In re: London Silver Fixing Ltd. - Antitrust Litigation
The essence of this pending litigation is this:
<CaL's analysis and commentary is inserted between paragraphs and bolded.>
“Plaintiffs in the Silver Fixing litigation — entities that purchased physical silver or financial instruments tied to the price of silver — allege that, until very recently, Deutsche Bank, HSBC, and the Bank of Nova Scotia (collectively “Defendant Banks”) participated in a pricesetting panel called The London Silver Market Fixing, Ltd.,1 which set global silver prices. Plaintiffs further allege that, via their participation in this price-setting panel, Defendant Banks conspired to manipulate the prices for physical silver and silver derivatives in violation of the federal commodity and antitrust laws. In essence, all of the putative class members in [this case] allege financial harm stemming from Defendants’ manipulation of the market for silver via the London Silver Fixing.” (Letter to court from attorneys for Plaintiffs).
On October 9, 2014, the Judicial Panel on Multidistrict Litigation centralized this multidistrict litigation before the Court under 28 U.S.C. § 1407, creating In re London Silver Fixing, Ltd., Antitrust Litigation, case number 14-MD-2573 (VEC) (“Silver Fixing”).
It is before Judge Valerie E. Caproni.
The next event pending is oral argument on the motion to dismiss, scheduled for hearing on April 18, 2016. All eyes will be watching.
Being multi-district, there are many cases that are combined into one single case for case management purposes, here they are, so far:
So far, the Plaintiffs (the ones doing the suing) are as follows (and one or more could be Turdites, who knows?), including those in an individual capacity, and on behalf of others similarly situated (the class action representatives):
J. Scott Nicholson
Modern Settings LLC - New York
Modern Settings LLC - Florida
American Precious Metals Ltd
Steven E. Summer
KPFF Investment, Inc.
The Plaintiffs are suing the following entities as Defendants:
Deutsche Bank AG
HSBC Bank PLC
HSBC Bank U.S.A. N.A.
HSBC Holdings plc
The Bank of Nova Scotia
The London Silver Market Fixing, Ltd
Deutsche Bank Americas Holding Corporation
DB U.S. Financial Markets Holding Corporation
Deutsche Bank Securities, Inc.
Deutsche Bank Trust Corporation
Deutsche Bank Trust Company Americas
Deutsche Bank AG, New York Branch
HSBC North America Holdings, Inc.
HSBC USA Inc.
The Bank of Nova Scotia
Scotia Holdings (US) Inc.
Scotia Capital (USA) Inc.
The Bank of Nova Scotia Trust Company of New York
The court appointed Lowey Dannenberg Cohen & Hart, PC and Grant & Eisenhofer, PA as lead class counsel, two superheavyweight law firms with tons of experience and a long successful track record. They are the real deal. If anyone wants to read up on their extensive experience, their application to be appointed class counsel is document 14, filed November 14, 2014.
A quick suggestion here, attorneys Barbara Hart and Linda P. Nussbaum would be EXCELLENT choices for Mr. TF to interview on an A2A. Just saying . . .
The first amended complaint was filed on January 26, 2015, as document number 34 on the court’s PACER docket. It is 133 pages long, not including the attachements.
Here is the table of contents, below. Use it to get a summary of the allegations, and to begin to understand the comprehensive nature of the lawsuit.
As an aside, I have no idea why such a well-crafted lawsuit, including the fact that it was basically a follow-on to the London Gold Fixing lawsuit, did not get reported extensively in the press.
This is a SENSATIONAL lawsuit. It essentially challenged a 117 year-old illegal price-fixing scheme, and essentially this lawsuit shut down the scheme within three months! Why did the CFTC take five years to do nothing? Thanks Bart, for nothing.
Anyhow, here is the table of contents from the First Amended Complaint:
“TABLE OF CONTENTS
I. NATURE OF THE ACTION ............................................................................................. 2
II. PARTIES ................................................................................................................... 7
B. Defendants ............................................................................................................ 10
1. The London Silver Market Fixing, Ltd..................................................... 10
2. Deutsche Bank Defendants....................................................................... 10
3. HSBC Defendants ..................................................................................... 13
4. Scotiabank Defendants.............................................................................. 15
5. UBS Defendants........................................................................................ 18
6. Jane Doe Defendants................................................................................. 22
7. Agents and Co-conspirators ...................................................................... 22
III. JURISDICTION, VENUE, AND COMMERCE ............................................................. 22
IV. FIXING MEMBER DEFENDANTS SET THE GLOBAL BENCHMARK PRICE OF SILVER DURING THE CLASS PERIOD ...................................................................... 24
V. THE SILVER FIX SETS THE PRICE OF PHYSICAL SILVER AND DIRECTLY IMPACTS PRICES FOR MULTIPLE SILVER INVESTMENTS ................................. 28
A. Physical Silver ......................................................................................... 28
B. Silver Financial Instruments ................................................................................. 30
VI. DEFENDANTS EXPLOITED AND ABUSED THEIR ADVANTAGEOUS POSITION AS SILVER FIX PANEL MEMBERS BY ENGAGING IN MANIPULATIVE AND COLLUSIVE CONDUCT TO CAUSE ARTIFICIAL SILVER PRICES DURING THE CLASS
A. Defendants Abused their Positions As Silver Fix Panel Members By Manipulating the Silver Fix to Levels That Did Not Reflect the Legitimate Supply and Demand for Silver
B. Defendants Used Their Advance Knowledge of the Silver Fixing Results to Establish
Positions in Silver Financial Instruments During the Silver Fix Before the Results Were Released to the Public............................................................... 38
VII. GOVERNMENT ENFORCERS HAVE BEEN INVESTIGATING THE SILVER FIX 41
A. Government Enforcers are Aware that the Silver Market is Open to Manipulation
1. The CFTC Identified Several Dates With Aberrant Silver Prices During the Class
2. Commercial Silver Traders Are Aware of Manipulation in the Precious Metals Market
B. Increasing Pressure to Expand Transparency Results in a Revamped Silver Fix. 48
VIII. THE DEMISE OF THE SILVER FIX.............................................................................. 49
A. Under Government Investigation, Deutsche Bank Put its Seat on the Silver Fixing Panel Up for Sale ..............................................................................................49
B. Deutsche Was Unable to Sell What Should Have Been a Valuable Seat ............. 50
C. Deutsche Resigned Unable to Sell its Seat ........................................................... 50
D. The Full Panel Announced it Would Be Disbanding............................................ 51
IX. THE LONDON SILVER PRICE HAS REPLACED THE SILVER FIX AS THE GLOBAL BENCHMARK PRICE FOR SILVER............................................................ 53
A. Fixing the Fix Between the Announcement and the Closing .............................53
1. The Search for a Replacement Started Almost as Soon as the Announcement That the Silver Fix Was Ending ...................................... 55
a. The LBMA.......................................................................................................... 56
2. After Search and Soliciting Bids, the LBMA Awarded the Replacement for the Fix to CME and Thomson Reuters................................................ 57
a. Consultation ....................................................................................................... 57
3. The LBMA Silver Price Launched on August 15, 2014........................... 60
4. The LBMA Methodology ......................................................................... 61
5. Concerns over the “New Fix” ................................................................... 62
X. ECONOMIC EVIDENCE FURTHER SUPPORTS COLLUSION AND MANIPULATION OF THE SILVER FIX DURING THE CLASS PERIOD ................ 64
A. Expert Analysis Reveals Systematic Suppression of Spot Market Silver Prices Throughout the Class Period.............................................................................. 64
B. Expert Analysis Has Identified Anomalous Silver Pricing Behavior at the Time of the
Silver Fixing................................................................................................. 86
1. Silver Prices Consistently Decrease Around the Start of the Silver Fixing
2. Anomalous Spikes in Both Trading Volume and Price Volatility Following the Start of the Silver Fixing Demonstrate Information Leaking to the Market
3. Informed Traders with Knowledge of the Fix Benefit Financially by Taking Advantage of the Observed Pricing Anomalies ......................... 100
C. Computer Analysis of COMEX Silver Futures Market Data has Identified Activity Around the Silver Fix Consistent with Informed Trading and Collusion ........................ 108
D. Plaintiffs were Injured by Transacting at Artificial Prices Proximately Caused by
Defendants’ Manipulative Conduct .................................................................... 116
XI. ANY OTHERWISE APPLICABLE STATUES OF LIMITATIONS ARE TOLLED BY DEFENDANTS’ ACTIVE AND FRAUDULENT CONCEALMENT......................... 117
XII. CLASS ACTION ALLEGATIONS .........118
XIII. CLAIMS FOR RELIEF.........................121
FIRST CLAIM FOR RELIEF CONSPIRACY IN UNREASONABLE RESTRAINT OF TRADE: SHERMAN ANTITRUST ACT ......................................................... 121
SECOND CLAIM FOR RELIEF CONSPIRACY IN UNREASONABLE RESTRAINT OF TRADE: DONNELLY ANTITRUST ACT ................................................. 122
THIRD CLAIM FOR RELIEF PRICE MANIPULATION: COMMODITY EXCHANGE
FOURTH CLAIM FOR RELIEF PRINCIPAL-AGENT LIABILITY: CEA................ 124
FIFTH CLAIM FOR RELIEF AIDING AND ABETTING: CEA ................................ 125
SIXTH CLAIM FOR RELIEF UNJUST ENRICHMENT COMMON LAW............... 126
XIV. PRAYER FOR RELIEF ...................................................................................127
A. Judgment of Violation of the Sherman Antitrust Act ......................................... 127
B. Standing under the Clayton Antitrust Act........................................................... 127
C. Judgment of Violation of the Donnelly Antitrust Act ........................................ 127
D. Judgment of Violation of the Commodity Exchange Act.................................127
E. Certification of Plaintiff Class under Rules 23(a) & (b) of the Federal Rules of Civil
F. Treble Damages ...............................................................................................128
G. Punitive Damages ............................................................................................... 128
H. Disgorgement and Restitution............................................................................. 128
I. Costs of Suit..................................................................................................... 128
J. Pre- and Post-Judgment Interest ......................................................................... 128
K. Reasonable Attorney’s Fees................................................................................ 128
L. Other Just and Proper Relief ............................................................................... 128
XV. DEMAND FOR JURY TRIAL .................................................................................. 128
Okay. Now that you have read all that, of course you totally understand the whole lawsuit, right?
In a nutshell, the plaintiffs are suing for antitrust violations, seeking lots and lots of money, claiming that the defendants engaged in a “contract, combination or conspiracy in restraint of trade,” a violation of the Sherman Antitrust Act, etc.
The lawsuit itself spells out the “Nature of the Action.” It is an easy read, and a must read. Here it is [without footnotes, as they only get in the way]:
“I. NATURE OF THE ACTION
Until very recently, the price of silver was set by a combination of three of the world’s largest multinational banks—the members of The London Silver Market Fixing, Ltd. The three banks are Deutsche Bank AG (“Deutsche”), HSBC U.S.A. Bank, N.A. (“HSBC”), and The Bank of Nova Scotia-ScotiaMocatta (“Scotiabank”) (collectively the “Fixing Members”).
The name of the process was the “Silver Fix.” The Silver Fix determined the benchmark price of silver worldwide from 1897 until August 14, 2014. A “City of London Institution,” the Silver Fix played a “crucial role in the roughly $30 billion a year global trade in silver,” although it had “lost its luster in recent years due to concerns about transparency and vulnerability to manipulation.”
The Fixing Members literally fixed the price of silver once per day, every business day, through a secure conference call, at noon, London time.4 There were no outside observers, and Plaintiffs are aware of no recordings or transcripts ever released. No regulatory body oversaw the Silver Fix. No one except Defendants have first-hand knowledge of what really occurred on the conference calls.
Through this clandestine device, these three Defendants, by their concerted action, dictated the price of physical silver and thereby the prices of silver financial instruments, such as silver futures and options, the prices of which are directly and proximately caused by, and directly linked to, the price of physical silver.
U.S. and European authorities are presently investigating the Silver Fix. In March 2013, the U.S. Commodity Futures Trading Commission (“CFTC”) said that it had “started internal discussions on whether the daily setting of gold and silver benchmarks is open to manipulation.” Just prior to this announcement, CFTC Commissioner, Bart Chilton, was quoted as saying, “We’ve witnessed blatant and brazen monkeying with the marks. . . . [T]he idea that pervasive manipulation, or attempted manipulation, is so widespread should make us all query the veracity of the other key marks. What about the gold and silver fixes in London . . . . Why would they be any different in the minds of those that may have sought to push or pull rates?”
These investigations led Deutsche Bank, which had been a Fixing Member for twenty years, to withdraw from the panel. Deutsche Bank tried to sell its seat on the panel, but, tellingly, there were no buyers.
In the wake of the pending governmental inquiries, Deutsche Bank’s resignation, and with only two panel members left, the Fixing Members announced that they would disband their combination as of August 14, 2014. A new process was set to replace the Silver Fix. “The century-old method of setting silver prices—daily chats among a small coterie of banks—[wa]s being scrapped for something more modern.”
In anticipation of the end of the Silver Fix, FORBES quoted Andrew Caminschi, “a researcher at the University of Western Australia and a subject matter expert,” to say: “The best part of the London Silver Price Fixing is that it will soon disappear.”
Mr. Caminschi, a recognized authority in the field, has conducted an extensive study of the Silver Fix, which outlines “undeniable” collusion and manipulation.12 He was interviewed regarding his important study in June 2014 by KITCO NEWS for an article entitled, Good News -- Silver Fix is Ending. The article quoted Caminschi to say about the Fix: “It is statistically undeniable . . . There is this trade advantage that is granted to the fix participants.” Caminschi’s study found that it was the statistically significant difference in prices of silver — both physical and futures — around the noon Silver Fix, that created a distinct tradable advantage of up to 40 basis points per day for the Fixing Members and other insiders, like Defendant UBS. This advantage persisted “in bull markets, bear markets, and everything in between” defying price trends in the broader market throughout the Class Period.
(A video interview of Professor Caminschi may be found at http://www.kitco.com/news/video/show/on-the-spot/733/2014-07-18/Good-News-Silver-Fix-Is-Ending--Andrew-Caminschi.)
The Class Counsel has retained Andrew Caminschi as an expert consultant for this case. His analysis, further alleged below, has uncovered anomalous pricing behavior around the time of the Silver Fix that is consistent with a systematic suppression of silver prices. This anomalous pricing behavior, which is highly indicative of pricing information being “leaked” to the silver market prior to the end of the Silver Fix, had a persistent impact on the prices of silver and silver financial instruments during the Class Period.
(See Andrew Caminschi, Any Silver Linings? London Silver Fixing Impact on Public Markets Before and After the Introduction of Contemporaneous Futures Trading (hereinafter Silver Linings), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2461098)
Mr. Caminschi has additionally demonstrated that this information leakage, which manifests itself in the form of anomalous spikes in both the trading volume of exchange traded silver futures and volatility of silver prices in the spot market prior to the end of the daily conference call, creates a significant advantage to “informed traders,” those with knowledge of the Fix, like the Defendants, compared to “uninformed” Class Members. Furthermore, the spikes in volume and volatility observed in the market while the Silver Fix is still ongoing, are highly suggestive of trading by the Fixing Members and their co-conspirators, as they place trades in the market prior to the Fix being released to the public to capitalize on their informational advantage.
The Class Counsel also retained Professor Rosa Abrantes-Metz, another expert economist in the field for this case. Professor Abrantes-Metz, as further alleged below, confirms that, throughout the Class Period, pricing dynamics around the Silver Fix are indicative of a systematic suppression of silver prices, with large price declines during the Silver Fix occurring at an abnormally high frequency. The size of these price decreases is also highly suspect, as they normally dwarf any price increases observed during the Silver Fix.
Professor Abrantes-Metz has also demonstrated that the impact of this systematic price suppression extends beyond the few minutes surrounding the Silver Fix, where large price drops are frequently observed, and extends to other days that do not exhibit such obvious price declines. This price impact is connected directly to the Defendants activity in the spot silver market, as represented by their bid and ask price quotes, which initiate the downward price trend observed around the start of the Silver Fix.
This Complaint thus follows government investigations, an extensive review of the evolving public record, ongoing analysis by leading economists in the field—including two prominent experts retained by counsel for Plaintiffs—and, significantly, the abrupt end of the Silver Fix—after 117 years in existence—on August 14, 2014.
The Complaint also follows the replacement of the “Silver Fix” with the “London Silver Price.” On May 14, 2014, it was announced that the Silver Fix would cease operations in three months. The venerable London Bullion Market Association (“LBMA”) and others quickly embarked on a search for a replacement for the Silver Fix. After bids by the likes of the London Metal Exchange, Intercontinental Commodity Exchange, and Platts, to run the new benchmarking process, the LBMA settled upon the CME Group and Thomson Reuters to run the new fix, which would replace the old fix, under a different name: the “London Silver Price.”
While losing the “unfortunate name,” in favor of a bland one, and the “private teleconference,” in favor of electronic trading, THE FINANCIAL TIMES reports that “anyone thinking there has been a complete change in the way the daily snapshot of the silver market is conducted would be mistaken. The new benchmark . . . keeps some of the main features of the silver fixing, in particular the auction-style process used to calculate the reference price.” Two of the other main features that continue are HSBC and Scotiabank, each of which is (or remains) on the London Silver Price panel.
The Silver Fix has finally ended. But the damage has been done. And it remains to be seen whether the new regime will be more than a name change. Plaintiffs, on behalf of themselves and a class of those similarly damaged, seek relief from This Honorable Court for Defendants’ antitrust violations, commodity manipulation, and unjust enrichment from at least January 1, 1999, through the date on which the effects of Defendants’ unlawful conduct cease.
Given the ongoing government investigations into the Silver Fix and the significant amount of economic evidence presented in this complaint, Plaintiffs believe that further evidentiary support for their claims, as alleged herein, will be revealed after a reasonable opportunity for discovery.”
So there you have it.
And, on top of this, as zerohedge has pointed out, and as Mr. TF pointed out, there certainly does appear to be an agreement by Deutschebank to turn over the goods as against the other defendants. This is remarkable. Why would DB do that? Is there a gun to its head? Did the Plaintiffs extract this concession in order to cut DB a sweetheart deal, knowing that DB is heading to bankruptcy, and realizing that something out of DB is better than nothing? That is what I think, but who knows?
With my conspiracy silver foil hat firmly in place, I expect that there will be many more revelations that come to light, or that the other defendants will just settle out rather than risk discovery, particularly in light of DB apparently willing to rat out on their counterparts. Again, this is extremely odd in my mind.
The history of the Silver Fix is set out in section IV.
It is a fun read. (Here are some articles written on it: London’s silver price fix dies after nearly 120 years, THE FINANCIAL TIMES (May 14, 2014), http://www.ft.com/intl/cms/s/0/db3188b8-db46-11e3-94ad-00144feabdc0.html?siteedition=intl#axzz38yxp1nAQ.
What’s The London Silver Fix, And Why’s It Going Away? THE WALL STREET JOURNAL (May 14, 2014), http://blogs.wsj.com/moneybeat/2014/05/14/whats-the-london-silver-fix-and-whys-it-going-away/.
It started 120 years ago.
“Until August 14, 2014, this “venerable City of London institution”28 was orchestrated by Defendant London Silver Market Fixing, Ltd. Each business day the three Fixing Members—Defendants Deutsche Bank, HSBC, and Bank of Nova Scotia met on a secure conference call at 12:00 pm London Time to fix the price of physical silver. The Silver Fix, which typically took less than 10 minutes, was conducted as a “Walrasian” or simultaneous auction led by one of the Silver Fix Members who was designated as the “Chairman.” The Chairman position rotated among the Silver Fix panel members each year.
The Silver Fix ostensibly started with the Chairman’s determination of what was considered to be the U.S. Dollar “spot price” or current market price of silver in the London market. This was the opening price for the auction. The Fixing Members would then begin trading at the opening price. Each Fixing Member examined its order book, which contained orders from clients’ brokerage accounts along with proprietary orders from that Silver Fix panel member’s own trading desk. Based on those orders, each of the Fixing Members would then declare how many bars of silver (around 1,000 troy ounces each) they would be willing to buy or sell at the opening price in 50 bar increments.
After each participant placed their orders, the transactions were netted against each other. If the amount of buying interest was equal to the amount of selling interest the Silver Fix was complete. Otherwise, the Chairman would adjust the price up or down and the process would be repeated until the total amount of silver bought was within 300 bars of the total amount sold. For example, if at the opening price the Fixing Members expressed interest in buying a total of 1000 bars of silver but only 300 bars were offered for sale, the Chairman would have progressively raised the price, inducing the sellers to offer more silver, until the difference between the buyers and sellers was 300 bars or less.
If for some reason this 300 bar threshold could not be reached, the Chairman could unilaterally fix the price of silver and the Fixing Members would divide the excess supply or demand pro-rata among themselves. For example, if there were one buyer and two sellers and the one buyer was willing to purchase 300 bars more than what was being offered, the buyer would have reduced its buying interest by 100 bars and each of the sellers would increase their selling interest by 100 bars, collectively absorbing the 300 bar difference.
Once this “price-setting ritual” was completed, the final price was published to the market. THE WALL STREET JOURNAL published a schematic of the Silver Fix in May 2014.
The importance of the Silver Fix cannot be overstated. Investors and silver market participants throughout the world used the result of the Silver Fix to price billions of dollars in physical silver and silver financial instruments, including COMEX silver futures contracts, each trading day. With the value of so many transactions linked to the Silver Fix, even small changes in the Silver Fix resulted in millions of dollars in gains or losses for silver market participants, including COMEX silver futures traders.
Despite the importance of the Silver Fix and its impact on the silver market as a whole, the entire process was conducted in secrecy. The daily conference calls were completely private. To Plaintiffs’ knowledge, no records of what was said on the daily conference calls have been published and there was no active regulatory oversight of the Silver Fix. No one was allowed to observe the auction process or to verify the price information submitted during the auction. This extreme level of secrecy created an environment ripe for manipulation.
Defendants had a strong financial incentive to use the secretive Silver Fix process to their advantage. Just as there was no regulatory oversight of the Silver Fix, there were no restrictions on the Fixing Member Defendants’ contemporaneous silver trading activity. Even though the Fixing Members were responsible for fixing the market price of physical silver for the entire world, they were allowed to trade both physical silver and silver financial instruments freely—before, during, and after the Silver Fix. With complete control over the price of silver, the Fixing Members and their co-conspirators had a strong financial incentive to establish positions in both physical silver and silver financial instruments prior to the public release of Silver Fix results that allowed them to reap large illegitimate profits, which, Plaintiffs allege, they in fact did.
Section V talks of the facts that the Silver Fix sets the price of physical silver and directly impacts prices for multiple silver investments.
This is what Ned Naylor-Leyland was saying years ago. The tail wags the dog. It is a solid read for anyone who is a newbie and knows not what the OTC markets are, or spot price, or what allocated and unallocated mean. It is written, basically, for a complete novice, to get an understanding of how silver is priced, and bought, by sophisticated investors, and regular folks.
Physical silver is traded “over-the-counter” (“OTC”) in agreements between private parties. Because there is no centralized OTC market, the price of silver in these transactions is determined by reference to the Silver Fix, which throughout the Class Period was set by the Fixing Members.
There are a variety of ways that physical silver is traded. Outside of the Silver Fix, which is itself an auction for 1000-ounce silver bars, investors buy and sell silver bars, coins, and “rounds,” coin sized pieces of silver with no face value, of various sizes. Regardless of the product purchased or its weight, the price of physical silver is always based on the “spot” or current market price of silver as set by the Silver Fix. That physical silver can be traded in various amounts makes the market accessible to not only large bullion banks, like the Defendants, but also to smaller investors, including Class Members. According to Scotiabank, “For investment diversification, precious metals bullion is an alternative asset to any investment strategy.”
Physical silver may be held directly by an investor and stored, for example, in a safe deposit box, or kept with a bullion bank, like Defendants Deutsche Bank, HSBC, Scotiabank or UBS, who acts as a custodian for the account holder. Silver stored with a bullion bank is kept in either an “allocated” or “unallocated” account. An allocated account gives the account holder an entitlement a specific, designated silver stock, which is segregated, and for which the account holder is provided a list of bar numbers, weights and assays of each bar. An unallocated account gives general entitlement to silver from the bank’s stock but specific bars or coins are not set aside or assigned to the account holder. In both cases, because the bank holds the silver, ownership is typically represented by a certificates, such as silver certificates sold by Scotiabank,which “may look and feel like paper, but they’re every bit as valuable as the precious metals they represent,” and convertible to silver bullion.
Silver Financial Instruments:
The Silver Fix directly impacts the prices of numerous financial instruments traded on exchanges, such as futures and options contracts, and in over-the-counter markets, such as swaps and forwards. In the words of THE ECONOMIST, “Commodity prices are not just for buyers and sellers of the physical stuff. They are also the basis of derivative markets—futures contracts, options, and combinations of these and other financial instruments—which can be far larger. A twitch in the ‘benchmark’ price can mean big shifts in the value of derivatives, and profits for the prescient.”
For instance, silver futures and options contracts are traded on the COMEX, short for Commodity Exchange, Inc., which is a division of the New York Mercantile Exchange. COMEX is a Designated Contract Market pursuant to Section 5 of the CEA, 7 U.S.C. § 7. COMEX specifies the terms of trading for silver futures and options contracts, including the trading units, price quotation, trading hours, trading months, minimum and maximum price fluctuations and margin requirements. Silver futures and options contracts were also traded on the NYSE LIFFE exchange and on the CBOT during the Class Period. These contracts function in exactly the same way as COMEX silver futures contracts and options.
(An Introduction to Trading CBOT Electronic Gold and Silver, CHICAGO BOARD OF TRADE, http://insigniafutures.com/Docs/CBOT_preciousMetals.pdf.)
Because a futures contract represents a bilateral agreement between parties, there are always two sides or positions for the related transaction. These positions are equivalent to that of buyer and seller. The person or entity that is buying the futures contract has what is called a “long” position. The one selling the contract has a “short” position.
Those in the long and short positions have different roles as the futures contract nears expiration, or the last trading day for that specific contract. Longs (as the buyers of the contract) are obligated to take delivery of the underlying commodity, in this case silver, while shorts (as the sellers) are required to make delivery of the amount of silver represented by their contracts.
This process of exchanging metals between buyer and seller is called “settlement.” All futures contracts are settled following their expiration, however, in most cases this does not result in an exchange of the physical commodity. Market participants have the option to offset or “financially settle” their futures positions. In financial settlement, instead of taking or making delivery of the physical commodity, investors in either the long or short position can offset their obligations with contracts for an equal but opposite position. For example, as a purchaser of a silver futures contract who is long can settle their obligation to take delivery of physical silver by selling an equal and offsetting number of futures contracts.
The difference between the two contract prices, for example the difference between the price at which the initial contract was purchased and the price at which the later offsetting contract was sold, is the profit or loss on that transaction. Investors with long positions, as buyers of the underlying commodity, generally benefit as the price of the commodity rises since they are able to sell an offsetting short contract at a higher price. Those with short positions, as sellers of the underlying commodity, generally benefit as the price of the commodity decreases since they are able to buy an offsetting long contract at a lower price.
Similarly, there are two types of options on exchange traded silver futures contracts, commonly known as “calls” and “puts.” A call option gives the holder the right, but not the obligation, to buy a silver futures contract at a specified price, known as the “strike price,” prior to some date in the future, at which point the option to purchase that contract “expires.” Conversely, a put option gives the holder the right, but not the obligation, to sell a silver futures contract at the strike price prior to the expiration date.
Plaintiffs confirmed the relationship between COMEX silver futures contracts and the Silver Fixing shown in Figure 1 by using a regression analysis. A regression analysis is a statistical tool that is used to evaluate the relationship between two variables. Comparing the daily closing prices of front month COMEX silver futures, i.e., the contract closest to expiration, to the results of that day’s Silver Fix, showed a statistically significant relationship between the price of COMEX silver futures contracts and the results of the Silver Fix. The regression analysis produced an R2 value of .9985, indicating that 99.85% of the variation in the price of COMEX silver futures contracts over the 10 year period displayed in Figure 1 was explained by the results of the Silver Fix. [figure 1 omitted]
Additionally, as the result of a Freedom of Information Act (“FOIA”) request made to the CFTC, Class Counsel received information demonstrating that commercial silver traders use the prices of COMEX silver futures contracts to calculate the spot market price of silver, which is listed on Bloomberg under the ticker symbol “XAG:”
January 30, 2009:
Trader 1: need to know which comex futures we will use today to calculate spots for XAU XAG XPT XPD
Trader 2: well gold comex went out today at 928.4
Trader 2: silver went out at 12.565
Defendants, as traders of both physical silver and silver financial instruments, silver market makers, and Fixing Members, understood the relationship between the price of silver financial instruments, like COMEX silver futures contracts, and the Silver Fix and knew that a manipulation of the Silver Fix would impact both the price of silver and the prices of other silver financial instruments.
Various financial instruments, the prices of which were impacted by the Silver Fix, also traded in over-the-counter markets during the Class Period. These financial instruments include commodity swaps and forwards. “A commodity swap is a cash-settled agreement in which two parties agree to a series of cash flows based on an agreed (notional) quantity of a commodity. One party typically pays a fixed price for the notional quantity and the other a floating price. The major distinction between a forward and a swap is that a forward is an agreement on one exchange, while a swap is an agreement on a series of exchanges.” Silver serves as an underlying commodity in such agreements. International Swaps and Derivatives Association (“ISDA”), the standard setting body for the OTC derivatives industry specifically defined “SILVER-FIX” as the price set by the Silver Fix. Upon the announcement that the Silver Fix was ending, ISDA announced that its silver benchmark also would be changing for the fix. Silver commodity swaps are now tied to the LBMA London Silver Price.41 An outright forward is an agreement between parties to buy or sell a certain quantity of a commodity at a specified price on a future date. Forwards are identical to COMEX silver futures contracts, except that they allow the parties to determine the amount of silver to be purchased or sold and the settlement date.”
Section VI discusses just HOW the illegal scheme worked, and HOW the defendants rigged price to screw over everyone else.
Who said silver is not manipulated?
Trader Dan, is that you? Maybe you want to weigh in and refute these allegations which we all suspected, and now KNOW, beyond dispute!
Anyhow, here is how the scheme worked:
“The private nature of the Silver Fix creates an environment that is highly susceptible to manipulation and collusion. First, the Silver Fix is a direct exchange of intended or future pricing information among horizontal competitors. Defendants, as some of the world’s largest banks, compete across a wide range of financial service markets, including the market for silver and silver financial instruments. Defendants compete against each other both for customers and in their proprietary trading of silver. Defendants’ private communications during the Silver Fix provided the opportunity to signal their pricing desires to their competitors in real time, creating an environment that is highly susceptible to manipulation.
Second, this exchange of pricing information occurs among a very small group of competitors, i.e., Defendants Deutsche Bank, HSBC, and Bank of Nova Scotia, each of which has a large market share in the market for silver and silver financial instruments. In contrast to other benchmarks, which are based on data from the broader market, the Silver Fixing entrusts the global price of silver to a small group of competitors, making it easy for them to influence prices.
Third, the Silver Fixing occurs at very high frequency, once each day at noon London time. The frequency of this meeting gives the Fixing Members and their co-conspirators an informational advantage over uninformed market participants on at least every day the Fix occurs. In this situation, collusion becomes a rational strategy for increasing profits at the expense of uninformed market participants that do not have knowledge of the pricing information exchanged during the Silver Fixing or an opportunity to participate in fixing price of silver.
Fourth, the Silver Fixing is private. The daily conference call between Fixing Members takes place on a secure line and is completely secret. There are no outside observers, and to Plaintiffs’ knowledge no recordings of the Silver Fixing have ever been released. Additionally, no regulatory body oversees the auction process or verifies the data submitted by the Fixing Members during the Silver Fixing. In truth, no one except for the Silver Fixing Members knows exactly what occurs on the conference call. As a result of this secretive structure, the Fixing Members have access to non-public information about changes in the price of silver that is unavailable to the rest of the silver market.
Lastly, the Defendants have a direct financial interest in the outcome of the Silver Fixing. Defendants are all traders of silver and silver financial instruments. This creates a financial incentive for Defendants to manipulate the Silver Fixing in a particular direction in order to financially benefit their proprietary trading positions.
These features, including the (i) high strategic importance of the information exchanged during the Silver Fix; (ii) real time data rather than historical nature of that data; (iii) the fact that the Silver Fix involves a private rather than public exchange of information; (iv) the use of individual transaction data (bids, asks, volumes) rather than aggregate market data; (v) the very high frequency exchanges (once or twice a day); (vi) the direct conflicts of interest between the Fixing Members and the rest of the market, which relies on the Silver Fix ; and (vii) a long history of these exchanges throughout many years , are all red flags indicative of collusion. See, e.g., 2000 U.S. Department of Justice and Federal Trade Commission Guidelines for Collaborations Among Competitors (2000); EC Guidelines (2011); Central and South American Guidelines (2013).
With respect to the silver market, all of the following red flags also apply: (i) a very small number of parties involved with significant market power; (ii) interlocking directorates creating additional conflicts of interest; (iii) lack of market transparency in OTC trading enhancing the value of anticompetitive exchanging information; (iv) the ability to reduce market complexity and unpredictability through anticompetitive information exchanges; (v) multimarket contact among submitters enhancing the stability of collusion; (vi) barriers to entry enhancing market power and the stability of collusion; (vii) low benefits to cheating on a collusive agreement enhancing the stability of collusion; and (viii) repeated similar behavior found in many similar benchmark settings increasing the likelihood that collusion may also be occurring.
The veneer of competition projected by the Silver Fix auction allowed Defendants to operate without detection. In addition to purportedly being a competitive process, no public records of the auctions were kept other than the results of the Fix, meaning that Defendants’ representations that the Silver Fixing was a competitive process played an outsized role in the success of the conspiracy.
A. Defendants Abused their Positions As Silver Fix Panel Members By Manipulating the Silver Fix to Levels That Did Not Reflect the Legitimate Supply and Demand for Silver
The Fixing Members, who were responsible for establishing the spot price of silver worldwide, had a duty to conduct the Silver Fix in such a way that the resulting price of silver reflected legitimate supply and demand fundamentals. Instead, during the Class Period, the Fixing Members breached their duties and responsibilities as Silver Fix panel members by, inter alia, agreeing to submit false pricing information not reflective of legitimate supply and demand fundamentals during the Silver Fix to manipulate the price of silver and silver financial instruments to artificial levels that benefitted their trading positions.
B. Defendants Used Their Advance Knowledge of the Silver Fixing Results to Establish Positions in Silver Financial Instruments During the Silver Fix Before the Results Were Released to the Public
Defendants unlawfully used their advance, inside knowledge of the Silver Fix to establish positions in the silver market, including positions in silver futures and options, which would increase in value once the results of the Silver Fix were released to the public.
In a scheme akin to front running, the Fixing Members, with complete and unaudited control over the results of the Silver Fix, colluded with each other about where to fix the price of silver, and then either directly or through contact with their trading desks, establish positions in the silver market that would financially benefit from where they knew the price of silver was going to be fixed following the public release of the Silver Fix to the general market.
For example, if Defendants decided that the Silver Fix price was going to be higher than currently reflected in the price of COMEX silver futures contracts, Defendants would establish long COMEX silver futures positions that would increase in value once the Silver Fixing results were released to the public and the price of silver increased.
Defendants are among the most active “market makers,” or dealers that both buy and sell silver on a regular and continuous basis at a publicly quoted price, in the spot market for physical silver. Figure 2 displays the activity of the top 65 market markers in the silver spot market, and is based on more than 17 million public spot market quotes, between January 1, 2000, and December 31, 2013. The left vertical axis indicates the name of each market participant, while the white areas demonstrate times when that institution was actively engaged in quoting silver prices in the spot market. Figure 2 shows that the Defendants HSBC, Bank of Nova Scotia (identified as “BNS”), Deutsche Bank (identified as “DB”), and UBS, are among the top 20 silver spot market participants.
In the same way that Defendants could take advantage of their advance knowledge of the Silver Fix results by establishing positions in silver financial instruments that would increase in value once the Silver Fix was released to the public, they could also use this information to their advantage in the silver spot market. As market makers, the Defendants buy and sell silver hoping to make a profit on the difference between the two prices, known as the “bid-ask spread.” Knowing the direction of the Silver Fix in advance benefits Defendants by allowing them to adjust their price quotations, for example, buying silver at lower price and selling at a higher price, generating larger profits from their spot market transactions.
Advance knowledge of the Silver Fix also allows the Defendants to adjust their spot market quotes to influence the market price of silver, moving it in a specific direction to financially benefit their silver positions. In one example of this kind of manipulative conduct, identified by Plaintiffs’ experts, Defendants Deutsche and UBS systematically quoted silver prices significantly below the quotes of other market participants leading up to and during the Silver Fix, influencing the overall price trend in the spot silver market.
This manipulative conduct rendered Defendants’ positions in both silver and silver financial instruments, including those initiated and liquidated in or around the Silver Fix, an illegitimate part of the supply-demand equation for the prices of all silver and silver financial instruments, including COMEX silver futures contracts.”
I am leaving out a discussion of the section that talks about the “Government Enforcers Have Been Investigating the Silver Fix,” because I believe that to be an oxymoron.
The CFTC is corrupt, the lawyers at the enforcement agencies churn through a revolving door whereby there is NO incentive for anyone to actual follow the law and do their job to root out and stop corruption.
The only incentive scheme that makes sense is the private lawsuit, like this one, where the successful plaintiffs’ lawyers will make a fortune! Hence, only the private civil actions stand any chance for success. Sad reality, but that is the truth.
I will include this part, though, as it references something we all know, and which Mr. TF has been telling us since the watchtower days:
“In the excerpt from a conversation between two commercial silver traders below, the traders discuss how silver is “dangerous to trade” because liquidity in the market decreases substantially whenever the price decreases:
November 8, 2004:
Trader: I think for like silver and platinum and palladium you can get into them and then never be able to get out
Trader: gold usually has volume though Trader: like silver especially
Trader: b/c it can be really liquid on the way up, and then not at all on the way
Trader: so dangerous to trade
Trader: silver trader here says silver has been making millionaires out of billionaires since 1971
These electronic communications are consistent with the proposition that the persistent downward manipulation of silver prices during the Class Period directly and proximately caused injury to class members by, inter alia, impacting the price at which they initiated and liquidated their positions in the market, as Defendants’ understood that it was easier to manipulate the price of silver and silver financial instruments when the price decreased and the market was illiquid.
Then, it all went POOF!
VIII. THE DEMISE OF THE SILVER FIX
"After 117 years, the Silver Fix officially ended on August 14, 2014. A series of steps stemming largely from the global government investigations led to its demise.
A. Under Government Investigation, Deutsche Bank Put its Seat on the Silver Fixing Panel Up for Sale
In January 2014, Deutsche Bank abruptly announced that it was putting its seat on the panel up for sale, having “faced scrutiny from the German regulator, BaFin, over its participation in the London gold and silver benchmark setting process over suspicions that the process may have been subject to manipulation by the key players.” 57
(New silver price is ‘improvement’ on fix, THE FINANCIAL TIMES (July 16, 2014), http://www.ft.com/intl/cms/s/0/4053ff04-0ccb-11e4-90fa-00144feabdc0.html#axzz38yxp1nAQ.
Deutsche puts gold price fix role on sale, THE FINANCIAL TIMES (Jan. 17, 2014), http://www.ft.com/intl/cms/s/0/02f5a19c-7f97-11e3-b6a7-00144feabdc0.html?siteedition=uk#axzz3I2RldBIl.
Deutsche puts gold price fix role on sale, THE FINANCIAL TIMES (Jan. 17, 2014), http://www.ft.com/intl/cms/s/0/02f5a19c-7f97-11e3-b6a7-00144feabdc0.html?siteedition=uk#axzz3I2RldBIl.)
Deutsche “said it would continue to participate in price setting until it finds a buyer, but would resign its seat if it fails to do so.” At the time, however, it seemed resignation would be unlikely as the sale was said to present “an opportunity for a new bank to join the elite club of price setters in one of the world’s largest precious metals trading hubs.”
And “Deutsche said it had already begun talks with other banks to sell its role.”
B. Deutsche Was Unable to Sell What Should Have Been a Valuable Seat
Deutsche Bank did try to sell its seat on the panel, but, tellingly, there were no takers. “A source close to the German bank said it had tried to sell its positions but had been ‘unable to agree terms with any prospective buyers.’”
C. Deutsche Resigned Unable to Sell its Seat
Having found no buyer, Deutsche announced its resignation.63 The Silver Fix thus “was put on the fast track to extinction . . . leaving just two banks still taking part— Bank of Nova Scotia and HSBC Holdings PLC.” THE FINANCIAL TIMES reported, “Deutsche’s withdrawal from the three-seat silver fixing . . . will probably present a problem,” quoting a precious metals banker as stating, “I don’t see how it can function with only two members so they are going to have to work something out.”
D. The Full Panel Announced it Would Be Disbanding
In the wake of this and “on the heels of increased scrutiny by European and US regulators into precious metals price-setting following the Libor scandal and probe into possible forex market abuse,” Defendants announced that they would disband their combination as of August 14, 2014.68 “The century-old method of setting silver prices—daily chats among a small coterie of banks—[wa]s being scrapped for something more modern.”
As reported by THE FINANCIAL TIMES:
The current daily fix, which has been an integral part of London’s $1.6tn-a-year silver market for decades, and controlled by a handful of banks, has lost its luster in recent years due to concerns about transparency and vulnerability to manipulation. It is shutting down because Deutsche Bank failed to find a buyer for its seat, leaving only two other members.
In May 2014, three months prior to actually closing operations, the Silver Fixing panel members issued the following press release:
The London Silver Market Fixing Limited
Incorporated in England and Wales With Registered Number 3685039; Registered Office: One Silk Street, London EC2Y 8HQ
LONDON, UNITED KINGDOM--(Marketwired - May 14, 2014) - The London Silver Market Fixing Limited (the ‘Company’) announces that it will cease to administer the London Silver Fixing with effect from close of business on 14 August 2014. Until then, Deutsche Bank AG, HSBC Bank USA N.A. and The Bank of Nova Scotia will remain members of the Company and the Company will administer the London Silver Fixing and continue to liaise with the FCA and other stakeholders.
The period to 14 August 2014 will provide an opportunity for market-led adjustment with consultation between clients and market participants.
The London Bullion Market Association has expressed its willingness to assist with discussions among market participants with a view to exploring whether the market wishes to develop an alternative to the London Silver Fixing.
1. What will happen after 14 August 2014? Will the Silver Fixing cease to exist?
With effect from the close of business on 14 August 2014, the Company will cease to administer a Silver Fixing, and a daily Silver Fixing Price will no longer be published by the Company.
2. What will happen in the period up to that date?
The Company intends to continue to administer the daily Silver Fixing and publish Silver Fixing Prices throughout that period.
3. Why a three month notice period?
Although members of the Company may resign on seven clear days' notice, the members have confirmed that they stand ready to continue the Company's operations until (and including) 14 August 2014.
4. What happens after 14 August 2014 for market participants with contracts referencing the Silver Fix?
The Company is not in a position to comment on such matters, but market participants can speak to their contractual counterparties.
5. What does this mean for the gold, and platinum and palladium fixing companies?
This decision relates only to the London Silver Fixing administered by the Company. The Company is not in a position to comment on other fixings.
Once Defendants “decided to pull the plug on the benchmark, they and the London Bullion Market Association “set about finding a replacement.”
According to reports, the London Silver Fix was in for a “historic makeover.”
Of course, there had to be a replacement, so naturally, there was. Section IX talks of the new silver fix.
IX. THE LONDON SILVER PRICE HAS REPLACED THE SILVER FIX AS THE GLOBAL BENCHMARK PRICE FOR SILVER
"A. Fixing the Fix Between the Announcement and the Closing
“The fix is off.” But it has a replacement: the “LBMA Silver Price,” also known as the “London Silver Price.” Leading U.S. silver miner Coeur Mining said that the end of the Silver Fix and the launch of its replacement was “somewhat surprising, the timing I guess, and the abrupt transition, but it needed to happen.”
The LBMA Silver Price (“LSP”) is administered by the London Bullion Market Association (“LBMA”), the main standard setting organization for silver and gold bullion, in conjunction with the CME Group, the operator of the COMEX, and Thomson Reuters, the media company that reports other financial benchmarks, such as LIBOR. CME and Thomson Reuters were chosen by the LBMA after a selection process, which included bids from numerous financial companies to run the replacement for the Silver Fix, and which was the subject of some controversy.
The new process features electronic rather than telephonic trading, but retains similarities to the Silver Fix in that it is an auction among a group of industry panelists. Notably, two of three charter members of the LSP panel are Defendants HSBC and Scotiabank. The LSP and COMEX futures have neatly tracked each other since the LSP began in August.
The current members of the LBMA’s five LSP panel are: Scotiabank, HSBC JPMorgan, Mitsui, Bank of Toronto and UBS.76 The auction is operated by CME and administered by Thomson Reuters, but still takes place daily at 12:00 noon London time. According to the LBMA itself, “The earlier benchmarking process has been followed in order to minimize any possible disruptions and enable a seamless transition for the market.”
Despite the shift from telephones to computers, critics have complained that the process for selecting the new fixing as well as the fix itself are flawed, prompting some to say, “Meet the New Fix, Same as the Old Fix.”
1. The Search for a Replacement Started Almost as Soon as the Announcement That the Silver Fix Was Ending
The LBMA publicly spearheaded the effort to install a replacement for the Silver Fix.
On May 14, 2014, the same day that the London Silver Market Fixing Ltd. announced that the Silver Fix would no longer exist in ninety days, the LBMA announced that it would lead the charge to find a replacement. Ruth Crowell, LBMA CEO, stated, “As part of our role as the trade association for the London Bullion Market, the LBMA has launched a consultation in order to ensure the best way forward for a London silver daily price mechanism. The LBMA will work with market participants, regulators and potential administrators to ensure the London Silver Market continues to serve efficiently the needs of market users around the world. As part of the consultation process, the LBMA will be actively approaching market participants requesting feedback.”
Both HSBC and Scotiabank swiftly made public statements committing to creating an “alternative” to the Silver Fix (of which they would eventually take part). Upon the announcement, a “spokesperson for HSBC said the bank remains ‘committed to the silver market and, if the market wishes to develop an alternative to the London Silver Fixing, is willing to takepart in discussions with other market participants.’”
Scotiabank’s global head of foreign exchange and precious metals said in a statement that the Canadian bank “will work with market participants to find an alternative to the silver fix.’”
a. The LBMA
The LBMA describes itself as “an international trade association, representing the London market for gold and silver bullion which has a global client base.” The LBMA sets “refining standards, trading documentation and the development of good trading practices. The maintenance of the Good Delivery List, including the accreditation of new refiners and the regular retesting of listed refiners, is the most important core activity of the LBMA.” The London Good Delivery List “is regarded as the only globally accepted accreditation for the bullion market, ensuring that the wholesale bullion bars traded in the market meet standards and quality required by Good Delivery.”
The leadership of the LBMA continues to include Defendants Deutsche, Scotiabank, and HSBC, as well as other multinational banks that have come under investigation for conduct relating to other critical financial benchmarks and markets, including not only the Gold Fixing, but also Aluminum, Credit Default Swaps, Forex, ISDAfix, LIBOR, and Zinc. The Management Committee of the LBMA includes executives from Scotiabank and HSBC, among others. The LBMA’s Regulatory Affairs Committee includes executives from Deutsche, Scotiabank, and HSBC. There are thirteen LBMA Market Making Members, including Deutsche, Scotiabank, and HSBC. The others are Bank of America, Barclays, Citibank, Credit Suisse, Goldman Sachs, JPMorgan, Mitsui, Morgan Stanley, Societe Generale, and UBS.
2. After Search and Soliciting Bids, the LBMA Awarded the Replacement for the Fix to CME and Thomson Reuters
The LBMA held what it called a consultation, whereby various financial companies vied for the opportunity to run the replacement for the Silver Fix. The “consultation included silver producers, refiners and manufacturers. The Financial Conduct Authority and Bank of England attended,” but only as “observers.” The LBMA sought answers to questionnaires, eventually holding a “Seminar on 20th June which was open to LBMA members, ISDA members and other bullion market participants to assess presentations from possible solution providers for a London daily silver price mechanism.” The top seven proposals were presented at the seminar. Among the finalists who presented in addition to CME and Thomson Reuters, were Bloomberg, Intercontinental Exchange (“ICE”), The London Metal Exchange (“LME”), and Platts.
On July 11, 2014, after reaching what it called a “clear market consensus,” the LBMA announced that the CME Group and Thomson Reuters “won” the new fix.92 Ruth Crowell, the CEO of the LBMA that assumed office just as Deutsche was announcing its resignation in early 2014,93 commented:
I am delighted that there was a clear market consensus for the CME Group & Thomson Reuters joint proposal. The LBMA liaised throughout the consultation process with the FCA. The LBMA is grateful for all the support, comments and feedback it has received from all market participants. A particular thank you to ISDA, and the Silver Institute for all their constructive support of the LBMA during this consultation process. We will work in partnership with the CME Group, Thomson Reuters and price participants to implement the solution in time for testing in early August and go live on the 15th August.
The CME also issued a press release upon winning the bid:
LONDON, July 11, 2014 /PRNewswire/ -- CME Group, today released the following statement regarding the London Bullion Market Association's London Silver Price Market Consultation:
“We are honoured to have been appointed by the OTC silver market participants and the London Bullion Markets Association to provide an electronic solution that will transform the London OTC silver spot price,” said William Knottenbelt, Senior Managing Director, EMEA (Europe, Middle East, Africa) for CME Group. “CME Group's transparent, transaction-based OTC auction platform, combined with Thomson Reuters’ independent Benchmark Administration services will deliver a strong London footprint, a deep understanding of the silver markets, and a fully IOSCO-compliant, FCA-regulated solution to the London bullion marketplace. As an industry leader in precious metals price discovery, we understand how important the silver spot benchmark is to the physical metals industry, and we look forward to continuing to engage with key metals industry stakeholders to deliver our new solution on August 15th.”
Thomson Reuters too issued a press release on August 5, 2014:
The silver market is set for a historic makeover as Thomson Reuters and the CME Group are set to operate the new LBMA Silver Price from 15 August, as the current 117-year old process comes to an end.
The silver fix – which is used by producers, consumers and investors on a daily basis – is currently set every day at noon by three banks via a conference call, working out a price at which their customers are willing to buy and sell the metal. A City of London Institution, the silver fix is used to price for mining sales contracts and exchange-traded funds.
The London Bullion Market Association (LBMA) confirmed that the existing daily silver fix, will be replaced on August 15 by the new LBMA Silver Price with CME Group providing a price platform and methodology, with Thomson Reuters responsible for administration and governance.
The new method offers an auction-based, auditable electronic system that will match buying and selling orders to reach a benchmark for the price of silver. All of the auctions can be viewed live on Thomson Reuters flagship desktop, Eikon.
3. The LBMA Silver Price Launched on August 15, 2014
On August 15, 2014, the “replacement” of the Silver Fix began. Just prior, “[i]n a small boardroom at the LBMA’s London offices, a large plasma screen stared blankly,” reported THE WALL STREET JOURNAL. “‘Give it a few seconds,’ said Ruth Crowell, chief executive of the London Bullion Market Association, at 11:59 am U.K. time Friday. . . . The clock struck 12pm. After a few moments of inertia, the platform ticked into life and, after a brief auction, the first-ever electronic silver fix was generated: $19.86 per troy ounce.”
The LBMA announced:
On 15 August, CME Group and Thomson Reuters launched the new LBMA Silver Price, in partnership with the London Bullion Market Association (LBMA). CME Group provides the electronic auction platform on which the price is calculated and Thomson Reuters is responsible for administration and governance of the benchmark as well as distribution. The LBMA accredits the market participants.
In order to enable a seamless transition for the OTC silver market, the new process for the LBMA Silver Price maintains continuity with the previous global spot benchmark the London Silver Fix, that existed for 117 years. The fully electronic auction platform increases the transparency of the price-setting mechanism and allows for a wider number of banks, trading houses, refiners and producers to participate.
Ruth Crowell, CEO of the LBMA further commented:
I am delighted that the first LBMA Silver Price will be launched today. This is the culmination of an intense three month period of consultation, discussions and preparation. I would like to take the opportunity to thank all those who have been involved in the process. The LBMA has been overwhelmed with the support that it has received from its partners, CME Group and Thomson Reuters as well as LBMA members and other participants in the wider market.
THE WALL STREET JOURNAL reported of the launch: “With the unveiling of London’s shiny, new silver benchmark Friday, metal producers and traders are hoping to head off lingering concerns about the credibility of the market. But as the price-setting process undergoes the first major overhaul in more than a century, there are signs the revamped process isn’t quite ready.”
4. The LBMA Methodology
The LBMA describes the new system as follows:
The LBMA Silver Price is determined via an electronic auction based solution which is based on transactions and is auditable. Five price participants have been accredited to contribute to the LBMA Silver Price: HSBC Bank USA NA, JPMorgan Chase Bank, Mitsui & Co Precious Metals Inc., The Bank of Nova Scotia - ScotiaMocatta and UBS. The LBMA Silver Price is set in a series of auction rounds with each round lasting 30 seconds. The auction begins at 12:00 and participants input their buy volume and sell volume orders in lakhs (100,000 ounces) or quarter lakhs (25,000 ounces). The initial price at the start of the process is likely to be close to the spot price. In the first round the system algorithm will attempt to match buy and sell orders within the permitted tolerance level of 300,000 ounces (or 3 lakhs). If the buy and sell orders are out of tolerance, the auction price will change and the auction will restart. The process will continue until the buy and sell volumes are in tolerance and the equilibrium price is set.
5. Concerns over the “New Fix”
Concerns have been expressed that the process for choosing the replacement were less than transparent. To start, some have questioned the independence of the Silver Fix and the LBMA, given that the LBMA announced it would be taking over the search for a replacement on the same day that the Silver Fix announced it would be shutting down. In addition, it was not until August 15, 2014 that the members of the new panel were announced. Two of three original Silver Fixing members, Defendants HSBC and Scotiabank, were both included in the LBMA Silver Price. Both HSBC and Scotiabank, as Market Making members of the LBMA, sit on the LBMA executive and regulatory committees responsible for overseeing the new silver fixing.
In between, concerns have been expressed as to the transparency of the selection process, potential conflicts of interest, and that though there is now electronic trading, the new scheme presents only a modest change, and, moreover, is technically problematic. It is reported that some have “likened the user interface of the new CME/Thomson Reuters silver trading platform to something from a command prompt MS-DOS user interface from the 1970s.”
One significant concern is “independent review” of the proposals by CME/Reuters, Bloomberg, the LME, Platts, and others. The independent review was conducted by Jonathan Spall, who worked in precious metals at Barclays until earlier this year.
Barclays was fined $44 million by the FCA for gold market manipulation in connection with the Fix.106 Mr. Spall, after conducting his independent review of the new silver fix, was named the head of the London Platinum and Palladium Fix.
It appears that THE FINANCIAL TIMES was indeed accurate in reporting that while losing the “unfortunate name,” in favor of a bland one, and the “private teleconference,” in favor of electronic trading, “anyone thinking there has been a complete change in the way the daily snapshot of the silver market is conducted would be mistaken.”
While the LSP was introduced as more transparent than the Fix, as it allowed the public to view the fixings in real-time, as of January 12, 2015, that has changed. Live viewing is only available to those who pay to play. This is in sharp contrast to how the LSP was portrayed at first:
“This new system combines a robust and reliable pricing mechanism with strong governance, as well as transparency for all of its users,” said Kris Carlson, Global Head of Metals, Thomson Reuters. . . . “We are combining continuity with innovation, ensuring not only that everyone continues to receive a reliable daily silver price through this transition to the new system, but also that they enjoy a greater understanding of how this process works by watching the auction live on their desktops, including via Thomson Reuters Eikon.”
LBMA Chief Executive, Ruth Crowell said, “I am pleased that we have been able to deliver an on-time solution which meets the requirements of the London Silver Market. The new mechanism allows more direct participation and the automated auction feed ensures that the same real-time information is available to all participants and market users via numerous data vendors.”
Less than five months later, however, and now that the dust has settled, that real-time information is available only to those insiders who pay for it. The rest of the public is subject to a 15 minute delay. The LBMA, CME, and Thomson Reuters state: “[a]s of Monday 12 January 2015, the existing real-time LBMA Silver Price data which is free of fees becomes fee liable. A subset of the full content continues to be available on a free basis with a 15 minute delay.”
Moreover, those “wishing to use or redistribute the LBMA Silver Price must enter into a licensing agreement.”
So, like the old fix, there is nothing really transparent about the new fix.
Section X discusses the technical expert analysis which reveals systematic suppression of spot market silver prices.
This is where Professor Rosa Abrantes-Metx of the NYU Stern School of Business weighs in:
“Plaintiffs have retained Professor Rosa Abrantes-Metz of the New York University Stern School of Business, perhaps the most prominent academic in the world on benchmark manipulation. Her work was instrumental in uncovering the manipulation of LIBOR which has since lead to a global investigation of interest rate benchmarks and massive fines related to this manipulative conduct. Professor Abrantes-Metz analyzed the Silver Fix and its impact on prices in the silver market and studied the price movements around the start of the Silver Fixing at 12:00 P.M. London time, looking for outliers as well as signs of systematic price suppression.”
I’m not going to dig into this, as I am not at all technical enough to hope to convey any semblance of a summary. You can read it starting at paragraph 109, which analysis continues through paragraph 173 of the complaint. There are many charts showing the manipulation scheme clearly.
There is also another expert, Professor Andrew Caminschi, a researcher at the University of Western Australia. His analysis is set out at paragraphs 174 through 177.
The conclusion is that “Plaintiffs were Injured by Transacting at Artificial Prices Proximately Caused by Defendants’ Manipulative Conduct.”
“Throughout the Class Period, Plaintiffs sold both physical silver and silver financial instruments, including COMEX silver futures contracts, the prices of which were directly impacted by the Silver Fixing.
As described above, Defendants and their co-conspirators artificially suppressed the price of silver throughout the Class Period. As a result, Plaintiffs transacted at artificially lower prices each time they sold physical silver or silver financial instruments, and received less than they otherwise would have in a competitive, unmanipulated market.
As a direct result of Defendants’ and their co-conspirators’ conduct, Plaintiffs were injured and suffered harm in the sales they conducted on days where the price of silver was artificially lower because of Defendants’ manipulative conduct, including but not limited to, the days and transactions set out in Appendix C.
For the reasons described above, the impact of the Defendants’ and their co-conspirators’ manipulative conduct persisted well beyond the end of the Silver Fixing, causing harm to Plaintiffs beyond the days set out in Appendix C.
Defendants’ persistent suppression of silver prices also directly and proximately caused injury to Class Members who initiated long positions in silver and silver financial instruments at artificial prices, and held those positions through the Class Period.
For example, Plaintiff Ceru, purchased physical silver at artificial prices during the Class Period and held that physical silver through Defendants’ persistent suppression of silver prices. As a result, Ceru suffered legal injury as a direct and proximate result of Defendants’ manipulative conduct which artificially reduced the value of silver purchased during the Class Period.”
The claims for relief (the legal theories by which the Plaintiffs seek to hold defendants liable) are set out at pages 121-126.
Motion to Dismiss is Filed On March 27, 2015
The defendants moved to dismiss the first amended complaint, asserting that the complaint failed to state a claim under Rule 12(b)(6). In a sixty-two page memorandum of law, the defendants’ lawyers assert why the lawsuit has no merit.
Their arguments are summarized here:
“Defendants are alleged to have engaged in an on-again, off-again 15-year conspiracy to suppress the price of silver. (Compl. ¶J 108, 240.) Plaintiffs' theory relies on the assumption that
Defendants held large net short silver positions - and thus profited from a scheme to suppress
silver prices - for the entire Class Period. 3 No facts alleged in the Complaint support that
irrational assumption, which requires the Court to conclude that four financial institutions, each
subject to stringent risk-based capital controls, held massive unhedged short positions continuously for 15 years, during a period in which the price of silver concededly rose steadily and significantly.
The Complaint suffers from further deficiencies. It asserts that Plaintiffs suffered
cognizable injury by "transact[ing] at artificially lower prices each time they sold physical silver or silver financial instruments." (Compl. ig 237.) But the Complaint is silent as to when Plaintiffs acquired their positions, the prices at which they bought or sold their positions, and the prices of
any offsetting positions that they may have taken.4 More pointedly, the Complaint identifies
neither a single transaction between a Plaintiff and a Defendant nor even a single transaction in
which any Defendant participated - much less "reap[ed] large illegitimate profits." (Compl.
Instead of facts or a coherent theory of injury, the Complaint impermissibly relies on self-commissioned "studies" of self-styled "experts." (Compl. ¶118-13.) Importantly, the Complaint
omits the methodologies underlying these "studies" even though they are its primary basis.
Plaintiffs have tendered a complaint on what amounts to opinion testimony of experts who
themselves render conclusions based on undisclosed methodologies.
Even if the fruits of commissioned studies were accepted as a valid basis for pleading (they should not be), the studies do nothing more than parrot the unsupportable positions on which the Complaint relies for its theories of harm. Thus, the "experts" purport to have concluded that "price spikes" (Compl. at 65, 192; 85, lr 172) occurred most often around the time of the Silver Fix, proceed to label those spikes "anomalous" and, therefore, deem them suggestive of wrongful conduct. The Complaint's reliance on the studies only highlights the Complaint's key deficiencies.
For example, although the Complaint purports to provide a list of dates "on which Defendants' conduct resulted in an artificial suppression of prices" (see Compl. App. C), it is silent as to whether the "conspiracy" alleged was "on" for every trading day, or activated only on the "anomalous" days identified in the Complaint. If the former, one strains to see the relevance of the "expert" studies.
If the latter, the Complaint fails to allege any facts suggesting (i) why Defendants chose to conspire only on certain days; (ii) how the "on" and "off' days were communicated and/or enforced; and (iii) how pricing on "off' days was a function of anything other than benign market forces.
The Complaint should be dismissed for several independent reasons:
First, the Complaint does not allege facts sufficient to support even a plausible inference of
unlawful agreement among Defendants to suppress silver prices. It does not refer to a single
communication among Defendants, much less a communication in which two or more Defendants discussed coordinated activity. Nor does the Complaint offer a plausible motive from which an unlawful agreement could be inferred. It relies instead on the tacit assumption that Defendants stood to benefit from fifteen unbroken years of price suppression because they were "short" throughout the Class Period, but it alleges no facts to support this proposition. That is not enough to state a Sherman Act claim, or to give license to Plaintiffs to spend tens of millions of discovery dollars in search of a fact that could support their pre-paid theory.
Second, Plaintiffs lack standing to assert antitrust claims because no Plaintiff alleges injury
of the kind that the antitrust laws were designed to prevent. Although the Complaint asserts that
Plaintiffs suffered injury by "transact[ing] at artificially lower prices each time they sold physical
silver or silver financial instruments" (Compl. 11237), there is no factual support for any of the
transactions underlying their claims. Moreover, Plaintiffs are, at most, indirect purchasers who cannot assert claims for damages under the Sherman Act.
Third, the Complaint does not allege valid Commodity Exchange Act (CEA) claims because it does not allege that silver prices were artificial nor allege with the particularity required by Fed. R. Civ. P. 9(b), that Defendants had the wherewithal or intent to cause artificial pricing.
The Complaint does not plead facts giving rise to an inference that Defendants specifically intended to cause artificial pricing, instead relying on generalized pleading of motive (Defendants purported incentive to "reap large. . . profits" in their trading positions). (Compl. II 108.) Such a
"motive" theory is legally insufficient.
Even if the Complaint had pleaded the elements of a manipulation claim, Plaintiffs would still lack standing to assert claims under the CEA because the Complaint does not adequately allege that they suffered any actual damages as a result of the asserted CEA violations.”
Plaintiffs Filed a Second Amended Complaint on April 17, 2015. The Motion to Dismiss was therefore Moot.
In a detailed summary entitled “Nature of the Action,” the Second Amended Complaint lays out a comprehensive discussion of the price fixing scheme, and the harm it caused.
NATURE OF THE ACTION
"Throughout the Class Period three of the world’s largest silver bullion banks –
Deutsche Bank, HSBC, and The Bank of Nova Scotia (collectively the “Fixing Members”) –
dictated the price of silver during a daily, secret, and unregulated meeting known as the London
Silver Fixing (the “Silver Fix”).
The Silver Fix was supposed to serve a “price discovery” function, determining
the global benchmark price per ounce of silver (the “Fix price”) based on supply and demand
fundamentals resulting from a competitive silver auction among the Fixing Members. Instead
the Silver Fix, which was closed to outside observers and free from any regulatory oversight,
was used to both conceal and facilitate the Defendants’ agreement to manipulate and fix silver
prices and the prices of silver financial instruments during the Class Period.
The Fix price directly impacted the roughly $30 billion in silver and silver
financial instruments traded each year. “The guiding principal behind the Fixing is that all
business, whether for large or small amounts, is conducted solely on the basis of a single published Fixing price.”1 During the Class Period, the silver and silver financial instruments that
Plaintiffs and the Class transacted were priced, benchmarked, and/or settled to the Fix price.
Thus the Fixing Members, as masters of the Silver Fix, exercised complete
control over the prices of silver and silver financial instruments during the Class Period. This
unique position of control, unrivaled by any other market participant, allowed the Fixing
Members and their co-conspirators, such as Defendant UBS AG, to use the daily Silver Fix as a
manipulative device, causing a dysfunction in the normal competitive process of silver pricing2
that fixed the prices of silver and silver financial instruments at artificial, anticompetitive levels
for the Defendants’ financial benefit.
The dysfunction in market forces that Defendants’ manipulative conduct created
manifests itself as a statistically significant drop, on average more than 15 basis points, in both
the spot market price of silver and prices of silver futures contracts beginning minutes before the
start of the daily Silver Fix.
This large decline in silver prices, which does not happen at any other time during the trading day, exhibits a particular market signature that distinguishes it from competitive trading activity because it (a) always occurs around the start of the Silver Fix; (b) has an extremely high frequency; (c) is abnormally large in size; (d) ignores whether the price of silver is increasing or decreasing; and (e) correctly predicts where the Fix price will be before it is ever released to the public.
Furthermore, the drop in silver prices observed around the Silver Fix is
accompanied by a statistically significant spike in both trading volume and price volatility that
reaches its peak minutes before the Silver Fix is over and the Fix price is released to the market.
As the only market participants with advance knowledge of the Fix price, the timing of the
Defendants’ trading directly contradicts well-established economic principles that, absent
collusion, market prices and thus trade volume and volatility, should react upon the release of
new information, not in advance.
The timing of this volume spike and coincident drop in price is also significant,
because of when it occurs during the trading day. Unlike other precious metals fixings, which
take place when trading volume is near its peak, the Silver Fix occurs at noon London time,
before the futures markets in New York are fully open and the vast majority of silver futures
contracts are traded. As a result, the abnormally large surge in volume and drop in futures prices
cannot be explained by normal futures market activity.
Nor are these abnormal volume and pricing dynamics explained by market
activity occurring outside of the Silver Fix. Tellingly, the signature drop in price and coincident
spike in both volume and volatility follow the Silver Fix as the time of the daily conference call
changes with the start and end of British Summer Time.3 Days with no Silver Fix, for example,
due to a British banking holiday, exhibit the opposite effect: the price of silver increases at the
Silver Fix’s normal time.
Thus, it is trading during the fix that causes the observed break from previous and
subsequent market behavior. To demonstrate this, Plaintiffs have further connected the observed
price drop directly to the Defendants’ activity in the spot silver market. By analyzing millions of bid and ask price quotes, there is clear evidence that Defendants’ market activity initiates the
downward price trend observed around the start of the Silver Fix.4 The impact of this systematic
price suppression extends beyond the few minutes surrounding the Silver Fix, where large price
drops are frequently observed, and extends into other days that do not exhibit such obvious price
Defendants’ used this manufactured dysfunction in silver pricing mechanics to
generate illegitimate trading profits by (a) taking positions in the silver market based on their
advance knowledge of the Fix price; (b) manipulating their clients’ order flow to financially
benefit their silver market positions; and (c) maintaining an anticompetitive fixed “spread,” or
difference, between the bid and ask prices at which they offered to buy and sell silver in the spot
While the complete details of Defendants’ trading activity are unavailable to
Plaintiffs at this time, a November 12, 2014 report by the Swiss Financial Market Supervisory
Authority (“FINMA”)5 identified several strategies which, according to FINMA Director Mark
Branson, UBS used in “clear attempts to manipulate fixes in the precious metals markets.”6 This
report describes how Defendants used the Silver Fix to create and exploit an advantage over the rest of the market by inter alia “jamming” clients, triggering stop loss orders7 that forced clients
to sell silver to the Defendants at artificially lower prices; sharing non-public client order
information with third-parties; and front running client “silver fix orders,” i.e., orders placed
before the Silver Fix to trade at the then unknown Fix price.
Significantly, these are the same techniques UBS and HSBC employed to
manipulate the foreign exchange (“FX”) markets which are well-documented in their settlements
with the U.S. Commodity Futures Trading Commission (“CFTC”) and U.K. Financial Conduct
Authority (“FCA”). The overlap in manipulative strategy is not surprising. Both UBS and
HSBC traded precious metals during the Class Period from their FX desks. Their manipulative
conduct, which worked so well in the FX markets was duplicated in the silver market.
An informational advantage, whether in the form of an advance knowledge of a
competitors’ order flow, the trigger points for competitors’ clients’ stop-loss orders, or the results
of a major global benchmark like the Silver Fix, is invaluable. Plaintiffs’ economic analysis
determined that the advance knowledge of the Fix price available only to the Fixing Members
and their co-conspirators created a real-world advantage of up to 40 basis points in the spot
market and up to 25 basis points in the futures market for every trade Defendants placed during
the Class Period, generating risk-free returns at the expense of Class members who were forced Increased regulatory scrutiny of the Silver Fix led Deutsche Bank to abandon its
position as a Fixing Member,8 rather than stand by the integrity of the benchmark, causing the end of the Silver Fix on August 14, 2014.
The Silver Fix has since been replaced by the “London Silver Price,” which despite losing the “unfortunate name,” in favor of a bland one, and the “private teleconference,” in favor of electronic trading, may not be any better. THE FINANCIAL TIMES reports that “anyone thinking there has been a complete change in the way the daily snapshot of the silver market is conducted would be mistaken. The new benchmark . . . keeps some of the main features of the silver fixing, in particular the auction-style process used to calculate the reference price.” Two of the other main features that continue are Defendants HSBC and Bank of Nova Scotia remaining on the London Silver Price panel, as does UBS and other recidivist banking corporations.
New investigations into the Silver Fix continue. In February 2015, both the U.S.
Department of Justice and CFTC announced that they began investigating at least 10 banks,
including all of the Defendants, for rigging the precious-metals markets by manipulating, among
others, the Silver Fix.
Given these ongoing government investigations into the Silver Fix and the
significant amount of economic evidence presented in this Complaint, Plaintiffs believe that
further evidentiary support for their claims, as alleged herein, will be revealed after a reasonable
opportunity for discovery.”
The Second Amended Complaint once again describes the factual allegations, addition some additional facts to address the defendants’ claims in their motion to dismiss. Further, there were some factual allegations that were altered between the filing of the First Amended Complaint and the Second Amended Complaint (e.g., spot traders base spot quotes on futures prices, see Consolidated Amended Class Action Complaint 122, versus futures prices are derivative of spot prices, see Second Consolidated Amended Class Action Complaint 106, 108). This factual issue was the specific subject of the Court’s request for supplemental briefing."
Defendants file Motion to Dismiss Second Amended Complaint on May 29, 2015
Again, the defendants asked the Court to dismiss the complaint. The plaintiffs filed opposition, the defendants filed reply papers, and the oral argument on the Motion was originally set for hearing on Feb. 16, 2016.
This oral argument date was postponed to Tuesday March 1, 2016, then again postponed to April 18, 2016 by order of the Court on March 1, 2016. (ECF document 110).
The Court requested the parties to address these items at the oral argument, issued as an Order on April 11, 2016:
“ORDER NO. 9: The following is a non-exhaustive list of topics that the Court wants the parties to address at oral argument: 1. Antitrust standing, including, inter alia, the connection between the Fix Price and the prices at which Plaintiffs transacted in the various markets in which they sold silver (e.g., whether there are Plaintiffs who bought or sold silver at the Fix Price or pursuant to contracts that specified they would be settled at the Fix Price); 2. The sources of the data relied upon by Plaintiffs and the statistical and quantitative methods on which Plaintiffs' allegations of collusion are based; 3. The proper length of the Class Period, including when the class period ends; 4. In the context of evaluating a motion to dismiss, the legal import of factual allegations that were altered between the filing of the First Amended Complaint and the Second Amended Complaint (e.g., spot traders base spot quotes on futures prices, see Consolidated Amended Class Action Complaint 122, versus futures prices are derivative of spot prices, see Second Consolidated Amended Class Action Complaint 106, 108); 5. The factual basis of Plaintiffs' assertion that Defendants' alleged misconduct had a persistent or continuing effect in the market; 6. The legal standards applicable to Plaintiffs' manipulative device and false reporting claims. (As further set forth in this Order.) (Signed by Judge Valerie E. Caproni on 4/11/2016) (spo) (Entered: 04/12/2016)”
Two Days After the Court Issues its Order Regarding Topics for Discussion at Oral Argument, Plaintiffs Report that Certain Defendants Have SETTLED
In a letter filed with the Court on April 13, 2016, counsel for Plaintiff report the following:
“Dear Judge Caproni:
As counsel for Plaintiffs, we are pleased to report that Plaintiffs and Defendants Deutsche
Bank AG; Deutsche Bank Americas Holding Corporation, DB U.S. Financial Markets Holding
Corporation, Deutsche Bank Securities, Inc.; Deutsche Bank Trust Corporation, Deutsche Bank
Trust Company Americas; Deutsche Bank AG New York Branch (collectively, "Deutsche
Bank") have executed a binding settlement term sheet today in the above-referenced action.
Plaintiffs and Deutsche Bank are in the process of negotiating the formal terms of a
settlement agreement which will supersede the term sheet. The settlement agreement will be
provided to Your Honor as part of Plaintiffs' anticipated motion for preliminary approval of the
In addition to valuable monetary consideration, Deutsche Bank has also agreed to provide cooperation to Plaintiffs, including the production of instant messages and other electronic communications, as part of the settlement. In Plaintiffs' estimation, the cooperation to be provided by Deutsche Bank will substantially assist Plaintiffs in the prosecution of their claims against the non-settling defendants.
Deutsche Bank intends to file a notice withdrawing its pending motion to dismiss prior to
the argument on April 18. We are available to address any questions Your Honor may have.
/s/ Vincent Briganti
Lowey Dannenberg Cohen & Hart, P.C.
cc: Counsel of Record (via ECF)
/s/ Robert Eisler
Grant Eisenhofer, P.A.
It is the bolded portion of the letter that raises the hair on the back of my neck!
Here is Germany’s largest bank, surely a MAJOR player in the power elite of the western fiat banking cartel, would NOT “provide cooperation to Plaintiffs” including “instant messages and other electronic communications” to the enemy who is trying to prove rigging? No way!
This electronic information will be DEVASTATING to the big banks. It will prove, beyond a shadow of a doubt, the intricate details of the price suppression scheme, including who, what, when and where it all happened.
This is unbelievable.
And, now, there is the argument on the motion to dismiss hearing that will take place on Monday, April 18, 2016. Who knows what way the court will go on the motion. If it is denied, then discovery will be allowed at some point, and ALL of the electronic information that Deutsche Bank is turning over will be used to get the emails and other electronic evidence from ALL the other defendants.
This is HUGE.
If I was a bankster, I would be avoiding nail guns, roof tops, hot tubs, small aircraft, etc.
Hey Brad Pitt, wanna do another movie?
Keep in Mind the Outcome
The remedies–lawyerspeak, which means what the plaintiffs get if they win–include everything they ask for in the “Prayer for Relief, XIV listed above.
The absolute HAMMER is the “TREBLE DAMAGES,” which means three times the actual jury verdict.
Damages is the legal way of saying money. In this case, damages means the money that the plaintiffs lost due to the illegal price fixing. How much could that be? Who knows. That is what a jury trial is for.
Also putting pressure on the defendants is the request for punitive damages. This is money taken from the defendants to PUNISH them for their bad behavior. It is ON TOP of TREBLE damages. It is a high burden to prove, but the threat of it is often plenty sufficient to cause high stakes litigation to settle.
If the Court denies the motion, GAME ON!
If the Court grants the motion, well, will the Plaintiffs appeal? Or will they just take the money from DB and call it a day?