NY Court quashes several deposition notices in FX benchmark rate fixing case

Maria Nikolova

The Court quashed, inter alia, the plaintiffs’ deposition notice on Axel Weber, as well as the notice on Bank of America and Merrill Lynch, Pierce, Fenner & Smith Inc.

Shortly after it became clear that the parties in a Forex benchmark rate fixing case disagree on the scope of depositions, the Court has issued an order nixing some of the deposition notices.

Let’s recall that this case has been brought by a putative class of consumers and end-user businesses alleging that they paid inflated foreign currency exchange rates caused by an alleged conspiracy among some of the world’s biggest 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.

On February 24, 2020, Judge Lorna G. Schofield of the New York Southern District Court signed an Order, which quashes several of the plaintiffs’ deposition notices:

  • Plaintiffs’ Rule 30(b)(6) notice on Bank of America Corporation and Bank of America, N.A., and non-party Merrill Lynch, Pierce, Fenner & Smith Incorporated.
  • Plaintiffs’ Rule 30(b)(6) notice on HSBC Holdings PLC or HSBC Bank USA, N.A. to the extent the designated topics relate to subject matters other than the January 18, 2018 deferred prosecution agreement between the United States Department of Justice and HSBC Holdings PLC. Topics quashed include those relating to the United States Commodity Futures Trade Commission Order.
  • Topics in any Rule 30(b)(6) notices relating to the accuracy of the at-issue Department of Justice (“DOJ”) press release.
  • Plaintiffs’ Signatory Witness deposition notice on Axel Weber.

In denying the deposition requests, the Court has sided with the defendant banks. For example, Bank of America has opposed the deposition notice on it by arguing that it is not a party to the enumerated plea agreements, and therefore the deposition notice is beyond the stipulated scope of discovery as to it.

Regarding Axel Weber, according to the banks, the proposed deposition of Mr Weber is improper because he did not sign any of the DOJ Agreements. Mr Weber signed a certificate of corporate resolutions of UBS AG relating to UBS’s DOJ Agreement, but he did not sign a plea agreement or deferred prosecution agreement.

By March 16, 2020, the plaintiffs will hav to file a letter with the Court providing further information concerning the relevance of testimony regarding the December 11, 2012 deferred prosecution agreement between the United States Department of Justice, HSBC Holdings PLC, and HSBC Bank USA, N.A.

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