Last Atlantis, et al v. Chgo Bd Options Ex, et al

Filing 1689

MEMORANDUM Opinion and Order Signed by the Honorable John Robert Blakey on 5/29/2018. Mailed notice(gel, )

Case: 1:04-cv-00397 Document #: 1689 Filed: 05/29/18 Page 1 of 8 PageID #:60664

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LAST ATLANTIS CAPITAL LLC, et al.,
Plaintiffs,
v.
AGS SPECIALIST PARTNERS, et al.
Defendants.

)
)
)
)
)
)
)
)
)

Case No. 04 C 397
Judge John Robert Blakey

MEMORANDUM OPINION AND ORDER

This case is before the Court on the Susquehanna Defendants’ motion to alter
judgment [1640], and on the Chicago Board Options Exchange’s motion for
sanctions [1643]. Also before the Court is the Susquehanna Defendants’ Bill of
Costs [1647].
Background
As detailed in the May 2, 2017 opinion granting summary judgment for the
Susquehanna Defendants, this case has a long and tortured history. 1 After more
than a decade of litigation, however, this Court brought the case to resolution when
it became clear that Plaintiffs possessed no competent evidence to prove their
claims and thus could not proceed to trial. After this Court issued its decision and
closed the case, the Susquehanna Defendants moved to alter the judgment to
include an award of attorneys’ fees, expenses and costs pursuant to the Private
Securities Litigation Reform Act (PSLRA), Federal Rule of Civil Procedure 11, 28
U.S.C. § 1927, and the Illinois Consumer Fraud Act. See [1640]. The CBOE, which
1

This Court incorporates by reference, and presumes familiarity with, its prior opinion.

Case: 1:04-cv-00397 Document #: 1689 Filed: 05/29/18 Page 2 of 8 PageID #:60665

has been out of the case since March 22, 2007 (when the Court dismissed with
prejudice the claims against it) also filed a motion asking the Court to impose
sanctions pursuant to the PSLRA and Rule 11.

See [1643].

Finally, the

Susquehanna Defendants filed a bill of costs, seeking to recover $99,115.31 in
deposition-related expenses and copying charges.
Discussion
A.

Defendants’ Sanctions Motions
Under the PSLRA, “upon final adjudication of the action, the court shall

include in the record specific findings regarding compliance by each party and each
attorney representing any party with each requirement of Rule 11(b) of the Federal
Rules of Civil Procedure as to any complaint, responsive pleading, or dispositive
motion.” 15 U.S.C. § 78u–4(c)(1); see also City of Livonia Emps' Ret. Sys. & Local
295/Local 851 v. Boeing Co., 711 F.3d 754, 757 (7th Cir. 2013).

If the court

concludes that there has been a Rule 11 violation, then it must impose sanctions on
the party or attorney who violated the rule. 15 U.S.C. § 78u–4(c)(2);

Boca Raton

Firefighters’ & Police Pension Fund v. Devry Inc., No. 10 C 7031, 2014 WL 1847833,
at *3 (N.D. Ill. May 8, 2014).
Rule 11 establishes that each time an attorney presents a pleading to the
court, he “certifies that to the best of [his] knowledge, information, and belief,
formed after an inquiry reasonable under the circumstances” that (1) it is “not being
presented for an improper purpose,” (2) “the claims are warranted by existing law,”
and (3) “the factual contentions have evidentiary support.” Fed. R. Civ. P. 11(b). In
determining whether to impose sanctions, a court “must undertake an objective
2

Case: 1:04-cv-00397 Document #: 1689 Filed: 05/29/18 Page 3 of 8 PageID #:60666

inquiry into whether the party or his counsel should have known that his position is
groundless.” Cuna Mut. Ins. Soc. v. Office & Prof’l Employees Int’l Union, Local 39,
443 F.3d 556, 560 (7th Cir. 2006) (citations and internal quotation marks omitted).
Turning first to the CBOE’s motion, Plaintiffs’ amended consolidated
complaint alleged that the Exchange Defendants (including the CBOE) participated
in a manipulative scheme with the specialist defendants by developing the
technology that allowed the specialists to discriminate against them in violation of §
10b of the Exchange Act and SEC Rule 10b–5 (a) and (c), and that the Exchange
Defendants made false and misleading statements regarding the operation of their
markets in violation of Rule 10b-5(b). In dismissing the complaint, Judge Bucklo
noted that Plaintiffs had lumped together all of the Exchange Defendants and
therefore failed to allege specific factual information from which the court could
draw an inference of scienter:
[P]laintiffs’ argument amounts to a suggestion that because these
technological features exist at all, and because these features were
subsequently abused by the specialist defendants, the exchange
defendants must have developed these features in concert with the
specialists as part of a scheme to defraud direct access customers. As
discussed earlier, this type of result-based reasoning and unsupported
speculation is insufficient to meet the requirements of the PSLRA,
which requires plaintiffs to allege facts from which I could strongly
infer scienter at the time the technology was developed.
[239] at 22-23. Judge Bucklo also noted that Plaintiffs “repeatedly argue in general
terms that their complaint alleges in detail numerous misleading statements and
omissions, but do not point the court to any specific misrepresentations in their
complaint.”

[239] at 23.

Accordingly, because the complaint’s generalized

3

Case: 1:04-cv-00397 Document #: 1689 Filed: 05/29/18 Page 4 of 8 PageID #:60667

allegations lacked the specificity required under the PSLRA, the court granted the
Exchange Defendants’ motion to dismiss. Plaintiffs moved for reconsideration, and,
although the Court allowed Plaintiffs to replead claims against the Specialist
Defendants (which had also been dismissed), the court denied the motion for
reconsideration as to the Exchange Defendants, stating as follows:
As to the claims against the Exchange defendants, the proposed
amended complaint fails to remedy the defects in pleading against
these defendants. At most it says that the Exchange defendants
provided equipment enabling the other defendants to violate federal
securities laws and failed to enforce their rules or representations that
orders would be filled promptly and automatically (although ironically,
much of the basis for the motion to reconsider are orders issued by one
of the Exchange defendants against certain specialist defendants).
These allegations do not state a claim under Rule 10b-5. See In re
NYSE Specialists Securities Litigation, 405 F. Supp.2d 281, 304
(S.D.N.Y. 2005), and cases previously discussed concerning pleading
requirements. There is also no basis cited in the complaint upon which
to
conclude
that
the
Exchange
defendants
made
any
misrepresentations with the required scienter. Essentially, plaintiffs
argue that the Exchange defendants are guilty of providing equipment
to the specialist defendants that enabled them to engage in the
allegedly illegal conduct. This is an insufficient basis for a claim that
these defendants knowingly participated in illegal conduct. The fact
that plaintiffs believe there could have been no legitimate basis for
providing the equipment does not provide a basis for believing that
these defendants acted with scienter. After three attempts, I conclude
that plaintiffs cannot state a viable federal claim against the Exchange
defendants and the dismissal with prejudice will stand as to these
defendants.
[284]. Although Judge Bucklo declined to allow Plaintiffs to replead their claims
against the Exchange Defendants, her order does not suggest that she found
Plaintiffs’ claims to be frivolous—despite the fact that she had already dismissed
the claims for essentially the same reason. See [103].

As a result, the record

contains an insufficient basis to find a Rule 11 violation as to the CBOE.
4

Case: 1:04-cv-00397 Document #: 1689 Filed: 05/29/18 Page 5 of 8 PageID #:60668

Nor can the Court say that Plaintiffs’ complaint was frivolous as to the
Specialist Defendants, including the Susquehanna Defendants.

Although Judge

Bucklo initially dismissed the consolidated complaint as to all defendants, see [239],
she subsequently granted Plaintiffs’ motion to reconsider and allowed Plaintiffs to
proceed against the specialist defendants, see [284]. Moreover, Judge Bucklo later
declined to grant summary judgment on Plaintiffs’ claims, see [966]. And, although
this Court ultimately did grant summary judgment in favor of the Susquehanna
Defendants, it did so because Plaintiffs failed to offer admissible evidence to prove
each of the requisite elements of their claims, not because they lacked any factual
basis for the claims. The record suggests that evidence to support the claims may
exist, but Plaintiffs failed to gather or present such evidence in a way that satisfied
the Rules of Evidence.
To be sure, Plaintiffs’ management of their case left much to be desired.
Counsel seemed to have little regard for the rules of evidence or this Court’s orders.
But at the end of the day, this Court cannot say that Plaintiffs acted in bad-faith in
pursuing their claims. Plaintiffs’ claims failed because Plaintiffs failed to marshal
competent admissible evidence to support them.

As the Court indicated in its

summary

have

judgment

decision,

Plaintiffs

could

“attempted

to

obtain

certifications from exchange witnesses, designated deposition testimony from such
witnesses or simply subpoenaed a proper witness to potentially lay a foundation for
any requisite lists and data,” yet they did none of those things. [1637] at 58. The
Court cannot rule, however, that Plaintiffs’ inaction resulted from the lack of any

5

Case: 1:04-cv-00397 Document #: 1689 Filed: 05/29/18 Page 6 of 8 PageID #:60669

factual or legal basis for the asserted claims.

As a result, the Court declines to

award sanctions under Rule 11. The Court already granted summary judgment in
Defendants’ favor because of Plaintiffs’ failure to present admissible evidence to
show that any orders placed by Plaintiffs were mishandled by any Defendant, a
necessary predicate to their claims. No further sanction is required.
The Susquehanna Defendants also seek an award of fees and costs under 28
U.S.C. § 1927. That statute provides:
Any attorney or other person admitted to conduct cases in any court of
the United States or any Territory thereof who so multiplies the
proceedings in any case unreasonably and vexatiously may be required
by the court to satisfy personally the excess costs, expenses, and
attorneys’ fees reasonably incurred because of such conduct.
Rule 11 and § 1927 “overlap in their prohibition of conduct which is intended to
impede and multiply the proceedings.” Kapco Mfg. Co. Inc. v. C & O Enters., Inc.,
886 F.2d 1485, 1491 (7th Cir. 1989). Although this case dragged on for more than a
decade, Plaintiffs’ counsel’s behavior constitutes just one of the various reasons that
this case lasted as long as it did. Having declined to award sanctions under Rule
11, the Court similarly declines to award fees under § 1927.
Nor will the Court award fees under the Illinois Consumer Fraud Act. Before
awarding fees and costs under that statute, this Court would have to find that
Plaintiffs pursued the case in bad faith. 815 ILCS 505/10a(c); Goldberg v. 401 N.
Wabash Venture LLC, No. 09 C 6455, 2013 WL 5376556, at *2 (N.D. Ill. Sept. 25,
2013). As explained above, the Court is not persuaded that that is the case.

6

Case: 1:04-cv-00397 Document #: 1689 Filed: 05/29/18 Page 7 of 8 PageID #:60670

B.

The Susquehanna Defendants’ Bill of Costs
The Court turns next to Defendants’ bill of costs [1647]. Federal Rule of Civil

Procedure 54 provides that “[u]nless a federal statute, these rules, or a court order
provides otherwise, costs—other than attorney’s fees—should be allowed to the
prevailing party.” Local Rule 54.1 provides that “[w]ithin 30 days of the entry of a
judgment allowing costs, the prevailing party shall file a bill of costs with the clerk
and serve a copy of the bill on each adverse party.” Here, there is no question that
Defendants prevailed, and there is no question that Defendants’ bill of costs is
timely: the Court entered judgment on May 2, 2017, and Defendants filed their bill
of costs on May 31, 2017.
The specific costs subject to taxation are listed in 28 U.S.C. §1920. The costs
claimed by Defendants—costs for deposition transcripts and copying—both are
allowed under this statute. Id. § 1920(2), (4). To be awarded, the costs must also be
both reasonable and necessary.

E.g., Interclaim Holdings Ltd. v. Ness, Motley,

Loadholt, Richardson & Poole, No. 00 C 7620, 2004 WL 557388, at *2 (N.D. Ill.
March 22, 2004). Here, the Court finds that the requested costs are both reasonable
and necessary; indeed, Plaintiffs did not object to any of the claimed costs.
Accordingly, the Clerk is directed to tax costs in the amount of $99,115.31.
CONCLUSION
Upon review of the record, the Court declines to impose any additional
sanction on Plaintiffs or their attorneys under the PSLRA, Rule 11 or any other
statute.

Accordingly, the Court denies the Susquehanna Defendants’ motion to

7

Case: 1:04-cv-00397 Document #: 1689 Filed: 05/29/18 Page 8 of 8 PageID #:60671

alter the judgment [1640] and denies the CBOE’s request for sanctions [1653].
Defendants’ bill of costs [1647] is allowed, however, and the Clerk is directed to tax
costs in the amount of $99,115.31.
Dated: May 29, 2018
Entered:
____________________________
John Robert Blakey
United States District Judge

8