DOJ’s request for discovery stay extension in FX benchmark rate fixing case faces opposition

Maria Nikolova

The plaintiffs in a case targeting some of the world’s major banks note that the stays resulting from the DOJ’s requests have extended over a period of more than two years already.

The plaintiffs in a Forex benchmark rate manipulation case targeting several of the world’s major banks are now fearing amnesia claims by some individuals they want to depose as a result of the numerous stays of discovery proceedings imposed as a result of requests by the United States Department of Justice (DOJ).

Earlier this month, the DOJ asked for another extension of the discovery stay in the case targeting financial institutions like HSBC, Citi and JPMorgan.

Under the terms of the stay granted in June, depositions and interviews of current and former employees of Citibank, JPMorgan Chase, Barclays, RBS, UBS, BNP Paribas, and HSBC, are stayed. The stay bars depositions of signatories to the May 2015 corporate plea agreements, which plaintiff counsel in the case at hand has proposed to take.

On Monday, September 24th, the plaintiffs in the case captioned Nypl v. JP Morgan Chase & Co. et al (1:15-cv-09300), filed their opposition to the DOJ’s request with the New York Southern District Court.

The plaintiffs argue that this would be yet another stay that continues a palpable prejudice inflicted upon the victims of the banks and these victims’ efforts to recover what was stolen from them. This is especially so, they say, since an integral part of the Plea Agreements and Deferred Prosecution Agreement provide that the civil actions are to be the means used to satisfy the requirements of Restitution.

The Nypl plaintiffs state that the trials listed by the DOJ and those anticipated by the DOJ – for instance, the one against the “FX Cartel”, must have already completed their investigations and are ready with the evidence it believes is sufficient to convict those defendants beyond a reasonable doubt. Hence, any depositions by the Nypl Plaintiffs are said to not be interfering with any ongoing investigations by the DOJ.

“The piecemeal stays sought by the Department and granted by this Court have extended over a period of over two years. Some of those signatories are no longer employees of the defendants. The Nypl Plaintiffs fear pretentions of amnesia as it is. The request by the Department would only contribute to that kind of proclivity”, the plaintiffs argue.

Let’s recall that this lawsuit was brought on behalf of a putative class of consumers and end-user businesses alleging that they paid inflated foreign currency exchange rates caused by an alleged conspiracy among the defendant banks to fix prices of FX benchmark rates in violation of Section 1 of the Sherman Antitrust Act, 15 U.S.C. sec. 1 et seq.

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