The LIBOR scandal is back in the news with Attorney General Eric Schneiderman’s announcement of a $100 million settlement between Barclays and 44 states for artificially manipulating U.S. dollar-LIBOR (“USD-LIBOR”). The August 8, 2016, settlement is the result of a multistate effort led by the Attorneys General of New York and Connecticut.
The investigation found, among other things, that from approximately late August 2007 through at least approximately January 2009, members of Barclays’ management were worried about negative media attention and speculation about Barclays’ liquidity problems and told Barclays’ USD-LIBOR submitters to make submissions that were consistent with the expected rates of other panel banks. This was done notwithstanding the fact that Barclays employees knew that other USD-LIBOR panel banks were making unrealistically low USD-LIBOR submissions. Certain Barclays derivatives traders also made requests for favorable submissions from at least as early as June 2005 until approximately September 2007, and occasionally thereafter through approximately May 2009.
The Barclays settlement will likely be followed by similar settlements with other USD-LIBOR-setting panel banks. Barclays is one of several banks that have been under investigation by the Attorneys General. The settlement agreement applauds Barclays for its cooperation, which has been “extensive and has been of substantial value in furthering the Attorneys General’s investigation.” It also says that the “investigation into the conduct of several other USD-LIBOR- setting panel banks is ongoing.” The Royal Bank of Scotland, Bank of America, Deutsche Bank, Credit Suisse, and JPMorgan Chase are all part of the panel of 16 banks responsible for setting USD-LIBOR.
The LIBOR scandal erupted in June 2012 when Barclays became the first bank to settle with regulators in the United States, United Kingdom and elsewhere for its role in manipulating USD-LIBOR and other benchmark interest rates. The Commodity Futures Trading Commission (CFTC), Department of Justice and U.K. Financial Services Authority (replaced by the Financial Conduct Authority in 2013) required Barclays to pay $200 million, $160 million and £59.5 million in fines, respectively, for attempted manipulation and false reporting of LIBOR.
Litigants taking on LIBOR panel banks will undoubtedly use these regulatory investigations as a road map for conducting discovery. Numerous lawsuits on behalf of companies, individuals and proposed groups of potential victims are pending in the U.S. District Court for the Southern District of New York. The claims include violations of the Sherman Act and the Commodity Exchange Act and fraud.
Other states joining New York in the Barclays settlement include Alabama, Alaska, Arkansas, Arizona, California, Colorado, Connecticut, Delaware, the District of Columbia, Florida, Georgia, Hawaii, Idaho, Illinois, Iowa, Kansas, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, and Wyoming.
The Barclays settlement agreement can be found here.