LIBOR Task Force: Frequently Asked Questions
In re LIBOR-Based Financial Instruments Antitrust Litigation
Where is the consolidated action pending?
In re LIBOR-Based Financial Instruments Antitrust Litigation has been consolidated for pretrial purposes in the Southern District of New York before Judge Naomi Reice Buchwald, Master File No. 1:11-md-2262-NRB.
Judge Buchwald consolidated several actions from around the United States. Since consolidation, several additional class actions have been filed in other districts and have not yet been consolidated.
Who are the defendants in the litigation?
The specific defendants vary among classes but generally include the following members of the U.S. LIBOR Consulting Panel:
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Who are the putative class members?
In general, the complaints in the lead class actions seek to certify a class of persons or entities that:
a) purchased from the defendants financial instruments that were indexed to LIBOR, including but not limited to interest rate swaps (commonly referred to as the Over the Counter or "OTC" claims);
b) transacted in Eurodollar futures contracts and options on futures contracts on the Chicago Mercantile Exchange (commonly referred to as the Exchange-Based claims); or
c) owned a U.S. dollar-denominated debt security on which interest was payable based on the U.S. LIBOR rate and was designated a unique identification number by the CUSIP system (commonly referred to as the Gelboim claims).
See also more Detailed Description below.
What time periods do the putative class action complaints cover?
The time period covered by each of the lead class action complaint varies. Three of the lead complaints assert a time period commencing in August 2007. Most of the complaints assert that the conspiracy ended sometime in 2010, although one asserts an end date of February 2009. Other complaints allege a class period extending into 2012. Recent filings suggest that the conspiracy only ended in October 2011, after the European Commission raided banks in connection with its LIBOR probe.
Can you provide a more detailed description of the most significant class action complaints?
The following chart discusses each of the lead cases and the recently consolidated Community Trust action.
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Plaintiffs |
Putative Class |
Time Period |
Claims Asserted |
Prayer |
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OTC Plaintiffs: Mayor and City Council of Baltimore and City of New Britain Firefighter's and Police Benefit Fund |
Persons or entities who purchased from the defendants financial instruments that were indexed to LIBOR, including but not limited to interest rate swaps |
August 9, 2007 through at least February 2009 |
Section 1 of the Sherman Act (15 U.S.C. § 1) and unjust enrichment |
Treble damages and costs of suit |
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Exchange-Based Plaintiffs: Metzler Investment GmbH, FTC Futures Fund entities, Atlantic Trading USA, Gary Francis and Nathanial Haynes |
Persons and entities who transacted in Eurodollar futures contracts and options on futures contracts on the Chicago Mercantile Exchange |
August 2007 to May 2010 |
Section 1 of the Sherman Act (15 U.S.C. § 1), the Commodity Exchange Act (7 U.S.C. §§ 2, 25), and restitution/disgorgement/unjust enrichment |
Actual damages and prejudgment interest, treble damages under federal antitrust laws, unjust enrichment, constructive trust and costs of suit |
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Gelboim: Ellen Gelboim and Linda Zacher |
Persons or entities who owned a U.S. dollar-denominated debt security on which interest was payable based on the U.S. LIBOR rate and was designated a unique identification number by the CUSIP system |
August 2007 to May 2010 |
Section 1 of the Sherman Act (15 U.S.C. § 1) |
Actual damages and prejudgment interest, treble damages under federal antitrust laws, unjust enrichment, constructive trust and costs of suit |
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Community Trust: Community Bank & Trust |
Community banks with under $1 billion in total assets that issued loans in which the interest rates were tied to the US LIBOR rate and that suffered losses |
August 2006 and May 2010 |
RICO, 18 U.S.C. §§1962 (c) and (d), WOCCA, Wis. Stat 946.80 (state RICO) |
Compensatory and/or recessionary damages, interest, costs and expenses
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Recent putative class action complaints of interest include:
a) Vladimir Gusinsky, Trustee for the Vladimir Gusinsky Living Trust v. Barclays PLC, which asserts securities claims under Rule 10b-5 and Section 20(a) of the Exchange Act and seeks to certify a class of investors who purchased Barclay's sponsored American Depository receipts between July 10, 2007 and June 27, 2012.
b) The Berkshire Bank et. Al v. Bank of America Corporation et al as amended, which asserts fraud claims on behalf of a putative class of banks, savings & loan institutions and credit unions headquartered in the states or territories of the United States that originated loans, purchased whole loans or purchased interest in loans with interest rates tied to U.S. LIBOR between August 1, 2007 and May 31, 2010. The original Complaint identified a putative class that encompassed only those institutions headquartered in, or with a majority of their operations in, New York. The amended complaint asserts subclasses for each State and Territory.
c) 33-35 Green Pond Road Associates v. Bank of America Corporation, which asserts a Sherman Act Section 1 price-fixing claim against the panel banks on behalf of individual investors who purchased LIBOR-based derivatives from a group of 23 non-defendant banks in OTC transactions. The non-defendant banks include Wells Fargo & Company; Goldman Sachs Group, Inc.; Morgan Stanley; MetLife, Inc.; U.S. Bancorp; The PNC Financial Services Group Inc.; The Bank of New York Mellon Corporation; Capital One Financial Corporation; Ally Financial Inc.; SunTrust Banks, Inc.; BB&T Corporation; TD Bank US Holding Company; State Street Corporation; Citizens Financial Group, Inc.; American Express Company; Regions Financial Corporation; Fifth Third Bancorp; KeyCorp Cleveland; UnionBanCal Corporation; Northern Trust Corporation; BancWest Corporation; M&T Bank Corporation; Harris Financial Corporation; and BBVA USA Bancshares. Inc.
d) Adams v. Bank of America Corporation et al, which asserts claims on behalf of a nationwide debtor/borrower class comprised of individuals who entered into adjustable rate mortgages indexed to LIBOR that were then bundled into a securitized pool and sold on the open market. The complaint asserts that class members suffered from higher (not lower) interest rates and asserts a class period from January 1, 2000-2009. The claims include Federal and State (New York) price-fixing, RICO, Unjust Enrichment, Restitution, declaratory judgment, breach of contract, and tortious interference.
Can you describe the complaints filed by the Schwab entities or other opt-out plaintiffs?
The Schwab plaintiffs filed three separate actions on behalf of The Charles Schwab Corporation, Schwab Money Market Funds and Schwab Short-Term Bond Funds. The complaints broadly assert that the Schwab plaintiffs purchased fixed and floating rate notes tied to U.S. LIBOR from defendants and unrelated third parties and allegedly suffered losses from lower interest rates. The amended complaints allege claims for Section 1 of the Sherman Act (15 U.S.C. § 1), Racketeer Influenced and Corrupt Organizations Act (RICO) (18 U.S.C. §§ 1961 et seq.), Cartwright Act (Cal. Bus. & Prof. Code §§16720 et seq.); interference with economic advantage, breach of the implied covenant of good faith, and unjust enrichment (common law claims all under California law). The amended complaints omitted prior claims that the Schwab entities asserted for violation of federal securities laws. The direct claims omit the interference with economic advantage action.
The Schwab plaintiffs’ antitrust and RICO claims were recently dismissed with the Court declining to exercise supplementary jurisdiction over the remaining state law claims. On April 29, 2013 Schwab filed a new complaint in California state court asserting a federal securities act claim as well as allegations of common law fraud, unjust enrichment and unfair business practices.
Are there other opt-out complaints?
a) Federal Home Loan Mortgage Corporation (Freddie Mac) v. Bank of America et al. Freddie Mac filed an action in the Eastern District of Virginia on March 14, 2013 against the British Bankers Association (BBA) and the LIBOR panel banks. The Complaint alleges price fixing under the Sherman Act, Breach of Contract, Fraud and tortious interference. Freddie Mac asserts both a direct claim due to its fixed to variable swap transactions with the panel banks and an indirect claim due to its receipt of lower interest payments from homeowners with whom it held variable rate mortgages.
b) California Public Entities Action. On January 9, 2013 eight California municipalities and public entities filed separate complaints in the Northern District of California against the LIBOR panel bank members. Plaintiffs included the City of Riverside, the City of Richmond, the County of San Mateo and the East Bay Municipal Utility District each of whom allege injury from transactions, generally interest rate swaps, with defendants and other third parties. The claims largely parallel the consolidated Schwab Complaints but omit the RICO claim and add negligent misrepresentation.
c) 7 West 57th Street Realty Company v. Citigroup, Inc. et al. On February 13, 2013 Sheldon H. Solow caused his realty company to file suit against the panel banks. The complaint uniquely asserts that the setting of higher (not lower rates) in a 5 day period in 2008 caused a reduction in the value of plaintiff’s $450 million portfolio of municipal securities. The securities were pledged as collateral on a loan from Citibank and the reduction in value of approximately $100 million triggered a default. The Complaint alleges claims under the Sherman Act, RICO and the Donnelly Act (New York’s state antitrust act).
What is the status of the consolidated litigation?
The lead actions and interim lead counsel have been identified, and amended complaints were filed in late April 2012. Each of the Defendants filed motions to dismiss on June 29, 2012. On April 1, 2013, the Court issued its ruling dismissing the antitrust and RICO claims and narrowing the scope of the Commodities and Exchange Act claim. While initially dismissing the antitrust claims with prejudice, on May 3, 2013 Judge Buchwald granted leave for the plaintiffs to file a motion to amend the complaint to add allegations of antitrust injury. Her order reflected skepticism that such a Motion would ultimately be granted. If not, plaintiffs would then likely appeal the ruling to the Second Circuit. Pending resolution of the motion, all actions other than those which are the subject of the motions to dismiss have been stayed.
What is the magnitude of the losses?
The injury to any particular investor will of course depend upon the nature, duration and timing of each individual investor's LIBOR-related investments and the results of further investigation into the alleged conspiracy. Preliminary views expressed by plaintiffs, commentators and others vary widely. Economic evidence cited by the plaintiffs reflects a significant variation in U.S. LIBOR from benchmark reference rates such as EURIBOR and the Federal Reserve auction rate. Depending upon the period or point of time under consideration, this evidence suggests a variance of 10 basis points in some cases and 70 basis points in another. A recent report by Macquarie Research used an assumed differential of 0.4%. Another expert has opined that the variance could be 1 percentage point or more.
A separate issue is whether LIBOR-related benefits and injuries must be netted for purposes of assessing damages. In other words will investors who paid lower interest rates as a result of the LIBOR scandal be required to offset those benefits against the losses from other LIBOR-related investment instruments. The answer to that question has sometimes been assumed but will again depend upon the nature of the investor's investment portfolio (including the identity of each specific investor/borrower within the enterprise), the nature of the claims asserted, and the investor's relationship with the Contributor Banks.
