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Marek piwowarski kontakt torrent

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Contre toi. A contresens. Defendant, represented by Arthur J. JP Morgan Chase amp Co. Defendant, represented by Paul Christopher Gluckow. Morgan Chase Bank, N. Barclays Bank plc, Defendant, represented by Jeffrey T. Citigroup, Inc. Davis Polk amp Wardwell. Citibank N. JPMorgan Chase amp Co.

Lloyds Banking Group plc. Defendant, represented by Benjamin Andrew Fleming. Defendant, represented by Robert G. Citibank, N. Defendant, represented by Lev Louis Dassin. Cleary Gottlieb, Jonathan Samuel Kolodner. Defendant, represented by Daryl Andrew Libow. Sullivan amp Cromwell LLP. Winslett Studnicky McCormick amp Bomser.

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Citigroup Inc. Defendant, represented by Robert Frank Wise, Jr.. Wilmer, Cutler, Hale amp Dorr, L. Citigroup Financial Products, Inc. Cleary Gottlieb, Andrew Arthur Ruffino. Rowan Gaither, IV. Defendant, represented by Elai E. Morgan Markets Ltd. Defendant, represented by Andrew Arthur Ruffino. Covington amp Burling LLP. Citigroup Global Markets, Inc. Cleary Gottlieb amp Jonathan Samuel Kolodner. Citigroup Funding Inc. Defendant, represented by James Matthew Goodin.

Bear Stearns Capital Markets, Inc. Defendant, represented by Jeffery Li Ding. Citizens Bank, N. Defendant, represented by Alan Schoenfeld. Citi Swapco Inc. Mithoff Law amp Nanci E. Juiz distrital. This opinion addresses five pending requests, all of which must be understood in the context of our prior decisions analyzing the sufficiency of the complaints of six putative class actions and 27 individual actions.

The current motions require us to once again consider pleading standards, personal jurisdiction, and statutes of limitations, subjects that we have already considered in opinions that total over pages. Attempting to piggy-back on these holdings, the OTC plaintiffs now request leave to add fraud and aiding and abetting fraud claims to their second Proposed Third Amended Complaint. That request is denied. To recap the history of the pleadings: the Mayor and City Council of Baltimore filed a complaint on behalf of themselves and other purchasers of LIBOR-based derivatives on August 5, Pre-Trial Order No.

Bank of America Corp. Thereafter, plaintiffs filed a Consolidated Amended Complaint on April 30, On August 23, , LIBOR II granted plaintiffs motion for leave to file a second amended complaint alleging unjust enrichment and breach of contract claims. Not until November of , more than four years after the filing of the initial complaint, more than three years after the filing of the Consolidated Complaint, and after two further amendments, and three rounds of briefing, did the OTC plaintiffs seek leave to add fraud claims.

We acknowledge that Rule 15 a provides that courts should freely give leave to amend when justice so requires, Fed. McGee v. However, after a considerable period of time has passed between the filing of the complaint and the motion to amend, courts have placed the burden upon the movant to show some valid reason for his neglect and delay. Here, plaintiffs have provided no valid reason for their delay in bringing their fraud claims, nor could they: other plaintiffs alleged such claims more than a year before plaintiffs filed their initial proposed Third Amended Complaint, which contained no fraud claims.

See Proposed Third Am. Plaintiffs attempt to justify their delay fails. While plaintiffs argue that the information contained in the documents received from Barclays Bank plc in connection with its settlements now allows them to plead that Barclays learned the submissions of other panel banks before the submissions deadline, plaintiffs not only could have, but they in fact did, plead this information before filing this version of the Proposed Third Amended Complaint.

See id. A similar principle applies here: plaintiffs may not, after seeing other, unrelated plaintiffs successfully plead claims that the OTC plaintiffs declined to allege, amend their complaint in light of this Courts ruling.

The OTC plaintiffs much-belated application to add fraud claims is denied. LEXIS , at See Mem. Plaintiffs correctly point out that this Court has elsewhere held that parties may assert implied covenant claims against non-panel banks when they can allege that the counterparty entity participated somehow in the panel banks illicit manipulation.

Allegations that Credit Suisse entities operated as one bank are insufficient to properly plead that CSI intended to harm TCEH or recklessly disregarded the risk of such harm. Those complaints serve to toll the statute of limitations for parties that purchased LIBOR-based instruments directly from defendants. See Restatement Third of Agency 6. Further, as RBC did not move to dismiss SEIUs claim against it, it may not now seek reconsideration or the correction of any purported errors.

The Lender Plaintiffs request leave to amend their complaint to allege damages on behalf of Berkshire Bank and defendants renew their request to dismiss the claims of DFG. New York law requires that a plaintiff bringing suit for fraud allege out of pocket losses. In the context of bonds or loans, a comparison between the cash flows received and what the plaintiff would have earned if he or she had held another investment is required.

Because Berkshire Bank did not plead information about any specific investment. The Proposed Second Amended Complaint is sufficient to allege damages. Hotaling v. Leach amp Co. The Fed Eurodollar Rate, we have observed before, represents the rate at which banks would pay to borrow from one another and it should track LIBOR closely. Given that Berkshire Bank issued at least one loan during the period of alleged LIBOR suppression, it could have tied the loan to a different floating rate as mortgage lenders.

To cover loans that Berkshire issued before the period of alleged suppression, Berkshire could have easily entered the market and obtained a swap to exchange its floating payments for fixed payments. Proposed Second Am. Class Action Compl. Unlike other investments a plaintiff might hold, where innumerable comparable products might exist, here, where one holds a product tied to LIBOR, the purchase of an easily obtainable swap is plausibly the most appropriate mechanism for shielding oneself from exposure to that rate.

We also granted leave for DFG to amend to set out its portfolio more specifically, id. LEXIS , at 79, as it had not pleaded this information in its complaint. First Am. However, DFGs theory of liability has changed. Now, it alleges that it used LIBOR to determine the initial, fixed interest rate of the loan and therefore received an artificially lowered fixed interest rate, and that when it sold the loans, it received a depressed servicing fee, which is based on the expected future income streams.

Defendants challenge both theories of damages. First, they assert, with respect to the alleged harm from the fixed rate component of the loans, that DFG has not put forth sufficient documentation to show that it in fact incorporated LIBOR into the fixed interest component, nor has it shown that it is within the class of persons that defendants anticipated would use LIBOR. Second, they assert that DFG has submitted insufficient documentation to show that it in fact incorporates a servicing fee into its sale price, that a depressed servicing fee would benefit DFG, and that this theory is merely another version of reliance on the integrity of LIBOR in making pricing decisions, which we have previously rejected.

DFG has properly alleged damages insofar as it states that it incorporated LIBOR into the fixed portion of its interest rates on its loans. DFG has provided the specific formula it used to price the fixed interest rate in its loans, and while the Court cannot understand why DFG has not provided further documentary support for this formula, we trust that DFGs counsel has complied with the requirements of Rule While undoubtedly LIBOR is intended primarily to be used as a component of a floating interest rate, we think it is plausible that defendants expected mortgage lenders to use LIBOR as an input in determining the initial, fixed interest rate.

This holding does not, as defendants argue, hold them liable to anyone who allegedly lost money as a result of using LIBOR in their private pricing calculations and valuations. Rather, it finds that reliance may be expected where its use is integrally connected to the central use of LIBOR for a party already expected to rely on that rate. DFGs other damages theory, however, is untenable. As defendants correctly point out, DFGs servicing fees theory is essentially a variation on the fraud on the market theory.

Significantly, DFG does not argue otherwise. Finally, defendants argue that because none of the loans that DFG presented to the Court fall within the class definition, DFG is not a member of its own class and its claims should therefore be dismissed. DFG asserts claims on behalf of all lending institutions headquartered in the United States.

Given that Directors Financial Group v. In response, all defendants x other than Barclays Bank plc x stated that, absent further direction from the Court, they would respond after we decided the then-pending motions to dismiss for lack of personal jurisdiction. Defendants have since opposed the Exchange-Based Plaintiffs request on personal jurisdiction, statute of limitations, and futility grounds.

We adhere to those principles. The Exchange-Based Plaintiffs urge us to alter our conclusions. None of plaintiffs reasons is persuasive. First, plaintiffs argue that the Fourteenth Amendments personal jurisdiction analysis simply does not apply to federal claims, and they therefore need not show that defendants are either at home in or have minimum contacts with the United States.

However, because the language of the Fifth Amendments due process clause is identical to that of the Fourteenth Amendments due process clause, the same general principles guide the jurisdictional analysis. Second, plaintiffs argue that the Second Circuit does not require a defendants forum-related contacts to be the but for cause of a plaintiffs injury. We decline to alter our conclusion that but for causation remains an essential element of the jurisdictional inquiry.

Third, plaintiffs assert that defendants connections with New York are the but for cause of plaintiffs injury. According to plaintiffs, defendants domestic lending activities led to the financial crisis, which in turn led to defendants allegedly suppressed LIBOR submissions.

However, this argument stretches the concept of but for causation well beyond the breaking point, and in any event, plaintiffs do not link the lending activities of any bank to the subprime mortgage crisis, much less any subsequently depressed LIBOR submissions. Fourth, plaintiffs assert that defendants x or their affiliates x status as Large Traders of Eurodollar futures andor options both indicates that they intended to manipulate that market, therefore purposefully directing allegedly wrongful activity to the United States, and also provides an example of defendants contacts with the United States.

However, we have already rejected the argument that a large position itself is sufficient to support a pleading of scienter that would support specific personal jurisdiction. LEXIS , at 97 conscious misbehavior or recklessness does not rise to the level of purposeful direction. Further, while these large positions may bolster a defendants contacts sufficiently to permit a plaintiff to support a prima facie case of personal jurisdiction based on but for x rather than proximate x causation, such a showing is still required.

As we have found, plaintiffs have not sufficiently connected defendants positions with the proper causal showing. In that case, Judge Schofield held that plaintiffs had adequately made out a prima facie case of personal jurisdiction over certain defendants where plaintiffs alleged defendants conspiratorial and wrongful acts largely took place in the United States and that defendants possessed extensive foreign exchange FX operations in the United States, id.

LEXIS , at , because taken as a whole, plaintiffs complaint plausibly alleges suit-related conduct that either took place in the United States, or had effects expressly aimed inside the country due to defendants substantial FX business here.

This holding has no application to the instant case. In re Foreign Ex. Benchmark Rates Antitrust Litig. Therefore, substantial FX business, including billions of dollars of FX transactions, in the United States provides a basis to find that defendants engaged in suit-related conduct here, because defendants accomplished their purported scheme by entering into FX transactions.

Here, by contrast, defendants need not engage in any market transactions at all, much less in Eurodollar futures contracts, to affect the LIBOR fix, and we have already held that plaintiffs have failed to show that defendants engaged in their purported suppression of LIBOR in order to benefit their Eurodollar trading position. This argument flies in the face of the plain language of the statute. By its terms, New York Banking Law 3 provides that registration describes a consent to specific jurisdiction: a foreign banking corporation must appoint the superintendent and his or her successors its true and lawful attorney, upon whom all process in any action or proceeding against it on a cause of action arising out of a transaction with its New York agency or agencies or branch or branches.

Banking Law 3 see also 7 W. Realty Co. Banking Law 3 does not provide a court with general jurisdiction over a foreign bank. In response, plaintiffs point to two cases in which courts have exercised personal jurisdiction over non-party banks to enforce post-judgment information subpoenas, Vera v. Republic of Cuba. Mega Intl Commercial Bank Co. However, these cases held that foreign banks operating local branches in New York. To the extent that these opinions do so hold, we respectfully disagree.

Interpreting this statute as one that provides general jurisdiction in the absence of express consent x where the most natural reading of the provision does not provide general jurisdiction x would risk unravelling the jurisdictional structure envisioned by the Supreme Court based only on a slender inference of consent pulled from routine bureaucratic measures that were largely designed for another purpose entirely.

Brown v. Lockheed Martin Corp. This we decline to do. Trader-Based Claims Plaintiffs further seek to add numerous trader-based claims to the PTAC, which defendants challenge on the grounds of failure to state a claim, in addition to the personal jurisdiction objections noted supra. With respect to the first argument, while we do not understand why plaintiffs refuse to identify whether a named plaintiff was a net buyer or seller, given the extensive argument on this issue, we will assume that plaintiffs and their counsel are proceeding in good faith and that named plaintiffs held a net position consistent with injury.

With respect to defendants second argument, plaintiffs have failed to show that claims for which no named plaintiff suffered an injury can survive. In support of their position, plaintiffs argue that because a named plaintiff has stated a claim against each defendant, plaintiffs have class standing to assert other trader-based claims against defendants. Goldman Sachs amp Co. In NECA. Because the various offering documents included nearly identical misrepresentations, id.

Plaintiffs had class standing to bring claims related to certificates backed by loans issued by originators of the loans the named plaintiffs purchased. Bank of New York Mellon. Unlike the violations alleged in NECA. Trader-based claims are day-to-day and episodic, and plaintiffs must prove the substantive elements of each claim. Proof that a bank caused an artificial price one day will not determine whether it did so on another day.

Therefore, claims on behalf of absent class members for trader-based CEA violations do not involve the same set of concerns as the claims brought on behalf of named plaintiffs, and the named plaintiffs do not have class standing to bring claims on days on which they did not hold a relevant net position. Defendants further identify several dates on which the allegedly false LIBOR submission could not have affected the ultimate fix.

For example, this Court has already rejected claims based on an allegedly upwardly manipulated submission where that submission is in the bottom quartile for that day or claims based on an allegedly downwardly manipulated submission where that submission is in the top quartile for that day.

Further, when at least eight panel banks not alleged to have engaged in manipulation on a particular day submit the same LIBOR quote in the interquartile position, then the allegedly false submission of the relevant defendant or defendants would be excluded from the fix calculation regardless of any alleged manipulation.

Next, defendants argue that trader-based allegations relating to tenors of LIBOR other than the three-month rate cannot affect the price of Eurodollar futures contracts, whose price depends on the three-month rate only. Plea Agreement, United States of America v. Given this admission, the Exchange-Based plaintiffs may rely, at least at this stage, on requests for manipulation in other tenors when otherwise properly pleading claims against Deutsche Bank.

We agree with MLI that the statute of limitations has run on these claims. Plaintiffs argue that without the Barclays Cooperation materials, they could not have identified Contogoulas as Trader-1, because that agreement did not provide sufficient information regarding MLI or Contogoulas to trigger inquiry notice.

However, Barclays settlement agreement put plaintiffs on inquiry notice that trader-based conduct had harmed them, and a reasonable search thereafter would have uncovered a January 25, Financial Times article that identified the anonymous individuals in Barclays settlement agreement. Times, Jan.

By simply comparing Barclays settlement agreement to the Financial Times article, plaintiffs could have identified Contogoulas as Trader Therefore, the statute of limitations began to run, at the latest, on January 25, , and claims against MLI are time-barred. Plaintiffs argue that MLI should have been on notice that plaintiffs intended to include it in earlier complaints, and only failed to do so because it did not know the employer of Trader In support of this argument, plaintiffs note that they specifically alleged that affiliates of panel banks engaged in a conspiracy with the panel banks to manipulate LIBOR.

Accurate, but irrelevant: plaintiffs identified a list of affiliates that they chose not to name as defendants. Second Am. Such a list cannot place MLI on notice that it would have been named as a defendant if plaintiffs knew of its identity rather, it does just the opposite. Nor does the fact that the Second Amended Complaint described some of Contogoulas conduct, without knowing his identity, suggest that plaintiffs would have named MLI as a defendant, but for a mistake regarding its identity: as the list of affiliates shows, plaintiffs referred to the allegedly wrongful conduct of several entities they did not intend to sue and had not sued.

In addition, plaintiffs did name several John Doe defendants, but the employer of Trader-1 was not among them. For this reason, claims against Deutsche Bank Securities Inc. Indeed, this reasoning applies with even greater force, as plaintiffs themselves identified both entities by name in the Second Amended Complaint without naming them as defendants. Thus, there can be no doubt that the decision not to name these affiliates does not represent a mistake about their identities.

Citibank and Citigroup Global Markets, Inc. On that date, a Barclays trader requested a high submission, and in response, a Citibank trader said ask ur guy who submits LIBOR for us and I can call him. I have no clue who does it for us. Given these layers of assumptions, we do not think that plaintiffs have alleged enough facts to raise a reasonable expectation that discovery will reveal evidence of a false submission. Bell Atl. Class Period In the PTAC, plaintiffs seek to extend the Class Period backwards and forwards: persistent suppression and trader-based claims would now extend until May 31, , while trader-based claims would begin in January 1, However, plaintiffs provide no basis for extending the class period with respect to trader-based claims: they have not properly pleaded any trader-based claims pre-dating January 1, or post-dating August , and therefore such extensions of the class period are futile.

Further, claims related to persistent suppression after May are time-barred pursuant to the CEAs two-year statute of limitations. While plaintiffs argue that American Pipe tolling saves their claims, this tolling rule does not apply to named plaintiffs. Vincent v. Money Store. Because this MDL involves only U.

Dismissed Claims Plaintiffs have continued to assert claims that have previously been dismissed in order to preserve them for appeal, because, they argue, the law in this circuit appears to be unsettled on whether plaintiffs need to re-plead dismissed claims to preserve them for appeal when granted leave to amend. While the Second Circuit has not definitively ruled on the appropriate standard for cases where the district court has granted leave to amend a dismissed claim , P.

Stolz Family Partnership L. To be perfectly clear, plaintiffs should not replead definitively dismissed claims where they have not received this Courts leave to amend those claims. The Lender Plaintiffs are granted leave to amend their complaint to include the claims of Berkshire Bank.

The Exchange-Based Plaintiffs may amend their complaint consistent with the rulings herein. ECF NO. Credit Suisse cv Group AG et al. The Berkshire Bank et al. Bank of cv America Corp. This unopposed request is granted. Defendants letters totaled 85 pages and resulted in 77 pages in response from the Exchange-Based Plaintiffs.

To the extent that plaintiffs request that we not distinguish our personal jurisdiction analysis between persistent suppression and trader-based claims because some defendants allegedly engaged in both, we decline to alter our holdings. A plaintiff asserting specific personal jurisdiction must establish the courts jurisdiction with respect to each claim asserted.

While plaintiffs make glancing references in their letters to a conspiracy between all panel banks sufficient to assert jurisdiction over each one, connection to banks subject to general jurisdiction in the United State is wholly insufficient when the wrongdoing takes place in London and in the absence of conduct directed at the United States.

See In re Terrorist Attacks on Sept. For similar reasons, plaintiffs arguments regarding jurisdiction pursuant to vicarious liability and aiding and abetting claims are misplaced. Banking Law 3. Plaintiffs further request for jurisdictional discovery will be addressed in a forthcoming Memorandum and Order. MLI also argues that this Court cannot exercise personal jurisdiction over it, because Stylianos Contogoulas did not purposefully avail himself of the privilege of doing business in the United States, nor did he expressly aim his conduct to the United States, and, further, because of the deficiencies in plaintiffs conspiracy theory of jurisdiction, a theory we declined to reach in LIBOR IV.

LEXIS , at n. Because the viability of the conspiracy theory of personal jurisdiction is unsettled in this Circuit, compare Allstate Life Ins. Linter Grp. See ONY, Inc. Cornerstone Therapeutics, Inc. Wright amp A. Miller, Fed. When the jurisdictional question is complex or difficult, a court simply may avoid the issue by resolving the suit on the merits when they clearly must be decided in favor of the party challenging jurisdiction.

If this is correct, plaintiffs have stated a claim against DBGS for trader-based manipulation. C, Roger W. Barrette, Johnsn amp Parsley, Roger W. Grant amp Eisenhofer P. Radice Law Firm, P. Hanzman and Criden, Michael E. Roger W. Richard Hershey, Plaintiff, represented by Christopher Lovell. Coleman Law Firm, pro hac vice, Roger W.

Jeffrey Laydon, Plaintiff, represented by Christopher Lovell. Schwab U. Plaintiff, represented by Andrew Scirica Kingsdale. Cohen Milstein Sellers amp Toll P. Samuel Howard Rudman. Calle Gracey, Plaintiff, represented by Christopher Lovell. Van Tine. Ellen Gelboim, Plaintiff, represented by Daniel Hume. Goldstein amp Russell, P. Jeremy S. Goldstein amp Russell P.

Elizabeth Lieberman, Plaintiff, Pro Se. Gardner, Plaintiff, represented by Jason Allen Zweig. Fobes, Plaintiff, represented by John Walter Sharbrough. Gunter, Plaintiff, represented by John Walter Sharbrough. Payne, Plaintiff, represented by Daniel Alberstone. Baron and Budd, P. Coker, Plaintiff, represented by Daniel Alberstone. City of Riverside, Plaintiff, represented by Kevin P. Riverside City Attorney, pro hac vice. City of Richmond amp Nanci E. Eng amp Nishimura, Eugene Whitlock. San Mateo County Counsel.

City of Richmond, Plaintiff, represented by Kevin P. City Attorneys Office, Everett Jenkins. C, pro hac vice, Joseph Solomon Hall. Earle, Plaintiff, represented by Elana Katcher. Block amp Leviton LLP. Henryk Malinowski, Plaintiff, represented by Elana Katcher. Linda Carr, Plaintiff, represented by Elana Katcher. Eric Friedman, Plaintiff, represented by Elana Katcher.

County of Riverside, Plaintiff, represented by Benjamin Galdston. Jerry Weglarz, Plaintiff, represented by Cathleen M. Nathan Weglarz, Plaintiff, represented by Cathleen M. Buckley, Plaintiff, represented by Evans J. County of Sonoma, Plaintiff, represented by Kevin P. Quinn Emanuel, Jacob J. Sperling amp Slater, Eugene J. Plaintiff, represented by Bruce S.

Gildor, Plaintiff, represented by Brendan Patrick Glaskin. Plaintiff, represented by Brendan Patrick Glaskin. Defendant, represented by Amos Emory Friedland. Paul Christopher Gluckow. Defendant, represented by Edwin R. Adam Gabor Mehes. Wilmerhale, David S. Taft Stettinius amp Hollister - Cleveland. Defendant, represented by Adam Shawn Mintz. Merrill Lynch Capital Services, Inc.

Defendant, represented by Adam Gabor Mehes. Merrill Lynch amp Co. Merrill Lynch International Bank, Ltd. Defendant, represented by Abram Jeremy Ellis. Introduction Following an unusual, if not unique, appellate journey, we once again address the antitrust claims in this multi-district litigation MDL arising from the alleged manipulation of the London Interbank Offer Rate LIBOR , which we initially dismissed for lack of antitrust standing in March Instruments Antitrust Litig.

On this motion, defendants present two bases for dismissal of the antitrust claims: first, that this Court lacks personal jurisdiction over some defendants and second, that plaintiffs lack antitrust standing because they are not efficient enforcers of the antitrust laws. Defendants have properly preserved their request to move for dismissal on other bases after the resolution of this motion. For the reasons stated below, defendants motion to dismiss is granted in part and denied in part.

We grant the moving defendants motion to dismiss for lack of personal jurisdiction, although such a result means we retain personal jurisdiction over the non-moving defendants. While we deny the defendants motion to dismiss on efficient enforcer grounds as to all other antitrust claims, those claims are circumscribed as set forth in this opinion.

Background The nature of LIBOR, its alleged manipulation, and the parties in this case have been explored in our prior opinions. For a plaintiff to have antitrust standing, it must allege that it 1 has experienced antitrust injury and 2 is an efficient enforcer of the antitrust laws we concluded that the plaintiffs lacked standing because they failed to allege an antitrust injury.

As the Bondholders had only brought antitrust claims, their dismissal effectively dismissed the Bondholders case. The Bondholders sought and were granted certiorari. The Supreme Court unanimously reversed, holding that the Bondholders right to appeal ripened when we dismissed their case, and not at the eventual completion of the MDL proceedings. Gelboim v. Bank of Am. The Supreme Court remanded to the Second Circuit for consideration of the merits. The Second Circuit issued its merits decision in May The Circuit reversed LIBOR I, holding that plaintiffs sufficiently pled an antitrust conspiracy 3 and the first prong of antitrust standing, that is, the existence of antitrust injury.

The defendants motion followed on a schedule set by the Court in a letter order dated June 7, Personal Jurisdiction The Second Circuits holding that the plaintiffs adequately pled a conspiracy requires an analysis of that conspiracy and the consequent impact, if any, on whether this Court has personal jurisdiction over the moving defendants.

This Court observes the teaching of Gelboim and proceeds on the premise that the conspiracy had an impact on price. Plaintiffs make much of the Second Circuits statement that their allegations evince a common motive to conspire x increased profits and the projection of financial soundness, Gelboim, F. Plaintiffs focus on increased profits as the object of the conspiracy and thus argue that personal jurisdiction may be obtained over all panel banks because of the banks economic activity in the United States.

Plaintiffs misread and overread Gelboim. It is far from clear that Gelboim should be read to mean that plaintiffs have sufficiently alleged increased profits as a goal independent of a conspiracy to project. Regardless, the premise that the primary goal of the conspiracy was to increase profits by lowering the interest rate the banks had to pay when they were in the role of borrower is not plausible, as Gelboim itself noted: Common sense dictates that the Banks operated not just as borrowers but also as lenders in transactions that referenced LIBOR.

It seems strange that this or that bank or any bank would conspire to gain, as a borrower, profits that would be offset by a parity of losses it would suffer as a lender. However, the record is developed. These complaints were dismissed precisely because under such an arrangement the loanholders benefited and the defendant banks lost income. Contrary to Shakespeares advice, Neither a borrower nor a lender be, the defendant banks are both. If, as plaintiffs suggest, the conspiracy were profit-motivated, it would have required all of the sixteen panel banks to have made a parallel decision to be net borrowers of money over the suppression period in the LIBOR-based lending market.

After five years of voluminous discovery in both civil litigation and government investigations, plaintiffs have not offered evidence that the panel banks made such a decision or were in fact net borrowers. Rather, the object of the conspiracy that the Circuit recognized and which meets the plausibility test is the projection of financial soundness.

Without question, if implemented, a conspiracy with such an object would, under Gelboim s analysis of antitrust injury, have an impact on price. However, as we have previously held, such an object is not sufficiently directed to the United States such as would support the exercise of personal jurisdiction over all panel banks.

Plaintiffs argue in the alternative that if this Court has specific personal jurisdiction over at least one panel bank, it follows that this Court has personal jurisdiction over all panel banks under the theory of conspiracy jurisdiction. Because plaintiffs have failed to establish that any defendant committed an act in furtherance of the conspiracy in or directed at the United States, this Court has only general personal jurisdiction over certain panel banks as to the antitrust claims, and therefore the conspiracy jurisdiction argument has no purchase.

Finally, defendants have not forfeited their personal jurisdiction defense. Bauman, S. Weixing Li, F. Scope of the Conspiracy The first step in evaluating personal jurisdiction in a conspiracy case is to define the scope of the conspiracy, because only acts taken pursuant to that conspiracy are jurisdictionally relevant: For overt acts. If that agreement did not, expressly or impliedly, contemplate that the conspiracy would continue in its efforts to achieve a particular goal, then the scope of the agreement cannot be broadened retroactively by the fact that the conspirators took steps after the conspiracy which incidentally had that effect.

Grunewald v. United States, U. The consequence is that when questions arise concerning matters such as venue or the statute of limitations, which depend on the formation of the agreement or the occurrence of overt acts, it becomes crucial to determine the scope of the conspiratorial agreement.

United States v. Rosenblatt, F. This approach applies equally to civil cases and to questions concerning personal jurisdiction. See, e. In re Sumitomo Copper Litig. As an example of the necessary analysis, in the price-fixing case United States v. Socony-Vacuum Oil Co. The Court then inquired into the chief end and objective of the price-fixing conspiracy, finding it to be the raising and maintenance of Mid-Western prices at higher levels.

Sales of price-fixed products were therefore jurisdictionally relevant to the conspiracy: The objectives of the conspiracy would fail if respondents did not by some formula or method relate their sales in the Mid-Western area to the spot market prices.

In sum, the conspiracy contemplated and embraced, at least by clear implication, sales to jobbers and consumers in the Mid-Western area at the enhanced prices. The making of those sales supplied part of the continuous cooperation necessary to keep the conspiracy alive. With these facts, the Court found that personal jurisdiction in the Western District of Wisconsin attached. In fact, plaintiffs themselves implicitly recognize this principle, which is why they exert such effort to define the conspiracy as one with a profit motive.

Joint Mem. We reject plaintiffs attempt to read the Second Circuits opinion so broadly, and we find that plaintiffs have only sufficiently alleged that the goal of the antitrust conspiracy was the projection of financial soundness. The Circuits examples of the allegations that evince a common motive to conspire pertained only to the banks reputational concerns, not an independent motive to reap profits on persistently suppressed LIBOR by maintaining one bank-wide position throughout the class period.

More importantly, the Circuit went on to observe that a profit motive in the persistent suppression conspiracy is logically unsound: Common sense dictates that the Banks operated not just as borrowers but also as lenders in transactions that referenced LIBOR. Banks do not stockpile money, any more than bakers stockpile yeast. The only conclusion to be drawn is that the Circuit meant increased profits and the projection of financial soundness to describe collectively a single, reputation-based motive to conspire, where increased profits followed from a positive reputation.

The corollary is that for a transaction-based profit motive to exist, the panel banks would have had to fix LIBOR with the parallel intent to be a net borrower across the suppression period. Both propositions are implausible. In re Commodity Exchange, Inc. Like in this case, the plaintiffs in Gold asserting antitrust claims alleged both persistent suppression and trader-based manipulation of gold prices although these theories are not so labeled in that case.

Like in this case, the Gold court found a profit motive in the trader-based conspiracy to be plausible, because banks could predictably cause gold prices to rise or fall at the Gold Fixing and therefore strategically buy low and sell high in ways that other non-Fixing market participants could not. In contrast, the Gold court found implausible a profit motive in the persistent suppression of gold prices, which would have required plaintiffs to show that defendants held net short gold futures positions on COMEX, which allowed them to profit when the price of gold fell.

Even after evaluating plaintiffs data showing that large bullion banks were as a whole net short on gold futures and options throughout the class period, the court concluded that the data does not plausibly support an allegation that any particular bank was net short at any particular time let alone that all of the Defendants were net short throughout the alleged conspiratorial period and that the data fatally excluded defendants positions in other relevant markets.

Allegations that defendants were net borrowers in the LIBOR persistent suppression conspiracy are even less availing. Unlike in Gold, where the plaintiffs at least presented data showing an aggregate net short position, the plaintiffs here are empty-handed. To the extent the complaints say anything about net borrowing at all, 9 they rely on information regarding interest rates generally, not USD LIBOR specifically 10 draw conclusions based on information that has nothing to do with LIBOR suppression 11 and advance unsupported assertions.

Twombly, U. Deposit Ins. Taken in context, however, this statement is not sufficient. This paragraph offers no assistance to plaintiffs: as in Gold, it does not plausibly support an allegation that Bank of America was a net borrower on LIBOR-based products at a particular time, much less that Bank of America was a net borrower throughout the class period, and even less that all defendants were net borrowers throughout the class period.

Gold, WL , at When pressed at oral argument for evidence that the banks were in fact net borrowers, plaintiffs had none. What is logical x and what is supported by specific allegations and evidence x is a conspiracy aimed at the projection of financial soundness. In so acting, UBS sought to avoid negative media attention and, relatedly, sought to avoid creating an impression that it was having difficulty obtaining funds. OTC Compl. In other words, the DOJ explained x borrowing from Barclays employees comments in internal communications x the purpose of the strategy of under-reporting Dollar LIBORs was to keep Barclayss head below the parapet so that it did not get shot off.

Because the projection of financial soundness is the only sufficiently pled goal of the persistent suppression conspiracy, we adhere to our earlier ruling that the contacts relevant to specific jurisdiction are only those in the forum containing the office from which a defendant determined, or transmitted, a false LIBOR submission. In this context, plaintiffs entreat us to rely on the sales of LIBOR-based financial products in the United States regardless of the motive of the defendants.

Such reliance would be misplaced since defendants need not engage in any market transactions at all. This case is different from Socony-Vacuum Oil, in which the Supreme Court reasoned that goal of the conspiracy x the raising and maintenance of high prices x would have been vitiated had the defendants engaged in price cutting and price wars the result was that the conspiracy necessarily involved selling price-manipulated products into the jurisdiction.

Here, the goal of the conspiracy would have succeeded regardless of whether any defendants based their products on LIBOR and regardless of whether any defendant bank increased or decreased the margin on their LIBOR-based products. The sales of LIBOR-based products are not meaningful in a jurisdictional analysis because they were not within the scope of the conspiratorial agreement and the scope of the agreement cannot be broadened retroactively by the fact that the conspirators took steps after the conspiracy which incidentally had a particular effect.

Grunewald, U. Due Process Analysis On a Rule 12 b 2 motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of showing that the court has jurisdiction over each defendant. Life Ins. Robertson-Ceco Corp. Whether the court has jurisdiction over a defendant is governed by a combination of state law, federal statute, and principles of due process, but the due process analysis must be undertaken in every case.

In re Aluminum Warehouse Antitrust Litig. Plaintiffs prima facie showing of jurisdiction must include an averment of facts that, if credited by the ultimate trier of fact, would suffice to establish jurisdiction over the defendant. In re Terrorist Attacks on Sept.

The court has considerable procedural leeway. It may determine the motion on the basis of affidavits alone or it may permit discovery in aid of the motion or it may conduct an evidentiary hearing on the merits of the motion. Dorchester Fin. Banco BRJ, S. In the absence of an evidentiary hearing, the court must construe the pleadings and affidavits in the light most favorable to plaintiffs, resolving all doubts in their favor, Porina v.

Marward Shipping Co. Overseas Military Sales Corp. The due process analysis of specific personal jurisdiction requires the court to evaluate first, whether the defendant has purposefully established minimum contacts within the forum, and second, whether the exercise of jurisdiction would be so unreasonable as to offend traditional notions of fair play and substantial justice.

Walden v. Due process limits on a courts adjudicative authority principally protect the liberty of the nonresident defendant x not the convenience of plaintiffs or third parties. Additionally, specific jurisdiction depends on an affiliation between the forum and the underlying controversy, and therefore the defendants suit-related conduct must have created a substantial connection with the forum. The relevant forum for the assessment of minimum contacts is the United States as a whole.

We reject any suggestion that Bank Brussels Lambert v. Fiddler Gonzalez amp Rodriguez. Bank Brussels itself explained that, in that case, the jurisdictionally relevant activities proximately caused the engagement of the law firm at issue. We repeat our prior holding that specific jurisdiction requires no less than a but for connection between the defendants forum-directed activities and the claim.

Therefore, any allegations of forum-related contacts that relate to the antitrust conspiracy but that are not causally connected to actual LIBOR submissions are jurisdictionally insufficient. Plaintiffs have failed to show that overt acts in furtherance of the reputation-driven antitrust conspiracy occurred in or were aimed at the United States. Plaintiffs have inundated this Court with vacuous submissions derived from millions of pages of discovery, including some made at the eleventh hour immediately prior to oral argument and even some made after oral argument.

While the volume makes it impossible to address every individual allegation, generally speaking the submissions pertain to trader-based allegations, manipulation of LIBOR pegged to other currencies, color about the state of USD LIBOR, marketing activities x everything but what the plaintiffs are actually required to plead.

While for present purposes we accept plaintiffs many jurisdictional allegations as true, we find them ultimately insufficient. Most of the allegations fail to address whether defendants determined, or transmitted, a false LIBOR submission from the United States the few allegations that attempt to do so are unavailing. First, defendants sales and trades of LIBOR-based products to plaintiffs in the United States are not within the scope of the reputation-motivated antitrust conspiracy. Likewise, trader-based allegations have no relevance here.

It bears repeating that defendants sales of LIBOR-based products to plaintiffs in a forum are sufficient to grant personal jurisdiction under certain contract claims, unjust enrichment claims, and fraud claims, and plaintiffs may seek recovery for damages under those theories. Sunward Elecs. Second, plaintiffs allege that defendants aimed their conduct at the United States under the Calder effects test. The Calder effects test requires plaintiffs to show purposeful direction, where the defendant took intentional, and allegedly tortious, actions expressly aimed at the forum.

As plaintiffs acknowledge, it would be necessary to disturb that holding only if plaintiffs sufficiently pled a profit-motivated conspiracy, Pls. Indeed, the present case is to be contrasted with the antitrust cases on which plaintiffs rely and in which courts have sustained personal jurisdiction in the United States under the effects test.

In those cases, the court expressly or impliedly found that the conspiracys goal was to inflict supracompetitive prices on foreign countries such as the United States, In re Vitamin C Antitrust Litig. See also In re Fasteners Antitrust Litig. And contrary to plaintiffs argument that suffering the brunt of the harm in the United States alone is sufficient for jurisdiction, Pls. LLC v. Anesthesia Assocs. Third, as we have already held, marketing activities are jurisdictionally irrelevant in the persistent suppression conspiracy.

That a panel bank defendant engaged in LIBOR marketing activities which reached a given forum state does not mean that the same defendant is subject to personal jurisdiction in that state on the basis of the defendants manipulation of LIBOR. It is incontrovertible that the importance of LIBOR was its universal significance, not its projection into any particular state, and plaintiffs do not plead otherwise.

Fourth, plaintiffs rely on allegations regarding panel banks subsidiaries and affiliates in the United States, but have not pleaded facts or submitted supporting material that suggests that any panel banks United States-based affiliate played a role in that banks alleged suppression of LIBOR. For plaintiffs to establish personal jurisdiction through the activity of banks subsidiaries and affiliates, plaintiffs must first show a merging of parent and subsidiary for jurisdictional purposes, which requires an inquiry comparable to the corporate law question of piercing the corporate veil.

Goodyear Dunlop Tires Operations, S. Plaintiffs must then show that the defendants affiliates or subsidiaries took jurisdictionally relevant acts consistent with the principles we have set out for the panel bank defendants. April 29 Order, WL , at 3. Case No. London time or a. New York time. In any event, an allegation that the submissions were sent to New York, without additional allegations that any person or entity did anything further with the submissions in the United States, is insufficient to support personal jurisdiction.

Laydon v. Mizuho Bank, Ltd. The few allegations that do address the forum in which a defendant determined or transmitted a false LIBOR submission are easily discounted, especially in light of the moving defendants declarations stating that they did not determine or transmit their LIBOR submissions from the United States. Kurtzberg Decl. ECF No. Plaintiffs cite UBSs settlement papers with the U. Department of Justice to argue that UBS has admitted that an executive in Connecticut directed that submissions for all currencies stay low and instituted a policy that submissions for all currencies stay within the pack.

UBSs actual admission reads: The manager of the Yen trading desk understood that this direction to submit low LIBOR contributions was issued by the senior manager of Group Treasury based in Stamford in order to make the bank appear more creditworthy, and that it applied to all currencies.

Plaintiffs stretch the admission to the breaking point. Connors Decl. OTC Pls. The document on which plaintiffs rely is nothing more than a high-level market commentary e-mail from the Royal Bank of Scotland, sent to a host of third parties, that makes a stray reference to Credit Suisse First Boston.

Joint Decl. This document does not credibly support the allegation. When the allegations are evaluated soberly, plaintiffs fail to carry their burden of making a prima facie showing of minimum contacts. Plaintiffs protest that at its core, Defendants Motion rests on the absurd premise that domestic victims of a price-fixing cartel should be precluded from bringing suit in the U.

Plaintiffs rhetoric is unconvincing. Of course, defendants that are domiciled in the relevant forum are subject to general personal jurisdiction, and neither the Court nor the non-moving defendants 20 contest that principle it is black-letter law that harm experienced in a forum is not sufficient to establish specific personal jurisdiction and the plaintiffs have not shown that the persistent suppression conspiracy, as distinguished from the trader-based conspiracy, is aimed at the United States.

We hold that plaintiffs have failed to carry their burden under the first prong, purposeful availment, of the due process analysis as to all moving defendants. Therefore, we need not reach the second prong, whether the exercise of personal jurisdiction would comport with traditional notions of fair play and substantial justice.

We also need not reach defendants arguments regarding lack of venue. Pendent Jurisdiction The non-moving defendants concede that we have general personal jurisdiction over them as to the relevant federal and state antitrust claims, so we need not address pendent jurisdiction as to the state antitrust claims.

In contrast, we decline to exercise pendent jurisdiction over antitrust claims, whether they be federal or state, based on forum selection clauses in particular contracts or based on the location from which a bond was issued. We repeat that not all claims against a counterparty may be brought in a contractually selected forum. The claim must relate to the particular contractual relationship. Thus, for example, we will not uphold jurisdiction over a counterparty for all fraud claims that a plaintiff might bring against that counterparty on the basis of the forum selection clause.

Likewise, we will not uphold jurisdiction over a counterparty for antitrust claims simply on the basis of a forum selection clause or the location from which a bond was issued. Conspiracy Jurisdiction Plaintiffs assert that, under the theory of conspiracy personal jurisdiction, we have personal jurisdiction over all of the defendants.

Courts that have recognized personal jurisdiction on the basis of conspiracy have required plaintiffs to 1 make a prima facie factual showing of a conspiracy 2 allege specific facts warranting the inference that the defendant was a member of the conspiracy and 3 show that the defendants co-conspirator committed a tortious act pursuant to the conspiracy in the forum. Given that plaintiffs have not plausibly alleged that any defendant committed an act pursuant to the pled conspiracy in the United States, conspiracy jurisdiction does not apply here.

In making this ruling, we do not express an opinion as to whether conspiracy jurisdiction survives as a doctrine after the Supreme Courts ruling in Walden v. Forfeiture Plaintiffs argue that defendants have forfeited their personal jurisdiction arguments on the antitrust claims through defendants availment of the United States courts.

This argument is meritless. Although there is a dearth of caselaw. Gerber v. The touchstone is that to forfeit a personal jurisdiction defense, a defendant must give a plaintiff a reasonable expectation that it will defend the suit on the merits or must cause the court to go to some effort that would be wasted if personal jurisdiction is later found lacking. Corporacion Mexicana De Mantenimiento Integral v.

The rationale is that defendants should raise such preliminary matters before the courts and parties time is consumed in struggle over the substance of the suit. FG Hemisphere Assocs. But a party cannot be deemed to have waived objections or defenses which were not known to be available at the time they could first have been made, especially when it does raise the objections as soon as their cognizability is made apparent.

Holzsager v. Valley Hosp. We initially dismissed plaintiffs antitrust claims in March Certain plaintiffs appealed the dismissal in October , the Second Circuit sua sponte dismissed the appeal for lack of appellate jurisdiction. In March , the Bondholder plaintiffs appealed that decision to the Supreme Court, presenting the question, Is the right to appeal secured by 28 U. That question was fully briefed by November Between the time the Second Circuit dismissed the appeal and the completion of briefing in the Supreme Court, jurisdictional defenses became available to the defendants: the Supreme Court decided Daimler, S.

Defendants raised Daimler - based jurisdictional defenses in the cases still pending before this Court. Kurtzberg Letter, Aug. In January , the Supreme Court reversed the Second Circuit and remanded for a decision on the merits. In April before merits briefing began in May , defendants noted to the Second Circuit that they expressly preserve all defenses regarding personal jurisdiction as to all matters on appeal.

Additionally, in the merits briefing in May , defendants noted that twenty of the twenty-five actions on appeal are subject to motions to dismiss for lack of personal jurisdiction pending in the district court. Joint Br. These statements were sufficient to put the plaintiffs on notice that, if the antitrust claims were to be reinstated, defendants would move for dismissal on this basis.

There is no reason to think that the Supreme Courts decision on the writ of certiorari would have been affected by an inchoate personal jurisdiction defense that had not been raised in or evaluated by a lower court. Furthermore, the Supreme Court granted certiorari limited to the scope of the Second Circuits power to take an appeal in a multidistrict litigation, and the Court does not countenance briefing on questions on which it has not granted certiorari.

See Supreme Court Rule Plaintiffs somewhat bizarrely suggest that defendants should have 1 asked the Supreme Court to remand so that the defendants could move the district court to consider a personal jurisdiction defense on claims that the district court had already dismissed or 2 asserted the defense despite the Supreme Courts rules. Bondholder Pls. These suggestions only serve to highlight how groundless the plaintiffs position is. In this regard, plaintiffs heavy reliance on Pemex is misplaced.

In Pemex. After a new development during the course of the appeal, the defendant-appellant asked the Second Circuit to remand to the Southern District so that the district court could consider the merits of the case. Once the Southern District ruled against the defendant-appellant, the defendant-appellant reasserted its challenge of personal jurisdiction. The Second Circuit held that the defendant-appellant waived its personal jurisdiction defense because it had affirmatively asked the Second Circuit to send the case back to the Southern District in hopes of a favorable merits ruling below.

Defendants have done nothing of the sort here. After the Supreme Courts decision, defendants appropriately preserved the personal jurisdiction defense in the Second Circuit and subsequently moved on personal jurisdiction grounds in this Court at the first opportunity they could post - Daimler. Request for Jurisdictional Discovery Despite the tomes of submissions, plaintiffs have not made a threshold showing that there is some basis for the assertion of jurisdiction.

Daval Steel Prods. Juraj Dalmatinac.

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