WASHINGTON — Attorney General Eric Holder today praised the decision by a judge in the United States District Court in the Eastern District of New York who found in favor of the Justice Department’s lawsuit claiming that American Express’ rules for merchants violate antitrust laws.

“Today’s decision is a triumph for fair competition and for American consumers,” said Attorney General Holder.  “By recognizing that American Express’s rules harm competition, the court vindicates the promise of robust marketplaces that is enshrined in our antitrust laws.  I salute the hardworking men and women who led the lengthy investigation and trial with uncommon skill and unwavering dedication.  With this achievement, we are sending an unambiguous message that the Department of Justice is prepared to litigate any case, no matter how complex, in its pursuit of justice and protection for the American people.”

The United States Department of Justice and 17 state attorneys general sued American Express, Visa Inc. and MasterCard International Inc., in 2010 to eliminate restrictions that the three credit card networks imposed on merchants.  Over the course of a seven week trial during the summer of 2014, the department argued that these restrictions obstruct merchants from using competition to try to keep credit card fees from increasing.  The civil case, brought under Section 1 of the Sherman Antitrust Act, sought to end the violation and to restore competition.

The trial focused on credit card “swipe fees” which generate over $50 billion annually for credit card networks.  Millions of merchants of all sizes and in scores of industries pay those fees.  Despite these large fee revenues, the Justice Department argued that price competition over merchant swipe fees has been almost non-existent and for decades the credit card networks have not competed on price.  Today’s decision was rendered by Judge Nicholas G. Garaufis.

“Merchants pay over $50 billion in credit card swipe fees each year.  The department and the attorneys general of 17 states brought this case because competition over those fees was being suppressed,” said Deputy Assistant Attorney General for the Antitrust Division Leslie C. Overton.  “The Court’s ruling establishes that the American Express anti-steering rules block merchants from using competition to keep credit card swipe fees down, which means higher costs to those merchants’ customers.  I am proud of the outstanding work done by the investigative and trial teams.  As today’s decision reaffirms, the Antitrust Division remains committed to ensuring that competition is not restricted in this important sector of the economy.”

Settlements with Visa and MasterCard were filed at the same time the case against American Express was begun; the settlements prohibit the two networks from continuing their rules and practices that had obstructed competition.  The court approved the settlements on July 20, 2011, and they applied immediately to Visa and MasterCard.  American Express was not a party to the settlements, and the litigation against American Express continued.

The department argued that the principal reason for an absence of price competition among credit card companies has been rules imposed by each of the networks that limit merchants’ ability to take advantage of a basic tool to keep prices competitive.  That tool – commonly used elsewhere in the economy – is merchants’ freedom to “steer” transactions to a network willing to lower its price.  Each network has long prohibited such steering to lower-cost cards.  Now that Visa and MasterCard have reformed their anti-steering rules, American Express rules stood as the last barrier to competition.

At trial, an array of merchants came forward to explain both the substantial costs they incur when their customers pay with credit cards and their inability to ignite competition among the networks to reduce those costs.  In fact, the rules not only prevent merchants from offering their customers lower prices or other incentives for choosing a less costly card, they even block merchants from providing consumers with truthful price information about the cost of swipe fees of different credit cards.

Examples, used as trial exhibits, of what the Amex rule prohibits can be found at http://www.justice.gov/atr/cases/amex/amex-te.html.

Closing arguments in the trial took place on Oct. 9, 2014.  Craig Conrath was the lead trial attorney for the United States.  The 17 plaintiff states were Arizona, Connecticut, Idaho, Illinois, Iowa, Maryland, Michigan, Missouri, Montana, Nebraska, New Hampshire, Ohio, Rhode Island, Tennessee, Texas, Utah and Vermont.  The court also entered a scheduling order instructing the parties to submit, within 30 days, a joint proposed remedial order.


Investigation Has Yielded 20 Charges to Date

WASHINGTON — A federal grand jury in Newark,  N.J., returned an indictment against six investors for their roles in a  conspiracy to rig bids at auctions conducted by New Jersey municipalities for  the sale of tax liens, the Department of Justice announced.

The indictment, filed today in U.S.  District Court for the District of New Jersey in Newark, charges four  individuals, Joseph Wolfson, Gregg Gehring, James Jeffers Jr. and Robert Jeffrey, and two entities, Betty Simon Trustee LLC and Richard Simon Trustee, with participating in a conspiracy to rig bids at tax lien auctions in New  Jersey.  According to the indictment, from at least as early as 1998 and continuing until as late as February 2009,  the investors participated in a conspiracy to rig bids at auctions for the sale of municipal tax liens in New Jersey by agreeing to allocate among certain  bidders which liens each would bid on.  The  indictment alleges that the investors proceeded to submit bids in accordance with the agreements and purchased tax liens at collusive and non-competitive interest rates.

Joseph Wolfson, of Margate, N.J., was  a part-owner of two entities that invested in municipal tax liens, Betty Simon  Trustee and Richard Simon Trustee, both of Northfield, N.J.  Gregg Gehring, of Newton, N.J., was employed  by a major tax lien investment company as a vice president.  James Jeffers Jr., of Burlington, N.J., was a  bidder for Crusader Servicing Corp., which pleaded guilty to its role in the  conspiracy in September 2012, and also a bidder for Crusader’s successor  corporation. Robert Jeffrey, of  Bradenton, Fla., was a bidder for both Crusader and its successor corporation.

“The individuals and entities  charged today demonstrated a blatant disregard for the competitive process by  allocating the purchase of certain municipal tax liens by, from time to time,  flipping a coin, drawing numbers out of a hat or drawing from a deck of cards,”  said Leslie C. Overton, Deputy Assistant Attorney General for the Antitrust  Division.  “The Antitrust Division  remains committed to prosecuting those who thwart the competitive bidding  process.”

The department said that the  primary purpose of the conspiracy was to suppress and restrain competition in  order to obtain selected municipal tax liens offered at public auctions at  non-competitive interest rates.  When the  owner of real property fails to pay taxes on that property, the municipality in  which the property is located may attach a lien for the amount of the unpaid  taxes.  If the taxes remain unpaid after  a waiting period, the lien may be sold at auction.  State law requires that investors bid on the interest  rate delinquent property owners will pay upon redemption.  By law, the bid opens at 18 percent interest  and, through a competitive bidding process, can be driven down to zero percent.   If a lien remains unpaid after a certain  period of time, the investor who purchased the lien may begin foreclosure  proceedings against the property to which the lien is attached.  Since the conspiracy permitted the  conspirators to purchase tax liens with limited competition, each conspirator  was able to obtain liens which earned a higher interest rate.  Property owners were therefore made to pay  higher interest on their tax debts than they would have paid had their liens  been purchased in open and honest competition, the department said.

The indictment alleges, among other  things, that from at least as early as 1998 and continuing until as late as  February 2009, prior to the commencement of certain tax lien auctions in New  Jersey, the investors and their co-conspirators agreed not to compete for the  purchase of certain municipal tax liens.

A violation of the Sherman Act  carries a maximum penalty of 10 years in prison and a $1 million fine for  individuals.  The maximum fine for a  Sherman Act violation may be increased to twice the gain derived from the crime  or twice the loss suffered by the victim if either amount is greater than the  $1 million statutory maximum.

Including today’s charges, 20  individuals and entities have been charged as part of an ongoing investigation  into bid rigging or fraud related to municipal tax lien auctions in New Jersey.   To date, 11 individuals – Isadore H.  May, Richard J. Pisciotta Jr., William A. Collins, Robert W. Stein, David M.  Farber, Robert E. Rothman, Stephen E. Hruby, David Butler, Norman T. Remick,  Robert U. Del Vecchio Sr., and Michael Mastellone – and three companies, DSBD  LLC, Crusader Servicing Corp., and Mercer S.M.E. Inc., have pleaded guilty aspart of this investigation.

Today’s charge is part of efforts  underway by President Obama’s Financial Fraud Enforcement Task Force (FFETF)  which was created in November  2009 to wage an aggressive, coordinated and proactive effort to investigate and  prosecute financial crimes.  With more  than 20 federal agencies, 94 U.S. attorneys’ offices and state and local  partners, it’s the broadest coalition of law enforcement, investigatory and  regulatory agencies ever assembled to combat fraud.  Since its formation, the task force has made  great strides in facilitating increased investigation and prosecution of  financial crimes; enhancing coordination and cooperation among federal, state  and local authorities; addressing discrimination in the lending and financial  markets; and conducting outreach to the public, victims, financial institutions  and other organizations.  Over the past  three fiscal years, the Justice Department has filed more than 10,000 financial  fraud cases against nearly 15,000 defendants, including more than 2,700  mortgage fraud defendants.  For more information on the task force, visit www.stopfraud.gov.

This ongoing investigation is being conducted by the Antitrust  Division’s New York Field Office and the FBI’s Atlantic City, N.J., office.  Anyone with information concerning bid rigging  or fraud related to municipal tax lien auctions should contact the  Antitrust Division’s New York Field Office at 212-335-8000, visit www.justice.gov/atr/contact/newcase.htm  or contact the Atlantic City Resident Agency of the FBI at 609-677-6400.


WASHINGTON — Coöperatieve Centrale  Raiffeisen-Boerenleenbank B.A. (Rabobank) has entered into an  agreement with the Department of Justice to pay a $325 million penalty to  resolve violations arising from Rabobank’s submissions for the London InterBank  Offered Rate (LIBOR) and the Euro Interbank Offered Rate (Euribor), which are  leading benchmark interest rates around the world, the Justice Department  announced today.

A criminal information will be filed  today in U.S. District Court for the District of Connecticut that charges  Rabobank as part of a deferred prosecution agreement (DPA). The  information charges Rabobank with wire fraud for its role in manipulating the  benchmark interest rates LIBOR and Euribor. In addition to the $325  million penalty, the DPA requires the  bank to admit and accept responsibility for its misconduct as described in an  extensive statement of facts. Rabobank has agreed to continue cooperating  with the Justice Department in its ongoing investigation of the manipulation of  benchmark interest rates by other financial institutions and  individuals.

“For years, employees at Rabobank, often working with traders at other  banks around the globe, illegally manipulated four different interest rates –  Euribor and LIBOR for the U.S. dollar, the yen, and the pound sterling – in the  hopes of fraudulently moving the market to generate profits for their traders  at the expense of the bank’s counterparties,” said Acting Assistant Attorney  General Mythili Raman of the Justice Department’s Criminal Division.  “Today’s criminal resolution – which represents the second-largest penalty in  the Criminal Division’s active, ongoing investigation of the manipulation of  global benchmark interest rates by some of the largest banks in the world –  comes fast on the heels of charges brought against three former ICAP brokers  just last month. Rabobank is the fourth major financial institution that  has admitted its misconduct in this wide-ranging criminal investigation, and  other banks should pay attention: our investigation is far from over.”

“Rabobank rigged multiple benchmark rates, allowing its traders to reap  higher profits at the expense of their unsuspecting counterparties,” said  Deputy Assistant Attorney General Leslie C. Overton of the Justice  Department’s Antitrust Division. “Not only was this conduct fraudulent,  it compromised the integrity of globally-used interest rate benchmarks –  undermining financial markets worldwide.”

“Rabobank admitted to manipulating LIBOR and Euribor submissions which  directly affected the rates referenced by financial products held by and on  behalf of companies and investors around the world,” said Assistant Director in  Charge Valerie Parlave of the FBI’s Washington Field Office. “Rabobank’s  actions resulted in the deliberate harm to counterparties holding products  referencing the manipulated rates. Today’s announcement is yet another  example of the tireless efforts of the FBI special agents and forensic  accountants who are dedicated to investigating complex fraud schemes and,  together with prosecutors, bringing to justice those who participate in such  schemes.”

Together with approximately $740 million in criminal and regulatory  penalties imposed by other agencies in actions arising out of the same conduct  – $475 million by the Commodity Futures Trading Commission (CFTC) action, $170  million by the U.K. Financial Conduct Authority (FCA) action and approximately  $96 million by the Openbaar Ministerie (the Dutch Public Prosecution Service) –  the Justice Department’s $325 million criminal penalty brings the total amount  to be paid by Rabobank to more than $1 billion.

According to signed documents, LIBOR is an average interest rate,  calculated based upon submissions from leading banks around the world and  reflecting the rates those banks believe they would be charged if borrowing  from other banks. LIBOR serves as the primary benchmark for short-term  interest rates globally and is used as a reference rate for many interest rate  contracts, mortgages, credit cards, student loans and other consumer lending  products. The Bank of International Settlements estimated that as of the  second half of 2009, outstanding interest rate contracts were valued at  approximately $450 trillion.

LIBOR is published by the British Bankers’ Association (BBA), a trade  association based in London. At the time relevant to the conduct in the  criminal information, LIBOR was calculated for 10 currencies at 15 borrowing  periods, known as maturities, ranging from overnight to one year. The  LIBOR for a given currency at a specific maturity is the result of a  calculation based upon submissions from a panel of banks for that currency (the  Contributor Panel) selected by the BBA. From at least 2005 through 2011,  Rabobank was a member of the Contributor Panel for a number of currencies,  including United States dollar (dollar) LIBOR, pound sterling LIBOR, and yen  LIBOR.

The Euro Interbank Offered Rate (Euribor) is published by the European  Banking Federation (EBF), which is based in Brussels, Belgium, and is  calculated at 15 maturities, ranging from overnight to one year. Euribor  is the rate at which Euro interbank term deposits within the Euro zone are  expected to be offered by one prime bank to another at 11:00 a.m. Brussels  time. The Euribor at a given maturity is the result of a calculation based  upon submissions from Euribor Contributor Panel banks. From at least 2005  through 2011, Rabobank was also a member of the Contributor Panel for  Euribor.

According to the statement of facts accompanying the agreement, from as  early as 2005 through at least November 2010, certain Rabobank derivatives  traders requested that certain Rabobank dollar LIBOR, yen LIBOR, pound sterling  LIBOR, and Euribor submitters submit LIBOR and Euribor contributions that would  benefit the traders’ trading positions, rather than rates that complied with  the definitions of LIBOR and Euribor.

In addition, according to the statement of facts accompanying the  agreement, from as early as January 2006 through October 2008, a Rabobank yen  LIBOR submitter and a Rabobank Euribor submitter had two separate agreements  with traders at other banks to make yen LIBOR and Euribor submissions that  benefitted trading positions, rather than submissions that complied with the  definitions of LIBOR and Euribor.

The Rabobank LIBOR and Euribor submitters accommodated traders’  requests on numerous occasions, and on various occasions, Rabobank’s  submissions affected the fixed rates.

According to the statement of facts, Rabobank employees engaged in this  conduct through electronic communications, which included both emails and  electronic chats. For example, on Sept. 21, 2007, a Rabobank Yen  derivatives trader emailed the Rabobank Yen LIBOR submitter at the time with  the subject line “libors,” writing: “Wehre do you think today’s libors are?  If you can, I would like 1mth libors higher today.” The submitter  replied: “Bookies reckon 1m sets at .85.” The trader wrote back: “I have  some fixings in 1 mth so would appreciate if you can put it higher mate.”  The submitter replied: “No prob mate let me know your level.” The trader  responded: “Wud be nice if you could put 0.90% for 1mth cheers.” The  submitter wrote back: “Sure no prob. I’ll probably get a few phone calls but no  worries mate!” The trader replied: “If you may get a few phone calls then  put 0.88% then.” The submitter responded: “Don’t worry mate – there’s  bigger crooks in the market than us guys!” That day, as requested,  Rabobank’s 1-month Yen LIBOR submission was 0.90, an increase of seven basis  points from its previous submission, whereas the other panel banks’ submissions  decreased by approximately a half of a basis point on average. Rabobank’s  submission went from being tied as the tenth highest submission on the  Contributor Panel on the previous day to being the highest submission on the  Contributor Panel.

On Nov. 29, 2006, a Rabobank dollar derivatives trader wrote to  Rabobank’s Global Head of Liquidity and Finance and the head of Rabobank’s  money markets desk in London, who supervised rate submitters: “Hi mate, low 1s  high 3s LIBOR pls !!! Dont tell [another Rabobank U.S. Dollar derivatives  trader] haa haaaaaaa. Sold the market today doooooohhhh!” The money  markets desk head replied: “ok mate , will do my best …speak later.”  After the LIBOR submissions that day, Rabobank’s ranking compared to other  panel banks dropped as to 1-month dollar LIBOR and rose as to 3-month dollar  LIBOR. Two days later, on Dec. 1, 2006, the trader again wrote to the money  markets desk head: “Appreciate 3s go down, but a high 3s today would be nice…  cheers chief.” The money markets desk head wrote back: “I am fast turning  into your LIBOR bitch!!!!” The trader replied: “Just friendly  encouragement that’s all , appreciate the help.” The money markets desk  head wrote back: “No worries mate , glad to help ….We just stuffed ourselves  with good ol pie , mash n licker !!”

In an example of an agreement with traders at other banks, on July 28,  2006, a Rabobank rate submitter and Rabobank trader discussed their mutual  desires for a high fixing. The submitter stated to the trader: “setting a  high 1m again today – I need it!” to which the trader responded: “yes pls  mate…I need a higher 1m libor too.” Within approximately 20 minutes, the  submitter contacted a trader at another Contributor Panel bank and wrote: “morning  skipper…..will be setting an obscenely high 1m again today…poss 38 just  fyi.” The other bank’s trader responded, “(K)…oh dear..my poor  customers….hehehe!! manual input libors again today then!!!!” Both  banks’ submissions on July 28 moved up one basis point, from 0.37 to 0.38, a  move which placed their submissions as the second highest submissions on the  Contributor Panel that day.

As another example, on July 7, 2009, a Rabobank trader wrote to a  former Rabobank yen LIBOR submitter: “looks like some ppl are talking with each  other when they put libors down. . . quite surprised that 3m libors came down a  lot.” The former submitter replied: “yes deffinite manipulation – always  is tho to be honest mate. . . i always used to ask if anyone needed a favour  and vise versa. . . . a little unethical but always helps to have friends in  mrkt.”

By entering into a DPA with Rabobank, the Justice Department took  several factors into consideration, including that Rabobank has no history of  similar misconduct and has not been the subject of any criminal enforcement  actions or any significant regulatory enforcement actions by any authority in  the United States, the Netherlands, or elsewhere. In addition, Rabobank  has significantly expanded and enhanced its legal and regulatory compliance  program and has taken extensive steps to remediate the misconduct.  Significant remedies and sanctions are also being imposed on Rabobank by  several regulators and an additional criminal law enforcement agency (the Dutch  Public Prosecution Service).

This ongoing investigation is being conducted by special agents, forensic  accountants, and intelligence analysts of the FBI’s Washington Field  Office. The prosecution of Rabobank is being handled by Assistant Chief  Glenn S. Leon and Trial Attorney Alexander H. Berlin of the Criminal Division’s  Fraud Section and Trial Attorneys Ludovic C. Ghesquiere, Michael T. Koenig and  Eric L. Schleef of the Antitrust Division. Deputy Chiefs Daniel Braun and  William Stellmach of the Criminal Division’s Fraud Section, Criminal Division  Senior Counsel Rebecca Rohr, Assistant Chief Elizabeth B. Prewitt and Trial  Attorney Richard A. Powers of the Antitrust Division’s New York Office, and  Assistant U.S. Attorneys Eric Glover and Liam Brennan of the U.S. Attorney’s  Office for the District of Connecticut, along with Criminal Division’s Office  of International Affairs, have provided valuable assistance in this  matter.

The investigation leading to these cases has  required, and has greatly benefited from, a diligent and wide-ranging  cooperative effort among various enforcement agencies both in the United States  and abroad. The Justice Department acknowledges and expresses its deep  appreciation for this assistance. In particular, the CFTC’s Division of  Enforcement referred this matter to the department and, along with the FCA, has  played a major role in the investigation. The department has also worked  closely with the Dutch Public Prosecution Service and De Nederlandsche Bank  (the Dutch Central Bank) in the investigation of Rabobank. Various  agencies and enforcement authorities from other nations are also participating  in different aspects of the broader investigation relating to LIBOR and other  benchmark rates, and the department is grateful for their cooperation and  assistance. In particular, the Securities and Exchange Commission has  played a significant role in the LIBOR investigation, and the department  expresses its appreciation to the United Kingdom’s Serious Fraud Office for its  assistance and ongoing cooperation.

This  prosecution is part of efforts underway by President Barack Obama’s Financial  Fraud Enforcement Task Force. President Obama established the interagency  Financial Fraud Enforcement Task Force to wage an aggressive, coordinated and  proactive effort to investigate and prosecute financial crimes. The task  force includes representatives from a broad range of federal agencies,  regulatory authorities, inspectors general and state and local law enforcement  who, working together, bring to bear a powerful array of criminal and civil  enforcement resources. The task force is working to improve efforts  across the federal executive branch, and with state and local partners, to  investigate and prosecute significant financial crimes, ensure just and  effective punishment for those who perpetrate financial crimes, combat  discrimination in the lending and financial markets and recover proceeds for  victims of financial crimes. For more information about the task force  visit: www.stopfraud.gov.