Judge Rules Forex Transactions Not Securities

December 28, 2001 (PLANSPONSOR.com) - Foreign exchange transactions are not considered securities under New York's Martin Act, which allows the state attorney general to prosecute actions involving the sale of securities in New York, according to a Southern District of New York Court.

In Lehman Brothers Commercial Corporation v. Minmetals International Non-Ferrous Metals Trading Company, Judge John Keenan likened a foreign exchange transactions to a contractual wager based on movements in specified foreign-currency prices, noting that there was “no real possibility of foreign currency changing hands.”

Lehman Brothers charged that Minmetals was responsible for multimillion-dollar margin calls, made by employee Hu Xiangdong on trades involving currency exchanges, interest-rate swaps, and Thai baht-denominated negotiable certificates of deposit (NCDs).

The defendants argued that Hu was not authorized to make the trades and lodged a counterclaim accusing Lehman Brothers of negligence, negligent misrepresentation and breaching their fiduciary duty.

Lehman Brothers argued that the Martin Act barred the counterclaims, but the defendants countered that the transactions were not “securities” under the Act.

The judge sided with Minmetals, agreeing that the trades at issue could not be considered securities since the act defines securities as any “stocks, bonds, notes, evidences of interest or indebtedness or other securities.”

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