Ohio Carpenters' Pension Fund v. Deutsche Bank AG

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

OHIO CARPENTERS’ PENSION

FUND, ELECTRICAL WORKERS

PENSION FUND LOCAL 103

I.B.E.W., and SAN BERNARDINO

COUNTY EMPLOYEES’

RETIREMENT ASSOCIATION,

Plaintiffs,

OPINION & ORDER

– against –

22-cv-10462 (ER)

DEUTSCHE BANK AG, DEUTSCHE

BANK SECURITIES INC.,

COOPERATIEVE RABOBANK U.A.

(f/k/a COOPERATIEVE CENTRALE

RAIFFEISEN-BOERENLEENBANK

U.A.), and RABO SECURITIES USA,

INC.,

Defendants.

RAMOS, D.J.:

Ohio Carpenters’ Pension Fund (“Ohio Carpenters”), Electrical Workers Pension

Fund Local 103 I.B.E.W. (“Local 103”), and San Bernardino County Employees’

Retirement Association (“SBCERA”) (collectively, “Plaintiffs”) bring this putative class

action against Deutsche Bank AG (“DBAG”), Deutsche Bank Securities Inc. (“DBSI”),

Coöperatieve Rabobank U.A. (f/k/a Coöperatieve Centrale Raiffeisen-Boerenleenbank

B.A.) (“CRUA”), and Rabo Securities USA, Inc. (“RSUI”).1 Plaintiffs allege that

Defendants entered a per se illegal agreement in violation of Section 1 of the Sherman

Act to fix and otherwise manipulate the price of European government bonds (“EGBs”)

sold in the United States from approximately January 1, 2005, through December 31,

2016, (the “Class Period”). See Second Amended Complaint ¶¶ 221–224 ECF No. 59

1 Defendants DBAG and DBSI (together, “Deutsche Bank”), and CRUA and RSUI (together, “Rabobank”)

are collectively referred to as “Defendants.”

(“SAC”). Defendants are moving to dismiss the claims, alleging that (1) the conspiracy

is implausible, (2) Plaintiffs lack antitrust standing, (3) the Court lacks personal

jurisdiction over the foreign Defendants, and (4) Plaintiffs’ claim is time-barred. Doc. 64.

For the reasons set forth below, Defendant's motion is GRANTED in part and DENIED

in part.

I. BACKGROUND

A. Statement of Facts

EGBs are sovereign debt securities issued by European central governments that

have adopted the Euro as their official currency, including Austria, Belgium, Finland,

France, Germany, Italy, Portugal, Greece, Ireland, the Netherlands, and Spain, among

others (collectively, the “Eurozone”). SAC ¶ 2. EGBs are treated as a single class of

debt securities because Eurozone members share a common currency, certain

“convergence criteria” that aim at the development of an integrated financial market for

the Eurozone, and centralized institutions that set a common monetary policy, such as the

European Central Bank. See Id. at ¶¶ 74, 79. By March 2007, the European Central

Bank observed that the EGB market was highly integrated. Id. at ¶ 79. As of 2012,

global EGB holdings approximated $8 trillion, and the EGB holdings of United States

investors consistently amounted to hundreds of billions of dollars throughout the Class

Period. Id. at ¶ 80. EGB markets consequently rely upon large financial institutions like

the Defendants to act as dealers and market makers. Id. at ¶¶ 89, 90, 94. Defendants play

multiple roles in the EGB markets. Most notably, primary dealers acquire EGBs from

government issuers in the “Primary Market,” and Defendants trade those EGBs with

other investors in the “Secondary Market.” Id. at ¶ ¶ 3, 72. Plaintiffs claim that

Defendants participated in a price-fixing conspiracy to fix prices in the “Secondary

Market” during the Class Period. Id. at ¶ ¶ 4, 202.

i. Primary Market

European government issuers first distribute their EGBs to institutions in the

“Primary Market.” SAC ¶ 3. Distribution typically occurs via auction, though the details

of distribution may vary to some extent by government issuer. Id. at ¶ 82. Typically,

issuers only select a small number of banks to serve as primary dealers of the EGBs,

often with the same banks acting as primary dealers for multiple issuers. Id. at ¶ 83. As a

result, these banks gain significant control over EGBs issued in auctions. Id. �e premier

trade association for EGBs, the Association for Financial Markets in Europe (“AFME”),

listed twenty-five “Primary Dealer Members,” including Defendants, in 2012. Id. at ¶ 18.

In 2008, members of the AFME's predecessor trade organization collectively traded 85

percent of all volume in the EGB market. See Id.

ii. Secondary Market

After the initial issuance in the primary market, EGBs are further traded for

investing and hedging purposes among bond dealers and investors, including

international banks like Defendants. SAC ¶ 93. �ere is an active secondary market for

EGBs in the United States. Id. Plaintiffs allege that Defendants and their co-conspirators

dominate the United States market, acting as market makers by providing liquidity to

investors and standing ready to buy and sell EGBs whenever an investor seeks to do so.

SAC ¶ 94. �e Secondary Market is defined by infrequent, large transactions that

averaged €18 million per transaction during the Class Period. SAC ¶ 142. �ese

transactions are made bilaterally over the counter, rather than through a public exchange.

SAC ¶¶ 97, 144. As a result, information on EGB trades in the Secondary Market is

generally not publicly available, though Defendants are allegedly able to acquire

information on EGB supply and demand through certain interdealer platforms and their

relationships with EGB issuers. SAC ¶ 144. Plaintiffs allege that Defendants shared

confidential information regarding their secondary trading through online chatrooms in

order to coordinate their pricing. Id. Furthermore, Plaintiffs assert that they directly

purchased and sold EGBs with Defendants and their co-conspirators at prices fixed by

those conspirators through these online chatrooms and other private communications.

SAC ¶¶ 11, 51-53, 58, 66; see also Doc. 69 at 20.

Plaintiffs suggest that this conspiracy was also facilitated by the structure of

Defendants’ EGB trading business in which employees of multiple entities in a corporate

family would frequently work together to sell the EGBs acquired by the primary dealer

(i.e., by an entity within each bank’s respective fixed income division). SAC ¶ ¶ 99–101.

For example, employees of American-based broker-dealer affiliates would solicit interest

from investors in the United States, and the primary dealers would determine pricing and

execute internal transactions to transfer the EGBs to an affiliated American trading desk

for further distribution to American investors. Id.

As evidence of anticompetitive coordination in the Secondary Market, Plaintiffs

analyzed the difference in price between the “bids” at which Defendants would purchase

EGBs and the “asks” at which Defendants would sell EGBs (the “bid-ask spread”). See

Id. at ¶¶ 181–86. Plaintiffs allege that because the prices at which a party buys and sells

the same good should be nearly the same in a competitive market, a “wider” bid-ask

spread suggests Defendants anticompetitively charged much more for EGBs than they

themselves paid. SAC ¶ 98. Plaintiffs analyzed the change in the average relative bid-

ask spreads in Defendants’ quoted prices with that of dealers within a control group and

include a graph in the SAC to show the results. See Id. at ¶¶ 181–86, Figure 7. Plaintiffs

allege that Figure 7 shows that when the conspiracy allegedly ended, Defendants’ bid-ask

spreads for Dutch EGBs had narrowed at a “four to five times” greater magnitude than

during the Class Period. See Id.; Doc. 69 at 10. Because it would be economically

infeasible for one dealer to buy at lower prices and sell at higher prices than its

competitors in a truly competitive market, Plaintiffs allege that the significantly wider

bid-ask spreads during the Class Period suggest anticompetitive conduct during that time.

Id.

iii. The European Commission’s Statement of Objections

Although this conspiracy allegedly ended before 2017, Plaintiffs allege that they

learned of it only after the European Commission (“EC”) issued a Statement of

Objections on December 6, 2022 (the “2022 Statement”).2 See SAC ¶213. A Statement

of Objections reflects the EC’s preliminary view that the entity or person of interest—in

this case, Deutsche Bank and Rabobank—violated European Competition laws. Id. at ¶

7. In the 2022 Statement, the EC published its preliminary view that “[Deutsche Bank

and Rabobank] breached EU antitrust rules by colluding to distort competition when

trading Euro-denominated Sovereign (i.e., EGBs), SSA… Covered, and Government

Guaranteed bonds.”3 Id. at ¶ 114. Specifically, it states “that between 2005 and 2006, the

two banks… exchanged commercially sensitive information and coordinated their pricing

and trading strategies when trading [EGBs] in the secondary market[.]” Id. at ¶ 7.

2 Plaintiffs allege that their due diligence could not have uncovered the conspiracy. SAC ¶ 214. Instead,

they allegedly relied on Defendant’s affirmative representations, including Deutsche Bank’s Code of

Conduct and Ethics, which states, inter alia, that “[w]e conduct our business in accordance with applicable

antitrust laws that are designed to advance fair competition and prohibit the misuse of market power by

individual companies,” SAC ¶ 217, and Rabobank’s “Banker’s Oath,” which requires all employees to

swear that they will “comply with the laws, regulations and codes” that apply to them. Id.

3 �e Commission’s press release defines the other bonds at issue in the Commission investigation as

follows:

SSA bonds: an umbrella term for three types of bonds: (1) Supra-Sovereign bonds

issued by supranational institutions or agencies whose mandate extends across

national borders, such as the European Investment Bank; (2) Foreign Sovereign

bonds issued by governments under a law different from their own and/or in a

different currency other than their own; (3) SubSovereign/Agency bonds issued

by governmental or government-related entities below the level of the central gov-

ernment, such as regions or municipalities, government-owned banks, or social

security facilities.

Covered bonds: issued by credit institutions that are secured by a protected pool

of high-quality assets, such as mortgage loans or public sector debt.

Government Guaranteed bonds: offer a secondary guaranteed interest where prin-

cipal payment will be made by a government authority upon default of the issuer.

�ese bonds were issued in response to the 2008 financial crisis and for a limited

period of time.

See Press Release, European Commission, Antitrust: Commission sends Statement of Objections to

Deutsche Bank and Rabobank over Euro-denominated bonds trading cartel case (Dec. 6, 2022),

https://ec.europa.eu/commission/presscorner/detail/en/ip_22_7409 (last visited on August 5, 2024)

(emphasis omitted).

“�ese contacts would have taken place mainly—but not exclusively—through online

chatrooms.” Id. at ¶ 115. Additionally, Deutsche Bank has confirmed that the EC granted

it conditional immunity because it has “proactively cooperated with the EC in this

matter.” Id. at ¶ 7. Plaintiffs allege that in order for Deutsche Bank to have been granted

conditional immunity from the EC, it must have admitted to their participation in the

alleged cartel. Id. at ¶ 7.

On November 22, 2023, during the pendency of this motion, the EC issued a new

press release announcing its findings (“2023 Press Release”).4 Doc. 69 at 14; Doc. 73 at

1. According to Defendants, the fact that the 2023 Press Release contains no mention of

wrongdoing by them with respect to EGBs—only Euro-denominated SSA bonds and

Government Guaranteed bonds—is illustrative of why courts in this District have found

that an antitrust complaint cannot rely solely on a Statement of Objections by the EC

while the EC is still investigating and before the scope and outcome of the investigation

are known. Doc. 73 at 1. Plaintiffs allege that the 2023 Press Release nevertheless

confirms that there were a high number of interfirm communications between the

Defendants’ traders during the Class Period, Doc. 69 at 14, and based on these exchanges,

traders adjusted their price levels and trading strategies. Id.

iv. In re European Government Bonds Antitrust Litigation.

�ere was a related case in this district, In Re European Government Bonds

Antitrust Litigation, filed March 22, 2019.5 See No. 19-cv-2601 (VM) (SDNY) (“In re

4 According to the press release, the EC fined Rabobank €26.6 million for participating in a cartel

concerning the trading of certain Euro-denominated bonds—Euro-denominated SSA bonds and

Government Guaranteed bonds—together with Deutsche Bank between 2006 and 2016. See Press Release,

European Commission, Antitrust: Commission fines Rabobank €26.6 million over Euro-denominated bonds

trading cartel (Nov. 23, 2023), https://ec.europa.eu/commission/presscorner/detail/en/ip_23_5960 (last

visited on August 7, 2024). �e EC’s investigation revealed that, “through some of their traders, [the two

banks] exchanged commercially sensitive information and coordinated their trading and pricing strategies.

Id.

5 On July 29, 2024, the court in In re EGB granted preliminary approval of the parties’ proposed settlement,

and on the same day, closed the case.

EGB”).6 In In re EGB, the same plaintiffs as in the instant case brought an action against

various banks, alleging an antitrust conspiracy in violation of the Sherman act within the

primary and secondary United States markets for EGBs from approximately January 1,

2007, thorough at least December 31, 2012.7 Doc. 1. Like in the present case, plaintiffs

in In re EGB also relied on a Statement of Objections. �ere, the Statement of Objections

was issued on January 31, 2019 (the “2019 Statement”), with the complaint filed three

months later.8 �e 2019 Statement outlined the EC’s preliminary investigation results,

finding: that the defendants banks in that case9 had “participated in a collusive scheme

that aimed at distorting competition [in the European markets] when acquiring and

trading European government bonds[.]”10 Plaintiffs in In re EGB used the 2019

Statement to argue that the banks had similarly conspired in restraint of trade within the

United States. Id. �e 2019 Statement noted a high level of interfirm communications

among defendants discussing sensitive information, which plaintiffs asserted was

contrary to defendants’ individual self-interest and thus further evidence of collusion.

Doc. 66 ¶ 228. In further support of their allegations of price collusion in the EGB

markets, plaintiffs in In re EGB presented statistical information and other circumstantial

evidence, including evidence that the structure of the EGB market was conducive to

6 See 2020 WL 4273811 (S.D.N.Y. Jul. 23, 2020) (“EGB I”); 2022 WL 768680 (S.D.N.Y. Mar. 14, 2022)

(“EGB II”); 2023 WL 11646009 (S.D.N.Y. Sept. 25, 2023) (“EGB III”).

7 In addition to the Plaintiffs in this case, Boston Retirement System was also a plaintiff in In re EGB. Doc.

1.

8 European Commission, Press Release, “Antitrust: Commission sends Statement of Objections in

European government bonds cartel” (Jan. 31, 2019), http://europa.eu/rapid/press-release_IP-19-

804_enhtm.

9 �e initial complaint in In re EGB, alleged antitrust violations by defendant banks Bank of America, N.A.,

Merrill Lynch International, Bank of America Merrill Lynch International Designated Activity Company,

Natixis S.A., NatWest Markets plc, Nomura International plc, Nomura Securities International Inc., UBS

AG, UBS Europe SE, UBS Securities LLC, UniCredit Bank AG, NatWest Markets Securities Inc., and

UniCredit Capital Markets LLC. EGB I.

10 In addition to the Plaintiffs in this case, Boston Retirement System was also a plaintiff in In re EGB.

Doc. 1

collusion. See Doc. 66. Here, Plaintiffs make very similar arguments using the 2022

Statement.11

In In re EGB, the court granted defendants’ motion to dismiss both the third and

fourth amended complaints as to some defendants and denied as to others.12 EGB I; EGB

II. Relevant to the present case, in both instances, the court held that plaintiffs’ claim was

not time-barred where they sufficiently alleged that defendants’ fraudulent concealment

11 Plaintiffs in In re EGB argued that in addition to the 2019 Statement, many features of the EGB market

structure support the existence of an EGB cartel and thus the inference of a conspiracy. Doc. 1 at 28–38.

�ose features included that: (1) it is highly concentrated, (2) it has high barriers to entry, (3) it is highly

opaque, (4) artificially widening bid-ask spreads would be contrary to any single primary dealer’s economic

self-interest, (5) defendants and their co-conspirators had common motives to conspire, (6) sharing

proprietary trading information is an act against any bank’s self interest in the absence of a conspiracy, (7)

there was a high level of communications among defendants and their co-conspirators, and (8) defendants

had the opportunity to collude through their involvement in industry trade associations, such as the AFME

and the European Primary Dealers Association (the “EPDA”). Id. at 33–38.

Similarly, Plaintiffs here argue that in addition to the EC’s 2022 investigation, many features of the EGB

market structure support the existence of an EGB cartel and thus the inference of a conspiracy. Doc. 58 at

31–47. �ose features include that: (1) it has high barriers to entry, (2) it was susceptible to collusion, (3)

pre-trade price discovery for non-dealers in the European Government Bond market is difficult, (4)

Defendants’ conduct was contrary to their individual economic interests, (5) in the absence of a conspiracy,

sharing proprietary trading information was contrary to Defendants’ individual economic interests, (6)

European Government Bonds traders operate in a tightly knit community, (7) there was a high level of

communications among Defendants and their coconspirators, and (8) Defendants and their co-conspirators

had the opportunity to collude through their involvement in industry trade associations, such as the AFME

and the EPDA. Id. at 38–47.

12 In EGB I, defendants argued that (1) the third amended complaint was untimely, (2) the TAC failed to

adequately plead either antitrust standing or an antitrust conspiracy as to all defendants, and (3) the TAC

failed to plead personal jurisdiction over the foreign defendants. Id. �e court denied the motion to dismiss

as to defendants Natixis S.A., Nomura International plc, and Nomura Securities International Inc., and

granted as to Bank of America Merrill Lynch International Designated Activity Company, Merrill Lynch

International, Bank of America, N.A., NatWest Markets plc, NatWest Markets Securities Inc., UBS AG,

UBS Europe SE, UBS Securities LLC, UniCredit Bank AG, and UniCredit Capital Markets LLC. Id.

In EGB II, defendants argued that (1) the fourth amended complaint was untimely, (2) the FAC failed to

adequately plead either antitrust standing or an antitrust conspiracy as to all defendants, (3) the FAC failed

to tie each defendant to the alleged conspiracy, and (4) the FAC did not establish personal jurisdiction over

the foreign defendants. Id. �e Court denied the motion to dismiss as to defendants Natixis S.A., Nomura

Securities International plc, Nomura Securities International Inc., UniCredit Bank AG, Citigroup Global

Markets Limited, Citigroup Global Markets Inc., Jefferies International Limited, and Jefferies LLC, and

granted as to Merrill Lynch International , Bank of America, N.A., NatWest Markets plc, NatWest Markets

Securities Inc., UBS AG, UBS Europe SE, UBS Securities LLC, UniCredit Capital Markets LLC, J.P.

Morgan Securities plc, JP Morgan Chase Bank, N.A., J.P. Morgan Securities LLC, RBC Europe Limited,

RBC Capital Markets, and Royal Bank of Canada. Id.

prevented earlier detection, particularly when plaintiffs claimed they “reli[ed] on alleged

misrepresentations related to the conduct at issue.” EGB I at 10; EGB II at 13. �e court

also held that a plaintiff is not an efficient enforcer of antitrust laws—as is required to

have antitrust standing in the Second Circuit—against a defendant with whom they did

not directly transact. EGB II at 17. Moreover, the court determined that statistical

representations showing that the defendant banks, collectively, had significantly higher

bid-ask spreads during the class period than the control group, was sufficient to allow a

court to infer parallel conduct evincing an antitrust conspiracy, if there is sufficient

additional evidence connecting each defendant, independently, to the conspiracy. See

EGB I at 16–20; EGB II at 21, 22. In determining the relative weight to assign the 2019

Statement and the EC’s overall investigation, the court held that “[w]hile the [EC’s]

investigation alone would be insufficient to support an allegation of a plausible

conspiracy, it [can] constitute[] circumstantial evidence and a ‘plus factor’ bolstering

[p]laintiffs’ allegations[.]” See EGB I at 16; EGB II at 21.

B. Procedural Background

Plaintiffs filed a Complaint on December 9, 2022, see Doc. 1, and the operative

SAC on October 6, 2023, alleging an antitrust conspiracy in violation of §1 of the

Sherman Act in the secondary market for EGBs. See Doc. 58. Defendants filed a motion

to dismiss on November 6, 2023, alleging that (1) the conspiracy is implausible, (2)

Plaintiffs lack antitrust standing, (3) the Court lacks personal jurisdiction over the foreign

Defendants, and (4) Plaintiffs’ claim is time-barred. See Doc. 64. Notices of

supplemental authority were filed with the Court by both parties on February 7 and 22,

2024, see Docs. 76, 82, after the briefing was completed on the motion to dismiss. see

Docs. 81, 83.

II. LEGAL STANDARD

A. Rule 12(b)(6) Failure to State a Claim

“To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell

Atlantic Corporation et al... v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d

929 (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.” Id. (citing Twombly, 550 U.S. at 556). �e plaintiff must allege

sufficient facts to show “more than a sheer possibility that a defendant has acted

unlawfully.” Id. (citing Twombly, 550 U.S. at 556). However, this “flexible ‘plausibility

standard’” is not a heightened pleading standard, In re Elevator Antitrust Litig., 502 F.3d

47, 50, 50 n.3 (2d Cir. 2007) (quoting ATSI Communications, Inc. v. Shaar Fund, Ltd.,

493 F.3d 87, 98 n.2 (2d Cir. 2007)), and “a complaint ... does not need detailed factual

allegations” to survive a motion to dismiss, Twombly, 550 U.S. at 555.

�e question on a motion to dismiss “is not whether a plaintiff will ultimately

prevail but whether the claimant is entitled to offer evidence to support the claims.” Sikhs

for Justice v. Nath, 893 F. Supp. 2d 598, 615 (S.D.N.Y. 2012) (quoting Villager Pond,

Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995)). “[T]he purpose of Federal Rule

of Civil Procedure 12(b)(6) ‘is to test, in a streamlined fashion, the formal sufficiency of

the plaintiff's statement of a claim for relief without resolving a contest regarding its

substantive merits’” or “weigh[ing] the evidence that might be offered to support it.”

Halebian v. Berv, 644 F.3d 122, 130 (2d Cir. 2011) (quoting Global Network

Communications, Inc. v. City of New York, 458 F.3d 150, 155 (2d Cir. 2006)). �e Court

therefore must ordinarily confine itself to the four corners of the complaint and look only

to the allegations contained therein. See id. When ruling on a motion to dismiss pursuant

to Rule 12(b)(6), the Court accepts all factual allegations in the complaint as true and

draws all reasonable inferences in the plaintiff's favor. Nielsen v. Rabin, 746 F.3d 58, 62

(2d Cir. 2014); see also Twombly, 550 U.S. at 556 (“[A] well-pleaded complaint may

proceed even if it strikes a savvy judge that actual proof of those facts is improbable....”).

Likewise, “[t]here is no heightened pleading requirement in antitrust cases.” In re

Crude Oil Commodity Futures Litig., 913 F. Supp. 2d 41, 54 (S.D.N.Y. 2012). However,

“a plaintiff must do more than cite relevant antitrust language to state a claim for relief.”

Wolf Concept S.A.R.L. v. Eber Bros. Wine & Liquor Corp., 736 F. Supp. 2d 661, 667

(W.D.N.Y. 2010) (citing Todd v. Exxon Corporation, 275 F.3d 191, 198 (2d Cir. 2001)).

“A plaintiff must allege sufficient facts to support a cause of action under the antitrust

laws. Conclusory allegations that the defendant violated those laws are insufficient.” Id.

at 667–68 (quoting Kasada, Inc. v. Access Capital, Inc., No. 01 Civ. 8893 (GBD), 2004

WL 2903776, at *3 (S.D.N.Y. Dec. 14, 2004)). “[A] bare bones statement of conspiracy

or of injury under the antitrust laws without any supporting facts permits dismissal.” Id.

at 668 (quoting Heart Disease Research Foundation v. Gen. Motors Corporation, 463

F.2d 98, 100 (2d Cir. 1972)).

B. Rule 12(b)(2) Personal Jurisdiction

A defendant may move to dismiss a plaintiff's claims against it for “lack of

personal jurisdiction.” Fed. R. Civ. P. 12(b)(2). On a motion to dismiss pursuant to Rule

12(b)(2), the “plaintiff bears the burden of demonstrating personal jurisdiction over a

person or entity against whom it seeks to bring suit.” Penguin Group (USA) Inc. v.

American Buddha, 609 F.3d 30, 34 (2d Cir. 2010) (citing In re Magnetic Audiotape

Antitrust Litig., 334 F.3d 204, 206 (2d Cir. 2003) (per curiam)); see also Bank Brussels

Lamberts v. Fiddler Gonzalez & Rodriguez, 171 F.3d 779, 784 (2d Cir. 1999) (“When

responding to a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, the

plaintiff bears the burden of establishing that the court has jurisdiction over the

defendant.” (citations omitted)). To defeat a jurisdiction-testing motion, the plaintiff's

burden of proof “varies depending on the procedural posture of the litigation.”

Dorchester Financial Securities, Inc. v. Banco BRJ, S.A., 722 F.3d 81, 84 (2d Cir. 2013)

(quoting Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir. 1990)).

At the pleading stage—and prior to discovery—a plaintiff need only make a prima facie

showing that jurisdiction *318 exists. Id. at 84-85; see also Eades v. Kennedy, PC Law

Offices, 799 F.3d 161, 167-68 (2d Cir. 2015) (“In order to survive a motion to dismiss for

lack of personal jurisdiction, a plaintiff must make a prima facie showing that jurisdiction

exists.”) (quoting Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 732 F.3d 161, 167

(2d Cir. 2013)).

If the court considers only pleadings and affidavits, the plaintiff's prima facie

showing “must include an averment of facts that, if credited by the ultimate trier of fact,

would suffice to establish jurisdiction over the defendant.” In re Terrorist Attacks on

September 11, 2001, 714 F.3d 659, 673 (2d Cir. 2013) (quoting Chloe v. Queen Bee of

Beverly Hills, LLC, 616 F.3d 158, 163 (2d Cir. 2010) (quotation marks omitted)). Courts

may rely on materials outside the pleading in considering a motion to dismiss for lack of

personal jurisdiction. See DiStefano v. Carozzi North America, Inc., 286 F.3d 81, 84 (2d

Cir. 2001). “�e allegations in the complaint must be taken as true to the extent they are

uncontroverted by the defendant's affidavits.” MacDermid, Inc. v. Deiter, 702 F.3d 725,

727 (2d Cir. 2012) (quoting Seetransport Wiking Trader Schiffarhtsgesellschaft MBH &

Co., Kommanditgesellschaft v. Navimpex Centrala Navala, 989 F.2d 572, 580 (2d Cir.

1993)).

III. DISCUSSION

A. Statute of Limitation

As a preliminary matter, Defendants contend that Plaintiffs’ claims are time-

barred by the Sherman Act’s four-year statute of limitations. Doc. 64 at 24. See also 15

U.S.C. § 15b. Because Plaintiffs first filed this action in 2022 but allege that the

conspiracy ended on December 31, 2016, the action is presumptively untimely. Doc. 64

at 24. However, Plaintiffs argue that the statute of limitations was tolled by Defendants’

fraudulent concealment. Doc. 69 at 23.

In the Second Circuit, the statute of limitations is tolled under a claim of

fraudulent concealment when an antitrust plaintiff establishes “(1) that the defendant

concealed… the existence of his cause of action, (2) that he remained in ignorance of that

cause of action until some point within four years of the commencement of his action,

and (3) that his continuing ignorance was not attributable to lack of diligence on his part.”

State of N.Y. v. Hendrickson Bros. Inc., 840 F. 2d 1065, 1083 (2d Cir. 1988); see also In re

Merrill Lynch Limited Partnerships Litig., 154 F. 3d 56, 60 (2d Cir. 1998).

A claim of fraudulent concealment must be pled with particularity, in accordance

with the heightened pleading standards of Federal Rule of Civil Procedure 9(b). Hinds

County, Mississippi v. Wachovia Bank N.A., 620 F. Supp. 2d 499, 520 (S.D.N.Y. 2009).

“[A] plaintiff must allege only that degree of diligence which would be reasonable in

light of the allegedly concealed fraud.” EGB I at 11. In the Second Circuit, “[f]raudulent

concealment does not lessen a plaintiff's duty of diligence; it merely measures what a

reasonably diligent plaintiff would or could have known regarding the claim.” Id.

Accordingly, “a plaintiff's failure to exhaustively turn over every stone that might conceal

illicit conduct would not foreclose a finding of fraudulent concealment if the relevant

facts and circumstances indicate that such efforts would be impractical or fruitless.” Id.

(quoting Stone v. Williams, 970 F.2d 1043, 1048–49 (2d Cir. 1992); See also Rosenshein

v. Meshel, 688 F. App'x 60, 64–65 (2d Cir. 2017).

For purposes of this motion, Defendants do not contest that Hendrickson’s first

two elements are met but instead argue that the SAC fails to allege that Plaintiffs “acted

with reasonable diligence throughout the period [they] seek to toll.” Doc. 64 at 24

(quoting SL-x IP S.a.r.l. v. Merrill Lynch, Pierce, Fenner & Smith Inc., No. 21-2697, 2023

WL 2620041, at *5 (2d Cir. Mar. 24, 2023). While Plaintiffs do not explicitly allege that

they were reasonably diligent, they do allege that their diligence could not have

uncovered the conspiracy.13 SAC ¶ 214. Additionally, like the plaintiffs in EGB I,

Plaintiffs here allege that they relied on Defendants’ affirmative representations in their

“codes of conduct represent[ing] that [their] operations were above board, providing a

false sense of security to unwitting investors.” EGB I at 11; SAC ¶ 217.

Defendants, citing Litovich v. Bank of Am. Corp., argue that Plaintiffs’ “reliance

on codes of conduct are insufficient to toll the statute of limitations…” See 568 F. Supp.

3d 398, 434 (S.D.N.Y. 2021); see also In re Merrill, Band of America, & Morgan Stanley

Spoofing Litig., 2021 WL 827190, at *11 (S.D.N.Y. Mar. 4, 2021). However—as

Plaintiffs point out—in EGB I, this Court held that “while plaintiffs cannot simply rely on

the inherently self-concealing nature of a conspiracy to satisfy the first and third elements

of fraudulent concealment, reliance on affirmative representations in [Defendants’] codes

of conduct… may be “adequate at the pleading stage.” EGB I at 11–12 (“where a

plaintiff relies on misrepresentations of above-board behavior, allegations about their

reliance on those false reassurances can prove sufficient due diligence to withstand a

motion to dismiss.”) (citing Hinds County Mississippi v. Wachovia Bank N.A., 700 F.

Supp. 2d 378, 400 (S.D.N.Y. 2010)). As an example of Defendants’ affirmative

representations, the SAC provides part of Deutsche Bank’s Code of Conduct and Ethics,

which states, inter alia, that “[w]e conduct our business in accordance with applicable

antitrust laws that are designed to advance fair competition and prohibit the misuse of

market power by individual companies.” SAC ¶ 217. Plaintiffs also point to Rabobank’s

13 Plaintiffs argue that their reasonable diligence could not have uncovered the conspiracy because (1)

Defendants’ trading positions and trading strategies in the EGB market are not publicly available; (2) the

bilateral, non-exchange traded nature of EGB transactions make observing anticompetitive behavior in that

market exceedingly difficult; (3) the highly specialized and esoteric nature of the different aspects of the

EGB market makes it exceedingly difficult for an ordinary person to assess improprieties; (4) neither

Defendants nor their co-conspirators told Plaintiffs or other Class members that they were conspiring to fix

or otherwise manipulate the prices of EGBs; and (5) Plaintiffs and members of the Class were not parties to

the communications of Defendants and their co-conspirators in private chatrooms in which they agreed to

fix the price of EGBs. SAC ¶ 214. �ey argue that only after the European Commission publicly

announced its preliminary findings of price collusion on December 6, 2022, did they have a sufficient basis

to investigate Defendants possible collusion. SAC ¶ 213.

“Banker’s Oath,” which requires all employees to swear that they will “comply with the

laws, regulations and codes” that apply to them.14 Id.

Defendants contend that “such representations are a far cry from the ‘affirmative

representations’ disavowing anticompetitive behavior” previously held to be sufficient in

EGB I. Doc. 64 at 25. But this argument misses the mark. Defendants are correct that in

EGB I, the court highlighted certain defendants’ codes of conduct containing language

that more strongly disavowed anticompetitive behavior than in the instant case. For

example:

“[T]hat traders should ‘exercise extreme caution to avoid conduct

that might violate antitrust laws or other rules prohibiting anticom-

petitive activities... Employees must avoid any discussion with com-

petitors of proprietary or confidential information, business plans or

topics such as pricing or sales policies -- the discussion of which

could be viewed as an attempt to make joint rather than independent

business decisions’; and that employees are bound by prohibitions

on transactions that ‘secure, by a person, or persons acting in col-

laboration, the price of one or several financial instruments at an ab-

normal or artificial level[.]’”

EGB I at 11 (quoting TAC ¶ 260). Nevertheless, the court also accepted the language in

the other defendants’ codes of conduct more akin to the language here. For example,

defendant UBS’s Code of Conduct and Ethics stated that its employees “obey[] the laws,

rules and regulations of the areas where we live, work and do business” and that they “act

in the interest of fair and effective competition and respect all the laws, rules and

regulations that are designed to create a level playing field for all – including antitrust and

competition laws.” See EGB I, Doc. 410 ¶ 482. Further, defendant UniCredit’s Code of

Ethics stated that its employees “are required to comply with the rules applicable in all

countries in which the Bank operates and/or in which they [] provide their work on behalf

and/or in the interest of the Bank.” Likewise, all employees “are required to conduct

14 Plaintiffs allege that the “Bankers Oath” has been required by executive and supervisory boards at

Rabobank since 2013, and by all Rabobank employees since the first half of 2015. SAC ¶ 217.

their business in full compliance with any applicable competition laws and regulations.”

Id.

What was determinative in EGB I was not the strength of the language

disavowing anticompetitive behavior but rather that plaintiffs had alleged reliance on

defendants’ false representations disavowing anticompetitive conduct. Id. at 11.

Likewise, in EGB II, the court held that “where a plaintiff relies on misrepresentations of

above-board behavior, allegations about their reliance on those false reassurances can

prove sufficient due diligence to withstand a motion to dismiss.” Id. at 13.

Likewise, while Plaintiffs’ allegations of due diligence here are not extensive, they

are adequate at the pleading stage. �erefore, Plaintiffs have sufficiently alleged

fraudulent concealment and Defendant’s motion to dismiss based on the statute of

limitations is DENIED.

B. Plaintiffs Fail to State a Claim Under § 1 of the Sherman Act

v. Antitrust Standing

Defendants argue that the SAC fails to plausibly plead antirust standing as

required under Section 1 of the Sherman Act. Doc. 64 at 18.

“Section 4 of the Clayton Act establishes a private right of action to enforce § 1 of

the Sherman Act and entitles ‘[a]ny person who [is] injured in his business or property by

reason of anything forbidden in the antitrust laws’ to treble damages for those injuries.”

In re Interest Rate Swaps Antitrust Litig., 261 F. Supp. 3d 430, 490 (S.D.N.Y. 2017)

(quoting Gatt Commc'ns, Inc. v. PMC Assocs., LLC, 711 F.3d 68, 75 (2d Cir. 2013)). A

plaintiff asserting an antitrust claim under federal law must establish antitrust standing in

addition to Article III standing. Gelboim v. Bank of Am. Corp., 823 F.3d 759, 770 (2d Cir.

2016). “In determining antitrust standing, [courts] ‘assume[ ] the existence’ of an

antitrust violation.” Harry v. Total Gas & Power N. Am., Inc., 889 F.3d 104, 115 (2d Cir.

2018) (quoting Gelboim, 823 F.3d at 770). �e Second Circuit has held that to survive a

motion to dismiss, a private antitrust plaintiff must plausibly allege (1) it suffered an

antitrust injury, and (2) it is an “efficient enforcer” of the antitrust laws. In re Aluminum

Warehousing Antitrust Litig., 833 F.3d 151, 157 (2d Cir. 2016).

Antitrust Injury

“Identification of an antitrust injury involves a ‘three-step process’ in which, first

the plaintiff must ‘identify the practice complained of and the reasons such a practice is

or might be anticompetitive’; then the court must ‘identify the actual injury the plaintiff

alleges’ by ‘look[ing] to the ways in which the plaintiff claims it is in a worse position as

a consequence of defendant's conduct’; and finally, the court must ‘compare the

anticompetitive effect of the specific practice at issue to the actual injury the plaintiff

alleges.’” In re Google Digital Advertising Antitrust Litig., No. 21-CV-3446 (PKC), 2024

WL 895155, at *5 (S.D.N.Y. Mar. 1, 2024) (quoting Gatt, 711 F.3d at 76). “Competitors

and consumers in the market where trade is allegedly restrained are presumptively the

proper plaintiffs to allege antitrust injury.” In re Aluminum Warehousing Antitrust Litig.,

833 F.3d at 158 (quotation marks omitted).

Plaintiffs assert that they purchased and sold EGBs in the secondary market,

directly transacting with Defendants and their co-conspirators—"both on their own and

acting through their subsidiaries and affiliated entities as agents”—at bid-ask spreads

allegedly fixed by those same Defendants and co-conspirators. SAC ¶¶ 5, 6, 11, 23, 40,

49, 51-53, 61, 66; see also Doc. 69 at 17. As direct consumers in an alleged horizontal

price-fixing conspiracy, Plaintiffs have plausibly alleged antitrust injury. Gelboim, 823

F.3d at 773, 777 (“[Plaintiffs] are consumers claiming injury from a horizontal price-

fixing conspiracy. �ey have accordingly plausibly alleged antitrust injury.”); See also In

re GSE Bonds Antitrust Litig., 396 F. Supp. 3d 354, 367 (S.D.N.Y. 2019).

Defendants contend that the Court should interpret the Second Circuit in Harry to

hold that Plaintiffs in this case lack antitrust standing because they have failed to plead

facts adducing the anticompetitive effects of the specific practice at issue. See Harry, 889

F.3d at 115; Doc 64 at 19. �e Court does not agree. As noted in EGB I, “the Harry

Court did not state that specific transactions must necessarily be pled in every antitrust

case.” Id. at 13. Plaintiffs, having “allege[ed] “that the injury they suffered was in the

very market that the [D]efendants restrained,” are deemed to have suffered the antitrust

injury. Eastman Kodak Co. v. Henry Bath LLC, 936 F.3d 86, 95 (2d Cir. 2019); see also

In re GSE, 396 F. Supp. 3d at 366–67 (rejecting challenge to antitrust standing based on

failure to allege specific transactions affected where “the complaint alleges that plaintiffs

participated in GSE Bond transactions during the class period with at least several of the

defendants”).

Efficient Enforcer

“A plaintiff that has plausibly alleged antitrust injury must also plausibly allege

that it is an efficient enforcer of the antitrust laws.” Gelboim, 823 F.3d at 772. Whether a

plaintiff is an efficient enforcer depends on: (1) the directness or indirectness of the

asserted injury; (2) the existence of more direct victims or the existence of an identifiable

class of persons whose self-interest would normally motivate them to vindicate the public

interest in antitrust enforcement; (3) the extent to which the claim is highly speculative;

and (4) the importance of avoiding either the risk of duplicate recoveries on the one hand,

or the danger of complex apportionment of damages on the other. In re Am. Express Anti-

Steering Rules Antitrust Litig., 19 F.4th 127, 138 (2d Cir. 2021) (internal quotation marks

omitted). “[T]he weight to be given the various factors will necessarily vary with the

circumstances of particular cases.” In re Platinum & Palladium Antitrust Litig., 61 F.4th

242, 259 (2d Cir. 2023), cert. denied sub nom. BASF Metals Ltd. v. KPFF Inv., Inc., 144

S. Ct. 681, 217 L. Ed. 2d 382 (2024) (quoting Associated General Contractors of

California, Inc. v. California State Council of Carpenters (AGC), 459 U.S. 519, 534

(1983)). “[T]he efficient-enforcer inquiry remains, fundamentally, one into proximate

cause[.]” In re Am. Express Anti-Steering Rules Antitrust Litig., 19 F.4th 127, 139 (2d

Cir. 2021); see Lotes Co. v. Hon Hai Precision Indus. Co., 753 F.3d 395, 412 (2d Cir.

2014).

Contrary to Defendant’s assertions, the first two factors are met. �e SAC alleges

that Plaintiffs directly transacted for EGBs with Defendants, purchasing or selling them at

prices fixed by Defendants and their co-conspirators. SAC ¶¶ 11, 51-53, 58, 66; see also

Doc. 69 at 20. �erefore, there is no break in the chain of causation between the alleged

conspiracy and Plaintiffs. See Sonterra Capital Master Fund, Ltd. v. Barclays Bank PLC,

366 F. Supp. 3d 516, 532–33 (S.D.N.Y. 2018) (“�e first factor addresses the ‘directness

or indirectness of the asserted injury,’ which ‘requires evaluation of the chain of causation

linking [plaintiff's] asserted injury and the [defendants’] alleged price-fixing.’”).

Similarly, Plaintiffs, being closely positioned to the harm caused by Defendants, are best

situated to vindicate their antitrust claims against them. See In re Am. Express Anti-

Steering Rules Antitrust Litig., 19 F.4th 127, 141 (2d Cir. 2021 (quoting Associated

General Contractors of California, Inc., 459 U.S. at 535-36 (1983)) (“For this factor, we

ask whether “[d]enying the [plaintiff] a remedy on the basis of its allegations” is “likely

to leave a significant antitrust violation undetected or unremedied.”); see IQ Dental

Supply, Inc. v. Henry Schein, Inc., 924 F.3d 57, 65 (2d Cir. 2019) (“[T]he presence of

plaintiffs who are better situated to vindicate the antitrust laws,” though not dispositive,

“is relevant to this second factor.”). Although Defendants do not dispute them, the third

and fourth factors are also met. Damages in this case would not be speculative and there

is no concern for duplicate damages.

Defendants contend that Plaintiffs are not efficient enforcers regarding RSUI

because Plaintiffs fail to allege transactions with RSUI. Doc 61 at 21. For the same

reason, Defendants maintain that Plaintiff Local 103 is not an efficient enforcer regarding

CRUA or DBSI. Doc 61 at 21. In EGB I, the court held that plaintiffs were not efficient

enforcers as to three defendants “with whom they did not alleged[ly] transact, either

directory or indirectly.” Id. at 14. Although the court assumed the defendant’s

involvement in the conspiracy—as they must in the antitrust standing context15—it

determined that any misconduct would be indirect regarding plaintiffs and more direct

regarding parties with whom defendants had directly transacted. See id. �e court,

therefore, held that allowing plaintiffs to proceed as efficient enforcers against those

defendants “might risk speculative assessments of injury or complex apportionment of

damages.” Id. �is Court agrees with that reasoning.16 �e SAC alleges no direct

transactions between any of the named Plaintiffs and RSUI. �erefore, the Court is

unpersuaded that Plaintiffs would be efficient enforcers against RSUI. Likewise, the SAC

does not allege direct transactions between Local 103 and either DBSI or CRUA. SAC

¶¶ 51, 53. Accordingly, the Court dismisses Plaintiffs’ § 1 claims against RSUI and

dismisses Local 103’s § 1 claims against DBSI and CRUA. All other Plaintiffs are

efficient enforcers against the remaining Defendants, including claims by Ohio

Carpenters and SBCER against DBSI and CRUA, and therefore their claims remain.

SAC ¶¶ 51, 53, 66.

vi. Conspiracy

Defendants argue that Plaintiffs failed to plausibly allege an antitrust conspiracy

under § 1 of the Sherman Act. Doc. 64 at 6.

“Section 1 of the Sherman Act bans restraints on trade ‘effected by a contract,

combination, or conspiracy.’” United States v. Apple, Inc., 791 F.3d 290, 314 (2d Cir.

2015) (quoting Twombly, 550 U.S. at 553, 127 S.Ct. 1955). To state a claim under § 1 of

the Sherman Act, a complaint must contain sufficient factual matter that, taken as true,

would support an inference that a conspiracy existed. See In re Mexican Government

Bonds Antitrust Litig., 412 F. Supp. 3d 380, 387–88 (S.D.N.Y. 2019). “�e crucial

15See Harry v. Total Gas & Power N. A., Inc., 889 F.3d 104, 115 (2d Cir. 2018) (In determining antitrust

standing, we assume the existence of an antitrust violation).

16 �e court also cited Sonterra Capital Master Fund Ltd. v. Credit Suisse Group AG, 277 F. Supp. 3d 521,

558–59 (S.D.N.Y. 2017) and FrontPoint Asian Event Driven Fund, L.P. v. Citibank, N.A., No. 16 Civ. 5263,

2018 WL 4830087, at *5 (S.D.N.Y. Oct. 4, 2018) for the proposition that plaintiffs are not efficient

enforcers against defendants with whom they did not directly transact.

question” in a case raising a violation of § 1 is “whether the challenged conduct ‘stem[s]

from [an] independent decision or from an agreement, tacit or express.’” Starr v. Sony

BMG Music Entertainment, 592 F.3d 314, 321 (2d Cir. 2010) (quoting Theatre

Enterprises, Inc. v. Paramount Film Distribution Corp., 346 U.S. 537, 540 (1954))

(alteration in original). Courts examine the existence of a conspiracy “as a whole” taking

into consideration the totality of the evidence, as opposed to “dismembering it and

viewing its separate parts.” Continental Ore Company v. Union Carbide & Carbon

Corporation, 370 U.S. 690, 699 (1962); see also In re Publication Paper Antitrust Litig,

690 F.3d 51, 65 (2d Cir. 2012).

A plaintiff may prove that an agreement exists through “direct or circumstantial

evidence that reasonably tends to prove that the [defendants] had a conscious

commitment to a common scheme designed to achieve an unlawful objective.”

Cenedella v. Metropolitan Museum of Art, 348 F. Supp. 3d 346, 358 (S.D.N.Y. 2018)

(quoting Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 764, 104 S.Ct. 1464, 79

L.Ed.2d 775 (1984). “Under Twombly, parallel conduct… may constitute circumstantial

evidence of anticompetitive behavior.” In re Musical Instruments & Equipment Antitrust

Litig., 798 F.3d 1186, 1193 (9th Cir. 2015) (citing Twombly, 550 U.S. at 553-54). But a

complaint that merely alleges parallel conduct among defendants—even consciously

parallel conduct—does not state a claim under § 1. See In re Amazon.com, Inc. eBook

Antitrust Litig., No. 21-cv-00351 (GHW) (VF), 2022 WL 4581903, at *11 (S.D.N.Y. Aug.

3, 2022), report and recommendation adopted sub nom. In re Amazon.com, Inc. Ebook

Antitrust Litig., No. 21-cv-00351 (GHW) (VF), 2022 WL 4586209 (S.D.N.Y. Sept. 29,

2022); see also Twombly, 550 U.S. at 553-54. Instead, allegations of parallel conduct

“gets the complaint close to stating a claim, but without some further factual

enhancement it stops short of the line between possibility and plausibility of entitlement

to relief.” Twombly, 550 U.S. at 557 (international quotation marks, alteration, and

citation omitted); see also Iqbal, 556 U.S. at 678.

Rule 12(b)(6) “does not impose a probability requirement at the pleading stage; it

simply calls for enough fact [sic] to raise a reasonable expectation that discovery will

reveal evidence of illegal agreement.” Twombly, 550 U.S. at 556. However, “[p]ost-

Twombly authorities overwhelmingly hold that a complaint that provides no basis to infer

the culpability of the specific defendants named in the complaint fails to state a claim.”

In re Mexican Government Bonds, 412 F. Supp. 3d at 388 (emphasis in original).

In the SAC, Plaintiffs do not allege direct evidence of a conspiracy. Instead,

Plaintiffs attempt to provide a basis for inferring an agreement by alleging parallel

conduct, “accompanied by circumstantial evidence and plus factors.” Id. (“An antitrust

plaintiff can overcome a motion to dismiss… [if they] provide a basis for inferring an

agreement by alleging “conscious parallelism, when such interdependent conduct is

accompanied by circumstantial evidence and plus factors.”); See In re Musical

Instruments & Equipment Antitrust Litig., 798 F.3d 1193; see also Bookends &

Beginnings LLC v. Amazon.com, Inc., No. 21-CV-02584 (VF), 2022 WL 18144916, at *7

(S.D.N.Y. Aug. 24, 2022). In support of their allegations of parallel conduct, Plaintiffs

proffer allegedly statistically significant evidence of collusion within the secondary

market for Dutch EGBs from 2005 through 2017. SAC ¶¶ 175-186. Plaintiffs provide a

chart (Figure 7) indicating that Defendants’ average collective bid-ask spreads had

narrowed at a “four to five times” greater magnitude than those of a non-defendant

control group the year following the end of the Class Period. Doc. 69 at 10. �is parallel

change in quoting behavior, they argue, “suggests that Defendants conspired to maintain

artificially wide bid-ask spreads during the Class Period.” SAC ¶ 186.

Defendants challenge the sufficiency of Figure 7, noting that, unlike the statistical

analyses provided in EGB II, which included additional information analyzing the market

during the alleged conspiracy, Plaintiffs’ submission here only analyzes the bid-ask

spread change one year after the Class Period. See No. 19 CIV. 2601 (VM), 2022 WL

768680, at *1 (S.D.N.Y. Mar. 14, 2022); Doc. 64 at 13. Defendants argue that by only

analyzing the bid-ask spread change the year following the Class Period, without

additional inter-Class Period evidence—like in EGB II—the SAC doesn’t allow for any

inferences regarding “collusive activity on bid-ask spreads [] for the preceding twelve-

year Class [P]eriod.” Doc. 73 at 5 (quoting Hinds County v. Wachovia Bank N.A., 708 F.

Supp. 2d 348 361 (S.D.N.Y. 2010).

In response, Plaintiffs argue that their analysis is “materially similar” to the

analysis accepted by the court in EGB II. Doc. 69 at 10. However, Plaintiffs

mischaracterize the court’s analysis. Before accepting the post-class period statistics—

which Plaintiffs alone proffer in the instant case—the court first analyzed plaintiffs’

statistical evidence during the class period and determined that they had sufficiently

“rais[ed] a reasonable inference that [d]efendants generally moved in concert to deviate

from market prices during the [c]lass [p]eriod.”17 Id. at 19. Upon finding parallel

conduct amongst the group of defendants, the court held that “to survive a motion to

dismiss, [p]laintiffs must also allege…” that each defendant, independently, was involved

in the parallel pricing scheme. Id.; see also EGB I at 16. Only then did the court

consider the chart similar to Figure 7, proffered here. See id.

In the present case, Plaintiffs ask the Court to find parallel conduct during the

Class Period without information sufficiently analyzing activity during that time. From

the proffered post-Class Period statistics alone, the Court has no way of inferring activity

during the Class Period in order to plausibly allege parallel conduct. Additionally,

without sufficiently alleging parallel conduct, Plaintiffs circumstantial evidence and plus

factors are insufficient alone to allow the Court to infer an agreement between

Defendants. Accordingly, Plaintiffs have failed to sufficiently show circumstantial

evidence of a conspiracy under § 1 of the Sherman Act by parallel conduct.

17 In this initial step, the court accepted plaintiffs’ data grouping the defendants together to show that they,

relative to non-defendants, had acted in parallel to deviate from market prices during the alleged class

period.

As an alternative to direct evidence of an agreement or parallel conduct, Plaintiffs

assert that “allegations that ‘evince a common motive to conspire’ combined with ‘a high

number of interfirm communications’ are adequate to plead a conspiracy.” Doc. 69 at 6,

7 (quoting In re Platinum, 61 F.4th at 270). However, Plaintiffs mischaracterize the

relationship between parallel conduct and ‘plus factors,’ the required additional

circumstantial evidence needed to infer the existence of a conspiracy. See Apex Oil

Company v. DiMauro, 822 F.2d 246, 253–54 (2d Cir.1987); see In re Platinum, 61 F.4th

at 270 (“[P]lus factors [], when combined with parallel [conduct], might permit a jury to

infer the existence of an agreement.”) (quoting Mayor & Council of Baltimore, Maryland

v. Citigroup, Inc., 709 F.3d 129, 136 (2d Cir. 2013); see Gelboim, 823 F.3d at 782.

Without sufficiently alleging “plus factors” under § 1 of the Sherman Act, there remains

an equally valid inference that the parallel conduct occurred due to independent action.

Id. Evidence of a common motive to conspire or of a high level of interfirm

communications are examples of plus factors. See Mayor & City Council, 709 F.3d at

136 (quoting Twombly v. Bell Atl. Corp., 425 F.3d 99, 114 (2d Cir. 2005), rev'd on other

grounds, Twombly, 550 U.S. 544). As stated above, without a sufficient showing of

parallel conduct, evidence of plus factors is insufficient to support the inference that a

conspiracy existed under § 1 of the Sherman Act. See In re Platinum, 61 F.4th at 277;

Apex Oil Company, 822 F.2d 254. Accordingly, Plaintiffs, having failed to establish an

agreement, have also failed to state a claim under § 1 of the Sherman Act.

C. Personal Jurisdiction

Given Plaintiff’s failure to plausibly state a claim under § 1 of the Sherman Act,

the Court declines to address the issue of personal jurisdiction regarding foreign

Defendants, CRUA and DBAG. See Chevron Corp. v. Naranjo, 667 F. 3d 232, 246, n.

17. (2d Cir. 2012) (“Ordinarily, we would address any challenge to personal jurisdiction

prior to deciding the merits of the cause of action. However, in cases such as this one

with multiple defendants–over some of whom the court indisputably has jurisdiction–in

which all defendants collectively challenge the plaintiff's cause of action, we may address

first the facial challenge to the underlying cause of action and, if we dismiss the claim in

its entirety, decline to address the personal jurisdiction claims made by some

defendants.”). See also In re Rationis Enterprises, Inc. of Panama, 261 F.3d 264, 267-68

(2d Cir. 2001).

IV. CONCLUSION

For the foregoing reasons, Defendant’s Motion to Dismiss is GRANTED for

failure to state a claim.

Plaintiffs are directed to inform the Court within twenty-one days of this Order

whether they have cause to amend the SAC, or the case will be closed.

The Clerk of Court is respectfully directed to terminate the motion, Doc. 63.

It is SO ORDERED.

Dated Noe York, New York bt \ i

~ EDGARDO RAMOS, U.S.DJ.

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