In Re Platinum and Palladium Antitrust Litigation ( 2023 )

20-1458 (L)
In re Platinum and Palladium Antitrust Litigation
In the
United States Court of Appeals
FOR THE SECOND CIRCUIT
AUGUST TERM 2020
Nos. 20-1458, 20-1575, 20-1611
IN RE PLATINUM AND PALLADIUM ANTITRUST LITIGATION
KPFF INVESTMENT, INC., WHITE OAK FUND LP, INDIVIDUALLY AND
ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, LARRY HOLLIN,
Plaintiffs-Appellants-Cross-Appellees,
MODERN SETTINGS LLC, A NEW YORK LIMITED LIABILITY COMPANY,
MODERN SETTINGS LLC, A FLORIDA LIMITED LIABILITY COMPANY,
ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED,
CRAIG R. COOKSLEY, INDIVIDUALLY AND ON BEHALF OF ALL THOSE
SIMILARLY SITUATED, NORMAN BAILEY, THOMAS GALLIGHER,
KEN PETERS,
Plaintiffs,
v.
BASF METALS LIMITED, ICBC STANDARD BANK PLLC,
Defendants-Appellees-Cross-Appellants,
GOLDMAN SACHS INTERNATIONAL, HSBC BANK USA, N.A., THE
LONDON PLATINUM AND PALLADIUM FIXING COMPANY LTD., BASF
CORPORATION,
Defendants-Appellees,
UBS AG, UBS SECURITIES LLC,
Defendants. *
* The Clerk of Court is directed to amend the caption as set forth above.
On Appeal from the United States District Court
for the Southern District of New York
ARGUED: JUNE 4, 2021
DECIDED: FEBRUARY 27, 2023
Before: POOLER and MENASHI, Circuit Judges, and VYSKOCIL,
District Judge. †
The plaintiffs-appellants and cross-appellees are participants in
the physical and derivatives markets for platinum and palladium and
seek monetary and injunctive relief for violations of the antitrust laws
and the Commodities Exchange Act (“CEA”). According to the
plaintiffs-appellants, the defendants—mostly foreign companies
engaged in trading these metals—manipulated the benchmark prices
for platinum and palladium by collusively trading on the futures
market to depress the price of these metals and by abusing the process
for setting the benchmark prices. The defendants allegedly benefited
from this conduct via trading in the physical markets and holding
short positions in the futures market. The district court held that it
had personal jurisdiction over two of the foreign defendants, but it
dismissed the plaintiffs’ antitrust claims for lack of antitrust standing
and the plaintiffs’ CEA claims for being impermissibly
extraterritorial. The plaintiffs appeal the dismissal of these claims. The
†Judge Mary Kay Vyskocil of the U.S. District Court for the Southern
District of New York, sitting by designation.
2
defendants cross-appeal the district court’s holdings on personal
jurisdiction.
We reverse in part, vacate in part, and affirm in part. We
reverse the district court’s holding that Larry Hollin and White Oak
Fund LP (the “Exchange Plaintiffs”) lacked antitrust standing to sue
for the manipulation of the New York Mercantile Exchange futures
market in platinum and palladium. As traders in that market, the
Exchange Plaintiffs are the most efficient enforcers of the antitrust
laws for that injury. But we affirm the district court’s conclusion that
KPFF Investment, Inc. did not have antitrust standing. Additionally,
we vacate the district court’s dismissal of the plaintiffs’ CEA claims.
The plaintiffs have alleged sufficient domestic activity so that the CEA
claims are not impermissibly extraterritorial. We affirm the district
court’s holdings as to personal jurisdiction over the foreign
defendants under a conspiracy theory of personal jurisdiction.
MATTHEW J. PEREZ, Labaton Sucharow LLP, New York,
NY (Jay L. Himes, Ethan H. Kaminsky, Labaton
Sucharow LLP, New York, NY, and Merrill G. Davidoff,
Martin I. Twersky, Zachary D. Caplan, Berger Montague
PC, Philadelphia, PA, on the brief), for Plaintiffs-Appellants-
Cross-Appellees.
PAUL MEZZINA, King & Spalding LLP, Washington, DC
(Damien J. Marshall, Leigh M. Nathanson, King &
Spalding LLP, New York, NY, and Joshua N. Mitchell,
3
King & Spalding LLP, Washington, DC, on the brief), for
HSBC Bank USA, N.A.
Stephen Ehrenbergh, Mark A. Popovsky, Sullivan &
Cromwell LLP, New York, NY, for Goldman Sachs
International.
MATTHEW A. KATZ (Lisa C. Cohen, on the brief), Schindler
Cohen & Hochman LLP, New York, NY, for the London
Platinum and Palladium Fixing Company Ltd.
ANDREW C. LAWRENCE (Michael F. Williams, Peter A.
Farrell, on the brief), Kirkland & Ellis LLP, Washington,
DC, for BASF Metals Limited and BASF Corporation.
ROBERT G. HOUCK (John D. Friel, Minji Reem, on the brief),
Clifford Chance US LLP, New York NY, for ICBC
Standard Bank Plc.
MENASHI, Circuit Judge:
The plaintiffs-appellants and cross-appellees in this case
participate in the markets for physical platinum and palladium and
for derivatives in those commodities. The plaintiffs-appellants
brought lawsuits alleging that the defendants—companies engaged
in precious metals trading—conspired to manipulate the global
benchmarks for those metals. Most, but not all, of the defendants are
foreign.
The plaintiffs sued for violations of the antitrust laws and the
Commodities Exchange Act (“CEA”) and for unjust enrichment.
According to the plaintiffs, the defendants artificially depressed the
4
benchmark prices for platinum and palladium both by collusively
trading in those metals’ derivatives—and thereby affecting the price
of platinum and palladium generally—and by manipulating the
process of setting the benchmark price. The defendants allegedly
benefited from these actions by participating in the physical market
for platinum and palladium and by holding short positions in the
futures market. The plaintiffs, as sellers of platinum and palladium
and participants in the derivatives market, allege corresponding
injuries.
The changing legal landscape since the initial filing resulted in
multiple complaints from the plaintiffs and multiple dispositions
from the district court. Ultimately, the district court concluded that it
had personal jurisdiction over two of the foreign defendants under a
conspiracy theory of personal jurisdiction, but it dismissed the
antitrust and CEA claims. It determined that the plaintiffs were not
efficient enforcers of the antitrust laws—and therefore lacked
antitrust standing—and that the plaintiffs’ CEA claims were
impermissibly extraterritorial. The plaintiffs timely appealed, and the
foreign defendants over whom the district court held that it had
personal jurisdiction cross-appealed that issue.
We reverse in part, vacate in part, and affirm in part. KPFF
Investment, Inc. lacked antitrust standing to sue for the impact that
the defendants had on the physical platinum and palladium market.
However, those plaintiffs who participated in the futures market—
Larry Hollin and White Oak Fund LP—are the most efficient
enforcers of the alleged antitrust injury in that market and have
antitrust standing to pursue claims based on that injury. We also hold
that the plaintiffs have alleged sufficient domestic activity to survive
5
a motion to dismiss on the CEA claims. And we affirm the district
court’s exercise of personal jurisdiction over the foreign defendants.
BACKGROUND
In considering this appeal, we “accept[] as true all factual
claims in the complaint and draw[] all reasonable inferences in the
plaintiff’s favor.” Henry v. County of Nassau, 6 F.4th 324, 328 (2d Cir.
2021) (quoting Fink v. Time Warner Cable, 714 F.3d 739, 740-41 (2d Cir.
2013)).
I
Platinum and palladium, members of the same element family,
are versatile metals. The metals are used in “catalytic converters,
laboratory equipment, electrodes, and dentistry equipment.” App’x
372 (footnote omitted). Besides these industrial applications,
platinum and palladium are used in jewelry and are traded by
investors. In 2013 alone, the gross demand for platinum and
palladium was over 8 million and 9.6 million ounces, respectively.
Aside from the traditional physical market, the metals are also
traded in futures and options markets, especially on the New York
Mercantile Exchange (“NYMEX”), “the leading centralized exchange
for platinum and palladium futures and options worldwide.” Id. at
381. On the NYMEX, “futures are standardized contracts that call for
the delivery of physical platinum or palladium … on a specified
date.” Id. In contrast to transactions involving physical metal, which
“are done between private parties,” the NYMEX “is the counterparty
to all transactions on the exchange” through “its clearinghouse, CME
Clearing.” Id. at 381. By “simultaneously buying and selling the
contract,” a clearinghouse “guarantees both sides of the trade and
6
ensures that neither buyer nor seller is exposed to any counterparty
credit risk.” In re Amaranth Nat. Gas Commodities Litig., 730 F.3d 170,
174 (2d Cir. 2013). Since 2011, the aggregate annual value of platinum
and palladium futures has surpassed $100 billion and $40 billion,
respectively.
The defendants include BASF Metals Ltd. (“BASF Metals”),
Goldman Sachs International (“Goldman Sachs”), HSBC Bank USA,
N.A. (“HSBC”), and ICBC Standard Bank PLC (“ICBC”) (collectively,
the “Fixing Members”). BASF Metals is a company organized under
the laws of the United Kingdom with its principal place of business
in London, England, that engages in “precious metals commodity
dealing.” App’x 363. Goldman Sachs, HSBC, and ICBC are financial
services companies and, according to the plaintiffs, each company
“holds substantial market share in Physical and NYMEX Platinum
and Palladium.” Id. at 366-68. The three financial services companies
each conduct proprietary trading and also execute client trades.
HSBC’s principal place of business is in McLean, Virginia; Goldman
Sachs’s and ICBC’s principal places of business are in London,
England.
Between 2008 and 2014, there was a formal process for
establishing the market spot price for platinum and palladium called
the “Fixing.” Id. at 373. The Fixing was conducted twice daily—in an
“AM Fixing” and a “PM Fixing”—with a private conference call that
would set global benchmark prices for platinum and palladium. To
conduct the Fixing, BASF Metals, Goldman Sachs, HSBC, and ICBC
established the London Platinum and Palladium Fixing Company
Ltd. (“LPPFC”). The LPPFC has its principal place of business in
London, England, and “is 100% owned and controlled” by the four
7
entities that founded it. Id. at 371. Its “only function is to take on and
continue the promotion, administration and conduct of [the Fixing].”
Id. (internal quotation marks omitted).
The Fixing was designed to be conducted as a Walrasian
auction. 1 One of the four founding entities would serve as the chair of
the auction, and the chair would announce an opening price
“ostensibly at or near the current spot price.” App’x 374. Each of the
other three founding entities would then declare itself to be a net
buyer or a net seller or to have no interest. The chair would adjust the
price until there was no (or nearly no) net interest in buying or selling,
and the resulting price would serve as the benchmark price—or the
“Fix price.”
Once the chair announced the benchmark price, the orders of
the auction participants could not be retracted. But the effects of the
benchmark extended beyond those orders. Market participants
uninvolved in the Fixing frequently incorporated the benchmark
prices in contracts. When buyers and sellers entered “spot”
contracts—pursuant to which the contracting parties agreed to
consummate the purchase and sale of physical platinum or
palladium—the “spot price” was “often tied or keyed to the relevant
metal’s Fixing on the day of the sale.” Id. at 380. Because the prices of
NYMEX platinum and palladium closely tracked the spot prices of
1In a Walrasian auction, each trader “submit[s] his demand, or even his
demand schedule,” to the auctioneer, who “aggregates traders’ demands
and supplies to find a market-clearing price.” Maureen O’Hara, Market
Microstructure Theory 4 (1995). In this way, the final price is the result of “an
unseen trading game in which buyers and sellers costlessly exchange
assets.” Id.
8
those metals, the result was that “[t]he spot, Fix, and NYMEX
settlement prices exhibit[ed] an almost perfect correlation.” Id. at 387.
II
The Fixing would have been “a competitive process” if it were
conducted properly. Id. at 352. The plaintiffs allege that it was not so
conducted.
The plaintiffs-appellants in this case are Larry Hollin, White
Oak Fund LP (“White Oak”), and KPFF Investment, Inc. (“KPFF”).
Hollin and White Oak sold NYMEX platinum or palladium futures
contracts (collectively, the “Exchange Plaintiffs”). KPFF sold physical
platinum and palladium. All of the plaintiffs-appellants reside in the
United States.
According to the plaintiffs, the defendants had the opportunity
and the motive to use the Fixing to manipulate the benchmark prices
of platinum and palladium toward lower prices. The plaintiffs alleged
collusion among the defendants in several ways. Each Fixing call
“involved the direct exchange of intended or future price information
among horizontal competitors.” Id. at 448. The defendants also moved
the market downward by coordinating large sell orders, which would
lower the opening price for the Fixing. During the Fixing itself, the
defendants affected the benchmark price by “submit[ting] aggregate
‘auction’ ‘bids’ that understated demand.” Id. at 452. All the while, the
defendants coordinated their behavior using “chat rooms, instant
messages, phone calls, proprietary trading venues and platforms, and
e-mails.” Id. at 449. The motive for such collusion, the plaintiffs
contend, was that the defendants “are traders of Physical and
NYMEX Platinum and Palladium and … had large short futures
positions on NYMEX.” Id. at 474.
9
Five complaints based on this alleged conduct—each seeking
to bring claims individually and on behalf of a class—were filed
between November 2014 and March 2015. On March 20, 2015, the
district court consolidated the five cases. Four months and two
amendments later, the plaintiffs filed a second consolidated class
action complaint. This second amended complaint named BASF
Metals, Goldman Sachs, HSBC, ICBC, the LPPFC, BASF Corporation,
UBS AG, and UBS Securities LLC as defendants. BASF Corporation,
a “carrier, assayer, and refiner of platinum and palladium,” is a sister
company of BASF Metals and is registered in Delaware. Id. at 85-86.
UBS AG and UBS Securities—a wholly owned subsidiary of UBS
AG—are financial services companies involved in trading physical
and NYMEX platinum and palladium.
The second amended complaint brought seven causes of action
alleging (1) an agreement restraining trade in violation of the
Sherman Act, 15 U.S.C. § 1, (2) five violations of the CEA, 7 U.S.C. § 1et seq., and (3) unjust enrichment. The plaintiffs alleged that the
“manipulation of the Fixing by the Defendants impacted” the
plaintiffs’ transactions and caused the plaintiffs “to incur greater
losses and/or realize lower prices than they would have realized in a
free and open competitive market.” Id. at 193. The plaintiffs also
sought to certify a class of persons and entities similarly situated who
engaged in certain transactions in platinum or palladium during the
period from January 1, 2008, through November 30, 2014.
The defendants moved to dismiss the complaint, and the
district court granted the motion in part and denied it in part. In re
Platinum & Palladium Antitrust Litig. (Platinum I), No. 14-CV-9391,
2017 WL 1169626, at *2 (S.D.N.Y. Mar. 28, 2017). First, after noting that
10
the complaint “is silent with respect to whether … Plaintiffs had any
direct sales to or purchases from Defendants,” the district court
dismissed the plaintiffs’ claim under the Sherman Act for lack of
antitrust standing. Id. at *20-25. Second, the district court denied the
defendants’ motion to dismiss the CEA claims, granting the motion
only with respect to the plaintiffs’ claims “based on false reports and
transactions that precede the effective date of” Commodity Futures
Trading Commission (“CFTC”) Rule 180.1. Id. at *36. Third, because
the plaintiffs did not allege any direct transactions with the
defendants, the district court held that “they have not adequately
pleaded that Defendants were enriched at their expense” and
dismissed the unjust enrichment claim. Id. at *38. Additionally, the
district court dismissed all claims against BASF Corporation, UBS
AG, and UBS Securities for failure to state how those entities were
involved in the alleged misconduct. See id. at *51 (“UBS is not alleged
to have been a member of the Fixing during the Class Period, or to
have participated in the Fixing, either directly or indirectly.”); id. at
*52 (“[T]he [complaint] says nothing about BASF Corp.’s
involvement—direct or indirect—in the alleged price manipulation,
BASF Corp.’s role in executing the scheme, or BASF Corp.’s motive in
artificially suppressing the Fix Price.”).
BASF Metals, ICBC, and the LPPFC (collectively, the “Foreign
Defendants”) also filed a motion to dismiss the complaint for lack of
personal jurisdiction, which the district court granted. Id. at *2. The
district court held that the plaintiffs “have not made a prima facie
showing that the Foreign Defendants have sufficient contacts with the
United States as a whole.” Id. at *44. Additionally, the district court
rejected the plaintiffs’ argument that it could hear the suit under a
theory of conspiracy jurisdiction. Id. at *49. The district court
11
concluded its order by granting the plaintiffs leave to amend the
complaint a third time. Id. at *53.
On May 15, 2017, the plaintiffs filed a third amended complaint
that differed from the previous complaint in several respects. The
complaint no longer named the LPPFC, BASF Corporation, UBS AG,
and UBS Securities as defendants. It also no longer brought claims for
unjust enrichment or CEA claims based on Rule 180.1 for conduct that
preceded the rule’s enactment.
Most important, the plaintiffs added allegations relating to
antitrust standing and personal jurisdiction. As to antitrust standing,
the complaint provided allegations to demonstrate “[t]he close
relationship between the Fix[ing] and NYMEX futures prices,” “[t]he
Defendants’ substantial market share in physical platinum and
palladium as well as NYMEX platinum and palladium futures and
options,” and “Plaintiffs’ ability to assess damages through
discovery.” App’x 350-51. As to personal jurisdiction, the complaint
provided allegations “pertaining to [BASF Metals’s and ICBC’s]
continuous presence in the U.S. and their suit-related conduct in the
U.S.” Id. at 350.
While the third amended complaint was pending, this court
decided Charles Schwab Corp. v. Bank of America Corp. (Schwab I), 883
F.3d 68 (2d Cir. 2018), and Prime International Trading, Ltd. v. BP P.L.C.,
937 F.3d 94 (2d Cir. 2019). Those cases addressed, respectively,
whether a conspiracy theory of jurisdiction establishes personal
jurisdiction over a co-conspirator and whether the CEA has
extraterritorial application. See Schwab I, 883 F.3d at 86-87; Prime Int’l,
937 F.3d at 102-04. In response to Prime International, the defendants
sought reconsideration of the district court’s denial of the motion to
12
dismiss with respect to the CEA claims. In re Platinum & Palladium
Litig. (Platinum II), 449 F. Supp. 3d 290, 302 (S.D.N.Y. 2020).
Taking the new allegations and the recent case law into
account, the district court dismissed in part the third amended
complaint. Id. at 298. The district court again concluded that the
plaintiffs lacked antitrust standing, but this time the district court
separately analyzed the antitrust standing of KPFF, which transacted
solely in physical platinum and palladium, and the antitrust standing
of the other plaintiffs, which transacted on the NYMEX. Id. at 303. The
district court held that KPFF lacked antitrust standing because “the
[complaint] does not allege that [KPFF] transacted directly with any
defendant.” Id. at 304. With respect to the plaintiffs that transacted on
the NYMEX, the district court was persuaded that the “line between
those who transacted directly with defendants and those who did
not” had little meaning in the exchange context. Id. at 311. Instead, the
district court adopted a “market domination” test that other district
courts in this circuit have applied. Id. at 312. Under that test, plaintiffs
must “allege that defendants dominated the relevant exchange
market” to establish antitrust standing. Id. (“Recognizing that
counterparties to exchange plaintiffs are not reasonably ascertainable,
judges in this district have adopted a test that depends primarily on
the extent of defendants’ control of the market for the product traded
on the exchange.”) (internal quotation marks omitted). Because it
determined that the NYMEX plaintiffs “have not adequately pleaded
that Defendants dominated the NYMEX market for platinum and
palladium derivatives,” the district court held that those plaintiffs
lacked antitrust standing as well. Id. at 317.
13
The district court reached a different conclusion with respect to
personal jurisdiction. The district court understood Schwab I to allow
the exercise of personal jurisdiction in this case if “United-States-
based co-conspirators acted in furtherance of the conspiracy.” Id. at
323-24 (internal quotation marks omitted). Because the third
amended complaint “alleges United-States based traders for affiliates
of BASF Metals and [ICBC] provided non-public client order
information directly to Fixing participants” in furtherance of the
conspiracy, the district court held that it had personal jurisdiction
over BASF Metals and ICBC. Id. at 325-26. The district court denied
the defendants’ motion to dismiss under Rule 12(b)(2).
Success on the jurisdictional issue did not mean overall success
for the plaintiffs, however, because the district court granted the
defendants’ motion to reconsider its holding on the CEA claims. Id. at
332. Based on Prime International, the district court concluded that the
plaintiffs’ CEA claims “are predominantly foreign” and therefore
“impermissibly extraterritorial.” Id. at 331. The district court
dismissed the CEA claims without prejudice and granted the
plaintiffs leave to amend the Sherman Act and CEA claims. Id. at 332-
33.
In sum, the district court denied BASF Metals’s and ICBC’s
motion to dismiss for lack of personal jurisdiction, but it granted the
defendants’ motion to dismiss for failure to state a claim as well as the
defendants’ motion for reconsideration. Rather than file another
amended complaint, the plaintiffs requested that the district court
enter final judgment, which the district court did on April 15, 2020. Of
the plaintiffs, only Hollin, White Oak, and KPFF appealed. BASF
Metals and ICBC cross-appealed the district court’s denial of their
14
motion to dismiss for lack of personal jurisdiction.
DISCUSSION
“We review de novo the grant of a motion to dismiss, accept as
true all factual claims in the complaint, and draw all reasonable
inferences in the plaintiffs’ favor.” In re Aluminum Warehousing
Antitrust Litig., 833 F.3d 151, 157 (2d Cir. 2016).
According to the plaintiffs, the district court erred (1) in
holding that the plaintiffs lack antitrust standing, (2) in holding that
the CEA claims were impermissibly extraterritorial, (3) in dismissing
the LPPFC for lack of personal jurisdiction, and (4) in dismissing the
second amended complaint as to BASF Corporation for failure to state
a claim. BASF Metals and ICBC—the only cross-appellants in this
case—argue that the district court erred in holding that it had
personal jurisdiction to hear claims against them. We address these
arguments in turn.
I
We begin with the plaintiffs’ Sherman Act claims. Section 1 of
the Sherman Act provides that “[e]very contract, combination in the
form of trust or otherwise, or conspiracy, in restraint of trade or
commerce among the several States … is declared to be illegal.”
15 U.S.C. § 1. The Clayton Act provides a private cause of action for
injuries “by reason of anything forbidden in the antitrust laws,” id.§ 15(a), as well as a private cause of action to seek “injunctive relief …
against threatened loss or damage by a violation of the antitrust
laws,” id. § 26. The plaintiffs claim that the defendants violated the
Sherman Act when they “conspir[ed] to manipulate platinum and
palladium market prices and the benchmark price” and seek treble
15
damages and injunctive relief because the conspiracy affected “the
price of Physical and NYMEX Platinum and Palladium.” App’x 491-
92.
The district court dismissed these claims for lack of antitrust
standing. The antitrust standing requirement “originates in the
Supreme Court’s recognition that … ‘Congress did not intend the
antitrust laws to provide a remedy in damages for all injuries that
might conceivably be traced to an antitrust violation.’” Daniel v. Am.
Bd. of Emergency Med., 428 F.3d 408, 436-37 (2d Cir. 2005) (quoting
Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters
(AGC), 459 U.S. 519, 534 (1983)). “To establish antitrust standing, a
plaintiff must show (1) antitrust injury, which is injury of the type the
antitrust laws were intended to prevent and that flows from that
which makes defendants’ acts unlawful, and (2) that he is a proper
plaintiff in light of four efficient enforcer factors.” Schwab Short-Term
Bond Mkt. Fund v. Lloyds Banking Grp. PLC (Schwab II), 22 F.4th 103,
115 (2d Cir. 2021) (internal quotation marks omitted). Whether a
plaintiff is an efficient enforcer depends on:
(1) the directness or indirectness of the asserted injury;
(2) the existence of more direct victims or the existence of
an identifiable class of persons whose self-interest would
normally motivate them to vindicate the public interest
in antitrust enforcement; (3) the extent to which the claim
is highly speculative; and (4) the importance of avoiding
either the risk of duplicate recoveries on the one hand, or
the danger of complex apportionment of damages on the
other.
In re Am. Express Anti-Steering Rules Antitrust Litig., 19 F.4th 127, 138
(2d Cir. 2021) (internal quotation marks omitted). “[T]he weight to be
16
given the various factors will necessarily vary with the circumstances
of particular cases.” Daniel, 428 F.3d at 443.
The district court separately analyzed the antitrust standing of
KPFF, which traded in the physical market for platinum and
palladium, and the antitrust standing of the Exchange Plaintiffs, who
traded only on the exchange market for those metals. It determined
that none of the plaintiffs were efficient enforcers and that no plaintiff
had antitrust standing. We agree with the district court as to KPFF but
disagree as to the other plaintiffs. We hold that the Exchange Plaintiffs
have antitrust standing.
A
We first consider whether KPFF has antitrust standing. KPFF
alleges that it “sold physical platinum and palladium … at artificial
prices proximately caused by Defendants’ unlawful manipulation.”
App’x 362. The district court determined that the complaint “does not
allege that [KPFF] transacted directly with any defendant,” Platinum
II, 449 F. Supp. 3d at 304, and KPFF on appeal concedes that it “did
not transact with a Defendant,” Appellants’ Br. 45. Based on the
efficient-enforcer factors, we agree with the district court that KPFF
lacks antitrust standing in this case.
1
The first efficient-enforcer factor—“whether the violation was
a direct or remote cause of the injury”—turns on “familiar principles
of proximate causation.” Am. Express, 19 F.4th at 139. “In the context
of antitrust standing, proximate cause generally follows the first-step
rule.” Id. That rule “requires some direct relation between the injury
asserted and the injurious conduct alleged.” Id. at 140 (internal
17
quotation marks omitted); see also Gatt Commc’ns, Inc. v. PMC Assocs.,
L.L.C., 711 F.3d 68, 78 (2d Cir. 2013) (“Directness in the antitrust
context means close in the chain of causation.”) (quoting IBM Corp. v.
Platform Sols., Inc., 658 F. Supp. 2d 603, 611 (S.D.N.Y. 2009)).
“Our court has repeatedly followed the first-step rule in the
antitrust context.” Am. Express, 19 F.4th at 140. In American Express,
we held that merchants who complained of anticompetitive conduct
by American Express Company (“Amex”) but did not accept
American Express cards lacked antitrust standing to sue. Id. at 134-35.
We reasoned that, “[a]t the first step, Amex raised the price for Amex-
accepting merchants,” and only at a later step did Amex’s competitors
follow suit and raise the price for the plaintiff merchants. Id. at 140-
41. Accordingly, the plaintiff merchants’ injuries “were not
proximately caused by Amex; the alleged antitrust violation was
instead a ‘remote’ cause of the injuries.” Id. at 141.
In Schwab II, we considered the London Interbank Offered Rate
(“LIBOR”), a “benchmark interest rate” that “serves as an index for a
variety of financial instruments, including bonds, interest rate swaps,
commercial paper, and exchange-traded derivatives.” Schwab II,
22 F.4th at 109-10. Bondholders who “held LIBOR-based bonds issued
by third parties” alleged that the defendant banks had manipulated
the LIBOR in violation of the antitrust laws. Id. at 111. We held that
those bondholders were not efficient enforcers because “the decision
of a third party to incorporate LIBOR as a term in a financial
instrument could be made without any connection to the actions” of
the defendant banks. Id. at 116. Additionally, that decision “in no way
enriched the [defendant banks], who had no financial stake in the
[third-party] transactions whatsoever.” Id. Accordingly, “[t]he first-
18
step rule and traditional proximate cause considerations require
drawing a line between those whose injuries resulted from their direct
transactions with the [defendant banks] and those whose injuries
stemmed from their deals with third parties.” Id.
We hold that KPFF has not alleged a direct injury in this case.
As in Schwab II, the decision to incorporate or reference the
benchmark price in the transactions into which KPFF entered—and
by which KPFF was allegedly harmed—was an independent decision.
The only transactions that were required to adopt the benchmark
prices were those into which the defendants entered as part of the
Fixing, and KPFF has concededly not transacted with the defendants.
We said in Schwab II that the “disconnect” between the
plaintiffs’ injury and the defendants’ alleged benefit “further
demonstrates the attenuated nature of the causal chain.” Id. In other
words, the allegedly harmful transactions in that case “in no way
enriched” the defendants. Id. In this case, KPFF alleges that the
conspiracy enabled the defendants, as “large participants in the
market for physical platinum and palladium,” to “buy platinum and
palladium cheaper than they would have been able to” otherwise,
App’x 466, just as the defendant banks in Schwab II “may have
increased their profits by selling LIBOR-indexed instruments,”
22 F.4th at 116. But the defendants “derived no benefit from [KPFF’s]
transactions with third parties,” which “were entirely separate from
the purpose of the alleged conspiracy and took place merely because
of [the benchmark’s] unlimited public availability as a reference point
for innumerable transactions.” Id. at 117.
KPFF argues that this case differs from Schwab II because, in
this case, KPFF alleges a “lockstep” relationship between the
19
benchmark prices and the spot prices—and provided “the kind of
statistical allegations” to prove that relationship—that was absent
from the Schwab II plaintiffs’ case. Appellants’ Supp. Br. 14. In Sanner
v. Board of Trade, the Seventh Circuit characterized the futures market
and the cash market for the same commodity as exhibiting a
“lockstep” relationship. 62 F.3d 918, 929 (7th Cir. 1995). 2 To prove that
such a relationship is present here, KPFF provides charts to show that
“[t]he spot, Fix, and NYMEX settlement prices exhibit an almost
perfect correlation.” App’x 387-88.
We disagree that Schwab II can be framed as a mere failure of
proof. In Schwab II, the plaintiffs held “LIBOR-based bonds,” which
“incorporate[d] LIBOR as a term.” 22 F.4th at 116. If the court were
merely seeking evidence of a close relationship between LIBOR and
the plaintiffs’ bonds, the incorporation of the benchmark into the
bonds would have sufficed. Instead, we found it significant that the
plaintiffs independently decided to incorporate the LIBOR in
contracts with third parties; those decisions “snap the chain of
causation linking [p]laintiffs’ injury to the [b]anks’ misconduct.” Id.
2 Sanner involved the Chicago Board of Trade’s July 11, 1989, resolution that
“required all holders of gross long positions in soybean futures contracts to
liquidate their positions by at least 20 percent daily until July 20, 1989.”
62 F.3d at 920-21. The plaintiffs were soybean farmers who alleged that the
resolution “was prompted by a conspiracy to cause a precipitous drop in
soybean cash crop prices” and brought antitrust claims against the Board.
Id. at 921. Despite the farmers being in the cash market for soybeans, as
opposed to the futures market, the court held that “[s]ince one market tends
to move in lockstep with the other, participants in the cash market can be
injured by anticompetitive acts committed in the futures market.” Id. at 929.
The court held that the farmers had alleged a direct injury for purposes of
antitrust standing.
20
Accordingly, KPFF’s causal link between the benchmark prices
and its own transactions—even if more fully documented than the
one in Schwab II—does not transform its indirect injury into a direct
one. As in Schwab II, transactions in the commodity (here, platinum
and palladium) were “often tied or keyed to” the benchmark prices,
but KPFF’s injury was separated from the defendants’ conduct by the
decision to incorporate the benchmark. App’x 380.
We hold that KPFF’s injury is indirect for purposes of antitrust
standing.
2
The remaining efficient-enforcer factors do not establish
antitrust standing for KPFF. As noted above, “the weight to be given
the various factors will necessarily vary with the circumstances of
particular cases.” Daniel, 428 F.3d at 443. “Though Associated General
Contractors outlined a comprehensive approach to the question of
antitrust standing, it gives little guidance as to how to weigh the
various factors, and whether the absence of a particular factor would
be fatal to standing in every instance.” Sullivan v. Tagliabue, 25 F.3d
43, 46 (1st Cir. 1994). We look to our precedents to decide how the
efficient-enforcer factors must be balanced. In this case, the first and
second factors are decisive.
We held in Schwab II that the second factor—“the existence of
more direct victims of the alleged conspiracy”—“clearly weighs
against antitrust standing since there is no shortage of other parties in
this very case who purchased LIBOR-indexed financial instruments
directly” from the defendants. 22 F.4th at 118. In this case, the fact that
there are platinum and palladium sellers who have directly
transacted with the defendants “diminishes the justification for
21
allowing a more remote party to perform the office of a private
attorney general.” Am. Express, 19 F.4th at 141 (alteration omitted)
(quoting AGC, 459 U.S. at 542). The second factor “weighs against
antitrust standing” for that reason. Schwab II, 22 F.4th at 118.
The fourth efficient-enforcer factor—“the importance of
avoiding either the risk of duplicate recoveries on the one hand, or
the danger of complex apportionment of damages on the other”—
favors the plaintiffs, as it did in Schwab II. 22 F.4th at 119. The fourth
factor guards against “pass-on theories that would require a court to
divide damages from the same violation among multiple plaintiffs.”
Am. Express, 19 F.4th at 143; see also Schwab II, 22 F.4th at 119
(describing pass-on theories as “the usual focus” of the fourth factor).
We held in Schwab II that the fourth factor favored the plaintiffs
because “the third parties who sold the bonds—and benefited from the
suppressed rate—would clearly not be in a position to enforce the
antitrust laws.” 22 F.4th at 119. The same logic applies in this case.
Whoever purchased palladium or platinum from KPFF benefited
from the lowered price, and there is no concern that those purchasers
would sue the defendants or cause any complex problems of
apportionment. Thus, we “view this fourth factor as favoring” KPFF.
Id.
This case differs from Schwab II with respect to the third
efficient-enforcer factor—“whether the alleged damages are highly
speculative.” Id. (internal quotation marks omitted). The third factor
evaluates whether the plaintiff can produce “a just and reasonable
estimate of damages.” Gelboim v. Bank of Am. Corp., 823 F.3d 759, 779
(2d Cir. 2016) (internal quotation marks omitted) (quoting U.S.
Football League v. Nat’l Football League, 842 F.2d 1335, 1378 (2d Cir.
22
1988)). “[H]ighly speculative damages is a sign that a given plaintiff
is an inefficient engine of enforcement.” Id. In Schwab II, we held that
this factor cut against antitrust standing because calculating damages
“would require the court to speculate about how the third-party
sellers would have factored a non-suppressed LIBOR into the
transaction.” 22 F.4th at 119. To estimate the damages, the plaintiffs
“would essentially have to create an alternative universe” beyond
modeling “basic lost sales and lost profits.” Id. (internal quotation
marks and alterations omitted). At the same time, we gave this factor
“only limited weight” because the damages calculation would be
“more straightforward” for the plaintiffs who purchased bonds prior
to the LIBOR being suppressed and because “[t]he Supreme Court has
warned that antitrust standing should not provide a ‘get-out-of-court-
free card’ to be played ‘any time that a damages calculation might be
complicated.’” Id. (quoting Apple Inc. v. Pepper, 139 S. Ct. 1514, 1524
(2019)).
The third factor favors KPFF in this case. Unlike in Schwab II,
the benchmark prices for platinum and palladium are derived from
the same kind of transactions that incorporated the benchmark prices.
Damages were speculative in Schwab II because the LIBOR aimed to
describe the rate at which certain banks could borrow money but it
was incorporated into the terms of unrelated bonds. That disjunction
meant that the plaintiffs would have needed to account for such
possibilities as whether “the price of the bond itself may have been
correspondingly lowered to account for a suppressed LIBOR.” Id. In
this case, the benchmark price describes the price at which the
defendants buy metal, and KPFF alleges that the benchmark price
was used in its transactions to sell the same type of metal. KPFF has
provided data to show that the prices at which it sold the metal and
23
the benchmark prices were all but identical. Thus, even though the
“damages calculation might be complicated,” Apple, 139 S. Ct. at 1524,
the damages are not so speculative as to weigh against antitrust
standing in this case.
Even so, we ultimately conclude that KPFF cannot pursue its
antitrust claims. “The four efficient-enforcer factors need not be given
equal weight,” and the fact that KPFF’s injury “may have been
foreseeable, predictable, and even calculable” is not by itself sufficient
to confer antitrust standing. Am. Express, 19 F.4th at 142. In American
Express, we determined that only the first two efficient-enforcer
factors weighed against standing. Id. at 143. We nevertheless held that
because “[t]he key principle underlying [the efficient enforcer test] is
proximate cause” and the plaintiffs “fail[ed] to show the required
direct connection between the harm and the alleged antitrust
violation,” the plaintiffs lacked antitrust standing. Id. In the same
way, the absence of a direct connection between the harm and the
violation and the existence of more direct victims are decisive here.
We affirm the district court’s dismissal of KPFF’s antitrust claims.
B
We next consider whether the Exchange Plaintiffs have alleged
antitrust standing. The Exchange Plaintiffs did not participate in the
physical platinum and palladium market; instead, the Exchange
Plaintiffs allegedly sold “NYMEX platinum and palladium futures
contracts at artificial prices proximately caused by Defendants’
unlawful manipulation.” App’x 361. The district court held that these
plaintiffs also lacked antitrust standing.
We disagree. The antitrust standing question depends on “the
relationship between the defendant’s alleged unlawful conduct and
24
the resulting harm to the plaintiff.” Am. Express, 19 F.4th at 143
(quoting Am. Ad Mgmt., Inc. v. Gen. Tel. Co. of Cal., 190 F.3d 1051, 1058
(9th Cir. 1999)). “We employ the efficient-enforcer test to evaluate the
relevant relationship.” Id. After considering the four factors, we hold
that the Exchange Plaintiffs are efficient enforcers of the antitrust
laws.
1
Unlike KPFF, the Exchange Plaintiffs suffered a direct injury.
The complaint alleges that the defendants were “large participants in
NYMEX futures and options” and “profited from their manipulation”
of the futures market. App’x 466. The Exchange Plaintiffs argue that
the defendants “exploited their foreknowledge of downward swings
in the [benchmark price] to make advantageous trades in … [the]
NYMEX markets.” Appellants’ Br. 10. Apart from the Fixing itself, the
Exchange Plaintiffs allege that the defendants engaged in collusive
trading to move the NYMEX market downward. According to the
Exchange Plaintiffs, the defendants “profited from their manipulation
… at the expense of” the Exchange Plaintiffs. App’x 466. In other
words, the defendants manipulated the futures market to profit from
futures contracts transactions, while the Exchange Plaintiffs
simultaneously lost money through futures contracts transactions in
the same market. The Exchange Plaintiffs were harmed at the first
step.
The defendants argue that the plaintiffs’ injury cannot be direct
because, as the complaint notes, “NYMEX—through its
clearinghouse, CME Clearing—is the counterparty to all transactions
on the exchange.” Id. at 381. Thus, although the Exchange Plaintiffs
and the defendants all traded in the same market, each traded directly
25
only with CME Clearing. According to the defendants, “[t]he
reasoning in Schwab II applies with full force to the Exchange
Plaintiffs” because the Exchange Plaintiffs “did not transact with any
defendant.” Appellees’ Supp. Br. 7 n.2.
We disagree. “Futures trading is a zero-sum game” because
“every contract has a long and a short” and “every gain can be
matched with a corresponding loss.” Leist v. Simplot, 638 F.2d 283, 286-
87 (2d Cir. 1980). Although CME Clearing is, formally, the
counterparty to every transaction, it serves only as a conduit: “CME
Clearing matches buyers and sellers.” App’x 382; see also Amaranth
Nat. Gas, 730 F.3d at 174 (“All trades on NYMEX must go through the
exchange’s clearinghouse.”) (emphasis added). We would have no
difficulty identifying a direct injury if the defendants had selected
another NYMEX participant with which to execute a futures contract,
even if a clearinghouse facilitated the transaction. To argue, as the
defendants do, that interposing a clearinghouse immunizes
misconduct on an exchange market from antitrust liability is to exalt
form over substance. 3
3We note that this case differs from Laydon v. Coöperatieve Rabobank U.A., in
which we held that a plaintiff who traded Euroyen TIBOR futures on an
exchange lacked antitrust standing. 55 F.4th 86, 98-99 (2d Cir. 2022). In that
case, a plaintiff alleged that defendant banks made fraudulent submissions
to the British Bankers’ Association, a body that set the Yen-LIBOR
benchmark rate, which in turn affected a second benchmark rate that was
set by the Japanese Bankers Association, causing losses to traders in futures
that referenced the second benchmark rate. We said that the plaintiff failed
to allege proximate causation because of the “series of causal steps that
separate [the d]efendants’ conduct and [the plaintiff’s] purported injury.”
Id. at 98. In this case, the defendants transacted on the same exchange as the
Exchange Plaintiffs and we do not have the same attenuated causal chain.
26
The district court viewed the effect of the clearinghouse
differently than the defendants. Because of the clearinghouse, the
district court concluded that “the Exchange Plaintiffs’ counterparties
are not reasonably ascertainable” and instead used market
dominance as a proxy for directness of injury. Platinum II, 449
F. Supp. 3d at 311. According to the district court, “in a market in
which defendants dominate, it is far more likely that a plaintiff who
bought on an exchange will have transacted directly with a
defendant.” Id. at 312. Additionally, “concern[s] about damages
disproportionate to wrongdoing” would “appl[y] much less
forcefully” when the defendants dominate the market; “where
defendants had over 90% market share, they would also be
responsible for over 90% of the damages.” Id. In adopting this test, the
district court followed other district courts in this circuit. See, e.g., In
re London Silver Fixing, Ltd., Antitrust Litig., 332 F. Supp. 3d 885, 909
(S.D.N.Y. 2018); Sonterra Cap. Master Fund Ltd. v. Credit Suisse Grp. AG,
277 F. Supp. 3d 521, 561-62 (S.D.N.Y. 2017).
Although the defendants’ market share may inform the amount
of damages the Exchange Plaintiffs can seek, we disagree that it can
render the Exchange Plaintiffs’ injury indirect. “The first-step rule
requires some direct relation between the injury asserted and the
injurious conduct alleged.” Am. Express, 19 F.4th at 139-40. Market
dominance does not determine whether such a relation exists. The
defendants allegedly sought to profit from concurrently
manipulating the Fixing and entering the futures market. That profit
came at the expense of the other futures market participants. The
members of that group are—as the defendants contend—
interchangeable, and that group includes the Exchange Plaintiffs.
That the defendants’ profits cannot be traced to a subgroup of those
27
market participants is not a reason to conclude that none of those
participants suffered a direct injury. To hold otherwise would be to
hold that anticompetitive behavior on an exchange can directly injure
no one.
We conclude that the Exchange Plaintiffs have adequately
alleged a direct injury.
2
We hold that the remaining efficient-enforcer factors favor
antitrust standing for the Exchange Plaintiffs as well.
First, there are no more direct victims than the Exchange
Plaintiffs. Because all participants in the NYMEX transact through the
clearinghouse, there is no injured party closer to the defendants’
alleged anticompetitive activity than the Exchange Plaintiffs. If the
Exchange Plaintiffs do not have antitrust standing, the defendants’
alleged conspiracy to manipulate the exchange market would go
“undetected or unremedied.” Am. Express, 19 F.4th at 141 (quoting
AGC, 459 U.S. at 542).
The defendants contend that the existence of sellers who sold
physical platinum and palladium to the defendants means that those
sellers are more direct victims. According to the defendants, “[t]he
question is whether there are ‘more direct victims of the alleged
conspiracy,’ not among a particular subset of those allegedly affected.”
Appellees’ Supp. Reply Br. 4 (quoting Schwab II, 22 F.4th at 118).
Because the conspiracy sought to affect the physical platinum and
palladium market in addition to the futures market, the defendants
argue, the second factor must take the victims in that market into
account as well.
28
The defendants’ argument rests on false premises. The
assertion that the direct victims in the physical market are better
situated to sue is based on the defendants’ argument that the
Exchange Plaintiffs are indirect victims. But because we hold that the
Exchange Plaintiffs are direct victims, even if we were to include the
victims in the physical market in our analysis, there is no reason to
think that those victims are more direct than the Exchange Plaintiffs.
Nor does it make sense for victims in one market to disqualify victims
in a different market from bringing suit. 4
In In re Aluminum Warehousing Antitrust Litigation, we held that
purchasers in the physical aluminum market who had alleged a
conspiracy by traders in the aluminum futures market had not
suffered an antitrust injury. 833 F.3d at 161-62. We reached that
conclusion by treating the physical market as separate from the
futures market; because typically “only those that are participants in
the defendants’ market can be said to have suffered antitrust injury,”
we dismissed the plaintiffs’ claims without reaching the efficient-
enforcer analysis. Id. at 158. In this case, the physical market victims
cannot allege the same type of injury that the Exchange Plaintiffs
suffered. It is hard to see how the “self-interest” of those victims can
render the Exchange Plaintiffs’ suit—alleging injuries in a different
and larger market—superfluous. Am. Express, 19 F.4th at 141.
Second, we do not think that calculating damages would be so
“highly speculative” that the Exchange Plaintiffs should be denied
antitrust standing. AGC, 459 U.S. at 542. “A damages calculation for a
4In Laydon, we concluded that the plaintiff was not a direct victim of the
alleged conspiracy and for that reason looked for participants in other
markets who might be more direct victims. Laydon, 55 F.4th at 99.
29
market manipulation scheme, though it may require expert
testimony, is hardly beyond the ken of the federal courts.” Sanner, 62
F.3d at 930. “[S]ome degree of uncertainty stems from the nature of
antitrust law,” Gelboim, 823 F.3d at 779, but we generally require “that
the wrongdoer shall bear the risk of the uncertainty which his own
wrong has created,” id. (quoting In re DDAVP Direct Purchaser
Antitrust Litig., 585 F.3d 677, 689 (2d Cir. 2009)).
Third, there is no risk of “duplicate recoveries” or “complex
apportionment of damages.” AGC, 459 U.S. at 544. There was no
intermediary between the Exchange Plaintiffs and the defendants
who could sue for the defendants’ anticompetitive conduct in the
exchange markets. Accordingly, recognizing antitrust standing in this
case would not “require a court to divide damages from the same
violation among multiple plaintiffs.” Am. Express, 19 F.4th at 143.
We hold that the Exchange Plaintiffs have antitrust standing to
proceed on their claims under the Clayton Act. 5
5KPFF and the Exchange Plaintiffs also seek injunctive relief under § 16 of
the Clayton Act. Because standing to sue for injunctive relief “raises no
threat of multiple lawsuits or duplicative recoveries,” the third and fourth
efficient enforcer factors “are not relevant” to standing to pursue such relief.
Cargill, Inc. v. Monfort of Colo., Inc., 479 U.S. 104, 111 n.6 (1986). Based on the
remaining factors, our disposition of KPFF’s and the Exchange Plaintiffs’
respective claims for injunctive relief is the same as each party’s claim for
damages. The Exchange Plaintiffs have antitrust standing, and KPFF does
not. However, we note that it is unclear what injunctive relief would be
available to the plaintiffs, given that the alleged misconduct occurred in the
past. The district court may consider on remand whether to dismiss the
Exchange Plaintiffs’ request for injunctive relief for failure to state a claim.
30
II
We now consider the district court’s dismissal of the plaintiffs’
CEA claims. The third amended complaint alleges that the defendants
manipulated the prices of platinum and palladium in violation of the
CEA, including CFTC Rule 180.2. In connection with that claim, the
plaintiffs also allege that the defendants are liable under principal-
agent and aiding-and-abetting theories for violations of the CEA. The
district court dismissed the plaintiffs’ CEA claims as impermissibly
extraterritorial. Platinum II, 449 F. Supp. 3d at 327-28. We disagree,
and we vacate the district court’s dismissal of those claims.
“The CEA is a remedial statute that serves the crucial purpose
of protecting the innocent individual investor—who may know little
about the intricacies and complexities of the commodities market—
from being misled or deceived.” Loginovskaya v. Batratchenko, 764 F.3d
266, 270 (2d Cir. 2014) (internal quotation marks omitted). Sections 6
and 9 of the CEA proscribe fraud in commodities markets. 7 U.S.C.
§ 9(1) (“It shall be unlawful for any person … to use or employ … in
connection with any swap, or a contract of sale of any commodity in
interstate commerce … any manipulative or deceptive device or
contrivance.”); id. § 13(a)(2) (“It shall be a felony … for … [a]ny person
to manipulate or attempt to manipulate the price of any commodity
in interstate commerce.”). 6 Private parties have a cause of action to
sue for violations of the CEA under section 22 of the Act, which
provides that “[a]ny person … who violates this chapter or who
6 See also 17 C.F.R. § 180.2 (“It shall be unlawful for any person, directly or
indirectly, to manipulate or attempt to manipulate the price of any swap, or
of any commodity in interstate commerce, or for future delivery on or
subject to the rules of any registered entity.”).
31
willfully aids, abets, counsels, induces, or procures the commission of
a violation of this chapter shall be liable for actual damages.” 7 U.S.C.
§ 25(a)(1).
In Prime International, this court held that sections 6, 9, and 22
do not apply extraterritorially. 937 F.3d at 102-03. Accordingly,
stating a proper claim under section 22 has two requirements. First,
because “the focus of congressional concern in Section 22 is clearly
transactional, ... the suit must be based on transactions occurring in
the territory of the United States.” Id. at 104 (internal quotation marks
omitted). In other words, “[t]he ‘domestic transaction test’ essentially
‘decides the territorial reach of Section 22.’” Id. (alteration omitted)
(quoting Loginovskaya, 764 F.3d at 272). Second, because section 22
“creates no freestanding, substantive legal obligations,” the plaintiff
must allege “domestic—not extraterritorial—conduct by Defendants
that is violative of a substantive provision of the CEA, such as
[7 U.S.C. § 9(1)] or [§ 13(a)(2)].” Id. at 105. 7
7 This two-part test comes from Parkcentral Global Hub Ltd. v. Porsche
Automobile Holdings SE, in which this court held that “a domestic
transaction is necessary but not necessarily sufficient to make [Securities
Exchange Act § 10(b)] applicable.” 763 F.3d 198, 216 (2d Cir. 2014); see Prime
Int’l, 937 F.3d at 105 (holding that “Parkcentral’s rule carries over to the
CEA”). Some courts have criticized the conduct requirement as
“inconsistent with Morrison.” SEC v. Morrone, 997 F.3d 52, 60 (1st Cir. 2021);
Stoyas v. Toshiba Corp., 896 F.3d 933, 950 (9th Cir. 2018). In Morrison v.
National Australia Bank Ltd., the Supreme Court held that § 10(b) does not
apply extraterritorially because the statute covers “only transactions in
securities listed on domestic exchanges, and domestic transactions in other
securities.” 561 U.S. 247, 265-67 (2010). The Supreme Court described its
“transactional test” as a “clear test” that asks “whether the purchase or sale
is made in the United States, or involves a security listed on a domestic
32
Under that analysis, the plaintiffs in this case have alleged a
domestic application of section 22. We have explained, in the context
of the Securities Exchange Act, that “there are two ways to allege a
‘domestic transaction’”: a plaintiff may allege either “that title … was
transferred within the United States” or “that the purchaser incurred
irrevocable liability within the United States to take and pay for a
security, or that the seller incurred irrevocable liability within the
United States to deliver a security.” Loginovskaya, 764 F.3d at 273-74(quoting Absolute Activist Value Master Fund Ltd. v. Ficeto, 677 F.3d 60,
68 (2d Cir. 2012)). The same test applies to CEA claims. Id. at 274.
Here, the plaintiffs have alleged domestic transactions in both ways.
First, the Exchange Plaintiffs allege that they sold NYMEX platinum
and palladium futures contracts. Such sales on a domestic futures
exchange are domestic transactions. See Morrison, 561 U.S. at 269-70(noting that the “transactional test” asks whether the purchase or sale
“is made in the United States, or involves a security listed on a
domestic exchange”); see also Loginovskaya, 764 F.3d at 273-74(applying this test in the context of the CEA). Second, KPFF, with a
principal place of business in California, alleges selling physical
platinum and palladium, thereby incurring liability to deliver those
commodities. The plaintiffs have adequately alleged that domestic
transactions took place.
exchange.” Id. at 269-70. Parkcentral held that, despite the presence of a
domestic transaction, § 10(b) did not apply because “the claims in this case
are so predominantly foreign as to be impermissibly extraterritorial.” 763
F.3d at 216. The court recognized that it was not straightforwardly applying
Morrison and cautioned that the conduct requirement could not be
“perfunctorily applied to other cases based on the perceived similarity of a
few facts.” Id. at 217.
33
The plaintiffs also allege domestic conduct by the defendants
that violated the CEA. To succeed at this step, the conduct must not
“be so predominantly foreign as to render the claims impermissibly
extraterritorial.” Prime Int’l, 937 F.3d at 107 (internal quotation marks
omitted). On this basis, in Prime International we dismissed the CEA
claims brought by plaintiffs who traded in Brent crude futures on the
NYMEX and who alleged manipulation of the benchmark for Brent
crude. We dismissed those claims because the benchmark—which
“reflect[ed], in part, the value of Brent crude physically traded in
Northern Europe”—was “foreign.” Id. at 106. Moreover, “[t]he
alleged misconduct … was also entirely foreign”; there was no
allegation that “any manipulative oil trading occurred in the United
States.” Id. Instead, the plaintiffs alleged only that the defendants—“a
diverse group of entities involved in various aspects of the production
of Brent crude”—“execut[ed] fraudulent bids, offers, and transactions
in the underlying physical Brent crude market.” Id. at 98, 100. Because
“[n]early every link in Plaintiffs’ chain of wrongdoing is entirely
foreign,” we held that the facts in Prime International were
predominantly foreign. Id. at 107.
This case is different. In Prime International we considered both
the benchmark and the misconduct by which the benchmark was
manipulated to be “entirely foreign.” Id. at 106. In this case, however,
the benchmark prices are based on the trading activity of BASF,
Goldman Sachs, HSBC, and ICBC, each of which conducts precious
metals trading in the United States. Furthermore, the alleged
misconduct of manipulating the benchmark prices involved both
foreign and domestic activity. According to the complaint, the
defendants “colluded to manipulate the price at which the chair
opened the Fixing on a given day by placing ‘spoof orders,’ engaging
34
in ‘wash sales,’ as well as collusively sharing and acting on non-public
information regarding client orders (including stop-loss orders)
shortly before and during the AM and PM Fixing.” App’x 485. “[B]y
moving Physical and NYMEX Platinum and Palladium prices in
advance of and even during the Fixing,” the plaintiffs allege, the
defendants “alter[ed] the starting price” for the Fixing and “g[ave]
cover to an auction-rate that would otherwise have stood out.” Id. at
355. The alleged “constant communication” between the defendants’
domestically based “precious metals traders” and “the participant[s]
in the Fixing” shows that much of the alleged manipulation was
domestic. Id. at 365, 368, 376.
The district court erred in discounting the defendants’ domestic
activity in furtherance of manipulating the Fixing. The district court
discounted the plaintiffs’ claim that the defendants traded in the
physical and NYMEX markets to influence the Fixing because it
“reject[ed] it as implausible.” Platinum II, 449 F. Supp. 3d at 332.
According to the district court, “[t]he suggestion that Defendants …
traded to further depress the price of platinum and palladium when
they had—according to Plaintiffs’ allegations—a tailor-made
opportunity to manipulate that price via the Fixing does not make
sense and is inconsistent with the allegations in the [third amended
complaint].” Id. But the plaintiffs did not allege that the defendants
traded to depress the market in a scheme independent of the Fixing;
the plaintiffs’ theory is that “[t]hese schemes were undertaken for the
purpose of manipulating the benchmark price.” App’x 485 (emphasis
added). The defendants’ collusive trading allegedly affected the
operation of the Fixing by “altering the starting price” and “inducing
clients to change their directions to the Defendants.” Id. at 355. The
35
collusive trading also served the purpose of “giving cover” to the
defendants’ manipulation of the Fixing. Id.
Because the district court dismissed the plaintiffs’ claims as
impermissibly extraterritorial, it did not consider the defendants’
additional arguments that the plaintiffs failed to plead the required
elements of a CEA claim. We hold only that the plaintiffs have alleged
sufficient domestic activity to invoke the CEA’s private remedy.
Accordingly, we vacate the district court’s dismissal of the plaintiffs’
CEA claims.
III
We turn to the issue of personal jurisdiction. In Platinum I, the
district court held that it lacked personal jurisdiction over the Foreign
Defendants: BASF Metals, ICBC, and the LPPFC. Platinum I, 2017 WL
1169626, at *44. In Platinum II, it held that BASF Metals and ICBC were
subject to conspiracy jurisdiction in light of Schwab I. 449 F. Supp. 3d
at 323. Because the plaintiffs did not replead their claims against the
LPPFC in the third amended complaint, the district court did not
revisit its earlier dismissal of the LPPFC in Platinum II. Id. at 300 n.4.
BASF Metals and ICBC argue that the district court erred in
Platinum II when it concluded that it had personal jurisdiction over
BASF Metals and ICBC. The plaintiffs argue that the LPPFC is the
alter ego of the Fixing Members and that the district court therefore
has personal jurisdiction over the LPPFC. We affirm the district
court’s judgment as to personal jurisdiction over the Foreign
Defendants.
36
A
We start with the district court’s most recent holding on
personal jurisdiction—that it had personal jurisdiction over BASF
Metals and ICBC. Platinum II, 449 F. Supp. 3d at 327. BASF Metals and
ICBC argue that the district court’s application of conspiracy
jurisdiction was inconsistent with the Due Process Clause of the Fifth
Amendment. In the context of personal jurisdiction, “due process
demands that each defendant over whom a court exercises
jurisdiction have some ‘minimum contacts with the forum such that
the maintenance of the suit does not offend traditional notions of fair
play and substantial justice.’” Schwab II, 22 F.4th at 121 (alteration
omitted) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)).
This inquiry usually proceeds in two steps—an analysis of whether
each defendant has “minimum contacts” with the forum state, and an
analysis of whether exercising jurisdiction would “comport with fair
play and substantial justice.” Licci ex rel. Licci v. Lebanese Canadian
Bank, SAL, 732 F.3d 161, 170 (2d Cir. 2013). We address each step, and
we affirm.
1
We begin with minimum contacts. There are two types of
personal jurisdiction: specific jurisdiction and general jurisdiction.
Bristol-Myers Squibb Co. v. Superior Court of Cal., 137 S. Ct. 1773, 1779-
80 (2017). Specific jurisdiction exists when a court “exercises personal
jurisdiction over a defendant in a suit arising out of or related to the
defendant’s contact with the forum,” and general jurisdiction “is
based on the defendant’s general business contacts with the forum
state and permits a court to exercise its power in a case where the
subject matter of the suit is unrelated to those contacts.” SPV OSUS,
37
Ltd. v. UBS AG, 882 F.3d 333, 343 (2d Cir. 2018) (quoting Met. Life Ins.
Co. v. Robertson-Ceco Corp., 84 F.3d 560, 567 (2d Cir. 1996)). When
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.” Licci, 732 F.3d at 170 (alteration
omitted) (quoting Bank Brussels Lambert v. Fiddler Gonzalez &
Rodriguez, 305 F.3d 120, 127 (2d Cir. 2002)).
In this case, the district court employed a conspiracy theory of
specific jurisdiction. So-called conspiracy jurisdiction “is based on the
time-honored notion that the acts of a conspirator in furtherance of a
conspiracy may be attributed to the other members of the
conspiracy.” Textor v. Bd. of Regents of N. Ill. Univ., 711 F.2d 1387, 1392
(7th Cir. 1983) (internal quotation marks and alteration omitted).
Under that theory, “one conspirator’s minimum contacts allow for
personal jurisdiction over a co-conspirator,” even when the
co-conspirator lacks such contacts itself. Schwab I, 883 F.3d at 86. 8 In
Schwab I, this court laid out three requirements for imputing the
8 “The essence of [the conspiracy theory of personal jurisdiction] is its
reliance on the conspiracy as an independent source of jurisdiction over a
nonresident defendant, irrespective of his own contacts with the forum. …
Once the court finds a conspiracy, it simply asserts its power over all
defendants shown to be coconspirators.” Stuart M. Riback, Note, The Long
Arm and Multiple Defendants: The Conspiracy Theory of In Personam
Jurisdiction, 84 Colum. L. Rev. 506, 507 (1984) (footnote omitted); see also
Alex Carver, Note, Rethinking Conspiracy Jurisdiction in Light of Stream of
Commerce and Effects-Based Jurisdictional Principles, 71 Vand. L. Rev. 1333,
1337 (2018) (“Conspiracy jurisdiction is an application of specific
jurisdiction: courts attribute the purposefully established, conspiracy-
related forum contacts of one conspirator to a second conspirator who lacks
such contacts.”).
38
minimum contacts of one co-conspirator to another: “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.” 883 F.3d at 87.
In Schwab II, this court held that a complaint alleged personal
jurisdiction under a conspiracy theory over the defendants’ objection
that the third Schwab I factor was not met. 22 F.4th at 122. In that case,
the plaintiffs alleged that the defendant banks had executives and
managers in the United States who would direct subordinates to
manipulate the LIBOR. Id. at 123. The directions took the forms of “a
standing directive to submit low LIBOR contributions” and “emails
between a senior [bank] executive in New York … asking the [bank’s
LIBOR submitter] to err on the low side when setting LIBOR.” Id.
(internal quotation marks and alteration omitted). We held that “these
communications would establish overt acts taken by co-conspirator
Banks in the United States in furtherance of the suppression
conspiracy, vesting the district court with personal jurisdiction over
each Defendant”—including those defendants who did not engage in
such overt acts. Id.
Our decision in Schwab II requires the conclusion that there are
minimum contacts to establish conspiracy jurisdiction in this case.
The plaintiffs have adequately alleged that a conspiracy existed to
manipulate the platinum and palladium benchmark prices. “At the
pleading stage, a complaint claiming conspiracy, to be plausible, must
plead enough factual matter (taken as true) to suggest that an
agreement was made.” Gelboim, 823 F.3d at 781 (internal quotation
marks omitted). We have said that allegations that “evince a common
39
motive to conspire” combined with “a high number of interfirm
communications” are adequate to plead a conspiracy. Id. at 781-82.
Here, the plaintiffs allege that the defendants were “net short” in their
platinum and palladium positions and that the defendants “could
and did cash in on the foreknowledge that the Fix price, and thus the
prices of platinum and palladium generally, was going to go down on
a given day, at a given time.” App’x 460, 357.
The plaintiffs allege not only a common motive but also
numerous interfirm communications. According to the complaint, via
the Fixing the defendants “met twice daily on … private phone
call[s]” that “involved the direct exchange of intended or future price
information among horizontal competitors.” Id. at 448. Interfirm
communications included “the sharing of client orders and imminent
orders” as well as “chat rooms, instant messages, phone calls,
proprietary trading venues and platforms, and e-mails to coordinate
among themselves … to ensure … that attempts to move the market
in one way or the other were not undone (unwittingly or not) by the
contrary efforts of other members or other large banks.” Id. at 448-49.
Because the plaintiffs allege that BASF Metals and ICBC
participated in a conspiracy, we have personal jurisdiction over those
parties at this stage if “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.” Schwab I, 883 F.3d at 87. That
is not a difficult requirement to meet: “[a]n overt act is any act
performed by any conspirator for the purpose of accomplishing the
objectives of the conspiracy.” United States v. Lange, 834 F.3d 58, 70 (2d
Cir. 2016) (quoting United States v. Tzolov, 642 F.3d 314, 320 (2d Cir.
2011)). The complaint alleges that precious metals traders—based in
40
the United States and employed by co-conspirators of BASF and
ICBC—“would update order information during the Fixing and
provide this updated order information to” BASF’s and ICBC’s
“participant[s] in the Fixing as the Fixing was conducted.” App’x 365,
368. According to the complaint, such communications were
necessary to “coordinate” members of the conspiracy so that the
conspiracy’s “attempts to move the market in one way or the other
were not undone” by individual orders. Id. at 449. The alleged sharing
of “client orders and imminent orders” also enabled manipulation of
the benchmark prices because it provided the defendants “access to
nonpublic, real-time information about changes in the price of
platinum and palladium” and “future price information among
horizontal competitors.” Id. at 448. Because these communications
occurred in the United States, the complaint in this case satisfies
Schwab I’s third prong and our requirements for minimum contacts
under conspiracy jurisdiction.
BASF Metals and ICBC argue that they “could not have
reasonably anticipated being haled into court in the United States as
a result of participating with other London-based parties in London-
based activity that concerned London- and Zurich-based materials.”
Cross-Appellants’ Supp. Br. 20 (internal quotation marks and
alteration omitted). Perhaps not. The allegations in the complaint
might not establish that BASF Metals or ICBC themselves had
minimum contacts with the forum state. But we have already held in
Schwab I that “a co-conspirator’s minimum contacts … in furtherance
of the conspiracy” fulfills the requirement that the “defendant must
have purposefully availed itself of the privilege of doing business in
the forum.” 883 F.3d at 85-87 (emphasis added) (internal quotation
marks omitted). Such purposeful availment is the sort of “conduct
41
and connection with the forum State” that should lead a defendant to
“reasonably anticipate being haled into court there.” World-Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).
BASF Metals and ICBC take issue with the theory of conspiracy
jurisdiction itself, criticizing it as “hing[ing] entirely on the
proposition that a court may legitimately impute the in-forum
contacts of a third party to a defendant who resides outside of the
forum.” BASF Metals’s Br. 41. Conspiracy jurisdiction, these parties
assert, is “extraordinarily broad” because “it … permit[s] the exercise
of personal jurisdiction over a defendant based on the actions of a
co-conspirator who is entirely unknown to that defendant.” Id. at 46
(internal quotation marks and alteration omitted). For these reasons,
BASF Metals and ICBC argue that “‘conspiracy jurisdiction’ violates
the Due Process Clause and Supreme Court precedent interpreting
it.” Id. at 40.
There may be grounds for those objections. Conspiracy
jurisdiction seems to have expanded beyond its more limited roots.
“[E]arly cases upheld jurisdiction over nonresident conspirators
based on the in-state acts of their coconspirators, but the courts
generally did so on the theory that the in-state coconspirators acted
as agents of the nonresident defendants.” Carver, supra note 8, at 1340.
In fact, Schwab II referenced agency principles in explaining
conspiracy jurisdiction. 22 F.4th at 122 (“Much like an agent who
operates on behalf of, and for the benefit of, its principal, a co-
conspirator who undertakes action in furtherance of the conspiracy
essentially operates on behalf of, and for the benefit of, each member
of the conspiracy.”). But the argument that our exercise of conspiracy
jurisdiction should be limited by agency principles is no longer
42
available. We have observed that “some control is necessary to
establish agency for jurisdictional purposes,” CutCo Indus., Inc. v.
Naughton, 806 F.2d 361, 366 (2d Cir. 1986) (construing New York’s
long-arm statute), but we have squarely rejected that limitation on
conspiracy jurisdiction, Schwab II, 22 F.4th at 125 (concluding that
“our caselaw does not require a relationship of control, direction, or
supervision” to establish conspiracy jurisdiction).
In doing so, we followed the suggestion that, because “for most
purposes the acts of one conspirator within the scope of the
conspiracy are attributed to the others,” there is no reason “personal
jurisdiction should be an exception.” Stauffacher v. Bennett, 969 F.2d
455, 459 (7th Cir. 1992) (Posner, J.). BASF Metals and ICBC argue that
the minimum contacts inquiry must be more “defendant-focused”
than the rules of conspiracy liability. BASF Metals’s Br. 41 (quoting
Walden v. Fiore, 571 U.S. 277, 284 (2014)). Other critics of conspiracy
jurisdiction have similarly argued that the “purposes of the law of
civil conspiracy and the law of in personam jurisdiction” are
“opposed.” Riback, supra note 8, at 530. On the one hand, “[a]
conspiracy claim serves merely to expand liability for the underlying
wrong to persons who are not directly involved in the wrongful
actions,” 15A C.J.S. Conspiracy § 18 (2022), and is “a mechanism to aid
the plaintiff,” Riback, supra note 8, at 530. The due process limitations
on in personam jurisdiction, on the other hand, are meant to “give[] a
degree of predictability to the legal system that allows potential
defendants to structure their primary conduct with some minimum
assurance as to where that conduct will and will not render them
liable to suit.” World-Wide Volkswagen, 444 U.S. at 297. In other words,
“[w]hile a solicitude for the plaintiff’s interests is central to the
determination of conspiratorial liability, it is not so in the
43
determination of jurisdiction, in which the defendant is the primary
concern.” Riback, supra note 8, at 530. Under this line of argument, the
rules of conspiratorial liability should not govern a court’s personal
jurisdiction over a conspirator. 9
While we acknowledge the debate over this question, 10 our
court has already taken a position—and we are bound to follow our
previous decision. Glob. Reinsurance Corp. of Am. v. Century Indem. Co.,
22 F.4th 83, 100-01 (2d Cir. 2021) (“[A] decision of a panel of this Court
is binding unless and until it is overruled by the Court en banc or by
the Supreme Court.”) (quoting United States v. Hightower, 950 F.3d 33,
36 (2d Cir. 2020)). Because this court held that minimum contacts were
9 See Ann Althouse, The Use of Conspiracy Theory to Establish In Personam
Jurisdiction: A Due Process Analysis, 52 Fordham L. Rev. 234, 241 (1983)
(criticizing courts for “fail[ing] to differentiate between the standards
governing liability and those governing jurisdiction”); Riback, supra note 8,
at 510 (“It is elementary that the fact of liability does not confer jurisdiction,
yet by endowing a conspiracy with an independent jurisdictional
significance, the conspiracy theory does just that.”) (footnote omitted).
10See, e.g., Smith v. Jefferson Cnty. Bd. of Educ., 378 F. App’x 582, 586 (7th Cir.
2010) (describing conspiracy jurisdiction as “a theory that is … marginal at
best”); Chirila v. Conforte, 47 F. App’x 838, 842 (9th Cir. 2002) (“There is a
great deal of doubt surrounding the legitimacy of this conspiracy theory of
personal jurisdiction.”); Schwartz v. Frankenhoff, 733 A.2d 74, 80 (Vt. 1999)
(observing that the U.S. Supreme Court’s “decisions strongly suggest” that
“conspiracy participation is not enough” to “meet due process
requirements for personal jurisdiction”); Nat’l Indus. Sand Ass’n v. Gibson,
897 S.W.2d 769, 773 (Tex. 1995) (declining “to recognize the assertion of
personal jurisdiction over a nonresident defendant based solely upon the
effects or consequences of an alleged conspiracy with a resident in the
forum state”).
44
present in Schwab II, it follows that such contacts are present for BASF
Metals and ICBC in this case.
2
“If a defendant has sufficient minimum contacts,” we “must
also determine whether the exercise of personal jurisdiction is
reasonable under the Due Process Clause.” MacDermid, Inc. v. Deiter,
702 F.3d 725, 730 (2d Cir. 2012). BASF Metals and ICBC argue that,
even if minimum contacts are present in this case, “any exercise of
specific jurisdiction … would be unreasonable.” BASF Metals’s Br. 55.
We disagree. The reasonableness inquiry depends on five factors:
(1) the burden that the exercise of jurisdiction will
impose on the defendant; (2) the interests of the forum
state in adjudicating the case; (3) the plaintiff’s interest in
obtaining convenient and effective relief; (4) the
interstate judicial system’s interest in obtaining the most
efficient resolution of the controversy; and (5) the shared
interest of the states in furthering substantive social
policies.
Met. Life, 84 F.3d at 568. “Where a plaintiff makes the threshold
showing of the minimum contacts required for the first test, a
defendant must present a compelling case that the presence of some
other considerations would render jurisdiction unreasonable.” Bank
Brussels Lambert, 305 F.3d at 129 (internal quotation marks omitted).
“The import of the ‘reasonableness’ inquiry varies inversely with the
strength of the ‘minimum contacts’ showing—a strong (or weak)
showing by the plaintiff on ‘minimum contacts’ reduces (or increases)
the weight given to ‘reasonableness.’” Id.BASF Metals and ICBC have not met the burden of showing
unreasonableness. According to BASF Metals and ICBC, the burden
45
of being haled into court in the United States is “severe.” BASF
Metals’s Br. 57 (quoting Asahi Metal Indus. Co. v. Super. Ct. of Cal., 480
U.S. 102, 114 (1987)). But we have previously held with respect to a
Puerto Rican defendant sued in New York that this factor provides
“only weak support” because “the conveniences of modern
communication and transportation ease what would have been a
serious burden only a few decades ago.” Bank Brussels Lambert, 305
F.3d at 129-30. Neither do BASF Metals and ICBC make the necessary
showing on the second or third factors given New York’s interest in
adjudicating a claim concerning manipulation on the NYMEX and the
fact that the plaintiffs reside in the United States.
BASF Metals and ICBC argue that the remaining factors—
which those parties characterize as “considerations of international
rapport,” BASF Metals’s Br. 58 (alteration omitted) (quoting Daimler
AG v. Bauman, 571 U.S. 117, 142 (2014))—weigh against exercising
personal jurisdiction in this case. The Supreme Court has explained
that, in the context of an “assertion of jurisdiction over an alien
defendant,” the fourth and fifth reasonableness factors “call[] for a
court to consider the procedural and substantive policies of other
nations whose interests are affected” by the exercise of personal
jurisdiction. Asahi, 480 U.S. at 115. According to BASF Metals and
ICBC, “[i]t is insulting to the sovereignty of foreign nations to subject
their residents to personal jurisdiction in the United States” based on
a conspiracy jurisdiction theory. BASF Metals’s Br. 59.
BASF Metals and ICBC overestimate the weight of
“international rapport” in this context. That language comes from the
Supreme Court’s decision in Daimler, which rejected the Ninth
Circuit’s attempt to “subject[] Daimler to the general jurisdiction of
46
courts in California.” 571 U.S. at 142. Given the scope of general
jurisdiction, it is unsurprising that “international rapport” would be
harmed by “some domestic courts’ expansive views of general
jurisdiction.” Id. at 142. The international rapport concerns of Daimler
do not apply equally in a case, such as this one, that involves specific
jurisdiction.
This case is not “the ‘exceptional situation’ where exercise of
jurisdiction is unreasonable even though minimum contacts are
present.” Bank Brussels Lambert, 305 F.3d at 130. We affirm the district
court’s assertion of personal jurisdiction over BASF Metals and ICBC.
B
We next turn to the district court’s dismissal of the LPPFC as a
defendant. The plaintiffs expressly decline to challenge the district
court’s holding in Platinum I that there is no conspiracy jurisdiction
over the LPPFC and instead argue that the district court should have
exercised personal jurisdiction under an alter ego theory of personal
jurisdiction. We disagree and affirm.
This court has observed that it is “well established that the
exercise of personal jurisdiction over an alter ego corporation does not
offend due process.” S. New Eng. Tel. Co. v. Glob. NAPs Inc., 624 F.3d
123, 138 (2d Cir. 2010). “The alter-ego theory provides for personal
jurisdiction if the parent company exerts so much control over the
subsidiary that the two do not exist as separate entities but are one
and the same for purposes of jurisdiction.” Indah v. SEC, 661 F.3d 914,
921 (6th Cir. 2011) (internal quotation marks omitted). The usual
application of an alter ego theory serves to extend personal
jurisdiction over the parent company. In this case, the plaintiffs seek
47
to do the reverse—to extend personal jurisdiction over the Fixing
Members to their subsidiary, the LPPFC.
“Because we treat the parent and subsidiary as ‘not really
separate entities’ if they satisfy the alter ego analysis, there is no
greater justification for bringing the parent into the subsidiary’s
forum than for doing the reverse.” Ranza v. Nike, Inc., 793 F.3d 1059,
1072 (9th Cir. 2015) (internal citation omitted) (quoting Doe v. Unocal
Corp., 248 F.3d 915, 926 (9th Cir. 2001)). Accordingly, “[t]he crux of the
alter-ego theory of personal jurisdiction” is that “courts are to look for
two entities acting as one,” Anwar v. Dow Chem. Co., 876 F.3d 841, 848
(6th Cir. 2017), an inquiry that we have compared to piercing the
corporate veil, S. New Eng. Tel. Co., 624 F.3d at 147. The parties
disagree on whether English or federal common law governs the
question of piercing the LPPFC’s corporate veil. 11 We need not
11In diversity cases, we look to the choice-of-law rules of the forum state to
determine the veil-piercing law to apply. See Am. Fuel Corp. v. Utah Energy
Dev. Co., 122 F.3d 130, 134 (2d Cir. 1997). Because the LPPFC is “organized
and existing under the laws of the United Kingdom,” App’x 370-71, and
New York’s rule is that “the law of the state of incorporation determines
when the corporate form will be disregarded,” Fletcher v. Atex, Inc., 68 F.3d
1451, 1456 (2d Cir. 1995) (quoting Fletcher v. Atex, Inc., 861 F. Supp. 242, 244
(S.D.N.Y. 1994)), under that rule English law would apply. This case,
however, arises under federal law. Other courts have held that federal
common law governs alter-ego theories “when a federal interest is
implicated by the decision of whether to pierce the corporate veil.” Anwar,
876 F.3d at 848-49 (applying federal common law to an alter ego personal
jurisdiction claim); see also United States ex rel. Small Bus. Admin. v. Pena, 731
F.2d 8, 12 (D.C. Cir. 1984) (noting that “courts ha[ve] both a jurisdictional
and substantive basis for resorting to a federal common law of veil-
piercing” when “some federal interest [i]s implicated by the decision
whether to pierce the corporate veil”).
48
resolve that dispute because under neither approach can the plaintiffs
succeed.
The plaintiffs have not pleaded facts sufficient to pierce the
corporate veil under English law. “English law … will pierce the
corporate veil and recognize one entity as the alter ego of another only
where special circumstances exist indicating that the relationship of
one corporation to another is a mere facade concealing the true facts.”
Great Lakes Overseas, Inc. v. Wah Kwong Shipping Grp., 990 F.2d 990, 997
(7th Cir. 1993) (internal quotation marks omitted). In Great Lakes, the
Seventh Circuit observed that English courts will not “pierc[e] the
corporate veil to hold a parent company responsible for the debts of
its wholly owned subsidiary even where the subsidiary was created
to conduct the business at issue and was funded entirely by loans
advanced by the parent.” Id. (describing Atlas Maritime Co. SA v.
Avalon Maritime Ltd. [1991] 4 All E.R. 769 (AC)). In this case, the
plaintiffs argue that the district court should have pierced the
corporate veil because the Fixing Members “selected LPPFC’s board
members” and “conducted LPPFC’s day-to-day operations” and
because the LPPFC “was financially dependent on” the Fixing
Members and “had no function other than to implement the Fixing.”
Appellants’ Br. 55-56. But the same could be said of any single-
shareholder corporation, and “[t]he involvement of a sole or majority
shareholder in a corporation is not sufficient alone to establish a basis
to disregard the corporate entity and pierce the corporate veil.” 18
C.J.S. Corporations § 21 (2022). 12 The plaintiffs have not identified any
12See also 1 James D. Cox & Thomas L. Hazen, Treatise on the Law of
Corporations § 7:10 (3d ed. 2021) (noting that, when courts in “veil-piercing
cases” consider “whether the controlling stockholder has so dominated the
49
“special circumstances” to justify piercing the veil here. Great Lakes,
990 F.2d at 997.
Neither can the plaintiffs succeed on an alter ego theory under
federal common law. The plaintiffs in this case argue that, under
federal common law, they “need only show that Defendants
dominated LPPFC.” Appellants’ Br. 55. The plaintiffs cite Marine
Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981), for the
proposition that “veil-piercing for purposes of pleading personal
jurisdiction is relaxed.” Appellants’ Reply Br. 58. In Marine Midland
Bank, this court considered the “fiduciary shield doctrine,” which
provides that “if an individual has contact with a particular state only
by virtue of his acts as a fiduciary of the corporation, he may be
shielded from the exercise, by that state, of jurisdiction over him
personally on the basis of that conduct.” 664 F.2d at 902. We created
an exception to that rule, holding that “[i]f the corporation is merely
a shell, it is equitable, even if the shell may not have been used to
perpetrate a fraud, to subject its owner personally to the court’s
jurisdiction to defend the acts he has done on behalf of his shell.” Id.
at 903.
Even if we accept that as the federal common law test for alter
ego personal jurisdiction, the plaintiffs have not adequately alleged
that the LPPFC is such a “shell.” We have “disregarded corporate
formalities when a corporation’s owner exercises ‘total and exclusive
domination of the corporation.’” S. New Eng. Tel. Co., 624 F.3d at 139(quoting Lowen v. Tower Asset Mgmt., Inc., 829 F.2d 1209, 1221 (2d Cir.
affairs of the corporation that the corporation has no existence of its own,”
there is usually “the additional requirement that fraud, illegality or gross
unfairness will result if the corporate existence is not disregarded”).
50
1987)). For example, in Midland Bank, the plaintiffs “made a prima
facie showing that Miller & Associates was a shell corporation” when
it “presented deposition testimony and affidavits concerning the
ownership, capitalization, and use by Miller of Miller & Associates”
as well as evidence that “Miller & Associates was no more than a
telephone number and stationery.” 664 F.2d at 904. In contrast, the
allegations that the plaintiffs highlight on appeal—that the LPPFC
“was financially dependent on Defendants” and “had no function
other than to implement the Fixing” and that the defendants placed
its employees on the LPPFC’s board, Appellants’ Br. 55-56—do not
provide a reason to treat the LPPFC differently from any corporation
operated by its owner. See Harris Rutsky & Co. Ins. Servs., Inc. v. Bell &
Clements Ltd., 328 F.3d 1122, 1135 (9th Cir. 2003) (holding that “100%
control through stock ownership” and “shar[ing] the same offices …
and some of the same staff” did not make one company the alter ego
of the other). 13
As noted above, the plaintiffs did not merely fail to argue that
we have conspiracy jurisdiction over the LPPFC but expressly
declined to make that argument. Cross-Appellees’ Supp. Reply Br. 10
n.7 (“Plaintiffs do not challenge the district court’s conspiracy
jurisdiction ruling as to LPPFC.”). “[A]rguments not made in an
13 In the third amended complaint, the plaintiffs allege that the LPPFC
“never maintained any office space” and that “its correspondence address
[is] at a corporate law firm.” App’x 371. At oral argument, however, the
plaintiffs conceded that because the LPPFC is not named as a defendant in
the third amended complaint, we “evaluate the sufficiency of the claims as
to” the LPPFC “based on the allegations in the second amended complaint.”
Oral Argument Audio Recording at 20:30. Because the allegations
concerning the LPPFC’s office space are absent from the second amended
complaint, we do not consider those allegations.
51
appellant’s opening brief are waived even if the appellant pursued
those arguments in the district court or raised them in a reply brief.”
JP Morgan Chase Bank v. Altos Hornos de Mex., S.A. de C.V., 412 F.3d
418, 428 (2d Cir. 2005). Because the plaintiffs have not adequately
alleged that the LPPFC is the Fixing Members’ alter ego for
jurisdictional purposes, we affirm the district court’s dismissal of
claims against the LPPFC.
IV
We consider last the plaintiffs’ challenge to the district court’s
dismissal of claims against BASF Corporation in Platinum I. The
district court dismissed the claims against BASF Corporation under
Rule 12(b)(6), holding that the plaintiffs’ “allegations against BASF
Corp. do not meet even the most liberal pleading standard.”
Platinum I, 2017 WL 1169626, at *52. According to the plaintiffs,
however, “BASF Corp. had every incentive and opportunity to work
closely with BASF Metals and the Fixing’s participants generally to
further the conspiracy” and the second amended complaint’s
allegations “plausibly demonstrate [BASF Corporation’s]
participation in the price fixing conspiracy.” Appellants’ Br. 59. We
disagree and affirm the district court’s judgment on this point.
Section 1 of the Sherman Act “punishes the conspiracies at
which it is aimed on the common law footing,—that is to say, it does
not make the doing of any act other than the act of conspiring a
condition of liability.” Nash v. United States, 229 U.S. 373, 378 (1913).
In other words, “the agreement itself [is] the offense” and no overt
acts are necessary to violate section 1. United States v. Sassi, 966 F.2d
283, 284 (7th Cir. 1992). Thus, “[a] plaintiff’s job at the pleading stage
… is to allege enough facts to support the inference that a conspiracy
52
actually existed,” and that may be accomplished through either direct
or circumstantial evidence. Mayor & Council of Balt. v. Citigroup, Inc.,
709 F.3d 129, 136 (2d Cir. 2013). Direct evidence is rare; it “would
consist, for example, of a recorded phone call in which two
competitors agreed to fix prices at a certain level.” Id. There is no
assertion of such evidence in this case.
“[A] complaint may, alternatively, present circumstantial facts
supporting the inference that a conspiracy existed.” Id. “[E]ven in the
absence of direct ‘smoking gun’ evidence, a horizontal price-fixing
agreement may be inferred on the basis of conscious parallelism,
when such interdependent conduct is accompanied by circumstantial
evidence and plus factors.” Todd v. Exxon Corp., 275 F.3d 191, 198 (2d
Cir. 2001). Such plus factors include “a common motive to conspire,
evidence that shows that the parallel acts were against the apparent
individual economic self-interest of the alleged conspirators, and
evidence of a high level of interfirm communications.” Mayor &
Council of Balt., 706 F.3d at 136 (quoting Twombly v. Bell Atl. Corp., 425
F.3d 99, 114 (2d Cir. 2005), rev’d on other grounds, 550 U.S. 544 (2007)).
The plaintiffs have failed to allege a conspiracy that includes
BASF Corporation. The plaintiffs’ argument relies on those parts of
the second amended complaint which assert that BASF Corporation
had a “common interest” in suppressing platinum and palladium
prices. Appellants’ Br. 59. That may demonstrate a “plus factor,” but
it does not address the primary defect of the claims against BASF
Corporation: the second amended complaint “says nothing about
BASF Corp.’s involvement—direct or indirect—in the alleged price
manipulation, BASF Corp.’s role in executing the scheme, or BASF
Corp.’s motive in artificially suppressing the Fix Price.” Platinum I,
53
2017 WL 1169626, at *52. Plus factors such as common motive are
“circumstances which, when combined with parallel behavior, might
permit a jury to infer the existence of an agreement.” Mayor & Council
of Balt., 706 F.3d at 136 n.7. The plaintiffs in this case, however, have
not alleged any behavior on the part of BASF Corporation at all.
We affirm the district court’s dismissal of the claims against
BASF Corporation.
CONCLUSION
We REVERSE the district court’s dismissal of the Exchange
Plaintiffs’ antitrust claims and VACATE the district court’s dismissal
of the plaintiffs’ CEA claims. We AFFIRM the remainder of the
district court’s judgment, and REMAND to the district court for
further proceedings consistent with this opinion.
54