O’Higgins and Evans to appeal tribunal ruling on FX class actions

The Pensions Regulator (TPR) former chairman, Michael O’Higgins, and Competitions and Market Authority (CMA) former inquiry chair, Phillip Evans, have announced their intentions to appeal the tribunal decision to proceed with foreign exchange (FX) class actions on an opt-in basis.

The Competition Appeal Tribunal decided that the £1bn+ class actions on FX rigging against Barclays, Citigroup, JP Morgan, RBS and UBS would not take place on an opt-out basis, and invited the proposed class representative to apply for opt-in proceedings.

O’Higgins and Evans had submitted two separate claims, the ‘UK Foreign Exchange Cartel Claim’ and the ‘FX Claim UK’ respectively.

The banks, alongside MUFG, were fined more than €1bn by the European Commission in May 2019 for trading plans for foreign exchange deals, a breach of EU competition law.

However, these class actions are seeking civil redress for investors, including pension schemes, asset managers and private investors.

The tribunal ruled that the cases would proceed on an opt-in basis, rather than opt-out, primarily due to opt-in proceeding being more ‘practicable’ and concerns over the strength of the claims.

Of the three members of the tribunal, one, Paul Lomas, disagreed with the tribunal’s majority decision.

Commenting on the ruling, O’Higgins said: “This decision is extremely disappointing, because this claim is exactly the sort of the claim that opt-out proceedings were introduced to facilitate in order to provide access to justice to all entities affected by the illegal behaviour of cartelists.

“The application I brought was based on strong foundations, solid legal and economic principles and evidence from distinguished experts.

“In particular, it followed the binding European Commission decisions in which the banks conceded liability and similar proceedings in the US, where the banks agreed to a settlement of over $2bn.

“In order to best serve the class that we seek to represent we have decided to appeal yesterday’s decision.”

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