Now defunct FX broker Alpari (US) has dropped its “last look” lawsuit against BNP Paribas. This becomes clear from the latest documents filed with the New York Southern District Court.
A notice of dismissal, seen by FX News Group, states that Alpari (US) dismisses its action without prejudice against defendant BNP Paribas, S.A. Alpari says that the voluntary dismissal is proper because: (1) BNP Paribas has not filed an answer or a motion for summary judgment; and (2) this dismissal will not bind or prejudice any party or member of the putative class, as the court has not considered or certified any class in this litigation thus far.
Let’s recall that, on July 23, 2021, that is, more than three years after the Court ordered arbitration of the case, Judge Lorna G. Schofield said that the parties in this case will have to update the Court about how matters have developed.
In this lawsuit, several banks, including Credit Suisse and Royal Bank of Scotland, 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.
On June 12, 2018, the Court issued an Order granting the banks’ motion to compel arbitration and staying the cases.
The Judge agreed with a motion by the banks filed in December 2017. Back then, the defendant banks moved the Court to either compel arbitration on Alpari’s complaints or to dismiss the case altogether.
The defendants noted that Alpari (US) was a registered member of the National Futures Association (NFA) from November 14, 2007 to April 21, 2015. As a member, they said, Alpari is bound by the NFA Member Arbitration Rules. Under those rules, the dispute between Alpari and the defendants, which are also NFA members, or principals of members, shall be arbitrated. Accordingly, the Court should compel arbitration.
Even if the NFA rules did not mandate arbitration, the defendants argue, Alpari (US) would be precluded by contract from prosecuting its claims in the New York Southern District Court. Alpari’s dealings with the defendants were pursuant to written agreements, including pricing and liquidity agreements and prime brokerage agreements, that govern the resolution of disputes. Although the terms of the agreements with each defendant differ in certain aspects, a common thread is that they require Alpari to resolve its claims in arbitration or the courts of England.
This is the so-called “forum non conveniens” doctrine. It 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.
On August 6, 2021, Judge Schofield approved Alpari’s motion for voluntary dismissal of the case against BNP Paribas.