Antitrust Plaintiffs' Opposition to Defendants' Motion to Dismiss — In re January 2021 Short Squeeze Trading Litigation (Dkt. 413, S.D. Fla.)

Summary

Antitrust Plaintiffs' Opposition to Defendants' Motion to Dismiss the Complaint in In re: January 2021 Short Squeeze Trading Litigation, Case 1:21-md-02989-CMA (Case No. 21-2989-MDL-ALTONAGA/Torres, Document 413, 49 pages), in the U.S. District Court for the Southern District of Florida, entered September 21, 2021, relating to All Antitrust Actions. Plaintiffs argue that the Corrected Consolidated Class Action Complaint plausibly alleges an agreement, on or about January 27, 2021, to restrict retail investors from purchasing the Relevant Securities in violation of Section 1 of the Sherman Act. The opposition says the complaint alleges the who, what, where and when of the agreement, including the market's susceptibility to collusion and Defendants' motive, opportunity and enforcement of the agreement.

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Date: 2021-09-21

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“Antitrust Plaintiffs' Opposition to Defendants' Motion to Dismiss (Dkt. 413).” Original at archive.org, dated 2021-09-21. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/2021-09-21-am-soc-of-mech-engineers-inc-v-hydrolevel-corp-456-u-s-556-1982-39/, SHA-256 38f5e7541414a56f492de6a3e01b375aa0ecd22ce0b45cd9a79ab92f9a4efed8.

Full text

Case 1:21-md-02989-CMA Document 413 Entered on FLSD Docket 09/21/2021 Page 1 of 49

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

CASE NO. 21-2989-MDL-ALTONAGA/Torres

IN RE:

JANUARY 2021 SHORT SQUEEZE
TRADING LITIGATION
____________________________________/

This Document Relates to:

ALL ANTITRUST ACTIONS

ANTITRUST PLAINTIFFS’ OPPOSITION TO
DEFENDANTS’ MOTION TO DISMISS THE COMPLAINT

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TABLE OF CONTENTS
Page(s)

I. INTRODUCTION .............................................................................................................. 1
II. FACTUAL BACKGROUND ............................................................................................. 2
III. LEGAL STANDARD ......................................................................................................... 3
IV. ARGUMENT ...................................................................................................................... 4
A. Plaintiffs Plead a Plausible Conspiracy in Violation of § 1 of the Sherman Act .... 4

B. Defendants’ Anticompetitive Agreement is Per Se Unlawful............................... 21

C. Plaintiffs’ Allegations Suffice Under the Quick Look Approach.......................... 28

D. Plaintiffs’ Allegations Satisfy the Rule of Reason ................................................ 28

E. Plaintiffs’ Claims Are a Paradigmatic Antitrust Injury ......................................... 31

F. Plaintiffs’ Antitrust Claims Are Not Precluded by Federal Securities Laws ........ 32

G. Peak 6/E*TRADE Holdings/RH Markets cannot be dismissed ........................... 39

V. CONCLUSION ................................................................................................................. 40

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TABLE OF AUTHORITIES
Page(s)

Cases

Am. Soc. of Mech. Engineers, Inc. v. Hydrolevel Corp., 456 U.S. 556 (1982)..............................39

Am. Tobacco Co. v. United States, 328 U.S. 781 (1946) .........................................................11, 15

Anderson News, L.L.C. v. Am. Media, Inc., 680 F.3d 162 (2d Cir. 2012) .....................................10

Anderson News, L.L.C. v. Am. Media, Inc., 899 F.3d 87 (2d Cir. 2018) .........................................9

Anderson v. Shipowners Ass’n of the Pac. Coast, 272 U.S. 359 (1926)........................................24

Apex Oil Co. v. DiMauro, 822 F.2d 246 (2d Cir.) .........................................................................11

Arandell Corp. v. Centerpoint Energy Servs., Inc., 900 F.3d 623 (9th Cir. 2018) ..................39, 40

Arizona v. Maricopa Cnty. Med. Soc’y, 457 U.S. 332 (1982) .......................................................21

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ....................................................................................3, 4, 5

Austin v. Blue Cross & Blue Shield of Ala., 903.F.2d 1385 (11th Cir. 1990) ................................32

Auto. Alignment & Body Serv., Inc. v. State Farm Mut. Auto. Ins. Co., 953 F.3d
707 (11th Cir. 2020) ...................................................................................................................8

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) .................................................................. passim

Beltz Travel Serv., Inc. v. Int'l Air Transp. Ass’n, 620 F.2d 1360 (9th Cir. 1980) ........................15

In re Blue Cross Blue Shield Antitrust Litig., 308 F. Supp. 3d 1241 (N.D. Ala.
2018) ........................................................................................................................................24

Broad. Music, Inc. v. Columbia Broad. Sys., Inc., 441 U.S. 10 (1979) .............................22, 25, 29

Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364 (11th Cir. 1997) ........................4

Brown v. Pro Football, Inc., 518 U.S. 231 (1996) ........................................................................24

Cal. Dental Ass’n v. Fed. Trade Comm’n, 526 U.S. 756 (1999) ...................................................28

Cement Mfrs. Protective Ass’n v. United States, 268 U.S. 588 (1925) ...........................................7

ChoiceParts, LLC v. Gen. Motors Corp., 203 F. Supp. 2d 905 (N.D. Ill. 2002) .....................16, 27

City of Tuscaloosa v. Harcros Chems., 158 F.3d 548 (11th Cir. 1998) ........................8, 11, 13, 14

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Conley v. Gibson, 355 U.S. 41 (1957) .............................................................................................4

Cont’l Ore Co. v. Union Carbide and Carbon Corp., 370 U.S. 690 (1962) ...................................5

Copperweld Corp. v. Indep. Tube Corp., 467 U.S. 752 (1984) .........................................21, 39, 40

In re Credit Default Swaps Antitrust Litig., No. 13md2476 (DLC), 2014 WL
4379112 (S.D.N.Y. Sept. 4, 2014) ...........................................................................................34

Credit Suisse Securities (USA) LLC v. Billing, 551 U.S. 264 (2007) .................................... passim

Dahl v. Bain Capital Partners, LLC, 589 F. Supp. 2d 112 (D. Mass. 2008) .................................37

DeLong Equip. Co. v. Wash. Mills Abrasive Co., 887 F.2d 1499 (11th Cir. 1989).........................5

In re Delta/Airtran Baggage Fee, 245 F. Supp. 3d 1343 (N.D. Ga. 2017) ................................8, 11

In re Delta/AirTran Baggage Late Fee, 733 F. Supp. 2d at 1348 (N.D. Ga. 2017) .........................8

In re Diisocyanates Antitrust Litig., No. 18-1001, 2020 WL 1140244 (W.D. Pa.
Mar. 9, 2020)............................................................................................................................18

In re Disposable Contact Lens Antitrust Litig., 215 F. Supp. 3d 1272 (M.D. Fla.
2016) ................................................................................................................................ passim

Elec. Trading Grp., LLC v. Banc of Am. Sec. LLC, 588 F.3d 128 (2d Cir. 2009) ................. passim

Erickson v. Pardus, 551 U.S. 89 (2007) ..........................................................................................3

ES Dev., Inc. v. RWM Enters., Inc., 939 F.2d 547 (8th Cir. 1991) ................................................33

In re Ethylene Propylene Diene Monomer (EPDM) Antitrust Litig., 681 F. Supp.
2d 141 (D. Conn. 2009) ...........................................................................................................19

Fed. Trade Comm’n v. Ind. Fed’n of Dentists, 476 U.S. 447 (1986) ............................................30

In re Fla. Cement & Concrete Antitrust Litig., 746 F. Supp. 2d 1291 (S.D. Fla.
2010) ..............................................................................................................................9, 10, 39

Fla. Power & Light Co. v. Allis Chalmers Corp., 85 F.3d 1514 (11th Cir. 1996) ........................40

In re Flat Glass Antitrust Litig., 385 F.3d 350 (3d Cir. 2004).....................................11, 12, 15, 16

In re Generic Pharm. Pricing Antitrust Litig., 338 F. Supp. 3d 404 (E.D. Pa.
2018) ............................................................................................................................15, 18, 19

Geneva Pharms. Tech. Corp. v. Barr Labs. Inc., 386 F.3d 485 (2d Cir. 2004) .............................29

Gordon v. N.Y. Stock Exch., Inc., 422 U.S. 659 (1975) .................................................................34

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California ex rel. Harris v. Safeway Inc., 651 F.3d 1118 (9th Cir. 2011) (en banc) .....................28

In re High Fructose Corn Syrup Antitrust Litig., 295 F.3d 651 (7th Cir. 2002) .......................8, 19

In re High-Tech Emp. Antitrust Litig., 856 F. Supp. 2d 1103 (N.D. Cal. 2012) ...........................21

Hosp. Bldg. Co. v. Trustees of Rex Hosp., 425 U.S. 738 (1976) .....................................................4

Image Tech. Servs. v. Eastman Kodak Co., 125 F3d 1195 (9th Cir. 1997) ...................................30

In re Ins. Brokerage Antitrust Litig., 618 F.3d 300 (3d Cir. 2010)..................................................6

In re Interest Rate Swaps Antitrust Litig., 261 F. Supp. 3d 430 (S.D.N.Y. 2017).........................34

Interstate Cir. v. United States, 306 U.S. 208 (1939) ..............................................................14, 26

Jack Walters & Sons Corp. v. Morton Bldg., Inc., 737 F.2d 698 (7th Cir. 1984) ...........................7

Jackson v. Wal-Mart Stores, Inc., 753 F. App’x 866 (11th Cir. 2018) ............................................4

Jacobs v. Tempur-Pedic Int’l, Inc., 626 F.3d 1327 (11th Cir. 2010) .......................................23, 31

Jennings v. BIC Corp., 181 F.3d 1250 (11th Cir. 1999) ................................................................40

Jones v. Micron Tech. Inc., 400 F. Supp. 3d 897 (N.D. Cal. 2019).................................................8

Kotteakos v. United States, 328 U.S. 750 (1946)...........................................................................26

Leegin v. Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877 (2007) ................................23

Lenox MacLaren Surgical Corp. v. Medtronic, Inc., 847 F.3d 1221 (10th Cir.
2017) ..................................................................................................................................39, 40

Levine v. Cent. Fla. Med. Affiliates, Inc., 72 F.3d 1538 (11th Cir. 1996) .....................................25

In re Loc. TV Advert. Antitrust Litig., No. 18 C 6785, 2020 WL 6557665 (N.D. Ill.
Nov. 6, 2020) .............................................................................................................................5

In re LTL Shipping Servs. Antitrust Litig., No. 1:08-MD-01895-WSD, 2009 WL
323219 (N.D. Ga. Jan. 28, 2009) ...............................................................................................8

Mandeville Island Farms, Inc. v. Am. Crystal Sugar Co., 334 U.S. 219 (1948) ...........................24

In re Marine Hose Antitrust Litig., MDL No. 1888, 2009 WL 10692670 (S.D. Fla.
May 26, 2009) ..........................................................................................................................40

Mayor & City Council of Balt., Md. v. Citigroup, Inc., Nos. 08-cv-7746 (BSJ), 08-
cv-7747 (BSJ), 2010 WL 430771 (S.D.N.Y. Jan. 26, 2010) ...................................................37

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In re: McCormick & Co., Inc., 217 F. Supp. 3d 124 (D.D.C. 2016) .............................................16

Merck-Medco Managed Care, LLC v. Rite Aid Corp., No. 98-2847, 1999 WL
691840 (4th Cir. 1999) .............................................................................................................11

Mitchael v. Intracorp, Inc., 179 F.3d 847 (10th Cir. 1999) ...........................................................39

In re Musical Instruments & Equip. Antitrust Litig., 798 F.3d 1186 (9th Cir. 2015) ..........4, 11, 26

N. Jackson Pharm., Inc. v. Express Scripts Inc., 345 F. Supp. 2d 1279 (N.D. Ala.
2004) ..........................................................................................................................................9

N. Pac. Ry. Co. v. United States, 356 U.S. 1 (1958) ................................................................21, 23

In re Nasdaq Mkt-Makers Antitrust Litig., 894 F. Supp. 703 (S.D.N.Y. 1995).........................7, 35

Nat’l Bancard Corp. v. VISA U.S.A., Inc., 779 F.2d 592 (11th Cir. 1986) ....................................29

Nat’l Coll. Ath. Ass’n v. Alston, 141 S.Ct. 2141 (2021) ................................................................28

Nat'l Coll. Ath. Ass'n v. Bd. of Regents of Univ. of Okla., 468 U.S. 85 .........................................31

In re Nat’l Football League’s Sunday Ticket Antitrust Litig., 933 F.3d 1136 (9th
Cir. 2019) .....................................................................................................................22, 23, 32

Nat’l Soc’y of Prof’l Eng’rs v. United States, 435 U.S. 679 (1978) ..............................................23

Newcal Indus., Inc. v. Ikon Off. Sol., 513 F.3d 1038 (9th Cir. 2008) ............................................31

Ohio v. Am. Express Co., 138 S. Ct. 2274 (2018) .......................................................28, 29, 30, 31

Persian Gulf Inc. v. BP W. Coast Prods. LLC, 324 F. Supp. 3d 1142 (S.D. Cal.
2018) ..........................................................................................................................................4

In re Plasma-Derivative Protein Therapies Antitrust Litig., 764 F. Supp. 2d 991
(N.D. Ill. 2011).....................................................................................................................5, 13

Polk Bros. v. Forest City Enters., 776 F.2d 185 (7th Cir. 1985) ...................................................22

Procaps S.A. v. Patheon Inc., 36 F. Supp. 3d 1306 (S.D. Fla. 2014) ......................................22, 29

Procaps S.A. v. Patheon, Inc., 845 F.3d 1072 (11th Cir. 2016) ..............................................23, 25

In re Publication Paper Antitrust Litigation, 690 F.3d 51 (2d Cir. 2012).....................................24

Radovich v. Nat’l Football League, 352 U.S. 445 (1957) .............................................................24

In re Salmon, Case No. 19-21551-CIV-ALTONAGA/Louis, 2021 WL 1109128
(S.D. Fla. Mar. 23, 2021) ................................................................................................. passim

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Schine Chain Theatres, Inc. v. United States, 334 U.S. 110 (1948) ..............................................33

SD3, LLC v. Black & Decker (U.S.) Inc., 801 F.3d 412 (4th Cir. 2015) .........................................1

Seagood Trading Corp. v. Jerrico, Inc., 924 F.2d 1555 (11th Cir. 1991) .......................................5

Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497 (2001) ..................................................2

Spain v. Brown & Williamson Tobacco Corp., 363 F.3d 1183 (11th Cir. 2004).............................4

Spanish Broad. Sys. of Fla., Inc. v. Clear Channel Commc’ns., Inc., 376 F.3d
1065 (11th Cir. 2004) ...............................................................................................................13

Starr v. Sony BMG Music Entm’t, 592 F.3d 314 (2d Cir. 2010) .....................................................5

State Oil v. Khan, 522 U.S. 3 (1997) .............................................................................................23

In re Terazosin Hydrochloride Antitrust Litig., 352 F.Supp.2d 1279 (S.D. Fla.
2005) ........................................................................................................................................22

Texaco Inc. v. Dagher, 547 U.S. 1 (2006) .....................................................................................25

Todd v. Exxon Corp., 275 F.3d 191 (2d Cir. 2001) .................................................................29, 30

Tops Mkts. Inc. v. Quality Mkts. Inc., 142 F.3d 90 (2d Cir. 1998) ................................................29

Toys “R” Us, Inc. v. Fed. Trade Comm’n., 221 F.3d 928 (2000) ...........................................26, 27

United Am. Corp. v. Bitmain, Inc., No. 18-CV-25106, 2021 WL 1807782 (S.D.
Fla. Mar. 31, 2021) ....................................................................................................................5

United States v. Akwuba, 7 F.4th 1299 (11th Cir. 2021) ...........................................................7, 15

United States v. Apple, Inc., 791 F.3d 290 (2d Cir. 2015) .............................................9, 21, 26, 27

United States v. eBay, Inc., 968 F. Supp. 2d 1030 (N.D. Cal. 2013) .............................................21

United States v. Falstaff Brewing Corp., 410 U.S. 526 (1973) .......................................................8

United States v. Gen. Motors Corp., 384 U.S. 127 (1996) ......................................................24, 26

United States v. Socony-Vacuum Oil Co., 310 U.S. 150 (1940) ..............................................25, 32

United States v. Topco Assocs., Inc., 405 U.S. 596 (1972)............................................................21

United States v. Vernon, 723 F.3d 1234 (11th Cir. 2013) ...............................................................7

Universal Express, Inc. v. U.S. Sec. Exchange Comm’n, 177 F. App’x 52 (11th
Cir. 2006) .................................................................................................................................37

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In re Urethane Antitrust Litig., 913 F. Supp. 2d 1145 (D. Kan. 2012)..........................................16

Verizon Commc’ns, Inc. v. Law Offs. of Curtis V. Trinko, LLP, 540 U.S. 398
(2004) .......................................................................................................................................34

West Penn Allegheny Health System, Inc. v. UPMC, 627 F.3d 85 (3d Cir. 2010) ..........................5

White Motor Co. v. United States, 372 U.S. 253 (1963)................................................................29

Williamson Oil Co. v. Philip Morris USA, 346 F.3d 1287 (11th Cir. 2003) .............................9, 10

Statutes

Clayton Act, 15 U.S.C. § 15 ....................................................................................................33, 34

Copyright Act, 17 U.S.C. § 1 .........................................................................................................25

Dodd-Frank Wall Street Reform and Consumer Protection Act, 124 Stat. 1376 .................. passim

Securities Exchange Act, 15 U.S.C. § 78a ............................................................................. passim

Sherman Act, 15 U.S.C. § 3 .....................................................................................................1, 3, 5

Other Authorities

AREEDA & HOVENKAMP, ANTITRUST LAW (2d ed. 2003) ........................................................10, 30

HOVENKAMP, ANTITRUST LAW (2d ed. 2005) ..........................................................................22, 28

AREEDA, ANTITRUST LAW (2d ed. 2007) .......................................................................................21

POSNER, ANTITRUST LAW (2d ed. 2001) ........................................................................................19

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-socialmedia-investor-alert .................................................................................38

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I. INTRODUCTION
Plaintiffs’ Corrected Consolidated Class Action Complaint (the “CCAC”) plausibly alleges
that Defendants entered an agreement, on or about January 27, 2021, to restrict retail investors
from purchasing the Relevant Securities1 in violation of Section 1 of the Sherman Act, 15 U.S.C.
§ 1. While not required, the CCAC goes further by alleging the “who, what, where, and when” of
Defendants’ agreement—it explains how the financial services market is extraordinarily
susceptible to collusion, how Defendants had the motive and opportunity to enter into the
anticompetitive agreement, and how they monitored and enforced their agreement. See SD3, LLC
v. Black & Decker (U.S.) Inc., 801 F.3d 412, 430 (4th Cir. 2015) (“Antitrust complaints . . . that
include detailed fact allegations as to the who, what, when and where of the claimed antitrust
misconduct not surprisingly survive dismissal”) (citations and internal quotation marks omitted).
As Plaintiffs allege, Defendants simultaneously imposed restrictions on their stock trading
platforms leaving retail investors with no option but to sell or hold the Relevant Securities.
Defendants did so to suppress the prices of the Relevant Securities and enable Defendant Citadel
Securities to offload its highly speculative short positions. Plaintiffs allege facts constituting direct
evidence of the agreement—including emails and communications between high level executives
at Robinhood, Apex, E*Trade, and Citadel—where Defendants explicitly agreed to restrict the
purchase of the Relevant Securities. Such direct evidence establishes a per se violation of the
Sherman Act, and the Court need not draw any further inferences. For Rule 12 purposes the inquiry
ends there. Nevertheless, Plaintiffs allege additional circumstantial evidence involving all
Defendants that, when viewed as a whole, plausibly suggest an agreement. These allegations are
more than sufficient at the pleading stage and Defendants’ Motion to Dismiss (ECF No. 408; the
“MTD”) should be denied.
The MTD attacks the CCAC on three grounds. First, Defendants assert that the CCAC fails
to set forth allegations of an anticompetitive agreement. Defendants are incorrect. The CCAC is
replete with facts which when proven at trial will constitute evidence—both direct and
circumstantial—that Defendants entered an anticompetitive agreement to restrict the Relevant

1
The Relevant Securities include the following: GameStop (GME); AMC Entertainment (AMC);
Bed Bath & Beyond (BBY); Blackberry (BB); Express (EXPR); Koss (KOSS); Nokia (NOK);
Tootsie Roll Industries (TR) and Trivago NV (TRVG). ¶ 6. References to paragraph numbers in
this brief denote paragraphs in the CCAC (ECF No. 388) unless otherwise indicated.

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Securities. Second, Defendants claim that the CCAC fails to set forth an antitrust violation either
under the per se rule or the rule of reason. Here too Defendants’ arguments fail. The determination
of whether the per se test applies is premature at the pleading stage. Even so, the CCAC sets forth
a paradigmatic antitrust injury—an agreement to reduce output—that is a per se violation of
Section 1 of the Sherman Act. Even under the rule of reason, the allegations in the CCAC should
be sustained. Lastly, Defendants argue that the securities laws preempt Plaintiffs’ antitrust claims.
Not so. There is no repugnancy between antitrust law and securities law here. Even assuming
arguendo that there were, Congress has already determined that Plaintiffs’ antitrust claims should
move forward by embedding into the Dodd-Frank Act an expansive savings clause applicable to
Plaintiffs’ claims. 12 U.S.C. § 5303 (2012).
In short, Plaintiffs allege an overarching conspiracy and each Defendants’ role in it..
Plaintiffs’ allegations detail when Defendants entered into the alleged agreement, including the
names of key individuals, when the agreements were reached and enforced, and how the
agreements were implemented. While Defendants offer alternative explanations, these questions
are not appropriately resolved at the pleading stage, but rather at a later stage in the litigation.2
Thus, Plaintiffs’ CCAC satisfies Rule 8 and Defendants’ MTD should be denied in its entirety.
II. FACTUAL BACKGROUND
Leading up to January 27, 2021, retail investors, including Plaintiﬀs, had been utilizing
Brokerage Defendants’ platforms to invest in certain stocks (i.e., the Relevant Securities) that,
based on their research and observation, appeared to be undervalued. ¶ 6. As word of these
undervalued stocks began to spread, more and more retail investors purchased the Relevant
Securities causing their share prices to skyrocket. ¶¶ 185, 188-91. Meanwhile, as alleged in the
CCAC, Citadel Securities, as a market maker, acquired massive short positions in the Relevant
Securities by taking the sell side of these transactions. ¶¶ 192, 216. ese short positions exposed
Citadel Securities to inﬁnite losses if the price of the Relevant Securities continued to rise – which

2
Plaintiffs’ dismissal of other entities is not a concession that a conspiracy did not occur. Plaintiffs
voluntarily dismissed those defendants without prejudice. ECF Nos. 319, 380, 396-398, 400-402,
404. Voluntary dismissal without prejudice is not an adjudication on the merits and carries no
weight as to the credibility of Plaintiffs’ claims, particularly the voluntary dismissal of other parties
to the action. See Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 505 (2001) (“Rule
41(a), which, in discussing the effect of voluntary dismissal by the plaintiff, makes clear that an
‘adjudication upon the merits’ is the opposite of a ‘dismissal without prejudice’”).

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is exactly what happened. ¶¶ 157, 406. At the close of market on January 27, 2021, GME’s share
price increased over 130% from the previous day, while shares of AMC rose over 300%. ¶ 190.
Rather than cut their losses, Citadel Securities acquired even larger short positions in the
Relevant Securities after the market closed on January 27, 2021, and did so with the knowledge
that prices of the Relevant Securities would soon fall. ¶¶ 13, 295. In an unprecedented move, on
January 28, 2021, Brokerage Defendants imposed purchasing restrictions on some or all of the
Relevant Securities, which resulted in an immediate and signiﬁcant price depreciation of the once
booming stocks. ¶¶ 14-15, 234, 254, 256-66. As a result of the restrictions, retail investors were
forced to either hold or sell their shares of the Relevant Securities. ¶¶ 16, 235. Plummeting share
prices and loss of investor conﬁdence forced many retail investors, including Plaintiﬀs, to sell their
shares of the Relevant Securities at prices lower than they otherwise would have but for
Defendants’ collusive behavior, thereby sustaining damages. ¶¶ 16, 27, 32, 37, 41, 255.
As alleged in the CCAC, Citadel Securities conspired with the Brokerage Defendants and
the Clearing Defendants to prevent retail investors from purchasing shares of the Relevant
Securities to artiﬁcially suppress share prices so that Citadel Securities could cover its short
positions and mitigate its potential losses. ¶¶ 14-15, 295-361. In support of Plaintiﬀs’ claims that
Defendants conspired to restrain trade in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1,
Plaintiﬀs not only allege direct evidence, but also circumstantial evidence—including numerous
“plus factors” that, when taken together, plausibly demonstrate Defendants’ collusion. ¶¶ 362-440.
III. LEGAL STANDARD
“[A] complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual
allegations[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rule 8(a)(2) requires only a
short and plain statement of a claim for relief to “‘give the defendant fair notice of what
the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007)
(quoting Twombly, 550 U.S. at 555); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“To survive
a motion to dismiss, a complaint must contain suﬃcient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face’”). ere are no “heightened” pleading standards for
antitrust cases. Twombly, 550 U.S. at 570; see also In re Disposable Contact Lens Antitrust Litig.,
215 F. Supp. 3d 1272, 1300 (M.D. Fla. 2016) (“Twombly does not impose a heightened pleading
requirement on antitrust complaints.”).

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Under Rule 12(b)(6) “[w]hen reviewing a motion to dismiss, a court construes the
complaint in the light most favorable to the plaintiﬀ and takes the factual allegations as true.” In
re Salmon, Case No. 19-21551-CIV-ALTONAGA/Louis, 2021 WL 1109128, at *9 (S.D. Fla. Mar.
23, 2021) (citing Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir.
1997)); Jackson v. Wal-Mart Stores, Inc., 753 F. App’x 866, 869 (11th Cir. 2018) (“Iqbal tells us
we must assume the truth of all well-pleaded allegations except legal conclusions, regardless of
whether evidence may ultimately support them.”). “A motion to dismiss is granted only when the
movant demonstrates ‘beyond doubt that the plaintiﬀ can prove no set of facts in support of his
claim which would entitle him to relief.’” Spain v. Brown & Williamson Tobacco Corp., 363 F.3d
1183, 1187 (11th Cir. 2004) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Particularly in
antitrust cases, where “‘the proof is largely in the hands of the alleged conspirators,’ dismissals
prior to giving the plaintiﬀ ample opportunity for discovery should be granted very sparingly.”
Hosp. Bldg. Co. v. Trustees of Rex Hosp., 425 U.S. 738, 746 (1976) (citation omitted).3
IV. ARGUMENT
A. Plaintiﬀs Plead a Plausible Conspiracy in Violation of § 1 of the Sherman Act
To state a claim under Section 1 of the Sherman Act, Plaintiﬀs need not plead “detailed
factual allegations.” Twombly, 550 U.S. at 555. “Proof” of an agreement is not required at the
pleading stage. See Persian Gulf Inc. v. BP W. Coast Prods. LLC, 324 F. Supp. 3d 1142, 1147 (S.D.
Cal. 2018) (“ e issue before the Court is whether Plaintiﬀ pleaded suﬃcient facts to provide a
plausible basis from which to infer ‘an agreement, tacit or express.’”) (citation omitted). e
standard merely “asks for more than a sheer possibility that a defendant has acted unlawfully.”
Iqbal, 556 U.S. at 678 (emphasis added).
An agreement in restraint of trade can be established: (i) by direct evidence showing the
existence of an agreement; (ii) through circumstantial evidence, i.e., a combination of parallel
conduct and “plus factors,” deﬁned as “economic actions and outcomes that are largely
inconsistent with unilateral conduct but largely consistent with explicitly coordinated action[;]” or
(iii) through a combination of direct and circumstantial evidence. In re Musical Instruments &

3
Remarkably, Defendants criticize the sufficiency of the CCAC on the basis that Plaintiffs had
access to some documents. That is not the standard under Rule 8—the CCAC should be judged on
its face, and it is of no moment that Plaintiffs have obtained access to some documents. Further,
Defendants omit that many documents were shared only after the consolidated complaint was
filed.

4
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Equip. Antitrust Litig., 798 F.3d 1186, 1194 (9th Cir. 2015); DeLong Equip. Co. v. Wash. Mills
Abrasive Co., 887 F.2d 1499, 1508 (11th Cir. 1989) (citation omitted).
Plaintiﬀs are not required to allege an explicit agreement or speciﬁc communications
among Defendants. See DeLong, 887 F.3d at 1515. Plaintiﬀs’ claims should be viewed as a whole;
“[t]he character and eﬀect of a conspiracy are not to be judged by dismembering it and viewing its
separate parts, but only by looking at it as a whole.” Cont’l Ore Co. v. Union Carbide and Carbon
Corp., 370 U.S. 690, 699 (1962)) (citation omitted, alteration in original).
Here, Plaintiﬀs allege, with particularity, facts constituting direct and circumstantial
evidence. When viewed together this evidence strongly supports the inference that Defendants
illegally conspired to restrict retail trading in order to proﬁt from their short sale positions in the
Relevant Securities in violation of Section 1 of the Sherman act.4 See 15 U.S.C. § 1.
a. Plaintiﬀs plausibly allege direct evidence of Defendants’ agreement
“Direct evidence of an agreement is explicit and requires no inferences to establish the
proposition or conclusion being asserted.” Salmon, 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)). “If
a complaint includes non-conclusory allegations of direct evidence of an agreement, a court need
go no further on the question whether an agreement has been adequately pled.” W. Penn Allegheny
Health Sys., Inc., 627 F.3d at 99 (reversing dismissal under Twombly). Courts have recognized that
direct evidence in antitrust cases is “rare.” Seagood Trading Corp. v. Jerrico, Inc., 924 F.2d 1555,
1573 (11th Cir. 1991); United Am. Corp. v. Bitmain, Inc., No. 18-CV-25106, 2021 WL 1807782,
at *10 (S.D. Fla. Mar. 31, 2021) (citing DeLong, 887 F.2d at 1515) (“Direct evidence of a § 1
conspiracy is rare, and most antitrust conspiracies are proved by circumstantial evidence.”).

4
Apparently conceding that their arguments fail under the correct “plausibility” standard,
Defendants suggest that the Court apply a “probability” standard—whether the explanations
Defendants offer for the facts alleged are “far more likely” (i.e., more probable) than Plaintiffs’
allegations. MTD at 14. However, the standard at the motion to dismiss stage “does not impose a
probability requirement…; it simply calls for enough facts to raise a reasonable expectation that
discovery will reveal evidence of illegal agreement.” Twombly, 550 U.S. at 556; see also Iqbal,
556 U.S. at 678 (“[t]he plausibility standard is not akin to a ‘probability requirement.’”). In any
event, Defendants’ innocent-sounding post hoc excuses for their conduct are not a basis to grant
their motion to dismiss. In re Plasma-Derivative Protein Therapies Antitrust Litig., 764 F. Supp.
2d 991, 1002 (N.D. Ill. 2011) (rejecting argument that allegations suggesting conspiracy to reduce
output could “be explained as behavior perfectly in line with the firms’ independent self-interest”);
see also Starr v. Sony BMG Music Entm’t, 592 F.3d 314, 325 (2d Cir. 2010).

5
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is is one of those rare cases. Contrary to Defendants’ argument (MTD at 15-16), Plaintiﬀs
plead direct evidence of Defendants unlawful agreement. e CCAC sets forth numerous
instances5 where Defendants openly communicated in furtherance of the conspiracy, including
discussing the nature and scope of the scheme, coordinating and conﬁrming the implementation of
retail trading restrictions, instructing brokerages to further the scheme, eﬀorts to conceal it, and
continuing the scheme after January 28, 2021.
ese communications, which constitute direct evidence of the anticompetitive agreement,
show that Defendants did not restrict trading independently, but rather with advance knowledge
and coordination. For example, Plaintiﬀs allege that high level executives of Citadel Securities and
Robinhood communicated with each other in the days leading up to the trading restrictions and
reached an express agreement on January 25, 2021.6 ¶¶ 296-305, 307-13, 452-53; see In re Ins.
Brokerage Antitrust Litig., 618 F.3d 300, 324 n.23 (3d Cir. 2010) (“a document or conversation
explicitly manifesting the existence of the agreement” is direct evidence of a conspiracy).
Robinhood and Citadel Securities were not the only Defendants to communicate with one other in
furtherance of the conspiracy. High level employees of E*Trade and Citadel Securities also
exchanged communications throughout January 28th to conﬁrm certain orders were cancelled
(¶ 454), while Apex instructed brokerages, including Ally, Dough, Public.com, SoFi, Stash,
Tastyworks and Webull to halt all opening transactions of GME, AMC and KOSS (¶¶ 274-76), and
verbally informed certain brokerages of the same (¶ 341, 443). e CCAC sets forth allegations
relating to all Defendants’ participation in the conspiracy, e.g., the statement of Interactive Brokers’
omas Peterﬀy admitting that Interactive Brokers restricted to “protect ourselves” and ETC
instructed brokers to restrict. ¶¶ 277, 279.
Further, Plaintiﬀs proﬀer direct evidence that Defendants acted in concert. Shortly after
Robinhood decided to move the Relevant Securities to restrict trading, an internal Robinhood

5
Defendants characterize the number of interfirm communications as a “handful.” MTD at 23.
But Plaintiffs have not had the benefit of discovery. And the fact that Plaintiffs have already
identified numerous incriminating interfirm communications suggests that even more inculpatory
communications will surface in discovery. At the motion to dismiss stage, this is sufficient. See
Twombly, 550 U.S. at 556 (plausibility standard “simply calls for enough fact to raise a reasonable
expectation that discovery will reveal evidence of illegal agreement”).
6
The written communications appear deliberately vague and do not describe the contents of what
was agreed to in the communications. Secret communications are hallmarks of antitrust
conspiracies. See Part IV.A.b.ii.4, infra.

6
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communication conﬁrmed that Robinhood was monitoring the conspiracy. Robinhood employees
were discussing that others were doing the same. ¶¶ 242-46. Further, Robinhood decided to impose
purchasing restrictions on the Relevant Securities shortly after the NSCC margin call, indicating
that Robinhood had premeditated its decision prior to the call. ¶¶ 339, 415, 474.
Even after January 28, 2021, Defendants coordinated the continued restrictions on the
Relevant Securities and their homogeneous public statements to explain the events.7 Defendants
took explicit steps in concert to ensure that retail investors could not bypass the trading restrictions.
Although Apex had lifted its trading restrictions by January 29, it policed the conspiracy by
explicitly warning Robinhood of eﬀorts by investors to purchase the Restricted Securities even
though Apex had no business relationship with Robinhood.8 See ¶¶ 327-30. is direct evidence
demonstrates that the coordinated trading restrictions imposed by Defendants were not the result
of happenstance or independent decision-making, but rather a result of illegal collusion.9
b. Circumstantial evidence corroborates direct evidence of an agreement
“Where a conspiracy claim rests on allegations of parallel conduct [by defendants], a
plaintiﬀ must allege suﬃcient ‘plus factors’ to make the parallel conduct ‘more probative of

7
High level employees of Robinhood and Citadel coordinated their messaging after the trading
restrictions were imposed, in order to cast doubt and maintain secrecy over their anticompetitive
scheme. ¶¶ 332-35; 445-57.
8
Defendants say Apex’s communication is “protected,” MTD at 24, n.12, but the case they cite in
support merely says that a communication to prevent fraud is not an unlawful restraint upon
commerce. Cement Mfrs. Protective Ass’n v. United States, 268 U.S. 588, 604 (1925). Here, Apex’s
communication furthered the scheme by policing the illegal agreement. Even if Apex’s
communication by itself was lawful, unlawful antitrust conspiracies are often accomplished
through otherwise lawful means. See Jack Walters & Sons Corp. v. Morton Bldg., Inc., 737 F.2d
698, 709-10 (7th Cir. 1984) (conspiracies are unlawful “if the conspirators used unlawful means
to a lawful end or lawful means to an unlawful end”) (citation omitted, italics added).
9
Defendants criticize Plaintiffs for not alleging communications as to Peak6, ETC and Interactive
Brokers. MTD at 23. Interactive Brokers did not make its first production of documents until
August 24, 2021 and has failed to produce the remaining balance of documents to date. PEAK6
and ETC have not produced any documents. Even so, the CCAC sets forth allegations indicating
their participation in the conspiracy. ¶¶ 108-110, 249, 277-279, 358. See United States v. Akwuba,
7 F.4th 1299, 1307 (11th Cir. 2021) (“‘a defendant can be convicted of conspiracy even if his or
her participation in the scheme is slight by comparison to the actions of other co-conspirators’”)
(quoting United States v. Vernon, 723 F.3d 1234, 1273 (11th Cir. 2013)); see also In re Nasdaq
Mkt-Makers Antitrust Litig., 894 F. Supp. 703, 712 (S.D.N.Y. 1995) (“An overt act need not be
pleaded against each defendant, because a single overt act by just one of the conspirators is enough
to sustain a conspiracy claim”). Given the strength of the CCAC’s allegations, it is highly likely
that more inculpatory communications will be uncovered in discovery.

7
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conspiracy than of conscious parallelism.’” Auto. Alignment & Body Serv., Inc. v. State Farm Mut.
Auto. Ins. Co., 953 F.3d 707, 726 (11th Cir. 2020) (emphasis added, quotation omitted). Plaintiﬀs
have presented ample direct evidence of Defendants’ anticompetitive agreement. As such, the
CCAC is suﬃcient on that basis alone. Even so, Plaintiﬀs have suﬃciently alleged circumstantial
evidence of Defendants’ agreement (i.e., both parallel conduct and suﬃcient plus factors) to push
“their claims across the line from conceivable to plausible.” MTD at 16 (citations omitted).10
i. Defendants’ parallel conduct implies the existence of
coordinated activity and a conspiracy
“Parallel conduct occurs when competitors act similarly or follow the same course of action
—for example, adopting similar policies at or around the same time in response to similar market
conditions.” Jones v. Micron Tech. Inc., 400 F. Supp. 3d 897, 915 (N.D. Cal. 2019) (citations
omitted). Parallel conduct may be found by a simple review of the factual record which reveals
Defendants acting similarly. See, e.g., In re Delta/Airtran Baggage Fee, 245 F. Supp. 3d 1343,
1370–71 (N.D. Ga. 2017) (simultaneous introduction of $15 bag fee); City of Tuscaloosa v.
Harcros Chems., 158 F.3d 548, 572 (11th Cir. 1998) (parallel changes in price based on market
data). “Where a conspiracy claim rests on allegations of parallel conduct [by defendants], a plaintiﬀ
must allege suﬃcient ‘plus factors’ to make the parallel conduct ‘more probative of conspiracy
than of conscious parallelism.’” Auto. Alignment & Body Serv., Inc. v. State Farm Mut. Auto. Ins.
Co., 953 F.3d 707, 726 (11th Cir. 2020) (emphasis added, citation omitted).11

10
The CCAC is replete with circumstantial evidence—both economic and noneconomic—of
conspiracy. See United States v. Falstaff Brewing Corp., 410 U.S. 526, 536 n.13 (1973)
(“circumstantial evidence is the lifeblood of antitrust law.”). Circumstantial evidence is usually of
two types: “economic evidence suggesting that the defendants were not in fact competing, and
noneconomic evidence suggesting that they were not competing because they had agreed not to
compete.” In re High Fructose Corn Syrup Antitrust Litig., 295 F.3d 651, 655 (7th Cir. 2002); see
also Delta/AirTran Baggage Late Fee, 733 F. Supp. 2d at 1360 (N.D. Ga. 2017) (“unlawful
conspiracies may be inferred when collusive communications among competitors precede
changed/responsive business practices”).
11
Eleventh Circuit courts have stressed that, at the pleadings stage, a plaintiff need only make out
a plausible claim, leaving the plus factors analysis for summary judgment. See In re LTL Shipping
Servs. Antitrust Litig., No. 1:08-MD-01895-WSD, 2009 WL 323219, at *10 n.7 (N.D. Ga. Jan. 28,
2009) (explaining that “plus factors” analysis is for summary judgment and that at the motion to
dismiss stage, “[t]he Court is required to accept the plaintiff’s factual allegations as true, and in
the antitrust context to evaluate whether the plaintiff’s allegations raise a reasonable expectation
that discovery will reveal evidence of illegal agreement”); In re Delta/AirTran Baggage Fee, 733
F. Supp. 2d at 1360 n.8 (explaining that summary judgment standard involving “plus factors”

8
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Defendants engaged in virtually identical, highly-correlated and simultaneous (i.e.,
parallel) conduct which, when considered in light of the plus factors outlined below, implies the
existence of the alleged conspiracy. See Twombly, 550 U.S. at 553. Defendants’ argument that
Plaintiﬀs “do not plausibly allege parallel conduct among the defendants” (MTD at 16) is nulliﬁed
by the speciﬁc allegations in the CCAC detailing how on January 28, 2021, the Brokerage
Defendants and the Clearing Defendants coordinated and implemented identical or near-identical
restrictions prohibiting retail investors from purchasing the Relevant Securities less than 24 hours
after Citadel Securities acquired massive short positions in the Relevant Securities.12 ¶¶ 13, 192,
216, 234-55, 267-77, 292-95, 308-09, 350-61. Defendants’ coordinated and highly unprecedented
conduct in restricting the Relevant Securities infers an illicit agreement between Defendants. See
United States v. Apple, Inc., 791 F.3d 290, 315 (2d Cir. 2015) (“Parallel conduct alone may support
an inference of conspiracy, moreover, if it consists of complex and historically unprecedented
changes in pricing structure made at the very same time by multiple competitors, and made for no
other discernible reason.”).
Defendants attempt to proﬀer an alternative explanation as to why Defendants acted in
unison.13 MTD at 16-18. But Defendants misapply the law. “ e question at the pleading stage is

expressed in Williamson Oil “is not applicable at the motion to dismiss stage, where a plaintiff is
only required to allege enough facts to raise a reasonable expectation that discovery will reveal
evidence of an illegal agreement”); N. Jackson Pharm., Inc. v. Express Scripts Inc., 345 F. Supp.
2d 1279, 1285 (N.D. Ala. 2004) (explaining that “plus factors” standards expressed in Monsanto,
Williamson Oil, and Todorov are not applicable at motion to dismiss stage, and “there is no need
for an antitrust plaintiff to allege a ‘plus factor [which] generates an inference of illegal price
fixing’”) (quoting Williamson Oil, 346 F.3d at 1301).
12
Defendants argue that alleged parallel conduct “varied in material ways,” and cannot support
the inference of a conspiracy. MTD at 18-19. This argument also fails. First, the Brokerage
Defendants’ purchasing restrictions did not vary in “material ways.” The wholesale purchasing
restrictions, while not exactly the same, had the same goal and the same effect—artificially
decreasing the price of the Relevant Securities. Second, Defendants’ reliance on Anderson News,
L.L.C. v. Am. Media, Inc., 899 F.3d 87, 105 (2d Cir. 2018) to support this argument is misplaced.
In Anderson News, the appellate court was tasked with reviewing a summary judgment decision;
however, the application before the Court is a motion to dismiss. Accordingly, Anderson News is
not dispositive. See id. at 91.
13
In relying on their “alternative explanation” theory, Defendants misapply the law. MTD at 16-
18. In In re Florida Cement & Concrete Antitrust Litig., this Court stated that “[a]fter 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

9
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not whether there is a plausible alternative to the plaintiﬀ’s theory; the question is whether there
are suﬃcient factual allegations to make the complaint’s claim plausible.” Anderson News, L.L.C.
v. Am. Media, Inc., 680 F.3d 162, 191 (2d Cir. 2012) at 189. Plaintiﬀs’ claims are plausible—and
the CCAC is suﬃcient.14
Defendants further argue that brokerages “not alleged to have been conspirators” also
imposed trading restrictions and that this fact directly refutes the plausibility of Plaintiﬀs’ claims.
MTD at 18. While true that certain brokerages, such as Charles Schwab and TD Ameritrade, placed
restrictions on certain transactions (e.g., increased margin requirements), neither ﬁrm restricted
retail investors from purchasing the Relevant Securities. ¶¶ 198-99. In fact, Charles Schwab and
TD Ameritrade’s restrictions bolster Plaintiﬀs’ claims by demonstrating how Defendants should
have reacted in response to market volatility and volume, if not for the conspiracy.
ii. Plaintiﬀs allege numerous speciﬁc plus factors inferring
conspiracy
Plus factors are “parallel behavior that would probably not result from chance, coincidence,
independent responses to common stimuli, or mere interdependence unaided by an advance
understanding among the parties.” Twombly, 550 U.S. at 557 n.4 (quoting 6 AREEDA &
HOVENKAMP, ANTITRUST LAW ¶ 1425, at 167-85 (2d ed. 2003)). Plus factors “remove . . . evidence
from the realm of equipoise and render that evidence more probative of conspiracy than of
conscious parallelism.” Williamson Oil Co. v. Philip Morris USA, 346 F.3d 1287, 1301 (11th Cir.
2003). “[A]ny showing by [Plaintiﬀs] that ‘tend[s] to exclude the possibility of independent action’
can qualify as a ‘plus factor.’” Id. at 1301 (citation omitted)); id at 1303 (“Evidence that tends to
exclude the possibility of independent action necessarily tends to establish collusion.”); see also

for defendants’ behavior.” 746 F. Supp. 2d 1291, 1308 (S.D. Fla. 2010) (emphasis added). As set
forth directly below, Plaintiffs allege a plethora of plus factors to show that Defendants’ “parallel
conduct is more probative of conspiracy” than of independent conduct. Salmon, 2021 WL
1109128, at *10.
14
Plaintiffs’ claim survives even considering Defendants’ alternative theory. Namely, Defendants
argue that the increased NSCC collateral requirements provide an “obvious alternate explanation”
for the Brokerage Defendants’ parallel trading restrictions. MTD at 17 (citing Twombly, 550 U.S.
at 567). This theory, however, is negated by the fact that 1) Robinhood was able to meet its
increased collateral requirement before the market opened on January 28, 2021 (¶ 340); 2) other
brokerages did not receive increased collateral calls (MTD at 17); and 3) Apex admittedly did not
restrict trading as a result of any increased collateral requirement (¶¶ 341, 480-81).

10
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Delta/Airtran Baggage Fee, 245 F. Supp. 3d at 1371 (“ ere is no ﬁnite list of potential plus
factors.”).
Contrary to Defendants’ assertion (MTD at 20-26), Plaintiﬀs allege a plethora of “plus
factors” demonstrating that Defendants’ “parallel conduct is more probative of conspiracy” than
of independent conduct. Salmon, 2021 WL 1109128, at *10 (citation and quotation marks omitted).
e CCAC is replete with speciﬁc factual allegations—Defendants’ common motive to conspire,
actions against unilateral self-interest, opportunity to coordinate and collude, evidence of
concealment and pretext, and the existence of government investigations—that courts have
identiﬁed as indicative of concerted action and coordinated, not unilateral, conduct. ¶¶ 362-493.
See Merck-Medco Managed Care, LLC v. Rite Aid Corp., No. 98-2847, 1999 WL 691840, at *9
(4th Cir. 1999) (citing City of Tuscaloosa, 158 F.3d at 571 n.35; Apex Oil Co. v. DiMauro, 822 F.2d
246, 253-54 (2d Cir.)) (“While the Supreme Court has not recounted a list of plus factors, numerous
plus factors, such as ‘motive to conspire,’ ‘opportunity to conspire,’ ‘high level of inter-ﬁrm
communications,’ irrational acts or acts contrary to a defendant’s economic interest, but rational if
the alleged agreement existed, and departure from normal business practices, have been considered
by other circuits.”); see also In re Salmon, 2021 WL 1109128, at *14–18 (S.D. Fla. Mar. 23, 2021).
1. Defendants had a common motive to conspire
“Where the circumstances are such as to warrant a jury in ﬁnding that the conspirators had
a unity of purpose . . . the conclusion that a conspiracy is established is justiﬁed.” Am. Tobacco
Co. v. United States, 328 U.S. 781, 810 (1946); see also Salmon, 2021 WL 1109128, at *10 (S.D.
Fla. Mar. 23, 2021) (considering common motive to conspire as a plus factor); In re Flat Glass
Antitrust Litig., 385 F.3d 350, 360 (3d Cir. 2004) (same). Defendants’ argument that Plaintiﬀs’ “fail
to plausibly allege that Defendants had a common motive to conspire” is inaccurate. MTD at 20.
Defendants claim to not have “collective interest in acting in concert to achieve an anticompetitive
end.” Id. (citing Musical Instruments & Equip., 798 F.3d at 1194). But, as alleged in the CCAC,
and as set forth below, Defendants had a collective interest in maintaining their mutually beneﬁcial
business relationships. ¶ 406-19.
Plaintiﬀs allege that Citadel Securities accumulated large short positions in the Relevant
Securities. ¶¶ 285, 295, 406-08. ere was a signiﬁcant increase in dark pool trading activity in the
week beginning January 25, 2021, the bulk of that trading activity is attributable to Citadel
Securities, and short volume reporting is consistent with Citadel taking on a large short position

11
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immediately prior to the trading restrictions. ¶¶ 350-61. As the price of the Relevant Securities
increased, so did Citadel Securities’s short exposure. ¶ 408. As a result, Citadel Securities was
subject to potentially inﬁnite losses if it could not stop the price of the Relevant Securities from
surging. ¶ 406. To stop the price surge and stave oﬀ billions of dollars in losses, Citadel Securities
leveraged its relationships with the Brokerage and Clearing Defendants and reached an agreement
to halt retail investors from purchasing the Relevant Securities. ¶¶ 408-09. Prior to the
implementing this agreement, Citadel Securities entered into new short positions in the Relevant
Securities at peak prices. Once the agreement was in place, Citadel Securities was able to proﬁt
from the orchestrated decrease in share price. Id.
Although the decision to restrict trading in the Relevant Securities is against the Brokerage
and Clearing Defendants’ self-interest (as discussed below at Part IV.A.b.ii.2, infra), each had a
ﬁnancial stake in the conspiracy through their lucrative payment for order ﬂow relationships with
Citadel Securities. For example, Citadel Securities was responsible for 34% of Robinhood’s
revenues in 2020, and in the ﬁrst quarter of 2021 alone, Citadel Securities paid Robinhood over
$141 million for PFOF, a controversial practice ripe for illegal coordination. ¶¶ 135, 283-85. is
relationship was strong, indeed crucial to the business model of Robinhood.15 Robinhood is not
the only Defendant to proﬁt from payment for order ﬂow, nor is Robinhood the only defendant to
direct order ﬂow to Citadel Securities; every Brokerage Defendant, Apex and ETC proﬁt from
selling order ﬂow. ¶¶ 107, 138-40, 416, 418. Based on the foregoing, Defendants’ argument that
the CCAC fails to allege that Citadel Securities “oﬀered any ﬁnancial inducement for the
Introducing Brokers or Clearing Broker Defendants” carries no weight. MTD at 21. e
preservation of Brokerage and Clearing Defendants’ mutually beneﬁcial and highly lucrative
payment for order ﬂow relationships alone provides suﬃcient motive to conspire.
Defendants further contend that Plaintiﬀs “fail to allege any facts to establish that Citadel
Securities held short positions in the Relevant Securities.” MTD at 20. is argument is ﬂawed.
First, while true that it is diﬃcult to ascertain which investor has a short position in any particular
securities at any particular time, the CCAC is rife with facts that support Plaintiﬀs’ allegation that

15
High level executives of Robinhood and Citadel Securities stated the firms had a “strong
relationship” and that they viewed the relationship as a “partnership.” ¶ 412.

12
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Citadel Securities acquired short positions in the Relevant Securities. 16 Second, Defendants’
argument that there is nothing “establishing” that Citadel held short positions in the Relevant
Securities is improper at the pleading stage. is fact is speciﬁcally alleged. e Court must “accept
the factual allegations in the complaint as true and make all reasonable inferences in favor of the
non-moving party.” Spanish Broad. Sys. of Fla., Inc. v. Clear Channel Commc’ns., Inc., 376 F.3d
1065, 1070 (11th Cir. 2004); see also Plasma-Derivative, 764 F. 2d at 1002 n.10 (“[i]f private
[antitrust] plaintiﬀs, who do not have access to inside information, are to pursue violations of the
law, the pleading standard must take into account the fact that a complaint will ordinarily be limited
to allegations pieced together from publicly available data.”)
e CCAC contains publicly available data establishing that short positions increased
leading up to January 28, 2021, and dropped signiﬁcantly thereafter. ¶¶ 342-49. FINRA data shows
notable and signiﬁcant increases in dark pool trading activity for each of the Relevant Securities
on and around January 28, 2021, consistent with institutional investors taking advantage of the
trading restrictions to exit their vulnerable short positions at the expense of retail investors. ¶ 353.
FINRA OTC transparency data further indicates that the bulk of the elevation in dark trading
activity for the week of January 25, 2021 can be attributed to Citadel Securities. ¶¶ 358-61.
Defendants’ concerted activity resulted in lockstep price movements of the Relevant Securities
that can only be explained by concerted actions by Defendants, in particular when considering
retail investors were only permitted to sell positions in the Relevant Securities. ¶¶ 317-18.
Market data supports the inference of a coordinated scheme by Defendants to restrict retail
trading to proﬁt on short positions through large-scale dark pool trading. Where Defendants’
actions or resulting market conditions would be unlikely to occur without collusion—i.e., if the
Defendants were engaging in competition—the jury may infer collusion and that Defendants were
taking actions in order to protect each other. See City of Tuscaloosa, 158 F.3d at 572; Salmon, 2021
WL 1109128, at *14 (considering “market dynamics and conditions”).
2. Defendants’ actions are against unilateral self-interest
Even without evidence of an explicit agreement, the jury can infer an agreement from the
commission of an act that would normally be against a Defendant’s individual self-interest. at

16
Since Citadel paid hundreds of millions of dollars for order flow it was in a unique position to
measure its positions against real time trading information which itself was fulfilling. This
information, especially in the context of millions of fractional share trades, allowed significant
financial gain even in the face of restricting the core function of getting paid by making trades.

13
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is enough to infer that the Defendants participated in the scheme. Interstate Cir. v. United States,
306 U.S. 208, 226-27 (1939); City of Tuscaloosa, 158 F.3d at 572 (“defendants would not have
acted as they did had they not been conspiring in restraint of trade”). “[T]he plaintiﬀ must establish
that each defendant would have acted unreasonably in a business sense if it had engaged in the
challenged conduct unless that defendant had received assurances from the other defendants that
they would take the same action.” City of Tuscaloosa, 158 F.3d at 571 n.33 (citation and quotation
marks omitted).
Defendants argue that Plaintiﬀs “fail to allege any actions taken by Defendants against their
self-interest that are probative of a conspiracy,” because there is no “collective self-interest.” MTD
at 22. is misconstrues the law. e insight underlying this plus factor is that individuals would
ordinarily act in their own self-interest—particularly proﬁt maximizing businesses—and if they
took acts which are contrary to that inference, one can reasonably conclude that the act was not
the product of independent unilateral conduct, but instead, a result of an agreement or
understanding. Disposable Contact Lens, 215 F. Supp. 3d at 1294-97. Moreover, Plaintiﬀs allege
that each defendant took actions against their own self-interest. See ¶¶ 420-40. And Defendants
concede as such. See MTD 22-23 (“such restrictions create a real risk of both immediate and long-
term reputational harm … the restrictions cost each broker revenue––fewer trades mean fewer
payments for order ﬂow (or fewer commissions) for the Clearing and Introducing Brokers
Defendants, and less spread capture for the Market Makers”). Simply put, if a broker were to
unilaterally restrict trading, they would lose investors to other brokers who were not restricting
unless the broker knew others were restricting. Because imposing such restrictions were so against
Defendants’ individual self-interest, any act to restrict trading would be suﬃcient. Here, there were
multiple identical acts against self-interest—the decision to restrict trading—which is not only
highly suggestive, but highly corroborative, of concerted action or agreement.
3. Defendants had ample opportunity to coordinate and
collude
Opportunities to conspire plausibly suggest an antitrust violation because they “facilitated
Defendants’ ability to . . . conspire.” Salmon, 2021 WL 1109128, at *16 & n.27. Defendants argue
that the “CCAC [] lacks suﬃcient allegations of opportunities between Defendants to enter into
the supposed conspiracy and conceal such an agreement.” MTD at 23. is argument is nonsense.
Plaintiﬀs allege numerous opportunities to conspire, and moreover, have documented numerous
conﬁdential inculpatory or suspicious communications. For example, Defendants communicated

14
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on the telephone or through agents, including lawyers. Plaintiﬀs provide ample evidence that
Defendants had numerous opportunities to conspire to restrain trade and did exactly that. ¶ 449.
Defendants had ample opportunity to conspire. e ﬁnancial industry is close-knit and
secretive, replete with specialized jargon and terminology. ¶ 445. Individuals within the industry
frequently move from one company to another and often work closely with competitors. For
example, Robinhood previously used Apex as its clearing ﬁrm (¶¶ 447, 450), and Citadel Securities
has a payment for order ﬂow relationship with the other Defendants (¶¶ 133-40; 306). ese pre-
existing relationships allowed Defendants to communicate swiftly and eﬀectively with one another
to eﬀectuate the conspiracy. ¶ 296.
Not only do Plaintiﬀs allege that Defendants had ample opportunity to coordinate, the
CCAC shows that they did—as described above in Part IV.A.a, supra, the CCAC contains speciﬁc
instances of communications by and between Defendants leading up to, during, and after the
imposition of the January 28, 2021 trading restrictions, which reveal that Defendants were
regularly in contact with one another. ¶¶ 296, 441-57. Evidence of the conspiratorial
communications between the Clearing Defendants and the Brokerage Defendants, as well as
between the Market Maker Defendant and the Brokerage Defendants (see, e.g., ¶¶ 441-57), suﬃces
at the motion to dismiss stage. Salmon, at *10 (“evidence of a high level of interﬁrm
communications” a plus factor). Defendants provide no authority requiring this plus factor to
include evidence of communications between each pertinent entity, as they seem to suggest. MTD
at 23-25. It is hornbook law that “[p]articipation by each conspirator in every detail in the execution
of the conspiracy is unnecessary to establish liability, for each conspirator may be performing
diﬀerent tasks to bring about the desired result.” Beltz Travel Serv., Inc. v. Int'l Air Transp. Ass’n,
620 F.2d 1360, 1367 (9th Cir. 1980) (citing Am. Tobacco, 147 F.2d at 119); see also Akwuba, 7
F.4th at 1307 (conviction for conspiracy proper even if participation is “slight”).17
Defendants attempt to avoid these speciﬁc allegations by complaining that “after reviewing
tens of thousands of pages of discovery,” Plaintiﬀs “point to only a handful of inter-ﬁrm
communications in their complaint.” MTD at 23. is argument is a red-herring. First, the court

17
Defendants’ argument that direct communications are a plus factor is illogical. Direct
communications are direct evidence of participation. If plaintiffs allege direct evidence, the inquiry
ends there—no further examination is required. See In re Generic Pharms. Pricing Antitrust Litig.,
338 F. Supp. 3d 404, 440-41 (E.D. Pa. 2018) (plus factors “‘serve as proxies for direct evidence of
an agreement’”) (quoting In re Flat Glass, 385 F.3d at 360).

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has stayed discovery. e Court has permitted Plaintiﬀs to obtain a limited set of materials which
Defendants had previously produced in response to subpoenas and requests from government
regulators in the aftermath of the events giving rise to this lawsuit. ey were the products of
requests of others and were limited in scope. See ECF No. 323. Plaintiﬀs have not had the beneﬁt
of full discovery; yet have still uncovered numerous inculpatory communications. Second, as
discussed in Part IV.A.b.iii.4, infra, many of the uncovered communications are cryptic in nature
and make arrangements for further substantive discussions through telephone calls, implying that
Defendants eﬀectuated the conspiracy through unrecorded means that would not appear in the
documents produced. ¶ 461. Elusive practices that while not in themselves illegal may still lead to
the inference of the existence of a conspiracy. Salmon, at *10 (S.D. Fla. Mar. 23, 2021) (“evidence
of a high level of interﬁrm communications” a plus factor).
4. Plaintiffs allege evidence of concealment and pretext
Pretextual statements and explanations support an inference of an illegal conspiracy. See
In re: McCormick & Co., Inc., 217 F. Supp. 3d 124, 132 (D.D.C. 2016) (considering pretext as a
plus factor); ChoiceParts, LLC v. Gen. Motors Corp., 203 F. Supp. 2d 905, 910 (N.D. Ill. 2002)
(same). And, “Plaintiﬀs need not rebut [Defendants’ asserted] reasons to defeat a motion to
dismiss.” See Salmon, 2021 WL 1109128, at *15.
e suspicious timing and the cryptic nature of certain of the interﬁrm communications
support the inference of an illegal conspiracy. ¶ 461. For example, days before the trading
restrictions were imposed, high level executives of Robinhood and Citadel communicated and
reached an express agreement. e substance of their agreement was deliberately omitted from
their written communications and further discussions were held via unrecorded means. ¶¶ 297-
303. Additionally, on January 27, 2021—less than 24 hours before the purchasing restrictions were
imposed—an unrecorded telephone conversation transpired between high level employees of
Citadel Securities and Robinhood to presumably discuss PFOF, but the exact substance and nature
of the discussion is unknown. ¶¶ 305-09. Similarly, Apex instructed brokers to restrict trading
“verbally,” i.e., through unrecorded means, ¶ 341; 444. Further, Defendants’ employees attempted
to conceal communications by copying lawyers and explaining they were doing so “for privilege,”
with no indicia of asking for legal advice. ¶ 333, 462. Unrecorded communications between
coconspirators are hallmarks of antitrust conspiracies. See, e.g., In re Flat Glass, 385 F.3d at 364-
65 (conspirators coordinated price increases via phone calls placed in hotel rooms) In re Urethane

16
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Antitrust Litig., 913 F. Supp. 2d 1145, 1155-56 (D. Kan. 2012) (executives used telephones to
contact one another and conducted meetings in oﬀ-site locations where they could speak in
conﬁdence in close proximity to coordinated price increase announcements).
In addition to suspicious communications, Plaintiﬀs’ antitrust claims are bolstered by
pretextual statements that provide evolving, inconsistent and conﬂicting explanations for the
trading restrictions. 18 ¶¶ 459-81. Robinhood initially attributed the trading restrictions to market
volatility, only to later assert that clearinghouse collateral requirements forced Robinhood to
impose said restrictions. ¶¶ 253, 338, 466, 468. However, contrary to its explanations, Robinhood
was in fact able to meet its January 28 clearinghouse collateral requirement a little after 9:00 AM
EST and before the stock markets opened. ¶¶ 340. Yet, Robinhood nonetheless decided to restrict
purchases of the Relevant Securities throughout the entirety of the trading day and continued to
place restrictions on the Relevant Securities up to and including February 4, 2021. ¶¶ 336, 340.
Meanwhile, Robinhood’s Chief Executive Oﬃcer (“CEO”) publicly denied that Robinhood had a
liquidity problem. ¶ 467. is assertion is in stark contrast to an internal message from Robinhood’s
Chief Operating Oﬃcer the same day which revealed that, in fact, Robinhood had “major liquidity
issues.” ¶ 233. Robinhood’s statements were further contradicted by the DTCC.19
Apex also presented conﬂicting explanations as to why it restricted trading. ¶¶ 478-81.
Although Apex cited increased collateral requirements as the reason for the restrictions, Apex later
admitted that it was not subject to any heightened collateral requirements but rather made the
decision to restrict trade based solely on a “potential future” collateral requirement despite having
suﬃcient capital and available lines of credit. ¶¶ 479-81.

18
Statements by government regulators contradict Defendants’ statement that their restrictions
were necessary to comply with government requirements. In statements issued on January 27,
January 29, and thereafter, the SEC never called on Defendants to restrict trading. ¶¶ 200, 337.
SEC’s statements therefore rebut any argument that Defendants implemented their trading
restrictions to comply with any legal requirements. There is no provision under SEC, DTCC,
NSCC, or FINRA rules that allows broker-dealers to unilaterally decline, restrict, or prevent
trading because market conditions make executing trading unprofitable. ¶¶ 432-40.
19
Michael Bodson, the President of DTCC, stated in testimony to the House Financial Services
Subcommittee that the decision to restrict trading was internal to Robinhood and DTCC and NSCC
did not have discussions about restricting securities. ¶ 472.

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5. Multiple government investigations are indicative of
collusion
Government investigations are indicative of anticompetitive collusion. See e.g., In re
Salmon, 2021 WL 1109128, at *17; In re Diisocyanates Antitrust Litig., No. 18-1001, 2020 WL
1140244, at *2 (W.D. Pa. Mar. 9, 2020); In re Generic Pharms. Pricing Antitrust Litig., 338 F.
Supp. 3d 404, 451 (E.D. Pa. 2018). Defendants do not contend otherwise. Rather, Defendants argue
that in the absence of more substantive allegations, government inquiries alone are insuﬃcient to
raise an inference of a conspiracy. MTD at 25 (citations omitted). Such is not the case here. As
alleged in the CCAC, Plaintiﬀs have suﬃciently pleaded both direct and circumstantial evidence,
including speciﬁc plus factors, to support their claims of a conspiracy. Accordingly, this Court may
consider the many investigations (including the issuance of grand jury subpoenas) related to
Defendants’ conduct as indicative of collusion.20
6. Structural characteristics of the securities market
support the existence of an anticompetitive agreement
Defendants concede that courts generally recognize that economic factors and market
characteristics, such as “high market concentration,” “significant barriers to entry” and a
“commoditized product,” “contribute to [a] circumstantial case.” MTD at 26 (citing Salmon
Antitrust Litig., 2021 WL 1109128, at *14). Defendants instead contend that the structural
characteristics of the market here “do[ ] nothing to support Plaintiffs’ claim.” MTD at 26. In so
arguing, Defendants attempt to mislead this Court by asserting that Plaintiffs do not define the
relevant market. MTD at 27. However, the CCAC makes clear that the relevant market to which
Plaintiff refer is the securities market. ¶¶ 362-405. Simply because Defendants may operate in
certain segments of the securities market does not mean that structural characteristics of the market
at large do not apply.
Indeed, the securities market is by its very nature conducive to collusion and
anticompetitive conduct. ¶¶ 362-405. Market characteristics sustaining this allegation include high
barriers to entry, a lack of substitutes, a high degree of consolidation, a market that trades mainly
on price, high ﬁxed and low variable costs, a commoditized product, captive consumers and an

20
The Securities and Exchange Commission (“SEC”), FINRA, Congress, the Department of
Justice, the San Francisco U.S. Attorney’s Office, and the Attorneys General of various states are
investigating the events concerning the January 28, 2021 trading restrictions. See ¶¶ 486-93.

18
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opaque market.21 Id. ese market characteristics indicate collusive activity and concerted action.
See Disposable Contact Lens, 215 F. Supp. 3d at 1295-96.
Defendants do not contest that they operate in a market that requires a large amount of
entry capital, as well as specialized knowledge, both ﬁnancial and technological. See ¶¶ 364-67.
Once an entrant is able to establish itself in the securities market, variable costs are comparatively
low, since it is generally not more expensive to process a large number of trades as it is to process
a single trade. ¶¶ 368-73. In addition, the Relevant Securities are homogenous, meaning one share
of a Relevant Security is identical to another. ¶¶ 374-76. And, while it may seem as though retail
investors could easily jump platforms if they were not able to purchase securities from a certain
broker dealer (i.e., the Brokerage Defendants), the process of opening an account takes time, and
depending on the type of account being opened, may even require a credit check. ¶¶ 377-85.
Indeed, Plaintiﬀs allege that on January 28, 2021, Plaintiﬀs Guzman and Miller, both users of
Robinhood, applied to open accounts at competing brokerages (e.g., Charles Schwab, Fidelity and
TD Ameritrade) because these brokerages did not have purchasing restrictions in place. ¶¶ 23, 25,
33, 35. Despite their best eﬀorts, neither Plaintiﬀ Guzman nor Plaintiﬀ Miller was able to purchase
any of the Relevant Securities on January 28, 2021, due to the amount of time required to open
their respective new accounts.22 ¶¶ 25, 35.
Perhaps the most telling market factor rendering the securities market susceptible to
collusion is the opaqueness of investors’ short positions. ¶¶ 386-405. Investment managers who
control over $100 million in assets are required by the SEC to report their long positions, put

21
Courts, scholars and government agencies have long recognized that market structure and
characteristics can help assess whether anticompetitive collusion has occurred. See, e.g., In re
Ethylene Propylene Diene Monomer (EPDM) Antitrust Litig., 681 F. Supp. 2d 141, 169 (D. Conn.
2009) (“The EPDM market has many characteristic that would make illegal collusion feasible: (1)
EPDM’s commodity-like nature; (2) the lack of economic substitutes; (3) the product’s price
inelastic demand; (4) defendants’ dominance of the highly-concentrated market; (5) the barriers to
market entry; and (6) defendants’ use of national (as opposed to regional) price lists and price
increase announcements”) (citing In re High Fructose Corn Syrup Antitrust Litig., 295 F.3d 651,
656-58 (7th Cir. 2002)); RICHARD A. POSNER, ANTITRUST LAW 69-93 (2d ed. 2001) (setting forth
plus factors including, inter alia, economic factors relating to market structure).
22
Although Plaintiff Minahan was able to apply for and open an account on Fidelity to purchase a
share of GameStop, it was the exception rather than the rule. Indeed, Plaintiff Miller attempted to
apply for and open an account with Fidelity (and other brokers) but was unable to. Additionally,
the trading restrictions led to a significant selloff of the Relevant Securities, depressing the value
of the Relevant Securities that Plaintiff Minahan had purchased before January 28, 2021.

19
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options and call options quarterly via Form 13Fs, but they are not required to disclose their short
positions. ¶¶ 389, 391. Moreover, these reports have a reputation for being riddled with errors,
making any information gleaned from them extremely unreliable. ¶ 390. Although FINRA requires
its member ﬁrms to report their short positions in all equity securities twice a month, FINRA
reporting is likewise ﬂawed in that short interest reports are not published concurrently with
member disclosures and do not capture short intervals of time wherein short positions could have
changed dramatically. ¶¶ 344, 396-98. As a result, and as alleged in the CCAC, it is generally
impossible to ascertain which investors have a short position in a particular security at any point
in time. ¶¶ 343, 387, 399. e foregoing economic market factors paint a picture of a market whose
characteristics make it ripe for collusion in violation of the antitrust law.
7. Defendants’ acts are inconsistent with unilateral conduct
In evaluating a Section 1 claim, courts look to whether the allegations suggest a “preceding
agreement” rather than behavior “that is the result of chance, coincidence, independent responses
to common stimuli, or mere interdependence unaided by an advance understanding among the
parties.” Disposable Contact Lens, 215 F. Supp. 3d at 1289. Plaintiﬀs have pleaded several direct
and concrete factual allegations of behavior by Defendants which suggest a collusive agreement
rather than permissible unilateral conduct.
By way of example and as described more fully supra, Plaintiﬀs allege that internal
communications among Robinhood’s upper echelons of management reﬂect that, in response to
the decision to restrict trading to retail investors on January 28, 2021, Robinhood received direct
information that “all ﬁrms were doing the same thing.” ¶¶ 242-45. Further, as described supra at
Part IV.A.a., Plaintiﬀs allege numerous contacts between Defendants in the days before the trading
restrictions were imposed on January 28, 2021, including many communications on January 27,
2021. Plaintiﬀs also allege that Defendant Apex, a competitor of Robinhood who had no business
relationship with Robinhood at this time, contacted Robinhood on January 29, 2021, to inform
them that retail investors had discovered a loophole to the trading restrictions Robinhood
implemented. After being notiﬁed, Robinhood eliminated this loophole. See ¶¶ 327-31. Plaintiﬀs
also allege an agreement between Robinhood and Citadel, suggested by Citadel, to coordinate
messaging and copied their corporate General Counsel on the communication in an attempt to
cloak the communication under the protection of attorney-client privilege. See ¶¶ 332-35. High

20
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levels of interﬁrm communications before coordinated action is inconsistent with unilateral
conduct and consistent with collusion. See Apple, 791 F.3d at 315.
B. Defendants’ Anticompetitive Agreement is Per Se Unlawful
Whether per se rule or rule of reason applies in this action is not ripe for consideration on
a Rule 12(b)(6) motion. Arizona v. Maricopa Cnty. Med. Soc’y, 457 U.S. 332, 343 (1982); In re
High-Tech Emp. Antitrust Litig., 856 F. Supp. 2d 1103, 1115 n.16, 1122 (N.D. Cal. 2012) (“the
Court need not decide now whether per se or rule of reason analysis applies. Indeed, that decision
is more appropriate on a motion for summary judgment.”). Whether Plaintiffs’ claims should be
analyzed under a standard other than the per se rule should not be resolved at the pleading stage.
United States v. eBay, Inc., 968 F. Supp. 2d 1030, 1038-39 (N.D. Cal. 2013). Such a determination
would require adjudication of disputed facts, such as Defendants’ purported justifications for the
trade restrictions, and requires a more fully developed record. PHILLIP E. AREEDA ET AL.,
ANTITRUST LAW, ¶ 305e at 69 (3d ed. 2007) (“Areeda”) (“Often, however, the decision about
which rule is to be employed will await facts that are developed only in discovery”).
Defendants erroneously argue that the Court should employ a rule of reason analysis
instead of treating the agreements between horizontal competitors as per se violations of the
antitrust law. Defendants’ argument is incorrect. It is premature for the Court to determine whether
the per se or the rule of reason test applies at the motion to dismiss stage. Even if the Court chooses
to make such a determination, Plaintiffs have sufficiently alleged facts giving rise to application
of the per se rule.
a. Per se treatment is appropriate here because Plaintiﬀs allege a
horizontal agreement between the Defendants
As alleged, Defendants are horizontal competitors. It is well settled that horizontal
agreements are classic per se antitrust violations. Copperweld Corp. v. Indep. Tube Corp., 467 U.S.
752, 768 (1984) (“Certain agreements, such as horizontal price ﬁxing and market allocation, are
thought so inherently anticompetitive that each is illegal per se without inquiry into the harm it has
actually caused”); United States v. Topco Assocs., Inc., 405 U.S. 596, 608 (1972) (“One of the
classic examples of a per se violation of §1 is an agreement between competitors at the same level
of the market structure to allocate territories in order to minimize competition”); N. Pac. Ry. Co.
v. United States, 356 U.S. 1, 5 (1958) (“Among the practices which the courts have heretofore
deemed to be unlawful in and of themselves are price ﬁxing, division of markets . . . .”) (citation
omitted).

21
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To evaluate whether conduct is properly analyzed under the per se framework, the court
“must inquire into whether the restraint, on its face, is a naked restraint of trade that always or
almost always tends to restrict output, or an ancillary restraint that results in an eﬃciency-
enhancing integration among the parties to the agreement.” Broad. Music, Inc. v. Columbia Broad.
Sys., Inc., 441 U.S. 10, 23 (1979) (hereinafter “BMI”) (citations omitted). A horizontal agreement
is a naked restraint “if it is formed with the objectively intended purpose or likely eﬀect of
increasing price or decreasing marketwide output in the short run, with output measured by
quantity or quality.” In re Terazosin Hydrochloride Antitrust Litig., 352 F.Supp.2d 1279, 1314
(S.D. Fla. 2005) (emphasis added) (citing 11 HERBERT HOVENKAMP, ANTITRUST LAW ¶ 1906a (2d
ed. 2005) (hereinafter “Hovenkamp”). If the agreement presents a “naked restraint of trade with
no purpose except stiﬂing competition,” it qualiﬁes for per se treatment.23 Id.; see also Hovenkamp
¶ 1906a (“Once a restraint is classiﬁed as ‘naked,’ condemnation follows almost as a matter of
course, most often without elaborate inquiry into power or actual eﬀects and with only a several
limited recognition of defenses.”). erefore, any horizontal agreement that involves a naked
restraint on trade receives per se treatment, not just horizontal agreements that involve horizontal
price ﬁxing among competitors, group boycotts, and horizontal market division. See In re Nat’l
Football League’s Sunday Ticket Antitrust Litig., 933 F.3d 1136, 1152 (9th Cir. 2019) (“in general,
horizontal agreements are analyzed under per se rules”) (hereinafter “NFL Sunday Ticket”).
e agreement among Defendants to impose restraints on the market was not formed as a
legitimate business collaboration, but rather was formed with the objective intent to restrict retail
investors’ access to the stock market and prevent the market from operating freely, thereby
decreasing the quality of market output. Defendant’s conduct was therefore a naked restraint on
trade properly evaluated under the per se framework.

23
By contrast, a restraint is ancillary “if its objectively intended purpose or likely effect is lower
prices or increased output as measured by quantity or quality.” See Hovenkamp ¶ 1906a. Ancillary
restraints are those that are “an essential or at least important part of some arrangement that has
potentially redeeming virtues.” Procaps S.A. v. Patheon Inc., 36 F. Supp. 3d 1306, 1327 (S.D. Fla.
2014) (citing Hovenkamp, ¶ 1904, at 251 (1978)). That is, “restraints . . . that are part of a larger
endeavor whose success they promote.” Procaps S.A., 36 F. Supp. 3d at 1327 (citing Polk Bros. v.
Forest City Enters., 776 F.2d 185, 188–89 (7th Cir. 1985)). Additionally, “ancillary” restraints only
escape the per se rule because they are counterbalanced by an otherwise unattainable
procompetitive benefit. Terazosin, 352 F. Supp. 2d at 1318. In any event, as explained in Part IV.D.,
infra, there are no redeeming virtues of the anticompetitive restriction here.

22
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Under Section 1 of the Sherman Act, the per se rule applies to agreements “so plainly
anticompetitive that no elaborate study of the industry is needed to establish their illegality.”
Procaps S.A. v. Patheon, Inc., 845 F.3d 1072, 1083 (11th Cir. 2016) (quoting Nat’l Soc’y of Prof’l
Eng’rs v. United States, 435 U.S. 679, 692 (1978)). Per se illegality “avoids the necessity for an
incredibly complicated and prolonged economic investigation into the entire history of the industry
involved, as well as related industries, in an eﬀort to determine at large whether a particular
restraint has been unreasonable.” N. Pac. Ry. Co., 356 U.S. 5. Agreements that “have such
predictable and pernicious anticompetitive eﬀect, and such limited potential for procompetitive
beneﬁt . . . are deemed unlawful per se.” State Oil v. Khan, 522 U.S. 3, 10 (1997).
Here, Defendants conspired to completely foreclose retail investors from purchasing the
Relevant Securities. is is a textbook restriction on output susceptible to per se treatment. “Under
antitrust law, some restraints of trade, such as horizontal agreements among competitors to ﬁx
prices, restrict output, and divide markets, are generally deemed to be per se unreasonable, and
therefore it is unnecessary to apply the rule of reason in order to determine whether such
agreements violate Section 1.” NFL Sunday Ticket, 933 F.3d at 1150, n.5 (citation omitted).
Defendants’ argument that Plaintiﬀs’ claims do not warrant per se analysis is meritless.
Defendants imply, without stating directly, that the conspiracy as one that was between entities in
“vertical” relationships, making the conspiracy not subject to per se treatment. See MTD at 14-15,
29. is characterization is erroneous, as vertical restraints have been found consisting of
agreements between ﬁrms at diﬀerent levels of distribution. See, e.g., Leegin v. Creative Leather
Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 882-84 (2007) (manufacturer’s refusal to sell goods to its
distributors who resold goods at discounts were vertical arrangements warranting Rule of Reason
analysis); Khan, 522 U.S. 3, 22 (supplier’s agreement restricting dealer’s ability to sell above a
maximum price was a vertical agreement subject to the Rule of Reason); Jacobs v. Tempur-Pedic
Int’l, Inc., 626 F.3d 1327, 1332 (11th Cir. 2010) (manufacturer’s establishment of minimum retail
prices its distributors could charge for products constituted vertical agreements subject to the Rule
of Reason).
e CCAC alleges that Defendants dealt in transactions of the Relevant Securities by:
receiving orders for the Relevant Securities placed by retail investors (Introducing Brokers; Self-
Clearing Brokers); executing, settling, and maintaining orders for the Relevant Securities,
(Independent Clearing Firms; Self-Clearing Brokers); or ﬁlling orders for the Relevant Securities

23
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(Market Makers). ¶¶ 105-24. While these entities may not have played the same role in the process
of executing a transaction upon behalf of the Retail Investors, such a dynamic is not evidence of
“vertical relationships” and therefore, does not preclude per se treatment. e facts alleged do not
describe a vertical relationship where Defendants were at “diﬀerent levels of distribution.”
Plaintiﬀs’ allegations evidence an unlawful horizontal agreement by Defendants engaging
in anticompetitive conduct by restricting markets and limiting transactions which could be placed
in a free and fair market. See United States v. Gen. Motors Corp., 384 U.S. 127, 145 (1996)
(conspiracy involving a car manufacturer, dealers, and dealer associations to prevent other dealers
from selling at a discount constituted a per se violation of the Sherman Act.); cf. In re Blue Cross
Blue Shield Antitrust Litig., 308 F. Supp. 3d 1241, 1259-60 (N.D. Ala. 2018) (explaining that in
the Eleventh Circuit, an antitrust plaintiﬀ’s ability to proceed on a per se theory depends on
whether there was an agreement to commit conduct that the Supreme Court has held to be
unreasonable per se, and not strictly on whether the plaintiﬀ has shown the agreement to have no
plausible procompetitive beneﬁts, that judicial experience has conﬁrmed the agreement is
anticompetitive, and that the agreement has a purely horizontal character.) (internal quotations
omitted) (alterations in original); Disposable Contact Lens, 215 F. Supp. 3d at 1279 (alleged
conspiracy in which contact lenses manufacturer, eye care professionals, trade association, and
wholesaler conspired to maintain price for contact lenses stated a per se violation of the Sherman
Act).
In this regard, Plaintiﬀs suﬃciently allege that Defendants engaged in an anticompetitive
scheme. See ¶¶ 210-78. Plaintiﬀs demonstrate that Brokerage Defendants, Clearing Defendants,
and Market Maker Defendants conspired to restrict Plaintiﬀs and retail investors from purchasing
the Relevant Securities,24 halting the price appreciation for the Relevant Securities, thereby ﬁxing

24
Defendants are wrong to assert they are not subject to the antitrust laws because their concerted
activity lowered prices, rather than raising them. The antitrust law applies equally to buyers and
sellers. The Supreme Court has repeatedly held that the Sherman Act applies with equal force to
anticompetitive conduct by purchasers and horizontal price fixing by sellers. Radovich v. Nat’l
Football League, 352 U.S. 445, 453-54 (1957) (purchasers of labor); Mandeville Island Farms,
Inc. v. Am. Crystal Sugar Co., 334 U.S. 219, 235 (1948) (purchasers of sugar beets); Anderson v.
Shipowners Ass’n of the Pac. Coast, 272 U.S. 359, 364-65 (1926) (purchasers of labor). The Court
has confirmed the governing principle that “antitrust law forbids all agreements among
competitors . . . that unreasonably lessen competition among or between them in virtually any
respect whatsoever.” Brown v. Pro Football, Inc., 518 U.S. 231, 241 (1996). Defendants cite In re

24
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and stabilizing their price at artiﬁcially low levels. ¶¶ 14-16, 210-78.25 ese alleged facts
demonstrate that Defendants’ scheme was “plainly anticompetitive [and] that no elaborate study
of the industry is needed to establish their illegality,” as Plaintiﬀs describe in detail how Brokerage
Defendants and Clearing Defendants agreed to impose restrictions that prevented retail investors
from trading in the Relevant Securities, eliminating their availability to the beneﬁt of the Market
Maker Defendants. See ¶¶ 210-78; ProCaps, 845 F.3d at 1083.
Defendants attempt to avoid per se treatment by contending that they “participate in a
diﬀerent market.” MTD at 29. is contention is incorrect and conﬂicts with the allegations of the
CCAC.26 e CCAC alleges that retail investors purchased the Relevant Securities based on
independent research, putting institutional investors in a distressed short position because of their
existing positions in the securities. e fact that the retail investors, as opposed to the Brokerage
Defendants, made the purchases of the Relevant Securities does not preclude per se treatment.27
e Court should reject this misguided attempt to remove Plaintiﬀs’ claims from per se treatment.

Publication Paper Antitrust Litigation, 690 F.3d 51, 61 (2d Cir. 2012), which in turn quotes United
States v. Socony-Vacuum Oil Co., 310 U.S. 150, 222 (1940), to suggest that an antitrust plaintiff
must demonstrate that defendants entered into a conspiracy to raise prices. Defendants improperly
omit the full quotation from Socony-Vacuum Oil, which states, “[a]n agreement to pay or charge
rigid, uniform prices would be an illegal agreement under the Sherman Act. But so would
agreements to raise or lower prices whatever machinery for price-fixing was used.” Id. at 222
(emphasis added). In other words, it is the agreement to fix or stabilize prices through market
manipulation, not the direction of the manipulation that matters for purposes of determining
whether the per se rule applies. See Levine v. Cent. Fla. Med. Affiliates, Inc., 72 F.3d 1538, 1545-
46 (11th Cir. 1996). Plaintiffs satisfy this standard. ¶¶ 495-507.
25
The purchase prohibition restricting the market also lowered the value of those securities being
held by Plaintiffs in their brokerage accounts. Concomitantly, brokerage customers who used
margin or traded options were further financially impacted.
26
The cases Defendants cite lend no support to their position. See Texaco Inc. v. Dagher, 547 U.S.
1, 8 (2006) (declining to apply per se treatment because the Defendants set prices through a joint
venture); BMI, 441 U.S. 1 at 18-21 (blanket licensees consistent with the Copyright Act were not
per se violations because they reduced industry costs).
27
Defendants’ rhetorical flourish that the trading activity and price movements were
unprecedented is not true as professional traders and hedge funds have engaged in short squeeze
plays for decades. The only unique facet here is that retail customers were able to use the Brokerage
Defendants’ platforms to profit in the same way as professional traders. While Defendants are
correct in their assertion that what occurred was unprecedented, they miss the mark on correctly
identifying it—what was unprecedented was the decision by Brokerage Defendants to impose
restrictions upon Retail Investors that restricted only purchasing of the Relevant Securities
and not selling of the same, while permitting institutional investors such as their
coconspirators to continue trading unfettered.

25
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b. Plaintiffs have alleged a hub and spoke conspiracy susceptible to per
se treatment
Assuming arguendo that Citadel Securities is in a vertical, rather than horizontal
relationship with the other Defendants,28 Plaintiﬀs’ claims should nevertheless receive per se
analysis because Plaintiﬀs have also pleaded a hub and spoke conspiracy.29 A traditional hub-and-
spoke conspiracy consists of (1) a hub; (2) spokes, i.e., ﬁrms that deal in the same product and that
enter into vertical agreements with a hub; and (3) an agreement between the ﬁrms. See Musical
Instruments & Equip., 798 F.3d at 1192-93.
A hub-and-spoke conspiracy is subject to per se treatment when the vertical actors serve to
coordinate a horizontal agreement to restrict markets or to ﬁx prices. Apple, 791 F.3d at 323; see
also United States v. Gen. Motors Corp., 384 U.S. 127, 145 (1966); Toys “R” Us, Inc. v. Fed.
Trade Comm’n., 221 F.3d 928, 936 (2000) (Toy retailer acting as “hub” and entering into vertical
agreements with manufacturers to limit supplies of toys to warehouse stores was per se unlawful).
at is the case here.
In In re Disposable Contact Lens Antitrust, the court found a hub-and-spoke agreement
subject to per se treatment. 215 F. Supp. 3d 1272, 1279-1286. Much like the instant action where
Defendants perform diﬀerent functions within the securities’ market, the conspirators in
Disposable Contact Lens (manufacturers, wholesalers, a trade association, and eye care
professionals) performed diﬀerent functions within the contact lens market. e eye care
professionals (ECPs), acting through contact lens wholesaler, entered into vertical agreements with
the manufacturers to implement price restraints for the contact lenses. Applying a hub-and-spoke
analysis, the court analogized the wholesaler and the ECPs as the “hub” that facilitated and assisted
in the enforcement of the vertical agreements (i.e., the agreements between the ECPs and the

28
Robinhood, Apex, ETC, and other Defendants sell order flow to Citadel Securities which could
be construed as a vertical relationship. Because Citadel takes routed orders to settle them, it follows
that Citadel would be on the same horizontal level of distribution as clearing entities such as Apex,
Robinhood Securities (Robinhood’s clearing entity), and other Clearing Defendants. In any event,
the difficulty of classifying Citadel’s level of distribution reinforces Plaintiffs’ position that it is
premature to determine whether the per se rule or rule of reason apply.
29
The first antitrust case against a hub and spoke conspiracy never used the term hub and spoke.
See Interstate Cir. v. United States, 306 U.S. 208 (1939). A later loan fraud conspiracy case used
the metaphor of a hub and spoke of a wheel, while finding that there was no actual “rim” or
horizontal agreement. Kotteakos v. United States, 328 U.S. 750, 756 (1946) (finding that without
horizontal agreements among the rim parties, there may be multiple conspiracies, but not one
unifying conspiracy.

26
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manufacturers); the court also found a horizontal agreement between the manufacturers (the
“spokes”). Id. at 1299.
Plaintiﬀs have suﬃciently pleaded a hub-and-spoke conspiracy akin to the one found in
Disposable Contact Lens. Here, Citadel served as the “hub” that facilitated the trading restrictions
with the Brokerage Defendants (the “spokes”) who agreed to implement them. ¶¶ 282, 296-317,
452-56. Citadel stood to beneﬁt from these restrictions, as the restrictions helped Citadel avoid
substantial losses resulting from their distressed short positions in the Relevant Securities. ¶¶ 406-
11. In furtherance of the conspiracy, Citadel also served as an intermediary for communications
between the Brokerage Defendants, the spokes.
Plaintiﬀs further plead a horizontal agreement between Brokerage and Clearing
Defendants. Following the drastic share price increase of the Relevant Securities, high-level
employees of the Brokerages coordinated trade restrictions. ¶¶ 243-45, 308. Brokerage Defendants
and other non-party brokers announced via social media and other media sources that they were
restricting trades in the Relevant Securities. ¶¶ 247-52. Additionally, Apex informed brokerages to
restrict trading on the Relevant Securities. ¶¶ 443-44, 457. Apex also informed Robinhood when
retail investors attempted to evade Robinhood’s trade restrictions evidencing the horizontal
agreement between the spokes, i.e., the wheel around the spokes. ¶¶ 327-330. e elimination of
competition was organized and facilitated by this hub and spoke arrangement, which successfully
altered the market by artiﬁcially depressing the volume of Relevant Securities’ purchases and
depressing the Relevant Securities’ price. ese allegations are more than suﬃcient to establish an
agreement among the “spokes” of the conspiracy. Apple, 791 F.3d at 314 (Hub and spoke
arrangements “consist of both vertical agreements between the hub and each spoke and a horizontal
agreement among the spokes ‘to adhere to the[hub’s] terms,’ often because the spokes ‘would not
have gone along with [the vertical agreements] except on the understanding that the other [spokes]
were agreeing to the same thing.’”) (citations omitted).
In sum, Plaintiﬀs allege that the hub and spoke conspiracy consisted of (1) Citadel
Securities serving as the hub; (2) the Brokerage Defendants, Apex, and other Clearing Defendants
serving as spokes, implementing the vertical trade restrictions directed by Citadel; and (3) a
resulting horizontal agreement between Clearing and Brokerage ﬁrms to implement, coordinate,
and maintain the restrictions. Taken as a whole, these allegations plead a per se conspiracy. See
Gen. Motors Corp., at 145; Apple, 791 F.3d at 322-23; Toys “R” Us, 221 F.3d at 933.

27
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C. Plaintiﬀs’ Allegations Suﬃce Under the Quick Look Approach
Even if the Court finds that restraint here is not a per se violation (which it is), Plaintiffs’
claims should be evaluated under the “quick look” approach. Under the “quick look” approach the
court inquires whether defendants’ conduct is of the type that, while not per se illegal, appears so
likely to have anticompetitive effects that it is unnecessary for a court to apply the full rule of
reason analysis.30 An alleged restraint, “while not unambiguously in the per se category, may
require no more than cursory examination to establish that their principal or only effect is
anticompetitive.” California ex rel. Harris v. Safeway Inc., 651 F.3d 1118, 1134 (9th Cir. 2011) (en
banc) (quoting Cal. Dental Ass’n v. FTC, 526 U.S. 756, 763 (1999)) (the rule of reason analysis
can be applied “‘in the twinkling on an eye’”). Here, Plaintiffs allege that Defendants entered into
an agreement under which the Brokerage Defendants restricted retail investors from purchasing
shares of the Relevant Securities. The anticompetitive effects of this restraint are apparent. Even
if Defendants’ agreement to foreclose retail investors from purchasing the Relevant Securities is
not per se unlawful, it is unlawful under the “quick look” analysis.
D. Plaintiﬀs’ Allegations Satisfy the Rule of Reason
Were the CCAC to be analyzed under the rule of reason, Plaintiffs’ allegations are sufficient
to allege a claim under Section 1 of the Sherman Act.
Under the rule of reason analysis, a three-step burden shifting approach is employed. See
Nat’l Coll. Ath. Ass’n v. Alston, 141 S.Ct. 2141, 2160 (2021). “These three steps do not represent
a rote checklist, nor may they be employed as an inflexible substitute for careful analysis.” Id. The
plaintiff first must show that the unlawful agreement produces anticompetitive effects. “The
plaintiffs can make this showing directly or indirectly. Direct evidence of anticompetitive effects
would be ‘proof of actual detrimental effects [on competition],’ such as reduced output, increased
prices, or decreased quality in the relevant market.” Ohio v. Am. Express Co., 138 S. Ct. 2274,
2284 (2018) (citations omitted). A plaintiff may establish anticompetitive effects indirectly by

30
See Cal. Dental Ass’n v. Fed. Trade Comm’n, 526 U.S. 756, 770 (1999) (“[A]n observer with
even a rudimentary understanding of economics could conclude that the arrangements in question
would have an anticompetitive effect on customers and markets”); see also Areeda & Hovenkamp,
¶ 1911a (“What [the ‘quick-look’] term is intended to connote is that a certain class of restraints,
while not unambiguously in the per se category, may require no more than cursory examination to
establish that their principal or only effect is anticompetitive.”).

28
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showing that the defendant has “sufficient market power to cause an adverse effect on
competition.” Tops Mkts. Inc. v. Quality Mkts. Inc., 142 F.3d 90, 96 (2d Cir. 1998).
Once the plaintiff establishes anticompetitive effects, the burden shifts to the defendant to
offer evidence of any procompetitive effects of the challenged restraint. See Geneva Pharms. Tech.
Corp. v. Barr Labs. Inc., 386 F.3d 485, 507 (2d Cir. 2004); see also Am. Express, 138 S.Ct. at 2284.
If the defendant can prove procompetitive benefits, then “the burden shifts back to the plaintiff[ ]
to prove that any legitimate competitive benefits offered by defendant[ ] could have been achieved
through less restrictive means.” Geneva Pharms. Tech. Corp., 386 F.3d. at 507 (citation omitted).
At the pleading stage, however, it is typically sufficient that the plaintiff plausibly allege
anticompetitive effects, on which they have the burden. Todd v. Exxon Corp., 275 F.3d 191 at 207
(2d Cir. 2001). And Plaintiffs have done so here.
Contrary to Defendants’ assertion (MTD at 30), Plaintiffs plead facts showing
anticompetitive effects. Had Defendants not restricted short selling through concerted action,
Plaintiffs would have been able to sell their securities at a competitive higher price. This price
effect is a classic anticompetitive effect deriving directly from Defendants’ efforts to prevent the
market from functioning freely and fairly. The effect of the agreement between Defendants was
plainly anticompetitive. Defendants’ near-identical restrictions harmed Plaintiffs, caused massive
sell-offs, and therefore the steep decline of stock prices in the Relevant Securities. See ¶¶ 254-66.
That is sufficient to set forth a prima facie case under the rule of reason. Todd, 275 F.3d at 207. At
the pleadings, the inquiry stops there. Id.
a. ere are no procompetitive justiﬁcations for Defendants’ conduct
Defendants do not provide any procompetitive justifications. They do not plead facts giving
rise to any, nor do they argue that the conduct at issue “increase[d] economic efficiency and
render[ed] markets more, rather than less, competitive.” Procaps S.A., 36 F.Supp.3d 1327 (citing
White Motor Co. v. United States, 372 U.S. 253, 263 (1963)); BMI, 441 U.S. at 20; Nat’l Bancard
Corp. v. VISA U.S.A., Inc., 779 F.2d 592, 500 (11th Cir. 1986). Nor do Defendants argue that the
alleged agreement was ancillary to a legitimate business venture or that there was any efficiency
that could plausibly offset the restraints on trade. Indeed, they fail to argue that the agreement
would have any other purpose but to stifle competition.
Any pro-competitive justiﬁcations for Defendants’ agreement are made implausible by
circumstances around Defendants’ conduct, including the concealment, pretextual explanations

29
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and obfuscation around Defendants’ agreement. See, e.g., ¶¶ 242-46, 253, 475 (Robinhood
pretextually attributed restrictions to market volatility); ¶¶ 332-33 (Citadel and Robinhood
coordinated their public narrative around the Short Squeeze); ¶¶ 339, 476 (Robinhood CEO made
pretextual statements that restrictions were put in place due to NSCC requirements); ¶ 461 (high
level employees of Citadel and Robinhood communicated in a manner to obscure the substance of
communications). What proﬀered justiﬁcations Defendants may oﬀer for their anticompetitive
conduct would not defeat Plaintiﬀs’ claims, even if proven at trial. See MTD at 17, 21.
b. Plaintiﬀs do not need to plead product market and market power
Relying on Ohio v. Am. Express Co., 138 S. Ct. 2274, 2284-85 (2018), Defendants allege
that the rule of reason calls for a two-part analysis in which “courts are required to ‘ﬁrst deﬁne the
relevant market’ and then ‘conduct a fact-speciﬁc assessment of market power and market
structure.’” MTD at 30. As an initial matter, it is premature to assess market deﬁnition or market
power at the motions to dismiss stage. “Because market deﬁnition is a deeply fact-intensive
inquiry, courts hesitate to grant motions to dismiss for failure to plead a relevant product market,”
and that determination is best left for the jury. Todd, 275 F.3d at 199-200; see also Image Tech.
Servs. v. Eastman Kodak Co., 125 F3d 1195, 1203 (9th Cir. 1997) (“what constitutes a relevant
market is a factual determination for the jury.”).
Furthermore, American Express does not stand for the proposition Defendants rely upon it
for. e ﬁrst stem in a rule of reason analysis is actually showing a signiﬁcant anticompetitive
eﬀect. e “fact-speciﬁc assessment of ‘market power and market structure’” simply states a
court’s ultimate role in a rule of reason analysis, a part of which might include determining if
plaintiﬀs have deﬁned a relevant market.31 Id. at 2284 (“ e rule of reason requires courts to
conduct a fact-speciﬁc assessment of market power and market structure . . . to assess the
[restraint]’s actual eﬀect on competition.”)

31
Plaintiffs have laid out anticompetitive effects. That is sufficient. Fed. Trade Comm’n v. Ind.
Fed’n of Dentists, 476 U.S. 447, 460–461 (1986) (“Since the purpose of the inquiries into market
definition and market power is to determine whether an arrangement has the potential for genuine
adverse effects on competition, ‘proof of actual detrimental effects, such as a reduction of output,’
can obviate the need for an inquiry into market power, which is but a ‘surrogate for detrimental
effects.’”) (quoting 7 P. AREEDA, ANTITRUST LAW, ¶ 1511, p. 429 (1986)).

30
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c. e CCAC adequately deﬁnes markets in the Relevant Securities
Because the “parameters of a given market are questions of fact,” Plaintiﬀs must only
“present enough information in their complaint to plausibly suggest the contours of the relevant
geographic and product markets.”32 Jacobs v. Tempur-Pedic Int’l, Inc., 626 F.3d 1327, 1336 (11th
Cir. 2010); see also Newcal Indus., Inc. v. Ikon Oﬀ. Sol., 513 F.3d 1038, 1045 (9th Cir. 2008).
Defendants dispute the facts plaintiﬀs allege. Defendants assert that the only possible
product market alleged is “the market for securities of a particular company” or “an antitrust
product market limited to the aggregate group of the Relevant Securities.” MTD at 31. But this
litigation is about coordinated eﬀorts by institutional players in the securities market to unlawfully
limit access to that market.33 See ¶¶ 1-2. It cannot be disputed that Defendants’ businesses are
integral for retail investors to invest in the Relevant Securities. Further, Defendants can oﬀer no
meaningful response to the argument that by restricting retail investors from purchasing shares in
the Relevant Securities reduced competition. ese facts distinguish American Express where the
Court found that defendant’s actions had not “increased the cost of credit-card transactions above
a competitive level, reduced the number of credit-card transactions, or otherwise stiﬂed
competition in the credit-card market.” Am. Express, 138 S. Ct. at 2287-88.
E. Plaintiﬀs’ Claims Are a Paradigmatic Antitrust Injury
Defendants puzzlingly argue that Plaintiffs’ claims have “nothing to do with competition
at all.” MTD at 2, 32. Their argument is plainly incorrect. “Restrictions on price and output are the
paradigmatic examples of restraints of trade that the Sherman Act was intended to prohibit.” Nat'l
Coll. Ath. Ass'n v. Bd. of Regents of Univ. of Okla., 468 U.S. 85. 107-108 (1984) (footnote omitted).
Defendants foreclosed retail investors’ ability to purchase the Relevant Securities—retail investors
who wanted to purchase the Relevant Securities were not able to as a result of Defendants’

32
Defendants do not challenge the definition of the relevant geographic market.
33
Additionally, “courts should ‘combin[e]’ different products or services into a ‘single market’
when ‘that combination reflects commercial realities.’” Am. Express, 138 S. Ct. at 2285. Here,
although Defendants may play different roles in effectuating the trades of the retail investors that
invest with them, they all ultimately provide a single basic service—the trading of securities. There
is little doubt that an agreement to halt the purchase/execution of trades, much less execution of
trades at best prices, effected the price and value of the underlying stocks.

31
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anticompetitive scheme.34 This is a textbook restriction on output and a classic anticompetitive
harm the antitrust laws were created to address. See NFL Sunday Ticket, 993 F.3d at 1158 (“when
plaintiffs adequately allege that their injury was caused by a conspiracy to violate antitrust laws,
even when the conspiracy involves multiple levels of producers, distributors, and sales, the
plaintiffs sufficiently allege an antitrust injury that can withstand a motion to dismiss”).
F. Plaintiﬀs’ Antitrust Claims Are Not Precluded by Federal Securities Laws
Plaintiffs’ antitrust claims should proceed regardless of the factor analysis set forth in
Credit Suisse Securities (USA) LLC v. Billing, 551 U.S. 264 (2007), because the Dodd-Frank Act’s
Antitrust Savings Clause applies to Plaintiffs’ claims. All of Defendants’ citations to support
preclusion predate Dodd-Frank’s passage into law.
a. Dodd-Frank Act’s Antitrust Savings Clause applies to Plaintiﬀs’ claims
Defendants assert that Plaintiffs’ antitrust claims are precluded by the securities laws. MTC
at 33. This is incorrect. In passing the Dodd-Frank Act, Congress amended the Securities Exchange
Act of 1934 and added provisions regarding, inter alia, short sales, the types of transactions giving
rise to Plaintiffs’ antitrust claims. Further, Congress added an expansive Antitrust Savings Clause
making clear that antitrust claims with respect to the matters addressed in the legislation were not
precluded. Section 6 of the Dodd-Frank Act, 12 U.S.C. § 5303, states that “Nothing 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” (the “Antirust Savings Clause”). Dodd-
Frank’s broad antitrust savings is fatal to Defendants’ preclusion argument.35

34
Plaintiffs and other proposed class members also sold the Relevant Securities at lower prices
than they would have absent Defendants’ scheme. See Socony-Vacuum, 310 U.S. at 844 (agreement
to lower prices illegal under Sherman Act). Defendants appear to challenge Plaintiffs’ antitrust
standing. See MTD at 32, n.16. Defendants argue that Plaintiffs’ claimed injury is too speculative.
But Defendants are wrong. This is not a case like in Austin v. Blue Cross & Blue Shield of Ala.,
903.F.2d 1385 (11th Cir. 1990). There, the claimed injuries were remote because the “allegations
require[d] an evaluation not only of the actions taken by Blue Cross but also an evaluation of the
reaction of the hospitals, who were not joined as co-Defendants, to the price-fixing allegedly
engaged in.” Id. at 1393. Whether Plaintiffs would have had “perfect timing” is irrelevant because
Defendants’ coordinated conduct has created a temporal anchor from which there is no need to
speculate.
35
“In attempting to elaborate on the effect of an antitrust savings clause, it does not create a
different rule, but merely reaffirms the general rule. Moreover, an antitrust savings clause is itself
merely a reinforcement of the well-established principle that, because the antitrust laws are ‘a
comprehensive charter of economic liberty aimed at preserving free and unfettered competition,’

32
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Dodd-Frank implemented broad provisions that directly touch upon issues alleged in the
CCAC. For example, as set forth in the CCAC, Section 929X of Dodd-Frank empowered the SEC
to promulgate rules related to public disclosure of short positions, albeit the SEC has not
promulgated any such rules. Dodd-Frank amended the Exchange Act regarding certain transactions
related to short sales. 1242 Stat. 1870. Dodd-Frank also has specific provisions related to market
making. E.g., 1242 Stat. at 1624, 1632. Defendants’ conduct falls squarely within Dodd-Frank’s
ambit.36
That the statute did not preclude antitrust is confirmed by the legislative history. As
Representative Conyers, the Chairman of the House Judiciary Committee, stated:
The final bill contains a number of provisions to ensure that the
antitrust laws remain fully in effect. . . . First and foremost is the
antitrust savings clause in section 6 of the bill. It is the standard
antitrust savings clause found in other statutes. It applies to the entire
Act, and all amendments made by the Act to other laws.
156 CONG. REC. E1347-01 (2010), 2010 WL 2788137 (“Conyers Remarks”).
Defendants erroneously assert that the Dodd-Frank Act did not amend Section 15 of the
Exchange Act (MTD at 38). Not so. Section 913(g) of the Dodd-Frank act modified “Section 15
of the Securities Exchange Act of 1934 (15 U.S.C. 78o)” by adding additional language that
permits the SEC to promulgate rules regarding fiduciary standards and disclosure requirements for
brokers. See Dodd-Frank Act § 913(g), 124 Stat. at 1828.
Moreover, Dodd-Frank preserved the applicability of the antitrust laws except where
“otherwise specified” and Congress expressly indicated where the antitrust laws were modified by
Dodd-Frank. “Dodd-Frank never mentions the Sherman Act . . . , and it explicitly modifies the
Clayton Act in four provisions, none of which is relevant here. See 12 U.S.C. §§ 1843(k)(6)(B)(iii),
5363(b)(5), 5390(a)(1)(G)(ii), 5390(h)(11). These are the four provisions captured by the ‘unless

there is a strong presumption against their normal operation being superseded by some other
statutory scheme.” (citations and internal quotations marks omitted) 156 CONG. REC. E1347-01
(2010), 2010 WL 2788137.
36
Whether the underlying conduct, here short sales, are permitted under Dodd-Frank is of no
concern for antitrust purposes. See ES Dev., Inc. v. RWM Enters., Inc., 939 F.2d 547, 555 (8th Cir.
1991) (“The present case provides a further example of the antitrust maxim that ‘even an otherwise
lawful device may be used as a weapon in restraint of trade.’”) (quoting Schine Chain Theatres,
Inc. v. United States, 334 U.S. 110, 119 (1948)).

33
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otherwise specified’ exception to the antitrust savings clause.”37 In re Credit Default Swaps
Antitrust Litig., No. 13md2476 (DLC), 2014 WL 4379112, at *16 (S.D.N.Y. Sept. 4, 2014); accord
In re Interest Rate Swaps Antitrust Litig., 261 F. Supp. 3d 430, 497 (S.D.N.Y. 2017) (same). The
legislative history indicates that Congress intended Dodd-Frank to only modify those specific
provisions of the antitrust law. Conyers Remarks, at E1347 (“The phrase ‘unless otherwise
specified’ refers only to those four specific provisions that explicitly modify the operation of those
specified provisions of the antitrust laws in specified ways, and is not a basis for courts to consider
whether any other provision in the bill might be intended as an implicit modification of how the
antitrust laws operate. The savings clause is intended to make clear that it is not.”). The conclusion
is inescapable that Congress intended for the antitrust laws to apply to short sales is clear. See In
re Interest Rate Swaps, 261 F. Supp. 3d at 497 (“As a matter of plain language, the exception to
Dodd-Frank’s clause preserving plaintiffs’ right to bring antitrust claims is not implicated here.”).
Billing is inapposite here. Billing applies “[w]here regulatory statutes are silent with respect
to antitrust.” 551 U.S. 264 at 271 (2007) (emphasis added). Here, however, the statute is not silent.
It addresses the commerce giving rise to Plaintiffs’ claims and, in addition, it provides that the
reach of the antitrust laws with respect to them is preserved. Further, none of the cases Defendants
cite in support of preemption post-date Dodd-Frank. “When Congress has spoken, the Supreme
Court stated, a court is to apply Congress’s command as to the extent, if any, to which antitrust
laws are abrogated.” See In re Interest Rate Swaps, 261 F. Supp. 3d at 496-97 (citing Verizon
Commc’ns, Inc. v. Law Offs. of Curtis V. Trinko, LLP, 540 U.S. 398, 406–07 (2004) (analyzing
the antitrust savings clause of the Telecommunications Act)). As such, the Antirust Savings Clause
applies and Plaintiffs’ claims under the Sherman Act are not precluded.
b. The Billing factors weigh against Preclusion of Plaintiffs’ Claims
Even if Billing applies—and it does not—Plaintiffs’ claims are not precluded by the
Exchange Act. The “repeal of the antitrust laws by implication is not favored and not casually to
be allowed. Only where there is a ‘plain repugnancy between antitrust and regulatory provisions
will repeal be implied.’” Gordon v. N.Y. Stock Exch., Inc., 422 U.S. 659, 682 (1975) (citations
omitted) (emphasis added). Courts should only find the antitrust laws are precluded in narrow
specific circumstances. “Repeal of the antitrust laws is to be regarded as implied only if necessary

37
The specified provisions relate to Hart-Scott-Rodino premerger filing and review under the
Clayton Act.

34
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to make the [] Exchange Act work, and even then only to the minimum extent necessary.”38 Billing,
551 U.S. at 271 (emphasis added) (brackets and citation omitted). In Billing, the Supreme Court
identified four factors to determine whether antitrust claims 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. Here, there is no “clear
repugnancy” between antitrust laws and securities laws. The fact that anticompetitive conduct
occurred with respect to the buying and selling of securities is insufficient to warrant preclusion.
Each of the Billing factors weighs against precluding Plaintiffs’ claims.
c. e underlying conduct at issue is not central to the functioning of well-
regulated capital markets
“To ascertain whether ‘the possible conflict’ between securities law and antitrust law
affects ‘practices that lie squarely within an area of financial market activity that the securities law
seeks to regulate,’ the Supreme Court looked to the broad underlying market activity.” Elec.
Trading Grp., LLC v. Banc of Am. Sec. LLC, 588 F.3d 128, 133 (2d Cir. 2009) (citing Billing, 551
U.S. at 276). In Billing, the Supreme Court considered how the IPO process (the underlying market
activity) was “central to the proper functioning of well-regulated capital markets.” Id. In
concluding that it was, the Supreme Court addressed numerous benefits of the IPO process,
including how it “supports new firms that seek to raise capital,” “helps spread ownership,” and
“directs capital flow.” Id. The Court also noted that many financial experts considered the joint
underwriting activity at issue “essential to the successful marketing of an IPO.” Id. Similarly, in
determining that short selling (the underlying market activity) was an “area of conduct squarely
within the heartland of securities regulations,” the court in Elec. Trading Grp., considered the
“liquidity and pricing benefit created by short sales.” Elec. Trading Grp., 588 F.3d at 133-34
(citation omitted).
Defendants argue that the underlying activity here lies at the very heart of the securities
market because “[m]arket integrity” is “vital” and because brokers must “register with the SEC”
(MTD at 34), but Defendants do not—and—cannot demonstrate how cutting off retail investors’
access to the securities market by restricting trading (let alone doing so in an unlawfully

38
Indeed, the antitrust laws have long been enforced with respect to wrongdoers in the securities
market. See generally, e.g., Nasdaq Mkt-Makers Antitrust Litig., 894 F. Supp. 703 (S.D.N.Y. 1995).

35
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coordinated fashion) is “central to the proper functioning of well-regulated markets.” Billing, 551
U.S. at 276. Thus, this factor weighs against implied preclusion.
d. e SEC is not authorized to regulate the activities in question
The second Billing factor considers whether there is “clear and adequate SEC authority” to
regulate the activities in question. 551 U.S. at 285. In ascertaining “‘the existence of regulatory
authority under the securities law to supervise the activities in question . . . the Supreme Court
looked to the role of the [defendants] in the [underlying market activity].’” Elec. Trading Grp.,
588 F.3d at 134 (quoting Billing, 551 U.S. at 275-77).
The SEC does not have authority to supervise “all of the activities in question here,” and
in particular broker-imposed limitations on trading.39 Defendants’ reliance on general regulations
concerning fraudulent practices is insufficient to close that gap. See MTD at 35 (citing Billing, 551
U.S. at 276). To argue otherwise is entirely misleading. In Billing, the Supreme Court first looked
to whether the SEC possessed the power to supervise the activity in question. Billing, 551 U.S. at
276-77. In finding that it did, the Supreme Court cited to specific regulatory statutes governing the
underwriter-defendants’ acts during the IPO process (the underlying market activity), including
book-building, solicitations of indications of interest, and communications between underwriting
participants and their customers. Billing, 551 U.S. at 276-77 (citing 15 U.S.C. §§ 77(b)(a)(3), 77j,
77z-2). Only after the Supreme Court found that SEC regulated the activity in question did it look
to buttress the conclusion. See MTD at 35 (citing 15 U.S.C. § 78o(c)(2) and 15 U.S.C. § 78i(b)).40
e. e SEC is not exercising its authority over the conduct at issue
e third Billing factor considers “evidence that the responsible regulatory entities exercise
[their] authority.” Billing, 551 U.S. at 275. ere is no such evidence. Defendants instead refer to
a handful of SEC regulations (MTD at 35-36). But these regulations, which are more appropriately
analyzed under the second Billing factor, provide no evidence that the SEC has been investigating
or regulating the conduct at issue here (i.e., the coordinated broker-imposed restrictions by
Defendants to prevent retail investors from purchasing the Relevant Securities). e referenced

39
As set forth in the CCAC, there are no provisions under SEC rules that allow brokers to unilateral
restrict access to trading markets. ¶ 432.
40
Defendants’ citation to 15 U.S.C.§ 78o(b)(7) is also misplaced as this statute addresses
registration, training and qualification requirements for brokers, all of which are irrelevant here.
See MTD at 35.

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regulations concern, inter alia, over-the-counter markets rules, record keeping requirements,41
standards for clearing agencies and securities oﬀerings (i.e., IPOs). ese are beside the point and
irrelevant here. See MTD at 35-36; see also 17 C.F.R. §§ 240.15c3-1 to -5; 17 C.F.R. §§ 240.17h-
1T to -2T; Regulation M, 17 C.F.R.§§ 242.100 to -105. As addressed above, Defendants’ reliance
on provisions of the Exchange Act is also misplaced. See MTD at 36.
Defendants’ general reference to SEC enforcement programs (MTD at 36) is of no
moment. ese programs were not created to address the conduct at issue. Defendants have not
been the target of such programs either. Defendants do not contend to the contrary. And, while
true that the SEC is currently investigating the events concerning the market activities of January
28, 2021, there is simply no evidence to suggest that the SEC is investigating the claims of
concerted activity at issue here.42 See Mayor & City Council of Balt., Md. 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”) (emphasis added).
f. ere is no conﬂict between antitrust and securities laws
The fourth Billing factor considers whether there is a “serious conflict between the antitrust
and regulatory regimes,” such that allowing “an antitrust lawsuit would threaten serious harm to
the efficient functioning of the securities market.” Billing, 551 U.S. at 283, 385. A conflict may
occur when there is either an actual conflict or a potential conflict between antitrust law and
securities regulations. Elec. Trading Grp., 588 F.3d at 137-38.
Far from creating sufficient harm, this antitrust lawsuit would create no harm at all.
Defendants cite to no law that would be in conflict with or undermined were Plaintiffs claims to

41
Disclosure-like oversight does not rise to the level of exercise of authority to satisfy the elements
in Billing. See Dahl v. Bain Capital Partners, LLC, 589 F. Supp. 2d 112, 116-17 (D. Mass. 2008)
(“seeing that the SEC only required certain disclosures here, and that it did not substantively
regulate the behavior in question, the second factor is not met.”).
42
SEC Chair Gary Gensler alluded to the SEC’s investigative focus in his Congressional testimony.
Notably, absent from Gensler’s testimony was any refence to Defendants’ alleged conspiratorial
conduct. Virtual Hearing – Game Stopped? Who Wins and Loses When Short Sellers, Social
Media, and Retail Investors Collide, Part III, 117th Cong. (May 6, 2021) (statement of Gary
Gensler, SEC Chairman), available at https://financialservices.house.gov/uploadedfiles/hhrg-117-
ba00-wstate-genslerg-20210506.pdf. The Court may take judicial notice of SEC statement because
it is a public record, the accuracy of which cannot be questioned. See Universal Express, Inc. v.
U.S. Sec. Exchange Comm’n, 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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succeed. In ascertaining whether an actual conflict exists, the court in Elec. Trading Grp. examined
whether “[a]ntitrust liability would inhibit conduct that the SEC permits and that assists the
efficient functioning of the [securities’] market.” Id. at 137. No such concern pertains here. The
assertion that Defendants’ concerted activity is not prohibited in fact proves the reverse, namely
that the conduct is not subject to regulation. Further, there is no showing that such conduct is
permitted, authorized or encouraged by the SEC. Far from it.
To support their argument that an actual conflict exists because the “conduct at issue” is
“permitted by the SEC,” Defendants rely on an excerpted portion of an SEC investor alert, which
when read in full states:
Also, broker-dealers may reserve the ability to reject or limit
customer transactions. This may be done for legal, compliance, or
risk management reasons, and is typically discussed in the customer
account agreement. In certain circumstances, broker-dealers may
determine not to accept orders where a transaction presents certain
associated compliance or legal risks.
See MTD at 37, n.18. Defendants do not explain how these generalized descriptions authorize their
concerted activity. Moreover, the above language “is not a rule, regulation, or statement of the
[SEC],” but rather an “investor bulletin,” that has not been “approved” by the SEC. 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-socialmedia-investor-alert. Such a bulletin, “has no
legal force or effect: it does not alter or amend applicable law, and it creates no new or additional
obligations for any persons.” Id. While this description discusses situations in which rejecting or
limiting customer transactions may be appropriate, it does not say that it is appropriate to do so to
protect short positions of business partners or to do so in furtherance of a conspiracy.43
“In evaluating conflict, [ ] the proper focus is on the alleged anticompetitive conduct.” Elec.
Trading Grp., 588 F.3d at 137. In Billing, the Court addressed the “manner” in which defendants

43
17 C.F.R. §§ 240.15a-1 to 240.15c6-1 govern “Exemption of Certain OTC Derivatives Dealers
(§ 240.15a-1); “Exemption of Certain Securities From Section 15(a) (§§ 240.15a-2 - 240.15a-5)”;
“Registration of Brokers and Dealers (§§ 240.15a-6 - 240.15b11-1)” and “Rules Relating to Over-
the-Counter Markets (§§ 240.15c1-1 - 240.15c6-1)”; 17 C.F.R. §§ 240.17Ab2-1 to -2 relate to
“Registration of clearing agencies” and “Determinations affecting covered clearing agencies”
respectively; §§ 240.17Ad-1 to -24 regulate clearing agencies’ collateral call requirements; and
Regulation M and §§ 242.100 to -105 only apply to distribution of stock as part of the IPO process.
Likewise, these statutes describe permitted practices with respect to certain securities transactions,
but do not concern those at issue here.

38
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effectuated their alleged anticompetitive conduct through practices such as laddering and tying. Id.
(citing Billing, 551 U.S. at 278). In analyzing these practices, the Court determined that in relation
to laddering and tying, only a fine line separated activity that the SEC permitted from that the SEC
disallowed. Billing, 551 U.S. at 279-80. Relying on Billing, the court in Elec. Trading Grp.,
reasoned that “[i]t is a lot to expect a broker ‘to distinguish what is forbidden from what is
allowed,’” such that it would “curb” permittable conduct. 588 F.3d at 137-38. The claims at issue
here do not attack or seek to prohibit short selling generally.
There is no potential conflict either. A potential conflict exists when there is a possibility
that the SEC will act upon its authority to regulate the conduct. Id. at 137. To support their
argument of that a “potential conflict” exists, Defendants refer to the ongoing SEC investigation
addressed under the third Billing factor above. MTD at 37. But, once again, there is no evidence
that the SEC is investigating or plans to investigate Defendants’ collusive behavior. And here,
unlike in Billing, there is no fine “line-drawing” that needs to be done to distinguish permittable
from permissible conduct as Defendants’ actions were entirely outside the realm of the SEC’s
regulatory authority. See Billing, 551 U.S. at 279.
G. Peak 6/E*TRADE Holdings/RH Markets cannot be dismissed
Defendants argue that three Defendant parent holding companies, Robinhood Markets,
E*Trade Holdings and PEAK6 should be dismissed. MTD at 38. They are wrong. As the Supreme
Court explained long ago, a corporate parent and subsidiary “share a common purpose whether or
not the parent keeps a tight rein over the subsidiary; the parent may assert full control at any
moment if the subsidiary fails to act in the parent’s best interests.”44 Copperweld Corp., 467 U.S

44
A corporation is not capable under the law of conspiring with its own agents, unincorporated
divisions, or wholly-owned subsidiaries because they are treated as a single entity. Copperweld,
467 U.S. at 771-72. Through its agents, however, a corporation is capable of conspiring with other
persons or independent corporations. Am. Soc. of Mech. Engineers, Inc. v. Hydrolevel Corp., 456
U.S. 556, 565-66, 572-74 (1982) (a principal “may be held liable [under the antitrust law] for the
acts of [its] agents even though the organization never ratified, authorized or derived any benefit
whatsoever from the fraudulent activity of the agent and even though the agent acted solely for his
private employer’s gain.”). Plaintiffs acknowledge that this Court did not apply the Copperweld
doctrine in In re Fla. Cement & Concrete Antitrust Litig., 746 F. Supp. 2d 1291, 1324 (S.D. Fla.
2010), relying on Mitchael v. Intracorp, Inc., 179 F.3d 847 (10th Cir. 1999). But the facts at hand
are distinguishable from Mitchael. The CCAC includes evidence of involvement of the holding
companies and the subsidiaries. Further, as noted in Arandell (900 F.3d at 631), the Tenth Circuit
later departed from Mitchael and applied Copperweld. See Lenox MacLaren Surgical Corp. v.
Medtronic, Inc., 847 F.3d 1221 (10th Cir. 2017)

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at 771-72. “[T]he Copperweld doctrine establishes that ‘[w]here there is substantial common
ownership, . . . individual firms function as an economic unit and are generally treated as a single
entity’” for purposes of liability. Arandell Corp. v. Centerpoint Energy Servs., Inc., 900 F.3d 623,
630 (9th Cir. 2018) (citation omitted); see also Lenox MacLaren Surgical Corp., 847 F.3d at 1236
(“the related entities’ coordinated conduct must be treated as the unitary conduct of the single
enterprise which together they form, and it is that aggregated conduct which must be scrutinized”);
In re Marine Hose Antitrust Litig., MDL No. 1888, 2009 WL 10692670, at *3 (S.D. Fla. May 26,
2009) (no need to differentiate between “related corporate entities” in complaint).
Defendants do not dispute the parent entities’ ownership of the Defendant subsidiaries. Nor
do they dispute that the individual firms function as an economic unit. Where they quibble is that
the CCAC does not set forth specific allegations against the parent entities. The CCAC, however,
contains specific allegations where individuals and agents of various individual firms within a
corporate family—including the corporate parent—engaged in collusive behavior to further the
anticompetitive scheme.45 And at motion to dismiss, that is enough.46
V. CONCLUSION
For the foregoing reasons, the Court should deny Defendants’ motion to dismiss in its
entirety. If the Court reaches a diﬀerent conclusion, Plaintiﬀs respectfully request leave to ﬁle an
amended complaint. See Jennings v. BIC Corp., 181 F.3d 1250, 1258 (11th Cir. 1999) (“leave to
amend should be liberally granted when necessary in the interest of justice”); Fla. Power & Light
Co. v. Allis Chalmers Corp., 85 F.3d 1514, 1520 (11th Cir. 1996) (“unless substantial reason exists
to deny leave to amend, the discretion of the district court is not broad enough to permit denial”).

45
In communications, Defendants’ employees did not hold themselves out as representatives of
one corporate entity or another within a corporate family. For example, Robinhood employees
made no distinction as to which entity they worked for. Further, Vlad Tenev, whose conduct is a
central issue in this case, is described as Robinhood’s CEO not the CEO of one Robinhood entity
or another. See, e.g., ¶¶ 340, 417, 467; see also MTD at 12, n.7 (describing Tenev as the CEO of
Robinhood Markets, Inc.). With respect to PEAK6, PEAK6 exercised direction and control over
Apex and ETC during the relevant period. Apex and ETC imposed identical or near-identical
trading restrictions. Such coordinated action would be highly unlikely absent direction and control.
See, e.g., ¶¶ 66-75, 277-78.
46
In any event, it would be premature to dismiss the corporate parent at this early stage when the
CCAC has more than set forth enough allegations to raise the expectation that further discovery
will reveal more evidence of the illegal agreement. See Twombly, 550 U.S. at 556.

40
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Dated: September 21, 2021

By: /s/ Joseph R. Saveri By: /s/ Frank R. Schirripa
Joseph R. Saveri Frank R. Schirripa

Joseph R. Saveri (CA SBN 130064) Frank R. Schirripa (NY SBN 4103750)
Steven N. Williams (CA SBN 175489) Kathryn Hettler (NY SBN 5126065)
Christopher K.L. Young (CA SBN 318371) Seth Pavsner (NY SBN 4969689)
Anupama K. Reddy (CA SBN 324873) Eugene Zaydfudim (NY SBN 5204334)
JOSEPH SAVERI LAW FIRM, LLP HACH ROSE SCHIRRIPA & CHEVERIE LLP
601 California Street, Suite 1000 112 Madison Ave, 10th Floor
San Francisco, California 94108 New York, New York 10016
Telephone: (415) 500-6800 Tel: (212) 213-8311
Facsimile: (415) 395-9940 fschirripa@hrsclaw.com
jsaveri@saverilawfirm.com khettler@hrsclaw.com
swilliams@saverilawfirm.com spavsner@hrsclaw.com
cyoung@saverilawfirm.com ezaydufim@hrsclaw.com
areddy@saverilawfirm.com
Co-Lead Counsel for the Antitrust Tranche

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