The Last Remaining FX Defendant Prevails at Trial

Introduction

Class Plaintiffs in the case of In re Foreign Exchange Benchmark Rates AntiTrust Litigation alleged that Defendant banks conspired to fix prices in the foreign exchange (“FX”) market in violation of Sections 1 and 3 of the Sherman Antitrust Act. All but one of the Defendant banks settled several years ago for a total of $2.3 billion. Defendant Credit Suisse decided to proceed to trial, and on October 20, 2022, a Manhattan federal jury found that Credit Suisse played no part in a conspiracy to fix the foreign currency exchange market. 

Class Plaintiffs filed a motion for a new trial. On February 16, 2023, the United States District Court for the Southern District of New York released an opinion (13 Civ. 7789) denying Plaintiffs’ motion for a new trial and held that the jury’s verdict was not a miscarriage of justice. In their motion, Plaintiff investors alleged misconduct on the part of defense counsel and argued that the verdict was contrary to a “mountain of evidence.” In response, Credit Suisse called Plaintiffs’ arguments a “hodgepodge of complaints.

Miscarriage of Justice

Chatroom messages were at the center of the dispute. Plaintiffs argued that they showed that Credit Suisse’s traders were working with rivals to fix prices.  They pointed to many chats in which Credit Suisse employees discussed what the spread “should be” or what the “right” or correct spread was. In their view, the chatroom messages could only be interpreted in one way: competitors discussing the “right” spread only makes sense in the context of a price-fixing conspiracy. Credit Suisse argued that spreads were discussed as proxies for liquidity and volatility- essentially, risk. The Court agreed with Credit Suisse because in each case: Credit Suisse cited testimony or other evidence that rebutted Plaintiffs’ interpretation of those chats. 

Plaintiffs also alleged that since some conspiracy existed, “it was irrational for the jury to find that Credit Suisse was not involved.” Plaintiffs pointed to statements made by Credit Suisse’s counsel acknowledging that there was at least some misconduct in the industry, and suggested that this was an “admission of Credit Suisse’s own involvement.” The Court held these arguments were unpersuasive because, while “Plaintiffs offered ample evidence of a conspiracy,” that evidence “had nothing to do with Credit Suisse.”

Trial Errors

In addition to a miscarriage of justice, Plaintiff investors also argued that defense counsel engaged in misconduct by unfairly taking advantage of the Court’s rulings on motions in limine and other pretrial orders, and in one case that Credit Suisse’s counsel “misstated the law.” Some of their arguments are listed below.

1. Subsequent Remedial Measures

Plaintiffs argued that they were prejudiced because they were not allowed to continue following up on a line of questioning at trial about subsequent remedial measures – namely, closing down the chatrooms. The Court disagreed because prior to trial Credit Suisse filed, and the trial court granted, a motion in limine to preclude evidence of subsequent remedial measures under Rule 407. Additionally, during cross examination, the Plaintiffs’ c asked for the expert to expand upon his voluntary admission that the chatrooms were closed at some point. Furthermore, the Court noted that Plaintiffs never sought relief on this issue during the trial and this incident could not amount to misconduct on the part of defense counsel.

2. Fifth Amendment

Plaintiffs then argued that during its summation, Credit Suisse misstated the law concerning the permissibility of drawing adverse inferences from invocations of the Fifth Amendment. At trial, several Credit Suisse witnesses invoked the Fifth Amendment in response to all or nearly all of the questions they were asked.  During summation, Credit Suisse’s counsel reiterated the substance of the jury instruction that the jury is “permitted, but not required, to infer that the withheld information would have been unfavorable” and reminded the jury that “[a]ny inference [it] may draw should be based on all of the facts and circumstances in the case.” The Court held that Credit Suisse was not misleading when it suggested that any one fact was dispositive, or that the jury could not draw an adverse inference merely because the witnesses took the Fifth Amendment in response to innocent-seeming questions.

3. Plaintiffs as Witnesses

Finally, Plaintiffs argued that Credit Suisse’s counsel engaged in prejudicial misconduct when, after two class plaintiffs were referenced (as agreed), counsel for Credit Suisse argued that they failed to take the stand and their silence spoke volumes about the plaintiffs’ proof, or, rather, the lack thereof. Prior to trial, the parties had entered into a stipulation providing that neither party would call any class plaintiffs at trial. The Court held that Credit Suisse’s comments were not prejudicial because Plaintiffs did not object to Credit Suisse’s argument during or after its summation until filing their motion for new trial. Furthermore, Plaintiffs had opened the door when they told the jury that their clients –“working people,” including a “fire captain” – had been harmed by Credit Suisse and its co­conspirators, without subjecting those witnesses to cross-examination.

Conclusion

The Court’s denial of Plaintiff investors’ motion for new trial is of interest to investors because it shows that courts will be deferential to jury findings in these cases and it can be an uphill battle for class plaintiffs to prove a miscarriage of justice when filing a motion for a new trial. Proving misconduct on the part of defense counsel is also difficult and counsel for Plaintiff investors should make sure to object to any actions at the time of trial in order to preserve the record.  Even when other banks settled for more than $2.3 billion and admitted to wrongdoing, the United States District Court for the Southern District of New York looked exclusively to the record at trial and the jury’s findings to determine how to rule on Plaintiff investors’ motion.

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