McCarthy et al v. Intercontinental Exchange, Inc. et al

Filing 263

ORDER RE MOTION TO TRANSFER AND ADMINISTRATIVE MOTION RE INJUNCTION APPLICATION. Signed by Judge James Donato on 6/3/2021. (jdlc2S, COURT STAFF) (Filed on 6/3/2021)

Case 3:20-cv-05832-JD Document 263 Filed 06/03/21 Page 1 of 4

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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LISA MCCARTHY, et al.,

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Plaintiffs,

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v.

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INTERCONTINENTAL EXCHANGE,
INC., et al.,

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United States District Court
Northern District of California

Case No. 20-cv-05832-JD
ORDER RE MOTION TO TRANSFER
AND ADMINISTRATIVE MOTION RE
INJUNCTION APPLICATION
Re: Dkt. Nos. 34, 261

Defendants.

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In this consumer antitrust action, plaintiffs Lisa McCarthy and twenty-six others have sued

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dozens of banks and financial institutions, alleging that the defendants engaged in a price-fixing

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conspiracy to fix the intra-bank interest rate known as the USD ICE LIBOR rate. Dkt. No. 1.

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Plaintiffs, who are borrowers and consumers of loans and credit cards with variable interest rates,

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say that they paid the illegally-fixed price as the base of their loans, or were substantially

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threatened with harm from the continued use of the price-fixed rate. Id.
Defendants have moved to transfer this action to the Southern District of New York. Dkt.

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No. 34. The request is denied. Defendants’ request for administrative relief in connection with

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plaintiffs’ most recent injunction application is granted in part. Dkt. No. 261.

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I.

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MOTION TO TRANSFER
A subset of defendants, namely the U.S.-based entities that were served, seek to transfer

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the case under 28 U.S.C. § 1404 to the United States District Court for the Southern District of

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New York. Dkt. No. 34. Under Section 1404(a), “[f]or the convenience of parties and witnesses,

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in the interest of justice, a district court may transfer any civil action to any other district or

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division where it might have been brought or to any district or division to which all parties have

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consented.”

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Defendants’ main argument for a § 1404 transfer is that this case, “[l]ike dozens of other

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cases filed in or transferred to the S.D.N.Y. since 2011, . . . asserts antitrust claims arising from

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the U.S. Dollar London Interbank Offered Rate (‘USD LIBOR’), a widely used financial

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benchmark that is set in London and has been the subject of extensive litigation in the S.D.N.Y.

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for nearly a decade.” Dkt. No. 34 at 1; see also Dkt. No. 182 at 2 (“judicial efficiency favors

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transfer because of the ‘substantial overlap’ between this action and the USD LIBOR-related

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actions already filed in the S.D.N.Y.”). Defendants highlight two S.D.N.Y. cases in particular:

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(1) In re LIBOR-Based Financial Instruments Antitrust Litigation, No. 11-md-2262-NRB

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(S.D.N.Y.); and (2) In re: ICE LIBOR Antitrust Litigation, No. 19-cv-439-GBD (S.D.N.Y.).

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The point is not well taken. No district has a monopoly on LIBOR price-fixing litigation.

United States District Court
Northern District of California

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This case is not so closely related to the S.D.N.Y. cases that a good argument for judicial

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efficiency can be made. Defendants in effect acknowledged this conclusion by not asking the

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Judicial Panel on Multidistrict Litigation to formally have this case made a part of the In re

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LIBOR-Based Financial Instruments MDL pending in S.D.N.Y., or any other case in that district.

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This signals a recognition that this case is not sufficiently related to that MDL to warrant

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centralization. To put a finer point on this, defendants acknowledge that the constituent cases of

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the In re LIBOR MDL “relate generally to USD BBA LIBOR.” Dkt. No. 34 at 3. In contrast, the

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allegations here focus on the 2016 to 2020 time period, see Dkt. No. 1 ¶¶ 71, 79, which began a

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few years after the Intercontinental Exchange Benchmark Administration Limited (“IBA”) took

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over managing the LIBOR from the British Bankers’ Association, changing the “BBA LIBOR” to

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the “ICE LIBOR.” Id. ¶¶ 30-36.

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So too for the other case identified by defendants, In re: ICE LIBOR Antitrust Litigation.

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While that case is related to the ICE LIBOR, as is this one, it is “currently on appeal before the

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Second Circuit.” Dkt. No. 34 at 5. The S.D.N.Y. is consequently without jurisdiction over that

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closed case.

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Defendants’ showings for the core elements of a § 1404(a) transfer motion are equally

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tepid. Defendants bear the burden of establishing that the S.D.N.Y. is “the more appropriate

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forum for the action.” Jones v. GNC Franchising, Inc., 211 F.3d 495, 499 (9th Cir. 2000). The
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Court makes this determination “according to an individualized, case-by-case consideration of

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convenience and fairness,” considering such factors as “the plaintiff’s choice of forum, the

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respective parties’ contacts with the forum, the contacts relating to the plaintiff’s cause of action in

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the chosen forum, the differences in the costs of litigation in the two forums, the availability of

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compulsory process to compel attendance of unwilling non-party witnesses, and the ease of access

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to sources of proof.” Id. at 498-99 (quotations and numerals omitted).
Defendants have not established that any of these factors support a transfer. In our digital

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world, document collection, review, and production, and other discovery tasks, are readily

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accomplished without much regard for the geographic location of the records or the witnesses. To
the extent that party and non-party witnesses reside in New York or other places outside this

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United States District Court
Northern District of California

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district, the burden is likely to be on plaintiffs to travel for depositions, or alternatively to conduct

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depositions remotely. The Court handles all discovery issues in its cases, and the parties may be

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assured that it will take an active role in resolving disputes and requiring cost-efficient discovery

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practices. Defendants do not contest that the conduct plaintiffs challenge is alleged to have

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occurred throughout the United States, including in this district, and that at least one of the

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plaintiffs resides in this district. While the convenience of non-party witnesses for trial can be an

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important factor, see Van Mourik v. Big Heart Pet Brands, Inc., No. 3:17-cv-03889-JD, 2018 WL

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3549122, at *2 (N.D. Cal. Jul. 24, 2018), defendants have not demonstrated with any degree of

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certainty why New York might be more convenient for a trial than San Francisco. With respect to

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plaintiffs’ choice of forum, it is not a dispositive factor here, but neither is it entirely irrelevant, as

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defendants say. See Lou v. Belzberg, 834 F.2d 730, 739 (9th Cir. 1987).
Consequently, defendants have not carried their burden of demonstrating that the S.D.N.Y.

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is the more appropriate forum for this litigation. A transfer is denied.

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II.

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ADMINISTRATIVE MOTION RE INJUNCTION APPLICATION
In response to plaintiffs’ Application for an Order to Show Cause Why Injunction Should

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Not Issue, Dkt. No. 259, defendants have filed an administrative motion that makes a number of

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requests in the alternative. Dkt. No. 261. The request to strike plaintiffs’ motion as duplicative is

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denied. The motion states that it is based on “new evidence,” Dkt. No. 259 at 1, and the Court

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accepts that representation.

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Defendants’ request for more time to respond to the motion is granted. The response is
due by July 22, 2021. Plaintiffs may file a reply by August 19, 2021.
The Court will hear plaintiffs’ injunction motion on September 9, 2021, at 10:00 a.m., and

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consider it together with plaintiffs’ previous injunction motion, Dkt. No. 19. The parties should be

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prepared to address the two motions together at the hearing. The Court will advise the parties in

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advance of the hearing date whether the hearing will be held in person or by remote access. If the

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parties have a preference, they may state it in a joint filing.

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United States District Court
Northern District of California

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IT IS SO ORDERED.
Dated: June 3, 2021

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JAMES DONATO
United States District Judge

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