CFTC seeks to rebuff FX Cartel trader claims
The United States Commodity Futures Trading Commission (CFTC) has opposed a push by former JPMorgan FX trader Richard Usher, known for his participation in the Forex Cartel chatroom, to obtain internal Commission documents. This becomes clear from the latest filings with the District of Columbia District Court.
As FX News Group has reported, Usher is suing the CFTC for what he calls “Kafkaesque injustice”. In sum, the trader asks to use a set of CFTC documents in proceedings brought against him by the Office of the Comptroller of the Currency (OCC). The CFTC has refused to produce the documents.
Specifically, Usher seeks to compel the CFTC to comply with a subpoena issued by an administrative law judge (ALJ) in a civil enforcement action brought against him by the Office of the Comptroller of the Currency (OCC), pending before a specialized administrative tribunal, the Office of Financial Institution Adjudication. That subpoena demands production of numerous categories of internal, sensitive Commission documents that all involved agree would be largely privileged.
His complaint alleges one count of “unlawful and unconstitutional violation of a valid administrative subpoena,” and seeks as relief various orders, including: declaring the OCC subpoena valid and binding as to the CFTC, declaring that Plaintiff has a constitutional right to the material demanded by the subpoena, and requiring the CFTC to comply with the subpoena.
According to the latest Court filings, the CFTC claims that Usher’s motion to compel, like the complaint, fails for multiple, independent reasons. Some of these reasons are purely administrative.
There are more fundamental ones too.
For instance, according to the CFTC, Usher fails to provide any support for his nebulous assertion of a constitutional right to the production of internal Commission documents in civil administrative proceedings before a separate agency in which he is otherwise entitled to broad discovery, including from third parties who have access to substantially the same set of documents, and a hearing at which he could raise any then-outstanding discovery issues.
Let’s note that Usher is also suing the Department of Justice (DOJ) over its refusal to allow him to use certain documents in the OCC proceedings. The complaint alleges that “the DOJ has adopted a purposeful and spiteful strategy” to prevent Usher from using the exculpatory materials that led to his acquittal in his criminal trial to defend himself from the same allegations in a follow-on administrative enforcement action.