The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
NEW ORLEANS CITY, ET AL. CIVIL ACTION
VERSUS NO. 20-2570-WBV-MBN
BANK OF AMERICA CORPORATION, ET AL. SECTION: D (5)
ORDER AND REASONS
Before the Court is a Consent Motion for Transfer of Venue Pursuant to 28
U.S.C. § 1404(a) and the “First Filed” Rule,1 filed by defendants, Wells Fargo & Co,
Wells Fargo Securities, LLC, JPMorgan Chase Bank, N.A., J.P. Morgan Securities,
LLC, Jefferies Group, LLC, Stifel, Nicolaus & Co., Inc., UBS Securities LLC, Morgan
Stanley & Co. LLC, SG Americas Securities, LLC, HSBC Securities (USA), Inc.,
Nomura Securities International, Inc., BMO Capital Markets Corp., Cantor
Fitzgerald & Co., TD Securities (USA) LLC, BNP Paribas Securities Corp., Credit
Suisse Securities (USA) LLC, Bank of America Corporation, Merrill Lynch, Barclays
Bank PLC, Barclays Capital Inc., Citigroup Global Markets, Inc., and Raymond
James & Associates, Inc. (collectively, “Defendants”). Plaintiffs The City of New
Orleans, the New Orleans Municipal Employees Retirement System and the New
Orleans Aviation Board (collectively, “Plaintiffs”) consent to the Motion.2
After careful consideration of the Motion and the applicable law, the Motion is
GRANTED.
1 R. Doc. 89.
2 Id. at p. 1.
I. FACTS AND PROCEDURAL HISTORY
On September 21, 2020, Plaintiffs filed a Complaint For Damages Pursuant to
the Sherman Antitrust Act, alleging that Defendants conspired to fix the prices of
unsecured debt issued by certain government-sponsored entities (“GSEs”) between
2009 and 2016.3 Plaintiffs allege that Defendants’ actions violated Section 1 of the
Sherman Act, 15 U.S.C. § 1, et seq.4
Defendants filed the instant Consent Motion for Transfer of Venue Pursuant
to 28 U.S.C. § 1404(a) and the “First Filed” Rule on March 3, 2021.5 Defendants
assert that this case should be transferred to the Middle District of Louisiana because
Plaintiffs’ claims are nearly identical to the claims asserted in three earlier-filed
actions brought by the same counsel on behalf of other Louisiana governmental
entities, which are currently pending in the Middle District of Louisiana. 6
Defendants claim there is precedent for the requested transfer, as another Section of
this Court recently granted a similar motion to transfer a case to the Middle District
of Louisiana that involved many of the same defendants as in this this case.7
Defendants contend that Plaintiffs’ claims in this action also overlap substantially
3 R. Doc. 1. Plaintiffs also named Credit Suisse AG and Mizuho Securities (USA) LLC as defendants
in this case, but they were dismissed from the case on February 17, 2021. (R. Doc. 86).
4 R. Doc. 1 at pp. 93-94.
5 R. Doc. 89.
6 Id. at pp. 1-2 (citing State of Louisiana v. Bank of Am., N.A., et al., Case No. 3:19-cv-638 (M.D. La.);
City of Baton Rouge/East Baton Rouge Parish, et al. v. Bank of Am. N.A., et al., Case No. 3:19-cv-725
(M.D. La.); Louisiana Asset Management Pool v. Bank of Am. Corp., et al., Case No. 3:21-cv-00003
(M.D. La.)).
7 R. Doc. 89 at p. 9 (citing R. Doc. 163 in Louisiana Asset Management Pool v. Bank of Am. Corp., et
al., Case No. 2:20-cv-1095 (E.D. La. Dec. 31, 2020)).
with the claims in the three prior actions, and that transfer to the Middle District of
Louisiana would serve judicial economy, comity, and sound judicial administration.8
II. LAW AND ANALYSIS
“The Fifth Circuit adheres to the general rule that the court in which an action
is first filed is the appropriate court to determine whether subsequently filed cases
involving substantially similar issues should proceed.”9 According to the Fifth
Circuit, “The ‘first to file’ rule is grounded in principles of comity and sound judicial
administration. ‘The federal courts long have recognized that the principle of comity
requires federal district courts – courts of coordinate jurisdiction and equal rank – to
exercise care to avoid interference with each other’s affairs.’”10 “The concern
manifestly is to avoid the waste of duplication, to avoid rulings which may trench
upon the authority of sister courts, and to avoid piecemeal resolution of issues that
call for a uniform result.”11 The Fifth Circuit has clarified that the first to file rule
does not require that the cases be identical, and that, “The crucial inquiry is one of
‘substantial overlap.’”12 In determining whether substantial overlap exists, courts
consider whether the core issues are the same or if much of the proof adduced would
likely be identical.13
8 R. Doc. 89 at p. 2.
9 Save Power Ltd. v. Syntek Fin. Corp., 121 F.3d 947, 950 (5th Cir. 1997) (citations omitted).
10 Id. (quoting West Gulf Maritime Ass’n v. ILA Deep Sea Local 24, 751 F.2d 721, 728 (5th Cir. 1985)).
11 Save Power Ltd., 121 F.3d at 950 (quoting West Gulf, 751 F.2d at 729) (internal quotation marks
omitted).
12 Save Power Ltd., 121 F.3d at 950 (quoting Mann Mfg., Inc. v. Hortex, Inc., 439 F.2d 403, 408 (5th
Cir. 1971)).
13 Int’l Fid. Ins. Co. v. Sweet Little Mexico Corp., 665 F.3d 671, 677 (5th Cir. 2011) (quoting W. Gulf
Maritime Ass’n, 751 F.2d at 730; Mann Mfg., Inc., 439 F.2d at 407) (quotation marks omitted).
Applying the first to file rule, the Court finds that there is substantial overlap
between the claims asserted in this case and the claims asserted in the three prior
cases now pending in the Middle District of Louisiana.14 All of the cases allege facts
that arise out of an alleged conspiracy to fix the prices of unsecured issued by the
GSEs, including the Federal National Mortgage Association (“Fannie Mae”), the
Federal Home Loan Bank (“FHLB”), and the Federal Home Loan Mortgage
Corporation (“Freddie Mac”) between 2009 and 2016. All of the cases also allege
violations of Section 1 of the Sherman Act, 15 U.S.C. § 1, et seq. While the other cases
also allege violations under the Louisiana Unfair Trade Practices and Consumer
Protection Act (“LUTPA”), there remains a substantial overlap in the Sherman Act
claims, and the Fifth Circuit has held that the first to file rule does not require that
the cases be identical. Additionally, approximately 20 of the 23 remaining defendants
in this case are named as defendants in each of the three cases pending in the Middle
District of Louisiana.15 Further, Plaintiffs consent to the transfer, indicating that
they will not be prejudiced if the case is transferred to the Middle District of
Louisiana.
Because Defendants have demonstrated the likelihood of substantial overlap
between this case and the three cases currently pending in the Middle District of
Louisiana, the Court finds that this case should be transferred to the Middle District
14 State of Louisiana v. Bank of Am., N.A., et al., Case No. 3:19-cv-638 (M.D. La.); City of Baton
Rouge/East Baton Rouge Parish, et al. v. Bank of Am. N.A., et al., Case No. 3:19-cv-725 (M.D. La.);
Louisiana Asset Management Pool v. Bank of Am. Corp., et al., Case No. 3:21-cv-00003 (M.D. La.)).
15 See, State of Louisiana v. Bank of Am., N.A., et al., Case No. 3:19-cv-638 (M.D. La.); City of Baton
Rouge/East Baton Rouge Parish, et al. v. Bank of Am. N.A., et al., Case No. 3:19-cv-725 (M.D. La.);
Louisiana Asset Management Pool v. Bank of Am. Corp., et al., Case No. 3:21-cv-00003 (M.D. La.)).
of Louisiana under the first to file rule. The Court finds that transfer to the Middle
District of Louisiana will serve judicial economy, comity, and sound judicial
administration, and will avoid piecemeal litigation of the issues in this case.
HiIl. CONCLUSION
For the reasons stated above, IT IS HEREBY ORDERED that the Consent
Motion for Transfer of Venue Pursuant to 28 U.S.C. § 1404(a) and the “First Filed”
Rule!6 is GRANTED. IT IS FURTHER ORDERED that this case shall be
TRANSFERRED to the United States District Court for the Middle District of
Louisiana.
New Orleans, Louisiana, March 8, 2021.
WENDY hiteal
United States District Judge
16 R. Doc. 89.