In re Foreign Exchange Benchmark Rates Antitrust Litigation

Background

The defendants, whom the opinion also calls “CS,” filed eleven motions in limine—requests to decide before trial whether particular evidence or arguments may be presented to the jury. The court ruled under the Federal Rules of Evidence unless otherwise noted.

Rulings on the Eleven Motions

1. Consent order between CS and the New York State Department of Financial Services — granted. The court excluded evidence and argument concerning the consent order and related press release under Rules 403 and 408. It concluded that the order could not be used to prove liability, and that its limited relevance was outweighed by risks of prejudice and confusion.

2. Testimony from people invoking the Fifth Amendment — denied. The court permitted plaintiffs to call at least some witnesses who invoked the protection against self-incrimination. The ruling was without prejudice to a later CS motion to limit the number of such witnesses after plaintiffs disclosed how many they intended to call.

3. Other banks’ and traders’ criminal proceedings — denied. The court allowed evidence and argument concerning other banks’ and foreign-exchange traders’ criminal prosecutions, guilty pleas, or convictions. It found the evidence highly relevant to whether a price-fixing conspiracy existed, while noting that a jury instruction could distinguish that issue from whether CS joined the conspiracy.

4. Factual admissions in guilty pleas and plea proceedings — denied. The court allowed relevant factual admissions by non-CS people and entities, including admissions concerning widening spreads by lowering bid quotes and increasing ask quotes through an anticompetitive conspiracy. The parties were directed to confer about the specific admissions plaintiffs intended to present.

5. Non-CS consent orders and regulatory settlements — granted in part and denied in part. The court generally excluded the settlements under Rule 408, but held that plaintiffs could introduce the underlying evidence cited by regulators. It also denied the motion as to relevant factual admissions in Barclays PLC’s consent order because Barclays had admitted those facts.

6. Federal Reserve investigations of Peter Little and Michael Weston — granted. The court excluded the investigation materials under Rules 408, 401, 402, and 403. It treated the Weston material as an excluded consent order and found that the Little material did not concern the conduct at issue and could create prejudice and confusion.

7. Internal bank policies — granted in part and denied in part. The court excluded policies that merely repeated or interpreted antitrust law, such as policies mentioning price fixing or bid rigging. It allowed policies specifically addressing conduct allegedly used to carry out the conspiracy, such as using instant messages or sharing information about nonpublic trades.

8. Subsequent remedial measures — granted. The court excluded evidence of later measures such as closing chat rooms, strengthening corporate policies, and firing employees allegedly responsible for price fixing. It rejected the argument that antitrust cases create an exception to Rule 407.

9. Communications involving participants outside the United States — denied. The court rejected the request that plaintiffs first establish a separate connection to United States commerce for each communication. It reasoned that the Foreign Trade Antitrust Improvements Act limits which claims may proceed, not which evidence may be admitted, and that communications supporting the alleged international conspiracy had the required connection to the United States claims.

10. Other alleged bad acts — granted in part and otherwise denied without prejudice. The court excluded two identified chats under Rules 403, 404(b), 401, and 402. The first improperly suggested that markets were generally rigged; the second was irrelevant and did not qualify for a permitted use under Rule 404(b). The court declined to exclude all other evidence of alleged bad acts, leaving the motion otherwise denied without prejudice to renewal during trial.

11. Keith Underwood’s testimony and reports — granted. The court precluded plaintiffs from calling Underwood and using his reports because plaintiffs had not made the required expert disclosures under Federal Rule of Civil Procedure 26(a)(2). The court found no explanation for the late disclosure, limited importance of the testimony, and substantial prejudice to defendants. It allowed questioning of defense expert Dr. McCrary about any reliance on Underwood’s reports or opinions.

Disposition

The court ordered the eleven motions closed with the stated dispositions: motions one, six, eight, and eleven were granted; motions two, three, four, and nine were denied; motions five and seven were granted in part and denied in part; and motion ten was granted in part and otherwise denied without prejudice. The opinion does not decide the ultimate liability question in the antitrust litigation; it resolves what evidence may be presented and under what limits.