# The City of Philadelphia v. Bank of America Corporation

> District Court, S.D. New York · June 28, 2022

URL: https://www.frixlaw.com/law-library/cases/10342286

## Case

- **Court:** District Court, S.D. New York
- **Decided:** June 28, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------------- X
:
CITY OF PHILADELPHIA, et al., :
:
Plaintiffs, :
: 19-CV-1608 (JMF)
-v- :
: OPINION AND ORDER
BANK OF AMERICA CORPORATION, et al., :
:
Defendants. :
:
---------------------------------------------------------------------- X
JESSE M. FURMAN, United States District Judge:
In these consolidated putative class actions, Plaintiffs allege that, between 2008 and
2016, remarketing agents at some of the world’s largest banks conspired to fix the interest rates
for a type of bond called Variable Rate Demand Obligations (“VRDOs”). Specifically, three
VRDO issuers — the City of Philadelphia (“Philadelphia”), the Mayor and City Council of
Baltimore (“Baltimore”), and the Board of Directors of the San Diego Association of
Governments (“San Diego”) — bring claims on behalf of themselves and a proposed class of
local and state public entity issuers against eight banks (collectively, the “Banks” or
“Defendants”).1 They allege that the Banks violated Section 1 of the Sherman Antitrust Act, 15
U.S.C. § 1, and breached contractual and fiduciary duties under state law. In November 2020,
this Court granted in part and denied in part Defendants’ first motion to dismiss Plaintiffs’
claims. See City of Philadelphia v. Bank of Am. Corp., 498 F. Supp. 3d 516 (S.D.N.Y. 2020). In
particular, to the extent relevant here, the Court concluded that Philadelphia had failed to state a

1 Plaintiffs also sue various parents, affiliates, subsidiaries, predecessors, and successors of
the Defendant Banks. For a full list of Defendants, see City of Philadelphia v. Bank of Am.
Corp., 498 F. Supp. 3d 516, 521 n.2 (S.D.N.Y. 2020).
claim for breach of fiduciary duty under Pennsylvania law but declined to dismiss Baltimore’s
fiduciary-duty claim under Maryland law. See id. at 534-36. The Court also rejected
Defendants’ effort to dismiss the bulk of Plaintiffs’ claims as time barred. Id. at 538-39.
Following that earlier ruling, the Court granted Plaintiffs’ request to consolidate with this

case an additional action brought by San Diego. See ECF No. 209. Plaintiffs thereafter filed an
amended complaint, incorporating San Diego’s claims and correcting the inadvertent omission of
J.P. Morgan Securities LLC (“JPMorgan”) as one of Baltimore’s remarketing agents. See ECF
No. 210 (“Am. Compl.”). Defendants now move, pursuant to Rule 12(b)(6) of the Federal Rules
of Civil Procedure, to dismiss San Diego’s breach-of-fiduciary-duty claims and to dismiss
Baltimore’s fiduciary-duty claim against JPMorgan. ECF No. 231. Defendants also move to
dismiss most of San Diego’s claims as time barred. Id. For the reasons that follow, Defendants’
motion to dismiss is GRANTED in part and DENIED in part. In particular, the Court concludes
that San Diego’s breach-of-fiduciary-duty claims and Baltimore’s fiduciary-duty claim against
JPMorgan can and must be dismissed but Plaintiffs’ allegations of fraudulent concealment are

sufficient to reject Defendants’ timeliness arguments at this stage of the litigation.
BACKGROUND
The following facts, drawn from the Amended Consolidated Class Action Complaint
(“Amended Complaint”), are presumed to be true for purposes of this motion. See, e.g., Karmely
v. Wertheimer, 737 F.3d 197, 199 (2d Cir. 2013).
A. VRDOs and the Alleged Conspiracy
As recounted in this Court’s prior opinion, see City of Philadelphia, 498 F. Supp. 3d at
521-25, familiarity with which is presumed, VRDOs are a type of bond issued by municipalities
and other public or charitable entities, such as schools, hospitals, and community organizations,
to raise funds for operating expenses, infrastructure projects, and public services. Am. Compl.
¶¶ 2, 63. These bonds are issued on a long-term basis but have short-term interest rates that are
reset on a periodic basis, typically weekly. Id. ¶¶ 3, 64, 72-73. In order to attract investors,
VRDOs have a “built-in ‘put’ feature that allows investors to redeem the bond at any periodic

reset date at face value” (that is, at “par”) plus any accrued interest. Id. ¶ 3. That makes them a
“low-risk and high-liquidity investment.” Id.
To manage VRDOs, an issuer contracts with a bank to act as a remarketing agent
(“RMA”). Id. ¶ 4. An RMA typically has two primary responsibilities. First, on each reset date,
the RMAs are required to reset the VRDO’s interest rate at the lowest rate possible that would
permit the bond to trade at par. Id. Second, when an existing investor exercises the “put” option
on the bond, thereby tendering the bond to the RMA, the RMA is required to remarket the
VRDO to other investors at the lowest possible rate. Id. If the RMA cannot find another
investor for the VRDO, the obligation to purchase the tendered bond generally falls on a letter-
of-credit provider, frequently the RMA itself. Id. Importantly, if an RMA cannot deliver low

rates, the bond issuer has the right to replace the RMA with another one who can. Id. ¶ 5. Thus,
in a properly functioning market, RMAs compete against each other for issuers’ business by
actively working to set the best (that is, the lowest) possible rates for their customers. Id.
The gravamen of Plaintiffs’ claims is that Defendants — who together serve as RMAs for
the vast majority of the VRDO market, id. ¶ 69 — actively conspired not to compete against
each other in the market for remarketing services. Id. ¶ 96. Instead, beginning as early as
February 2008, they worked together to keep interest rates on VRDOs artificially high. Id. ¶ 97.
These inflated rates benefitted the Banks by helping to keep the VRDOs off their own books. Id.
¶ 109. They also benefitted money market funds (some of which were managed by the Banks)
that were the predominant holders of VRDOs. Id. ¶ 97. Absent this coordination, the Banks that
set higher rates than their competitors would have been at risk of losing their clients to those
competitors. Id. ¶ 103. Plaintiffs claim that, by engaging in this conspiracy, Defendants violated
Section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1, and breached their contractual and

fiduciary duties under different state laws. Id. ¶¶ 186-202.
B. The Original Consolidated Cases
At the outset, this case was comprised of two consolidated actions: one brought by
Philadelphia, 19-CV-1608 (JMF), and one brought by Baltimore, 19-CV-2667 (JMF). See City
of Philadelphia, 498 F. Supp. 3d at 521. Both cities are issuers of VRDOs that contracted
Defendants to act as their RMAs. See Am. Compl. ¶¶ 25-26. As noted, in November 2019, this
Court granted in part and denied in part Defendants’ motion to dismiss both cities’ claims. City
of Philadelphia, 498 F. Supp. 3d at 539. Specifically, the Court dismissed Philadelphia’s and
Baltimore’s breach-of-contract claims against a subset of Defendants who were not direct
counterparties to any remarketing agreement. Id. at 533-34, 539. The Court likewise dismissed

Philadelphia and Baltimore’s unjust-enrichment claims and breach-of-fiduciary-duty claims in
their entirety, with one exception: Baltimore’s fiduciary-duty claims against Citigroup Global
Markets, Inc. Id. at 534-39. In reaching that conclusion, the Court noted that Defendants had
“waived the argument” that Plaintiffs failed to plead the existence of a fiduciary relationship
“under Maryland law.” Id. at 535. The Court also declined to dismiss Philadelphia’s and
Baltimore’s federal antitrust claims and breach-of-contract claims against a subset of the
Defendants and rejected Defendants’ argument that the bulk of Philadelphia and Baltimore’s
claims were time barred. Id. at 532, 534-39. Following that ruling, the Court entered a Case
Management Plan and the parties commenced discovery. See ECF No. 153.
C. San Diego’s Action and the Amended Complaint
On June 2, 2021, San Diego filed a complaint asserting similar claims against the same
set of Banks. See No. 21-CV-4893 (JMF), ECF No. 1. In particular, San Diego’s initial
complaint alleged violations of the Sherman Act, California’s Cartwright Act and Unfair

Competition Law, and for breach of contractual and fiduciary duties. See id. ¶¶ 172-97.
Approximately two months later, Philadelphia and Baltimore moved to consolidate San Diego’s
action with their own and to file an Amended Complaint incorporating San Diego’s claims. See
ECF No. 203. Defendants did not oppose, but “reserve[d] their right to” “move against the
[amended] complaint on grounds not previously available.” ECF No. 208. On August 4, 2021,
the Court granted Plaintiffs’ motion and directed Plaintiffs to file a consolidated amended
complaint. See ECF No. 209.
Two primary changes to the operative pleadings are relevant here. First, the Amended
Complaint adds San Diego as a named plaintiff and incorporates San Diego’s claims for
violations of the Sherman Act, breach of contract, and breach of fiduciary duty. Am. Compl.

¶¶ 27-30, 84-87, 186-202. Notably, San Diego’s claims are based on “the same conduct on the
part of Defendants” as that originally alleged by Philadelphia and Baltimore. ECF No. 240
(“Pls.’ Opp’n”), at 4 (citing Am. Compl. ¶¶ 30, 84-87, 92-128, 187-90, 192-95, 197-202). The
fraudulent concealment allegations in the Amended Complaint are also identical to those in the
original Consolidated Class Action Complaint (“Original Complaint”). Compare Am. Compl.
¶¶ 168-75, with ECF No. 107 (“Compl.”), ¶¶ 163-70. Second, the Amended Complaint
“correct[s] an inadvertent drafting error” with respect to Baltimore’s claims: It replaces Morgan
Stanley with JPMorgan as the RMA counterparty for one of Baltimore’s VRDOs and eliminates
one of the at-issue VRDOs previously identified by Baltimore. Pls.’ Opp’n 7; compare Am.
Compl. ¶ 26, with Compl. ¶ 26.
Shortly after the Court granted Plaintiffs leave to file their Amended Complaint, the
parties filed a joint letter-motion requesting an extension of the fact discovery deadlines and

proposing a briefing schedule for Defendants’ anticipated motion to dismiss the Amended
Complaint. See ECF No. 212. The proposed briefing schedule provided that “Defendants
shall . . . file any single, omnibus motion to dismiss the operative complaint on grounds not
previously available.” Id. The Court adopted the parties’ proposed briefing schedule, ECF No.
213, and Defendants thereafter timely filed the instant motion to dismiss, ECF No. 231.
LEGAL STANDARDS
In evaluating a motion to dismiss pursuant to Rule 12(b)(6), a court must accept all facts
set forth in the complaint as true and draw all reasonable inferences in the plaintiff’s favor. See,
e.g., Burch v. Pioneer Credit Recovery, Inc., 551 F.3d 122, 124 (2d Cir. 2008). A claim will
survive a Rule 12(b)(6) motion, however, only if the plaintiff alleges facts sufficient “to state a

claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). A claim is facially plausible “when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). A plaintiff must
show “more than a sheer possibility that a defendant has acted unlawfully,” id., and cannot rely
on mere “labels and conclusions” to support a claim, Twombly, 550 U.S. at 555. If the plaintiff’s
pleadings “have not nudged [his or her] claims across the line from conceivable to plausible,
[the] complaint must be dismissed.” Id. at 570.
Generally, there is no heightened pleading standard in antitrust cases, and at the pleading
stage, the plaintiffs need only “raise a reasonable expectation that discovery will reveal evidence
of illegality.” Wacker v. JP Morgan Chase & Co., 678 F. App’x 27, 30 (2d. Cir. 2017)
(summary order) (quoting Mayor & City Council of Baltimore v. Citigroup, Inc., 709 F.3d 129,

135 (2d Cir. 2013)). That said, a plaintiff alleging fraudulent concealment for tolling purposes,
as Plaintiffs do here, must plead, though not prove, the fraud or mistake with particularity under
Rule 9(b) of the Federal Rules of Civil Procedure. See Armstrong v. McAlpin, 699 F.2d 79, 88-
89 (2d Cir. 1983); accord Zirvi v. Flatley, 838 F. App’x 582, 585 (2d Cir. 2020) (summary
order). That Rule requires that “[i]n alleging fraud or mistake, a party must state with
particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). As the
Second Circuit has explained, where a claim is subject to Rule 9(b), “the complaint must allege
the time, place, speaker, and sometimes even the content of the alleged misrepresentation.”
Ouaknine v. MacFarlane, 897 F.2d 75, 79 (2d Cir. 1990); accord FAT Brands Inc. v. PPMT
Cap. Advisors, Ltd., No. 19-CV-10497 (JMF), 2021 WL 37709, at *10 (S.D.N.Y. Jan. 5, 2021).

DISCUSSION
Defendants move to dismiss three portions of the Amended Complaint. First, they argue
that San Diego fails to state a claim for breach of fiduciary duty under California law. Second,
they contend that Baltimore likewise fails to state a fiduciary-duty claim against JPMorgan under
Maryland law. And, finally, they argue that the bulk of San Diego’s claims are time barred. See
ECF No. 232 (“Defs.’ Mem.”). The Court will address each argument in turn.
A. San Diego’s Breach-of-Fiduciary-Duty Claim
The Court begins with San Diego’s claim for breach of fiduciary duty, which is brought
against Defendants Barclays Capital, Inc.; Citigroup Global Markets Inc.; Goldman Sachs & Co
LLC; and J.P. Morgan Securities LLC (the “Fiduciary Defendants”). Defs.’ Mem. 3 n.1. The
parties agree that the claim is governed by California law, see Defs.’ Mem. 6 n.5; Pls.’ Opp’n 10-
13, which is “sufficient to establish choice of law,” Alphonse Hotel Corp. v. Tran, 828 F.3d 146,
152 (2d Cir. 2016). To state a claim, a plaintiff must allege (1) “the existence of a fiduciary

relationship,” (2) “breach of fiduciary duty,” and (3) “damages.” Oasis W. Realty, LLC v.
Goldman, 51 Cal. 4th 811, 820 (2011). “Before a person can be charged with a fiduciary
obligation, he must either knowingly undertake to act on behalf and for the benefit of another, or
must enter into a relationship which imposes that undertaking as a matter of law.” City of Hope
Nat’l Med. Ctr. v. Genentech, Inc., 43 Cal. 4th 375, 386 (2008) (cleaned up). An agency
relationship is one “example[]” of a relationship that imposes a fiduciary duty “as a matter of
law.” Id.; see also, e.g., Wolf v. Superior Ct., 107 Cal. App. 4th 25, 30 (Cal. Ct. App. 2003);
Michelson v. Hamada, 29 Cal. App. 4th 1566, 1579 (Cal. Ct. App. 1994) (“An agent is a
fiduciary.”).
Plaintiffs make two arguments in support of the existence of a fiduciary relationship

between the Fiduciary Defendants and San Diego. First, they argue that by “act[ing] as RMAs”
for San Diego, those Defendants “entered into agency relationships that subjected them to
fiduciary duties under . . . California law.” Pls.’ Opp’n 13. Second, they argue that “[t]he
Fiduciary Defendants’ conduct even apart from their contractual obligations further underscores
the fiduciary nature of their relationship with Plaintiffs.” Id. Neither argument is persuasive.
Beginning with the first, under California law, “[a]n agent is one who represents
another . . . in dealings with third persons.” Zimmerman v. Superior Ct., 220 Cal. App. 4th 389,
401 (Cal. Ct. App. 2013) (quoting Cal. Civ. Code § 2295). “One of the chief characteristics of
an agency relationship is the ‘authority to act for and in the place of the principal for the purpose
of bringing him or her into legal relations with third parties.’” DSU Aviation, LLC v. PCMT
Aviation, LLC, No. 07-1478 (SC), 2007 WL 3456564, at *5 (N.D. Cal. Nov. 14, 2007) (quoting
Violette v. Shoup, 16 Cal. App. 4th 611, 620 (Cal. Ct. App. 1993)); see also Garlock Sealing
Techs., LLC v. NAK Sealing Techs. Corp., 148 Cal. App. 4th 937, 964 (Cal. Ct. App. 2007).

“The other important aspect in determining the existence of an agency relationship is the degree
of control exercised by the principal over the activities of the agent.” DSU Aviation, LLC, 2007
WL 3456564, at *5. Additionally, for an agency relationship to arise, the agent must “manifest[]
assent or otherwise consent[]” to “act on the principal’s behalf and subject to the principal’s
control.” Huong Que, Inc. v. Luu, 150 Cal. App. 4th 400, 410-11 (Cal. Ct. App. 2007).
Applying the foregoing standards, the Court concludes that Plaintiffs fail to plausibly
allege an agency relationship between San Diego and the Fiduciary Defendants. For starters,
Plaintiffs do not allege that the Fiduciary Defendants “represent[]” San Diego in any “dealings
with third parties.” Zimmerman, 220 Cal. App. 4th at 401 (quoting Cal. Civ. Code § 2295).
Plaintiffs contend that “[t]he Fiduciary Defendants were to exercise best efforts to help Plaintiffs

remarket their bonds, and facilitate interactions with third-party investors.” Pls.’ Opp’n 15
(emphasis added). But the mere “facilitat[ion of] interactions” between San Diego and third
parties, Pls.’ Opp’n 15, does not amount to “act[ing] for and in the place of [San Diego] for the
purpose of bringing [it] into legal relations with third parties,” DSU Aviation, LLC, 2007 WL
3456564, at *5.2 And Plaintiffs cite no other allegations in the Amended Complaint to support

2 The same goes for Plaintiffs’ argument that the Fiduciary Defendants were “tasked with
. . . set[ting] VRDO rates at the lowest level to trade at par on behalf of issuers.” Pls.’ Opp’n 14.
That contractual obligation to San Diego does not give the Fiduciary Defendants authority to
represent San Diego “for the purpose of bringing [it] into legal relations with third parties.”
DSU Aviation, LLC, 2007 WL 3456564, at *5 (emphasis added).
the proposition that the Fiduciary Defendants had the power to represent San Diego vis-à-vis
third parties, let alone that the Fiduciary Defendants ever assented to act on San Diego’s behalf
in such dealings. See Pls.’ Opp’n 14-15. That dooms San Diego’s agency argument, as the
“power to alter the legal relations between the principal and third persons” is an “essential

characteristic[] of an agency relationship.” Garlock Sealing Techs., LLC, 148 Cal. App. 4th at
964; see Huong Que, Inc., 150 Cal. App. 4th at 410-11 (“An agent may be distinguished . . .
from a service provider who simply furnishes advice and does not interact with third parties as
the representative of the recipient of the advice.” (cleaned up)); see also, e.g., Qwest Commc’n v.
Herakles, LLC, No. 2:07-CV-00393 (MCE) (KJM), 2008 WL 3864620, at *5 (E.D. Cal. Aug. 19,
2008) (holding, at the motion to dismiss stage, that the plaintiff had “failed to allege that [the
defendant] had the power to alter legal relations between third parties and [the plaintiff],” and
thus had failed to adequately allege that the defendant was the plaintiff’s “agent and fiduciary”).
Making matters worse, Plaintiffs fail to allege that San Diego possessed sufficient control
over the Fiduciary Defendants’ activities. “The right to control, rather than its exercise, is

sufficient to meet this standard.” DSU Aviation, LLC, 2007 WL 3456564, at *5 (quoting In re
Coupon Clearing Serv., Inc., 113 F.3d 1091, 1099 (9th Cir. 1997)). Here, to demonstrate such
control, Plaintiffs rely exclusively on San Diego’s “right to remove the RMA at any time
pursuant to the contractual terms setting forth their duties.” Pls.’ Opp’n 14; see also Am. Compl.
¶ 5. But Plaintiffs do not cite, nor has the Court found, any cases that suggest the right to
terminate a contractual relationship at any time, without more, is sufficient to create an agency
relationship. See Pls.’ Opp’n 14.3 To the contrary, greater control over the putative agent’s

3 The one case that Plaintiffs cite in support of this argument, Michelson v. Hamada, 29
Cal. App. 4th at 1580, does not suggest otherwise. In that case, the California Court of Appeal
held that an agency relationship was evidenced by, among other things, the parties’ “written
activities is required — in addition to evidence that the agent has the power to represent the
principal in dealings with third parties. See, e.g., In re Coupon Clearing Serv., Inc., 113 F.3d at
1100 (holding “no agency relationship existed” under California law because the retailers’ “only
right of control with respect to [the putative agent] was to require [it] to perform its contracts”);

People v. JTH Tax, Inc., 212 Cal. App. 4th 1219, 1242 (Cal. Ct. App. 2013) (“It is the right to
control the means and manner in which the result is achieved that is significant in determining
whether a principal-agency relationship exists.” (cleaned up)). Moreover, as Plaintiffs
themselves emphasize, the Fiduciary Defendants were contractually obligated to “us[e] their
independent judgment” to set VRDO interest rates. Pls.’ Opp’n 14 (emphasis added); see also
Am. Compl. ¶ 84 (quoting one of San Diego’s remarketing agreements). That requirement cuts
against Plaintiffs’ claim that San Diego exercised sufficient control over its RMAs’ activities to
manifest an agency relationship. In short, because the key indicia of an agency relationship
under California law are conspicuously absent, the Court concludes that Plaintiffs fail to
plausibly allege such a relationship as the source of a fiduciary duty.4

agreements,” pursuant to which the defendant had agreed to “represent[] [the plaintiff] in
dealings with third persons, his patients”; the fact that the defendant “perform[ed] billing and
collection services” on his behalf; the fact that the defendant had “promised to keep available
full, true and accurate records and books of accounts showing [the plaintiff’s] billings and
collections”; and the fact that the plaintiff had the power to “fire” the defendant if he became
“dissatisfied with the servicing of his accounts.” Id. at 1580 (internal quotation marks omitted).
Tellingly, the California Supreme Court case on which Michelson relied mentioned the “right to
immediately discharge” as only one example of the principal’s control in that case, along with
the right to control various means used to carry out the objectives of the agency relationship.
Malloy v. Fong, 37 Cal. 2d 356, 370 (1951).

4 Plaintiffs’ reliance on the fact that the Fiduciary Defendants are referred to as
“remarketing agents” in the remarketing agreements, does not alter the Court’s conclusion. Pls.’
Opp’n 14. Plaintiffs point to no authority to support the proposition that a mere title —
particularly one that is a standard industry term — is sufficient to create an agency relationship.
Instead, California courts look to the functional indicia of agency discussed above.
Plaintiffs’ second argument — that, “even apart from their contractual obligations,” the
Fiduciary Defendants’ conduct “[c]onfirms [t]heir [f]iduciary [o]bligations to Plaintiffs,” Pls.’
Opp’n 13, 16 — similarly falls flat. To establish the existence of a fiduciary duty in the absence
of any relationship that would categorically impose such a duty “as a matter of law” (such as an

agency relationship), a plaintiff “must allege that [the defendant] . . . knowingly agreed to act on
behalf and for the benefit of [plaintiff].” World Surveillance Grp. Inc. v. La Jolla Cove Invs.,
Inc., 66 F. Supp. 3d 1233, 1235 (N.D. Cal. 2014); accord City of Hope, 43 Cal. 4th at 386. “The
obligation to put the interests of the other party first is why a fiduciary relationship generally
does not arise out of ordinary arms-length business dealings.” World Surveillance, 66 F. Supp.
3d at 1235.
Here, none of the conduct identified by Plaintiffs indicates that the Fiduciary Defendants
“knowingly agreed to act on behalf and for the benefit of” San Diego. Id.; see Pls.’ Opp’n 16-
17.5 The fact that the Fiduciary Defendants, for instance, “presented themselves to Plaintiffs as
being able to obtain the best rates through their investor networks”; “cloaked themselves with the

imprimatur of the Securities Industry Financial Markets Association”; “represented that they
were members of . . . the Financial Industry Regulatory Authority;” “provided certificates of
non-collusion”; and in some cases “acted as liquidity providers,” Pls.’ Opp’n 16-17, does not

5 As the Court noted in its prior opinion, any claim that the Fiduciary Defendants
knowingly assented to serve as San Diego’s fiduciaries by virtue of their agreement to serve as
RMAs is at odds with the Security and Exchange Commission’s public position that, generally
speaking, RMAs are not municipal advisors. See City of Philadelphia, 498 F. Supp. 3d at 536
(citing Registration of Municipal Advisors, 78 Fed. Reg. 67,468, 67,515 (Nov. 12,
2013) (codified at 17 C.F.R. pts. 200, 240, 249)). Additionally, Plaintiffs’ own use of “‘outside
advisers’ to regularly monitor their VRDOs, . . . undermin[es] any plausible inference that
Philadelphia was an inferior party” that placed trust in the Fiduciary Defendants. Id. at 535; see
Am. Compl. ¶ 174.
indicate the Fiduciary Defendants “knowingly agreed” “to act in [San Diego’s] best interest[s]
rather than in [their] own,” World Surveillance, 66 F. Supp. 3d at 1235. Nor does “impl[icitly]”
agreeing to “keep in confidence” certain information. Pls.’ Opp’n 16; see, e.g., Scognamillo v.
Credit Suisse First Bos. LLC, No. C03-2061 (TEH), 2005 WL 2045807, at *2 (N.D. Cal. Aug.

25, 2005) (“The mere fact that in the course of their business relationships the parties reposed
trust and confidence in each other does not impose any corresponding fiduciary duty.”), aff’d 254
F. App’x 669 (9th Cir. 2007). Instead, Plaintiffs’ allegations reveal a “mutually beneficial
arrangement” between “sophisticated parties of substantial bargaining power” — banks, on the
one hand, and municipal entities on the other. City of Hope, 43 Cal. 4th at 386, 389; see Am.
Compl. ¶¶ 25-30. Absent a factual basis to conclude the Fiduciary Defendants voluntarily
undertook to “act[] primarily for the benefit of [San Diego],” such an arrangement does not rise
to the level of a fiduciary relationship. City of Hope, 43 Cal. 4th at 386; see, e.g., id. at 386-89
(finding no fiduciary relationship between a medical research center and a company that had
entered into a “mutually beneficial” agreement where there was “no indication . . . that [the

company had] entered into it with the view of acting primarily for the benefit of [the research
center]”); World Surveillance, 66 F. Supp. 3d at 1235-36 (same where “the transactions
described in the amended complaint” were “arms-length business dealings”).
Finally, Plaintiffs’ contention that the existence of an agency or fiduciary relationship is
“generally . . . a question of fact” and thus ill-suited for resolution on a motion to dismiss, Pls.’
Opp’n 15, 17-18, does not save San Diego’s claim. Courts routinely rule on whether a plaintiff
has plausibly alleged an agency or fiduciary relationship under California law at the motion to
dismiss stage, taking all facts alleged in the operative complaint as true and drawing all
inferences in favor of the plaintiff. See, e.g., Akins v. Seterus, Inc., No. 2:16-CV-01656 (TLN)
(KJN), 2019 WL 4243221, at *4-5 (E.D. Cal. Sept. 6, 2019); World Surveillance, 66 F. Supp. 3d
at 1236; Scognamillo, 2005 WL 2045807, at *4; Cruz v. United States, 219 F. Supp. 2d 1027,
1039 (N.D. Cal. 2002). Plaintiffs are even more off base in suggesting that Defendants must
demonstrate “that Plaintiffs ‘can prove no set of facts entitling [them] to relief on a breach of

fiduciary theory.’” Pls.’ Opp’n 18 (quoting Negrete v. Fid. & Guar. Life Ins. Co., 444 F. Supp.
2d 998, 1004 (C.D. Cal. 2006)). That pleading standard, which comes from Conley v. Gibson,
355 U.S. 41, 47 (1957), was “retir[ed]” over a decade ago by Twombly and Iqbal. E.E.O.C. v.
Port Auth. of N.Y. & N.J., 768 F.3d 247, 253 (2d Cir. 2014). In short, because Plaintiffs do not
plausibly allege facts that would give rise to a fiduciary relationship between San Diego and the
Fiduciary Defendants, San Diego’s fiduciary-duty claims fail as a matter of law and must be
dismissed.6
B. Baltimore’s Breach-of-Fiduciary-Duty Claim
Next, the Court turns to Baltimore’s fiduciary-duty claim against JPMorgan. Plaintiffs
raise two threshold arguments that warrant brief discussion at the outset. First, they argue that

the “Court’s prior ruling on Defendants’ motion to dismiss Baltimore’s fiduciary duty claim
constitutes the ‘law of the case’” and should not be revisited. Pls.’ Opp’n 5. “The law of the
case doctrine commands that ‘when a court has ruled on an issue, that decision should generally

6 The parties spill much ink comparing California and Pennsylvania law governing
fiduciary-duty claims in an effort to leverage or distinguish, as the case may be, the Court’s prior
decision dismissing Philadelphia’s breach-of-fiduciary-duty claim. See Defs.’ Mem. 6-8; Pls.’
Opp’n 10-13; ECF No. 243 (“Defs.’ Reply”), at 1-3. In particular, the parties dispute whether
California has an analogue to Pennsylvania’s “gist of the action doctrine,” which bars fiduciary-
duty claims that “essentially duplicate[] a breach of contract claim.” City of Philadelphia, 498 F.
Supp. 3d at 535-36 (internal quotation marks omitted); see Pls.’ Opp’n 10; Defs.’ Reply 2. In
light of the Court’s conclusion that Plaintiffs fail to allege the existence of a fiduciary
relationship between San Diego and the Fiduciary Defendants, the Court need not and does not
resolve the issue.
be adhered to by that court in subsequent stages in the same case’ unless ‘cogent and compelling
reasons militate otherwise.’” Johnson v. Holder, 564 F.3d 95, 99 (2d Cir. 2009) (quoting United
States v. Quintieri, 306 F.3d 1217, 1225 (2d Cir. 2002). But where, as here, a plaintiff has filed
an amended complaint following an earlier ruling, the law of the case doctrine does not apply “to

the extent that [the p]laintiff has offered new claims or factual allegations.” Weslowski v.
Zugibe, 96 F. Supp. 3d 308, 316-17 (S.D.N.Y.), aff’d, 626 F. App’x 20 (2d Cir. 2015) (summary
order). Indeed, a court cannot be said to have “ruled on” an issue if the issue is presented for the
first time in an amended complaint. Johnson, 564 F.3d at 99. That inherent limitation to the law
of the case doctrine is dispositive here. The Amended Complaint includes a new factual
allegation that is central to Baltimore’s fiduciary duty claim against JPMorgan: It alleges for the
first time that Baltimore contracted with JPMorgan to serve as the RMA for one of its VRDOs.
Compare Am. Compl. ¶ 26, with Compl. ¶ 26. More specifically, the Amended Complaint
substitutes JPMorgan for Morgan Stanley as the RMA counterparty for Baltimore’s Series 1986
issuance. See id. According to Plaintiffs, they made this change in order to “correct[] an

inadvertent drafting error.” Pls.’ Opp’n 7. Regardless of the reason, however, this new
allegation renders the law of the case doctrine inapplicable to Baltimore’s breach of fiduciary
duty claim against JPMorgan in its capacity as Baltimore’s RMA. See, e.g., Weslowski, 96 F.
Supp. 3d at 316-17.7
Second, Plaintiffs contend that the argument JPMorgan seeks to make was “previously
available to all Defendants when making their first motion to dismiss” but not raised and, as

7 In any event, “the law of the case doctrine is discretionary and does not limit a court’s
power to reconsider its own decisions prior to final judgment.” Aramony v. United Way of Am.,
254 F.3d 403, 410 (2d Cir. 2001).
such, JPMorgan’s “attempt to raise [it] now contravenes this Court’s [August 12, 2021
Scheduling] Order.” Pls.’ Opp’n 5 (citing ECF No. 213). The Court disagrees. In its
Scheduling Order, the Court adopted the parties’ proposal that Defendants be permitted to “file
any . . . motion to dismiss the [Amended Complaint] on grounds not previously available.” ECF

No. 213. The Court will not construe this language so narrowly as to bar JPMorgan from raising
an argument that it had no reason to make in its first motion to dismiss. After all, Baltimore
added allegations identifying JPMorgan as an RMA for one of its VRDOs for the first time in the
Amended Complaint. Compare Am. Compl. ¶ 26, with Compl. ¶26; see also City of
Philadelphia, 498 F. Supp. 3d at 534 (dismissing “Plaintiffs’ claims against the Non-
Counterparty Defendants” (i.e., Defendants that had not entered into remarketing agreements
with Plaintiffs) “because, conclusory allegations aside, the Complaint [did] not adequately allege
that Plaintiffs were in any fiduciary or confidential relationship with any of them”). The Court
will therefore consider JPMorgan’s challenge to Baltimore’s fiduciary-duty claim.
Baltimore’s claim is governed, the parties agree, by Maryland law (although, as will be

seen, there is substantial similarity between that law and California law). See Defs.’ Mem. 10-
12; Pls.’ Opp’n 4, 7-9, 13-18. “To establish a breach of fiduciary duty as an independent cause
of action” under Maryland law, “a plaintiff must show: (i) the existence of a fiduciary
relationship; (ii) breach of the duty owed by the fiduciary to the beneficiary; and (iii) harm to the
beneficiary.” Plank v. Cherneski, 469 Md. 548, 599 (2020) (internal quotation marks omitted).
“A fiduciary relationship, . . . involves a duty on the part of the fiduciary to act for the benefit of
the other party to the relation as to matters within the scope of the relation.” Buxton v. Buxton,
363 Md. 634, 654 (2001). This feature “distinguish[es]” fiduciary relationships from “merely
confidential relation[s],” which “exist[] between two persons when one has gained the
confidence of the other and purports to act or advise with the other’s interest in mind.” Id. Thus,
although the terms are sometimes used “interchangeably” by Maryland courts, Maryland’s
highest court, the Court of Appeals, has made clear that even where “[a] confidential relation
may exist,” “there [may be] no fiduciary relation.” Id. at 654-55. “Well-known examples of

habitual or categorical fiduciary relationships include those between . . . agents and principals.”
Plank, 469 Md. at 598.8
For reasons similar to those articulated above with respect to San Diego’s claim, the
Court concludes that Baltimore fails to plausibly allege the existence of a fiduciary relationship
under Maryland law. To begin, Baltimore fails to plausibly plead that JPMorgan was
Baltimore’s agent. “[T]he creation of [an] agency relationship” requires “some manifestation or
indication by the principal to the agent that he consents to the agent’s acting for his benefit;
and . . . consent by the agent to act for the principal.” Green v. H & R Block, Inc., 355 Md. 488,
505 (1999); accord Broadway Servs., Inc. v. Comptroller of Maryland, 478 Md. 200, 216 (2022).
“[T]hree [additional] characteristics . . . hav[e] particular relevance to the determination of the

existence of a principal-agent relationship: (1) the agent’s power to alter the legal relations of the
principal; (2) the agent’s duty to act primarily for the benefit of the principal; and (3) the

8 As they did with respect to California law, Plaintiffs point out that, “[n]ormally, the
determination of whether a fiduciary relationship exists between two individuals is a question of
fact” under Maryland law. McElwee v. Williams, 2020 WL 6748799, at *3 (Md. Ct. Spec. App.
Nov. 17, 2020); see Pls.’ Opp’n 15. But, as was the case with California law, courts can and do
regularly rule on the sufficiency of fiduciary-duty allegations under Maryland law at the motion
to dismiss stage. See, e.g., Nix v. NASA Fed. Credit Union, 200 F. Supp. 3d 578, 591 (D. Md.
2016) (granting a motion to dismiss a breach-of-fiduciary-duty claim under Maryland law on the
ground that the plaintiff had failed to plausibly allege “the existence of a fiduciary relationship”);
Shahin v. Delaware Fed. Credit Union, 602 F. App’x 50, 53 (3d Cir. 2015) (unpublished
opinion) (affirming the dismissal of a breach-of-fiduciary-duty claim under Maryland law
because the plaintiff had “failed to properly plead her breach of fiduciary duty claim” and, more
specifically, had failed to allege a “fiduciary relationship”).
principal’s right to control the agent.” Green, 355 Md. at 503. As discussed in detail above,
Plaintiffs fail to plausibly allege that the Fiduciary Defendants, including JPMorgan,
“consent[ed] . . . to act for” Baltimore, let alone consented to act “primarily for the benefit of”
Baltimore. Id. at 503, 505-06; see Pls.’ Opp’n 13-15. Plaintiffs also fail to identify any

allegations indicating that JPMorgan had the “power to alter the legal relations” of Baltimore in
dealings with third parties. Green, 355 Md. at 503; see Pls.’ Opp’n 13-15. And, although
Maryland law appears to be somewhat less demanding than California law when it comes to the
degree of control a principal must exercise over its agent to support an agency relationship, see
Green, 355 Md. at 507-10; Broadway Servs., 478 Md. at 224-25, Plaintiffs cite, and the Court
has found, no authority indicating that Baltimore’s “right to remove [JPMorgan as its] RMA at
any time pursuant to the contractual terms” is sufficient, without more, to create an agency
relationship under Maryland law. Pls.’ Opp’n 14.
Plaintiffs likewise fail to plausibly allege that a fiduciary duty existed in the absence of
an agency relationship. Although the term fiduciary duty is “not clearly defined [in] Maryland

case law,” and in fact may have been left “deliberately vague to avoid a too narrow definition,”
Travel Comm., Inc. v. Pan Am. World Airways, Inc., 91 Md. App. 123, 161-62 (1992), the
Maryland Court of Appeals has made clear that it necessarily “involves a duty on the part of the
fiduciary to act for the benefit of the other party to the relation as to matters within the scope of
the relation,” Buxton, 363 Md. at 654; see also Broadway Servs., 478 Md. at 221 (“[A]
fiduciary . . . is[] a person having a duty, created by his or her undertaking, to act primarily for
the benefit of another in matters connected with his or her undertaking.” (cleaned up));
MacDonald v. Patriot, LLC, 2017 WL 1788115, at *10 (Md. Ct. Spec. App. May 5, 2017) (“A
fiduciary relationship is one in which one party must act for the other’s benefit concerning
matters within the scope of the relationship.”). As detailed above, Plaintiffs fail to plausibly
allege that JPMorgan “undert[ook]” to “act primarily for the benefit of” Baltimore as its RMA.
Broadway Servs., 478 Md. at 221. Moreover, as the Court noted in its prior opinion, the fact that
Plaintiffs “consulted their own outside advisers to regularly monitor their VRDOs, undermin[es]

any plausible inference that” they were “inferior part[ies]” who placed trust and confidence in
their RMAs’ advice. City of Philadelphia v. Bank of Am. Corp., 498 F. Supp. 3d 516, 535
(S.D.N.Y. 2020) (internal quotation marks omitted); see Am. Compl. ¶ 174; cf. Brass Metal
Prod., Inc. v. E-J Enters., Inc., 189 Md. App. 310, 357 (2009) (“The fact that one businessman
trusts another and relies on another to perform a contract does not give rise to a confidential
relationship[.]”). Nor do Plaintiffs identify any authority recognizing RMAs as fiduciaries under
Maryland law. See Pls. Opp’n 7-9, 15-18. In short, Plaintiffs fail to plausibly allege the
existence of a fiduciary relationship between Baltimore and JPMorgan and, thus, fail to state a
claim for breach of fiduciary duty as a matter of law.
C. The Timeliness of San Diego’s Claims

Finally, Defendants move to dismiss the bulk of San Diego’s claims as time barred. See
Defs.’ Mem. 12-17. More specifically, they contend that San Diego’s breach-of-contract and
fiduciary-duty claims, as well as San Diego’s antitrust claim based on conduct prior to February
21, 2015, are untimely because the “California Attorney General was required to provide [San
Diego] with notice of a qui tam action making similar allegations . . . no later than August 2014.”
Id. at 2, 17. According to Defendants, the 2014 qui tam complaint — of which the Court may
take judicial notice, see Glob. Network Commc’ns, Inc. v. City of New York, 458 F.3d 150, 157
(2d Cir. 2006) (“A court may take judicial notice of a document filed in another court not for the
truth of the matters asserted in the other litigation, but rather to establish the fact of such
litigation and related filings.”) — “set[] forth theories of liability . . . similar enough to those
alleged in this case to put any diligent party on inquiry notice (if not actual notice) of its claims.”
Defs.’ Mem. 13.9 It follows, they argue, that tolling for fraudulent concealment is unavailable.
The Court is not persuaded. “In every relevant jurisdiction,” including California, “the

statute of limitations is tolled where a plaintiff shows that a defendant committed fraudulent acts
intended to conceal its misconduct and that the plaintiff’s ignorance of the concealed misconduct
was not a product of its own lack of reasonable diligence.” Alaska Elec. Pension Fund v. Bank
of Am. Corp., 175 F. Supp. 3d 44, 66 (S.D.N.Y. 2016) (collecting cases); see also Platt Elec.
Supply, Inc. v. EOFF Elec., Inc., 522 F.3d 1049, 1055 (9th Cir. 2008) (applying California law).
In resolving Defendants’ first motion to dismiss, the Court held — based on an identical set of
pleadings regarding fraudulent tolling — that Plaintiffs had “plausibly allege[d] that Defendants
concealed their conspiracy.” City of Philadelphia, 498 F. Supp. 3d at 538; compare Am. Compl.
¶¶ 168-75, with Compl. ¶¶ 163-70. More specifically, the Court rejected an argument almost
identical to the one Defendants press here — namely, that “Plaintiffs were put on notice of

Defendants’ misdeeds when qui tam suits concerning Defendants’ remarketing practices were
filed under seal in state courts in Illinois and Massachusetts in 2014.” City of Philadelphia, 498
F. Supp. 3d at 538. As the Court explained: “[S]eparate and apart from the fact that these

9 After briefing on this motion was complete, Defendants filed a supplemental letter
notifying the Court that records it had received from the California Attorney General’s Office in
response to a subpoena “demonstrate that the California Attorney General provided notice of the
[2104 qui tam complaint] to [San Diego]” via letter on December 30, 2014. ECF No. 289
(“Defs.’ Ltr.”), at 1. Defendants contend that these documents are judicially noticeable as
government records whose “accuracy cannot reasonably be questioned.” Defs.’ Ltr. 2. But see
ECF No. 291 (Plaintiffs’ response, arguing that the letter failed to provide sufficient notice). The
Court need not and does not decide whether that is the case, however, because, for the reasons
that follow, the new records would not alter the Court’s conclusion that Plaintiffs plausibly
allege fraudulent concealment at this stage in the case.
complaints were under seal and thus unavailable for Plaintiffs’ review, requiring Plaintiffs, ‘at
the motion to dismiss stage, to make a showing of reasonable diligence’ would be ‘premature.’”
Id. at 538-39 (quoting BPP Ill., LLC v. Royal Bank of Scot. Grp. PLC, 603 F. App’x 57, 59 (2d
Cir. 2015) (summary order)); see also Alaska Elec. Pension Fund, 175 F. Supp. 3d at 67.

That conclusion applies with equal force here. In any event, even assuming arguendo
that San Diego had notice of the 2014 California qui tam complaint (the “CFCA Complaint”),
the Court cannot conclude, based on that fact alone, that Plaintiffs were on notice of the
misconduct alleged in this case. The CFCA Complaint alleges that banks serving as remarketing
agents for VRDOs issued by various California governmental entities “engaged in a ‘robo-
resetting’ scheme where they mechanically set the rates en masse without any consideration of
the individual characteristics of the bonds or the associated market conditions or investor
demand.” ECF No. 233-1 (“CFCA Compl.”), ¶ 2; see also id. ¶¶ 37-41. That conduct, the
CFCA Complaint alleges, violated the banks’ obligation to “actively and individually market and
price [the VRDOs] at the lowest possible interest rates.” Id. ¶¶ 2-3, 37. Critically, the CFCA

Complaint does not allege any collusion on the part of the defendant banks in setting VRDO
interest rates.10 See id. ¶¶ 1-7, 141-47. Nor does it bring any antitrust, breach of contract, or
fiduciary-duty claims. See id. ¶¶ 141-47. Instead, it brings claims exclusively under the

10 Defendants’ claim that the CFCA Complaint “implied that the defendants’ rate-setting
conduct was the product of a ‘conspiracy, contract or agreement’ between remarketing agents at
different banks,” is belied by the pleadings. Defs.’ Reply 8 (citing CFCA Compl. 31); see also
Defs.’ Mem. 5. The only mention of any “conspiracy” or “agreement” between defendants in the
CFCA Complaint is contained in a boilerplate request for relief “[e]njoining and restraining
defendants from engaging in any conduct, conspiracy, contract or agreement, and from adopting
or following any practice, plan, program, scheme, artifice or device similar to, or having a
purpose and effect similar to, the conduct complained of above.” CFCA Compl. 31. That
language does not allege, or even “impl[y],” that the defendants were in fact engaged in a
conspiracy regarding VRDO rate-setting. Defs.’ Reply 8.
California False Claims Act based on the defendant banks’ individual use of “robo-setting” to set
VRDO rates. Id. ¶ 37. By contrast, the pleadings in the Amended Complaint center on
Defendants’ alleged conspiracy “to inflate the interest rates for” VRDOs. Am. Compl. ¶ 1; see
also id. ¶ 9 (alleging “direct communications between competing banks concerning VRDO rate-

setting”); id. ¶¶ 96-128 (“Defendants’ collusion ran from the top to the bottom of their VRDO
operations — from the senior personnel in Defendants’ Municipal Securities Groups, to the
remarketing desks sitting below those groups, to the personnel on Defendants’ sales desks.”
(emphasis added)). The lack of allegations in the CFCA Complaint regarding the central claims
in the Amended Complaint here is fatal to Defendants’ argument. Drawing all inferences in
Plaintiffs’ favor, the Court cannot conclude on this record that San Diego’s “continuing
ignorance [of Defendants’ misconduct was] attributable to lack of diligence on [San Diego’s]
part” based solely on the CFCA Complaint (assuming San Diego even received notice of it).
State of N.Y. v. Hendrickson Bros., Inc., 840 F.2d 1065, 1083 (2d Cir. 1988); cf. Ezra Charitable
Tr. v. Frontier Ins. Grp., Inc., No. 00-CV-5361 (LMM), 2002 WL 87723, at *4-5 (S.D.N.Y. Jan.

23, 2002) (holding that the plaintiffs who brought suit under the Securities Exchange Act of 1934
had inquiry notice where another Exchange Act action had been filed by “some of the same
plaintiffs’ lawyers” and “relied on many of the same documents as plaintiffs in the current
litigation”), aff’d sub nom. LC Cap. Partners, LP v. Frontier Ins. Grp., Inc., 318 F.3d 148 (2d
Cir. 2003).
That is not to say there is no overlap between the two Complaints. For example, two of
the VRDOs issued by San Diego and identified in the Amended Complaint are referenced in the
CFCA Complaint. See Am. Compl. ¶ 30 (listing CUSIP numbers 797400FF0 and 797400FH6);
CFCA Compl. 36, 69 (same). The two complaints also include similar allegations regarding the
“artificially high” interest rates that resulted from the alleged misconduct, Am. Compl. 97;
CFCA Compl. § 116, and the banks’ failure to “giv[e] individual attention to resetting” VRDO
rates, Am. Compl. § 160, CFCA Compl. §§ 37-38. But, as noted, the Amended Complaint
alleges that these inflated rates were the result of an alleged “conspiracy,” whereas the CFCA
Complaint alleges that they resulted from defendants’ use of “robo-setting.” Am. Compl. § 97;
CFCA Compl. § 116. And while the banks’ failure to reset VRDO rates on an individual basis
plays, at best, a minor role in the Amended Complaint, it is the central allegation in the CFCA
Complaint. See Am. Compl. 159-61; CFCA Compl. Jf 1-7, 31-38. Given the limited
substantive overlap between the two complaints, and that the Court must draw all reasonable
inferences in Plaintiffs’ favor at this stage in the litigation, the Court cannot conclude that
Plaintiffs fail to plausibly allege reasonable due diligence, even assuming (without deciding) that
they were on notice of the CFCA Complaint in 2014. As the Court said in its earlier ruling,
“Defendants’ argument may win another day, but it does not provide a basis for dismissal at this
stage of the litigation.” City of Philadelphia, 498 F. Supp. 3d at 539.
CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss is GRANTED in part and
DENIED in part. In particular, Defendants’ motion to dismiss San Diego’s breach-of-fiduciary-
duty claim in its entirety and Baltimore’s fiduciary-duty claim against JPMorgan is GRANTED.
Defendants’ motion to dismiss the bulk of San Diego’s claims as time barred, however, is
DENIED. The Clerk of Court is directed to terminate ECF No. 231.

SO ORDERED.
Dated: June 28, 2022
New York, New York SSE RMAN
ited States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10342286. Public record. Not legal advice.