In re Foreign Exchange Benchmark Rates Antitrust Litigation

Background

The parties filed competing proposed verdict forms and pretrial memoranda. The court then proposed Court Draft 1 and invited the parties to identify issues and objections.

The order addressed arguments by the CS Defendants concerning the form that the jury would use. The opinion states that the CS Defendants’ original proposal was legally unsound for reasons given in an earlier order. The court also rejected their judicial-estoppel argument. Judicial estoppel is a rule that can prevent a party from taking a position inconsistent with one previously adopted by the court. The court said it had never adopted the position that the alleged conspiracy had to be proved entirely or not at all. It also rejected the CS Defendants’ argument that the proposed approach would amount to an unfair surprise at trial.

The court rejected the CS Defendants’ arguments under Rule 23 as untimely, noting that the class-related issues had already been addressed in the decision certifying the class and the later decision declining to decertify it. The court also found unpersuasive their argument that the verdict form should identify individual traders rather than banks, as well as their Seventh Amendment arguments. The order states that the banks, including Credit Suisse, were the defendants alleged to have conspired through individuals acting as their agents.

Ruling and Proposed Verdict Form

The court found persuasive the CS Defendants’ argument that the first jury should decide whether the evidence showed one conspiracy or several. That position was reflected in Court Draft 2. The court ordered that, after considering the parties’ arguments, it intended to adopt a verdict form substantially in the form of Court Draft 2, which was attached to the order.

The attached special verdict form would ask the jury whether the plaintiffs proved, by a preponderance of the evidence, a conspiracy to widen, fix, stabilize, or maintain bid-ask spreads in the foreign-exchange spot market. If so, it would ask whether Credit Suisse knowingly participated, how many conspiracies Credit Suisse knowingly participated in, the period of each conspiracy, and which listed banks knowingly participated with Credit Suisse. The form directed the jury to stop deliberating if it answered certain preliminary questions negatively.

This order addressed the structure of the proposed jury verdict form. It did not report a jury finding on whether a conspiracy existed or whether Credit Suisse participated.