United States District Court, S.D. New York
MEMORANDUM OPINION AND ORDER
GREGORY H. WOODS, United States District Judge
last nine years, Plaintiff Susan Levy has been searching for
someone to make her whole for a failed investment. In 2008,
Ms. Levy, an attorney, lost her entire investment in New York
Mercantile Exchange (“NYMEX”) futures contracts
for the precious m platinum. Four years later, in 2012, Ms.
Levy filed a lawsuit in the U.S. District Court for the
Eastern District of New York, alleging that various NYMEX
traders and John Doe defendants colluded to crash the market
and manipulate the price of these contracts, thereby causing
her losses. That case was transferred to this district, and
was voluntarily dismissed following a settlement on December
3, 2014. She now claims that, thanks to the information
contained in a putative class action complaint filed on
November 25, 2014-when her first lawsuit was still
pending-she has discovered the true cause of her losses.
class action complaint alleged that defendants BASF
Corporation (“BASF Corp.”), BASF Metals Limited
(“BASF Metals” and, together with BASF Corp.,
“BASF”), Goldman Sachs International
(“Goldman Sachs”), HSBC Bank USA, N.A.
(“HSBC”), ICBC Standard Bank Plc
(“ICBC”), UBS AG, UBS Securities LLC (“UBS
Securities” and, together with UBS AG,
“UBS”), and the London Platinum and Palladium
Fixing Company Ltd. (“LPPFC”) manipulated and
artificially suppressed the price of physical platinum and
palladium. After copying a significant number of the factual
allegations from the class action complaint, attempting to
connect those facts to her 2008 injury, and adding twenty
John Doe defendants (together with the above-named financial
institutions and organizations, “Defendants”),
Plaintiff filed the complaint in this case in September 2015.
Ultimately, Ms. Levy's claims-all of which arise out of
the 2008 injury-have been brought too late, and there is no
equitable reason that would permit her to bring yet another
complaint to recover her nearly decade-old failed investment.
Defendants' motion to dismiss the Second Amended
Complaint (“SAC”) is therefore GRANTED.
Levy's suit stems from the alleged manipulation of the
futures market for the precious Metals platinum and
palladium. Because Ms. Levy relies substantially on the facts
presented in the complaint brought in the related class
action, and incorporates that complaint by reference, the
Court refers the reader to its opinion and order granting the
motion to dismiss that complaint. See In re Platinum and
Palladium Antitrust Litig., 14-cv-9391-GHW, Dkt. No. 102
(“Class Action Complaint”); Dkt. No. 179, 2017 WL
1169626 (S.D.N.Y. Mar. 28, 2017) (“Class Action
Opinion”); see also SAC, Dkt. No. 121, ¶
260. The Class Action Opinion contains a more fulsome
description of the London Platinum and Palladium Market
(“LPPM”), the process by which the Defendants
“fixed” the price of these precious Metals
through a twice-daily auction process, and Defendants'
alleged collusion to manipulate the market. Assuming
familiarity with the facts presented in that opinion, the
Court summarizes below the facts relevant to deciding
Defendants' motion to dismiss Ms. Levy's complaint.
Levy purchased NYMEX platinum futures contracts in
2008. SAC ¶ 155. According to the SAC,
beginning in the summer of 2008, the prices of NYMEX platinum
“began to collapse” and Ms. Levy's investment
lost value. SAC ¶ 474. On August 15, 2008, Ms. Levy
received a margin call, requiring her to liquidate her
platinum positions and sell her investments at a loss. SAC
¶ 475. On that day, Ms. Levy alleges that there was a
“seismic gyration crashing the market, ”
resulting in her “total losses.” SAC ¶¶
24, 478, 575. Ms. Levy claims that this loss was due to
collusion between Defendants to fix the price of precious m
futures contracts through the London-based auction process.
She alleges that Defendants violated the Commodities Exchange
Act, 7 U.S.C. § 1, et seq. (“CEA”),
the Sherman Act, 15 U.S.C. §§ 1-2 and New York
State antitrust laws (N.Y. Gen. Bus. Law § 340, et
seq.), and the Racketeer Influenced and Corrupt
Organization Act, 18 U.S.C. § 1961, et seq.
(“RICO”) in working together to manipulate the
price of platinum.
allegations are not so dissimilar from those Ms. Levy raised
in her 2012 lawsuit. In that case, Ms. Levy also alleged that
various individuals and corporations colluded to manipulate
the price of NYMEX platinum contracts. See Levy v. Joseph
Welsh et al., 12-cv-2056 (E.D.N.Y.), 13-cv-01858
(S.D.N.Y.). There, she alleged that the defendants in
that case-including forty John Doe defendants-caused
“sudden gyrations” in the market that led to the
August 15, 2008 margin call and her resulting monetary
losses. 2012 Am. Compl. ¶ 255. Just as she does here, in
that case, Ms. Levy brought claims under the CEA, RICO, and
sections 1 and 2 of the Sherman Act seeking remedies for her
2008 injury. Ms. Levy voluntarily dismissed the complaint in
that lawsuit on December 2, 2014. Levy v. Welsh,
13-cv-01858, Dkt. No. 120.
there are a number of similarities between this case and her
previous one, in the complaint in this action, Ms. Levy
borrows heavily from the factual allegations contained in the
Class Action Complaint. SAC ¶ 260 (incorporating by
reference the data presented in the Class Action Complaint).
That complaint alleged that over the class period of January
1, 2008 to November 30, 2014, Defendants worked together to
suppress the price of platinum and palladium at prices lower
than market forces would otherwise have set. Class Action
Compl. ¶¶ 1, 4, 97. As support for this allegation,
the class action plaintiffs presented data demonstrating
large “anomalous” downward spikes in the prices
of the platinum and palladiu Metals hortly before the time of
the twice-daily auction calls during which Defendants
“fixed” the price of these precious Metals. Class
Action Compl. ¶ 92. The Class Action Complaint does not
allege, however, that at any point during the class period
Defendants' alleged price suppression caused the class
members to suddenly lose their entire investment. To the
contrary, the Class Action Complaint notes that palladium
prices “have been in a general upward trend”
since the beginning of the class period and that platinum
prices tripled from January 2000 through December 2013. Class
Action Compl. ¶¶ 100, 125 & fig. on p. 41.
the Class Action Complaint does not suggest the kind of loss
that Ms. Levy alleges in the SAC, Ms. Levy makes additional
allegations in an apparent attempt to make her 2008 loss
cohere with the data asserted in the class action and the
theory of damages that data was presented to support. First,
Ms. Levy argues that the August 15, 2008 margin call and her
resulting loss occurred when Defendants “decided to
crash the market by covering their short positions.”
SAC ¶ 11. Ms. Levy also states that the Defendants
“artificially suppressed prices en mass in August of
2008, ” which caused members of the public to sell
their positions, and that those sales caused a collapse of
the market. SAC ¶ 183. In another part of the SAC, Ms.
Levy contends the August 2008 market crash was the result of
Defendants “selling off their large holdings in the
Physical Market in London to create fraudulent profits”
throughout the winter, spring, and summer of 2008. SAC ¶
422. Yet in that same paragraph she also alleges that the
August margin call was “sudden and unexpected”
and later claims that the suppression of market prices by
Defendants was similarly “sudden.” SAC
¶¶ 422, 575. In addition to these disparate and
inconsistent allegations, Ms. Levy alleges that the
Defendants caused the crash on the market by “failing
to properly coordinate their scheme with other precious
Metals traders who were also manipulating the market in the
same fashion as the platinum and palladium traders including
gold, palladium and silver.” SAC ¶¶ 11, 485.
That is, Ms. Levy contends that her loss was the result of
scheming traders in distinct markets failing to coordinate
their illicit acts well enough.
September 16, 2015, Plaintiff filed the complaint in this
action, alleging causes of action under the CEA, RICO,
sections 1 and 2 of the Sherman Act, New York State antitrust
laws, for unjust enrichment, and for tortious interference
with prospective advantage.
amended her complaint once as a matter of right in January
2016, and again in April 2016 in response to Defendants'
March 14, 2016 motion to dismiss. On August 31, 2016,
Defendants again moved jointly to dismiss the SAC. Dkt. No.
129. In addition to filing a joint memorandum of law, certain
groups of defendants also filed their own memoranda of law in
support of the motion to dismiss. Dkt. Nos. 132 (BASF), 133
(LPPFC), 134 (UBS), 136 (ICBC). Plaintiff filed her
opposition on September 29, 2016, Dkt. No. 153, and
Defendants replied on October 13, 2016, Dkt. No. 159.
the statute of limitations for all of Plaintiff's claims
has expired, and because there is no equitable reason to
permit tolling of the statute of limitations in this case,
Plaintiff's CEA, RICO, and Sherman Act claims are
dismissed. The Court declines to extend supplemental
jurisdiction over the remaining state law claims in
Plaintiff's complaint. Defendants' motion to dismiss
the SAC is therefore GRANTED.
Federal Rule of Civil Procedure 8(a)(2), a complaint must
contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Rule 8
“does not require detailed factual allegations, but it
demands more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
survive a motion to dismiss pursuant to Rule 12(b)(6), a
complaint “must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Iqbal, 556 U.S.
at 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (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.”
Id. (citing Twombly, 550 U.S. at 556).
“To survive dismissal, the plaintiff must provide the
grounds upon which his claim rests through factual
allegations sufficient ‘to raise a right to relief
above the speculative level.'” ATSI
Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98
(2d Cir. 2007) (quoting Twombly, 550 U.S. at 544).
whether a complaint states a plausible claim is a
“context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679. The court must
accept all facts alleged in the complaint as true and draw
all reasonable inferences in the plaintiff's favor.
Burch v. Pioneer Credit Recovery, Inc., 551 F.3d
122, 124 (2d Cir. 2008) (per curiam). However, a complaint
that offers “labels and conclusions” or
“naked assertion[s]” without “further
factual enhancement” will not survive a motion to
dismiss. Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 555, 557).
courts are instructed to read pro se complaints with
“special solicitude” and interpret them “to
raise the strongest arguments that they suggest.”
Triestman v. Fed. Bureau of Prisons,470 F.3d 471,
474-75, 477 (2d Cir. 2006). However, where plaintiff is an
attorney-as Plaintiff is here-she is not entitled to the same
liberal construction as would other pro se
plaintiffs. Gundlach v. IBM Japan, Ltd., 983
F.Supp.2d 389, 393 (S.D.N.Y. 2013), aff'd sub nom.
Gundlach v. Int'l Bus. Machs. Inc., 594 F. App'x
8 (2d Cir. 2014); see also Fenner v. City of N.Y.,
No. 08-CV-2355, 2009 WL 5066810, at *3 (E.D.N.Y. Dec. 21,
2009) (“Although pro se litigants are
generally entitled to a broad reading of their submissions
because of their lack of familiarity with the law, that is
not the case with attorneys who have chosen to proceed
pro se. It is well settled in the Second Circuit