United States Court of Appeals For the Second Circuit

August Term 2021

Argued: December 6, 2021 Decided: July 20, 2022

No. 21-853

GAMMA TRADERS - I LLC, individually and on behalf of all others similarly situated, VEGA TRADERS LLC, individually and on behalf of all others similarly situated, MICHAEL PATTERSON,

Plaintiffs-Appellants,

ROBERT CHARLES CLASS A, L.P., ROBERT L. TEEL, YURI ALISHAEV, ABRAHAM JEREMIAS, individually and on behalf of all others similarly situated, MORRIS JEREMIAS, individually and on behalf of all others similarly situated,

Consolidated Plaintiffs-Appellants,

v.

MERRILL LYNCH COMMODITIES, INC., BANK OF AMERICA CORPORATION, MORGAN STANLEY & CO. LLC, EDWARD BASES, JOHN PACILIO,

Defendants-Appellees. ∗

Appeal from the United States District Court for the Southern District of New York No. 19-cv-6002, Lewis J. Liman, Judge.

∗ The Clerk of Court is respectfully directed to amend the caption as set forth above. Before: LYNCH, CARNEY, AND SULLIVAN, Circuit Judges.

Plaintiffs-Appellants brought this suit under the Commodity Exchange Act, alleging that the Defendants-Appellees engaged in fraudulent trading tactics – to Plaintiffs’ detriment – in markets for precious metals. The district court (Lewis J. Liman, Judge) granted Defendants’ motion to dismiss under Rule 12(b)(6) for failure to state a claim, concluding that Plaintiffs’ claims are time-barred and that Plaintiffs did not adequately plead that they were injured by Defendants’ fraudulent trading activity. On appeal, Plaintiffs contend that their claims took years to accrue, and were therefore timely, because they were not on notice of their injury. They separately argue that they have adequately pleaded that Defendants’ fraud injured them, both because they traded at such high volume that it is plausible that Plaintiffs were executing trades while prices were being artificially manipulated through Defendants’ fraud, and also because records from other investigations show that on at least nine dates, Plaintiffs traded in the same markets that Defendants were manipulating. Because neither of Plaintiffs’ theories, alone or in combination, adequately alleges that Defendants’ trading activities injured them, we affirm the district court’s dismissal of their complaint for failure to plead an injury. We do not reach the question of whether Plaintiffs’ claims are time-barred. We also reject Plaintiffs’ belated and procedurally improper request for another opportunity to amend their complaint.

AFFIRMED.

ERIC F. CITRON, Goldstein & Russell, P.C., Bethesda, MD (Deborah Clark-Weintraub, Max R. Schwartz, Thomas L. Laughlin, IV, Jeffrey P. Jacobson, Scott+Scott Attorneys at Law LLP, New York, NY; Daniel Woofter, Goldstein & Russell, P.C., Bethesda, MD; Vincent Briganti, Margaret MacLean, Lowey Dannenberg, P.C., White Plains, NY, on the briefs), for Plaintiffs-Appellants Gamma Traders - I LLC, et al.

RICHARD F. SCHWED (Adam S. Hakki, on the brief), Shearman & Sterling LLP, New York, NY, for

2 Defendants-Appellees M