Frequently Asked Questions
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Plaintiffs allege that, from January 1, 2004 through June 30, 2013 inclusive (the “Settlement Class Period”), the Settling Defendants conspired with Barclays Bank plc, Société Générale SA, The Bank of Nova Scotia, and The London Gold Market Fixing Limited (together, “Non-Settling Defendants”) to drive down the price of gold around the time of a daily, secret, and unregulated afternoon meeting (the “PM Gold Fix”). The PM Gold Fix was intended to determine the global benchmark price per ounce of gold (the “Fix price”) based on supply and demand fundamentals stemming from a competitive gold auction among the Fixing members. However, Defendants allegedly capitalized on the lack of regulatory oversight and the private nature of the PM Gold Fix to facilitate Defendants’ agreement to manipulate and fix gold prices and the prices of Gold Investments during the Settlement Class Period. Defendants’ conduct harmed other market participants like Plaintiffs and the Settlement Class. “Gold Investments” means (i) gold bullion, gold bullion coins, gold ingots, gold bars, or any other form of physical gold, (ii) gold futures contracts in transactions conducted in whole or in part on COMEX or any other exchange operated in the United States (iii) shares in gold ETFs, (iv) gold call options in transactions conducted over-the-counter or in whole or in part on COMEX or any other exchange operated in the United States (v) gold put options in transactions conducted over-the-counter or in whole or in part on COMEX or any other exchange operated in the United States, and (vi) gold spot, gold forwards, or gold swaps traded over-the-counter.
The Defendants, by virtue of their overt but non-public interactions in connection with the daily Gold Fixing, were uniquely positioned to effectively “name their own” Fix price and thereby to gain an unfair advantage with respect to the contracts, derivatives, and physical positions that they held in the market, all of which were correlated to the Fix price in one way or another. In particular, Plaintiffs allege that Defendants were motivated to profit, and did in fact profit, from their intentional and coordinated suppression of gold prices around the PM Fixing, which had the effect of depressing prices for Gold Investments. Plaintiffs allege that Defendants effectuated their conspiracy in several ways. For example, leading up to the PM Fixing, Defendants allegedly collected confidential client order information and then improperly shared that information amongst themselves in order to compare and coordinate the execution of particularly large sell trades, thereby driving down the gold spot price immediately before and during the Fixing call. During the Fixing window itself, Plaintiffs allege that Defendants offered “rigged” auction rates that were either fabricated or artificially depressed by Defendants’ prior coordination of large sell orders, which had the effect of magnifying a downward effect in the resulting Fix price. Defendants also allegedly communicated with each other throughout the day through phone calls, chat rooms, and other forms of electronic communication to coordinate trading (including to “net off” large buy orders) in order to ensure that their efforts to drive down the gold price were not undone by counteracting trading activity. Plaintiffs further allege that Defendants used manipulative trading tactics such as “spoofing” (sending false signals to the market by placing large orders that were never executed), “wash sales” (placing large orders that are executed and then quickly reversed), and “front running” of customer orders in order artificially to suppress the price of gold.
Plaintiffs have asserted legal claims under federal antitrust law for price fixing and unlawful restraint of trade; under the Commodity Exchange Act for price manipulation, manipulation by false reporting and fraud and deceit, aiding and abetting and principal-agent liability, and under the common law.
Plaintiffs and Plaintiffs’ Co-Lead Counsel believe that Settlement Class Members have been damaged by Defendants’ conduct. The Settling Defendants do not agree with the allegations made by Plaintiffs, believe that they have meritorious defenses to Plaintiffs’ allegations, and believe that certain of Plaintiffs’ claims would have been rejected prior to trial, at trial (had Plaintiffs successfully certified a class and survived summary judgment motions), or on appeal. As a result, the Settling Defendants believe Settlement Class Members would have received nothing if the litigation had continued to trial.
The Court has not decided for or against Plaintiffs or the Settling Defendants. Instead, Plaintiffs’ Co-Lead Counsel engaged in negotiations with the Settling Defendants to reach a negotiated resolution of the claims against the Settling Defendants in this Action. The Settlements allow Plaintiffs and the Settling Defendants to avoid the risks and costs of lengthy litigation and the uncertainty of pre-trial proceedings, a trial, and appeals. If approved, the Settlements would permit eligible Settlement Class Members, who file timely and valid Proof of Claim and Release Forms, to receive compensation, rather than risk ultimately receiving nothing. Plaintiffs and Plaintiffs’ Co-Lead Counsel believe the Settlements are in the best interest of all Settlement Class Members
All persons or entities who during the period from January 1, 2004 through June 30, 2013, either (A) sold any physical gold or financial or derivative instrument in which gold is the underlying reference asset, including, but not limited to, those who sold (i) gold bullion, gold bullion coins, gold bars, gold ingots or any form of physical gold, (ii) gold futures contracts in transactions conducted in whole or in part on COMEX or any other exchange operated in the United States, (iii) shares in gold exchange-traded funds (“ETFs”), (iv) gold call options in transactions conducted over-the-counter or in whole or in part on COMEX or any other exchange operated in the United States; (v) gold spot, gold forwards or gold swaps over-the-counter; or (B) bought gold put options in transactions conducted over-the-counter or in whole or in part on COMEX or on any other exchange operated in the United States.
Excluded from the Settlement Class are Defendants, their officers, directors, management, employees, affiliates, parents, subsidiaries, and co-conspirators, whether or not named in the Action, and the United States Government, and other governments. Also excluded is the Judge presiding over this action, her law clerks, spouse, and any person within the third degree of relationship living in the Judge’s household and the spouse of such a person.
If you are a Settlement Class Member and you do not exclude yourself, you can tell the Court what you think about the Settlement. You can object to all or any part of the Settlement, Plan of Allocation, and/or application for attorneys’ fees, reimbursement of litigation costs and expenses, and any service awards for Plaintiffs. You can give reasons why you think the Court should approve them or not. The Court will consider your views.
If you want to make an objection in the Action, you may enter an appearance in the Action, at your own expense, individually or through counsel of your own choice, by filing with the Clerk of Court a notice of appearance and your objection, and serving copies of your objection on Plaintiffs’ Co-Lead Counsel and the Settling Defendants’ Counsel by August 6, 2021 to the following mailing addresses:
Plaintiffs' Interim Co-Lead Counsel
Deutsche Bank Counsel
If you choose to object, you must file a written objection with the Clerk of the Court. You cannot file an objection by telephone or email. Your written objection must include a statement of the objection, as well as the specific legal and factual reasons for each objection, including all support that the objecting Class Member or the governmental entity wishes to bring to the Court’s attention and all evidence the objecting Class Member or governmental entity wishes to introduce in support of his, her, or its objection. The submission must contain: (i) a heading that refers to this Action by case name and case number (IN RE: COMMODITY EXCHANGE, INC., GOLD FUTURES AND OPTIONS TRADING LITIGATION, Nos. 14-MD-2548 (VEC) (S.D.N.Y.)); (ii) a statement of the specific legal and factual basis for each objection, including whether the objection applies only to the objecting person, a specific subset of the Settlement Class, or the entire Settlement Class; (iii) a statement of whether the objecting person or entity intends to appear at the Fairness Hearing, either in person or through counsel and, if through counsel, a statement identifying that counsel by name, address, and telephone number; (iv) a description of any and all evidence the objecting person or entity may offer at the Fairness Hearing, including but not limited to the names, addresses, and expected testimony of any witnesses; all exhibits intended to be introduced at the Fairness Hearing; and documentary proof of the objecting person’s membership in the Settlement Class; (v) a description of the Gold Investment transactions entered into by the member of the Settlement Class that fall within the Settlement Class definition; and (vi) a list of other cases in which the objector or counsel for the objector has appeared either as an objector or counsel for an objector in the last five years. Persons who have timely submitted a valid Request for Exclusion are not Class Members and are not entitled to object. All written objections must be signed by the Class Member (or his, her, or its legally authorized representative), even if the Class Member is represented by counsel.
If you do not timely and validly submit your objection, your views will not be considered by the Court or any court on appeal. Check this website for updates on important dates and deadlines relating to the Settlement.
The Court has scheduled a Fairness Hearing for October 7, 2021 at 10:00 A.M. to be held at the Thurgood Marshall United States Courthouse, 40 Foley Square, New York, New York, Courtroom 443. Given the current COVID-19 situation, the Court reserves the right to conduct the final fairness hearing remotely. The Court currently expects to allow participants to attend remotely using dial-in information contained in the Notice. Please check this website for updates as to date, time, and access information. At the Fairness Hearing, the Court will determine, among other things, if the proposed Settlement is fair, reasonable, and adequate. The Court will also consider Plaintiffs’ Interim Co-Lead Counsel’s request for attorneys’ fees and reimbursement of litigation expenses.
The time and date of the Fairness Hearing may be continued from time to time without further notice and you are advised to confirm the time and location if you wish to attend. The process for attending remotely may also change without further notice. However, as soon as practicable after any change in the scheduled date and time or remote-access procedures, such change will be posted on the Settlement Website.
If you are a Class Member, you are entitled to appear, in person or through duly authorized attorneys, and to show cause why the Settlement or other applications should or should not be approved. However, if you wish to appear, you must submit a written statement, along with any materials you wish the Court to consider—see Section III of the Notice. This written statement must be received by the Court (at the address provided above) no later than August 6, 2021, or it will not be considered. Such materials must also be served on Plaintiffs’ Interim Co-Lead Counsel and counsel of record for Deutsche Bank and HSBC at the addresses set forth in FAQ 6 by overnight mail or by hand or they will not be considered.
The Settlement Agreement and other important documents related to these Actions are available in the documents section of this website and also available for review during normal business hours at the office of the Clerk of Court, United States District Court for the Southern District of New York, 500 Pearl Street, New York, New York 10007-1312. If you have questions about the Notice, the procedure for registering, or the Settlement Agreements, you may contact Plaintiffs’ Interim Co-Lead Counsel at the address listed in Section FAQ 6.
DO NOT CONTACT THE DISTRICT COURT OR THE CLERK'S OFFICE REGARDING THIS WEBSITE.
The premium paid or received, not the amount of underlying gold referenced in the option.
No, but care must be taken because while most of the qualifying transaction types are sales, for gold put options only purchases qualify. Thus, generally speaking, the option premium amounts for bought gold put options plus the sales amount for all other types of qualifying transactions should be added together to form the reported annual qualifying Transaction Amount. The resulting total should not be reduced by, for example, purchases of physical gold or sales of put options.
For example, if a class member sold $100,000 in physical gold in a qualifying year, but bought $80,000 in physical gold the same year, the Claim Form should list a Transaction Amount of $100,000 (the gross sales amount) not $20,000 (the “net” amount). If the same class member also spent $10,000 on gold put option purchase premiums, the Transaction Amount for that year would be $110,000, even if the class member also sold put options that year.
Please note the important exception to all this is that no positions should be reported if they were opened and closed the same day.
As stated in the claim form, only transactions occurring in the United States or on an exchange in the United States qualify. Thus, for instance, transactions done over COMEX would qualify regardless of your domicile and regardless of where the gold would have been delivered if physical delivery were taken.
For OTC contracts, if either you or your counterparty was domiciled in the United States at the time of the transaction, absent additional facts, the administrator would likely take that as a good-faith basis to make the declaration that the trade occurred in a relevant way in the United States. At the same time, if you did have data indicating where the specific traders involved were located at the time of a given transaction, absent additional facts, the administrator would also likely take that as a good-faith basis to make the declaration that the trade occurred in a relevant way in the United States.
To be clear, however, whether a given claim is actually accepted would turn on the totality of the facts and circumstances, including those revealed in any potential audit of a given claim. If you believe you have additional facts that indicate a trade “occurred” in the United States, please contact the Settlement Administrator thru the contact section of this website.
If the swap leg involves a negative or short exposure to the Gold Investment, that leg should be entered into the claim form for the year during which the swap position was opened. If the swap involves a positive or long exposure to the Fix-Linked Instrument, that leg should be entered into the claim form for the year during which the swap position was exited.
Each leg of the swap will be entered into the claim form according to the same instructions that apply to all other Gold Investments, including the following
- For swap legs involving spot, forwards, futures, or ETF shares, the claimant should enter the total dollar value of that leg into the appropriate section of the claim form. For swap legs involving long put options or short call options, the claimant should enter the option premium only.
- Swap legs involving Gold Investments expressly linked to the London PM Gold Market Fixing would be entered into Part II, Section 1 of the claim form (“Fix-Linked Transactions”).
- Swap legs involving shares of ETFs or derivatives thereof would be entered into Part II, Section 3 of the claim form (“ETF Other Transactions”).
- Swap legs involving any other Gold Investments would be entered into Part II, Section 2 of the claim form (“Non-ETF Other Transactions”).
Pursuant to the Claim From and footnote 1 of the Plan of Allocation, to qualify as an “ETF Other Transaction,” generally the ETF should invest only in gold bullion and the performance of its shares should generally track the price of gold bullion, less the costs of its operations. The Claims Administrator has determined that, in addition to “GLD” and “IAU” ETFs disclosed on the Claim Form, the gold ETFs “SGOL” and PHYS also may qualify. Accordingly, qualifying SGOL and PHYS transactions can also be included in the third table in the Claim Form. Please contact the Claims Administrator if you have any questions, or if you believe other ETF shares should qualify.
Please take note of the other requirements, including without limitation that the transaction must have taken place in the United States. Transactions of PHYS carried out on a non- U.S. exchange, for example, thus should not be included in the Claim Form.
Please contact the Claims Administrator if you have any questions, or if you believe other ETF shares should qualify.