November 29, 2023

DealBook: Barclays’ Ex-Chief Spreads Blame in Scandal Over Rates

Former Barclays chief Bob Diamond testified at the British Treasury Select Committee on Wednesday.Agence France-Presse — Getty ImagesFormer Barclays chief Bob Diamond testified at the British Treasury Select Committee on Wednesday.

6:11 p.m. | Updated

LONDON — Robert E. Diamond Jr., the former chief executive of Barclays, told a British parliamentary committee on Wednesday that the manipulation of global interest rate benchmarks involving 14 traders at the bank had made him “physically sick.”

But the American-born banker, who resigned on Tuesday, also placed some of the blame for the rate manipulation scandal on regulators.

He said that the bank had raised concerns multiple times with American and British authorities about discrepancies over how Libor — the London interbank offered rate, a measure of how much banks charge each other for loans — was set. The bank was not told to stop the practice, according to Barclays’ documents submitted to the British Parliament.

“A number of banks were posting rates that were significantly below ours that we didn’t think were correct,” Mr. Diamond told the committee.

“I can’t sit here and say no one in the industry didn’t know about the problems with Libor,” he said. “There was an issue out there and it should have been dealt with more broadly.”

Mr. Diamond also sought to deflect attention from the bank’s role in the authorities’ continuing investigation, pointing out that other major global financial institutions also had been implicated. United States and British regulators, who announced a $450 million settlement with Barclays last week, are currently investigating the actions of more than 10 large financial institutions, including JPMorgan Chase, UBS and Citigroup.

The former chief of Barclays, who said he had been notified about the fines and civil penalties just a few days before the settlement was announced, said that the bank had been singled out because it was the first to settle.

The agreement with regulators showed that Barclays traders had altered Libor for their own benefit from 2005 to 2009. Senior executives also told employees to suppress the bank’s rate submissions during the three years through 2009, in response to the financial crisis that was pushing borrowing costs for most global financial institutions to record highs.

Mr. Diamond placed some of the blame for the rate manipulation scandal on regulators.ReutersMr. Diamond placed some of the blame for the rate manipulation scandal on regulators.

The committees’ members, some of whom have worked in the financial services industry, including at Barclays, focused on the role of Mr. Diamond, who previously led the firm’s investment banking unit.

The 60-year-old executive, who initially appeared nervous giving his testimony, but gradually became more comfortable during the nearly three hours of questioning, batted away questions of his being solely to blame for the scandal.

“I don’t feel personal culpability. What I do feel is a strong sense of responsibility,” Mr. Diamond said, adding he had made the decision to resign when support from regulators and shareholders for his position at the bank began to wane.

He also implicated the Bank of England, the country’s central bank, and leading British politicians.

During his testimony, Mr. Diamond described a phone call he received at the end of October 2008 from Paul Tucker, a high-ranking official at the Bank of England. According to Mr. Diamond, Mr. Tucker expressed concerns from senior politicians that Barclays had been submitting rates consistently higher than rivals, a sign of relatively poor health.

Mr. Diamond then e-mailed Jerry del Missier, a top deputy, about the conversation, saying that Mr. Tucker had stated that it “did not always need to be the case that we appeared as high as we have recently,” according to documents released by the bank.

Mr. del Missier, who also resigned on Tuesday, subsequently directed employees to keep the submissions lower, or at least in line with rivals. His actions, some regulators say, were owed to a “miscommunication,” rather than instructions from Mr. Tucker.

Mr. Diamond reiterated that he had not told senior executives to suppress the bank’s Libor submissions. He said he had only been told last month about the activity, which occurred amid the financial crisis.

“I was unaware that Jerry had the impression that Tucker’s phone call was taken as an instruction,” he said.

Mr. Tucker, who is the front-runner to take over as governor of the Bank of England, on Wednesday made a request to testify to the committee about his role in the Barclays scandal.

Mr. Diamond is the first person implicated in the rate manipulation scandal to give evidence to the British parliamentary committee. The outgoing chairman of Barclays, Marcus Agius, and high-ranking officials from the Financial Services Authority, the country’s securities regulator, and the Bank of England also are expected to testify.

In addition, the British prime minister, David Cameron, has announced a wide-ranging inquiry into the British banking sector, and expects the results to be published by the end of the year.

During his testimony, Mr. Diamond reserved his most angry words for the Barclays’ traders who had manipulated rates to benefit their own trading positions.

Regulatory filings show Barclays officials shared information between the firm’s treasury department, which help set Libor, and trading units, which buy and sell financial products on a daily basis. Firms are expected to maintain so-called Chinese walls between the divisions, to avoid confidential information being used in pursuit of a profit.

But e-mails among Barclays employees that were released by regulators showed that when a trader wanted the treasury department to change a rate, an employee responded: “For you, anything,” Another quipped: “Done … for you big boy.”

Some of the individuals based in New York and London could still potentially face civil and criminal prosecutions.

“I am sorry, angry and disappointed,” Mr. Diamond told the parliamentary committee on Wednesday, his voice becoming increasingly emotional. “There’s no excuse for the traders’ actions. This is wrong, and I’m not happy about it.”

The members of Parliament also asked Mr. Diamond whether he would give up any bonuses or payments as part of his resignation package. The former Barclays chief replied that any changes would be a question for the bank’s board.

Mr. Diamond was awarded £6.3 million ($10.3 million) in pay and perks for last year, and British politicians have warned that any so-called golden parachute for leaving his post would be unacceptable.

“It would be completely wrong if people leaving under these circumstances were given some vast payoff,” Mr. Cameron, the prime minister, told Parliament on Wednesday. “It would be completely inexplicable to the public. I hope that won’t happen.”

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DealBook: The Limits of Bigger Penalties in Fighting Financial Crime

President Obama called for tougher penalties for corporate crime.Charlie Riedel/Associated PressPresident Obama called for tougher penalties for corporate crime.

President Obama, in a speech last week, called for strengthened oversight and accountability of financial firms by increasing the punishments that can be imposed for criminal violations. This comes on top of a recent proposal by Mary L. Schapiro, the chairwoman of the Securities and Exchange Commission, to ratchet up the available civil penalties for violating the securities laws.

Seeking greater punishments for white-collar offenders gives the impression the government is taking steps to prevent crime, but there is a substantial question whether these proposals will have any appreciable impact on deterring future violations. The problem is not so much the penalty that can be imposed but proving a violation so that the punishment can be meted out. The paucity of criminal prosecutions from the financial crisis shows that the real difficulty lies in gathering evidence to prove a crime took place.

In his speech in Kansas, Mr. Obama said:

“Too often, we’ve seen Wall Street firms violating major antifraud laws because the penalties are too weak and there’s no price for being a repeat offender. No more. I’ll be calling for legislation that makes those penalties count so that firms don’t see punishment for breaking the law as just the price of doing business.”

What type of penalty would “count” is unclear because financial firms have already been fined significant amounts, like the $550 million civil penalty imposed on Goldman Sachs for selling a mortgage-bond related security. Whether that type of penalty deters future misconduct remains to be seen.

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Severe sanctions that would put a company out of business — a corporate death penalty — seems unfeasible in the current economic environment when the net result would be significant job losses for lower-level workers who had nothing to do with the violations.

Before any punishment for financial misconduct can be imposed, the government must prove an intentional violation, which in a criminal case requires proof beyond a reasonable doubt. That is often the rub, because the perceived financial “crimes” committed by Wall Street firms and others believed responsible for the financial crisis would involve showing intent to defraud, a difficult standard to meet.

The recent collapse of MF Global is a good example of just how hard it will be to prove criminal violations. A lawyer for the bankruptcy trustee said that the apparent loss of more than $1 billion in customer money was the result of “suspicious” transactions. The New York Times reported that there were multiple instances in which customer money was used to keep the firm afloat, perhaps going back as far as August 2011.

In his testimony last week before the House Agriculture Committee, Jon S. Corzine, MF Global’s former chief executive, said he had no idea how the customer money disappeared. He asserted that he “never intended to break any rules,” and that if any employee claimed the transfers were at his direction, then he was “misunderstood.”

This is the classic defense offered by senior corporate officers when there is wrongdoing at a firm, that they were not directly involved and therefore did not have the intent to mislead. Any decision to transfer customer money likely involved multiple layers of corporate management, meaning that fingers can be pointed elsewhere if no one had the primary responsibility for the decision.

The final days of MF Global appear to be marked by desperation to save the firm, and it is unlikely anyone thought about the potential penalties that could be imposed if they violated the law. Many financial frauds start small, with individuals cutting corners to keep the company afloat or make a quarterly number, all in the hope that once things stabilize they can make it right again. Even the accounting fraud at Enron started out with just reaching for those last few pennies of earnings to meet Wall Street’s estimates, and it grew from there.

Substantial prison terms have been imposed for violations of the antifraud laws in the last few years. The hedge fund manager Raj Rajaratnam received 11 years for insider trading, the longest sentence for that violation ever given, and Zvi Goffer, a former trader at Mr. Rajaratnam’s Galleon Group, received 10 years for the offense. In the most prominent mortgage fraud prosecution to date, Lee B. Farkas, the former chairman of Taylor, Bean Whitaker, received a 30-year prison term for causing losses the government estimated at $2.9 billion.

Along the same lines, in a $205 million health care fraud case, in September a federal judge in Miami gave a 50-year sentence to a former executive of a mental health company. And Bernard L. Madoff received perhaps the highest sentence ever for fraud: 150 years.

It is difficult to conclude the penalties available under the law for committing financial crimes are somehow lacking. Most financial frauds involve multiple violations that can be charged as separate crimes, so the potential punishment is often quite high, even for corporations that can only be subjected to fines. But corporate cases rarely even get to court because prosecutors are willing to allow companies to enter into deferred or nonprosecution agreements in which the punishment is agreed to in advance.

Congress has already pushed for higher sentences through Section 1079A of the Dodd-Frank Act, which directed the United States Sentencing Commission to review the sentencing guidelines for securities and financial crimes to ensure they reflect the impact of the offenses. So there is already pressure to ratchet up the recommended punishment for corporate fraud.

Higher recommended sentences may not result in great punishments because not all federal judges are willing to impose significant prison terms on white-collar offenders who often have otherwise sterling reputations and present little threat of future violations. The sentencing guidelines are not mandatory, so judges are largely free to draft sentences they consider appropriate.

Just increasing potential prison terms or fines may not have any appreciable impact in deterring fraud, given the difficulties of proving a financial crime and the differing views of judges on the appropriate punishment for a white-collar offender. That is especially true in cases like insider trading where it is hard to identify any individual victims and the defendant may be an executive with a record of charitable contributions.

Although President Obama asserted that Wall Street firms have violated “major antifraud laws,” the assumption that crimes occurred is easy to make but much more difficult for prosecutors to prove. And even if a crime can be established, it is not clear that just authorizing even greater punishments will have any real effect in deterring wrongdoing.

Peter J. Henning, who writes White Collar Watch for DealBook, is a professor at Wayne State University Law School.

This post has been revised to reflect the following correction:

Correction: December 12, 2011

An earlier version of this post gave an incorrect middle initial for the chairwoman of the Securities and Exchange Commission. It is Mary L. Schapiro, not S.

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