RBS, Credit Suisse, BNP Paribas get a month to move to compel arbitration or dismiss Alpari (US) case

Maria Nikolova

By December 7, 2017, the banks must file any consolidated motion to compel arbitration and/or dismiss the “Last Look” case brought by Alpari (US) on the basis of “forum non conveniens”.

The Honorable Lorna G. Schofield of the New York Southern District Court has agreed with a schedule proposed by a number of banks that are defendants in a “Last Look” case brought by now-defunct Forex broker Alpari (US). According to a memo endorsement, signed by the Judge on November 3, 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), have until December 7, 2017, to file any consolidated motion to compel arbitration and/or dismiss.

As previously indicated by the banks, their motion will be on the basis of “forum non conveniens”. The concept of “an inconvenient forum” or “a forum not agreeing” typically implies an argument about jurisdiction, that is, that there is a court better suited to hear the case than the current one.

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 September this year, Alpari (US) dropped the action against Citi and Morgan Stanley. In October, it dismissed its “last look” action against Goldman Sachs.

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