IN RE: EUROPEAN GOVERNMENT BONDS ANTITRUST LITIGATION

UOLVe OVNI

DOCUMENT

UNITED STATES DISTRICT COURT ELECTRONICALLY FILED

SOUTHERN DISTRICT OF NEW YORK DOC fe

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IN RE EUROPEAN GOVERNMENT BONDS 19 Civ. 2601 (VM)

ANTITRUST LITIGATION

3 DECISION AND ORDER

VICTOR MARRERO, United States District Judge.

Plaintiffs Ohio Carpenters’ Pension Fund (“Ohio

Carpenters”), San Bernardino County Employees’ Retirement

Association (“SBCERA”), and Electrical Workers Pension Fund

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

Carpenters and SBCERA, “Plaintiffs”) bring this putative

antitrust class action, on behalf of themselves and all others

Similarly situated, against defendants Bank of America, N.A.

(“BANA”); Merrill Lynch International (“Merrill Lynch”);

Natixis S.A. (“Natixis”); NatWest Markets plc (“NatWest

Markets”); NatWest Markets Securities Inc. (“NMSI”); Nomura

Securities International Ince. (“NSTI”); Nomura Securities

International ple (“Nomura International”); UBS AG; UBS

Europe SE (“UBS Europe”); and UBS Securities LLC (“UBS

Securities”); UniCredit Bank AG (“UCB”); UniCredit Capital

Markets LLC (“UCM”); Citigroup Global Markets Limited

(“CGML”); Citigroup Global Markets Inc. (“CGMI”); JP Morgan

Chase Bank, N.A. (“JP Morgan Bank”); J.P. Morgan Securities

ple (“JP Morgan ple”); J.P. Morgan Securities LLC (“JP Morgan

LLC”); RBC Europe Limited (“RBCE”); Royal Bank of Canada; RBC

Capital Markets (“RBC Capital Markets”); Jefferies

International Limited (“JIL”); and Jefferies LLC

(collectively with all foregoing defendants, the “Moving

Defendants”); and State Street Corporation and State Street

Bank and Trust Company (together, “State Street,” 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

(“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

Fourth Amended Consolidated Class Action Complaint (the

“FAC”), Plaintiffs claim that Defendants conspired to fix EGB

prices during the Class Period, in violation of the Sherman

Act, 15 U.S.C. Section 1. (See FAC, Dkt. No. 146.)

On April 16, 2021, all Defendants besides State Street

divided into three different groups and informed Plaintiffs,

via letter, of their intent to move to dismiss the FAC. (See

“TAC Defendants Letter Motion,” Dkt. No. 206-1; “New

Defendants Letter Motion,” Dkt. No. 206-2; “Foreign

Defendants Letter Motion,” Dkt. No. 206-3, collectively

“Letter Motions.”) Defendants argued that the FAC (1) was

time-barred, (2) inadequately alleged the existence of an

agreement to manipulate the EGB market, (3) failed to tie

each defendant to the alleged conspiracy, and (4) failed to

adequately and plausibly plead an antitrust conspiracy under

prevailing law. Defendants also argued that Plaintiffs lack

antitrust standing, and certain Defendants argued that the

FAC does not establish personal jurisdiction over any

foreign-based Defendant. By three letters dated May 17, 2021,

Plaintiffs responded to the Letter Motions, refuting all

grounds for dismissal. (See “Opposition to TAC Defendants,”

Dkt. No. 206-4; “Opposition to New Defendants,” Dkt. No. 206-

5; “Opposition to Foreign Defendants,” Dkt. No. 206-6,

collectively “Opposition Letters.”)

On March 14, 2022, the Court issued a decision and order

construing the Letter Motions as motions to dismiss pursuant

to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(6).

The Court granted the motions to dismiss of defendants Merrill

Lynch, BANA, NatWest Markets, NMSI, UBS AG, UBS Europe, UBS

Securities, UCM, JP Morgan plc, JP Morgan Bank, JP Morgan

LLC, RBCE, RBC Capital Markets, and Royal Bank of Canada, but

denied the motions of defendants Natixis, Nomura

International, NSI, UCB, CGML, CGMI, JIL, and Jefferies LLC.

See In re European Gov. Bonds Antitrust Litig., No. 19 Civ.

2601, 2022 WL 768680 (S.D.N.Y. Mar. 14, 2022) (“MTD Order”).

Now pending before the Court are motions for

reconsideration of the MTD Order, and accompanying

memorandums of law, filed by (1) CGML, CGMI, JIL, and

Jefferies (collectively, “Citigroup and Jefferies”) (see

“Citigroup and Jefferies Motion,” Dkt. No. 239); (2) UCB (see

“UCB Motion,” Dkt. No. 241); and (3) Natixis (with all

foregoing, “Moving Defendants”). (See “Natixis Motion,” Dkt.

No. 243).1 Plaintiffs filed a memorandum of law, opposing the

motion on April 15, 2022, (see “Plaintiffs’ Memorandum of

Law” or “Opposition”, Dkt. No. 248), and Moving Defendants

filed reply memorandums of law in further support of the

Reconsideration Motions on April 28, 2022. (See Dkt. Nos.

250, 251, 253). For the reasons set forth below, the

Reconsideration Motions are DENIED.

I. LEGAL STANDARD

The Court notes that many parties to this action should

be familiar with the legal standards for a motion for

reconsideration, as defendant Natixis (joined by non-movants

Nomura International and NMSI) previously moved for

reconsideration of the Court’s decision to deny its motion to

dismiss the Third Amended Complaint. The Court denied that

motion for reconsideration on December 11, 2020. See In re

1 For brevity, the Court will refer to the Citigroup and Jefferies Motion,

the UCB Motion, and the Natixis Motion collectively as the

“Reconsideration Motions.”

Eur. Gov’t Bonds Antitrust Litig., No. 19 Civ. 2601, 2020 WL

7321056 (S.D.N.Y. Dec. 11, 2020) (“First Reconsideration

Order”).

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) (quotations

omitted); 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 Motions do not

meet this exacting standard. Moving Defendants do not move

for reconsideration due to a change in controlling law or the

availability of any new evidence; their Motion focuses only

on “the need to correct a clear error,” namely that the Court

allegedly overlooked certain facts. Virgin Atl. Airways,

Ltd., 956 F.2d at 1255 (explaining the three possible bases

on which a court can grant a motion for reconsideration).

Moving Defendants make several unavailing arguments

regarding the Court’s alleged failure to consider certain

factual allegations or pieces of information. All three

Motions focus entirely on disagreement with the way the Court

evaluated certain allegations in the FAC. In making these

arguments, Moving Defendants are doing precisely what they

did last time parties to this case moved for reconsideration

of a motion to dismiss order: “asking the Court to revisit

its interpretation of the facts alleged in the [Complaint

and] . . . not only propose a standard that is inappropriately

skeptical on a motion to dismiss, but pursue reconsideration

on a legally invalid basis.” First Reconsideration Order,

2020 WL 7321056, at *3. As the Court noted then, this is an

improper basis to seek reconsideration. The standard for

reconsideration has not changed since the First

Reconsideration Order.

Moreover, Moving Defendants ask the Court to compare the

allegations in the FAC with findings from the European

Commission’s May 20, 2021 Decision (the “EC Decision”) and

weigh issues of fact. As the Court noted in the MTD Order, a

court deciding a motion to dismiss may take judicial notice

of certain documents, but under Second Circuit law, a district

court is prohibited from taking notice of the documents for

the truth of the matters asserted therein. See MTD Order,

2022 WL 768680, at *2 (citing Staehr v. Hartford Fin. Servs.

Grp., 547 F.3d 406, 425 (2d Cir. 2008) and Roth v. Jennings,

489 F.3d 499, 509 (2d Cir. 2007)). The Court may take notice

only of the existence of the EC Decision and the existence of

the facts contained within the document. Id. The Court cannot

compare Figure 12 –- the exhibit to the FAC that Moving

Defendants claim the Court misinterpreted -- or any facts

alleged in the FAC to the EC Decision.

Moving Defendants’ Motions for Reconsideration all share

a common thread of attempting to take a second bite at the

motion to dismiss apple while asking the Court to make

decisions that are more appropriately suited for summary

judgment. On a motion to dismiss, a district court’s duty is

to determine whether the allegations in the complaint

adequately state a claim for the legal injury alleged. With

that in mind, the Court briefly addresses each of the three

Motions.

A. Citigroup and Jefferies

Citigroup and Jefferies argue that the Court erred by

(1) overlooking Citigroup and Jefferies’ omission from the EC

Decision; (2) failing to properly analyze the substance of

the FAC’s chat transcripts involving either entity; (3)

improperly analyzing Figure 12 of the FAC, including by

failing to account for how it compares to the European

Commission’s findings; and (4) that “the Court erred in

inferring that Jefferies was a primary dealer of Italian

government bonds.” (Citibank and Jefferies Motion at 5.) The

Court finds none of these arguments to meet the high bar for

a grant of reconsideration.

As for the first argument, Citigroup and Jefferies state

that the Court failed to credit their absence from the EC

Decision as reason to find Plaintiffs failed to allege a

plausible conspiracy involving them. However, though the

Court did not explicitly say as much, the absence of both

parties from the EC Decision did weigh into its consideration.

As seen in the Court’s discussion of other defendants, the

Court noted where a party was included in the EC Decision and

counted it as a plus factor supporting an inference of

conspiracy. See, e.g., MTD Decision, 2022 WL 768680, at *22

(“Most notably, Natixis is named in the EC Decision as a party

to the EGB cartel, and the FAC alleges Natixis was one party

subjected to the European Commission investigation.”) In

order to adequately allege a defendant played a role in an

alleged conspiracy, a plaintiff must show conscious

parallelism, circumstantial evidence, and “plus factors.”

Mayor & Council of Balt. v. Citigroup, 709 F.3d 129, 136 (2d

Cir. 2013). The Court focused its discussion on whether

Plaintiffs satisfied these requirements and what allegations

were present. Given the volume of information and the number

of parties involved in this suit, it would have been imprudent

and inefficient for the Court to specifically articulate

every plus factor that was absent for each defendant. As

evidenced in the legal standard set forth by the Second

Circuit, the law does not require courts to explicitly weigh

the absence of certain factors when deciding whether it can

infer a plausible antitrust conspiracy from the face of a

complaint, see id., so this Court sees no basis for

reconsideration here.

Next, Citigroup and Jefferies point to the Court’s

decision to dismiss the Royal Bank of Canada (“RBC”)

Defendants and NatWest Markets as evidence that the Court

erred in its consideration of their motions to dismiss. But

the Court clearly explained that its reasoning for dismissing

RBC and NatWest Markets was that Plaintiffs failed to

plausibly allege any conscious parallelism as to those

defendants. Thus, the fact that chatroom transcripts showed

high levels of interfirm communication was irrelevant because

plus factors only matter if there is parallel behavior. See

MTD Order, 2022 WL 768680, at *22–23 (quoting Mayor & Council

of Balt. v. Citigroup, 709 F.3d 129, 136 (2d Cir. 2013)).

Citigroup and Jefferies’ dispute about the substance of

the chat transcripts, as well as their contentions that the

Court improperly analyzed Figure 12 and failed to consider

that Jefferies was not a primary dealer in Italian EGBs,2

amount to disagreements with the way in which the Court

interpreted the allegations in the Complaint. “[D]isagreement

with the Court’s analysis of [one’s] arguments is not a basis

for reconsideration.” Shim-Larkin v. City of New York, No. 16

Civ. 6099, 2022 WL 1239859, at *1 (S.D.N.Y. Apr. 27, 2022).

The Court independently considered the arguments for

dismissal made by each group of defendants, and it

2 The Court also reiterates its holding from the First Reconsideration

Order -- and first motion to dismiss decision -- that not being a primary

dealer in the Italian EGB market “is not necessarily preclusive of a

conspiracy.” First Reconsideration Order, 2020 WL 7321056, at *3

(quoting In re Euro. Gov’t Antitrust Litig., No. 19 Civ. 2601, 2020 WL

4273811, at *19 (S.D.N.Y. July 23, 2020)).

painstakingly assessed the allegations that pertained to each

individual defendant, drawing all reasonable inferences in

favor of the plaintiff, as it was bound to do. See, e.g.,

Litwin v. Blackstone Grp., L.P., 634 F.3d 706, 715 (2d Cir.

2011) (discussing the motion to dismiss standard). Citigroup

and Jefferies disagree with the Court’s inferences and

conclusions as to themselves and several of their co-

defendants, but as the Second Circuit, and this Court, has

repeatedly reminded Defendants, a “motion to reconsider

should not be granted where the moving party seeks solely to

relitigate an issue already decided.” Koger v. Richardson,

858 F. App’x 425, 427 (2d Cir. 2021) (quoting, 70 F.3d at

257).

B. UCB

UCB moved for reconsideration because it believed the

Court overlooked that its alleged parallel conduct was not

suggestive of a conspiracy and that the plus factors

identified by the Court failed to support Plaintiff’s claim.

This motion fails for the same reasons discussed above. UCB

phrases its motion to suggest that the Court overlooked and

failed to consider key evidence, but its substantive

arguments reveal that UCB’s challenge is actually based on

its disagreement with the Court’s conclusions and amounts to

relitigation of its motion to dismiss. For example, UCB cannot

claim the Court overlooked Figure 12 when Figure 12 is

discussed at length in the MTD Order.

UCB contends the plus factors identified by the Court

did not support Plaintiffs’ alleged conspiracy because they

were at odds with facts in the EC Decision. As discussed

above, the Court is bound to accept all facts alleged in the

Complaint as true at this stage. While it took judicial notice

of the EC Decision’s existence and that the EC Decision

announced several entities participated in a conspiracy, that

notice does not mean that the Court can consider all facts in

the EC Decision as true and strike any conflicting allegations

from the FAC. Asking the Court to do so would be an improper

argument on a motion to dismiss, and it has no greater success

on a motion for reconsideration.

C. Natixis

Natixis’s Motion is similarly premised and similarly

faulty. Natixis claims reconsideration is warranted and their

motion to dismiss should be granted because the Court failed

to consider certain facts about Figure 12, that Natixis was

not a primary dealer of Italian EGBs, and that Natixis’s

inclusion in the EC Decision is not enough to adequately

allege an antitrust claim. But, as already discussed, the

Court did assess Figure 12 at length and Natixis’s discontent

with its conclusions does not provide grounds for

reconsideration. Similarly, the Court specifically refuted

Natixis’s argument about not being an Italian primary market

dealer in its decision on Natixis’s prior motion for

reconsideration. See First Reconsideration Order, 2020 WL

7321056, at *3 (quoting In re Euro. Gov’t Antitrust Litig.,

No. 19 Civ. 2601, 2020 WL 4273811, at *19 (S.D.N.Y. July 23,

2020)). And third, Natixis’s inclusion in the EC Decision was

not the only factor considered in the Court’s decision that

it could infer a plausible antitrust conspiracy involving

Natixis. Natixis does not point to any change in controlling

law or newly uncovered evidence that would require the Court

to reconsider its prior decision. The Court finds the standard

for reconsideration has not been met by any of the three

Motions, and all three shall be denied.

III. ORDER

For the reasons discussed above, it is hereby

ORDERED that the motion of defendants Citigroup Global

Markets Inc., Citigroup Global Markets Limited, Jefferies

International Limited, and Jefferies LLC for reconsideration

(Dkt. No. 238) is DENIED; and it is further

ORDERED that the motion of defendant Unicredit Bank AG

for reconsideration (Dkt. No. 240) is DENIED; and it is

further

ORDERED that the motion of defendant Natixis S.A. for

reconsideration (Dkt. No. 242) is DENIED.

The parties are hereby directed to submit a joint letter,

within thirty (30) days of the date of this Order, addressing

the following in separate paragraphs: (1) a brief description

of the case, including the factual and legal bases for the

claim(s) and defense(s); (2) any contemplated motions; (3)

the prospect for settlement; and (4) whether the parties

consent to proceed for all purposes before the Magistrate

Judge designated for this action. The parties are also

directed to submit a completed proposed Case Management Plan

that provides that discovery is to be completed within four

months unless otherwise permitted by the Court. A model Case

Management Plan is available on the Court’s website:

https://nysd.uscourts.gov/hon-victor-marrero.

SO ORDERED.

Dated: New York, New York LEZED

16 June 2022, Victor Marrero.

U.8sBeds

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