Antitrust Law Daily Wrap Up, ANTITRUST—SDNY: LIBOR Plaintiffs Permitted to Offer Amended Allegations of Antitrust Injury, (May 15, 2013)

By William Zale, J.D.

Holders of bonds and other financial instruments may move for leave to add allegations relevant to antitrust injury to their amended complaints in multidistrict litigation against member banks of the British Bankers’ Association (BBA) dollar-based London Interbank Offer Rate (USD LIBOR) Panel for conspiring to artificially suppress LIBOR by understating their borrowing costs to the BBA, the federal district court in New York City has ruled (In re: LIBOR-Based Financial Instruments Antitrust Litigation, May 3, 2013, Buchwald, N.).

The court was inclined to think that none of the proposed allegations would change the outcome reached in its Memorandum and Order of March 29, 2013 dismissing the plaintiffs’ antitrust claims. More than a year after the original complaints began to be filed on April 15, 2011, the plaintiffs filed amended complaints on April 30, 2012. Although the court denied the plaintiffs' request to file second amended complaints at a conference on August 8, 2012, the court permitted the plaintiffs to rely on the Barclays settlement documents in opposing motions to dismiss. The plaintiffs were thereby able to achieve a substantial part of what they originally intended to achieve through a second amended complaint, according to the court.

The court noted that the plaintiffs had long been on notice that antitrust injury would be an important issue in this case. Yet, the plaintiffs never specifically argued, until after the March 29 Memorandum and Order, that they would be able to satisfy the requirements for antitrust injury through additional allegations in a second amended complaint.

Nevertheless, given the obvious magnitude of the litigation, the court observed that it intended to proceed deliberately in evaluating plaintiffs' request. The court gave the plaintiffs two weeks to move for leave to amend their amended complaints to add allegations relevant to antitrust injury, any such motion to be accompanied by a proposed second amended complaint. The court said that it would not require the defendants to respond to any motion for leave to amend until it had had an opportunity to review the motion and had determined that a response is necessary.

The case is No. 11 MD 2262 (NRB).

Attorneys: Daniel Hume (Kirby McInerney LLP) for FTC Capital GMBH. Arun Srinivas Subramanian (Susman Godfrey LLP) for Mayor and City Council of Baltimore. Brendan Patrick Glaskin (Lieff, Cabraser, Heimann & Bernstein LLP) for Schwab Short-Term Bond Market Fund. Arthur J. Burke (Davis Polk & Wardwell) for Bank of America Corp. Alanna Cyreeta Rutherford (Boies, Schiller & Flexner, LLP) for Barclays Bank PLC. Alan M. Wiseman (Covington & Burling, LLP) for Citibank NA. Elai E. Katz (Cahill Gordon & Reindel LLP) for Credit Suisse Group AG. Andrew Corydon Finch (Paul Weiss Rifkind Wharton & Garrison LLP) for Deutsche Bank AG. Edwin R Deyoung (Locke Lord Bissell & Liddell LLP) for HSBC Holdings PLC. Dana Ashley Jupiter (Simpson Thacher & Bartlett) for J.P. Morgan Chase & Co. Eric Jonathan Stock (Hogan Lovells US LLP) for Lloyds Banking Group PLC. David Robert Gelfand (Milbank, Tweed, Hadley & McCloy LLP) for Rabobank Group. Robert G. Houck (Clifford Chance US, LLP) for Royal Bank of Scotland Group PLC. Andrew W. Stern (Sidley Austin LLP) for The Norinchukin Bank. Christopher Michael Viapiano (Sullivan & Cromwell LLP) for Bank of Tokyo-Mitsubishi UFJ Ltd. Peter Sullivan (Gibson, Dunn & Crutcher, LLP) for UBS AG. Christopher Martin Paparella (Hughes Hubbard & Reed LLP) for WestLB AG.

Companies: FTC Capital GMBH; Bank of America Corp.; Barclays Bank PLC.; Citibank NA; Credit Suisse Group AG; Deutsche Bank AG; HSBC Holdings PLC; J.P. Morgan Chase & Co.; Lloyds Banking Group PLC; Royal Bank of Scotland Group PLC; The Norinchukin Bank; UBS AG; WestLB AG

Cases: Antitrust NewYorkNews