Source: Law360 | Author: Bonnie Eslinger
Law360, Los Angeles (July 11, 2017, 9:09 PM EDT) — Banking giants UBS AG and HSBC Bank USA NA have each agreed to pay $14 million to settle class action claims that they participated in a conspiracy with other banks to manipulate a benchmark interest rate used to set terms for swaps transactions.
The agreements totaling $28 million come in the wake of major settlements in the litigation reached last year, including $324 million from seven banks including Bank of America Corp., Citigroup Inc. and JPMorgan Chase & Co., and a $56.5 million settlement reached with Goldman Sachs. In their suit, the investor plaintiffs accuse the banks and interbank broker ICAP Capital Markets LLC of having rigged the ISDAfix benchmark rate, which determines valuations for interest-rate derivative products.
Under the deals struck with UBS and HSBC, the banks will provide the investors with cash payments totaling $28 million, but also “valuable confirmatory discovery, which will assist plaintiffs in the prosecution of the non-settling defendants,” according to a motion for approval submitted to the court by the investors on Tuesday. Similar obligations were included in the agreements with the other banks.
The information the investors will receive includes transaction data involving ISDAfix instruments and up to three witness interviews of current employees at HSBC and UBS relating to the suit’s alleged conduct, according to Tuesday’s settlement motion.
Daniel Brockett of Quinn Emanuel Urquhart & Sullivan LLP, an attorney for the nationwide class, told Law360 on Tuesday that the class and its counsel are pleased to see another $28 million added to the settlement pool.
The UBS and HSBC settlements bring the total recovery to over $408 million for the class, said the investors co-lead counsel, David Scott of Scott+Scott LLP.
“Equally important, however, such settlements ensure that important benchmarks like ISDAfix, which play a vital role in supporting pension funds and public entities, remain free of manipulation,” Scott said in a written statement.
Five defendants still remain in the litigation, according to Brockett: Morgan Stanley & Co. LLC, BNP Paribas SA, Wells Fargo Bank NA, Nomura Securities International Inc. and ICAP Capital Markets LLC.
In April, the plaintiffs asked a New York federal judge to appoint an authority to ensure that Morgan Stanley turns over files ordered by the court.
“Something is fundamentally broken with Morgan Stanley’s approach to discovery in this case,” they wrote. “Plaintiffs can no longer rely on claims of good faith and vague promises as to when documents might be produced. That is why a discovery master or magistrate judge is necessary here, to supervise Morgan Stanley’s document production, at Morgan Stanley’s expense, to break the cycle of over-lawyered responses, dodges and delays that have characterized Morgan Stanley’s approach to this case from the start.”
Morgan Stanley has maintained that it is complying with court orders; its lawyers said that it had not stopped its review and turnover of documents, but simply found that less than 1 percent of the documents that came up when it plugged in the plaintiffs’ search terms were actually responsive to their requests.
According to the plaintiffs, who sued in September 2014, the banks worked closely with interdealer broker ICAP PLC, which until January 2014 was tasked by the International Swaps and Derivatives Association with managing the daily setting of the U.S. dollar-rate version of ISDAfix.
The banks were responsible for submitting rate quotes, which ICAP essentially compiled. But the suit says the parties worked together to set the rate at the point where it was most profitable for them, including engaging in a process known in the industry as “banging the close” where they bought and sold derivative products just before the fix was closed in order to get the price they wanted.
The proposed settlement class includes all persons or entities who “entered into, received or made payments on, settled, terminated, transacted in or held an ISDAfix Instrument” between Jan. 1, 2006, and Jan. 31, 2014.
Representatives for HSBC did not respond to requests for comment Tuesday. UBS declined to comment.
The plaintiffs are represented by Scott+Scott LLP, Quinn Emanuel Urquhart & Sullivan LLP, Robbins Geller Rudman & Dowd LLP, Grant & Eisenhofer PA, Bernstein Liebhard LLP, Berger & Montague PC and McCulley McCluer PLLC.
Morgan Stanley is represented by Morgan Lewis & Bockius LLP. BNP Paribas is represented by Patterson Belknap Webb & Tyler LLP. ICAP is represented by Richards Kibbe & Orbe LLP. UBS is represented by Gibson Dunn. Wells Fargo is represented by Friedman Kaplan Seiler & Adelman LLP.
HSBC is represented by Locke Lord LLP. Nomura is represented by Shearman & Sterling LLP.
The case is Alaska Electrical Pension Fund v. Bank of America Corp. et al., case number 1:14-cv-07126, in the U.S. District Court for the Southern District of New York.
–Additional reporting by Jack Newsham, Evan Weinberger and Eric Kroh. Editing by Philip Shea.