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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 MOTIONS TO DISMISS
`AND STAY
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`In this antitrust action, a group of consumers allege a conspiracy among the defendant
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`banks and financial institutions to fix the intra-bank interest rate known as the USD LIBOR. Dkt.
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`No. 1. The Court denied plaintiffs’ requests for a preliminary injunction. Dkt. No. 351.
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`This order resolves defendants’ motions to dismiss. The defendants jointly filed a motion
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`under Federal Rule of Civil Procedure 12(b)(2) to dismiss the complaint for lack of personal
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`jurisdiction. Dkt. No. 315. Defendants also filed a separate “merits” motion challenging
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`plaintiffs’ complaint on various grounds under Rules 12(b)(1), 12(b)(6), and 12(b)(7). Dkt.
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`No. 316. The ICE defendants separately filed a supplemental brief raising additional, individual
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`arguments for dismissal. Dkt. No. 319.1
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`The parties’ familiarity with the facts is assumed, and the complaint, Dkt. No. 1, is
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`dismissed with leave to amend.
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`DISCUSSION
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`I.
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`PERSONAL JURISDICTION
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`Defendants seek dismissal on the ground that the Court lacks personal jurisdiction over any
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`1 The United States Chamber of Commerce and others filed an unopposed motion for leave to file
`an amicus brief. Dkt. No. 326. The motion is granted, and the proposed amicus brief, Dkt.
`No. 326-1, is deemed filed.
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`Northern District of California
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`United States District Court
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`Case 3:20-cv-05832-JD Document 365 Filed 09/13/22 Page 2 of 8
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`defendant. Dkt. No. 315. Well-established standards govern the analysis of this request. In
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`opposing defendants’ motion, it is plaintiffs who “bear[] the burden of establishing that
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`jurisdiction is proper.” Boschetto v. Hansing, 539 F.3d 1011, 1015 (9th Cir. 2008). A district
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`court has discretion to decide the mode of resolving a jurisdictional motion, and when, as here, the
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`Court determines that it will receive only written materials, “these very limitations dictate that a
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`plaintiff must make only a prima facie showing of jurisdictional facts through the submitted
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`materials in order to avoid a defendant’s motion to dismiss.” Data Disc, Inc. v. Systems
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`Technology Assocs., Inc., 557 F.2d 1280, 1285 (9th Cir. 1977); see also Schwarzenegger v. Fred
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`Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004). “When a defendant moves to dismiss for
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`lack of personal jurisdiction, the plaintiff is ‘obligated to come forward with facts, by affidavit or
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`otherwise, supporting personal jurisdiction.’” Scott v. Breeland, 792 F.2d 925, 927 (9th Cir. 1986)
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`(quoting Amba Marketing Sys., Inc. v. Jobar Int’l, Inc., 551 F.2d 784, 787 (9th Cir.1977)).
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`“Although the plaintiff cannot ‘simply rest on the bare allegations of its complaint,’
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`uncontroverted allegations in the complaint must be taken as true.” Schwarzenegger, 374 F.3d at
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`800 (quoting Amba Marketing, 551 F.2d at 787). Factual conflicts in the parties’ affidavits are to
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`be resolved in favor of the party asserting jurisdiction, namely the plaintiffs. Action Embroidery
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`Corp. v. Atlantic Embroidery, Inc., 368 F.3d 1174, 1177 (9th Cir. 2004); Gevorkyan v. Bitmain
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`Technologies Ltd., No. 18-cv-07004-JD, 2022 WL 3702093, at *1 (N.D. Cal. Aug. 26, 2022).
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`Dismissal on personal jurisdiction grounds is denied for the United States defendants.2 For
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`these entities, the relevant facts are not disputed, and controlling law warrants the exercise of
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`jurisdiction. Our circuit has concluded that in cases under Section 12 of the Clayton Act, such as
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`this one, the Court may exercise personal jurisdiction over a defendant consistent with
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`2 Both sides agree that the United States defendants are: Intercontinental Exchange Inc.,
`Intercontinental Exchange Holdings, Inc., ICE Data Services, Inc., ICE Pricing and Reference
`Data LLC, Bank of America, N.A., Bank of America Corporation, Barclays Capital Inc., Citibank
`N.A., Citigroup Inc., Citigroup Global Markets, Inc., Credit Suisse Securities (USA) LLC,
`Deutsche Bank Securities Inc., HSBC Bank USA, N.A., HSBC Securities (USA) Inc., JPMorgan
`Chase & Co., JPMorgan Chase Bank, N.A., J.P. Morgan Securities LLC, Lloyds Securities Inc.,
`MUFG Securities Americas Inc., Natwest Markets Securities Inc., SMBC Capital Markets, Inc.,
`and UBS Securities LLC. Dkt. No. 327 (plaintiffs’ oppo.) at 5; Dkt. No. 339 (defendants’ reply)
`at 1 n.1; Dkt. No. 355 (notice of voluntary dismissal of RBC Capital Markets, LLC).
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`Case 3:20-cv-05832-JD Document 365 Filed 09/13/22 Page 3 of 8
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`constitutional principles of due process so long as the defendant has minimum contacts with the
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`United States as a whole. See Go-Video, Inc. v. Akai Electric Co., Ltd., 885 F.2d 1406, 1415 (9th
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`Cir. 1989) (district court was “clearly correct . . . that the worldwide service provision of § 12
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`justifies its conclusion that personal jurisdiction may be established in any district, given the
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`existence of sufficient national contacts.”); Action Embroidery, 368 F.3d at 1180 (under a statute
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`providing for nationwide service of process, such as Section 12 of the Clayton Act, “the inquiry to
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`determine ‘minimum contacts’ is . . . ‘whether the defendant has acted within any district of the
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`United States or sufficiently caused foreseeable consequences in this country.”) (quoting
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`Securities Investor Protection Corp. v. Vigman, 764 F.2d 1309, 1316 (9th Cir. 1985)).
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`In Action Embroidery, the circuit determined that, “[a]s a Virginia professional corporation
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`operating in the United States, [the law firm] Wolcott has clearly had such minimum contacts.
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`Constitutional principles of due process are therefore satisfied, and personal jurisdiction over
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`Action and Vanguard’s antitrust claims against Wolcott is proper.” Id. So too, here. Plaintiffs’
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`allegations that each of the United States defendants “was organized in a state in these United
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`States and has its principal place of business or headquarters in a city or cities within the United
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`States” is not disputed. Dkt. No. 327 at 6. Defendants do not contest the existence of these
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`minimum contacts, but say that these do not show that any United States defendant “is ‘at home’
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`in California.” Dkt. No. 339 at 3. This misses the mark because the relevant forum here is the
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`United States, not California. See Action Embroidery, 368 F.3d at 1180. A “minimum contacts”
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`analysis is proper here, and is met for the United States defendants because each one was a United
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`States company “operating in the United States.” Id.
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`Defendants’ emphasis on the distinction between “general” and “specific” jurisdiction, see
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`Dkt. No. 339, is of no moment. Neither Action Embroidery, 368 F.3d 1174, nor Go-Video, 885
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`F.2d 1406, specified which category of personal jurisdiction it was finding to be applicable. The
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`United States Supreme Court has observed that “[t]he law of specific jurisdiction . . . seeks to
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`ensure that States with ‘little legitimate interest’ in a suit do not encroach on States more affected
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`by the controversy.” Ford Motor Co. v. Montana Eighth Judicial District Court, 141 S. Ct. 1017,
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`1025 (2021) (quoting Bristol-Myers Squibb Co. v. Superior Court of Cal., San Francisco Cnty.,
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`United States District Court
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`Case 3:20-cv-05832-JD Document 365 Filed 09/13/22 Page 4 of 8
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`137 S. Ct. 1773, 1780 (2017)). It is not at all clear how, or if, that concern applies where the
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`relevant forum is the United States as a whole. In any event, the exercise of personal jurisdiction
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`over the United States defendants is solidly supported by Action Embroidery, 368 F.3d 1174.
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`A different conclusion is warranted for the foreign defendants.3 For these defendants,
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`plaintiffs have not met their obligation to “come forward with facts, by affidavit or otherwise,
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`supporting personal jurisdiction.” Scott, 792 F.2d at 927 (quotations omitted). Defendants
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`submitted an extensive set of declarations on their contacts with the United States, Dkt. No. 315-2.
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`Plaintiffs did not respond in kind. See Dkt. No. 327. The allegations plaintiffs rely on in the
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`complaint are conclusory, vague, and controverted. See id. at 11-14. This will not do for
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`plaintiffs’ burden of establishing personal jurisdiction. See Schwarzenegger, 374 F.3d at 800.
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`The foreign defendants are dismissed for lack of personal jurisdiction, and the dismissal is without
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`prejudice. See Grigsby v. CMI Corp., 765 F.2d 1369, 1372 n.5 (9th Cir. 1985) (“Plaintiffs argue
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`that although the district court was correct in determining that it had no personal jurisdiction over
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`the Torchmark defendants, the court erred in dismissing the complaint ‘with prejudice’ as to these
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`defendants. This is true.”).
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`II.
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`ANTITRUST STANDING
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`Plaintiffs have alleged claims against the United States defendants under Sections 1 and 2
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`of the Sherman Act, 15 U.S.C. §§ 1, 2, and they seek injunctive relief and treble damages under
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`Sections 4 and 16 of the Clayton Act, 15 U.S.C. §§ 15, 26. Dkt. No. 1. The claims are dismissed
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`for lack of antitrust standing.
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`“The class of persons who may maintain a private damage action under the antitrust laws is
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`broadly defined in § 4 of the Clayton Act.” Associated General Contractors of Cal., Inc. v. Cal.
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`State Council of Carpenters, 459 U.S. 519, 529 (1983) (AGC) (citing 15 U.S.C. § 15). But
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`3 The foreign defendants are: ICE Benchmark Administration Limited, Barclays Bank PLC,
`Coöperatieve Rabobank U.A., Credit Suisse Group AG, Credit Suisse AG, Deutsche Bank AG,
`HSBC Holdings plc, HSBC Bank plc, Lloyds Bank plc, MUFG Bank, Ltd., The Bank of Tokyo-
`Mitsubishi UFG Ltd., Mitsubishi UFJ Financial Group, Inc., Royal Bank of Scotland Group plc,
`Royal Bank of Scotland plc, National Westminster Bank plc, Sumitomo Mitsui Banking
`Corporation, Sumitomo Mitsui Financial Group Inc., Sumitomo Mitsui Banking Corporation
`Europe Ltd., UBS Group AG, and UBS AG. Dkt. No. 327 at 7; Dkt. No. 339 at 1 n.2; Dkt.
`No. 345; Dkt. No. 355.
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`Northern District of California
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`United States District Court
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`Case 3:20-cv-05832-JD Document 365 Filed 09/13/22 Page 5 of 8
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`Section 4 is “not to be read literally so that ‘any person’ who was injured ‘by reason of anything
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`forbidden by the antitrust laws’ could maintain an action.” R.C. Dick Geothermal Corp. v.
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`Thermogenics, Inc., 890 F.2d 139, 146 (9th Cir. 1989) (en banc) (quoting AGC, 459 U.S. at 535).
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`Instead, “[t]o determine whether the plaintiff’s case falls within the intended area of statutory
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`protection, we must ‘evaluate the plaintiff’s harm, the alleged wrongdoing by the defendants and
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`the relationship between them.’” Id.
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`The Court will balance several factors, no one of which is “decisive.” Id. They include
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`“(1) the specific intent of the alleged conspirators; (2) the directness of the injury; (3) the character
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`of the damages, including the risk of duplicative recovery, the complexity of apportionment, and
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`their speculative character; (4) the existence of other, more appropriate plaintiffs; [and] (5) the
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`nature of the plaintiff’s claimed injury.” Id.; see also American Ad Mgmt., Inc. v. General
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`Telephone Co. of Cal., 190 F.3d 1051, 1054 (9th Cir. 1999) (antitrust standing factors include
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`“(1) the nature of the plaintiff’s alleged injury; that is, whether it was the type the antitrust laws
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`were intended to forestall; (2) the directness of the injury; (3) the speculative measure of the harm;
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`(4) the risk of duplicative recovery; and (5) the complexity in apportioning damages”).
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`A threshold problem for plaintiffs is the rather cavalier approach they took to this issue.
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`Antitrust standing is different from Article III standing and requires a “more demanding” showing.
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`Amarel v. Connell, 102 F.3d 1494, 1507 (9th Cir. 1997); AGC, 459 U.S. at 535 n.31 (“Harm to the
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`antitrust plaintiff is sufficient to satisfy the constitutional standing requirement of injury in fact,
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`but the court must make a further determination whether the plaintiff is a proper party to bring a
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`private antitrust action.”). Consequently, the Court’s prior rejection of defendants’ Article III
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`standing challenge, see Dkt. No. 351 at 3-5, was not the end of the matter. In addition, standing is
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`an ongoing inquiry, and the “need to satisfy the requirements of Article III persists throughout the
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`life of the lawsuit, with the later stages of the case requiring more of plaintiffs than is required at
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`this early stage.” Id. at 4-5 (quotations and citations omitted).
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`It was plaintiffs’ burden to plausibly allege antitrust standing. See City of Oakland v.
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`Oakland Raiders, 20 F.4th 441, 448 (9th Cir. 2021) (“To plead a Sherman Act claim, a private
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`plaintiff must show that it is a proper party to pursue the claim -- a requirement known as antitrust
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`Case 3:20-cv-05832-JD Document 365 Filed 09/13/22 Page 6 of 8
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`standing.”). “The doctrine of antitrust standing requires an inquiry beyond that performed to
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`determine standing in a constitutional sense. If standing is not found, an essential element of the
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`plaintiff’s case is missing and the plaintiff’s case fails. To score a home run the plaintiff must first
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`have touched first base.” Dick Geothermal, 890 F.2d at 145 (internal quotations and citation
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`omitted). But plaintiffs made only a passing mention of antitrust standing: “Defendants argue
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`that plaintiffs lack antitrust standing. This argument ignores the fact that the antitrust laws
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`prohibit price-fixing, and any loans which contain the illegal price is the very kind of damage that
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`flows from the price-fixing.” Dkt. No. 328 at 2. This was not a serious effort to demonstrate the
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`adequacy of plaintiffs’ antitrust standing allegations under the case law.
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`The Court’s independent review of the complaint confirmed the absence of antitrust
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`standing. The complaint says nothing about the “specific intent of the alleged conspirators,” Dick
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`Geothermal, 890 F.2d at 146, and what the defendants may have gotten out of continuing to
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`follow the formula and method for setting LIBOR, which are well-known to the public, as
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`demonstrated by plaintiffs’ allegations. See, e.g., Dkt. No. 1 ¶¶ 42-43, 49-52. The “directness of
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`the injury” is also questionable, as are the “nature of the plaintiff’s claimed injury” and the
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`“existence of other, more appropriate plaintiffs.” Dick Geothermal, 890 F.2d at 146. Plaintiffs
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`offer conclusory and vague allegations to the effect that “numerous plaintiffs, including plaintiffs
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`Lisa McCarthy, Jose Brito, Jan-Marie Brown, Brenda Davis, Gabriel Garavanian, Harry
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`Garavanian, Bill Rubinsohn, Sandy Russell, Gary Talewsky, are consumers of credit cards issued
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`by unnamed co-conspirator Capital One, which lists the 3-month and 1-month LIBOR rates in its
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`statements as possible components in disclosing variable interest rates to be charged to its
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`customers,” and “plaintiff Yvonne Jocelyn Gardner is a consumer of a variable interest rate
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`mortgage from defendant Bank of America.” Dkt. No. 1 ¶¶ 5-6. Questions left unanswered by
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`these allegations and the complaint as a whole include: whether (and which) plaintiffs even had
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`interest rates or other financial obligations that were tied to the LIBOR rate; whether plaintiffs
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`made any payments that were tied to the LIBOR rate; whether, and to what degree, the LIBOR
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`rate was higher than what a competitive rate would have been in the absence of the LIBOR
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`formula and methodology; and the role played by third-party credit-issuing companies such as
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`Case 3:20-cv-05832-JD Document 365 Filed 09/13/22 Page 7 of 8
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`Capital One, which presumably set other important components of the interest rates and financial
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`obligations plaintiffs were subject to. Overall, plaintiffs have not done enough to establish
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`antitrust standing.
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`III. OTHER ARGUMENTS FOR DISMISSAL
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`The Court declines to reach defendants’ other arguments for dismissal at this time. As
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`plaintiffs contemplate amendment of the complaint, they are advised to take into account the
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`Court’s concerns about their theory of the case stated in the injunction order, Dkt. No. 351, and
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`during the hearings. “In a field in which catchwords have often been dominant there is a grave
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`risk of applying a tag with mechanical literalness.” Dick Geothermal, 890 F.2d at 151. That
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`observation has particular application to the way plaintiffs have framed and attempted to litigate
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`this case, with an unrelenting focus on defendants’ agreement “to fix” the LIBOR rate “by
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`formula.” See, e.g., Dkt. No. 328 at 1. This approach is all the more doubtful because the
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`complaint says nothing about how the LIBOR formula enabled its members to “maximize their
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`profits,” even though that is a major element of a Section 1 claim. See City of Oakland, 20 F.4th
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`at 458 (“In a horizontal price-fixing scheme . . . members of a cartel ‘collude on price and output
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`in an effort to maximize their profits.’”).
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`Plaintiffs acknowledge that the LIBOR rate is “used by an estimated US $350 trillion
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`($350,000,000,000,000.00) of outstanding contracts in maturities ranging from overnight to more
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`than 30 years.” Dkt. No. 1 at 3. As the Supreme Court stated “over 20 years ago in Associated
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`Gen. Contractors of Cal., Inc. v. Carpenters, 459 U.S. 519, 528, n.17 (1983), ‘a district court must
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`retain the power to insist upon some specificity in pleading before allowing a potentially massive
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`factual controversy to proceed.’” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 558 (2007). The
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`current version of plaintiffs’ complaint is sorely lacking in that specificity.
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`CONCLUSION
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`Plaintiffs’ complaint, Dkt. No. 1, is dismissed in its entirety, with leave to amend. An
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`amended complaint must be filed by October 4, 2022. The amended complaint may re-allege
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`claims against the foreign defendants who were dismissed without prejudice for lack of personal
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`jurisdiction, but it may not add new defendants or new claims without the Court’s prior consent.
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`Case 3:20-cv-05832-JD Document 365 Filed 09/13/22 Page 8 of 8
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`Pending further order, the case is stayed in all other respects. The discovery dispute and
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`request for a case schedule, Dkt. Nos. 317, 363, are terminated without prejudice and will be
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`addressed as developments warrant.
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`IT IS SO ORDERED.
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`Dated: September 13, 2022
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`JAMES DONATO
`United States District Judge
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`Northern District of California
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`United States District Court
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