Plaintiffs in FX benchmark rate fixing case oppose DOJ’s request for discovery stay extension

Maria Nikolova

The plaintiffs in the case targeting banks like JPMorgan and Citi are unaware how the depositions would interfere in the DOJ’s criminal proceedings.

Plaintiffs in a Forex benchmark rate fixing case targeting banks like JPMorgan Chase & Co. (NYSE:JPM), Citigroup Inc (NYSE:C), Bank of America Corp (NYSE:BAC), and HSBC, are opposing the latest request by the United States Department of Justice (DOJ) for a three-month extension of the limited discovery stay in the lawsuit.

On Friday, March 16, 2018, the plaintiffs filed a Letter with the New York Southern District Court, arguing that the depositions they ask for are crucial to the plaintiffs. The plaintiffs state they have no reason, and are unaware of any reason, how the depositions would interfere, in any way, in the proceedings by the Department of Justice, and that delays of depositions always carry with them the prospects of witnesses either changing positions, memory loss, and/or availability.

The plaintiffs say they have advised the defendants of the specific persons to be deposed on numerous occasions, including the Case Management and Scheduling Plan, Status Reports, and the Notices of Deposition.

In conclusion, the Court has ordered that the case would be governed by a protective order. Therefore, to the extent that the attorneys and witnesses are prohibited from revealing to others the scope and nature of the depositions, it cannot be said by the Government that such a situation would interfere with any ongoing investigations, the plaintiffs state.

Let’s recall that the plaintiffs had previously indicated their intentions to take depositions from:

  • Stuart Alderoty, Esq., former Senior Executive Vice President and General Counsel, HSBC Bank USA, N.A.;
  • Marc Moses, Executive Director and Group Chief Risk Officer, HSBC Holdings plc;
  • James Fuqua, Esq., General Counsel, UBS Securities LLC, Investment Bank Americas;
  • Axel Weber, Chairman of the Board of Directors, UBS Group AG;
  • Matthew Fitzwater, Esq., Global Head of Litigation, Investigations, and Enforcement, Barclays PLC;
  • Rohan Weerasinghe, Esq., General Counsel and Corporate Secretary, Citigroup, Inc.;
  • Stephen Cutler, Esq., former General Counsel and current Vice Chairman, JPMorgan Chase & Co.;
  • James Esposito, Esq., Global General Counsel, NatWest Markets and General Counsel (Americas), Royal Bank of Scotland.

In December, the Court sided with the Department of Justice and granted its application for a discovery stay. Now, the DOJ is seeking to prolong the stay again.

The plaintiffs in this case, however, managed to secure an important win earlier this week, as Judge Schofield issued an Order which denied the Motion to Dismiss launched by the defendant banks in this case.

The Judge found that the plaintiffs’ third amended complaint sufficiently pleads antitrust injury because it alleges facts supporting a reasonable inference that the foreign currency consumer retail market in which the plaintiffs participated was directly restrained by the banks’ alleged manipulation of FX benchmark rates.

The action, captioned Nypl v. JP Morgan Chase & Co. et al (1:15-cv-09300), is 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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