The cartels concerned spot trading in the G10 currencies, covered the whole of the European Economic Area and were in operation between 18 December 2007 and 31 January 2013. For more information on the cartels please see Question 4.
Mr Evans seeks to bring this claim in order to seek damages to compensate businesses and individuals who entered into spot transactions and/or outright forward transactions involving G10 currencies with the banks listed in Question 3 or other relevant financial institutions between December 2007 and January 2013.
The claim alleges that these businesses and individuals suffered losses as a result of the anti-competitive behaviour identified by the Commission. In particular, it will be argued that these persons may have paid more when buying G10 currencies, or received less when selling G10 currencies, in a spot or outright forward transaction, as a result of the cartels.
If you or your business entered into FX spot or outright forward transactions between December 2007 and January 2013, you may be eligible to participate in the claim and benefit from any future award of damages. Register your interest here.
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.
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
- 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.
Such proceedings can be ‘opt-in’ (where each potential class member must sign up in order to be part of the claim) or ‘opt-out’ (where each person that falls within the class or classes is automatically included in the proceedings unless they actively choose to opt out).
A person wishing to bring collective proceedings as a class representative must first obtain permission from the Competition Appeal Tribunal for the claim to proceed. This is known as obtaining a Collective Proceedings Order (CPO). The Competition Appeal Tribunal will decide whether to grant a CPO by considering whether: (a) the class representative is suitable to bring the claim; and (b) the claims are eligible to be included in collective proceedings.
Mr Evans is bringing an application for a CPO. He seeks to obtain the permission of the Tribunal to bring proceedings on behalf of two classes of persons who it is alleged have suffered losses due to the Banks’ participation in FX spot trading cartels.
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.
An application has been made to the Competition Appeal Tribunal for a collective proceedings order (CPO). Before making a CPO, the Tribunal will decide whether to give permission for the claim to proceed as a collective action, and whether the class representative is suitable to bring the claim.
The Tribunal considered Mr Evans’ application during a hearing between 12 and 16 July 2021. It heard Mr Evans’ application at the same time as another application for permission to bring collective proceedings relating to the foreign exchange spot trading cartels, filed by Michael O’Higgins FX Class Representative Limited. As a result, the Tribunal had to decide which of the proposed class representatives was the most suitable to act as the class representative in what is known as a ‘carriage dispute’.
The Tribunal delivered its judgment on certification and carriage on 31 March 2022 and: (a) found that the proceedings should be certified as collective proceedings but declined to certify them on an opt-out basis; and (b) agreed that, if the claims were to continue on an opt-out basis, the Tribunal would decide carriage in favour of Mr Evans’ application, FX Claim UK.
On 4 October 2022, the Tribunal granted Mr Evans permission to appeal its judgment. In its reasoned order, the Tribunal considered that there was a “real prospect” of Mr Evans persuading the Court of Appeal that the Tribunal’s decision not to certify the claims on an opt-out basis was erroneous in law. We expect that Mr Evans’ appeal will be heard by the Court of Appeal in 2023. Michael O’Higgins FX Class Representative Limited also seeks to challenge the Tribunal’s judgment and we expect its challenge to be heard at the same time as Mr Evans’ appeal.
Mr Evans, formerly an Inquiry Chair at the CMA and a Senior Policy Adviser at Which?, the UK consumer association, has worked tirelessly on behalf of victims of anti-competitive conduct for the last 20 years. An economist, he is currently also Special Adviser for Competition, Consumer and Trade Policy at FIPRA International, an independent European public affairs consultancy firm.
As Inquiry Chair at the Competition and Markets Authority and Panel Member at the Competition Commission, Mr Evans was involved in running substantial investigations in the field of competition law. He also spent nearly a decade at Which?, where he worked to promote fair markets and competition policy for the benefit of consumers in a range of sectors, including financial services. Mr Evans has also taught at several universities, and has written on topics ranging from trade and competition policy to the history and functioning of markets and corporate responsibility.
With such a breadth of knowledge and experience, Mr Evans is well placed to bring this claim on behalf of class members who have suffered losses due to the Banks’ conduct.
Mr Evans has instructed Hausfeld (a leading disputes only specialist law firm with offices in London, Brussels, Paris, Berlin and Düsseldorf, Stockholm and throughout the US). Hausfeld is also co-lead counsel in the US FX class action, which has recovered over $2.3 billion for those affected by FX misconduct in the US. Mr Evans has also instructed a team of barristers at Brick Court Chambers, who have extensive experience in the field of competition law claims for damages.
Mr Evans has also instructed experts and engaged a consultative panel, chaired by Lord Carlile of Berriew QC, a crossbench member of the House of Lords who was a part time judge for 28 years in the High Court and the Competition Appeal Tribunal.
For more information about Mr Evans, the specialist lawyers and the experts he has instructed, please see the About page.
During the proceedings, Mr Evans will be responsible for communicating with the classes and for issuing formal notices. Communication will occur via updates and announcements on this website, email correspondence, and written notices. If you would like to be kept up to date on developments in the claim, please register your interest.
11. How does the class representative secure approval from the Competition Appeal Tribunal to bring collective proceedings?
The question as to whether the claims are eligible to be brought as collective proceedings will be decided on the basis of whether the claims sought to be included: (i) are brought on behalf of an identifiable class (or classes) of persons; (ii) raise common issues; and (iii) are suitable to be brought in collective proceedings.
Class Member Information
The full proposed class definition can be found here and should be read carefully. To summarise, the classes will encompass persons who entered into:
- one or more FX Spot Transactions and/or FX Outright Forward Transactions;
- involving a G10 Currency pair;
- with any of the Banks and/or a Relevant Financial Institution;
- in the European Economic Area between 18 December 2007 and 31 January 2013.
It is important to note that certain persons (known as “Excluded Persons”) and certain transactions (known as “Excluded Transactions”) do not fall within the claim. For further details, please see the full class definition.
If you or your business is domiciled in the UK and falls within one or both of the classes, 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 is not domiciled in the UK and you wish to participate in the collective action, then you will have the opportunity to opt in to the claim. Further details are provided at Question 7.
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:
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. Copies of the experts’ reports are available on request by emailing email@example.com.
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.
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.
The claim relates to transactions involving a pair of the G10 currencies, which are:
- British Pound;
- Japanese Yen;
- Swiss Franc;
- US Dollar;
- Canadian Dollar;
- New Zealand Dollar;
- Australian Dollar;
- Danish Krone;
- Swedish Krona; and
- Norwegian Krone.
For the avoidance of doubt, Mr Evans does not allege that any of the Relevant Financial Institutions participated in the cartels. Instead, he believes that the cartels had wider effects on the market, which would have affected the pricing of transactions entered into with other major banks offering FX trading services. As a result, transactions entered into with Relevant Financial Institutions are included in the claim.
The list of Relevant Financial Institutions has been compiled based on identifying institutions that report into two major surveys of FX turnover conducted in the UK: the Bank of England Foreign Exchange Joint Standing Committee’s semi-annual turnover survey, and the Bank of International Settlements’ Triennial Central Bank Survey of Foreign Exchange and Over-the-counter Derivatives Markets. Therefore, the list encompasses the main institutions offering FX trading services to customers in the UK.
If you are in this category and do not opt in, you will not be eligible to claim a share of any compensation that might be recovered in this collective action.
It is likely that those persons seeking to opt in to the claim may be required to provide some evidence of their FX spot transactions and/or outright forward transactions. Further details will be provided on this as the claim progresses.
Electronic platforms include:
- Single-bank platforms (e.g. BARX operated by Barclays, CitiVelocity, operated by City and UBS Neo FX);
- Multi-bank platforms (e.g. FXAll and Hotspot); and
- Dealer-only platforms (e.g. EBS and Reuters).
If you would like to know whether your pension fund or investment fund is participating in the claim, or have any other questions, we encourage you to contact the fund directly.
21. Am I a class member if I bought money at a bureau de change or high street bank, or withdrew in a foreign currency from my UK bank account?
If you or your business is not domiciled in the UK and you wish to participate in the collective action, then you will have the opportunity to opt in to the claim. Full details of how to opt in to the collective action will be posted on this website in the event that the Competition Appeal Tribunal approves the claim to proceed. You can register your details here to be kept up to date with further developments in the proceedings.
In the event the claim is successful and damages are awarded, or a settlement is agreed with the Banks, the damages or settlement sum will be divided between the members of the classes. The amount that you receive may depend upon the volume of FX trading carried out by you or your business. We recommend that you keep all records of your FX trades entered into between 18 December 2007 and 31 January 2013, as this information may be needed as part of claiming your share of any damages or settlement sum.
26. How does this claim differ from the claim made by Michael O’Higgins FX Class Representative Limited?
The main differences between the O’Higgins’ Application and Mr’s Evans’ claim are:
- Mr Evans obtained non-confidential versions of the European Commission’s decisions regarding the foreign exchange spot trading cartels pursuant to the EU’s Access to Documents Regulation prior to filing his Application. This enabled Mr Evans and his legal team and experts to scrutinise those decisions and to ensure that the Application reflected fully their content. The O’Higgins’ Application was filed earlier. It is understood that at the date of filing the O’Higgins Application was based only on the European Commission’s short press release;
- The O’Higgins Application has one class while the Evans Application involves two separate classes;
- The O’Higgins Application is not being brought against MUFG Bank, Ltd. or Mitsubishi UFJ Financial Group, Inc who are named addressees of the “Essex Express” decision; and
- The O’Higgins Application includes transactions with 39 financial institutions other than the Banks. Mr Evans’ Application includes transactions with 57 Relevant Financial Institutions.
Click here for more information on the proposed class definition in Mr Evans’ claim.
For more information about the O’Higgins Application, please see the website, accessible here.
We consider it is likely that the Competition Appeal Tribunal will review both Mr Evans’ application to bring collective proceedings, along with the O’Higgins Application, in order to decide whether one or both of the claims should be permitted to proceed as collective proceedings. We will provide more information via this website as the cases progress.
Hausfeld & Co LLP’s US affiliate, Hausfeld LLP, is co-lead counsel in a class action against sixteen banks for manipulation of the FX market in the US. To date, settlements totalling over $2.3 billion have been reached with fifteen of the sixteen banks on behalf of those affected by FX misconduct.
There is a similar class action in Canada. Transactions included in the Canadian proceedings are excluded from this claim: see the class definition. For more information on the Canadian class action, see here.
There is also a similar class action in Australia. Again, transactions included in the Australian proceedings are excluded from this claim: see the class definition. For more information about the Australian class action, see here.
In the unlikely event that you register and the Competition Appeal Tribunal orders the identities of those who register their interest to be disclosed to the Banks, we will endeavour to contact you to give you an opportunity to de-register before such disclosure is made.
Members of the classes or third parties with an interest (who are not members of the proposed classes) were also able to seek permission to make written and/or oral submissions at the CPO application hearing on 12 July 2021 by making an application for such permission, supported by reasons, to the Tribunal by 4pm on 4 May 2021. More information can be found here.
The Tribunal did not receive from any person with an interest objections or applications to make submissions during the CPO application hearing.
Therefore, joining the claim costs nothing. All costs will be met by Mr Evans’ funding and ATE insurance arrangements.
For more information regarding Mr Evans’ funding and ATE insurance arrangements, please see the following witness statements which are available here:
Copies of certain of Mr Evans’ funding and ATE insurance documents are available on request by emailing firstname.lastname@example.org.