The European Commission fined the banks more than €1bn collectively. Since the fines are not used to compensate victims of the banks’ illegal conduct, Michael O’Higgins FX Class Representative Limited is seeking to bring a collective action claiming compensation on the victims’ behalf. Michael O’Higgins FX Class Representative Limited has instructed Scott+Scott UK LLP to act for it in the claim.
The claim is a collective action against (1) Barclays Bank PLC; (2) Barclays Capital Inc.; (3) Barclays Execution Services Limited; (4) Barclays PLC; (5) Citibank N.A.; (6) Citigroup Inc.; (7) JPMorgan Chase & Co.; (8) JPMorgan Chase Bank, National Association; (9) J.P. Morgan Europe Limited; (10) J.P. Morgan Limited; (11) NatWest Markets Plc; (12) The Royal Bank Of Scotland Group plc; and (13) UBS AG.
All of these banks have been named in one or both of the European Commission decisions dated 16 May 2019, together with MUFG Bank (formerly Bank of Tokyo-Mitsubishi).
Collective actions are a form of court procedure, introduced to the UK by the Consumer Rights Act 2015, that enable a class representative to bring proceedings on behalf of numerous persons affected by an infringement of EU or UK competition law. Collective actions combine individual claims that raise the same, similar, or related issues of fact or law (known as ‘common issues’). This group of individuals is known as the “class.” The class representative is responsible for running all aspects of the case before the Competition Appeal Tribunal (CAT), including those aspects for which claimants would normally be responsible.
Collective proceedings can be ‘opt-in’ (where each class member actively signs up to participate in the proceedings) or ‘opt-out’ (where each person within the class is automatically included in the proceedings unless they actively choose not to be).
Before a collective action can proceed, the Competition Appeal Tribunal must make a collective proceedings order (“CPO”) authorising the class representative and certifying the claims as eligible to be included in collective proceedings. When the CPO has been made, the matter progresses to a trial of the common issues (and determination of any individual issues) unless the case settles first. After success at trial or settlement, the damages are distributed amongst the class members using a distribution method approved by the Competition Appeal Tribunal.
This claim is on an opt-out basis for UK domiciled claimants and opt-in basis for non-UK domiciled claimants.
Anyone (including businesses) domiciled in the UK who has entered into relevant FX trades is automatically included within the claim, though they can opt out of the claim if they choose to.
Anyone (including businesses) who is not domiciled in the UK but has entered into relevant FX trades can still take part in the claim, but will need to take steps to opt in.
Further information on how to opt in or opt out will be available on this website after the claim has been certified. In the meantime, if you would like to be kept up to date on developments in the case, including on how to opt in or out at the appropriate time, please register your interest here.
Michael O’Higgins FX Class Representative Limited is representing the victims of the foreign exchange cartels. Michael O’Higgins FX Class Representative Limited is a special purpose vehicle incorporated to bring this claim, as the complexity and possible long duration of the claim means that it is more appropriate that the class be represented by a company rather than an individual. Michael O’Higgins is the sole director and sole member of the company, which is incorporated in England & Wales.
Mr O’Higgins is an economist who has deep experience in business and the public sector, with a particular emphasis on pensions. He is the current Chairman of the Local Pensions Partnership. He has previously been Chairman of the Channel Islands Competition and Regulatory Authorities, Chairman of the Pensions Regulator, Chairman of the NHS Confederation, Chairman of the Audit Commission, a non-executive director and Chair of the Audit Committee for Her Majesty’s Treasury, Chairman of Centrepoint, Chairman of a venture capital trust, Managing Partner of PA Consulting, a partner at Price Waterhouse (now PwC) and an academic at various universities (including the University of Bath, the London School of Economics, the Australian National University, and Harvard University).
As director of Michael O’Higgins FX Class Representative Limited, Mr O’Higgins is ideally placed to run this claim on behalf of those who have suffered loss as a result of the banks’ illegal conduct. To assist with decision-making, there will be an independent advisory committee which will include individuals with an understanding of the legal or foreign exchange trading sectors. This advisory committee will be headed by Sir Christopher Clarke, a former Lord Justice of Appeal of the Courts of England and Wales. The other members are Ian Pearson, a former Treasury Minister, and Damian Mitchell of DSquare (a highly experienced FX trader).
As class representative, Michael O’Higgins FX Class Representative Limited will conduct the claim on behalf of the class. It will instruct the specialist lawyers and experts, make decisions on the conduct of the claim and, in particular, will decide whether to present any offer of settlement that the banks may make to the Competition Appeal Tribunal for its approval. The class representative will be responsible for communicating with the class and issuing formal notices to class members through various means, including posting notices on this website.
Michael O’Higgins FX Class Representative Limited has instructed Scott+Scott UK LLP as solicitors for the claim. Scott+Scott UK LLP is a specialist dispute resolution firm whose solicitors have extensive expertise in competition litigation. Its US affiliate, Scott+Scott Attorneys at Law LLP, instigated and is co-lead counsel in a class action in the United States against sixteen banks for manipulation of the FX market in breach of US antitrust law. To date, in the US class action, lead counsel has negotiated settlements totalling over $2.3bn with fifteen of the sixteen banks. Michael O’Higgins FX Class Representative Limited has also instructed a highly experienced barrister team from Brick Court Chambers, one of the leading sets at the Bar.
Michael O’Higgins FX Class Representative Limited has instructed a group of experts, including academics who specialise in FX microstructure, former traders, quantitative analysts, competition economists and forensic accountants. These experts will be responsible for calculating the damages suffered by victims of the cartels as a result of the banks’ manipulation of the foreign exchange market.