# Oklahoma Firefighters Pension and Retirement System v. Deutsche Bank Aktiengesellschaft

> District Court, S.D. New York · September 13, 2024

URL: https://www.frixlaw.com/law-library/cases/10662559

## Case

- **Court:** District Court, S.D. New York
- **Decided:** September 13, 2024
- **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
────────────────────────────────────
OKLAHOMA FIREFIGHTERS PENSION AND
RETIREMENT SYSTEM,
23-cv-5095 (JGK)
Plaintiff,
MEMORANDUM OPINION AND
- against - ORDER

DEUTSCHE BANK AKTIENGESELLSCHAFT
(F/K/A DEUTSCHE BANK AG), ET AL.,

Defendants.
────────────────────────────────────
JOHN G. KOELTL, District Judge:

The plaintiff, Oklahoma Firefighters Pension and Retirement
System, a public pension fund for Oklahoma firefighters, brought
this putative class action against five banks and their United
States affiliates. The five banks are Deutsche Bank
Aktiengesellschaft (“DBAG”), Citigroup Global Markets Limited
(“CGML”), RBC Europe Limited (“RBC”), HSBC Bank Plc (“HSBC
Bank”), and Morgan Stanley & Co. International Plc (“MS
International”) (together, the “GEMM Banks”). Complaint
(“Compl.”), Dkt. No. 1 ¶ 25. Their respective United States
Affiliates are Deutsche Bank Securities Inc., Citigroup Global
Markets Inc. (“CGMI”), RBC Capital Markets, LLC, HSBC Securities
(USA) Inc., and Morgan Stanley & Co. LLC. Id.
The plaintiff alleges that the defendants conspired from
January 1, 2009 through December 31, 2013 (the “Class Period”),
in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1, to
fix the price of Gilts, which are government bonds issued by His
Majesty’s Treasury through the United Kingdom Debt Management
Office (“DMO”).
The defendants move to dismiss the putative class action
complaint under Federal Rules of Civil Procedure 12(b)(1),

12(b)(2), 12(b)(3), and 12(b)(6). First, all the defendants
argue that the complaint (1) fails to state a claim, (2) fails
to plead antitrust standing, and (3) is time-barred. Second, the
foreign-entity defendants contend that this Court lacks personal
jurisdiction over them. Third, several foreign defendants claim
that venue is improper in this District. For the reasons
explained below, the motion to dismiss for failure to state a
claim is granted and the complaint is dismissed without
prejudice.
I.
The following description of the factual allegations in the
complaint is accepted as true for purposes of the current

motion.
Gilts are sovereign debt securities denominated in British
pound sterling and issued by the United Kingdom government.
Compl. ¶¶ 12. The DMO handles the issuance process. Id. ¶ 75. By
2014, seventy-two issued Gilts had not yet reached maturity. Id.
¶ 77. Their outstanding value totaled almost one-and-a-half-
trillion sterling pounds. Id. Persons residing in the United
Kingdom held about seventy percent of that value. See id. There
is, however, an active market for Gilts in the United States.
Id. ¶ 93.
Two types of Gilts exist: conventional Gilts and index-
linked Gilts. Id. ¶ 76. Conventional Gilts pay the holder a

fixed cash payment—a coupon—every six months until the maturity
date, at which point the holder receives the final coupon and
the principal. Id. Index-linked Gilts differ in that they adjust
coupons and the principal to account for accrued inflation from
the issue date. See id. During the relevant period, conventional
Gilts comprised approximately seventy-five percent of Gilts in
issue. Id. The maturity date for Gilts can vary widely, ranging
from as little as several months up to fifty-five years. See id.
¶ 77. But most Gilts are long-term bonds. See id.
As with other bonds, dealers and investors price Gilts
based on their par value, coupon, maturity date, and yield. Id.
¶ 103. Lowering a bond’s price increases its yield—the return

that an investor receives by holding the bond to maturity—and
makes its yield competitive with prevailing interest rates. Id.
¶¶ 103–06.
A.
Gilt dealers operate in two markets. In the primary market,
the United Kingdom government issues Gilts at auction. Id. ¶ 3.
For conventional Gilts, the United Kingdom government conducts a
multiple-price auction, where bidders specify the quantity of
bonds they wish to purchase and the prices they are willing to
pay. Id. ¶ 83. The DMO then determines the cutoff yield or price
and accepts the bids above the cutoff. See id. For index-linked
Gilts, the DMO conducts a single-price auction. Id. ¶ 84.

To ensure active participation in primary-market auctions,
the DMO selects a discrete number of banks to serve as Gilt-
edged Market Makers (“GEMMs”). Id. ¶ 85. As of 2013, twenty-one
banks operated as GEMMs, including banks from all five banking
groups named as defendants in this action. Id. ¶ 16. The DMO
obligates GEMMs, once selected, to play an active role in the
issuance, distribution, and marketing of Gilts. Id. ¶ 87. More
specifically, the DMO expects each GEMM to purchase—and requires
each to bid on—at least two percent of both conventional Gilts
and index-linked Gilts on a six-month-rolling-average basis. Id.
And ahead of each specific issuance auction, the DMO designates
a specific number of GEMMs as market makers who must

participate. Id. This ensures that the DMO sells all the Gilts
it auctions at every auction. Id.
The DMO monitors and ranks the performance of GEMMs in
Primary Market auctions. Id. ¶ 91. To achieve a higher ranking,
GEMMs must bid on large amounts of the auctioned bonds at high
prices. See id. The DMO rewards high-ranked GEMMs with financial
incentives; namely, opportunities to participate in even more
lucrative transactions. Id. ¶ 92.
After Gilts are issued in the primary market, bond dealers
and investors trade the security in the secondary market. Id. ¶
93. Participants in the secondary market include various funds,

banks, companies, and state and local governments. Id. Trades
for Gilts occur over the counter, id., meaning that customers
seeking to buy or sell must contact one or more banks directly
and request pricing. Id. ¶ 96.
The difference between the quoted price at which a dealer
will buy a given Gilt outside an auction (the “bid” price) and
the quoted price at which it will sell the same Gilt (the “ask”
price) is called the bid-ask spread. Id. Dealers can earn
profits by collecting the difference between the bid and ask
prices. Id.
The secondary market always stays liquid because the DMO
expects GEMMs to buy and sell on demand all Gilts in which they

have been recognized as a primary dealer. Id. ¶ 95. In addition,
the DMO expects each GEMM to maintain a minimum individual
market share of Gilts available to trade on the secondary
market. Id.
In a free-flowing market, Gilt dealers compete for
customers based on their bid-ask spreads. Id. ¶ 98. Banks that
narrow their spreads—in other words, lower profit margins—gain
customers and business. Id. Conversely, banks that widen their
spreads can earn higher profit margins but risk losing their
customers to rivals that offer narrower spreads. See id.
B.
1.

According to the plaintiff, the GEMM Banks acted as each
banking group’s primary dealer for Gilts during the Class Period
through dealers stationed in London, United Kingdom. Id. ¶¶ 99–
100. The GEMM Banks acquired Gilts in the primary market and
priced trades in the secondary market, distributing Gilts as
needed to fill customer orders through their sales and trading
networks. Id. ¶ 100.
Globally, sales personnel at financial trading hubs like
New York City would interact with investors, manage client
relationships, and administer customer orders. Id. Each United
States Affiliate acted as the American trading hub for each of
the five banking groups during the Class Period. Id. However,

the Foreign Defendants sometimes transacted directly with United
States customers, and at other times transacted with United
States customers through their respective United States
Affiliates. Id. ¶ 102.
The plaintiff alleges that it entered into Gilt
transactions with HSBC Bank, HSBC Securities (USA) Inc., and
CGMI during the five-year Class Period, although the plaintiff
has failed to set forth the details of any purchase or sale of
any Gilt from any defendant at any time. See id. ¶ 28. In
addition, the plaintiff purports to represent a class of all
persons or entities who purchased or sold Gilts in the United
States directly from the defendants during the Class Period. Id.

¶¶ 177–84. The plaintiff excepts from the putative class the
defendants, their employees, affiliates, parents, subsidiaries,
and co-conspirators, as well as the United States Government.
Id. ¶ 177.
2.
The plaintiff alleges that the defendants formed a
horizontal conspiracy to widen artificially the bid-ask spreads
in the secondary market in the United States. Id. ¶¶ 1, 4–6,
107. The plaintiff claims that, pursuant to this conspiracy, the
defendants’ traders first manipulated the price and allocation
of bonds in the primary market. Id. ¶ 112. Then, the defendants
raised their asks and lowered their bids in the secondary

market, acting in concert with the other defendants to extract
additional profits from their customers. Id. ¶¶ 4, 9, 108, 112.
The defendants allegedly carried out this conspiracy by
exchanging highly sensitive information over private chatrooms:
allocations in the primary market, bidding and trading
strategies, customer-order information, their real-time bid and
ask prices, and executed-trade prices. Id. ¶¶ 5–6, 107, 110.
Traders from the other four banks would share confidential
pricing and strategic information with the DBAG trader, who
would then disseminate the information in one-to-one chatrooms
back to the several informants. Id. ¶ 113. Although the
plaintiff says the chatroom exchanges occurred frequently, id. ¶

114, the complaint does not allege specifically when they took
place, nor the content of the communications. Indeed, the
plaintiff fails to allege the contents of any specific
conversation.
3.
In support of its alleged conspiratorial scheme, the
plaintiff offers three main types of evidence. First, the
plaintiff offers circumstantial evidence about the structure of
the Gilt market. It alleges that: prospective dealers face high
barriers to entry, id. ¶¶ 134–35, customers make very large,
infrequent transactions at regular intervals, id. ¶¶ 136–38, and
customers rely on quotes from individual dealers, id. ¶¶ 139–40.

Additionally, the plaintiff alleges that the defendants’ Gilt
traders are closely networked from lateral employment moves,
repetitive dealings, and DMO-sanctioned conferences. Id. ¶¶ 144–
45. The plaintiff also alleges that the defendants’ traders
maintained a high level of direct interfirm communications,
which the defendants failed to monitor despite having the means
to do so. Id. ¶¶ 146–47.
The plaintiff further points out that, as alleged, the
defendants acted contrary to their individual economic
interests. Id. ¶¶ 142–43. By widening their spreads, banks
risked losing customers and GEMM status. Id. And banks that
shared proprietary information did so knowing that their rivals

could profit directly from the anticipated trade to the sharing
bank’s detriment. Id.
Second, the plaintiff claims that Gilt yield curves were
lower during the Class Period, namely 2009 to 2013, when
compared to the two preceding years, namely 2007 and 2008. Id. ¶
148 Fig. 6. The plaintiff concedes, however, that other economic
factors influenced the yield curves and prices of Gilts. Id. ¶
149. For example, the plaintiff concedes that the Bank of
England began quantitative easing in 2009, the first year of the
alleged conspiracy. Id. ¶ 78. Through the practice of
quantitative easing, the Bank of England attempted to combat
inflation by purchasing bonds to drive up their prices, thereby

lowering their yields. Id. Nevertheless, the plaintiff claims
that because the defendants’ alleged cartel comprised about
twenty percent of the total banks designated as GEMMs—five out
of twenty-one—the defendants exerted significant influence and
control over Gilt prices. Id. ¶ 149.
Third, the plaintiff highlights an ongoing United Kingdom
regulatory investigation. On May 24, 2023, the United Kingdom
Competition and Markets Authority (“CMA”), the United Kingdom’s
principal antitrust regulator, announced that it had issued a
Statement of Objections to each of the five defendants following
a five-year investigation which began in November 2018. Id. ¶
117. The CMA also shared its “provisional decision that . . .

[the five] global banks broke competition law by taking part in
a series of one-to-one online exchanges of competitively
sensitive information on pricing and other aspects of their
trading strategies on UK bonds.” Id. ¶ 120.
The accompanying Press Release specified that these
information exchanges “took place in one-to-one Bloomberg
chatrooms between a small number of traders who worked at the
banks,” and that the communications “included details on pricing
and other aspects of their trading strategies.” Id. ¶ 118. The
Press Release added that “[b]y unlawfully exchanging
competitively sensitive information rather than fully competing,
the banks involved in these arrangements could have denied the

full benefits of competition to those they traded with—including
among others, pension funds.” Id. ¶ 119. If in the future the
CMA confirms that a violation occurred, some of the defendants
may face substantial fines. Id. ¶¶ 122–28.
Not all of the defendants may face substantial fines,
however, because as alleged, the CMA granted provisional
immunity under its leniency program to DBAG after DBAG
proactively alerted the CMA to its participation in the
information-sharing scheme. Id. ¶¶ 129–30. CGML then also
applied for leniency and received a discount on any future fines
conditioned on continued cooperation. Id. ¶ 131. CGML
additionally reached a settlement with the CMA which will apply

a further, separate discount to any future fines. Id. These
developments are notable because the plaintiff alleges that the
CMA extends leniency to antitrust cooperators only if the
immunity recipient or settling party admits its participation in
and submits evidence of a cartel in violation of United Kingdom
competition law. Id. ¶ 132.
The plaintiff further alleges that certain defendants have
been fined, sanctioned, pleaded guilty to, or are under
investigation for various other antitrust violations. Id. ¶¶
150–76.
C.
The plaintiff filed this lawsuit on June 16, 2023. The

plaintiff claims it could not have brought this action sooner
because the defendants fraudulently concealed their conduct. Id.
¶¶ 185–93. On September 28, 2023, the defendants filed the
present motion to dismiss. See Joint Mot., Dkt. No. 62.
II.
A.
In deciding a Rule 12(b)(6) motion to dismiss for failure
to state a claim, the Court must accept the allegations in the
complaint as true and draw all reasonable inferences in the

plaintiff’s favor. McCarthy v. Dun & Bradstreet Corp., 482 F.3d
184, 191 (2d Cir. 2007). The Court’s function on a motion to
dismiss is “not to weigh the evidence that might be presented at
a trial but merely to determine whether the complaint itself is
legally sufficient.”1 Goldman v. Belden, 754 F.2d 1059, 1067 (2d
Cir. 1985). To survive a motion to dismiss, the plaintiff’s
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 (2009). “A claim has facial
plausibility 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.

While the Court should construe the factual allegations in
the light most favorable to the plaintiff, “the tenet that a
court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions.” Id. When
presented with a motion to dismiss pursuant to Rule 12(b)(6),

1 Unless otherwise noted, this Memorandum Opinion and Order omits all internal
alterations, citations, footnotes, and quotation marks in quoted text.
the Court may consider documents that are referenced in the
complaint, documents that the plaintiff relied on in bringing
suit and that are either in the plaintiff's possession or that
the plaintiff knew of when bringing suit, or matters of which
judicial notice may be taken. See Chambers v. Time Warner, Inc.,

282 F.3d 147, 153 (2d Cir. 2002).
B.
An antitrust plaintiff can survive a motion to dismiss in
two ways. First, a plaintiff can “assert direct evidence that
the defendants entered into an agreement in violation of the
antitrust laws,” with the classic example being “a recorded
phone call in which two competitors agreed to fix prices at a
certain level.” Mayor & City Council of Balt. v. Citigroup,
Inc., 709 F.3d 129, 136 (2d Cir. 2013). “But, in many antitrust
cases, this type of ‘smoking gun’ can be hard to come by,
especially at the pleading stage.” Id. Accordingly, a complaint
may provide a basis for inferring an agreement by alleging

“conscious parallelism, when such interdependent conduct is
accompanied by circumstantial evidence and plus factors.” Id.
Plus factors may include facts like “a common motive to
conspire, evidence that shows that the parallel acts were
against the apparent individual economic self-interest of the
alleged conspirators, and evidence of a high level of interfirm
communications.” Id.
“An antitrust complaint that fails to connect each or any
individual entity to the overarching conspiracy . . . cannot
ordinarily survive a motion to dismiss.” In re Mexican Gov't
Bonds Antitrust Litig. (“MGB”), 412 F. Supp. 3d 380, 388
(S.D.N.Y. 2019). To state a claim post-Twombly, a complaint must

provide a basis to infer “the culpability of the specific
defendants named in the complaint.” Id. “[C]laims as to the
motivations or actions of [the defendants] as a general
collective bloc, or generalized claims of parallel conduct, must
also be set aside . . . as impermissible group pleading.” In re
Interest Rate Swaps Antitrust Litig., No. 16-MC-2704, 2018 WL
2332069, at *15 (S.D.N.Y. May 23, 2018).
Although courts “traditionally treat personal jurisdiction
as a threshold question to be addressed prior to consideration
of the merits of a claim, that practice is prudential and does
not reflect a restriction on the power of the courts to address
legal issues.” ONY, Inc. v. Cornerstone Therapeutics, Inc., 720

F.3d 490, 498 n.6 (2d Cir. 2013). “In cases involving multiple
defendants—over some of whom the court indisputably has personal
jurisdiction—in which all defendants collectively challenge the
legal sufficiency of the plaintiff’s cause of action,” courts
can proceed “directly to the merits on a motion to dismiss.” Id.
III.
Because this Court “indisputably has personal jurisdiction”
over the United States Affiliates, the Court proceeds directly
to the merits of the defendants’ joint motion to dismiss for
failure to state a claim upon which relief can be granted. See

id. “[T]his course of action is particularly appropriate where,
as here, the personal jurisdictional challenges are based on
factual allegations that are, in this early posture, still under
development.” Id.
A.
The plaintiff alleges that the defendants conspired to fix
Gilt spreads and carried out their conspiratorial scheme by
exchanging sensitive information over electronic chatrooms. More
specifically, the plaintiff alleges that “[d]uring the Class
Period, [the] [d]efendants entered into an agreement to reduce
competition among themselves by fixing and manipulating the
prices of Gilt Bonds sold in the United States,” in violation of

the Sherman Act, 15 U.S.C. §§ 1, et seq. Compl. ¶¶ 195–98. The
complaint alleges that this was a price-fixing conspiracy, id. ¶
196–98, which is a per se violation of Sherman Act § 1. United
States v. Socony-Vacuum Oil Co., 310 U.S. 150, 218 (1940).2
But the complaint “is made up of almost entirely conclusory
allegations and is essentially devoid of any evidence, direct or
circumstantial, to support the conclusion that [the defendants]

colluded with one another.” In re ICE LIBOR Antitrust Litig.
(“ICE LIBOR”), No. 19 Civ. 439, 2020 WL 1467354, at *4 (S.D.N.Y.
Mar. 26, 2020). There is not a single conversation or document
described in detail, nor any individual trade or pricing
decision reported with specificity.
1.
The plaintiff fails to allege direct evidence of a
conspiracy. “Direct evidence of a conspiracy is explicit and can
show one exists without any inferences.” City of Pontiac Police
& Fire Ret. Sys. v. BNP Paribas Sec. Corp., 92 F.4th 381, 391
(2d Cir. 2024). Here, the plaintiff points to the CMA’s
investigation into the defendants’ information exchange

2 Alternatively, the plaintiff alleges that the conspiracy was an unreasonable
restraint of trade because the conspiracy resulted in substantial
anticompetitive effects in the Gilt market with no legitimate business
justification for, nor procompetitive benefits from, the defendants’ conduct.
Compl. ¶¶ 195, 198. “The exchange of price data and other information among
competitors does not invariably have anticompetitive effects” and thus
“do[es] not constitute a per se violation of the Sherman Act.” See United
States v. U.S. Gypsum Co., 438 U.S. 422, 441 n.16 (1978). In restraint-of-
trade cases, courts apply the rule of reason and weigh harms against benefits
to determine whether the practice alleged is an “undue restraint.” Standard
Oil Co. of N.J. v. United States, 221 U.S. 1, 60–62 (1911). However, the
complaint fails to engage in any particularized factual analysis of the
alleged particular restraints on the United States secondary market for
Gilts, much less a comparison to justifications and benefits.
concerning Gilts. Compl. ¶¶ 117–28. It adds that under United
Kingdom law, both DBAG and CGML “admitted participation in a
cartel that agreed to prevent, restrict, or distort competition
in the Gilt Bonds market.” Id. ¶ 132.
The ongoing investigation, and even the cooperation of two

named defendants, is not direct evidence that any of the
defendants participated in the price-fixing conspiracy alleged
in this case. See In re Elevator Antitrust Litig., 502 F.3d 47,
51–52, 51 n.6 (2d Cir. 2007); MGB, 412 F. Supp. 3d at 389. A
foreign-government investigation cannot by itself “support an
allegation of a plausible conspiracy.” See In re European Gov’t
Bonds Antitrust Litig. (“EGB II”), No. 19 Civ. 2601, 2022 WL
768680, at *21 (S.D.N.Y. Mar. 14, 2022).
Moreover, the complaint overstates the CMA’s provisional
findings. The CMA is investigating the exchange of confidential
information in violation of United Kingdom regulations that
prevent such exchanges.3 CMA, CMA provisionally finds 5 banks

broke competition law on UK bonds, (May 24, 2023),
https://www.gov.uk/government/news/cma-provisionally-finds-5-
banks-broke-competition-law-on-uk-bonds (“Press Release”). There
is no finding that the banks conspired to fix spreads on Gilts
sold in the United States as alleged in this case. Id.

3 At oral argument, the plaintiff’s counsel conceded that the United Kingdom
competition law is “broader”—that is, renders illegal a wider range of
conduct—than section 1 of the Sherman Act.
Likewise, the wrongdoing that DBAG and CGML allegedly
admitted, and that the CMA provisionally found, is that the
defendants “unlawfully shared competitively sensitive
information.” Compl. ¶¶ 7, 132. “Information exchange is an
example of a facilitating practice that can help support an

inference of a price-fixing agreement,” not direct evidence of
one. See Todd v. Exxon Corp., 275 F.3d 191, 198 (2d Cir. 2001).
Chats that share sensitive information—at best—“suggest the
sharing of information that could lead to coordinated trading
and bidding,” not direct coordination itself. In re Treasury
Sec. Auction Antitrust Litig. (“Treasury II”), 595 F. Supp. 3d
22, 46 (S.D.N.Y. 2022), aff’d, 92 F.4th 381 (2d Cir. 2024). In
this case, no defendant admitted, nor did the CMA find, that any
defendant conspired over five years to fix the spread on Gilts
traded in the United States.
In this case, the complaint does not contain “the rare
smoking gun,” like chats that “unmistakably show traders, acting

on behalf of [the defendants], agreeing to fix prices at a
specific level.” Cf. In re GSE Bonds Antitrust Litig. (“GSE”),
396 F. Supp. 3d 354, 361 (S.D.N.Y. 2019); In re London Silver
Fixing, Ltd., Antitrust Litig., 332 F. Supp. 885, 892–94, 901
(S.D.N.Y. 2018). Accordingly, the complaint fails to set forth
direct evidence of a price-fixing conspiracy.
2.
Having alleged no direct evidence, the plaintiff must
“present circumstantial facts supporting the inference that a
conspiracy existed.” Mayor & City Council of Balt., 709 F.3d at
136. To do so, the plaintiff must plead (1) parallel conduct and

(2) “plus factors.” Id. Here, the plaintiff has failed to allege
any facts to show that the defendants engaged in parallel
conduct that suggests the existence of a price-fixing conspiracy
and each defendant’s participation in that conspiracy. See MGB,
412 F. Supp. 3d at 389.
The complaint does not identify any specific quote by any
defendant to any customer, nor does it plead that any two
defendants ever coordinated prices on Gilts traded in the United
States. Indeed, the complaint contains no individualized
allegations of any specific quotes, transactions, or chats. The
complaint is instead replete with conclusory group allegations
that the defendants “fixed bid-ask spreads on customer orders

for Gilt Bonds in the post-auction, secondary market,” and
orchestrated this price-fix “primarily through non-public,
invitation-only, cross-bank electronic chatrooms.” Compl. ¶ 107;
see also id. ¶¶ 4–5, 28, 177.
This kind of barebones group pleading of parallel conduct
is insufficient. Treasury II, 595 F. Supp. 3d at 44, 50–51.
Without any allegations relating to specific actions taken by
each defendant, group pleading fails to “tie[] each defendant to
the conspiracy” by showing that each defendant engaged in
parallel conduct. See GSE, 396 F. Supp. 3d at 364. The complaint
in this case does not substantiate its price-fixing claims with
any pricing or trading data specific to any defendant, and

therefore fails to “articulate a link between the[] allegations
and the specific defendants named in the complaint.” See MGB,
412 F. Supp. 3d at 389. The plaintiff fails to point to any
comparable complaint that has found parallel conduct absent
specific factual allegations of such parallel trading or
pricing.
The plaintiff notes correctly that it is not required to
plead statistical analyses at this stage of the litigation. But
the plaintiff must somehow establish parallel conduct in which
each defendant participated. See GSE, 396 F. Supp. 3d at 364–65
(“At this stage, a statistical analysis, like any other
allegation, need only be plausible.”). The plaintiff here fails

to do that with its single chart, which merely displays the
yield curve for Gilts during the Class Period and the two
preceding years.4 See Compl. ¶ 148 Fig. 6.
As the defendants correctly point out, the yield curves “do
not distinguish at all between defendant and non-defendant
dealers.” GSE, 396 F. Supp. 3d at 365. Such “aggregate

statistics do not alone suffice to impute wrongful conduct to
any particular defendant.” In re European Gov’t Bonds Antitrust
Litig. (“EGB I”), No. 19 Civ. 2601, 2020 WL 4273811, at *17
(S.D.N.Y. Jul. 23, 2020). Accordingly, “in the absence of any
other allegations that would allow the Court to infer the
participation of the individual [d]efendants, . . . the group
statistical pleadings cannot carry the day.” MGB, 412 F. Supp.
3d at 390.
Moreover, the plaintiff’s statistical allegations defeat
themselves. “[T]here is an obvious alternative explanation to
the alleged conspiratorial conduct” supposedly demonstrated by
the yield-curves chart. See Cenedella v. Metro. Museum of Art,

348 F. Supp. 3d 346, 359 (S.D.N.Y. 2018). The plaintiff argues
that the yield curves for Gilts fell after the defendants formed

4 At oral argument, and in a supplemental submission, Dkt. No. 82 at 2, the
plaintiff’s counsel conceded that the complaint included the yield curves to
demonstrate motive only, and not parallel conduct. But the complaint plainly
intended to use the chart to show both motive and parallel conduct.
Immediately following the yield-curves chart, the complaint alleges that the
“[d]efendants possessed enough market power to inflate the prices of Gilt
Bonds above what their true value would be, and was, in a competitive
market.” Compl. ¶ 149. In any event, the yield curves chart fails to
demonstrate parallel conduct.
a price-fixing conspiracy. But the complaint also alleges that
the “Bank of England actively participates in the Gilt Bonds
market through open market operations,” the Bank “first began
utilizing quantitative easing in March 2009,” and the “[u]se of
quantitative easing was widespread during the Class Period.”

Compl. ¶ 78.
Quantitative easing “involves purchasing bonds to push up
their prices” and “reduce long-term interest rates.” Id. Pushing
up bond prices lowers their yields. Id. ¶ 105. Therefore, by the
plaintiff’s own admission, quantitative easing is “an obvious
alternative explanation” for why yield curves fell during the
Class Period. See Cenedella, 348 F. Supp. 3d at 359. This
obvious explanation renders even less plausible the inference
that yield curves fell because the defendants conspired to fix
spreads.
The plaintiff’s failure to plead parallel conduct is even
more striking given the implausibly wide-ranging conspiracy

alleged. In Alaska Department of Revenue, Treasury Division v.
Manku, the plaintiffs alleged that the defendants formed a
“super-desk involving more than twenty entities in different
countries as well as individual traders, conspiring every day,
nearly all day, tainting every one of their trades for some
seven years.” No. 20-1759-cv, 2021 WL 3027170, at *4 (2d Cir.
Jul. 19, 2021) (summary ord.). Considering the all-encompassing
nature of the conspiracy alleged, the court called it “simply
not plausible.” Id.
As in Alaska Department, the plaintiff alleges a wide-
ranging conspiracy whereby the five defendant banking groups
tainted Gilt trades with their clients in the United States over

a five-year period. Compl. ¶¶ 5, 28, 107, 112, 177. The
plaintiff seeks to represent a class of “[a]ll persons or
entities who purchased or sold Gilt Bonds in the United States
directly from [the] [d]efendants from at least as early as
January 1, 2009, through at least December 31, 2013.” Id. ¶ 177.
Here, as in Alaska Department, the Court must “evaluate [the
plaintiff’s] claims as they are alleged: an antitrust conspiracy
involving all defendants and affecting all trades with the
defendants.” Alaska Dep’t, 2021 WL 3027170, at *4.
The plaintiff’s factual allegations fail to render
plausible such a wide-ranging conspiracy. The complaint does not
explain how the defendants “were able to wield such control over

the secondary market”—that is, how five out of twenty-one GEMMs
could “impact every [United States] trade with every defendant”
for five years without losing customers to the sixteen non-
participating banks. See id. Such control is especially
implausible given that the complaint alleges that each GEMM must
buy and sell Gilts on demand and maintain a minimum individual
market share of Gilts available to trade on the secondary
market. Compl. ¶ 95. Although a plaintiff can allege plausibly
that “a numerical minority of dealers” control “most of the
market,” see GSE, 396 F. Supp. 3d at 362, the complaint contains
no such plausible allegation in this case. Its other allegations
render implausible the inference that the five defendant groups

conspired to dominate the market. See City of Pontiac, 92 F.4th
at 397–400.
In sum, the plaintiff offers only “skeletal allegations of
the possibility of a conspiracy.” ICE LIBOR, 2020 WL 1467354, at
*7. Much more is required, namely, specific allegations that
demonstrate parallel conduct and tie each defendant to the
alleged price-fixing scheme. MGB, 412 F. Supp. 3d at 391.
“Because [the plaintiff] fail[s] to allege parallel conduct with
respect to the alleged [section 1] conspiracy, [it] cannot
demonstrate an agreement to conspire based on indirect evidence
irrespective of [its] plus factors.” City of Pontiac, 92 F.4th
at 401.

3.
Moreover, the plaintiff also fails to plead adequate plus
factors that suggest the formation of a price-fixing conspiracy.
General plus factors indicate only that the market as a whole
may be susceptible to collusion, and thus “are not enough.” EGB
II, 2022 WL 768680, at *20. The complaint must plead “plus
factors for each defendant.” Id. Such specific plus factors must
support the plausible inference that each named defendant
entered the alleged conspiracy. See Mayor & City of Balt., 709
F.3d at 136–40.
The plaintiff fails to allege specific plus factors against
any of the defendants. It points to the CMA’s preliminary

findings, but that investigation concerns the exchange of
information about conventional Gilts, not a price-fixing
conspiracy covering the secondary market for all Gilts traded by
the defendants in the United States. Moreover, by definition, a
provisional finding is subject to change. And “the mere fact
that regulatory entities are investigating the possibility of .
. . misconduct . . . is not a plus factor.” In re London Silver
Fixing, Ltd., Antitrust Litig., 213 F. Supp. 3d 530, 561
(S.D.N.Y. 2016); MGB, 412 F. Supp. 3d at 390; In re Commodity
Exch., Inc., 213 F. Supp. 3d 631, 662 (S.D.N.Y. 2016).
The investigation is not a specific plus factor even as to
the two banks participating in the CMA’s leniency program.

Although the real-time exchange of pricing information is the
classic “example of a facilitating practice that can help
support an inference of a price-fixing agreement,” Todd, 275
F.3d at 198, the public evidence in this case is limited in time
and scope. DBAG admitted that its trader exchanged information
about conventional Gilts over chatroom conversations lasting
less than one year with CGML and HSBC Bank, more than one year
with MS International, and more than three years with RBC. Press
Release. CGML likewise admitted one-to-one conversations with
DBAG and MS International that both lasted less than one year.
Id. These admitted chats—spanning various time periods and
involving five out of twenty-one GEMM banks, only two of which

have conceded some wrongdoing under British competition law—do
not give rise to the plausible inference that any bank conspired
to fix the spread on every Gilt transaction involving the
defendant banks in the United States for five years.5 See City of
Pontiac, 92 F.4th at 399–400; In re Elevator Antitrust Litig.,
502 F.3d at 51–52, 51 n.6.
The plaintiff’s general plus factors are also insufficient
to show that any individual defendant participated in a price-
fixing conspiracy in the United States. That yield curves fell
and remained depressed during the alleged conspiracy period is
not a plus factor in view of the obvious explanation supplied by
the Bank of England’s quantitative-easing program. Also

unavailing is the plaintiff’s argument that increased Gilt
prices provided an economic incentive to collude. While

5 At oral argument, the plaintiff’s counsel emphasized CGML’s settlement as a
plus factor. The complaint alleges that under United Kingdom law, settlement
“is the process whereby a business under investigation is prepared to admit
that it has breached competition law.” Compl. ¶ 131. This allegation fails as
a plus factor for the same reason as the leniency-program allegations. The
public evidence in the CMA’s investigation does not suggest plausibly that
the conspiracy alleged in this case—namely, a price-fixing conspiracy with
respect to the purchase and sale of Gilts in the United States—existed.
depressed yield curves do demonstrate elevated Gilt prices, they
do not show that individual defendants were able to use such
prices to profit, particularly when they would have faced
competition from the numerous other participants in the market
who are not alleged to be members of the conspiracy.

The plaintiff points to other investigations and findings,
but these are also not plus factors. The defendants’ alleged
wrongdoing in other markets “does not constitute evidence that”
they conspired to fix spreads in the Gilt market. In re
Commodity Exch., 213 F. Supp. 3d at 661. The Court of Appeals
for the “Second Circuit has expressly rejected this sort of ‘if
it happened there, it could have happened here’ reasoning.” MGB,
412 F. Supp. 3d at 391 (citing In re Elevator Antitrust Litig.,
502 F.3d at 52).
Relying on Federal Rule of Evidence 404(b), the plaintiff
asserts that evidence of wrongdoing in other markets constitutes
a plus factor. But “absent any evidence of linkage,” allegations

of wrongdoing in other markets do not plausibly suggest
wrongdoing in this market. In re Elevator Antitrust Litig., 502
F.3d at 52. Insofar as the Rules of Evidence have any bearing at
the motion-to-dismiss stage at all, Rule 404(b) does not permit
the use of bad acts to show propensity. Fed. R. Evid. 404(b).
Indeed, the more pertinent rules here are Rules 401 and 403. To
the extent that the plaintiff relies on other bad acts to show
motive or opportunity, such allegations are simply not relevant,
or at least not relevant enough to justify consideration as a
plus factor. See In re Elevator Antitrust Litig., 502 F.3d at 51
n.6, 52.
The plaintiff relies on cases decided by courts in other

circuits. Milliken & Co. v. CNA Holdings, Inc., No. 3:08-CV-578,
2011 WL 3444013, at *10 (W.D.N.C. Aug. 8, 2011); In re Flash
Memory Antitrust Litig. (“FM”), 643 F. Supp. 2d 1133, 1148–49
(N.D. Cal. 2009); In re Static Random Access Memory Antitrust
Litig. (“SRAM”), 580 F. Supp. 2d 896, 903 (N.D. Cal. 2008). But
those courts considered other conspiracies as a plus factor in
relation to the alleged conspiracies because they were linked
“close[ly] in time, geographic area, and involved several of the
same entities,” Milliken & Co., 2011 WL 3444013, at *10, or they
involved the same employees alleged to have conspired. FM, 643
F. Supp. 2d at 1149; SRAM, 580 F. Supp. 2d at 903.
In this case, although the other conspiracies ran roughly

concurrently with the one alleged in this case, the plaintiff
does not allege that the same traders were involved. To the
contrary, the plaintiff alleges that Gilt traders operated
independently from other bond traders within each bank’s fixed-
income divisions. See Compl. ¶¶ 99–102. Nor does the plaintiff
allege that the other cases and investigations concern “the very
conduct alleged” here: conspiring to fix the spread of Gilts in
the United States. Cf. In re Foreign Exch. Benchmark Rates
Antitrust Litig. (“FX”), 74 F. Supp. 3d 581, 590–94 (S.D.N.Y.
2015) (crediting as circumstantial evidence “detailed
allegations of investigations into the manipulation of FX
benchmark rates by regulators in seemingly every significant

financial market in the world”). In similar cases involving
financial instruments, courts in this District have viewed other
alleged conspiracies formed by the same banking families without
more as a nonfactor. See, e.g., MGB, 412 F. Supp. 3d at 391; In
re Commodity Exch., Inc., 213 F. Supp. 3d at 661. The Court does
so again here.
Finally, the plaintiff points to certain structural
factors. While some of them have been considered as plus factors
in other cases, see EGB II, 2022 WL 768680, at *20, they do not
amount to sufficient indicia that the individual defendants
entered into the price-fixing conspiracy alleged in this case.
Because the complaint fails to allege both parallel conduct

and adequate plus factors, the plaintiff has “not nudged [its]
claims across the line from conceivable to plausible,” and thus
its “complaint must be dismissed.” Twombly, 550 U.S. at 570.
Accordingly, the motion to dismiss the complaint for failure to
allege a plausible price-fixing conspiracy is granted.
B.
The defendants also contend that the plaintiff lacks
antitrust standing to bring this suit because the plaintiff did
not suffer an antitrust injury. Defs’ Joint Memorandum, Dkt. No.
63, at 15–18. “An antitrust plaintiff must show . . . antitrust

standing at the pleading stage.” In re Aluminum Warehousing
Antitrust Litig., 833 F.3d 151, 157 (2d Cir. 2016). To meet the
antitrust standing requirement, the plaintiff must allege
plausibly (1) that it suffered an antitrust injury, and (2) that
it is an “efficient enforcer[] of the antitrust laws.” Id. “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).
To allege an antitrust injury, the plaintiff must first
allege plausibly that it was “injured.” See 15 U.S.C. § 15. The
complaint must make out the plaintiff’s injury based on factual
allegations, not mere conclusory allegations that restate the

necessary legal principles. See Iqbal, 556 U.S. at 678–80.
Additionally, the plaintiff’s injury must be the type of injury
that “the antitrust laws were intended to prevent and that flows
from that which makes [the] defendants’ acts unlawful.”
Brunswick Corp. v. Pueblo Bowl–O–Mat, Inc., 429 U.S. 477, 489
(1977). “The need for this showing is at least as great under
the per se rule as under the rule of reason.” Atl. Richfield Co.
v. USA Petrol. Co., 495 U.S. 328, 344 (1990).
In this case, the plaintiff alleges that it was injured
when it entered into Gilt transactions with several of the
defendants at fixed prices. Compl. ¶¶ 28, 116. These conclusory

allegations clear the “low threshold” required to show Article
III injury in fact. See John v. Whole Foods Mkt. Grp., Inc., 858
F.3d 732, 736–38 (2d Cir. 2017).6 The plaintiff’s injury
allegations place a concrete and particularized injury “within
the realm of possibility.” See Harry, 889 F.3d at 111. While
“that is enough” to show Article III injury in fact for
jurisdictional purposes, it is not enough to allege a plausible
antitrust injury on the merits. See id. at 111, 116. Much more
factual matter is required to allege plausibly that the
plaintiff suffered an antitrust injury. See id. at 116.
The complaint does not point to any transaction in which
the plaintiff paid too much or received too little when it

bought or sold a Gilt with any of the defendants. Indeed, the
plaintiff could not in any event, having failed to allege
plausibly any episodic price-fixing that affected the
plaintiff’s own trades.

6 The defendants do not contend that the plaintiff has failed to allege a
factual basis sufficient to show that it suffered a harm for purposes of
alleging Article III standing. The pleading standard for constitutional
standing is lower than the standard necessary to plead the injury required to
state a substantive cause of action. See Harry, 889 F.3d at 110–11.
Nor do the plaintiff’s general allegations that it traded
with some of the defendants at some unspecified times during the
Class Period suffice to make out antitrust injury. The plaintiff
has failed to allege a plausible price-fixing conspiracy that
affected the entire market for Gilts in the United States over a

five-year period.
Some courts have viewed general allegations that the
plaintiffs directly transacted in the manipulated market at some
point during the conspiracy period as sufficient to make out
antitrust injury at the motion-to-dismiss stage. See, e.g., FX,
74 F. Supp. 3d at 587, 595–98; GSE, 396 F. Supp. 3d at 366–67.
But in such cases, the plaintiffs plausibly alleged a pervasive
conspiracy that infected the pertinent markets for the entirety
of the alleged conspiracy periods. See FX, 74 F. Supp. 3d at
590–94 (concluding that the complaint “adequately allege[d] that
[the] [d]efendants engaged in a long-running conspiracy to
manipulate” the prices of FX instruments); GSE, 396 F. Supp. 3d

at 361–63.
This case is not like FX, GSE, and similar cases. The
plaintiff has failed to allege a plausible five-year conspiracy
to fix spreads in the United States Gilt market. In the absence
of a plausibly pleaded pervasive price-fixing conspiracy, the
plaintiff’s general allegations of injury do not show that it
suffered an antitrust injury. And because the complaint does not
set out the details of the plaintiff’s specific trades, “let
alone a connection between [the] [d]efendants’ unlawful conduct
and that non-injury,” it fails to allege any plausible episodic
antitrust injury. Cf. Harry, 889 F.3d at 116.
The plaintiff has failed to allege plausibly that it

suffered an antitrust injury. Therefore, the motion to dismiss
for failure to plead antitrust injury is granted.
IV.
Because the complaint must be dismissed for failure to
state a plausible price-fixing conspiracy, it is unnecessary to
reach the remaining bases for dismissal, including whether the
complaint is time-barred. It is also unnecessary to reach the
additional claims by the foreign defendants that the complaint
should be dismissed for lack of personal jurisdiction over them
and for improper venue.
Leave to amend should be freely given when justice so
requires. Fed. R. Civ. P. 15(a)(2). Because the plaintiff has

not “repeated[ly] fail[ed] to cure deficiencies” to an extent
warranting dismissal with prejudice, see Foman v. Davis, 371
U.S. 178, 182 (1962), the plaintiff’s amended complaint is
dismissed without prejudice.
CONCLUSION
The Court has considered all of the arguments raised by the
parties. To the extent not specifically addressed, the arguments
are either moot or without merit. For the foregoing reasons, the
defendants’ joint motion to dismiss the plaintiff’s complaint
for failure to state a-claim is granted, the various defendants’
motion to dismiss for lack of personal jurisdiction and for
improper venue is denied as moot, and the complaint is dismissed
without prejudice.
If the plaintiff wishes to file an amended complaint, the
plaintiff must file a motion to amend, including a copy of the
amended complaint and explaining how the amended complaint
solves the deficiencies noted in this opinion, by October 4,
2024. The defendants may respond by October 25, 2024. The
plaintiff may reply by November 4, 2024. If the plaintiff does
not move to file an amended complaint by October 4, 2024, the
current complaint will be dismissed with prejudice.
The Clerk is directed to close all pending motions.
SO ORDERED.
Dated: New York, New York (AC (2. 5
September 13, 2024
John G. Koeltl
Uni States District Judge

34

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10662559. Public record. Not legal advice.