OPINION AND ORDER
This is a putative class action under the Commodity Exchange Act and the- Sherman and Clayton Acts alleging manipulation of prices for physical and financial natural gas contracts. Alan Harry, Levante Capital, LLC, Public Utilities District No. 1 of Clark County, Washington (d/b/a Clark Public Utilities), and C & C Trading, LLC (the “plaintiffs”) engaged in transactions in the physical and financial natural gas markets, including on the New York Mercantile Exchange (“NYMEX”) and the Intercontinental Exchange (“ICE”). The plaintiffs allege that Total Gas & Power North America, Inc. (“TGPNA”), Total, S.A. (“Total”), and Total Gas & Power Limited (“TGPL”) (the “defendants”) manipulated the price of physical natural gas at four regional hubs in the southwestern United. States between, ■ 2009 and 2012. They further allege that such manipulation caused economic harm to the plaintiffs’ physical and' financial natural gas contracts—which contracts were tied to natural gas prices at a separate hub, the Henry Hub in Louisiana—on the theory that manipulation at the regional hubs inevitably impacts prices at the Henry Hub.
All defendants now move to dismiss the consolidated amended complaint (“CAC”) for lack of Article III standing and failure to' state a claim under Federal Rule of Civil Procedure 12(b)(6). Total and TGPL (“the foreign defendants”) also move to dismiss the CAC undеr Rule 12(b)(2) for lack of personal jurisdiction. This Court has subject matter jurisdiction pursuant to 7 U.S.C. § 25, 15 U.S.C. § 2, 15 U.S.C. § 15, and 28 U.S.C., §§ 1331 and 1337.
For the reasons explained below, the motions to dismiss for failure to state a claim are granted.
I.
In deciding a motion to dismiss pursuant to Rule 12(b)(6), the allegations in the complaint are accepted as true, and all reasonable inferences must be drawn in the plaintiffs favor. McCarthy v. Dun & Bradstreet Corp.,
When presented with a motion to dismiss pursuant to Rule 12(b)(6), the Court may cоnsider' documents that are referenced in the complaint, documents that the plaintiff relied on iri bringing suit and that are either in the plaintiffs possession or that the plaintiff knew of when bringing suit, or matters of which judicial notice may be taken. See Chambers v. Time Warner, Inc.,
II.
The following facts alleged in the CAC are accepted as true for purposes of the defendants’ motions to dismiss. ' ■ •
A.
The North American natural gas market consists of a physical market and a financial market. On the physical market, actual natural gas is produced, stored, bought, sold, and consumed. See CAC ¶ 37. On the financial market, intangible financial products derived from physical natural gas are traded over-the-counter or on public markets. See id. Part of the physical natural gas market consists of “on the spot” sales in which a buyer agrees to pay a negotiated price for natural gas to be delivered by the seller at a specified delivery point the following day. Id. ¶43. “Spot” prices reflect daily supply and demand balances and are tied to individual regional hubs— that is, to the “specific points where pipeline interconnections allow the transfer of gas from one pipeline to another”—with prices “varying with the demand сharacteristics of the market, as well as the region’s access to different supply basins, pipelines and storage facilities.” Id. ¶¶3, 39, 44. One of those hubs—the Henry Hub, located in Louisiana—^“has become the dominant benchmark point in the physical natural gas market because of its strategic location” and the “number of pipeline connections to the East Coast and Midwest consumption centers” located there. Id. ¶ 40.
Several publications, including Platts Gas Daily (“Platts”), Natural Gas Intelligence (“NGI”), and Natural Gas Week, “survey the market for daily transaction prices” at each delivery hub, which are used to “determine and publish a daily index” made available prior to .the next business day. Id. ¶ 44. Physical natural gas transactions call for delivery at a specified delivery hub and are based on either “fixed prices”—which are negotiated at the time of the transaction—or “index prices,” which are determined each month by trading information reported to Platts and NGI. Jd. ¶¶ 5-6. Monthly index prices are based on the volume-weighted average price of all reported fixed price physical natural gas transactions which occur dur
Accordingly, there are monthly index settlement prices for physical natural gas at each delivery hub, including the Henry Hub. Those monthly index prices form the basis of and “are factored directly into the price of natural gas financial products,” including, as relevant here, natural gas futures contracts traded on the NY-MEX. Id. ¶¶ 6, 49. A futures contract “is an agreement for the purchase or sale of a particular commodity for delivery on a fixed date in a future month.” Id. ¶ 51. A futures contract both “minimizes exposure to price risk by locking in a price to pay, or receive” natural gas delivery, and also enables traders to speculate on natural gas prices. Id. ¶ 52. “The prices of physical and futures natural gas contracts are inextricably linked” such that, as expectations change regarding what the price of natural gas will be at a particular hub on the fixed delivery date, the value of the futures contract for delivery at that hub will likewise change. Id. ¶50. Although futures prices can exert influence on physical prices over long horizons, short-term fluctuations in the physical “spot” market at a particular hub can cause futures contracts with upcoming delivery dates to “fluctuate significantly and rapidly.” Id.
At the center of this case is a specific kind of natural gas futures contract—a NYMEX natural gas futures contract. Each such contract is a contract for 10,000 million British thermal units of natural gas to be delivered to the Henry Hub. Id. ¶¶ 3, 57. Prices for NYMEX natural gas futures contracts are “based on physical delivery of natural gas at the Henry Hub,” such that the price for natural gas delivered to that hub forms the basis of the “settlement price” of the futures contract. Id ¶¶ 57-59. “The differential value between [physical] natural gas prices at one delivery hub compared to the natural gas futures prices traded on the [NYMEX] is known as ‘basis.’ ” Id. ¶ 8. In other words, natural gas futures contracts traded on NYMEX derive their prices—and, accordingly, their value—from the spot price of natural gas at the Henry Hub, and Henry Hub prices have “become the standard basis reference point” for natural gas prices at other hubs throughout the United States and Canada. Id. ¶ 3; see id. ¶ 39. The vast majority of NYMEX natural gas futures contracts do not result in the delivery of physical natural gas at the Henry Hub; rather, they “are liquidated or cancelled by purchasing or selling a covering futures position prior to the delivеry date.” Id. ¶ 56.
Henry Hub prices are used as a standardized reference point within the natural gas market because “Henry Hub is the most liquid and active of the physical and futures markets.” Id ¶3. Thus, natural gas prices at other regional hubs “are often quoted as a ‘differential’ between prices at the Henry Hub and [that] regional hub.” Id. Physical natural gas at individual regional hubs “may trade either at prices that are higher or lower than Henry Hub, depending on regional market conditions and available transmission capacity between hubs.” Id. ¶45. Because trading volume at certain regional hubs is so much smaller than at Henry Hub, it is relatively easier to “engage in market manipulation” at those hubs, that is, to influence physical natural gas prices at those hubs. Id. ¶ 42. The CAC alleges that market deregulation and technological innovations have caused regional physical natural gas markets to become co-integrated, such that “price changes in regional hubs impact prices at the Henry Hub.” Id
In addition to futures contracts, there are a number of other financial products
B.
The Federal Energy Regulatory Commission (“FERC”) and Commodity Futures Trading Commission (“CFTC”)—the federal agencies that regulate the natural gas and futures and options markets, respectively—began investigations into suspected manipulation by TGPNA of natural gas monthly index settlement prices at four regional delivery hubs in Texas, New Mexico, and California. CAC ¶¶ 72-73. In December 2015, TGPNA entered a $3.6 million settlement with the CFTC (“CFTC Order” or “Order”). See id. ¶ 73; Decl. of Rachel Mondl in Supp. of Mot., Ex. B (CFTC Order). The CFTC Order sets out the regulators’ findings, which TGPNA neither admitted nor denied. CFTC Order p. 1. The Order alleges that during bid-weeks for September and Octobеr 2011, and March and April 2012, TGPNA “attempted to manipulate monthly index settlement prices of natural gas” at four hubs, including El Paso Natural Gas Co., Permian Basin (“Permian”), El Paso San Juan Basin (“San Juan”), Southern California Gas Co. (“SoCal”), and West Texas, Waha (“Waha”) (the “relevant hubs” or “regional hubs”). CFTC Order p. 2.
The Order alleges that TGPNA engaged in substantial fixed price trading of physical natural gas during particular bidweeks at the relevant hubs in an attempt to affect the monthly index settlement prices in a way that would benefit TGPNA’s related financial or “paper” positions, namely, their positions on certain swap contracts. CFTC Order p. 2. In particular, the Order alleges that TGPNA made trades during the September 2011 bidweek at SoCal and Permian that were meant to manipulate monthly index settlement prices at those hubs to benefit TGPNA’s financial position on certain derivatives contracts by “increasing the spread between the monthly index settlement prices at SoCal and Permian,” that is, by increasing the difference in prices between the two hubs. CFTC Order pp. 5-6. The Order alleges that in October 2011, TGPNA made trades at San Juan intended to manipulate the monthly index settlement price at that hub in order to benefit TGPNA’s short position “by narrowing the spread between the NYMEX settlemеnt price and the monthly index price at San Juan.” CFTC Order at 6. The Order also alleges that in March 2012, TGPNA attempted to manipulate the monthly index settlement price at SoCal in order to benefit TGPNA’s related short position by “narrowing the spread between the NYMEX settlement price and the monthly index price at SoCal.” CFTC Order at 6. Finally, during the April 2012 bidweek, TGPNA allegedly attempted to manipulate the monthly index settlement prices at SoCal and San Juan in order to benefit its related spread positions at those locations by “increasing the spread between the monthly index settlement price at SoCal and San Juan.” CFTC Order p. 7. The Order concludes that TGPNA “specifically intended to execute enough fixed-
The FERC also conducted a lengthy investigation into TGPNA’s fixed price trading at the- regional hubs, which culminated in April 2016 in an Order to Show Cause and Notice of Proposed Penalty (“Order to Show Cause”) and accompanying Enforcement Staff Report and Recommendation (“FERC R & R”). The FERC R & R alleges that TGPNA and two individual employees working at the “West Desk” violated Section 4A of the Naturаl Gas Act and the FERC anti-manipulation rule, 18 C.F.R. § lc.l, by devising arid engaging in “uneconomic trades of monthly physical fixed price natural gas during bidweek at the [four relevant hubs], and then reporting] those trades to publications for inclusion in monthly index prices” in order to affect those index prices and “related positions whose value was tied to those same indexes.” Mondl Decl. Ex. C (Order to Show Cause) p. 2. As alleged in the FERC R & R:
This scheme operated in two phases. First, before and during bidweek, the West Desk accumulated large positions of physical and financial natural gas products exposed to monthly index prices [at the relevant hubs], giving it the motivation and ability to manipulate prices. Second, the West Desk traded a dominant market share of monthly physical fixed price natural gas during bid-week [at those hubs] to inflate or suppress the volume-weighted average price .and then reported these trades for inclusion in the calculation of the published monthly index prices to which it was exposed.
Mondl Decl. Ex. C. Appendix A (FERC R & R) pp. 1-2. In other words, TGPNA allegedly traded fixed price physical natural gas at the regional hubs in a strategic attempt to affect the monthly index prices at those hubs in ways that would increase the value of its derivative contraсts, which were tied at least in part to those index prices. The R & R alleges that such attempted manipulation occurred on at least 38 occasions throughout multiple bidweeks across the four relevant hubs between 2009 and 2012. FERC R & R p. 102.
The Order to Show Cause seeks over $9 million in alleged unjust profits and over $213,000,000 in civil penalties. FERC R & R pp. 2-3,102; Order to Show Cause p. 1. The FERC proceedings remain pending.
The great bulk of the substantive allegations made in the CAC are lifted directly from those included in the CFTC Order and the FERC R & R. See Mondl Deck Ex. A (comparing the three documents). But the CAC also includes allegations not made by the CFTC or FERC, including that the defendants’ manipulation “was directed [not only] at the relevant hubs, but also at Henry Hub.” CAC ¶ 251; see CFTC Order p, 11. The CAC also includes allegations that the plaintiffs maintain are supported by a statistical analysis performed by a “Plaintiffs’ Consulting Expert.” CAC ¶ 7.
C.
The plaintiffs seek to represent a class of individuals who, between June 1, 2009 and June 30, 2012 (“the Class Period”^ purchased and/or sold physical natural.gas contracts or derivative financial natural gas contracts either over-the-counter or on an electronic platform or other exchange at prices “made artificial” by the defendants’ alleged manipulation. CAC ¶302.
The plaintiffs bring five claims for manipulation and monopolization under the Commodity Exchange Act, 7 U.S.C. §§ 1 et seq. (“CEA”), 17 C.F.R. §§ 180.1 and 180.2, and Section 2 of the Sherman Act, 15 U.S.C. § 2. Count One alleges that the defendants “knowingly and recklessly executed physical fixed-price trades .during bidweek to influence monthly index settlement prices of natural 'gas at four major trading hubs,” that the scheme influenced natural gas prices more generally, and that such manipulation “caused prices of natural gas and natural gas futures, options, swaps and other derivatives contracts to be artificial during the Class Period.” CAC ¶¶ 310, 316. The CAC further alleges that the plaintiffs and members of the proposed class who “purchased or sold natural gas futures, options, swaps and other derivatives contracts,” including on NYMEX and ICE, “were injured and suffered, damages” as a result of transacting at the allegedly artificial prices. Id. ¶¶ 316, 319, 322. Count One alleges manipulation in violation of Sections 6(c)(3), 9(a), and 22(a) of the CEA, 7 U.S.C. §§ 9(3), 13(a), and 25(a), and CFTC Rule 180.2, 17 C.F.R. § 180.2.
Count Two alleges that the defendants engaged in unlawful manipulation by distributing to Platts and NGI “false- or misleading or inaccurate reports of their uneconomic trades” “knowing, or acting in
Count Three alleges principal-agent liability under Section 2(a)(1)(B) of the CEA, 7 U.S.C. § 2(a)(1)(B), on the theory that all three defendants, “through their employees, agents and/or others, directed, developed, executed and otherwise acted with respect [to] the scheme alleged.” CAC ¶ 332. Likewise, Count Four alleges aiding and abetting by each defendant as to each other defendant in violation of Section 22(a)(1) of the CEA, 7 U.S.C. § 25(a)(1).
Count Five alleges monopolization and attempted monopolization of “the physical natural gas market at major trading hubs” including the four regional hubs—Permian, San Juan, SoCal, and Waha—and the Henry Hub, in violation of § 2 of the Sherman Act, 15 U.S.C. § 2. CAC ¶ 344. The CAC alleges that the defendants reported “excessive trading volumes of uneconomic trades and maintained an excessively high market share during bidweek” at the four regional hubs, “which impacted and controlled the reported monthly index settlement prices” at those hubs. Id. ¶ 346. The CAC further alleges that the plaintiffs— who traded natural gas derivatives “whose prices were inextricably linked to the price of natural gas” at the four regional hubs— “were deprived of normal, competitive trading patterns” and suffered financial losses as a consequence. Id. ¶ 351.
The plaintiffs seek treble damages under § 4 of the Clayton Act, 15 U.S.C. § 15, as well as punitive and actual damages, costs, and fees.
III.
A.
The defendants move to dismiss the CEA claims, Counts One through Four, for failure plausibly tо allege damages. “The CEA prohibits any person from ‘manipulating] or attempting] to manipulate the price of any commodity.’” In re Commodity Exchange, Inc. Silver Futures and Options Trading Litig. (“Silver Futures”)
The CAC does not plead facts' that would allow the Court to draw a reasonable inference that the plaintiffs suffered any economic injury as а result of the defendants’ alleged manipulation of monthly index prices of physical natural gas at the regional hubs. See Iqbal,
That combination of allegations does not “nudge[ ] [the plaintiffs’] claims across the line from conceivable to plausible.” Twombly,
The plaintiffs attempt to make up for the fact that they did not purchase any
By contrast, the plaintiffs in Alaska Electrical Pension Fund v. Bank of America Corporation,
Similarly, in In re Foreign Exchange Benchmark Rates Antitrust Litigation, (“ForEx II”),
No such direct connection has been alleged here because none exists. The monthly index price of physical natural gas at the regional hubs is not incorporated into the price of the derivative instruments purchased by the plaintiffs. There is also no allegation that a price change at one of the four regional hubs would necessarily (or even plausibly) result in a corresponding price change of equal or similar severity at the Henry Hub such that, for example, a five cent drop in prices at Waha or SoCal would result in a five cent drop in prices at the Henry Hub. The CAC does not allege such a relationship, nor could it. Indeed, the plaintiffs disclaimed any'such relationship at 'the argument on the motions to dismiss. E.CF No. 104 p., 34] This is because, as the CAC acknowledges, there is no linear relationship between any one of the four regional' hubs and the Henry Hub; rather, prices at a regional hub “will trade both above and below the
The defendants are alleged to have made 1,182 manipulative trades across four regional hubs over a period of three years. FERC R & R p. 95 n.440. Those trades are alleged to have been made in an attempt to affect index prices at the regional hubs in different directions over different periods of time. See FERC R & R pp. 38-51 (describing examples of attempts to manipulate prices). By comparison, although the plaintiffs do not specify how many physical fixed price trades were made at the Henry Hub during the Class Period, they do acknowledge that “Henry Hub is the most liquid and active of the physical and futures markets,” CAC ¶3. The plaintiffs’ own submissions also show that there were approximately 36 million NYMEX futures contracts traded during the Class Period. Id. § 255. The plaintiffs do not offer any plausible theory under which the instruments they purchased— whose prices were based on the price of natural gas at Henry Hub—could have been affected by those 1,182 trades under these circumstances.
Moreover, the plaintiffs’ allegation of damages fails because they “have failed to allege actual losses on any specific transactions.” Braman v. The CME Grp., Inc.,
The plaintiffs have therefore failed to allege plausibly that they have suffered “actual damages,” and their claims in Counts One and Two of the CAC must be dismissed. LIBOR I,
Moreover, because the plaintiffs failed to state a claim under the CEA in Counts One and Two of the CAC, their claims for aiding and abetting and principal-agent liability, Counts Three and Four, also fail. See 7 U.S.C. § 2(a)(1)(B); In re Platinum and Palladium Commodities Litig.,
B.
The CEA claims must also be dismissed because the CAC fails to allege plausibly that TGPNA “specifically intended to cause the artificial price” of physical or financial instruments purchased by the plaintiffs. Amaranth III,
Hershey, which was cited by the Second Circuit Court of Appeals in Amaranth III, is directly on point and disposes of the plaintiffs’ argument. In Hershey, as here, the plaintiffs were purchasers of NY-MEX natural gas futures contracts.
The CAC does not allege facts that would allow a plausible inference that the defendants acted “with the purpose or conscious object of’ manipulating prices at the Henry Hub. Silver Futures-,
The plaintiffs argue, relying on LIBOR H, that they have adequately pleaded intent by alleging that the defendants acted “with reckless disregard for the potential impact of their trading on natural gas prices” generally, such that their manipulation was not only directed at the [regional] hubs, but also at the Henry Hub.” CAC ¶251. íhose allegations are insufficient and implausible. The court in LIBOR II concluded that the plaintiffs had adequately pleaded scienter through “conscious misbehavior or recklessness” because they had adequately pleaded “that the ‘danger’ of submitting artificial LIBOR quotes—’the manipulation of the price of Eurodollar futures contracts—was either known to the defendant banks or ,so obvious that théy must have been aware of it.”
C.
Count Five of the CAC alleges monopolization and attempted monopolization under § 2 of the Sherman Act, 15 U.S.C. § 2, The plaintiffs lack antitrust standing, and thus are not the appropriate parties to bring such a claim.
“To state a claim for monopolization undеr section 2 of the Sherman Act, [plaintiffs must allege ‘(1) the possession of monopoly power in the relevant market and (2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident.’” In re Crude Oil Commodity Futures Litig.,
1.
In order to establish the first prong of antitrust standing, antitrust injury, “the plaintiff must demonstrate that its injury is of the type the antitrust laws were- intended to prevent and that flows from that which makes defendants’ acts unlawful.” Aluminum Warehousing,
The CAC alleges that the-defendants “monopolized the physical natural gas market” at the relevant regional hubs, as well as at the Henry Hub. CAC ¶ 344. In particular, the CAC alleges that the defendants “intentionally reported to index publishers excessive trading volumes of uneconomic trades and maintained an ex
Moreover, the plaintiffs have failed to allege that their purported injury is “of the type the antitrust laws were intended to prevent and that flows from that which makes defendants’ acts unlawful.” Aluminum Warehousing,
The plaintiffs argue that they need not have participated in the precise market in which the anticompetitive conduct is alleged to have occurred because courts routinely accept allegations of antitrust injury “where defendants engaged in a scheme to manipulate ‘ the price of a commodity or commodity index price with the intent to affect the price of a derivative financial product tied to that commodity or index price.” Plaintiffs’ Mem. in Opp. to Total Mot. p. 29. This assertion is accurate but ultimately unhelpful to these plaintiffs.
Courts have accepted allegations of antitrust injury asserted by plaintiffs who purchased financial instruments where defendants were alleged to have monopolized
None of these cases help the plaintiffs. The market or markets which were “directly restrained” by the defendants’ alleged manipulation are (1) the physical natural gas market at the four relevant regional hubs and, accordingly, (2) the market for derivative financial instruments priced with reference to index prices at those hubs. Id. at 161. The plaintiffs are not participants in either one, and thus cannot establish antitrust injury.
There is also no allegation that the defendants -sought to use the manipulation of the natural gas market at the Henry Hub—or the derivatives market based on the Henry Hub—as a “conduit” for achieving the manipulation of index prices at the four regional hubs. Aluminum Warehousing is instructive оn this point. In that case, the defendants were aluminum derivatives traders and their corresponding aluminum warehouse operator affiliates.
The Court of Appeals found that the plaintiffs lacked antitrust standing. The Court noted that -the plaintiffs had not 'participated in “any of the markets in which the defendants operate.” Id. at 161. The Court found that, because all- of the anticompetitive conduct alleged took place in the.warehouse storage market, that was the market “where the dirfect, immediate impact would, have been felt,” Id. at 162. The Commercial Purchasers and Consumers Were not participants in that market, nor were their injuries “a necessary step in effectuating, the alleged conspiracy,” or “the very means by which the defendants” carried out their illegal scheme. Id. (quotation marks omitted). Thus, the defendants there had not used the plaintiffs as a “fulcrum” or a “conduit.” Id. The Court of Appeals concluded that any injury to the ’ Commercial Purchasers and Consumers “was suffered down the distribution chain of a separate market, and was a purely incidental byproduct of the alleged scheme.” Id.
So too here. The anticompetitivе conduct alleged includes (1) that the defendants made excessive and uneconomic trades and maintained an excessively .high market share during certain bidweeks at certain of the regional hubs; and (2) that the defendants intentionally reported those trades to index publishers in order t'o impact the reported monthly- index settlement prices at those hubs. That conduct took place, if at all, in the physical natural gas markets at the regional hubs, and that is where the direct and immediate impact would have been felt. See Aluminum Warehousing,
The concept of antitrust injury limits those plaintiffs who can sue 'for antitrust damages in order to avoid “duplica-tive recovery” and tо preclude from suing those with injuries that are “too remote” from, and not proximately caused by, the antitrust violation. Aluminum Warehousing,
2.
The plaintiffs are also not efficient enforcers of the antitrust laws. In considering whether a putative antitrust plaintiff is an “efficient enforcer,” the Court must consider “(1) the directness or indirectness of the asserted injury, which requires evaluation of the chain of causation linking [the plaintiffs’] asserted injury” to the defendants’ alleged manipulation; “(2) the existence of more direct victims of the alleged conspiracy; (3) the extent to which [the plaintiffs’] damages claim is highly speculative; and (4) the. importance of avoiding either the risk of duplicative recoveries on the one hand, or the danger of complex apportionment of damages on the other.” Gelboim,
Every one of those factors weighs against a finding that the plaintiffs are efficient enforcers. The CAC alleges monopolization of the physical natural gas markets at the four individual regional hubs, which the plaintiffs allege had some impact on the price of physical natural gas at the Henry Hub, which in turn affected the value of the derivative instruments purchased by the plaintiffs. The injuries alleged are thus, as described above, “only indirectly related to the primary violation asserted,” and the plaintiffs’ alleged damages are “speculative at best.” Gatt Commc’ns,
In sum, because the plaintiffs have failed to establish antitrust injury and have failed to show that they are efficient enforcers of the antitrust laws, they are not entitled to relief under § 2 of the Sherman Act. Count Five must therefore be dismissed.
D.
The foreign defendants filed a separate motion to dismiss adopting all of the arguments made by TGPNA. They also argue that the Court does not have personal jurisdiction over them. It is unnecessary to reach the personal jurisdiction arguments because, as described above, the plaintiffs have failed to state a claim under either the CEA or the Sherman Act.
CONCLUSION
The Court has considered all of the arguments оf the parties. To the extent not specifically addressed above, they are either moot or without merit. For the foregoing reasons, the defendants’ motions to dismiss, ECF Nos. 64 and 85, are granted.
SO ORDERED.
Notes
. Although the expert is unnamed in the CAC, in response to the Court’s skepticism at the argument of the motions, the plaintiffs subsequently identified the expert as Nejat Seyhun, Ph.D. See ECF No. 102.
. The plaintiffs attach to the CAC the charts included in the FERC R & R of the actual trades made by TGPNA which are alleged to have been made' in an attempt to manipulate prices at those hubs, See CAC Appendix A,
. The class definition includes territorial limitations that are not relevant to this decision,
. The parties disagree as to “whether the heightened pleading standard of Federal Rule of Civil Procedure 9(b) or the more relaxed standard of Rule 8(a) applies in this case.” Myun-Uk Choi v. Tower Rest. Capital LLC,
. The defendants also árgue that the plaintiffs lack Article III standing because they have failed to allege an injury in fact. "Article III standing consists of three irreducible elements:- (1) injury in fact, which is a concrete and particularized harm to a legally protected interest; (2) causation in the form of a ‘fairly traceable’ connection between the asserted - injury-in-fact and the alleged actions of the defendant; and (3) redressability, or a non-speculative likelihood that the injury can be remedied by the requested relief.” W.R. Huff Asset Mgmt. Co., LLC v. Deloitte & Touche LLP,
, At oral argument the plaintiffs argued that the allegations in tire complaint of "persistent manipulation” are similar to the LIBOR plaintiffs' allegations of "persistent suppression of LIBOR” for which the court did not require an identification of specific transactions. LIBOR II,
. By contrast, a defendant in In re Natural Gas Commodity Litig., ("Natural Gas I”),
. Although failure to allege damages has been characterized as an issue of statutory standing, "[t]he Supreme Court has recently clarified ... that what has been called 'statutory standing' in fact is not a standing issue, but simply a question of whether the particular plaintiff 'has a cause of action under the statute.' ” Am. Psychiatric Ass'n v. Anthem Health Plans, Inc.,
. Both Counts One and Two rely-on the private right of action created by 7 U.S.C. § 25(a).
. As discussed above, the plaintiffs have failed even to identify those contracts, although it is plain that the plaintiffs have not alleged that they purchased physical natural gas at the four regional hubs or derivatives contracts based on prices at those hubs.
. The plaintiffs' rеliance on Amaranth is unavailing because "Amaranth's alleged manipulations were directed toward and directly impacted the NYMEX natural gas futures market and the Amaranth plaintiffs alleged that Amaranth specifically intended to manipulate the market of the futures that they had purchased.” Hershey,
. The plaintiffs argue, relying on a recent unpublished decision by the Court of Appeals, Wacker v. JP Morgan Chase & Co.,
. For the same reasons that the plaintiffs have failed to allege an actual injury, as described in note 5, supra, they have also failed to allege Article III standing to assert their antitrust claim.