IN RE: EUROPEAN GOVERNMENT BONDS ANTITRUST LITIGATION

USDC SDNY

DOCUMENT

ELECTRONICALLY FILED

UNITED STATES DISTRICT COURT DOC #:

THERN DISTRICT OF NEW YORK :

eee OE Ney ORK nex DATE FILED: 12/11/2020

IN RE BUROPEAN GOVERNMENT BONDS : 19 Civ. 2601 (VM)

ANTITRUST LITIGATION :

: DECISION AND ORDER

------- A XxX

VICTOR MARRERO, United States District Judge.

Plaintiffs Ohio Carpenters’ Pension Fund (“Ohio

Carpenters”) and Electrical Workers Pension Fund Local 103

I.B.E.W. (“Local 103,” and collectively with Ohio Carpenters,

“Plaintiffs”)' commenced this putative antitrust class

action, on behalf of themselves and all others similarly

Situated, against defendants Bank of America Merrill Lynch

International Designated Activity Company, Merrill Lynch

International, NatWest Markets plc, UBS AG, UBS Europe SE,

UniCredit Bank AG, Bank of America, N.A., NatWest Markets

Securities Inc., UBS Securities LLC, UniCredit Capital

Markets LLC, Natixis S.A. (“Natixis”), Nomura International

ple (“Nomura International”), and Nomura Securities

International Inc. (“NSI,” and collectively with all

foregoing defendants, “Defendants”).

Plaintiffs purport to represent a class of all persons

or entities who purchased or sold European Government Bonds

+ A third plaintiff in this action, Boston Retirement System, was

dismissed on July 23, 2020. (See Dkt. No. 115.)

(“EGBs”) in the United States directly from Defendants

between January 1, 2007 and December 31, 2012 (the “Class

Period”), with the exception of Defendants, their employees

and affiliates, and the United States government. In their

Third Amended Consolidated Class Action Complaint, Plaintiffs

claim that Defendants conspired to fix EGB prices during the

Class Period, in violation of the Sherman Act, 15 U.S.C. § 1.

(See “TAC,” Dkt. No. 87.)

By letter dated February 26, 2020, Defendants notified

Plaintiffs of their intent to move to dismiss the TAC. (See

“Letter Motion,” Dkt. No. 110.) The Letter Motion raised four

grounds for dismissal: (1) failure to plead antitrust

conspiracy; (2) failure to plead antitrust standing; (3)

failure to timely file this action; and (4) failure to plead

personal jurisdiction over the foreign defendants, including,

as relevant here, Natixis and Nomura International. By letter

dated March 11, 2020, Plaintiffs opposed the Letter Motion.

(See Dkt. No. 114.)

The Court construed Defendants’ Letter Motion as a

motion to dismiss the TAC pursuant to Federal Rules of Civil

Procedure 12(b)(2) and 12(b)(6) and granted the motion as to

all Defendants, except Natixis, Nomura International, and NSI

(collectively, “Moving Defendants”). (See “Order,” Dkt. No.

115.)

Pending before the Court is a motion for reconsideration

of the Order, filed by Moving Defendants on August 6, 2020.

(See “Notice of Motion,” Dkt. No. 119, and Defendants’

Memorandum of Law (“Defs.’ Mem.”), Dkt. No. 120, collectively

the “Reconsideration Motion.”) Plaintiffs filed a memorandum

of law, opposing the motion on August 20, 2020, (see

Plaintiffs’ Memorandum of Law (“Opposition”), Dkt. No. 124),

and Moving Defendants filed a reply memorandum of law in

further support of the Reconsideration Motion on August 27,

2020, (see Defendants’ Reply Memorandum of Law (“Reply”),

Dkt. No. 130). Moving Defendants additionally filed a

supplemental authority letter on December 7, 2020, (see

Supplemental Authority Letter, Dkt. No. 137), and Plaintiffs

responded by letter on December 9, 2020, (see Opposition

Letter, Dkt. No. 138). For the reasons set forth below, the

Reconsideration Motion is DENIED.

I. LEGAL STANDARD

Motions for reconsideration are governed by Local Rule

6.3, which is “intended to ‘ensure the finality of decisions

and to prevent the practice of a losing party examining a

decision and then plugging the gaps of a lost motion with

additional matters.’” SEC v. Ashbury Capital Partners, L.P.,

No. 00 Civ. 7898, 2001 WL 604044, at *1 (S.D.N.Y. May 31,

2001) (quoting Carolco Pictures, Inc. v. Sirota, 700 F. Supp.

169, 170 (S.D.N.Y. 1988)). When assessing a motion for

reconsideration, a district court must “narrowly construe and

strictly apply” Local Rule 6.3 to “avoid duplicative rulings

on previously considered issues” and to prevent the rule from

being used to advance theories not previously argued or as “a

substitute for appealing a final judgment.” Montanile v.

Nat’l Broad. Co., 216 F. Supp. 2d 341, 342 (S.D.N.Y. 2002).

Reconsideration is “an extraordinary remedy to be

employed sparingly in the interests of finality and

conservation of scarce judicial resources.” In re Health

Mgmt. Sys., Inc. Sec. Litig., 113 F. Supp. 2d 613, 614

(S.D.N.Y. 2000). Accordingly, the Second Circuit has held

that the threshold for granting a motion to reconsider is

“high,” and such motions are generally denied “unless the

moving party can point to controlling decisions or data that

the court overlooked -- matters, in other words, that might

reasonably be expected to alter the conclusion reached by the

court.” Nakshin v. Holder, 360 F. App’x 192, 193 (2d Cir.

2010); see also Shrader v. CSX Transp., Inc., 70 F.3d 255,

257 (2d Cir. 1995).

“The major grounds justifying reconsideration are ‘an

intervening change of controlling law, the availability of

new evidence, or the need to correct a clear error or prevent

manifest injustice.’” Virgin Atl. Airways, Ltd. v. Nat’l

Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992); accord

Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable

Tr., 729 F.3d 99, 104 (2d Cir. 2013). “[A] motion to

reconsider should not be granted where the moving party seeks

solely to relitigate an issue already decided.” Shrader, 70

F.3d at 257; see also Analytical Surveys, Inc. v. Tonga

Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012) (noting that

reconsideration “is not a vehicle for relitigating old

issues, presenting the case under new theories, securing a

rehearing on the merits, or otherwise taking a second bite at

the apple” (internal quotation marks omitted)).

The decision to grant or deny a motion for

reconsideration rests within “the sound discretion of the

district court.” Aczel v. Labonia, 584 F.3d 52, 61 (2d Cir.

2009) (citations omitted).

II. DISCUSSION

The Court finds that the Reconsideration Motion here

does not meet this exacting standard. Moving Defendants make

several unavailing arguments regarding the Court’s alleged

misinterpretation of the relevant caselaw. For example,

Moving Defendants argue that Plaintiffs did not plead

antitrust standing as to Natixis and Nomura International

because they did not plead facts regarding specific

transactions with either entity. Moving Defendants insist

that, in holding otherwise, the Court misinterpreted Harry v.

Total Gas & Power North America, Inc., 244 F. Supp 3d. 402

(S.D.N.Y. 2017), and Allianz Global Investors GmbH v. Bank of

America Corp., No. 18 Civ. 10364, 2020 WL 2765693 (S.D.N.Y.

May 28, 2020). However, Moving Defendants do not claim that

the Court overlooked these cases. Indeed, by citing the

Order’s analysis of them, the Reconsideration Motion

acknowledges that the Court considered these cases. (See

Defs.’ Mem. at 6, 8 (citing Order at 42, 45-46).) Rather,

Moving Defendants simply disagree with the Court’s

examination and application of the legal standard. But

disagreement as to a court’s interpretation of a case is an

insufficient ground for reconsideration.

Likewise, Moving Defendants argue that the Court

overlooked case law requiring a “relevant, suit-related

connection to the forum” to subject Natixis and Nomura

International to personal jurisdiction here. (Defs.’ Mem. at

12.) But, again, many of the cases Moving Defendants cite as

“overlooked” were also cited and relied upon in the Order.

(See, e.g., Order at 17 (citing Walden v. Fiore, 571 U.S. 277

(2014)); 18, 20-21, 29 (citing Charles Schwab Corp. v. Bank

of Am. Corp., 883 F.3d 68 (2d Cir. 2018)).). As is well-

established, disagreement with the Court’s analysis does not

entitle Moving Defendants to reconsideration.2

At other points, Moving Defendants propose alternative

legal standards, which they argue the Court should have

applied. For example, Moving Defendants argue that “[i]n

holding that Plaintiffs appropriately relied on Defendants’

Codes of Ethics to satisfy the due diligence requirement of

fraudulent concealment, the Court overlooked controlling

precedent in Singh v. Cigna Corp., 918 F.3d 57 (2d Cir.

2019).” (Defs.’ Mem. at 19 (citing Order at 29-36).) However,

as Moving Defendants seem to acknowledge, Singh does not

address fraudulent concealment. (See Defs.’ Mem. at 20.) In

the Order, the Court thoroughly examined the Codes of Ethics

here and determined that the representations contained

therein supported the Court’s conclusion that Plaintiffs

satisfied the third prong of fraudulent concealment: due

diligence. (Order at 36-37.) Moving Defendants do not offer

any proper basis to alter that finding under the appropriate

legal standards.

2 Nor is the Court persuaded to alter its personal jurisdiction

analysis in light of the Supplemental Authority Letter. The case Moving

Defendants offer in further support of their motion -- In re Mex.

Gov’t Bonds Antitrust Litig., No. 18 Civ. 02830, 2020 WL 7046837

(S.D.N.Y. Nov. 30, 2020) (“MGB II”) -- is not controlling authority,

nor were its legal underpinnings previously overlooked by this Court.

The analysis in MGB II rested on the court’s reading of Schwab, 883

F.3d 68, which this Court was aware of and considered extensively in

the Order. (See Order at 20-21.)

The Reconsideration Motion also asks the Court to

dispute the facts alleged in the TAC and reconsider certain

inferences drawn therefrom. For example, Moving Defendants

argue -- for the first time -- that the TAC does not establish

that Plaintiffs were “direct purchasers,” and thus Plaintiffs

lack antitrust standing. (Defs.’ Mem. at 8-9.) But the Court

previously found that the TAC alleged Ohio Carpenters

purchased EGBs from Natixis and Local 103 transacted directly

with Nomura International. (See Order at 45 (citing TAC ¶¶

32–34).) Moving Defendants offer no persuasive basis in fact

or law for the Court to alter that finding, apart from its

differing interpretation of the facts alleged.

Similarly, Moving Defendants contend that the Court

misinterpreted and improperly credited Figure 12. However,

the Court thoroughly scrutinized Figure 12 in the Order and

addressed many of the issues Moving Defendants raise now. For

instance, Moving Defendants argue that Figure 12 does not

support claims against Natixis because Plaintiffs do not

allege Natixis is a primary dealer in Italian EGBs. (Defs.’

Mem. at 22.) But the Court already concluded that while

Natixis “was not a Primary Dealer participating in the Italian

government bond auctions . . . that is not necessarily

preclusive of a conspiracy.” (Order at 64.) In asking the

Court to revisit its interpretation of the facts alleged in

the TAC, Moving Defendants not only propose a standard that

is inappropriately skeptical on a motion to dismiss, but

pursue reconsideration on a legally invalid basis.

The Court finds the remainder of Moving Defendants’

arguments unavailing for substantially the same reasons.

Moving Defendants nowhere identify “controlling decisions or

data that the court overlooked” that would alter any of the

Court’s prior conclusions. Nakshin, 360 F. App'x at 193.

Instead, as detailed above, Moving Defendants’ motion

attempts to impermissibly take a second bite of the proverbial

apple. And when, as here, a party seeks “solely to relitigate

. . . issue[s] already decided,” the motion for

reconsideration must be denied. Shrader, 70 F.3d at 257.

IIt. ORDER

For the reasons discussed above, it is hereby

ORDERED that defendants Natixis S.A., Nomura

International ple, and Nomura Securities International Inc.’s

motion for reconsideration (Dkt. No. 119) is DENIED.

SO ORDERED.

Dated: New York, New York

11 December 2020

JEZE2

gd jo

—Jictor Marrero.

U. oe Dede