UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK IN RE: SSA BONDS ANTITRUST LITIGATION This Document Relates To All Actions 1:16-cv-03711-ER PLAINTIFFS’ CONSOLIDATED OPPOSITION TO DEFENDANTS’ MOTIONS TO DISMISS FOR LACK OF PERSONAL JURISDICTION AND IMPROPER VENUE Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 1 of 98 i TABLE OF CONTENTS Page PRELIMINARY STATEMENT .....................................................................................................1 STATEMENT OF RELEVANT JURISDICTIONAL FACTS .......................................................3 A. Almost All of the Foreign Dealer Defendants Approved and Set Artificial Prices for the Named Plaintiffs’ USD SSA Transactions ........................................3 B. The Foreign Dealer Defendants Also Executed USD SSA Transactions With Other Members of the U.S. Class ...................................................................6 C. The Foreign Dealer Defendants Priced and Approved Still More Transactions With Other Members of the U.S. Class ..............................................7 D. Defendants Committed Additional Acts in Furtherance of the Conspiracy in the United States and New York ..........................................................................8 E. ..................10 F. The Nature of the USD SSA Bond Market Further Confirms the Conspiracy Targeted the United States and New York .........................................13 G. Defendants’ Declarations Do Not Even Try to Dispute Plaintiffs’ Core Allegations .............................................................................................................14 LEGAL STANDARD ....................................................................................................................21 ARGUMENT .................................................................................................................................22 I. THE CLAYTON ACT PROVIDES FOR BOTH PERSONAL JURISDICTION AND VENUE OVER THE FOREIGN DEALER DEFENDANTS .................................22 A. Minimum Contacts Exist Because of the Foreign Dealer Defendants’ Responsibility for the Named Plaintiffs’ Transactions ..........................................24 1. Minimum contacts exist for Barclays Bank PLC and Citigroup Global Markets Limited because they executed transactions with Plaintiffs at artificial prices ........................................................................24 2. Minimum contacts exist for all Foreign Dealer Defendants other than Crédit Agricole because they approved and priced transactions with Plaintiffs .........................................................................29 B. Minimum Contacts Also Exists for the Foreign Dealer Defendants Because they Marketed, then Specifically Approved and Priced, Billions in Other Transactions With U.S. Class Members ..................................................34 C. Minimum Contacts Also Exist Because the Effects of the Conspiracy Were Expressly Aimed at the United States ..........................................................39 D. The Foreign Dealer Defendants’ Nationwide Contacts Must Be Considered .............................................................................................................44 E. This Court is a Proper Venue Under the Clayton Act ...........................................46 Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 2 of 98 ii II. PERSONAL JURISDICTION OVER THE FOREIGN DEALER DEFENDANTS IS ALSO PROPER UNDER NEW YORK’S LONG-ARM STATUTE, AND VENUE IS PROPER UNDER 28 U.S.C. § 1391 ..............................................................49 A. Personal Jurisdiction Exists Under the New York Long-Arm Statute ..................49 B. This Court is a Proper Venue Under 28 U.S.C. § 1391 .........................................51 III. IN THE ALTERNATIVE, PERSONAL JURISDICTION OVER THE FOREIGN DEALER DEFENDANTS IS PROPER PURSUANT TO RULE 4(K)(2), AND VENUE WOULD AGAIN BE PROPER UNDER 28 U.S.C. § 1391 ..............................52 IV. THE COURT MAY ALSO CONSIDER THE ACTS OF THE FOREIGN DEALER DEFENDANTS’ DOMESTIC AFFILIATES AND CO- CONSPIRATORS..............................................................................................................54 A. The Domestic Defendants’ In-Forum Acts Were Carried Out at the Direction and Control of the Foreign Dealer Defendants ......................................55 B. The In-Forum Acts of Co-Conspirators May Also Be Imputed to the Foreign Dealer Defendants ....................................................................................59 1. The in-forum acts by each Defendant may be imputed to the Foreign Dealer Defendants under federal law ...........................................60 2. The in-forum acts by each Defendant may be imputed to the Foreign Dealer Defendants under the New York long-arm statute ...........65 V. PERSONAL JURISDICTION IS PROPER OVER THE INDIVIDUAL DEFENDANTS .................................................................................................................66 A. Personal Jurisdiction Exists Under the New York Long-Arm Statute ..................66 B. The Court Can Also Consider the Acts of the Affiliates of the Individual Defendants’ Employers, as Well as Those of All Co-Conspirators .......................74 C. In the Alternative, Individual Defendants are Subject to Personal Jurisdiction Under the Nationwide Contacts Test of Rule 4(k)(2) ........................75 D. This Court is a Proper Venue for the Individual Defendants.................................76 VI. EXERCISING PERSONAL JURISDICTION OVER THE DEFENDANTS WOULD NOT OFFEND TRADITIONAL NOTIONS OF FAIR PLAY AND SUBSTANTIAL JUSTICE ................................................................................................76 VII. IN THE ALTERNATIVE, PLAINTIFFS MOVE FOR JURISDICTIONAL DISCOVERY .....................................................................................................................82 CONCLUSION ..............................................................................................................................83 Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 3 of 98 iii TABLE OF AUTHORITIES Page Cases 7 W. 57th St. Realty Co. v. Citigroup, Inc., 2015 WL 1514539 (S.D.N.Y. Mar. 31, 2015) .............................................................. 29, 53, 54 777388 Ont. Ltd. v. Lencore Acoustics Corp., 142 F. Supp. 2d 309 (E.D.N.Y. 2001) ................................................................................ 31, 51 Access Telecom, Inc. v. MCI Telecomm. Corp., 197 F.3d 694 (5th Cir. 1999) .................................................................................................... 45 Adams v. Unione Mediterranea di Sicurta, 364 F.3d 646 (5th Cir. 2004) .................................................................................................... 53 Aerogroup Int’l, Inc. v. Marlboro Footworks, Ltd., 956 F. Supp. 427 (S.D.N.Y. 1996) ........................................................................................... 53 Al Rushaid v. Pictet & Cie, 68 N.E.3d 1 (2016) ............................................................................................................. 46, 49 Alaska Elec. Pension Fund v. Bank of Am. Corp (“ISDAfix”), 175 F. Supp. 3d 44 (S.D.N.Y. 2016) ........................................................................................ 25 AmTrust Fin. Servs. v. Lacchini, 260 F. Supp. 3d 316 (S.D.N.Y. 2017) ...................................................................................... 34 Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102 (1987) ...................................................................................................... 55, 77, 80 Axiom Foods, Inc. v. Acherchem International, 874 F.3d 1064 (9th Cir. 2017) .................................................................................................. 43 Ayyash v. Bank Al-Madina, 2006 WL 587342 (S.D.N.Y. Mar. 9, 2006) .............................................................................. 82 Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 305 F.3d 120 (2d Cir. 2002) ............................................................................................... 36, 78 Beach v. Citigroup Alternative Investments LLC, 2014 WL 904650 (S.D.N.Y. Mar. 7, 2014) ........................................................................ 37, 38 Best Van Lines, Inc. v. Walker, 490 F.3d 239 (2d Cir. 2007) ..................................................................................................... 22 Biz2Credit, Inc. v. Kular, 2015 WL 2445076 (S.D.N.Y. May 21, 2015) .......................................................................... 72 Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 4 of 98 iv BMW of N. Am. LLC v. M/V Courage, 254 F. Supp. 3d 591 (S.D.N.Y. 2017) ................................................................................ 52, 53 Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017) ........................................................................................................ 36, 37 Brown v. Lockheed Martin Corp., 814 F.3d 619 (2d Cir. 2016) ..................................................................................................... 81 Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985) ...................................................................................................... 22, 77, 78 Busch v. Buchman, Buchman & O’Brien, Law Firm, 11 F.3d 1255 (5th Cir. 1994) .................................................................................................... 45 Calder v. Jones, 465 U.S. 783 (1984) ...................................................................................................... 22, 39, 44 Charles Schwab Corp. v. Bank of America Corp., 883 F.3d 68 (2d Cir. 2018) ................................................................................................ passim Chinese-Manufactured Drywall Prods. Liab. Litig., 2017 WL 5971622 (E.D. La. Nov. 30, 2017) ........................................................................... 37 Chloe v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158 (2d Cir. 2010) .............................................................................................. passim Cleveland v. Caplaw Enters., 448 F.3d 518 (2d Cir. 2006) ..................................................................................................... 55 CompuDyne Corp. v. Shane, 453 F. Supp. 2d 807 (S.D.N.Y. 2006) ...................................................................................... 55 Daimler AG v. Bauman, 571 U.S. 117 (2014) ...................................................................................................... 55, 77, 81 Darrick Enters. v. Mitsubishi Motors Corp., 2007 WL 2893366 (D.N.J. Sept. 28, 2007) ........................................................................ 31, 41 Daventree Ltd. v. Republic of Azerbaijan, 349 F. Supp. 2d 736 (S.D.N.Y. 2004) ................................................................................ 53, 65 Dennis v. JPMorgan Chase & Co. (“BBSW”), 343 F. Supp. 3d 122 (S.D.N.Y. 2018) ........................................................ 29, 43, 45, 47, 48, 58 DirecTV Latin Am., LLC v. Park, 610, LLC, 691 F. Supp. 2d 405 (S.D.N.Y. 2010) ...................................................................................... 72 Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 5 of 98 v Dixon v. Mack, 507 F. Supp. 345 (S.D.N.Y. 1980) ........................................................................................... 63 Dorchester Fin. Sec., Inc. v. Banco BRJ, S.A., 722 F.3d 81 (2d Cir. 2013) ....................................................................................................... 21 Eades v. Kennedy, PC Law Offices, 799 F.3d 161 (2d Cir. 2015) ................................................................................... 25, 26, 49, 77 EMI Christian Music Grp. v. MP3tunes, LLC, 844 F.3d 79 (2d Cir. 2016) ....................................................................................................... 41 E-Z Bowz, L.L.C. v. Prof’l Prod. Research Co., 2003 WL 22064259 (S.D.N.Y. Sept. 5, 2003).......................................................................... 75 Famular v. Whirlpool Corp., 2017 WL 2470844 (S.D.N.Y. Jun. 7, 2017) ............................................................................. 38 Fitzhenry-Russell v. Dr. Pepper Snapple Grp., Inc., 2017 WL 4224723 (N.D. Cal. Sept. 22, 2017) ......................................................................... 37 FrontPoint Asian Driven Event Fund, L.P. v. Citibank, N.A. (“SIBOR I”), 2017 WL 3600425 (S.D.N.Y. Aug. 18, 2017) .................................................. 22, 28, 45, 53, 61 FrontPoint Asian Event Driven Fund, L.P. v. Citibank, N.A. (“SIBOR II”), 2018 WL 4830087 (S.D.N.Y. Oct. 4, 2018) ........................................................... 22, 28, 43, 60 Gelboim v. Bank of Am. Corp., 823 F.3d 759 (2d Cir. 2016) ..................................................................................................... 25 Gerstle v. National Credit Adjusters, LLC, 76 F. Supp. 3d 503 (S.D.N.Y. 2015) ........................................................................................ 57 Gmurzynska v. Hutton, 257 F. Supp. 2d 621 (S.D.N.Y. 2003) .......................................................................... 69, 79, 81 Gonzalez v. Costco Wholesale Corp., 2018 WL 4783962 (E.D.N.Y. Sept. 29, 2018) ......................................................................... 37 Grand River Enters. Six Nations, Ltd. v. Pryor, 425 F.3d 158 (2d Cir. 2005) ..................................................................................................... 49 Grosser v. Commodity Exch., Inc., 639 F. Supp. 1293 (S.D.N.Y. 1986) ......................................................................................... 49 Grove Press, Inc. v. Angleton, 649 F.2d 121 (2d Cir. 1981) ..................................................................................................... 64 Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 6 of 98 vi Gucci America, Inc. v. Weixing Li, 135 F. Supp. 3d 87, 99 (S.D.N.Y. 2015) .................................................................................. 80 Gucci America, Inc. v. Weixing Li, 768 F.3d 122 (2d Cir. 2014) ............................................................................................... 45, 81 Hau Yin To v. HSBC Holdings, PLC, | 700 F. App’x 66 (2d Cir. 2017) ................................................................................................ 69 Holland Am. Line Inc. v. Wartsila N. Am., Inc., 485 F.3d 450 (9th Cir. 2007) .................................................................................................... 53 Hood v. Ascent Med. Corp., 691 F. App’x 8 (2d Cir. 2017) .................................................................................................. 72 iFLY Holdings LLC v. Indoor Skydiving Ger. GMBH, 2015 WL 5909729 (E.D. Tx. Oct. 6, 2015) ........................................................................ 51, 52 Ikeda v. J Sisters 57, Inc., 2015 WL 4096255 (S.D.N.Y. July 6, 2015) ............................................................................. 82 In re Aluminum Warehousing Antitrust Litig. (“Aluminum Warehousing II”), 2015 WL 6472656 (S.D.N.Y. Oct. 23, 2015) ..................................................................... 26, 53 In re Aluminum Warehousing Antitrust Litigation (“Aluminum Warehousing I”), 90 F. Supp. 3d 219 (S.D.N.Y. 2015) ............................................................................ 58, 59, 64 In re Application to Enforce Admin. of Subpoenas Duces Tecum of the S.E.C. v. Knowles, 87 F.3d 413 (10th Cir. 1996) .................................................................................................... 45 In re Auto. Refinishing Paint Antitrust Litig., 358 F.3d 288 (3d Cir. 2004) ..................................................................................................... 45 In re Braskem S.A. Sec. Litig., 246 F. Supp. 3d 731 (S.D.N.Y. 2017) .................................................................... 34, 68, 69, 73 In re Bulk (Extruded) Graphite Prods. Antitrust Litig., 2007 WL 2212713 (D.N.J. July 30, 2007 ................................................................................. 40 In re Capacitors Antitrust Litig., 2015 WL 3638551 (N.D. Cal. June 11, 2015) .......................................................................... 40 In re Cathode Ray Tube (CRT) Antitrust Litig., 27 F. Supp. 3d 1002 (N.D. Cal. 2014) ...................................................................................... 31 In re Chinese-Manufactured Drywall Prods. Liab. Litig., 753 F.3d 521 (5th Cir. 2014) .................................................................................................... 55 Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 7 of 98 vii In re Commodity Exch., Inc., 213 F. Supp. 3d 631 (S.D.N.Y. 2016) ...................................................................................... 55 In re Dental Supplies Antitrust Litig., 2017 WL 4217115 (E.D.N.Y. Sept. 20, 2017) ................................................................... 39, 62 In re Fasteners Antitrust Litig., 2011 WL 3563989 (E.D. Pa. Aug. 12, 2011) ........................................................................... 31 In re Foreign Exch. Benchmark Rates Antitrust Litig. (“FOREX”), 2016 WL 1268267 (S.D.N.Y. Mar. 31, 2016) .............................................................. 24, 40, 44 In re LIBOR-Based Fin. Instruments Antitrust Litig. (“LIBOR IV”), 2015 WL 6243526 (S.D.N.Y. Oct. 20, 2015) ..................................................................... 29, 43 In re LIBOR-Based Fin. Instruments Antitrust Litig. (“LIBOR V”), 2015 WL 6696407 (S.D.N.Y. Nov. 3, 2015) ............................................................................ 58 In re Magnetic Audiotape Antitrust Litig., 334 F.3d 204 (2d Cir. 2003) ................................................................................... 23, 41, 45, 82 In re N. Sea Brent Crude Oil Futures Litig., 2017 WL 2535731 (S.D.N.Y. June 8, 2017) ............................................................................ 62 In re Nat. Gas Commodity Litig., 337 F. Supp. 2d 498 (S.D.N.Y. 2004) ...................................................................................... 41 In re Parmalat Sec. Litig., 375 F. Supp. 2d 278 (S.D.N.Y. 2005) ...................................................................................... 55 In re Platinum & Palladium Antitrust Litig., 2017 WL 1169626 (S.D.N.Y. Mar. 28, 2017) .......................................................................... 29 In re Propranolol Antitrust Litig., 249 F. Supp. 3d 712 (S.D.N.Y. Apr. 6, 2017) .............................................................. 77, 78, 81 In re Shulman Transp. Enterprises, Inc., 744 F.2d 293 (2d Cir. 1984) ..................................................................................................... 64 In re Terrorist Attacks on September 11, 2001, 349 F. Supp. 2d 765 (S.D.N.Y. 2005) ................................................................................ 33, 65 In re Terrorist Attacks on September 11, 2001, 714 F.3d 659 (2d Cir. 2013) ..................................................................................................... 33 In re TFT-LCD (Flat Panel) Antitrust Litig., 2011 WL 5444261 (N.D. Cal. Nov. 9, 2011) ........................................................................... 40 Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 8 of 98 viii In re Vitamin C Antitrust Litig., 2012 WL 2930109 (E.D.N.Y. July 18, 2012) ........................................................................... 46 In re Vitamin C Antitrust Litig., 2012 WL 12355046 (E.D.N.Y. Aug. 8, 2012) .................................................................... 31, 51 In re Vitamins Antitrust Litig., 270 F. Supp. 2d 15 (D.D.C. 2003) ...................................................................................... 31, 60 ISI Int’l, Inc. v. Borden Ladner Gervais LLP, 256 F.3d 548 (7th Cir. 2001) .............................................................................................. 52, 53 Island Stone Int’l Ltd. v. Island Stone India Private Ltd., 2017 WL 1437464 (M.D. Fla. Apr. 4, 2017) ............................................................................ 51 Jazini v. Nissan Motor Co., Ltd., 148 F.3d 181 (2d Cir. 1998) ..................................................................................................... 68 Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan, 115 F.3d 1020 (D.C. Cir. 1997) ................................................................................................ 63 Keeton v. Hustler Magazine, Inc., 465 U.S. 770 (1984) ............................................................................................................ 26, 38 King Cnty., Wash v. IKB Deutsche Industriebank, AG, 769 F. Supp. 2d 309 (S.D.N.Y. 2011) ...................................................................................... 73 LaMarca v. Pak-Mor Mfg. Co., 95 N.Y.2d 210 (2000) ............................................................................................................... 51 Laydon v. Mizuho Bank, Ltd. (“Laydon V”), 2015 WL 1515358 (S.D.N.Y. Mar. 31, 2015) ......................................................... 29, 43, 45 81 Laydon v. Mizuho Bank, Ltd. (“Laydon VI”), 2017 WL 1113080 (S.D.N.Y. Mar. 10, 2017) .................................................................... 43, 73 Leasco Data Processing Equipment Corp. v. Maxwell, 468 F.2d 1326 (2d. Cir. 1972) .................................................................................................. 63 Lehigh Valley Indus., Inc. v. Birenbaum, 527 F.2d 87 (2d Cir. 1975) ....................................................................................................... 63 Leon v. Shmukler, 992 F. Supp. 2d 179 (E.D.N.Y. 2014) ...................................................................................... 82 LIBOR V, 2015 WL 6696407 .................................................................................................................... 58 Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 9 of 98 ix Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 673 F.3d 50 (2d Cir. 2012) ................................................................................................ passim Lopez v. Shopify, Inc., 2017 WL 2229868 (S.D.N.Y. May 23, 2017) .......................................................................... 34 Madison Capital Mkts., LLC v. Starneth Eur. B.V., 2016 WL 4484251 (S.D.N.Y. Aug. 23, 2016) .......................................................................... 81 Mario Valente Collezioni, Ltd. v. Confezioni Semeraro Paolo, S.R.L., 264 F.3d 32 (2d Cir. 2001) ....................................................................................................... 66 McGee v. Int’l Life Ins. Co., 355 U.S. 220 (1957) .................................................................................................................. 26 Megna v. Biocomp Laboratories Inc., 166 F. Supp. 3d 493 (S.D.N.Y. 2016) ...................................................................................... 69 Melea, Ltd. v. Jawer SA, 511 F.3d 1060 (10th Cir. 2007) ................................................................................................ 63 Metropolitan Life Ins. v. Robertson-Ceco Corp., 84 F.3d 560 (2d Cir. 1996) ................................................................................................. 77, 79 Mintz v. Mathers Fund, Inc., 463 F.2d 495 (7th Cir. 1972) .................................................................................................... 38 Morill v. Scott Financial Corp., 873 F.3d 1136 (9th Cir. 2017) .................................................................................................. 43 New York v. Mountain Tobacco Co., 55 F. Supp. 3d 301 (E.D.N.Y. 2014) ........................................................................................ 82 Norvel Ltd. v. Ulstein Propeller AS, 161 F. Supp. 2d 190 (S.D.N.Y. 2001) ...................................................................................... 53 Oldfield v. Pueblo De Bahia Lora, S.A., 558 F.3d 1210 (11th Cir. 2009) ................................................................................................ 53 Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, 2006 WL 708470 (S.D.N.Y. Mar. 20, 2006) ............................................................................ 82 Peterson v. Islamic Republic of Iran, 2013 WL 2246790 (S.D.N.Y. May 20, 2013) .......................................................................... 52 Police & Fire Retirement System of Detroit v. IndyMac MBS, Inc., 721 F.3d 95 (2d Cir. 2013) ....................................................................................................... 38 Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 10 of 98 x Porina v. Marward Shipping Co., 521 F.3d 122 (2d Cir. 2008) ..................................................................................................... 64 Precision Associates, Inc. v. Panalpina World Transport (Holding) Ltd., 2011 WL 7053807 (E.D.N.Y. Aug. 15, 2018) .......................................................................... 54 Pyramyd Stone International Corp. v. Crosman Corp., 1997 WL 66778 (S.D.N.Y. Feb. 18, 1997) ............................................................................... 69 Riverwoods Chappaqua Corp. v. Marine Midland Bank, N.A., 30 F.3d 339 (2d Cir. 1994) ....................................................................................................... 53 S. New Eng. Tel. Co. v. Glob. NAPS Inc., 624 F.3d 123 (2d Cir. 2010) ..................................................................................................... 21 S.E.C. v. Straub, 921 F. Supp. 2d 244 (S.D.N.Y. 2013) ...................................................................................... 42 Sae Han Sheet Co. v. Eastman Chemical Corp., 2017 WL 4769394 (S.D.N.Y. Oct. 19, 2017) ..................................................................... 38, 39 Sea Trade Maritime Corp. v. Coutsodontis, 2012 WL 3594288 (S.D.N.Y. Aug. 16, 2012) .................................................................... 60, 66 SEC v. Ficeto, 2013 WL 1196356 (C.D. Cal. Feb. 7, 2013) ............................................................................ 26 Segal v. Bitar, 2012 WL 273609 (S.D.N.Y. Jan. 30, 2012) ....................................................................... 36, 51 Selman v. Harvard Medical School, 494 F. Supp. 603 (S.D.N.Y. 1980) ........................................................................................... 38 Simon v. Philip Morris, Inc., 86 F. Supp. 2d 95 (E.D.N.Y. 2000) .................................................................................... 60, 61 Sonterra Capital Master Fund Ltd. v. Credit Suisse Grp. AG, 277 F. Supp. 3d 521 (S.D.N.Y. Sept. 25, 2017) ................................................................. 40, 42 Sonterra Capital Master Fund Ltd. v. Barclays Bank PLC, 2018 WL 6725387 (S.D.N.Y. Dec. 21, 2018) .................................................................... 28, 45 State v. Daicel Chem. Indus., Ltd., 2004 WL 5487822 (N.Y. Sup. Ct. Sept. 24, 2004) ............................................................. 31, 51 Stauffacher v. Bennett, 969 F.2d 455 (7th Cir. 1992) .................................................................................................... 61 Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 11 of 98 xi Strauss v. Credit Lyonnais, S.A., 175 F. Supp. 3d 3 (E.D.N.Y. 2016) .......................................................................................... 80 Sullivan v. Barclays PLC, 2017 WL 685570 (S.D.N.Y. Feb. 2, 2017) ............................................................................... 29 Sunrise Techs., Inc. v. SELC Ir., Ltd., 2016 WL 3360418 (D. Mass. June 14, 2016) ........................................................................... 52 Tera Group, Inc. v. Citigroup, Inc., 2018 WL 4732426 (S.D.N.Y. Sept. 28, 2018).......................................................................... 57 Textor v. Bd. of Regents of N. Illinois Univ., 711 F.2d 1387 (7th Cir. 1983) .................................................................................................. 63 Thackurdeen v. Duke Univ., 130 F. Supp. 3d 792 (S.D.N.Y. 2015) ...................................................................................... 69 U.S. Commodity Futures Trading Comm’n v. Wilson, 27 F. Supp. 3d 517 (S.D.N.Y. 2014) ........................................................................................ 26 UMS Generali Marine S.p.A. v. Adams, 543 U.S. 979 (2004) .................................................................................................................. 53 Union of Needletrades, Indus and Textile Emps., AFL-CIO, CLC v. U.S. I.N.S., 336 F.3d 200 (2d Cir. 2003) ..................................................................................................... 63 United States v. Hayes, 99 F. Supp. 3d 409 (S.D.N.Y. 2015) ........................................................................................ 42 Unspam Technologies, Inc. v. Chernuk, 716 F.3d 322 (4th Cir. 2013) .............................................................................................. 61, 63 Verragio, Ltd. v. S K Diamons, 2017 WL 1750451 (S.D.N.Y. May 4, 2017) ............................................................................ 80 Walden v. Fiore, 571 U.S. 277 (2014) ........................................................................................................... passim Waldman v. Palestine Liberation Organization, 835 F.3d 317 (2d Cir. 2016) ..................................................................................................... 42 World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980) .................................................................................................................. 31 Statutes 15 U.S.C. § 22 ......................................................................................................................... 23, 46 Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 12 of 98 xii 28 U.S.C. § 1391 ............................................................................................................... 49, 51, 52 Fed. R. Civ. P. 4 ............................................................................................................................ 64 Fed. R. Civ. P. 4(f) ........................................................................................................................ 61 Fed. R. Civ. P. 4(k)(2)................................................................................................................... 52 Fed. R. Civ. P. 8 ............................................................................................................................ 55 Fed. R. Civ. P. 8(d)(2)................................................................................................................... 53 N.Y. C.P.L.R. 302 ............................................................................................................. 49, 50, 51 Other Authorities 14D Charles Alan Wright et al., Federal Practice and Procedure § 3810 (4th ed. 2013) .... 45, 51 Barclays Capital Securities Limited, Directors’ Report and Financial Statements 2016 (2017), available at https://beta.companieshouse.gov.uk/company/01929333/filing-history .................................. 48 Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 13 of 98 1 PRELIMINARY STATEMENT Moving Defendants directly and through the use of U.S.-based affiliates colluded to achieve the goals of their conspiracy-to make as much money as they could in the USD SSA bond market at the expense of U.S. investors. Still, the moving Defendants spend pages arguing the Court lacks personal jurisdiction over them. But their brief is a grand exercise in obfuscation and misdirection. By arguing about the need for the contents of specific phone calls and framing the issue as one of mere foreseeability, the moving Defendants apparently hope to distract the Court from the simplicity of the core, dispositive facts at issue. For instance, the moving Defendants assert that Plaintiffs have failed to allege any “suit- related conduct” occurring anywhere in, or sufficiently targeted at, the United States. But this ignores Plaintiffs’ allegations that they were themselves in direct privity with moving Defendants Barclays Bank PLC and Citigroup Global Markets Limited. Being the direct counterparty with a U.S. plaintiff in a transaction that the same defendant caused to be priced artificially is a straightforward case of “suit-related conduct.” Indeed, the only defense argument even potentially applicable here is the assertion that we do not allege these contacts with sufficient particularity. But, that Plaintiffs were in direct privity with Barclays Bank PLC and Citigroup Global Markets Limited is a well-pled fact that must be taken as true. There was also “suit-related conduct” because Plaintiffs were also in privity with the domestic (non-moving) affiliates of Barclays, BNP Paribas, Citigroup, Credit Suisse, Nomura, RBC, and TD Bank. These transactions trigger jurisdiction over the moving Defendants because Plaintiffs plausibly plead that all marketing, pricing, and approval decisions originate from the Foreign Dealer Defendants, even if the trades were later booked by their affiliates in the United States. The structure of the banks Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 14 of 98 2 Accordingly, named Plaintiffs were victimized by the Foreign Dealer Defendants not nor because the Foreign Dealer Defendants set policies in the abstract. Rather, the named Plaintiffs were directly injured when the Foreign Dealer Defendants specifically approved and priced the named Plaintiffs’ transactions, knowing those specific transactions were with a U.S. counterparty. Such conduct is plainly “suit-related” conduct. The moving Defendants repeatedly rely on recent cases where courts, including the Second Circuit in Schwab, found specific jurisdiction lacking over foreign banks who manipulated LIBOR and similar benchmark rates. But, there are dispositive differences between this case and the benchmark rate cases: manipulating a financial benchmark figure indiscriminately caused harm to everyone around the globe in one fell swoop. The act of causing artificiality was thus allegedly separate from the act of transacting with any particular plaintiff. Here, by contrast, Defendants’ London trading desks provided specific prices for specific transactions with U.S. counterparties. In terms of the targeted nature of the conduct at issue, Defendants’ cases are of academic interest only. Specific personal jurisdiction is also appropriate here on the independent ground that moving Defendants “purposefully availed” themselves of the benefits of doing business in the United States. Indeed, the purpose and goal of the conspiracy was for the conspirators to “avail” themselves of the opportunity to rip off U.S. customers to increase profits. By aiming their conspiracy at the United States, Defendants are subject to jurisdiction under a straightforward Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 15 of 98 3 application of the Calder “effects” test. While Defendants argue mere “foreseeability” that USD SSA bonds would be bought and sold in the United States is not enough, the facts here show the conspiracy was expressly aimed at the United States. Plaintiffs’ allegations also provide two additional, distinct grounds for personal jurisdiction. First, because the moving Defendants’ U.S. affiliates were taking marketing, sales, and pricing direction from their respective affiliated Foreign Dealer Defendants, the U.S. affiliates were acting as agents for their respective London desks. Second, Schwab made clear that, when a conspiracy has been adequately alleged, it is appropriate to impute the jurisdictional acts of each defendant even to members of the conspiracy that are not corporate affiliates. Moving Defendants do not, and could not, dispute that if the acts of their affiliates are imputed under agency principles-or the acts of all the co-conspirators are imputed pursuant to conspiracy jurisdiction-then the Court has specific jurisdiction over every Defendant. Finally, this Court provides a proper venue for this case. Every Defendant “transacted business” in this District as that term is used in the venue portion of the Clayton Act, including by way of the USD SSA transactions at issue in this case. Venue is also proper under 28 U.S.C. § 1391, which removes the ability of foreign defendants to attempt to object to this forum. STATEMENT OF RELEVANT JURISDICTIONAL FACTS A. Almost All of the Foreign Dealer Defendants Approved and Set Artificial Prices for the Named Plaintiffs’ USD SSA Transactions The named Plaintiffs executed USD SSA bond transactions directly with Barclays Bank PLC and Citigroup Global Markets Limited. Second Consolidated Amended Complaint, Dkt. No. 506 (the “Complaint” or “SAC”) ¶¶ 52, 70. Plaintiffs allege that those same Foreign Dealer Defendants set the prices for those transactions. Id. ¶¶ 37-41, 51-52, 69-70, 159-374. Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 16 of 98 4 The named Plaintiffs also executed USD SSA bond transactions with Barclays Capital Inc.; BNP Securities, Citibank N.A.; Citigroup Global Markets Inc.; Credit Suisse Securities (USA) LLC; Nomura Securities International, Inc.; RBC Capital Markets, LLC; and TD Securities (USA) LLC.1 In other words, the named Plaintiffs had a USD SSA bond transaction with the domestic affiliate of every Foreign Dealer Defendant except for Crédit Agricole. While these additional trades had a domestic (non-moving) affiliate as the contractual counterparty, the Complaint details how the named Plaintiffs’ transactions were neither approved nor priced by that counterparty alone. To the contrary, the transactions were priced and approved by the Foreign Dealer Defendants who knew they were providing a specific approval and a specific price for a specific U.S. counterparty: Alaska Permanent Fund Corporation’s decisions to buy and sell USD SSA bonds were made in the United States, after placing inquiries with U.S.-based salespeople working at the Dealer Defendants, who then passed the inquiry to the Dealer Defendants’ London-based traders for a price. The U.S.-based salespeople then received the price and gave it to Alaska Permanent Fund Corporation’s domestic investment manager in the United States. Finally, the purchase or sale transaction was executed in the United States, and either the USD SSA bond or the sale proceeds were delivered to Alaska Permanent Fund Corporation in the United States. The Dealer Defendants’ London desks knew they were pricing a trade for a U.S.-based investor and that the price would be conveyed back to the U.S.-based investor and result in a transaction executed in the United States, as they intended. 1 See SAC ¶¶ 53 (Plaintiffs Alaska Department of Revenue, Alaska Permanent Fund Corporation, and Iron Workers executed USD SSA bond trades with Defendants Barclays Capital Inc.), 61 (Plaintiffs Alaska Department of Revenue and Alaska Permanent Fund Corporation executed USD SSA bond trades with Defendant BNP Securities), 66 (Plaintiffs Alaska Permanent Fund Corporation executed USD SSA bond trades with Defendant Citibank N.A.), 68 (Plaintiff Alaska Department of Revenue and Alaska Permanent Fund Corporation executed USD SSA bond trades with Defendant Citigroup Global Markets Inc.), 77 (Plaintiffs Alaska Department of Revenue, Alaska Permanent Fund Corporation, and Iron Workers executed USD SSA bond trades with Credit Suisse Securities (USA) LLC), 93 (Plaintiff Iron Workers executed USD SSA bond trades with Nomura Securities International), 99 (Plaintiffs Alaska Department of Revenue, Alaska Permanent Fund Corporation, and Iron Workers executed USD SSA bond trades with RBC Capital Markets, LLC), 105 (Plaintiffs Alaska Department of Revenue and Iron Workers executed USD SSA bond trades with Defendant TD Securities (USA) LLC); see also id. ¶¶ 36-41 (similar allegations made on a plaintiff-by-plaintiff basis). Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 17 of 98 5 SAC ¶ 37 (emphasis added); see also id. ¶¶ 39 (same, for Alaska Department of Revenue), 41 (same, for Iron Workers). All of the Foreign Dealer Defendants, except for Crédit Agricole, played this central role in connection with the named Plaintiffs’ trades. For instance, with respect to Plaintiffs’ transactions with the BNP Paribas defendants: Those transactions were done at artificial prices at the direction of and with the knowledge and consent of [Foreign Dealer Defendant] BNP Paribas S.A., who knew such transactions were with U.S. counterparties. Id. ¶ 61; see also id. ¶¶ 66-70 (same, for transactions with Citibank), 77 (same, for transactions with Credit Suisse), 93 (same, for transactions with Nomura), 99 (same, for transactions with RBC), 105 (same, for transactions with TD Bank). The Foreign Dealer Defendants’ pricing and approval of USD SSA transactions with the named Plaintiffs, knowing they were transacting with U.S. counterparties, was no coincidence. Rather, this is how the Defendants structured their USD SSA operations. Specifically, “[a]ny price for an SSA bond had to come through Defendants’ London desks”: If the U.S.-based customer was interested in a particular bond or bonds, the Defendants’ U.S.-based salesperson would then typically either contact the Defendant’s London desk directly for a quote on the bond or contact a U.S.-based trader who would then contact the London Desk. Id. ¶¶ 390, 398. In other words, an “essential step[]” in the conspiracy was that the “London- based SSA bond trader[s]” would give their U.S. cohorts “the price[]”; “The London-based traders and entities priced the trades, approved the trades, and had the power to cancel trades.” Id. ¶ 396; see also id. ¶ 214 (Deutsche Bank cancels trade once it learns that Credit Suisse was on the other side). This was the process regardless of which bank affiliate eventually booked a transaction. Id. ¶¶ 51-56, 59-61, 64-70, 75-79, 92-94, 97-100, 103-05, 396-98. Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 18 of 98 6 This dynamic between the London-based and U.S.-based affiliates is illustrated in several of the named Plaintiffs’ transactions identified in the Complaint. B. The Foreign Dealer Defendants Also Executed USD SSA Transactions With Other Members of the U.S. Class The Foreign Dealer Defendants “operated as primary dealers in the USD SSA bond market.” SAC ¶ 3. They were “dominant players in the overall USD SSA bond market,” which currently has over $960 billion in USD SSA bonds outstanding. Id. ¶¶ 124, 505. These bonds were “primarily marketed and sold to U.S. investors.” Id. ¶ 32. The Foreign Dealer Defendants issued many billions of USD SSA bonds to U.S. class members during the class period. The Foreign Dealer Defendants “continuously and deliberately exploited the U.S. market for USD SSA bonds and U.S. investors” by, among other things, transacting in USD SSA bonds in the United States and in New York at artificial prices, knowing such transactions were with U.S. counterparties. Id. ¶ 31. For example, the Complaint alleges: [D]uring the Class Period, BCSL . . . directed its collusive USD SSA bond trading activities to the United States, including to New York in particular, and engaged in these activities in the United States, including in New York. BCSL . . . itself purposely transacted in USD SSA bonds in the United States with Class members at artificial prices, knowing such transactions were with U.S. counterparties[.] Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 19 of 98 7 Id. ¶ 56 (emphasis added).2 Notably, most of the Foreign Dealer Defendants do not dispute that they themselves “execut[ed] USD SSA bond trades with members of the Class.”3 Only BNP Paribas, Barclays Services Limited, and The Toronto-Dominion Bank purport to dispute that they did so. Dkt. No. 520 (“Juris. Mem”). at 13 n.15. In support of its denial, BNP Paribas cites the declaration of Stephanie Gyetvan. Juris. Mem. at 13 n.15. But this declaration claims only that BNP Paribas’ trading desk was located in London. Dkt. No. 522-3 (“Gyetvan Decl.”) ¶ 7. A desk located in London can execute transactions with U.S. class members.4 The Complaint’s allegation that BNP Paribas itself executed USD SSA transactions with class members must still be taken as true. However, even if its denial, and those of Barclays Services Limited and The Toronto-Dominion Bank are credited, they are irrelevant. Privity is not a requirement for jurisdiction. See Sections I.A.2, I.B, I.C, and IV below. C. The Foreign Dealer Defendants Priced and Approved Still More Transactions With Other Members of the U.S. Class In addition to direct transactions, there were also trades where a domestic affiliate of a Foreign Dealer Defendant served as the technical counterparty. The Foreign Dealer Defendants had a direct role in these additional trades. Again, Defendants’ USD SSA trading operations were structured such that every single bond trade was approved and priced by the Foreign Dealer Defendants even if the transaction was executed by a U.S. affiliate. For example, in addition to itself executing USD SSA bond transactions with U.S. class members, Barclays Bank PLC: purposefully directed and controlled the trading of even more USD SSA bonds at artificial prices by Barclays Capital Inc. . . . knowing and intending such 3 The Foreign Dealer Defendants that do not declare otherwise are Barclays Bank PLC, Barclays Capital Securities Limited, Citigroup Global Markets Limited, Crédit Agricole Corporate & Investment Bank, Credit Suisse AG, Credit Suisse International, Credit Suisse Securities (Europe) Ltd., Nomura International plc, Royal Bank of Canada, RBC Europe Limited, and TD Securities Limited. 4 Despite having the same exact declaration on file at the time, BNP Paribas did not previously dispute the allegation that it executed trades with class members. Compare Juris. Mem. at 13 n.15 with Dkt. No. 346 at 16 n.19. Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 20 of 98 8 transactions were with Class members in the United States, and booked the profit from such trades. Id. ¶ 51.5 In exercising such control, the Foreign Dealer Defendants knew the specific (artificial) prices they were setting were for use in a transaction with a U.S. counterparty. Id.6 D. Defendants Committed Additional Acts in Furtherance of the Conspiracy in the United States and New York Apart from their actual trades with U.S. counterparties, the Foreign Dealer Defendants carried out many additional fundamental steps in furtherance of their conspiracy in the United States, often in New York, including: an inquiry by a U.S. investor to a U.S. salesperson; the U.S. salesperson asking for and receiving a price from a London-based trader, the U.S. salesperson relaying the price to the U.S. investor; the U.S. salesperson relaying the U.S. investor’s decision to the trader; and the ultimate execution of the transaction. SAC ¶¶ 390-93. Defendants’ conspiracy involved a “constant flow of market information to and from Defendants’ U.S.- and New York-based salespeople and traders and the London SSA desk.” Id. ¶ 398. The Foreign Dealer Defendants both responded to specific U.S. investor inquiries, and directed their U.S. colleagues as to which bonds to push on U.S. investors. Id. ¶ 390. Every day, the Foreign Dealer Defendants would distribute to their U.S. salespeople a list of their “runs” and 5 See SAC ¶¶ 55 (same, for Barclays Services Limited), 56 (same, for Barclays Capital Securities Limited), 59 (same, for BNP Paribas), 69 (same, for Citigroup Global Markets Limited), 73 (same, for Crédit Agricole), 75 (same, for Credit Suisse AG), 78 (same, for Credit Suisse Securities (Europe) Limited), 79 (same, for Credit Suisse International), 94 (same, for Nomura International plc), 97 (same, for Royal Bank of Canada), 100 (same, for RBC Europe Limited), 103 (same, for The Toronto-Dominion Bank), 104 (same, for TD Securities (USA) LLC). 6 As this case involves a conspiracy not to compete, even those who did not end up in privity on a given transaction took acts directed at the U.S. counterparty. Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 21 of 98 9 “axes,” which summarized the SSA bonds that were available and the specific bonds that the Defendants wanted to buy or sell. Id. The Foreign Dealer Defendants also aided in marketing efforts by communicating directly with U.S. investors. Id. ¶ 391. It was “routine practice . . . for the Dealer Defendants to communicate with U.S.-based investors through a daily call during which SSA bond traders would give information to U.S. investors related to the performance of the SSA bond market.” Id. This allowed the Foreign Dealer Defendants to keep their U.S.-based customers up to date, and gave their customers an opportunity to initiate trades, even if the trades were ultimately booked by a U.S. salesperson. Id. These regular investor calls were supplemented by “meet and greet” bond conferences in New York, which the Foreign Dealer Defendants regularly attended to make connections and generate business. Id. ¶ 392. At these conferences, the Foreign Dealer Defendants would meet in person with their U.S. customers and colleagues, to further promote and facilitate their USD SSA business. The Foreign Dealer Defendants also regularly traveled to New York, outside of the industry-wide conferences, to meet directly with U.S. investors and other traders, salespeople, and others at their affiliated banks. Id. ¶ 393.7 These meetings were often held at the U.S. customer’s request, and involved discussions of the customer’s account and potential additional SSA bonds business for the Foreign Dealer Defendant. Id. ¶ 394-95. During such trips, the traders “committed acts in furtherance of the conspiracy, including promoting, pricing, and executing USD SSA bond trades at manipulative prices.” Id. ¶ 396.8 7 At least one Foreign Dealer Defendant (Crédit Agricole) required its London-based traders to participate in a certain number of customer meetings per day while in New York for business. SAC ¶ 424. 8 Defendants nit-pick at some facts, see, e.g., Juris. Mem. at 4 n.3 (critiquing, but not denying, allegation that Gudka regularly worked in New York), and argue that these allegations should be ignored because they are not tied to specific manipulated trades, see e.g., id. at 5 n.4, 9-10; Pau Mem. at 9. But well-pled factual allegations like these must be taken as true for purposes of a motion to dismiss, and the relevance of these supporting facts is clear: they are additional, in-forum acts by which the Foreign Dealer Defendants promoted and facilitated their USD SSA Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 22 of 98 10 E. Although discovery has not even commenced, SAC ¶¶ 401-92. Rather, Plaintiffs allege Defendants’ conspiracy extended to all of their USD SSA bond transactions with U.S. class members. Some of these chats are summarized below. Amandeep Singh Manku (“Manku”), who worked for Bank of America, Crédit Agricole, and HSBC, was a regular participant in chats with other London-based traders. Id. ¶ 111. bonds business, in furtherance of their conspiracy to manipulate all of their transactions with Plaintiffs and U.S. class members. Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 23 of 98 11 Gary McDonald (“McDonald”), who worked for Bank of America, Citi, and TD Bank, id. ¶ 112, Shailen Pau (“Pau”), who worked for RBC, Credit Suisse, and Crédit Agricole, was registered as a broker with FINRA 9 The Foreign Dealer Defendants argue that the mere existence of such licenses and registrations does not establish jurisdiction. Juris. Mem. at 25 n.26. But Plaintiffs do not claim that such documentation alone establishes jurisdiction. Rather, it is what the Foreign Dealer Defendants did with those licenses-i.e., they were used to market and sell USD SSA bonds to Plaintiffs and U.S. class members-that makes them relevant to the jurisdictional analysis. Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 24 of 98 12 Bhardeep Singh Heer (“Heer”), who worked for Nomura, Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 25 of 98 13 F. The Nature of the USD SSA Bond Market Further Confirms the Conspiracy Targeted the United States and New York Defendants continuously and deliberately exploited the U.S. market for USD SSA bonds and U.S. investors by pricing, approving, and executing USD SSA bond transactions with Plaintiffs themselves, as well as other U.S. class members. As discussed in Sections I.A and I.B below, such conduct alone suffices for specific jurisdiction. Though the moving Defendants try to conflate the issues, a distinct and additional ground for the exercise of specific jurisdiction can be found in the fact that the overall conspiracy was targeted at the United States and U.S. investors. See Section I.C below. The structure of the USD SSA bond market is evidence of this fact: “USD SSA bonds are primarily marketed to investors located in the United States.” SAC ¶ 122; see also id. ¶ 32. Certain USD SSA bonds are known as “Yankee bonds” because they are issued by a foreign entity but are predominantly “traded in the United States and denominated in U.S. dollars.” Id. ¶ 122. According to one study, “over 75% of USD SSA activity came from U.S.-based clients.” Id. The predominant focus on the United States exists because: SSA issuers who wish to target the U.S. bond market specifically will issue bonds in U.S. dollars. The U.S. bond market is particularly attractive for issuers because many U.S.-based investors-including pension funds, asset managers, insurance companies, university endowments, and state and municipal governments-often hold most of their assets in U.S. dollars and may be mandated to invest a certain percentage of their assets in U.S.-dollar denominated assets. The U.S. dollar- denominated segment of the SSA bond market is also attractive to investors located in the United States, particularly those looking for high-quality bonds with higher yields than U.S. Treasuries. Id. ¶ 123. Because the United States is the primary market for USD SSA bonds, any conspiracy not to compete in the pricing of USD SSA bonds would inherently be targeted at the United States. Plaintiffs expressly allege that “the conspiracy directly targeted U.S.-based investors, with Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 26 of 98 14 Defendants intentionally engaging in numerous acts in the United States to rip off their customers based in the United States.” Id. ¶ 21. The intimate relationship between the USD SSA bond market and the United States is apparent from a number of other facts. For example, a large percentage of the outstanding $960 billion in USD SSA bonds are registered with the SEC. Id. ¶ 124. SSA bonds can be sold in the United States without full registration under Rule 144A, provided the buyers are Qualified Institutional Buyers. Id. ¶ 126. USD SSA bonds issued under Regulation S can also be sold to U.S. investors after a short 40-day seasoning period. Id. USD SSA bonds are in fact generally made available to U.S. investors either immediately after issuance, or very soon thereafter. Id. ¶ 126. Prospectuses for USD SSA bonds often refer to New York law, registrars, underwriters, agents, notices, servicers, and custodians. Id. ¶¶ 127-28. G. Defendants’ Declarations Do Not Even Try to Dispute Plaintiffs’ Core Allegations Defendants’ declarations appear to exist only to assert that there is no basis for general jurisdiction, and that the relevant traders were physically “based” outside the United States. Such claims are irrelevant to the actual issues relevant to specific jurisdiction. This is because none of the declarations purport to contradict Plaintiffs’ allegations that (i) Plaintiffs transacted directly with Barclays Bank PLC and Citigroup Global Markets Limited; (ii) Plaintiffs transacted with the affiliates of all the Foreign Dealer Defendants other than Crédit Agricole; (iii) all of Plaintiffs’ own transactions were approved and priced by the Foreign Dealer Defendants, who knew they were doing so for a U.S. transaction; (iv) all but two of the Foreign Dealer Defendants themselves executed transactions with members of the U.S. class, knowing they were doing so for a U.S. transaction; (v) the London-based traders knowingly priced and approved additional Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 27 of 98 15 transactions entered into between an affiliate and members of the U.S. class in a U.S. transaction; or (vi) the United States is the primary market for USD SSA bonds. Declarations regarding Barclays entities. Barclays Bank PLC, by way of Jason Wright, declares that it is a federally registered holding company that has a New York branch office. Dkt. No. 523 (“Wright BBPLC Decl.”) ¶¶ 7-8. It also admits that its New York and Miami offices combined to account for $1.5 billion in revenue in 2017, and employed 257 people in New York. Id. ¶¶ 12, 19, 20. It does not dispute that it transacted in USD SSA bonds with named Plaintiffs and U.S. class members, or that it had a direct role in the marketing, pricing, and execution of USD SSA bond trades with Plaintiffs and U.S. class members that were booked by affiliates. Rather, the declaration merely states that the relevant trading desk was “located” in London. Id. ¶ 21. Barclays Capital Securities Limited, by way of Victoria E.C. Hardy, declares that it does not have a physical presence in the United States, and is not licensed to do banking in the United States. Dkt. No. 522-1 (“Hardy Decl.”) ¶¶ 6-11. But it does not dispute that it transacted in USD SSA bonds with U.S. class members, or that it had a direct role in the marketing, pricing, and execution of USD SSA bond trades with Plaintiffs and U.S. class members that were booked by affiliates. Barclays Services Limited (formerly known as Barclays Capital Securities Limited), by way of Hannah Ellwood, declares that it does not have a physical presence in the United States. Dkt. No. 522-2 (“Ellwood BSL Decl.”) ¶¶ 9-14. It declares that it does not itself “engage in the trading of” USD SSA bonds. This is not surprising since the company appears to be an employee-holding company, existing as the employer of record for those who perform functions for other Barclays entities. Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 28 of 98 16 Id. ¶ 16. Declarations regarding BNP Paribas entities. BNP Paribas, by way of Stephanie Gyetvan, Director of Litigation & Legal Investigations group for BNP Paribas in New York, declares that it has at least one branch in New York; that it has 680 employees in New York; and that it obtains revenue from its U.S. offices, including the New York one. Dkt. No. 522-3 (“Gyetvan Dec. Decl.”) ¶¶ 3-5. Although BNP Paribas argues in the memorandum otherwise, the Gyetvan Declaration does not actually dispute that BNP Paribas transacted in USD SSA bonds with U.S. class members. Nor does BNP Paribas dispute that it had a direct role in the marketing, pricing, and execution of USD SSA bond trades with Plaintiffs and U.S. class members that were booked by affiliates. Rather, the Gyetvan declaration states only that the “desk responsible” was “located” in London. Declarations regarding Citigroup entities. Citigroup Global Markets Limited, by way of Matt Jerman, declares that it is based England and has no “branches or subsidiaries” in the United States. Dkt. No. 522-5 (“Jerman Decl.”) ¶ 3. It admits to employing Gary McDonald, a conspiring trader identified in the Complaint, out of its London office. Id. ¶ 5. It does not dispute that it transacted in USD SSA bonds with Plaintiffs and U.S. class members, or that it had a direct role in the marketing, pricing, and execution of USD SSA bond trades with U.S. Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 29 of 98 17 class members that were booked by affiliates. Rather, it merely declares that the “trading desk responsible for” USD SSA bond trading was “located” in London. Id. ¶ 4. Additionally, Gary McDonald declares that, when he was employed by Citigroup Global Markets Limited, he was “based out of” its London office. Dkt. No. 536 (“McDonald Dec. Decl.”) ¶ 3. Yet he does not dispute that Citigroup Global Markets Limited transacted in USD SSA bonds with U.S. class members, or that it had a direct role in the marketing, pricing, and execution of USD SSA bond trades with U.S. class members that were booked by affiliates. Indeed, he admits that salespeople located in the United States would “contact a trader in London at CGML . . . to discuss the terms.” Id. ¶ 5. Thus, although he declares he did not “directly” interact with U.S. customers, he admits to discussing U.S. transactions with U.S. salespeople. Id. ¶ 6. Finally, he declares the “majority” of Citigroup Global Market Limited’s “business” was “focused” on European and Asian clients. Id. ¶ 4. But he makes no attempt to declare where its USD SSA bond business was “focused.” Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 30 of 98 18 Declarations regarding Crédit Agricole entities. CACIB admits, however, to having two branches in the United States (with 734 full-time employees), one of which is in New York (with 572 full-time employees). Id. ¶¶ 5-6. CACIB has a corporate presence in New York, which is the situs of the Company’s Head of International for the Global Markets Division (Kim Decl. ¶ 1) and its Chief Financial Officer (Chazareix Decl. ¶ 1). Nineteen percent of CACIB’s worldwide income is generated in the United States. Id. ¶ 7. CACIB does not dispute that it transacted in USD SSA bonds with U.S. class members, or that it had a direct role in the marketing, pricing, and execution of USD SSA bond trades with U.S. class members that were booked by affiliates. Declarations regarding Credit Suisse entities. Credit Suisse AG, by way of Daniel Kläy, declares that it is incorporated in Switzerland, but has a branch offices in the United States including 105 employees in its New York branch. Dkt. No. 522-9 (“Kläy CSAG Decl.”) ¶¶ 2, 4, 7. It does not dispute that it transacted in USD SSA bonds with U.S. class members, or that it had a direct role in the marketing, pricing, and execution of USD SSA bond trades with Plaintiffs and U.S. class members that were booked by affiliates. Rather, it declares only that “no U.S. based employee . . . engaged in trading of” USD SSA bonds. Id. ¶ 8 (emphasis added). Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 31 of 98 19 Credit Suisse International, by way of Damian M. Bisseker, declares it is “domiciled” in the United Kingdom, and has no employees, offices, branches, or subsidiaries in the United States. Dkt. No. 522-10 (“Bisseker CSI Decl.”) ¶¶ 2-6. It declares that in 2016 it had no “consolidated revenue attributable” to the United States in its published annual report. Id. ¶ 7. However, it does not dispute that it transacted in USD SSA bonds with U.S. class members, or that it had a direct role in the marketing, pricing, and execution of USD SSA bond trades with Plaintiffs and U.S. class members that were booked by affiliates. Credit Suisse Securities (Europe) Limited (“CSSEL”), by way of another Bisseker declaration, declares that it is “domiciled” in the United Kingdom, and has no offices, branches, or employees in the United States. Dkt. No. 522-11 (“Bisseker CSSEL Decl.”) ¶¶ 2-4, 7. But CSSEL has sixteen subsidiaries in the United States. Id. ¶ 5. And it admits to employing conspiring trader Pau out of London. Id. ¶ 8. CSSEL does not dispute that it transacted in USD SSA bonds with U.S. class members, or that it had a direct role in the marketing, pricing, and execution of USD SSA bond trades with Plaintiffs and U.S. class members that were booked by affiliates. Rather, it declares only that “no U.S. based employee” engaged in the trading of USD SSA bonds on the secondary market. Id. ¶ 9 (emphasis added). Declarations regarding Nomura entities. Nomura International plc, by way of Daisy Alice Le Vay, declares that it is “only” an “indirect affiliate” of Nomura Securities International, Inc. Dkt. No. 522-13 (“Le Vay Dec. Decl.”) ¶ 6. It emphasizes it keeps separate books and records. Id. In a separate Daisy Alice Le Vay declaration, also on behalf of Nomura International plc, Le Vay adds that Nomura International plc is organized and headquartered in the United Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 32 of 98 20 Kingdom and has no employees, branches, or property in the United States. Dkt. No. 522-12 (“Le Vay Jul. Decl.”) ¶¶ 4-10. Nomura International plc does not dispute that it transacted in USD SSA bonds with U.S. class members, or that it had a direct role in the marketing, pricing, and execution of USD SSA bond trades with Plaintiffs and U.S. class members that were booked by affiliates. Rather, it simply declares the relevant desk was “located” in London. Id. ¶¶ 4, 13. Declarations regarding RBC entities. Royal Bank of Canada, by way of Paul Serritella, Director and Senior Counsel for Royal Bank of Canada located in New York, declares that it is a Canadian bank headquartered in Canada. Dkt. No. 522-14 (“Serritella Decl.”) ¶ 3. It admits to having nine offices in the United States. Four of those offices are federally licensed branches, three of which are located in New York. Id. ¶ 4. Royal Bank of Canada employs 8,000 individuals in the United States, and admits that nineteen percent of its worldwide revenue comes from its operations in the United States. Id. ¶ 5. It does not dispute that it transacted in USD SSA bonds with U.S. class members, or that it had a direct role in the marketing, pricing, and execution of USD SSA bond trades with Plaintiffs and U.S. class members that were booked by affiliates. RBC Europe Limited, by way of Andriana Zacharia, declares that it is organized under the laws of the United Kingdom and has its principal place of business there, with the rest of its operations “heavily concentrated” in Europe. Dkt. No. 522-15 (“Zacharia Decl.”) ¶¶ 4-5. It declares it has “no offices or employees” in the United States, and is not “licensed by the federal government to conduct banking” business in the United States. Id. However, it does not dispute that it transacted in USD SSA bonds with U.S. class members, or that it had a direct role in the Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 33 of 98 21 marketing, pricing, and execution of USD SSA bond trades with Plaintiffs and U.S. class members that were booked by affiliates. Declarations regarding TD Bank. The Toronto-Dominion Bank, by way of Moti Jungreis, declares that it is chartered in Canada and has its headquarters there. Dkt. No. 522-16 (“Jungreis Decl.”) ¶ 4. It admits to having two branch locations in the United States, one of which is in New York. Id. ¶ 5. It also admits to having 260 employees in the United States, and generating at least C$9 billion in revenue from the United States. Id. ¶¶ 6-7. It declares the trading desk “responsible” for USD SSA bond transactions was “located” in London. Id. ¶ 8. And it declares it did not itself engage in USD SSA bond transactions with U.S. based counterparties. Id. ¶ 9. But it does not dispute that it had a direct role in the marketing, pricing, and execution of USD SSA bond trades with Plaintiffs and U.S. class members that were booked by affiliates. LEGAL STANDARD Plaintiffs need only make a prima facie showing that personal jurisdiction exists. See S. New Eng. Tel. Co. v. Glob. NAPS Inc., 624 F.3d 123, 138 (2d Cir. 2010). “[A] plaintiff challenged by a jurisdiction testing motion may defeat the motion by pleading in good faith, legally sufficient allegations of jurisdiction. At that preliminary stage, the plaintiff’s prima facie showing may be established solely by allegations.” Dorchester Fin. Sec., Inc. v. Banco BRJ, S.A., 722 F.3d 81, 84-85 (2d Cir. 2013). Plaintiffs’ factual allegations are taken to be true, and “pleadings and affidavits [are construed] in the light most favorable to plaintiffs, resolving all doubts in their favor.” Id. at 85. Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 34 of 98 22 A court may assert personal jurisdiction over a defendant if three requirements are met: (1) procedurally proper service of process;10 (2) “a statutory basis for personal jurisdiction that renders such service of process effective”; and (3) “the exercise of personal jurisdiction . . . comport[s] with constitutional due process principles.” Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 673 F.3d 50, 59-60 (2d Cir. 2012). To comport with due process, minimum contacts can be shown for specific jurisdiction by (i) the “purposeful availment” test, or (ii) the “effects” test. See, e.g., Best Van Lines, Inc. v. Walker, 490 F.3d 239, 242-43 (2d Cir. 2007). Even a foreign defendants’ wholly extraterritorial acts can give rise to minimum contacts. Walden v. Fiore, 571 U.S. 277, 284-88 (2014) (citing Calder v. Jones, 465 U.S. 783, 789 (1984)). Plaintiffs’ burden is not a heavy one-“[s]o long as it creates a ‘substantial connection’ with the forum, even a single act can support jurisdiction.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 n.18 (1985). Where a “defendant deliberately has engaged in significant activities within a [forum],” it is “presumptively not unreasonable to require him to submit to the burdens of litigation in that forum.” Id. at 475-76. ARGUMENT I. THE CLAYTON ACT PROVIDES FOR BOTH PERSONAL JURISDICTION AND VENUE OVER THE FOREIGN DEALER DEFENDANTS Defendants argue that Plaintiffs’ claims “do not arise from any of Foreign Dealer Defendants’ purported suit-related contacts with the forum.” Juris. Mem. at 7. This argument withers under scrutiny. For starters, “the jurisdictional relevance of an act depends on the goal of the conspiracy.” FrontPoint Asian Driven Event Fund, L.P. v. Citibank, N.A., 2018 WL 4830087, at *29 (S.D.N.Y. Oct. 4, 2018) (“SIBOR II”). Here, Plaintiffs have demonstrated a plethora of suit-related contacts related to the goal of the conspiracy-i.e., increased profits from 10 The moving Defendants have not challenged service of process. Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 35 of 98 23 the manipulation of USD SSA bonds in the United States, including: (i) the named Plaintiffs were in direct privity with Barclays Bank PLC and Citigroup Global Markets Limited on transactions that they artificially priced, knowing they were doing so on a specific transaction with a U.S. counterparty, see Section I.A.1 below; (ii) all but one of the Foreign Dealer Defendants approved and artificially priced transactions between the named Plaintiffs and the banks’ domestic affiliates, knowing they were doing so on a specific transaction with a U.S. counterparty, see Section I.A.2 below; (iii) all but two Foreign Dealer Defendants themselves entered into artificially priced transactions with other members of the U.S. class, see Section I.B below; (iv) every Foreign Dealer Defendant was responsible for the pricing of transactions with members of the U.S. class, knowing they were doing so for transactions with U.S. counterparties, see id.; and (v) a conspiracy to artificially price USD SSA bonds on transactions with U.S. counterparties was necessarily “aimed at” the United States, see Section I.C below. Under Section 12 of the Clayton Act, “[a]ny suit, action, or proceeding under the antitrust laws against a corporation may be brought not only in the judicial district whereof it is an inhabitant, but also in any district wherein it may be found or transacts business; and all process in such cases may be served in the district of which it is an inhabitant, or wherever it may be found.” 15 U.S.C. § 22. Thus, for personal jurisdiction, Plaintiffs must show only that Defendants had the requisite minimum contacts with the forum such that the exercise of jurisdiction comports with due process. See, e.g., In re Magnetic Audiotape Antitrust Litig., 334 F.3d 204, 207 (2d Cir. 2003) (per curium) (holding that Section 12 “enables courts to extend personal jurisdiction over corporations to the limits permitted under the Fifth Amendment’s due process clause,” which entails a “minimum contacts analysis”). Moving Defendants seek to isolate each of the well-pled Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 36 of 98 24 allegations in the Complaint and then argue why each fact, standing on its own, should not give rise to personal jurisdiction. Juris. Mem. at 8-23. But the more pertinent question is whether each fact, considering the “totality of the circumstances,” support that finding. Licci, 732 F.3d, 170. All of the above acts together constitute “minimum contacts” with this forum under that test. Regarding venue, under the Clayton Act, Plaintiffs need only show that the Defendant “transacted business” in this District. For similar reasons that personal jurisdiction exists- namely, that the Foreign Dealer Defendants were responsible for the marketing, approval, execution, and pricing of billions of dollars’ worth of USD SSA bonds transactions here- Plaintiffs have also shown that this Action is properly venued. See Section I.E below. A. Minimum Contacts Exist Because of the Foreign Dealer Defendants’ Responsibility for the Named Plaintiffs’ Transactions 1. Minimum contacts exist for Barclays Bank PLC and Citigroup Global Markets Limited because they executed transactions with Plaintiffs at artificial prices The Foreign Dealer Defendants argue that allegations regarding the lead Plaintiffs’ transactions should be “ignored.” Juris. Mem. at 15. But the Complaint squarely alleges that Barclays Bank PLC and Citigroup Global Markets Limited themselves executed USD SSA trades with the named Plaintiffs in the United States. See SAC ¶¶ 52, 70. The existence of those contracts is a simple, well-pled fact that must be taken as true. Notably, neither entity actually denies that it entered into USD SSA transactions with Plaintiffs. And these Defendants cite no case where the alleged existence of a transaction between the parties was “ignored.” To the contrary, courts have repeatedly rejected Defendants’ implicit call for a schedule of plaintiffs’ transactions at the pleading stage. See In re Foreign Exch. Benchmark Rates Antitrust Litig. (“FOREX”), 2016 WL 1268267, at *6 (S.D.N.Y. Mar. 31, 2016) (finding the Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 37 of 98 25 argument that “Plaintiffs have not identified a single trade at issue in this litigation” to be “unavailing”); Alaska Elec. Pension Fund v. Bank of Am. Corp, 175 F. Supp. 3d 44, 53 (S.D.N.Y. 2016) (“ISDAfix”) (rejecting argument that plaintiffs must allege specifics linking each of their trades to an alleged manipulative act); see also Gelboim v. Bank of Am. Corp., 823 F.3d 759, 770 (2d Cir. 2016) (noting that the injury component of constitutional standing was “easily satisfied” by plaintiffs’ allegation “that they were harmed by receiving lower returns on LIBOR-denominated instruments as a result of defendants’ manipulation”). Barclays Bank PLC and Citigroup Global Markets Limited also argue that their own trades with the named Plaintiffs should not count for minimum contacts purposes because Plaintiffs “fail to plausibly allege any wrongdoing” on those transactions. Juris. Mem. at 15. But these same Foreign Dealer Defendants also marketed and provided the artificial prices for those direct transactions with Plaintiffs. SAC ¶¶ 37-41, 51-52, 69-70. As set forth in Plaintiffs’ merits memorandum, Plaintiffs plausibly allege that all of Defendants’ USD SSA transactions were impacted by the conspiracy not to compete. The allegations that Plaintiffs’ contracts with Barclays Bank PLC and Citigroup Global Markets Limited existed and were part of the conspiracy being well-pled, it is obviously the case that those banks engaged in “suit related conduct” in and aimed at the U.S.11 For instance, in Eades v. Kennedy, PC Law Offices, the Second Circuit held that there was personal jurisdiction over an out-of-state defendant who “mail[ed] one debt collection notice to [one plaintiff in New York], engag[ed] in one debt collection phone call with [her], and mail[ed] a summons and 11 The Foreign Dealer Defendants also seek to distract the Court by arguing that phone calls and marketing trips, in the abstract, do not by themselves establish jurisdiction. Juris. Mem. at 8-10. To be clear, the Defendants’ consistent and ongoing program of electronic, telephonic, and physical contacts with U.S. investors supported their sales activities, and further demonstrates their purposeful availment of the United States. SAC ¶¶ 389-93, 396-400; see also Section I.C below. But the Foreign Dealer Defendants’ approval and pricing of the transactions at issue would itself be sufficient, for the reasons set forth above, even if none of those supporting allegations regarding trips, meetings, and phone calls existed. Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 38 of 98 26 complaint” to multiple plaintiffs’ New York homes. 799 F.3d 161, 168 (2d Cir. 2015). Those were ample minimum contacts, because the plaintiffs’ claims that the defendant used improper debt collection practices arose “directly from” the “business communications into New York” that the defendant directed at the plaintiffs. Id. The court reached a similar result in Chloe v. Queen Bee of Beverly Hills, LLC, which involved a trademark infringement claim by a New York fashion company against an out-of-state competitor. 616 F.3d 158, 162 (2d Cir. 2010). The plaintiff’s allegations that the competitor offered bags for sale to New York consumers on a website and sold “at least one counterfeit Chloé bag” to a New Yorker left “no doubt that [the competitor’s] conduct was purposefully directed toward the forum State” and established the requisite minimum contacts. Id. at 171.12 Charles Schwab Corp. v. Bank of America Corp., 883 F.3d 68, 82 (2d Cir. 2018), again confirms that direct, in-forum transactions with the plaintiff “easily” establish personal jurisdiction. Schwab involved claims for persistent suppression of the LIBOR interest rate benchmark, which was used to set the interest rate payments due on financial instruments around the world. Id. at 78. The court in Schwab held that personal jurisdiction existed over the “direct seller” foreign defendants relating to the LIBOR-linked instruments that those defendants sold to plaintiffs in the United States. Id. at 82. Citing the direct, in-forum sales that were held to 12 See also, e.g., In re Aluminum Warehousing Antitrust Litig., 2015 WL 6472656, at *12-13 (S.D.N.Y. Oct. 23, 2015) (“Aluminum Warehousing II”) (finding personal jurisdiction over a foreign defendant where the “smart ass plan” devised by that defendant had significant effects on the U.S. aluminum market, including through sales to U.S. plaintiffs by his U.S. warehouses); U.S. Commodity Futures Trading Comm’n v. Wilson, 27 F. Supp. 3d 517, 529 (S.D.N.Y. 2014) (by executing contracts with two New York entities to trade on electronic exchange, and placing bids on that exchange for the purpose of manipulating prices in New York, defendants were subject to specific jurisdiction in New York); SEC v. Ficeto, 2013 WL 1196356, at *4-6 (C.D. Cal. Feb. 7, 2013) (finding personal jurisdiction over foreign defendant who artificially inflated the price of U.S. over-the-counter securities transacted in the forum). See generally Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 780 (1984) (specific jurisdiction exists “when the cause of action arises out of the very activity being conducted” inside the forum); McGee v. Int’l Life Ins. Co., 355 U.S. 220, 223 (1957) (holding that it was “apparent” that personal jurisdiction was proper in California where the suit was based on a contract with a California-based plaintiff, even where defendant was in Texas and proffered the underlying insurance policy from there). Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 39 of 98 27 establish jurisdiction in Eades and Chloe, the court in Schwab found that “[t]he solicitation and sale of financial instruments to Schwab in California are equally sufficient.” Id. at 83.13 Here, Barclays Bank PLC and Citigroup Global Markets Limited were themselves “direct sellers” to Plaintiffs in the United States, and were responsible for the price artificiality. Defendants seize on portions of Schwab that dismissed certain other claims on jurisdiction grounds. But the claims that were lacking in Schwab were those “premised solely on Defendants’ false LIBOR submissions in London,” 883 F.3d at 83 (emphasis added), which were done to “project an image of financial stability to investors” by “understating their true borrowing costs,” id. at 78. This distinction-between the claims tied to specific transactions and those relating only to the reputation-driven manipulation of the benchmark-was relevant in Schwab because LIBOR was set by way of a specific person responding to a “poll” of the banks. Changing the benchmark interest rate, in turn, indiscriminately impacted the cash flows for every instrument on Earth that was linked to the LIBOR figure. In other words, the benchmark-suppression context meant Schwab recognized a practical separation between the acts that led to prices being artificial (responding to a poll dishonestly to protect the banks’ reputations) and the acts that led to the entry into any particular deal (buying and selling a LIBOR-linked bond to a specific investor). See id. at 87 (holding that the possibility of defendants profiting from LIBOR suppression was “not the same as furthering a conspiracy through [forum]-directed sales, and nowhere in Schwab’s complaint are there allegations that Defendants undertook such sales as part of the conspiracy”). 13 Previously in reply, the Foreign Dealer Defendants argued (without any legal support) that their direct transactions were insufficient because those transactions were not “billions of dollars’ worth.” But specific jurisdiction plainly does not turn on the amount in controversy. Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 40 of 98 28 Following Schwab, courts have found that the divide between the setting of a benchmark rate outside the United States and plaintiffs’ transactions in the United States is bridged where the plaintiff alleges that the benchmark was manipulated to harm individual transactions, including those of plaintiffs. For instance, SIBOR II involved claims for manipulation of the SIBOR benchmark rate, which was set in Singapore. The court held that, because the complaint “plausibly alleges a profit-motive . . . U.S.-based trading is properly alleged to have been a part of the conspiracy and to be related to the overseas manipulation. Such U.S.-based trading, when alleged to be the object of the conspiracy, can support the exercise of personal jurisdiction.”14 2018 WL 4830087, at *8. Courts have also found the divide to be bridged in benchmark cases where plaintiffs alleged that the manipulation of the benchmark included U.S. personnel. Sonterra Capital Master Fund Ltd. v. Barclays Bank PLC, 2018 WL 6725387, at *30-31 (S.D.N.Y. Dec. 21, 2018). This case is even easier because there is no divide between the acts that caused prices to be artificial and the act of transacting with Plaintiffs. Prices here were not made artificial by bank executives and benchmark poll responders who were supposedly divorced from the daily business of buying and selling LIBOR-linked instruments. Rather, the prices were made artificial when the specific deal was mispriced by the same people responsible for approving that deal in the first place. Similarly, prices here were not made artificial as the foreseeable effect of 14 Defendants instead often cite to FrontPoint Asian Event Driven Fund, L.P. v. Citibank, N.A., 2017 WL 3600425 (S.D.N.Y. Aug. 18, 2017) (“SIBOR I”), which involved claims for manipulation of the SIBOR benchmark rate. But the court there held that jurisdiction was lacking because the complaint did not allege any direct, in-forum transactions related to the conspiracy; in fact, in stark contrast to the case here, there were no plausible allegations that foreign defendants engaged in U.S. transactions for the manipulated products. Id. at *7. As discussed above, after the plaintiffs amended their complaint to allege such transactions, the same court held that those allegations “support the exercise of personal jurisdiction . . . not only for the two defendants who traded with Plaintiff” (i.e., Citi and Deutsche Bank entities that are also Defendants here), “but also for all the Panel Members defendants who participated in the conspiracy” (including Crédit Agricole and many other entities that are also Defendants here). SIBOR II, 2018 WL 4830087, at *8. Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 41 of 98 29 manipulating a benchmark that in turn would impact the cash flows of pre-existing contracts that were linked to that figure. Rather, they were made artificial because the specific transactions were deliberately mispriced. Accordingly, in terms of the targeted nature of the wrongful conduct at issue, this case could not be more different than the cases cited by Defendants. As every one of the “five other judges” Defendants repeatedly refer to were dealing with manipulations of an interest-rate benchmark untethered to specific transactions, those cases are all irrelevant for the same reasons.15 2. Minimum contacts exist for all Foreign Dealer Defendants other than Crédit Agricole because they approved and priced transactions with Plaintiffs Defendants’ assertion they did not engage in any relevant suit-related conduct is also belied by the fact that the named Plaintiffs entered trades with Barclays Capital Inc., BNP Securities, Citibank N.A., Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC, Nomura Securities International, Inc., RBC Capital Markets, LLC, and TD Securities (USA) LLC. SAC ¶¶ 52, 54, 61, 66, 68, 70, 77, 93, 99, 105. As set forth in Plaintiffs’ merits memorandum, all such transactions were artificially priced because of the conspiracy. Critically, as summarized in the Statement of Relevant Jurisdictional Facts Sections A and G above, the 15 For example, in Sullivan v. Barclays PLC, which involved manipulation of the related Euribor rate, the court deemed insufficient “U.S. ties” that related only to activity in the “broader financial services industry,” and not to Euribor. 2017 WL 685570, at *45 (S.D.N.Y. Feb. 2, 2017). Again, Plaintiffs do not rely on Defendants’ general machinations in the financial space-they rely on specific allegations about how specific transactions with U.S. investors were artificially priced. Defendants also frequently cite to Dennis v. JPMorgan Chase & Co. (“BBSW”), 343 F. Supp. 3d 122 (S.D.N.Y. 2018), which involved the BBSW benchmark rate set in Australia by a panel of Australian banks. Id. at 141-142. Citing Schwab, the court held that the sale of BBSW-linked instruments to U.S. investors did not establish jurisdiction over the Australian banks with respect to their alleged false submissions, because the U.S. sales did not cause the false submissions. Id. at 204-206. Here, the sale of USD SSA bonds to U.S. investors is precisely what caused Defendants to set an artificial price for each of those specific transactions. See also In re Platinum & Palladium Antitrust Litig., 2017 WL 1169626, at *1-4 (S.D.N.Y. Mar. 28, 2017) (benchmark price for platinum and palladium); In re LIBOR-Based Fin. Instruments Antitrust Litig. (“LIBOR IV”), 2015 WL 6243526 (S.D.N.Y. Oct. 20, 2015) (U.S. Dollar LIBOR); Laydon v. Mizuho Bank, Ltd. (“Laydon V”), 2015 WL 1515358, at *5-6 (S.D.N.Y. Mar. 31, 2015) (Yen-LIBOR and Euroyen TIBOR ); 7 W. 57th St. Realty Co. v. Citigroup, Inc., 2015 WL 1514539 (S.D.N.Y. Mar. 31, 2015) (U.S. Dollar LIBOR). Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 42 of 98 30 pricing and approval for all of these transactions came from the Foreign Dealer Defendants. Which is to say, Plaintiffs’ pricing inquiries to U.S. affiliates were “passed . . . to the Dealer Defendants’ London-based traders for a price.” SAC ¶¶ 37, 39, 41, 390. Because the pricing inquiry was both specific and coming from U.S. salespeople, the “London desks knew they were pricing a trade for a U.S.-based investor and that the price would be conveyed back to the U.S.- based investor and result in a transaction executed in the United States.” Id. ¶¶ 37, 39, 41. In other words, Plaintiffs plausibly allege that the Foreign Dealer Defendants had before them Plaintiffs’ specific transactions, including those that were ultimately booked by a domestic affiliate. The Foreign Dealer Defendants approved those trades, and set the price at an artificial level, knowing the trades were for U.S. investors. It is thus demonstrably not true that Plaintiffs’ “claims do not arise from any of the Foreign Dealer Defendants’ purported suit-related contacts with the forum.” Juris. Mem. at 7. To the contrary, this case is entirely about the Foreign Dealer Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 43 of 98 31 Defendants’ contacts with this forum. Providing the artificial price used in Plaintiffs’ specific transactions (in response to a U.S.-specific pricing inquiry) is on its face is an intentional, anticompetitive act aimed at the United States that proximately caused Plaintiffs’ injuries, regardless of contractual privity. Whether cast as meeting the “purposeful availment” or “effects” test (or both), such acts plainly meet the minimum contacts requirement. See, e.g., In re Cathode Ray Tube (CRT) Antitrust Litig., 27 F. Supp. 3d 1002, 1012 (N.D. Cal. 2014) (finding personal jurisdiction over foreign manufacturer that “coordinated pricing decisions” with its co-conspirators who sold price-fixed cathode ray tubes to U.S. customers); In re Vitamin C Antitrust Litig., 2012 WL 12355046, at *8 (E.D.N.Y. Aug. 8, 2012) (finding personal jurisdiction over foreign corporation that acted abroad to artificially inflate the price of vitamin C, and was “highly apprised of-if not involved in” its subsidiaries’ sales of the price-fixed goods in New York); Darrick Enters. v. Mitsubishi Motors Corp., 2007 WL 2893366, at *29 (D.N.J. Sept. 28, 2007) (finding personal jurisdiction over foreign corporation that, “while not specifically communicating with Plaintiffs, specifically targeted the United States market and directed its subsidiaries and co-conspirators on how to conduct business in the United States” in a fraudulent manner); State v. Daicel Chem. Indus., Ltd., 2004 WL 5487822 (N.Y. Sup. Ct. Sept. 24, 2004) (holding out-of-state defendants subject to personal jurisdiction in New York because they “made it part of their business plans to cause their subsidiaries or agents to actively target [] customers in the New York market”).16 16 See also In re Fasteners Antitrust Litig., 2011 WL 3563989, at *13 (E.D. Pa. Aug. 12, 2011) (finding personal jurisdiction over foreign manufacturer that “actively participated” in a conspiracy to inflate zipper prices, including by sales from its subsidiaries and other co-conspirators to U.S. customers); In re Vitamins Antitrust Litig., 270 F. Supp. 2d 15, 32 (D.D.C. 2003) (finding personal jurisdiction over foreign defendant that directed its affiliate to “engage[] in substantial sales of price-fixed choline chloride” in the forum to a plaintiff); 777388 Ont. Ltd. v. Lencore Acoustics Corp., 142 F. Supp. 2d 309, 323 (E.D.N.Y. 2001) (“defendants knew that their conduct would harm [plaintiffs] and its business relationships in New York and derived substantial revenues from their prior business dealings with” the plaintiffs). See generally World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980) (“[I]f the sale of a product . . . is not simply an isolated occurrence, but arises from the efforts of the Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 44 of 98 32 Thus, the assertion that Plaintiffs fail to allege “any connection . . . between their claims and the Foreign Dealer Defendants’ conduct” is absurd. Juris. Mem. at 14-15. That connection does not, as Defendants’ disingenuously presume, arise from the agency relationship between themselves and their domestic affiliates. Rather, it is because, again, the Foreign Dealer Defendants themselves provided the transaction-specific artificial prices and approved the specific transactions at issue. Being the party that provided a specific price, for a specifically approved transaction with a specific U.S. counterparty, presents a straightforward case of proximate causation, regardless of what name was put into the final contract.17 To avoid the necessary conclusion that approving and pricing Plaintiffs’ own transactions is sufficient suit-related conduct, Defendants again argue that the transactional allegations can be ignored. Juris. Mem. at 14-15. As discussed in Section I.A.1 above, no law or logic supports the ability to ignore the simple factual allegations that these transactions exist. Defendants next argue that the pricing allegations can also be ignored as “impermissible group pleading.” Juris. Mem. at 12 n.12.18 But the Complaint includes many pages of allegations describing, for each Foreign Dealer Defendant, the roles that defendant played in the conspiracy and the facts linking them to the forum. It is not improper for those allegations to manufacturer or distributor to serve directly or indirectly, the market for its product in other States, it is not unreasonable to subject it to suit in one of those States if its allegedly defective merchandise has there been the source of injury to its owner or to others.”). 17 Defendants hypothesize that their domestic personnel may not have had knowledge of the scheme. Juris. Mem. at 10, 32. As set forth in Plaintiffs’ merits memorandum, Plaintiffs have plausibly pled a claim against every Defendant. But even if it turns out Defendants’ domestic personnel were blind to being fed artificial prices by their foreign counterparts, that would make no difference to the jurisdictional question before the Court. If the Court finds that Foreign Dealer Defendants’ approval and pricing activities are sufficient to trigger personal jurisdiction (we submit it should), that conclusion would not sensibly change even if the Foreign Dealer Defendants’ successfully kept their co-workers in the dark. 18 The Foreign Dealer Defendants also try to avoid this conclusion by misstating Plaintiffs’ theory of the case. and those particular wrongful acts “somehow affected” the price of other transactions. Juris. Mem. at 8. Rather, Plaintiffs’ allegation is that Defendants failed to compete and thus set their prices at an artificial level on each and every trade they entered into with a U.S. counterparty. Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 45 of 98 33 look similar, given that the Foreign Dealer Defendants structured their desks similarly and engaged in the same types of acts in furtherance of the conspiracy-i.e., they all approved and artificially priced transactions with U.S. investors. Those are well-pled facts that must be taken as true, and as discussed in the Statement of Relevant Jurisdictional Facts Section G above, have not been rebutted despite the many declarations submitted by the Foreign Dealer Defendants. Defendants’ last resort-to try to fit this case into the legal framework of the LIBOR benchmarking cases-is also unavailing. Though the Foreign Dealer Defendants were not “direct sellers” in the parlance of Schwab and related benchmarking cases, here that is of no moment. As discussed in Section I.A.1 above, unlike in the benchmarking cases, there is no relevant or practical separation here between the acts causing price artificiality and the act of entering into a specific transaction. The Foreign Dealer Defendants also cite In re Terrorist Attacks on September 11, 2001, 714 F.3d 659 (2d Cir. 2013). See Juris. Mem. at 6-7. But the case actually supports Plaintiffs’ position. While the Second Circuit concluded that it did not have personal jurisdiction over some foreign defendants whose relationship to the attacks was remote (such as charities), the court granted jurisdictional discovery over other defendants whose financial support of Al Qaeda was more direct. See 714 F.3d at 675-79. Here, Plaintiffs’ allegations that the Foreign Dealer Defendants actively and directly marketed, priced, and executed USD SSA bond trades with Plaintiffs that were booked by affiliates is the same sort of direct conduct that makes the Foreign Dealer Defendants amenable to suit. The moving Defendants similarly cite to a related district court decision, In re Terrorist Attacks on September 11, 2001, 349 F. Supp. 2d 765 (S.D.N.Y. 2005). See Juris. Mem. at 33. For the same reasons the Second Circuit opinion only supports Plaintiffs’ position here, so too does the related lower court opinion. See 349 F. Supp. 2d at 812- Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 46 of 98 34 25. The other cases the Foreign Dealer Defendants cite are similarly inapposite given, among other things, Plaintiffs’ allegations here about the involvement of the foreign desks in the pricing of all USD SSA bond transactions.19 In sum, the Foreign Dealer Defendants either executed transactions with Plaintiffs themselves (as is true for Barclays Bank PLC and Citigroup Global Markets Limited) or at a minimum approved and provided the artificial price for transactions with Plaintiffs (as is true for every Foreign Dealer Defendant except Crédit Agricole). As this case indisputably arises out of Plaintiffs’ own transactions, and as the Foreign Dealer Defendants knew they were approving and pricing U.S. transactions, specific jurisdiction over all the Foreign Dealer Defendants except Crédit Agricole is proper for these reasons alone. That said, it should be noted that this is a case about a conspiracy not to compete. Thus, even the non-contracting banks played a role in artificially pricing Plaintiffs’ deals, when they stepped back and allowed one conspiracy member to take the deal at an artificial price. This means personal jurisdiction exists over all the Defendants by way of Plaintiffs’ own transactions-even over Crédit Agricole. B. Minimum Contacts Also Exists for the Foreign Dealer Defendants Because they Marketed, then Specifically Approved and Priced, Billions in Other Transactions With U.S. Class Members Defendants argue that the “bare possibility of a hypothetical transaction between Foreign Dealer Defendants and unnamed absent class members is not a sufficient basis for jurisdiction.” Juris. Mem. at 14. As an initial matter, as discussed in Section I.A. above, minimum contacts exist because of the role the Foreign Dealer Defendants played in the named Plaintiffs’ own 19 See In re Braskem S.A. Sec. Litig., 246 F. Supp. 3d 731, 770 (S.D.N.Y. 2017) (holding that the defendant’s status as a significant shareholder of a subsidiary acting in New York was insufficient to confer specific jurisdiction); Lopez v. Shopify, Inc., 2017 WL 2229868, at *8-9 (S.D.N.Y. May 23, 2017) (declining to exercise personal jurisdiction where none of the defendants’ contacts had anything to do with plaintiff’s claim that a third party used the defendants’ website to host copyright and trademark-infringing content); AmTrust Fin. Servs. v. Lacchini, 260 F. Supp. 3d 316, 332-33 (S.D.N.Y. 2017) (case involved defendants who were Italian corporations that corrupted two Italian arbitrators to get a favorable judgment in Italy). Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 47 of 98 35 transactions. Thus, personal jurisdiction is established even if, as Defendants argue, the Court were required to strictly confine itself to Plaintiffs’ own transactions. But it is also not a “hypothetical” that class members also transacted with Defendants, including with the Foreign Dealer Defendants. In fact, the Defendants were “dominant players in the overall USD SSA bond market,” and were responsible for many billions in USD SSA transactions with U.S. class members. With respect to those additional transactions, the Complaint alleges that Defendants directed their collusive activities to the United States in the same ways as they did with respect to Plaintiffs’ own trades: the Foreign Dealer Defendants “purposely transacted in USD SSA bonds in the United States with Class members at artificial prices, knowing such transactions were with U.S. counterparties” and “purposefully directed and controlled the trading of even more USD SSA bonds at artificial prices by . . . affiliates, knowing and intending such transactions were with Class members in the United States, and booked the profit from such trades.” See, e.g., SAC ¶ 51.20 For the same reasons as set forth above in Section I.A.2, this means that Crédit Agricole is also subject to personal jurisdiction by way of its USD SSA transactions, despite not being in privity with a named Plaintiff. This also provides yet another way that personal jurisdiction can be found over the remaining Foreign Dealer Defendants. To suggest otherwise, the Foreign Dealer Defendants argue that their transactions with absent members of the class are irrelevant to the jurisdictional inquiry. Juris. Mem. at 14. They 20 The Foreign Dealer Defendants previously argued, in reply, that these allegations should be ignored because they are not accompanied with the details of every trade. As discussed above, that level of specificity is not required, even for the named Plaintiffs’ trades. That the Foreign Dealer Defendants transacted with U.S. class members at artificial prices is a well-pled allegation that must be accepted as true. As also discussed above, only BNP Paribas, Barclays Services Limited, and The Toronto-Dominion Bank even try to dispute the allegation that they executed transactions with members of the U.S. class, and BNP Paribas’ denial is baseless. More importantly, none of the Foreign Dealer Defendants deny that they marketed, priced, and approved transactions that were executed with members of the U.S. class by their affiliates. Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 48 of 98 36 stress that the minimum contacts analysis “focuses on the relationship among the defendant, the forum, and the litigation.” Juris. Mem. at 7 (emphasis added, quoting Walden, 134 S. Ct. at 1121). This is a class action, and thus the Foreign Dealer Defendants’ relationship with “the litigation” entails consideration of the transactions executed in the United States, whether with the named Plaintiffs or other class members. See Segal v. Bitar, 2012 WL 273609, at *5 (S.D.N.Y. Jan. 30, 2012) (holding that an online gambling website was subject to personal jurisdiction where the claim arose from injuries to the named plaintiff “and those of the other New York residents”); see also generally Chloé, 616 F.3d at 167 (“the relevant minimum contacts between [the defendant] and New York include the more than fifty sales of designer handbags into New York and are not limited to the narrow subset of one sale [to the plaintiff]”); Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 305 F.3d 120, 128 (2d Cir. 2002) (finding jurisdiction even where acts only “relate to” the claims). The Foreign Dealer Defendants rely heavily on the non-class action case, Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017). There, a number of plaintiffs brought product liability suits in California state court against a defendant for harm they allegedly suffered after ingesting a prescription drug defendant had manufactured and marketed. Id. at 1778. Many of the plaintiffs were non-residents of California who were not prescribed the drug in California. Id. The California Supreme Court concluded that California courts nonetheless had specific jurisdiction. Id. The Supreme Court reversed, concluding that the “sliding scale” approach the state used was incongruent with prior precedent and that there was no specific jurisdiction over the defendant with respect to the non-resident plaintiffs’ claims because there was an inadequate link with California. Id. at 1781-82. Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 49 of 98 37 Bristol-Myers is irrelevant in federal antitrust class action cases. The Supreme Court emphasized that its decision pertained only to the due process limits on the exercise of specific jurisdiction by a state court, not a federal court. Id. at 1783-84. Bristol-Meyers also involved a mass-tort amalgamation of individual claims, not a class action. Justice Sotomayor (in dissent) emphasized the distinction, as in a class action even non-named plaintiffs will be bound by the case’s resolution. Id. at 1789 n.4 (Sotomayor, J., dissenting); see also Gonzalez v. Costco Wholesale Corp., 2018 WL 4783962, at *7-8 (E.D.N.Y. Sept. 29, 2018) (distinguishing Bristol- Myers on this ground); Chinese-Manufactured Drywall Prods. Liab. Litig., 2017 WL 5971622, at *12 (E.D. La. Nov. 30, 2017) (same); Fitzhenry-Russell v. Dr. Pepper Snapple Grp., Inc., 2017 WL 4224723, at *5 (N.D. Cal. Sept. 22, 2017) (same). Thus, that the Court considered each individual plaintiff’s contacts by no means prohibits a court from considering unnamed plaintiffs’ contacts in the class action context. In addition, Bristol-Meyers was not a conspiracy case, where the plaintiff’s harm arises from the concerted action of all the jointly and severally liable defendants. Stepping back so that another bank can take the a trade with a U.S. investor, or colluding with another bank about where to price that trade, involves conduct tied to a plaintiff even if only one entity eventually enters into contractual privity with the investor. The Foreign Dealer Defendants also cite Beach v. Citigroup Alternative Investments LLC, 2014 WL 904650 (S.D.N.Y. Mar. 7, 2014). But in Beach, the discussion of contacts with unnamed class members came in the context of waiver, not minimum contacts. Id. at *8. There, the named plaintiffs filed in New York federal court even though a forum selection clause provided for suit only in New York state court. Id. The court merely held that even though unnamed class members may have had forum selection clauses that would have allowed them to Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 50 of 98 38 bring suit in federal court, named plaintiffs’ jurisdictional arguments were still waived. Id. Plaintiffs’ case here is not about named plaintiffs’ waiver of unnamed plaintiffs’ arguments, and Beach is therefore irrelevant.21 The Foreign Defendants’ reliance on Famular v. Whirlpool Corp., 2017 WL 2470844 (S.D.N.Y. Jun. 7, 2017), fares no better. That case did not concern unnamed plaintiffs at all, much less opine on the relevance of their contacts with the forum. Rather, the court in Famular was concerned with the following, unrelated jurisdictional issues: (i) whether general jurisdiction exists based on a business’ registrations in a state; and (ii) whether jurisdiction over one named plaintiff under one state’s law gives rise to pendant jurisdiction over other named plaintiffs under other states’ laws. Famular is therefore irrelevant as well.22 The few non- duplicative citations provided by the Individual Defendants are just as unavailing on the question of whether transactions with absent class members can be considered at this stage.23 21 While the court in Beach also did a minimum contacts analysis, that analysis did not involve any discussion of the contacts of unnamed class members. Id. at *9-11. The Beach case’s general statement that “contacts with unnamed class members may not be used” is not the universal rule when it comes to minimum contacts as confirmed by the cases the court cited to, Selman and Mintz. In Selman v. Harvard Medical School, 494 F. Supp. 603, 613 n.6 (S.D.N.Y. 1980), absent class members were irrelevant because the court made clear the class was uncertifiable. And Mintz v. Mathers Fund, Inc., 463 F.2d 495 (7th Cir. 1972), was not a minimum contacts case at all but rather held generically that named plaintiffs need to have standing to be a class representative. Id. at 499. Here, for the reasons set forth in Plaintiffs’ merits memorandum, the named Plaintiffs do have standing to bring claims against all co-conspirators, including because they are all jointly and severally liable. 22 The Foreign Dealer Defendants also repeatedly cite Schwab, but that was an individual claim, not a class action. 883 F.3d at 78. It is thus unsurprising that the court in Schwab discussed the plaintiffs’ own transactions-there was nobody else’s to even consider. The Foreign Dealer Defendants also cite Keeton, but that case undercuts their position. There, the Court found the exercise of jurisdiction over defendant appropriate because defendant carried out “part of its general business” in the forum and that portion of the defendant’s business gave rise to plaintiff’s cause of action. 465 U.S. at 779-80. The same is true here. 23 For instance, Police & Fire Retirement System of Detroit v. IndyMac MBS, Inc., 721 F.3d 95 (2d Cir. 2013), was not a case about personal jurisdiction at all. Rather, that case involved a securities fraud class action arising out of IndyMac’s sale of mortgage-backed securities across 106 different offerings. Id. at 102. The district court had previously ruled that the named plaintiffs lacked “constitutional standing” with respect to offerings they did not invest in, because the named plaintiffs could not have been injured by misstatements regarding securities they did not purchase. Id. at 102, 111-12. The Second Circuit opinion merely applied that set of facts to the question of whether potential intervenors could “relate back” their claims to get around the statute of repose. Id. at 111-12. Here, named Plaintiffs have “constitutional standing” vis-à-vis all the Defendants, who are jointly and severally liable for all injuries arising out of their conspiracy not to compete. The Individual Defendants’ citation to Sae Han Sheet Co. v. Eastman Chemical Corp., 2017 WL 4769394 (S.D.N.Y. Oct. 19, 2017) (cited by Manku Mem. at 14), is also unavailing. That case involved a defective product Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 51 of 98 39 Thus, the Court can consider the fact that Crédit Agricole executed, approved, and priced transitions at artificial levels with U.S. class members, even though none of those transactions were with the named Plaintiffs themselves. For similar reasons as discussed in Section I.A.2 above, the fact that Crédit Agricole did so, knowing these were transactions with U.S. class members, gives rise to specific jurisdiction. As for the other Foreign Dealer Defendants, the Court can also consider their transactions with absent class members. It should be unnecessary to do so given the well-pled fact the other Foreign Dealer Defendants approved and priced transactions with the named Plaintiffs. But the Court’s consideration of the Defendants’ transactions with other members of the class would moot the (already baseless) argument that Plaintiffs’ own transactions with Defendants are not sufficiently detailed in the Complaint. C. Minimum Contacts Also Exist Because the Effects of the Conspiracy Were Expressly Aimed at the United States Defendants argue that personal jurisdiction cannot be based “solely on allegations that USD SSA bonds are traded globally.” Juris. Mem. at 21. But that misapprehends Plaintiffs’ theory. Plaintiffs allege, first and foremost, that personal jurisdiction is appropriate under the multiple transactional theories discussed above. None of these grounds has anything to do with the proportion of USD SSA transactions that are done in the United States. Plaintiffs also allege another ground for personal jurisdiction, one arising from the fact that the conspiracy itself was “expressly aimed at” the United States. See Calder, 465 U.S. at 789. Under the “effects” test a court may exercise specific jurisdiction, “even if [as Defendants’ suggest] none of the relevant manufactured in Virginia, sold in Missouri, and used in South Korea. Thus, there was no link to New York, except shipping was routed through the state. It is no wonder that the plaintiffs there argued only that defendants were amenable to suit under general jurisdiction. Id. at *8. Here, Plaintiffs are relying on specific jurisdiction. And in In re Dental Supplies Antitrust Litig., 2017 WL 4217115, at *6 (E.D.N.Y. Sept. 20, 2017) (cited by Manku Mem. at 9; Pau Mem. at 7,11, 13), the defendant did not enter into any direct transactions in New York. Rather, the defendant was the exclusive supplier to a third party, and that third party only made 14 sales into New York. Id. Unlike here, there was no evidence that the defendant had any influence or interest in where the third party sold its products. id. Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 52 of 98 40 conduct took place inside the forum.” FOREX, 2016 WL 1268267, at *4.24 Put another way, “[w]here the goal of the manipulation is to profit wrongfully from transacting in a product, the places where those transactions occur (not just the places where the price manipulation took place) are jurisdictionally relevant.” Sonterra Capital Master Fund Ltd. v. Credit Suisse Grp. AG, 277 F. Supp. 3d 521, 592 (S.D.N.Y. Sept. 25, 2017). Where, as here, a plaintiff seeks to represent a class of individuals that only “engaged in U.S.-based transactions,” surely “the United States is the ‘nucleus of the harm’ alleged.” Id. at 593; see also SAC ¶ 561 (defining the class as being: “All persons or entities who, from January 1, 2009 to December 31, 2015, directly entered into U.S.-dollar denominated SSA bond transactions with Defendants, or their respective subsidiaries or affiliates, in the United States or its territories or otherwise involving U.S. trade or commerce.”). In addition, as explained in the Statement of Relevant Jurisdictional Facts, “USD SSA bonds are primarily marketed to investors located in the United States.” SAC ¶ 122. Voluntarily joining a conspiracy where the business is expressly aimed at the United States, which then causes harm in the United States, means that each co-conspirator has committed suit-related conduct, even if each conspirator is not in contractual privity with all of its victims. This is all the more obvious when one again considers that every co-conspirator is jointly and severally liable, and that this case involves a conspiracy not to compete, i.e., a conspiracy not to enter into privity relationships. 24 See, e.g., In re Capacitors Antitrust Litig., 2015 WL 3638551, at *2-3 (N.D. Cal. June 11, 2015) (finding personal jurisdiction where the foreign defendant physically shipped products to the United States such that, “directly or indirectly, [they were] serving the United States as a market for its products”); In re TFT-LCD (Flat Panel) Antitrust Litig., 2011 WL 5444261, at *5 (N.D. Cal. Nov. 9, 2011) (exercising personal jurisdiction where the defendant’s “conspiratorial activities were expressly targeted at the United States” and knew it would cause harm to U.S. companies); In re Bulk (Extruded) Graphite Prods. Antitrust Litig., 2007 WL 2212713, at *6-9 (D.N.J. July 30, 2007) (finding personal jurisdiction where the defendant “expressly direct[ed] acts in furtherance of price fixing in the United States). Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 53 of 98 41 To suggest otherwise, the Foreign Dealer Defendants first misstate Plaintiffs’ substantive theory of the case. Juris. Mem. at 21. They then turn to argue that the foreseeability of those spillover effects is insufficient to create specific jurisdiction. Id. But Plaintiffs allege that all of Defendants’ transactions were impacted by the conspiracy; Thus, the question is not the foreseeability of spillover effects, but rather the question is whether an ongoing conspiracy not to compete in the market for USD SSA bonds-which are primarily marketed in the United States-was aimed at the United States. It plainly was.25 Second, the Foreign Dealer Defendants note that jurisdiction cannot be based “solely on the fact that USD SSA bonds are traded globally.” Id. But Plaintiffs do not “solely” rely on the fact that some USD SSA bonds are traded here. Rather, the key fact is that they are primarily traded here, and thus the express aim of the Foreign Dealer Defendants’ conspiracy was to derive profits from the United States. That USD SSA bonds happened to also be sold elsewhere does not immunize Defendants from suit. See EMI Christian Music Grp. v. MP3tunes, LLC, 844 F.3d 79, 98 (2d Cir. 2016) (“That MP3tunes served a national market, as opposed to a New York-specific market, has little bearing on our inquiry, as attempts to serve a nationwide market constitute ‘evidence of [the defendant’s] attempt to serve the New York market, albeit indirectly.’”); In re Magnetic 25 See, e.g., Darrick Enterprises v. Mitsubishi Motors Corp., 2007 WL 2893366, at *29 (holding in suit against foreign defendant for conspiracy to defraud automobile dealers in New Jersey that “Plaintiffs have set forth evidence demonstrating that [foreign defendant], while not specifically communicating with Plaintiffs, specifically targeted the United States market”); In re Nat. Gas Commodity Litig., 337 F. Supp. 2d 498, 517 (S.D.N.Y. 2004) (personal jurisdiction existed in New York where purpose was to manipulate market for natural gas futures traded on New York Mercantile Exchange, even though the “wash trades” that were manipulative were done elsewhere). Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 54 of 98 42 Audiotape, 334 F.3d at 208 (personal jurisdiction where agreement to fix prices of products sold worldwide gives rise to personal jurisdiction as long as the U.S. market was one of the places targeted by the conspiracy).26 If the law were otherwise, it “would work to insulate from prosecution those accused of wide-ranging frauds merely because of their expansive scope.” United States v. Hayes, 99 F. Supp. 3d 409, 423 n.4 (S.D.N.Y. 2015) (addressing a LIBOR criminal defendant’s argument and analogizing to personal jurisdiction); see also id. (“[O]ne who enters in a conspiracy with a global scale ‘risk[s] being held to account for his illegal actions where[ever] his [] manipulation efforts had effects.’”). Neither the Supreme Court’s opinion in Walden nor the Second Circuit’s opinion in Waldman v. Palestine Liberation Organization, 835 F.3d 317 (2d Cir. 2016), suggests otherwise. In both cases, the wrongful conduct that caused the plaintiffs’ injuries occurred while the plaintiffs were outside the forum and the courts found that the defendants had not otherwise aimed their conduct at the forum. That the defendant in Walden knew the plaintiffs resided in the forum was insufficient alone to confer specific personal jurisdiction.27 By contrast, U.S. counterparties in USD SSA bond transactions were injured in the United States, right where the Foreign Dealer Defendants knew them to be, and where the Defendants expressly aimed their anticompetitive conduct. In addition, in Walden, it was the plaintiffs’ unilateral conduct-their decision to reside in the forum-which they pointed to in an attempt to argue that the effects of 26 See also Sonterra v. Credit Suisse, 277 F. Supp. 3d at 594 (“[T]he fact that defendants sought to benefit from foreign transactions as well as domestic ones does not negate that they purposefully availed themselves of this forum.”); S.E.C. v. Straub, 921 F. Supp. 2d 244, 255-56 (S.D.N.Y. 2013) (“[T]he Defendants here allegedly engaged in conduct that was designed to violate United States securities regulations and was thus necessarily directed toward the United States, even if not principally directed there.”). 27 See Walden, 571 U.S. at 289 (“[N]one of petitioner’s challenged conduct had anything to do with Nevada itself.”); Waldman, 835 F.3d at 338 (“In this case, the plaintiffs point us to no evidence that these indiscriminate terrorist attacks were specifically targeted against United States citizens, and the mere knowledge that United States citizens might be wronged in a foreign country goes beyond the jurisdictional limit set forth in Walden.”) (emphasis added). Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 55 of 98 43 defendants’ conduct were felt in the relevant forum. But here, Plaintiffs rely on Foreign Dealer Defendants’ own conduct-their voluntary participation in a conspiracy aimed here.28 Third, all moving Defendants rely on decisions involving LIBOR and other financial benchmark rates. See, e.g., Juris. Mem. at 3, 8, 27-28. As discussed in Section I.A above, those benchmarks were set by processes occurring entirely outside the United States, which in turn impacted expected cash flows for every pre-existing and potential future contract simultaneously and indiscriminately. See, e.g., Schwab, 883 F.3d at 78-79. In contrast, Plaintiffs are not relying on the mere “foreseeability” that a single published figure would impact the cash flows for transactions that had their interest rates reset based on that number. Here, the Foreign Dealer Defendants’ marketing, pricing, and approval interactions were transaction-specific, and thus each such artificial pricing decision on a U.S. transaction was targeted only at the U.S. And here, the case is only about U.S. transactions, for a product primarily traded here.29 Fourth, Defendants turn to a procedurally improper attempt to contradict Plaintiffs’ factual allegation that USD SSA bonds are primarily marketed in the United States. Specifically, they (1) argue that the term “Yankee bonds” does not mean the bonds are exclusively sold in the United States; (2) note that the market share data to which the Complaint cites does not cover the full class period; and (3) fault Plaintiffs for not knowing, pre-discovery, how much of each 28 Foreign Dealer Defendants rely on a number of cases decided after Walden that are similarly unavailing given Plaintiffs’ allegations regarding how the USD SSA market works. For instance, in Morill v. Scott Financial Corp., 873 F.3d 1136, 1145 (9th Cir. 2017), the plaintiffs were Arizona residents who brought claims for abuse of process and wrongful institution of civil proceedings stemming from their participation in Nevada litigation. And in Axiom Foods, Inc. v. Acherchem International, 874 F.3d 1064, 1070-71 (9th Cir. 2017), California and Arizona plaintiffs could not subject foreign defendants to jurisdiction where that foreign defendant’s newsletter, which infringed on plaintiffs’ copyrights, was targeted to Western Europe, and at most ten California residents received it. 29 The above distinctions also dispose of the following benchmark cases: BBSW, 2018 WL 6169313, at *54-55; SIBOR I, 2017 WL 3600425, at *7; Platinum & Palladium, 2017 WL 1169626, at *44; Sullivan, 2017 WL 685570, at *45; LIBOR IV, 2015 WL 6243526, at *20; 7 W. 57th St., 2015 WL 1514539, at *10-11; Laydon V, 2015 WL 1515358, at *5-6; and Laydon v. Bank of Tokyo-Mitsubishi UFJ, Ltd. (“Laydon VI”), 2017 WL 1113080, at *5 (S.D.N.Y. Mar. 10, 2017). Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 56 of 98 44 particular employees’ book of business was tied to the United States. Juris. Mem. at 24. But none of these attempts to nitpick about the details undermine Plaintiffs’ well-pled allegations about how the transactions were priced, or that USD SSA bonds are primarily marketed to investors located in the United States. Nor is the allegation that USD SSA bonds are primarily marketed in the United States “contradicting” other parts of Plaintiffs’ complaint. Juris. Mem. at 25. For this assertion, the Foreign Dealer Defendants cite paragraphs that reflect the fact that sometimes USD SSA bonds were traded outside the United States. Id. But being “primarily” marketed in the United States does not mean the bonds were exclusively marketed in the United States. In sum, the factual allegation that USD SSA bonds are primarily marketed in the United States is well-pled and must be accepted as true. Plaintiffs’ allegation that the conspiracy was expressly aimed at the United States is thus not conclusory, but rather flows directly from the nature of this market. This was not “mere untargeted negligence,” Calder, 465 U.S. at 789, and the “effects” test supports jurisdiction because defendants intended and thus “knew the results” of their collusion would be felt in the United States, where USD SSA bonds are primarily marketed and sold, FOREX, 2016 WL 1268267, at *5. D. The Foreign Dealer Defendants’ Nationwide Contacts Must Be Considered The Foreign Dealer Defendants argue that the Court must restrict the analysis to their contacts with New York, rather than the United States as a whole. Juris. Mem. at 34-35. Although many of the acts discussed above in furtherance of the conspiracy did occur in New York, making the issue moot, the Court need not, and should not, limit the analysis to those acts. The Second Circuit itself has applied a nationwide contacts approach to Clayton Act claims, even if it has not yet found a need to directly decide the issue. See In re Magnetic Audiotape Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 57 of 98 45 Antitrust Litig., 334 F.3d 204, 207 (2d Cir. 2003).30 Meanwhile, other Circuit Courts and numerous district courts have expressly decided in favor of a nationwide contacts approach.31 Against this long line of unbroken authority, the Foreign Dealer Defendants meekly posit that the “focus in Daimler on due process . . . compels the rejection of the nationwide contacts approach.” Juris. Mem. at 34. But there is a huge gap between spinning Daimler as having a “focus” on a wide body of law (due process), and concluding that it means long-standing practice in this area need be overturned. It also makes no sense. In applying a federal act in federal court, it is the power of the United States that is being exercised.32 Because the sovereign is the United States, the contacts that matter are those with the United States. Thus, Defendants are being afforded due process. The Court should thus ignore this attempt at distraction and analyze the Foreign Dealer Defendants’ contacts with the United States as a whole. 30 Gucci America, Inc. v. Weixing Li, 768 F.3d 122, 142 n.21 (2d Cir. 2014), cited by the Foreign Dealer Defendants, is not to the contrary. That case did not involve a Clayton Act claim; it was an action to enforce a third party subpoena issued under the Federal Rules. The court merely observed that, as a general matter, the Second Circuit has not yet decided whether the nationwide contacts test applies to all federal statutes, but nonetheless allowed the district court to “appropriately consider whether nationwide contacts are relevant” to its specific jurisdiction analysis. 31 See, e.g., In re Auto. Refinishing Paint Antitrust Litig., 358 F.3d 288, 298 (3d Cir. 2004); Access Telecom, Inc. v. MCI Telecomm. Corp., 197 F.3d 694, 718 (5th Cir. 1999); In re Application to Enforce Admin. of Subpoenas Duces Tecum of the S.E.C. v. Knowles, 87 F.3d 413, 417 (10th Cir. 1996); Busch v. Buchman, Buchman & O’Brien, Law Firm, 11 F.3d 1255, 1258 (5th Cir. 1994); Sonterra v. Barclays, 2018 WL 6725387, at *29-30; SIBOR II, 2018 WL 4830087, at *6; BBSW, 2018 WL 6169313, at *50; Sonterra v. Credit Suisse, 277 F. Supp. 3d at 589; Platinum & Palladium, 2017 WL 1169626, at *40 (applying nationwide contacts approach to Clayton Act and CEA claims); Sullivan, 2017 WL 685570, at *42 (same); LIBOR IV, 2015 WL 4634541, at *18 (same); Laydon V, 2015 WL 1515358, at *1 (applying nationwide contacts approach to CEA claims); In re Amaranth Nat. Gas. Commodities Litig., 587 F. Supp. 2d 513, 526 & n.69 (S.D.N.Y. 2008) (same). As if this flood of uncontroverted authority is not enough, it should be noted that in J. McIntyre Machinery, Ltd. v. Nicastro, 564 U.S. 873 (2011), seven justices agreed that the contacts analysis should be done on a nationwide basis when a federal court is applying a federal statute providing for nationwide service of process. The only issue that divided the dissent from the plurality was whether minimum contacts with the entire United States sufficed to establish personal jurisdiction in state court in addition to its ability to establish personal jurisdiction in federal court. See id. at 904 n.12. 32 See Mariash v. Morrill, 496 F.2d 1138, 1143 (2d Cir. 1974) (“It is not the State of New York but the United States which would exercise its jurisdiction.”) (citation omitted); 4 Charles Alan Wright et al., Federal Practice and Procedure §1068.1 (4th ed. 2013) (“When a federal court adjudicates a federal question claim, it exercises the sovereign power of the United States.”). Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 58 of 98 46 E. This Court is a Proper Venue Under the Clayton Act A subset of the Foreign Dealer Defendants posit that this case is improperly venued. Juris. Mem. at 35. But venue is proper under Section 12 of the Clayton Act in any district where a corporation “transacts business.” 15 U.S.C. § 22. The term “transacts business . . . was designed to broaden the jurisdiction of federal district courts in adjudicating antitrust cases” and “is therefore not intended to have a technical or legalistic meaning.” Daniel v. American Board of Emergency Medicine, 988 F.Supp. 127, 256-57 (W.D.N.Y. 1997). Rather, “the court must look to . . . the whole course of” a corporation’s conduct, to determine whether “in the ordinary and usual sense” it does business “of any substantial character” in the district. Id. at 275.33 This flexible standard does not require a corporation to be physically present, formally registered to do business, or to even consummate a specific transaction in a district to “transact business” there. Venue may be established by a corporation doing business in a district indirectly, through an agent or affiliate.34 Venue may also be established by a corporation soliciting business with customers, attending seminars and meetings, and even by making regular telephone calls in the district.35 33 See, e.g., U.S. v. Burlington Indus., Inc., 247 F. Supp. 185, 187 (S.D.N.Y. 1965) (holding that the assessment is made “from the average businessman’s point of view, and not what percentage of defendant’s total sales they comprise”); MM Global Servs. Inc. v. Dow Chemical Co., 404 F. Supp. 2d 425, 433 (D. Conn. 2005) (holding that less than $1 million in transactions spread out over three years were sufficient for a Singapore company to be transacting business in the district); In re Blue Cross Blue Shield Antitrust Litig., 225 F. Supp. 3d 1269, 1294 (N.D. Ala. 2016) (citing examples where $25,000 and $375,000 of transactions sufficed). 34 See, e.g., Al Rushaid v. Pictet & Cie, 68 N.E.3d 1, 7-9 (2016) (foreign bank’s financial activities through independent New York bank constituted transacting business in New York); In re Vitamin C Antitrust Litig., 2012 WL 2930109, at *5 (E.D.N.Y. July 18, 2012) (imputing transactions of local subsidiary to foreign defendant for purposes of venue analysis); Daicel, 2004 WL 5487822 at *1 (same). 35 See, e.g., Eastman Kodak Co. v. S. Photo Materials Co., 273 U.S. 359, 373 (1927) (foreign corporation transacted business by receiving and approving order slips from distributors in the district); Indian Head Inc. v. Allied Tube & Conduit Corp., 560 F. Supp. 730, 730-32 (S.D.N.Y. 1983) (foreign corporation transacted business by distributing promotional materials in the district); Deutsche Bank Sec., Inc. v. Mont. Bd. of Invs., 850 N.E.2d 1140, 1140 (2006) (finding repeated trading calls by institution into New York sufficient); C. Mahendra (N.Y.), LLC v. Nat’l Gold & Diamond Ctr., Inc., 3 N.Y.S.3d 27, 30-31 (N.Y. App. Div. 2015) (years of conducting business with in-forum entities by phone sufficient to show foreign defendant “transacted business” in the district). Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 59 of 98 47 The “transacts business” test is readily met here as to all Defendants, including the five corporate defendants that challenge venue. The same types of acts that establish minimum contacts with Defendants also clearly establish that Defendants “transact business” in this District. Every Venue Defendant (each of which is also a Foreign Dealer Defendant) “directed its collusive USD SSA bond trading activities to the United States, including to New York in particular, and engaged in these activities in the United States, including in New York.” SAC ¶¶ 55 (Barclays Services Limited), 56 (Barclays Capital Securities Limited), 78 (Credit Suisse Securities (Europe) Ltd.), 79 (Credit Suisse International), 94 (Nomura International plc). Those business activities included setting the artificial prices at which affiliates executed USD SSA bond transactions with members of the class in New York, and for all Venue Defendants except Barclays Services Limited, also directly executing USD SSA bond transactions at artificial prices with members of the class in New York. Id. The Venue Defendants supported their conspiracy with additional business activities in New York. Against this clear-cut case for venue, the Venue Defendants muster only the conclusory assertion that “Plaintiffs fail to allege that Venue Defendants are found or transact business in this District.” Juris. Mem. at 35-36. The venue allegations in Dennis v. JPMorgan Chase & Co. (“BBSW”), 343 F. Supp. 3d 122 (S.D.N.Y. 2018), cited by the Venue Defendants, are nothing Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 60 of 98 48 like those in the Complaint. In BBSW, for most of the venue defendants, there were “no allegations” that they “transacted any business in New York.” Id. at 190. Here, every Venue Defendant is alleged to have priced, approved, and/or executed manipulated USD SSA bond transactions in New York. And for the other venue defendants in BBSW, the complaint generally alleged that offices existed, but did not identify any “specific activities conducted” in the district. Id. at 200. Here, the Complaint not only identifies many specific activities that Venue Defendants conducted in New York-those are the very acts that give rise to Plaintiffs’ claims. These suit-related activities by themselves constitute business “of substantial character.” But there are additional facts regarding several of the Venue Defendants’ general business activities in New York that make the Court’s job even easier. Barclays Capital Securities Limited’s credit risk from the Americas for the category inclusive of USD SSA bonds stood at more than £18 million in 2016, and the nominal value of all trading portfolio liabilities stood at more than £5.9 billion.36 Credit Suisse Securities (Europe) Ltd. has significant operations in New York through its U.S. subsidiaries, and in 2016, approximately 31% of its credit risk exposures were from its operations in the United States, with a significant portion from its operations in New York. SAC ¶ 81. Credit Suisse International has significant operations in New York through its U.S. subsidiaries and affiliates, and in 2016, approximately 32% of its credit risk exposures were attributable to the United States, with a significant portion from its operations in New York. Id. Nomura International plc has many employees based in New York and doing business on its behalf. Id. ¶ 96. 36 See Barclays Capital Securities Limited, Directors’ Report and Financial Statements 2016 (2017), available at https://beta.companieshouse.gov.uk/company/01929333/filing-history, at 49 (trading portfolio assets (debt), 52, 60 (nominal value). Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 61 of 98 49 That the Venue Defendants have no actual response to any of the many specific and substantial business activities-both suit-related and otherwise-that are alleged to have occurred in this District only further confirms that it is a proper venue. II. PERSONAL JURISDICTION OVER THE FOREIGN DEALER DEFENDANTS IS ALSO PROPER UNDER NEW YORK’S LONG-ARM STATUTE, AND VENUE IS PROPER UNDER 28 U.S.C. § 1391 A. Personal Jurisdiction Exists Under the New York Long-Arm Statute New York law provides an independent basis upon which this Court may rely to maintain specific personal jurisdiction over the Foreign Dealer Defendants. In New York, specific personal jurisdiction may be maintained over a foreign defendant who either “in person or through an agent” does one of three things: “transacts any business within the state,” N.Y. C.P.L.R. 302(a)(1); “commits a tortious act within the state,” id. 302(a)(2); or “commits a tortious act without the state causing injury to person or property within the state,” id. 302(a)(3). The Foreign Dealer Defendants’ conduct satisfies all three bases for this Court maintaining personal jurisdiction over them. First, each of the Foreign Dealer Defendants transacts business in New York. New York’s long-arm is a “single-act statute requiring but one transaction.” Grand River Enters. Six Nations, Ltd. v. Pryor, 425 F.3d 158, 166 (2d Cir. 2005); see also Eades v. Kennedy, PC Law Offices, 799 F.3d 161, 168 (2d Cir. 2015) (“[P]roof of one transaction in New York is sufficient to invoke jurisdiction, even though the defendant never enters New York”). And as for the purported need to tie the business to the case, the test used by New York is “relatively permissive.” Al Rushaid, 26 N.E.3d 1, at 9. As the “transact business” requirement of the Clayton Act’s venue clause requires as much as, if not more than, the “transact business” requirement under N.Y. C.P.L.R. 302(a)(1), Grosser v. Commodity Exch., Inc., 639 F. Supp. 1293, 1313 (S.D.N.Y. 1986), the same facts Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 62 of 98 50 discussed above with respect to the Venue Defendants also confirm they transacted business in New York for purposes of the New York long-arm statute. As all of the banks structured their USD SSA bond operations similarly-with the London desks providing the marketing, pricing, and approval directions for their New York counterparts-the same conclusion applies to all of the Foreign Dealer Defendants. Indeed, the very fact the non-Venue Defendants did not object to venue under the Clayton Act is effectively a concession of having transacted business in New York. Additional facts showing the non-Venue Defendants transacted business in New York include: Barclays Bank PLC has an entire branch in New York, which accounts for revenues of $1.5 billion, or approximately 5.7% of worldwide revenue. Wright BBPLC Decl. ¶¶ 15, 19, 20. BNP Paribas has a New York office, which employs 680 employees, and operates a “Corporate Coverage team” offering all of BNP Paribus’ products. It has U.S. revenues of $4.689 billion. Gyetvan Decl. ¶ 5; SAC ¶ 63. Crédit Agricole Corporate & Investment Bank has a New York branch consisting of 569 employees, its Chief Financial Officer is based in New York, and derived $988 million in revenue from the United States. Chazareix Decl. ¶¶ 1, 5-6; SAC ¶ 74. Credit Suisse AG has a New York office consisting of 105 employees. SAC ¶ 75; Kläy CSAG Decl. ¶¶ 4, 7. Royal Bank of Canada has New York offices, is listed on the New York Stock Exchange, employs 8,000 people in the United States, and generates 22% of its worldwide revenue here. SAC ¶ 97; Serritella Decl. ¶¶ 4-5. The Toronto-Dominion Bank has a New York office and derived $10 billion in revenues from the United States. SAC ¶ 103; Jungreis Decl. ¶ 7. Second, the Foreign Dealer Defendants engaged in a continuous course of tortious conduct-sometimes within New York, and sometimes without New York-thereby satisfying both N.Y. C.P.L.R. 302(a)(2) and (a)(3). Again, this is because the Foreign Dealer Defendants were in charge of marketing, pricing, and approving all USD SSA bond transactions, even those Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 63 of 98 51 that were ultimately booked by affiliates. The Foreign Dealer Defendants also provided a constant flow of information both to and from New York-based salespeople and traders. All of these contacts relate to this case because Plaintiffs plausibly allege that each Foreign Dealer Defendant was continuously engaged in a conspiracy not to compete for USD SSA bond business. Courts have had little trouble finding the long-arm statute met in such cases.37 B. This Court is a Proper Venue Under 28 U.S.C. § 1391 Notably, Venue Defendants challenge venue under only Section 12 of the Clayton Act. They therefore necessarily concede that if this Court can maintain personal jurisdiction over Venue Defendants under New York’s long-arm statute, then this Court is a proper venue pursuant to 28 U.S.C. § 1391. This concession is unsurprising-under recent amendments to section 1391, in effect non-U.S. residents “may be sued in any judicial district.” 28 U.S.C. § 1391(c)(3). Thus, “non-residents of the United States simply may not object to venue” when section 1391 applies. 14D Charles Alan Wright et al., Federal Practice and Procedure § 3810 (4th ed. 2013).38 37 See, e.g., In re Vitamin C Antitrust Litig., 2012 WL 12355046, at *8 (holding that the occurrence of “the conspiracy to inflate the price of vitamin C . . . in China is of no consequence under Section 302(a)(3), since the plaintiffs felt no effects of this conspiracy until they purchased vitamin C at a supracompetitive price in New York”); Daicel, 2004 WL 5487822 (“New York . . . purchasers and consumers clearly suffered these injuries [of a foreign price-fixing conspiracy] ‘directly,’ within the meaning of [N.Y. C.P.L.R. 302(a)(3)]”); see also 777388 Ont. Ltd., 142 F. Supp. 2d at 323 (finding the “requirements of § 302(a)(3) are met” because “defendants knew that their conduct would harm [plaintiff] and its business relationships in New York and derived substantial revenues from their prior business dealings with [plaintiffs]”); cf. Chloé, 616 F.3d at 167 (concluding sales to both plaintiff and third parties were relevant to Section 302 inquiry); Segal, 2012 WL 273609, at *5 (finding relevant to Section 302 analysis injuries to named plaintiff “and those of the other New York residents”). Section 302(a)(3)(i) additionally requires the defendant to regularly conduct or solicit business in New York, which Plaintiffs allege. SAC ¶¶ 51-81, 92-114. Section 302(a)(3)(ii) instead requires defendants to have expected their conduct to have consequences in New York and that defendants derived substantial revenue from interstate or international commerce as a result of the acts. LaMarca v. Pak-Mor Mfg. Co., 95 N.Y.2d 210, 214 (2000). For the reasons set forth above in, e.g., Section I.C, the Foreign Dealer Defendants knew their conduct would have consequences here, and indeed causing harm here was the entire point of the conspiracy. 38 See also, e.g., Island Stone Int’l Ltd. v. Island Stone India Private Ltd., 2017 WL 1437464, at *10 (M.D. Fla. Apr. 4, 2017) (interpreting section 1391(b) and (c) and concluding that a lawsuit against a resident of India “may be brought in any judicial district”); iFLY Holdings LLC v. Indoor Skydiving Ger. GMBH, 2015 WL Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 64 of 98 52 III. IN THE ALTERNATIVE, PERSONAL JURISDICTION OVER THE FOREIGN DEALER DEFENDANTS IS PROPER PURSUANT TO RULE 4(K)(2), AND VENUE WOULD AGAIN BE PROPER UNDER 28 U.S.C. § 1391 As discussed above, this Court has personal jurisdiction over all the Foreign Dealer Defendants under both the Clayton Act and the New York long-arm statute. But should the Court disagree, then it would be proper to asses personal jurisdiction under Federal Rule 4(k)(2). In determining whether the exercise of jurisdiction under Rule 4(k)(2) is proper, courts apply a nationwide contacts approach. See BMW of N. Am. LLC v. M/V Courage, 254 F. Supp. 3d 591, 598-99 (S.D.N.Y. 2017). Thus, Rule 4(k)(2) enables the Court to take the nationwide contacts analysis for purposes of personal jurisdiction discussed above in connection with the Clayton Act, but then turn to apply the far-more-lenient venue provisions of 28 U.S.C. § 1391. The moving Defendants argue that Rule 4(k)(2) is unavailable because Plaintiffs did not provide a “certification” that they are not subject to jurisdiction in any one state.39 See, e.g., Juris. Mem. at 34 n.32; Manku Mem. at 6; Pau Mem. at 15. But there is no “certification” requirement in the text of Rule 4(k)(2).40 To the contrary, the Fifth, Seventh, Ninth, Eleventh, and D.C. Circuit Courts of Appeal have placed the burden on the defendant, concluding that a defendant wishing to preclude the use of Rule 4(k)(2) need “name some other state in which the 5909729, at *2 (E.D. Tx. Oct. 6, 2015) (quoting Wright et al. § 3810); Silva v. Gonzales, 2014 WL 12663140, *11 (S.D. Cal. May 23, 2014) (noting that “[d]efendants who are not resident [sic] in the United States are to be ‘disregarded’”). 39 That Plaintiffs did not explicitly refer to Rule 4(k)(2) in their complaint is irrelevant; parties are permitted to argue its applicability in the alternative. See, e.g., ISI Int’l, Inc. v. Borden Ladner Gervais LLP, 256 F.3d 548, 551 (7th Cir. 2001) (“Federal courts are entitled to apply the right body of law, whether the parties name it or not.”); Sunrise Techs., Inc. v. SELC Ir., Ltd., 2016 WL 3360418, at *8 (D. Mass. June 14, 2016) (“Rule 4(k)(2) can be considered even when the plaintiff has affirmatively pled a different basis for personal jurisdiction.”); Peterson v. Islamic Republic of Iran, 2013 WL 2246790, at *8 (S.D.N.Y. May 20, 2013) (considering Rule 4(k)(2) as a basis for jurisdiction when parties did not even brief it). 40 The Rule provides jurisdiction over a defendant whenever (1) the claim “arises under federal law,” (2) “the defendant is not subject to jurisdiction in any state’s courts of general jurisdiction,” and (3) “exercising jurisdiction is consistent with the United States Constitution and laws.” Fed. R. Civ. P. 4(k)(2). It is undisputable that Plaintiffs’ antitrust claims arise under federal law. And as discussed in Section IV below, exercising jurisdiction over all the Defendants comports with due process, particularly under a nationwide contacts viewpoint. Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 65 of 98 53 suit could proceed.” ISI Int’l, Inc. v. Borden Ladner Gervais LLP, 256 F.3d 548, 552 (7th Cir. 2001).41 This is the better reasoned view. It is more efficient than requiring the court to consider a fifty-state analysis. And it accords with the fact that litigants are allowed to both plead and make legal arguments in the alternative,42 and recognizes that the defendants likely possesses the information necessary to establish a lack of personal jurisdiction. Accordingly, numerous district courts within this Circuit have declined to require a “certification” by plaintiffs, particularly when, as here, defendants’ own arguments would themselves “establish[] the necessary predicate for personal jurisdiction pursuant to” Rule 4(k)(2). Peterson v. Islamic Rep. of Iran, 2013 WL 1155576, at *17 (S.D.N.Y. Mar. 13, 2013).43 Even the cases cited by the moving Defendants that have required a plaintiff’s certification have only done so after the court determined that jurisdiction does not exist in any state. For instance, in 7 W. 57th St. Realty, the court held that the second element of Rule 4(k)(2) was not met because the plaintiffs failed to certify even after the court “already found that 41 See Oldfield v. Pueblo De Bahia Lora, S.A., 558 F.3d 1210, 1218 n.22 (11th Cir. 2009) (“If . . . the defendant contends that he cannot be sued in the forum state and refuses to identify any other where suit is possible, then the federal court is entitled to use Rule 4(k)(2).”); Holland Am. Line Inc. v. Wartsila N. Am., Inc., 485 F.3d 450, 461 (9th Cir. 2007) (adopting Seventh Circuit approach); Mwani v. Bin Laden, 417 F.3d 1, 11 (D.C. Cir. 2005) (same); Adams v. Unione Mediterranea di Sicurta, 364 F.3d 646, 651 (5th Cir. 2004) (same), cert. denied sub nom. UMS Generali Marine S.p.A. v. Adams, 543 U.S. 979 (2004). 42 See Riverwoods Chappaqua Corp. v. Marine Midland Bank, N.A., 30 F.3d 339, 343 (2d Cir. 1994) (“[A] party may properly submit a case on alternative theories.”); Fed. R. Civ. P. 8(d)(2). Just because Plaintiffs’ primary argument is that there has always been jurisdiction in New York, and they can argue in the alternative, nothing in the Complaint indicates an “abandonment” of this argument, as Manku contends. 43 See also SIBOR II, 2018 WL 4830087, at *9 (allowing for use of Rule 4(k)(2) because, “by defendant’s own admission,” it was “not subject to any state’s courts of general jurisdiction”); BMW, 254 F. Supp. 3d at 599 (concluding that defendant’s claim that it has no presence in the United States and did not engage in transactions in New York itself established that defendant was not subject to jurisdiction in any state’s courts of general jurisdiction); Aluminum Warehousing II, 2015 WL 6472656, at *6 (finding prong two satisfied where “[t]here is nothing in the record to suggest that the [defendants] are subject to the general jurisdiction of any one State”); Daventree Ltd. v. Republic of Azerbaijan, 349 F. Supp. 2d 736, 760 (S.D.N.Y. 2004) (considering personal jurisdiction under Rule 4(k)(2) after determining plaintiffs failed to demonstrate personal jurisdiction under long- arm statute); Norvel Ltd. v. Ulstein Propeller AS, 161 F. Supp. 2d 190, 205 (S.D.N.Y. 2001) (same); Aerogroup Int’l, Inc. v. Marlboro Footworks, Ltd., 956 F. Supp. 427, 438 (S.D.N.Y. 1996) (same). Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 66 of 98 54 Defendants are not subject to personal jurisdiction in New York.” 2015 WL 1514539, at *13.44 Thus, should this Court conclude that neither the Clayton Act nor the New York long-arm statute can serve as a basis for this Court to maintain personal jurisdiction over the Foreign Dealer Defendants, and should this Court further conclude that certification is required, Plaintiffs respectfully request the opportunity at that time to certify that the Foreign Dealer Defendants are not subject to jurisdiction in any other state court of general jurisdiction. IV. THE COURT MAY ALSO CONSIDER THE ACTS OF THE FOREIGN DEALER DEFENDANTS’ DOMESTIC AFFILIATES AND CO-CONSPIRATORS The Foreign Dealer Defendants argue that Plaintiffs “conflate” the jurisdictional contacts of their various affiliates. Juris. Mem. at 27. But, as discussed above in Sections I, II, and III, the Foreign Dealer Defendants’ own acts establish the requisite minimum contacts to exercise personal jurisdiction. The Foreign Dealer Defendants purposely availed themselves of the forum by themselves approving, pricing, and executing USD SSA bond transactions with Plaintiffs and class members. And by purposely rigging a U.S.-centric market by way of such transactions, they expressly aimed their conduct at the forum. Those acts in, and deliberate targeting of, the United States by the Foreign Dealer Defendants themselves are ample grounds for the Court to exercise jurisdiction, even if some of the trades at issue were booked by their U.S. affiliates. Although it is therefore unnecessary to do so to resolve the jurisdictional question in Plaintiffs’ favor, the Court may also consider the acts by each Foreign Dealer Defendants’ affiliates and co-conspirators, for the reasons set forth below. 44 Similarly, in Precision Associates, Inc. v. Panalpina World Transport (Holding) Ltd., the court decided that the defendant was not subject to personal jurisdiction, and then allowed plaintiffs to amend their pleading to address the potential jurisdiction under Rule 4(k)(2). 2011 WL 7053807, at *44 (E.D.N.Y. Aug. 15, 2018). Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 67 of 98 55 A. The Domestic Defendants’ In-Forum Acts Were Carried Out at the Direction and Control of the Foreign Dealer Defendants The Foreign Dealer Defendants argue that the Court must ignore the acts of their respective affiliates in performing the jurisdictional analysis. Juris. Mem. at 27. To the contrary, domestic acts undertaken at the direction of a foreign entity may be considered in assessing jurisdiction over that foreign entity. See Daimler AG v. Bauman, 571 U.S. 117, 135 n.13 (2014) (holding that a corporation “can purposefully avail itself of a forum by directing its agents or distributors to take actions.”).45 For purposes of specific jurisdiction, the agent’s acts are imputed to the principal if there is “(1) the manifestation by the principal that the agent shall act for him; (2) the agent’s acceptance of the undertaking; and (3) the understanding of the parties that the principal is to be in control of the undertaking.” Cleveland v. Caplaw Enters., 448 F.3d 518, 522 (2d Cir. 2006). For purposes of a motion to dismiss, “[t]he existence of an agency relationship need only be pled in compliance with Fed. R. Civ. P. 8.” CompuDyne Corp. v. Shane, 453 F. Supp. 2d 807, 825 (S.D.N.Y. 2006). General allegations that subsidiaries and individuals acted as agents are sufficient.46 They simply must not be “sparse” or “conclusory.” Schwab, 883 F.3d at 86. The Complaint readily meets this standard. It explains, for each corporate Defendant, where and how it operated, and the specific role it played in the conspiracy. SAC ¶¶ 44-107. 45 See also Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 112 (1987) (noting that a defendant’s act of “marketing the product through a distributor” may amount to purposeful availment); Schwab, 883 F.3d at 84- 86 (“[i]t is well established that . . . an agency relationship between a parent corporation and a subsidiary that sells securities on the parent’s behalf could establish personal jurisdiction over the parent”); In re Chinese-Manufactured Drywall Prods. Liab. Litig., 753 F.3d 521, 531 (5th Cir. 2014) (noting that Daimler “embraces the significance of a principal-agent relationship to the specific-jurisdiction analysis”); In re Commodity Exch., Inc., 213 F. Supp. 3d 631, 680 n.42 (S.D.N.Y. 2016) (“[T]he Supreme Court made clear that an agency relationship remains relevant to assertions of specific jurisdiction.”). 46 See In re Parmalat Sec. Litig., 375 F. Supp. 2d 278, 294-95 (S.D.N.Y. 2005) (finding general allegations that company and other member firms conducted an audit as agents or otherwise under the control of other firms were sufficient to defeat a motion to dismiss). Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 68 of 98 56 That includes allegations of the direction and control that every Foreign Dealer Defendant exercised over its U.S. affiliates. The Complaint specifically alleges that every relevant domestic Defendant transacted in USD SSA bonds at artificial prices “at the direction of and with the knowledge and consent of” the affiliated Foreign Dealer Defendants, “who knew such transactions were with U.S. counterparties.” See, e.g., SAC ¶¶ 53 (Barclays Capital Inc. was directed by Barclays Bank PLC, Barclays Services Limited, and Barclays Capital Securities Limited).47 And it specifically alleges that every Foreign Dealer Defendant “purposefully directed and controlled the trading of . . . USD SSA bonds at artificial prices by” its domestic affiliates, “knowing and intending such transactions were with Class members in the United States, and booked the profit from such trades.” See, e.g., id. ¶ 51 (Barclays Bank PLC directed Barclays Capital Inc.).48 In other words, Plaintiffs do not rely on an “agency” theory in the abstract sense of trying to pierce the corporate veil. Rather, they rely on well-pled facts specific to this case: for the 47 See also SAC ¶¶ 60 (BNP Paribas Securities Corp. was directed by BNP Paribas S.A.), 64 (Citigroup Inc. was directed by Citigroup Global Markets Limited), 65 (Citibank N.A. was directed by Citigroup Global Markets Limited), 67 (Citigroup Global Markets Inc. was directed by Citigroup Global Markets Limited), 76 (Credit Suisse Securities (USA) LLC was directed by Credit Suisse AG, Credit Suisse Securities (Europe) Limited, and Credit Suisse International), 92 (Nomura Securities International, Inc. was directed by Nomura International plc), 98 (RBC Capital Markets, LLC was directed by Royal Bank of Canada and RBC Europe Limited), 104 (TD Securities (USA) LLC was directed by The Toronto-Dominion Bank). 48 See also SAC ¶¶ 55 (Barclays Services Limited directed Barclays Capital Inc.), 56 (Barclays Capital Services Limited directed Barclays Capital Inc.), 59 (BNP Paribas S.A. directed BNP Securities Corp.), 69 (Citigroup Global Markets Limited directed Citigroup Inc., Citibank N.A., and Citigroup Global Markets Inc.), 73 (Credit Agricole Corporate and Investment Bank directed its affiliates), 75 (Credit Suisse AG directed Credit Suisse Securities (USA) LLC), 78 (Credit Suisse Securities (Europe) Limited directed Credit Suisse Securities (USA) LLC), 79 (Credit Suisse International directed Credit Suisse Securities (USA) LLC), 94 (Nomura International plc directed Nomura Securities International, Inc.), 97 (Royal Bank of Canada directed RBC Capital Markets, LLC), 100 (RBC Europe Limited directed RBC Capital Markets, LLC), 103 (The Toronto-Dominion Bank directed TD Securities (USA) LLC). Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 69 of 98 57 transactions at issue, the domestic affiliates were literally taking daily direction from the Foreign Dealer Defendants. Plaintiffs thus allege that the domestic offices and employees were acting as agents for the London desks, because they took direction and control from the London desks. This includes, for all Foreign Dealer Defendants except Crédit Agricole, taking direction from the Foreign Dealer Defendants on transactions with the named Plaintiffs. Having no direct answer to these detailed allegations, the Foreign Dealer Defendants resort, again, to misdirection and obfuscation. For instance, they argue that Plaintiffs “conflate” the contacts of the Foreign Dealer Defendants and their U.S. affiliates by “grouping them under the same name.” Juris. Mem. at 27. But the paragraphs about which the Foreign Dealer Defendants complain merely provide a short-hand reference for each family of Defendants, for use where appropriate. The factual allegations that are actually pertinent to the agency analysis are specific and individualized as to each relevant Defendant.49 That the banks all happened to arrange their desks in similar fashion does not render the use of similar language across multiple defendants “boilerplate” or “conclusory.” Juris. Mem. at 28. There is no point to altering the language when each bank did the same thing-namely, give the power to price and approve USD SSA transactions to its London desk. The detailed factual allegations here about how that relationship worked in every family of Defendants are nothing like the truly “boilerplate” allegations at issue in Gerstle v. National Credit Adjusters, LLC, 76 F. Supp. 3d 503 (S.D.N.Y. 2015). In that case, the plaintiffs asserted that certain individual employees “oversaw . . . illegal policies” of a debt collection company. Id. at 510-11. Here, by contrast, the factual allegations are not of general oversight, but are details as to the daily 49 For that reason, Tera Group, Inc. v. Citigroup, Inc., 2018 WL 4732426, at *2 (S.D.N.Y. Sept. 28, 2018), cited by the Foreign Dealer Defendants, is inapposite. The complaint in that case did not contain any entity- specific allegations, and “ma[de] no effort to distinguish between” affiliates. Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 70 of 98 58 operation of the Defendants’ USD SSA business, For similar reasons, Schwab and similar cases involving the manipulation of global benchmark rates are also unavailing. As discussed above, those cases turned on the fact that there was a gap between the act of falsely responding to a benchmark “poll,” and the act of entering into any particular contract. The “sparse” allegations of an agency relationship between the banks and their affiliates were deemed insufficient to bridge that gap by showing that the bank entities that happened to sit on the LIBOR polling panel controlled the broker-dealer entities that carried out the particular transactions. See Schwab, 883 F.3d at 85-86 (general allegation that defendants “controlled” their broker-dealer affiliates insufficient); BBSW, 343 F. Supp. 3d, at 206 n.461 (citing Schwab and rejecting similar allegations as “insufficiently individualized”); In re LIBOR-Based Fin. Instruments Antitrust Litig. (LIBOR V), 2015 WL 6696407, at *21 (S.D.N.Y. Nov. 3, 2015) (general allegations of overlapping management did not establish that parent company “directed the specific activities that allegedly violated the law”). Here, there is no gap to bridge because the mispricing was carried out on each transaction specifically. And here, Plaintiffs’ allegations are not ones of general control but specifically explain how these trading desks operated on these particular transactions. The Foreign Dealer Defendants also cite to In re Aluminum Warehousing Antitrust Litigation, 90 F. Supp. 3d 219 (S.D.N.Y. 2015) (“Aluminum Warehousing I”). But, respectfully, that court conflated Daimler’s refusal to find general jurisdiction over a parent based on the conduct of its subsidiary, with the Court’s recognition that agency may nonetheless be a basis for specific jurisdiction. Id. at 227-28. As a result, the court in Aluminum Warehousing I applied a Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 71 of 98 59 test based on pre-Daimler, general jurisdiction principles that considers whether the subsidiary “does all the business” which the parent could do if it were present in the forum. Id. at 227. That standard is irrelevant here, where Plaintiffs are asserting that specific jurisdiction is what exists over the Foreign Dealer Defendants.50 But even if a “does all the business” test applied to specific jurisdiction claims-which the Foreign Dealer Defendants do not even claim to be the case-it would be met here given the domestic affiliates’ subservient role in carrying out the marketing and sales instructions in the United States. Finally, the Foreign Dealer Defendants argue that, even if acts by their U.S. affiliates can be considered, those contacts do not support jurisdiction. This is so, according to Defendants, because the affiliates’ activity is not “suit related.” Id. But if the domestic affiliates’ acts are imputed and then considered alongside the Foreign Dealer Defendants’ own acts, then literally each bank’s entire line of business is on the table for consideration. It is absurd to suggest that the Defendants’ entire USD SSA line of business is unrelated to a suit about a conspiracy to price-fix USD SSA transactions. To the extent the Foreign Dealer Defendants are merely arguing that the affiliates’ activities are not suit-related because there was no conspiracy at all, that argument fails for the reasons set forth in Plaintiffs’ merits memorandum. B. The In-Forum Acts of Co-Conspirators May Also Be Imputed to the Foreign Dealer Defendants As discussed in Section IV.A above, if the acts of the domestic affiliate of each Foreign Dealer Defendant are imputed, then literally each banks’ entire USD SSA line of business could be considered, plainly giving rise to specific jurisdiction for claims arising out of USD SSA transactions. In fact, the Court can consider all of the Defendants’ USD SSA operations, by way 50 For the same reason, the Foreign Dealer Defendants’ arguments that the acts by their U.S. affiliates do not establish general jurisdiction, Juris. Mem. at 29, miss the mark. Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 72 of 98 60 of the conspiracy jurisdiction theory. This would make it even more undeniable that each moving Defendant is chargeable with sufficient acts to give rise to specific jurisdiction. Again, the moving Defendants’ only answer is to posit summarily that there was “not a single act carried out within the forum in furtherance of the conspiracy.” Juris. Mem. at 29. This supposition turns entirely on the further assertion that the conspiracy is not well-pled. It is, for reasons set forth in Plaintiffs’ merits memorandum. To avoid the obvious conclusion that imputing the many domestic and other acts of all the co-conspirators (even if “only” those that occurred in New York) would yet again fully resolve the jurisdictional question in Plaintiffs’ favor, Defendants first argue that conspiracy jurisdiction is not a thing at all. They then try to impose requirements on it that go beyond what the law actually requires. Neither argument has merit. 1. The in-forum acts by each Defendant may be imputed to the Foreign Dealer Defendants under federal law In Schwab, the Second Circuit held that the in-forum acts taken by co-conspirators in furtherance of a conspiracy may properly be considered when assessing a foreign corporation’s minimum contacts. 883 F.3d at 86-87. In doing so, the Second Circuit resolved any previous disagreement between the existence and contours of this theory of jurisdiction by siding with the many courts that recognized its viability.51 As Judge Posner has explained, “[i]f through one of its members a conspiracy inflicts an actionable wrong in one jurisdiction, the other members 51 See Sonterra v. Credit Suisse, 277 F. Supp. 3d at 588-89 (personal jurisdiction could be maintained over foreign defendant bank where it conspired with a co-conspirator trader located in the forum); SIBOR I, 2017 WL 3600425, at *8 (“the contacts that one co-conspirator made with a forum while acting in furtherance of the conspiracy may be attributed for jurisdictional purposes to the other coconspirators.”); see also Tadayon v. DATTCO, Inc., 178 F. Supp. 3d 12, 21 (D. Conn. 2016); LaChapelle v. Torres, 1 F. Supp. 3d 163, 173 (S.D.N.Y. 2014); Sea Trade Maritime Corp. v. Coutsondontis, 2012 WL 3594288, at *9 (S.D.N.Y. Aug. 16, 2012); Emerald Asset Advisors, LLC v. Schaffer, 895 F. Supp. 2d 418, 430-35 (E.D.N.Y. 2012); Maersk, Inc. v. Neewra, Inc., 554 F. Supp. 2d 424, 448-49 (S.D.N.Y. 2008); Kentucky Speedway, LLC v. NASCAR, Inc., 410 F. Supp. 2d 592, 600 (E.D. Ky. 2006); Jung v. Ass’n of Am. Med. Colls., 300 F. Supp. 2d 119, 141 (D.D.C. 2004); In re Vitamins Antitrust Litig., 270 F. Supp. 2d at 28; Simon v. Philip Morris, Inc., 86 F. Supp. 2d 95, 123 (E.D.N.Y. 2000). Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 73 of 98 61 should not be allowed to escape being sued there by hiding in another jurisdiction.” Stauffacher v. Bennett, 969 F.2d 455, 459 (7th Cir. 1992) superseded on other grounds by repeal of rule, Fed. R. Civ. P. 4(f) (repealed 1993).52 The court in Schwab noted that “neither [the Second Circuit] nor the Supreme Court has delineated when one conspirator’s minimum contacts allow for personal jurisdiction over a co- conspirator.” 883 F.3d at 86. The court thus turned to decisions by the “courts of appeals that have examined the issue more thoroughly,” and held that “the appropriate test for alleging a conspiracy theory of jurisdiction” was set forth by the Fourth Circuit in Unspam Technologies, Inc. v. Chernuk, 716 F.3d 322 (4th Cir. 2013). Under that test, a plaintiff need only allege that “(1) a conspiracy existed; (2) the defendant participated in the conspiracy; and (3) a co- conspirator’s overt acts in furtherance of the conspiracy had sufficient contacts with a state to subject that co-conspirator to jurisdiction in that state.” Schwab, 883 F.3d at 86-87. Each requirement is met here. Plaintiffs more than make a prima facie showing of a conspiracy, and have placed all Defendants within that conspiracy. Plaintiffs plausibly allege that each co-conspirator committed overt acts in furtherance of the conspiracy in the United States and New York, including by playing specific roles in the marketing, pricing, and execution of USD SSA bond transactions at artificial prices with Plaintiffs and U.S. class members. See, e.g., SIBOR II, 2018 WL 4830087, at *7-8 (applying the test articulated in Schwab and holding that in-forum collusive trades with two defendants were “sufficient to 52 See also Simon v. Philip Morris, Inc., 86 F. Supp. 2d 95, 127 (E.D.N.Y. 2000) (“[I]t is not clear why personal jurisdiction should be an exception to the general rule of attributing the acts of one conspirator within the scope of the conspiracy to the other conspirators.”). Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 74 of 98 62 confer jurisdiction over all” of the co-conspirators, where the “conspiracy was collectively to profit from the manipulation”).53 To distract from the conclusion required by Schwab that conspiracy jurisdiction exists and is appropriate on the facts here, the Foreign Dealer Defendants attempt to re-muddy the waters that the Second Circuit clarified. They argue that courts “have rejected standalone conspiracy-based jurisdiction” after the Supreme Court’s decision in Walden. Juris. Mem. at 30- 31. But the cases relied upon have all been superseded by the holding in Schwab that conspiracy jurisdiction is alive and well. They were also on the wrong side of the split between district courts as to the existence of conspiracy jurisdiction. This is because Walden’s holding that the forum contacts must be those “that the defendant himself creates with the forum state” simply means that, as between the plaintiff and defendant-the only two parties in that case-the defendant could not be fairly hauled into court based on the fact a plaintiff moved to a new jurisdiction. See 571 U.S. at 284. That says nothing of a conspiracy case, such as this one, where it was not Plaintiffs’ unilateral decision that is at issue, but the moving Defendants’ conscious decision to join a conspiracy. The cases cited by the Foreign Dealer Defendants that questioned whether conspiracy jurisdiction survived Walden did not address this distinction.54 The Foreign Dealer Defendants also argue that conspiracy jurisdiction requires that the Foreign Dealer Defendants exercised “direction and control inherent in a traditional agency 53 This distinguishes this case from Schwab, where conspiracy jurisdiction was recognized but not applied. Again, in Schwab and the other benchmarking cases cited by Defendants, the artificiality came about entirely by way of responding to a “poll” falsely, outside the United States. That poll response was carried out separately, the defendants argued, from the regular business of buying and selling LIBOR-linked instruments. The false poll responses were also supposedly irrelevant because the goal of the conspiracy was reputation, not profit. In this case there is no gap between the act of mispricing and the act of undertaking the relevant transactions, and the point of the conspiracy was to profit, and thus all of the carrying out of Defendants’ USD SSA operations were steps in furtherance of the conspiracy. 54 See Dental Supplies, 2017 WL 4217115, at *7; In re N. Sea Brent Crude Oil Futures Litig., 2017 WL 2535731, at *9 (S.D.N.Y. June 8, 2017). Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 75 of 98 63 relationship” over their co-conspirators. Juris. Mem. at 31-33.55 This, they say, is because Schwab did not “reach the due process question” and thus did not really flesh out all the requirements for this theory of jurisdiction. But the Second Circuit expressly considered the issue of minimum contacts, and deferred to the courts of appeal that articulated the three-element test above, which does not require an agency relationship. See also Unspam, 716 F.3d at 329; Melea, Ltd. v. Jawer SA, 511 F.3d 1060, 1070 (10th Cir. 2007); Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan, 115 F.3d 1020, 1031 (D.C. Cir. 1997); Textor v. Bd. of Regents of N. Illinois Univ., 711 F.2d 1387, 1392-93 (7th Cir. 1983). Recognizing Schwab meant what is said would not overrule “decades of Second Circuit precedent,” as the Foreign Dealer Defendants posit.56 Juris. Mem. at 31 n.30. While some courts have analogized to agency principles in explaining the underpinnings of conspiracy jurisdiction, “[t]he Second Circuit has repudiated the requirement of a formal agency relationship as a basis for imputing acts to a co-conspirator for jurisdictional purposes.” Dixon v. Mack, 507 F. Supp. 345, 349 (S.D.N.Y. 1980) (citing Lehigh Valley Indus., Inc. v. Birenbaum, 527 F.2d 87, 90 n.3 (2d Cir. 1975)). The case that Defendants claim the Second Circuit should have addressed more expressly, Leasco Data Processing Equipment Corp. v. Maxwell, 468 F.2d 1326, 1343 (2d. Cir. 1972), is not to the contrary. In that case, the court simply confirmed that “the mere presence of one conspirator . . . does not confer personal jurisdiction over another alleged conspirator.” Id. at 1343. That the mere existence of a conspiracy does not suffice does not 55 A literal “control” requirement would effectively nullify the entire doctrine of conspiracy-based jurisdiction approved by Schwab and lead to the illogical result that two conspirators who jointly agreed not to compete would be subject to inconsistent treatment under the antitrust laws simply because one enters the United States to execute the scheme, while the other does not. Even if literal “control” was required, it would be present as between the Foreign Dealer Defendants and each of their respective domestic affiliates, for the same reasons discussed above in Section IV.A that give rise to the ability to impute such acts based on agency principles. 56 Thus, the general principle that one panel “cannot overrule a prior decision of another panel,” Union of Needletrades, Indus and Textile Emps., AFL-CIO, CLC v. U.S. I.N.S., 336 F.3d 200, 210 (2d Cir. 2003), is irrelevant. Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 76 of 98 64 mean that a formal agency relationship is required. In fact, the court in Schwab cited Leasco before turning to the courts of appeal that had “examined . . . more thoroughly” what other elements were required. Schwab, 883 F.3d at 86.57 Finally, Defendants argue that, according to Aluminum Warehousing I, conspiracy jurisdiction “only” exists under the New York long-arm statute. Juris. Mem. at 33-34. Plaintiffs respectfully submit the Aluminum Warehousing I decision erred in holding that the conspiracy theory should be limited to “general or long-arm jurisdiction,” rather than also being cognizable under federal law. 90 F. Supp. 3d at 227. Conspiracy jurisdiction is cognizable under the Clayton Act. As discussed at the outset of Section I above, personal jurisdiction under the Act extends to the full reach of minimum contacts. Because conspiracy jurisdiction meets the minimum contacts requirement for the reasons discussed above, it therefore fits under Section 12 as well. Conspiracy jurisdiction is also cognizable under Rule 4(k)(2), the federal long-arm statute. The case for such would be strengthened if the Court finds it to not fall under the auspices of the Clayton Act. This is because Rule 4(k)(2) “was specifically designed” by Congress “to ‘correct[] a gap’ in the enforcement of federal law in international cases.” Porina v. Marward Shipping Co., 521 F.3d 122, 126 (2d Cir. 2008) (quoting Fed. R. Civ. P. 4 advisory committee’s note, 1993 Amendments). It therefore necessarily provides for service of process and personal jurisdiction in instances not covered by any other rule or statute. The fact Rule 4(k)(2) exists to prevent defendants from falling through the cracks means it should be used 57 The other cases cited by the Foreign Dealer Defendants also have no relevance to the conspiracy theory, as they merely discussed agency principles in the context of agency-based claims. See In re Shulman Transp. Enterprises, Inc., 744 F.2d 293, 295 (2d Cir. 1984) (examining agency relationship between bankruptcy debtor and creditor); Grove Press, Inc. v. Angleton, 649 F.2d 121, 122 (2d Cir. 1981) (analyzing requirements for agency relationship where plaintiff attempted to establish personal jurisdiction based on the agency provision of the New York long-arm statute). Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 77 of 98 65 precisely where it would otherwise be fair to hail a defendant into court but where, as Defendants contend, no other statutory regime provides the means to do so because of various technicalities.58 2. The in-forum acts by each Defendant may be imputed to the Foreign Dealer Defendants under the New York long-arm statute The Foreign Dealer Defendants concede that the New York long-arm provides a statutory basis for the extension of conspiracy jurisdiction. Juris. Mem. at 32-33. In fact, they cite a case stating the elements for conspiracy jurisdiction in substantially the same way the Schwab Court did: “To establish personal jurisdiction on a conspiracy theory, Plaintiffs must make a prima facie showing of conspiracy, allege specific facts warranting the inference that the defendant was a member of the conspiracy, and show that the defendant’s co-conspirator committed a tort in New York.” In re Terrorist Attacks, 349 F. Supp. 2d at 804-05. As discussed above and in Plaintiffs’ merits memorandum, all of those elements are present here, including because Plaintiffs specifically allege that numerous overt acts occurred in New York. See, e.g., SAC ¶¶ 51, 53, 55, 56, 58-60, 63-65, 67, 69, 72-76, 78, 79, 92, 93, 96-98, 100, 102-04, 107. The Foreign Dealer Defendants again try to argue that more is required to trigger conspiracy jurisdiction. Juris. Mem. at 33. This is based primarily on the misguided notion that requiring more would run afoul of the due process clause-a conclusion that is incompatible with Schwab’s holding as to the contours of conspiracy jurisdiction for federal law. But their own authority makes clear that “Plaintiffs are not required to establish the existence of a ‘formal agency relationship’ between the Defendants and their putative co-conspirators.” In re Terrorist Attacks, 349 F. Supp. 2d at 805 (quoting Daventree Ltd. v. Republic of Azerbaijan, 349 F. Supp. 58 The Foreign Dealer Defendants repeat their argument that Plaintiffs cannot avail themselves of Rule 4(k)(2) because they have not certified that Defendants are not subject to jurisdiction in any state. Juris. Mem. at 34 n.32. That argument fails for the reasons discussed in Section III above. Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 78 of 98 66 2d 736, 759 (S.D.N.Y. 2004)). Rather, under New York law, plaintiffs are required to allege only that each co-conspirator “engaged in purposeful activities in New York in relation to his transaction for the benefit of and with the knowledge and consent of” the foreign defendant. Mario Valente Collezioni, Ltd. v. Confezioni Semeraro Paolo, S.R.L., 264 F.3d 32, 36 (2d Cir. 2001). The fact the conspiracy is well-pled confirms the Foreign Dealer Defendants would “had knowledge of” the domestic activities. And while the funds from one particular transaction would have gone to the counterparty bank, the ongoing refusal to compete was “for the benefit of” all conspiracy members. See Sea Trade Maritime Corp. v. Coutsodontis, 2012 WL 3594288, at *9 (S.D.N.Y. Aug. 16, 2012) (finding it was reasonable to infer that the N.Y.-based defendant acted on behalf of the foreign defendant where the foreign defendant “knowingly and actively participated” in the conspiracy and “stood to profit” from the conspiracy). V. PERSONAL JURISDICTION IS PROPER OVER THE INDIVIDUAL DEFENDANTS A. Personal Jurisdiction Exists Under the New York Long-Arm Statute Each of the Individual Defendants deliberately targeted the United States, and New York in particular, with his USD SSA bond trading activities. SAC ¶¶ 108 (Gudka), 110 (Heer), 111 (Manku), 112 (McDonald), 113 (Pau). Each is alleged to have promoted and priced USD SSA bonds to and for U.S.-based investors, and to have engaged in trades “with members of the Class in the United States and New York at artificial prices due to the conspiracy.” Id. The bad acts of the corporate Defendants are alleged to have taken place “through” the Individual Defendants. Id. ¶¶ 44 (BANA acted through McDonald, Manku, and Gudka), 45 (BAMLIL acted through McDonald, Manku, and Gudka), 46 (MLI acted through Manku and Gudka), 65 (Citibank acted through McDonald), 69 (CGML acted through McDonald), 75 (CSAG acted through Pau), 78 Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 79 of 98 67 (CSSEL acted through Pau), 79 (CSI acted through Pau), 82 (DBAG acted through Gudka), 89 (HSBCB acted through Manku), 94 (NIPLC acted through Heer), 97, 100 (RBC and RBCEL acted through Pau), 103 (TD Bank acted through McDonald). When the U.S.-based salespeople got a lead, they would then return to the London desk for information, approval, and pricing. Id. The Individual Defendants would take those calls and make those decisions. They are thus alleged to have been responsible for the marketing and pricing of USD SSA bonds in the United States, and New York in particular, even on USD SSA bond transactions where an affiliate of the Individual Defendant’s employer ended up booking the deal. Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 80 of 98 68 The Individual Defendants’ arguments as to why these well-pled facts do not constitute a prima facie case of personal jurisdiction fail for the same reasons they fail with respect to the Foreign Dealer Defendants. Some of the Individual Defendants argue that the statutory requirements of the New York long-arm statute are not met, others argue that there are no “minimum contacts” here, while others make the same arguments under both headings. Because the statutory and minimum-contacts requirements are met for the same reasons, below they are discussed together. First, Individual Defendants argue that “conclusory allegations” do not suffice. Dkt. Nos. 543 (“Heer Mem.”) at 13; 538 (“Manku Mem.”) at 12; 534 (“McDonald Mem.”) at 120; 541 (“Pau Mem.”) at 3, 4. Allegations describing the exact marketing and pricing structure used within the banks, which gives rise to the London desks’ ties to the United States even on deals where they were not in privity, are far from “conclusory” allegations. Plaintiffs’ allegations go far beyond allegations of shared board members like in Jazini v. Nissan Motor Co., Ltd., 148 F.3d 181, 185 (2d Cir. 1998), In re Braskem S.A. Sec. Litig., 246 F. Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 81 of 98 69 Supp. 3d 731, 769-70 (S.D.N.Y. 2017), or Pyramyd Stone International Corp. v. Crosman Corp., 1997 WL 66778, at *10 (S.D.N.Y. Feb. 18, 1997). Nor do Plaintiffs rely merely on prior relationships between co-conspirators, like in Gmurzynska v. Hutton, 257 F. Supp. 2d 621, 628, 630 (S.D.N.Y. 2003). And this case is nothing like Megna v. Biocomp Laboratories Inc., 166 F. Supp. 3d 493, 498 (S.D.N.Y. 2016), where the plaintiff’s assertion that the defendant directed substantial and continuous activities into New York was not supported because the website did not sell anything into New York but merely listed pricing information. Second, most all of the Individual Defendants’ arguments are repetitions on the theme that this case supposedly does not sufficiently relate to their New York-related activities. But as discussed in connection with the Foreign Dealer Defendants, this case arises directly out of those activities because Plaintiffs plausibly allege that all of the Defendants’ transactions have been impacted by the conspiracy. Third, the Individual Defendants argue that there is no personal jurisdiction because Plaintiffs cannot allege with specificity that the named Plaintiffs’ transactions were the result of the Individual Defendants’ actions. See Heer Mem. at 5-6; Manku Mem. at 9-10, 19; McDonald Mem. at 19-21; Pau Mem. at 11-12. As discussed above in Section I.B, the Court is entitled to consider the transactions of absent class members, including those here in New York.59 But even if the Court were constrained to consider only the transactions of named Plaintiffs, the Complaint plausibly alleges that the artificial prices on those transactions were the result of the Individual 59 In addition to the cases discussed in Section I.B above on the relevance of absent class members’ transactions, Manku also relies on Hau Yin To v. HSBC Holdings, PLC and Thackurdeen v. Duke University, neither of which support his argument. Manku Mem. at 8-9. Hau Yin stemmed from Bernie Madoff’s Ponzi scheme, and held that foreign banks were not subject to jurisdiction in New York based on communications to and from Madoff Securities in connection with fund administration and custodial duties. Hau Yin To v. HSBC Holdings, PLC, 700 F. App’x 66, 67 (2d Cir. 2017). The case had no discussion of named plaintiffs. In Thackurdeen, the sole plaintiff died in Costa Rica while on a trip sponsored by his university from North Carolina; there were no suit-related connections to New York for anybody, so there was no jurisdiction. Thackurdeen v. Duke Univ., 130 F. Supp. 3d 792, 795, 801-08 (S.D.N.Y. 2015). Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 82 of 98 70 Defendants’ actions. Again, as discussed above, it was the Foreign Dealer Defendants that set the prices for all USD SSA transactions, and it was “through” the Individual Defendants that that primarily occurred. This means it has been plausibly alleged that the Individual Defendants set approved and priced the named Plaintiffs’ own transactions, because: Gudka was at the desk of Bank of America at the time all three named Plaintiffs transacted with that bank, and was at the desk of Deutsche Bank at the time Alaska Permanent Fund Corporation and Alaska Department of Revenue transacted with that bank. 60 Pau was at Credit Suisse on each occasion Alaska Permanent Fund Corporation and Iron Workers transacted with that bank, while most of Alaska Department of Revenue’s transactions with Credit Suisse overlapped with periods when Pau was employed by there. Pau was also at RBC during some of Department of Revenue’s transactions with that bank. Heer was at the desk of Nomura at the time Iron Workers transacted with that bank. 60 Defendants’ various arguments as to why these specific chats are unavailing because they either aren’t specific enough or do not actually show wrongdoing, Juris. Mem. at 17-18, see also Credit Suisse Mem. at 3, Pau Mem. at 4, Manku Mem. at 8, are all addressed in Plaintiffs’ merits memorandum. Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 83 of 98 71 Manku was at the desk of Bank of America at the time all three named Plaintiffs transacted with that bank, and was with HSBC during some of Alaska Department of Revenue’s transactions with that bank. McDonald was at the desk of Citi at the time Alaska Permanent Fund Corporation transacted with that bank, while some of Alaska Department of Revenue’s transactions with Citi overlapped with periods when McDonald was there, and McDonald was at the desk of TD Bank at the time Alaska Department of Revenue transacted with that bank.61 Fourth, with respect to the alternative “effects” test, the Individual Defendants merely repeat the Foreign Dealer Defendants in arguing that “foreseeability” of harm in the United States is insufficient. See Manku Mem. at 18-20 & n.16; McDonald Mem. at 19 n.5; Pau Mem. at 16-18. As an initial matter, again, that the conspiracy was targeted at the United States is only one of many ways of showing personal jurisdiction-it is over and above the simpler showing that the Individual Defendants approved and priced the transactions at issue in this case. See Sections I.A and I.B above. But even as to the additional theory of targeting, contrary to the assertion that Plaintiffs only allege that there had been “some trading activity to New York,” as discussed in Section I.C above, Plaintiffs allege that the United States was the target for the conspiracy-and New York, as its financial capital, the bullseye of that target. See Section I.C above. Just as the mere fact that other countries also saw some USD SSA bond trading does not prevent a finding that this conspiracy was aimed at the United States, so too does the fact the United States is made up of fifty states not prevent a finding that it was sufficiently targeted at New York.62 61 Even though the named Plaintiffs are not located in New York, given that Defendants’ domestic desks are located in New York, it is plausible that when the Individual Defendants were directing their affiliates to act, those actions took place in New York. 62 Relatedly, Manku argues that the New York long-arm statute is not satisfied where “the financial consequences of the alleged manipulation” were felt in New York merely because of the “fortuitous location of plaintiffs in New York.” Manku Mem. at 14 n.11. But Plaintiffs do not rely on the “fortuitous” “consequences” of Defendants’ actions. Far from “fortuitous,” it is Defendants’ actions themselves-i.e., the marketing, pricing, Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 84 of 98 72 Fifth, the Individual Defendants try to disaggregate Plaintiffs’ allegations, then argue why each in isolation has not been shown to be related to Plaintiffs’ claims and/or has not shown they were aiming at the United States. For instance: Heer asserts that Plaintiffs do not “allege any bids, offers, or trades made between Mr. Heer and a . . . class member, or U.S.-based investor.” Heer Mem. at 3. Manku makes similar arguments, repeating them as a statutory objection by saying it proves he did not transact business in, commit a tort in, or cause tortious injury in New York. Manku Mem. at 7-13. In addition to the flaws in Manku’s argument discussed below, the cases he relies on are easily distinguishable, as they involve foreign defendants and foreign plaintiffs who were executing and performing contracts outside of the United States. See Hood v. Ascent Med. Corp., 691 F. App’x 8, 11 (2d Cir. 2017); DirecTV Latin Am., LLC v. Park, 610, LLC, 691 F. Supp. 2d 405, 420 (S.D.N.Y. 2010); Hill v. HSBC Bank plc, 207 F. Supp. 3d 333, 340 n.7 (S.D.N.Y. 2016). McDonald likewise argues that most of his business was with European and Asian clients, and that allegations that he “traded with counterparties located in some unspecified place in the United States does not establish the requisite connection to New York.” McDonald Mem. at 19. That a trader also had business not at issue in this case is irrelevant. The relevant point is that the Complaint alleges, as it does for each Individual Defendant, that each entity McDonald was affiliate with “acting through McDonald . . . directed its collusive USD SSA bond trading activities to the United States, including to New York in particular, and engaged in those activities in the United States, including in New York.” SAC ¶¶ 65, 69, 103. approval, and execution of specific price-fixed trades with investors in New York-that establish jurisdiction. By contrast, in the case cited by Manku, the plaintiffs failed to plead the existence of any wrongful acts or any injury in New York. Biz2Credit, Inc. v. Kular, 2015 WL 2445076, at *8-9 (S.D.N.Y. May 21, 2015). Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 85 of 98 73 Arguments that Plaintiffs have not sufficiently tied this case to the Individual Defendants’ activities are fundamentally flawed because they all rely on a mischaracterization of Plaintiffs’ basic theory of the case. Manku Mem. at 20 (“Such a sweeping and conclusory allegation is plainly insufficient to tie Manku to the forum.”) (citing In re Braskem S.A. Sec. Litig., 246 F. Supp. 3d 731, 770 (S.D.N.Y. 2017)). The jurisdictional corollary is that to show the Individual Defendants transacted that business and committed those torts. Heer Mem. at 8-11 ( do not establish that “the U.S. was a nucleus or focal point” of the conspiracy). Rather, those factual details are additional support for the well-pled allegation that the nature of the USD SSA bond market and Individual Defendants’ positions demanded routine attention to and business in New York. The argument that it has not been plausibly shown the Individual Defendants’ actions give rise to this action is also fundamentally flawed because it presumes that these co- conspirators engaged in some untainted USD SSA bond business, such that each trip, phone call, and transaction needs to be separately alleged to have been wrongful. To the contrary, as an alleged member of an ongoing agreement not to compete, there was no such thing as a USD SSA marketing push, pricing decision, or transaction that was not an act in furtherance of the conspiracy.63 Put another way, it is absurd to suggest that a trader engaged in an ongoing 63 this case is nothing like those cases cited by the Individual Defendants for the generic proposition that the forum contacts must be suit-related. See Laydon VI, 2017 WL 1113080, at *4 (finding insufficient allegations by plaintiffs, without more, that two of the alleged conspirators’ trips to Las Vegas were spent “planning their manipulation”); King Cnty., Wash v. IKB Deutsche Industriebank, AG, 769 Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 86 of 98 74 conspiracy not to compete would vigorously start competing merely because he found himself at JFK airport rather than Heathrow. In sum, Plaintiffs allege that the Individual Defendants marketed, priced, and executed transactions with U.S. class members, including in New York. These allegations are not “conclusory” but rather are the unavoidable conclusion given the nature of the dealers’ USD SSA desks, the Individual Defendants’ position on those desks, and the U.S.- (and thus New York) centric USD SSA bond market. Given this, each of the Individual Defendants individually and through their agents (i.e., the U.S. salespeople who carried out their marketing, pricing, and execution instructions) transacted business in New York, committed torts in New York, and committed torts in London that caused harm in New York, triggering the New York long-arm statute. For the same reasons, the Individual Defendants have the requisite minimum contacts with New York. B. The Court Can Also Consider the Acts of the Affiliates of the Individual Defendants’ Banks, as Well as Those of All Co-Conspirators As discussed in Section IV.A above, that the London desks (i.e., the Individual Defendants) were the ones pushing out the “axes,” responding to customer inquiries, and had pricing, execution, and cancellation authority, means that the Individual Defendants’ U.S. colleagues were acting as the Individual Defendants’ “agents.” This allows the Court to further F. Supp. 2d 309, 317 (S.D.N.Y. 2011) (finding insufficient plaintiffs’ argument-without supporting evidence, even after discovery-that two meetings defendants conducted related to the conspiracy, particularly as they fell outside the class period). Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 87 of 98 75 consider the additional U.S. contacts of those affiliated entities, such as the additional USD SSA transactions carried about by affiliates with class members, including the named Plaintiffs.64 As discussed Section IV.B above, the law also recognizes the ability to impute jurisdictional contacts across co-conspirators.65 This, again, brings into the picture even more jurisdictional facts, as it would for instance allow the imputation of the named Plaintiffs’ USD SSA transactions to all co-conspirators, including the Individual Defendants not tied to an affiliate of a direct named Plaintiff counterparty. As also discussed above, consideration of the additional contacts under either theory would be dispositive. The only argument to the contrary-that there were no suit-related acts that trigger jurisdiction-is based on the flawed presumption that the conspiracy is not well-pled. C. In the Alternative, Individual Defendants are Subject to Personal Jurisdiction Under the Nationwide Contacts Test of Rule 4(k)(2) If the Court finds that Plaintiffs’ allegations about the Individual Defendants are not sufficiently tied to New York to trigger the New York long-arm test, then it should continue to analyze jurisdiction over the Individual Defendants based on their contacts with the United States as a whole under Rule 4(k)(2). See Section III above. All of the same facts and arguments set forth above with respect to the Individual Defendants’ ties to New York apply 64 Thus, Manku’s argument that “the Complaint identifies no putative agent who acted in New York for [his] benefit,” Manku Mem. at 10, misses the mark. Again, it was the affiliates of the London desks that were working as agents of the Foreign Dealer Defendants and Individual Defendants. In Manku’s case, those affiliated entities were, at various times, Bank of America, N.A., Bank of America Merrill Lynch International Limited, Merrill Lynch International, Credit Agricole, HSBC Securities (USA) Inc., and HSBC Bank plc. See SAC ¶¶ 44-46, 73, 87, 89, 111. 65 Manku cites an additional case, not discussed above, in support of his argument that he cannot be imputed the jurisdictional contacts of his-co-conspirators. See Manku Mem. at 11 (citing E-Z Bowz, L.L.C. v. Prof’l Prod. Research Co., 2003 WL 22064259, *9 (S.D.N.Y. Sept. 5, 2003)). But that case failed because the court had already found on summary judgment that there was “insufficient evidence” of the third-party’s conspiracy in the first place. Id. And although the court further noted in dicta was that conspiracy jurisdiction did not arise under the “transacts business” prong of the New York long-arm statute-but the court did note it was recognized as an application of the tortious-acts prongs of the New York long-arm statute. Id. Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 88 of 98 76 with greater strength to the United States as a whole given the even greater number of, for example, USD SSA bond contracts that would have to be considered. Notably, this would moot any potential debate regarding the relevance of Plaintiffs’ own location. As discussed above, the Court may also consider the Individual Defendants’ contacts with other U.S. class members, many of whom are located in New York. It has been plausibly alleged that the Individual Defendants made the marketing, pricing, and execution decisions for trades with such class members in New York. As also discussed above, even if the Court were constrained to consider the named Plaintiffs’ transactions only, it has been plausibly alleged that the Individual Defendants were responsible for the artificial pricing of those transactions as well, by way of their New York-based salespeople. Even if the Court finds that any of these contacts are insufficient under the New York long-arm statute, they would clearly be sufficient under a nationwide contacts approach pursuant to Rule 4(k)(2). D. This Court is a Proper Venue for the Individual Defendants Some Individual Defendants join the challenge to venue. Heer Mem. at 1 n.1; Manku Mem. at 1 n.1; McDonald Mem. at 18 n.4; Pau Mem. at 1. But the only actual challenge to venue is made to the limited extent that personal jurisdiction is based exclusively on the Clayton Act. See Juris. Mem. at 34. For the Individual Defendants, Plaintiffs are only relying on the New York long-arm statute or, in the alternative, Rule 4(k)(2) as a basis for personal jurisdiction. As discussed above in Section II.B, the Individual Defendants cannot object to venue when personal jurisdiction is based on such statutory predicates. VI. EXERCISING PERSONAL JURISDICTION OVER THE DEFENDANTS WOULD NOT OFFEND TRADITIONAL NOTIONS OF FAIR PLAY AND SUBSTANTIAL JUSTICE All moving Defendants make summary assertions how it would be unfair for them to be subject to this Court’s jurisdiction, even if the requisite minimum contacts existed. It is true that, Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 89 of 98 77 even after establishing the existence of minimum contacts with the relevant forum, those contacts “may be considered in light of other factors to determine whether the assertion of personal jurisdiction would comport with ‘fair play and substantial justice.’” Burger King, 471 U.S. at 476. But “dismissals resulting from the application of the reasonableness test should be few and far between.” Metropolitan Life Ins. v. Robertson-Ceco Corp., 84 F.3d 560, 575 (2d Cir. 1996). Accordingly, having demonstrated that sufficient minimum contacts exist in the United States and New York, the burden is on the moving Defendants to “present a compelling case that the presence of some other considerations would render jurisdiction unreasonable.” Eades v. Kennedy, PC Law Offices, 799 F.3d 161, 169 (2d. Cir. 2015). “[T]he burden is on the defendant to show that jurisdiction in this forum will ‘make litigation so gravely difficult and inconvenient that [it] unfairly is at a severe disadvantage in comparison to [its] opponent.” In re Propranolol Antitrust Litig., 249 F. Supp. 3d 712, 731 (S.D.N.Y. Apr. 6, 2017) (quoting Burger King, 471 U.S. at 478). “When minimum contacts have been established, often the interests of the plaintiff and the forum in the exercise of jurisdiction will justify even the serious burdens placed on the alien defendant.” Asahi Metal Indus. Co. v. Sup. Ct. of Cal., 480 U.S. 102, 114 (1987). Courts consider a number of factors to determine whether a defendant has made such a “compelling showing,” including: “(1) the burden that the exercise of jurisdiction will impose on the defendant; (2) the interests of the forum state in adjudicating the case; (3) the plaintiff’s interest in obtaining convenient and effective relief,” Chloé, 616 F.3d at 164; and (4) whether the exercise of jurisdiction over the defendant would threaten “international rapport,” Daimler, 571 U.S. at 141. The moving Defendants come nowhere close to making a “compelling showing” under any of these factors. Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 90 of 98 78 First, exercising jurisdiction over the Foreign Dealer Defendants will impose only a minimal burden. These multinational entities, all of which have domestic affiliates, are well familiar with traveling to and litigating in the United States. As summarized above in the Statement of Relevant Jurisdictional Facts Section G, several of the Foreign Dealer Defendants themselves have offices or employees in the United States. With respect to those who may not already have a presence here, as the Second Circuit has repeatedly recognized, “‘the conveniences of modern communication and transportation ease’ any burden the defense of this case in New York might impose.” See Licci, 732 F.3d at 174; In re Propranolol, 249 F. Supp. 3d at 731 (finding the exercise of jurisdiction reasonable where “defendants have global bases of operations, maintain distribution networks throughout the United States, and have retained New York counsel”). The Individual Defendants are comfortable traveling to New York, having done so repeatedly to further their anticompetitive conspiracy. London and New York are both financial and travel hubs. In addition, many traders are already targets of the DOJ’s ongoing investigation, SAC ¶¶ 375, 382-83, while others may eventually be included, id. ¶ 386-likely requiring them to travel to the United States anyway to defend themselves against the governmental inquiries. The Individual Defendants cannot find solace in the mere fact they are individuals. This argument has been repeatedly found only to provide defendants with “weak support, if any, because the conveniences of modern communication and transportation ease what would have been a serious burden only a few decades go.” See, e.g., Chloé, 616 F.3d at 173 (quoting Bank Brussels, 305 F.3d at 120). Second, a forum “generally has a ‘manifest interest’ in providing its residents with a convenient forum for redressing injuries inflicted by [foreign] actors.” Burger King, 471 U.S. at Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 91 of 98 79 473. Here, because the injuries to Plaintiffs and members of the class took place within the United States, the conspiracy involved U.S. co-conspirators, and the conspiracy was expressly aimed at the United States, the United States has a “manifest interest” in this case. Indeed, “governmental investigations into [Defendants’] misconduct . . . were spearheaded by the U.S. Department of Justice.” SAC ¶ 375.66 The moving Defendants’ arguments that the United States has less interest where there is a “weak showing” of minimum contacts, Juris. Mem. at 39, is merely a repetition of their unavailing arguments against personal jurisdiction generally and against the merits of the substantive case against them. Third, Plaintiffs’ interest in obtaining efficient and effective relief is best served by adjudicating this case in the United States. Plaintiffs are U.S.-based entities to which the Foreign Dealer Defendants and Individual Defendants marketed USD SSA bonds in the United States. SAC ¶¶ 32, 122. Plaintiffs purchased USD SSA bonds in the United States by placing orders with U.S.-based salespeople who worked with the Foreign Dealer Defendants to manipulate the U.S.-based market in which the USD SSA bonds were purchased. Id. ¶¶ 37, 39, 41, 396. Against this, the Defendants observe that some of the witnesses will be in the United Kingdom. See, e.g., Heer Mem. at 14; Pau Mem. at 21. But courts routinely find this to be unavailing. See Licci, 732 F.3d at 174 (even where defendant was based in Lebanon, all of the plaintiffs resided in Israel, and many of the documents and witnesses were located abroad, jurisdiction in New York was still reasonable); Chloé, 616 F.3d at 173 (exercising jurisdiction over a French defendant where only “some witnesses,” all from the plaintiff, would be in New 66 This case is thus nothing like Gmurzynska, 257 F. Supp. 2d at 621, cited by Defendants as an example of “weak” contacts. There, the defendant was an individual who was a German resident, Norwegian citizen, and had never been to or transacted business in New York. Id. at 627. The court thus found there were not sufficient minimum contacts to establish personal jurisdiction, and the court did not need to address the reasonableness prong. Similarly, this case is nothing like Metropolitan Life, 84 F.3d at 565, where it was “undisputed that none of the activities that served as the basis for Robertson’s complaint took place in Vermont,” and where the plaintiff only filed the action in Vermont to benefit from a plaintiff-friendly statute of limitations. Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 92 of 98 80 York, and where the court recognized the “burden on [the defendant] if he must travel to New York for trial”); Strauss v. Credit Lyonnais, S.A., 175 F. Supp. 3d 3, 31 (E.D.N.Y. 2016) (exercising jurisdiction in New York over a French defendant for injuries sustained in Israel and Palestine and noting that the parties could “capably surmount[] any obstacles presented by the fact that many of the pertinent witnesses and documents [were] located abroad” through the use of modern transportation and communication conveniences). Defendants’ preference for a forum more convenient for themselves is not a “‘compelling case’ that litigation . . . is unreasonably burdensome.” Verragio, Ltd. v. S K Diamons, 2017 WL 1750451, at *6 (S.D.N.Y. May 4, 2017). Fourth, exercising jurisdiction would pose no threat to “international rapport.” Plaintiffs have established that the Foreign Dealer Defendants have significant contacts with the United States and that both Plaintiffs and the United States have an interest in adjudicating Plaintiffs’ claims here. This alone justifies maintaining jurisdiction over the Foreign Dealer Defendants. See Asahi, 480 U.S. at 114 (“When minimum contacts have been established, often the interests of the plaintiff and the forum in the exercise of jurisdiction will justify even the serious burdens placed on the alien defendant.”). Defendants try here to re-argue the personal jurisdiction merits, asserting that there is a concern here because the conspiracy was not directed at the United States. Juris. Mem. at 38-39. But, as discussed above, the conspiracy was directed at the United States. And of course courts routinely exercise jurisdiction over cases even if the wrongdoing also happened to also impact foreign commerce. See Gucci Am., Inc. v. Weixing Li, 135 F. Supp. 3d 87, 99 (S.D.N.Y. 2015) (“[C]ourts do not ‘compare the interest of the sovereigns’ but rather ‘determine whether the forum state has an interest.”). Finally, it is worth noting that even the cursory objections that the moving Defendants bothered to make were made primarily by way of attacks at the concept “conspiracy Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 93 of 98 81 jurisdiction.” This demonstrates even more clearly that the moving Defendants’ “fairness” and “rapport” arguments add no distinct hurdle to the extension of personal jurisdiction under the many other legal theories discussed herein. As to the fairness of the additional and independent theory of jurisdiction that would consider the acts of unaffiliated co-conspirators, those courts discussed in Section IV.B above that have done just that have necessarily further found there was no separate due process hurdle to doing so. As also discussed above, none of that was changed by Walden, which was not a conspiracy case. There is nothing unfair about holding a co- conspirator-who is jointly and severally liable-accountable in the same court as his co- conspirators. Overall, the moving Defendants only make cursory “fair play and substantial justice” arguments, each of which is discussed above.67 They thus have utterly failed to show that “litigation in this forum will be so gravely difficult and inconvenient that they will be at a severed disadvantage in comparison to their opponents.” In re Propranolol Antitrust Litig., 249 F. Supp. 3d at 731. 67 Unsurprisingly, then, the three groups of cases the moving Defendants resort to fail to show why it would be unfair to hold them accountable here. First are those cases that find exercising jurisdiction would comport with fair play and substantial justice. See Licci, 732 F.3d at 173-74; Chloé, 616 F.3d at 173. Second are those cases that find defendants did not have minimum contacts with the forum in the first instance. See Gmurzynska, 257 F. Supp. 2d at 628; Madison Capital Mkts., LLC v. Starneth Eur. B.V., 2016 WL 4484251, at *11-12 (S.D.N.Y. Aug. 23, 2016); see also Laydon V, 2015 WL 1515358, at *6 (finding insufficient minimum contacts so explaining that the “Court therefore does not need to address the second part of the due process analysis”). Third are those cases that involve allegations of general jurisdiction. See Daimler, 571 U.S. at 139-42 (noting that the “risks to international comity” only arise under an “expansive view of general jurisdiction”); Gucci Am., 768 F.3d at 138 (rejecting general jurisdiction in light of Daimler, and remanding to the lower court because the parties had not briefed specific jurisdiction); see also Brown v. Lockheed Martin Corp., 814 F.3d 619, 625 (2d Cir. 2016) (rejecting general jurisdiction and not addressing specific jurisdiction because plaintiffs conceded that their injury was not the result of defendant’s contact with the forum). Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 94 of 98 82 VII. IN THE ALTERNATIVE, PLAINTIFFS MOVE FOR JURISDICTIONAL DISCOVERY For all the reasons set forth herein, Plaintiffs have made a prima facie showing for personal jurisdiction. However, should this Court conclude that Plaintiffs have not carried their burden, Plaintiffs would request the right to move in the alternative for jurisdictional discovery. “It is well settled under Second Circuit law that, even where plaintiff has not made a prima facie showing of personal jurisdiction, a court may still order discovery, in its discretion, when it concludes that the plaintiff may be able to establish jurisdiction if given the opportunity to develop a full factual record.” Leon v. Shmukler, 992 F. Supp. 2d 179, 194 (E.D.N.Y. 2014) (citing In re Magnetic Audiotape, 334 F.3d at 208 (“At the very least, then, plaintiffs are entitled to further development on this point prior to a conclusion that they have failed to make a prima facie showing that SKM participated directly in a conspiracy, the effects of which were purposefully directed at the United States.”)). This Court has already recognized this. See Ikeda v. J Sisters 57, Inc., 2015 WL 4096255, at *8-9 (S.D.N.Y. July 6, 2015). Plaintiffs are entitled to jurisdictional discovery “when the allegations are sufficient to articulate a colorable basis for personal jurisdiction, which could be established with further development of the factual record.” Leon, 992 F. Supp. 2d at 195; see also Ayyash v. Bank Al- Madina, 2006 WL 587342, at * 5 (S.D.N.Y. Mar. 9, 2006) (“Such discovery has typically been authorized where the plaintiff has made a threshold showing that there is some basis for the assertion of jurisdiction.”).68 68 See also, e.g., New York v. Mountain Tobacco Co., 55 F. Supp. 3d 301, 314 (E.D.N.Y. 2014) (granting jurisdictional discovery where plaintiffs had made a “sufficient start” of establishing personal jurisdiction); Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, 2006 WL 708470, at *6 (S.D.N.Y. Mar. 20, 2006) (permitting jurisdictional discovery where defendants’ declarations created factual dispute concerning the exercise of personal jurisdiction). Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 95 of 98 83 Previously, the moving Defendants conceded this point, but argued that this case is different because there was no “reasonable basis to believe” discovery would lead to a prima facie case for jurisdiction. See Dkt. No. 454 at 20. In support, they again pointed to the string of LIBOR cases. See id. at 20 n.25. For all the reasons set forth herein, Plaintiffs have made far more than a “colorable claim” as to each moving Defendant, and have shown that the moving Defendants’ repeated reliance on those benchmark-setting cases is misplaced. Among other things, the way the prices were set here for each transaction gives rise to a completely different set of issues than a case involving a one-for-all financial benchmark supposedly set by a distinct group of poll respondents. Thus, in the event this Court does not find it appropriate to reject the moving Defendants’ motions outright, Plaintiffs would respectfully request the right to limited discovery. CONCLUSION For all the reasons set forth herein, as well as in Plaintiffs’ merits memorandum, the Foreign Dealer Defendants’ and the Individual Defendants’ motions to dismiss for lack of personal jurisdiction, and the Venue Defendants’ motions to dismiss for improper venue, should all be denied in their entirety. In the alternative, Plaintiffs request the right to move for jurisdictional discovery. DATED: New York, New York February 11, 2019 ROBBINS GELLER RUDMAN & DOWD LLP QUINN EMANUEL URQUHART & SULLIVAN, LLP By: /s/ David W. Mitchell By: /s/ Daniel L. Brockett David W. Mitchell Brian O. O’Mara Carmen A. Medici 655 West Broadway, Suite 1900 San Diego, CA 92101 Telephone: (619) 231-1058 Daniel L. Brockett Sascha N. Rand Steig D. Olson Thomas J. Lepri Christopher M. Seck 51 Madison Avenue, 22nd Floor Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 96 of 98 84 Fax: (619) 231-7423 davidm@rgrdlaw.com bomara@rgrdlaw.com cmedici@rgrdlaw.com New York, New York 10010 Telephone: (212) 849-7000 Fax: (212) 849-7100 danbrockett@quinnemanuel.com sascharand@quinnemanuel.com steigolson@quinnemanuel.com thomaslepri@quinnemanuel.com christopherseck@quinnemanuel.com Jeremy D. Andersen Adam B. Wolfson 865 South Figueroa Street, 10th Floor Los Angeles, California 90017 Telephone: (213) 443-3000 Fax: (213) 443-3100 jeremyandersen@quinnemanuel.com adamwolfson@quinnemanuel.com Counsel for Plaintiffs and the Proposed Class Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 97 of 98 85 CERTIFICATE OF SERVICE I hereby certify that on February 11, 2019, I filed and therefore caused the foregoing document to be served in the United States District Court for the Southern District of New York. Copies were emailed on all Defendants in the above-captioned matter. /s/ Daniel L. Brockett Daniel L. Brockett Case 1:16-cv-03711-ER Document 579 Filed 02/19/19 Page 98 of 98
