EC Documents – FX Claim UK

14. Which FX instruments are included in the claim?

The claims includes FX spot transactions and FX outright forward transactions.

FX spot transactions are transactions involving the exchange of two currencies at a rate agreed on the date of the contract for value or delivery (cash settlement) within two business days.

FX outright forward transactions are transactions involving the exchange of two currencies at a rate agreed on the date of the contract for value or delivery (cash settlement) more than two business days later.

The following types of transaction are not included in the claim:

Forward Foreign Exchange Agreements (FXAs);
Non-Deliverable Forwards (NDFs);
Forward Contracts for Differences (CFDs);
Transactions entered into in a retail branch, including transactions at a travel money desk or bureau de change;
Online purchases of currency for non-commercial purposes;
Transfers of funds denominated in different currencies across any two bank accounts for non-commercial purposes;
Transactions involving an ATM;
Transactions involving a foreign currency using a credit card, debit card, prepaid card or other stored value card;
Transactions entered into as an Intermediary;
Transactions to execute an FX Spot Transaction and/or an FX Outright Forward Transaction at a specific FX benchmark rate, such as the WM/Reuters Closing Spot Rates and the European Central Bank FX reference rates;
Transactions resulting from a limit order or a resting order (such as a “take profit” or “stop loss” order); and
Any transaction which is the subject of ongoing litigation or a binding settlement.

13. Why are there two classes in Mr Evans’ claim? What is the difference?

The purpose of including two classes in these proposed collective proceedings is to reflect two different types of FX transactions. To summarise:

A transaction falls within Class A if it is a transaction with one of the Banks, during a period in which that Bank was found to be participating in one or both of the cartels.
There are two types of transaction that would fall within Class B:
1. A transaction with one of the Banks, during any period between 18 December 2007 and 31 January 2013 in which that Bank was not found to be participating in one or both of the cartels; and
2. A transaction with a Relevant Financial Institution at any time between 18 December 2007 and 31 January 2013.

The main reason for including two different classes is that the experts instructed by Mr Evans intend to adopt different approaches for calculating the losses suffered by each class, if this claim proceeds to trial.

It is possible that you may fall within one or both of the classes, depending which bank you traded with and the dates of your transactions.

The full proposed class definition can be found here and should be read carefully.

3. Who is the claim against?

The proposed claim is against the following banks:

Barclays Bank Plc;
Barclays Capital Inc;
Barclays Execution Services Limited;
Barclays Plc;
Citibank N.A.;
Citigroup Inc;
JPMorgan Chase & Co;
JPMorgan Chase Bank N.A.;
J.P. Morgan Europe Limited;
J.P. Morgan Limited;
MUFG Bank, Ltd. (formerly Bank of Tokyo-Mitsubishi UFJ, Ltd.);
Mitsubishi UFJ Financial Group, Inc.;
NatWest Markets Plc;
The Royal Bank of Scotland Group Plc; and
UBS AG

Collectively, these banks are referred to as “the Banks”. Each of the Banks was included in one or both of the decisions adopted by the European Commission (see Question 4) and have admitted their participation in the cartels.

15. Which currencies were affected?

The claim relates to transactions involving a pair of the G10 currencies, which are:

Euro;
British Pound;
Japanese Yen;
Swiss Franc;
US Dollar;
Canadian Dollar;
New Zealand Dollar;
Australian Dollar;
Danish Krone;
Swedish Krona; and
Norwegian Krone.

7. Is this collective action opt-in or opt-out?

This claim is brought on an opt-out basis for individuals and entities domiciled in the UK. Therefore, if you or your business is domiciled in the UK and falls within the class definition, you will automatically be included in Mr Evans’ proposed collective action and will be bound by any judgment or settlement, unless you choose to opt out.

If you or your business are not resident or domiciled in the UK, and you wish to participate in Mr Evans’ proposed collective action, you will need to opt in to the claim. Opt-in registration will be open at a later date but please register your interest to receive more information and we will keep you informed of when you can opt in, and the process to be followed.

4. Who was the banks' unlawful conduct?

On 16 May 2019, the European Commission adopted two decisions finding that the Banks (listed at Question 3) each participated in one or both of two cartels in foreign exchange spot trading:

The first cartel, known as the “Three Way Banana Split” cartel, involved Barclays, RBS/NatWest, Citigroup, JP Morgan and UBS, and operated between 18 December 2007 – 31 January 2013.
The second cartel, known as the “Essex Express” cartel, involved Barclays, RBS/NatWest, MUFG Bank and UBS, and operated between 14 December 2009 – 31 July 2012.

The cartels concerned the G10 currencies and covered the whole of the EEA. Their names are derived from the names of the online chatrooms used by the traders involved in the cartels, which are explained below.

The cartels covered the total period of 18 December 2007 – 31 January 2013, although the banks did not necessarily participate in either or both of the cartels for the whole of that period.

The Commission found that traders employed by the Banks, who were involved in FX spot trading, had reached an underlying understanding to exchange, and had exchanged, current or forward-looking commercially sensitive information through private, online chat rooms. The traders also occasionally coordinated their trading activities.

The Commission found that commercially sensitive information was shared in the chatrooms on an extensive and recurrent basis. That information included:

The open risk positions of the participating traders (i.e. the currency they needed to sell or buy in order to convert their portfolios into their bank’s currency);
Information relating to customers’ outstanding orders (i.e. the amount that a customer wanted to exchange and the specific currencies involved, as well as indications on which client was involved in a transaction);
Information on bid-ask spreads (i.e. prices); and
d) Other details of current or planned trading activities.

This claim relies on those decisions and alleges that businesses and individuals who entered into spot transactions and/or outright forward transactions involving a pair of G10 currencies with the Banks or other Relevant Financial Institutions suffered losses as a result of this misconduct.

For more information, please take a look at the Commission’s press release.

Relevant Financial Institution

Relevant Financial Institution means any entity forming part of a banking group identified in the List of Relevant Financial Institutions.

List Relevant Financial Institutions

ABN AMRO
Adam & Co
ANZ
Banco Bilbao Vizcaya Argentaria SA (BBVA)
Bank of America
Bank of America Merrill Lynch
Bank of China
Bank of Montreal
Bank of New York Mellon
Bank of Nova Scotia
Bank of Scotland
Barclays[1]
BNP Paribas
Canadian Imperial Bank of Commerce
Calyon
CIBC World Markets
Citigroup / Citibank[2]
China Construction Bank
Commerzbank
Commonwealth Bank of Australia
Coutts & Co
Crédit Agricole CIB
Credit Suisse
Danske Bank
Deutsche Bank
Goldman Sachs
Halifax Bank of Scotland (HBOS)
HSBC
Hypovereinsbank (HVB)

ING Bank
ICBC Standard Bank
JP Morgan[3]
Lehman Brothers
Lloyds Banking Group
Lloyds TSB
Macquarie Bank
Merrill Lynch
Mitsubishi Union Financial Group / Bank of Tokyo Mitsubishi[4]
Mizuho Corporate Bank
Morgan Stanley
National Australia Bank
Nationwide Building Society
NatWest / Royal Bank of Scotland[5]
Nomura
Norinchukin Bank
Rabobank
Royal Bank of Canada
Skandinaviska Enskilda Banken
Société Générale
Standard Chartered
State Street
Sumitomo Mitsui Banking Corporation
Svenska Handelsbanken
Toronto-Dominion
Unicredit
UBS[6]
Westpac Banking Corporation

[1]         Excluding Barclays Bank Plc, Barclays Capital Inc., Barclays Plc and Barclays Execution Services Limited.
[2]         Excluding Citibank N.A. and Citigroup Inc.
[3]         Excluding J.P. Morgan Europe Limited, J.P. Morgan Limited, JPMorgan Chase & Co and JPMorgan Chase Bank, N.A.
[4]         Excluding MUFG Bank, Ltd and Mitsubishi UFJ Financial Group, Inc.
[5]         Excluding NatWest Markets Plc and the Royal Bank of Scotland Group Plc.
[6]         Excluding UBS AG.

Excluded Transactions

“Excluded Transactions” means the following transactions, which shall be excluded from both Class A and Class B:

Transactions entered into in a retail branch. Such transactions include, but are not limited to, transactions at a “travel money desk” or a “bureau de change”.
Online purchases of currency for Non-Commercial Purposes.
Transfers of funds denominated in different currencies across any two bank accounts for Non-Commercial Purposes.
Transactions involving an automated teller machine (or “ATM”).
Transactions involving a foreign currency using a credit card, debit card, prepaid card or other stored value card.
Transactions that the class member entered into as an Intermediary.
Transactions to execute an FX Spot Transaction and/or FX Outright Forward Transaction at a specific foreign exchange benchmark rate, such as the WM/Reuters Closing Spot Rates and the European Central Bank foreign exchange reference rates.
Transactions resulting from a class member leaving a limit order or a resting order (such as a “take profit” or “stop loss” order).
Any transaction which is the subject of ongoing litigation or a binding settlement which would otherwise fall within Class A or Class B (with the exception of any claims covered by other applications for a Collective Proceedings Order before the Competition Appeal Tribunal). For the avoidance of doubt, this includes, but is not limited to, transactions which are included in the following proceedings:
1. In Re Foreign Exchange Benchmark Rates Antitrust Litigation, filed before the United States District Court, Southern District of New York under case number 1:13-cv-07789-LGS.
2. The Canadian FX National Class Action, which comprises actions commenced in the Ontario Superior Court of Justice under Court File No. CV-15-536174 and the Superior Court of Quebec under Court File No. 200-06-000189-152.
3. J Wisbey & Associates Pty Ltd v UBS AG and others, filed before the Federal Court of Australia under Case Number VID567/2019.

Excluded Persons

“Excluded Persons” means the following persons, which shall be excluded from both Class A and Class B:

Relevant Financial Institution.
Any person that has participated in the Bank of International Settlements’ Triennial Central Bank Survey of Foreign Exchange Turnover as a “Reporting dealer”.
The Defendants, including:
1. Their subsidiaries, holding companies and any subsidiaries of those holding companies; and
2. Any other entities: (i) which have a controlling interest in a Defendant; and/or (ii) in which a Defendant has such an interest.
Officers, directors and employees of any entity referred to in point (c).
Members and staff of the Competition Appeal Tribunal assigned to these proceedings.
Members and staff of any other court (such as an appellate court) that may from time to time hear any matter arising in these proceedings.
The Class Representative’s and Defendants’ legal representatives, as well as any experts or other professional advisers instructed by them in these proceedings, including the professional staff assisting them.

Entered Into...

An FX Spot Transaction and/or FX Outright Forward Transaction is “entered into… in the European Economic Area” where:

The Defendant or Relevant Financial Institutions entering into that transaction is located in the European Economic Area.
For these purposes, a Defendant or Relevant Financial Institution is located in the European Economic Area where their individual representative, sales desk or other business unit (such as an agency, branch or office) entering into the transaction is located in the European Economic Area.

and/or
The class member entering into that transaction is located in the European Economic Area.
For these purposes, a class member domiciled in the European Economic Area shall be considered located there.

For the avoidance of doubt, the above definition applies irrespective of whether the class member entered into an FX Spot Transaction and/or FX Outright Forward Transaction with a Defendant or Relevant Financial Institutions directly or indirectly via an Intermediary.

The Defendant’s Relevant Class A/B Periods

“The Defendant’s Relevant Class A Period” and “The Defendant’s Relevant Class B Period” comprise the periods set out in the table below:

Defendant	Relevant Class A Period	Relevant Class B Period
Barclays Bank Plc Barclays Plc Barclays Execution Services Limited	18 December 2007 – 1 August 2012	2 August 2012 – 31 January 2013
Barclays Capital Inc.	14 December 2009 – 31 July 2012	18 December 2007 – 13 December 2009 and 1 August 2012 – 31 January 2013
Citibank N.A. Citigroup Inc.	18 December 2007 – 31 January 2013	None.
MUFG Bank, Ltd. Mitsubishi UFJ Financial Group, Inc	8 September 2010 – 12 September 2011	18 December 2007 – 7 September 2010 and 13 September 2011 – 31 January 2013
J.P. Morgan Europe Limited J.P. Morgan Limited JPMorgan Chase & Co. JPMorgan Chase Bank N.A.	26 July 2010 – 31 January 2013	18 December 2007 – 25 July 2010
NatWest Markets Plc The Royal Bank of Scotland Group Plc	18 December 2007 – 19 April 2010 and 14 September 2010 –8 November 2011	20 April 2010 – 13 September 2010 and 9 November 2011 – 31 January 2013
UBS AG	14 December 2009 – 31 January 2013	18 December 2007 – 13 December 2009