# In re Foreign Exchange Benchmark Rates Antitrust Litigation

> District Court, S.D. New York · August 31, 2022

URL: https://www.frixlaw.com/law-library/cases/10343981

## Case

- **Court:** District Court, S.D. New York
- **Decided:** August 31, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10343981

## How later opinions describe it (automated extraction)

- finding Seventh Amendment problem in “proposed separation of the issues of negligence and comparative negligence”

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--- --------------------------------------------------------- X
: 13 Civ. 7789 (LGS)
IN RE FOREIGN EXCHANGE BENCHMARK :
RATES ANTITRUST LITIGATION : OPINION AND ORDER
:
------------------------------------------------------------ X

LORNA G. SCHOFIELD, District Judge:
This case concerns an alleged conspiracy among banks to fix prices in the foreign
exchange (“FX”) market. On September 3, 2019, a so-called issue class was certified under
Federal Rule of Civil Procedure 23(c)(4) with respect to two issues: (1) the existence of a
conspiracy to widen spreads in the FX spot market and (2) participation in the conspiracy by
Defendants Credit Suisse Group AG, Credit Suisse AG and Credit Suisse Securities (USA) LLC
(collectively, “Credit Suisse”). In re Foreign Exch. Benchmark Rates Antitrust Litig. (“Forex”),
407 F. Supp. 3d 422 (S.D.N.Y. 2019). Credit Suisse moves to decertify the class. For the
reasons below, the motion is denied.
BACKGROUND
Familiarity with the underlying facts and procedural history is assumed. See, e.g., Forex,
No. 13 Civ. 7789, 2022 WL 294118 (S.D.N.Y. Feb. 1, 2022) (denying cross-motions for
summary judgment); Forex, 2016 WL 5108131 (S.D.N.Y. Sept. 20, 2016) (granting in part and
denying in part motion to dismiss); Forex, 74 F. Supp. 3d 581 (S.D.N.Y. 2015) (same).
Most of the relevant facts are recounted in detail in the Opinion and Order granting class
certification. Forex, 407 F. Supp. 3d at 426-28. In brief, the Complaint alleges that Defendants
conspired to widen spreads in the FX spot market. In the FX market, certain participants called
“market makers” or “liquidity providers” make themselves available both to buy and sell a given
currency pair (such as euro/dollar, a/k/a “EUR/USD”). A liquidity provider quotes a “bid” price
at which it is willing to buy and an “ask” price at which it is willing to sell. The difference
between those prices is the “bid-ask spread,” or simply the “spread.” In general, a wider spread
results in greater profit for the liquidity provider, as it buys lower and sells higher. Defendant
banks, including Credit Suisse, allegedly used chat rooms to fix spreads for certain currency

pairs. Fifteen of the sixteen Defendant banks have settled for over $2.3 billion, leaving Credit
Suisse as the sole non-settling Defendant.
On March 1, 2019, Plaintiffs moved to certify two classes. On September 3, 2019, the
Court denied certification of the “Exchange Class” for all purposes and certified the “OTC
Class” for adjudication of only two issues under Rule 23(b)(3) and 23(c)(4). Id. at 440.
The “OTC Class” was not certified for all issues because individualized inquiries were
found to be necessary to determine, for each trade, (1) whether it took place “in the United
States” for purposes of the Foreign Trade Antitrust Improvements Act, 15 U.S.C. § 6a, (2)
whether it was a “resting order” or “benchmark trade” excluded from the class; and (3) whether a
Defendant provided liquidity. Id. at 431-35. Plaintiffs argued that the existence of a conspiracy

and its class-wide effect could be established with common proof, and damages could be
calculated with common formulae. Id. at 435-36. Rule 23(b)(3) certification was denied
because those common issues did not predominate over the above individual issues. Id. at 436.
Two issues were certified for resolution on a class-wide basis: (1) the existence of a
conspiracy to widen spreads and (2) participation in the conspiracy by Credit Suisse. Id. The
Court found that class-wide resolution of those issues could resolve or significantly narrow the
case for individual claimants. If Credit Suisse proved it did not join such a conspiracy, all claims
against it would be resolved. If Plaintiffs proved that Credit Suisse did conspire, that issue
would be resolved efficiently in advance of individual lawsuits. Id. at 437. Common issues
were found to predominate because class-wide adjudication of only the two certified issues does
not require addressing individual issues. An issue class was found to be superior to requiring
future individual claimants to present the same proof or to persuade courts to apply non-mutual
collateral estoppel. See id. at 438. Credit Suisse now moves to decertify the OTC issue class.

STANDARD
A class may be certified only if it satisfies the prerequisites of Rule 23(a), which are not
at issue on this motion. The class also must be ascertainable, or capable of definition “by
objective criteria.” In re Petrobras Sec., 862 F.3d 250, 264 (2d Cir. 2017); de Lacour v. Colgate-
Palmolive Co., No. 16 Civ. 8364, 2021 WL 1590208, at *4 (S.D.N.Y. Apr. 23, 2021). And a
class must satisfy at least one of the provisions of Rule 23(b). Rule 23(b)(3) permits
certification if (1) “questions of law or fact common to class members predominate over any
questions affecting only individual members” and (2) “a class action is superior to other
available methods for fairly and efficiently adjudicating the controversy.” Pursuant to Rule
23(c)(4), a class action also may be maintained “with respect to particular issues.”

A district court’s “order denying or granting class status is inherently tentative” and is
“subject to revision.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 n.11 (1978); see Mazzei
v. Money Store, 829 F.3d 260, 266 (2d Cir. 2016). A “district court has the affirmative ‘duty of
monitoring its class decisions in light of evidentiary development of the case’” and “may
decertify a class if it appears that the requirements of Rule 23 are not in fact met.” Mazzei, 829
F.3d at 266; accord Jin v. Shanghai Original, Inc., 990 F.3d 251, 262 (2d Cir. 2021). The
plaintiff bears the burden of proof, Mazzei, 829 F.3d at 270, and must establish the Rule 23
requirements by a preponderance of the evidence, Petrobras, 862 F.3d at 260.
DISCUSSION
A. Timeliness
Credit Suisse’s motion is an untimely request for reconsideration, not a timely motion for
decertification. Credit Suisse does not argue that a “previously satisfied requirement of Rule 23

is now lacking.” Jin, 990 F.3d at 262. Credit Suisse instead argues that Rule 23 was never
satisfied and that the class certification decision was wrong, but Credit Suisse did not move for
reconsideration within fourteen days or seek leave to appeal. See Local Civil Rule 6.3; Fed. R.
Civ. P. 23(f). While an intervening event is not required to decertify a class, Credit Suisse has
not pointed to any relevant changed circumstances that would affect the previous certification.
See Jin, 990 F.3d at 262. Credit Suisse cites interrogatories that were not answered and expert
opinions not proffered and relies on legal arguments that have been available to it for years.
Even in the context of class actions, “interests of finality and conservation of scarce judicial
resources” place some limits on motions for reconsideration. Cates v. Trustees of Columbia
Univ., No. 16 Civ. 6524, 2021 WL 964417, at *1 (S.D.N.Y. Mar. 15, 2021).

Despite the untimeliness of Credit Suisse’s motion, in light of a court’s special duty when
a proceeding will bind absent class members, the motion is addressed on the merits below.
B. Ascertainability
The OTC Class is ascertainable because it is “defined using objective criteria that
establish a membership with definite boundaries.” Petrobras, 862 F.3d at 264. The criteria for
class membership are: (1) “10 or more FX spot, forward, and/or swap trades,” (2) “directly with
one or more Defendants,” (3) “in the 52 Affected Currency Pairs,” (4) “via voice or on a single-
bank platform,” (5) “where Defendants provided liquidity,” (6) where “such persons [i.e. class
members] were either domiciled in the United States or its territories or, if domiciled outside the
United States or its territories, traded in the United States or its territories,” (7) during the class
period, “December 1, 2007 and December 31, 2013.” Forex, 407 F. Supp. 3d at 440 (certifying
the class). Each criterion is objective, and together they form definite boundaries of a class.
Contrary to Credit Suisse’s argument, the need for individual inquiries to determine class

membership is irrelevant to ascertainability. Petrobras, 862 F.3d at 264 (“[A] freestanding
administrative feasibility requirement is neither compelled by precedent nor consistent with Rule
23 . . . .”). In Petrobras, the class was limited to purchasers of certain securities “in domestic
transactions.” 862 F.3d at 259. The court held that the class was ascertainable because the
“domesticity” criterion was objective and definite, even though it also found that domesticity
was “an ‘individual question’ requiring putative class members to ‘present evidence that varies
from member to member,’” in “mini-hearings.” Id. at 269-70, 272 (“Appellants vigorously
challenge the practicality of making the domesticity determination for each putative class
member, but as we explain above, the ascertainability analysis is limited to narrower question of
whether those determinations are objectively possible.”); see In re Aluminum Warehousing

Antitrust Litig., 336 F.R.D. 5, 66 n.51 (S.D.N.Y. 2020) (discussing individual inquiries in the
predominance analysis, not ascertainability) (citing Forex, 407 F. Supp. 3d at 431-35).1
Similarly, the difficulty of proof does not prevent a class from being ascertainable, as
Credit Suisse argues. For example, a class of consumers who purchased a particular product is
ascertainable, even though they may need to produce a receipt or testify about a years-old
transaction to prove class membership. See, e.g., Ebin v. Kangadis Food Inc., 297 F.R.D. 561,
567 (S.D.N.Y. 2014); accord Petrobras, 862 F.3d at 267.

1 Marcus v. BMW of N. Am, LLC, 687 F.3d 583, 593 (3d Cir. 2012) is inapposite. The Second
Circuit rejected the “heightened ascertainability test” that requires an “administratively feasible
mechanism for determining” class membership. Petrobras, 862 F.3d at 267-69 (cleaned up).
This case is easily distinguished from the cases that Credit Suisse cites that found class
definitions insufficiently objective or definite. In Brecher v. Republic of Argentina, for example,
the class was defined by the “objective” criterion of beneficial ownership of certain bonds, but
was not limited to any “defined class period,” leaving the class open-ended and literally

indefinite. 806 F.3d 22, 25 (2d Cir. 2015); see Petrobras, 862 F.3d at 266 (quoting Brecher). In
Bakalar v. Vavra, the putative defendant class was unascertainable because class was defined by
the objective fact of class members’ relationship to certain works of art, but the set of works was
indefinite because they were “not described by title” and apparently were incapable of being
identified. 237 F.R.D. 59, 65 (S.D.N.Y. 2006).
C. Predominance
The two common issues certified for class-wide treatment predominate because no
individual issues will be adjudicated as to absent class members. “[A] court may employ Rule
23(c)(4)[] to certify a class on a particular issue even if the action as a whole does not satisfy
Rule 23(b)(3)'s predominance requirement.” In re Nassau Cnty. Strip Search Cases, 461 F.3d

219, 227 (2d Cir. 2006); accord Nnebe v. Daus, Nos. 06 Civ. 4991, No. 17 Civ. 7119, 2022 WL
615039, at *6 (S.D.N.Y. Mar. 1, 2022); see also Martin v. Behr Dayton Thermal Prods. LLC,
896 F.3d 405, 411-12 (6th Cir. 2018) (collecting cases from other circuits). Credit Suisse argues
that, despite the limited certification, individual issues of standing and class membership
predominate over the common certified issues. Those arguments are unpersuasive.
1. Standing
Article III standing does not present a barrier to certification because the OTC Class is
“defined in such a way that anyone within it would have standing.” Denney v. Deutsche Bank
AG, 443 F.3d 253, 264 (2d Cir. 2006). Although each class member is “not require[d to] submit
evidence of personal standing,” the class must be defined so that anyone within it has Article III
standing. Id. at 263-64.2 Article III standing requires that the class member has “suffered an
injury in fact that is ‘concrete and particularized,’” that is fairly traceable to the challenged action
and likely redressable by a favorable decision. See Fund Liquidation Holdings LLC v. Bank of

Am. Corp., 991 F.3d 370, 381 (2d Cir. 2021). To support standing, an injury “need not be
capable of sustaining a valid cause of action under applicable . . . law.” Denney, 443 F.3d at
264; accord Dubuisson v. Stonebridge Life Ins. Co., 887 F.3d 567, 574 (2d Cir. 2018).
Every class member suffered an injury in fact because the class includes only customers
who conducted FX trades in an affected currency pair with a Defendant during the period when
Defendants were allegedly conspiring to widen FX spreads. Every class member suffered the
harm of paying more or receiving less than they should have in those trades. In re Elec. Books
Antitrust Litig., No. 12 Civ. 3394, 2014 WL 1641699, at *8 (S.D.N.Y. Apr. 24, 2014) (“The
class, by definition, is composed solely of consumers who purchased an e-book from a Publisher
Defendant during the period of time in which those Publisher Defendants were engaged in a

conspiracy with Apple to fix e-book prices. There can be no serious argument that those
consumers lack Article III standing to bring a Sherman Act claim for price fixing.”).
Credit Suisse claims that four types of trades would not be affected by the alleged
conspiracy, so class members who exclusively made those kinds of trades would lack Article III
standing: (1) trades based on “one-way quotes,” (2) “at-best” orders, (3) “resting orders” and (4)
benchmark trades. This argument is unpersuasive.

2 Credit Suisse does not dispute that the jurisdictional requirement of standing is met because “at
least one plaintiff has standing.” See Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 84 n.2 (2d
Cir. 2012); accord Nnebe, 2022 WL 1204700, at *2.
Credit Suisse argues now for the first time that in “one-way quotes” and “at-best” orders
“no spread was provided” -- i.e., no spread was conveyed or reported to the customer. What the
customer was told is irrelevant. What the customer paid or was paid is relevant; if the spread
was widened due to the conspiracy, the quoted bid price would be lower and the ask price higher

than if the spread were narrower. The customer would have paid too much or received not
enough on account of the alleged conspiracy. The class member would still be harmed, even if
no spread was provided. As for “resting orders” and benchmark trades, they are expressly
excluded from the class. The class notice states: “Transactions that resulted from resting orders
are not included. Transactions at benchmark rates are not included.”
2. Class Membership
Contrary to Credit Suisse’s argument, individual issues that bear on class membership do
not preclude certification of an issue class where those individual issues are not certified for class
treatment. Only two issues are certified: the existence of a conspiracy, and Credit Suisse’s
participation in it. The class is not certified on the issue of “liability” generally. Rather, the

certified issues comprise part of the first liability element of an antitrust claim: “a violation of the
antitrust laws.” See In re Namenda Indirect Purchaser Antitrust Litig., 338 F.R.D. 527, 550
(S.D.N.Y. 2021) (citing Cordes & Co. Fin. Servs., Inc. v. A.G. Edwards & Sons, Inc., 502 F.3d
91, 105 (2d Cir. 2007)). Issues relating to the second element -- “injury caused by that
violation,” id. -- will not be adjudicated class-wide, so they are not weighed in the predominance
analysis. In re Nassau Cnty., 461 F.3d at 226. Rule 23(c)(4) permits the Court to specify which
issues will be certified (and thus part of the predominance analysis) and which will not be.
Credit Suisse’s arguments for disturbing the limited issue certification here are unpersuasive.
First, Credit Suisse conflates the role of class-membership issues in the predominance
and ascertainability analyses. What Credit Suisse calls a “bedrock requirement” -- “definite
boundaries of a readily identifiable class” “to allow ready identification of . . . who will be bound
by the judgment” -- is the requirement for ascertainability, not predominance. See Brecher, 806

F.3d at 25 (denying class certification on ascertainability grounds while noting that that
“requirement is distinct from predominance”).
Second, Credit Suisse misconstrues Petrobras. After addressing ascertainability, the
Petrobras court found that individual inquiries on the domesticity issue defeated predominance.
Id. In Petrobras, however, the class was certified on all issues, including domesticity. Id. at
271-75. That is distinguishable from this case, where the individual questions bound up with
class membership have not been certified for class treatment. Petrobras concluded by inviting
courts to “implement management strategies tailored to the particularities of each case,”
including to “bifurcate the proceedings to home in on threshold class-wide inquiries; [or] sever
claims not properly adjudicated on a class-wide basis to isolate key common issues.” Id. 274.

Third, cases addressing “liability classes” are inapposite. A “liability class” may be
certified only if liability to every class member can be established class-wide, leaving only
damages for individual determination. In Royal Park Invs., SA/NV v. Wells Fargo Bank, N.A.,
the court denied certification of a liability class because the common issue of “Wells Fargo’s
breach” “would not establish Wells Fargo’s liability.” No. 14 Civ. 9764, 2018 WL 1831850, at
*10 (S.D.N.Y. April 17, 2018), adopting report and recommendation, 2018 WL 739580
(S.D.N.Y. Jan. 10, 2018). Similarly, in two cases challenging practices of New York City’s Taxi
and Limousine Commission, courts wrestled with how to determine who was harmed in deciding
whether to certify liability classes. Decastro v. City of New York, No. 16 Civ. 3850, 2019 WL
4509027, at *16 & n.19 (S.D.N.Y. Sept. 19, 2019); Nnebe, 2022 WL 615039, at *8-9. Those
courts did not hold that they could not certify a narrower set of issues and exclude the individual
issues if it would sufficiently advance the litigation. See, e.g., Royal Park, 2018 WL 739580, at
*17-18 (noting that “in its discretion, the Court could certify a liability class solely on the
question of whether Wells Fargo breached its duties,” but recommending against it).3

Courts have authority to certify issues narrower than “liability” as a whole in order to
“home in on threshold class-wide inquiries.” Petrobras, 862 F.3d at 274; Russell v. Educ.
Comm’n for Foreign Med. Graduates, 15 F.4th 259, 270 (3d Cir. 2021) (“[D]istrict courts may
certify ‘particular issues’ for class treatment even if those issues, once resolved, do not resolve a
defendant’s liability.”). Classes on sub-issues within liability are familiar to antitrust cases. In
re Suboxone (Buprenorphine Hydrochloride & Naloxone) Antitrust Litig., 421 F. Supp. 3d 12, 77
(E.D. Pa. 2019) (certifying “the issue of anticompetitive conduct” because it is “severable from
the issues of antitrust impact and damages”); In re Prograf Antitrust Litig., No. 11-md-02242,
2014 WL 4745954, at *1 (D. Mass. 2014) (“Certification can also be of more limited scope,

covering specific common issues short of completely resolving liability.”). Liability will not be
established class wide. So individual liability issues do not defeat predominance.
D. Superiority
Class treatment of the two common issues certified for class-wide adjudication is superior
to requiring individual claimants repeatedly either to prove Credit Suisse’s role in a conspiracy

3 Cases addressing certification for all issues are inapposite for the same reason and a fortiori.
See Nypl v. JP Morgan Chase & Co., No. 15 Civ. 9300, 2022 WL 819771, at *10 (S.D.N.Y.
Mar. 18, 2022); Aluminum Warehousing, 336 F.R.D. at 65; Diverse Partners, LP v. AgriBank,
FCB, No. 16 Civ. 9526, 2019 WL 4305008, at *3 (S.D.N.Y. Sept. 11, 2019); Hunter v. Time
Warner Cable Inc., No. 15 Civ. 6445, 2019 WL 3812063, at *17 (S.D.N.Y. Aug. 14, 2019);
Vogel v. City of New York, No. 14 Civ. 9171, 2017 WL 4712791, at *6 (S.D.N.Y. Sept. 19,
2017).
or to litigate offensive non-mutual collateral estoppel. Classwide resolution of the two certified
issues would materially advance the litigation, despite the existence of some non-certified,
individual issues. The “due process” concerns Credit Suisse raises are speculative and baseless,
and Credit Suisse’s reexamination concerns can be addressed with sound case management.

1. Material Advancement of the Litigation
As discussed above, issue class certification under Rule 23(c)(4) may be appropriate even
where resolution of the non-certified issues requires individual inquiries that would otherwise
defeat predominance. However, issue certification is appropriate “only where resolution of the
particular common issues would materially advance the disposition of the litigation as a whole.”
Forex, 407 F. Supp. 3d at 437 (quoting Jacob v. Duane Reade, Inc., 293 F.3d 578, 589 (S.D.N.Y.
2013)); see also Houser v. Pritzker, 28 F. Supp. 3d 222, 254 (S.D.N.Y. 2014); 1 McLaughlin on
Class Actions § 4:43 (18th ed.); Manual for Complex Litigation, Fourth, § 21.24. Certification
must “reduce the range of issues in dispute and promote judicial economy.” McLaughlin v. Am.
Tobacco Co., 522 F.3d 215, 234 (2d Cir. 2008), abrogated on other grounds by Bridge v.

Phoenix Bond & Indem. Co., 553 U.S. 639 (2008) (internal quotation marks omitted). As with
any Rule 23 certification issue, this conclusion “must be supported by . . . rigorous analysis.” Id.
Resolution of Credit Suisse’s participation in a conspiracy will materially advance the
resolution of the litigation as a whole. If Plaintiffs succeed at trial, defining the timeline and
membership of the conspiracy on a class-wide basis will be more efficient than requiring each
class member to do so in later litigation, either starting from scratch or via collateral estoppel.
See Forex, 407 F. Supp. 3d at 438. If Credit Suisse prevails, “the question of whether it
[participated in an antitrust conspiracy] would be completely and finally determined, thereby
eliminating entirely the need for a remedial stage inquiry on behalf of each class member.”
Robinson v. Metro-N. Commuter R.R., 267 F.3d 147, 168 (2d Cir. 2001), abrogated on other
grounds by Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011)).
Issue certification makes class members’ claims more manageable even though certain
individual liability issues are excluded from class treatment. The most complex and

consequential issue in this case is whether Credit Suisse joined a global, multi-year price-fixing
conspiracy, and the individual issues surrounding class membership are minor by comparison.
This case is unlike McLaughlin in which the common issue of “defendants’ scheme” paled in
comparison to “larger issues such as reliance, injury, and damages,” which required fact-
intensive inquiries into individual behavior and state of mind. McLaughlin, 522 F.3d at 223,
234. Follow-on individual proceedings here will be more straightforward. The location, type
and liquidity provider of each trade likely can be established with documentary evidence.
These determinations are currently made by a claims administrator processing the other
Defendants’ settlements. If a class member establishes eligible trades through a similar
mechanical process, the only remaining issues would be causation and damages. Even if some

individual damages inquiries are required, that is often not enough to defeat certification even
when a class is certified for all purposes. See Roach v. T.L. Cannon Corp., 778 F.3d 401, 405
(2d Cir. 2015); accord In re Namenda, 338 F.R.D. at 551-52.
2. Due Process
Credit Suisse’s due process argument is speculative and unsupported. Credit Suisse
argues that “uncertainty as to class membership raises substantial due process concerns” for class
members who need to decide whether they are part of the class and whether to opt out. But
Credit Suisse does not point to any necessary information that was omitted from the class notice
in this case. Credit Suisse concedes that the class notice spells out each condition of class
membership but speculates that class members might have difficulty “determin[ing] on their
own” whether they meet each condition. Credit Suisse does not point to any ambiguity that
would prevent FX market participants from understanding what type of trade they made, with
whom or whether trades were made in the United States. Some may have lost the documentation

needed to make a claim, but that is less likely in a case involving sophisticated financial
transactions than, for example, in a consumer class action that may require saved receipts.
The cases Credit Suisse cites are inapposite. Valentino v. Carter-Wallace, Inc., 97 F.3d
1227, 1234 (9th Cir. 1996), is a toxic tort case in which, due to the lag time between exposure
and injury, “many potential members of the classes cannot yet know if they are part of the class”
(emphasis added). See also Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 611 (1997). In
Twigg v. Sears, Roebuck & Co., 153 F.3d 1222, 1228 (11th Cir. 1998), it was not merely
difficult, but impossible, for the plaintiff to know he was in the class because his claims were not
encompassed by the plain language of the class notice. This case does not involve class
members who literally cannot know the relevant facts or whether those facts make them a class

member bound to the judgment. Credit Suisse’s speculation that some class members might
make a mistake or lack documentation does not interfere with their due process rights.
3. Seventh Amendment
Any risk that successive juries might reexamine the same factual issues can be addressed
with sound case management. The Seventh Amendment provides that the very same factual
“issue may not be tried by different, successive juries.” Robinson, 267 F.3d at 169 n.13 (quoting
Blyden v. Mancusi, 186 F.3d 252, 268 (2d Cir. 1999)). Consistent with that limitation, “different
issues can be submitted to different juries as long as they are not presented in a way that causes
juror confusion or uncertainty,” even where the two juries will “have to consider similar
evidence in deciding distinct issues.” Id. at 169-70 n.13, 14 (quoting Simon v. Philip Morris
Inc., 200 F.R.D. 21, 36 (E.D.N.Y. 2001)); accord In re Rhone-Poulenc Rhorer, Inc., 51 F.3d
1293, 1303 (7th Cir. 1995) (“Bifurcation and even finer divisions of lawsuits into separate trials
are authorized in federal district courts.”). Trying different but related issues before different

juries consistent with the Seventh Amendment “calls for sound case management,” such as a
special verdict form, “not [outright] avoidance of [bifurcation].” Robinson, 267 F.3d at 169
n.13; accord Manual for Complex Litigation (Fourth) §§ 21.24, 22.755.
In the leading case identifying reexamination as a concern in a bifurcated class action
trial, the district court had separated the determinations of negligence and comparative
negligence. See Rhone-Poulenc, 51 F.3d at 1303. That approach was held to violate the Seventh
Amendment because the second jury necessarily would make its own determination of the
defendants’ negligence in order to compare it with the plaintiffs’. Id. In the leading Second
Circuit case, the first jury had to decide whether “reprisals” had taken place in violation of the
Eighth Amendment, but the verdict form did not require the jury to “specify which acts were

found to be ‘reprisals’ and which were not.” Blyden, 186 F.3d at 268. Because the damages
juries had to make their own determinations of which alleged acts constituted “reprisals” for
purposes of deciding individual liability and damages, those later verdicts violated the Seventh
Amendment. The first jury might have found that a given act constituted a “reprisal,” and a later
jury might have found the very same act did not. Id. at 269. Still, rather than decertify the class,
the court remanded, acknowledging that “a proper liability trial involving this particular class
could have been conducted” with different case management techniques. Id. at 271.
The Second Circuit has since joined other courts that “have argued that the Rhone-
Poulenc court’s concerns were overstated and that proper case management can easily allay
Seventh Amendment concerns and ensure that only one jury passes on each distinct issue.” 2
Newberg on Class Actions § 4:91 at n.7 (5th ed.) (collecting cases); Robinson, 267 F.3d at 169
n.13. Later cases finding Seventh Amendment problems in this district have closely resembled
Rhone-Poulenc or Blyden. See Benner v. Becton-Dickinson, 214 F.R.D. 157, 174 (S.D.N.Y.

2003) (finding Seventh Amendment problem in “proposed separation of the issues of negligence
and comparative negligence”); In re Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig.,
209 F.R.D. 323, 352 (S.D.N.Y. 2002) (refusing to certify class on “general liability,” including
“general foreseeability” and whether “warnings were given in general,” prior to individual trials
on foreseeability and warning as to individual plaintiffs).
Those cases are easily distinguished. The two certified issues here in effect ask whether,
when and with whom Credit Suisse agreed to engage in a joint scheme of widening FX spreads.
Unlike in Blyden, the first jury will answer those discrete questions without deciding whether or
how the conspiracy harmed any Plaintiff or absent class member. The only two antitrust cases
cited by Credit Suisse are distinguishable because they involved bifurcation “between fact of

damage and damages” where liability “necessarily include[d] proof of injury.” In re Indus. Gas
Antitrust Litig., 100 F.R.D. 280, 303 (N.D. Ill. 1983); see In re Lower Lake Erie Iron Ore
Antitrust Litig., 998 F.2d 1144, 1183 (3d Cir. 1993). As certified, however, if Plaintiffs prevail
on the class-wide issues at the upcoming trial, claimants in later individual proceedings will
litigate whether they made eligible trades and the degree to which those trades were impacted by
price-fixing and caused damages. Later juries will not reexamine whether the price-fixing
occurred in the context of a conspiracy involving Credit Suisse.
Price-fixing cases may be particularly suitable for certification of issue classes in this
manner, given that “proof of a per se violation and of antitrust injury are distinct matters that
must be shown independently.” Atl. Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 344
(1990). Several courts have similarly separated conspiracy and injury. See, e.g., In re Steel
Antitrust Litig., No. 08 Civ. 5214, 2015 WL 5304629, at *12 (N.D. Ill. Sept. 9, 2015) (finding
“that certifying the class on the issue of conspiracy and leaving resolution on the question of

impact and damages on an individual basis” is “most efficient and appropriate”); Kamakahi v.
Am. Soc’y for Reproductive Med., 305 F.R.D. 164, 193 (N.D. Cal. 2015) (“In price-fixing cases,
courts repeatedly have held that the existence of the conspiracy is the predominant issue and
warrants certification even where significant individual issues are present.”).
Contrary to Credit Suisse’s argument, the first jury’s determination of the class-wide
issues will not require examining any individual claims that will be re-examined by a later jury,
and vice versa. The first jury may consider some of the same evidence in deciding class-wide
issues that a later jury would use to decide distinct individual issues, but that is not a Seventh
Amendment problem. See Robinson, 267 F.3d at 169 n.13. For example, the first jury might
view a particular chat transcript as circumstantial evidence of the conspiratorial agreement itself.

A later jury could, consistent with the Seventh Amendment, decide the separate factual question
of whether that chat is evidence of causation for an individual class member.
Similarly, Plaintiff’s theories of horizontal and vertical correlation among currency pairs
do not raise reexamination problems because the first jury need not address those issues. The
first jury will decide if and when Credit Suisse was part of a conspiracy to widen FX spreads.
The extent to which that conspiracy succeeded and caused harm is not at issue in the class trial.
Credit Suisse suggests that it might defend against later damages actions by arguing that
class members who participated in the chatrooms at issue acquiesced in the conspiracy. There is
no re-examination of the same factual issue if the first jury decides Credit Suisse’s involvement
in the conspiracy, and a later jury decides a different entity’s involvement. Unlike in the
comparative negligence context, the application of Credit Suisse’s proffered defense to a class
member would rise and fall solely on that class member’s conduct, not on any comparison with
Credit Suisse’s conduct. Cf Rhone-Poulenc, 51 F.3d at 1303.
E. CONCLUSION
For the foregoing reasons, Defendant’s motion to decertify the issue class is DENIED.
Defendant’s motion for oral argument is DENIED as moot.
The Clerk of Court is respectfully directed to close the motion at Docket Numbers 1678
and 1689.
Dated: August 31, 2022 / /
New York, New York
LORNA G. SCHOFIEL
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10343981. Public record. Not legal advice.