Kessev Tov v. Doe(s), 2023 WL 4825110 (N.D. Ill. July 27, 2023), is also directly on point. In Kessev Tov, the court found that even allegations that lacked many of the detailed elements in Harrington sufficed to state a claim for spoofing under Section 10(b). It too rejected a number of the very same arguments raised by Defendants here. For example, Kessev Tov denied the defendants’ motion to dismiss despite the fact that it involved spoofing on the market for S&P 500 index options, a similar market to OTC Link and NYSE ARCA Global OTC. Compare Kessev Tov, 2023 WL 4825110 at *1 with Def. Br. at 6-8, 34. Similarly, in rejecting defendants’ claim that “the sizes of the bids and asks” placed by defendants were “relatively small” and “equal on both sides of the market,” the Kessev Tov court held that “even if the orders entered were relatively small, because it was not an active market, these allegedly deceptive orders could still have great effect.” Compare Kessev Tov, 2023 WL 4825110 at *5 with Def. Br. at 26. The Court further held that “[w]hile “layering” or “parking” bids may be one way of proving spoofing, there is no case law that holds it is the only way to do so.” Compare Kessev Tov, 2023 WL 4825110 at *4 with Def. Br. at 15-16. And the Court held that it was irrelevant at the pleading stage that the plaintiff did not identify who specifically benefitted from the spoofing scheme and how much profit they made (id. at *5), and that stock prices may have moved in the opposite direction as the Baiting Orders during a spoofing episode (id. at *6). Compare with Def. Br. at 25-26.
Notably, throughout the Defendants’ Motion they cite extensively to and rely on an earlier decision in Kessev Tov that was superseded by this decision. See Def. Br. at 27-30 (citing Kessev Tov v. Doe(s), 2022 WL 2356626 (N.D. Ill. June 30, 2022)). Despite the fact that the Kessev Tov decision Defendants rely on in their Motion was superseded a month ago, Defendants have not notified the Court that the case is no longer sound law.
Because Plaintiff here alleges not only the same facts held to be sufficient in Harrington and Kessev Tov, but also additional numerous other facts further evidencing that Defendants were engaging in illegal spoofing, (¶¶84, 98, 112, 126, 140, 154, 167, 180, 187, 201, 214, 228, 235, Case 1:22-cv-10185-GHW-GWG Document 123 Filed 08/25/23 Page 22 of 48 16 242, 249, 256, 264), and that virtually all of the objections raised by Defendants here were rejected in Harrington, Kessov Tov or both, Defendants’ motion to dismiss should likewise be denied.
