In re Foreign Exchange Benchmark Rates Antitrust Litigation

Background

The plaintiffs filed eight motions in limine, which are requests to decide before trial whether particular evidence or arguments may be presented. Three motions were later resolved by agreement. This order addresses the remaining five motions. The opinion states that the rules cited are the Federal Rules of Evidence.

Rulings on the Motions

Plaintiffs’ Second Motion in Limine

The plaintiffs sought to exclude evidence and argument about purported competitive justifications for the alleged price-fixing conspiracy and about the absence of anticompetitive effects. The motion was denied in part as moot and otherwise denied.

The defendants represented that they would not argue that the alleged price fixing was reasonable, beneficial, or a legitimate business practice, making much of the motion moot. The court nevertheless allowed the defendants to argue that the alleged conduct did not constitute price fixing, including by arguing that certain information sharing was legitimate or that particular chats did not show an agreement to fix prices. The defendants could also offer evidence that the alleged conspiracy had no market effect if they made clear that the evidence was being offered as circumstantial evidence that no conspiracy existed, rather than as a justification for price fixing.

Plaintiffs’ Third Motion in Limine

The plaintiffs sought to exclude expert testimony that a conspiracy existed or that conduct was anticompetitive. The motion was denied in part as moot and otherwise denied.

The defendants represented that their experts would not offer legal conclusions, opinions on the ultimate issue of whether there was a conspiracy, or opinions characterizing conduct as pro- or anticompetitive. The court found the remainder of the plaintiffs’ request unsupported. It allowed qualified experts to testify about factual matters relevant to whether the alleged conspiracy existed, such as features of the foreign-exchange market that could make price fixing more or less likely.

Plaintiffs’ Sixth Motion in Limine

The plaintiffs sought to exclude evidence and argument that the case involved multiple markets. The motion was denied in part as moot and otherwise denied.

The defendants represented that they would not present evidence or argument that multiple foreign-exchange markets existed. They could, however, present evidence about alleged interbank and customer “tiers” or “segments” within a single foreign-exchange market, and about the relationship between those tiers or segments.

Plaintiffs’ Seventh Motion in Limine

The plaintiffs sought to exclude argument and evidence that treated spread-pricing information as “market color,” meaning market-related information exchanged by traders. The motion was denied.

The court held that whether a particular discussion about spreads showed an agreement to fix, widen, stabilize, or maintain spreads, rather than a non-conspiratorial exchange of information, was fact specific. The defendants could offer alternative explanations or context for particular chats, and the jury would decide how credible those explanations were.

Plaintiffs’ Eighth Motion in Limine

The plaintiffs sought to exclude expert testimony about intent, state of mind, or motive. The motion was denied in part as moot and otherwise granted in part and denied in part under Rule 702.

The defendants had represented that they did not intend to offer the challenged expert testimony, making much of the motion moot. The court granted the motion in part to the extent the defendants might offer opinions like those attributed to Dr. Melvin, including opinions that traders were likely seeking information about market liquidity and did not appear to be trying to agree on particular spreads. The court found that such opinions appeared to address the traders’ state of mind and were inadmissible.

The court otherwise allowed expert testimony offering non-price-fixing explanations for particular chats. It prohibited the defendants from arguing, through expert testimony or other means, that an instance of price fixing was reasonable or was explained by a legitimate motive.

Disposition

Judge Lorna G. Schofield ordered that the plaintiffs’ applications were: (1) denied in part as moot and otherwise denied as to purported competitive justifications; (2) denied in part as moot and otherwise denied as to defense expert testimony about the existence of the conspiracy; (3) denied in part as moot and otherwise denied as to multiple markets; (4) denied as to conflating spread information with “market color”; and (5) denied in part as moot and otherwise granted in part and denied in part as to expert testimony about intent, state of mind, or motive. The Clerk was directed to close the five motions and record the disposition stated in the order.