About a month after Deutsche Bank filed a motion to dismiss a complaint filed by former trader Matthew Connolly, he has responded to the bank’s attempt to nix the case.

Mathew Connolly has brought this action for malicious prosecution based on “Deutsche Bank’s calculated conduct, misstatements, and omissions to the DOJ, and the perjured testimony by a Deutsche Bank employee to the jury in the District Court at trial”.

The trader alleges that he was the victim of a deliberate effort by his former employer, Deutsche Bank, to steer a Department of Justice (DOJ) investigation towards him and other lower-level employees and away from the senior executive decision makers.

Connolly says that, at all times, Deutsche Bank knew that its C-Suite and senior executives had directed Deutsche Bank’s LIBOR submission practices and policies. Mid-level traders, including Connolly, trusted and justifiably relied on that direction and those practices, understanding them to be vetted, legal and in compliance with the law.

But when the government began questioning LIBOR’s accuracy, Deutsche Bank allegedly gave the DOJ an incomplete and false map to protect itself and its elite upper-echelon from scrutiny, encouraging and inducing the DOJ to pursue, indict, scapegoat, and prosecute Connolly.

On May 1, 2023, Connolly submitted a memorandum of law in opposition to the motion to dismiss the Amended Complaint of Defendant Deutsche Bank AG.

Connolly says that Deutsche Bank is entitled to the opportunity, at summary judgment or trial, to tell its version of events — that all it did was “mere cooperation with law enforcement” “to come forward and tell the truth.” He argues that at this stage of the case, Deutsche Bank’s counter version of events presents a series of disputed facts and inferences that provide no grounds for dismissal of the Amended Complaint.

In addition to its main factual premise, that it told the government the truth, Deutsche Bank asks this Court to decide other material disputed facts in its favor, including whether the government would have focused on Connolly without the Bank’s direction; whether, without the Bank’s influence, the prosecutors believed that Connolly’s emails were attempts to skew LIBOR to his personal interests; and whether the grand jury was tainted by false evidence presented about Connolly’s alleged personal financial motives. Connolly argues that none of these factual disputes are suitable for a motion to dismiss.

In support of its own version of events, Deutsche Bank also presumes facts, introduces information from outside the Amended Complaint, and asks this Court to draw inferences and conclusions in Deutsche Bank’s favor. This is, again, the opposite of the way a motion to dismiss is to be evaluated, Connolly says.

Further, Connolly claims that Deutsche Bank asks the Court to change the law in its favor. At least three of the main legal arguments on which Deutsche Bank relies depart materially from prevailing case law, he insists. For instance, Deutsche Bank tries to wish into non-existence Judge Marrero’s recent decision denying Citibank’s motion to dismiss a similar malicious prosecution claim in Ramchandani v. Citigroup, Inc.

A court’s function on a motion to dismiss is “not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient,” Connolly explains. Applying that standard, Defendant’s motion fails. Connolly says he sufficiently pleads a claim that meets the relevant standard and is facially plausible. (A complaint will survive a motion to dismiss “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”)

Connolly concludes that because Deutsche Bank’s motion requires deciding disputed facts and significant departures from the prevailing law, it should be denied.