DOJ seeks to nix case brought by Forex Cartel trader

A lawsuit brought by Richard Usher, a former Forex trader known for his participation in the “Cartel” chatroom, continues at the District Of Columbia District Court. In this case, the trader accuses the Department of Justice (DOJ) of illegally preventing him from accessing and using documents from the criminal proceedings against him in another case.

The DOJ now insists that the lawsuit has to be dismissed due to mootness. On September 10, 2021, the DOJ filed a Notice of Suggestion of Mootness with the Court.

The document, seen by FX News Group, states that, because the proceedings for which the documents were supposed to be used were abandoned, the lawsuit against the DOJ should be nixed too.

Let’s recall that Richard Usher brought this action to challenge the DOJ’s denial of his request to use documents that the Department had previously produced pursuant to a protective order as part of criminal discovery.

Although the protective order prevented Usher from retaining the documents or using them in other proceedings, he requested that the Department allow him to use the documents in a civil enforcement action brought against Plaintiff by the Office of the Comptroller of the Currency (OCC). Plaintiff alleged that he needed to use the documents to defend himself in the OCC proceeding, and the administrative law judge overseeing the enforcement action issued a subpoena to the Department for some of the documents on that basis.

But after Usher filed his complaint in this action and moved to enforce the subpoena, the OCC withdrew all charges against him, with prejudice. And on July 8, 2021, the administrative law judge closed the OCC proceeding.

The case against the DOJ is therefore moot, the Department argues.

Usher has suggested that he may wish to use the documents in a potential future “post-dismissal” proceeding. If Plaintiff does decide to initiate some post-dismissal proceeding, he will of course be free to seek a subpoena for relevant documents at that time, the DOJ explains.

In January 2017, a grand jury indicted Usher and two other traders for their alleged roles in a conspiracy to manipulate the price of U.S. dollars and euros exchanged in the FX spot market. In connection with that criminal proceeding, Usher entered into a protective order providing that he could use documents disclosed by the government in discovery “only for the purposes of the defense of, and the pursuit of any appeals in, this criminal action.”

The protective order further provided that any documents disclosed to Plaintiff “[s]hall be returned to the Government or destroyed following the conclusion of this case . . . , together with any and all copies thereof.”

In October 2018, a jury acquitted Usher of the criminal charges against him. Because his criminal case had concluded, he was required to “return” or “destroy” all documents that the government had produced to him in discovery, “together with any and all copies thereof.” Instead, in violation of the express terms of the protective order, Usher retained the documents.

On March 11, 2021, Usher filed this lawsuit against the Department, seeking to require the Department to allow Plaintiff to use the complete set of criminal discovery in the OCC enforcement action.

Shortly after he filed his motion for summary judgment, on July 7, 2021, the OCC withdrew all charges against Usher, with prejudice. Plaintiff informed the administrative law judge that he may wish to file a motion to modify the protective order in the OCC matter and “some other form of post-dismissal relief.”

The DOJ explains that more than two months have now passed since the OCC dismissed its charge, and Usher has not filed anything before the Comptroller or amended his complaint in this case.

Defendants now suggest that this case is moot and should be dismissed.

Let’s note that, on September 10, 2021, the Commodity Futures Trading Commission (CFTC) filed a notice of mootness with the Court too. Usher is suing the regulator on similar grounds as he is suing the DOJ.

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