Banks Move to Dismiss LIBOR Antitrust Class Action

The Amended Complaints do not state a claim under the antitrust laws. At most, Plaintiffs accuse Defendants of making false reports for their own purposes to a trade association regarding the rates at which they believed they could borrow money in London. Those reports allegedly affected a widely used interest rate index calculated daily and made public by the association. It is of course a mathematical truism that the published index would have been different if higher or lower rates had been reported by a sufficient number of banks. That might impact financial results to those who chose to incorporate the index in their transactions, but that is not a restraint of trade. The Amended Complaints fail to show how any of what they allege would have restricted competition among Defendants or anyone else. . . . . First, the Amended Complaints do not adequately plead joint action by competitors to restrain competition in some market. The Amended Complaints are devoid of any direct factual allegations of an actual agreement among Defendants to suppress USD LIBOR throughout the Class Period. Nor do the Amended Complaints allege any facts from which such an agreement could be inferred. Plaintiffs allege only that USD LIBOR for some period was lower than their experts believe it should have been, from which they infer that Defendants’ submissions were artificially low. Even if true, such allegations do not support an inference of collective action by all Defendants to suppress USD LIBOR over the course of several years. Plaintiffs themselves cite as the primary motive for the alleged false reports a desire by Defendants to hide their supposed financial weakness from each other and the public, which would naturally call for circumspection by such banks, not discussion and agreement among them. Plaintiffs’ own allegations thus suggest independent, rather than collective, action and fail to meet the Twombly standard for plausibly alleging an antitrust conspiracy. Second, even if there were sufficient allegations of concerted action to satisfy the Twombly test, Plaintiffs do not allege any conduct that would constitute a “restraint of trade” in violation of section 1 of the Sherman Act. Plaintiffs’ claims are aimed at alleged false reporting in connection with a BBA survey. Such false reporting in and of itself is not alleged to be, and plainly is not, a competitive act, and does not restrain trade in any market. There are no buyers or sellers, no market, no profit, and no competition of any kind associated with the mere reporting of rates or setting of USD LIBOR. Defendants do compete for the provision of loans and other financial products, some of which are indexed to USD LIBOR, but Plaintiffs do not allege any reduction in competition in connection with any loans or other financial products. And contrary to Plaintiffs’ suggestions, USD LIBOR is not a “price” of anything; it is an index, a composite derived from the BBA’s survey of the panel banks. Market participants are free to make use of or disregard USD LIBOR as they see fit when negotiating rates for new transactions.