Plaintiffs in FX rate fixing case oppose DOJ request concerning deposition taking

Maria Nikolova

The plaintiffs claim they should be allowed to proceed with deposition taking from senior executives and counsel of top banks, such as Barclays, UBS, RBS, HSBC and JPM.

A Forex benchmark rate fixing case targeting top banks is now hovering around the discovery process, with parties disagreeing on whether the plaintiffs may be allowed to take depositions from certain senior executives and counsel from these banks in an expeditious manner.

Last week, the United States Department of Justice (DOJ) sought to intervene in this dispute by requesting a three-month extension of the discovery stay covering certain depositions. The DOJ argued that its request is reasonable as the scope of the stay appropriately balances the need to protect the integrity of ongoing grand jury investigations and cases with the plaintiffs’ desire for testimonial discovery prior to the class certification phase.

On Tuesday, December 12, 2017, the plaintiffs sent a Letter to the Honorable Lorna G. Schofield, requesting that she overrules the DOJ request and allows them to proceed with deposition taking expeditiously.

Let’s recall that the depositions requested cover:

  • 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.

According to the plaintiffs, the discovery stay extension requested by the DOJ prejudices the interests of consumers, end-users, and businesses.

The plaintiffs note that each of the prospective deponents speaks on behalf of their company and each has asserted to the Federal courts that they are, in effect, the most knowledgeable persons for their respective companies. In addition, the plaintiffs argue that they should be permitted to take the depositions of the traders who recently filed Plea Agreements confessing to their crimes.

According to the plaintiffs, it is also important to be able to gather evidence to be able to present the case in terms of the violation, its impact, and the amount of the damages. These witnesses, singularly and collectively, are dubbed to have evidence which can and will establish these elements of proof.

The case, captioned Nypl v. JP Morgan Chase & Co. et al (1:15-cv-09300), continues at the New York Southern District Court.

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