A US judge on Tuesday narrowed but refused to dismiss a lawsuit seeking to save Deutsche Bank AG from being held liable to investors for delaying forex trades to get a ‘last look’, enabling the German bank to enrich itself at the expense of its clients.
The proposed class-action lawsuit sought to deny the request of Axiom Investment Advisors LLC, a New York-based forex trader, to pursue claims of contract breach over currency deals entered into on Deutsche Bank’s Autobahn platform and other trading networks, or ECNs.
Axiom Advisors was among thousands of traders that suffered millions in losses as Deutsche Bank programmed algorithms used by its platform to delay trade processing by at least several tenths of a second, according to the court documents.
The complaint alleged that Deutsche Bank has used this practice, dubbed ‘last look’, since at least 2003, but said it has gone undetected because most forex trades are anonymous. Axiom seeks damages for all US traders that placed trading orders that were matched with Deutsche Bank, rejected and matched again at a price that benefited the bank more since 2005.
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In her decision, US District Judge Lorna Schofield in Manhattan said: “Autobahn’s terms of service were ambiguous as to whether a binding agreement to trade arose when a customer’s trade instruction was executed, permitting Deutsche Bank a last look, or received from the matching algorithm, not permitting a last look.”
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Schofield added that the service agreements for other ECNs could not be considered in deciding the motion to dismiss because they were made between Deutsche Bank and the ECN operators, and there was no evidence that Axiom agreed to their terms.
The judge also said Axiom can pursue an unjust enrichment claim, but dismissed claims under New York consumer protection laws because currency trading was “not consumer-oriented conduct.”
British bank Barclays PLC was hit with a similar suit by Axiom in 2015 and already agreed to pay $50 million to settle with the US authorities. Axiom says that both lawsuits were related to a giant forex manipulation case ongoing against nine banks.
The German lender continues to face civil litigation in the US over its foreign currency trading but it hasn’t yet settled these matters with any agency.