange Defendant’s Reply Memorandum

Defendant’s reply memorandum closely tracks the same three arguments presented in its opening brief. First looking at standing, continue to insist that the SCAC does not adequately plead Article III standing because it “contains no factual allegations sufficient to show anything about the impact” of the challenged products and services, and thus fails to show how any trade of theirs was negatively impacted, or how they relief sought would address their injury. With respect to statutory standing, Defendants view plaintiff’s arguments as ignoring the purchaser/seller standing requirement in favor of assertions that the “in connection with” clause be read broadly—and argument with fails, according to Defendants, because the “in connection with” standard is separate from the purchaser/seller requirement.

The next section of Defendant’s reply attacks Plaintiffs arguments on reliance, loss causation, and scienter. Reliance has not been adequately pled, Defendants argue, because both the Affiliated Ute presumption and the “integrity of the market” theory were rejected in the court’s initial motion to dismiss decision as it related to Barclays, and that Plaintiff’s attempt to distinguish the two were unavailing. With respect to loss causation, Defendant’s decry Plaintiff’s “attempt to reduce their loss causation burden to a triviality,” and insist that “under any reasonable understanding of loss causation, Plaintiff have to offer more than the general allegations they present here.” For scienter, Defendants point to Second Circuit precedent making clear that generalized allegations of motives possessed by all corporations—namely, increasing profitability—are insufficient to plead scienter.

Finally, on claim preclusion, Defendants react strongly to Plaintiff’s suggestion that the argument is merely a prior argument recast: “Although some aspects of this argument [. . .] overlap with arguments the exchanges have made before, that does not make the arguments the same.” They further argue that, contrary to Plaintiff’s analysis, the Credit Suisse factors not only apply to when the Exchange Act precludes a claim brought under federal law, but that an application in that context makes even more sense than its present application to antitrust cases.

Conclusion

For those who have read to the bitter end: congratulations! This does conclude our HFT write-ups for the time being, but when the motion to dismiss decision is issued, you know where to come for the liveliest—or at least lengthiest—summaries in the blogosphere.

This post was written by Alexandra M.C. Douglas.

We welcome your feedback. If you have questions or comments about this post, please e-mail John M. Lundin, the Manipulation Monitor’s editor, at jlundin@schlamstone.com or Alexandra M.C. Douglas at adouglas@schlamstone.com or call John or Alexandra at (212) 344-5400.

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In our June 6, 2018, post, we gave an overview of the general factual allegations made in In Re: Libor-Based Financial Instruments Antitrust Litigation, 11-MD-02262 (In re Libor), the multi-district litigation in the Southern District of New York where many civil cases relating to manipulation of LIBOR or the London Interbank Offered Rate for the U.S. dollar have been transferred. In this post, we discuss class certification of the various plaintiff-groups in In re Libor.

On February 28, 2018, in a Memorandum and Order available here, U.S. District Judge Naomi Reice Buchwald ruled on motions for class certification for all three plaintiff groups. This post only highlights certain rulings from that nearly 400 page decision. Much of the decision, for example, rules on Daubert motions challenging whether expert opinions offered in support of class certification are reliable such that they can be considered by the Court. That discussion is not covered here.

Class Certification

The main issues surrounding the various proposed classes’ certifications were whether each had Article III standing under the U.S. Constitution, had satisfied the prerequisites for class certification under Fed. R. Civ. P. 23, and whether the class definitions were objective such that identification of particular members would be feasible (the ascertainability requirement).

Fed. R. Civ. P. 23(a) only allows a member of a class to sue on behalf of the other members of a class if “(1) the class is so numerous that joinder of all members is impracticable [numerosity]; (2) there are questions of law or fact common to the class [commonality]; (3) the claims . . . of the representative parties are typical of the claims . . . of the class [typicality]; and (4) the representative parties will fairly and adequately protect the interests of the class [adequacy of representation].” Fed. R. Civ. P. 23(b) additionally requires that one of three categories be met. All three proposed classes sought certification under 23(b)(3), which requires that the Court find that “the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.”

Exchange Based Plaintiffs

The exchange-based plaintiffs sought certification of a class defined as:

All persons, corporations and other legal entities (other than Defendants, their employees, affiliates, parents, subsidiaries, and co-conspirators) (“Eligible Persons”) that transacted in Eurodollar futures and options on Eurodollar futures on the Chicago Mercantile Exchange between January 1, 2005 and May 17, 2010 (the “Class Period”) and that were harmed or satisfy one or more of “A,” “B,” or “C” below.

SUBPART A. Eligible Persons that sold a Eurodollar futures contract, or bought a put option or sold a call option on Eurodollar futures before August 7, 2007 and purchased all or part of this short position back at the final expiration formula price of a Eurodollar futures contract expiring after August 7, 2007 and before May 17, 2010.

SUBPART B. Eligible Persons that (1) purchased Eurodollar futures contract(s) or call options on Eurodollar futures on the following dates: April 7, 2006, August 17, 2006, October 26, 2006, and December 22, 2006; or (2) sold Eurodollar futures contracts or purchased put options on Eurodollar futures on the following dates: September 29, 2005, November 28, 2005, June 30, 2006, September 1, 2006, November 29, 2006, February 28, 2007, March 1, 2007, July 30, 2007, and August 6, 2007; or (3) purchased or sold Eurodollar futures contracts (or options) and that were harmed between January 1, 2005 and August 6, 2007 inclusive.

SUBPART C. Eligible Persons that initiated a Eurodollar futures contract or options position on or after April 15, 2009 and on or before May 17, 2010 (“Period 3”), and who satisfy “1” or “2” below.

1. Eligible Persons included in “C” are those that purchased or sold a Eurodollar futures or options contract to initiate a position during Period 3 that were harmed.
2. Eligible Persons included in “C” are also those that purchased a Eurodollar futures contract (including Eurodollar futures contracts the expiration for which was less than 365 calendar days after the date of such purchase) to initiate a long position during Period 3, and continued to hold all or part of such long position until liquidating the position after Period 3.

The Court analyzed class certification for the Exchange-Based plaintiffs by treating them as two separate subclasses: one based on those seeking claims under a trader-based manipulation theory (the “Trader-Based Subclass”) and those seeking claims under a persistent suppression theory (the “Persistent Suppression Subclass”).

The Trader-Based Subclass consists of Eurodollars futures traders who held certain Eurodollar future positions on dates specified in subparts B.1 and B.2 of the class definition and traders who “were harmed” as a result of trader-based manipulation during the Class Period (January 1, 2005 to May 17, 2010). It was found to have Article III standing, and to have met the numerosity and commonality requirements of Rule 23(a) and the ascertainability requirement. However, the Court found that the Trader-Based Subclass failed to meet the typicality and adequacy of representation requirements of Rule 23(a) and the predominance and superiority requirements of Rule 23(b)(3). Trader-based claims were found to be too “day-to-day” and “episodic” in nature to be considered to have all arisen from the “same events and conduct” and thus could not meet the typicality requirement under Rule 23(a). The class members were also found to have heightened conflicts between them such that the adequacy of representation requirement could not be met. Specifically, since members had different net trading positions on Eurodollar futures contracts on different days, members have differing incentives in establishing the existence of and magnitude of manipulation on different days.

The Court also found that there were too many individual questions concerning one of the defendants’ intent to manipulate Eurodollar futures prices, the extent of LIBOR manipulation, the impact of manipulation of Eurodollar futures, and the damages of individual class members to find Rule 23(b)(3) predominance requirement to have been met.

Thus, the Court denied class certification for the Trader-Based Subclass.

The Persistent Suppression Subclass consists of those who 1) purchased a Eurodollars futures contract when prices were artificially inflated; 2) sold a Eurodollars futures contract when prices were artificially depressed; 3) purchased a Eurodollars futures call option or sold a Eurodollars futures put option when Eurodollars prices were artificially inflated; or 4) sold a Eurodollars futures put option or purchased a Eurodollars call option when Eurodollar futures prices were artificially depressed.

The Court found that the persistent suppression subclass to have met the ascertainability requirement and all four Rule 23(a) requirements. However, the Court found that the persistent suppression subclass did not meet the Rule 23(b)(3)’s predominance and superiority requirements. There were too many individualized questions of specific intent to manipulate Eurodollar futures prices through reputation-motivated suppression of LIBOR, the existence and causation of artificial Eurodollar futures prices, and damages for common question to sufficiently predominate. For the same reasons, the Court also found that a class action would not be superior to other to other available methods for fairly and efficiently adjudicating the controversy.

Thus, the Court denied class certification for the Persistent Suppression Subclass.

Lender Plaintiffs

Berkshire Bank (“Berkshire”), the sole Lender Plaintiff remaining, sought certification for a class defined as:

All lending institutions headquartered in the United States, including its fifty (50) states and United States territories, that originated loans, held loans, purchased whole loans, purchased interests in loans or sold loans with interest rates tied to USD LIBOR, which rates adjusted at any time between August 1, 2007 and May 31, 2010.

The Court found that Berkshire met Rule 23(a)’s numerosity, commonality, and typicality requirements, and had also met the ascertainability requirement. However, Berkshire failed to show adequacy of representation. The Lender Defendants brought to the Court’s attention that interim class counsel agreed to pay Berkshire’s CEO’s son, an attorney, 15% of the net fees received in exchange for responsibility and work done on the litigation. There is not a per se rule against there being a familial or business relationship between class counsel and a class representative; it is rather a fact-sensitive inquiry. Since the relationship was not disclosed by the plaintiff, Berkshire CEO’s son had a limited role in the litigation (he had not even filed a notice of appearance or signed any papers, but merely reviewed filings and provided comments to class counsel), and would likely receive more in fees than Berkshire stood to receive in discovery, the Court found that in this instance that relationship was close enough to render Berkshire inadequate as a class representative.

Although the Court could have denied class certification of a class with Berkshire as its representative on that basis alone, it went on to analyze whether questions of law or fact common to class members predominate over any questions affecting only individual members, and whether a class action for the Lender Plaintiffs would be superior to other available methods for fairly and efficiently adjudicating the controversy

Regarding predominance, the Court found that there were too many individual questions concerning reliance, damages, affirmative defenses, and variations in state law for the common question of misrepresentation to dominate. For example, because different lenders have different exposure to LIBOR, different reasons for issuing loans, different understanding of what LIBOR represents, and different knowledge of whether LIBOR was being manipulated, issues regarding the reliance element of Berkshire’s common law fraud claim were all individual. The issue of damages was also considered to be individualized, since related questions such as what alternative rate a plaintiff would have used, what the but-for spread on each loans what have been, the other terms a loan contained, and other instruments taken into account in the netting calculation were all individual issues. This lack of predominance and the variation in state law regarding the Lender Plaintiff’s claims also created manageability problems that led the Court to conclude that a class action would not be superior to individual actions.

Thus, the Court denied class certification for the Lender Plaintiff class.

Over-the-Counter (“OTC”) Plaintiffs

The OTC Plaintiffs sought certification of a class defined as:

All persons or entities residing in the United States that purchased, directly from a Panel Bank (or a Panel Bank’s subsidiaries or affiliates), a LIBOR-Based Instrument that paid interest indexed to a U.S. dollar LIBOR rate set any time during the period August 2007 through August 2009 (“Class Period”) regardless of when the LIBOR-Based Instrument was purchased.

“LIBOR-Based Instrument” was defined as:

LIBOR-Based Instrument” means an interest rate swap or bond/floating rate note that includes any term, provision, obligation or right for the purchaser or counterparty to be paid interest by a Panel Bank (or a Panel Bank’s subsidiaries or affiliates) based upon the 1 month or 3 month U.S. dollar LIBOR rate. For the avoidance of doubt, the term LIBOR-Based Instrument does not include instruments on which a Panel Bank (or a Panel Bank’s subsidiaries or affiliates) does not pay interest, such as bonds/floating rate notes issued by entities other than Panel Banks (or Panel Banks’ subsidiaries or affiliates). Nor does the term include instruments that include only a term, provision, or obligation requiring the purchaser or counterparty to pay interest, such as business, home, student or car loans, or credit cards.

The Court granted the OTC plaintiffs’ motion for class certification in part and denied it in part.

First, the OTC defendants challenged the proposed class’ Article III and class standing by arguing that since the remaining OTC plaintiffs only allege that they purchased LIBOR interest-rate swaps, and not bonds, they cannot assert claims on behalf of bondholders. The Court agreed with the OTC plaintiffs that the difference between the types of financial instruments did not deprive the proposed class of Article III standing, since plaintiffs only have to show that the purchase of each type of instrument can be traced to some type of injury-in-fact, not the same injury-in-fact. Similarly, because the purchase of interest rate swaps concerned the same set of concerns related to defendants’ conduct, the OTC plaintiffs were also found to have class standing to represent bondholders.

The OTC plaintiffs were also found to have met Rule 23(a)’s numerosity and commonality requirements. The Court could not find the breach of implied covenant of good faith and unjust enrichment claims of named OTC plaintiff Bucks County Water and Sewer Authority (“Bucks County”) against the Royal Bank of Canada (“RBC”) to be typical, however, since RBC asserted that Bucks County released those claims in a 2012 agreement with RBS, a unique defense that threatened to become a central focus of the litigation since Bucks County was the only plaintiff still asserting claims against RBC. Class certification against RBC was therefore denied. The OTC Defendants also disputed whether the entire class could meet Rule 23(a)’s typicality requirement, arguing that the defense of whether plaintiffs suffered any injury at all was so individualized and economically complex that it was unique for each plaintiff. The Court rejected this argument, however, and ruled that the fact that damages would have to be calculated on an individual basis did not defeat typicality. The typicality requirement was found to have been met, therefore, for all claims, except for those against RBC.

THE OTC Defendants also argued that plaintiffs could not meet the adequacy of representation requirement, as each class member would have an incentive to establish lower amounts of suppression at the time it entered into a swap and greater suppression thereafter, in order to minimize the extent to which absorption will reduce its damages. Although the Court did acknowledge that there are conflicts created by differing incentives among plaintiffs to show lower amounts of suppression, such conflicts were not fundamental, since the one-directional nature of suppression would constrain the conflict.

For purposes of addressing whether questions of law or fact common to the OTC plaintiffs predominate over any questions affecting only individual members, the Court analyzed the OTC plaintiffs’ antitrust claims separately from their state-law implied covenant and unjust enrichment claims. The Court found that common questions predominated the OTC plaintiffs’ antitrust claims, since evidence of defendants’ alleged price-fixing conspiracy would be subject to common proof and the only individualized questions related to individual damages, which was not enough to find against predominance. However, the Court found that common questions did not sufficiently predominate over various state law claims. Claims regarding the implied covenant of good faith would have to be determined by various transaction-specific agreements which did not uniformly designate the same forum for choice-of-law. Similarly, the unjust enrichment claim would be governed by the law of the state in which the class member resides or has a principal place of business. Since the class definition extends to all 50 states, the variation in state law precluded class certification for that claim.

For similar reasons, the Court found that a class action is superior to other available methods for adjudicating the antitrust claims, but not for the state law claims.

Conclusion

In summary, the Court certified a class for the OTC plaintiffs as to the antirust claims against Bank of America and JPMorgan Chase only, but did not certify a class for state-law claims.

Even in more niche financial instruments, there are a number of cases asserting allegations of secondary market and bid spread manipulation. This is true of the supranational, sub-sovereign, and agency bond market, better known as the “SSA” market. Since late 2016, 13 actions have been consolidated in In re SSA Bonds Antitrust Litigation, No. 1:16-cv-03711-ER (SDNY) (“In re SSA“). In this post, we focus on the facts alleged in In re SSA. In an upcoming post we will discuss the ongoing settlements and the motion to dismiss briefing in this consolidated action. At core, the allegations paint a picture of bank market maker collaboration and collusion to the harm of secondary market purchasers and participants.

What are SSAs?

SSA stands for supranational, sub-sovereign, and agency bonds. These bonds make up a niche portion of the international bond market, including bonds issued by those entities and projects straddling the lines between sovereign government issuers, and private credit issuers. The SSA market is highly diverse, but is chiefly made up of bonds issued by entities or institutions that are tasked by governments, or the international community, and international organizations, to further some public policy goal or initiative. This can include anything from infrastructure development, to economic stimulus, to export acceleration, to social security funds. Well known entities that issue SSA Bonds include the supranational organizations such as the World Bank Group and the European Investment Bank, sub-sovereign issuers, such as Canada’s provinces, and Germany’s federal states, and agencies, such as public banks, infrastructure development bodies, and major government owned entities and institutions like Germany’s Kreditanstalt für Wiederaufbau (“KFW”), a government-owned investment bank.

Overview of the Alleged Collusion

At core, Plaintiffs, buy-side funds such as pension and retirement funds, and asset management companies, allege that Defendants, large dealer banks including Bank of America, Barclays, BNP Paribas, and Credit Suisse, among others, being the only major sellers and market makers in the second over the counter (“OTC”) SSA bond market, took advantage of the opaque nature of price quoting for these OTC instruments, to share information and manipulate the bid and ask spreads for the sale of these instruments.

SSA bonds are not quoted on an open, anonymous exchange like the New York Stock Exchange. Instead purchasers are quoted the value of a bond from a dealer bank’s trading desk, primarily over the telephone, or through electronic chat messaging, often with a time gap of several minutes. To the extent electronic trading platforms were used, these used a “request for quote” protocol, that was not generally dissimilar to that of the phone and instant messaging systems. Investor purchasers, at the time of their request for quotes, would reveal their identity, the specific instrument they wished to purchase, the volume they sought to trade, and often even the trade’s direction. Individuals at the bond trading desks of the dealer defendants would then, rather than compete against one another, as Plaintiffs believed they were, instead allegedly share this information amongst one another, using this information against their clients.

In essence, according to the Plaintiffs, this primarily allowed dealers to rig the bond market in two distinct ways. First they served as a single monolithic cartel which set the prices together, rather than competing against one another to provide the best prices to their clients. Second, they used their clients’ trading information to discern their clients’ trading strategies and positions, and based on that information, set terms and prices to take advantage of their clients’ weaknesses, which were sometimes discernable from the information shared amongst the alleged cartel. Plaintiffs are alleged to have taken great efforts to hide their trading strategy and trading information so that dealers could not take advantage of them in this way, and the improper real time sharing of clients’ information entirely undermined that.

Plaintiffs seek damages, restitution, injunctions and declaratory relief under Section 1 of the Sherman Act, 15 U.S.C. § 1.

This post was written by Lee J. Rubin.

We welcome your feedback. If you have questions or comments about this post, please e-mail John M. Lundin, the Manipulation Monitor’s editor, at jlundin@schlamstone.com or Lee J. Rubin at lrubin@schlamstone.com or call John or Lee at (212) 344-5400.

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On June 20, 2018, the New York State Department of Financial Services announced that it has fined Deutsche Bank $205 million for “for violations of New York banking law, including efforts to improperly coordinate trading activity through online chat rooms, improperly sharing confidential customer information, trading aggressively to skew prices, and misleading customers.”

DFS found that:

a number of Deutsche Bank foreign exchange traders participated in multi-party online chat rooms where participants shared confidential information, discussed coordinating trading activity, and attempted to manipulate foreign exchange currency prices or benchmark rates. By engaging in these activities, these traders sought to diminish competition and increase their profits by executing foreign exchange trades at the expense of customers or the wider market.

One improper practice apparently employed by certain Deutsche Bank traders involved accumulating a large trading position and then using the position to make aggressive trades just before and during the fix window, with the intention of moving the ultimate fix price in a desired direction, up or down – known as “jamming the fix.”

This technique involved accumulating a large trading position, and then using the position to make aggressive trades just before and during the fix window, with the intention of moving the ultimate fix price in a desired direction, up or down (known as“jamming the fix”). Certain Deutsche Bank traders boosted the potential impact of this strategy by using multi-bank chats to share sensitive and confidential client information. This allowed them to learn, for example, whether other traders had large positions in the opposite direction, so that they could attempt to coordinate trading strategies and achieve maximum influence on the published fix rate. The DFS investigation found that it appeared to be understood by other Deutsche Bank traders that the New York foreign exchange spot desk welcomed fix business, in part because of profits generated through manipulation. Deutsche Bank foreign exchange staff were also willing to assist customers who also sought to manipulate fix business.

The DFS investigation also discovered that certain Deutsche Bank employees sought to manipulate submission-based benchmarks for certain currency pairs. The benchmarks, supposedly derived from an objective submission process, instead became potentially tainted when traders sought submissions premised on benefitting their own particular trading positions. In addition, on a number of occasions, certain Deutsche Bank traders and salespeople improperly swapped customer identity and order information with competitors at other banks. With information about the prices competitors were quoting, traders could collude to maximize their profits at customers’ expense.

Deutsche Bank sales staff also engaged in other improper conduct designed to benefit the bank by shortchanging customers. One such practice was “deliberate underfills” in which a trader fully fills a market order for a customer but holds back some of the order while monitoring further price movements. If subsequent price movements favor the bank, the salesperson then “splits” the order, such that the bank reports to the customer that the order was only partly filled, and the bank keeps part of the trade for the bank’s own account without the customer’s knowledge or consent. The bank subsequently fills the remaining part of the customer’s order, but potentially at a price less favorable to the customer.

The DFS investigation also found that Deutsche Bank sales staff employed other tactics designed to secretly increase the “markup” charged to customers for trade execution. In a number of instances, Deutsche Bank staff intentionally failed to correct, or even intentionally made, errors or misleading entries in trade execution records so as to keep extra profit for themselves and the bank.

If you have questions or comments about The Manipulation Monitor, please e-mail John M. Lundin, the Manipulation Monitor’s editor, at jlundin@schlamstone.com or call him at (212) 344-5400.

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