While Wall Street was shocked yesterday after the announcement that HSBC's global head of cash FX trading, Mark Johnson, was arrested at JFK on charges of frontrunning a Cairn Energy trade of $3.5 billion pounds, perhaps nobody was more surprised than his employer, HSBC. According to Bloomberg, the Johnson was about to move to the U.S. to take up a broader position in the firm’s trading division. His arrest therefore, came as a shock to HSBC which wanted to promote the arrested trader to head of the bank’s foreign exchange and commodities business for the Americas.
The reason for HSBC's surprised was revealed by the FT earlier, which reported that according to HSBC's own internal "investigation" three years ago into a $3.5bn currency trade that US prosecutors now believe was criminally fraudulent, it found nothing wrong with the transaction.
The HSBC review, conducted in the wake of a sweeping foreign exchange rigging scandal that erupted in 2013, was led by an external lawyer and found no breach of its code of conduct. HSBC declined to comment. The bank was on Thursday reviewing its own investigation of the $3.5bn forex trade to decide whether to support Mark Johnson, its global head of forex cash trading, who was arrested on Tuesday evening at New York’s John F Kennedy airport.
As the FT adds, a solicitor for Mr Scott in London strongly denied the allegations on behalf of her client, who is UK-based. While a warrant for Mr Scott has been issued, US authorities are yet to apply formally for his extradition.
HSBC reviewed its $3.5bn purchase of sterling for Cairn Energy in 2011 along with many other forex trades as part of an internal remediation exercise that it carried out at the request of regulators when the wider forex rigging scandal erupted in 2013.
People briefed on the matter said the bank’s internal investigation found no breach of its code of conduct when it reviewed the trade carried out for Cairn by Mr Johnson and Mr Scott.
How unexpected: a bank looked at its own trades, and found nothing strange despite clear evidence, as revealed by US authorities, showing that Johnson had an explicit intention of frontrunning the client order. It took a DOJ review three years later to stubmel on the smoking gun. As a reminder, the DOJ alleged the traders used a technique known as “ramping” that caused the price of pounds to spike. That spike benefited the bank’s trading book at the expense of the client, who then paid a higher price for the sterling.
When Cairn challenged HSBC about spikes in sterling ahead of the trade, an unnamed supervisor, working with the bankers, then allegedly misled the client by blaming the price increase on a “Russian” bank in the market. The complaint adds that Mr Johnson was surprised Cairn went ahead with the transaction. When told of the company’s commitment, he responded “Ohhh, f***ing Christmas,” using an expletive as an adjective.
Meanwhile, HSBC thought the storm had passed. After banks paid $10bn in fines to US and UK authorities, they complained that spot forex was not included at the time within the UK’s criminal market-abuse regime. A decision by the UK’s Serious Fraud Office earlier this year to drop its criminal investigation into forex-rigging seemed to bolster that argument. However, the Justice Department is accusing the pair of breaching a far more sweeping law: that of wire fraud. The authorities basically accuse them of deceiving their clients for gain. The evidence appears to confirm this allegation.
Roger Burlingame, a former chief prosecutor at the New York office that is bringing the case, and who is now based at law firm Kobre & Kim, explained: “The defendants are charged with wire fraud. This simply means the government has alleged that they’ve used an electronic communication in the US to commit a fraud. “The statute uses the broad, standard definition of fraud; it’s not a technical scheme targeting market abuse in particular. The same statute is used to prosecute any kind of fraud that involves email, phone calls or texts.”
The allegedly criminal trade also slipped through the fingers of the UK's SFO: "a person familiar with the SFO’s thinking told the FT that the agency had not looked at the $3.5bn trade for Cairn and instead was focused on more generalised collusion and rigging within the $5tn-a-day forex market."
Legal experts said that even under UK law, if a bank acting as an agent for its clients can be proven to have defrauded them through deceit then this would be illegal in the UK too. That is important as in order to extradite Mr Scott, the US must persuade a UK court that the alleged wrongdoing was illegal both in the UK and the US at the time.
What are the implications of this arrest for HSBC? The FT concludes that there is a chance it could "cause reputational damage to the global bank’s forex trading business and fuel more calls for HSBC to face full criminal charges. The DoJ has already been criticised for failing to prosecute HSBC after it paid $2bn in 2012 over laundering billions of dollars for Mexican and Colombian drug gangs."
On the other hand considering current HSBC's reputation, this doesn't seem like much of a risk. More importantly, since the alleged wrongdoing happened before it signed a deferred prosecution agreement in 2012 bank insiders think it is unlikely to put it in breach of the deal to avoid prosecution that is due to expire next year.
In other words, while a trial of Johnson may or may not happen, and he may ultimately be found guilty - of wire fraud - the real message here is that perhaps it is time to stop the farce that is internal bank "self reviews" of alleged fraud, which as this incident confirms are merely a waste of time and shareholder funds.