UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

PLAINTIFFS’ OPENING BRIEF IN SUPPORT OF ARTICLE III STANDING 

OR LIMITED JURISDICTIONAL DISCOVERY 

IN RE DEUTSCHE BANK SPOOFING 

LITIGATION 

Case No. 1:20-cv-03638 

Hon. Joan B. Gottschall 

Case: 1:20-cv-03638 Document #: 50 Filed: 10/11/21 Page 1 of 22 PageID #:443
TABLE OF CONTENTS 

INTRODUCTION .................................................................................................................. 1

STATEMENT OF FACTS ..................................................................................................... 3

ARGUMENT ............................................................................................................................ 6

I. Plaintiffs’ Plead Article III Standing................................................................................ 6

A. Injury-in-Fact. .............................................................................................................. 7

B. Traceability. .................................................................................................................. 9

C. Redressability. ............................................................................................................ 10

II. If the Court Holds Plaintiffs’ Allegations Insufficient under Article III, the 

Court Should Order Jurisdictional Discovery. .................................................................... 11

CONCLUSION ...................................................................................................................... 14

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TABLE OF AUTHORITIES

Cases

Am. Civ. Liberties Union of Florida, Inc. v. City of Sarasota, 

859 F.3d 1337 (11th Cir. 2017) .......................................................................................... 11, 12 

Bell v. Hood, 

327 U.S. 678 (1946) ................................................................................................................... 1 

Boim v. Am. Muslims for Palestine, 

9 F.4th 545 (7th Cir. 2021) ................................................................................................... 2, 12 

Booker-El v. Superintendent, Ind. State Prison, 

668 F.3d 896 (7th Cir. 2012) ...................................................................................................... 6 

Crabtree v. Experian Information Solutions, Inc., 

948 F.3d 872 (7th Cir. 2020) .......................................................................................... 3, 11, 12 

Diedrich v. Ocwen Loan Servicing, LLC, 

839 F.3d 583 (7th Cir. 2016) .................................................................................................. 7, 8 

Equal Rts. Ctr. v. Camden Prop. Tr., 

No. CIV. PJM07-2357, 2008 WL 8922896 n.9 (D. Md. Sept. 22, 2008) ................................ 10 

Gelboim v. Bank of Am. Corp., 

823 F.3d 759 (2d Cir. 2016) ....................................................................................................... 7 

Grupo Petrotemex, S.A. DE C.V. v. Polymetrix AG, 

No. 16-CV-2401 (SRN/HB), 2019 WL 1230003 (D. Minn. Mar. 15, 2019) ........................... 12 

Harry v. Total Gas & Power N. Am., Inc., 

889 F.3d 104 (2d Cir. 2018) ................................................................................................... 2, 8 

In re Amaranth Natural Gas Commodities Litig., 

269 F.R.D. 366 (S.D.N.Y. 2010)................................................................................................ 8 

In re Bank of Am. Corp. Sec., 

No. 09 MDL 2058(DC), 2009 WL 4796169 (S.D.N.Y. Nov. 16, 2009) ................................. 13 

In re Chicago Bd. Options Exch. Volatility Index Manipulation Antitrust Litig., 

390 F. Supp. 3d 916 (N.D. Ill. 2019) ....................................................................................... 10

In re Commodity Exch., Inc., 

213 F. Supp. 3d 631 (S.D.N.Y. 2016) ........................................................................................ 9 

In re Dairy Farmers of Am., Inc. Cheese Antitrust Litig., 

No. 9 CV 3690, 2015 WL 3988488 (N.D. Ill. June 29, 2015) ................................................... 6 

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In re LIBOR-Based Fin. Instruments Antitrust Litig. ,

299 F. Supp. 3d 430 (S.D.N.Y. 2018) ........................................................................................ 8 

In re LIBOR-Based Fin. Instruments Antitrust Litig., 

962 F. Supp. 2d 606 (S.D.N.Y. 2013) ................................................................................ 3, 5, 6 

In re Plasma-Derivative Protein Therapies Antitrust Litig., 

No. 09 C 7666, 2012 WL 39766 (N.D. Ill. Jan. 9, 2012) ....................................................... 3, 8 

In re Platinum & Palladium Commodities Litig., 

No. 10 Civ. 3617 (WHP), 2010 WL 11578945 (S.D.N.Y. Nov. 30, 2010) ............................. 13 

IQ Dental Supply, Inc. v. Henry Schein, Inc., 

924 F.3d 57 (2d Cir. 2019) ......................................................................................................... 8 

Kohen v. Pac. Inv. Mgmt. Co. LLC, 

244 F.R.D. 469 (N.D. Ill. 2007), aff’d, 571 F.3d 672 (7th Cir. 2009) ....................................... 8 

Kohen v. Pac. Inv. Mgmt. Co. LLC, 

571 F.3d 672 (7th Cir. 2009) ...................................................................................................... 6 

Loeb Indus., Inc. v. Sumitomo Corp., 

306 F.3d 469 (7th Cir. 2002) ...................................................................................................... 6 

Lujan v. Defs. of Wildlife, 

504 U.S. 555 (1992) ........................................................................................................... 2, 6, 9 

Muellner v. U.S. Bank, N.A., 

No. 15-CV-0596 PJS/LIB, 2015 WL 4374180 (D. Minn. July 15, 2015) ............................... 12 

Oppenheimer Fund, Inc. v. Sanders, 

437 U.S. 340 (1978) ................................................................................................................. 11 

Protect Our Parks, Inc. v. Chicago Park Dist., 

971 F.3d 722 (7th Cir. 2020) ...................................................................................................... 6 

Remijas v. Neiman Marcus Grp., LLC, 

794 F.3d 688 (7th Cir. 2015) ...................................................................................................... 7 

Robertson v. Allied Sols., LLC, 

902 F.3d 690 (7th Cir. 2018) ...................................................................................................... 8 

Sanner v. Bd. of Trade of City of Chicago, 

62 F.3d 918 (7th Cir. 1995) .................................................................................................. 9, 10 

Sonterra Cap. Master Fund, Ltd. v. Barclays Bank plc, 

366 F. Supp. 3d 516 (S.D.N.Y. 2018) ........................................................................................ 8 

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Wells Fargo & Co. v. Wells Fargo Exp. Co., 

556 F.2d 406 (9th Cir. 1977) .................................................................................................... 11 

Wernsing v. Thompson, 

423 F.3d 732 (7th Cir. 2005) .................................................................................................... 10 

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Plaintiffs Rock Capital Markets, LLC (“Rock Capital”), Charles Herbert Proctor, III 

(“Proctor”), Robert Charles Class A, L.P. (“RCA”), David Vecchione (“Vecchione”), Todd Rowan 

(“Rowan”), and Atlantic Trading USA, LLC (“Atlantic Trading”) (collectively, “Plaintiffs”) 

respectfully submit this memorandum of law in response to the Court’s Order (ECF No. 49). 

INTRODUCTION 

 The Court’s Order directs the parties to brief two questions: “(1) does the complaint 

adequately allege the elements of Article III standing? And (2) if not, is limited jurisdictional discovery 

appropriate? These questions must be resolved before the court can reach the merits arguments 

presented in defendants’ motion to dismiss the complaint.” ECF No. 49 at 10. As explained below, 

the complaint alleges Article III standing. Even if it did not, limited jurisdictional discovery would be 

warranted. 

Article III Standing 

It is only where Plaintiffs’ claim is “wholly insubstantial and frivolous” that the Court may 

dismiss for lack of subject matter jurisdiction. Bell v. Hood, 327 U.S. 678, 683 (1946). The complaint 

alleges Article III standing sufficient to invoke the jurisdiction of this Court. At the pleading stage, 

the bar for Article III standing is exceedingly low. Here, the pertinent inquiry is whether it is merely 

“colorable” or “possible” that Plaintiffs were injured; Article III does not require Plaintiffs to plead 

the precise dates and times on which they suffered injury or damages. As Deutsche Bank Securities 

Inc. (“DBSI”) spoofed Treasury and Eurodollar futures on “numerous occasions” during 2013, and 

Plaintiffs traded in those same spoofed markets every trading day and night during 2013, it is 

more than possible (and hardly insubstantial or frivolous) that Plaintiffs were injured at the hands of 

Defendants. If anything is implausible here, it is the suggestion that Plaintiffs could somehow have 

avoided any injury from Defendants’ pervasive misconduct in the same markets at the same time that 

plaintiffs were pervasively trading themselves. There is no need for the Court to use a “fine-toothed 

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comb,” Boim v. Am. Muslims for Palestine, 9 F.4th 545, 556 (7th Cir. 2021), in order to decide whether 

to exercise subject matter jurisdiction under Article III. 

The Complaint alleges facts bringing injury more than “within the realm of possibility,” i.e., 

that Plaintiffs “may” have been harmed by DBSI’s manipulation through spoofing. As the Court 

observed, “Plaintiffs allege a culture of rampant spoofing prevailed throughout DBSI’s trading offices 

worldwide,” ECF No. 49 at 5 (citing ¶ 57),1 and “investigations of alleged trading misconduct and 

manipulation by defendants in other markets around the same time show that defendants maintained 

a corporate culture that encouraged spoofing and manipulation.” Id. at 9 (citing ¶¶ 57–71). The Court 

further observed that the U.S. Commodity Futures Trading Commission (“CFTC”) order (the “CFTC 

Order”) found that on “multiple occasions” in 2013, DBSI spoofed the markets for Treasury and 

Eurodollar futures. ECF No. 49 at 6 (citing CFTC Order at 2-3). As the Court observed, Plaintiffs 

alleged that they “‘regularly transacted’” in Treasury and Eurodollar futures. ECF No. 49 at 2 (citing 

¶¶ 11–17, 31). All Plaintiffs traded “regularly” in 2013, some on “hundreds of days,” and “Rock 

Capital Markets, LLC, and Atlantic Trading USA, LLC, on every trading day” during 2013. Id. (citing. 

¶¶ 11–16). 

Here, where Plaintiffs traded on all of the days that DBSI allegedly spoofed, the allegations 

demonstrate the “possibility” that they were injured by DBSI’s manipulation. See Harry v. Total Gas 

& Power N. Am., Inc., 889 F.3d 104, 111 (2d Cir. 2018) (holding plaintiffs required merely to plead 

colorable injury to satisfy Article III standing). Indeed, any other conclusion would require 

impermissibly drawing inferences against Plaintiffs, rather than in their favor. Lujan v. Defs. of Wildlife, 

504 U.S. 555, 561 (1992) (Courts are to “presum[e] that general allegations embrace those specific 

facts that are necessary to support the claim,” when deciding standing at the pleadings stage). More 

1 Citations to paragraphs of the Complaint are as follows: “¶__.” 

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particularity is not required at this juncture to meet the “low” Article III bar. See In re Plasma-Derivative 

Protein Therapies Antitrust Litig., No. 09 C 7666, 2012 WL 39766, at *6 (N.D. Ill. Jan. 9, 2012) (“While 

the complaint is silent as to how and where the alleged spot market transactions took place, the 

allegation of spot market purchases is the type of general allegation that is sufficient at this stage.”). 

Jurisdictional Discovery 

In the alternative, should the Court determine that Plaintiffs’ allegations are deficient, the 

Court should order jurisdictional discovery. See Crabtree v. Experian Information Solutions, Inc., 948 F.3d 

872, 876 (7th Cir. 2020) (ordering “extensive and complete jurisdictional discovery on whether 

[plaintiff] had alleged the requisite injury-in-fact to satisfy Article III’s case or controversy 

requirement”). As the Court aptly put it, “plaintiffs have argued forcefully and persuasively that the 

structure of the CME Globex system, coupled with restrictions on regulators and third parties 

preventing disclosure of public information about specific trades, make it nearly impossible to plead 

details of specific trades without some discovery from defendants.” ECF No. 49 at 10 (citing ¶¶ 82–

92; In re LIBOR-Based Fin. Instruments Antitrust Litig., 962 F. Supp. 2d 606, 617 (S.D.N.Y. 2013)). 

Defendants have records of their orders and trades in Treasury and Eurodollar futures. Such records 

are regularly maintained by trading firms for financial, compliance and regulatory reasons. Defendants 

likely produced them to the CFTC during the investigation preceding the CFTC Order. 

STATEMENT OF FACTS 

 The Court’s “Summary of the Complaint” set forth the pertinent facts. ECF No. 49 at 2-6. 

Plaintiffs briefly recite them here. 

Defendants’ Manipulation through Spoofing 

During 2013, Defendants were among the largest futures trading firms in the world, and they 

traded Treasury and Eurodollar Futures in multiple offices around the globe. ¶¶ 51-53. Defendants 

manipulated Treasury and Eurodollar futures markets through a tactic known as “spoofing.” ¶¶ 72-

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73. Defendants placed genuine orders (orders they wanted filled) alongside spoof orders (orders they 

intended to cancel) in the market. ¶¶ 45-47; 72-73. The purpose of the spoof orders was to artificially 

move the market price up or down. ¶45. After their genuine orders were filled, Defendants canceled 

their spoof orders. ¶¶ 72-73. 

The CFTC was alerted to Defendants spoofing and launched an investigation into their illicit 

acts. ¶ 4. On June 18, 2020, the CFTC issued an Order accepting Defendants offer to cease and desist 

from spoofing and to pay a $1.25 million penalty. ¶ 4. The CFTC Order indicates that spoofing was 

a systematic problem within Deutsche Bank. ¶ 80-81. Unlike some other regulatory orders, here, the 

CFTC Order does not enumerate examples of spoofing. Instead, it states that “on multiple 

occasions,” a Tokyo-based trader (“Trader A”) spoofed the Treasury Futures market primarily—but 

not exclusively—during New York overnight hours. ¶¶ 74, 78. Also, on “multiple occasions,” another 

Tokyo-based trader spoofed the Treasury and Eurodollar Futures primarily—but not exclusively—

during New York overnight hours. ¶¶ 75, 78. 

Nothing in the CFTC Order suggests that Defendants’ spoofing was infrequent or even 

limited to the “multiple occasions” generally referenced therein. Instead, as the Court observed, 

“Plaintiffs allege a culture of rampant spoofing prevailed throughout DBSI’s trading offices 

worldwide.” ECF No. 49 at 5 (citing ¶ 57). The Court also explained that “Plaintiffs add that 

investigations of alleged trading misconduct and manipulation by defendants in other markets around 

the same time show that defendants maintained a corporate culture that encouraged spoofing and 

manipulation.” Id. at 5 (citing ¶¶ 57–71). 

Plaintiffs’ Trading 

Plaintiffs traded during the same period that Defendants spoofed the Treasuries and 

Eurodollar Futures markets. As the Court observed, in 2013, Plaintiffs allege that they “regularly 

transacted” in Treasury and Eurodollar futures. ECF No. 49 at 2 (citing ¶¶ 11–17, 31). Plaintiffs 

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traded “‘regularly,’ on ‘hundreds of days,’ or, in the case of plaintiffs Rock Capital Markets, LLC, and 

Atlantic Trading USA, LLC, on every trading day during the one-year class period.” Id. (quoting ¶¶ 

11–16). Indeed, Rock Capital and Atlantic Trading are proprietary trading firms that trade around the 

clock. ¶¶ 11, 16-17. Rowan traded Eurodollar futures on all but two trading days (a total of 3,930,522 

contracts) during 2013. ¶15. Plaintiffs Proctor, RCA, and Vecchione “regularly” traded Treasury and 

Eurodollar futures in 2013. ¶¶ 12, 14. Collectively, Plaintiffs transacted in Treasury and Eurodollar 

Futures on all trading days for 23 hours a day during 2013. ¶ 17. Plaintiffs further alleged that they 

earned lower profits and/or suffered losses as a result of Defendants’ manipulation through spoofing. 

¶¶ 11-18. 

Defendants’ Non-Public Records 

As the Court observed, “futures market participants based trading decisions on CME Globex’s 

electronic ‘Order Book.’ The order book displays quantities of anonymous orders or offers to sell 

futures contracts and bids to buy futures contracts at various price points or ‘levels.’” ECF No. 49 at 

3 (citing ¶ 33). “Market participants can see the number of orders and total number of contracts on 

which traders are offering or bidding in the order book, but the quotes entered in the book are 

anonymous. As relevant here, traders cannot determine from the order book whether the same trader 

is placing serial orders to buy and sell.” Id. (citing ¶ 34). Accordingly, Plaintiffs could not have simply 

looked at the historical order book to determine precisely when Defendants’ manipulation by spoofing 

occurred. 

As the Court observed, Plaintiffs “have argued forcefully and persuasively that the structure 

of the CME Globex system, coupled with restrictions on regulators and third parties preventing 

disclosure of public information about specific trades, make it nearly impossible to plead details of 

specific trades without some discovery from defendants.” Id. at 10 (citing ¶¶ 82–92; In re LIBOR-Based 

Fin. Instruments Antitrust Litig., 962 F. Supp. 2d at 617). Plaintiffs allege that they “‘will be able to 

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ascertain the full extent of Deutsche Bank’s spoofing misconduct in Treasury and Eurodollar futures 

only after they are given access to Deutsche Bank’s trading data concerning these instruments.’” Id.

(quoting ¶ 92). 

ARGUMENT

I. Plaintiffs’ Plead Article III Standing. 

Article III requires plaintiffs to allege: (1) injury-in-fact; (2) traceability; and (3) redressability. 

See Lujan, 504 U.S. at 560–61. When analyzing standing, at the pleadings stage, Courts are to 

“presum[e] that general allegations embrace those specific facts that are necessary to support the 

claim.” Id. at 561. Article III standing does not require establishing statutory standing, nor does Article 

III standing require success on the merits of Plaintiffs’ substantive claim. Loeb Indus., Inc. v. Sumitomo 

Corp., 306 F.3d 469, 480–81 (7th Cir. 2002). Importantly, plaintiffs need only allege a “colorable” 

claim of injury, causation and redressability; requiring specifics improperly delves into the merits. 

Booker-El v. Superintendent, Ind. State Prison, 668 F.3d 896, 900 (7th Cir. 2012) (“Were we to require more 

than a colorable claim, we would decide the merits of the case before satisfying ourselves of 

standing.”); see also Protect Our Parks, Inc. v. Chicago Park Dist., 971 F.3d 722, 736 (7th Cir. 2020). In 

class actions, it is not required that all class representatives establish Article III standing for the Court 

to retain subject matter jurisdiction. Kohen v. Pac. Inv. Mgmt. Co. LLC, 571 F.3d 672, 676 (7th Cir. 2009); 

In re Dairy Farmers of Am., Inc. Cheese Antitrust Litig., No. 9 CV 3690, 2015 WL 3988488, at *25 (N.D. 

Ill. June 29, 2015).

Defendants’ argument that Plaintiffs should plead specific details of Plaintiffs’ and 

Defendants’ trades is both factually incorrect and procedurally improper. Plaintiffs allege that they 

regularly traded Treasury and Eurodollar Futures at artificial prices during 2013, and they also allege 

that Defendants spoofed the markets for those instruments during 2013 on multiple 

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occasions. Plaintiffs thus sufficiently allege injury-in-fact that is fairly traceable to Defendants’ 

spoofing. 

There is no need for the particularity that Defendants seek. Spoofing creates effects that go 

beyond moving one specific contract price at one specific time in one specific amount. Widespread 

spoofing, as alleged here, causes durable distortions in market prices. The precise effect is a question 

of fact that cannot be resolved against Plaintiffs at this stage. Moreover, the argument that Plaintiffs 

did not trade in an artificial market because they have not alleged specific trades calls for an 

impermissible inference against Plaintiffs. See In re Crude Oil Commodity Futures Litigation, 913 F. Supp. 

2d 41, 60 (S.D.N.Y. 2012) (unlike in the securities context, there is no “bright line indicating when 

losses begin or cease to accrue” in “the context of a CEA manipulation claim,” and “the period during 

which the manipulative activity occurs is not necessarily a proxy for the period when losses attributable 

to artificial prices occur” and this is why CEA plaintiffs need not plead “the date and price of the 

specific [futures contracts] they bought and sold, and specific losses from those transactions.”); see also 

Gelboim v. Bank of Am. Corp., 823 F.3d 759, 782-83 (2d Cir. 2016) (“The net impact of a tainted LIBOR 

... is an issue of causation reserved for the proof stage; at this stage, it is plausibly alleged ... that a 

manipulation of LIBOR exerted some influence on price. The extent of that influence ... [is a] 

matter[] reserved for later.”). The frequency with which Plaintiffs traded and with which Defendants 

spoofed together support the inference that during 2013, a Plaintiff’s trade occurred while the market 

was distorted by Defendants’ spoofing. 

A. Injury-in-Fact. 

Establishing injury-in-fact is a “minimal requirement[]” at the pleadings stage. Diedrich v. Ocwen 

Loan Servicing, LLC, 839 F.3d 583, 590 (7th Cir. 2016). The “mere showing of harm will establish the 

necessary injury” to establish injury-in-fact. Gelboim v. Bank of Am. Corp., 823 F.3d at 770. Thus, 

pleading a “financial injury creates standing.” Remijas v. Neiman Marcus Grp., LLC, 794 F.3d 688, 695 

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(7th Cir. 2015). Indeed, injury is “presumed,” where, as here, Plaintiffs traded in an artificial market. 

In re Amaranth Natural Gas Commodities Litig., 269 F.R.D. 366, 380 (S.D.N.Y. 2010) (citing Kohen v. Pac. 

Inv. Mgmt. Co. LLC, 244 F.R.D. 469, 475 (N.D. Ill. 2007), aff’d, 571 F.3d 672 (7th Cir. 2009). Injuryin-fact may be sufficiently pled “even if it strikes [the court] ‘that actual proof of those facts is 

improbable, and that a recovery is very remote and unlikely.’” Diedrich, 839 F.3d at 590. 

Plaintiffs are only obliged to plead “enough facts to make their claim of injury colorable.” See 

Harry, 889 F.3d at 111. In assessing Article III standing, the Plaintiff “receives the benefit of 

imagination, so long as the hypotheses are consistent with the complaint.” Robertson v. Allied Sols., 

LLC, 902 F.3d 690, 695 (7th Cir. 2018) (“Complaints need not delineate every detail of the plaintiff's 

legal theory.”). Many courts have held that “injury” for Article III standing purposes is satisfied with 

general allegations of trading during the general period in question. See, e.g., In re Plasma-Derivative 

Protein Therapies, 2012 WL 39766, at *6 (“While the complaint is silent as to how and where the alleged 

spot market transactions took place, the allegation of spot market purchases is the type of general 

allegation that is sufficient at this stage”); see also IQ Dental Supply, Inc. v. Henry Schein, Inc., 924 F.3d 57, 

64 (2d Cir. 2019) (market participants have the “right to do business in a market undistorted by 

unlawful anticompetitive conduct”); In re LIBOR-Based Fin. Instruments Antitrust Litig. (“LIBOR VII”), 

299 F. Supp. 3d 430, 459 (S.D.N.Y. 2018) (holding that “an injury-in-fact need not be capable of 

sustaining a valid cause of action”).

Plaintiffs satisfy the injury-in-fact requirement by alleging facts indicating that it is “within the 

realm of possibility,” Harry, 889 F.3d at 111, that at least one of their Treasury and Eurodollar futures 

trades occurred while prices were artificial as a result of Defendants’ manipulative spoofing. The 

CFTC Order indicates that the manipulation occurred on “multiple occasions” during 2013. ¶¶ 74-75. 

As alleged, in and around 2013, a “culture of rampant spoofing prevailed throughout DBSI’s trading 

offices worldwide,” ECF No. 49 at 5 (citing ¶ 57). Moreover, “investigations of alleged trading 

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misconduct and manipulation by defendants in other markets around the same time show that 

defendants maintained a corporate culture that encouraged spoofing and manipulation.” Id. (citing 

¶¶ 57–71). 

Also, during 2013, Plaintiffs collectively transacted in the manipulated markets on every 

trading day for 23 hours a day. ¶ 17. Specifically, Rock Capital and Atlantic Trading traded Treasury 

Futures, Eurodollar Futures, or both, on every trading day, and Plaintiff Rowan traded Eurodollar 

Futures on all but two trading days. ¶¶ 11, 15-16. As the Court observed, in 2013, all Plaintiffs 

allege that they “regularly transacted” in Treasury and Eurodollar futures. ECF No. 49 at 2 (citing ¶¶ 

11–17, 31). Given the frequency with which the parties traded during 2013, it is certainly “within the 

realm of possibility” that Plaintiffs traded at artificial prices causing them to earn less profits and/or 

suffer greater losses in Treasury and/or Eurodollar Futures as a direct result of Defendants’ 

manipulative spoofing. ¶¶ 11-16. Any other conclusion would require unreasonable inferences in 

favor of Defendants, rather than drawing the required reasonable inferences in favor of Plaintiffs. If 

anything, it would be implausible to suggest that all Plaintiffs completely avoided the effects of 

Defendants’ spoofing. 

B. Traceability. 

In order to satisfy Article III standing, “there must be a causal connection between the injury 

and the conduct complained of—the injury has to be fairly . . . trace[able] to the challenged action of 

the defendant, and not . . . th[e] result [of] the independent action of some third party not before the 

court.” Lujan, 504 U.S. at 560 (citations omitted). In CEA manipulation cases, traceability is satisfied 

by allegations that the market was artificial because of defendant’s manipulation. See Sanner v. Bd. of 

Trade of City of Chicago, 62 F.3d 918, 925-26 (7th Cir. 1995) (finding traceability where plaintiffs alleged 

suppression of the soybean market); In re Commodity Exch., Inc., 213 F. Supp. 3d 631, 650 (S.D.N.Y. 

2016) (traceability existed where plaintiffs allegedly sold gold at artificial prices). 

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Plaintiffs’ injuries are fairly traceable to Defendants’ misconduct because Plaintiffs allege a 

direct link between their losses and Defendants’ spoofing. Plaintiffs allege that as a result of 

Defendants’ manipulative spoofing, Plaintiffs transacted in Treasury and Eurodollar Futures at 

artificial prices, which caused them to suffer damages. ¶¶ 11-17, 74-75, 113. These allegations satisfy 

Article III’s traceability requirement. See In re Chicago Bd. Options Exch. Volatility Index Manipulation 

Antitrust Litig., 390 F. Supp. 3d 916, 928 (N.D. Ill. 2019) (“Plaintiffs have alleged that Cboe and the 

Does manipulated the VIX, causing plaintiffs—who purchased and sold VIX-related products—to 

lose money. Damages would remedy that injury, and at this stage, this is enough”); Sanner, 62 F.3d at 

926 (“[I]f we accept as true the farmers’ allegation that the Resolution, causing a mass liquidation of 

soybean futures contracts, prompted a drop in the cash price of soybeans, they have adequately alleged 

traceability.”). 

C. Redressability. 

“Generally, any person whose injury can be redressed by a favorable judgment has standing 

to litigate, and injuries compensable in monetary damages can always be redressed by a court 

judgment.” Wernsing v. Thompson, 423 F.3d 732, 745 (7th Cir. 2005). Plaintiffs satisfy the redressability 

element of Article III standing because they seek to recover damages for losses they suffered as a 

result of Defendants’ violations of the CEA and unjust enrichment resulting from their manipulation 

of the U.S. Treasury and Eurodollar Futures markets. 

Because Plaintiffs have alleged the elements of Article III standing, jurisdictional discovery is 

“unnecessary.” Equal Rts. Ctr. v. Camden Prop. Tr., No. CIV. PJM07-2357, 2008 WL 8922896, at *7 n.9 

(D. Md. Sept. 22, 2008). 

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II. If the Court Holds Plaintiffs’ Allegations to Be Deficient under Article III, the Court 

Should Order Jurisdictional Discovery. 

If the Court determines that it cannot proceed with the present allegations bearing on Article 

III standing, then jurisdictional discovery is warranted. As the Supreme Court observed, discovery is 

not “limited to the merits of a case, for a variety of fact-oriented issues may arise during litigation that 

are not related to the merits.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). “For example, 

where issues arise as to jurisdiction or venue, discovery is available to ascertain the facts bearing on 

such issues.” Id. at 351 n.13. The “trial court does have jurisdiction to determine its own jurisdiction,” 

and “it is clear that a court may allow discovery to aid in determining whether it has in personam or 

subject matter jurisdiction.” Wells Fargo & Co. v. Wells Fargo Exp. Co., 556 F.2d 406, 430 n.24 (9th Cir. 

1977). Such discovery is warranted “where pertinent facts bearing on the question of jurisdiction are 

controverted . . . or where a more satisfactory showing of the facts is necessary.” Id. (citations and 

internal quotations omitted). 

A “district court confronted with a factual challenge to its jurisdiction cannot ignore a genuine 

factual dispute simply because it arises at the pleading stage,” but instead must “inquire into its 

jurisdiction,” including “probing and resolving any factual disputes which go to its power to adjudicate 

the matter.” Am. Civ. Liberties Union of Florida, Inc. v. City of Sarasota, 859 F.3d 1337, 1340 (11th Cir. 

2017). The Federal Rules of Civil Procedure “expressly contemplate involvement by the parties in the 

discovery of relevant non-privileged matter,” and “jurisdictional discovery undoubtedly is” such a 

matter. Id. This is “particularly true when jurisdictional facts are intertwined with facts central to the 

merits of the complaint.” Id. “In such cases, a plaintiff must have ample opportunity to present 

evidence bearing on the existence of jurisdiction.” Id. (citations omitted). 

Accordingly, courts routinely allow jurisdictional discovery. For example, in Crabtree, 948 F.3d 

at 876, the district court had ordered “extensive and complete jurisdictional discovery on whether 

[plaintiff] had alleged the requisite injury-in-fact to satisfy Article III’s case or controversy 

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requirement,” which aided the district court’s and Court of Appeals’ determination as to plaintiff’s 

Article III standing. Id. Likewise, in Boim, 9 F.4th at 550, the Seventh Circuit observed that the district 

court had allowed limited jurisdictional discovery into its subject matter jurisdiction, which turned on 

whether defendant was an alter ego, and held that the district court erred when dismissing the suit on 

jurisdictional grounds. In Am. Civ. Liberties Union of Florida, Inc., 859 F.3d at 1341, the Eleventh Circuit 

reversed a district court’s refusal to allow discovery into its subject matter jurisdiction, which turned 

on whether defendant acted in an official capacity necessary to justify federal jurisdiction and made 

clear that a district court “abuses its discretion if it completely denies a party a right to jurisdictional 

discovery.” Id. 

Courts have tailored jurisdictional discovery in a variety of ways depending on the needs of 

the case. In Muellner v. U.S. Bank, N.A., No. 15-CV-0596 PJS/LIB, 2015 WL 4374180, at *1 (D. Minn. 

July 15, 2015), for example, the district court “question[ed] whether, even assuming that defendants 

acted unlawfully in obtaining or issuing force-placed insurance, plaintiffs were harmed in any way by 

defendants’ actions.” It gave the parties “a period of approximately three months to take jurisdictional 

discovery—that is, discovery on whether plaintiffs have Article III standing to pursue their individual 

claims.” Id. Likewise, in Grupo Petrotemex, S.A. DE C.V. v. Polymetrix AG, No. 16-CV-2401 (SRN/HB), 

2019 WL 1230003, at *1 (D. Minn. Mar. 15, 2019), defendant filed a Rule 12(b)(1) motion to dismiss 

for lack of standing, and the district court “noted the paucity of evidence in support of an ‘injury’ that 

was ‘fairly traceable’” to defendants’ conduct.” Id. After “order[ing] the parties to engage in 90 days 

of focused, jurisdictional discovery to determine if evidence existed from which plaintiff [could prove] 

‘injury in fact’ and ‘causation’ under Article III,” the district court “satisfied itself that an actual ‘case 

or controversy’” existed and denied the motion to dismiss. 

Here, pre-existing, non-privileged documents furnished to or by the CFTC (and those in any 

related CME and/or CBOT investigations) would be sought in discovery. To the extent Defendants’ 

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13 

order and trade history is not in those files, the full record of Defendants’ orders, trades and 

cancelations in CBOT Treasury and CME Eurodollar futures during 2013 also would be sought. 

Defendants are in a better position to know what documents reflect these orders, cancelations, and 

trades. At present, Plaintiffs reasonably believe that these documents are readily accessible to 

Defendants and capable of being produced in short order. Even if these documents were not 

produced to the CFTC or exchanges, they were likely compiled in the course of Defendants’ risk 

monitoring, compliance monitoring or investigation into the subject conduct. Plaintiffs anticipate that 

these records have been assembled and disclosed to regulators. Under these circumstances, the type 

of discovery that Plaintiffs propose is reasonable. 

Courts regularly permit pre-motion to dismiss production of documents that were disclosed 

to regulators. See, e.g., In re Liquid Aluminum Sulfate Antitrust Litig., No. 16-md-2687-JLL-JAD (D.N.J. 

July 5, 2016), ECF No. 209 (order requiring production of DOJ documents prior to filing consolidated 

complaints). As one court put it, “plaintiff is simply asking for a transfer of the documents that the 

defendant has already collected, reviewed, produced to the CFTC . . ., all of which can be subject to 

the confidentiality order which the parties have negotiated. So what is the burden? What's the cost? 

The answer is very little.” Anastasio et al v. Total Power North Am., Inc. et al, 15-cv-9689 ECF No. 78 

(S.D.N.Y. Jul. 27, 2016); see also In re Diisocyanates Antitrust Ltig., No. 18-mc-01001, ECF No. 149 (W.D. 

Pa. Jan. 15, 2019) (“the cost of production and the burden of producing the records should be minimal 

due to the previous production; and efficiency and economy is best served by production at this 

time”); In re Platinum & Palladium Commodities Litig., No. 10 Civ. 3617 (WHP), 2010 WL 11578945, at 

*1 (S.D.N.Y. Nov. 30, 2010) (ordering production of 250,000 pages of documents previously 

produced to the CFTC, finding that the production would not be burdensome); Indeed, in the absence 

of these documents, it is Plaintiffs who would be prejudiced. See In re Bank of Am. Corp. Sec., No. 09 

MDL 2058(DC), 2009 WL 4796169, at *3 (S.D.N.Y. Nov. 16, 2009) (“Without access to documents 

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14 

produced in these other proceedings, plaintiffs in these cases will be unduly prejudiced and will be less 

able to make informed decisions about litigation strategy.”). 

Plaintiffs will meet-and-confer with Defendants regarding the scope of the foregoing should 

the Court order jurisdictional discovery. 

CONCLUSION 

For the foregoing reasons, Plaintiffs have established their Article III standing on the 

pleadings. Alternatively, leave to take jurisdictional discovery of Defendants should be granted. 

Dated: October 11, 2021 

Respectfully Submitted, 

/s/ Vincent Briganti 

LOWEY DANNENBERG, P.C. 

Vincent Briganti 

Raymond P. Girnys 

Peter A. Barile III 

44 South Broadway, Suite 1100 

White Plains, NY 10601 

Tel.: (914) 997-0500 

Email: vbriganti@lowey.com 

rgirnys@lowey.com 

pbarile@lowey.com 

Interim Co-Lead Counsel for the Proposed Class 

CAFFERTY CLOBES MERIWETHER 

 & SPRENGEL LLP 

Anthony F. Fata 

Jennifer W. Sprengel 

Brian P. O’Connell 

Kaitlin Naughton 

150 S. Wacker, Suite 3000 

Chicago, IL 60606 

Tel.: 312-782-4880 

Email: afata@caffertyclobes.com 

jsprengel@caffertyclobes.com 

boconnell@caffertyclobes.com 

knaughton@caffertyclobes.com 

Interim Co-Lead Counsel for the Proposed Class 

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15 

KIRBY MCINERNEY LLP 

Karen M. Lerner 

David E. Kovel 

Anthony E. Maneiro 

250 Park Avenue, Suite 820 

Tel: 212-371-6600 

Email: klerner@kmllp.com 

dkovel@kmllp.com 

amaneiro@kmllp.com 

Counsel for Plaintiff Charles Herbert Proctor, III 

FREED KANNER LONDON & MILLEN 

 LLC 

Steven A. Kanner 

Douglas A. Millen 

Brian M. Hogan 

2201 Waukegan Road, Suite 130 

Bannockburn, IL 60015 

Tel: (224) 632-4500 

Fax: (224) 632-4521 

skanner@fklmlaw.com 

dmillen@fklmlaw.com 

bhogan@fklmlaw.com 

Counsel for Plaintiff David Vecchione 

KOREIN TILLERY LLC 

George A. Zelcs (Ill. Bar No. 3123738) 

Randall P. Ewing, Jr. (Ill. Bar No. 6294238) 

Chad E. Bell (Ill. Bar No. 6289034) 

205 North Michigan Plaza, Suite 1950 

Chicago, IL 60601 

Telephone: (312) 641-9750 

Facsimile: (312) 641-9751 

Email: gzelcs@koreintillery.com 

Email: rewing@koreintillery.com 

Email: cbell@koreintillery.com 

SCOTT+SCOTT ATTORNEYS AT LAW 

 LLP

Louis F. Burke 

Thomas K. Boardman 

The Helmsley Building 

230 Park Avenue, 17th Floor 

New York, NY 10169 

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16 

Telephone: (212) 233-6444 

Facsimile: (212) 233-6334 

Email: lburke@scott-scott.com 

Email: tboardman@scott-scott.com 

SCOTT+SCOTT ATTORNEYS AT LAW 

 LLP 

Christopher M. Burke 

600 W. Broadway, Suite 3300 

San Diego, CA 92101 

Telephone: (619) 233-4565 

Facsimile: (619) 233-0508 

Email: cburke@scott-scott.com 

Counsel for Plaintiff Robert Charles Class A, L.P. 

GRABAR LAW OFFICE 

Joshua H. Grabar, Esq. 

1650 Market Street, Suite 3600 

Philadelphia, PA 19103 

Tel.: (267) 507-6085 

Email: jgrabar@grabarlaw.com 

EDELSON LECHTZIN LLP 

Marc H. Edelson, Esq. 

Edelson Lechtzin LLP 

3 Terry Drive, Suite 205 

Newtown, PA 18940 

Tel.: (215) 867-2399 

Email: medelson@edelson-law.com 

Counsel for Plaintiff Todd Rowan 

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CERTIFICATE OF SERVICE 

 I, Vincent Briganti, an attorney, hereby certify that on October 11, 2021, service of the 

foregoing Plaintiffs’ Opening Brief in Support of Article III Standing or Limited Jurisdictional 

Discovery was accomplished pursuant to ECF as to Filing Users and I shall comply with LR 5.5 as 

to any party who is not a Filing User or represented by a Filing User. 

 s/ Vincent Briganti 

 Vincent Briganti 

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