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Securities Compliance Sentinel Analysis of cutting-edge securities industry issues

You Have To Complete A U-5, But What Should You Say

Posted in Broker-Dealer Regulation, FINRA Compliance, Registered Representatives

Within thirty days after a registered representative leaves a member-firm, the member-firm must file a U-5 with FINRA stating the reasons for the departure.  Those instances where the registered representative leaves on her own accord without any controversy are easy. 

The challenge you face is when the reasons for departure are not so clean.  In those instances, you may be faced with a dilemma regarding what to state because an adverse statement on a U-5 may make a registered representative unemployable. 

Depending upon where you are situated in the country, U-5 reporting may be absolutely protected speech (meaning you cannot be sued for its content) or speech entitled to a qualified privilege (meaning you can be sued under certain circumstances).  Regardless of what law applies, you should exercise caution when completing a U-5. 

The most important thing when completing the U-5 is to make sure that you accurately detail the reason for termination, but do so without editorializing about the former associated person.  The last thing you want to do is create a scenario where the former associated person sues you for some improper remark.

At the same time, you must have a description that states the reasons for departure.  If the detail is vague, another member firm may look past the U-5 and associate with a registered representative who should be out of the industry.  In that case, you may be buying yourself only temporary piece or mind; the subsequent member firm and/or FINRA may have an issue with you for an incomplete description.

The completion of a U-5 can be tricky business, but it is best to err on the side of caution and include a clear, succinct and accurate description of the reasons for termination.  If you have done your homework on the front end when you decided to separate from the registered representative, then you should not be concerned about that person or another member firm looking back at you in the future.