UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

MISH INTERNATIONAL MONETARY,

INC., on behalf of itself and all others similarly 

situated,

v.

VEGA CAPITAL LONDON, LTD., et al. 

Case No. 1:20-cv-04577

Judge Manish S. Shah

PLAINTIFF’S OPPOSITION TO THE TRADER DEFENDANTS’ 

RULE 26(c) MOTION TO STAY ALL REMAINING FACT DISCOVERY

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TABLE OF CONTENTS

I. THE REMAINING DISCOVERY OF THE DEFENDANTS AND CERTAIN NONPARTY DISCOVERY ARE “CENTRAL TO THE MERITS OF AN INDIVIDUAL 

CLAIM” AND WILL OCCUR “NO MATTER WHAT” .......................................1

A. In Order To Prove The Elements Of Its Claims Against The Named Defendants, 

Plaintiff Needs At Least The Depositions Of The Named Defendants Themselves, 

And Other Discovery.........................................................................1

1. Plaintiff Needs The Depositions Of The Named Defendants In Order To 

Prove The Scienter And Conduct Elements Of Its Claims Against Such 

Defendants...............................................................................1

2. Plaintiff Needs To Complete Non-Party Discovery Relating To Deliverable 

Supply.....................................................................................4

3. Certain Of Plaintiff’s Non-Party Discovery Is Not Directly Related to 

Plaintiff’s Individual Claims.............................................................4

4. Defendants Themselves Say That They Would Pursue Their Outstanding 

Non-Party Discovery Regardless Of Whether They Face Plaintiff Or The 

Entire Class...............................................................................4

II. REINFORCING THE COURT’S ANALYSIS DURING THE SEPTEMBER 26 STATUS 

CONFERENCE, THERE ARE MANY ADDITIONAL REASONS WHY A STAY OF 

DISCOVERY SHOULD BE DENIED ...........................................................5

A. Defendants Have Not Satisfied Their Movant’s Burden to Demonstrate The “Good 

Cause” Required for a Stay..................................................................5

B. Defendants’ Motion Does Not Cite A Single Decision That Stayed Discovery 

Pending Resolution of a Rule 23 Class Motion, Whereas Numerous Decisions In 

this Circuit Have Denied Stays ...............................................................7

C. Plaintiff Will Be Prejudiced by A Stay of the Remaining Fact Discovery That Will 

Occur “No Matter What”....................................................................8

D. Defendants’ Opposition To Class Certification Is Far From “Compelling”..........11

CONCLUSION...........................................................................................12

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Pursuant to the Court’s instructions during the September 26, 2024 Status Conference and 

the Court’s Order dated September 26, 2024 (ECF No. 393), Plaintiff Mish International Monetary, 

Inc. (“Plaintiff”) respectfully submits this response to the Trader Defendants’ Rule 26(c) motion 

requesting a protective order that stays all remaining fact discovery until after Plaintiff’s Rule 

23(b)(3) class certification motion is resolved. ECF No. 387 (“Motion”). 

The Court stated as follows during the September 26 Status Conference:

I would like a brief from the plaintiff laying out what discovery you think, on behalf 

of plaintiff, is going to be central to [the] merits of an individual claim, no matter what, 

in addition to whatever other arguments you want to make about why it doesn’t make 

any sense to stay discovery at this point in the case.

ECF No. 395 (September 26, 2024 Transcript of Proceedings) at 14:15-20. Accordingly, Plaintiff 

sets forth below (1) discovery central to the merits of Plaintiff’s claims that will occur “no matter 

what” (see “I” below) and (2) additional reasons why it does not make sense to stay (and Defendants 

have woefully failed their burden to show that there should be a stay of) the remaining fact 

discovery. See “II” below.

I. THE REMAINING DISCOVERY OF THE DEFENDANTS AND 

CERTAIN NON-PARTY DISCOVERY ARE “CENTRAL TO THE 

MERITS OF AN INDIVIDUAL CLAIM” AND WILL OCCUR “NO 

MATTER WHAT”

A. In Order To Prove The Elements Of Its Claims Against The Named Defendants, 

Plaintiff Needs At Least The Depositions Of The Named Defendants 

Themselves, And Other Discovery

1. Plaintiff Needs The Depositions Of The Named Defendants In Order To 

Prove The Scienter And Conduct Elements Of Its Claims Against Such 

Defendants

“Central” to the merits, and necessary to prove the elements of Plaintiff’s individual claims

are the depositions of the named Defendants. Pursuant to the indication or order of the Court dated 

July 15, 2024 (ECF No. 368), the Trader Defendants proposed a series of dates for the remaining 

depositions of the Trading Defendants during the weeks of November 4 and November 18, 

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respectively. Declaration of Christopher McGrath, Esq. (“McGrath Decl.”), at ¶4. On September 

19, Plaintiff agreed to the dates for the three depositions during the week of November 4. Id. ¶5. On 

September 25, Plaintiff also agreed to the dates for the three depositions during the week of 

November 18. Id. ¶8. 

Plaintiff respectfully submits that those depositions should go forward on the dates offered 

by Defendants (or very soon thereafter on mutually agreed upon dates).

In order to prove its claims, Plaintiff also needs the depositions of the remaining two named 

Defendants: Vega Capital London, Ltd., (“Vega”) and Defendant Adrian Spires (“Spires”). See infra. 

After the Court’s ruling on Defendants’ stay motion, Plaintiff will promptly negotiate appropriate 

dates with counsel for Vega and Spires.

During the September 26, 2024 Status Conference, Defendants conceded Plaintiff would 

have a “right” to take depositions of each Defendant if this were an individual action, and further

seemed to concede that such depositions thus would occur regardless of the outcome of the class 

motion. ECF No. 395 at 12:15-16. 

“The Court:...why wouldn’t plaintiff still need some information from Vega, say, in 

the form of a 30(b)(6) deposition, to prove plaintiff’s individual case?...

Mr. Kelly: Well, they might need something along those lines...that’s just one 

deposition...That may be necessary...There may be a few depositions.” 

Id. at 7:24-9:5. 

“The Court:...Let me turn to the trader defendants and ask them whether their 

depositions...would have to happen anyway, even if this were a single-plaintiff case as 

opposed to a class action?...

Mr. Mazur:...if there was a $30,000 or $90,000 claim, it’s been my experience that 

there may not be as many depositions taken even, if as a formal matter, you might 

have the right to depose every defendant for a full day.”

Id. at 11:25-12:16

Consistent with the Court’s analysis and questions at the September 26 hearing, the Court 

previously recognized in January 2023 that depositions of the individual defendants “would be the 

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merits discovery that would take place whether or not a class is certified.” ECF No. 203 (Transcript 

of Proceedings January 26, 2023) at 18:8-21. The Trader Defendants, who were seeking to bifurcate 

class and merits discovery at the time, appeared to agree with the Court. Id. at 19:6-21.

Plaintiff needs Defendants’ depositions to prove on the merits the elements of Plaintiff’s 

“eminently plausible”1 claims under the Sherman Antitrust Act, 15 U.S.C. §1, et seq. (“Sherman 

Act”), the Commodity Exchange Act, 7 U.S.C. §1, et seq. (“CEA”), and common law unjust 

enrichment. These elements include (1) a contract, combination, or conspiracy to fix or depress 

prices;2 or (2) specific intent to manipulate prices;3 or (3) aided and abetted the violations by others.

4

Plaintiff needs the depositions of Defendants to obtain facts from which the foregoing

liability-sufficient scienter and liability-sufficient conduct may be inferred. Thus, the depositions of 

the named Defendants are both “central to the merits of an individual claim” by Plaintiff, and must 

occur “no matter what”. ECF 395 at 14:5-14:20.

Plaintiff must make (when permitted by the Court) a motion to compel Defendants Vega 

and Spires to produce certain documents responsive to requests to which such Defendants have 

consistently objected. ECF No. 395. Despite approximately ten separate productions and scores of 

meet and confers, Plaintiff has reached impasse with Vega and Spires regarding certain categories of 

documents. Plaintiff’s counsel believe the unresolved objections relate to the documents which are 

potentially the most probative of conspiracy, manipulative intent, and knowledge, i.e., the 

1 Mish Int’l Monetary Inc. v. Vega Cap. London, Ltd., 596 F. Supp. 3d 1076, 1093 (N.D. Ill. 2022) (“Mish I”). 

Proof of Plaintiff’s individual claims will prove the claims of all Class members. See, e.g., ECF No. 311 at 13-

14; ECF No. 390 at 13-14, 21-22. 2 Mish I, 596 F. Supp. 3d at 1092-93.

3 Id. at 1095.

4 Id. at 1097-98.

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unproduced documents are potentially the most inculpatory documents. See ECF No. 395 at 9:1-3; 

9:17-20; 11:14-17.5

2. Plaintiff Needs To Complete Non-Party Discovery Relating To Deliverable 

Supply 

Plaintiff is continuing its meet and confers to negotiate a very small number of Rule 45 

document subpoenas previously issued to entities that operated pipeline and storage facilities in 

Cushing, Oklahoma—the physical delivery point for the New York Mercantile Exchange 

(“NYMEX”) WTI crude oil futures contract. These subpoenas seek information concerning certain 

crude oil supply and demand factors and, accordingly, relate to Defendants’ defenses and/or to 

Plaintiff’s individual claim.

3. Certain Of Plaintiff’s Non-Party Discovery Is Not Directly Related to 

Plaintiff’s Individual Claims

Certain non-party subpoenas issued by Plaintiff in August 2024 were motivated primarily by 

class certification and document preservation purposes, and not the merits of Plaintiff’s individual 

claims. In their joint opposition to class certification, Defendants (incorrectly) argued Plaintiff 

supposedly must identify all Class members, identify all Class member trades, and calculate damages

for all Class members to satisfy Rule 23(b)(3). ECF No. 390 (class certification reply brief) at 33-36. 

Although this is not the law and no prior CEA manipulation case granting certification has ever 

required such proof, Plaintiff nevertheless undertook to obtain and preserve this information from 

fifty-two NYMEX clearing firms. Id. at 49-51. If the Court is inclined to stay discovery that may 

not be directly related to Plaintiff’s individual claims, enforcement of these subpoenas may be stayed

provided that the subpoenaed non-parties ensure preservation of the requested documents and data.

4. Defendants Themselves Say That They Would Pursue Their Outstanding 

Non-Party Discovery Regardless Of Whether They Face Plaintiff Or The 

Entire Class. 

5 Plaintiff may also seek to use other discovery devices (e.g., requests for admissions or interrogatories) to help 

establish Plaintiff’s individual as well as the Class’ claims before the end of merits discovery.

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Defendants have outstanding Rule 45 document and deposition subpoenas and have 

identified additional non-party discovery they may wish to pursue. Motion, ¶¶1-3. During the 

September 26 Status Conference, Defendants indicated that at least some of the non-party discovery 

they are currently seeking would occur regardless of how the Court rules on Plaintiff’s class motion. 

ECF No. 395 at 14:5-12 (“The Court: And why wouldn’t you be pursuing the CME and 

clearinghouse subpoenas no matter what happens with class certification? Mr. Mazur: We might, we 

might...I think we probably would pursue those two.”) [emphasis added]. Plaintiff respectfully 

submits that Defendants’ intention to complete their outstanding discovery even if they face only 

Plaintiff’s individual claim, severely undercuts Defendants’ premise for a stay pending the outcome 

of the class motion.

****

For the foregoing reasons, the remaining discovery Plaintiff must take from the Defendants, 

and even certain non-party discovery currently underway, will need to occur regardless of the 

outcome of Plaintiff’s class motion. See “1”, “2”, and “4” above. And Defendants themselves admit 

that their outstanding discovery will occur regardless of whether the case proceeds as a class or 

individual action. Accordingly, based upon the statements of both Plaintiff and Defendants, there is 

no “good cause” for staying this inevitable discovery because it will not result in any cost savings 

and, moreover, continued delay risks prejudice to Plaintiff. See “II” below. If the Court is inclined 

to entertain a stay while it considers Plaintiff’s class motion, Plaintiff respectfully submits that any 

such stay should be limited to non-party discovery that is not directly related to the merits of 

Plaintiff’s individual claims nor to Defendants’ defenses to Plaintiff’s claims. See “3” above.

II. REINFORCING THE COURT’S ANALYSIS DURING THE 

SEPTEMBER 26 STATUS CONFERENCE, THERE ARE MANY 

ADDITIONAL REASONS WHY A STAY OF DISCOVERY SHOULD BE 

DENIED 

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In addition to the fact that the currently outstanding discovery of both Plaintiff and 

Defendants concerning the merits of Plaintiff’s claims is inevitable, there are numerous additional 

reasons which strongly militate against a stay.

A. Defendants Have Not Satisfied Their Movant’s Burden to Demonstrate The 

“Good Cause” Required for a Stay

The Trader Defendants have not satisfied their movant’s burden to demonstrate “good 

cause” for their requested Rule 26(c) protective order that would stay all fact discovery and require 

modification of the Court’s Rule 16 scheduling order (ECF No. 201). Fed. R. Civ. P. 26 (protective 

order requires a showing of “good cause”); see also Nicholson v. Nationstar Mortg. LLC of Delaware, 17-

cv-1373, 2018 WL 3344408, at *4 (N.D. Ill. July 6, 2018) (“‘if there is even a fair possibility that the 

stay...will work damage to someone else,’” the movant “‘must make out a clear case of hardship or 

inequity in being required to go forward.’”); Fed. R. Civ. P. 16(b)(4) (“A schedule may be modified 

only for good cause and with the judge’s consent.”).6

The Trader Defendants have attempted to show good cause in only one way: by asserting

that the “significant expense” of the remaining discovery will be “entirely wasted” if the Court 

denies Plaintiff’s Rule 23 class motion. Motion at ¶¶1, 3. But this is incorrect. As demonstrated 

above, the remaining party discovery and even certain non-party discovery (including that sought by 

Defendants themselves) will occur regardless of whether the class is certified because all such 

discovery relates directly to Plaintiff’s sustained individual claims against Defendants. See “I” above. 

Moreover, the Trader Defendants have not even attempted to estimate or otherwise substantiate the 

“significant expenses” that are the sole justification for the Rule 26(c) protective order they seek. 

Compare Harper v. Cent. Wire, Inc., 19-cv-50287, 2020 WL 5230746, at *4 (N.D. Ill. Sept. 2, 2020) 

6 The Trader Defendants’ Motion was filed pursuant to Rule 26(c) and required compliance with Local Rule 

37.2. Motion at 1. However, the only consultation the Trader Defendants attempted was an e-mail request 

for Plaintiff’s “position” a few hours before they filed their Rule 26(c) Motion. 

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(“Defendants do not provide any estimate of the cost associated with responding to the discovery, 

nor do they provide an affidavit or other support for their allegation of undue burden. Courts in 

this circuit find that broadly decrying the time and expense that is expected to be associated with 

responding to discovery, without any substantiation, does not establish good cause for staying 

discovery.”); Federal Practice and Procedure, Wright & Miller (3d ed.), § 2035 (“courts have insisted 

on a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory 

statements, in order to establish good cause”).

In stark contrast, Plaintiff has submitted a declaration demonstrating that the Trading 

Defendants offered dates for all of their remaining depositions. McGrath Decl. ¶4. Only after the 

Plaintiff had locked in Defendants’ first proposed week of depositions (and shortly before Plaintiff 

locked in Defendants’ proposed second week of depositions), did the Trading Defendants announce 

that they were going to move for a stay. Specifically, at 5:47 am EDT on September 25, Defendant 

asked Plaintiffs position on a stay of discovery. McGrath Decl. ¶7 (Defendants letter first raising a 

stay was sent at 5:47 am EDT on September 25, i.e., only a few hours after Plaintiff had submitted

its reply and rebuttal papers). 

B. Defendants’ Motion Does Not Cite A Single Decision That Stayed Discovery 

Pending Resolution of a Rule 23 Class Motion, Whereas Numerous Decisions In 

this Circuit Have Denied Stays 

In addition to the absence of the required factual showing, Defendants also fail to cite a 

single decision that stayed discovery pending resolution of a Rule 23 class motion. Motion, passim.

7

 

Defendants’ failure to cite cases is reminiscent of their “time capsule” brief of their motion to stay 

discovery in 2023 which cited to no case decided after 2013. ECF No. 203 at 10:6-11.

7 The Trader Defendants Motion cites three cases, only one of which involved a motion to stay discovery. 

Motion at ¶¶3, 4, 7. However, the requested stay in Rao v. JPMorgan Chase Bank, N.A., concerned a Rule 

12(b)(6) motion to dismiss an individual action, and did not concern a stay pending a Rule 23 class 

certification motion. Rao, 21-cv-1361, 2021 WL 4927415, at *1 (N.D. Ill. May 12, 2021). 

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Courts, including this one, have repeatedly denied stays of discovery pending class 

certification. First, this Court denied a request by Defendants for a stay of merits discovery pending 

resolution of Plaintiff’s class motion in January 2023. Compare ECF No. 198 at 1 with ECF No. 201 

(setting schedule that did not include any stay).8 Also, other district courts in this Circuit have 

repeatedly denied requests for stays of discovery pending resolution of Rule 23 motions. E.g., Fillipo 

v. Anthem Companies, Inc., 22-cv-00926, 2023 WL 3563627, at *2, 4 (S.D. Ind. Feb. 21, 2023) (denying 

motion to stay discovery pending rulings on class certification motions and observing that, 

regardless of type of claim brought forward, “substantially similar materials will have to be 

addressed”); Barker v. Kapsch Trafficcom USA, Inc., 19-cv-00987, 2019 WL 2524247, at *1, 2 (S.D. Ind. 

June 18, 2019) (observing that “[c]ourts disfavor stays of discovery because they bring resolution of 

the dispute to a standstill” and denying request to bifurcate and stay class-wide merits discovery 

pending resolution of motion to dismiss and motion for class certification) (internal citations and 

quotations omitted). 

Plaintiff respectfully submits that this Court’s analysis during the September 26, 2024

conference is strongly reinforced by Defendants’ failures to cite any pertinent cases granting similar 

relief to that requested by Defendants, and Defendants’ failure to submit any facts that would carry 

their burden to obtain the relief of a stay. 

C. Plaintiff Will Be Prejudiced by A Stay of the Remaining Fact Discovery That Will 

Occur “No Matter What”

In this Circuit, the passage of time resulting from a stay has repeatedly been recognized as 

prejudicial to the non-moving party. See, e.g., Solly Ringo’s LLC v. Soc’y Ins., 22-cv-50054, 2022 WL 

16961447, at *2, *4 (N.D. Ill. Nov. 16, 2022) (“Plaintiff argues that [a stay of discovery] ‘would 

8 The Trader Defendants try to suggest they sought only bifurcation of class and merits discovery in January 

2023. Motion at ¶7(a). But the very first sentence of their January 2023 motion specifically requests “staying 

merits discovery until class certification is decided.” ECF No. 198 at 1.

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require substantial duplication of attorney effort as memories fade’... there is... a fair possibility that 

a stay will prejudice Plaintiff in light of the parties’ ongoing meet and confer efforts [and] the Court 

finds that Defendant has not shown good cause for a stay... Defendant’s motion to stay discovery is 

denied.”) (internal citations omitted); Cobbs v. Watson, 18-cv-03205, 2020 WL 6173474, at *1 (C.D. 

Ill. Oct. 21, 2020)(“Watson”) (“Plaintiff argues that... delaying merits discovery will prejudice the 

Plaintiff by making...witnesses more difficult to locate and further removing potential witnesses’ 

memories from the events which precipitated the Complaint [and] the Defendants cannot meet their 

burden of establishing good cause for a stay because they make no argument aside from their 

reliance on [inapplicable legal precedent], which this Court has already rejected... For the reasons 

stated above, the motion to stay discovery is denied.”); AOT Holding AG v. Archer Daniels Midland 

Co., 19-cv-2240, 2020 WL 1472266, at *1 (C.D. Ill. Jan. 22, 2020) (“There is some evidence that a 

stay will unduly prejudice or tactically disadvantage the non-moving party (i.e. AOT) in this matter... 

A stay of discovery could cause evidence to be lost at the expense of AOT. Specifically, the 

memories of witnesses might fade before they are deposed...).

Continuing to try to temporize and run the clock against Plaintiff, Defendants suggest that 

Plaintiff can simply restart all the stayed discovery after resolution of the class motion without any 

additional costs, burdens, or disadvantages. Motion, ¶¶6-7. But, four and a half years will very soon 

have passed since April 20, 2020. The class certification portion of the case has now been fully 

prioritized. Plaintiff now needs to take the depositions of the named Defendants in order to avoid 

(or mitigate to the greatest extent feasible) any “I don’t recall” responses from Defendants Vega 

Capital and Spires. The Trading Defendants’ implication during the hearing that the Court should 

wait until more than five years after the events at issue for the Trading Defendants’ depositions to 

go forward, serves no proper purpose. On the contrary, it only further greatly increases the risk of “I 

don’t recall” responses to questions.

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Separately, courts have also recognized that the burden of restarting discovery after delays is 

itself a prejudice. Compare e.g., Watson, 2020 WL 6173474 at *1 (“further removing potential 

witnesses’ memories from the events which precipitated” the claim is one type of prejudice) with

Solly Ringo’s, 2022 WL 16961447, at *2, *4 (“Plaintiff argues that [a stay of discovery] ‘would require 

substantial duplication of attorney effort as memories fade’).

Second, Defendants’ assurances that the duration of the stay will supposedly be “short” and 

“for a limited period” collide with Defendants’ statements indicating that they may or will seek to 

prolong the class certification briefing. Motion, ¶3.9

Third, in Plaintiff’s experience, every single time that a defendant loses the class motion, they 

proceed to file a petition for interlocutory review under Fed.R.Civ.P. 23(f).10 Such petitions may take

9 Defendants have the reserved the right to respond to “new material” or “strike” portions of Plaintiffs’ class 

certification reply submissions and rebuttal expert reports. Motion, ¶3, n. 2; ECF No. 395 at 18:10-19:11. 

Defendants are focused on the number of pages and experts at issue. Id. However, those are not the correct 

standards for evaluating whether a reply brief or rebuttal report are proper. Plaintiff will respond to any 

motions Defendants make in this regard if, as, and when they are made. 

10 In re Term Commodities Cotton Futures Litig., 12-cv-5126, 2022 WL 485005 (S.D.N.Y. Feb. 17, 2022), (certified 

CEA and Sherman Act class included two cotton futures contracts and “cotton on call” contracts involving 

physical cotton during a non-consecutive, 66-day class period and where class included intraday traders, 

spread traders, cotton merchants, hedgers, and speculators, as well as cash market participants), petition for 

review denied, 22-472 (2d Cir. 2022); Ploss v. Kraft Foods Grp., Inc., 431 F. Supp. 3d 1003 (N.D. Ill. 2020) (certified 

CEA and Sherman Act class included two wheat futures contracts and dozens of different option contracts 

on such wheat futures contracts during 43-day class period and where class included intraday traders, spread 

traders, hedgers, wheat millers, and speculators) petition for review denied, No. 20-8001 (7th Cir. 2020); Kohen v. 

Pac. Inv. Mgmt. Co. LLC, 244 F.R.D. 469 (N.D. Ill. 2007) (certified CEA class included persons and entities 

who purchased a U.S. Treasury note futures contract to liquidate a short position in such contract during 55-

day class period), aff’d, 571 F.3d 672 (7th Cir. 2009); In re Amaranth Nat. Gas Commodities Litig., 269 F.R.D. 366 

(S.D.N.Y. 2010) (certified CEA class included persons and entities who purchased and sold at least 14 natural 

gas futures contracts during 224 day class period and where plaintiffs alleged defendants artificially inflated 

natural gas spread prices through dominant positions and also artificially depressed the settlement prices of 

three different natural gas contracts by “slamming the close”) petition for review denied, 10-4110-mv (2d Cir. 

2010); In re Nat. Gas Commodities Litig., 231 F.R.D. 171 (S.D.N.Y. 2005) (certified CEA class included persons 

and entities who purchased and sold dozens of different natural gas futures contracts during a three-year class 

period where defendants were alleged to have manipulated prices both up and down and where the class 

included numerous types of traders, including purchasers, sellers, speculators and hedgers), petition for review 

denied, (2d Cir. 2006); In re Sumitomo Copper Litig., 182 F.R.D. 85 (S.D.N.Y. 1998) (certified CEA class of 

purchasers of approximately 36 copper futures contracts during a two-year class period and also included 

both a “long subclass” and a “short subclass” in action where defendants were alleged to have engaged in a 

rolling manipulation); and In re Sumitomo Copper Litig., 194 F.R.D. 480 (S.D.N.Y. 2000) (certified CEA class 

included purchasers of approximately 30 copper futures contracts traded over a non-consecutive, two and 

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from a few months to a few years to resolve. Compare Kohen v. Pac. Inv. Mgmt. Co. LLC, 05-cv-4681, 

ECF Nos. 290, 454, 456 (Rule 23(f) review resolved after more than 2.5 years) with Ploss v. Kraft Foods 

Grp., Inc., 15-cv-2937, ECF Nos. 332, 345 (Rule 23(f) review resolved after 50 days).

For all the foregoing reasons, Plaintiff respectfully submits that the Court’s analysis during 

the September 26 conference is correct. The depositions of the named Defendants and Plaintiff’s 

very limited pursuit of subpoenas to pipeline and storage facilities should continue to proceed

without any stay.

D. Defendants’ Opposition To Class Certification Is Far From “Compelling” 

Another disputed premise for Defendants’ stay motion is that their opposition to class 

certification and their FRE 702 motion (ECF Nos. 353, 369 and 377) supposedly make 

“compelling” arguments. However, Defendants rely heavily on opinions of their expert, Dr. 

Hendershott, which Plaintiff has now demonstrated are flawed. For example, Dr. Benjamin 

Goodrich opines that Dr. Pirrong correctly executed the TVP-VAR model whereas Dr. Hendershott 

failed to execute correctly Dr. Pirrong’s TVP-VAR model. ECF 386, Ex. 4 (Goodrich Rebuttal) e.g.,

¶¶15-16, 18 and passim [emphasis added]. Similarly, Dr. Talis Putnins opines that Dr. Pirrong’s work 

in his TVP-VAR model is reasonable and reliable but Dr. Hendershott’s work in criticizing such 

model is not. See ECF 386, Ex. 3 (Rebuttal Expert Report of Dr. Talis Putnins) e.g., ¶¶15-16, 19-24, 

27, 113 and passim. 

Next, Defendants’ supposedly “compelling” opposition to class certification actually 

concedes the ascertainability, numerosity, commonality, and counsel adequacy showings by Plaintiff. 

ECF 369, 377 passim. As to those elements which Defendants do contest, they repeatedly rely upon 

the wrong legal standard. Compare ECF No. 390 pp. 27, 31-39, 54 (demonstrating that Defendants 

one-half-year class period where defendants were alleged to have engaged in a rolling manipulation) petition for 

review denied, 262 F.3d 134 (2d Cir. 2001).

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rely upon the wrong standard). Further, Defendants’ opposition to class certification is repeatedly 

handicapped by Dr. Hendershott’s numerous failures to contest Dr. Pirrong’s opinions. Compare 

ECF 391, ¶¶45-68 with ECF 390, pp. 6-7 (Dr. Hendershott failed to respond to Dr. Pirrong’s 

statistical probability analysis showing that, absent manipulation, there was a near zero chance that 

the all-time record WTI price decrease on April 20 followed by the all-time record WTI price 

increase on April 21) and pp. 6-11 (Dr. Hendershott did not analyze whether supply and demand 

could explain the all-time record increase in WTI prices on April 21); Mish I at 1091 (the extreme 

bounce back in prices on April 21 plausibly indicates that prices were manipulated on April 20). 

CONCLUSION

 Plaintiff should be permitted to go forward promptly with the depositions of the named 

Defendants, the non-party discovery with the remaining tank and pipeline owners, and discovery 

generally. 

Dated: October 4, 2024

Respectfully submitted,

/s/Christopher M. McGrath

Christopher Lovell 

Christopher M. McGrath

Benjamin Jaccarino 

Travis H. Carter

LOVELL STEWART HALEBIAN 

JACOBSON LLP 

500 5th Avenue, Suite 2440

New York, New York 10110

Telephone: (212) 608-1900 

Facsimile: (212) 719-4677 

Marvin A. Miller

Andy Szot 

MILLER LAW LLC

53 W. Jackson Boulevard, Suite 1320 

Chicago, Illinois 60604 

Telephone: (312) 332-3400

Counsel for Plaintiff and Proposed Class Counsel

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