“Last Look” cases against Goldman Sachs, RBS, BNP Paribas continue

Maria Nikolova

Following a conference held on September 12, 2017, the parties in a number of “Last Look” cases brought by Alpari (US) are given until September 22, 2017, to update on arbitration.

Whereas now defunct FX broker Alpari (US) has dismissed the “Last Look” cases against Citigroup Inc (NYSE:C) and Morgan Stanley (NYSE:MS), the proceedings against Goldman Sachs Group Inc (NYSE:GS), BNP Paribas SA (EPA:BNP), Royal Bank of Scotland Group PLC (NYSE:RBS) and a number of their subsidiaries continue at the New York Southern District Court.

On September 12, 2017, an Initial Conference was held before Judge Lorna G. Schofield. The conference was followed by the issuance of Case Management Plans and Scheduling Orders regarding the cases brought by Alpari (US) against Goldman Sachs, BNP Paribas and RBS.

The documents stipulate that in each of these three cases, the parties do not consent to conducting all further proceedings before a United States Magistrate Judge, including motions and trial. The parties have not yet discussed settlement or other methods of alternative dispute resolution.

The court gives parties until September 22, 2017, to file a joint letter with an update on the arbitration issue. If the parties do not agree to arbitrate, then by October 13, 2017, defendants (Goldman Sachs, RBS, BNP Paribas and certain of their subsidiaries) shall file any motion to compel arbitration. By November 3, 2017, Plaintiff Alpari (US) shall file a single opposition, responding to all motions to compel arbitration in this and the similar cases heard at the September 12, 2017, conference.

Alpari (US) alleges that the defendants had caused damage to the broker and other FX market participants due to 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:

  • Goldman Sachs is alleged to have first used Last Look practices on Redi FX when it was launched in February 2008, and on Marquee Trader when it was launched in 2013. On Redi FX and Marquee Trader, Goldman Sachs is said to have further applied Last Look to all API/FIX and ECN trades, as well as a portion of those customers using Goldman Sachs’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.
  • 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.

Although the precise amount of damages claimed is not known, the Plaintiff – Alpari (US), has forecast that class-wide damages will be in the hundreds of millions of dollars.

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