An Insight Special on Banking Litigation INSIGHT: BANKING LITIGATION

Hunting titans An Insight special on banking litigation INSIGHT: BANKING LITIGATION Hunting titans As banks remain in the crosshairs of regulators and claimants, Legal Business teamed up with Stephenson Harwood to seek the views of the in-house banking community on attitudes to disputes and risk RICHARD LLOYD f you needed confirmation of just how Business worked with Stephenson Harwood challenging the litigation climate is for to canvass in-house lawyers at the major many of the world’s banks, then JPMorgan banks. We wanted to assess a range of topics, Chase’s results for the third quarter including how the volume and sources of provided it, in all their billion-dollar detail. litigation have varied in the last five years; IAnnouncing a $400m loss for Q3 in October, how banks’ litigation spend has changed; the bank revealed that it had set aside $23bn their approach to bringing cases against other for litigation costs arising from a series of banks; their views on arbitration and third- regulatory investigations, resulting litigation party litigation funding; and their approach and economic crisis-related suits. to selecting outside lawyers, gathering ‘We continuously evaluate our legal responses from more than 100 senior banking reserve but in this highly charged and in-house counsel. unpredictable environment, with escalating To many, both inside and outside of the demands and penalties from multiple banks, the shift in environment has been government agencies, we thought it was profound. ‘It’s changed in an unrecognisable prudent to significantly strengthen them,’ way,’ admits one head of litigation at a commented JPMorgan’s chief executive leading bank. ‘It’s been driven by so many Jamie Dimon in a statement. By way of regulatory investigations and you now have comparison, the bank’s litigation fund so many regulatory agencies competing to stood at $3bn in 2010. issue the biggest, baddest fines.’ Although JPMorgan is one of several ‘There’s been a remarkable shift in the international finance houses to face mounting way that people view banks in the last five legal costs its travails, in particular, reflect or six years,’ asserts Mark Howard QC, a the challenges facing the banking sector. barrister at Brick Court Chambers. ‘Before Today’s bank executives and senior in- the economic crisis, most people started from house counsel face a complex web of the point that banks were straightforward investigations fuelling claims arising out of and honest but now the whole climate has the financial crisis and more recent scandals, changed. Banks’ reputations have been new regulatory oversight and tougher tarnished, not only in the eyes of the public laws proposed by the likes of the Financial and the press, but also in the eyes of judges.’ Services (Banking Reform) Bill in the UK and With cases coming to light over the Dodd-Frank in the US. London Inter-Bank Offered Rate (Libor) To assess how this new environment scandal, and more expected from the is affecting the finance community, Legal brewing investigation into foreign u 46 Legal Business December 2013/January 2014 Illustration MILES COLE LEGAL BUSINESS AND STEPHENSON HARWOOD INSIGHT: BANKING LITIGATION GROWING SOME TEETH – REGULATION IN THE POST-LEHMAN WORLD If the world’s major financial regulators could be faulted for failing to spot Frank Act that enhanced its regulatory arsenal. As a result, in the last two and prevent much of the fallout from the banking crisis, it’s fair to say that years the CFTC has opened a record 800 investigations and in 2012 obtained ever since the 2008 collapse of Lehman Brothers they have been attempting orders imposing more than $931m in sanctions. to redress the balance. The regulatory landscape that financial services In New York the new Department of Financial Services (DFS), formed in 2011 firms face has never been more challenging. As Margaret Cole, the former to improve oversight of the Empire State’s numerous financial institutions, head of enforcement at the Financial Services Authority (FSA) and now has also hit the headlines for its regulatory zealotry. In August 2012, before general counsel (GC) at PwC, recently told Legal Business, the regulatory federal authorities could reveal their hand, the DFS announced allegations that framework that impacts the business in-house lawyers work in will get Standard Chartered had been involved in facilitating hundreds of billions of tougher. According to one respondent: ‘History suggests that there are more dollars’ worth of deals for Iran, in contravention of US sanctions. The UK-based regulators now that can trace an institution’s past actions, so it’s obviously a bank was ultimately fined $340m by the New York watchdog on top of a $100m more combative environment now than before.’ fine from the Federal Reserve and a $227m penalty from the DoJ. Our survey asked several questions relating to the regulatory environment For regulatory investigations and litigation to arise directly out of the that banks now operate in and the responses economic crisis, such as over the selling of largely highlighted the far tougher approach poor quality mortgage securities, was not from watchdogs. Just over three-quarters of surprising. A cause for greater concern in the respondents said that the regulatory climate banking community, however, has been the had become more combative in the last three number of investigations to emerge that are years, with 61% saying that they are seeing largely unrelated to the crisis, such as Libor more litigation as a result. and the unfolding scandal around foreign Banks are quickly becoming accustomed to exchange rates. a new regulatory structure in both the UK and ‘I don’t think there’s a single reason overseas, most notably in the US. Given that why we’re seeing more activity, there’s the successors to the UK’s FSA – the Financial simply a lot more scrutiny of the industry Conduct Authority (FCA), the Prudential than before,’ comments William Sweet, Regulation Authority and the Bank of © REX/Sipa Press head of Skadden, Arps, Slate, Meagher England’s Financial Policy Committee – were & Flom’s financial institutions regulation only formed in April 2013, the market is still and enforcement group. Plus there’s been coming to terms with how the new regulatory structure will work in practice. a notable shift at the head of America’s flagship markets regulator, the However, the scandal over the manipulation of Libor, a key financial market Securities and Exchange Commission (SEC). indicator based on the rate at which banks are prepared to lend to one another, Since she took over as head of the SEC, Mary Jo White has indicated that has certainly given the FCA an early opportunity to prove its regulatory mettle. she is prepared to get tougher on the financial industry than some of her In October, the watchdog announced that it had fined the Dutch financial predecessors. As a former Debevoise & Plimpton litigation partner and before institution Rabobank £105m for Libor-related misconduct. That fine was the that as US Attorney for the Southern District of New York, she might have been third largest ever issued by the FSA or FCA, and was the fifth penalty levied by expected to bring a litigator’s zeal to enforcement when she picked up the UK regulators as part of the ongoing investigation (prior to its abolition the FSA reins at the SEC in April 2013. Where she has proved particularly aggressive is announced fines against Barclays, UBS and The Royal Bank of Scotland). in questioning whether banks should routinely be allowed to neither admit nor In a release announcing Rabobank’s fine, Tracey McDermott, the FCA’s deny wrongdoing in settling with the Wall Street regulator. director of enforcement and financial crime, commented: ‘Firms should be in In a speech she gave in September, White suggested that in many cases no doubt that the spotlight will remain on wholesale conduct and we will hold a no-admit-no-deny approach was still best, but she added: ‘Sometimes them to account if they fail to meet our standards.’ more may be required for a resolution to be, and to be viewed as, a sufficient The Libor scandal has also showcased the increased co-operation punishment and strong deterrent message.’ between international regulators, a trend which has been evident for several That change of tack is clearly resonating with the litigation Bar in the US. years. In its investigation into Rabobank, the FCA worked closely with ‘Mary Jo White has definitely sent a message that she’s going to be more regulators in the Netherlands and Japan as well as the Department of Justice aggressive. But it will take more time for the implications of that to shake out (DoJ) and Commodity Futures Trading Commission (CFTC) in the US. – whether it will mean more enforcement actions, more stringent settlement One of the features of the new tougher climate in the States has been the demands and penalties, more trials, or different enforcement priorities,’ emergence of newly empowered regulatory bodies such as the CFTC. For a insists Stephen Ascher, co-chair of Jenner & Block’s securities litigation long time seen as a fairly sleepy overseer with few enforcement powers, the and enforcement practice. More time under a regulatory cloud like this is Commission has been reinvigorated, in part thanks to provisions in the Dodd- something that most banks would undoubtedly prefer to avoid. 9GNGFVJGUWEEGUUHWNCRRNKECVKQPHQTLWFKEKCNTGXKGYDTQWIJVD9GNGFVJGUWEEGUUHWNCRRNKECVKQPHQTLWFKEKCNTGXKGYDTQWIJVD[4[4CYCYNKPUQP*WPVGTVTWUVGGUNKPUQP*WPVGTVTWUVGGU

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