Case 3:20-cv-05832-JD Document 351 Filed 12/23/21 Page 1 of 9
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`LISA MCCARTHY, et al.,
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`Plaintiffs,
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`v.
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`INTERCONTINENTAL EXCHANGE,
`INC., et al.,
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`Defendants.
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`Case No. 20-cv-05832-JD
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`ORDER RE INJUNCTION
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`Re: Dkt. Nos. 19, 259
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`In this consumer antitrust action, Lisa McCarthy and twenty-six other plaintiffs allege that
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`a number of banks and financial institutions have engaged in a conspiracy to fix the intra-bank
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`interest rate known as the USD LIBOR. Dkt. No. 1. The gravamen of the complaint is that the
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`LIBOR formula and procedures themselves, which have been publicly known since the 1980s, are
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`inherently anticompetitive, and that defendants’ participation in determining LIBOR is itself a
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`conspiracy. In this respect, this case is entirely different from long-running litigation in other
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`courts which alleged that banks and other financial institutions manipulated the submissions used
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`to determine the LIBOR. See Gelboim v. Bank of America Corp., 823 F.3d 759, 764 (2d Cir.
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`2016) (“[i]t is alleged that the Banks colluded to depress LIBOR by violating the rate-setting
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`rules” so that “the payout associated with the various financial instruments was thus below what it
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`would have been” absent the manipulation). Plaintiffs are consumers of loans and credit cards
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`with variable interest rates, and say they paid artificially inflated interest rates as a result of
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`defendants’ conduct.
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`Plaintiffs have filed a motion for preliminary and permanent injunction under Federal Rule
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`of Civil Procedure 65, which asks that defendants be prohibited from, among other things,
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`“continuing to engage in their price-fixing scheme” and “enforcing any financial instrument that
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`Case 3:20-cv-05832-JD Document 351 Filed 12/23/21 Page 2 of 9
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`relies in whole or in part on USD LIBOR.” Dkt. No. 19 at iii. Plaintiffs also seek an order
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`“voiding variable interest rate contracts for consumer loans which include LIBOR as a component
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`of the variable interest rate.” Id.
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`In a subsequent “application for an order to show cause why an injunction should not
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`issue,” Dkt. No. 259, plaintiffs again sought what is effectively the same relief. They asked the
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`Court to issue “an order to show cause why defendants should not be enjoined and prohibited from
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`continuing to engage in their LIBOR price-fixing scheme” and prohibited “from enforcing the
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`LIBOR part of any financial instrument, including mortgages, student loans, credit cards, auto
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`loans and lines of credit, that rely in whole or in part on USD LIBOR.” Id. at 8. The OSC
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`application also asks the Court to “declare void any agreement or contract for a variable interest
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`rate consumer loan that includes USD LIBOR as a component of its variable interest rate,” as well
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`as “require that defendants post a bond to secure the return of their retail customers’ price-fixed
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`overpayments and a bond to cover the difference between the federal treasury rate and the LIBOR
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`price-fixed rate.” Id.
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`Because the injunction and OSC requests are virtually identical, the Court will resolve both
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`in the Rule 65 context. The requests are denied.
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`LEGAL STANDARDS
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`“Preliminary injunctions are ‘an extraordinary remedy never awarded as of right.’”
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`Michigan v. DeVos, 481 F. Supp. 3d 984, 990 (N.D. Cal. 2020) (quoting Winter v. Nat’l Res. Def.
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`Council, Inc., 555 U.S. 7, 24 (2008)). “‘A plaintiff seeking a preliminary injunction must
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`establish that he [or she] is likely to succeed on the merits, that he [or she] is likely to suffer
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`irreparable harm in the absence of preliminary relief, that the balance of equities tips in his [or her]
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`favor, and that an injunction is in the public interest.’” Id. at 990-91 (quoting Winter, 555 U.S. at
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`20); see also Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015) (same). “In our circuit, a
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`plaintiff may also obtain a preliminary injunction under a ‘sliding scale’ approach by raising
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`‘serious questions’ going to the merits of plaintiff’s claims and showing that the balance of
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`hardships tips ‘sharply’ in his or her favor.” Michigan, 481 F. Supp. 3d at 991 (quoting A
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`Case 3:20-cv-05832-JD Document 351 Filed 12/23/21 Page 3 of 9
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`Woman’s Friend Pregnancy Res. Clinic v. Becerra, 901 F.3d 1166, 1167 (9th Cir. 2018) and
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`Vanguard Outdoor, LLC v. City of Los Angeles, 648 F.3d 737, 740 (9th Cir. 2011)).
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`“In all cases, at an ‘irreducible minimum,’ the party seeking an injunction ‘must
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`demonstrate a fair chance of success on the merits, or questions serious enough to require
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`litigation.’” Maffick LLC v. Facebook, Inc., No. 20-cv-05222-JD, 2020 WL 5257853, at *1 (N.D.
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`Cal. Sept. 3, 2020) (quoting Pimentel v. Dreyfus, 670 F.3d 1096, 1105-06 (9th Cir. 2012) (cleaned
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`up)); see also Garcia, 786 F.3d at 740 (“The first factor under Winter is the most important --
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`likely success on the merits.”). Because of this importance, when “a plaintiff has failed to show
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`the likelihood of success on the merits, we need not consider the remaining three [Winter
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`elements].” Garcia, 786 F.3d at 740 (internal quotations and citations omitted).
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`I.
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`ARTICLE III STANDING
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`DISCUSSION
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`Defendants say that plaintiffs lack Article III standing to sue. Dkt. No. 133 at 5-6.
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`Consequently, the Court starts, as it must, with the justiciability of this controversy.
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`Under Article III of the Constitution, federal courts have “the power to decide legal
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`questions only in the presence of an actual ‘Cas[e]’ or ‘Controvers[y].’” Wittman v.
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`Personhuballah, 578 U.S. 539, 543 (2016). Plaintiffs have invoked federal jurisdiction, and so
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`they bear the burden of showing that they have “suffered an ‘injury in fact’” that is “‘fairly
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`traceable’ to the conduct being challenged” and which “will likely be ‘redressed’ by a favorable
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`decision.” Id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).
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`Standing to sue under Article III “must be supported in the same way as any other matter
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`on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence
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`required at the successive stages of the litigation.” Lujan, 504 U.S. at 561. In this “very
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`preliminary stage of the litigation,” the Court will take into account the “allegations in [plaintiffs’]
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`complaint and whatever other evidence they submitted in support of” their preliminary injunction
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`motion. Washington v. Trump, 847 F.3d 1151, 1159 (9th Cir. 2017).
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`“At the preliminary injunction stage, plaintiffs must make a clear showing of each element
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`of standing.” Townley v. Miller, 722 F.3d 1128, 1133 (9th Cir. 2013) (citations omitted). When
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`United States District Court
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`Case 3:20-cv-05832-JD Document 351 Filed 12/23/21 Page 4 of 9
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`there are multiple plaintiffs, as is the case here, the presence of one plaintiff with standing “assures
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`that [the] controversy before [the] Court is justiciable.” Dept. of Commerce v. U.S. House of
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`Representatives, 525 U.S. 316, 330 (1999) (citing Director, Office of Workers’ Compensation
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`Programs v. Perini North River Assocs., 459 U.S. 297, 303-05 (1983)).
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`Defendants’ Article III objection is not well taken. The complaint alleges that plaintiffs
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`are “consumers of variable interest rate loans”; “USD LIBOR is an unlawful rate regularly utilized
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`as a component of the pricing in variable interest rate consumer loans by the defendants and their
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`co-conspirators”; and plaintiffs “have been damaged and are threatened with damage in that they
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`have paid and will pay anticompetitive rates in the future for variable interest rate loans.” Dkt.
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`No. 1 ¶ 4. On that score, plaintiff McCarthy filed a declaration attesting that she is “a consumer of
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`variable interest rate loans, including a Capital One credit card with a variable interest rate tied to
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`USD LIBOR.” Dkt. No. 212-1 ¶ 2. The complaint also alleges that defendants conspired to fix
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`the USD LIBOR rate with an agreed-upon formula that excluded the lowest submitted rates, and
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`that a “reasonable estimate of the competitive price” is “the lowest rate submitted by the
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`contributor banks, which is excluded by virtue of defendants’ unlawful combination or
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`conspiracy.” Dkt. No. 1 ¶¶ 43, 45. Plaintiffs provided a declaration by Patricia Plonsker, a
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`“financial analyst and management consultant specializing in interest rate risk for financial
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`institutions,” who states that “the impact of the US LIBOR price-fixing formula on US consumers
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`is enormous” and has resulted in “excess overcharge interest accrued on outstanding loans.” Dkt.
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`No. 19-2 at 3 & ¶ 28.1
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`These factors amply establish plaintiffs’ standing to sue under Article III. To be sure,
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`“[s]tanding is an ongoing inquiry” and the need to satisfy the requirements of Article III “persists
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`throughout the life of the lawsuit,” with the later stages of the case requiring more of plaintiffs
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`1 Defendants’ requests to strike Plonsker’s declarations under Federal Rule of Evidence 702, Dkt.
`Nos. 135, 266, are denied without prejudice to possible consideration down the road. A “trial
`court may give even inadmissible evidence some weight” in a preliminary injunction analysis.
`Flynt Distributing Co., Inc. v. Harvey, 734 F.2d 1389, 1394 (9th Cir. 1984); see also Johnson v.
`Couturier, 572 F.3d 1067, 1083 (9th Cir. 2009). The Court considered the Plonsker declaration at
`Dkt. No. 19-2 for the specific question of standing, but did not rely on any of Plonsker’s
`declarations for the analysis of the preliminary injunction factors.
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`Northern District of California
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`than is required at this early stage. Heeger v. Facebook, Inc., 509 F. Supp. 3d 1182, 1188 (N.D.
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`Cal. 2020) (citation omitted). But at this stage, plaintiffs are positioned to sue.
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`II.
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`LIKELIHOOD OF SUCCESS
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`The threshold inquiry under Winter is plaintiffs’ likelihood of success. Plaintiffs state in
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`the complaint two antitrust violations by defendants: (1) price fixing in violation of Section 1 of
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`the Sherman Act, 15 U.S.C. § 1; and (2) a conspiracy to monopolize in violation of Section 2 of
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`the Sherman Act, 15 U.S.C. § 2. Dkt. No. 1 ¶¶ 68-85. The injunction requests are based on the
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`Section 1 claim only, see Dkt. No. 19 at 1 & Dkt. No. 259 at 1, and so the merits inquiry focuses
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`on that claim only. The question is whether plaintiffs have demonstrated a likelihood of success,
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`or at the very least a serious question, on their Section 1 claim that warrants the extraordinary
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`remedy of a preliminary injunction.
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`They have not. The salient facts for this conclusion are largely undisputed. The parties
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`agree that, since the mid-1980s, a group of banks have worked together to set a daily LIBOR rate.
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`Dkt. No. 1 ¶¶ 32-33. To set the rate, each panel bank provided an answer to the question, “At
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`what rate could you borrow funds, were you to do so by asking for and then accepting inter-bank
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`offers in a reasonable market size just prior to 11 a.m.?” Id. ¶ 33. Since management of the
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`LIBOR was handed over from the British Bankers’ Association (BBA) to defendant
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`Intercontinental Exchange Benchmark Administration Limited (IBA) in 2014, IBA has continued
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`to solicit this input data from panel banks. Id. ¶¶ 36-38. IBA then calculates LIBOR “using a
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`trimmed arithmetic mean” in which “the highest and lowest quartiles of submissions are excluded”
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`and “[a] mean is calculated from the remaining middle quartiles, rounded to five decimal places.”
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`Id. ¶ 43.
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`The setting of the daily LIBOR is subject to regulatory oversight. The Financial Conduct
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`Authority (FCA), a creature of U.K. law, is charged with “regulat[ing] LIBOR and supervis[ing]
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`both LIBOR submitters and its administrator.” Dkt. No. 133 at 8. The parties agree that the FCA
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`is in the process of phasing LIBOR out. See Dkt. No. 212 (plaintiffs’ reply brief) at 8
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`(“Defendants have pledged to sunset the LIBOR formula by the end of 2023”); Dkt. No. 133
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`(defendants’ opposition brief) at 1 (“The global financial community has been carefully planning
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`Case 3:20-cv-05832-JD Document 351 Filed 12/23/21 Page 6 of 9
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`for the eventual transition from LIBOR to alternative benchmarks through a phase-out process
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`supervised by financial regulators and central banks.”).
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`The parties do not dispute the nearly universal use of the LIBOR rate in the banking world.
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`The complaint alleges that the rate is “used by an estimated US $350 trillion . . . of outstanding
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`contracts in maturities ranging from overnight to more than 30 years.” Dkt. No. 1 at 3.
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`Defendants make the same point to the effect that an injunction against “continuing to set or
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`observe LIBOR” would “massively disrupt global financial markets, causing grave uncertainty
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`regarding rights and obligations under contracts that reference LIBOR.” Dkt. No. 133 at 12.
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`Plaintiffs say they have demonstrated a likelihood of success on the merits by virtue of a
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`single United States Supreme Court decision of an older vintage: United States v. Socony-Vacuum
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`Oil Co., 310 U.S. 150 (1940). That is in effect the entirety of plaintiffs’ legal argument. See Dkt.
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`No. 19 at 2 (“Plaintiffs’ success on the merits is manifest” under Socony); see also id. at 9-10
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`(same). Much of plaintiffs’ argument simply hurls block quotes from Socony like projectiles from
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`a catapult, because plaintiffs “believe that the simple statements by the Supreme Court, which are
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`clear, concise and cogent, are more persuasive than any arguments that anyone else could make.”
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`Dkt. No. 288 at 2-4.
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`This almost exclusive reliance on Socony is misplaced. It is certainly true that “[a]ny
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`combination which tampers with price structures is engaged in an unlawful activity.” Socony, 310
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`U.S. at 221. But plaintiffs’ insistence that the merits analysis should stop with a highly general
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`and undisputed proposition of antitrust law plucked from Socony is not correct. To start, plaintiffs
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`overlook the distinguishing fact that Socony was a criminal case where the defendants were
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`convicted at trial of a conspiracy that was “not to be found in any formal contract or agreement.”
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`Id. at 177. In addition, legal developments in the 81 years since Socony was published cast
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`considerable doubt on plaintiffs’ rather mechanical analysis. In Broadcast Music, Inc. v.
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`Columbia Broadcasting System, Inc., 441 U.S. 1, 9 (1979), the Supreme Court expressly stated
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`that the question was not “simply [one] of determining whether two or more potential competitors
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`have literally ‘fixed’ a ‘price.’” The Court cautioned that “[l]iteralness is overly simplistic and
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`often overbroad. When two partners set the price of their goods or services they are literally ‘price
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`Case 3:20-cv-05832-JD Document 351 Filed 12/23/21 Page 7 of 9
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`fixing,’ but they are not per se in violation of the Sherman Act.” Broadcast Music, 441 U.S. at 9.
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`In Texaco Inc. v. Dagher, 547 U.S. 1, 6 (2006), the Court again underscored that the defendants’
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`“pricing policy may be price fixing in a literal sense,” but “it is not price fixing in the antitrust
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`sense.”
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`Plaintiffs did not engage with these developments, and simply pound Socony to say that
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`price fixing is illegal. See, e.g., Dkt. No. 288 at 1. This will not do for present purposes. To be
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`sure, the Court embraces the proposition that horizontal price fixing is a per se violation of the
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`Sherman Act Section 1. See United States v. Florida, No. 4:14-cr-00582-JD, 2017 WL 1374599,
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`at *2 (N.D. Cal. Apr. 17, 2017). But that does not mean that simply adding the LIBOR formula to
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`this legal principle amounts to proof that plaintiffs are entitled to immediately void $350 trillion
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`dollars’ worth of contracts on a preliminary basis, especially when the Supreme Court has
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`repeatedly cautioned since Socony that the antitrust laws should not be applied in such a rote
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`manner.
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`Overall, plaintiffs have not carried their burden of establishing a likelihood of success
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`sufficient to warrant the extraordinary relief of a preliminary injunction. Even if plaintiffs were
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`said to have raised a serious question about the Section 1 claim, an injunction would still be
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`unwarranted because they have failed to satisfy the other Winter factors.2
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`III.
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`IRREPARABLE HARM, BALANCE OF THE EQUITIES, AND THE PUBLIC
`INTEREST
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`Plaintiffs have not established an imminent threat of irreparable harm. The injury
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`plaintiffs claim is that they paid too much in interest rates, but “[i]t is well established . . . that
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`such monetary injury is not normally considered irreparable.” Maffick, 2020 WL 5257853, at *3
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`(quoting Los Angeles Memorial Coliseum Comm’n v. Nat’l Football League, 634 F.2d 1197, 1202
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`(9th Cir. 1980)). Plaintiffs also acknowledge that the LIBOR formula and procedures they attack
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`have been publicly known and in continuous use since the 1980s. Dkt. No. 19 at 4. Why these
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`well-known, decades-old practices are suddenly ripe for emergency relief in 2021 is not explained.
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`2 Because plaintiffs’ merits showing is lacking, the Court need not resolve defendants’ other
`“likelihood of success” arguments, such as antitrust standing or personal jurisdiction. Dkt.
`No. 133 at 6-7, 9-10. Those issues will be addressed as warranted at a later stage of the case.
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`This delay further undermines a claim of irreparable harm. See Cal. Physicians Serv., Inc. v.
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`Healthplan Servs., Inc., No. 3:18-cv-03730-JD, 2021 WL 879797, at *7 (N.D. Cal. Mar. 9, 2021).
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`The “balance of equities” does not tip in plaintiffs’ favor. See Winter, 555 U.S. at 24-31.
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`Other than plaintiff McCarthy, none of the plaintiffs have demonstrated that they are paying a
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`variable interest rate that is tied to LIBOR. Dkt. No. 212-2 - 212-8. Consequently, the hardship to
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`plaintiffs is, on the whole, minor and purely monetary. In contrast, defendants have established
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`that if the Court were to enjoin LIBOR across the board, as plaintiffs propose, substantial and
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`possibly catastrophic consequences would ensue in the global financial market. See Dkt. No. 133
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`at 14-15; Dkt. No. 136. Plaintiffs did not contest this showing.
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`For the same reason, the public interest factor weighs heavily against plaintiffs. This
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`factor looks at an injunction’s “impact on non-parties rather than parties.” Bernhardt v. L.A.
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`Cnty., 339 F.3d 920, 931 (9th Cir. 2003) (citation omitted). An amicus brief filed by the Chamber
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`of Commerce of the United States of America and others demonstrates that the injunction
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`plaintiffs request would “inject great uncertainty into financial transactions, pose systemic risks to
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`the financial system, and leave parties to millions of contracts without a mechanism to calculate
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`their payment obligations.” Dkt. No. 214-1 at 1. Another amicus brief filed by the Federal
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`Reserve Bank of New York and the Board of Governors of the Federal Reserve System also
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`establishes that an “abrupt end to LIBOR without an orderly transition would be detrimental to the
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`public interest with consequences that could include . . . upending consumer contracts, including
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`mortgages and student loans.” Dkt. No. 282-1 at 1. Plaintiffs rather glibly dismiss these serious
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`concerns by saying that “[f]inancial disasters are irrelevant in price fixing cases.” Dkt. No. 318 at
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`1. Not so under Winter. The public interest factor is a critical component of a preliminary
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`injunction analysis, and plaintiffs have failed to show that the public interest supports the
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`injunction they have asked for.3
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`CONCLUSION
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`The motion for injunction and application for an order to show cause are both denied, Dkt.
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`3 Defendants’ objection to new reply evidence, Dkt. No. 292, is terminated as moot. The evidence
`objected to played no role in this order.
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`Case 3:20-cv-05832-JD Document 351 Filed 12/23/21 Page 9 of 9
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`Nos. 19, 259, as are defendants’ requests to strike and their evidentiary objection. Dkt. Nos. 135,
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`266, 292. The Financial Conduct Authority’s motion for leave to file an amicus brief, Dkt.
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`No. 349, is terminated as moot in light of this order. The motions to dismiss that were taken under
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`submission, Dkt. No. 342, will be resolved in a separate order.
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`IT IS SO ORDERED.
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`Dated: December 23, 2021
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`JAMES DONATO
`United States District Judge
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`Northern District of California
`
`United States District Court
`
`