We’ve covered In re Mexican Government Bonds Antitrust Litigation, 18-cv-02830 (In re MGB) pretty extensively in the past – see our most recent posts here, and here, and see here for the whole collection – so we thought it was appropriate to share one more post to wrap up our discussions of the settlements, and where the case goes from here.
Settlements with JPMorgan Chase & Barclays
In late 2020, orders were filed preliminary certifying the class and approving settlements with both the JPMorgan Chase Defendants and with the Barclays Defendants To resolve the released claims, the Barclays Defendants agreed to pay a total of $5.7 million dollars, and JPMorgan Defendants a total of $15 million. The settlement agreements themselves can be found here (Barclays) and here (JP Morgan).
In September 2021, Plaintiffs filed for final approval of the settlement agreements. As their brief explains, the settlements require that JPMorgan and Barclays continue to provide cooperation, including the production of documents, as the litigation proceeds against the non-settling defendants. Plaintiffs went on to explain that the settlements were “fair, reasonable, and adequate,” as required by FRCP 23(e)(2); specifically, they argued that class representatives and class counsel adequately represented the class, as Plaintiffs suffered the same injury as other class members, and that the settlement itself was negotiated at arms’ length. Concerning substantive fairness, Plaintiffs point to the costs, risks, and delay of trial and appeal in a case which raises issues that are “complex and expensive to litigate.” They point specifically to the risks posed by the standard “battle of the experts,” which, Plaintiffs note, raises the risk that the result would be like so many in antitrust litigation history, where “plaintiffs succeeded at trial on liability, but recovered no damages, or only negligible damages, at trial, or on appeal.”
With respect to class certification, Plaintiffs largely relied on their prior arguments in support of the preliminary settlement, but noted, by way of additional support, that over 32,000 Notices and Claim Forms had been mailed to potential class members – more than sufficient to satisfy the numerosity requirement.
A fairness hearing was set for September 2021, and, after postponement to late October, the settlements were approved with no objections. The Court also issued an order awarding attorneys’ fees and litigation expenses, in the amount of $6,210,000 (or 30% of the Settlement Fund), to Plaintiffs’ lead counsel.
Reconsideration
Separate from the settlement with JPMorgan and Barclays, in May 2021 Plaintiffs moved for reconsideration of the Court’s order dismissing the second amended complaint against the non-settling Defendants. [1] The dismissal turned on personal jurisdiction issues, and the motion for reconsideration remains pending. In their brief in support of that motion, Plaintiffs largely relied on a recent Supreme Court decision, Ford Motor Co. v. Montana Eighth Jud. Dist. Ct., 141 S. Ct. 1017 (2021), which held that “due process does not require a ‘causal relationship’ between a defendants’ forum contacts and any element of the Plaintiffs’ claim.” Because the Court’s prior ruling on the motion to dismiss was based on the now-rejected “causation only” approach, the Ford decision has, according to Plaintiffs, created an “intervening change of controlling law” which required the Court to “revisit” its prior ruling on personal jurisdiction.
In opposition, the non-settling Defendants argued that, even under the new Ford standard, Plaintiffs were still required to demonstrate a “substantial connection” between their claims and the forum, and must show that the in-forum activities of the remaining Defendants were “related enough” to the antitrust claims at issue. Defendants’ position is that Plaintiffs could not make such showings because—unlike the Ford defendants—Defendants here did not conduct substantial business in New York, did not have a physical presence in the state, did not engage in regular business activities with New York-based customers, and, to the extent any contacts with the state were alleged, those contacts were “too tangential” to the claims at issue.
The reconsideration motion has been fully briefed since late June, 2021, but a decision is still outstanding. We’ll post about the outcome when we know it, and, until then, I’d encourage you to take a peek at some of our other blog series.
This post was written by Alexandra M.C. Douglas
[1] The non-settling Defendants are: Bank of America México, S.A., Institución de Banca Múltiple (“Bank of America Mexico”); BBVA Bancomer S.A., Institución de Banca Múltiple, Grupo Financiero BBVA Bancomer (“BBVA-Bancomer”); Banco Nacional de México, S.A., Institución de Banca Múltiple, Grupo Financiero Banamex (“Citibanamex”); Deutsche Bank México, S.A., Institución de Banca Múltiple (“Deutsche Bank Mexico”); HSBC México, S.A., Institución de Banca Múltiple, Grupo Financiero HSBC (“HSBC Mexico”); and Banco Santander (México), S.A., Institución de Banca Múltiple, Grupo Financiero Santander México (“Santander Mexico”)