Nypl v. JP Morgan Chase & Co.

USONUITTEHDE RSTNA DTIESST RDIICSTT ROIFC TN ECWOU YROTR K

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:

JOHN NYPL, et al., :

Plaintiffs, :

: 15 Civ. 9300 (LGS)

-against- :

: OPINION AND ORDER

JP MORGAN CHASE & CO., et al., :

Defendants. :

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LORNA G. SCHOFIELD, District Judge:

This case concerns the impact of an alleged conspiracy among banks to fix prices in the

foreign exchange (“FX”) market on consumers’ purchases of euros with U.S. Dollars within the

United States. Defendants JP Morgan Chase & Co. and JPMorgan Chase Bank, N.A.

(individually or together, “JPMC”); Defendants Citibank, N.A., Citicorp, and Citigroup, Inc.

(collectively, “Citi”); Defendants Barclays Capital, Inc. and Barclays PLC (collectively,

“Barclays”); and Defendants Bank of America, N.A.; Bank of America Corporation; HSBC Bank

(USA), N.A.; HSBC North American Holdings Inc.; Royal Bank of Scotland, plc (“RBS”) and

UBS AG (“UBS”) move for summary judgment on Plaintiffs’ remaining claims. For the reasons

below, Defendants’ motion is granted.

I. BACKGROUND

Familiarity with the underlying facts and procedural history is assumed. See Nypl v. JP

Morgan Chase & Co., No. 15 Civ. 9300, 2022 WL 819771 (S.D.N.Y. Mar. 18, 2022) (denying

Plaintiffs’ motion for class certification, granting in part Defendants’ Daubert motion and

denying Plaintiffs’ Daubert motion); Nypl v. JPMorgan Chase & Co., No. 15 Civ. 9300, 2017

WL 3309759 (S.D.N.Y. Aug. 3, 2017) (granting in part Plaintiffs’ motion for leave to file the

Third Amended Complaint); Nypl v. JPMorgan Chase & Co., No. 15 Civ. 9300, 2018 WL

1276869 (S.D.N.Y. Mar. 12, 2018) (denying Defendants’ motion to dismiss the Third Amended

Complaint and granting in part Defendants’ motion to limit the time period for Plaintiffs’ claims).

The following facts are drawn from the parties’ Rule 56.1 statements and other submissions on

this motion. The facts are undisputed or based on record evidence drawing all reasonable

inferences in favor of Plaintiffs as the non-moving parties. See N.Y. State Teamsters Conf.

Pension & Ret. Fund v. C & S Wholesale Grocers, Inc., 24 F.4th 163, 170 (2d Cir. 2022).

In short, Plaintiffs allege that they purchased euros at manipulated rates from Defendants

in the consumer retail market. Because Plaintiffs’ pleadings did not provide notice that any

Plaintiff sought to recover for credit, debit, wire or other non-physical currency transactions or

any transactions made abroad, Plaintiffs’ claims are limited to transactions “involving foreign

currency purchased with U.S. Dollars and physically received at Defendants’ retail branches

within the United States.” Order dated Sept. 6, 2018, at 1, 4 (Dkt. No. 349). These transactions

are referred to below as “qualifying transactions” or “qualifying purchases.”

Plaintiffs allege that Defendants conspired to manipulate exchange rates in the FX spot

market that then were used to calculate the prices charged to retail customers. Plaintiffs base this

allegation on plea agreements and regulatory orders involving certain Defendants. Those plea

agreements and the allegations in Plaintiffs’ Third Amended Complaint (“TAC”) focus on two

benchmarks: the WMR London closing fix (“the WMR fix”) and the European Central Bank fix

(the “ECB fix”). Plaintiffs also now assert that those plea agreements and other documents show

that Defendants conspired to manipulate “market prices generally” and to widen bid/ask spreads.

II. STANDARD

Summary judgment is appropriate where the record establishes that “there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). “An issue of fact is genuine if the evidence is such that a reasonable [finder of fact]

could return a verdict for a nonmoving party.” Frost v. N.Y.C. Police Dep’t, 980 F.3d 231, 242

(2d Cir. 2020) (quoting SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir.

2009)). “Only disputes over facts that might affect the outcome of the suit under the governing

law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby Inc., 477

U.S. 242, 248 (1986); accord Saleem v. Corp. Transp. Grp., 854 F.3d 131, 148 (2d Cir. 2017). In

evaluating a motion for summary judgment, a court must “construe the record evidence in the

light most favorable to the non-moving party and draw all reasonable inferences in its favor.”

Torcivia v. Suffolk Cty., 17 F.4th 342, 354 (2d Cir. 2021). When the movant properly supports its

motion with evidentiary materials, the opposing party must establish a genuine issue of fact by

citing to particular parts of materials in the record. See Fed. R. Civ. P. 56(c)(1)(A). “A party

opposing summary judgment normally does not show the existence of a genuine issue of fact to

be tried merely by making assertions that are based on speculation or are conclusory.”

S. Katzman Produce Inc. v. Yadid, 999 F.3d 867, 877 (2d Cir. 2021).

III. DISCUSSION

A. Federal Claims

“The three required elements of an antitrust claim are (1) a violation of antitrust law; (2)

injury and causation; and (3) damages.” Cordes & Co. Fin. Servs., Inc. v. A.G. Edwards & Sons,

Inc., 502 F.3d 91, 105 (2d Cir. 2007) (cleaned up); accord In re Namenda Indirect Purchaser

Antitrust Litig., 338 F.R.D. 527, 550 (S.D.N.Y. 2021). Defendants’ motion for summary

judgment is granted because, based on the record evidence, no reasonable jury could find that the

alleged conspiracy caused injury to Plaintiffs. It is therefore unnecessary to reach the question of

whether any injury suffered by Plaintiffs is sufficient to confer antitrust standing. See Laydon v.

Coöperatieve Rabobank U.A., 55 F.4th 86, 98 (2d Cir. 2022) (discussing requirements of antitrust

standing).

1. Plaintiffs Nypl and Rubinsohn

Defendants are granted summary judgment on Nypl and Rubinsohn’s claims because no

reasonable jury could find that either Plaintiff made a qualifying transaction. It is undisputed that

neither Nypl nor Rubinsohn physically received euros purchased with U.S. dollars at one of

Defendants’ branches in the U.S. Plaintiffs quibble over the definition of “purchase” and cite

generally to Nypl and Rubinsohn’s deposition transcripts without identifying any evidence that

Nypl or Rubinsohn actually made a physical purchase in any U.S. branch of any Defendant bank.

While courts need not go “hunting for truffles buried in . . . the record,” a review of the portions

of the transcripts submitted with Plaintiffs’ motion papers reveals no such evidence. See Westcon

Grp., Inc. v. CCC Techs., Inc., No. 19 Civ. 2303, 2022 WL 4134578, at *3 (S.D.N.Y. Sept. 12,

2022) (“Judges are not like pigs, hunting for truffles buried in briefs or the record.” (internal

quotation marks omitted)); see also 725 Eatery Corp. v. City of New York, 408 F. Supp. 3d 424,

456 (S.D.N.Y. 2019) (“Absent additional specificity from Plaintiffs, this Court declines the

invitation to sift through the record to divine what facts Plaintiffs seek to establish.”). Thus,

Plaintiffs have not raised a triable issue of fact as to either Nypl or Rubinsohn’s claims.

Plaintiffs also argue that the Court erred in its Order more than four years ago limiting

Plaintiffs’ claims to those pleaded, i.e., to purchases of physical euros at a U.S. branch. Plaintiffs

have not identified a basis for an untimely request for reconsideration or relief from that prior

Order. See S.D.N.Y. Local Rule 6.3 (requiring that a motion for reconsideration or reargument

be served within fourteen days after entry of an order); Fed. R. Civ. P. 60(b)-(c) (requiring

motions for relief from an order based on, e.g., “mistake,” “newly discovered evidence,” or any

“fraud” or “misrepresentation” to be filed within one year). In any event, Plaintiffs’ arguments

mischaracterize the basis for that decision. The limitation of Plaintiffs’ claims to physical

purchases was based on analysis of what claims fairly are encompassed by Plaintiffs’ allegations,

not on any representations by Defendants.

2. Plaintiffs McCarthy, Mad Travel, Jolly and Go Everywhere, Inc.

Defendants are granted summary judgment on the claims of McCarthy and Jolly, and their

respective businesses Mad Travel and Go Everywhere, Inc., because no reasonable jury could

find that they made any of their transactions at supracompetitive prices. Unlike Nypl and

Rubinsohn, Plaintiffs McCarthy and Jolly testified that they purchased physical euros with U.S.

dollars at U.S. branches of one of the Defendant banks, JPMC, on their own behalf and on behalf

of their respective businesses. McCarthy made qualifying purchases “on occasion” but does not

recall when or how often, nor does she have receipts. Jolly made qualifying purchases several

times per year, though she has receipts for purchases only on four specific days. Defendants’

motion is granted because there is no evidence in the record that the prices Plaintiffs paid on

those days -- or on any particular day that they might have traded, whether supported by

documentation or not -- were inflated by the alleged conspiracy and thereby caused any injury to

Plaintiffs.1

a. Evidence of Antitrust Violation and Damages

In opposition to Defendants’ motion, Plaintiffs continue to rely heavily on certain guilty

pleas and other orders issued in regulatory proceedings. Several Defendants pleaded guilty to

engaging in -- and/or were found by regulatory agencies to have engaged in -- a conspiracy to

1 Defendants argue at length that McCarthy and Jolly lack documentation to show that they made

specific transactions on specific days, such as receipts. To be clear, such documentary evidence

is not required to survive summary judgment, nor would it necessarily be required at trial.

Plaintiffs could proffer other evidence of when they made certain transactions, such as their own

testimony. However, the record shows that no such evidence could be offered at trial, since

Plaintiffs do not recall any qualifying transactions other than those for which Jolly has receipts.

Therefore, and for the reasons that follow, no reasonable jury could find by a preponderance of

manipulate benchmark rates and other aspects of FX spot market pricing. Pursuant to 15 U.S.C.

§ 16, final judgments in government antitrust enforcement actions are “prima facie evidence”

against the defendant in later civil cases “as to all matters respecting which said judgment or

decree would be an estoppel as between the parties thereto.” Whether under ordinary equitable

estoppel principles or § 16, the guilty pleas and regulatory orders may create a triable issue of fact

on one or more of the elements of Plaintiffs’ claims. But even so, and even assuming that all of

the Plaintiffs’ documentary evidence is admissible at trial, the pleas and orders are insufficient to

survive summary judgment on the injury element.

Plaintiffs argue at length that they have established an antitrust violation and that they

need not prove damages with specificity at this stage. For instance, it can be assumed that certain

Defendants’ admissions to engaging in an antitrust conspiracy establish the first element of

Plaintiffs’ claims -- i.e., that those Defendants committed an “antitrust violation” on each day that

the conspiracy existed, including the days McCarthy and Jolly bought euros. See, e.g., Smith v.

United States, 568 U.S. 106, 111 (2013) (“Since conspiracy is a continuing offense, a defendant

who has joined a conspiracy continues to violate the law through every moment of the

conspiracy’s existence.” (cleaned up)); United States v. Socony-Vacuum Oil. Co., 310 U.S. 150,

227 (1940) (“A conspiracy thus continued is in effect renewed during each day of its

continuance.” (internal quotation marks omitted)). It also can be assumed that, if Plaintiffs could

prove the fact of damages, even an approximate calculation of damages would suffice to survive

summary judgment and go to trial on the third element of Plaintiffs’ claim. See Eastman Kodak

Co. of N.Y. v. S. Photo Materials Co., 273 U.S. 359, 379 (1927) (“Damages are not rendered

uncertain because they cannot be calculated with reasonable exactness. It is sufficient if a

reasonable basis of computation is afforded, although the result be only approximate.” (internal

quotation marks omitted)); accord Baker v. Weber, No. 19 Civ. 1093, 2022 WL 3589095, at *3

(S.D.N.Y. Aug. 23, 2022), report and recommendation adopted, 2023 WL 199009 (S.D.N.Y.

Jan. 17, 2023).

However, Plaintiffs have put forward no evidence on the second element of their antitrust

claims -- i.e., whether the conspiracy caused injury to Plaintiffs. Contrary to Plaintiffs’ argument,

the fact that the alleged price-fixing conspiracy is per se illegal does not absolve Plaintiffs of the

burden to prove that they were injured by the conspiracy. The per se standard eases Plaintiffs’

burden on the element of antitrust violation, but that is separate from the element of injury. See

Cordes, 502 F.3d at 105 (“There is no controversy here regarding the first . . . element.

Horizontal price-fixing agreements are per se violations of the Sherman Act. . . . The second

element -- whether termed ‘antitrust injury,’ ‘causation or impact,’ or ‘injury and causation’ -- is

more complicated.”). The per se rule also may be relevant to part of the test for antitrust injury,

but it does not relieve Plaintiffs of the burden to prove that they were harmed.

The injury element of an antitrust claim “poses two distinct questions”: (1) “the familiar

factual question whether the plaintiff has indeed suffered harm, or ‘injury-in-fact’” and (2) “the

legal question whether any such injury is ‘injury of the type the antitrust laws were intended to

prevent and that flows from that which makes defendants’ acts unlawful.’” Id. at 106. That is, if

Plaintiffs could prove that they suffered any kind of injury in the form of higher prices, they

could likely prove that they suffered “antitrust injury,” i.e., the kind of injury the antitrust laws

guard against. Gelboim v. Bank of Am. Corp., 823 F.3d 759, 772 (2d Cir. 2016) (“Generally,

when consumers, because of a conspiracy, must pay prices that no longer reflect ordinary market

conditions, they suffer [an antitrust injury.]”). That may be so even if the conspiracy does not

eliminate all competition from the market, even if some market forces still affect the price, and

even if the defendants might argue that the prices are nonetheless “reasonable” in some sense. Id.

at 772-74. But that entire inquiry is moot if the plaintiffs were not actually harmed by the prices

they paid. The existence of a price-fixing conspiracy “constitutes strong evidence that the alleged

agreement caused at least some element of the subsequent price increases,” but Plaintiffs still

must prove that there were price increases at relevant times. In re Publ’n Paper Antitrust Litig.,

690 F.3d 51, 67 (2d Cir. 2012); see also In re Actos End-Payor Antitrust Litig., 848 F.3d 89, 101

(2d Cir. 2017) (noting that “a presumption of causation” may apply where conduct is unlawful

because of its tendency to cause a certain injury, but only if “that injury occurred”). That

Plaintiffs cannot do on the current record, for the reasons explained below.

b. Evidence of Antitrust Injury

The guilty pleas and regulatory proceedings on which Plaintiffs rely say nothing about

what effect Defendants’ conduct had on the spot price on any particular day or throughout the

relevant period. As the Court held in denying class certification, the guilty pleas establish that the

effect of the conspiracy was “multi-directional” and “episodic.” Nypl, 2022 WL 819771, at *8.

Plaintiffs argue that the Court erred, at the class certification stage, in finding that the conspiracy

itself was episodic rather than continuous. That argument was rejected in the class certification

decision, and the deadline for seeking reconsideration has long since passed. In any event, this

argument is based on a misreading of that prior decision. The class certification decision did not

deny that the conspiracy existed throughout the relevant period, or that it was against the law at

all times while it existed. But that does not mean prices were manipulated in any particular

direction at any particular time. The conspiracy’s impact may be episodic and multi-directional,

even though the conspiracy itself is continuous and eliminates competition on a “constant” basis,

as one witness testified. The very documents on which Plaintiffs rely state that the conspiracy

raised and lowered prices at different times, and likely had no effect at other times. Plaintiffs’

claims fail because no record evidence provides a basis for a jury to decide in what direction

prices were distorted when Plaintiffs bought euros, and therefore no evidence that Plaintiffs

purchased euros at a supracompetitive price.

i. Defendants’ Guilty Pleas & Regulatory Orders

Defendants’ guilty pleas, on their face, describe episodic and multi-directional price

manipulation. For example, certain Defendants admitted in their guilty pleas that they conspired

to “increase or decrease the price of” euros against dollars. Those Defendants admitted that they

engaged in “near daily conversations” that, “in certain instances” coordinated trading around the

“fixes,” i.e., the setting of benchmark rates. The TAC focused solely on alleged manipulation of

those benchmark rates, but the Court has since held that the benchmark-fixing was episodic and

multi-directional. Plaintiffs’ expert testified that he did not “analyze defendants’ conduct for all

the days” or indeed “any days” in the relevant period, and he had no opinion on whether the

prices on any day were supracompetitive, because he believed that such opinions were relevant

only to damages.

Plaintiffs now spread their focus to Defendants’ other admitted conduct. For example, the

Defendants that pleaded guilty also admitted to “withholding bids and offers, when one

conspirator held an open risk position, so that the price of the currency traded would not move in

a direction adverse to the conspirator with an open risk position.” Those pleas, by their terms,

describe conduct that is episodic and multi-directional. That is, the admitted conduct occurred

only when a conspirator was exposed to certain risk, and might inflate or depress the price

depending on which favored the co-conspirator’s open position.

Several kinds of misconduct described in the guilty pleas do not apply to Plaintiffs’ claims

at all. Much of the conduct pertains only to transactions “via telephone, email, and/or electronic

chat,” not to the in-person, physical transactions at issue in this case. And statements about

Defendants’ efforts to widen bid/ask spreads are irrelevant because there is no evidence that

Plaintiffs engaged in transactions where prices included a bid/ask spread. For similar reasons, the

recent jury finding that a conspiracy existed to widen bid/ask spreads does not affect the analysis

of Plaintiffs’ claims. Plaintiffs refer generally to their expert’s supplemental report and

deposition and claim he will calculate an “apportionment of the spread between purchase and sale

transactions.” Even assuming Plaintiffs’ expert could calculate the amount by which the spread

was widened in the market for the euros between 2007 and 2013, and allocate that spread

between an increase in the ask price and a decrease in the bid price, the deposition and report

contain no methodology for connecting any such spread to transactions that Plaintiffs actually

made.

Other isolated statements in the guilty pleas on which Plaintiffs rely are irrelevant. The

fact that the Defendants admitted to referring to themselves as the “Cartel” or the “Mafia” sheds

no light on the frequency or direction of manipulation. And statements to the effect that

Defendants’ conduct occurred “in a continuous and uninterrupted flow” of interstate commerce

are relevant to a different element of Sherman Act liability, the interstate commerce requirement.

Those statements do not suggest that Defendants’ actually manipulated prices on a “continuous

and uninterrupted” basis, much less that they always moved prices in a particular direction.

Plaintiffs also rely on statements made in other regulatory proceedings, which are

similarly unhelpful to Plaintiffs. Statements by the Board of Governors of the Federal Reserve,

that certain Defendants entered “agreements . . . to coordinate FX trading in a manner designed to

influence . . . benchmark fixes and market prices generally,” do not suggest that those agreements

fixed “market prices generally” in any particular direction at any particular time. The

Commodity Futures Trading Commission orders state that manipulative conduct occurred only

“at times” during the relevant period and that the defendants “altered trading positions to

accommodate the interests of the collective group, and agreed on trading strategies as part of an

effort by the group to attempt to manipulate certain FX benchmark rates, in some cases

downward and in some cases upward.” And orders of the Office of the Comptroller of the

Currency contain no detail on the alleged misconduct.

ii. Evidence of the Amount of Harm Caused

In the absence of evidence about the conspiracy’s effect on the spot price on any

particular day, Plaintiffs rely on the Department of Justice’s calculation of the fines that it

recommended in connection with the guilty pleas. Plaintiffs rely on the “estimation that the

alleged misconduct had, on average, changed the 1:15 pm ECB and 4:00 pm WM/R fixing rates

for EUR/USD by three pips during the period between 2008 and 2012.” Even assuming that

estimate is competent evidence of the average impact in absolute terms on those benchmarks, and

even assuming those benchmarks played a role in calculating the prices Plaintiffs paid, DOJ’s

calculation is no evidence of how much prices were inflated on any given day. “Three pips” is an

estimate of how much the benchmark rates had been “changed” “move[d]” or been “[a]ffect[ed]”

-- up or down -- not how much they were inflated. See Def. Citi’s Resp. to Pl.’s 4th Interrog.,

App. at 2, 4; Def. JPMC’s Resp. to Pl.’s 4th Interrog., App. A at 2, 3; Def. Barclays’s, Resp. to

Pl.’s 4th Interrog., App. A at A-5; Def. RBS’s Resp. to Pl.’s 4th Interrog., App. at 1, 2 (Dkt. Nos.

850-14, 850-15). That is, the estimate not only averages effects across individual days, it

encompasses both days on which the conspirators inflated and depressed the benchmark rates,

according to their interests that day. While some victims of the conspiracy could be harmed no

matter which way the price was manipulated, Plaintiffs could only have been injured on days

when the price of euros was higher relative to dollars.

Plaintiffs also emphasize comments by the sentencing judge, Judge Underhill, at the time

of certain Defendants’ guilty pleas. Judge Underhill remarked on the size of the fines, which he

believed reflected the seriousness of the offenses. Judge Underhill also mentioned that restitution

would be worked out in civil cases. Plaintiffs’ reliance on those statements misses the mark for

several reasons. First, the fact that civil cases were chosen as the preferred mechanism of making

whole the victims of Defendants’ conspiracy says nothing about whether these Plaintiffs have

meritorious claims. Defendants’ choice to defend this lawsuit does not render any guilty plea a

“fraud.” Second, the remarks by the sentencing judge about the size of the fines and potential

future restitution underscore the inapplicability of the DOJ estimates discussed above. The

DOJ’s “three pips” number was used to calculate the fines that DOJ actually imposed on the

Defendants that pleaded. As the sentencing judge acknowledged, that number is wholly separate

from calculating any restitution that might be owed to compensate victims. The latter would have

been the function of this lawsuit, if Plaintiffs could have proven compensable injury.

Because there is no record evidence from which a reasonable jury could find that any

manipulation of FX spot market prices caused inflated retail prices in any particular transaction, it

is unnecessary to resolve the parties’ dispute over precisely how those retail prices were

calculated and which spot prices or benchmarks factored into that calculation.

B. California Claims

Defendants’ motion for summary judgment is granted on Plaintiffs’ California Cartwright

Act claims for substantially the reasons discussed above, and for the independent reason that

Plaintiffs abandoned these claims. Case law interpreting the federal antitrust laws is “instructive,

not conclusive, when construing the Cartwright Act.” Schwab Short-Term Bond Mkt. Fund v.

Lloyds Banking Grp. PLC, 22 F.4th 103, 120 (2d Cir. 2021) (internal quotation marks omitted).

In many respects, but not all, “[t]he analysis of claims brought under California’s Cartwright Act

‘mirrors the analysis under federal law because the Cartwright Act . . . was modeled after the

Sherman Act.” Fed. Trade Comm’n v. Shkreli, No. 20 Civ. 706, 2022 WL 135026, at *43

(S.D.N.Y. Jan. 14, 2022) (quoting County of Tuolomne v. Sonora Cmty. Hosp., 236 F.3d 1148,

1160 (9th Cir. 2001)). At a minimum, “resulting damage” from a conspiracy in restraint of trade

is an element of a Cartwright Act claim. See, e.g., Ben-E-Lect v. Anthem Blue Cross Life &

Health Ins. Co., 265 Cal. Rptr. 3d 495, 501 (2020). That element is not met for the same reasons

discussed above that the causation and injury elements of a federal antitrust claim are not

satisfied.

In any event, Defendants argue that the Cartwright Act does not apply to any of Plaintiffs’

claims because none of them have “significant contacts with California, such that their claims

predominantly arose here, and gave rise to a significant interest on the part of California in

applying its laws to” the claims. See J.P. Morgan & Co., Inc. v. Super. Ct., 6 Cal. Rptr. 3d 214,

233-34 (2003). Nypl is a California resident, but all of the other Plaintiffs live and do business in

either Florida, Texas or Pennsylvania. McCarthy testified that she made qualifying FX purchases

in Florida, and Jolly testified that she made qualifying purchases in Texas. As discussed above,

there is no dispute that the only Plaintiff with a connection to California -- Nypl -- made no

qualifying transactions. Because Plaintiffs failed to respond to Defendants’ argument that the

Cartwright Act does not apply to any other Plaintiffs claims, Plaintiffs have abandoned those

claims. See, e.g., Townsquare Media, Inc. v. Regency Furniture, Inc., No. 21 Civ. 4695, 2022

WL 4538954, at *20 (S.D.N.Y. Sept. 28, 2022).

IV. CONCLUSION

For the foregoing reasons, Defendants’ motion for summary judgment is granted. The

request for oral argument is denied as moot.

The Clerk of Court is directed to close the motion at Dkt. No. 806 and close the case.

Dated: March 29, 2023

New York, New York

UNITED STATES DISTRICT JUDGE

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