Antitrust Law Daily Wrap Up, ANTITRUST—S.D.N.Y.: Sovereign immunity finding subject to new facts in London Metal Exchange case, (Oct 9, 2014)

By Greg Hammond, J.D.

Purchasers of aluminum that alleged a conspiracy to restrain the output of aluminum among the London Metal Exchange Ltd. (LME), owners and operators of metal storage warehouses, and metal traders will be allowed to set forth new factual allegations against the LME in their motion for reconsideration of the dismissal of LME on foreign sovereign immunity grounds. According to the federal district court in New York City’s order, the plaintiffs may “set forth any new factual allegations not previously brought to the Court’s attention that bear on the LME’s role in the alleged antitrust conspiracy” (In re Aluminum Warehousing Antitrust Litigation, October 7, 2014, Forrest, K.).

In its earlier decision, the court concluded that the five Filler factors tipped in favor of finding the LME an organ of the U.K. government. The factors included: (1) whether the foreign state created the entity for a national purpose; (2) whether the foreign state actively supervises the entity; (3) whether the foreign state requires the hiring of public employees and pays their salaries; (4) whether the entity holds exclusive rights to some right in the [foreign] country; and (5) how the entity is treated under foreign state law. Because the LME was an “organ” of a foreign state, and the “commercial activity” statutory exception did not apply, LME was deemed immune from the conspiracy claims under the Foreign Sovereign Immunities Act.

The case number is 13-md-2481 (KBF).

Attorneys: Benjamin Martin Jaccarino (Lovell Stewart Halebian Jacobson LLP) for Superior Extrusion Inc. Phillip Timothy Howard (Howard & Associates PA) for Master Screens Inc. Adam E. Polk (Girard Gibbs LLP) for D-Tek Manufacturing. Daniel E. Becnel, Jr. (Becnel Law Firm, LLC) for River Parish Contractors, Inc. Azra Zahoor Mehdi (The Mehdi Firm) for Viva Railings, LLC. Benjamin M. McGovern (Holland & Knight, LLP) for Goldman Sachs Group, Inc., GS Power Holdings LLC, and Metro International Trade Services, LLC. Jennifer Lynn Giordano (Latham & Watkins LLP) for London Metal Exchange Ltd. Henry Liu (Covington & Burling LLP) for JPMorgan Chase & Co.

Companies: Superior Extrusion Inc.; Master Screens Inc.; D-Tek Manufacturing; River Parish Contractors, Inc.; Viva Railings, LLC; Goldman Sachs Group, Inc.; GS Power Holdings LLC; Metro International Trade Services, LLC; London Metal Exchange Ltd.; JPMorgan Chase & Co.

Cases: Antitrust NewYorkNews