`
`UNITED STATES DISTRICT COURT
`MIDDLE DISTRICT OF FLORIDA
`TAMPA DIVISION
`------------------------------------------------------------------------x
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`:::::::::::::
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`TRAVIS TAAFFE,
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` Plaintiff,
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`v.
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`ROBINHOOD MARKETS, INC., ROBINHOOD
`FINANCIAL LLC, and ROBINHOOD SECURITIES,
`LLC,
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` Defendants.
`
`------------------------------------------------------------------------x
`
` Case No. 8:20-cv-00513-CEH-SPF
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`MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF’S MOTION FOR
`TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
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`
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`Case 8:20-cv-00513-CEH-SPF Document 12 Filed 03/27/20 Page 2 of 7 PageID 130
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`Defendants Robinhood Markets, Inc., Robinhood Financial LLC, and Robinhood
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`Securities, LLC (collectively, “Robinhood”) submit this memorandum of law in opposition to
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`Plaintiff Travis Taaffe’s Motion for Temporary Restraining Order and Preliminary Injunction.
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`PRELIMINARY STATEMENT
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`Plaintiff ran to court to file this “emergency” motion for a temporary restraining order
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`without first making a good faith effort to contact defense counsel and obtain Robinhood’s
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`position or seek a resolution. Had Plaintiff done so, he would have learned that Robinhood’s
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`communications with its customers are not intended to interfere in any way with this putative
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`class action or the right of any Robinhood customer to participate as a member of any
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`prospective plaintiff class. Accordingly, those communications raise no issue under Rule 23(d)
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`and there is no possible basis for the extreme remedies sought by Plaintiff, much less any
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`imminent threat of irreparable injury, as required for a temporary restraining order.
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`In connection with an outage suffered by Robinhood’s trading platform in early March
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`2020, Robinhood reached out to certain customers, offering payments and requesting that they
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`sign a release. That release is intended to relate only to individual lawsuits and not to any class
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`claims that are asserted in this lawsuit or in any of the seven putative class actions currently
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`pending in California. Robinhood has no intention of enforcing the release to prohibit any
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`customer from participating in this or any other putative class action and is prepared to enter a
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`stipulation to that effect. Plaintiff’s motion is therefore unnecessary.
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`Nor does the primary relief sought by Plaintiff – a prohibition on any additional releases
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`and a determination that the releases are not valid – present any “emergency” or potential for
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`irreparable harm that would justify a temporary restraining order. Even if Robinhood were
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`seeking to bar participation in any prospective class based on a release – which it is not – the
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`Court could address that issue at any time prior to class certification. Plaintiff’s request for the
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`Case 8:20-cv-00513-CEH-SPF Document 12 Filed 03/27/20 Page 3 of 7 PageID 131
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`private contact information of all of Robinhood’s more than 10 million customers also presents
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`no emergency and suggests ulterior motives.
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`For these reasons, the Court should deny Plaintiff’s motion for a temporary restraining
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`order and preliminary injunction.
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`BACKGROUND
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`Robinhood is an online brokerage firm and a pioneer of commission-free investing. Its
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`customers place securities trades through its website and an app. On March 2-3, 2020,
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`Robinhood’s platform experienced an outage that prevented customers from placing trades. In
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`the wake of the outage, Plaintiff filed this putative class action, and seven other plaintiffs have
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`filed putative class actions in California.
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`Earlier this week, Robinhood began offering customers payments and asking that they
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`sign a release. Robinhood intends those releases to apply only to claims brought in an individual
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`lawsuit or arbitration, and it does not – and will not – take the position that signing a release
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`prevents any customer from being a member of any prospective class in this or any other lawsuit
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`related to the outages.
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`Although Plaintiff’s “Certificate of Good Faith Conference” references an attempt to
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`contact defense counsel by email and telephone (Doc. 10 at p. 18), no such email was received.
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`Plaintiff filed this motion within three hours of leaving a voicemail at 5:00 p.m. and without
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`waiting for a response.
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`ARGUMENT
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`I.
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`ROBINHOOD’S COMMUNICATIONS WITH ITS CUSTOMERS ARE NOT
`MISLEADING AND DO NOT INTERFERE WITH PROSPECTIVE CLASS
`MEMBERS’ RIGHTS.
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`Plaintiff is not entitled to relief under Rule 23(d) because he fails to show that
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`Robinhood’s communications interfere in any way with this lawsuit, much less that they reflect
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`2
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`Case 8:20-cv-00513-CEH-SPF Document 12 Filed 03/27/20 Page 4 of 7 PageID 132
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`“misconduct of a serious nature” or “threaten[] the proper functioning of the litigation.” Sewell
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`v. D’Alessandro & Woodyard, Inc., No. 07-cv-343, 2008 WL 2445765, at *3 (M.D. Fla. June 16,
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`2008); Cox Nuclear Med. v. Gold Cup Coffee Servs., Inc., 214 F.R.D. 696, 698 (S.D. Ala. 2003).
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`“[A]n order limiting communications between parties and potential class members should be
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`based on a clear record and specific findings that reflect a weighing of the need for a limitation
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`and the potential interference with the rights of the parties.” Gulf Oil Co. v. Bernard, 452 U.S.
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`89, 101 (1981).
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`Plaintiff’s motion is based on the incorrect assumption that, in seeking to make payments
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`to customers and requesting releases, Robinhood intends to enforce those releases so as to bar a
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`customer from participating as a member of the putative class. See In re Apple Inc. Device
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`Performance Litig., 18-MD-02827, 2018 WL 4998142, at *5-8 (N. D. Cal. Oct. 15, 2018)
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`(denying relief under Rule 23(d) because the defendant’s offer of remediation did not waive
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`claims in class action). To the contrary, Robinhood will enforce releases only in the context of
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`individual lawsuits or arbitrations – i.e., disputes outside of the class action context. Robinhood
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`is prepared to enter into a stipulation to this effect at the appropriate time. Customers clearly are
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`better off receiving payment now, irrespective of any potential recovery that might be obtained
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`through class action litigation, particularly as any such potential future recovery would be shared
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`with class action lawyers. Robinhood reserves its objection to any putative class member’s
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`effort to seek the same recovery twice.
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`Because Robinhood made no misleading statements to prospective class members about
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`this lawsuit and is not seeking to enforce the release as it pertains to class actions, no corrective
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`action pursuant to Rule 23(d) is permitted. See Gulf Oil, 452 U.S. at 100-01. There is no basis,
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`therefore, to restrict Robinhood from communicating with prospective class members. See
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`3
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`
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`Case 8:20-cv-00513-CEH-SPF Document 12 Filed 03/27/20 Page 5 of 7 PageID 133
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`Sewell, 2008 WL 2445765, at *3 (An order “restricting the communications between
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`representative parties and their counsel and putative class members . . . may not be issued unless
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`there is actual or threatened misconduct of a serious nature.”). Nor is there any need for this
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`Court to rule on the validity of the release, as it will not be enforced as to claims asserted in this
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`or other putative class action lawsuits.1 The request of Plaintiff’s counsel for the highly
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`confidential contact information of all of Robinhood’s customers, including email addresses,
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`plainly is more indicative of an attempt to gain information for purposes of an amended
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`complaint than to provide any benefit to those customers.
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`II.
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`PLAINTIFF IS NOT ENTITLED TO A TEMPORARY RESTRAINING ORDER
`OR PRELIMINARY INJUNCTION.
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`Plaintiff’s request for a temporary restraining order is baseless. Plaintiff has no colorable
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`basis to assert that he or the putative class “is threatened with irreparable injury” that is “so
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`imminent that notice and a hearing on the application for preliminary injunction is impractical if
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`not impossible.” L.R. 4.05(b)(2). Even if Robinhood were seeking to enforce the release so as
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`to prohibit participation in a class – which it is not – “the issue of whether the releases bar claims
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`from any putative class members can be adequately addressed by the parties and the Court at a
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`later stage in this ligation.” In re SunTrust Banks, Inc. 401(k) Plan Affiliated Funds ERISA
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`Litig., No. 11-cv-784, 2017 WL 9884901, at *2 (N.D. Ga. Feb. 27, 2017).
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`Plaintiff’s request for a preliminary injunction fares no better because he does not
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`demonstrate “(1) a substantial likelihood of success on the merits, (2) a substantial threat of
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`irreparable injury if the injunction were not granted, (3) that the threatened injury to the plaintiff
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`outweighs the harm an injunction may cause the defendant, and (4) that granting the injunction
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`1 To the extent any Robinhood customer is unclear as to whether he or she may be member of
`a prospective class, that point can be addressed through class notice, should this litigation
`reach the appropriate stage for such a notice.
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`4
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`Case 8:20-cv-00513-CEH-SPF Document 12 Filed 03/27/20 Page 6 of 7 PageID 134
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`would not disserve the public interest.” Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257,
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`1265 (11th Cir. 2001). “In this Circuit, a preliminary injunction is an extraordinary and drastic
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`remedy not to be granted unless the movant clearly established the burden of persuasion as to the
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`four requisites.” McDonald’s Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir. 1998) (internal
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`alteration and quotations omitted).
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`First, for the reasons discussed above, Robinhood’s communications do not run afoul of
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`Rule 23(d), and therefore Plaintiff is unlikely to succeed on the merits.
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`Second, there is no “substantial threat of irreparable injury” because no Robinhood
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`customer is prohibited from participating in any putative class action on the basis of having
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`signed a release. Moreover, claims for money damages do not constitute irreparable injury.
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`“Mere injuries, however substantial, in terms of money . . . are not enough.” Clewiston
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`Commons LLC v. City of Clewiston, No. 18-cv-339, 2019 WL 480502, at *3 (M.D. Fla. Feb. 7,
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`2019); see also id. (“The basis of injunctive relief in the federal courts has always been
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`irreparable harm and inadequacy of legal remedies,” and the irreparable harm must be “neither
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`remote nor speculative, but actual and imminent.”) (internal quotations omitted). The absence of
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`irreparable injury “standing alone” makes preliminary injunctive relief improper. Siegel v.
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`LePore, 234 F.3d 1163, 1176 (11th Cir. 2000).
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`Third, the balance of hardships does not weigh in favor of Plaintiff, as neither he nor
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`prospective class members face any potential hardship. To the contrary, Robinhood customers
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`benefit from receiving payments and their signing of a release does not impact their ability to
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`participate in this putative class action lawsuit.
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`Fourth, restricting Robinhood’s communications with its customers in the absence of
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`misconduct would harm the public interest because “[p]re-certification communications to
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`5
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`Case 8:20-cv-00513-CEH-SPF Document 12 Filed 03/27/20 Page 7 of 7 PageID 135
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`potential class members are permitted and are considered constitutionally protected speech.” In
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`re Apple Inc. Device Performance Litig., 2018 WL 4998142, at *4-8.
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` CONCLUSION
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`For the reasons set forth herein, Plaintiff’s Motion for Temporary Restraining Order and
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`Preliminary Injunction should be denied.
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`
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`March 27, 2020
`
` /s/ Dennis P. Waggoner_______________
`Dennis P. Waggoner
`Florida Bar No. 509426
`dennis.waggoner@hwhlaw.com
`HILL, WARD & HENDERSON, P.A.
`101 East Kennedy Blvd., Suite 3700
`Tampa, Florida 33602
`Tel: (813) 221-3900
`Fax: (1813) 221-2900
`
`Maeve O’Connor (pro hac vice to be filed)
`Elliot Greenfield (pro hac vice to be filed)
`Brandon Fetzer (pro hac vice to be filed)
`DEBEVOISE & PLIMPTON LLP
`919 Third Avenue
`New York, New York 10022
`(212) 909-6000
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`Attorneys for Defendants Robinhood Markets, Inc.,
`Robinhood Financial LLC, and Robinhood
`Securities, LLC
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`6
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`