When A Relationship Is Insufficient: Opting Out Of The FX Antitrust Class Action Requires Clear Indication

On May 28, 2020, Judge Lorna G. Schofield of the United Stated District Court for the Southern District of New York issued her Opinion and Order in Allianz Global Inv'rs GMBH v. Bank of Am. Corp., No. 18 Civ. 10364 (LGS), 2020 U.S. Dist. LEXIS 93670 (S.D.N.Y. May 28, 2020) ("FX Opt-Outs Action").  Defendants have recently requested certification of the Court's May 28, 2020 order for interlocutory appeal with respect to whether foreign Plaintiffs are barred from bringing suit under the U.S. antitrust laws based on transactions with U.S. trading desks by the Foreign Trade Antitrust Improvements Act (the "FTAIA").  As set forth in Defendants' letter to the District Court last week, to the extent these foreign Plaintiffs' antitrust claims are barred by the FTAIA, Defendants believe these Plaintiffs' common law unjust enrichment claims will also fail as preempted by Congress.  But the FTAIA question is not the only interesting issue raised by the District Court's decision,