Kohen v. Pacific Investment Management Co. LLC

244 F.R.D. 469, 2007 U.S. Dist. LEXIS 56389, 2007 WL 2228696
CourtDistrict Court, N.D. Illinois
DecidedJuly 31, 2007
DocketNo. 05 C 4681
StatusPublished
Cited by18 cases

This text of 244 F.R.D. 469 (Kohen v. Pacific Investment Management Co. LLC) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kohen v. Pacific Investment Management Co. LLC, 244 F.R.D. 469, 2007 U.S. Dist. LEXIS 56389, 2007 WL 2228696 (N.D. Ill. 2007).

Opinion

MEMORANDUM OPINION AND ORDER

RONALD A. GUZMÁN, District Judge.

Plaintiffs Breakwater Trading LLC (“Breakwater”) and Richard Hershey have filed this class action against Pacific Investment Management LLC (“PIMCO”) and PIMCO Funds alleging violations of §§ 9(a), 22(a) and 22(a)(1) of the Commodity Exchange Act (“CEA”). 7 U.S.C. §§ 13(a), 25(a), 25(a)(1). Plaintiffs now move for class certification pursuant to Federal Rule of Civil Procedure (“Rule”) 23. Additionally, defendants have moved to dismiss the complaint for failure to state a claim pursuant to Rule 12(b)(6). For the reasons set forth in this opinion, the Court grants plaintiffs’ motion for class certification, denies PIMCO Funds’ motion to dismiss, and grants in part and denies in part PIMCO’s motion to dismiss,

Facts

This is a class action brought by plaintiffs on behalf of purchasers of the June 2005 Ten-Year Treasury note futures contract (“June Contract”). (Pis.’ Mem. Supp. First Am. Mot. Class Cert. (“Pis.’ Mem. Supp. Mot. Class Cert.”) 1.) Plaintiffs allege defendants manipulated and aided and abetted the manipulation of prices of the June Contract and the cheapest-to-deliver (“CTD”) Treasury note underlying the June Contract in violation of §§ 9(a), 22(a) and 22(a)(1) of the CEA. (Id.)

Futures contracts are standardized according to terms specified by the commodities exchange that creates the contract, which mattes such contracts fungible and allows them to be bought and sold over the exchange. (Compl. 1129; PIMCO’s Mem. Supp. Mot. Dismiss 3.) The party contracting to sell the underlying commodity pursuant to a futures contract is called the “short,” and is said to have a “short position.” (PIMCO’s Mem. Supp, Mot. Dismiss 3-4.) The party contracting to buy the underlying commodity pursuant to a futures contract is called the “long,” and is said to have a “long position.” (Id.) The long position has the right to take delivery of the underlying commodity, while the short position is obligated to make delivery to the long position. (Id.) A party to a futures contract can “liquidate” its position by entering into an equal and opposite trans[473]*473action (i.e., “offset”) in the futures market prior to the expiration of trading on the futures contract. (Id. at 4.)

Plaintiffs Hershey and Breakwater purchased June Contracts during the class period to liquidate a short position and incurred a loss on the transaction. (Compl.HH 18-19.) PIMCO is an institutional money manager, and PIMCO Funds is a Massachusetts trust and registered open-end management investment company consisting of separate portfolios. (Id. HH 22-23.) PIMCO Funds does not make any investment decisions or execute trades; rather, PIMCO Funds contracts with its investment advisor, PIMCO, (PIMCO Funds’ Mem. Supp. Mot. Dismiss 2.) Plaintiffs refer to PIMCO and PIMCO Funds collectively in their complaint, (Compl.H23.) Plaintiffs allege that between the years 2000 to 2004 the volume and open interest of the Chicago Board of Trade (“CBT”) Ten-Year Treasury note futures contract steadily increased while the available supply of Treasury notes deliverable in satisfaction of the futures contracts remained constant or declined, which made the futures contract susceptible to manipulation by a person in control of a large long position. (Pis.’ Mem. Supp. Mot. Class Cert. 3.) In late 2004 and 2005, and with knowledge of the foregoing facts, defendants began to accumulate a large long position in the June Contract. (Compl.HH 2, 45.) By March 31, 2005, defendants held in excess of $16.3 billion in the June Contract, which plaintiffs claim is of unprecedented size and was many times larger than defendants’ position prior to October 2004. (Id. H 53; Pis.’ Mem. Supp. Mot, Class Cert, 3.) This long position exceeded the available supply of the CTD Treasury note. (Pis.’ Mem. Opp’n PIMCO’s Mot. Dismiss 6.)

Additionally, from March 20, 2005 until the end of June 2005, defendants increased their holdings of the February 2012 Treasury note (the “CTD Treasury note”) to $13.3 billion, which was the CTD Treasury note for the June Contract and was in excess of 75% of the deliverable supply of such notes. (Compl, HH 5, 34, 37, 56, 58; Pis.’ Mem. Supp. Mot. Class Cert. 4.) However, defendants argue that the $13.3 billion amounted to merely 3.16% of the notes deliverable under the terms of the June Contract. (PIMCO’s Mem. Supp. Mot, Dismiss 6.)

The CBT rules specify a number of different Treasury note issues with maturity dates ranging from six-and-one-half to ten years that are acceptable for delivery against a Ten-Year Treasury note futures contract. (Compl.H33.) Although multiple Treasury note issues are typically deliverable against a particular futures contract, usually a single Treasury note is most economical for shorts to deliver, which is referred to as the CTD. (Id. H 34.)

As the June Contract neared its expiration, and coinciding with a decline in the open interest of the June Contract in May and June 2005, defendants held their long position in the June Contract, which plaintiffs claim is “highly unusual.” (Id. H4; Pis.’ Mem. Supp. Mot. Class Cert. 4; Pis.’ Mem. Opp’n PIMCO’s Mot. Dismiss 6.) After trading in the June Contract closed, defendants represented that they took deliveries on the June Contract (which, according to plaintiffs, occurs less than 1% of the time because traders usually offset their future contract positions before their contracts mature) and acquired a large position in the CTD Treasury note for investment purposes. (Compl. H 30; Pis.’ Mem. Supp. Mot. Class Cert. 4.) However, by September 30, 2005, defendants had sold all of their CTD Treasury note holdings. (Pis.’ Mem. Supp. Mot. Class Cert. 4.) On June 29, 2005, the CBT amended CBT Regulation 425.01 to limit the amount of contracts that could be held during the last ten trading days to 50,000 contracts, which was less than one-third of defendants alleged long position in the June Contract. (Compl.HH 81-82.)

Plaintiffs allege the motive and intent underlying defendants’ conduct was to increase financial returns and profit from artificially high prices. (Id. H 92; Pis.’ Mem. Opp’n PIMCO’s Mot. Dismiss 7.) Throughout the class period, May 9, 2005 to June 30, 2005, the pricing relationships and trading behavior of the June Contract and/or the CTD Note exhibited anomalies, which plaintiffs alleged evinced an artificial market. (Compl. H 62-73; Pis.’ Mem. Supp. Mot, Class Cert. 4.)

[474]*474 Discussion

Plaintiffs have moved for class certification pursuant to Rule 23. Additionally, defendants have moved to dismiss the complaint pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted.

I. Motion for Class Certification

Before discussing the merits of plaintiffs’ motion for class certification, two preliminary arguments that have been raised by defendants will be considered. Defendants argue that plaintiffs lack standing to bring their individual actions, and that the class definition is fatally flawed because it includes persons that have not been injured by defendants alleged manipulation of the June Contract.

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Bluebook (online)
244 F.R.D. 469, 2007 U.S. Dist. LEXIS 56389, 2007 WL 2228696, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kohen-v-pacific-investment-management-co-llc-ilnd-2007.