Richard Usher, a former FX trader for JPMorgan Chase, is not giving up on seeking access to information that could help in proceedings launched by the Department of the Treasury’s Office of the Comptroller of the Currency (OCC). Some of this information, Usher says, may come from the Commodity Futures Trading Commission (CFTC).
And as the CFTC has refused to comply with subpoena for the information the ex-trader seeks, he does not give in but keeps pushing for the documents he needs. On June 1, 2021, Richard Usher, who is mostly known for his role in the so-called “Forex cartel” chatroom, filed a set of documents at the District Of Columbia District Court, asking the Court to compel the regulator to produce the documents he needs.
Richard Usher is a British citizen and London-based former FX trader for JPMorgan Chase (JPMorgan), who is a defendant in a U.S. Government civil proceeding brought by the Department of the Treasury’s Office of the Comptroller of the Currency (OCC). The theory of the OCC’s penalty case is that Mr. Usher’s conduct caused JPMorgan financial harm when JPMorgan entered into a 2014 settlement with U.S. government agencies including the Commodity Futures Trading Commission (CFTC).
The OCC brought its civil charges against Mr. Usher on the same day in January 2017 that the DOJ Antitrust Division indicted Mr. Usher for allegedly price-fixing in the FX markets. But in October 2018, Mr. Usher was acquitted of antitrust charges for the same conduct – after a three-week jury trial in New York City. Discovery in the OCC civil case is at an advanced stage.
The Office of Financial Institution Adjudication (OFIA) Administrative Law Judge (ALJ) presiding over the Usher OCC case, Judge Jennifer Whang, has authorized a subpoena against the CFTC that seeks documents relating to JPMorgan’s 2014 settlement with the CFTC. The novel theory of the OCC case holds Mr. Usher liable for the Bank’s CFTC civil settlement. OCC Enforcement Counsel did not oppose the request.
Nonetheless, the CFTC has repeatedly refused to supply any information concerning its settlement with JPMorgan in response to the ALJ’s subpoena. After months of delay, on April 12, 2021, the CFTC issued its “final decision” refusing to comply with the Subpoena in toto, despite the fact that an ALJ of a sister agency of the U.S. Government duly reviewed and authorized the Subpoena. Against the OCC’s novel theory that Usher should be accountable for the JPMorgan settlement, the CFTC information is seen as critical to the defense of Usher.
This Court has authority to enforce compliance with the Subpoena, Usher says. The documents required to be produced are discretely targeted to the specific settlement between the CFTC and JPMorgan. Any burden the Subpoena may place on the CFTC is minimal and inherent in the United States government’s own novel theory using a CFTC corporate fine as the basis for a large civil individual fine and a lifetime prohibition.
The OCC case does not claim that Mr. Usher’s trading caused it any losses. But novelly the OCC claims a settlement that the bank negotiated out on its own with the CFTC is reason enough to punish Usher.
According to Usher, the CFTC’s wholesale refusal to comply with the ALJ’s Subpoena violates his procedural due process rights to defend himself. The right to present a defense is fundamental under the Due Process Clause; the right to subpoena records is a key feature of the right to put on a defense.
Usher concludes by stating:
“It is truly Kafkaesque for one agency within the U.S. Government (the CFTC) to disclaim responsibility for the facts, events, and communications underlying an effort by another agency (the OCC) to prosecute Mr. Usher and to deprive him of his livelihood and life savings—when the CFTC settlement is the very basis for individual liability”.
