JPMorgan Chase’s alleged double-standard application of the Protocol for Broker Recruiting is rankling many industry players, with some arguing that the protocol needs a revamp as a result, Bloomberg writes.

The bank’s critics accuse it of having its cake and eating it too when it comes to the protocol, written in 2004 by Merrill Lynch, Citigroup and UBS Group as a way to reduce the amount of litigation surrounding brokers departing for other firms and since signed by about 1,400 brokerages, the news service writes.

On the one hand, industry insiders say JPMorgan wants to benefit from the protocol when it’s poaching brokers; on the other, it wants to keep many of its own brokers off limits by declaring them as not covered by the protocol, Bloomberg writes.

But the bank argues that advisors in its private banking group are salaried rather than commissioned and therefore don’t fall under the protection of the protocol, which stipulates that departing advisors can only take client contact information with them when leaving the firm for another, the newswire reports.

In December, JPMorgan argued that its former broker Salvatore Alesia, who departed for Morgan Stanley, wasn’t covered by the protocol because he worked in the private banking unit, as reported previously. And last June, the company went after six former private bankers who also left for Morgan Stanley, as reported previously. That case, as is typical with most restraining orders sought against defecting brokers, went to Financial Industry Regulatory Authority arbitration, where the parties settled for undisclosed terms, Bloomberg reports.

Morgan Stanley, meanwhile, has also argued that some brokers aren’t covered by the protocol. In May, it argued that the protocol doesn’t apply to its former advisor Brian Lynch, who left for LPL Financial affiliate Kathmere Capital Management, on the grounds that Kathmere isn’t a signatory — even though LPL is, as reported previously. Meanwhile, some brokerages, such as Charles Schwab, have opted out of the protocol altogether and go to court to fight departing brokers, Bloomberg writes.


At the same time, more than a dozen protocol signees want to have it both ways with the pact, according to the newswire. Merrill Lynch, one of the founding members, has argued that advisors who build their own books of business are covered by the protocol while those who get referrals from the firm are not, Bloomberg writes. And there’s no regulatory body governing the pact, according to the newswire.

The legal opinion on the protocol is mixed, according to the news service. JPMorgan’s apparent double standard was pointed out by Justice Jeffrey Oing of the New York State Supreme Court last May, when he rejected a motion to grant a restraining order that JPMorgan sought against three advisors leaving for another firm, the newswire reports.

“You either sign it or you don’t,” Oing said, referring to the protocol, Bloomberg writes. But this month, Oing’s own colleague Justice Geoffrey Wright ruled in favor of the firm in the case involving Alesia, according to Bloomberg. And when three of the six advisors who had settled with Finra last month went on to arbitration to expunge their employment records, which JPMorgan marked as subject to internal review, the panel ruled that the company defamed the brokers and ordered it to go through with the expunction, the news service writes.

The extent of litigation related to the protocol has prompted some insiders to call for a “Protocol 2.0,” Steven Kramarsky, who has litigated against JPMorgan, tells Bloomberg.

Until there is clarity on the application of the protocol, banks are likely to continue taking departing brokers to court, the news service writes — exactly what the protocol had hoped to end in the first place.