Libor Decision: Wall Street Has a Fairy Godmother

By Pam Martens: April 1, 2013

If you’re a citizen residing in the Southern District of New York, be aware that if you break the law you are likely to land in prison. On the other hand, if you’re a too big to jail Wall Street bank, chances are quite good that you’ll walk.

In 2010, Judge Naomi Reice Buchwald sentenced former New York State Assemblyman Tony Seminerio to six years in prison for shaking down hospital officials in his district in a $1 million scheme to collect consulting fees for work his office should have provided at no charge. In 2011, Seminerio died in prison at age 75.

This past Friday, heading into the Easter holiday weekend when the public’s focus is elsewhere, Judge Buchwald handed down 161 pages of a tortured decision that twisted both logic and law into a pretzel in order to arrive at the bizarre finding that collusion and rigging of interest rates in the London Interbank Offered Rate (Libor) benchmark index is not an antitrust matter that civil plaintiffs can sustain in her courtroom. Buchwald threw out the claims, bowing to the request by Wall Street firms for a dismissal of the charges.

Seminerio’s crime involved $1 million. Wall Street’s Libor crimes involve trillions of dollars in interest rate contracts used in the looting of cities and municipalities across America as well as illegal trading.  The U.S. Justice Department has had the case for five years without bringing a single charge against a U.S. based firm. Three foreign firms (Barclays, UBS and RBS) have been allowed to settle their charges for monetary fines.

In Friday’s court decision, which allowed some non antitrust and non racketeering charges to proceed, Judge Buchwald said: “These motions raise numerous issues of law, issues that, although they require serious legal analysis, may be resolved without heavy engagement with the facts…” 

Facts are just so yesterday in the Southern District of New York. The Judge went on to explain: 

“Although these allegations might suggest that defendants fixed prices and thereby harmed plaintiffs, they do not suggest that the harm plaintiffs suffered resulted from any anticompetitive aspect of defendants’ conduct. As plaintiffs rightly acknowledged at oral argument, the process of setting LIBOR was never intended to be competitive…Rather, it was a cooperative endeavor wherein otherwise competing banks agreed to submit estimates of their borrowing costs to the BBA [British Bankers’ Association] each day to facilitate the BBA’s calculation of an interest rate index. Thus, even if we were to credit plaintiffs’ allegations that defendants subverted this cooperative process by conspiring to submit artificial estimates instead of estimates made in good faith, it would not follow that plaintiffs have suffered antitrust injury. Plaintiffs’ injury would have resulted from defendants’ misrepresentation, not from harm to competition.” 

As of March 28, 2013, the Federal Deposit Insurance Corporation lists a total of 7,040 FDIC insured banks in the U.S.  Only a handful of those were secretly engaged in collusion to rig Libor interest rates — which gave that handful the secret knowledge of where rates would be announced. That advance information was then used to engage in insider trading on interest rate swaps in both the over-the-counter market (OTC) and in derivative products traded on exchanges. 

We know all of this beyond a shadow of a doubt because regulators on both sides of the Atlantic have released the colluding emails between the traders at the various banks. 

The 7,000 banks that did not know Libor was being rigged could not profit from the insider trades the other banks were making. Thus their profits were lower and they had less market advantage. The cities and municipalities engaging in interest rate swaps with the colluding banks  also did not know that the Libor rate to which their cash flow was being pegged was being rigged lower. It would appear to be a slam dunk antitrust case. The Judge herself concedes the following definition of antitrust law in her decision: 

“Section 1 of the Sherman Act provides: ‘Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.’ 15 U.S.C. § 1 (2006). The private right of action to enforce this provision is established in section 4 of the Clayton Act: ‘Except as provided in subsection (b) of this section [relating to the amount of damages recoverable by foreign states and instrumentalities of foreign states], any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee.’ ” 

So why did this Southern District of New York Judge dismiss the antitrust and RICO claims of the plaintiffs? This morning, there are more than a few Wall Street watchers speculating that any claim that could possibly result in treble damages against Wall Street will never see the light of day in a Southern District of New York court. 

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