Defendants' Motion to Dismiss the Antitrust Tranche Complaint — In re January 2021 Short Squeeze Trading Litigation (Dkt. 408, S.D. Fla.)

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Defendants' Motion to Dismiss the Antitrust Tranche Complaint and Incorporated Memorandum of Law in In re: January 2021 Short Squeeze Trading Litigation, Case 1:21-md-02989-CMA (Case No. 21-MD-2989-ALTONAGA/TORRES, Document 408, 52 pages), in the U.S. District Court for the Southern District of Florida, entered August 30, 2021, relating to All Antitrust Actions. Defendants say the case arises from unprecedented volatility in the week of January 25, 2021, when GME rose 134% on January 27, 2021 alone, and argue that Plaintiffs fail to plead direct or circumstantial evidence of an agreement to conspire. The motion also argues that the allegations do not qualify for per se treatment, that the antitrust theory is precluded by the federal securities laws under Billing, and that the claims should be dismissed with prejudice.

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 21-MD-2989-ALTONAGA/TORRES
In re:
JANUARY 2021 SHORT SQUEEZE
TRADING LITIGATION
_____________________________________/
This Document Relates to:
ALL ANTITRUST ACTIONS
DEFENDANTS’ MOTION TO DISMISS THE ANTITRUST TRANCHE COMPLAINT
AND INCORPORATED MEMORANDUM OF LAW

Case 1:21-md-02989-CMA   Document 408   Entered on FLSD Docket 08/30/2021   Page 1 of 52

TABLE OF CONTENTS
PRELIMINARY STATEMENT .....................................................................................................1
BACKGROUND .............................................................................................................................4
I.
The Industry Participants. ........................................................................................4
A.
Introducing Brokers. ....................................................................................4
B.
Clearing Brokers. .........................................................................................5
C.
Market Makers. ............................................................................................6
D.
Clearing Agencies. .......................................................................................6
II.
The Mechanics of Securities Trading. .....................................................................7
III.
The Unprecedented Market Volatility of January 2021. .........................................8
IV.
The Events of January 28, 2021 and Onward. .......................................................10
ARGUMENT .................................................................................................................................12
I.
PLAINTIFFS FAIL SUFFICIENTLY TO PLEAD THAT
DEFENDANTS AGREED TO CONSPIRE. ........................................................14
A.
Plaintiffs Fail To Allege Any Direct Evidence of an Agreement. .............15
B.
Plaintiffs Fail Adequately To Allege Circumstantial Evidence of an
Agreement. .................................................................................................16
II.
PLAINTIFFS FAIL TO PLEAD THE REMAINING ELEMENTS OF A
SECTION 1 CLAIM. .............................................................................................27
A.
The Court Should Address the Question of Per Se vs. Rule of
Reason at the Motion To Dismiss Stage. ...................................................28
B.
Plaintiffs’ Allegations Do Not Qualify for Per Se Treatment under
the Antitrust Laws. .....................................................................................28
C.
Plaintiffs Do Not Even Attempt To Plead a Section 1 Violation
Based on the Rule of Reason. ....................................................................30
III.
PLAINTIFFS’ ANTITRUST THEORY IS PRECLUDED BY THE
FEDERAL SECURITIES LAWS..........................................................................33
A.
Plaintiffs’ Antitrust Claims Are Precluded under Billing Because
the Conduct at Issue Is Regulated by the Federal Securities Laws. ...........33
B.
There Is No Applicable Savings Clause. ...................................................38
IV.
INDEPENDENT REASONS EXIST TO DISMISS ALL CLAIMS
AGAINST PEAK6, E*TRADE HOLDINGS AND ROBINHOOD
MARKETS. ...........................................................................................................38
V.
PLAINTIFFS’ CLAIMS SHOULD BE DISMISSED WITH PREJUDICE. ........39
CONCLUSION ..............................................................................................................................40

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ii
TABLE OF AUTHORITIES

Page(s)
Cases
Am. Dental Ass’n v. Cigna Corp.,
605 F.3d 1283 (11th Cir. 2010) ...............................................................................................17
Anderson News, L.L.C. v. Am. Media, Inc.,
899 F.3d 87 (2d Cir. 2018).......................................................................................................20
Ashcroft v. Iqbal,
556 U.S. 662 (2009) .................................................................................................................16
Austin v. Blue Cross & Blue Shield of Ala.,
903 F.2d 1385 (11th Cir. 1990) ...............................................................................................32
Auto. Alignment & Body Serv. v. State Farm Mut. Auto. Ins. Co.,
953 F.3d 707 (11th Cir. 2020) .................................................................................................16
Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007) ......................................................................................................... passim
Broad. Music, Inc. v. Columbia Broad. Sys., Inc.,
441 U.S. 1 (1979) .........................................................................................................28, 29, 30
Brown Shoe Co. v. United States,
370 U.S. 294 (1962) .................................................................................................................31
Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc.,
429 U.S. 477 (1977) .................................................................................................................32
Burtch v. Milberg Factors, Inc.,
662 F.3d 212 (3d Cir. 2011).....................................................................................................15
Bus. Elecs. Corp. v. Sharp Elecs. Corp.,
485 U.S. 717 (1988) ...........................................................................................................14, 28
Cavero v. Law Offices of Erskine & Fleisher,
No. 12-21196-CIV, 2012 WL 13134213 (S.D. Fla. Aug. 28, 2012) .......................................11
Cement Manufacturers Protective Association v. United States,
268 U.S. 588 (1925) .................................................................................................................24
Chapman v. N.Y. State Div. for Youth,
546 F.3d 230 (2d Cir. 2008).....................................................................................................31
Consultants & Designers, Inc. v. Butler Serv. Grp., Inc.,
720 F.2d 1553 (11th Cir. 1983) ...............................................................................................28
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iii
Copperweld Corp. v. Independence Tube Corp.,
467 U.S. 752 (1984) .................................................................................................................14
Credit Suisse Sec. (USA) LLC v. Billing,
551 U.S. 264 (2007) ......................................................................................................... passim
D.A.M. v. Barr,
474 F. Supp. 3d 45 (D.D.C. 2020) ...........................................................................................12
Eastman Kodak Co. v. Image Technical Services, Inc.,
504 U.S. 451 (1992) .................................................................................................................32
Elec. Trading Grp., LLC v. Banc of Am. Sec. LLC,
588 F.3d 128 (2d Cir. 2009)...............................................................................................34, 37
In re Farm-Raised Salmon & Salmon Prods. Antitrust Litig.,
No. 19-21551-CIV, 2021 WL 1109128 (S.D. Fla. Mar. 23, 2021) ................................. passim
In re Fla. Cement & Concrete Antitrust Litig.,
746 F. Supp. 2d 1291 (S.D. Fla. 2010) ..................................................................16, 25, 26, 38
Friedman v. Salomon/Smith Barney, Inc.,
313 F.3d 796 (2d Cir. 2002).........................................................................................35, 36, 37
FTC v. Ind. Fed’n of Dentists,
476 U.S. 447 (1986) .................................................................................................................30
Gordon v. New York Stock Exchange, Inc.,
422 U.S. 659 (1975) .................................................................................................................37
Graphic Prods. Distribs., Inc. v. Itek Corp.,
717 F.2d 1560 (11th Cir. 1983) ...............................................................................................31
Hoover v. Blue Cross & Blue Shield of Ala.,
855 F.2d 1538 (11th Cir. 1988) ...............................................................................................40
In re Ins. Brokerage Antitrust Litig.,
618 F.3d 300 (3rd Cir. 2010) ...................................................................................................15
Interstate Cir. v. United States,
306 U.S. 208 (1939) .................................................................................................................21
Jacobs v. Tempur-Pedic Int’l, Inc.,
626 F.3d 1327 (11th Cir. 2010) ....................................................................................... passim
Kalmanovitz v. G. Heileman Brewing Co.,
769 F.2d 152 (3d Cir. 1985).....................................................................................................31
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La Grasta v. First Union Sec., Inc.,
358 F.3d 840 (11th Cir. 2004) ...................................................................................................8
Levine v. Cent. Fla. Med. Affiliates, Inc.,
72 F.3d 1538 (11th Cir. 1996) .....................................................................................13, 27, 28
In re Loc. TV Advert. Antitrust Litig.,
No. 18-C-6785, 2020 WL 6557665 (N.D. Ill. Nov. 6, 2020) ..................................................15
Mayor & City Council of Balt. v. Citigroup, Inc.,
709 F.3d 129 (2d Cir. 2013).........................................................................................15, 18, 22
Mayor & City Council of Balt. v. Citigroup, Inc.,
Nos. 08-cv-7746 (BSJ), 08-cv-7747 (BSJ), 2010 WL 430771 (S.D.N.Y. Jan.
26, 2010), aff’d on other grounds, 709 F.3d 129 (2d Cir. 2013) .............................................36
In re Mexican Gov’t Bonds Antitrust Litig.,
412 F. Supp. 3d 380 (S.D.N.Y. 2019) ......................................................................................25
Monsanto Co. v. Spray-Rite Serv. Corp.,
465 U.S. 752 (1984) .....................................................................................................13, 14, 18
In re Musical Instruments & Equip. Antitrust Litig.,
798 F.3d 1186 (9th Cir. 2015) ...........................................................................................20, 22
Nat’l Bancard Corp. (NaBanco) v. VISA U.S.A., Inc.,
779 F.2d 592 (11th Cir. 1986) .................................................................................................28
Nat’l Soc’y of Pro. Eng’rs v. United States,
435 U.S. 679 (1978) ...........................................................................................................27, 28
Nw. Wholesale Stationers, Inc. v. Pac. Stationery & Printing Co.,
472 U.S. 284 (1985) .................................................................................................................30
Ohio v. Am. Express Co.,
138 S. Ct. 2274 (2018) .................................................................................................28, 30, 32
Pressner v. Target Corp.,
No. 00-cv-6636, 2001 WL 293993 (N.D. Ill. Mar. 27, 2001) .................................................40
Procaps S.A. v. Pantheon, Inc.,
845 F.3d 1072 (11th Cir. 2016) .........................................................................................27, 28
In re Publ’n Paper Antitrust Litig.,
690 F.3d 51 (2d Cir. 2012).......................................................................................................29
Quality Auto Painting Ctr. of Roselle, Inc. v. State Farm Indem. Co.,
917 F.3d 1249 (11th Cir. 2019) (en banc) ....................................................................... passim
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Queen City Pizza, Inc. v. Domino’s Pizza, Inc.,
124 F.3d 430 (3d Cir. 1997).....................................................................................................31
Re-Alco Indus., Inc. v. Nat’l Ctr. for Health Educ., Inc.,
812 F. Supp. 387 (S.D.N.Y. 1993)...........................................................................................30
In re Se. Milk Antitrust Litig.,
739 F.3d 262 (6th Cir. 2014) ...................................................................................................30
Sinaltrainal v. Coca-Cola Co.,
578 F.3d 1252 (11th Cir. 2009) (abrogated on other grounds) ................................................13
St. Paul Fire & Marine Ins. Co. v. Barry,
438 U.S. 531 (1978) ...........................................................................................................29, 30
Starr v. Sony BMG Music Ent.,
592 F.3d 314 (2d Cir. 2010).....................................................................................................22
State Oil Co. v. Khan,
522 U.S. 3 (1997) .....................................................................................................................29
In re Stock Exchs. Options Trading Antitrust Litig.,
317 F.3d 134 (2d Cir. 2003).....................................................................................................37
Texaco Inc. v. Dagher,
547 U.S. 1 (2006) .....................................................................................................................29
Todorov v. DCH Healthcare Auth.,
921 F.2d 1438 (11th Cir. 1991) ...............................................................................................24
TV Commc’ns Network, Inc. v. Turner Network Television, Inc.,
964 F.2d 1022 (10th Cir. 1992) ...............................................................................................31
United Am. Corp. v. Bitmain, Inc.,
No. 18-CV-25106, 2021 WL 1807782 (S.D. Fla. Mar. 31, 2021) ...........................................20
United States v. Apple, Inc.,
791 F.3d 290 (2d Cir. 2015).....................................................................................................21
United States v. Socony-Vacuum Oil Co.,
310 U.S. 150 (1940) .................................................................................................................29
Universal Express, Inc. v. U.S. S.E.C.,
177 F. App’x 52 (11th Cir. 2006) ............................................................................................12
Williamson Oil Co. v. Philip Morris USA,
346 F.3d 1287 (11th Cir. 2003) ...............................................................................................22
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Statutes & Rules
17 C.F.R. § 240.10b-5 ....................................................................................................................36
17 C.F.R. § 240.10b-10 ....................................................................................................................7
17 C.F.R. §§ 240.15a-1 to 240.15c6-1 ...........................................................................................37
17 C.F.R. §§ 240.15c3-1 to 240.15c3-5 .........................................................................................35
17 C.F.R. §§ 240.17Ab2-1 to -2 ....................................................................................................37
17 C.F.R. §§ 240.17Ad-1 to -24 ....................................................................................................37
17 C.F.R. § 240.17Ad-22 ...............................................................................................................36
17 C.F.R. §§ 240.17h-1T to 240.17h-2T .......................................................................................36
17 C.F.R. §§ 242.100 to 242.105 .............................................................................................36, 37
15 U.S.C. § 1 .......................................................................................................................... passim
15 U.S.C. § 78a, et seq ........................................................................................................... passim
Dodd–Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-
203, 124 Stat. 1376 (2010) .......................................................................................................38
Fed. R. Civ. P. 12 .......................................................................................................................1, 30
Fed. R. Civ. P. 15 .....................................................................................................................39, 40
Fed. R. Evid. 201 ...........................................................................................................................12
Other Authorities
6 C. Wright & A. Miller, Fed. Prac. & Proc. Civ. § 1485 (1971)..................................................40
Maggie Fitzgerald, Robinhood restricts trading in GameStop, other names
involved in frenzy, CNBC (Jan. 28, 2021, 9:19 AM EST), available at
https://www.cnbc.com/2021/01/28/ robinhood-interactive-brokers-restrict-
trading-in-gamestop-s.html ......................................................................................................11
Nasdaq, Market Activity, https://www.nasdaq.com/market-activity (last visited
Aug. 24, 2021) .....................................................................................................................8, 10
SEC Division of Enforcement, 2018 Annual Report (Nov. 2, 2018) ............................................36
SEC Division of Enforcement, 2019 Annual Report (Nov. 6, 2019) ............................................36
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SEC Division of Enforcement, 2020 Annual Report (Nov. 2, 2020) ............................................36
SEC, Thinking About Investing in the Latest Hot Stock? (Jan. 30, 2021),
https://www.sec.gov/oiea/investor-alerts-and-bulletins/risks-short-term-
trading-based-social-media-investor-alert .........................................................................12, 37
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Defendants respectfully submit this memorandum of law in support of their
Motion to Dismiss the “Corrected Consolidated Class Action Complaint” (the “CCAC”) filed in
the Antitrust Tranche pursuant to Federal Rule of Civil Procedure 12(b)(6).1
PRELIMINARY STATEMENT
This putative class action arises from historically unprecedented volatility in the
securities markets during the week of January 25, 2021.  Spurred by social media and online
forums, retail investors sent stock prices and trading volumes for certain stocks soaring, driving
the price of GameStop, Inc. (“GME”) up 134% on January 27, 2021 alone.  Other symbols
increased between 200% and 300% that same day.  A frenzied interest in GME, AMC
Entertainment Holdings, Inc. (“AMC”) and other “meme” stocks, which Plaintiffs label the
“Relevant Securities,” pushed trading volatility to record levels.  That unprecedented market
volatility impacted brokerages in different ways and led market participants to take different
actions in an effort to address the impact of the volatility.  Clearing agencies (not named in this
suit) imposed extraordinary capital requirements on brokerages, including defendants in this
action, consistent with SEC regulations and designed to mitigate risk in volatile markets.  These
sudden requests effectively required those brokerages to post massive amounts of capital
(including more than $3 billion for one defendant) with only a few hours’ notice.
Each brokerage firm responded to these market developments differently.  For
instance, Plaintiffs allege that only one of the Introducing Broker Defendants restricted all of the
Relevant Securities.  The remaining Introducing Broker Defendants adopted restrictions that
varied in scope, type and duration.  Other brokers—not alleged to be part of the purported
conspiracy—adopted restrictions that also differed from broker to broker in scope, type and
duration.  One of the defendants in this case, Defendant Citadel Securities LLC, continued to

1 Defendants have moved against the unredacted version of the CCAC that Plaintiffs served on
August 23, 2021, which is a “corrected” version of what they served on July 27, 2021.  Plaintiffs
only gave Defendants several hours’ notice concerning what Protected Material they intended to
include in the Master Complaints, without any meaningful opportunity for Defendants to meet
and confer or to substantiate the confidentiality designations.  After the Master Complaints were
filed, Defendants sought to meet and confer multiple times concerning the filing of lesser-
redacted versions of the Consolidated Complaint (ECF No. 358) and the CCAC—specifically, to
redact only personally-identifying information—but Plaintiffs declined to do so.  Defendants
thus reserve the right to seek a protective order concerning the remaining redactions.
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facilitate the trading activity from its retail brokerage clients during the relevant time period
without interruption or restriction every minute of January 28, 2021.
After brokers imposed different trading restrictions on January 28, counsel for the
Antitrust Plaintiffs quickly filed a broad lawsuit against dozens of defendants and then promptly
sought MDL coordination.  The antitrust claim is predicated on the speculative contention that
the “meme” stock prices would have been even higher but for the alleged conduct, combined
with the absurd contention that every member of the putative class was harmed because they
would all somehow have timed the market perfectly absent the restrictions and sold their shares
of the “meme” stocks at a profit.  But the claim fails from its inception and in fact has nothing to
do with competition at all.
Plaintiffs filed a new consolidated complaint in this MDL still alleging a broad
conspiracy at different levels of the securities markets, but dropping more than 19 defendants
who were named in the original complaints, effectively conceding the lack of viability of any
conspiracy claim against them.  Plaintiffs have since “corrected” that complaint to fix critical
allegations concerning alleged timing and relationships.  They have also dropped from the case
an additional eight brokers who they concede implemented trading restrictions at the same time
as the remaining broker defendants.  Lacking evidence of an actual agreement—and even
admitting that they do not know what Citadel Securities’ positions were in the Relevant
Securities—Plaintiffs continue to insist that disparate trading restrictions, as implemented by
Defendants, evidence an unlawful conspiracy.  It is a conspiracy born of speculation and
contradicted by logic.  The allegations do not support, let alone reveal, an unlawful conspiracy or
rebut the obvious—and accurate—explanation for the restrictions about which Plaintiffs
complain.
In Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 n.4, 557 (2007), the United
States Supreme Court explained that a court assessing a Section 1 conspiracy claim under the
Sherman Act must ask whether the factual allegations suffice to create a plausible inference that
defendants’ conduct makes sense only as part of an unlawful conspiracy, or do those facts
instead provide a plausible non-conspiratorial explanation of “independent responses to common
stimuli . . . unaided by an advance understanding among the parties?”  The facts described above
are pleaded in the CCAC, and those facts plausibly establish that there was a “common market
stimulus” to which brokers—both those named as defendants and those who are not—each
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reacted in their own independent financial interests, unaided by any advance agreement.  That
was the unprecedented market volatility for the Relevant Securities, which in turn led to clearing
agency demands some brokers could not meet without restrictions.  Plaintiffs’ Section 1 claim
must, therefore, fail.
While Plaintiffs attempt to brush aside this plausible (and accurate) explanation
for what happened as just “cover,” their conspiracy theory rings hollow.  According to Plaintiffs,
the real reason the Introducing Brokers introduced the disparate restrictions was because Citadel
Securities—alleged to have a commercial relationship with some, but not all, of the defendants—
sought to depress the prices of the Relevant Securities to protect Citadel Securities’ alleged short
position.  Despite access to tens of thousands of pages of document productions to government
agencies investigating the restrictions, Plaintiffs offer zero direct evidence that:  (1) Citadel
Securities actually held a short position in the Relevant Securities; or (2) that any unlawful
agreement existed between any two Defendants, never mind among all Defendants.  Plaintiffs
fail even to allege that most of the Defendants ever spoke to a single other Defendant during the
relevant time period.
The alleged conspiracy is also implausible.  As Plaintiffs acknowledge, Citadel
Securities’ business is predicated on facilitating trading activity.  There is no allegation—nor
could there be—that Citadel Securities ever refused to facilitate trades in any of the Relevant
Securities.  Moreover, even if Citadel Securities did stand to benefit from a lower price in the
Relevant Securities, none of the brokers did; they are not alleged to have bought or sold these
securities for their own account.  To the contrary, restricting trading causes the brokers to lose
revenue, and they are agnostic to the price of the Relevant Securities (no different from the
thousands of other publicly traded securities).  And they are not alleged to have received any
financial benefit from Citadel Securities in return for joining the alleged conspiracy.
The circumstances alleged here are a far cry from an actual antitrust conspiracy,
where the challenged conduct is unprofitable for any individual firm to engage in alone but
becomes profitable when pursued as a group.  Instead, the restrictions cost each broker revenue
because they reduced trading volume, regardless of how many other brokers also limited trading,
and any one broker’s ability to implement restrictions did not depend on others doing the same.
There is no plausible explanation for why the various broker defendants would have sacrificed
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their own financial interests to help Citadel Securities and protect it against alleged short position
for which Plaintiffs concede they lack any actual evidence.  (See Section I.)
Plaintiffs’ claim also suffers from two other independent fatal defects.  First, even
if Plaintiffs had plausibly pleaded an agreement among the Defendants—they have not—they
still have not pleaded any of the remaining elements of their Section 1 claim.  The novel
conspiracy they allege between actors at different levels of the financial services industry does
not fit within the narrow category of restraints for which extensive judicial analysis has
confirmed per se condemnation applies.  The rule of reason thus applies, and Plaintiffs must
adequately allege market definition, market power and anticompetitive effects.  They allege none
of those.  (See Section II.)  Second, this case is no more than a “securities complaint in antitrust
clothing,” Credit Suisse Sec. (USA) LLC v. Billing, 551 U.S. 264, 284 (2007), and therefore is
implicitly precluded by the federal securities laws.  Congress and the expert regulatory agencies
have created a complex system of statutes and regulations that govern the functioning of the
securities markets, including the conduct at issue here.  Thus, even if Plaintiffs had adequately
pleaded an agreement—they have not—and had also pleaded all the other elements of a
Section 1 claim—again, they have not—they still could not pursue antitrust claims as a matter of
law.  (See Section III.)  This case must be dismissed with prejudice.  (See Sections IV and V.)
BACKGROUND
I.
THE INDUSTRY PARTICIPANTS.
The allegations at issue here involve a broad number of participants that operate
at different levels of the securities industry, many of which are not named as Defendants.  The
Defendants fall into three categories:  introducing brokers, clearing brokers and market makers.
(CCAC, ECF No. 388, ¶¶ 42-75.)  Also critical to the allegations are centralized, regulated
bodies called clearing agencies, which guarantee completion of trades and work with the other
three categories of industry participants to ensure the smooth functioning of the securities
markets.  (CCAC ¶¶ 96-104.)  There are no allegations that any of these different categories of
industry participants compete with one another.
A.
Introducing Brokers.
“Introducing Brokers” are customer-facing service providers through which retail
investors can place trade orders.  (CCAC ¶¶ 42-63, 126.)  Through an Introducing Broker,
customers can place trade orders on the broker’s website or mobile application.  Once a trade is
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placed, the Introducing Broker routes the order to a clearing broker, which, as described below,
processes the customer trade orders.
Plaintiffs have now dismissed all defendants they defined as Introducing Brokers.
The only retail customer-facing Defendants that remain in this Action—Robinhood, E*TRADE
Securities LLC (“E*TRADE”) and Interactive Brokers LLC (“Interactive Brokers”)—are what
Plaintiffs call “Self-Clearing Brokers,” which they allege consist “of an introducing broker . . .
[that] also acts as its own clearing firm in that it executes and settles orders and maintains
custody of securities.”  (Id. ¶¶ 113-117.)  This is incorrect as to Robinhood, which maintains a
separate introducing entity, Robinhood Financial LLC (“Robinhood Financial”), and clearing
entity, Robinhood Securities, LLC (“Robinhood Securities”).  For the purposes of this motion,
Defendants refer to the so-called Self-Clearing Brokers as “Introducing Brokers.”
Plaintiffs do not allege that any of the Introducing Broker Defendants engages in
securities trades for its own account, i.e., proprietary trading in stocks or options to generate
returns for its business.  The Introducing Brokers are alleged only to provide retail investors with
access to the financial markets.  (Id. ¶¶ 126, 149.)  There are numerous other Introducing
Brokers in the securities industry that are not alleged to be a part of the purported conspiracy
(notwithstanding that certain of these brokers are alleged to have imposed trading restrictions),
including such major firms as Fidelity, Vanguard, Charles Schwab, TD Ameritrade and, now, the
eight Introducing Brokers that were initially named in the CCAC but were subsequently
dismissed.  (Id. ¶ 115; ECF No. 380, 396-398, 400-404.)
Plaintiffs do not allege that Introducing Brokers (including the so-called Self-
Clearing Brokers) compete with Clearing Brokers or Market Makers.  (Id. ¶¶ 105-124.)
B.
Clearing Brokers.
Clearing Brokers receive accepted customer trade orders from an Introducing
Broker, and then, for these accepted trades, are responsible for processing and, in some cases,
executing the trade order on the customer’s behalf.  (CCAC ¶¶ 66-75, 105.)  They are also
responsible for maintaining custody of the securities and assets necessary to clear customer trade
orders.  (Id.)  As noted above, clearing entities may be either affiliated with an Introducing
Broker, or independent companies that contract with unaffiliated Introducing Brokers.  Plaintiffs
categorize three entities as Clearing Brokers:  Apex Clearing Corporation (“Apex”) and
Electronic Transaction Clearing, Inc. (“ETC”), which provide clearing services for various
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unaffiliated Introducing Brokers, and PEAK6 Investments LLC (“PEAK6”), a holding company
that is the majority owner for both Apex and PEAK6.  (Id. ¶¶ 73, 108.)  As a result, all three
alleged Clearing Broker Defendants are part of a single corporate family.  (Id. ¶ 74.)  Apex
performs clearing services for a number of Introducing Brokers that were originally named as
defendants, but have since been dismissed from the case.  (Id. ¶ 109.)  ETC performs clearing
services for Alpaca Securities LLC, which has also been dismissed.  (Id.)2
As with the Introducing Brokers, Plaintiffs do not allege that any of the Clearing
Brokers engages in proprietary trading—buying and selling stocks or options to generate returns
for its business.  Plaintiffs also do not allege that the Clearing Brokers compete with Introducing
Brokers (including the Self-Clearing Brokers) or Market Makers.  (Id. ¶¶ 105-124.)
C.
Market Makers.
A “Market Maker” is an entity that stands ready to fill orders for a particular
security at publicly quoted prices, and upon receiving an order from a broker, fills that order with
available inventory or by sourcing liquidity from an exchange or other market venue.  (CCAC
¶¶ 118, 124.)  Citadel Securities LLC (“Citadel Securities”) is one of many Market Makers.
Plaintiffs do not allege Citadel Securities possesses market power among all Market Makers.
(See id.)  Plaintiffs also do not allege that Citadel Securities was the only Market Maker
performing such services for any of the defendants that cleared securities transactions during the
period of volatility.  (See id.; id. ¶ 135.)  And while Plaintiffs refer throughout the CCAC to
“Market Maker Defendants,” they, in fact, have sued only a single Market Maker.  Plaintiffs do
not allege that Citadel Securities, or any other Market Maker, competes with Introducing Brokers
or Clearing Brokers.  (See id.)
D.
Clearing Agencies.
Clearing agencies are centralized entities that validate and finalize securities
transactions (i.e., “settle” transactions), and guarantee completion of trades even if a party to the
transaction defaults.  (CCAC ¶¶ 98, 101.)  The main clearing agency for the U.S. equities market
is the NSCC, which is owned and operated by the DTCC.  (Id. ¶¶ 96, 98.)  Both the DTCC and
the NSCC are regulated by the Securities and Exchange Commission (“SEC”).  (Id. ¶¶ 96, 98.)

2 As noted above, Plaintiffs incorrectly lump Defendant Robinhood Securities into the category
of “Self-Clearing Brokers.”  Robinhood Securities is in fact a Clearing Broker that currently
clears accounts exclusively for Robinhood Financial.
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II.
THE MECHANICS OF SECURITIES TRADING.
Retail investors are “individual investors who make investments on their own
behalf.”  (CCAC ¶ 2.)  They can make such investments by opening a brokerage account with an
Introducing Broker.  (Id. ¶¶ 2, 111-112.)  Some Introducing Brokers offer electronic trading
platforms that enable retail investors to place trade orders through a website or mobile
application.  (Id.)  After a retail investor places a trade order with an Introducing Broker, and the
Introducing Broker accepts that order, the Introducing Broker either sends the order to a Clearing
Broker for clearing services (as is the case for Robinhood Financial, which sends trade orders to
Robinhood Securities), or, if it is an Introducing Broker that clears trades as well, it executes the
order itself (as is the case for E*TRADE and Interactive Brokers).  (Id. ¶¶ 105, 111.)  The entity
clearing the trade (whether it is a Clearing Broker, or an Introducing Broker performing its own
clearing services) executes the trade order through an exchange or other trading venue, or sends
the order to a Market Maker, which fills the buy or sell order through its inventory or by
sourcing liquidity from the market.  (Id. ¶¶ 118, 124.)
Market Makers, including Citadel Securities among many others (see id. ¶ 423),
may pay brokers a fee known as “payment for order flow” (“PFOF”) to route orders to the
Market Makers’ systems (id. ¶¶ 134-135).  As alleged in the CCAC, the net amount of PFOF
revenue that a broker generates is based in part on the volume of order flow it routes to different
Market Makers.  (Id. ¶¶ 425-426.)  This practice is long-standing and accepted by the SEC (see,
e.g., 17 C.F.R. § 240.10b-10; CCAC ¶ 425), and enables some brokers to offer retail investors
the ability to trade without paying commissions.  (CCAC ¶ 3.)  Market Makers may generate
revenue by capturing a portion of the “spread” between the bid and ask prices for securities,
which can often be as little as one cent per order.  (Id. ¶ 118.)  Filled orders are then sent to a
clearing agency, such as the NSCC.  (Id. ¶¶ 96-98, 101, 129.)  The NSCC clears cash
transactions by netting securities deliveries and payments among its members and guaranteeing
completion of trades even if a party defaults.  (Id. ¶ 98.)  It takes two days for the clearing
agency to transfer the stock to the buyer and funds to the seller.  (Id. ¶ 101.)
The two-day period between execution and settlement creates a risk that a party to
the transaction will be unable to meet its obligations.  (Id. ¶¶ 99-103.)  A number of protections
are in place to reduce this risk.  (Id.)  One protection critical to this case is that clearing agencies
require Introducing and Clearing Brokers that execute customer trade orders to pay a deposit to
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the clearing agency until the trades are settled.  (Id. ¶¶ 103, 470.)  The deposit amount is based
largely on risk, which the clearing agencies calculate by looking to, among other things, a firm’s
customer holdings and open order volume and using a volatility multiplier.  (Id. ¶¶ 470-471.)
The purpose of these deposit requirements is to protect all market participants—from retail
investors to brokers—from potential defaults during the settlement period.  (Id. ¶ 103.)  To clear
and settle customer transactions, brokers engaged in clearing services must satisfy the NSCC
deposit requirements, which can change throughout the course of a single day.  (Id. ¶¶ 103, 470.)
If an Introducing or Clearing Broker that executes trades fails to timely satisfy its deposit
requirements, it risks being “shut down” by the NSCC.  (Id. ¶¶ 103, 240-241.)
III.
THE UNPRECEDENTED MARKET VOLATILITY OF JANUARY 2021.
January 2021 was marked by a series of unprecedented events.  (CCAC ¶¶ 188-
190, 228-229.)  Investors—connected through social media platforms and online forums—
banded together to cause “short squeezes” by trading in GME, AMC and other stocks they
perceived to be the target of short selling activity by institutional investors (the “Relevant
Securities”).3  (Id. ¶¶ 141, 142, 185.)  Their activity resulted in “soar[ing]” prices, and in the
words of the SEC, “extreme price volatility” in the Relevant Securities.  (Id. ¶¶ 190, 337.)  For
example, on January 27, GME’s price closed at $347.51 per share, a 707.6% increase from just
five trading days earlier.  (Id. ¶ 190.)  The trading price increase for GME is reflected in the
graph below.4

3 The “Relevant Securities” are:  GME, AMC, Bed Bath & Beyond Inc. (“BBBY”), Blackberry
Ltd. (“BB”), Express, Inc. (“EXPR”), Koss Corporation (“KOSS”), Nokia Corporation
(“NOK”), Tootsie Roll Industries, Inc. (“TR”) and Trivago N.V. (“TRVG”).  (CCAC ¶ 81.)
4 See Nasdaq, Market Activity, https://www.nasdaq.com/market-activity (last visited Aug. 24,
2021). The Court may take judicial notice of stock information related to the securities at issue
here and in the ensuing charts.  See La Grasta v. First Union Sec., Inc., 358 F.3d 840, 842 (11th
Cir. 2004).
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The “skyrocket[ing]” and “epic price surge[s]” in the Relevant Securities were
unrelated to factors that the securities industry participants traditionally expect would affect
stock prices (e.g., earnings reports or public announcements).  (Id. ¶¶ 189, 190.)  In the span of
just five trading days (from January 21 to January 27, 2021), the total daily trading volume for
the Relevant Securities increased from 230 million to 3.3 billion shares.  By the end of that three-
day period, the SEC released a statement warning of “on-going market volatility in the options
and equities markets.”  (Id. ¶ 200.)

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As the unprecedented volatility and volume unfolded, different brokers took
independent, proactive measures to mitigate their exposure to the market risks.5 For example, by
January 27, 2021, Robinhood Securities increased customer margin requirements to 100% for
GME and AMC—in other words, a customer was required to have sufficient funds to pay for the
shares in full.  (Id. ¶ 199.)  On January 27, 2021, TD Ameritrade (which is not named as a
defendant or alleged conspirator) announced that it “put in place several restrictions on some
transactions in $GME, $AMC and other securities,” including increasing margin requirements to
trade in those and other securities.  (Id. ¶ 198.)  The same day, Charles Schwab (also not a
defendant or alleged conspirator) similarly announced that it would put in place restrictions on
three of the Relevant Securities:  GME, AMC and EXPR.  (Id. ¶ 199.)  Meanwhile, Plaintiffs do
not allege that Citadel Securities ever failed to continue filling orders in its role as a Market
Maker with respect to any security or broker throughout this volatile period.
IV.
THE EVENTS OF JANUARY 28, 2021 AND ONWARD.
The historic market volume and volatility in the Relevant Securities came to a
head on January 28.  (CCAC ¶¶ 256-266.)  Because brokers had differing risk exposures, they
responded to the trading volume and volatility in different ways:  some brokers imposed no
restrictions, while others imposed restrictions for different types of transactions, for different
durations and involving different securities.  (See generally id. ¶¶ 247-252, 269-270.)
On the morning of January 28, the NSCC also issued significantly increased
collateral calls for different brokerages.  For example, the NSCC increased Robinhood
Securities’ deposit requirements to over $3 billion.  (Id. ¶ 231.)  The massive capital call was a
tenfold increase over what it had been just days before.  (Id. ¶ 338.)  Because deposit
requirements are based on market volatility, the massive capital call was the direct result of the
substantial increases in trading volume and price of the Relevant Securities in previous days—in
particular, on January 27.  (Id. ¶¶ 102-103, 201-209.)  The capital call of more than $3 billion
was also driven in part by the volatility multiplier that the NSCC assigns to securities that it
perceives as having more risk.  (See generally id. ¶ 470.)
Robinhood Securities received the capital call of more than $3 billion at 5:11 AM
EST.  (Id. ¶ 231.)  After several hours of internal deliberation, and in light of the “major liquidity

5 See Nasdaq, Market Activity, https://www.nasdaq.com/market-activity (last visited Aug. 24,
2021).
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issue[s]” created by the capital call, it made the difficult decision to impose temporary trading
restrictions on the limited number of securities driving the volatility.  (Id. ¶¶ 232-233.)
Robinhood Securities put in place a “position closing only” (“PCO”) restriction on stock trades
and options contracts for AMC, BB, BBBY, EXPR, GME, KOSS, NOK, TR and TRVG
(Plaintiffs’ “Relevant Securities”) (id. ¶ 252), as well as for American Airlines Group, Inc.
(“AAL”), Castor Maritime Inc. (“CTRM”), Naked Brand Group, Ltd. (“NAKD”) and Sundial
Growers, Inc. (“SNDL”),6 a measure that allowed (but did not require) Robinhood customers to
exit their positions in those symbols if they wished, but restricted purchases.  (Id. ¶¶ 233-238.)
Following the imposition of the PCO restrictions, the NSCC revised Robinhood Securities’
deposit requirements.  (Id. ¶ 340.)  Robinhood Securities then provided the cash to satisfy its
revised deposit requirements a little after 9:00 AM EST, enabling Robinhood’s customers to
continue trading in all other securities.  (Id. ¶ 340.)  Robinhood Securities lifted the PCO
restrictions by January 29, 2021 (id. ¶ 324), and removed all trading limitations by market open
on February 5, 2021 (id. ¶ 340).
Apex also faced an apparent significant (tenfold) increase in its NSCC collateral
requirements, which led it on January 28, 2021 to place temporary restrictions on clearing orders
for only three stocks (as compared to the 13 that Robinhood restricted):  AMC, GME and KOSS.
(See id. ¶¶ 274, 276, 341, 470-480.)  Apex communicated this limitation to its Introducing
Broker customers, which in turn notified their customers.  (Id. ¶¶ 274-276.)  Apex resumed
clearing transactions in AMC, GME and KOSS later that day.  (Id. ¶ 327.)  Plaintiffs originally
alleged that Apex’s Introducing Broker customers were members of the purported conspiracy
(ECF No. 358, ¶¶ 42-51), but have since dismissed them all from the case.
The remaining Broker Defendants also imposed a variety of different restrictions,
each taking its own approach given the unique issues and considerations that each faced during
the period of unprecedented trading volume and volatility.  Indeed, none of the defendant brokers

6 See Maggie Fitzgerald, Robinhood restricts trading in GameStop, other names involved in
frenzy, CNBC (Jan. 28, 2021, 9:19 AM EST), available at https://www.cnbc.com/2021/01/28/
robinhood-interactive-brokers-restrict-trading-in-gamestop-s.html.  Plaintiffs allege that
Robinhood’s limited restrictions included, “inter alia,” certain “Relevant Securities.”  (CCAC
¶ 252.)  For completeness, Defendants identify the full set of restricted equities as reported by the
media, which are “generally known” and “whose accuracy cannot reasonably be questioned.”
Cavero v. Law Offices of Erskine & Fleisher, No. 12-21196-CIV, 2012 WL 13134213, at *2
(S.D. Fla. Aug. 28, 2012).
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imposed identical trading restrictions—in terms of the type of restriction and the symbols
impacted.  For example, E*TRADE placed PCO restrictions on stock trading for only two
symbols:  GME and AMC.  (Id. ¶ 250.)  Plaintiffs allege that Interactive Brokers took a different
approach, and imposed PCO restrictions on options trading only (not stock trading) for only five
symbols:  GME, AMC, BB, EXPR and KOSS.  (Id. ¶ 249.)  Plaintiffs do not allege that all of the
Defendants met or otherwise coordinated these restrictions.7
By January 30, many of the brokers had lifted their restrictions.  (Id. ¶¶ 325-326.)
That day, the SEC released an investor alert and bulletin warning about the risks of short-term
trading based on social media, and acknowledged that “broker-dealers may reserve the ability to
reject or limit customer transactions” for “legal, compliance, or risk management reasons,” and
that the ability to do so “is typically discussed in the customer account agreement.”8
ARGUMENT
Pleading a violation of Section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1,
requires a “(1) conspirac[y] that (2) unreasonably (3) restrain[s] interstate or foreign trade,”
Quality Auto Painting Ctr. of Roselle, Inc. v. State Farm Indem. Co., 917 F.3d 1249, 1260 (11th
Cir. 2019) (en banc).  In considering a motion to dismiss “a case brought under § 1 of the
Sherman Act, [courts] must determine whether the complaint, in asserting a conspiracy or
agreement in restraint of trade, contains ‘allegations plausibly suggesting (not merely consistent

7 While this fact is not necessary to this Motion, Congress heard testimony revealing that Citadel
Securities “had no role in Robinhood’s decision to limit trading in GameStop or any other of the
‘meme’ stocks.”  Virtual Hearing – Game Stopped?  Who Wins and Loses When Short Sellers,
Social Media, and Retail Investors Collide, 117th Cong. (2021) (statement of Kenneth C. Griffin,
Chief Executive Officer, Citadel LLC), available at https://financialservices.house.gov/
uploadedfiles/hhrg-117-ba00-wstate-griffink-20210218.pdf.  Congress also heard testimony that
the action Robinhood took “was for one reason and one reason only: to allow [Robinhood] to
continue to meet [Robinhood’s] regulatory deposit requirements.”  Id. (statement of Vladimir
Tenev, Chief Executive Officer, Robinhood Markets, Inc.), available at
https://financialservices.house.gov/uploadedfiles/hhrg-117-ba00-wstate-tenevv-20210218.pdf.
The Court may take judicial notice of congressional testimony.  See D.A.M. v. Barr, 474 F. Supp.
3d 45, 55 n.12 (D.D.C. 2020) (quoting Fed. R. Evid. 201(b)(2)).
8 SEC, Thinking About Investing in the Latest Hot Stock? (Jan. 30, 2021) (“SEC Statement”),
https://www.sec.gov/oiea/investor-alerts-and-bulletins/risks-short-term-trading-based-social-
media-investor-alert.  The Court may take judicial notice of the SEC statement because it is a
public record, the accuracy of which cannot reasonably be questioned.  See Universal Express,
Inc. v. U.S. S.E.C., 177 F. App’x 52, 53 (11th Cir. 2006) (taking judicial notice of public records
at the motion to dismiss stage).
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with) [a conspiracy or] agreement,’ that is, whether the complaint ‘possess[es] enough heft to
show that the pleader is entitled to relief.”  Jacobs v. Tempur-Pedic Int’l, Inc., 626 F.3d 1327,
1332-33 (11th Cir. 2010) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557 (2007));
see also In re Farm-Raised Salmon & Salmon Prods. Antitrust Litig., No. 19-21551-CIV, 2021
WL 1109128, at *10 (S.D. Fla. Mar. 23, 2021).  A plaintiff must allege “more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.”
Twombly, 550 U.S. at 555.  “Plausibility is the key, as the ‘well-pled allegations must nudge the
claim across the line from conceivable to plausible.’”  Jacobs, 626 F.3d at 1333 (quoting
Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1261 (11th Cir. 2009) (abrogated on other
grounds)).
The “‘crucial question’ with regard to a conspiracy claim under section 1 ‘is
whether the challenged anticompetitive conduct stems from independent decision or from an
agreement.’”  Salmon Antitrust Litig., 2021 WL 1109128 at *10 (quoting Twombly, 550 U.S.
at 553).  Plaintiffs must present “direct or circumstantial evidence that reasonably tends to prove
that the [defendant] and others had a conscious commitment to a common scheme designed to
achieve an unlawful objective.”  Id. (alteration in original) (quoting Monsanto Co. v. Spray-Rite
Serv. Corp., 465 U.S. 752, 764 (1984)).  To plausibly allege an agreement through circumstantial
evidence, Plaintiffs must show “parallel conduct” together with sufficient “plus factors,” which
may include “common motive to conspire, evidence that shows that the parallel acts were against
the apparent individual economic self-interest of the alleged conspirators, and evidence of a high
level of interfirm communications.”  Id. (citations omitted).
Once an agreement is plausibly alleged, courts “must first decide whether to
analyze [it] under the per se rule or the rule of reason.”  Levine v. Cent. Fla. Med. Affiliates, Inc.,
72 F.3d 1538, 1549 (11th Cir. 1996).  There is a “presumption in cases brought under section 1
of the Sherman Act that the rule-of-reason standard applies,” and courts “apply the per se rule
only when history and analysis have shown that in sufficiently similar circumstances the rule of
reason unequivocally results in a finding of liability.”  Id. (citations omitted).  If the alleged
conduct is not anticompetitive per se, the “rule of reason analysis requires the plaintiff to prove
(1) an anticompetitive effect of the defendant's conduct on the relevant market, and (2) that the
conduct has no procompetitive benefit or justification.”  Id. at 1551 (citations omitted).  To prove
an anticompetitive effect on the relevant market, Plaintiffs must first sufficiently plead a relevant
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market.  Tempur-Pedic, 626 F.3d at 1336.  Then, Plaintiffs must show either actual
anticompetitive harm in that market, which include “reduction of output, increase in price, or
deterioration in quality”, or potential harm, which requires Plaintiffs also to show that “the
defendants possess[] power in that market.”  Id. at 1339 (citations omitted).
Finally, where antitrust claims arise from activity regulated by the federal
securities laws, those claims are precluded by the federal securities laws.  In Credit Suisse Sec.
(USA) LLC v. Billing, the Supreme Court held that securities laws implicitly preclude antitrust
laws if they are “clearly incompatible.”  551 U.S. 264, 285 (2007).
Plaintiffs’ claims fail for three independent reasons under these applicable legal
standards.  First, Plaintiffs fail to plead any allegations sufficient to support an inference of an
illegal agreement, and instead rely on hollow—and legally deficient—conclusions that a
conspiracy was formed.  The alleged conspiracy is wholly implausible; the facts conceded in the
CCAC present a far more likely—and lawful—explanation for the challenged conduct.  Second,
Plaintiffs fail to allege the necessary elements to plead a claim under Section 1 of the Sherman
Act.  Third, even if Plaintiffs’ claims were taken to plead some kind of antitrust claim (which
they do not), such a claim would nonetheless be precluded by the federal securities laws.
I.
PLAINTIFFS FAIL SUFFICIENTLY TO PLEAD THAT DEFENDANTS
AGREED TO CONSPIRE.
Plaintiffs must allege “direct or circumstantial evidence that reasonably tends to
prove that the [defendant] and others had a conscious commitment to a common scheme
designed to achieve an unlawful objective.”  Monsanto, 465 U.S. at 768.  “Restraints imposed by
agreement between competitors have traditionally been denominated as horizontal restraints, and
those imposed by agreement between firms at different levels of distribution as vertical
restraints.”  Bus. Elecs. Corp. v. Sharp Elecs. Corp., 485 U.S. 717, 730 (1988).
Plaintiffs allege that entities at three different levels of the financial industry—
Citadel Securities as a Market Maker Defendant, the Clearing Broker Defendants and the
Introducing Broker Defendants—all conspired in the span of a few days to impose different
trading limitations on different stocks.9  Plaintiffs are therefore required to allege direct or

9 Among the Defendants, members of the same corporate family are considered as a single
economic actor and are thus “incapable of conspiring with each other.”  Copperweld Corp. v.
Independence Tube Corp., 467 U.S. 752, 776 (1984).  While the CCAC discusses “Clearing
Brokerage Defendants”—plural—and lists three entities (Apex, ETC and PEAK6) (CCAC
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circumstantial evidence that each of the Introducing Broker and Clearing Broker Defendants
reached an unlawful agreement with Citadel Securities, that each Introducing Broker Defendant
reached an agreement with each Clearing Broker Defendant, and that each Introducing Broker
Defendant reached an agreement with each of the other Introducing Broker Defendants.  See
Twombly, 550 U.S. at 565 n.10 (dismissing conspiracy allegations because “the pleadings
mentioned no specific time, place, or person involved in the alleged conspiracies” and gave “no
clue as to which [defendant] (much less which of their employees) supposedly agreed”); Quality
Auto, 917 F.3d at 1262 (requiring allegations for “each defendant” in the conspiracy).  But
Plaintiffs do not specify in any way what the alleged agreement was, its contours, or even the
structure of the alleged conspiracy involving market participants that admittedly are not
horizontal competitors.
A.
Plaintiffs Fail To Allege Any Direct Evidence of an Agreement.
Direct evidence “is explicit and requires no inferences to establish the proposition
or conclusion being asserted.”  Salmon Antitrust Litig., 2021 WL 1109128 at *10 (quoting In re
Loc. TV Advert. Antitrust Litig., No. 18-C-6785, 2020 WL 6557665, at *7 (N.D. Ill. Nov. 6,
2020)).  Such evidence would consist, for example, of a “document or conversation explicitly
manifesting the existence of” an agreement.  Burtch v. Milberg Factors, Inc., 662 F.3d 212, 226
(3d Cir. 2011) (quoting In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 324 n.23 (3rd Cir.
2010)); see also Mayor & City Council of Balt. v. Citigroup, Inc., 709 F.3d 129, 136 (2d Cir.
2013) (“[Direct] evidence would consist, for example, of a recorded phone call in which two
competitors agreed to fix prices at a certain level.”).  Plaintiffs had the opportunity to review
more than 25,000 pages of documents that Defendants produced to government regulators and
then re-produced to Plaintiffs; they even requested a 14-day extension of their deadline to file the
instant complaint to allow for more time to review those materials.  (See Plaintiffs’ Unopposed
Motion For Extension of Time, ECF No. 334.)  Notwithstanding those documents and that
additional time, Plaintiffs have provided no direct evidence of the unlawful agreements they

¶¶ 66-75), it then admits that PEAK6 owns both Apex and ETC (id. ¶ 73).  Likewise, Robinhood
Financial and Robinhood Securities are both owned by Robinhood Markets, Inc (“Robinhood
Markets”), and E*TRADE Financial Holdings LLC (“E*TRADE Holdings”) owns E*TRADE.
No alleged agreement within any of these intra-family groups could give rise to an actionable
conspiracy claim.
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allege in the CCAC.  Specifically, there is no direct evidence concerning when, where or how the
alleged conspiracy was entered, who was part of it, or what its structure or purpose was.
B.
Plaintiffs Fail Adequately To Allege Circumstantial Evidence of an
Agreement.
Where, as here, plaintiffs are unable to present direct evidence of an agreement,
they must plead “parallel conduct” and “sufficient ‘plus factors.’”  Auto. Alignment & Body Serv.
v. State Farm Mut. Auto. Ins. Co., 953 F.3d 707, 726 (11th Cir. 2020) (quoting Quality Auto, 917
F.3d at 1262).  Critically, “[a]llegations of parallel conduct . . . are insufficient standing alone to
raise an inference of conspiracy.”  Salmon Antitrust Litig., 2021 WL 1109128 at *10 (quoting
Auto. Alignment, 953 F.3d at 726).  Instead, plaintiffs must allege both parallel conduct and
“sufficient ‘plus factors’ to make the parallel conduct ‘more probative of conspiracy than of
conscious parallelism.’”  Auto. Alignment, 953 F.3d at 726 (quoting Quality Auto, 917 F.3d at
1262).  Plaintiffs do not and cannot allege parallel conduct or sufficient plus factors, and
therefore fail to push “their claims across the line from conceivable to plausible.”  Quality Auto,
917 F.3d at 1256-57 (citing Twombly, 550 U.S. at 570).
1.
Plaintiffs Fail Plausibly To Allege Parallel Conduct Among Any of the
Defendants From Which One Should Infer a Conspiracy.
Plaintiffs do not plausibly allege parallel conduct among the defendants from
which a conspiracy could be inferred.
Under Twombly, allegations of parallel conduct alone cannot survive a motion to
dismiss, but “must be placed in a context that raises a suggestion of a preceding agreement, not
merely parallel conduct that could just as well be independent action.”  550 U.S. at 557.  As this
Court has explained, “[f]actual allegations that are ‘consistent with conspiracy, but just as much
in line with . . . rational and competitive business strategy’ are insufficient.”  In re Fla. Cement
& Concrete Antitrust Litig., 746 F. Supp. 2d 1291, 1308 (S.D. Fla. 2010) (quoting Twombly, 550
U.S. at 554).  The Court “may infer from the factual allegations in the complaint obvious
alternative explanations, which suggest lawful conduct rather than the unlawful conduct the
plaintiff would ask the court to infer.”  Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 682 (2009))
(internal quotation and alteration omitted); see also id. (“After Twombly, to successfully plead a
Section 1 claim based on defendants’ conduct alone, plaintiffs must allege facts that make the
existence of a preceding unlawful agreement the most plausible explanation for a defendants’
[sic] behavior.”); Auto. Alignment, 953 F.3d at 728-29 (holding that plaintiffs failed plausibly to
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allege a Section 1 claim when they “offer[ed] no allegations that explain[ed] why the loss in
business they allege[ed] [was] plausibly explained by steering instead of other ‘obvious
alternative explanation[s]’”) (quoting Twombly, 550 U.S. at 567).
Here, Plaintiffs not only fail to make allegations plausibly suggesting a preceding
agreement, but also themselves provide the “obvious alternative explanation” for the allegedly
collusive behavior.  Twombly, 550 U.S. at 567.  Specifically, Plaintiffs allege (accurately) that
the NSCC—the clearing agency for securities transactions—imposed collateral requirements on
brokers to “mitigate the risk of settling trades.”  (CCAC ¶ 413.)  Plaintiffs further allege
(correctly) that the NSCC “collateral requirement changes depending on the perceived risk of the
order” (id.), that the Clearing Brokers “typically pass down to the brokerages [the Introducing
Brokers]” those collateral requirements (id.),10 and (again, correctly) that the NSCC “demanded
that its member clearing agents supply additional collateral to support” trades in the so-called
meme stocks on January 28 (the day of the alleged conspiracy) (id. ¶ 414).  For example,
according to Plaintiffs’ own allegations, Robinhood faced a deficit of more than $3 billion on
January 28 as a result of the NSCC’s collateral call.  (Id. ¶ 231.)  Apex also received a significant
increase in its NSCC collateral requirement.  (Id. ¶¶ 274-276.)  Again, according to Plaintiffs
themselves, these collateral requirements “protect[] NSCC and all market participants against
clearing member defaults,” “margin requirements must be met by clearing members on a timely
basis,” and the “NSCC collects clearing fund contributions, or margin, at the start of each day
and intraday in volatile markets.”  (Id. ¶ 103.)  Plaintiffs also allege (correctly), that the markets
for the Relevant Securities were extraordinarily volatile on the days in question and trading
volume was unprecedented, providing an independent rationale for the restrictions implemented
by brokers not alleged to have received an increased collateral call.  (Id. ¶¶ 200-209.)
These pleaded facts are not, as Plaintiffs assert, simply “cover” for an alleged
conspiracy (id. ¶ 415)—they provide a plausible (and the actual) non-conspiratorial explanation
of the brokers’ “independent responses to common stimuli . . . unaided by an advance
understanding among the parties.”  Twombly, 550 U.S. at 556 n.4 (citation omitted); see also Am.

10 This allegation is incorrect as Clearing Brokers do not typically pass on collateral requirements
to Introducing Brokers—Clearing Brokers may communicate to Introducing Brokers whether the
clearing entity needs to put in place certain restrictions to address volatility-based deposit
requirements.  (See, e.g., id. ¶¶ 273, 470-471.)
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Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1295 (11th Cir. 2010) (noting that “[t]he complaint
does not plausibly suggest that by using similar methods to downcode and bundle claims,
Defendants have acted in any way inconsistent with the independent pursuit of their own
economic self-interest,” and “[a]ccordingly, Defendants’ parallel conduct is equally indicative of
rational independent action as it is concerted, illegitimate conduct”); Mayor & City Council of
Balt., 709 F.3d at 138 (noting that “Defendants’ alleged actions—their en masse flight from a
collapsing market in which they had significant downside exposure—made perfect business
sense”).  And for those reasons the pleaded facts are dispositive.
The independent, non-conspiratorial rationale for the challenged conduct—and
the lack of parallel conduct that could plausibly support a conspiracy claim—is confirmed by
two additional facts, each admitted by Plaintiffs.  First, Plaintiffs concede that a significant
number of brokers that are not alleged to have been conspirators enacted trading restrictions in
response to the market volatility and volume.  (CCAC ¶ 246 (“[T]he other Brokerage Defendants
and other brokerages employed similar tactics to prevent Retail Investors from opening new
positions in at least one or more of the Relevant Securities.” (emphasis added)).)  This includes
major retail brokerages such as Charles Schwab and TD Ameritrade, as well as the eight
Introducing Brokers that Plaintiffs have voluntarily dismissed since filing their Consolidated
Complaint (ECF No. 358), and other brokers that were listed as Defendants in the original (pre-
MDL) Complaints but dropped in Plaintiffs’ Consolidated Complaint such as Cash App
Investing LLC, eToro USA Securities, Inc. and Barclays Bank PLC (compare ECF No. 358, with
Shane Cheng and Terell Sterling v. Ally Financial Inc. et al., 21-cv-00781 (N.D. Cal.)
(Complaint, ECF No. 1, at 1)).  For example, the CCAC recognizes that Charles Schwab
implemented restrictions on transactions for GME, AMC and EXPR, and TD Ameritrade
restricted transactions in various securities including GME and AMC.  (CCAC ¶¶ 198-199.)
These actions, undertaken by entities not alleged to be part of the conspiracy, directly refute the
plausibility of any claim that the imposition of trading restrictions during the last week of
January 2021 “tends to prove that the [defendant] and others had a conscious commitment to a
common scheme designed to achieve an unlawful objective.”  Salmon Antitrust Litig., 2021 WL
1109128 at *10 (alteration in original) (quoting Monsanto, 465 U.S. 764).
Second, the allegedly parallel conduct undertaken by the Defendants varied in
material ways, both before and after the NSCC’s collateral calls on January 28, 2021.  Although
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the CCAC discusses nine “Relevant Securities,” 11 of the 15 original defendants (and 4 of the
remaining 8 defendants) are alleged to have restricted trading in only three of these symbols.
(Compare CCAC ¶ 6 (listing the nine Relevant Securities), with CCAC ¶ 276 (Apex restricted
only GME, AMC and KOSS).)  Interactive Brokers is alleged to have restricted trading on
options (but not stock purchases) for five of the nine Relevant Securities (AMC, BB, EXPR,
GME and KOSS).  (See id. ¶¶ 249-252.)  For at least four of the Relevant Securities (BBBY,
NOK, TR and TRVG)—and four others not listed by Plaintiffs (AAL, CTRM, NAKD, SNDL)—
only Robinhood is alleged to have actually imposed any restriction.  (Id. ¶¶ 251-252)  E*TRADE
is alleged only to have “halted GME and AMC.”  (Id. ¶ 250.)  Finally, for an alleged conspiracy
where Citadel Securities purportedly had brokers restricting retail investor purchases of the
Relevant Securities for its benefit, nowhere in the CCAC do Plaintiffs allege that Citadel
Securities adopted any restrictions of its own.  Plaintiffs do not allege any facts even suggesting
that Citadel Securities did anything other than fulfill all orders for each of the Relevant Securities
that it received from Introducing and Clearing Brokers.
The table below summarizes Plaintiffs’ allegations concerning the trading
restrictions implemented by various brokers, both alleged conspirators and non-conspirators:

Plaintiffs must thus concede that the “restrictions on trading took different forms.”  (Id. ¶ 238.)
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These allegations simply cannot “support[] an inference of a conspiracy” because
Defendants’ actions were “not uniform” and “defendants each reacted in different ways.”
Anderson News, L.L.C. v. Am. Media, Inc., 899 F.3d 87, 105 (2d Cir. 2018) (explaining that
“defendants’ conduct was not, in fact, parallel” where some defendants refused to pay imposed
surcharge, while others “undertook independent efforts to negotiate” or “agreed to temporarily
pay the surcharge”).
2.
Plaintiffs Fail To Allege Sufficient Plus Factors in Support of a
Conspiracy.
Plaintiffs further fail to plead “sufficient plus factors to make the parallel conduct
more probative of conspiracy” than of independent conduct.  Salmon Antitrust Litig., 2021 WL
1109128, at *10; see also Quality Auto, 917 F.3d at 1267 (recognizing plus factors as
circumstantial evidence that “tends to exclude the possibility of independent action”).
(a)
There Is No Common Motive To Conspire.
Plaintiffs fail to plausibly allege that Defendants had a common motive to
conspire.  (CCAC ¶ 406.)  Such a common motive to conspire would require that the parties had
a collective interest in acting in concert to achieve an anticompetitive end, such as raising prices.
See In re Musical Instruments & Equip. Antitrust Litig., 798 F.3d 1186, 1194 (9th Cir. 2015)
(noting that a “firm that believes that it could increase profits by raising prices has a motive to
reach an advance agreement with its competitors”).  In support of this factor, Plaintiffs assert that
Citadel Securities had a motive to restrict trading to avoid incurring losses on its supposed short
positions.  (CCAC ¶ 406.)  But Plaintiffs fail to allege any facts to establish that Citadel
Securities held short positions in the Relevant Securities during the relevant time period,
sheepishly conceding “it is not possible to ascertain which investor has a short position in a
particular security at any particular time.”  (Id. ¶ 399; see also id. ¶ 387).  “Pure speculation does
not make out a plus factor.”  United Am. Corp. v. Bitmain, Inc., No. 18-CV-25106, 2021 WL
1807782, at *13 (S.D. Fla. Mar. 31, 2021).  Nor do Plaintiffs allege that Citadel Securities itself
restricted any trading.  In short, Plaintiffs’ conclusory allegations that Citadel Securities had a
motive to concoct this entire conspiracy simply do not add up.
There is also no allegation—conclusory or otherwise—that any Clearing Broker
or Introducing Broker Defendant was engaged in proprietary short selling.  To the contrary,
Plaintiffs concede that the various brokers make money only when trades are processed.  (CCAC
¶¶ 420-422.)  For the securities trade orders at issue, the trading price at which each security is
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bought and sold has no direct bearing on the per-trade fees each of the Introducing Brokers and
Clearing Brokers earns from their customers’ trading activity.  As Plaintiffs concede, the
Introducing Broker and Clearing Broker Defendants thus stood to lose significant revenues by
implementing trading restrictions, in addition to the significant reputational harm that they faced.
(Id.)  Why, then, would the various Clearing and Introducing Broker Defendants decide they
wanted to lose money and risk negative publicity simply to help Citadel Securities?
The CCAC lacks an answer to that critical question.  Indeed, there is no factual
allegation—simply mere innuendo—supporting the proposition that Citadel Securities asked,
induced or coerced any of the Defendants.  While Plaintiffs allege that Robinhood (but not
several other Introducing Broker and Clearing Broker Defendants) had a PFOF relationship with
Citadel Securities, the CCAC does not allege that Citadel Securities had sufficient market power
to force any of the Clearing Brokers or Introducing Broker Defendants to do something purely to
benefit Citadel Securities.  Contrast with Interstate Cir. v. United States, 306 U.S. 208, 214
(1939) (finding that the distributors distributed “about 75 per cent. of all first-class feature films
exhibited in the United States,” and this market power enabled them to enforce the conspiracy).11
There also is no allegation that Citadel Securities offered any financial inducement for the
Introducing Broker or Clearing Broker Defendants to forgo profits to allegedly save Citadel
Securities money.  Contrast with United States v. Apple, Inc., 791 F.3d 290, 298 (2d Cir. 2015)
(finding conspiracy where publishers agreed to “raise the price of ebooks and thus protect their
profit margins” with Apple’s help).  Plaintiffs also fail to provide a plausible theory why the
broker defendants would comply with Citadel Securities’ alleged wishes to restrict trading, rather
than simply re-directing trades to competing market makers (which are noticeably absent from
the CCAC).
In sum, Plaintiffs ask this Court to infer that the Introducing and Clearing Broker
Defendants decided to introduce varying versions of trading restrictions (at the same time that
alleged non-conspirators were also implementing a variety of trading restrictions) simply
because some had existing business relationships with Citadel Securities, rather than because
these Defendants faced unprecedented challenges, such as (in some cases) billions of dollars in

11 Plaintiffs allege that Citadel Securities’ PFOF made up 29% of Robinhood’s revenue in 2019,
34% in 2020 and 43% in the first quarter of 2021 (CCAC ¶¶ 135, 283), and less than one-quarter
of Apex’s revenue from market makers (id. ¶ 140).
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unexpected collateral requirements in the middle of one of the most volatile market moments in
history.  That inference is totally implausible; if these allegations meet the Twombly test, it is
hard to imagine an alleged conspiracy that would not.
(b)
Actions Taken Against Unilateral Self-Interest Are Not
Probative Here.
Plaintiffs entirely fail to allege any actions taken by Defendants against their self-
interest that are probative of a conspiracy.  This plus factor is only probative of a conspiracy if
Plaintiffs allege some furthered collective self-interest.  See Mayor & City Council of Balt., 709
F.3d at 138 (noting that “alleged behavior that would plausibly contravene each defendant’s self-
interest ‘in the absence of similar behavior by rivals’” may suggest prior agreement) (citing Starr
v. Sony BMG Music Ent., 592 F.3d 314, 327 (2d Cir. 2010)).  In other words, this plus factor is
present when alleged conspirators do something that would be unprofitable if done individually,
but becomes profitable through collective action—such as imposing a price increase, which
would lose business if no competitor raised prices but would help everyone if all sellers in the
market raised prices.  See In re Musical Instruments, 798 F.3d at 1195.  Plaintiffs face two
problems here.
First, the allegations give rise to plausible, non-conspiratorial reasons why
implementing trading restrictions was in—rather than against—the independent self-interest of
each Clearing Broker and Introducing Broker Defendant:  namely to protect the firms and their
customers from exceedingly volatile market trading, as well as to reduce each of their NSCC
collateral requirements resulting from the volatility.  (See Section I.B.1.)  Each broker’s primary
interest is to attract and retain a strong customer base.  The Clearing and Introducing Broker
Defendants nonetheless were forced out of necessity to impose restrictions, even though such
restrictions create a real risk of both immediate and long-term reputational and financial harm
(including this Action).  Plaintiffs recognize that various brokers not alleged to be part of the
conspiracy and not added as defendants (or originally sued but now dismissed as outlined above)
implemented their own restrictions on some of the same securities at the same time.  (See Section
I.B.1.)  Where a “benign explanation for the action is equally or more plausible than a collusive
explanation, the action cannot constitute a plus factor.”  Williamson Oil Co. v. Philip Morris
USA, 346 F.3d 1287, 1310 (11th Cir. 2003).
Second, although the restrictions cost each broker revenue—fewer trades mean
fewer payments for order flow (or fewer commissions) for the Clearing and Introducing Broker
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Defendants, and less spread capture for the Market Makers (CCAC ¶¶ 420-422)—the fact that
others may also decide to reduce trading volume does nothing to fill that revenue hole.  There is
no allegation—nor could there be—that lower trading volume somehow collectively increases
profits for brokers.  This simply is nothing like the cases that involve raising prices or reducing
output, where concerted action makes an otherwise unprofitable individual action collectively
profitable.
(c)
Plaintiffs Fail To Allege Opportunities To Coordinate and
Collude and Evidence of Concealment and Pretext.
The CCAC also lacks sufficient allegations of opportunities between the
Defendants to enter into the supposed conspiracy and to conceal such an agreement.
Conversations that courts have found to “support a reasonable inference of conspiracy” include
“bilateral and multilateral agreements not to compete and a high level of communications among
Defendants.”  Salmon Antitrust Litig., 2021 WL 1109128, at *15.
After reviewing tens of thousands of pages of discovery produced to entities
investigating the trading restrictions, Plaintiffs can point to only a handful of inter-firm
communications in their complaint.  For most of the Defendants, they allege literally no
communications.  Indeed, there are no allegations that Defendants PEAK6, ETC or Interactive
Brokers ever spoke or otherwise communicated during the relevant time with each other or any
of the other alleged conspirators, including Citadel Securities.  That pleading failure itself
negates Plaintiffs’ conspiracy claim as to those Defendants.
E*TRADE is alleged to have communicated with Citadel Securities—but no other
alleged conspirator—and those communications related only to order cancellations as a routine
part of their ongoing business relationship and resulted in the cancellations of four total orders—
none of which are alleged to pertain to the Relevant Securities.  (CCAC ¶¶ 315-316.)
With respect to Apex, Plaintiffs unpersuasively point to a single chat message
describing a call between a Robinhood Financial employee (not alleged to be involved in the
decisions to impose trading restrictions) and an unidentified Apex employee that flags a Reddit
thread highlighting a way in which customers were circumventing Robinhood’s restrictions on
options.  (Id. ¶ 457.)  As Plaintiffs acknowledge, the communication occurred on January 29,
2021, one day after Apex had lifted its own trading restrictions for GME and AMC.  (Id. ¶ 327.)
Plaintiffs do not explain why such a communication suggests the existence of a conspiracy if one
of the parties had already abandoned the alleged collusive conduct and offer no basis for their
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assertion that Apex “continued its participation in the scheme by policing the conspiracy,”
particularly since Apex was no longer effecting the alleged scheme itself.  (Id.)12  The remaining
allegations concerning Apex simply reflect that Apex communicated with its customers on
business matters.  (Id. ¶¶ 443-444.)
Finally, with respect to Robinhood, Plaintiffs point to limited communications
with Citadel Securities that, as is clear from the face of those documents and others produced to
Plaintiffs and cited in the CCAC, reflect ordinary business dealings between a Market Maker and
its client.13  Specifically, those communications related to the ongoing “‘payment for order flow’
relationship” between Robinhood and Citadel Securities and had nothing to do with the
restrictions Robinhood later imposed.  (Id. ¶¶ 283, 312-313.)  Plaintiffs concede as much when
they note that a Robinhood executive, in discussing an upcoming call with Citadel Securities,
“indicated that she believed Citadel Securities would make demands on limiting payment for
order flow.”  (Id. ¶ 305.)  Additional correspondence Plaintiffs rely on further demonstrates that
the conversations between Robinhood and Citadel Securities were about PFOF, not trading
restrictions.  (See id. ¶¶ 307, 310.)  Plaintiffs plead no communications whatsoever indicating
even that Citadel had advance notice of the Robinhood restrictions on trading of any of the
Relevant Securities, let alone any conspiracy to impose such restrictions.  See Todorov v. DCH
Healthcare Auth., 921 F.2d 1438, 1456 (11th Cir. 1991) (“[T]he mere opportunity to conspire
among antitrust defendants does not, standing alone, permit the inference of conspiracy.”).
That leaves only Plaintiffs’ allegations concerning public statements by
Interactive Brokers’ Chairman, Thomas Peterffy,14 and Robinhood’s CEO, Vlad Tenev, on

12 This communication—made for the purpose of informing Robinhood that Robinhood’s
customers were publicly discussing a plan to evade Robinhood’s trading policies (CCAC ¶¶ 327-
330)—is moreover protected under Cement Manufacturers Protective Association v. United
States, 268 U.S. 588, 604 (1925), which holds that it is not an antitrust violation for even
competitors to warn one another of fraudulent conduct by others.
13 Plaintiffs also contend that a communication between Citadel Securities and Robinhood on
January 30, 2021 suggests an effort “to coordinate messaging regarding the restrictions placed on
January 28, 2021.”  (CCAC ¶ 463.)  This does not give rise to an inference of a conspiracy.  As
Plaintiffs concede, these communications, which occurred after the alleged conspiracy and
relevant events, were between public relations teams (id. ¶¶ 335, 448), which stands to reason in
light of the significant media attention on both companies—among many others—after the
market events of late January 2021.
14 This is Plaintiffs’ only allegation pertaining to Interactive Brokers’ alleged conduct in the
entirety of their 135-page complaint.  It provides no support whatsoever for their claimed
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January 28, 2021.  (See CCAC ¶ 279.)  Plaintiffs allege that each alluded to the need to “protect”
his respective company by restricting trading in the relevant securities, and implausibly suggest
the statements evidence the alleged agreement.  (Id.)  In fact, they do the opposite, confirming
that each broker had an independent incentive to take action to protect its own business and
customers in a time of unprecedented market volatility.  The fact that both Peterffy and Tenev
made similar true statements on the same day merely reflects the day’s unprecedented
circumstances, as each company faced common stimuli at the same time.
These allegations are a far cry from the types of allegations upon which courts
rely to satisfy this plus factor.  See, e.g., Salmon Antitrust Litig., 2021 WL 1109128, at *15
(referencing “bilateral and multilateral agreements not to compete and a high level of
communications among Defendants,” including “top management” meetings where participants
“discussed plans of non-competition and cooperation between the companies” and their
respective prices).  Indeed, this Court rejected as insufficient the pleaded “opportunity to
conspire” plus factor in Florida Cement, in which the plaintiffs alleged far more than is pleaded
in this Action—that the defendants had “frequently communicated through in-person meetings,
telephone calls, and other means” and that “Defendants’ meetings in furtherance of the
conspiracy included those held at trade association meetings, social events, and corporate
meetings.”  746 F. Supp. 2d at 1316 (denying motion to dismiss based on separate allegations of
direct evidence).  The Plaintiffs here—even with substantial discovery—offer no such
allegations.
(d)
Plaintiffs Fail To Show How the Existence of Government
Inquiries Creates an Inference of Conspiracy.
Plaintiffs allege that a conspiracy can be inferred based on the announcement of
regulatory investigations stemming from the events of January 2021.  (CCAC ¶¶ 486-493.)  But
where, as here, “allegations are sparse, the existence of government inquiries [is] insufficient to
raise an inference of conspiracy.”  Salmon Antitrust Litig., 2021 WL 1109128, at *17; see also In
re Mexican Gov’t Bonds Antitrust Litig., 412 F. Supp. 3d 380, 390 (S.D.N.Y. 2019) (“It is far
from clear that an ongoing government investigation involving Defendants would, in the absence
of more substantial allegations, weigh in favor of the complaint’s plausibility.”).

conspiracy, and the dearth of allegations as to Interactive Brokers merely confirms the infirmity
of Plaintiffs’ claim against it.
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(e)
Plaintiffs Fail To Allege Structural Characteristics To Support
the Existence of an Anticompetitive Agreement.
Finally, Plaintiffs allege that the “structure and characteristics of the market for
securities . . . make it conducive to collusion and anticompetitive conduct.”  (CCAC ¶ 362.)
Courts generally recognize that some market characteristics, such as “high market
concentration,” “significant barriers to entry” and a “commoditized product,” “contribute to [a]
circumstantial case.”  Salmon Antitrust Litig., 2021 WL 1109128, at *14.  This plus factor also
does nothing to support Plaintiffs’ claim.
Typically, a plaintiff relying on this plus factor would demonstrate that a series of
horizontal competitors commanded such an uncontestable share of the marketplace that they
would profit from raising prices, restricting output or reducing quality.  See Fla. Cement, 746 F.
Supp. 2d at 1317 (noting that “the cement and concrete markets in Florida are controlled by a
small number of companies and these markets have high barriers to entry because of high start-
up costs” (citation omitted)).  For example, an oil-producing cartel could limit the barrels of oil
that would go onto the market for the purpose of raising prices, and the plaintiff could
demonstrate that there was no meaningful supply alternative.  Or salmon distributors could
collude to fix prices because there is a limited supply of salmon and those producers who are part
of the conspiracy would benefit from increased prices.  In other words, the alleged conspirators
would participate directly in the alleged market in a way that would permit them to profit from
anticompetitive conduct, shielded from competition by barriers to entry or other factors.
That is not at all what Plaintiffs allege here.  While the CCAC is far from a model
of clarity on this point, the “product” at issue—for which the price was allegedly depressed—
appears to be each of the Relevant Securities (e.g., GME, AMC).  Plaintiffs seem therefore to
allege the existence of a market for each of the securities.  (CCAC ¶ 362 (alleging “the market
for securities”).)  However, not one of the Clearing Broker or Introducing Broker Defendants is
alleged to have bought or sold the Relevant Securities for its own account.  As Plaintiffs
concede, regardless of the price of these securities, “[b]roker-dealers benefit from investors
transacting on their platforms” (id. ¶ 420), and Clearing Brokers generally “earn a transaction fee
every time they make a trade,” with these “clearing fees [forming] the very basis of their
business models” (id. ¶ 421).  In the alleged market for each of the securities at issue, there are
no barriers to entry, no fixed costs and no captive market; a fundamental tenet of the U.S.
securities markets is that anyone can buy or sell a share of stock.
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The fallacy of Plaintiffs’ market structure allegations is that they pivot away from
talking about the markets in which they seem to allege harm—the alleged markets for the
Relevant Securities—to talking about other issues in other markets.  For example, Plaintiffs
allege there are “substantial barriers to entry” in the “financial services industry” (id. ¶ 365) and
“high fixed costs and low variable costs” in the “markets for broker dealers, clearing firms and
market making” (id. ¶ 368), and that retail investors are captive consumers in the “market for
broker dealers” (id. ¶¶ 377-379).  But the market for brokers (if there is any such market) is not
relevant here; Plaintiffs do not allege that the brokers somehow conspired to raise prices (i.e.,
charge commissions) to retail investors or to raise fees (i.e., PFOF) to Market Makers.  Because
Plaintiffs fail to make any market structure allegations for the market in which they allege the
price was depressed (the purported markets for the Relevant Securities), their reliance on this
plus factor also fails.
II.
PLAINTIFFS FAIL TO PLEAD THE REMAINING ELEMENTS OF A
SECTION 1 CLAIM.
Even if Plaintiffs had adequately alleged an agreement—and they have not—they
still have not adequately pleaded their antitrust claim because the CCAC fails to define the
relevant market, adequately allege market power and plead anticompetitive effects.  Each of
these elements is required to plead a rule of reason claim.
Plaintiffs do not even try to allege the requisite elements of a rule of reason claim,
instead asserting in a single cursory allegation—without any explanation—that the purported
conspiracy is unlawful per se.  (CCAC ¶ 505 (“Defendants’ anticompetitive and unlawful
conduct is per se illegal.”).)  However, per se condemnation is a very narrow exception to the
default rule of reason that is reserved for a limited category of specific factual circumstances that
courts have determined—after extensive judicial experience with the same basic fact pattern—
are “so plainly anticompetitive that no elaborate study of the industry is needed to establish their
illegality.’”  Procaps S.A. v. Pantheon, Inc., 845 F.3d 1072, 1083 (11th Cir. 2016) (quoting Nat’l
Soc’y of Pro. Eng’rs v. United States, 435 U.S. 679, 692 (1978)).  Outside the limited category of
conduct for which per se condemnation is appropriate, courts assess an alleged violation of the
Sherman Act by applying the rule of reason, which as noted requires specific—and plausible—
factual allegations (and ultimately proof) of an “anticompetitive effect of the defendant’s conduct
on the relevant market.”  Levine, 72 F.3d at 1551.
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A.
The Court Should Address the Question of Per Se vs. Rule of Reason at the
Motion To Dismiss Stage.
“Whether to apply a per se or rule of reason analysis is a question of law.”  Nat’l
Bancard Corp. (NaBanco) v. VISA U.S.A., Inc., 779 F.2d 592, 596 (11th Cir. 1986).
Accordingly, courts routinely address at the motion to dismiss stage whether a plaintiff has
adequately pleaded an agreement that would be subject to per se treatment.  See, e.g., Tempur-
Pedic, 626 F.3d at 1334-36 (affirming holding that alleged anticompetitive conduct was not a per
se violation at the motion to dismiss stage); Quality Auto, 917 F.3d at 1271-72 (same).
B.
Plaintiffs’ Allegations Do Not Qualify for Per Se Treatment under the
Antitrust Laws.
Plaintiffs’ allegations do not fit within the circumscribed category of cases to
which per se treatment is confined.  In fact, courts consider conduct to be per se unlawful “only
when history and analysis have shown that in sufficiently similar circumstances” application of
“the rule of reason unequivocally results in a finding of liability.”  Levine, 72 F.3d at 1549
(quoting Consultants & Designers, Inc. v. Butler Serv. Grp., Inc., 720 F.2d 1553, 1562 (11th Cir.
1983)).  Per se treatment is therefore typically limited to certain “‘horizontal restraints’—
restraints ‘imposed by agreement between competitors,’” whereas “vertical restraints—
i.e., restraints ‘imposed by agreement between firms at different levels of distribution’” are
assessed under the rule of reason.  Ohio v. Am. Express Co., 138 S. Ct. 2274, 2283-84 (2018)
(quoting Bus. Elecs., 485 U.S. at 730).
But even with respect to horizontal restraints, only a limited number of them are
“so plainly anticompetitive that no elaborate study of the industry is needed to establish their
illegality.”  Procaps, 845 F.3d at 1083 (quoting Pro. Eng’rs, 435 U.S. at 692).  The category of
restraints that are per se unlawful is therefore limited to a very small class of antitrust practices,”
including  “horizontal price fixing among competitors, group boycotts, and horizontal market
division—business relationships that, in the courts’ experience, virtually always stifle
competition.”  Tempur-Pedic, 626 F.3d at 1334.  This case does not fit into any of those
categories.
To begin, there is no suggestion of market division.  This is also not a price-fixing
case.  Price-fixing agreements are “agreements among competitors to fix prices on their
individual goods or services.”  Broad. Music, Inc. v. Columbia Broad. Sys., Inc., 441 U.S. 1, 8
(1979).  Plaintiffs provide no evidence of any agreement among horizontal competitors; at best,
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there is an implausible conclusory suggestion of an agreement between financial services
companies that occupy vertical relationships.  (See Section I.)  Further, the alleged agreement at
issue here simply does not match the traditional price-fixing context:  where a group of
competitors conspire to fix the price of a good or service they sell in order to reap
supracompetitive profits (i.e., to make more money than they would in a competitive market by
charging a higher price for their product through an agreement with the companies they should
be competing against).  See, e.g., In re Publ’n Paper Antitrust Litig., 690 F.3d 51, 61 (2d Cir.
2012) (“To prevail on a claim of horizontal price fixing, a plaintiff must demonstrate that the
defendants entered into a conspiracy ‘formed for the purpose and with the effect of raising . . .
price[s].’” (alterations in original) (quoting United States v. Socony-Vacuum Oil Co., 310 U.S.
150, 223 (1940))).  Rather, Plaintiffs allege that the purported conspirators’ actions depressed the
price of the underlying securities.  And, as described above, none of the Introducing and Clearing
Broker Defendants is alleged to have actually bought or sold the Relevant Securities for its own
account or to have profited in any way from this supposed agreement.
Thus, what distinguishes this case from price-fixing cases that have been declared
per se unlawful is that the alleged horizontal competitors (Introducing Broker Defendants)
participate in a different market (broker services) from the market in which the alleged harm was
suffered (the alleged market or markets for the Relevant Securities).  Per se treatment cannot
apply to such an alleged agreement, where Defendants do not profit as market participants from
the alleged scheme.  See, e.g., Broad. Music, 441 U.S. at 10, 23 (refusing to apply per se rule to
alleged price-fixing arrangement where the Court had “never examined a practice like this one
before” and explaining that “[n]ot all arrangements among actual or potential competitors that
have an impact on price are per se violations of the Sherman Act or even unreasonable
restraints.”); Texaco Inc. v. Dagher, 547 U.S. 1, 5 (2006) (noting that the Supreme Court has
“expressed reluctance to adopt per se rules . . . ‘where the economic impact of certain practices is
not immediately obvious’” (alterations in original) (quoting State Oil Co. v. Khan, 522 U.S. 3, 10
(1997))).
Nor is this a per se group boycott case.  A group boycott consists of “pressuring a
party with whom one has a dispute by withholding, or enlisting others to withhold, patronage or
services from the target.”  St. Paul Fire & Marine Ins. Co. v. Barry, 438 U.S. 531, 541 (1978).
The “ultimate target” of the agreement can be either a competitor or “a customer of some or all
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of the [boycotters] who is being denied access to desired goods or services because of a refusal
to accede to particular terms set by some or all of the [boycotters].”  Id. at 543.  Moreover, the
Supreme Court has explained that the “per se approach has generally been limited to cases in
which firms with market power boycott suppliers or customers in order to discourage them from
doing business with a competitor.”  FTC v. Ind. Fed’n of Dentists, 476 U.S. 447, 458 (1986).
There are absolutely no allegations that fit this pattern here; indeed, the CCAC is entirely bereft
of any discussion of market power.  The Supreme Court has twice instructed that the “category
of restraints classified as group boycotts is not to be expanded indiscriminately.”  Id.; see also
Nw. Wholesale Stationers, Inc. v. Pac. Stationery & Printing Co., 472 U.S. 284, 294-95 (1985).
This case does not present a situation that would merit such an indiscriminate expansion.
Thus, while Plaintiffs nod at the concept of either a price-fixing conspiracy or
group boycott at various points (see, e.g., CCAC ¶¶ 86, 197, 304, 495), neither label actually fits
at all, never mind in a way that would sanction application of the per se standard.  See Broad.
Music, 441 U.S. at 8 (“[E]asy labels do not always supply ready answers.”).
C.
Plaintiffs Do Not Even Attempt To Plead a Section 1 Violation Based on the
Rule of Reason.
Since Plaintiffs have not alleged conduct that is a per se violation, their CCAC
can survive only if they could plead sufficiently the elements of a Sherman Act violation under
the rule of reason.  Under this standard, courts are required to “first define the relevant market”
and then “conduct a fact-specific assessment of market power and market structure” to determine
whether a restraint serves as an unreasonable restraint on competition, Am. Express, 138 S. Ct. at
2284 (quotation marks omitted), and to “show that the restraint produced anticompetitive effects
within the relevant product and geographic markets,” In re Se. Milk Antitrust Litig., 739 F.3d
262, 270 (6th Cir. 2014).  Plaintiffs have not satisfied any of these elements.
1.
Plaintiffs Do Not Plead a Cognizable Product Market.
A plaintiff attempting to state a claim under the rule of reason must plausibly
allege a relevant antitrust market.  Tempur-Pedic, 626 F.3d at 1336-39; see also Re-Alco Indus.,
Inc. v. Nat’l Ctr. for Health Educ., Inc., 812 F. Supp. 387, 391 (S.D.N.Y. 1993) (holding that a
court may grant a Rule 12(b)(6) motion if “a complaint fails to allege facts regarding substitute
products, to distinguish among apparently comparable products, or to allege other pertinent facts
relating to cross-elasticity of demand”).  Dismissal is appropriate where the alleged product
market is defined without “reference to the rule of reasonable interchangeability and cross-
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elasticity of demand” or where it “clearly does not encompass all interchangeable substitute
products even when all factual inferences are granted in plaintiff’s favor.”  Chapman v. N.Y.
State Div. for Youth, 546 F.3d 230, 238 (2d Cir. 2008) (quoting Queen City Pizza, Inc. v.
Domino’s Pizza, Inc., 124 F.3d 430, 436 (3d Cir. 1997)); see also TV Commc’ns Network, Inc. v.
Turner Network Television, Inc., 964 F.2d 1022, 1025 (10th Cir. 1992) (affirming dismissal for
failure to plead a relevant market).
Plaintiffs do not actually define the specific contours of any alleged antitrust
market, simply alluding instead to numerous markets, including “the market for securities,”
“[t]he markets for broker dealers, clearing firms, and market making,” “the financial markets”
and “the stock brokerage market with respect to the Relevant Securities[.]”  (See, e.g., CCAC
¶¶ 362, 368, 386, 498.)  On their own, each passing reference fails to allege a cognizable product
market.  And, taken together, these alleged markets vary significantly as to the “practical indicia”
that courts normally use to define a product market, including the “industry or public recognition
of the submarket as a separate economic entity,” “the product’s peculiar characteristics and uses”
and its “distinct customers[.]”  Tempur-Pedic, 626 F.3d at 1337 (quoting Brown Shoe Co. v.
United States, 370 U.S. 294, 325 (1962)).
To the extent Plaintiffs are relying on any particular putative market, it appears to
be the alleged market for each of the Relevant Securities.  But they make no effort to analyze the
viability of such product markets.  Nor could they; the market for securities of a particular
company cannot constitute a cognizable product market because transactions “concerning the
stock of a single company” do not “constitute[] trade or commerce within the meaning of § 1 of
the Sherman Act.”  Kalmanovitz v. G. Heileman Brewing Co., 769 F.2d 152, 156 (3d Cir. 1985)
(declining to extend antitrust liability in a tender offer for securities dispute).  To the extent
Plaintiffs are suggesting that there is an antitrust product market limited to the aggregate group
of the Relevant Securities, this too fails as they make no effort to explain why those securities
(related to companies in disparate industries, such as video game sales, movie theater operations
and cell phone manufacturing) should somehow be lumped into a narrow market to the exclusion
of all other securities.
2.
Plaintiffs Do Not Plead Market Power.
“Market power is the ability to raise price significantly above the competitive
level without losing all of one’s business,” Graphic Prods. Distribs., Inc. v. Itek Corp., 717 F.2d
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1560, 1570 (11th Cir. 1983), and “ordinarily is inferred from the seller’s possession of a
predominant share of the market,”  Eastman Kodak Co. v. Image Technical Services, Inc., 504
U.S. 451, 464 (1992).  Nowhere do Plaintiffs allege that any Defendant possesses market power
in any market.  Indeed, Plaintiffs allege that there were multiple competitors who were not party
to the purported conspiracy and still allowed trading in more of the Relevant Securities.  (CCAC
¶¶ 24-25, 29-30, 34-35.)  In fact, Burke Minahan—a named Plaintiff—alleges that he was able to
circumvent Robinhood’s purported restrictions by applying for an account with Fidelity and
purchasing GME securities through that brokerage.  (Id. ¶¶ 29-30.)
3.
Plaintiffs Fail To Plead Actual Harm to Competition.
Pleading an anticompetitive effect requires Plaintiffs to demonstrate “actual
detrimental effects [on competition] . . . such as reduced output, increased prices, or decreased
quality in the relevant market.”  Am. Express, 138 S. Ct. at 2284.  As discussed in the preceding
section, Plaintiffs do not allege any of these harms on competition over the price of the good or
service in the markets in which any of the Defendants actually compete.  Plaintiffs do not plead
that the alleged conspiracy has led to an increase in prices in the market for retail brokerage
services.  They similarly fail to allege that the purported conspiracy affected competition among
the Introducing or Clearing Brokers—indeed, they fail to allege that the Introducing and Clearing
Brokers compete at all.15  All that Plaintiffs do plead is that the alleged agreement had potential
impact on the trading prices for the Relevant Securities—a purported harm in a purported market
in which none of the Defendants is alleged to compete, because they neither produce the
Relevant Securities, nor are they alleged to buy or sell them for their own account.  Plaintiffs’
failings in this regard are not surprising since this case has nothing to do with competition at
all.16

15 Nor do Plaintiffs allege that any purported injury flowed from competitive harm.  See
Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 488-89 (1977).  Indeed, Plaintiff
Minahan allegedly purchased GME shares through Fidelity on January 28, 2021.  (CCAC ¶ 30.)
16 Even if Plaintiffs could establish that there has been some anticompetitive effect in a relevant
market—and they cannot—their claims of injury are completely speculative.  Specifically, each
Plaintiff could only have been injured if one assumes that he or she (along with the entire
putative class) sold “their shares in the Relevant Securities at a lower price than they otherwise
would have,” in the absence of trading restrictions.”  (CCAC ¶ 501.)  There is no basis for that
speculative assertion that Plaintiffs and the class would have timed the markets perfectly.  Courts
have denied antitrust standing to plaintiffs relying on this sort of speculative damages claim.  See
Austin v. Blue Cross & Blue Shield of Ala., 903 F.2d 1385, 1392-93 (11th Cir. 1990).
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III.
PLAINTIFFS’ ANTITRUST THEORY IS PRECLUDED BY THE FEDERAL
SECURITIES LAWS.
Even if Plaintiffs could plead a cognizable antitrust claim—and they cannot—
federal securities laws would preclude any such claim.  The Securities Exchange Act of 1934
(the “Exchange Act”) extensively regulates all of the conduct Plaintiffs allege in the CCAC.  As
a result, the Supreme Court has held that where securities and antitrust law are “clearly
incompatible,” the securities law implicitly precludes an antitrust claim.  Billing, 551 U.S. at 285.
Such incompatibility is particularly likely where the conduct at issue “lie[s] squarely within an
area of financial market activity that the securities law seeks to regulate,” i.e., “an area of
conduct squarely within the heartland of securities regulations.”  Id. at 264, 285.
Here, Plaintiffs challenge trading restrictions that brokers implemented to comply
with capital requirements or otherwise to address unprecedented volume and volatility (see
Section I.B.1), and allege an underlying agreement for the purpose of manipulating the market
price of certain securities (see CCAC ¶ 495 (alleging that “Defendants conspired and entered into
an anticompetitive scheme to fix, raise, stabilize, maintain or suppress the price of the Relevant
Securities”)).  Regardless of whether one considers the actual reason for the restrictions, which is
plausibly provided by the facts alleged in the CCAC, or the implausible version asserted by
Plaintiffs, the conduct at issue falls squarely within the heartland of federal securities law, and
the regulatory authority of the SEC, which actively regulates electronic broker platforms,
brokers, market makers and clearing agencies.  Federal securities claims have been brought
against certain Defendants on the same set of facts alleged here (see Order on Leadership
Structure, ECF No. 310, at 1-2 (designating a “federal security law claims” tranche)), and
Defendants may not be liable under the antitrust statutes where Plaintiffs’ claims are “securities
complaint[s] in antitrust clothing.”  Billing, 551 U.S. at 284.
A.
Plaintiffs’ Antitrust Claims Are Precluded under Billing Because the
Conduct at Issue Is Regulated by the Federal Securities Laws.
Plaintiffs’ antitrust claims are precluded because the conduct at issue is
“squarely” within the realm of the federal securities laws.  See Billing, 551 U.S. at 285.  In
Billing, the Supreme Court reaffirmed that application of the antitrust laws may be implicitly
precluded by another federal regulatory regime, such as the Exchange Act—even where the
plaintiffs allege an unlawful conspiracy under the Sherman Act.  See id. at 267-68.  The Court
held that “the securities laws [were] clearly incompatible with the application of the antitrust
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laws” in the case.  Id. at 283 (internal quotation marks omitted). In so holding, the court noted
that “the fact that the SEC is . . . required to take account of competitive considerations when it
creates securities-related policy and embodies it in rules and regulations” makes it “somewhat
less necessary to rely upon antitrust actions to address anticompetitive behavior.”  Id.
Specifically, the Court observed that “evidence tending to show unlawful antitrust activity and
evidence tending to show lawful securities marketing activity may overlap, or prove identical,”
and antitrust suits and the “risk of treble damages” could therefore cause market participants to
avoid conduct that “securities law permits or encourages.”  Id. at 281-82.  The Court concluded
that the “threat of antitrust lawsuits, through error and disincentive, could seriously alter . . .
conduct in undesirable ways,” and “to allow an antitrust lawsuit would threaten serious harm to
the efficient functioning of the securities markets.”  Id. at 283.
The Court in Billing identified four factors that determine when the antitrust laws
are implicitly precluded:  (1) whether the action involves “an area of conduct squarely within the
heartland of securities regulations; (2) clear and adequate SEC authority to regulate; (3) active
and ongoing agency regulation; and (4) a serious conflict between the antitrust and regulatory
regimes.”  Id. at 285.  All four factors point strongly in favor of implicit preclusion here.
1.
The Conduct at Issue Lies at the Very Heart of the Securities Market.
The first Billing factor considers whether the alleged practices “lie squarely
within an area of financial market activity that the securities law seeks to regulate.”  Billing, 551
U.S. at 276.  The focus for the first factor is not just on the specific anticompetitive conduct that
is alleged, but rather the “broad underlying market activity.”  Elec. Trading Grp., LLC v. Banc of
Am. Sec. LLC, 588 F.3d 128, 133-34 (2d Cir. 2009) (citing Billing, 551 U.S. at 276).  Here, the
underlying market activities are restrictions on customer trades on electronic broker platforms
and, from Plaintiffs’ perspective, alleged manipulation of market prices for exchange-traded
stocks.  Brokers provide access to the securities exchanges and, without them, investors like
Plaintiffs would be unable to participate in the securities markets.  For this reason, brokers and
dealers must register with the SEC.  Exchange Act § 15, 15 U.S.C. § 78o.  Market integrity for
stock prices is a vital aspect of securities regulation and lies at the core of the securities laws.
Exchange Act §§ 9-10, 15 U.S.C. §§ 78i-78j.  The conduct at issue is “central to the proper
functioning of well-regulated capital markets” and this case “concern[s] practices that lie at the
very heart of the securities” market.  Billing, 551 U.S. at 276.
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2.
The SEC Is Authorized To Regulate All of the Activities Here in
Question.
The second Billing factor considers “the existence of regulatory authority under
the securities law to supervise the activities in question.”  Billing, 551 U.S. at 275.  As in Billing,
“the law grants the SEC authority to supervise all of the activities here in question,” and “the
SEC possesses considerable power to forbid, permit, encourage, discourage, tolerate, limit, and
otherwise regulate virtually every aspect of the practices in which [brokers] engage.”  Id. at 276.
Congress has granted the SEC authority to regulate brokers under Sections 15 and 17 of the
Exchange Act.  See 15 U.S.C. §§ 78o, 78q.  As a result, no broker may transact in securities
unless such broker complies with SEC rules and regulations, Exchange Act § 15(b)(7), 15 U.S.C.
§ 78o(b)(7), and the SEC has specific authority to enact rules and regulations to define acts and
practices by brokers that “are fraudulent, deceptive, or manipulative,” Exchange Act
§ 15(c)(2)(D), 15 U.S.C. § 78o(c)(2)(D).  Similarly, Congress gave the SEC rulemaking
authority to define “any manipulative or deceptive device or contrivance” in connection with the
purchase or sale of exchange-traded securities, Exchange Act § 10(b), 15 U.S.C. § 78i(b), and
made it unlawful:
To effect either alone or with one or more other persons any series
of transactions for the purchase and/or sale of any security . . . for
the purpose of pegging, fixing, or stabilizing the price of such
security in contravention of such rules and regulations as the
Commission may prescribe as necessary or appropriate in the public
interest or for the protection of investors.
Exchange Act § 9(a)(6), 15 U.S.C. § 78i(a)(6).  Therefore, the SEC has ample “regulatory
authority under the securities law to supervise the activities in question.”  Billing, 551 U.S.
at 275; see also Friedman v. Salomon/Smith Barney, Inc., 313 F.3d 796, 803 (2d Cir. 2002)
(holding that “implied immunity bars plaintiffs’ claim” regarding stock price-fixing scheme
based on the SEC’s authority under Section 9(a)(6)).
3.
There Is Substantial Evidence That the SEC Is Exercising Its
Authority.
The third Billing factor considers “evidence that the responsible regulatory
entities exercise [their] authority.”  Billing, 551 U.S. at 275.  Here, there is ample evidence of the
SEC’s exercise of its authority.  Under Section 15(c) of the Exchange Act, the SEC has enacted
extensive regulations covering brokers.  See 17 C.F.R. §§ 240.15c3-1 to -5.  The SEC has also
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implemented a risk assessment program under Section 17 of the Exchange Act that monitors
brokers and requires them to participate in monthly risk assessment meetings with the SEC.  17
C.F.R. §§ 240.17h-1T to -2T.  The SEC has also enacted regulations that specifically address the
conduct of clearing agencies, including the calculation of and requirements for collateral calls.
17 C.F.R. § 240.17Ad-22.  Finally, the SEC has enacted regulations relating to manipulative or
deceptive devices under Section 10(b) of the Exchange Act, 17 C.F.R. § 240.10b-5, and relating
to market manipulation under Section 9(a) of the Exchange Act, Regulation M, 17 C.F.R.
§§ 242.100 to -105.  Notably, neither the Exchange Act nor SEC regulations prohibit all forms of
market manipulation.  See Friedman, 313 F.3d at 803.
Furthermore, the SEC has an enforcement program for violations of its
regulations concerning both brokers and market manipulation:  out of the 405 standalone
enforcement actions brought in 2020, 10% related to broker-dealers and 5% related to market
manipulation.  SEC Division of Enforcement, 2020 Annual Report at 16 (Nov. 2, 2020); see also
SEC Division of Enforcement, 2019 Annual Report at 15 (Nov. 6, 2019) (out of 526 standalone
cases, 7% broker-dealer actions and 6% market manipulation actions); SEC Division of
Enforcement, 2018 Annual Report at 19 (Nov. 2, 2018) (out of 490 standalone cases, 13%
broker-dealer actions and 7% market manipulation actions).17  The ongoing SEC investigation
concerning the January 2021 short squeeze events, alleged in the CCAC, demonstrates that the
SEC is actively exercising its authority to regulate.  (CCAC ¶¶ 490-491.)  See Mayor & City
Council of Balt. v. Citigroup, Inc., Nos. 08-cv-7746 (BSJ), 08-cv-7747 (BSJ), 2010 WL 430771,
at *5 (S.D.N.Y. Jan. 26, 2010) (finding that the SEC had “actively exercised its authority” by
“undertak[ing] an ongoing investigation into the specific events at issue in this case”), aff’d on
other grounds, 709 F.3d 129 (2d Cir. 2013).
4.
Allowing This Claim To Proceed Would Create a Conflict Between
the Antitrust and Securities Laws.
The fourth Billing factor considers whether there is “a resulting risk that the
securities and antitrust laws, if both applicable, would produce conflicting guidance,
requirements, duties, privileges, or standards of conduct.”  Billing, 551 U.S. at 275-76.  In
Billing, the Supreme Court engaged in a practical analysis of the “likely consequences” of
allowing antitrust litigation in heavily regulated areas, including whether evidence put forward to

17 See SEC Division of Enforcement Annual Reports, available at https://www.sec.gov/reports.
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support claims of conspiracy would “overlap” or “prove identical” with evidence showing
agency-permitted conduct.  Id. at 275, 281.  The Court also recognized the potential for conflict
between generalist judges and juries and expert regulators in drawing “a fine, complex, detailed
line separat[ing] activity that the SEC permits or encourages (for which [plaintiffs] must concede
antitrust immunity)” and conduct that it “forbid[s].”  Id. at 279.  In addition, “actual and
immediate” conflict is not required; “potential conflict” is sufficient.  See Elec. Trading Grp.,
588 F.3d at 138 (holding that implied preclusion may be based on potential conflict, for which
“the proper focus is not on the Commission’s current regulatory position but rather on the
Commission’s authority to permit conduct that the antitrust laws would prohibit” (quoting In re
Stock Exchs. Options Trading Antitrust Litig., 317 F.3d 134, 149 (2d Cir. 2003))).
Here, the enforcement of Plaintiffs’ claims would create both an actual and a
potential conflict between the Exchange Act and the Sherman Act if a jury in this MDL action
were to find that conduct that is otherwise lawful under the securities laws is unlawful under the
antitrust laws.  Most acutely, an actual conflict exists because the conduct at issue in this case is
permitted by the SEC.  See Elec. Trading Grp., 588 F.3d at 137 (holding that an “actual conflict
arises [between antitrust liability and the securities regime] because antitrust liability would
inhibit the prime brokers (and other brokers) from engaging in other conduct that the SEC
currently permits”).  The SEC has comprehensive regulations for broker-dealers (including net
capital requirements), see 17 C.F.R. §§ 240.15a-1 to 240.15c6-1, and for clearing agencies
(including collateral call requirements), see id. §§ 240.17Ab2-1 to -2, 240.17Ad-1 to -24.
Indeed, the SEC has explicitly stated that broker-dealers “may reserve the ability to reject or
limit customer transactions,”18 and SEC regulations on market manipulation do not prohibit the
alleged conduct, see id. §§ 242.100 to -105 (Regulation M only applies to activities “in
connection with a distribution of securities”), see also Friedman, 313 F.3d at 803.  In addition to
this actual conflict with SEC regulations, there is the potential for conflict with the SEC’s
enforcement program because the SEC is currently investigating the January 2021 short squeeze
events.  (CCAC ¶¶ 490-491.)  See Billing, 551 U.S. at 273 (explaining that in Gordon v. New
York Stock Exchange, Inc., 422 U.S. 659 (1975), “in light of potential future conflict, the Court
found that the securities law precluded antitrust liability even in respect to a practice that both

18 SEC Statement, supra note 8.
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antitrust law and securities law might forbid”).  The antitrust claims in this case are precluded
because “a fine, complex, detailed line separates that activity the SEC permits or encourages”
from activity it forbids, and that “line-drawing” must be done by the SEC, not by judges and
juries under the rubric of antitrust claims.  Billing, 551 U.S. at 279.
B.
There Is No Applicable Savings Clause.
In Billing, the Supreme Court found that the general savings clauses in the
Exchange Act are not “so broad as to preserve all antitrust actions” and do not prevent implied
preclusion of Sherman Act claims.  551 U.S. at 275.  Instead, the Court found that the “securities
law and antitrust law are clearly incompatible.”  Id. at 279.  Apparently conscious of the implied
preclusion problem, Plaintiffs cite in the CCAC to the antitrust savings clause in the Dodd-Frank
Act.  (CCAC ¶ 405.)  But that savings clause does not apply to Plaintiffs’ claims.
The Dodd-Frank Act includes a provision that “[n]othing in this Act, or any
amendment made by this Act, shall be construed to modify, impair, or supersede the operation of
any of the antitrust laws, unless otherwise specified.”  Pub. L. No. 111-203, § 6, 124 Stat. 1376,
1390 (2010), codified at 12 U.S.C. § 5303.  The “Act” referred to in this savings clause is the
Dodd-Frank Act.  Dodd-Frank Act § 6, 124 Stat. at 1390.  But nothing in the Dodd-Frank Act is
at issue in this case:  its amendments to the Exchange Act relate to security-based swap
agreements.  See Dodd-Frank Act §§ 761-774, 124 Stat. at 1754-1802.19  Accordingly, the Dodd-
Frank Act and its antitrust savings clause do not apply to Section 15 of the Exchange Act at all,
and apply to Sections 9(a) and 10(b) of the Exchange Act only insofar as those sections were
expanded to cover security-based swap agreements.  Plaintiffs’ claims do not, however, relate in
any way to security-based swap agreements.  (See, e.g., CCAC ¶¶ 402-405.)
IV.
INDEPENDENT REASONS EXIST TO DISMISS ALL CLAIMS AGAINST
PEAK6, E*TRADE HOLDINGS AND ROBINHOOD MARKETS.
Plaintiffs name three parent holding companies as Defendants:  Robinhood
Markets, E*TRADE Holdings and PEAK6.  However, claims against all of these entities should
be dismissed because Plaintiffs do not plead any allegations against them.  See Fla. Cement, 746

19 The Dodd-Frank Act did not amend the substance of Section 15(c).  See Dodd-Frank Act
§§ 713(a), 762(d)(4), 766(d), 929L, 975(g), 124 Stat. at 1646, 1761, 1799, 1861, 1923.  Nor did
it amend the substance of 10(b) of the Exchange Act.  See Dodd-Frank Act §§ 762(d)(3), 929L,
124 Stat. at 1761, 1861.  The only amendments the Act made to Section 9(a) were to cover
security-based swap agreements.  See Dodd-Frank Act § 762(d)(2), 124 Stat. at 1760-61.
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F. Supp. 2d at 1324 (holding that parent entity cannot be held liable for subsidiary’s actions
without allegations against parent).
V.
PLAINTIFFS’ CLAIMS SHOULD BE DISMISSED WITH PREJUDICE.
The Court should dismiss Plaintiffs’ CCAC with prejudice.  Plaintiffs have had
months to consider their arguments and legal theories against Defendants since the first
complaints were filed at the end of January 2021.  Unlike the vast majority of plaintiffs at the
pleading stage, Plaintiffs had the opportunity to review tens of thousands of pages of internal
communications and documents regarding the allegations and issues in this case and received a
two-week extension of the deadline to file the Consolidated Complaint (ECF No. 358) so they
could have more time to review and incorporate those documents.  (See ECF No. 335.)
Despite the additional time and discovery Plaintiffs had at their disposal, Plaintiffs
amended their Consolidated Complaint just days before the filing of this Motion—Plaintiffs’
third such attempt at pleading their claims (ECF No. 388)—and they did so without Defendants’
written consent or leave of this Court, in violation of Rule 15(a).  Fed. R. Civ. P 15(a)(2).
Plaintiffs’ August 23, 2021 complaint is incorrectly labeled as a “Corrected Consolidated Class
Action Complaint,” in what appears to be an attempt to hide the substantive change made by
Plaintiffs to the core of their conspiracy allegations.  The redline that Plaintiffs served on
Defendants prior to filing their amended complaint shows that Plaintiffs “corrected” the
complaint to remove the paramount allegation underlying their conspiracy claims against
Robinhood.20  Specifically, Plaintiffs originally claimed that Robinhood Securities made its
decision to impose trading restrictions on the Relevant Securities “a mere 7 minutes” after it had
received its January 28, 2021 NSCC collateral call—what Plaintiffs claimed was “highly
unlikely” absent premeditation pursuant to an alleged conspiracy.  (ECF No. 358 ¶ 475; see also
id. ¶ 233.)  This false allegation stems from claiming that events transpiring at 5:18 a.m. Pacific
Time—evident on the very documents cited by Plaintiffs—occurred in Eastern Time, thereby
collapsing the timeline of events by three hours.  (Id. ¶ 232 (showing time zone adjustment in the
time stamp).)  Plaintiffs’ amended complaint now more accurately describes the time it took for

20 Counsel for the Antitrust Plaintiffs served a redline showing the changes to the “corrected”
Antitrust Tranche complaint on Monday, August 23, 2021 at 2:16 PM EDT, prior to filing the
new complaint later that afternoon.  The changes appear in portions that the Plaintiffs filed with
redactions.  Defendants will provide a copy of the redline with the Court under seal or with
appropriate redactions to protect personally identifiable information upon request.
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Robinhood Securities to deliberate regarding the imposition of trading restrictions as taking more
than three hours—an admission that is fatal to their premeditation claims and that further
undermines their purported conspiracy and premeditation claims.  Plaintiffs also removed
demonstrably false allegations concerning Gabriel Plotkin, CEO of Melvin Capital, and Ken
Griffin, CEO of Citadel LLC.  (Id. ¶ 187.)  Then, the day after filing the instant “corrected”
complaint, Plaintiffs voluntarily dismissed a number of alleged co-conspirators from this
Action—changing the size and make-up of the purported antitrust conspiracy a day after
improperly filing an amended complaint.
Such changes are not simply technical corrections addressing punctuation or verb
tenses—these are substantive amendments pursuant to Rule 15 of the Federal Rules of Civil
Procedure.  See Pressner v. Target Corp., No. 00-cv-6636, 2001 WL 293993 at *3 (N.D. Ill.
Mar. 27, 2001) (striking “plaintiff’s improperly filed corrected amended complaint,” noting that
“plaintiff did not seek or obtain leave of court to file the second amended complaint, as required
by Fed. R. Civ. P. 15(a)”); see also Hoover v. Blue Cross & Blue Shield of Ala., 855 F.2d 1538,
1544 (11th Cir. 1988) (explaining that “if an amendment that cannot be made as of right is
served without obtaining the court’s leave or the opposing party’s consent, it is without legal
effect” (quoting 6 C. Wright & A. Miller, Fed. Prac. & Proc. Civ. § 1485 (1971)) (emphasis in
original)).  Given that Plaintiffs have now had three opportunities to plead their claims, any
further amendment would be futile.  Therefore, Defendants respectfully submit that this Action
should be dismissed with prejudice.
CONCLUSION
For the foregoing reasons, Defendants respectfully submit that the CCAC should
be dismissed for failure to state a claim, with prejudice.
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Dated:  August 30, 2021
/s/ Samuel A. Danon

HUNTON ANDREWS KURTH LLP
Samuel A. Danon (FBN 892671)
Gustavo Javier Membiela (FBN 513555)
María Castellanos Alvarado (FBN 116545)
333 S.E. 2 Avenue, Suite 2400
Miami, FL 33131
Telephone: (305) 810-2500
Facsimile: (305) 810-2460
sdanon@huntonak.com
gmembiela@huntonak.com
mcastellanos@hunton.com

CRAVATH, SWAINE & MOORE LLP
Antony L. Ryan
Kevin J. Orsini
Brittany L. Sukiennik
825 Eighth Avenue
New York, NY 10019
Telephone: (212) 474-1000
Facsimile: (212) 474-3700
aryan@cravath.com
korsini@cravath.com
bsukiennik@cravath.com

Counsel for Defendants Robinhood Financial
LLC, Robinhood Securities, LLC and
Robinhood Markets, Inc.

Case 1:21-md-02989-CMA   Document 408   Entered on FLSD Docket 08/30/2021   Page 49 of 52

/s/ Adam L. Hoeflich (with consent)

QUINN EMANUEL URQUHART & SULLIVAN,
LLP
Christopher D. Kercher
Peter H. Fountain
51 Madison Avenue, 22nd Floor,
New York, New York, 10010
Telephone: (212) 849-7000
Facsimile: (212) 849-7100
christopherkercher@quinnemanuel.com
peterfountain@quinnemanuel.com

QUINN EMANUEL URQUHART & SULLIVAN,
LLP
William A. Burck
1300 I Street NW, Suite 900
Washington, D.C. 20005
Telephone: (202) 538-8000
Facsimile: (202) 538-8100
williamburck@quinnemanuel.com

QUINN EMANUEL URQUHART & SULLIVAN,
LLP
John F. O’Sullivan (FBN 143154)
2601 South Bayshore Drive, Suite 1550
Miami, FL 33133
Telephone: (305) 439-5008
johnosullivan@quinnemanuel.com

BARTLIT BECK LLP
Adam L. Hoeflich
Dawson Robinson
54 W. Hubbard St., Ste. 300
Chicago, IL 60654
Telephone: (312) 494-4400
Facsimile: (312) 494-4440
adam.hoeflich@bartlitbeck.com
dawson.robinson@bartlitbeck.com

Counsel for Defendant Citadel Securities LLC
/s/ Shari Ross Lahlou (with consent)

DECHERT LLP
Shari Ross Lahlou
1900 K Street, NW
Washington, D.C. 20006
Telephone: (202) 261-3300
Facsimile: (202) 261-3333
shari.lahlou@dechert.com

DECHERT LLP
Andrew J. Levander
Three Bryant Park
1095 Avenue of the Americas
New York, NY 10036
Telephone:  (212) 698 3500
Facsimile:  (212) 698 3599
andrew.levander@dechert.com

DECHERT LLP
Steven Bizar
Cira Centre
2929 Arch Street
Philadelphia, PA 19104
Telephone: (215) 994 4000
Facsimile: (215) 994 2222
steven.bizar@dechert.com

Counsel for Defendant Interactive Brokers
LLC
Case 1:21-md-02989-CMA   Document 408   Entered on FLSD Docket 08/30/2021   Page 50 of 52

/s/ Peter W. Homer (with consent)

HOMER BONNER JACOBS ORTIZ, P.A.
Peter W. Homer (Florida Bar No. 291250)
1200 Four Seasons Tower
1441 Brickell Avenue
Miami, Florida 33131
Telephone: (305) 350-5139
Facsimile: (305) 372-2738
phomer@homerbonner.com

DAVIS POLK & WARDWELL LLP
Brian S. Weinstein
Gina Cora
Janet Jones-Duffey
450 Lexington Avenue
New York, New York 10017
Telephone: (212) 450-4000
Facsimile: (212) 701-5972
brian.weinstein@davispolk.com
gina.cora@davispolk.com
janet.jones-duffey@davispolk.com

Counsel for Defendants E*TRADE Securities
LLC and E*TRADE Financial Holdings, LLC
/s/ J. Mark Gidley (with consent)

WHITE & CASE LLP
Jack E. Pace III
Bryan D. Gant
1221 Avenue of the Americas
New York, NY  10020-1095
Telephone: (212) 819-8200
Facsimile: (212) 354-8113
jpace@whitecase.com
bgant@whitecase.com

WHITE & CASE LLP
J. Mark Gidley
701 Thirteenth Street, NW
Washington, DC  20005-3807
Telephone: (202) 626-3600
Facsimile: (202) 639-9355
mgidley@whitecase.com

WHITE & CASE LLP
Angela Daker
Southeast Financial Center
200 South Biscayne Boulevard, Suite 4900
Miami, FL  33131-2352
Telephone: (305) 995-5297
Facsimile: (305) 358-5744
adaker@whitecase.com

Counsel for Defendant Apex Clearing
Corporation, Electronic Transaction Clearing,
Inc. and PEAK6 Investments LLC

Case 1:21-md-02989-CMA   Document 408   Entered on FLSD Docket 08/30/2021   Page 51 of 52

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on August 30, 2021, I electronically filed the
foregoing document with the Clerk of the Court using CM/ECF.  I further certify that the
foregoing document is being served this day on all counsel of record via transmission of Notices
of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel
or parties who are not authorized to receive Notices of Electronic Filing.

Dated:  August 30, 2021
/s/ Samuel A. Danon

Samuel A. Danon (FBN 892671)

Case 1:21-md-02989-CMA   Document 408   Entered on FLSD Docket 08/30/2021   Page 52 of 52

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