Wall Street’s Protection Racket: Mandatory Arbitration

By Pam Martens and Russ Martens: August 23, 2016 

Scales of JusticeWhat people across Wall Street cannot figure out is why the Board of JPMorgan Chase, America’s biggest bank by assets, didn’t sack its CEO, Jamie Dimon, at some point between the bank’s first two felony counts in 2014 and its third felony count in 2015. Or, as two trial lawyers, Helen Davis Chaitman and Lance Gotthoffer point out on their web site, during the past five years as JPMorgan Chase racked up $35.7 billion in fines and settlements for “fraudulent and illegal practices.”

JPMorgan Chase’s abuses of its own customers are so vast that Chaitman and Gotthoffer had to create a Wheel of Misfortune to catalog the scams for ease of viewing by the public.

And here’s the worst part: those are just the frauds that the public is allowed to read about. JPMorgan Chase, along with other notoriously abusive banks on Wall Street, is allowed to force claims against it into a private justice system called mandatory arbitration. This system allows systemic abuses to avoid detection for years because claims made by both employees and customers are ushered into Star Chamber tribunals which lack the judicial protections afforded in a court of law.

JPMorgan Chase must be proud of its mandatory arbitration agreement for its employees because we found it at its web site. These are some of the salient points which show the stark contrasts between mandatory arbitration and a public courtroom proceeding where both the public and the press can observe the proceedings:

“The arbitrator, the Parties and their representatives must maintain the confidentiality of the hearings unless the law provides otherwise…

“The decision will be final and binding upon the Parties, and appeal of the decision to a court shall be limited as provided by the FAA [Federal Arbitration Act]…

“JPMorgan Chase reserves the right to amend, modify or discontinue this Agreement at any time in its sole discretion to the extent permitted by applicable law.”

Consider what happened to Johnny Burris, a JPMorgan Chase licensed broker in a branch near Phoenix, Arizona. In 2013 Burris complained that JPMorgan Chase was pressuring him to sell its own mutual funds to clients, rather than giving him the independence to select what he felt was in the client’s best interests. After Burris refused to sell the in-house funds, he was fired by the bank. After his charges went public, JPMorgan Chase had one of its own employees draft customer complaints against Burris and file them with FINRA, the self-regulator that also oversees Wall Street’s private justice system, according to the New York Times. During the arbitration hearing, the JPMorgan employee denied drafting the claims for the customers.

In 2015, the New York Times’ Nathaniel Popper wrote an article on the perversion of justice against Burris and quoted the customers, by name, denying that they had made the complaints or had even seen the text of what they were signing against Burris.

On December 18 of last year, the SEC appeared to validate the very complaints alleged by Burris, fining JPMorgan Chase $267 million and making it admit to wrongdoing. JPMorgan Chase paid an additional fine of $40 million to the Commodity Futures Trading Commission in a parallel action. Julie M. Riewe, Co-Chief of the SEC Enforcement Division’s Asset Management Unit, said the following in the SEC’s announcement of the fine:

“In addition to proprietary product conflicts, JPMS [JPMorgan Securities] breached its fiduciary duty to certain clients when it did not inform them that they were being invested in a more expensive share class of proprietary mutual funds, and JPMCB [JPMorgan Chase Bank] did not disclose that it preferred third-party-managed hedge funds that made payments to a J.P. Morgan affiliate. Clients are entitled to know whether their adviser has competing interests that might cause it to render self-interested investment advice.”

In other words, in the SEC’s eyes, had JPMorgan Chase simply disclosed its conflicts in its fine print to its customers, it would have been good to go.

In January, Public Citizen and other consumer advocacy organizations wrote to Jamie Dimon, urging the following:

“Our national public interest, consumer advocacy and citizen organizations write to urge you to drop the pre-dispute mandatory (or forced) arbitration clauses buried in JPMorgan Chase & Co. customer account agreements. Attached is a petition with more than 100,000 signatures from across the country calling for Chase and four other banks to promptly remove all arbitration requirements from your contracts with customers. These non-negotiable terms simply deny customers their access to the courts should they seek to pursue legal claims against your company. They also deprive your customers of important legal protections. The result is that consumers cannot practically and fairly resolve disputes with you or seek remedies for harm caused by wrongful conduct.”

A Federal agency, the Consumer Financial Protection Bureau (CFPB), proposed in May that financial institutions be forced to stop banning class action lawsuits through their mandatory arbitration agreements and that they submit arbitration filings and awards to the CFPB as a monitoring agency. Yesterday was the cutoff period for public comments on the CFPB proposal with over 12,000 comments submitted. Those for whom the status quo is working well have turned out thousands of comments falsely suggesting that this would be a windfall for lawyers rather than what it actually is, a means of restoring a little sunshine to the serial misdeeds of JPMorgan Chase and its fellow miscreants on Wall Street. State Attorneys General from 19 states filed a public comment praising the proposal by the CFPB.

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