Citations
- 277 F. Supp. 3d 521
Full opinion text
OPINION & ORDER
SIDNEY H. STEIN, U.S. District Judge.
Table of Contents
I. Background... 537
A. Summary of CHF LIBOR... 537
B. Relationship between CHF LIBOR and Swiss Franc Derivatives.. .537
C. The Parties and the Types of Swiss Franc Derivatives... 537
D. Alleged CHF LIBOR Manipulation ...539
1. Daily Fixes and Longer-Term Bias... 539
2. Specific Instances of Manipulation ...540
a. Intra-Defendant Manipulation ...540
b. Inter-Defendant Collusion... 540
3. Systemic Nature of Manipulation ...541
E. Bid-Ask Manipulation... 542
F. Regulatory Investigations and Settlements with Defendants... 542
G. The Complaint, Plaintiffs’ Claims, and the Proposed Class... 543
II. Article III Standing.. .543
A. Standard... 544
B. Plaintiffs Lack Article III Standing to Bring Their Bid-Ask Spread Claims.. .545
C. Plaintiffs Have Article III Standing to Bring Their CHF LIBOR Manipulation Claims with Respect to CHF Futures and FX Forwards,.. 546
D. Plaintiffs Have Class Standing to Bring Their CHF LIBOR Manipulation Claims with Respect to Interest Rate Swaps and NYSE LIFFE Exchange Futures Contracts... 549
III. Standard of Review for Motion to Dismiss for Failure to State a Claim... 550
IV. Antitrust Claim (Count Two)... 551
A. Conduct in Violation of Section One...552
1. The Alleged Conduct Constitutes a Restraint of Trade... 552
2. Plaintiffs Allege a Plausible Antitrust Conspiracy Against Only RBS. ..552
B. Antitrust Standing.. .557
1. Plaintiffs Adequately Allege Antitrust Injury,. .557
2. Only the Direct Transaction Plaintiffs Are Efficient Enforcers... 558
a. Directness of Causation of the Injury. . .559
b. ■ Existence of More Direct Victims ...562
c. Speculative Damages... 563 d. Duplicative Recovery and Complex Apportionment.. .565
C. Statute of Limitations... 566
1. The Complaint Fails to Allege Antitrust Violations Within the Four-Year Statute of Limitations... 566
2. Count Two is Timely Because the Statute of Limitations is Tolled by the Fraudulent Concealment Doctrine. . .567
D. The FTAIA Does Not Bar Count Two... 568
V. CEA Claims (Counts Three, Four, and Five)... 570
A. The CEA Does Not Cover CHF FX Forwards... 570
B. Counts Three, Four, and Five Fail Because Plaintiffs Lack CEA Standing. . .570
C. While Plaintiffs Lack CEA Standing, They Have Plausibly Alleged Manipulation by the Deutsche Bank Defendants, RBS, and UBS... 572
D. While Plaintiffs Lack CEA Standing, They Have Plausibly Alleged Principal-Agent Liability Against the Deutsche Bank Defendants, RBS, and UBS... 574
E. While Plaintiffs Lack CEA Standing, They Have Plausibly Alleged Aiding and Abetting Liability Against RBS.., 574
F. The CEA Claims Are Timely Against All Defendants Except UBS... 575
VI. RICO Claims (Counts Six and Seven)... 576
A. Plaintiffs Have RICO Standing. . .576
B. The Complaint Adequately Alleges Conduct that Violates RICO Only as to RBS... 577
1. The Complaint Adequately Alleges an Association-in-Fact RICO Enterprise Only.as to RBS.. .577
2. The Complaint Adequately Alleges Two Predicate Acts of Wire Fraud by RBS...577
3. The Complaint Adequately Alleges that RBS Engaged in a Pattern of Racketeering Activity. . .579
C. The Complaint Adequately Alleges a RICO Conspiracy Only as to RBS... 579
D. The RICO Claims Are Dismissed in Full as Impermissibly Extraterritorial...579
E. Plaintiffs’ RICO Claims Are Timely...583
VII. The Court Declines to Exercise Supplemental Jurisdiction over the State Law Claims (Counts Eight and Nine)... 583
VIII. Personal Jurisdiction... 584
A. Defendants’ Operations and U.S. Connections... 584
1. BlueCrest... 584
2. The Credit Suisse Defendants... 585
3. Deutsche Bank AG... 585
4. DB Group Services... 585
5. RBS...585
6. UBS... 585
B. Personal Jurisdiction Standard ...586
C. No Defendant Has Consented to the Court’s General Jurisdiction... 586
D. Specific Jurisdiction.. .588
1. Standard.,. 588
2. The National Contacts Test Applies to Plaintiffs’ Federal Claims... 589
3. Bloomberg Chats Transmitted Through Servers in New York Do Not Constitute Meaningful Contacts with the Forum.,. 590
4. Defendants Causing Thomson Reuters To Disseminate False CHF LIBOR into the United States Does Not Itself Create Sufficient Contacts... 590
5. The Court Has Personal Jurisdiction Over RBS, UBS, the Credit Suisse Defendants and Deutsche Bank AG Because Manipulating CHF LIBOR for the Purpose of Profiting from Transactions in CHF LIBOR-Based Derivatives within the United States Constitutes Purposeful Availment of the Forum. . .591
6. The Court Lacks Personal Jurisdiction Over DB Group Services and Blue-Crest Because They Are Not Plausibly Alleged to Have Transacted in CHF LI-BOR-Based Derivatives in the United States... 596
7. RBS’s Conspiracy from Abroad with JPMorgan in the Forum Reinforces the Conclusion that RBS Is Subject to the Court’s Jurisdiction.. .596
E. Fair Play and Substantial Justice ..'. 598
F. Jurisdictional Discovery... 598 ■
IX. Leave to Replead... 599
X. Conclusion... 599
This putative class action is based primarily on allegations that defendants unlawfully manipulated the Swiss franc London InterBank Offered Rate (“CHF LIBOR”), a ’ daily interest rate benchmark designed to reflect the cost at which large banks are able to borrow Swiss francs. According to plaintiffs’ First Amended Complaint (the “Complaint”), changes in CHF LIBOR affect the prices of numerous Swiss franc currency derivatives, such as Swiss franc foreign ■ exchange forwards (“CHF FX forwards”) and. Swiss franc futures contracts (“CHF futures contracts”). The Complaint alleges that from at least January 1, 2001 through at least December 31, 2011 (the “Class Period”) defendants—éight large financial institutions—conspired to manipulate CHF LIBOR, and thereby the prices of those derivatives, to benefit their own trading positions in Swiss franc currency derivatives. The essence of plaintiffs’ claims is that they and others similarly situated were on the losing end of that manipulation, transacting in Swiss franc derivatives with defendants and third parties during the Class Period on terms made less favorable by (1) defendants’ fixing of CHF LIBOR and (2) certain defendants’ collusion to increase the “bid-ask spread” on transactions in those derivatives. Based on this alleged misconduct, the Complaint asserts claims against all defendants under the Sherman Antitrust Act, 15 U.S.C. § 1, et seq., the Commodities Exchange Act (“CEA”), 7 U.S.C. §§ 1, et seq., and the Racketeer Influenced and Corrupt Organizations Act (“RICÓ”), 18 U.S.C. §§ 1961, et seq., as well as state law claims against defendants Credit Suisse AG, Credit Suisse Group AG, and UBS AG. for unjust enrichment and breach of the implied covenant of good faith and fair dealing.
The Complaint draws its allegations largely -from the statements of fact accompanying numerous settlements, for an aggregate value of over $7 billion, that defendants have reached with U.S. and European regulators arising from their alleged manipulation of LIBOR for Swiss francs and several other currencies. Allegations of LIBOR manipulation, and the resulting regulatory investigations and settlements, have received widespread media coverage. In recent years, several purported class actions have also been filed in this judicial district alleging similar manipulation of LIBOR rates for other currencies. See, e.g., In re: LIBOR-Based Fin. Instruments Antitrust Litig. (“LIBOR I”), 935 F.Supp.2d 666 (S.D.N.Y. 2013) (U.S. dollars); Laydon v. Mizuho Bank, Ltd., No. 12-cv-3419, 2014 WL 1280464 (S.D.N.Y. Mar. 28, 2014) Yen); Sullivan v. Barclays PLC, No. 13-cv-2811, 2017 WL 685570 (S.D.N.Y. Feb. 21, 2017) (Euros).
Currently before the Court are defendants’ motions to dismiss the Complaint. While these motions were pending, plaintiffs and defendant JPMorgan Chase & Co. (“JPMorgan”) executed an agreement to settle all claims against JPMorgan on a class-wide basis. See Doc. 146. Accordingly, the motions to dismiss are deemed withdrawn as to JPMorgan without prejudice to refiling in the event the Court does not approve the class settlement with JPMorgan, and allegations against JPMor-gan will be recounted only as relevant to the remaining defendants. Each of the remaining seven defendants move to dismiss the Complaint for lack of subject matter jurisdiction, lack of personal jurisdiction, and failure to state a claim. See Fed. R. Civ. P. 12(b)(1), 12(b)(2), and 12(b)(6).' These motions encompass a variety of challenges to the Complaint: ranging from standing, timeliness, extraterritoriality, and personal jurisdiction to nearly each element of every claim.
The Court concludes that the Complaint fails to state any claim for which relief can be granted. As an initial matter, plaintiffs lack Article III standing to sue for the manipulation of bid-ask spreads because they have not alleged that they were injured by that manipulation. With respect to plaintiffs’ antitrust claim for manipulation of CHF LIBOR, the Complaint fails to plausibly allege an antitrust conspiracy against any defendant except RBS. While the Complaint makes numerous detailed allegations that several defendants independently manipulated CHF LIBOR, it is devoid of specific or plausible allegations that defendants other than RBS conspired with each other to do so. Moreover, plaintiffs’ antitrust claim against RBS fails for lack of antitrust standing because plaintiffs did not transact in CHF LIBOR-based derivatives with RBS and therefore are not “efficient enforcers” of the antitrust laws. Plaintiffs’ CEA claims fail because they have not provided sufficient details about their transactions to plausibly allege that they were injured by defendants’ alleged manipulation of CHF LIBOR. Plaintiffs’ RICO claims are dismissed as impermissibly extraterritorial because the alleged scheme to manipulate CHF LIBOR was, with limited exceptions, centered in Europe and touched the United States only as part of a global scheme. Because the Complaint fails to state a viable claim under federal law, the Court declines to exercise its supplemental jurisdiction over the state law claims.
For these reasons and those provided below, defendants’ motions to dismiss are granted, and plaintiffs’ claims are dismissed in full with leave to replead.
1. BACKGROUND
The following facts are as alleged in the Complaint and are taken as true solely for the purpose of these motions.
A.Summary of CHF LIBOR
CHF LIBOR is determined and disseminated by the British Bankers Association (“BBA”) in London. To set CHF LIBOR, each trading day twelve “contributor panel banks”—including five of the eight defendants in this case—submit to the BBA the interest rate at which they could borrow Swiss francs “in a reasonable market size just prior to 11:00 A.M. London time.” Compl. ¶ 71. The twelve contributor banks submit quotes for fifteen different borrowing durations, or “tenors,” ranging from overnight to twelve months. Id. ¶ 72. Acting as an agent for the BBA, Thomson Reuters calculates CHF LIBOR for each tenor by ranking the quotes in numerical order and then averaging the middle 50% of the quotes, disregarding the bottom 25% and top 25%. The resulting number, referred to as the “fix,” becomes the official CHF LIBOR for each tenor and is disseminated globally, along with each bank’s submission, by Thomson Reuters and other financial services platforms, including into the United States through U.S. wires. Id. ¶ 73. To ensure the integrity of the rate setting process, BBA guidelines require that contributor banks submit quotes without regard for any factor unrelated to their cost of borrowing Swiss francs.
B. Relationship between CHF LI-BOR and Swiss Franc Derivatives
The Complaint identifies several types of Swiss franc currency derivatives as “Swiss franc LIBOR-based derivatives” that it maintains are each “priced, bench-marked, and/or settled using a mathematical formula that incorporates Swiss franc LIBOR as one of its terms,” Compl. ¶ 86. Because of this incorporation, the Complaint alleges, the values of these derivatives are manipulated when CHF LIBOR is manipulated. For example, both CHF futures contracts and CHF FX forwards “are agreements to buy or sell a certain amount of Swiss francs in terms of another currency, e.g., U.S. Dollars, on some future date,” and the “cost of buying or selling Swiss francs in the future is determined using an industry standard formula that incorporates Swiss franc LIBOR.” Id. ¶ 87. According to the Complaint, a decline in CHF LIBOR causes an increase in the future price of Swiss francs, which increases the value of CHF futures contracts and CHF FX forwards. See id. ¶¶ 194-95.
The Complaint purports to demonstrate that CHF LIBOR was artificial throughout the Class Period through a statistical analysis comparing CHF LIBOR to the rate of borrowing Swiss francs in “actual money market transactions.” Id. ¶181. While there should have been little to no difference between CHF LIBOR and the actual cost of borrowing, plaintiffs allege, their analysis revealed a substantial discrepancy.
C. The Parties and the Types of Swiss Franc Derivatives
Five of the defendants—UBS AG (“UBS”), The Royal Bank of Scotland PLC (“RBS”), JPMorgan Chase & Co. (“JPMorgan”), Credit Suisse Group AG (“Credit Suisse Group”), and Deutsche Bank AG .(collectively, the “Contributor Bank Defendants”)—are among the twelve “contributor banks” whose quotes set CHF LIBOR. Compl. ¶ 4. Defendants Credit Suisse AG and DB Group Services UK Limited (“DB Group Services”) are subsidiaries of Credit Suisse Group and Deutsche Bank AG, respectively. The last defendant, BlueCrest Capital Management LLP (“BlueCrest”), is an investment advisory services firm alleged to have requested that Deutsche Bank AG submit an artificial CHF LIBOR quote.
JPMorgan is a Delaware financial holding company with its headquarters in New York, NY. Each of the other defendants are headquartered and incorporated in Europe but are alleged to have substantial operations within the United States or affiliates and/or subsidiaries with substantial operations within the United. States (the “Foreign Defendants”). See id. ¶¶ 38-66.
Plaintiffs are investment funds, financial services companies, and one individual who allege that during the Class Period they suffered injury by entering into U.S.based transactions for two types of Swiss franc LIBOR-based derivatives—(1) Swiss franc currency futures contracts, and (2) Swiss franc FX forwards—at artificial prices caused by defendants’ manipulation of CHF LIBOR. While plaintiffs themselves transacted in only these two types of derivatives, they seek to represent a class of those who transacted in any type of “Swiss franc LIBOR-based derivatives,” defined to encompass “over-the-counter instruments, such as interest rate swaps, forward rate agreements, foreign exchange forwards, cross-currency swaps, overnight index swaps, and tenor basis swaps, as well as exchange-traded futures and options, such as the three-month Euro Swiss franc futures contract traded on the NYSE LIFFE Exchange and the Swiss franc currency futures contract traded on the CME.” Id. ¶ 75.
Plaintiff Frank Divitto, an Ohio resident, alleges that he transacted in Swiss franc currency futures contracts traded on, the Chicago Mercantile Exchange (“CME”). Id, ¶ 37. The Complaint does not provide any details of these transactions, beyond stating that they occurred “[d]uring the Class Period.” Id. According to the Complaint, Swiss franc futures contracts are “standardized bilateral agreements that call for the purchase or sale of an underlying commodity on a certain future date.” Id. ¶ 76. “For example, a June 2015 CME Swiss franc currency futures contract is an agreement for the purchase or sale of CHF 125,000 in exchange for U.S. Dollars on the third Wednesday of June 2015. This futures contract is ‘standardized’J and trades in.accordance with the rules specified by the CME, a Designated Contract Market pursuant to Section 5 of the CEA (7 U.S.C. § 7).” Id. For a futures contract traded on an exchange such as the CME the exchange functions as the intermediary, and there is no identifiable counter-party, as there would be for an “over the counter” (“OTC”) transaction.
Aside from Divitto, each plaintiff claims to have transacted in Swiss franc FX forwards. Whereas Swiss Franc futures contracts are traded on an exchange, other types of Swiss franc based derivatives trade ovér the counter in transactions directly between private parties. A CHF FX forward agreement is “the OTC equivalent to a currency futures contract,” under which the parties “agree to buy or sell a custom amount of Swiss francs at a specified price on a certain date.” Id., ¶ 81. FX forwards can be attractive because they provide “similar functionality to the standardized exchange-traded contracts but with greater flexibility, allowing the parties to customize certain terms such as duration of their agreement, the ‘notional amount,’ i,e., total value, of the contract, and the settlement date.” Id.
Plaintiffs FrontPoint Healthcare Flagship Enhanced Fund,- L.P., FrontPoint Healthcare Flagship Fund, L.P., and FrontPoint Healthcare Horizons Fund, L.P. (the “Direct Transaction Plaintiffs”) allege that they transacted in FX forwards “directly with Defendants UBS and Credit Suisse.” Id. ¶¶ 23-25. According to the Complaint, the Direct Transaction Plaintiffs entered into “over 400 Swiss franc currency forwards with Credit Suisse and over 1,300 Swiss franc currency forwards with UBS.” Id. ¶ 310. The Complaint provides specific dates and amounts for some of these transactions, in contrast with the Divitto allegations. See id. ¶¶ 202-04.
The remaining plaintiffs allege that they transacted in Swiss franc- FX forwards with third parties at -prices that were artificial due to defendants’ manipulation. According to the Complaint, trillions of dollars in Swiss franc LIBOR-based derivatives were traded within the United States during the Class Period. Id. ¶ 80.
D. Alleged CHF LIBOR Manipulation
Plaintiffs allege that defendants abused their control over CHF LIBOR to move the price of these Swiss franc LIBOR-based derivatives in whatever direction benefited their own trading positions or those of-their coconspirators. According to the Complaint, “[t]he Contributor Bank Defendants made false Swiss franc LIBOR submissions in response to requests from their own Swiss franc LIBOR-based derivatives traders, including ■ traders in the United States, as well as those made by co-conspirator banks, hedge funds, and inter-dealer brokers, some of which are based in the United States.” Compl. ¶ 99.
1. Daily Fixes and Longer-Term Bias
The Complaint alleges two forms of CHF LIBOR manipulation. First, defendants’ traders allegedly requested “fixings” on specific “days where qne or more of the Defendants had a Swiss franc LI-BOR-based derivatives position that was going to be priced, benchmarked and/or settled based on Swiss franc LIBOR.” Compl, 1T1Q0. Second, “Defendants also requested false Swiss'franc LIBOR submissions to inject a certain ‘bias’ into the Swiss franc LIBOR fixing, permanently manipulating specific tenors higher or lower by making false , submissions over long periods of time.” Id. ¶ 101.
As will be significant in assessing the plausibility of the alleged conspiracy, both the “daily fixes” and the longer-term “bias” are alleged, to have manipulated CHF LIBOR “higher or lower” depending on which would profit whatever, defendants’ derivatives positions were at that time, rather than in any consistent direction. Id. ¶¶ 101, 129. This is in contrast to some of the other recent cases alleging LIBOR manipulation based on a theory of persistent suppression, in, which contributor banks made “submission[s] reporting an artificially low cost of borrowing” in order to “project financial health.” Gelboim v. Bank of America Corp., 823 F.3d 759, 766 (2d Cir. 2016).
2. Specific Instances of Manipulation
The Complaint provides specific examples of defendants’ requests for manipulation taken from government regulators’ statements of fact accompanying their settlements with defendants. These examples include both requests to a defendant to submit false LIBOR quotes made by a defendant’s own trader (which the Court will refer to as “intra-defendant manipulation”) and requests to a defendant to submit false LIBOR quotes made by a different defendant (which the Court will refer to as “inter-defendant collusion”). Because the distinction between intra-de-fendant manipulation and inter-defendant collusion will be quite significant for plaintiffs’ antitrust and RICO claims, the specific allegations concerning the two are summarized separately.
a. Intra-Defendant Manipulation
With respect to intra-defendant manipulation, the Complaint is replete with specific instances of UBS, RBS, and Deutsche Bank AG manipulating their own submissions to benefit their own trading positions. For example, on July 5, 2006, a UBS submitter agreed to a UBS Swiss franc derivative trader’s request “for high 1 month fix.” Compl. ¶ 103. Similarly, on October 3, 2008, a Deutsche Bank AG submitter agreed to a Deutsche Bank AG trader’s request for “very low 1 month please.” Id. ¶ 109. And on October 21, 2008, the “primary submitter” for RBS accommodated an RBS Swiss franc trader’s request that “we need that libor down fast.” Id. ¶ 191.
These specific instances are alleged to be emblematic of a systemic pattern of conduct throughout the Class Period. The Complaint claims that, “[smarting at least as early as 2001, and continuing until at least September 1, 2009, on each trading day on which UBS had Swiss franc trading positions, UBS’s Swiss franc LIBOR submitters rounded UBS’s Swiss franc LI-BOR submissions to benefit UBS’s global Swiss franc trading positions.” Id. ¶ 117. According to the Complaint, Deutsche Bank AG “had a similar policy in place, focused on policing the ‘spread’ or difference between certain tenors of LIBOR, including Swiss franc LIBOR.” Id. ¶ 119. “Deutsche Bank’s LIBOR submitters, including those who made Swiss franc LI-BOR submissions, routinely built this spread ‘bias’ into Deutsche Bank’s LIBOR submissions, pushing the spread between different tenors of LIBOR wider, even in the absence of written communications from traders requesting a specific false rate.” Id. ¶ 120. And the Complaint alleges that RBS traders requested false CHF LIBOR submissions “continuously during Class Period ... as often as several times each week.” Id. ¶ 102.
b. Inter-Defendant Collusion
Turning to the claims of inter-defendant collusion, the specific allegations as to several defendants are sparse. Indeed, the Complaint itself characterizes these allegations as the “handful of examples of inter-Defendant communications released in the government settlements to date.” Compl. ¶ 123. BlueCrest—which was not a contributor bank and therefore would have had to collude with a contributor bank in order to manipulate CHF LIBOR—is alleged to have requested a false one-month CHF LIBOR submission from Deutsche Bank AG on February 10, 2005, stating: “Can’t you ask your fft to contribute lm chf libor very low today? ? I have 10 yr of fix, 8 of which against ubs, and they’re getting on my nerves.” Id. ¶ 131. The Complaint does not allege that Deutsche Bank AG responded to this request, much less that it submitted a false CHF LIBOR quote in response to the request. And, in something of a hybrid of intra-defendant manipulation and inter-defendant collusion, the Complaint alleges that Deutsche Bank AG manipulated CHF LIBOR at the request of derivative traders at DB Group Services, its affiliate. See id. ¶¶ 111-13.
The allegations of inter-defendant collusion are strongest against RBS. The Complaint contains multiple specific allegations of RBS traders discussing manipulation of CHF LIBOR with an unidentified “Bank E.” Id. ¶¶ 124, 213, & App’x. Additionally, the European Commission found that “RBS and JPMorgan operated a cartel aimed at manipulating Swiss franc LIBOR to ‘distort the normal pricing of interest rate derivatives denominated in Swiss franc.’ ” Id. ¶ 139. In a supplemental brief, plaintiffs allege that documents JPMorgan recently produced pursuant to its settlement of this action further corroborate that a JPMorgan trader in New York conspired with an RBS trader in Europe to repeatedly manipulate CHF LIBOR.
The Complaint also alleges that RBS manipulated CHF LIBOR through a “hub and spoke” conspiracy in which “inter-dealer brokers” accepted “requests for false LIBOR submissions from panel banks and other market participants and coordinated the submissions of other panel members to move the market in the agreed upon direction.” Id. ¶¶ 133-34. The Complaint cites a United Kingdom Financial Services Authority finding of “at least five requests for Swiss franc LIBOR submissions made by an external trader and inter-dealer broker that RBS followed during the Class Period.” Id. ¶ 137. The Complaint alleges generally that other defendants participated in this “hub and spoke” conspiracy as well, but lacks any specific allegations because “the banks and brokers on the other side of these requests have not been identified and the communications associated with these requests for false submissions have not been released.” Id.
The Complaint contains no specific allegations that UBS colluded with any other entity to manipulate Swiss franc LIBOR submissions or that the Credit Suisse Defendants manipulated CHF LIBOR at all, either alone or through collusion.
3. Systemic Nature of Manipulation
Plaintiffs maintain that these specific instances of manipulation were not isolated incidents or the actions of a few rogue traders, but rather part of a widespread scheme that was facilitated and encouraged by defendants as institutions. The Complaint alleges that defendants facilitated their LIBOR manipulation through various structural decisions, such as “(1) making structural changes to their money markets and LIBOR-based derivatives trading desks to create an environment where LIBOR manipulation, including the coordination of requests for false submissions between traders and submitters, was encouraged; [and] (2) implementing lax compliance standards that failed to detect any misconduct.” Compl. ¶ 140.
As with the allegations of specific instances of manipulation, the adequacy of the allegations of systemic facilitation of manipulation varies widely from defendant to defendant. The Complaint alleges that Deutsche Bank AG and UBS allowed CHF LIBOR derivative traders, who had a financial stake in CHF LIBOR, to submit quotes, and that RBS reorganized its trading desk to place CHF derivative traders next to CHF LIBOR submitters for the express purpose of allowing traders to share financial positions with the submitters. See id. ¶¶ 141, 146, 150. Deutsche Bank AG allegedly “even held weekly meetings to ensure that its Swiss franc LIBOR-based derivative traders and submitters were on the same page and manipulated the rate in a direction that helped the- bank.” Id. ¶ 110. According to the Complaint, RBS, UBS, and Deutsche Bank AG failed to conduct investigations of misconduct or placed submitters themselves in charge of such investigations. See id. ¶¶ 154, 160, 164. The Complaint is devoid of any allegations that BlueCrest, DB Group Services, or the Credit Suisse Defendants engaged in any similar structural facilitation of CHF LIBOR manipulation.
E. Bid-Ask Manipulation
The Complaint alleges that defendants, in addition to manipulating CHF LIBOR, colluded during the Class Period to increase the “bid-ask spread” that they charged as market makers in the over-the-counter LIBOR-based derivatives market. Compl. ¶ 90. The bid-ask spread is the difference. between the “bid” price at which a market maker, such as the defendants, offers to buy LIBOR-based derivatives, and the “ask” price at .which the market maker will sell that same derivative. Id. ¶ 8. The alleged purpose of this conspiracy was “tp quote wider, fixed bid-ask spreads to all non-members for over-the-counter Swiss franc LIBOR-based derivatives, while agreeing to maintain a narrower bid-ask spread for trades amongst themselves.” Id. ¶ 93. Essentially, widening the bid-ask spread would increase defendants’ profits on every transaction “because it allows them to buy derivatives from Class members at an artificially lower bid price and then resell them to other Class members at-an artificially higher ask price.” Id. ¶ 94.
While the .Complaint at times suggest that this conspiracy included “defendants” collectively, its only specific allegations are based on a settlement between the European Commission and RBS, UBS, JPMor-gan, and Credit Suisse Group AG—referred to in the Complaint as the “EC Cartel Defendants.” The EC Commission’s decision accompanying the settlement found that the EC Cartel Defendants manipulated bid-ask spreads for specific types of Swiss franc currency derivatives between May and September 2007. The Complaint does not individually accuse any defendant other than the EC Cartel Defendants of participating in the bid-ask spread conspiracy.
F. Regulatory Investigations and Settlements with Defendants
As noted, defendants’ alleged manipulation of CHF LIBOR and the bid-ask spreads for certain types of CHF LIBOR-based derivatives led' to a number of enforcement actions and settlements between defendants and regulators in the United States and Europe, and the findings of those actions provide the core allegations to the Complaint. The first of these actions was made public on December 18 and 19, 2012, when UBS reached settlements with the U;S. Department of Justice (“DOJ”), the U.S. Commodities Futures Trading Commission (“CFTC”), and the United Kingdom’s Financial Services Authority (“FSA”) for widespread manipulation of CHF LIBOR.
The second round of these actions was made public on February 2, 2013, when RBS likewise reached settlements with the DOJ, CFTC, and FSA for repeated manipulation of CHF LIBOR between 2006 and 2010. And on October 21, 2014, RBS and JPMorgan reached a settlement with the European Commission for, in the words of the statement accompanying the settlement, colluding to “distort the normal course of pricing of interest rate derivatives denominated in Swiss franc” between March 2008 and July 2009. Id. ¶ 55. Also on October 21, 2014, the EC-Cartel Defendants reached a-settlement with the European Commission for manipulation of the bid-ask spread for certain Swiss franc currency derivatives between May 2007 and September 2007. Id. ¶ 92.
Last, on April 23, 2015, Deutsche Bank AG reached settlements with the DOJ, CFTC, the United Kingdom’s Financial Conduct Authority, and the New York State Department of Financial Services. The DOJ statement of facts accompanying the settlement states that “[f]rom at least 2003 through at least 2010, DB derivatives traders requested and obtained benchmark interest rate submissions that benefited their trading positions.” DB Group Services likewise entered a settlement with the DOJ on April 23, 2015, based partly on its employment of traders in London requesting false CHF LIBOR quotes. See id. ¶ 53.
G. The Complaint, Plaintiffs’ Claims, and the Proposed Class
On February 5, 2015, plaintiffs filed a complaint against Credit Suisse Group AG, JPMorgan Chase & Co., RBS, UBS AG, and John Doe Nos. 1-50. On June 19, 2015, plaintiffs filed their First Amended Complaint (again, the “Complaint”) to add Credit Suisse AG, the Deutsche Bank Defendants, and BlueCrest as defendants,- as well as additional allegations. Plaintiffs bring this action pursuant to Fed. R. Civ. P. 23 and seek to represent “[a]ll persons or entities that engaged in U.S.-based transactions in financial instruments that were priced, benchmarked, and/or settled to Swiss franc LIBOR at any time from at least January 1, 2001; through at least December 31, 2011 (the ‘Class’).” Compl. ¶ 224,
The Complaint asserts nine causes of action. Plaintiffs bring two antitrust claims against all defendants for violations of § 1 of the Sherman Act, 15 U.S.C. § 1, et seq.—one based on collusion to manipulate Swiss franc derivative bid-ask' spreads (“Count One”), and one based on collusion to manipulate CHF LIBOR (“Count Two”). Plaintiffs also assert three claims against all defendants under the CEA, 7 U.S.C. §§ 1, et seq.—one-for violations of the CEA based on manipulation of CHF LIBOR (“Count Three”), one for principal-agent liability for those violations (“Count Four”), and one for aiding and abetting other defendants’ violations (“Count Five”). Next, plaintiffs . assert claims against each defendant for violation of RICO, 18 U.S.C. § 1962(c) (“Count Six”) based on their intentional manipulation of CHF LIBOR through the use of U.S. wires, and for RICO conspiracy in violation of 18 U.S.C. § 1962(d), (“Count Seven”). Last, plaintiffs assert state law claims of unjust enrichment (“Count Eight”) and breach of the implied covenant of good faith and fair dealing (“Count Nine”) against the Credit Suisse Defendants and UBS for transacting with plaintiffs in Swiss franc FX forwards at artificial prices caused by their manipulation.
II. Article III Standing
Defendants move to dismiss the Complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) on the grounds that plaintiffs have not alleged an injury in fact and therefore lack Article III standing to bring their claims. With respect to the claims based on the alleged manipulation of bid-ask spreads (the “Bid-Ask Spread Claims”), defendants contend that plaintiffs have failed to allege that plaintiffs transacted in the types of derivatives they allege were affected. With respect to claims based on the alleged manipulation of CHF LIBOR (the “CHF LIBOR Manipulation Claims”), defendants argue that plaintiffs have not plausibly alleged that any manipulation of CHF LIBOR affects the price of the Swiss franc currency derivatives, and that plaintiffs lack standing to sue for manipulation of types of Swiss franc currency derivatives in which they did not themselves transact. For the reasons below, the Court concludes that plaintiffs have standing to pursue their CHF LIBOR Manipulation Claims, with certain exceptions, but not their Bid-Ask Spread Claims.
A. Standard
“Standing is the threshold question in every federal case, determining the power of the court to entertain the suit.” Ross v. Bank of Am., N.A. (USA), 524 F.3d 217, 222 (2d Cir. 2008). “A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). As the parties invoking federal jurisdiction, plaintiffs bear the burden of establishing standing to bring their claims, and thus the Court’s jurisdiction to hear those claims. Keepers, Inc. v. City of Milford, 807 F.3d 24, 39 (2d Cir. 2015). “To establish Article III standing, a plaintiff must ... allege, and ultimately prove, that he has suffered an injury-in-fact that is fairly traceable to the challenged action of the defendant, and which is likely to be redressed by the requested relief.” Baur v. Veneman, 352 F.3d 625, 632 (2d Cir. 2003). The alleged injury in fact must be “concrete and particularized, actual or imminent, and fairly traceable to the challenged action.” WC Capital Mgmt., LLC v. UBS Secs., LLC, 711 F.3d 322, 329 (2d Cir. 2013) (citations omitted).
Article Ill’s “injury in fact” requirement “is a low threshold.” Ross, 524 F.3d at 222. The alleged injury “need not be capable of sustaining a valid cause of action” to establish standing, so long as it is “likely redressable by a favorable decision.” Id. “When we assess a lack-of-standing argument on the basis of the pleadings, moreover, we take as true the factual allegations contained in the complaint.” WC Capital Mgmt., LLC, 711 F.3d at 329.
Ordinarily, standing requires that a plaintiff “personally suffered an injury” from the challenged conduct. W.R. Huff Asset Mgmt. Co., LLC v. Deloitte & Touche, LLP, 549 F.3d 100, 107 (2d Cir. 2008). However, “in a putative class action, a plaintiff has class standing if he plausibly alleges (1) that he personally has suffered some actual injury as a result of the putatively illegal conduct of the defendant, and (2) that such conduct implicates the same set of concerns as the conduct alleged to have caused- injury to other members of the putative class by the same defendants.” NECA-IBEW Health & Welfare Fund v. Goldman Sachs & Co., 693 F.3d 145, 162 (2d Cir. 2012) (internal quotation marks, alterations, and citations omitted). This “class standing” “does not turn on whether [plaintiffs] would have statutory or Article III standing.” Id. at 158.
B. Plaintiffs Lack Article III Standing to Bring Their Bid-Ask Spread Claims
With respect to the alleged “bid-ask spread” conspiracy, defendants emphasize that the European Commission decision on which all of the Complaint’s allegations are based states that the “specific types” of derivatives “concerned by the infringement were limited to: (i) forward rate agreements (referenced to Swiss Franc LIBOR) and (ii) swaps, which include overnight index swaps (referenced to the Swiss Franc TOIS) and interest rate swaps (referenced to Swiss Franc LI-BOR).” But plaintiffs claim to have transacted in only two types of CHF currency derivatives—Swiss franc FX forwards and Swiss franc currency futures contracts. Compl. ¶¶ 20-37. That is, plaintiffs have not alleged that they transacted in any of the specific types of derivatives covered by the European Commission settlement— forward rate agreements, overnight index swaps, and interest rate swaps. Instead, the Complaint seeks to lump all of these derivatives together under the umbrella definition of “Swiss franc LIBOR-based derivatives.” See id. ¶75. It then alleges that defendants manipulated the “bid-ask spread” for “Swiss franc LIBOR-based derivatives” generally without ever alleging manipulation for Swiss franc FX forwards and Swiss franc currency futures contracts specifically. Thus, defendants argue, plaintiffs have failed to allege that they were injured by any bid-ask spread manipulation.
Tellingly, plaintiffs do not contradict defendants’ observation that the Complaint fails to allege bid-ask spread manipulation for the specific types of derivatives in which plaintiffs transacted. Instead, plaintiffs seek to excuse that failure by protesting that “[l]ittle can be judged at the pleading stage concerning why the EC limited its bid-ask findings to a specified period and specified instruments,” and nakedly asserting that “it is plausible that Defendants’ misconduct extended well beyond the bounds of their deal with the EC.” Doc. 86 at 33-34. But mere speculation that defendants’ misconduct extended beyond the scope of the European Commission settlement does not satisfy plaintiffs’ burden to allege such conduct. The only attempt to show such manipulation is a cryptic comment in plaintiffs’ briefing that “these instruments ,.. constituted one integrated Swiss franc LIBOR-based derivatives market.” Doc. 86 at 22-23. That vague, isolated assertion in the briefing is no substitute for a clear allegation that the bid-ask spreads for plaintiffs’ derivatives were affected by defendants’ manipulation.
Absent such an allegation, plaintiffs cannot show an injury in fact and therefore lack standing to sue on behalf of the proposed class for manipulation of other types of derivatives. As explained in NECA-IBEW Health & Welfare Fund, a plaintiff has standing to pursue class members’ separate injuries implicating “the same set of concerns” only if it “personally has suffered some actual injury as a result of the putatively illegal conduct.” 693 F.3d at 162 (internal quotation marks and alterations omitted). Accordingly,-Count One is dismissed-for lack of standing, and no other claim can be supported by allegations relating to bid-ask spread manipulation.
C. Plaintiffs Have Article III Standing to Bring Their CHF LIBOR Manipulation Claims with Respect to CHF Futures and FX Forwards
Defendants also contend that plaintiffs lack'Article III standing to pursue their CHF LIBOR Manipulation Claims because they have failed to plausibly allege a connection between CHF LI-BOR and the price of the derivatives in which they transacted. Without such a connection, no injury in fact would exist that is fairly traceable to defendants’ alleged manipulation. (This argument is also.central to defendants’ claims that plaintiffs, have not adequately pleaded a cognizable injury under the Sherman Act, the.CEA, or RICO.)
According to the Complaint, “[t]he cost of buying or selling Swiss francs in the future is determined using an industry standard formula that incorporates Swiss franc LIBOR” which “applies to both CME Swiss franc futures contracts and OTC Swiss franc foreign exchange forwards.” Compl. ¶¶ 87-88. The “industry standard formula”' that the complaint references is drawn from an FX futures tutorial published by the CME in April 2013. This formula is:
The formula “involves taking the ‘spot price’ of Swiss francs for immediate delivery, and adjusting it to account for the ‘cost of carry,’ ie., the amount of interest paid or received on Swiss franc deposits, for the duration of the agreement. Swiss franc LIBOR, the benchmark rate of interest for Swiss franc deposits, is incorporated into the formula as either ‘Rbase’ or ‘Rterm’ depending on whether Swiss francs are being purchased or sold in the transaction.” Id. ¶ 88. Thus, if the CHF LIBOR input is manipulated, “so is the cost of buying or selling Swiss francs in the future and the prices of both CME Swiss franc currency futures contracts and OTC Swiss franc foreign exchange forwards.” Id. Because the pricing formula incorporates CHF LIBOR, the Complaint asserts, “the CFTC classifies Swiss frane foreign exchange forwards as LIBOR-based derivatives.” Id.
Defendants raise a number of issues with the Complaint’s reliance on this “industry standard formula” to establish that CHF LIBOR is’ a component of the price of Swiss franc futures and FX forwards. First, defendants note that the CME tutorial does not use the term “LIBOR,” let alone .state that LIBOR is used in the formula. Second, they emphasize that the Complaint does not allege that defendants actually used the generic formula to price FX forwards and futures or that plaintiffs actually used or relied on the generic formula in buying or selling the derivatives. Third, because the generic formula uses an interest rate for a period of time equal to the duration of the forwards or futures contracts, defendants argue that CHF LI-BOR cannot be mechanically used to price these derivatives because they do not have a maturity equal to any of the CHF LI-BOR tenors. Indeed, the four specific futures or forwards transactions alleged in the Complaint had maturities of 4, 42, and 77 days, which are’not equal to any of the LIBOR tenors, thus plaintiffs could not have mechanically applied CHF LIBOR in pricing their derivatives. See Compl. ¶¶ 199, 204, 212. Last, defendants point to other CME publications which state that prices of FX futures are negotiated through an auction process, and therefore one cannot simply assume that plaintiffs relied on or incorporated an industry standard formula for their specific transactions. •'
As an initial matter, the Court doubts that Article III standing is the correct framework for evaluating defendants’ argument. At the pleading stage, the Court assumes the truth of the Complaint’s factual allegations when assessing a standing challenge. WC Capital Management, LLC, 711 F.3d at 329. The Complaint alleges that CHF LIBOR affects the price of certain Swiss franc currency derivatives according to a standard mathematical formula, and that defendants used their control over CHF LIBOR to manipulate the price of those derivatives to plaintiffs’1 financial disadvantage. Taking those allegations as true, plaintiffs have clearly alleged an injury in fact. Indeed, defendants do not contend otherwise; they merely dispute that those allegations have been plausibly made. But that challenge collapses the standing and Rule 12(b)(6) analyses. Under defendants’ approach, a plaintiff would lack Article III standing any time the connection between defendants’ conduct and plaintiffs’ harm had been inadequately alleged. This conflating of the standing analysis with the Twombly plausibility analysis is improper because allegations of an injury “need not be capable of sustaining a valid cause' of action” to demonstrate standing. Ross, 524 F.3d at 222. (citation omitted).
In any event, whether evaluated as a standing challenge or a Rule 12(b)(6) challenge in the guise of a standing challenge, defendants’ argument' fails because plaintiffs have adequately alleged at the pleading stage a link between CHF LIBOR and the price of Swiss franc futures and FX forwards. Notably, an order by the CFTC accompanying its settlement with defendant RBS states “Swiss franc derivatives traders traded various derivatives instruments that were priced based on ... Swiss franc LIBOR ... includ[ing] ... foreign exchange ‘FX’ forward.” Compl. ¶ 88 n. 68 (emphasis added). And defendants do not dispute plaintiffs’ assertion that FX forwards and futures are priced in the same manner for our purposes. Moreover, the Complaint offers a detailed, non-concluso-ry theory of the relationship between CHF LIBOR and the price of Swiss franc futures and FX forwards, including a statistical analysis purporting to show how this relationship and defendants’ manipulation affected derivative prices throughout the Class Period. Whatever holes defendants may poke in this theory cannot be resolved at the pleading stage. See Baur v. Veneman, 352 F.3d 626, 631 (2d Cir. 2003) (“[A]t the pleading stage, standing allegations need not be crafted with precise detail, nor must the plaintiff prove his allegations of injury.”).
Last, a plausible connection between CHF LIBOR and the price of Swiss franc currency derivatives is supported by the alleged words and conduct of defendants themselves. For example, in a July 24, 2007 conversation an RBS trader tells another trader “[I] moaned too ... they had 6m libor at 85. I was gonna lose 1.25 bps on 2k futs.” Compl. App’x at 2. And in another conversation between an RBS Swiss franc derivative trader and a trader at an unidentified bank, a request for a manipulated CHF LIBOR quote immediately follows a discussion of “fx” (apparently foreign exchange forwards) basis. Id. ¶ 189. Indeed, it is hard to make sense of defendants’ traders’ specific requests to raise or lower CHF LIBOR quoted in the Complaint without concluding that the traders believed that CHF LIBOR affected the value of the traders’ derivative positions.
Of course, none of this definitively establishes a connection between CHF LIBOR and the price of plaintiffs’ derivatives. As Judge P. Kevin Castel recently explained in rejecting this precise challenge by the defendants in a similar case concerning Euribor manipulation, “[i]f defendants are correct and the Complaint inaccurately describes [LIBOR’s] role in these transactions, the issue could likely be resolved through a summary judgment motion at the proper juncture.” Sullivan, 2017 WL 685570, at *9 (S.D.N.Y. Feb. 21, 2017). But at the pleading stage, plaintiffs have adequately alleged injury from the alleged manipulation of CHF LIBOR with respect to CHF futures and FX forwards.
D. Plaintiffs Have Class Standing to Bring Their CHF LIBOR Manipulation Claims with Respect to Interest Rate Swaps and NYSE LIFFE Exchange Futures Contracts
Having concluded that plaintiffs have standing to bring CHF LIBOR Manipulation Claims for the types of Swiss franc currency derivatives in which they transacted—currency futures and FX forwards—the Court must now consider whether that standing extends to the other types of “Swiss franc LIBOR-based derivatives” identified in the Complaint in which plaintiffs did not transact—“interest rate swaps, forward rate agreements, ... cross-currency swaps, overnight index swaps, and tenor basis swaps ... as well as exchange-traded futures and options, such as the three-month Euro Swiss franc fixtures contract traded on the NYSE LIFFE Exchange.” Compl. ¶ 75.
As noted, plaintiffs may have standing to sue on behalf of a class for injuries they did not personally suffer, so long as they have “suffered some actual injury as a result of the putatively illegal conduct” and that “conduct implicates the same set of concerns as the conduct alleged to have caused injury to other members of the putative class by the same defendants.” NECA-IBEW Health & Welfare Fund, 693 F.3d at 162 (internal quotation marks and alterations omitted). Plaintiffs have alleged injury from defendants’ CHF LIBOR manipulation by alleging a mathematical relationship between CHF LIBOR and the price of the CHF currency futures and FX forwards in which they transacted. That standing would extend to other types of Swiss franc currency derivatives in which plaintiffs did not transact if plaintiffs allege that those other derivatives were affected in a similar way by defendants’ manipulation of CHF LIBOR, because defendants’ conduct would then implicate the same set of concerns for both categories. See Fernandez v. UBS AG, 222 F.Supp.3d 358, 373 (S.D.N.Y. 2016) (plaintiffs had standing because “if defendants’ systematic conduct is tortious with respect to one fund, it is also tortious with respect to another fund, and does not depend on the individualized circumstances of each Fund”).
But it is not clear from the Complaint that CHF LIBOR affects the price of each of the “Swiss franc LIBOR-based derivatives” in the same way. To be sure, the Complaint generally alleges that the price of each of these types of derivatives is affected by CHF LIBOR. However, the “industry standard formula” discussed above is alleged to apply only to Swiss franc FX forwards and Swiss franc currency futures. It is incumbent on plaintiffs to provide at least some minimal description of these other derivatives and how CHF LIBOR factors into their pricing before the Court can conclude that they implicate the same set of concerns as those derivatives in which plaintiffs transacted.
Plaintiffs have met that burden with respect to interest rate swaps and NYSE LIFFE Exchange Futures Contracts by making non-conclusory allegations that the prices of these derivatives would be affected by manipulation of CHF LIBOR in a manner similar to that of Swiss franc futures and FX forwards, by providing the following descriptions:
• Interest Bate Swaps:
[A]n interest rate swap is an over-the-counter Swiss franc LIBOR-based derivative in which one party agrees to pay the other a fixed rate of interest (e.g., 5%) on some underlying notional amount (e.g., CHF 1,000,000) in exchange for receiving payments based on a “floating” or “variable” interest rate, ie., a specific tenor Swiss franc LIBOR. Every fixing date, e.g., once every three months, the fixed interest rate owed by one party is compared to the specific tenor of Swiss franc LI-BOR referenced in the contract.
Compl. ¶ 82.
• NYSE LIFFE Exchange Futures Contracts:
[TJhe LIFFE three-month Euro Swiss franc futures contract, which trades on the NYSE LIFFE Exchange, represents the rate of interest paid on a three-month deposit of CHF 1,000,000. The price and settlement values of this futures contract are equal to 100 minus three-month Swiss franc LIBOR. Because of this formulaic pricing relationship, if Swiss franc LIBOR is artificial and does not reflect the rate of interest being paid on three-month inter-bank deposits of Swiss francs, the price of this futures contract will also be artificial.
Id. ¶ 86.
But there is no comparable description for the remaining types of “Swiss franc LIBOR-based derivatives”: forward rate agreements, cross-currency swaps, overnight index swaps, and tenor basis swaps. Indeed, the Complaint makes no effort whatsoever to define these derivatives or explain how they are affected by CHF LIBOR. The Court therefore cannot conclude that these derivatives implicate the same concerns as the Swiss franc futures and FX forwards in which plaintiffs trans-. acted.
In summary, plaintiffs have Article III standing to pursue their CHF LIBOR Manipulation Claims with respect to Swiss franc futures, FX forwards, interest rate swaps, and NYSE LIFFE Exchange futures contracts, but have failed to demonstrate standing as to forward rate agreements, cross-currency swaps, overnight index swaps, and tenor basis swaps.
III. Standard of Review for Motion to Dismiss for Failure to State a Claim
Defendants move to dismiss each of the counts for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). When ruling on such a motion, a court accepts the truth of the facts alleged in the complaint and draws all reasonable inferences in the plaintiffs favor. Wilson v. Merrill Lynch & Co., Inc., 671 F.3d 120, 128 (2d Cir. 2011). However, “conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss.” Smith v. Local 819 I.B.T. Pension Plan, 291 F.3d 236, 240 (2d Cir. 2002) (internal quotation marks omitted). To survive a motion to dismiss, plaintiffs must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged,” meaning there is “more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). If plaintiffs “have not nudged their claims across the line from conceivable to plausible,' their complaint must be dismissed.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955.
On a motion to dismiss, the court “do[es] not look beyond facts stated on the face of the complaint, ... documents' appended to the complaint or incorporated in the complaint by reference, and ... matters of which judicial notice may be taken.” Goel v. Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016) (citation omitted).
IV. Antitrust Claim (Count Two)
Count Two alléges that defendants colluded to manipulate CHF LIBOR, and' thereby the price of CHF LIBOR based derivatives, in violation of section one of the Sherman Act, which provides: “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.” 15 U.S.C. § 1. Section 4 of the Clayton Act provides a private right of action, with recovery of treble damages, to “any person who [has been] injured in his business or property by reason of anything forbidden in the antitrust laws,” including section one of the Sherman Act. 15 U.S.C. § 15(a); see also Concord Associates, L.P. v. Entertainment Properties Trust, 817 F.3d 46, 52 (2d Cir. 2016).
To survive a motion to dismiss this claim, plaintiffs must (1) allege anti-competitive conduct by defendants that violates section one, and (2) demonstrate antitrust standing, which depends on a showing of antitrust injury and that plaintiffs are “efficient enforcers” of the antitrust laws. Gelboim, 823 F.3d at 770-72.
■ Defendants argue. that plaintiffs have fallen short at each of these steps. According to defendants, the Complaint fails to allege anticompetitive conduct in violation of section one because setting CHF LI-BOR was a cooperative, not competitive, process, and in any, event there has been no plausible showing of a conspiracy among defendants to manipulate CHF LI-BOR. Further, defendants contend that plaintiffs have not suffered antitrust injury because plaintiffs have not shown a connection between CHF LIBOR and the price of their derivatives, or because any such connection is too attenuated to give rise to a cognizable injury under the antitrust laws. Defendants also maintain , that plaintiffs are not efficient enforcers of these alleged violations because, among other reasons, damages would be highly speculative and difficult to calculate. Last, defendants assert that plaintiffs’- claim is barred by the Foreign Trade Antitrust Improvements Act of 1982 (“FTAIA”), 15 U.S.C. § 6a, and by the statute of limitations.
. Count Two .is dismissed against all defendants because the Complaint alleges a plausible antitrust conspiracy only as to RBS, yet the plaintiffs have antitrust standing to sue only UBS and the Credit Suisse Defendants, those defendants with whom they directly transacted.
A. Conduct in Violation of Section One
1. The Alleged Conduct Constitutes a Restraint of Trade
In their briefing, defendants maintain that plaintiffs have not alleged any competition-reducing conduct because “LIBOR-setting was an inherently cooperative process and not a competitive one,” and thus any manipulation did not constitute “any restraint of trade whatsoever.” Doc. 73 at 2, 14. However, this argument has been essentially disclaimed in subsequent letters due to intervening developments in the case law.
Whether benchmark manipulation constitutes anticompetitive conduct was a question that formerly divided courts in this district, but the Second Circuit resolved that question last year in Gelboim v. Bank of America, 823 F.3d 759 (2d Cir. 2016). Gelboim involved an appeal from a dismissal of antitrust claims based on, inter alia, a finding that LIBOR setting was not a competitive process and thus any collusion in that process could not support a Section One claim. The Second Circuit reversed the district court, holding that such collusion constitutes a per se “illegal anticompetitive practice” of horizontal price fixing by distorting a “joint process ... into collusion.” 823 F,3d at 775. That holding applies here, and accordingly the Court concludes that collusion to manipulate CHF LIBOR constitutes anticompeti-tive conduct that could give rise to a claim under section one of the Sherman Act.
2. Plaintiffs Allege a Plausible Antitrust Conspiracy Against Only RBS
Defendants next argue that Count Two fails because the Complaint fails to allege a plausible antitrust conspiracy. “In order to establish a conspiracy in violation of § 1 ... proof of joint or concerted action is required; proof of unilateral action does not suffice.” Anderson News, L.L.C. v. Am. Media, Inc., 680 F.3d 162, 183 (2d Cir. 2012). To allege a conspiracy sufficient to survive a motion to dismiss, a plaintiff must “allege enough facts to support the inference that a conspiracy actually existed,” which can be done in two ways. Mayor & City Council of Baltimore, Md. v. Citigroup, Inc., 709 F.3d 129, 136 (2d Cir. 2013). “First, a plaintiff may, of course, assert direct evidence that the defendants entered into an agreement in violation of the antitrust laws.” Id. But because “this type of ‘smoking gun’ can be hard to come by, especially at the pleading stage,” a complaint may instead “present circumstantial facts supporting the inference that a conspiracy existed.” Id. “The line separating conspiracy from parallelism is indistinct, but may be crossed with allegations of interdependent conduct, accompanied by circumstantial evidence and plus factors. These plus factors include: (1) a common motive to conspire; (2) evidence that shows that the parallel acts were against the apparent individual economic self-interest of the alleged conspirators;, and (3) evidence of a high level of interfirm communications.” Gelboim, 823 F.3d at 781 (internal quotation marks omitted).
“Collusion within a bank will not s