OPINION AND ORDER This action is brought under section 1 of the Sherman Act by plaintiff Preston Hollow Capital LLC (“Preston Hollow”) who alleges that defendant Nuveen Asset Management LLC (“Nuveen”) conspired with financial institutions to restrain trade in the high-yield segment of the municipal bond market.1 Preston Hollow describes itself as a “burgeoning contender in the high-yield municipal bond market.” Preston Hollow raises capital from equity investors, which it uses to fund purchases of municipal bonds. Nuveen is characterized as one of the world’s largest institutional investors in municipal bonds; it buys bonds principally for placement in mutual funds which, in turn, are sold to customers. In a public offering, issuers of municipal bonds, such as cities or counties, typically enter into an arrangement with one or more financial institutions to act as underwriters of the bonds. These underwriters are buyers of the newly issued bonds from the issuer and then, in their capacity as broker-dealers, are sellers of the bonds into a market with many purchasers, including Preston Hollow and Nuveen. For purposes of this Opinion and Order, the Court will refer to a financial institution who acts as both an underwriter and broker-dealer in the high-yield municipal bond market as a “UBD.” Preston Hollow has adopted a business model in which it seeks to purchase 100 percent of an issuance from the UBDs for a particular issue. This business model would mean that Nuveen would be unable to purchase a particular issue of a high yield municipal bond from the UBDs. This, according to the Complaint, was not to Nuveen’s liking and it allegedly set out to induce UBDs not to sell out the entirety of an issue to Preston Hollow under the threat that, if it did so, Nuveen would not do business with them. The Complaint describes this as organizing a group boycott of Preston Hollow. As a result of Nuveen’s conduct, Preston Hollow asserts that it has suffered approximately $100 million in damages. In February 2019, Preston Hollow sought injunctive relief in the Delaware Court of Chancery based largely on the same underlying conduct alleged in this action. After a full trial on the merits, the Delaware court held that Nuveen was liable for tortious interference with Preston Hollow’s business relations but declined to enter a permanent injunction finding that there was not a risk of future harm. In this action, Preston Hollow asserts that Nuveen’s conduct constituted a conspiracy to restrain trade in violation of section 1 of the Sherman Act under either the per se rule or the rule of reason. It also brings those same claims against Nuveen under New York’s Donnelly Act. Additionally, Preston Hollow asserts a claim of tortious interference with prospective business relations against defendant John Miller, the head of Nuveen’s municipal bond department. Nuveen moves to dismiss the Complaint pursuant to Rule 12(b)(6), Fed. R. Civ. P. It urges that certain claims are barred by res judicata or under principles of judicial estoppel and that the Sherman Act and Donnelly Act claims fail to state either a per se or rule of reason claim. For reasons to be explained, Nuveen’s motion will be denied. BACKGROUND A. The Municipal Bond Market. Preston Hollow and Nuveen are competitors in the “high-yield” segment of the municipal bond market. (Compl. 2). Municipal bonds are debt securities issued by cities, states and other governmental or non-profit entities. (Compl. 19). These entities utilize municipal bonds to fund both day-to-day obligations and finance specific projects such as building a school. (Compl. 19). Interest paid to investors on the bonds is generally exempt from federal taxes and sometimes exempt from state taxes. (Compl. 19). Although the Complaint at times conflates the terms “underwriter,” “investment banker,” and “broker-dealer,” it asserts that these are roles all occupied by a group of large financial institutions or UBDs. (Compl.
28, 39-40). But of key importance for purposes of the present motion, neither Preston Hollow nor Nuveen are alleged to have acted as an “underwriter,” “investment banker,” or “broker-dealer” in connection with a municipal bond offering that is the subject of this Complaint. (Compl.
