On February 9, 2023, the First Department issued a decision in Williams v. Citigroup, Inc., 2023 NY Slip Op. 00752, holding that without direct evidence of a conspiracy, a plaintiff must provide evidence that tends to exclude the possibility that the alleged conspirators were acting independently, explaining:
[T]he evidence relied upon by defendants does not give rise to the inference that they conspired to boycott plaintiff’s structure.
In opposition, plaintiff failed to raise a triable issue of fact as to the necessary element of concerted action among defendants in the form of a conscious commitment to a common scheme designed to achieve an unlawful objective. Contrary to plaintiff’s contention, the motion court applied the proper standard in stating that, in the absence of direct evidence of a conspiracy, plaintiff had to point to evidence that tends to exclude the possibility that the alleged conspirators were acting independently. Plaintiff failed to submit evidence from which an unlawful arrangement could be inferred. Notably, defendants JP Morgan and Goldman Sachs actively marketed plaintiff’s structure to clients with no success, undermining plaintiff’s claim that they had a motive to participate in a boycott of the structure.
(Internal quotations and citations omitted).