FILED: NEW YORK COUNTY CLERK 10/31/ :20 PM INDEX NO /2017 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 10/31/2017

Transcription

1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK MUKENGESHAYI KALEMBA individually and on behalf of all others similarly situated, Plaintiffs, Index No. SUMMONS vs. OANDA CORPORATION, Defendant. TO THE ABOVE NAMED DEFENDANT: YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve a copy of your answer, or, if the complaint is not served with this summons, to serve a notice of appearance, on plaintiff s attorneys within 20 days after the service of this summons, exclusive of the day of service (or within 30 days after the service is complete if this summons is not personally delivered to you within the State of New York); and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint. Plaintiff designates New York County as the place of trial. Venue is proper because the Defendant does business in or derives substantial revenue 1 of 22

2 from activities carried out in this County, and many of the wrongful acts alleged herein occurred in this County. DATED: October 31, 2017 By: /s/ Samuel E. Bonderoff Samuel E. Bonderoff Jacob H. Zamansky Edward H. Glenn, Jr. Zamansky LLC 50 Broadway, 32nd Floor New York, NY Telephone: (212) Facsimile: (212) of 22

3 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK MUKENGESHAYI KALEMBA, individually and on behalf of all others similarly situated, vs. Plaintiff, Index No. VERIFIED CLASS ACTION COMPLAINT OANDA CORPORATION, Defendant. Plaintiff Mukengeshayi Kalemba ( Plaintiff ), individually and on behalf of all others similarly situated (the Class ), by and through his undersigned counsel, ZAMANSKY LLC, alleges as follows on information and belief: NATURE OF THE CASE 1. This is a class action by the customers of defendant OANDA Corporation ( OANDA or Defendant ) to recover damages caused by excessive and undisclosed spread, fee overcharges and related trading losses on online foreign currency exchange ( Forex ) transactions. 2. OANDA is one of the largest online Forex trading platforms in the United States. It offers anyone the ability to trade Forex contracts that usually trade among banks and large institutions in the major interbank system. OANDA also provides a currency exchange and other related services. 3. For many years, OANDA has consistently represented on its website and in its sales and marketing materials that it offers low spreads, competitive spreads and no commissions or account maintenance fees. OANDA has also represented that it offers transparent pricing and that it will make available historical price data to customers. 3 of 22

4 4. These sales and marketing representations were material to potential Forex customers and trading business. Having made these representations, OANDA has enjoyed rapid customer and revenue growth, and now has one of the largest market shares of Forex transactions executed in the United States. 5. Unfortunately, since at least 2013, OANDA s representations to the public have been false. Unbeknownst to its customers, OANDA s spreads are not low or even competitive, but excessive. OANDA also charged interest on its customers funds on a per-trade basis, which is functionally equivalent to a commission and represents a significant built-in per transaction cost that is not disclosed or transparent. OANDA s surreptitious excess spreads and interest charges violate its advertising, sales and marketing representations, enabling the firm to reap outsize profits at its customers expense. 6. This class action seeks to recover the excessive Forex spreads, trading losses and interest charges incurred by OANDA customers, to obtain price transparency for OANDA customers, and to obtain an accounting for these overcharges. PARTIES 7. Plaintiff is and was at all times herein mentioned a resident of the State of Connecticut. 8. Defendant is incorporated in Delaware with its principal office located at 140 Broadway, 46th Floor, New York, New York OANDA lists this address as its registered address and operates and manages all of its global operations from this location. 2 4 of 22

5 JURISDICTION AND VENUE 9. The Court has jurisdiction over this action, pursuant to CPLR 302(a)(1), because Defendant is present and transacts business in New York State, New York County. 10. Venue is proper pursuant to CPLR 503(c) because Defendant has its principal office in New York County. 11. Defendant is also subject to this Court s jurisdiction and venue pursuant to its contractual agreements with Plaintiff and the Class. SUBSTANTIVE ALLEGATIONS A. OANDA s Sales and Marketing Representations 12. Since it was founded in 1997, OANDA has become one of the largest automated online Forex trading platforms in the United States. In March 2017, for example, OANDA was processing an average of $10 billion of Forex trades daily. 13. OANDA offers anyone the ability to trade Forex contracts, which usually trade among banks and large institutions in the major interbank system. OANDA also offers currency exchange and other related services. 14. In its marketing materials, and on its website, OANDA has represented and advertised to Plaintiff and the Class that the Forex exchange rates quoted to its clients were an accurate reflection of average market rates, differing only by virtue of a markup above the market rate when buying currency and a markdown below the market rate when selling. 15. This difference between the buy and sell quotes is OANDA s profit called the spread. OANDA has represented that this spread is the only fee charged by OANDA for Forex trading, and that its pricing was transparent and did not include any hidden fees or commissions. 3 5 of 22

6 16. Generally, Forex spreads are represented in pips, which represent one basis point (1/100th of 1%) or $ for currencies quoted in terms of U.S. dollars. Typically for Forex trades, the average spread may range from 0.6 pips on the low side to 1.2 pips on the high side. 17. OANDA has also represented that its exchange prices, quotes and spread were an accurate representation of average actual prices in the major interbank system offered by main banks and other brokers. OANDA further represented that its exchange prices, quotes and spread were transparent and that they would provide tools such as historical data with tick (one-minute) resolution spanning several years back. 18. Since the 2001 launch of its automated trade platform, OANDA has advertised that its spreads were low and competitive compared to the market. For example, in a January 8, 2008 press release titled OANDA Breaks the Sound Barrier in Foreign Exchange: First to Narrow Spread to Less than 1.0 PIP, OANDA stated that its spread policy is simple: to offer the tightest variable spreads possible with no discrimination. 19. In this same press release, OANDA s Chief Executive Officer Michael Stumm ( CEO Stumm ) stated that [b]y maintaining a fully automated trading platform, with no human involvement or dealer intervention, we are able to offer our clients the tightest spreads possible. 20. OANDA s advertising and marketing about its spreads has been consistent over the years. On its website, reflected in Exhibit A attached hereto, OANDA represents that it offers consistently competitive spreads and exceptional execution, and no commissions or account maintenance fees. OANDA also represents that it deliver[s] low spreads. 21. OANDA has also made this representation in its sales and marketing pieces about the benefits of its services: 4 6 of 22

7 22. In addition, OANDA has also made this disclosure on its website: PRICING TRANSPARENCY With our Spread Only account having no added commissions and no minimum deposit, you get a transparent pricing model and highly competitive spreads. Your cost to trade is the spread. Other account maintenance or financing fees may apply. 23. From the start, OANDA has known that its advertising about its spreads is highly material to traders as well as to potential new customers. In the same January 8, 2008 press release cited above, OANDA stated: In the foreign exchange market, trading spreads are very important because they affect the return on investors trading strategies. With wider spreads, traders pay more when they buy and get less when they sell, making it more difficult for them to realize a profit. A half pip lower spread may not sound like much, but it can easily make the difference between a profitable trading strategy and an unprofitable one, said Michael Stumm, CEO and co-founder of OANDA Corporation. 24. Based on these representations, and in material reliance upon them, Plaintiff and the Class became OANDA customers. They each opened online Forex trading accounts with OANDA and placed buy and sell Forex transactions through their OANDA accounts. They each were charged a spread and other fees by OANDA on their Forex transactions. 25. Forex spreads are not widely published or disseminated. It is impractical, if not impossible, for Forex traders to comparison-shop. It is similarly impractical (if not impossible) for 5 7 of 22

8 Forex traders to obtain historical pricing data to analyze past spreads. Thus, Forex traders are captive to, and must rely on, the integrity of their Forex brokers. 26. Additionally, as the Forex contracts are typically leveraged 50:1 (or more), Forex traders also placed stop and limit orders through OANDA based on expected competitive market spreads. If OANDA s spread were not competitive, its customers would suffer trading losses from trades that were not executed while positions moved against them. B. OANDA s Representations Were False and Misleading 27. In truth, OANDA failed to provide the competitive spreads that were promised in its advertising and marketing materials. Instead, OANDA charged spreads that were excessive and higher than those of most other broker firms, thereby rendering its representations about its low and competitive spreads false and misleading. 28. In fact, according to a recent survey of 19 US Forex Brokers, 1 OANDA s spreads are among the highest of its competitors, including FXCM and Gain Capital. 29. There are also numerous other complaints about OANDA s spreads posted in various online chatrooms for Forex traders. In particular, complaints have repeatedly surfaced that OANDA s spreads are widest when there is news, and that OANDA profits greatly from its trades against customers. 30. Additionally, OANDA also effectively charged its customers fees and commissions that are described as interest charges. A typical Forex trade contract is embedded with leverage of 50:1. This means that if a Forex contract is purchased for $1,000, the investor is exposed to the gain or loss on $50,000 of the foreign currency. The leverage is thus built into the Forex contract. 1 Available at of 22

9 31. OANDA charged its customers interest on funds that it fictitiously lent to its Forex customers for the leverage. These interest charges are fictitious because OANDA did not actually lend money or margin to its customers who paid for their Forex contracts; rather, the leverage is embedded in the contract itself. Because there is no loan or margin extended by OANDA to its Forex customers, there is no transaction on which interest should properly be charged. 32. Moreover, OANDA s interest charges occurred on a per-transaction basis. These charges thus constitute excessive commissions or fees-per-trade that are imposed on OANDA s customers. The undisclosed nature of these per-trade charges makes OANDA s sales and marketing representations false and misleading. 33. The excessive spreads and interest charges by OANDA have led to increased profits for the company. In a January 16, 2013 Wall Street Journal article OANDA CEO Talks Growth, Possibility of IPO, former CEO K. Duker of OANDA stated that the company did not share its volume or revenue stats, but that it had aggressive revenue and EBITA targets for OANDA also reportedly had the largest market share among currency-trading firms at 17%. 34. In his profile on LinkedIn, another former OANDA CEO Ed Eger, whose tenure lasted from 2013 through March 2017, boasts of having increased revenue 64%, active clients over 73%; and improved EBITDA margins 39%. 35. In March 2017, OANDA announced that it was offering a new pricing model to its customers. OANDA s new core pricing charged the raw spread plus a flat fixed commission per trade. Upon information and belief, OANDA adopted this new pricing model not to correct its prior misrepresentations, but to reduce the lack of transparency in spread pricing so that OANDA could continue to maintain its profits while attempting to meet its competitive pricing claims. 7 9 of 22

10 CLASS ACTION ALLEGATIONS 36. This action may be brought and properly maintained as a class action under the provisions of Article 9 of the CPLR. 37. The putative class is defined as all customers who placed Forex trades through OANDA within the last six years and who executed a customer agreement with a provision that the law of the State of New York governs. 38. The members of this putative class are so numerous that separate actions or joinder of parties, whether required or permitted, is impracticable. According to public reports, in March 2017, OANDA processed an average of $10 billion dollars of Forex transactions daily. 39. There are questions of law and fact common to the Class that predominate over questions affecting only individual members of the class. 40. The principal common questions of law for the Class are: i) Whether OANDA s sales and advertising representations of competitive and low spreads and pricing transparency for its Forex transactions were false or misleading. ii) Whether OANDA s sales and advertising representations were material to its customers decisions to open accounts and make Forex trades. iii) Whether OANDA contravened its sales and advertising representations by charging excessive spreads on customers trades. iv) Whether OANDA contravened its sales and advertising representations by charging interest on the leverage embedded in customers trades. 41. Plaintiff s claims are typical of the claims of the members of the Class because all of OANDA s customers sustained damages in the form of excessive spreads, trading losses and interest charges complained of herein of 22

11 42. Plaintiff will fairly and adequately protect the interests of the members of the Class. Plaintiff has retained counsel who are highly competent and experienced in class action and complex litigation, including many matters involving the financial services industry. Plaintiff has no interests antagonistic to, or in conflict with, those of the Class. 43. Class action status is warranted in this action because the prosecution of separate actions by the members of the Class would create a risk of inconsistent adjudications over OANDA s sales and marketing representations and, as a practical matter, would potentially be dispositive of the interests of the other members not parties to the actions, or substantially impair or impede their ability to protect their interests. 44. Class action status is also warranted because: (i) prosecution of separate actions by the members of the Class would create a risk of establishing incompatible standards of conduct for Defendant; (ii) Plaintiff s and each Class member s costs of litigating claims on an individual basis would be impractical and prohibitive; and (iii) many Class members are unaware that they have been deceived, harmed and/or may have a potential cause of action. 45. For the above reasons, a class action is superior to other available methods for the fair and efficient adjudication of this controversy. COUNT I VIOLATION OF NEW YORK STATE GENERAL BUSINESS LAW 349 and Plaintiff incorporates by reference and re-alleges each and every allegation contained above as though fully set forth herein. 47. New York State General Business Law 349(a) states: Deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state are hereby declared unlawful. Section 350 similarly provides: False advertising in the conduct 9 11 of 22

12 of any business, trade or commerce or in the furnishing of any service in this state is hereby declared unlawful. It also states in subsection (h) of Section 349 that any person who has been injured by reason of any violation of this section may bring an action in his own name to enjoin such unlawful act or practice, an action to recover his actual damages or fifty dollars, whichever is greater, or both such actions. 48. OANDA is subject to Sections 349 and 350 because it operates from within New York State and because its contractual agreements with customers mandate that New York law apply to any disputes arising in relation to them. 49. Defendant OANDA engaged in deceptive conduct and false advertising that was materially misleading and/or likely to mislead a reasonable consumer. OANDA published false and misleading advertisements and marketing materials representing that its spreads on Forex trades were low and competitive when this was not true; OANDA published false and misleading advertisements and marketing materials representing that it did not charge commissions on trades when it did charge interest per transaction in an undisclosed and unjustified manner; OANDA published false and misleading advertisements and marketing materials representing that its pricing was transparent when it was not, and that historical price data were available when they were not; and OANDA failed to truthfully and accurately disclose the size of its spreads and the fees that it charged per trade. 50. OANDA s deceptive conduct and false advertising were directed on a uniform basis to consumers in the market as well as to all potential and existing Forex customers. 51. Plaintiff and the Class relied on OANDA s misleading representations, which were a substantial factor in their becoming Forex customers of the firm or trading Forex through OANDA of 22

13 52. OANDA s deceptive and misleading conduct and false advertising violated New York State General Business Law 349 and Plaintiff and the Class were proximately damaged by, and harmed as a result of, OANDA s false advertising and deceptive conduct and violations of New York State General Business Law 349 and 350, and OANDA is liable for all damages available by statute. COUNT II BREACH OF CONTRACT 54. Plaintiff incorporates by reference and re-alleges each and every allegation contained above as though fully set forth herein. 55. OANDA s relationships with its customers were governed by a contract called the FXTrade Customer Agreement (the Agreement ). Attached as Exhibit B to this Complaint is the version of the Agreement that was in effect from July 26, 2005 until approximately March 2016 (the July 2005 contract ). Attached as Exhibit C is the version of the Agreement that has been in effect since approximately March 2016 (the March 2016 contract ). 56. OANDA breached its contract with Plaintiff and Class members by failing to provide accurate exchange rates, failing to execute orders at specific prices, and failing to maintain spreads at levels commensurate with the nonoccurrence of a spread-widening event. OANDA agreed to and represented that they would provide these services to customers. 57. Clause 9(a) of both the July 2005 contract and the March 2016 contract provides that OANDA will make available to you the Exchange Rates at which OANDA is offering to enter into Trades with you. Consistent with OANDA s representations that their spreads were low and competitive, OANDA agreed to provide exchange rates, which comprise the rate offered by the market plus the spread, that were inherently competitively low. Clause 9(a) further of 22

14 states that exchange rates change because of rapidly changing market factors; however, OANDA s exchange rates were manipulated by other factors, such as OANDA s desire for profitability. OANDA would offer an exchange rate to entice customers into trades, then excessively widen their spreads (barring the occurrence of any rapidly changing market factors) to execute that order at the [more profitable] Exchange Rate in effect at the time such Order is executed. OANDA failed to provide exchange rates that represented competitively low spreads and were free from manipulation for reasons other than rapidly changing market factors. The intentional action of manipulating exchange rates by Defendant constitutes gross negligence or willful misconduct under clause 25 of the July 2005 contract and clause 24 of the March 2016 contract. 58. Clause 9(b) of both the July 2005 contract and the March 2016 contract provides that OANDA will use reasonable commercial efforts to execute any Order you submit to OANDA, through the FXTrade System, in accordance with its terms, and at the prevailing Exchange Rate at the time such Order is received at OANDA s FXTrade server. OANDA will have no obligation to execute any Order (other than a Close Out Order). OANDA failed to use reasonable commercial efforts to execute orders submitted by customers according to their terms and at the prevailing Exchange Rate because it manipulated exchange rates by charging excessive prices which were contrary to executing the orders at market prices that were available on competitor s Forex platforms, or it failed to execute customer orders where its excessive spread resulted in a failure to execute the order at a certain price that was never reached due to the excessive spread charged and the price in the order was reached by competitors Forex trading platforms. Not executing the orders according to the customers terms and at prevailing Exchange of 22

15 Rates constitutes gross negligence or willful misconduct under clause 25 of the July 2005 contract and clause 24 of the March 2016 contract. 59. Clause 9(d) of the March 2016 contract provides that spreads may widen or narrow at any time as a result of changes in the markets due to news announcements, political events, and periods of low liquidity. OANDA regularly widened its spreads even though none of these market changes occurred. Plaintiff s and Class members trades were designed by them to execute at specific prices based on the reliance that a competitive spread was incorporated into that price, and that barring the occurrence of the listed market changing (spread-widening) events spreads would remain at competitively low levels. OANDA widened spreads without notice and for no reason other than to increase per transaction profits. Even though clause 9(d) provides that [s]preads may widen at any time at OANDA s discretion[,] OANDA should not widen spreads to an extent that would render the spread no longer competitively low. The intentional action of manipulating spreads by Defendant constitutes gross negligence or willful misconduct under clause 24 of the March 2016 contract. 60. Further, OANDA published false and misleading advertisements and marketing materials representing that: its spreads on Forex trades were low and competitive, it did not charge commissions on trades, and its pricing was transparent. These misrepresentations created an implied contractual duty by OANDA to provide these services. OANDA breached this contract implied in law when it failed to provide low and competitive spreads and instead provided excessive which were higher than other Forex trading platforms, when it charged interest per transaction in an undisclosed and unjustified manner, and when it provided pricing that was not transparent. OANDA s intentional misrepresentations constitute gross negligence or willful misconduct under clause 25 of the July 2005 contract and clause 24 of the March 2016 contract of 22

16 61. Plaintiff and the Class members were proximately damaged and harmed as a result of OANDA s alleged breach of contractual and implied contractual duties, and OANDA is liable for all consequential and resulting damages. COUNT III FRAUD 62. Plaintiff incorporates by reference and re-alleges each and every allegation contained above as though fully set forth herein. 63. Defendant OANDA entered into a fraudulent scheme to increase profits and its customer base by not truthfully and accurately disclosing the size of its spreads and the fees that it charged per trade, thus obtaining excessive spreads, interest charges, and other fees from Plaintiff and Class members. 64. OANDA published false and misleading advertisements and marketing materials representing that: its spreads on Forex trades were low and competitive when in fact they were not low or even competitive and were often excessive; that it did not charge commissions on trades when it did charge interest per transaction in an undisclosed and unjustified manner; and that its pricing was transparent when it was not. 65. OANDA published false and misleading advertisements and marketing materials purposefully to attract and retain customers and increase profits by representing that its spreads on Forex trades were low and competitive. OANDA s false and misleading spread advertisements enticed Plaintiff and Class members to conduct their Forex trading using OANDA s platform with the expectation that they would receive low and competitive spreads on their Forex trades. OANDA s representation that its spreads were low and competitive was of 22

17 false because the spreads charged were excessively higher than spreads charged by competitor firms. 66. Defendant OANDA fraudulently represented that it did not charge commissions on trades. This commission-free trading representation enticed Plaintiff and Class members to conduct their Forex trading using OANDA s platform. However, OANDA did in fact charge interest per transaction in an undisclosed and unjustified manner. OANDA charged interest on funds that it fictitiously lent its Forex customers for the leverage; OANDA did not actually lend money or margin to its customers who paid for their Forex contracts, rather the leverage was already embedded in the contract itself. Since there was no loan or margin extended by OANDA to its Forex customers, there is no transaction on which interest could properly be charged. 67. Defendant OANDA fraudulently represented that that it offered transparent pricing. OANDA represented that the spread was the only fee charged by OANDA for Forex trading, and most importantly that its pricing did not include any hidden fees or commissions. Transparent pricing enticed Plaintiff and Class members to conduct their Forex trading using OANDA s platform with the expectation that the spread would be the only fee charged. The spread was not the only fee charged to Plaintiff and Class members; OANDA also charged interest on its customers funds on a per-trade basis, which is functionally equivalent to a commission and represents a significant built-in per transaction cost that was not disclosed or transparent. 68. At the time of their publication, OANDA knew that the statements that its spreads were low and competitive and its pricing was transparent were false and misleading. Defendant OANDA was intricately involved in every step of the complex Forex trading process. It designed and operated the computer programs which calculated the spread using market data including the bid rate, ask rate, and midpoint. OANDA used the calculated of 22

18 spread to set the timing of their customers order execution. Defendant OANDA caused their customers trades to be executed and settled. OANDA designed its account statements to hide any spread-related data. The word spread does not appear anywhere on the account statements, nor does any data from which a spread could be calculated. The format of the statement was specifically designed by OANDA to limit trading activity data and provide only a very high-level overview of customers trading activity to intentionally conceal excessive spread and hidden fee charges. 69. Knowing that it designed its entire Forex trading process around concealing excessive spreads and hidden fees from its customers, OANDA took affirmative action to deceive and entice the Forex trading marketplace. Knowing that it charged excessive, uncompetitive spreads, hidden fees, and designed its trading process around concealing this information, OANDA caused statements that its spreads were low and competitive and its pricing was transparent to be published on the internet. OANDA knew its internet marketing campaign of false and misleading statements would deceivingly attract more customers because low and competitive spreads and transparent pricing are two of the most important features to traders in the Forex marketplace. 70. At this time, prior to discovery, Plaintiff does not know each and every fraudulent act of Defendant and misrepresentations which were made. The above is a representation of the fraudulent scheme and conduct of Defendant. 71. Plaintiff and the Class relied upon Defendant s representations when they opened and maintained accounts with OANDA where they placed Forex trades. 72. By reason of OANDA s fraud, Plaintiff and Class members entrusted that the only fee paid for their Forex trades was a transparent low and competitive spread of 22

19 73. By reason of OANDA s fraud, including the specific fraudulent conduct set forth above, Plaintiff and Class members have been damaged by paying excessively higher spreads than those charged by competitor firms, non-transparent interest and fees. 74. By reason of the forgoing fraudulent conduct, Plaintiff and Class members are entitled to recover all of their damages. COUNT IV NEGLIGENT MISREPRESENTATION 75. Plaintiff incorporates by reference and re-alleges each and every allegation contained above as though fully set forth herein. 76. Defendant OANDA had a special relationship of trust and confidence with Plaintiff and the Class members. Plaintiff and the Class members had entrusted funds with OANDA for trading on the Forex markets, and depended and relied on OANDA for an honest market and truthful and accurate information about the Forex market and pricing. OANDA had superior knowledge from its position as a Forex dealer which it had a duty to communicate, and it knew Plaintiff and the Class relied on it for truthful and accurate information that was otherwise not available. 77. As a result, Defendant OANDA owed duties of care in its dealing and communications with Plaintiff and the Class. OANDA s advertisements and marketing materials representing that its spreads on Forex trades were low and competitive, that it did not charge commissions on trades, and that its pricing was transparent, were false and misleading representations to the Plaintiff and Class. Plaintiff and Class members relied on OANDA s misrepresentations to their detriment of 22

20 78. Moreover, Defendant OANDA s failure to disclose the truth about the size of its spreads, its interest charges, and the lack of pricing transparency represented material omissions to Plaintiff and the Class. 79. Plaintiff and the Class members were proximately damaged and harmed as a result of OANDA s alleged negligent misrepresentations and material omissions, and OANDA is liable for all proximate and resulting damages. COUNT V EQUITABLE ACCOUNTING 80. Plaintiff incorporates by reference and re-alleges each and every allegation contained above as though fully set forth herein. 81. Plaintiff and the Class members had entrusted funds with OANDA for trading on the Forex markets, with the expectation based on OANDA s advertising and marketing that they would receive low and competitive spreads on their Forex trades, with no commissions. In truth, unbeknownst to them, Defendant OANDA charged excessive spreads and fees on their transactions of which they were not aware. The extent of the excessive spreads and fees they were charged is not known to them. 82. Defendant OANDA possesses non-public information which reflects the extent of the excessive spreads and fees charged to the Plaintiff and the Class. This information is not available, or would be impractical to obtain, from any other source. 83. There is no adequate remedy at law. 84. Plaintiff and the Class members seek for Defendant OANDA to provide them with an accounting of all spreads, interest charges and other fees on their Forex transactions of 22

21 COUNT VI UNJUST ENRICHMENT 85. Plaintiff incorporates by reference and re-alleges each and every allegation contained above as though fully set forth herein. 86. In the alternative, to the extent it is determined that there are no specific contract provisions, Defendant OANDA was unjustly enriched by the alleged conduct described herein, the excessive spreads charged to its customers, the interest charges and other fees. 87. There is no adequate remedy at law. 88. Plaintiff and the Class members seek for Defendant OANDA to disgorge all spreads, interest charges and other fees on their Forex transactions which have unjustly enriched the firm. PRAYER FOR RELIEF WHEREFORE, Plaintiff demands judgment against Defendant OANDA, as set forth herein, as follows: (i) An order certifying the Plaintiff Class pursuant to CPLR Article 9; (ii) An order awarding Plaintiff and other Class members restitution, disgorgement and/or compensatory damages in their favor in an amount to be determined at trial, plus prejudgment interest; (iii) An order awarding Plaintiff his costs and disbursements and reasonable allowances for fees of Plaintiff s counsel and experts and reimbursement of expenses; and (iv) Granting Plaintiff such other and further relief as the Court may deem just and proper of 22

22 DEMAND FOR JURY TRIAL Plaintiff requests a jury trial for any and all Counts for which a trial by jury is permitted by law. DATED: October 31, 2017 By: /s/ Samuel E. Bonderoff Samuel E. Bonderoff Jacob H. Zamansky Edward H. Glenn, Jr. Zamansky LLC 50 Broadway, 32nd Floor New York, NY Telephone: (212) Facsimile: (212) samuel@zamansky.com of 22