COURT FILE NO.: CV-15-536174
DATE: 20210723
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JOSEPH S. MANCINELLI, CARMEN PRINCIPATO, DOUGLAS SERROUL, LUIGI CARROZZI, MANUEL BASTOS and JACK OLIVEIRA in their capacity as THE TRUSTEES OF THE LABOURERS’ PENSION FUND OF CENTRAL AND EASTERN CANADA, and CHRISTOPHER STAINES
Plaintiffs
– and –
ROYAL BANK OF CANADA, RBC CAPITAL MARKETS LLC, BANK OF AMERICA, CORPORATION, BANK OF AMERICA, N.A., BANK OF AMERICA CANADA, BANK OF AMERICA NATIONAL ASSOCIATION, BANK OF MONTREAL, BMO FINANCIAL CORP., BMO HARRIS BANK N.A., BMO CAPITAL MARKETS LIMITED, THE BANK OF TOKYO MITSUBISHI UFJ LTD., BANK OF TOKYO-MITSUBISHI UFJ (CANADA), BARCLAYS BANK PLC, BARCLAYS CAPITAL INC., BARCLAYS CAPITAL CANADA, INC., BNP PARIBAS GROUP, BNP PARIBAS NORTH AMERICA INC., BNP PARIBAS, (CANADA), BNP PARIBAS, CITIGROUP, INC., CITIBANK, N.A., CITIBANK CANADA, CITIGROUP GLOBAL MARKETS CANADA INC., CREDIT SUISSE GROUP AG, CREDIT, SUISSE SECURITIES (USA) LLC, CREDIT SUISSE AG, CREDIT SUISSE SECURITIES, (CANADA), INC., DEUTSCHE BANK AG, THE GOLDMAN SACHS GROUP, INC., GOLDMAN, SACHS & CO., GOLDMAN SACHS CANADA INC., HSBC HOLDINGS PLC, HSBC BANK PLC, HSBC NORTH AMERICA HOLDINGS INC., HSBC BANK USA, N.A., HSBC BANK CANADA, JPMORGAN CHASE & CO., J.P. MORGAN BANK CANADA, J.P. MORGAN CANADA, JPMORGAN CHASE BANK NATIONAL ASSOCIATION, MORGAN STANLEY, MORGAN STANLEY CANADA LIMITED, ROYAL BANK OF SCOTLAND, GROUP PLC, RBS SECURITIES, INC., ROYAL BANK OF SCOTLAND N.V., ROYAL, BANK OF SCOTLAND PLC, SOCIÉTÉ GÉNÉRALE S.A., SOCIÉTÉ GÉNÉRALE, (CANADA), SOCIÉTÉ GÉNÉRALE, STANDARD CHARTERED PLC, TORONTO DOMINION BANK, TD BANK. N.A., TD GROUP HOLDINGS, LLC, TD BANK USA, N.A., TD SECURITIES LIMITED, UBS AG, UBS SECURITIES LLC, and UBS BANK (CANADA)
Defendants
Charles Wright, Daniel Bach, Alex Dimson, David Sterns, Louis Sokolov, Kirk M. Baert, Nathalie Gondek, Reidar Mogerman, and David G.A. Jones for the Plaintiffs
Paul Le Vay, Brendan van Niejenhuis, and Stephen Aylward for the Defendants, Toronto Dominion Bank, TD Securities, TD Bank USA, N.A. and TD Bank, N.A.
Larry P. Lowenstein, Allan D. Coleman and Robert Carson for the Royal Bank of Canada and RBC Capital Markets LLC.
Rene Sorell, Don Houston, Andrew Matheson, Shane D’Souza, and Caroline Humphrey for the Defendants, Credit Suisse Group AG, Credit Suisse Securities (USA) LLC, Credit Suisse AG and Credit Suisse Securities (Canada), Inc.
Subrata Bhattacharjee, Caitlin R. Sainsbury and Pierre N. Gemson for the Defendant, Deutsche Bank AG
Proceeding under the Class Proceedings Act, 1992
HEARD: In writing
PERELL, J.
REASONS FOR DECISION
[1] In this action under the Class Proceedings Act, 1992,[^1] the Plaintiffs, Joseph S. Mancinelli, Carmen Principato, Douglas Serroul, Luigi Carrozzi, Manuel Bastos, and Jack Oliveira, in their capacity as The Trustees of the Labourers’ Pension Fund of Central and Eastern Canada (“Labourers”), and Christopher Staines, sued eighteen groups of bank financial institutions.
[2] The Plaintiffs, through Mr. Staines, commenced this action by way of Statement of Claim, which was issued on September 11, 2015. The Plaintiffs allege that the Defendants conspired with each other to fix prices in the futures exchange market (“FX Market”). The Statement of Claim pleads several causes of action including a statutory right of action for contraventions of Part VI of the Competition Act;[^2] namely: civil conspiracy, and unjust enrichment. It is alleged that through the use of multiple chat rooms with names such as “The Cartel,” “The Bandits’ Club,” and “The Mafia,” the Defendants communicated directly with each other to coordinate their: (i) fixing of spot prices; (ii) control and manipulation of FX benchmark rates; and (iii) exchange of key confidential customer information to trigger client stop loss orders and limit orders. The Plaintiffs allege that the Defendants’ conspiracy impacted all manner of FX instruments, including those trading both over the counter and on exchanges.
[3] The Class Counsel team is made up of lawyers from Sotos LLP, Siskinds LLP, Koskie Minsky LLP and Camp Fiorante Matthews Mogerman LLP.
[4] Similar litigation has been commenced in Québec. Class Counsel in the Ontario action is working cooperatively with the law firm of Siskinds Desmeules s.e.n.c.r.l (“Siskinds Québec”), counsel in the Québec action (Court File No. 200-06-000189-152), to prosecute the Québec action. Class Counsel and Siskinds Québec are working together and have agreed to pursue the litigation on a national basis with carriage in Ontario.
[5] The Plaintiffs reached court approved settlements with fourteen groups of Defendants; namely: (1) UBS AG, UBS Securities LLC and UBS Bank (Canada); (2) BNP Paribas Group, BNP Paribas North America Inc., BNP Paribas (Canada), and BNP Paribas; (3) Bank of America Corporation, Bank of America, N.A., Bank of America Canada and Bank of America National Association; (4) The Goldman Sachs Group, Inc., Goldman, Sachs & Co., and Goldman Sachs Canada Inc.; (5) JPMorgan Chase & Co., J.P. Morgan Bank Canada, J.P. Morgan Canada, and JPMorgan Chase Bank National Association; (6) Citigroup, Inc., Citibank, N.A., Citibank Canada, and Citigroup Global Markets Canada Inc; (7) Barclays Bank PLC, Barclays Capital Inc., and Barclays Capital Canada Inc. (“Barclays”); (8) HSBC Holdings PLC, HSBC Bank PLC, HSBC North America Holdings Inc., HSBC Bank USA, N.A., and HSBC Bank Canada (“HSBC”); (9) Royal Bank of Scotland Group PLC, RBS Securities, Inc., Royal Bank of Scotland N.V., and Royal Bank of Scotland PLC (“RBS”); (10) Standard Chartered PLC; (11) The Bank of Tokyo Mitsubishi UFJ Ltd. and Bank of Tokyo-Mitsubishi UFJ (Canada) (“Bank of Tokyo”); (12) Société Générale S.A., Société Générale (Canada) and Société Générale (Société Générale); (13) Morgan Stanley; and (14) Bank of Montreal, BMO Financial Corp., BMO Harris Bank N.A. and BMO Capital Markets Limited (“BMO”).[^3]
[6] The Chart below sets out the settlements.
Settled Defendants
Amount
UBS AG, UBS Securities LLC and UBS Bank (Canada)
$4,950,000
BNP Paribas Group, BNP Paribas North America, Inc., BNP Paribas (Canada), and BNP Paribas
$4,500,000
Bank of America Corporation, Bank of America, N.A., Bank of America Canada, and Bank of America National Association
$6,500,000
The Goldman Sachs Group, Inc., Goldman, Sachs & Co., and Goldman Sachs Canada Inc.
$6,750,000
JPMorgan Chase & Co., J.P. Morgan Bank Canada, J.P. Morgan Canada, and JPMorgan Chase Bank National Association
$11,500,000
Citigroup Inc., Citibank, N.A., Citibank Canada, and Citigroup Global Markets Canada Inc.
$21,000,000
Barclays Bank PLC, Barclays Capital Inc., and Barclays Capital Canada Inc.
$19,677,205.88
HSBC Holdings PLC, HSBC Bank PLC, HSBC North America Holdings Inc., HSBC Bank USA, N.A., and HSBC Bank Canada
$15,500,000
Royal Bank of Scotland Group PLC, RBS Securities, Inc., Royal Bank of Scotland N.V., and Royal Bank of Scotland PLC
$13,220,000
Standard Chartered PLC
$900,000
The Bank of Tokyo Mitsubishi UFJ, Ltd., and Bank of Tokyo-Mitsubishi UFJ (Canada)
$450,000
Société Générale S.A., Société Générale (Canada) and Société Générale
$1,800,000
Morgan Stanley
$2,300,000 US
Bank of Montreal, BMO Financial Corp., BMO Harris Bank N.A. and BMO Capital Markets Limited
$250,000
[7] The distribution of the previous settlement funds is currently in administration.
[8] The Plaintiffs have now reached a settlement with: (a) Toronto Dominion Bank, TD Securities, TD Bank USA, N.A. and TD Bank, N.A; (b) the Royal Bank of Canada and RBC Capital Markets LLC; (c) Credit Suisse Group AG, Credit Suisse Securities (USA) LLC, Credit Suisse AG and Credit Suisse Securities (Canada), Inc.; and (d) Deutsche Bank AG.
[9] Pursuant to their settlement agreements: (a) TD agrees to pay $4.5 million less $175,000 previously paid towards the costs of the contested certification motion; (b) RBC agrees to pay $6,556,000 less $175,000 previously paid towards the costs of the contested certification motion; (c) Credit Suisse agrees to pay CAD $5,560,000; and (d) Deutsche Bank agrees to pay USD $7,220,000 less the $175,000 converted to USD $144,000 previously contributed to the costs of the contested certification motion.
[10] The Plaintiffs bring a motion for the following relief:
Orders that for the purposes of the Orders, except to the extent that they are modified in the Orders, the definitions set out in the Settlement Agreements entered into with: (a) Toronto Dominion Bank, TD Bank, N.A., TD Group US Holdings, LLC, TD Bank USA, N.A., and TD Securities Limited (collectively, “TD”) dated May 7, 2021; (b) Royal Bank of Canada and RBC Capital Markets LLC (collectively, “RBC”) dated May 7, 2021; (c) Credit Suisse Group AG, Credit Suisse Securities (USA) LLC, Credit Suisse AG, Credit Suisse Securities (Canada), Inc. (collectively, “Credit Suisse”) dated May 7, 2021; and (d) Deutsche Bank AG (“Deutsche Bank”) dated July 2, 2021; apply to and are incorporated into each respective Order;
Orders that the short-form and long-form notices of certification and settlement approval hearing are approved substantially in the forms attached respectively hereto as Schedules “A” and “B” to the Notice of Motion;
Orders that the plan of dissemination for the short-form and long-form notices of certification and settlement approval hearing (the “Plan of Dissemination”) is approved in the form attached hereto as Schedule “C” to the Notice of Motion and that the notices of certification and settlement approval hearing shall be disseminated in accordance with the Plan of Dissemination;
Orders that the Ontario Action is certified as a class proceeding as against TD, RBC, Credit Suisse, and Deutsche Bank for settlement purposes only;
Orders that the “Ontario Settlement Class” is certified as follows:
All Persons in Canada who, between January 1, 2003 and December 31, 2013, entered into an FX Instrument [1] either directly or indirectly through an intermediary, and/or purchased or otherwise participated in an investment or equity fund, mutual fund, hedge fund, pension fund or any other investment vehicle that entered into an FX Instrument. Excluded from the class are the defendants, their parent companies, subsidiaries, and affiliates; provided, however, that Investment Vehicles shall not be excluded from the Settlement Class
[1] “FX Instruments” includes FX spot transactions, outright forwards, FX swaps, FX options, FX futures contracts, options on FX futures contracts, and other instruments traded in the FX Market.
Orders that the time limit for opting out of the Ontario Settlement Class has expired in respect of all Released Claims with respect to TD, RBC, Credit Suisse, and Deutsche Bank;
Orders that Joseph S. Mancinelli, Carmen Principato, Douglas Serroul, Luigi Carrozzi, Manuel Bastos, and Jack Oliveira in their capacity as The Trustees of the Labourers’ Pension Fund of Central and Eastern Canada are appointed as the representative plaintiffs for the Ontario Settlement Class;
Orders that the following issue is common to the Ontario Settlement Class: Did the Settling Defendants conspire to fix, raise, maintain, stabilize, control, or enhance unreasonably the prices of currency purchased in the FX Market?
Orders that the Orders, any reason given by the Court in connection with the Orders, and the certification of the Ontario Action as against TD, RBC, Credit Suisse and Deutsche Bank for settlement purposes pursuant to the Orders, including, without limitation, the definition of the Ontario Settlement Class and the Common Issue, are without prejudice to the rights and defences of the Non-Settling Defendants in connection with the ongoing Ontario Action and, without restricting the generality of the foregoing, may not be relied on by any Person to establish jurisdiction, the criteria for certification (including class definition) or the existence or elements of the causes of action asserted in the Ontario Action, as against the Non-Settling Defendants;
Orders that the Orders shall be set aside, declared null and void and of no force and effect in respect of TD, RBC, Credit Suisse and/or Deutsche Bank on subsequent motion made on notice in the event that the settlement agreement in respect of either TD, RBC, Credit Suisse and/or Deutsche Bank is terminated in accordance with its terms;
Orders that the Orders are contingent upon a parallel order being made by the Quebec Court, and the terms of the Orders shall not be effective unless and until such order is made by the Quebec Court; and
Such further and other relief as counsel may request and as this Honourable Court may deem just.
[11] The proposed class definition is the same class definition that was was certified in the earlier settlement proceedings.
[12] Class Counsel propose to distribute the TD, RBC, Credit Suisse, and Deutsche Bank settlement funds pursuant to the previously approved Distribution Protocol. At the settlement approval hearing, Class Counsel will seek an order authorizing this distribution.
[13] The court is required to certify the action as a class proceeding where the following five-part test in s. 5 of the Class Proceedings Act, 1992 is met: (1) the pleadings disclose a cause of action; (2) there is an identifiable class of two or more persons that would be represented by the representative plaintiff; (3) the claims of the class members raise common issues; (4) a class proceeding would be the preferable procedure for the resolution of the common issues; and (5) there is a representative plaintiff who: (a) would fairly and adequately represent the interests of the class; (b) has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members of the proceeding, and (c) does not have, on the common issues for the class, an interest in conflict with the interests of other class members.
[14] The fact that an action is certified on consent for settlement purposes does not dispense with the need to meet the certification criteria but they may be less rigorously applied in a settlement context.[^4]
[15] Pursuant to s. 5(1) of the Class Proceedings Act, 1992, having reviewed the motion record, I am satisfied that all of the criteria for certification have been satisfied and that the ancillary relief should be granted.
[16] Orders accordingly. I have signed the Orders.
Perell, J.
Released: July 23, 2021
COURT FILE NO.: CV-15-536174
DATE: 20210723
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JOSEPH S. MANCINELLI, CARMEN PRINCIPATO, DOUGLAS SERROUL, LUIGI CARROZZI, MANUEL BASTOS and JACK OLIVEIRA in their capacity as THE TRUSTEES OF THE LABOURERS’ PENSION FUND OF CENTRAL AND EASTERN CANADA, and CHRISTOPHER STAINES
Plaintiffs
– and –
ROYAL BANK OF CANADA, RBC CAPITAL MARKETS LLC, BANK OF AMERICA, CORPORATION, BANK OF AMERICA, N.A., BANK OF AMERICA CANADA, BANK OF AMERICA NATIONAL ASSOCIATION, BANK OF MONTREAL, BMO FINANCIAL CORP., BMO HARRIS BANK N.A., BMO CAPITAL MARKETS LIMITED, THE BANK OF TOKYO MITSUBISHI UFJ LTD., BANK OF TOKYO-MITSUBISHI UFJ (CANADA), BARCLAYS BANK PLC, BARCLAYS CAPITAL INC., BARCLAYS CAPITAL CANADA, INC., BNP PARIBAS GROUP, BNP PARIBAS NORTH AMERICA INC., BNP PARIBAS, (CANADA), BNP PARIBAS, CITIGROUP, INC., CITIBANK, N.A., CITIBANK CANADA, CITIGROUP GLOBAL MARKETS CANADA INC., CREDIT SUISSE GROUP AG, CREDIT, SUISSE SECURITIES (USA) LLC, CREDIT SUISSE AG, CREDIT SUISSE SECURITIES, (CANADA), INC., DEUTSCHE BANK AG, THE GOLDMAN SACHS GROUP, INC., GOLDMAN, SACHS & CO., GOLDMAN SACHS CANADA INC., HSBC HOLDINGS PLC, HSBC BANK PLC, HSBC NORTH AMERICA HOLDINGS INC., HSBC BANK USA, N.A., HSBC BANK CANADA, JPMORGAN CHASE & CO., J.P. MORGAN BANK CANADA, J.P. MORGAN CANADA, JPMORGAN CHASE BANK NATIONAL ASSOCIATION, MORGAN STANLEY, MORGAN STANLEY CANADA LIMITED, ROYAL BANK OF SCOTLAND, GROUP PLC, RBS SECURITIES, INC., ROYAL BANK OF SCOTLAND N.V., ROYAL, BANK OF SCOTLAND PLC, SOCIÉTÉ GÉNÉRALE S.A., SOCIÉTÉ GÉNÉRALE, (CANADA), SOCIÉTÉ GÉNÉRALE, STANDARD CHARTERED PLC, TORONTO DOMINION BANK, TD BANK. N.A., TD GROUP HOLDINGS, LLC, TD BANK USA, N.A., TD SECURITIES LIMITED, UBS AG, UBS SECURITIES LLC, and UBS BANK (CANADA)
Defendants
REASONS FOR DECISION
PERELL J.
Released: July 23, 2021
[^1]: S.O. 1992, c. 6.
[^2]: R.S.C. 1985, c. C-34.
[^3]: See: Staines v. Royal Bank of Canada, 2016 ONSC 5270; Mancinelli v. Royal Bank of Canada, 2016 ONSC 6953; Mancinelli v. Royal Bank of Canada, 2016 ONSC 7857; Mancinelli v. Royal Bank of Canada, 2017 ONSC 2324; Mancinelli v. Royal Bank of Canada, 2017 ONSC 3910; Mancinelli v. Royal Bank of Canada, 2017 ONSC 4219; Mancinelli v. Royal Bank of Canada, 2017 ONSC 5503; Mancinelli v. Royal Bank of Canada, 2018 ONSC 6129; Mancinelli v. Royal Bank of Canada, 2020 ONSC 4328.
[^4]: Osmun v. Cadbury Adams Canada Inc., [2009] O.J. No. 5566 at para. 21 (S.C.J.).