Followup: Court decides on status of FX trader’s emotional email

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“The law is reason free from passion” is one of the affirmations considered as axioms in the litigation world. But this famous quote from Aristotle has been called into question by the most recent developments in a Forex fraud case brought by the United States Commodity Futures Trading Commission (CFTC) against Brett Hartshorn.

According to the CFTC, from at least June 18, 2008 to in or around 2014 Hartshorn fraudulently solicited at least 13 individuals including members of his church to invest in off-exchange foreign currency and to give him discretionary authority to trade Forex on their behalf. Hartshorn solicited and/or managed at least $906,000 in client funds.

Instead of filing a Motion to Dismiss compliant with all the formal procedures, the defendant has sent an email to the Court asking for the dismissal of his case based on emotionally-charged pleas. These included promises that he would try to make a great and positive difference in this world and complaints about him having lost everything.

Following up to this story, FinanceFeeds has learnt from court filings that, in a very unusual act, Judge Andrew L. Carter of the New York Southern District Court, has agreed to treat Hartshorn’s email as a Motion to Dismiss. On Thursday, February 8, 2018, he issued a brief memo endorsement saying that the defendant’s email is construed as such a motion.

Whether empathy played a role in the Judge’s decision is a question without an answer at this point. It could be that the Judge simply agreed with the practical arguments – that is, that the defendant would not be able to file a fully-compliant Motion to Dismiss anyway, as he has claimed he does not have the financial resources to do so.

Let’s note that in the face of the hyper-emotional language of the email, it still contains a part that makes some particular claims about the dismissal of the case. In particular, Mr Hartshorn says:

“It is my understanding, that a case can be made for the dismissal of this case against me because of the different state that the suit was filed in, (New York), which is different from the state where the trades I made on behalf of my friends currency accounts were held, and where these friends of mine live and where I live, (Florida)…”

Apart from that, however, he resorts to pleas about how desperately he needs to have this action axed:

“If it is legally possible to dismiss to suit against me, Your Honor, Please do so, so I can try to figure out a way to go back to being a provider for my Family, a great Dad, a great Husband, a great Friend, a great Son, a great Brother and a Guy who can make a great and positive difference in this world”.

The CFTC accuses Hartshorn of fraud in connection with retail Forex transactions, failure to register as a CTA and failure to comply with relevant CTA requirements. The CFTC asks the Court to enter an order requiring Hartshorn to pay a civil monetary penalty in an amount of not more than the greater of (1) triple the monetary gain for each violation of the Act and Commission Regulations or (2) $140,000 for each violation of the Act and Commission Regulations.

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