City of Providence, Rhode Island v. Bats Global Markets, Inc. et al
| City of Providence, Rhode Island |
| Bats Global Markets, Inc., Box Options Exchange L.L.C., Chicago Board Options Exchange, Inc., Chicago Stock Exchange, Inc., C2 Options Exchange, Inc., Direct Edge ECN, L.L.C., International Securities Exchange Holdings, Inc., The Nasdaq Stock Market L.L.C., Nasdaq OMX BX, Inc., National Stock Exchange, Inc., New York Stock Exchange, L.L.C., NYSE Arca, Inc., Onechicago, L.L.C., Bank of America Corporation, Barclays Plc, Citigroup Inc., Credit Suisse Group AG, Deutsche Bank AG, The Goldman Sachs Group, Inc., JPMorgan Chase & Co., Morgan Stanley & Co L.L.C., UBS AG, The Charles Schwab Corporation, E*Trade Financial Corporation, FMR, L.L.C., Fidelity Brokerage Services, L.L.C., Scottrade Financial Services, Inc., TD Ameritrade Holding Corporation, DRW Holdings, L.L.C., GTS Securities, L.L.C., Hudson River Trading L.L.C., Jump Trading, L.L.C., KCG Holdings, Inc., Quantlab Financial L.L.C., Tower Research Capital L.L.C., Tradebot Systems, Inc., Tradeworx Inc., Virtu Financial Inc., Chopper Trading, L.L.C., NASDAQ OMX PHLX LLC and Citadel LLC |
| 1:2014cv02811 |
| April 18, 2014 |
| US District Court for the Southern District of New York |
| Foley Square Office |
| XX Out of State |
| Jesse M. Furman |
| Securities/Commodities |
| 15 U.S.C. ยง 78 m(a) Securities Exchange Act |
| Plaintiff |
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Filing
881
MEMORANDUM OPINION AND ORDER: In short, the Exchanges fail to persuade the Court that vacatur of its prior decisions is appropriate, let alone required. Accordingly, the Exchanges' request is DENIED without prejudice to renewal in the event that the Exchanges can support it with authority more directly on point or can otherwise persuade the Court that the request is appropriate. SO ORDERED. (Signed by Judge Jesse M. Furman on 7/29/2022) (ks)
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Filing
870
ORDER terminating 861 Letter Motion to Seal. CMIA shall coordinate with Defendants to file versions of the relevant document(s) with proposed redactions no later than April 28, 2022. Defendants and CMIA must consult and comply with Section 7 o f the Court's Individual Rules, which requires, among other things, that any party seeking leave to maintain a document in redacted form must simultaneously publicly file on ECF a copy of the document with proposed redactions and also file under seal on ECF (with the appropriate level of restriction) an unredacted copy of the document with the proposed redactions highlighted. SO ORDERED. (Signed by Judge Jesse M. Furman on 4/25/2022) (tg)
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Filing
856
ORDER: Various third parties have filed letter-motions requesting that certain filings be maintained under seal, in whole or in part, pursuant to the Court's March 28, 2022 Opinion and Order, ECF No. 832, at 46; see ECF Nos. 837, 839-44, 848 , 853. It is hereby ORDERED that all third parties seeking such relief shall confer and no later than April 18, 2022, file a joint letter with a chart listing the relevant filings, the corresponding ECF number associated with the filing currently sealed or redacted (not the publicly filed cover sheet noting the document will be filed separately under seal), and the relevant third party or parties' position regarding whether the filing should be maintained under seal or in redacted for m. See, e.g., ECF No. 847, at 4-10. All such third parties shall also review the Court's Order issued earlier today regarding the Defendants' sealing requests to ensure there is no duplication. Furthermore, all such third parties must c onsult and (if they have not already done so) comply with Section 7 of the Court's Individual Rules, which requires, among other things, that any party seeking leave to maintain a document in redacted form must simultaneously publicly file on ECF a copy of the document with proposed redactions and also file under seal on ECF (with the appropriate level of restriction) an unredacted copy of the document with the proposed redactions highlighted. In light of the foregoing, the parties� 39; deadline to file a joint letter with the list of the ECF numbers of the filings to be unsealed, see ECF No. 832, at 46, is hereby EXTENDED to one week after the Court's ruling on the third-party requests. SO ORDERED. (Signed by Judge Jesse M. Furman on 4/12/2022) (vfr)
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Filing
810
ORDER, Oral argument is scheduled in this matter for March 11, 2022, at 10:00 a.m. See ECF No. 804. The proceeding will be held in person in Courtroom 318 (not the undersigned's usual courtroom) of the Thurgood Marshall Courthouse, 40 Centre Street, New York, New York. Per the Court's February 18, 2022 Order, see ECF No. 806, counsel who will not have speaking roles and members of the public may listen to the argument remotely by calling the Court's dedicated conference call line at (888) 363-4749 and using access code 542-1540 followed by the pound (#) key. SO ORDERED. ( Oral Argument set for 3/11/2022 at 10:00 AM in Courtroom 318, 40 Centre Street, New York, NY 10007 before Judge Jesse M. Furman.) (Signed by Judge Jesse M. Furman on 3/3/22) (yv)
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Filing
809
MEMORANDUM OPINION AND ORDER re: 791 LETTER MOTION to Seal Reply in Support of Lead Plaintiffs' Motion to Unseal addressed to Judge Jesse M. Furman from Steven M. Jodlowski dated December 22, 2021 filed by Boston Retirement Sy stem, United Association National Pension Fund, Employees' Retirement System of the Government of the Virgin Islands, City of Providence, Rhode Island. The Clerk of Court is directed to terminate ECF No. 791. No later than March 7, 202 2, Defendants shall, in accordance with Paragraph 7 the Court's Individual Rules and Practices in Civil Cases, publicly file copies of the following filings with proposed redactions consistent with this Opinion and Order: ECF No. 660-75 (201 3 Nasdaq Revenue Chart and Price Change Analysis); ECF Nos. 660-155, 671-62, 671-63, 671-64 (2011-2013 Email Chain with Nasdaq Customer); ECF Nos. 671-68, 671-69 (2010 Nasdaq Draft White Paper); The filings for which Defendants request per mission to redact identifying information of nonparty market participants, as identified in Defendants' chart of disputed filings, see Defs.' List; The deposition transcript filings for which Defendants request permission to redact all pages not cited in Plaintiffs' papers, as identified in Defendants' chart of disputed filings, see Defs.' List; The two filings for which Defendants request permission to redact information the parties have agreed are subjec t to legal privilege, see Defs.' Opp'n 13; Yetter Decl. 16-17; ECF No. 660-210 (filing with personal email address of a relative of a former BATS employee). SO ORDERED. (Signed by Judge Jesse M. Furman on 2/23/2022) (vfr)
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Filing
804
ORDER: Counsel for all parties shall appear on March 11, 2022, at 10:00 a.m., for oral argument on Defendants' motion for summary judgment for lack of Article III standing, see ECF No. 607, and Defendants' motion to exclude the opinio ns and testimony of David Lauer, see ECF No. 651. No later than February 22, 2022, the parties shall confer and submit a joint letter indicating their views on whether argument should be held in person, by telephone, or by videoconference. ( Oral Argument set for 3/11/2022 at 10:00 AM before Judge Jesse M. Furman.) (Signed by Judge Jesse M. Furman on 2/14/2022) (ate)
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Filing
799
ORDER granting 776 Motion to Unseal. 1995). Here, because Defendants do not oppose unsealing the vast majority of the documents identified by Plaintiffs, Plaintiffs' motion is GRANTED as to those documents. The Court reserves judgment on Plaintiffs' motion as to the other documents at issue. Accordingly, no later than January 20, 2022, Defendants shall file a letter with a list of the documents (with corresponding ECF numbers) from Plaintiffs' list that can be unsealed in their entirety. (The Court will then direct the Clerk to modify the viewing restrictions for those ECF entries so that they are viewable by the public.) On that same date, Defendants shall also file a separate letter with a chart identifying th e filings that remain in dispute, the ECF numbers of those filings, and Defendants' respective positions on them (i.e., whether Defendants request that the document remain under seal or be redacted). SO ORDERED. (Signed by Judge Jesse M. Furman on 1/18/2022) (tg)
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Filing
797
ORDER: Because McKenna appears to be proceeding pro se, the Court will construe her letter to be a motion to intervene under Federal Rule of Civil Procedure 24(b) for the purposes of challenging the Court's temporary sealing orders. See, e.g ., Pasiak v. Onondaga Cmty. Coll., No. 16-CV-1376 (TJM), 2018 WL 6591572, at *3 (N.D.N.Y. Dec. 14, 2018) (construing a pro se journalist's letter-motion as a motion to intervene); cf. Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000) (" ;[C]ourts must construe pro se pleadings broadly, and interpret them to raise the strongest arguments that they suggest.). Any opposition to McKenna's motion to intervene and to unseal shall be filed no later than January 18, 2022. Additio nally, no later than January 12, 2022, Plaintiffs shall file an amended list of the filings that they seek to have made public in connection with their motion to unseal, see ECF No. 776, which shall include the ECF numbers of the relevant filings . Specifically, Plaintiffs shall add a column to the table in Appendix A attached as Exhibit 1 to the Declaration of Steven M. Jodlowski, ECF No. 779-1, listing the ECF number for each filing. The Clerk of Court is directed to mail a copy of th is Order to Francine McKenna at the return address provided in her letter. See McKenna Letter 10. So Ordered. (Responses due by 1/18/2022) (Signed by Judge Jesse M. Furman on 1/10/2022) (js) Transmission to Docket Assistant Clerk for processing.
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Filing
795
ORDER temporarily granting 791 Letter Motion to Seal. The motion to seal is granted temporarily. The Court will assess whether to keep the materials at issue sealed or redacted when deciding the underlying motion. SO ORDERED.. (Signed by Judge Jesse M. Furman on 12/28/2021) (kv)
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Filing
782
ORDER temporarily granting 775 Letter Motion to Seal. The motion to seal is granted temporarily. The Court will assess whether to keep the materials at issue sealed or redacted when deciding the underlying motion. The Clerk of Court is directed to terminate ECF No. 775. SO ORDERED. (Signed by Judge Jesse M. Furman on 11/22/21) (yv)
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Filing
774
ORDER granting 768 Letter Motion to Seal. The motion to seal is granted temporarily. The Court will assess whether to keep the materials at issue sealed or redacted when deciding the underlying motion. SO ORDERED. (Signed by Judge Jesse M. Furman on 11/12/2021) (tg)
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Filing
763
ORDER: Accordingly, the Court orders as follows: Defendants are granted leave to depose Professor Finnerty. The deposition shall take place before October 29, 2021, and, absent agreement among the parties or permission of the Court, shall not exc eed three hours. No later November 5, 2021, or seven days after the deposition of Professor Finnerty, whichever is earlier, Defendants shall file their replies in support of their motions to exclude the opinions and testimony of David Lauer and Prof essor Finnerty and any motion to strike. The replies and any motion to strike shall take the form of a single, consolidated brief, not to exceed twenty pages if Defendants do not move to strike and not to exceed forty pages if Defendants do move to s trike. If Defendants move to strike, Plaintiffs shall file any opposition, limited to the motion to strike (as opposed to responding to arguments made in reply) and not to exceed twenty pages, within two weeks of the motion. Defendants shall file any reply in support of a motion to strike, not to exceed ten pages, within two weeks of Plaintiffs' opposition. Defendants are granted leave to file a sur-reply with respect to Plaintiffs' motion for class certification, no later than November 5, 2021, and not to exceed ten pages. The Court will consider Defendants' sur-reply only to the extent that it responds to any arguments raised and/or materials submitted for the first time in connection with Plaintiffs' Reply Brief in Support of Class Certification that the Court does not strike. (Deposition due by 10/29/2021., Replies due by 11/5/2021., Surreplies due by 11/5/2021.) (Signed by Judge Jesse M. Furman on 10/18/2021) (rro)
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Filing
760
ORDER granting 755 Letter Motion to Seal. Once again, the motion is granted temporarily and the Court will assess whether to keep the materials sealed when deciding the underlying motion. The Clerk of Court is directed to terminate ECF No. 755. SO ORDERED.. (Signed by Judge Jesse M. Furman on 10/12/2021) (ks)
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Filing
744
ORDER temporarily granting 723 Letter Motion to Seal. The motion to seal is GRANTED temporarily. The Court will assess whether to keep the materials at issue sealed or redacted when deciding the underlying motion. The Clerk of Court is directed to terminate ECF No. 723. SO ORDERED.. (Signed by Judge Jesse M. Furman on 9/20/2021) (kv)
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Filing
711
ORDER granting 687 Letter Motion to Seal.The motion to seal is GRANTED temporarily. The Court will assess whether to keep the materials at issue sealed or redacted when deciding the underlying motion. The Clerk of Court is directed to terminate ECF No. 687. (Signed by Judge Jesse M. Furman on 8/9/2021) (ate)
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Filing
667
ORDER: The Court received the attached letter by email from a non-party who requests that certain information filed under seal in connection with Plaintiffs motion for class certification, see ECF No. 644-1, remain under seal. The Court will consi der the letter in deciding whether and to what extent the information should remain under seal or redacted, which, as previously noted, the Court will assess when it decides the underlying motion. See ECF No. 637. Given the nature of the request, the Court has redacted any identifying information from the publicly filed letter; the Court will direct the Clerk of Court to file the unredacted letter under seal by separate Order. SO ORDERED. (Signed by Judge Jesse M. Furman on 7/28/2021) (rro)
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Filing
666
ORDER temporarily granting 639 Letter Motion to Seal. Application GRANTED temporarily. The Court will assess whether to keep the materials at issue sealed or redacted when deciding the underlying motion. The Clerk of Court is directed to terminate ECF No. 639. SO ORDERED. (Signed by Judge Jesse M. Furman on 7/27/21) (yv)
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Filing
636
ORDER: GRANTING Temporarily 634 Letter Motion to Seal. Application GRANTED temporarily. The Court will assess whether to keep the materials at issue sealed or redacted when deciding the underlying motion. The Clerk of Court is directed to terminate ECF No. 634. SO ORDERED. (Signed by Judge Jesse M. Furman on 7/26/2021) (ama)
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Filing
621
ORDER. With respect to Defendants' motions for summary judgment, ECF Nos. 599, 603, and 607, the parties shall confer and, no later than June 4, 2021, file a joint letter proposing a structure for consolidation of the opposition and reply br iefs to the greatest extent possible. Additionally, with respect to Plaintiffs' motion for class certification, ECF No. 610, and Defendants' motions for summary judgment, ECF Nos. 599, 603, and 607, the parties shall adhere to the followi ng procedure for the submission of electronic courtesy copies (which are to be filed in addition to, rather than in place of, paper courtesy copies). No later than two business days after the final filing with respect to each motion, the moving pa rty shall submit electronic courtesy copies of all motion papers in electronic folders titled with the docket number of the relevant motion in brackets followed by a description of the motion (e.g., " 610 Plaintiffs' Motion for Class C ertification"). The folder shall contain as further set forth in this Order. The moving party should submit the electronic courtesy copies to the Court by e-mail to Furman_NYSDChambers@nysd.uscourts.gov or, if that is not feasible due to file-size restrictions, on one or more CD-ROMs. SO ORDERED. (Signed by Judge Jesse M. Furman on 6/1/21) (yv)
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Filing
598
ORDER temporarily granting 597 Letter Motion to Seal. The motion to seal is GRANTED temporarily. The Court will assess whether to keep the materials at issue redacted when deciding the underlying motion. Lead Plaintiffs should strive to ensure th at all redactions are narrowly tailored to whatever considerations justify sealing notwithstanding the presumption in favor of public access. See generally Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119-20(2d Cir. 2006). The Clerk of Court is directed to terminate ECF No. 597. So Ordered. (Signed by Judge Jesse M. Furman on 5/28/21) (yv)
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Filing
572
ORDER RE: MARCH 16, 2021 HEARING: Upon review of the parties' submissions as described below and after hearing oral argument on March 16, 2021, and for the reasons stated on the record, the Court orders, as to the below-described matters, as f ollows: The parties have advised the Court that they began meeting and conferring about the issues raised by NYSE's letter-motion, have resolvedsome of those issues, and are continuing to meet and confer about the remaining issues; the parties s hall complete those discussions and advise the Court promptly thereafter in the event any suchissues are unresolved. The parties shall also meet and confer regarding the scheduling of this deposition no later than March 19, 2021. For avoidance of do ubt, the Court will not entertain requests for production of any transcripts of SEC testimony beyond the four referenced in this paragraph. To the extent this production prompts further discovery requests, the parties shall meet and confer by March 19, 2021. The remedy for failure to comply with discovery obligations by the extended deadlines will be sanctions, not any further extensions of time. The Clerk of Court is directed to terminate ECF Nos. 540, 545, 546, 548, 549, 551, 552, 553. IT IS SO ORDERED. (Deposition due by 8/26/2021., Fact Discovery due by 4/26/2021., Motions due by 5/28/2021, Responses due by 7/26/2021, Replies due by 9/17/2021.) (Signed by Judge Jesse M. Furman on 3/22/2021) (jca)
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Filing
570
ORDER granting 544 Letter Motion to Seal; granting 568 Letter Motion to Seal. Application GRANTED. Accordingly, the Clerk of Court is directed to unseal (that is, convert to public view, with no restrictions) ECF Nos. 545, 545-1, 545-3, 545-5 and to tenninate ECF Nos. 544,568. SO ORDERED. (Signed by Judge Jesse M. Furman on 3/15/21) (yv)
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Filing
532
ORDER, IT IS HEREBY ORDERED that the conference in this matter, previously scheduled for March 2, 2021, at 2:30 p.m., is ADJOURNED to March 16, 2021, at 12:00 p.m. In light of the COVID-19 situation, the Court will hold the conference remotely by telephone. At least twenty-four hours before the conference, counsel shall send a joint email to the Court with the names and telephone numbers of those who will have speaking roles at the conference, and the Court will provide call-in information to those counsel. All others counsel who will not have speaking roles and members of the public may listen to the conference by calling the Court's dedicated conference call line at (888) 363-4749 and using access code 542-1540 followed by the pound (#) key. The parties are reminded to follow the procedures for teleconferences described in the Court's Emergency Individual Rules and Practices in Light of COVID-19, which are available at https://nysd.uscourts.gov/hon-jesse-mfurman . No later than Thursday, March 11, 2021, the parties shall submit a joint letter with respect to any material developments in the case since Plaintiffs' letter of earlier today. SO ORDERED. ( Telephone Conference set for 3/16/2021 at 12:00 PM before Judge Jesse M. Furman.) (Signed by Judge Jesse M. Furman on 2/26/21) (yv)
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Filing
528
ORDER denying without prejudice 518 Letter Motion for Discovery; denying as moot 525 Letter Motion for Leave to File Document. Upon review of the parties' submissions, Plaintiff's letter motion is DENIED without prejudice. That den ial, however, is without prejudice to a new application (made only after conferring with the NYSE Defendants in accordance with the Court's Individual Rules and Practices) identifying ten documents among the 244 originally challenged and showi ng cause why these sample documents are not privileged and/or should be reviewed by the Court in camera. Plaintiff's letter motion for leave to file a reply in support of its letter motion regarding the privilege invocation is DENIED as moot and/or unripe. See ECF No. 525. The Clerk of Court is directed to terminate ECF Nos. 518 and 525. (As further set forth in this Order.) (Signed by Judge Jesse M. Furman on 2/24/2021) (cf)
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Filing
521
ORDER: There is a status conference currently scheduled in this matter for March 2, 2021. No later than Thursday, February 25, 2021, the parties shall submit a joint letter informing the Court of the status of this case and whether they believe t here is a need for the conference. If a conference is held, it would be held by telephone in light of the circumstances surrounding COVID-19. Unless and until the Court orders otherwise, all existing dates and deadlines remain in effect. See ECF No. 455. After reviewing the parties' joint status letter, the Court will issue an order indicating whether the conference is canceled and addressing any other relevant deadlines and information. If counsel believe that a conference would be appropriate, they should indicate in their joint status letter dates and times during the week of the currently scheduled conference that they would be available for a telephone conference in case the Court needs to adjust the schedule. In that ev ent, counsel should also review and comply with the Court's Emergency Individual Rules and Practices in Light of COVID-19, available at https://nysd.uscourts.gov/hon-jesse-m-furman. SO ORDERED. (Signed by Judge Jesse M. Furman on 2/22/2021) (ks)
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Filing
517
MEMO ENDORSED ORDER withdrawing 514 Letter Motion to Compel; granting 516 Motion to Withdraw. ENDORSEMENT: Application GRANTED. The Clerk of Court is directed to terminate ECF Nos. 514, 516. SO ORDERED. (Signed by Judge Jesse M. Furman on 2/12/21) (yv)
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Filing
493
ORDER. There is a status conference currently scheduled in this matter for December 22, 2020. No later than Thursday, December 17, 2020, the parties shall submit a joint letter informing the Court of the status of this case and whether they believ e there is a need for the conference. If a conference is held, it would be held by telephone in light of the circumstances surrounding COVID-19. Unless and until the Court orders otherwise, all existing dates and deadlines remain in effect. See EC F No. 455. After reviewing the parties' joint status letter, the Court will issue an order indicating whether the conference is canceled and addressing any other relevant deadlines and information. If counsel believe that a conference would be appropriate, they should indicate in their joint status letter dates and times during the week of the currently scheduled conference that they would be available for a telephone conference in case the Court needs to adjust the schedule. In that e vent, counsel should also review and comply with the Court's Emergency Individual Rules and Practices in Light of COVID-19, available at https://nysd.uscourts.gov/hon-jesse-m-furman.SO ORDERED. (Signed by Judge Jesse M. Furman on 12/14/20) (yv)
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Filing
452
ORDER. There is a status conference currently scheduled in this matter for September 22, 2020. No later than Thursday, September 17, 2020, the parties shall submit a joint letter informing the Court of the status of this case and whether they beli eve there is a need for the conference. If a conference is held, it would be held by telephone in light of the circumstances surrounding COVID-19. Unless and until the Court orders otherwise, all existing dates and deadlines including, as appropr iate, the November 12, 2020 deadline to complete discovery for class certification and preclusion and the deadlines for the motions for class certification and summary judgment and/or a proposed joint pretrial order remain in effect. See ECF Nos. 329, 408, 450. After reviewing the parties' joint status letter, the Court will issue an order indicating whether the conference is cancelled and addressing any other relevant deadlines and information. If counsel believe that a conference wo uld be appropriate, they should indicate in their joint status letter dates and times during the week of the currently scheduled conference that they would be available for a telephone conference in case the Court needs to adjust the schedule. In that event, counsel should also review and comply with the Court's Emergency Individual Rules and Practices in Light of COVID-19, available at https://nysd.uscourts.gov/hon-jesse-m-furman. SO ORDERED. (Signed by Judge Jesse M. Furman on 9/14/20) (yv)
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Filing
422
MEMORANDUM OPINION AND ORDER re: 413 LETTER MOTION for Discovery Conference Pursuant to Individual Rule 2(C) addressed to Judge Jesse M. Furman from Douglas W. Henkin and Steven M. Shepard dated April 27, 2020. filed by New York St ock Exchange, L.L.C., Direct Edge ECN, L.L.C., Chicago Stock Exchange, Inc., Nasdaq OMX BX, Inc., Bats Global Markets, Inc., The Nasdaq Stock Market L.L.C., BATS Global Markets, Inc., NYSE Arca, Inc., 415 LETTER MOTION for Discove ry Conference on ESI Custodians addressed to Judge Jesse M. Furman from Joshua C. Littlejohn of Motley Rice LLC dated April 29, 2020. filed by Boston Retirement System, Forsta AP-fonden, State-Boston Retirement System, Employees' Retirement System of the Government of the Virgin Islands, Plumbers and Pipefitters National Pension Fund, City of Providence, Rhode Island. For the reasons set forth in Defendants' opposition letter, see ECF No. 418, and articulated by de fense counsel during the teleconference, Plaintiffs' motion to compel Defendants BATS Global Markets, Inc. and Direct Edge ECN, LLC to collect relevant documents from Plaintiffs' proposed list of additional custodians is DENIED. Plaintiff s have not made the requisite showing that Defendants' list of custodians, made pursuant to the parties' ESI Protocol, see ECF No. 401, is so "manifestly unreasonable" or deficient as to require judicial intervention at this ju ncture. See, e.g., Mortg. Resolution Servicing, LLC v. JPMorgan Chase Bank, N.A., No. 15-CV-0293 (LTS) (JCF), 2017 WL 2305398, at *2 (S.D.N.Y. May 18, 2017). This denial is without prejudice to Plaintiffs renewing their motion after reviewing Defen dants' initial production and/or making a sufficient factual showing that one or two of Plaintiffs' proposed custodians possess information that would not otherwise be discoverable from Defendants' custodians. The Clerk of Court is directed to terminate ECF Nos. 413 and 415. SO ORDERED. (Signed by Judge Jesse M. Furman on 5/6/20) (yv)
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Filing
412
ORDER, In light of the parties' status letter, the conference previously scheduled for April 28, 2020, is ADJOURNED to May 1, 2020, at 2 p.m. and will be held by telephone. To access the conference, counsel should call 888-363-4749 and use access code 5421540#. (Members of the press and public may call the same number, but will not be permitted to speak during the conference.) In accordance with the Court's Emergency Individual Rules and Practices in Light of COVID-19, availa ble at https://www.nysd.uscourts.gov/hon-jesse-m-furman, counsel should adhere to the following rules and guidelines during the hearing as further set forth in this Order. SO ORDERED. ( Telephone Conference set for 5/1/2020 at 02:00 PM before Judge Jesse M. Furman.) (Signed by Judge Jesse M. Furman on 4/24/20) (yv)
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Filing
410
ORDER. In light of the COVID-19 situation, the Court will not hold the upcoming pretrial conference in this case in person. Counsel should submit their joint letter by the Thursday prior to the conference, as directed in the Case Management Plan. In their joint letter, the parties should also indicate their views whether they can do without a conference altogether. If so, the Court will resolve any outstanding issues on the papers alone. If not, the Court will hold the pretrial conference by telephone, albeit perhaps at a different time. To that end, counsel should indicate in their joint letter dates and times during the week of the conference that they would be available for a telephone conference. In either case, counsel should review and comply with the Court's Emergency Individual Rules and Practices in Light of COVID-19, available at https://nysd.uscourts.gov/hon-jesse-m-furman. SO ORDERED. (Signed by Judge Jesse M. Furman on 4/20/20) (yv)
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Filing
402
STIPULATED PROTECTIVE ORDER regarding procedures to be followed that shall govern the handling of confidential material. This stipulation binds the parties to treat as confidential the documents so classified. This Court, however, has not reviewed the documents referenced herein; therefore, by so ordering this stipulation, the Court makes no finding as to whether the documents are confidential. That finding will be made, if ever, upon a document-by-document review pursuant to the procedures s et forth in the Court's Individual Rules and Practices and subject to the presumption in favor of public access to "judicial documents." See generally Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119-20 (2d Cir. 2006). To that end , the Court does not "so order" any provision to the extent that it purports to authorize the parties to file documents under seal without a prior court order. See New York ex rel. Khurana v. Spherion Corp., No. 15-CV-6605 (JMF), 2019 WL 3294170 (S.D.N.Y. July 19, 2019). (Signed by Judge Jesse M. Furman on 2/10/2020) (jwh)
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Filing
397
ORDER terminating 388 Motion for Discovery; granting 390 Motion to Compel. Accordingly, the Court will sign a copy of the stipulation with Plaintiffs' preferred language at pages 17-18. See ECF Nos. 384-7, 386-1. No later than Februar y 7, 2020, one or both sides shall submit a clean copy of the stipulation consistent with the foregoing, in PDF format (on ECF) and in Microsoft Word format by e-mail to the Chambers e-mail address, to be signed and docketed by the Court. There are two other discovery disputes pending in this matter. First, by letter dated January 23, 2020, Plaintiffs sought to compel production from NASDAQ Stock Market LLC and NASDAQ BX, Inc. of certain documents and information (collectively, the "Br ogaard Data"). See ECF No. 390. The Court expresses no view on whether Plaintiffs' request would have been timely absent their September 6, 2019 document requests. But in light of the earlier requests, and substantially for the other reas ons set forth in Plaintiffs' letter, Plaintiffs' motion to compel production of the Brogaard Data is GRANTED. As further set forth herein. Finally, Defendants are reminded that, pursuant to the Court's Individual Rules and Practices, all letters (indeed, all filings) should be filed in a text-searchable format. The Clerk of Court is directed to terminate ECF Nos. 388 and 390. As further set forth herein. SO ORDERED.. (Signed by Judge Jesse M. Furman on 2/6/2020) (ks)
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Filing
396
ORDER: Attached to this Order is a copy of the letter that the Court sent today to the Securities and Exchange Commission. SO ORDERED. (Signed by Judge Jesse M. Furman on 1/29/2020) (ks)
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Filing
391
ORDER. Upon review of the parties' competing letters regarding the proposed order governing electronically stored information, the Court concludes that it would be prudent, and helpful, to seek the input of the Staff of the Securities and Exch ange Commission (the "SEC"). To that end, that Court proposes to send the attached letter to the SEC. If any party objects to this proposal (or believes that the letter should be revised in some way), it shall file a letter to that effect by noon on January 28, 2020. SO ORDERED. (Signed by Judge Jesse M. Furman on 1/24/20) (yv)
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Filing
326
MEMORANDUM OPINION AND ORDER: re: (113 in 1:14-md-02589-JMF, 320 in 1:14-cv-02811-JMF) MOTION to Certify May 28, 2019 Opinion and Order for Interlocutory Appeal Pursuant to 28 U.S.C. § 1292(b) re: (313 in 1:14-cv-02811-JMF) Memorandum & Opini on filed by New York Stock Exchange, L.L.C., Direct Edge ECN, L.L.C., Chicago Stock Exchange, Inc., Nasdaq OMX BX, Inc., Bats Global Markets, Inc., The Nasdaq Stock Market L.L.C., BATS Global Markets, Inc., NYSE Arca, Inc. The Clerk of Court is dire cted to terminate Docket No. 113 in 14-MD-2589 and Docket No. 320 in 14-CV-2811. All dates and deadlines including the Exchanges' July 25, 2019 deadline to file their answers, the August 15, 2019 initial pretrial conference, and the parties 9; August 8, 2019 deadline to file a joint letter and proposed case management plan in advance of that conference - remain in effect. See Docket Nos. 117, 123. And as set forth herein. SO ORDERED. (Signed by Judge Jesse M. Furman on 7/16/2019) Filed In Associated Cases: 1:14-md-02589-JMF et al.(ama)
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Filing
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OPINION AND ORDER re: (82 in 1:14-md-02589-JMF) MOTION to Dismiss (Renewed Motion to Dismiss The Second Consolidated Amended Complaint) filed by New York Stock Exchange, L.L.C., Direct Edge ECN, L.L.C., Chicago Stock Exchange, Inc. , Nasdaq OMX BX, Inc., The Nasdaq Stock Market L.L.C., Bats Global Markets, Inc., NYSE Arca, Inc. A motion to dismiss tests "only the legal feasibility of a complaint. The test of a claim's substantive merits is reserved for the su mmary judgment procedure" or, if necessary, trial. Goel v. Bunge, Ltd., 820 F.3d 554, 558 (2d Cir. 2016) (citation and internal quotation marks omitted). Given the Court of Appeals' earlier opinion in this case, and the law governing pr ivate Section 10(b) claims, the Court concludes that Plaintiffs' allegations (taken as true, for now) have "nudged [themselves] across the line from conceivable to plausible" and, thus, are sufficient at this stage of the litigation. Twombly, 550 U.S. at 570. Accordingly, and for the reasons discussed above, the Exchanges' motion to dismiss is DENIED. By separate order to be entered today, the Court will schedule an initial pretrial conference at which the parties will finalize a case management plan to govern further proceedings. The Clerk of Court is directed to terminate Docket No. 82. SO ORDERED. (Signed by Judge Jesse M. Furman on 5/28/2019) Filed In Associated Cases: 1:14-md-02589-JMF, 1:14-cv-02811-JMF, 1:14-cv-03133-JMF, 1:14-cv-03608-JMF(ne)
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Filing
282
OPINION AND ORDER re: (7 in 1:14-md-02589-JMF) MOTION to Dismiss Second Consolidated Amended Complaint. filed by New York Stock Exchange, L.L.C., Direct Edge ECN, L.L.C., Chicago Stock Exchange, Inc., Nasdaq OMX BX, Inc., The Nasdaq Stock Market L.L.C., Bats Global Markets, Inc., NYSE Arca, Inc., (23 in 1:14-md-02589-JMF) MOTION to Dismiss Amended Complaint filed by Barclays Capital, Inc., Barclays PLC, (15 in 1:14-md-02589-JMF) MOTION to Di smiss Second Consolidated Amended Complaint filed by Barclays Capital, Inc., Barclays PLC: For the reasons stated above, Defendants' motions to dismiss the Complaints in these cases are GRANTED, and the Complaints are dismiss ed in their entirety. That leaves only the question of whether Great Pacific and the SDNY Plaintiffs should be granted leave to amend their complaints for a second and third time, respectively. The SDNY Plaintiffs do not ask for leave to amend, a nd the Court will not grant them leave sua sponte, both because amendment would likely be futile and because, in granting leave to file a second amended complaint, the Court expressly warned the SDNY Plaintiffs that they would not be given another opportunity to address the issues raised in Defendants' motions to dismiss. See, e.g., Clark v. Kitt, No. 12-CV-8061 (CS), 2014 WL 4054284, at *15 (S.D.N.Y. Aug. 15, 2014) (holding that the plaintiff's failure to remedy the complaint&# 039;s deficiencies identified by an earlier motion to dismiss "is alone sufficient ground to deny leave to amend"); see also, e.g., Ruotolo v. City of N.Y., 514 F.3d 184, 191 (2d Cir. 2008) (affirming the district court's denial of leave to amend in part because of the previous opportunities that the plaintiff had received to amend the complaint). (See 14-CV-2811, Docket No. 246). Great Pacific, however, does seek leave to amend (Great Pacific Mem. 25), and its request is on firm ground given "the liberal standard set forth in Rule 15" of the Federal Rules of Civil Procedure." Loreley Fin. No. 3 Ltd., 2015 WL 4492258, at *24. As discussed, many of the deficiencies in the Amended Complaint turn on Gre at Pacific's failure to plead sufficient facts to establish a plausible claim rather than an inherently flawed legal theory. And while Great Pacific was also granted leave to amend its complaint after Barclays's initial motion to dismiss and warned that it would not be given another opportunity to address the deficiencies alleged by Barclays (see Barclays's Reply Mem. 10), the initial motion and the present motion are not identical and the earlier amendment was made "in the critical absence of a definitive ruling." Loreley Fin. No. 3 Ltd., 2015 WL 4492258, at *25. Put simply, the Court cannot say that Great Pacific is unable to plead facts sufficient to survive a motion to dismiss and, therefore, that amend ment would necessarily be futile. See Lucente v. Int'l Bus. Machines Corp., 310 F.3d 243, 258 (2d Cir. 2002). ("[A]mendment... is futile if the proposed claim could not withstand a motion to dismiss pursuant to Federal Rule of Civil Proc edure 12(b)(6)."). Accordingly, Great Pacific is granted leave to file a second amended complaint no later than four weeks from the date of this Opinion and Order. That said, because Great Pacific's case (15-CV-168) will be the only m atter still pending in the MDL, the parties are ordered to show cause in writing no later than two weeks from the date of this Opinion and Order why the Court should not suggest to the JPML that 15-CV-168 be remanded to the Central District of Cal ifornia and the MDL closed. As discussed at the outset of this Opinion and Order, the Court's task in deciding the present motions was not to wade into the larger public debate about HFT that was sparked by Michael Lewis's book Flash Boys . Lewis and the critics of HFT may be right in arguing that it serves no productive purpose and merely allows certain traders to exploit technological inefficiencies in the markets at the expense of other traders. They may also be right that there is a need for regulatory or other action from the SEC or entities such as the Exchanges and Barclays. Those, however, are debates and tasks for others. The Court's narrow task was, instead, to decide whether the Complaints in these cases we re legally sufficient to survive Defendants' motions to dismiss. Having concluded that they are not, the Complaints must be and are dismissed. The Clerk of Court is directed to terminate 14-MD-2589, Docket Nos. 7, 15, and 23, and to close all member cases except for 15-CV-168. (Signed by Judge Jesse M. Furman on 8/26/2015) ***As per chambers, Filed In All Member Cases: 1:14-md-02589-JMF et al.(tn) Modified on 8/26/2015 (tn).
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