The Swiss Competition regulator, COMCO, has fined banks for manipulation of the Swiss Franc LIBOR rate[1] and for acting as a cartel in EURIBOR rates[2].
EURIBOR
COMCO includes the following in its press release:
“COMCO reached the conclusion that between September 2005 and May 2008 several banks participated, for different durations, in a cartel in interest rate derivatives in euro. Four of these banks (Barclays, Deutsche Bank, Royal Bank of Scotland [RBS] and Société Générale) signed an amicable settlement, approved by the COMCO on December 5, 2016. Barclays and Deutsche Bank participated in the cartel for 32 months, Société Générale for 26 months and RBS for 8 months. COMCO imposed total fines of approximately CHF 45.3 million. Deutsche Bank received full immunity for revealing the existence of the cartel to the COMCO. The other banks involved received reductions of their respective fines for cooperating with the investigation under the leniency programme. The individual fines amount to CHF 29.772 million for Barclays, CHF 12.332 million for RBS and CHF 3.254 million for Société Générale. The proceeding continues against BNP Paribas, Crédit Agricole, HSBC, JPMorgan and Rabobank.”
The fines are in addition to the fines from the EU for acting in a cartel in regards to this LIBOR rate[3] and the FCA fine imposed on Barclays[4], Deutsche bank[5] and Rabobank[6]. LIBOR & EURIBOR fines in the UK by the FCA totalled £757 million as at 22/04/2016[7].
Swiss Franc
The COMCO Press Release had this to say:
“The Competition Commission (COMCO) has closed its investigation related to the Swiss franc LIBOR benchmark with an amicable settlement and imposes total fines of approximately CHF 33.9 million.
“COMCO reached the conclusion that the two international banks JPMorgan and Royal Bank of Scotland (RBS) operated, between March 2008 and July 2009, a bilateral cartel with the aim of influencing the Swiss franc LIBOR benchmark. Both banks signed an amicable settlement, approved by the COMCO on December 14, 2016. RBS received full immunity for revealing the existence of the cartel to the COMCO. JPMorgan was fined CHF 33.873 million after receiving a reduction of its fine for the cooperation in the investigation under the leniency programme. Simultaneously, the COMCO decided to discontinue the procedure against the two Swiss Interdealer/Cash Broker Cosmorex and Gottex Brokers. With these two decisions, the procedure Swiss franc LIBOR is terminated.”
RBS was previously fined £87.5 million by the FCA & £300 million by the US regulators and DOJ for manipulation of the Swiss Franc LIBOR rate[8].
LIBOR Manipulation
Since Barclays received the first LIBOR fine in 2012 there have been a series of LIBOR claims issued in Court. Lloyds Banking Group (as it is now known) and Deutsche Bank have been fined for manipulating GBP Sterling LIBOR. (Deutsche Bank was given the largest fine because it manipulated LIBOR over all major currencies[9]).
Three cases went through the Courts and judgments have been handed down. The first and probably the most well-known was the case known as “Guardian Care Homes” but is a case actually cited as Graiseley Properties Ltd v Barclays Bank plc [2012] EWHC 3093 (Comm). A preliminary hearing ruled that they could pursue their claim against Barclays despite Barclays having not been fined as at that date for manipulating GBP Sterling LIBOR. Barclays appealed this to the Court of Appeal. At the same time a High Court Judge rejected a similar claim against Deutsche Bank [10] and both were joined together for an appeal[11]. The appeal was successful. It appears that both cases settled out of Court as neither came to trial. In the Graiseley case employees at Barclays applied to the High Court to have their names censored from the case. This was rejected due to “Open Justice” and the case appears to have settled not too long after this.
No cases against Lloyds have been reported. It is likely that the Lloyds Banking Group (on behalf of Lloyds Bank, HBOS and Bank of Scotland) have settled all LIBOR manipulation cases involving GBP Sterling LIBOR.
RBS appears to be allowing its LIBOR manipulation cases to go to trial. The case of Property Alliance Group Ltd (“PAG”) v Royal Bank of Scotland Plc appears to be having judgment handed down today (21/12/2016). We will provide an article reviewing this judgment if it has been handed down.
The next case that is likely to be heard will be Hockin v Royal Bank of Scotland plc. It was due to start trial in early January 2017, but it appears to have been stayed. Please see our article about these cases HERE and about the Court of Appeal IRHP cases HERE.
The Future
It is likely that cases involving LIBOR manipulation regarding LIBOR products entered into whilst Lloyds, HBOS, Bank of Scotland and Deutsche Bank were actively manipulating GBP Sterling LIBOR will have a good chance of success is the product is GBP LIBOR (so long as they were entered into during the period of manipulation). Claims against other banks over GBP LIBOR products will be very difficult, and will almost certainly be impacted by the decisions in PAG and Hockin.
It will be interesting to see how the Banks deal with none GBP Sterling LIBOR products where the banks have been fined for manipulation. EURIBOR, Swiss Franc and US Dollars are likely to be involved in claims over the next few years.
Muldoon Britton is actively looking at US Dollar, Swiss Franc (“CHF”) LIBOR and Euriobor manipulation cases in addition to GBP sterling LIBOR cases. If you would like to discuss such a case, please contact us today for a no obligations discussion.
Resources:
[1] COMCO Press Release 21/12/2016
https://www.weko.admin.ch/weko/en/home/latest-news/press-releases/nsb-news.msg-id-65050.html
[2] COMCO Press Release 21/12/2016
https://www.weko.admin.ch/weko/en/home/latest-news/press-releases/nsb-news.msg-id-65052.html
[3] EU Commission press release 04/12/2013 “Antitrust: Commission fines banks € 1.49 billion for participating in cartels in the interest rate derivatives industry”
http://europa.eu/rapid/press-release_IP-13-1208_en.htm
[4] FCA Fine 22/03/2013 Press Release “Barclays fined £59.5 million for significant failings in relation to LIBOR and EURIBOR”
[5] FCA Fine 24/04/2015 “Deutsche Bank fined £227 million by Financial Conduct Authority for LIBOR and EURIBOR failings and for misleading the regulator”
[6] FCA Fine 29/10/2013 Press Release “The FCA fines Rabobank £105 million for serious LIBOR-related misconduct”
[7] FCA notice on enforcement regarding benchmarks 22/04/2016 “Benchmark enforcement”
https://www.fca.org.uk/markets/benchmarks/enforcement
[8] FCA Press Release RBS Fine 29/03/2013 “RBS fined £87.5 million for significant failings in relation to LIBOR”
[9] FCA Final Notice Deutsche Bank 23 April 2015
https://www.fca.org.uk/publication/final-notices/deutsche-bank-ag-2015.pdf
[10] Deutsche Bank AG v Unitech Global Ltd [2013] EWHC 471 (Comm)
[11] Conjoined, but the lead case was the unitech case so is correctly referred to as Deutsche Bank AG v Unitech Global Ltd [2013] EWCA Civ 1372 but can be referred to as Graiseley Properties Limited & Ors v Barclays Bank plc [2013] EWCA Civ 137
