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Case: 1:04-cv-06756 Document #: 528-8 Filed: 07/24/15 Page 1 of 9 PageID #:5640

Exhibit H

Case: 1:04-cv-06756 Document #: 528-8 Filed: 07/24/15 Page 2 of 9 PageID #:5641

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THE UNITED STATES DISTRICT COURT.

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

et al.,

Plaintiffs,

U.S. FUTURES EXCHANGE, L.L.C., )
)
) No. 04 CV 6756
)
)
)
) Chicago, Illinois
)
)
) August 7, 2012
)
) 10:31 o'clock a.m.

BOARD OF TRADE OF THE
CITY OF CHICAGO, et al.,

Defendants.

vs.

TRANSCRIPT OF PROCEEDINGS

BEFORE THE HONORABLE JAMES B. ZAGEL

For the Plaintiffs:

MORGAN, LEWIS & BOCKINS
BY: William P. Quinn
1111 Pennsylvania Avenue, NW
Washington D.C. 20004

Morgan Lewis & Bockius LLP
BY: Romeo S. Quinto
77 West Wacker Drive
Chicago, Illinois 60601
(312) 324-1780

Court Reporter:

Blanca I. Lara, CRR, RPR
219 South Dearborn Street

Room 2318

Chicago, Illinois 60604

(312) 435-5895

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Case: 1:04-cv-06756 Document #: 528-8 Filed: 07/24/15 Page 3 of 9 PageID #:5642

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Appearances (continued:)

For the defendants:

FREEMAN, FREEMAN & SALZMAN, P.C.
BY: Jerrold E. Salzman
401 North Michigan Avenue
Suite 3200
Chicago, Illinois 60611

SKADDEN ARPS SLATE MEAGHER & FLOM, LLP CH
BY: Jason T. Manning

Albert Lee Hogan, III

155 North Wacker Drive
Suite 2700
Chicago, Illinois 60606-1720
(312) 407-0700

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purpose for doing it regardless of whether or not it

hurt them. We think their experts have already

admitted it, but if they have some discovery in

addition on that, we'll be happy to work on that and

deal with them and get it done.

Instead of anything focused--and we didn't

have a discussion, unfortunately, beforehand--we got

a proposal of sort of a blank standard discovery

schedule that's relatively arbitrary and not

connected to anything that anybody could possibly

need in order to decide those two issues which are

the main two issues in the case.

We would suggest, obviously, that we focus on

those issues. We discuss what they actually need,

what searches they need, what are legitimate, what

depositions they need, when they want them, and get

it done.

MR. QUINN: Your Honor, I will not paraphrase

the Court's opinion. I will say that we take away

from it something apparently fundamentally different

from what Mr. Saltzman is suggesting. He appears

from his remarks to think that the Court's ruling

narrows the scope of relevant discovery to a far

greater degree than we think is fair.

This is not simply a case about whether a

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particular trader was threatened or intimidated,

therefore isn't a case in which the only thing that

would be relevant would be a document that would

embody such a threat. We allege in this case that

there was a conspiracy between the then two separate

entities to stop Urex from establishing a foothold

in the U.S. market. There are multiple facets to

that conspiracy, but it is one over-arching strategy

that is interrelated.

The fact that the Court has taken out of the

case, at least as a basis for the antitrust

liability, the proceedings before the CFTC does not

mean that discovery is narrowly focused as

Mr. Saltzman suggested.

The defendants maintain that we have an

obligation to show that there was in fact a

conspiracy and that the actions that the defendants

took, the Court says are in the case, were motivated

by an anticompetitive intent. That places directly

in issue the very same documents that we sought

unsuccessfully before the summary judgement motion

was filed.

The Court asked us to come here today with a

plan for moving things forward. We have three

proposals:

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The first is that the Court enter a

scheduling order. We prepared a proposal that I'd

like to hand up, if I may.

(Handing document).

MR. QUINN: That proposal establishes

deadlines for the various proceedings that have to

take place before this case can be tried and it goes

all the way up through the suggested date of a final

pretrial conference. We think that this is a

schedule that strikes the right balance between

allowing the parties to do what needs to be done,

but establishing deadlines that are sufficiently

aggressive to ensure that there are no further

delays in getting this case tried.

The second proposal that we have is that the

Court grant our pending motion to compel the

defendants to produce the documents that they

produced to the Department of Justice pursuant to

civil investigative demands that were issued in

connection with the DOJ's merger investigation.

That issue has been briefed already, it's

been argued already. We believe that, particularly

in light of the Court's decision on summary

judgment, it's a no-brainer that they be required to

turn over those CD's. They have them. There is no

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meaningful expense, the burden associated with

producing them. They have already conceded that all

or substantially all of the documents that they had

agreed years ago are relevant in this case are

contained within that production. Those documents

are not privileged, by definition, because they were

disclosed to a third party, and they are not covered

by the statutory privilege that would apply if we

were seeking documents directly from the government

rather than from the defendants.

So we would propose that the Court grant that

motion, require them to turn over those documents

immediately, which we believe would get us 90

percent of the way we need to be to complete

document discovery.

And then the third thing we would propose is

that the Court appoint a discovery master, for the

reason that history of this case has shown that the

parties have great difficulty finding common ground

on anything, discovery in particular. And because

we anticipate that there will be probably more

disputes than we would prefer over discovery, that

in order to maintain this case on the right track, a

third-party be appointed in order to promptly

consider and resolve any discovery disputes that

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arise between the parties.

MR. SALTZMAN: It would've been good to meet

and confer this beforehand so that we could actually

form a position, but --

THE COURT: You are going to meet and confer

before I see you next, but --

MR. SALTZMAN: I think that would be the

appropriate way to do it.

With respect to this notion that there's a

conspiracy without a particular point of impact, I

don't believe that's the law in this circuit or in

the Supreme Court.

Effectively, a conspiracy is an illegal

agreement, an agreement to do something prohibited

by the law, and, in this case, we would have had to

do it. The only thing they've alleged that remained

in the complaint is that we intimidated traders and

that the Board of Trade transferred its open

interest to the CME clearing house in order to fork

their entrance into the market. Seventh Circuit

authority on refusing to deal with a competitor or

on the question of essential facilities is

absolutely clear, and as long as the Board of Trade

had a legitimate reason, business reason, to do both

acts, we're in the clear. And in this case, their

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I CERTIFY THAT THE FOREGOING IS A CORRECT TRANSCRIPT

FROM THE RECORD OF PROCEEDINGS IN THE ABOVE-ENTITLED

MATTER

/s/Blanca I. Lara

date

_________________________

___________________

Blanca I. Lara

Date

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