Judge Kaplan yesterday denied a motion to dismiss one of a series of cases arising from allegations that the Bank of New York promised its customers “best execution” of foreign exchange transactions but, in fact, maximized its own profit by giving customers the worst (or near worst) prices of the day. (A prior post with more background is here.) A central question in the motion was whether the Bank of New York’s agreement with the plaintiff actually encompassed a “best execution” obligation. Judge Kaplan concluded that the question could not be decided on a motion to dismiss because:
[N]either the complaint nor the other materials before the Court unequivocally establishes all of the terms of the contract or contracts that governed all of the relevant transactions. In part, but only in part, that is attributable to the practice, common in this new electronic age, of putting putative terms and conditions of business transactions on Internet web pages that may change from time to time and that may or may not have been assented to. So this matter quite plainly is not susceptible of disposition on a motion to dismiss the complaint.