(Bloomberg) — UBS Group AG says it won’t hand over a stash of privileged documents for a probe into Credit Suisse’s handling of Nazi-linked accounts after failing to win assurances that doing so wouldn’t expose it to new financial claims.
UBS said Thursday it had weighed giving the files to Neil Barofsky, who’s overseeing the probe into the Credit Suisse archives. But it changed its mind after a New York judge said he couldn’t shield it from future lawsuits.
Tuesday’s court decision means UBS can no longer risk handing over the documents to him, Switzerland’s biggest bank said. UBS bought its troubled former rival in 2023, inheriting a number of legal cases from Credit Suisse including this one.
“We explored ways to provide” Barofsky “with access to these documents while ensuring appropriate safeguards given recent threats of litigation related to the 1999 Settlement Agreement” UBS said on Thursday in an update to the Q&A on its website. “In light of the court’s decision, we will continue to maintain confidentiality over the privileged documents from the 1990s class action litigation.”
This week’s turn of events risks pushing the case out of the courts and back into the public and political domain. Members of a US Senate committee tore into two top UBS executives at a public hearing in February for refusing to hand over the documents. Senator Chuck Grassley, who chairs the Senate Judiciary Committee, said he may hold another hearing on the topic this fall.
The latest round of legal wrangling comes after UBS attorney David Burns in March asked Judge Edward Korman for a clarification to block the Simon Wiesenthal Center from suing for more money and promoting “any public controversy” in a way that is inconsistent with the 1999 settlement. Any new claims related to Nazi-linked accounts could expose the bank to a potential multi-billion dollar potential liability.
The SWC, named for the famous Nazi-hunter Simon Wiesenthal, denies it has threatened to sue the bank.
Judge Korman ruled on Tuesday that because there is no actual litigation before him in the long-running dispute between Credit Suisse and the SWC, he couldn’t issue an advisory opinion.
“UBS wants to use its disagreement with SWC to assert there is a case or controversy, without actually filing any motion or lawsuit,” wrote Judge Korman, who oversaw the 1999 settlement in which Swiss banks agreed to pay $1.25 billion to survivors of the Holocaust and their families. “UBS cannot have it both ways.”
Barofsky said at the February hearing that the withheld records, which number about 150, appear to go to “the heart of our investigation,” which wouldn’t be complete without him being able to review them. To add to the pressure, Barofsky then released a 73-page update on his investigation, showing that it had revealed hundreds more possible leads on Nazi-linked accounts, including those of senior officials and entities.
“The investigation found certain instances in which Credit Suisse did not share findings from its 1990s historical review regarding the Holocaust and World War II with the public commissions that reported on Credit Suisse’s activities or in its own publications,” Barofsky wrote.
But UBS remains undeterred. It stresses that the language of the 1990s accord expressly protected it from any potential further liability — known or unknown at the time.
In Thursday’s update, the Zurich-based bank added that “we are not withholding documents from prior to the 1990s, even if they were included in the 1990s class action litigation files.”
“For example, if World War II-era documents are attached to a privileged document, we are not withholding those historical documents,” it added, reiterating that the bank has given Barofsky access to some 16.5 million documents, and has withheld less than 0.1% of the total number.
