Parties in FX benchmark rate fixing case clash over “foreign currency retail transaction” meaning
The parties in the case disagree on whether foreign currency retail transactions should mean transactions involving foreign currency physically received at banks’ branches within the United States for U.S. Dollars.
Evidence disputes continue to play an important part in the Forex benchmark rate fixing case, captioned Nypl v. JP Morgan Chase & Co. et al (1:15-cv-09300), which continues at the New York Southern District Court. On Tuesday, January 23, 2018, the plaintiffs in the case which targets some of the world’s major banks filed a Letter with the Court reiterating their requests for production of documents.
Last year, the plaintiffs have submitted the following list of topics for retail discovery to the defendant banks:
- Request No. 1: Summaries of the dollar volume of foreign currency retail transactions for each year during the period January 1, 2007 – present and the number of transactions per year and number of customers;
- Request No. 2: Documents sufficient to show the method for calculating the foreign currency exchange rates charged to retail customers during the period January 1, 2007 – present and the individuals who developed or managed that method;
- Request No. 3: The profit and loss statements for retail transactions for the period January 1, 2007 – present;
- Request No. 4: Documents sufficient to show the personnel in charge of the retail foreign currency operations January 1, 2007 – present;
- Request No. 5: Executive summaries of foreign currency retail operations and any executive summaries to management or the board of directors mentioning, relating or referring to retail foreign currency transactions January 1, 2007 – present.
The non-foreign defendant banks have objected to these demands. Let’s recall that the list of non-foreign defendants that served responses to the plaintiffs’ requests for production of documents includes: JPMorgan Chase & Co., JPMorgan Chase Bank, N.A., Barclays Capital, Inc., Citibank, N.A., Citigroup, Inc., Bank of America Corporation, Bank of America, N.A, HSBC Bank USA, N.A., and HSBC North America Holdings, Inc.
Previously, the plaintiffs sought to amplify Request No. 2 (see above) as “including all instructions or directions to branches, subsidiaries or affiliates as to how to process foreign currency exchanges or sales”. The banks had objected to such amplification and the Court denied it as moot and premature. The plaintiffs now note that such an amplification is ripe.
The non-foreign bank defendants insists that the plaintiffs’ requests for production of documents are ambiguous. The banks purport to construe foreign currency ‘retail transactions’ to mean transactions involving foreign currency “physically received” at their branches within the United States for “U.S. Dollars”.
The plaintiffs argue that the “physically received” at branches and “U.S. Dollar” limitations are contrary to the promotional advertisements that each of the Non-Foreign Bank Defendants make on the Internet to United States consumers and businesses urging them to purchase foreign currency over the Internet, ATM network, wire transfer or by telephone, billed to their address in the United States.
According to the plaintiffs, the Court should disallow Defendants’ “physically received” at branches and “U.S. Dollar” limitations as to the production of documents related to retail transactions, and require production of retail transaction documents and transactional data involving foreign currency purchases made by Plaintiff consumers and businesses who reside in the United States, billed to them in the United States by the Non-Foreign Bank Defendants.
This is not the first time the parties in this case clash over evidence. Even the Department of Justice has intervened in the discovery process.
