This is the latest in a series of posts about In re SSA Bonds Antitrust Litig., 16-cv-3711 (ER).
Background
As previously reported, the central allegation of the action is that dealers in the secondary market for SSA (“supranational, sub-sovereign, and agency”) bonds colluded to reduce competition and to manipulate bond prices. The defendants include(d) many large financial institutions—BofA, Deutsche Bank, Barclays, Citigroup, Credit Suisse etc.—through both domestic and foreign entities. BofA and Deutsche Bank settled for $65.5 million in August 2017. Judge Ramos granted an initial motion to dismiss without prejudice in August 2018 because the complaint failed to allege with particularity how each defendant participated in the scheme, how each plaintiff was specifically injured by any individual transaction, and whether a conspiracy existed between the defendants. Plaintiffs filed an amended complaint in November 2018, and defendants moved to dismiss a second time. In January 2019, HSBC settled for $30 million. Judge Ramos considered the motion to dismiss in two stages. First, on October 4, 2019, he dismissed all claims brought against the foreign defendants and the individual defendants (all British) for lack of personal jurisdiction, with prejudice. Then, on March 18, 2020, he dismissed all claims against the remaining (domestic) defendants, also with prejudice.
This post examines the March 18, 2020, decision, which was based upon two independent determinations: (1) that the plaintiffs’ allegations were not sufficient to establish that they had anti-trust standing; (2) that the plaintiffs’ allegations were not sufficient to establish the existence of a conspiracy between the defendants.
The Decision to Dismiss the Remaining Defendants
Regarding antitrust standing, the court found that the complaint did allege one of the two elements—participation in the market—but failed to allege that they had suffered an antitrust injury. The court stated that plaintiffs were required to plead particular transactions in which they were injured, rather than simply stating that they had engaged in market transactions with defendants during the relevant time period. The court noted that plaintiffs came close in one instance (the details of which were unfortunately redacted) but were unsuccessful because they failed to identify the particular defendants that participated in the transaction, causing them to fall afoul of the prohibition against “group pleading.”
The “group pleading” problem extended into the conspiracy allegations; the court held that a conspiracy had not been plausibly alleged because plaintiffs “continue[d] to make undifferentiated allegations against all defendants and tie together corporate affiliates without justification.” (Op. at p. 12.) Regarding the domestic defendants (all the foreign defendants already having been dismissed), the court held that merely alleging that the domestic entities took direction from their foreign affiliates to engage in prohibited activity was insufficient. As before, the court focused on one set of allegations concerning Citibank N.A. and Citigroup Inc., but the specifics have been redacted. The court did find that these allegations were insufficient because they did not “involve any specific plaintiff . . . or point to a wider conspiracy . . .” (Op. at p. 13.)
Based upon the foregoing, all claims against the domestic defendants were dismissed with prejudice.
Further Proceedings
The action is by no means over. The dismissed claims have been appealed to the Second Circuit, and the settled claims are going through the applicable approval and notice procedures. These activities will be examined in future posts.