You likely already have a sense for whether you traded in FX Instruments during the Relevant Period; however, if you’re unsure, here’s some guidance to help you make that determination.
A. Did you (i) trade in FX Instruments (ii) with one of the defendants (iii) during the Relevant Period, and (iv) do you meet the U.S. nexus requirement?
“FX Instruments” means FX Spot transactions, forwards, swaps, futures, options, and any other FX instrument or FX transaction where the trading or settlement value is related in any way to FX rates. FX Instruments includes both those traded directly OTC with the defendants as well as those traded over an exchange between January 1, 2003 and December 15, 2015 (the Relevant Period). The court has preliminarily approved two distinct settlement classes:
- The “Direct Settlement Class” – those who, from January 1, 2003 through December 15, 2015, entered into an FX Instrument directly with a Defendant, where such persons were either domiciled in the United States or its territories or, if domiciled outside the United States and its territories, transacted FX Instruments in the United States or its territories; and
- The “Exchange Only Settlement Class” – those who, from January 1, 2003 through December 15, 2015, entered into an FX Exchange-Traded Instrument, where such persons were either domiciled in the United States or its territories or, if domiciled outside the United States or its territories, entered into an FX Exchange-Traded Instrument on a U.S. exchange.
In considering whether a trade by a non-U.S. domiciled person was transacted in the United States, the Claims Administrator will look to where it was priced, placed, booked, financed, cleared and/or settled, or whether it was entered into on a U.S. exchange such as the CME or ICE Futures U.S.
B. Who is likely to have traded in FX Instruments?
There are essentially two categories of FX traders. First, there are those who participate in the FX market as a component of their investment strategy by placing bets on the movement of various exchange rates in relation to others. Institutions of all shapes and sizes invest in FX Instruments in this manner. If your institution does invest in FX Instruments, your investment team will know it, and will likely be able to give you a sense for what percentage of your portfolio is comprised of those instruments in order to assess the magnitude of this opportunity.
The other category relates to hedging. When institutions invest in foreign stock, for example, they typically assume a degree of currency exposure on top of their equity returns. The currency risk increases during periods when the underlying currency is rising or falling relative to the institution’s domicile currency. Many choose to hedge at least a portion of their currency exposure through various FX Instruments. Related to the hedging category, there are also companies that conduct a large portion of their business overseas. (Think, for example, about a multinational technology company that is purchasing large amounts of component parts from many different countries with those contracts denominated in various countries.) The company may choose to invest in FX Instruments to address contract price fluctuations.
In sum, we would expect this settlement to be most relevant to:
- Institutions with large global portfolios
- Institutions heavily invested in international ETFs
- Institutions that customarily incorporate hedging strategies to address currency risk
- Institutions that customarily engage in foreign exchange (FX or Forex) through brokerage trading accounts, foreign currency CDs, ETFs, foreign bonds and/or mutual funds
- Institutions that speculate on currency fluctuations by taking long or short positions various currencies
- Institutions that transaction a lot of business overseas
C. Is anyone explicitly excluded from the settlement?
There two settlement classes expressly excluded: the defendants themselves, their co-conspirators, officers, directors, employees, affiliates, and entities in which the defendants have a controlling interest. These persons and entities are not eligible for recovery.
There is an important exception for certain investment vehicles in which a defendant has a direct or indirect interest or as to which its affiliates act as an investment advisor, but of which the defendant is not a majority owner. These investment vehicles are not excluded.
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