UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

 

Case No. 04 C 397

 

 

Judge John Robert Blakey

 

LAST ATLANTIS CAPITAL LLC, et al.,

Plaintiffs,

v.

AGS SPECIALIST PARTNERS, et al.

Defendants.

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MEMORANDUM OPINION AND ORDER

In this 13-year old case, Plaintiffs Last Atlantis Capital LLC, Speed Trading 

LLC, River North Investors LLC, Bryan Rule and Brad Martin have sued various 

Defendants including Susquehanna Investment Group and Susquehanna 

International Group, LLP, alleging violation of the federal securities laws and 

various state law claims. More specifically, Plaintiffs claim that Defendants failed 

to provide best execution in the handling of trade orders Plaintiffs submitted to 

them. The case is currently before the Court on various motions, many of which 

involve (directly or indirectly) certain exhibits Plaintiffs planned to offer at trial. 

For the reasons explained below, the Court finds that those exhibits – which consist 

of lists of orders that Plaintiffs claim were mishandled by Defendants – are not 

admissible at trial. What’s more, because Plaintiffs have conceded (and indeed the 

record confirms) that they cannot prove their claims without these exhibits, the 

Court finds that Defendants are entitled to judgment as a matter of law on all 

remaining claims. 
Factual Background

A. Procedural History

This case had a tough time getting off the ground. Plaintiffs filed their initial 

complaint on January 20, 2004 [1], and Judge Bucklo, to whom the case was 

initially assigned, dismissed it on March 30, 2005 [102]. Plaintiffs filed an amended 

complaint June 1, 2005 [113]; a Second Amended Complaint on October 4, 2005 

[147]; and a Consolidated Complaint on November 7, 2005 [164]. The Court 

dismissed the Consolidated Complaint on September 13, 2006 [238]. Plaintiffs 

moved for reconsideration, and Judge Bucklo granted the motion as to certain 

named defendants and gave Plaintiffs two weeks to amend their complaint naming 

only those defendants [284]. 

On April 5, 2007, Plaintiffs filed their Consolidated Amended Complaint 

[286], which is still the operative complaint today, though Judge Bucklo later 

dismissed numerous defendants for lack of service. The operative complaint –

proceeding against AGS Specialists, Bear Wagner, Knight Financial Products, SLKHull Derivatives, Goldman Sachs Execution and Clearing, TD Options, Citigroup 

Derivatives Market, Inc., and Group One − alleged eight counts, including violation 

of §10(b) and Rule 10b-5, breach of contract, common law fraud, and breach of 

fiduciary duty, among other claims. When Judge Bucklo allowed the complaint to 

proceed, she denied Plaintiffs’ untimely request to file yet another amended 

complaint based upon the record, including the length of the litigation (four years), 

the number of previously filed complaints (five) and the numerous motions to

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dismiss or for reconsideration that had already been filed and resolved (at least 15 

by that time). See [408], p. 15, n.6. 

In addition to all of the motions regarding the many attempts to amend the 

complaint, the Court considered and resolved a series of motions for summary 

judgment before discovery got underway in earnest. 

On March 10, 2008, CDMI1 moved to dismiss the operative complaint [428]; 

Judge Bucklo converted the motion to a motion for summary judgment and, after 

briefing, granted the motion [548, 549]. On May 21, 2009, Knight Financial filed a 

motion for summary judgment [584]; Judge Bucklo granted that motion on March 

26, 2010 [758], finding that Plaintiffs failed to put forward any evidence connecting 

their expectations that Knight would provide “best execution” to statements made 

by Knight. Thereafter, on April 12, 2010, Defendants SLK-Hull and Goldman 

Sachs also filed a motion for summary judgment [764], arguing that the Court’s 

decision resolving Knight’s summary judgment motion would apply with equal force 

to the other Defendants. On November 4, 2010, Judge Bucklo granted in part and 

denied in part Defendants’ motion for summary judgment [833, 834]. Specifically, 

the Court ruled that Last Atlantis’ claims and Brad Martin’s claims under Rule 

10b-5(a), (b) and (c) would survive against the Susquehanna Defendants and certain 

other Defendants, and it dismissed Martin’s claims against AGS, all claims 

(including state law claims) brought by River North, Bryan Rule and Speed 

Trading, and all claims (including state law claims) brought against Goldman Sachs 

1 CDMI, though not named as a defendant in the operative complaint, acquired the options business 

of Knight Financial Products and Knight Trading Group.

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and SLK. Judge Bucklo, however, declined to dismiss Last Atlantis’ state law 

claims against the Susquehanna Defendants, AGS, SIG, Bear Wagner and TDO, or 

Martin’s state law claims against the Susquehanna Defendants, Bear Wagner and 

TDO.

With regard to the Susquehanna Defendants,2 Judge Bucklo similarly found 

that two alleged statements on SIG’s website were actionable because they 

ostensibly showed that Defendants had publicly asserted: (1) they had 

institutionalized the pursuit of best execution; (2) they desired to meet and exceed 

regulatory requirements for “execution quality”; and (3) they deliver “best 

execution.” From these statements, the Court determined that, at that preliminary 

stage of the proceedings, a reasonable jury could conclude that Defendants promised 

to provide “best execution” when handling orders. Judge Bucklo determined that 

Last Atlantis and Martin proffered evidence that their expectations that 

Defendants would provide “best execution” were based upon these statements. 

All of these motions, however, were filed and decided without the benefit of 

any significant discovery. Indeed, on April 15, 2010, Magistrate Judge Keys, who 

had the case for discovery supervision, stayed discovery pending Judge Bucklo’s 

ruling on Defendants SLK-Hull and Goldman Sachs’ summary judgment motion. 

See [767]. Following Judge Bucklo’s ruling, on December 13, 2010, Judge Keys 

2 In its decision today, this Court emphasizes the Susquehanna Defendants, because they are the 

only Defendants still in the case as of this writing. The preliminary motions to dismiss and for 

summary judgment eliminated many of the Defendants originally named in the complaint. 

Additionally, on September 30, 2016, Plaintiffs voluntarily dismissed all claims against TDO with 

prejudice [1571]; on October 6, 2016, Plaintiffs voluntarily dismissed all claims against AGS with 

prejudice [1574]; and, on December 13, 2016, Plaintiffs voluntarily dismissed all claims against Bear 

Wagner with prejudice [1631].

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directed Plaintiffs to obtain discovery regarding audit trail data from the 

Exchanges; he indicated that, once the audit trail data was turned over, he would 

determine how discovery would proceed in order to meet the discovery deadline, 

then set for June 1, 2011. See [839].

On January 21, 2011, Judge Bucklo issued an order inviting additional 

summary judgment briefing on Plaintiffs’ state law claims. See [856]. Consistent 

with that invitation, Knight [869], Susquehanna/Bear Wagner/TDO [871], and SLKHull/GS [874] all filed motions for summary judgment on Plaintiffs’ state law 

claims. On June 6, 2011, Judge Bucklo ruled on all three motions, granting each in 

part and denying each in part. [965, 966]. As a result, Judge Keys lifted the 

discovery stay on June 18, 2012 [1037]. Thereafter, on July 12, 2012, Judge Keys 

adopted Plaintiffs’ scheduling order, which contemplated full discovery by all 

parties [1042]. 

B. Reassignment and Post-reassignment Procedural History

On October 6, 2015, the case was reassigned from Judge Bucklo to this Court 

[1393]. At the initial status before this Court, Defendants advised that they 

planned to file dispositive motions; Plaintiffs’ counsel objected, noting that 

Defendants had already filed their summary judgment motions and should not be 

permitted to file another. At the same time, Plaintiffs indicated that they planned 

to file a motion for partial summary judgment. 

The Court advised Plaintiffs that, if they intended to assert a waiver 

argument in response to Defendants’ renewed summary judgment motions, they 

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could do so, but would also need to respond on substantive grounds as well. 

Specifically, the Court advised “if you have an argument on forfeiture or waiver, law 

of the case, make sure that that’s part of your calculation.” Transcript of 

Proceedings of 10/21/15 [1402], p. 25. This Court then set a briefing schedule on 

any further dispositive motions, in an effort to bring this case to final resolution 

either by way of motion or subsequent trial. See [1405]. This Court then had to 

extend that schedule for the Plaintiffs at least 14 times. See [1407], [1408], [1432], 

[1434], [1441], [1465], [1478], [1488], [1489], [1492], [1493], [1498], [1508], [1519].

On January 22, 2016, Defendants AGS, Bear Wagner, SIG and TDO filed 

their motion, seeking summary judgment on Plaintiffs’ Amended Consolidated 

Complaint in its entirety [1409]. On February 1, 2016, Plaintiffs filed their motion, 

seeking partial summary judgment on certain state law claims against SIG and 

TDO, and against all Defendants on their affirmative defenses [1442]. 

On February 11, 2016, while the motion practice remained pending, this

Court also set the case for trial on November 14, 2016 – giving the parties a full 

nine months’ notice. That same day, the Court set the case for a final pretrial 

conference on October 31, 2016, and ordered the parties to file their proposed final 

pretrial order by October 17, 2016. See [1478]. By April 7, 2016, after consideration 

of the record, this Court determined that the parties were unable to work 

cooperatively in good faith, and, after a status and motion hearing, set the case for 

regular status hearings on April 28, 2016, June 7, 2016, July 28, 2016, and 

September 13, 2016 [1540]. The Court advised the parties that they should be 

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prepared to report at each status hearing on their trial preparation efforts, and that 

they should, absent an emergency, notice any and all motions for presentment at 

the status hearing dates set by the Court [1540]. At each such status hearing, the 

Court asked the parties about their trial preparation and warned the parties, again 

and again, that they must be prepared to go to trial on the scheduled date. See

Transcript of Proceedings of 4/28/16 [1554], p. 6 (“I'm not going to move the trial 

date”; “we have to work toward meeting that trial deadline.”); [1557] (“All 

previously set dates and deadlines to stand”); [1576] (“All other deadlines to stand”). 

Despite these clear admonishments, at the status hearing on October 13, 

2016, the parties advised the Court that they were not able to meet the Court’s 

deadline for the filing of the proposed final pretrial order, and Plaintiffs requested 

additional time. The Court, after noting that the schedule for filing the order had 

been set months ago, initially denied the motion; but after considering the prejudice 

to Defendants and recognizing that the proposed pretrial order should be filed 

jointly, the Court ultimately allowed the parties to file their proposed final pretrial 

order on October 19, 2016. See [1576]. The Court declined to extend the date for 

filing motions in limine, however, and required the parties to file those, as 

previously ordered, on October 17, 2016. Id.

C. Procedural History Relating to Plaintiffs’ Lists of “Relevant Orders”

Having by this time reviewed and analyzed the parties’ summary judgment 

submissions, the Court advised Plaintiffs that it had grave concerns about the 

admissibility of the exhibits Plaintiffs referred to as the lists of relevant orders. The 

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Court advised Andrew Friedman, counsel for Plaintiffs, that he would have to show 

that the orders included on the lists were mishandled or they likely would not be 

relevant to any issue left in the case; and counsel agreed. Transcript of Proceedings 

of 10/13/16 [1578], pp. 9-10. In an attempt to address the Court’s concerns, attorney 

Friedman represented that Plaintiffs’ experts, Robert Lowry and Dr. Roy 

Freedman, would testify that the orders included on the list were, in fact,

mishandled; and counsel further represented that the experts would testify and 

establish the analysis of the underlying data showing whether any orders were 

mishandled. Id., pp. 11-12. 

After review of the record and hearing counsel’s evidentiary proffer, this 

Court advised: 

Based on my review of what you’ve submitted, I don’t see how you’re 

going to be able to show that any specific order was mishandled. And 

simply having an expert opine, based on what you just said, is not 

going to be sufficient based on what orders were mishandled or not 

mishandled because there’s more factors involved that simply what 

you’ve articulated. And there would also be other predicate 

determinations which the expert would not be able to address 

including who exactly received it, who exactly sent it. You’ve got some 

serious issues, Counsel.

[1578], p. 12. The Court further advised that under the law a mere three- or fivesecond delay could not, standing alone, establish that an order was unlawfully 

“mishandled” and that other determinative factors would also need to be shown. In 

no uncertain terms, this Court warned counsel that the Plaintiffs, like all litigants, 

needed to adhere to the rules of evidence as to the proposed exhibit: 

The Court: You’re the plaintiff. You bear the burden of proof. And 

you’re the proponent of the exhibit, which means you have to show -

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Friedman [counsel for Plaintiffs]: Yes.

The Court: − you have to show the admissibility of the exhibit. The 

burden does not shift to the other side simply because you proffer some 

window of delay and then say, all right, go ahead and try to prove that 

this is, in fact, inadmissible by some burden-shifting. There’s no 

burden-shifting here. It’s not like you make a prima facie case and 

then there’s a response. This is your exhibit. You have to show that 

it’s authentic, that it is relevant, that it satisfies 403, that it is nonhearsay or an exception to hearsay, et cetera, et cetera, et cetera. All 

they have to do is, “Objection, your Honor,” and if you haven’t laid the 

foundation, it doesn’t come in.

Id., p. 16. 

This Court’s serious misgivings about Plaintiffs’ proposed proof did not come 

as a surprise to counsel. Indeed, long ago, Magistrate Judge Keys issued an order 

on March 13, 2009, stating that, before he would order Defendants “to engage in 

further time-consuming and expensive discovery, the Court needs to assure itself 

that Plaintiffs’ allegations are not based on suspicions and hunches, but on real 

evidence.” [554]. Judge Keys, therefore, ordered Plaintiffs to identify and produce 

“a listing of at least 500 specific orders that they claim were mishandled (at least 50 

from each plaintiff and 25 for each defendant), along with an explanation as to how 

they concluded that the orders were fraudulently mishandled as opposed to having 

been merely not executed.” Id. Plaintiffs requested and received an extension of 

time to produce the requisite orders [561]; they were due by April 17, 2009. 

Four years later, Judge Keys was still dealing with the issue. In a decision 

issued March 4, 2013, in connection with various discovery disputes and motions –

the “bulk of which involve[d] the Relevant Orders, including the underlying data 

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and methodology the plaintiffs used to identify these particular orders as being 

‘relevant’” − Judge Keys summarized the discovery that occurred in the wake of his 

2009 Order requiring Plaintiffs to come up with some actual proof of their claims. 

Judge Keys indicated that some plaintiffs (Last Atlantis and Speed Trading) had 

submitted charts identifying orders, along with explanatory affidavits; others (River 

North, Brad Martin and Bryan Rule) initially conceded that they could identify only 

unexecuted orders, but subsequently submitted charts and lists of purportedly 

fraudulently mishandled orders; and still others (Lulu, Lola, Friendly Trading and 

Goodbuddy) failed to respond at all. See [1164], p. 6. 

Furthermore, he noted, as the discovery disputes continued, that Plaintiffs 

were taking an untenable position: 

[i]nformation concerning the relevant orders is plainly relevant –

indeed, that evidence is at the crux of the claims at issue in this 

lawsuit. To be sure, all of the defendants question the plaintiffs’ 

ability to identify specific orders that they claim were handled 

improperly and for which they seek millions of dollars from 

defendants. Indeed, this has been the primary focus of the defendants’ 

discovery over the past several years. The plaintiffs are claiming that 

the defendants failed to properly execute these orders; the defendants 

are entitled to discovery concerning how the plaintiffs arrived at those 

claims and what evidence they have to substantiate those claims.

[1164], p. 11. Ultimately, Judge Keys rejected Plaintiffs’ attempt to withhold 

information relating to the lists of orders on the basis of privilege:

Nor is the discovery sought privileged. Although the spreadsheets may 

have been prepared in anticipation of trial, the basis for the plaintiffs’ 

claims should have preceded the filing of the suit (to satisfy Rule 11). 

And, to the extent the information requested concerning the 

spreadsheets reflects mental impressions, they would seem to be those 

of the plaintiffs’ experts, not their attorneys. Discovery concerning 

how certain orders were singled out as being improperly executed, 

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again, would seem to go to the crux of the plaintiffs’ case; the Court

fails to understand why the plaintiffs continue to want to hide the ball 

on the issues.

Id. Specifically concerning the Susquehanna Defendants’ motion to compel, Judge 

Keys again addressed the question of whether the Defendants were entitled to 

discovery concerning Plaintiffs’ lists of orders:

As the Court understands it, the plaintiffs took underlying data –

audit trail data – ran searches and programs on it and came up with a 

list of “relevant orders,” i.e., the orders they claim were either 

mishandled by the defendants or not executed. The defendants claim 

they need to be able to see what the plaintiffs did with the data, to see 

how they came up with the lists, in order to test the validity of their 

allegations of mishandling and/or non-execution. The plaintiffs claim 

that the searches and the programs run to create the lists from the 

audit trail data amounts to work product. But the list of relevant

orders was not simply prepared in anticipation of trial, it was prepared 

because the Court ordered the plaintiffs to prepare it; the plaintiffs are 

claiming that the defendants mishandled these orders or fraudulently 

failed to execute them in accordance with established rules and 

protocols. The defendants have the right to test those claims, and the 

requested discovery is the easiest and most efficient way to get at the 

issue; forcing the defendants to re-create the underlying data, figure 

out the specific methodology employed by the plaintiffs and take the

necessary steps to determine exactly how the plaintiffs arrived at the 

orders they did, would, indeed, cause undue hardship.

[1164], p. 14. Judge Keys’ frustration with Plaintiffs’ improper discovery tactics

was clear:

Reduced to their essence, the plaintiffs’ claims allege that certain 

orders were mishandled by the Specialist defendants in violation of 

Exchange policies and in violation of the securities laws; 

fundamentally, the Court accepts that the defendants would need to 

know how the plaintiffs determined which orders were “Relevant 

Orders” and the basis for their claims that those orders were 

mishandled. The plaintiffs must have the information that allowed 

them to discern from the universe of all orders which were “Relevant” 

and why; it is only fair that the defendants – who are being hauled into 

court to defend themselves against these claims – are allowed 

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discovery on the issue. The information is not work product, it is the 

factual basis of the plaintiffs’ claims and it should be disclosed. This 

has consistently been the Court’s view of this case; yet years have passed 

without this information ever coming to light. It is time for the 

plaintiffs to stop resisting the disclosure of this information, to provide 

the requested discovery and to move this case forward to resolution.

Id., p. 17 (emphasis added). 

A year and a half later, Magistrate Judge Cole, who had by then inherited 

the case from Judge Keys when he retired, remained equally frustrated by 

Plaintiffs’ failure to move the case forward with real evidence to support their 

claims. On September 29, 2014, Magistrate Judge Cole held a hearing on 

Defendants’ motion to compel the deposition of Robert DeMeritt, the Last Atlantis 

partner and designated expert who had created the infamous lists of orders. 

Plaintiffs had taken the position that DeMeritt was not relevant and should not be 

deposed, despite the fact that DeMeritt was the individual who had run the critical 

spreadsheets and maintained the underlying data. Judge Cole observed:

[t]here is a difference between running an analysis of underlying data 

and the validity of the underlying data. Nobody is going to dispute – or 

they will dispute. But obviously you can test somebody who says, well, 

I have this piece of paper and that piece of paper and this and that, 

and I added up all the invoices, and we sold a million dollars worth of 

stuff to GMAC, and that's our damages. . . . That’s easy. But the 

underlying – the validity of the underlying data the experts cannot 

opine on in this case obviously requires, even for admissibility 

purposes, that whoever didn’t just gather this up, but apparently 

created the mechanism for obtaining it and − well, the valid – the

underlying validity, that person has to testify.

Transcript of Proceedings of 9/29/14 [1559-15], pp. 11-12. In Judge Cole’s view, 

Friedman had not been forthcoming with Plaintiffs’ expert disclosures, initially 

disclosing DeMeritt as an expert, then advising the parties that DeMeritt was no 

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longer available to serve as an expert, then deciding that DeMeritt would serve as 

an expert. Judge Cole admonished Friedman that “[y]ou can’t make it this 

labyrinthian and this hard for opponents in a case,” and he observed, being 

relatively new to the case, “I was struck with how difficult you made it and how it 

was easy to see why these delays occurred.” Id., pp. 29, 30. Judge Cole found that 

DeMeritt “is really critical to this case,” “[a]nd I’m not going to take – nobody needs 

to take your word for it that he’s not.” Id., pp. 31, 32. He granted the motion to 

compel.3 

Two years later, in the final stages of trial preparation before this Court, the 

parties were still fighting over the lists of orders. Defendants were still claiming 

that Plaintiffs had no evidence to support their claims, and Plaintiffs still had not 

produced a single witness to testify as to the validity of the underlying data and the 

resulting lists of orders, and still had not produced any witness to testify concerning 

the methodology used to create the lists of orders. In response to this Court’s 

inquiry just a month before trial, Plaintiffs were still unable to reassure the Court 

that they were prepared to lay a sufficient evidentiary foundation for the lists of 

orders. Without the orders, as Plaintiffs conceded in open court, Plaintiffs could not 

legally succeed on any of their claims, making a trial unnecessary. See Transcript 

of Proceedings of 10/13/16 [1578], pp. 7-8 (Counsel for Plaintiffs indicating that “the 

specific spreadsheets with the specific – identifying the specific orders, that’s critical 

3 Plaintiffs’ counsel’s position at the hearing before Judge Cole seems incredible today, given that 

DeMeritt was the one and only fact witness Plaintiffs presented at the evidentiary hearing held to 

confirm the admissibility of the lists of orders. See infra pp. 21-27, 35-49.

13

 
to the case” and conceding that, without the spreadsheet exhibits, none of Plaintiffs’ 

claims would survive.). 

As a result, before committing to empaneling a jury and forcing the litigants 

to incur any further expenses, this Court directed Plaintiffs’ counsel to file a 

certification under Rule 11 laying out the purported evidentiary basis for Plaintiffs’ 

critical exhibits [1576]. Counsel submitted a certification, [1587], but it missed the 

mark and failed to address the fatal concerns raised by this Court at the October 13, 

2016 status hearing. In his certification, counsel represented in conclusory fashion:

[P]laintiffs will present the testimony of Mr. DeMeritt to establish a 

foundation for the spreadsheets setting forth detailed information 

regarding the times the Orders were sent to each exchange and routed 

to defendant Bear or SIG for execution, the prevailing Exchange and 

National Best Bid and Offer price, the length of time the orders were 

pending prior to execution or cancellation and other material 

information under F.R.E. 901(b)(1), and (7)-(9), R. 1005, R. 1006 and/or 

R.1007. . . . With respect to objections raised by defendants to the 

admissibility of this evidence, plaintiffs will establish that the 

information in the spreadsheets are not barred under the hearsay 

rules under exceptions in F.R.E. 803 (6), (8) and (17). 

[1587]. Despite this Court’s explicit instructions, Plaintiffs’ counsel did not explain 

specifically how he would lay a foundation for the underlying data from which the 

spreadsheets were derived. Among other short-comings, counsel failed to explain 

what he meant by “other material information”; failed to provide any information to 

substantiate his bare assertion that the orders would survive a hearsay challenge; 

and failed to provide any factual support for his suggestion that the lists of orders 

constitute “records of a regularly conducted activity,” public records or market 

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reports such that they would fall within the hearsay exceptions referenced. See

[1594].

In light of the above, this Court set the matter for an evidentiary hearing, 

seeking to give Plaintiffs’ counsel one last opportunity to reassure the Court that 

empaneling a jury would not be a complete waste of everyone’s time.4 At the 

evidentiary hearing, the Court noted that “there’s been a systemic failure of 

plaintiff to comply with routine deadlines and to give a straight answer to a simple 

question, so proceeding by way of proffer and even requested Rule 11 certifications 

has been ineffectual.” Transcript of Proceedings of 10/27/16 [1610], p. 6. Thus, the 

Court noted, the point of the evidentiary hearing was to ascertain exactly what 

evidence Plaintiffs planned to offer at trial concerning the critical spreadsheets and 

to determine whether counsel could actually lay an evidentiary foundation for those 

exhibits and otherwise establish their admissibility:

4 As noted above, this Court’s concerns regarding what Plaintiffs characterize as the “relevant 

orders” certainly did not come as any surprise to Plaintiffs. As the record make clear, Defendants 

have challenged Plaintiffs’ proof relating to the alleged mishandled orders throughout these 

proceedings, and the question of whether Plaintiffs had anything more than a hunch to support their 

claims has been on the table for almost a decade. See [343] (6/19/07 Order requiring Plaintiffs to 

produce lists containing information to identify relevant orders); [554] (3/13/09 Order requiring 

Plaintiffs to demonstrate that their claims were based on real evidence, and not based on suspicions 

and hunches); [1164], p. 11 (3/4/13 Order holding that Plaintiffs were required to demonstrate what 

evidence they have to substantiate their claims; “[d]iscovery concerning how certain orders were 

singled out as being improperly executed, again, would seem to go to the crux of the plaintiffs’ case; 

the Court fails to understand why the plaintiffs continue to want to hide the ball on the issues.”); 

[1559-15], pp. 11-12 (9/29/14 ruling that Defendants had an absolute right to depose the witness who 

created the mechanism for obtaining the evidence relating to relevant orders); [1378] (Defendants’

10/2/15 motion to strike relevant orders); [1381] (Defendants’ motion to disqualify expert Robert 

Lowry); [1402], pp. 5, 13-14 (Transcript of proceedings of 10/21/15 discussing potential summary 

judgment arguments, including Plaintiffs’ proof problems and their failure to produce evidence

demonstrating that any orders were mishandled); [1406] (Transcript of proceedings of 11/17/15 

discussing forthcoming summary judgment motion raising Plaintiffs’ proof problems and failure to 

offer any proof of elements of their claims); [1410], pp. 11-23 (Defendants’ 1/22/16 memorandum in 

support of summary judgment, arguing that Plaintiffs offered no evidence that any order was 

mishandled); [1580], pp. 1-9 (Defendants’ 10/17/16 motion in limine to preclude relevant orders).

15

 
Right now I want to know what the evidence is because I can’t get a 

straight answer. So let’s get a straight answer. Let’s figure out what 

the exhibit is and what the testimony is, and then I can apply the rules 

of evidence. Because right now I can’t do it with a hypothetical. 

Id., p. 7. 

Unfortunately, Plaintiffs made this Court’s task even more difficult when 

they failed to bring copies of their actual exhibits to the hearing. The following 

exchange illustrates the Court’s many attempts to address Plaintiffs’ ongoing 

inability to support claims with actual evidence: 

THE COURT: Let me − hang on a second, hang on a second. Let me 

interrupt. This is your main exhibit. You don’t − do you have a copy of 

what the exhibit is?

MR. FRIEDMAN: Yes.

THE COURT: Okay. Can you get it to me and opposing counsel, the 

version you’re going to use at trial. Not a draft, not a version that’s 

going to change between now and trial, but the version, the [whole]

version, can you get it to me by the end of business today?

MR. FRIEDMAN: I probably cannot. They have the copies of that, but−

THE COURT [to defense counsel]: Do you have a copy of it?

MR. STERN: We have what he has sent us, yes, your Honor.

THE COURT: All right. We’re going to take a little break. You’re going 

to show him the copy that he’s given you. You’re going to confirm that 

that’s your exhibit.

MR. FRIEDMAN: Okay.

THE COURT: Because I want a copy of the exhibit. Because once you 

hand it to me, that’s going to be the exhibit whose admissibility is 

going to be tested in this hearing.

MR. FRIEDMAN: Okay. These are big spreadsheets.

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THE COURT: I don’t care how big it is. This is your evidence. You can 

bring in 20 bankers boxes, if that’s what your evidence is.

MR. FRIEDMAN: Okay.

THE COURT: Whatever your evidence is, testimony and exhibits. I 

don’t know how clear − I don’t know how I can be more clear. I need to 

know what your exhibit is because I don’t know if it’s coming into 

evidence, and I can’t make an assessment under the rules of evidence if 

you don’t bring the exhibit to the hearing. . . . Okay. And do you have 

any summary exhibits to − because obviously it will be normally not 

the routine practice to publish 20,000 pages to the jury. So normally it 

happens all the time, like in a wiretap case, they’ve got all these phone 

records. They move the phone records in, and then there’s a summary 

exhibit which basically breaks down the larger exhibit, and that’s what 

the person would testify to in terms of authentication of both the 

underlying exhibit and the summary exhibit. And then once both of 

those are in, which there’s independent foundation for each, that’s 

what the experts would use in aid of their testimony. So it would be 

both not just a demonstrative, but a summary exhibit. So every version 

of every exhibit that you want to admit with respect to this area of 

evidence, I want to have it, and I want to have the version. Because I 

don’t want to have another version come up two weeks from now on the 

14th of November, oh, Judge, I’ve changed the exhibit, and now it’s 

this, because that’s going to be excluded as untimely. Because this 

might be excluded as untimely. At this point I don’t know what it is. So 

can the parties meet and confer right now. Do you have the other 

exhibits? It sounds like they have the spreadsheets, but it doesn’t 

sound like that’s all the pieces of evidence you’re going to try to seek to 

admit, right?

MR. FRIEDMAN: The spreadsheets [are] what I thought we were 

dealing with today.

THE COURT: Well, the spreadsheets [are] the beginning of it, but if 

you get the spreadsheets into evidence and you can’t get your 

summaries or any other exhibit in, then you’re also going to have a 

problem. And you’re going to have a problem with your experts and 

you’re going to have a problem with directed verdict. So this is why 

we’re doing it now because I want to have it tied down, and I don’t 

want to have a discovery dispute or a late disclosure dispute while I 

got 14 people in the box who are waiting back there. Because I have a 

grave concern − and it’s been predicated by the track record in this 

case − that there will not be an efficient trial. And we will have the 

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jury waiting hours at a time while we’re arguing about something, 

about whether or not it was disclosed or whether or not it’s the same 

thing, which is why we’re doing this on a pretrial basis. Let me ask the 

question again. Other than the spreadsheet, do you have the other 

exhibits − exhibits with an S − that you intend to admit into evidence?

MR. FRIEDMAN: No, I do not.

THE COURT: Okay. When can you get that composite exhibit, which 

would be the summaries, anything else you want to use, any 

demonstratives you want to use, the underlying exhibits, the dataset, 

whatever, all of your evidence. Because I am tying you down, because I 

need to, because I have a responsibility to the jury. That entire 

universe, how long would it take you to submit it? Now, obviously if it’s 

going to be 20,000 pages, some of it’s going to be electronic, and some of 

it could be hard copy. But how long would it take you to actually give 

me the main evidence in your case?

MR. FRIEDMAN: Probably about a week or so.

THE COURT: Do you not have this now? This is the reason I set the 

trial out, and I set multiple statuses on trial preparation. How do you 

not have your exhibits?

MR. FRIEDMAN: I’m preparing. Your Honor, I’m preparing them, 

okay? I'm one person. I’m doing – they’re filing motion after motion 

after motion. I’m responding to them. I’m getting – I’m working very 

diligently pretty much round the clock on this case. We prepared the 

spreadsheets. We’re going to prepare the summaries, and then I would 

imagine that your Honor wanted to continue this hearing as well to get 

other experts before the Court, and I would think that we would have 

that before then, but –

THE COURT: Well, here’s another deadline. One of the deadlines as 

part of the pretrial conference − which is Monday, right?

MR. STERN: Yes, your Honor.

THE COURT: Which is not a week from now. And you have to 

exchange your exhibits.

MR. FRIEDMAN: Yes.

18
THE COURT: So you’re telling me that your main exhibit in the entire 

case, you’re not going to have for a week, which would put it multiple 

days past the pretrial conference, which at that point would be 

excluded. If you can’t exchange the exhibits in time for the pretrial 

conference, your exhibit’s gone because you failed a deadline. So I 

mean –

MR. FRIEDMAN: It sounds to me like you’re telling me I have to have 

it on Monday, so I guess I'll have it on Monday.

THE COURT: Well, Counsel, this is not a question of – I’m bending 

over backwards to give you your day in court, I really am. And I don’t 

mean to be short with you. I don’t. But there’s a reason there’s 

deadlines, and I have to be fair to the other side, too. And it’s not fair 

to them to have the lead exhibit in the case handed to them while 

they’re picking a jury. That’s not fair to them.

MR. FRIEDMAN: Well, the summary is just going to be a subset of the 

spreadsheet.

THE COURT: A summary is everything because you're not going to 

publish or inquire on the stand about 20,000 pages. You have to get the 

admissibility of that because a summary won’t come in without it. But 

that spreadsheet or the derivative samples or summaries or however 

you want to call it, they’re entitled to get that because that’s the 

exhibit that’s actually going to be published.

MR. FRIEDMAN: Okay.

THE COURT: Right?

MR. FRIEDMAN: Right.

THE COURT: Right?

MR. FRIEDMAN: Sure.

THE COURT: Okay. I’m not moving the trial date, okay? All right. So 

you’re going to have to exchange it and get it to me and the other side 

by the pretrial conference.

MR. FRIEDMAN: Okay.

19
THE COURT: Which is − and that’s a deadline that was set a long 

time ago [on February 11, 2016]. So if you’re not able to do that – and

even with the certification I asked for and some other pleadings, even 

as of last week and the week before, there was one version and then 

there was another version and a corrected version. I’m really trying to 

give you your day in court. And I − I really am, okay?

MR. FRIEDMAN: I appreciate that.

THE COURT: I really am. But I have to be fair to them, too. And 

allowing you to not make the deadlines is just not fair to them.

MR. FRIEDMAN: I will prepare the summary spreadsheet and get it 

to them by Monday.

THE COURT: No. The order is comply with the order setting the 

pretrial conference. That’s what the order is.

MR. FRIEDMAN: Okay.

THE COURT: So this is nothing new or special.

MR. FRIEDMAN: They have all my exhibits except for the summary 

exhibits.

THE COURT: Well, any exhibit you don’t give them, consistent with 

my order for the pretrial conference, is not going to be timely.

MR. FRIEDMAN: Understood.

THE COURT: All right. Now, I want you to bring on Monday − because 

you will as part of it − all the exhibits that you intend to admit in this 

area, whether they’re summary samples, underlying exhibits. And if 

it’s the digital stuff, then I want it on a flash drive. Because it’s really 

important that the ball [will] not move anymore −

MR. FRIEDMAN: Okay.

THE COURT: − with respect to that. And that will at least give 

counsel, as of the date of the pretrial conference, an idea to articulate 

objections.

MR. FRIEDMAN: Okay.

20
THE COURT: Because this is one of the reasons there’s prejudice to 

them. . . . One of the prejudices to them is to the degree the exhibit’s 

changing or opinions or portions of expert opinions are changing, that’s

prejudicial to them because it’s outside of discovery. And they would 

have done different things, whether it’s a Rule 26 disclosure or 

questions they would have asked to an expert in a deposition or 

rebuttal experts. And moving the ball late in the game is devastating 

to the defendants and unfair because you’re correct when you call it a 

standard of care. This is like a medical malpractice case. And you need 

to have an expert to explain the standard of care because the jury 

doesn’t know what best execution is. But you need both the factual 

predicate and the expert opinion. So you can’t change the ball on them 

and expect them to be able to have a chance to defend them[selves]. So 

I’m trying to give you your day in court. I’m trying to give them their 

day in court.

MR. FRIEDMAN: We’re not changing the ball, your Honor.

THE COURT: Well, that remains to be seen. We’ll find out. I hope 

what you’re saying is correct. I really do. So I want copies for the Court 

of whatever the exhibits are, plural. I also want to know the names of 

the witnesses who are not available today but that you intend to call to 

support the admissibility under all of the rules of evidence, not just 

403 or relevance, but every single rule of evidence. Because I’m going 

to expect objections on multiple grounds. All of the witnesses that you 

intend to call. Can you put on a record right now − I know what you’ve 

put in your pleadings, but I want to get it on the record. Can you name 

I believe it’s four witnesses total.

MR. FRIEDMAN: Yes.

THE COURT: Can you put their names on the record.

MR. FRIEDMAN: Yes. Paul Picchietti, Robert Lowry, Dr. Roy 

Freedman and Robert DeMeritt.

THE COURT: All right. And you have here today which one?

MR. FRIEDMAN: Mr. DeMeritt.

THE COURT: Okay. When are the other three available?

21
MR. FRIEDMAN: Mr. Lowry is the one who is the most busy, and he 

would be available the week of the 7th, if we could do it that time. He’d 

like that Wednesday, which I guess is what, the 9th?

THE COURT: All right. What about the availability of the other ones?

MR. FRIEDMAN: I have to coordinate with them. I just found out this 

morning that Mr. Lowry was available on the 9th.

THE COURT: All right. Obviously since I set the trial on the 14th, all 

of the witnesses will be available on the 14th, correct?

MR. FRIEDMAN: Yes.

THE COURT: All right. We are going to pick the jury on the 15th, and 

we’re going to have the evidentiary hearing on the 14th. Well, actually 

we’re going to complete the evidentiary hearing. We’re going to take as 

much testimony as we can today.

Id., pp. 8-9, 11-19. 

With that, Plaintiffs called to the stand Robert DeMeritt, a partner at Last 

Atlantis Capital who has served as records custodian for the Plaintiffs in this case. 

Plaintiffs indicated that they planned to use DeMeritt to lay a foundation for the 

spreadsheets of what they referred to as “traded ahead orders” – that is, orders 

where Defendants traded their own interests over Plaintiffs’. For purposes of the 

evidentiary hearing, those spreadsheets were marked as Exhibits 1, 2, and 3, with 

Exhibit 1 relating to traded ahead orders placed with the Philadelphia Stock 

Exchange (PHLX), Exhibit 2 relating to traded ahead orders placed with the 

Chicago Board Options Exchange (CBOE), and Exhibit 3 relating to traded ahead 

orders placed with the American Stock Exchange (AMEX).

With regard to the first spreadsheet, identified for purposes of the 

evidentiary hearing as Exhibit 1, DeMeritt testified that he received “a list of orders 

22
that were traded ahead at the PHLX by Susquehanna that I believe it came from an 

exchange surveillance. And I matched up our orders with that and that produced 

the spreadsheet.” Transcript of Proceedings of 10/27/16 [1610], p. 27. DeMeritt 

testified that he received the initial list of orders from Plaintiffs’ counsel and that 

counsel told him the information “came from the SEC investigation.” Id., p. 31. 

DeMeritt testified that he then wrote an algorithm to extract, from that broader list 

of orders, orders that were placed by Plaintiffs. Id., p. 33. When creating Exhibit 1, 

DeMeritt testified, he manually entered certain columns and information that was 

not produced by the algorithm using Last Atlantis’ records in addition to whatever 

data was available from the PHLX data. Id., pp. 35-36. He testified that he used 

information from Last Atlantis’ own trading platform. Id., p. 36. DeMeritt then 

made the following point in response to questions from the Court: 

THE COURT: I’m trying to figure out what the basis − underlying 

basis of the entries are in Plaintiffs’ Exhibit 1 for the evidentiary 

hearing. And you’re saying you looked at your own records, and I’m 

trying to figure out exactly what that is. When you say your own 

records, what are you referring to? Because you’re matching that. 

You’re not just pulling information and creating a spreadsheet based 

on the trade data. You’re using additional sources, correct?

THE WITNESS: Correct. Our FIX [Financial Information Exchange]

engine created logs, and that’s where this data is coming from, from 

our FIX engine logs.

Id., p. 38. 

DeMeritt then confirmed that the data he used to match orders came from 

Last Atlantis’ own internal dataset. Id., p. 42. Counsel did not seek to introduce 

that dataset (or any other underlying dataset) at the hearing, and it became clear 

23
that DeMeritt could not even identify what some of the information on Exhibit 1 

was. For example, when asked what the symbol C meant in Column AO on Exhibit 

1, he testified, “that’s not my data . . . I do not know that.” Id., p. 60. 

DeMeritt similarly testified that he created the spreadsheets marked as 

Exhibits 2 and 3. When asked about the particular underlying data sets he used to 

create the exhibit spreadsheets, he testified: 

THE WITNESS: For the plaintiffs’ data, there are three types of data.

There was Last Atlantis data which came from Last Atlantis FIX logs. 

There was Speed. There was order tracking data from their order 

engine, whatever they called that.

THE COURT: Do you have any knowledge of what kind of order engine

they have?

THE WITNESS: It was something −

THE COURT: Do you know? I'm not asking you to guess. That’s why

we’re having this hearing, not guessing.

THE WITNESS: No, I do not. . . . The other three plaintiffs, River 

North, Brad Martin and Bryan Rule that came − that order tracking

data came from their broker which was REDI.

THE COURT: You’re familiar with that system that those plaintiffs 

used or not? It’s okay. If you don’t, that’s okay. I just want to know 

what you know.

THE WITNESS: I’m familiar with the trading application, the REDI 

trading platform that would have created that data. Where they pulled 

the data from, I don’t know.

THE COURT: Okay. And then what else? What other types of data?

THE WITNESS: That was the plaintiffs’ data.

THE COURT: Okay. Let’s go into the other areas with respect to the 

SEC, et cetera, et cetera.

24
BY MR. FRIEDMAN: That COATS [Consolidated Options Audit Trail 

System] data from the SEC, what was that − what was that 

specifically?

A: COATS data from the SEC.

Q: Yes.

A: There was an analysis done by Mayhew and somebody else, and

they had roughly three weeks of consolidated audit trail data from the 

three exchanges, the AMEX, the Philly and the CBOE. 

Q: And that was produced to you from the SEC; is that correct?

A: That was produced from the SEC to me, yes.

Q: Okay.

THE COURT: That was produced to you from the SEC. Do you have 

any knowledge how they produced that information, what process they 

used or where it came from, what the source data was?

THE WITNESS: I do have some knowledge. I’ve read − read some of 

the – I’ve read the information on how it was created I guess would be 

the way to say it, but I don’t know the specifics.

THE COURT: You don’t know the answer − you read somewhere that 

you think you know?

THE WITNESS: That is correct.

Id., pp. 87-90 (emphasis added). 

Similarly, it became clear that DeMeritt did not know how the underlying 

data from the SEC was actually created or the sources it came from. 

THE COURT: When you say “that data,” what is that data, where does 

it come from, how is it compiled? How do you know any of that?

THE WITNESS: The data was − came from the SEC. It was created for 

the SEC by the exchanges.

THE COURT: How do you know that?

25
THE WITNESS: I’ve seen documentation that states that.

THE COURT: What documents did you review to understand where 

and how that information is what it reports to be?

THE WITNESS: It was an SEC report that came with − that came 

with the data.

THE COURT: You saw a report?

THE WITNESS: Yes.

THE COURT: Okay. And it was a report from who to whom? What 

kind of report are you talking about?

THE WITNESS: I − it was ...

THE COURT: If you know. I don’t want you to guess.

THE WITNESS: I don’t know.

Id., pp. 91-92. Further, with regard to the SEC data: 

Q: Okay. So what specifically − how was it created? Who created it?

A: The exchanges created it for the SEC, for the SEC investigation.

Q: Okay. And what did − how did they create? What data did they use?

A: Pardon me?

Q: What data did they use to create that spreadsheet? What data did 

they use to create that spreadsheet?

A: They used their orders data from the exchanges.

Q: Okay. And what is it that they were trying to show in those 

spreadsheets? What was being portrayed in the spreadsheets that you 

were matching it to?

A: They were demonstrating orders that the specialist had in the book 

that they traded ahead on a new customer order that would have −

that would have taken the one out of the book.

26
* * *

THE COURT: You don’t have personal knowledge about what they [the 

SEC] were thinking and how they were responding. You’re just doing 

that based on what you read in a transcript?

THE WITNESS: Correct.

Id., pp. 96-97 (emphasis added). Similarly, 

BY MR. FRIEDMAN: Do you know how the three exchanges, where 

their data came from and how they prepared it?

A: Their data came from their orders systems.

Q: Okay. And how did they extract that data?

A: By an algorithm that they worked out with the SEC.

Q: Okay.

THE COURT: How do you know any of that?

THE WITNESS: I believe I read it − I read it in a document. I’m not 

sure which one.

Id., pp. 110-11. 

DeMeritt also testified that he did not know what parameters the CBOE used 

to generate any of the underlying spreadsheets, and he did not know what criteria 

the SEC used to generate any list of orders, id., p. 128; nor did he know whether the 

SEC modified or edited any of the spreadsheets it may have received from the 

Exchanges. Id., p. 141. He did not know what the SEC did with the data it received 

from the Exchanges. Id., p. 141. DeMeritt further testified that he did not know 

how the documents reflecting the underlying data from the exchanges’ files were 

actually generated. Id., p. 165. DeMeritt testified that, in creating his own 

27
spreadsheets, he did not look to determine whether another order met all the same 

specifications as the order Plaintiffs submitted. Id., p. 146. Incredibly, DeMeritt 

conceded that it was possible that portions of the orders Plaintiffs have 

characterized as their orders may not even be Plaintiffs’ orders. Id., p. 146.

DeMeritt also testified that the length of time it takes an order to get from 

Last Atlantis to the exchange varies over the course of the day, depending on the 

type of order, how busy the market is at the time, and “a lot” of other “variables.” 

Id., pp. 160-161. Thus, DeMeritt conceded, assessing best execution using just one 

time window, without regard to market conditions, could result in a misleading

exhibit. Id., p. 161. 

After Plaintiffs’ counsel indicated that he was done for the day, Defendants 

asked the Court to resume the hearing the next day, rather than waiting until the 

day trial was set to begin. Defendants argued that waiting until November 14th

would require Defendants to prepare for trial without the benefit of any rulings 

from the Court. Though not unsympathetic to Defendants’ predicament, the Court 

declined their request:

[A]s I indicated at the beginning of the hearing, there’s been a systemic 

failure of the plaintiff to meet routine court deadlines and an inability 

to answer a straight question or give a straight answer to a simple 

question, but that is what it is. He’s entitled to his day in court, and 

I’m going to give it to him. . . . [R]ight now we don’t know what his 

evidence is because some of it, we don’t know whether it’s coming in or 

not, which is why I need to do that before I finish out what you want.

There’s been multiple opportunities for parties to file summary 

judgment, and most of that happened before I got on the case. Right 

now, we’re at the eve of trial and a pretrial conference. So that’s how 

we’re going to handle it.

28
Id., p. 247.

Accordingly, the Court held the final pretrial conference, as scheduled, on 

October 31, 2016. At that time, Plaintiffs’ counsel initially failed to appear, then 

appeared another 20 minutes late after being given a 90-minute continuance, and 

arrived still without all of his trial exhibits. See Transcript of Proceedings of 

10/21/16 [1613], pp. 3-4. After another delay, counsel was able to promise the Court 

that the exhibits would be ready by the end of the day. Id., pp. 4-6. Thus, even by 

the final pretrial conference, the Court had yet to see a complete list of Plaintiffs’ 

trial exhibits. What’s more, during the conference, it became clear that Plaintiffs 

had again changed the spreadsheet exhibits from the time they were marked as 

final at the evidentiary hearing as Exhibits 1, 2, and 3. 

THE COURT: Now, with respect to Exhibits 1, 2 and 3, it’s your

position that that’s not the same thing. Well, there’s a version − let me 

ask the defense first, and then I’ll give you an opportunity to respond.

There’s a difference between the − an initial, I think, version of these 

spreadsheets that was earlier in the litigation. I’ll call that version 1. 

And then there was another version in response to the partial 

summary judgment motion, and I believe it was described in the 2009 

affidavit. I’ll call that version 2. And then there was one with changed

parameters October of this year. Is that fair to say?

MR. STERN: Yes. Here, I’ll −

MS. WHEELER: Yeah. I mean, there were two sets of changed 

parameters in October. If you think of it as − I tend to think of it as the 

traded ahead, the filled after cancels and the unexecuted orders. The 

traded aheads were changed with the summary judgment motion.

THE COURT: And that was the same that was described in the 2009

affidavit or subsequent?

MS. WHEELER: Oh, they’re entirely different than what was in the 

2009 affidavit. It’s a completely different set.

29
THE COURT: Okay. And what was in the 2009 affidavit is one version, 

and that was totally changed for response to summary judgment 

motion. Is that fair to say?

MS. WHEELER: There was a set of orders produced in 2009 in 

response to an order from Magistrate Keys. Those were found to be 

inadequate. A second set was produced in 2012. That’s what reopened 

discovery. And then –

THE COURT: And that was used in the litigation on the partial 

summary judgment motion, that version, version 2?

MS. WHEELER: No, no.

THE COURT: Which version was used for that?

MS. WHEELER: Well, so then there was a third version when they 

produced their expert reports in I think June of 2014. And then when 

they filed their motion for summary judgment, a − what are we at −

fourth version was produced with a different damages methodology.

THE COURT: And then after the fourth version was the fifth version 

which changed parameters in October of this year?

MS. WHEELER: Right. That changed parameters to the filled after 

canceled orders and the unexecuted orders. And those were all changed 

in those series, too.

THE COURT: And what we have is Exhibits 1, 2 and 3 from the

hearing. That’s the most up-to-date version, right, the October version?

MS. WHEELER: As far as we know. We got some spreadsheets around 

1:30 in the morning last night from Mr. DeMeritt. I assume they’re the 

same, but I haven’t had an opportunity to compare.

THE COURT: Have the exhibits changed since the hearing, Exhibits 1, 

2 and 3?

MR. FRIEDMAN: No, your Honor.

THE COURT: So what you got − you sent something to them last 

night?

30
MR. FRIEDMAN: Just copies of the various spreadsheets. That's all.

THE COURT: And that’s the same thing that I have, that I wrote down 

as 1, 2 and 3?

MR. FRIEDMAN: It’s a more demonstrative, nicer version of it with, 

you know –

THE COURT: So it’s changed? It’s changed?

MR. FRIEDMAN: The orders haven’t changed. The orders that are in 

the spreadsheets are the same.

THE COURT: That’s not my question, Counsel. My question is I 

marked and wrote down Exhibit 1, 2 and 3. Is that the same exhibit as 

what you intend to use at trial and what you gave co-counsel last 

night?

MR. FRIEDMAN: No. We gave those to co-counsel a little while ago.

What we gave co-counsel last night was an updated version of the 

spreadsheets that were used in the summary judgment motion.

THE COURT: Do you have copies of that for me?

MR. FRIEDMAN: Yes.

THE COURT: Can I have them now, please?

MR. FRIEDMAN: They’re on a hard drive.

THE COURT: All right. Well, I’ll take what you have. It’s totally

inappropriate based on what happened at the hearing, but at this point 

I’m trying to bring conclusion to what your evidence is supposed to be. 

So go ahead and hand whatever you got to my clerk.

MR. FRIEDMAN: I was going to update this when we get the other 

stuff back from Kinko’s.

THE COURT: I’m sorry, are you going to change this again?

MR. FRIEDMAN: No, I was just going to put all – put it all together 

because there might be some stuff on there that I would take off but...

31
THE COURT: All right. I’ll give it back to you. So you’re going to 

commit to the fact that Exhibits 1, 2 and 3, which we already had an 

evidentiary hearing on, were already admitted for the purposes of the 

evidence, that evidentiary hearing, by the way, you’re going to commit 

and hand me like today your version of the Exhibits 1, 2 and 3, 

whatever the most up-to-date version is, correct?

MR. FRIEDMAN: Yes.

THE COURT: That’s the version you seek to admit at trial, right?

MR. FRIEDMAN: Well, they’re the same – it’s the same orders 

underlying. It’s just ones –

THE COURT: That’s not my question. Please.

MR. FRIEDMAN: Okay.

THE COURT: I’m talking about an exhibit, not your underlying data 

because that’s where you keep moving the ball. I want to know what 

exhibit you intend to admit into evidence. If that’s not clear, I don’t 

know how to make that clearer.

MR. FRIEDMAN: Okay.

THE COURT: Will you give me a final version of your exhibit, yes or 

no?

MR. FRIEDMAN: Yes.

THE COURT: There will be no changes to the exhibit. You won’t 

change the font. You won’t change the borders. You won’t change 

anything. I need your exhibit in its final form.

MR. FRIEDMAN: Yes.

THE COURT: Are you able to do that?

MR. FRIEDMAN: Yes.

THE COURT: All right. Now, question. When I get that, that 

aspirational exhibit, what version is that? Is that the most up-to-date 

version –

32
MR. FRIEDMAN: Yes.

THE COURT: − with the parameters from October of this year?

MR. FRIEDMAN: Yes.

THE COURT: Okay.

Transcript of Final Pretrial Conference [1613], pp. 36-41.

Despite not having Plaintiffs’ actual exhibits, the Court attempted to move 

forward with the final pretrial conference to the degree possible. With regard to the 

parties’ motions in limine, after Plaintiffs withdrew their motion in limine number 

1, the Court denied it as moot. The Court took under advisement Plaintiffs’ motion 

in limine number 2 (which sought to exclude the testimony of Dr. Stewart Mayhew 

concerning certain Exchange rules and the calculation of damages), and Defendants’ 

motion in limine number 1 (which sought to bar the spreadsheets of relevant orders 

and would be resolved at the close of the evidentiary hearing scheduled to resume 

on November 14th). The Court also took under advisement Defendants’ motion in 

limine number 2 (which sought to bar Plaintiffs’ expert Robert Lowry from 

testifying). Although the Court declined to rule at the time, it noted that Lowry’s 

opinion was based upon prior outdated versions of the spreadsheets and had 

nothing to do with the actual exhibits for trial, i.e., Exhibits 1, 2 and 3, or the later 

versions prepared in the days between the evidentiary hearing on October 27th and 

the final pretrial conference on October 31st. 

THE COURT: Mr. Lowry’s opinion is based on the spreadsheets that 

he looked at the time, correct?

MR. FRIEDMAN: Some of it is, yes.

33
THE COURT: Well, expert discovery’s closed. You’re not going to be 

able to change his opinion. So when did he issue his report?

MR. FRIEDMAN: June of 2014, I believe it is.

THE COURT: Is that your understanding?

MS. WHEELER: Yes, your Honor.

THE COURT: Okay. So his opinion is based on the spreadsheets that 

were submitted to him June of 2014. Is that fair to say?

MR. FRIEDMAN: Yes.

Transcript of Final Pretrial Conference [1613], p. 72. 

Defendants’ third, fourth, fifth and sixth motions in limine were also taken 

under advisement (seeking, respectively, to bar evidence about regulatory 

settlements; to bar use of a draft non-public AMEX report; to preclude certain 

opinion testimony of Plaintiffs’ damages expert; and to bar reinstatement of 

Plaintiffs’ breach of contract claim). The Court granted as agreed Defendants’ 

seventh motion in limine (which sought to bar evidence of orders submitted to the 

Pacific Stock Exchange or to the CBOE in 2006 or thereafter).

At the close of the final pretrial conference, the Court instructed the parties 

as follows: 

THE COURT: All right. I indicated this before, but let me make it 

really clear. All parties must submit any and all exhibits including 

demonstrative or summary by 4:00 p.m. today, and there will be no 

supplements or alterations to the exhibits. If it needs to be a hard copy 

or a flash drive, that’s up to you. But it’s got to be at chambers at 4:00 

p.m., not 4:01. If it’s 4:01, it’s excluded at trial.

MR. FRIEDMAN: Your Honor, I was just going to ask could we have 

till 5:00? Because I have to go to Kinko’s and get the rest of the stuff.

34
THE COURT: All right. I’ll give you till 5:00.

MR. FRIEDMAN: Thank you.

THE COURT: Another continuance, there you go. All right. And that 

goes for both sides. 5:00 p.m. today, get it to me. So I know you guys 

had some demonstrative exhibits and some other ones. So to the degree 

you have exhibits that are different than pretrial order, just go ahead 

and put everything on your flash drive, whatever you're going to send. 

If it's an exhibit you want to use at trial, put it on the flash drive,

okay?

MS. WHEELER: So you’re talking all exhibits –

THE COURT: Everything.

MS. WHEELER: − including the ones that we’ve provided hard copies 

of?

THE COURT: Yes, everything. If you’ve got it – if it’s this, you can 

make reference to it, say if it’s the actual exhibit as opposed to some 

version of it. I want to have a closed universe of what’s going to be an 

exhibit, whether it’s a regular exhibit or demonstrative exhibit or 

summary exhibit. Whatever it is, I got to have a closed universe. And I 

want it on both sides. And it’s mainly because the exhibits keep 

changing, and it’s creating issues in terms of people being able to 

articulate objections to things. . . . The binders you submitted are part

of your universe. Don’t worry about resubmitting any of those binders 

that you’ve just put on the record. That’s part of it. And just what 

you’ve articulated is fine. If you could submit the additions to what I’ll 

call the post-binder exhibits, go ahead and do that, and then that will 

be in compliance with what my request was. And then counsel’s going 

to − I have one binder, Counsel, from you. It says plaintiffs’ trial 

exhibits and it’s written in hand 121-199.

MR. FRIEDMAN: That was just the one we filed recently, but there 

were other ones with the pretrial order.

THE COURT: So I’m going to assume I have – anything I’ve gotten 

from you is a prior draft, and you’re going to give me a flash drive or a 

hard copy of everything by 5:00 p.m. today, right?

MR. FRIEDMAN: Okay. Can I have those back then?

35
THE COURT: Yes, you can have this back.

MR. FRIEDMAN: So I can see what’s what?

THE COURT: Yeah, go ahead.

MR. FRIEDMAN: There was another couple binders as well.

THE COURT: No, there’s only one. But it doesn’t matter because what 

you’re going to do is resubmit everything. Because right now I have no 

idea what your exhibits are. So, Counsel, please listen to me. By close 

of business today 5:00 p.m., you will submit a hard copy or a flash copy 

of each and every exhibit you intend to admit, whether you’ve given it 

to me before. And do not incorporate by reference anything else you’ve 

submitted. It must be the actual hard copy or the flash drive of

everything you want as an exhibit. Anything you don’t submit will be 

summarily excluded from evidence, okay?

MR. FRIEDMAN: That’s fine.

THE COURT: All right. Yes.

MR. RETTBERG: Your Honor, will we be provided a copy of anything 

that he submits to the Court?

THE COURT: You need to also provide a copy of whatever you 

provided the Court to opposing counsel, all right, so he knows the 

universe it is, to the degree it’s changed from anything you’ve given 

him before.

Id., p. 142-146. Despite this clear admonition, Plaintiffs failed to provide copies of 

all exhibits to Defendants. See [1614]. And some of the exhibits provided to the 

Court were not marked, making it difficult, even at this late juncture, to pin down 

exactly what exhibits Plaintiff planned to use at trial. 

On November 14, 2016, this Court reconvened the evidentiary hearing. At 

that time, Plaintiffs’ counsel indicated that he would offer the testimony of Robert 

Lowry and Roy Freedman, as well as additional testimony from Robert DeMeritt. 

36
Transcript of Proceedings of 11/14/16 [1624], pp. 261-62. Although counsel 

previously indicated that he also wanted to call Paul Picchietti as a witness, [1610], 

p. 19, he later chose not to do so at the hearing. 

Before calling Lowry to the stand, Plaintiffs’ counsel suggested that he would 

lay the foundation for the underlying spreadsheets as public records. Counsel 

showed Lowry exhibits marked as 11A, 11B, and 11C; Lowry initially testified that 

these spreadsheets constituted “data that was produced in a proceeding, an 

investigation. And these were matched with – this is a subset of that data that only 

includes plaintiffs’ transactions.” Transcript of Proceedings of 11/14/16 [1624], p. 

274. Counsel then showed the witness Exhibit 12, which consisted of three separate 

spreadsheets; Lowry testified that these were “data that was provided to the SEC 

by the exchanges pursuant to an investigation.” Id. Ostensibly, these exhibits 

would constitute at least part of the datasets from which DeMeritt’s spreadsheets 

(Exhibits 1, 2 and 3) were derived, yet Lowry could not later lay a sufficient 

foundation for any of Plaintiffs’ exhibits. 

Lowry testified that any information he had concerning the spreadsheets 

DeMeritt created was based on what other people told him; he did not actually 

create or test any of the information or data in the spreadsheets, and he was not a 

participant when the spreadsheets were created or tested. Id., pp. 281-282. With 

regard to the underlying datasets, Lowry similarly had no personal knowledge. He 

testified that Exhibit 14 was “a report that was part of a – was provided to the SEC 

37
as part of a review of Susquehanna transactions and – starting in January 2003 and 

going through the end of the year.” Id., at 292. 

Q: Are these orders at a particular exchange?

A: Yes, sir. They’re at the PHLX, Philadelphia Stock Exchange.

Q: Okay. And do you know whether they were prepared by members of

the regulation staff at the Philadelphia Stock Exchange?

A: I can't − I don’t know who provided it, but it would be under the 

normal course of business when the SEC would ask for documents that 

the Philadelphia Stock Exchange would provide the documents to the 

SEC.

THE COURT: But you don’t have personal knowledge, correct?

THE WITNESS: No, not for this particular document.

THE COURT: All right. Thank you.

BY MR. FRIEDMAN: And do you know whether this spreadsheet, 

though, was produced in the litigation?

* * *

A: Yes, it was produced.

Q: Okay. And do you know whether it was produced pursuant to a 

request or a Court order?

THE COURT: Do you have any personal knowledge of how it was 

produced in the litigation or did someone tell you?

THE WITNESS: Other than somebody told me.

THE COURT: Okay. Someone told you. Ask your next question.

Id. at 292-93 (emphasis added).

On cross examination, Lowry further admitted that he did not actually know 

how the SEC prepared the schedule of orders relating to Susquehanna. Id., p. 298. 

38
Nor did he know how the exchanges prepared the data they provided to the SEC in 

connection with the traded ahead investigation. Id. at 299. He testified that he was 

told how the information was screened and conceded that he did not even look at 

underlying data – meaning the information that was in the spreadsheets. Id., p. 

301. Lowry also admitted he had no idea how Exhibit 12 was prepared; he testified 

that it was his understanding that Exhibit 12 constituted data from the SEC, but he 

did not believe it was an SEC document. Id., p. 309. Lowry specifically testified 

that he did not know how Exhibit 15 was prepared, and conceded that he never 

reviewed any of the data underlying Exhibit 15. Id., p. 311. Similarly, Lowry 

testified that he did not create Exhibit 14 and did not know how it was created. Id.

at 312. Lowry testified that he “understood” Exhibits 11, 12, 13 and 14 to be 

summary exhibits that were created from some underlying data somewhere else; 

that Exhibit 15 was not a summary but was the underlying data in an excel format; 

and that he thought Exhibit 15 constituted exchange data because that is what 

DeMeritt told him. Id., pp. 215-16. Lowry further testified that he could not attest 

to the accuracy of Exhibits 11, 12, 14 or 15. Id., p. 318. 

When discussing how Plaintiffs created their exhibits, Lowry testified “I 

know they used − I know they relied on the OPRA [Options Price Reporting 

Authority] data. They did use the exchange data to validate or verify their − their 

methodology, but they did not use it as the primary source.” Id., p. 321-22. The 

Court followed up on the issue:

THE COURT: And when you say you know, that’s what they told you? 

You think they used OPRA or specific pieces of audit trail data based 

39
on what someone told you that they relied on. You didn’t look at the 

underlying OPRA or audit trail data, did you, in its raw form?

THE WITNESS: That would be the only way that – OPRA would be 

the only way you could tell whether there was −

THE COURT: My question to you, did you look at the raw OPRA 

and/or audit trail data, yes or no?

THE WITNESS: No.

THE COURT: Okay. Ask your next question.

Id. at 322. 

Plaintiffs’ counsel then called Roy Freedman to the stand, explaining that, 

although Freedman was designated as a rebuttal expert for trial, Plaintiffs planned 

to call him at the evidentiary hearing “to essentially authenticate the underlying −

the underlying data that was used in terms of the way we identified the orders and 

his familiarity with the orders, his knowledge of the manner that they’re kept, the 

use of the orders, the use of the orders data, how it’s maintained, the OPRA data, 

that sort of thing.” Id at 381. Given the purpose of the evidentiary hearing, this

Court sought to clarify counsel’s proffer:

THE COURT: So at a trial, for example tomorrow, you would not be 

calling him as a rebuttal expert, but as a witness that would lay the 

foundation for the critical orders?

MR. FRIEDMAN: He would also be testifying later on as a rebuttal 

expert to their challenges to the methodology that were used.

THE COURT: That wasn’t my question. Listen to my question. Answer 

my question. Would he or would he not be the evidentiary basis for the 

foundation for the admissibility of Plaintiffs’ Exhibit 1 through 15? 

Because I understand there’s a whole host of exhibits that you’ve 

proposed as trial exhibits, but I’ve identified an issue with the case and 

have asked you to present for the purposes of this hearing the 

40
necessary information regarding the foundation for the orders, which 

is the predicate for the entire case. And you’ve already rightfully so 

acknowledged previously in front of the Court that in the absence of 

the exhibits that are the subject of this hearing that there is no case as 

to any of those claims that have been brought in the complaint. The 

entire case depends on the admissibility of the exhibits that have been 

identified and will be identified in this evidentiary hearing. So −

MR. FRIEDMAN: We’ve also −

THE COURT: I'm asking you, is this person − for the purposes of trial, 

do you anticipate this person laying the foundation, the necessary 

foundation for any of the exhibits that are the subject of this hearing, 

or is he simply a rebuttal expert, which is a different issue? It might be 

a very important issue, but it’s not the same issue.

MR. FRIEDMAN: No, he will be involved in the foundation as well.

* * *

THE COURT: Does he have any non-expert testimony to give, or is it 

all 702?

MR. FRIEDMAN: Well, his personal experience with the knowledge of 

the data, working with the data.

THE COURT: He has personal knowledge and can lay the foundation 

for the exhibits not as a 702 witness?

MR. FRIEDMAN: Yeah. He understands how – he understands how 

the data was created, the systems – he’s a qualified person to testify 

with respect to how the exchanges recorded their data −

THE COURT: Let me ask the question again. Is he going to give lay 

testimony − not expert testimony, lay testimony − regarding facts of 

personal knowledge and lay opinions appropriately admitted under 

701 as to the exhibits that you intend to admit in this hearing, yes or 

no?

MR. FRIEDMAN: I think it would be more expert testimony.

THE COURT: He’s going to give expert testimony.

41
MR. FRIEDMAN: Because he understands − he has the knowledge of 

how the exchanges record their data, how it’s − how it’s − and he works 

with the data.

THE COURT: Is he going to − so let me pin you down because it’s very 

difficult to do so, and it’s important that you talk with precision. Your 

proposal is that his testimony for the purposes of this hearing − which 

I’ve articulated ad nauseum what the purposes are here. Your proposal 

is that he’s not giving any opinion beyond 702 opinions. It’s all going to 

be expert testimony, correct? Yes or no?

MR. FRIEDMAN: Well, he works – it’s hard for me to say. He works 

with the data.

THE COURT: Counsel, it’s not difficult. Is he going to give only expert 

testimony or is he going to give fact testimony and expert testimony? 

That’s not a complicated question, and I want an answer to it.

MR. FRIEDMAN: Fact and expert testimony.

THE COURT: Okay. As to the expert testimony of his opinion, do you 

anticipate him going beyond anything that you’ve already disclosed? 

Because that wouldn’t be admissible at trial and would be irrelevant in 

this hearing. So if he’s going to give, as to the expert testimony,

something other than what[’s] . . . been previously disclosed, that 

wouldn’t be useful in the hearing. So what I don’t want is non-disclosed 

expert testimony that would be excludable at trial because then it 

would not really be relevant here, because it’s not anything you could 

use at trial. So if you want to give his 702 opinions, which would only 

be rebuttal, that also wouldn’t be useful here, or I’m happy to hear if 

you can proffer a basis why that would be useful. Or simply having 

him testify as to expert − or excuse me, fact testimony, that would be 

something different.

MR. FRIEDMAN: No, there will be expert, but it was disclosed in 

terms of defendants did, in fact – they petitioned the Court because he 

did wear two hats throughout the litigation. And so −

THE COURT: All right. Well, let me propose this then. Why don’t you 

do his fact testimony first and only his fact testimony, and then we can 

loop back and get in whatever 702 opinions you want to.

MR. FRIEDMAN: It’s kind of merged together, but okay.

42
* * *

THE COURT: I know, and that’s one of the reasons you’ve got 

difficulties with your evidentiary foundations because you’re not 

identifying the difference between what the appropriate testimony is to 

lay the appropriate foundations for things. But at this point all I want 

to hear is what his factual testimony is regarding any and all exhibits 

that you think are necessary for this evidentiary hearing. So when

we’re done with the fact part, you let me know, and then I’m happy to 

have you present whatever expert testimony you think is appropriate.

And if it’s disclosed or not disclosed, I’ll hear whatever arguments the 

other side has to say. But at this point let’s do the fact stuff first and 

then you can get into the other stuff. Okay. Go ahead.

MR. FRIEDMAN: I'll try to keep it to the facts, but like I said, it might 

be a little bit merged together.

THE COURT: Well, I won’t let it. Because for the purposes of an 

evidentiary hearing, it’s a lot like trial, you have to get an exhibit in 

before you can start publishing it to the jury. And if you’re going to 

have an expert opinion, it has to be disclosed. And you can’t get the 

admissibility of the exhibits with solely expert testimony. You need 

more than that for these exhibits. So you can – you’re professional 

enough to know the difference between a fact question and an expert

question. So you go ahead and do the fact ones first.

Id., pp. 331-36.

At the hearing, Dr. Freedman testified that he is employed by Inductive 

Solutions and serves as an adjunct professor in NYU’s department of finance and 

risk engineering; he testified that Plaintiffs retained him in this case “to help the 

plaintiff acquire different datasets, in particular order audit trail data from 

different options exchanges and try to advise on how some of the data would be 

analyzed consistent with surveillance, market surveillance methods.” Id., pp. 337-

38. Freedman testified that, in conjunction with his work on this case, he reviewed 

audit trail data, which he described as “an attempt to identify the who, the what,

43
the where, the when, the why and the how associated with a particular order that is 

sent to a financial exchange.” Id., p. 340. Concerning the relevant underlying data, 

Freedman testified as follows: 

Q: And what − can you just set for the Court the various forms of audit 

trail data that you reviewed, the types.

A: The various forms of audit trail data for this – for this −

Q: That you reviewed in conjunction with Mr. DeMeritt’'s preparation 

of the spreadsheets that we were referring −

A: Oh, okay. The forms of audit data would consist of actual orders 

maintained by exchanges, by exchange systems and archived in data 

warehouses as well as order audit trail data available by law from the 

consolidated order audit trail system. That’s COATS for short. . . . .

In addition to COATS, there were other − other files of orders that 

were sent by different exchanges.

Q: And in addition to the COATS data, was there − did you review any 

internal exchange orders audit trail data?

A: Yes, that’s what I meant.

Q: Okay. And from what exchanges did you look at that orders data?

A: The particular exchanges, Chicago CBOE, Philadelphia, Pacific and 

AMEX. 

Q: Okay. So you’re confident then that the data that you reviewed is, in 

fact, the audit trail data that was produced by the exchanges pursuant 

to the subpoenas?

A: Yes. 

Transcript of Proceedings of 11/14/16 [1624], pp. 340-42, 345. The “fact 

questioning” continued:

Q: And so is it your − having reviewed the data, would it be your 

opinion then that this was the data that is regularly generated by the 

exchanges?

44
A: Yes.

Q: Okay. And did you perform any specific tests or analyses on the 

methodology that − I think I might be veering into expert stuff now.

THE COURT: He hasn’t talked about a single exhibit. So do you have 

any fact testimony about any exhibit that plaintiff can mark as 

anywhere between Plaintiffs’ 1 through 15 or a different number?

MR. FRIEDMAN: Okay. I guess −

THE COURT: You talked generically about data, which is not useful 

either, because we're talking about the admission of exhibits.

MR. FRIEDMAN: Okay.

THE COURT: And you didn’t show or ask him any questions about 

exhibits. And whether or not he’s referring to data that’s reflected in 

the spreadsheet or in some raw computer printout is totally unclear 

and insufficient to lay the foundation for anything.

MR. FRIEDMAN: Okay.

THE COURT: So right now if you want to say you’re done with the fact 

testimony, I’m happy to go on to expert testimony, but that’s going to 

be your choice. What do you want to do?

MR. FRIEDMAN: Let’s go to the exhibits then. Let me show you the 

spreadsheet exhibits that we’ve produced in the litigation and ask you 

some factual questions with respect to that. So are those them over 

there?

THE COURT: You have the exhibit, Counsel. I have my exhibits.

BY MR. FRIEDMAN: I’m going to show you what's been previously 

marked I believe it’s 12A, B and C, which are the spreadsheet exhibits.

At the bottom it says 3A Susquehanna SIG-PHLX. Exhibit 3B, 

Susquehanna SIG-CBOE, and then the last one is at AMEX. (Exhibits 

tendered to the witness.) Did you review and take a look at the actual 

algorithms by which the plaintiffs matched their orders to the 

spreadsheets that were produced by the − by defendant Susquehanna 

with respect to the spreadsheets that were prepared by the PHLX, the

CBOE and the AMEX?

45
A: The plaintiffs’ algorithms?

Q: The algorithms that matched the orders.

A: Yeah, yes.

Q: Okay. And is it your understanding of − can you just explain for the 

Court your understanding of how the orders were matched?

A: Basically the way orders are matched is you look − you try to − you 

establish certain identifiers, certain field names in the database that 

would provide a unique identification for a particular order in two files. 

So since you – again, it’s matching the who, what, where and most 

crucially, the when the order was sent in.

Q: Okay. And did you perform any tests using the orders audit trail 

data to determine how long it was taking between the time that the –

in the plaintiffs’ records between the time that the orders were sent 

and the times that the orders were being received at the exchanges?

A: Yes, an analysis like that was done. 

Id., pp. 345-348. Despite this Court’s admonishment to make a specific inquiry 

regarding the foundation of the actual exhibits he intended to offer at trial, counsel 

tendered copies of exhibits to Freedman, but then failed to actually question him 

about the individual foundation for any marked exhibit.

Q: What’s your understanding of what’s being shown in these

spreadsheets? Take a look at them.

A: Again, it’s specialist – it’s a list of the specialist − specialist traded 

ahead priority-violated order. I’m just reading that − reading the 

headings.

Q: Okay. But are there categories that were taken from the plaintiffs’

audit trail data that were not in the spreadsheets that were produced 

by the exchanges?

A: Well, I guess there’s the impact, you know, some fields like that. 

46
* * *

Q: Have you reviewed the data that was produced by plaintiff, Last 

Atlantis?

A: Yes.

Q: Okay. And did you also review −

THE COURT: When you say “the data” −

MR. FRIEDMAN: The −

THE COURT: − you have to explain what that is and maybe show it to 

him, at least identify it for the record. Because it’s totally unclear 

whether that refers to a spreadsheet, a summary, raw data that’s 

produced from any party in this case or a non-party. And it’s utterly 

insufficient to lay the foundation for the necessary exhibits for your 

trial, which may or may not occur. So I don’t know how [much] clearer 

I can be. You need to ask a question that lays the foundation for the 

exhibits. And I've given you more than a day and a half now, and I’m 

waiting, still waiting.

Id., pp. 352-53. When counsel still failed to ask the necessary foundational 

questions, the Court attempted to facilitate the process:

Q: Did you review the spreadsheets that came from the defendant 

Susquehanna in litigation from the Philadelphia Stock Exchange, the 

AMEX and the CBOE?

THE COURT: All right. That was asked before, and again, you’re not 

showing him anything that he can identify –

MR. FRIEDMAN: Because they’re underlying data compilations. I 

don’t have it in front of me here, your Honor, but it’s summaries of a 

very large amount of data that came forward. And so we don't have a 

copy of it, but he’s reviewed it, and it was produced by the defendant 

and they have copies of it and it’s –

THE COURT: Well, I'm going to give you an opportunity to confer with 

opposing counsel, and if you guys can determine some manner in 

which we can properly identify whatever you’re referring to, then I’ll 

allow the question. But simply referring to “spreadsheet” is insufficient 

47
in light of what’s in front of me. So go ahead and I'll give you an 

opportunity to discuss with opposing counsel if there can be some − if 

there is − and I don't know that there is –

MR. FRIEDMAN: And I have a list −

THE COURT: − some agreement about what you’re referring to, that’s 

great. But asking a question about, hey, did you look at a spreadsheet, 

that’s a meaningless question, certainly as we are now in I believe 

hour nine or ten of the evidentiary hearing. Let me ask opposing 

counsel do you know what he’s referring to?

MR. STERN: No, I do not, your Honor.

THE COURT: Okay. I didn't think so. 

* * *

MR. FRIEDMAN: I have the list of it somewhere. I’ve just got to find it 

here.

[long break occurred while counsel searched his files in court]

THE COURT: The record should reflect counsel is going through his 

papers again. Counsel, do you want to finish the fact testimony as to 

anything else and then come back to this? Us sitting here watching you 

go through papers again is a waste of the Court’s time and opposing 

counsel’s time. The fact that you’re not prepared for the hearing is

telling, and I’m glad it's not happening in front of a jury of 14 people. 

Do you want to ask the rest of your factual Q&A –

MR. FRIEDMAN: Yes, your Honor.

THE COURT: − and then come back to this and then you can locate 

your exhibit? Go ahead.

MR. FRIEDMAN: I’ve actually located it.

THE COURT: Oh, great.

MR. FRIEDMAN: Okay. That’s not it, never mind.

THE COURT: Why don’t you ask whatever other areas of inquiry you 

have with respect to the factual testimony of this witness, and then 

48
we’ll loop back and we can address whatever additional questions you 

need in this area, unless you’re done with his factual questions and 

this is the last one.

MR. FRIEDMAN: I think I have just one more.

THE COURT: Are you ready to proceed, Counsel?

MR. FRIEDMAN: Yes, I am.

THE COURT: Okay. Please do. Ask a question.

BY MR. FRIEDMAN: And so when you reviewed the patents, okay, of 

the various exchanges’ order systems, order retrieval and execution

systems, okay, the data that was produced from those − those − in this 

litigation, did that − well, never mind. Actually I'm done with the fact 

questions.

THE COURT: Okay. Now, do you want to spend some time trying to 

find the exhibit you were looking for?

MR. FRIEDMAN: Yes, I would.

THE COURT: Go ahead. Start looking for it.

Id., pp. 362-65. Later, counsel then attempted to question the witness about 

Exhibit 17, which was a list of file names. Because Plaintiffs’ counsel failed to offer 

or otherwise explain the source of the underlying files, however, the Court sought to 

clarify the testimony: 

THE COURT: Do you have a specific recollection as to any of the data 

sources listed in Plaintiffs’ Exhibit 17?

THE WITNESS: I remember reviewing a lot of data, but again, 

particular file − file names, again it’s –

THE COURT: Okay. So as you sit here today, are you able to say that 

any of the particular files listed in Plaintiffs’ Exhibit 17 was something 

that you actually looked at and compared it to Plaintiffs’ Exhibit 12, 

yes or no?

49
MR. FRIEDMAN: So take a careful look at the –

THE COURT: I already posed the question, Counsel. My question is 

pending now, so be silent.

THE WITNESS: Table definitions for sure I would look at.

THE COURT: Okay. Anything other than that that you have a 

memory to say as you sit here under oath Plaintiffs’ Exhibit 17 has this 

particular database or this particular database that I actually looked 

at and compared to Plaintiffs’ Exhibit 12?

THE WITNESS: Yes.

THE COURT: Which ones?

THE WITNESS: Oh, no. I’m saying I looked at a sample of these. I 

mean, I may not have looked at every single spreadsheet.

THE COURT: Do you know which portions of the data that’s listed in 

17, Plaintiffs’ Exhibit 17 that you reviewed?

THE WITNESS: I don’t − I don’t recall the names of − the file names 

exactly.

THE COURT: All right. What do you recall?

THE WITNESS: As a part of any review, I recall looking at − looking 

at a sample.

THE COURT: Sample of what?

THE WITNESS: Looking at a sample of the − of files. Again, if I'm 

asked –

THE COURT: See, this is my question. I need to know what you looked 

at, and I don’t have any sense from what you’re telling me that you 

remember what you looked at and then compared to Plaintiffs’ Exhibit 

12. There’s a bunch of files listed on 17, but I need to know what you 

looked at. And if you don’t remember the file name, that’s fine. But I 

have no sense of what you looked at that’s listed or not listed in 17 and 

compared to Plaintiffs’ Exhibit 12. And if you don’t remember, that’s 

okay. I just need to know what you remember. Do you remember what 

you looked at and compared it to Plaintiffs’ Exhibit 12?

50
THE WITNESS: I’m getting confused with all the numbers here. It’s, 

again, some of these are compressed .ZIP files. I don’t remember the 

exact file names.

THE COURT: And I already addressed that. I don’t care if you 

remember exact file name. I want to know if you can tell me under 

oath what files you looked at to compare to Plaintiffs’ Exhibit 12.

THE WITNESS: I remember − I remember looking at files from − or 

data from the SEC investigations with the − with SIG.

THE COURT: All right. Do you have any other information to make 

that more specific, or is that the level of specificity that you have 

sitting here today?

THE WITNESS: I remember looking at the − looking at data and yeah 

and probably, yes.

THE COURT: All right. So the answer to the question is yes, that’s the 

level of specificity that you have in terms of what you looked at, right?

THE WITNESS: At this point, yeah.

THE COURT: Okay. 

Id., pp. 372-75.

Following Dr. Freedman, Plaintiffs’ counsel recalled Robert DeMeritt to the 

stand. This time, DeMeritt testified that he received certain data directly from the 

CBOE’s counsel, id., p. 410, and personally received certain data from the PHLX. 

Id., pp. 413, 451. He also testified that certain SEC data was produced pursuant to 

court order. Id., p. 421. On cross-examination, however, he testified that he had no 

idea how the data was compiled or generated, except that he had read some 

“document” supposedly explaining the reasoning behind such compilations. 

51
DeMeritt also admitted that he had no idea whether the unidentified document was 

actually generated in connection with the specific data at issue. Id., pp. 459-460.

With that, Plaintiffs’ counsel indicated that he had no further evidence 

concerning the admissibility of the spreadsheet exhibits. The Court indicated that 

it would not proceed with the trial until after it ruled on the admissibility of these 

exhibits, which Plaintiffs admitted were the sine qua non of their claims. 

Accordingly, the Court vacated the trial date and indicated that it would set 

additional dates as needed after issuing this decision. 

Discussion

Although the case has been pared down substantially from its inception 13 

years ago, numerous motions remain pending, most notably, the pretrial motions 

relating to the admissibility of Plaintiffs’ key trial exhibits. The question 

concerning the admissibility of Plaintiffs’ proposed trial exhibits was also raised by 

the Court sua sponte, consistent with its obligations under Federal Rule of Evidence 

104(a). The parties’ summary judgment motions also remain pending, as do the 

parties’ motions in limine and several other trial-related motions. Because the 

question of the admissibility of Plaintiffs’ trial exhibits is dispositive, the Court 

considers it first. 

A. The “Relevant Orders” Spreadsheet Exhibits

The lists of orders are really the crux of Plaintiffs’ case. Not surprisingly 

then, the question of their admissibility and their import comes up in several of the 

pending motions, including the parties’ summary judgment motions and the parties’ 

52
motions in limine. The Court, on its own, raised the issue with Plaintiffs as part of 

its obligation under Rule 104(a) to ensure the admissibility of all proposed evidence. 

The lists of orders are also the subject of several other motions filed by the parties. 

Given the extent of motion practice concerning the lists of orders, and given 

Plaintiffs’ repeated concession that they cannot prove any of their asserted claims 

without these exhibits, the Court found it troubling that, just weeks before the case 

was set to be tried, Plaintiffs still did not have a clear path for admitting those 

exhibits at trial. Indeed, as should be clear from the above chronology, the Court 

has had a devil of a time even determining which exact documents Plaintiffs 

planned to offer at trial to prove their claims, a necessary predicate to assessing the 

admissibility of those exhibits. After taking time to fully consider the issue, and 

after giving Plaintiffs every opportunity to establish an evidentiary foundation for 

the lists of orders, the Court finds that Plaintiffs lack a sufficient foundation for the 

admission at trial of the spreadsheet exhibits introduced at the evidentiary hearing 

– notably, Exhibits 1, 2, and 3 (which were created by DeMeritt and purport to 

represent orders that were submitted by Plaintiffs and mishandled by Defendants), 

and Exhibits 11 and 12 (which purportedly consist of at least some of the data 

underlying DeMeritt’s spreadsheets). 

Federal Rule of Evidence 104 requires this Court to decide any preliminary 

questions about whether a witness is qualified to testify or whether evidence is 

admissible. Unless otherwise precluded by rule or law, relevant evidence is 

generally admissible; irrelevant evidence is not admissible. Fed. R. Evid. 402. 

53
“Evidence is relevant if: (a) it has any tendency to make a fact more or less probable 

than it would be without the evidence; and (b) the fact is of consequence in 

determining the action.” Fed. R. Evid. 401. Even relevant evidence may be 

excluded, however, “if its probative value is substantially outweighed by a danger of 

one or more of the following: unfair prejudice, confusing the issues, misleading the 

jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” 

Fed. R. Evid. 403. 

Within the context of Rule 403, “unfair prejudice” is “an undue tendency” to 

suggest a decision on an “improper” basis. Thompson v. City of Chicago, 722 F.3d 

963, 971 (7th Cir. 2013) (citing Fed. R. Evid. 403 advisory committee’s notes on 1972 

Proposed Rules; Old Chief v. United States, 519 U.S. 172, 184-85 (1997)). The 

amount of prejudice that is “acceptable varies according to the amount of probative 

value the evidence possesses. ‘[T]he more probative the evidence, the more the court 

will tolerate some risk of prejudice, while less probative evidence will be received 

only if the risk of prejudice is more remote.’” Thompson, 722 F.3d at 971 (quoting 

United States v. Boros, 668 F.3d 901, 909 (7th Cir. 2012); United States v. Vargas, 

552 F.3d 550, 557 (7th Cir. 2008)).

To be sure, producing an admissible list of relevant orders remains crucial to 

Plaintiffs’ case, and Plaintiffs conceded on numerous occasions that they could not 

prove their claims without doing so.5 That need by itself, however, is not enough. 

5 In conducting the requisite Rule 403 analysis, this Court, of course, has considered the proponent’s 

need for the proffered evidence. See Fed. R. Evid. 403 (Advisory Committee Notes stating that 

situations “in this area call for balancing the probative value of and need for the evidence against the 

harm likely to result from its admission.”); United States v. Jackson, 886 F.2d 838, 847 (7th Cir. 

54

 
Plaintiffs are still required to demonstrate that the actual evidence they do produce

possesses probative value not substantially outweighed by a danger of unfair 

prejudice. And here, Plaintiffs have simply failed to make the requisite showing.

The probative value (and indeed relevance) of DeMeritt’s spreadsheets

(Ehibits 1, 2, and 3), depends upon the extent to which these exhibits actually 

demonstrate or tend to prove the mishandling of orders. Yet no witness was able to 

say that the spreadsheets actually showed mishandled orders. Likewise, no one 

testified about any factor relevant to the analysis implicated by a claim that orders 

were mishandled, other than time, which by itself would not be enough to show 

mishandling. See Kurz v. Fid. Mgmt. & Research Co., 556 F.3d 639, 640 (7th Cir. 

2009) (“best execution” means “getting the optimal combination of price, speed, and 

liquidity for a securities trade”) (citing Jonathan R. Macey & Maureen O'Hara, The 

Law and Economics of Best Execution, 6 J. Financial Intermediation 188 (1997)); 

Newton v. Merrill, Lynch, Pierce, Fenner & Smith, Inc., 135 F.3d 266, 270 n.2 (3d

Cir. 1998) ( “[o]ther terms in addition to price are also relevant to best execution”: 

account order size, trading characteristics of the security, speed of execution, 

clearing costs, and the cost and difficult of executing an order in a particular 

1989) (“[I]n the absence of the handwriting exemplars, the admission of the evidence of refusal is 

critical because there appears to be no alternative means of proof with regard to an essential element 

of the government’s case. While prosecutorial need alone does not mean probative value outweighs 

prejudice, the more essential the evidence, the greater its probative value, and the less likely that a 

trial court should order the evidence excluded.”); United States v. Patrick, 513 F. App'x 882, 887 

(11th Cir. 2013); United States v. Stout, 509 F.3d 796, 804 (6th Cir. 2007); United States v. King, 713 

F.2d 627, 632 (11th Cir. 1983) (“The government has no case without [the disputed evidence]. In this 

instance the probative value is as high as it possibility could be.”). Nevertheless, bare assertions of 

need alone do not trump the rest of the inquiry under Rule 403. In the end, the proffered evidence 

must, in fact, show what the proponent said it would, and here, among other defects, the Plaintiffs 

unfulfilled promises about what evidence they have, and what that evidence can show, fail to clear 

the Rule 403 hurdle.

55

 
market”); Payment for Order Flow, S.E.C. Release No. 33026 (Oct. 6, 1993) (brokers’ 

duty to obtain the best execution requires consideration of factors including, among 

other things, the size of the order, the trading characteristics of the security 

involved, the availability of accurate information affecting choices as to the most 

favorable market in which execution might be sought, the availability of 

technological aids to process such data, the availability of economic access to the 

various market centers and the costs and difficulty associated with achieving an 

execution in a particular market center). 

The Court devoted two days and more than 15 hours to allowing Plaintiffs to 

lay a foundation for the lists of orders, and yet no witness ever competently testified 

that the lists of orders demonstrated any failure on the part of any Defendant to 

provide “best execution” – indeed, no witness was ever able to say that the orders 

were actually mishandled. DeMeritt testified concerning the time parameters he 

used to match his orders to the allegedly mishandled orders. But even he conceded 

that factors other than time had to be considered before an order could be said to be 

mishandled. Raising additional dangers of unfair prejudice and misleading of the 

jury under Rule 402, DeMeritt also admitted that the lists likely included orders 

that were not actually mishandled and likely included orders that were not even 

initiated by any Plaintiff in this case. Similarly, his testimony makes clear that the 

criteria he used to supposedly match orders did not address requisite factors 

regarding any alleged failure of best execution. 

56
Moreover, even if Plaintiffs could establish the relevance or Rule 403 

admissibility of the spreadsheets (Exhibits 1, 2 and 3), which they have failed to do, 

the Plaintiffs further failed to lay an evidentiary foundation for the underlying data 

from which those summary spreadsheet exhibits were purportedly created. Federal 

Rule of Evidence 901 provides that, “[t]o satisfy the requirement of authenticating 

or identifying an item of evidence, the proponent must produce evidence sufficient 

to support a finding that the item is what the proponent claims it is.” Plaintiffs 

failed to present any witness with any first-hand knowledge of the source of 

underlying data. Plaintiffs consistently failed to recognize the distinction between 

the underlying data sources and the derivative spreadsheets created by DeMeritt, 

and never offered a witness to testify concerning the authenticity or non-hearsay 

predicates of that underlying data itself. Plaintiffs apparently believed they could 

publish to the jury unauthenticated documents full of hearsay purportedly 

suggesting the mishandling of orders, and then hope that the jury would find, 

without a sound factual basis, that those orders were actually submitted by 

Plaintiffs and indeed mishandled by Defendants. The Rules of Evidence preclude 

such a trial-by-conjecture strategy.

After 13 years of litigation, this Court can indulge Plaintiffs no longer. At the 

outset, Magistrate Judge Keys almost dismissed this case when it appeared that 

Plaintiffs had no real proof of their allegations and were attempting to litigate 

based on hunches and conjecture. Plaintiffs survived numerous challenges before 

discovery concluded, mostly by making promises of what they “could show” and 

57
what they “would produce” in the future. At this point, however, there is no future, 

and Plaintiffs’ proof problems are fatal. 

On October 13, 2016, the Court warned Plaintiffs’ counsel that, based upon 

his inadequate certification and the purported evidence proffered to date, the Court 

would sustain an evidentiary objection to the admissibility of Plaintiffs’ “relevant 

orders” lists in the absence of a proper foundation. The Court further advised that 

“Plaintiffs’ persistent attempts to characterize these orders as ‘relevant’ despite the 

lack of evidence demonstrating such relevance (or indeed their admissibility under 

403),” warranted further attention on a pretrial basis. The Court set the matter for 

the evidentiary hearing discussed above. In the interim, Plaintiffs could have 

attempted to obtain certifications from exchange witnesses, designated deposition 

testimony from such witnesses or simply subpoenaed a proper witness to potentially 

lay a foundation for any requisite lists and data, i.e., the alleged proof that they 

have been promising to produce for more than a decade. They did none of those 

things. 

It is undisputed that DeMeritt was solely responsible for creating the 

spreadsheets identified as Exhibits 1, 2, and 3. As is clear from his testimony, 

however, DeMeritt knew little or nothing about the underlying data from which his 

spreadsheets were created. In essence, he was handed some underlying data and 

told that it reflected orders that were “traded ahead” or otherwise mishandled, and 

then he devised a method to determine which of those orders on those spreadsheets 

might (and this Court emphasizes might) have been submitted by Plaintiffs. As a 

58
result, DeMeritt’s spreadsheets are only as good as the underlying data – and 

Plaintiffs did not offer a single witness to establish the authenticity, reliability or 

admissibility of that data. Neither DeMeritt, nor Lowry, nor Freedman knew 

anything about how the underlying data was compiled or generated. In short, no 

witness has ever testified in this case as to the authenticity or reliability of the data 

upon which DeMeritt’s spreadsheets are purportedly based. 

Additionally, DeMeritt’s testimony makes clear that the algorithm or 

methodology he used to create his spreadsheets undermines their reliability and 

admissibility under Rule 403. He testified that his algorithm did not account for 

crossed markets or fast markets and may not have excluded orders that, by all 

accounts, likely received best execution. The spreadsheets, which Plaintiffs 

consistently attempt to characterize as summaries, are based upon data and 

information that Plaintiffs cannot, in turn, authenticate or explain. The Court 

crystallized the issue for counsel at the evidentiary hearing: 

THE COURT: None of these exhibits are going to be admissible unless 

the underlying data has a basis of admissibility, or the source of where 

this information comes from is going to be otherwise admissible under 

the rules of evidence. Right now, you’ve got multiple sources of data, 

and I’m trying to see if you can lay the foundation for it. So I want you 

to go through each type of plaintiffs’ data and ask this witness, if he 

knows, the questions that would lay the foundation for the source data.

MR. FRIEDMAN: I was just going to say, your Honor, there’s no 

objection to the admission of the underlying source data. The 

defendants have identified it as an exhibit and so have we, the 

underlying.

THE COURT: At this point none of that’s in evidence which is the 

whole purpose –

59
MR. FRIEDMAN: It will be, though.

THE COURT: Well, this is what I want you to get at. Right now, none 

of this is in evidence. We’ve been sitting here for a long time, and it’s 

still not in evidence.

MR. FRIEDMAN: Well, because it’s a humongous amount of data, your 

Honor.

THE COURT: I know.

MR. FRIEDMAN: It’s 13 terabytes of data.

THE COURT: I know. But you have someone identify it, someone who 

understands what it is and someone who explains what it is and lays a 

foundation for it, and then you draw whatever other demonstrative 

exhibits you have or summary exhibits that you have.

MR. FRIEDMAN: Okay.

THE COURT: It’s not unusual. There are rules that govern it and case 

law that governs it, and I’m waiting for the foundational questions. So 

before you start publishing the exhibits that you’re trying to explain, I 

want this − I want you to ask questions about foundation.

MR. FRIEDMAN: Okay.

THE COURT: Not publishing, I want questions about foundation.

MR. FRIEDMAN: Okay.

THE COURT: I’ve been as patient as I can. It’s now − this hearing 

started at what time? What time did the hearing start? . . . 10:30. It is 

now 4:30, and I'm still waiting for what I asked for.

MR. FRIEDMAN: Okay.

THE COURT: So I’ve been very patient, and I’m going to continue to be 

patient. But I need you to ask questions about foundation, not 

publishing exhibits.

MR. FRIEDMAN: Okay. I assume that you wanted me to do that once 

we’ve actually admitted that into evidence, but I will go through it 

even though it has not yet been admitted into evidence.

60
THE COURT: This is the hearing about whether or not any of it’s 

getting into evidence.

MR. FRIEDMAN: I know, but −

THE COURT: I don’t know how clear, how I can be more clear. You 

need to lay the foundation for these exhibits.

Transcript of Proceedings of 10/27/16 [1610], pp. 207-209. 

DeMeritt was not able to authenticate any of the underlying data, except 

possibly some of the internal orders data captured by Last Atlantis itself. His 

testimony demonstrated that he had no personal knowledge concerning the 

foundational questions for the underlying audit trail data, the exchange data or any 

of the data purportedly coming from the SEC. He had no idea how it was captured, 

compiled or generated and no idea what it showed; he simply assumed that it 

captured the universe of mishandled orders and set about trying to match Last 

Atlantis’ orders to those displayed in that underlying data. In his testimony, he 

conceded that he believed portions of the data were corrupted or could be missing, 

but he did not personally know how to ascertain the extent of such reliability 

problems. 

THE COURT: Do you have any personal knowledge about any of those 

underlying data, some of which you believe are corrupted?

THE WITNESS: Do I have personal knowledge that they were 

corrupted or −

THE COURT: Do you have any personal knowledge about how they 

were actually created or how it was inputted into a system, how it was 

extracted from a system? You just got it . . . on a disc, right?

THE WITNESS: Correct.

61
THE COURT: So you don’t know how exactly the system works or how 

it produces any data, which is why you don't really know why portions 

were corrupted or not, right?

THE WITNESS: They were − for instance, the CBOE was Oracle − was 

an Oracle backup file. So I know how the data was created and it came 

from the system, the Oracle database server, and it was backed up in 

these files. The cover letter for the data said that there were missing 

days. That's all I know, there were missing days.

THE COURT: So the reliability of the information is based on a letter 

that you read?

THE WITNESS: Correct.

* * *

THE COURT: Who wrote the letter?

THE WITNESS: I think it was the CBOE counsel.

THE COURT: All right. So if there were other problems with the data, 

you wouldn’t know that unless you got a letter? You're just going off 

what you see, right?

THE WITNESS: That is correct.

* * *

THE COURT: You would know if it was a problem if you compared it 

to something else if there was one specific thing that was missing. But 

if entire categories of things were missing, you wouldn’t be able to tell?

THE WITNESS: Entire category, I . . . it depends on how you define 

category.

THE COURT: It depends. That’s what I thought. That’s because you 

didn’t pull this data from the system, somebody else did and then put a 

cover letter on it, right?

THE WITNESS: That is correct.

Id., pp. 213-215. 

62
DeMeritt conceded that he has no expertise to identify orders that may have 

been mishandled; that he has never worked for an exchange, never worked as a 

securities regulator, never done any surveillance of market activities, never traded 

on the floor of an exchange; that he has no idea how the exchange systems actually 

function, no idea how long it takes for an order once it reaches an exchange to get to 

a specialist, and no idea about the computer systems the exchanges used in the 

relevant time period. Transcript of Proceedings of 11/14/16 [1624]. pp. 495-97. 

DeMeritt also testified that he had no idea how the exchanges pulled the data 

reflected in Exhibits 11, 12, 14, and 15; no idea whether or how the data was 

manipulated; and no idea what the exchanges did with the data to create those 

spreadsheets. Id., pp. 498-99. He testified that he did not even know whether the 

document generated using COATS data was actually generated for the SEC. Id., p. 

498. 

Thus, although DeMeritt could testify as to how Exhibits 1, 2, and 3 were 

created (because he created them and had personal knowledge of what he did), he 

could not authenticate or lay a foundation for any of the underlying data from which 

these exhibits were created, and his testimony makes clear that he did not know 

anything about the underlying data source from which his summary spreadsheets 

were created. Quite simply, no witness was ever able to authenticate the 

underlying data from which Plaintiffs’ exhibits were pulled, and Plaintiffs did not 

present any witness from the SEC or any of the exchanges to authenticate the 

underlying data. 

63
Just as problematic, DeMeritt testified that his summary spreadsheets likely 

included orders that did not even come from Plaintiffs and likely included orders 

that were not mishandled. See Transcript of Proceedings of 10/27/16 [1610], p. 146 

(where DeMeritt conceded that it was possible that some of the orders Plaintiffs 

have characterized as their orders may not even be Plaintiffs’ orders); id., pp. 160-

161 (where DeMeritt conceded that assessing best execution using just one time 

window, without regard to market conditions, may be misleading). This calls into 

question both the relevance under Rule 401 and 402, and the reliability and 

admissibility of these exhibits under Rule 403. Plaintiffs failed to adequately 

address these issues at the evidentiary hearing. 

Although the Court has focused largely on DeMeritt, the other witnesses 

Plaintiffs presented – experts Robert Lowry and Roy Freedman − similarly fell far 

short of establishing the admissibility of the lists of orders. Initially, it is 

undisputed that the versions of the spreadsheets marked as Exhibits 1, 2 and 3 at 

the evidentiary hearing were created in connection with Plaintiffs’ motion for 

partial summary judgment, which Plaintiffs filed in January of 2016; they are 

different from the versions of the spreadsheets that were produced in discovery. 

Exhibits 1, 2 and 3 were created and provided to Defendants after DeMeritt was 

deposed, after he prepared his expert report, after Plaintiffs’ other experts prepared 

their reports, and after discovery closed. Neither Lowry nor Freedman reviewed the

version of the actual spreadsheets marked for trial, and none of their expert 

opinions relate to these versions of the spreadsheets. Indeed, DeMeritt testified 

64
that Freedman had nothing to do with Exhibits 1, 2, and 3, and he conceded that 

whatever analysis or testing Freedman did was not an analysis of Exhibits 1, 2, and 

3. Id., p. 185. By refusing to finalize their own key exhibits and ascertain their 

admissibility in a timely fashion, Plaintiffs presented experts at the evidentiary 

hearing whose opinions were based on outdated exhibits. Given the disconnect 

between the exhibits about which Lowry and Freedman opined and upon which 

they based their analysis and opinions, and the exhibits Plaintiffs actually marked 

for admission at trial, Lowry and Freedman are of little help to Plaintiffs. 

Certainly, these witnesses would not be permitted to offer untimely or undisclosed 

expert opinions concerning these exhibits at trial, and they possess no useful factual 

testimony. 

As an alternative, Plaintiffs have suggested that their exhibits are selfauthenticating, such that no witness is required to establish their admissibility. To 

be sure, the Rules of Evidence provide that certain types of documents can be selfauthenticating – public documents, certified copies of public records, official 

publications, newspapers and periodicals, trade inscriptions, acknowledged 

documents, commercial paper and related documents, and certified records of 

regularly conducted activities. Fed. R. Evid. 902. Despite ample opportunities to do 

so, however, Plaintiffs never sought to introduce any of the necessary certifications 

for the underlying datasets, if in fact they could be obtained. 

Moreover, for exhibits to be self-authenticating as “certified domestic records 

of a regularly conducted activity” under Rule 902(11), the documents must also 

65
satisfy the requirements of Rule 803(6)((A)-(C). That is, the following must be 

established: 

(A) the record was made at or near the time by−or from 

information transmitted by−someone with knowledge;

(B) the record was kept in the course of a regularly conducted 

activity of a business, organization, occupation, or calling, whether or 

not for profit;

(C) making the record was a regular practice of that activity . . . .

Fed. R. Evid. 803(6). Exhibits 1, 2 and 3 were created by DeMeritt years after the

transactions ostensibly recorded therein occurred and solely for the purpose of 

litigation. More fundamentally, the question of whether any underlying audit trail 

data could satisfy the first three criteria is irrelevant, because Plaintiffs did not 

offer the underlying data itself or otherwise lay a foundation for it. For example, 

they failed to offer, as required by Rule 902(11), “a certification of the custodian or 

another qualified person that complies with a federal statute or a rule prescribed by 

the Supreme Court”; nor did they provide “reasonable written notice of the intent to 

offer the record” or make the record and certification “available for inspection.” 

In this same vein, Plaintiffs also suggest that their exhibits are admissible as 

public records. To the extent they seek to argue that their exhibits are selfauthenticating public records under Rule 902(2), (4), or (5), the records themselves 

undermine such a claim. None of the specific exhibits offered by Plaintiffs at the 

evidentiary hearing meet the criteria spelled out in the rule (for instance, none bore 

the requisite signatures, certifications, or indicia). Likewise, to the extent Plaintiffs 

are suggesting that any of their exhibits would be admissible under Federal Rule of 

Evidence 803(8) as a “record or statement of a public office,” that suggestion would 

66
similarly fail. Such a statement may be admissible if it sets out: “(i) the public 

office’s activities; (ii) a matter observed while under a legal duty to report; or (iii) 

factual findings from a legally authorized investigation . . . .” Fed. R. Evid.

803(8)(A). What’s more, an exhibit satisfying these criteria is only admissible if “the 

opponent does not show that the source of information or other circumstances 

indicate a lack of trustworthiness.” Fed. R. Evid. 803(8)(B). Plaintiffs cannot 

reasonably claim that Exhibits 1, 2, and 3 satisfy these criteria: they were created 

by DeMeritt, not any public officer. To the extent Plaintiffs are suggesting that the 

data they purportedly received from the SEC might satisfy these criteria, again, 

they never offered the specific SEC data itself, and never otherwise laid any 

foundation for the admission of the list of orders that they claim came from the 

SEC. Instead, they sought to admit the spreadsheets created by DeMeritt. In 

short, the public records exception does not make DeMeritt’s homemade lists 

admissible.

In their efforts to establish admissibility, Plaintiffs have also argued that the 

lists of orders are market reports or similar commercial publications. “Market 

quotations, lists, directories, or other compilations that are generally relied on by 

the public or by persons in particular occupations” may be admissible even if they 

otherwise constitute hearsay evidence. Fed. R. Evid. 803(17). Here again, however, 

Plaintiffs have failed to show how their exhibits could satisfy the requisite criteria. 

Nothing in the record shows that DeMeritt’s lists of orders are generally relied upon 

67
by the public or by persons in particular occupations. Indeed, they were created 

solely and exclusively for this litigation. 

Finally, the Court rejects any attempt to characterize the lists of orders as 

proper “summaries” under the Federal Rules of Evidence A summary or chart may 

be used “to prove the content of voluminous writings, recordings, or photographs 

that cannot be conveniently examined in court.” Fed. R. Evid. 1006. But for the 

summary to be admissible, the party offering it “must make the originals or

duplicates available for examination or copying, or both, by other parties at a 

reasonable time and place. And the court may order the proponent to produce them 

in court.” Id. Despite the Court’s numerous attempts to get Plaintiffs to admit the 

underlying data and documents often referred to at the evidentiary hearing,

Plaintiffs never actually produced the voluminous records upon which they claimed 

their spreadsheets were based, and never presented any witness to competently 

testify concerning the foundation for those records and exhibits. Moreover, 

DeMeritt’s testimony soundly contradicts any notion that the spreadsheets were 

mere summaries of the underlying data. DeMeritt testified that he took the 

underlying datasets and added information from Plaintiffs’ datasets, then 

manipulated the information by applying certain parameters and assumptions to 

come up with new lists that, in his view, likely reflected Plaintiffs’ orders. He did 

not simply extract or summarize information from those underlying datasets. 

In light of the above, the Court finds that Plaintiffs’ lists of orders – marked 

for purposes of the evidentiary hearing as Exhibits 1, 2 and 3 – are inadmissible for 

68
a host of reasons, including but not limited to an utter failure to satisfy the 

requirements of Rule 403. To the extent Plaintiffs created new versions of those 

exhibits between the first and second day of the evidentiary hearing,6 those versions 

are also inadmissible – for all of the reasons explained above, and for the additional 

reason that they were untimely submitted after the fair and final deadline set by 

the Court. 

Consequently, this Court grants both Defendants’ motion to strike the 

revised lists of relevant orders that were disclosed October 19 and October 21, 2016 

[1595] and Defendants’ motion to bar introduction of exhibits not produced to the 

Court or to Defendants by October 31, 2016 [1614]. 

Finally, on the issue of the admissibility of the relevant orders, the Court 

takes up Plaintiffs’ motion for leave to file a pretrial memorandum establishing the 

admissibility of certain lists of orders [1626] (and, relatedly, Defendants’ motion to 

strike that memorandum [1627]). In their motion, Plaintiffs attempt to suggest 

that they were somehow rushed into the evidentiary hearing, with no time to 

prepare, insinuating that, with more time, they could have established all of the 

evidentiary prerequisites for admissibility. The Court categorically rejects that 

suggestion. Throughout these proceedings, Plaintiffs’ counsel has consistently 

failed to meet the Court’s reasonable deadlines, failed to follow the Court’s simple 

instructions, and otherwise behaved in a manner that made this case far more 

6 Remarkably, Plaintiffs created yet another set of exhibits after the first day of the evidentiary 

hearing set to determine the admissibility of those very exhibits. In fact, Plaintiffs continued to try 

to revise the exhibits after the final pretrial conference, despite the Court’s clear instructions not to 

do so.

69

 
protracted than it needed to be. When questioned about his unprofessional conduct, 

counsel routinely blamed others or claimed that, as a sole practitioner, he was 

somehow prejudiced and disadvantaged by this Court’s clear pretrial deadlines. 

But the law applies to all litigants. As is clear from the 13-plus year chronology

noted above, this Court gave counsel ample time to prepare his case for trial and 

clear warning that the Rules of Evidence would not, and could not, be overlooked. 

Counsel chose excuses over diligence and failed to heed the Court’s frequent and 

clear warnings. 

Plaintiffs had more than a decade to prepare their case for trial – a case they 

were ethically bound to investigate even before filing suit. They had a firm trial 

date set nine months in advance. The Court set the evidentiary hearing and 

advised counsel that he could take all the time he needed to provide the Court with 

the evidence and testimony necessary to establish that his trial exhibits were 

admissible. After two full days of testimony, the Court closed the hearing only 

when Plaintiffs’ counsel advised the Court that he was finished, that he had no 

more evidence and no further witnesses. The Court bent over backwards to give 

Plaintiffs their day in court, and any suggestion to the contrary is belied by the 

record. 

What’s more, there is nothing new in Plaintiffs’ proposed memorandum –

and, worse yet, even in this brief Plaintiffs continue to suggest that they will be able 

to authenticate their exhibits, still refusing to acknowledge that the time to do so 

has come and gone. Plaintiffs still insist, for example, that the underlying audit 

70
trail data constitutes admissible business records under Rule 803(6). Yet they 

never sought to admit the audit trail data, and they never bothered to explain how 

DeMeritt’s spreadsheets – the exhibits they did seek to offer at trial – could possibly 

qualify as business records. Quite simply, Plaintiffs had years to come up with 

competent evidence to prove their claims and years to find competent witnesses to 

lay a foundation for that evidence. They failed to do so. The Court declines to 

prejudice Defendants by wasting any more time or resources waiting for Plaintiffs 

to prove their case. Plaintiffs’ motion [1626] is denied, and Defendants’ motion to 

strike [1627] is granted. 

B. Motions for Summary Judgment

As noted above, Plaintiffs and Defendants both moved for summary 

judgment. Plaintiffs filed a motion seeking partial summary judgment [1442] on 

four of Plaintiffs’ state law claims, and Defendants filed a motion for summary 

judgment [1409] on all of the claims asserted in the operative complaint. These 

motions also turn on the lists of orders. Plaintiffs argue that they are entitled to 

judgment as a matter of law because the lists of orders conclusively establish that 

Defendants mishandled Plaintiffs’ orders. And Defendants argue that they are 

entitled to judgment as a matter of law because the lists of orders – Plaintiffs’ only 

proposed proof – would be insufficient to show that Defendants ever mishandled 

any order submitted by any Plaintiff. 

Summary judgment is appropriate if the movant shows that there is no 

genuine dispute as to any material fact and the movant is entitled to judgment as a 

71
matter of law. Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 1060 (7th Cir. 

2014). A genuine dispute as to any material fact exists if “the evidence is such that 

a reasonable jury could return a verdict for the nonmoving party.” Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party seeking summary 

judgment has the burden of establishing that there is no genuine dispute as to any 

material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In determining 

whether a genuine issue of material fact exists, this Court must construe all facts 

and reasonable inferences in the light most favorable to the nonmoving party. See 

CTL ex rel. Trebatoski v. Ashland School District, 743 F.3d 524, 528 (7th Cir. 2014). 

Despite such inferences, however, the “party seeking to defeat a motion for 

summary judgment is required to wheel out all its artillery to defeat it.” Caisse 

Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1270 (7th Cir. 1996)

(internal quotation omitted). Indeed, the Seventh Circuit has frequently reiterated 

that at “the summary judgment stage of a proceeding, a plaintiff must put up or 

shut up and show what evidence he has that would convince a trier of fact to accept 

his version of events.” Olendzki v. Rossi, 765 F.3d 742, 749 (7th Cir. 2014) (internal 

quotations omitted). 

In this case, Plaintiffs have conceded that they cannot prove their claims 

without the lists of orders and that summary judgment in Defendants’ favor would 

be appropriate if those exhibits were excluded; and thus, this Court need not in this 

decision dive too deeply into the details of the summary judgment motions. Based 

upon Plaintiffs’ concessions and this Court’s review of their claims and the entire 

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record, Plaintiffs are not entitled to summary judgment on any of their claims, and 

Defendants are entitled to summary judgment on all of Plaintiffs’ remaining claims. 

The Court briefly discusses both motions below.

1. Plaintiffs’ motion for partial summary judgment

Plaintiffs seek partial summary judgment on certain of their state law 

claims, arguing that the lists of orders show that the Susquehanna Defendants 

executed thousands of trades for their own accounts ahead of, and instead of, 

executing marketable orders from Plaintiffs to buy or sell the same options against 

pending contra-side orders at the same prices that they represented as an agent and 

fiduciary. [1473], at 6. Plaintiffs’ motion for partial summary judgment is denied

for the simple reason, as explained above, that the lists of orders do not show what 

Plaintiffs have long claimed they would show. Putting aside questions of 

admissibility, the lists of orders do not evidence trading ahead or any other failure 

to provide best execution on the part of the Defendants. Robert DeMeritt, who did 

the filtering of Last Atlantis’ internal data to come up with the list of orders, 

testified at his deposition that the list of orders he created was “a list of unfilled 

orders” compiled “without regard as to why they were unfilled.” Rule 30(b)(6) 

Deposition of Last Atlantis, through Robert DeMeritt, taken 9/23/08 (attached as 

Exhibit 76 to Declaration of Ellen Wheeler in support of Defendants’ response to 

Plaintiffs’ motion for partial summary judgment [1500]), p. 48. Plaintiffs’ expert, 

Roy Freedman, testified that the list of relevant orders does not identify orders that 

were actually mishandled: “Plaintiffs’ methodology identifies relevant orders so that 

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they – they may have been mishandled.” Deposition of Roy Freedman taken 7/7/15 

[1559-2], p. 310. Consistent with this testimony, at the evidentiary hearing, 

DeMeritt conceded that his lists of orders likely included orders that were not 

submitted by Plaintiffs, that the lists failed to account for various market conditions 

that would undermine any claim of mishandling, and that the lists failed to consider 

any factors relevant to the best execution analysis other than a time interval he 

deemed inadequate (as a lay opinion rather than qualified expert opinion). Beyond 

the inadequate showing above, Plaintiffs have no rabbits to pull from the hat. 

2. Defendants’ motion for summary judgment

The Defendants seek summary judgment on all claims, arguing 

predominantly that Plaintiffs have offered no evidence that any of the orders 

included on the lists of orders was actually mishandled. Defendants further 

contend that, by Plaintiffs’ own admission, the lists do not identify orders that were 

mishandled, but only orders that might have been mishandled. Defendants argue 

that, after 12 years of litigation, Plaintiffs still have not offered any evidence 

showing that any Defendant, in fact, mishandled any order submitted by any 

Plaintiff. Accordingly, Defendants request judgment in their favor across the board. 

In response to Defendants’ motion, Plaintiffs declined to address the merits of 

the vast majority of Defendants’ claims, arguing instead that Defendants waived 

the arguments made in support of summary judgment by failing to raise them in 

their prior motions. Plaintiffs declined to address the substance of Defendants’ 

arguments, despite this Court’s specific admonition before briefing on Plaintiffs’ 

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response that they needed to address both the waiver issue and the substantive 

arguments. The briefing strategy adopted by Plaintiffs was ill-advised – in light of 

the chronology set forth above, the waiver argument is a loser. It is clear from the 

record that Judge Bucklo did not intend for her prior summary judgment rulings to 

foreclose future motions once merits discovery was complete. Indeed, all of the prior 

motions were preliminary in nature, made before any full discovery had been 

conducted. Merits discovery did not even begin in earnest until after Judge Bucklo 

issued her June 6, 2011 summary judgment ruling and Judge Keys lifted the twoyear-old stay. 

Turning to the substance of Defendants’ arguments, this Court notes that, 

although Defendants’ motion addresses each claim and establishes on an elementby-element basis why Plaintiffs’ claims fail, the Court need not detail those 

arguments (which are instead incorporated herein by reference). Plaintiffs have 

conceded on several occasions that they cannot prove their claims without the lists 

of orders. At the status hearing on October 13, 2016, counsel for the Plaintiffs 

conceded that “the specific spreadsheets with the specific – identifying the specific 

orders, that’s critical to the case, correct.” Transcript of Proceedings of 10/13/16 

[1578], p. 7. Counsel for Plaintiffs also conceded that none of the pending claims 

would survive unless the orders were admitted. Id., pp. 8-9. At the conclusion of 

the recent evidentiary hearing, the Court reiterated that Plaintiffs had offered 

everything they had on what they conceded were the crucial exhibits: 

THE COURT: That concludes your evidence, right, Counsel?

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MR. FRIEDMAN: Yes.

THE COURT: Okay. I want to confirm what you indicated earlier that 

− because, you know, it's been stated multiple times on the record and 

in written orders, but let me do it again. The purpose of this hearing 

was the Rule 11 certification, the various motions in limine and the

admissibility of the plaintiffs' key exhibits and related testimony 

including what’s been referred to as the relevant orders. And because 

the Court wanted a foundation for what those were rather than a 

proffer because the method of receiving a proffer, which is, you know, a 

legitimate method for a variety of pretrial rulings was, based on my 

review of the record here, unsuccessful, the Court conducted a –

devoted two full days – it’s past 5:30 now at this point – to ascertain 

whether or not these key exhibits and related testimony would − and 

the various subjects that are the motion − that are the subject of the 

various motions in limine, exactly how that would play out. Because it 

was important because it relates, if nothing else, to the summary 

judgment motion. Counsel chose to – plaintiffs’ counsel chose to make 

procedural arguments with respect to the motion for summary 

judgment rather than addressing the merits, which the Court 

specifically told him to address the merits in the alternative. But it 

doesn’t really matter because at this point, as plaintiffs’ counsel has 

conceded, that if these key exhibits are not admitted, then there’s no 

question for the jury to determine with respect to either the securities 

claims or the state law claims. That’s still your position, right? Without

this key evidence, you can’t go forward, correct?

MR. FRIEDMAN: Yes, your Honor. But the other thing I wanted to say 

was, you know, we had intended in terms of getting these − the full 

basis for the admissibility of these spreadsheets to also have the 

witnesses from the exchanges, their deposition testimony read in, as 

well as questioning some of the witnesses from the defendants as to 

how these spreadsheets, the spreadsheets from which we extracted the

information were prepared by the exchanges.

THE COURT: Well, in terms of the admissibility of your exhibits, 

you’ve already concluded your evidence, and none of that was included. 

So that is not in front of me because after two full days and more than 

I believe 12 hours of testimony, no such exhibits were presented to me. 

And I got Plaintiffs’ Exhibits 1 through 20, and I have the oral 

testimony that was submitted today. So that’s not part of any 

testimony that you’ve proffered to me, and you’ve already indicated 

that you’ve concluded your testimony so −

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MR. FRIEDMAN: Well, your Honor, in the summary judgment papers, 

we did submit the testimony of the representatives of the exchanges 

with respect to how they prepared some of those trading ahead 

spreadsheets and the firm quote trade spreadsheets.

THE COURT: The purpose of this hearing is to determine whether or 

not you can get past a directed verdict, whether or not you can get past 

a summary judgment. Because as you've indicated, if you don't have 

these exhibits in, you would not get past a summary judgment; is that 

correct? I mean, regardless of what you responded to in the summary 

judgment, if your Exhibits 1 through 20 are not in, how are you going 

to meet the elements of your case?

MR. FRIEDMAN: Yeah, those have to be in, yes.

THE COURT: Okay. So for the purposes of summary judgment, if −

and I’m not saying this is what the Court’s ruling is. The Court hasn’t 

issued a ruling yet. But if 1 through 20 or some material subset of 

those are not admissible, then the defendants would be entitled to

judgment as a matter of law because there would be nothing for the 

jury to decide, right?

MR. FRIEDMAN: Yes, that’s correct.

Transcript of Proceedings of 11/14/16 [1624], pp. 598-99. 

Having determined that the lists of orders – that is, Exhibits 1, 2, and 3, are 

inadmissible, in light of counsel’s concessions, and based upon the record and the 

arguments set forth in Defendants’ motion for summary judgment, the Court finds 

that Defendants are entitled to judgment as a matter of law on all remaining 

claims. 

With regard to the peripheral motions attacking Defendants’ motion for 

summary judgment, the Court denies Plaintiffs’ motion to strike Defendants’ 

motion for summary judgment [1479]. As explained, the motion was substantively 

and procedurally appropriate. Plaintiffs’ motion to strike the declaration of Brian 

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Sopinsky [1534] and Plaintiffs’ motion to bar Defendants’ use of Crystal Ambron 

and to strike parts of her declaration [1546] are denied as moot. Neither 

declaration played any role in the Court’s decision today.

C. Additional Pending Motions

As explained above, most of the parties’ motions in limine remain pending, as 

do numerous trial-related motions, including Defendants’ motion to bar Plaintiffs’ 

counsel from testifying [1558]; Defendants’ motion for sanctions and an adverse 

inference instruction due to Plaintiffs’ spoliation [1579]; Plaintiffs’ motion to file 

instanter a corrected opposition to Defendants’ motions in limine [1603]; and 

Defendants’ motion to strike Plaintiffs’ corrected opposition [1604]. Given the 

Court’s findings above concerning the inadmissibility of Plaintiffs’ critical trial 

exhibits, and the finding that there will be no trial, all of these motions are denied 

as moot. 

Conclusion

For the reasons explained above, the Court finds that Plaintiffs’ lists of 

orders−marked for purposes of the October 27 and November 14 evidentiary 

hearing as Exhibits 1, 2, 3, 11, and 12–are inadmissible under Rule 403. 

Exhibits 1, 2, and 3 are also inadmissible because Plaintiffs failed to 

demonstrate either their relevance or reliability. 

And Exhibits 11 and 12, along with any other evidence relating to the 

datasets underlying exhibits 1, 2, and 3, are also inadmissible because Plaintiffs 

failed to authenticate them or to otherwise lay an evidentiary foundation for them. 

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As a result, and in light of Plaintiffs’ concession, the record and Defendants’ 

summary judgment submissions, Defendants are entitled to judgment as a matter 

of law on all pending claims.

Plaintiffs’ motion for partial summary judgment is denied. All pending trialrelated motions are denied as moot.

The Clerk is directed to enter judgment against Plaintiffs and in favor of the 

Susquehanna Defendants on all pending claims. Civil case terminated. 

Date: May 2, 2017

ENTERED:

_______________________________

John Robert Blakey

United States District Judge

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