Alpari (US), BNP Paribas, Credit Suisse, RBS agree on confidentiality in “Last Look” case

As a number of top banks accused by now-defunct FX broker Alpari (US) of employing “Last Look” practices prepare their defenses, the parties in the lawsuits have agreed on confidentiality of information in the respective cases.

Documents, submitted at the New York Southern District Court on December 5, 2017, outline the provisions that govern disclosure and use by the parties of all documents, such as electronically stored information, testimony, exhibits, interrogatory answers, responses to requests to admit, and any other materials and information produced or provided, in the actions brought by Alpari (US) against Credit Suisse Group AG (VTX:CSGN), Credit Suisse AG, and Credit Suisse Securities (USA), LLC, Royal Bank of Scotland Group plc (LON:RBS) and RBS Securities Inc., and BNP Paribas SA (EPA:BNP).

The parties agree that “Confidential” Information or Items will cover all information, testimony, or tangible things obtained during discovery in the above-mentioned actions that would disclose non-public, confidential, personal, proprietary, financial, customer, client or commercially sensitive information, confidential trade secrets or non-public research.

“Highly Confidential” Information or Items will cover “Confidential” information or Items that contains (a) material regarding trading and investment strategies, pricing and cost information, customer lists, business strategy, trade secrets and other commercial or financial information, the disclosure of which to another Party or non-party would create a substantial risk of causing the Disclosing Party to suffer significant competitive or commercial disadvantage; or (b) Personal Data, including, but not limited to, social security numbers; home telephone numbers and addresses; tax returns; medical, personal credit and banking information; and personal financial information.

The document specifies strict rules about the disclosure of confidential and highly confidential information.

“Confidential” information, for instance, may be disclosed only to certain persons, such as the Court and court personnel in these actions, as well as party’s counsel, and any person who is a current employee of the Disclosing Party.

Disclosure of “Highly Confidential” Information will be permitted (after the signing of Acknowledgment) to the Court and court personnel in these actions, the parties’ counsel, current employees of the Disclosing Party, a former officer, FX trader or FX salesperson (or one of their assistants) of the Disclosing Party.

The Judge notes that this Stipulation and Order shall apply to pre-trial proceedings in these actions and shall have no application at trial. However, all provisions of this Stipulation and Order restricting the use of “Confidential” or “Highly Confidential” information shall continue to be binding after the conclusion of these actions. Within 60 days of the conclusion of these actions, all parties in receipt of Confidential or Highly Confidential Discovery Material shall make commercially reasonable efforts to either return such materials and copies thereof to the Disclosing Party or destroy such materials and certify that fact.

All of the banks are alleged to have caused damage to Alpari (US) and other FX market participants as a result of the use of Last Look practices. All of the defendants are accused of breach of contracts on their proprietary trading platforms, breach of contracts on ECNs, as well as of unjust enrichment.

In particular, RBS is alleged to have first used Last Look on Currenex and RBSTrade at least as early as January 1, 2008, and on RBSMarketplace beginning with its launch in 2008. On RBS Marketplace, RBS is said to have further applied Last Look to all API/FIX and ECN trades, as well as a portion of those customers using RBS’s GUI.

Credit Suisse is alleged to have first implemented this intentional delay, its Last Look, on PrimeTrade no later than January 1, 2008. On PrimeTrade and Credit Suisse Plus, and the rest of Credit Suisse proprietary platforms, Credit Suisse is said to have further applied Last Look to all API/FIX and ECN trades, as well as a portion of those customers using Credit Suisse’s GUI.

BNP Paribas is alleged to have first implemented Last Look through Currenex no later than 2008, on FX e-Trader in 2009, and on Cortex in 2012. On BNP Paribas proprietary platforms, BNP Paribas further applied Last Look to all API/FIX and ECN trades, as well as a portion of those customers using BNP Paribas’ GUI.

In November, the banks said they plan to move to compel arbitration and/or to dismiss on the basis of forum non conveniens pursuant to Fed. R. Civ. P. 12(b)(3). In short, “forum non conveniens” means “an inconvenient forum” or “a forum not agreeing” and typically implies an argument about jurisdiction, that is, that there is a court better suited to hear the case than the current one.