One of the country's foremost nonprofit legal advocacy groups for whistleblowers has taken up the cause of former JPMorgan Chase broker Johnny Burris who was fired after refusing to put his elderly clients into the bank's own high-priced products.
The Government Accountability Project, which has represented Edward Snowden and other prominent tipsters, filed an appeal of a Department of Labor decision to uphold the bank's termination of Burris in 2012. That same decision, issued last month, also found that the bank did retaliate against Burris, who’s now an RIA based in Surprise, Arizona.
JPMorgan drew the largest SEC fine of 2015, $307 million, for inappropriately pushing its own products, three years after Burris provided the commission with more than a thousand pages of documents and secret recordings supporting his allegations. Burris also accuses several of his managers of lying under oath or omitting material facts during a FINRA arbitration case.
ADMINISTRATIVE LAW JUDGE
Burris’ appeal of the Department of Labor’s decision will be heard by an administrative law judge.
Quote"It's not about justice. It's about winning – that is exactly how the companies play it." – Stephen Kohn, whistleblower lawyer
"It is, from our perspective, a slam dunk instance of injustice," says the Government Accountability Project’s legal director, Tom Devine, who’s helped craft many whistleblower laws in the U.S. and abroad. The appeal represents a chance “to put a spotlight on a bank that may have engaged in misconduct more significant than Wells Fargo's fake accounts [scandal]. And it's a chance to expose problems in the DoL's whistleblower program."
JPMorgan declined to comment on the latest developments.
Founded in 1977, the Government Accountability Project has worked with more than 8,000 whistleblowers, Devine says, including Deutsche Bank whistleblower Eric Ben-Artzi, a former risk officer who last year won an $8 million award from the SEC after revealing that the bank had overvalued its credit derivatives portfolio.
The DoL's Administrative Review Board is a forum roughly equivalent to a federal court. Traveling the country to hear cases, rather than working out of a particular court, makes them less susceptible to conflicts of interest that can grow out of a geographic power base, some believe. The appeal takes the matter out of OSHA's Whistleblower Protection Program, the subject of a Financial Planning investigation into broad-based allegations of whistleblower suppression.
Two former OSHA investigators who had supported Burris' claim against JPMorgan were fired. In a practice common in their former office, the investigators say, OSHA needlessly sat on Burris' case for four years, and only took action after outside pressure. OSHA and the Labor Department did not respond to requests for comments.
'THAT IS ALL THEY DO'
Quote"It's a chance to expose problems in the DoL's whistleblower program." – Tom Devine, legal director, Government Accountability Project
"They are whistleblower retaliation specialists – that is all they do," Burris says of the Government Accountability Project’s decision to take his case. “The last four years I've been twisted into knots." He estimates he’s spent about $100,000 defending himself against JPMorgan, much of it in a 2013 FINRA case he lost. Last year, FINRA filed another complaint against him on JPMorgan's behalf that is pending.
Stephen Kohn – a prominent whistleblower attorney not involved in the Burris case who represented a UBS whistleblower in a 2012 case that produced the largest whistleblower award to date at $104 million – says "the odds are [Burris] is going to get a fair shake" from an administrative law judge.
"They are federal employees sitting in an office in Pittsburgh or Cincinnati," Kohn says. "They are not tied to Wall Street."
In the proceedings, hearsay is admissible and Burris's side can subpoena emails and records about other brokers who committed worse offenses but were not fired, Kohn says. Burris' lawyers will be able to depose all JPMorgan managers up the chain of command who were involved.
When whistleblowers represent themselves – as Burris has for years against OSHA – Kohn says, companies think, "We can crush this guy. It's not about justice. It's about winning – that is exactly how the companies play it."