The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
In re:
INTEREST RATE SWAPS ANTITRUST 16-MD-2704 (JPO)
LITIGATION
18-CV-5361 (JPO)
ORDER NO. 84
TRUEEX LLC,
Plaintiff,
-v-
BANK OF AMERICA CORPORATION,
et al.,
Defendants.
J.PAUL OETKEN, District Judge:
Defendants NatWest Group plc, NatWest Markets plc, and NatWest Markets Securities
Inc. (collectively “NatWest”) move to disqualify Alan Mittleman, an expert witness for
Platform-Plaintiff trueEx LLC (“trueEX”). (ECF No. 205 (“Mtn.”).) In its letter motion (id.),
and reply letter (ECF No. 214), as well as during the telephonic conference on July 2, 2025,
NatWest argued that Mittleman should be disqualified because of his former employment and
“confidential relationship” with Defendants Credit Suisse and NatWest. (See Mtn. at 1.)
To succeed on a motion to disqualify an expert witness, a party must show that: “(i) the
moving party held an objectively reasonable belief in the existence of a confidential relationship
with the challenged expert; and (ii) during the relationship there was a disclosure of confidential
or privileged information to the expert that is relevant to the current litigation.” Abraham v.
Leigh, No. 17-CV-5429, 2022 WL 1772488, at *1 (S.D.N.Y. June 1, 2022) (cleaned up). The
Court may also consider the weight of public interest, taking into account factors like “judicial
integrity and fairness” balanced with “the party’s right to the assistance of experts who possess
specialized knowledge.” Auto-Kaps, LLC v. Clorox Co., No. 15-CV-1737, 2016 WL 1122037,
at *2 (E.D.N.Y. Mar. 22, 2016). Ultimately, “instances of expert disqualification are rare,”
Homeward Residential, Inc. v. Sand Canyon Corp., No. 12-CV-5067, 2019 WL 5634171, at *2
(S.D.N.Y. Oct. 31, 2019) (quotation marks omitted), and NatWest, as the moving party, “bears
the burden of demonstrating why [Mittleman] should be disqualified,” In re New York City
Policing During Summer 2020 Demonstrations, No. 20-CV-8924, 2022 WL 656808, at *2
(S.D.N.Y. Mar. 4, 2022).
NatWest has failed to meet its burden here. While NatWest argues that Mittleman’s past
employment with two Defendants creates a conflict of interest in the present litigation (see Mtn.
at 3-4), it fails to provide any specifics about what, if any, confidential information was ever
shared with Mittleman that would be relevant to this case. And although NatWest cites two
contractual provisions in Mittleman’s separation agreements with itself and Credit Suisse to
illustrate the allegedly ongoing confidential relationship between the parties (see id. at 2), those
clauses more narrowly prevent Mittleman from “disparag[ing]” the company and require that he
cooperate with company attorneys should there be an investigation into a matter on which he
worked (see ECF No. 205-3 at 11, 13; ECF No. 205-6 at 5, 8). Mittleman’s expert opinion
cannot plausibly be read as disparaging either Defendant. Indeed, Mittleman only mentions
NatWest and Credit Suisse to list his qualifications and past roles that permit him to speak as an
expert witness, or to provide background on the relevant market practices. (See ECF No. 205-1
at 4, 11, 18, 42, 43.) And Mittleman has assisted with the factual investigation into his time at
NatWest, sitting for a deposition in 2018.1 (See ECF No. 205-7.) Broadly reading such
0F
cooperation clauses to forever tie an individual to his past employer and prohibit him from
serving as an expert witness in any suit related to his expertise developed during that
employment would be unreasonably inhibiting.
Second, Mittleman’s expert report is narrowly confined to his opinion on the commercial
viability of trueEx’s platform in 2013. (See ECF No. 205-1.) While Mittleman provides some
background based on his experience in the interest rate swaps and fixed-income trading markets,
he speaks in general terms and does not provide any details about NatWest’s or Credit Suisse’s
business strategy or specific practices at issue in the present case. (See id.) Thus, even if
Mittleman possesses specific confidential information that could be detrimental to the defense,
he is not speaking to those matters. Rather, he is using the industry knowledge he developed as
an employee at several financial institutions, including NatWest and Credit Suisse, to provide an
expert assessment of whether a platform would have been viable in a competitive market.
Finally, public interest considerations counsel denying NatWest’s motion for
disqualification. Setting a standard where expert witnesses like Mittleman are disqualified
precisely because of their experience in the exact market at issue would unfairly hamstring
plaintiffs. And interpreting broad contractual obligations like the ones NatWest and Credit
Suisse included in Mittleman’s separation agreements to prevent him from offering expert
testimony on a narrow topic not directly related to Defendants’ specific dealings would
1 Although NatWest raises concerns over the 2018 deposition it conducted of Mittleman
about his past employment (Mtn. at 2), the transcript of that deposition confirms that Mittleman
was a relatively minor fact witness who spoke mostly about the relationships of various players
in the interest rate swaps market (see ECF No. 205-7). There is no mention or implication of any
confidential information Mittleman possessed, nor any indication that NatWest intended to use
Mittleman as a key part of its defense. (See id.)
encourage financial institutions to include these provisions and wield them to prevent the most
experienced individuals from ever becoming expert witnesses. Such an outcome would limit the
efficacy of expert witness testimony when a court may most benefit from 1t—such as in highly
technical cases like this one.
The Court concludes that NatWest has failed to meet its burden of showing that
Mittleman is an improper expert witness to speak on the narrow issue of TrueEx’s predicted
viability. Defendants’ motion to disqualify Alan Mittleman is therefore DENIED.
The Clerk of Court is directed to close the motions at Docket Numbers 204 and 205 in
case number 18-cv-5361, to close the motions at Docket Numbers 1120 and 1121 in case number
16-md-2704, and to docket this order under those two case numbers.
SO ORDERED.
Dated: July 14, 2025
New York, New York
United States District Judge