Second Circuit

Introduction

In 2021, the United States Court of Appeals for the Second Circuit issued a number of important decisions addressing core antitrust doctrines and related procedural issues. Notably, following the Supreme Court’s remand in the Vitamin C Antitrust Litigation, the Second Circuit explained why, in adhering to its prior ruling reversing the district court’s judgment and dismissing a claim alleging the fixing of vitamin C prices, it continued to give deference to a Chinese government agency’s view that the defendants’ alleged anticompetitive conduct was compelled by foreign law. The Second Circuit also issued an important decision in the 1-800 Contacts case, reversing the US Federal Trade Commission’s (FTC) finding that settlements regarding the use of trademarks in search advertising auctions are anticompetitive. Antitrust litigation involving the credit card industry also continued to populate dockets in the Second Circuit. And, as in prior years, the Second Circuit issued several key opinions in respect of financial products and the setting of financial benchmarks.

Precedential holdings

SIBOR antitrust litigation

On 17 March 2021, the Second Circuit vacated the Southern District of New York’s dismissal of a putative antitrust class action on standing and subject matter jurisdiction grounds.[1] The Second Circuit held that the pre-lawsuit dissolution of the named plaintiffs did not render the action a legal nullity and deprive a federal court of subject matter jurisdiction, provided that the assignee of the named plaintiffs’ claims had standing to prosecute the claims as the real party in interest when the suit was filed and joined or substituted into the action within a reasonable time.

In 2016, two Cayman Island investment funds, FrontPoint Asian Event Driven Fund LP (FrontPoint) and Sonterra Capital Master Fund, Ltd (Sonterra), brought a putative class action lawsuit alleging that, from 2007 to 2011, the defendant banks conspired to manipulate two benchmark rates – the Singapore Interbank Offered Rate (SIBOR) and the Singapore Swap Offered Rate (SOR) – to reduce the amount of interest paid to holders of financial instruments based on SIBOR and SOR. After initial motion practice, however, it was revealed that FrontPoint and Sonterra had been dissolved before the action was brought and had purportedly assigned the rights to their claims to Fund Liquidation Holdings LLC (Fund Liquidation). In response to the defendants’ renewed motions to dismiss for lack of standing, the plaintiffs amended their complaint to name Fund Liquidation as plaintiff and to add two other plaintiffs, Moon Capital Partners Master Fund, Ltd and Moon Capital Master Fund, Ltd (the Moon Funds). The district court dismissed the amended complaint, finding that, under the ‘nullity doctrine’, the action was an incurable nullity because the suit was originally brought by plaintiffs who lacked capacity to sue. The district court also found that the Moon Funds were not entitled to equitable tolling and thus dismissed the claims brought on their behalf as untimely.

On appeal, the Second Circuit vacated the district court’s decision. The Second Circuit agreed that FrontPoint and Sonterra lacked standing because they did not exist at the time the suit was brought. Nonetheless, the court found that Fund Liquidation had standing because, in the court’s view, it was the real party in interest – as the assignee of the rights to the dissolved funds’ claims – and was willing to join the action. The Second Circuit held that Article III standing[2] is met ‘so long as a party with standing to prosecute the specific claim in question exists at the time the pleading is filed’ and this party ratifies, joins, or is substituted into the action ‘within a reasonable time’.[3] In so holding, the Second Circuit acknowledged that this holding is a minority view and that the ‘far more common view’ under such circumstances is to enforce the ‘nullity doctrine’, which holds that a case brought ‘in the name of a plaintiff that lacks standing is an incurable nullity’.[4] After observing that ‘whether to adopt the nullity doctrine is still an open question in our Circuit’, the Second Circuit reviewed its precedent regarding standing requirements under Article III and found that, where a real party in interest with standing since the case’s inception was willing to join the proceeding, an initial complaint’s failure to include a plaintiff with standing could be treated as a defective jurisdictional allegation that could be cured through amended pleadings.[5]

The Second Circuit also held that the district court incorrectly dismissed the Moon Funds’ claims. Under the American Pipe tolling doctrine, the statute of limitations is, in some circumstances, tolled during the pendency of a federal putative class action to allow unnamed class members to file individual claims if the class is not certified. The district court had interpreted the Supreme Court’s holding in China Agritech, Inc v Resh that ‘American Pipe does not permit the maintenance of a follow-on class action past expiration of the statute of limitations’ to bar the Funds’ claims.[6] The Second Circuit disagreed, however, explaining that China Agritech prevents a follow-on class action beyond the limitations period, not an amendment to the same class action to add new class representatives. The Second Circuit therefore found the amendment adding the Moon Funds timely.

The Second Circuit cautioned that its rejection of the nullity doctrine in this case should not be allowed to ‘result in unchecked abusive practices by plaintiffs’ because Rule 17 of the Federal Rules of Civil Procedure permits district courts to deny joinder of a real party in interest if the joinder motion is made in bad faith, in an effort to deceive or prejudice the defendants, or is otherwise unfair or unreasonable.[7]

1-800 Contacts, Inc v Federal Trade Commission

On 11 June 2021, the Second Circuit vacated the determination by the FTC that 1-800 Contacts’ settlement agreements regulating the use of its trademarks in internet search advertising auctions violated the antitrust laws.[8] The Second Circuit held that, although trademark settlements are not immune from antitrust scrutiny, the FTC improperly deemed the agreements ‘inherently suspect’ and also wrongly concluded that they violated the antitrust ‘rule of reason’.

The FTC filed an administrative complaint against 1-800 Contacts, the leading online retailer of contact lenses, in 2016. According to the complaint, the company’s settlements with competitors between 2004 and 2013 violated the antitrust laws by restricting access to truthful advertising, preventing consumers from discovering lower-priced sellers, and reducing the revenues of search engines such as Google. The settlement agreements prohibited the settling counterparty from using 1-800 Contacts’ trademarks as a bidding term in internet search auctions. The purpose of the agreements was to ensure that when a person searched for the term ‘1-800 Contacts’ using a search engine, competitors could not unfairly use 1-800 Contacts’ trademarks to cause the search engine to display paid advertisements of the settling counterparties.

In 2018, the FTC found that 1-800 Contacts violated antitrust law with these settlements on the grounds that they were ‘inherently anticompetitive’ and 1-800 Contacts did not offer cognizable justifications for entering the settlements. The Second Circuit rejected the FTC’s finding that the trademark settlements were inherently anticompetitive and found the FTC’s abbreviated antitrust analysis based on this finding improper. Applying instead the default ‘rule of reason’ analysis, the Second Circuit first found that the FTC failed to provide direct evidence that any difference in price between 1-800 Contacts and its online competitors was a result of the settlements. The Second Circuit next found that, even assuming a possible anticompetitive effect, 1-800 Contacts’ interest in protecting its trademarks was a valid procompetitive justification for the settlements. The Second Circuit held that trademark settlements are subject to antitrust scrutiny, but are ‘common, and favored, under the law’.[9] Finally, the Second Circuit rejected the FTC’s claim that the settlements should have been structured so that they were ‘less restrictive’ of competition, and thus confirmed that litigants are in the best position to know what is ‘reasonably necessary’ to resolve their trademark disputes.

The Second Circuit vacated the FTC’s final order and the case was remanded to the FTC for dismissal.

In re Vitamin C Antitrust Litigation

On 10 August 2021, the Second Circuit adhered to its prior ruling dismissing price-fixing claims against two Chinese vitamin C exporters after the Supreme Court remanded the case for further consideration of the appropriate weight to apply to submissions to the court from the Ministry of Commerce of the People’s Republic of China (the Ministry).[10] Following the Supreme Court’s directive to ‘carefully consider but [] not defer conclusively’ to submissions from the Ministry, the Second Circuit nevertheless agreed, in a split decision, that the case should still be dismissed on international comity grounds.[11]

The plaintiffs brought a putative class action in 2005 alleging that four Chinese exporters of vitamin C conspired to restrict supply in violation of Sections 4 and 16 of the Clayton Act and Section 1 of the Sherman Act, to the detriment of bulk buyers of vitamin C in the United States. The defendants (two exporters who refused to settle and went to trial) were ordered by a jury to pay treble damages of more than $147 million. The Second Circuit reversed the judgment in 2016, holding that the trial court was bound to defer to the explanation of Chinese law submitted by the Ministry because it was reasonable under the circumstances. In deferring to the Ministry’s submission, the Second Circuit found that Chinese law required the defendants to undertake anticompetitive conduct, and the defendants could not comply with both China’s regulatory scheme and US antitrust law. The Second Circuit held that this ‘true conflict’ of law, along with other international comity factors, mandated dismissal of the plaintiffs’ suit. The Supreme Court reversed in 2018, directing the Second Circuit to give ‘respectful consideration’ but not dispositive effect to the Ministry’s views.

On remand, the Second Circuit considered the Ministry’s amicus curiae brief, which explained that China’s transformation from a state-run command economy to a more market-driven economy would likely be misunderstood by a US court. For example, whereas the plaintiffs had alleged that the Chinese Chamber of Commerce of Medicines and Health Products Importers and Exporters (the Chamber) operated like a trade association facilitating ‘the collusive actions of a cartel’, the Ministry’s brief clarified that the Chamber actually served as part of ‘a regulatory pricing regime mandated by the government of China’ to stabilize its export market, promote profitability, and protect national interests.[12] The Second Circuit held, therefore, that Chinese law required the defendants to engage in price-fixing conduct violative of US antitrust law. Although US Circuit Judge Richard C Wesley argued in his dissenting opinion that the majority overemphasized the conflict of law because the regulatory regime at issue was not mandatory, the majority countered that, although the exporters could technically withdraw from the price-setting committee, as China’s only manufacturers of vitamin C, ‘the defendants were key players in an industry which the Chinese government required to engage in “industry-wide” negotiations’ and ‘vis-à-vis the more general obligation to exchange information and coordinate on price and volume’, they had ‘no exit from the irreconcilable conflict between Chinese law and US antitrust law’.[13]

The plaintiffs have sought further review of the Second Circuit’s decision before the Supreme Court.

American Express Anti-Steering Rules Antitrust Litigation

On 22 November 2021, the Second Circuit affirmed the Eastern District of New York’s dismissal of an antitrust suit brought by a group of commercial merchants against American Express (Amex).[14] The Second Circuit held that because the plaintiff merchants in this case did not accept Amex cards, their injury was too attenuated from Amex’s alleged conduct and, therefore, they lacked antitrust standing.

The plaintiff merchants in this case alleged that although they did not accept Amex cards, the anti-steering provisions in Amex’s contracts with its merchants, which prohibit merchants that accept Amex from steering customers toward non-Amex forms of payment, when combined with Amex’s higher merchant fees, caused credit card fees to increase across the industry. Their theory was that, because the anti-steering provisions prevented competing credit card networks from passing on the benefit of lower fees to cardholders and thereby steering cardholder transactions toward non-Amex cards, competing credit card networks lose incentives to compete with Amex by offering lower merchant fees. The district court dismissed the claims of the non-Amex merchants for lack of antitrust standing, finding that they were not ‘efficient enforcers’ of the antitrust laws under the applicable precedents.

The Second Circuit affirmed the dismissal, without reaching the plaintiffs’ argument on antitrust injury. The Second Circuit found that the plaintiffs did not satisfy the ‘first-step rule’ and, therefore, were not efficient enforcers. Under the first-step rule, injuries are considered proximately caused by the defendant’s harmful behavior when they are the injuries most directly caused by that behavior. Injuries of other market participants further removed from the alleged conduct are not considered to be proximately caused by the alleged conduct, and these market participants typically will not be efficient enforcers to pursue antitrust claims regarding the alleged conduct. Here, Amex’s alleged antitrust violation would have directly harmed Amex-accepting merchants rather than the plaintiffs. The plaintiffs’ injury, if any, was several steps removed from, and derivative of, any injuries of Amex-accepting merchants. The plaintiffs asserted that Amex’s conduct enabled it to charge artificially high fees to Amex-accepting merchants, which in turn enabled other credit card networks to increase their merchant fees, including the fees charged to merchants that do not accept Amex. According to the Second Circuit, the plaintiffs were harmed not by Amex but by those of Amex’s competitors who allegedly increased their merchant fees as a result of Amex’s conduct. Because there was no direct relationship between the plaintiffs’ injury and Amex’s alleged violation under the first-step rule, the plaintiffs were not efficient enforcers and lacked antitrust standing. The Second Circuit also found that the fact that there were Amex-accepting merchants who had already brought a lawsuit based on their alleged direct harm, and the fact that the plaintiffs’ damages calculation relied on speculation, were additional factors that supported the finding that the plaintiffs were not efficient enforcers. The Second Circuit affirmed dismissal of the plaintiffs’ California state law claims for the same reason.

United Food & Commercial Workers Local 1776 & Participating Employers Health & Welfare Fund v Takeda Pharmaceutical Company Ltd

On 25 August 2021, the Second Circuit affirmed the denial of a motion to dismiss a complaint asserting that a drug company’s false descriptions in FDA applications caused an illegal extension of monopoly pricing of ACTOS, a brand name Type-2 diabetes drug, in violation of the Sherman Act.[15]

The plaintiffs claimed that the company violated Section 2 of the Sherman Act by maintaining an illegal monopoly on the drug after its legal patent monopoly expired. The company argued that, even if it did improperly list patents for the drug and, therefore, improperly extend its monopoly against generic alternatives, it could not violate Section 2 unless its actions were ‘willfully improper’ conduct. The Second Circuit rejected the company’s interpretation and pointed to the Third Circuit’s holding in In re Lipitor Antitrust Litigation that ‘benign intent does not shield anticompetitive conduct from liability’.[16] Because the standard does not simply extend to ‘willfully improper’ conduct, the plaintiffs needed only to allege plausibly that the company had market power and that it incorrectly listed its patents, extending its monopoly and causing antitrust injury. The Second Circuit agreed with the district court that the complaint thus adequately alleged an antitrust violation.

BBA LIBOR Antitrust Litigation

On 30 December 2021, the Second Circuit affirmed in part and reversed in part the Southern District of New York’s dismissal of a suit brought by purchasers of benchmark-indexed bonds alleging that financial institutions conspired to suppress the London Interbank Offered Rate (LIBOR) benchmark rate.[17] The Second Circuit affirmed the district court’s holding that certain plaintiffs lacked antitrust standing to bring claims because they did not transact in LIBOR-linked financial instruments directly with any defendant, and reversed the district court’s finding that it lacked personal jurisdiction over the foreign defendants.

In its antitrust standing analysis, the Second Circuit found that the plaintiffs had sufficiently alleged an antitrust injury because they alleged they were underpaid as a result of the conspiracy to suppress LIBOR. Merely suffering an antitrust injury, however, is not enough to confer antitrust standing. In addition to antitrust injury, a plaintiff must show that it is an efficient enforcer of the antitrust laws, or that their alleged injuries are not too far removed from the allegedly unlawful conduct. Here, many of the plaintiffs were pursuing claims based on alleged underpayments flowing from LIBOR-linked transactions with third parties, not the defendants. The Second Circuit held that these plaintiffs were not efficient enforcers because the defendants were not involved in these transactions. The decision of a plaintiff and a third party to use LIBOR in their contracts was too far removed from the alleged misconduct and, therefore, the plaintiffs transacting with third parties were not efficient enforcers of the antitrust laws. Further, the Second Circuit found that creating potential exposure for the named defendants for every LIBOR-linked contract in the world would be ‘disproportionate to [the] wrongdoing’.[18]

Furthermore, the Second Circuit held that the district court had personal jurisdiction over certain foreign defendants based on conspiracy jurisdiction and reversed the district court’s finding to the contrary. The Second Circuit’s analysis hinged on the plaintiffs’ allegations of overt acts to direct the conspiracy occurring within the United States, specifically that managers and executives in the United States directed the suppression of LIBOR.

The Second Circuit remanded the case back to the Southern District of New York for further proceedings.

Summary Orders

Spinner Consulting LLC v Stone Point Capital LLC

On 13 April 2021, the Second Circuit affirmed the District of Connecticut’s dismissal of a price-fixing conspiracy suit brought by Spinner Consulting LLC.[19] The plaintiff alleged that the defendant, a private equity firm, conspired to fix the price of certain bankruptcy support services by causing one of its funds to acquire a controlling stake in Bankruptcy Management Solutions (BMS) in order to join a previously established horizontal price-fixing conspiracy between BMS and its competitors. The plaintiff alleged that, following the acquisition, the defendant directed BMS’s continued participation in the alleged conspiracy.

The Second Circuit held that, in order to prevail, the plaintiff had to plead facts showing that the defendant participated in an agreement and that it was insufficient merely to show parallel conduct that did not support an inference of a prior agreement by the defendant. Here, the complaint focused on showing that BMS entered into a horizontal price-fixing conspiracy with its competitors years before it was acquired by the defendant and that, after the acquisition, the defendant directed BMS to continue using the pricing model that had been in place for some six years before the acquisition. The Second Circuit found that it was insufficient to allege that the defendant merely continued to use the pricing model that had previously been established through a price-fixing conspiracy in which the defendant did not participate. Such actions would just suggest parallel conduct and not an agreement by the defendant.

Alaska Department of Revenue, Treasury Division v Manku

On 19 July 2021, the Second Circuit affirmed the Southern District of New York’s partial final judgment in an action brought under Section 1 of the Sherman Act against dealers of US dollar-denominated supranational, sovereign, and agency (USD SSA) bonds, finding that the claimed antitrust conspiracy was implausible as alleged and, thus, did not meet the federal pleading standard to survive a motion to dismiss.[20]

The plaintiffs – the Alaska Department of Revenue, Treasury Division, the Alaska Permanent Fund Corporation, and the Iron Workers Pension Plan of Western Pennsylvania – were US investors who traded in USD SSA bonds. The plaintiffs alleged that all defendants – several banks operating as dealers in the USD SSA bond market and certain of their former employees who were responsible for the banks’ USD SSA trading business – collaborated and shared information with one another such ‘that they effectively ceased’ operating separately in the USD SSA bond market ‘and instead functioned as a single, unitary “super-desk”’.[21] The plaintiffs asserted that, for every single SSA bond transaction during the class period, the defendants conspired not to compete against each other in the secondary market for USD SSA bonds, and instead cooperated to achieve prices and terms that were more favorable to them and worse for their customers.

The district court entered a partial final judgment dismissing the plaintiffs’ federal antitrust claims against one set of defendants for failure to state a claim and against two other sets of defendants for lack of personal jurisdiction and improper venue.

The Second Circuit affirmed the district court’s ruling, concluding that the plaintiffs did not allege sufficient factual detail to establish the plausibility of the claimed conspiracy. The Second Circuit found that the conspiracy alleged by the plaintiffs – a ‘super-desk’ involving more than 20 entities in different countries as well as individual traders, conspiring ‘[e]very day, nearly all day’, tainting every one of their trades for some seven years – was simply not plausible because they failed to explain how the conspirators were able to wield such control over the secondary market.[22] Further, the Second Circuit found that the plaintiffs also failed to link each of the defendants individually to specific acts of anticompetitive conduct in furtherance of the conspiracy. Although the Second Circuit agreed with the district court that the plaintiffs adequately alleged anticompetitive conduct on the part of certain individual defendants, it concluded that the broad conspiracy alleged by the plaintiffs was not plausible and affirmed the district court’s dismissal of the plaintiffs’ claims. Because the Second Circuit affirmed the dismissal of plaintiffs’ claims as to all defendants based on the plaintiffs’ failure to plead a plausible conspiracy, the Second Circuit did not reach the issues of personal jurisdiction, venue, and jurisdictional discovery.

City of Long Beach v Total Gas & Power North America, Inc

On 3 December 2021, the Second Circuit affirmed the Southern District of New York’s dismissal of a putative class action alleging, under Section 2 of the Sherman Act, that the three defendants – Total Gas & Power North America, its French parent company Total, SA, and Total Gas & Power, Ltd, a UK subsidiary of Total SA – unlawfully manipulated various indices used to price natural gas contracts traded at four hubs in the Southwestern United States.[23] The plaintiff claimed that this conduct caused it to pay artificially inflated prices for natural gas that it purchased at one such hub.

The district court found that the plaintiff lacked antitrust standing because price manipulation by a single entity, without more, is insufficient to establish an antitrust injury, because price manipulation on its own ‘has nothing to do with competition’ and because the plaintiff ‘did not allege that defendant’s strategically timed trades involved the willful attainment, maintenance, or exercise of monopoly power’.[24]

The Second Circuit affirmed the district court’s decision, noting that to demonstrate the type of predatory pricing prohibited under Section 2 of the Sherman Act, a plaintiff must plead that the defendant manipulated prices with the goal of eliminating its competitors from the market and that its actions were intended to be exclusionary. The Second Circuit found that the complaint lacked any such allegations and affirmed the district court’s dismissal.

LIBOR Antitrust Litigation

On 14 February 2022, the Second Circuit dismissed an appeal in a proposed class action against a group of financial institutions regarding alleged collusion in and after February 2014 in the setting of LIBOR.[25] The Second Circuit held that an intervenor and proposed substitute class representative, DYJ Holdings (DYJ), which did not participate in the district court proceedings, lacked Article III standing to appeal the district court’s judgment dismissing the suit because it was neither a party to the earlier proceedings nor bound by the judgment.

The original suit alleged that, in and after February 2014, a group of LIBOR panel banks and its administrator colluded to artificially suppress LIBOR, supposedly to benefit the value of the banks’ positions in certain LIBOR-linked instruments. The district court granted the defendants’ motion to dismiss on the grounds that the plaintiffs had not alleged facts showing a conspiracy among the defendants. After appealing this decision to the Second Circuit, all plaintiffs that had pursued the case in the district court withdrew from the suit. DYJ moved to intervene in the appeal, claiming it could substitute for the proposed class representatives as the ‘assignee of the claims of a prospective member of an uncertified class’.[26] Although a Second Circuit motions panel granted DYJ’s motion to intervene, a different panel ultimately held that ‘DYJ’s status as an intervenor in this appeal does not excuse it from meeting the requirements for standing under Article III’.[27] The Second Circuit explained that dismissal was appropriate because DYJ did not have Article III standing to appeal the lower court’s judgment and was not merely trying to replace the class representative. The Second Circuit explained that although other cases had held that prospective class members may intervene in place of other prospective class members on questions of class certification, that reasoning did not extend to an appeal from a dismissal on the merits prior to class certification.

District court decision of note

DDMB, Inc v Visa, Inc

On 27 September 2021, the Eastern District of New York granted in part and denied in part a motion for class certification by merchants alleging that credit card networks and banks that issue credit cards (and otherwise support credit card transactions) engaged in anticompetitive conduct and imposed supracompetitive and collectively fixed fees on the merchants.[28] The district court held that the plaintiffs satisfied all requirements for class certification under Rule 23(a) of the Federal Rules of Civil Procedure and thus rejected objections that the named plaintiffs could not adequately represent the interests of all class members because class members had sought different types of injunctive relief.

The plaintiffs brought suit against Visa Inc and Mastercard Inc (as well as various issuing banks), alleging violations of the Sherman Act and California’s Cartwright Act. The plaintiffs sought to certify a Rule 23(b)(2) mandatory class (meaning that members of the class would not have the right to opt out) to pursue equitable relief in the form of various changes to the rules and practices promulgated by Visa and Mastercard. Various putative class members objected to certification and sought to protect their right to opt out, primarily arguing that their interests would not be adequately represented by the class representatives.

The district court found that each requirement for class certification under Rule 23(a) was satisfied. With respect to objections that the interests of all class members were not adequately represented by the class representatives, the district court noted that class representatives are incentivized to prove liability when they allege restraints of trade, which are thus adequate even when situated differently from class members. Although the objectors claimed that the class representatives and other plaintiffs sought different types of injunctive relief, the district court found those claims speculative, and concluded that ‘different perspectives as to the appropriate form of injunctive relief or as to litigation strategy do not constitute a conflict sufficient to defeat adequacy of representation’.[29] The district court also rejected the objectors’ argument that a class conflict existed because their claims could be precluded by an adverse judgment against the equitable relief class, and instead found that ‘membership in an equitable relief class does not bar subsequent individual suits for damages’.[30] The district court concluded that the class representatives were not ‘confiscating’ injunctive relief remedies sought by the opt-outs and declined to find that the possible release of opt-out members’ claims gave rise to a conflict.

Because the district court concluded that it was not possible to ascertain from the record which future class members should be included in the class, the district court declined to determine whether the class representatives could adequately represent future class members. But the district court reiterated that future class members were appropriately part of the class since they would suffer injury if the defendants are actually liable for antitrust violations. Finally, the district court declined to permit class members to opt out, on the grounds that the finding that the class was adequately represented was sufficient to protect their rights.

*The authors wish to acknowledge their colleagues Brian Hauser, Benjamin Klebanoff, Osher Gordon, Katherine Wright, Ignacio Saldana, Richard Hauser and Karen Huber for their able assistance with this chapter.


Notes

[1] Fund Liquidation Holdings LLC v. Bank of Am. Corp., 991 F.3d 370 (2d Cir. 2021), cert. denied, 142 S. Ct. 757 (2022) (Fund Liquidation Holdings LLC, 991 F.3d).

[2] Article III of the US Constitution provides that federal courts have jurisdiction over cases and ‘controversies’ arising under federal law.

[3] Fund Liquidation Holdings LLC, 991 F.3d at 386.

[4] Id.

[5] Id. at 387.

[6] China Agritech, Inc. v. Resh, 138 S. Ct. 1800, 1804 (2018).

[7] Fund Liquidation Holdings LLC, 991 F.3d at 391.

[8] 1-800 Contacts, Inc. v. Fed. Trade Comm’n, 1 F.4th 102 (2d Cir. 2021).

[9] Id. at 119.

[10] In re Vitamin C Antitrust Litig., 8 F.4th 136 (2d Cir. 2021).

[11] Id. at 154.

[12] Id. at 155.

[13] Id. at 159.

[14] In re American Express Anti-Steering Rules Antitrust Litig., 19 F.4th 127 (2d Cir. 2021).

[15] United Food & Com. Workers Loc. 1776 & Participating Emps. Health & Welfare Fund v. Takeda Pharm. Co. Ltd., 11 F.4th 118 (2d Cir. 2021).

[16] In re Lipitor Antitrust Litig., 868 F.3d 231, 263 (3d Cir. 2017).

[17] Schwab Short-Term Bond Mkt. Fund v. Lloyds Banking Grp. PLC, 22 F.4th 103 (2d Cir. 2021).

[18] Id. at 117.

[19] Spinner Consulting LLC v. Stone Point Capital LLC, 843 F. App’x 411 (2d Cir. 2021).

[20] Alaska Dep’t of Revenue, Treasury Div. v. Manku, No. 20-1759-CV, 2021 WL 3027170 (2d Cir. July 19, 2021).

[21] Id. at *2.

[22] Id. at *4.

[23] City of Long Beach v. Total Gas & Power N. Am., Inc., No. 20-2020-CV, 2021 WL 5754295 (2d Cir. Dec. 3, 2021).

[24] Id. at *1.

[25] DYJ Holdings, Inc. v. Intercontinental Exch., Inc., No. 20-1492-CV, 2022 WL 433338 (2d Cir. Feb. 14, 2022).

[26] Id. at *2.

[27] Id.

[28] DDMB, Inc. v. Visa, Inc., No. 05-MD-1720 (MKB), 2021 WL 6221326 (E.D.N.Y. Sep. 27, 2021).

[29] Id. at *23.

[30] Id. at *26.

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