Amabile et al v. Bank of America Corporation et al

Filing 104

MEMORANDUM AND ORDER: in case 1:11-cv-02613-NRB; terminating (1349) Letter Motion for Discovery; terminating (1353) Letter Motion for Discovery in case 1:11-md-02262-NRB. Finally, with respect to the interdealer broker defendants,ICAP plc, ICAP Europ e Limited, and Tullet Prebon plc, plaintiffs have not pleaded any facts indicating that these defendants engaged in any suit-related conduct in or directed towards the United States with respect to persistent suppression claims. Rather, plaintiffs on ly allege broadly that these defendants have significant operations in the United States, which, without more, is insufficient to subject these defendants to the jurisdiction of this Court. Therefore, Commodity Exchange Act and fraud claims based on persistent suppression are dismissed as to the following defendants in the listed cases: (see page 11 on Memorandum and Order). The remaining jurisdictional disputes regarding the Direct Action Plaintiffs' claims will be resolved in a forthcoming Memorandum and Order. This Memorandum and Order terminates docket nos. 1339, 1349, and 1353. IT IS SO ORDERED. (Signed by Judge Naomi Reice Buchwald on 4/28/2016) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------X
In re:
MEMORANDUM AND ORDER

LIBOR-Based Financial Instruments
Antitrust Litigation.

11 MD 2262 (NRB)

This Document Applies to:
CASES LISTED IN APPENDIX.
----------------------------------------X
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
The Exchange-Based, Lender, and Direct Action Plaintiffs
request

jurisdictional

discovery

to

determine,

in

accordance

with our decisions in LIBOR IV and LIBOR V, whether this Court
may exercise personal jurisdiction over certain defendants.

In

those decisions, we upheld personal jurisdiction for fraud and
Commodity Exchange Act claims against panel banks “where the
LIBOR submission was determined or transmitted” and, for traderbased claims, we additionally upheld personal jurisdiction “in
the location of the person who requested the submitter to engage
in manipulation.”

LIBOR IV, 11 MD 2262, 2015 WL 6243526, at

*38, 2015 U.S. Dist. LEXIS 147561, at **189-90 (S.D.N.Y. Oct.
20, 2015); see also LIBOR V, 11 MD 2262, 2015 WL 6696407, at *8,
2015

U.S.

2015).

Dist.

LEXIS

149629,

at

**66-67

(S.D.N.Y.

Nov.

3,

For the reasons stated herein, plaintiffs’ requests are

granted in part and denied in part.

1

Plaintiffs’ requests for jurisdictional discovery must be
evaluated

in

the

context

previously

provided

connection

with

Plaintiffs’

submitted
of

activities.
class

the

their

the

for

the

jurisdictional

defendants.

motions

complaints

defendants
location

by

of

to
lack

affidavits
LIBOR

Specifically,

dismiss
of

the

personal

regarding,

submission

information

Direct

Action

jurisdiction,

inter

and

in

alia,

the

decisionmaking

When briefing the motion to dismiss the putative

actions

for

lack

of

personal

jurisdiction,

defendants

resubmitted these declarations in support of their motion.
In

LIBOR

V,

this

Court

directed

the

Exchange-Based

Plaintiffs, Lender Plaintiffs, and defendants moving to dismiss
for lack of personal jurisdiction to submit a chart identifying
the claims dismissed on personal jurisdiction grounds.

LIBOR V,

2015 WL 6696407, at *8, *20, 2015 U.S. Dist. LEXIS 149629, at
*67, **99-100.

In addition, the Exchange-Based Plaintiffs have

proposed a Third Amended Complaint, which includes additional
jurisdictional

allegations

and

names

new

defendants,

whom have challenged this Court’s jurisdiction.
recent

decisions,

this

Court

held

that

the

some

of

Further, in two
Exchange-Based

Plaintiffs had not put forth a prima facie showing of personal

2

jurisdiction over certain defendants for claims relating to the
persistent suppression of LIBOR.1
Both the Exchange-Based and Lender Plaintiffs contend that
no Commodity Exchange Act or fraud2 claims should be dismissed
prior

to

jurisdictional

discovery.

The

Exchange-Based

Plaintiffs have requested jurisdictional discovery to determine
“the location of all offices from which submissions were made;
whether

these

Period;

.

.

locations
.

where

changed

all

bank

over

time

officials

during
that

the

Class

determined

or

influenced LIBOR submissions were located[;] . . . the location
of all persons that requested submitters to manipulate LIBOR, as
well as the location of the submitters and the location to which
the

submitter

aimed

its

conduct

or

intended

an

effect

on

a

trading position.”

Kurtzberg Letter, Ex. B at 3, March 10,

2016, ECF No. 1339.

These plaintiffs assert that the affidavits

submitted

by

Exchange-Based

defendants
Plaintiffs

are

insufficient.

seek

In

jurisdictional

addition,

the

discovery

“to

determine whether bank affiliates or subsidiaries based in the
U.S. engaged in aiding and abetting of Panel Banks’ alleged
1 Bank of Tokyo-Mitsubishi UFJ, Ltd.; Coöperatieve Rabobank U.A. (f/k/a
Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A.) (“Rabobank”); Credit
Suisse AG;
Credit Suisse Group AG; Deutsche Bank AG (“Deutsche Bank”); DB
Group Services (UK) Ltd.; HBOS plc; HSBC Bank plc; HSBC Holdings plc; ICAP
plc; ICAP Europe Limited; Lloyds Banking Group plc; Lloyds Bank plc; The
Norinchukin Bank; Portigon AG (f/k/a WestLB AG); Royal Bank of Canada; The
Royal Bank of Scotland Group plc; The Royal Bank of Scotland plc; Tullet
Prebon plc; and Westdeutsche Immobilien Bank AG.
2

Other than fraud claims against
Enterprises Ltd., and BBA LIBOR Ltd.

the

3

British

Bankers’

Association,

BBA

false

LIBOR

submissions”

and

“to

requester

traded

in

Eurodollar

positions

linked

to

the

same

determine

futures
IMM

whether

or

fixes

a
or

options,

to

which

LIBOR
other

Eurodollar

futures and options settle” in order to “help to establish which
forum

the

requester’s

intended.”

and

Id. at 6-7.

submitter’s

conduct

was

aimed

or

The Lender Plaintiffs join the requests

for jurisdictional discovery related to persistent suppression.
In LIBOR IV, “due to the sheer number of allegations and
the lack of clarity in many complaints as to which claims [were]
alleged against which defendants . . . we direct[ed] the parties
to confer and provide us with a spreadsheet containing a list of
claims that, in accordance with [our] conclusions . . . are
dismissed

on

jurisdictional

grounds.”

LIBOR

IV,

2015

WL

6243526, at *37, 2015 U.S. Dist. LEXIS 147561, at *186 (S.D.N.Y.
Oct.

20,

2015).

In

order

to

supplement

the

already

filed

who

assert,

inter

spreadsheet,

the

Direct

Action

Plaintiffs,

alia,

law

fraud

claims

based

state

persistent

defendants made and determined their LIBOR submissions.

They

identifying

that
the

some

LIBOR,

defendants

location

seek

discovery

submitted

their

of

never

LIBOR

as

alleged
where

out

of

defendants’

to

point

suppression

on

an

affidavit

submitters

and

decisionmakers and contend that some affidavits do not include
critical information.

Further, they assert that it is not clear

that defendants’ declarations, submitted prior to this Court’s
4

jurisdictional rulings, use “determined” in the same way as this
Court.
With respect to persistent suppression claims, defendants
contend

that

plaintiffs

their

affidavits

request.

With

provide

respect

the

to

information

trader-based

that

claims,

defendants contend that, without a valid claim, plaintiffs may
not seek jurisdictional discovery.
Plaintiffs’
futures

request

holdings

plaintiffs,

who

for
of

have

Regarding the Exchange-Based

information

regarding

requesters,
not

shown

the

defendants

that

Eurodollar

argue

defendants

that

aimed

their

LIBOR-manipulation at the United States, may not seek discovery
in order to enable them to make out a prima facie showing of
personal jurisdiction.
DISCUSSION
“A district court has wide latitude to determine the scope
of discovery and is typically within its discretion to deny
jurisdictional discovery when the plaintiff has not made out a
prima facie case for jurisdiction.”

Frontera Res. Azer. Corp.

v. State Oil Co. of Azer. Republic, 582 F.3d 393, 401 (2d Cir.
2009)

(alterations,

omitted).

While

a

citations,
district

and

court

internal
may

quotation

permit

marks

jurisdictional

discovery even if a plaintiff has not made out a prima facie
case of personal jurisdiction, Ehrenfeld v. Mahfouz, 489 F.3d
542, 550 n.6 (2d Cir. 2007), a plaintiff should “first make a
5

threshold showing that there is some basis for the assertion of
jurisdiction.”

Daval Steel Prods. v. M.V. Juraj Dalmatinac, 718

F. Supp. 159, 162 (S.D.N.Y. 1989).
We

largely

agree

with

defendants

that

the

affidavits

regarding the LIBOR submission activities of the panel banks
provide

sufficient

information

to

determine

whether

personal

jurisdiction exists under our rulings in LIBOR IV and LIBOR V
without resort to jurisdictional discovery.

For the most part,

these affidavits clearly state that LIBOR submissions were made
and

determined

outside

of

the

United

States.

However,

the

declarations submitted on behalf of Citigroup Inc., Citibank,
N.A.,

Citigroup

Products

Inc.,

(together,

the

Global
Citigroup
“Citi

Markets,
Funding

Inc.,
Inc.,

defendants”);3

Citigroup
and

Citi

JPMorgan

Financial

Swapco

Chase

&

Inc.
Co.,

JPMorgan Chase Bank, N.A., J.P. Morgan Markets Limited, J.P.
Morgan Dublin plc, and Chase Bank USA, N.A.; and The Royal Bank
of Scotland Group plc and The Royal Bank of Scotland plc lack
information
only

regarding

identify

the

where

these

location

banks

from

which

transmitted their LIBOR submissions.
submit

updated

affidavits

identifying

3

determined
these

LIBOR

and

defendants

These defendants should
where

they

determined

Because the Judicial Panel on Multidistrict Litigation transferred several
of the Direct Action Plaintiffs’ cases from courts in other states and we
therefore “analyze whether personal jurisdiction exists . . . in the
transferor court,” LIBOR IV, 2015 WL 6243526, at *22, 2015 U.S. Dist. LEXIS
147561, at *141, several defendants who do not challenge personal
jurisdiction in the United States generally do challenge jurisdiction in one
or more specific states.

6

LIBOR

during

the

relevant

time

periods.

Further,

Bank

of

America, N.A., which did not provide an affidavit in the first
instance, should submit an affidavit identifying the locations
in which it determined and transmitted its LIBOR submissions.
The Direct Action Plaintiffs also contend that HSBC Bank plc and
HSBC

Holdings

identify

the

plc

(together,

location

determinations.

of

the

“HSBC

their

defendants”)

LIBOR

did

submissions

not
and

However, the affidavit on behalf of HSBC Bank

plc states that it has no “offices, branches, or other regular
place of business . . . in any . . . state in the United
States,”

Decl.

of

Nicola

S.

Black,

ECF

No.

790,

while

HSBC

Holdings plc stated that it is not a panel bank, all of which
implies that HSBC Bank plc made its LIBOR determinations and
submissions outside of the United States.

While we are inclined

to find the current state of the record sufficient, to avoid any
issue, we direct the HSBC defendants to submit an affidavit in
conformity with the Court’s articulated standard.
With respect to the remaining defendants challenging this
Court’s jurisdiction, plaintiffs’ submissions do not identify
facts

that

indicate

that

discovery

could

show

that

those

defendants determined or submitted LIBOR in forums that would
allow

this

contacts

Court

to

sufficient

exercise
to

personal

assert

jurisdiction.

personal

jurisdiction

First,
over

defendants for trader-based claims do not suffice as a threshold
7

showing

with

respect

to

persistent

suppression

claims.

For

example, that a panel bank employee in New York requested a
LIBOR submission beneficial to his or her trading position on
one day — or on many days — does not suggest that reputationbased LIBOR suppression originated in New York or anywhere else
in

the

United

distinction

States.

between

Plaintiffs

trader-based

claims is artificial.

and

have

argued

persistent

that

this

suppression

They have supported this argument by

pointing to evidence that certain panel banks such as Deutsche
Bank and Rabobank engaged in routine trader-based manipulation,
but have failed to link this activity to reputation-oriented
persistent suppression, except to note that they occurred over
the same time period or that a derivatives trader was aware of
persistent suppression.
insufficient

to

However, such “connections” are plainly

attribute

the

jurisdictional

contacts

of

one

scheme, undertaken to increase the profits or stem the losses of
derivative

traders,

to

the

other,

undertaken

to

bolster

the

perception of the panel banks’ creditworthiness.
Second, the fact of significant activity, by a defendant or
its affiliates, in this country, combined with some evidence of
LIBOR manipulation in London, provides no indication that the
LIBOR determination and submission process occurred any place
other

than

outside

the

United

States.

Finally,

evidence

indicating that a New York-based employee of one of the Citi
8

defendants
indicate

influenced
that

deficient.

that

other

bank’s

LIBOR

defendants’

submissions

affidavits

does

are

not

somehow

Rather, this fact is not inconsistent with the Citi

defendants’

affidavit,

which

states

only

that

its

LIBOR

submissions were made in London and does not address where the
determinations were made, resulting in our direction that the
Citi

defendants

alleged

supplement

conduct

does

their

not

submission.

implicate

Further,

the

decisionmaking process of any other entity.

this

LIBOR-related

In sum, while in

the typical case we might order jurisdictional discovery where
pertinent jurisdictional facts lie solely within the defendants’
possession, plaintiffs have simply not identified any reason to
think

that

banks

headquartered

in

Japan,

the

Netherlands,

Canada, Germany, the UK, and Switzerland made determinations as
to expected interbank borrowing rates in London anywhere other
than London or the country in which they are domiciled.
With
obtain
against

respect

to

jurisdictional
whom

they

trader-based
discovery

have

not

claims,
with

stated

a

plaintiffs

may

respect

to

claim.

Regarding

not

defendants
the

defendants against whom plaintiffs have stated a trader-based
claim, jurisdictional discovery is unnecessary, as this Court
may exercise personal jurisdiction over those defendants with
respect to those claims, and further discovery identifying other
such

claims

is

properly

conducted
9

during

merits

discovery.

Plaintiffs’

related

request

to

determine

whether

a

requester

traded in Eurodollar futures or options in order to determine
the

forum

at

which

the

submitter

and

requester

aimed

their

conduct is denied, as plaintiffs have not identified any reason
to

believe

that

Deutsche

Bank’s

or

submitters traded such instruments.

Rabobank’s

requesters

or

To the extent that merits

discovery uncovers any such evidence, plaintiffs may seek leave
to amend their complaint.
The

Exchange-Based

Plaintiffs

request

for

discovery

to

determine whether United States-based related entities aided and
abetted the panel banks’ allegedly illegal activity is denied.
Plaintiffs

have

not

pleaded

facts

or

submitted

supporting

material that suggests that any panel bank’s United States-based
affiliate

played

a

role

in

that

bank’s

alleged

persistent

suppression of LIBOR.
Finally, with respect to the interdealer broker defendants,
ICAP plc, ICAP Europe Limited, and Tullet Prebon plc, plaintiffs
have

not

pleaded

any

facts

indicating

that

these

defendants

engaged in any suit-related conduct in or directed towards the
United
Rather,

States

with

plaintiffs

respect
only

to

allege

persistent
broadly

suppression

that

these

claims.

defendants

have significant operations in the United States, which, without
more,

is

insufficient

to

subject

jurisdiction of this Court.
10

these

defendants

to

the

Therefore, Commodity Exchange Act and fraud claims based on
persistent

suppression

are

dismissed

as

to

the

following

defendants in the listed cases:
Case

Dismissed Defendants

Metzler Inv. GmbH v.
Credit Suisse Grp. AG,
No.
11-cv-2613
(NRB)
(S.D.N.Y.)

Bank of Tokyo-Mitsubishi UFJ, Ltd.;
Rabobank
U.A.
(f/k/a
Coöperatieve
Coöperatieve
Centrale
RaiffeisenBoerenleenbank B.A.); Credit Suisse AG;
Credit Suisse Group AG; Deutsche Bank
AG; DB Group Services (UK) Ltd.; HBOS
plc; ICAP plc; ICAP Europe Limited;
Lloyds Banking Group plc; Lloyds Bank
plc; The Norinchukin Bank; Portigon AG
(f/k/a WestLB AG); Royal Bank of
Canada; Tullet Prebon plc; Westdeutsche
Immobilien Bank AG
Berkshire Bank v. Bank Bank of Tokyo-Mitsubishi UFJ, Ltd.;
of Am. Corp., No. 12-cv- Barclays
Bank
plc;
Coöperatieve
5723 (NRB) (S.D.N.Y.)
Rabobank
U.A.
(f/k/a
Coöperatieve
Centrale
Raiffeisen-Boerenleenbank
B.A.);
Credit
Suisse
Group
AG;
Deutsche Bank AG; HBOS plc; Lloyds
Banking Group plc; The Norinchukin
Bank; Portigon AG (f/k/a WestLB AG);
Royal Bank of Canada; Westdeustsche
Immobilien Bank AG

11

The
Action

remaining
Plaintiffs'

j ur isdi ctional

claims

Order.

w1ll

Memorandum

and

This

docket nos.

disputes
be

regarding the

resolved

Memorandum

and

in

a

Order

Direct

forthcoming
terminates

1339, 1349, and 1353.

IT IS SO ORDERED.
Dated:

New York, New York
April 28, 2016

L~/

NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE

12

APPENDIX
This Memorandum applies to the following cases:

CASE NAME

CASE NO.

In re Libor-Based Financial Instruments Antitrust

11-md-2262

Litigation
Metzler Inv. GmbH v. Credit Suisse Grp. AG et al.

11-cv-2613

Berkshire Bank v. Bank of Am. Corp. et al.

12-cv-5723

City of Riverside et al. v. Bank of America Corp.

13-cv-0597

et al.
County of San Mateo et al. v. Bank of America

13-cv-0625

Corp. et al.
East Bay Municipal Utility District v. Bank of

13-cv-0626

America Corp. et al.
City of Richmond et al. v. Bank of America Corp.

13-cv-0627

et al.
County of San Diego v. Bank of America Corp.

13-cv-0667

et al.
Amabile et al. v. Bank of America Corp. et al.

13-cv-1700

Maragos v. Bank of America Corp. et al.

13-cv-2297

Federal Home Loan Mortgage Corp. v. Bank of

13-cv-3952

America Corp. et al.
Salix Capital US Inc. et al. v. Banc of America

13-cv-4018

Securities LLC et al.
Regents of the University of California v. Bank of
America Corp. et al.

A-1

13-cv-5186

County of Sonoma et al. v. Bank of America Corp.

13-cv-5187

et al.
San Diego Association of Governments v. Bank of

13-cv-5221

America Corp. et al.
CEMA Joint Venture v. RBS Citizens, N.A. et al.

13-cv-5511

County of Sacramento v. Bank of America Corp.

13-cv-5569

et al.
City of Houston v. Bank of America Corp. et al.

13-cv-5616

Principal Funds, Inc. et al. v. Bank of America

13-cv-6013

Corp. et al.
Principal Financial Group, Inc. et al. v. Bank of

13-cv-6014

America Corp. et al.
City of Philadelphia v. Bank of America Corp.

13-cv-6020

et al.
National Credit Union Administration Board v.

13-cv-7394

Credit Suisse Group AG et al.
Federal National Mortgage Ass’n v. Barclays Bank

13-cv-7720

plc et al.
County of Mendocino v. Bank of America Corp.

13-cv-8644

et al.
Darby Financial Products et al. v. Barclays Bank

13-cv-8799

plc et al.
Triaxx Prime CDO 2006-1 Ltd. et al. v. Bank of

14-cv-0146

America Corp. et al.
Federal Deposit Insurance Co. et al. v. Bank of
America Corp. et al.

A-2

14-cv-1757

Bay Area Toll Authority v. Bank of America Corp.

14-cv-3094

et al.
Prudential Investment Portfolios 2 et al. v. Bank
of America Corp. et al.

A-3

14-cv-4189