Private litigation over alleged manipulation of the London InterBank Offered Rate has been on very shaky ground since last March, when a federal judge in New York gutted a series of consolidated antitrust cases over the benchmark interest rate. But a different group of plaintiffs got some welcome news on Friday, when an appeals court revived part of a securities class action targeting Barclays plc for its role in the Libor mess.
In a 22-page decision, the U.S. Court of Appeals for the Second Circuit reinstated claims that Barclays duped investors about the value of its American Depository Shares, which tumbled amid revelations that the bank misrepresented its financial health and borrowing costs through inaccurate Libor submissions. Plaintiffs lawyers at Robins Geller Rudman & Dowd and Wolf Haldenstein Adler Freeman & Herz brought the case in July 2012, one month after Barclays admitted to submitting false Libor rates in a $467 million settlement with U.S. and U.K. authorities.
The Second Circuit panel didn’t resurrect the plaintiffs’ case entirely, however. The court agreed with U.S. District Judge Shira Scheindlin’s decision to toss allegations that Barclays misled the Securities and Exchange Commission for five years about its internal risk controls.
Scheindlin dismissed the case with prejudice back in May 2013, handing a win to defense counsel at Sullivan & Cromwell; Boies, Schiller & Flexner; and Dechert. She concluded that Barclays’ alleged misrepresentations to the SEC amounted to mere “puffery.” And she ruled that the plaintiffs couldn’t attribute their losses to Barclays’ Libor submissions or to statements by ex-CEO Robert Diamond, because market forces would have negated their impact by the time the Libor scandal broke.
According to Friday’s decision, Scheindlin flubbed her ruling on loss causation by discounting evidence that Barclays’ 2012 settlement disclosures forced a true correction in the bank’s share price, notwithstanding the market’s efficiency. “Whether the effects of Barclays’ willfully false LIBOR representations dissipated before June 2012 is a question of fact that can be answered only upon a more fully developed record,” the panel wrote.
A Barclays spokesman declined to comment on the ruling. Jeffery Scott of Sullivan & Cromwell argued for the bank at the Second Circuit. Dechert’s Cheryl Krause argued for ex-CEO Diamond. Barclays is also represented by S&C’s David Braff and by Jonathan Schiller of Boies Schiller.
Susan Alexander of Robbins Geller argued for the plaintiffs. She wasn’t immediately available to comment on Friday.