RBS, Credit Suisse, BNP Paribas announce plans to rebuff “last look” allegations

Maria Nikolova

The banks plan to move to compel arbitration and/or to dismiss on the basis of “forum non conveniens”.

The proceedings against a number of top-tier banks, which Alpari (US) had accused of using the so-called “last look” practices, continue at the New York Southern District Court. On Thursday, November 2, 2017, 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), filed a Letter with the Court, announcing their plans on how they will proceed.

In the document, seen by FinanceFeeds, the defendants say that they have telephonically met and conferred regarding their future actions. They have agreed 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.

Any details, of course, will be made clear in the future motions. The proposed schedule is the following:

  • By December 7, 2017, Defendants should file any consolidated motion to compel arbitration and/or dismiss on the basis of forum non conveniens.
  • By January 11, 2018, Plaintiff should file any consolidated opposition.
  • By January 26, 2018, Defendants should file any consolidated reply.

The number of defendants in the “last look” cases brought by now-defunct FX broker Alpari (US) had been higher, but the broker dropped the action against Citi and Morgan Stanley in September this year. In October, it dismissed the “last look” action against Goldman Sachs.

All of the banks were alleged to have caused damage to Alpari (US) and other FX market participants due to the employment of Last Look practices. All of the defendants were 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.

Although the precise amount of damages is not known, the Plaintiff – Alpari (US), has earlier indicated that it expects class-wide damages to be in the hundreds of millions of dollars.

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