Commodities

Kirby McInerney has decades of experience representing investors in litigation relating to the manipulation of physical commodities, commodity futures, and related derivative products.

The firm’s experience in commodities manipulation, in cases brought under the Commodities Exchange Act or under the Sherman Act and state law analogs, spans the markets for gasoline, propane, cement, concrete, steel, potash, silver, and even fixed income products. In recent years, KM has been involved in some of the most cutting edge areas of commodity futures manipulation cases. KM also participated in a seminal case involving Sumitomo Corporation’s manipulation of the copper market.

KM attorneys are exceptionally well versed in commodities markets and litigation. In fact, David Kovel, who leads KM’s Commodities Litigation practice, worked in the commodities export markets prior to embarking on his legal career. As a commodities trader, Mr. Kovel took financial risk in futures and options markets and traded in physical markets in the U.S., Europe, Asia, and Latin America. He became a specialist at trading in futures delivery markets and understanding the relationship between futures prices and the physical spot markets.

Examples of KM’s experience in physical commodities, commodity futures, and related derivative product litigation include:
 

• In re LIBOR-Based Financial Instruments Antitrust Litigation, No. 11-md-02262 (S.D.N.Y.). KM filed the first LIBOR manipulation lawsuit on behalf of investors and currently serves as court-appointed co-lead counsel for the exchange-based class alleging the fixing of prices of a benchmark interest rate.  The case has resulted in partial settlements of $187 million which combined represent the largest recovery in a “futures-only” commodities class action litigation.

 

• Wacker v. JP Morgan Chase & Co., No. 15-cv-00994 (S.D.N.Y.).  Representation of individual silver futures traders alleging manipulation of silver futures spreads.  KM achieved a landmark appellate decision in this case establishing pleading standards for monopolization claims in futures markets.  The case preceded a related Department of Justice criminal investigation into JPMorgan that resulted in an over-$920 million criminal penalty.

 

• In re Credit Default Swaps Auctions Litigation, 21-cv-00606 (D.N.M.). Lead counsel on behalf of the New Mexico Attorney General’s Office and the New Mexico State Investment Council alleging that leading credit default swap (CDS) dealers took part in a more than decade-long, multibillion-dollar scheme to manipulate the benchmark prices used to value credit default swap contracts at settlement.

 

• Dennis v. The Andersons, Inc. et al., No. 20-cv-04090 (N.D. of Ill.). Co-lead counsel of a putative class of exchange-based investors alleging monopolization and manipulation of Chicago Board of Trade soft red winter wheat futures contracts in violation of federal antitrust and commodity exchange laws.

 

• Sullivan v. Barclays PLC, No. 13-cv-02811 (S.D.N.Y.).  Class counsel in the benchmark rate antitrust litigation on behalf of a putative class of investors who traded derivative products linked to Euribor, including futures and options contracts on the NYSE LIFFE exchange.  The case has already resulted in partial settlements of more than $300 million.

 

• In re JPMorgan Treasury Futures Spoofing Litig., No. 1:20-cv-03515 (S.D.N.Y.). Lead counsel in an antitrust case alleging that JPMorgan unlawfully and intentionally manipulated U.S. Treasury Futures or Options on U.S. Treasury Futures traded on United States-based exchanges, including but not limited to the Chicago Mercantile Exchange, including its subsidiary the Chicago Board of Trade, during the Class Period in violation of the Commodity Exchange Act, 7 U.S.C. §§ 1, et seq. (the “CEA”) and the common law.  The case resulted in a settlement of $15.7 million.

 

• In re Foreign Exchange Benchmark Rates Antitrust Litigation, No. 13-cv-07789 (S.D.N.Y.).  Special fiduciary representation for the exchange-based investors of futures and options in class action alleging the manipulation of the FX market.  The case has already resulted in partial settlements of more than $2.3 billion.

 

• In re Deutsche Bank Spoofing Litig., No. 20-cv-03638 (N.D. of Ill.). Co-lead counsel on behalf of a putative class of investors in this trading markets manipulation case alleging manipulation through “spoofing” of U.S. Treasury futures traded on the Chicago Board of Trade and Eurodollar futures traded on the Chicago Mercantile Exchange. This matter is important because it seeks to curb manipulative and abusive practices by dominant financial institutions and make Treasury futures markets more efficient.

 

• In re Bank of Nova Scotia Spoofing Litigation, No. 20-cv-11059 (D.N.J.). As a court-appointed Executive Committee member, the firm has served in a leadership capacity in this case which alleges that defendants manipulated precious metals futures traded on the New York Mercantile Exchange and the Commodity Exchange, Inc. This matter is important in that it seeks to curb manipulative and abusive practices by dominant financial institutions and make metals futures markets more efficient.

 

• In re Natwest Treasury Futures Spoofing Litig., 22-cv-00479 (N.D. Ill.).  Co-lead counsel on behalf of a putative class of investors in a trading markets manipulation case alleging manipulation through “spoofing” of U.S. Treasury futures. This matter is important in that it seeks to curb manipulative and abusive practices by dominant financial institutions and make Treasury futures markets more efficient.

 

• In re Commodity Exchange, Inc., Gold Futures and Options Trading Litigation, No. 14-md-02548 (S.D.N.Y.).  Counsel for plaintiff on behalf of gold purchasers in a market manipulation case.  The case has already resulted in partial settlements of $60 million.

 

• In re Crude Oil Commodity Futures Litigation, No. 11-cv-03600 (S.D.N.Y.).  Class counsel on behalf of WTI crude oil futures purchasers in a market manipulation case.  The case resulted in a settlement of $16.5 million.

 

• In re North Sea Brent Crude Oil Futures Litigation, No. 13-md-02475 (S.D.N.Y.).  Sole lead counsel on behalf of a proposed class of Brent crude oil futures traders alleging benchmark manipulation.

 

• In re Reformulated Gasoline (RFG) Antitrust and Patent Litigation and Related Actions, No. 05-cv-01671 (C.D. Cal).  Co-lead counsel in an antitrust class action pertaining to Unocal’s alleged manipulation of the standard-setting process for low-emissions reformulated gasoline in California, which plaintiffs claim caused inflated retail prices.  KM obtained a $48 million settlement for indirect purchasers.

 

• CFTC v. Shak, No. 14-cv-01632 (D.D.C.).  Representation of a defendant in a case brought by the CFTC under the Commodity Exchange Act’s newest provisions for violations of an administrative order in the gold futures market.

 

• In re BP Propane Indirect Purchaser Antitrust Litigation, No. 06-cv-03541 (N.D. Ill.).  Co-lead counsel for the propane purchaser class.  KM secured a $15 million settlement.

 

• In re Potash Antitrust Litigation, No. 08-cv-06910 (N.D. Ill.).  Member of the leadership group which secured a $13 million settlement for a class of potash purchasers.