In Re: Libor-Based Financial
Court Docket Sheet

2nd Circuit Court of Appeals

2017-01569 (ca2)

NOTICE OF APPEARANCE AS ADDITIONAL COUNSEL, on behalf of Appellee Cooperatieve Rabobank U.A., FILED. Service date 09/11/2017 by CM/ECF. [2121506] [17-1569] [Entered: 09/11/2017 03:31 PM]

Case 17-1569, Document 228, 09/11/2017, 2121506, Page1 of 1 NOTICE OF APPEARANCE FOR SUBSTITUTE, ADDITIONAL, OR AMICUS COUNSEL Short Title: In Re: Libor-Based Financial Instruments Antitrust Litigation _____ Docket No.: 17-1569 ________ Substitute, Additional, or Amicus Counsel’s Contact Information is as follows: Name: Jonathan Ohring Firm: Milbank, Tweed, Hadley & McCloy LLP Address: 28 Liberty Street, New York, NY 10005 Telephone: (212) 530-5147 ___________________________ Fax: 212-822-5147 E-mail: JOhring@milbank.com Appearance for: Coöperatieve Rabobank U.A. (f/k/a Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A.)/Defendant-Appellee (party/designation) Select One: G Substitute counsel (replacing lead counsel:) (name/firm) G Substitute counsel (replacing other counsel: _______) (name/firm) G Additional counsel (co-counsel with: David R. Gelfand/Milbank, Tweed, Hadley & McCloy LLP ✔) (name/firm) G Amicus (in support of:) (party/designation) CERTIFICATION I certify that: ✔ G I am admitted to practice in this Court and, if required by Interim Local Rule 46.1(a)(2), have renewed my admission on OR G I applied for admission on. Signature of Counsel:/s/Jonathan Ohring Type or Print Name: Jonathan Ohring

NOTICE OF APPEARANCE AS ADDITIONAL COUNSEL, on behalf of Appellee Citigroup Inc., Citibank, N.A., Citi Swapco Inc. and Citigroup Financial Products, Inc. in 17-1569, Appellee Citigroup Inc. and Citibank, N.A. in 17-1915, Appellee Citigroup Inc. in 17-2056, Appellee Citigroup, Inc. and Citigroup Financial Products, Inc. in 17-2343, Appellee Citigroup Financial Products, Inc. in 17-2347, Appellee Citibank, N.A., Citigroup Global Markets, Inc. and Citigroup Funding, Inc. in 17-2360, Appellee Citibank, N.A. in 17-2376, Citigroup Global Markets Ltd. in 17-2381, Appellee Citigroup, Inc., Citi Swapco Inc. and Citigroup Financial Products Inc. in 17-2383, 17-2413, FILED. Service date 09/11/2017 by CM/ECF. [2121843] [17-1569, 17-1915, 17-1989, 17-2056, 17-2343, 17-2347, 17-2351, 17-2352, 17-2360, 17-2376, 17-2381, 17-2383, 17-2413] [Entered: 09/11/2017 06:09 PM]

Case 17-1569, Document 230, 09/11/2017, 2121843, Page1 of 2 NOTICE OF APPEARANCE FOR SUBSTITUTE, ADDITIONAL, OR AMICUS COUNSEL Short Title: In re Libor-Based Financial _____ Docket No.: 17-1569 ________ $QG FRQVROLGDWHG FDVHV VHH $SSHQGL[$ DQG FRQVROLGDWHG FDVHV Substitute, Additional, or Amicus Counsel’s Contact Information is as follows: Name: Alan M. Wiseman Firm: Covington & Burling LLP Address: 850 Tenth Street N.W. Telephone: (202) 662-5069 ___________________________ Fax: (202) 662-6291 E-mail: awiseman@cov.com Citigroup Inc., Citibank, N.A., Citi Swapco Inc., Citigroup Financial Products Inc., Citigroup Global Markets Ltd., CitiGroup Global Markets, Inc., and Citigroup Funding, Inc. Appearance for: (party/designation) Select One: G Substitute counsel (replacing lead counsel:) (name/firm) G Substitute counsel (replacing other counsel: _______) (name/firm) G Additional counsel (co-counsel with: Andrew A. Ruffino, Covington & Burling LLP ✔) (name/firm) G Amicus (in support of:) (party/designation) CERTIFICATION I certify that: ✔ G I am admitted to practice in this Court and, if required by Interim Local Rule 46.1(a)(2), have renewed my admission on October 16, 2013 OR G I applied for admission on. Signature of Counsel:/s/Alan M. Wiseman Type or Print Name: Alan M. Wiseman Case 17-1569, Document 230, 09/11/2017, 2121843, Page2 of 2 Appendix A Short Title Docket No. National Credit Union v. Credit Suisse 17-2383 Group AG Salix Capital US Inc. v. Banc of America 17-2381 Securities, LLC In Re: Libor-Based Financial 17-2376 In Re: Libor-Based Financial 17-2360 Salix Capital US Inc. v. Banc of America 17-2351 Securities LLC In Re: Libor-Based Financial 17-2347 In Re: Libor-Based Financial 17-2343 In Re: Libor-Based Financial 17-2413

LETTER, dated 09/12/2017 on behalf of Barclays PLC and Appellee Barclays Capital Inc., regarding party designations, RECEIVED. Service date 09/12/2017 by CM/ECF.[2122217] [17-1569] [Entered: 09/12/2017 10:53 AM]

Case 17-1569, Document 231, 09/12/2017, 2122217, Page1 of 1 September 12, 2017 Ms. Catherine O’Hagan Wolfe Clerk of the Court United States Court of Appeals for the Second Circuit Thurgood Marshall U.S. Courthouse 40 Foley Square New York, NY 10007 Re: In re: LIBOR-Based Fin. Instruments Antitrust Litig.; No. 17-1569 (lead case in consolidated appeals); Salix Capital US Inc. v. Banc of America Secs. LLC, Nos. 17-2351 and 17-2381 (the "Salix Appeal") Dear Ms. Wolfe, I represent Barclays Bank PLC, Barclays PLC, and Barclays Capital Inc. in the appeals consolidated under docket No. 17-1569. The Salix Appeal, along with numerous other appeals, was consolidated by order dated August 24, 2017 (ECF No. 137 in the lead case). I write to request that the Court correct a clerical error in the Salix Appeal (Dockets No. 17-2351 and 17-2381) only. Although two of our clients, Barclays PLC and Barclays Capital Inc., are Defendants-Appellees in the lead appeal and in certain other appeals consolidated with it, they are not parties to the Salix Appeal; Barclays PLC is not a party to the district court actions from which the Salix Appeal was taken, and Barclays Capital Inc. is a defendant in the district court actions but is not a party to the appeal. Therefore, Barclays PLC and Barclays Capital Inc. should be deleted from the list of Defendants-Appellees on dockets No. 17-2351 and 17-2381. Respectfully submitted,/s/Jonathan D. Schiller Jonathan D. Schiller

LETTER, on behalf of Appellant Prudential Investment Portfolios 2, Prudential Core Taxable Money Market Fund should not be considered a separate party, RECEIVED. Service date 09/15/2017 by CM/ECF.[2126107] [17-1569]--[Edited 09/19/2017 by TT] [Entered: 09/15/2017 04:11 PM]

Case 17-1569, Document 249, 09/15/2017, 2126107, Page1 of 1 quinn emanuel trial lawyers washington, dc 51 Madison Avenue, 22nd Floor, New York, New York 10010-1601 TEL (212) 849-7000 FAX (212) 849-7100 September 15, 2017 WRITER’S DIRECT DIAL NO. (212) 849-7345 WRITER’S INTERNET ADDRESS VIA ECF danbrockett@quinnemanuel.com Catherine O’Hagan Wolfe Clerk of Court United States Court of Appeals for the Second Circuit Thurgood Marshall United States Courthouse 40 Foley Square New York, NY 10007 Re: In re Libor-Based Financial Instruments Antitrust Litigation, 17-1569(L); Prudential Investment Portfolios 2 f/k/a Dryden Core Investment Fund, o/b/o Prudential Core Short-Term Bond Fund and Prudential Core Taxable Money Market Fund v. Bank of America Corporation, et al., 17-2360 Dear Ms. O’Hagan Wolfe: We represent Plaintiff-Appellant Prudential Investment Portfolios 2 in the above-captioned appeal. On September 8, 2017 we received notice that the appeal of Prudential Core Taxable Money Market Fund ("MMF") would be dismissed if counsel failed to file an appearance on its behalf by September 22, 2017 (ECF No. 108, 17-2360). MMF should not be considered a separate party, either in the District Court or on appeal. MMF’s status appears to be based upon a misreading of the case caption, whereby "Prudential Investment Portfolios 2... o/b/o Prudential Core Short-Term Bond Fund" was considered to be one entity, and MMF was considered to be a separate entity. In fact, Prudential is acting in this litigation "o/b/o" both Prudential Core Short-Term Bond Fund and MMF, and neither of the funds following the "o/b/o" should be considered a separate party. Thank you for your attention to this matter. Respectfully submitted,/s/Daniel L. Brockett Daniel L. Brockett quinn emanuel urquhart & sullivan, llp LOS ANGELES NEW YORK SAN FRANCISCO SILICON VALLEY CHICAGO WASHINGTON, DC HOUSTON SEATTLE LONDON TOKYO MANNHEIM MOSCOW HAMBURG PARIS MUNICH SYDNEY HONG KONG BRUSSELS

ACKNOWLEDGMENT AND NOTICE OF APPEARANCE, on behalf of Appellant Capital Ventures International, Darby Financial Products, Prudential Investment Portfolios 2, Salix Capital US Inc. and Prudential Core Taxable Money Market Fund in 17-1569, Prudential Core Taxable Money Market Fund and Appellant Prudential Investment Portfolios 2 in 17-2360, FILED. Service date 09/19/2017 by CM/ECF.[2128547] [17-1569, 17-2360] [Entered: 09/19/2017 04:10 PM]

Case 17-1569, Document 255-1, 09/19/2017, 2128547, Page1 of 1 ACKNOWLEDGMENT AND NOTICE OE APPEARANCE Short Title; i"® Libor-Based Financial Instruments Antitrust Litigation Docket No.;iZ:155£. Lead Counsel of Record (name/firm) or Pro se Party (name): Daniel L. Brockett/Quinn Emanuel Urquhart & Sullivan, LLP Appearance for (partv/desiL'nation): Prudential Investment Portfolios 2, f/k/a Dryden Core Investment Fund o/b/o Prudential Core Short-Term Bond Fund and Prudential Core Taxable Money Market Fund; Darby Financial Product; Capital Ventures International: Salix Capital US Inc. DOCKET SHEET ACKNOWLEDGMENT/AMENDMENTS Caption as indicated is: (Q Correct (0) Incorrect. See attached caption page with corrections. Appellate Designation is: (0) Correct (I I) Incorrect. The following parties do not wish to participate in this appeal; Parties: (I [) Incorrect. Please change the following parties’ designations; Party Correct Designation Contact Information for Lead Counsel/Pro Se Party is: Q) Correct (0) Incorrect or Incomplete. As an e-filer, I have updated my contact information in the PACER "Manage My Account’’ screen. Name; Daniel L, Brockett Pirm; Quinn Emanuel Urquhart & Sullivan, LLP Address; Madison Avenue, 22nd Floor, New York, New York 10010 Telephone:849-7000_______________________________ Fax: 849-7100 Email-'^®ubrockett@quinnemanuel.com RELATED CASES (I I) This case has not been before this Court previously. (0) This case has been before this Court previously. The short title, docket number, and citation are;___________________ Gelboim et al. v. Bank of America Corporation et al., 13-3565, 823 F.3d 759 (2d Cir. 2016) (0 Matters related to this appeal or involving the same issue have been or presently are before this Court. The short titles, docket numbers, and citations are: See Attachment B. CERTIFICATION I certify that (0 I am admitted to practice in this Court and, if required by LR 46.1(a)(2), have renewed my admission on ______________________OR that (I I) I applied for admission on or renewal on ______________________. If the Court has not yet admitted me or approved my renewal, I have completed Addendum A. Signature of Lead Counsel of Record:/s/Daniel L. BrOCkett__________ __________________________________________ Type or Print Name: Daui®' L. Brockett_____________ __________________________________________________________________ OR Signature of pro se litigant: _____________________________________________________ _________________________________ Type or Print Name:____________________________________________________________________________________________ (I I) I am a pro se litigant who is not an attorney, o I am an incarcerated pro se litigant. Case 17-1569, Document 255-2, 09/19/2017, 2128547, Page1 of 1 ATTACHMENT A TO ACKNOWLEDGEMENT AND NOTICE OF APPEARANCE CAPTION CORRECTIONS FOR 17-1569 (RELATING TO 17-2360) Plaintiff’s correct name (all one party) should be: PRUDENTIAL INVESTMENT PORTFOLIOS 2, f/k/a DRYDEN CORE INVESTMENT FUND, o/b/o PRUDENTIAL CORE SHORT-TERM BOND FUND and PRUDENTIAL CORE TAXABLE MONEY MARKET FUND The following parties should be added as Defendants-Appellees (they are Defendants-Appellees in 17-2360): BARCLAYS PLC CITIGROUP FUNDING INC. CITIGROUP GLOBAL MARKETS CREDIT SUISSE SECURITIES (USA) LLC 01121-23648/9560522.1 Case 17-1569, Document 255-3, 09/19/2017, 2128547, Page1 of 2 ATTACHMENT B TO ACKNOWLEDGMENT AND NOTICE OF APPEARANCE RELATED CASES CASE N AME DOCKET APPELLANT(S) Gelboim et al. v. Bank of America Corp. et al. 13-3565 Ellen Gelboim, Linda Zacher, et al. Schwab Short-Term Bond Market Fund, et al. v. 17-1569 Schwab Short-Term Bond Market Fund; Schwab Total Bond Market Lloyds Banking Group plc, et al. Fund; Schwab U.S. Dollar Liquid Assets Fund; Schwab Money Market Fund; Schwab Value Advantage Money Fund; Schwab Retirement Advantage Money Fund; Schwab Investor Money Fund; Schwab Cash Reserves; Schwab Advisor Cash Reserves; Charles Schwab Bank, N.A.; Charles Schwab & Co., Inc.; Schwab YieldPlus Fund; Schwab YieldPlus Fund Liquidation Trust; The Charles Schwab Corporation. City of New Britain, et al. v. Lloyds Banking 17-1915 City of New Britain; Mayor and City Council of Baltimore; Vistra Group plc, et al. Energy Corporation; Yale University; Jennie Stuart Medical Center, Inc. Gelboim, et al. v. Credit Suisse Group AG, et al. 17-1989 Ellen Gelboim; Linda Zacher FTC Futures Fund PCC Ltd. v. Lloyds Banking 17-2056 FTC Futures Fund PCC Ltd.; FTC Futures Fund SICAV; Metzler Group plc, et al. Investment GmbH; 303030 Trading LLC; Atlantic Trading USA, LLC; Gary Francis; Nathaniel Haynes. Bay Area Toll Authority v. Bank of America 17-2343 Bay Area Toll Authority. Corporation, et al. National Credit Union Administration Board, et 17-2383 National Credit Union Administration Board. al. v. Credit Suisse Group AG, et al. The City of Philadelphia, et al. v. Bank of 17-2347 The City of Philadelphia; The Pennsylvania Intergovernmental America Corporation, et al. Cooperation Authority. Salix Capital US Inc. v. Banc of America 17-2351 Salix Capital US Inc. Securities LLC, et al. 17-2381 Darby Financial Products et al. v. Barclays 17-2352 Darby Financial Products; Capital Ventures International. Bank PLC, et al. City of Houston v. Bank of America Corporation, 17-2376 City of Houston et al. 1 Case 17-1569, Document 255-3, 09/19/2017, 2128547, Page2 of 2 California Public Plaintiffs v. Bank of America 17-2413 The Regents of the University of California; East Bay Municipal Utility Corporation, et al. District; San Diego Association of Governments; City of Richmond; City of Riverside; The County of Mendocino; County of Sacramento; County of San Diego; County of San Mateo and County of Sonoma; The Richmond Joint Powers Financing Authority; Successor Agency to the Richmond Community Redevelopment Agency; The Riverside Public Financing Authority; The San Mateo County Joint Powers Financing Authority; and David E. Sundstrom. 2

ACKNOWLEDGMENT AND NOTICE OF APPEARANCE, on behalf of Appellant City of Philadelphia and Pennsylvania Intergovernmental Cooperation Authority in 17-1569, 17-2347, FILED. Service date 09/19/2017 by CM/ECF.[2128558] [17-1569, 17-2347] [Entered: 09/19/2017 04:15 PM]

Case 17-1569, Document 256-1, 09/19/2017, 2128558, Page1 of 1 ACKNOWLEDGMENT AND NOTICE OE APPEARANCE Short Title: Libor-Based Financial Instruments Antitrust Litigation Docket No.: 17-1569 Lead Counsel of Record (name/firm) or Pro se Party (name): Steig D. Oison/Quinn Emanuel Urguhart & Suiiivan, LLP Appearance for (party/designation): The City of Philadelphia; Pennsylvania Intergovernmental Cooperation Authority/Plaintiffs-Appellants DOCKET SHEET ACKNOWLEDGMENT/AMENDMENTS Caption as indicated is: (T7T) Correct (1 I) Incorrect. See attached caption page with corrections. Appellate Designation is: (T7]) Correct o Incorrect. The following parties do not wish to participate in this appeal: Parties:_______________________ __________________________________ (I 1) Incorrect. Please change the following parties’ designations: Party Correct Designation Contact Information for Lead Counsel/Pro Se Party is: O) Correct (T7T) Incorrect or Incomplete. As an e-filer, I have updated my contact information in the PACER "Manage My Account’ screen. Name: Ste'S P-Qlson_________________ Firm: Quinn Emanuel Urquhart & Sullivan, LLP Address: ^1 Madison Avenue, 22nci Floor, New York, New York 10010 Telephon^l2-»19-70QO Pax: 212-849-7100 Email: steigolson@quinnemanuel.com RELATED CASES O This case has not been before this Court previously. (T7I) This case has been before this Court previously. The short title, docket number, and citation are:___ Gelboim et al. v. Bank of America Corporation et al., 13-3565, 823 F.3d 759 (2d Cir. 2016) (Ll) Matters related to this appeal or involving the same issue have been or presently are before this Court. The short titles, docket numbers, and citations are: See Attachment A.___________________________________________________ CERTIFICATION I certify that ([7]) I am admitted to practice in this Court and, if required by LR 46.1(a)(2), have renewed my admission on ______________________OR that (D I applied for admission on________________________________ or renewal on---------------------------------. If the Court has not yet admitted me or approved my renewal, 1 have completed Addendum A. Signature of Lead Counsel of Record:/s/Stelq D. OlSOn________________________________________________ ________ Type or Print Name: Steig D. Olson_____________________ OR ^ Signature of pro se litigant: ____________________ _________________________________________________________________ Type or Print Name:_____________________________ o I am a pro se litigant who is not an attorney, Oi am an incarcerated pro se litigant. Case 17-1569, Document 256-2, 09/19/2017, 2128558, Page1 of 2 ATTACHMENT B TO ACKNOWLEDGMENT AND NOTICE OF APPEARANCE RELATED CASES CASE N AME DOCKET APPELLANT(S) Gelboim et al. v. Bank of America Corp., et al. 13-3565 Ellen Gelboim, Linda Zacher, et al. Schwab Short-Term Bond Market Fund, et al. v. 17-1569 Schwab Short-Term Bond Market Fund; Schwab Total Bond Market Lloyds Banking Group plc, et al. Fund; Schwab U.S. Dollar Liquid Assets Fund; Schwab Money Market Fund; Schwab Value Advantage Money Fund; Schwab Retirement Advantage Money Fund; Schwab Investor Money Fund; Schwab Cash Reserves; Schwab Advisor Cash Reserves; Charles Schwab Bank, N.A.; Charles Schwab & Co., Inc.; Schwab YieldPlus Fund; Schwab YieldPlus Fund Liquidation Trust; The Charles Schwab Corporation. City of New Britain, et al. v. Lloyds Banking 17-1915 City of New Britain; Mayor and City Council of Baltimore; Vistra Group plc, et al. Energy Corporation; Yale University; Jennie Stuart Medical Center, Inc. Gelboim, et al. v. Credit Suisse Group AG, et al. 17-1989 Ellen Gelboim; Linda Zacher FTC Futures Fund PCC Ltd. v. Lloyds Banking 17-2056 FTC Futures Fund PCC Ltd.; FTC Futures Fund SICAV; Metzler Group plc, et al. Investment GmbH; 303030 Trading LLC; Atlantic Trading USA, LLC; Gary Francis; Nathaniel Haynes. Bay Area Toll Authority v. Bank of America 17-2343 Bay Area Toll Authority. Corporation, et al. National Credit Union Administration Board, et 17-2383 National Credit Union Administration Board. al. v. Credit Suisse Group AG, et al. Salix Capital US Inc. v. Banc of America 17-2351 Salix Capital US Inc. Securities LLC, et al. 17-2381 Darby Financial Products et al. v. Barclays 17-2352 Darby Financial Products; Capital Ventures International. Bank PLC, et al. Prudential Investment Portfolios 2 v. Bank of 17-2360 Prudential Investment Portfolios 2, FKA Dryden Core Investment America Corporation, et al. Fund, on behalf of Prudential Core Short-Term Bond Fund and Prudential Core Taxable Money Market Fund. 1 Case 17-1569, Document 256-2, 09/19/2017, 2128558, Page2 of 2 City of Houston v. Bank of America Corporation, 17-2376 City of Houston et al. California Public Plaintiffs v. Bank of America 17-2413 The Regents of the University of California; East Bay Municipal Utility Corporation, et al. District; San Diego Association of Governments; City of Richmond; City of Riverside; The County of Mendocino; County of Sacramento; County of San Diego; County of San Mateo and County of Sonoma; The Richmond Joint Powers Financing Authority; Successor Agency to the Richmond Community Redevelopment Agency; The Riverside Public Financing Authority; The San Mateo County Joint Powers Financing Authority; and David E. Sundstrom. 2

FRAP 26.1 CORPORATE DISCLOSURE STATEMENT, on behalf of Appellant Prudential Investment Portfolios 2, FILED. Service date 09/19/2017 by CM/ECF.[2128573] [17-1569] [Entered: 09/19/2017 04:21 PM]

Case 17-1569, Document 257, 09/19/2017, 2128573, Page1 of 2 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT IN RE: LIBOR-BASED FINANCIAL INSTRUMENTS Case No. 17-1569 ANTITRUST LITIGATION PRUDENTIAL INVESTMENT PORTFOLIOS 2, f/k/a DRYDEN CORE INVESTMENT FUND, o/b/o Case No. 17-2360 PRUDENTIAL CORE SHORT-TERM BOND FUND and PRUDENTIAL CORE TAXABLE MONEY MARKET FUND, Plaintiff-Appellant, v. BANK OF AMERICA CORPORATION, BANK OF AMERICA, N.A., BARCLAYS BANK PLC, BARCLAYS CAPITAL INC., BARCLAYS PLC, CITIBANK, N.A., CITIGROUP FUNDING INC., CITIGROUP GLOBAL MARKETS INC., CREDIT SUISSE AG, CREDIT SUISSE GROUP AG, CREDIT SUISSE SECURITIES (USA) LLC, CREDIT SUISSE (USA) INC., DEUTSCHE BANK AG, HSBC BANK PLC, HSBC HOLDINGS PLC, JPMORGAN CHASE & CO., JPMORGAN CHASE BANK, N.A., ROYAL BANK OF CANADA, RBC CAPITAL MARKETS, LLC, THE ROYAL BANK OF SCOTLAND PLC, UBS AG, and UBS SECURITIES LLC, Defendants-Appellees, CITIGROUP INC., HSBC FINANCE CORP., HSBC SECURITIES (USA) INC., HSBC USA INC., J.P. MORGAN SECURITIES LLC, f/k/a J.P. MORGAN SECURITIES INC., MERRILL LYNCH, PIERCE, FENNER & SMITH INC., f/k/a BANC OF AMERICA SECURITIES LLC, RBS SECURITIES INC., f/k/a GREENWICH CAPITAL MARKETS, INC., Defendants. Case 17-1569, Document 257, 09/19/2017, 2128573, Page2 of 2 SUPPLEMENTAL CORPORATE DISCLOSURE STATEMENT Pursuant to Rule 26.1(b) of the Federal Rules of Appellate Procedure, the undersigned counsel for Plaintiff-Appellant Prudential Investment Portfolios 2, f/k/a/Dryden Core Investment Fund, o/b/o Prudential Core Short-Term Bond Fund and Prudential Core Taxable Money Market Fund, certifies as follows: Prudential Investment Portfolios 2, f/k/a Dryden Core Investment Fund, o/b/o Prudential Core Short-Term Bond Fund and Prudential Core Taxable Money Market Fund (n/k/a Prudential Core Ultra Short Bond Fund) is a Delaware statutory trust not owned by any parent corporation. No publicly held corporation owns 10% or more of its stock. Dated: September 19, 2017 Respectfully submitted,/s/Daniel L. Brockett Daniel L. Brockett QUINN EMANUEL URQUHART & SULLIVAN, LLP 51 Madison Avenue, 22nd Floor New York, New York 10010 Tel: (212) 849-7000 danbrocket@quinnemanuel.com Attorneys for Prudential Investment Portfolios 2, f/k/a/Dryden Core Investment Fund, o/b/o Prudential Core Short-Term Bond Fund and Prudential Core Taxable Money Market Fund

ACKNOWLEDGMENT AND NOTICE OF APPEARANCE, on behalf of Appellant National Credit Union Administration Board in 17-1569, 17-2383, FILED. Service date 09/21/2017 by CM/ECF.[2130240] [17-1569, 17-2383] [Entered: 09/21/2017 10:25 AM]

Case 17-1569, Document 260, 09/21/2017, 2130240, Page1 of 2 ACKNOWLEDGMENT AND NOTICE OF APPEARANCE Short Title: In re LIBOR-Based Financial Instruments Antitrust Litigation Docket No.: 17-1569 (Lead), 17-2383 Lead Counsel of Record (name/firm) or Pro se Party (name): Andrew C. Shen/Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C. Appearance for (party/designation): National Credit Union Administration Board/Plaintiff-Appellant DOCKET SSHEET AC DOC ACKNOWLEDGMENT/AMENDMENTS OW DG/A D S Caption as indicated is: (✔) Correct () Incorrect. See attached caption page with corrections. Appellate Designation is: (✔) Correct () Incorrect. The following parties do not wish to participate in this appeal: Parties: () Incorrect. Please change the following parties= designations: Party Correct Designation Contact Information for Lead Counsel/Pro Se Party is: () Correct (✔) Incorrect or Incomplete. As an e-filer, I have updated my contact information in the PACER AManage My Account@screen. Name: Andrew C. Shen Firm: Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C. Address: 1615 M Street, NW, Suite 400, Washington, DC 20036 Telephone: (202) 326-7900 Fax: (202) 326-7999 Email: ashen@kellogghansen.com RELATED CASES () This case has not been before this Court previously. (✔) This case has been before this Court previously. The short title, docket number, and citation are: In re LIBOR-Based Financial Instruments Antitrust Litigation, No. 13-3636 (Lead Docket No.: 13-3565); 823 F.3d 759 (2d Cir. 2016) (✔) Matters related to this appeal or involving the same issue have been or presently are before this Court. The short titles, docket numbers, and citations are: The Charles Schwab Corp., et al. v. Bank of America Corp., et al., Docket No. 16-1189 (presently before this Court); see Attachment CERTIFICATION I certify that (✔) I am admitted to practice in this Court and, if required by LR 46.1(a)(2), have renewed my admission on OR that () I applied for admission on or renewal on. If the Court has not yet admitted me or approved my renewal, I have completed Addendum A. Signature of Lead Counsel of Record:/s/Andrew C. Shen Type or Print Name: Andrew C. Shen OR Signature of pro se litigant: Type or Print Name: () I am a pro se litigant who is not an attorney. () I am an incarcerated pro se litigant. Case 17-1569, Document 260, 09/21/2017, 2130240, Page2 of 2 ATTACHMENT TO ACKNOWLEDGMENT AND NOTICE OF APPEARANCE RELATED CASES Docket No. Case Name 17-1569 Schwab Short-Term Bond Market Fund, et al. v. Lloyds Banking Group plc, et al. 17-1915 City of New Britain, et al. v. Lloyds Banking Group plc, et al. 17-1989 Gelboim, et al. v. Credit Suisse Group AG, et al. 17-2056 FTC Futures Fund PCC Ltd. v. Lloyds Banking Group plc, et al. 17-2343 Bay Area Toll Authority v. Bank of America Corporation, et al. 17-2347 City of Philadelphia, et al. v. Bank of America Corp., et al. 17-2351 Salix Capital US Inc. v. Banc of America Securities LLC, et al. 17-2381 17-2352 Darby Financial Products, et al. v. Barclays Bank PLC, et al. 17-2360 Prudential Investment Portfolios 2 v. Bank of America Corporation, et al. 17-2376 City of Houston v. Bank of America Corporation, et al. 17-2413 California Public Plaintiffs v. Bank of America Corporation, et al.

NOTICE OF APPEARANCE AS ADDITIONAL COUNSEL, on behalf of Appellant National Credit Union Administration Board in 17-1569, 17-2383, FILED. Service date 09/21/2017 by CM/ECF. [2130249] [17-1569, 17-2383] [Entered: 09/21/2017 10:29 AM]

Case 17-1569, Document 261, 09/21/2017, 2130249, Page1 of 1 NOTICE OF APPEARANCE FOR SUBSTITUTE, ADDITIONAL, OR AMICUS COUNSEL Short Title: In re LIBOR-Based Financial Instruments Antitrust Litigation _____ Docket No.: 17-1569 ________ (L) Substitute, Additional, or Amicus Counsel’s Contact Information is as follows: Name: David C. Frederick Firm: Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C. Address: 1615 M Street, N.W., Suite 400 Telephone: (202) 326-7951 ___________________________ Fax: (202) 326-7999 E-mail: dfrederick@kellogghansen.com Appearance for: National Credit Union Administration Board/Plaintiff-Appellant (party/designation) Select One: G Substitute counsel (replacing lead counsel:) (name/firm) G Substitute counsel (replacing other counsel: _______) (name/firm) ✔ G Additional counsel (co-counsel with: Andrew C. Shen/Kellogg, Hansen, Todd, Figel & Frederick) (name/firm) G Amicus (in support of:) (party/designation) CERTIFICATION I certify that: ✔ G I am admitted to practice in this Court and, if required by Interim Local Rule 46.1(a)(2), have renewed my admission on OR G I applied for admission on. Signature of Counsel:/s/David C. Frederick Type or Print Name: David C. Frederick

CAPTION, BBA Enterprises, Ltd., BBA Libor, Ltd. and British Bankers Association have been changed from Defendants to Defendants-Appellees, AMENDED.[2133309] [17-1569, 17-2351] [Entered: 09/26/2017 11:03 AM]

Case 17-1569, Document 263, 09/26/2017, 2133309, Page1 of 1 United States Court of Appeals for the Second Circuit Thurgood Marshall U.S. Courthouse 40 Foley Square New York, NY 10007 ROBERT A. KATZMANN CATHERINE O'HAGAN WOLFE CHIEF JUDGE CLERK OF COURT Date: September 26, 2017 DC Docket #: 11-md-2262 Docket #: 17-1569cv DC Court: SDNY (NEW YORK Short Title: In Re: Libor-Based Financial CITY)DC Docket #: 11-cv-6409 DC Court: SDNY (NEW YORK CITY)DC Docket #: 11-cv-6411 DC Court: SDNY (NEW YORK CITY)DC Docket #: 11-cv-6412 DC Court: SDNY (NEW YORK CITY)DC Docket #: 13-cv-4018 DC Court: SDNY (NEW YORK CITY)DC Docket #: 11-md-2262 DC Court: SDNY (NEW YORK CITY) DC Judge: Buchwald AMENDED CAPTION NOTICE As noted on the docket sheet, the caption has been changed. If the brief has been filed, six copies of a revised brief cover accurately reflecting the change in official caption must be submitted within 14 days of this notice. Inquiries regarding this case may be directed to 212-857-8577.

NOTICE OF APPEARANCE AS ADDITIONAL COUNSEL, on behalf of Appellant Charles Schwab & Co., Inc., Charles Schwab Bank, N.A., Schwab Advisor Cash Reserves, Schwab Cash Reserves, Schwab Investor Money Fund, Schwab Money Market Fund, Schwab Retirement Advantage Money Fund, Schwab Short-Term Bond Market Fund, Schwab Total Bond Market Fund, Schwab U.S. Dollar Liquid Assets Fund, Schwab Value Advantage Money Fund, Schwab YieldPlus Fund, Schwab YieldPlus Fund Liquidation Trust and The Charles Schwab Corporation, FILED. Service date 10/10/2017 by CM/ECF. [2142980] [17-1569] [Entered: 10/10/2017 09:41 AM]

Case 17-1569, Document 264, 10/10/2017, 2142980, Page1 of 2 Case 17-1569, Document 264, 10/10/2017, 2142980, Page2 of 2 LIST OF PLAINTIFFS-APPELLANTS The Charles Schwab Corporation Charles Schwab Bank, N.A. Charles Schwab & Co., Inc. Schwab Short-Term Bond Market Fund Schwab Total Bond Market Fund Schwab U.S. Dollar Liquid Assets Fund Schwab Money Market Fund Schwab Value Advantage Money Fund Schwab Retirement Advantage Money Fund Schwab Investor Money Fund Schwab Cash Reserves Schwab Advisor Cash Reserves Schwab YieldPlus Fund Schwab YieldPlus Fund Liquidation Trust

MOTION, to extend time, on behalf of Appellant Charles Schwab & Co., Inc., Charles Schwab Bank, N.A., Schwab Advisor Cash Reserves, Schwab Cash Reserves, Schwab Investor Money Fund, Schwab Money Market Fund, Schwab Retirement Advantage Money Fund, Schwab Short-Term Bond Market Fund, Schwab Total Bond Market Fund, Schwab U.S. Dollar Liquid Assets Fund, Schwab Value Advantage Money Fund, Schwab YieldPlus Fund, Schwab YieldPlus Fund Liquidation Trust and The Charles Schwab Corporation in 17-1569, Appellant Ellen Gelboim and Linda Zacher in 17-1989, FILED. Service date 10/10/2017 by CM/ECF. [2144005] [17-1569, 17-1915, 17-1989, 17-2056, 17-2343, 17-2347, 17-2351, 17-2352, 17-2360, 17-2376, 17-2381, 17-2383, 17-2413] [Entered: 10/10/2017 09:02 PM]

Case 17-1569, Document 270, 10/10/2017, 2144005, Page1 of 28 Case 17-1569, Document 270, 10/10/2017, 2144005, Page2 of 28 ATTACHMENT #1: LIST OF MOVING PARTIES (PLAINTIFFS-APPELLANTS) Dkt. #17-1569 Schwab Money Market Fund Schwab Value Advantage Money Fund Schwab Retirement Advantage Money Fund Schwab Investor Money Fund Schwab Cash Reserves Schwab Advisor Cash Reserves Schwab YieldPlus Fund Schwab YieldPlus Fund Liquidation Trust Charles Schwab Bank, N.A. Charles Schwab & Co., Inc. The Charles Schwab Corporation Schwab Short-Term Bond Market Fund Schwab Total Bond Market Fund Schwab U.S. Dollar Liquid Assets Fund Dkt. #17-1915 Mayor and City Council of Baltimore City of New Britain Vistra Energy Corporation Yale University Jennie Stuart Medical Center, Inc. Dkt. #17-1989 Ellen Gelboim Linda Zacher Dkt. #17-2056 Metzler Investment GmbH FTC Futures Funds SICAV FTC Futures Fund PCC Ltd. Atlantic Trading USA, LLC 303030 Trading LLC Gary Francis Nathaniel Haynes Dkt. #17-2343 Bay Area Toll Authority Dkt. #17-2347 The City of Philadelphia The Pennsylvania Intergovernmental Cooperation Authority 1 Case 17-1569, Document 270, 10/10/2017, 2144005, Page3 of 28 Dkt. #17-2351 Salix Capital US, Inc. Dkt. #17-2352 Darby Financial Products Capital Ventures International Dkt. #17-2360 Prudential Investment Portfolios 2 Dkt. #17-2376 City of Houston Dkt. #17-2381 Salix Capital US, Inc. Dkt. #17-2383 National Credit Union Administration Board Dkt. #17-2413 California Public Plaintiffs San Diego Association of Governments City of Richmond City of Riverside County of Mendocino County of Sacramento County of San Diego County of San Mateo County of Sonoma Regents of the University of California East Bay Municipal Utility District Richmond Joint Powers Financing Authority Successor Agency to the Richmond Community Redevelopment Agency Riverside Public Financing Authority The San Mateo County Joint Powers Financing Authority David E. Sundstrom 2 Case 17-1569, Document 270, 10/10/2017, 2144005, Page4 of 28 ATTACHMENT #2: LIST OF OPPOSING PARTIES AND THEIR ATTORNEYS BANK OF AMERICA CORPORATION; BANK OF AMERICA, N.A.; and MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED (f/k/a BANC OF AMERICA SECURITIES, LLC) Arthur J. Burke Paul S. Mishkin Adam G. Mehes DAVIS POLK & WARDWELL 450 Lexington Avenue New York, NY 10017 Telephone: (212) 450-4000 Facsimile: (212) 450-3352 arthur.burke@davispolk.com paul.mishkin@davispolk.com adam.mehes@davispolk.com BARCLAYS BANK PLC and BARCLAYS CAPITAL INC. Jonathan D. Schiller Leigh M. Nathanson BOIES, SCHILLER & FLEXNER LLP 575 Lexington Avenue New York, NY 10022 Telephone: (212) 446-2300 Facsimile: (212) 446-2350 jschiller@bsfllp.com lnathanson@bsfllp.com Michael A. Brille BOIES, SCHILLER & FLEXNER LLP 1401 New York Avenue, NW Washington, DC 20005 Telephone: (202) 237-2727 Facsimile: (202) 237-6131 mbrille@bsfllp.com 1 Case 17-1569, Document 270, 10/10/2017, 2144005, Page5 of 28 CITIGROUP INC.; CITIBANK, N.A.; CITIGROUP FINANCIAL PRODUCTS, INC.; and CITI SWAPCO INC. Alan M. Wiseman COVINGTON & BURLING LLP 1201 Pennsylvania Avenue, NW Washington, DC 20004 Telephone: (202) 662-5457 Facsimile: (202) 778-5457 awiseman@cov.com Andrew A. Ruffino COVINGTON & BURLING LLP 620 Eighth Avenue New York, NY 10018-1405 Telephone: (212) 841-1000 Facsimile: (212) 841-1010 aruffino@cov.com COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A. (n/k/a COÖPERATIEVE RABOBANK U.A.) and RABOBANK GROUP David R. Gelfand Robert C. Hora Mark D. Villaverde Jonathan Ohring MILBANK, TWEED, HADLEY & MCCLOY LLP 28 Liberty Street New York, NY 10005 Telephone: (212) 530-5000 Facsimile: (212) 822-5520 dgelfand@milbank.com rhora@milbank.com mvillaverde@milbank.com johring@milbank.com 2 Case 17-1569, Document 270, 10/10/2017, 2144005, Page6 of 28 CREDIT SUISSE AG; CREDIT SUISSE GROUP AG; CREDIT SUISSE (USA), INC.; CREDIT SUISSE INTERNATIONAL; and CREDIT SUISSE GROUP INTERNATIONAL Herbert S. Washer Elai E. Katz Joel Kurtzberg Jason M. Hall Adam Mintz CAHILL GORDON & REINDEL LLP 80 Pine Street New York, NY 10005 Telephone: (212) 701-3000 Facsimile: (212) 269-5420 hwasher@cahill.com ekatz@cahill.com jkurtzberg@cahill.com jhall@cahill.com amintz@cahill.com DEUTSCHE BANK AG Moses Silverman Aidan Synnott PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 1285 Avenue of the Americas New York, NY 10019 Telephone: (212) 373-3355 Facsimile: (212) 492-0355 msilverman@paulweiss.com asynnott@paulweiss.com 3 Case 17-1569, Document 270, 10/10/2017, 2144005, Page7 of 28 HSBC BANK PLC; HSBC HOLDINGS PLC; HSBC SECURITIES (USA) INC.; HSBC BANK USA, N.A.; HSBC FINANCE CORPORATION; HSBC USA, INC.; and THE HONG KONG AND SHANGHAI BANKING CORPORATION LTD. Gregory T. Casamento R. James DeRose, III LOCKE LORD LLP Brookfield Place 200 Vesey Street, 20th Floor New York, NY 10281 Telephone: (212) 415-8600 Facsimile: (212) 812-8379 edeyoung@lockelord.com gcasamento@lockelord.com rderose@lockelord.com Roger B. Cowie LOCKE LORD LLP 2200 Ross Avenue, Suite 2200 Dallas, TX 75201 Telephone: (214) 740-8614 Facsimile: (214) 740-8800 rcowie@lockelord.com Julia C. Webb J. Matthew Goodin LOCKE LORD LLP 111 South Wacker Drive Telephone: (312) 443-0404 Facsimile: (312) 896-6404 jwebb@lockelord.com jmgoodin@lockelord.com Jack Ballard BALLARD & LITTLEFIELD, LLP 3700 Buffalo Speedway, Suite 250 Houston, TX 77098 Telephone: (713) 403-6400 4 Case 17-1569, Document 270, 10/10/2017, 2144005, Page8 of 28 JPMORGAN CHASE & CO.; JPMORGAN CHASE BANK, N.A.; and J.P. MORGAN BANK DUBLIN PLC (f/k/a BEAR STEARNS BANK PLC) Thomas C. Rice Paul C. Gluckow Alan C. Turner Alexander N. Li SIMPSON THACHER & BARTLETT LLP 425 Lexington Avenue New York, NY 10017 Telephone: (212) 455-2000 Facsimile: (212) 455-2502 trice@stblaw.com pgluckow@stblaw.com aturner@stblaw.com zander.li@stblaw.com Abram J. Ellis SIMPSON THACHER & BARTLETT LLP 900 G Street, NW Washington, DC 20001 Telephone: (202) 636-5500 Facsimile: (202) 636-5502 aellis@stblaw.com LLOYDS BANKING GROUP PLC; LLOYDS BANK PLC; and HBOS PLC Marc J. Gottridge Lisa J. Fried HOGAN LOVELLS US LLP 875 Third Avenue New York, NY 10022 Telephone: (212) 918-3000 Facsimile: (212) 918-3100 marc.gottridge@hoganlovells.com lisa.fried@hoganlovells.com 5 Case 17-1569, Document 270, 10/10/2017, 2144005, Page9 of 28 ROYAL BANK OF CANADA and RBC CAPITAL MARKETS LLC Robert T. Smith Christian T. Kemnitz KATTEN MUCHIN ROSENMAN, LLP 525 West Monroe Street Chicago, IL 60661 Telephone: (312) 902-5200 Facsimile: (312) 902-1061 robert.smith@kattenlaw.com christian.kemnitz@kattenlaw.com THE BANK OF TOKYO-MITSUBISHI UFJ, LTD. Daryl A. Libow Christopher M. Viapiano SULLIVAN & CROMWELL LLP 1700 New York Avenue, N.W., Suite 700 Washington, DC 20006-5215 Telephone: (202) 956-7500 Facsimile: (202) 293-6330 libowd@sullcrom.com viapianoc@sullcrom.com THE NORINCHUKIN BANK Andrew W. Stern Alan M. Unger Thomas A. Paskowitz SIDLEY AUSTIN LLP 787 Seventh Avenue New York, NY 10019 Telephone: (212) 839-5300 Facsimile: (212) 839-5599 astern@sidley.com aunger@sidley.com tpaskowitz@sidley.com 6 Case 17-1569, Document 270, 10/10/2017, 2144005, Page10 of 28 THE ROYAL BANK OF SCOTLAND GROUP PLC and THE ROYAL BANK OF SCOTLAND PLC David S. Lesser WILMER CUTLER PICKERING HALE AND DORR LLP 7 World Trade Center New York, NY 10007 Telephone: (212) 230-8851 Facsimile: (212) 230-8888 david.lesser@wilmerhale.com SOCIETE GENERALE S.A. Steven Wolowitz Henninger S. Bullock Andrew J. Calica MAYER BROWN LLP 1221 Avenue of the Americas New York, NY 10020-1001 Telephone: (212) 506-2500 Facsimile: (212) 262-1910 swolowitz@mayerbrown.com hbullock@mayerbrown.com acalica@mayerbrown.com UBS AG; UBS SECURITIES LLC; and UBS LIMITED Peter Sullivan Lawrence J. Zweifach Jefferson E. Bell Eric J. Stock GIBSON, DUNN & CRUTCHER, LLP 200 Park Avenue, 47th Floor New York, NY 10166 Telephone: (212) 351-4000 Facsimile: (212) 351-4035 psullivan@gibsondunn.com lzweifach@gibsondunn.com jbell@gibsondunn.com estock@gibsondunn.com 7 Case 17-1569, Document 270, 10/10/2017, 2144005, Page11 of 28 WESTLB AG (n/k/a PORTIGON AG) and WESTDEUTSCHE IMMOBILIENBANK AG Christopher M. Paparella HUGHES HUBBARD & REED LLP One Battery Park Plaza New York, NY 10004 Telephone: (212) 837-6000 Facsimile: (212) 422-4726 Chris.Paparella@hugheshubbard.com BRITISH BANKERS’ ASSOCIATION; BBA ENTERPRISES LTD.; and BBA LIBOR LTD. Jeff G. Hammel LATHAM & WATKINS LLP 885 Third Avenue New York, NY 10022 Telephone: (212) 906-1200 Facsimile: (212)-751-4864 jeff.hammel@lw.com 8 Case 17-1569, Document 270, 10/10/2017, 2144005, Page12 of 28 17-1569 (L) 17-1915 (CON), 17-1989 (CON), 17-2056 (CON), 17-2343 (CON), 17-2347 (CON), 17-2351 (CON), 17-2352 (CON), 17-2360 (CON), 17-2376 (CON), 17-2381 (CON), 17-2383 (CON), 17-2413 (CON) United States Court of Appeals for the Second Circuit IN RE LIBOR-BASED FINANCIAL INSTRUMENTS ANTITRUST LITIGATION (Caption Continued on the Following Page) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK MOTION TO EXTEND THE DEADLINE FOR FILING PLAINTIFFS-APPELLANTS’ OPENING BRIEF GOLDSTEIN & RUSSELL, P.C. Thomas C. Goldstein Eric Citron Charles H. Davis 7475 Wisconsin Ave., Suite 850 Bethesda, MD 20814 Tel.: (202) 362-0636 tg@goldsteinrussell.com ecitron@goldsteinrussell.com cdavis@goldsteinrussell.com Counsel for Plaintiffs-Appellants in Dkt. #17-1569 and Dkt. #17-1989 Case 17-1569, Document 270, 10/10/2017, 2144005, Page13 of 28 Schwab Short-Term Bond Market Fund, Schwab Total Bond Market Fund, Schwab U.S. Dollar Liquid Assets Fund, Schwab Money Market Fund, Schwab Value Advantage Money Fund, Schwab Retirement Advantage Money Fund, Schwab Investor Money Fund, Schwab Cash Reserves, Schwab Advisor Cash Reserves, Charles Schwab Bank, N.A., Charles Schwab & Co., Inc., Schwab YieldPlus Fund, Schwab YieldPlus Fund Liquidation Trust, The Charles Schwab Corporation, City of New Britain, on behalf of itself and all others similarly situated, Mayor and City Council of Baltimore, City of Houston, Vistra Energy Corporation, Yale University, Jennie Stuart Medical Center, Inc., FTC Futures Fund PCC Ltd, on behalf of themselves and all others similarly situated, National Credit Union Administration Board, as Liquidating Agent of U.S. Central Federal Credit Union, Western Corporate Federal Credit Union, Members United Corporate Federal Credit Union, Southwest Corporate Federal Credit Union, and Constitution Corporate Federal Credit Union, Pennsylvania Intergovernmental Cooperation Authority, City of Philadelphia, Darby Financial Products, Salix Capital US Inc., Capital Ventures International, Prudential Investment Portfolios 2, FKA Dryden Core Investment Fund, on behalf of Prudential Core Short-Term Bond Fund, Bay Area Toll Authority, California Public Plaintiffs, Linda Zacher, Ellen Gelboim, on behalf of herself and all others similarly situated, Gary Francis, Metzler Investment GmbH, on behalf of itself and all others similarly situated, 303030 Trading LLC, Atlantic Trading USA, LLC, FTC Futures Fund SICAV, on behalf of themselves and all others similarly situated, Nathaniel Haynes, County of Sonoma, The San Mateo County Joint Powers Financing Authority, Richmond Joint Powers Financing Authority, Successor Agency to the Richmond Community Redevelopment Agency, Riverside Public Financing Authority, David E. Sundstrom, in his official capacity as Treasurer of the county of Sonoma for and on behalf of the Sonoma County Treasury Pool Investment, East Bay Municipal Utility District, Regents of the University of California, San Diego Association of Governments, City of Richmond, City of Riverside, County of Mendocino, County of Sacramento, County of San Diego, County of San Mateo, Plaintiffs-Appellants, – v. – Lloyds Banking Group plc, Bank of America Corporation, The Royal Bank of Scotland Group PLC, Citibank, N.A., Credit Suisse Group AG, Deutsche Bank AG, JPMorgan Chase & Co., The Norinchukin Bank, UBS AG, HBOS plc, Royal Bank of Canada, HSBC Bank PLC, Citigroup Inc., Cooperatieve Rabobank U.A., FKA Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., JPMorgan Chase Bank, N.A., The Bank of Tokyo-Mitsubishi UFJ, Ltd., Bank of America, N.A., Case 17-1569, Document 270, 10/10/2017, 2144005, Page14 of 28 Barclays Bank PLC, WestDeutsche ImmobilienBank AG, Portigon AG, FKA WestLB AG, HSBC Holdings PLC, WestLB AG, Societe Generale, Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., Credit Suisse International, Credit Suisse (USA), Inc., The Royal Bank of Scotland PLC, Credit Suisse AG, HSBC Securities (USA) Inc., HSBC Bank USA, N.A., HSBC Finance Corporation, Barclays Capital Inc., HSBC USA, Inc., The Hong Kong and Shanghai Banking Corporation Ltd., RBC Capital Markets LLC, Bank of America N.A., Rabobank Group, UBS Securities LLC, Citi Swapco Inc., BBA Enterprises, Ltd., BBA Libor, Ltd., British Bankers’ Association, Merrill Lynch, Pierce, Fenner & Smith Incorporated, FKA Banc of America Securities, LLC, Citigroup Financial Products, Inc., J.P. Morgan Bank Dublin PLC, FKA Bear Stearns Bank PLC, UBS Limited, Credit Suisse Group International, Defendants-Appellees. Case 17-1569, Document 270, 10/10/2017, 2144005, Page15 of 28 Plaintiffs-appellants in this matter (listed in Attachment #1 to the accompanying motion information statement) hereby respectfully request an extension of 21 days to the existing deadline for the filing of their opening briefs, from October 20, 2017 to November 10, 2017. This request, which defendants-appellees do not oppose, is prompted by extraordinary circumstances, and good cause exists for the relief requested. In particular, all the plaintiff groups have recently agreed to work with new counsel, Goldstein & Russell, to coordinate the drafting of joint briefs on behalf of all the plaintiff-appellant groups involved, and those groups are engaged in extraordinary efforts to consolidate their separate arguments to reduce the burden on this Court in addressing these consolidated appeals. New counsel also faces a set of conflicting filing deadlines, and requires additional time to prepare a brief that fully coordinates the plaintiffs’ arguments and fully develops the multiple issues presented in this appeal. Those issues further are procedurally complex—as different plaintiffs have proceeded on different tracks before the district court, creating an extensive record. Counsel thus requires additional time to prepare a complete and succinct set of briefs that will be of the most use to the Court. 1 Case 17-1569, Document 270, 10/10/2017, 2144005, Page16 of 28 BACKGROUND Beginning in April 2011, dozens of actions were filed in courts throughout the United States against defendants, alleging manipulation of U.S. dollar LIBOR. Pursuant to orders from the Judicial Panel on Multidistrict Litigation, the actions were centralized in an MDL proceeding in the United States District Court for the Southern District of New York before the Honorable Naomi Reice Buchwald. E.g., In re LIBOR-Based Fin. Instruments Antitrust Litig., 802 F. Supp. 2d 1380, 1381 (J.P.M.L. 2011). Following a favorable resolution for plaintiffs in the Supreme Court, see Gelboim v. Bank of Am. Corp., 135 S. Ct. 897 (2015), this Court entertained an appeal by the plaintiffs with respect to the district court’s first dismissal of their antitrust claims, which the Court overturned. See Gelboim v. Bank of Am. Corp., 823 F.3d 765 (2d Cir. 2016). On remand, defendants again moved to dismiss plaintiffs’ antitrust claims, this time for lack of personal jurisdiction pursuant to Rule 12(b)(2) and for lack of antitrust standing pursuant to Rule 12(b)(6). In a December 20, 2016 memorandum opinion, the district court granted that motion in large part, completely dismissing claims by certain plaintiffs, and preserving only certain claims against certain defendants with respect to other plaintiffs. In re LIBOR-Based Fin. Instruments Antitrust Litig., No. 11 MDL 2262 (NRB), 2016 WL 7378980 (S.D.N.Y. Dec. 20, 2016) ("LIBOR VI"). 2 Case 17-1569, Document 270, 10/10/2017, 2144005, Page17 of 28 Additionally, while the first appeal was still pending, the district court used similar reasoning to dismiss all of the claims made by the Schwab plaintiffs on personal jurisdiction grounds. See In re LIBOR-Based Fin. Instruments Antitrust Litig., No. 11 MDL 2262 (NRB), 2015 WL 6243526 (S.D.N.Y. Oct. 20, 2015) ("LIBOR IV"), and this Court heard oral argument in the appeal resulting from that dismissal on September 25, 2017. After LIBOR VI resulted in the dismissal of Schwab’s antitrust claims in their entirety, Schwab appealed as of right. See Dkt. #17-1569. The district court then granted Rule 54(b) partial final judgments to at least 20 other MDL plaintiff groups with respect to dismissals of antitrust claims in LIBOR VI. These additional plaintiffs include three putative classes and 17 non-class (i.e., "direct action") plaintiff families. All of these appellants have related and overlapping arguments regarding the district court’s personal jurisdiction decision, and while only two sets of appellants (the Schwab and Gelboim plaintiffs) have an active appeal regarding the district court’s antitrust standing determination, that decision is of interest to other plaintiffs as well. On August 24, 2017, this Court granted the parties’ joint motion to consolidate all appeals (Dkt. #17-1569, 17-1915, 17-1989, 17-2056, 17-2343, 17-2347, 17-2351, 17-2352, 17-2360, 17-2376, 17-2381, 17-2383, 17-2413) and set a due date of October 20, 2017 for appellants’ opening briefs. By 3 Case 17-1569, Document 270, 10/10/2017, 2144005, Page18 of 28 agreement, that order provides that the appellants will file two briefs: one full-length brief encompassing all of the appellants’ arguments on personal jurisdiction, and one somewhat shorter brief encompassing the Schwab and Gelboim appellants’ arguments regarding antitrust standing. REQUEST FOR EXTENSION OF TIME As noted above, extraordinary circumstances justify the unopposed extension request here, for two reasons. First is the recent tasking of new counsel with the responsibility of coordinating and filing the joint briefing in this case, which requires extraordinary efforts to avoid repetition, and to minimize the number of independent issues this Court might be required to consider. Second is counsel’s extensive case conflicts over the next month. And third is the size of the record in this case, as well as its interactions with active appeals and ongoing proceedings in the district court. The additional time requested is short, will not prejudice any party or the Court, and is likely to produce arguments that are more succinct and easier for this Court to decide in this multi-party appeal. Accordingly, granting the requested extension is appropriate and in the interests of the litigants and the Court. 1. Undersigned counsel (Goldstein & Russell, P.C.) has represented certain plaintiffs in this overarching matter in two previous appeals in this Court. See Gelboim (Dkt. #13-3565); Schwab (Dkt. #16-1189). Each plaintiff 4 Case 17-1569, Document 270, 10/10/2017, 2144005, Page19 of 28 also has individual counsel, however, and while undersigned counsel has acted in the past to coordinate the arguments being advanced on behalf of multiple parties in this matter, they have no active retention relationship with several of the groups of plaintiffs appealing in the present case. Goldstein & Russell was only recently tasked with the coordination role this extraordinary, multi-plaintiff appeal requires, and while existing counsel for the individual plaintiffs have been diligently researching and drafting elements of the briefing in this case, the task that remains for new counsel is quite substantial. In particular, it is clear that while the arguments for the plaintiffs substantially overlap, the points supporting various groups are not necessarily identical, and close coordination among the plaintiffs will be necessary to present these issues most clearly to the Court. Because this work requires an iterative process and time for individual counsel for each plaintiff group to review any draft, it is necessarily time consuming. It is, moreover, strongly in the interest of the Court that adequate time and attention be devoted to this process. While the plaintiffs could each argue their own points separately, that would substantially complicate the presentation of this case to the Court, and the task confronting it in rendering a decision. Thus, the plaintiffs have, for the Court’s benefit, undertaken to submit only a single brief on personal jurisdiction and a single, separate brief 5 Case 17-1569, Document 270, 10/10/2017, 2144005, Page20 of 28 on antitrust standing, and the very short extension requested is necessary to effectuate that process. 2. In addition to being only recently retained to coordinate the briefing in this proceeding, Goldstein & Russell has faced and continues to face an extraordinary set of scheduling conflicts over the recent and coming period, further providing good cause for the requested extension. In particular, counsel has filed a petition for certiorari on behalf of South Dakota in South Dakota v. Wayfair, Inc. (Dkt. #17-494) (filed Oct. 2, 2017) on an extraordinarily expedited schedule, a petition for certiorari in AMCI Holdings, Inc. v. CBF Industria de Gusa S/A (Dkt. #17-481) (filed Sept. 28, 2017), a reply brief in support of certiorari in Marilley v. Bonham (Dkt. #16-1391) (filed Sept. 20, 2017), an opening brief on the merits in a complicated environmental case in the D.C. Circuit, Western Organization of Resource Councils v. Zinke (Dkt. #15-5294) (filed Sept. 15, 2017); prepared for and presented oral argument in this Court in LIBOR IV (Dkt. #16-1189) (argued Sept. 25, 2017); will file a brief on the merits in the Supreme Court in Cyan, Inc. v. Beaver County Employees Retirement Fund (Dkt. #15-1439) and a response brief on the merits in the Eleventh Circuit, Hirsch v. Jupiter Golf Club, LLC (Dkt. #17-10939) on Oct. 13, 2017; will file a petition for certiorari in Mirowski Family Ventures, LLC v. Medtronic, Inc. (Dkt. #17A197) on Oct. 27, 2017; and is preparing for a 6 Case 17-1569, Document 270, 10/10/2017, 2144005, Page21 of 28 complex mediation in the Ninth Circuit in Petro Star v. BP Oil Supply Co. (Dkt. #16-35470) on Oct. 30, 2017. This unusually extensive set of closely scheduled matters necessitates the brief extension requested. 3. Finally, the unusual procedural posture of this case presents good cause for the extension requested. The district court ruled without jurisdictional discovery, but class-action discovery has now proceeded, although on behalf of only some appellants. Goldstein & Russell must negotiate a broad-ranging protective order and the different procedural postures of the different plaintiff groups before even being able to review the complete record in the case. The arguments presented here also relate to the positions argued in the briefing and recent oral argument in Schwab (Dkt. #16-1189) and as discussed in that argument, the omnibus, generalized nature of some of the district court’s rulings in this case presents an additional complication. The short extension requested will benefit the parties and the Court by allowing counsel the time necessary to refine succinct arguments and present this Court with appropriately focused questions for its (de novo) review. CONCLUSION For the foregoing reasons, the requested extension to file the plaintiffs-appellants’ opening briefs by November 10, 2017 should be granted. Dated: October 10, 2017 Respectfully submitted, 7 Case 17-1569, Document 270, 10/10/2017, 2144005, Page22 of 28 GOLDSTEIN & RUSSELL, P.C. LIEFF CABRASER HEIMANN & BERNSTEIN, LLP By:/s/Eric Citron Thomas C. Goldstein By:/s/Steven E. Fineman Eric Citron Steven E. Fineman Charles H. Davis Michael J. Miarmi 7475 Wisconsin Ave., Suite 850 250 Hudson Street, 8th Floor Bethesda, MD 20814 New York, NY 10013-1413 Tel.: (202) 362-0636 Tel.: (212) 355-9500 tg@goldsteinrussell.com ecitron@goldsteinrussell.com Brendan P. Glackin cdavis@goldsteinrussell.com 275 Battery Street, 29th Floor San Francisco, CA 94111-3339 Counsel for Plaintiffs-Appellants The Tel.: (415) 956-1000 Charles Schwab Corporation, Charles Schwab Bank, N.A., Charles Schwab & Counsel for the Schwab Plaintiffs (Dkt. Co., Inc., Schwab Money Market Fund, #17-1569); and Plaintiff-Appellant Bay Schwab U.S. Dollar Liquid Assets Fund, Area Toll Authority (Dkt. #17-2343) Schwab Value Advantage Money Fund, Schwab Retirement Advantage Money Fund, Schwab Investor Money Fund, Schwab Cash Reserves, Schwab Advisor Cash Reserves, Schwab Short-Term Bond Market Fund, Schwab Total Bond Market Fund, Schwab YieldPlus Fund, and Schwab YieldPlus Fund Liquidation Trust (collectively, the "Schwab Plaintiffs") (Dkt. #17-1569); and the Bondholder Plaintiffs (Dkt. #17-1989) SUSMAN GODFREY LLP HAUSFELD LLP By:/s/William C. Carmody By:/s/Michael D. Hausfeld William C. Carmody Michael D. Hausfeld Arun Subramanian Hilary K. Scherrer Seth Ard Nathaniel C. Giddings Geng Chen Scott Martin 1301 Avenue of the Americas 1700 K St. NW, Suite 650 32nd Floor Washington, DC 20006 New York, NY 10019 Tel.: (202) 540-7200 8 Case 17-1569, Document 270, 10/10/2017, 2144005, Page23 of 28 Tel.: (212) 336-8330 Gary Smith 325 Chestnut Street, Suite 900 Matt Berry Philadelphia, PA 19106 Drew Hansen Phone: (215) 985-3270 1201 Third Avenue, Suite 3800 Seattle, WA 98101 Tel.: (206) 516-3814 Michael Kelso Karen Oshman 1000 Louisiana Street, Suite 5100 Houston, TX 77002-5096 Tel.: (713) 651-9366 Marc Seltzer Glenn Bridgmann 1901 Avenue of the Stars, Suite 950 Los Angeles, CA 90067-6029 Co-Lead Counsel for the OTC Plaintiffs (Dkt. #1915) MORRIS AND MORRIS LLC WEINSTEIN KITCHENOFF & Counselors At Law ASHER LLC By:/s/Karen L. Morris By:/s/David H. Weinstein Karen L. Morris David H. Weinstein Patrick F. Morris Robert S. Kitchenoff R. Michael Lindsey 100 South Broad Street, Suite 705 4023 Kennett Pike, # 254 Philadelphia, PA 19110-1061 Wilmington, DE 19807 Tel: (215) 545-7200 Tel: (302) 426-0400 Interim Co-Lead Counsel for Bondholders Plaintiffs (Dkt. #17-1989) 9 Case 17-1569, Document 270, 10/10/2017, 2144005, Page24 of 28 KIRBY McINERNEY LLP LOVELL STEWART HALEBIAN JACOBSON LLP David E. Kovel Andrew M. McNeela Christopher Lovell 825 Third Avenue, 16th floor 61 Broadway, Suite 501 New York, NY 10022 New York, NY 10006 Tel.: (212) 371-6600 Tel.: (212)608-1900 Co-Lead Counsel for the Exchange-Based Plaintiffs (Dkt. #17-2056) QUINN EMANUEL URQUHART & SULLIVAN, LLP Daniel L. Brockett Jeremy Andersen Daniel P. Cunningham 865 South Figueroa Street, 10th Floor Steig D. Olson Los Angeles, CA 90017 Jacob J. Waldman Telephone: (213) 443-3685 51 Madison Avenue, 22nd Floor New York, NY 10010 Telephone: (212) 849-7000 Counsel for Plaintiffs-Appellants The City of Philadelphia and The Pennsylvania Intergovernmental Cooperation Authority (Dkt. #17-2347); Salix Capital US Inc. (Dkt. #17-2351, Dkt. #17-2381); Darby Financial Products and Capital Ventures International (Dkt. #17-2352); Prudential Investment Portfolios 2 (f/k/a Dryden Core Investment Fund) o/b/o Prudential Core Short-Term Bond Fund, and Prudential Core Taxable Money Fund (Dkt. #17-2360) 10 Case 17-1569, Document 270, 10/10/2017, 2144005, Page25 of 28 COTCHETT, PITRE & MCCARTHY, LLP Alexander E. Barnett 40 Worth Street New York, NY 10023 Tel.: (212) 201-6820 Nanci E. Nishimura 840 Malcolm Road Burlingame, CA 94010 Tel.: (650) 697-6000 Counsel for Plaintiffs-Appellants City of Houston (Dkt. #17-2376), San Diego Association of Governments, City of Richmond, City of Riverside, The County of Mendocino, County of Sacramento, County of San Diego, County of San Mateo, County of Sonoma, The Regents of the University of California, East Bay Municipal Utility District, The Richmond Joint Powers Financing Authority, successor agency to the Richmond Community Redevelopment Agency, The Riverside Public Financing Authority, The San Mateo County Joint Powers Financing Authority, and David E. Sundstrom (Dkt. #17-2413) MITHOFF LAW Richard W. Mithoff, Jr. 500 Dallas Street, Suite 3450 Houston, TX 77002 Telephone: (713) 654-1122 Counsel for Plaintiff-Appellant City of Houston (Dkt. #17-2376) KELLOGG, HANSEN, TODD, FIGEL & FREDERICK, P.L.L.C. David C. Frederick Andrew Shen 1615 M Street, NW, Suite 400 Washington, DC 20036 11 Case 17-1569, Document 270, 10/10/2017, 2144005, Page26 of 28 Tel.: (202) 326-7900 Counsel for Plaintiff-Appellant National Credit Union Administration Board, as Liquidating Agent of U.S. Central Federal Credit Union, Western Corporate Federal Credit Union, Members United Corporate Federal Credit Union, Southwest Corporate Federal Credit Union, and Constitution Corporate Federal Credit Union (Dkt. #17-2383) 12 Case 17-1569, Document 270, 10/10/2017, 2144005, Page27 of 28 CERTIFICATE OF COMPLIANCE I hereby certify that: 1. This motion complies with the type-volume limitation of Federal Rule of Appellate Procedure 32(a)(7)(B) because it contains 1,541 words, exclusive of the exempted portions, as counted by Microsoft Word 2007, the word-processing program used to prepare the motion; and 2. The motion complies with the typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) and the type-style requirements of Federal Rule of Appellate Procedure 32(a)(6), as the text appears in 14-point Times New Roman font, a proportionally spaced typeface. Dated: October 10, 2017/s/Eric Citron Eric Citron 13 Case 17-1569, Document 270, 10/10/2017, 2144005, Page28 of 28 CERTIFICATE OF SERVICE I, Eric Citron, hereby certify that on October 10, 2017 I caused a copy of the foregoing motion to be served on all parties through the Court’s CM/ECF system, which will send a notice of electronic filing to all counsel of record./s/Eric Citron Eric Citron 14

MOTION ORDER, granting motion to extend time [{{270}}] filed by Appellant Charles Schwab & Co., Inc., Schwab Short-Term Bond Market Fund, Schwab Total Bond Market Fund, Schwab U.S. Dollar Liquid Assets Fund, Schwab Money Market Fund, Schwab Value Advantage Money Fund, Schwab Retirement Advantage Money Fund, Schwab Investor Money Fund, Schwab Cash Reserves, Schwab Advisor Cash Reserves, Schwab YieldPlus Fund, Charles Schwab Bank, N.A., Schwab YieldPlus Fund Liquidation Trust and The Charles Schwab Corporation, Appellant Ellen Gelboim and Linda Zacher in 17-1569, 17-1915, 17-1989, 17-2056, 17-2343, 17-2347, 17-2351, 17-2352, 17-2360, 17-2376, 17-2381, 17-2383, by RKW, FILED. [2144616][274] [17-1569, 17-1915, 17-1989, 17-2056, 17-2343, 17-2347, 17-2351, 17-2352, 17-2360, 17-2376, 17-2381, 17-2383, 17-2413] [Entered: 10/11/2017 11:51 AM]

Case 17-1569, Document 274, 10/11/2017, 2144616, Page1 of 1 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT At a Stated Term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 11th day of October, two thousand and seventeen. Before: Ralph K. Winter, Circuit Judge. _______________________________ ORDER Docket Nos. 17-1569(L) Schwab Short-Term Bond Market Fund, et al., 17-1915(Con) 17-1989(Con) Plaintiffs-Appellants, 17-2056(Con) 17-2343(Con) v. 17-2347(Con) 17-2351(Con) Lloyds Banking Group plc, et al., 17-2352(Con) 17-2360(Con) Defendants – Appellees. 17-2376(Con) 17-2381(Con) 17-2383(Con) 17-2413(Con) ________________________________ Appellants move for a 21-day extension to file their principal brief(s) and the joint appendix. IT IS HEREBY ORDERED that the motion is GRANTED. The brief(s) and joint appendix are due November 13, 2017. For the Court: Catherine O’Hagan Wolfe, Clerk of Court

NOTICE OF APPEARANCE AS SUBSTITUTE COUNSEL, on behalf of Appellee Lloyds Banking Group plc and HBOS plc, FILED. Service date 10/16/2017 by CM/ECF. [2148434] [17-1569] [Entered: 10/16/2017 04:03 PM]

Case 17-1569, Document 276, 10/16/2017, 2148434, Page1 of 1 NOTICE OF APPEARANCE FOR SUBSTITUTE, ADDITIONAL, OR AMICUS COUNSEL Short Title: Schwab Short-Term Bond Market Fund, et al., v. Lloyds et al. Docket No.: 17-1569(L) Substitute, Additional, or Amicus Counsel's Contact Information is as followst Name: Neal Kumar Katyal Firm: Hogan Lovells US LLP Address: 555 13th St. NW Washington, D.C. 20015 Telephone: 202 637 5600 Fax: 202 637 591 0 E-mail: neal.katyal@hoganlovells.com Appearance for: Lloyds Banking Grp pic, HBOS pic I Defendants-Appellees (party/designation) Select Onet... lvlsubstitute counsel (replacing lead counsel: Marc J. Gottndge (Mr. Gottndge remams co-counsel) (name/firm) Osuhstitute counsel (replacing other counsel: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _-..~ (name/firm) ~~~n~rounsel~~oonsel~~-------------------------~ (name/firm) Gmicus (in support of: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ___, (party/designation) CERTIFICATION I certify that: IV' lr am admitted to practice in this Court and, if required by Interim Local Rule 46.1(a)(2), have renewed my admission on _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ OR. tu fc Neal Kumar Katyal S1gna reo ounse 1:--------------------------------Type or Print Name: Is/Neal Kumar Katyal

NOTICE OF APPEARANCE AS ADDITIONAL COUNSEL, on behalf of Appellee Lloyds Banking Group plc and HBOS plc in 17-1569, 17-1915, Appellee Lloyds Banking Group plc in 17-1989, 17-2056, Appellee HBOS plc in 17-2343, 17-2376, 17-2383, 17-2413, FILED. Service date 10/16/2017 by CM/ECF. [2148457] [17-1569, 17-1915, 17-1989, 17-2056, 17-2343, 17-2347, 17-2351, 17-2352, 17-2360, 17-2376, 17-2381, 17-2383, 17-2413] [Entered: 10/16/2017 04:15 PM]

Case 17-1569, Document 277, 10/16/2017, 2148457, Page1 of 1 NOTICE OF APPEARANCE FOR SUBSTITUTE, ADDITIONAL, OR AMICUS COUNSEL Short Title: Schwab Short-Term Bond Market Fund, et al., v. Lloyds et at. Docket No.: 17-1569(L) Substitute, Additional, or Amicus Counsel's Contact Information is as follows1 Name: Eugene A. Sokoloff Firm: Hogan Lovells US LLP Address: 555 13th St. NW Washington, D.C. 20015 Telephone: 202 637 5600 Fax:202 637 5910 E-mail: eugene.sokoloff@hoganlovells.com Appearance for: Lloyds Banking Grp pic, HBOS pic I Defendants-Appellees (party/designation) Select One1 Osubstitute counsel (replacing lead c o u n s e l =--------------------------J (name/firm) O&~~~ro~d&~~~m~ronn~----------------------~ (name/firm) ~dditional counsel (co-counsel with: Neal Kumar Katyai/Hogan Lovells US LLP (name/firm) Gznicus (in support of: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ___, (party/designation) CERTIFICATION I certify that: It/ji am admitted to practice in this Court and, if required by Interim Local Rule 46.1(a)(2), have renewed my admission on _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ OR 0 applied for admission o n----------------------------. tu S1gna fc Eugene A. Sokoloff reo ounse1=-------------------------------Type or Print Name: Is/Eugene A. Sokoloff

LETTER, on behalf of Appellee Barclays Bank PLC, regarding party designation, RECEIVED. Service date 10/19/2017 by CM/ECF.[2151566] [17-1569] [Entered: 10/19/2017 11:43 AM]

Case 17-1569, Document 280, 10/19/2017, 2151566, Page1 of 1 October 19, 2017 Ms. Catherine O’Hagan Wolfe Clerk of the Court United States Court of Appeals for the Second Circuit Thurgood Marshall U.S. Courthouse 40 Foley Square New York, NY 10007 Re: Gelboim v. Credit Suisse Group, No. 17-1989 Dear Ms. Wolfe, Our firm represents Barclays Bank PLC, a defendant in the district court action that gave rise to the above-captioned appeal. Plaintiffs-Appellants have filed an Amended Notice of Appeal in the district court, and a corresponding letter on this docket, explaining that the district court judgment from which this appeal is taken "appl[ies] to all defendants other than Barclays Bank plc," among others. ECF No. 124. Because the district court judgment does not apply to Barclays Bank PLC, I respectfully ask that Barclays Bank PLC not be listed as an appellee and that Barclays Bank PLC’s designation as "Defendant-Appellee" be removed from the docket. Respectfully submitted,/s/Jonathan D. Schiller Jonathan D. Schiller cc: All counsel (via ECF)

NOTICE OF APPEARANCE AS ADDITIONAL COUNSEL, on behalf of Appellant Ellen Gelboim and Linda Zacher in 17-1569, -- Ellen Gelboim and Linda Zacher in 17-1915, 17-1989, 17-2056, 17-2413, FILED. Service date 11/10/2017 by CM/ECF. [2169826] [17-1569, 17-1915, 17-1989, 17-2056, 17-2343, 17-2347, 17-2351, 17-2352, 17-2360, 17-2376, 17-2381, 17-2383, 17-2413] [Entered: 11/10/2017 01:00 PM]

Case 17-1569, Document 282, 11/10/2017, 2169826, Page1 of 1 NOTICE OF APPEARANCE FOR SUBSTITUTE, ADDITIONAL, OR AMICUS COUNSEL Short Title: In re LIBOR-Based Financial Instruments Antitrust Litigation _____ Docket No.: 17-1569 ________ Substitute, Additional, or Amicus Counsel’s Contact Information is as follows: Name: Robert S. Kitchenoff Firm: Weinstein Kitchenoff & Asher LLC Address: 100 South Broad Street, Suite 705, Philadelphia, PA 19110-1061 Telephone: 215-545-7200 ___________________________ Fax: 215-545-6535 E-mail: kitchenoff@wka-law.com Appearance for: Plaintiff Appellants Ellen Gelboim and Linda Zacher (party/designation) Select One: G Substitute counsel (replacing lead counsel:) (name/firm) G Substitute counsel (replacing other counsel: _______) (name/firm) G Additional counsel (co-counsel with: Karen Lisa Morris/Morris and Morris LLC ✔) (name/firm) G Amicus (in support of:) (party/designation) CERTIFICATION I certify that: ✔ G I am admitted to practice in this Court and, if required by Interim Local Rule 46.1(a)(2), have renewed my admission on OR G I applied for admission on. Signature of Counsel:/s/Robert S. Kitchenoff Type or Print Name: Robert S. Kitchenoff

NOTICE OF APPEARANCE AS ADDITIONAL COUNSEL, on behalf of Appellee Barclays Bank PLC and Barclays PLC in 17-1569, -- Barclays Capital Inc. and Barclays PLC in 17-1915, 17-2056, Appellee Barclays Bank PLC in 17-2343, 17-2352, Appellee Barclays Bank PLC and -- Barclays Capital Inc. and Barclays PLC in 17-2351, 17-2381, Appellee Barclays PLC in 17-2360, 17-2383, 17-2413, 17-2347, FILED. Service date 11/13/2017 by CM/ECF. [2169995] [17-1569, 17-1915, 17-1989, 17-2056, 17-2343, 17-2352, 17-2351, 17-2381, 17-2360, 17-2383, 17-2413, 17-2347] [Entered: 11/13/2017 09:09 AM]

Case 17-1569, Document 293, 11/13/2017, 2169995, Page1 of 1 NOTICE OF APPEARANCE FOR SUBSTITUTE, ADDITIONAL, OR AMICUS COUNSEL Sl1(111! In Re: Libor-Based Financial Instruments Antitrust Litigation 17-1569---···----------------------------Docket Suhstitutt', Additional, or Amicus Counsel's Contact Information is as follows: N:rnh': David H. Braff Firni: Sullivan & Cromwell LLP 125 Broad Street, New York, New York 10004 r 212-558-4000 212-558-3588 E·m,iil: __ braffd@sullcrom.com An,,,.....,,...,,.,,.,, for: Barclays Bank PLC, Barclays Capital Inc. and Barclays PLC/Defendants-Appellees or Defendants (party/designation) Sekel (J:w: Osuh-,1 i,t1tv,., lUnsd (n:placing lead counsel: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _. (name/firm) Osuh,,rin1tc cmmsel (ncplacing other cotmsi~l: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _.J (name/firm) j/j1\,L!iri,,r1,d c:,,trnsd (co-counsel Jonathan D. Schiller I Boies Schiller & Flexner LLP (name/firm) D;\1n1,:,,, (lll,u!'f'Orf \ l f:-------------------------------~ (party/designation) CERTIFICATION j/j1,i rn 1d 111 it 11.·,.i l(' pradice in th is Court and, if required by Interim Local Rule 46. l(a)(2), have renewed rnv adn11;-::ii,;r·,,,n _!.}/_6_/_2_0_1_4____________________________ 0R h>r admission on------------------------------/s/David H. Braff David H. Braff

NOTICE OF APPEARANCE AS ADDITIONAL COUNSEL, on behalf of Appellant California Public Plaintiffs, City of Houston, County of Sonoma, East Bay Municipal Utility District, Regents of the University of California, Richmond Joint Powers Financing Authority, Riverside Public Financing Authority, Successor Agency to the Richmond Community Redevelopment Agency, David E. Sundstrom, The San Mateo County Joint Powers Financing Authority and -- San Diego Association of Governments, City of Richmond, City of Riverside, The County of Mendocino, County of Sacramento, County of San Diego and County of San Mateo in 17-1569, -- San Diego Association of Governments, City of Richmond, City of Riverside, County of Sacramento, County of San Diego and County of San Mateo in 17-1915, 17-2056, Appellant City of Houston in 17-2376, Appellant California Public Plaintiffs, County of Sonoma, East Bay Municipal Utility District, Regents of the University of California, Successor Agency to the Richmond Community Redevelopment Agency, David E. Sundstrom, The San Mateo County Joint Powers Financing Authority, The County of Mendocino and -- San Diego Association of Governments, City of Richmond, City of Riverside, County of Sacramento, County of San Diego and County of San Mateo in 17-2413, FILED. Service date 11/15/2017 by CM/ECF. [2173096] [17-1569, 17-1915, 17-1989, 17-2056, 17-2343, 17-2347, 17-2351, 17-2352, 17-2360, 17-2376, 17-2381, 17-2383, 17-2413] [Entered: 11/15/2017 03:30 PM]

Case 17-1569, Document 370, 11/15/2017, 2173096, Page2 of 2. Attachment A Notice of Appearance 1. Plaintiff Regents of the University of California 2. Plaintiff East Bay Municipal Utility District نا Plaintiff San Diego Association of Governments 4. Plaintiff City of Richmond 5. Plaintiff Richmond Joint Powers Financing Authority 6. Plaintiff Successor Agency to the Richmond Community Redevelopment Agency 7. Plaintiff City of Riverside 8. Plaintiff Riverside Public Financing Authority 9. Plaintiff County of Mendocino 10. Plaintiff County of Sacramento 11. Plaintiff County of San Diego 12. Plaintiff County of San Mateo 13. Plaintiff San Mateo County Joint Powers Financing Authority 14. Plaintiff County of Sonoma 15. Plaintiff David E. Sundstrom, in his official capacity as Treasurer of the County of Sonoma for and on behalf of the Sonoma County Treasury 16. Plaintiff City of Houston

BRIEF, on behalf of Appellant Charles Schwab & Co., Inc., Charles Schwab Bank, N.A., Schwab Advisor Cash Reserves, Schwab Cash Reserves, Schwab Investor Money Fund, Schwab Money Market Fund, Schwab Retirement Advantage Money Fund, Schwab Short-Term Bond Market Fund, Schwab Total Bond Market Fund, Schwab U.S. Dollar Liquid Assets Fund, Schwab Value Advantage Money Fund, Schwab YieldPlus Fund, Schwab YieldPlus Fund Liquidation Trust and The Charles Schwab Corporation in 17-1569, Appellant Ellen Gelboim and Linda Zacher in 17-1989, FILED. Service date 11/20/2017 by CM/ECF.[2175977] [17-1569, 17-1915, 17-1989, 17-2056, 17-2343, 17-2347, 17-2351, 17-2352, 17-2360, 17-2376, 17-2381, 17-2383, 17-2413] [Entered: 11/20/2017 01:34 PM]

17-1569(L), Case 17-1569, Document 382, 11/20/2017, 2175977, Page1 of 120 17-1915(CON), 17-1989(CON), 17-2056(CON), 17-2343(CON), 17-2347(CON), 17-2351(CON), 17-2352(CON), 17-2360(CON), 17-2376(CON), 17-2381(CON), 17-2383(CON), 17-2413(CON) United States Court of Appeals for the Second Circuit SCHWAB SHORT-TERM BOND MARKET FUND, SCHWAB TOTAL BOND MARKET FUND, SCHWAB U.S. DOLLAR LIQUID ASSETS FUND, (For Continuation of Caption See Next Page) _______________________________ ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK JOINT BRIEF FOR PLAINTIFFS-APPELLANTS REGARDING PERSONAL JURISDICTION (REDACTED) THOMAS C. GOLDSTEIN STEVEN E. FINEMAN ERIC F. CITRON MICHAEL J. MIARMI CHARLES H. DAVIS LIEFF CABRASER HEIMANN GOLDSTEIN & RUSSELL, P.C. & BERNSTEIN, LLP 7475 Wisconsin Avenue, Suite 850 250 Hudson Street, 8th Floor Bethesda, Maryland 20814 New York, New York 10013 (202) 362-0636 (212) 355-9500 – and – Attorneys for the Schwab Plaintiffs-Appellants and Plaintiffs-Appellants Ellen Gelboim and BRENDAN P. GLACKIN Linda Zacher LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 275 Battery Street, 29th Floor San Francisco, California 94111 (415) 956-1000 Attorneys for the Schwab Plaintiffs-Appellants and Plaintiff-Appellant Bay Area Toll Authority (For Continuation of Appearances See Next Page) Case 17-1569, Document 382, 11/20/2017, 2175977, Page2 of 120 SCHWAB MONEY MARKET FUND, SCHWAB VALUE ADVANTAGE MONEY FUND, SCHWAB RETIREMENT ADVANTAGE MONEY FUND, SCHWAB INVESTOR MONEY FUND, SCHWAB CASH RESERVES, SCHWAB ADVISOR CASH RESERVES, CHARLES SCHWAB BANK, N.A., CHARLES SCHWAB & CO., INC., SCHWAB YIELDPLUS FUND, SCHWAB YIELDPLUS FUND LIQUIDATION TRUST, THE CHARLES SCHWAB CORPORATION, CITY OF NEW BRITAIN, on behalf of itself and all others similarly situated, MAYOR AND CITY COUNCIL OF BALTIMORE, CITY OF HOUSTON, VISTRA ENERGY CORPORATION, YALE UNIVERSITY, JENNIE STUART MEDICAL CENTER, INC., FTC FUTURES FUND PCC LTD, on behalf of themselves and all others similarly situated, NATIONAL CREDIT UNION ADMINISTRATION BOARD, as Liquidating Agent of U.S. Central Federal Credit Union, WESTERN CORPORATE FEDERAL CREDIT UNION, MEMBERS UNITED CORPORATE FEDERAL CREDIT UNION, SOUTHWEST CORPORATE FEDERAL CREDIT UNION, AND CONSTITUTION CORPORATE FEDERAL CREDIT UNION, PENNSYLVANIA INTERGOVERNMENTAL COOPERATION AUTHORITY, CITY OF PHILADELPHIA, DARBY FINANCIAL PRODUCTS, SALIX CAPITAL US INC., CAPITAL VENTURES INTERNATIONAL, PRUDENTIAL INVESTMENT PORTFOLIOS 2, FKA Dryden Core Investment Fund, on behalf of Prudential Core Short-Term Bond Fund, BAY AREA TOLL AUTHORITY, CALIFORNIA PUBLIC PLAINTIFFS, LINDA ZACHER, ELLEN GELBOIM, on behalf of herself and all others similarly situated, GARY FRANCIS, METZLER INVESTMENT GMBH, on behalf of itself and all others similarly situated, 303030 TRADING LLC, ATLANTIC TRADING USA, LLC, FTC FUTURES FUND SICAV, on behalf of themselves and all others similarly situated, NATHANIEL HAYNES, COUNTY OF SONOMA, THE SAN MATEO COUNTY JOINT POWERS FINANCING AUTHORITY, RICHMOND JOINT POWERS FINANCING AUTHORITY, SUCCESSOR AGENCY TO THE RICHMOND COMMUNITY REDEVELOPMENT AGENCY, RIVERSIDE PUBLIC FINANCING AUTHORITY, DAVID E. SUNDSTROM, in his official capacity as Treasurer of the county of Sonoma for and on behalf of the Sonoma County Treasury Pool Investment, EAST BAY MUNICIPAL UTILITY DISTRICT, REGENTS OF THE UNIVERSITY OF CALIFORNIA, Plaintiffs-Appellants, CARPENTERS PENSION FUND OF WEST VIRGINIA, CITY OF DANIA BEACH POLICE & FIREFIGHTERS’ RETIREMENT SYSTEM, Individually and on behalf of all others similarly situated, RAVAN INVESTMENTS, LLC, RICHARD HERSHEY, JEFFREY LAYDON, on behalf of himself and all others similarly situated, ROBERTO E. CALLE GRACEY, AVP PROPERTIES, LLC, COMMUNITY BANK & TRUST, BERKSHIRE BANK, Individually and On Behalf of All Others Similarly Situated, ELIZABETH LIEBERMAN, on behalf of themselves and all other similarly situated, TODD AUGENBAUM, on behalf of themselves and all others similarly situated, 33-35 GREEN POND ROAD ASSOCIATES, LLC, on behalf of itself and all others similarly situated, COURTYARD AT AMWELL II, LLC, ANNIE BELL ADAMS, on behalf of Case 17-1569, Document 382, 11/20/2017, 2175977, Page3 of 120 herself and all others similarly situated, JILL COURT ASSOCIATES II, LLC, GREENWICH COMMONS II, LLC, DENNIS PAUL FOBES, on behalf of himself and all others similarly situated, LEIGH E. FOBES, on behalf of herself and all others similarly situated, MAIDENCREEK VENTURES II LP, RARITAN COMMONS, LLC, MARGARET LAMBERT, on behalf of herself and all others similarly situated, LAWRENCE W. GARDNER, on behalf of themselves and all others similarly situated, BETTY L. GUNTER, on behalf of herself and all others similarly situated, TEXAS COMPETITIVE ELECTRIC HOLDINGS COMPANY LLC, GOVERNMENT DEVELOPMENT BANK FOR PUERTO RICO, CARL A. PAYNE, individually, and on behalf of other members of the general public similarly situated, GUARANTY BANK AND TRUST COMPANY, Individually and on behalf of all others similarly situated, KENNETH W. COKER, individually, and on behalf of other members of the general public similarly situated, THE COUNTY OF MENDOCINO, COUNTY OF SAN MATEO, CITY OF RICHMOND, COUNTY OF SAN DIEGO, CITY OF RIVERSIDE, COUNTY OF SACRAMENTO, SAN DIEGO ASSOCIATION OF GOVERNMENTS, JOSEPH AMABILE, LOUIE AMABILE, individually & on behalf of Lue Trading, Inc., NORMAN BYSTER, MICHAEL CAHILL, RICHARD DEOGRACIAS, individually on behalf of RCD Trading, Inc., HEATHER M. EARLE, on behalf of themselves and all others similarly situated, HENRYK MALINOWSKI, on behalf of themselves and all others similarly situated, MARC FEDERIGHI, individually on behalf of MCO Trading, SCOTT FEDERIGHI, individually on behalf of Katsco, Inc., LINDA CARR, on behalf of themselves and all others similarly situated, ERIC FRIEDMAN, on behalf of themselves and all others similarly situated, ROBERT FURLONG, individually on behalf of XCOP, Inc., DAVID GOUGH, COUNTY OF RIVERSIDE, JERRY WEGLARZ, BRIAN HAGGERTY, individually on behalf of BJH Futures, Inc., DAVID KLUSENDORF, NATHAN WEGLARZ, on behalf of plaintiffs and a class, DIRECTORS FINANCIAL GROUP, individually and on behalf of all others similarly situated, RONALD KRUG, CHRISTOPHER LANG, SEIU PENSION PLANS MASTER TRUST, individually and on behalf of all others similarly situated, HIGHLANDER REALTY, LLC, JOHN MONCKTON, PHILIP OLSON, JEFFREY D. BUCKLEY, FEDERAL HOME LOAN MORTGAGE CORPORATION, BRETT PANKAU, DAVID VECCHIONE, individually on behalf of Vecchione & Associates, RANDALL WILLIAMS, JOHN HENDERSON, 303 PROPRIETARY TRADING LLC, MARGERY TELLER, CEMA JOINT VENTURE, NICHOLAS PESA, EDUARDO RESTANI, PRINCIPAL FUNDS, INC., PFI BOND & MORTGAGE SECURITIES FUND, PFI BOND MARKET INDEX FUND, PFI CORE PLUS BOND I FUND, PFI DIVERSIFIED REAL ASSET FUND, PFI EQUITY INCOME FUND, PFI GLOBAL DIVERSIFIED INCOME FUND, PFI GOVERNMENT & HIGH QUALITY BOND FUND, PFI HIGH YIELD FUND, PFI HIGH YIELD FUND I, PFI INCOME FUND, PFI INFLATION PROTECTION FUND, PFI SHORT-TERM INCOME FUND, PFI MONEY MARKET FUND, PFI PREFERRED SECURITIES FUND, PRINCIPAL VARIABLE CONTRACTS FUNDS, INC., PVC ASSET ALLOCATION ACCOUNT, PVC MONEY MARKET ACCOUNT, PVC BALANCED ACCOUNT, PVC BOND & MORTGAGE SECURITIES ACCOUNT, PVC EQUITY INCOME ACCOUNT, PVC GOVERNMENT & HIGH QUALITY BOND ACCOUNT, PVC INCOME ACCOUNT, PVC SHORT-TERM INCOME ACCOUNT, PRINCIPAL FINANCIAL GROUP, INC., PRINCIPAL FINANCIAL SERVICES, INC., PRINCIPAL LIFE INSURANCE COMPANY, Case 17-1569, Document 382, 11/20/2017, 2175977, Page4 of 120 PRINCIPAL CAPITAL INTEREST ONLY I, LLC, PRINCIPAL COMMERCIAL FUNDING, LLC, PRINCIPAL COMMERCIAL FUNDING II, LLC, PRINCIPAL REAL ESTATE INVESTORS, LLC, VITO SPILLONE, BRIAN MCCORMICK, MAXWELL VAN DE VELDE, Individually and on behalf of all others similarly situated, INDEPENDENCE TRADING, INC., INSULATORS AND ASBESTOS WORKERS LOCAL #14, Individually and on behalf of all others similarly situated, COURMONT & WAPNER ASSOCIATES, L.P., on behalf of itself and all others similarly situated, SALIX CAPITAL LTD., FTC CAPITAL GMBH, on behalf of themselves and all others similarly situated, CITY OF NEW BRITAIN FIREFIGHTERS’ AND POLICE BENEFIT FUND, DIRECT ACTION PLAINTIFFS, FEDERAL NATIONAL MORTGAGE ASSOCIATION, TRIAXX PRIME CDO 2006-1, LTD., TRIAXX PRIME CDO 2006-2, LTD., TRIAXX PRIME CDO 2007-1, LTD., FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver, FRAN P. GOLDSLEGER, NATIONAL ASBESTOS WORKERS PENSION FUND, PENSION TRUST FOR OPERATING ENGINEERS, HAWAII ANNUITY TRUST FUND FOR OPERATING ENGINEERS, CEMENT MASONS’ INTERNATIONAL ASSOCIATION EMPLOYEES’ TRUST FUND, individually and on behalf of all others similarly situated, AXIOM INVESTMENT ADVISORS, LLC, AXIOM HFT LLC, AXIOM INVESTMENT ADVISORS HOLDINGS L.P., AXIOM INVESTMENT COMPANY, LLC, AXIOM INVESTMENT COMPANY HOLDINGS L.P., AXIOM FX INVESTMENT FUND, L.P., AXIOM FX INVESTMENT FUND II, L.P., AXIOM FX INVESTMENT 2X FUND, L.P., EPHRAIM F. GILDOR, GILDOR FAMILY ADVISORS L.P., GILDOR FAMILY COMPANY L.P., GILDOR MANAGEMENT, LLC, PRUDENTIAL CORE TAXABLE MONEY MARKET FUND, Plaintiffs, – v. – LLOYDS BANKING GROUP PLC, BANK OF AMERICA CORPORATION, THE ROYAL BANK OF SCOTLAND GROUP PLC, CITIBANK, N.A., CREDIT SUISSE GROUP AG, DEUTSCHE BANK AG, JPMORGAN CHASE & CO., THE NORINCHUKIN BANK, HBOS PLC, ROYAL BANK OF CANADA, HSBC BANK PLC, CITIGROUP INC., COOPERATIEVE RABOBANK U.A., FKA COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., JPMORGAN CHASE BANK, N.A., THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., BANK OF AMERICA, N.A., BARCLAYS BANK PLC, WESTDEUTSCHE IMMOBILIENBANK AG, PORTIGON AG, FKA WESTLB AG, HSBC HOLDINGS PLC, WESTLB AG, SOCIETE GENERALE, COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., CREDIT SUISSE INTERNATIONAL, CREDIT SUISSE (USA), INC., THE ROYAL BANK OF SCOTLAND PLC, CREDIT SUISSE AG, HSBC SECURITIES (USA) INC., HSBC BANK USA, N.A., HSBC FINANCE CORPORATION, BARCLAYS CAPITAL INC., HSBC USA, INC., THE HONG KONG AND SHANGHAI BANKING CORPORATION LTD., RBC CAPITAL MARKETS LLC, BANK OF AMERICA N.A., RABOBANK GROUP, UBS SECURITIES LLC, CITI SWAPCO INC., BBA ENTERPRISES, LTD., BBA LIBOR, LTD., BRITISH BANKERS’ ASSOCIATION, MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, FKA BANC OF AMERICA SECURITIES, LLC, CITIGROUP FINANCIAL PRODUCTS, INC., J.P. MORGAN BANK DUBLIN PLC, FKA Case 17-1569, Document 382, 11/20/2017, 2175977, Page5 of 120 BEAR STEARNS BANK PLC, UBS LIMITED, CREDIT SUISSE GROUP INTERNATIONAL, UBS AG, Defendants-Appellees, CREDIT AGRICOLE S.A., SUMITOMO MITSUI BANKING CORPORATION, BNP PARIBAS S.A., RBS CITIZENS, N.A., incorrectly sued as othe Charter One Bank NA, RBS CITIZENS, N.A., CREDIT SUISSE GROUP, NA, CITIZENS BANK OF MASSACHUSETTS, Agent of RBS Citizens Bank, NA, BARCLAYS US FUNDING LLC, DEUTSCHE BANK FINANCIAL LLC, DOES 1 THROUGH 10, SOCIETE GENERALE CORPORATE & INVESTMENT BANKING, NATIONAL ASSOCIATION, STEPHANIE NAGEL, JOHN DOES #1-#5, NATIONAL COLLEGIATE STUDENT LOAN TRUST 2007-1, CHASE BANK USA, N.A., J.P. MORGAN CLEARING CORP., BANK OF AMERICA SECURITIES LLC, CENTRALE RAIFFEISEN-BERENLEENBANK B.A., UBS AG, ROYAL BANK OF SCOTLAND GROUP PLC, BANK OF NOVA SCOTIA, CREDIT SUISSE SECURITIES (USA) LLC, RBS GROUP, LLOYDS BANK PLC, FKA Lloyds Bank plc, CITIZENS BANK N.A., CREDIT SUISSE SECURITIES (USA) LLC, CITIGROUP GLOBAL MARKETS, INC., THE ROYAL BANK OF SCOTLAND PLC, LLOYDS BANK PLC, CITIGROUP FUNDING, INC., SOCIETE GENERALE S.A., BARCLAYS PLC, J.P. MORGAN SECURITIES LLC, FKA J.P. Morgan Securities Inc., DEUTSCHE BANK SECURITIES INCORPORATED, BANC OF AMERICA SECURITIES, LLC, RBS SECURITIES INC., FKA Greenwich Capital Markets, Inc., LLOYDS TSB BANK PLC, ICAP PLC, J.P. MORGAN MARKETS LTD., BANK OF AMERICA HOME LOANS, MERRILL LYNCH CAPITAL SERVICES, INC., CITIGROUP GLOBAL MARKETS LIMITED, MERRILL LYNCH & CO., INC., MERRILL LYNCH INTERNATIONAL BANK, LTD., BEAR STEARNS CAPITAL MARKETS, INC., BARCLAYS CAPITAL (CAYMAN) LIMITED, INSTITUTE OF INTERNATIONAL BANKERS, CLEARING HOUSE ASSOCIATION L.L.C., Defendants. BARRY BARNETT RICHARD W. MITHOFF SUSMAN GODFREY L.L.P. MITHOFF LAW 1000 Louisiana Street One Allen Center Houston, Texas 77002 Penthouse, Suite 3450 (713) 651-9366 500 Dallas Street Houston, Texas 77002 – and – (713) 654-1122 WILLIAM C. CARMODY ARUN S. SUBRAMANIAN Attorneys for Plaintiff-Appellant GENG CHEN City of Houston SUSMAN GODFREY L.L.P. 1301 Avenue of the Americas New York, New York 10019 (212) 336-8330 – and – Case 17-1569, Document 382, 11/20/2017, 2175977, Page6 of 120 DREW HANSEN NANCI E. NISHIMURA SUSMAN GODFREY L.L.P. COTCHETT, PITRE & MCCARTHY, LLP 1201 Third Avenue 840 Malcolm Road, Suite 200 Seattle, Washington 98101 Burlingame, California 94010 (206) 516-3880 (650) 697-6000 – and – – and – MARC M. SELTZER ALEXANDER E. BARNETT SUSMAN GODFREY L.L.P. COTCHETT, PITRE & MCCARTHY, LLP 1901 Avenue of the Stars 40 Worth Street, 10th Floor Los Angeles, California 90067 New York, New York 10013 (310) 789-3100 (212) 201-6820 – and – Attorneys for Plaintiffs-Appellants City HILARY K. SCHERRER of Houston, California Public NATHANIAL C. GIDDINGS Plaintiffs, County of Sonoma, The HAUSFELD LLP San Mateo County Joint Powers 1700 K Street, NW Financing Authority, Richmond Joint Washington, DC 20006 Powers Financing Authority, (202) 540-7200 Successor Agency to the Richmond Community Redevelopment Agency, Attorneys for Plaintiffs-Appellants City of Riverside Public Financing New Britain, Mayor and City Council Authority, David E. Sundstrom, East of Baltimore, Vistra Energy Bay Municipal Utility District, and Corporation, Yale University, and Regents of the University of Jennie Stuart Medical Center, Inc. California KAREN L. MORRIS DAVID E. KOVEL PATRICK F. MORRIS ANDREW M. MCNEELA R. MICHAEL LINDSEY KIRBY MCINERNEY LLP MORRIS AND MORRIS LLC 825 Third Avenue COUNSELORS AT LAW New York, New York 10022 4023 Kennett Pike, #254 (212) 371-6600 Wilmington, Delaware 19807 – and – (302) 426-0400 CHRISTOPHER LOVELL – and – LOVELL STEWART HALEBIAN DAVID H. WEINSTEIN JACOBSON LLP ROBERT S. KITCHENOFF 61 Broadway, Suite 501 WEINSTEIN KITCHENOFF & ASHER LLC New York, New York 10006 100 South Broad Street, Suite 705 (212) 608-1900 Philadelphia, Pennsylvania 19110 (215) 545-7200 Attorneys for Plaintiffs-Appellants Metzler Investment GmbH, Gary Attorneys for Plaintiffs-Appellants Francis, 303030 Trading LLC, Ellen Gelboim and Linda Zacher Atlantic Trading USA, LLC, FTC Futures Fund PCC Ltd., FTC Futures Fund SICAV, and Nathaniel Haynes Case 17-1569, Document 382, 11/20/2017, 2175977, Page7 of 120 STEIG D. OLSON DAVID C. FREDERICK DANIEL L. BROCKETT ANDREW C. SHEN DANIEL P. CUNNINGHAM KELLOGG, HANSEN, TODD, FIGEL QUINN EMANUEL URQUHART & FREDERICK, P.L.L.C. & SULLIVAN, LLP 1615 M Street, NW, Suite 400 51 Madison Avenue, 22nd Floor Washington, DC 20036 New York, New York 10010 (202) 326-7900 (212) 849-7000 Attorneys for Plaintiff-Appellant – and – National Credit Union JEREMY ANDERSEN Administration Board QUINN EMANUEL URQUHART & SULLIVAN, LLP DANIEL L. BROCKETT 865 South Figueroa Street, 10th Floor STEIG D. OLSON Los Angeles, California 90017 DANIEL P. CUNNINGHAM (213) 443-3000 QUINN EMANUEL URQUHART & SULLIVAN, LLP Attorneys for Plaintiffs-Appellants 51 Madison Avenue, 22nd Floor The City of Philadelphia and the New York, New York 10010 Pennsylvania Intergovernmental (212) 849-7000 Cooperation Authority – and – JEREMY ANDERSEN QUINN EMANUEL URQUHART & SULLIVAN, LLP 865 South Figueroa Street, 10th Floor Los Angeles, California 90017 (213) 443-3000 Attorneys for Plaintiffs-Appellants Prudential Investment Portfolios 2, Darby Financial Products, Capital Ventures International, and Salix Capital US Inc. Case 17-1569, Document 382, 11/20/2017, 2175977, Page8 of 120 CORPORATE DISCLOSURE STATEMENTS No. 17-1569 Plaintiffs-Appellants in Case No. 17-1569 consist of: (1) Charles Schwab Bank, N.A.; (2) Charles Schwab & Co., Inc.; (3) the Charles Schwab Corporation; (4) the "Schwab Money Funds" (consisting of Schwab Money Market Fund, Schwab Value Advantage Money Fund, Schwab Retirement Advantage Money Fund, Schwab Investor Money Fund, Schwab Cash Reserves, Schwab Advisor Cash Re-serves, Schwab YieldPlus Fund, and Schwab YieldPlus Fund Liquidation Trust); and (5) the "Schwab Bond Funds" (consisting of Schwab Short-Term Bond Market Fund, Schwab Total Bond Market Fund, and Schwab U.S. Dollar Liquid Assets Fund). The Charles Schwab Corporation is a publicly traded company, and is the parent company of Charles Schwab Investment Management Inc.; Charles Schwab Bank, N.A.; and Schwab Holdings, Inc. Schwab Holdings, Inc. is the parent com-pany of Charles Schwab & Co., Inc. No publicly traded company owns 10% of the Charles Schwab Corporation or any other appellant. Both the Schwab Money Funds and the Schwab Bond Funds are or were independently managed funds advised by Charles Schwab Investment Management Inc. None has a parent corporation, and no publicly held company owns 10% or more of any of these appellants. i Case 17-1569, Document 382, 11/20/2017, 2175977, Page9 of 120 No. 17-1915 Plaintiffs-Appellants in Case No. 17-1915 consist of: (1) Mayor and City Council of Baltimore; (2) City of New Britain; (3) Vistra Energy Corp. ("Vistra"); (4) Yale University ("Yale"); and (5) Jennie Stuart Medical Center, Inc. ("Jennie Stuart"). Vistra, Yale, and Jennie Stuart state that they do not have a parent corpo-ration, and there is no publicly held corporation that owns 10% or more of their stock. No. 17-2056 Plaintiffs-Appellants in Case No. 17-2056 consist of: (1) Metzler Investment GmbH; (2) FTC Futures Funds SICAV; (3) FTC Futures Fund PCC Ltd.; (4) Atlan-tic Trading USA, LLC; (5) 303030 Trading LLC; (6) Gary Francis; and (7) Nathaniel Haynes. Metzler Investment GmbH; FTC Futures Funds SICAV; FTC Futures Fund PCC Ltd.; Atlantic Trading USA, LLC; and 303030 Trading LLC are corporate en-tities. Atlantic Trading USA, LLC is 100% owned by Atlantic Trading Holdings, LLC (a non-public Illinois limited liability company). No publicly held corporation owns 10 percent or more of any of these appellants’ shares. No. 17-2351 Salix Capital US Inc. is Delaware corporation not owned by any parent cor-poration. No publicly held corporation owns 10% or more of its stock. ii Case 17-1569, Document 382, 11/20/2017, 2175977, Page10 of 120 No. 17-2352 Darby Financial Products ("DFP") is a Delaware general partnership. DFP is wholly-owned by two partners: Susquehanna International Group, LLP, a Delaware limited liability partnership, and Susquehanna Fixed Income, Inc., a Pennsylvania corporation. No publicly held corporation holds an interest of 10% or more in DFP. Capital Ventures International ("CVI") is a Cayman Islands Exempted Com-pany. CVI is wholly-owned by CVI Holdings, LLC, a Delaware limited liability company. No publicly held corporation owns 10% or more of CVI’s stock. No. 17-2360 Prudential Investment Portfolios 2, f/k/a Dryden Core Investment Fund, o/b/o Prudential Core Short-Term Bond Fund and Prudential Core Taxable Money Market Fund (n/k/a Prudential Core Ultra Short Bond Fund) is a Delaware statutory trust not owned by any parent corporation. No publicly held corporation owns 10% or more of its stock. No. 17-2383 Plaintiff-Appellant National Credit Union Administration Board ("NCUA") hereby advises the Court that NCUA is an independent federal agency. NCUA files this statement in its statutory role as liquidating agent for several failed federal credit unions: U.S. Central Federal Credit Union, Western Corporate Federal Credit Union, iii Case 17-1569, Document 382, 11/20/2017, 2175977, Page11 of 120 Members United Corporate Federal Credit Union, Southwest Corporate Federal Credit Union, and Constitution Corporate Federal Credit Union. iv Case 17-1569, Document 382, 11/20/2017, 2175977, Page12 of 120 TABLE OF CONTENTS CORPORATE DISCLOSURE STATEMENTS................................................. i TABLE OF AUTHORITIES............................................................................ vii INTRODUCTION.............................................................................................. 1 JURISDICTION................................................................................................. 4 STATEMENT OF THE ISSUES....................................................................... 5 STATEMENT OF THE CASE........................................................................... 6 I. Statutory Background............................................................................. 6 II. Factual Background And Procedural History......................................... 9 III. Decision Below.................................................................................... 19 SUMMARY OF ARGUMENT........................................................................ 24 STANDARD OF REVIEW.............................................................................. 29 ARGUMENT.................................................................................................... 29 I. Defendants’ Direct U.S. Contacts Suffice For Personal Jurisdiction... 29 A. U.S.-domiciled banks are subject to general personal jurisdiction in federal court as U.S. residents................................................ 30 B. Non-U.S. banks are subject to specific personal jurisdiction in the United States because of their direct forum contacts related to plaintiffs’ USD-LIBOR fixing claims........................................ 31 II. Defendants Are Subject to Personal Jurisdiction in the United States for Manipulating USD-LIBOR Under The "Effects" Test........................ 48 III. All Defendants Are Subject To Personal Jurisdiction In The United States Because Overt Acts In Furtherance Of The Conspiracy Occurred Here...................................................................................................... 58 IV. Affirming The District Court’s Holding Necessarily Invalidates A Federal Statute As Unconstitutional..................................................... 66 V. As To Certain Plaintiffs, Defendants Have Forfeited Their Personal-Jurisdiction Defense............................................................................. 70 A. OTC action................................................................................. 70 B. Bondholder action...................................................................... 72 v Case 17-1569, Document 382, 11/20/2017, 2175977, Page13 of 120 Case 17-1569, Document 382, 11/20/2017, 2175977, Page14 of 120 TABLE OF AUTHORITIES Cases Adams v. Unione Mediterranea Di Sicurta, 364 F.3d 646 (5th Cir. 2004)...................................................................... 9 Air Prods. & Controls, Inc. v. Safetech Int’l, Inc., 503 F.3d 544 (6th Cir. 2007).................................................................... 57 Allstate Life Ins. Co. v. Linter Grp. Ltd., 782 F. Supp. 215 (S.D.N.Y. 1992)............................................................ 58 Am. Fid. Assur. Co. v. Bank of N.Y. Mellon, 810 F.3d 1234 (10th Cir. 2016)................................................................ 73 Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102 (1987).................................................................................. 44 Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 305 F.3d 120 (2d Cir. 2002)................................................................ 37, 39 Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017).................................................................... 6, 39, 40 Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985)...................................................................... 30, 37, 43 Burnham v. Superior Court, 495 U.S. 604 (1990)............................................................................ 24, 30 Burrell v. United States, 467 F.3d 160 (2d. Cir 2006)...................................................................... 35 Calder v. Jones, 465 U.S. 783 (1984)........................................................................... passim Chew v. Dietrich, 143 F.3d 24 (2d Cir. 1998).......................................................................... 9 Chloé v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158 (2d Cir. 2010)............................................................... passim City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114 (2d Cir. 2011)................................................................ 70, 75 Copperweld Corp. v. Indep. Tube Corp., 467 U.S. 752 (1984).................................................................................. 47 vii Case 17-1569, Document 382, 11/20/2017, 2175977, Page15 of 120 Corporación Mexicana v. Pemex, 832 F.3d 92 (2d Cir. 2016)...................................................... 70, 71, 73, 75 Daimler AG v. Bauman, 134 S. Ct. 746 (2014)......................................................................... passim Daniel v. Am. Bd. of Emergency Med., 428 F.3d 408 (2d Cir. 2005)............................................................ 8, 66, 68 Dorchester Fin. Sec., Inc. v. Banco BRJ, S.A., 722 F.3d 81 (2d Cir. 2013)....................................................... 4, 29, 59, 61 EMI Christian Music Grp., Inc. v. MP3tunes, LLC, 844 F.3d 79 (2d Cir. 2016)............................................................ 38, 56, 57 Gelboim v. Bank of Am. Corp., 823 F.3d 759 (2d Cir. 2016)............................................................... passim Goldlawr, Inc. v. Heiman, 369 U.S. 463 (1962).................................................................................. 68 Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011)............................................................................ 29, 73 Gucci Am. Inc. v. Weixing Li, 768 F.3d 122 (2d Cir. 2014).......................................................... 67, 73, 74 Hamilton v. Atlas Turner, Inc., 197 F.3d 58 (2d Cir. 1999)............................................................ 70, 73, 75 Hanson v. Denckla, 357 U.S. 235 (1958).................................................................................. 24 Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408 (1984).................................................................................. 30 Holland Am. Line Inc. v. Wärtsilä N. Am., Inc., 485 F.3d 450 (9th Cir. 2007)...................................................................... 9 Holzsager v. Valley Hosp., 646 F.2d 792 (2d Cir. 1981)...................................................................... 74 In re Bulk (Extruded) Graphite Prods. Antitrust Litig., No. 02-CV-6030, 2007 WL 2212713 (D.N.J. July 30, 2007)................... 54 In re Capacitors Antitrust Litig., No. 14-CV-3264, 2015 WL 3638551 (N.D. Cal. June 11, 2015)............. 54 In re DDAVP Direct Purchaser Antitrust Litig., 585 F.3d 677 (2d Cir. 2009)...................................................................... 61 viii Case 17-1569, Document 382, 11/20/2017, 2175977, Page16 of 120 In re Fasteners Antitrust Litig., No. 08-MD-1912, 2011 WL 3563989 (E.D. Pa. Aug. 12, 2011)............. 54 In re Foreign Exch. Benchmark Rates Antitrust Litig., No. 13-CV-7789, 2016 WL 1268267 (S.D.N.Y. Mar. 31, 2016)............. 51 In re LIBOR-Based Fin. Instruments Antitrust Litig., No. 11-MDL-2262, 2015 WL 6243526 (S.D.N.Y. Oct. 20, 2015).... passim In re Magnetic Audiotape Antitrust Litig., 334 F.3d 204 (2d Cir. 2003)................................................................. 3, 53 In re N. Sea Brent Crude Oil Futures Litig., No. 13-MD-2475, 2017 WL 2535731 (S.D.N.Y. June 8, 2017).............. 51 In re Publ’n Paper Antitrust Litig., 690 F.3d 51 (2d Cir. 2012)........................................................................ 42 In re TFT-LCD (Flat Panel) Antitrust Litig., No. 07-MD-1827, 2011 WL 5444261 (N.D. Cal. Nov. 9, 2011)............. 54 In re Vitamin C Antitrust Litig., No. 06-MD-1738, 2012 WL 12355046 (E.D.N.Y. Aug. 8, 2012)...... 45, 54 In re Vitamins Antitrust Litig., 270 F. Supp. 2d 15 (D.D.C. 2003)............................................................ 54 In re Vivendi, S.A. Sec. Litig., 838 F.3d 223 (2d Cir. 2016)...................................................................... 74 In re W. States Wholesale Nat. Gas Antitrust Litig., 715 F.3d 716 (9th Cir. 2013).................................................................... 54 ISI Int’l, Inc. v. Borden Ladner Gervais LLP, 256 F.3d 548 (7th Cir. 2001)...................................................................... 9 J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873 (2011).................................................................................. 44 Keeton v. Hustler Magazine, Inc., 465 U.S. 770 (1984)................................................................ 25, 38, 56, 57 Kerman v. City of New York, 374 F.3d 93 (2d Cir. 2004)........................................................................ 35 Kernan v. Kurz-Hastings, Inc., 175 F.3d 236 (2d Cir. 1999)................................................................ 56, 57 Leasco Data Processing Equip. Corp v. Maxwell, 468 F.2d 1326 (2d Cir. 1972)............................................................. passim ix Case 17-1569, Document 382, 11/20/2017, 2175977, Page17 of 120 Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 732 F.3d 161 (2d Cir. 2013).......................................................... 29, 37, 42 Lotes Co. v. Hon Hai Precision Indus. Co., 753 F.3d 395 (2d Cir. 2014)...................................................................... 50 Mariash v. Morrill, 496 F.2d 1138 (2d Cir. 1974)............................................................ 6, 8, 30 McGee v. Int’l Life Ins. Co., 355 U.S. 220 (1957)............................................................................ 42, 43 Mwani v. bin Laden, 417 F.3d 1 (D.C. Cir. 2005)........................................................................ 9 Nat’l Auto Brokers Corp. v. Gen. Motors Corp., 332 F. Supp. 280 (S.D.N.Y. 1971............................................................. 66 Oldfield v. Pueblo De Bahia Lora, S.A., 558 F.3d 1210 (11th Cir. 2009).................................................................. 9 Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97 (1987)...................................................................................... 6 Pinker v. Roche Holdings Ltd., 292 F.3d 361 (3d Cir. 2002)...................................................................... 38 Porina v. Marward Shipping Co., 521 F.3d 122 (2d Cir. 2008)........................................................................ 6 Roth v. Jennings, 489 F.3d 499 (2d Cir. 2007)...................................................................... 48 Sonterra Capital Master Fund Ltd. v. Credit Suisse Grp. AG, No. 15-CV-871, 2017 WL 4250480 (S.D.N.Y. Sept. 25, 2017)............... 51 Star Lines Ltd. v. P.R. Mar. Shipping Auth., 442 F. Supp. 1201 (S.D.N.Y. 1978).......................................................... 66 Strauss v. Credit Lyonnais, S.A., 175 F. Supp. 3d 3 (E.D.N.Y. 2016).......................................................... 74 Sunward Elecs., Inc. v. McDonald, 362 F.3d 17 (2d Cir. 2004)........................................................................ 76 Touchcom, Inc. v. Bereskin & Parr, 574 F.3d 1403 (Fed. Cir. 2009)................................................................... 9 United States v. Ben Zvi, 242 F.3d 89 (2d Cir. 2001)........................................................................ 35 x Case 17-1569, Document 382, 11/20/2017, 2175977, Page18 of 120 United States v. Fernandez, 506 F.2d 1200 (2d Cir. 1974).................................................................... 35 United States v. Hayes, 99 F. Supp. 3d 409 (S.D.N.Y. 2015)......................................................... 57 United States v. Patten, 226 U.S. 525 (1913).................................................................................. 49 United States v. Scophony Corp., 333 U.S. 795 (1948).............................................................................. 8, 66 United States v. Sears, 411 F.3d 1240 (11th Cir. 2005)................................................................ 74 United States v. Socony-Vacuum Oil Co., 310 U.S. 150 (1940).................................................................................. 58 Van Riper v. United States, 13 F.2d 961 (2d Cir. 1926)........................................................................ 58 Walden v. Fiore, 134 S. Ct. 1115 (2014)........................................................................ 54, 55 Waldman v. Palestine Liberation Org., 835 F.3d 317 (2d Cir. 2016)................................................................ 54, 55 Weiss v. Nat. Westminster Bank PLC, 176 F. Supp. 3d 264 (E.D.N.Y. 2016)...................................................... 74 World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980)............................................................................ 43, 44 Statutes 15 U.S.C. §15.............................................................................................. 1, 4 15 U.S.C. §22......................................................................................... passim 15 U.S.C. §6a(1)........................................................................................... 50 28 U.S.C. §1291.............................................................................................. 4 28 U.S.C. §1331.............................................................................................. 4 28 U.S.C. §1406(a)................................................................................. 68, 69 28 U.S.C. §2403............................................................................................ 69 Rules Fed. R. Civ. P. 12(g)................................................................................. 8, 68 xi Case 17-1569, Document 382, 11/20/2017, 2175977, Page19 of 120 Fed. R. Civ. P. 12(h)................................................................................. 8, 68 Fed. R. Civ. P. 4(k)......................................................................................... 7 Fed. R. Civ. P. 4(k)(1)(A)............................................................................... 7 Fed. R. Civ. P. 4(k)(1)(C)............................................................................... 7 Fed. R. Civ. P. 4(k)(2)................................................................................. 7, 9 Fed. R. Civ. P. 5.1......................................................................................... 69 Fed. R. Civ. P. 54(b)................................................................................. 5, 75 Other Authorities Charles Alan Wright et al., Federal Practice and Procedure (4th ed.)........ 30 Luna Azahara Romo González, Banco De España, The Drivers of European Banks’ US Dollar Debt Issuance: Opportunistic Funding in Times of Crisis? (2016)........................................................................................... 16 Market Participants Group on Reforming Interest Rate Benchmarks, Final Report (Mar. 2014).................................................................... 15, 16 Viral V. Acharya et al., How Do Global Banks Scramble for Liquidity? Evidence from the Asset-Backed Commercial Paper Freeze of 2007 (Federal Reserve Bank of New York Staff Reports, No. 623, Aug. 2013, rev. Apr. 2016).......................................................................................... 52 xii Case 17-1569, Document 382, 11/20/2017, 2175977, Page20 of 120 INTRODUCTION As this Court has already held, the various plaintiffs in this multi-district liti-gation have plausibly pleaded that defendants formed an international price-fixing conspiracy with the object and effect of suppressing the U.S. Dollar London Inter-bank Offered Rate (USD-LIBOR or LIBOR). See Gelboim v. Bank of Am. Corp., 823 F.3d 759, 780-82 (2d Cir. 2016). Its members were all motivated by the promise of "increased profits and the projection of financial soundness." Id. at 781-82. And this conspiracy was directly connected to the United States—in fact, this Court has already held that the plaintiffs here plausibly alleged that the conspiracy caused them antitrust injury in the United States because defendants’ conspiracy to suppress LIBOR caused them to receive suppressed interest rate payments on LIBOR-based financial instruments. Id. at 772-77. That alone is enough to subject this international price-fixing cartel to the per-sonal jurisdiction of the federal courts, which Congress vested with broad authority to adjudicate claimed violations of the antitrust laws and protect American consum-ers. See 15 U.S.C. §§15, 22. International price-fixing cartels have thus, for dec-ades, routinely been subjected to comprehensive civil suits in the United States by both private parties and government enforcers. Unsurprisingly, then, neither the dis-trict court nor defendants have cited any case in which an international cartel causing 1 Case 17-1569, Document 382, 11/20/2017, 2175977, Page21 of 120 widespread antitrust injury in the United States has escaped the jurisdiction of our Nation’s federal courts. The district court (Buchwald, J.) nonetheless held that only banks headquar-tered in the United States could be subjected to federal antitrust claims, and only through state-law general jurisdiction at their domicile in New York. Among other problems, the very premise of this holding depended upon an express rejection of this Court’s decision regarding the plausible motives of defendants’ conspiracy—an unambiguous, and troubling, violation of the mandate rule. See SPA5; infra p.32. But more fundamentally, the district court’s view of the law was that jurisdiction was available only "in the forum containing the office from which a defendant de-termined, or transmitted, a false LIBOR submission," and so acted to fix prices. SPA17. Adopting that artificially narrow view of what constitutes "wrongdoing," the district court disregarded defendants’ trillions of dollars in sales and issuances of price-fixed LIBOR-based financial instruments in the United States—many of which were to plaintiffs in this case—and the illegally suppressed interest payments they sent to their U.S. counterparties on those instruments as "not meaningful" to personal jurisdiction. Thankfully, this is not the law, and even if it were, there would still be personal jurisdiction here. There are several, doctrinally independent rationales on which the federal courts can exercise personal jurisdiction over the members of this alleged cartel in a 2 Case 17-1569, Document 382, 11/20/2017, 2175977, Page22 of 120 federal antitrust action. Chief among them are the many ways defendants "purpose-fully avail" themselves of the very U.S. markets for USD-LIBOR-based financial instruments that they manipulated. Defendants all used those markets to raise bil-lions in capital and/or make trillions in sales of price-fixed LIBOR-linked instru-ments and derivatives. Given that level of activity—and that many plaintiffs bought their price-fixed instruments from the defendants themselves—there can be no ques-tion that these claims "arise out of or relate to" defendants’ massive contacts with the U.S. market for LIBOR-based products. Defendants also clearly "targeted" the effects of their U.S. Dollar LIBOR fix-ing at the United States. In manipulating USD-LIBOR, defendants wanted to derive "increased profits" from and "project[] financial soundness" in the United States by suppressing the borrowing price of our national currency, and they acted with the certain knowledge that the brunt of the antitrust injuries caused by their price-fixing would inexorably occur here: Again, each and every defendant itself issued or sold billions in price-fixed LIBOR-based instruments in the United States, and knew these markets intimately. See Calder v. Jones, 465 U.S. 783, 789-90 (1984); In re Magnetic Audiotape Antitrust Litig., 334 F.3d 204, 208 (2d Cir. 2003) (per curiam). Finally, even if jurisdiction depended on at least one conspirator determining or transmitting a suppressed LIBOR bid within the territorial United States—that is, the district court’s overly narrow view of what counts as an overt act "in furtherance 3 Case 17-1569, Document 382, 11/20/2017, 2175977, Page23 of 120 of the conspiracy"—plaintiffs alleged (and even proved) that several of the defend-ants did exactly that. The district court was only able to reach a contrary conclusion by engaging in fact-finding that stretched miles beyond what is permitted at the mo-tion-to-dismiss stage, without even holding an evidentiary hearing. See Dorchester Fin. Sec., Inc. v. Banco BRJ, S.A., 722 F.3d 81, 85-87 (2d Cir. 2013) (per curiam). Indeed, the district court faulted plaintiffs for failing to produce sufficient evidence on personal jurisdiction after affirmatively denying them jurisdictional discovery, nonetheless calling the record "developed," and then discounting their on-point doc-umentary evidence by erroneously drawing every inference in favor of the defend-ants moving to dismiss. This case has languished at the pre-discovery stage for six years while the district court repeatedly contravenes black-letter antitrust law and decades of prece-dent in dismissing well-pleaded price-fixing allegations on successive motions to dismiss. Its disregard of the law of personal jurisdiction, failure to follow this Court’s mandate, and explicit, pre-discovery fact-finding should be rejected, and this case finally returned to the path to trial where it belongs. JURISDICTION The district court had jurisdiction under 28 U.S.C. §1331 and 15 U.S.C. §15. This Court has jurisdiction under 28 U.S.C. §1291: For some appellants, all claims were dismissed; for others, the district court granted partial judgment under Federal 4 Case 17-1569, Document 382, 11/20/2017, 2175977, Page24 of 120 Rule of Civil Procedure 54(b). All appellants timely noticed this appeal, and this Court consolidated those appeals into this action.1 STATEMENT OF THE ISSUES 1. Do federal courts have personal jurisdiction over federal antitrust claims brought against the members of an international price-fixing conspiracy that manipulated USD-LIBOR, sold USD-LIBOR-linked instruments in the United States, engaged in wrongful conduct in furtherance of their conspiracy in the United States, and intentionally caused antitrust injuries in the United States? 2. Is general jurisdiction in federal court available for the U.S.-based defendants? 3. Is Clayton Act §12, 15 U.S.C. §22, unconstitutional? 4. Did defendants forfeit personal-jurisdiction defenses in certain actions? 1 The judgments appealed from and the accompanying notices of appeal were filed on (provided as judgment date/notice date): April 28/May 12, May 19/June 16, June 13/June 15, June 26/June 28, July 19/July 26, July 19/July 28, and July 19/July 31, 2017. The posture of different plaintiff groups varies somewhat according to where they filed suit and the nature of their overall claims. A chart provided for the Court’s convenience after the certificate of service includes a modified version of a chart defendants prepared below identifying the district court’s holdings, relevant filing dates, and the current posture for each group. Notably, five plaintiffs cited in the district court’s ruling are not part of this appeal because the district court denied them Rule 54(b) judgments or they did not seek them. 5 Case 17-1569, Document 382, 11/20/2017, 2175977, Page25 of 120 STATEMENT OF THE CASE I. Statutory Background Because the federal rules and antitrust laws provide for personal jurisdiction in different (and broader) fashion than may be available in state courts under state "long-arm" statutes, see Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773, 1783-84 (2017) (citing Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 102 n.5 (1987)), we begin with a brief explanation of how personal juris-diction arises for federal-law claims in federal courts, both in general and under the antitrust laws. As in state courts, general jurisdiction is available in a federal court against a corporation only where it is "at home." In that forum, the defendant can be made to answer for any case, because a sovereign has that general power over its citizens. The difference is that, in state-law cases in state court, the sovereign is only the state of incorporation or a defendant’s principal place of business. Daimler AG v. Bau-man, 134 S. Ct. 746, 751 (2014). In federal-question cases in federal court, the rel-evant sovereign is the United States, cf. Porina v. Marward Shipping Co., 521 F.3d 122, 128 (2d Cir. 2008), and Congress can thus subject corporations domiciled here to personal jurisdiction in any federal court it chooses, see Mariash v. Morrill, 496 F.2d 1138, 1143 (2d Cir. 1974). 6 Case 17-1569, Document 382, 11/20/2017, 2175977, Page26 of 120 Personal jurisdiction in the federal courts in turn derives from Federal Rule of Civil Procedure 4(k). As relevant here, it provides three different routes to personal jurisdiction. First, "[s]erving a summons or filing a waiver of service establishes personal jurisdiction over a defendant who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located." Fed. R. Civ. P. 4(k)(1)(A). This provision piggybacks on the jurisdiction of local state courts. Second, service or its waiver likewise establishes personal jurisdiction over a de-fendant "when authorized by a federal statute." Id. 4(k)(1)(C). This provision relies on an express grant of power over the defendant from Congress with respect to the suit at issue. And third, if a claim arises under federal law and "the defendant is not subject to jurisdiction in any state’s courts of general jurisdiction," then the federal courts may exercise their own personal jurisdiction so long as it is "consistent with the United States Constitution and laws." Id. 4(k)(2). The Clayton Act, in turn, authorizes service (and so personal jurisdiction) very broadly for corporate defendants. It provides that any antitrust suit may be brought not only in the judicial district where [a corporate de-fendant] is an inhabitant, but also in any district wherein it may be found or transacts business; and all process in such cases may be served in the district of which it is an inhabitant, or wherever it may be found. 15 U.S.C. §22 (emphasis added). The first clause establishes that "venue" is appro-priate in any judicial district where a corporate defendant at least "transacts busi-ness"; the second clause allows personal jurisdiction "in such cases" by serving the 7 Case 17-1569, Document 382, 11/20/2017, 2175977, Page27 of 120 defendant anywhere it "may be found"—i.e., anywhere in the world. See Daniel v. Am. Bd. of Emergency Med., 428 F.3d 408, 422 (2d Cir. 2005). Although other circuits disagree, this Court has held that invoking the worldwide-service clause is only permitted where venue is established under the first clause. See id. at 422-23. Accordingly, in this Circuit, the effect of the Clayton Act is to expand both venue and personal jurisdiction to any place a defendant "transacts business"—a low bar that requires only "practical, everyday business … or carrying on business'of any substantial character.’" United States v. Scophony Corp., 333 U.S. 795, 807 (1948). Notably, the law of venue has not changed during this case, and no defendant con-tested Clayton Act venue in originally seeking dismissal on other grounds, meaning any Clayton Act venue objections are necessarily waived. See Fed. R. Civ. P. 12(g)-(h); infra p.67. Finally, it is noteworthy that the Clayton Act provides at least for "nationwide service of process." Mariash, 496 F.2d at 1142-43 (construing materially identical terms of Securities Exchange Act of 1934). And it thus does not matter whether a defendant has the requisite "minimum contacts" with any given state for a federal court to exercise personal jurisdiction over it. Because "[i]t is not the State … but the United States'which would exercise its jurisdiction over them,’" id. at 1143, any constitutional testing for "minimum contacts" or the like is based on the defendants’ national contacts—not their state-by-state contacts. See, e.g., Chew v. Dietrich, 143 8 Case 17-1569, Document 382, 11/20/2017, 2175977, Page28 of 120 F.3d 24, 28 n.4 (2d Cir. 1998) ("‘When the national sovereign is applying national law, the relevant contacts are the contacts between the defendant and the sovereign’s nation.’"). This point is bolstered by Rule 4(k)(2) which backstops any federal-law claim for which personal jurisdiction is unavailable in a specific state. The circuits pre-dominantly agree that, to escape federal personal jurisdiction under Rule 4(k)(2), a defendant must concede that jurisdiction is available in a particular state, or else show that the United States as a whole lacks the constitutional authority to subject that defendant to adjudication under the Fifth Amendment.2 Defendants have not conceded any state’s jurisdiction here; instead, both they and the district court have adopted the exact opposite view, and purported to show that even defendants’ ag-gregated national contacts are insufficient for personal jurisdiction in federal court. II. Factual Background And Procedural History Appellants are individuals and corporations who "entered into a variety of financial transactions at interest rates that reference LIBOR." Gelboim, 823 F.3d at 765. LIBOR is a benchmark rate reflecting a panel of banks’ answer to the question: 2 E.g., Adams v. Unione Mediterranea Di Sicurta, 364 F.3d 646, 651 (5th Cir. 2004); ISI Int’l, Inc. v. Borden Ladner Gervais LLP, 256 F.3d 548, 552 (7th Cir. 2001); Holland Am. Line Inc. v. Wärtsilä N. Am., Inc., 485 F.3d 450, 461 (9th Cir. 2007); Oldfield v. Pueblo De Bahia Lora, S.A., 558 F.3d 1210, 1218 n.22 (11th Cir. 2009); Mwani v. bin Laden, 417 F.3d 1, 11 (D.C. Cir. 2005); Touchcom, Inc. v. Ber-eskin & Parr, 574 F.3d 1403, 1415 (Fed. Cir. 2009). 9 Case 17-1569, Document 382, 11/20/2017, 2175977, Page29 of 120 "‘At what rate could you borrow funds, were you to do so by asking for and then accepting inter-bank offers in a reasonable market size just prior to 11 a.m.?’" Id. "Because LIBOR is a component or benchmark used in countless business dealings, it has been called'the world’s most important number.’" Id. "Appellees, 16 of the world’s largest banks (‘the Banks’), were on the panel of banks that determined LIBOR each business day based, in part, on the Banks’ individual submissions." Id. at 764. The process occurred through a trade association called the British Bankers’ Association (BBA), and required each bank to secretly and independently report, each day, the estimated rate at which other banks would offer to lend it funds. Id. at 765-66. The Banks sent that information to Thomson Reuters in New York, which published the individual submissions and an average of the middle eight submissions as the USD-LIBOR for that day. Id. LIBOR then serves multiple critical roles in U.S. capital and debt markets. Most importantly, it serves as a floating rate in a variety of financial instruments including USD-LIBOR-based bonds, interest rate swaps, commercial paper, and ex-change-traded derivatives. See id. at 765-66. In those variable transactions, rates are typically set "at a spread above LIBOR, and the interest rate is frequently expressed in terms of the spread." Id. at 765. LIBOR also plays a formulaic role in calculating rates for short-term, fixed-rate bonds. All market participants assess these instruments in terms of their spread 10 Case 17-1569, Document 382, 11/20/2017, 2175977, Page30 of 120 relative to LIBOR when the transaction occurs; they do not contain an express LIBOR term only because they mature quickly and so do not need the rate to peri-odically reset. See, e.g., JA8373 (attesting that "buyers compare the spread-to-LIBOR of a fixed-rate instrument against an issuer’s creditworthiness and other mar-ket dynamics, essentially taking LIBOR as a given component of the offered rate"); see also JA8130, 8722-23 (similar). The BBA also licensed "LIBOR" during the class period to U.S.-based third parties, including exchanges like the Chicago Mercantile Exchange, which directly incorporate LIBOR as a price component into other financial products traded by plaintiffs and defendants in the United States. JA1347-49, 1355-56. Such products include Eurodollar futures and options on Eurodollar futures contracts, both of which are directly tied to LIBOR. JA1347-49, 1355. Defendants themselves issued and sold trillions of dollars of LIBOR-based instruments in the United States. "With commercial paper, for example, the Banks received cash from purchasers in exchange for a promissory obligation to pay an amount based, in part, on LIBOR at a specified maturity date...; in such transactions, the Banks were borrowers and the purchasers were lenders." Gelboim, 823 F.3d at 766. "[W]ith swap transactions, the Banks received fixed income streams from pur-chasers in exchange for variable streams that incorporated LIBOR as the reference point." Id. "A LIBOR increase of one percent would have allegedly cost the Banks 11 Case 17-1569, Document 382, 11/20/2017, 2175977, Page31 of 120 hundreds of millions of dollars." Id. "Moreover, since during the relevant period the Banks were still reeling from the 2007 financial crisis, a high LIBOR submission could signal deteriorating finances to the public and the regulators." Id. That would have raised borrowing costs—perhaps so sharply that the banks would have risked collapse. "Appellants allege that the Banks corrupted the LIBOR-setting process and exerted downward pressure on LIBOR to increase profits in individual financial transactions and to project financial health." Id. "In a nutshell, appellants contend that, beginning in 2007, the Banks engaged in a horizontal price-fixing conspiracy, with each submission reporting an artificially low cost of borrowing in order to drive LIBOR down." Id. Plaintiffs allege "that the Banks colluded to depress LIBOR by violating the rate-setting rules, and that the payout associated with the various finan-cial instruments was thus below what it would have been if the rate had been unmo-lested." Id. at 764. This appeal concerns actions by four groups of plaintiffs: • The Over-the-Counter ("OTC") plaintiffs are a putative class of plaintiffs that directly purchased USD-LIBOR-based financial instruments from the defendants in the United States. • The "bondholder" plaintiffs are a putative class of plaintiffs that held USD-LIBOR-based bonds issued by non-defendants in the United States. 12 Case 17-1569, Document 382, 11/20/2017, 2175977, Page32 of 120 • The Exchange-Based ("EBP") plaintiffs are a putative class of plaintiffs that pur-chased USD-LIBOR-based futures on the Chicago Mercantile Exchange. • The "direct-action" plaintiffs are entities bringing individual (non-class) claims who purchased USD-LIBOR-based financial instruments in the United States. After the district court dismissed all plaintiffs’ antitrust claims for lack of an-titrust injury, this Court reversed, holding that harms proximately caused to parties on the other side of transactions involving price-fixed instruments are paradigmatic antitrust injuries. See id. at 772-77. In so doing, it rejected defendants’ alternative argument that "appellants have not adequately alleged conspiracy"—a holding the district court had reached in another proceeding while that appeal was pending. Id. at 780. This Court held that while "[c]lose cases abound on this issue, … this is not one of them; appellants’ complaints contain numerous allegations that clear the bar of plausibility." Id. at 781. As this Court put it, "[t]hese allegations evince a com-mon motive to conspire—increased profits and the projection of financial sound-ness—as well as a high number of interfirm communications." Id. at 781-82. The Court "reserved for later" matters that were not appropriate for resolution at the motion-to-dismiss stage, such as the "extent of" LIBOR’s "influence on price." Id. at 782-83. Among these reserved issues was the banks’ argument that they would not have tried to suppress LIBOR because they both borrow and lend in LIBOR-based terms, and would only have profited if they were "net-borrowers" in LIBOR 13 Case 17-1569, Document 382, 11/20/2017, 2175977, Page33 of 120 instruments. On this issue, this Court had noted plaintiffs’ allegation that a "LIBOR increase of one percent would have allegedly cost the Banks hundreds of millions of dollars." Id. at 766. But it granted that the banks had a possible argument that the math might work out to a "wash," noted that defendants themselves had "not even established that [they] used LIBOR in setting rates for [their] lending transactions," and so specifically ordered that this issue be developed after the motion-to-dismiss stage. See id. at 783 ("[T]he potential of a wash requires further development and can only be properly analyzed at later stages of the litigation.") (emphasis added). Although defendants urged this Court to affirm the district court’s merits de-cision on alternative grounds, personal jurisdiction wasn’t among them. Once they lost the appeal, however, defendants suddenly contended that the same courts could not constitutionally exercise jurisdiction over them. Appellants thus marshalled ex-tensive allegations and evidence of how defendants’ conspiracy established suit-re-lated contacts with the United States. This included allegations and evidence that defendants: (1) sold and/or issued trillions of dollars in price-fixed LIBOR-based instruments in the United States, including directly to the OTC and direct-action plaintiffs, while otherwise exploiting U.S. markets for USD-LIBOR-based financial products, (2) targeted the effects of their conspiracy at the United States, and (3) committed overt acts in furtherance of the conspiracy in the United States. 14 Case 17-1569, Document 382, 11/20/2017, 2175977, Page34 of 120 1. U.S. Sales of Price-Fixed Products to Plaintiffs. Every single defendant directly sold what together amounted to trillions of dollars in USD-LIBOR-based financial instruments—bonds, interest rate swaps, and/or other derivatives—in the United States. Indeed, as of 2012, the worldwide market for USD interest rate swaps exceeded a hundred-trillion dollars in notional value, the vast majority of which were sold in the United States on terms tied to USD-LIBOR. See Market Partici-pants Group on Reforming Interest Rate Benchmarks, Final Report 308 (Mar. 2014) ("MPG Report");3 JA5265-5633; JA1013, 1027-28. The same is true for the esti-mated $32.9 trillion in exchange-traded USD-denominated interest rate futures and options. MPG Report at 308; JA8748. The foreign banks also directly solicited investors and made billions in USD-denominated fixed-and floating-rate bond sales in the United States. See JA8131 ("Virtually every day during the Relevant Period [Schwab] received telephone calls, emails, Bloomberg messages, and other forms of solicitation in California from broker-dealers and issuers, including [JPMorgan Chase, Merrill Lynch, Deutsche Bank, Credit Suisse First Boston (n/k/a Credit Suisse Securities (USA) LLC), Bank of America, UBS, and others]."); JA8373-74 (same); JA8721-22 (same); JA8218-22; JA8343-52; JA8460-64; JA8562-69. 3 Available at http://www.fsb.org/wp-content/uploads/r_140722b.pdf. 15 Case 17-1569, Document 382, 11/20/2017, 2175977, Page35 of 120 Further, either directly or through subsidiaries, at least 13 of the 16 defendants together issued hundreds of billions in USD-LIBOR-based, floating-rate bonds dur-ing the relevant period.4 These issuances overwhelmingly occurred in the United States. See MPG Report at 6 (estimating that, as of 2012, 76% of USD floating-rate bond issuances were in the United States); id. at 308, 311, 316 (estimating that 84% of USD floating-rate bonds were expressly tied to USD-LIBOR, compared to 4% for next-most-specified benchmark). Publicly available information, including a study by Spain’s central bank, also confirms that even the foreign banks based in Europe raised most of their USD-denominated bond funding from 2005 through 2013 from U.S. debt markets. See Luna Azahara Romo González, Banco De España, The Drivers of European Banks’ US Dollar Debt Issuance: Opportunistic Funding in Times of Crisis? 14, 51, app. A fig.5, app. C tbl.9 (2016).5 4 Bondholders alleged in a proposed amended complaint, JA606, that during the alleged period of defendants’ LIBOR suppression, 11 defendants were issu-ers/obligors, directly and through subsidiaries, of billions in USD-LIBOR-based floating rate bonds. JA606. The district court denied leave to file this complaint in the decision reversed in Gelboim. Bondholders have since adduced evidence sup-porting a specific allegation that 13 of the defendant banks (directly and through subsidiaries) were issuer/obligors with respect to billions (collectively) in such bonds, issued in the United States and outstanding during the period of the alleged LIBOR suppression. 5 Available at https://www.bde.es/f/webbde/SES/Secciones/Publicaciones/PublicacionesSeriadas/DocumentosTrabajo/16/Fich/dt1611e.pdf. 16 Case 17-1569, Document 382, 11/20/2017, 2175977, Page36 of 120 2 Intentional U.S. Impacts. Unsurprisingly, defendants have never denied that, as huge and expert participants in U.S. bond and derivative markets, they were fully aware that if they suppressed USD-LIBOR, trillions of dollars in USD-LIBOR-based instruments would be directly and immediately affected. Defendants knew this to a certainty because they knew these instruments and markets better than any-one else: Each and every defendant itself sold many billions of dollars of LIBOR-based instruments to counterparties in the United States. They thus knew with ab-solute certainty that their U.S. Dollar LIBOR suppression conspiracy would cause the brunt of its antitrust injuries in the United States. Their actions in furtherance of their conspiracy bear this out. In addition to controlling USD-LIBOR as the panel banks, they exerted control through the For-eign Exchange and Money Markets Committee ("FXMMC")—a special body cre-ated for that purpose. See, e.g., Confidential Appendix ("CA") CA330-34.6 Its 6 The Confidential Appendix contains materials filed under seal in the district court and has been filed under seal here as well. See ECF Nos. 1530, 1639. Because these materials were produced pursuant to limited class-certification discovery— which the district court barred certain plaintiff-groups from viewing—it has been filed (and seen) only by those plaintiffs with access to those materials. This vividly highlights the gross procedural irregularity of the district court’s decision: Plaintiffs have been faulted for failing to produce evidence at the pleading stage of a kind that only discovery could produce, and that defendants still insist on keeping secret. These kinds of fact disputes are what discovery is for. 17 Case 17-1569, Document 382, 11/20/2017, 2175977, Page37 of 120 members included many of the officers who directly oversaw the USD-LIBOR sub-mitters. Defendants used the FXMMC to coordinate the conspiracy, using Secretary John Ewan to CA334. And when U.S. publi-cations raised questions about the reliability of LIBOR, Id. Moreover, at a May 2008 FXMMC meeting, Id.; see also JA5093-99. CA334. 3. Overt Acts In The United States. Not only did the banks issue and sell LIBOR-based products in the U.S., and dispatch Ewan here to cover up the suppres-sion of USD-LIBOR, they also continued to suppress the benchmark, including through actions by several of the banks’ U.S.-based officers. Plaintiffs’ allegations in this regard are unambiguous, see, e.g., JA1037; CA2; CA3-5; CA11-13, and the motion-to-dismiss stage does not typically (or legally) go beyond those allegations. Nonetheless, the district court erroneously believed—as expressed in an earlier opin-ion—that personal jurisdiction could arise only where the bank determined or trans-mitted a suppressed LIBOR submission, and that plaintiffs needed to produce evi-dence of such conduct at this stage. So that’s what plaintiffs did—including sworn 18 Case 17-1569, Document 382, 11/20/2017, 2175977, Page38 of 120 admissions and documentary proof that directions to issue suppressed LIBOR sub-missions were coming from U.S. personnel. This evidence is discussed in detail at infra pp.59-64. III. Decision Below. After considering defendants’ newfound personal-jurisdiction defenses, the district court mostly granted dismissal. As to claims initially brought outside New York, it refused to assert personal jurisdiction over any bank that challenged juris-diction, even those domiciled in the United States. SPA2, 73. It did so despite its acknowledgment that "defendants that are domiciled in the relevant forum are sub-ject to general personal jurisdiction" and that the "relevant forum for the assessment of minimum contacts is the United States as a whole." SPA29, 20. As to claims filed in New York, the district court held that it lacked personal jurisdiction over all non-resident panel banks. SPA30. This holding rested entirely on its premise that the conspiracy’s only goal was to project financial soundness. SPA10. And that premise in turn relied on the district court’s renewed finding that plaintiffs had not plausibly alleged a profit-motivated conspiracy, despite this Court’s explicit holding to the contrary in the opinion it had just issued. See Gel-boim, 823 F.3d at 774-75. Accordingly, while acknowledging this Court’s statement that plaintiffs’ "al-legations evince a common motive to conspire—increased profits and the projection 19 Case 17-1569, Document 382, 11/20/2017, 2175977, Page39 of 120 of financial soundness," SPA4, the district court found it "far from clear" that Gel-boim "should be read to mean that the plaintiffs sufficiently alleged" a profit-moti-vated conspiracy. Id. And believing itself free to reconsider that conclusion at the motion-to-dismiss stage, the district court found it "not plausible" that "the primary goal of the conspiracy was to increase profits by lowering the interest rate the banks had to pay when they were in the role of borrower." Id. It recognized that this Court had concluded that "the record is undeveloped" on that issue, but it simply disagreed, saying "the record is developed." SPA5. And so the district court declined to obey the mandate to consider these issues "only … at later stages of the litigation," Gel-boim, 823 F.3d at 783, and held (again) that the conspiracy’s only plausible object was "the projection of financial soundness." SPA6. The district court believed this premise allowed it to narrow the jurisdictional relevance of defendants’ alleged actions to "only acts taken pursuant to [a reputation-motivated] conspiracy." SPA8. The court thus excluded defendants’ own, massive sales and bond issuances within the United States as "not meaningful in a jurisdic-tional analysis because they were not'within the scope of the conspiratorial agree-ment,’" and its purely reputational goals. Id. This allowed it to "adhere to [its] earlier ruling that the contacts relevant to specific jurisdiction are only those in the'forum containing the office from which a defendant determined, or transmitted, a false LIBOR submission.’" Id. 20 Case 17-1569, Document 382, 11/20/2017, 2175977, Page40 of 120 The district court then rejected personal jurisdiction under Calder’s "effects test" as well, finding that "[n]one of plaintiffs’ voluminous submissions persuade us to alter our prior holdings that there is'no suggestion, and it does not stand to reason, that foreign defendants aimed their manipulative [persistent suppression] conduct at the United States or any particular forum state’"—instead, they targeted the entire world. Id.; see In re LIBOR-Based Fin. Instruments Antitrust Litig., No. 11-MDL-2262, 2015 WL 6243526, at *38 (S.D.N.Y. Oct. 20, 2015) ("LIBOR IV") ("Persistent suppression was not intended to affect investments in any specific place….") (em-phasis added). The court did not distinguish the binding precedent from this Court’s holding that aiming tortious conduct at multiple forums entails an intent to cause harmful effects in each of those forums. See infra p.37. The district court next rejected plaintiffs’ allegations of LIBOR-suppression conduct in U.S. territory by panel banks or affiliates. This aspect of the district court’s discussion is, quite candidly, littered with facially impermissible pleading-stage fact-findings that not only failed to accept plaintiffs’ well-pleaded allegations, but parsed the record to draw defendant-favoring inferences from plain documentary evidence. We include a few examples here, and others in the argument below. See infra pp.61-65. Among the rejected evidence was an email by an executive at a wholly owned U.S. subsidiary of Barclays saying: "the USD LIBOR submissions for all of the 21 Case 17-1569, Document 382, 11/20/2017, 2175977, Page41 of 120 Panel Banks were'fantasy rates’" and admitting to "instruct[ing] subordinates to submit artificially low USD LIBOR rates." SPA25 n.17. Inferring (in defendants’ favor) that "the'fantasy rates’ comment offers nothing more than market color" and interpreting the evidence to suggest that "the direction to submit low LIBOR rates" ultimately originated from another executive abroad, the district court found that plaintiffs "merely allege[d]" that U.S. personnel and affiliates participated in sup-pression. SPA25 & n.17. The district court did not explain why an executive’s "participation" in suppression from the U.S. was different for jurisdictional purposes from an executive initially directing the suppression—both are conduct in further-ance of a suppression conspiracy. The district court also rejected plaintiffs’ allegation "that LIBOR submissions were transmitted to Thomson Reuters in New York, as stated by former Rabobank trader Lee Stewart in his plea allocution," in favor of defendants’ contrary'factual’ take (supported only by lawyer argument). SPA26. The court did so by parsing (again, in defendants’ favor) a sentence in Stewart’s allocution transcript saying: "I also understand that someone at Rabobank, first in London and later in Utrecht, would submit a Rabobank LIBOR rate each day to Thom[]son Reuters in New York." Id. n.19 (emphasis added). Adding its own emphasis to the word "understand," the court speculated that "Stewart’s statement itself suggests that he lacked personal knowledge." Id. "Furthermore," the court asserted, "it is implausible that Thomson 22 Case 17-1569, Document 382, 11/20/2017, 2175977, Page42 of 120 Reuters in New York would be in the role of accepting LIBOR submissions at around 11:00 a.m. London time," which the court noted would be "6:00 or 7:00 a.m. New York time." The district court did not explain why it was implausible to believe Thomson Reuters had global finance personnel working at 6:00am in the city that never sleeps. The district court then "easily discounted," several other allegations, "espe-cially in light of the moving defendants’ declarations stating that they did not deter-mine or transmit their LIBOR submissions from the United States." SPA27 (em-phasis added). The "discounted" evidence included a written exchange in which a "senior JPMorgan executive in New York directed JPMorgan’s LIBOR submis-sions," and a UBS admission in its government plea that an executive "based in Stamford," Connecticut directed another to "submit low LIBOR contributions." SPA28. Having concluded that defendants did not meet its understanding of the re-quired minimum contacts, the district court did not consider whether defendants "transacted business" under the venue portion of Clayton Act §12, 15 U.S.C. §22, and so would be subject to personal jurisdiction under its express terms. SPA30. In disposing of a subsequent motion for clarification, the court also made clear that it would not permit general jurisdiction over U.S.-based banks with respect to claims initiated outside New York. SPA72-73. 23 Case 17-1569, Document 382, 11/20/2017, 2175977, Page43 of 120 SUMMARY OF ARGUMENT The district court erred in denying that personal jurisdiction lies over the de-fendants’ U.S. Dollar LIBOR price-fixing conspiracy in the federal courts of the United States. Because Congress may extend the general personal jurisdiction of its courts to any resident corporation served in the United States, see Burnham v. Superior Court, 495 U.S. 604, 619 (1990) (opinion of Scalia, J.), there is no argument that the Constitution forbids a federal court from asserting personal jurisdiction in an anti-trust suit against the domestic banks. The district court’s contrary determination is indefensible and should be summarily reversed. As to specific personal jurisdiction, there are at least three independent and sufficient bases for that jurisdiction over the foreign banks. Each reflects the well-settled practice of federal courts adjudicating antitrust challenges against all mem-bers of price-fixing cartels that harm U.S. consumers and/or U.S. commerce, even when the actual fixing occurs abroad. First, personal jurisdiction lies over all members of defendants’ price-fixing conspiracy because the conspirators all "purposefully avail[ed themselves] of the privilege of conducting activities" within the United States, Hanson v. Denckla, 357 U.S. 235, 253 (1958)—activities that were (quite unsurprisingly) intimately con-nected with their LIBOR fixing. See infra Part I.A. Each and every defendant sold 24 Case 17-1569, Document 382, 11/20/2017, 2175977, Page44 of 120 and/or issued billions in price-fixed LIBOR-based financial instruments, together amassing trillions of dollars of business in transactions with thousands of U.S. coun-terparties. Those counterparties include the OTC and direct-action plaintiffs, to whom defendants sold price-fixed LIBOR-based instruments in the United States. Defendants also raised many billions in capital here by issuing LIBOR-related debt instruments, paid interest on their obligations using U.S. bank accounts and the U.S. banking system, and maintained huge offices and financial operations in the United States—all dependent on the reputation for creditworthiness they intentionally pro-jected in U.S. markets by manipulating LIBOR. Indeed, three conspirators are U.S. companies operating at the heart of the U.S. financial system. It beggars belief that banks so active in U.S. financial markets would not "reasonably anticipate being haled into court" in the United States for the harms they cause to U.S. plaintiffs in conspiring with each other and three U.S. companies to manipulate U.S. Dollar LIBOR. See Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 781 (1984) ("Where, as in this case, [defendant] has continuously and deliberately exploited the [forum] market, it must reasonably anticipate being haled into court there[.]"). The district court’s contrary conclusion is not only legally unprecedented, but avowedly based on a premise that requires procedurally improper pleading-stage factfinding and an express violation of this Court’s mandate from Gelboim. 25 Case 17-1569, Document 382, 11/20/2017, 2175977, Page45 of 120 Second, and relatedly, the conspirators are subject to personal jurisdiction in the United States because the effects of their price-fixing conspiracy were intention-ally directed here. See infra Part I.B. Both of the two motives for the conspiracy this Court identified in Gelboim—"increased profits" and "projection of financial stability"—were directed at the U.S. debt and financial markets from which these defendants raised badly needed capital. The United States is, not surprisingly, the predominant market for the USD-LIBOR-related instruments at issue in these ap-peals, and defendants were massively active in this U.S. market. Even granting the district court’s holding (in contravention of this Court’s) that the conspiracy’s only motive was to project financial soundness, that is doubly irrelevant. For one, the defendants wanted to project that soundness in the United States—that way, they could continue raising money from and conducting financial operations in the United States, on better terms than their true borrowing costs war-ranted, and at a time when a loss of confidence in this market would have been cat-astrophic. The complaints accordingly detail the steps the conspirators took to con-vince U.S. sources, including The Wall Street Journal, that LIBOR retained its in-tegrity. See, e.g., JA8456-57. For another, a defendant’s subjective motive doesn’t matter—it "intends" to cause injury in the forum if it "knew or should have known" its intentional act would cause injury there. As in Calder, when defendants formed their price-fixing conspiracy, they "knew that the brunt of [the] injury would be felt 26 Case 17-1569, Document 382, 11/20/2017, 2175977, Page46 of 120 by [plaintiffs] in the [Nation] in which [they] live[] and work[] and in which [USD-LIBOR setting] has its largest [effect]." 465 U.S. at 789-90. This, too, suffices for personal jurisdiction. Third, even accepting the district court’s incorrect view that jurisdiction lies only where the defendants transmitted or directed their LIBOR manipulation, that would include the United States. Plaintiffs plainly alleged that conspirators’ false LIBOR submissions were transmitted to Thomson Reuters in the United States for publication, and that certain conspirators directed LIBOR suppression from the United States; they even submitted documentary proof in that regard, well before the initial round of class-action discovery granted only to some plaintiffs had con-cluded.7 The district court expressly credited defendants’ contrary submissions over not only plaintiffs’ allegations but their documentary proof—an unmistakable vio-lation of Rule 12 law. Simply put, there is no question that overt acts in furtherance of the conspiracy suffice for personal jurisdiction, and the plaintiffs plausibly alleged that, too. See infra Part I.C. 7 The district court affirmatively blockaded plaintiffs’ efforts to obtain any ju-risdictional discovery. See, e.g., JA7750 (denying bondholders’ pre-motion letter requesting jurisdictional discovery, stating Bondholders sought to receive "extensive jurisdictional discovery not granted to any other plaintiff class") (emphasis added); JA7748; JA7716 (denying jurisdictional discovery to Exchange-Based plaintiffs). 27 Case 17-1569, Document 382, 11/20/2017, 2175977, Page47 of 120 Ultimately, this case is complicated only by the sheer number of ways the district court erred in reaching its unprecedented conclusion. International price-fixing conspiracies that directly affect U.S. commerce are and always have been subject to the personal jurisdiction of U.S. courts—and that is particularly clear where, as here, they are manipulating a U.S. Dollar denominated benchmark, con-spiring with U.S. companies, and selling or issuing trillions of dollars of the price-fixed products in the United States, often to the very plaintiffs in this case. The government’s civil enforcement jurisdiction would equally disappear if the district court were right that price-fixers in international cartels can only be sued where the price-fixing itself occurred. And, to be clear, the district court’s holding here is that Congress passed an unconstitutional statute when it provided, more than a century ago, that defendants who engage in price-fixing that injures U.S. consumers are ame-nable to suit wherever they "transact[] business" in the United States. 15 U.S.C. §22. See infra Part II. This unprecedented departure from black-letter antitrust law can and should be easily reversed. Finally, certain defendants have forfeited any personal-jurisdiction defense in certain of the cases. See infra Part III. 28 Case 17-1569, Document 382, 11/20/2017, 2175977, Page48 of 120 STANDARD OF REVIEW This Court reviews personal jurisdiction dismissals de novo and "construe[s] the pleadings and any supporting materials in the light most favorable to the plain-tiffs." Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 732 F.3d 161, 167 (2d Cir. 2013). At the pre-discovery stage, plaintiffs need only make a prima facie show-ing of personal jurisdiction by pleading factual allegations that, if true, would suffice to establish jurisdiction. See id. As with all other motions to dismiss—and particu-larly in the absence of any evidentiary hearing—contested facts cannot be resolved in favor of the moving party, and all reasonable inferences must be granted to plain-tiffs. See Dorchester, 722 F.3d at 85-87; Chloé v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158, 163 (2d Cir. 2010). ARGUMENT I. Defendants’ Direct U.S. Contacts Suffice For Personal Jurisdiction. A court may exercise personal jurisdiction over a defendant in one of two ways. First, where a person or corporation is "at home" in a given forum, its courts have so-called "general personal jurisdiction," and can summon that party as a de-fendant in any case. Daimler, 134 S. Ct. at 751 (citing Goodyear Dunlop Tires Op-erations, S.A. v. Brown, 564 U.S. 915, 919 (2011)). Second, even outside its home, a party may be subject to a forum’s jurisdiction in a particular suit because the suit relates to actions that party took connecting it to that forum. This "specific" personal 29 Case 17-1569, Document 382, 11/20/2017, 2175977, Page49 of 120 jurisdiction is case-linked and only permits certain kinds of suits—those that "arise out of or relate to" the defendant’s forum contacts. See, e.g., Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985) (quoting Helicopteros Nacionales de Colom-bia, S.A. v. Hall, 466 U.S. 408, 414 (1984)). A. U.S.-domiciled banks are subject to general personal jurisdiction in federal court as U.S. residents. With regard to general personal jurisdiction, there can be no question that a U.S. district court adjudicating a federal claim possesses the constitutional power to exert personal jurisdiction over U.S. residents. See, e.g., Burnham, 495 U.S. at 619 ("[J]urisdiction based on physical presence alone constitutes due process because it is one of the continuing traditions of our legal system[.]"). "When a federal court adjudicates a federal question claim, it exercises the sovereign power of the United States[.]" 4 Charles Alan Wright et al., Federal Practice and Procedure §1068.1 (4th ed.). The district court’s determination that general jurisdiction over the do-mestic banks was unavailable outside New York was unexplained and inexplicable. To the extent its reasoning can be discerned, the district court appeared to believe that, under Daimler, the domestic banks can only be subject to general juris-diction in the state where they are domiciled or headquartered. SPA73. But Daimler was about a state-law claim, not a federal-law claim in federal court. In the latter context, the United States is the sovereign and can exercise general personal juris-diction over its citizens in its courts as its sees fit. See, e.g., Mariash, 496 F.2d at 30 Case 17-1569, Document 382, 11/20/2017, 2175977, Page50 of 120 1142-43 (domestic defendants served pursuant to a nationwide service of process provision cannot raise a question about a federal court’s jurisdictional power). The district court’s contrary holding should be summarily reversed. B. Non-U.S. banks are subject to specific personal jurisdiction in the United States because of their direct forum contacts related to plaintiffs’ USD-LIBOR fixing claims. With respect to the thirteen foreign banks, the district court declined to assert specific jurisdiction; it believed that, because the actual manipulation of USD-LIBOR occurred abroad—ostensibly, in London—none of these banks had the req-uisite contacts "related to" the plaintiffs’ suits to support a claim of personal juris-diction. This conclusion followed from the district court’s view that defendants’ conspiracy had a very limited purpose: to project financial soundness and not to profit from the sale of LIBOR-linked instruments. Accordingly, the district court held that, although defendants and their co-conspirators sold trillions in LIBOR-linked instruments in the United States, issued billions in LIBOR-linked debts in the United States, traded LIBOR-based derivatives on domestic exchanges, and paid in-terest on these obligations in the United States and through the U.S. banking system, none of that profit-related conduct "related to" the conspiracy and plaintiffs’ suits about it. This holding is doubly erroneous. First, it relies on redefining the conspiracy in a manner directly contrary to this Court’s holding in Gelboim, 823 F.3d at 781-82, 31 Case 17-1569, Document 382, 11/20/2017, 2175977, Page51 of 120 failing dramatically to follow this Court’s mandate. Second, however the conspiracy is defined, the defendants made plenty of direct contacts with the United States that are at least "related to" plaintiffs’ claims about the antitrust injuries they suffered in the United States from USD-LIBOR manipulation. The district court’s assessment of these contacts is ultimately nonsensical: Among other things, it somehow reached the unprecedented holding that price-fixers who sold their own price-fixed products directly into the United States—either themselves or through their wholly-owned subsidiaries—could escape U.S. personal jurisdiction. 1. The district court failed to follow this Court’s mandate. To begin, the district court’s personal jurisdiction holding proceeds from the avowed premise that this Court was wrong when it concluded that one of the princi-pal aims of defendants’ plausibly alleged conspiracy was to profit from LIBOR sup-pression. Indeed, the district court cited no other basis for concluding that "sales of LIBOR-based [i.e., price-fixed] products are not meaningful in a jurisdictional anal-ysis." SPA18. But this does not comply with this Court’s mandate: This Court reversed the district court on the question whether an antitrust conspiracy was properly alleged, and (as the district court acknowledged) its ratio decidendi was that plaintiffs’ "‘allegations evince a common motive to conspire—increased profits and the projection of financial soundness.’" SPA4 (quoting Gelboim, 823 F.3d at 781-82). After that holding, the district court had no authority to hold as it did, at 32 Case 17-1569, Document 382, 11/20/2017, 2175977, Page52 of 120 the motion-to-dismiss stage, that plaintiffs’ unchanged "allegations" somehow do not "evince a common motive to … increase profits." Plaintiffs submit this Court meant what it said, especially where it went out of its way to say that, while "[c]lose cases abound" on such Twombly issues, "this is not one of them." Gelboim, 823 F.3d at 781. If there were any confusion, however, the context of this Court’s holding would dispel it. Defendants’ brief to this Court in Gelboim articulated two distinct motives for defendants’ conspiracy that plaintiffs had alleged—"(1)'to portray themselves as economically healthier than they actually were’ in the wake of the financial crisis; and (2)'to pay lower interest rates on LIBOR-based financial instru-ments,’" 13-3565 C.A. Dkt. 464 at 44 (quoting Bondholders Compl. ¶4)—and it asked this Court to hold that neither was plausibly alleged. To be clear: Defendants themselves introduced the numbers in this sentence to clearly distinguish the two alleged motives—recognizing that both allegations are clearly made and backed up in the complaints. That distinction makes sense because, as the district court noted below, it had already distinguished and rejected "as implausible any suggestion that defendants engaged in the persistent suppression of LIBOR to increase transaction profits" in LIBOR III and LIBOR IV, see SPA11 n.8—decisions that were before this Court in Gelboim, and defendants were hoping this Court would affirm. See 823 33 Case 17-1569, Document 382, 11/20/2017, 2175977, Page53 of 120 F.3d at 780-81. This Court took stock of the district court’s reasoning and the ex-press distinction defendants themselves made between the conspiracy’s two plausi-ble motives, found both were plausibly alleged, and reversed. Defendants invited that holding; they do not get to relitigate it, and a trial court is not free to revise it in a decision resuscitating the very holdings this Court had just rejected. This Court’s observation that "the Banks operated not just as borrowers but also as lenders in transactions that referenced LIBOR," Gelboim, 823 F.3d at 783, did not afford the district court license to eviscerate the mandate. Seizing on that language, the district court concluded plaintiffs were required to put forth "evi-dence"—at the pleading stage—demonstrating that defendants "were in fact net bor-rowers" in LIBOR-based transactions. SPA15. But this Court understood "the po-tential of a wash," and found it a reason to reverse the district court. See 823 F.3d at 783. In so doing, it provided a pellucid instruction about how to handle that issue: It said "the potential of a wash requires further development and can only be properly analyzed at later stages of the litigation." Id. (emphasis added). The district court, determined to resuscitate its own theory of the case after plaintiffs successfully ap-pealed, defied that instruction.8 8 Since Gelboim, the district court has not hesitated to criticize what it charac-terizes as "plaintiffs’ obsession with antitrust claims, rather than other types of claims." ECF No. 1859 at 4. 34 Case 17-1569, Document 382, 11/20/2017, 2175977, Page54 of 120 The mandate rule proscribes this result. Compliance with the mandate "is a matter of a trial court’s duty, not its discretion," United States v. Fernandez, 506 F.2d 1200, 1202-03 (2d Cir. 1974). The rule "holds'that where issues have been explicitly or implicitly decided on appeal, the district court is obliged, on remand, to follow the decision of the appellate court.’" Burrell v. United States, 467 F.3d 160, 165 (2d. Cir 2006) (emphasis added). Indeed, trial courts are directed to "look to both the specific dictates of the remand order as well as the broader'spirit of the mandate’" in deciding "whether an issue remains open" on remand. United States v. Ben Zvi, 242 F.3d 89, 95 (2d Cir. 2001). Here, this Court was perfectly explicit: It said plaintiffs had plausibly alleged a conspiracy with a motive of increasing profit, and that a contrary theory pressed by the banks could "only" be decided at "later stages" of the litigation. The letter—let alone the "spirit"—of this Court’s decision was clear. The district court’s suggestion that it could reconsider this Court’s judgment because "the record is developed," SPA5, is legally wrong, factually false, and pro-cedurally irregular. It is legally wrong because, when this Court finds that a plain-tiffs’ required showing has been made at one stage of record development, it is not open to the district court to reach a contrary conclusion on other grounds at the same record stage. See, e.g., Kerman v. City of New York, 374 F.3d 93, 110 (2d Cir. 2004) (district courts cannot "grant judgment as a matter of law on essentially the same 35 Case 17-1569, Document 382, 11/20/2017, 2175977, Page55 of 120 record on which this Court has ruled that summary judgment is inappropriate be-cause there exist factual issues that must be tried."). It is factually false because the record is not developed—the district court explicitly denied jurisdictional discovery, and the banks have produced no information on their net LIBOR positions—alt-hough only they would have it. See supra p.4. And it is a gross procedural irregu-larity because, as this Court acknowledged, plaintiffs have alleged that the banks are net borrowers in LIBOR-denominated instruments, Gelboim, 823 F.3d at 766, and that necessarily suffices when it comes to a pure factual issue like this one at the motion-to-dismiss stage. This non-compliance with this Court’s mandate is fully sufficient to reverse, because it is, avowedly, the sole premise the district court offered for its holding. SPA17. And appellants respectfully submit that strict enforcement of the mandate rule is necessary and appropriate here, where the district court’s serial orders and statements on the record, see supra p.17 n.5, reflect a distinct unwillingness to permit appellants’ antitrust claims to proceed after six years of motions practice and multi-ple reversals on procedure and substance. The Court need consider no further argu-ments; it can and should summarily reverse. 2. Plaintiffs’ claims "arise out of or relate to" defendants’ direct contacts with the United States. Non-compliance with this Court’s mandate aside, the defendants also inten-tionally created a host of direct contacts with the United States related to USD-36 Case 17-1569, Document 382, 11/20/2017, 2175977, Page56 of 120 LIBOR fixing that make personal jurisdiction in the United States appropriate. And these contacts directly relate to their LIBOR-fixing conspiracy whether or not one accepts the district court’s procedurally and factually erroneous conclusion that the defendants were not attempting to profit from suppressing USD-LIBOR. The doctrinal question for specific personal jurisdiction—whether the plain-tiffs’ claims "arise from or relate to" contacts the defendants created with the United States—is fundamentally aimed at answering whether defendants "‘purposefully availed [themselves] of the privilege of doing business in the forum and could fore-see being haled into court there.’" Licci, 732 F.3d at 170 (quoting Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 305 F.3d 120, 127 (2d Cir. 2002)). When a defendant undertakes a line of business under the protection of the laws and courts of a forum, and then injures someone else in the forum in relation to that line of business, it must expect that those same laws and courts will protect the plaintiff, too. See Burger King, 471 U.S. at 473-74 (when defendants "‘purposefully derive benefit’ from their interstate activities, it may well be unfair to allow them to escape having to account in other States for consequences that arise proximately from such activities; the Due Process Clause may not readily be wielded as a territorial shield to avoid interstate obligations that have been voluntarily assumed."). Accordingly, this Court has not hesitated to find personal jurisdiction in cases where the relationship between a defendant’s forum contacts and the lawsuit is far 37 Case 17-1569, Document 382, 11/20/2017, 2175977, Page57 of 120 more attenuated than selling or issuing trillions of dollars in worth of the price-fixed financial instruments directly into the forum. In EMI Christian Music Group, Inc. v. MP3tunes, LLC, 844 F.3d 79, 98 (2d Cir. 2016), for example, this Court held that the CEO of a music-sharing company could be sued for copyright infringement in New York because he "was aware both that [the company] had at least 400 users located in New York and that his company provided services to New York custom-ers." He did not have to intentionally commit the act of copyright infringement in New York, or even aim such conduct specifically and primarily at New York; it was enough that "[h]e knew … that MP3tunes had'purposefully avail[ed] [it]self of the privilege of conducting activities within [New York], thus invoking the benefits and protections of its laws.’" Id. (quoting Chloé, 616 F.3d at 171) (alterations in origi-nal). In EMI, as in Keeton and other binding precedents, jurisdiction adheres in a forum where the defendant "‘developed and served a market for its products,’" id., and then injures a plaintiff in ways that relate directly to that market. See also Pinker v. Roche Holdings Ltd., 292 F.3d 361, 371-72 (3d Cir. 2002) (finding personal juris-diction over a foreign defendant in a securities fraud case where the defendant sold its securities to an intermediary in the United States who then sold the securities onto investors because "[a] foreign corporation that purposefully avails itself of the American securities market has adequate notice that it may be haled into an Ameri-can court for fraudulently manipulating that market"). 38 Case 17-1569, Document 382, 11/20/2017, 2175977, Page58 of 120 Bank Brussels represents an even broader case, and its holding thus easily embraces this one. There, this Court held that a Puerto Rican law firm that wrote an allegedly tortious opinion in Puerto Rico about matters of Puerto Rican law regard-ing a security interest located in Puerto Rico was nonetheless subject to personal jurisdiction in New York, because the firm had undertaken activities "for the purpose of" gaining recognition "in the New York legal market," servicing the state, and "profit[ing] substantially therefrom." 305 F.3d at 127-30. It was enough that the allegedly tortious legal work related to the New York legal market it had actively developed. Then-judge Sotomayor explicitly held that even where contacts "may not have directly given rise to the plaintiff’s cause of action, they certainly'relate to’ it." Id. at 128. Bank Brussels decides this case a fortiori. Here, defendants’ efforts to promote their reputations in the U.S. financial markets by suppressing USD-LIBOR was the direct and immediate cause of every single plaintiff’s alleged antitrust injury. This Court reiterated that standard in Chloé, expressly refusing to use a "too narrow[] nexus requirement" and finding the defendant’s contacts sufficiently re-lated to the suit where the defendant "developed and served a market for its [offend-ing] products [in the forum]." 616 F.3d at 167, 171.9 This Court recognized that 9 Despite the repeated urging of the defense bar, the Supreme Court has like-wise steadfastly refused to narrow this test into a strict causal requirement. See, e.g., Bristol-Myers Squibb Petr. Br. 16-22 (arguing that only claims causally "arising 39 Case 17-1569, Document 382, 11/20/2017, 2175977, Page59 of 120 even making a one-time sale of a counterfeit handbag, along with maintaining a website offering other brands’ counterfeit goods, was enough to support personal jurisdiction in New York over a general claim of trademark infringement—not only claims limited to the one shipped bag. Id. at 165. Cast in this light, the suggestion by sixteen of the world’s most powerful fi-nancial institutions—all of which sold or issued billions of dollars of price-fixed, LIBOR-based financial instruments in the United States to United States counter-parties and otherwise conducted huge lines of financial business from the global nerve centers of that industry in the United States—that they are not amenable to process in the United States for financial misdeeds related to U.S. Dollar LIBOR-fixing that harmed U.S. plaintiffs is, frankly, ridiculous. Accordingly, neither de-fendants nor the district court have yet identified a precedent where plaintiffs’ suits against defendants with these kinds of contacts were rejected on personal-jurisdic-tion grounds. Consider, first, the suits by the OTC and direct-action plaintiffs. The OTC class consists only of plaintiffs who purchased the LIBOR-based instruments at issue directly from a defendant bank in the United States; thus, every claim in the OTC from" forum contacts should count); Bristol-Myers Squibb, 137 S. Ct. at 1780 (hold-ing that test remains whether claims "‘arise out of or relate to’" forum contacts) (emphasis added; alterations omitted). 40 Case 17-1569, Document 382, 11/20/2017, 2175977, Page60 of 120 class arises out of a LIBOR-based instrument one of the defendants sold in the United States. JA1023. Likewise, direct-action plaintiffs have all asserted claims based on price-fixed LIBOR-based instruments they purchased from defendants in the United States. Defendants chose to sell those price-fixed instruments to plaintiffs in the United States: to American businesses, like Texas Competitive Electric Hold-ings and Charles Schwab; to American cities and towns, like Baltimore and New Britain; to American universities, like Yale; and to American hospitals, like Jennie Stuart Medical Center. JA1015-16, 1386-88. That choice alone unambiguously subjects defendants to personal jurisdiction in suits by plaintiffs who were injured by those very price-fixed instruments. These sales were not idiosyncratic. Every defendant sold, and made illegally suppressed payments on, billions and often trillions of dollars’ worth of these price-fixed LIBOR-based financial instruments to thousands of counterparties in the United States, all of whom are in the OTC proposed class. CA11-13; 350-51. No defendant even disputes these U.S. sales. Many defendants, moreover, sold these price-fixed products through their U.S.-based employees working out of defendants’ United States offices and making calls from defendants’ United States telephone numbers. JA1015-16; JA1386-88; JA6995-96; JA7069; JA7234-35; JA7356-57. The OTC plaintiffs even sent the transactional documents consummating their purchases to defendants in the United 41 Case 17-1569, Document 382, 11/20/2017, 2175977, Page61 of 120 States. JA6995-96; JA7069; JA7234-35; JA7356. And, in support of these sales, defendants directly and persistently marketed their price-fixed products in the United States to these U.S. plaintiffs. Supra pp.15-19. Further, defendants made suppressed payments on those price-fixed instruments to the named-plaintiff counterparties in the United States and accepted payments through U.S. bank accounts. JA6996; JA7235; JA7410. That ends the inquiry. Due process is satisfied "where at least one element [of the cause of action] arises from the [defendant’s forum] contacts." Licci, 732 F.3d at 169. An element of these antitrust claims is that "the conspiracy caused injury to the plaintiff in the form of artificially inflated prices." In re Publ’n Paper Antitrust Litig., 690 F.3d 51, 61 (2d Cir. 2012). Defendants unmistakably committed acts that caused the injury to OTC plaintiffs and direct-action plaintiffs in the United States because that’s where defendants sold the OTC and direct-action plaintiffs the price-fixed instruments and sent them their illegally suppressed interest payments. Cases where a defendant sold the injury-causing product to the plaintiff in the forum are the archetype of personal jurisdiction. McGee v. Int’l Life Ins. Co., 355 U.S. 220, 223 (1957) ("It is sufficient for purposes of due process that the suit was based on a contract which had substantial connection with that State. The con-tract was delivered in California, the premiums were mailed from there and the in-sured was a resident of that State when he died."); World-Wide Volkswagen Corp. 42 Case 17-1569, Document 382, 11/20/2017, 2175977, Page62 of 120 v. Woodson, 444 U.S. 286, 297 (1980) ("[I]f the sale of a product … is not simply an isolated occurrence, but arises from the efforts of the manufacturer or distributor to serve directly or indirectly, the market for its product in other States, it is not unreasonable to subject it to suit in one of those States if its allegedly defective mer-chandise has there been the source of injury to its owner or to others."). In Burger King, 471 U.S. at 487, the Supreme Court expressly held that where—as here—a defendant enters into a contractual relationship with the plaintiff in the forum, the defendant subjected itself to that forum’s jurisdiction. It did not matter there that the defendant wasn’t physically present in the forum when it formed the contractual re-lationship. Id. at 476. And here, of course, defendants were physically present in the forum. See supra p.23. Indeed, the Supreme Court has found personal jurisdiction based on more re-mote contractual connections than that. In McGee, the Court held that a life-insur-ance beneficiary could sue in the State where the contract was delivered, even though the defendant insurance company was based in Texas and offered the policy there. The Supreme Court held it was "apparent" that personal jurisdiction in California was proper, because "[i]t is sufficient for purposes of due process that the suit was based on a contract which had substantial connection with that State." 355 U.S. at 223 (emphasis added). U.S. Dollar LIBOR-related contracts, regularly delivered to counterparties in the United States, causing antitrust injury to the plaintiffs who 43 Case 17-1569, Document 382, 11/20/2017, 2175977, Page63 of 120 bought or held them there, and on which illegally suppressed interest has been paid there using the U.S. banking system, easily fall within this binding precedent. In fact, when a defendant creates a product that causes harm in the United States—like, say, a price-fixed financial product that causes U.S. plaintiffs antitrust injury—they do not even need to sell it in the United States themselves to be subject to personal jurisdiction. The Supreme Court has made clear that where defendants "deliver [their] products into the stream of commerce with the expectation that they will be purchased" in a forum in which they make more than isolated sales, they are subject to personal jurisdiction there. See World-Wide VW, 444 U.S. at 298. Sub-sequent opinions by the Supreme Court elaborating this test have resulted in splin-tered plurality decisions, see Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 112 (1987); J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 882 (2011), but they have not abandoned this essential proposition—particularly where, as here, the "expectation that they will be purchased" is based on defendants’ own development of a massive market for the relevant product in the forum. See, e.g., McIntyre, 564 U.S. at 889 (Breyer, J., joined by Alito, J., concurring only in the judgment and relying on absence of developed market in case of one-off sale). And in this case, defendants knew perfectly well that most of their U.S. Dollar LIBOR-denominated products would not only be delivered into the United States, but sold there in trillions of dollars in value by (among others) the defendants themselves or their agents and 44 Case 17-1569, Document 382, 11/20/2017, 2175977, Page64 of 120 wholly-owned subsidiaries. See, e.g., In re Vitamin C Antitrust Litig., No. 06-MD-1738, 2012 WL 12355046, at *12 (E.D.N.Y. Aug. 8, 2012) (holding that known subsidiary activities establish knowledge of forum injury even if activities not at-tributed to parent). It is not only sales of LIBOR-denominated products like swaps that establish this connection; critically, the defendants also issued many billions of dollars of USD-LIBOR denominated debt in the United States, and underwrote USD-LIBOR bond issuances by others. Supra p.16. In so doing, they raised money from U.S. markets for themselves more cheaply than they otherwise could have, and also prof-ited from their lines of business trading LIBOR-based derivatives on U.S. exchanges (including Eurodollar futures and options on such futures), and creating and selling bond obligations for others. These are all contacts intimately related to their USD-LIBOR fixing conspiracy and the antitrust injuries it caused to plaintiffs in the United States. Indeed, the issuance of USD-LIBOR debt in the United States has the most intimate relationship possible to USD-LIBOR fixing, because it represents defendants availing themselves of capital on terms they manipulated to their benefit through their antitrust conspiracy to suppress LIBOR. See supra p.3. Defendants’ debt issuances, moreover, demonstrate that defendants’ U.S. con-tacts "relate to" claims about defendants’ LIBOR-fixing conspiracy even if one ac-cepts the district court’s erroneous premise that the conspiracy was formed solely to 45 Case 17-1569, Document 382, 11/20/2017, 2175977, Page65 of 120 project financial soundness. The banks did not project financial soundness into the ether for its own sake; they projected financial soundness in U.S. debt markets in order to raise money more effectively there. During the financial crisis, defendants were concerned that the (true) percep-tion that their borrowing costs were spiking might make it impossible for them to borrow money at reasonable rates, roll over debt, and prevent collapse or large losses. And while the banks were using LIBOR to project (untrue) financial sound-ness, they were simultaneously borrowing billions from the U.S. market by issuing debt here. Supra p.14. Accordingly, on the district court’s own terms, defendants’ extensive U.S. contacts relate directly to the conspiracy that caused the plaintiffs’ antitrust injury in the United States, making all conspirators subject to personal ju-risdiction here. Ultimately, defendants’ extensive sales and issuances of trillions of dollars of price-fixed instruments in the United States are more than sufficient to give rise to personal jurisdiction in the United States. But they are far from the only U.S. con-tacts the conspirators made related to their USD-LIBOR-fixing conspiracy; many more overt acts occurred here as well. See infra Part III. Particularly when these contacts are considered together, defendants would surely have foreseen being haled into the United States regarding antitrust injuries they caused in the United States related to their conspiracy to fix U.S. Dollar LIBOR. 46 Case 17-1569, Document 382, 11/20/2017, 2175977, Page66 of 120 Nor can defendants escape this obvious conclusion by asserting that some of the sales were only made by their wholly-owned subsidiaries or broker-dealer affil-iates; the district court has already found—at defendants’ behest—that for purposes of this antitrust conspiracy, defendants and their intra-bank affiliates must be re-garded as a common enterprise. In LIBOR IV, the district court expressly held that, for antitrust purposes, relationships crossing corporate lines within a given bank could not be a basis for a conspiracy because the banks were "single entities" for purposes of the Copperweld doctrine. See 2015 WL 6243526, at *95 n.127; Cop-perweld Corp. v. Indep. Tube Corp., 467 U.S. 752, 771-72 (1984). The view that parent, panel banks and their American subsidiaries are single entities for antitrust purposes entails the conclusion that they share a "complete unity of interest"—that "[t]heir objectives are common, not disparate; their general corporate actions are guided or determined not by two separate corporate consciousnesses, but one." 467 U.S. at 771. Simply put, the defendants’ and the district court’s view has been that—for purposes of antitrust claims—the defendants and their wholly-owned af-filiates are one. They must take the bitter with the sweet; if entities are so united in a purpose that they cannot conspire about it, then they are sufficiently united in that purpose that their contacts related to it must be imputed to each other. And, in any event, the plaintiffs have alleged that the parent banks exercised complete dominion over the subsidiaries, CA347-50, the district court did not purport to find otherwise, 47 Case 17-1569, Document 382, 11/20/2017, 2175977, Page67 of 120 and this allegation must be credited at the motion-to-dismiss stage. See, e.g., Roth v. Jennings, 489 F.3d 499, 510-11 (2d Cir. 2007) (district court "improperly consid-ered the representations in defendants’ filings for the truth of their assertions" which "raised issues of fact that should not have been determined at the pleading stage"). In sum, the defendants, both themselves and through their broker-dealer sub-sidiaries, established a host of direct U.S. contacts related to their USD-LIBOR-fixing conspiracy. Those contacts include the sale of price-fixed instruments in the United States—a fact that has never been treated as insufficient for personal juris-diction in an antitrust case. And they also include the issuance of USD-LIBOR-denominated debts in the United States—vindicating defendants’ avowed purpose of sustaining themselves in a liquidity crisis by raising money from the U.S. debt market at price-fixed rates well below the escalating prices that would have other-wise obtained. These contacts at least "relate to" the very core of defendants’ con-spiracy and the antitrust injuries plaintiffs suffered because of it. So even leaving aside that the district court’s decision does not comply with this Court’s mandate, this is a very easy case for personal jurisdiction. II. Defendants Are Subject to Personal Jurisdiction in the United States for Manipulating USD-LIBOR Under The "Effects" Test. The district court separately erred in applying the so-called "effects" test for specific personal jurisdiction. Under a proper application of that test, this case is 48 Case 17-1569, Document 382, 11/20/2017, 2175977, Page68 of 120 straightforward. Defendants knew it was impossible to achieve their purpose of us-ing LIBOR-fixing to borrow money more effectively in U.S. debt markets without necessarily harming all the appellants here, who were lending money in those mar-kets in USD-LIBOR-related instruments, receiving LIBOR-based payments from defendants in interest rate swaps and other instruments, or trading derivatives di-rectly tied to the value of LIBOR. Indeed, that knowledge is undeniable here, be-cause defendants sold trillions of dollars of those price-fixed LIBOR-based instru-ments in the United States themselves. Accordingly, when defendants decided to fix LIBOR, appellants’ resulting antitrust injuries were not "merely foreseeable"— they were inevitable; these sophisticated defendants knew with certainty that they would occur. Both antitrust and personal-jurisdiction doctrines treat the known effects of one’s intentional actions as intentional. See United States v. Patten, 226 U.S. 525, 543 (1913) (Section 1 "conspirators must be held to have intended the necessary and direct consequences of their acts and cannot be heard to say the contrary."); Leasco Data Processing Equip. Corp v. Maxwell, 468 F.2d 1326, 1341 (2d Cir. 1972) (while mere foreseeability is insufficient, action with knowledge, "or reason to know" of U.S. effects creates personal jurisdiction). Congress itself has confirmed that the Sherman Act reaches wholly foreign conduct whenever a defendant’s actions have a "direct, substantial, and reasonably foreseeable effect" on U.S. import or domestic 49 Case 17-1569, Document 382, 11/20/2017, 2175977, Page69 of 120 commerce. 15 U.S.C. §6a(1); Lotes Co. v. Hon Hai Precision Indus. Co., 753 F.3d 395, 404 (2d Cir. 2014). Defendants must thus answer in the United States when they knowingly cause direct and far-more-than-foreseeable antitrust injuries to plaintiffs in the United States. And that is exactly what they did here. Defendants’ knowledge of U.S. effects is not subject to reasonable dispute: Every defendant sold at least billions of dollars’ worth of the very products whose prices they were fixing into the United States. And the world’s most sophisticated financial corporations surely knew that the predominant markets for U.S. Dollar LIBOR-based debt and derivatives are in the United States. See supra p.15. Indeed, certain defendants, acting through their membership on the FXMMC, routinely met and openly discussed the suppression of USD-LIBOR and its effect on counterpar-ties, lenders, and investors in the United States. Supra p.17. They then dispatched FXMMC Secretary Ewan to the United States (not Japan, Germany, or Switzerland) in 2008 when the U.S. financial press reported that USD-LIBOR appeared strangely low. Supra p.18; JA4953; CA343. Under this Court’s holding in Leasco and the Supreme Court’s holding in Cal-der, that knowledge suffices to create personal jurisdiction over claims by U.S. plaintiffs arising from those U.S. effects. See Leasco, 468 F.2d at 1341. As in Cal-der, "[a]n individual injured in [the United States] need not go to [London] to seek 50 Case 17-1569, Document 382, 11/20/2017, 2175977, Page70 of 120 redress from persons who, though remaining in [London], knowingly cause the in-jury in [the United States]." 465 U.S. at 790. Accordingly, another court in the Southern District has recently found personal jurisdiction under the correct analysis in a harder (but still straightforward) case—about Swiss Franc (CHF) LIBOR— because plaintiffs there, as here, alleged that "effects on CHF LIBOR-based deriva-tives in the United States … were the purpose of defendants’ manipulation," and "the fact that defendants sought to benefit from foreign transactions as well as do-mestic ones does not negate that they purposefully availed themselves of this fo-rum." Sonterra Capital Master Fund Ltd. v. Credit Suisse Grp. AG, No. 15-CV-871, 2017 WL 4250480, at *50, *53 (S.D.N.Y. Sept. 25, 2017) (finding personal jurisdiction over foreign defendants based on "national contacts" analysis).10 Notably, this conclusion holds even if one accepts the district court’s errone-ous premise that projecting financial soundness was the only intended effect of de-fendants’ LIBOR-fixing conspiracy. That’s because, even on that view, defendants 10 As in Sonterra, plaintiffs here allege that defendants manipulated and sup-pressed LIBOR for the purpose of affecting prices of LIBOR-based instruments, in-cluding Eurodollar futures, transacted in the United States. Since this Court decided Gelboim, two other district courts, like Sonterra, have found personal jurisdiction over foreign defendants in cases asserting antitrust conspiracies involving bench-mark manipulation. See In re N. Sea Brent Crude Oil Futures Litig., No. 13-MD-2475, 2017 WL 2535731 (S.D.N.Y. June 8, 2017); In re Foreign Exch. Benchmark Rates Antitrust Litig., No. 13-CV-7789, 2016 WL 1268267 (S.D.N.Y. Mar. 31, 2016). 51 Case 17-1569, Document 382, 11/20/2017, 2175977, Page71 of 120 intended to create that reputational effect in the United States. See supra p.46. De-fendants were trying to make themselves look more financially stable to U.S. lend-ers, counterparties, and clients because they desperately needed to raise money from U.S. debt markets to weather the financial crisis, and likewise needed to appear fi-nancially stable enough to maintain their enormous financial businesses in the United States more generally. See supra p.16 n.5; Viral V. Acharya et al., How Do Global Banks Scramble for Liquidity? Evidence from the Asset-Backed Commercial Paper Freeze of 2007, at 1-2, 14-18 (Federal Reserve Bank of New York Staff Re-ports, No. 623, Aug. 2013, rev. Apr. 2016) (explaining that when asset-backed com-mercial paper markets froze at the beginning of the Relevant Period, foreign banks had to scramble for USD funding in U.S. markets, and became substantial partici-pants in the Federal Reserve’s relief program).11 This fact is confirmed by the in the United States described above. See supra p.18. Simply put, the principal targets of defendants’ conspiracy, however conceived, were the very financial markets in the United States where appellants were injured—markets that were indispensable to defendants. In fact, the district court’s holdings are now internally incoherent. As Judge Friendly’s decision in Leasco explains, for personal jurisdiction to obtain under the 11 Available at https://www.newyorkfed.org/medialibrary/media/research/staff_reports/sr623.pdf. 52 Case 17-1569, Document 382, 11/20/2017, 2175977, Page72 of 120 effects test, the "person sought to be charged must know, or have good reason to know, that his conduct will have effects" in the forum. Leasco, 468 F.2d at 1341. But in LIBOR IV, the district court sustained claims of fraud by the panel banks in submitting false LIBOR quotes by concluding that plaintiffs suffered injuries prox-imately caused by LIBOR manipulation and "were in the'class of persons’ whom defendants expected would rely on LIBOR." 2015 WL 6243526, at *62 (emphasis added). "Expected" here does not mean that the harm to appellants was "merely foreseeable": Defendants actually expected lenders and counterparties like appel-lants to rely on their manipulated USD-LIBOR because, if they didn’t, defendants could not have sustained the appearance of stability and the economical borrowing rates in U.S. debt markets that they so desperately needed. The district court’s holding also conflicts with this Court’s binding precedent. In re Magnetic Audiotape Antitrust Litigation held that a defendant’s presence at an out-of-forum meeting where fixing U.S. prices was discussed would alone arguably satisfy Calder’s effects test and subject that defendant to personal jurisdiction in the United States. 334 F.3d at 208 ("[I]n both plaintiffs’ complaint and materials sub-mitted in opposition to dismissal, they point to minutes from a meeting showing that an executive of SKM was present at a meeting in Seoul in which price-fixing activ-ities took place. For purposes of a motion to dismiss, this arguably would satisfy the'effects’ test frequently used in the analysis of specific personal jurisdiction."). 53 Case 17-1569, Document 382, 11/20/2017, 2175977, Page73 of 120 Scores of district courts have thus reached the same inexorable conclusion: A de-fendant who fixes the price of a product to be sold in the United States has engaged in wrongdoing intentionally directed at the American victims who pay or receive the fixed price, and so is subject to personal jurisdiction in the United States. See, e.g., In re Capacitors Antitrust Litig., No. 14-CV-3264, 2015 WL 3638551, at *2-3 (N.D. Cal. June 11, 2015); Vitamin C Antitrust Litig., 2012 WL 12355046, at *12; In re TFT-LCD (Flat Panel) Antitrust Litig., No. 07-MD-1827, 2011 WL 5444261, at *5 (N.D. Cal. Nov. 9, 2011); In re Fasteners Antitrust Litig., No. 08-MD-1912, 2011 WL 3563989, at *13 (E.D. Pa. Aug. 12, 2011); In re Bulk (Extruded) Graphite Prods. Antitrust Litig., No. 02-CV-6030, 2007 WL 2212713, at *6-9 (D.N.J. July 30, 2007); In re Vitamins Antitrust Litig., 270 F. Supp. 2d 15, 32 (D.D.C. 2003); see also In re W. States Wholesale Nat. Gas Antitrust Litig., 715 F.3d 716, 742-43 (9th Cir. 2013) (reversing district court’s dismissal for lack of personal jurisdiction over foreign defendants that manipulated price indices pursuant to a conspiracy to inflate natural gas prices). Neither the Supreme Court’s opinion in Walden v. Fiore, 134 S. Ct. 1115 (2014), nor this Court’s opinion in Waldman v. Palestine Liberation Organization, 835 F.3d 317 (2d Cir. 2016), change that result. Walden and Waldman both hold that a defendant’s knowledge that a plaintiff resides in a forum is insufficient to satisfy the effects test when the wrongful conduct is directed at the plaintiff and 54 Case 17-1569, Document 382, 11/20/2017, 2175977, Page74 of 120 causes the plaintiff’s injury while the plaintiff is outside that forum. See Walden, 134 S. Ct. at 1125 ("[N]one of petitioner’s challenged conduct had anything to do with Nevada itself."); Waldman, 835 F.3d at 338 ("In this case, the plaintiffs point us to no evidence that these indiscriminate terrorist attacks were specifically targeted against United States citizens, and the mere knowledge that United States citizens might be wronged in a foreign country goes beyond the jurisdictional limit set forth in Walden.") (emphasis added). In both cases, the plaintiffs were forum residents who were outside the forum when the defendant injured them outside of it. This case presents the exact opposite scenario: U.S. holders of U.S. Dollar LIBOR-linked instruments were injured at home in the United States by defendants’ fixing of U.S. prices in U.S. markets—a harm in and to U.S. commerce defendants expected to occur. If that is not "the sort of effect that is tethered to [the United States] in a[] meaningful way," nothing is. Walden, 134 S. Ct. at 1125. The district court’s rejection of personal jurisdiction under the effects test was driven by its truncated (and legally foreclosed) view of the conspiracy, SPA23, supra p.21. That is sufficient to reverse. But it is worth noting that the district court’s errors in this regard likely stemmed from a deeply flawed conception of the "effects test" itself articulated in one of the district court’s earlier opinions. In LIBOR IV, the district court asserted that plaintiffs could not meet Calder’s effects test because it believed the defendants had targeted the entire world, rather 55 Case 17-1569, Document 382, 11/20/2017, 2175977, Page75 of 120 than the United States in particular. In the district court’s words, it rejected effects-based jurisdiction because "[p]ersistent suppression was not intended to affect in-vestments in any specific place." LIBOR IV, 2015 WL 6243526, at *38 (emphasis added). That is directly contrary to this Court’s controlling precedent. EMI, 844 F.3d at 98 ("That MP3tunes served a national market, as opposed to a New York-specific market, has little bearing on our inquiry, as attempts to serve a nation-wide market constitute'evidence of [the defendant’s] attempt to serve the New York market, albeit indirectly.’") (quoting Kernan v. Kurz-Hastings, Inc., 175 F.3d 236, 243 (2d Cir. 1999)); Chloé, 616 F.3d at 171 ("As Chloé correctly asserts, that Queen Bee’s business attempted to serve a nationwide market does not diminish any pur-poseful contacts with Queen Bee’s New York consumers."). Antitrust cases finding personal jurisdiction in the United States under the effects test where the defendant engaged in a worldwide price-fixing conspiracy abound. See supra pp.53-54 (col-lecting cases). Indeed, the Supreme Court’s decision in Keeton held that suit-related forum contacts established in the course of exploiting a multi-forum market author-ize jurisdiction even where, unlike here, (1) the forum state was not the largest com-ponent of that larger market, and (2) the brunt of the harm from the defendant’s tortious conduct was felt elsewhere. See Keeton, 465 U.S. at 776. The law could not be otherwise. Accepting the district court’s reasoning "would work to insulate from prosecution those accused of wide-ranging frauds 56 Case 17-1569, Document 382, 11/20/2017, 2175977, Page76 of 120 merely because of their expansive scope." United States v. Hayes, 99 F. Supp. 3d 409, 423 n.4 (S.D.N.Y. 2015) (addressing a LIBOR criminal defendant’s argument and analogizing to personal jurisdiction). "[O]ne who enters in a conspiracy with a global scale'risk[s] being held to account for his illegal actions where[ever] his [] manipulation efforts had effects.’" Id. Accordingly, as in Calder, Keeton, Kernan, Chloé, and EMI, defendants’ fo-cus on a multi-forum market does not diminish its suit-related contacts arising from the U.S. effects it knowingly causes. And that is so whether one conceptualizes defendants’ knowledge of U.S. effects as satisfying the "effects" test or the "pur-poseful availment" test described above, because either is sufficient to reverse. See, e.g., Air Prods. & Controls, Inc. v. Safetech Int’l, Inc., 503 F.3d 544, 553 (6th Cir. 2007) (noting that factual basis for "effects" jurisdiction "enhances" independently sufficient basis for "purposeful availment" jurisdiction). Moreover, as was true under the "purposeful availment" test, reversal on ef-fects-based jurisdiction would likewise apply to all conspirators, because effects-test jurisdiction is based on the intent that the conspiracy’s effects would be felt by plain-tiffs in the United States. Simply put, each defendant that chose to join this conspir-acy "knew, or had good reason to know" that the antitrust injuries these plaintiffs suffered in the United States would inevitably occur. Leasco, 468 F.2d at 1342. 57 Case 17-1569, Document 382, 11/20/2017, 2175977, Page77 of 120 III. All Defendants Are Subject To Personal Jurisdiction In The United States Because Overt Acts In Furtherance Of The Conspiracy Occurred Here. Repeating a persistent error, the district court also rejected jurisdiction by dis-counting well-pleaded allegations that defendants undertook overt acts in further-ance of the conspiracy in the United States. The court acknowledged that, under settled precedents, jurisdiction over the entire conspiracy is available in the United States where plaintiffs: "(1) make a prima facie factual showing of a conspiracy; (2) allege specific facts warranting the inference that the defendant was a member of the conspiracy; and (3) show that the defendant's co-conspirator committed a tortious act pursuant to the conspiracy in this jurisdiction." Allstate Life Ins. Co. v. Linter Grp. Ltd., 782 F. Supp. 215, 221 (S.D.N.Y. 1992); see also United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 253-54 (1940) ("[S]ales by any one of the respond-ents in the Mid-Western area bound all. For a conspiracy is a partnership in crime; and an'overt act of one partner may be the act of all without any new agreement specifically directed to that act.’"); Van Riper v. United States, 13 F.2d 961, 967 (2d Cir. 1926) (Hand, J.) ("When men enter into an agreement for an unlawful end, they become ad hoc agents for one another, and have made'a partnership in crime.’ What one does pursuant to their common purpose, all do, and, as declarations may be such acts, they are competent against all."). But while the district court did not question this standard, SPA31, it badly misapplied it. 58 Case 17-1569, Document 382, 11/20/2017, 2175977, Page78 of 120 This Court’s holding in Gelboim that "appellants have plausibly alleged the existence of an inter-bank conspiracy" confirms that the first and second elements are met, 823 F.3d at 782, and the district court did not suggest otherwise. Instead, the district court relied on the third element, finding that "plaintiffs have failed to establish that any defendant committed an act in furtherance of the conspiracy in or directed at the United States." SPA7. But even (once again) granting the district court’s mistaken premise about the scope of the conspiracy, its reasoning in reaching that conclusion (once again) demonstrates what was already—in the second previous appeal in this case—aptly described as "the district court’s troubling pattern of de-ciding pleading motions as if they had a full factual record." See Appellants’ Br., 16-1189 C.A. Dkt. 201 at 22. Critically, the district court ignored that, under binding law and basic proce-dural principles, plaintiffs’ allegations must be credited, not defendants’. "[H]aving chosen'not to conduct a full-blown evidentiary hearing,’" the district court nonethe-less improperly resolved disputed facts in defendants’ favor, "rather than evaluating whether [plaintiffs] had, through [their] pleadings and affidavits, made a prima facie showing of personal jurisdiction'notwithstanding any controverting presentation by’ [defendants]." Dorchester, 722 F.3d at 86 (emphasis added). Viewed under the proper standard, plaintiffs’ allegations and factual materials are more than sufficient to show that at least one defendant committed an overt act 59 Case 17-1569, Document 382, 11/20/2017, 2175977, Page79 of 120 in furtherance of the price-fixing conspiracy in the United States. Indeed, although the district court denied jurisdictional discovery, see supra p.4, even the limited, class-certification discovery it granted has now yielded multiple examples of de-fendants’ New York and Stamford, Connecticut-based personnel’s involvement in defendants’ artificial LIBOR submissions to the BBA. CA24, 26, 28, 30, 31, 36, 39, 41, 43, 46, 48, 54, 57. Even more damning, several communications involved not only New York-based personnel, but also employees of multiple defendants, estab-lishing both the conspiracy itself and acts in furtherance of it occurring in New York. CA24, 42, 49, 50, 55. This point applies even if one accepts the district court’s artificially constricted view of the conspiracy’s motivations. Plaintiffs submitted several examples of communications involving New York or United States-based personnel that sought to manipulate LIBOR for reputational purposes. CA23, 28, 30, 34; CA739. Indeed, both the public record and the facts revealed through limited class-action discovery leave the record replete with evidence that should easily suffice to establish acts in furtherance of the conspiracy within the United States. For example, UBS admitted in its guilty plea that a senior UBS manager in Connecticut issued the standing directive to "submit low LIBOR contributions for USD LIBOR, and to keep submissions in the'middle of the pack of other banks’ expected LIBOR submis-60 Case 17-1569, Document 382, 11/20/2017, 2175977, Page80 of 120 sions." CA3-4 (citing UBS DOJ Statement of Facts ¶¶103, 108, 129). UBS imple-mented with precision this U.S.-based directive to collude for long stretches of the class period. Gelboim, 823 F.3d at 767, 782 n.20. This is plainly an overt act in furtherance of the conspiracy conducted in the United States, and so enough to sup-port conspiracy jurisdiction over all the co-conspirators. The district court’s rejection of this evidence is an incontrovertible violation of Dorchester and the motion-to-dismiss standard. Instead of crediting the plaintiffs’ allegations, the district court credited "UBS’s sworn statement to the Court" that no U.S. employee determined or submitted UBS’s LIBOR submissions, deeming that statement not "contradicted" by the Court’s pro-defendant interpretation of UBS’s admissions. SPA28. But it is not plaintiffs’ obligation to disprove, without any discovery or cross examination, all the possible interpretations of a piece of evi-dence. See In re DDAVP Direct Purchaser Antitrust Litig., 585 F.3d 677, 694-95 (2d Cir. 2009) (reversing dismissal even where defendants offered alternative inter-pretation of events alleged by plaintiff because "the possibility [of plaintiffs’ allega-tions] is sufficiently plausible to defeat the motion to dismiss" regardless of how "[i]t may turn out at trial"). More importantly, the district court manifestly failed to draw the most plaintiff-favoring inference from this evidence, as the motion-to-dis-miss standard unambiguously requires. 61 Case 17-1569, Document 382, 11/20/2017, 2175977, Page81 of 120 In fact, the statement of facts the district court recounts, in precise terms, a trader’s testimony that there was a "policy of submitting LIBORs for all currencies … in the middle of the pack of other banks’ expected LIBOR submissions," and that "[s]/he received this direction from the senior manager heading ALM, who in turn indicated that the direction came from the Stamford-based Group Treasury senior manager." [UBS DOJ SOF ¶129] (emphasis added). At an absolute minimum, this makes it plausible that the direction to suppress LIBOR did come from the United States—a sworn admission so indicating goes well beyond the kind of plausible al-legation this procedural stage requires. The same goes for Barclays. As the district court acknowledged, a Barclays employee, based in the United States, "has admitted that he instructed subordinates to submit artificially low USD LIBOR rates." SPA25 n.17. Again, the district court rejected this evidence by citing self-serving testimony from the individual, suggest-ing that the directive ultimately came from England. And again, this is unambiguous error. The district court cannot credit defendants’ assertions to defeat the easily plausible allegation that the direction came from the United States, and even if it could, the fact that the direction originated in England would not preclude that di-rections to suppress LIBOR were also given in the United States, in furtherance of the conspiracy, and subjecting the conspirators to personal jurisdiction here. 62 Case 17-1569, Document 382, 11/20/2017, 2175977, Page82 of 120 Moreover, in one case before this Court (and several others not yet before it) the BBA is independently named as a defendant, and it also undoubtedly acted as an agent for the conspirators generally—to whom one BBA executive referred as CA336. And the BBA also plainly acted in the United States; its staff was dispatched here in the and met with the CME and New York Federal Reserve. The JPMorgan evidence presents yet another egregious example of the district court resolving fact disputes in favor of the moving party. CA31. CA35. 63 Case 17-1569, Document 382, 11/20/2017, 2175977, Page83 of 120 Id. CA534. Id. This evidence (to put it mildly) at least supports a plau-sible allegation that JPMorgan—a U.S.-based company—was taking wrongful ac-tions in furtherance of defendants’ price-fixing, LIBOR-suppressing conspiracy in the United States. As with plaintiffs’ other factual allegations and submissions, however, the district court rejected this proof as well—in the space of one sentence. According to the district court, while "[p]laintiffs also allege that a senior JPMorgan executive in New York directed JPMorgan’s LIBOR submissions, … the substance of the ex-change contains nothing more than intrabank communications regarding the execu-tive’s thoughts on LIBOR levels." SPA28. This is not a fair reading at any stage of 64 Case 17-1569, Document 382, 11/20/2017, 2175977, Page84 of 120 the litigation, let alone the pleading stage. This Court has already found the conspir-acy itself plausible, Gelboim, 823 F.3d at 783; given that holding, these "intrabank communications" demonstrate an act, in the United States, taken in furtherance of carrying that conspiracy out. In fact, that "intrabank communication" was exactly what the district court was demanding: The U.S. executive here is coordinating a pattern of low LIBOR determinations and submissions by JPMorgan, to the point where he literally Even on the district court’s misunderstanding of the law and misconception of the conspiracy’s scope, these allegations easily suffice for personal jurisdiction over the conspirators. Had the district court "construe[d] the pleadings and affidavits in the light most favorable to plaintiffs, resolving all doubts in their favor," it could not have found plaintiffs’ allegations so "easily discounted." Supra p.23. Plaintiffs’ allega-tions sufficiently establish, at least at this stage, that at least one of these defendants committed an overt act in furtherance of the USD-LIBOR suppression conspiracy in the United States. Other examples of the district court’s manifest disregard for the jury’s constitutional role as factfinder are recited in the statement of facts and speak for themselves. See supra p.21. The district court’s distinct and troubling pattern of believing every self-serving submission and drawing every inference in the defend-ants’ favor, while declining to credit the plaintiffs’ well-pleaded facts, has now led to repeated errors of a kind this Court has described as "not" "close." Gelboim, 823 65 Case 17-1569, Document 382, 11/20/2017, 2175977, Page85 of 120 F.3d at 781. Plaintiffs made well-pleaded allegations that defendants committed overt acts in further of the suppression conspiracy in the United States and thus sat-isfied every element of conspiracy jurisdiction. IV. Affirming The District Court’s Holding Necessarily Invalidates A Federal Statute As Unconstitutional. As explained above, supra pp.7-9, and as this Court held in Daniel, 428 F.3d at 422, Congress chose to make worldwide personal jurisdiction available over a corporate defendant in any judicial district where venue is established over that de-fendant under the Clayton Act. See 15 U.S.C. §22. That venue is available wherever a defendant "transacts business"—a low bar easily cleared by maintaining an office, retaining an agent, making regular transactions of any kind, or the like. See Scophony Corp., 333 U.S. at 807 ("transacts business" refers to "[t]he practical, eve-ryday business or commercial concept of doing or carrying on business'of any sub-stantial character’") (emphasis added). Importantly, that business need not be re-lated to LIBOR or the plaintiffs’ claims to give rise to Clayton Act venue. Star Lines Ltd. v. P.R. Mar. Shipping Auth., 442 F. Supp. 1201, 1204 (S.D.N.Y. 1978); Nat’l Auto Brokers Corp. v. Gen. Motors Corp., 332 F. Supp. 280, 282 (S.D.N.Y. 1971). Plaintiffs thus argued below that, even if they could not establish jurisdiction under the tests above, venue had long since been established or conceded as to all defendants, and they could thus rely on an express congressional grant of personal 66 Case 17-1569, Document 382, 11/20/2017, 2175977, Page86 of 120 jurisdiction via Rule 4(k)(1)(C). See supra p.7. Inexplicably, however, after decid-ing that defendants did not have (what it erroneously believed to be) the required minimum contacts, the district court declined to consider this issue. That silence should not obscure the seriousness of this error: 15 U.S.C. §22 is clearly satisfied as to some or all of the cases here, which means that, in denying personal jurisdic-tion, the district court has necessarily held this statute unconstitutional. For actions filed in New York City—like the bondholder, OTC, and many direct-action cases—the venue question is not close. These defendants transact so much business in New York that this Court considered them "at home" here until the Supreme Court restricted that jurisdiction to the location of incorporation or prin-cipal place of business in Daimler. See Gucci Am. Inc. v. Weixing Li, 768 F.3d 122, 135-36 (2d Cir. 2014). In fact, the only basis on which the defendants have been allowed to raise personal jurisdiction so late in the day is that, before Daimler, a defendant "doing business" in New York could not contest jurisdiction there. See id.; SPA7. Defendants are thus estopped from arguing that they do not do business in New York. They cannot have it both ways: Either they were doing business and so can potentially raise personal jurisdiction later under Gucci; or they were never doing business here and have no excuse for raising personal jurisdiction many years too late. 67 Case 17-1569, Document 382, 11/20/2017, 2175977, Page87 of 120 As to actions filed outside New York, each set of plaintiffs has clearly made the required showing for Clayton Act venue, given the extensive business defendants do throughout the entire United States, both in general, and specifically relating to LIBOR-linked products. See JA8886-8977 (facts showing venue in all challenged jurisdictions). But that is unnecessary in any event because defendants conceded Clayton Act venue long ago. Rules 12(g) and 12(h) state unambiguously that venue objections are forfeited if not raised in an initial answer or motion; each plaintiff pleaded venue under the Clayton Act; and not one defendant contested venue until the sixth LIBOR decision. Many even conceded at this stage that Clayton Act venue was appropriate. See supra n.1. This forfeiture cannot possibly be excused because it is grossly prejudicial: If defendants had timely objected to Clayton Act venue outside New York City, plaintiffs who filed elsewhere could have refiled their cases or transferred them to the Southern District of New York. See 28 U.S.C. §1406(a) (permitting transfer to correct venue court to cure venue defect); Goldlawr, Inc. v. Heiman, 369 U.S. 463, 465-66 (1962) (reversing dismissal of antitrust action be-cause district court could transfer under §1406(a) even if it lacked personal jurisdic-tion); Daniel, 428 F.3d at 435-46 (transfer may be appropriate where claims would be untimely if refiled). After all, these plaintiffs have already been forced to litigate 68 Case 17-1569, Document 382, 11/20/2017, 2175977, Page88 of 120 in that venue for six years at the motion-to-dismiss stage because of the MDL pro-ceeding. In those circumstances, a venue transfer would be a trivially easy fix, and obviously "in the interest of justice." 28 U.S.C. §1406(a) This lays bare a dramatic constitutional conclusion lurking in the district court’s holding. Because all (or at least some) plaintiffs now plainly have Clayton Act venue for their suits where they were brought, Congress has authorized personal jurisdiction over the defendants in that venue no matter where in the world defend-ants may be "found." 15 U.S.C. §22. Accordingly, neither the district court nor this Court can hold that plaintiffs lack personal jurisdiction without holding a congres-sional statute unconstitutional. That cannot be right; no court has ever questioned the constitutionality of this 100-year old statute, and given the many easy bases for personal jurisdiction here, this Court should not be the first. At an absolute minimum, no court should reach such a dramatic conclusion without even attending to it. Federal Rule of Civil Procedure 5.1 and 28 U.S.C. §2403 required a certification to the Attorney General that this was a case "wherein the constitutionality of any Act of Congress affecting the public interest is drawn in question." If this Court is seriously considering the series of novel holdings that ends with the conclusion that 15 U.S.C. §22 is invalid, it should at least hear from the United States before doing so. The easier solution is to simply reverse on any of the grounds above. 69 Case 17-1569, Document 382, 11/20/2017, 2175977, Page89 of 120 V. As To Certain Plaintiffs, Defendants Have Forfeited Their Personal-Jurisdiction Defense. 12 A. OTC action In the OTC action, defendants moved to dismiss on the merits in June 2012, but waited until 2016—four years into litigation—to argue for the first time that personal jurisdiction was lacking. Defendants claim that their personal jurisdiction defense was not made available until January 14, 2014, when Daimler was decided. 134 S. Ct. at 746. But that cannot possibly excuse their many subsequent tactical decisions to continue pursuing rulings on the merits rather than dismissal for lack of personal jurisdiction; it is universally understood that affirmatively asking a Court to grant a judgment in a party’s favor forfeits any personal-jurisdiction defense by voluntary submission to the power of the court. See, e.g., City of New York v. Micka-lis Pawn Shop, LLC, 645 F.3d 114, 134 (2d Cir. 2011) ("A court will obtain, through implied consent, personal jurisdiction over a defendant if'[t]he actions of the de-fendant [during the litigation]... amount to a legal submission to the jurisdiction of the court’"); Hamilton, 197 F.3d at 61-62 (defense forfeited by substantial merits litigation while foregoing numerous opportunities to seek jurisdictional dismissal for prolonged period). 12 The Court reviews forfeiture rulings for abuse of discretion, see Hamilton v. Atlas Turner, Inc., 197 F.3d 58, 60 (2d Cir. 1999), and underlying conclusions of law de novo. See Corporación Mexicana v. Pemex, 832 F.3d 92, 100 (2d Cir. 2016). 70 Case 17-1569, Document 382, 11/20/2017, 2175977, Page90 of 120 Among other things, defendants forfeited their personal-jurisdiction defense most clearly when, on July 17, 2015—more than 18 months after Daimler—they filed an appellate brief urging this Court to affirm on the merits without raising a personal jurisdiction defense. 13-3565 C.A. Dkt. 464. In that brief, defendants made the tactical decision to try to convince this Court to enter a binding merits judgment with res judicata effect, rather than the dismissal without prejudice that comes from a lack of personal jurisdiction. Indeed, they even added a new merits ground for affirmance (on Twombly grounds) without adding their personal-jurisdiction argu-ment. See id. Only after they lost that appeal did defendants turn around and claim that the exercise of jurisdiction by the same Court violated their constitutional rights. Forfeiture rules are meant to defeat exactly that type of gamesmanship. See Pemex, 832 F.3d at 102 ("Having sought additional proceedings addressed to the merits, both here and in the Southern District, PEP may not now contest personal jurisdic-tion."); see also id. ("[W]hen a party seeks affirmative relief from a court, it normally submits itself to the jurisdiction of the court with respect to the adjudication of claims arising from the same subject matter."). Notably, defendants knew they could not have their cake and eat it too. On July 16, 2015—the day before their opposition brief was filed in Gelboim—defend-ants signed a "non-waiver" of personal jurisdiction "agreement" with a large group of plaintiffs on appeal, but not the OTC plaintiffs. See 13-3565 C.A. Dkt. 464 at 71 Case 17-1569, Document 382, 11/20/2017, 2175977, Page91 of 120 3-53 & n.23 (stating that Defendants had "non-waiver agreements" with some plain-tiffs). Their failure to get that waiver from OTC plaintiffs when they seemingly knew it was necessary only makes their forfeiture as to the OTC action all the more willful and obvious. B. Bondholder action. Meanwhile, although the bondholder plaintiffs agreed not to argue that de-fendants’ Gelboim brief represented a forfeiture of personal jurisdiction, that is be-cause defendants had long since forfeited a personal-jurisdiction defense in their case. After this Court returned the bondholder case to the district court in early 2014 (JA7935), defendants actively litigated the case for sixteen months in both the Su-preme Court and the district court without asserting any purportedly new personal-jurisdiction defense. Those actions were all designed to protect the judgment on the merits defendants had already won against bondholders’ right to immediately (and successfully) appeal it, see Gelboim, 823 F.3d at 769; their goal, in fact, was to delay review of that judgment indefinitely. Thus, their litigation activities included: (1) their January 21, 2014 opposition to bondholders’ request for Rule 54(b) certifica-tion of that judgment; (2) their appearance at the February 4, 2014 hearing thereon (ECF No. 551); (3) their May 27, 2014 brief in opposition to Bondholders’ petition for certiorari (JA7922 ¶10); (4) their October 15, 2014 merits brief in the Supreme Court (id. ¶14); (5) their December 9, 2014 appearance before the Supreme Court; 72 Case 17-1569, Document 382, 11/20/2017, 2175977, Page92 of 120 and (6) their January 25, 2015 filings in this Court relating to bondholders’ reinstated appeal and other LIBOR plaintiffs’ antitrust merits appeals (id. ¶17). Most of these actions expressly aimed to protect defendants’ favorable merits judgment from re-view. As in the OTC action, defendants knew what they were doing. On August 13, 2014, defendants challenged personal jurisdiction in 44 other LIBOR actions but chose not to seek that relief in the bondholder case, even though this court had re-turned the case in 2013. Instead, defendants purported to "reserve the right to assert personal jurisdiction as needed" in the future. JA7944 n.1. This, again, is the exact kind of gamesmanship the forfeiture rule is designed to protect against—defendants cannot sit on a personal-jurisdiction defense once they know it exists because they want to see first if they will win on the merits.13 See Pemex, 832 F.3d at 101; Ham-ilton, 197 F.3d at 61-63. The district court’s contrary ruling was an abuse of discre-tion, and should be reversed. In fact, both this Court and other courts in the Southern District have repeat-edly emphasized that, if a personal-jurisdiction defense becomes available mid-13 Under Tenth Circuit precedent, defendants waived personal jurisdiction by failing to raise it after Goodyear, 564 U.S. at 924, in their 2012 motions to dismiss. See Am. Fid. Assur. Co. v. Bank of N.Y. Mellon, 810 F.3d 1234 (10th Cir. 2016). This Court holds otherwise. See Gucci, 768 F.3d at 136. This Court should resolve this split itself, avoiding the need for the Supreme Court to intervene again in this case to decide a procedural issue. 73 Case 17-1569, Document 382, 11/20/2017, 2175977, Page93 of 120 stream, defendants are required to raise it "as soon as [its] cognizability is made apparent." Holzsager v. Valley Hosp., 646 F.2d 792, 796 (2d Cir. 1981). In Gucci, for example, this Court noted that the defendants’ "at home" objection was promptly raised—before this Court on appeal—only 66 days after Daimler. JA7922 ¶9; see also In re Vivendi, S.A. Sec. Litig., 838 F.3d 223, 264-65 (2d Cir. 2016) (new defense asserted "less than a month" after prior precedent overruled); Strauss v. Credit Lyon-nais, S.A., 175 F. Supp. 3d 3, 12, 14 (E.D.N.Y. 2016) (motion 23 days after Daim-ler); Weiss v. Nat. Westminster Bank PLC, 176 F. Supp. 3d 264, 273, 274 (E.D.N.Y. 2016) (same). The district court nonetheless described bondholders’ forfeiture argument as "beyond comprehension," concluding that because bondholders "appealed" this Court’s appellate-jurisdiction ruling "[i]n March 2014," defendants’ filings in the Supreme Court were "the only substantive submissions that defendants had the op-portunity to make in any court in the bondholder case between March 2013 and April 2015." SPA35. That is simply incorrect. This Court’s mandate returned the bond-holder case to the district court in early 2014, and defendants could have entered a newly discovered personal-jurisdiction defense at any time thereafter; Supreme Court proceedings on writ of certiorari do not divest lower courts of jurisdiction absent a stay. See, e.g., United States v. Sears, 411 F.3d 1240, 1242 (11th Cir. 2005). In fact, while the district court wrongly held below that the bondholder case "d[id] 74 Case 17-1569, Document 382, 11/20/2017, 2175977, Page94 of 120 not exist" as the result of the March 2013 dismissal, see SPA35 n.22; it took the opposite position in denying the bondholders even a partial final judgment under Rule 54(b) in January 2014, ECF No. 551 at 77-78. Throughout the relevant period, then, the district court itself had viewed the bondholders’ judgment as non-final, and non-final judgments are subject to revision at any time. See Fed. R. Civ. P. 54(b). Defendants just didn’t want to ask because they preferred their merits win. Defendants submitted themselves to the courts’ jurisdiction when they strate-gically withheld their Daimler-based defense for later use "as needed," while litigat-ing to preserve the dismissal with prejudice for as long as possible. As in Hamilton and Pemex, they forfeited the defense. C. UBS waived any jurisdictional challenge as to certain plaintiffs. The district court also erred in holding that UBS AG "did not waive its per-sonal jurisdiction defense as to the antitrust claims when it consented to personal jurisdiction" as to the common-law claims by plaintiffs Darby, Prudential, and Salix. SPA37 n.23. A defendant must raise personal jurisdiction in its first Rule 12 motion, or else the defense is waived. Mickalis Pawn Shop, 645 F.3d at 134 ("It is well-established that a party forfeits its defense of lack of personal jurisdiction by failing timely to raise the defense in its initial responsive pleading"). Here, UBS AG chose not to challenge personal jurisdiction as to these plaintiffs in their LIBOR IV motion 75 Case 17-1569, Document 382, 11/20/2017, 2175977, Page95 of 120 to dismiss, even though other foreign defendants did. UBS has thus waived that defense. The one decision cited by the district court does not contradict this well-settled principle, or relate at all to waiver. In Sunward Electronics, Inc. v. McDonald, the court merely recited, in dictum, the basic rule that a plaintiff must establish jurisdic-tion with respect to each claim asserted. 362 F.3d 17, 24 (2d Cir. 2004). This Court can easily reverse the district court on this issue. CONCLUSION The district court’s personal jurisdiction rulings should be reversed in their entirety. 76 Case 17-1569, Document 382, 11/20/2017, 2175977, Page96 of 120 Dated: November 20, 2017 Respectfully submitted, By:/s/Eric F. Citron By:/s/Steven E. Fineman THOMAS C. GOLDSTEIN STEVEN E. FINEMAN ERIC F. CITRON MICHAEL J. MIARMI CHARLES H. DAVIS LIEFF CABRASER HEIMANN GOLDSTEIN & RUSSELL, P.C. & BERNSTEIN, LLP 7475 Wisconsin Avenue, Suite 850 250 Hudson Street, 8th Floor Bethesda, Maryland 20814 New York, New York 10013 (202) 362-0636 (212) 355-9500 – and – Attorneys for the Schwab Plaintiffs-Appellants and Plaintiffs-Appellants BRENDAN P. GLACKIN LIEFF CABRASER HEIMANN Ellen Gelboim and Linda Zacher & BERNSTEIN, LLP 275 Battery Street, 29th Floor San Francisco, California 94111 (415) 956-1000 By:/s/Barry Barnett BARRY BARNETT Attorneys for the Schwab Plaintiffs-SUSMAN GODFREY L.L.P. Appellants and Plaintiff-Appellant 1000 Louisiana Street Bay Area Toll Authority Houston, Texas 77002 (713) 651-9366 By:/s/Richard W. Mithoff – and – RICHARD W. MITHOFF WILLIAM C. CARMODY MITHOFF LAW ARUN S. SUBRAMANIAN One Allen Center GENG CHEN Penthouse, Suite 3450 SUSMAN GODFREY L.L.P. 500 Dallas Street 1301 Avenue of the Americas Houston, Texas 77002 New York, New York 10019 (713) 654-1122 (212) 336-8330 – and – Attorneys for Plaintiff-Appellant City of Houston DREW HANSEN SUSMAN GODFREY L.L.P. 1201 Third Avenue By:/s/Nanci E. Nishimura Seattle, Washington 98101 NANCI E. NISHIMURA (206) 516-3880 COTCHETT, PITRE & MCCARTHY, – and – LLP Case 17-1569, Document 382, 11/20/2017, 2175977, Page97 of 120 MARC M. SELTZER 840 Malcolm Road, Suite 200 SUSMAN GODFREY L.L.P. Burlingame, California 94010 1901 Avenue of the Stars (650) 697-6000 Los Angeles, California 90067 – and – (310) 789-3100 ALEXANDER E. BARNETT – and – COTCHETT, PITRE & MCCARTHY, HILARY K. SCHERRER LLP NATHANIAL C. GIDDINGS 40 Worth Street, 10th Floor HAUSFELD LLP New York, New York 10013 1700 K Street, NW (212) 201-6820 Washington, DC 20006 (202) 540-7200 Attorneys for Plaintiffs-Appellants City of Houston, California Public Attorneys for Plaintiffs-Appellants Plaintiffs, County of Sonoma, The City of New Britain, Mayor and San Mateo County Joint Powers City Council of Baltimore, Vistra Financing Authority, Richmond Energy Corporation, Yale Univer-Joint Powers Financing Authority, sity, and Jennie Stuart Medical Successor Agency to the Richmond Center, Inc. Community Redevelopment Agency, Riverside Public Financ-ing Authority, David E. Sundstrom, East Bay Municipal Utility District, and Regents of the University of California By:/s/Karen L. Morris By:/s/David E. Kovel KAREN L. MORRIS DAVID E. KOVEL PATRICK F. MORRIS ANDREW M. MCNEELA R. MICHAEL LINDSEY KIRBY MCINERNEY LLP MORRIS AND MORRIS LLC 825 Third Avenue COUNSELORS AT LAW New York, New York 10022 4023 Kennett Pike, #254 (212) 371-6600 Wilmington, Delaware 19807 – and – (302) 426-0400 CHRISTOPHER LOVELL – and – LOVELL STEWART HALEBIAN DAVID H. WEINSTEIN JACOBSON LLP ROBERT S. KITCHENOFF 61 Broadway, Suite 501 Case 17-1569, Document 382, 11/20/2017, 2175977, Page98 of 120 WEINSTEIN KITCHENOFF & ASHER LLC New York, New York 10006 100 South Broad Street, Suite 705 (212) 608-1900 Philadelphia, Pennsylvania 19110 (215) 545-7200 Attorneys for Plaintiffs-Appellants Metzler Investment GmbH, Gary Attorneys for Plaintiffs-Appellants Francis, 303030 Trading LLC, At-Ellen Gelboim and Linda Zacher lantic Trading USA, LLC, FTC Futures Fund PCC Ltd., FTC Fu-tures Fund SICAV, and Nathaniel Haynes By:/s/Steig D. Olson By:/s/David C. Frederick STEIG D. OLSON DAVID C. FREDERICK DANIEL L. BROCKETT ANDREW C. SHEN DANIEL P. CUNNINGHAM KELLOGG, HANSEN, TODD, FIGEL QUINN EMANUEL URQUHART & FREDERICK, P.L.L.C. & SULLIVAN, LLP 1615 M Street, NW, Suite 400 51 Madison Avenue, 22nd Floor Washington, DC 20036 New York, New York 10010 (202) 326-7900 (212) 849-7000 – and – Attorneys for Plaintiff-Appellant National Credit Union Admin-JEREMY ANDERSEN istration Board QUINN EMANUEL URQUHART & SULLIVAN, LLP 865 South Figueroa Street, 10th Floor By:/s/Daniel L. Brockett Los Angeles, California 90017 DANIEL L. BROCKETT (213) 443-3000 STEIG D. OLSON DANIEL P. CUNNINGHAM Attorneys for Plaintiffs-Appellants QUINN EMANUEL URQUHART The City of Philadelphia and the & SULLIVAN, LLP Pennsylvania Intergovernmental 51 Madison Avenue, 22nd Floor Cooperation Authority New York, New York 10010 (212) 849-7000 – and – JEREMY ANDERSEN QUINN EMANUEL URQUHART & SULLIVAN, LLP Case 17-1569, Document 382, 11/20/2017, 2175977, Page99 of 120 865 South Figueroa Street, 10th Floor Los Angeles, California 90017 (213) 443-3000 Attorneys for Plaintiffs-Appellants Prudential Investment Portfolios 2, Darby Financial Products, Capital Ventures International, and Salix Capital US Inc. Case 17-1569, Document 382, 11/20/2017, 2175977, Page100 of 120 CERTIFICATE OF COMPLIANCE 1. This document complies with the type-volume limit as set out in this Court’s Aug. 24, 2017 Order (17-1569 Doc. 137) because, excluding the parts of the documents exempted by Fed. R. App. P. 32(f), the two principal briefs collectively contain 28,000 words or less. This document contains 17,978 words, excluding the parts of the document exempted by Fed. R. App. P. 32(f). 2. This document complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because this document has been prepared in a proportionally spaced typeface using Word 2016 in 14-point Times New Roman./s/Eric F. Citron Eric F. Citron Case 17-1569, Document 382, 11/20/2017, 2175977, Page101 of 120 CERTIFICATE OF SERVICE I hereby certify that I served a copy of the foregoing brief on all parties on November 20, 2017, through the Court’s CM/ECF system. Counsel for all parties are registered users of that system./s/Eric F. Citron Eric F. Citron THE DISTRICT COURT’S JURISDICTIONAL HOLDINGS ON PLAINTIFFS/APPELLANTS’ ANTITRUST CLAIMS AND APPELLATE POSTURE OF ACTIONS Defendants/Appellees filed motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(2) in a total of 19 separate individual and consolidated cases before the district court. Ten cases were filed outside of New York and transferred by the Judicial Panel on Multidistrict Litigation to the Southern District of New York for coordinated pretrial proceedings ("Transferred Cases"). The remaining cases were originally filed in the Southern District of New York ("NY Cases"). The following charts are based on charts that Defendants/Appellees prepared and submitted to the district court as appendices to their motions to dismiss Plaintiffs/Appellants’ antitrust claims for lack of personal jurisdiction. The charts have been modified to identify each action subject to the district court’s rulings by its appellate case name (except in cases where certain actions are not before this Court), appellate docket number, original forum, and appellate status. The chart also identifies (1) Defendants/Appellees that moved for dismissal for lack of personal jurisdiction based on Due Process objections ("Due Process Defendants") and (2) Defendants/Appellees that moved Case 17-1569, Document 382, 11/20/2017, 2175977, Page102 of 120 for dismissal for lack of personal jurisdiction on the additional ground of failure to establish venue pursuant to Section 1 12 of the Clayton Act ("Venue Defendants"). The district court granted all Rule 12(b)(2) motions to dismiss on Due Process grounds. Case 17-1569, Document 382, 11/20/2017, 2175977, Page103 of 120 2 Case 17-1569, Document 382, 11/20/2017, 2175977, Page104 of 120 (ANTITRUST CLAIMS DISMISSED IN THEIR ENTIRETY) TRANSFEREE CASES 3 Case 17-1569, Document 382, 11/20/2017, 2175977, Page105 of 120 1Plaintiffs in the Schwab appeal (which arises from three separately filed actions in the district court) consist of: Schwab Money Market Fund, Schwab Value Advantage Money Fund, Schwab Retirement Advantage Money Fund, Schwab Investor Money Fund, Schwab Case 17-1569, Document 382, 11/20/2017, 2175977, Page106 of 120 Cash Reserves, Schwab Advisor Cash Reserves, Schwab YieldPlus Fund, Schwab YieldPlus Fund Liquidation Trust, Charles Schwab Bank, N.A., Charles Schwab & Co., Inc., The Charles Schwab Corporation, Schwab Short-Term Bond Market Fund, Schwab Total Bond Market Fund, and Schwab U.S. Dollar Liquid Assets Fund. 5 Bay Area Toll 17-2343 N.D. Cal. All moving 7/28/2017 Bank of America Corporation Barclays Bank plc Authority foreign Bank of America, N.A. BBA defendants Barclays Bank plc BBA Enterprises Ltd. dismissed BBA BBA LIBOR Ltd. on personal BBA Enterprises Ltd. CSGAG jurisdiction BBA LIBOR Ltd. Deutsche Bank AG grounds; BTMU HBOS plc moving Citigroup Financial Products, Inc. HSBC Holdings PLC domestic Citigroup Inc. HSBC Bank PLC defendants CSGAG Lloyds Banking Group PLC dismissed Deutsche Bank AG The Norinchukin Bank on personal HBOS plc Portigon AG jurisdiction HSBC Holdings PLC Rabobank grounds HSBC Bank PLC RBS Group (defendant JPMorgan Chase & Co. WestImmo AG Citibank, JPMorgan Chase Bank, N.A. N.A. did not Lloyds Banking Group PLC move to The Norinchukin Bank dismiss on Portigon AG personal Rabobank jurisdiction RBS Group grounds) Royal Bank of Canada UBS AG Rule 54(b) WestImmo AG Partial Final Judgment Judgment Entered: 7/19/2017 Case 17-1569, Document 382, 11/20/2017, 2175977, Page107 of 120 6 Case 17-1569, Document 382, 11/20/2017, 2175977, Page108 of 120 Case 17-1569, Document 382, 11/20/2017, 2175977, Page109 of 120 Case 17-1569, Document 382, 11/20/2017, 2175977, Page110 of 120 Case 17-1569, Document 382, 11/20/2017, 2175977, Page111 of 120 Case 17-1569, Document 382, 11/20/2017, 2175977, Page112 of 120 Case 17-1569, Document 382, 11/20/2017, 2175977, Page113 of 120 Case 17-1569, Document 382, 11/20/2017, 2175977, Page114 of 120 Case 17-1569, Document 382, 11/20/2017, 2175977, Page115 of 120 Case 17-1569, Document 382, 11/20/2017, 2175977, Page116 of 120 Case 17-1569, Document 382, 11/20/2017, 2175977, Page117 of 120 Case 17-1569, Document 382, 11/20/2017, 2175977, Page118 of 120 Case 17-1569, Document 382, 11/20/2017, 2175977, Page119 of 120 Case 17-1569, Document 382, 11/20/2017, 2175977, Page120 of 120

SO-ORDERED SCHEDULING NOTIFICATION, setting Appellee HBOS plc and Lloyds Banking Group plc in 17-1569 Brief due date as 02/12/2018, FILED.[2178572] [17-1569, 17-1915, 17-1989, 17-2056, 17-2343, 17-2347, 17-2351, 17-2352, 17-2360, 17-2376, 17-2381, 17-2383, 17-2413] [Entered: 11/22/2017 12:00 PM]

Case 17-1569, Document 392, 11/22/2017, 2178572, Page1 of 6 UNITED STATES COURT OF APPEALS for the SECOND CIRCUIT ____________________________________________ At a Stated Term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 22nd day of November, two thousand and seventeen, ____________________________________ Schwab Short-Term Bond Market Fund, Schwab Total ORDER Bond Market Fund, Schwab U.S. Dollar Liquid Assets Docket No: 17-1569 Fund, Schwab Money Market Fund, Schwab Value Advantage Money Fund, Schwab Retirement Advantage Money Fund, Schwab Investor Money Fund, Schwab Cash Reserves, Schwab Advisor Cash Reserves, Charles Schwab Bank, N.A., Charles Schwab & Co., Inc., Schwab YieldPlus Fund, Schwab YieldPlus Fund Liquidation Trust, The Charles Schwab Corporation, City of New Britain, on behalf of itself and all others similarly situated, Mayor and City Council of Baltimore, City of Houston, Vistra Energy Corporation, Yale University, Jennie Stuart Medical Center, Inc., FTC Futures Fund PCC Ltd, on behalf of themselves and all others similarly situated, National Credit Union Administration Board, as Liquidating Agent of U.S. Central Federal Credit Union, Western Corporate Federal Credit Union, Members United Corporate Federal Credit Union, Southwest Corporate Federal Credit Union, and Constitution Corporate Federal Credit Union, Pennsylvania Intergovernmental Cooperation Authority, City of Philadelphia, Darby Financial Products, Salix Capital US Inc., Capital Ventures International, Prudential Investment Portfolios 2, FKA Dryden Core Investment Fund, on behalf of Prudendtial Core Short-Term Bond Fund, Bay Area Toll Authority, California Public Plaintiffs, Linda Zacher, Ellen Gelboim, on behalf of herself and all others similarly situated, Gary Francis, Metzler Investment GmbH, on behalf of itself and all others similarly situated, 303030 Trading LLC, Atlantic Trading USA, LLC, FTC Futures Fund SICAV, on behalf of themselves and all others similarly situated, Nathaniel Haynes, County of Sonoma, The San Mateo County Joint Powers Financing Authority, Richmond Joint Powers Financing Authority, Successor Agency to the Richmond Case 17-1569, Document 392, 11/22/2017, 2178572, Page2 of 6 Community Redevelopment Agency, Riverside Public Financing Authority, David E. Sundstrom, in his official capacity as Treasurer of the county of Sonoma for and on behalf of the Sonoma County Tresury Pool Investment, East Bay Municipal Utility District, Regents of the University of California, lllllllllllllllllllllPlaintiffs-Appellants, Carpenters Pension Fund of West Virginia, City of Dania Beach Police & Firefighters' Retirement System, Individually and on behalf of all others similarly situated, Ravan Investments, LLC, Richard Hershey, Jeffrey Laydon, on behalf of himself and all others similarly situated, Roberto E. Calle Gracey, AVP Properties, LLC, Community Bank & Trust, Berkshire Bank, Individually and On Behalf of All Others Similarly Situated, Elizabeth Lieberman, on behalf of themselves and all other similarly situated, Todd Augenbaum, on behalf of themselves and all others similarly situated, 33-35 Green Pond Road Associates, LLC, on behalf of itself and all others similarly situated, Courtyard at Amwell II, LLC, Annie Bell Adams, on behalf of herself and all others similarly situated, Jill Court Associates II, LLC, Greenwich Commons II, LLC, Dennis Paul Fobes, on behalf of himself and all others similarly situated, Leigh E. Fobes, on behalf of herself and all others similarly situated, Maidencreek Ventures II LP, Raritan Commons, LLC, Margaret Lambert, on behalf of herself and all others similarly situated, Lawrence W. Gardner, on behalf of themselves and all others similarly situated, Betty L. Gunter, on behalf of herself and all others similarly situated, Texas Competitive Electric Holdings Company LLC, Government Development Bank for Puerto Rico, Carl A. Payne, individually, and on behalf of other members of the general public similarly situated, Guaranty Bank and Trust Company, Individually and on behalf of all others similarly situated, Kenneth W. Coker, individually, and on behalf of other members of the general public similarly situated, The County of Mendocino, County of San Mateo, City of Richmond, County of San Diego, City of Riverside, County of Sacramento, San Diego Association of Governments, Joseph Amabile, Louie Amabile, individually & on behalf of Lue Trading, Inc., Norman Byster, Michael Cahill, Richard Deogracias, individually on behalf of Case 17-1569, Document 392, 11/22/2017, 2178572, Page3 of 6 RCD Trading, Inc., Heather M. Earle, on behalf of themselves and all others similarly situated, Henryk Malinowski, on behalf of themselves and all others similarly situated, Marc Federighi, individually on behalf of MCO Trading, Scott Federighi, individually on behalf of Katsco, Inc., Linda Carr, on behalf of themselves and all others similarly situated, Eric Friedman, on behalf of themselves and all others similarly situated, Robert Furlong, individually on behalf of XCOP, Inc., David Gough, County of Riverside, Jerry Weglarz, Brian Haggerty, individually on behalf of BJH Futures, Inc., David Klusendorf, Nathan Weglarz, on behalf of plaintiffs and a class, Directors Financial Group, individually and on behalf of all others similarly situated, Ronald Krug, Christopher Lang, SEIU Pension Plans Master Trust, individually and on behalf of all others similarly situated, Highlander Realty, LLC, John Monckton, Philip Olson, Jeffrey D. Buckley, Federal Home Loan Mortgage Corporation, Brett Pankau, David Vecchione, individually on behalf of Vecchione & Associates, Randall Williams, John Henderson, 303 Proprietary Trading LLC, Margery Teller, CEMA Joint Venture, Nicholas Pesa, Eduardo Restani, Principal Funds, Inc., PFI Bond & Mortgage Securities Fund, PFI Bond Market Index Fund, PFI Core Plus Bond I Fund, PFI Diversified Real Asset Fund, PFI Equity Income Fund, PFI Global Diversified Income Fund, PFI Government &High Quality Bond Fund, PFI High Yield Fund, PFI High Yield Fund I, PFI Income Fund, PFI Inflation Protection Fund, PFI Short-Term Income Fund, PFI Money Market Fund, PFI Preferred Securities Fund, Principal Variable Contracts Funds, Inc., PVC Asset Allocation Account, PVC Money Market Account, PVC Balanced Account, PVC Bond & Mortgage Securities Account, PVC Equity Income Account, PVC Government & High Quality Bond Account, PVC Income Account, PVC Short-Term Income Account, Principal Financial Group, Inc., Principal Financial Services, Inc., Principal Life Insurance Company, Principal Capital Interest Only I, LLC, Principal Commercial Funding, LLC, Principal Commercial Funding II, LLC, Principal Real Estate Investors, LLC, Vito Spillone, Brian McCormick, Maxwell Van De Velde, Individually and on behalf of all others similarly situated, Independence Trading, Inc., Insulators and Asbestos Workers Local #14, Individually and on behalf of all others similarly Case 17-1569, Document 392, 11/22/2017, 2178572, Page4 of 6 situated, Courmont & Wapner Associates, L.P., on behalf of itself and all others similarly situated, Salix Capital Ltd., FTC Capital GMBH, on behalf of themselves and all others similarly situated, City of New Britain Firefighters' and Police Benefit Fund, Direct Action Plaintiffs, Federal National Mortgage Association, Triaxx Prime CDO 2006-1, Ltd., Triaxx Prime CDO 2006-2, Ltd., Triaxx Prime CDO 2007-1, Ltd., Federal Deposit Insurance Corporation, as Receiver, Fran P. Goldsleger, National Asbestos Workers Pension Fund, Pension Trust for Operating Engineers, Hawaii Annuity Trust Fund for Operating Engineers, Cement Masons' International Association Employees' Trust Fund, individually and on behalf of all others similarly situated, Axiom Investment Advisors, LLC, Axiom HFT LLC, Axiom Investment Advisors Holdings L.P., Axiom Investment Company, LLC, Axiom Investment Company Holdings L.P., Axiom FX Investment Fund, L.P., Axiom FX Investment Fund II, L.P., Axiom FX Investment 2X Fund, L.P., Ephraim F. Gildor, Gildor Family Advisors L.P., Gildor Family Company L.P., Gildor Management, LLC, Prudential Core Taxable Money Market Fund, lllllllllllllllllllllPlaintiffs, v. Lloyds Banking Group plc, Bank of America Corporation, The Royal Bank of Scotland Group PLC, Citibank, N.A., Credit Suisse Group AG, Deutsche Bank AG, JPMorgan Chase & Co., The Norinchukin Bank, HBOS plc, Royal Bank of Canada, HSBC Bank PLC, Citigroup Inc., Cooperatieve Rabobank U.A., FKA Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., JPMorgan Chase Bank, N.A., The Bank of Tokyo-Mitsubishi UFJ, Ltd., Bank of America, N.A., Barclays Bank PLC, WestDeutsche ImmobilienBank AG, Portigon AG, FKA WestLB AG, HSBC Holdings PLC, WestLB AG, Societe Generale, Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., Credit Suisse International, Credit Suisse (USA), Inc., The Royal Bank of Scotland PLC, Credit Suisse AG, HSBC Securities (USA) Inc., HSBC Bank USA, N.A., HSBC Finance Corporation, Barclays Capital Inc., HSBC USA, Inc., The Hong Kong and Shanghai Banking Corporation Ltd., RBC Capital Case 17-1569, Document 392, 11/22/2017, 2178572, Page5 of 6 Markets LLC, Bank of America N.A., Rabobank Group, UBS Securities LLC, Citi Swapco Inc., BBA Enterprises, Ltd., BBA Libor, Ltd., British Bankers' Association, Merrill Lynch, Pierce, Fenner & Smith Incorporated, FKA Banc of America Securities, LLC, Citigroup Financial Products, Inc., J.P. Morgan Bank Dublin PLC, FKA Bear Stearns Bank PLC, UBS Limited, Credit Suisse Group International, UBS AG, lllllllllllllllllllllDefendants-Appellees, Credit Agricole S.A., Sumitomo Mitsui Banking Corporation, BNP Paribas S.A., RBS Citizens, N.A., incorrectly sued as othe Charter One Bank NA, RBS Citizens, N.A., Credit Suisse Group, NA, Citizens Bank of Massachusetts, agent of RBS Citizens Bank, NA, Barclays US Funding LLC, Deutsche Bank Financial LLC, Does 1 Through 10, Societe Generale Corporate & Investment Banking, National Association, Stephanie Nagel, John Does #1-#5, National Collegiate Student Loan Trust 2007-1, Chase Bank USA, N.A., J.P. Morgan Clearing Corp., Bank of America Securities LLC, Centrale Raiffeisen-Berenleenbank B.A., UBS AG, Royal Bank of Scotland Group PLC, Bank of Nova Scotia, Credit Suisse Securities (USA) LLC, RBS Group, Lloyds Bank PLC, FKA Lloyds Bank plc, Citizens Bank N.A., Credit Suisse Securities (USA) LLC, Citigroup Global Markets, Inc., The Royal Bank of Scotland PLC, Lloyds Bank plc, Citigroup Funding, Inc., Societe Generale S.A., Barclays PLC, J.P. Morgan Securities LLC, FKA J.P. Morgan Securities Inc., Deutsche Bank Securities Incorporated, Banc of America Securities, LLC, RBS Securities Inc., FKA Greenwich Capital Markets, Inc., Lloyds TSB Bank PLC, ICAP plc, J.P. Morgan Markets Ltd., Bank of America Home Loans, Merrill Lynch Capital Services, Inc., Citigroup Global Markets Limited, Merrill Lynch & Co., Inc., Merrill Lynch International Bank, Ltd., Bear Stearns Capital Markets, Inc., Barclays Capital (Cayman) Limited, Institute of International Bankers, Clearing House Association L.L.C., lllllllllllllllllllllDefendants. _______________________________________ Counsel for APPELLEES has filed a scheduling notification pursuant to the Court's Local Rule 31.2, setting February 12, 2018 as the brief filing date. Case 17-1569, Document 392, 11/22/2017, 2178572, Page6 of 6 It is HEREBY ORDERED that Appellees' brief must be filed on or before February 12, 2018. If the brief is not filed by that date, the appeal will proceed to a merits panel for determination forthwith, and Appellees will be required to file a motion for permission to file a brief and appear at oral argument. A motion to extend the time to file the brief or to seek other relief will not toll the filing date. See Local Rule 27.1(f)(1); cf. RLI Insurance Co. v. JDJ Marine, Inc., 716 F.3d 41, 43-45 (2d Cir. 2013). For The Court: Catherine O'Hagan Wolfe, Clerk of Court

LETTER, on behalf of Appellee JPMorgan Chase & Co. and JPMorgan Chase Bank, N.A., informing the Court on intentions of filing an opposition to motion to seal, RECEIVED. Service date 11/28/2017 by CM/ECF.[2181462] [17-1569]--[Edited 11/29/2017 by BM] [Entered: 11/28/2017 06:46 PM]

Case 17-1569, Document 396, 11/28/2017, 2181462, Page1 of 1 Simpson Thacher & Bartlett LLP 4 25 LEX INGTON A VE NUE NEW YORK, NY 100 17-39 54 TE LEP HONE: + 1-21 2-4 55-2000 FACSIMILE: + 1-21 2-4 55-2 502 Dir ect Di al Num ber E-mail A ddr es s +1-21 2-455-265 3 pgl uckow@s t bl aw.com BY ECF November 28, 2017 Re: In re LIBOR-Based Financial Instruments Antitrust Litigation, No. 17-1569(L), and consolidated cases Ms. Catherine O’Hagan Wolfe Clerk of the Court United States Court of Appeals for the Second Circuit Thurgood Marshall U.S. Courthouse 40 Foley Square New York, New York 10007 Dear Ms. Wolfe: We represent Defendants-Appellees JPMorgan Chase & Co. and JPMorgan Chase Bank, N.A. in the above-captioned appeals. On November 22, 2017, Plaintiffs-Appellants submitted a motion to file under seal the Joint Brief for Plaintiffs-Appellants Regarding Personal Jurisdiction, which motion Plaintiffs-Appellants requested the Court deny. See Doc. No. 393. On behalf of all Defendants-Appellees, we write to inform the Court that in accordance with Federal Rule of Appellate Procedure 27(a)(3)(A), Defendants-Appellees intend to submit a response in support of the motion to seal no later than December 4, 2017. Defendants-Appellees respectfully ask the Court to defer ruling on the motion until that time. Respectfully submitted,/s/Paul Gluckow Paul Gluckow cc: All Counsel of Record (via ECF) BEIJING HONG KONG HOUSTON LONDON LOS ANGELES PALO ALTO SÃO PAULO SEOUL TOKYO WASHINGTON, D.C.

LR 31.2 SCHEDULING NOTIFICATION, on behalf of Appellee RBC Capital Markets LLC and Royal Bank of Canada in 17-1569, Appellee Royal Bank of Canada in 17-1915, 17-1989, 17-2056, 17-2343, 17-2347, 17-2351, 17-2360, 17-2376, 17-2381, 17-2383, 17-2413, informing Court of proposed due date 02/12/2018, RECEIVED. Service date 12/12/2017 by CM/ECF.[2192160] [17-1569, 17-1915, 17-1989, 17-2056, 17-2343, 17-2347, 17-2351, 17-2352, 17-2360, 17-2376, 17-2381, 17-2383, 17-2413] [Entered: 12/12/2017 10:52 AM]

Case 17-1569, Document 408, 12/12/2017, 2192160, Page1 of 1 2900 K Street NW North Tower - Suite 200 Washington, DC 20007-5118 202.625.3500 tel www.kattenlaw.com.. ROBERT T. SMITH robert.smith1@kattenlaw.com 202.625.3616 direct VIA CM/ECF SYSTEM 202.339.6059 fax December 12, 2017 Catherine O'Hagan Wolfe Clerk of Court United States Court of Appeals for the Second Circuit Thurgood Marshall United States Courthouse 40 Foley Square New York, NY 10007 Re: In re LIBOR-Based Financial Instruments Antitrust Litigation, No. 17-1569 & Consolidated Cases (2d Cir.) Dear Ms. Wolfe: Along with my colleagues here at Katten Muchin Rosenman LLP, I represent the Royal Bank of Canada and RBC Capital Markets LLC in the consolidated appeals referenced above. I write to clarify that the Royal Bank of Canada and RBC Capital Markets LLC joined in the Scheduling Notification that Mr. Neal Katyal, Esq. filed on November 20, 2017. Consistent with Local Rule 31.2(a)(1)(B), that letter requested that the Court set the deadline for Appellees response briefs at February 12, 2018. Thereafter, on November 22, 2017, the Court issued an order setting February 12, 2018, as the deadline for Appellees—and listed among them were the Royal Bank of Canada and RBC Capital Markets LLC. Please do not hesitate the contact me if you have any questions. Very truly yours, /s/ Robert T. Smith Robert T. Smith CC: All Counsel, via CM/ECF AUSTIN CENTURY CITY CHARLOTTE CHICAGO HOUSTON IRVING LOS ANGELES NEW YORK ORANGE COUNTY SAN FRANCISCO BAY AREA SHANGHAI WASHINGTON, DC LONDON: KATTEN MUCHIN ROSENMAN UK LLP A limited liability partnership including professional corporations

SO-ORDERED SCHEDULING NOTIFICATION, setting Appellee BBA Enterprises, Ltd., BBA Libor, Ltd., Bank of America Corporation, Bank of America N.A., Bank of America, N.A., Barclays Bank PLC, Barclays Capital Inc., British Bankers' Association, Citi Swapco Inc., Citibank, N.A., Citigroup Financial Products Inc., Citigroup Inc., Cooperatieve Centrale Raiffeisen - Boerenleenbank B.A., Cooperatieve Rabobank U.A., Credit Suisse (USA), Inc., Credit Suisse AG, Credit Suisse Group AG, Credit Suisse Group International, Credit Suisse International, Deutsche Bank AG, HBOS plc, HSBC Bank PLC, HSBC Bank USA, N.A., HSBC Finance Corporation, HSBC Holdings PLC, HSBC Securities (USA) Inc., HSBC USA, Inc., J.P. Morgan Bank Dublin PLC, JPMorgan Chase & Co., JPMorgan Chase Bank, N.A., Lloyds Banking Group plc, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Portigon AG, RBC Capital Markets LLC, Rabobank Group, Royal Bank of Canada, Societe Generale, The Bank of Tokyo-Mitsubishi UFJ, Ltd., The Hong Kong and Shanghai Banking Corporation Ltd., The Norinchukin Bank, The Royal Bank of Scotland Group PLC, The Royal Bank of Scotland PLC, UBS AG, UBS Limited, UBS Securities LLC, WestDeutsche ImmobilienBank AG and WestLB AG in 17-1569 Brief due date as 02/12/2018, FILED.[2194370] [17-1569, 17-1915, 17-1989, 17-2056, 17-2343, 17-2347, 17-2351, 17-2352, 17-2360, 17-2376, 17-2381, 17-2383, 17-2413] [Entered: 12/14/2017 11:13 AM]

Case 17-1569, Document 412, 12/14/2017, 2194370, Page1 of 6 UNITED STATES COURT OF APPEALS for the SECOND CIRCUIT ____________________________________________ At a Stated Term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 14th day of December, two thousand and seventeen, ____________________________________ Schwab Short-Term Bond Market Fund, Schwab Total ORDER Bond Market Fund, Schwab U.S. Dollar Liquid Assets Docket No: 17-1569 Fund, Schwab Money Market Fund, Schwab Value Advantage Money Fund, Schwab Retirement Advantage Money Fund, Schwab Investor Money Fund, Schwab Cash Reserves, Schwab Advisor Cash Reserves, Charles Schwab Bank, N.A., Charles Schwab & Co., Inc., Schwab YieldPlus Fund, Schwab YieldPlus Fund Liquidation Trust, The Charles Schwab Corporation, City of New Britain, on behalf of itself and all others similarly situated, Mayor and City Council of Baltimore, City of Houston, Vistra Energy Corporation, Yale University, Jennie Stuart Medical Center, Inc., FTC Futures Fund PCC Ltd, on behalf of themselves and all others similarly situated, National Credit Union Administration Board, as Liquidating Agent of U.S. Central Federal Credit Union, Western Corporate Federal Credit Union, Members United Corporate Federal Credit Union, Southwest Corporate Federal Credit Union, and Constitution Corporate Federal Credit Union, Pennsylvania Intergovernmental Cooperation Authority, City of Philadelphia, Darby Financial Products, Salix Capital US Inc., Capital Ventures International, Prudential Investment Portfolios 2, FKA Dryden Core Investment Fund, on behalf of Prudendtial Core Short- Term Bond Fund, Bay Area Toll Authority, California Public Plaintiffs, Linda Zacher, Ellen Gelboim, on behalf of herself and all others similarly situated, Gary Francis, Metzler Investment GmbH, on behalf of itself and all others similarly situated, 303030 Trading LLC, Atlantic Trading USA, LLC, FTC Futures Fund SICAV, on behalf of themselves and all others similarly situated, Nathaniel Haynes, County of Sonoma, The San Mateo County Joint Powers Financing Authority, Richmond Joint Powers Financing Authority, Successor Agency to Case 17-1569, Document 412, 12/14/2017, 2194370, Page2 of 6 the Richmond Community Redevelopment Agency, Riverside Public Financing Authority, David E. Sundstrom, in his official capacity as Treasurer of the county of Sonoma for and on behalf of the Sonoma County Tresury Pool Investment, East Bay Municipal Utility District, Regents of the University of California, lllllllllllllllllllllPlaintiffs - Appellants, Carpenters Pension Fund of West Virginia, City of Dania Beach Police & Firefighters' Retirement System, Individually and on behalf of all others similarly situated, Ravan Investments, LLC, Richard Hershey, Jeffrey Laydon, on behalf of himself and all others similarly situated, Roberto E. Calle Gracey, AVP Properties, LLC, Community Bank & Trust, Berkshire Bank, Individually and On Behalf of All Others Similarly Situated, Elizabeth Lieberman, on behalf of themselves and all other similarly situated, Todd Augenbaum, on behalf of themselves and all others similarly situated, 33-35 Green Pond Road Associates, LLC, on behalf of itself and all others similarly situated, Courtyard at Amwell II, LLC, Annie Bell Adams, on behalf of herself and all others similarly situated, Jill Court Associates II, LLC, Greenwich Commons II, LLC, Dennis Paul Fobes, on behalf of himself and all others similarly situated, Leigh E. Fobes, on behalf of herself and all others similarly situated, Maidencreek Ventures II LP, Raritan Commons, LLC, Margaret Lambert, on behalf of herself and all others similarly situated, Lawrence W. Gardner, on behalf of themselves and all others similarly situated, Betty L. Gunter, on behalf of herself and all others similarly situated, Texas Competitive Electric Holdings Company LLC, Government Development Bank for Puerto Rico, Carl A. Payne, individually, and on behalf of other members of the general public similarly situated, Guaranty Bank and Trust Company, Individually and on behalf of all others similarly situated, Kenneth W. Coker, individually, and on behalf of other members of the general public similarly situated, The County of Mendocino, County of San Mateo, City of Richmond, County of San Diego, City of Riverside, County of Sacramento, San Diego Association of Governments, Joseph Amabile, Louie Amabile, individually & on behalf of Lue Trading, Inc., Norman Byster, Michael Cahill, Richard Deogracias, individually on behalf of Case 17-1569, Document 412, 12/14/2017, 2194370, Page3 of 6 RCD Trading, Inc., Heather M. Earle, on behalf of themselves and all others similarly situated, Henryk Malinowski, on behalf of themselves and all others similarly situated, Marc Federighi, individually on behalf of MCO Trading, Scott Federighi, individually on behalf of Katsco, Inc., Linda Carr, on behalf of themselves and all others similarly situated, Eric Friedman, on behalf of themselves and all others similarly situated, Robert Furlong, individually on behalf of XCOP, Inc., David Gough, County of Riverside, Jerry Weglarz, Brian Haggerty, individually on behalf of BJH Futures, Inc., David Klusendorf, Nathan Weglarz, on behalf of plaintiffs and a class, Directors Financial Group, individually and on behalf of all others similarly situated, Ronald Krug, Christopher Lang, SEIU Pension Plans Master Trust, individually and on behalf of all others similarly situated, Highlander Realty, LLC, John Monckton, Philip Olson, Jeffrey D. Buckley, Federal Home Loan Mortgage Corporation, Brett Pankau, David Vecchione, individually on behalf of Vecchione & Associates, Randall Williams, John Henderson, 303 Proprietary Trading LLC, Margery Teller, CEMA Joint Venture, Nicholas Pesa, Eduardo Restani, Principal Funds, Inc., PFI Bond & Mortgage Securities Fund, PFI Bond Market Index Fund, PFI Core Plus Bond I Fund, PFI Diversified Real Asset Fund, PFI Equity Income Fund, PFI Global Diversified Income Fund, PFI Government &High Quality Bond Fund, PFI High Yield Fund, PFI High Yield Fund I, PFI Income Fund, PFI Inflation Protection Fund, PFI Short-Term Income Fund, PFI Money Market Fund, PFI Preferred Securities Fund, Principal Variable Contracts Funds, Inc., PVC Asset Allocation Account, PVC Money Market Account, PVC Balanced Account, PVC Bond & Mortgage Securities Account, PVC Equity Income Account, PVC Government & High Quality Bond Account, PVC Income Account, PVC Short-Term Income Account, Principal Financial Group, Inc., Principal Financial Services, Inc., Principal Life Insurance Company, Principal Capital Interest Only I, LLC, Principal Commercial Funding, LLC, Principal Commercial Funding II, LLC, Principal Real Estate Investors, LLC, Vito Spillone, Brian McCormick, Maxwell Van De Velde, Individually and on behalf of all others similarly situated, Independence Trading, Inc., Insulators and Asbestos Workers Local #14, Individually and on behalf Case 17-1569, Document 412, 12/14/2017, 2194370, Page4 of 6 of all others similarly situated, Courmont & Wapner Associates, L.P., on behalf of itself and all others similarly situated, Salix Capital Ltd., FTC Capital GMBH, on behalf of themselves and all others similarly situated, City of New Britain Firefighters' and Police Benefit Fund, Direct Action Plaintiffs, Federal National Mortgage Association, Triaxx Prime CDO 2006-1, Ltd., Triaxx Prime CDO 2006-2, Ltd., Triaxx Prime CDO 2007-1, Ltd., Federal Deposit Insurance Corporation, as Receiver, Fran P. Goldsleger, National Asbestos Workers Pension Fund, Pension Trust for Operating Engineers, Hawaii Annuity Trust Fund for Operating Engineers, Cement Masons' International Association Employees' Trust Fund, individually and on behalf of all others similarly situated, Axiom Investment Advisors, LLC, Axiom HFT LLC, Axiom Investment Advisors Holdings L.P., Axiom Investment Company, LLC, Axiom Investment Company Holdings L.P., Axiom FX Investment Fund, L.P., Axiom FX Investment Fund II, L.P., Axiom FX Investment 2X Fund, L.P., Ephraim F. Gildor, Gildor Family Advisors L.P., Gildor Family Company L.P., Gildor Management, LLC, Prudential Core Taxable Money Market Fund, lllllllllllllllllllllPlaintiffs, v. Lloyds Banking Group plc, Bank of America Corporation, The Royal Bank of Scotland Group PLC, Citibank, N.A., Credit Suisse Group AG, Deutsche Bank AG, JPMorgan Chase & Co., The Norinchukin Bank, HBOS plc, Royal Bank of Canada, HSBC Bank PLC, Citigroup Inc., Cooperatieve Rabobank U.A., FKA Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., JPMorgan Chase Bank, N.A., The Bank of Tokyo- Mitsubishi UFJ, Ltd., Bank of America, N.A., Barclays Bank PLC, WestDeutsche ImmobilienBank AG, Portigon AG, FKA WestLB AG, HSBC Holdings PLC, WestLB AG, Societe Generale, Cooperatieve Centrale Raiffeisen - Boerenleenbank B.A., Credit Suisse International, Credit Suisse (USA), Inc., The Royal Bank of Scotland PLC, Credit Suisse AG, HSBC Securities (USA) Inc., HSBC Bank USA, N.A., HSBC Finance Corporation, Barclays Capital Inc., HSBC USA, Inc., Case 17-1569, Document 412, 12/14/2017, 2194370, Page5 of 6 The Hong Kong and Shanghai Banking Corporation Ltd., RBC Capital Markets LLC, Bank of America N.A., Rabobank Group, UBS Securities LLC, Citi Swapco Inc., BBA Enterprises, Ltd., BBA Libor, Ltd., British Bankers' Association, Merrill Lynch, Pierce, Fenner & Smith Incorporated, FKA Banc of America Securities, LLC, Citigroup Financial Products, Inc., J.P. Morgan Bank Dublin PLC, FKA Bear Stearns Bank PLC, UBS Limited, Credit Suisse Group International, UBS AG, lllllllllllllllllllllDefendants - Appellees, Credit Agricole S.A., Sumitomo Mitsui Banking Corporation, BNP Paribas S.A., RBS Citizens, N.A., incorrectly sued as othe Charter One Bank NA, RBS Citizens, N.A., Credit Suisse Group, NA, Citizens Bank of Massachusetts, agent of RBS Citizens Bank, NA, Barclays US Funding LLC, Deutsche Bank Financial LLC, Does 1 Through 10, Societe Generale Corporate & Investment Banking, National Association, Stephanie Nagel, John Does #1- #5, National Collegiate Student Loan Trust 2007-1, Chase Bank USA, N.A., J.P. Morgan Clearing Corp., Bank of America Securities LLC, Centrale Raiffeisen-Berenleenbank B.A., UBS AG, Royal Bank of Scotland Group PLC, Bank of Nova Scotia, Credit Suisse Securities (USA) LLC, RBS Group, Lloyds Bank PLC, FKA Lloyds Bank plc, Citizens Bank N.A., Credit Suisse Securities (USA) LLC, Citigroup Global Markets, Inc., The Royal Bank of Scotland PLC, Lloyds Bank plc, Citigroup Funding, Inc., Societe Generale S.A., Barclays PLC, J.P. Morgan Securities LLC, FKA J.P. Morgan Securities Inc., Deutsche Bank Securities Incorporated, Banc of America Securities, LLC, RBS Securities Inc., FKA Greenwich Capital Markets, Inc., Lloyds TSB Bank PLC, ICAP plc, J.P. Morgan Markets Ltd., Bank of America Home Loans, Merrill Lynch Capital Services, Inc., Citigroup Global Markets Limited, Merrill Lynch & Co., Inc., Merrill Lynch International Bank, Ltd., Bear Stearns Capital Markets, Inc., Barclays Capital (Cayman) Limited, Institute of International Bankers, Clearing House Association L.L.C., lllllllllllllllllllllDefendants. _______________________________________ Case 17-1569, Document 412, 12/14/2017, 2194370, Page6 of 6 Counsel for APPELLEES has filed a scheduling notification pursuant to the Court's Local Rule 31.2, setting February 12, 2018 as the brief filing date. It is HEREBY ORDERED that Appellees' brief must be filed on or before February 12, 2018. If the brief is not filed by that date, the appeal will proceed to a merits panel for determination forthwith, and Appellees will be required to file a motion for permission to file a brief and appear at oral argument. A motion to extend the time to file the brief or to seek other relief will not toll the filing date. See Local Rule 27.1(f)(1); cf. RLI Insurance Co. v. JDJ Marine, Inc., 716 F.3d 41, 43-45 (2d Cir. 2013). For The Court: Catherine O'Hagan Wolfe, Clerk of Court

NOTICE OF APPEARANCE AS ADDITIONAL COUNSEL, on behalf of Appellee British Bankers' Association, BBA Libor, Ltd. and BBA Enterprises, Ltd., FILED. Service date 02/07/2018 by CM/ECF. [2231626] [17-1569] [Entered: 02/07/2018 05:05 PM]

Case 17-1569, Document 415, 02/07/2018, 2231626, Page1 of 1 NOTICE OF APPEARANCE FOR SUBSTITUTE, ADDITIONAL, OR AMICUS COUNSEL Short Title: In re: LIBOR-Based Financial Instruments Antitrust Litigation _____ Docket No.: 17-1569(L) ________ Substitute, Additional, or Amicus Counsel's Contact Information is as follows: Name: Richard D. Owens Firm: Latham & Watkins LLP Address: 885 Third Avenue New York, NY 10022 Telephone: 212.906.1200 ___________________________ Fax: 212.751.4864 E-mail: richard.owens@lw.com Appearance for: British Bankers' Association, BBA Enterprises, Ltd., and BBA Libor, Ltd. / Defendants-Appellees (party/designation) Select One: G Substitute counsel (replacing lead counsel:) (name/firm) G Substitute counsel (replacing other counsel: _______) (name/firm) G Additional counsel (co-counsel with: Jeff G. Hammel / Latham & Watkins LLP ✔) (name/firm) G Amicus (in support of:) (party/designation) CERTIFICATION I certify that: ✔ G I am admitted to practice in this Court and, if required by Interim Local Rule 46.1(a)(2), have renewed my admission on March 24, 2015 OR G I applied for admission on. Signature of Counsel: /s/ Richard D. Owens Type or Print Name: Richard D. Owens

DEFECTIVE DOCUMENT, Motion to stay & remand [418], on behalf of Appellant Ellen Gelboim and Linda Zacher in 17-1569, Linda Zacher in 17-1915, FILED.[2232058] [17-1569, 17-1915, 17-1989, 17-2056, 17-2343, 17-2347, 17-2351, 17-2352, 17-2360, 17-2376, 17-2381, 17-2383, 17-2413] [Entered: 02/08/2018 12:32 PM]

Case 17-1569, Document 419, 02/08/2018, 2232058, Page1 of 3 United States Court of Appeals for the Second Circuit Thurgood Marshall U.S. Courthouse 40 Foley Square New York, NY 10007 ROBERT A. KATZMANN CATHERINE O'HAGAN WOLFE CHIEF JUDGE CLERK OF COURT Date: February 08, 2018 DC Docket #: 11-md-2262 Docket #: 17-1569cv DC Court: SDNY (NEW YORK Short Title: In Re: Libor-Based Financial CITY)DC Docket #: 11-cv-6409 DC Court: SDNY (NEW YORK CITY)DC Docket #: 11-cv-6411 DC Court: SDNY (NEW YORK CITY)DC Docket #: 11-cv-6412 DC Court: SDNY (NEW YORK CITY)DC Docket #: 11-md-2262 DC Court: SDNY (NEW YORK CITY)DC Docket #: 11-cv-5450 DC Court: SDNY (NEW YORK CITY)DC Docket #: 12-cv-1025 DC Court: SDNY (NEW YORK CITY)DC Docket #: 11-md-2262 DC Court: SDNY (NEW YORK CITY)DC Docket #: 11-cv-2613 DC Court: SDNY (NEW YORK CITY)DC Docket #: 11-md-2262 DC Court: SDNY (NEW YORK CITY)DC Docket #: 11-md-2262 DC Court: SDNY (NEW YORK CITY)DC Docket #: 14-cv-3094 DC Court: SDNY (NEW YORK CITY)DC Docket #: 13-cv-6020 DC Court: SDNY (NEW YORK CITY)DC Docket #: 11-md-2262 DC Court: SDNY (NEW YORK CITY)DC Docket #: 13-cv-4018 DC Court: SDNY (NEW YORK CITY)DC Docket #: 11-md-2262 DC Court: SDNY (NEW YORK CITY)DC Docket #: 13-cv-8799 DC Court: SDNY (NEW YORK CITY)DC Docket #: 14-cv-4189 DC Court: SDNY (NEW YORK CITY)DC Docket #: 13-cv-5616 DC Court: SDNY (NEW YORK CITY)DC Docket #: 11-md-2262 Case 17-1569, Document 419, 02/08/2018, 2232058, Page2 of 3 DC Court: SDNY (NEW YORK CITY)DC Docket #: 13-cv-4018 DC Court: SDNY (NEW YORK CITY)DC Docket #: 11-md-2262 DC Court: SDNY (NEW YORK CITY)DC Docket #: 13-cv-7394 DC Court: SDNY (NEW YORK CITY)DC Docket #: 11-md-2262 DC Court: SDNY (NEW YORK CITY)DC Docket #: 13-cv-5186 DC Court: SDNY (NEW YORK CITY)DC Docket #: 13-cv-626 DC Court: SDNY (NEW YORK CITY)DC Docket #: 13-cv-5221 DC Court: SDNY (NEW YORK CITY)DC Docket #: 13-cv-627 DC Court: SDNY (NEW YORK CITY)DC Docket #: 13-cv-597 DC Court: SDNY (NEW YORK CITY)DC Docket #: 13-cv-8644 DC Court: SDNY (NEW YORK CITY)DC Docket #: 13-cv-5569 DC Court: SDNY (NEW YORK CITY)DC Docket #: 13-cv-625 DC Court: SDNY (NEW YORK CITY)DC Docket #: 13-cv-5187 DC Court: SDNY (NEW YORK CITY) DC Judge: Buchwald NOTICE OF DEFECTIVE FILING On 2/8/2018 the MOTION, for___relief, on behalf of Appellant Ellen Gelboim and Linda Zacher was submitted in the above referenced case. The document does not comply with the FRAP or the Court's Local Rules for the following reason(s): ______ Failure to submit acknowledgment and notice of appearance (Local Rule 12.3) ______ Failure to file the Record on Appeal (FRAP 10, FRAP 11) ______ Missing motion information statement (T-1080 - Local Rule 27.1) ______ Missing supporting papers for motion (e.g, affidavit/affirmation/declaration) (FRAP 27) ______ Insufficient number of copies (Local Rules: 21.1, 27.1, 30.1, 31.1) ______ Improper proof of service (FRAP 25) Case 17-1569, Document 419, 02/08/2018, 2232058, Page3 of 3 ______ Missing proof of service ______ Served to an incorrect address ______ Incomplete service (Anders v. California 386 U.S. 738 (1967)) ______ Failure to submit document in digital format (Local Rule 25.1) ______ Not Text-Searchable (Local Rule 25.1, Local Rules 25.2), click here for instructions on how to make PDFs text searchable ______ Failure to file appendix on CD-ROM (Local Rule 25.1, Local Rules 25.2) ______ Failure to file special appendix (Local Rule 32.1) ______ Defective cover (FRAP 32) ______ Incorrect caption (FRAP 32) ______ Wrong color cover (FRAP 32) ______ Docket number font too small (Local Rule 32.1) ______ Incorrect pagination, click here for instructions on how to paginate PDFs (Local Rule 32.1) ______ Incorrect font (FRAP 32) ______ Oversized filing (FRAP 27 (motion), FRAP 32 (brief)) ______ Missing Amicus Curiae filing or motion (Local Rule 29.1) ______ Untimely filing ___x___ Incorrect Filing Event ___x___ Other: Select appropriate relief for motion. Please re-file as Motion to stay and remand. Please cure the defect(s) and resubmit the document, with the required copies if necessary, no later than 2/13/2018. The resubmitted documents, if compliant with FRAP and the Local Rules, will be deemed timely filed. Failure to cure the defect(s) by the date set forth above will result in the document being stricken. An appellant's failure to cure a defective filing may result in the dismissal of the appeal. Inquiries regarding this case may be directed to 212-857-8563.

NOTICE OF APPEARANCE AS ADDITIONAL COUNSEL, on behalf of Appellee HBOS plc and Lloyds Banking Group plc in 17-1569, Appellee HBOS plc, Lloyds Banking Group plc and Lloyds Banking Group plc in 17-1915, Appellee Lloyds Banking Group plc in 17-1989, 17-2056, 17-2343, -- HBOS plc and Lloyds Banking Group plc in 17-2351, 17-2376, 17-2381, 17-2383, 17-2413, FILED. Service date 02/12/2018 by CM/ECF. [2234064] [17-1569, 17-1915, 17-1989, 17-2056, 17-2343, 17-2347, 17-2351, 17-2352, 17-2360, 17-2376, 17-2381, 17-2383, 17-2413] [Entered: 02/12/2018 07:36 PM]

Case 17-1569, Document 423, 02/12/2018, 2234064, Page1 of 1 ÒÑÌ×ÝÛ ÑÚ ßÐÐÛßÎßÒÝÛ ÚÑÎ ÍËÞÍÌ×ÌËÌÛô ßÜÜ×Ì×ÑÒßÔô ÑÎ ßÓ×ÝËÍ ÝÑËÒÍÛÔ Í¸±®¬ Ì·¬´»æ ײ ®»æ Ô×ÞÑÎóÞ¿-»¼ Ú·²¿²½·¿´ ײ-¬®«³»²¬- ß²¬·¬®«-¬ Ô·¬·¹¿¬·±² ÁÁÁÁÁ ܱ½µ»¬ Ò±òæ ïéóïëêçøÔ÷ ÁÁÁÁÁÁÁÁ Í«¾­¬·¬«¬»ô ß¼¼·¬·±²¿´ô ±® ß³·½«­ ݱ«²­»´Ž­ ݱ²¬¿½¬ ײº±®³¿¬·±² ·­ ¿­ º±´´±©­æ Ò¿³»æ Õ·®¬· Ü¿¬´¿ Ú·®³æ ر¹¿² Ô±ª»´´- ËÍ ÔÔÐ ß¼¼®»--æ ëëë ̸·®¬»»²¬¸ ͬ®»»¬ô ÒÉô É¿-¸·²¹¬±² ÜÝô îðððì Ì»´»°¸±²»æ îðî êíé êëèí ÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁ Ú¿¨æ îðî êíé ëçïð Û󳿷´æ µ·®¬·ò¼¿¬´¿à¸±¹¿²´±ª»´´-ò½±³ ß°°»¿®¿²½» º±®æ Ô´±§¼- Þ¿²µ·²¹ Ù®±«° °´½ ¿²¼ ØÞÑÍ °´½ × Ü»º»²¼¿²¬-óß°°»´´»»- ø°¿®¬§ñ¼»-·¹²¿¬·±²÷ Í»´»½¬ Ѳ»æ Ù Í«¾-¬·¬«¬» ½±«²-»´ ø®»°´¿½·²¹ ´»¿¼ ½±«²-»´æ ÷ ø²¿³»ñº·®³÷ Ù Í«¾-¬·¬«¬» ½±«²-»´ ø®»°´¿½·²¹ ±¬¸»® ½±«²-»´æ ÁÁÁÁÁÁÁ ÷ ø²¿³»ñº·®³÷ Ù ß¼¼·¬·±²¿´ ½±«²-»´ ø½±ó½±«²-»´ ©·¬¸æ Ò»¿´ Õ«³¿® Õ¿¬§¿´ × Ø±¹¿² Ô±ª»´´- ËÍ ÔÔÐ ì ÷ ø²¿³»ñº·®³÷ Ù ß³·½«- ø·² -«°°±®¬ ±ºæ ÷ ø°¿®¬§ñ¼»-·¹²¿¬·±²÷ ÝÛÎÌ×Ú×ÝßÌ×ÑÒ × ½»®¬·º§ ¬¸¿¬æ ì Ù × ¿³ ¿¼³·¬¬»¼ ¬± °®¿½¬·½» ·² ¬¸·- ݱ«®¬ ¿²¼ô ·º ®»¯«·®»¼ ¾§ ײ¬»®·³ Ô±½¿´ Ϋ´» ìêòïø¿÷øî÷ô ¸¿ª» ®»²»©»¼ ³§ ¿¼³·--·±² ±² ÑÎ Ù × ¿°°´·»¼ º±® ¿¼³·--·±² ±² ò Í·¹²¿¬«®» ±º ݱ«²-»´æ ñ-ñ Õ·®¬· Ü¿¬´¿ ̧°» ±® Ю·²¬ Ò¿³»æ Õ·®¬· Ü¿¬´¿

BRIEF, on behalf of Appellee HBOS plc and Lloyds Banking Group plc in 17-1569, 17-1915, Appellee Lloyds Banking Group plc in 17-1989, 17-2056, 17-2343, 17-2376, 17-2383, 17-2413, FILED. Service date 02/12/2018 by CM/ECF. [2234077] [17-1569, 17-1915, 17-1989, 17-2056, 17-2343, 17-2347, 17-2351, 17-2352, 17-2360, 17-2376, 17-2381, 17-2383, 17-2413] [Entered: 02/12/2018 11:10 PM]

Case 17-1569, Document 424, 02/12/2018, 2234077, Page1 of 102 17-1569(L) 17-1915(CON), 17-1989(CON), 17-2056(CON), 17-2343(CON), 17-2347(CON), 17-2351(CON), 17-2352(CON), 17-2360(CON), 17-2376(CON), 17-2381(CON), 17-2383(CON), 17-2413(CON) IN THE United States Court of Appeals for the Second Circuit ___________________ IN RE LIBOR-BASED FINANCIAL INSTRUMENTS ANTITRUST LITIGATION (Caption Continued On Inside Covers) ____________________ Appeal from the United States District Court for the Southern District of New York ____________________ BRIEF FOR DEFENDANTS-APPELLEES REGARDING PERSONAL JURISDICTION ____________________ SIMPSON THACHER & BARTLETT LLP HOGAN LOVELLS US LLP 425 Lexington Avenue 555 13th Street NW New York, New York 10017 Washington, D.C. 20004 900 G Street NW 875 Third Avenue Washington, D.C. 20001 New York, New York 10022 Attorneys for Defendants-Appellees Attorneys for Defendants-Appellees JPMorgan Chase & Co. and Lloyds Banking Group plc and JPMorgan Chase Bank, N.A. HBOS plc (Appearances Continued Inside) Case 17-1569, Document 424, 02/12/2018, 2234077, Page2 of 102 SCHWAB SHORT-TERM BOND MARKET FUND, SCHWAB TOTAL BOND MARKET FUND, SCHWAB U.S. DOLLAR LIQUID ASSETS FUND, SCHWAB MONEY MARKET FUND, SCHWAB VALUE ADVANTAGE MONEY FUND, SCHWAB RETIREMENT ADVANTAGE MONEY FUND, SCHWAB INVESTOR MONEY FUND, SCHWAB CASH RESERVES, SCHWAB ADVISOR CASH RESERVES, CHARLES SCHWAB BANK, N.A., CHARLES SCHWAB & CO., INC., SCHWAB YIELDPLUS FUND, SCHWAB YIELDPLUS FUND LIQUIDATION TRUST, THE CHARLES SCHWAB CORPORATION, CITY OF NEW BRITAIN, on behalf of itself and all others similarly situated, MAYOR AND CITY COUNCIL OF BALTIMORE, CITY OF HOUSTON, VISTRA ENERGY CORPORATION, YALE UNIVERSITY, JENNIE STUART MEDICAL CENTER, INC., FTC FUTURES FUND PCC LTD, on behalf of themselves and all others similarly situated, NATIONAL CREDIT UNION ADMINISTRATION BOARD, as Liquidating Agent of U.S. Central Federal Credit Union, Western Corporate Federal Credit Union, Members United Corporate Federal Credit Union, Southwest Corporate Federal Credit Union, and Constitution Corporate Federal Credit Union, PENNSYLVANIA INTERGOVERNMENTAL COOPERATION AUTHORITY, CITY OF PHILADELPHIA, DARBY FINANCIAL PRODUCTS, SALIX CAPITAL US INC., CAPITAL VENTURES INTERNATIONAL, PRUDENTIAL INVESTMENT PORTFOLIOS 2 (f/k/a Dryden Core Investment Fund), on behalf of Prudential Core Short-Term Bond Fund, BAY AREA TOLL AUTHORITY, CALIFORNIA PUBLIC PLAINTIFFS, LINDA ZACHER, ELLEN GELBOIM, on behalf of herself and all others similarly situated, GARY FRANCIS, METZLER INVESTMENT GMBH, on behalf of itself and all others similarly situated, 303030 TRADING LLC, ATLANTIC TRADING USA, LLC, FTC FUTURES FUND SICAV, on behalf of themselves and all others similarly situated, NATHANIEL HAYNES, COUNTY OF SONOMA, THE SAN MATEO COUNTY JOINT POWERS FINANCING AUTHORITY, RICHMOND JOINT POWERS FINANCING AUTHORITY (Successor Agency to the Richmond Community Redevelopment Agency), RIVERSIDE PUBLIC FINANCING AUTHORITY, DAVID E. SUNDSTROM, in his official capacity as Treasurer of the county of Sonoma for and on behalf of the Sonoma County Treasury Pool Investment, EAST BAY MUNICIPAL UTILITY DISTRICT, REGENTS OF THE UNIVERSITY OF CALIFORNIA, Plaintiffs-Appellants, CARPENTERS PENSION FUND OF WEST VIRGINIA, CITY OF DANIA BEACH POLICE & FIREFIGHTERS' RETIREMENT SYSTEM, individually and on behalf of all others similarly situated, RAVAN INVESTMENTS, LLC, RICHARD HERSHEY, JEFFREY LAYDON, on behalf of himself and all others similarly situated, ROBERTO E. CALLE GRACEY, AVP PROPERTIES, LLC, COMMUNITY BANK & TRUST, BERKSHIRE BANK, individually and on behalf of all others similarly situated, ELIZABETH LIEBERMAN, on behalf of themselves and all other similarly situated, TODD AUGENBAUM, on Case 17-1569, Document 424, 02/12/2018, 2234077, Page3 of 102 behalf of themselves and all others similarly situated, 33-35 GREEN POND ROAD ASSOCIATES, LLC, on behalf of itself and all others similarly situated, COURTYARD AT AMWELL II, LLC, ANNIE BELL ADAMS, on behalf of herself and all others similarly situated, JILL COURT ASSOCIATES GROUP, INC., PRINCIPAL FINANCIAL SERVICES, INC., PRINCIPAL LIFE INSURANCE COMPANY, PRINCIPAL CAPITAL INTEREST ONLY I, LLC, PRINCIPAL COMMERCIAL FUNDING, LLC, PRINCIPAL COMMERCIAL FUNDING II, LLC, PRINCIPAL REAL ESTATE INVESTORS, LLC, VITO SPILLONE, BRIAN MCCORMICK, MAXWELL VAN DE VELDE, individually and on behalf of all others similarly situated, INDEPENDENCE TRADING, INC., INSULATORS AND ASBESTOS WORKERS LOCAL #14, individually and on behalf of all others similarly situated, COURMONT & WAPNER ASSOCIATES, L.P., on behalf of itself and all others similarly situated, SALIX CAPITAL LTD., FTC CAPITAL GMBH, on behalf of themselves and all others similarly situated, CITY OF NEW BRITAIN FIREFIGHTERS' AND POLICE BENEFIT FUND, DIRECT ACTION PLAINTIFFS, FEDERAL NATIONAL MORTGAGE ASSOCIATION, TRIAXX PRIME CDO 2006-1, LTD., TRIAXX PRIME CDO 2006-2, LTD., TRIAXX PRIME CDO 2007-1, LTD., FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver, FRAN P. GOLDSLEGER, NATIONAL ASBESTOS WORKERS PENSION FUND, PENSION TRUST FOR OPERATING ENGINEERS, HAWAII ANNUITY TRUST FUND FOR OPERATING ENGINEERS, CEMENT MASONS' INTERNATIONAL ASSOCIATION EMPLOYEES' TRUST FUND, individually and on behalf of all others similarly situated, AXIOM INVESTMENT ADVISORS, LLC, AXIOM HFT LLC, AXIOM INVESTMENT ADVISORS HOLDINGS L.P., AXIOM INVESTMENT COMPANY, LLC, AXIOM INVESTMENT COMPANY HOLDINGS L.P., AXIOM FX INVESTMENT FUND, L.P., AXIOM FX INVESTMENT FUND II, L.P., AXIOM FX INVESTMENT 2X FUND, L.P., EPHRAIM F. GILDOR, GILDOR FAMILY ADVISORS L.P., GILDOR FAMILY COMPANY L.P., GILDOR MANAGEMENT, LLC, PRUDENTIAL CORE TAXABLE MONEY MARKET FUND, Plaintiffs, – v. – LLOYDS BANKING GROUP PLC, BANK OF AMERICA CORPORATION, THE ROYAL BANK OF SCOTLAND GROUP PLC, CITIBANK, N.A., CREDIT SUISSE GROUP AG, DEUTSCHE BANK AG, JPMORGAN CHASE & CO., THE NORINCHUKIN BANK, HBOS PLC, ROYAL BANK OF CANADA, HSBC BANK PLC, CITIGROUP INC., COOPERATIEVE RABOBANK U.A. (f/k/a Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A.), JPMORGAN CHASE BANK, N.A., THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., BANK OF AMERICA, N.A., BARCLAYS BANK PLC, WESTDEUTSCHE IMMOBILIENBANK AG, PORTIGON AG (f/k/a WESTLB AG), HSBC HOLDINGS PLC, WESTLB AG, SOCIETE GENERALE, COOPERATIEVE CENTRALE RAIFFEISEN - Case 17-1569, Document 424, 02/12/2018, 2234077, Page4 of 102 BOERENLEENBANK B.A., CREDIT SUISSE INTERNATIONAL, CREDIT SUISSE (USA), INC., THE ROYAL BANK OF SCOTLAND PLC, CREDIT SUISSE AG, HSBC SECURITIES (USA) INC., HSBC BANK USA, N.A., HSBC FINANCE CORPORATION, BARCLAYS CAPITAL INC., HSBC USA, INC., THE HONG KONG AND SHANGHAI BANKING CORPORATION LTD., RBC CAPITAL MARKETS LLC, BANK OF AMERICA N.A., RABOBANK GROUP, UBS SECURITIES LLC, CITI SWAPCO INC., BBA ENTERPRISES, LTD., BBA LIBOR, LTD., BRITISH BANKERS' ASSOCIATION, MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED (f/k/a Banc of America Securities, LLC), CITIGROUP FINANCIAL PRODUCTS, INC., J.P. MORGAN BANK DUBLIN PLC (f/k/a Bear Stearns Bank PLC), UBS LIMITED, CREDIT SUISSE GROUP INTERNATIONAL, UBS AG, Defendants-Appellees, CREDIT AGRICOLE S.A., SUMITOMO MITSUI BANKING CORPORATION, BNP PARIBAS S.A., RBS CITIZENS, N.A., incorrectly sued as the Charter One Bank NA, RBS CITIZENS, N.A., CREDIT SUISSE GROUP, NA, CITIZENS BANK OF MASSACHUSETTS, Agent of RBS Citizens Bank, NA, BARCLAYS US FUNDING LLC, DEUTSCHE BANK FINANCIAL LLC, DOES 1 THROUGH 10, SOCIETE GENERALE CORPORATE & INVESTMENT BANKING, NATIONAL ASSOCIATION, STEPHANIE NAGEL, JOHN DOES #1- #5, NATIONAL COLLEGIATE STUDENT LOAN TRUST 2007-1, CHASE BANK USA, N.A., J.P. MORGAN CLEARING CORP., BANK OF AMERICA SECURITIES LLC, CENTRALE RAIFFEISEN-BERENLEENBANK B.A., UBS AG, ROYAL BANK OF SCOTLAND GROUP PLC, BANK OF NOVA SCOTIA, CREDIT SUISSE SECURITIES (USA) LLC, RBS GROUP, LLOYDS BANK PLC (f/k/a Lloyds Bank plc), CITIZENS BANK N.A., CREDIT SUISSE SECURITIES (USA) LLC, CITIGROUP GLOBAL MARKETS, INC., THE ROYAL BANK OF SCOTLAND PLC, LLOYDS BANK PLC, CITIGROUP FUNDING, INC., SOCIETE GENERALE S.A., BARCLAYS PLC, J.P. MORGAN SECURITIES LLC (f/k/a J.P. Morgan Securities Inc.), DEUTSCHE BANK SECURITIES INCORPORATED, BANC OF AMERICA SECURITIES, LLC, RBS SECURITIES INC. (f/k/a Greenwich Capital Markets, Inc.), LLOYDS TSB BANK PLC, ICAP PLC, J.P. MORGAN MARKETS LTD., BANK OF AMERICA HOME LOANS, MERRILL LYNCH CAPITAL SERVICES, INC., CITIGROUP GLOBAL MARKETS LIMITED, MERRILL LYNCH & CO., INC., MERRILL LYNCH INTERNATIONAL BANK, LTD., BEAR STEARNS CAPITAL MARKETS, INC., BARCLAYS CAPITAL (CAYMAN) LIMITED, INSTITUTE OF INTERNATIONAL BANKERS, CLEARING HOUSE ASSOCIATION L.L.C., Defendants. Case 17-1569, Document 424, 02/12/2018, 2234077, Page5 of 102 DAVIS POLK & WARDWELL LLP COVINGTON & BURLING LLP 450 Lexington Avenue The New York Times Building New York, New York 10017 620 Eighth Avenue Attorneys for Defendants-Appellees New York, New York 10018 Bank of America Corporation and 850 Tenth Street NW Bank of America, N.A. Washington, D.C. 20001 CLEARY GOTTLIEB STEEN & SULLIVAN & CROMWELL LLP HAMILTON LLP 1700 New York Avenue NW, Suite 700 One Liberty Plaza Washington, D.C. 20006 New York, New York 10006 Attorneys for Defendant-Appellee Attorneys for Defendants-Appellees The Bank of Tokyo-Mitsubishi UFJ, Ltd. Citibank, N.A. and Citigroup Inc. MILBANK, TWEED, HADLEY & SULLIVAN & CROMWELL LLP MCCLOY LLP 125 Broad Street 28 Liberty Street New York, New York 10004 New York, New York 10005 BOIES SCHILLER FLEXNER LLP Attorneys for Defendant-Appellee 575 Lexington Avenue Coöperatieve Rabobank U.A. New York, New York 10022 (f/k/a Coöperatieve Centrale Raiffeisen- Boerenleenbank B.A.) 1401 New York Avenue NW Washington, D.C. 20005 CAHILL GORDON & REINDEL LLP Attorneys for Defendant-Appellees 80 Pine Street Barclays PLC, Barclays Bank PLC, New York, New York 10005 and Barclays Capital Inc. Attorneys for Defendants-Appellees Credit Suisse Group AG, Credit Suisse HUGHES HUBBARD & REED LLP AG, Credit Suisse International, and One Battery Park Plaza Credit Suisse (USA), Inc. New York, New York 10004 Attorneys for Defendants-Appellees PAUL, WEISS, RIFKIND, WHARTON Portigon AG (f/k/a WestLB AG) and & GARRISON LLP Westdeutsche ImmobilienBank AG 1285 Avenue of the Americas New York, New York 10019 Attorneys for Defendant-Appellee Deutsche Bank AG Case 17-1569, Document 424, 02/12/2018, 2234077, Page6 of 102 GIBSON, DUNN & CRUTCHER LLP LOCKE LORD LLP 200 Park Avenue 3 World Financial Center New York, New York 10166 New York, New York 10281 Attorneys for Defendant-Appellee 2200 Ross Avenue, Suite 2800 UBS AG Dallas, Texas 75201 111 South Wacker Drive SIDLEY AUSTIN LLP Chicago, Illinois 60606 787 Seventh Avenue New York, New York 10019 Attorneys for Defendants-Appellees HSBC Holdings plc, HSBC Bank plc, Attorneys for Defendant-Appellee and HSBC Bank USA, N.A. The Norinchukin Bank BALLARD & LITTLEFIELD, LLP WILMER CUTLER PICKERING 3700 Buffalo Speedway, Suite 250 HALE AND DORR LLP Houston, Texas 77098 250 Greenwich Street New York, New York 10007 Attorneys for Defendants-Appellees HSBC Holdings plc and HSBC Bank Attorneys for Defendants-Appellees plc The Royal Bank of Scotland Group plc and The Royal Bank of Scotland plc KATTEN MUCHIN ROSENMAN LLP 525 West Monroe Street CLIFFORD CHANCE US LLP Chicago, Illinois 60661 31 West 52nd Street New York, New York 10019 2900 K Street NW, Suite 200 Washington, D.C. 20007 Attorneys for Defendants-Appellees The Royal Bank of Scotland plc and RBS Attorneys for Defendants-Appellees Securities Inc. (f/k/a Greenwich Capital Royal Bank of Canada and RBC Markets, Inc.) Capital Markets, LLC LATHAM & WATKINS LLP MAYER BROWN LLP 885 Third Avenue 1221 Avenue of the Americas New York, New York 10022 New York, New York 10020 Attorneys for Defendants-Appellees Attorneys for Defendant-Appellee British Bankers' Association, BBA Société Générale Enterprises Ltd., and BBA LIBOR Ltd. Case 17-1569, Document 424, 02/12/2018, 2234077, Page7 of 102 CORPORATE DISCLOSURE STATEMENT Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, the undersigned Defendants-Appellees make the following disclosures: BANK OF AMERICA CORPORATION AND BANK OF AMERICA, N.A. Defendant-Appellee Bank of America Corporation is a publicly held company, with no parent corporation, and no publicly held company owns 10% or more of Bank of America Corporation's stock. Defendant-Appellee Bank of America, N.A. is a National Association and is 100% owned by BANA Holding Corporation. BANA Holding Corporation is 100% owned by BAC North America Holding Company. BAC North America Holding Company is 100% owned by NB Holdings Corporation. NB Holdings Corporation is 100% owned by Bank of America Corporation. THE BANK OF TOKYO-MITSUBISHI UFJ, LTD. Defendant-Appellee The Bank of Tokyo-Mitsubishi UFJ, Ltd. is a wholly owned subsidiary of Mitsubishi UFJ Financial Group, Inc., a publicly held corporation. No publicly held company owns 10% or more of Mitsubishi UFJ Financial Group, Inc.'s stock. BARCLAYS PLC, BARCLAYS BANK PLC AND BARCLAYS CAPITAL INC. Defendant-Appellee Barclays PLC is a publicly held corporation, and no publicly held company owns 10% or more of Barclays PLC's stock. i Case 17-1569, Document 424, 02/12/2018, 2234077, Page8 of 102 Defendant-Appellee Barclays Bank PLC is a wholly owned subsidiary of Barclays PLC, which is a publicly held corporation, and no publicly held company owns 10% or more of Barclays Bank PLC's stock. Defendant-Appellee Barclays Capital Inc. identifies the following as parent corporations or publicly held corporations that own 10% or more of any class of its equity interests: Barclays PLC, Barclays Bank PLC, Barclays US LLC, and Barclays Group US Inc. BRITISH BANKERS' ASSOCIATION, BBA ENTERPRISES LTD., AND BBA LIBOR LTD. Defendant-Appellee British Bankers' Association has no parent corporation, and no publicly held corporation owns 10% or more of its stock. Defendant-Appellee BBA Enterprises Ltd. is beneficially owned by the British Bankers' Association, an unincorporated association. No publicly held corporation beneficially owns 10% or more of its stock. Defendant-Appellee BBA LIBOR Ltd.* is beneficially owned by the British Bankers' Association, an unincorporated association. No publicly held corporation beneficially owns 10% or more of its stock. * On or about September 23, 2014, BBA LIBOR Ltd. changed its name to BBA Trent Ltd. ii Case 17-1569, Document 424, 02/12/2018, 2234077, Page9 of 102 CITIBANK, N.A. AND CITIGROUP INC. Defendant-Appellee Citibank, N.A. is wholly owned by Citicorp, which in turn is wholly owned by Citigroup Inc. Citigroup Inc., a publicly held corporation, therefore indirectly owns 10% or more of the stock of Citibank, N.A. Defendant-Appellee Citigroup Inc. is a publicly held corporation. It has no parent corporation, and no publicly held corporation owns 10% or more of its stock. COÖPERATIEVE RABOBANK U.A. Defendant-Appellee Coöperatieve Rabobank U.A. (f/k/a Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A.) has no parent corporation, and no publicly held company owns 10% or more of Coöperatieve Rabobank U.A. CREDIT SUISSE GROUP AG, CREDIT SUISSE AG, CREDIT SUISSE INTERNATIONAL, AND CREDIT SUISSE (USA), INC.† Defendant-Appellee Credit Suisse Group AG ("CSGAG") is a corporation organized under the laws of the Country of Switzerland, and its shares are publicly traded on the SIX Swiss Exchange and are also listed on the New York Stock Exchange. CSGAG has no parent company, and no publicly held company owns 10% or more of its stock. † "Credit Suisse Group International" is listed as a Defendant-Appellee in Case No. 17-2383. However, this entity does not exist. In re LIBOR-Based Fin. Instruments Antitrust Litig. ("LIBOR IV"), No. 11-MDL-2262-NRB, 2015 WL 6243526, at *158 (S.D.N.Y. Oct. 20, 2015). iii Case 17-1569, Document 424, 02/12/2018, 2234077, Page10 of 102 Defendant-Appellee Credit Suisse AG ("CSAG") is a wholly owned subsidiary of CSGAG, which has publicly registered debt securities and warrants in the United States and elsewhere. Defendant-Appellee Credit Suisse International is principally owned by CSAG and CSGAG. Defendant-Appellee Credit Suisse (USA), Inc. is a wholly owned subsidiary of Credit Suisse Holdings (USA), Inc., which is jointly owned by CSAG and CSGAG. DEUTSCHE BANK AG Defendant-Appellee Deutsche Bank AG is a publicly held corporation organized under the laws of Germany that has no parent corporation, and no publicly held company owns 10% or more of Deutsche Bank AG's stock. HSBC HOLDINGS PLC, HSBC BANK PLC, AND HSBC BANK USA, N.A. Defendant-Appellee HSBC Holdings plc is a publicly held corporation. HSBC Holdings plc does not have a parent corporation, and no publicly held company owns 10% or more of HSBC Holdings plc's stock. Defendants-Appellees HSBC Bank plc and HSBC Bank USA, N.A. are each either a direct or an indirect, wholly owned subsidiary of HSBC Holdings plc. iv Case 17-1569, Document 424, 02/12/2018, 2234077, Page11 of 102 JPMORGAN CHASE & CO. AND JPMORGAN CHASE BANK, N.A. Defendant-Appellee JPMorgan Chase & Co. is a publicly held corporation. JPMorgan Chase & Co. does not have a parent corporation, and no publicly held company owns 10% or more of JPMorgan Chase & Co.'s stock. Defendant-Appellee JPMorgan Chase Bank, N.A. is a wholly owned subsidiary of JPMorgan Chase & Co. No other publicly held company owns 10% or more of JPMorgan Chase Bank, N.A.'s stock. LLOYDS BANKING GROUP PLC AND HBOS PLC Defendant-Appellee Lloyds Banking Group plc is a publicly held corporation, and no publicly held company owns 10% or more of Lloyds Banking Group plc's stock. Defendant-Appellee HBOS plc is a wholly owned subsidiary of Defendant- Appellee Lloyds Banking Group plc, which is a publicly held corporation, and no other publicly held company owns 10% or more of HBOS plc's stock. ROYAL BANK OF CANADA AND RBC CAPITAL MARKETS, LLC Defendant-Appellee Royal Bank of Canada is a publicly held corporation organized under the laws of Canada. Royal Bank of Canada has no parent company, and no publicly held company owns 10% or more of its stock. RBC Capital Markets, LLC is an indirect, wholly-owned subsidiary of Royal Bank of Canada. v Case 17-1569, Document 424, 02/12/2018, 2234077, Page12 of 102 THE ROYAL BANK OF SCOTLAND GROUP PLC, THE ROYAL BANK OF SCOTLAND PLC, AND RBS SECURITIES INC. Defendant-Appellee the Royal Bank of Scotland Group plc ("RBS Group") is a publicly traded limited company organized under the laws of Scotland. No publicly held entity owns more than 10% of the shares of RBS Group. Defendant-Appellee The Royal Bank of Scotland plc is a wholly owned subsidiary of Defendant-Appellee RBS Group. Defendant-Appellee RBS Securities Inc. (f/k/a Greenwich Capital Markets, Inc.) is a wholly owned indirect subsidiary of Defendant-Appellee RBS Group. SOCIÉTÉ GÉNÉRALE Defendant-Appellee Société Générale has no parent company, and no publicly-held corporation holds 10% or more of its stock. THE NORINCHUKIN BANK Defendant-Appellee The Norinchukin Bank has no parent corporation, and no publicly held company owns 10% or more of The Norinchukin Bank's stock. PORTIGON AG Defendant-Appellee Portigon AG (f/k/a WestLB AG) has no parent corporation, and no publicly held company owns 10% or more of Portigon AG's stock. vi Case 17-1569, Document 424, 02/12/2018, 2234077, Page13 of 102 UBS AG Defendant-Appellee UBS AG is wholly owned by UBS Group AG, a publicly traded corporation. No publicly held corporation holds 10% or more of UBS Group AG's stock. WESTDEUTSCHE IMMOBILIENBANK AG Defendant-Appellee Westdeutsche ImmobilienBank AG ("WestImmo") is a wholly owned subsidiary of GEV, GmbH, a limited liability corporation organized under the laws of Germany. WestImmo is an indirect subsidiary of Aareal Bank AG, a publicly held corporation organized under the laws of Germany and listed on the Frankfurt Stock Exchange. WestImmo's direct parent GEV, GmbH is a wholly owned subsidiary of Aareal Bank AG. No publicly held company owns 10% or more of Aareal Bank AG's stock. vii Case 17-1569, Document 424, 02/12/2018, 2234077, Page14 of 102 TABLE OF CONTENTS Page CORPORATE DISCLOSURE STATEMENT ................................ .......................................................... ..........................i TABLE OF AUTHORITIES ................................ ................................................................ ................................ ..................................................... ..................... x INTRODUCTION ................................................................ ................................................................ ................................................................ ................................ ..................................... 1 STATEMENT OF THE CASE ................................ ................................................................ ................................ .................................................. .................. 3 A. Legal Background ................................ ................................................................ ................................ ........................................... ........... 3 B. Factual Background ................................ ................................................................ ................................ ........................................ ........ 5 C. Procedural Background ................................ ................................................................ ................................ ................................... 7 D. The Decision on Appeal ................................ ................................................................ ................................ 12 SUMMARY UMMARY OF THE ARGUMENT ................................ ................................................................ ................................ ...................................... ...... 17 STANDARD OF REVIEW ................................................................ ................................................................ ..................................................... ..................... 21 ARGUMENT ................................................................ ................................................................ ................................................................ ................................ ........................................... ........... 22 I. THE DISTRICT COURT CORRECTLY FOUND THAT PLAINTIFFS FAILED TO SHOW ANY SUIT SUIT-RELATED RELATED CONTACTS WITH THE UNITED STATES ................................ ......................................... ......... 22 A. The Due Process Clause Limits The Scope Of Conduct Relevant Relevant To Specific Jurisdiction ................................ ................................................. ................. 23 B. Plaintiffs Failed To Plausibly Allege Any Suit Suit-Related Related Conduct In The United States ................................ ....................................................... ....................... 29 1. Only those acts necessary to a reputation reputation-based based conspiracy could qualify as suit suit-related related conduct ................. 30 2. Plaintiffs have not plausibly alleged that ddefendants efendants conspired to profit from LIBOR LIBOR-based based transactions ........... 36 3. Plaintiffs' late-breaking late breaking filings failed to establish any U.S.-based U.S. based participation in the LIBOR LIBOR-settingsetting process................................ ................................................................ ................................ .................................................. .................. 42 viii Case 17-1569, Document 424, 02/12/2018, 2234077, Page15 of 102 TABLE OF CONTENTS— CONTENTS—Continued Continued Page C. Plaintiffs Failed To Plausibly Allege That Defendants "Expressly Aimed" Any Suit-Related Suit Related Conduct At The United States ................................ ................................................................ ................................ ................................................. ................. 46 II. THE DISTRICT COURT PROPERLY REJECTED PLAINTIFFS' THEORIES OF VICARIOUS PERSONAL JURISDICTION ................................................................ ................................................................ ...................................................... ...................... 53 A. Plaintiffs' Theory Of Conspiracy Jurisdiction Is Fundamentally Fundamentally Inconsistent With Due Process ............................ 53 1. Plaintiffs tiffs fail to allege the requisite direction, control, and supervision this Court's precedents require ................................ ................................................................ ................................ .................................................. .................. 54 2. Plaintiffs have not alleged "overt acts acts"" in the forum .......... 58 B. Plaintiffs Have Failed To Plausibly Allege A Basis To Impute The Forum Contacts Of Defe Defendants' ndants' Subsidiaries ........... 58 III. PLAINTIFFS' REMAINING ARGUMENTS ARE FORFEITED AND WRONG ................................................................ ................................................................ ........................................................ ........................ 62 A. The Decision Below Does Not Implicate The Constitutionality Of The Clayton Act's Nationwi Nationwide de Service-Of- Service -Process Process Provision ................................ ....................................................... ....................... 62 B. Plaintiffs' Novel General-Personal General Personal-Jurisdiction isdiction Argument Cannot Be Reconciled With Daimler Daimler's 's Reasoning ...................... 63 IV. DEFENDANTS HAVE NOT FORFEITED, MUCH LESS WAIVED, THEIR PERSONAL-JURISDICTION PERSONAL JURISDICTION DEFENSES ............ 68 CONCLUSION ................................................................ ................................................................ ................................................................ ................................ ........................................ ........ 74 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE ix Case 17-1569, Document 424, 02/12/2018, 2234077, Page16 of 102 TABLE OF AUTHORITIES Page(s) CASES: 7 W. 57th St. Realty Co. v. Citigroup, Inc., No. 13-cv-981-PGG, 2015 WL 1514539 (S.D.N.Y. Mar. 31, 2015) ................. 47 Amidax Trading Grp. v. S.W.I.F.T. SCRL, 671 F.3d 140 (2d Cir. 2011) .........................................................................42, 44 Anderson Grp., LLC v. City of Saratoga Springs, 805 F.3d 34 (2d Cir. 2015) ................................................................................. 35 Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102 (1987) ............................................................................................ 25 Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 305 F.3d 120 (2d Cir. 2002) ............................................................................... 28 Bankers Life & Casualty Co. v. Holland, 346 U.S. 379 (1953) ............................................................................................ 57 Bertha Building Corp. v. Nat'l Theatres Corp., 248 F.2d 833 (2d Cir. 1957) ............................................................................... 56 BNSF Ry. Co. v. Tyrrell, 137 S. Ct. 1549 (2017) ........................................................................................ 62 Boyce v. Cycle Spectrum, Inc., 148 F. Supp. 3d 256 (E.D.N.Y. 2015) ................................................................ 62 Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017) .................................................................................passim Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985) .....................................................................................passim Calder v. Jones, 465 U.S. 783 (1984) ......................................................................................34, 47 Chevron Corp. v. Naranjo, 667 F.3d 232 (2d Cir. 2012) ............................................................................... 70 x Case 17-1569, Document 424, 02/12/2018, 2234077, Page17 of 102 TABLE OF AUTHORITIES—Continued Page(s) Chew v. Dietrich, 143 F.3d 24 (2d Cir. 1998) ................................................................................. 29 Chloé v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158 (2d Cir. 2010) ............................................................................... 28 Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752 (1984) ......................................................................................60, 61 Cordes & Co. Fin. Servs., Inc. v. A.G. Edwards & Sons, Inc., 502 F.3d 91 (2d Cir. 2007) ................................................................................. 31 Corporación Mexicana de Mantenimiento Integral, S. de R.L. de C.V. v. Pemex-Exploración y Producción, 832 F.3d 92 (2d Cir. 2016) ............................................................................... 68 Daimler AG v. Bauman, 134 S. Ct. 746 (2014) ...................................................................................passim Daniel v. Am. Bd. of Emergency Med., 428 F.3d 408 (2d Cir. 2005) ............................................................................... 63 Dorchester Fin. Sec., Inc. v. Banco BRJ, S.A., 722 F.3d 81 (2d Cir. 2013) ................................................................................. 40 Doscher v. Sea Port Grp. Sec., LLC, 832 F.3d 372 (2d Cir. 2016) ............................................................................... 28 Ehrenfeld v. Mahfouz, 489 F.3d 542 (2d Cir. 2007) ............................................................................... 34 EMI Christian Music Grp., Inc. v. MP3tunes, LLC, 844 F.3d 79 (2d Cir. 2016) ...........................................................................27, 28 Freeman v. Complex Computing Co., 119 F.3d 1044 (2d Cir. 1997) ............................................................................. 59 Frisbie v. Collins, 342 U.S. 519 (1952) ............................................................................................ 58 xi Case 17-1569, Document 424, 02/12/2018, 2234077, Page18 of 102 TABLE OF AUTHORITIES—Continued Page(s) FrontPoint Asian Event Driven Fund, L.P. v. Citibank, N.A., No. 16-cv-5263-AKH, 2017 WL 3600425 (S.D.N.Y. Aug. 18, 2017).................................................. 47 Gelboim v. Bank of Am. Corp., 135 S. Ct. 897 (2015) ............................................................................................ 8 Gelboim v. Bank of Am. Corp., 823 F.3d 759 (2d Cir. 2016) ........................................................................passim Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011) ..........................................................................20, 23, 26, 59 Grunewald v. United States, 353 U.S. 391 (1957) ......................................................................................14, 15 Gucci Am., Inc. v. Weixing Li, 768 F.3d 122 (2d Cir. 2014) ........................................................................passim H. L. Moore Drug Exch., Inc. v. Smith, Kline & French Labs., 384 F.2d 97 (2d Cir. 1967) ................................................................................. 57 Hamilton v. Atlas Turner, Inc., 197 F.3d 58 (2d Cir. 1999) .....................................................................22, 68, 72 In re Aluminum Warehousing Antitrust Litig., 90 F. Supp. 3d 219 (S.D.N.Y. 2015) .................................................................. 60 In re Bulk (Extruded) Graphite Prods. Antitrust Litig., No. 02-6030-WHW, 2007 WL 2212713 (D.N.J. July 30, 2007) ....................... 51 In re Capacitors Antitrust Litig., No. 14-cv-03264-JD, 2015 WL 3638551 (N.D. Cal. June 11, 2015) ................ 51 In re Fasteners Antitrust Litig., No. 08-md-1912, 2011 WL 3563989 (E.D. Pa. Aug. 12, 2011) ........................ 51 In re Foreign Exch. Benchmark Rates Antitrust Litig., No. 13-cv-7789-LGS, 2016 WL 1268267 (S.D.N.Y. Mar. 31, 2016) ............................................52, 60 xii Case 17-1569, Document 424, 02/12/2018, 2234077, Page19 of 102 TABLE OF AUTHORITIES—Continued Page(s) In re LIBOR–Based Fin. Instruments Antitrust Litig., 935 F. Supp. 2d 666 (S.D.N.Y. 2013) .........................................................passim In re LIBOR-Based Fin. Instruments Antitrust Litig., No. 11-MDL-2262-NRB, 2015 WL 6243526 (S.D.N.Y. Oct. 20, 2015) ..................................................... 9 In re LIBOR-Based Fin. Instruments Antitrust Litig., Nos. 13-3565(L) & 13-3636(Con.), 2013 WL 9557843 (2d Cir. Oct. 30, 2013) ........................................................ 8 In re Magnetic Audiotape Antitrust Litig., 334 F.3d 204 (2d Cir. 2003) ...................................................................50, 51, 67 In re N. Sea Brent Crude Oil Futures Litig., No. 13-md-02475 (ALC), 2017 WL 2535731 (S.D.N.Y. June 8, 2017) ..............................................51, 57 In re Nortel Networks Corp. Sec. Litig., 539 F.3d 129 (2d Cir. 2008) ............................................................................... 64 In re Platinum & Palladium Antitrust Litig., No. 1:14-cv-9391-GHW, 2017 WL 1169626 (S.D.N.Y. Mar. 28, 2017) .................................................. 47 In re Terrorist Attacks on Sept. 11, 2001, 714 F.3d 659 (2d Cir. 2013) .........................................................................21, 43 In re TFT-LCD (Flat Panel) Antitrust Litig., Nos. M-07-1827-SI & C-11-0829-SI, 2011 WL 5444261 (N.D. Cal. Nov. 9, 2011) ................................................... 51 In re Vitamin C Antitrust Litig., Nos. 06-md-1738-BMC-JO & 05-cv-453-BMC-JO, 2012 WL 12355046 (E.D.N.Y. Aug. 8, 2012) ................................................. 51 In re Vitamins Antitrust Litig., 270 F. Supp. 2d 15 (D.D.C. 2003) ...................................................................... 51 xiii Case 17-1569, Document 424, 02/12/2018, 2234077, Page20 of 102 TABLE OF AUTHORITIES—Continued Page(s) Int'l Shoe Co. v. Washington, 326 U.S. 310 (1945) .............................................................................................. 4 IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049 (2d Cir. 1993) ................................................................................. 66 J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873 (2011) ............................................................................................ 25 Katel Ltd. Liab. Co. v. AT&T Corp., 607 F.3d 60 (2d Cir. 2010) ................................................................................. 62 Keeton v. Hustler Magazine, Inc., 465 U.S. 770 (1984) ......................................................................................59, 62 Laydon v. Bank of Tokyo-Mitsubishi UFJ, Ltd., No. 12-cv-3419-GBD, 2017 WL 1113080 (S.D.N.Y. Mar. 10, 2017) ............................................46, 47 Laydon v. Mizuho Bank, Ltd., No. 12-cv-3419-GBD, 2015 WL 1515358 (S.D.N.Y. Mar. 31, 2015) ............................................47, 60 Leasco Data Processing Equip. Corp. v. Maxwell, 468 F.2d 1326 (2d Cir. 1972) ......................................................................passim Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 732 F.3d 161 (2d Cir. 2013) ...................................................................34, 54, 62 Mariash v. Morrill, 496 F.2d 1138 (2d Cir. 1974) .......................................................................66, 67 McGee v. Int'l Life Ins. Co., 355 U.S. 220 (1957) ............................................................................................ 26 Rush v. Savchuk, 444 U.S. 320 (1980) ........................................................................................4, 26 Scandinavian Satellite Sys., AS v. Prime TV Ltd., 291 F.3d 839 (D.C. Cir. 2002) ............................................................................ 60 xiv Case 17-1569, Document 424, 02/12/2018, 2234077, Page21 of 102 TABLE OF AUTHORITIES—Continued Page(s) SEC v. Johnson, 650 F.3d 710 (D.C. Cir. 2011) ............................................................................ 57 Singleton v. Wulff, 428 U.S. 106 (1976) ............................................................................................ 73 Société Générale v. Fed. Ins. Co., 856 F.2d 461 (2d Cir. 1988) ............................................................................... 56 Sonterra Capital Master Fund Ltd. v. Credit Suisse Group AG, No. 1:15-cv-00871-SHS, 2017 WL 4250480 (S.D.N.Y. Sept. 25, 2017) ...........................................47, 52 SPV OSUS Ltd v. UBS AG, No. 16-2173 (2d Cir. Feb. 9, 2018) ..............................................................29, 46 Sullivan v. Barclays PLC, No. 13-cv-2811-PKC, 2017 WL 685570 (S.D.N.Y. Feb. 21, 2017) .................................................... 47 Sunward Elecs., Inc. v. McDonald, 362 F.3d 17 (2d Cir. 2004) .......................................................................4, 26, 66 Tex. Trading & Milling Corp. v. Fed. Republic of Nigeria, 647 F.2d 300 (2d Cir. 1981 ................................................................................. 67 United States v. Ben Zvi, 242 F.3d 89 (2d Cir. 2001) ................................................................................. 37 United States v. Bestfoods, 524 U.S. 51 (1998) .............................................................................................. 58 United States v. Socony-Vacuum Oil Co., 310 U.S. 150 (1940) .....................................................................................passim Van Riper v. United States, 13 F.2d 961 (2d Cir. 1926) ................................................................................. 58 Walden v. Fiore, 134 S. Ct. 1115 (2014) .................................................................................passim xv Case 17-1569, Document 424, 02/12/2018, 2234077, Page22 of 102 TABLE OF AUTHORITIES—Continued Page(s) Waldman v. Palestine Liberation Org., 835 F.3d 317 (2d Cir. 2016) ........................................................................passim Whitfield v. United States, 543 U.S. 209 (2005) ............................................................................................ 31 World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980) ......................................................................................24, 25 STATUTES: Antiterrorism Act, 18 U.S.C. § 2331 et seq....................................................................................... 30 18 U.S.C. § 2331(a)(1) ........................................................................................ 31 18 U.S.C. § 2333(a) ............................................................................................ 31 Clayton Act, 15 U.S.C. § 22 ...............................................................................................62, 66 N.Y. C.P.L.R. § 302(a)(1) ........................................................................................ 34 OTHER AUTHORITY: IB Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law ¶ 271c3 (4th ed. 2013) ................................................................. 63 xvi Case 17-1569, Document 424, 02/12/2018, 2234077, Page23 of 102 IN THE United States Court of Appeals for the Second Circuit ___________________ No. 17-1569(L) 17-1915(CON), 17-1989(CON), 17-2056(CON), 17-2343(CON), 17-2347(CON), 17-2351(CON), 17-2352(CON), 17-2360(CON), 17-2376(CON), 17-2381(CON), 17-2383(CON), 17-2413(CON) ___________________ IN RE LIBOR-BASED FINANCIAL INSTRUMENTS ANTITRUST LITIGATION ____________________ Appeal from the United States District Court for the Southern District of New York ____________________ BRIEF FOR DEFENDANTS-APPELLEES REGARDING PERSONAL JURISDICTION ____________________ INTRODUCTION This appeal asks whether a court may exercise personal jurisdiction over nonresident defendants in suits challenging conduct that took place entirely overseas. If the answer was debatable when plaintiffs filed suit years ago, it is not anymore. In a series of pathmarking decisions starting in 2014, the Supreme Court sharply curtailed the exercise of "all-purpose," general jurisdiction and clarified the strict limits on case-linked, specific jurisdiction. Together, those decisions—and decisions of this Court applying them—plainly limit a court's specific jurisdiction over a nonresident defendant to those claims for which the defendant became liable 1 Case 17-1569, Document 424, 02/12/2018, 2234077, Page24 of 102 through its conduct in, or expressly aimed at, the forum. That rule disposes of the claims on appeal. Plaintiffs alleged that defendants conspired in London to persistently suppress a benchmark rate based upon their estimated costs of borrowing money in the London inter-bank market. Even if that were true, which defendants deny, plaintiffs failed to plausibly allege either that defendants took any actions necessary to effect that scheme in the United States or that they expressly aimed such actions at this country. Plaintiffs pointed to certain defendants' U.S. sales of financial instruments tied to the benchmark, but they could not articulate a plausible link between those sales and their claims of benchmark suppression. And plaintiffs' alternative contention, that jurisdiction attaches because defendants agreed to engage in such sales in order to "profit" by borrowing more cheaply as a result of the supposedly suppressed benchmark, foundered on plaintiffs' inability to plausibly allege—despite obtaining substantial discovery and reviewing detailed settlements between government authorities and several defendants—that each defendant was a net borrower in a position to profit from a suppressed benchmark. The District Court's rejection of plaintiffs' expansive theory of personal jurisdiction was entirely consistent with this Court's mandate and longstanding precedent. 2 Case 17-1569, Document 424, 02/12/2018, 2234077, Page25 of 102 Even Even if plaintiffs had plausibly alleged that some defendants or their non non- party subsidiaries engaged in some suit-related suit related conduct within or expressly aimed at the United States, which h they did not, plaintiffs' theories of vicarious personal jurisdiction cannot be squared with elementary notions of due process. That is presumably why they devote two sections of their brief to alternative arguments they never developed below. below And it also explains why plaintiffs press the meritless contention that some defendants waived their jurisdictional defenses by continuing to defend merits judgments they obtained before those defenses became available. available. Settled due-process due process principles compelled th thee District Court's carefully reasoned ruling. This Court should affirm. STATEMENT OF THE CASE A. Legal Background Before a court may exercise personal jurisdiction over a defendant, a plaintiff must show that three requirements have been met. First, "s "service ervice of process upon the defendant must have been procedurally proper." Waldman v. Palestine Liberation Org., Org., 835 F.3d 317, 327 (2d Cir. 2016) ((internal internal quotation marks omitted). Second, "there must be a statutory basis for personal jurisdiction that renders enders such service of process effective." Id. (internal internal quotation marks omitted). And third, "the exercise of personal jurisdiction must comport with constitutional due process principles." Id. (internal internal quotation marks omitted). 3 Case 17-1569, Document 424, 02/12/2018, 2234077, Page26 of 102 Each requirement must be met as to each defendant and each claim. See Rush v. Savchuk, 444 U.S. 320, 332 (1980); Sunward Elecs., Inc. v. McDonald, 362 F.3d 17, 24 (2d Cir. 2004). The Due Process Clause demands a showing that each defendant established "certain minimum contacts with [the forum] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice." Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (internal quotation marks omitted). Courts have "recognized two types of personal jurisdiction: general (sometimes called all-purpose) jurisdiction and specific (sometimes called case-linked) jurisdiction." Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773, 1779- 80 (2017) (internal quotation marks omitted); see Waldman, 835 F.3d at 331 (explaining that general and specific jurisdiction are different means of establishing minimum contacts). A court with general jurisdiction over a defendant "may hear any claim against that defendant, even if all the incidents underlying the claim occurred in a different State." Bristol-Myers Squibb, 137 S. Ct. at 1780. Because of that broad sweep, however, " 'only a limited set of affiliations with a forum will render a defendant amenable to' general jurisdiction" there. Id. (quoting Daimler AG v. Bauman, 134 S. Ct. 746, 760 (2014)). "Specific jurisdiction is very different. In order for [a] court to exercise specific jurisdiction, the suit must arise out of or 4 Case 17-1569, Document 424, 02/12/2018, 2234077, Page27 of 102 relate to the defendant's contacts with the forum forum." Id. (internal quotation marks and brackets omitted). Specific personal jurisdiction jurisdiction rests on "the relationship among the defendant, the forum, and the litigation." Walden v. Fiore Fiore,, 134 S. S. C Ct. t. 1115, 1121 (2014) (quoting Keeton v. Hustler Magazine, Inc., Inc., 465 U.S. 770, 775 (1984)). That "relationship must arise out of contacts that the defendant himself creates with the forum State." Id. at 1122 (internal quotation marks omitted). Those hose contacts must be directed at "the forum State itself," rather than the "persons who reside there." Id. And they must constitute "the "the very controversy that establishes jurisdiction." Bristol--Myers Myers Squibb, Squibb, 137 S. Ct. S. Ct. at 1780 (internal quotation mark markss omitted) omitted). Absent the required relationship, "specific jurisdiction is lacking regardless of the extent of a defendant's unconnected activities in the State." Id. at 1781. B. Factual Background This appeal involves several actions brought in state and fede federal ral courts around the country, which were consolidated for pretrial proceedings in a multi multi- district litigation in the Southern District of New York. These actions allege that certain banks colluded to persistently suppress a reference rate known as the 5 Case 17-1569, Document 424, 02/12/2018, 2234077, Page28 of 102 London Interbank Offered Rate (LIBOR) for U.S. Dollars. 1 At the time this collusion is alleged to have occurred, U.S.-Dollar LIBOR was set daily in London, based on a trimmed average of sixteen individual banks' estimates of the respective rates at which they believed they could borrow U.S. Dollars in the London inter-bank market under certain hypothetical conditions. Gelboim v. Bank of Am. Corp. ("Gelboim II"), 823 F.3d 759, 765-66 (2d Cir. 2016). Each bank determined and made its submissions to Thomson Reuters during all or part of the relevant period (August 2007 to May 2010) as a member of the U.S.-Dollar LIBOR panel assembled for that purpose by the British Bankers' Association. Appellants comprise four distinct groups of plaintiffs in the MDL. The over-the-counter plaintiffs are a putative class of alleged purchasers of "interest rate swaps directly from at least one Defendant in which the rate of return was tied to LIBOR." In re LIBOR-Based Fin. Instruments Antitrust Litig. ("LIBOR I"), 935 F. Supp. 2d 666, 681 (S.D.N.Y. 2013). The bondholder plaintiffs are a putative class of alleged holders of U.S.-Dollar denominated debt securities that paid interest expressly linked to LIBOR and were not purchased from or "issued by any Defendant as obligor." A501. The exchange-based plaintiffs are a putative class of traders in LIBOR-based Eurodollar futures contracts on the Chicago Mercantile 1 LIBORs for other currencies were calculated separately using submissions made by different panels comprising different sets of banks. This brief refers to U.S.-Dollar LIBOR as "LIBOR" for the sake of simplicity only. 6 Case 17-1569, Document 424, 02/12/2018, 2234077, Page29 of 102 Exchange. Exchange See LIBOR I, I, 935 F. Supp. 2d at 682 682-83. 83. Finally, certain entities related to the Charles Schwab Corporation Corporation and other individual plaintiffs (the non non- class plaintiffs) plaintiffs) raise claims that are "substantially similar" to those of the over over- the-counter counter and bondholder plaintiffs. Gelboim II II,, 823 F.3d at 767-668. Plaintiffs allege that the LIBOR panel banks "engaged iinn a hor horizontal izontal price price- fixing conspiracy" conspiracy" in violation of federal and state antitrust laws, "with each [bank's LIBOR] submission reporting an artificially low cost of borrowing in order to drive LIBOR down." Id. at 766, 768. Plaintiffs allege that this sup suppression pression caused them to receive lower returns on their investments than they would have otherwise. See id. at 767-68. 68. C. Procedural Background This appeal arises from the District Court's December 20, 2016 order dismissing certain plaintiffs' antitrust claims claims for lack of personal jurisdiction and antitrust standing. That ruling, known as LIBOR VI VI,, is the most recent in a series of comprehensive decisions the District Court has rendered in this long long-running running MDL. Also relevant is the District Court's March 20 2013 13 decision, LIBOR II,, which first dismissed plaintiffs' antitrust claims, and the appeals from that dismissal, which culminated in this Court's decision in Gelboim II II.. Those decisions are discussed here briefly for context. 7 Case 17-1569, Document 424, 02/12/2018, 2234077, Page30 of 102 LIBOR I. In March 2013, the District Court dismissed plaintiffs' federal and state antitrust claims with prejudice for lack of antitrust standing. 935 F. Supp. 2d at 677. Because the court concluded that plaintiffs had not plausibly alleged antitrust injury, it declined to address whether they were efficient enforcers of the antitrust laws. See id. at 686. Several plaintiffs appealed. In October 2013, this Court dismissed the appeals from LIBOR I sua sponte for lack of appellate jurisdiction. See In re LIBOR-Based Fin. Instruments Antitrust Litig. ("Gelboim I"), Nos. 13-3565(L) & 13-3636(Con.), 2013 WL 9557843 (2d Cir. Oct. 30, 2013). In March 2014, the bondholder plaintiffs sought Supreme Court review of that decision, and the Court granted certiorari in June of that year. The bondholders' petition presented the narrow question whether the dismissal of the only claim asserted by a plaintiff in an action consolidated for pretrial proceedings in an MDL is a final decision that could be immediately appealed, even if live claims remained in other actions in the MDL. In January 2015, the Supreme Court reversed and directed this Court to hear the bondholders' appeal on the merits. See Gelboim v. Bank of Am. Corp., 135 S. Ct. 897 (2015). The appeal returned to this Court, where it was consolidated with others for review. Gelboim II. In a "decision. . . of narrow scope," a panel of this Court vacated LIBOR I and remanded the case to the District Court. 823 F.3d at 782-83. This Court began by holding that plaintiffs had plausibly alleged an antitrust 8 Case 17-1569, Document 424, 02/12/2018, 2234077, Page31 of 102 violation. Because plaintiffs alleged that "LIBOR forms a component of the return from various LIBOR-denominated financial instruments," this Court found that their antitrust claim was "one of price-fixing," which is "unlawful per se." Id. at 771. Turning to antitrust standing, this Court concluded that plaintiffs had pleaded an antitrust injury by alleging "the warping of market factors affecting the prices for LIBOR-based instruments" and by further "alleging that they paid artificially fixed higher prices." Id. at 776-77. Two members of the panel, id. at 777 n.17, also offered guidance regarding the so-called efficient-enforcer factors courts must consider when determining whether a particular victim of antitrust injury is a proper party to pursue a private claim for damages, warning that "[t]hese factors require close attention here given that there are features of this case that make it like no other" and bear "upon the need for appellants as instruments for vindicating the Sherman Act." Id. at 778. This Court went on to conclude that plaintiffs had also plausibly alleged an inter-bank antitrust conspiracy to persistently suppress LIBOR.2 Id. at 781-82. It 2 The District Court did address this question in LIBOR I in light of its antitrust injury holding. This Court reached the issue because the District Court found in a subsequent decision that a separate set of complaints asserting claims similar to those in LIBOR I did not adequately allege an interbank conspiracy to suppress LIBOR. See In re LIBOR-Based Fin. Instruments Antitrust Litig. ("LIBOR IV"), No. 11-MDL-2262-NRB, 2015 WL 6243526, at *41-44 (S.D.N.Y. 9 Case 17-1569, Document 424, 02/12/2018, 2234077, Page32 of 102 observed that plaintiffs' allegations could be "equally consistent with parallelism." Id. at 782. But it found that plaintiffs had alleged sufficient "plus factors" to "clear the bar of plausibility," including "a common motive to conspire—increased profits and the projection of financial soundness—as well as a high number of interfirm communications." Id. at 781-82. The Court did not explain how it thought the banks sought to obtain increased profits—whether directly through LIBOR-linked transactions or by projecting a false appearance of financial soundness. It observed, however, that "common sense dictates that the Banks operated not just as borrowers but also as lenders in transactions that referenced LIBOR." Id. at 783. And it commented that "[i]t seems strange that this or that bank (or any bank) would conspire to gain, as a borrower, profits that would be offset by a parity of losses it would suffer as a lender." Id. Finding that the record on appeal was "undeveloped," this Court left it to the District Court to consider the matter further on remand. Id. Intervening Legal Developments. While Gelboim was making its three- year journey to the Supreme Court and back, the law of personal jurisdiction evolved significantly on two fronts. First, in Daimler, the Supreme Court narrowed the scope of general personal jurisdiction. It held that a corporation may Oct. 20, 2015). An appeal from the personal jurisdiction and certain other portions of LIBOR IV is pending before this Court. See In re LIBOR-Based Fin. Instruments Antitrust Litig., No. 16-1189 (2d Cir. argued Sept. 25, 2017). 10 Case 17-1569, Document 424, 02/12/2018, 2234077, Page33 of 102 be subject to general jurisdiction only where it is "at home"—generally, the States where it is incorporated or maintains its principal place of business. 134 S. Ct. at 761-62. That holding opened up jurisdictional defenses that had previously been foreclosed by decades of precedent, a change so significant that this Court held a defendant did not waive them by not raising them while they remained "directly contrary to controlling precedent in this Circuit." Gucci Am., Inc. v. Weixing Li, 768 F.3d 122, 135-36 (2d Cir. 2014) (internal quotation marks omitted) (holding that Daimler invalidated New York's long-standing exercise of general jurisdiction based on a "continuous and systematic course of doing business" there). Second, in Walden, the Supreme Court clarified that the "minimum contacts" inquiry for specific personal jurisdiction "focuses on the relationship among the defendant, the forum, and the litigation." 134 S. Ct. at 1121 (internal quotation marks omitted). It applied that principle to the so-called "effects" test of specific personal jurisdiction, explaining that, despite that name, due process requires that a court look not to "where the plaintiff experienced a particular injury or effect but [to] whether the defendant's conduct connects him to the forum in a meaningful way." Id. at 1125. After Daimler and this Court's decision in Gucci, defendants took steps to preserve and raise their newly available personal-jurisdiction defenses. Where those claims were before the District Court, defendants moved promptly to dismiss 11 Case 17-1569, Document 424, 02/12/2018, 2234077, Page34 of 102 for lack of personal jurisdiction. See ECF No. 743. Where plaintiffs' claims were on appeal, appeal, defendants advised plaintiffs and this Court of their intention to pursue personal-jurisdiction personal diction defenses at the first opportunity if plaintiffs' claims returned to the District Court. See Joint Br. for Defs.-Appellees Defs. Appellees at 38 n.23, Gelboim II II,, 823 F.3d 759 (No. 13--3565), 3565), ECF No. 464; ECF No. 1500 1500-2. In early 2016, the District Court ordered extensive discovery relating to plaintiffs' anticipated motions for class certification. ECF No. 1327. It directed defendants in the putative class actions to produce documents "previously produced to regulators or governmental entities in connection wit withh alleged U.S. Dollar LIBOR suppression or manipulation." Id. at 3.. Defendants produced millions of pages of emails, tens of thousands of audio files, and extensive transaction data. Deutsche Bank alone "produced for the OTC putative class period 166,960 0 documents and 1,148 audio files totaling 1,362,024 images, as well as 1,378 pages of translations and transcripts of aud audio io files." ECF No. 1802 at 22. When plaintiffs' antitrust claims returned after Gelboim II II,, the District Court ordered the reinstated defendants to comply with its production order as well. ECF No. 1441 at 2-3. 2 D. The Decision on Appeal Back before the District Court, defendants promptly moved to dismiss plaintiffs' remanded antitrust claims. All defendants moved to dismiss on 12 Case 17-1569, Document 424, 02/12/2018, 2234077, Page35 of 102 efficient-enforcer grounds. See ECF No. 1481 at 1 n.1 (identifying moving defendants). The portion of the District Court's decision addressing antitrust standing is described in defendants' brief on that issue. Most defendants also moved to dismiss for lack of personal jurisdiction. See ECF No. 1483 at 1 n.1 (identifying moving defendants). 3 Defendants expressly reserved their rights to move to dismiss any surviving claims on additional grounds at a later date. See ECF No. 1481 at 1 n.3. Because plaintiffs' oppositions to defendants' motion to dismiss relied on the doctrine of specific personal jurisdiction, the District Court had to determine which forum contacts were relevant to plaintiffs' claims. The court held that acts taken in furtherance of a conspiracy—those acts "necessary to keep the conspiracy alive"—constitute relevant forum contacts for purposes of specific personal jurisdiction. SPA9 (quoting United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 253 (1940)). To identify those acts, the District Court naturally began by determining "the scope of the conspiratorial agreement." SPA8 (quoting Grunewald v. United States, 353 U.S. 391, 414 (1957)). The District Court held that "project[ing] . . . financial soundness" was "the only sufficiently pled goal" of the alleged conspiracy. SPA17. Thus, the only 3 The domestic defendants challenged personal jurisdiction only in certain actions filed outside New York. 13 Case 17-1569, Document 424, 02/12/2018, 2234077, Page36 of 102 relevant jurisdictional contacts were those involving the determination, setting, or transmission of "a false LIBOR submission." Id. (internal quotation marks omitted). By contrast, the court rejected plaintiffs' arguments that sales in the United States of LIBOR-based instruments could support jurisdiction. It found that "the goal of the conspiracy would have succeeded regardless of whether any defendants based their products on LIBOR and regardless of whether any defendant bank increased or decreased the margin on their LIBOR-based products." SPA18. At most, the court concluded, defendants' sales were "steps [taken] after the conspiracy," from which defendants may (or may not) have benefitted due to persistently suppressed LIBOR; they were not a basis for broadening the conspiracy's scope "retroactively." Id. (quoting Grunewald, 353 U.S. at 414). Plaintiffs contended that the bank defendants had also conspired to "profit" from LIBOR suppression by transacting in LIBOR-based instruments in the United States. But the District Court found that plaintiffs' premise was "not plausible." SPA5. Picking up on this Court's observation that it would be "strange" for a bank to "conspire to gain, as a borrower, profits that would be offset by a parity of losses it would suffer as a lender," the District Court noted that the record had substantially developed since LIBOR I. SPA5 (internal quotation marks omitted). Yet "[a]fter five years of voluminous discovery in both civil litigation and government investigations" and a post-argument opportunity to supplement the 14 Case 17-1569, Document 424, 02/12/2018, 2234077, Page37 of 102 record, plaintiffs could not meet their burden to plausibly allege that all defendants were net borrowers in LIBOR-based obligations, let alone that they agreed to suppress LIBOR with the parallel intent to remain net borrowers throughout the relevant period so as to profit from sales of LIBOR-based financial instruments. SPA6, 10-12. Nor had any of the government investigations uncovered an agreement to profit from LIBOR-based transactions by persistently suppressing LIBOR. The District Court also rejected plaintiffs' argument that Gelboim II endorsed their allegations of an additional conspiracy to profit from transactions in LIBOR-based instruments. The court explained that Gelboim II's lone reference to "a common motive to conspire—increased profits and the projection of financial soundness," 823 F.3d at 781-82—did not decide the question. SPA10-16. For one thing, the allegations the opinion cited "pertained only to the banks' reputational concerns." SPA10. For another, this Court itself "observe[d] that a profit motive in the persistent suppression conspiracy is logically unsound." SPA10-11. Accordingly, the District Court concluded that this Court's reference to "increased profits and the projection of financial soundness" was intended "to describe collectively a single, reputation-based motive to conspire, where increased profits followed from a positive reputation." SPA11. 15 Case 17-1569, Document 424, 02/12/2018, 2234077, Page38 of 102 Having determined the scope of the conspiracy, the District Court carefully examined plaintiffs' allegations to determine whether plaintiffs had met their burden to make out the prima facie showing necessary to establish personal jurisdiction over each defendant. SPA18-30. It held that plaintiffs had not plausibly alleged that any defendant "determined, or transmitted, a false LIBOR submission from the United States." SPA17, 21-22. Nor did plaintiffs' submissions make plausible their claim that defendants had "aimed" their benchmark-setting conduct "at the United States or any particular forum state." SPA22-23 (internal quotation marks omitted). The District Court likewise found plaintiffs' allegations insufficient to impute to defendants any U.S. contacts of their subsidiaries. SPA24-25. For these reasons, the District Court concluded that plaintiffs had not shown that defendants had the necessary suit-related contacts with the United States that due process requires to support the exercise of specific personal jurisdiction. Because that conclusion disposed of plaintiffs' claims, the court did not address the viability of plaintiffs' theory of conspiracy jurisdiction. SPA30. Nor did it pass upon defendants' alternative arguments that they were not properly served or that plaintiffs had failed to establish proper venue. See id.; ECF No. 1483 at 23-29. This appeal followed. 16 Case 17-1569, Document 424, 02/12/2018, 2234077, Page39 of 102 SUMMARY OF THE ARGUMENT I. The District Court correctly concluded that plaintiffs failed to meet their burden to establish specific personal jurisdiction over each defendant by plausibly alleging that each either carried out some act essential to the alleged conspiracy in, or expressly aimed that conduct at, the United States. Whether a district court can exercise specific jurisdiction over a defendant to hear a plaintiff's claim turns, always, on "whether the defendant's actions connect him to the forum." Walden, 134 S. Ct. at 1124. This Court held in Waldman that the relevant connection requires conduct in, or expressly aimed at, the forum that "could have subjected [the defendant] to liability." 835 F.3d at 335. Plaintiffs strive to avoid that standard by invoking cases that discuss the distinct requirement that a defendant "purposefully avail" itself of the forum. But purposeful availment tests whether a defendant has made a connection to the forum; it does not speak to whether the defendant has made a relevant, suit-related connection to the forum. See Bristol-Myers Squibb, 137 S. Ct. at 1781. The District Court appreciated that distinction. Following established precedent, the District Court carefully considered the conduct that allegedly gave rise to plaintiffs' claims. It found that the only plausibly alleged conspiracy was an agreement to project a false appearance of financial soundness. Concluding that only those acts "necessary" to a conspiracy 17 Case 17-1569, Document 424, 02/12/2018, 2234077, Page40 of 102 are relevant to the jurisdictional analysis, Socony, 310 U.S. at 253, the District Court rejected plaintiffs' claims that defendants' sales of LIBOR-based instruments could support the exercise of specific personal jurisdiction. That made sense because LIBOR-based transactions could not have impacted LIBOR levels—a conclusion plaintiffs cannot and do not dispute. Accordingly, the District Court held that defendants were subject to jurisdiction only where they determined or submitted suppressed LIBOR quotes. Examining the voluminous filings plaintiffs assembled with the benefit of substantial class discovery, it found plaintiffs had not plausibly alleged that any such conduct took place within the United States. Plaintiffs' mischaracterizations of these submissions on appeal offer no basis to disturb that finding. Plaintiffs protest that Gelboim II required the District Court to credit their alternative assertion: that defendants conspired to profit from their LIBOR-based transactions in the United States. But Gelboim II did not even consider—much less decide—the scope of the alleged agreement or the District Court's jurisdiction; it considered only whether plaintiffs had sufficiently alleged the existence of an antitrust conspiracy. As part of that inquiry, this Court discussed defendants' alleged motives. But motive is irrelevant to the jurisdictional inquiry. And the District Court's subsequent conclusion that plaintiffs had not plausibly alleged an agreement to profit from LIBOR-based borrowing was informed by Gelboim II's 18 Case 17-1569, Document 424, 02/12/2018, 2234077, Page41 of 102 observation that it would be irrational for the banks to suppress LIBOR for the sake of gains in borrowing that would be offset by losses in lending, see 823 F.3d at 783. Even with the benefit of record development since LIBOR I, plaintiffs point to nothing that dispels the obvious implausibility of the allegation that sixteen banks agreed to suppress LIBOR with the parallel intent to be net borrowers for several years when doing so was neither necessary nor even relevant to their alleged aim of suppressing LIBOR to project a false appearance of financial soundness. Plaintiffs fare no better with their argument that defendants somehow "aimed" at the United States their contributions to a rate that referenced conditions in an overseas market and was used worldwide merely because defendants supposedly "knew" U.S. residents would be affected. The Supreme Court has "consistently held" that the "foreseeability of causing injury" is not the test of personal jurisdiction. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985). And it has rejected claims that a defendant's "knowledge" is dispositive. Walden, 134 S. Ct. at 1120 n.3, 1124-25. II. Plaintiffs' attempts to impute the alleged U.S. contacts of certain defendants or their non-party subsidiaries to all defendants through theories of "vicarious" personal jurisdiction are similarly unavailing. Specific personal jurisdiction rests on a defendant's "own affiliation with" the forum. Id. at 1123 19 Case 17-1569, Document 424, 02/12/2018, 2234077, Page42 of 102 (emphasis added). That is why this Court has long required allegations of direction, control, and supervision before imputing a co-conspirator's forum contacts to an absent defendant. See Leasco Data Processing Equip. Corp. v. Maxwell, 468 F.2d 1326, 1330 (2d Cir. 1972), abrogated on other grounds by Morrison v. Nat'l Austl. Bank Ltd., 561 U.S. 247, 256-57, 261 (2010). Plaintiffs do not contend their allegations meet that standard, and their suggestion that mere membership in an alleged conspiracy supports the exercise of personal jurisdiction over every co- conspirator is both foreclosed by precedent and doctrinally unsound. Plaintiffs' bid to circumvent due-process limits on imputing a subsidiary's contacts to its parent is even further from the mark. See Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 930 (2011) (requiring "an inquiry comparable" to veil-piercing) (internal quotation marks omitted). Plaintiffs' argument—based on precedent interpreting the scope of liability under Section 1 of the Sherman Act—would forbid consideration of corporate formalities altogether. Small wonder, then, that plaintiffs can identify no court that has ever adopted it. III. This Court can easily dispose of plaintiffs' forfeited alternative arguments. The District Court's decision to dismiss plaintiffs' claims on due- process grounds has no bearing on the constitutionality of the Clayton Act's service-of-process provision. And plaintiffs' claim that defendants domiciled in the United States are subject to general jurisdiction in any federal judicial district 20 Case 17-1569, Document 424, 02/12/2018, 2234077, Page43 of 102 cannot be squared with Daimler's reasoning. If this Court elects to entertain plaintiffs' new arguments, it should reject them on the merits. IV. Finally, plaintiffs argue that certain defendants forfeited their new jurisdictional defenses by defending judgments obtained on the merits before Daimler and Gucci changed the law of general jurisdiction in this Circuit. Adopting plaintiffs' arguments would invite absurd results, effectively forcing defendants to concede victories on the merits so that courts could consider new alternative grounds for dismissal. That is not how it works. Defendants promptly notified plaintiffs and this Court that they intended to pursue these newly available defenses and then moved to dismiss each affected action as soon as it was possible to do so. In light of defendants' diligence, the District Court did not abuse its discretion in concluding that no defendant forfeited a personal-jurisdiction defense. This Court should affirm. STANDARD OF REVIEW To survive defendants' motion to dismiss for lack of personal jurisdiction, plaintiffs had to make "a prima facie showing that jurisdiction exists," including "an averment of facts that, if credited by the ultimate trier of fact, would suffice to establish jurisdiction over [each] defendant." In re Terrorist Attacks on Sept. 11, 2001, 714 F.3d 659, 673 (2d Cir. 2013) (internal quotation marks omitted). In determining whether plaintiffs met their burden, the District Court was required to 21 Case 17-1569, Document 424, 02/12/2018, 2234077, Page44 of 102 credit plaintiffs' allegations only "to the extent they [we]re uncontroverted by the defendant's affidavits" and to draw all non-argumentative inferences in plaintiffs' favor. Id. (internal quotation marks omitted). This Court reviews a district court's decision to dismiss a claim for lack of personal jurisdiction de novo. See id. It reviews a district court's determination that a defendant did not waive or forfeit a personal-jurisdiction defense for abuse of discretion. See Hamilton v. Atlas Turner, Inc., 197 F.3d 58, 60 (2d Cir. 1999). ARGUMENT I. THE DISTRICT COURT CORRECTLY FOUND THAT PLAINTIFFS FAILED TO SHOW ANY SUIT-RELATED CONTACTS WITH THE UNITED STATES. To show that the District Court could exercise specific personal jurisdiction, this Court's precedents required plaintiffs to plausibly allege that each defendant either carried out some conduct essential to the alleged conspiracy in, or expressly aimed that conduct at, the United States. The District Court correctly concluded that plaintiffs failed to meet that burden. The court held that plaintiffs' allegations that defendants sold LIBOR-based instruments in the United States were jurisdictionally irrelevant, SPA21-22, and it found plaintiffs' allegations and supporting materials insufficient to link defendants' alleged manipulation of LIBOR in London to conduct in this country, SPA26-27. Turning to plaintiffs' efforts to satisfy the so-called "effects" test, the court properly concluded that 22 Case 17-1569, Document 424, 02/12/2018, 2234077, Page45 of 102 plaintiffs had not shown that defendants "expressly aimed" LIBOR manipulation at the United States. SPA22- SPA22-24 (internal quotation marks omitted) omitted).. Each of these conclusions was correct, compelled by by precedent, and consistent with this Court's mandate. A. The Due Process Clause Limits The Scope Of Conduct Relevant To Specific Jurisdiction. Because specific personal jurisdiction is "case-linked," linked," the "inquiry .. . . focuses on the relationship among the defendant, the forum, and the litigation." Walden, Ct. Walden 134 S. Ct. Ct. at 1121 & n.6 (internal quotation marks omitted) omitted). For a court "to exercise jurisdiction consistent with due process, the defendant's suit-related related conduct must create a substantial connection with the forum." Id. at 1121 (emphasis added). added). That does not mean, as plaintiffs suggest (Br. 36 36-40), 40), that any in-forum forum activity, however loosely "related" to the parties' dispute, wi will ll do. Rather, as this Court squarely held in Waldman, Waldman "suit-related related conduct" must be at least a but-for for cause of the plaintiff's claim; claim; it must be the kind of conduct that "could have subjected [the defendant] to liability." 835 F.3d at 335. A plaintif plaintifff facing a motion to dismiss for lack of specific personal jurisdiction must therefore plausibly allege either "that the defendants participated in in"" the alleged misconduct in the forum "or that their liability. . . resulted from their actions that did occ occur" ur" there. Id. at 337 (emphases added); see Walden, Walden, 134 S. Ct. at 1121; Goodyear Goodyear,, 564 U.S. at 919. 23 Case 17-1569, Document 424, 02/12/2018, 2234077, Page46 of 102 Eager for a less demanding test, plaintiffs contend that the question whether a plaintiff's claims are sufficiently related to a defendant's forum contacts "is fundamentally aimed at answering" whether the defendant has "purposefully availed [itself] of the privilege of doing business in the forum." Br. 37 (internal quotation marks omitted). That argument confuses two separate inquiries. The purposeful-availment requirement ensures "that the defendant's conduct and connection with the forum. . . are such that he should reasonably anticipate being haled into court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980) (holding that a court lacked specific personal jurisdiction over a products-liability claim where the manufacturer and distributor had not attempted to serve the market in the forum). That requirement is distinct from, and in addition to, the requirement that the plaintiff's suit be sufficiently related to the defendant's forum contacts. See Burger King, 471 U.S. at 472-73 (contrasting these requirements). As the Supreme Court recently reiterated, "a corporation's continuous activity of some sorts within a [forum] is not enough to support the demand that the corporation be amenable to suits unrelated to that activity." Bristol-Myers Squibb, 137 S. Ct. at 1781 (emphasis added; internal quotation marks and alterations omitted). For a similar reason, plaintiffs are wrong to suggest (Br. 42-44) that personal jurisdiction lies over a defendant whenever a plaintiff's claim has some arguable 24 Case 17-1569, Document 424, 02/12/2018, 2234077, Page47 of 102 connection to a product the defendant placed into the "stream of commerce." The products-liability cases plaintiffs cite address a recurring fact pattern that has nothing in common with the facts alleged in this case: A defendant's product makes its way into the forum and some defect inherent in that product injures the plaintiff. See World-Wide Volkswagen, 444 U.S. at 288 (products-liability claim); Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 105-06 (1987) (same); J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 877-88 (2011) (same). Because the product defect in these cases was the crux of the plaintiff's claim, relatedness was a given. That is why the decisions instead addressed the question whether the defendant purposefully availed itself of the forum—by directing its products there—such that he could reasonably have anticipated being sued there. But LIBOR is a piece of information that was made public, not a product that was sold to plaintiffs. And even if the LIBOR-based financial instruments the bank defendants allegedly sold could be analogized to products like cars (World-Wide Volkswagen), tire valves (Asahi), or metal-shearing machines (Nicastro), plaintiffs' antitrust claims here are based on alleged LIBOR suppression, not on some defect in their financial instruments. Absent the required connection between those claims and defendants' alleged forum contacts, purposeful availment cannot satisfy plaintiffs' burden to establish jurisdiction. 25 Case 17-1569, Document 424, 02/12/2018, 2234077, Page48 of 102 Plaintiffs' breach-of-contract cases are equally inapposite. Br. 42-43. Those cases address specific jurisdiction only over claims based on contractual obligations between a defendant and a forum resident. See McGee v. Int'l Life Ins. Co., 355 U.S. 220, 221 (1957) (claim for breach of insurance contract where contract was delivered in the forum); Burger King, 471 U.S. at 464-68 (similar). They do not suggest that the existence of a contractual relationship between a plaintiff and a defendant alone confers jurisdiction over unrelated matters, such as antitrust claims—let alone claims against defendants that are not in privity with plaintiffs. After all, a plaintiff must establish personal jurisdiction as to each defendant and as to each claim. See Rush, 444 U.S. at 332; Sunward Elecs., 362 F.3d at 24. Nor is there any force to plaintiffs' suggestion (Br. 40-42) that the volume of LIBOR-based instruments defendants allegedly sold in the United States establishes jurisdiction here. A defendant who "has engaged in significant activities within" the forum "or has created continuing obligations between himself and the residents of the forum" has "purposeful[ly] avail[ed]" himself of the forum. Burger King, 471 U.S. at 475-76 (internal quotation marks omitted). But "even regularly occurring sales of a product in a State do not justify the exercise of jurisdiction over a claim unrelated to those sales." Goodyear, 564 U.S. at 930 n.6 (emphasis added). Indeed, in Bristol-Myers Squibb, the defendant drug 26 Case 17-1569, Document 424, 02/12/2018, 2234077, Page49 of 102 manufacturer had sold more than $900 million of the allegedly defective drug in California, yet the Supreme Court deemed that activity insufficient to confer jurisdiction with respect to claims brought by out-of-state plaintiffs. 137 S. Ct. at 1778. Whatever other contacts with the forum a defendant has, specific jurisdiction lies only where "the defendant's suit-related conduct. . . create[s]" the "substantial connection with the forum" that due process requires. Walden, 134 S. Ct. at 1121 (emphasis added). And Waldman holds that, in order to qualify as "suit-related," the conduct must subject the defendant to liability on the plaintiff's claim. See 835 F.3d at 335-36. That principle also explains why plaintiffs find no support from EMI Christian Music Group, Inc. v. MP3tunes, LLC, 844 F.3d 79 (2d Cir. 2016). Plaintiffs suggest (Br. 38) that EMI held that the defendant "did not have to intentionally commit" the alleged offense in the forum "or even aim such conduct specifically and primarily" at the forum to subject himself to specific jurisdiction. That is misleading. The defendant in EMI never disputed the relationship between the alleged contacts and the claim (that is, whether its contacts were suit-related conduct), so the issue was neither pressed nor passed upon. See Br. of Def.- Appellant at 16-25, EMI, 844 F.3d 79 (No. 14-4369), ECF No. 220. Like plaintiffs' other authorities, the decision addressed only whether the defendant's company had "purposefully availed itself of the privilege of conducting activities 27 Case 17-1569, Document 424, 02/12/2018, 2234077, Page50 of 102 within New York." EMI, 844 F.3d at 98 (internal quotation marks and brackets omitted). Plaintiffs' reliance (Br. 39-40) on Chloé v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158 (2d Cir. 2010), and Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 305 F.3d 120 (2d Cir. 2002), is similarly unavailing. These cases do not support plaintiffs' argument that any relationship between a defendant's forum contacts and a plaintiff's claim will do. To the contrary, both decisions are consistent with the requirement that a defendant's forum contacts must be at least a but-for cause of a plaintiff's claim. In Chloé, "the act that was the genesis" of the plaintiff's trademark infringement suit was the defendant's shipment into New York of a counterfeit handbag, and so the court assessed whether the defendant had purposefully directed sales toward New York. 616 F.3d at 165, 171-72. In Bank Brussels, the court found that even if the defendant law firm had not solicited the plaintiffs' business in New York, the firm's cultivation of the New York legal market was a "proximate cause" of the engagement that gave rise to the legal malpractice claims at issue. 305 F.3d at 128; see Waldman, 835 F.3d at 343 (distinguishing Bank Brussels on this basis). To the extent these or any prior cases could be read to endorse a relaxed standard of relatedness, they cannot survive Walden as this Court construed that decision in Waldman. See, e.g., Doscher v. Sea Port Grp. Sec., LLC, 832 F.3d 372, 28 Case 17-1569, Document 424, 02/12/2018, 2234077, Page51 of 102 378 (2d Cir. 2016) (recognizing that "a three-judge three judge panel may issue an opinion that overrules Circuit precedent precedent. . . where an intervening Supreme Court decision casts doubt on the prior ruling") (internal quotation marks omitted) omitted).. Under that superseding precedent, a defendant's contacts with the forum must be at least a for cause of its liability.4 And a deefendant ddoes not subject itself to liability by but-for engaging in lawful transactions in the United States States. B. Plaintiffs Failed To Plausibly Allege Any Suit Suit-Related Related Conduct In The United States. The District Court took seriously its obligation to enforce the rela relatedness tedness requirement. It held that the only suit-related suit related conduct plaintiffs plausibly alleged was the alleged entry into an agreement ment to suppress LIBOR and the determination and submission of suppressed LIBOR quotes necessary to carry that agreement out. All of this activity, the court found, took place overseas. Plaintiffs contend that sales of LIBOR-based LIBOR based instruments in the United States establish the necessary forum contacts. contacts They are mistaken. First, the he District C Court correctly concluded that the alleged alleged sales activity could ould not have mattered mattered—let let alone have been 4 This Court's brief description, in dicta, of pre pre-Waldman Waldman precedent is not to the contrary. contrar SPV OSUS Ltd. v. UBS AG, AG, ___ F.3d ___, No. 16 16-2173 2173, slip op. at 22-23 (2d Cir. Feb. 9, 2018) (citing Chew v. Dietrich Dietrich,, 143 F.3d 24 (2d Cir. 1998)). Chew said only that "it is not unreasonable to say" that something less than "proximate cause" might support support specific jurisdiction if a "defendant's contacts with the jurisdiction that relate to the cause of action are more substantial." 143 F.3d at 29.. It did not articulate any test to determine when contacts with a forum are suit--related. 29 Case 17-1569, Document 424, 02/12/2018, 2234077, Page52 of 102 "necessary"—to a reputation-based conspiracy to suppress LIBOR. SPA9 (internal quotation marks omitted). Second, the District Court heeded this Court's observation that plaintiffs' alternative theory of a conspiracy to profit through sales was "strange" and held that plaintiffs' allegations on that score were implausible. SPA11 (quoting Gelboim II, 823 F.3d at 783). Finally, the District Court found plaintiffs' allegations that certain defendants' U.S.-based personnel participated in determining or submitting LIBOR quotes patently insufficient. SPA27-30. Each of those conclusions was correct and consistent with Gelboim II. 1. Only those acts necessary to a reputation-based conspiracy could qualify as suit-related conduct. The element-driven analysis of suit-related conduct this Court prescribed in Waldman compels the conclusion that defendants' U.S. sales of LIBOR-based financial instruments are jurisdictionally irrelevant to their alleged agreement to persistently suppress LIBOR. Waldman involved a private action for damages under the Antiterrorism Act (ATA), 18 U.S.C. § 2331 et seq., so the Court examined the elements that a plaintiff must prove under the ATA's private cause of action, 18 U.S.C. § 2333(a). See 835 F.3d at 335-36. The ATA's private cause of action subjects defendants to treble damages for injuries sustained "by reason of " conduct prohibited by the underlying statute. Id. at 335 (quoting 18 U.S.C. § 2333(a)). Accordingly, this Court asked whether the defendants' allegedly unlawful conduct had created a 30 Case 17-1569, Document 424, 02/12/2018, 2234077, Page53 of 102 substantial connection to the United States. See id. at 336 (citing 18 U.S.C. § 2331(a)(1) (defining "international terrorism")). Because it had not, this Court concluded that the defendants were not subject to specific personal jurisdiction and ordered the district court to dismiss the case. See id. at 344. Section 4 of the Clayton Act—the statute plaintiffs invoke here—is similar. It requires a plaintiff to establish "(1) a violation of antitrust law; (2) injury and causation; and (3) damages." Cordes & Co. Fin. Servs., Inc. v. A.G. Edwards & Sons, Inc., 502 F.3d 91, 104-05 (2d Cir. 2007) (internal quotation marks omitted). The antitrust violation plaintiffs allege here is a price-fixing conspiracy in violation of Section 1 of the Sherman Act. Under Section 1, it is the entry into an agreement itself that violates the statute. See Whitfield v. United States, 543 U.S. 209, 214 (2005) (noting that the Sherman Act requires no overt act). The scope of the agreement plaintiffs plausibly alleged was thus a natural starting point for the District Court's minimum-contacts analysis. "As an example of the necessary analysis," the District Court cited the Supreme Court's decision in Socony. SPA9. That decision began by looking to the "chief end and objective" of the alleged conspiracy, which was "the raising and maintenance of Mid-Western [gasoline] prices at higher levels." Id. (quoting Socony, 310 U.S. at 253). The Socony Court found that sales of price-fixed gasoline in the forum supported venue because "successful consummation of the 31 Case 17-1569, Document 424, 02/12/2018, 2234077, Page54 of 102 conspiracy necessarily involved" a subsidiary "understanding or agreement" to actually sell the gasoline at the agreed-upon price. 310 U.S. at 253. "The making of those sales," it explained, "supplied part of the 'continuous cooperation' necessary to keep the conspiracy alive." Id. If the defendants had instead "indulged in price cutting and price wars," the "objectives of the conspiracy would fail." Id. Following Socony, the District Court looked to the objective of the alleged agreement to persistently suppress LIBOR. Plaintiffs alleged that defendants "engaged in a horizontal price-fixing conspiracy, with each [LIBOR] submission reporting an artificially low cost of borrowing in order to drive LIBOR down." Gelboim II, 823 F.3d at 766. Assessing the record developed over years of extensive discovery and set out in plaintiffs' voluminous submissions, the District Court held that the only plausibly alleged objective of defendants' conspiracy was the "projection" of the supposedly false appearance "of financial soundness." SPA17. The only conduct "necessary to keep th[at] conspiracy alive," Socony, 310 U.S. at 253, was the determination and submission of suppressed LIBOR quotes. SPA17. The District Court's conclusion that only conduct relevant to setting LIBOR could be suit-related makes sense. As this Court explained in Gelboim II, the daily LIBOR reflected the average of the middle eight of the sixteen panel banks' 32 Case 17-1569, Document 424, 02/12/2018, 2234077, Page55 of 102 submissions. 823 F.3d at 766. Those submissions, in turn, were each bank's answer to a hypothetical question: "At what rate could you borrow funds, were you to do so by asking for and then accepting inter-bank offers in a reasonable market size just prior to 11 a.m.?" Id. at 765. Each bank's answer to that hypothetical was published along with the day's LIBOR for the world to see. Id. at 765-66. All the bank defendants would have needed to do in order to "project" a false appearance of "financial soundness" is quote an artificially low rate. That makes the agreement alleged here quite different from the mine-run price-fixing conspiracy. As the Supreme Court explained in Socony, a typical price-fixing conspiracy cannot succeed unless the would-be conspirators actually sell their products at the agreed-upon price. See 310 U.S. at 252-53. But the District Court rightly observed that "defendants need not engage in any market transactions at all to affect the LIBOR fix." SPA17-18 (internal quotation marks and ellipses omitted). To the contrary, "the goal of the conspiracy would have succeeded regardless of whether any defendants based their products on LIBOR and regardless of whether any defendant bank increased or decreased the margin on their LIBOR-based products." SPA18. Plaintiffs cannot, and so do not, disagree with any of this. Instead, they pitch two arguments—one foreclosed by precedent and common sense, the other forfeited and unsubstantiated. 33 Case 17-1569, Document 424, 02/12/2018, 2234077, Page56 of 102 First, plaintiffs argue (Br. 42) that because injury is an element of a Section 4 claim, their asserted injuries in the United States are suit-related contacts. That is wrong. "[V]iewed through the proper lens—whether the defendant's actions connect him to the forum"—only the first element of a Section 4 claim, a violation of the antitrust laws, can establish the required connection to the forum here. Walden, 134 S. Ct. at 1124; see Waldman, 835 F.3d at 335-36 (addressing only the analogous element of the ATA's private cause of action). To support their contrary contention, plaintiffs cite this Court's description of the elements of New York's long-arm statute, N.Y. C.P.L.R. § 302(a)(1), which asks where the plaintiff's injury occurred. Br. 42 (quoting Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 732 F.3d 161, 169 (2d Cir. 2013)). But even if a long-arm statute takes into consideration the location of a plaintiff's injury, "this Court must make the ultimate determination whether" the exercise of personal jurisdiction "satisfies constitutional due process." Licci, 732 F.3d at 169 (quoting Ehrenfeld v. Mahfouz, 489 F.3d 542, 547 (2d Cir. 2007)). And decades of due- process precedents "ma[k]e clear that mere injury to a forum resident is not a sufficient connection to the forum." Walden, 134 S. Ct. at 1125 (discussing Calder v. Jones, 465 U.S. 783 (1984)). Plaintiffs' injury-based argument also fails as a matter of common sense: an injury is a consequence that flows from a defendant's 34 Case 17-1569, Document 424, 02/12/2018, 2234077, Page57 of 102 conduct—it is not an "action[]" a defendant could "participate[] in" or perform in a forum. Waldman, 835 F.3d at 337. Second, plaintiffs argue (Br. 45-46) that sales of LIBOR-based instruments are jurisdictionally relevant even to a reputation-based conspiracy because defendants projected a supposedly misleading appearance of financial soundness in order to access U.S. credit markets. Plaintiffs did not raise this speculative argument below, and so it is forfeited. See Anderson Grp., LLC v. City of Saratoga Springs, 805 F.3d 34, 50 (2d Cir. 2015) ("It is well settled that arguments not presented to the district court are considered waived and generally will not be considered for the first time on appeal."). It is also unsupported by their allegations. Plaintiffs' only record citation is to reports that certain defendants denied suppressing LIBOR when questioned by news outlets. Br. 26, 46 (citing A8456-57). But those denials say nothing about the agreed-upon scope of the alleged conspiracy. Nor do plaintiffs point to any allegations that any defendant would not have been able to access credit absent the alleged LIBOR suppression. At bottom, plaintiffs' new theory is simply a poorly repackaged version of their claim that defendants conspired to "profit" from LIBOR-based transactions. As explained in more detail below, the District Court correctly rejected that claim as implausible. 35 Case 17-1569, Document 424, 02/12/2018, 2234077, Page58 of 102 2. Plaintiffs have not plausibly alleged that defendants conspired to profit from LIBOR-based transactions. With no persuasive objection to the District Court's suit-related conduct analysis, plaintiffs attack its premise. They claim (Br. 31) that defendants' LIBOR-based transactions count as suit-related conduct because defendants conspired not only to project a false appearance of financial soundness but also to profit from LIBOR-based transactions. Plaintiffs' complaints do not support this claim, and this Court explained in Gelboim II that logic points the other way. Both this Court and the District Court recognized that the bank defendants found themselves on both sides of the market for LIBOR-linked transactions. SPA11 (citing Gelboim II, 823 F.3d at 783). Suppressed LIBOR might have reduced the amount of interest a defendant would have to pay on a debt security it issued, but it would also reduce the stream of LIBOR-linked payments the defendant was owed on instruments it held. The only way the bank defendants could have profited from persistently suppressed LIBOR—and the only way they would have conspired to do so—would be if they owed more in LIBOR-linked obligations than they were due in LIBOR-linked instruments throughout the proposed class period of nearly three years. Id. As the District Court correctly observed, plaintiffs' theory that defendants agreed to suppress LIBOR for profit depended upon two totally implausible premises: first, that every bank defendant owed more in LIBOR-linked payments 36 Case 17-1569, Document 424, 02/12/2018, 2234077, Page59 of 102 than it was owed by others; and second, that the panel banks fixed LIBOR "with the parallel intent to be [ ] net borrower[s] across the suppression period." SPA12 (emphasis added). Plaintiffs cannot challenge that conclusion, and they do not even try. They point to no allegation that supports a conspiracy to profit. And they do not even quibble with the District Court's rejection of the few scraps of supporting materials they advanced below. See SPA13-15. Plaintiffs' only argument (Br. 32-36) is that the mandate rule barred the District Court from considering the scope of the conspiracy at all. That is wrong. The mandate rule prevents a district court from reopening an issue "expressly or impliedly decided by the appellate court." United States v. Ben Zvi, 242 F.3d 89, 95 (2d Cir. 2001) (internal quotation marks omitted). It has no application here. Neither the scope of defendants' alleged agreement nor the District Court's jurisdictional rulings were before this Court in Gelboim II, and this Court did not (expressly or impliedly) address those questions. See 823 F.3d at 782 (describing the decision as one "of narrow scope"). The question in Gelboim II was whether plaintiffs had plausibly alleged an antitrust conspiracy. See, e.g., id. at 780 ("The Banks urge affirmance on the alternative ground that appellants have not adequately alleged conspiracy."). Because plaintiffs had no direct evidence, this Court considered whether they had plausibly alleged "interdependent conduct, accompanied by circumstantial 37 Case 17-1569, Document 424, 02/12/2018, 2234077, Page60 of 102 evidence and plus factors" sufficient to cross the "line separating conspiracy from parallelism." Id. at 781 (internal quotation marks omitted). It found that plaintiffs had alleged two such factors: "a common motive to conspire" and a "high level of interfirm communications." Id. (internal quotation marks omitted). And it concluded that plaintiffs had thus "plausibly alleged the existence of an inter-bank conspiracy." Id. at 782. Plaintiffs seize on this Court's description of the alleged "common motive to conspire—increased profits and the projection of financial soundness." Id. at 781- 82. But as plaintiffs concede elsewhere (Br. 26), defendants' subjective "motive" is "irrelevant" to the jurisdictional inquiry. The relevant question for jurisdictional purposes is the scope of the agreement: what the alleged conspirators actually agreed to do. This distinction between an alleged co-conspirator's motive and the scope of the conspiratorial undertaking is particularly important here because plaintiffs allege no facts from which an agreement to engage in LIBOR-based transactions could plausibly be inferred from defendants' alleged motive to do so. Again, unlike the mine-run price-fixing case, where an agreement to fix prices might imply an agreement to actually sell a product at the fixed price, supra p. 33, an agreement to suppress LIBOR would not have required any activity in the market for LIBOR-based instruments at all. Cf. Socony, 310 U.S. at 253 (agreement to fix prices "necessarily involved an understanding or agreement" to 38 Case 17-1569, Document 424, 02/12/2018, 2234077, Page61 of 102 maintain the fixed price by selling products at that price). And no individual defendant's ability to "profit" from alleged LIBOR suppression would have depended in any way on any other defendant's transactions in LIBOR-based instruments. This Court did not reach these questions, much less endorse plaintiffs' theory of the alleged agreement's scope. To the contrary, it called the idea that banks would have conspired to "profit" from LIBOR manipulation "strange." Gelboim II, 823 F.3d at 783. Given that the banks are both borrowers and lenders, this Court questioned whether "this or that bank (or any bank) would conspire to gain, as a borrower, profits that would be offset by a parity of losses [they] would suffer as a lender." Id. And it recognized that the District Court would have to address this question at "later stages of the litigation." Id. That later stage came on remand, when defendants moved to dismiss for lack of personal jurisdiction on the basis of a record that had developed substantially beyond what was before the Gelboim II court. At that point, plaintiffs had to do more than just allege the existence of a conspiracy. To argue that LIBOR-based transactions were "suit- related," they had to show that the transactions were necessary to the alleged conspiratorial agreement. SPA8; see supra pp. 31-32. That, in turn, required plaintiffs to plausibly allege that defendants had conspired to profit from LIBOR- based transactions in the United States. They failed to do so. 39 Case 17-1569, Document 424, 02/12/2018, 2234077, Page62 of 102 Plaintiffs ignore (Br. 35-36) the record development that occurred between the District Court's first holding in LIBOR IV that plaintiffs had not alleged an antitrust conspiracy and the decision below over a year later. In that time, the District Court ordered defendants to produce to plaintiffs documents they had previously produced to government regulators and prosecutors. ECF No. 1327; ECF No. 1441. Defendants did so and subsequently supplemented their productions. See, e.g., ECF No. 1596 at 1-2. Plaintiffs relied on that discovery in their opposition to defendants' motion to dismiss for lack of personal jurisdiction. See Dorchester Fin. Sec., Inc. v. Banco BRJ, S.A., 722 F.3d 81, 86 (2d Cir. 2013) (per curiam) (district courts may consider "materials outside the pleadings. . . without converting a motion to dismiss for lack of personal jurisdiction into a motion for summary judgment"). For example, they offered dozens of emails and other communications to support their allegations. See CA77-80, 99-326. Plaintiffs' submissions continued right up until the District Court heard argument on the motion. See CA534-706. Indeed, they continued after argument. ECF No. 1638. Only after having reviewed all of these additional materials did the District Court find that plaintiffs had not met their burden to show that defendants agreed to profit from LIBOR-based transactions—let alone LIBOR-based transactions in the United States.5 5 Plaintiffs complain (Br. 27 n.7, 36) that the District Court decided not to 40 Case 17-1569, Document 424, 02/12/2018, 2234077, Page63 of 102 The District Court's conclusion that plaintiffs could not plausibly allege a conspiracy to profit from LIBOR-based transactions was perfectly consistent with this Court's finding that plaintiffs plausibly alleged a profit motive based on the projection of financial soundness. After all, the bank defendants might have reasoned that "increased profits" would "follow[] from a positive reputation." SPA11. As for-profit businesses, some publicly traded, the bank defendants had a financial interest in maintaining public confidence. Indeed, the allegations this Court cited to support its description of the banks' motives suggest if anything that the banks were preoccupied with reputational concerns, including fears of "be[ing] an outlier" or "draw[ing] negative media attention" if they submitted higher LIBOR quotes. See Gelboim II, 823 F.3d at 781 n.19. And even if plaintiffs had plausibly alleged that some (unspecified) defendants were motivated to suppress LIBOR by a desire to profit from transactions in LIBOR-based instruments, that would not establish that all defendants collectively agreed to engage in such transactions.6 allow jurisdictional discovery. But they do not explain how jurisdictional discovery could save their claims. Plaintiffs never alleged that all defendants were net borrowers, and they do not assert on appeal that the extensive discovery the court did permit failed to provide the data they would need to assess whether defendants were net borrowers. 6 As to the British Bankers' Association, BBA Enterprises Ltd., and BBA LIBOR Ltd. (collectively, the "BBA"), plaintiffs do not allege—either in their brief on appeal or in the only relevant complaint here, ECF No. 673—that the BBA 41 Case 17-1569, Document 424, 02/12/2018, 2234077, Page64 of 102 3. Plaintiffs' late-breaking filings failed to establish any U.S.-based participation in the LIBOR-setting process. Unable to rely on the jurisdictionally irrelevant sales of LIBOR-based instruments, plaintiffs lean (Br. 58-66) on assertions that some of defendants' U.S.- based employees participated in the LIBOR-setting process. Because defendants submitted declarations stating that they set and sent their daily submissions overseas, ECF No. 1483 at 15-17 n.23, plaintiffs could not rest on bare allegations alone. Although plaintiffs deluged the District Court with additional statements of supposed "jurisdictional facts," the court correctly concluded that the only arguably relevant claims made in those statements were either misleading or implausible. Start with plaintiffs' assertion (Br. 62) that the District Court "acknowledged" that a Barclays employee based in New York had "admitted" that he directed Barclays' LIBOR submissions. In fact, the District Court came to the opposite conclusion because the article plaintiffs cited in support of that supposed admission directly contradicted plaintiffs' allegation. SPA25-26 n.17; see Amidax Trading Grp. v. S.W.I.F.T. SCRL, 671 F.3d 140, 146-47 (2d Cir. 2011) (per curiam) (an allegation contradicted by the document upon which it relies "is not accepted as transacted in LIBOR-based financial instruments. Nor has any plaintiff alleged that BBA profited or stood to profit—either from a reputational or financial perspective—from an artificially low LIBOR. 42 Case 17-1569, Document 424, 02/12/2018, 2234077, Page65 of 102 true"). As the District Court noted, the article concerns a perceived directive from the Bank of England to lower Barclays' LIBOR submissions that was supposedly conveyed by Barclays' London-based CEO—not any employee based in the United States. SPA25-26 n.17. Plaintiffs counter (Br. 62) that this does not "preclude that directions to suppress LIBOR were also given in the United States," but that unsupported speculation was not a reason for the District Court to exercise personal jurisdiction. See In re Terrorist Attacks, 714 F.3d at 673 (stating that a court need "not draw argumentative inferences in the plaintiff's favor") (internal quotation marks omitted). Or consider plaintiffs' allegation (Br. 60-61) that UBS "admitted" that a UBS manager in Connecticut directed the suppression of LIBOR. Here too, the underlying document contradicts plaintiffs' claim. Plaintiffs point to a paragraph in the statement of facts accompanying UBS's non-prosecution agreement with the Department of Justice. That paragraph relates a Yen trader's understanding— apparently not based on his personal knowledge—about where UBS directed the suppression of U.S.-Dollar LIBOR submissions. SPA28. As the District Court pointed out, however, the very same document states that "the head of ALM in Zurich" directed in an email that submissions be "on the low side" relative to the other banks and that UBS managed its submissions from its Zurich headquarters. A3399-401 ¶¶ 104-05, 108 (emphasis added). The District Court was not required 43 Case 17-1569, Document 424, 02/12/2018, 2234077, Page66 of 102 to credit plaintiffs' argumentative inference that the Yen trader's "understanding" should control the contrary factual assertion in the document plaintiffs themselves submitted. See Amidax, 671 F.3d at 146-47. The trend continues with plaintiffs' allegation (Br. 63) that JPMorgan directed LIBOR suppression from the United States. While the documents plaintiffs rely on show that executives discussed LIBOR submissions and expressed opinions about those submissions, they do not contain a directive or any information about what LIBOR submissions JPMorgan should make. See SPA28.7 To the contrary, the documents show that JPMorgan's LIBOR submitter in London had the authority to make an independent judgment about the submissions. Plaintiffs elsewhere cite (Br. 18) an RBS employee's e-mail "that makes a stray reference to" a former U.S.-based affiliate of Credit Suisse. SPA29. Plaintiffs cannot and do not suggest that this comment by a different bank's employee rebuts Credit Suisse's declaration attesting to the fact that its USD- LIBOR submitters worked for Credit Suisse AG's London Branch and made the 7 The same is true of plaintiffs' list of citations (Br. 60) purportedly showing the "involvement" of U.S.-based JPMorgan personnel in the submission process. Each of the cited documents is merely an intrabank conversation between employees, discussing LIBOR in the context of the overall market, just as one would expect colleagues to discuss any industry-related news. They do not suggest that the U.S.-based personnel involved directed or sent LIBOR submissions, much less support any inference of an interbank conspiracy. 44 Case 17-1569, Document 424, 02/12/2018, 2234077, Page67 of 102 submissions from London, A7791. And the District Court correctly concluded that "[t]his document does not credibly support the allegation." SPA29. Plaintiffs slip into the background section of their brief (Br. 22-23) a claim that defendants electronically transmitted their LIBOR submissions to Thomson Reuters in New York. To support that allegation, plaintiffs rely on the plea allocution of a money market trader (who was not a LIBOR submitter) at Rabobank, expressing his "underst[anding] that someone at Rabobank," first from London and then from Utrecht, "would submit a Rabobank LIBOR rate each day to Thomson Reuters in New York by means of an electronic wire transmission." Tr. at 15, United States v. Stewart, No. 1:14-cr-00272-JSR (S.D.N.Y. Apr. 1, 2015), ECF No. 46. Here again, the District Court was not required to treat a trader's impression of his bank's submission process as indicative of the LIBOR- submission process at that bank or any other bank. SPA26-27. Nor was the District Court required to ignore that discovery materials and the records of proceedings against former Rabobank employees established that the trader misspoke. See ECF No. 1545 at 10-12. And even if this Court credited plaintiffs' internally inconsistent and unsupported allegations that LIBOR submissions were electronically transmitted by submitters from Europe to Thomson Reuters in New York, plaintiffs do not explain how such singular, transient contacts could establish the required 45 Case 17-1569, Document 424, 02/12/2018, 2234077, Page68 of 102 "substantial connection" with the United States necessary to support specific jurisdiction. jurisdiction Walden, Walden, 134 S. Ct. S. Ct. at 1121; see ee SPA26--27 27 (explaining that the transmission of an electronic communication through the United States, without more, does not establish personal jurisdiction); SPV OSUS Ltd. Ltd.,, slip op. at 23 23-24 (similar similar); Laydon v. Bank of Tokyo-Mits Tokyo Mitsubishi ubishi UFJ, Ltd. Ltd., No. 12-cv cv-3419-GBD GBD, (similar).8 2017 WL 1113080, at *4 (S.D.N.Y. Mar. 10, 2017) (similar) C. Plaintiffs Failed To Plausibly Allege That Defendants "Expressly Aimed" Any Suit-Related Suit Related Conduct At The United States. With no plausible allegation of suit-related suit related conduct in the United States, plaintiffs invokee the so-called so called "effects" test (Br. 48-57) 57) and claim that the foreseeable effects in the United States of alleged LIBOR suppression overseas establish the necessary minimum contacts. contacts Plaintiffs' caric caricature ature of the doctrine cannot withstand scrutiny. "The proper question" under the effects test "is is not where the plaintiff experienced a particular injury or effect but whether the defendant's conduct connects him to the forum in a meaningful way. way." Walden Walden, 134 S. Ct. at 1125. 1125 A plaintiff seeking to establish jurisdiction based on in in-forum forum effects must therefore show that the defendant's "intentional, and allegedly 8 The same goes for plaintiffs' assertion that a BBA employee allegedly traveled to the United States on a limited number of occasions to meet with regulators lators and investors regarding LIBOR. A5091. A couple of visits that had nothing to do with determining or transmitting LIBOR cannot have created a substantial, suit-related suit related connection to the United States. 46 Case 17-1569, Document 424, 02/12/2018, 2234077, Page69 of 102 tortious, actions were expressly aimed at" the forum and "calculated to cause injury" there. Calder, 465 U.S. at 789, 791; Waldman, 835 F.3d at 337. Plaintiffs have not done so here. Nothing in plaintiffs' pleadings or submissions supports their assertion that defendants expressly aimed any suit-related conduct at the United States in a manner calculated to cause injury here. The District Court carefully reviewed plaintiffs' "voluminous submissions" in connection with the motion to dismiss for lack of personal jurisdiction and concluded that they contain "no suggestion. . . that [the] foreign defendants aimed their manipulative [persistent suppression] conduct at the United States or any particular forum state." SPA22-23 (internal quotation marks omitted, second alteration in original).9 9 For similar reasons, a series of district courts have dismissed antitrust claims related to other benchmark rates on personal-jurisdiction grounds. See FrontPoint Asian Event Driven Fund, L.P. v. Citibank, N.A., No. 16-cv-5263-AKH, 2017 WL 3600425, at *7 (S.D.N.Y. Aug. 18, 2017) (explaining that foreseeable harm does not establish express aiming); In re Platinum & Palladium Antitrust Litig., No. 1:14-cv-9391-GHW, 2017 WL 1169626, at *44-49 (S.D.N.Y. Mar. 28, 2017) (same); Laydon, 2017 WL 1113080, at *3-5 (same); Sullivan v. Barclays PLC, No. 13-cv-2811-PKC, 2017 WL 685570, at *45-49 (S.D.N.Y. Feb. 21, 2017) (same); Laydon v. Mizuho Bank, Ltd., No. 12-cv-3419-GBD, 2015 WL 1515358, at *3-6 (S.D.N.Y. Mar. 31, 2015) (same); 7 W. 57th St. Realty Co. v. Citigroup, Inc., No. 13-cv-981-PGG, 2015 WL 1514539, at *10-11 (S.D.N.Y. Mar. 31, 2015) (same). But see Sonterra Capital Master Fund Ltd. v. Credit Suisse Group AG, No. 1:15- cv-00871-SHS, 2017 WL 4250480 (S.D.N.Y. Sept. 25, 2017) (finding plausible allegations of a conspiracy among derivatives traders to profit on individual U.S.- based transactions). 47 Case 17-1569, Document 424, 02/12/2018, 2234077, Page70 of 102 Plaintiffs protest (Br. 49) that defendants knew or should have known that their conduct would harm people in the United States because they issued LIBOR- based instruments here. That argument is a thinly veiled bid to impose jurisdiction based on nothing more than the foreseeability of harm in the forum. Decades of case law foreclose that gambit. As the Supreme Court has "consistently held," the "foreseeability of causing injury in another State" cannot be the test of personal jurisdiction. Burger King, 471 U.S. at 474; see Leasco, 468 F.2d at 1341 n.11. Indeed, Walden rejected an analogous argument even though the plaintiffs there alleged that the defendant "definitely knew" when he committed tortious acts against them in Georgia that they "had a significant connection to Nevada." 134 S. Ct. at 1120 & n.3 (internal quotation marks omitted). The problem in that case—as here—was that the defendants' alleged knowledge of the plaintiffs' connection to the forum "obscure[d] the reality that none of [the defendant's] challenged conduct had anything to do with Nevada itself." Id. at 1125 (emphasis added). The plaintiffs "lacked access to their funds in Nevada not because anything independently occurred there, but because Nevada is where [they] chose to be at a time when they desired to use the funds seized by" the defendant. Id. Waldman reinforces Walden's teaching; it held that plaintiffs who are the alleged victims of an "indiscriminate [conspiracy] that occurred abroad" cannot establish personal jurisdiction over a defendant based on the happenstance that the 48 Case 17-1569, Document 424, 02/12/2018, 2234077, Page71 of 102 plaintiffs were Americans. 835 F.3d at 337. That is so even where the defendants may have understood that their alleged conspiracy would have an effect in the United States. The mere knowledge that injuries would occur in the United States, without more, cannot give rise to personal jurisdiction absent controversy-linked conduct taking place in the United States. Id. As Walden put it, the forum itself must be "the focal point both of the story and of the harm suffered." 134 S. Ct. at 1123 (internal quotation marks omitted). Leasco, on which plaintiffs rely, reached the same conclusion. The defendant in Leasco was a London accounting firm that allegedly produced false and misleading reports about a company's financial health. 468 F.2d at 1342. The plaintiff claimed that the firm "must have known that its reports. . . would be relied on by anyone interested in buying. . . shares" of the company. Id. But this Court, speaking through Judge Friendly, found that principle too broad. "Although such worldwide reliance may be, in a sense, foreseeable, it is not sufficiently so to constitute a basis of personal jurisdiction consonant with due process." Id. Here too, although worldwide use of LIBOR may have been foreseeable, that is not enough to support personal jurisdiction.10 10 To the extent Leasco suggests that some greater degree of foreseeability would suffice, Walden forecloses such a rule. 49 Case 17-1569, Document 424, 02/12/2018, 2234077, Page72 of 102 Like the plaintiffs in Walden, Waldman, and Leasco, plaintiffs here "would have experienced" the exact same effects from defendants' alleged manipulation of LIBOR "wherever else they might have traveled and found themselves wanting" higher interest rates "than they had." Walden, 134 S. Ct. at 1125. The alleged conspiracy concerned a benchmark used "indiscriminate[ly]" by independent actors in markets across the world. Waldman, 835 F.3d at 337. The effects test provides no basis for personal jurisdiction in the United States based on the foreseeability of LIBOR's worldwide relevance. Plaintiffs protest (Br. 55) that defendants fixed "U.S. prices in U.S. markets." But this cannot be squared with plaintiffs' own allegations. Plaintiffs allege that defendants manipulated a benchmark set in London based on the participants' perceptions of borrowing rates in the London inter-bank market. That U.S.-Dollar LIBOR is denominated in dollars does not transform it into a "U.S. price" any more than the State of Israel issuing a U.S.-Dollar LIBOR-based debt security turns that security into a "U.S." bond. See A507 (Bondholder Compl. ¶ 16) (alleging that one of the plaintiffs held a LIBOR-based debt security issued by the State of Israel). As in Waldman, plaintiffs cannot obscure the reality that none of defendants' conduct was aimed at the United States itself. In re Magnetic Audiotape Antitrust Litigation, 334 F.3d 204 (2d Cir. 2003) (per curiam), is not to the contrary. In that case, this Court found that the plaintiffs' 50 Case 17-1569, Document 424, 02/12/2018, 2234077, Page73 of 102 allegations "arguably would satisfy" the effects test because they claimed that "manufacturers and distributors of magnetic audiotape[] conspired to fix the price of such tape in the United States." Id. at 206, 208 (emphases added). That dictum offers no support for plaintiffs' claims based on alleged LIBOR suppression overseas. The district court cases plaintiffs cite (Br. 54) are irrelevant for the same reason. Unlike plaintiffs here, the plaintiffs in each of those cases pointed to allegations the courts there found plausible—in the form of planning documents or U.S. sales pursuant to a mine-run price-fixing conspiracy sustained by the alleged conspirators' sales of goods at artificially high prices—to show that the defendants intentionally aimed their conduct at the relevant forum.11 And the case plaintiffs 11 See In re Capacitors Antitrust Litig., No. 14-cv-03264-JD, 2015 WL 3638551 (N.D. Cal. June 11, 2015) (mine-run price-fixing conspiracy where the defendant sold products to U.S. customers); In re Vitamin C Antitrust Litig., Nos. 06-MD-1738-BMC-JO & 05-CV-453-BMC-JO, 2012 WL 12355046, at *12 (E.D.N.Y. Aug. 8, 2012) (same); In re TFT-LCD (Flat Panel) Antitrust Litig., Nos. M-07-1827-SI & C-11-0829-SI, 2011 WL 5444261 (N.D. Cal. Nov. 9, 2011) (same, and memoranda showed that the defendants expressly targeted U.S. markets); In re Fasteners Antitrust Litig., No. 08-md-1912, 2011 WL 3563989 (E.D. Pa. Aug. 12, 2011) (same, and plaintiffs specifically alleged that defendants had discussed targeting U.S. markets and customers in meetings); In re Bulk (Extruded) Graphite Prods. Antitrust Litig., No. 02-6030-WHW, 2007 WL 2212713 (D.N.J. July 30, 2007) (same); In re Vitamins Antitrust Litig., 270 F. Supp. 2d 15 (D.D.C. 2003) (same). The same is true of two benchmark-rate cases on which plaintiffs rely (Br. 51 n.10). See In re N. Sea Brent Crude Oil Futures Litig., No. 13-md-02475-ALC, 2017 WL 2535731, at *10 (S.D.N.Y. June 8, 2017) ("Phibro Commodities concedes that it directed at least some of its conduct at the 51 Case 17-1569, Document 424, 02/12/2018, 2234077, Page74 of 102 emphasize (Br. 51) did not even apply the effects test. Rather, the court in Sonterra, found that the specific allegations and supporting materials relating to a conspiracy among derivatives traders to profit on individual transactions, which bears no resemblance to the persistent-suppression conspiracy alleged here, made out a prima facie case that the defendants sought to profit from transactions within the United States. 2017 WL 4250480, at *52. Setting aside the court's misapplication of Walden and Waldman—which makes it an outlier among district courts considering similar claims, see supra p. 47 n.9—Sonterra never considered whether the alleged conduct was "expressly aimed" at the United States. Plaintiffs' criticism of the District Court's conclusion that defendants did not aim the alleged LIBOR suppression at the United States (Br. 56) once again conflates distinct lines of personal-jurisdiction doctrine. That a defendant purposefully availed itself of a national (or international) market generally does not establish that it has engaged in any suit-related conduct in a particular forum. See Bristol-Myers Squibb, 137 S. Ct. at 1781. Plaintiffs' antitrust claims seek to hold defendants liable for manipulating LIBOR, a benchmark set in London, based on estimates of bank borrowing costs in London, and used in financial instruments worldwide. The mere foreseeability that Americans would be among those United States. . . ."); In re Foreign Exch. Benchmark Rates Antitrust Litig., No. 13- cv-7789-LGS, 2016 WL 1268267, at *6 (S.D.N.Y. Mar. 31, 2016). 52 Case 17-1569, Document 424, 02/12/2018, 2234077, Page75 of 102 affected by LIBOR levels because they bought LIBOR LIBOR-linked linked instruments does not transform those sales into jurisdictionally relevant contacts contacts. II. THE DISTRICT COURT PROPERLY REJECTED PLAINTIFFS' THEORIES OF VICARIOUS PERSONAL JURISDICT JURISDICTION. ION. Even if plaintiffs could plausibly allege that some defendants or non-party party subsidiaries engaged in some suit-related related conduct in or expressly aimed at the United States, which they have not, that would not justify the exercise of personal jurisdiction jurisdiction over every defendant. "Due Due process requires requires" that specific personal jurisdiction be based on a defendant's "own affiliation with the" forum rather than "the 'random, fortuitous, or attenuated' contacts he makes by interacting with other persons affiliated affiliated with the State." Walden, Walden, 134 S. S. Ct. Ct. at 1123 (quoting Burger King,, 471 U.S. at 475). Ignoring this admonition admonition,, plaintiffs ask this Court to endorse a form of collective personal jurisdiction, based either on alleged membership in the same conspiracy or on corporate affiliations. Plaintiffs' laintiffs' arguments violate basic due- due-process process principles and rely on insufficient allegations allegations. A. Plaintiffs' Theory Of Conspiracy Jurisdiction Is Fundamentally Inconsistent With Due Process. Because the District Court concluded that plaintiffs had not plausibly alleged that any defendant committed acts in furtherance of the alleged conspiracy in the United States, it did not consider whether plaintiffs' theory of "conspiracy" 53 Case 17-1569, Document 424, 02/12/2018, 2234077, Page76 of 102 jurisdiction comports with due process. SPA31-32.12 Plaintiffs' barely developed defense of that theory on appeal is unavailing. 1. Plaintiffs fail to allege the requisite direction, control, and supervision this Court's precedents require. Leasco forecloses the possibility of personal jurisdiction based on mere membership in an alleged conspiracy. The plaintiffs in Leasco alleged that the defendants conspired to fraudulently induce them into investing in Pergamon, a British publisher. 468 F.2d at 1330. Their allegations concerned Pergamon's owner, Robert Maxwell, his London-based attorney and a Pergamon director, Isidore Kerman, and Kerman's law partner, Paul DiBiase. The plaintiffs alleged that Maxwell and DiBiase met with them in New York and misrepresented Pergamon's financial health and prospects. Kerman attended meetings in London, where he "remain[ed] silent" while Maxwell made misrepresentations, though he knew Maxwell's goal was to sell shares to the plaintiffs. Id. at 1343. Judge Friendly's opinion for the court began by rejecting conspiracy jurisdiction out of hand: "[T]he rule in this circuit is that the mere presence of one conspirator, such as Maxwell, does not confer personal jurisdiction over another 12 Nor did the District Court consider whether the exercise of vicarious personal jurisdiction "comport[s] with fair play and substantial justice." Licci, 732 F.3d at 170 (quoting Burger King, 471 U.S. at 476). Defendants argued below that reasonableness considerations provide an additional basis to dismiss on personal jurisdiction grounds, particularly as to certain defendants. ECF No. 1483 at 26-27; ECF No. 1545 at 21-22. 54 Case 17-1569, Document 424, 02/12/2018, 2234077, Page77 of 102 alleged conspirator." Id. Nor was "the partnership relation between Kerman and DiBiase alone" enough to treat DiBiase's contacts with New York as "the equivalent, for purposes of personal jurisdiction, of acts by Kerman." Id. Even though Kerman knew about the conspiracy and its goals, and even though he was the business partner of one of the conspirators, due process required more. Leasco suggested that the result might be different if "the relationship was the closer one between a senior partner, especially one who is a director of the client, and a younger partner to whom he has delegated the duty of carrying out an assignment over which the senior retains general supervision." Id. Leasco's requirement of direction, control, and supervision aligns with the principle that personal jurisdiction must be based on contacts that "the defendant himself creates with the forum." Walden, 134 S. Ct. at 1122 (internal quotation marks omitted). Plaintiffs do not acknowledge this aspect of Leasco (much less attempt to distinguish it) on appeal, and they did not argue that their allegations met its requirements before the District Court. Nor could they. Plaintiffs' allegations do not show that any defendant exercised direction, control, and supervision over another. Under this Circuit's precedent, that is the end of the matter. Plaintiffs' misplaced reliance on cases endorsing co-conspirator liability cannot salvage their theory. This Court has held for over sixty years that 55 Case 17-1569, Document 424, 02/12/2018, 2234077, Page78 of 102 substantive liability and jurisdiction are distinct questions. Thus, in Bertha Building Corp. v. National Theatres Corp., 248 F.2d 833 (2d Cir. 1957), this Court rejected the idea that "all foreign corporations which are alleged to be co- conspirators are amenable to process" under the Clayton Act's venue provision simply "because of the presence within the jurisdiction of one co-conspirator." Id. at 836. As a result, it saw no conflict in a finding that a member of a conspiracy could "ha[ve] no agents in California" for jurisdictional purposes even though it "conspired with others to cause injury to the plaintiffs in California." Id.; see also H. L. Moore Drug Exch., Inc. v. Smith, Kline & French Labs., 384 F.2d 97, 98 (2d Cir. 1967) (per curiam) ("[T]he presence of one co-conspirator within the jurisdiction does not give jurisdiction over all who are alleged to be co- conspirators."). The distinction between liability and personal jurisdiction makes sense. "[C]o-conspirator liability" is not the same as "co-conspirator authority." Société Générale v. Fed. Ins. Co., 856 F.2d 461, 465 (2d Cir. 1988). So although a defendant can establish forum contacts "through an agent," Walden, 134 S. Ct. at 1122, a defendant's mere membership in an alleged conspiracy does "not, standing alone, cloak" its co-conspirators with the authority to act on its behalf, Société Générale, 856 F.2d at 465; see Walden, 134 S. Ct. at 1123 ("[A] defendant's relationship with a plaintiff or third party, standing alone, is an insufficient basis 56 Case 17-1569, Document 424, 02/12/2018, 2234077, Page79 of 102 for jurisdiction."). Small wonder that a string of district courts have rejected or questioned conspiracy jurisdiction since Walden reaffirmed that the "defendant himself " must be the focus of the jurisdictional inquiry. 134 S. Ct. 1122 (internal quotation marks omitted). See, e.g., In re N. Sea Brent Crude Oil Futures Litig., 2017 WL 2535731, at *9 (collecting cases). Plaintiffs cite Socony (Br. 58) for the proposition that an overt act in the forum by any co-conspirator "bound all," but that case cannot support plaintiffs' argument either. 13 Socony addressed a question of venue under the Sixth Amendment in a criminal antitrust prosecution. The Supreme Court long ago declined to import that decision's reasoning into civil antitrust litigation. Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 384 (1953); see SEC v. Johnson, 650 F.3d 710, 715 (D.C. Cir. 2011) (Bankers Life, "as a practical matter, was the end of the co-conspirator theory of venue in antitrust.").14 13 Plaintiffs' citation (Br. 58) to this Court's decision ninety years ago in Van Riper v. United States, 13 F.2d 961 (2d Cir. 1926), is no more availing. That decision concerned the admissibility of co-conspirator statements in a criminal trial. Id. at 967. It has nothing to do with personal jurisdiction, and cannot overcome the clear rejection of conspiracy jurisdiction in Leasco and the precedents on which it relied. 14 The distinction between civil and criminal conspiracy also makes sense in light of the different due-process requirements for civil and criminal proceedings. While a defendant may be subjected to a forum's civil jurisdiction only on the basis of a defendant's voluntary contacts, see Walden, 134 S. Ct. at 1221, it a criminal defendant's due process rights are "satisfied when one present in court is convicted of crime. . . in accordance with constitutional procedural safeguards"— 57 Case 17-1569, Document 424, 02/12/2018, 2234077, Page80 of 102 2. Plaintiffs have not alleged "overt acts" in the forum. Even if plaintiffs' expansive theory of conspiracy jurisdiction could be reconciled with the requirements of due process, process, it would not support the exercise of personal jurisdiction over these actions. actions. In plaintiffs' telling, they only had to show that a "co-conspirator "co conspirator committed a tortious act pursuant to the conspiracy in this jurisdiction." Br. 58 (internal quotation quotation marks omitted). But, aass discussed above in detail, plaintiffs failed to show that any defendant acted to further the alleged conspiracy in any jurisdictionally relevant sense in the United States. See supra pp. 29-46.. B. Plaintiffs Have Failed To Plausibly Plausibly Allege A Basis To Impute The Forum Contacts Of Defendants' Subsidiaries. Plaintiffs briefly contend (Br. 47-48) 47 48) that conduct by non non-party party subsidiaries of certain defendants must be imputed to their corporate parents. Once again, plaintiffs' arguments arguments run into the requirement that specific personal jurisdiction "must arise out of contacts that the defendant himself creates with the forum forum." Walden,, 134 S. Ct. at 1121-22 22 (internal quotation marks omitted). The principle that a parent corporation "is not not liable for the acts of its subsidiaries" is "deeply ingrained in our economic and legal systems." United States v. Bestfoods Bestfoods,, 524 U.S. regardless of his contacts with the forum, Frisbie v. Collins Collins,, 342 U.S. 519, 522 (1952). 58 Case 17-1569, Document 424, 02/12/2018, 2234077, Page81 of 102 51, 61 (1998) (internal quotation marks omitted). And it applies equally to questions of personal jurisdiction. The Supreme Court has explained that "merging parent and subsidiary for jurisdictional purposes requires an inquiry comparable to the corporate law question of piercing the corporate veil." Goodyear, 564 U.S. at 930 (internal quotation marks omitted); see also, e.g., Keeton, 465 U.S. at 781 n.13 (holding that jurisdiction over a corporate parent does not "automatically establish jurisdiction over a wholly owned subsidiary"). To pierce the corporate veil between distinct corporate entities, a plaintiff must show that the defendant corporation "ha[s] exercised such control that the [subsidiary] has become a mere instrumentality of the [defendant], which is the real actor." Freeman v. Complex Computing Co., 119 F.3d 1044, 1052 (2d Cir. 1997) (internal quotation marks omitted). Plaintiffs cannot meet that exacting standard. Plaintiffs assert (Br. 47) that they alleged that defendants "exercised complete dominion over" their U.S. subsidiaries and that "the district court did not purport to find otherwise." But the District Court concluded that plaintiffs did not demonstrate a "merging [of] parent and subsidiary for jurisdictional purposes." SPA25 (quoting Goodyear, 564 U.S. at 930). And plaintiffs point to no allegation that could support a contrary conclusion. The pleadings and declarations they do cite discuss subsidiaries of just four defendants, and none of those allegations 59 Case 17-1569, Document 424, 02/12/2018, 2234077, Page82 of 102 demonstrate that any subsidiary was the agent of any defendant for the purpose of manipulating LIBOR. See SPA24-26; cf. Daimler, 134 S. Ct. at 759 (noting that "the fact that one may be an agent for one purpose does not make him or her an agent for every purpose" (internal quotation marks omitted)).15 Court after court has refused to impute the forum contacts of subsidiaries on similarly deficient allegations. See, e.g., In re Aluminum Warehousing Antitrust Litig., 90 F. Supp. 3d 219, 232 (S.D.N.Y. 2015); In re Foreign Exch. Benchmark Rates Antitrust Litig., 2016 WL 1268267, at *7; Laydon, 2015 WL 1515358, at *5; Boyce v. Cycle Spectrum, Inc., 148 F. Supp. 3d 256, 268-69 (E.D.N.Y. 2015). The District Court did not err by refusing to impute the forum contacts of non-party subsidiaries to their defendant parents. Apparently recognizing that they cannot meet the applicable standard, plaintiffs ask this Court (Br. 47) to ignore long-settled principles of corporate law in favor of an unprecedented test purportedly based on the Supreme Court's decision in Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752 (1984). But Copperweld did not purport to address "the extent of control exercised by every parent company over a subsidiary." Scandinavian Satellite Sys., AS v. Prime 15 Indeed, the complaints plaintiffs relied on below were not filed by any appellant here. See ECF No. 1524 at 10 n.24. To the extent any of the assertions plaintiffs cited in the Kaas declaration are jurisdictionally relevant, they still fail to demonstrate that the subsidiaries were defendants' alter egos for the purpose of manipulating LIBOR. See ECF No. 892 ¶¶ 7-8, 39-44, 53-54. 60 Case 17-1569, Document 424, 02/12/2018, 2234077, Page83 of 102 TV Ltd., 291 F.3d 839, 846 (D.C. Cir. 2002). Rather, that case answered the question "whether a parent corporation and its wholly owned subsidiary [we]re legally capable of conspiring with each other under § 1 of the Sherman Act" as a matter of statutory interpretation. Copperweld, 467 U.S. at 755. The Court explained that Congress intended Section 1 to police only those "agreements" that involve the "sudden joining of two independent sources of economic power previously pursuing separate interests." Id. at 770-71. Because "[a] parent and its wholly owned subsidiary have a complete unity of interest," the Court concluded that their "coordinated activity. . . must be viewed as that of a single enterprise for purposes of § 1 of the Sherman Act." Id. at 771 (emphasis added). Given Copperweld's exclusive focus on the scope of Section 1, it is not surprising that plaintiffs can identify no court that has ever so much as suggested that Copperweld has jurisdictional significance. To the contrary, the leading antitrust treatise observes that Copperweld did not change the fundamental principle "that a parent's mere ownership and power to control a subsidiary are not alone sufficient to make the parent and its subsidiary a single entity for jurisdictional purposes." IB Phillip E. Areeda & Herbert Hovenkamp, Antitrust 61 Case 17-1569, Document 424, 02/12/2018, 2234077, Page84 of 102 Law ¶ 271c3 271c3 (4th (4th ed. 2013); 2013); see also Keeton, Keeton, 465 U.S. at 781 n.13. As explained above, plaintiffs have failed to make the necessary showing here. 16 III. PLAINTIFFS' REMAINING ARGUMENTS ARE FORFEITED AND WRONG. A. The Decision Below Does Not Implicate The Constitutionality Of The Clayton Act's Nationwide Service Service-Of-Process Process Provision. Plaintiffs contend (Br. 66-69) 66 69) that the District Court's conclusion that it lacked specific personal jurisdiction calls into question the constitutionality of the Clayton Act's nationwide service-of-process service process provision. 15 U.S.C. §§ 22. 22. Plaintiffs never mentioned that argument below, and they offer no reason to excuse the forfeiture here. See, e.g., e.g. Katel Ltd. Liab. Co. v. AT&T Corp. Corp.,, 607 F.3d 60, 68 (2d Cir. 2010). 2010). What is more, plaintiffs are wrong. This his Court has consistently described the requirement of a statutory basis for personal jurisdiction as independent of due-process due process limitations. limitations See, e.g. e.g., Licci,, 732 F.3d at 170. And courts routinely decline to exercise exercise personal jurisdiction on due due-process process grounds without questioning the constitutionality of the statute authorizing service of process. See, e.g., e.g. BNSF Ry. Co. v. Tyrrell,, 137 S. S. Ct. Ct. 1549, 1558 (2017) (state 16 Plaintiffs complain that the District Court failed to credit their allegation that a New York-based York based executive of a wholly owned subsidiary of Barclays admitted to "instruct[ing] subordinates to submit artificially artificially low USD LIBOR rates." Br. 21 21- 22; see SPA25-26 26 n.17). Leaving aside that this allegation is directly contradicted by the document upon which it relies, see supra pp. 42--43,, it still falls short of showing that the subsidiary was acting as an instrumenta instrumentality lity of the parent and therefore does not support vicarious vicarious personal jurisdiction. 62 Case 17-1569, Document 424, 02/12/2018, 2234077, Page85 of 102 statute); Waldman, Waldman, 835 F.3d at 343-44 34 4 (federal statute statute). Because of its due due-process process holding, the t District Court had no need to address the scope of Section 22. And several everal defendants argued below that plaintiffs had not met their burden to show proper service of process, under either the Clayton Act or state long long-arm arm statutes. See ECF No. 1483 at 23-29 & n.40.17 B. Plaintiffs' Novel General-Personal General Personal-Jurisdiction Jurisdiction Argument Cannot Be Reconciled With Daimler's Daimler's Reasoning. In a last-ditch ditch effort to get around the fact that all of the arguably suit suit-related related conduct they allege took place overseas, plaintiffs plaintiffs aadvance dvance a skeletal argument (Br. 30-31) 31) that the Constitution permits federal courts to hear federal civil claims against any defendant based on nothing more than its physical presence in the United States. States. Plaintiffs never developed that argument in their responses to defendants' motion to dismiss or at argument below, ECF No. 1642, and the 17 The BBA, for example, argued that the Clayton Act's nationwide service service-of- process provision speaks to service of process only with respect to "a corporation" and therefore therefore cannot confer personal jurisdiction over the British Bankers' Association—an Association an English unincorporated association. See ECF No. 1483 at 29 n.40. Other defendants argued that they were not subject to service of process because plaintiffs had not met their burden to establish venue. See, e.g. e.g., id.. at 1 n.1, 3, 27-29. 27 29. The Clayton Act's "service of process provision applies (and, therefore, establishes personal jurisdiction) only in cases in which its venue provision is satisfied." Daniel v. Am. Bd. of Emer Emergency gency Med. Med.,, 428 F.3d 408, 423 (2d Cir. 2005). And so these defendants contended that plaintiffs could not rely on this provision. The District Court did not address these issues and this Court should decline plaintiffs' invitation (Br. 66-69) 66 69) to consider them for the first time on appeal. 63 Case 17-1569, Document 424, 02/12/2018, 2234077, Page86 of 102 District Court did not address it. A handful of plaintiffs obliquely mentioned the issue when seeking "clarification" of the District Court's decision, but the court unsurprisingly found "nothing to clarify." SPA72. 18 This Court has held repeatedly that arguments inadequately developed or advanced before a district court are not preserved for review. See, e.g., In re Nortel Networks Corp. Sec. Litig., 539 F.3d 129, 132-33 (2d Cir. 2008) (per curiam) (finding argument that merely "resembl[ed]" argument made below and where appellant "did not even cite the. . . authority upon which it. . . primarily relie[d]" below was forfeited). In any event, plaintiffs are wrong. The Supreme Court has sharply narrowed the scope of general jurisdiction, relegating it to "a less dominant place in the contemporary scheme." Daimler, 134 S. Ct. at 758. Thus, in Daimler, the Court held that a corporation is amenable to jurisdiction for claims unrelated to its forum contacts only where it is "at home"—generally, "its formal place of incorporation or principal place of business." Id. at 761 & n.19. Otherwise, the plaintiff must establish that its claims arise from or relate to the defendant's forum contacts. See supra pp. 4-5. 18 Indeed, plaintiffs disclaimed any intent to re-argue the merits, urging that they "only sought leave to move for clarification so the Court could resolve what [they] perceived to be an internal inconsistency in LIBOR VI." ECF No. 1731; see ECF No. 1688 at 1-2 (discussing specific-personal-jurisdiction cases applying a nationwide-contacts analysis). 64 Case 17-1569, Document 424, 02/12/2018, 2234077, Page87 of 102 Plaintiffs' argument cannot be squared with Daimler's reasoning. Daimler held that it would "not accord with the fair play and substantial justice due process demands" to subject a corporation to claims unrelated to its forum contacts in a State in which it was not incorporated or did not have its principal place of business. 134 S. Ct. at 763 (internal quotation marks omitted). But if, for example, forcing a New York corporation to answer federal claims in state court in Hartford that are unrelated to its Connecticut contacts is fundamentally unfair, plaintiffs cannot dispel that problem by bringing suit in the United States courthouse down the street. Plaintiffs contend (Br. 30) that Daimler speaks only to the limits on a State's sovereign authority. They claim (Br. 24, 30) that it does not address a federal court's exercise of federal sovereign authority when it hears federal claims. But due process is not concerned solely with the limits of sovereign authority. Although the Fourteenth Amendment's limits on state-court jurisdiction are motivated partly by federalism concerns, the Supreme Court has explained that "the primary concern is the burden on the defendant." Bristol-Myers Squibb, 137 S. Ct. at 1780 (emphasis added; internal quotation marks omitted); see Walden, 134 S. Ct. at 1122 ("Due process limits. . . principally protect the liberty of the nonresident defendant—not the convenience of plaintiffs or third parties."). And the burden imposed on a defendant forced to litigate outside its home State does 65 Case 17-1569, Document 424, 02/12/2018, 2234077, Page88 of 102 not vary based on whether the sovereign authority at issue is the federal government's or a State's. So even though the relevant forum for Fifth Amendment purposes is the United States, the reasoning that underlies the state- based territorial limits on general jurisdiction Daimler reaffirmed in the Fourteenth Amendment context applies equally in the Fifth Amendment context.19 Plaintiffs do not explain how subjecting a defendant to jurisdiction anywhere in the United States for claims arising from overseas conduct could "accord with the fair play and substantial justice due process demands." Daimler, 134 S. Ct. at 763 (internal quotation marks omitted). Nor do they identify any authority for their argument that post-dates the advent of the rigorous distinction between general and specific jurisdiction that marks contemporary personal-jurisdiction doctrine. See, e.g., id. at 753-58 (tracing the development of the doctrine). Instead, plaintiffs rely on Mariash v. Morrill, 496 F.2d 1138 (2d Cir. 1974). But that is best understood as a specific-personal-jurisdiction case. The plaintiff in Mariash was a 19 Even if plaintiffs were correct as a matter of due process, they do not contend that they could rely on the Clayton Act's service-of-process provision to assert personal jurisdiction with respect to claims not "under the antitrust laws." 15 U.S.C. § 22; see Waldman, 835 F.3d at 327; Sunward Elecs., 362 F.3d at 24. The statutory authorization for process with respect to any other claims—whether state or federal—would have to come either from a state long-arm statute or a different federal service-of-process provision. Otherwise, personal jurisdiction would be available, if at all, only under the narrow, discretionary doctrine of "pendent personal jurisdiction." See IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054, 1056 (2d Cir. 1993). 66 Case 17-1569, Document 424, 02/12/2018, 2234077, Page89 of 102 New York resident who served Massachusetts defendants under the nationwide service-of-process provision of the Securities Exchange Act of 1934. To be sure, this Court commented in passing that the defendants' residence within the United States was enough "to justify the federal government's exercise of power over them." Mariash, 496 F.2d at 1143. But the case fits easily within this Circuit's nationwide-contacts approach in federal-question cases because there, unlike here, the defendants' suit-related conduct all occurred inside the United States. And this Court has since treated Mariash as addressing specific personal jurisdiction. See In re Magnetic Audiotape Antitrust Litig., 334 F.3d at 207 (citing Mariash to support a nationwide-contacts approach); Tex. Trading & Milling Corp. v. Fed. Republic of Nigeria, 647 F.2d 300, 314 (2d Cir. 1981) (same), overruled on other grounds by Frontera Res. Azer. Corp. v. State Oil Co. of Azer. Republic, 582 F.3d 393 (2d Cir. 2009). The Supreme Court has "declined to stretch general jurisdiction beyond" the state-based territorial "limits traditionally recognized." Daimler, 134 S. Ct. at 757- 58. Instead, since International Shoe, it has "increasingly trained on. . . specific jurisdiction." Id. at 758. This case, with its unusual jurisdictional allegations, is not the place to entertain a sweeping new form of federal general personal jurisdiction. If this Court elects to address plaintiffs' novel argument, it should hold that Daimler's rule—under which a defendant is subject to claims unrelated to 67 Case 17-1569, Document 424, 02/12/2018, 2234077, Page90 of 102 its forum contacts only in those States where it is "at home"—similarly limits a federal court's power to hear claims unrelated to the defendant's contacts with the United States to those federal judicial districts that sit in the State where the defendant is incorporated or has its principal place of business. IV. DEFENDANTS HAVE NOT FORFEITED, MUCH LESS WAIVED, THEIR PERSONAL-JURISDICTION DEFENSES. Three sets of plaintiffs—the over-the-counter plaintiffs, the bondholder plaintiffs, and certain non-class plaintiffs—argue that certain defendants forfeited their personal-jurisdiction defenses against their claims. The District Court soundly rejected those contentions, SPA32-37, and that conclusion is reviewed here only for abuse of discretion, see Hamilton, 197 F.3d at 60. To "forfeit a personal-jurisdiction defense, a defendant must give a plaintiff a reasonable expectation that it will defend the suit on the merits or must cause the court to go to some effort that would be wasted if personal jurisdiction is later found lacking." Corporación Mexicana de Mantenimiento Integral, S. de R.L. de C.V. v. Pemex-Exploración y Producción, 832 F.3d 92, 102 (2d Cir. 2016) (internal quotation marks omitted). Neither of those things happened here. Plaintiffs concede (Br. 73 n.13) that the relevant defendants' specific personal jurisdictional defenses were not available until Daimler and Gucci narrowed the scope of general personal jurisdiction. See Gucci, 768 F.3d at 135-36. That was after the antitrust claims at issue here had been dismissed on the merits 68 Case 17-1569, Document 424, 02/12/2018, 2234077, Page91 of 102 by the District Court, after plaintiffs had appealed that ruling to this Court, and after this Court had dismissed plaintiffs' appeal for lack of jurisdiction in Gelboim I. At bottom, then, plaintiffs' argument is that certain defendants forfeited their personal-jurisdictional defenses by defending, in an appeal taken by plaintiffs, a judgment on the merits handed down before those defenses became available. That breathtaking proposition would apparently have required defendants to refrain from filing a responsive brief in Gelboim in order to preserve their rights. That cannot be the law. Over-the-Counter Plaintiffs. Defendants in the over-the-counter action asserted their personal-jurisdiction defenses against the over-the-counter plaintiffs as soon as they became available. Some of those plaintiffs' claims remained pending before the District Court after Daimler. Defendants moved to dismiss those claims for lack of personal jurisdiction. ECF No. 743. Defendants already dismissed from the over-the-counter action expressly preserved their defenses. ECF No. 966-1 at 4 n.8. Other actions had already been dismissed by the time Daimler was decided. Defendants advised this Court in the Gelboim II briefing on remand from the Supreme Court that they intended to pursue their newly available personal-jurisdiction defenses if those claims returned to the District Court. See Joint Br. for Defs.-Appellees at 38 n.23, Gelboim II, 823 F.3d 759 (No. 13-3565), ECF No. 464; see also Defs.-Appellees' Mot. to Consolidate at 5 n.4, Gelboim II, 69 Case 17-1569, Document 424, 02/12/2018, 2234077, Page92 of 102 823 F.3d 759 (No. 13-3565), ECF No. 221 (preserving personal-jurisdiction defenses). The over-the-counter plaintiffs nonetheless argue (Br. 70) that participating in the Gelboim II proceedings forfeited defendants' personal-jurisdiction defenses as to their action. But those plaintiffs cannot have held a reasonable expectation that defendants meant to forgo their personal-jurisdiction defenses after reading defendants' Gelboim II brief. And defendants' brief served to put this Court on notice of the possibility of a later dismissal for lack of personal jurisdiction. This Court's reasonable decision to reach the merits anyway served judicial economy and avoided the needless waste of judicial resources. Cf. Chevron Corp. v. Naranjo, 667 F.3d 232, 246 n.17 (2d Cir. 2012) (explaining that judicial economy is served by addressing an argument common to all defendants (whether the plaintiffs stated a claim) before an argument common to only some defendants (personal jurisdiction)). After all, the question of personal jurisdiction would have been moot had this Court affirmed LIBOR I. Bondholder Plaintiffs. Defendants in the bondholder action also asserted their personal-jurisdiction defenses against the bondholder plaintiffs as soon as possible. Because LIBOR I had dismissed all of the bondholder plaintiffs' claims, defendants could not have moved to dismiss for lack of personal jurisdiction before the District Court while Gelboim was pending before the Supreme Court. As soon 70 Case 17-1569, Document 424, 02/12/2018, 2234077, Page93 of 102 as the appeal returned to this Court, defendants entered into an agreement with the bondholder plaintiffs that preserved their personal-jurisdiction defenses. ECF No. 1500-2. Despite this agreement, the bondholder plaintiffs argue (Br. 72) that defendants' defense of Gelboim I before the Supreme Court forfeited their personal-jurisdiction defenses as to the bondholder action. That argument verges on the absurd. No reasonable plaintiff could have concluded that defendants meant to waive their jurisdictional defenses by confining their arguments in the Supreme Court to the question on which the Court actually granted certiorari, rather than a totally irrelevant (and potentially moot) issue of personal jurisdiction. Defendants' litigation of a question of appellate jurisdiction in a case where all claims had been dismissed could not create a reasonable expectation that defendants would not raise a newly available, alternative defense if plaintiffs prevailed on appeal. The bondholder plaintiffs make a similar argument (Br. 74-75) about defendants' opposition to their Rule 54(b) motion after Gelboim. But defendants' opposition to that motion signaled only that they did not think plaintiffs' appeal should be heard until the other plaintiffs' claims were resolved. The bondholder plaintiffs cannot have reasonably interpreted that opposition as a signal that defendants intended to give up any defenses. And mentioning the possibility of future personal-jurisdiction defenses would have been entirely irrelevant to the 71 Case 17-1569, Document 424, 02/12/2018, 2234077, Page94 of 102 District Court's Rule 54(b) decision whether to enter a partial final judgment. The bondholder plaintiffs' case was over and could not be reopened for defendants to move to dismiss the already-dismissed claims. SPA35 n.22.20 Non-Class Plaintiffs. Nor did UBS forfeit its personal-jurisdiction defense against three of the non-class plaintiffs' claims. Plaintiffs criticize UBS (Br. 75) for failing to raise this defense in its first motion to dismiss, but that motion was directed to plaintiffs' state-law claims. UBS separately moved to dismiss plaintiffs' antitrust claims for lack of personal jurisdiction at the first opportunity. Regardless, even if UBS could have raised its defense earlier, its failure to do so could not have prejudiced plaintiffs or wasted the District Court's effort because defendants jointly moved to dismiss for lack of personal jurisdiction, plaintiffs jointly responded, and the District Court addressed their claims in a single order. Cf. Hamilton, 197 F.3d at 61 ("In assessing whether forfeiture. . . occurred. . ., we consider all of the relevant circumstances."). Plaintiffs' cases (Br. 74) are easily distinguished. Four declined to find forfeiture where a personal-jurisdiction defense arose while the case was pending before the district court and the defendant moved to dismiss. That is just what 20 The BBA, which is not a party to the over-the-counter action or the bondholder action, moved to dismiss for lack of personal jurisdiction in its first Rule 12 motion, ECF No. 743, and has consistently asserted its personal- jurisdiction defenses in this litigation. 72 Case 17-1569, Document 424, 02/12/2018, 2234077, Page95 of 102 happened here. Defendants moved to dismiss those claims pending in the District Court after Daimler. And they moved to dismiss those claims on appeal when Daimler came down as soon as they returned to the District Court from an appeal taken by plaintiffs themselves. As the appellees, defendants did not forfeit their personal-jurisdiction defenses by not raising a new, alternative ground for affirmance that this Court would not have reached. See Singleton v. Wulff, 428 U.S. 106, 120 (1976) ("It is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below."); cf. Gucci, 768 F.3d at 138 (remanding for consideration of appellant's newly available personal-jurisdiction defense). The District Court was well within its discretion to reject plaintiffs' meritless contention. 73 Case 17-1569, Document 424, 02/12/2018, 2234077, Page96 of 102 CONCLUSION For these reasons, the District Court's judgment regarding plaintiffs' failure to sufficiently allege personal jurisdiction should be affirmed. Respectfully submitted, /s/ Mary Beth Forshaw /s/ Neal Kumar Katyal Mary Beth Forshaw Neal Kumar Katyal Paul C. Gluckow /s/ Eugene A. Sokoloff Alan C. Turner Eugene A. Sokoloff SIMPSON THACHER & Kirti Datla* BARTLETT LLP Allison K. Turbiville 425 Lexington Avenue HOGAN LOVELLS US LLP New York, New York 10017 555 13th Street NW Telephone: (212) 455-2000 Washington, D.C. 20004 mforshaw@stblaw.com Telephone: (202) 637-5600 Abram J. Ellis neal.katyal@hoganlovells.com 900 G Street NW eugene.sokoloff@hoganlovells.com Washington, D.C. 20001 Marc J. Gottridge Telephone: (202) 636-5500 Lisa J. Fried Attorneys for Defendants-Appellees Benjamin A. Fleming JPMorgan Chase & Co. and 875 Third Avenue JPMorgan Chase Bank, N.A. New York, New York 10022 Attorneys for Defendants-Appellees Lloyds Banking Group plc and HBOS plc * Admitted only in Texas; supervised by members of the firm. 74 Case 17-1569, Document 424, 02/12/2018, 2234077, Page97 of 102 /s/ Arthur J. Burke /s/ Andrew A. Ruffino Arthur J. Burke Andrew A. Ruffino Paul S. Mishkin COVINGTON & BURLING LLP Adam G. Mehes The New York Times Building DAVIS POLK & WARDWELL LLP 620 Eighth Avenue 450 Lexington Avenue New York, New York 10018 New York, New York 10017 Telephone: (212) 841-1000 Telephone: (212) 450-4000 aruffino@cov.com arthur.burke@davispolk.com Alan M. Wiseman Attorneys for Defendants-Appellees Thomas A. Isaacson Bank of America Corporation and Bank Andrew D. Lazerow of America, N.A. 850 Tenth Street NW Washington, D.C. 20001 /s/ Daryl A. Libow Telephone: (202) 662-6000 Daryl A. Libow Lev Dassin Christopher M. Viapiano Jonathan S. Kolodner SULLIVAN & CROMWELL LLP CLEARY GOTTLIEB STEEN & 1700 New York Avenue NW, Suite 700 HAMILTON LLP Washington, D.C. 20006 One Liberty Plaza Telephone: (202) 956-7500 New York, New York 10006 libowd@sullcrom.com Telephone: (212) 225-2000 Attorneys for Defendant-Appellee ldassin@cgsh.com The Bank of Tokyo-Mitsubishi UFJ, Ltd. Attorneys for Defendants-Appellees Citibank, N.A. and Citigroup Inc. 75 Case 17-1569, Document 424, 02/12/2018, 2234077, Page98 of 102 /s/ David R. Gelfand /s/ David H. Braff David R. Gelfand David H. Braff Robert C. Hora Yvonne S. Quinn Mark D. Villaverde Jeffrey T. Scott Jonathan Ohring Matthew J. Porpora MILBANK, TWEED, HADLEY & SULLIVAN & CROMWELL LLP MCCLOY LLP 125 Broad Street 28 Liberty Street New York, New York 10004 New York, New York 10005 Telephone: (212) 558-4000 Telephone: (212) 530-5000 braffd@sullcrom.com dgelfand@milbank.com Jonathan D. Schiller Attorneys for Defendant-Appellee Leigh M. Nathanson Coöperatieve Rabobank U.A. (f/k/a Amos Friedland Coöperatieve Centrale Raiffeisen- BOIES SCHILLER FLEXNER LLP Boerenleenbank B.A.) 575 Lexington Avenue New York, New York 10022 /s/ Herbert S. Washer Telephone: (212) 446-2300 Herbert S. Washer jschiller@bsfllp.com Elai Katz Michael Brille Joel Kurtzberg 1401 New York Avenue NW Jason Hall Washington, D.C. 20005 Adam Mintz CAHILL GORDON & REINDEL LLP Attorneys for Defendants-Appellees 80 Pine Street Barclays PLC, Barclays Bank PLC, and New York, New York 10005 Barclays Capital Inc. Telephone: (212) 701-3000 hwasher@cahill.com /s/ Christopher M. Paparella Christopher M. Paparella Attorneys for Defendants-Appellees Marc A. Weinstein Credit Suisse Group AG, Credit Suisse HUGHES HUBBARD & REED LLP AG, Credit Suisse International, and One Battery Park Plaza Credit Suisse (USA), Inc. New York, New York 10004 Telephone: (212) 837-6000 chris.paparella@hugheshubbard.com Attorneys for Defendants-Appellees Portigon AG (f/k/a WestLB AG) and Westdeutsche ImmobilienBank AG 76 Case 17-1569, Document 424, 02/12/2018, 2234077, Page99 of 102 /s/ Moses Silverman /s/ Gregory T. Casamento Moses Silverman Gregory T. Casamento Aidan Synnott R. James DeRose III PAUL, WEISS, RIFKIND, WHARTON LOCKE LORD LLP & GARRISON LLP 3 World Financial Center 1285 Avenue of the Americas New York, New York 10281 New York, New York 10019 Telephone: (212) 812-8325 Telephone: (212) 373-3000 gcasamento@lockelord.com msilverman@paulweiss.com Roger B. Cowie Attorneys for Defendant-Appellee 2200 Ross Avenue, Suite 2800 Deutsche Bank AG Dallas, Texas 75201 J. Matthew Goodin /s/ Eric J. Stock Julia C. Webb Eric J. Stock 111 South Wacker Drive Jefferson E. Bell Chicago, Illinois 60606 GIBSON, DUNN & CRUTCHER LLP 200 Park Avenue Attorneys for Defendants-Appellees New York, New York 10166 HSBC Holdings plc, HSBC Bank plc, Telephone: (212) 351-4000 and HSBC Bank USA, N.A. (except in estock@gibsondunn.com City of Houston, No. 17-2376) Attorneys for Defendant-Appellee /s/ Donald R. Littlefield UBS AG Donald R. Littlefield Michael A. Rodriguez /s/ Andrew W. Stern BALLARD & LITTLEFIELD, LLP Andrew W. Stern 3700 Buffalo Speedway, Suite 250 Alan M. Unger Houston, Texas 77098 Tom A. Paskowitz Telephone: (713) 403-6400 SIDLEY AUSTIN LLP dlittlefield@ballardlittlefield.com 787 Seventh Avenue New York, New York 10019 Attorneys for Defendants-Appellees Telephone: (212) 839-5300 HSBC Holdings plc and HSBC Bank plc astern@sidley.com (in City of Houston, No. 17-2376) Attorneys for Defendant-Appellee The Norinchukin Bank 77 Case 17-1569, Document 424, 02/12/2018, 2234077, Page100 of 102 /s/ David S. Lesser /s/ Arthur W. Hahn David S. Lesser Arthur W. Hahn WILMER CUTLER PICKERING Christian T. Kemnitz HALE AND DORR LLP Brian J. Poronsky 250 Greenwich Street KATTEN MUCHIN ROSENMAN LLP New York, New York 10007 525 West Monroe Street Telephone: (212) 230-8800 Chicago, Illinois 60661 david.lesser@wilmerhale.com Telephone: (312) 902-5200 Attorneys for Defendants-Appellees arthur.hahn@kattenlaw.com The Royal Bank of Scotland Group plc Robert T. Smith and The Royal Bank of Scotland plc 2900 K Street NW, Suite 200 Washington, D.C. 20007 /s/ Robert G. Houck Attorneys for Defendants-Appellees Robert G. Houck Royal Bank of Canada and RBC Capital CLIFFORD CHANCE US LLP Markets, LLC 31 West 52nd Street New York, New York 10019 /s/ Steven Wolowitz Telephone: (212) 878-8000 Steven Wolowitz robert.houck@cliffordchance.com Henninger S. Bullock Attorneys for Defendants-Appellees Andrew J. Calica The Royal Bank of Scotland plc and MAYER BROWN LLP RBS Securities Inc. (f/k/a Greenwich 1221 Avenue of the Americas Capital Markets, Inc.) New York, New York 10020 Telephone: (212) 506-2500 /s/ Richard D. Owens swolowitz@mayerbrown.com Richard D. Owens Attorneys for Defendant-Appellee Jeff G. Hammel Société Générale LATHAM & WATKINS LLP 885 Third Avenue New York, New York 10022 Telephone: (212) 906-1200 richard.owens@lw.com Attorneys for Defendants-Appellees British Bankers' Association, BBA Enterprises Ltd., and BBA LIBOR Ltd. 78 Case 17-1569, Document 424, 02/12/2018, 2234077, Page101 of 102 CERTIFICATE OF COMPLIANCE 1. This brief complies with this Court's August 24, 2017 Order (17-1569 Doc. 137) because defendants' two principal briefs collectively contain fewer than 28,000 words. This brief contains 16,910 words, excluding the parts of the document exempted by Fed. R. App. 32(f). 2. This brief complies with the typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) and the typestyle requirements of Federal Rule of Appellate Procedure 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Office Word in Times New Roman 14-point font. /s/ Eugene A. Sokoloff Case 17-1569, Document 424, 02/12/2018, 2234077, Page102 of 102 CERTIFICATE OF SERVICE I certify that the foregoing Brief for Defendants-Appellees was filed with the Clerk using the appellate CM/ECF system on February 12, 2018. All counsel of record are registered CM/ECF users, and service will be accomplished by the CM/ECF system. /s/ Eugene A. Sokoloff

LETTER, on behalf of Appellee BBA Enterprises, Ltd., British Bankers' Association and BBA Libor, Ltd., <EDIT by Clerk's Office> RECEIVED. Service date 02/12/2018 by CM/ECF.[2234081] [17-1569] [Entered: 02/12/2018 11:54 PM]

Case 17-1569, Document 426, 02/12/2018, 2234081, Page1 of 1 Richard D. Owens 53rd at Third Direct Dial: 1.212.906.1396 885 Third Avenue richard.owens@lw.com New York, New York 10022-4834 Tel: +1.212.906.1200 Fax: +1.212.751.4864 www.lw.com FIRM / AFFILIATE OFFICES Barcelona Moscow Beijing Munich Boston New York Brussels Orange County Century City Paris February 12, 2018 Chicago Riyadh Dubai Rome Düsseldorf San Diego Frankfurt San Francisco Hamburg Seoul Hong Kong Shanghai Houston Silicon Valley London Singapore VIA ECF Los Angeles Tokyo Madrid Washington, D.C. Milan Catherine O'Hagan Wolfe Clerk of Court United States Court of Appeals for the Second Circuit Thurgood Marshall U.S. Courthouse 40 Foley Square New York, NY 10007 Re: In re LIBOR-Based Financial Instruments Antitrust Litigation, Nos. 17-1569(L), 17-2343(CON) Dear Ms. Wolfe: My firm represents Defendants-Appellees British Bankers' Association, BBA Enterprises Ltd., and BBA LIBOR Ltd. (collectively, the "BBA Defendants") in appeal number 17-2343, which has been consolidated with appeal number 17-1569 (lead case). Pursuant to Federal Rule of Appellate Procedure 28(i), I write to inform the Court that the BBA Defendants join in the Brief for Defendants-Appellees Regarding Personal Jurisdiction (Dkt. No. 424), which was filed on February 12, 2018 by Defendants-Appellees HBOS plc and Lloyds Banking Group plc in appeal number 17-1569. Respectfully, /s/ Richard D. Owens Richard D. Owens of LATHAM & WATKINS LLP cc: All Counsel of Record (via ECF)

LETTER, on behalf of Appellee RBC Capital Markets LLC and Royal Bank of Canada, <EDIT by Clerk's Office> RECEIVED. Service date 02/13/2018 by CM/ECF.[2234788] [17-1569] [Entered: 02/13/2018 01:10 PM]

Case 17-1569, Document 427, 02/13/2018, 2234788, Page1 of 1 2900 K Street NW North Tower - Suite 200 Washington, DC 20007-5118 202.625.3500 tel www.kattenlaw.com.. ROBERT T. SMITH robert.smith1@kattenlaw.com 202.625.3616 direct CM/ECF FILING 202.339.6059 fax Feburary 13, 2017 Ms. Catherine O'Hagan Wolfe Clerk of the Court United States Court of Appeals for the Second Circuit Thurgood Marshall United States Courthouse 40 Foley Square New York, NY 10007 Re: In re LIBOR-Based Financial Instruments Antitrust Litigation, Nos. 17-1569 et al. Dear Ms. Wolfe: Along with my colleagues at Katten Muchin Rosenman LLP, I represent the Royal Bank of Canada and RBC Capital Markets LLC (collectively, "RBC Defendants") in the above-referenced, consolidated appeals. Consistent with Rule 28(i) of the Federal Rules of Appellate Procedure, I write to inform the Court that the RBC Defendants join in the Brief for Defendants-Appellees Regarding Personal Jurisdiction (Dkt. No. 424) and the Brief for Defendants-Appellees Regarding Antitrust Standing (Dkt. No. 425), both of which were filed by Defendants-Appellees HBOS plc and Lloyds Banking Group plc on February 12, 2018. Very truly yours, /s/ Robert T. Smith Robert T. Smith AUSTIN CENTURY CITY CHARLOTTE CHICAGO HOUSTON IRVING LOS ANGELES NEW YORK ORANGE COUNTY SAN FRANCISCO BAY AREA SHANGHAI WASHINGTON, DC LONDON: KATTEN MUCHIN ROSENMAN UK LLP A limited liability partnership including professional corporations

LETTER, on behalf of Appellee Credit Suisse Group AG, Credit Suisse AG, Credit Suisse International and Credit Suisse (USA), Inc., <EDIT by Clerk's Office> RECEIVED. Service date 02/13/2018 by CM/ECF.[2234898] [17-1569] [Entered: 02/13/2018 02:39 PM]

Case 17 - 1569, Document 428, 02 / 13 / 2018, 2234898, Pagel of 2 CAHILL GORDON & REINDEL LLP EIGHTY PINE STREET NEW YORK, NY 10005 - 1702 TELEPHONE: (212) 701 - 3000 www. CAHILL. COM 1990 K STREET, N. W. WASHINGTON, DC 20o06 - 1181 (202) 862 - 89oo L. HOWARD ADAMS ROBERT A, ALESSI HELENE R. BANKS ANIRUDH BANSAL DAVID L. BARASH LANDIS C. BEST BRADLEY J. BONDI BROCKTON B. BOSSON KEVIN J. BURKE JAMES J. CLARK SEAN M. DAVIS STUART G. DOWNING ADAM M. DWORKIN ANASTASIA EFIMOVA JENNIFER B. EZRING JOAN MURTAGH FRANKEL JONATHAN J. FRANKEL PIERRE M. GENTIN CHARLES A. GILMAN ARIEL GOLDMAN JASON M. HALL WILLIAM M. HARTNETT NOLA B. HELLER CRAIG M. HOROWITZ DOUGLAS S. HOROWITZ TIMOTHY B. HOWELL DAVID G. JANUSZEWSKI ELAL KATZ BRIAN S. KELLEHER RICHARD KELLY CHÉRIE R. KISER * JOEL KURTZBERG TED B. LACEY MARC R. LASHBROOK ALIZA R. LEVINE JOEL H. LEVITIN GEOFFREY E. LIEBMANN BRIANT, MARKLEY WILLIAM J. MILLER NOAH B. NEWITZ MICHAEL J. OHLER DAVID R. OWEN JOHN PAPACHRISTOS LUIS R. PENALVER KIMBERLY PETILLO - DÉCOSSARD SHEILA C. RAMESH MICHAEL W. REDDY OLEG REZZY JAMES ROBINSON THORN ROSENTHAL TAMMY L. ROY JONATHAN A. SCHAFFZIN JOHN SCHUSTER CAHILL GORDON & REINDEL (UK) LLP 24 MONUMENT STREET LONDON EC3R BAJ + 44 (O) 2O792o 98oo MICHAEL A. SHERMAN DARREN SILVER JOSIAH M. SLOTNICK RICHARD A. STIEGLITZ JR. SUSANNA M. SUH ΑΝΤΟΝΥ Κ . ΤΑΜΑ JONATHAN D. THIER SEAN P. TONOLLI * JOHN A. TRIPODORO GLENN J. WALDRIP, JR. HERBERT S. WASHER MICHAEL B. WEISS S. PENNY WINDLE DAVID WISHENGRAD COREY WRIGHT JOSHUA M. ZELIG DANIEL J. ZUBKOFF WRITER'S DIRECT NUMBER * ADMITTED IN DC ONLY (212) 701 - 3120 February 13, 2018 Re: In re LIBOR - Based Financial Instruments Antitrust Litigation, No. 17 - 1569 (L) and consolidated cases Dear Ms. Wolfe: We represent Defendants - Appellees Credit Suisse Group AG, Credit Suisse AG, Credit Suisse International, and Credit Suisse (USA), Inc. (the " Credit Suisse Defendants - Appellees") in the above - referenced appeal. We write to inform the Court that, pursuant to Federal Rule of Appellate Procedure 28 (i), the Credit Suisse Defendants - Appellees hereby join the Brief for Defendants - Appellees Regarding Personal Jurisdiction filed as Document 424, on February 12, 2018, and Credit Suisse Group AG hereby joins the Brief for Defendants - Appellees Regarding Antitrust Standing filed as Document 425, on February 12, 2018. Sincerely, (Jdel Kurtzberg Ms. Catherine O ' Hagan Wolfe Clerk of the Court United States Court of Appeals for the Second Circuit Thurgood MarshallU.S. Courthouse 40 Foley Square New York, New York 10007 AvsvwavskyMARRAS Case 17 - 1569, Document 428, 02 / 13 / 2018, 2234898, Page2 of 2 CAHILL GORDON & REINDEL LLP 2 - BY ECF cc: Counsel of Record FESTGESTEROISTOON

LETTER, on behalf of Appellee JPMorgan Chase & Co. and JPMorgan Chase Bank, N.A., <EDIT by Clerk's Office> RECEIVED. Service date 02/13/2018 by CM/ECF.[2235052] [17-1569] [Entered: 02/13/2018 03:36 PM]

Case 17-1569, Document 429, 02/13/2018, 2235052, Page1 of 1 Simpson Thacher & Bartlett LLP 425 LEXINGTON AVENUE N EW YORK, NY 10017-3954 T ELEP H ONE: +1-212-455-2000 FAC SI M ILE: +1-212-455-2502 Direct Dial Number E-mail Addr ess 212- 455- 3040 tric e@s tblaw .com BYECF February 13, 2018 Catherine O'Hagan Wolfe Clerk of the Court United States Court of Appeals for the Second Circuit Thurgood Marshall Courthouse 40 Foley Square New York, New York 10007 Re: In re Libor-Based Financial Instruments Antitrust Litigation, No. 17-1569 (L). 17-1915, 17-1989, 17-2056. 17-2343, 17-2347, 17-2351, 17-2352. 17-2360. 17-2376, 17-2381. 17-2383, 17-2413 Dear Ms. Wolfe: Simpson Thacher & Bartlett LLP ("Simpson Thacher") represents Defendants-Appellees JPMorgan Chase & Co. and JPMorgan Chase Bank, N.A. (collectively "JPMorgan") in the above-captioned appeals. I write to advise the Court that I have retired as a partner from Simpson Thacher. Accordingly, I respectfully request the Court remove my appearance as lead counsel for JPMorgan and designate my former partner Mary Beth Forshaw, who appeared as additional counsel on November 13, 2017, as lead counsel for JPMorgan. Simpson Thacher will continue to represent JPMorgan and therefore my withdrawal will not prejudice these appeals or any of the parties involved. cc: Counsel of Record (by ECF) BEIJ I NG HONG KONG HOUST ON LONDON LOS ANGELES PAL O .-\.LTO S.-\.0 P.-\.ULO SEOUL TOKYO \\'ASHlNGTON, D .C

LETTER, on behalf of Appellee Bank of America Corporation and Bank of America, N.A., <EDIT by Clerk's Office> RECEIVED. Service date 02/13/2018 by CM/ECF.[2235059] [17-1569] [Entered: 02/13/2018 03:38 PM]

Case 17-1569, Document 430, 02/13/2018, 2235059, Page1 of 1 450 LEXINGTON AVENUE N O R TH E R N C A L IF O R N I A NEW YORK, NY 10017 W A S H IN G T O N, D.C. 212 450 4000 SÃO PAULO FAX 212 701 5800 LONDON PARIS MADRID TOKYO A R T H U R J. B U R K E BEIJING 212 450 4352 HONG KONG February 13, 2018 Re: In re LIBOR-Based Financial Instruments Antitrust Litigation, Nos. 17-1569(L), 17-1989(CON), 17-2343(CON), 17-2347(CON), 17-2360(CON), 17-2376(CON), 17-2383(CON), 17-2413(CON) Via ECF Catherine O'Hagan Wolfe Clerk of Court United States Court of Appeals for the Second Circuit Thurgood Marshall U.S. Courthouse 40 Foley Square New York, NY 10007 Dear Ms. Wolfe: My firm represents Defendants-Appellees Bank of America Corporation and Bank of America, N.A. (collectively, the "Bank of America Defendants") in appeal numbers 17-1989, 17-2343, 17-2347, 17-2360, 17-2376, 17-2383, and 17-2413, which have been consolidated with appeal number 17-1569 (lead case). Pursuant to Federal Rule of Appellate Procedure 28(i), I write to inform the Court that the Bank of America Defendants join in the Brief for Defendants- Appellees Regarding Personal Jurisdiction (Dkt. No. 424) and the Brief for Defendants- Appellees Regarding Antitrust Standing (Dkt. No. 425), which were filed on February 12, 2018 by Defendants-Appellees HBOS plc and Lloyds Banking Group plc in appeal number 17-1569. Respectfully yours, /s/ Arthur J. Burke Arthur J. Burke cc: Counsel for all parties via ECF

LETTER, on behalf of Appellee HSBC Bank PLC and HSBC Holdings PLC, <EDIT by Clerk's Office> RECEIVED. Service date 02/13/2018 by CM/ECF.[2235077] [17-1569] [Entered: 02/13/2018 03:44 PM]

Case 17-1569, Document 431, 02/13/2018, 2235077, Page1 of 1 111 South Wacker Drive Chicago, IL 60606 Telephone: 312-443-0700 Fax: 312-443-0336 www.lockelord.com J. Matthew Goodin Direct Telephone: 312-443-0472 Direct Fax: 312-896-6472 Cellular: 312-545-5523 jmgoodin@lockelord.com February 13, 2018 VIA ECF Catherine O'Hagan Wolfe Clerk of Court United States Court of Appeals for the Second Circuit Thurgood Marshall U.S. Courthouse 40 Foley Square New York, New York 10007 Re: In re LIBOR-Based Financial Instruments Antitrust Litigation, Nos. 17-1569(L), 17-1915(CON), 17-2056(CON), 17-2343(CON), 17-2360(CON), 17-2383(CON), 17-2413(CON) Dear Ms. Wolfe: My firm represents HSBC Holdings plc, HSBC Bank plc, and HSBC Bank USA, N.A. (the "HSBC Defendants") in the above-referenced, consolidated appeal proceedings. Pursuant to Federal Rule of Appellate Procedure 28(i), I write to inform the Court that the HSBC Defendants join in the Brief for Defendants-Appellees Regarding Personal Jurisdiction (Dkt. No. 424), and HSBC Holdings plc and HSBC Bank plc join in the Brief for Defendants-Appellees Regarding Antitrust Standing (Dkt. No. 425), both of which were filed on February 12, 2018. Please note that my firm does not represent HSBC Holdings plc or HSBC Bank plc in appeal number 17-2376, which has also been consolidated with the lead case, number 17-1569. Counsel for HSBC Holdings plc and HSBC Bank plc in that proceeding will file a separate notice pursuant to Rule 28(i). Respectfully submitted, LOCKE LORD LLP /s/ J. Matthew Goodin JMG:k cc: Counsel of Record via ECF Atlanta, Austin, Chicago, Dallas, Hong Kong, Houston, London, Los Angeles, New Orleans, New York, Sacramento, San Francisco, Washington DC 67938417v.1

LETTER, on behalf of Appellee Deutsche Bank AG, <EDIT by Clerk's Office> RECEIVED. Service date 02/13/2018 by CM/ECF.[2235085] [17-1569] [Entered: 02/13/2018 03:47 PM]

Case 17-1569, Document 432, 02/13/2018, 2235085, Page1 of 1 212-373-3213 212-492-0213 asynnott@paulweiss.com February 13, 2018 Via ECF The Honorable Catherine O'Hagan Wolfe Clerk of the Court United States Court of Appeals for the Second Circuit Thurgood Marshall United States Courthouse 40 Foley Square New York, NY 10007 In re LIBOR-Based Financial Instruments Antitrust Litigation, No. 17-1569 (L) and consolidated cases Dear Ms. Wolfe: We are counsel for Defendant-Appellee Deutsche Bank AG in the above- referenced consolidated appeals. Pursuant to Federal Rule of Appellate Procedure 28(i), we write to inform the Court that Deutsche Bank AG joins the Brief for Defendants- Appellees Regarding Personal Jurisdiction (Dkt. No. 424) and the Brief for Defendants- Appellees Regarding Antitrust Standing (Dkt. No. 425), which were filed by Defendants- Appellees HBOS plc and Lloyds Banking Group plc on February 12, 2018. Respectfully submitted, /s/ Aidan Synnott Aidan Synnott cc: Counsel of Record (by ECF)

LETTER, on behalf of Appellee The Bank of Tokyo-Mitsubishi UFJ, Ltd., <EDIT by Clerk's Office> RECEIVED. Service date 02/13/2018 by CM/ECF.[2235223] [17-1569] [Entered: 02/13/2018 04:43 PM]

Case 17-1569, Document 434, 02/13/2018, 2235223, Page1 of 1 TELEPHONE: 1-202-956-7500 FACSIMILE: 1-202-293-6330 1700 New York Avenue, N.W. WWW.SULLCROM.COM Suite 700 Washington, D.C. 20006-5215 ______________________ NEW YORK • LOS ANGELES • PALO ALTO FRANKFURT • LONDON • PARIS BEIJING • HONG KONG • TOKYO MELBOURNE • SYDNEY February 13, 2018 Via ECF Ms. Catherine O'Hagan Wolfe, Clerk of Court, U.S. Court of Appeals for the Second Circuit, Thurgood Marshall U.S. Courthouse, 40 Foley Square, New York, New York 10007. Re: In re Libor-Based Financial Instruments Antitrust Litig., Nos. 17-1569 (L), 17-1915, 17-1989, 17-2056, 17-2343, 17-2351, 17-2376, 17-2381, 17-2383, and 17-2413. Dear Ms. Wolfe: We represent Defendant-Appellee The Bank of Tokyo-Mitsubishi UFJ, Ltd. ("BTMU") in the above-referenced appeals. We write to inform the Court that, pursuant to Federal Rule of Appellate Procedure 28(i), BTMU hereby joins the Brief for Defendants-Appellees Regarding Personal Jurisdiction (Appeal No. 17-1569 (L), Dkt. No. 424) and the Brief for Defendants-Appellees Regarding Antitrust Standing (Appeal No. 17-1569 (L), Dkt. 425), which were filed on February 12, 2018. Respectfully, /s/ Christopher M. Viapiano Christopher M. Viapiano SULLIVAN & CROMWELL LLP cc: All counsel of record (via ECF)

LETTER, on behalf of Appellee Citibank, N.A. and Citigroup Inc., <EDIT by Clerk's Office> RECEIVED. Service date 02/13/2018 by CM/ECF.[2235286] [17-1569] [Entered: 02/13/2018 05:42 PM]

Case 17-1569, Document 435, 02/13/2018, 2235286, Page1 of 1 February 13, 2018 VIA ECF Catherine O'Hagan Wolfe Clerk of Court United States Court of Appeals for the Second Circuit Thurgood Marshall U.S. Courthouse 40 Foley Square New York, New York 10007 Re: In re LIBOR-Based Financial Instruments Antitrust Litigation, Nos. 17-1569(L), 17-2343(CON), 17-2347(CON), 17-2351(CON), 17-2360(CON), 17-2376(CON), 17-2381(CON), 17-2383(CON), 17-2413(CON), 17-1915(CON), 17-1989(CON) Dear Ms. Wolfe: My firm represents Defendants-Appellees Citigroup Inc. and Citibank, N.A., (together, "Citi"), in Appeal Nos. 17-2343, 17-2347, 17-2351, 17-2360, 17-2376, 17-2381, 17-2383, 17- 2413, 17-1915, and 17-1989, which have been consolidated with appeal number 17-1569 (lead case). Pursuant to Federal Rule of Appellate Procedure 28(i), I write to inform the Court that Citi joins in the Brief for Defendants-Appellees Regarding Personal Jurisdiction (Dkt. No. 424) and in the Brief for Defendants-Appellees Regarding Antitrust Standing (Dkt. No. 425), which were filed on February 12, 2018 by Defendants-Appellees HBOS plc and Lloyds Banking Group plc in appeal number 17-1569. Respectfully, /s/ Andrew A. Ruffino Andrew A. Ruffino cc: All Counsel of Record (via ECF)

FRAP 28(j) LETTER, dated 02/13/2018, on behalf of Appellee The Norinchukin Bank, RECEIVED. Service date 02/13/2018 by CM/ECF.[2235302] [17-1569] [Entered: 02/13/2018 06:10 PM]

Case 17-1569, Document 436, 02/13/2018, 2235302, Page1 of 1 SIDLEY AUSTIN LLP 787 SEVENTH AVENUE NEW YORK, NY 10019 +1 212 839 5300 +1 212 839 5599 FAX ASTERN@SIDLEY.COM AMERICA • ASIA PACIFIC • EUROPE +1 212 839 5397 February 13, 2018 Catherine O'Hagan Wolfe, Clerk of Court United States Court of Appeals for the Second Circuit Thurgood Marshall United States Courthouse 40 Foley Square New York, New York 10007 Re: In re LIBOR-Based Financial Instruments Antitrust Litigation, Docket Nos. 17- 1569(L); 17-1915; 17-1989; 17-2056; 17-2343; 17-2376; 17-2383; 17-2413 Dear Ms. Wolfe: We represent Appellee The Norinchukin Bank ("Norinchukin") in appeal nos. 17-1915; 17-1989; 17-2056; 17-2343; 17-2376; 17-2383; and 17-2413, which have been consolidated with appeal no. 17-1569(L) by order dated August 24, 2017 in In re LIBOR-Based Financial Instruments Antitrust Litigation, no. 17-1569 [ECF no. 141]. Pursuant to Federal Rule of Appellate Procedure 28(i), I write to inform the Court that Norinchukin joins in the briefs filed February 12, 2018 by HBOS plc and Lloyds Banking Group plc (Dkt. Nos. 424 and 425) in appeal no. 17-1569(L). Respectfully submitted, /s/ Andrew W. Stern Andrew W. Stern cc: All Counsel of Record (by ECF) Sidley Austin (NY) LLP is a Delaware limited liability partnership doing business as Sidley Austin LLP and practicing in affiliation with other Sidley Austin partnerships.

LETTER, on behalf of Appellee Cooperatieve Rabobank U.A., <EDIT by Clerk's Office> RECEIVED. Service date 02/13/2018 by CM/ECF.[2235312] [17-1569] [Entered: 02/13/2018 07:10 PM]

Case 17-1569, Document 437, 02/13/2018, 2235312, Page1 of 1 MILBANK, TWEED, HADLEY & MCˍ CLOY LLP 28 LIBERTY STREET LOS ANGELES BEIJING 213-892-4000 NEW YORK, N.Y. 10005-1413 8610-5969-2700 FAX: 213-629-5063 FAX: 8610-5969-2707 212-530-5000 WASHINGTON, D.C. HONG KONG 202-835-7500 852-2971-4888 FAX: 212-530-5219 FAX: 202-835-7586 FAX: 852-2840-0792 LONDON SEOUL 44-20-7615-3000 David R. Gelfand 822-6137-2600 FAX: 44-20-7615-3100 Partner FAX: 822-6137-2626 DIRECT DIAL NUMBER 212-530-5520 FRANKFURT E-MAIL: dgelfand@milbank.com SINGAPORE 49-69-71914-3400 65-6428-2400 FAX: 49-69-71914-3500 FAX: 65-6428-2500 MUNICH TOKYO 49-89-25559-3600 February 13, 2018 813-5410-2801 FAX: 49-89-25559-3700 FAX: 813-5410-2891 SÃO PAULO 55-11-3927-7700 FAX: 55-11-3927-7777 BY ECF Catherine O'Hagan Wolfe Clerk of Court United States Court of Appeals for the Second Circuit Thurgood Marshall U.S. Courthouse 40 Foley Square New York, NY 10007 Re: In re LIBOR-Based Financial Instruments Antitrust Litigation, No. 17-1569 (L) and consolidated cases Dear Ms. O'Hagan Wolfe: We represent Defendant-Appellee Coöperatieve Rabobank U.A. (f/k/a Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A.) ("Rabobank") in the above-referenced consolidated appeals. Pursuant to Federal Rule of Appellate Procedure 28(i), we write to inform the Court that Rabobank joins the Brief for Defendants-Appellees Regarding Personal Jurisdiction (Dkt. No. 424) and the Brief for Defendants-Appellees Regarding Antitrust Standing (Dkt. No. 425), which were filed by Defendants-Appellees HBOS plc and Lloyds Banking Group plc on February 12, 2018. Very truly yours, /s/ David R. Gelfand David R. Gelfand cc: All Counsel of Record (by ECF)

LETTER, on behalf of Appellee UBS AG and UBS Limited, <EDIT by Clerk's Office> RECEIVED. Service date 02/13/2018 by CM/ECF.[2235316] [17-1569] [Entered: 02/13/2018 07:56 PM]

Case 17-1569, Document 438, 02/13/2018, 2235316, Page1 of 1 Eric J. Stock Direct: +1 212.351.2301 Fax: +1 212.716.0801 EStock@gibsondunn.com February 13, 2018 VIA ECF Catherine O'Hagan Wolfe Clerk of Court U.S. Court of Appeals for the Second Circuit Thurgood Marshall U.S. Courthouse 40 Foley Square New York, N.Y. 10007 Re: In re LIBOR-Based Financial Instruments Antitrust Litigation, Nos. 17-1569(L), 17-1915(CON), 17-2056(CON), 17-2343(CON), 17-2347(CON), 17-2351(CON), 17-2352(CON), 17-2360(CON), 17-2376(CON), 17-2381(CON), 17-2383(CON), 17-2413(CON) Dear Ms. Wolfe: This firm represents UBS AG, UBS Limited, and UBS Securities LLC (collectively, "UBS") in the above-referenced, consolidated appeals. Pursuant to Federal Rule of Appellate Procedure 28(i), I write to inform the Court that UBS joins in the Brief for Defendants- Appellees Regarding Personal Jurisdiction (Dkt. No. 424) and the Brief for Defendants- Appellees Regarding Antitrust Standing (Dkt. No. 425), which were filed on February 12, 2018 by Defendants-Appellees HBOS plc and Lloyds Banking Group plc in appeal number 17-1569. Please feel free to contact me if I can offer additional information in connection with this request. Respectfully, s/ Eric J. Stock Eric J. Stock cc: All counsel (via ECF)

LETTER, on behalf of Appellee Societe Generale, <EDIT by Clerk's Office> RECEIVED. Service date 02/14/2018 by CM/ECF.[2235604] [17-1569] [Entered: 02/14/2018 10:59 AM]

Case 17-1569, Document 439, 02/14/2018, 2235604, Page1 of 1 Mayer Brown LLP 1221 Avenue of the Americas New York, New York 10020-1001 Main Tel +1 212 506 2500 Main Fax +1 212 262 1910 February 14, 2018 www.mayerbrown.com VIA ECF Steven Wolowitz Direct Tel +1 212 506 2535 Direct Fax +1 212 849 5535 Catherine O'Hagan Wolfe swolowitz@mayerbrown.com Clerk of Court United States Court of Appeals for the Second Circuit Thurgood Marshall U.S. Courthouse 40 Foley Square New York, NY 10007 Re: In re LIBOR-Based Financial Instruments Antitrust Litigation, Nos. 17-1569(L), 17- 1915(CON), 17-2056(CON), 17-2376(CON), 17-2383(CON), 17-2413(CON) Dear Ms. Wolfe: We are counsel for Defendant-Appellee Société Générale in appeal numbers 17-1915, 17- 2056, 17-2376, 17-2383, and 17-2413, which have been consolidated with appeal number 17- 1569 (lead case). Pursuant to Federal Rule of Appellate Procedure 28(i), we write to inform the Court that Defendant-Appellee Société Générale joins in the Brief for Defendants-Appellees Regarding Personal Jurisdiction (Appeal No. 17-1569(L), Dkt. No. 424), which was filed on February 12, 2018 by Defendants-Appellees HBOS plc and Lloyd Banking Group plc. Respectfully submitted, /s/ Steven Wolowitz Steven Wolowitz cc: All Counsel of Record (via ECF) Mayer Brown LLP operates in combination with other Mayer Brown entities (the "Mayer Brown Practices"), which have offices in North America, Europe and Asia and are associated with Tauil & Chequer Advogados, a Brazilian law partnership.

DEFECTIVE DOCUMENT, Letter, [{{436}}], on behalf of Appellee The Norinchukin Bank in 17-1569, FILED.[2235941] [17-1569, 17-1915, 17-1989, 17-2056, 17-2343, 17-2347, 17-2351, 17-2352, 17-2360, 17-2376, 17-2381, 17-2383, 17-2413] [Entered: 02/14/2018 01:36 PM]

Case 17-1569, Document 441, 02/14/2018, 2235941, Page1 of 3 United States Court of Appeals for the Second Circuit Thurgood Marshall U.S. Courthouse 40 Foley Square New York, NY 10007 ROBERT A. KATZMANN CATHERINE O'HAGAN WOLFE CHIEF JUDGE CLERK OF COURT Date: February 14, 2018 DC Docket #: 11-md-2262 Docket #: 17-1569cv DC Court: SDNY (NEW YORK Short Title: In Re: Libor-Based Financial CITY)DC Docket #: 11-cv-6409 DC Court: SDNY (NEW YORK CITY)DC Docket #: 11-cv-6411 DC Court: SDNY (NEW YORK CITY)DC Docket #: 11-cv-6412 DC Court: SDNY (NEW YORK CITY)DC Docket #: 11-md-2262 DC Court: SDNY (NEW YORK CITY)DC Docket #: 11-cv-5450 DC Court: SDNY (NEW YORK CITY)DC Docket #: 12-cv-1025 DC Court: SDNY (NEW YORK CITY)DC Docket #: 11-md-2262 DC Court: SDNY (NEW YORK CITY)DC Docket #: 11-cv-2613 DC Court: SDNY (NEW YORK CITY)DC Docket #: 11-md-2262 DC Court: SDNY (NEW YORK CITY)DC Docket #: 11-md-2262 DC Court: SDNY (NEW YORK CITY)DC Docket #: 14-cv-3094 DC Court: SDNY (NEW YORK CITY)DC Docket #: 13-cv-6020 DC Court: SDNY (NEW YORK CITY)DC Docket #: 11-md-2262 DC Court: SDNY (NEW YORK CITY)DC Docket #: 13-cv-4018 DC Court: SDNY (NEW YORK CITY)DC Docket #: 11-md-2262 DC Court: SDNY (NEW YORK CITY)DC Docket #: 13-cv-8799 DC Court: SDNY (NEW YORK CITY)DC Docket #: 14-cv-4189 DC Court: SDNY (NEW YORK CITY)DC Docket #: 13-cv-5616 DC Court: SDNY (NEW YORK CITY)DC Docket #: 11-md-2262 Case 17-1569, Document 441, 02/14/2018, 2235941, Page2 of 3 DC Court: SDNY (NEW YORK CITY)DC Docket #: 13-cv-4018 DC Court: SDNY (NEW YORK CITY)DC Docket #: 11-md-2262 DC Court: SDNY (NEW YORK CITY)DC Docket #: 13-cv-7394 DC Court: SDNY (NEW YORK CITY)DC Docket #: 11-md-2262 DC Court: SDNY (NEW YORK CITY)DC Docket #: 13-cv-5186 DC Court: SDNY (NEW YORK CITY)DC Docket #: 13-cv-626 DC Court: SDNY (NEW YORK CITY)DC Docket #: 13-cv-5221 DC Court: SDNY (NEW YORK CITY)DC Docket #: 13-cv-627 DC Court: SDNY (NEW YORK CITY)DC Docket #: 13-cv-597 DC Court: SDNY (NEW YORK CITY)DC Docket #: 13-cv-8644 DC Court: SDNY (NEW YORK CITY)DC Docket #: 13-cv-5569 DC Court: SDNY (NEW YORK CITY)DC Docket #: 13-cv-625 DC Court: SDNY (NEW YORK CITY)DC Docket #: 13-cv-5187 DC Court: SDNY (NEW YORK CITY) DC Judge: Buchwald NOTICE OF DEFECTIVE FILING On 2/13/2018 the FRAP 28(j) LETTER, dated 02/13/2018, on behalf of Appellee The Norinchukin Bank,, was submitted in the above referenced case. The document does not comply with the FRAP or the Court's Local Rules for the following reason(s): ______ Failure to submit acknowledgment and notice of appearance (Local Rule 12.3) ______ Failure to file the Record on Appeal (FRAP 10, FRAP 11) ______ Missing motion information statement (T-1080 - Local Rule 27.1) ______ Missing supporting papers for motion (e.g, affidavit/affirmation/declaration) (FRAP 27) ______ Insufficient number of copies (Local Rules: 21.1, 27.1, 30.1, 31.1) ______ Improper proof of service (FRAP 25) Case 17-1569, Document 441, 02/14/2018, 2235941, Page3 of 3 ______ Missing proof of service ______ Served to an incorrect address ______ Incomplete service (Anders v. California 386 U.S. 738 (1967)) ______ Failure to submit document in digital format (Local Rule 25.1) ______ Not Text-Searchable (Local Rule 25.1, Local Rules 25.2), click here for instructions on how to make PDFs text searchable ______ Failure to file appendix on CD-ROM (Local Rule 25.1, Local Rules 25.2) ______ Failure to file special appendix (Local Rule 32.1) ______ Defective cover (FRAP 32) ______ Incorrect caption (FRAP 32) ______ Wrong color cover (FRAP 32) ______ Docket number font too small (Local Rule 32.1) ______ Incorrect pagination, click here for instructions on how to paginate PDFs (Local Rule 32.1) ______ Incorrect font (FRAP 32) ______ Oversized filing (FRAP 27 (motion), FRAP 32 (brief)) ______ Missing Amicus Curiae filing or motion (Local Rule 29.1) ______ Untimely filing ___x___ Incorrect Filing Event ___x___ Other: Please re-file as Letter Please cure the defect(s) and resubmit the document, with the required copies if necessary, no later than 2/16/2018. The resubmitted documents, if compliant with FRAP and the Local Rules, will be deemed timely filed. Failure to cure the defect(s) by the date set forth above will result in the document being stricken. An appellant's failure to cure a defective filing may result in the dismissal of the appeal. Inquiries regarding this case may be directed to 212-857-8563.

LETTER, on behalf of Appellee The Royal Bank of Scotland PLC and The Royal Bank of Scotland Group PLC, <EDIT by Clerk's Office> RECEIVED. Service date 02/14/2018 by CM/ECF.[2236314] [17-1569] [Entered: 02/14/2018 04:33 PM]

Case 17-1569, Document 442, 02/14/2018, 2236314, Page1 of 1 February 14, 2018 David Sapir Lesser +1 212 230 8851 (t) VIA ECF +1 212 230 8888 (f) david.lesser@wilmerhale.com Catherine O'Hagan Wolfe Clerk of Court United States Court of Appeals for the Second Circuit Thurgood Marshall U.S. Courthouse 40 Foley Square New York, NY 10007 Re: In re LIBOR-Based Financial Instruments Antitrust Litigation, Nos. 17-1569(L); 17-1915; 17-1989; 17-2056; 17-2343; 17-2347; 17-2351; 17-2381; 17-2352; 17-2376; 17-2383; 17- 2413. Dear Ms. Wolfe: I write on behalf of Defendants-Appellees The Royal Bank of Scotland Group plc and The Royal Bank of Scotland plc with respect to the above-listed appeals consolidated with appeal number 17-1569. 1 Pursuant to Federal Rule of Appellate Procedure 28(i), The Royal Bank of Scotland Group plc and The Royal Bank of Scotland plc join in the Brief for Defendants-Appellees Regarding Personal Jurisdiction (Dkt. No. 424) and The Royal Bank of Scotland Group plc joins in the Brief for Defendants-Appellees Regarding Antitrust Standing (Dkt. No. 425). Both briefs were filed on February 12, 2018 by Defendants-Appellees HBOS plc and Lloyds Banking Group plc in appeal number 17-1569. Respectfully submitted, /s/ David Sapir Lesser David Lesser cc: All Counsel of Record (via ECF) 1 Wilmer Cutler Pickering Hale and Dorr LLP is counsel for Defendants-Appellees The Royal Bank of Scotland Group plc and The Royal Bank of Scotland plc except as to plaintiff Prudential Investment Portfolios 2. Clifford Chance US LLP is counsel for Defendant-Appellee The Royal Bank of Scotland plc as to plaintiff Prudential Investment Portfolios 2.

LETTER, on behalf of Appellee The Norinchukin Bank, <EDIT by Clerk's Office> RECEIVED. Service date 02/14/2018 by CM/ECF.[2236325] [17-1569] [Entered: 02/14/2018 04:37 PM]

Case 17-1569, Document 443, 02/14/2018, 2236325, Page1 of 1 SIDLEY AUSTIN LLP 787 SEVENTH AVENUE NEW YORK, NY 10019 +1 212 839 5300 +1 212 839 5599 FAX ASTERN@SIDLEY.COM AMERICA • ASIA PACIFIC • EUROPE +1 212 839 5397 February 13, 2018 Catherine O'Hagan Wolfe, Clerk of Court United States Court of Appeals for the Second Circuit Thurgood Marshall United States Courthouse 40 Foley Square New York, New York 10007 Re: In re LIBOR-Based Financial Instruments Antitrust Litigation, Docket Nos. 17- 1569(L); 17-1915; 17-1989; 17-2056; 17-2343; 17-2376; 17-2383; 17-2413 Dear Ms. Wolfe: We represent Appellee The Norinchukin Bank ("Norinchukin") in appeal nos. 17-1915; 17-1989; 17-2056; 17-2343; 17-2376; 17-2383; and 17-2413, which have been consolidated with appeal no. 17-1569(L) by order dated August 24, 2017 in In re LIBOR-Based Financial Instruments Antitrust Litigation, no. 17-1569 [ECF no. 141]. Pursuant to Federal Rule of Appellate Procedure 28(i), I write to inform the Court that Norinchukin joins in the briefs filed February 12, 2018 by HBOS plc and Lloyds Banking Group plc (Dkt. Nos. 424 and 425) in appeal no. 17-1569(L). Respectfully submitted, /s/ Andrew W. Stern Andrew W. Stern cc: All Counsel of Record (by ECF) Sidley Austin (NY) LLP is a Delaware limited liability partnership doing business as Sidley Austin LLP and practicing in affiliation with other Sidley Austin partnerships.

MOTION, to extend time, on behalf of Appellant Charles Schwab & Co., Inc., Charles Schwab Bank, N.A., Schwab Advisor Cash Reserves, Schwab Cash Reserves, Schwab Investor Money Fund, Schwab Money Market Fund, Schwab Retirement Advantage Money Fund, Schwab Short-Term Bond Market Fund, Schwab Total Bond Market Fund, Schwab U.S. Dollar Liquid Assets Fund, Schwab Value Advantage Money Fund, Schwab YieldPlus Fund, Schwab YieldPlus Fund Liquidation Trust and The Charles Schwab Corporation in 17-1569, Appellant Ellen Gelboim and Linda Zacher in 17-1989, FILED. Service date 02/15/2018 by CM/ECF. [2237025] [17-1569, 17-1915, 17-1989, 17-2056, 17-2343, 17-2347, 17-2351, 17-2352, 17-2360, 17-2376, 17-2381, 17-2383, 17-2413] [Entered: 02/15/2018 01:24 PM]

Case 17-1569, Document 444, 02/15/2018, 2237025, Page1 of 24 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Thurgood Marshall U.S. Courthouse 40 Foley Square, New York, NY 10007 Telephone: 212-857-8500 MOTION INFORMATION STATEMENT Docket Number(s): 17-1569 et al. Caption [use short title] Motion for: Extension of the Deadline for Filing In re LIBOR-Based Financial Instruments Antitrust Litigation Plaintiffs-Appellants' Reply Briefs Set forth below precise, complete statement of relief sought: Plaintiffs-Appellants respectfully request that the Court extend the current due date for their reply brief by 18 days to March 16, 2018. MOVING PARTY: See Attachment #1 OPPOSING PARTY: See Attachment #2 ✔ 9 Plaintiff 9 Defendant ✔9 Appellant/Petitioner 9 Appellee/Respondent MOVING ATTORNEY: Eric F. Citron OPPOSING ATTORNEY: See Attachment #2 [name of attorney, with firm, address, phone number and e-mail] Goldstein & Russell, P.C. 7475 Wisconsin Ave., Suite 850, Bethesda, MD 20814 (202) 362-0636; ecitron@goldsteinrussell.com Court-Judge/Agency appealed from: S. District Court for the Southern District of N.Y. (Buchwald, J.) Please check appropriate boxes: FOR EMERGENCY MOTIONS, MOTIONS FOR STAYS AND INJUNCTIONS PENDING APPEAL: Has movant notified opposing counsel (required by Local Rule 27.1): Has request for relief been made below? 9 Yes 9 No ✔9 Yes 9 No (explain): Has this relief been previously sought in this Court? 9 Yes 9 No Requested return date and explanation of emergency: Opposing counsel's position on motion: ✔ 9 Unopposed 9 Opposed 9 Don't Know Does opposing counsel intend to file a response: 9 Yes ✔ 9 No 9 Don't Know Is oral argument on motion requested? 9 Yes ✔ 9 No (requests for oral argument will not necessarily be granted) Has argument date of appeal been set? 9 Yes ✔ 9 No If yes, enter date:__________________________________________________________ Signature of Moving Attorney: /s/ Eric F. Citron ___________________________________Date: February 15, 2018 ___________________ Service by: ✔ 9 CM/ECF 9 Other [Attach proof of service] Form T-1080 (rev. 12-13) Case 17-1569, Document 444, 02/15/2018, 2237025, Page2 of 24 ATTACHMENT #1: LIST OF MOVING PARTIES (PLAINTIFFS-APPELLANTS) Dkt. #17-1569 Schwab Money Market Fund Schwab Value Advantage Money Fund Schwab Retirement Advantage Money Fund Schwab Investor Money Fund Schwab Cash Reserves Schwab Advisor Cash Reserves Schwab YieldPlus Fund Schwab YieldPlus Fund Liquidation Trust Charles Schwab Bank, N.A. Charles Schwab & Co., Inc. The Charles Schwab Corporation Schwab Short-Term Bond Market Fund Schwab Total Bond Market Fund Schwab U.S. Dollar Liquid Assets Fund Dkt. #17-1915 Mayor and City Council of Baltimore City of New Britain Vistra Energy Corporation Yale University Jennie Stuart Medical Center, Inc. Dkt. #17-1989 Ellen Gelboim Linda Zacher Dkt. #17-2056 Metzler Investment GmbH FTC Futures Funds SICAV FTC Futures Fund PCC Ltd. Atlantic Trading USA, LLC 303030 Trading LLC Gary Francis Nathaniel Haynes Dkt. #17-2343 Bay Area Toll Authority Dkt. #17-2347 The City of Philadelphia The Pennsylvania Intergovernmental Cooperation Authority 1 Case 17-1569, Document 444, 02/15/2018, 2237025, Page3 of 24 Dkt. #17-2351 Salix Capital US, Inc. Dkt. #17-2352 Darby Financial Products Capital Ventures International Dkt. #17-2360 Prudential Investment Portfolios 2 Dkt. #17-2376 City of Houston Dkt. #17-2381 Salix Capital US, Inc. Dkt. #17-2383 National Credit Union Administration Board Dkt. #17-2413 California Public Plaintiffs San Diego Association of Governments City of Richmond City of Riverside County of Mendocino County of Sacramento County of San Diego County of San Mateo County of Sonoma Regents of the University of California East Bay Municipal Utility District Richmond Joint Powers Financing Authority Successor Agency to the Richmond Community Redevelopment Agency Riverside Public Financing Authority The San Mateo County Joint Powers Financing Authority David E. Sundstrom 2 Case 17-1569, Document 444, 02/15/2018, 2237025, Page4 of 24 ATTACHMENT #2: LIST OF OPPOSING PARTIES AND THEIR ATTORNEYS BANK OF AMERICA CORPORATION; BANK OF AMERICA, N.A.; and MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED (f/k/a BANC OF AMERICA SECURITIES, LLC) Arthur J. Burke Paul S. Mishkin Adam G. Mehes DAVIS POLK & WARDWELL 450 Lexington Avenue New York, NY 10017 Telephone: (212) 450-4000 Facsimile: (212) 450-3352 arthur.burke@davispolk.com paul.mishkin@davispolk.com adam.mehes@davispolk.com BARCLAYS BANK PLC and BARCLAYS CAPITAL INC. Jonathan D. Schiller Leigh M. Nathanson BOIES, SCHILLER & FLEXNER LLP 575 Lexington Avenue New York, NY 10022 Telephone: (212) 446-2300 Facsimile: (212) 446-2350 jschiller@bsfllp.com lnathanson@bsfllp.com Michael A. Brille BOIES, SCHILLER & FLEXNER LLP 1401 New York Avenue, NW Washington, DC 20005 Telephone: (202) 237-2727 Facsimile: (202) 237-6131 mbrille@bsfllp.com 1 Case 17-1569, Document 444, 02/15/2018, 2237025, Page5 of 24 CITIGROUP INC.; CITIBANK, N.A.; CITIGROUP FINANCIAL PRODUCTS, INC.; and CITI SWAPCO INC. Alan M. Wiseman COVINGTON & BURLING LLP 1201 Pennsylvania Avenue, NW Washington, DC 20004 Telephone: (202) 662-5457 Facsimile: (202) 778-5457 awiseman@cov.com Andrew A. Ruffino COVINGTON & BURLING LLP 620 Eighth Avenue New York, NY 10018-1405 Telephone: (212) 841-1000 Facsimile: (212) 841-1010 aruffino@cov.com COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A. (n/k/a COÖPERATIEVE RABOBANK U.A.) and RABOBANK GROUP David R. Gelfand Robert C. Hora Mark D. Villaverde Jonathan Ohring MILBANK, TWEED, HADLEY & MCCLOY LLP 28 Liberty Street New York, NY 10005 Telephone: (212) 530-5000 Facsimile: (212) 822-5520 dgelfand@milbank.com rhora@milbank.com mvillaverde@milbank.com johring@milbank.com 2 Case 17-1569, Document 444, 02/15/2018, 2237025, Page6 of 24 CREDIT SUISSE AG; CREDIT SUISSE GROUP AG; CREDIT SUISSE (USA), INC.; CREDIT SUISSE INTERNATIONAL; and CREDIT SUISSE GROUP INTERNATIONAL Herbert S. Washer Elai E. Katz Joel Kurtzberg Jason M. Hall Adam Mintz CAHILL GORDON & REINDEL LLP 80 Pine Street New York, NY 10005 Telephone: (212) 701-3000 Facsimile: (212) 269-5420 hwasher@cahill.com ekatz@cahill.com jkurtzberg@cahill.com jhall@cahill.com amintz@cahill.com DEUTSCHE BANK AG Moses Silverman Aidan Synnott PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 1285 Avenue of the Americas New York, NY 10019 Telephone: (212) 373-3355 Facsimile: (212) 492-0355 msilverman@paulweiss.com asynnott@paulweiss.com 3 Case 17-1569, Document 444, 02/15/2018, 2237025, Page7 of 24 HSBC BANK PLC; HSBC HOLDINGS PLC; HSBC SECURITIES (USA) INC.; HSBC BANK USA, N.A.; HSBC FINANCE CORPORATION; HSBC USA, INC.; and THE HONG KONG AND SHANGHAI BANKING CORPORATION LTD. Gregory T. Casamento R. James DeRose, III LOCKE LORD LLP Brookfield Place 200 Vesey Street, 20th Floor New York, NY 10281 Telephone: (212) 415-8600 Facsimile: (212) 812-8379 edeyoung@lockelord.com gcasamento@lockelord.com rderose@lockelord.com Roger B. Cowie LOCKE LORD LLP 2200 Ross Avenue, Suite 2200 Dallas, TX 75201 Telephone: (214) 740-8614 Facsimile: (214) 740-8800 rcowie@lockelord.com Julia C. Webb J. Matthew Goodin LOCKE LORD LLP 111 South Wacker Drive Telephone: (312) 443-0404 Facsimile: (312) 896-6404 jwebb@lockelord.com jmgoodin@lockelord.com Jack Ballard BALLARD & LITTLEFIELD, LLP 3700 Buffalo Speedway, Suite 250 Houston, TX 77098 Telephone: (713) 403-6400 4 Case 17-1569, Document 444, 02/15/2018, 2237025, Page8 of 24 JPMORGAN CHASE & CO.; JPMORGAN CHASE BANK, N.A.; and J.P. MORGAN BANK DUBLIN PLC (f/k/a BEAR STEARNS BANK PLC) Thomas C. Rice Paul C. Gluckow Alan C. Turner Alexander N. Li SIMPSON THACHER & BARTLETT LLP 425 Lexington Avenue New York, NY 10017 Telephone: (212) 455-2000 Facsimile: (212) 455-2502 trice@stblaw.com pgluckow@stblaw.com aturner@stblaw.com zander.li@stblaw.com Abram J. Ellis SIMPSON THACHER & BARTLETT LLP 900 G Street, NW Washington, DC 20001 Telephone: (202) 636-5500 Facsimile: (202) 636-5502 aellis@stblaw.com ROYAL BANK OF CANADA and RBC CAPITAL MARKETS LLC Robert T. Smith Christian T. Kemnitz KATTEN MUCHIN ROSENMAN, LLP 525 West Monroe Street Chicago, IL 60661 Telephone: (312) 902-5200 Facsimile: (312) 902-1061 robert.smith@kattenlaw.com christian.kemnitz@kattenlaw.com 5 Case 17-1569, Document 444, 02/15/2018, 2237025, Page9 of 24 LLOYDS BANKING GROUP PLC; LLOYDS BANK PLC; and HBOS PLC Neal K. Katyal Eugene A. Sokoloff Allison Turbiville HOGAN LOVELLS US LLP 555 13th Street, NW Washington, DC 20004 Telephone: (202) 637-5600 Facsimile: (202) 637-5910 neal.katyal@hoganlovells.com eugene.sokoloff@hoganlovells.com allison.turbiville@hoganlovells.com Marc J. Gottridge Lisa J. Fried HOGAN LOVELLS US LLP 875 Third Avenue New York, NY 10022 Telephone: (212) 918-3000 Facsimile: (212) 918-3100 marc.gottridge@hoganlovells.com lisa.fried@hoganlovells.com THE BANK OF TOKYO-MITSUBISHI UFJ, LTD. Daryl A. Libow Christopher M. Viapiano SULLIVAN & CROMWELL LLP 1700 New York Avenue, N.W., Suite 700 Washington, DC 20006-5215 Telephone: (202) 956-7500 Facsimile: (202) 293-6330 libowd@sullcrom.com viapianoc@sullcrom.com 6 Case 17-1569, Document 444, 02/15/2018, 2237025, Page10 of 24 THE NORINCHUKIN BANK Andrew W. Stern Alan M. Unger Thomas A. Paskowitz SIDLEY AUSTIN LLP 787 Seventh Avenue New York, NY 10019 Telephone: (212) 839-5300 Facsimile: (212) 839-5599 astern@sidley.com aunger@sidley.com tpaskowitz@sidley.com THE ROYAL BANK OF SCOTLAND GROUP PLC and THE ROYAL BANK OF SCOTLAND PLC David S. Lesser WILMER CUTLER PICKERING HALE AND DORR LLP 7 World Trade Center New York, NY 10007 Telephone: (212) 230-8851 Facsimile: (212) 230-8888 david.lesser@wilmerhale.com SOCIETE GENERALE S.A. Steven Wolowitz Henninger S. Bullock Andrew J. Calica MAYER BROWN LLP 1221 Avenue of the Americas New York, NY 10020-1001 Telephone: (212) 506-2500 Facsimile: (212) 262-1910 swolowitz@mayerbrown.com hbullock@mayerbrown.com acalica@mayerbrown.com 7 Case 17-1569, Document 444, 02/15/2018, 2237025, Page11 of 24 UBS AG; UBS SECURITIES LLC; and UBS LIMITED Mark A. Kirsch Lawrence J. Zweifach Jefferson E. Bell Eric J. Stock GIBSON, DUNN & CRUTCHER, LLP 200 Park Avenue, 47th Floor New York, NY 10166 Telephone: (212) 351-4000 Facsimile: (212) 351-4035 mkirsch@gibsondunn.com lzweifach@gibsondunn.com jbell@gibsondunn.com estock@gibsondunn.com WESTLB AG (n/k/a PORTIGON AG) and WESTDEUTSCHE IMMOBILIENBANK AG Christopher M. Paparella HUGHES HUBBARD & REED LLP One Battery Park Plaza New York, NY 10004 Telephone: (212) 837-6000 Facsimile: (212) 422-4726 Chris.Paparella@hugheshubbard.com BRITISH BANKERS' ASSOCIATION; BBA ENTERPRISES LTD.; and BBA LIBOR LTD. Jeff G. Hammel LATHAM & WATKINS LLP 885 Third Avenue New York, NY 10022 Telephone: (212) 906-1200 Facsimile: (212)-751-4864 jeff.hammel@lw.com 8 Case 17-1569, Document 444, 02/15/2018, 2237025, Page12 of 24 17-1569 (L) 17-1915(CON), 17-1989(CON), 17-2056(CON), 17-2343(CON), 17-2347(CON), 17-2351(CON), 17-2352(CON), 17-2360(CON), 17-2376(CON), 17-2381(CON), 17-2383(CON), 17-2413(CON) United States Court of Appeals for the Second Circuit IN RE LIBOR-BASED FINANCIAL INSTRUMENTS ANTITRUST LITIGATION (Caption Continued on the Following Pages) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK MOTION TO EXTEND THE DEADLINE FOR FILING PLAINTIFFS-APPELLANTS' REPLY BRIEFS GOLDSTEIN & RUSSELL, P.C. Thomas C. Goldstein Eric Citron Charles H. Davis 7475 Wisconsin Ave., Suite 850 Bethesda, MD 20814 (202) 362-0636 tg@goldsteinrussell.com ecitron@goldsteinrussell.com cdavis@goldsteinrussell.com Counsel for Plaintiffs-Appellants in Dkt. #17-1569 and Dkt. #17-1989 Case 17-1569, Document 444, 02/15/2018, 2237025, Page13 of 24 Schwab Short-Term Bond Market Fund, Schwab Total Bond Market Fund, Schwab U.S. Dollar Liquid Assets Fund, Schwab Money Market Fund, Schwab Value Advantage Money Fund, Schwab Retirement Advantage Money Fund, Schwab Investor Money Fund, Schwab Cash Reserves, Schwab Advisor Cash Reserves, Charles Schwab Bank, N.A., Charles Schwab & Co., Inc., Schwab YieldPlus Fund, Schwab YieldPlus Fund Liquidation Trust, The Charles Schwab Corporation, City of New Britain, on behalf of itself and all others similarly situated, Mayor and City Council of Baltimore, City of Houston, Vistra Energy Corporation, Yale University, Jennie Stuart Medical Center, Inc., FTC Futures Fund PCC Ltd, on behalf of themselves and all others similarly situated, National Credit Union Administration Board, as Liquidating Agent of U.S. Central Federal Credit Union, Western Corporate Federal Credit Union, Members United Corporate Federal Credit Union, Southwest Corporate Federal Credit Union, and Constitution Corporate Federal Credit Union, Pennsylvania Intergovernmental Cooperation Authority, City of Philadelphia, Darby Financial Products, Salix Capital US Inc., Capital Ventures International, Prudential Investment Portfolios 2, FKA Dryden Core Investment Fund, on behalf of Prudendtial Core Short-Term Bond Fund, Bay Area Toll Authority, California Public Plaintiffs, Linda Zacher, Ellen Gelboim, on behalf of herself and all others similarly situated, Gary Francis, Metzler Investment GmbH, on behalf of itself and all others similarly situated, 303030 Trading LLC, Atlantic Trading USA, LLC, FTC Futures Fund SICAV, on behalf of themselves and all others similarly situated, Nathaniel Haynes, County of Sonoma, The San Mateo County Joint Powers Financing Authority, Richmond Joint Powers Financing Authority, Successor Agency to the Richmond Community Redevelopment Agency, Riverside Public Financing Authority, David E. Sundstrom, in his official capacity as Treasurer of the county of Sonoma for and on behalf of the Sonoma County Tresury Pool Investment, East Bay Municipal Utility District, Regents of the University of California, Plaintiffs-Appellants, Carpenters Pension Fund of West Virginia, City of Dania Beach Police & Firefighters' Retirement System, Individually and on behalf of all others similarly situated, Ravan Investments, LLC, Richard Hershey, Jeffrey Laydon, on behalf of himself and all others similarly situated, Roberto E. Calle Gracey, AVP Properties, LLC, Community Bank & Trust, Berkshire Bank, Individually and On Behalf of All Others Similarly Situated, Elizabeth Lieberman, on behalf of themselves and all other similarly situated, Todd Augenbaum, on behalf of themselves and all others similarly situated, 33-35 Green Pond Road Associates, LLC, on behalf of itself and all others similarly situated, Courtyard at Amwell II, LLC, Annie Bell Adams, on behalf of herself and all others similarly situated, Jill Court Associates Case 17-1569, Document 444, 02/15/2018, 2237025, Page14 of 24 II, LLC, Greenwich Commons II, LLC, Dennis Paul Fobes, on behalf of himself and all others similarly situated, Leigh E. Fobes, on behalf of herself and all others similarly situated, Maidencreek Ventures II LP, Raritan Commons, LLC, Margaret Lambert, on behalf of herself and all others similarly situated, Lawrence W. Gardner, on behalf of themselves and all others similarly situated, Betty L. Gunter, on behalf of herself and all others similarly situated, Texas Competitive Electric Holdings Company LLC, Government Development Bank for Puerto Rico, Carl A. Payne, individually, and on behalf of other members of the general public similarly situated, Guaranty Bank and Trust Company, Individually and on behalf of all others similarly situated, Kenneth W. Coker, individually, and on behalf of other members of the general public similarly situated, The County of Mendocino, County of San Mateo, City of Richmond, County of San Diego, City of Riverside, County of Sacramento, San Diego Association of Governments, Joseph Amabile, Louie Amabile, individually & on behalf of Lue Trading, Inc., Norman Byster, Michael Cahill, Richard Deogracias, individually on behalf of RCD Trading, Inc., Heather M. Earle, on behalf of themselves and all others similarly situated, Henryk Malinowski, on behalf of themselves and all others similarly situated, Marc Federighi, individually on behalf of MCO Trading, Scott Federighi, individually on behalf of Katsco, Inc., Linda Carr, on behalf of themselves and all others similarly situated, Eric Friedman, on behalf of themselves and all others similarly situated, Robert Furlong, individually on behalf of XCOP, Inc., David Gough, County of Riverside, Jerry Weglarz, Brian Haggerty, individually on behalf of BJH Futures, Inc., David Klusendorf, Nathan Weglarz, on behalf of plaintiffs and a class, Directors Financial Group, individually and on behalf of all others similarly situated, Ronald Krug, Christopher Lang, SEIU Pension Plans Master Trust, individually and on behalf of all others similarly situated, Highlander Realty, LLC, John Monckton, Philip Olson, Jeffrey D. Buckley, Federal Home Loan Mortgage Corporation, Brett Pankau, David Vecchione, individually on behalf of Vecchione & Associates, Randall Williams, John Henderson, 303 Proprietary Trading LLC, Margery Teller, CEMA Joint Venture, Nicholas Pesa, Eduardo Restani, Principal Funds, Inc., PFI Bond & Mortgage Securities Fund, PFI Bond Market Index Fund, PFI Core Plus Bond I Fund, PFI Diversified Real Asset Fund, PFI Equity Income Fund, PFI Global Diversified Income Fund, PFI Government &High Quality Bond Fund, PFI High Yield Fund, PFI High Yield Fund I, PFI Income Fund, PFI Inflation Protection Fund, PFI Short-Term Income Fund, PFI Money Market Fund, PFI Preferred Securities Fund, Principal Variable Contracts Funds, Inc., PVC Asset Allocation Account, PVC Money Market Account, PVC Balanced Account, PVC Bond & Mortgage Securities Account, PVC Equity Income Account, PVC Government & High Quality Bond Account, PVC Income Account, PVC Short-Term Income Account, Principal Financial Case 17-1569, Document 444, 02/15/2018, 2237025, Page15 of 24 Group, Inc., Principal Financial Services, Inc., Principal Life Insurance Company, Principal Capital Interest Only I, LLC, Principal Commercial Funding, LLC, Principal Commercial Funding II, LLC, Principal Real Estate Investors, LLC, Vito Spillone, Brian McCormick, Maxwell Van De Velde, Individually and on behalf of all others similarly situated, Independence Trading, Inc., Insulators and Asbestos Workers Local #14, Individually and on behalf of all others similarly situated, Courmont & Wapner Associates, L.P., on behalf of itself and all others similarly situated, Salix Capital Ltd., FTC Capital GMBH, on behalf of themselves and all others similarly situated, City of New Britain Firefighters' and Police Benefit Fund, Direct Action Plaintiffs, Federal National Mortgage Association, Triaxx Prime CDO 2006-1, Ltd., Triaxx Prime CDO 2006-2, Ltd., Triaxx Prime CDO 2007-1, Ltd., Federal Deposit Insurance Corporation, as Receiver, Fran P. Goldsleger, National Asbestos Workers Pension Fund, Pension Trust for Operating Engineers, Hawaii Annuity Trust Fund for Operating Engineers, Cement Masons' International Association Employees' Trust Fund, individually and on behalf of all others similarly situated, Axiom Investment Advisors, LLC, Axiom HFT LLC, Axiom Investment Advisors Holdings L.P., Axiom Investment Company, LLC, Axiom Investment Company Holdings L.P., Axiom FX Investment Fund, L.P., Axiom FX Investment Fund II, L.P., Axiom FX Investment 2X Fund, L.P., Ephraim F. Gildor, Gildor Family Advisors L.P., Gildor Family Company L.P., Gildor Management, LLC, Prudential Core Taxable Money Market Fund, Plaintiffs, – v. – Lloyds Banking Group plc, Bank of America Corporation, The Royal Bank of Scotland Group PLC, Citibank, N.A., Credit Suisse Group AG, Deutsche Bank AG, JPMorgan Chase & Co., The Norinchukin Bank, HBOS plc, Royal Bank of Canada, HSBC Bank PLC, Citigroup Inc., Cooperatieve Rabobank U.A., FKA Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., JPMorgan Chase Bank, N.A., The Bank of Tokyo-Mitsubishi UFJ, Ltd., Bank of America, N.A., Barclays Bank PLC, WestDeutsche ImmobilienBank AG, Portigon AG, FKA WestLB AG, HSBC Holdings PLC, WestLB AG, Societe Generale, Cooperatieve Centrale Raiffeisen - Boerenleenbank B.A., Credit Suisse International, Credit Suisse (USA), Inc., The Royal Bank of Scotland PLC, Credit Suisse AG, HSBC Securities (USA) Inc., HSBC Bank USA, N.A., HSBC Finance Corporation, Barclays Capital Inc., HSBC USA, Inc., The Hong Kong and Shanghai Banking Corporation Ltd., RBC Capital Markets LLC, Bank of America N.A., Rabobank Group, UBS Securities LLC, Citi Swapco Inc., BBA Enterprises, Ltd., BBA Libor, Ltd., British Bankers' Association, Merrill Lynch, Pierce, Fenner & Smith Incorporated, FKA Banc of America Securities, LLC, Citigroup Financial Case 17-1569, Document 444, 02/15/2018, 2237025, Page16 of 24 Products, Inc., J.P. Morgan Bank Dublin PLC, FKA Bear Stearns Bank PLC, UBS Limited, Credit Suisse Group International, UBS AG, Defendants-Appellees, Credit Agricole S.A., Sumitomo Mitsui Banking Corporation, BNP Paribas S.A., RBS Citizens, N.A., incorrectly sued as othe Charter One Bank NA, RBS Citizens, N.A., Credit Suisse Group, NA, Citizens Bank of Massachusetts, agent of RBS Citizens Bank, NA, Barclays US Funding LLC, Deutsche Bank Financial LLC, Does 1 Through 10, Societe Generale Corporate & Investment Banking, National Association, Stephanie Nagel, John Does #1- #5, National Collegiate Student Loan Trust 2007-1, Chase Bank USA, N.A., J.P. Morgan Clearing Corp., Bank of America Securities LLC, Centrale Raiffeisen-Berenleenbank B.A., UBS AG, Royal Bank of Scotland Group PLC, Bank of Nova Scotia, Credit Suisse Securities (USA) LLC, RBS Group, Lloyds Bank PLC, FKA Lloyds Bank plc, Citizens Bank N.A., Credit Suisse Securities (USA) LLC, Citigroup Global Markets, Inc., The Royal Bank of Scotland PLC, Lloyds Bank plc, Citigroup Funding, Inc., Societe Generale S.A., Barclays PLC, J.P. Morgan Securities LLC, FKA J.P. Morgan Securities Inc., Deutsche Bank Securities Incorporated, Banc of America Securities, LLC, RBS Securities Inc., FKA Greenwich Capital Markets, Inc., Lloyds TSB Bank PLC, ICAP plc, J.P. Morgan Markets Ltd., Bank of America Home Loans, Merrill Lynch Capital Services, Inc., Citigroup Global Markets Limited, Merrill Lynch & Co., Inc., Merrill Lynch International Bank, Ltd., Bear Stearns Capital Markets, Inc., Barclays Capital (Cayman) Limited, Institute of International Bankers, Clearing House Association L.L.C., Defendants. Case 17-1569, Document 444, 02/15/2018, 2237025, Page17 of 24 MOTION FOR FILING EXTENSION Plaintiffs-appellants (listed in Attachment #1 to the accompanying motion information statement) hereby respectfully request an extension of 18 days for the filing of their reply briefs, from February 26, 2018, to March 16, 2018. This Court previously granted an extension of time for plaintiffs-appellants' principal briefs on October 11, 2017 (17-1569 Doc. 274). This request, which defendants-appellees do not oppose, is prompted by extraordinary circumstances, and good cause exists for the relief requested. Extraordinary circumstances justify this unopposed extension request. Counsel for plaintiffs-appellants have extensive case conflicts over the next month that have only recently arisen. The additional time requested is short, will not prejudice any party or the Court, and is likely to produce arguments that are more condensed and succinct. Accordingly, granting the requested extension is appropriate and in the interests of the litigants and the Court. Goldstein & Russell, P.C. faces an extraordinary set of scheduling conflicts over the recent and coming period, further providing good cause for the requested extension. In particular, the U.S. Supreme Court recently granted counsel's petition for a writ of certiorari in South Dakota v. Wayfair, Inc. (No. 17-494) and will consider the case on the merits this Term. Counsel's principal brief and joint appendix are due on February 26, 2018—the same current due date for the reply 1 Case 17-1569, Document 444, 02/15/2018, 2237025, Page18 of 24 briefs in this appeal. Counsel has also recently filed a reply brief in a complicated environmental case in the D.C. Circuit, Western Organization of Resource Councils v. Zinke (No. 15-5294) (filed Jan. 19, 2018), and is currently involved in preparation to present oral argument in that appeal on March 23, 2018. These closely scheduled matters, in combination with Goldstein & Russell's personnel conflicts, constitute extraordinary circumstances and necessitate the short extension requested. The attorney with primary drafting responsibility on the principal briefs will be on paternity leave following the birth of his first child when these reply briefs are due. A short extension of time is necessary for new counsel to step into that role and to review the underlying materials and recently filed briefs. Finally, as the Court is aware, there are multiple plaintiff groups involved in this multi-party appeal, and the independent review necessary for the lawyers representing each group adds significant additional time and complication to the briefing process. The logistical challenges that were present in the principal-briefing phase remain for drafting the reply briefs. For the Court's benefit, plaintiffs- appellants have again undertaken to submit only a single reply brief on personal jurisdiction and a single, separate reply brief on antitrust standing. With that streamlining comes the necessarily protracted process of allowing time for each plaintiff group's individual counsel to review any draft. The short extension requested will benefit the parties and the Court by allowing counsel the time 2 Case 17-1569, Document 444, 02/15/2018, 2237025, Page19 of 24 necessary to refine its responses to defendants-appellees' two principal briefs and to prepare clear and concise reply briefs for the Court's review. CONCLUSION For the foregoing reasons, the requested extension of time for filing plaintiffs- appellants' reply briefs to and including March 16, 2018, should be granted. Dated: February 15, 2018 Respectfully submitted, By: /s/ Steven E. Fineman By: /s/ Eric F. Citron STEVEN E. FINEMAN THOMAS C. GOLDSTEIN MICHAEL J. MIARMI ERIC F. CITRON LIEFF CABRASER HEIMANN CHARLES H. DAVIS & BERNSTEIN, LLP GOLDSTEIN & RUSSELL, P.C. 250 Hudson Street, 8th Floor 7475 Wisconsin Avenue, Suite 850 New York, New York 10013 Bethesda, Maryland 20814 (212) 355-9500 (202) 362-0636 – and – Attorneys for the Schwab Plaintiffs- BRENDAN P. GLACKIN Appellants and Plaintiffs-Appellants LIEFF CABRASER HEIMANN Ellen Gelboim and Linda Zacher & BERNSTEIN, LLP 275 Battery Street, 29th Floor San Francisco, California 94111 (415) 956-1000 Attorneys for the Schwab Plaintiffs- Appellants and Plaintiff-Appellant Bay Area Toll Authority 3 Case 17-1569, Document 444, 02/15/2018, 2237025, Page20 of 24 By: /s/ Barry Barnett By: /s/ Richard W. Mithoff BARRY BARNETT RICHARD W. MITHOFF SUSMAN GODFREY L.L.P. MITHOFF LAW 1000 Louisiana Street One Allen Center Houston, Texas 77002 Penthouse, Suite 3450 (713) 651-9366 500 Dallas Street – and – Houston, Texas 77002 WILLIAM C. CARMODY (713) 654-1122 ARUN S. SUBRAMANIAN Attorney for Plaintiff-Appellant GENG CHEN City of Houston SUSMAN GODFREY L.L.P. 1301 Avenue of the Americas By: /s/ Nanci E. Nishimura New York, New York 10019 NANCI E. NISHIMURA (212) 336-8330 COTCHETT, PITRE & – and – MCCARTHY, LLP DREW HANSEN 840 Malcolm Road, Suite 200 SUSMAN GODFREY L.L.P. Burlingame, California 94010 1201 Third Avenue (650) 697-6000 Seattle, Washington 98101 – and – (206) 516-3880 ALEXANDER E. BARNETT – and – COTCHETT, PITRE & MARC M. SELTZER MCCARTHY, LLP SUSMAN GODFREY L.L.P. 40 Worth Street, 10th Floor 1901 Avenue of the Stars New York, New York 10013 Los Angeles, California 90067 (212) 201-6820 (310) 789-3100 – and – Attorneys for Plaintiffs-Appellants MICHAEL D. HAUSFELD City of Houston, California Public HILARY K. SCHERRER Plaintiffs, County of Sonoma, The San NATHANIAL C. GIDDINGS Mateo County Joint Powers HAUSFELD LLP Financing Authority, Richmond Joint 1700 K Street, NW Powers Financing Authority, Washington, DC 20006 Successor Agency to the Richmond (202) 540-7200 Community Redevelopment Agency, Riverside Public Financing Authority, Attorneys for Plaintiffs-Appellants City David E. Sundstrom, East Bay of New Britain, Mayor and City Council Municipal Utility District, and of Baltimore, Vistra Energy Regents of the University of Corporation, Yale University, and California Jennie Stuart Medical Center, Inc. 4 Case 17-1569, Document 444, 02/15/2018, 2237025, Page21 of 24 By: /s/ Karen L. Morris By: /s/ David E. Kovel KAREN L. MORRIS DAVID E. KOVEL PATRICK F. MORRIS ANDREW M. MCNEELA R. MICHAEL LINDSEY KIRBY MCINERNEY LLP MORRIS AND MORRIS LLC 825 Third Avenue COUNSELORS AT LAW New York, New York 10022 4023 Kennett Pike, #254 (212) 371-6600 Wilmington, Delaware 19807 – and – (302) 426-0400 CHRISTOPHER LOVELL – and – LOVELL STEWART HALEBIAN DAVID H. WEINSTEIN JACOBSON LLP ROBERT S. KITCHENOFF 61 Broadway, Suite 501 WEINSTEIN KITCHENOFF & New York, New York 10006 ASHER LLC (212) 608-1900 100 South Broad Street, Suite 705 Attorneys for Plaintiffs-Appellants Philadelphia, Pennsylvania 19110 Metzler Investment GmbH, Gary (215) 545-7200 Francis, 303030 Trading LLC, Attorneys for Plaintiffs-Appellants Atlantic Trading USA, LLC, FTC Ellen Gelboim and Linda Zacher Futures Fund PCC Ltd., FTC Futures Fund SICAV, and Nathaniel Haynes By: /s/ David C. Frederick DAVID C. FREDERICK ANDREW C. SHEN KELLOGG, HANSEN, TODD, FIGEL & FREDERICK, P.L.L.C. 1615 M Street, NW, Suite 400 Washington, DC 20036 (202) 326-7900 Attorneys for Plaintiff-Appellant National Credit Union Administration Board 5 Case 17-1569, Document 444, 02/15/2018, 2237025, Page22 of 24 By: /s/ Steig D. Olson By: /s/ Daniel L. Brockett STEIG D. OLSON DANIEL L. BROCKETT DANIEL L. BROCKETT STEIG D. OLSON DANIEL P. CUNNINGHAM DANIEL P. CUNNINGHAM QUINN EMANUEL URQUHART QUINN EMANUEL URQUHART & SULLIVAN, LLP & SULLIVAN, LLP 51 Madison Avenue, 22nd Floor 51 Madison Avenue, 22nd Floor New York, New York 10010 New York, New York 10010 (212) 849-7000 (212) 849-7000 – and – – and – JEREMY ANDERSEN JEREMY ANDERSEN QUINN EMANUEL URQUHART QUINN EMANUEL URQUHART & SULLIVAN, LLP & SULLIVAN, LLP 865 South Figueroa Street, 10th Floor 865 South Figueroa Street, 10th Floor Los Angeles, California 90017 Los Angeles, California 90017 (213) 443-3000 (213) 443-3000 Attorneys for Plaintiffs-Appellants Attorneys for Plaintiffs-Appellants The City of Philadelphia and the Prudential Investment Portfolios 2, Pennsylvania Intergovernmental Darby Financial Products, Capital Cooperation Authority Ventures International, and Salix Capital US Inc. 6 Case 17-1569, Document 444, 02/15/2018, 2237025, Page23 of 24 CERTIFICATE OF COMPLIANCE I hereby certify that: 1. This motion complies with the type-volume limitation of Federal Rule of Appellate Procedure 27(d)(2)(A) because it contains 509 words as counted by Microsoft Word 2016, the word-processing program used to prepare the motion; and 2. The motion complies with the typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) and the type-style requirements of Federal Rule of Appellate Procedure 32(a)(6), as the text appears in 14-point Times New Roman font, a proportionally spaced typeface. Dated: February 15, 2018 /s/ Eric Citron Eric Citron Case 17-1569, Document 444, 02/15/2018, 2237025, Page24 of 24 CERTIFICATE OF SERVICE I, Eric Citron, hereby certify that on February 15, 2018, I caused a copy of the foregoing motion to be served on all parties through the Court's CM/ECF system, which will send a notice of electronic filing to all counsel of record. /s/ Eric Citron Eric Citron

MOTION ORDER, granting motion to extend time until 03/16/2018 to file reply brief [{{444}}] filed by Appellant Charles Schwab & Co., Inc., Schwab Short-Term Bond Market Fund, Schwab Total Bond Market Fund, Schwab U.S. Dollar Liquid Assets Fund, Schwab Money Market Fund, Schwab Value Advantage Money Fund, Schwab Retirement Advantage Money Fund, Schwab Investor Money Fund, Schwab Cash Reserves, Schwab Advisor Cash Reserves, Schwab YieldPlus Fund, Charles Schwab Bank, N.A., Schwab YieldPlus Fund Liquidation Trust and The Charles Schwab Corporation, Appellant Ellen Gelboim and Linda Zacher, FILED. [2237696][449] [17-1569, 17-1915, 17-1989, 17-2056, 17-2343, 17-2347, 17-2351, 17-2352, 17-2360, 17-2376, 17-2381, 17-2383, 17-2413] [Entered: 02/16/2018 09:45 AM]

Case 17-1569, Document 449, 02/16/2018, 2237696, Page1 of 1 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT At a Stated Term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 16th day of February, two thousand and eighteen. _______________________________ Schwab Short-Term Bond Market Fund, et al., ORDER Plaintiffs-Appellants, Docket Nos. 17-1569(L), 17-1915(Con), v. 17-1989(Con), 17-2056(Con), 17-2343(Con), 17-2347(Con), 17-2351(Con), 17-2352(Con), Lloyds Banking Group plc, et al., 17-2360(Con), 17-2376(Con), 17-2381(Con), 17-2383(Con), 17-2413(Con). Defendants-Appellees. ________________________________ Plaintiffs-Appellants move for an extension of time, from February 26, 2018 to March 16, 2018, to file their reply briefs. Defendants-Appellees do not oppose. IT IS HEREBY ORDERED that the motion is GRANTED. For the Court: Catherine O'Hagan Wolfe, Clerk of Court

ORAL ARGUMENT STATEMENT LR 34.1 (a), on behalf of filer Attorney Neal Kumar Katyal, Esq. for Appellee HBOS plc and Lloyds Banking Group plc in 17-1569, FILED. Service date 02/16/2018 by CM/ECF. [2237803] [17-1569, 17-1915, 17-1989, 17-2056, 17-2343, 17-2347, 17-2351, 17-2352, 17-2360, 17-2376, 17-2381, 17-2383, 17-2413] [Entered: 02/16/2018 10:38 AM]

Case 17-1569, Document 450, 02/16/2018, 2237803, Page1 of 1 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ORAL ARGUMENT STATEMENT (Local Rule 34.1(a)) TO REQUEST ORAL ARGUMENT, FILL OUT THIS FORM AND FILE IT WITH THE CLERK WITHIN 14 DAYS AFTER THE FILING OF THE LAST APPELLEE BRIEF. IF THIS FORM IS NOT TIMELY FILED, YOU WILL NOT BE PERMITTED TO ARGUE IN PERSON. Short Title of Case: In re LIBOR-Based Financial Instruments Docket No.: 17-1569(L) Name of Party: Lloyds Banking Grp plc, HBOS plc Status of Party (e.g., appellant, cross-appellee, etc.): Defendants-Appellees Check one of the three options below: ✔ I want oral argument. An attorney whose preference depends on whether other attorneys will argue should consider conferring before I want oral argument only if requesting argument. After the appeal has been at least one other party does. scheduled for oral argument, a motion by counsel to forgo oral argument, even on consent, may be denied. I do not want oral argument. If no party wants oral argument, the case will be decided on the basis of the written briefs. If you want oral argument, you must appear in Court on the date set by the Court for oral argument. The Court may determ ine to decide a case without oral argument even if the parties request it. If you want oral argument, state the name of the person who will argue: Name: Neal Kumar Katyal (An attorney must be admitted to practice before the Court in accordance with Local Rule 46.1.) If you want oral argument, list any dates (including religious holidays), that fall in the interval from 6 to 20 weeks after the due date of this form, that the person who will argue is not available to appear in Court: April 9-30 (preparation for and oral argument in Trump v. Hawaii (U.S. Supreme Court 16-1540)); June 5-July 11 (international travel) ANYONE WHO WANTS TO ARGUE MUST UPDATE THE COURT IN WRITING OF ANY CHANGE IN AVAILABILITY. THE COURT MAY CONSIDER A FAILURE TO UPDATE ABOUT AVAILABILITY WHEN DECIDING A MOTION TO POSTPONE A SET ARGUMENT DATE. Filed by: Print Name: Neal Kumar Katyal Date: 02/16/2018 Signature: /s/Neal Kumar Katyal (Revised December 2011)

LETTER, on behalf of Appellee Barclays Bank PLC, Barclays Capital Inc. and Barclays PLC, regarding joint brief, RECEIVED. Service date 02/16/2018 by CM/ECF.[2237952] [17-1569] [Entered: 02/16/2018 11:37 AM]

Case 17-1569, Document 456, 02/16/2018, 2237952, Page1 of 1 TELEPHONE: 1-212-558-4000 125 Broad Street FACSIMILE: 1-212-558-3588 WWW.SULLCROM.COM New York, New York 10004-2498 ______________________ LOS ANGELES • PALO ALTO • WASHINGTON, D.C. BRUSSELS • FRANKFURT • LONDON • PARIS BEIJING • HONG KONG • TOKYO MELBOURNE • SYDNEY February 16, 2018 Via ECF Catherine O'Hagan Wolfe, Clerk of Court, United States Court of Appeals for the Second Circuit, Thurgood Marshall United States Courthouse, 40 Foley Square, New York, NY 10007. Re: In re LIBOR-Based Financial Instruments Antitrust Litigation, No. 17-1569(L) and consolidated cases Dear Ms. Wolfe: We represent defendant-appellees Barclays Bank plc, Barclays plc, and Barclays Capital Inc. (the "Barclays Defendants") in the above-referenced appeal. We write to inform the Court that, pursuant to Rule 28(i) of the Federal Rules of Appellate Procedure, the Barclays Defendants hereby join the Brief for Defendants-Appellees Regarding Personal Jurisdiction (Dkt. No. 424) and Barclays Bank plc hereby joins the Brief for Defendants-Appellees Regarding Antitrust Standing (Dkt. No. 425), which were filed by Defendant-Appellees HBOS plc and Lloyds Banking Group plc on February 12, 2018. Respectfully submitted, /s/ Matthew J. Porpora Matthew J. Porpora cc: All counsel of record (via ECF)

MOTION ORDER, referring motion to seal document [{{393}}] filed by Appellant Charles Schwab & Co., Inc., Schwab Short-Term Bond Market Fund, Schwab Total Bond Market Fund, Schwab U.S. Dollar Liquid Assets Fund, Schwab Money Market Fund, Schwab Value Advantage Money Fund, Schwab Retirement Advantage Money Fund, Schwab Investor Money Fund, Schwab Cash Reserves, Schwab Advisor Cash Reserves, Schwab YieldPlus Fund, Charles Schwab Bank, N.A., Schwab YieldPlus Fund Liquidation Trust and The Charles Schwab Corporation, Appellant Ellen Gelboim and Linda Zacher, FILED. [2239085][459] [17-1569, 17-1915, 17-1989, 17-2056, 17-2343, 17-2347, 17-2351, 17-2352, 17-2360, 17-2376, 17-2381, 17-2383, 17-2413] [Entered: 02/20/2018 12:47 PM]

Case 17-1569, Document 459, 02/20/2018, 2239085, Page1 of 1 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT At a Stated Term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 20th day of February, two thousand and eighteen. Before: Raymond J. Lohier, Jr., Circuit Judge. ________________________________ Schwab Short-Term Bond Market Fund, et al., ORDER Plaintiffs - Appellants, Docket No. 17-1569(L), 17-1915(con), 17- Carpenters Pension Fund of West Virginia, et 1989(con), 17-2056(con), 17-2343(con), 17- al., 2347(con), 17-2351(con), 17-2352(con), 17- 2360(con), 17-2376(con), 17-2381(con), 17- Plaintiffs, 2383, 17-2413(con) v. Lloyds Banking Group plc, et al., Defendants - Appellees, Credit Agricole S.A., et al., Defendants. ________________________________ Appellants moves for leave to file their brief under seal. However, Appellants have requested that the Court deny this motion. Appellees support the motion to file under seal. IT IS HEREBY ORDERED that the motion is REFERRED to the panel that will determine the merits of the appeal. For the Court: Catherine O'Hagan Wolfe, Clerk of Court

ORAL ARGUMENT STATEMENT LR 34.1 (a), on behalf of filer Attorney Mr. Thomas C. Goldstein, Esq. for Appellant Charles Schwab & Co., Inc., Charles Schwab Bank, N.A., Schwab Advisor Cash Reserves, Schwab Cash Reserves, Schwab Investor Money Fund, Schwab Money Market Fund, Schwab Retirement Advantage Money Fund, Schwab Short-Term Bond Market Fund, Schwab Total Bond Market Fund, Schwab U.S. Dollar Liquid Assets Fund, Schwab Value Advantage Money Fund, Schwab YieldPlus Fund, Schwab YieldPlus Fund Liquidation Trust and The Charles Schwab Corporation in 17-1569, Attorney Mr. Thomas C. Goldstein, Esq. for Appellant Ellen Gelboim and Linda Zacher in 17-1989, FILED. Service date 02/26/2018 by CM/ECF. [2244379] [17-1569, 17-1915, 17-1989, 17-2056, 17-2343, 17-2347, 17-2351, 17-2352, 17-2360, 17-2376, 17-2381, 17-2383, 17-2413] [Entered: 02/26/2018 06:45 PM]

Case 17-1569, Document 461, 02/26/2018, 2244379, Page1 of 1 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ORAL ARGUMENT STATEMENT (Local Rule 34.1(a)) TO REQUEST ORAL ARGUMENT, FILL OUT THIS FORM AND FILE IT WITH THE CLERK WITHIN 14 DAYS AFTER THE FILING OF THE LAST APPELLEE BRIEF. IF THIS FORM IS NOT TIMELY FILED, YOU WILL NOT BE PERMITTED TO ARGUE IN PERSON. Short Title of Case: In re LIBOR-Based Financial Instruments Docket No.: 17-1569 et al. Name of Party: Schwab Short-Term Bond Market Fund et al. Status of Party (e.g., appellant, cross-appellee, etc.): Plaintiffs-Appellants Check one of the three options below: ✔ I want oral argument. An attorney whose preference depends on whether other attorneys will argue should consider conferring before I want oral argument only if requesting argument. After the appeal has been at least one other party does. scheduled for oral argument, a motion by counsel to forgo oral argument, even on consent, may be denied. I do not want oral argument. If no party wants oral argument, the case will be decided on the basis of the written briefs. If you want oral argument, you must appear in Court on the date set by the Court for oral argument. The Court may determ ine to decide a case without oral argument even if the parties request it. If you want oral argument, state the name of the person who will argue: Name: Thomas C. Goldstein (An attorney must be admitted to practice before the Court in accordance with Local Rule 46.1.) If you want oral argument, list any dates (including religious holidays), that fall in the interval from 6 to weeks after the due date of this form, that the person who will argue is not available to appear in Court: April 27-28 and May 22-28 $1<21(:+2:$176 72 $5*8(0867 83'$7(7+(&2857,1:5,7,1* 2) $1< &+$1*(,1 $9$,/$%,/,7< 7+(&2857 0$< &216,'(5 $)$,/85(72 83'$7($%287 $9$,/$%,/,7<:+(1 '(&,',1* $ 027,21 72 3267321($ 6(7 $5*80(17 '$7(. Filed by: Print Name: Thomas C. Goldstein Date: Feb. 26, 2018 Signature: /s/ Thomas C. Goldstein 5HYLVHG 'HFHPEHU

ORAL ARGUMENT STATEMENT LR 34.1 (a), on behalf of filer Attorney Mr. Arun S. Subramanian for Appellant City of New Britain, Jennie Stuart Medical Center, Inc., Mayor and City Council of Baltimore, Vistra Energy Corporation and Yale University in 17-1569, FILED. Service date 02/26/2018 by email. [2244398] [17-1569, 17-1915, 17-1989, 17-2056, 17-2343, 17-2347, 17-2351, 17-2352, 17-2360, 17-2376, 17-2381, 17-2383, 17-2413] [Entered: 02/26/2018 09:19 PM]

Case 17-1569, Document 462, 02/26/2018, 2244398, Page1 of 1 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ORAL ARGUMENT STATEMENT (Local Rule 34.1(a)) TO REQUEST ORAL ARGUMENT, FILL OUT THIS FORM AND FILE IT WITH THE CLERK WITHIN 14 DAYS AFTER THE FILING OF THE LAST APPELLEE BRIEF. IF THIS FORM IS NOT TIMELY FILED, YOU WILL NOT BE PERMITTED TO ARGUE IN PERSON. Short Title of Case: In re LIBOR-Based Financial Instruments Docket No.: 17-1569 et al. Name of Party: Mayor & City Council of Baltimore, City of New Britain, Vistra Energy Corp., Yale University, Jennie Stuart Med. Ctr., Inc. Status of Party (e.g., appellant, cross-appellee, etc.): Check one of the three options below: ✔ I want oral argument. An attorney whose preference depends on whether other attorneys will argue should consider conferring before I want oral argument only if requesting argument. After the appeal has been at least one other party does. scheduled for oral argument, a motion by counsel to forgo oral argument, even on consent, may be denied. I do not want oral argument. If no party wants oral argument, the case will be decided on the basis of the written briefs. If you want oral argument, you must appear in Court on the date set by the Court for oral argument. The Court may determ ine to decide a case without oral argument even if the parties request it. If you want oral argument, state the name of the person who will argue: Name: Arun Subramanian (An attorney must be admitted to practice before the Court in accordance with Local Rule 46.1.) If you want oral argument, list any dates (including religious holidays), that fall in the interval from 6 to weeks after the due date of this form, that the person who will argue is not available to appear in Court: May 30, June 1, June 4-5 $1<21(:+2:$176 72 $5*8(0867 83'$7(7+(&2857,1:5,7,1* 2) $1< &+$1*(,1 $9$,/$%,/,7< 7+(&2857 0$< &216,'(5 $)$,/85(72 83'$7($%287 $9$,/$%,/,7<:+(1 '(&,',1* $ 027,21 72 3267321($ 6(7 $5*80(17 '$7(. Filed by: Print Name: Arun Subramanian Date: 2/26/2018 Signature: /s/ Arun Subramanian 5HYLVHG 'HFHPEHU

MOTION ORDER, granting motion for partial severance of the appeal as to Citibank, NA and Citigroup, Inc in docket number 17-1989 and remand the case to the district court for consideration of a settlement agreement [{{420}}] [{{420}}] filed by Appellant Ellen Gelboim and Linda Zacher. Appellants are directed to file a status update letter with the Court every 30 days beginning 30 days from the date of this order by DAL, FILED. [2244993][466] [17-1569, 17-1915, 17-1989, 17-2056, 17-2343, 17-2347, 17-2351, 17-2352, 17-2360, 17-2376, 17-2381, 17-2383, 17-2413] [Entered: 02/27/2018 01:17 PM]

Case 17-1569, Document 466, 02/27/2018, 2244993, Page1 of 1 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT At a Stated Term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 27th day of February, two thousand and eighteen. Before: Debra Ann Livingston, Circuit Judge. ________________________________ Schwab Short-Term Bond Market Fund, et al., ORDER Plaintiffs - Appellants, Docket No. 17-1569(L), 17-1915(con), 17- Carpenters Pension Fund of West Virginia, et 1989, 17-2056(con), 17-2343(con), 17- al., 2347(con), 17-2351(con), 17-2352(con), 17- 2360(con), 17-2376(con),17-2381(con), 17- Plaintiffs, 2383(con), 2413(con) v. Lloyds Banking Group plc, Bank of America Corporation, et al, Defendants - Appellees, Credit Agricole S.A., et al., Defendants. ________________________________ Appellants and Appellees Citibank, NA and Citigroup, Inc move for partial severance of the appeal as to Citibank, NA and Citigroup, Inc in docket number 17-1989. The parties further move to hold the severed appeal in abeyance and remand the case to the district court for consideration of a settlement agreement. IT IS HEREBY ORDERED that the motion is GRANTED. Appellants are directed to file a status update letter with the Court every 30 days beginning 30 days from the date of this order. For the Court: Catherine O'Hagan Wolfe, Clerk of Court

CERTIFIED ORDER, dated 02/27/2018, to SDNY (NEW YORK CITY), ISSUED.[2244999] [17-1569, 17-1915, 17-1989, 17-2056, 17-2343, 17-2347, 17-2351, 17-2352, 17-2360, 17-2376, 17-2381, 17-2383, 17-2413] [Entered: 02/27/2018 01:20 PM]

Case 17-1569, Document 467, 02/27/2018, 2244999, Page1 of 1 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT At a Stated Term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 27th day of February, two thousand and eighteen. Before: Debra Ann Livingston, Circuit Judge. ________________________________ Schwab Short-Term Bond Market Fund, et al., ORDER Plaintiffs - Appellants, Docket No. 17-1569(L), 17-1915(con), 17- Carpenters Pension Fund of West Virginia, et 1989, 17-2056(con), 17-2343(con), 17- al., 2347(con), 17-2351(con), 17-2352(con), 17- 2360(con), 17-2376(con),17-2381(con), 17- Plaintiffs, 2383(con), 2413(con) v. Lloyds Banking Group plc, Bank of America Corporation, et al, Defendants - Appellees, Credit Agricole S.A., et al., Defendants. ________________________________ Appellants and Appellees Citibank, NA and Citigroup, Inc move for partial severance of the appeal as to Citibank, NA and Citigroup, Inc in docket number 17-1989. The parties further move to hold the severed appeal in abeyance and remand the case to the district court for consideration of a settlement agreement. IT IS HEREBY ORDERED that the motion is GRANTED. Appellants are directed to file a status update letter with the Court every 30 days beginning 30 days from the date of this order. For the Court: Catherine O'Hagan Wolfe, Clerk of Court CERTIFIED COPY ISSUED ON 02/27/2018

FRAP 28(j) LETTER, dated 02/28/2018, on behalf of Appellee HBOS plc and Lloyds Banking Group plc, RECEIVED. Service date 02/28/2018 by CM/ECF.[2246713] [17-1569] [Entered: 02/28/2018 08:46 PM]

Case 17-1569, Document 470-1, 02/28/2018, 2246713, Page1 of 2 Hogan Lovells US LLP Columbia Square 555 Thirteenth Street, NW Washington, DC 20004 T +1 202 637 5600 F +1 202 637 5910 www.hoganlovells.com February 28, 2018 By CM/ECF Catherine O'Hagan Wolfe, Clerk of the Court Office of the Clerk United States Court of Appeals for the Second Circuit Thurgood Marshall U.S. Courthouse 40 Foley Square New York, New York 10007 Re: In re LIBOR-Based Financial Instruments Antitrust Litigation, No. 17-1569(L) (and consolidated cases) Dear Ms. Wolfe: Defendants submit this Court's decision in Charles Schwab Corp. v. Bank of America Corp., No. 16-1189 ("Schwab") under Fed. R. App. P. 28(j). Schwab arose from the same multi- district litigation and involved the same alleged conspiracy as this appeal, slip op. at 13-16, and it provides further support for defendants' arguments. Two of Schwab's holdings undercut plaintiffs' efforts to establish specific personal jurisdiction based on U.S. sales of LIBOR-based financial instruments. Schwab holds that such transactions lack any "causal relationship" to claims of LIBOR manipulation because the transactions "did not cause Defendants' . . . LIBOR submissions to the BBA in London, nor did the transactions in some other way give rise to claims seeking to hold Defendants liable for those submissions." Id. at 23. Schwab also holds that the transactions would not be "in furtherance of" the alleged LIBOR-manipulation conspiracy even if defendants had "conspired not only to manipulate LIBOR, but also 'to earn profits' from that manipulation." Absent allegations that "such sales [were] part of the alleged conspiracy," furthering "financial self-interest is not the same as furthering a conspiracy through [forum]-directed sales." Id. at 31-32. As with the LIBOR-manipulation claims in Schwab, plaintiffs' antitrust claims here are premised on defendants' alleged submission of suppressed LIBOR quotes. See Gelboim v. Bank of Am., 823 F.3d 759, 766 (2d Cir. 2016). Schwab forecloses plaintiffs' arguments that U.S. LIBOR-based transactions are causally related to their claims. And it rejects plaintiffs' suggestion that defendants' supposed "profit motive" renders such transactions jurisdictionally relevant acts "in furtherance" of the alleged conspiracy. See, e.g., Br. of Plts-Appellants 31. Hogan Lovells US LLP is a limited liability partnership registered in the District of Columbia. "Hogan Lovells" is an international legal practice that includes Hogan Lovells US LLP and Hogan Lovells International LLP, with offices in: Alicante Amsterdam Baltimore Beijing Brussels Caracas Colorado Springs Denver Dubai Dusseldorf Frankfurt Hamburg Hanoi Ho Chi Minh City Hong Kong Houston Johannesburg London Los Angeles Luxembourg Madrid Mexico City Miami Milan Minneapolis Monterrey Moscow Munich New York Northern Virginia Paris Perth Philadelphia Rio de Janeiro Rome San Francisco São Paulo Shanghai Silicon Valley Singapore Sydney Tokyo Ulaanbaatar Warsaw Washington DC Associated offices: Budapest Jakarta Jeddah Riyadh Zagreb. For more information see www.hoganlovells.com Case 17-1569, Document 470-1, 02/28/2018, 2246713, Page2 of 2 -2- February 28, 2018 Schwab separately disposes of plaintiffs' contention that the allegedly "obvious and direct" in-forum effects of LIBOR manipulation satisfy the so-called "effects" test of personal jurisdiction. Slip op. at 32. And it holds that the alleged impact of LIBOR manipulation on fixed-rate instruments is too attenuated to support a fraud claim, id. at 41-45, gutting Schwab's efforts to establish antitrust standing as to such instruments here. Defendants reserve the right to seek leave to file a surreply should plaintiffs' reply brief (due March 16) raise new arguments based on Schwab. Respectfully submitted, /s/ Neal Kumar Katyal Neal Kumar Katyal Counsel for Defendants-Appellees Lloyds Banking Group plc and HBOS plc cc: All counsel of record (via CM/ECF) Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page1 Page1ofof64 64 16-1189-cv Charles Schwab Corp., et al. v. Bank of America Corp., et al. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2017 Argued: September 25, 2017 Decided: February 23, 2018 No. 16-1189-cv CHARLES SCHWAB CORPORATION, CHARLES SCHWAB BANK, N.A., CHARLES SCHWAB & CO., INC., SCHWAB SHORT-TERM BOND MARKET FUND, SCHWAB TOTAL BOND MARKET FUND, SCHWAB U.S. DOLLAR LIQUID ASSETS FUND, SCHWAB MONEY MARKET FUND, SCHWAB VALUE ADVANTAGE MONEY FUND, SCHWAB RETIREMENT ADVANTAGE MONEY FUND, SCHWAB INVESTOR MONEY FUND, SCHWAB CASH RESERVES, SCHWAB ADVISOR CASH RESERVES, SCHWAB YIELDPLUS FUND, SCHWAB YIELDPLUS FUND LIQUIDATION TRUST, Plaintiffs-Appellants, FTC CAPITAL GMBH, FTC FUTURES FUND PCC LTD, FTC FUTURES FUND SICAV, CARPENTERS PENSION FUND OF WEST VIRGINIA, CITY OF DANIA BEACH POLICE & FIREFIGHTERS' RETIREMENT SYSTEM, RAVAN INVESTMENTS, LLC, MAYOR AND CITY COUNCIL OF BALTIMORE, RICHARD HERSHEY, JEFFREY LAYDON, METZLER INVESTMENT GMBH, ROBERTO CALLE GRACEY, CITY OF NEW BRITAIN FIREFIGHTERS' AND POLICE BENEFIT FUND, AVP PROPERTIES, LLC, 303030 TRADING LLC, ELLEN GELBOIM, ATLANTIC TRADING USA, LLC, COMMUNITY BANK & TRUST, THE BERKSHIRE BANK, ELIZABETH LIEBERMAN, 33-35 GREEN POND ROAD ASSOCIATES, LLC, TODD AUGENBAUM, GARY FRANCIS, NATHANIEL HAYNES, COURTYARD AT AMWELL II, LLC, GREENWICH COMMONS II, LLC, JILL COURT ASSOCIATES II, LLC, MAIDENCREEK VENTURES II LP, RARITAN COMMONS, LLC, LAWRENCE W. GARDNER, ANNIE BELL ADAMS, DENNIS PAUL FOBES, LEIGH E. FOBES, GOVERNMENT CERTIFIED COPY ISSUED ON 02/23/2018 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page2 Page2ofof64 64 DEVELOPMENT BANK FOR PUERTO RICO, MARGARET LAMBERT, DIRECTORS FINANCIAL GROUP, BETTY L. GUNTER, DIRECT ACTION PLAINTIFFS, CARL A. PAYNE, KENNETH W. COKER, CITY OF RIVERSIDE, THE RIVERSIDE PUBLIC FINANCING AUTHORITY, EAST BAY MUNICIPAL UTILITY DISTRICT, COUNTY OF SAN MATEO, SAN MATEO COUNTY JOINT POWERS FINANCING AUTHORITY, CITY OF RICHMOND, THE RICHMOND JOINT POWERS FINANCING AUTHORITY, SUCCESSOR AGENCY TO THE RICHMOND COMMUNITY REDEVELOPMENT AGENCY, COUNTY OF SAN DIEGO, GUARANTY BANK & TRUST COMPANY, HEATHER M. EARLE, HENRY K. MALINOWSKI, LINDA CARR, ERIC FRIEDMAN, COUNTY OF RIVERSIDE, JERRY WEGLARZ, NATHAN WEGLARZ, SEIU PENSION PLANS MASTER TRUST, HIGHLANDER REALTY, LLC, JEFFREY D. BUCKLEY, THE FEDERAL HOME LOAN MORTGAGE CORPORATION, COUNTY OF SONOMA, DAVID E. SUNDSTROM, in his official capacity as Treasurer of the County of Sonoma for and on behalf of the Sonoma County Treasury Pool Investment, THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, SAN DIEGO ASSOCIATION OF GOVERNMENTS, CEMA JOINT VENTURE, COUNTY OF SACRAMENTO, THE CITY OF PHILADELPHIA, THE PENNSYLVANIA INTERGOVERNMENTAL COOPERATION AUTHORITY, PRINCIPAL FUNDS, INC., PFI BOND & MORTGAGE SECURITIES FUND, PFI BOND MARKET INDEX FUND, PFI CORE PLUS BOND I FUND, PFI DIVERSIFIED REAL ASSET FUND, PFI EQUITY INCOME FUND, PFI GLOBAL DIVERSIFIED INCOME FUND, PFI GOVERNMENT & HIGH QUALITY BOND FUND, PFI HIGH YIELD FUND, PFI HIGH YIELD FUND I, PFI INCOME FUND, PFI INFLATION PROTECTION FUND, PFI SHORT-TERM INCOME FUND, PFI MONEY MARKET FUND, PFI PREFERRED SECURITIES FUND, PRINCIPAL VARIABLE CONTRACTS FUNDS, INC., PVC ASSET ALLOCATION ACCOUNT, PVC MONEY MARKET ACCOUNT, PVC BALANCED ACCOUNT, PVC BOND & MORTGAGE SECURITIES ACCOUNT, PVC EQUITY INCOME ACCOUNT, PVC GOVERNMENT HIGH QUALITY BOND ACCOUNT, PVC INCOME ACCOUNT, PVC SHORTTERM INCOME ACCOUNT, PRINCIPAL FINANCIAL GROUP, INC., PRINCIPAL FINANCIAL SERVICES, INC., PRINCIPAL LIFE INSURANCE COMPANY, PRINCIPAL CAPITAL INTEREST ONLY I, LLC, PRINCIPAL COMMERCIAL FUNDING, LLC, PRINCIPAL COMMERCIAL FUNDING II, LLC, PRINCIPAL REAL ESTATE INVESTORS, LLC, TEXAS COMPETITIVE ELECTRIC HOLDINGS COMPANY LLC, NATIONAL CREDIT UNION ADMINISTRATION BOARD, as Liquidating Agent of U.S. Central Federal Credit Union, Western Corporate Federal Credit Union, Members United Corporate Federal Credit Union, Southwest Corporate Federal Credit Union, and Constitution Corporate Federal Credit Union, FEDERAL NATIONAL MORTGAGE 2 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page3 Page3ofof64 64 ASSOCIATION, DARBY FINANCIAL PRODUCTS, CAPITAL VENTURES INTERNATIONAL, BAY AREA TOLL AUTHORITY, PRUDENTIAL INVESTMENT PORTFOLIOS 2, on behalf of Prudential Core Short-Term Bond Fund, PRUDENTIAL CORE TAXABLE MONEY MARKET FUND, TRIAXX PRIME CDO 2006-1, LTD., TRIAXX PRIME CDO 2006-2, LTD., TRIAXX PRIME CDO 2007-1, LTD., THE FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver, DIRECT ACTION PLAINTIFF, DIRECT ACTION PLAINTIFFS, SALIX CAPITAL US INC., FRAN P. GOLDSLEGER, JOSEPH AMABILE, LOUIE AMABILE, NORMAN BYSTER, MICHAEL CAHILL, RICHARD DEOGRACIAS, MARC FEDERIGHI, SCOTT FEDERIGHI, ROBERT FURLONG, DAVID GOUGH, BRIAN HAGGERTY, DAVID KLUSENDORF, RONALD KRUG, CHRISTOPHER LANG, JOHN MONCKTON, PHILIP OLSON, BRETT PANKAU, DAVID VECHHIONE, RANDALL WILLIAMS, EDUARDO RESTANI, NICHOLAS PESA, JOHN HENDERSON, 303 PROPRIETARY TRADING LLC, MARGERY TELLER, CALIFORNIA PUBLIC PLAINTIFFS, NATIONAL ASBESTOS WORKERS PENSION FUND, PENSION TRUST FOR OPERATING ENGINEERS, HAWAII ANNUITY TRUST FUND FOR OPERATING ENGINEERS, CEMENT MASONS' INTERNATIONAL ASSOCIATION EMPLOYEES' TRUST FUND, AXIOM INVESTMENT ADVISORS, LLC, AXIOM HFT LLC, AXIOM INVESTMENT ADVISORS HOLDINGS L.P., AXIOM INVESTMENT COMPANY, LLC, AXIOM INVESTMENT COMPANY HOLDINGS L.P., AXIOM FX INVESTMENT FUND, L.P., AXIOM FX INVESTMENT FUND II, L.P., AXIOM FX INVESTMENT 2X FUND, L.P., EPHRAIM F. GILDOR, GILDOR FAMILY ADVISORS L.P., GILDOR FAMILY COMPANY L.P., GILDOR MANAGEMENT, LLC, CITY OF PHILDAELPHIA, PENNSYLVANIA INTERGOVERNMENTAL COOPERATION AUTHORITY, CITY OF NEW BRITAIN, LINDA ZACHER, Plaintiffs, — v. — BANK OF AMERICA CORPORATION, BANK OF AMERICA, N.A., BANK OF TOKYO- MITSUBISHI UFJ, LTD., BARCLAYS BANK PLC, CITIGROUP INC., CITIBANK, N.A., COOPERATIEVE CENTRALE RAIFFEISENBOERENLEENBANK B.A., CREDIT SUISSE GROUP AG, DEUTSCHE BANK AG, HSBC HOLDINGS PLC, HSBC BANK PLC, JPMORGAN CHASE & CO., JPMORGAN CHASE BANK, N.A., LLOYDS BANKING GROUP PLC, HBOS PLC, ROYAL BANK OF CANADA, THE NORINCHUKIN BANK, THE ROYAL BANK OF SCOTLAND GROUP PLC, UBS AG, PORTIGON AG, FKA WESTLB AG, WESTDEUTSCHE IMMOBILIENBANK AG, 3 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page4 Page4ofof64 64 Defendants-Appellees, RABOBANK GROUP, CREDIT SUISSE GROUP, NA, SOCIETE GENERALE, DEUTSCHE BANK FINANCIAL LLC, DEUTSCHE BANK SECURITIES INCORPORATED, BARCLAYS CAPITAL INC., BARCLAYS U.S. FUNDING LLC, CREDIT SUISSE SECURITIES (USA) LLC,BANK OF AMERICA SECURITIES LLC, J.P. MORGAN CLEARING CORP., HSBC SECURITIES (USA) INC., UBS SECURITIES LLC, CITIGROUP GLOBAL MARKETS INC., NATIONAL ASSOCIATION, BANK OF NOVA SCOTIA, BNP PARIBAS S.A., CREDIT AGRICOLE, S.A., SUMITOMO MITSUI BANKING CORPORATION, BARCLAYS PLC, WESTLB AG,CHASE BANK USA, N.A., ROYAL BANK OF SCOTLAND PLC, NATIONAL COLLEGIATE STUDENT LOAN TRUST 2007-1, CITIZENS BANK OF MASSACHUSETTS, agent of RBS Citizens Bank, NA, RBS Citizens, N.A., (f/k/a Citizens Bank of Massachusetts) incorrectly sued as Charter One Bank NA, STEPHANIE NAGEL, BRITISH BANKERS' ASSOCIATION, BBA ENTERPRISES, LTD., BBA LIBOR, LTD., CREDIT SUISSE INTERNATIONAL, HSBC BANK USA, N.A., LLOYDS TSB BANK PLC, J.P. MORGAN BANK DUBLIN PLC, formerly known as Bear Stearns Bank PLC, UBS LIMITED, CITIGROUP FINANCIAL PRODUCTS INC., ICAP PLC, CREDIT SUISSE AG, CREDIT SUISSE (USA), INC., THE HONGKONG AND SHANGHAI BANKING CORPORATION, LTD., J.P. MORGAN MARKETS LTD., LLOYDS BANK PLC, (formerly known as Lloyds TSB Bank PLC), RBC CAPITAL MARKETS, LLC, BANK OF AMERICA HOME LOANS, CITI SWAPCO INC., J.P. MORGAN SECURITIES, LLC, MERRILL LYNCH CAPITAL SERVICES, INC., MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, RBS SECURITIES INC., CITIGROUP GLOBAL MARKETS LIMITED, CITIGROUP FUNDING, INC., HSBC FINANCE CORPORATION, HSBC USA, INC., MERRILL LYNCH & CO., INC., MERRILL LYNCH INTERNATIONAL BANK, LTD., BEAR STEARNS CAPITAL MARKETS, INC., CITIZENS BANK N.A., CREDIT SUISSE SECURITIES (USA) INC., BARCLAYS CAPITAL (CAYMAN) LIMITED, SOCIETE GENERALE, S.A. Defendants. 4 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page5 Page5ofof64 64 B e f o r e: LIVINGSTON, LYNCH, and CHIN, Circuit Judges. Plaintiffs-Appellants appeal from a judgment entered by the United States District Court for the Southern District of New York (Naomi Reice Buchwald, J.) on April 11, 2016, dismissing their complaint. This case is one of dozens seeking to recover for harm allegedly resulting from a conspiracy among Defendants- Appellees, major banks, to manipulate the London Interbank Offered Rate, a set of benchmark interest rates that inform trillions of dollars of financial transactions. On appeal, Plaintiffs contend that the district court erred in dismissing its state-law claims on personal jurisdiction grounds, and in dismissing its claims for fraud, violation of the Securities Exchange Act, and unjust enrichment for failure to state a claim. Because we find that certain Defendants' actions in selling financial products to Plaintiffs give rise to personal jurisdiction, that other Defendants may be subject to personal jurisdiction as a result of the acts of their agents or co-conspirators, and that certain claims were prematurely dismissed at the pleading stage, we AFFIRM IN PART, VACATE IN PART, and REMAND for further proceedings. THOMAS C. GOLDSTEIN (Eric F. Citron, on the brief), Goldstein & Russell, P.C., Bethesda, Maryland, for Plaintiffs-Appellants. NEAL KUMAR KATYAL (Eugene A. Sokoloff, Marc J. Gottridge, Lisa J. Fried, Benjamin A. Fleming, on the brief), Hogan Lovells US LLP, Washington, D.C., for Defendants-Appellees Lloyds Banking Group plc and HBOS plc (additional counsel for the many parties and amici are listed in Appendix A). 5 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page6 Page6ofof64 64 GERARD E. LYNCH, Circuit Judge: This case is one of dozens seeking to recover for harm allegedly resulting from a conspiracy among major banks to manipulate the London Interbank Offered Rate ("LIBOR"), a set of benchmark interest rates that affect financial transactions worth trillions of dollars. Plaintiffs-Appellants Charles Schwab Corporation, Charles Schwab Bank, N.A., Charles Schwab & Co., Inc., Schwab Short-Term Bond Market Fund, Schwab Total Bond Market Fund, Schwab U.S. Dollar Liquid Assets Fund, Schwab Money Market Fund, Schwab Value Advantage Money Fund, Schwab Retirement Advantage Money Fund, Schwab Investor Money Fund, Schwab Cash Reserves, Schwab Advisor Cash Reserves, Schwab YieldPlus Fund, and Schwab YieldPlus Fund Liquidation Trust (collectively, "Schwab") claim to have suffered damages in connection with their purchase of hundreds of billions of dollars in debt securities. Defendants-Appellees are the banks allegedly responsible. They are Bank of America Corporation and Bank of America, N.A. (together, "Bank of America"), Bank of Tokyo-Mitsubishi UFJ, Ltd. ("Bank of Tokyo"), Barclays Bank PLC ("Barclays"), Citigroup Inc. and Citibank, N.A. (together, "Citibank"), Coöperatieve Centrale Raiffeisen Boerenleenbank B.A. ("Rabobank"), Credit 6 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page7 Page7ofof64 64 Suisse Group AG ("Credit Suisse"), Deutsche Bank AG ("Deutsche Bank"), HSBC Holdings plc and HSBC Bank plc (together, "HSBC"), JPMorgan Chase & Co. and JPMorgan Chase Bank (together, "JPMorgan Chase"), Lloyds Banking Group plc ("Lloyds"), HBOS plc ("HBOS"), the Norinchukin Bank ("Norinchukin"), Portigon AG and Westdeutsche ImmobilienBank AG (together, "WestLB"), Royal Bank of Canada ("RBC"), Royal Bank of Scotland Group plc ("RBS"), and UBS AG ("UBS") (collectively, "Defendants"). The United States District Court for the Southern District of New York (Naomi Reice Buchwald, J.) dismissed Schwab's state-law claims for lack of personal jurisdiction, and dismissed both federal and certain state-law claims for failure to state a claim. Schwab challenges the dismissal of all of its state-law claims on personal jurisdiction grounds, and the dismissal of certain of its claims on the merits. For the reasons that follow, we AFFIRM IN PART, VACATE IN PART, and REMAND for proceedings consistent with this opinion. BACKGROUND I. Factual Background LIBOR is a set of benchmark interest rates that approximate the average rate at which major banks can borrow money. LIBOR, which is published daily, 7 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page8 Page8ofof64 64 is used as a reference point in determining interest rates for financial instruments across the world. The British Bankers' Association ("BBA"), a London-based trade association for the financial services industry, oversaw LIBOR during the relevant period. It calculated LIBOR in various currencies for different maturities (e.g., one month, three months, six months) based on the submissions of member banks sitting on panels designated for a particular currency. Every day, panel members would answer the question: "At what rate could you borrow funds, were you to do so by asking for and then accepting inter-bank offers in a reasonable market size just prior to 11 am?" J.A. 767. The published rates for the U.S. Dollar LIBOR were pegged to the mean of 16 panel members' quotes, after excluding the four highest and four lowest submissions. Defendants are banks that sat on the U.S. Dollar LIBOR panel. According to Schwab, between August 2007 and May 2010, Defendants continuously misrepresented their borrowing costs to the BBA, and their false submissions caused LIBOR to be artificially suppressed. By understating their true borrowing costs, Defendants were able to project an image of financial stability to investors who were sensitive to risks associated with major banks following the financial 8 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page9 Page9ofof64 64 crisis that began in 2007. Suppressing LIBOR also had the immediate effect of lowering Defendants' interest payment obligations on financial instruments tied to LIBOR. Defendants allegedly conspired together to manipulate LIBOR. See Gelboim v. Bank of Am. Corp., 823 F.3d 759, 765–67 (2d Cir. 2016). Schwab invested in billions of dollars' worth of debt securities during the alleged LIBOR suppression period. Defendants' LIBOR manipulation allegedly harmed Schwab in connection with two types of financial products — floating- rate instruments and fixed-rate instruments — which it purchased exclusively through its trading desk in California. A floating-rate instrument is a debt instrument that pays out interest tied to an external benchmark, such as LIBOR, that varies over time. Because Schwab held floating-rate instruments that were tied to LIBOR, Defendants' manipulation of LIBOR allegedly caused Schwab to receive lower returns than it would have had LIBOR reflected Defendants' true borrowing costs. A fixed-rate instrument, in contrast, pays out the same amount of interest based on a fixed interest rate such that changes in LIBOR or other external benchmark interest rates do not affect the amount of interest that the instrument pays out. Schwab alleges, however, that when "considering whether to purchase 9 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page10 Page10ofof64 64 a fixed-rate instrument, [it] evaluated the difference (or 'spread') between the offered rate [on the fixed-rate instrument] and LIBOR." J.A. 867. Because "suppressing LIBOR would always, and obviously, tend to suppress the rates of return on fixed-rate instruments by making lower rates of return relatively more attractive," Schwab allegedly received lower returns on fixed-rate instruments than it would have if LIBOR had been properly set. Id. Schwab did not purchase debt instruments from all Defendants. Defendants can be divided into three groups relative to Schwab's purchases. First, Defendants HSBC, Citibank, Deutsche Bank, JPMorgan Chase, and UBS (the "direct seller Defendants") allegedly solicited and sold debt instruments directly to Schwab in California. The volume of these direct-sales transactions was significant: Schwab alleges that it purchased more than $1.8 billion in floating-rate instruments, and more than $174.8 billion in fixed rate instruments from these direct seller Defendants. Second, Defendants Bank of America, Barclays, Credit Suisse, RBC, and RBS (the "indirect seller Defendants") allegedly sold debt instruments indirectly 10 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page11 Page11ofof64 64 to Schwab, through "broker-dealer subsidiaries or affiliates."1 J.A. 868. Schwab identifies a non-exhaustive list of seventeen broker-dealer subsidiaries or affiliates, and alleges that the indirect seller Defendants "controlled or otherwise directed or materially participated in the operations of those broker-dealers, [and] reaped proceeds or other financial benefits from the broker-dealers' sales of LIBOR-based financial instruments, including but not limited to instances where [the indirect seller] Defendants issued the LIBOR-based financial instruments that were then sold by their broker-dealer subsidiaries or affiliates." J.A. 868. Schwab claims to have purchased more than $5.7 billion in floating-rate instruments and $222.7 billion in fixed-rate instruments from Defendants' broker- dealers. Finally, Defendants Bank of Toyko, Lloyds, HBOS plc, Norinchukin, Rabobank, and WestLB (the "non-seller Defendants") are not alleged to have sold financial instruments to Schwab at all. Their principal connection to this case, therefore, is that they allegedly conspired with the other Defendants to manipulate LIBOR to Schwab's detriment. 1 Schwab alleges that direct seller Defendants Citibank, Deutsche Bank, and UBS also sold instruments to Schwab through affiliated broker-dealers. 11 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page12 Page12ofof64 64 In total, Schwab alleges that Defendants' LIBOR manipulation caused it economic harm in connection with $665 billion in transactions. More than $40 billion of the floating-rate and fixed-rate instruments Schwab purchased were issued by Bank of America, Citibank, Credit Suisse, Deutsche Bank, HSBC, JPMorgan Chase, Norinchukin, RBC, RBS, Rabobank, or UBS. Based on Defendants' allegedly false submissions to the BBA as well as their fraudulent representations and omissions in connection with Schwab's purchase of the subject debt instruments, Schwab filed the present case. It asserts thirteen distinct causes of action: fraud; aiding and abetting fraud; unfair business practices under the California Business and Professions Code; interference with prospective economic advantage; breach of the implied covenant of good faith and fair dealing; violation of §§ 25400 and 25401 of the California Corporations Code; rescission of contract; unjust enrichment; violation of section 10(b) of the Securities Exchange Act; violation of section 20(a) of the Securities Exchange Act; violation of section 11 of the Securities Act of 1933; violation of section 12(a)(2) of the Securities Act of 1933; and violation of section 15 of the Securities Act of 1933. 12 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page13 Page13ofof64 64 II. Procedural History The present case is not the first in which Schwab has pursued claims relating to LIBOR manipulation. In August 2011, the various Schwab entities filed three actions against the same defendants named here. Those actions were consolidated in a Southern District of New York multidistrict litigation (the "LIBOR MDL") established to manage pretrial proceedings in lawsuits against banks that allegedly manipulated LIBOR and defrauded purchasers of LIBOR- based financial instruments. See In re Libor–Based Fin. Instruments Antitrust Litig., 802 F. Supp. 2d 1380 (J.P.M.L. 2011). Following transfer of Schwab's 2011 complaints to the LIBOR MDL, the defendants moved to dismiss them. The district court, in relevant part, dismissed Schwab's federal antitrust claims for failure to plead antitrust injury and, in the absence of any live federal claims, declined to exercise supplemental jurisdiction over Schwab's state common-law causes of action. In re LIBOR-Based Fin. Instruments Antitrust Litig., 935 F. Supp. 2d 666, 686, 736 (S.D.N.Y. 2013) ("LIBOR I"). We later vacated that dismissal. Gelboim, 823 F.3d at 783, cert. denied, 137 S. Ct. 814 (2017). We held that Schwab had plausibly alleged antitrust injury and rejected the defendants' alternative argument that we should affirm the dismissal 13 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page14 Page14ofof64 64 on the ground that Schwab had failed to plead the existence of a conspiracy among the defendant banks to manipulate LIBOR. Id. at 772, 781–82. In April 2013, while the antitrust appeal was pending, Schwab commenced the present case in state court in California. Schwab reasserted the common-law claims over which the district court had previously declined to exercise supplemental jurisdiction, and added new federal and state causes of action. The case was promptly removed to federal court, and it too was then transferred to the LIBOR MDL. In November 2014, Defendants, together with 28 other entities defending against claims of LIBOR manipulation, moved to dismiss the complaints in 27 cases, including Schwab's, for lack of personal jurisdiction and for failure to state a claim. Fed. R. Civ. P. 12(b)(2), (6). The moving defendants filed a 98-page appendix listing the claims for which they sought dismissal, and filed seven supporting memoranda of law. Only one of those — Defendants' Memorandum of Law in Support of Defendants' Motion to Dismiss the Schwab Plaintiffs' Securities Claims — was specifically directed toward Schwab's complaint. Schwab and the other plaintiffs requested permission to file individual oppositions to the motion, but were directed to, and ultimately did, file their 14 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page15 Page15ofof64 64 responses jointly. Schwab was permitted to file a memorandum of law specifically responding to Defendants' memorandum addressing Schwab's federal securities claims. The district court issued a herculean 436-page decision that endeavored to sort through the innumerable issues that the motion raised — a task complicated by the fact that the various cases differed in the claims asserted, the allegations pled, the forum of origin, and the applicable state law. See In re LIBOR-Based Fin. Instruments Antitrust Litig., No. 11 MDL 2262 NRB, 2015 WL 6243526 (S.D.N.Y. Oct. 20, 2015) ("LIBOR IV"), on reargument in part, 2016 WL 1301175 (Mar. 31, 2016), and reconsideration denied, 2017 WL 946338 (Feb. 16, 2017). In several parts of its decision, the district court did not focus on the particulars of any one complaint and, instead, set out broad-stroke conclusions explaining why certain classes of claims would be dismissed. In regards to personal jurisdiction, the district court directed the parties to agree on which portions of which complaints fell within the categories of claims that, applying the district court's reasoning, should be dismissed. As will be seen, this approach, understandably adopted by the district court to manage the enormously complex litigation before it, somewhat complicates our task on appeal. 15 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page16 Page16ofof64 64 Schwab's complaint was dismissed in its entirety. The district court dismissed all of Schwab's state-law claims for lack of personal jurisdiction, and dismissed Schwab's Securities Exchange Act claims for failure to state a claim.2 The court alternatively held that many of Schwab's state-law claims should be dismissed on the merits.3 The district court further found that the unjust enrichment claims were partially time-barred. This appeal followed. 2 Schwab abandoned its other federal claims, under the Securities Act, before the district court issued its decision. 3 Based on our interpretation of the district court's broad-stroke conclusions and without the benefit of extensive briefing on the issue, the district court likely did not dismiss the following state-law claims on the merits: (1) Schwab's fraud claims insofar as they either concerned a contractual counterparty's omissions in the course of floating-rate instrument transactions, or concerned false LIBOR submissions that were made by Defendants in London and relied upon in entering transactions involving floating-rate instruments; (2) Schwab's aiding and abetting fraud claims; (3) Schwab's claims for interference with prospective economic advantage insofar as Defendants "knew of a specific contract and knew to a substantial certainty that its conduct would induce a breach, or. . . specifically intended to induce a breach of a category of contracts," LIBOR IV, 2015 WL 6243526, at *82; (4) Schwab's claims for breach of the implied covenant of good faith and fair dealing insofar as they were alleged against contractual counterparties; and (5) Schwab's claims for unjust enrichment insofar as they were alleged against counterparties or a wrongdoer's affiliates. Accordingly, to the extent those claims survived on the merits, they were dismissed solely based on the district court's conclusion that it lacked personal jurisdiction over Defendants. See infra 21–22 & n.5. 16 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page17 Page17ofof64 64 DISCUSSION We review de novo a district court's decision to grant motions under Rule 12(b)(2) and 12(b)(6). Licci v. Lebanese Canadian Bank, SAL, 732 F.3d 161, 167 (2d Cir. 2013); City of Pontiac Gen. Employees' Ret. Sys. v. MBIA, Inc., 637 F.3d 169, 173 (2d Cir. 2011). On appeal, Schwab argues that the district court erred (1) in dismissing its state-law claims for lack of personal jurisdiction; (2) in dismissing its fraud claims relating to transactions in fixed-rate instruments for failure to state a claim; (3) in dismissing its Securities Exchange Act claims for failure to state a claim; and (4) in partially dismissing its unjust enrichment claims as untimely. I. Dismissal of State-Law Claims for Lack of Personal Jurisdiction Schwab first challenges the district court's dismissal of all of its state-law claims for lack of personal jurisdiction. To defeat a motion to dismiss for lack of personal jurisdiction, a plaintiff "must make a prima facie showing that jurisdiction exists. Such a showing entails making legally sufficient allegations of jurisdiction, including an averment of facts that, if credited[,] would suffice to establish jurisdiction over the defendant." Penguin Grp. (USA) Inc. v. Am. Buddha, 609 F.3d 30, 34–35 (2d Cir. 17 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page18 Page18ofof64 64 2010) (internal quotation marks and citation omitted; alteration in original). A plaintiff must have a state-law statutory basis for jurisdiction and demonstrate that the exercise of personal jurisdiction comports with due process. Licci, 732 F.3d at 168. Defendants do not contest Schwab's statutory basis for personal jurisdiction under California state law. The due process analysis proceeds in two steps. First, courts "evaluate the quality and nature of the defendant's contacts with the forum state under a totality of the circumstances test. Where the claim arises out of, or relates to, the defendant's contacts with the forum — i.e., specific jurisdiction is asserted — minimum contacts necessary to support such jurisdiction exist where the defendant purposefully availed itself of the privilege of doing business in the forum and could foresee being haled into court there." Id. at 170 (internal quotations marks, citation, and brackets omitted). Second, once minimum contacts are established, a court considers those contacts "in light of other factors to determine whether the assertion of personal jurisdiction would comport with fair play and substantial justice." Id. at 170 (internal quotation marks omitted). The district court did not find that considerations of fair play and substantial justice provided an alternative basis for dismissal, and Defendants do not argue 18 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page19 Page19ofof64 64 that they provide an alternative basis for affirmance. Accordingly, only the first step of the due process inquiry is at issue here. Schwab asserts three principal theories of personal jurisdiction: (1) transactions in California give rise to personal jurisdiction over both the direct and indirect seller Defendants, and jurisdiction, therefore, also lies as to the non- seller co-conspirator Defendants4; (2) Defendants' LIBOR manipulation in London was expressly aimed at California, satisfying the so-called "effects test" for personal jurisdiction; and (3) personal jurisdiction with respect to Schwab's Securities Exchange Act claims allows for pendent personal jurisdiction with respect to Schwab's state-law claims. Schwab alternatively argues that Defendants forfeited their personal jurisdiction defense. As explained below, we agree with Schwab's arguments in part and further find that Schwab should be granted leave to amend to add certain 4 Because Schwab initiated this action in California, California is the relevant forum for jurisdictional purposes. In the case of a MDL transfer, the "transferee judge has all the jurisdiction and powers over pretrial proceedings in the actions. . . that the transferor judge would have had in the absence of transfer." In re Agent Orange Prod. Liab. Litig. MDL No. 381, 818 F.2d 145, 163 (2d Cir. 1987) (citation omitted). We nonetheless apply our "interpretations of federal law, not the constructions of federal law of the transferor circuit." Menowitz v. Brown, 991 F.2d 36, 40 (2d Cir. 1993). 19 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page20 Page20ofof64 64 jurisdictional allegations. A. Personal Jurisdiction Arising from Transactions in California 1. Direct Seller Defendants Schwab argues that jurisdiction exists over the direct seller Defendants as a result of "their solicitation of Schwab in California and their actual sales of LIBOR-based instruments to Schwab in that forum." Appellants' Br. 23. Allegations of billions of dollars in transactions in California easily make out a prima facie showing of personal jurisdiction for claims relating to those transactions. In Chloe v. Queen Bee of Beverly Hills, LLC, for instance, we held that there was personal jurisdiction over a defendant in a trademark action based on allegations that the defendant offered bags for sale to New York consumers on a website and sold "at least one counterfeit Chloé bag" to a New Yorker in the process. 616 F.3d 158, 171 (2d Cir. 2010). We reached the same result in Eades v. Kennedy, PC Law Offices, where the out-of-state defendant "mail[ed] one debt collection notice to [one plaintiff in New York], engag[ed] in one debt collection phone call with [her], and mail[ed] a summons and complaint to [the plaintiffs' New York homes]." 799 F.3d 161, 168 (2d Cir. 2015). The solicitation of and sale of financial instruments to Schwab in California are equally sufficient. 20 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page21 Page21ofof64 64 Indeed, Defendants effectively concede that direct sales in California could give rise to personal jurisdiction for claims relating to those sales. They nonetheless argue that there is no jurisdiction over the direct seller Defendants here for two independent reasons. First, Defendants argue that we are not faced with a direct sales case at all. They contend that the district court dismissed all "state-law claims arising out of [Defendants' alleged] sales of LIBOR-based instruments" and that the only claims not dismissed on the merits are "those based on allegedly false LIBOR submissions made to the BBA in London." Appellees' Br. 23 & n.7. As a result, allegations of "solicitation and sale of LIBOR-based instruments to Schwab in California" are irrelevant to the jurisdictional analysis, because they are not "sufficiently 'related to'" Defendants' actions to manipulate LIBOR in London. Id. at 23. Defendants are mistaken that the district court dismissed on the merits all state-law claims arising from transactions in California. Specifically, Schwab's claims for fraud relating to omissions by Defendants in the course of selling floating-rate instruments, interference with prospective economic advantage, breach of the implied covenant, and unjust enrichment apply to financial 21 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page22 Page22ofof64 64 products sold to Schwab in California and appear to have survived such dismissal.5 Therefore, to the extent Schwab's claims concern transactions in California (as most of its surviving ones do), there is jurisdiction over the Defendants who are clearly identified as having made direct sales. Defendants are right, however, that sales in California do not alone create personal jurisdiction for claims premised solely on Defendants' false LIBOR submissions in London. A plaintiff "must establish the court's jurisdiction with respect to each claim asserted," Sunward Elecs., Inc. v. McDonald, 362 F.3d 17, 24 (2d Cir. 2004) (emphasis omitted), and we identify one claim surviving merits dismissal that does not track the analysis above: Schwab's claim that Defendants committed fraud through their daily LIBOR submissions to the BBA in London. 5 Reversing the district court's 12(b)(2) decision with respect to those claims does not mean that the claims survive in full. Some of the claims were also subject to partial dismissal or perhaps even full dismissal on the merits. For example, although allegations of sales in California may suffice for personal jurisdiction, the district court held that claims for breach of the implied covenant of good faith "against entities that were merely involved in the sales of LIBOR-related securities" failed under Rule 12(b)(6). LIBOR IV, 2015 WL 6243526, at *75. Similarly, the parties dispute whether Schwab's fraud-by-omissions claims survive when Schwab did not plead that it entered into swap contracts. It will be for the district court, after resolving additional jurisdictional issues on remand, reviewing Schwab's amended pleadings, and considering those aspects of its judgment that we vacate, to determine which Defendants and claims remain in this action. 22 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page23 Page23ofof64 64 Because activities in London do not constitute California contacts, the relevant jurisdictional question for such fraud claims is whether the California transactions constitute "suit-related conduct [that] create[s] a substantial connection with [California]." Walden v. Fiore, 134 S. Ct. 1115, 1121 (2014). They do not. "Courts typically require that the plaintiff show some sort of causal relationship between a defendant's U.S. contacts and the episode in suit," and the plaintiff's claim must in some way "arise from the defendants' purposeful contacts with the forum." Waldman v. Palestine Liberation Org., 835 F.3d 317, 341, 343 (2d Cir. 2016) (internal quotation marks omitted). Here, the California transactions did not cause Defendants' false LIBOR submissions to the BBA in London, nor did the transactions in some other way give rise to claims seeking to hold Defendants liable for those submissions. That Schwab asserts its false submission claims against all Defendants, including those that did not sell any products to Schwab, only bolsters our conclusion. Accordingly, personal jurisdiction will not lie against any Defendant with respect to Schwab's fraud claims premised on false submissions in London. Second, Defendants argue that Schwab's allegations are insufficiently "individualized" to make out a prima facie case of personal jurisdiction over any 23 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page24 Page24ofof64 64 particular Defendant. Appellees' Br. 20. As applied to Deutsche Bank and UBS, the argument is unpersuasive. Those Defendants are single entities that allegedly sold debt instruments directly to Schwab, and the complaint identifies the particular Plaintiffs with which each of those Defendants transacted. As applied to Citibank, HSBC, and JPMorgan Chase, however, Defendants' argument carries some weight. See Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 781 n.13 (1984) (holding that due process demands that courts assess "[e]ach defendant's contacts. . . individually"). Each of those "Defendants" is actually two distinct Defendants — a parent and a wholly owned subsidiary — that the complaint collapses into one. Because Schwab refers to only the grouped entities throughout its complaint, it is impossible to determine whether both Defendants in each pairing sold directly to Schwab and, if not, whether the Defendant that did not make direct sales should be considered an indirect seller or non-seller (or whether it belongs in this lawsuit at all).6 This deficiency might well be overcome as to one or the other or both of the grouped entities by amending the complaint to clarify the roles each parent 6 This same pleading issue exists for indirect seller Bank of America — that is, Defendant Bank of America Corporation (the parent) and Defendant Bank of America, N.A. (the wholly owned subsidiary). 24 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page25 Page25ofof64 64 and subsidiary played in the subject transactions. Whether Schwab should be given the opportunity to amend is discussed below. 2. Indirect Seller Defendants Schwab next argues that there is personal jurisdiction over Bank of America, Barclays, Credit Suisse, RBC, and RBS because these indirect seller Defendants sold debt instruments to Schwab in California through non-party broker-dealer subsidiaries or affiliates. Essentially, Schwab contends that the jurisdictional analysis that applies to the direct seller Defendants applies equally to the indirect sellers. It is well established that a defendant can "purposefully avail itself of a forum by directing its agents or distributors to take action there." Daimler AG v. Bauman, 134 S. Ct. 746, 759 n.13 (2014). And though we have not clearly delineated the showing necessary before an agent's contacts will be imputed to its principal for purposes of personal jurisdiction under the Due Process Clause, our caselaw provides some guidance. Leasco Data Processing Equipment Corp. v. Maxwell, for instance, involved claims that the defendants conspired to fraudulently induce the New York-based plaintiff to buy stock in Pergamon Press Limited, a British corporation. 468 F.2d. 25 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page26 Page26ofof64 64 1326, 1330 (2d Cir. 1972). We considered whether there was personal jurisdiction in New York over Isidore Kerman, a Pergamon director and senior partner at the law firm involved the sale of Pergamon stock. Id. at 1342. Kerman's personal participation in the sale was limited to attending meetings in London at which certain fraudulent representations allegedly were made and, possibly, communicating with another partner in the firm, Paul DiBiase, who handled negotiations in New York. Id. at 1342–43. We nevertheless found it a close question whether there was jurisdiction over Kerman. Id. at 1342. We observed that the "partnership relation between Kernan and DiBiase alone [would not] justify a conclusion that DiBiase's acts in New York were the equivalent, for purposes of personal jurisdiction, of acts by Kerman." Id. at 1343. But, we continued, "the matter could be viewed differently when the relationship was the closer one between a senior partner. . . and a younger partner to whom he has delegated the duty of carrying out an assignment over which the senior retains general supervision." Id. Because the latter scenario would permit jurisdiction over Kernan, we remanded for further discovery on the issue. Id. at 1333-34. Our caselaw concerning the New York long-arm statute is also instructive. Under that statute, there is jurisdiction over a principal based on the acts of an 26 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page27 Page27ofof64 64 agent where "the alleged agent acted in New York for the benefit of, with the knowledge and consent of, and under some control by, the nonresident principal." Grove Press, Inc. v. Angleton, 649 F.2d 121, 122 (2d Cir. 1981). Although the long-arm statute and the Due Process Clause are not technically coextensive, the New York requirements (benefit, knowledge, some control) are consonant with the due process principle that a defendant must have "purposefully availed itself of the privilege of doing business in the forum." Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 305 F.3d 120, 127 (2d Cir. 2002) (internal quotation marks omitted); see Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985) ("This 'purposeful availment' requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of. . . the 'unilateral activity of another party or a third person.'"). And where we have found personal jurisdiction based on an agent's contacts, we have never suggested that due process requires something more than New York law. See Chloe, 616 F.3d at 169 (New York law and due process satisfied based, in part, on imputation of company's contacts to individual defendant where defendant profited from company's in-forum handbag sales, had access to company bank account, and "shared in the decision- making and execution of the purchase and sale of handbags"); Retail Software 27 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page28 Page28ofof64 64 Servs., Inc. v. Lashlee, 854 F.2d 18, 22 (2d Cir. 1988) (New York law and due process satisfied where corporate officers allegedly "benefitted from [corporation's in-forum] activities and exercised extensive control over [corporation] in the transaction underlying th[e] suit"). These cases make it plausible that an agency relationship between a parent corporation and a subsidiary that sells securities on the parent's behalf could establish personal jurisdiction over the parent in a state in which the parent "indirectly" sells the securities. Schwab's sparse allegations of agency, however, are too conclusory to make a prima facie showing of personal jurisdiction. See Pincione v. D'Alfonso, 506 F. App'x 22, 24 (2d Cir. 2012) (holding that "allegations concerning [non-party's] agency were entirely conclusory and thus inadequate" to establish personal jurisdiction over the principal). Although Schwab's complaint sets forth a non-exhaustive list of the broker-dealer entities from which it purchased debt instruments, it sheds no light on the relationship between Defendants and those broker-dealers. Instead, the complaint generally alleges that Defendants "controlled or otherwise directed or materially participated in the operations of th[e] broker-dealers, [and] reaped proceeds or other financial benefits from the broker-dealers' sales of LIBOR-based financial instruments, 28 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page29 Page29ofof64 64 including but not limited to instances where Defendants issued the LIBOR-based financial instruments that were then sold by their broker-dealer subsidiaries or affiliates." J.A. 868. That bare allegation does not allow us to determine whether any particular broker-dealer's contacts should be imputed to any particular Defendant. Schwab's pleading deficiency is not insurmountable, and the indirect seller Defendants may well have purposefully availed themselves of California "by directing [their] agents" to transact with Schwab there. Daimler AG, 134 S. Ct. at 759 n.13. Again, whether Schwab should be allowed to amend is discussed below. 3. Non-Seller Defendants Finally, Schwab argues that "[a]s members of the conspiracy to suppress LIBOR, the non-selling defendants are subject to the personal jurisdiction of the California courts to the same extent as their co-conspirator selling defendants." Appellants' Br. 33. The district court rejected this argument because it found that Schwab had not plausibly alleged a conspiracy to manipulate LIBOR. LIBOR IV, 2015 WL 6243526, at *29. As Defendants concede, that holding cannot stand in light of our 29 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page30 Page30ofof64 64 intervening decision in Gelboim. There, we considered the sufficiency of conspiracy allegations materially indistinguishable from those Schwab pleads in this action. Gelboim, 823 F.3d at 781 & n.19. We found that a LIBOR manipulation conspiracy was plausibly alleged, and explicitly noted our disagreement with the district court's contrary ruling in the present case. Id. at 780-81. That Schwab plausibly alleges a conspiracy to manipulate LIBOR, however, does not mean that the forum contacts of the seller Defendants are necessarily imputed to the co-conspirators. Although neither this Court nor the Supreme Court has delineated when one conspirator's minimum contacts allow for personal jurisdiction over a co-conspirator, we have made clear that the mere existence of a conspiracy is not enough. Leasco, 468 F.2d at 1343. The courts of appeals that have examined the issue more thoroughly have determined that the in-forum acts must have been "in furtherance of the conspiracy." Unspam Techs., Inc. v. Chernuk, 716 F.3d 322, 329 (4th Cir. 2013); see Melea, Ltd. v. Jawer SA, 511 F.3d 1060, 1070 (10th Cir. 2007) ("While a co-conspirator's presence within the forum might reasonably create the 'minimum contacts' with the forum necessary to exercise jurisdiction over another co-conspirator if the conspiracy is directed towards the forum, or substantial steps in furtherance of the conspiracy are taken 30 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page31 Page31ofof64 64 in the forum, these elements are lacking here."); Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan, 115 F.3d 1020, 1031 (D.C. Cir. 1997); Textor v. Bd. of Regents of N. Illinois Univ., 711 F.2d 1387, 1392–93 (7th Cir. 1983). We agree that Unspam sets forth the appropriate test for alleging a conspiracy theory of jurisdiction: 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. Unspam, 716 F.3d at 329. To allow jurisdiction absent a showing that a co-conspirator's minimum contacts were in furtherance of the conspiracy would be inconsistent with the "purposeful availment" requirement. Here, Schwab's pleading does not permit an inference that certain Defendants' sales in California were in furtherance of the conspiracy. Schwab alleges that Defendants "reached a common plan or design to suppress" LIBOR, and furthered their conspiracy by "submitting false LIBOR quotes to the BBA. . . and actively concealing their misconduct, including by making false or misleading public statements concerning LIBOR." J.A. 875. As alleged, the conspiracy to manipulate LIBOR had nothing to do with the California transactions, and there is thus no reason to impute the California contacts to the 31 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page32 Page32ofof64 64 co-conspirators. Schwab argues in its brief that Defendants conspired not only to manipulate LIBOR, but also "to earn profits" from that manipulation. Appellants' Reply Br. 12. Yet financial self-interest is not the same as furthering a conspiracy through California-directed sales, and nowhere in Schwab's complaint are there allegations that Defendants undertook such sales as part of the alleged conspiracy. Whether Schwab should be allowed to amend the complaint to correct this deficiency is considered below. B. Personal Jurisdiction Arising From the "Effects" of LIBOR Manipulation in California In the alternative, Schwab argues that there is personal jurisdiction over all Defendants because the "obvious and direct effects of [their] actions in California suffice." Appellants' Br. 37. The "effects test" theory of 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. Exercise of jurisdiction in such circumstances "may be constitutionally permissible if the 32 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page33 Page33ofof64 64 defendant expressly aimed its conduct at the forum." Id., citing Calder v. Jones, 465 U.S. 783, 789 (2013). The "foreseeability of causing injury in another State," however, will not suffice. Burger King Corp., 471 U.S. at 474 (emphasis omitted). Mere foreseeability is exactly what Schwab claims here. It argues that the "effects test" is "broad enough to capture this case. . . because defendants surely knew that the brunt of th[e] injury would be felt by plaintiffs like Schwab in California." Appellants' Br. 37 (internal quotation marks omitted); see also J.A. 773 (alleging that "Defendants are sophisticated market participants that knew, or reasonably should have known, that their misconduct in causing LIBOR [suppression] . . . would produce substantial and foreseeable effects in the United States and in the Northern District of California"). That the effects of LIBOR manipulation were likely to reach an economy as large as California's does not mean that Defendants' conduct in London was "expressly aimed" at that state. Indeed, even if actions to manipulate U.S. Dollar LIBOR were aimed at the United States as a whole, it would not necessarily follow that such actions were aimed at California. See J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 884 (2011) (in assessing whether "a defendant has followed a course of conduct directed at [a specific] society or economy," a court may 33 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page34 Page34ofof64 64 determine that the defendant is "subject to the jurisdiction of the courts of the United States but not of any particular State"). Accordingly, Schwab has not made a prima facie showing of personal jurisdiction pursuant to the effects test. C. Pendent Personal Jurisdiction As a further alternative argument, Schwab contends that the district court, by virtue of having personal jurisdiction with respect to the Securities Exchange Act claims, should exercise pendent personal jurisdiction over the state-law claims. The doctrine of pendent personal jurisdiction provides that "where a federal statute authorizes nationwide service of process, and the federal and state-law claims derive from a common nucleus of operative fact, the district court may assert personal jurisdiction over the parties to the related state-law claims even if personal jurisdiction is not otherwise available." IUE AFL–CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1056 (2d Cir. 1993) (internal quotation marks and citation omitted). The district court declined to exercise pendent personal jurisdiction here "on the ground that [Schwab's] federal claims [we]re dismissed at the outset of the litigation." LIBOR IV, 2015 WL 6243526, at *24. 34 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page35 Page35ofof64 64 As discussed below, we disagree with the district court's determination that Schwab cannot state a claim under the Securities Exchange Act, and vacate dismissal of those claims in part with an opportunity to amend on remand. Because pendent personal jurisdiction is a discretionary doctrine, Hermann, 9 F.3d at 1059, and because Schwab needs to amend in order to state a plausible claim, the district court should consider the issue of pendent personal jurisdiction in the first instance. D. Forfeiture As a final effort, Schwab argues that Defendants forfeited their challenge to personal jurisdiction based on their failure to raise that issue in response to the complaints in Schwab's three 2011 actions. The district court rejected that argument, reasoning that "the present Schwab case is not the same as the ones that were [previously] dismissed" and that, even if it were, Defendants would be entitled to assert a new personal jurisdiction defense based on a favorable change in the governing precedent — specifically, the Supreme Court's decision in Daimler AG v. Bauman, 134 S. Ct. 746 (2014). LIBOR IV, 2015 WL 6243526, at *36. The district court did not abuse its discretion in rejecting Schwab's forfeiture claim. See Hamilton v. Atlas Turner, Inc., 197 F.3d 58, 60 (2d Cir. 1999). 35 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page36 Page36ofof64 64 As we have generally explained, a "party's consent to jurisdiction in one case. . . extends to that case alone" and "in no way opens that party up to other lawsuits in the same jurisdiction in which consent was given." Klinghoffer v. S.N.C. Achille, 937 F.2d 44, 50 n.5 (2d Cir. 1991). Although we do not appear to have considered the issue in the context of multiple cases in the same MDL, such circumstances do not command a different result. MDL or not, a party might have various reasons for declining to raise a personal jurisdiction defense in one case, including the perceived strength of other defenses that might result in a dismissal with prejudice. That Defendants did not raise a personal jurisdiction defense in response to Schwab's 2011 complaints does not mean that they forfeited such a defense here. E. Leave to Amend The question remains whether Schwab should be given the opportunity to amend so that it may (1) clarify the status of the Defendants grouped under the labels "Citibank," "HSBC," "JPMorgan Chase," and "Bank of America," (2) add allegations regarding the relationship between the indirect seller Defendants and their broker-dealers, and (3) add allegations making it plausible that sales in California were in furtherance of Defendants' conspiracy. 36 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page37 Page37ofof64 64 As noted above, amendments along those lines would not necessarily be futile. Defendants, however, argue that leave to amend should be denied because plaintiffs forfeited their opportunity by not seeking leave to amend below. That argument might be persuasive in another case, but we reject it here for two reasons. First, Defendants did not argue below that the aforementioned pleading deficiencies provided a basis for dismissing Schwab's claims, and Schwab thus had no reason to seek leave to amend in response to Defendants' motion to dismiss. In fact, Schwab plausibly argues that Defendants forfeited some of their arguments by failing to raise them in the district court, and making them for the first time on appeal. But the parties' mutual contentions of waiver and forfeiture must be understood in the context of how the district court chose to deal with the extraordinary scope of the litigation before it. The parties filed joint memoranda of law on personal jurisdiction, which had to cover a broad range of issues relating to dozens of complaints. Even the district court's 436-page decision did not set forth specific jurisdictional holdings with respect to each and every claim, instead leaving to the parties the task of applying the principles set forth in the opinion to the specific claims in each complaint. It gives us no great pause to 37 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page38 Page38ofof64 64 relax our usual preservation requirements — for both sides — in such circumstances.7 Second, and relatedly, the district court itself did not rely on the deficiencies we have identified in dismissing Schwab's claims. In addressing arguments that "defendants' wrongdoing in forum states supports jurisdiction over defendants in those states," the district court held broadly that the plaintiffs could establish personal jurisdiction only where a plaintiff established a prima facie case that "defendants' LIBOR manipulation took place in the relevant forum." LIBOR IV, 2015 WL 6243526, at *32 (emphasis added). Under that (erroneous) rationale, sales and solicitation in California were insufficient to give 7 The district court's requirement of joint briefing with respect to many of the issues raised in multiple distinct complaints, and its decision to address certain of those issues by delineating broad principles, posed unusual difficulties for the parties to the litigation that went well beyond the usual constraints of page limitations. In so noting, we intend no criticism of the district court, which itself was faced with an extraordinary case-management challenge. Even with the limitations imposed by the court, the parties submitted thousands of pages of briefing and supporting materials on a plethora of issues relevant to 27 distinct complaints. The court's 436-page opinion impressively addressed those many issues, provided a blueprint for the more specific resolution of a wide range issues and the disposition of motions to dismiss filed in each of the cases, and set up many of the most important issues for appellate review. In that context, it is little wonder that where the district court erred in its analysis of an issue, application of the correct principles would bring to the forefront nuances that the parties had not addressed in earlier briefing. 38 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page39 Page39ofof64 64 rise to personal jurisdiction even over a specifically identified direct seller. Therefore, there was no reason for Schwab to file a post-judgment motion seeking leave to amend in order to clarify the identity of certain grouped entities, to add allegations regarding the indirect seller Defendants, or to add allegations about in-forum acts taken in furtherance of the conspiracy; the district court's reasoning meant that no such amendments would remedy the defects that the district court perceived. F. Summary In sum, we hold that Schwab has established a prima facie case of personal jurisdiction over direct seller Defendants Deutsche Bank and UBS for claims concerning transactions in California; that Schwab should be granted leave to amend so it can clarify the status of the grouped entities (Citibank, HSBC, JPMorgan Chase, and Bank of America) and add allegations in support of its agency and conspiracy theories of jurisdiction8; and that the district court should consider on remand whether it is appropriate to exercise pendent personal 8 We leave it to the district court to determine, in its discretion, whether Schwab should also be allowed to amend its complaint (if necessary) to more adequately allege claims that can survive a motion to dismiss. See supra 16 n.3, 21–22 & n.5. 39 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page40 Page40ofof64 64 jurisdiction. We affirm the district court's decision on personal jurisdiction in all other respects. II. Dismissal of Fraud Claims Relating to Fixed-Rate Instruments Schwab next argues that the district court erred in dismissing its fraud claims arising from transactions in fixed-rate instruments. We disagree. Under California law, the elements of fraud are "(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or 'scienter'); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage." Small v. Fritz Companies, Inc., 30 Cal. 4th 167, 173 (2003) (internal quotation marks omitted). The district court effectively dismissed Schwab's claims relating to fixed- rate instruments for failure to plead justifiable reliance. It reasoned that "plaintiffs who used LIBOR-based pricing to decide whether to invest in LIBOR- based instruments" were relying on an impermissible "'fraud on the market' theory that efficient market forces embedded defendants' false information in otherwise reliable prices." LIBOR IV, 2015 WL 6243526, at *65. The fraud on the market doctrine "makes it unnecessary for buyers or sellers of stock to prove they relied on a defendant's misrepresentations, on the theory that whether or not 40 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page41 Page41ofof64 64 they relied[,] the misrepresentation influenced the market price at which they later bought or sold." Small, 30 Cal. 4th at 179. California has rejected the doctrine, meaning that "a plaintiff suing for fraud. . . under California law must prove actual reliance." Id. at 180. Although the district court was right on the state of California law, it erred in finding that Schwab was relying on the fraud on the market doctrine in this case. Schwab alleges that, in connection with each transaction, it "evaluated the difference (or 'spread') between the offered rate and LIBOR," that a larger spread caused it to purchase fixed-rate instruments, and that it "relied on the accuracy of LIBOR in undertaking these transactions." J.A. 867. Those allegations set forth Schwab's theory of reliance, and they go beyond the bare assertion that Defendants' fraudulent LIBOR submissions were embedded in the price of fixed- rate instruments. The district court thus erred in dismissing Schwab's claims as precluded by California's rejection of the fraud on the market doctrine. Defendants, however, identify an alternative basis on which to affirm the dismissal of the fraud claims involving fixed-rate instruments: the claims are beyond the scope of common law fraud. 41 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page42 Page42ofof64 64 California follows the Restatements of Torts, under which a defendant is liable to those "whom he intends or has reason to expect to" rely on a misrepresentation. Restatement (Second) of Torts ("Rest. 2d Torts"), § 531(1977); id. § 533; Bily v. Arthur Young & Co., 3 Cal. 4th 370, 415 (1992), as modified (Nov. 12, 1992) (en banc). "[R]eason to expect" is distinct from "the concept of foreseeability" and "bears more similarity to actual intent to cause third party reliance than it does to 'foreseeability.'" Geernaert v. Mitchell, 31 Cal. App. 4th 601, 607 (Cal. Ct. App. 1st Dist. 1995) (emphasis in original); see also Gawara v. U.S. Brass Corp., 63 Cal. App. 4th 1341, 1351 n.10 (Cal. Ct. App. 4th Dist. 1998). As a result, a plaintiff seeking to rely on a representation that the defendant made to a third party must show that the defendant "'ha[d] information that would lead a reasonable man to conclude that there is an especial likelihood that it [would] reach those persons [similarly situated to the plaintiff] and [would] influence their conduct.'" Geernaert, 31 Ca. App. 4th at 607, quoting Rest. 2d Torts § 531, cmt. d (italics omitted). The Restatement also limits a defendant's liability "to pecuniary losses suffered in the type of transaction in which he intends or has reason to expect the 42 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page43 Page43ofof64 64 conduct of others to be influenced." Rest. 2d Torts § 531, cmt. g. As an illustration, the Restatement explains that: A, seeking to sell a lot owned by him, publishes in newspapers fraudulent statements concerning the character of all lots in the real estate development in which it is located. B reads these statements, and in reliance upon them purchases another lot in the same development from C. A is not liable to B under the rule stated in this Section. Id. Defendants contend that Schwab's claims are beyond the scope of common law fraud because they would make Defendants liable for misrepresentations about LIBOR to parties that bought financial instruments that do not reference LIBOR at all. Schwab responds that its claim is within the scope of common law fraud because the complaint alleges that assessing the spread between LIBOR and the offered rate for a fixed-rate instrument is a "common analysis undertaken by participants in [the] market[]." J.A. 867. In other words, Schwab argues that because LIBOR is an important financial consideration, Defendants should have known that investors in debt instruments would consider LIBOR when making investment decisions. Schwab's allegation amounts to nothing more than mere foreseeability. 43 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page44 Page44ofof64 64 The chain of events that resulted in Schwab's reliance was extended: Defendants made false submissions to the BBA; their submissions collectively influenced LIBOR; LIBOR was incorporated into floating-rate instruments; (relatively) poor returns on floating-rate instruments caused Schwab to turn to fixed-rate instruments; and Schwab purchased such instruments after considering, among other factors, the expected return on floating-rate instruments in light of the rate at which LIBOR had been set. Schwab makes no allegations that Defendants had information about an "especial likelihood" of inducing purchases of fixed-rate instruments by anyone, let alone by Schwab in particular, Rest. 2d Torts § 531, cmt. d, and the losses Schwab allegedly suffered in purchasing fixed-rate instruments were different than the harm that Defendants intended or would have expected to cause by making false LIBOR submissions, id. § 531, cmt. g. In fact, Schwab's arguments would seem to apply equally to a plaintiff suing under a theory that LIBOR suppression influenced a decision to purchase equity securities, thereby making Defendants potentially liable to anyone who purchased any security in the relevant time period. California law does not provide for such boundless liability. Accordingly, the district court's dismissal of Schwab's fraud claims 44 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page45 Page45ofof64 64 relating to fixed-rate instruments is affirmed. III. Dismissal of Securities Exchange Act Claims Schwab also challenges the dismissal of its Securities Exchange Act claims. Section 10(b) of the Act "prohibit[s] fraud in the purchase or sale of a security." SEC v. Sourlis, 851 F.3d 139, 144 (2d Cir. 2016). To state a claim for violation of that provision, a plaintiff must allege "(1) a material misrepresentation or omission by the defendant; (2) scienter; (3) a connection between the misrepresentation or omission and the purchase or sale of a security; (4) reliance upon the misrepresentation or omission; (5) economic loss; and (6) loss causation." Halliburton Co. v. Erica P. John Fund, Inc., 134 S. Ct. 2398, 2407 (2014) (internal quotation marks omitted). Schwab's Securities Exchange Act claims concern floating-rate as well as fixed-rate instruments. The district court held that Schwab failed to state a claim with respect to transactions in both types of instruments, for different reasons. Schwab argues that the court erred with respect to both. We agree in part. A. Floating-Rate Instruments The district court offered two reasons for dismissing Schwab's claims relating to floating-rate instruments. First, insofar as Defendants' 45 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page46 Page46ofof64 64 misrepresentations or omissions allegedly caused Schwab to purchase floating- rate instruments, the district court effectively held that Schwab failed to plead loss causation. It reasoned that because "a bond's price is equal to the present value of its expected future interest and principal payments," LIBOR suppression would lower the expected future interest on the bond, thus reducing the bond's purchase price. LIBOR IV, 2015 WL 6243526, at *70. In other words, as a matter of "common economic experience," LIBOR suppression could not have caused any losses connected to Schwab's purchase of floating-rate instruments because such suppression would have lowered the purchase price, and Schwab might have even received a windfall in terms of higher-than-expected coupon payments after LIBOR suppression ended. Id. Second, insofar as Defendants' misrepresentations caused Schwab to receive artificially low interest payments on the floating-rate instruments, the district court held that receipt of interest payments did not qualify as a "purchase or sale" of securities, as required to state a claim. Id. Schwab argues that the district court improperly bifurcated its claim and that, properly construed, its "straightforward allegation is that, because LIBOR was artificially suppressed, the overall return to Schwab from purchasing a 46 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page47 Page47ofof64 64 LIBOR-based bond. . . was artificially suppressed as well." Appellants' Reply Br. 27. We cannot agree. To whatever extent Schwab alleges that its overall return on its investments was reduced, that reduction must consist of one or both of two components: an artificially inflated purchase price or an artificially reduced interest rate. The district court did not err in examining these two components separately to determine whether either supports a cognizable claim. We agree with the district court that to the extent Schwab seeks to impose liability for false LIBOR submissions that affected the amount of money it received on instruments it had already purchased, its claims fail. There is no authority for the proposition that an interest payment in itself qualifies as a "purchase or sale of a security," Halliburton Co., 134 S. Ct. at 2407, and Defendants' LIBOR submissions, possibly occurring months after Schwab purchased a particular security, bore no relation to that original purchase. We disagree with the district court, however, that misrepresentations and omissions that induced Schwab's purchase of floating-rate instruments could not have caused any losses. Although a depressed LIBOR that caused expectations of future interest payments to decrease might result in lock-step reductions in the price of floating-rate instruments, such an effect is not certain, and expert 47 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page48 Page48ofof64 64 testimony might well demonstrate that, in light of Defendants' manipulation, Schwab's floating-rate instruments should have been priced even lower than they were. The district court was thus wrong to assume, at the pleading stage, that Schwab was not harmed by, and may have even benefitted from, LIBOR manipulation. As Defendants point out, Schwab would not have experienced any losses as result of a mispriced floating-rate instrument at the moment of purchase, because "the inflated purchase payment is offset by ownership of a share that at that instant possesses equivalent value." Dura Pharm. Inc. v. Broudo, 544 U.S. 336, 342 (2005). But that is not to say that no losses would ever be realized. If Schwab held a mispriced instrument to maturity, for instance, it might have incurred damages based on the reduced cash flow received from interest payments that were depressed because of Defendants' manipulation of LIBOR. Or if Schwab tried to sell a floating-rate instrument after LIBOR manipulation was revealed, it might have been forced to sell at a loss. At this stage of the litigation, we cannot rule out either theory of loss causation — certainly not as a matter of "common economic experience," as the district court held. LIBOR IV, 2015 WL 6243526, at *70. What's unclear, however, 48 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page49 Page49ofof64 64 is whether Schwab's complaint actually encompasses either theory. Schwab simply alleges that it purchased instruments that "bore artificially low rates of return" and generally "suffered damages in connection with [its] purchases (and other acquisitions) and sales of LIBOR-based financial instruments." J.A. 887–88. Although the burden on a securities plaintiff to plead loss causation is "not a heavy one," the complaint still must give "'some indication' . . . of a plausible causal link" between the loss and the alleged fraud. Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC, 797 F3d 160, 187 (2d Cir. 2015), quoting Dura, 544 U.S. at 347. On remand, Schwab should add allegations clarifying the loss causation theory or theories on which it relies. Upon satisfaction of its minimal pleading burden, Schwab should then be permitted to proceed with Securities Exchange Act claims concerning misrepresentations and omissions that induced Schwab's purchase of floating-rate instruments. Defendants make two alternative arguments in support of affirmance, both of which we reject. First, they argue that by not "alleg[ing] facts specific to the securit[ies] in question including who said what to whom concerning" each particular security, Schwab fails to plead its Securities Exchange Act claims with the requisite 49 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page50 Page50ofof64 64 particularity. Appellees' Br. 51 (internal quotation marks and emphasis omitted). Under Rule 9(b) of the Federal Rules of Civil Procedure and the Private Securities Litigation Reform Act ("PSLRA"), a securities fraud complaint must "(1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent." Employees' Ret. Sys. of Gov't of the Virgin Islands v. Blanford, 794 F.3d 297, 305 (2d Cir. 2015) (internal quotation marks omitted). The "primary purpose" of these requirements is to "afford [the] defendant fair notice of the plaintiff's claim and the factual ground upon which it is based." Novak v. Kasaks, 216 F.3d 300, 314 (2d Cir. 2000) (internal quotation marks omitted). We find the allegations here to be sufficiently particularized. Schwab's claims concern Defendants' false submissions to the BBA and their failure to disclose their manipulation of LIBOR when selling Schwab floating-rate instruments tied to it. As to the false LIBOR submissions, the complaint contains significant and sufficiently detailed allegations demonstrating that Defendants, in their daily submissions as members of the U.S. Dollar LIBOR panel, misstated their true borrowing costs, and we agree with the district court that these 50 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page51 Page51ofof64 64 "'LIBOR quotes' are sufficiently identifiable to pass muster under Rule 9(b)." LIBOR IV, 2015 WL 6243526, at *62. As to omissions concerning the accuracy of LIBOR, we again agree with the district court that, "because the point of an omission is that information was missing from the contract and from negotiations," Schwab did not need to "cite specific terms of a contract" and could instead name a "set of contracts. . . and. . . [a] set of counterparties. . . that failed to divulge information about the quality of LIBOR." Id. at *58. Schwab defines these sets in its complaint, and it was not required to individually allege the same omission for each and every floating-rate instrument transaction, for billions of dollars' worth of transactions. There is no doubt that Defendants have fair notice of, and understand the factual basis for, the misrepresentations and omissions that underlie Schwab's claims. Accordingly, the particularity requirements of Rule 9(b) and the PSLRA have been satisfied. Second, Defendants argue that Schwab's claims are untimely. Securities Exchange Act claims sounding in fraud must be filed within the earlier of five years from the alleged violation or two years "after discovery of the facts constituting the violation." 28 U.S.C. § 1658(b). "Discovery" in this context is stricter than inquiry notice, and occurs when "a reasonably diligent plaintiff 51 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page52 Page52ofof64 64 would have sufficient information. . . to adequately plead [its claim] in a complaint." City of Pontiac, 637 F.3d at 175. Defendants contend that the limitations period expired in March 2013, roughly a month before Schwab filed its April 2013 complaint, and two years after Schwab discovered Defendants' alleged fraud. In support, Defendants point to Schwab's allegation that it "had not discovered, and could not with reasonable diligence have discovered, facts indicting Defendants were knowingly engaging in misconduct that caused LIBOR to be artificially depressed" before March 15, 2011, when UBS disclosed in a public SEC filing that it had "'received subpoenas'" relating to an investigation into LIBOR manipulation. J.A. 856. According to Defendants, the "necessary implication of that allegation is that Schwab was on notice" after that date. Appellees' Br. 52. In addition, Defendants refer to other "widely publicized lawsuits alleging the same facts on which Schwab bases its Exchange Act claims," and argue that the "allegations of fraud in those complaints" — filed at some unspecified date more than two years before Schwab filed its complaint — "were more than enough to start the clock." Id. 52 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page53 Page53ofof64 64 Those arguments fall short. Even if UBS's SEC filing would have led a "reasonable investor to investigate the possibility of fraud," such inquiry notice "does not automatically begin the running of the limitations period" for Securities Exchange Act claims. City of Pontiac, 637 F.3d at 173–74 (internal quotation marks omitted). Instead, we must ask when an investigation would have given Schwab sufficient information to plead its claims with "sufficient detail and particularity to survive a 12(b)(6) motion to dismiss." Id. at 175. It is too soon to identify, from the face of the complaint and taking all inferences in Schwab's favor, the precise moment at which the two-year limitations period began to run. Defendants do not identify which allegations in which "widely publicized lawsuits" would have enabled Schwab to state its own viable claims, Appellees' Br. 52, and the mere fact that UBS disclosed the existence of an investigation into whether UBS had made "improper attempts. . . either acting on its own or together with others, to manipulate LIBOR rates at certain times" certainly does not prove that Schwab had all the information necessary to set forth its claims in sufficient detail, J.A. 856.9 9 The district court did hold that Securities Exchange Act claims based on alleged violations occurring before April 27, 2008 — five years before Schwab filed its complaint – were time-barred. See 28 U.S.C. § 1658(b)(2). Schwab does not 53 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page54 Page54ofof64 64 For these reasons, we conclude that the district court erred in holding that Schwab could not establish loss causation for claims concerning misrepresentations and omissions that led Schwab to purchase floating-rate instruments tied to LIBOR, and that Schwab should be permitted to amend its complaint on remand to clarify its loss causation theory for such claims. B. Fixed-Rate Instruments The district court dismissed Schwab's Securities Exchange Act claims relating to fixed-rate instruments on the ground that Schwab "essentially [alleged] that it declined to purchase manipulated [floating-rate] securities" as a result of Defendants' misrepresentations, and that a decision not to purchase a security does not suffice to state a claim. LIBOR IV, 2015 WL 6243526, at *70. Schwab argues that the district court misconstrued its claim: it is not that Schwab simply declined to purchase floating-rate instruments, but rather that "in actually 'undertaking. . . transactions' in fixed-rate instruments, Schwab accepted materially worse overall returns because it relied on manipulated LIBOR." Appellants' Reply Br. 26. challenge that determination on appeal, and nothing in our opinion disturbs that portion of the district court's judgment. 54 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page55 Page55ofof64 64 But Schwab's framing begs the question of whether Defendants' allegedly false LIBOR submissions were "in connection with" Schwab's transactions in fixed-rate instruments that did not incorporate LIBOR at all. Typically, a plaintiff satisfies the "in connection with" requirement when "the fraud alleged is that the plaintiff bought or sold a security in reliance on misrepresentations as to its value." In re Ames Dep't Stores Inc. Stock Litig., 991 F.2d 953, 967 (2d Cir. 1993). A claim fails where the plaintiff does "not allege that [a defendant] misled him concerning the value of the securities he sold or the consideration he received in return." Saxe v. E.F. Hutton & Co., 789 F.2d 105, 108 (2d Cir. 1986); see Chem. Bank v. Arthur Andersen & Co., 726 F.2d 930, 943 (2d Cir. 1984) ("The purpose of § 10(b) and Rule 10b-5 is to protect persons who are deceived in securities transactions — to make sure that buyers of securities get what they think they are getting and that sellers of securities are not tricked into parting with something for a price known to the buyer to be inadequate or for a consideration known to the buyer not to be what it purports to be."). When Schwab purchased fixed-rate instruments, it received exactly what it expected. Defendants' alleged misrepresentations to the BBA were not made in connection with Schwab's purchase of fixed-rate instruments, which did not 55 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page56 Page56ofof64 64 reference or relate to Defendants' LIBOR submissions in any way. The district court's dismissal of Schwab's Securities Exchange Act claims concerning fixed- rate transactions is therefore affirmed. IV. Partial Dismissal of Unjust Enrichment Claims Lastly, Schwab argues that the district court erred in partially dismissing its unjust enrichment claims as untimely. We agree. The district court held that claims arising before August 23 or 27, 2008, (depending on the particular Plaintiff) were untimely because they fell outside the three-year period before Schwab first filed complaints alleging unjust enrichment against Defendants. 10 Schwab contends that it did not discover its unjust enrichment claims until after that date, thus delaying the start of the three- year limitations period and making all of its claims timely. The district court rejected that argument. Notably, the court refused to dismiss any of Schwab's tort claims as untimely because it determined that it was 10 The district court held that Schwab's common-law claims "effectively relate[d] back" to Schwab's first set of cases, filed on August 23 and 29, 2011, in which the court declined to exercise supplemental jurisdiction over state-law claims. LIBOR IV, 2015 WL 6243526, at *177; see also id. at *158, *177 n.205. No party challenges the propriety of considering those dates to be the relevant filing dates for statute of limitations purposes. 56 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page57 Page57ofof64 64 unclear from the complaint at what point Schwab was put on inquiry notice of those claims — that is, when it "suspect[ed] or should [have] suspect[ed] that [its] injury was caused by wrongdoing." Jolly v. Eli Lilly & Co., 44 Cal. 3d 1103, 1110 (1988). But, the district court continued, unjust enrichment was subject to a "more limited" discovery rule under which "the clock starts when the breach is no longer 'difficult. . . to detect.'" LIBOR IV, 2015 WL 6243526, at *128, quoting April Enters., Inc. v. KTTV, 147 Cal. App. 3d 805, 831 (Cal. Ct. App. 2d Dist. 1983). Because "news articles had established the strong possibility of LIBOR manipulation" by May 29, 2008, id. at *115, the court held that Schwab's injuries were "no longer 'difficult. . . to detect'" by that date, meaning the discovery rule did not bring any pre-August 2008 claims within the limitations period, id. at *177. The jurisprudential premise for the district court's analysis, however, does not withstand scrutiny. April Enterprises concerned whether the discovery rule applied at all in contract actions. 147 Cal. App. 3d at 828–33. In answering that question of first impression, the California Court of Appeal observed that in "all the types of actions where courts have applied the discovery rule," the "injury or the act causing the injury, or both, have been difficult for the plaintiff to detect." 57 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page58 Page58ofof64 64 Id. at 831. Although that rationale might not fit with the "typical" contract case where a party immediately learns that it has not received benefits due under an agreement, the California court held that the discovery rule would nonetheless apply to "breaches [of contract] which can be, and are, committed in secret and, moreover, where the harm flowing from those breaches will not be reasonably discoverable by plaintiffs until a future time." Id. at 832. April Enterprises did not say, however, that where the discovery rule is available, courts should use anything other than California's ordinary inquiry notice standard in applying that rule. The reference to harm or wrongdoing that is "difficult for the plaintiff to detect" was simply a description of the general circumstances in which inquiry notice applies, id. at 831, and the California court cited inquiry notice cases for the standard that should govern contract cases, id. at 832–33. California cases relying on April Enterprise to apply the discovery rule in contract cases have followed suit. See, e.g., Weatherly v. Universal Music Pub. Grp., 125 Cal. App. 4th 913, 919–20 (Cal. Ct. App. 2d Dist. 2004); Gryczman v. 4550 Pico Partners, Ltd., 107 Cal. App. 4th 1, 6 (Cal. Ct. App. 2d Dist. 2003). The district court was wrong on the standard for a simpler reason as well: Schwab's unjust enrichment claims sound in fraud. See J.A. 884 (alleging that 58 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page59 Page59ofof64 64 "[b]y means of their unlawful conduct. . . including misrepresenting their costs of borrowing to the BBA to manipulate LIBOR, . . . [Defendants] knowingly received and retained wrongful benefits and funds from Plaintiffs"). Under California law, an "action for relief on the ground of fraud or mistake. . . is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake." Cal. Civ. Proc. Code § 338(d). California caselaw makes clear that "discovery" in the statute means inquiry notice, and that is the standard that the district court should have applied. See FDIC v. Dintino, 167 Cal. App. 4th 333, 350 (Cal. Ct. App. 4th Dist. 2008) (applying inquiry notice rule applicable to fraud and mistake claims where the plaintiff asserted unjust enrichment cause of action based on mistake). Under the proper standard, Schwab's unjust enrichment claims were dismissed in error. The limitations period "begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing." Jolly, 44 Cal. 3d at 1110. In contrast to other inquiry notice jurisdictions, California courts have rejected the argument that press reporting that might make a reasonable person suspect wrongdoing is sufficient where there is no evidence that the plaintiff was aware of the reporting in question. Nelson v. Indevus Pharm., Inc., 142 59 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page60 Page60ofof64 64 Cal. App. 4th 1202, 1206 (Cal. Ct. App. 2d Dist. 2006) ("The statute of limitations does not begin to run when some members of the public have a suspicion of wrongdoing, but only once the plaintiff has a suspicion of wrongdoing." (internal quotation marks omitted)); Eidson v. Medtronic, Inc., 40 F. Supp. 3d 1202, 1220–21 (N.D. Cal. 2014) (collecting cases). Here, Schwab alleges that it "had not discovered. . . facts indicating Defendants were knowingly engaging in misconduct" until March 2011, J.A. 856, and as the district court properly determined in connection with Schwab's tort causes of action, the complaint does not reveal when Schwab "became aware of the news articles that would have put [it] on inquiry notice," LIBOR IV, 2015 WL 6243526, at *177. As a result, it is impossible to determine from the complaint when the statute of limitations began to run. Moreover, even if Schwab were aware of news articles that raised the possibility that "LIBOR had been at artificial levels since August 2007," Appellees' Br. 57 (internal quotation marks omitted), it is not certain that any of Schwab's claims would be time-barred. The BBA responded to the negative press reporting by assuring investors and journalists that its own investigation had confirmed the accuracy of LIBOR. It is plausible that Schwab reasonably relied on 60 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page61 Page61ofof64 64 those assurances, thus delaying the start of the limitations period. See BPP Ill., LLC v. Royal Bank of Scot. Grp., PLC, 603 F. App'x 57, 59 (2d Cir. 2015) (considering the same press reports at issue here, and reversing district court for "act[ing] too hastily" in dismissing LIBOR-manipulation claims as time-barred). Discovery in this case may well reveal that Schwab should have suspected wrongdoing well before March 2011. At this stage, however, partial dismissal of the unjust enrichment claims was unwarranted. CONCLUSION For the foregoing reasons, we VACATE those portions of the district court's judgment that (1) dismiss Schwab's state-law claims concerning products sold in California for lack of personal jurisdiction; (2) dismiss Schwab's Securities Exchange Act claims premised on misrepresentations and omissions that induced the purchase of floating-rate instruments on or after April 27, 2008; and (3) dismiss Schwab's unjust enrichment claims against counterparties or a wrongdoer's affiliates as time-barred. We AFFIRM the judgment in all other respects, and REMAND for proceedings consistent with this opinion. 61 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page62 Page62ofof64 64 APPENDIX A Additional Counsel for Plaintiffs-Appellants on the Brief Steven E. Fineman, Michael J. Miarmi, Lieff, Cabraser, Heimann & Bernstein, LLP, New York, New York; Richard M. Heimann, Brendan P. Glackin, Lieff, Cabraser, Heimann & Berstein, LLP, San Francisco, California, for Plaintiffs-Appellants. Additional Counsel for Defendants-Appellees on the Brief Arthur J. Burke, Paul S. Mishkin, Adam G. Mehes, Davis Polk & Wardwell LLP, New York, New York, for Defendants-Appellees Bank of America Corporation and Bank of America, N.A. Daryl A. Libow, Christopher M. Viapiano, Sullivan & Cromwell LLP, Washington, D.C., for Defendant Appellee Bank of Tokyo-Mitsubishi UFJ, Ltd. David H. Braff, Yvonne S. Quinn, Jeffrey T. Scott, Matthew J. Porpora, Sullivan & Cromwell, New York, New York; Jonathan D. Schiller, Leigh Nathanson, Amos Friedland, Boies Schiller Flexner LLP, New York, New York; Michael A. Brille, Boies Schiller Flexner LLP, Washington, D.C., for Defendant-Appellee Barclays Bank PLC. Andrew A. Ruffino, Covington & Burling LLP, New York, New York; Alan M. Wiseman, Thomas A. Isaacson, Jonathan Gimblett, Andrew D. Lazerow, Covington & Burling LLP, Washington, D.C.; Lev Dassin, Jonathan S. Kolodner, Cleary Gottlieb Steen & Hamilton LLP, New York, New York, for Defendants-Appellees Citigroup Inc. and Citibank, N.A. David R. Gelfand, Sean M. Murphy, Mark D. Villaverde, Milbank, Tweed, Hadley & McCloy LLP, New York, New York, for Defendant-Appellee Coöperatieve Rabobank U.A. 62 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page63 Page63ofof64 64 Herbert S. Washer, Elai Katz, Joel Kurtzberg, Jason M. Hall, Adam Mintz,, Cahill Gordon & Reindel LLP, New York, New York, for Defendant- Appellee Credit Suisse Group AG. Moses Silverman, Andrew C. Finch, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, New York, for Deutsche Bank AG. Gregory T. Casamento, R. James DeRose, III, Locke Lord LLP, New York, New York; Roger B. Cowie, Locke Lord LLP, Dallas, Texas; J. Matthew Goodin, Julia C. Webb, Locke Lord LLP, Chicago, Illinois, for Defendants- Appellees HSBC Holdings PLC and HSBC Bank PLC. Thomas C. Rice, Paul C. Gluckow, Omari L. Mason, Simpson Thacher & Bartlett LLP, New York, New York; Abram J. Ellis, Simpson Thacher & Bartlett LLP, Washington, D.C., for Defendants-Appellees JPMorgan Chase & Co. and JPMorgan Chase Bank, N.A. Arthur W. Hahn, Christian T. Kemnitz, Brian J. Poronsky, Katten Muchin Rosenman LLP, Chicago, Illinois, for Defendant-Appellee Royal Bank of Canada. Andrew W. Stern, Alan M. Unger, Thomas A. Paskowtiz, Sidley Austin LLP, New York, New York, for Defendant-Appellee Norinchukin Bank. Fraser L. Hunter, Jr., David S. Lesser, Jamie S. Dycus, Wilmer Cutler Pickering Hale and Dorr LLP, New York, New York; Robert G. Houck, Clifford Chance US LLP, New York, New York, for Defendant-Appellee Royal Bank of Scotland Group plc. Peter Sullivan, Lawrence J. Zweifach, Jefferson E. Bell, Gibson, Dunn & Crutcher LLP, New York, New York; Joel Steven Sanders, Gibson, Dunn & Crutcher LLP, San Francisco, California, for Defendant-Appellee UBS AG. Christopher M. Paparella, Marc A. Weinstein, Hughes Hubbard & Reed 63 Case Case17-1569, 16-1189,Document Document470-2, 259, 02/23/2018, 02/28/2018,2242196, 2246713,Page64 Page64ofof64 64 LLP, New York, New York, for Defendants-Appellees Portigon AG and Westdeutsche ImmobilienBank AG. Counsel for Amici Curiae Kevin C. Newsom, Blair Druhan Bullock, Bradley Arant Boult Cummings LLP, New York, New York; Edmund S. Sauer, Bradley Arant Boult Cummings LLP, Nashville, Tennessee, for Amici Curiae the Institute of International Bankers and the Clearing House Association L.L.C. in support of Defendants-Appellees. 64

MOTION, for FRAP 12.1 (b) remand, on behalf of Appellant City of New Britain, Jennie Stuart Medical Center, Inc., Mayor and City Council of Baltimore, Vistra Energy Corporation and Yale University in 17-1569, 17-1915, FILED. Service date 03/08/2018 by CM/ECF. [2252317] [17-1569, 17-1915] [Entered: 03/08/2018 02:46 PM]

Case 17-1569, Document 472-1, 03/08/2018, 2252317, Page1 of 1 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Thurgood Marshall U.S. Courthouse 40 Foley Square, New York, NY 10007 Telephone: 212-857-8500 MOTION INFORMATION STATEMENT 17-1569, 17-1915 Docket Number(s): ________________________________________ _______________Caption [use short title]_____________________ Limited remand pursuant to FRAP 12.1(a) Motion for: ______________________________________________ ________________________________________________________ ________________________________________________________ Set forth below precise, complete statement of relief sought: Limited remand pursuant to FRAP 12.1(a) for purposes of settlement under Rule 23(e) ________________________________________________________ In re Libor-Based Financial Instruments Antitrust ________________________________________________________ /LWLJDWLRQ ________________________________________________________ ________________________________________________________ ________________________________________________________ ________________________________________________________ This motion is unopposed Mayor and City Council of Baltimore et al. OPPOSING PARTY:____________________________________________ MOVING PARTY:_______________________________________ ✔ ___Plaintiff ___Defendant ✔ ___Appellant/Petitioner ___Appellee/Respondent Arun S. Subramanian MOVING ATTORNEY:___________________________________ None OPPOSING ATTORNEY:________________________________________ [name of attorney, with firm, address, phone number and e-mail] Susman Godfrey L.L.P. ________________________________________________________ _______________________________________________________________ 1301 Avenue of the Americas, 32nd Floor ________________________________________________________ _______________________________________________________________ New York, NY 10019 - (212) 336-8330; asubramanian@susmangodfrey.com ________________________________________________________ _______________________________________________________________ Southern District of New York - The Honorable Naomi Reice Buchwald Court- Judge/ Agency appealed from: _________________________________________________________________________________________ Please check appropriate boxes: FOR EMERGENCY MOTIONS, MOTIONS FOR STAYS AND INJUCTIONS PENDING APPEAL: Has movant notified opposing counsel (required by Local Rule 27.1): Has this request for relief been made below? ___Yes ___No ✔ ___Yes ___No (explain):__________________________ Has this relief been previously sought in this court? ___Yes ___No _______________________________________________ Requested return date and explanation of emergency: ________________ _____________________________________________________________ Opposing counsel's position on motion: _____________________________________________________________ ✔ ___Unopposed ___Opposed ___Don't Know _____________________________________________________________ Does opposing counsel intend to file a response: _____________________________________________________________ ✔ ___Yes ___No ___Don't Know Is oral argument on motion requested? ✔ (requests for oral argument will not necessarily be granted) ___Yes ___No Has argument date of appeal been set? ✔ ___ Yes ___No If yes, enter date:_______________________________________________________ Signature of Moving Attorney: /s/ Arun S. Subramanian _________________________________ 03/08/2018 Date:__________________ ✔ Service by: ___CM/ECF ___Other [Attach proof of service] Form T F T-1080 1080 ((rev.12-13) 12 13) Case 17-1569, Document 472-2, 03/08/2018, 2252317, Page1 of 10 17-1569 (L) 17-1915(CON), 17-1989(CON), 17-2056(CON), 17-2343(CON), 17-2347(CON), 17-2351(CON), 17-2352(CON), 17-2360(CON), 17-2376(CON), 17-2381(CON), 17-2383(CON), 17-2413(CON) United States Court of Appeals for the Second Circuit IN RE LIBOR-BASED FINANCIAL INSTRUMENTS ANTITRUST LITIGATION (Caption Continued on the Following Page) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK DECLARATION OF ARUN SUBRAMANIAN IN SUPPORT OF OTC PLAINTIFFS' UNOPPOSED MOTION FOR LIMITED REMAND PURSUANT TO FEDERAL RULE OF APPELLATE PROCEDURE 12.1(a) William Christopher Carmody Michael D. Hausfeld Arun S. Subramanian Hilary K. Scherrer SUSMAN GODFREY L.L.P. HAUSFELD LLP 1301 Avenue of the Americas, 32nd Fl. 1700 St. NW, Ste. 650 New York, NY 10019 Washington, DC 20006 Telephone: (212) 336-8330 Telephone: (202) 540-7200 Facsimile: (212) 336-8340 Facsimile: (202) 540-7201 bcarmody@susmangodfrey.com mhausfeld@hausfeldllp.com asubramanian@susmangodfrey.com hscherrer@hausfeldllp.com Counsel for Plaintiffs-Appellants Mayor and City Council of Baltimore, City of New Britain, Jennie Stuart Medical Center, Inc., Vistra Energy Corporation, and Yale University in Dkt. #17-1569 and Dkt. #17-1915 Case 17-1569, Document 472-2, 03/08/2018, 2252317, Page2 of 10 Schwab Short-Term Bond Market Fund, Schwab Total Bond Market Fund, Schwab U.S. Dollar Liquid Assets Fund, Schwab Money Market Fund, Schwab Value Advantage Money Fund, Schwab Retirement Advantage Money Fund, Schwab Investor Money Fund, Schwab Cash Reserves, Schwab Advisor Cash Reserves, Charles Schwab Bank, N.A., Charles Schwab & Co., Inc., Schwab YieldPlus Fund, Schwab YieldPlus Fund Liquidation Trust, The Charles Schwab Corporation, City of New Britain, on behalf of itself and all others similarly situated, Mayor and City Council of Baltimore, City of Houston, Vistra Energy Corporation, Yale University, Jennie Stuart Medical Center, Inc., FTC Futures Fund PCC Ltd, on behalf of themselves and all others similarly situated, National Credit Union Administration Board, as Liquidating Agent of U.S. Central Federal Credit Union, Western Corporate Federal Credit Union, Members United Corporate Federal Credit Union, Southwest Corporate Federal Credit Union, and Constitution Corporate Federal Credit Union, Pennsylvania Intergovernmental Cooperation Authority, City of Philadelphia, Darby Financial Products, Salix Capital US Inc., Capital Ventures International, Prudential Investment Portfolios 2, FKA Dryden Core Investment Fund, on behalf of Prudential Core Short-Term Bond Fund, Bay Area Toll Authority, California Public Plaintiffs, Linda Zacher, Ellen Gelboim, on behalf of herself and all others similarly situated, Gary Francis, Metzler Investment GmbH, on behalf of itself and all others similarly situated, 303030 Trading LLC, Atlantic Trading USA, LLC, FTC Futures Fund SICAV, on behalf of themselves and all others similarly situated, Nathaniel Haynes, County of Sonoma, The San Mateo County Joint Powers Financing Authority, Richmond Joint Powers Financing Authority, Successor Agency to the Richmond Community Redevelopment Agency, Riverside Public Financing Authority, David E. Sundstrom, in his official capacity as Treasurer of the county of Sonoma for and on behalf of the Sonoma County Treasury Pool Investment, East Bay Municipal Utility District, Regents of the University of California, Plaintiffs-Appellants, Carpenters Pension Fund of West Virginia, City of Dania Beach Police & Firefighters' Retirement System, Individually and on behalf of all others similarly situated, Ravan Investments, LLC, Richard Hershey, Jeffrey Laydon, on behalf of himself and all others similarly situated, Roberto E. Calle Gracey, AVP Properties, LLC, Community Bank & Trust, Berkshire Bank, Individually and On Behalf of All Others Similarly Situated, Elizabeth Lieberman, on behalf of themselves and all other similarly situated, Todd Augenbaum, on behalf of themselves and all others similarly situated, 33-35 Green Pond Road Associates, LLC, on behalf of itself and all others similarly situated, Courtyard at Amwell II, LLC, Annie Bell Adams, on behalf of herself and all others similarly situated, Jill Court Associates Case 17-1569, Document 472-2, 03/08/2018, 2252317, Page3 of 10 II, LLC, Greenwich Commons II, LLC, Dennis Paul Fobes, on behalf of himself and all others similarly situated, Leigh E. Fobes, on behalf of herself and all others similarly situated, Maidencreek Ventures II LP, Raritan Commons, LLC, Margaret Lambert, on behalf of herself and all others similarly situated, Lawrence W. Gardner, on behalf of themselves and all others similarly situated, Betty L. Gunter, on behalf of herself and all others similarly situated, Texas Competitive Electric Holdings Company LLC, Government Development Bank for Puerto Rico, Carl A. Payne, individually, and on behalf of other members of the general public similarly situated, Guaranty Bank and Trust Company, Individually and on behalf of all others similarly situated, Kenneth W. Coker, individually, and on behalf of other members of the general public similarly situated, The County of Mendocino, County of San Mateo, City of Richmond, County of San Diego, City of Riverside, County of Sacramento, San Diego Association of Governments, Joseph Amabile, Louie Amabile, individually & on behalf of Lue Trading, Inc., Norman Byster, Michael Cahill, Richard Deogracias, individually on behalf of RCD Trading, Inc., Heather M. Earle, on behalf of themselves and all others similarly situated, Henryk Malinowski, on behalf of themselves and all others similarly situated, Marc Federighi, individually on behalf of MCO Trading, Scott Federighi, individually on behalf of Katsco, Inc., Linda Carr, on behalf of themselves and all others similarly situated, Eric Friedman, on behalf of themselves and all others similarly situated, Robert Furlong, individually on behalf of XCOP, Inc., David Gough, County of Riverside, Jerry Weglarz, Brian Haggerty, individually on behalf of BJH Futures, Inc., David Klusendorf, Nathan Weglarz, on behalf of plaintiffs and a class, Directors Financial Group, individually and on behalf of all others similarly situated, Ronald Krug, Christopher Lang, SEIU Pension Plans Master Trust, individually and on behalf of all others similarly situated, Highlander Realty, LLC, John Monckton, Philip Olson, Jeffrey D. Buckley, Federal Home Loan Mortgage Corporation, Brett Pankau, David Vecchione, individually on behalf of Vecchione & Associates, Randall Williams, John Henderson, 303 Proprietary Trading LLC, Margery Teller, CEMA Joint Venture, Nicholas Pesa, Eduardo Restani, Principal Funds, Inc., PFI Bond & Mortgage Securities Fund, PFI Bond Market Index Fund, PFI Core Plus Bond I Fund, PFI Diversified Real Asset Fund, PFI Equity Income Fund, PFI Global Diversified Income Fund, PFI Government &High Quality Bond Fund, PFI High Yield Fund, PFI High Yield Fund I, PFI Income Fund, PFI Inflation Protection Fund, PFI Short-Term Income Fund, PFI Money Market Fund, PFI Preferred Securities Fund, Principal Variable Contracts Funds, Inc., PVC Asset Allocation Account, PVC Money Market Account, PVC Balanced Account, PVC Bond & Mortgage Securities Account, PVC Equity Income Account, PVC Government & High Quality Bond Account, PVC Income Account, PVC Short-Term Income Account, Principal Financial Case 17-1569, Document 472-2, 03/08/2018, 2252317, Page4 of 10 Group, Inc., Principal Financial Services, Inc., Principal Life Insurance Company, Principal Capital Interest Only I, LLC, Principal Commercial Funding, LLC, Principal Commercial Funding II, LLC, Principal Real Estate Investors, LLC, Vito Spillone, Brian McCormick, Maxwell Van De Velde, Individually and on behalf of all others similarly situated, Independence Trading, Inc., Insulators and Asbestos Workers Local #14, Individually and on behalf of all others similarly situated, Courmont & Wapner Associates, L.P., on behalf of itself and all others similarly situated, Salix Capital Ltd., FTC Capital GMBH, on behalf of themselves and all others similarly situated, City of New Britain Firefighters' and Police Benefit Fund, Direct Action Plaintiffs, Federal National Mortgage Association, Triaxx Prime CDO 2006-1, Ltd., Triaxx Prime CDO 2006-2, Ltd., Triaxx Prime CDO 2007-1, Ltd., Federal Deposit Insurance Corporation, as Receiver, Fran P. Goldsleger, National Asbestos Workers Pension Fund, Pension Trust for Operating Engineers, Hawaii Annuity Trust Fund for Operating Engineers, Cement Masons' International Association Employees' Trust Fund, individually and on behalf of all others similarly situated, Axiom Investment Advisors, LLC, Axiom HFT LLC, Axiom Investment Advisors Holdings L.P., Axiom Investment Company, LLC, Axiom Investment Company Holdings L.P., Axiom FX Investment Fund, L.P., Axiom FX Investment Fund II, L.P., Axiom FX Investment 2X Fund, L.P., Ephraim F. Gildor, Gildor Family Advisors L.P., Gildor Family Company L.P., Gildor Management, LLC, Prudential Core Taxable Money Market Fund, Plaintiffs, – v. – Lloyds Banking Group plc, Bank of America Corporation, The Royal Bank of Scotland Group PLC, Citibank, N.A., Credit Suisse Group AG, Deutsche Bank AG, JPMorgan Chase & Co., The Norinchukin Bank, HBOS plc, Royal Bank of Canada, HSBC Bank PLC, Citigroup Inc., Cooperatieve Rabobank U.A., FKA Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., JPMorgan Chase Bank, N.A., The Bank of Tokyo-Mitsubishi UFJ, Ltd., Bank of America, N.A., Barclays Bank PLC, WestDeutsche ImmobilienBank AG, Portigon AG, FKA WestLB AG, HSBC Holdings PLC, WestLB AG, Societe Generale, Cooperatieve Centrale Raiffeisen - Boerenleenbank B.A., Credit Suisse International, Credit Suisse (USA), Inc., The Royal Bank of Scotland PLC, Credit Suisse AG, HSBC Securities (USA) Inc., HSBC Bank USA, N.A., HSBC Finance Corporation, Barclays Capital Inc., HSBC USA, Inc., The Hong Kong and Shanghai Banking Corporation Ltd., RBC Capital Markets LLC, Bank of America N.A., Rabobank Group, UBS Securities LLC, Citi Swapco Inc., BBA Enterprises, Ltd., BBA Libor, Ltd., British Bankers' Association, Merrill Lynch, Pierce, Fenner & Smith Incorporated, FKA Banc of America Securities, LLC, Citigroup Financial Case 17-1569, Document 472-2, 03/08/2018, 2252317, Page5 of 10 Products, Inc., J.P. Morgan Bank Dublin PLC, FKA Bear Stearns Bank PLC, UBS Limited, Credit Suisse Group International, UBS AG, Defendants-Appellees, Credit Agricole S.A., Sumitomo Mitsui Banking Corporation, BNP Paribas S.A., RBS Citizens, N.A., incorrectly sued as othe Charter One Bank NA, RBS Citizens, N.A., Credit Suisse Group, NA, Citizens Bank of Massachusetts, agent of RBS Citizens Bank, NA, Barclays US Funding LLC, Deutsche Bank Financial LLC, Does 1 Through 10, Societe Generale Corporate & Investment Banking, National Association, Stephanie Nagel, John Does #1- #5, National Collegiate Student Loan Trust 2007-1, Chase Bank USA, N.A., J.P. Morgan Clearing Corp., Bank of America Securities LLC, Centrale Raiffeisen-Berenleenbank B.A., UBS AG, Royal Bank of Scotland Group PLC, Bank of Nova Scotia, Credit Suisse Securities (USA) LLC, RBS Group, Lloyds Bank PLC, FKA Lloyds Bank plc, Citizens Bank N.A., Credit Suisse Securities (USA) LLC, Citigroup Global Markets, Inc., The Royal Bank of Scotland PLC, Lloyds Bank plc, Citigroup Funding, Inc., Societe Generale S.A., Barclays PLC, J.P. Morgan Securities LLC, FKA J.P. Morgan Securities Inc., Deutsche Bank Securities Incorporated, Banc of America Securities, LLC, RBS Securities Inc., FKA Greenwich Capital Markets, Inc., Lloyds TSB Bank PLC, ICAP plc, J.P. Morgan Markets Ltd., Bank of America Home Loans, Merrill Lynch Capital Services, Inc., Citigroup Global Markets Limited, Merrill Lynch & Co., Inc., Merrill Lynch International Bank, Ltd., Bear Stearns Capital Markets, Inc., Barclays Capital (Cayman) Limited, Institute of International Bankers, Clearing House Association L.L.C., Defendants. Arun S. Subramanian, Esq., pursuant to 28 U.S.C. § 1746, declares and affirms as follows: 1. I am a member of the bar of this Court and one of the counsel of record for Plaintiffs-Appellants Mayor and City Council of Baltimore, City of New Britain, Jennie Stuart Medical Center, Inc., Vistra Energy Corporation, and Yale University ("OTC Plaintiffs") in the above-captioned action. I submit this Case 17-1569, Document 472-2, 03/08/2018, 2252317, Page6 of 10 declaration in support of Plaintiffs-Appellants' unopposed motion for limited remand pursuant to Federal Rule of Appellate Procedure 12.1(a). 2. On February 23, 2018, OTC Plaintiffs filed an unopposed motion for an indicative ruling in the District Court pursuant to Federal Rule of Civil Procedure 62.1. The motion requested that the District Court indicate whether it would grant a motion for relief from judgment under Rule 60(b)(6). The District Court had previously entered judgment under Rule 54(b) on June 13, 2017 dismissing Defendants-Appellees HSBC Holdings plc and HSBC Bank plc (together, "HSBC") from OTC Plaintiffs' action. OTC Plaintiffs sought relief from judgment so that the District Court could consider under Rule 23(e) a proposed class action settlement between OTC Plaintiffs and HSBC Bank plc (the "Settlement"). 3. On March 1, 2018, the District Court granted the motion for an indicative ruling. See Exhibit A attached hereto. The District Court stated as follows: The Court states that if the United States Court of Appeals for the Second Circuit remands the case solely for the purpose of allowing the Court to consider whether a settlement reached between OTC Plaintiffs and HSBC Bank plc may be approved under Rule 23(e), the Court would grant OTC Plaintiffs' motion for relief under Rule 60(b)(6) and amend the Judgment [Dkt. 1970] to exclude HSBC, subject to reinstatement of the Judgment in the event the settlement is not ultimately approved or does not otherwise become effective for any reason. Case 17-1569, Document 472-2, 03/08/2018, 2252317, Page7 of 10 4. Pursuant to Federal Rule of Appellate Procedure 12.1(a), OTC Plaintiffs hereby provide notice of the District Court's indicative ruling under Federal Rule of Civil Procedure 62.1 and move this Court to remand as to HSBC for the limited purpose of allowing the District Court to consider final approval of the Settlement, allowing the District Court to enter a Final Judgment and other orders related to the Settlement. 5. Should this Court agree to the limited remand of this Appeal as to HSBC, the parties will promptly notify this Court when the District Court has made its ruling as to final approval of the Settlement. 6. In the event that the District Court grants final approval of the Settlement, Plaintiffs-Appellants will move to dismiss their Appeal as to HSBC. 7. In the event that the District Court denies final approval of the Settlement, or if the Settlement does not become effective for any reason, the parties will immediately move this Court to resume the Appeal as to HSBC and reset any applicable due dates. I declare under penalty of perjury that the foregoing is true and correct. Dated: March 8, 2018 Respectfully submitted, By: /s/ Arun S. Subramanian Arun S. Subramanian Case 17-1569, Document 472-2, 03/08/2018, 2252317, Page8 of 10 EXHIBIT A Case Case Case 1:11-cv-05450-NRB 17-1569, Document 1:11-md-02262-NRB Document 472-2, 03/08/2018, Document 388 Filed 2442-2 2252317, Filed 03/01/18 02/23/18Page9 Pageof1110 Page of22 of IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK IN RE: LIBOR-BASED FINANCIAL MDL No. 2262 (NRB) - · ··- USDC SP, i INSTRUMENTS ANTITRUST LITIGATION DOCUMENT ELECTRONICALLY FILED THIS DOCUMENT RELATES TO: DOC#: DATE FILED: ll ~' \ } MAYOR AND CITY COUNCIL OF No. 11-cv-5450 (NRB) BALTIMORE, et al., Plaintiffs, V. CREDIT SUISSE AG, et al., Defendants. [PR(}P6SED] ORDER GRANTING OTC PLAINTIFFS' UNOPPOSED MOTION FOR INDICATIVE RULING OTC Plaintiffs, with consent from Defendants HSBC Holdings pie and HSBC Bank pie (together, "HSBC"), having moved pursuant to Rule 62.l(a)(3) of the Federal Rules of Civil Procedure for an indicative ruling statmg that this Court would grant OTC Plaintiffs' motion for relief under Rule 60(b)(6) from the Court's judgment in the OTC Action, the Court having considered the motion and the submissions in support thereof, and the Court being duly advised, OTC Plaintiffs' motion for indicative ruling is hereby GRANTED. The Court states that if the United States Court of Appeals for the Second Circuit remands the case solely for the purpose of allowing the Court to consider whether a settlement reached between OTC Plaintiffs and HSBC Bank plc may be approved under Rule 23(e), the Court would grant OTC Plaintiffs' motion for relief under Rule 60(b)(6) and amend the 5621668vl/012751 Case Case Case 1:11-cv-05450-NRB 17-1569, Document 1:11-md-02262-NRB 472-2, Document Document 03/08/2018, 388 Filed 2442-2 2252317, Filed 03/01/18 Page10 02/23/18 Page2of Page 2of10 of22 Judgement [Dkt. 1970] to exclude HSBC, subject to reinstatement of the Judgment in the event the settlement is not ultimately approved or does not otherwise become effective for any reason. IT IS SO ORDERED. Dated: New York, New York l!~_/,2018 L~ NAOMI REICBUCHWAW UNITED STATES DISTRICT ruDGE 5621668vl/012751 Case 17-1569, Document 472-3, 03/08/2018, 2252317, Page1 of 4 CERTIFICATE OF SERVICE Pursuant to Federal Rule of Appellate Procedure 25(a)(2)(D), (b) & (c) and 2nd Cir. Local Rule 25.1(h), I certify that I have served the foregoing: Unopposed Motion for Limited Remand Pursuant to FRAP 12.1(a) and Declaration of Arun S. Subramanian in Support of Unopposed Motion On all counsel of record for parties this 8th day of March, 2018, via the Court's electronic case filing system: Arthur J. Burke Jonathan D. Schiller Paul S. Mishkin Leigh M. Nathanson Adam G. Mehes BOIES, SCHILLER & FLEXNER LLP DAVIS POLK & WARDWELL 575 Lexington Avenue 450 Lexington Avenue New York, NY 10022 New York, NY 10017 Telephone: (212) 446-2300 Telephone: (212) 450-4000 Facsimile: (212) 446-2350 Facsimile: (212) 450-3352 jschiller@bsfllp.com arthur.burke@davispolk.com lnathanson@bsfllp.com paul.mishkin@davispolk.com adam.mehes@davispolk.com Michael A. Brille BOIES, SCHILLER & FLEXNER LLP Attorneys for Bank of America 1401 New York Avenue, NW Corporation and Bank of America, N.A. Washington, DC 20005 Telephone: (202) 237-2727 Facsimile: (202) 237-6131 mbrille@bsfllp.com Attorneys for Barclays Bank PLC Alan M. Wiseman David R. Gelfand COVINGTON & BURLING LLP Robert C. Hora 1201 Pennsylvania Avenue, NW Mark D. Villaverde Washington, DC 20004 MILBANK, TWEED, HADLEY & Telephone: (202) 662-5457 MCCLOY LLP Facsimile: (202) 778-5457 28 Liberty Street awiseman@cov.com New York, NY 10005 Case 17-1569, Document 472-3, 03/08/2018, 2252317, Page2 of 4 Telephone: (212) 530-5000 Andrew A. Ruffino Facsimile: (212) 822-5520 COVINGTON & BURLING LLP dgelfand@milbank.com 620 Eighth Avenue rhora@milbank.com New York, NY 10018-1405 mvillaverde@milbank.com Telephone: (212) 841-1000 Facsimile: (212) 841-1010 Attorneys for Cooperatieve Centrale aruffino@cov.com Raiffeisen-Boerenleenbank B.A. (n/k/a Cooperatieve Rabobank U.A.) Attorneys for Citigroup, Inc. and Citibank, N.A. Herbert S. Washer Moses Silverman Elai E. Katz Aidan Synnott Joel Kurtzberg PAUL, WEISS, RIFKIND, WHARTON CAHILL GORDON & REINDEL LLP & GARRISON LLP 80 Pine Street 1285 Avenue of the Americas New York, NY 10005 New York, NY 10019 Telephone: (212) 701-3000 Telephone: (212) 373-3355 Facsimile: (212) 269-5420 Facsimile: (212) 492-0355 hwasher@cahill.com msilverman@paulweiss.com ekatz@cahill.com asynnott@paulweiss.com jkurtzberg@cahill.com Attorneys for Credit Suisse Group AG; Attorneys for Deutsche Bank AG Credit Suisse (USA), Inc.; and Credit Suisse International Gregory T. Casamento Thomas C. Rice R. James DeRose, III Paul C. Gluckow LOCKE LORD LLP Alan C. Turner Brookfield Place Alexander N. Li 200 Vesey Street, 20th Floor SIMPSON THACHER & BARTLETT New York, NY 10281 LLP Telephone: (212) 415-8600 425 Lexington Avenue Facsimile: (212) 812-8379 New York, NY 10017 edeyoung@lockelord.com Telephone: (212) 455-2000 gcasamento@lockelord.com Facsimile: (212) 455-2502 rderose@lockelord.com trice@stblaw.com pgluckow@stblaw.com Roger B. Cowie aturner@stblaw.com LOCKE LORD LLP zander.li@stblaw.com Case 17-1569, Document 472-3, 03/08/2018, 2252317, Page3 of 4 2200 Ross Avenue, Suite 2200 Dallas, TX 75201 Abram J. Ellis Telephone: (214) 740-8614 SIMPSON THACHER & BARTLETT Facsimile: (214) 740-8800 LLP rcowie@lockelord.com 900 G Street, NW Washington, DC 20001 Julia C. Webb Telephone: (202) 636-5500 J. Matthew Goodin Facsimile: (202) 636-5502 LOCKE LORD LLP aellis@stblaw.com 111 South Wacker Drive Telephone: (312) 443-0404 Attorneys for JPMorgan Chase & Co. Facsimile: (312) 896-6404 and JPMorgan Chase Bank, National jwebb@lockelord.com Association jmgoodin@lockelord.com Attorneys for HSBC Bank PLC and HSBC Holdings PLC Marc J. Gottridge Robert T. Smith Lisa J. Fried Christian T. Kemnitz HOGAN LOVELLS US LLP KATTEN MUCHIN ROSENMAN, 875 Third Avenue LLP New York, NY 10022 525 West Monroe Street Telephone: (212) 918-3000 Chicago, IL 60661 Facsimile: (212) 918-3100 Telephone: (312) 902-5200 marc.gottridge@hoganlovells.com Facsimile: (312) 902-1061 lisa.fried@hoganlovells.com robert.smith@kattenlaw.com christian.kemnitz@kattenlaw.com Attorneys for Lloyds Banking Group PLC; Lloyds Bank PLC; and HBOS PLC Attorneys for Royal Bank of Canada Daryl A. Libow Andrew W. Stern Christopher M. Viapiano Alan M. Unger SULLIVAN & CROMWELL LLP Thomas A. Paskowitz 1700 New York Avenue, N.W., Suite SIDLEY AUSTIN LLP 700 787 Seventh Avenue Washington, DC 20006-5215 New York, NY 10019 Telephone: (202) 956-7500 Telephone: (212) 839-5300 Facsimile: (202) 293-6330 Facsimile: (212) 839-5599 libowd@sullcrom.com astern@sidley.com viapianoc@sullcrom.com aunger@sidley.com Case 17-1569, Document 472-3, 03/08/2018, 2252317, Page4 of 4 tpaskowitz@sidley.com Attorneys for Bank of Tokyo-Mitsubishi UFJ, Ltd. Attorneys for The Norinchukin Bank David S. Lesser Steven Wolowitz WILMER CUTLER PICKERING Henninger S. Bullock HALE AND DORR LLP Andrew J. Calica 7 World Trade Center MAYER BROWN LLP New York, NY 10007 1221 Avenue of the Americas Telephone: (212) 230-8851 New York, NY 10020-1001 Facsimile: (212) 230-8888 Telephone: (212) 506-2500 david.lesser@wilmerhale.com Facsimile: (212) 262-1910 swolowitz@mayerbrown.com Attorneys for The Royal Bank of hbullock@mayerbrown.com Scotland Group PLC and Citizens Bank acalica@mayerbrown.com of Massachusetts (a/k/a RBS Citizens Bank, N.A.) Attorneys for Societe Generale S.A. Peter Sullivan Christopher M. Paparella Lawrence J. Zweifach HUGHES HUBBARD & REED LLP Jefferson E. Bell One Battery Park Plaza Eric J. Stock New York, NY 10004 GIBSON, DUNN & CRUTCHER, LLP Telephone: (212) 837-6000 200 Park Avenue, 47th Floor Facsimile: (212) 422-4726 New York, NY 10166 Chris.Paparella@hugheshubbard.com Telephone: (212) 351-4000 Facsimile: (212) 351-4035 Attorneys for Westlb AG (n/k/a Portigon psullivan@gibsondunn.com AG) and Westdeutsche ImmobilienBank lzweifach@gibsondunn.com AG jbell@gibsondunn.com estock@gibsondunn.com Attorneys for UBS AG /s/ Arun S. Subramanian Arun S. Subramanian

MOTION ORDER, granting Appellants request to remand only as between themselves and Appellees HSBC Holdings and HSBC Bank in dockets 17-1569 and 17-1915. [{{472}}] filed by Appellant Yale University, Mayor and City Council of Baltimore, City of New Britain, Jennie Stuart Medical Center, Inc. and Vistra Energy Corporation in 17-1569, 17-1915. Appellants are directed to file a status update letter with the court every 30 days beginning 30 days from the date of this order by DAL, FILED. [2258550][476] [17-1569, 17-1915, 17-1989, 17-2056, 17-2343, 17-2347, 17-2351, 17-2352, 17-2360, 17-2376, 17-2381, 17-2383, 17-2413] [Entered: 03/16/2018 11:46 AM]

Case 17-1569, Document 476, 03/16/2018, 2258550, Page1 of 1 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT At a Stated Term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 16th day of March, two thousand and eighteen. Before: Debra Ann Livingston, Circuit Judge. ________________________________ Schwab Short-Term Bond Market Fund, et al., ORDER Plaintiffs - Appellants, Docket No. 17-1569(L), 17-1915(con), 17- Carpenters Pension Fund of West Virginia, et 1989, 17-2056(con), 17-2343(con), 17- al., 2347(con), 17-2351(con), 17-2352(con), 17- 2360(con), 17-2376(con),17-2381(con), 17- Plaintiffs, 2383(con), 2413(con) v. Lloyds Banking Group plc, Bank of America Corporation, et al, Defendants - Appellees, Credit Agricole S.A., et al., Defendants. ________________________________ Appellants, City of New Britain, Jennie Stuart Medical Center, Inc., Mayor and City Council of Baltimore, Vistra Energy Corporation and Yale University, move for a limited remand. Specifically, Appellants request remand only as between themselves and Appellees HSBC Holdings and HSBC Bank in dockets 17-1569 and 17-1915. IT IS HEREBY ORDERED that the motion is GRANTED. Appellants are directed to file a status update letter with the court every 30 days beginning 30 days from the date of this order. For the Court: Catherine O'Hagan Wolfe, Clerk of Court

CERTIFIED ORDER, dated 03/16/2018, to SDNY (NEW YORK CITY), ISSUED.[2258560] [17-1569, 17-1915, 17-1989, 17-2056, 17-2343, 17-2347, 17-2351, 17-2352, 17-2360, 17-2376, 17-2381, 17-2383, 17-2413] [Entered: 03/16/2018 11:50 AM]

Case 17-1569, Document 477, 03/16/2018, 2258560, Page1 of 1 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT At a Stated Term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 16th day of March, two thousand and eighteen. Before: Debra Ann Livingston, Circuit Judge. ________________________________ Schwab Short-Term Bond Market Fund, et al., ORDER Plaintiffs - Appellants, Docket No. 17-1569(L), 17-1915(con), 17- Carpenters Pension Fund of West Virginia, et 1989, 17-2056(con), 17-2343(con), 17- al., 2347(con), 17-2351(con), 17-2352(con), 17- 2360(con), 17-2376(con),17-2381(con), 17- Plaintiffs, 2383(con), 2413(con) v. Lloyds Banking Group plc, Bank of America Corporation, et al, Defendants - Appellees, Credit Agricole S.A., et al., Defendants. ________________________________ Appellants, City of New Britain, Jennie Stuart Medical Center, Inc., Mayor and City Council of Baltimore, Vistra Energy Corporation and Yale University, move for a limited remand. Specifically, Appellants request remand only as between themselves and Appellees HSBC Holdings and HSBC Bank in dockets 17-1569 and 17-1915. IT IS HEREBY ORDERED that the motion is GRANTED. Appellants are directed to file a status update letter with the court every 30 days beginning 30 days from the date of this order. For the Court: Catherine O'Hagan Wolfe, Clerk of Court CERTIFIED COPY ISSUED ON 03/16/2018

MOTION, to seal document, on behalf of Appellant Charles Schwab & Co., Inc., Charles Schwab Bank, N.A., Schwab Advisor Cash Reserves, Schwab Cash Reserves, Schwab Investor Money Fund, Schwab Money Market Fund, Schwab Retirement Advantage Money Fund, Schwab Short-Term Bond Market Fund, Schwab Total Bond Market Fund, Schwab U.S. Dollar Liquid Assets Fund, Schwab Value Advantage Money Fund, Schwab YieldPlus Fund, Schwab YieldPlus Fund Liquidation Trust and The Charles Schwab Corporation in 17-1569, Appellant Ellen Gelboim and Linda Zacher in 17-1989, FILED. Service date 03/16/2018 by CM/ECF. [2259166] [17-1569, 17-1915, 17-1989, 17-2056, 17-2343, 17-2347, 17-2351, 17-2352, 17-2360, 17-2376, 17-2381, 17-2383, 17-2413] [Entered: 03/16/2018 08:46 PM]

Case 17-1569, Document 478, 03/16/2018, 2259166, Page1 of 85 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Thurgood Marshall U.S. Courthouse 40 Foley Square, New York, NY 10007 Telephone: 212-857-8500 MOTION INFORMATION STATEMENT Docket Number(s): 17-1569(L) Caption [use short title] Motion for: Filing under seal Joint Reply Brief for In re LIBOR-Based Financial Instruments Antitrust Litigation Plaintiffs-Appellants Regarding Personal Jurisdiction Set forth below precise, complete statement of relief sought: We submit a motion to file an under seal version of the Joint Reply Brief for Plaintiffs-Appellants Regarding Personal Jurisdiction, due to its discussing certain materials sealed before the district court and designated confidential under the district court protective order. We request the Court deny this motion. MOVING PARTY: See Attachment #1 OPPOSING PARTY: See Attachment #2 ✔ 9 Plaintiff 9 Defendant ✔9 Appellant/Petitioner 9 Appellee/Respondent MOVING ATTORNEY: Eric F. Citron OPPOSING ATTORNEY: See Attachment #2 [name of attorney, with firm, address, phone number and e-mail] Goldstein & Russell, P.C. 7475 Wisconsin Ave., Suite 850, Bethesda, MD 20814 (202) 362-0636; ecitron@goldsteinrussell.com Court-Judge/Agency appealed from: S. District Court for the Southern District of N.Y. (Buchwald, J.) Please check appropriate boxes: FOR EMERGENCY MOTIONS, MOTIONS FOR STAYS AND INJUNCTIONS PENDING APPEAL: Has movant notified opposing counsel (required by Local Rule 27.1): Has request for relief been made below? 9 Yes 9 No ✔9 Yes 9 No (explain): Has this relief been previously sought in this Court? 9 Yes 9 No Requested return date and explanation of emergency: Opposing counsel's position on motion: ✔ 9 Unopposed 9 Opposed 9 Don't Know Does opposing counsel intend to file a response: 9 Yes 9 No 9 Don't Know ✔ Is oral argument on motion requested? 9 Yes ✔ 9 No (requests for oral argument will not necessarily be granted) Has argument date of appeal been set? 9 Yes ✔ 9 No If yes, enter date:__________________________________________________________ Signature of Moving Attorney: /s/ Eric F. Citron ___________________________________Date: March 16, 2018 ___________________ Service by: ✔ 9 CM/ECF 9 Other [Attach proof of service] Form T-1080 (rev. 12-13) Case 17-1569, Document 478, 03/16/2018, 2259166, Page2 of 85 ATTACHMENT #1: LIST OF MOVING PARTIES (PLAINTIFFS-APPELLANTS) Dkt. #17-1569 Schwab Money Market Fund Schwab Value Advantage Money Fund Schwab Retirement Advantage Money Fund Schwab Investor Money Fund Schwab Cash Reserves Schwab Advisor Cash Reserves Schwab YieldPlus Fund Schwab YieldPlus Fund Liquidation Trust Charles Schwab Bank, N.A. Charles Schwab & Co., Inc. The Charles Schwab Corporation Schwab Short-Term Bond Market Fund Schwab Total Bond Market Fund Schwab U.S. Dollar Liquid Assets Fund Dkt. #17-1915 Mayor and City Council of Baltimore City of New Britain Vistra Energy Corporation Yale University Jennie Stuart Medical Center, Inc. Dkt. #17-1989 Ellen Gelboim Linda Zacher Dkt. #17-2056 Metzler Investment GmbH FTC Futures Funds SICAV FTC Futures Fund PCC Ltd. Atlantic Trading USA, LLC 303030 Trading LLC Gary Francis Nathaniel Haynes Dkt. #17-2343 Bay Area Toll Authority Dkt. #17-2347 The City of Philadelphia The Pennsylvania Intergovernmental Cooperation Authority 1 Case 17-1569, Document 478, 03/16/2018, 2259166, Page3 of 85 Dkt. #17-2351 Salix Capital US, Inc. Dkt. #17-2352 Darby Financial Products Capital Ventures International Dkt. #17-2360 Prudential Investment Portfolios 2 Dkt. #17-2376 City of Houston Dkt. #17-2381 Salix Capital US, Inc. Dkt. #17-2383 National Credit Union Administration Board Dkt. #17-2413 California Public Plaintiffs San Diego Association of Governments City of Richmond City of Riverside County of Mendocino County of Sacramento County of San Diego County of San Mateo County of Sonoma Regents of the University of California East Bay Municipal Utility District Richmond Joint Powers Financing Authority Successor Agency to the Richmond Community Redevelopment Agency Riverside Public Financing Authority The San Mateo County Joint Powers Financing Authority David E. Sundstrom 2 Case 17-1569, Document 478, 03/16/2018, 2259166, Page4 of 85 ATTACHMENT #2: LIST OF OPPOSING PARTIES AND THEIR ATTORNEYS BANK OF AMERICA CORPORATION; BANK OF AMERICA, N.A.; and MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED (f/k/a BANC OF AMERICA SECURITIES, LLC) Arthur J. Burke Paul S. Mishkin Adam G. Mehes DAVIS POLK & WARDWELL 450 Lexington Avenue New York, NY 10017 Telephone: (212) 450-4000 Facsimile: (212) 450-3352 arthur.burke@davispolk.com paul.mishkin@davispolk.com adam.mehes@davispolk.com BARCLAYS BANK PLC and BARCLAYS CAPITAL INC. Jonathan D. Schiller Leigh M. Nathanson BOIES, SCHILLER & FLEXNER LLP 575 Lexington Avenue New York, NY 10022 Telephone: (212) 446-2300 Facsimile: (212) 446-2350 jschiller@bsfllp.com lnathanson@bsfllp.com Michael A. Brille BOIES, SCHILLER & FLEXNER LLP 1401 New York Avenue, NW Washington, DC 20005 Telephone: (202) 237-2727 Facsimile: (202) 237-6131 mbrille@bsfllp.com 1 Case 17-1569, Document 478, 03/16/2018, 2259166, Page5 of 85 CITIGROUP INC.; CITIBANK, N.A.; CITIGROUP FINANCIAL PRODUCTS, INC.; and CITI SWAPCO INC. Alan M. Wiseman COVINGTON & BURLING LLP 1201 Pennsylvania Avenue, NW Washington, DC 20004 Telephone: (202) 662-5457 Facsimile: (202) 778-5457 awiseman@cov.com Andrew A. Ruffino COVINGTON & BURLING LLP 620 Eighth Avenue New York, NY 10018-1405 Telephone: (212) 841-1000 Facsimile: (212) 841-1010 aruffino@cov.com COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A. (n/k/a COÖPERATIEVE RABOBANK U.A.) and RABOBANK GROUP David R. Gelfand Robert C. Hora Mark D. Villaverde Jonathan Ohring MILBANK, TWEED, HADLEY & MCCLOY LLP 28 Liberty Street New York, NY 10005 Telephone: (212) 530-5000 Facsimile: (212) 822-5520 dgelfand@milbank.com rhora@milbank.com mvillaverde@milbank.com johring@milbank.com 2 Case 17-1569, Document 478, 03/16/2018, 2259166, Page6 of 85 CREDIT SUISSE AG; CREDIT SUISSE GROUP AG; CREDIT SUISSE (USA), INC.; CREDIT SUISSE INTERNATIONAL; and CREDIT SUISSE GROUP INTERNATIONAL Herbert S. Washer Elai E. Katz Joel Kurtzberg Jason M. Hall Adam Mintz CAHILL GORDON & REINDEL LLP 80 Pine Street New York, NY 10005 Telephone: (212) 701-3000 Facsimile: (212) 269-5420 hwasher@cahill.com ekatz@cahill.com jkurtzberg@cahill.com jhall@cahill.com amintz@cahill.com DEUTSCHE BANK AG Moses Silverman Aidan Synnott PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 1285 Avenue of the Americas New York, NY 10019 Telephone: (212) 373-3355 Facsimile: (212) 492-0355 msilverman@paulweiss.com asynnott@paulweiss.com 3 Case 17-1569, Document 478, 03/16/2018, 2259166, Page7 of 85 HSBC BANK PLC; HSBC HOLDINGS PLC; HSBC SECURITIES (USA) INC.; HSBC BANK USA, N.A.; HSBC FINANCE CORPORATION; HSBC USA, INC.; and THE HONG KONG AND SHANGHAI BANKING CORPORATION LTD. Gregory T. Casamento R. James DeRose, III LOCKE LORD LLP Brookfield Place 200 Vesey Street, 20th Floor New York, NY 10281 Telephone: (212) 415-8600 Facsimile: (212) 812-8379 edeyoung@lockelord.com gcasamento@lockelord.com rderose@lockelord.com Roger B. Cowie LOCKE LORD LLP 2200 Ross Avenue, Suite 2200 Dallas, TX 75201 Telephone: (214) 740-8614 Facsimile: (214) 740-8800 rcowie@lockelord.com Julia C. Webb J. Matthew Goodin LOCKE LORD LLP 111 South Wacker Drive Telephone: (312) 443-0404 Facsimile: (312) 896-6404 jwebb@lockelord.com jmgoodin@lockelord.com Jack Ballard BALLARD & LITTLEFIELD, LLP 3700 Buffalo Speedway, Suite 250 Houston, TX 77098 Telephone: (713) 403-6400 4 Case 17-1569, Document 478, 03/16/2018, 2259166, Page8 of 85 JPMORGAN CHASE & CO.; JPMORGAN CHASE BANK, N.A.; and J.P. MORGAN BANK DUBLIN PLC (f/k/a BEAR STEARNS BANK PLC) Thomas C. Rice Paul C. Gluckow Alan C. Turner Alexander N. Li SIMPSON THACHER & BARTLETT LLP 425 Lexington Avenue New York, NY 10017 Telephone: (212) 455-2000 Facsimile: (212) 455-2502 trice@stblaw.com pgluckow@stblaw.com aturner@stblaw.com zander.li@stblaw.com Abram J. Ellis SIMPSON THACHER & BARTLETT LLP 900 G Street, NW Washington, DC 20001 Telephone: (202) 636-5500 Facsimile: (202) 636-5502 aellis@stblaw.com ROYAL BANK OF CANADA and RBC CAPITAL MARKETS LLC Robert T. Smith Christian T. Kemnitz KATTEN MUCHIN ROSENMAN, LLP 525 West Monroe Street Chicago, IL 60661 Telephone: (312) 902-5200 Facsimile: (312) 902-1061 robert.smith@kattenlaw.com christian.kemnitz@kattenlaw.com 5 Case 17-1569, Document 478, 03/16/2018, 2259166, Page9 of 85 LLOYDS BANKING GROUP PLC; LLOYDS BANK PLC; and HBOS PLC Neal K. Katyal Eugene A. Sokoloff Allison Turbiville HOGAN LOVELLS US LLP 555 13th Street, NW Washington, DC 20004 Telephone: (202) 637-5600 Facsimile: (202) 637-5910 neal.katyal@hoganlovells.com eugene.sokoloff@hoganlovells.com allison.turbiville@hoganlovells.com Marc J. Gottridge Lisa J. Fried HOGAN LOVELLS US LLP 875 Third Avenue New York, NY 10022 Telephone: (212) 918-3000 Facsimile: (212) 918-3100 marc.gottridge@hoganlovells.com lisa.fried@hoganlovells.com THE BANK OF TOKYO-MITSUBISHI UFJ, LTD. Daryl A. Libow Christopher M. Viapiano SULLIVAN & CROMWELL LLP 1700 New York Avenue, N.W., Suite 700 Washington, DC 20006-5215 Telephone: (202) 956-7500 Facsimile: (202) 293-6330 libowd@sullcrom.com viapianoc@sullcrom.com 6 Case 17-1569, Document 478, 03/16/2018, 2259166, Page10 of 85 THE NORINCHUKIN BANK Andrew W. Stern Alan M. Unger Thomas A. Paskowitz SIDLEY AUSTIN LLP 787 Seventh Avenue New York, NY 10019 Telephone: (212) 839-5300 Facsimile: (212) 839-5599 astern@sidley.com aunger@sidley.com tpaskowitz@sidley.com THE ROYAL BANK OF SCOTLAND GROUP PLC and THE ROYAL BANK OF SCOTLAND PLC David S. Lesser WILMER CUTLER PICKERING HALE AND DORR LLP 7 World Trade Center New York, NY 10007 Telephone: (212) 230-8851 Facsimile: (212) 230-8888 david.lesser@wilmerhale.com SOCIETE GENERALE S.A. Steven Wolowitz Henninger S. Bullock Andrew J. Calica MAYER BROWN LLP 1221 Avenue of the Americas New York, NY 10020-1001 Telephone: (212) 506-2500 Facsimile: (212) 262-1910 swolowitz@mayerbrown.com hbullock@mayerbrown.com acalica@mayerbrown.com 7 Case 17-1569, Document 478, 03/16/2018, 2259166, Page11 of 85 UBS AG; UBS SECURITIES LLC; and UBS LIMITED Mark A. Kirsch Lawrence J. Zweifach Jefferson E. Bell Eric J. Stock GIBSON, DUNN & CRUTCHER, LLP 200 Park Avenue, 47th Floor New York, NY 10166 Telephone: (212) 351-4000 Facsimile: (212) 351-4035 mkirsch@gibsondunn.com lzweifach@gibsondunn.com jbell@gibsondunn.com estock@gibsondunn.com WESTLB AG (n/k/a PORTIGON AG) and WESTDEUTSCHE IMMOBILIENBANK AG Christopher M. Paparella HUGHES HUBBARD & REED LLP One Battery Park Plaza New York, NY 10004 Telephone: (212) 837-6000 Facsimile: (212) 422-4726 Chris.Paparella@hugheshubbard.com BRITISH BANKERS' ASSOCIATION; BBA ENTERPRISES LTD.; and BBA LIBOR LTD. Jeff G. Hammel LATHAM & WATKINS LLP 885 Third Avenue New York, NY 10022 Telephone: (212) 906-1200 Facsimile: (212)-751-4864 jeff.hammel@lw.com 8 17-1569(L), Case 17-1569, Document 478, 03/16/2018, 2259166, Page12 of 85 17-1915(CON), 17-1989(CON), 17-2056(CON), 17-2343(CON), 17-2347(CON), 17-2351(CON), 17-2352(CON), 17-2360(CON), 17-2376(CON), 17-2381(CON), 17-2383(CON), 17-2413(CON) United States Court of Appeals for the Second Circuit SCHWAB SHORT-TERM BOND MARKET FUND, SCHWAB TOTAL BOND MARKET FUND, SCHWAB U.S. DOLLAR LIQUID ASSETS FUND, (For Continuation of Caption See Next Page) _______________________________ ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK MOTION TO FILE REPLY BRIEF UNDER SEAL THOMAS C. GOLDSTEIN STEVEN E. FINEMAN ERIC F. CITRON MICHAEL J. MIARMI CHARLES H. DAVIS LIEFF CABRASER HEIMANN GOLDSTEIN & RUSSELL, P.C. & BERNSTEIN, LLP 7475 Wisconsin Avenue, Suite 850 250 Hudson Street, 8th Floor Bethesda, Maryland 20814 New York, New York 10013 (202) 362-0636 (212) 355-9500 – and – Attorneys for the Schwab Plaintiffs-Appellants and Plaintiffs-Appellants Ellen Gelboim and BRENDAN P. GLACKIN Linda Zacher LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 275 Battery Street, 29th Floor San Francisco, California 94111 (415) 956-1000 Attorneys for the Schwab Plaintiffs- Appellants and Plaintiff-Appellant Bay Area Toll Authority (For Continuation of Appearances See Next Page) Case 17-1569, Document 478, 03/16/2018, 2259166, Page13 of 85 SCHWAB MONEY MARKET FUND, SCHWAB VALUE ADVANTAGE MONEY FUND, SCHWAB RETIREMENT ADVANTAGE MONEY FUND, SCHWAB INVESTOR MONEY FUND, SCHWAB CASH RESERVES, SCHWAB ADVISOR CASH RESERVES, CHARLES SCHWAB BANK, N.A., CHARLES SCHWAB & CO., INC., SCHWAB YIELDPLUS FUND, SCHWAB YIELDPLUS FUND LIQUIDATION TRUST, THE CHARLES SCHWAB CORPORATION, CITY OF NEW BRITAIN, on behalf of itself and all others similarly situated, MAYOR AND CITY COUNCIL OF BALTIMORE, CITY OF HOUSTON, VISTRA ENERGY CORPORATION, YALE UNIVERSITY, JENNIE STUART MEDICAL CENTER, INC., FTC FUTURES FUND PCC LTD, on behalf of themselves and all others similarly situated, NATIONAL CREDIT UNION ADMINISTRATION BOARD, as Liquidating Agent of U.S. Central Federal Credit Union, WESTERN CORPORATE FEDERAL CREDIT UNION, MEMBERS UNITED CORPORATE FEDERAL CREDIT UNION, SOUTHWEST CORPORATE FEDERAL CREDIT UNION, and CONSTITUTION CORPORATE FEDERAL CREDIT UNION, PENNSYLVANIA INTERGOVERNMENTAL COOPERATION AUTHORITY, CITY OF PHILADELPHIA, DARBY FINANCIAL PRODUCTS, SALIX CAPITAL US INC., CAPITAL VENTURES INTERNATIONAL, PRUDENTIAL INVESTMENT PORTFOLIOS 2, FKA Dryden Core Investment Fund, on behalf of Prudendtial Core Short-Term Bond Fund, BAY AREA TOLL AUTHORITY, CALIFORNIA PUBLIC PLAINTIFFS, LINDA ZACHER, ELLEN GELBOIM, on behalf of herself and all others similarly situated, GARY FRANCIS, METZLER INVESTMENT GMBH, on behalf of itself and all others similarly situated, 303030 TRADING LLC, ATLANTIC TRADING USA, LLC, FTC FUTURES FUND SICAV, on behalf of themselves and all others similarly situated, NATHANIEL HAYNES, COUNTY OF SONOMA, THE SAN MATEO COUNTY JOINT POWERS FINANCING AUTHORITY, RICHMOND JOINT POWERS FINANCING AUTHORITY, SUCCESSOR AGENCY TO THE RICHMOND COMMUNITY REDEVELOPMENT AGENCY, RIVERSIDE PUBLIC FINANCING AUTHORITY, DAVID E. SUNDSTROM, in his official capacity as Treasurer of the county of Sonoma for and on behalf of the Sonoma County Treasury Pool Investment, EAST BAY MUNICIPAL UTILITY DISTRICT, REGENTS OF THE UNIVERSITY OF CALIFORNIA, Plaintiffs-Appellants, CARPENTERS PENSION FUND OF WEST VIRGINIA, CITY OF DANIA BEACH POLICE & FIREFIGHTERS' RETIREMENT SYSTEM, Individually and on behalf of all others similarly situated, RAVAN INVESTMENTS, LLC, RICHARD HERSHEY, JEFFREY LAYDON, on behalf of himself and all others similarly situated, ROBERTO E. CALLE GRACEY, AVP PROPERTIES, LLC, COMMUNITY BANK & TRUST, BERKSHIRE BANK, Individually and On Behalf of All Others Similarly Situated, ELIZABETH LIEBERMAN, on behalf of themselves and all other similarly situated, TODD AUGENBAUM, on behalf of themselves and all others similarly situated, 33-35 GREEN POND ROAD ASSOCIATES, LLC, on behalf of itself and all others similarly situated, COURTYARD AT AMWELL II, LLC, ANNIE BELL ADAMS, on behalf of herself and all others similarly situated, JILL COURT ASSOCIATES II, LLC, GREENWICH COMMONS II, LLC, DENNIS PAUL FOBES, on behalf of Case 17-1569, Document 478, 03/16/2018, 2259166, Page14 of 85 himself and all others similarly situated, LEIGH E. FOBES, on behalf of herself and all others similarly situated, MAIDENCREEK VENTURES II LP, RARITAN COMMONS, LLC, MARGARET LAMBERT, on behalf of herself and all others similarly situated, LAWRENCE W. GARDNER, on behalf of themselves and all others similarly situated, BETTY L. GUNTER, on behalf of herself and all others similarly situated, TEXAS COMPETITIVE ELECTRIC HOLDINGS COMPANY LLC, GOVERNMENT DEVELOPMENT BANK FOR PUERTO RICO, CARL A. PAYNE, individually, and on behalf of other members of the general public similarly situated, GUARANTY BANK AND TRUST COMPANY, Individually and on behalf of all others similarly situated, KENNETH W. COKER, individually, and on behalf of other members of the general public similarly situated, THE COUNTY OF MENDOCINO, COUNTY OF SAN MATEO, CITY OF RICHMOND, COUNTY OF SAN DIEGO, CITY OF RIVERSIDE, COUNTY OF SACRAMENTO, SAN DIEGO ASSOCIATION OF GOVERNMENTS, JOSEPH AMABILE, LOUIE AMABILE, individually & on behalf of Lue Trading, Inc., NORMAN BYSTER, MICHAEL CAHILL, RICHARD DEOGRACIAS, individually on behalf of RCD Trading, Inc., HEATHER M. EARLE, on behalf of themselves and all others similarly situated, HENRYK MALINOWSKI, on behalf of themselves and all others similarly situated, MARC FEDERIGHI, individually on behalf of MCO Trading, SCOTT FEDERIGHI, individually on behalf of Katsco, Inc., LINDA CARR, on behalf of themselves and all others similarly situated, ERIC FRIEDMAN, on behalf of themselves and all others similarly situated, ROBERT FURLONG, individually on behalf of XCOP, Inc., DAVID GOUGH, COUNTY OF RIVERSIDE, JERRY WEGLARZ, BRIAN HAGGERTY, individually on behalf of BJH Futures, Inc., DAVID KLUSENDORF, NATHAN WEGLARZ, on behalf of plaintiffs and a class, DIRECTORS FINANCIAL GROUP, individually and on behalf of all others similarly situated, RONALD KRUG, CHRISTOPHER LANG, SEIU PENSION PLANS MASTER TRUST, individually and on behalf of all others similarly situated, HIGHLANDER REALTY, LLC, JOHN MONCKTON, PHILIP OLSON, JEFFREY D. BUCKLEY, FEDERAL HOME LOAN MORTGAGE CORPORATION, BRETT PANKAU, DAVID VECCHIONE, individually on behalf of Vecchione & Associates, RANDALL WILLIAMS, JOHN HENDERSON, 303 PROPRIETARY TRADING LLC, MARGERY TELLER, CEMA JOINT VENTURE, NICHOLAS PESA, EDUARDO RESTANI, PRINCIPAL FUNDS, INC., PFI BOND & MORTGAGE SECURITIES FUND, PFI BOND MARKET INDEX FUND, PFI CORE PLUS BOND I FUND, PFI DIVERSIFIED REAL ASSET FUND, PFI EQUITY INCOME FUND, PFI GLOBAL DIVERSIFIED INCOME FUND, PFI GOVERNMENT &HIGH QUALITY BOND FUND, PFI HIGH YIELD FUND, PFI HIGH YIELD FUND I, PFI INCOME FUND, PFI INFLATION PROTECTION FUND, PFI SHORT-TERM INCOME FUND, PFI MONEY MARKET FUND, PFI PREFERRED SECURITIES FUND, PRINCIPAL VARIABLE CONTRACTS FUNDS, INC., PVC ASSET ALLOCATION ACCOUNT, PVC MONEY MARKET ACCOUNT, PVC BALANCED ACCOUNT, PVC BOND & MORTGAGE SECURITIES ACCOUNT, PVC EQUITY INCOME ACCOUNT, PVC GOVERNMENT & HIGH QUALITY BOND ACCOUNT, PVC INCOME ACCOUNT, PVC SHORT-TERM INCOME ACCOUNT, PRINCIPAL FINANCIAL GROUP, INC., PRINCIPAL FINANCIAL SERVICES, INC., PRINCIPAL LIFE INSURANCE COMPANY, PRINCIPAL CAPITAL INTEREST ONLY I, LLC, PRINCIPAL COMMERCIAL FUNDING, LLC, PRINCIPAL COMMERCIAL FUNDING II, Case 17-1569, Document 478, 03/16/2018, 2259166, Page15 of 85 LLC, PRINCIPAL REAL ESTATE INVESTORS, LLC, VITO SPILLONE, BRIAN MCCORMICK, MAXWELL VAN DE VELDE, Individually and on behalf of all others similarly situated, INDEPENDENCE TRADING, INC., INSULATORS AND ASBESTOS WORKERS LOCAL #14, Individually and on behalf of all others similarly situated, COURMONT & WAPNER ASSOCIATES, L.P., on behalf of itself and all others similarly situated, SALIX CAPITAL LTD., FTC CAPITAL GMBH, on behalf of themselves and all others similarly situated, CITY OF NEW BRITAIN FIREFIGHTERS' AND POLICE BENEFIT FUND, DIRECT ACTION PLAINTIFFS, FEDERAL NATIONAL MORTGAGE ASSOCIATION, TRIAXX PRIME CDO 2006-1, LTD., TRIAXX PRIME CDO 2006-2, LTD., TRIAXX PRIME CDO 2007-1, LTD., FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver, FRAN P. GOLDSLEGER, NATIONAL ASBESTOS WORKERS PENSION FUND, PENSION TRUST FOR OPERATING ENGINEERS, HAWAII ANNUITY TRUST FUND FOR OPERATING ENGINEERS, CEMENT MASONS' INTERNATIONAL ASSOCIATION EMPLOYEES' TRUST FUND, individually and on behalf of all others similarly situated, AXIOM INVESTMENT ADVISORS, LLC, AXIOM HFT LLC, AXIOM INVESTMENT ADVISORS HOLDINGS L.P., AXIOM INVESTMENT COMPANY, LLC, AXIOM INVESTMENT COMPANY HOLDINGS L.P., AXIOM FX INVESTMENT FUND, L.P., AXIOM FX INVESTMENT FUND II, L.P., AXIOM FX INVESTMENT 2X FUND, L.P., EPHRAIM F. GILDOR, GILDOR FAMILY ADVISORS L.P., GILDOR FAMILY COMPANY L.P., GILDOR MANAGEMENT, LLC, PRUDENTIAL CORE TAXABLE MONEY MARKET FUND, Plaintiffs, – v. – LLOYDS BANKING GROUP PLC, BANK OF AMERICA CORPORATION, THE ROYAL BANK OF SCOTLAND GROUP PLC, CREDIT SUISSE GROUP AG, DEUTSCHE BANK AG, JPMORGAN CHASE & CO., THE NORINCHUKIN BANK, HBOS PLC, ROYAL BANK OF CANADA, HSBC BANK PLC, COOPERATIEVE RABOBANK U.A., FKA COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., JPMORGAN CHASE BANK, N.A., THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., BANK OF AMERICA, N.A., BARCLAYS BANK PLC, WESTDEUTSCHE IMMOBILIENBANK AG, PORTIGON AG, FKA WESTLB AG, HSBC HOLDINGS PLC, WESTLB AG, SOCIETE GENERALE, COOPERATIEVE CENTRALE RAIFFEISEN - BOERENLEENBANK B.A., CREDIT SUISSE INTERNATIONAL, CREDIT SUISSE (USA), INC., THE ROYAL BANK OF SCOTLAND PLC, CREDIT SUISSE AG, HSBC SECURITIES (USA) INC., HSBC BANK USA, N.A., HSBC FINANCE CORPORATION, BARCLAYS CAPITAL INC., HSBC USA, INC., THE HONG KONG AND SHANGHAI BANKING CORPORATION LTD., RBC CAPITAL MARKETS LLC, BANK OF AMERICA N.A., RABOBANK GROUP, UBS SECURITIES LLC, CITI SWAPCO INC., BBA ENTERPRISES, LTD., BBA LIBOR, LTD., BRITISH BANKERS' ASSOCIATION, MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, FKA BANC OF AMERICA SECURITIES, LLC, CITIGROUP FINANCIAL PRODUCTS, INC., J.P. MORGAN BANK DUBLIN PLC, FKA BEAR STEARNS BANK PLC, UBS LIMITED, CREDIT SUISSE GROUP INTERNATIONAL, UBS AG, Defendants-Appellees, Case 17-1569, Document 478, 03/16/2018, 2259166, Page16 of 85 CREDIT AGRICOLE S.A., SUMITOMO MITSUI BANKING CORPORATION, BNP PARIBAS S.A., RBS CITIZENS, N.A., incorrectly sued as othe Charter One Bank NA, RBS CITIZENS, N.A., CREDIT SUISSE GROUP, NA, CITIZENS BANK OF MASSACHUSETTS, Agent of RBS Citizens Bank, NA, BARCLAYS US FUNDING LLC, DEUTSCHE BANK FINANCIAL LLC, DOES 1 THROUGH 10, SOCIETE GENERALE CORPORATE & INVESTMENT BANKING, NATIONAL ASSOCIATION, STEPHANIE NAGEL, JOHN DOES #1- #5, NATIONAL COLLEGIATE STUDENT LOAN TRUST 2007-1, CHASE BANK USA, N.A., J.P. MORGAN CLEARING CORP., BANK OF AMERICA SECURITIES LLC, CENTRALE RAIFFEISEN-BERENLEENBANK B.A., UBS AG, ROYAL BANK OF SCOTLAND GROUP PLC, BANK OF NOVA SCOTIA, CREDIT SUISSE SECURITIES (USA) LLC, RBS GROUP, LLOYDS BANK PLC, FKA Lloyds Bank plc, CITIZENS BANK N.A., CREDIT SUISSE SECURITIES (USA) LLC, CITIGROUP GLOBAL MARKETS, INC., THE ROYAL BANK OF SCOTLAND PLC, LLOYDS BANK PLC, CITIGROUP FUNDING, INC., SOCIETE GENERALE S.A., BARCLAYS PLC, J.P. MORGAN SECURITIES LLC, FKA J.P. Morgan Securities Inc., DEUTSCHE BANK SECURITIES INCORPORATED, BANC OF AMERICA SECURITIES, LLC, RBS SECURITIES INC., FKA Greenwich Capital Markets, Inc., LLOYDS TSB BANK PLC, ICAP PLC, J.P. MORGAN MARKETS LTD., BANK OF AMERICA HOME LOANS, MERRILL LYNCH CAPITAL SERVICES, INC., CITIGROUP GLOBAL MARKETS LIMITED, MERRILL LYNCH & CO., INC., MERRILL LYNCH INTERNATIONAL BANK, LTD., BEAR STEARNS CAPITAL MARKETS, INC., BARCLAYS CAPITAL (CAYMAN) LIMITED, INSTITUTE OF INTERNATIONAL BANKERS, CLEARING HOUSE ASSOCIATION L.L.C., CITIBANK, N.A., CITIGROUP INC., Defendants. BARRY BARNETT RICHARD W. MITHOFF SUSMAN GODFREY L.L.P. MITHOFF LAW 1000 Louisiana Street One Allen Center Houston, Texas 77002 Penthouse, Suite 3450 (713) 651-9366 500 Dallas Street Houston, Texas 77002 – and – (713) 654-1122 WILLIAM C. CARMODY ARUN S. SUBRAMANIAN Attorneys for Plaintiff-Appellant GENG CHEN City of Houston SUSMAN GODFREY L.L.P. 1301 Avenue of the Americas New York, New York 10019 (212) 336-8330 – and – Case 17-1569, Document 478, 03/16/2018, 2259166, Page17 of 85 DREW HANSEN NANCI E. NISHIMURA SUSMAN GODFREY L.L.P. COTCHETT, PITRE & MCCARTHY, LLP 1201 Third Avenue 840 Malcolm Road, Suite 200 Seattle, Washington 98101 Burlingame, California 94010 (206) 516-3880 (650) 697-6000 – and – – and – MARC M. SELTZER ALEXANDER E. BARNETT SUSMAN GODFREY L.L.P. COTCHETT, PITRE & MCCARTHY, LLP 1901 Avenue of the Stars 40 Worth Street, 10th Floor Los Angeles, California 90067 New York, New York 10013 (310) 789-3100 (212) 201-6820 – and – Attorneys for Plaintiffs-Appellants City of MICHAEL D. HAUSFELD Houston, County of San Mateo, The San HILARY K. SCHERRER Mateo County Joint Powers Financing NATHANIEL C. GIDDINGS Authority, City of Richmond, The HAUSFELD LLP Richmond Joint Powers Financing 1700 K Street, NW Authority, Successor Agency to the Washington, DC 20006 Richmond Community Redevelopment (202) 540-7200 Agency, City of Riverside, The Riverside Public Financing Authority, County of Attorneys for Plaintiffs-Appellants City Mendocino, County of Sacramento, of New Britain, Mayor and City County of San Diego, County of Council of Baltimore, Vistra Energy Sonoma, David E. Sundstrom, in his Corporation, Yale University, and official capacity as Treasurer of the Jennie Stuart Medical Center, Inc. County of Sonoma, San Diego Association of Governments, East Bay KAREN L. MORRIS Municipal Utility District, and The PATRICK F. MORRIS Regents of the University of California R. MICHAEL LINDSEY MORRIS AND MORRIS LLC DAVID E. KOVEL COUNSELORS AT LAW ANDREW M. MCNEELA 4023 Kennett Pike, #254 KIRBY MCINERNEY LLP Wilmington, Delaware 19807 825 Third Avenue (302) 426-0400 New York, New York 10022 – and – (212) 371-6600 DAVID H. WEINSTEIN – and – ROBERT S. KITCHENOFF CHRISTOPHER LOVELL WEINSTEIN KITCHENOFF & ASHER LLC LOVELL STEWART HALEBIAN 100 South Broad Street, Suite 705 JACOBSON LLP Philadelphia, Pennsylvania 19110 61 Broadway, Suite 501 (215) 545-7200 New York, New York 10006 (212) 608-1900 Attorneys for Plaintiffs-Appellants Ellen Gelboim and Linda Zacher Attorneys for Plaintiffs-Appellants Metzler Investment GmbH, Gary Francis, 303030 Trading LLC, Atlantic Trading USA, LLC, FTC Futures Fund PCC Ltd., FTC Futures Fund SICAV, and Nathaniel Haynes Case 17-1569, Document 478, 03/16/2018, 2259166, Page18 of 85 STEIG D. OLSON DAVID C. FREDERICK DANIEL L. BROCKETT ANDREW C. SHEN DANIEL P. CUNNINGHAM KELLOGG, HANSEN, TODD, FIGEL QUINN EMANUEL URQUHART & FREDERICK, P.L.L.C. & SULLIVAN, LLP 1615 M Street, NW, Suite 400 51 Madison Avenue, 22nd Floor Washington, DC 20036 New York, New York 10010 (202) 326-7900 (212) 849-7000 – and – Attorneys for Plaintiff-Appellant National Credit Union Administration Board JEREMY ANDERSEN QUINN EMANUEL URQUHART DANIEL L. BROCKETT & SULLIVAN, LLP STEIG D. OLSON 865 South Figueroa Street, 10th Floor DANIEL P. CUNNINGHAM Los Angeles, California 90017 QUINN EMANUEL URQUHART (213) 443-3000 & SULLIVAN, LLP 51 Madison Avenue, 22nd Floor Attorneys for Plaintiffs-Appellants New York, New York 10010 The City of Philadelphia and the (212) 849-7000 Pennsylvania Intergovernmental – and – Cooperation Authority JEREMY ANDERSEN QUINN EMANUEL URQUHART & SULLIVAN, LLP 865 South Figueroa Street, 10th Floor Los Angeles, California 90017 (213) 443-3000 Attorneys for Plaintiffs-Appellants Prudential Investment Portfolios 2, Darby Financial Products, Capital Ventures International, and Salix Capital US Inc. Case 17-1569, Document 478, 03/16/2018, 2259166, Page19 of 85 MOTION TO FILE UNDER SEAL Plaintiffs-Appellants file this motion (which they request this Court deny) to file under seal certain portions of the Joint Reply Brief for Plaintiffs-Appellants Re- garding Personal Jurisdiction, filed under seal on March 16, 2018. The redacted portions of the brief quote and describe materials that were sealed before the district court in the attached orders, and which Defendants-Appellees designated as "Confi- dential" or "Highly Confidential" under the protective order in the district court. Plaintiffs-Appellants are filing this motion solely to give Defendants-Appellees an opportunity to present their sealing arguments (if any) to this Court. Plaintiffs- Appellants filed a materially identical motion in connection with their opening brief, ECF 393, which this Court referred to the merits panel on February 20, 2018, ECF 459. Plaintiffs-Appellants' reply brief should not be sealed in this Court. "The common law right of public access to judicial documents is firmly rooted in our nation's history." Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119 (2d Cir. 2006) (quoting United States v. Amodeo, 44 F.3d 141, 145 (2d Cir. 1995)). Further, "it is well established that the public and the press have a 'qualified First Amendment right to attend judicial proceedings and to access certain judicial documents.'" Id. (quoting Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 91 (2d Cir. 2004)). 1 Case 17-1569, Document 478, 03/16/2018, 2259166, Page20 of 85 Sealing here cannot be justified in light of either the common law or First Amendment right of access to Court records. Id. at 120 (quoting In re N.Y. Times Co., 828 F.2d 110, 116 (2d Cir. 1987)) ("[D]ocuments may be sealed if specific, on the record findings are made demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest."). Plaintiffs-Appellants file this motion solely to allow Defendants-Appellees to respond and argue why they believe sealing is appropriate. Defendants-Appellees may argue that Plaintiffs-Appellants waived opposi- tion to sealing by moving to seal this material before the district court. That point is irrelevant. Shane Grp., Inc. v. Blue Cross Blue Shield of Mich., 825 F.3d 299, 307 (6th Cir. 2016) ("Nor—as our decision to address the same issue sua sponte in Brown & Williamson illustrates—is an argument against sealing the kind of argument that can be waived. A court's obligation to keep its records open for public inspection is not conditioned on an objection from anybody."); see also Baxter Int'l v. Abbott Labs., 297 F.3d 544, 545 (7th Cir. 2002) (denying a joint motion to seal and stating "[i]nformation transmitted to the court of appeals is presumptively public because the appellate record normally is vital to the case's outcome."). It is also wrong. Plaintiffs-Appellants' reply brief is a new "judicial document" and Plaintiffs- Appellants have never before moved to seal it. Plaintiffs are not seeking to unseal their briefing before the district court or the underlying exhibits in the Confidential 2 Case 17-1569, Document 478, 03/16/2018, 2259166, Page21 of 85 Appendix—Plaintiffs simply oppose sealing the portions of their reply brief before this Court that quote from those exhibits. Plaintiffs-Appellants have notified Defendants-Appellees of their intent to file this motion. Defendants-Appellees support the motion to seal and intend to file a response to the motion. Plaintiffs-Appellants respectfully request that the Court deny this motion. 3 Case 17-1569, Document 478, 03/16/2018, 2259166, Page22 of 85 Dated: March 16, 2018 Respectfully submitted, By: /s/ Thomas C. Goldstein By: /s/ Steven E. Fineman THOMAS C. GOLDSTEIN STEVEN E. FINEMAN ERIC F. CITRON MICHAEL J. MIARMI CHARLES H. DAVIS LIEFF CABRASER HEIMANN GOLDSTEIN & RUSSELL, P.C. & BERNSTEIN, LLP 7475 Wisconsin Avenue, Suite 850 250 Hudson Street, 8th Floor Bethesda, Maryland 20814 New York, New York 10013 (202) 362-0636 (212) 355-9500 – and – Attorneys for the Schwab Plaintiffs- BRENDAN P. GLACKIN Appellants and Plaintiffs-Appellants Ellen L IEFF CABRASER HEIMANN Gelboim and Linda Zacher & BERNSTEIN, LLP 275 Battery Street, 29th Floor San Francisco, California 94111 By: /s/ Barry Barnett (415) 956-1000 BARRY BARNETT SUSMAN GODFREY L.L.P. Attorneys for the Schwab Plaintiffs- 1000 Louisiana Street Appellants and Plaintiff-Appellant Bay Houston, Texas 77002 Area Toll Authority (713) 651-9366 – and – By: /s/ Richard W. Mithoff WILLIAM C. CARMODY RICHARD W. MITHOFF ARUN S. SUBRAMANIAN MITHOFF LAW GENG CHEN One Allen Center SUSMAN GODFREY L.L.P. Penthouse, Suite 3450 1301 Avenue of the Americas 500 Dallas Street New York, New York 10019 Houston, Texas 77002 (212) 336-8330 (713) 654-1122 – and – Attorneys for Plaintiff-Appellant DREW HANSEN City of Houston SUSMAN GODFREY L.L.P. 1201 Third Avenue Seattle, Washington 98101 By: /s/ Nanci E. Nishimura (206) 516-3880 NANCI E. NISHIMURA – and – COTCHETT, PITRE & MCCARTHY, LLP 840 Malcolm Road, Suite 200 4 Case 17-1569, Document 478, 03/16/2018, 2259166, Page23 of 85 MARC M. SELTZER Burlingame, California 94010 SUSMAN GODFREY L.L.P. (650) 697-6000 1901 Avenue of the Stars – and – Los Angeles, California 90067 (310) 789-3100 ALEXANDER E. BARNETT COTCHETT, PITRE & MCCARTHY, LLP – and – 40 Worth Street, 10th Floor MICHAEL D. HAUSFELD New York, New York 10013 HILARY K. SCHERRER (212) 201-6820 NATHANIEL C. GIDDINGS HAUSFELD LLP Attorneys for Plaintiffs-Appellants City 1700 K Street, NW of Houston, County of San Mateo, The Washington, DC 20006 San Mateo County Joint Powers (202) 540-7200 Financing Authority, City of Richmond, The Richmond Joint Powers Financing Attorneys for Plaintiffs-Appellants Authority, Successor Agency to the City of New Britain, Mayor and Richmond Community Redevelopment City Council of Baltimore, Vistra Agency, City of Riverside, The Riverside Energy Corporation, Yale Public Financing Authority, County of University, and Jennie Stuart Mendocino, County of Sacramento, Medical Center, Inc. County of San Diego, County of Sonoma, David E. Sundstrom, in his official capacity as Treasurer of the County of By: /s/ Karen L. Morris Sonoma, San Diego Association of KAREN L. MORRIS Governments, East Bay Municipal Utility PATRICK F. MORRIS District, and The Regents of the R. MICHAEL LINDSEY University of California MORRIS AND MORRIS LLC COUNSELORS AT LAW 4023 Kennett Pike, #254 By: /s/ David E. Kovel Wilmington, Delaware 19807 DAVID E. KOVEL (302) 426-0400 ANDREW M. MCNEELA – and – KIRBY MCINERNEY LLP 825 Third Avenue DAVID H. WEINSTEIN New York, New York 10022 ROBERT S. KITCHENOFF (212) 371-6600 WEINSTEIN KITCHENOFF & ASHER LLC 100 South Broad Street, Suite 705 – and – Philadelphia, Pennsylvania 19110 CHRISTOPHER LOVELL (215) 545-7200 LOVELL STEWART HALEBIAN 5 Case 17-1569, Document 478, 03/16/2018, 2259166, Page24 of 85 Attorneys for Plaintiffs-Appellants JACOBSON LLP Ellen Gelboim and Linda Zacher 61 Broadway, Suite 501 New York, New York 10006 (212) 608-1900 By: /s/ Steig D. Olson STEIG D. OLSON Attorneys for Plaintiffs-Appellants DANIEL L. BROCKETT Metzler Investment GmbH, Gary DANIEL P. CUNNINGHAM Francis, 303030 Trading LLC, Atlantic QUINN EMANUEL URQUHART Trading USA, LLC, FTC Futures Fund & SULLIVAN, LLP PCC Ltd., FTC Futures Fund SICAV, 51 Madison Avenue, 22nd Floor and Nathaniel Haynes New York, New York 10010 (212) 849-7000 – and – JEREMY ANDERSEN By: /s/ David C. Frederick QUINN EMANUEL URQUHART DAVID C. FREDERICK & SULLIVAN, LLP ANDREW C. SHEN 865 South Figueroa Street, 10th Floor KELLOGG, HANSEN, TODD, FIGEL Los Angeles, California 90017 & FREDERICK, P.L.L.C. (213) 443-3000 1615 M Street, NW, Suite 400 Washington, DC 20036 Attorneys for Plaintiffs-Appellants (202) 326-7900 The City of Philadelphia and the Pennsylvania Intergovernmental Attorneys for Plaintiff-Appellant Cooperation Authority National Credit Union Administration Board By: /s/ Daniel L. Brockett DANIEL L. BROCKETT STEIG D. OLSON DANIEL P. CUNNINGHAM QUINN EMANUEL URQUHART & SULLIVAN, LLP 51 Madison Avenue, 22nd Floor New York, New York 10010 (212) 849-7000 – and – 6 Case 17-1569, Document 478, 03/16/2018, 2259166, Page25 of 85 JEREMY ANDERSEN QUINN EMANUEL URQUHART & SULLIVAN, LLP 865 South Figueroa Street, 10th Floor Los Angeles, California 90017 (213) 443-3000 Attorneys for Plaintiffs-Appellants Prudential Investment Portfolios 2, Darby Financial Products, Capital Ventures International, and Salix Capital US Inc. 7 Case 17-1569, Document 478, 03/16/2018, 2259166, Page26 of 85 CERTIFICATE OF COMPLIANCE I hereby certify that: 1. This motion complies with the type-volume limitation of Federal Rule of Appellate Procedure 27(d)(2)(A) because it contains 529 words as counted by Microsoft Word 2016, the word-processing program used to prepare the motion; and 2. The motion complies with the typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) and the type-style requirements of Federal Rule of Ap- pellate Procedure 32(a)(6), as the text appears in 14-point Times New Roman font, a proportionally spaced typeface. Dated: March 16, 2018 /s/ Eric Citron Eric Citron Case 17-1569, Document 478, 03/16/2018, 2259166, Page27 of 85 CERTIFICATE OF SERVICE I, Eric Citron, hereby certify that on March 16, 2018, I caused a copy of the foregoing to be served on all parties through the Court's CM/ECF system, which will send a notice of electronic filing to all counsel of record. /s/ Eric Citron Eric Citron Case 17-1569, Document 478, 03/16/2018, 2259166, Page28 of 85 SEALING ORDERS ""\\ ...,, '!.·\, Case Case 1:11-md-02262-NRB .~ 03/16/2018, ~l~ ·- 17-1569, DocumentDocument 478, \',,1405 Filed 2259166, 05/12/16 Page29 Pageof 185of 35 l\ . ..,_.,v ------ . .:BUf.z!At,~~ . USDC SDN\ UNITED STATES DISTRICT COURTif DQCUMENT SOUTHERN DISTRICT OF NEW YOR.ff.ELECTRONIC.-\ I.LY FILED DOC#:_ _ _ _ _ __ IN RE LIBOR-BASED FINANCIAL MDL No. 226:ll DATE FILED: 05/12/2016 INSTRUMENTS ANTITRUST LITIGATION ECF Case Master File No. 1:11-md-2262- NRB THIS DOCUMENT RELATES TO: ALL ACTIONS AMENDED STIPULATION AND PROTECTIVE ORDER IT IS HEREBY STIPULATED AND AGREED, pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, by and among the parties hereto, through their undersigned counsel, that the following provisions of this Amended Stipulation and Order (the "Stipulation and Order") govern disclosure and use by the parties of all documents, including but not limited to electronically stored information, testimony, exhibits, interrogatory answers, responses to requests to admit, and any other materials and information produced or provided in any of the actions that are part of the above-referenced multidistrict litigation, MDL No. 2262 (individually. an "Action," or collectively, the "Actions"). 1. DEFINITIONS. 1.1 Party: Any named, non-dismissed party to an Action whose counsel has signed this Stipulation and Order below. For the avoidance of doubt, any defendant that has been dismissed from one or more of the Actions is a non-party in those Actions, as that term is used in this Stipulation and Order, rather than a Party. The term "Party" includes all of a Party's officers, directors, employees, consultants, retained experts, and outside counsel (and their support staff). 1.2 Discovery Material(s): All information of any kind provided in the course "- ~· ..,, Case Case 1:11-md-02262-NRB " 478, . 17-1569, DocumentDocument ...... 03/16/2018,,, •" 1405 <" Filed 2259166, 05/12/16 Page30 Pageof 285of 35 ....... ~ of discovery in these Actions, including without limitation documents, electronic files, trade data, written discovery responses, deposition testimony, and deposition exhibits. Information copied or extracted from Discovery Material, as well as all copies, excerpts, summaries, or compilations thereof, shall constitute Discovery Material. Any information obtained through means outside the court's discovery processes, such as through independent investigation, shall not constitute Discovery Material, provided however that this does not mean that any such material is immune from discovery. Any person subject to this Stipulation and Order who receives from any other person any Discovery Material shall not disclose said Discovery Material to anyone else except as expressly permitted hereunder. 1.3 "Confidential" Information or Items: Information (regardless of how generated, stored, or maintained), testimony, or tangible things obtained during discovery in these Actions that the Disclosing Person reasonably and in good faith believes contains or would disclose non-public, confidential, personal, proprietary, financial, customer, client or commercially sensitive information, confidential trade secrets or non-public research that requires the protections provided in this Stipulation and Order, including, but not limited to, any information that constitutes confidential information under the Federal Rule of Civil Procedure 26(c) or applicable laws or regulations. Confidential Information includes information (including Personal Data as defined herein) of which applicable law - foreign or domestic - requires the equivalent of "Confidential" treatment as set forth in this Stipulation and Order. Nothing in this Order shall be used to imply that any law permits, or does not permit, the production of certain data, regardless of whether such data is designated as "Confidential." 1.4 "Highly Confidential" Information or Items: "Confidential" Information or Items that the Disclosing Person reasonably and in good faith believes contains (a) material 2 n ~•• Ill. Case Case 1:11-md-02262-NRB 17-1569, DocumentDocument 478, ~ !"' 03/16/2018, .: . 1405 Filed 2259166, 05/12/16 Page31 Pageof 385of 35 --,~ \i \. regarding trading and investment strategies, pricing and cost information, customer lists, business strategy, trade secrets and other commercial or financial information the disclosure of which to another Party or non-party would create a substantial risk of causing the Disclosing Person to suffer monetary or non-monetary injury or competitive or commercial disadvantage; or (b) Personal Data, as defined herein, including, but not limited to, social security numbers; home telephone numbers and addresses; tax returns; medical, personal credit, or banking information; or personal financial information. Highly Confidential information also includes information as to which applicable law- foreign or domestic- requires the equivalent of "Highly Confidential" treatment as set forth in this Stipulation. Examples of such laws potentially include but are not limited to: the English law of confidence (created by the courts rather than by statute, and including its equivalents in other common law legal systems); French Bank Secrecy Statute (Article L.511-33 of the French Monetary and Financial Code); the French Personal Data Protection Law (Law no. 78-17 dated 6 January 1978); the Japanese law of customer confidentiality (also created by the courts); Section 4 7 (and related provisions) of the Banking Act (Cap. 19) of Singapore; and the Swiss Federal Act on Banks and Savings Banks 1934, in each case as amended. Each defendant will in good faith attempt to identify, in a manner to be mutually agreed upon by the Parties, the foreign laws of which it is aware that may apply to the "Highly Confidential" information or items produced by it within seven days after such documents or items are first produced; provided, however, the Parties acknowledge that additional foreign laws applicable to the productions made by a Party or non-party may be implicated after documents or items have been first produced. If the Receiving Party objects to the designation of a particular document on the grounds that it does not qualify for "Highly Confidential" treatment under foreign law, the Disclosing Person will identify in writing the 3 Jll •:." ..). Case Case 1:11-md-02262-NRB 17-1569, DocumentDocument 478,..tit'' 03/16/2018, ·•"' 1405,.._, Filed 2259166, 05/12/16 Page32 Pageof 485of 35 Jt p basis in foreign law for its designation. If there is a dispute as to the designation ofthe document, the Parties shall meet and confer in an effort to resolve any disagreement, and if they cannot, the Receiving Party may apply to the Court on notice, consistent with the governing local rules and individual practices of the assigned judge, on the propriety or determination of the designation. Nothing in this Order shall be used to imply that any law permits, or does not permit, the production of certain data, regardless of whether such data is designated as "Highly Confidential." 1.5 Disclosing Person: A Party or a non-party that produces Discovery Material in an Action. 1.6 Receiving Party: A Party that receives Discovery Material from a Disclosing Person in an Action. 1.7 Personal Data: Any information that a Party or Disclosing Person (whether or not a Party) believes in good faith to be subject to federal, state or foreign data protection laws or other privacy obligations. Personal Data constitutes material requiring special protection. Examples of such data protection laws potentially include but are not limited to: The Health Insurance Portability and Accountability Act and the regulations thereunder, 45 CFR Part 160 and Subparts A and E of Part 164 (medical information); laws implementing European Union Data Protection Directive 95/46/EC on Data Protection (including but not limited to the Data Protection Act 1998 (c. 29) (United Kingdom personal information)); French Bank Secrecy Statute (Article L.511-33 of the French Monetary and Financial Code); the French Personal Data Protection Law (Law no. 78-17 dated 6 January 1978); the Japanese Act on the Protection of Personal Information; the Personal Data Protection Act 2012 of Singapore; and the Federal Data Protection Act of 1992 (Swiss personal information). Nothing in this section shall be used to 4 .,._,) Case Case 1:11-md-02262-NRB 478,""·' 03/16/2018, 17-1569, DocumentDocument ~·t" 1405 ~ Filed 2259166, 05/12/16 Page33 Pageof 585of 35 "' ~) imply that any law permits, or does not permit, the production of certain data, regardless of whether such data is designated as "Personal Data." 1.8 Protected Material: Any Discovery Material that is designated as "Confidential" or "Highly Confidential." 1.9 Outside Counsel: Attorneys, paralegals, and other law firm personnel, employees and contractors who are not employees of a Party but who are retained to represent or advise a Party in an Action. 1.10 In-House Counsel: Attorneys, paralegals, and other legal department personnel who are employees of a Party, to whom disclosure of Discovery Material is reasonably necessary for this litigation. 1.11 Counsel (without qualifier): Outside Counsel and In-House Counsel (as well as their support staff). 1.12 Principal: An owner, officer, or executive of any Party whose identity as an owner, officer, or executive has been disclosed to all other Parties. 1.13 Expert: A person who is not an owner, director, officer, or employee of a Party, who has specialized knowledge or experience in a matter pertinent to this litigation, who has been retained by a Party or its Counsel to serve as an expert witness or as a consultant in the prosecution or defense of an Action, including his or her employees and support personnel. This definition includes, without limitation, professional jury or trial consultants retained in connection with an Action. 1.14 Professional Vendors: Persons or entities that provide litigation support services (e.g., photocopying; videotaping; translating; preparing exhibits or demonstrations; organizing, storing, or retrieving data in any form or medium) and their employees and 5 +') Case Case 1:11-md-02262-NRB 17-1569, DocumentDocument 478, 03/16/2018, 1405 Filed 2259166, ~,.. 05/12/16 Page34 ~ Pageof 685of 35 " .v subcontractors. 1.15 Defendants' Liaison Counsel: For the purposes of this Stipulation and Order, Defendants' Liaison Counsel shall be Davis Polk & Wardwell LLP. 1.16 Plaintiffs' Liaison Counsel: For the purposes of this Stipulation and Order, Plaintiffs' Liaison Counsel shall be Susman Godfrey L.L.P. 1.17 Liaison Counsel: Defendants' Liaison Counsel together with Plaintiffs' Liaison Counsel. 2. LIMITATION ON USE OF DISCOVERY MATERIAL. 2.1 General Limitations on Use of Discovery Material. All Discovery Material produced or disclosed in connection with these Actions shall be used solely in those Actions that have been subject to a motion to dismiss pursuant to Rule 12 of the Federal Rules of Civil Procedure upon which the Court has ruled or in which Defendants have answered. The Parties disagree on the limitation on the use of Discovery Materials set out in the preceding sentence and the Plaintiffs reserve their rights to seek relief from the Court from it, provided however, all Parties shall comply with the provisions of this paragraph until an order of the Court relieves them of its requirements. 2.2 Subject to the limitations set forth in section 2.3, any Party receiving Discovery Material produced by a non-party in any Action shall ensure that all other Parties receive copies of such Discovery Material within ten (1 0) business days of the Party's receipt of such Discovery Material, or in the case of voluminous material or other exceptional circumstances, the Party receiving such Discovery Material shall notify Liaison Counsel of its receipt of such Discovery Material within five (5) business days, and shall provide copies of the Discovery Material to all other Parties as soon as practicable. All Discovery Material shall only be used for the 6 ., ~ Case Case 1:11-md-02262-NRB 17-1569, DocumentDocument 478, 03/16/2018, 1405 Filed 'il't 2259166, 05/12/16,.~ Page35 Page,.- of 785of 35 "',l prosecution or the defense of the Actions (including any attempted settlement thereof or appeal therefrom), or the enforcement of insurance rights with respect to these actions, and for no other purpose whatsoever, including use in other legal actions, present or future. 2.3 Limitations to Particular Actions. 2.3.1. Limits on Own Productions. Notwithstanding anything else in this Stipulation and Order, a Disclosing Person may designate (via written notice to Liaison Counsel) any Discovery Material that it produces as produced only in connection with one or more particular Actions if it believes in good faith that the Discovery Material is not properly produced more broadly, in which case the Discovery Material shall not be disclosed or used in any other Actions. Any Party may challenge such designation according to the provisions of section 9. 2.3.2. Limits on Disclosure of Received Productions. Notwithstanding anything else in this Stipulation and Order, any Receiving Party may assert that the disclosure of Discovery Material produced to it be limited only to Parties in one or more particular Actions, if it believes in good faith that such Discovery Material is not properly disclosed more broadly. Such assertion shall be in writing to Liaison Counsel, shall identify the Disclosing Person, and shall specify the particular Action or Actions to which the asserting Party believes that the disclosure should be limited. Discovery Material subject to such an assertion shall not be disclosed or used in any other Actions beyond those specified by the asserting party. Any Party may challenge such assertion according to the provisions of section 9. Plaintiffs reserve their rights to seek relief from the Court from the requirements of this paragraph. 3. DESIGNATING MATERIAL. Any Disclosing Person may, subject to the provisions of this Stipulation and Order, designate Discovery Material as ''CONFIDENTIAL" 7 .. ~ Case Case 1:11-md-02262-NRB 17-1569, DocumentDocument 478, 03/16/2018, 1405 !'J..Filed 2259166, ":'05/12/16 Page36 Pageof 885of 35 4' •• or "HIGHLY CONFIDENTIAL." A Disclosing Person shall apply a confidentiality designation only when the party has a reasonable, good faith basis that the information so designated constitutes "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL" material. In order to expedite production of voluminous materials that have previously been produced to a regulator or to another party in litigation, a Disclosing Person may, at its sole option, but is not required to, produce materials without a detailed further review. In so doing, the Disclosing Person may designate those collections of documents, that by their nature contain confidential or highly confidential material, as ''CONFIDENTIAL" or ''HIGHLY CONFIDENTIAL" notwithstanding that some of the documents within the,9ollection may not qualify for such designation. Notwithstanding the foregoing, the Receiving Party may, pursuant to the procedures set forth in section 9, challenge the designation of one or more particular documents on the grounds that it or they does not or do not qualify for protection, or does not or do not qualify for the level of protection asserted. The protections conferred by this Stipulation and Order cover not only the protected information itself, but also any information copied or extracted therefrom, as well as copies, excerpts, summaries, or compilations thereof, plus testimony, conversations, or presentations by Parties or Counsel to or in court or in other settings that might disclose Protected Material to persons not authorized to receive such material. Where the designation of "Confidential" or "Highly Confidential" is based on the presence of Personal Data, the Disclosing Person may designate the material as "PERSONAL DATA - CONFIDENTIAL" or "PERSONAL DATA - HIGHLY CONFIDENTIAL," respectively. 3.1 Manner and Timing of Designations: Except as otherwise provided in this Stipulation and Order or as otherwise stipulated or ordered, Discovery Material must be 8 4,_, \ Case Case 1:11-md-02262-NRB 17-1569, DocumentDocument 478, 03/16/2018, 1405 Filed ... 2259166, 05/12/16 l."' Page37 Pageof 985of 35 '.t, .. designated for protection under this Stipulation and Order by clearly designating the material before it is disclosed or produced. 3.2 The designation of materials as either "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL" shall be made as follows: 3.2.1. For ESI, whenever possible, by either (I) imprinting "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL" on the face of each page of a document so designated. If imprinting on the face of the document is not possible, by (I) affixing a stamp with "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL" on the medium on which the electronic data is stored when copies are delivered to a Receiving Party; and (2) designating the production as "CONFfDENTIAL" or "HIGHLY CONFIDENTIAL" in the transmittal cover letter. 3.2.2. For produced documents, by imprinting the words "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL" on the face of each page of a document so designated or in a similarly conspicuous location for non-document materials. 3.2.3. For written discovery responses, by imprinting the words "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL" next to or above any response to a discovery request or on each page of a response. 3.2.4. For depositions, by indicating in the record at the deposition which portions of the transcript and/or responses shall be treated as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL." Alternatively, within thirty (30) days after receipt of the .transcript or recording of such deposition or other pretrial or trial proceeding, the offering or sponsoring Party may designate such transcript or recording or any portion or portions thereof as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL" by notifying Liaison Counsel, in writing, of the specific pages and lines of the transcript or recording that should be treated as Confidential 9 .. ~ CaseCase 1:11-md-02262-NRB 17-1569, Document Document 478, 03/16/2018,,., 1405) Filed 2259166, 05/12/16 Page38 Pageof10 85of 35 ~t ",. Discovery Material or Highly Confidential Discovery Material. All transcripts or recordings of depositions shall be treated as "HIGHLY CONFIDENTIAL" for thirty (30) days after receipt of the transcript or recording or until written notice of a designation is received, whichever occurs first. 3.2.5. For all other Discovery Material, by placing or affixing on each page of such material (in such manner as will not interfere with the legibility thereof) a "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL" designation. 3.2.6. The same procedures as set forth in this section shall apply to the designation of material as "PERSONAL DATA - CONFIDENTIAL" and "PERSONAL DATA -HIGHLY CONFIDENTIAL." 3.3 Upward Designation of Information or Items Produced by Other Parties or Non-Parties: Subject to the standards of section 3, a Party may upward designate (i.e., change any Discovery Material produced without a designation to a designation of "Confidential" or "Highly Confidential" or designate any Discovery Material produced as ''Confidential" to a designation of "Highly Confidential") any Discovery Material produced by another party or non- party, provided that said Discovery Material contains the upward designating Party's own trade secrets or other confidential research, development, financial, personal, or commercially sensitive information, or otherwise is entitled to protective treatment under Federal Rule of Civil Procedure 26(c) or other law, foreign or domestic. 3.3.1. Upward designation shall be accomplished by providing written notice to Liaison Counsel and the relevant Disclosing Person identifying (by Bates number or other individually identifiable information) the Discovery Material to be re-designated within thirty (30) days from the discovery by the Party that these Discovery Materials should be upward 10,T \ CaseCase 1:11-md-02262-NRB 17-1569, Document Document 478, 03/16/2018, " 1405 ' Filed 2259166, 05/12/16 Page39 Pageof11 85of 35 J \" .. designated. Failure to upward designate within thirty (30) days, alone, will not prevent a Party from obtaining the agreement of the Disclosing Person to upward designate certain Discovery Material or from moving the Court for such relief. Any Party may object to the upward designation of Discovery Material pursuant to the procedures set forth in section 9 regarding challenging designations. 3.3.2. In addition, it is possible that a Party or non-party may conclude that certain Personal Data should be given alternative or additional protections beyond those afforded by this Stipulation and Order, in which event the relevant Parties and/or non-parties shall meet and confer in good faith in order to try to arrive at a mutually agreeable solution for the treatment of such Personal Data, and if unsuccessful, shall present the issue to the Court for resolution. However, nothing in this section shall prevent any Discovery Material that has already been produced from being shown to a deponent at his or her deposition consistent with the terms of this Stipulation and Order unless a request for alternative or additional protections for that specific Discovery Material has been made in writing at least fifteen (15) days prior to the date of the deposition. Nothing in this section shall be used to imply that any particular law applies or does not apply, or that any applicable law would or would not permit the production of certain data. 3.3.3. If it comes to a Party's attention that any Discovery Material that it designated for protection does not qualify for protection at all or does not qualify for the level of protection initially asserted, that Party must promptly notify Liaison Counsel that it is withdrawing the mistaken designation. 4. DISCLOSURE OF DISCOVERY MATERIAL PROTECTED BY THE ATTORNEY-CLIENT PRIVILEGE, WORK PRODUCT DOCTRINE OR FOREIGN LAW. II. '\ CaseCase 1:11-md-02262-NRB 17-1569, Document Document,, 1405 Filed 478, 03/16/2018, 2259166, 05/12/16 Page40 Pageof12 85of 35 .T -' 4.1 This Stipulation and Order is without prejudice to any Disclosing Person's right to assert that any Discovery Material is subject to any applicable claim of privilege or protection, including, but not limited to, the attorney-client privilege and the work product doctrine, and is without prejudice to any Party's right to contest such a claim of privilege or protection. 4.2 Consistent with Federal Rule of Evidence 502(d), if a Party or non-party notifies any other Party that it disclosed Discovery Material that is (a) protected from disclosure under the attorney-client privilege, the work product doctrine, or any other applicable privilege or immunity ("Privileged Material") or (b) is protected under foreign data protection, statutory, or bank secrecy laws ("Foreign Law Protected Material") and requests that the Discovery Material be returned, redacted, destroyed, or treated pursuant to 4.2.1, the disclosure shall not by itself be deemed a waiver in whole or in part of the applicable privilege or protection, either as to the specific material or information disclosed or as to any of the material or information relating thereto or on the same or related subject matter. 4.2.1. In addition, it is possible that a Party or non-party may conclude that certain Foreign Law Protected Material, whether disclosed or undisclosed, should be given alternative or additional protections beyond those afforded by this Stipulation and Order, in which event the Parties and/or non-parties shall meet and confer in good faith in order to try to arrive at a mutually agreeable solution for the treatment of such Foreign Law Protected Material, and if unsuccessful, shall present the issue to the Court for resolution. 4.2.2. If a Party or non-party withholds Discov:ery Material from production on the ground that it is Foreign Law Protected Material, that Party or non-party shall identify, in writing, that it is withholding Foreign Law Material from production, including the 12 • l CaseCase 1:11-md-02262-NRB 17-1569, Document Document 478, 03/16/2018, ·• 1405 Filed 2259166, 05/12/16 Page41 Pageof13 85of 35 J" "' ... ~ approximate number of documents being withheld and the basis of the assertion (including the specific foreign law provision relied upon). The Parties and/or non-parties shall thereafter meet and confer in good faith in order to try to arrive at a mutually agreeable solution for the treatment of such Foreign Law Protected Material, and if unsuccessful, shall present the issue to the Court for resolution. 4.2.3. Nothing in this Stipulation and Protective Order shall be used to imply that any particular law applies or does not apply, or that any applicable law would or would not permit the production of certain data. The Parties disagree on whether Foreign Law Protected Material should be subject to the provisions of this paragraph and reserve their rights to seek relief from the Court from it, provided however, all Parties shall comply with the provisions of this Stipulation and Protective Order until an order of the Court relieves them of its requirements. 4.3 If a Disclosing Person believes that Privileged Material or Foreign Law Protected Material was inadvertently produced, that Disclosing Person shall notify in writing any Party to which it produced the material of the claim of privilege or protection and the basis for such claim to the extent required by Federal Rule of Civil Procedure 26 (a "Privileged Material Notice") and SONY Local Rules or, in the case of Foreign Law Protected Material, to the extent reasonably necessary to set forth the basis of the assertion (including the specific foreign law provisions being relied upon) (a "Foreign Law Protected Material Notice"). Plaintiffs reserve their rights to seek relief from the Court from the requirements of this paragraph. 4.3.1. Subject to the provisions below in this paragraph, within five (5) business days of receipt of a Privileged Material Notice, any Party to which the Privileged Material was produced shall provide a certification of Counsel that all such disclosed Discovery 13,. 1 CaseCase 1:11-md-02262-NRB 17-1569, Document Document 478, 03/16/2018, 1405 Filed 2259166, 05/12/16 Page42 Pageof14 85of 35 ·"' " .... Material (and any copies thereof) has been sequestered (as provided below), returned, or destroyed, and shall not use such items for. any purpose until further order of the Court. The obligation to destroy Privileged Material does not apply to material stored in a manner that makes it unreasonably difficult to destroy, in particular material that is (i) stored on backup storage media made in accordance with regular data backup procedures for disaster recovery purposes or (ii) located in the email archive system or archived electronic files of departed employees, but such retained material shall be treated in accordance with the Stipulation and Order. Notwithstanding the foregoing, a Receiving Party may sequester a copy of relevant Privileged Material, in a secure medium that is segregated from any general document depositories that such Rec~iving Party has established, for purposes of evaluating the claim of privilege and may promptly present the information to the court under seal for a determination of the claim. 4.3.2. Subject to the provisions below in this paragraph, within five (5) business days of receipt of a Foreign Law Protected Material Notice, any Party to which Foreign Law Protected Material was produced shall (unless the Disclosing Person and Receiving Party otherwise agree) provide a certification of Counsel that all such disclosed Discovery Material (and any copies thereof) have been returned or destroyed. The obligation to destroy Foreign Law Protected Material does not apply to material stored in a manner that makes it unreasonably difficult to destroy, in particular material that is (i) stored on backup storage media made in accordance with regular data backup procedures for disaster recovery purposes or (ii) located in the email archive system or archived electronic files of departed employees, but such retained material shall be treated in accordance with the Stipulation and Order. Notwithstanding the foregoing, the Receiving Party may sequester a copy of relevant Foreign Law Protected Material, 14 ' ''1 CaseCase 1:11-md-02262-NRB 17-1569, Document Document 478, 03/16/2018, 1405 Filed 2259166, 05/12/16 Page43 Pageof15 85of 35 ...\,. .a.~ in a secure medium that is segregated from any general document depositories that Receiving Party has established, for purposes of evaluating the claim of privilege and may promptly present the information to the court under seal for a determination of the claim. 4.3.3. If the Receiving Party determines that it has received Discovery Material that constitutes Privileged Material or Foreign Law Protected Material, the Receiving Party shall destroy or return all copies of such Discovery Material to the Disclosing Person within ten (1 0) business days of the discovery of such information and after Disclosing Person has produced a redacted version of such Discovery Material, shall provide a certification of Counsel that all such disclosed Discovery Material (and any copies thereof) has been returned or destroyed, and shall not use such items for any purpose until further order of the Court. When appropriate, the Disclosing Person will provide a redacted version of such Discovery Material to the Receiving Party. 4.3.4. Should the Receiving Party to which any Privileged Material or Foreign Law Protected Material was produced seek to challenge the designation of such material as privileged or protected, it shall notify the Disclosing Person in writing and shall not use or disclose the material until the claim is resolved. Following the receipt of any objection, the objecting Party and the Disclosing Person shall meet and confer in an effort to resolve any disagreement regarding the Disclosing Person's designation of the material as privileged or protected. If the parties cannot resolve their disagreement, the objecting Party shall promptly present the issue to the Court for a determination ofthe Disclosing Person's claim of privilege or protection. The production of Privileged Material or Foreign Law Protected Material, whether inadvertent or otherwise, shall not itself serve as the basis of the motion. While any such motion is pending, the Discovery Material subject to that motion will be treated as privileged or 15 ~ CaseCase 1:11-md-02262-NRB 17-1569, Document Document. 478, 03/16/2018, 1405 Filed 2259166, 05/12/16) Page44 Pageof16 85of 35 ... • J. protected until the Court rules. If the Court determines that such material is privileged or protected, the Receiving Party shall (to the extent it has not already done so), return or destroy such disclosed Privileged Material or Foreign Law Protected Material and all copies thereof within (5) five business days of the Court's ruling. The Parties disagree on whether Foreign Law Protected Material should be subject to the provisions of this paragraph and reserve their rights to seek relief from the Court from it, provided however, all Parties shall comply with the provisions of this paragraph until an order of the Court relieves them of its requirements. 5. INADVERTENT FAILURE TO IDENTIFY MATERIALS AS "CONFIDENTIAL" OR "HIGHLY CONFIDENTIAL". Any Disclosing Person that inadvertently fails to identify Discovery Material as "Confidential" or "Highly Confidential" shall have fifteen (15) days from the discovery of its oversight to correct its failure. Such failure shall be corrected by providing the Receiving Party written notice of the error and substituted copies of the inadvertently produced Discovery Material. The Receiving Party shall thereafter treat the information as Confidential or Highly Confidential Discovery Material. To the extent such information may have been disclosed to anyone not authorized to receive Confidential or Highly Confidential Discovery Material under the terms of this Stipulation and Order, the Receiving Party shall make reasonable efforts to retrieve the Discovery Material promptly and to avoid any further disclosure. Should any Party seek to designate (or "upward designate") for the first time as "Confidential" or "Highly Confidential" any Discovery Material less than fifteen (15) days before the date of a duly-noticed deposition of a deponent, then, notwithstanding any provision herein to the contrary, such Discovery Material may be shown to that deponent at his or her deposition provided that (a) the deponent is a current employee of the Disclosing Person (or, where relevant, of the "upward designating" Party); or 16 "' CaseCase 1:11-md-02262-NRB 17-1569, Document Document 478, 03/16/2018, ' 1405 Filed 2259166, 05/12/16 .} Page45 Pageof17 85of 35 •• • J (b) the requirements of section 6.1. 9(2) have been satisfied. 6. ACCESS TO AND USE OF PROTECTED MATERIAL. Disclosure of Confidential Information: Unless otherwise ordered by the Court or permitted in writing by the Disclosing Person, a Receiving Party may disclose any information or item designated as "Confidential" only to the following persons: 6.1.1. The Court and court personne 1 in these Actions and any appellate court in these Actions. 6.1.2. The Receiving Party's Outside Counsel to whom it is reasonably necessary to disclose the information for an Action and their legal, clerical, or support staff, including temporary or contract staff. 6.1.3. The Receiving Party's In-House Counsel to whom it is reasonably necessary to disclose the information for an Action. 6.1.4. The Parties' insurers and insurers' counsel participating in matters relating to an Action and their legal, clerical, or support staff, including temporary or contract staff. 6.1.5. The Receiving Party's Principals. 6.1.6. Professional court reporters, their staffs, · video operators transcribing depositions or testimony in an Action, and Professional Vendors to whom disclosure is reasonably necessary for an Action. 6.1.7. Persons who Counsel have a good faith basis to believe are authors or recipients (including those referenced as "cc" or "bee" recipients on a document (collectively, "cc' s")) of the Confidential Discovery Material or who had access to or the authority to access or obtain such Confidential Discovery Material in the normal or authorized course of business 17 ~ CaseCase 1:11-md-02262-NRB 17-1569, Document ..... 03/16/2018, Document 478, 1405 Filed '}2259166, 05/12/16 Page46 Pageof18 85of 35 ~ ~ (including but not limited to such Person's supervisor(s) at or after the time the material was created). 6.1.8. Any person who is a current employee of the Disclosing Person. 6.1.9. Any witness who is called, or who counsel for a Party in good faith believes may be called, to testify at trial or deposition in an Action, provided that (1) the testimony of such person has been duly noticed, or such person has been identified as a person with knowledge in a party's initial disclosures or responses to interrogatories, or has been listed on a party's pre-trial witness list; and (2) such person has either (a) executed the Acknowledgment; or (b) been provided with a copy of this Stipulation and Order, and has been informed of the obligation not to disclose any information from any Protected Material to persons other than those specifically authorized by the Stipulation and Order without express written consent of the party who designated the information as Protected Material or order of the Court. 6.1.1 0. Any Expert to whom disclosure is reasonably necessary for an Action, provided that the Expert has first executed the Acknowledgment, and further provided that any report created by such Expert that relies on or incorporates Confidential Discovery Material in whole or in part shall be designated as "CONFIDENTIAL" by the party responsible for its creation. 6.1.11. Any outside photocopying, data processing, graphic production services, litigation support services, mock jurors, or investigators employed by the Parties or their Counsel to assist in an Action and computer personnel performing duties in relation to a computerized litigation support system. 6.1.12. Any mediator or arbitrator engaged by the Parties to an Action, 18 l CaseCase 1:11-md-02262-NRB 17-1569, Document Document 478, ....... 03/16/2018, ·t1405 Filed 2259166, 05/12/16 Page47 Pageof19 85of 35 ... -~ provided such person has first executed the Acknowledgment. 6.1.13. Any other person or entity who counsel for the Disclosing Person agrees, after conferring in good faith, should have access to Confidential Discovery Material or who, upon motion with good cause shown, or upon application made by a Party (including by application made in the course of a deposition where the ability to show such material to the deponent is at issue), the Court orders may have access. 6.1.14. Any disclosure permitted by this section may be made only to the extent reasonably necessary to prosecute or defend these Actions. 6.2 Disclosure of "Highly Confidential" Information: Unless otherwise ordered by the Court or permitted in writing by the Disclosing Person, a Receiving Party may disclose any information or items designated as "Highly Confidential" only to the following persons, provided however, that persons set out .in sections 6.2.4 to 6.2.11 will sign the Acknowledgment prior to disclosure: 6.2.1. The Court and court personnel in these Actions and any appellate court in these Actions. 6.2.2. The Receiving Party's Outside Counsel to whom it is reasonably necessary to disclose the information for an Action and their legal, clerical, or support staff, including temporary or contract staff. 6.2.3. The Receiving Party's In-House Counsel to whom it is reasonably necessary to disclose the information for an Action. 6.2.4. The Parties' insurers and insurers' counsel participating in matters relating to an Action and their legal, clerical, or support staff, including temporary or contract staff. 19 \ CaseCase 1:11-md-02262-NRB 17-1569, Document Document 478,,;. 03/16/2018, "'1405 Filed 2259166, 05/12/16 Page48 Pageof20 85of 35;) <(> 6.2.5. Professional court reporters, stenographers, video operators transcribing depositions or testimony in an Action, and Professional Vendors to whom disclosure is reasonably necessary for an Action. 6.2.6. Any person who Counsel has a good faith basis to believe authored or previously received the Highly Confidential Discovery Material (including "cc's"), or who had access to such Highly Confidential Discovery Material in the normal course of business in their capacity as a co-worker in the same business unit or as a direct or indirect supervisor of or compliance monitor of an author, recipient, or "cc" of such material. 6.2.7. During the conduct of their depositions, to anyone who is a current employee of the Disclosing Person, provided that the requirements of section 6.1.9(2) have been satisfied. For the avoidance of doubt, Plaintiffs reserve their rights to seek relief from the Court from the requirements of this paragraph. 6.2.8. Any Expert to whom disclosure is reasonably necessary for an Action, provided that the Expert has first executed the Acknowledgment, and further provided that any report created by such Expert that relies on or incorporates Highly Confidential Discovery Material in whole or in part shall be designated as "HIGHLY CONFIDENTIAL" by the party responsible for its creation. 6.2.9. Any in-house or outside photocopying, data processing, graphic production services, litigation support services, mock jurors, or investigators employed by the parties or their counsel to assist in an Action and computer personnel performing duties in relation to a computerized litigation support system. 6.2.10. Any mediator or arbitrator engaged by the Parties to an Action, provided such person has first executed the Acknowledgment. 20 \ CaseCase 1:11-md-02262-NRB 17-1569, Document Document 478, .. •' 03/16/2018, 1405 Filed 2259166, 05/12/16 Page49 Pageof21 85of 35 .)\ ..,. 6.2.11. Any person or entity who counsel for the Disclosing Person agrees, after conferring in good faith, should have access to Highly Confidential Discovery Material or who, upon motion with good cause shown, or upon application made by a Party (including by application made in the course of a deposition where the ability to show such material to the deponent is at issue), the Court orders may have access. 6.2.12. Any disclosure permitted by this section may be made only to the extent reasonably necessary to prosecute or defend these Actions. 6.3 Disclosure of Personal Data: To the extent that any Discovery Material is designated "PERSONAL DATA - HIGHLY CONFIDENTIAL" or "PERSONAL DATA - CONFIDENTIAL," the Receiving Party shall, in addition to whatever obligations are imposed below, meet and confer with the Disclosing Person before producing such Discovery Material to a non-signatory to this Stipulation. 6.4 Responsibility for Compliance: Counsel for the Party that discloses "Confidential" or "Highly Confidential" Discovery Material shall be responsible for assuring compliance with the terms of this Stipulation and Order with respect to persons to whom such "Confidential" or "Highly Confidential" Discovery Material is disclosed and shall obtain and retain the original Acknowledgements executed by qualified recipients of "Confidential" or "Highly Confidential" Discovery Material (if such execution is required by the terms of this order). 7. NON-PARTY BORROWER INFORMATION. For purposes ofthis Order, "Non- Party Borrower Information" shall mean any information that constitutes "nonpublic personal information" within the meaning of the Gramm-Leach-Bliley Act, 15 U.S.C. § 6802 et seq. and its implementing regulations, including, but not limited to, any portion of a mortgage loan file, 21 CaseCase 1:11-md-02262-NRB 17-1569, Document Document 478, 03/16/2018, "'1405 Filed 2259166, 05/12/16 Page50 Pageof22 85of 35 .!1') spreadsheet or other document or data set that includes financial or credit information for any person (including any credit history, report or score obtained on any such person to determine the individual's eligibility for credit) together with personally identifiable information with respect to such person, including, but not limited to, name, address, Social Security number, loan number, telephone number, or place or position of work. To the extent any federal or state law or other legal authority governing the disclosure or use of Non-Party Borrower Information ("Non-Party Borrower Information Law") permits disclosure of such information pursuant to an order of a court, this Stipulation and Order shall constitute compliance with such requirement. To the extent any Non-Party Borrower Information Law requires a Disclosing Person and/or Receiving Party to obtain a court-ordered subpoena or give notice to or obtain consent, in any form or manner, from any person or entity before disclosure of any Non-Party Borrower Information, if the Court finds that, in view of the protections provided for in this Order, the volume of documents to be produced and the ongoing oversight of the Court, there is good cause to excuse such requirement, then this Order shall constitute an express direction that the Disclosing Person and/or Receiving Party is exempted from obtaining a court ordered subpoena, having to notify and/or obtain consent from any person or entity prior to the disclosure of Non-Party Borrower Information in an Action, and/or having to provide a certification that notice has been waived for good cause. To the extent that any Non-Party Borrower Information Law requires that any person or entity be notified prior to disclosur~ of Non-Party Borrower Information except where such notice is prohibited by court order, if the Court directs that, in view of the protections provided in this Stipulation and Order, the volume of documents to be produced and the ongoing oversight of the Court, Disclosing Persons and Receiving Parties are explicitly prohibited from providing such notice in the Actions; provided, 22 CaseCase 1:11-md-02262-NRB 17-1569, Document Document .• 478, 03/16/2018, "1405 Filed 2259166, 05/12/16 Page51 Pageof23 85of 35 }~). however, that this Stipulation and Order shall not prohibit any Disclosing Person and/or Receiving Party from contacting any person or entity for any other purpose. Any Disclosing Person or Receiving Party may seek additional orders from the Court that such Party believes may be necessary to comply with any Non-Party Borrower Information Law. 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION. 8.1 If, at any time, any Discovery Material governed by this Stipulation and Order are subpoenaed from any Party by any court, administrative or legislative body, or by any other person or entity purporting to have authority to require the production thereof, the Party to which the subpoena is directed shall, to the extent permitted by applicable law and the rules and requirements of any relevant governmental or regulatory authority, promptly, and in no event more than five (5) business days if reasonably practicable, give written notice to the relevant Disclosing Person and must include a copy of the subpoena or request. 8.2 The Party to whom the subpoena is directed also must immediately inform in writing the person who caused the subpoena to issue that some or all of the material covered by the subpoena is the subject of this Stipulation and Order and deliver a copy of this Stipulation and Order promptly to the person who cause the issuance of the subpoena. 8.3 To the extent permitted by law, the Party to which the subpoena is directed shall not produce material for at least ten (1 0) days after notice of the subpoena is provided to the Disclosing Person in order to provide the Disclosing Person a reasonable period oftime in which to seek to quash, limit or object to the subpoena, or to move for any protection for the Discovery Material. 8.4 If the Party to which the subpoena is directed is compelled by applicable 23 CaseCase 1:11-md-02262-NRB 17-1569, Document Document 478, 03/16/2018, 1405 Filed 2259166, 05/12/16 Page52 Pageof24 85of 35 i'' ~ law or a court order to respond to the subpoena or request in less than ten (1 0) days, the Party to whom the subpoena is directed shall, to the extent permitted by law, notify the Disclosing Person of this fact. In no event shall such Discovery Material subject to this Order and Stipulation be produced to a third party by a Party pursuant to a subpoena without providing the Disclosing Person an opportunity to quash, limit or object, absent a court order to do so or as otherwise required by law. In the event that Discovery Material designated as "Confidential'' or "Highly Confidential" under this Order and Stipulation is produced in response to a subpoena, the recipient of the subpoena shall take commercially reasonable steps to ensure that the protections afforded under this Order and Stipulation shall continue to apply to such Discovery Material. 8.5 The purpose of imposing these duties is to alert the interested parties to the existence of this Stipulation and Order and to afford the Disclosing Person an opportunity to protect its confidentiality interest in the court from which the subpoena or order is issued. The Disclosing Person shall bear all responsibility for any objections to the production of such Discovery Material, except that a Party receiving any subpoena shall not voluntarily make any production to a third party of a Disclosing Person's "Confidential'' or "Highly Confidential" Discovery Material until resolution of any objections interposed by the Disclosing Person, unless compelled by court order issued after giving notice to the Disclosing Person. Nothing in this Stipulation and Order shall be construed as authorizing or requiring a Party or non-party to disobey any law, court order, or information request or subpoena from any federal, state, or foreign regulatory agency or self-regulatory organization requiring the production of Discovery Material, or as limiting the authority of the Court. 9. CHALLENGES TO DESIGNATIONS AND ACCESS. 24 CaseCase 1:11-md-02262-NRB 17-1569, Document Document 478, .• 03/16/2018, 1405 Filed 2259166, 05/12/16 ~Page53 Pageof25 85of 35 ~ 9.1 Entry of this Stipulation and Order shall be without prejudice to any Party's motion for relief from or the modification of the provisions hereof or to any other motion relating to the production, exchange, or use of any document or ESI, or other information in the course of these Actions. If, at any time, (i) a Party objects to a designation of Discovery Material as ''Confidential" or "Highly Confidential," (ii) disputes the limitations on access to be accorded such information under this order, or (iii) objects to a determination by a Disclosing Person that it is not entitled to receive certain Discovery Materials as set forth in section 2 of this Stipulation and Order, that Party shall notify the Disclosing Person, in writing, of its disagreement and specifically identify the information or restriction on access in dispute. 9.2 If a Party or Disclosing Person objects to a determination by a Receiving Party that a Disclosing Person's Discovery Materials shall or shall not be shared in a Particular Action as set forth in section 2 of this Stipulation and Order, the Disclosing Person or objecting Party shall notify the Receiving Party in writing of its disagreement and specifically identify the information or restriction on access in dispute. 9.3 Following receipt of the written notification set for in sections 9.1 and 9.2 of this Stipulation and Order, counsel for the Disclosing Person or Receiving Party and any Party challenging a confidentiality designation or determination concerning which Parties shall have access to the Discovery Materials shall meet and confer in an effort to resolve any disagreement. If, despite their good faith effort, the Parties do not resolve their disagreement within ten (10) days of the Disclosing Person's or Receiving Party's receipt of the written notice, any Party contesting the designation or determination concerning access to the Discovery Materials may thereafter apply to the Court on notice, consistent with the governing local rules and individual practices of the assigned judge, on the propriety of the designation or determination concerning 25 CaseCase 1:11-md-02262-NRB 17-1569, Document Document 478, 03/16/2018, 1405 Filed 2259166, 05/12/16 Page54 Pageof26 85of 35,.). access. 9.4 Where a Party challenges a designation of "Confidential" or "Highly Confidential" or a limitation on access as a result of such a designation, the challenging Party must initiate the motion before the Court, but it is the burden of the Disclosing Person seeking protection under this order to demonstrate that the designation is appropriate. 9.5 Until the Receiving Party applies to the Court for a ruling on the designation and until the Court rules on that motion, the Discovery Material in question will be treated as "Confidential" or "Highly Confidential" under this Stipulation and Order, and a challenge under this section shall not affect a Party's right of access to "Confidential'' or "Highly Confidential" Discovery Material or to disclose information as provided for in this Stipulation and Order. A Party does not by itself waive its right to challenge a "Confidential," "Highly Confidential," "PERSONAL DATA- CONFIDENTIAL," or "PERSONAL DATA- HIGHLY CONFIDENTIAL" designation by not electing to mount a challenge promptly after the original designation is made. 9.6 Where a Party challenges a determination that Discovery Materials shall or shall not be shared with any Party, the Party challenging the initial determination of the Disclosing Person (or, in the case of a received production, the Receiving Party) must initiate the motion before the Court, but it is the burden of the Party seeking access to the Discovery Materials under this order to demonstrate that the access is appropriate. 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL. If a Receiving Party learns that, by inadvertence, it has disclosed Protected Material to any person or in any circumstance not authorized under this Stipulation and Order, the Receiving Party must immediately (a) notify in writing the Disclosing Person of the unauthorized disclosures; 26 -· CaseCase 1:11-md-02262-NRB 17-1569, Document Document 478, 03/16/2018, 1405 Filed 2259166, 05/12/16 Page55 Pageof27 85of 35 ... .. (b) use its best efforts to retrieve all copies of the Protected Material; (c) inform the person or persons to whom unauthorized disclosures were made of all the terms of this Stipulation and Order; and (d) request such person or persons to execute the Acknowledgment that is attached hereto as Exhibit A. 11. USE AND DISCLOSURE OF INDEPENDENTLY OBTAINED INFORMATION. Nothing herein shall impose any restriction on the use or disclosure by a Party or its agent of its own information, or of publicly available information, or of information lawfully available to that party, or of information that lawfully came into the possession of the Party independent of any disclosure of Discovery Material made in an Action. 12. ADVICE TO CLIENT. Nothing in this Stipulation and Order will bar or otherwise restrict counsel from rendering advice to his or her client with respect to this matter or from generally referring to or relying upon "Confidential" or "Highly Confidential" material in rendering such advice so long as counsel does not specifically disclose the substance of the "Confidential" or "Highly Confidential" material. 13. PRE-TRIAL APPLICATION ONLY. This Stipulation and Order shall apply to pre-trial proceedings in these Actions and shall have no application at trial. The Parties agree to confer in good faith on a protective order to govern during trial in these Actions. This Stipulation and Order, however, shall remain in effect until such time as an order to govern trial proceedings is entered. 14. DURATION OF ORDER/RETURN OF "CONFIDENTIAL" AND "HIGHLY CONFIDENTIAL" INFORMATION. All provisions ofthis Stipulation and Order restricting the use of "Confidential" or "Highly Confidential" information shall continue to be binding after the conclusion of an Action unless otherwise agreed or ordered by the Court. Within ninety 27 CaseCase 1:11-md-02262-NRB 17-1569, Document Document 478, 03/16/2018, 1405 Filed 2259166, 05/12/16 Page56 Pageof28 85of 35) (90) days of the conclusion of an Action (whether by entry of a final order of dismissal, judgment, settlement, or disposition on appeal, or otherwise, and where the time for any further appeals has expired), all Parties in receipt of Confidential or Highly Confidential Discovery Material in relation to that Action shall make commercially reasonable efforts to either return such materials and copies thereof to the Disclosing Person or destroy such materials and certify that fact. The Receiving Party is not required to return or destroy Confidential Material that (i) is stored on backup storage media made in accordance with regular data backup procedures for disaster recovery purposes; (ii) is located in the email archive system or archived electronic files of departed employees; or (iii) is subject to legal hold obligations; provided however, that these materials continue to be subject to the terms of this Stipulation and Order. Backup storage media will not be restored for purposes of returning or certifying destruction of Confidential or Highly Confidential Discovery Material but such retained information shall continue to be treated in accordance with the Stipulation and Order. Counsel of record shall also be permitted to keep a copy of Confidential or Highly Confidential Discovery Material to the extent that it is incorporated into any pleadings, motions, or other work product. In that case, counsel of record shall continue to treat the Confidential or Highly Confidential Discovery Material in accordance with this Stipulation and Order. Upon request, counsel of record shall certify in writing that they have complied with this section. 15. RESERVATION OF RIGHTS. Nothing contained in this Stipulation and Order or any designation of confidentiality hereunder, or any failure to make such designation, shall be used or characterized by any party as an admission by a Party or a Party opponent. Nothing in this Stipulation and Order shall be deemed an admission that any particular information designated as "Confidential" or "Highly Confidential" is entitled to protection under the 28 CaseCase 1:11-md-02262-NRB 17-1569, Document Document 478, 03/16/2018, 1405 Filed 2259166, 05/12/16 Page57 Pageof29 85of 35 .. Stipulation and Order, Federal Rule of Civil Procedure 26(c), or any other law. Nothing in this Stipulation and Order shall be construed as granting any person or entity a right to receive specific "Confidential" or "Highly Confidential" information where a court has entered an order precluding that person or entity from obtaining access to that information. The Parties specifically reserve the right to challenge the designation of any particular information as "Confidential" or "Highly Confidential" and agree that by stipulating to entry of this Stipulation and Order, no Party waives any right it otherwise would have to object to disclosing or producing any information or item on any ground not addressed in this Stipulation and Order. Similarly, no Party waives any right to object on any ground to introduction or use as evidence of any of the Discovery Material covered by this Stipulation and Order. 16. STANDARD OF CARE. The recipient of any "Confidential" or "Highly Confidential" Discovery Material shall maintain such material in a secure and safe area and shall exercise a standard of due and proper care with respect to the storage, custody, use, and/or dissemination sufficient to safeguard against unauthorized or inadvertent disclosure of such material. "Confidential" or "Highly Confidential" Discovery Material shall not be copied, reproduced, extracted or abstracted, except to the extent that such copying, reproduction, extraction or abstraction is reasonably necessary for the conduct of an Action. All such copies, reproductions, extractions, and abstractions shall be subject to the terms of this Stipulation and Order and labeled in the same manner as the designated material on which they are based. The recipient of Personal Data shall protect these materials with the same degree of care that they use to protect and safeguard their own like information, but not less than the degree of care required of financial institutions to meet their own obligations as to such data given its sensitivity and value. Such measures shall include, but are not limited to, maintaining the data 29 CaseCase 1:11-md-02262-NRB 17-1569, Document Document 478, 03/16/2018, 1405 Filed ~ 2259166, 05/12/16 Page58 Pageof30 85of 35:. in encrypted form when not being used, restricting access to the data to persons employed by Counsel or Experts who are actively assisting Counsel and Experts in an Action, and ensuring that the data is not copied, reproduced, extracted or abstracted except to the extent that such acts are reasonably necessary for the conduct of the Actions. Any such copies, reproductions, extractions or abstractions are Personal Data and are subject to the same restrictions and controls. 17. USE AND DISCLOSURE OF OWN INFORMATION. Nothing in this Stipulation and Order shall be construed to limit any Disclosing Person's use or disclosure of its own documents, materials, or information that have been designated as "Confidential" or "Highly Confidential" pursuant to this Stipulation and Order. 18. EFFECT ON OTHER AGREEMENTS. Nothing in this Stipulation and Order shall be construed to effect, amend, or modify any existing confidentiality agreements between, or protective orders applicable to, any of the parties hereto. 19. MODIFICATION. This Stipulation and Order may be changed only by agreement of the parties hereto or by an order of this Court. Except as provided herein, this Stipulation and Order shall not prejudice the right of any party or non-party hereto to move the Court to broaden or restrict the rights of access to and use of particular Discovery Material, or to seek modification of this Stipulation and Order upon due notice to all other Parties and affected non- parties. 20. NON-PARTY DISCOVERY. 20.1 The Parties shall serve a copy of this Stipulation and Order simultaneously with any subpoena or other request for documents or information issued to any non-party in connection with these Actions. Any Party may petition the Court to seek to enforce compliance 30 CaseCase 1:11-md-02262-NRB 17-1569, Document Document 478, 03/16/2018, 1405 Filed 2259166, 05/12/16 Page59 Pageof31 85of 35 d with any non-party subpoena served in this matter by any other Party, or with other means pursued by such Party to seek discovery from non-parties outside the United States, provided that nothing herein shall be construed to prevent or limit any non-party from opposing such petition or from petitioning or applying to the Court or other authorities for protective measures in connection with such non-party subpoenas or other means of seeking discovery from non- parties outside the United States. 20.2 A non-party from which discovery is sought by one or more Parties to these Actions may designate Discovery Material that it produces as "CONFIDENTIAL" or ''HIGHLY CONFIDENTIAL" consistent with section 3 and the other terms of this Stipulation and Order. Under such circumstances, Discovery Material designated "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL" "PERSONAL DATA - CONFIDENTIAL" or ''PERSONAL DATA - HIGHLY CONFIDENTIAL" by a non-party shall be assigned the same protection as Discovery Material so designated by a party that is a Disclosing Person, and all duties applicable to a Party that is a Disclosing Person under this Stipulation and Order shall apply to the non- party Disclosing Person. 21. DUTIES OF LIAISON COUNSEL. 21.1 Defendants' Liaison Counsel: Defendants' Liaison Counsel shall be responsible for distributing notice to all Defendants who are Parties whenever a Party is required to serve notice upon Defendants' Liaison Counsel pursuant to the terms of this Stipulation and Order. Defendants' Liaison Counsel shall be permitted to withdraw from service as Defendants' Liaison Counsel for any reason by providing written notice to the Court and serving such notice upon all Parties. 21.2 Plaintiffs' Liaison Counsel: Plaintiffs' Liaison Counsel shall be 31 .. <> CaseCase 1:11-md-02262-NRB 17-1569, Document Document 478, 03/16/2018, 1405 Filed 2259166, 05/12/16 Page60 Pageof32 85of 35 T S> responsible for distributing notice to all Plaintiffs who are Parties whenever a party is required to serve notice upon Plaintiffs' Liaison Counsel pursuant to the terms of this Stipulation and Order. Plaintiffs' Liaison Counsel shall be permitted to withdraw from service as Plaintiffs' Liaison Counsel for any reason by providing written notice to the Court and serving such notice upon all Parties. 22. NEW PARTIES TO THESE ACTIONS. In the event that additional persons or entities become parties to these Actions, such parties shall not have access to Confidential or Highly Confidential Material produced by or obtained from any Disclosing Person until the newly joined parties or their counsel endorse a copy of the Acknowledgment and file it with the Court. 23. COURT RETAINS JURISDICTION. The Court retains jurisdiction even after final disposition of this litigation to enforce this Stipulation and Order by the sanctions set forth in Rule 37 of the Federal Rules of Civil Procedure and any other sanctions as may be available to the presiding judge, including the power to hold parties or other violators of this Stipulation and Order in contempt and to make such amendments, modifications, deletions, and additions to this Stipulation and Order as the Court may from time to time deem appropriate. Upon remand of any Action from the MDL court to the district from which it was transferred, the remand court is responsible for enforcement of this Stipulation and Order. 24. DEFENDANTS DO NOT CONSENT TO JURISDICTION. Notwithstanding this Stipulation and Order (or any section herein, including, but not limited to, section 23), no Defendant consents to jurisdiction in any of these Actions by entering this agreement, and all Defendants preserve their right to raise jurisdictional defenses. 25. GOVERNING LAW. Except to the extent that federal law may be applicable, this 32 .. CaseCase 1:11-md-02262-NRB 17-1569, Document .,.. Document 478, 03/16/2018, 1405 Filed 2259166, 05/12/16 Page61 Pageof33 85of 35 ..,p Stipulation and Order is governed by, interpreted under, and construed and enforced in accordance with the laws of the State of New York, without regard to conflict of law principles. 26. EXECUTION. This Stipulation and Order may be executed in counterparts. This Stipulation and Order shall become effective as a stipulation as among the executing Parties immediately upon its execution by such executing Parties. 33 1 of' CaseCase 1:11-md-02262-NRB 17-1569, Document Document 478, l. 03/16/2018, 1405 Filed 2259166, "' 05/12/16 Page62 Pageof34 85of 35 ..,. .. ACKNOWLEDGMENT UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK IN RE LIBOR-BASED FINANCIAL MDL No. 2262 INSTRUMENTS ANTITRUST LITIGATION ECF Case Master File No. 1: 11-md-2262- NRB THIS DOCUMENT RELATES TO ALL ACTIONS. ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND BY STIPULATION AND ORDER OF CONFIDENTIALITY l,, under penalty of perjury, 28 U.S.C. § 1746, declare as follows: 1. Information, including documents and things, designated as "CONFIDENTIAL" or ''HIGHLY CONFIDENTIAL" as defined in the Stipulation and Order of Confidentiality entered in the above-captioned Actions (the "Stipulation and Order"), is being provided to me pursuant to the restrictions of the Stipulation and Order. 2. I have been given a copy of and have read the Stipulation and Order. 35 .r CaseCase 1:11-md-02262-NRB 17-1569, Document Document 478, 03/16/2018,:r1405 Filed 2259166, 05/12/16 Page63 Pageof35 85of 35 ... .. 3. I am familiar with the terms of the Stipulation and Order, and I agree to comply with and to be bound by its terms. 4. I submit to the jurisdiction of the United States District Court for the Southern District ofNew York for enforcement ofthe Stipulation and Order. 5. I acknowledge that violation of the Stipulation and Order may result in penalties for contempt of court. 6. I agree to not use any Confidential or Highly Confidential Discovery Materials disclosed to me pursuant to the Stipulation and Order except for purposes of the above-captioned litigation and not to disclose any of this information to persons other than those specifically authorized by the Stipulation and Order, without the express written consent of the party who designated the information as confidential or by order of the presiding judge. 7. I agree to notify any stenographic, clerical, or technical personnel who are required to assist me of the terms of this Stipulation and Order and of its binding effect on them and me. Name: Signature: Signed at, this _ _ day of, 2016 36 Case Case 1:11-md-02262-NRB 17-1569, DocumentDocument 478, 03/16/2018, 1530 Filed 2259166, 08/09/16 Page64 Page of 85 1 of 2 Case Case 1:11-md-02262-NRB 17-1569, DocumentDocument 478, 03/16/2018, 1530 Filed 2259166, 08/09/16 Page65 Page of 85 2 of 2 Case Case 1:11-md-02262-NRB 17-1569, DocumentDocument 478, 03/16/2018, 1531 Filed 2259166, 08/09/16 Page66 Page of 85 1 of 2 Case Case 1:11-md-02262-NRB 17-1569, DocumentDocument 478, 03/16/2018, 1531 Filed 2259166, 08/09/16 Page67 Page of 85 2 of 2 Case Case 1:11-md-02262-NRB 17-1569, DocumentDocument 478, 03/16/2018, 1549 Filed 2259166, 08/22/16 Page68 Page of 85 1 of 6 Case Case 1:11-md-02262-NRB 17-1569, DocumentDocument 478, 03/16/2018, 1549 Filed 2259166, 08/22/16 Page69 Page of 85 2 of 6 Case Case 1:11-md-02262-NRB 17-1569, DocumentDocument 478, 03/16/2018, 1549 Filed 2259166, 08/22/16 Page70 Page of 85 3 of 6 Case Case 1:11-md-02262-NRB 17-1569, DocumentDocument 478, 03/16/2018, 1549 Filed 2259166, 08/22/16 Page71 Page of 85 4 of 6 Case Case 1:11-md-02262-NRB 17-1569, DocumentDocument 478, 03/16/2018, 1549 Filed 2259166, 08/22/16 Page72 Page of 85 5 of 6 Case Case 1:11-md-02262-NRB 17-1569, DocumentDocument 478, 03/16/2018, 1549 Filed 2259166, 08/22/16 Page73 Page of 85 6 of 6 Case Case 1:11-md-02262-NRB 17-1569, DocumentDocument 478, 03/16/2018, 1609 Filed 2259166, 10/24/16 Page74 Page of 85 1 of 2 Case Case 1:11-md-02262-NRB 17-1569, DocumentDocument 478, 03/16/2018, 1609 Filed 2259166, 10/24/16 Page75 Page of 85 2 of 2 Case Case 1:11-md-02262-NRB 17-1569, DocumentDocument 478, 03/16/2018, 1610 Filed 2259166, 10/24/16 Page76 Page of 85 1 of 2 Case Case 1:11-md-02262-NRB 17-1569, DocumentDocument 478, 03/16/2018, 1610 Filed 2259166, 10/24/16 Page77 Page of 85 2 of 2 Case Case 1:11-md-02262-NRB 17-1569, DocumentDocument 478, 03/16/2018, 1632 Filed 2259166, 11/01/16 Page78 Page of 85 1 of 6 Case Case 1:11-md-02262-NRB 17-1569, DocumentDocument 478, 03/16/2018, 1632 Filed 2259166, 11/01/16 Page79 Page of 85 2 of 6 Case Case 1:11-md-02262-NRB 17-1569, DocumentDocument 478, 03/16/2018, 1632 Filed 2259166, 11/01/16 Page80 Page of 85 3 of 6 Case Case 1:11-md-02262-NRB 17-1569, DocumentDocument 478, 03/16/2018, 1632 Filed 2259166, 11/01/16 Page81 Page of 85 4 of 6 Case Case 1:11-md-02262-NRB 17-1569, DocumentDocument 478, 03/16/2018, 1632 Filed 2259166, 11/01/16 Page82 Page of 85 5 of 6 Case Case 1:11-md-02262-NRB 17-1569, DocumentDocument 478, 03/16/2018, 1632 Filed 2259166, 11/01/16 Page83 Page of 85 6 of 6 Case Case 1:11-md-02262-NRB 17-1569, DocumentDocument 478, 03/16/2018, 1639 Filed 2259166, 11/07/16 Page84 Page of 85 1 of 2 Case Case 1:11-md-02262-NRB 17-1569, DocumentDocument 478, 03/16/2018, 1639 Filed 2259166, 11/07/16 Page85 Page of 85 2 of 2

CERTIFICATE OF SERVICE, for CONFIDENTIAL JOINT REPLY BRIEF FOR PLAINTIFFS-APPELLANTS REGARDING PERSONAL JURISDICTION (FILED UNDER SEAL), on behalf of Appellant Charles Schwab & Co., Inc., Charles Schwab Bank, N.A., Schwab Advisor Cash Reserves, Schwab Cash Reserves, Schwab Investor Money Fund, Schwab Money Market Fund, Schwab Retirement Advantage Money Fund, Schwab Short-Term Bond Market Fund, Schwab Total Bond Market Fund, Schwab U.S. Dollar Liquid Assets Fund, Schwab Value Advantage Money Fund, Schwab YieldPlus Fund, Schwab YieldPlus Fund Liquidation Trust and The Charles Schwab Corporation in 17-1569, Appellant Ellen Gelboim and Linda Zacher in 17-1989, FILED. Service date 03/16/2018 by email.[2259167] [17-1569, 17-1915, 17-1989, 17-2056, 17-2343, 17-2347, 17-2351, 17-2352, 17-2360, 17-2376, 17-2381, 17-2383, 17-2413] [Entered: 03/16/2018 08:48 PM]

Case 17-1569, Document 479, 03/16/2018, 2259167, Page1 of 7 STATE OF NEW YORK)) ss.: AFFIDAVIT OF SERVICE COUNTY OF NEW YORK) BY E-MAIL (BY CONSENT OF THE PARTIES) I, Julian Hadiz, being duly sworn, depose and say that deponent is not a party to the action, is over 18 years of age and resides at the address shown above or at On March 16, 2018 deponent served the within: CONFIDENTIAL JOINT REPLY BRIEF FOR PLAINTIFFS- APPELLANTS REGARDING PERSONAL JURISDICTION (FILED UNDER SEAL) upon: SEE ATTACHED SERVICE LIST via electronic mail. Sworn to before me on March 16, 2018 s/ Mariana Braylovskaya s/ Julian Hadiz MARIANA BRAYLOVSKAYA Notary Public State of New York No. 01BR6004935 Qualified in Richmond County Commission Expires March 30, 2018 Job# 279450 Case 17-1569, Document 479, 03/16/2018, 2259167, Page2 of 7 SERVICE LIST THOMAS C. GOLDSTEIN RICHARD W. MITHOFF ERIC F. CITRON MITHOFFLAW CHARLES H. DAVIS One Allen Center GOLDSTEIN & RUSSELL, P.C. Penthouse, Suite 3450 7475 Wisconsin Avenue, Suite 850 500 Dallas Street Bethesda, Maryland 20814 Houston, Texas 77002 (202) 362-0636 (713) 654-1122 Attorneys for the Schwab Plaintiffs- Attorneys for Plaintiff-Appellant Appellants and Plaintiffs-Appellants Ellen Gelboim City ofHouston and Linda Zacher BARRY BARNETT NANCI E. NISHIMURA SUSMAN GODFREY L.L.P. COTCHETT, PITRE & MCCARTHY, LLP 1000 Louisiana Street 840 Malcolm Road, Suite 200 Houston, Texas 77002 Burlingame, California 94010 (713) 651-9366 (650) 697-6000 -and- -and- WILLIAM C. CARMODY ALEXANDER E. BARNETT ARUN S. SUBRAMANIAN COTCHETT, PITRE &McCARTHY, LLP GENGCHEN 40 Worth Street, lOth Floor SUSMAN GODFREY L.L.P. New York, New York 10013 1301 Avenue ofthe Americas (212) 201-6820 New York, New York 10019 (212) 336-8330 Attorneys for Plaintiffs-Appellants City of Houston, California Public -and- Plaintiffs, County ofSonoma, The San Mateo County Joint Powers DREW HANSEN Financing Authority, Richmond Joint SUSMAN GODFREY L.L.P. Powers Financing Authority, 1201 Third Avenue Successor Agency to the Richmond Seattle, Washington 98101 Community Redevelopment Agency, (206) 516-3880 Riverside Public Financing -and- Authority, David E. Sundstrom, East Bay Municipal Utility District, and MARC M. SELTZER Regents of the University of SUSMAN GODFREY L.L.P. California 1901 Avenue of the Stars Los Angeles, California 90067 (310) 789-3100 -and- Case 17-1569, Document 479, 03/16/2018, 2259167, Page3 of 7 HILARY K. SCHERRER DAVID E. KOVEL NATHANIAL C. GIDDINGS ANDREw M. McNEELA HAUSFELD LLP KIRBY MciNERNEY LLP 1700 K Street, NW 825 Third A venue Washington, DC 20006 New York, New York 10022 (202) 540-7200 (212) 371-6600 -and- Attorneys for Plaintiffs-Appellants City of New Britain, Mayor and City Council CHRISTOPHER LOVELL of Baltimore, Vistra Energy LOVELL STEWART HALEBIAN Corporation, Yale University, and JACOBSON LLP Jennie Stuart Medical Center, Inc. 61 Broadway, Suite 501 New York, New York 10006 KAREN L. MORRIS (212) 608-1900 PATRICK F. MORRIS R. MICHAEL LINDSEY Attorneys for Plaintiffs-Appellants MORRIS AND MORRIS LLC Metzler Investment GmbH, Gary COUNSELORS AT LAW Francis, 303030 Trading LLC, 4023 Kennett Pike, #254 Atlantic Trading USA, LLC, FTC Wilmington, Delaware 19807 Futures Fund PCC Ltd, FTC (302) 426-0400 Futures Fund SICA V, and Nathaniel Haynes -and- DAVID H. WEINSTEIN DAVID C. FREDERICK ROBERTS.KrTCHENOFF ANDREW C. SHEN WEINSTEIN KrTCHENOFF & ASHER LLC KELLOGG, HANSEN, TODD, FIGEL 100 South Broad Street, Suite 705 & FREDERICK, P.L.L.C. Philadelphia, Pennsylvania 19110 1615 M Street, NW, Suite 400 (215) 545-7200 Washington, DC 20036 (202) 326-7900 Attorneys for Plaintiffs-Appellants Ellen Gelboim and Linda Zacher Attorneys for Plaintiff-Appellant National Credit Union ARTHUR J. BURKE Administration Board ADAM G. MEHES PAULS. MISHKIN DANIELL. BROCKETT ROBERT F. WISE, JR. STEIG D. OLSON DAVIS POLK & WARDWELL LLP DANIEL P. CUNNINGHAM 450 Lexington Avenue QUINN EMANUEL URQUHART New York, New York 10017 & SULLIVAN, LLP (212) 450-4000 51 Madison Avenue, 22nd Floor New York, New York 10010 Attorneys for Defendants-Appellees Bank (212) 849-7000 ofAmerica Corporation and Bank of -and- America, NA. Case 17-1569, Document 479, 03/16/2018, 2259167, Page4 of 7 DAVID S. LESSER JEREMY ANDERSEN WIUviER CUTLER PICKERING HALE QUINN EMANUEL URQUHART ANDDORRLLP & SULLIVAN, LLP Seven World Trade Center 865 South Figueroa Street, 1oth Floor 250 Greenwich Street Los Angeles, California 900 17 New York, New York 10007 (213) 443-3000 (212) 230-8800 Attorneys for Plaintiffs-Appellants Prudential Investment Portfolios 2, Attorneys for Defendant-Appellee The Darby Financial Products, Capital Royal Bank ofScotland Group P LC Ventures International, and Salix Capital US Inc. ANDREW A. RUFFINO ALAN M. WISEMAN STEIG D. OLSON COVINGTON & BURLING LLP DANIELL. BROCKETT One CityCenter DANIEL P. CUNNINGHAM 850 1Oth Street, NW QUINN EMANUEL URQUHART Washington, DC 20001 & SULLIVAN, LLP (202) 662-6000 51 Madison Avenue, 22"d Floor New York, New York 10010 Attorneys for Defendants-Appellees (212) 849-7000 Citibank, NA., Citigroup Inc., Citi -and- Swapco Inc. and Citigroup Financial Products Inc. JEREMY ANDERSEN QUINN EMANUEL URQUHART THOMAS C. RICE & SULLIVAN, LLP PAUL C. GLUCKOW 865 South Figueroa Street, 1oth Floor ALEXANDER LI Los Angeles, California 9001 7 ALAN C. TURNER (213) 443-3000 SIMPSON THACHER & BARTLETT LLP 425 Lexington Avenue Attorneys for Plaintiffs-Appellants New York, New York 10017 The City ofPhiladelphia and the (212) 455-2000 Pennsylvania Intergovernmental Cooperation Authority -and- ABRAMELLIS NEALK. KATYAL SIMPSON THACHER & BARTLETT LLP EUGENE A. SOKOLOFF 900 G Street, NW HOGAN LOVELLS US LLP Washington, DC 20001 555 13th Street, NW (202) 636-5500 Washington, DC 20004 (202) 637-5600 Attorneys for Defendants-Appellees - and- JPMorgan Chase & Co., JPMorgan Chase Bank, NA. and JP. Morgan Bank Dublin P LC Case 17-1569, Document 479, 03/16/2018, 2259167, Page5 of 7 GREGORY T. CASAMENTO MARc J. GOTTRIDGE R. JAMES JUDE DE ROSE III LISA J. FRIED LOCKE LORD LLP BENJAMIN A. FLEMING Brookfield Place HOGAN LOVELLS US LLP 200 Vesey Street, 20th Floor 875 Third Avenue New York, New York 10281 New York, New York 10022 (212) 415-8600 (212) 918-3000 -and- Attorneys for Defendants-Appellees ROGER B. COWIE HBOS pic and Lloyds Banking LOCKE LORD LLP Group pic 2200 Ross A venue, Suite 2800 Dallas, Texas 75201 JOEL KURTZBERG (214) 740-8000 HERBERT S. WASHER - and - ELAIKATZ JASON M. HALL JAMEs M. GOODIN ADAMS. MINTZ JULIE C. WEBB CAHILL GORDON & REINDEL LLP LOCKE LORD LLP 80 Pine Street 111 South Wacker Drive, Suite 4100 New York, New York 10005 Chicago, Illinois 60606 (212) 701-3000 (312) 443-0700 Attorneys for Defendants-Appellees Attorneys for Defendants-Appellees Credit Suisse Group A G, Credit HSBC Bank P LC, HSBC Holdings Suisse International, Credit Suisse PLC, HSBC Securities (USA) Inc., (USA), Inc., Credit Suisse AG and HSBC Bank USA, NA., HSBC Finance Credit Suisse Securities (USA) LLC Corporation, HSBC USA, Inc. and The Hong Kong and Shanghai Banking MOSES SIL YERMAN Corporation Ltd AIDAN SYNNOTT PAUL, WEISS, RrFKIND, WHARTON JACK BALLARD & GARRISON LLP BALLARD & LITTLEFIELD, LLP 1285 Avenue ofthe Americas 3700 Buffalo Speedway, Suite 250 New York, New York 10019 Houston, Texas 77098 (212) 373-3000 (713) 403-6400 Attorneys for Defendant-Appellee Attorneys for Defendants-Appellees Deutsche Bank A G HSBC Bank PLC and HSBC Holdings PLC Case 17-1569, Document 479, 03/16/2018, 2259167, Page6 of 7 CHRISTOPHER M. PAPARELLA ANDREW W. STERN HUGHES HUBBARD & REED LLP THOMAS A. PASKOWITZ One Battery Park Plaza ALAN M. UNGER New York, New York 10004 SIDLEY AUSTIN LLP (212) 837-6000 787 Seventh Avenue New York, New York 10019 Attorneys for Defendants-Appellees (212) 839-5300 WestDeutsche ImmobilienBank AG, Portigon AG and WestLB AG Attorneys for Defendant-Appellee The Norinchukin Bank ROBERT T. SMITH DAVIDR. GELFAND KATTEN MUCHIN ROSENMAN LLP ROBERT C. HORA 2900 K Street, NW MARK D. VILLAVERDE North Tower, Suite 200 JONATHAN OHRING Washington, DC 20007 MILBANK, TWEED, HADLEY (202) 625-3500 &McCLOYLLP 28 Liberty Street -and- New York, New York 10005 CHRISTIAN T. KEMNITZ (212) 530-5000 KATTEN MUCHIN ROSENMAN LLP 525 West Monroe Street Attorneys for Defendants-Appellees Chicago, Illinois 60661 Cooperatieve Rabobank UA. (fllda (312) 902-5200 Cooperatieve Centrale Raiffeisen- Boerenleenbank B.A.) and Rabobank Attorneys for Defendants-Appellees Group Royal Bank of Canada and RBC Capital Markets LLC DARYL A LIBOW MICHAEL A. BRILLE CHRISTOPHER M. VIAPIANO BOIES SCHILLER FLEXNER LLP SULLIVAN & CROMWELL LLP 1401 New York Avenue, NW 1700 New York Avenue, NW #500 Washington, DC 20005 Washington, DC 20006 (202) 237-2727 (202) 956-7500 - and- Attorneys for Defendant-Appellee The Bank ofTokyo-Mitsubishi UFJ, Ltd. LEIGH NATHANSON JONATHAN D. SCHILLER BOIES SCHILLER FLEXNER LLP 575 Lexington Avenue, 7th Floor New York, New York 10022 (212) 446-2300 Attorneys for Defendants-Appellees Barclays Bank P LC and Barclays Case 17-1569, Document 479, 03/16/2018, 2259167, Page7 of 7 Capital Inc. JEFFERSON E. BELL STEVEN WOLOWITZ Eruc 1. STOCK HENNINGER S. BULLOCK PETER SULLIVAN ANDREW CALICA LAWRENCEJ. ZWEIFACH MAYER BROWN LLP GIBSON, DUNN & CRUTCHER LLP 1221 A venue of the Americas 200 Park A venue, 47th Floor New York, New York 10020 New York, New York 10166 (212) 506-2500 (212) 351-4000 Attorneys for Defendant-Appellee Attorneys for Defendants-Appellees UBS Societe Generale A G, UBS Securities LLC and UBS Limited JEFF G. HAMMEL LATHAM & WATKINS LLP 885 Third Avenue New York, New York 10022 (212) 906-1200 Attorneys for Defendants-Appellees BBA Enterprises, Ltd, BBA Libor, Ltd and British Bankers' Association

REPLY BRIEF, on behalf of Appellant Charles Schwab & Co., Inc., Charles Schwab Bank, N.A., Schwab Advisor Cash Reserves, Schwab Cash Reserves, Schwab Investor Money Fund, Schwab Money Market Fund, Schwab Retirement Advantage Money Fund, Schwab Short-Term Bond Market Fund, Schwab Total Bond Market Fund, Schwab U.S. Dollar Liquid Assets Fund, Schwab Value Advantage Money Fund, Schwab YieldPlus Fund, Schwab YieldPlus Fund Liquidation Trust and The Charles Schwab Corporation in 17-1569, Appellant Ellen Gelboim and Linda Zacher in 17-1989, FILED. Service date 03/16/2018 by CM/ECF. [2259171] [17-1569, 17-1915, 17-1989, 17-2056, 17-2343, 17-2347, 17-2351, 17-2352, 17-2360, 17-2376, 17-2381, 17-2383, 17-2413] [Entered: 03/16/2018 11:50 PM]

Case 17-1569, Document 480, 03/16/2018, 2259171, Page1 of 34 17-1569(L), United States Court of Appeals 17-1989(CON) for the Second Circuit SCHWAB SHORT-TERM BOND MARKET FUND, SCHWAB TOTAL BOND MARKET FUND, SCHWAB U.S. DOLLAR LIQUID ASSETS FUND, (For Continuation of Caption See Next Page) _______________________________ ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK JOINT REPLY BRIEF FOR PLAINTIFFS-APPELLANTS REGARDING ANTITRUST STANDING THOMAS C. GOLDSTEIN STEVEN E. FINEMAN ERIC F. CITRON MICHAEL J. MIARMI CHARLES H. DAVIS LIEFF CABRASER HEIMANN GOLDSTEIN & RUSSELL, P.C. & BERNSTEIN, LLP 7475 Wisconsin Avenue, Suite 850 250 Hudson Street, 8th Floor Bethesda, Maryland 20814 New York, New York 10013 (202) 362-0636 (212) 355-9500 – and – Attorneys for the Schwab Plaintiffs-Appellants and Plaintiffs-Appellants Ellen Gelboim and BRENDAN P. GLACKIN Linda Zacher LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 275 Battery Street, 29th Floor San Francisco, California 94111 (415) 956-1000 Attorneys for the Schwab Plaintiffs- Appellants (For Continuation of Appearances See Next Page) Case 17-1569, Document 480, 03/16/2018, 2259171, Page2 of 34 SCHWAB MONEY MARKET FUND, SCHWAB VALUE ADVANTAGE MONEY FUND, SCHWAB RETIREMENT ADVANTAGE MONEY FUND, SCHWAB INVESTOR MONEY FUND, SCHWAB CASH RESERVES, SCHWAB ADVISOR CASH RESERVES, CHARLES SCHWAB BANK, N.A., CHARLES SCHWAB & CO., INC., SCHWAB YIELDPLUS FUND, SCHWAB YIELDPLUS FUND LIQUIDATION TRUST, THE CHARLES SCHWAB CORPORATION, CITY OF NEW BRITAIN, on behalf of itself and all others similarly situated, MAYOR AND CITY COUNCIL OF BALTIMORE, CITY OF HOUSTON, VISTRA ENERGY CORPORATION, YALE UNIVERSITY, JENNIE STUART MEDICAL CENTER, INC., FTC FUTURES FUND PCC LTD, on behalf of themselves and all others similarly situated, NATIONAL CREDIT UNION ADMINISTRATION BOARD, as Liquidating Agent of U.S. Central Federal Credit Union, WESTERN CORPORATE FEDERAL CREDIT UNION, MEMBERS UNITED CORPORATE FEDERAL CREDIT UNION, SOUTHWEST CORPORATE FEDERAL CREDIT UNION, AND CONSTITUTION CORPORATE FEDERAL CREDIT UNION, PENNSYLVANIA INTERGOVERNMENTAL COOPERATION AUTHORITY, CITY OF PHILADELPHIA, DARBY FINANCIAL PRODUCTS, SALIX CAPITAL US INC., CAPITAL VENTURES INTERNATIONAL, PRUDENTIAL INVESTMENT PORTFOLIOS 2, FKA Dryden Core Investment Fund, on behalf of Prudential Core Short-Term Bond Fund, BAY AREA TOLL AUTHORITY, CALIFORNIA PUBLIC PLAINTIFFS, LINDA ZACHER, ELLEN GELBOIM, on behalf of herself and all others similarly situated, GARY FRANCIS, METZLER INVESTMENT GMBH, on behalf of itself and all others similarly situated, 303030 TRADING LLC, ATLANTIC TRADING USA, LLC, FTC FUTURES FUND SICAV, on behalf of themselves and all others similarly situated, NATHANIEL HAYNES, COUNTY OF SONOMA, THE SAN MATEO COUNTY JOINT POWERS FINANCING AUTHORITY, RICHMOND JOINT POWERS FINANCING AUTHORITY, SUCCESSOR AGENCY TO THE RICHMOND COMMUNITY REDEVELOPMENT AGENCY, RIVERSIDE PUBLIC FINANCING AUTHORITY, DAVID E. SUNDSTROM, in his official capacity as Treasurer of the county of Sonoma for and on behalf of the Sonoma County Treasury Pool Investment, EAST BAY MUNICIPAL UTILITY DISTRICT, REGENTS OF THE UNIVERSITY OF CALIFORNIA, Plaintiffs-Appellants, CARPENTERS PENSION FUND OF WEST VIRGINIA, CITY OF DANIA BEACH POLICE & FIREFIGHTERS' RETIREMENT SYSTEM, Individually and on behalf of all others similarly situated, RAVAN INVESTMENTS, LLC, RICHARD HERSHEY, JEFFREY LAYDON, on behalf of himself and all others similarly situated, ROBERTO E. CALLE GRACEY, AVP PROPERTIES, LLC, COMMUNITY BANK & TRUST, BERKSHIRE BANK, Individually and On Behalf of All Others Similarly Situated, ELIZABETH LIEBERMAN, on behalf of themselves and all other similarly situated, TODD AUGENBAUM, on behalf of themselves and all others similarly situated, 33-35 GREEN POND ROAD ASSOCIATES, LLC, on behalf of itself and all others similarly situated, COURTYARD AT AMWELL II, LLC, ANNIE BELL ADAMS, on behalf of herself and all others similarly situated, JILL COURT ASSOCIATES II, LLC, GREENWICH COMMONS II, LLC, DENNIS PAUL FOBES, on behalf of Case 17-1569, Document 480, 03/16/2018, 2259171, Page3 of 34 himself and all others similarly situated, LEIGH E. FOBES, on behalf of herself and all others similarly situated, MAIDENCREEK VENTURES II LP, RARITAN COMMONS, LLC, MARGARET LAMBERT, on behalf of herself and all others similarly situated, LAWRENCE W. GARDNER, on behalf of themselves and all others similarly situated, BETTY L. GUNTER, on behalf of herself and all others similarly situated, TEXAS COMPETITIVE ELECTRIC HOLDINGS COMPANY LLC, GOVERNMENT DEVELOPMENT BANK FOR PUERTO RICO, CARL A. PAYNE, individually, and on behalf of other members of the general public similarly situated, GUARANTY BANK AND TRUST COMPANY, Individually and on behalf of all others similarly situated, KENNETH W. COKER, individually, and on behalf of other members of the general public similarly situated, THE COUNTY OF MENDOCINO, COUNTY OF SAN MATEO, CITY OF RICHMOND, COUNTY OF SAN DIEGO, CITY OF RIVERSIDE, COUNTY OF SACRAMENTO, SAN DIEGO ASSOCIATION OF GOVERNMENTS, JOSEPH AMABILE, LOUIE AMABILE, individually & on behalf of Lue Trading, Inc., NORMAN BYSTER, MICHAEL CAHILL, RICHARD DEOGRACIAS, individually on behalf of RCD Trading, Inc., HEATHER M. EARLE, on behalf of themselves and all others similarly situated, HENRYK MALINOWSKI, on behalf of themselves and all others similarly situated, MARC FEDERIGHI, individually on behalf of MCO Trading, SCOTT FEDERIGHI, individually on behalf of Katsco, Inc., LINDA CARR, on behalf of themselves and all others similarly situated, ERIC FRIEDMAN, on behalf of themselves and all others similarly situated, ROBERT FURLONG, individually on behalf of XCOP, Inc., DAVID GOUGH, COUNTY OF RIVERSIDE, JERRY WEGLARZ, BRIAN HAGGERTY, individually on behalf of BJH Futures, Inc., DAVID KLUSENDORF, NATHAN WEGLARZ, on behalf of plaintiffs and a class, DIRECTORS FINANCIAL GROUP, individually and on behalf of all others similarly situated, RONALD KRUG, CHRISTOPHER LANG, SEIU PENSION PLANS MASTER TRUST, individually and on behalf of all others similarly situated, HIGHLANDER REALTY, LLC, JOHN MONCKTON, PHILIP OLSON, JEFFREY D. BUCKLEY, FEDERAL HOME LOAN MORTGAGE CORPORATION, BRETT PANKAU, DAVID VECCHIONE, individually on behalf of Vecchione & Associates, RANDALL WILLIAMS, JOHN HENDERSON, 303 PROPRIETARY TRADING LLC, MARGERY TELLER, CEMA JOINT VENTURE, NICHOLAS PESA, EDUARDO RESTANI, PRINCIPAL FUNDS, INC., PFI BOND & MORTGAGE SECURITIES FUND, PFI BOND MARKET INDEX FUND, PFI CORE PLUS BOND I FUND, PFI DIVERSIFIED REAL ASSET FUND, PFI EQUITY INCOME FUND, PFI GLOBAL DIVERSIFIED INCOME FUND, PFI GOVERNMENT & HIGH QUALITY BOND FUND, PFI HIGH YIELD FUND, PFI HIGH YIELD FUND I, PFI INCOME FUND, PFI INFLATION PROTECTION FUND, PFI SHORT-TERM INCOME FUND, PFI MONEY MARKET FUND, PFI PREFERRED SECURITIES FUND, PRINCIPAL VARIABLE CONTRACTS FUNDS, INC., PVC ASSET ALLOCATION ACCOUNT, PVC MONEY MARKET ACCOUNT, PVC BALANCED ACCOUNT, PVC BOND & MORTGAGE SECURITIES ACCOUNT, PVC EQUITY INCOME ACCOUNT, PVC GOVERNMENT & HIGH QUALITY BOND ACCOUNT, PVC INCOME ACCOUNT, PVC SHORT-TERM INCOME ACCOUNT, PRINCIPAL FINANCIAL GROUP, INC., PRINCIPAL FINANCIAL SERVICES, INC., PRINCIPAL LIFE INSURANCE COMPANY, PRINCIPAL CAPITAL INTEREST ONLY I, LLC, PRINCIPAL COMMERCIAL FUNDING, LLC, PRINCIPAL COMMERCIAL FUNDING II, Case 17-1569, Document 480, 03/16/2018, 2259171, Page4 of 34 LLC, PRINCIPAL REAL ESTATE INVESTORS, LLC, VITO SPILLONE, BRIAN MCCORMICK, MAXWELL VAN DE VELDE, Individually and on behalf of all others similarly situated, INDEPENDENCE TRADING, INC., INSULATORS AND ASBESTOS WORKERS LOCAL #14, Individually and on behalf of all others similarly situated, COURMONT & WAPNER ASSOCIATES, L.P., on behalf of itself and all others similarly situated, SALIX CAPITAL LTD., FTC CAPITAL GMBH, on behalf of themselves and all others similarly situated, CITY OF NEW BRITAIN FIREFIGHTERS' AND POLICE BENEFIT FUND, DIRECT ACTION PLAINTIFFS, FEDERAL NATIONAL MORTGAGE ASSOCIATION, TRIAXX PRIME CDO 2006-1, LTD., TRIAXX PRIME CDO 2006-2, LTD., TRIAXX PRIME CDO 2007-1, LTD., FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver, FRAN P. GOLDSLEGER, NATIONAL ASBESTOS WORKERS PENSION FUND, PENSION TRUST FOR OPERATING ENGINEERS, HAWAII ANNUITY TRUST FUND FOR OPERATING ENGINEERS, CEMENT MASONS' INTERNATIONAL ASSOCIATION EMPLOYEES' TRUST FUND, individually and on behalf of all others similarly situated, AXIOM INVESTMENT ADVISORS, LLC, AXIOM HFT LLC, AXIOM INVESTMENT ADVISORS HOLDINGS L.P., AXIOM INVESTMENT COMPANY, LLC, AXIOM INVESTMENT COMPANY HOLDINGS L.P., AXIOM FX INVESTMENT FUND, L.P., AXIOM FX INVESTMENT FUND II, L.P., AXIOM FX INVESTMENT 2X FUND, L.P., EPHRAIM F. GILDOR, GILDOR FAMILY ADVISORS L.P., GILDOR FAMILY COMPANY L.P., GILDOR MANAGEMENT, LLC, PRUDENTIAL CORE TAXABLE MONEY MARKET FUND, Plaintiffs, – v. – LLOYDS BANKING GROUP PLC, BANK OF AMERICA CORPORATION, THE ROYAL BANK OF SCOTLAND GROUP PLC, CITIBANK, N.A., CREDIT SUISSE GROUP AG, DEUTSCHE BANK AG, JPMORGAN CHASE & CO., THE NORINCHUKIN BANK, HBOS PLC, ROYAL BANK OF CANADA, HSBC BANK PLC, CITIGROUP INC., COOPERATIEVE RABOBANK U.A., FKA COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., JPMORGAN CHASE BANK, N.A., THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., BANK OF AMERICA, N.A., BARCLAYS BANK PLC, WESTDEUTSCHE IMMOBILIENBANK AG, PORTIGON AG, FKA WESTLB AG, HSBC HOLDINGS PLC, WESTLB AG, SOCIETE GENERALE, COOPERATIEVE CENTRALE RAIFFEISEN - BOERENLEENBANK B.A., CREDIT SUISSE INTERNATIONAL, CREDIT SUISSE (USA), INC., THE ROYAL BANK OF SCOTLAND PLC, CREDIT SUISSE AG, HSBC SECURITIES (USA) INC., HSBC BANK USA, N.A., HSBC FINANCE CORPORATION, BARCLAYS CAPITAL INC., HSBC USA, INC., THE HONG KONG AND SHANGHAI BANKING CORPORATION LTD., RBC CAPITAL MARKETS LLC, BANK OF AMERICA N.A., RABOBANK GROUP, UBS SECURITIES LLC, CITI SWAPCO INC., BBA ENTERPRISES, LTD., BBA LIBOR, LTD., BRITISH BANKERS' ASSOCIATION, MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, FKA BANC OF AMERICA SECURITIES, LLC, CITIGROUP FINANCIAL PRODUCTS, INC., J.P. MORGAN BANK DUBLIN PLC, FKA BEAR STEARNS BANK PLC, UBS LIMITED, CREDIT SUISSE GROUP INTERNATIONAL, UBS AG, Case 17-1569, Document 480, 03/16/2018, 2259171, Page5 of 34 Defendants-Appellees, CREDIT AGRICOLE S.A., SUMITOMO MITSUI BANKING CORPORATION, BNP PARIBAS S.A., RBS CITIZENS, N.A., incorrectly sued as othe Charter One Bank NA, RBS CITIZENS, N.A., CREDIT SUISSE GROUP, NA, CITIZENS BANK OF MASSACHUSETTS, Agent of RBS Citizens Bank, NA, BARCLAYS US FUNDING LLC, DEUTSCHE BANK FINANCIAL LLC, DOES 1 THROUGH 10, SOCIETE GENERALE CORPORATE & INVESTMENT BANKING, NATIONAL ASSOCIATION, STEPHANIE NAGEL, JOHN DOES #1-#5, NATIONAL COLLEGIATE STUDENT LOAN TRUST 2007-1, CHASE BANK USA, N.A., J.P. MORGAN CLEARING CORP., BANK OF AMERICA SECURITIES LLC, CENTRALE RAIFFEISEN-BERENLEENBANK B.A., UBS AG, ROYAL BANK OF SCOTLAND GROUP PLC, BANK OF NOVA SCOTIA, CREDIT SUISSE SECURITIES (USA) LLC, RBS GROUP, LLOYDS BANK PLC, FKA Lloyds Bank plc, CITIZENS BANK N.A., CREDIT SUISSE SECURITIES (USA) LLC, CITIGROUP GLOBAL MARKETS, INC., THE ROYAL BANK OF SCOTLAND PLC, LLOYDS BANK PLC, CITIGROUP FUNDING, INC., SOCIETE GENERALE S.A., BARCLAYS PLC, J.P. MORGAN SECURITIES LLC, FKA J.P. Morgan Securities Inc., DEUTSCHE BANK SECURITIES INCORPORATED, BANC OF AMERICA SECURITIES, LLC, RBS SECURITIES INC., FKA Greenwich Capital Markets, Inc., LLOYDS TSB BANK PLC, ICAP PLC, J.P. MORGAN MARKETS LTD., BANK OF AMERICA HOME LOANS, MERRILL LYNCH CAPITAL SERVICES, INC., CITIGROUP GLOBAL MARKETS LIMITED, MERRILL LYNCH & CO., INC., MERRILL LYNCH INTERNATIONAL BANK, LTD., BEAR STEARNS CAPITAL MARKETS, INC., BARCLAYS CAPITAL (CAYMAN) LIMITED, INSTITUTE OF INTERNATIONAL BANKERS, CLEARING HOUSE ASSOCIATION L.L.C., Defendants. KAREN L. MORRIS DAVID H. WEINSTEIN PATRICK F. MORRIS ROBERT S. KITCHENOFF R. MICHAEL LINDSEY WEINSTEIN KITCHENOFF & ASHER LLC MORRIS AND MORRIS LLC 100 South Broad Street, Suite 705 COUNSELORS AT LAW Philadelphia, Pennsylvania 19110 4023 Kennett Pike, #254 (215) 545-7200 Wilmington, Delaware 19807 (302) 426-0400 Attorneys for Plaintiffs-Appellants Ellen Gelboim and Linda Zacher Case 17-1569, Document 480, 03/16/2018, 2259171, Page6 of 34 TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... ii SUMMARY OF ARGUMENT .................................................................................1 ARGUMENT .............................................................................................................4 I. Defendants Misunderstand Lexmark And Its Role Here. ....................................4 II. Defendants Cannot Evade The Direct Causal Link Between Their Price Fixing And Plaintiffs' Injuries. ............................................................................6 A. Innocent Third-Party Decisions to Buy or Hold Financial LIBOR- Related Instruments Are Not "Intervening" Causes......................................6 B. Defendants' Conspiracy Proximately Caused Schwab's Injuries from Fixed-Rate Transactions. .............................................................................10 C. McCready Defeats Defendants' Standing Arguments. ...............................13 D. Defendants' Conjectural Offset Arguments Are Foreclosed. .....................15 E. Defendants Are Not Saved by Appeals to Disproportionate Liability. .......16 F. Defendants' Other Invocations of the AGC Factors Are Meritless.............19 III. Defendants' Only Argument Respecting Bonds Purchased Before Suppression Began Is Foreclosed. .....................................................................20 IV. Schwab's Cartwright Act Claim Survives No Matter What. ............................21 CONCLUSION ........................................................................................................23 i Case 17-1569, Document 480, 03/16/2018, 2259171, Page7 of 34 TABLE OF AUTHORITIES Cases Aryeh v. Canon Bus. Sols., Inc., 55 Cal. 4th 1185 (2013) .............................................................................. 21, 22 Associated Gen. Contractors v. Cal. State Council of Carpenters, 459 U.S. 519 (1983) .............................................................................................3 Blue Shield of Va. v. McCready, 457 U.S. 465 (1982) ................................................................................... passim Calderone Enters. Corp. v. United Artists Theatre Circuit, Inc., 454 F.2d 1292 (2d Cir.1971) ........................................................................ 6, 17 Charles Schwab Corp. v. Bank of Am. Corp., 883 F.3d 68 (2d Cir. 2018) ............................................................. 11, 12, 15, 19 County of San Mateo v. CSL Ltd., 2014 WL 4100602 (N.D. Cal. Aug. 20, 2014) ..................................................22 Crimpers Promotions, Inc. v. Home Box Office, Inc., 724 F.2d 290 (2d. Cir. 1983) .............................................................. 3, 5, 13, 17 Exxon Co. v. Sofec, 517 U.S. 830 (1996) .............................................................................................7 Gelboim v. Bank of Am. Corp., 823 F.3d 759 (2d Cir. 2016) ...................................................................... passim In re Aluminum Warehousing Antitrust Litig., 833 F.3d 151 (2d Cir. 2016) ..............................................................................13 In re Capacitors Antitrust Litig., 106 F. Supp. 3d 1051 (N.D. Cal. 2015) .............................................................22 In re Cipro Cases I & II, 61 Cal. 4th 116 (2015) ................................................................................ 21, 22 In re LIBOR-Based Fin. Instruments Antitrust Litig., 2015 WL 6243526 (S.D.N.Y. Oct. 20, 2015) ...................................................................................10 In re LIBOR-Based Fin. Instruments Antitrust Litig., 2018 WL 1229761 (S.D.N.Y. Feb. 28, 2018) .....................................................................................9 In re Lithium Ion Batteries Antitrust Litig., 2014 WL 4955377 (N.D. Cal. Oct. 2, 2014) .....................................................22 ii Case 17-1569, Document 480, 03/16/2018, 2259171, Page8 of 34 Knevelbaard Dairies v. Kraft Foods, Inc., 232 F.3d 979 (9th Cir. 2000) .............................................................................21 Lexmark Int'l v. Static Control Components, Inc., 134 S. Ct. 1377 (2014) ............................................................................... passim Loeb Indus. v. Sumitomo Corp., 306 F.3d 469 (7th Cir. 2002) ............................................................ 2, 14, 15, 16 Los Gatos Mercantile, Inc. v. E.I. DuPont De Nemours & Co., 2015 WL 4755335 (N.D. Cal. Aug. 11, 2015) ........................................... 21, 22 Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985) ...........................................................................................17 Osterweil v. Bartlett, 706 F.3d 139 (2d Cir. 2013) ..............................................................................23 Reiter v. Sonotone Corp., 442 U.S. 330 (1979) ...........................................................................................17 Samsung Elecs. Co. v. Panasonic Corp., 747 F.3d 1199 (9th Cir. 2014) ...........................................................................21 Sanner v. Bd. of Trade, 62 F.3d 918 (7th Cir. 1995) ....................................................................... passim Todd v. Exxon Corp., 275 F.3d 191 (2d Cir. 2001) ..............................................................................13 Vinci v. Waste Mgmt., Inc., 36 Cal. App. 4th 1811 (1995) ............................................................................22 Statutes 15 U.S.C. §15 (Clayton Act §4)...............................................................................19 Other Authorities Phillip E. Areeda & Herbert Hovenkamp, ANTITRUST LAW (4th ed. 2014)............14 Cal. Anti. & Unfair Comp. L. § 14.02, at 7, n.58 (2017) ........................................22 Darrell Duffie & Jeremy C. Stein, Reforming LIBOR and Other Financial- Market Benchmarks (Sept. 19, 2014), https://ssrn.com/abstract=2506792.......10 Fed. Reserve Bank of N.Y. Staff Report No. 667 (Mar. 2014) ...............................10 Market Participants Group on Reforming Interest Rate Benchmarks, Final Report (Mar. 2014), http://www.fsb.org/wp- content/uploads/r_140722b.pdf .........................................................................18 iii Case 17-1569, Document 480, 03/16/2018, 2259171, Page9 of 34 SUMMARY OF ARGUMENT The district court held that plaintiffs who transacted with the defendant banks have antitrust standing, while those who didn't don't. SPA42-43. Appellants' brief explained why such a "privity" rule is inconsistent with binding caselaw—privity is often sufficient, but not necessary, for antitrust standing in price-fixing cases. See PSBr. 7. Defendants agree, see DSBr. 21-22, and so make no effort to defend a privity rule as such. They assert instead that the court's privity-based rule was just an "administrable" way of deciding proximate cause—"a straightforward applica- tion of the first efficient-enforcer factor." See id. This substantially refines the par- ties' dispute. With privity aside, the disagreement centers instead on whether "causation" is satisfied. See Gelboim v. Bank of Am. Corp., 823 F.3d 759, 778 (2d Cir. 2016). It surely is: When defendants suppressed LIBOR, they directly and immediately harmed plaintiffs whose bonds either expressly incorporated LIBOR (floating-rate bonds) or allegedly moved in lockstep with it (fixed-rate bonds).1 The Seventh Cir- cuit has already squarely held as much, see Loeb Indus. v. Sumitomo Corp., 306 F.3d 1 Bondholders claim defendants manipulated LIBOR to reduce their funding costs in the market for floating-rate bonds. Schwab's similar claims also include fixed-rate instruments. Bondholders do not hold fixed-rate instruments, and do not join Schwab's arguments concerning them, including Part I.B below. See also PSBr. 23-24 (floating-rate); id. 27-28 (fixed-rate). For each plaintiff, this Court must focus on the relevant market framed by that plaintiff's complaint. See Blue Shield of Va. v. McCready, 457 U.S. 465, 480 (1982). 1 Case 17-1569, Document 480, 03/16/2018, 2259171, Page10 of 34 469 (7th Cir. 2002); Sanner v. Bd. of Trade, 62 F.3d 918 (7th Cir. 1995), so holding otherwise would precipitate a precise circuit split. And, in fact, this Court has al- ready indicated that, by their terms, neither of the first two efficient-enforcer factors supports a distinction based on whether a plaintiff transacted with defendants or not. See Gelboim, 823 F.3d at 778-79. Not even the district court endorsed defendants' other, meritless arguments. For example, defendants submit (at 40-42) that government settlements about ma- nipulation of other LIBORs somehow risk "duplicate" recoveries, citing no example of any court accepting such an argument. They also submit (again, without citation, DSBr. 35-38) that plaintiffs' injuries are speculative because they may have been washed out by offsetting movements in other contract terms—an argument this Court has now repeatedly rejected as procedurally inappropriate. And they attempt to resurrect an antitrust-injury argument (at 43-45) about bonds purchased before their suppression started—bonds for which their causation argument is most unten- able—even though that argument is foreclosed by Gelboim. Defendants' antitrust-standing challenge thus rapidly boils down to the sug- gestion that they will face "damages disproportionate to wrongdoing" if they are required to compensate non-privity victims. See, e.g., DSBr. 3, 13, 33, 34. This argument suffers from several problems, including the serious factual shortcoming that the vast majority of damages in the LIBOR MDL actions are associated with 2 Case 17-1569, Document 480, 03/16/2018, 2259171, Page11 of 34 direct transactions involving "swaps" or other "derivatives"—claims these appel- lants do not present. But more importantly, this "disproportionate damages" concern is not one of the antitrust-standing factors from Associated General Contractors v. California State Council of Carpenters (AGC), 459 U.S. 519 (1983); it comes from a pre-AGC decision whose language this Court has cautioned the courts to ignore, see Crimpers Promotions, Inc. v. Home Box Office, Inc., 724 F.2d 290, 293 (2d. Cir. 1983) (Friendly, J.). And it is just the kind of judicially imposed "prudential" con- cern the Supreme Court recently rejected in Lexmark International v. Static Control Components, Inc., 134 S. Ct. 1377 (2014) as a basis for dismissing statutory causes of action—while characterizing AGC's factors as simply an inquiry into proximate cause. At bottom, defendants are not trying to defend a distinction that sounds in causation—a distinction this Court already cast doubt upon—but instead to smuggle in extraneous policy concerns the Supreme Court has foreclosed. PSBr. 20-21, 33. That effort should fail and this Court should reverse so that discovery might finally be taken on the issues Gelboim identified. 3 Case 17-1569, Document 480, 03/16/2018, 2259171, Page12 of 34 ARGUMENT I. Defendants Misunderstand Lexmark And Its Role Here. Defendants begin by straw-manning plaintiffs' argument about Lexmark as an effort to "throw[] out the efficient-enforcer analysis in favor of a test based on fore- seeability alone." DSBr. 17. Plaintiffs' point is nothing so radical. The opening brief merely emphasized that Lexmark directed lower courts to view AGC's factors as a test for proximate cause (not "foreseeability alone"), and thus warned them against treating factors like difficulty calculating damages or policy concerns like disproportionate liability as "independent bas[e]s for denying standing where it is adequately alleged that a defendant's conduct has proximately injured an interest of the plaintiff's that the statute protects." Lexmark, 134 S. Ct. at 1392 (court's empha- sis); see PSBr. 20-21, 37. Defendants acknowledge (at 24-25) that the two core aspects of proximate cause are "foreseeability" and "direct injury," and the opening brief argues both at length—indeed, its first argument is headed: "Plaintiffs neces- sarily have antitrust standing because of the direct causal relationship between de- fendants' antitrust violations and plaintiffs' antitrust injuries." PSBr. 6 (emphasis added). Nothing about plaintiffs' argument depends on collapsing (or even tries to collapse) the AGC factors into "foreseeability alone." Lexmark nonetheless illuminates the proper application of AGC's factors here by sternly clarifying that AGC's factors are appropriate considerations only insofar 4 Case 17-1569, Document 480, 03/16/2018, 2259171, Page13 of 34 as they help courts discern the existence of proximate cause. It thus criticizes their use as "independent" criteria in a free-form balancing test. 134 S. Ct. at 1392. And it repeatedly characterizes AGC as a case concerned with proximate cause, not a policy-driven inquiry about which plaintiffs are the most efficient enforcers or the like. Id. at 1386, 1390, 1391-92. Defendants obscure Lexmark's plain import by incorrectly suggesting that its "discussion of Associated General Contractors cited the list of" efficient-enforcer factors with apparent approval, DSBr. 18 (emphasis added) (citing Lexmark, 134 S. Ct. at 1386), while ignoring what it said about them. Defendants point to an unadorned citation sentence in Lexmark attached to the following text: "[In AGC], [w]e held that the statute limited the class to plaintiffs whose injuries were proxi- mately caused by a defendant's antitrust violations." Id. at 1386 (emphasis added). That's plaintiffs' point—the AGC factors may be used to analyze proximate cause, not as independent inquiries in some sort of prudential balancing test. Id. at 1392. Defendants similarly misconstrue Judge Friendly's decision in Crimpers. Crimpers' core instruction was that courts must begin with the proximate-cause analysis in AGC and McCready in assessing antitrust standing—"without concern whether the results are consistent with language in earlier Second Circuit cases." Crimpers, 724 F.2d at 293 (emphasis added). But the concern defendants repeatedly invoke about "damages disproportionate to wrongdoing" is found nowhere in AGC's 5 Case 17-1569, Document 480, 03/16/2018, 2259171, Page14 of 34 factors, and in fact stems from "language in [an] earlier Second Circuit case[]"—the very case Judge Friendly said courts in this Circuit should no longer indulge with "extensive parsing." See DSBr. 33 (quoting Calderone Enters. Corp. v. United Art- ists Theatre Circuit, Inc., 454 F.2d 1292 (2d Cir.1971)). Defendants thus have the import of Crimpers precisely backwards: Nothing in this Court's or the Supreme Court's jurisprudence embraces using AGC's factors to test for anything more than antitrust injury (already established here) and proximate cause. And, as explained below, this correct understanding of AGC's test is fatal to defendants' argument, for reasons this Court has already recognized. II. Defendants Cannot Evade The Direct Causal Link Between Their Price Fixing And Plaintiffs' Injuries. A. Innocent Third-Party Decisions to Buy or Hold Financial LIBOR-Related Instruments Are Not "Intervening" Causes. In Gelboim, this Court observed—with respect to the first two, causation-re- lated efficient-enforcer factors—that (1) "there appears to be no difference in the injury alleged by those who dealt in LIBOR-denominated instruments, whether their transactions were conducted directly or indirectly with the Banks," and (2) "remote victims (who acquired LIBOR-based instruments from any of thousands of non-de- fendant banks) would be injured to the same extent and in the same way as direct customers of the Banks." 823 F.3d at 779. Defendants nonetheless seek to defend the line the district court drew under AGC between those whose "transactions were 6 Case 17-1569, Document 480, 03/16/2018, 2259171, Page15 of 34 conducted directly [and] indirectly with the Banks." To that end, they characterize plaintiffs' innocent decisions to buy or hold LIBOR-linked bonds during the period of defendants (secret) LIBOR suppression as "intervening" causes of plaintiffs' in- juries that break the direct chain between defendants' violation and plaintiffs' inju- ries. DSBr. 20. There are several problems with this argument. First and most important, it is logically backwards to treat these previous de- cisions as "intervening" causes. As the opening brief explained (at 30-31), an "in- tervening" cause is one that happens in between defendants' wrongdoing and plain- tiffs' injuries. The Supreme Court has said as much. See Exxon Co. v. Sofec, 517 U.S. 830, 837 (1996) ("The doctrine of superseding cause is ... applied where the defendant's [wrongdoing] substantially contributed to the plaintiff's injury, but the injury was actually brought about by a later cause of independent origin[.]"). Yet defendants offer no response on this point, which is sufficient to reverse. Plaintiffs received less interest on bonds they were already holding when defendants' LIBOR suppression drove down their LIBOR-based interest rates. Nothing intervened. Indeed, this is a paradigmatic example of uninterrupted, proximate cause. The injuries of floating-rate bondholders occurred by operation of the arithmetic formula in their bond contracts; there were zero intervening steps between defendants' sup- pression and plaintiffs' reduced interest payments. JA505. If, for example, defend- ants suppressed LIBOR by 20 points on a bond's interest-rate reset date, that period's 7 Case 17-1569, Document 480, 03/16/2018, 2259171, Page16 of 34 interest payment was suppressed in exactly that amount. Nothing else could even theoretically "intervene" to affect that suppression, JA507—not the spread to LI- BOR, which was set at issuance and remained fixed; not issuers' already-baked-in decisions on other matters such as credit risk, maturity, or desire to attract investors (DSBr. Br. 22, 36, 37); and not the issue or purchase price of the bond. Those deci- sions were in the past, not the middle of the causal chain. Defendants' theory also impermissibly converts a plaintiff's innocent decision to acquire or hold a (secretly) price-fixed product into the "intervening" cause of the plaintiff's own antitrust injury. This would swallow antitrust law, and it represents the exact argument the Supreme Court rejected in McCready. There, the defendants argued that the third-party employer's decision to retain the insurance plan after it stopped covering psychologists—and McCready's decision to continue seeing a psy- chologist rather than a psychiatrist—were the more-proximate causes of her injuries. The Supreme Court disagreed, holding that a plaintiff may recover even if, by choice, she "bore [defendants'] sanction in the form of an increase in the net cost of her [product]." See 457 U.S. at 483; see also id. at 480 & n.17; PSBr. 31-32. That is appellants' precise argument here; indeed, this case is even easier because, unlike in McCready, no plaintiff could have known that LIBOR was being manipulated when they "decided" to hold LIBOR-based bonds. 8 Case 17-1569, Document 480, 03/16/2018, 2259171, Page17 of 34 Relatedly, defendants mislead in pushing the incorrect impression (at 22) that appellants' chose to use LIBOR and adjusted other bond terms through bespoke ne- gotiation over each bond. As the district court has repeatedly recognized, plaintiffs' bonds were not negotiated. See SPA49-55; In re LIBOR-Based Fin. Instruments Antitrust Litig., 2018 WL 1229761, at *110 (S.D.N.Y. Feb. 28, 2018). These off- the-shelf products contractually incorporate LIBOR to supply a floating-rate term; they cannot, do not, and would have no reason to rejigger every other aspect of the bond each day to account for the (again, secret) effects of defendants' suppression. These errors underlie defendants' fundamental, misleading suggestion (at 23) that the choice by plaintiffs and third-party issuers to incorporate LIBOR into their contracts had "nothing to do with defendants." LIBOR is the predominant bench- mark for the price of borrowing money, which is why, as Schwab alleges, rates on fixed-rate, short-term bonds will—all else equal—follow LIBOR in formulaic, lock- step fashion. PSBr. 28. Put otherwise, the "myriad of considerations and variables" defendants point to may affect how issuers and buyers decide other loan terms, but they have no effect on what the LIBOR term in a bond supplies—namely, a proxy for the price of borrowing at low risk on any given day. For any given mix of other terms, the overall return will thus necessarily be lower on a LIBOR-based bond if defendants are suppressing that benchmark rate. 9 Case 17-1569, Document 480, 03/16/2018, 2259171, Page18 of 34 This argument likewise ignores how hard defendants worked to make LIBOR the "world's most important number." Defendants invented LIBOR for use in float- ing-rate debt, cultivated it through the BBA, and built a massive market for USD- LIBOR-based swaps that cemented LIBOR's role as the overwhelmingly predomi- nant benchmark.2 Accordingly, even the district court recognized that "network ef- fects … turned LIBOR into the benchmark of choice," and that floating-rate bond investors thus "may have faced real difficulty or expense … if they had refused to deal in LIBOR-based securities." In re LIBOR-Based Fin. Instruments Antitrust Litig., 2015 WL 6243526, at *67 (S.D.N.Y. Oct. 20, 2015). Defendants further ig- nore how they kept their LIBOR-jacking secret, even embarking on a "charm offen- sive" designed to sustain belief in LIBOR's integrity. These facts prevent treating third-parties' decisions to "hew to LIBOR" (DSBr. 31) as somehow "independent" of defendants' behavior. B. Defendants' Conspiracy Proximately Caused Schwab's Injuries from Fixed-Rate Transactions. The secrecy of defendants' LIBOR suppression likewise undermines their de- nial of responsibility for Schwab's antitrust injuries on fixed-rate instruments. Con- trary to defendants' suggestion that plaintiffs "have not alleged a 'lockstep' 2 See Fed. Reserve Bank of N.Y. Staff Report No. 667, at 1 (Mar. 2014); Darrell Duffie & Jeremy C. Stein, Reforming LIBOR and Other Financial-Market Bench- marks 12, 24 (Sept. 19, 2014), https://ssrn.com/abstract=2506792). 10 Case 17-1569, Document 480, 03/16/2018, 2259171, Page19 of 34 relationship" (at 32-33), Schwab submitted detailed affidavits explaining that the whole industry looks formulaically to LIBOR in pricing short-term, fixed-rate debt, and why. See, e.g., JA8373 ("[T]he standard business practice of the money market industry" is for "buyers [to] compare the spread-to-LIBOR of a fixed-rate instrument against an issuer's creditworthiness and other market dynamics, essentially taking LIBOR as a given component of the offered rate") (emphasis added); see also JA8219-20 (¶¶193-94). This is precisely the kind of "lockstep" allegation the Sev- enth Circuit held sufficient at the motion-to-dismiss stage in Sanner, 62 F.3d at 918. And, critically, the clandestine nature of defendants' conspiracy made it impossible for Schwab or anyone else to account for LIBOR's suppression when incorporating it "as a given" into their formula for pricing these instruments. Defendants argue in a Rule 28(j) letter that Charles Schwab Corp. v. Bank of America Corp., 883 F.3d 68 (2d Cir. 2018) undermines Schwab's antitrust standing with respect to non-privity fixed-rate claims, but it does the opposite. Schwab re- jected certain state-law fraud claims on fixed-rate instruments under a heightened California-law mental-state standard for those particular claims. Id. at 90-92 (hold- ing that "reason to expect" standard "bears more similarity to actual intent to cause third party reliance than it does to foreseeability"). In so ruling, however, the Court effectively recognized that Schwab had pleaded that its injury was both direct and foreseeable. 11 Case 17-1569, Document 480, 03/16/2018, 2259171, Page20 of 34 First, Schwab recognized that Schwab's allegations "go beyond the bare as- sertion that Defendants' fraudulent LIBOR submissions were embedded in the price of fixed-rate instruments," id. at 91 (emphasis added), acknowledging that Schwab pleaded a market-wide price effect and Schwab's individual reliance. An injury "embedded in the price" is direct, particularly in the price-fixing context, where pay- ing or receiving the fixed price is the archetypical antitrust injury. Gelboim, 823 F.3d at 772-73. That Schwab was also able to plead its individual reliance only makes direct causation clearer. Second, Schwab clearly acknowledged that Schwab's fixed-rate injuries were foreseeable, finding that Schwab had plausibly pleaded "mere foreseeability" on a claim that required a higher mental state. See supra pp.11-12. Notably, unlike the proximate-cause analysis for fraud claims, antitrust standing "is not a question of the specific intent of the conspirators," McCready, 457 U.S. at 479; direct injuries that are "clearly foreseeable" satisfy the antitrust requirement, particularly when they occur in the very market defendants manipulated to their benefit, as that market is defined in the plaintiff's complaint. Id. at 479-80. And that's what happened here. According to Schwab—whose allegations regarding the lockstep relationship between LIBOR and prices for fixed-rate instru- ments must be accepted at this stage, Sanner, 62 F.3d at 918; Schwab, 883 F.3d at 81—defendants manipulated LIBOR to drive down their borrowing costs in the 12 Case 17-1569, Document 480, 03/16/2018, 2259171, Page21 of 34 market for short-term debt, in which Schwab's money market funds buy both LI- BOR-based and short-term bonds. See, e.g., JA8721-23. Schwab's injuries on those instruments followed inexorably from LIBOR's suppression. At a minimum, both market definition and the causal connection between defendants' manipulations and Schwab's injuries are intensely factual issues irresolvable against plaintiffs at the motion-to-dismiss stage. See Todd v. Exxon Corp., 275 F.3d 191, 199 (2d Cir. 2001) ("market definition is a deeply fact-intensive inquiry"). In the nearly seven years since it filed its first LIBOR case, Schwab has received no discovery at all. As this Court recognized in Gelboim, resolving issues like these is just what discovery is for. C. McCready Defeats Defendants' Standing Arguments. 1. Defendants' effort to distinguish McCready fails to join issue on the operative point. First, their contention that McCready has "no bearing" here because it is only about antitrust injury is a non-starter—this Court has recognized that McCready also concerned directness and proximate cause. See In re Aluminum Warehousing Antitrust Litig., 833 F.3d 151, 159 (2d Cir. 2016); Crimpers, 724 F.2d at 296; see also McCready, 457 U.S. at 478. The leading treatise explains that McCready "was accorded standing" because, among other things, "the result of the alleged antitrust conspiracy would be higher prices in the very market in which McCready was a purchaser," making her "both the ultimate and immediate victim 13 Case 17-1569, Document 480, 03/16/2018, 2259171, Page22 of 34 of the conspiracy." 2A Phillip E. Areeda & Herbert Hovenkamp, ANTITRUST LAW ¶339f (4th ed. 2014) (emphasis added). That's this case. Relatedly, defendants point to the wrong part of McCready in arguing that a plaintiff's injury must be "inextricably intertwined" with the defendants' scheme. That is a holding about antitrust injury, see 457 U.S. at 481-83, which this Court already found present in Gelboim. Under a separate heading, McCready also "quickly disposed" of the conspirators' argument that McCready's injury was "too 'incidental' … and 'remote'" because, among other things, a third-party inde- pendently decided to retain the conspiratorially manipulated insurance policy. 457 U.S. at 478-81 & n.17 (heading 1). This is the holding from McCready that dooms defendants, and which they leave unanswered. 2. Defendants also fail to distinguish the Seventh Circuit's leading bench- mark-manipulation cases—Loeb and Sanner—mischaracterizing them as limited to buyers of "physical commodities." DSBr. 31-32. While defendants cite these cases for their literal facts, their theorization of them contains no citations at all, because Loeb and Sanner say nothing like what defendants wish. Instead, Judge Wood's summary of Loeb's holding points to the very facts that define plaintiffs' claims here: In sum, …. [t]he contract price [plaintiff] paid its suppliers for copper was directly and explicitly based on the Comex monthly settlement price, and therefore the defendants' manipulations directly and 14 Case 17-1569, Document 480, 03/16/2018, 2259171, Page23 of 34 predictably had an impact on that price. … For these reasons, [plaintiff] has established the directness element of AGC. Loeb, 306 F.3d at 489. Sanner's direct-causation holding—based on allegations of "lockstep" causa- tion, 62 F.3d at 918—is even more on point because of the matching Rule 12(b)(6) posture. Defendants' sole response (at 32-33) is that plaintiffs "have not alleged a lockstep relationship in this case"—an argument immediately belied by defendants' own very next sentence conceding the tautology that "the LIBOR term in a floating- rate bond would reflect LIBOR." It is impossible to imagine a more "lockstep" causal chain than that. And as noted (supra pp.11, 13 & PSBr. 29-30), Schwab's allegations regarding the lockstep relationship between LIBOR and fixed-rate in- struments fit hand-in-glove with Sanner as well. D. Defendants' Conjectural Offset Arguments Are Foreclosed. Defendants repeatedly try to bolster their argument that proximate cause is absent by theorizing that third parties would have offset any LIBOR manipulation by adjusting other aspects of their instruments. This argument fails on the facts and law. On the law, defendants' argument is now foreclosed by Schwab, where this Court rejected defendants' same suggestion that LIBOR manipulation would be off- set by changes to other loan terms was procedurally premature. See 883 F.3d at 92- 94 (reversing Rule 12(b)(6) dismissal based on "'common economic experience'"). 15 Case 17-1569, Document 480, 03/16/2018, 2259171, Page24 of 34 Defendants' five-page, citation-free theorizing and references to "economic logic" are thus misdirected; they are for the proof stage and constitutional factfinder. See Gelboim, 823 F.3d at 771, 782-83 ("net impact of a tainted LIBOR in the credit market is an issue … for the proof stage"). On the facts, defendants' argument ignores the mechanism of plaintiffs' in- jury. Floating-rate bondholders (obviously) got less interest because of LIBOR sup- pression, and that gap is at least as easy to calculate here as in any complex antitrust dispute. And when Schwab purchased short-term, fixed-rate debt, it accepted lower rates of return—in lockstep with LIBOR's suppression—because defendants were holding down that borrowing-cost benchmark—one defendants knew was followed formulaically in this market. Because LIBOR's manipulation was secret, any changes to other terms in either kind of instrument would have reflected other con- cerns. See Loeb, 306 F.3d at 488 (noting that "because of the success of the defend- ants' conspiracy, [parties] were never aware of the artificial Comex inflation" and so "believed that Comex prices [would] accurately reflect market conditions"). And, notably, this argument applies equally to the privity claims for which antitrust stand- ing is uncontested—explaining why the district court rejected it. See SPA52. E. Defendants Are Not Saved by Appeals to Disproportionate Liability. Perhaps because their causation arguments are illogical, defendants smuggle in other "reason[s] courts have been reluctant to permit claims by" victims like 16 Case 17-1569, Document 480, 03/16/2018, 2259171, Page25 of 34 appellants, quoting caselaw this Court has expressly overruled. DSBr. 33 (quoting Calderone); see id. 22-23, 29-33, 34-38. Lexmark forecloses reliance on this kind of purely prudential inquiry to limit a congressionally granted cause of action, par- ticularly because it appears nowhere in AGC's factors. See supra pp.4-5. Yet de- fendants' argument lacks force here for two further reasons as well. First, defendants' policy-driven argument gets Congress's policy choice back- wards. In case after case—beginning with McCready's abrogation of Calderone, see supra pp.5-6—the Supreme Court has explained that the primary policy of §4 is broad redress for victims, see PSBr. 8-9, 32 (collecting cases), while the enforcement purpose is "incidental." Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 635 (1985). This Court has likewise held that redress is not limited to disgorgement of defendants' ill-gotten gains. See Crimpers, 724 F.2d at 297. De- fendants have no response to these cases; they simply emphasize different policy- driven language from different (overruled) cases. See DSBr. 33. Defendants' dis- pute is for Congress, not the courts. See, e.g., Reiter v. Sonotone Corp., 442 U.S. 330, 344 (1979). Moreover, while Gelboim's dictum flagged a concern regarding dispropor- tionate liability, it was directed to other instruments. Gelboim worried that defend- ants might be bankrupted were they required "to pay treble damages to every plain- tiff who ended up on the wrong side of an independent LIBOR-denominated 17 Case 17-1569, Document 480, 03/16/2018, 2259171, Page26 of 34 derivative swap"; the concern was extending liability to the "myriad markets where derivative instruments have proliferated." 823 F.3d at 779 (emphasis added). No- tably, the LIBOR-based swap market, for which the district court found antitrust standing, is orders of magnitude larger than the LIBOR-based floating-rate bond market.3 MDL settlements announced to date reflect this relationship, undermining any claim of incipient bankruptcy—other than as a scare tactic to avoid recompense.4 Further, while derivative instruments are derivative and so one step removed from the market defendants intentionally manipulated to reduce their funding costs, plaintiffs' bonds actually comprise the very funding market defendants manipulated for their own benefit.5 So while defendants say the district court "heeded th[e] warn- ing" of Gelboim, it actually did the opposite. 3 See Market Participants Group on Reforming Interest Rate Benchmarks, Final Report 308 (Mar. 2014), http://www.fsb.org/wp-content/uploads/r_140722b.pdf. 4 Bondholder settlements are less than 10% of the total OTC and Bondholder settlement amounts announced to date. 5 The "concession" defendants' repeatedly trot out (at 9, 11, 19) was, in context, just an illustration of this important limiting principle. As counsel explained, the proximate-cause problem would (of course) be more serious if plaintiffs asserted injuries throughout the entire "worldwide market for money" rather than the market for the very type of instrument defendants sold to their benefit. See LIBOR VI Arg. Tr. (ECF-1642) at 53-54. Likewise if they asserted claims regarding individually negotiated instruments—like one-off loans, id. at 53—rather than pre-packaged bonds, supra p.8. 18 Case 17-1569, Document 480, 03/16/2018, 2259171, Page27 of 34 F. Defendants' Other Invocations of the AGC Factors Are Meritless. Given plaintiffs' ample allegations of proximate cause—which Lexmark makes clear is the bottom line of AGC's test—defendants' appeals to the other AGC factors are easily rejected. 1. As discussed supra at pp.15-16, defendants' factually intensive "spec- ulative damages" argument has been rejected as premature by both this Court in Gelboim and the district court, and is now squarely foreclosed by Schwab. 2. Defendants also posit (at 34-40) that there is a risk of duplicate recovery from government settlements. They admit, however, that none of those settlements involved the conspiracy to suppress USD-LIBOR pleaded here. No do they cite a single case treating the possibility of government enforcement as a reason to deny plaintiffs standing under §4. That makes sense: The possibility of government en- forcement is present in every meritorious case, so defendants' argument ultimately contests the very idea of the private right of action Congress enacted. 3. Recognizing this Court's indication that the "more direct victims" fac- tor does not favor a privity-based distinction, see Gelboim, 823 F.3d at 779, defend- ants ignore it, arguing only that appellants are "inferior" enforcers for reasons al- ready discussed. See DSBr. 42-43. The Court should take this for what it is: a con- cession that bond claimants here and those granted standing below are consumers in the same debt market for the same debt instruments, injured by defendants' 19 Case 17-1569, Document 480, 03/16/2018, 2259171, Page28 of 34 intentional conduct in exactly the same way. Indeed, defendants' counsel has con- ceded that "a bond offered by, say, Bank of America …. will be no differen[t] in terms of the bond market, how the bond market approaches that than there would be if it was GE Capital." Gelboim, Nov. 13, 2015 Arg. Tr. 54. III. Defendants' Only Argument Respecting Bonds Purchased Before Suppression Began Is Foreclosed. Because their intervening-cause argument is uniquely untenable regarding bonds purchased before LIBOR suppression began, defendants seek to reanimate their dead "antitrust-injury" argument for them. But, as the district court recognized, this argument is foreclosed by Gelboim, 823 F.3d at 772-77, which already held that appellants suffered antitrust injury as price-fixing victims. See SPA74 ("Under the Second Circuit's explanation," the alleged conspiracy "could have caused antitrust injury with respect to instruments purchased prior to but held into the suppression period[.]"). In any event, Gelboim's result is law of the case in the strongest possible sense. Defendants' argument is predicated on a Ninth Circuit case from 1987, see DSBr. 44, and they provide no law-of-the-case excuse for raising it only now. De- fendants already pressed this point repeatedly at the Gelboim argument, and lost. See, e.g., Tr. 42:1-5, 55:11-16, 62:11-18, 73:14-18. They are not allowed to try again. 20 Case 17-1569, Document 480, 03/16/2018, 2259171, Page29 of 34 IV. Schwab's Cartwright Act Claim Survives No Matter What. Defendants obstinately refuse to recognize the California Supreme Court's holding that the Cartwright Act "is broader in range and deeper in reach" than federal antitrust law, In re Cipro Cases I & II, 61 Cal. 4th 116, 160 (2015), making the latter "at most instructive, not conclusive, when construing the Cartwright Act." Aryeh v. Canon Bus. Sols., Inc., 55 Cal. 4th 1185, 1195 (2013). They point instead to twenty- year-old decisions from a California intermediate court and the Ninth Circuit, both of which have been disavowed by subsequent or superior courts. This Court should not sanction defendants' inappropriate effort to circumvent state-court authority over state law. Knevelbaard Dairies v. Kraft Foods, Inc., 232 F.3d 979 (9th Cir. 2000), on which defendants rely, "simply applied AGC to the Cartwright Act without discuss- ing the reasons for doing so," and "gives no indication what the California Supreme Court would do." Los Gatos Mercantile, Inc. v. E.I. DuPont De Nemours & Co., 2015 WL 4755335, at *19 n.10 (N.D. Cal. Aug. 11, 2015). Indeed, the Ninth Circuit recently observed, citing Aryeh, that "a holding that the interpretation of California's antitrust statute was coextensive with the Sherman Act ... is no longer the law in California." Samsung Elecs. Co. v. Panasonic Corp., 747 F.3d 1199, 1205 n.4 (9th Cir. 2014) (emphasis added). Accordingly, all four California district courts to con- sider the question in light of Aryeh have rejected AGC's application to Cartwright 21 Case 17-1569, Document 480, 03/16/2018, 2259171, Page30 of 34 Act claims, one while reversing itself in light of Aryeh, see Los Gatos, 2015 WL 4755335, at *19 n.10, and one in the even-broader context of umbrella claims. See County of San Mateo v. CSL Ltd., 2014 WL 4100602, at *6 (N.D. Cal. Aug. 20, 2014); see also In re Capacitors Antitrust Litig., 106 F. Supp. 3d 1051, 1073 (N.D. Cal. 2015); In re Lithium Ion Batteries Antitrust Litig., 2014 WL 4955377, at *11 (N.D. Cal. Oct. 2, 2014) (similar). As for Vinci v. Waste Management, Inc., 36 Cal. App. 4th 1811 (1995), which defendants also cite, recent decisions have likewise recognized that, based on Aryeh and Cipro, the "California Supreme Court would not find the rationale set forth in Vinci persuasive and would not apply AGC." Los Gatos, 2015 WL 4755335, at *19 n.10. And the California Attorney General "has filed several amicus briefs … setting forth its views that plaintiffs under the Cartwright Act have broad standing which extends to indirect purchasers." Cal. Anti. & Unfair Comp. L. § 14.02, at 7, n.58 (2017). Defendants nonetheless echo Vinci and say the Clayton and Cartwright Acts should be interpreted in parallel because they have similar text. But this is the pre- cise rationale the California Supreme Court rejected in Aryeh. See 55 Cal. 4th at 1195 ("[T]he Cartwright Act was modeled not on federal antitrust statutes but in- stead on statutes enacted by California's sister states."). The short shrift defendants give to California's highest court is evident. 22 Case 17-1569, Document 480, 03/16/2018, 2259171, Page31 of 34 Because the post-Aryeh authority is unanimous, this Court can easily reverse. Failing that, however, basic regard for federalism requires that this issue be certified to the California Supreme Court. See, e.g., Osterweil v. Bartlett, 706 F.3d 139, 143 (2d Cir. 2013) (O'Connor, J.) (certification of question that "require[s] value judg- ments and public policy choices" necessary to respect "principles of cooperative federalism"). CONCLUSION This Court should reverse. 23 Case 17-1569, Document 480, 03/16/2018, 2259171, Page32 of 34 Dated: March 16, 2018 Respectfully submitted, By: /s/ Eric F. Citron By: /s/ Steven E. Fineman THOMAS C. GOLDSTEIN STEVEN E. FINEMAN ERIC F. CITRON MICHAEL J. MIARMI CHARLES H. DAVIS LIEFF CABRASER HEIMANN GOLDSTEIN & RUSSELL, P.C. & BERNSTEIN, LLP 7475 Wisconsin Avenue, Suite 850 250 Hudson Street, 8th Floor Bethesda, Maryland 20814 New York, New York 10013 (202) 362-0636 (212) 355-9500 – and – Attorneys for the Schwab Plaintiffs- Appellants and Plaintiffs-Appellants BRENDAN P. GLACKIN LIEFF CABRASER HEIMANN Ellen Gelboim and Linda Zacher & BERNSTEIN, LLP 275 Battery Street, 29th Floor San Francisco, California 94111 By: /s/ Karen L. Morris (415) 956-1000 KAREN L. MORRIS PATRICK F. MORRIS Attorneys for the Schwab Plaintiffs- R. MICHAEL LINDSEY Appellants MORRIS AND MORRIS LLC COUNSELORS AT LAW 4023 Kennett Pike, #254 Wilmington, Delaware 19807 (302) 426-0400 – and – DAVID H. WEINSTEIN ROBERT S. KITCHENOFF WEINSTEIN KITCHENOFF & ASHER LLC 100 South Broad Street, Suite 705 Philadelphia, Pennsylvania 19110 (215) 545-7200 Attorneys for Plaintiffs-Appellants Ellen Gelboim and Linda Zacher 24 Case 17-1569, Document 480, 03/16/2018, 2259171, Page33 of 34 CERTIFICATE OF COMPLIANCE 1. This document complies with the type-volume limit as set out in this Court's Aug. 24, 2017 Order (17-1569 Doc. 137) because, excluding the parts of the documents exempted by Fed. R. App. P. 32(f), the two reply briefs collectively con- tain 14,000 words or less. This document contains 5,097 words, excluding the parts of the document exempted by Fed. R. App. P. 32(f). 2. This document complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because this document has been prepared in a proportionally spaced typeface using Word 2016 in 14-point Times New Roman. /s/ Eric F. Citron Eric F. Citron Case 17-1569, Document 480, 03/16/2018, 2259171, Page34 of 34 CERTIFICATE OF SERVICE I hereby certify that I served a copy of the foregoing brief on all parties on March 16, 2018, through the Court's CM/ECF system. Counsel for all parties are registered users of that system. /s/ Eric F. Citron Eric F. Citron

NEW CASE MANAGER, Troy White, ASSIGNED.[2259554] [17-1569, 17-1915, 17-1989, 17-2056, 17-2343, 17-2347, 17-2351, 17-2352, 17-2360, 17-2376, 17-2381, 17-2383, 17-2413] [Entered: 03/19/2018 11:22 AM]

Case 17-1569, Document 482, 03/19/2018, 2259554, Page1 of 2 United States Court of Appeals for the Second Circuit Thurgood Marshall U.S. Courthouse 40 Foley Square New York, NY 10007 ROBERT A. KATZMANN CATHERINE O'HAGAN WOLFE CHIEF JUDGE CLERK OF COURT Date: March 19, 2018 DC Docket #: 11-md-2262 Docket #: 17-1569cv DC Court: SDNY (NEW YORK Short Title: In Re: Libor-Based Financial CITY)DC Docket #: 11-cv-6409 DC Court: SDNY (NEW YORK CITY)DC Docket #: 11-cv-6411 DC Court: SDNY (NEW YORK CITY)DC Docket #: 11-cv-6412 DC Court: SDNY (NEW YORK CITY)DC Docket #: 11-md-2262 DC Court: SDNY (NEW YORK CITY)DC Docket #: 11-cv-5450 DC Court: SDNY (NEW YORK CITY)DC Docket #: 12-cv-1025 DC Court: SDNY (NEW YORK CITY)DC Docket #: 11-md-2262 DC Court: SDNY (NEW YORK CITY)DC Docket #: 11-cv-2613 DC Court: SDNY (NEW YORK CITY)DC Docket #: 11-md-2262 DC Court: SDNY (NEW YORK CITY)DC Docket #: 11-md-2262 DC Court: SDNY (NEW YORK CITY)DC Docket #: 14-cv-3094 DC Court: SDNY (NEW YORK CITY)DC Docket #: 13-cv-6020 DC Court: SDNY (NEW YORK CITY)DC Docket #: 11-md-2262 DC Court: SDNY (NEW YORK CITY)DC Docket #: 13-cv-4018 DC Court: SDNY (NEW YORK CITY)DC Docket #: 11-md-2262 DC Court: SDNY (NEW YORK CITY)DC Docket #: 13-cv-8799 DC Court: SDNY (NEW YORK CITY)DC Docket #: 14-cv-4189 DC Court: SDNY (NEW YORK CITY)DC Docket #: 13-cv-5616 DC Court: SDNY (NEW YORK CITY)DC Docket #: 11-md-2262 Case 17-1569, Document 482, 03/19/2018, 2259554, Page2 of 2 DC Court: SDNY (NEW YORK CITY)DC Docket #: 13-cv-4018 DC Court: SDNY (NEW YORK CITY)DC Docket #: 11-md-2262 DC Court: SDNY (NEW YORK CITY)DC Docket #: 13-cv-7394 DC Court: SDNY (NEW YORK CITY)DC Docket #: 11-md-2262 DC Court: SDNY (NEW YORK CITY)DC Docket #: 13-cv-5186 DC Court: SDNY (NEW YORK CITY)DC Docket #: 13-cv-626 DC Court: SDNY (NEW YORK CITY)DC Docket #: 13-cv-5221 DC Court: SDNY (NEW YORK CITY)DC Docket #: 13-cv-627 DC Court: SDNY (NEW YORK CITY)DC Docket #: 13-cv-597 DC Court: SDNY (NEW YORK CITY)DC Docket #: 13-cv-8644 DC Court: SDNY (NEW YORK CITY)DC Docket #: 13-cv-5569 DC Court: SDNY (NEW YORK CITY)DC Docket #: 13-cv-625 DC Court: SDNY (NEW YORK CITY)DC Docket #: 13-cv-5187 DC Court: SDNY (NEW YORK CITY) DC Judge: Buchwald NOTICE OF CASE MANAGER CHANGE The case manager assigned to this matter has been changed. Inquiries regarding this case may be directed to 212-857-8543.

REPLY BRIEF, on behalf of Appellant Bay Area Toll Authority, Charles Schwab & Co., Inc., Charles Schwab Bank, N.A., Schwab Advisor Cash Reserves, Schwab Cash Reserves, Schwab Investor Money Fund, Schwab Money Market Fund, Schwab Retirement Advantage Money Fund, Schwab Short-Term Bond Market Fund, Schwab Total Bond Market Fund, Schwab U.S. Dollar Liquid Assets Fund, Schwab Value Advantage Money Fund, Schwab YieldPlus Fund, Schwab YieldPlus Fund Liquidation Trust and The Charles Schwab Corporation in 17-1569, Appellant Bay Area Toll Authority in 17-2343, FILED. Service date 03/23/2018 by CM/ECF. [2263600] [17-1569, 17-1915, 17-1989, 17-2056, 17-2343, 17-2347, 17-2351, 17-2352, 17-2360, 17-2376, 17-2381, 17-2383, 17-2413] [Entered: 03/23/2018 02:43 PM]

17-1569(L), Case 17-1569, Document 485, 03/23/2018, 2263600, Page1 of 55 17-1915(CON), 17-1989(CON), 17-2056(CON), 17-2343(CON), 17-2347(CON), 17-2351(CON), 17-2352(CON), 17-2360(CON), 17-2376(CON), 17-2381(CON), 17-2383(CON), 17-2413(CON) United States Court of Appeals for the Second Circuit SCHWAB SHORT-TERM BOND MARKET FUND, SCHWAB TOTAL BOND MARKET FUND, SCHWAB U.S. DOLLAR LIQUID ASSETS FUND, (For Continuation of Caption See Next Page) _______________________________ ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK JOINT REPLY BRIEF FOR PLAINTIFFS-APPELLANTS REGARDING PERSONAL JURISDICTION (REDACTED) THOMAS C. GOLDSTEIN STEVEN E. FINEMAN ERIC F. CITRON MICHAEL J. MIARMI CHARLES H. DAVIS LIEFF CABRASER HEIMANN GOLDSTEIN & RUSSELL, P.C. & BERNSTEIN, LLP 7475 Wisconsin Avenue, Suite 850 250 Hudson Street, 8th Floor Bethesda, Maryland 20814 New York, New York 10013 (202) 362-0636 (212) 355-9500 – and – Attorneys for the Schwab Plaintiffs-Appellants and Plaintiffs-Appellants Ellen Gelboim and BRENDAN P. GLACKIN Linda Zacher LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 275 Battery Street, 29th Floor San Francisco, California 94111 (415) 956-1000 Attorneys for the Schwab Plaintiffs- Appellants and Plaintiff-Appellant Bay Area Toll Authority (For Continuation of Appearances See Next Page) Case 17-1569, Document 485, 03/23/2018, 2263600, Page2 of 55 SCHWAB MONEY MARKET FUND, SCHWAB VALUE ADVANTAGE MONEY FUND, SCHWAB RETIREMENT ADVANTAGE MONEY FUND, SCHWAB INVESTOR MONEY FUND, SCHWAB CASH RESERVES, SCHWAB ADVISOR CASH RESERVES, CHARLES SCHWAB BANK, N.A., CHARLES SCHWAB & CO., INC., SCHWAB YIELDPLUS FUND, SCHWAB YIELDPLUS FUND LIQUIDATION TRUST, THE CHARLES SCHWAB CORPORATION, CITY OF NEW BRITAIN, on behalf of itself and all others similarly situated, MAYOR AND CITY COUNCIL OF BALTIMORE, CITY OF HOUSTON, VISTRA ENERGY CORPORATION, YALE UNIVERSITY, JENNIE STUART MEDICAL CENTER, INC., FTC FUTURES FUND PCC LTD, on behalf of themselves and all others similarly situated, NATIONAL CREDIT UNION ADMINISTRATION BOARD, as Liquidating Agent of U.S. Central Federal Credit Union, WESTERN CORPORATE FEDERAL CREDIT UNION, MEMBERS UNITED CORPORATE FEDERAL CREDIT UNION, SOUTHWEST CORPORATE FEDERAL CREDIT UNION, and CONSTITUTION CORPORATE FEDERAL CREDIT UNION, PENNSYLVANIA INTERGOVERNMENTAL COOPERATION AUTHORITY, CITY OF PHILADELPHIA, DARBY FINANCIAL PRODUCTS, SALIX CAPITAL US INC., CAPITAL VENTURES INTERNATIONAL, PRUDENTIAL INVESTMENT PORTFOLIOS 2, FKA Dryden Core Investment Fund, on behalf of Prudendtial Core Short-Term Bond Fund, BAY AREA TOLL AUTHORITY, CALIFORNIA PUBLIC PLAINTIFFS, LINDA ZACHER, ELLEN GELBOIM, on behalf of herself and all others similarly situated, GARY FRANCIS, METZLER INVESTMENT GMBH, on behalf of itself and all others similarly situated, 303030 TRADING LLC, ATLANTIC TRADING USA, LLC, FTC FUTURES FUND SICAV, on behalf of themselves and all others similarly situated, NATHANIEL HAYNES, COUNTY OF SONOMA, THE SAN MATEO COUNTY JOINT POWERS FINANCING AUTHORITY, RICHMOND JOINT POWERS FINANCING AUTHORITY, SUCCESSOR AGENCY TO THE RICHMOND COMMUNITY REDEVELOPMENT AGENCY, RIVERSIDE PUBLIC FINANCING AUTHORITY, DAVID E. SUNDSTROM, in his official capacity as Treasurer of the county of Sonoma for and on behalf of the Sonoma County Treasury Pool Investment, EAST BAY MUNICIPAL UTILITY DISTRICT, REGENTS OF THE UNIVERSITY OF CALIFORNIA, Plaintiffs-Appellants, CARPENTERS PENSION FUND OF WEST VIRGINIA, CITY OF DANIA BEACH POLICE & FIREFIGHTERS' RETIREMENT SYSTEM, Individually and on behalf of all others similarly situated, RAVAN INVESTMENTS, LLC, RICHARD HERSHEY, JEFFREY LAYDON, on behalf of himself and all others similarly situated, ROBERTO E. CALLE GRACEY, AVP PROPERTIES, LLC, COMMUNITY BANK & TRUST, BERKSHIRE BANK, Individually and On Behalf of All Others Similarly Situated, ELIZABETH LIEBERMAN, on behalf of themselves and all other similarly situated, TODD AUGENBAUM, on behalf of themselves and all others similarly situated, 33-35 GREEN POND ROAD ASSOCIATES, LLC, on behalf of itself and all others similarly situated, COURTYARD AT AMWELL II, LLC, ANNIE BELL ADAMS, on behalf of herself and all others similarly situated, JILL COURT ASSOCIATES II, LLC, GREENWICH COMMONS II, LLC, DENNIS PAUL FOBES, on behalf of Case 17-1569, Document 485, 03/23/2018, 2263600, Page3 of 55 himself and all others similarly situated, LEIGH E. FOBES, on behalf of herself and all others similarly situated, MAIDENCREEK VENTURES II LP, RARITAN COMMONS, LLC, MARGARET LAMBERT, on behalf of herself and all others similarly situated, LAWRENCE W. GARDNER, on behalf of themselves and all others similarly situated, BETTY L. GUNTER, on behalf of herself and all others similarly situated, TEXAS COMPETITIVE ELECTRIC HOLDINGS COMPANY LLC, GOVERNMENT DEVELOPMENT BANK FOR PUERTO RICO, CARL A. PAYNE, individually, and on behalf of other members of the general public similarly situated, GUARANTY BANK AND TRUST COMPANY, Individually and on behalf of all others similarly situated, KENNETH W. COKER, individually, and on behalf of other members of the general public similarly situated, THE COUNTY OF MENDOCINO, COUNTY OF SAN MATEO, CITY OF RICHMOND, COUNTY OF SAN DIEGO, CITY OF RIVERSIDE, COUNTY OF SACRAMENTO, SAN DIEGO ASSOCIATION OF GOVERNMENTS, JOSEPH AMABILE, LOUIE AMABILE, individually & on behalf of Lue Trading, Inc., NORMAN BYSTER, MICHAEL CAHILL, RICHARD DEOGRACIAS, individually on behalf of RCD Trading, Inc., HEATHER M. EARLE, on behalf of themselves and all others similarly situated, HENRYK MALINOWSKI, on behalf of themselves and all others similarly situated, MARC FEDERIGHI, individually on behalf of MCO Trading, SCOTT FEDERIGHI, individually on behalf of Katsco, Inc., LINDA CARR, on behalf of themselves and all others similarly situated, ERIC FRIEDMAN, on behalf of themselves and all others similarly situated, ROBERT FURLONG, individually on behalf of XCOP, Inc., DAVID GOUGH, COUNTY OF RIVERSIDE, JERRY WEGLARZ, BRIAN HAGGERTY, individually on behalf of BJH Futures, Inc., DAVID KLUSENDORF, NATHAN WEGLARZ, on behalf of plaintiffs and a class, DIRECTORS FINANCIAL GROUP, individually and on behalf of all others similarly situated, RONALD KRUG, CHRISTOPHER LANG, SEIU PENSION PLANS MASTER TRUST, individually and on behalf of all others similarly situated, HIGHLANDER REALTY, LLC, JOHN MONCKTON, PHILIP OLSON, JEFFREY D. BUCKLEY, FEDERAL HOME LOAN MORTGAGE CORPORATION, BRETT PANKAU, DAVID VECCHIONE, individually on behalf of Vecchione & Associates, RANDALL WILLIAMS, JOHN HENDERSON, 303 PROPRIETARY TRADING LLC, MARGERY TELLER, CEMA JOINT VENTURE, NICHOLAS PESA, EDUARDO RESTANI, PRINCIPAL FUNDS, INC., PFI BOND & MORTGAGE SECURITIES FUND, PFI BOND MARKET INDEX FUND, PFI CORE PLUS BOND I FUND, PFI DIVERSIFIED REAL ASSET FUND, PFI EQUITY INCOME FUND, PFI GLOBAL DIVERSIFIED INCOME FUND, PFI GOVERNMENT &HIGH QUALITY BOND FUND, PFI HIGH YIELD FUND, PFI HIGH YIELD FUND I, PFI INCOME FUND, PFI INFLATION PROTECTION FUND, PFI SHORT-TERM INCOME FUND, PFI MONEY MARKET FUND, PFI PREFERRED SECURITIES FUND, PRINCIPAL VARIABLE CONTRACTS FUNDS, INC., PVC ASSET ALLOCATION ACCOUNT, PVC MONEY MARKET ACCOUNT, PVC BALANCED ACCOUNT, PVC BOND & MORTGAGE SECURITIES ACCOUNT, PVC EQUITY INCOME ACCOUNT, PVC GOVERNMENT & HIGH QUALITY BOND ACCOUNT, PVC INCOME ACCOUNT, PVC SHORT-TERM INCOME ACCOUNT, PRINCIPAL FINANCIAL GROUP, INC., PRINCIPAL FINANCIAL SERVICES, INC., PRINCIPAL LIFE INSURANCE COMPANY, PRINCIPAL CAPITAL INTEREST ONLY I, LLC, PRINCIPAL COMMERCIAL FUNDING, LLC, PRINCIPAL COMMERCIAL FUNDING II, Case 17-1569, Document 485, 03/23/2018, 2263600, Page4 of 55 LLC, PRINCIPAL REAL ESTATE INVESTORS, LLC, VITO SPILLONE, BRIAN MCCORMICK, MAXWELL VAN DE VELDE, Individually and on behalf of all others similarly situated, INDEPENDENCE TRADING, INC., INSULATORS AND ASBESTOS WORKERS LOCAL #14, Individually and on behalf of all others similarly situated, COURMONT & WAPNER ASSOCIATES, L.P., on behalf of itself and all others similarly situated, SALIX CAPITAL LTD., FTC CAPITAL GMBH, on behalf of themselves and all others similarly situated, CITY OF NEW BRITAIN FIREFIGHTERS' AND POLICE BENEFIT FUND, DIRECT ACTION PLAINTIFFS, FEDERAL NATIONAL MORTGAGE ASSOCIATION, TRIAXX PRIME CDO 2006-1, LTD., TRIAXX PRIME CDO 2006-2, LTD., TRIAXX PRIME CDO 2007-1, LTD., FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver, FRAN P. GOLDSLEGER, NATIONAL ASBESTOS WORKERS PENSION FUND, PENSION TRUST FOR OPERATING ENGINEERS, HAWAII ANNUITY TRUST FUND FOR OPERATING ENGINEERS, CEMENT MASONS' INTERNATIONAL ASSOCIATION EMPLOYEES' TRUST FUND, individually and on behalf of all others similarly situated, AXIOM INVESTMENT ADVISORS, LLC, AXIOM HFT LLC, AXIOM INVESTMENT ADVISORS HOLDINGS L.P., AXIOM INVESTMENT COMPANY, LLC, AXIOM INVESTMENT COMPANY HOLDINGS L.P., AXIOM FX INVESTMENT FUND, L.P., AXIOM FX INVESTMENT FUND II, L.P., AXIOM FX INVESTMENT 2X FUND, L.P., EPHRAIM F. GILDOR, GILDOR FAMILY ADVISORS L.P., GILDOR FAMILY COMPANY L.P., GILDOR MANAGEMENT, LLC, PRUDENTIAL CORE TAXABLE MONEY MARKET FUND, Plaintiffs, – v. – LLOYDS BANKING GROUP PLC, BANK OF AMERICA CORPORATION, THE ROYAL BANK OF SCOTLAND GROUP PLC, CREDIT SUISSE GROUP AG, DEUTSCHE BANK AG, JPMORGAN CHASE & CO., THE NORINCHUKIN BANK, HBOS PLC, ROYAL BANK OF CANADA, HSBC BANK PLC, COOPERATIEVE RABOBANK U.A., FKA COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., JPMORGAN CHASE BANK, N.A., THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., BANK OF AMERICA, N.A., BARCLAYS BANK PLC, WESTDEUTSCHE IMMOBILIENBANK AG, PORTIGON AG, FKA WESTLB AG, HSBC HOLDINGS PLC, WESTLB AG, SOCIETE GENERALE, COOPERATIEVE CENTRALE RAIFFEISEN - BOERENLEENBANK B.A., CREDIT SUISSE INTERNATIONAL, CREDIT SUISSE (USA), INC., THE ROYAL BANK OF SCOTLAND PLC, CREDIT SUISSE AG, HSBC SECURITIES (USA) INC., HSBC BANK USA, N.A., HSBC FINANCE CORPORATION, BARCLAYS CAPITAL INC., HSBC USA, INC., THE HONG KONG AND SHANGHAI BANKING CORPORATION LTD., RBC CAPITAL MARKETS LLC, BANK OF AMERICA N.A., RABOBANK GROUP, UBS SECURITIES LLC, CITI SWAPCO INC., BBA ENTERPRISES, LTD., BBA LIBOR, LTD., BRITISH BANKERS' ASSOCIATION, MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, FKA BANC OF AMERICA SECURITIES, LLC, CITIGROUP FINANCIAL PRODUCTS, INC., J.P. MORGAN BANK DUBLIN PLC, FKA BEAR STEARNS BANK PLC, UBS LIMITED, CREDIT SUISSE GROUP INTERNATIONAL, UBS AG, Defendants-Appellees, Case 17-1569, Document 485, 03/23/2018, 2263600, Page5 of 55 CREDIT AGRICOLE S.A., SUMITOMO MITSUI BANKING CORPORATION, BNP PARIBAS S.A., RBS CITIZENS, N.A., incorrectly sued as othe Charter One Bank NA, RBS CITIZENS, N.A., CREDIT SUISSE GROUP, NA, CITIZENS BANK OF MASSACHUSETTS, Agent of RBS Citizens Bank, NA, BARCLAYS US FUNDING LLC, DEUTSCHE BANK FINANCIAL LLC, DOES 1 THROUGH 10, SOCIETE GENERALE CORPORATE & INVESTMENT BANKING, NATIONAL ASSOCIATION, STEPHANIE NAGEL, JOHN DOES #1- #5, NATIONAL COLLEGIATE STUDENT LOAN TRUST 2007-1, CHASE BANK USA, N.A., J.P. MORGAN CLEARING CORP., BANK OF AMERICA SECURITIES LLC, CENTRALE RAIFFEISEN-BERENLEENBANK B.A., UBS AG, ROYAL BANK OF SCOTLAND GROUP PLC, BANK OF NOVA SCOTIA, CREDIT SUISSE SECURITIES (USA) LLC, RBS GROUP, LLOYDS BANK PLC, FKA Lloyds Bank plc, CITIZENS BANK N.A., CREDIT SUISSE SECURITIES (USA) LLC, CITIGROUP GLOBAL MARKETS, INC., THE ROYAL BANK OF SCOTLAND PLC, LLOYDS BANK PLC, CITIGROUP FUNDING, INC., SOCIETE GENERALE S.A., BARCLAYS PLC, J.P. MORGAN SECURITIES LLC, FKA J.P. Morgan Securities Inc., DEUTSCHE BANK SECURITIES INCORPORATED, BANC OF AMERICA SECURITIES, LLC, RBS SECURITIES INC., FKA Greenwich Capital Markets, Inc., LLOYDS TSB BANK PLC, ICAP PLC, J.P. MORGAN MARKETS LTD., BANK OF AMERICA HOME LOANS, MERRILL LYNCH CAPITAL SERVICES, INC., CITIGROUP GLOBAL MARKETS LIMITED, MERRILL LYNCH & CO., INC., MERRILL LYNCH INTERNATIONAL BANK, LTD., BEAR STEARNS CAPITAL MARKETS, INC., BARCLAYS CAPITAL (CAYMAN) LIMITED, INSTITUTE OF INTERNATIONAL BANKERS, CLEARING HOUSE ASSOCIATION L.L.C., CITIBANK, N.A., CITIGROUP INC., Defendants. BARRY BARNETT RICHARD W. MITHOFF SUSMAN GODFREY L.L.P. MITHOFF LAW 1000 Louisiana Street One Allen Center Houston, Texas 77002 Penthouse, Suite 3450 (713) 651-9366 500 Dallas Street Houston, Texas 77002 – and – (713) 654-1122 WILLIAM C. CARMODY ARUN S. SUBRAMANIAN Attorneys for Plaintiff-Appellant GENG CHEN City of Houston SUSMAN GODFREY L.L.P. 1301 Avenue of the Americas New York, New York 10019 (212) 336-8330 – and – Case 17-1569, Document 485, 03/23/2018, 2263600, Page6 of 55 DREW HANSEN NANCI E. NISHIMURA SUSMAN GODFREY L.L.P. COTCHETT, PITRE & MCCARTHY, LLP 1201 Third Avenue 840 Malcolm Road, Suite 200 Seattle, Washington 98101 Burlingame, California 94010 (206) 516-3880 (650) 697-6000 – and – – and – MARC M. SELTZER ALEXANDER E. BARNETT SUSMAN GODFREY L.L.P. COTCHETT, PITRE & MCCARTHY, LLP 1901 Avenue of the Stars 40 Worth Street, 10th Floor Los Angeles, California 90067 New York, New York 10013 (310) 789-3100 (212) 201-6820 – and – Attorneys for Plaintiffs-Appellants City of MICHAEL D. HAUSFELD Houston, County of San Mateo, The San HILARY K. SCHERRER Mateo County Joint Powers Financing NATHANIEL C. GIDDINGS Authority, City of Richmond, The HAUSFELD LLP Richmond Joint Powers Financing 1700 K Street, NW Authority, Successor Agency to the Washington, DC 20006 Richmond Community Redevelopment (202) 540-7200 Agency, City of Riverside, The Riverside Public Financing Authority, County of Attorneys for Plaintiffs-Appellants City Mendocino, County of Sacramento, of New Britain, Mayor and City County of San Diego, County of Council of Baltimore, Vistra Energy Sonoma, David E. Sundstrom, in his Corporation, Yale University, and official capacity as Treasurer of the Jennie Stuart Medical Center, Inc. County of Sonoma, San Diego Association of Governments, East Bay KAREN L. MORRIS Municipal Utility District, and The PATRICK F. MORRIS Regents of the University of California R. MICHAEL LINDSEY MORRIS AND MORRIS LLC DAVID E. KOVEL COUNSELORS AT LAW ANDREW M. MCNEELA 4023 Kennett Pike, #254 KIRBY MCINERNEY LLP Wilmington, Delaware 19807 825 Third Avenue (302) 426-0400 New York, New York 10022 – and – (212) 371-6600 DAVID H. WEINSTEIN – and – ROBERT S. KITCHENOFF CHRISTOPHER LOVELL WEINSTEIN KITCHENOFF & ASHER LLC LOVELL STEWART HALEBIAN 100 South Broad Street, Suite 705 JACOBSON LLP Philadelphia, Pennsylvania 19110 61 Broadway, Suite 501 (215) 545-7200 New York, New York 10006 (212) 608-1900 Attorneys for Plaintiffs-Appellants Ellen Gelboim and Linda Zacher Attorneys for Plaintiffs-Appellants Metzler Investment GmbH, Gary Francis, 303030 Trading LLC, Atlantic Trading USA, LLC, FTC Futures Fund PCC Ltd., FTC Futures Fund SICAV, and Nathaniel Haynes Case 17-1569, Document 485, 03/23/2018, 2263600, Page7 of 55 STEIG D. OLSON DANIEL L. BROCKETT DANIEL P. CUNNINGHAM DAVID C. FREDERICK QUINN EMANUEL URQUHART ANDREW C. SHEN & SULLIVAN, LLP KELLOGG, HANSEN, TODD, FIGEL 51 Madison Avenue, 22nd Floor & FREDERICK, P.L.L.C. New York, New York 10010 1615 M Street, NW, Suite 400 (212) 849-7000 Washington, DC 20036 (202) 326-7900 – and – JEREMY ANDERSEN Attorneys for Plaintiff-Appellant National QUINN EMANUEL URQUHART Credit Union Administration Board & SULLIVAN, LLP 865 South Figueroa Street, 10th Floor DANIEL L. BROCKETT Los Angeles, California 90017 STEIG D. OLSON (213) 443-3000 DANIEL P. CUNNINGHAM QUINN EMANUEL URQUHART Attorneys for Plaintiffs-Appellants & SULLIVAN, LLP The City of Philadelphia and the 51 Madison Avenue, 22nd Floor Pennsylvania Intergovernmental New York, New York 10010 Cooperation Authority (212) 849-7000 – and – JEREMY ANDERSEN QUINN EMANUEL URQUHART & SULLIVAN, LLP 865 South Figueroa Street, 10th Floor Los Angeles, California 90017 (213) 443-3000 Attorneys for Plaintiffs-Appellants Prudential Investment Portfolios 2, Darby Financial Products, Capital Ventures International, and Salix Capital US Inc. Case 17-1569, Document 485, 03/23/2018, 2263600, Page8 of 55 TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... ii SUMMARY OF ARGUMENT ................................................................................. 1 ARGUMENT ............................................................................................................. 4 I. Defendants' Overt Acts In The United States In Furtherance Of Their Conspiracy Give Rise To Conspiracy Jurisdiction. ............................................. 4 II. Schwab Holds That Defendants' U.S. Sales Create Personal Jurisdiction For Claims Arising From Those Sales, And Support Jurisdiction On Other Theories As Well. .......................................................... 17 A. Schwab Holds Personal Jurisdiction Is Proper for Direct-Purchaser Antitrust Claims ........................................................................................... 18 B. For All Other Claims, Defendants' Sales and Other Forum Contacts Create Personal Jurisdiction Either Through Direct Contacts or Under the Effects Test. ............................................................. 24 1. Defendants' billions in U.S. sales of price-fixed instruments demonstrate that their profit-motivated conspiracy was directed at this forum. ............................................................................ 25 2. Defendants' reputation-motived conspiracy was also expressly aimed at, and carried out in, the United States. ..................................... 27 III. Defendants Cannot Defend The District Court's Failure To Find Jurisdiction Under Clayton Act §12. ................................................................. 30 A. U.S.-Resident Banks Are Obviously Subject to Congressionally Granted Personal Jurisdiction. ..................................................................... 31 B. The Foreign Banks Also Lack Any Constitutional Defense to Jurisdiction Under Clayton Act §12. ........................................................... 31 IV. Defendants Have Waived Their Personal Jurisdiction Defense In Certain Cases. .................................................................................................... 34 A. OTC Plaintiffs.............................................................................................. 34 B. Bondholders ................................................................................................. 35 C. Direct-Action Plaintiffs ............................................................................... 37 CONCLUSION ........................................................................................................ 38 i Case 17-1569, Document 485, 03/23/2018, 2263600, Page9 of 55 TABLE OF AUTHORITIES Cases Anderson Grp., LLC v. City of Saratoga Springs, 805 F.3d 34 (2d Cir. 2015) ................................................................................23 Anderson News, L.L.C. v. Am. Media, Inc., 680 F.3d 162 (2d Cir. 2012) ..............................................................................11 Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 305 F.3d 120 (2d Cir. 2002) ..............................................................................27 Bristol-Myers Squibb Co. v. Sup. Ct., 137 S. Ct. 1773 (2017) ................................................................................ 32, 33 Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985) ...........................................................................................23 Burnham v. Superior Court, 495 U.S. 604 (1990) ...........................................................................................34 Calder v. Jones, 465 U.S. 783 (1984) ................................................................................ 2, 29, 30 Charles Schwab Corp. v. Bank of Am. Corp., 883 F.3d 68 (2d Cir. 2018) ........................................................................ passim Chevron Corp. v. Naranjo, 667 F.3d 232 (2d Cir. 2012) ..............................................................................35 Chloé v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158 (2d Cir. 2010) ....................................................................... 23, 26 Corporacion Mexicana de Mantenimiento Integral, S. de R.L. de C.V. v. Pemex Exploracion y Produccion, 832 F.3d 92 (2d Cir. 2016) ........... 35, 37, 38 Daimler AG v. Bauman, 134 S. Ct. 746 (2014) ............................................................................ 31, 33, 35 Dorchester Fin. Sec., Inc. v. Banco BRJ, S.A., 722 F.3d 81 (2d Cir. 2013) ..................................................................................7 Eades v. Kennedy, PC Law Offices, 799 F.3d 161 (2d Cir. 2015) ..............................................................................23 EMI Christian Music Grp. v. MP3tunes, LLC, 844 F.3d 79 (2d Cir. 2016) ................................................................................26 ii Case 17-1569, Document 485, 03/23/2018, 2263600, Page10 of 55 Gelboim v. Bank of Am. Corp., 823 F.3d 759 (2d Cir. 2016) ...................................................................... passim Gucci Am., Inc. v. Weixing Li, 768 F.3d 122 (2d Cir. 2014) ..............................................................................35 Hamilton v. Atlas Turner, Inc., 197 F.3d 58 (2d Cir. 1999) ................................................................................37 In re Nassau Cty. Strip Search Cases, 639 Fed. Appx. 746 (2d Cir. 2016)....................................................................36 In re Pub. Paper Antitrust Litig., 690 F.3d 51 (2d Cir. 2012) ......................................................................... 20, 21 J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873 (2011) ...........................................................................................30 Kernan v. Kurz-Hastings, Inc., 175 F.3d 236 (2d Cir. 1999) ..............................................................................26 Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 732 F.3d 161 (2d Cir. 2013) ....................................................................... 15, 21 Litton Sys., Inc. v. AT&T Co., 700 F.2d 785 (2d Cir. 1983) ................................................................................7 McGee v. Int'l Life Ins. Co., 355 U.S. 220 (1957) ...........................................................................................23 Peterson v. Cellco P'ship, 80 Cal. Rptr. 3d 316 (Ct. App. 2008) ................................................................22 Riciuti v. N.Y.C. Transit Auth., 941 F.2d 119 (2d Cir. 1991) ................................................................................7 Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477 (1989) ...........................................................................................33 Selman v. Harvard Med. Sch., 494 F. Supp. 603 (S.D.N.Y. 1980) ....................................................................23 United States v. Scophony Corp., 333 U.S. 795 (1948) .................................................................................... 32, 34 United States v. Southland Corp., 760 F.2d 1366 (2d Cir. 1985) ..............................................................................7 Walden v. Fiore, 134 S. Ct. 1115 (2014) .................................................................................. 4, 29 iii Case 17-1569, Document 485, 03/23/2018, 2263600, Page11 of 55 Statutes 15 U.S.C. §22 (Clayton Act §12)............................................................ 2, 30, 32, 34 15 U.S.C. §6a ...........................................................................................................32 Rules Fed. R. Civ. P. 54(b) ......................................................................................... 36, 37 Fed. R. Evid. 801(d)(2) advisory committee's note ..................................................7 Other Authorities Jill Treanor, Former Barclays Executive Insists Bob Diamond Instructed Him to Cut Libor, The Guardian (July 16, 2012), https://www.theguardian.com /business/2012/jul/16/barclays-del-missier-bob-diamond-libor ........................13 iv Case 17-1569, Document 485, 03/23/2018, 2263600, Page12 of 55 SUMMARY OF ARGUMENT While plaintiffs' opening brief amply demonstrated why settled personal- jurisdiction principles warrant reversal, this Court's intervening opinion in Charles Schwab Corp. v. Bank of America Corp., 883 F.3d 68 (2d Cir. 2018), resolves any doubt. Its holdings control on multiple grounds. First, and simplest, is Schwab's holding that U.S. courts have jurisdiction over all defendants if one "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. at 87. Here, plaintiffs have developed detailed, record-supported allegations of "in-forum acts taken in furtherance of the conspiracy," id. at 90, and Schwab makes clear that those allegations must be "credited" at this stage. Id. at 81. These direct forum contacts, especially viewed in their totality as required, resolve this appeal for all parties. See infra Part I. Second, there can be no doubt after Schwab that there is personal jurisdiction for claims predicated on defendants' own transactions in the United States. As Schwab explained, "[a]llegations of billions of dollars in transactions in California easily make out a prima facie showing of personal jurisdiction for claims relating to those transactions." Id. at 82 (emphasis added). Schwab's holding was thus to re- verse the district court's personal-jurisdiction ruling with respect to "claims concern- ing products sold in California." Id. at 98. This holding covers the antitrust claims 1 Case 17-1569, Document 485, 03/23/2018, 2263600, Page13 of 55 of direct-purchaser plaintiffs, which by definition "concern" defendants' products sold to those plaintiffs in the United States. See infra Part II.A. Third, Schwab suggests that while defendants were not subject to jurisdiction for state-law claims in California under the "effects test" because their conduct was insufficiently targeted at California, the same is not true for the nationwide test that applies to plaintiffs' federal antitrust claims. See id. at 87-88. Here, defendants plainly targeted their U.S. Dollar LIBOR manipulation at the United States in the same sense that led the Supreme Court to find jurisdiction in Calder v. Jones, 465 U.S. 783 (1984)—a case whose facts defendants do not mention. This is not "mere foreseeability," contra DPJBr. 52: Defendants needed to cause the effects they did in the United States to shore up their reputations and borrowing power in U.S. debt markets. They even launched a in the United States to bolster LIBOR's perceived integrity here, and took other steps to ensure the conspir- acy's U.S. effects. See infra Part II.B. Finally, because defendants' brief here does not appear to dispute that plain- tiffs pleaded venue under Clayton Act §12, acceptance of their jurisdictional argu- ment would require the Court to hold that Congress cannot subject companies who "transact business" in the United States to general jurisdiction for antitrust claims. This would be the first Court to so hold; numerous cases suggest the opposite; and the Supreme Court's decisions on general jurisdiction for state-law claims have 2 Case 17-1569, Document 485, 03/23/2018, 2263600, Page14 of 55 specifically reserved the question whether those limits constrain Congress's power. This Court should this dubious invalidation of a congressional statute. See infra Part III.B. Separately, defendants have no response to plaintiffs' argument that Congress may clearly subject U.S. banks—its own residents—to personal jurisdiction wher- ever they transact business, requiring reversal as to those defendants. See infra Part III.A. Ultimately, this was a U.S.-focused conspiracy, conducted with several U.S.- based co-conspirators, in which at least four defendants ordered and/or directed the suppression of LIBOR from the United States. Defendants also clearly targeted the United States; they knew the predominant effect of U.S. Dollar LIBOR manipulation would be felt here, and took numerous steps to ensure that U.S. effects came to pass (and that they profited from them). Schwab thus provides multiple, clear paths through which this Court can find jurisdiction, while finding the opposite would constitute an unprecedented restriction of the sovereignty of U.S. courts and the United States. This Court should reverse. 3 Case 17-1569, Document 485, 03/23/2018, 2263600, Page15 of 55 ARGUMENT I. Defendants' Overt Acts In The United States In Furtherance Of Their Conspiracy Give Rise To Conspiracy Jurisdiction. Defendants' opposition brief led with the argument that there is no such thing as "conspiracy jurisdiction," or that it is unconstitutional. See DPJBr. 53. They made the identical arguments in Schwab, and they were comprehensively rejected. Compare id., with Schwab-ECF 191, at 30 (nearly identical sentences and quotations from Walden v. Fiore, 134 S. Ct. 1115, 1123 (2014)). Rejecting defendants' position, this Court held in Schwab that "one conspira- tor's minimum contacts allow for personal jurisdiction over a co-conspirator," and satisfy the "purposeful availment requirement" as to all members of the conspiracy where the plaintiff makes a "prima facie showing" 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." 883 F.3d at 86, 87. Schwab also pro- vided leave for Schwab to "add allegations about in-forum acts taken in furtherance of the conspiracy," id. at 90—including allegations about whether "Defendants un- dertook [in-forum] sales as part of the alleged conspiracy." Id. at 87. But during the more than three years since the Schwab complaint was filed, plaintiffs have identi- fied many more U.S. acts in furtherance of the conspiracy—though they have 4 Case 17-1569, Document 485, 03/23/2018, 2263600, Page16 of 55 repeatedly been denied jurisdictional discovery. That makes this case easy to resolve at the motion-to-dismiss stage on conspiracy-jurisdiction grounds. To begin, defendants do not contest that the first and second conspiracy juris- diction elements are met, nor could they after Schwab and Gelboim v. Bank of Am. Corp., 823 F.3d 759, 781 (2d Cir. 2016). The only remaining question is thus whether plaintiffs have made a "prima facie" showing of "in-forum acts taken in furtherance of the conspiracy." Id. at 90. They plainly have. Indeed, while such a showing for even one co-conspirator would suffice under Schwab, plaintiffs allege that: (1) U.S.-based executives at four co-conspirator banks ordered and directed the suppression of LIBOR from the United States; (2) a fifth bank submitted its LIBOR quotes through a U.S.-headquartered subsidiary; (3) a sixth bank admitted that all panel banks submitted their suppressed LIBOR quotes to Thomson Reuters in New York for publication; and (4) defendants initiated a in the United States to reinforce belief in LIBOR here. These are in-forum overt acts in furtherance of defendants' conspiracy, and so suffice for per- sonal jurisdiction—especially at the pleading stage, where all of plaintiffs' allega- tions must be credit and all inferences drawn in their favor. See id. at 87-88. UBS. In Gelboim, this Court explained that the "'pack' behavior" alleged in the complaints "plausibly suggest[s] an inference of conspiracy," and quoted several "pack" allegations from the complaints, including that "UBS managers directed that 5 Case 17-1569, Document 485, 03/23/2018, 2263600, Page17 of 55 the bank's USD Libor submissions be artificially suppressed so as to place UBS in the middle of the pack of panel bank submissions." 823 F.3d at 766 & n.5. The pleadings and affidavits now before the Court make a prima facie showing that, for UBS, this "middle of the pack" directive issued from the United States. That ends the inquiry under Schwab. In particular, plaintiffs allege that "[a] senior UBS manager in Stamford, Con- necticut issued the standing directive to 'submit low LIBOR contributions' for USD LIBOR, and to keep submissions in the 'middle of the pack of other banks' expected LIBOR submissions.'" CA3-4. UBS admitted this to the Department of Justice (DOJ) in a plea agreement arising out of the manipulation of LIBOR by a UBS sub- sidiary, and other government regulators similarly identified significant acts in fur- therance of the conspiracy directed from the United States. See id. (citing ECF 4, United States v. UBS Sec. Japan Co., 3:12-cr-268 (D. Conn. Dec. 19, 2012)). Plain- tiffs further allege that "UBS implemented with precision this U.S.-based directive to collude for long stretches of the class period," CA4 (quoting Gelboim, 823 F.3d at 767), and that CA4; CA38. Defendants concede that the above allegation and supporting statement from UBS's plea agreement are clearly "about where UBS directed the suppression of 6 Case 17-1569, Document 485, 03/23/2018, 2263600, Page18 of 55 U.S.-Dollar LIBOR submissions," but they nonetheless argue that they can be ig- nored because the statement was "apparently not based on [the] personal knowledge" of the UBS employee at issue. DPJBr. 43 (emphasis added). They further note that the same document suggests that someone in Zurich also sent an email directing that LIBOR be suppressed. Id. Neither point helps defendants. First, defendants' argument regarding "personal knowledge" is procedurally irrelevant for multiple reasons. At the pleading stage, all plaintiffs' plausible alle- gations must be credited. Dorchester Fin. Sec., Inc. v. Banco BRJ, S.A., 722 F.3d 81, 85 (2d Cir. 2013). It does not matter whether one allegation (among many) is based on the "personal knowledge" of a UBS employee, since admissibility is irrel- evant at the pleading stage. See, e.g., Riciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991) ("The fact that a pleading contains references to documents that may eventually be ruled inadmissible in evidence is not a proper basis for dismis- sal[.]"). Moreover, this evidence came from the UBS DOJ Statement of Facts that admitted all facts in the document. That party admission is easily credible enough for the motion-to-dismiss stage; indeed, it would be admissible even at trial without regard to personal knowledge. See Fed. R. Evid. 801(d)(2) advisory committee's note; United States v. Southland Corp., 760 F.2d 1366, 1376 n.4 (2d Cir. 1985) (Friendly, J., distinguishing Litton Systems, Inc. v. AT&T Co., 700 F.2d 785, 816-17 (2d Cir. 1983)). 7 Case 17-1569, Document 485, 03/23/2018, 2263600, Page19 of 55 Second, defendants' fact-based contention is also substantively wrong: Ex- tensive documentary evidence, attached to declarations, corroborates UBS's own admission that its Stamford-based executive directed its LIBOR suppression. To begin, UBS's DOJ Statement of Facts admits that many other managers at UBS un- derstood the U.S. origins of the directive: "[T]he manager of UBS's Swiss Franc derivatives trading desk understood that in 2008, UBS Group Treasury instituted a policy of submitting LIBORs for all currencies, including Swiss Franc, in the middle of the pack of other banks' expected LIBOR submissions. S/he received this direc- tion from the senior manager heading ALM, who in turn indicated that the direction came from the Stamford-based Group Treasury senior manager." UBS SOF ¶129 (cited in ECF 1508, at 3) (emphasis added). Not only that, but CA109, and that CA111. Those facts, combined with the admissions above, easily merit an inference that UBS's directive to suppress LI- BOR originated here. In addition, CA4; CA38(¶51); CA166. 8 Case 17-1569, Document 485, 03/23/2018, 2263600, Page20 of 55 These allegations corroborate UBS's own admission and further indicate that at least some ongoing management, supervision, or control of the suppression by UBS was occurring in the United States—all of which would be acts in furtherance of the conspiracy even if (counterfactually) the original directive issued elsewhere. JPMorgan—Plaintiffs allege that JPMorgan, a U.S. bank, engaged in numer- ous U.S. acts in furtherance of the conspiracy, including:  On December 11, 2007, CA30; CA139.  One week later, on December 18, 2007, CA31; CA141.  On April 2, 2008, 9 Case 17-1569, Document 485, 03/23/2018, 2263600, Page21 of 55 CA35; CA156. CA35; CA156 (all emphases added). These numerous examples of New York-based JPMorgan executives directing JPMorgan's LIBOR suppression from the United States more than satisfy Schwab's third element for conspiracy jurisdiction. And the inference that JPMorgan directed suppression from the United States is bolstered by JPMorgan's U.S. leadership and home base. Defendants argue that plaintiffs' allegations as to JPMorgan, backed up by emails and recordings, reflect nothing more than "executives discuss[ing] LIBOR submissions and express[ing] opinions about those submissions." DPJBr. 44. This argument is foreclosed in fact and by law. Defendants primarily address a phone call between Contrary to defend- ants' characterization, 10 Case 17-1569, Document 485, 03/23/2018, 2263600, Page22 of 55 CA538 (emphasis added). These are action items, not water-cooler "conversations." Contra DPJRBr. 44 & n.7. Indeed, CA538. These are U.S. overt acts in furtherance of the LIBOR-suppression conspiracy on any measure. But the legal bar is far lower than that: "Because plausibility is a standard lower than probability, a given set of actions may well be subject to diverg- ing interpretations" and "[t]he choice between or among plausible inferences or sce- narios is one for the factfinder." Anderson News, L.L.C. v. Am. Media, Inc., 680 F.3d 162, 184 (2d Cir. 2012). Even if one might read these emails as mere "conver- sations" about "industry-related news," reversal would still be required because plaintiffs' contrary interpretation is plainly plausible –at the absolute least. See id. at 190 ("[A]lthough an innocuous interpretation of the defendants' conduct may be plausible, that does not mean that the plaintiff's allegation that the conduct was cul- pable is not also plausible[.]"). 11 Case 17-1569, Document 485, 03/23/2018, 2263600, Page23 of 55 Citi—Citibank, like JPMorgan, is a U.S. resident and headquartered bank. Citi executive CA34. This is an unambiguous overt act in the United States in furtherance of the LIBOR-suppression conspiracy. And, again, Citi's U.S. corporate leadership and headquarters only make an opposite inference all the more implausible. Barclays—Plaintiffs alleged that Barclays executive "Jerry Del Missier, who was based in New York … has admitted that he instructed subordinates to submit artificially low USD LIBOR rates." CA343. Defendants contend that "the article plaintiffs cited in support of that supposed admission directly contradicted plaintiffs' allegation" because "the article concerns a perceived directive from the Bank of England to lower Barclays' LIBOR submis- sions that was supposedly conveyed by Barclays' London-based CEO—not any em- ployee in the United States." DPJBr. 43. That is wrong. Wherever the direction may have started: 12 Case 17-1569, Document 485, 03/23/2018, 2263600, Page24 of 55 Del Missier said he passed on the instruction he received to reduce Li- bor submissions to the "head of the money market desk"—later named as Mark Dearlove. "It did not seem an inappropriate action given this was coming from the Bank of England," said Del Missier. Asked if he was acting on an instruction from Diamond, Del Missier said: "Yes it was." Jill Treanor, Former Barclays Executive Insists Bob Diamond Instructed Him to Cut Libor, The Guardian (July 16, 2012), https://www.theguardian.com/business/2012/ jul/16/barclays-del-missier-bob-diamond-libor, cited in CA343. The district court's holding that this did not constitute a U.S. overt act in fur- therance of the conspiracy because the "direction to submit low LIBOR rates" ulti- mately "came from CEO Bob Diamond" in London in plainly wrong. SPA25 n.17. Defendants never explain why giving an "instruction" to others to suppress LIBOR is not an act "in furtherance of the conspiracy" simply because the instruction (might have) originated elsewhere. See PPJBr. 62 (so arguing, to no response). Defendants do not contest that Barclays' New York-based executive instructed his subordinates to suppress Barclays' LIBOR submissions. Under Schwab, that is enough. Credit Suisse—Plaintiffs allege, with documentary support from an RBS message, that Credit Suisse's rigged USD-LIBOR submissions were submitted by CA5; CA56-57.1 Defendants 1 RBS's documents also confirm that its own U.S. personnel participated in LI- BOR suppression. For example, 13 Case 17-1569, Document 485, 03/23/2018, 2263600, Page25 of 55 argue (without explanation, citation, or evidence) that this allegation should be dis- regarded because "this comment by a different bank's employee [cannot] rebut[] Credit Suisse's declaration attesting to the fact that its USD LIBOR submitters worked for Credit Suisse AG's London Branch and made the submissions from Lon- don." DPJBr. 45. This again asks this Court to improperly accept defendants' self- serving affidavits over a well-pleaded allegation (supported by documentary evi- dence). Defendants attempt to defend the district court's conclusion that the docu- ment plaintiffs cite "does not credibly support the allegation," DPJBr. 45 (citing SPA29), but credibility judgments in favor of the defendants are foreclosed on a motion to dismiss. Because plaintiffs have thus far been denied jurisdictional dis- covery, the sole question here is whether plaintiffs had some basis to plausibly allege that Credit Suisse submitted its rigged LIBOR quotes through its The answer is obviously "yes," and defendants' contrary factual arguments are pre- cisely what discovery is designed to test. Rabobank—Plaintiffs alleged that "every panel bank 'transmitted' their daily collusive submissions to Thomson Reuters in New York for purposes of calculating the price-fixed LIBOR," CA5, based on a Rabobank trader's sworn admission in his plea allocution that "someone at Rabobank … would submit the Rabobank LIBOR CA787(¶15); CA805-06. 14 Case 17-1569, Document 485, 03/23/2018, 2263600, Page26 of 55 rate each day to Thomson Reuters in New York by means of an electronic wire trans- mission," CA342 (emphasis added). Sending suppressed submissions to the BBA's agent in New York for U.S. publication is plainly an overt U.S. act in furtherance of the conspiracy, and defendants do not argue otherwise. See Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 732 F.3d 161, 171 (2d Cir. 2013) ("In this case, the correspondent account at issue is alleged to have been used as an instrument to achieve the very wrong alleged."). Instead, defendants argue that this allegation can be ignored because "the Dis- trict Court was not required to treat a trader's impression of his bank's submission process as indicative of the LIBOR-submission process at that bank or any other bank." DPJBr. 45-46. Again, however, defendants provide no support for their in- sinuation that Rabobank's former employee "misspoke" in his sworn allocution (pre- sumably vetted by DOJ), and even if they did, plaintiffs' well-pleaded allegation would have to be credited over defendants' proffered explanation. Indeed, this point provides a vivid example of defendants' effort to game the procedural posture and the standard it requires. To test this disputed fact, OTC Plain- tiffs served interrogatories on Rabobank and every other defendant asking them to CA17-18. But all defendants refused to answer on the basis that this 15 Case 17-1569, Document 485, 03/23/2018, 2263600, Page27 of 55 was Id. The district court, at defendants' urging, then accepted their untested affidavits while questioning the credibility of plaintiffs' contrary allegations and supporting evidence. That is not a fair fight. The —Finally, defendants relegate to a footnote the that they—acting through their Foreign Exchange and Money Markets Committee (FXMMC) Secretary John Ewan (see PPJBr. 17-18)—under- took in the United States to bolster the perceived reliability of the LIBOR benchmark in U.S. markets. Those efforts included, among other things, a meeting with the Chicago Mercantile Exchange (CME). Defendants argue that these were only "a couple of visits" that had "nothing to do with determining or transmitting LIBOR." DPJBr. 46 n.8. But that's beside the point; as Schwab holds, submission of sup- pressed LIBOR quotes was not the only jurisdictionally relevant act involved in car- rying out the conspiracy. See 883 F.3d at 90 (rejecting this argument as "errone- ous"). That defendants sent an agent into the territorial United States to promote LIBOR's integrity is irrefutable evidence that defendants (1) aimed their LIBOR- suppression conspiracy at the United States and attempted to make sure its effects worked as designed in U.S. debt markets, (see infra Part II.B, discussing the "effects test"); and (2) did so by establishing a direct, territorial U.S. contact in furtherance of the conspiracy. 16 Case 17-1569, Document 485, 03/23/2018, 2263600, Page28 of 55 Accordingly, while Schwab made clear that remand for repleading is the min- imum relief to which plaintiffs are entitled, 883 F.3d at 89, the above allegations demonstrate that no repleading is necessary. The relevant forum for personal juris- diction in Schwab was solely California—not the United States as it is here—and as demonstrated above, defendants' U.S. conduct in furtherance of the conspiracy goes far beyond their California-specific conduct. And Schwab discussed only one kind of overt act in furtherance of the conspiracy—"Defendants' sales in California" id. at 87 (emphasis added)—while plaintiffs here have submitted numerous overt acts in the United States in furtherance of the conspiracy that easily satisfy Schwab's test. In the decision challenged, the district court considered those allegations and dis- missively characterized them all as "vacuous submissions derived from millions of pages of discovery." SPA21. Given the vagaries of the MDL process, there is no guarantee that any adverse holding on remand would be appealable until after a trial in this already-seven-years-old case. This Court should decide these issues now, and reverse. II. Schwab Holds That Defendants' U.S. Sales Create Personal Jurisdiction For Claims Arising From Those Sales, And Support Jurisdiction On Other Theories As Well. The opening brief explained that every defendant sold billions in price-fixed instruments into the United States, and that those sales were direct contacts "related to" plaintiffs' claims for jurisdictional purposes. After Schwab, two points about 17 Case 17-1569, Document 485, 03/23/2018, 2263600, Page29 of 55 those sales are incontrovertible. The first is that they conclusively establish a prima facie case of U.S. personal jurisdiction over antitrust claims—like those held by the OTC Class and direct-action plaintiffs—that arise directly from the price-fixed fi- nancial instruments defendants sold to the plaintiffs within the United States. The second is that these sales are jurisdictionally relevant: they (1) alone require at least leave to replead on a direct-contacts theory; and (2) support jurisdiction under a na- tionwide "effects test" as well. A. Schwab Holds Personal Jurisdiction Is Proper for Direct- Purchaser Antitrust Claims After Schwab, there is no personal-jurisdiction question regarding antitrust claims against defendants regarding instruments they sold directly to plaintiffs in the United States. See 883 F.3d at 83 ("[T]o the extent Schwab's claims concern trans- actions in California (as most of its surviving ones do), there is jurisdiction over the Defendants who are clearly identified as having made direct sales[.]"). As this Court explained, "[a]llegations of billions of dollars in transactions in California easily make out a prima facie showing of personal jurisdiction for claims relating to those transactions." Id. at 82. The Court's order thus "VACATE[D] those portions of the district court judgment that dismiss[ed] Schwab's state-law claims concerning prod- ucts sold in California for lack of personal jurisdiction." Id. at 98. On its face, that holding covers direct-purchasers' antitrust claims concerning defendants' U.S. sales. 18 Case 17-1569, Document 485, 03/23/2018, 2263600, Page30 of 55 In fact, the OTC Class is defined as those who "purchased in the United States, directly from a Defendant (or a Defendant's subsidiaries or affiliates), a fi- nancial instrument that paid interest indexed to LIBOR ('LIBOR-Based Instru- ment')." JA1023 (emphasis added). Named plaintiff Baltimore purchased a LI- BOR-based interest rate swap in the United States directly from Defendant UBS and UBS sent collusively suppressed payments on that swap to Baltimore (in Baltimore). JA1153-55; JA1166. Many direct-action plaintiffs also made their purchases di- rectly from the defendants. These antitrust claims arise from the plaintiff's purchase of an instrument whose price was fixed by defendants' conspiracy. See Gelboim, 823 F.3d at 775 ("Appellants have plausibly alleged antitrust injury. They have identified an 'illegal anticompetitive practice' (horizontal price-fixing), have claimed an actual injury placing appellants in a '"worse position"' as a consequence' of the Banks' conduct, and have demonstrated that their injury is one the antitrust laws were designed to prevent."). Without their purchase of these LIBOR-based instruments from defend- ants in the United States, these plaintiffs would not even have standing to assert a claim. Schwab thus confirms that U.S. personal jurisdiction exists over these claims. This Court explained in Gelboim that plaintiffs allege an "uncomplicated" conspiracy in which the banks "colluded to depress LIBOR, and thereby increased the cost to appellants, as buyers, of various LIBOR-based financial instruments, a 19 Case 17-1569, Document 485, 03/23/2018, 2263600, Page31 of 55 cost increase reflected in reduced rates of return." 823 F.3d at 771. All direct-pur- chaser plaintiffs are "buyers" of "the price-fixed instruments" in the United States, and they received the "reduced rates of return" in that forum, too. As a result, their antitrust claims are clearly "relat[ed] to those transactions." See Schwab, 883 F.3d at 82; In re Pub. Paper Antitrust Litig., 690 F.3d 51, 61 (2d Cir. 2012) (holding element of price-fixing claims is that "conspiracy caused injury to the plaintiff in the form of artificially inflated prices"). In their Rule 28(j) submission, defendants try to turn Schwab on its head. They assert that Schwab's holding is that, for most types of claims (like antitrust claims), direct-seller defendants are not susceptible to personal jurisdiction because those claims are "premised on defendants' alleged submission of suppressed LIBOR quotes" abroad. See ECF 470-1 (citing Schwab). But Defendants' argument makes no sense; all this case's claims are "premised on defendants' alleged submission of suppressed LIBOR quotes," and yet this Court held in Schwab that "most of [Schwab's] surviving" claims "concern transactions in California," creating personal jurisdiction over direct-seller defendants for all those claims. 883 F.3d at 83. De- fendants simply misread a sentence from Schwab regarding claims "premised solely on Defendants' false LIBOR submissions in London" that did not also "aris[e] out of [defendants'] sales of LIBOR-based instruments" in the United States. Id. Any 20 Case 17-1569, Document 485, 03/23/2018, 2263600, Page32 of 55 contrary interpretation of Schwab makes nonsense out of its ultimate holding. See supra p.18 (discussing Schwab's concluding order).2 Defendants' other responses are not only foreclosed by Schwab but illogical. For example, defendants argue that there is no causal relationship between any de- fendant's conduct in the United States and plaintiffs' antitrust claims, DPJBr. 28, but this is obviously false: Defendants' sale of price-fixed instruments in the United States clearly has "some sort of causal relationship" with claims arising out of those same price-fixed instruments. Moreover, personal jurisdiction is satisfied if any el- ement arises out of defendants' forum conduct, and here the injury suffered from the in-forum sale of price-fixed instruments is an element of an antitrust claim. See Licci, 732 F.3d at 169 (upholding specific jurisdiction "where at least one element arises from the [forum] contacts"); Pub. Paper, 690 F.3d at 61 (holding that element of price-fixing claim is "injury to the plaintiff in the form of artificially inflated prices"). 2 Schwab clarified that the "one claim" that did not track this analysis was a unique species of third-party, "false submission" fraud claim that did not "concern transactions" in California. 883 F.3d at 83-84. Defendants' own briefing recognized that this claim was one where "Schwab allege[d] that it relied on LIBOR when pur- chasing LIBOR-based instruments from third parties and that it unilaterally consid- ered LIBOR when deciding to buy fixed-rate instruments." Schwab-ECF 191 at 27 (defendants' emphasis). Accordingly, the Court noted that "Schwab assert[ed] its false submission claims against all Defendants" whether or not they or any other defendant "s[old] products to Schwab" in California or anywhere else. Id. at 84. 21 Case 17-1569, Document 485, 03/23/2018, 2263600, Page33 of 55 In fact, Schwab demonstrates that so long as a claim arises from a product defendants sold to plaintiffs in the United States, personal jurisdiction is available without regard to whether any other "element" of the claim or wrongful conduct occurred here. Schwab approved personal jurisdiction over Schwab's unjust enrich- ment claims based on directly-purchased LIBOR-based instruments. 883 F.3d at 83. "The elements of an unjust enrichment claim are 'the receipt of a benefit and [the] unjust retention of the benefit at the expense of another.'" Peterson v. Cellco P'ship, 80 Cal. Rptr. 3d 316, 323 (Ct. App. 2008). Neither of those requires proof of any "act" by a defendant inside the forum beyond the sale of the instrument there. And yet, this Court upheld personal jurisdiction on these claims because their causal con- nection to the in-forum sale is sufficient alone. Defendants also argue that the direct U.S. sales are not suit-related because direct U.S. sales were not "necessary" to a reputation-only conspiracy. See DPJBr. 30. But whether direct U.S. sales were "necessary" or not (and they were, see infra p.26), defendants made them, and then sent price-fixed payments to their U.S. coun- terparties. That is all that matters under Schwab. Ultimately, although defendants attempt to distinguish a wealth of on-point Second Circuit caselaw, they conspicuously fail to cite a single case holding that personal jurisdiction is improper where (as here) the defendant directly sold the price-fixed product to the plaintiff in the forum. Exercising personal jurisdiction in 22 Case 17-1569, Document 485, 03/23/2018, 2263600, Page34 of 55 that instance plainly comports with due process under a straightforward reading of cases from this Court and the Supreme Court. See Schwab, 883 F.3d at 82 (citing Chloé v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158, 171 (2d Cir. 2010) and Eades v. Kennedy, PC Law Offices, 799 F.3d 161, 168 (2d Cir. 2015)); see also McGee v. Int'l Life Ins. Co., 355 U.S. 220, 223 (1957) ("It is sufficient for purposes of due process that the suit was based on a contract which had substantial connection with that State. The contract was delivered in California; the premiums were mailed from there and the insured was a resident of that State when he died."); Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475-76 (1985) (holding that a defendant is subject to personal jurisdiction where he "'deliberately' has engaged in significant activities within a State, or has created 'continuing obligations' between himself and residents of the forum"). Schwab reversed the only identifiable decision to the contrary, plac- ing personal jurisdiction over claims concerning products defendants sold in the U.S. beyond further dispute.3 3 Both below and in this Court, defendants have not argued for any jurisdic- tional distinction between those defendants who sold directly to named plaintiffs and those who sold only to other members of the OTC class. Any such argument is thus waived, see Anderson Grp., LLC v. City of Saratoga Springs, 805 F.3d 34, 50 (2d Cir. 2015), and now moot, given the class's certification. Cf. Selman v. Harvard Med. Sch., 494 F. Supp. 603, 613 n.6 (S.D.N.Y. 1980) (refusing to consider contacts from unnamed class members' claims for class not yet certified). 23 Case 17-1569, Document 485, 03/23/2018, 2263600, Page35 of 55 B. For All Other Claims, Defendants' Sales and Other Forum Contacts Create Personal Jurisdiction Either Through Direct Contacts or Under the Effects Test. This Court held in Schwab that, in the complaint before it, there were insuffi- cient allegations that defendants' conspiracy was targeted particularly at the State of California to support personal jurisdiction there under the "effects test." 883 F.3d at 88. In so doing, however, this Court recognized that the result might be different with respect to the nationwide contacts that govern federal claims like those at issue here. See id. And, indeed, the result must be different here because, unlike with the lone State of California, there is ample evidence that "the defendant[s] expressly aimed [their] conduct at" the United States in particular, satisfying the test that Schwab laid out. See id. at 87. With the lens zoomed out to the nation as a whole, the pleadings here easily go beyond "mere foreseeability," id., and establish that the United States was a pri- mary target of defendants' conduct. Beyond knowing that the United States would be the obvious, predominant victim U.S. Dollar LIBOR manipulation, defendants also worked hard to preserve and take advantage of the U.S. effects of their conduct. To that end, (1) every defendant sold billions in LIBOR-based instruments in the forum and traded billions in LIBOR-based derivatives on the CME while their con- spiracy was suppressing USD-LIBOR here; (2) every defendant published its LI- BOR submissions in the United States and sought business through those 24 Case 17-1569, Document 485, 03/23/2018, 2263600, Page36 of 55 submissions; and (3) defendants initiated a in the United States to secure the fruits of the conspiracy here. Those direct forum contacts are sufficient for jurisdiction by themselves, and likewise suffice for purposes of the "effects test." 1. Defendants' billions in U.S. sales of price-fixed instruments demonstrate that their profit-motivated conspiracy was directed at this forum. Defendants do not dispute that they each sold billions in price-fixed financial instruments in the United States, and traded LIBOR-based derivatives, while they were suppressing LIBOR, profiting here from the conspiracy. Instead, they argue that, because the conspiracy was not profit-motivated, these profitable U.S. sales do not demonstrate that defendants aimed their conspiracy here. This argument is fore- closed by Gelboim, which expressly held that defendants had "a common motive to conspire—increased profits and the projection of financial soundness." 823 F.3d at 781-82. Indeed, defendants repeat here the exact same failed arguments they made in Gelboim. Compare Gelboim-ECF 464, at 49, with DPJBr. 36. Once defendants' profit motive is recognized, their billions in U.S. transac- tions clearly demonstrate that the conspiracy was aimed at the United States. Every defendant sold billions in LIBOR-based instruments in this forum, CA11-13; CA350-51; JA1037-38; JA1159, and given that defendants manipulated U.S. Dollar LIBOR, the plausible inference is that making profitable, price-fixed sales here was an express goal shared by all the conspiracy's members. In Schwab, the Court noted 25 Case 17-1569, Document 485, 03/23/2018, 2263600, Page37 of 55 that the complaint lacked "allegations that Defendants undertook such sales as part of the alleged conspiracy" and gave Schwab leave to replead. 883 F.3d at 87. Here, plaintiffs pleaded that the U.S. sales were part of the conspiracy. E.g., A1037-38. Moreover, this Court has held that conduct intentionally directed at multiple markets supports a finding that it was intentionally directed at each market—refuting defendants' untenable (and illogical) argument that because the alleged LIBOR sup- pression was directed virtually everywhere, they are subject to jurisdiction virtually nowhere. See EMI Christian Music Grp. v. MP3tunes, LLC, 844 F.3d 79, 98 (2d Cir. 2016) ("That MP3tunes served a national market, as opposed to a New York- specific market, has little bearing on our inquiry, as attempts to serve a nationwide market constitute 'evidence of [the defendant's] attempt to serve the New York mar- ket, albeit indirectly.'") (quoting Kernan v. Kurz-Hastings, Inc., 175 F.3d 236, 243 (2d Cir. 1999)); Chloé, 616 F.3d at 171 ("As Chloé correctly asserts, that Queen Bee's business attempted to serve a nationwide market does not diminish any pur- poseful contacts with Queen Bee's New York consumers."). In fact, the price-fixed sales in the United States were necessary to defendants' price-fixing conspiracy; it could not have survived without defendants' continuing billions in USD-LIBOR-based sales in this market. LIBOR is "the primary bench- mark for short term interest rates globally" and "occupied (and continues to occupy) a crucial role in the operation of financial markets." JA1027. If sixteen of the 26 Case 17-1569, Document 485, 03/23/2018, 2263600, Page38 of 55 world's largest banks—who just happened to constitute the USD-LIBOR panel— suddenly reduced or ended their U.S. sales of LIBOR-related instruments, it would have given away the conspiracy in a heartbeat. The sales were thus "in furtherance of the conspiracy." Indeed, the causal relationship between those sales and plain- tiffs' U.S. injuries is much closer than the New York-contacts found sufficient in cases like Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 305 F.3d 120, 128 (2d Cir. 2002) (holding Puerto Rico law firm subject to personal jurisdiction in New York where it "maintained an apartment in New York," "faxed newsletters regarding Puerto Rican legal developments to numerous persons in New York," "performed work for numerous New York clients and New York law firms," and "touted" in marketing materials "its 'close relationship with the Federal Reserve Bank of New York'"). 2. Defendants' reputation-motived conspiracy was also expressly aimed at, and carried out in, the United States. Moreover, as the opening brief explained, defendants' aim of projecting fi- nancial soundness was also "expressly aimed" at the United States, because defend- ants' reputational motive was intended to allow defendants to raise money from U.S. lenders, counterparties, and clients through U.S. debt markets during the financial crisis. Defendants' only substantive response is to call that argument "speculative," 27 Case 17-1569, Document 485, 03/23/2018, 2263600, Page39 of 55 but they do not even address the reports from two central banks supporting it. See PPJBr. 35.4 The in the United States, outlined above, supra p.16, di- rectly supports this conclusion. That defendants saw the need to reinforce LIBOR's standing in U.S. debt markets—through intentional contact with the forum—demon- strates both the kind of "purposeful availment" that suffices for personal jurisdiction and that U.S. debt markets were the obvious target of their reputational conspiracy. Defendants also ignore the role their intentional publication of their LIBOR submissions in the United States played in their conspiracy. Just as that conspiracy could not have achieved its profit objectives without U.S. sales, defendants could not achieve their "reputational" objectives without the daily publication of their in- dividual, manipulated LIBOR submissions into U.S. markets. Defendants' state- ment that "[a]ll the bank defendants would have needed to do in order to 'project' a false appearance of 'financial soundness' is quote an artificially low rate" (DPJBr. 2, 33) is plainly incorrect: Defendants could not have "project[ed] financial sound- ness" unless they also published their otherwise-anonymous, individual USD-LI- BOR submissions to U.S. investors. In other words, defendants' "reputational" 4 Defendants incorrectly assert that this argument was not raised below. But see SDNY-ECF 1524, at 19 ("[T]hese Defendants wanted to inflate their apparent creditworthiness in order to better their bargaining power with their U.S. counter- parties and their ability to engage in the lucrative U.S. market at all."). 28 Case 17-1569, Document 485, 03/23/2018, 2263600, Page40 of 55 objective would be completely thwarted if U.S.-based investors didn't actually pur- chase LIBOR-related instruments in reliance on the LIBOR rates the banks set. Publication of individual submissions in the United States was thus at least a but-for cause of plaintiffs' injuries. Just as the libelous statement had to be published to California readers in Calder, defendants' individual suppressed LIBOR submis- sions had to be published to investors in the United States to have any reputational effect. Walden, 134 S. Ct. at 1124 ("[T]he reputational injury caused by the defend- ants' story would not have occurred but for the fact that the defendants wrote an article for publication in California that was read by a large number of California citizens."). Notably, this individualized publication was not thrust upon defendants un- willingly. Rather, as members of the BBA and (for many) the FXMMC, defendants chose to require contemporaneous publication of each individual bank's LIBOR sub- mission. Indeed, defendants specifically rejected attempts to "anonymize" the LI- BOR submission process during the conspiracy period. Each defendant's transmis- sions of its individual submissions to the United States were thus direct U.S. contacts as well as overt U.S. acts in furtherance of the reputation-driven conspiracy, and they support the U.S. targeting of the conspiracy's effects as well. In Schwab, this Court expressly noted that effects-test jurisdiction may be proper in the United States as a whole even if not proper in California. See 883 F.3d 29 Case 17-1569, Document 485, 03/23/2018, 2263600, Page41 of 55 at 88 ("Indeed, even if actions to manipulate U.S. Dollar LIBOR were aimed at the United States as a whole, it would not necessarily follow that such actions were aimed at California." (citing J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 884 (2011)). And when the inquiry looks to whether defendants' actions were aimed at the United States in particular, this case looks very much like Calder. In Calder, the Supreme Court held that an author and editor of a libelous story could be sued in the plaintiff's home state of California because they "knew that the brunt of the injury would be felt" there, where the magazine had its widest circulation. 465 U.S. at 788- 89. And while the Court held that was not true for Schwab's California claims, it is true of the nationwide, federal claims at issue here. Defendants intentionally manip- ulated U.S. Dollar LIBOR, published their suppressed submissions in the United States, sold billions in price-fixed instruments in the United States, traded billions in USD-LIBOR-based derivatives on the CME, and used a U.S. to maintain USD-LIBOR's appearance of trustworthiness here. They at least surely "knew that the brunt of the injury" would be suffered in the United States. III. Defendants Cannot Defend The District Court's Failure To Find Jurisdiction Under Clayton Act §12. The opening brief explained that the Clayton Act §12 provides for worldwide service (and thus personal jurisdiction) for any antitrust suit where venue lies under that Act because defendants "transact business" in the forum. See 15 U.S.C. §22. Defendants' response nowhere disputes that plaintiffs here established venue in 30 Case 17-1569, Document 485, 03/23/2018, 2263600, Page42 of 55 several forums including the Southern District of New York, and that cases outside those forums could be transferred in any event (as they already have been for the MDL). See PPJBr. 68, 105 (chart). This concession has two consequences. A. U.S.-Resident Banks Are Obviously Subject to Congressionally Granted Personal Jurisdiction. First, it shows that it was manifest error to hold that the U.S. resident banks are only subject to general personal jurisdiction for antitrust claims in their home states. See SPA72-73. Congress has undisputed sovereignty over U.S. residents and can extend personal jurisdiction to any forum where its citizens transact business if it so chooses. Defendants' citations to Daimler AG v. Bauman, 134 S. Ct. 746 (2014), are thus beside the point, because the U.S. banks concededly meet its resi- dency test with respect to the congressional sovereign. The opening brief specifi- cally argued this point and it is unclear from defendants' response whether they even contest it. See DPJBr. 67 (acknowledging Daimler's rule that defendant is subject to general jurisdiction wherever it is "at home"). Reversal is thus required with re- spect to the dismissal of claims against the U.S. banks—whose home is the United States—on personal-jurisdiction grounds. B. The Foreign Banks Also Lack Any Constitutional Defense to Jurisdiction Under Clayton Act §12. Second, it isolates the uniquely high stakes of foreign defendants' position here. Congress chose to apply U.S. antitrust law to foreign defendants whose 31 Case 17-1569, Document 485, 03/23/2018, 2263600, Page43 of 55 antitrust violations cause "direct, substantial, and reasonably foreseeable" effects on U.S. commerce, see 15 U.S.C. §6a (making Sherman Act extraterritorial), and to extend its federal courts' authority to any such defendant that "transacts business" in a U.S. forum. No court has ever held that Congress lacks the power to subject foreigners doing business here to federal law and federal courts' jurisdiction; in fact, the Supreme Court has expressly "left open the question whether the Fifth Amend- ment imposes the same restrictions on the exercise of personal jurisdiction by a fed- eral court" that the Court has imposed on state courts under the Fourteenth Amend- ment. Bristol-Myers Squibb Co. v. Sup. Ct., 137 S. Ct. 1773, 1784 (2017). This Court should avoid taking this constitutional leap. 5 Indeed, the Supreme Court has expressly held that Congress has the power to subject a foreign corporation to personal jurisdiction over antitrust claims in the Southern District of New York, under §12, so long as the defendant transacts busi- ness of "any substantial character" there. United States v. Scophony Corp., 333 U.S. 795, 807, 817 (1948). That is this case. The Supreme Court has cautioned that, "[i]f a precedent of this Court has direct application in a case, yet appears to rest on rea- sons rejected in some other line of decisions, the Court of Appeals should follow the 5 Contra DPJBr. 62-63, these arguments were plainly preserved, see Dist. Ct. ECF-1521, at 4 & n.5, 29 & nn.80-81, 32-34 & App. B. In fact, defendants admit they responded to them below. See DPJBr. 63 n.17. And contra DPJBr. 63, this Court cannot avoid answering a plaintiff's preserved argument against dismissal be- cause the district court (erroneously) failed to address it. 32 Case 17-1569, Document 485, 03/23/2018, 2263600, Page44 of 55 case which directly controls, leaving to this Court the prerogative of overruling its own decisions." Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989). Particularly given Bristol-Myers' express reservation of the Fifth Amendment question, this Court cannot accept defendants' argument that Daimler and other state-law general-jurisdiction cases have overruled this precedent. Imposing a limitation on Congress's ability to grant general jurisdiction over corporations that transact business in the United States would be an extreme re- striction on congressional sovereignty with nothing in the text or structure of the Constitution to justify it. In state-jurisdictional cases under the Fourteenth Amend- ment, a "federalism interest" dividing authority among the several States "may be decisive" because letting one State try a case that arose from conduct in another risks the kind of interstate friction the Constitution seeks to prevent. See, e.g., Bristol- Myers, 137 S. Ct. at 1780-81. But defendants offer no reason why the Framers would have wanted to limit Congress's ability to extend the jurisdiction of its courts to foreigners who harm Americans transacting business in America. And while de- fendants are right that "the burden imposed on a defendant … does not vary based on whether the sovereign authority at issue is the federal government's or a State's," DPJBr. 65-66, this simply ignores that the test for general jurisdiction is unrespon- sive to how burdensome the litigation might be, and focuses instead on the sover- eign's authority over its territory. See Burnham v. Superior Court, 495 U.S. 604 33 Case 17-1569, Document 485, 03/23/2018, 2263600, Page45 of 55 (1990). The fundamental purpose of §12 was to provide personal jurisdiction in situations just like this one. See Scophony, 333 U.S. at 817. This Court should not be the first to invalidate that effect of this longstanding statute. IV. Defendants Have Waived Their Personal Jurisdiction Defense In Certain Cases. A. OTC Plaintiffs Defendants' brief fails to justify their failure to invoke personal jurisdiction in the OTC action when they urged this Court in Gelboim to rule for them on a new merits argument outside the scope of the appealed order. Defendants argue that OTC plaintiffs' position "apparently would have required defendants to refrain from filing a responsive brief in Gelboim in order to preserve their rights," but that is untrue. Defendants could have "preserve[d] their rights" by either (1) briefing their new per- sonal-jurisdiction defense along with the new merits argument they raised, or (2) ne- gotiating a non-waiver agreement with OTC Plaintiffs (as they did with all other plaintiffs). Indeed, defendants' brief leaves their three-page non-waiver agreement with every other plaintiff unexplained; perhaps it was because, prior to the now- vacated holding in LIBOR IV, no court had ever held direct sales of price-fixed prod- ucts to plaintiffs in the forum insufficient for personal jurisdiction. But whatever the reason, defendants chose to try to win on the merits without briefing or preserving their non-preclusive, jurisdictional argument, and "cannot now re-contest personal jurisdiction merely because [they are] dissatisfied with [their] tactical choice." 34 Case 17-1569, Document 485, 03/23/2018, 2263600, Page46 of 55 Corporacion Mexicana de Mantenimiento Integral v. Pemex Exploracion y Produc- cion, 832 F.3d 92, 101 (2d Cir. 2016). Defendants' cited cases are also inapposite. Their argument that forfeiture under Pemex requires "giv[ing] a plaintiff a reasonable expectation that it will defend the suit on the merits," 832 F.3d at 102, is unavailing because they went far beyond an "expectation" here and actually defended the suit on the merits. And Chevron Corp. v. Naranjo, 667 F.3d 232, 246 n.17 (2d Cir. 2012), does not (as defendants suggest, DPJBr. 70) permit seeking a merits ruling without raising personal jurisdic- tion whenever the latter argument covers fewer than all defendants. In Naranjo, the defendants raised their personal jurisdiction defenses; this Court was simply ex- plaining why it reached the merits first. Id. Unsurprisingly, neither Naranjo nor any other case holds that defendants can ask a court to rule for them on the merits and then turn around and contest that same court's jurisdiction. B. Bondholders Defendants admit they "defend[ed] [the] merits judgment[] they [had] ob- tained" for 16 months without disclosing their personal-jurisdiction defense in the bondholder action. DPJBr. 3.6 And they contest neither that they were required to 6 Daimler was decided January 14, 2014; the "earliest date" defendants ap- prised bondholders of a possible personal-jurisdiction defense was May 18, 2015. See JA7966. Bondholders have always maintained (contra DPJBr. 68) that Daimler, not Gucci Am., Inc. v. Weixing Li, 768 F.3d 122 (2d Cir. 2014), "opened up jurisdic- tional defenses that had previously been foreclosed." DPJBr. 11. For just this 35 Case 17-1569, Document 485, 03/23/2018, 2263600, Page47 of 55 assert that defense as soon as its cognizability was apparent, nor that—prior to Gel- boim—the 2013 decision was a non-final order. PPJBr. 73-75. Instead, defendants compound the district court's legal error in arguing that, because defendants had prevailed on the merits in district court, "the bondholder plaintiffs' case was over and could not be reopened for defendants to move to dis- miss the already-dismissed claims." DPJBr. 72; see SPA22 (holding addition of jurisdictional defense unnecessary because bondholder case "did not exist"). Rule 54(b) says the opposite—that any non-final order "does not end the action" and "may be revised at any time"7—and the district court at least had continuous jurisdiction for the 13 months between this Court's dismissal and the Supreme Court's judgment in Gelboim because "Supreme Court proceedings on writ of certiorari do not divest lower courts of jurisdiction absent a stay." PPJBr. 74. Indeed, at that time, it was defendants' position (as well as this Court's) that the judgment against bondholders was unappealable as non-final. Defendants thus have no explanation for failing to add their jurisdictional objection for more than a year—apart from the hope that they could game the procedural posture by trying to preserve a win on the merits first. reason, bondholders' agreement with defendants (see DPJBr. 71) prevented only further waiver or forfeiture for conduct "on or after May 18, 2015." JA7966. 7 See In re Nassau Cty. Strip Search Cases, 639 Fed. Appx. 746, 749 (2d Cir. 2016) (Rule 54(b) allows district court to revise "an interlocutory order at any time before the entry of final judgment for … an intervening change of controlling law"). 36 Case 17-1569, Document 485, 03/23/2018, 2263600, Page48 of 55 That tactical choice to defend on the merits constitutes forfeiture under Pemex. See supra p.34. In fact, not once during their merits defense did defendants complain that the ongoing proceedings "offend[ed] 'traditional notions of fair play and sub- stantial justice' or otherwise implicate[d] personal jurisdiction concerns," presuma- bly because they understood that was "incompatible with seeking merits-based re- lief." Pemex, 832 F.3d at 100-01 & n.3. The district court thus abused its discretion both by its error of law regarding Rule 54(b) and by sanctioning defendants' year- plus period of active merits litigation. See Hamilton v. Atlas Turner, Inc., 197 F.3d 58, 61-62 (2d Cir. 1999) (court abused discretion in not concluding defense forfeited by extensive participation in merits proceedings). C. Direct-Action Plaintiffs UBS concedes that it failed to assert a personal-jurisdiction defense to the antitrust claims by Darby, Prudential, and Salix (DPS) in its first motion to dismiss. It now tries to re-cast that strategic choice as no choice at all, arguing that the first motion was only "directed to plaintiffs' state-law claims." DPJBr. 72. But all de- fendants, including UBS, moved to dismiss the antitrust claims at that time. See SDNY-ECF 743-1, at 4-5. Moreover, the other foreign defendants did challenge jurisdiction on the antitrust claims by DPS at that same time. See SDNY-ECF 743-1, at 46-59; SDNY-ECF 745, at 22. There is no reason, beyond assent to jurisdiction, for UBS's failure to simply join in that defense. 37 Case 17-1569, Document 485, 03/23/2018, 2263600, Page49 of 55 Consolidated briefing is certainly no excuse (contra DPJBr. 72). Again, UBS could have easily preserved or joined in someone else's jurisdiction defense. In any event, the antitrust claims arise from the same subject matter as the common-law claims on which UBS admits it consented to jurisdiction (i.e., the suppression of LIBOR). So UBS's waiver results not just from its failure to brief or argue jurisdic- tion, but also its "submi[ssion] … to the jurisdiction of the court with respect to the adjudication of claims arising from the same subject matter." Pemex, 832 F.3d at 102. CONCLUSION This Court should reverse. 38 Case 17-1569, Document 485, 03/23/2018, 2263600, Page50 of 55 Dated: March 23, 2018 Respectfully submitted, By: /s/ Eric F. Citron By: /s/ Steven E. Fineman THOMAS C. GOLDSTEIN STEVEN E. FINEMAN ERIC F. CITRON MICHAEL J. MIARMI CHARLES H. DAVIS LIEFF CABRASER HEIMANN GOLDSTEIN & RUSSELL, P.C. & BERNSTEIN, LLP 7475 Wisconsin Avenue, Suite 850 250 Hudson Street, 8th Floor Bethesda, Maryland 20814 New York, New York 10013 (202) 362-0636 (212) 355-9500 – and – Attorneys for the Schwab Plaintiffs- Appellants and Plaintiffs-Appellants BRENDAN P. GLACKIN LIEFF CABRASER HEIMANN Ellen Gelboim and Linda Zacher & BERNSTEIN, LLP 275 Battery Street, 29th Floor San Francisco, California 94111 By: /s/ Barry Barnett (415) 956-1000 BARRY BARNETT SUSMAN GODFREY L.L.P. Attorneys for the Schwab Plaintiffs- 1000 Louisiana Street Appellants and Plaintiff-Appellant Bay Houston, Texas 77002 Area Toll Authority (713) 651-9366 – and – By: /s/ Richard W. Mithoff WILLIAM C. CARMODY RICHARD W. MITHOFF ARUN S. SUBRAMANIAN MITHOFF LAW GENG CHEN One Allen Center SUSMAN GODFREY L.L.P. Penthouse, Suite 3450 1301 Avenue of the Americas 500 Dallas Street New York, New York 10019 Houston, Texas 77002 (212) 336-8330 (713) 654-1122 – and – Attorneys for Plaintiff-Appellant DREW HANSEN City of Houston SUSMAN GODFREY L.L.P. 1201 Third Avenue Seattle, Washington 98101 (206) 516-3880 – and – By: /s/ Nanci E. Nishimura NANCI E. NISHIMURA Case 17-1569, Document 485, 03/23/2018, 2263600, Page51 of 55 MARC M. SELTZER COTCHETT, PITRE & MCCARTHY, LLP SUSMAN GODFREY L.L.P. 840 Malcolm Road, Suite 200 1901 Avenue of the Stars Burlingame, California 94010 Los Angeles, California 90067 (650) 697-6000 (310) 789-3100 – and – – and – ALEXANDER E. BARNETT MICHAEL D. HAUSFELD COTCHETT, PITRE & MCCARTHY, LLP HILARY K. SCHERRER 40 Worth Street, 10th Floor NATHANIEL C. GIDDINGS New York, New York 10013 HAUSFELD LLP (212) 201-6820 1700 K Street, NW Washington, DC 20006 Attorneys for Plaintiffs-Appellants City (202) 540-7200 of Houston, County of San Mateo, The San Mateo County Joint Powers Attorneys for Plaintiffs-Appellants Financing Authority, City of Richmond, City of New Britain, Mayor and The Richmond Joint Powers Financing City Council of Baltimore, Vistra Authority, Successor Agency to the Energy Corporation, Yale Richmond Community Redevelopment University, and Jennie Stuart Agency, City of Riverside, The Riverside Medical Center, Inc. Public Financing Authority, County of Mendocino, County of Sacramento, County of San Diego, County of By: /s/ Karen L. Morris Sonoma, David E. Sundstrom, in his KAREN L. MORRIS official capacity as Treasurer of the PATRICK F. MORRIS County of Sonoma, San Diego R. MICHAEL LINDSEY Association of Governments, East Bay MORRIS AND MORRIS LLC Municipal Utility District, and The COUNSELORS AT LAW Regents of the University of California 4023 Kennett Pike, #254 Wilmington, Delaware 19807 (302) 426-0400 By: /s/ David E. Kovel – and – DAVID E. KOVEL ANDREW M. MCNEELA DAVID H. WEINSTEIN KIRBY MCINERNEY LLP ROBERT S. KITCHENOFF 825 Third Avenue WEINSTEIN KITCHENOFF & ASHER LLC New York, New York 10022 100 South Broad Street, Suite 705 (212) 371-6600 Philadelphia, Pennsylvania 19110 (215) 545-7200 – and – Case 17-1569, Document 485, 03/23/2018, 2263600, Page52 of 55 Attorneys for Plaintiffs-Appellants CHRISTOPHER LOVELL Ellen Gelboim and Linda Zacher LOVELL STEWART HALEBIAN JACOBSON LLP 61 Broadway, Suite 501 By: /s/ Steig D. Olson New York, New York 10006 STEIG D. OLSON (212) 608-1900 DANIEL L. BROCKETT DANIEL P. CUNNINGHAM Attorneys for Plaintiffs-Appellants QUINN EMANUEL URQUHART Metzler Investment GmbH, Gary & SULLIVAN, LLP Francis, 303030 Trading LLC, Atlantic 51 Madison Avenue, 22nd Floor Trading USA, LLC, FTC Futures Fund New York, New York 10010 PCC Ltd., FTC Futures Fund SICAV, (212) 849-7000 and Nathaniel Haynes – and – JEREMY ANDERSEN By: /s/ David C. Frederick QUINN EMANUEL URQUHART DAVID C. FREDERICK & SULLIVAN, LLP ANDREW C. SHEN 865 South Figueroa Street, 10th Floor KELLOGG, HANSEN, TODD, FIGEL Los Angeles, California 90017 & FREDERICK, P.L.L.C. (213) 443-3000 1615 M Street, NW, Suite 400 Washington, DC 20036 Attorneys for Plaintiffs-Appellants (202) 326-7900 The City of Philadelphia and the Pennsylvania Intergovernmental Attorneys for Plaintiff-Appellant Cooperation Authority National Credit Union Administration Board By: /s/ Daniel L. Brockett DANIEL L. BROCKETT STEIG D. OLSON DANIEL P. CUNNINGHAM QUINN EMANUEL URQUHART & SULLIVAN, LLP 51 Madison Avenue, 22nd Floor New York, New York 10010 (212) 849-7000 – and – Case 17-1569, Document 485, 03/23/2018, 2263600, Page53 of 55 JEREMY ANDERSEN QUINN EMANUEL URQUHART & SULLIVAN, LLP 865 South Figueroa Street, 10th Floor Los Angeles, California 90017 (213) 443-3000 Attorneys for Plaintiffs-Appellants Prudential Investment Portfolios 2, Darby Financial Products, Capital Ventures International, and Salix Capital US Inc. Case 17-1569, Document 485, 03/23/2018, 2263600, Page54 of 55 CERTIFICATE OF COMPLIANCE 1. This document complies with the type-volume limit as set out in this Court's Aug. 24, 2017 Order (17-1569 Doc. 137) because, excluding the parts of the documents exempted by Fed. R. App. P. 32(f), the two reply briefs collectively con- tain 14,000 words or less. This document contains 8,886 words, excluding the parts of the document exempted by Fed. R. App. P. 32(f). 2. This document complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because this document has been prepared in a proportionally spaced typeface using Word 2016 in 14-point Times New Roman. /s/ Eric F. Citron Eric F. Citron Case 17-1569, Document 485, 03/23/2018, 2263600, Page55 of 55 CERTIFICATE OF SERVICE I hereby certify that I served a copy of the foregoing brief on all parties on March 23, 2018, through the Court's CM/ECF system. Counsel for all parties are registered users of that system. /s/ Eric F. Citron Eric F. Citron

RESPONSE TO MOTION, [{{478}}], on behalf of Appellee JPMorgan Chase & Co. and JPMorgan Chase Bank, N.A., FILED. Service date 03/26/2018 by CM/ECF. [2265021] [17-1569] [Entered: 03/26/2018 05:39 PM]

Case 17-1569, Document 487-1, 03/26/2018, 2265021, Page1 of 16 17-1569 (L) 17-1915(CON), 17-1989(CON), 17-2056(CON), 17-2343(CON), 17-2347(CON), 17-2351(CON), 17-2352(CON), 17-2360(CON), 17-2376(CON), 17-2381(CON), 17-2383(CON), 17-2413(CON) IN THE United States Court of Appeals FOR THE SECOND CIRCUIT IN RE LIBOR-BASED FINANCIAL INSTRUMENTS ANTITRUST LITIGATION (Caption continued on inside covers) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK RESPONSE IN SUPPORT OF PLAINTIFFS-APPELLANTS' MOTION TO FILE PERSONAL JURISDICTION REPLY BRIEF UNDER SEAL HOGAN LOVELLS US LLP SIMPSON THACHER & BARTLETT LLP 555 13th Street, N.W. 425 Lexington Avenue Washington, D.C. 20004 New York, New York 10017 875 Third Avenue 900 G Street NW New York, New York 10022 Washington, D.C. 20001 Attorneys for Defendants-Appellees Lloyds Attorneys for Defendants-Appellees Banking Group plc and HBOS plc JPMorgan Chase & Co. and JPMorgan Chase Bank, N.A. (Appearances continued inside) Case 17-1569, Document 487-1, 03/26/2018, 2265021, Page2 of 16 SCHWAB SHORT-TERM BOND MARKET FUND, SCHWAB TOTAL BOND MARKET FUND, SCHWAB U.S. DOLLAR LIQUID ASSETS FUND, SCHWAB MONEY MARKET FUND, SCHWAB VALUE ADVANTAGE MONEY FUND, SCHWAB RETIREMENT ADVANTAGE MONEY FUND, SCHWAB INVESTOR MONEY FUND, SCHWAB CASH RESERVES, SCHWAB ADVISOR CASH RESERVES, CHARLES SCHWAB BANK, N.A., CHARLES SCHWAB & CO., INC., SCHWAB YIELDPLUS FUND, SCHWAB YIELDPLUS FUND LIQUIDATION TRUST, THE CHARLES SCHWAB CORPORATION, CITY OF NEW BRITAIN, on behalf of itself and all others similarly situated, MAYOR AND CITY COUNCIL OF BALTIMORE, CITY OF HOUSTON, VISTRA ENERGY CORPORATION, YALE UNIVERSITY, JENNIE STUART MEDICAL CENTER, INC., FTC FUTURES FUND PCC LTD, on behalf of themselves and all others similarly situated, NATIONAL CREDIT UNION ADMINISTRATION BOARD, as Liquidating Agent of U.S. Central Federal Credit Union, Western Corporate Federal Credit Union, Members United Corporate Federal Credit Union, Southwest Corporate Federal Credit Union, and Constitution Corporate Federal Credit Union, PENNSYLVANIA INTERGOVERNMENTAL COOPERATION AUTHORITY, CITY OF PHILADELPHIA, DARBY FINANCIAL PRODUCTS, SALIX CAPITAL US INC., CAPITAL VENTURES INTERNATIONAL, PRUDENTIAL INVESTMENT PORTFOLIOS 2, FKA DRYDEN CORE INVESTMENT FUND, on behalf of Prudential Core Short-Term Bond Fund, BAY AREA TOLL AUTHORITY, CALIFORNIA PUBLIC PLAINTIFFS, LINDA ZACHER, ELLEN GELBOIM, on behalf of herself and all others similarly situated, GARY FRANCIS, METZLER INVESTMENT GMBH, on behalf of itself and all others similarly situated, 303030 TRADING LLC, ATLANTIC TRADING USA, LLC, FTC FUTURES FUND SICAV, on behalf of themselves and all others similarly situated, NATHANIEL HAYNES, COUNTY OF SONOMA, THE SAN MATEO COUNTY JOINT POWERS FINANCING AUTHORITY, RICHMOND JOINT POWERS FINANCING AUTHORITY, SUCCESSOR AGENCY TO THE RICHMOND COMMUNITY REDEVELOPMENT AGENCY, RIVERSIDE PUBLIC FINANCING AUTHORITY, DAVID E. SUNDSTROM, in his official capacity as Treasurer of the county of Sonoma for and on behalf of the Sonoma County Treasury Pool Investment, EAST BAY MUNICIPAL UTILITY DISTRICT, REGENTS OF THE UNIVERSITY OF CALIFORNIA, Plaintiffs-Appellants, CARPENTERS PENSION FUND OF WEST VIRGINIA, CITY OF DANIA BEACH POLICE & FIREFIGHTERS' RETIREMENT SYSTEM, individually and on behalf of all others similarly situated, RAVAN INVESTMENTS, LLC, RICHARD HERSHEY, JEFFREY LAYDON, on behalf of himself and all others similarly situated, ROBERTO E. CALLE GRACEY, AVP PROPERTIES, LLC, COMMUNITY BANK & TRUST, BERKSHIRE BANK, individually and on behalf of all others similarly situated, ELIZABETH LIEBERMAN, Case 17-1569, Document 487-1, 03/26/2018, 2265021, Page3 of 16 on behalf of themselves and all other similarly situated, TODD AUGENBAUM, on behalf of themselves and all others similarly situated, 33-35 GREEN POND ROAD ASSOCIATES, LLC, on behalf of itself and all others similarly situated, COURTYARD AT AMWELL II, LLC, ANNIE BELL ADAMS, on behalf of herself and all others similarly situated, JILL COURT ASSOCIATES GROUP, INC., PRINCIPAL FINANCIAL SERVICES, INC., PRINCIPAL LIFE INSURANCE COMPANY, PRINCIPAL CAPITAL INTEREST ONLY I, LLC, PRINCIPAL COMMERCIAL FUNDING, LLC, PRINCIPAL COMMERCIAL FUNDING II, LLC, PRINCIPAL REAL ESTATE INVESTORS, LLC, VITO SPILLONE, BRIAN MCCORMICK, MAXWELL VAN DE VELDE, individually and on behalf of all others similarly situated, INDEPENDENCE TRADING, INC., INSULATORS AND ASBESTOS WORKERS LOCAL #14, individually and on behalf of all others similarly situated, COURMONT & WAPNER ASSOCIATES, L.P., on behalf of itself and all others similarly situated, SALIX CAPITAL LTD., FTC CAPITAL GMBH, on behalf of themselves and all others similarly situated, CITY OF NEW BRITAIN FIREFIGHTERS' AND POLICE BENEFIT FUND, DIRECT ACTION PLAINTIFFS, FEDERAL NATIONAL MORTGAGE ASSOCIATION, TRIAXX PRIME CDO 2006-1, LTD., TRIAXX PRIME CDO 2006-2, LTD., TRIAXX PRIME CDO 2007-1, LTD., FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver, FRAN P. GOLDSLEGER, NATIONAL ASBESTOS WORKERS PENSION FUND, PENSION TRUST FOR OPERATING ENGINEERS, HAWAII ANNUITY TRUST FUND FOR OPERATING ENGINEERS, CEMENT MASONS' INTERNATIONAL ASSOCIATION EMPLOYEES' TRUST FUND, individually and on behalf of all others similarly situated, AXIOM INVESTMENT ADVISORS, LLC, AXIOM HFT LLC, AXIOM INVESTMENT ADVISORS HOLDINGS L.P., AXIOM INVESTMENT COMPANY, LLC, AXIOM INVESTMENT COMPANY HOLDINGS L.P., AXIOM FX INVESTMENT FUND, L.P., AXIOM FX INVESTMENT FUND II, L.P., AXIOM FX INVESTMENT 2X FUND, L.P., EPHRAIM F. GILDOR, GILDOR FAMILY ADVISORS L.P., GILDOR FAMILY COMPANY L.P., GILDOR MANAGEMENT, LLC, PRUDENTIAL CORE TAXABLE MONEY MARKET FUND, Plaintiffs, — against — LLOYDS BANKING GROUP PLC, BANK OF AMERICA CORPORATION, THE ROYAL BANK OF SCOTLAND GROUP PLC, CITIBANK, N.A., CREDIT SUISSE GROUP AG, DEUTSCHE BANK AG, JPMORGAN CHASE & CO., THE NORINCHUKIN BANK, HBOS PLC, ROYAL BANK OF CANADA, HSBC BANK PLC, CITIGROUP INC., COOPERATIEVE RABOBANK U.A., FKA COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., JPMORGAN CHASE BANK, N.A., THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., BANK OF AMERICA, N.A., BARCLAYS BANK PLC, WESTDEUTSCHE Case 17-1569, Document 487-1, 03/26/2018, 2265021, Page4 of 16 IMMOBILIENBANK AG, PORTIGON AG, FKA WESTLB AG, HSBC HOLDINGS PLC, WESTLB AG, SOCIETE GENERALE, COOPERATIEVE CENTRALE RAIFFEISEN - BOERENLEENBANK B.A., CREDIT SUISSE INTERNATIONAL, CREDIT SUISSE (USA), INC., THE ROYAL BANK OF SCOTLAND PLC, CREDIT SUISSE AG, HSBC SECURITIES (USA) INC., HSBC BANK USA, N.A., HSBC FINANCE CORPORATION, BARCLAYS CAPITAL INC., HSBC USA, INC., THE HONG KONG AND SHANGHAI BANKING CORPORATION LTD., RBC CAPITAL MARKETS LLC, BANK OF AMERICA N.A., RABOBANK GROUP, UBS SECURITIES LLC, CITI SWAPCO INC., BBA ENTERPRISES, LTD., BBA LIBOR, LTD., BRITISH BANKERS' ASSOCIATION, MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, FKA BANC OF AMERICA SECURITIES, LLC, CITIGROUP FINANCIAL PRODUCTS, INC., J.P. MORGAN BANK DUBLIN PLC, FKA BEAR STEARNS BANK PLC, UBS LIMITED, CREDIT SUISSE GROUP INTERNATIONAL, UBS AG, Defendants-Appellees, CREDIT AGRICOLE S.A., SUMITOMO MITSUI BANKING CORPORATION, BNP PARIBAS S.A., RBS CITIZENS, N.A., incorrectly sued as the Charter One Bank NA, RBS CITIZENS, N.A., CREDIT SUISSE GROUP, NA, CITIZENS BANK OF MASSACHUSETTS, AGENT OF RBS CITIZENS BANK, NA, BARCLAYS US FUNDING LLC, DEUTSCHE BANK FINANCIAL LLC, DOES 1 THROUGH 10, SOCIETE GENERALE CORPORATE & INVESTMENT BANKING, NATIONAL ASSOCIATION, STEPHANIE NAGEL, JOHN DOES #1- #5, NATIONAL COLLEGIATE STUDENT LOAN TRUST 2007-1, CHASE BANK USA, N.A., J.P. MORGAN CLEARING CORP., BANK OF AMERICA SECURITIES LLC, CENTRALE RAIFFEISEN-BERENLEENBANK B.A., UBS AG, ROYAL BANK OF SCOTLAND GROUP PLC, BANK OF NOVA SCOTIA, CREDIT SUISSE SECURITIES (USA) LLC, RBS GROUP, LLOYDS BANK PLC, FKA LLOYDS BANK PLC, CITIZENS BANK N.A., CREDIT SUISSE SECURITIES (USA) LLC, CITIGROUP GLOBAL MARKETS, INC., THE ROYAL BANK OF SCOTLAND PLC, LLOYDS BANK PLC, CITIGROUP FUNDING, INC., SOCIETE GENERALE S.A., BARCLAYS PLC, J.P. MORGAN SECURITIES LLC, FKA J.P. MORGAN SECURITIES INC., DEUTSCHE BANK SECURITIES INCORPORATED, BANC OF AMERICA SECURITIES, LLC, RBS SECURITIES INC., FKA GREENWICH CAPITAL MARKETS, INC., LLOYDS TSB BANK PLC, ICAP PLC, J.P. MORGAN MARKETS LTD., BANK OF AMERICA HOME LOANS, MERRILL LYNCH CAPITAL SERVICES, INC., CITIGROUP GLOBAL MARKETS LIMITED, MERRILL LYNCH & CO., INC., MERRILL LYNCH INTERNATIONAL BANK, LTD., BEAR STEARNS CAPITAL MARKETS, INC., BARCLAYS CAPITAL (CAYMAN) LIMITED, INSTITUTE OF INTERNATIONAL BANKERS, CLEARING HOUSE ASSOCIATION L.L.C., Defendants. Case 17-1569, Document 487-1, 03/26/2018, 2265021, Page5 of 16 DAVIS POLK & WARDWELL LLP COVINGTON & BURLING LLP 450 Lexington Avenue The New York Times Building New York, New York 10017 620 Eighth Avenue New York, New York 10018 Attorneys for Defendants-Appellees 850 Tenth Street, N.W. Bank of America Corporation and Washington, D.C. 20001 Bank of America, N.A. CLEARY GOTTLIEB STEEN & HAMILTON LLP SULLIVAN & CROMWELL LLP One Liberty Plaza 1700 New York Avenue, N.W., New York, New York 10006 Suite 700 Washington, D.C. 20006 Attorneys for Defendants-Appellees Citibank, N.A. and Citigroup Inc. Attorneys for Defendant-Appellee The Bank of Tokyo-Mitsubishi UFJ, Ltd. SULLIVAN & CROMWELL LLP 125 Broad Street New York, New York 10004 MILBANK, TWEED, HADLEY & MCCLOY LLP BOIES SCHILLER FLEXNER LLP 28 Liberty Street 575 Lexington Avenue New York, New York 10005 New York, New York 10022 1401 New York Avenue, N.W. Attorneys for Defendant-Appellee Washington, D.C. 20005 Coöperatieve Rabobank U.A. (f/k/a Coöperatieve Centrale Raiffeisen- Attorneys for Defendant-Appellee Boerenleenbank B.A.) Barclays Bank PLC CAHILL GORDON & REINDEL LLP HUGHES HUBBARD & REED LLP 80 Pine Street One Battery Park Plaza New York, New York 10005 New York, New York 10004 Attorneys for Defendant-Appellees Attorneys for Defendants-Appellees Credit Suisse Group AG, Credit Suisse Portigon AG (f/k/a WestLB AG) and International, Credit Suisse (USA), Inc., Westdeutsche ImmobilienBank AG Credit Suisse AG, and Credit Suisse Securities (USA) LLC Case 17-1569, Document 487-1, 03/26/2018, 2265021, Page6 of 16 PAUL, WEISS, RIFKIND, WHARTON & LOCKE LORD LLP GARRISON LLP 3 World Financial Center 1285 Avenue of the Americas New York, New York 10281 New York, New York 10019 2200 Ross Avenue, Suite 2800 Dallas, Texas 75201 Attorneys for Defendant-Appellee 111 South Wacker Drive Deutsche Bank AG Chicago, Illinois 60606 Attorneys for Defendants-Appellees GIBSON, DUNN & CRUTCHER LLP HSBC Holdings plc, HSBC Bank plc, 200 Park Avenue and HSBC Bank USA, N.A. New York, New York 10166 Attorneys for Defendant-Appellee BALLARD & LITTLEFIELD, LLP UBS AG 3700 Buffalo Speedway, Suite 250 Houston, Texas 77098 SIDLEY AUSTIN LLP Attorneys for Defendants-Appellees 787 Seventh Avenue HSBC Holdings plc and HSBC Bank New York, New York 10019 plc Attorneys for Defendant-Appellee The Norinchukin Bank WILMER CUTLER PICKERING HALE AND DORR LLP 250 Greenwich Street KATTEN MUCHIN ROSENMAN LLP New York, New York 10007 525 West Monroe Street Chicago, Illinois 60661 Attorneys for Defendants-Appellees The Royal Bank of Scotland Group plc Attorneys for Defendant-Appellee Royal and The Royal Bank of Scotland plc. Bank of Canada LATHAM & WATKINS LLP MAYER BROWN LLP 885 Third Avenue 1221 Avenue of the Americas New York, New York 10022 New York, New York 10020 Attorneys for Defendants-Appellees Attorneys for Defendant-Appellee British Bankers' Association, BBA Société Générale Enterprises Ltd., and BBA LIBOR Ltd. Case 17-1569, Document 487-1, 03/26/2018, 2265021, Page7 of 16 Defendants-Appellees respectfully submit this response in support of Plaintiffs-Appellants' Motion to File Personal Jurisdiction Reply Brief Under Seal ("Motion"), Doc. No. 478. On November 22, 2017, Plaintiffs-Appellants moved for the same relief as to their opening personal jurisdiction brief, Doc. No. 393, which motion this Court referred to the merits panel, Doc. No. 459. Because the issues are substantially identical, Defendants-Appellees incorporate by reference their prior Response in Support of Plaintiffs-Appellants' Motion to File Personal Jurisdiction Brief Under Seal ("Sealing Brief"), Doc No. 399, and write only to (1) submit to the Court a proposed redacted version of Plaintiffs-Appellants' Personal Jurisdiction Reply Brief for public filing, annexed hereto as Exhibit A,1 and (2) respond briefly to two arguments raised for the first time in the instant Motion and in Plaintiffs-Appellants' Reply Regarding Motion to File Personal Jurisdiction Brief Under Seal ("Sealing Reply"), Doc. No. 404. ARGUMENT As with Plaintiffs-Appellants' prior motion, this Motion concerns limited redactions (the "Redacted Material") in Plaintiffs-Appellants' personal jurisdiction reply brief that are necessary to protect proprietary information that the 1 On March 23, 2018, Plaintiffs-Appellants filed a redacted public version of their reply personal jurisdiction brief. Doc. No. 485. Defendants-Appellees believe more modest redactions are sufficient to protect the confidential information sealed by the District Court, and therefore respectfully ask the Court to the accept the annexed redacted version of Plaintiffs-Appellants' reply brief for public filing. See Ex. A. Case 17-1569, Document 487-1, 03/26/2018, 2265021, Page8 of 16 District Court, in its discretion, determined should be placed under seal.2 As explained in Defendants-Appellees' earlier Sealing Brief, Plaintiffs-Appellants have forfeited any objection by failing to oppose sealing in the District Court (and indeed, as to some of the Redacted Material, affirmatively requested that relief), see Sealing Brief at 2–4; alternatively, and in any event, the District Court did not abuse its discretion in sealing the Redacted Material, see Sealing Brief at 5–7. Plaintiffs-Appellants nevertheless contend in the Motion and in their Sealing Reply that this Court should disallow the redactions for two novel reasons.3 First, Plaintiffs-Appellants argue that waiver is impossible because the District Court's sealing orders and the redactions here are analytically distinct: "Plaintiffs are not seeking to unseal their briefing before the district court or the underlying exhibits in the Confidential Appendix—Plaintiffs simply oppose sealing the portions of their reply brief before this Court that quote from those exhibits." Motion at 3. This distinction is untenable. Plaintiffs-Appellants ask the Court to publicly release the Redacted Material. If this Court grants Plaintiffs- Appellants' request, then the Court will necessarily overrule the District Court's 2 Redacted Material appears on portions of 8 pages of Plaintiffs-Appellants' 38-page reply brief on personal jurisdiction, and on 5 pages of their 76-page opening brief on personal jurisdiction. See Ex. A at 6, 8–14; Sealing Brief at 1 n.1. No redactions are requested as to Plaintiffs-Appellants' separate 42-page opening brief or 23-page reply brief regarding antitrust standing. 3 All other arguments in Plaintiffs-Appellants' Sealing Reply are fully addressed in Defendants-Appellees' Sealing Brief. 2 Case 17-1569, Document 487-1, 03/26/2018, 2265021, Page9 of 16 determination that the same material should be sealed. This is presumably why this Court has, in at least one published decision, "granted defendants' motion to seal all documents submitted in this court that were also subject to the district court's sealing order." DiRussa v. Dean Witter Reynolds Inc., 121 F.3d 818, 821 (2d Cir. 1997). Second, Plaintiffs-Appellants argue that, if the Court finds no waiver and reaches the merits, it should hold the District Court abused its discretion in issuing the sealing orders because it summarily denied a later application to unseal. Sealing Reply at 9. To be clear: The sealing orders that accompanied the briefing of the decision on appeal were issued between August 9, 2016 and November 7, 2016. See Sealing Brief at 3 & n.3. These are the orders that Plaintiffs-Appellants now dispute. The application to unseal that Plaintiffs-Appellants cite—which concerned their response to a discovery dispute, not the motion to dismiss underlying this appeal, see S.D.N.Y. Docket No. 11-md-2262, Doc. No. 1854— was made on April 17, 2017 and denied on April 26, 2017, see S.D.N.Y. Docket No. 11-md-2262, Doc. No. 1875. The District Court plainly could not have abused its discretion in issuing sealing orders between August 9, 2016 and November 7, 2016—most of which orders Plaintiffs-Appellants requested—by denying Plaintiffs-Appellants' motion to unseal unrelated papers nearly six months later. 3 Case 17-1569, Document 487-1, 03/26/2018, 2265021, Page10 of 16 CONCLUSION For all the reasons stated above and in Defendants-Appellees' Sealing Brief, the Motion should be granted. Dated: New York, New York March 26, 2018 Respectfully submitted, /s/ Neal Kumar Katyal /s/ Paul C. Gluckow Neal Kumar Katyal Mary Beth Forshaw Eugene A. Sokoloff Paul C. Gluckow HOGAN LOVELLS US LLP Alan C. Turner 555 13th Street, N.W. Sarah E. Phillips Washington, D.C. 20004 SIMPSON THACHER & Telephone: (202) 637-5600 BARTLETT LLP neal.katyal@hoganlovells.com 425 Lexington Avenue New York, New York 10017 Marc J. Gottridge Telephone: (212) 455-2000 Lisa J. Fried mforshaw@stblaw.com Benjamin A. Fleming 875 Third Avenue Abram J. Ellis New York, New York 10022 900 G Street NW Washington, D.C. 20001 Attorneys for Defendants-Appellees Telephone: (202) 636-5500 Lloyds Banking Group plc and HBOS plc Attorneys for Defendants-Appellees JPMorgan Chase & Co. and JPMorgan Chase Bank, N.A. 4 Case 17-1569, Document 487-1, 03/26/2018, 2265021, Page11 of 16 /s/ Arthur J. Burke /s/ Andrew A. Ruffino Arthur J. Burke Andrew A. Ruffino Paul S. Mishkin COVINGTON & BURLING LLP Adam G. Mehes The New York Times Building DAVIS POLK & WARDWELL LLP 620 Eighth Avenue 450 Lexington Avenue New York, New York 10018 New York, New York 10017 Telephone: (212) 841-1000 Telephone: (212) 450-4000 aruffino@cov.com arthur.burke@davispolk.com Alan M. Wiseman Attorneys for Defendants-Appellees 850 Tenth Street, N.W. Bank of America Corporation and Bank Washington, D.C. 20001 of America, N.A. Telephone: (202) 662-6000 Lev Dassin /s/ Daryl A. Libow Jonathan S. Kolodner Daryl A. Libow CLEARY GOTTLIEB STEEN & Christopher M. Viapiano HAMILTON LLP SULLIVAN & CROMWELL LLP One Liberty Plaza 1700 New York Avenue, N.W., New York, New York 10006 Suite 700 Telephone: (212) 225-2000 Washington, D.C. 20006 ldassin@cgsh.com Telephone: (202) 956-7500 libowd@sullcrom.com Attorneys for Defendants-Appellees Citibank, N.A. and Citigroup Inc. Attorneys for Defendant-Appellee The Bank of Tokyo-Mitsubishi UFJ, Ltd. 5 Case 17-1569, Document 487-1, 03/26/2018, 2265021, Page12 of 16 /s/ David R. Gelfand /s/ David H. Braff David R. Gelfand David H. Braff Robert C. Hora Yvonne S. Quinn Jonathan Ohring Jeffrey T. Scott Mark D. Villaverde Matthew J. Porpora MILBANK, TWEED, HADLEY& SULLIVAN & CROMWELL LLP McCLOY LLP 125 Broad Street 28 Liberty Street New York, New York 10004 New York, New York 10005 Telephone: (212) 558-4000 Telephone: (212) 530-5000 braffd@sullcrom.com dgelfand@milbank.com Jonathan D. Schiller Attorneys for Defendant-Appellee Leigh M. Nathanson Coöperatieve Rabobank U.A. (f/k/a Amos Friedland Coöperatieve Centrale Raiffeisen- BOIES SCHILLER FLEXNER LLP Boerenleenbank B.A.) 575 Lexington Avenue New York, New York 10022 Telephone: (212) 446-2300 /s/ Herbert S. Washer jschiller@bsfllp.com Herbert S. Washer Elai Katz Michael Brille Joel Kurtzberg 1401 New York Avenue, N.W. Jason M. Hall Washington, D.C. 20005 Adam S. Mintz CAHILL GORDON & REINDEL LLP Attorneys for Defendant-Appellee 80 Pine Street Barclays Bank PLC New York, New York 10005 Telephone: (212) 701-3000 hwasher@cahill.com /s/ Christopher M. Paparella Christopher M. Paparella Attorneys for Defendant-Appellees Marc A. Weinstein Credit Suisse Group AG, Credit Suisse HUGHES HUBBARD & REED LLP International, Credit Suisse (USA), Inc., One Battery Park Plaza Credit Suisse AG, and Credit Suisse New York, New York 10004 Securities (USA) LLC Telephone: (212) 837-6000 chris.paparella@hugheshubbard.com Attorneys for Defendants-Appellees Portigon AG (f/k/a WestLB AG) and Westdeutsche ImmobilienBank AG 6 Case 17-1569, Document 487-1, 03/26/2018, 2265021, Page13 of 16 /s/ Moses Silverman /s/ Gregory T. Casamento Moses Silverman Gregory T. Casamento Aidan Synnott R. James DeRose III PAUL, WEISS, RIFKIND, WHARTON LOCKE LORD LLP & GARRISON LLP 3 World Financial Center 1285 Avenue of the Americas New York, New York 10281 New York, New York 10019 Telephone: (212) 812-8325 Telephone: (212) 373-3000 gcasamento@lockelord.com msilverman@paulweiss.com Roger B. Cowie Attorneys for Defendant-Appellee 2200 Ross Avenue, Suite 2800 Deutsche Bank AG Dallas, Texas 75201 J. Matthew Goodin /s/ Mark A. Kirsch Julia C. Webb Mark A. Kirsch 111 South Wacker Drive Eric J. Stock Chicago, Illinois 60606 Jefferson E. Bell GIBSON, DUNN & CRUTCHER LLP Attorneys for Defendants-Appellees 200 Park Avenue HSBC Holdings plc, HSBC Bank plc, New York, New York 10166 and HSBC Bank USA, N.A. (except in Telephone: (212) 351-4000 City of Houston v. Bank of America mkirsch@gibsondunn.com Corp., et al., Dkt. No. 17-2376) Attorneys for Defendant-Appellee UBS AG /s/ Donald R. Littlefield Donald R. Littlefield BALLARD & LITTLEFIELD, LLP 3700 Buffalo Speedway, Suite 250 Houston, Texas 77098 Telephone: (713)403-6400 dlittlefield@ballardlittlefield.com Attorneys for Defendants-Appellees HSBC Holdings plc and HSBC Bank plc (in City of Houston v. Bank of America Corp., et al., Dkt. No. 17-2376) 7 Case 17-1569, Document 487-1, 03/26/2018, 2265021, Page14 of 16 /s/ Andrew W. Stern /s/ David S. Lesser Andrew W. Stern David S. Lesser Alan M. Unger WILMER CUTLER PICKERING Tom A. Paskowitz HALE AND DORR LLP SIDLEY AUSTIN LLP 250 Greenwich Street 787 Seventh Avenue New York, New York 10007 New York, New York 10019 Telephone: (212) 230-8800 Telephone: (212) 839-5300 david.lesser@wilmerhale.com astern@sidley.com Attorneys for Defendants-Appellees Attorneys for Defendant-Appellee The Royal Bank of Scotland Group plc The Norinchukin Bank and The Royal Bank of Scotland plc. /s/ Arthur W. Hahn /s/ Richard D. Owens Arthur W. Hahn Richard D. Owens Christian T. Kemnitz Jeff G. Hammel Brian J. Poronsky LATHAM & WATKINS LLP KATTEN MUCHIN ROSENMAN LLP 885 Third Avenue 525 West Monroe Street New York, New York 10022 Chicago, Illinois 60661 Telephone: (212) 906-1200 Telephone: (312) 902-5200 jeff.hammel@lw.com arthur.hahn@kattenlaw.com Attorneys for Defendants-Appellees Attorneys for Defendant-Appellee British Bankers' Association, BBA Royal Bank of Canada Enterprises Ltd., and BBA LIBOR Ltd. /s/ Steven Wolowitz Steven Wolowitz Henninger S. Bullock Andrew J. Calica MAYER BROWN LLP 1221 Avenue of the Americas New York, New York 10020 Telephone: (212) 506-2500 swolowitz@mayerbrown.com Attorneys for Defendant-Appellee Société Générale 8 Case 17-1569, Document 487-1, 03/26/2018, 2265021, Page15 of 16 CERTIFICATE OF COMPLIANCE 1. I hereby certify that this brief complies with the type-volume limitations of Federal Rule of Appellate Procedure 27(d)(2)(A) because this brief contains 736 words. 2. I further hereby certify that this brief complies with the typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) and the type style requirements of Federal Rule of Appellate Procedure 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word in Times New Roman 14-point font. Dated: New York, New York March 26, 2018 /s/ Paul C. Gluckow Paul C. Gluckow 9 Case 17-1569, Document 487-1, 03/26/2018, 2265021, Page16 of 16 CERTIFICATE OF SERVICE I, Paul C. Gluckow, hereby certify that on March 26, 2018, I caused a copy of the foregoing response to be served on all parties through the Court's ECF system, which will send a notice of electronic filing to all counsel of record. Dated: New York, New York March 26, 2018 /s/ Paul C. Gluckow Paul C. Gluckow 10 Case 17-1569, Document 487-2, 03/26/2018, 2265021, Page1 of 56 EXHIBIT A 17-1569(L), Case 17-1569, Document 487-2, 03/26/2018, 2265021, Page2 of 56 17-1915(CON), 17-1989(CON), 17-2056(CON), 17-2343(CON), 17-2347(CON), 17-2351(CON), 17-2352(CON), 17-2360(CON), 17-2376(CON), 17-2381(CON), 17-2383(CON), 17-2413(CON) United States Court of Appeals for the Second Circuit SCHWAB SHORT-TERM BOND MARKET FUND, SCHWAB TOTAL BOND MARKET FUND, SCHWAB U.S. DOLLAR LIQUID ASSETS FUND, (For Continuation of Caption See Next Page) _______________________________ ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK JOINT REPLY BRIEF FOR PLAINTIFFS-APPELLANTS REGARDING PERSONAL JURISDICTION (REDACTED) THOMAS C. GOLDSTEIN STEVEN E. FINEMAN ERIC F. CITRON MICHAEL J. MIARMI CHARLES H. DAVIS LIEFF CABRASER HEIMANN GOLDSTEIN & RUSSELL, P.C. & BERNSTEIN, LLP 7475 Wisconsin Avenue, Suite 850 250 Hudson Street, 8th Floor Bethesda, Maryland 20814 New York, New York 10013 (202) 362-0636 (212) 355-9500 – and – Attorneys for the Schwab Plaintiffs-Appellants and Plaintiffs-Appellants Ellen Gelboim and BRENDAN P. GLACKIN Linda Zacher LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 275 Battery Street, 29th Floor San Francisco, California 94111 (415) 956-1000 Attorneys for the Schwab Plaintiffs- Appellants and Plaintiff-Appellant Bay Area Toll Authority (For Continuation of Appearances See Next Page) Case 17-1569, Document 487-2, 03/26/2018, 2265021, Page3 of 56 SCHWAB MONEY MARKET FUND, SCHWAB VALUE ADVANTAGE MONEY FUND, SCHWAB RETIREMENT ADVANTAGE MONEY FUND, SCHWAB INVESTOR MONEY FUND, SCHWAB CASH RESERVES, SCHWAB ADVISOR CASH RESERVES, CHARLES SCHWAB BANK, N.A., CHARLES SCHWAB & CO., INC., SCHWAB YIELDPLUS FUND, SCHWAB YIELDPLUS FUND LIQUIDATION TRUST, THE CHARLES SCHWAB CORPORATION, CITY OF NEW BRITAIN, on behalf of itself and all others similarly situated, MAYOR AND CITY COUNCIL OF BALTIMORE, CITY OF HOUSTON, VISTRA ENERGY CORPORATION, YALE UNIVERSITY, JENNIE STUART MEDICAL CENTER, INC., FTC FUTURES FUND PCC LTD, on behalf of themselves and all others similarly situated, NATIONAL CREDIT UNION ADMINISTRATION BOARD, as Liquidating Agent of U.S. Central Federal Credit Union, WESTERN CORPORATE FEDERAL CREDIT UNION, MEMBERS UNITED CORPORATE FEDERAL CREDIT UNION, SOUTHWEST CORPORATE FEDERAL CREDIT UNION, and CONSTITUTION CORPORATE FEDERAL CREDIT UNION, PENNSYLVANIA INTERGOVERNMENTAL COOPERATION AUTHORITY, CITY OF PHILADELPHIA, DARBY FINANCIAL PRODUCTS, SALIX CAPITAL US INC., CAPITAL VENTURES INTERNATIONAL, PRUDENTIAL INVESTMENT PORTFOLIOS 2, FKA Dryden Core Investment Fund, on behalf of Prudendtial Core Short-Term Bond Fund, BAY AREA TOLL AUTHORITY, CALIFORNIA PUBLIC PLAINTIFFS, LINDA ZACHER, ELLEN GELBOIM, on behalf of herself and all others similarly situated, GARY FRANCIS, METZLER INVESTMENT GMBH, on behalf of itself and all others similarly situated, 303030 TRADING LLC, ATLANTIC TRADING USA, LLC, FTC FUTURES FUND SICAV, on behalf of themselves and all others similarly situated, NATHANIEL HAYNES, COUNTY OF SONOMA, THE SAN MATEO COUNTY JOINT POWERS FINANCING AUTHORITY, RICHMOND JOINT POWERS FINANCING AUTHORITY, SUCCESSOR AGENCY TO THE RICHMOND COMMUNITY REDEVELOPMENT AGENCY, RIVERSIDE PUBLIC FINANCING AUTHORITY, DAVID E. SUNDSTROM, in his official capacity as Treasurer of the county of Sonoma for and on behalf of the Sonoma County Treasury Pool Investment, EAST BAY MUNICIPAL UTILITY DISTRICT, REGENTS OF THE UNIVERSITY OF CALIFORNIA, Plaintiffs-Appellants, CARPENTERS PENSION FUND OF WEST VIRGINIA, CITY OF DANIA BEACH POLICE & FIREFIGHTERS' RETIREMENT SYSTEM, Individually and on behalf of all others similarly situated, RAVAN INVESTMENTS, LLC, RICHARD HERSHEY, JEFFREY LAYDON, on behalf of himself and all others similarly situated, ROBERTO E. CALLE GRACEY, AVP PROPERTIES, LLC, COMMUNITY BANK & TRUST, BERKSHIRE BANK, Individually and On Behalf of All Others Similarly Situated, ELIZABETH LIEBERMAN, on behalf of themselves and all other similarly situated, TODD AUGENBAUM, on behalf of themselves and all others similarly situated, 33-35 GREEN POND ROAD ASSOCIATES, LLC, on behalf of itself and all others similarly situated, COURTYARD AT AMWELL II, LLC, ANNIE BELL ADAMS, on behalf of herself and all others similarly situated, JILL COURT ASSOCIATES II, LLC, Case 17-1569, Document 487-2, 03/26/2018, 2265021, Page4 of 56 GREENWICH COMMONS II, LLC, DENNIS PAUL FOBES, on behalf of himself and all others similarly situated, LEIGH E. FOBES, on behalf of herself and all others similarly situated, MAIDENCREEK VENTURES II LP, RARITAN COMMONS, LLC, MARGARET LAMBERT, on behalf of herself and all others similarly situated, LAWRENCE W. GARDNER, on behalf of themselves and all others similarly situated, BETTY L. GUNTER, on behalf of herself and all others similarly situated, TEXAS COMPETITIVE ELECTRIC HOLDINGS COMPANY LLC, GOVERNMENT DEVELOPMENT BANK FOR PUERTO RICO, CARL A. PAYNE, individually, and on behalf of other members of the general public similarly situated, GUARANTY BANK AND TRUST COMPANY, Individually and on behalf of all others similarly situated, KENNETH W. COKER, individually, and on behalf of other members of the general public similarly situated, THE COUNTY OF MENDOCINO, COUNTY OF SAN MATEO, CITY OF RICHMOND, COUNTY OF SAN DIEGO, CITY OF RIVERSIDE, COUNTY OF SACRAMENTO, SAN DIEGO ASSOCIATION OF GOVERNMENTS, JOSEPH AMABILE, LOUIE AMABILE, individually & on behalf of Lue Trading, Inc., NORMAN BYSTER, MICHAEL CAHILL, RICHARD DEOGRACIAS, individually on behalf of RCD Trading, Inc., HEATHER M. EARLE, on behalf of themselves and all others similarly situated, HENRYK MALINOWSKI, on behalf of themselves and all others similarly situated, MARC FEDERIGHI, individually on behalf of MCO Trading, SCOTT FEDERIGHI, individually on behalf of Katsco, Inc., LINDA CARR, on behalf of themselves and all others similarly situated, ERIC FRIEDMAN, on behalf of themselves and all others similarly situated, ROBERT FURLONG, individually on behalf of XCOP, Inc., DAVID GOUGH, COUNTY OF RIVERSIDE, JERRY WEGLARZ, BRIAN HAGGERTY, individually on behalf of BJH Futures, Inc., DAVID KLUSENDORF, NATHAN WEGLARZ, on behalf of plaintiffs and a class, DIRECTORS FINANCIAL GROUP, individually and on behalf of all others similarly situated, RONALD KRUG, CHRISTOPHER LANG, SEIU PENSION PLANS MASTER TRUST, individually and on behalf of all others similarly situated, HIGHLANDER REALTY, LLC, JOHN MONCKTON, PHILIP OLSON, JEFFREY D. BUCKLEY, FEDERAL HOME LOAN MORTGAGE CORPORATION, BRETT PANKAU, DAVID VECCHIONE, individually on behalf of Vecchione & Associates, RANDALL WILLIAMS, JOHN HENDERSON, 303 PROPRIETARY TRADING LLC, MARGERY TELLER, CEMA JOINT VENTURE, NICHOLAS PESA, EDUARDO RESTANI, PRINCIPAL FUNDS, INC., PFI BOND & MORTGAGE SECURITIES FUND, PFI BOND MARKET INDEX FUND, PFI CORE PLUS BOND I FUND, PFI DIVERSIFIED REAL ASSET FUND, PFI EQUITY INCOME FUND, PFI GLOBAL DIVERSIFIED INCOME FUND, PFI GOVERNMENT &HIGH QUALITY BOND FUND, PFI HIGH YIELD FUND, PFI HIGH YIELD FUND I, PFI INCOME FUND, PFI INFLATION PROTECTION FUND, PFI SHORT-TERM INCOME FUND, PFI MONEY MARKET FUND, PFI PREFERRED SECURITIES FUND, PRINCIPAL VARIABLE CONTRACTS FUNDS, INC., PVC ASSET ALLOCATION ACCOUNT, PVC MONEY MARKET ACCOUNT, PVC BALANCED ACCOUNT, PVC BOND & MORTGAGE SECURITIES ACCOUNT, PVC EQUITY INCOME ACCOUNT, PVC GOVERNMENT & HIGH QUALITY BOND ACCOUNT, PVC INCOME ACCOUNT, PVC SHORT-TERM INCOME ACCOUNT, PRINCIPAL FINANCIAL GROUP, INC., PRINCIPAL FINANCIAL SERVICES, INC., PRINCIPAL LIFE INSURANCE COMPANY, PRINCIPAL CAPITAL INTEREST ONLY I, LLC, PRINCIPAL Case 17-1569, Document 487-2, 03/26/2018, 2265021, Page5 of 56 COMMERCIAL FUNDING, LLC, PRINCIPAL COMMERCIAL FUNDING II, LLC, PRINCIPAL REAL ESTATE INVESTORS, LLC, VITO SPILLONE, BRIAN MCCORMICK, MAXWELL VAN DE VELDE, Individually and on behalf of all others similarly situated, INDEPENDENCE TRADING, INC., INSULATORS AND ASBESTOS WORKERS LOCAL #14, Individually and on behalf of all others similarly situated, COURMONT & WAPNER ASSOCIATES, L.P., on behalf of itself and all others similarly situated, SALIX CAPITAL LTD., FTC CAPITAL GMBH, on behalf of themselves and all others similarly situated, CITY OF NEW BRITAIN FIREFIGHTERS' AND POLICE BENEFIT FUND, DIRECT ACTION PLAINTIFFS, FEDERAL NATIONAL MORTGAGE ASSOCIATION, TRIAXX PRIME CDO 2006-1, LTD., TRIAXX PRIME CDO 2006-2, LTD., TRIAXX PRIME CDO 2007-1, LTD., FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver, FRAN P. GOLDSLEGER, NATIONAL ASBESTOS WORKERS PENSION FUND, PENSION TRUST FOR OPERATING ENGINEERS, HAWAII ANNUITY TRUST FUND FOR OPERATING ENGINEERS, CEMENT MASONS' INTERNATIONAL ASSOCIATION EMPLOYEES' TRUST FUND, individually and on behalf of all others similarly situated, AXIOM INVESTMENT ADVISORS, LLC, AXIOM HFT LLC, AXIOM INVESTMENT ADVISORS HOLDINGS L.P., AXIOM INVESTMENT COMPANY, LLC, AXIOM INVESTMENT COMPANY HOLDINGS L.P., AXIOM FX INVESTMENT FUND, L.P., AXIOM FX INVESTMENT FUND II, L.P., AXIOM FX INVESTMENT 2X FUND, L.P., EPHRAIM F. GILDOR, GILDOR FAMILY ADVISORS L.P., GILDOR FAMILY COMPANY L.P., GILDOR MANAGEMENT, LLC, PRUDENTIAL CORE TAXABLE MONEY MARKET FUND, Plaintiffs, – v. – LLOYDS BANKING GROUP PLC, BANK OF AMERICA CORPORATION, THE ROYAL BANK OF SCOTLAND GROUP PLC, CREDIT SUISSE GROUP AG, DEUTSCHE BANK AG, JPMORGAN CHASE & CO., THE NORINCHUKIN BANK, HBOS PLC, ROYAL BANK OF CANADA, HSBC BANK PLC, COOPERATIEVE RABOBANK U.A., FKA COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., JPMORGAN CHASE BANK, N.A., THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., BANK OF AMERICA, N.A., BARCLAYS BANK PLC, WESTDEUTSCHE IMMOBILIENBANK AG, PORTIGON AG, FKA WESTLB AG, HSBC HOLDINGS PLC, WESTLB AG, SOCIETE GENERALE, COOPERATIEVE CENTRALE RAIFFEISEN - BOERENLEENBANK B.A., CREDIT SUISSE INTERNATIONAL, CREDIT SUISSE (USA), INC., THE ROYAL BANK OF SCOTLAND PLC, CREDIT SUISSE AG, HSBC SECURITIES (USA) INC., HSBC BANK USA, N.A., HSBC FINANCE CORPORATION, BARCLAYS CAPITAL INC., HSBC USA, INC., THE HONG KONG AND SHANGHAI BANKING CORPORATION LTD., RBC CAPITAL MARKETS LLC, BANK OF AMERICA N.A., RABOBANK GROUP, UBS SECURITIES LLC, CITI SWAPCO INC., BBA ENTERPRISES, LTD., BBA LIBOR, LTD., BRITISH BANKERS' ASSOCIATION, MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, FKA BANC OF AMERICA SECURITIES, LLC, CITIGROUP FINANCIAL PRODUCTS, INC., J.P. MORGAN BANK DUBLIN PLC, FKA BEAR STEARNS BANK PLC, UBS LIMITED, CREDIT SUISSE GROUP INTERNATIONAL, UBS AG, Case 17-1569, Document 487-2, 03/26/2018, 2265021, Page6 of 56 Defendants-Appellees, CREDIT AGRICOLE S.A., SUMITOMO MITSUI BANKING CORPORATION, BNP PARIBAS S.A., RBS CITIZENS, N.A., incorrectly sued as othe Charter One Bank NA, RBS CITIZENS, N.A., CREDIT SUISSE GROUP, NA, CITIZENS BANK OF MASSACHUSETTS, Agent of RBS Citizens Bank, NA, BARCLAYS US FUNDING LLC, DEUTSCHE BANK FINANCIAL LLC, DOES 1 THROUGH 10, SOCIETE GENERALE CORPORATE & INVESTMENT BANKING, NATIONAL ASSOCIATION, STEPHANIE NAGEL, JOHN DOES #1- #5, NATIONAL COLLEGIATE STUDENT LOAN TRUST 2007-1, CHASE BANK USA, N.A., J.P. MORGAN CLEARING CORP., BANK OF AMERICA SECURITIES LLC, CENTRALE RAIFFEISEN-BERENLEENBANK B.A., UBS AG, ROYAL BANK OF SCOTLAND GROUP PLC, BANK OF NOVA SCOTIA, CREDIT SUISSE SECURITIES (USA) LLC, RBS GROUP, LLOYDS BANK PLC, FKA Lloyds Bank plc, CITIZENS BANK N.A., CREDIT SUISSE SECURITIES (USA) LLC, CITIGROUP GLOBAL MARKETS, INC., THE ROYAL BANK OF SCOTLAND PLC, LLOYDS BANK PLC, CITIGROUP FUNDING, INC., SOCIETE GENERALE S.A., BARCLAYS PLC, J.P. MORGAN SECURITIES LLC, FKA J.P. Morgan Securities Inc., DEUTSCHE BANK SECURITIES INCORPORATED, BANC OF AMERICA SECURITIES, LLC, RBS SECURITIES INC., FKA Greenwich Capital Markets, Inc., LLOYDS TSB BANK PLC, ICAP PLC, J.P. MORGAN MARKETS LTD., BANK OF AMERICA HOME LOANS, MERRILL LYNCH CAPITAL SERVICES, INC., CITIGROUP GLOBAL MARKETS LIMITED, MERRILL LYNCH & CO., INC., MERRILL LYNCH INTERNATIONAL BANK, LTD., BEAR STEARNS CAPITAL MARKETS, INC., BARCLAYS CAPITAL (CAYMAN) LIMITED, INSTITUTE OF INTERNATIONAL BANKERS, CLEARING HOUSE ASSOCIATION L.L.C., CITIBANK, N.A., CITIGROUP INC., Defendants. BARRY BARNETT RICHARD W. MITHOFF SUSMAN GODFREY L.L.P. MITHOFF LAW 1000 Louisiana Street One Allen Center Houston, Texas 77002 Penthouse, Suite 3450 (713) 651-9366 500 Dallas Street Houston, Texas 77002 – and – (713) 654-1122 WILLIAM C. CARMODY ARUN S. SUBRAMANIAN Attorneys for Plaintiff-Appellant GENG CHEN City of Houston SUSMAN GODFREY L.L.P. 1301 Avenue of the Americas New York, New York 10019 (212) 336-8330 – and – Case 17-1569, Document 487-2, 03/26/2018, 2265021, Page7 of 56 DREW HANSEN NANCI E. NISHIMURA SUSMAN GODFREY L.L.P. COTCHETT, PITRE & MCCARTHY, LLP 1201 Third Avenue 840 Malcolm Road, Suite 200 Seattle, Washington 98101 Burlingame, California 94010 (206) 516-3880 (650) 697-6000 – and – – and – MARC M. SELTZER ALEXANDER E. BARNETT SUSMAN GODFREY L.L.P. COTCHETT, PITRE & MCCARTHY, LLP 1901 Avenue of the Stars 40 Worth Street, 10th Floor Los Angeles, California 90067 New York, New York 10013 (310) 789-3100 (212) 201-6820 – and – Attorneys for Plaintiffs-Appellants City of MICHAEL D. HAUSFELD Houston, County of San Mateo, The San HILARY K. SCHERRER Mateo County Joint Powers Financing NATHANIEL C. GIDDINGS Authority, City of Richmond, The HAUSFELD LLP Richmond Joint Powers Financing 1700 K Street, NW Authority, Successor Agency to the Washington, DC 20006 Richmond Community Redevelopment (202) 540-7200 Agency, City of Riverside, The Riverside Public Financing Authority, County of Attorneys for Plaintiffs-Appellants City Mendocino, County of Sacramento, of New Britain, Mayor and City County of San Diego, County of Council of Baltimore, Vistra Energy Sonoma, David E. Sundstrom, in his Corporation, Yale University, and official capacity as Treasurer of the Jennie Stuart Medical Center, Inc. County of Sonoma, San Diego Association of Governments, East Bay KAREN L. MORRIS Municipal Utility District, and The PATRICK F. MORRIS Regents of the University of California R. MICHAEL LINDSEY MORRIS AND MORRIS LLC DAVID E. KOVEL COUNSELORS AT LAW ANDREW M. MCNEELA 4023 Kennett Pike, #254 KIRBY MCINERNEY LLP Wilmington, Delaware 19807 825 Third Avenue (302) 426-0400 New York, New York 10022 – and – (212) 371-6600 DAVID H. WEINSTEIN – and – ROBERT S. KITCHENOFF CHRISTOPHER LOVELL WEINSTEIN KITCHENOFF & ASHER LLC LOVELL STEWART HALEBIAN 100 South Broad Street, Suite 705 JACOBSON LLP Philadelphia, Pennsylvania 19110 61 Broadway, Suite 501 (215) 545-7200 New York, New York 10006 (212) 608-1900 Attorneys for Plaintiffs-Appellants Ellen Gelboim and Linda Zacher Attorneys for Plaintiffs-Appellants Metzler Investment GmbH, Gary Francis, 303030 Trading LLC, Atlantic Trading USA, LLC, FTC Futures Fund Case 17-1569, Document 487-2, 03/26/2018, 2265021, Page8 of 56 PCC Ltd., FTC Futures Fund SICAV, and Nathaniel Haynes STEIG D. OLSON DAVID C. FREDERICK DANIEL L. BROCKETT ANDREW C. SHEN DANIEL P. CUNNINGHAM KELLOGG, HANSEN, TODD, FIGEL QUINN EMANUEL URQUHART & FREDERICK, P.L.L.C. & SULLIVAN, LLP 1615 M Street, NW, Suite 400 51 Madison Avenue, 22nd Floor Washington, DC 20036 New York, New York 10010 (202) 326-7900 (212) 849-7000 – and – Attorneys for Plaintiff-Appellant National Credit Union Administration Board JEREMY ANDERSEN QUINN EMANUEL URQUHART DANIEL L. BROCKETT & SULLIVAN, LLP STEIG D. OLSON 865 South Figueroa Street, 10th Floor DANIEL P. CUNNINGHAM Los Angeles, California 90017 QUINN EMANUEL URQUHART (213) 443-3000 & SULLIVAN, LLP 51 Madison Avenue, 22nd Floor Attorneys for Plaintiffs-Appellants New York, New York 10010 The City of Philadelphia and the (212) 849-7000 Pennsylvania Intergovernmental – and – Cooperation Authority JEREMY ANDERSEN QUINN EMANUEL URQUHART & SULLIVAN, LLP 865 South Figueroa Street, 10th Floor Los Angeles, California 90017 (213) 443-3000 Attorneys for Plaintiffs-Appellants Prudential Investment Portfolios 2, Darby Financial Products, Capital Ventures International, and Salix Capital US Inc. Case 17-1569, Document 487-2, 03/26/2018, 2265021, Page9 of 56 TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... ii SUMMARY OF ARGUMENT ................................................................................. 1 ARGUMENT ............................................................................................................. 4 I. Defendants' Overt Acts In The United States In Furtherance Of Their Conspiracy Give Rise To Conspiracy Jurisdiction. ............................................. 4 II. Schwab Holds That Defendants' U.S. Sales Create Personal Jurisdiction For Claims Arising From Those Sales, And Support Jurisdiction On Other Theories As Well. .......................................................... 17 A. Schwab Holds Personal Jurisdiction Is Proper for Direct-Purchaser Antitrust Claims ........................................................................................... 18 B. For All Other Claims, Defendants' Sales and Other Forum Contacts Create Personal Jurisdiction Either Through Direct Contacts or Under the Effects Test. ............................................................. 24 1. Defendants' billions in U.S. sales of price-fixed instruments demonstrate that their profit-motivated conspiracy was directed at this forum. ............................................................................ 25 2. Defendants' reputation-motived conspiracy was also expressly aimed at, and carried out in, the United States. ..................................... 27 III. Defendants Cannot Defend The District Court's Failure To Find Jurisdiction Under Clayton Act §12. ................................................................. 30 A. U.S.-Resident Banks Are Obviously Subject to Congressionally Granted Personal Jurisdiction. ..................................................................... 31 B. The Foreign Banks Also Lack Any Constitutional Defense to Jurisdiction Under Clayton Act §12. ........................................................... 31 IV. Defendants Have Waived Their Personal Jurisdiction Defense In Certain Cases. .................................................................................................... 34 A. OTC Plaintiffs.............................................................................................. 34 B. Bondholders ................................................................................................. 35 C. Direct-Action Plaintiffs ............................................................................... 37 CONCLUSION ........................................................................................................ 38 i Case 17-1569, Document 487-2, 03/26/2018, 2265021, Page10 of 56 TABLE OF AUTHORITIES Cases Anderson Grp., LLC v. City of Saratoga Springs, 805 F.3d 34 (2d Cir. 2015) ................................................................................23 Anderson News, L.L.C. v. Am. Media, Inc., 680 F.3d 162 (2d Cir. 2012) ..............................................................................11 Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 305 F.3d 120 (2d Cir. 2002) ..............................................................................27 Bristol-Myers Squibb Co. v. Sup. Ct., 137 S. Ct. 1773 (2017) ................................................................................ 32, 33 Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985) ...........................................................................................23 Burnham v. Superior Court, 495 U.S. 604 (1990) ...........................................................................................34 Calder v. Jones, 465 U.S. 783 (1984) ................................................................................ 2, 29, 30 Charles Schwab Corp. v. Bank of Am. Corp., 883 F.3d 68 (2d Cir. 2018) ........................................................................ passim Chevron Corp. v. Naranjo, 667 F.3d 232 (2d Cir. 2012) ..............................................................................35 Chloé v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158 (2d Cir. 2010) ....................................................................... 23, 26 Corporacion Mexicana de Mantenimiento Integral, S. de R.L. de C.V. v. Pemex Exploracion y Produccion, 832 F.3d 92 (2d Cir. 2016) ........... 35, 37, 38 Daimler AG v. Bauman, 134 S. Ct. 746 (2014) ............................................................................ 31, 33, 35 Dorchester Fin. Sec., Inc. v. Banco BRJ, S.A., 722 F.3d 81 (2d Cir. 2013) ..................................................................................7 Eades v. Kennedy, PC Law Offices, 799 F.3d 161 (2d Cir. 2015) ..............................................................................23 EMI Christian Music Grp. v. MP3tunes, LLC, 844 F.3d 79 (2d Cir. 2016) ................................................................................26 ii Case 17-1569, Document 487-2, 03/26/2018, 2265021, Page11 of 56 Gelboim v. Bank of Am. Corp., 823 F.3d 759 (2d Cir. 2016) ...................................................................... passim Gucci Am., Inc. v. Weixing Li, 768 F.3d 122 (2d Cir. 2014) ..............................................................................35 Hamilton v. Atlas Turner, Inc., 197 F.3d 58 (2d Cir. 1999) ................................................................................37 In re Nassau Cty. Strip Search Cases, 639 Fed. Appx. 746 (2d Cir. 2016)....................................................................36 In re Pub. Paper Antitrust Litig., 690 F.3d 51 (2d Cir. 2012) ......................................................................... 20, 21 J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873 (2011) ...........................................................................................30 Kernan v. Kurz-Hastings, Inc., 175 F.3d 236 (2d Cir. 1999) ..............................................................................26 Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 732 F.3d 161 (2d Cir. 2013) ....................................................................... 15, 21 Litton Sys., Inc. v. AT&T Co., 700 F.2d 785 (2d Cir. 1983) ................................................................................7 McGee v. Int'l Life Ins. Co., 355 U.S. 220 (1957) ...........................................................................................23 Peterson v. Cellco P'ship, 80 Cal. Rptr. 3d 316 (Ct. App. 2008) ................................................................22 Riciuti v. N.Y.C. Transit Auth., 941 F.2d 119 (2d Cir. 1991) ................................................................................7 Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477 (1989) ...........................................................................................33 Selman v. Harvard Med. Sch., 494 F. Supp. 603 (S.D.N.Y. 1980) ....................................................................23 United States v. Scophony Corp., 333 U.S. 795 (1948) .................................................................................... 32, 34 United States v. Southland Corp., 760 F.2d 1366 (2d Cir. 1985) ..............................................................................7 Walden v. Fiore, 134 S. Ct. 1115 (2014) .................................................................................. 4, 29 iii Case 17-1569, Document 487-2, 03/26/2018, 2265021, Page12 of 56 Statutes 15 U.S.C. §22 (Clayton Act §12)............................................................ 2, 30, 32, 34 15 U.S.C. §6a ...........................................................................................................32 Rules Fed. R. Civ. P. 54(b) ......................................................................................... 36, 37 Fed. R. Evid. 801(d)(2) advisory committee's note ..................................................7 Other Authorities Jill Treanor, Former Barclays Executive Insists Bob Diamond Instructed Him to Cut Libor, The Guardian (July 16, 2012), https://www.theguardian.com /business/2012/jul/16/barclays-del-missier-bob-diamond-libor ........................13 iv Case 17-1569, Document 487-2, 03/26/2018, 2265021, Page13 of 56 SUMMARY OF ARGUMENT While plaintiffs' opening brief amply demonstrated why settled personal-ju- risdiction principles warrant reversal, this Court's intervening opinion in Charles Schwab Corp. v. Bank of America Corp., 883 F.3d 68 (2d Cir. 2018), resolves any doubt. Its holdings control on multiple grounds. First, and simplest, is Schwab's holding that U.S. courts have jurisdiction over all defendants if one "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. at 87. Here, plaintiffs have developed detailed, record-supported allegations of "in-forum acts taken in furtherance of the conspiracy," id. at 90, and Schwab makes clear that those allegations must be "credited" at this stage. Id. at 81. These direct forum contacts, especially viewed in their totality as required, resolve this appeal for all parties. See infra Part I. Second, there can be no doubt after Schwab that there is personal jurisdiction for claims predicated on defendants' own transactions in the United States. As Schwab explained, "[a]llegations of billions of dollars in transactions in California easily make out a prima facie showing of personal jurisdiction for claims relating to those transactions." Id. at 82 (emphasis added). Schwab's holding was thus to re- verse the district court's personal-jurisdiction ruling with respect to "claims concern- ing products sold in California." Id. at 98. This holding covers the antitrust claims 1 Case 17-1569, Document 487-2, 03/26/2018, 2265021, Page14 of 56 of direct-purchaser plaintiffs, which by definition "concern" defendants' products sold to those plaintiffs in the United States. See infra Part II.A. Third, Schwab suggests that while defendants were not subject to jurisdiction for state-law claims in California under the "effects test" because their conduct was insufficiently targeted at California, the same is not true for the nationwide test that applies to plaintiffs' federal antitrust claims. See id. at 87-88. Here, defendants plainly targeted their U.S. Dollar LIBOR manipulation at the United States in the same sense that led the Supreme Court to find jurisdiction in Calder v. Jones, 465 U.S. 783 (1984)—a case whose facts defendants do not mention. This is not "mere foreseeability," contra DPJBr. 52: Defendants needed to cause the effects they did in the United States to shore up their reputations and borrowing power in U.S. debt markets. They even launched a "charm offensive" in the United States to bolster LIBOR's perceived integrity here, and took other steps to ensure the conspiracy's U.S. effects. See infra Part II.B. Finally, because defendants' brief here does not appear to dispute that plain- tiffs pleaded venue under Clayton Act §12, acceptance of their jurisdictional argu- ment would require the Court to hold that Congress cannot subject companies who "transact business" in the United States to general jurisdiction for antitrust claims. This would be the first Court to so hold; numerous cases suggest the opposite; and the Supreme Court's decisions on general jurisdiction for state-law claims have 2 Case 17-1569, Document 487-2, 03/26/2018, 2265021, Page15 of 56 specifically reserved the question whether those limits constrain Congress's power. This Court should this dubious invalidation of a congressional statute. See infra Part III.B. Separately, defendants have no response to plaintiffs' argument that Congress may clearly subject U.S. banks—its own residents—to personal jurisdiction wher- ever they transact business, requiring reversal as to those defendants. See infra Part III.A. Ultimately, this was a U.S.-focused conspiracy, conducted with several U.S.- based co-conspirators, in which at least four defendants ordered and/or directed the suppression of LIBOR from the United States. Defendants also clearly targeted the United States; they knew the predominant effect of U.S. Dollar LIBOR manipulation would be felt here, and took numerous steps to ensure that U.S. effects came to pass (and that they profited from them). Schwab thus provides multiple, clear paths through which this Court can find jurisdiction, while finding the opposite would constitute an unprecedented restriction of the sovereignty of U.S. courts and the United States. This Court should reverse. 3 Case 17-1569, Document 487-2, 03/26/2018, 2265021, Page16 of 56 ARGUMENT I. Defendants' Overt Acts In The United States In Furtherance Of Their Conspiracy Give Rise To Conspiracy Jurisdiction. Defendants' opposition brief led with the argument that there is no such thing as "conspiracy jurisdiction," or that it is unconstitutional. See DPJBr. 53. They made the identical arguments in Schwab, and they were comprehensively rejected. Compare id., with Schwab-ECF 191, at 30 (nearly identical sentences and quotations from Walden v. Fiore, 134 S. Ct. 1115, 1123 (2014)). Rejecting defendants' position, this Court held in Schwab that "one conspira- tor's minimum contacts allow for personal jurisdiction over a co-conspirator," and satisfy the "purposeful availment requirement" as to all members of the conspiracy where the plaintiff makes a "prima facie showing" 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." 883 F.3d at 86, 87. Schwab also pro- vided leave for Schwab to "add allegations about in-forum acts taken in furtherance of the conspiracy," id. at 90—including allegations about whether "Defendants un- dertook [in-forum] sales as part of the alleged conspiracy." Id. at 87. But during the more than three years since the Schwab complaint was filed, plaintiffs have identi- fied many more U.S. acts in furtherance of the conspiracy—though they have 4 Case 17-1569, Document 487-2, 03/26/2018, 2265021, Page17 of 56 repeatedly been denied jurisdictional discovery. That makes this case easy to resolve at the motion-to-dismiss stage on conspiracy-jurisdiction grounds. To being, defendants do not contest that the first and second conspiracy juris- diction elements are met, nor could they after Schwab and Gelboim v. Bank of Am. Corp., 823 F.3d 759, 781 (2d Cir. 2016). The only remaining question is thus whether plaintiffs have made a "prima facie" showing of "in-forum acts taken in furtherance of the conspiracy." Id. at 90. They plainly have. Indeed, while such a showing for even one co-conspirator would suffice under Schwab, plaintiffs allege that: (1) U.S.-based executives at four co-conspirator banks ordered and directed the suppression of LIBOR from the United States; (2) a fifth bank submitted its LIBOR quotes through a U.S.-headquartered subsidiary; (3) a sixth bank admitted that all panel banks submitted their suppressed LIBOR quotes to Thomson Reuters in New York for publication; and (4) defendants initiated a "charm offensive" in the United States to reinforce belief in LIBOR here. These are in-forum overt acts in furtherance of defendants' conspiracy, and so suffice for per- sonal jurisdiction—especially at the pleading stage, where all of plaintiffs' allega- tions must be credit and all inferences drawn in their favor. See id. at 87-88. UBS. In Gelboim, this Court explained that the "'pack' behavior" alleged in the complaints "plausibly suggest[s] an inference of conspiracy," and quoted several "pack" allegations from the complaints, including that "UBS managers directed that 5 Case 17-1569, Document 487-2, 03/26/2018, 2265021, Page18 of 56 the bank's USD Libor submissions be artificially suppressed so as to place UBS in the middle of the pack of panel bank submissions." 823 F.3d at 766 & n.5. The pleadings and affidavits now before the Court make a prima facie showing that, for UBS, this "middle of the pack" directive issued from the United States. That ends the inquiry under Schwab. In particular, plaintiffs allege that "[a] senior UBS manager in Stamford, Con- necticut issued the standing directive to 'submit low LIBOR contributions' for USD LIBOR, and to keep submissions in the 'middle of the pack of other banks' expected LIBOR submissions.'" CA3-4. UBS admitted this to the Department of Justice (DOJ) in a plea agreement arising out of the manipulation of LIBOR by a UBS sub- sidiary, and other government regulators similarly identified significant acts in fur- therance of the conspiracy directed from the United States. See id. (citing ECF 4, United States v. UBS Sec. Japan Co., 3:12-cr-268 (D. Conn. Dec. 19, 2012)). Plain- tiffs further allege that "UBS implemented with precision this U.S.-based directive to collude for long stretches of the class period," CA4 (quoting Gelboim, 823 F.3d at 767), and that CA4; CA38. Defendants concede that the above allegation and supporting statement from UBS's plea agreement are clearly "about where UBS directed the suppression of 6 Case 17-1569, Document 487-2, 03/26/2018, 2265021, Page19 of 56 U.S.-Dollar LIBOR submissions," but they nonetheless argue that they can be ig- nored because the statement was "apparently not based on [the] personal knowledge" of the UBS employee at issue. DPJBr. 43 (emphasis added). They further note that the same document suggests that someone in Zurich also sent an email directing that LIBOR be suppressed. Id. Neither point helps defendants. First, defendants' argument regarding "personal knowledge" is procedurally irrelevant for multiple reasons. At the pleading stage, all plaintiffs' plausible alle- gations must be credited. Dorchester Fin. Sec., Inc. v. Banco BRJ, S.A., 722 F.3d 81, 85 (2d Cir. 2013). It does not matter whether one allegation (among many) is based on the "personal knowledge" of a UBS employee, since admissibility is irrel- evant at the pleading stage. See, e.g., Riciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991) ("The fact that a pleading contains references to documents that may eventually be ruled inadmissible in evidence is not a proper basis for dismis- sal[.]"). Moreover, this evidence came from the UBS DOJ Statement of Facts that admitted all facts in the document. That party admission is easily credible enough for the motion-to-dismiss stage; indeed, it would be admissible even at trial without regard to personal knowledge. See Fed. R. Evid. 801(d)(2) advisory committee's note; United States v. Southland Corp., 760 F.2d 1366, 1376 n.4 (2d Cir. 1985) (Friendly, J., distinguishing Litton Systems, Inc. v. AT&T Co., 700 F.2d 785, 816-17 (2d Cir. 1983)). 7 Case 17-1569, Document 487-2, 03/26/2018, 2265021, Page20 of 56 Second, defendants' fact-based contention is also substantively wrong: Ex- tensive documentary evidence, attached to declarations, corroborates UBS's own admission that its Stamford-based executive directed its LIBOR suppression. To begin, UBS's DOJ Statement of Facts admits that many other managers at UBS un- derstood the U.S. origins of the directive: "[T]he manager of UBS's Swiss Franc derivatives trading desk understood that in 2008, UBS Group Treasury instituted a policy of submitting LIBORs for all currencies, including Swiss Franc, in the middle of the pack of other banks' expected LIBOR submissions. S/he received this direc- tion from the senior manager heading ALM, who in turn indicated that the direction came from the Stamford-based Group Treasury senior manager." UBS SOF ¶129 (cited in ECF 1508, at 3) (emphasis added). Not only that, but CA109, and that CA111. Those facts, combined with the admissions above, easily merit an inference that UBS's directive to suppress LI- BOR originated here. In addition, CA4; CA38(¶51); CA166. 8 Case 17-1569, Document 487-2, 03/26/2018, 2265021, Page21 of 56 These allegations corroborate UBS's own admission and further indicate that at least some ongoing management, supervision, or control of the suppression by UBS was occurring in the United States—all of which would be acts in furtherance of the conspiracy even if (counterfactually) the original directive issued elsewhere. JPMorgan—Plaintiffs allege that JPMorgan, a U.S. bank, engaged in numer- ous U.S. acts in furtherance of the conspiracy, including:  On December 11, 2007, CA30; CA139.  One week later, on December 18, 2007, CA31; CA141.  On April 2, 2008, 9 Case 17-1569, Document 487-2, 03/26/2018, 2265021, Page22 of 56 CA35; CA156. CA35; CA156 (all emphases added). These numerous examples of New York-based JPMorgan executives directing JPMorgan's LIBOR suppression from the United States more than satisfy Schwab's third element for conspiracy jurisdiction. And the inference that JPMorgan directed suppression from the United States is bolstered by JPMorgan's U.S. leadership and home base. Defendants argue that plaintiffs' allegations as to JPMorgan, backed up by emails and recordings, reflect nothing more than "executives discuss[ing] LIBOR submissions and express[ing] opinions about those submissions." DPJBr. 44. This argument is foreclosed in fact and by law. Defendants primarily address a phone call between Contrary to defend- ants' characterization, 10 Case 17-1569, Document 487-2, 03/26/2018, 2265021, Page23 of 56 CA538 (emphasis added). These are action items, not water-cooler "conversations." Contra DPJRBr. 44 & n.7. CA538. These are U.S. overt acts in furtherance of the LIBOR-suppression conspiracy on any measure. But the legal bar is far lower than that: "Because plausibility is a standard lower than probability, a given set of actions may well be subject to diverg- ing interpretations" and "[t]he choice between or among plausible inferences or sce- narios is one for the factfinder." Anderson News, L.L.C. v. Am. Media, Inc., 680 F.3d 162, 184 (2d Cir. 2012). Even if one might read these emails as mere "conver- sations" about "industry-related news," reversal would still be required because plaintiffs' contrary interpretation is plainly plausible –at the absolute least. See id. at 190 ("[A]lthough an innocuous interpretation of the defendants' conduct may be plausible, that does not mean that the plaintiff's allegation that the conduct was cul- pable is not also plausible[.]"). 11 Case 17-1569, Document 487-2, 03/26/2018, 2265021, Page24 of 56 Citi—Citibank, like JPMorgan, is a U.S. resident and headquartered bank. Citi executive, who was U.S.-based at all relevant times, ordered Citi's LIBOR submitter to suppress LIBOR in a way that required the banks to coordinate sharing their confidential submissions in advance: CA34. This is an unambiguous overt act in the United States in furtherance of the LIBOR-suppression conspiracy. And, again, Citi's U.S. corporate leadership and headquarters only make an opposite inference all the more implausible. Barclays—Plaintiffs alleged that Barclays executive "Jerry Del Missier, who was based in New York … has admitted that he instructed subordinates to submit artificially low USD LIBOR rates." CA343. Defendants contend that "the article plaintiffs cited in support of that supposed admission directly contradicted plaintiffs' allegation" because "the article concerns a perceived directive from the Bank of England to lower Barclays' LIBOR submis- sions that was supposedly conveyed by Barclays' London-based CEO—not any em- ployee in the United States." DPJBr. 43. That is wrong. Wherever the direction may have started: 12 Case 17-1569, Document 487-2, 03/26/2018, 2265021, Page25 of 56 Del Missier said he passed on the instruction he received to reduce Li- bor submissions to the "head of the money market desk"—later named as Mark Dearlove. "It did not seem an inappropriate action given this was coming from the Bank of England," said Del Missier. Asked if he was acting on an instruction from Diamond, Del Missier said: "Yes it was." Jill Treanor, Former Barclays Executive Insists Bob Diamond Instructed Him to Cut Libor, The Guardian (July 16, 2012), https://www.theguardian.com/business/2012/ jul/16/barclays-del-missier-bob-diamond-libor, cited in CA343. The district court's holding that this is not constitute a U.S. overt act in fur- therance of the conspiracy because the "direction to submit low LIBOR rates" ulti- mately "came from CEO Bob Diamond" in London in plainly wrong. SPA25 n.17. Defendants never explain why giving an "instruction" to others to suppress LIBOR is not an act "in furtherance of the conspiracy" simply because the instruction (might have) originated elsewhere. See PPJBr. 62 (so arguing, to no response). Defendants do not contest that Barclays' New York-based executive instructed his subordinates to suppress Barclays' LIBOR submissions. Under Schwab, that is enough. Credit Suisse—Plaintiffs allege, with documentary support from an RBS message, that Credit Suisse's rigged USD-LIBOR submissions were submitted by its New York subsidiary, Credit Suisse First Boston. CA5; CA56-57.1 Defendants 1 RBS's documents also confirm that its own U.S. personnel participated in LI- BOR suppression. For example, a Connecticut-based RBS derivatives trader in- formed RBS's submitter that it 13 Case 17-1569, Document 487-2, 03/26/2018, 2265021, Page26 of 56 argue (without explanation, citation, or evidence) that this allegation should be dis- regarded because "this comment by a different bank's employee [cannot] rebut[] Credit Suisse's declaration attesting to the fact that its USD LIBOR submitters worked for Credit Suisse AG's London Branch and made the submissions from Lon- don." DPJBr. 45. This again asks this Court to improperly accept defendants' self- serving affidavits over a well-pleaded allegation (supported by documentary evi- dence). Defendants attempt to defend the district court's conclusion that the docu- ment plaintiffs cite "does not credibly support the allegation," DPJBr. 45 (citing SPA29), but credibility judgments in favor of the defendants are foreclosed on a motion to dismiss. Because plaintiffs have thus far been denied jurisdictional dis- covery, the sole question here is whether plaintiffs had some basis to plausibly allege that Credit Suisse submitted its rigged LIBOR quotes through its U.S. subsidiary. The answer is obviously "yes," and defendants' contrary factual arguments are pre- cisely what discovery is designed to test. Rabobank—Plaintiffs alleged that "every panel bank 'transmitted' their daily collusive submissions to Thomson Reuters in New York for purposes of calculating the price-fixed LIBOR," CA5, based on a Rabobank trader's sworn admission in his plea allocution that "someone at Rabobank … would submit the Rabobank LIBOR CA787(¶15); CA805-06. 14 Case 17-1569, Document 487-2, 03/26/2018, 2265021, Page27 of 56 rate each day to Thomson Reuters in New York by means of an electronic wire trans- mission," CA342 (emphasis added). Sending suppressed submissions to the BBA's agent in New York for U.S. publication is plainly an overt U.S. act in furtherance of the conspiracy, and defendants do not argue otherwise. See Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 732 F.3d 161, 171 (2d Cir. 2013) ("In this case, the correspondent account at issue is alleged to have been used as an instrument to achieve the very wrong alleged."). Instead, defendants argue that this allegation can be ignored because "the Dis- trict Court was not required to treat a trader's impression of his bank's submission process as indicative of the LIBOR-submission process at that bank or any other bank." DPJBr. 45-46. Again, however, defendants provide no support for their in- sinuation that Rabobank's former employee "misspoke" in his sworn allocution (pre- sumably vetted by DOJ), and even if they did, plaintiffs' well-pleaded allegation would have to be credited over defendants' proffered explanation. Indeed, this point provides a vivid example of defendants' effort to game the procedural posture and the standard it requires. To test this disputed fact, OTC Plain- tiffs served interrogatories on Rabobank and every other defendant asking them to "[i]dentify each Thomson Reuters Recipient to whom You sent LIBOR Submissions during the Relevant Time Period, including the location … of the Thomson Reuters Recipient." CA17-18. But all defendants refused to answer on the basis that this 15 Case 17-1569, Document 487-2, 03/26/2018, 2265021, Page28 of 56 was "impermissible jurisdictional discovery." Id. The district court, at defendants' urging, then accepted their untested affidavits while questioning the credibility of plaintiffs' contrary allegations and supporting evidence. That is not a fair fight. The "Charm Offensive"—Finally, defendants relegate to a footnote the "charm offensive" that they—acting through their Foreign Exchange and Money Markets Committee (FXMMC) Secretary John Ewan (see PPJBr. 17-18)—under- took in the United States to bolster the perceived reliability of the LIBOR benchmark in U.S. markets. Those efforts included, among other things, a meeting with the Chicago Mercantile Exchange (CME). Defendants argue that these were only "a couple of visits" that had "nothing to do with determining or transmitting LIBOR." DPJBr. 46 n.8. But that's beside the point; as Schwab holds, submission of sup- pressed LIBOR quotes was not the only jurisdictionally relevant act involved in car- rying out the conspiracy. See 883 F.3d at 90 (rejecting this argument as "errone- ous"). That defendants sent an agent into the territorial United States to promote LIBOR's integrity is irrefutable evidence that defendants (1) aimed their LIBOR- suppression conspiracy at the United States and attempted to make sure its effects worked as designed in U.S. debt markets, (see infra Part II.B, discussing the "effects test"); and (2) did so by establishing a direct, territorial U.S. contact in furtherance of the conspiracy. 16 Case 17-1569, Document 487-2, 03/26/2018, 2265021, Page29 of 56 Accordingly, while Schwab made clear that remand for repleading is the min- imum relief to which plaintiffs are entitled, 883 F.3d at 89, the above allegations demonstrate that no repleading is necessary. The relevant forum for personal juris- diction in Schwab was solely California—not the United States as it is here—and as demonstrated above, defendants' U.S. conduct in furtherance of the conspiracy goes far beyond their California-specific conduct. And Schwab discussed only one kind of overt act in furtherance of the conspiracy—"Defendants' sales in California" id. at 87 (emphasis added)—while plaintiffs here have submitted numerous overt acts in the United States in furtherance of the conspiracy that easily satisfy Schwab's test. In the decision challenged, the district court considered those allegations and dis- missively characterized them all as "vacuous submissions derived from millions of pages of discovery." SPA21. Given the vagaries of the MDL process, there is no guarantee that any adverse holding on remand would be appealable until after a trial in this already-seven-years-old case. This Court should decide these issues now, and reverse. II. Schwab Holds That Defendants' U.S. Sales Create Personal Jurisdiction For Claims Arising From Those Sales, And Support Jurisdiction On Other Theories As Well. The opening brief explained that every defendant sold billions in price-fixed instruments into the United States, and that those sales were direct contacts "related to" plaintiffs' claims for jurisdictional purposes. After Schwab, two points about 17 Case 17-1569, Document 487-2, 03/26/2018, 2265021, Page30 of 56 those sales are incontrovertible. The first is that they conclusively establish a prima facie case of U.S. personal jurisdiction over antitrust claims—like those held by the OTC Class and direct-action plaintiffs—that arise directly from the price-fixed fi- nancial instruments defendants sold to the plaintiffs within the United States. The second is that these sales are jurisdictionally relevant: they (1) alone require at least leave to replead on a direct-contacts theory; and (2) support jurisdiction under a na- tionwide "effects test" as well. A. Schwab Holds Personal Jurisdiction Is Proper for Direct- Purchaser Antitrust Claims After Schwab, there is no personal-jurisdiction question regarding antitrust claims against defendants regarding instruments they sold directly to plaintiffs in the United States. See 883 F.3d at 83 ("[T]o the extent Schwab's claims concern trans- actions in California (as most of its surviving ones do), there is jurisdiction over the Defendants who are clearly identified as having made direct sales[.]"). As this Court explained, "[a]llegations of billions of dollars in transactions in California easily make out a prima facie showing of personal jurisdiction for claims relating to those transactions." Id. at 82. The Court's order thus "VACATE[D] those portions of the district court judgment that dismiss[ed] Schwab's state-law claims concerning prod- ucts sold in California for lack of personal jurisdiction." Id. at 98. On its face, that holding covers direct-purchasers' antitrust claims concerning defendants' U.S. sales. 18 Case 17-1569, Document 487-2, 03/26/2018, 2265021, Page31 of 56 In fact, the OTC Class is defined as those who "purchased in the United States, directly from a Defendant (or a Defendant's subsidiaries or affiliates), a fi- nancial instrument that paid interest indexed to LIBOR ('LIBOR-Based Instru- ment')." JA1023 (emphasis added). Named plaintiff Baltimore purchased a LI- BOR-based interest rate swap in the United States directly from Defendant UBS and UBS sent collusively suppressed payments on that swap to Baltimore (in Baltimore). JA1153-55; JA1166. Many direct-action plaintiffs also made their purchases di- rectly from the defendants. These antitrust claims arise from the plaintiff's purchase of an instrument whose price was fixed by defendants' conspiracy. See Gelboim, 823 F.3d at 775 ("Appellants have plausibly alleged antitrust injury. They have identified an 'illegal anticompetitive practice' (horizontal price-fixing), have claimed an actual injury placing appellants in a '"worse position"' as a consequence' of the Banks' conduct, and have demonstrated that their injury is one the antitrust laws were designed to prevent."). Without their purchase of these LIBOR-based instruments from defend- ants in the United States, these plaintiffs would not even have standing to assert a claim. Schwab thus confirms that U.S. personal jurisdiction exists over these claims. This Court explained in Gelboim that plaintiffs allege an "uncomplicated" conspiracy in which the banks "colluded to depress LIBOR, and thereby increased the cost to appellants, as buyers, of various LIBOR-based financial instruments, a 19 Case 17-1569, Document 487-2, 03/26/2018, 2265021, Page32 of 56 cost increase reflected in reduced rates of return." 823 F.3d at 771. All direct-pur- chaser plaintiffs are "buyers" of "the price-fixed instruments" in the United States, and they received the "reduced rates of return" in that forum, too. As a result, their antitrust claims are clearly "relat[ed] to those transactions." See Schwab, 883 F.3d at 82; In re Pub. Paper Antitrust Litig., 690 F.3d 51, 61 (2d Cir. 2012) (holding element of price-fixing claims is that "conspiracy caused injury to the plaintiff in the form of artificially inflated prices"). In their Rule 28(j) submission, defendants try to turn Schwab on its head. They assert that Schwab's holding is that, for most types of claims (like antitrust claims), direct-seller defendants are not susceptible to personal jurisdiction because those claims are "premised on defendants' alleged submission of suppressed LIBOR quotes" abroad. See ECF 470-1 (citing Schwab). But Defendants' argument makes no sense; all this case's claims are "premised on defendants' alleged submission of suppressed LIBOR quotes," and yet this Court held in Schwab that "most of [Schwab's] surviving" claims "concern transactions in California," creating personal jurisdiction over direct-seller defendants for all those claims. 883 F.3d at 83. De- fendants simply misread a sentence from Schwab regarding claims "premised solely on Defendants' false LIBOR submissions in London" that did not also "aris[e] out of [defendants'] sales of LIBOR-based instruments" in the United States. Id. Any 20 Case 17-1569, Document 487-2, 03/26/2018, 2265021, Page33 of 56 contrary interpretation of Schwab makes nonsense out of its ultimate holding. See supra p.18 (discussing Schwab's concluding order).2 Defendants' other responses are not only foreclosed by Schwab but illogical. For example, defendants argue that there is no causal relationship between any de- fendant's conduct in the United States and plaintiffs' antitrust claims, DPJBr. 28, but this is obviously false: Defendants' sale of price-fixed instruments in the United States clearly has "some sort of causal relationship" with claims arising out of those same price-fixed instruments. Moreover, personal jurisdiction is satisfied if any el- ement arises out of defendants' forum conduct, and here the injury suffered from the in-forum sale of price-fixed instruments is an element of an antitrust claim. See Licci, 732 F.3d at 169 (upholding specific jurisdiction "where at least one element arises from the [forum] contacts"); Pub. Paper, 690 F.3d at 61 (holding that element of price-fixing claim is "injury to the plaintiff in the form of artificially inflated prices"). 2 Schwab clarified that the "one claim" that did not track this analysis was a unique species of third-party, "false submission" fraud claim that did not "concern transactions" in California. 883 F.3d at 83-84. Defendants' own briefing recognized that this claim was one where "Schwab allege[d] that it relied on LIBOR when pur- chasing LIBOR-based instruments from third parties and that it unilaterally consid- ered LIBOR when deciding to buy fixed-rate instruments." Schwab-ECF 191 at 27 (defendants' emphasis). Accordingly, the Court noted that "Schwab assert[ed] its false submission claims against all Defendants" whether or not they or any other defendant "s[old] products to Schwab" in California or anywhere else. Id. at 84. 21 Case 17-1569, Document 487-2, 03/26/2018, 2265021, Page34 of 56 In fact, Schwab demonstrates that so long as a claim arises from a product defendants sold to plaintiffs in the United States, personal jurisdiction is available without regard to whether any other "element" of the claim or wrongful conduct occurred here. Schwab approved personal jurisdiction over Schwab's unjust enrich- ment claims based on directly-purchased LIBOR-based instruments. 883 F.3d at 83. "The elements of an unjust enrichment claim are 'the receipt of a benefit and [the] unjust retention of the benefit at the expense of another.'" Peterson v. Cellco P'ship, 80 Cal. Rptr. 3d 316, 323 (Ct. App. 2008). Neither of those requires proof of any "act" by a defendant inside the forum beyond the sale of the instrument there. And yet, this Court upheld personal jurisdiction on these claims because their causal con- nection to the in-forum sale is sufficient alone. Defendants also argue that the direct U.S. sales are not suit-related because direct U.S. sales were not "necessary" to a reputation-only conspiracy. See DPJBr. 30. But whether direct U.S. sales were "necessary" or not (and they were, see infra p.26), defendants made them, and then sent price-fixed payments to their U.S. coun- terparties. That is all that matters under Schwab. Ultimately, although defendants attempt to distinguish a wealth of on-point Second Circuit caselaw, they conspicuously fail to cite a single case holding that personal jurisdiction is improper where (as here) the defendant directly sold the price-fixed product to the plaintiff in the forum. Exercising personal jurisdiction in 22 Case 17-1569, Document 487-2, 03/26/2018, 2265021, Page35 of 56 that instance plainly comports with due process under a straightforward reading of cases from this Court and the Supreme Court. See Schwab, 883 F.3d at 82 (citing Chloé v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158, 171 (2d Cir. 2010) and Eades v. Kennedy, PC Law Offices, 799 F.3d 161, 168 (2d Cir. 2015)); see also McGee v. Int'l Life Ins. Co., 355 U.S. 220, 223 (1957) ("It is sufficient for purposes of due process that the suit was based on a contract which had substantial connection with that State. The contract was delivered in California; the premiums were mailed from there and the insured was a resident of that State when he died."); Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475-76 (1985) (holding that a defendant is subject to personal jurisdiction where he "'deliberately' has engaged in significant activities within a State, or has created 'continuing obligations' between himself and residents of the forum"). Schwab reversed the only identifiable decision to the contrary, plac- ing personal jurisdiction over claims concerning products defendants sold in the U.S. beyond further dispute.3 3 Both below and in this Court, defendants have not argued for any jurisdic- tional distinction between those defendants who sold directly to named plaintiffs and those who sold only to other members of the OTC class. Any such argument is thus waived, see Anderson Grp., LLC v. City of Saratoga Springs, 805 F.3d 34, 50 (2d Cir. 2015), and now moot, given the class's certification. Cf. Selman v. Harvard Med. Sch., 494 F. Supp. 603, 613 n.6 (S.D.N.Y. 1980) (refusing to consider contacts from unnamed class members' claims for class not yet certified). 23 Case 17-1569, Document 487-2, 03/26/2018, 2265021, Page36 of 56 B. For All Other Claims, Defendants' Sales and Other Forum Contacts Create Personal Jurisdiction Either Through Direct Contacts or Under the Effects Test. This Court held in Schwab that, in the complaint before it, there were insuffi- cient allegations that defendants' conspiracy was targeted particularly at the State of California to support personal jurisdiction there under the "effects test." 883 F.3d at 88. In so doing, however, this Court recognized that the result might be different with respect to the nationwide contacts that govern federal claims like those at issue here. See id. And, indeed, the result must be different here because, unlike with the lone State of California, there is ample evidence that "the defendant[s] expressly aimed [their] conduct at" the United States in particular, satisfying the test that Schwab laid out. See id. at 87. With the lens zoomed out to the nation as a whole, the pleadings here easily go beyond "mere foreseeability," id., and establish that the United States was a pri- mary target of defendants' conduct. Beyond knowing that the United States would be the obvious, predominant victim U.S. Dollar LIBOR manipulation, defendants also worked hard to preserve and take advantage of the U.S. effects of their conduct. To that end, (1) every defendant sold billions in LIBOR-based instruments in the forum and traded billions in LIBOR-based derivatives on the CME while their con- spiracy was suppressing USD-LIBOR here; (2) every defendant published its LI- BOR submissions in the United States and sought business through those 24 Case 17-1569, Document 487-2, 03/26/2018, 2265021, Page37 of 56 submissions; and (3) defendants initiated a charm offensive in the United States to secure the fruits of the conspiracy here. Those direct forum contacts are sufficient for jurisdiction by themselves, and likewise suffice for purposes of the "effects test." 1. Defendants' billions in U.S. sales of price-fixed instruments demonstrate that their profit-motivated conspiracy was directed at this forum. Defendants do not dispute that they each sold billions in price-fixed financial instruments in the United States, and traded LIBOR-based derivatives, while they were suppressing LIBOR, profiting here from the conspiracy. Instead, they argue that, because the conspiracy was not profit-motivated, these profitable U.S. sales do not demonstrate that defendants aimed their conspiracy here. This argument is fore- closed by Gelboim, which expressly held that defendants had "a common motive to conspire—increased profits and the projection of financial soundness." 823 F.3d at 781-82. Indeed, defendants repeat here the exact same failed arguments they made in Gelboim. Compare Gelboim-ECF 464, at 49, with DPJBr. 36. Once defendants' profit motive is recognized, their billions in U.S. transac- tions clearly demonstrate that the conspiracy was aimed at the United States. Every defendant sold billions in LIBOR-based instruments in this forum, CA11-13; CA350-51; JA1037-38; JA1159, and given that defendants manipulated U.S. Dollar LIBOR, the plausible inference is that making profitable, price-fixed sales here was an express goal shared by all the conspiracy's members. In Schwab, the Court noted 25 Case 17-1569, Document 487-2, 03/26/2018, 2265021, Page38 of 56 that the complaint lacked "allegations that Defendants undertook such sales as part of the alleged conspiracy" and gave Schwab leave to replead. 883 F.3d at 87. Here, plaintiffs pleaded that the U.S. sales were part of the conspiracy. E.g., A1037-38. Moreover, this Court has held that conduct intentionally directed at multiple markets supports a finding that it was intentionally directed at each market—refuting defendants' untenable (and illogical) argument that because the alleged LIBOR sup- pression was directed virtually everywhere, they are subject to jurisdiction virtually nowhere. See EMI Christian Music Grp. v. MP3tunes, LLC, 844 F.3d 79, 98 (2d Cir. 2016) ("That MP3tunes served a national market, as opposed to a New York- specific market, has little bearing on our inquiry, as attempts to serve a nationwide market constitute 'evidence of [the defendant's] attempt to serve the New York mar- ket, albeit indirectly.'") (quoting Kernan v. Kurz-Hastings, Inc., 175 F.3d 236, 243 (2d Cir. 1999)); Chloé, 616 F.3d at 171 ("As Chloé correctly asserts, that Queen Bee's business attempted to serve a nationwide market does not diminish any pur- poseful contacts with Queen Bee's New York consumers."). In fact, the price-fixed sales in the United States were necessary to defendants' price-fixing conspiracy; it could not have survived without defendants' continuing billions in USD-LIBOR-based sales in this market. LIBOR is "the primary bench- mark for short term interest rates globally" and "occupied (and continues to occupy) a crucial role in the operation of financial markets." JA1027. If sixteen of the 26 Case 17-1569, Document 487-2, 03/26/2018, 2265021, Page39 of 56 world's largest banks—who just happened to constitute the USD-LIBOR panel— suddenly reduced or ended their U.S. sales of LIBOR-related instruments, it would have given away the conspiracy in a heartbeat. The sales were thus "in furtherance of the conspiracy." Indeed, the causal relationship between those sales and plain- tiffs' U.S. injuries is much closer than the New York-contacts found sufficient in cases like Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 305 F.3d 120, 128 (2d Cir. 2002) (holding Puerto Rico law firm subject to personal jurisdiction in New York where it "maintained an apartment in New York," "faxed newsletters regarding Puerto Rican legal developments to numerous persons in New York," "performed work for numerous New York clients and New York law firms," and "touted" in marketing materials "its 'close relationship with the Federal Reserve Bank of New York'"). 2. Defendants' reputation-motived conspiracy was also expressly aimed at, and carried out in, the United States. Moreover, as the opening brief explained, defendants' aim of projecting fi- nancial soundness was also "expressly aimed" at the United States, because defend- ants' reputational motive was intended to allow defendants to raise money from U.S. lenders, counterparties, and clients through U.S. debt markets during the financial crisis. Defendants' only substantive response is to call that argument "speculative," 27 Case 17-1569, Document 487-2, 03/26/2018, 2265021, Page40 of 56 but they do not even address the reports from two central banks supporting it. See PPJBr. 35.4 The "charm offensive" in the United States, outlined above, supra p.16, di- rectly supports this conclusion. That defendants saw the need to reinforce LIBOR's standing in U.S. debt markets—through intentional contact with the forum—demon- strates both the kind of "purposeful availment" that suffices for personal jurisdiction and that U.S. debt markets were the obvious target of their reputational conspiracy. Defendants also ignore the role their intentional publication of their LIBOR submissions in the United States played in their conspiracy. Just as that conspiracy could not have achieved its profit objectives without U.S. sales, defendants could not achieve their "reputational" objectives without the daily publication of their in- dividual, manipulated LIBOR submissions into U.S. markets. Defendants' state- ment that "[a]ll the bank defendants would have needed to do in order to 'project' a false appearance of 'financial soundness' is quote an artificially low rate" (DPJBr. 2, 33) is plainly incorrect: Defendants could not have "project[ed] financial sound- ness" unless they also published their otherwise-anonymous, individual USD-LI- BOR submissions to U.S. investors. In other words, defendants' "reputational" 4 Defendants incorrectly assert that this argument was not raised below. But see SDNY-ECF 1524, at 19 ("[T]hese Defendants wanted to inflate their apparent creditworthiness in order to better their bargaining power with their U.S. counter- parties and their ability to engage in the lucrative U.S. market at all."). 28 Case 17-1569, Document 487-2, 03/26/2018, 2265021, Page41 of 56 objective would be completely thwarted if U.S.-based investors didn't actually pur- chase LIBOR-related instruments in reliance on the LIBOR rates the banks set. Publication of individual submissions in the United States was thus at least a but-for cause of plaintiffs' injuries. Just as the libelous statement had to be published to California readers in Calder, defendants' individual suppressed LIBOR submis- sions had to be published to investors in the United States to have any reputational effect. Walden, 134 S. Ct. at 1124 ("[T]he reputational injury caused by the defend- ants' story would not have occurred but for the fact that the defendants wrote an article for publication in California that was read by a large number of California citizens."). Notably, this individualized publication was not thrust upon defendants un- willingly. Rather, as members of the BBA and (for many) the FXMMC, defendants chose to require contemporaneous publication of each individual bank's LIBOR sub- mission. Indeed, defendants specifically rejected attempts to "anonymize" the LI- BOR submission process during the conspiracy period. Each defendant's transmis- sions of its individual submissions to the United States were thus direct U.S. contacts as well as overt U.S. acts in furtherance of the reputation-driven conspiracy, and they support the U.S. targeting of the conspiracy's effects as well. In Schwab, this Court expressly noted that effects-test jurisdiction may be proper in the United States as a whole even if not proper in California. See 883 F.3d 29 Case 17-1569, Document 487-2, 03/26/2018, 2265021, Page42 of 56 at 88 ("Indeed, even if actions to manipulate U.S. Dollar LIBOR were aimed at the United States as a whole, it would not necessarily follow that such actions were aimed at California." (citing J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 884 (2011)). And when the inquiry looks to whether defendants' actions were aimed at the United States in particular, this case looks very much like Calder. In Calder, the Supreme Court held that an author and editor of a libelous story could be sued in the plaintiff's home state of California because they "knew that the brunt of the injury would be felt" there, where the magazine had its widest circulation. 465 U.S. at 788- 89. And while the Court held that was not true for Schwab's California claims, it is true of the nationwide, federal claims at issue here. Defendants intentionally manip- ulated U.S. Dollar LIBOR, published their suppressed submissions in the United States, sold billions in price-fixed instruments in the United States, traded billions in USD-LIBOR-based derivatives on the CME, and used a U.S. charm offensive to maintain USD-LIBOR's appearance of trustworthiness here. They at least surely "knew that the brunt of the injury" would be suffered in the United States. III. Defendants Cannot Defend The District Court's Failure To Find Jurisdiction Under Clayton Act §12. The opening brief explained that the Clayton Act §12 provides for worldwide service (and thus personal jurisdiction) for any antitrust suit where venue lies under that Act because defendants "transact business" in the forum. See 15 U.S.C. §22. Defendants' response nowhere disputes that plaintiffs here established venue in 30 Case 17-1569, Document 487-2, 03/26/2018, 2265021, Page43 of 56 several forums including the Southern District of New York, and that cases outside those forums could be