In 2019, Kessler Topaz Meltzer & Check, LLP (“Kessler Topaz”) obtained final approval of settlements obtained in three separate class action lawsuits brought on behalf of investors in American Depository Receipts (“ADRs”) who received cash distributions in connection with certain ADRs for which The Bank of New York Mellon, Citibank, N.A., and JPMorgan Chase Bank, N.A. served as the depositary. On July 17, 2019, Judge J. Paul Oetken granted final approval of the $72.5 million settlement reached with The Bank of New York Mellon; on July 12, 2019, Judge Colleen McMahon granted final approval of the $14.75 million settlement reached with Citibank, N.A.; and on November 22, 2019, Judge Valerie Caproni granted final approval of the $9.5 million settlement reached with JPMorgan Chase Bank, N.A. Kessler Topaz served as lead counsel or co-lead counsel in each of these lawsuits.
The securities at issue in these lawsuits – ADRs – are negotiable U.S. securities representing ownership of publicly-traded shares in foreign companies. ADRs allow their holders to invest in foreign companies without navigating a foreign market. The lawsuits – which asserted claims for breach of contract, breach of implied covenant of good faith and fair dealing, and conversion – alleged that defendants (i.e., the depositaries for the ADRs at issue) systematically deducted impermissible fees for conducting foreign exchange (“FX”) from cash distributions issued by foreign companies and owed to ADR holders. More specifically, the lawsuits alleged that defendants assigned conversion rates to the conversion of non-U.S. dollar-based cash distributions, reflecting a spread that was added to the conversion rate the depositary actually received at the time of the conversion. As a result of this practice, the lawsuits alleged that defendants improperly retained millions of dollars from cash distributions owed and payable to class members.
In total, these lawsuits involved hundreds of foreign issuers, even more unique CUSIPs and, in the lawsuit involving The Bank of New York Mellon in particular, a class period spanning 20+ years. Kessler Topaz actively litigated these complex lawsuits for three years and, prior to settling the lawsuits, performed an exhaustive investigation into the voluminous ADR-related distributions in each case and engaged in substantial motion practice and discovery.
In addition to bringing much needed transparency to FX conversions for ADR distributions, these three lawsuits resulted in meaningful recoveries for ADR investors. In each case, Kessler Topaz was able to secure a recovery representing more than 20% of the class’s alleged damages, and in the lawsuit involving JPMorgan Chase Bank, N.A., nearly 30% of alleged damages. Additionally, in the Citibank, N.A. settlement, Kessler Topaz successfully negotiated for additional injunctive relief, providing, among other things, a twenty basis point limit on Citibank, N.A.’s charges for conducting FX from cash distributions issued by foreign companies (as compared to the average spread of over thirty basis points charged during the class period) – an incalculable ongoing monetary benefit to the class and ADR investors as a whole.
For additional information regarding the settlements, please visit the websites for the settlements at: www.bnymadrfxsettlement.com, www.citibankadrsettlement.com, and jpmorganadrfxsettlement.com.