In re Foreign Exchange Benchmark Rates Antitrust Litigation

USONUITTEHDE RSTNA DTIESST RDIICSTT ROIFC TN ECWOU YROTR K

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In re FOREIGN EXCHANGE BENCHMARK : 13 Civ. 7789 (LGS)

RATES ANTITRUST LITIGATION. :

: ORDER

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LORNA G. SCHOFIELD, District Judge:

WHEREAS, on August 19, 2022, the parties filed their respective proposed verdict forms

along with supporting pretrial memoranda.

WHEREAS, on August 23, 2022, the parties filed a joint letter seeking an extension of

time until September 2, 2022, to respond to each other’s pretrial memoranda.

WHEREAS, Defendants Credit Suisse Group AG, Credit Suisse AG and Credit Suisse

Securities (USA) LLC (“Credit Suisse” or the “CS Defendants”) propose a one-question verdict

form that asks the jury to decide only whether Plaintiffs have proven a conspiracy exactly as

alleged in the Complaint, i.e., a conspiracy that lasted the full class period and involved all

sixteen defendant banks and fifty-two currency pairs. Defendants also propose jury instructions

to the effect that, if Plaintiffs fail to prove any of the particulars of the alleged conspiracy, the

jury should render a verdict for Defendants (Dkt. No. 1811-2, 1812-2).

WHEREAS, Plaintiffs propose a highly detailed verdict form that asks the jury whether

they find the existence of any conspiracy and, if so, to identify the relevant time period, the

conspirator banks and the currency pairs encompassed by the conspiracy (Dkt. No. 1812-1).

WHEREAS, the two certified issues are: “(1) the existence of a conspiracy to widen

spreads in the spot market and (2) the CS Defendants’ participation in the conspiracy,” In re

Foreign Exch. Benchmark Rates Antitrust Litig., 407 F. Supp. 3d 422, 436 (S.D.N.Y. 2019).

WHEREAS, neither proposal is required by the applicable substantive law, and both

would likely focus the jury unnecessarily on specific currency pairs. To prevail on the certified

issues, Plaintiffs need only prove “a combination or some form of concerted action between at

least two legally distinct economic entities” for the purpose of fixing spreads in the FX spot

market, in which Credit Suisse joined. See United States v. Am. Express Co., 838 F.3d 179, 193

(2d Cir. 2016) (cleaned up); In re Vitamin C Antitrust Litig., 8 F.4th 136, 147 (2d Cir. 2021)

(‘“Price-fixing agreements . . . are per se unlawful.”).

WHEREAS, the Court is considering a verdict form comprising, in substance, the first six

questions in Plaintiffs’ proposed verdict form, as in the attached Court Draft 1. It is hereby

ORDERED that the parties’ request in their joint letter at Dkt. No. 1838 is GRANTED.

The parties shall file responses to pretrial memoranda by September 2, 2022. In those responsive

memoranda, which shall not exceed 20 pages, the parties shall include any objections to the

Court’s proposed verdict form at Court Draft 1, attached.

Dated: August 25, 2022

New York, New York

UNITED STATES DISTRICT JUDGE

Court Draft 1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

IN RE FOREIGN EXCHANGE No. 1:13-ev-07789-LGS

BENCHMARK RATES ANTITRUST

LITIGATION

SPECIAL VERDICT FORM

We, the jury, unanimously find as follows on the questions submitted to us:

Question 1: Did Plaintiffs prove, by a preponderance of the evidence, the existence of a

conspiracy to widen, fix, stabilize, or maintain bid-ask spreads in the FX spot market?

Yes No

Please continue to Question 2 only if you entered a “YES” response to Question I. If you entered

a “NO” response, your deliberations are complete.

Question 2: Did Plaintiffs prove, by a preponderance of the evidence, that Credit Suisse

knowingly participated in the conspiracy you found in response to Question 1?

Yes No

Please continue to Question 3 only if you entered a “YES” response to Question 2. If you entered

a “NO” response, your deliberations are complete.

Question 3: Did Plaintiffs prove, by a preponderance of the evidence, that the conspiracy you

found in response to Question 1 existed between December 1, 2007 and December 31, 2013

(inclusive)?

_______________ _______________

Yes No

Please continue to Question 4 only if you entered a “No” response to Question 3. If you entered

a “Yes” response, please continue to Question 5.

Question 4: If you did not find the conspiracy existed between December 1, 2007 and December

12, 2013, please state the time period during which the conspiracy you found in response to

Question 1 existed?

______________________________________________________________________________

Please continue to Question 5.

Question 5: Did Plaintiffs prove, by a preponderance of the evidence, that Credit Suisse

knowingly participated in the conspiracy you found, in response to Question 1 and Question 2,

with 15 other banks specified in Attachment A?

_______________ _______________

Yes No

Please continue to Question 7 only if you entered a “YES” response to Question 5. If you entered

a “NO” response, please continue to Question 6.

Question 6: For each of the following banks, did Plaintiffs prove, by a preponderance of the

evidence, that the bank identified below knowingly participated in the conspiracy you found in

response to Question 1 and Question 2 with Credit Suisse?

Bank of America _____ _____

Yes No

Bank of Tokyo-Mitsubishi _____ _____

Yes No

Barclays _____ _____

Yes No

BNP Paribas _____ _____

Yes No

Citigroup _____ _____

Yes No

Deutsche Bank _____ _____

Yes No

Goldman Sachs _____ _____

Yes No

HSBC _____ _____

Yes No

JPMorgan _____ _____

Yes No

Morgan Stanley _____ _____

Yes No

RBC _____ _____

Yes No

RBS _____ _____

Yes No

Société Générale _____ _____

Yes No

Standard Chartered _____ _____

Yes No

UBS _____ _____

Yes No

ATTACHMENT A

List of Banks

1. “Bank of America” includes Bank of America Corporation, Bank of America, N.A., and

Merrill Lynch, Pierce, Fenner & Smith Incorporated.

2. “Bank of Tokyo-Mitsubishi” includes: the Bank of Tokyo-Mitsubishi UFJ, Ltd.

3. “Barclays” includes Barclays Bank PLC and Barclays Capital Inc.

4. “BNP Paribas” includes BNP Paribas Group, BNP Paribas North America Inc., BNP Paribas

Securities Corp., and BNP Prime Brokerage, Inc.

5. “Citigroup” includes Citigroup Inc., Citibank, N.A., Citicorp, and Citigroup Global Markets

Inc.

6. “Deutsche Bank” includes Deutsche Bank AG.

7. “Goldman Sachs” includes the Goldman Sachs Group, Inc. and Goldman, Sachs & Co.

8. “HSBC” includes HSBC Holdings PLC, HSBC Bank PLC, HSBC North America Holdings

Inc., HSBC Bank USA, N.A., and HSBC Securities (USA) Inc.

9. “JPMorgan” includes JPMorgan Chase & Co. and JPMorgan Chase Bank, N.A.

10. “Morgan Stanley” includes Morgan Stanley, Morgan Stanley & Co. LLC, and Morgan

Stanley &Co. International PLC.

11. “RBC” includes RBC Capital Markets LLC.

12. “RBS” includes The Royal Bank of Scotland Group PLC, The Royal Bank of Scotland PLC,

and RBS Securities Inc.

13. “Société Générale” includes Société Générale S.A.

14. “Standard Chartered” includes Standard Chartered Bank.

15. “UBS” includes UBS AG, UBS Group AG, and UBS Securities LLC.