Fujifilm Manufacturing U.S.A., Inc. v. Goldman Sachs & Co. et al

Filing 182

OPINION & ORDER: For the foregoing reasons, the Court denies GIAG and Pacorini Vlissingen's motions to dismiss for lack of personal jurisdiction. As Judge Forrest noted in denying the class plaintiffs' and other individual plaintiffs' motions for leave to amend their complaints to add, inter alia, GIAG and Pacorini Vlissingen as defendants, this "create[s] a disparity between... Fujifilm's [case] on the one hand and the [other plaintiffs'] on the other. In light of how we have reached that disparity, however, the Court believes the most equitable and efficient course is to proceed with two different operative case theories in two parallel tracks." In re Aluminum Warehousing Antitrust Litig., 2016 WL 16293 50, at *8. This observation is today, at this later juncture, at least as apt, if not more so. For avoidance of doubt, GIAG and Pacorini Vlissingen are defendants in the Fujifilm and Reynolds & Southwire cases only. See No. 15 Civ. 8307 (PAE); No. 16 Civ. 5955 (PAE).24 The Court directs GIAG and Pacorini Vlissingen to answer, or otherwise respond to, the AC by May 12, 2020. The Court further directs counsel for GIAG, Pacorini Vlissingen, Fujifilm, and Reynolds Consumer Products LLC to meet and c onfer to discuss next steps by May 4, 2020. The Court requests a joint letter, due May 12, 2020, from those parties setting forth a plan for what the Court is confident will be limited additional discovery relating to GIAG and Pacorini Vlissingen. The motions at dockets 83 and 94 are closed. (Signed by Judge Paul A. Engelmayer on 4/28/2020) (jwh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

IN RE ALUMINUM WAREHOUSING
ANTITRUST LITIGATION
This Document Relates To:
Fujifilm Manufacturing U.S.A., Inc. v. Goldman
Sachs & Co., No. 15-cv-8307-PAE (S.D.N.Y.)

13-md-2481 (PAE)
15-cv-8307 (PAE)
OPINION & ORDER

PAUL A. ENGELMAYER, District Judge:
Plaintiff Fujifilm Manufacturing U.S.A., Inc. (“Fujifilm”), is one of several individual
plaintiffs in this multidistrict litigation (“MDL”) who allege violations of Section 1 of the
Sherman Act, 15 U.S.C. § 1, in the form of a conspiracy to inflate aluminum prices. Fujifilm’s
amended complaint, Dkt. 35 (“AC”),1 brings an antitrust claim against 6 sets of defendants, each
of which either traded primary aluminum on the London Metals Exchange (“LME”) or stored
aluminum at warehouses certified by the LME.2 Fujifilm’s AC added certain foreign affiliates of
the principal defendants in this MDL, including Glencore International AG (“GIAG”) and
Pacorini Metals Vlissingen B.V. (“Pacorini Vlissingen”).3 Before the Court are GIAG and

1

Unless otherwise specified by reference to a specific docket number, all citations refer to the
Fujifilm docket, No. 15 Civ. 8307 (PAE).
2

As the Second Circuit recently explained, “[t]he term ‘primary aluminum’ is used in the
industry to describe aluminum in the form produced at a smelter or primary aluminum plant, by
original producers, as distinguished from ‘secondary aluminum,’ which is reconstituted
aluminum scrap.” Eastman Kodak Co. v. Henry Bath LLC, 936 F.3d 86, 88 (2d Cir. 2019).
3

Pacorini Vlissingen is now known as “Access World (Vlissingen) B.V.” See No. 13 MD 2481,
Dkt. 1146 at 14. However, for purposes of this motion, the Court uses that defendant’s former
name, which was in use during the relevant period.

Pacorini Vlissingen’s motions to dismiss for lack of personal jurisdiction under Federal Rule of
Civil Procedure 12(b)(2).
For the following reasons, the Court denies those motions.
I.

Background4
A.

The Parties

Fujifilm is a South Carolina corporation with its principal place of business in
Greenwood, South Carolina. AC ¶ 34. During the relevant period, Fujifilm purchased
high-grade lithographic aluminum coil directly from integrated aluminum producers in
connection with its manufacture of lithographic plates for use in the newspaper, commercial
printing, and graphics communications industries. Id.
There are 6 groups of defendants, three of which traded in primary aluminum and
primary aluminum derivatives on the LME during the relevant period (the “Financial

4

The Court here assumes familiarity with the history of this litigation and provides background
only to the extent necessary to resolve the pending motions. The Court’s account of the factual
allegations is drawn primarily from the AC. On a motion to dismiss for lack of personal
jurisdiction under Rule 12(b)(2), the Court may look beyond the four corners of the complaint
and consider materials outside of the pleadings, including accompanying affidavits, declarations,
and other written materials. See Jonas v. Estate of Leven, 116 F. Supp. 3d 314, 323
(S.D.N.Y. 2015) (citing MacDermid, Inc. v. Deiter, 702 F.3d 725, 727 (2d Cir. 2012)). The
allegations in the complaint are presumed true “to the extent they are uncontroverted by the
defendant’s affidavits,” MacDermid, 702 F.3d at 727 (citation omitted), and all factual disputes
are resolved in the plaintiff’s favor, see DiStefano v. Carozzi N. Am., Inc., 286 F.3d 81, 84
(2d Cir. 2001). Accordingly, in connection with GIAG’s motion to dismiss, the Court has
considered the declaration of John Burton in support of the motion, Dkt. 84 (“Burton Decl.”); the
declaration of Walter W. Noss, Esq., in opposition, Dkt. 106 (“First Noss Decl.”), and the
exhibits attached thereto; and the declaration of Eliot Lauer, Esq., in support, Dkt. 110 (“First
Lauer Decl.”). In connection with Pacorini Vlissingen’s motion, the Court has considered the
declaration of Debby Dutour Geerling in support of the motion, Dkt. 95 (“Geerling Decl.”); the
declaration of Walter W. Noss, Esq., in opposition, Dkt. 125 (“Second Noss Decl.”), and the
exhibits attached thereto; and the declaration of Eliot Lauer, Esq., in support, Dkt. 127 (“Second
Lauer Decl.”).
2

Defendants”), and three of which stored aluminum at LME-certified warehouses (the
“Warehousing Defendants”). Id. ¶¶ 40–69; see Henry Bath, 936 F.3d at 89.
The Financial Defendants are each affiliated with either Glencore Ltd., J.P. Morgan
Chase Bank, N.A., or Goldman Sachs & Co. Each group of Financial Defendants directly or
indirectly acquired one of the Warehousing Defendants in 2010, during a glut in the aluminum
market following the 2008 financial crisis. See AC ¶¶ 40, 56, 67.
Defendant Glencore Ltd., which is headquartered in Stamford, Connecticut, both actively
trades aluminum on the LME and sells large quantities of physical aluminum directly to large
industrial users in the United States. Id. ¶ 62. Defendant GIAG, is a Swiss corporation, with its
headquarters in Baar, Switzerland. Burton Decl. ¶ 3; AC ¶ 60. GIAG is an affiliate of Glencore
Ltd. AC ¶ 62.5
Defendant J.P. Morgan Chase Bank, N.A. (“JPMCB”), is a federally-chartered national
banking association headquartered in New York, New York. Id. ¶ 48. Defendant J.P. Morgan
Securities plc (“J.P. Morgan Securities”)—a wholly-owned subsidiary of JPMCB that provides
securities brokerage services—is headquartered in London, United Kingdom. Id. ¶ 49.6
Defendant Goldman Sachs & Co. is an international financial company headquartered in
New York, New York. Id. ¶ 40. Defendant J. Aron & Company is a New York corporation with
the same headquarters as Goldman Sachs & Co. Id. ¶ 42. Defendant Goldman Sachs

5

Fujifilm also originally listed Glencore AG as a separate defendant, AC ¶ 61, but Glencore AG
and Glencore Ltd. are different names used by the same company, see Dkt. 85 at 8;
No. 13 MD 2481, Dkt. 896 at 2 n.1. To the Court’s knowledge, this fact is not in dispute.

6

Where the AC and the parties’ submissions in connection with this motion do not make clear to
which J.P. Morgan entity they refer, the Court refers to JPMCB and J.P. Morgan Securities
collectively as “J.P. Morgan.” Neither party has suggested that the distinction between these J.P.
Morgan entities is relevant for purposes of deciding GIAG’s or Pacorini Vlissingen’s motions.
3

International is an international financial services provider headquartered in London, United
Kingdom. Id. ¶ 41. Each of these entities within what Fujifilm describes as the “Goldman Sachs
family of defendants,” id. ¶ 44, is a subsidiary of non-party The Goldman Sachs Group, Inc. Id.
¶¶ 40–42.7
The Warehousing Defendants are Pacorini Vlissingen, Pacorini Metals USA LLC
(“Pacorini USA,” and, together with Pacorini Vlissingen, “Pacorini”), Henry Bath LLC (“Henry
Bath”), and Metro International Trade Services LLC (“Metro”). Id. ¶¶ 46, 52, 64–65. Each of
the Warehousing Defendants “owns and operates aluminum warehouses certified by the LME,
and each of them was owned [directly or indirectly] during the relevant time by one of the
Financial Defendants—Henry Bath by J.P. Morgan, Metro by Goldman Sachs, and Pacorini by
Glencore.” Henry Bath, 936 F.3d at 89.
Defendant Pacorini USA is a Louisiana limited liability company with headquarters in
New Orleans, Louisiana. AC ¶ 64. Pacorini USA owns and operates LME-certified warehouses
in the United States—including warehouses in Detroit, Baltimore, Chicago, Los Angeles,
Mobile, and New Orleans—that store, among other metals, aluminum. Id. ¶ 64. Defendant
Pacorini Vlissingen is a Dutch corporation with its headquarters in Vlissingen-Oost, Netherlands.
Geerling Decl. ¶ 3. Pacorini Vlissingen owns and operates LME-certified warehouses in
Vlissingen, Netherlands, that store, among other metals, aluminum. AC ¶ 65. Beginning in
2010, the Pacorini entities were owned by one or more of the Glencore entities. See id. ¶ 67; see

7

Where the AC and the parties’ submissions in connection with this motion do not make clear to
which Goldman Sachs entity they refer, the Court refers to the three relevant entities collectively
as “Goldman Sachs.” Neither party has suggested that the distinction between these Goldman
Sachs entities is relevant for purposes of deciding GIAG’s or Pacorini Vlissingen’s motions.
4

also Burton Decl. ¶ 18 (“GIAG is an indirect corporate owner of [Pacorini USA], but does not
control nor is it involved in the day-to-day operations of [Pacorini USA].”).
Defendant Henry Bath is a Delaware limited liability company headquartered in
Baltimore, Maryland. AC ¶ 52. Henry Bath owns and operates numerous LME-certified
warehouses in the United States, including warehouses in Chicago, Baltimore, and New Orleans
that store, among other metals, aluminum. Id. Beginning in 2010, J.P. Morgan entities owned
Henry Bath’s parent corporation, Henry Bath & Son, Ltd. See id. ¶¶ 52, 56–59.
Defendant Metro is a Michigan limited liability company headquartered in Romulus,
Michigan. Id. ¶ 46. Metro owns and operates numerous LME-certified warehouses in the
United States, including several metal-storage warehouses in or around Detroit, Chicago, New
Orleans, and other cities. Id. Beginning in 2010, Goldman Sachs owned Metro. Id. ¶ 40.
B.

The MDL

Fujifilm, like other individual plaintiffs in the MDL, made domestic aluminum purchases
pursuant to long-term supply contracts with aluminum producers. Id. ¶ 34. In accordance with
industry standards, the purchase prices charged to Fujifilm pursuant to these contracts included,
as a component of price, the Platts Midwest Premium (the “Midwest Premium”), a regional
benchmark based on the costs associated with delivery of aluminum. Id. ¶¶ 34–35, 105–08; see
Henry Bath, 936 F.3d at 89, 91. Fujifilm also purchased aluminum from European suppliers
pursuant to similar contracts, which used the Rotterdam Premium, rather than the Midwest
Premium, as the relevant regional benchmark. AC ¶¶ 2, 23, 34, 36. Fujifilm further alleges that
increases to the Rotterdam Premium would generally cause an increase to the Midwest Premium,
and that defendants were aware of this relationship. See id. ¶ 110.
As the Second Circuit recently summarized, with regard to all plaintiffs’ complaints in
this MDL:
5

[T]he gist of the allegations is that the Financial Defendants, having acquired large
positions in primary aluminum at low prices during the economic downturn
following the 2008 market collapse in anticipation of future price increases,
conspired with each other and with the Warehousing Defendants to inflate
artificially the prices they would realize in the sale of these positions by
manipulating the Midwest Premium.
Henry Bath, 936 F.3d at 89. Fujifilm allegedly suffered harmed as a result of defendants’
conduct, by having to pay artificially inflated prices for aluminum under its long-term supply
contracts with aluminum producers. AC ¶¶ 23–28. That is, although Fujifilm, like almost all
other purchasers of primary aluminum for use in manufacturing, acquired aluminum directly
from producers, rather than through the LME, Fujifilm alleges that the MDL defendants’ conduct
involving the LME increased a component of the price Fujifilm paid to primary aluminum
producers.
C.

GIAG and Pacorini Vlissingen’s Contacts with the United States

GIAG, a Swiss corporation with headquarters in Switzerland, has never had offices or
employees in the United States. Burton Decl. ¶¶ 3–5. It has never maintained books or records,
had a bank account, or maintained a mailing address or telephone number anywhere in the
United States. Id. ¶¶ 6–9. It has never paid income or property taxes or owned or leased real
property anywhere in the United States. Id. ¶¶ 10–11. GIAG has never been registered to do
business, conducted officer or board meetings, or had a registered agent for service of process
anywhere in the United States. Id. ¶¶ 12–14. The same is true of Pacorini Vlissingen. Geerling
Decl. ¶¶ 6–16.
Fujifilm, however, alleges that GIAG and Pacorini Vlissingen each had several forms of
contact with the United States.

6

1.

The December 2011 Aluminum Swap

Fujifilm alleges that GIAG stored “substantial quantities of aluminum” in the United
States, AC ¶ 60, including in connection with a December 2011 aluminum swap involving J.P.
Morgan and Pacorini Vlissingen, id. ¶¶ 65, 231–34.
Resolving all doubts in Fujifilm’s favor, in December 2011, GIAG, Glencore Ltd., J.P.
Morgan, Pacorini Vlissingen, and others conspired to engineer a massive swap-and-cancellation
of aluminum warrants, which served to remove 860,000 tonnes of metal from available supply,
to build a massive queue at Pacorini Vlissingen, and to cause the Rotterdam Premium to rise
sharply. Id. ¶ 16. Specifically, GIAG provided J.P. Morgan warrants8 for approximately
860,000 tonnes of aluminum stored at Pacorini Vlissingen’s LME-certified warehouse in
Vlissingen, and J.P. Morgan provided GIAG warrants for approximately 860,000 tonnes of
aluminum located in Metro’s LME-certified warehouse in Detroit. Id. ¶¶ 16, 65, 231–34.9
GIAG thus, for at least a short period of time, acquired the rights to and stored 860,000 tonnes of
aluminum—representing about one-sixth of global LME aluminum stocks, id. ¶ 231—in Detroit.
Pursuant to the swap agreement, GIAG provided J.P. Morgan with incentives, including
favorable rent, in exchange for J.P. Morgan’s cancelling 500,000 tonnes of the Vlissingen
8

An LME warrant is a document of title entitling the owner to a specified lot of aluminum in a
specified LME warehouse. AC ¶¶ 5–6, 118.
9

In general, when warrants are acquired through the global LME clearing system, the acquirer
has no control over the location of the metal subject to those warrants. First Lauer Decl., Ex. 5
(“Wilson Tr.”) at 114–15. If an acquirer does not want metal in a particular location, the acquirer
has the option to “put back” those warrants into the LME clearing system. Id. To the extent
GIAG obtained LME warrants for metal stored in the United States, company policy required
that GIAG never take possession of the metal, and GIAG always redelivered the warrants to the
LME or otherwise disposed of them before they were cancelled. Burton Decl. ¶ 16. At the time
of GIAG’s December 2011 swap agreement with J.P. Morgan, GIAG had an existing short
position in aluminum on the LME. Id. ¶ 17. GIAG delivered the warrants it received from J.P.
Morgan back into LME clearing to close out its short position, id., just as GIAG had told J.P.
Morgan it planned to do, First Lauer Decl., Ex. 1.
7

warrants it had acquired at Pacorini Vlissingen’s warehouses “in one clip,” in order to
re-warehouse the material at a Henry Bath facility in Rotterdam. Second Noss Decl., Ex. 16.
J.P. Morgan also could not sell the aluminum to third parties until after it had re-warehoused the
material at its own facility in Rotterdam. Id. Pacorini Vlissingen facilitated the transfer of J.P.
Morgan’s 500,000 tonnes of aluminum to Rotterdam by loading out 1,500 tonnes per day—the
LME minimum load-out requirement. Second Noss Decl., Ex. 17; see AC ¶ 7. This massive
cancellation of Vlissingen warrants and ensuing load-out of aluminum lengthened the delay
involved in taking delivery of aluminum from Vlissingen- and Rotterdam-based LME
warehouses, thus increasing the regional premium. See AC ¶ 7; Second Noss Decl., Ex. 16.
Fujifilm alleges that Pacorini Vlissingen participated at GIAG’s direction—despite its managing
director Simon Yntema’s characterizing the deal as “unacceptable” and “really pissing me off,”
Second Noss Decl., Ex. 19.10
2.

Communications with Other MDL Defendants

Fujifilm alleges that GIAG and Pacorini Vlissingen’s employees each communicated
with employees of the other MDL defendants concerning the storage of aluminum and
aluminum warrant cancellations in the United States and Europe. AC ¶¶ 60, 183–84, 216; First
Noss Decl., Ex. 1.
For example, on August 18, 2010, GIAG’s Robin Scheiner facilitated an agreement
involving Metro, Goldman Sachs, GIAG, Glencore Ltd., and other entities, pursuant to which
Glencore Ltd. agreed not to cancel warrants for 27,000 metric tons of aluminum stored at
Metro’s Detroit LME warehouse until October of that year. AC ¶ 216; First Noss Decl., Ex. 1.
10

Fujifilm also cites emails that refer to “Glencore” holding metal in LME warehouses in the
United States. See First Noss Decl., Ex. 6. However, documents produced by Pacorini USA
show that Glencore Ltd., not GIAG, was the “Glencore” entity that held the relevant metal. First
Lauer Decl., Ex. 2.
8

Scheiner directed Metro to “place [27,000 metric tons of previously cancelled aluminum] lots on
warrant with immediate effect in the name of Glencore [Ltd.].” First Noss Decl., Ex. 1.
Referring to a discussion that had occurred during a telephone conference “between our
Stamford office [i.e., Glencore Ltd.] and Scott Evans from Goldman [Sachs],” Scheiner
confirmed that Glencore entities would be reimbursed for costs “which we have paid for all the
metal we will not end up removing from your warehouse.” Id. Later that day, Matthew Lucke, a
Glencore Ltd. trader, responded to the email thread, confirming that, “[a]s part of the deal,”
Glencore Ltd. would continue to store the 27,000 metric tons at Metro’s warehouse for two
additional months. Id.
Fujifilm alleges that the August 2010 deal was part of a larger agreement between the
MDL defendants not to “destock” each other’s warehouses, AC ¶ 216, and that Scheiner’s
involvement was part of a larger pattern of Glencore Ltd.’s U.S.-based traders taking direction
from the “boys of zug”—i.e., GIAG traders based in Switzerland—on certain deals. Id. ¶ 62.
For example, in July 2010, a Pacorini Metals AG11 executive emailed, among others, Pacorini
Vlissingen’s Simon Yntema, recapping a meeting the executive had just left with top GIAG
officers regarding their plans for Glencore and Pacorini entities to create and maintain a “critical
mass” of tonnage in both Dutch and U.S. warehouses that would create a “bottleneck effect” in
those locations. First Noss Decl., Ex. 2. See also Second Noss Decl., Ex. 2 (June 2011 email to
executives at Pacorini Metals AG and Pacorini Vlissingen stating that “we need to speak to
Metro this week and tell them that we have turned down their metal [and] we expect them to do
the same”); id., Ex. 21 (January 2012 internal Metro email noting that an unspecified Pacorini

11

Pacorini Metals AG is a Swiss company and the parent of both Pacorini USA and Pacorini
Vlissingen. AC ¶ 66.
9

entity has “no desire to nitpick us in Detroit” and that an unspecified Glencore-Pacorini entity
“know[s] we would retaliate incrementally in some place like Vlissingen”).12
Fujifilm also notes that, during the relevant period, GIAG and Pacorini Vlissingen were
corporate affiliates of, and communicated with, both Glencore Ltd. and Pacorini USA. AC
¶¶ 61–63, 65–67; First Noss Decl., Exs. 4–8. Fujifilm cites several emails in which GIAG
personnel discuss with their counterparts at Glencore Ltd. or Pacorini USA the current aluminum
holdings and trading strategies of various entities, including those of competitors. See First Noss
Decl., Exs. 2, 4–8. Employees of Glencore Ltd. regularly consult with GIAG to obtain GIAG’s
knowledge of the global market. First Lauer Decl., Ex. 6 (deposition of Glencore Ltd. trader
Brian Brigham) (“[W]e talk to the guys at Glencore International and try to get their opinion
because those guys have more of a world view.”). Fujifilm does not allege that GIAG or
Pacorini Vlissingen failed to observe corporate formalities with or was an alter ego of any entity
that transacted business in the United States.
3.

Travel to the United States

In July 2013, GIAG’s Scheiner visited the United States. In connection with the trip,
Glencore Ltd. trader Patrick Wilson emailed Scheiner “to confirm the date for [Scheiner’s] visit
to [S]tamford, [Connecticut],” where Glencore Ltd. is headquartered, and to discuss changes that
had been made to the rules applicable to LME warehouses. First Noss Decl., Ex. 9.

12

As to this last email, GIAG and Pacorini Vlissingen here validly point out that the context—a
Metro employee discussing U.S. warehousing operations—makes it highly unlikely that either
company is the specific “Glencore” entity discussed in the email, given that neither has U.S.
operations. Rather, this email almost certainly refers to Pacorini USA or Glencore Ltd.
However, any “retaliat[ion]” in Vlissingen would necessarily have been directed at Pacorini
Vlissingen and/or GIAG—tending to support Fujifilm’s theory that GIAG and Pacorini
Vlissingen’s intended their activities to have effect across the Atlantic Ocean.
10

More notably, in November 2013, Pacorini Vlissingen manager Duncan Holterman
traveled to the United States, where he met with Pacorini USA personnel. See Second Noss
Decl., Ex. 6. Holterman visited to “to help the U.S. staff with the admin and the files
administration [sic] with regard to deliveries in and deliveries out.” Id., Ex. 7 (“Yntema Tr.”) at
54; see id., Ex. 6 (email from Pacorini USA employee suggesting Holterman visit to discuss:
“Inventory volume; volumes in/out; operations size; challenges that you have faced over the past
few years; what do you see happening in your business in the next few years”). Holterman, or
one of his colleagues, shared a “queue manager” spreadsheet, used as a logistical tool to manage
load-out of aluminum from warehouses, with Pacorini USA. Id., Exs. 3–5. Pacorini
Vlissingen’s Yntema testified that the “intention of [Holterman’s] trip” was “to help set up the
warehouse-specific queue manager” for Pacorini USA. Yntema Tr. at 56.13
4.

Other Conduct with Alleged Effects in the United States

Fujifilm further alleges that GIAG and Pacorini Vlissingen took actions in Europe that
affected the Rotterdam Premium, the regional benchmark used as a component of price for
aluminum purchased in Europe. Fujifilm purchased aluminum from third parties in Europe
subject to the Rotterdam Premium and imported that aluminum into the United States. AC ¶ 36.
Additionally, Fujifilm alleges that changes to the Rotterdam Premium affect the Midwest
Premium, and that GIAG and Pacorini Vlissingen were each aware of, and sought to take
advantage of, the alleged relationship between the two benchmarks. Fujifilm cites an email
conversation in which GIAG and Glencore Ltd. personnel discussed worldwide trading

13

Separately, Fujifilm notes that Yntema attended industry-wide conferences, which were also
attended by competitors of Pacorini Vlissingen, including some competitors based in the United
States. Yntema Tr. at 42. However, Yntema did not attend conferences in the United States; in
fact, he has not visited the United States on behalf of Pacorini Vlissingen since 2010, including
for industry conferences. Id. at 42–43.
11

strategies, the queues for loading out aluminum from Netherlands- and Detroit-based LME
warehouses, and the Rotterdam and Midwest Premiums. See First Noss. Decl., Exs. 10–11.14 In
particular, Glencore Ltd.’s Wilson emailed two GIAG traders regarding two points for
discussion: “our plans . . . for Vlissingen” and “what we think will happen to incentives as that
will have an impact on the Detroit queue and premiums.” Id., Ex. 10; Second Noss Decl., Ex. 8.
Wilson explained that, in asking about Vlissingen, he was “trying to get some information from
some of our global guys as to what’s going on in the global market.” Wilson Tr. at 318.
Similarly, Wilson testified that his comment about incentives and the Detroit queue and
premiums was intended to get information about whether competitor Metro was expected to
increase or decrease their incentives, not about a relationship between Dutch activity and the
Midwest Premium. Id. at 318–19.
Fujifilm also alleges that, in each year from 2010 to 2014, Pacorini Vlissingen, led by
managing director Yntema, rented and purchased additional warehouse space in Vlissingen.
Yntema Tr. at 28–29; see Second Noss Decl., Exs. 12–13. By August 2011, Vlissingen housed
the second largest concentration of LME aluminum after Detroit, Second Noss Decl., Ex. 15, and
by the end of 2012, Vlissingen had surpassed Detroit, id., Ex. 14. Fujifilm suggests that the
growth of Pacorini Vlissingen’s warehousing operations in the Netherlands had an impact in the
United States both due to the alleged relationships between the Rotterdam Premium and the
Midwest Premium and due to Fujifilm’s purchase of aluminum subject to the Rotterdam
Premium from third parties in Europe, which Fujifilm then imported into the United States. See
AC ¶ 36. Fujifilm cites an April 5, 2011 email from a U.K.-based consultant to Pacorini Metals

14

Fujifilm also relies on this email thread, between GIAG and Glencore Ltd. employees, to
establish Pacorini Vlissingen’s contacts with the United States. See Second Noss Decl., Ex. 8.
No Pacorini Vlissingen representatives were involved in the email thread.
12

AG to an employee of Pacorini USA—stating that, “we must monitor very closely the
developments from ‘both sides of the pond’”—as evidence that Pacorini Vlissingen intended its
actions in the Netherlands to impact the Midwest Premium in Detroit. Second Noss Decl.,
Ex. 20. Fujifilm further alleges that, in late June 2012, Pacorini USA began implementing a
queue management strategy based on that developed by Pacorini Vlissingen to manage
aluminum cancellations in Vlissingen. See id., Ex. 3.
Further, in a May 29, 2012 email, Yntema wrote that Vlissingen would “automatically
follow” if the LME mandated increased load-out rates in Detroit. See Yntema Tr. at 87–88.
Yntema explained that he thought that if the LME made a change to the warehouse load-out rules
in Detroit, it would make similar changes in Vlissingen. Id. at 88.
Fujifilm also cites Pacorini Vlissingen’s communications with employees of aluminum
producer Alcoa, Inc., and with metals traders from Mitsubishi and Goldman Sachs regarding the
storage of aluminum in the United States and Europe. In September 2013, Yntema was
“approached” by Alcoa regarding the Pacorini Vlissingen’s storage of Alcoa metal in
“Rotterdam/Antwerp.” Second Noss. Decl., Ex. 26. That metal would have been sourced “from
Brazil,” but the deal was never consummated. Yntema Tr. at 125. In May 2012, Glencore Ltd.
trader Lucke sold a New York-based Mitsubishi trader aluminum that was then stored at a
Vlissingen warehouse. Second Noss. Decl., Ex. 25.
As to the storage of Goldman Sachs metal, Fujifilm cites three sets of emails. In the first,
Pacorini USA’s Mario Casciano communicated with a New York-based Goldman Sachs trader
with whom he was familiar about storing in Vlissingen 13,000 tonnes of aluminum shipped from
Canada. Second Noss Decl., Exs. 27–28; Yntema Tr. at 104, 124. Casciano then “handed [the
deal] over to [Pacorini Vlissingen].” Yntema Tr. at 105. In the second, Yntema and a New

13

York-based Goldman Sachs employee discussed shipping metal from Vlissingen to Rotterdam.
Second Noss Decl., Ex. 29. In the third, Yntema contacted Pacorini USA personnel about trying
to secure, for Pacorini USA’s Baltimore warehouse, aluminum that Goldman Sachs planned to
move from Vlissingen to Baltimore. Id., Ex. 30; see Yntema Tr. at 114 (testifying that if
Goldman is moving metal from Vlissingen to Baltimore, “it’s normal that we try to get our hands
on it, if Pacorini [USA], in Baltimore, to store it on behalf of Goldman Sachs”). Yntema
explained that sometimes Pacorini Vlissingen’s clients “required . . . storage space in Baltimore,
and then if they have these questions, I can pass these on to our colleagues in Baltimore.”
Yntema Tr. at 47–48.15
D.

Procedural Posture
1.

Relevant MDL Developments

In December 2013, this MDL was transferred to the Southern District of New York for
consolidated or coordinated pretrial proceedings. No. 13 MD 2481, Dkt. 1. In March 2015,
Judge Forrest, who previously presided over this MDL, issued four decisions resolving the
second round of motions to dismiss filed by defendants in the MDL. See No. 13 MD 2481,
Dkts. 728–29, 731, 733. Of these, Judge Forrest’s March 4, 2015 Opinion and Order dismissed
the claims against three parent or affiliated corporations—The Goldman Sachs Group, Inc.,
J.P. Morgan Chase & Co., and Pacorini Metals AG—and denied the then-existing MDL
plaintiffs’ motions for leave to amend their complaints to the extent they sought to join GIAG,
among others, as a defendant. In re Aluminum Warehousing Antitrust Litig., No. 13 MD 2481

15

Fujifilm also alleges that, in 2012, Yntema communicated with Pacorini Metals AG CEO Peter
Waszkis regarding the transportation of zinc from Pacorini Vlissingen to Pacorini USA in New
Orleans. Second Noss Decl., Ex. 24.
14

(KBF), 2015 WL 1344429, at *3 (S.D.N.Y. Mar. 23, 2015); see also No. 13 MD 2481, Dkt. 776
(stipulation and order concerning dismissed parties and claims).
More than seven months later, on October 21, 2015, Fujifilm, represented by the same
counsel who represent the earlier-filing individual plaintiffs, filed its initial complaint. Dkt. 1.
On February 4, 2016, after receiving access to the discovery record, Fujifilm filed an amended
complaint as-of-right, which added new allegations and added GIAG and Pacorini Vlissingen,
among others, as parties. See AC. On February 19 and February 23, 2016, the existing MDL
plaintiffs moved for leave to file amended complaints that added the same parties and tracked the
allegations of Fujifilm’s AC, including allegations relating to the Rotterdam Premium.
No. 13 MD 2481, Dkts. 887, 891. On April 25, 2016, Judge Forrest denied these motions due to
those plaintiffs’ failure to show good cause for their delay in seeking amendment, thus
preventing the other MDL plaintiffs from adding GIAG and Pacorini Vlissingen as defendants or
adding conspiracy allegations regarding manipulation of the Rotterdam Premium. In re
Aluminum Warehousing Antitrust Litig., No. 13 MD 2481 (KBF), 2016 WL 1629350
(S.D.N.Y. Apr. 25, 2016); see id. at *8 (“The Court’s denial of [the pre-Fujifilm] plaintiffs’
motions for leave to amend will create a disparity between the allegations in Fujifilm’s Amended
Complaint on the one hand and the [other plaintiffs’ operative complaints] on the other. In light
of how we have reached that disparity, however, the Court believes the most equitable and
efficient course is to proceed with two different operative case theories in two parallel tracks.”).
On September 24, 2019, the Judicial Panel on Multi-District Litigation reassigned the
MDL to this Court, following the Second Circuit’s August 27, 2019 decision reversing Judge
Forrest’s grant of summary judgment to defendants on grounds not relevant here. See
No. 13 MD 2481, Dkt. 1142.

15

2.

GIAG and Pacorini Vlissingen’s Motions

On May 31, 2016, GIAG filed its motion to dismiss the AC for lack of personal
jurisdiction, Dkt. 83, the declaration of John Burton, Burton Decl., and a brief in support of the
motion, Dkt. 85. On June 30, 2016, Fujifilm filed its opposition to GIAG’s motion, Dkt. 121
(“Pl. GIAG Opp.”), and the first declaration of Walter Noss, Esq., First Noss Decl., and exhibits
attached thereto. On July 1, 2016, GIAG filed its reply, Dkt. 109 (“GIAG Reply”), as well as the
first declaration of Eliot Lauer, Esq., First Lauer Decl., and exhibits attached thereto.
On June 23, 2016, Pacorini Vlissingen filed its motion to dismiss the AC for lack of
personal jurisdiction, Dkt. 94, the declaration of Debby Dutour Geerling, Geerling Decl., and a
brief in support of the motion, Dkt. 96. On August 3, 2016, Fujifilm filed its opposition to the
motion, Dkt. 124 (“Pl. PV Opp.”), and the second declaration of Walter Noss, Esq., Second Noss
Decl., and exhibits attached thereto. On August 15, 2016, Pacorini Vlissingen filed its reply,
Dkt. 126 (“PV Reply”), as well as the second declaration of Eliot Lauer, Esq., Second Lauer
Decl., and exhibits attached thereto.16
II.

Applicable Legal Standards
“[T]he plaintiff bears the burden of establishing that the court has jurisdiction over the

defendant.” DiStefano, 286 F.3d at 84; see also In re Terrorist Attacks on Sept. 11, 2001,
714 F.3d 659, 673 (2d Cir. 2013). “[T]he showing a plaintiff must make to defeat a defendant’s
claim that the court lacks personal jurisdiction over it ‘varies depending on the procedural
posture of the litigation.’” Dorchester Fin. Sec., Inc. v. Banco BRJ, S.A., 722 F.3d 81, 84

16

On April 14, 2020, the Court requested that the parties re-file each of these submissions in
light of challenges presented by the COVID-19 pandemic, as well as the District’s upgraded
technological capacity (and the Court’s correspondingly updated Individual Rules) relating to the
electronic filing of documents under seal. Dkt. 171. On April 17, 2020, the parties re-filed the
documents. See Dkts. 172–81.
16

(2d Cir. 2013) (quoting Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197
(2d Cir. 1990)). “Each defendant’s contacts with the forum . . . must be assessed individually.”
Calder v. Jones, 465 U.S. 783, 790 (1984) (citation omitted).
“Where, as here, a district court in adjudicating a motion pursuant to Federal Rule of
Civil Procedure 12(b)(2) ‘relies on the pleadings and affidavits, and chooses not to conduct a
full-blown evidentiary hearing, plaintiffs need only make a prima facie showing of personal
jurisdiction.’” S. New Eng. Tel. Co. v. Glob. NAPs Inc., 624 F.3d 123, 138 (2d Cir. 2010)
(quoting Porina v. Marward Shipping Co., 521 F.3d 122, 126 (2d Cir. 2008)). “This showing
may be made through the plaintiff’s ‘own affidavits and supporting materials, containing an
averment of facts that, if credited, would suffice to establish jurisdiction over the defendant.’”
Id. (quoting Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 208 (2d Cir. 2001)). The Court
“construe[s] the pleadings and affidavits in the light most favorable to plaintiffs, resolving all
doubts in their favor.” Dorchester, 722 F.3d at 85 (quoting S. New Eng. Tel., 624 F.3d at 138);
see also A.I. Trade Fin., Inc. v. Petra Bank, 989 F.2d 76, 79–80 (2d Cir. 1993). Nevertheless,
the Court “will not draw argumentative inferences in the plaintiff’s favor” and need not “accept
as true a legal conclusion couched as a factual allegation.” In re Terrorist Attacks, 714 F.3d
at 673 (citations omitted); Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 673 F.3d 50, 59
(2d Cir. 2012).
III.

Discussion
The Court first addresses the legal principles governing personal jurisdiction over

defendants such as GIAG and Pacorini Vlissingen, and then analyzes the jurisdictional
allegations as to each defendant.

17

A.

Applicable Legal Principles Governing Personal Jurisdiction

To make out a prima facie case of personal jurisdiction, whether based on general or
specific personal jurisdiction, a plaintiff must establish both “a statutory basis” for jurisdiction
and that the exercise of such jurisdiction accords “with constitutional due process principles.”
Cortlandt St. Recovery Corp. v. Deutsche Bank AG, No. 14 Civ. 01568 (JPO), 2015 WL 5091170,
at *2 (S.D.N.Y. Aug. 28, 2015) (quoting Reich v. Lopez, 38 F. Supp. 3d 436, 454
(S.D.N.Y. 2014)).17
Fujifilm asserts that Federal Rule of Civil Procedure 4(k)(2) provides a statutory basis for
the Court to exercise personal jurisdiction over GIAG and Pacorini Vlissingen. Rule 4(k)(2)
provides that:
For a claim that arises under federal law, serving a summons or filing a waiver of
service establishes personal jurisdiction over a defendant if: (A) the defendant is
not subject to jurisdiction in any state’s courts of general jurisdiction; and (B)
exercising jurisdiction is consistent with the United States Constitution and laws.
Fed. R. Civ. P. 4(k)(2); see Hartford Fire Ins. v. Co., No. 03 Civ. 2196 (SAS),
2003 WL 22990090, at *3 (S.D.N.Y. Dec. 18, 2003) (Rule 4(k)(2) allows courts to exercise
personal jurisdiction if “(1) that plaintiff’s cause of action arise[s] under the federal law; (2) that
the defendant is not subject to the jurisdiction of the courts of general jurisdiction of any one
State; and (3) that the defendant’s total contacts with the United States as a whole are sufficient
to confer the court with personal jurisdiction without offending due process” (quoting Aerogroup
Int’l, Inc. v. Marlboro Footworks, Ltd., 956 F. Supp. 427, 434 (S.D.N.Y. 1996)).

17

Procedurally proper service of process is also a prerequisite to the exercise of personal
jurisdiction, but no party challenges service here. See Licci, 673 F.3d at 59–60 (listing three
requirements for personal jurisdiction: (1) the entity must have been properly served; (2) the
court must have a statutory basis for exercising personal jurisdiction; and (3) the exercise of
personal jurisdiction must comport with constitutional due process).
18

This rule “extends the reach of federal courts to impose jurisdiction over the person of all
defendants against whom federal law claims are made and who can be constitutionally subjected
to the jurisdiction of the courts of the United States.” Chew v. Dietrich, 143 F.3d 24, 27
(2d Cir. 1998) (quoting Fed. R. Civ. P. 4 advisory committee’s note to 1993 amendment). As the
Second Circuit explained:
Rule 4(k)(2) was specifically designed to “correct[ ] a gap” in the enforcement of
federal law in international cases. The gap arose from the general rule that a federal
district court’s personal jurisdiction extends only as far as that of a state court in
the state where the federal court sits . . . . The pre-1993 Rules, the Advisory
Committee noted, left a significant lacuna “when the defendant was a non-resident
of the United States having contacts with the United States sufficient to justify the
application of United States law and to satisfy federal standards of forum selection,
but having insufficient contact with any single state to support jurisdiction under
state long-arm legislation or meet the requirements of the Fourteenth Amendment
limitation on state court territorial jurisdiction.”
Porina, 521 F.3d at 126–27 (2d Cir. 2008) (alterations in original) (citing Fed R. Civ. P. 4
advisory committee’s note to 1993 amendment). Rule 4(k)(2) thus “fill[s] a gap in the
enforcement of federal law for courts to exercise personal jurisdiction over defendants with
sufficient contacts with the United States generally, but insufficient contacts with any one state
in particular.” In re Terrorist Attacks on Sept. 11, 2001, 349 F. Supp. 2d 765, 807
(S.D.N.Y. 2005) (internal quotation marks and citation omitted).
It is undisputed that Fujifilm’s sole cause of action, under § 1 of the Sherman Act, arises
under federal law, and that GIAG and Pacorini Vlissingen are not subject to the jurisdiction of
the courts of general jurisdiction of any one state. GIAG Reply at 1–2 (“As neither party
disputes that GIAG is not subject to jurisdiction in any state’s courts, the relevant inquiry turns
on whether the Court’s exercise of Rule 4(k)(2) jurisdiction comports with due process.”); see

19

PV Reply (addressing only due process analysis under Rule 4(k)(2)).18 Accordingly, the relevant
inquiry here, for both statutory and constitutional purposes, is whether the Court’s exercise of
jurisdiction pursuant to Rule 4(k)(2) comports with due process.
The constitutional due process inquiry has two steps. The Court must determine, first,
whether the defendant has sufficient minimum contacts with the forum, and, if so, second,
whether the exercise of personal jurisdiction comports with “traditional notions of fair play and
substantial justice.” Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 567–68
(2d Cir. 1996) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). In determining
whether the exercise of personal jurisdiction pursuant to Rule 4(k)(2) comports with due process,
the relevant forum for assessing minimum contacts is the United States as a whole. Porina,
521 F.3d at 127; In re Aluminum Warehousing Antitrust Litig., No. 13 MD 2481 (KBF),
2015 WL 6472656, at *6 (S.D.N.Y. Oct. 23, 2015).
The nature of the minimum contacts inquiry turns on whether the plaintiff pursues a
theory of general jurisdiction or specific personal jurisdiction. Porina, 521 F.3d at 127–28. A
court may have general jurisdiction over a non-resident defendant based upon a defendant’s
“continuous and systematic general business contacts” to the forum state; in such circumstances,
a court may exercise personal jurisdiction over a defendant in a suit unrelated to the defendant’s

18

Fujifilm suggests in passing that New York’s long-arm statute, N.Y. C.P.L.R. § 302(a), could
provide an alternative statutory basis for the exercise of personal jurisdiction. See Pl. GIAG
Opp. at 13; Pl. PV Opp. at 11. Fujifilm argues that this Court’s status as an MDL transferee
court would allow it to consider and find—under New York’s long-arm statute—that the moving
defendants’ contacts with the United States as a whole justified exercise of personal jurisdiction.
See id. (citing In re Auto. Parts Litig., No. 12 MD 2311 (MOB), 2015 WL 897857, at *4
(E.D. Mich. Mar. 2, 2015) (“[I]n multidistrict cases the United States serves as the appropriate
forum for analyzing jurisdictional contacts, not the venue selected by the panel.”)). The Court
need not address this unbriefed argument, in light of its finding, developed below, that an
adequate factual basis for personal jurisdiction exists under Rule 4(k)(2), which all parties agreed
supplies the proper test for personal jurisdiction in this case.
20

contacts with the state. Metro Life Ins., 84 F.3d at 567–68 (quoting Helicopteros Nacionales de
Colom., S.A. v. Hall, 466 U.S. 408, 416 (1984)); see also Goodyear Dunlop Tires Operations,
S.A. v. Brown, 564 U.S. 915, 919 (2011). A court may have specific personal jurisdiction based
on the defendant’s contacts with the forum related to the particular lawsuit. Porina, 521 F.3d
at 128 (citing Helicopteros, 466 U.S. at 414 n.8). That is, specific personal jurisdiction subjects
a defendant to suits on only those claims that arise from the defendant’s conduct in the forum.
Cortlandt, 2015 WL 5091170, at *2; see also Daimler AG v. Bauman, 571 U.S. 117, 126 (2014).
Here, Fujifilm pursues solely a theory of specific personal jurisdiction.
In assessing a defendant’s minimum contacts, a court evaluates the “quality and nature”
of the defendant’s contacts. Best Van Lines, Inc. v. Walker, 490 F.3d 239, 242 (2d Cir. 2007)
(quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)).19 The Court considers
these contacts in totality, with the crucial question being whether the defendant has “purposefully
avail[ed] itself of the privilege of conducting activities within the forum State, thus invoking the
benefits and protections of its laws” such that the defendant “should reasonably anticipate being
haled into court there.” Id. (quoting Burger King, 471 U.S. at 474–75). The inquiry “focuses on
‘the relationship among the defendant, the forum, and the litigation.’” Walden v. Fiore,
571 U.S. 277, 284 (2014) (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 775 (1984)).
The defendant’s conduct in the lawsuit must create a “substantial connection” with the forum.
Id. In evaluating this connection, the Court considers the contacts that the “defendant himself
creates with the forum,” not the plaintiff’s connections to the forum. Id. (emphasis in original)

19

In the Rule 4(k)(2) context, a foreign corporation may satisfy the minimum contacts test by:
(1) transacting business in the United States, (2) doing an act in the United States, or (3) having
an effect in the United States by an act done elsewhere. Norvel Ltd. v. Ulstein Propeller AS, 161
F. Supp. 2d 190, 206 (S.D.N.Y. 2001) (quoting Eskofot A/S v. E.I. du Pont de Nemours & Co.,
872 F. Supp. 81, 87 (S.D.N.Y. 1995)).
21

(citing Burger King, 471 U.S. at 475). These due process limits on personal jurisdiction
“principally protect the liberty of the nonresident defendant—not the convenience of plaintiffs or
third parties.” Id. (citing Worldwide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291–92
(1980)). They require, overall, “that a defendant be haled into a court in a forum . . . based on
his own affiliation with the [forum], not based on the ‘random, fortuitous, or attenuated’ contacts
he makes by interacting with other persons affiliated with the [forum].” Id. at 286 (quoting
Burger King, 471 U.S. at 475).
Specific jurisdiction over a foreign defendant may also exist even if the relevant conduct
took place entirely outside the forum. Under the so-called “effects test,” personal jurisdiction is
“typically invoked where . . . the conduct that forms the basis for the controversy occurs entirely
out-of-forum, and the only relevant jurisdictional contacts with the forum are therefore in-forum
effects harmful to the plaintiff.” Licci, 732 F.3d at 173; see also Best Van Lines, 490 F.3d at 243
(“in-state effects of out-of-state activity” is one of multiple “independent, if conceptually
overlapping, methods of demonstrating minimum contacts”). For such claims, “the exercise of
personal jurisdiction may be constitutionally permissible if the defendant expressly aimed its
conduct at the forum.” Licci, 732 F.3d at 173 (citing Calder v. Jones, 465 U.S. 783, 789 (1983)).
However, the mere “fact that harm in the forum is foreseeable . . . is insufficient for the purpose
of establishing specific personal jurisdiction over a defendant.” Waldman v. Palestinian
Liberation Org., 835 F.3d 317, 339 (2d Cir. 2016) (quoting In re Terrorist Attacks, 714 F.3d
at 674).
Once a plaintiff demonstrates the required minimum contacts between the defendant and
the forum, the Court then assesses the reasonableness of exercising personal jurisdiction over the
defendant, i.e., whether the exercise of jurisdiction comports with “traditional notions of fair play

22

and substantial justice.” Metro. Life Ins. Co., 84 F.3d at 568 (citation omitted); see also Burger
King, 471 U.S. at 476 (“[o]nce it has been that a defendant purposefully established minimum
contacts within the forum,” the Court may consider the contacts in light of the reasonableness
factors). The Second Circuit has set out a five-factor test for this “reasonableness” analysis: “(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; (4) the interstate judicial system’s interest in obtaining the most efficient
resolution of the controversy; and (5) the shared interest of the states in furthering substantive
social policies.” Chloe v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158, 173 (2d Cir. 2010)
(citing Asahi Metal Indus. Co. v. Superior Court of Cal., 480 U.S. 102, 113–14 (1987)).
“[W]here a defendant who purposefully has directed his activities at forum residents seeks to
defeat jurisdiction, he must present a compelling case that the presence of some other
considerations would render jurisdiction unreasonable.” Burger King, 471 U.S. at 477; see also
Chloe, 616 F.3d at 165.
The Court therefore first assesses whether each moving defendant has sufficient
minimum contacts with the United States, Porina, 521 F.3d at 127, and then considers whether
exercising jurisdiction would be reasonable, Chloe, 616 F.3d at 173.
B.

GIAG Had Sufficient Minimum Contacts with the United States

GIAG engaged in sufficient relevant conduct within and directed at the United States to
establish the requisite minimum contacts for the exercise of personal jurisdiction.
Although GIAG is headquartered overseas, lacks offices or employees in the United
States, and does not regularly conduct business here, the totality of Fujifilm’s allegations and
evidence require the conclusion that senior GIAG executives and traders actively coordinated

23

and participated in the alleged U.S. conduct from which Fujifilm’s Sherman Act claim arises.20
Three episodes highlighted by Fujifilm are particularly salient.
First, a July 9, 2010 email recounting a meeting between top executives from GIAG and
Pacorini Metals AG demonstrates GIAG’s keen interest in the U.S. aluminum market and
suggests that other Glencore-Pacorini entities, including U.S. subsidiaries, took direction from
GIAG in organizing their U.S. activities. At the meeting, GIAG’s chief aluminum executive
expressed his interest in “emulat[ing] . . . Detroit in NOLA [New Orleans]”—which would
require “getting critical mass” of aluminum into Pacorini USA’s warehouse in New Orleans.
First Noss. Decl., Ex. 2 at 4–5. The trans-Atlantic directive from GIAG was clear: “Lock up
[aluminum in LME warehouses] and then once the full critical mass is in both locations
[Vlissingen and New Orleans] look at unlocking – or not.” Id. at 5. One week later, in an email
with the subject line “Million Tons,” the Pacorini Metals AG executive reported that the same
GIAG aluminum executive wished to have “the whole million tons” of aluminum moved to New
Orleans because “the million added to the 400k [tons that Pacorini USA already had] there
would beautifully empower the bottle neck effect.” First Noss Decl., Ex. 3.
Second, in August 2010, GIAG’s Robin Scheiner brokered a deal with representatives of
Glencore Ltd., Metro, Goldman Sachs, and other entities that ensured Glencore Ltd. would
continue to store 27,000 metric tons of aluminum at Metro’s Detroit warehouse through October
of that year. Participating by email and phone, Scheiner took a lead role in working out the
details of the agreement not to remove the aluminum Metro’s warehouse. Although Metro re-

20

For the avoidance of doubt, the Court does not address whether defendants’ conduct in
aluminum financial markets did, as alleged, have anticompetitive effects in the market for
primary aluminum in which Fujifilm was a purchaser.
24

warranted the metal “in the name of Glencore [Ltd.],” they did in response to Scheiner’s explicit
direction. First Noss Decl., Ex. 1.
Third, as part of the December 2011 aluminum swap with J.P. Morgan, GIAG received
warrants for approximately 860,000 tonnes of aluminum, representing about one-sixth of all
LME aluminum worldwide, located in Metro’s LME-certified warehouse in Detroit. AC ¶¶ 16,
65, 231–34. The negotiation and execution of the swap involved additional entities in the United
States and Europe, including Glencore Ltd. and Pacorini Vlissingen. See id.; Second Noss Decl.,
Exs. 16–17. GIAG was far from a passive participant, allegedly pushing ahead with the swap
through despite the protestations of Pacorini Vlissingen managing director Yntema, who viewed
the deal as “unacceptable.” Second Noss Decl., Ex. 19. To counter this, GIAG has submitted a
declaration to the effect that company policy required that GIAG not take possession of physical
metal in the United States, and has noted its trader’s testimony that, in general, an acquirer of
LME warrants has no control over the location of the metal subject to those warrants. See
Burton Decl. ¶ 16; Wilson Tr. at 114–15. But those submissions are not fully responsive to
Fujifilm’s showing. As to the company policy, the issues here are not merely whether GIAG
took physical possession of the aluminum associated with the LME warrants it acquired—
indeed, vanishingly few LME transactions ever result in the acquirer taking delivery of metal—
but also whether GIAG acquired the rights to such U.S.-based metal, which it did. And, as to an
LME-trader’s general lack of control over the location of the metal associated with warrants
acquired through the global LME clearing system, the terms of the agreed-upon swap made clear
that the “warrant quantity delivered by JP Morgan” would be over 860,000 tonnes of “Detroit
LME Warrants.” Second Noss Decl., Ex. 16 (emphasis added). In other words, GIAG appears

25

to have had uncommon advance notice and control over the location of the metal for which it
received warrants pursuant to the swap—and that metal was stored in Detroit.
Each of these incidents, at least as revealed by the materials before the Court, reflect
senior GIAG executives and traders purposefully availing themselves of the privilege of
conducting activities in the United States. They are not fairly cast as mere “‘random, fortuitous,
or attenuated’ contacts [made] by interacting with other persons affiliated with the” United
States. See Walden, 571 U.S. at 286 (quoting Burger King, 471 U.S. at 475).21 Fujifilm’s
allegations and declarations support its depiction of GIAG as a driving force behind these
U.S.-centered aluminum transactions, not as merely a foreign affiliate of Glencore Ltd. GIAG
engaged in transactions with U.S. counterparties involving massive quantities of U.S.-based
aluminum, stored in Detroit and New Orleans warehouses by U.S. entities, and allegedly directed
at impacting the price of aluminum for U.S. buyers. And, while GIAG largely lacked a physical
presence in the United States, “a defendant’s physical absence from a forum is insufficient to
defeat personal jurisdiction.” S.E.C. v. Straub, 921 F. Supp. 2d 244, 254 (S.D.N.Y. 2013) (citing
Burger King, 471 U.S. at 475); cf. In re Aluminum Warehousing Antitrust Litig.,
2015 WL 6472656, at *12 (“[W]hile Burgess-Allen may have physically operated entirely within

21

The three highlighted transactions constitute acts of “purposeful availment,” that is, acts by
which “the defendant purposefully availed itself of the privilege of doing business in the forum
and could foresee being haled into court there.” Licci, 732 F.3d at 170 (citation omitted). This
method of demonstrating minimum contacts—based on GIAG’s choreography of transactions in
the United States—is “independent, if conceptually overlapping,” Best Van Lines, 490 F.3d
at 243, with the “effects” or “purposeful direction” test, which inquires whether “the defendant
took intentional, and allegedly tortious, actions expressly aimed at the forum.” In re Terrorist
Attacks, 714 F.3d at 674; see Sonterra Capital Master Fund Ltd. v. Credit Suisse Grp. AG,
277 F. Supp. 3d 521, 589 (S.D.N.Y. 2017). While GIAG’s conduct, in totality, would likely
satisfy the “effects” test, too, the Court need not definitely resolve this question, having found
Fujifilm’s showing sufficient to satisfy the “purposeful availment” test. See Chloe, 616 F.3d
at 172.
26

the United Kingdom and . . . generally dealt with customers of Metro located in London and
Europe, he was also responsible for devising . . . a subset of the antitrust conspiracy alleged . . . ,
[which] contemplated that significant effects would occur in the aluminum market in the United
States.”).
The exercise of specific jurisdiction over GIAG in this case, measured by the standards
applicable at this stage, thus comports with principles of due process. See, e.g., Peterson v.
Islamic Republic of Iran, No. 10 Civ. 4518 (KBF), 2013 WL 1155576, at *16–18
(S.D.N.Y. Mar. 13, 2013) (minimum contacts satisfied primarily by defendant’s “actions with
respect to the bonds,” which were based in New York, even though “the structure of the
transaction did not cause [defendant] to send personnel into New York”); cf. In re Amaranth Nat.
Gas Commodities Litig., 587 F. Supp. 2d 513, 536 (S.D.N.Y. 2008) (personal jurisdiction existed
over foreign defendant based on allegations that defendant who manipulated New York
Mercantile Exchange futures prices did so with knowledge that “trades would affect the price of
natural gas futures within the United States,” thus “constitut[ing] purposeful availment of the
United States” (citations omitted)). GIAG’s “suit-related conduct”—namely its negotiation and
execution of significant U.S.-based aluminum transactions in its own name and in the name of
Glencore Ltd., which transactions allegedly contributed to increases in prices paid by Fujifilm—
created a sufficiently “substantial” connection with the United States to justify the exercise of
specific jurisdiction under the Due Process Clause. See Walden, 571 U.S. at 284; Newmont
Mining Corp. v. AngloGold Ashanti Ltd., 344 F. Supp. 3d 724, 742 (S.D.N.Y. 2018).
C.

Pacorini Vlissingen Had Sufficient Minimum Contacts with the United States

Pacorini Vlissingen also engaged in sufficient relevant conduct within and directed at the
United States to establish the requisite minimum contacts for the exercise of personal
jurisdiction.
27

Like GIAG, Pacorini Vlissingen played a role in both the December 2011 swap between
GIAG and J.P. Morgan and the July 2010 Pacorini-Glencore efforts to create a critical mass of
aluminum in Vlissingen and New Orleans. See AC ¶ 7; First Noss Decl., Ex. 2; Second Noss
Decl., Exs. 16–17, 19. Further, the ostensible partition between Pacorini USA and Pacorini
Vlissingen with respect to U.S. business activities was less definitive than Pacorini Vlissingen
suggests. For example, Pacorini USA’s Mario Casciano negotiated with a New York-based
Goldman Sachs trader to store in Pacorini Vlissingen’s Dutch warehouses 13,000 tonnes of
aluminum being shipped from Canada, Second Noss Decl., Exs. 27–28, and, in turn, Pacorini
Vlissingen’s Yntema, upon finding out that Goldman Sachs intended to move significant
quantities of aluminum from Vlissingen to Baltimore, contacted Casciano and senior executives
of Pacorini Metals AG, advising that “[i]f this would go to Baltimore, we should try to get our
hands on it,” id., Ex. 30.
The case for sustaining personal jurisdiction against Pacorini Vlissingen is, if anything,
stronger than that for GIAG. Most notably, Duncan Holterman, in his 2013 trip to visit the
United States on behalf of Pacorini Vlissingen, engaged in significant suit-related conduct.
Resolving all doubts in Fujifilm’s favor, Holterman visited Pacorini USA facilities and met with
Pacorini USA personnel, for the alleged purpose of improving Pacorini USA’s techniques for
loading out the bare minimum of aluminum allowed by LME rules. Id., Exs. 6–7. For this
purpose, Holterman, or one of his Pacorini Vlissingen colleagues, shared a “queue manager”
spreadsheet, which Pacorini USA warehouses later used to organize their load-outs. Id., Exs. 3–5;
see also Yntema Tr. at 56 (the “intention of [Holterman’s] trip” was “to help set up the
warehouse-specific queue manager” for Pacorini USA). To be sure, Pacorini Vlissingen’s
declarations permit the inference that Holterman’s trip served a purely administrative purpose.

28

But, viewed in the light most favorable to Fujifilm, Holterman’s trip constitutes substantial
activity on U.S. soil furthering defendants’ alleged antitrust conspiracy.22 A foreign company
could reasonably foresee being haled into U.S. court as a result of such activity. Holterman’s
trip, viewed in light of the totality of the jurisdictional allegations against Pacorini Vlissingen,
thus justifies the exercise of personal jurisdiction here. See, e.g., Norvel, 161 F. Supp. 2d at 206
(foreign defendant that attended limited meetings in, and shipped goods to, the United States
“has either transacted business or performed an act in the United States sufficient to satisfy the
minimum contacts analysis” under Rule 4(k)(2)).23

22

For avoidance of doubt, as with GIAG, the Court’s conclusion to this effect in denying a Rule
12(b)(2) motion does not require, and is not, a finding that the Pacorini warehouses’ load-out rate
bespoke anticompetitive activity, or that treating the LME-mandated minimum load-out rate as a
maximum was inconsistent with independent, profit-maximizing activity.
23

Although the AC asserts personal jurisdiction in part based on “the conspiracy described
herein,” AC ¶ 31, plaintiffs’ briefs did not pursue the claim that personal jurisdiction could be
found here based on co-conspirators’ contacts with the United States. At the time of the parties’
briefing, the continuing vitality of the doctrine of conspiracy jurisdiction had come into question.
See, e.g., Tymoshenko v. Firtash, No. 11 Civ. 2794 (KMW), 2013 WL 1234943, at *2–4
(S.D.N.Y. Mar. 27, 2013) (stating that conspiracy jurisdiction “has been widely criticized by
courts and scholars” and declining to consider co-conspirators’ contacts for the purpose of
establishing personal jurisdiction over a foreign defendant). In 2018, however, the Second
Circuit clarified this question, articulating a three-part test for finding minimum contacts on the
basis of “conspiracy jurisdiction.” Charles Schwab Corp. v. Bank of Am. Corp., 883 F.3d 68, 87
(2d Cir. 2018). Under Schwab, “the plaintiff must 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.” Id. But see, e.g., In re LIBOR-Based Fin. Instruments Antitrust Litig.,
2019 WL 1331830, at *10–16 (S.D.N.Y. Mar 25, 2019) (on remand from Schwab, engaging in
extensive analysis of the merits of the alleged conspiracy and concluding that the court lacked
conspiracy jurisdiction); In re SSA Bonds Antitrust Litig., 420 F. Supp. 3d 219, 236–39
(S.D.N.Y. 2019). Having independently found personal jurisdiction over GIAG and Pacorini
Vlissingen, the Court has no occasion to resolve whether the Schwab test is met here. It suffices
to note that Fujifilm’s allegations with respect to the conduct of these entities’ conspirators, if
considered, would tend to fortify the finding of personal jurisdiction.
29

D.

Exercising Jurisdiction over GIAG and Pacorini Vlissingen Is Reasonable

Having found that GIAG and Pacorini Vlissingen each had sufficient contacts with the
United States, the Court assesses the reasonableness of exercising personal jurisdiction over each
defendant based on consideration of: (1) the burden imposed on the defendant; (2) the interests
of the forum in adjudicating the case; (3) the plaintiff’s interest in obtaining convenient and
effective relief; (4) the interstate judicial system’s interest in obtaining the most efficient
resolution of the controversy; and (5) the shared interest of the states in furthering substantive
social policies. See Chloe, 616 F.3d at 173 (citing Asahi Metal, 480 U.S. at 113–14). “While the
exercise of jurisdiction is favored where the plaintiff has made a threshold showing of minimum
contacts at the first stage of the inquiry, it may be defeated where the defendant presents ‘a
compelling case that the presence of some other considerations would render jurisdiction
unreasonable.’” Id. at 165 (quoting Burger King, 471 U.S. at 477). Notably, neither GIAG nor
Pacorini Vlissingen has argued that exercising jurisdiction would be unreasonable if the Court
found sufficient minimum contacts. The Court, too, does not find such exercise unreasonable.
As to the first factor, although the exercise of jurisdiction may impose some burden on
GIAG and Pacorini Vlissingen, that factor does not weigh heavily both “in light of the
conveniences of modern communication and transportation,” In re Aluminum Warehousing
Litig., 2015 WL 6472656, at *13 (citing Chloe, 616 F.3d at 173), and because each party’s
affiliates are already deeply enmeshed in this litigation. As to the second, the United States has a
substantial interest in adjudicating this case, given the allegedly significant effects that the
alleged conspiracy had on the aluminum market in the United States. Id. With regard to the
third and fourth, Fujifilm, a U.S. entity, is already litigating its claims against many of GIAG and
Pacorini Vlissingen’s alleged co-conspirators in this forum, and the exercise of jurisdiction over

30

GIAG and Pacorini Vlissingen would allow for the most efficient resolution of these claims. Id.
And the fifth here is, at most, neutral. See id.
Accordingly, having found that Fujifilm has made a prima facie showing that GIAG and
Pacorini Vlissingen had sufficient minimum contacts with the United States, and upon
consideration of the reasonableness factors, the Court holds that the exercise of personal
jurisdiction over GIAG and Pacorini Vlissingen comports with traditional notions of fair play
and substantial justice. See Chloe, 616 F.3d at 173 (finding reasonableness inquiry satisfied and
vacating district court’s dismissal of out-of-forum defendant where first factor favored
defendant, second and third favored plaintiff, and last two factors were neutral).
CONCLUSION
For the foregoing reasons, the Court denies GIAG and Pacorini Vlissingen’s motions to
dismiss for lack of personal jurisdiction.
As Judge Forrest noted in denying the class plaintiffs’ and other individual plaintiffs’
motions for leave to amend their complaints to add, inter alia, GIAG and Pacorini Vlissingen as
defendants, this “create[s] a disparity between . . . Fujifilm’s [case] on the one hand and the
[other plaintiffs’] on the other. In light of how we have reached that disparity, however, the
Court believes the most equitable and efficient course is to proceed with two different operative
case theories in two parallel tracks.” In re Aluminum Warehousing Antitrust Litig.,
2016 WL 1629350, at *8. This observation is today, at this later juncture, at least as apt, if not

31

more so. For avoidance of doubt, GIAG and Pacorini Vlissingen are defendants in the Fujifilm
and Reynolds & Southwire cases only. See No. 15 Civ. 8307 (PAE); No. 16 Civ. 5955 (PAE).24
The Court directs GIAG and Pacorini Vlissingen to answer, or otherwise respond to, the
AC by May 12, 2020. The Court further directs counsel for GIAG, Pacorini Vlissingen,
Fujifilm, and Reynolds Consumer Products LLC to meet and confer to discuss next steps by
May 4, 2020. The Court requests a joint letter, due May 12, 2020, from those parties setting
forth a plan for what the Court is confident will be limited additional discovery relating to GIAG
and Pacorini Vlissingen.
The motions at dockets 83 and 94 are closed.

PaJA.�

SO ORDERED.

____________________________
Paul A. Engelmayer
United States District Judge

Dated: April 28, 2020
New York, New York

24

Counsel in the Reynolds & Southwire litigation agreed to be bound by the Court’s resolution of
this motion. No. 13 MD 2481 (PAE), Dkt. 1155 at 53. The Court accordingly expects GIAG
and Pacorini Vlissingen to now appear and answer the complaint in that member case within this
MDL, on the same schedule as applicable to Fujifilm’s complaint.
32