In re Foreign Exchange Benchmark Rates Antitrust Litigation

Background

The parties filed proposed jury verdict forms and supporting pretrial memoranda on August 19, 2022. On August 23, 2022, they jointly asked for an extension until September 2, 2022, to respond to each other’s pretrial memoranda.

The litigation involves claims concerning an alleged conspiracy to widen, fix, stabilize, or maintain bid-ask spreads in the foreign-exchange spot market. The certified issues were the existence of such a conspiracy and whether the Credit Suisse defendants participated in it.

Proposed Verdict Forms

The Credit Suisse defendants—Credit Suisse Group AG, Credit Suisse AG, and Credit Suisse Securities (USA) LLC—proposed a one-question verdict form. Their proposed question would have asked whether plaintiffs proved a conspiracy exactly as alleged in the complaint, including the full class period, all sixteen defendant banks, and fifty-two currency pairs. They also proposed instructions stating that the jury should find for defendants if plaintiffs failed to prove any part of those particulars.

Plaintiffs proposed a more detailed verdict form. It would have asked whether any conspiracy existed and, if so, which time period, banks, and currency pairs were covered.

The court stated that neither proposal was required by the applicable substantive law and that both would likely focus the jury unnecessarily on particular currency pairs. The court explained that, on the certified issues, plaintiffs needed to prove concerted action between at least two legally distinct economic entities to fix spreads in the foreign-exchange spot market, and that Credit Suisse joined that action.

Order

The court said it was considering a verdict form based substantially on the first six questions in plaintiffs’ proposal, identified as Court Draft 1. The draft asked whether plaintiffs proved: (1) a conspiracy to widen, fix, stabilize, or maintain bid-ask spreads; (2) Credit Suisse’s knowing participation; (3) whether the conspiracy existed from December 1, 2007, through December 31, 2013; (4) the alternative time period if it did not exist throughout that period; and (5) whether Credit Suisse participated with the fifteen other listed banks, or alternatively which of those banks participated with Credit Suisse.

Judge Schofield granted the parties’ request for an extension. The parties were ordered to file responses to the pretrial memoranda by September 2, 2022. Those responses could not exceed 20 pages and had to include any objections to the court’s proposed verdict form. The order did not enter a verdict or finally decide the antitrust claims.