March 2015 Newsletter

INSIDE THIS ISSUE

•  First Settlement Reached in FX Benchmark Manipulation Case

•  Scott+Scott Defeats Defendants’ Motion to Dismiss in the FX Benchmarks Case

 Scott+Scott Appointed as Co-Lead Counsel in Home Depot Data Security Breach Litigation

•  Federal Judge Rules American Express Violated Antitrust Laws

•  Conferences and Educational Seminars

First Settlement Reached in FX Benchmark Manipulation Case

 

On January 30, 2015, Scott+Scott filed a motion for preliminary approval of a settlement with JPMorgan in In re Foreign Exchange Benchmark Rates Antitrust Litigation, Case No. 13-cv-07789 (LGS) (S.D.N.Y).  JPMorgan is the first defendant to settle the claims.  

JPMorgan agreed to pay $99.5 million to settle its portion of the antitrust lawsuit, which accuses the 12 largest currency dealers of rigging prices in the $5.3 trillion-a-day foreign exchange market.  JPMorgan also agreed to cooperate in providing information to assist in the prosecution of the claims against the remaining defendants.  This cooperation includes proffers, production of transaction data, production of documents (including documents produced pursuant to government regulatory investigations), interviews, depositions, and declarations/affidavits involving certain designated JPMorgan officials.  

David R. Scott, managing partner of Scott+Scott, commented that “this crucial first settlement offers victims not just monetary relief, but cooperation from JPMorgan that will support their claims against the remaining eleven major banks that entered into the long-running conspiracy to manipulate the FX market.”  Christopher M. Burke, head of Scott+Scott’s antitrust practice group, stated, “This settlement is a significant early victory for the class, especially given the prominence of JPMorgan and their lawyers.  We believe it will assist us in prosecuting this matter to a successful conclusion.”  

Scott+Scott is co-lead counsel for plaintiffs and the proposed class.

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Scott+Scott Defeats Defendants’ Motion to Dismiss in the FX Benchmarks Case

 

On January 28, 2014, the U.S. District Court for the Southern District of New York denied Defendants’ motion to dismiss the complaint, in In re Foreign Currency Benchmark Antitrust Litigation, Case No. 13-cv-07789 (LGS) (S.D.N.Y.), an antitrust class action against the world’s major currency dealers.  Defendants include Bank of America, Barclays, BNP Paribas, Citigroup, Credit Suisse, Deutsche Bank, Goldman Sachs, HSBC, JPMorgan, Morgan Stanley, RBS, and UBS.  Scott+Scott is co-lead counsel for plaintiffs and the proposed class.

 

Plaintiffs allege that foreign currency traders at the defendant banks exchanged sensitive market information to execute a variety of strategies to collusively move benchmark FX rates.  The key benchmark rates at issue are known as the WM/Reuters closing fix, which is set at 4 p.m. London time (11 a.m. New York time), and is based on actual trades and order rates recorded by Reuters during a one-minute fix period.  Reuters than calculates the benchmark using the median of the reported trades and orders.

The Court found that the plaintiffs sufficiently alleged the existence of a conspiracy, and that each defendant’s participation in the conspiracy was sufficiently alleged.  In support of the inference of anticompetitive activity, the Court listed, among other things, the names of the traders’ chat room groups, as well as the settlements several defendants reached in the parallel regulatory investigations.

On November 11, 2014, four financial regulators, the United Kingdom Financial Conduct Authority, the Commodity Futures Trading Commission, the Office of the Comptroller of the Currency, and the Swiss Financial Market Supervisory Authority, announced that six banks will pay a combined $4.25 billion in penalties.  Those banks are JPMorgan, Citigroup, UBS, RBS, HSBC, and Bank of America.

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Scott+Scott Appointed as Co-Lead Counsel in Home Depot Data Security Breach Litigation

On February 17, 2015, the Honorable Judge Thomas Thrash of the United States District Court for the Northern District of Georgia appointed Scott+Scott, Attorneys at Law, LLP to serve as co-lead counsel to represent a class of financial institutions in the Home Depot data security breach litigation.  The case is captioned In re: The Home Depot, Inc., Customer Data Security Breach Litigation, No. 1:14-md-02583-TWT (N.D. Ga.). 

Two general categories of cases have been filed against Home Depot, one by consumers and one by financial institutions, such as banks and credit unions.  The Court, at the parties’ suggestion, has established separate litigation tracks for the consumers’ and financial institutions’ cases.  This will allow discovery and pre-trial work to proceed on a coordinated basis, while still allowing the parties to litigate issues confined to the separate tracks on an independent basis.

The financial institution plaintiffs have been forced to reissue millions of credit and debit cards for consumers whose data may have been stolen.  This process costs several dollars per card, and imposes substantial costs on the financial institutions.  Furthermore, the financial institution plaintiffs incur administrative expenses and overhead charges dealing with monitoring and preventing fraud, and must also reimburse fraudulent charges and lose interest and transaction fees.

In September 2014, Home Depot first acknowledged that a massive data security breach occurred at its retail stores between approximately April and September 2014.  In a September 18, 2014 press release, Home Depot stated that “[t]he cyber-attack is estimated to have put payment card information at risk for approximately 56 million unique payment cards.”  This represents one of the biggest data security breaches in American history.  Initial calculations from BillGuard, a private security firm, estimate that the accounts compromised in the data security breach could result in $2-3 billion in fraudulent charges.  Home Depot remains the subject of numerous federal and state investigations, including those launched by several state attorneys general as well as U.S. Senate and federal regulatory inquiries.

If you represent a financial institution that may have incurred costs by virtue of the Home Depot data security breach, please contact Scott+Scott partner Joseph P. Guglielmo at jguglielmo@scott-scott.com to explore potential legal options.

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Federal Judge Rules American Express Violated Antitrust Laws

On February 19, 2015, Federal District Judge Nicholas G. Garaufis of the United States District Court for the Eastern District of New York ruled that American Express’ “anti-steering” contract provisions violated antitrust laws, and harmed merchants and consumers.  The Court issued its long-awaited opinion after the culmination of a seven week trial during the summer of 2014.  Attorney General Eric Holder lauded the decision as a “triumph for fair competition and for American consumers.”

In 2010, the United States Department of Justice and 18 state attorneys general sued American Express, Visa Inc., and MasterCard International Inc., challenging each network’s anti-steering rules as anticompetitive restraints on trade in violation of Section 1 of the Sherman Antitrust Act.  The 17 plaintiff states were Arizona, Connecticut, Hawaii, Idaho, Illinois, Iowa, Maryland, Michigan, Missouri, Montana, Nebraska, New Hampshire, Ohio, Rhode Island, Tennessee, Texas, Utah, and Vermont.  While Visa and MasterCard entered into consent decrees with the Government pursuant to which they agreed to remove their anti-steering provisions from merchant contracts, American Express elected to litigate the case. 

American Express’s anti-steering contract provisions, termed “Non-Discrimination Provisions” in their contracts with merchants, prevented approximately 3.4 million merchants who accept American Express brands from steering customers to alternative credit card brands with lower “swipe fees.”  The United States Department of Justice argued that price competition over merchant swipe fees has been almost non-existent as a result of the credit card networks’ anti-steering provisions. 

At trial, merchants explained both the substantial costs they incur when their customers pay with credit cards, and their inability to garner competition among credit card networks to lower their prices. The anti-steering provisions not only prevent merchants from offering customers lower prices or other incentives to use a card with lower swipe fees, they also prevent merchants from providing customers with price information about the cost of swipe fees of different credit cards.  The Court found that there was nothing to offset credit card networks’ incentives to charge merchants inflated prices for their services. 

American Express’ anti-steering provisions resulted in increased prices for consumers because merchants passed on most, if not all, of their additional credit card acceptance costs to their customers in the form of higher retail prices.  These higher retail prices affect not only those customers who use American Express cards, but also those customers who instead prefer to pay using a different credit card, debit card, check, or cash. 

The Court concluded that the removal of anti-steering provisions in merchant contracts would restore competition resulting in lower swipe fees charged to merchants by American Express and its competitors and lower retail prices for consumers. 

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Conferences and Educational Seminars

 

March Events in the USA

 

 

+March 7-10, 2015

 

California Association of Public Retirement Systems (CALAPRS)

Monterey Marriott

Monterey, California

 

The main focus of CALAPRS General Assembly conference is to provide an educational and informational forum for the public retirement systems in the state of California.  Various service providers, university professors, as well as professional retirement organizations, such as National Institute on Retirement, will give educational presentations. The program generally offers practical guidance in a “Post-GASB World: New Rules and Emerging Guidance” and actuarially assumed rates of return.

 

 

             +March 10, 2015

 

              Investment Consultants Forum produced by Opal Financial Group

              Marriott Marquis, Times Square

              New York, New York

 

Opal is an innovative, forward-thinking organization aimed at bringing public pension leaders up to-date with the latest information regarding public pension management.  This annual forum will provide a unique environment for developing dialogue between plan sponsors, managers and consultants, and will feature panel-driven discussions.  Topics will include marketing to plan sponsors – from RFPs to Finals Presentations, Proper Industry Practices for service providers and the 2015 market outlook. Complimentary registration is available for representatives of public pension and Taft-Hartley funds.

           

 

  +March 10, 2015

 

             Family Office Winter Forum sponsored by Opal Financial Group

             Marriott Marquis, Times Square

             New York, New York

 

This event will focus on the role of the consultant which is evolving into more than evaluating investment managers. The future of U.S. Equity investing will be a primary topic at the one day conference.  Focus will be on what the right amount to allocate to U.S. versus non-U.S. investment equities and their associated risks.

 

 

+March 23-25, 2015

 

National Association of State Treasurers (NAST) Annual Legislative Conference

             Mandarin Oriental Hotel

             Washington, DC

 

The National Association of State Treasurers is a professional, nonpartisan organization that provides a forum for the exchange of information in state finance.  In addition to the legislative

conference  NAST offers a variety of educational conferences throughout the year designed to

assist state finance officials. These conferences provide NAST members with an opportunity to meet and discuss matters of mutual concern, as well as exchange information regarding best practices and innovative policies. Topics will cover broad economic policy issues, financial regulatory reform, tax reform, pension fund issues, legislative efforts on behalf of state 529 education savings plans, municipal bond issues, and the 2015 economic outlook.  The College Savings Plan Network (CSPN) is an affiliate of NAST.

 

 

+March 22-24, 2015

 

PA County Commissioners Spring Conference (PA CCAP)

Hilton Conference Center

Harrisburg, PA

 

The County Commissioners Association of Pennsylvania is a statewide, nonprofit, bipartisan association representing the commissioners, chief clerks, administrators, their equivalents in home rule counties, and solicitors of Pennsylvania's 67 counties.  The County Commissioners’ Association of Pennsylvania (CCAP) and its member counties are committed to excellence in county government.  CCAP advocates for and provides leadership on those issues that will enhance and strengthen the ability of county commissioners to better serve their citizens and govern more effectively and efficiently.  The Association strives to educate and inform the public, administrative, legislative and regulatory bodies, decision makers, and the media about county government.

 

 

+March 23-25, 2015

 

Georgia Association of Public Pension Trustee (GAPPT) Annual Trustee School

Macon Marriott City Center

Macon, GA

 

             The Georgia Association of Public Pension Trustees is hosting its second Annual Certified Pension Plan Trustee School with the aid and expertise of its dedicated service providers.  GAPPT is a nonprofit association formed solely to promote and support the education and development of the Trustees and Administrators of Georgia’s Public Pension Funds. The Trustee Certification school is open to all members of GAPPT.  The two day program will be followed by an exam day.  The Curriculum is designed to deal with pension administration, investing, funding, and actuarial topics.

Certified Public Pension Trustee by attending the 2014

 

+March 28- April 1, 2015

 

Texas Public Employees Retirement System (TEXPERS) 26th Annual Conference

Sheraton Conference Center

Austin, Texas

 

The Texas Public Employees Retirement System is sponsoring their 26th Annual conference.  The primary goal is for trustees to receive educational information about investment options, fiduciary duties, governance, ethics, investment terms and practices, and actuarial and legal matters.  The Austin conference offers and encourages attendees to participate in Saturday’s Trustee School. Many attendees use this training opportunity to become certified trustees.  The Austin conference concludes with legislative visits to the Texas Capitol and recognition of state legislators and representatives who support the TEXPERS’ mission.

           

 

 

 

 

            Union and Taft Hartley Conferences

 

            +March 15-19, 2015

            New York Building and Construction Trades Conference (BCTD)

            Westin Diplomat Hotel

            Hollywood, Florida

                  

 

 

            Government Finance Officers’ Association Conferences

 

            +March 8-11, 2015

             Oregon Municipal Finance Officers’ Association (OMFOA)

             Salishan Lodge

             Gleneden Beach, Oregon

             www.omfoa.org

   

 

           +March 25-27, 2015

            New York State Government Finance Officers’ Association (NYSGFOA)

            Albany Marriott Hotel

            Albany, New York

            www.nysgfoa.org

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Scott + Scott LLP is a nationally recognized law firm headquartered inConnecticut with offices in New York City, Ohio and California. The firm represents individual as well as institutional investors who have suffered from corporate stock fraud. Scott+Scott has participated in recovering billions of dollars and achieved precedent-setting reforms in corporate governance on behalf of its clients. In addition to being involved in complex shareholder securities and corporate governance actions, Scott+Scott also has a significant national practice in antitrust, ERISA, consumer, civil rights and human rights litigation. Through its efforts, Scott+Scott promotes corporate social responsibility.

Scott+Scott’s PT+SM System is the firm’s proprietary investment portfolio tracking service. Carefully combining the firm’s proprietary computer-based portfolio monitoring software with Scott+Scott’s hands-on approach to client  relations is a proven method for institutional investors and their trustees to successfully

  • Monitor their investment portfolios  
  • Identify losses arising from corporate fraud    
  • Consider what level of participation any given situation requires   
  • Recover funds obtained on their behalf through investor litigation action  

To obtain more information about Scott+Scott’s PT+SM services or to schedulea presentation to fund trustees, fund advisors or asset managers, please contact:    David R. Scott + Toll Free: 800.404.7770     email: drscott@scott-scott.com + UK Tel: 0808.234.1396