While the banksters aren’t going down without a fight—they ARE going down. ~ BP
Barclays was accused last night of obstructing an American judicial investigation into whether it operated its “dark pool” trading activities to the disadvantage of its clients and for the benefit of high-frequency traders.
Regulators claim that the bank has defied lawfully issued subpoenas from Eric Schneiderman, the New York attorney-general, seeking depositions under oath from two top executives — William White, its head of electronic trading, and David Johnsen, the head of product development.
“As of today Barclays has still refused to produce these witnesses for deposition. We believe our subpoenas are justified,” a spokesman for Mr Schneiderman said.
January 22, 2015
Barclays Fights Back in Dark Pool Case
Barclays has stepped up its efforts to persuade a US judge to throw out a case brought by the New York attorney-general alleging the British bank misled clients about its secretive “dark pool” private trading venue.
Eric Schneiderman’s office filed an amended complaint against the bank on Wednesday which included new details and for the first time named the executives the state believes were involved in deceiving users of the dark pool.
But the bank’s lawyers said in their own filing that the move by Mr Schneiderman was a last-ditch attempt to bolster his allegations against Barclays after the judge on the case pointed out numerous weaknesses in the lawsuit.“The NYAG hopes to uncover information to somehow fix the fatal deficiencies in the complaint identified by Barclays’ motion to dismiss and by the court at oral argument — deficiencies that are in no way cured in the NYAG’s proposed amended complaint,” Barclays’ lawyers wrote. Although the bank has settled with US watchdogs over LIBOR rate rigging, it is fighting this case.
Dark pools have been in the regulatory crosshairs because prices are not posted in real time and trades are revealed after they have been executed. Mr Schneiderman and other critics allege that secrecy has sometimes masked practices that favour traders, who use thousands of rapid-fire trades, over other investors.
Both filings came as the parties wait for Justice Shirley Werner Kornreich to rule on the bank’s motion to dismiss the case. She has previously expressed some scepticism about the state’s claim that Barclays favoured its high-frequency trading clients over other institutional investors who used its dark pool.
“How is anybody going to defend against this?” she asked during last month’s oral arguments, a transcript of which was made public last week. “There are no names, there are no specifics. It is so conclusory that I have no clue what we’re talking about here. This is a fraud claim, but there are absolutely no specifics in this complaint.”
People familiar with the attorney-general’s case said the office filed the revised complaint because of significant new facts uncovered during the investigation that the state believes undermined statements that Barclays made to the court.
The new filing alleges that internal Barclays documents show that the bank knew it was falsely claiming to clients that between 6 per cent and 9 per cent of the trading in its dark pool was “aggressive”. The new complaint also said the alleged wrongdoing was part of a widespread effort at the bank to deceive certain clients about protections for them, and that the dark pool catered to rapid-fire traders instead.
Mr Schneiderman’s filing said Barclays was not co-operating with the investigation and had defied subpoenas for two bank officials involved in the alleged scheme. The filing said they were William White, who is head of electronic trading, and David Johnsen, head of product development.
“The NYAG [New York attorney-general] hopes to uncover information to somehow fix the fatal deficiencies in the complaint identified by Barclays’ motion to dismiss and by the court at oral argument — deficiencies that are in no way cured in the NYAG’s proposed amended complaint”
Justice Kornreich has also asked why the attorney-general’s office brought the case when those who were allegedly harmed by the set-up were sophisticated institutional investors who could seek damages through private lawsuits. Several private lawsuits have been filed against Barclays that are seeking to represent the entire class of dark pool users.
The judge also said sophisticated investors would not base their decisions on the marketing materials and newspaper articles cited by the state, and asked why none of the harmed clients had been named.
Barclays’ lawyers late on Wednesday filed a motion to quash the subpoenas and halt any more discovery until the court had ruled on the request to dismiss the case. The bank also said the attorney-general’s office served the subpoenas more than seven months ago. At that time, both men agreed to be deposed.
The bank said the attorney-general’s office cancelled the depositions and instead filed its lawsuit against Barclays last June.
State lawyers revived the subpoenas on December 26 after oral arguments in which the judge criticised the lawsuit. People familiar with the attorney-general’s case said the depositions had been taken off the calendar rather than cancelled. They also claimed that Barclays had continued producing documents after the lawsuit was filed but had not made the officials available for interviews since the subpoenas were revived in December.