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Banks Accused Of Fixing Bond Prices Dispute Drug Conspiracy Analogy Before Judge Rakoff

By Matthew Russell Lee, Patreon

SDNY COURTHOUSE, Sept 27 – Plaintiffs including Pennsylvania Treasurer Joseph M. Torsella are suing more than a dozen banks for allegedly fixing the price of housing bonds.

On September 27 the courtroom of U.S. District Court for the Southern District of New York Judge Jed S. Rakoff was again overflowing with bank lawyers and, standing in a corner by the window next to the jury room, Inner City Press.   

  Since July 23, when there had been a chair, little had changed. The plaintiffs amended their complaint with 19 more chats. Skadden Arps for JPMorgan Chase argued that two of the three theories of liability should be thrown out. While the plaintiffs' lawyer cited the "law of the case," Judge Rakoff reminded her of a judge's right to change his mind, "since we are infallible." There was laughter from the suited throng in the courtroom.

  Interestingly, Judge Rakoff brought up drug conspiracy law by analogy. The Skadden Arps attorney said he is less well versed in that type of conspiracy - which causes more harm to society, we note, is an open question - but that the scheming in this case only involved new issues, not off-the-run bonds.

  Judge Rakoff to his credit disputed the total disconnection of Wall Street and drug conspiracy jurisprudence, saying that conspiracy is a subset of agency theory and that the law is a seamless web. Now if only there were the same focus on Wall Street executives as, only this week, Bronxites understating their income to keep their Section 8 apartment, we'd be getting somewhere. We'll continue to cover his and other cases before Judge Rakoff and elsewhere.

Last time Goldman Sachs' lawyer from Sullivan & Cromwell Richard C. Pepperman II urged Judge Rakoff to adopt the "rule of reason" standard, and repeatedly said that he would bet his daughter's college tuition on this or that proposition.    She's going to have to take out so many loans, Judge Rakoff parried back.    

"If the right candidate wins in 2020, the loans will all be forgiven," Pepperman as progressive, faux or not, replied.  

For the plaintiffs Amanda F. Lawrence of Scott & Scott said that beyond the four trader-chats made part of the complaint she had many more. In one, a Morgan Stanley trader urged avoiding a race to the bottom, seemingly meaning actual competition on price. The case is In re GSE Bonds Antitrust Litigation, 19-cv-01704 (JSR).

When Ms. Lawrence said, My colleague to speak to that," Judge Rakoff said, "I'll hear from him."  

"Or her," Ms. Lawrence replied, introducing her female co-counsel.   

Quick on his feet while on the bench, Jed Rakoff said I didn't know you'd brought your best. More on Patreon here.

Pepperman said he had cited three cases, one by SDNY Judge Engelmayer, another from the Eastern District and a third from the Eighth Circuit. Judge Rakoff said, I always pay attention to what Judge Engelmayer writes. The Eight Circuit? He rolled his eyes and the nervous bank lawyers laughed.   

SDNY Judge Berman was also cited, as having asked to be spaced 1,900 examples of price fixing. But he's a young kid, Judge Rakoff said, again to laughter.  

First Tennessee alone among the many banks with lawyers in the gallery, on the press benches and in the jury box, spoke up and tried to get itself released from the case. The gambit appears based on not reporting its data into the set the plaintiffs ar using. But they say they have more chats. Judge Rakoff said it's all gone sub judice. Inner City Press will continue to cover this and other cases.

There are no fewer that four big oil cases pending against the Nigerian National Petroleum Corporation (NNPC) in the U.S. District Court for the Southern District of New York. The cases involve arbitration awards and various oil fields; a backdrop includes longstanding human rights abuses by and allegations of corruption in Nigeria's oil sector.   

Back on July 16 Inner City Press sought to attend and cover a status confernce in one of the cases, Statoil and Texaco v. NNPC, 18-cv-02392 before SDNY Judge Richard M. Berman. But the matter was put over until July 23 at noon.    When Inner City Press arrived at noon, both the plaintiffs and defendants tables were full; the courtroom was otherwise empty.   

The law firm for Texaco and Statoil, Freshfields Bruckhaus Deringer US LLP quickly told Judge Berman that the proceeding should be off the record and "in camera."   

Judge Berman said "we have a member of the press in the courtroom, a blogger," and asked the parties to say what they could in open court. The request, in essence, was for a stay of the proceedings, such as similar cases before SDNY Judges Stanton and Kaplan have been stayed. (SDNY Judge William Pauley has pushed one of the four cases forward, on which we intend to report more.)   

  The Freshfields counsel told Judge Berman that a six months stay would avoid for the court "the burden of heavy discovery and motion practice."  

 Judge Berman replied, "That's why we're here, it's not really a burden for us."   

The law firm for the Nigerian state oil company, Chaffetz Lindsey LLP, repeated the argument for secrecy. In a July 18 letter to Judge Berman marked "MEMO ENDORSED" the firm wrote "on behalf of all parties to respectfully request that the status conference scheduled for next Tuesday, July 23, take place in camera and that any transcript of the proceedings be placed under seal."   

Judge Berman to his credit declined to taken things off the record. He told the parties that he was granting their request for a stay, until January 14, 2020 at 11 AM but that it is "very likely there will be no further stay."    

Will the same apply to the Nigerian National Petroleum Corporation cases before SDNY Judges Stanton and Kaplan? Watch this site. The full case name is Statoil (Nigeria) Limited and Texaco Nigeria Outer Shelf Limited v. Nigerian National Petroleum Corporation, 18-cv-02392 (RMB).

Footnote: Ironically, the Nigerian government through its Mission to the UN has argued elsewhere in the SDNY that the recent elections explained it failure to even respond to a lawsuit by a young New Yorker run over by a Nigerian Mission vehicle with both registration and insurance expired.  Here's that story, July 10:

A few blocks from the United Nations on 49th Street and Second Avenue on 6 April 2018 Jennifer A. Edward was heading to her work as a lawfirm paralegal when a Nigerian Mission to the UN vehicle struck her, causing serious injury.    The vehicle's registration and insurance were both expired, in violation of the U.S. Diplomatic Relations Act.

The driver who was working for Nigeria's Mission had previously had accidents. But Nigeria and its mission refused to pay, or even fo months to respond to the lawsuit that was filed, and legally served as far away as Nigeria. Call it impunity, so prevalent in and around the UN.    

On July 10 the case came up before U.S. District Court for the Southern District of New York Judge Paul G. Gardephe. While denying Ms. Edward's motion for default judgment, Judge Gardephe essentially mocked the Nigerian Mission's argument that they needed more time to explore the issue of pre-existing condition.    

Ms. Edward is in her 20s, and has run a New York City marathon. The Nigerian mission in belated filings with Judge Gardephe has tried to blame their failure to response on the recent elections leading to the continuation of rule by President Buhari.    

Inner City Press, having seen Buhari's administration engage in illegal refoulement to Cameroon, unremarked on by the UN's Nigerian Deputy Secretary General Amina J. Mohammed, and having seen the UN claim impunity for cholera in Haiti and roughing up and banning the Press in New York, went to cover the July 10 proceeding.   

Afterward it spoke generally with Ms. Edward's lawyer Scott A. Harford. He explained the difficulty of getting the lawsuit served in Nigeria, and the lack of responsiveness by the U.S. Mission to the UN which is supposed to ensure that other countries' Missions to the UN at least maintain car insurance.

The case is moving to Magistrate Judge Debra C. Freeman, more on Patreon here, and Inner City Press will continue to cover and pursue this and other related cases.


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