A judge said Wednesday Lehman Brothers Holdings Inc. could probe whether Barclays PLC got a "windfall" worth billions of dollars when it bought Lehman's broker-dealer business in 2008.
Judge James Peck of the U.S. Bankruptcy Court in Manhattan gave Lehman the power to subpoena documents and witnesses so that it can investigate a deal that was cobbled together a week after the investment bank collapsed last September.
Barclays opposed the request, but Peck said that Lehman should have the chance to revisit the sale. He said the deal was put together "in virtually no time, and it's conceivable that mistakes were made."
"The notion there may have been a misunderstanding or even an innocent misrepresentation as opposed to a willful one is entirely possible," Peck said. "We will get to the truth."
Under the agreement, Barclays paid $1.54 billion for Lehman's North American broker-dealer business and agreed to assume up to $4.2 billion in liabilities, according to Lehman.
Robert Gaffey, a Lehman lawyer, told Peck at Wednesday's hearing the company has now uncovered "fairly significant discrepancies" that it wants to explore. But without a court order, Lehman said, it could not obtain the documents it wanted or depose former employees who transferred to Barclays after the sale.
Among the issues that Lehman says warrant investigation is an agreement by Barclays to cover more than $4 billion of Lehman's liabilities, a central piece of the deal. Lehman now questions whether Barclays paid all these costs, which included $2 billion in employee bonuses.
Barclays argued Lehman should not be allowed to revisit the sale because, when Peck approved it, he found that the consideration was fair and that Barclays was making the highest and best offer. It also disputes the sale agreement required that it pay a specific dollar amount in liabilities.
Jonathan Schiller, a Barclays attorney, told Peck Lehman was going too far in its demands for information. "They want it all," he said. "It's exceptionally broad. It's hugely intrusive, and it's not justified."
Gaffey said Lehman may find that it has legal claims against the British bank, but Barclays said in a statement after Peck's ruling that it does not expect to face any claims. "We fully intend to abide by the court's ruling and continue to cooperate with (Lehman), and at the conclusion of the inquiry we do not expect any claims to be brought against Barclays," a spokesman said.