Opinion
13 Civ. 7789 (LGS)
09-03-2022
IN RE FOREIGN EXCHANGE BENCHMARK RATES ANTITRUST LITIGATION
ORDER
LORNA G. SCHOFIELD UNITED STATES DISTRICT JUDGE
WHEREAS, on August 19, 2022, the parties filed competing proposed verdict forms and pretrial memoranda in support of their respective positions. The Court subsequently proposed Court Draft 1 of the verdict form and directed the parties to raise any issues and objections, which the parties did.
WHEREAS, CS Defendants' original proposal is legally unsound for the reasons stated in the Court's August 25, 2022, Order at Dkt. No. 1842, and CS Defendants' judicial estoppel argument fails for similar reasons. Regardless of whether Plaintiffs took an inconsistent position earlier in the litigation, as Defendants allege, the Court never “adopted” the position that the conspiracy would or must be proved in its entirety or not at all. See In re Adelphia Recovery Tr., 634 F.3d 678, 695-96 (2d Cir. 2011) (“[J]udicial estoppel will apply if . . . the party's former position has been adopted in some way by the court . . . .”). That principle is inconsistent with basic principles of antitrust and conspiracy law, as Plaintiffs correctly argue. For similar reasons, the Court rejects the CS Defendants' “trial by ambush” argument.
WHEREAS, CS Defendants' Rule 23 arguments are rejected as untimely. The Rule 23 issues have been adjudicated twice already, in the decision to certify the class and the recent decision not to decertify the class.
WHEREAS, CS Defendants' argument that the verdict form should specify individual traders rather than banks -- and Defendants' Seventh Amendment arguments in general -- are also unpersuasive, for substantially the reasons stated in the Opinion and Order denying CS Defendants' motion to decertify the class. The banks, including CS, are the defendants who allegedly conspired, albeit through individuals acting as their agents.
WHEREAS, CS Defendants' argument that the first jury should decide whether one conspiracy existed or several is persuasive. That position is reflected in Court Draft 2.
It is hereby ORDERED that, having considered the parties' arguments, the Court intends to adopt a verdict form in substantially the form of Court Draft 2, which is attached to this Order.