The opinion
SAN FRANCISCO, CALIFORNIA 94104
Via ECF
November 12, 2020
The Honorable Lorna G. Schofield
Southern District of New York
Thurgood Marshall U.S. Courthouse
40 Foley Square
New York, New York 10007
Re: John Nypl, et al. v. JP Morgan Chase & Co et al., No. 15-cv-9300 (LGS)
Dear Judge Schofield:
Pursuant to this Court’s Individual Rules and Procedures for Civil Cases, ¶ III.A and the
Court’s November 4, 2020, Order (Dkt. No. 683), the Nypl Plaintiffs respectfully submit this pre-
motion conference letter seeking an order from the Court requiring UBS, who was the amnesty
applicant in the FOREX case, and Citigroup, Barclays, Bank of America, RBS, and HSBC, all of
whom gave cooperation to the FOREX Plaintiffs to materially assist them in prosecuting their
case against the remaining co-conspirators, to comply with this Court’s specific Order of three
years ago on September 17, 2017 (Dkt. No. 216), which states in pertinent part as follows:
“ORDERED that Defendants shall produce documents produced to plaintiffs in In re Foreign
Exchange Benchmark Rates Antitrust Litigation, No. 13 Civ. 7789 (“FOREX”) either in the
course of the litigation or pursuant to their settlement agreements, except documents comprising
trade data.”
Notwithstanding the evasion by UBS to verify that it was in fact the amnesty applicant in
the FOREX case, it is factually established beyond dispute in the declaration of Christopher M.
Burke and Michael D. Hausfeld, Lead Counsel in the FOREX case, that “UBS was the amnesty
applicant under the DOJ’s leniency program.” See In re FOREX, 1:13-CV-07789-LGS (ECF
481) October 22, 2015, page 21, para. 66. As the amnesty applicant in that case pursuant to The
Antitrust Criminal Penalty Enhancement and Reform Act (“ACPERA”), Pub. L. No. 108-237,
tit. II 118 Stat. 661 (2004) which reduces potential damages liability for the amnesty applicant if
it provides “satisfactory cooperation” to plaintiffs (Id. at §213), UBS was required to provide
“satisfactory cooperation” to the plaintiffs, which cooperation “shall include”:
(1)providing a full account to the claimant of all facts known to the applicant or
cooperating individual, as the case may be, that are potentially relevant to the civil action;
(2)furnishing all documents or other items potentially relevant to the civil action that are
in the possession, custody, or control of the applicant or cooperating individual, as the
case may be, wherever they are located; and
(3) (A) in the case of a cooperating individual—
(i)making himself or herself available for such interviews, depositions, or
testimony in connection with the civil action as the claimant may
reasonably require;
(ii)responding completely and truthfully, without making any attempt
either falsely to protect or falsely to implicate any person or entity, and
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all questions asked by the claimant in interviews, depositions, trials, or any
other court proceedings in connection with the civil action; or
(B) in the case of an antitrust leniency applicant, using its best efforts to secure
and facilitate from cooperating individuals covered by the agreement the
cooperation described in clauses (1) and (11) and subparagraph (A).
ACPERA, § 213(b)(1)-(3); see, In re Aftermarket Automotive Lighting Products Antitrust
Litigation, Case No. 09 MDL 2007-GW(PJWx), 2013 WL 2013 WL 4536569, at *4 (C.D. Cal.
Aug. 26, 2013) (noting that ACPERA “requires more” than “compliance with discovery
obligations under the federal rules.”’)
The FOREX declaration establishes that UBS, “proffered additional collusive conduct,
including manipulation of multiple currency pairs (including fixing bid-ask spreads) throughout
the day, in addition to existing allegations of fixing benchmark rates. UBS also identified
additional banks and other market participants they knew to have participated in the conspiracy,
as well as additional chat rooms where some of the collusive conduct occurred.” Jd. at J 68.
UBS was required to provide, “cooperation not only as to the conduct alleged in the then-
operative CAC (i.e., fixing of FX benchmark rates), but also additional conduct related to the FX
market.” Jd. at 69. In addition, the FOREX declaration notes that “UBS’s continuing
cooperation will materially assist Class Plaintiffs in prosecuting the Action against the Non-
Settling Defendants.” /d. at § 74.
The NypIl Plaintiffs have been substantially prejudiced over the last three years, from the
date of this Court’s Order of September, 2017, by reason of Defendants’ failure to accord to
them the cooperation of these Defendants in all respects that was provided to the other FOREX
Plaintiffs, including their proffers of proof, the interviews of their employees and the confessions
of their guilt. The Nypl Plaintiffs are the representatives of the putative class of all the
consumers and businesses who have been cheated by the admitted unlawful conduct and
contumacious disregard of the law of these major banks. These Defendants must be compelled
to obey the Order of this Court requiring that they “shall produce documents produced to the
plaintiffs in” the FOREX case.
In accordance with the Court’s September 17, 2017, Order, the Nyp/ Plaintiffs
respectfully move that this Court compel UBS, and the others Defendants listed above, to
produce to the Nyp/ Plaintiffs the same information that UBS provided to the FOREX plaintiffs
and, that at least UBS use its “best efforts to secure and facilitate” the production of witnesses to
participate “in interviews, depositions, trials, or any other court proceedings in connection with
the civil action.” ACPERA, § 213(b)(1)-(3).
pre-motion letter is construed as a motion to compel and is
All fact discovery was to be completed by July 20, 2020, (Dkt. No.
and the Court only permitted limited fact discovery after the July 20, — Respectfully submitted:
deadline pursuant to the Order at Dkt. No. 645. Pursuant to the
November 4, 2020, Order at Dkt. No. 683, fact discovery is now
and any requests for additional discovery are untimely. Plaintiffs’ By: /s/ Joseph M. Alioto
to compel Defendants to produce documents in response to the Joseph M. Alioto
September 7, 2017, Order at Dkt. No. 216 -- issued more than three
ago and in advance of the deadline for the completion of all fact
-- is untimely.
November 13, 2020 LY] J. 4 TT
New York, New York