In re Foreign Exchange Benchmark Rates Antitrust Litigation

Background

The parties submitted a joint letter identifying disputes about the admissibility of proposed trial exhibits. The order addressed those evidentiary disputes under the Federal Rules of Evidence and did not decide the underlying antitrust claims.

Plaintiffs’ Requests

The plaintiffs sought to introduce certain audio files and emails under Rule 801(d)(2)(E), which permits some statements made by a coconspirator to be admitted against another party when the required conditions are shown. The plaintiffs relied only on the court’s earlier decision denying both sides’ summary-judgment motions. That earlier decision stated that significant uncontroverted evidence showed some conspiratorial activity in the foreign-exchange market in which Credit Suisse participated, but that questions remained about the scope of the shared illegal goal and the conspirators’ mutual dependence and assistance.

The court found that the plaintiffs had not identified evidence connecting the specific disputed calls and emails to a conspiracy involving Credit Suisse. The court could consider the hearsay evidence itself when deciding whether the evidentiary requirements were met, but the calls and emails did not themselves clearly show that they concerned a conspiracy with Credit Suisse. At least some independent corroborating evidence was also required. The plaintiffs’ requests were therefore DENIED without prejudice.

Credit Suisse’s Requests

The Credit Suisse Defendants sought to introduce spread matrices produced by defendants and data and trade analytics reports produced by non-party BlackRock. Rule 803(6)(D) requires the elements of the business-record exception in Rule 803(6)(A) through (C) to be shown through testimony from a custodian or another qualified witness, a qualifying certification, or a statute permitting certification.

Because the necessary certifications had not been provided, the Credit Suisse Defendants’ requests were DENIED without prejudice. The court stated that Credit Suisse could renew its motion if it obtained the required certifications before trial.

Disposition

The court concluded that the parties’ respective requests were DENIED without prejudice. It noted that the parties had stipulated to the admissibility of many similar pieces of evidence and strongly encouraged them to continue attempting to reach agreements. Judge Lorna G. Schofield’s order addressed only the proposed evidence and did not resolve the underlying antitrust dispute.