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The U5 Loophole

Illustration: Edel Rodriguez
Illustration: Edel Rodriguez
Illustration: Edel Rodriguez

Achieving success on Wall Street requires a wide mixture of skills: mastering technical subjects, such as math, economics and finance; earning and keeping the respect of others (and vice versa); and displaying good judgment. Yet apart from passing the Series 7 exam, an elementary test of securities industry rules and concepts, few other credentials are needed before a person can trade government bonds or advise on a big merger.

A clean U5 form, issued by Wall Street’s banks and brokerages, cannot be obtained, however, by undergoing schooling or passing tests.

The U5, or FINRA’s Uniform Termination Notice for Security Industry Registration, is a document that any banking or brokerage firm that a member of FINRA files when an employee departs, for whatever reason. FINRA, also called the Financial Industry Regulatory Authority, is Wall Street’s self-regulatory organization.

Don’t be fooled by the dull title, though; the U5 is one of the most important documents on Wall Street. And negotiations to discuss them can easily become a battleground where employers and employees fight over whether an upcoming exit will be classified as a resignation or a firing — and if problematic behavior is revealed.

On the U5 form, the employer must provide the reason for termination as “voluntary,” “permitted to resign” or “discharged” (or “deceased or “other”). If the employee has been “discharged” or “permitted to resign,” the employer is supposed to fill in a “termination explanation” box with a reason. Banks or brokerages must also indicate if the exiting employee is currently subject to (or was when terminated) an investigation by a foreign or domestic governmental body or a self-regulating organization, or is undergoing an internal review related to issues of fraud, the wrongful taking of property or a violation of industry standards of conduct. Criminal felony charges (such as some cases of sexual harassment) and some misdemeanor infractions are also to be recorded.

Blaine Bortnick, a lawyer who specializes in Wall Street employment practices, said the U5 is a powerful lever for banks and brokerages to wield: Compliance officers at a prospective employer can stop the hiring of anyone with only a slight infraction — if the matter is ever recorded on a U5. “Compliance always can put the kibosh on a hire if they don’t like the U5 regardless of what the business does,” he said. “They’ve got that power these days.”

Thus, a “marked up” U5 can end a Wall Street career for most people, according to Bortnick, and bank executives have almost military-like power over their employees as a result. Indeed, in New York (where many financial companies are headquartered), the state’s supreme court has ruled that an employer’s filing of a U5 is privileged from court proceedings; an employee cannot sue a firm for defamation based on a U5.

Certainly if employers were more honest on U5 forms about the precise reasons for employees’ departures, others companies could much more easily determine if a prospective hire had been terminated for cause, such as violating a federal regulation or law, or if the departure had been involuntary but connected to a strategic shift or cost cutting. If FINRA enforced a more rigorous standard of disclosure, this might prompt some employers to make different hiring decisions. To be sure, any such change in U5 disclosure practices would also raise substantive questions about employee due process and privacy. Further reforms might address if firms are arranging hasty, informal verbal negotiations to let problematic executives leave with a “voluntary” departure (when no termination reason must be noted on the U5) before these employers conduct their own internal review or refer a case to law enforcement.

In the wake of the #MeToo movement’s fostering of a rapid cultural shift in attitudes and employment practices, a trader or banker whose U5 shows allegations of sexual harassment or the breaching of a code of conduct might have greatly diminished job prospects.

Wall Street’s history is full of examples of banks that repeatedly ignored the gross misconduct of certain individuals because they generated a lot of revenue. But an honest U5 disclosure regime might pose reputational and legal risk for FINRA member firms.

Even though one FINRA rule seems to forbid sexual harassment and abuse, a bad actor is not prevented from landing a new job at a different firm if his (or her) previous employer fails to be forthcoming on a U5 form. Rule 5240 states, “No member or person associated with a member shall . . . engage, directly, or indirectly, in any conduct that threatens, harasses, coerces, intimidates or otherwise attempts improperly to influence another member, a person associated with a member, or any other person.”

Regulators in the United Kingdom have taken an approach to this issue that might be instructive for their U.S. colleagues. U.K. officials observed that individuals who left one firm for another with little disclosure about prior conduct problems caused a good deal of mayhem; these regulators even coined a phrase for this practice: “rolling bad apples.”

In a review ordered by the Bank of England and Chancellor of the Exchequer following the global financial crisis of 2009 and the Libor-fixing scandal, regulators said banks and brokerages needed to have much more detailed information about potential “rolling bad apples.” Officials laid out their recommendations in a June 2015 Fair and Effective Markets Review. The Financial Conduct Authority now requires firms to provide or obtain a “regulatory reference” on all new managerial and executive hires, including a detailed account of any disciplinary actions taken within the past five years.

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#MeToo on Wall Street: An Intern’s Battle With Barclays

Illustration: Edel Rodriguez
Illustration: Edel Rodriguez
Illustration: Edel Rodriguez

In June 2018 when Todd Richter left Barclays Capital in New York City, his new employer, Guggenheim Securities, wasted little time before issuing a press release that trumpeted the hiring of a new senior managing director for its health care investment-banking group.

Richter’s hiring was worth crowing about, since he had worked at the biggest firms on Wall Street — and at the highest levels.

Before Richter’s stint at Barclays, where he served as a vice chairman of global health care investment banking, he had been a managing director at Merrill Lynch. Prior to that he held the same title at Banc of America Securities. He spent much of his career at Morgan Stanley, where he headed health care equity research. And for 14 years Institutional Investor magazine picked him for its prestigious All-America Research Team.

During his years at Barclays, from 2015 to 2018, Richter was a so-called rainmaker who worked on some of Wall Street’s biggest deals. For instance, when Mars Inc. bought VCA for $9.1 billion in 2017, Richter’s 35-year friendship with VCA’s founder Robert Antin netted Barclays a $40.9 million advisory fee.

So why did Richter, who is now 62, leave Barclays in the middle of the following year?

What Juliet Cousins described to a reporter about her summer internship at Barclays in 2017 might hold the answer. (Her name is a pseudonym used here to protect the woman from retaliation and harassment.)

Cousins first met Richter in October 2016 when he interviewed her, then a college junior, for Barclays’ investment banking internship program for the following summer.

Interviewed at length by the Foundation for Financial Journalism in March 2019 and again this past July, Cousins described inappropriate workplace behavior by Richter including his making unwanted physical contact and comments about her appearance — as well as his initiating more overt sexual overtures and touching after her internship ended.

‘Why aren’t you cheating?

Cousins shared what she thought were Richter’s odd questions – biased even – during her job interview: For example, Richter asked her, “Why aren’t you cheating?” Cousins asked what he meant (wondering if this was a trick question), and he replied, “You know there are ‘women’s programs’ [at Barclays] so why are you in the general recruiting [pool]?” Cousins said she interpreted this comment as a reference to something like the bank’s Women’s Initiative Network, which is designed to increase the bank’s percentage of women hires.

A Barclays spokeswoman did not return a call seeking comment about Richter’s views about recruiting women to the bank.

After Cousins tried to clarify Richter’s unusual question, she recalled, Richter followed up with “You seem too weak to be doing investment banking. Why do you want to do this?” She spent 20 minutes calmly trying to convince Richter of her merits.

A few weeks later Richter called her to say she had the job and that he wanted her to work in his health care banking unit. Out of relief and happiness at getting a foot in Wall Street’s door, she shelved her concerns about the interview, she recalled.

When he was asked in June 2019 about that job interview, Richter said only that he was one of six or seven people who had interviewed Cousins.

A kiss upon arrival

In her March 2019 interview, Cousins also described what she considered to be an inappropriate interaction on her first day of work, when she stopped by Richter’s office: In front of some of her new colleagues, Richter kissed her on the cheek and told her that she looked beautiful. She thought this was an odd way for an investment banking managing director to greet a college student in the presence of other staff. “I think I knew he was single,” Cousins said. “And I just thought he was gay because why else would he do that?”

Richter, through a spokesman, late last month said that this incident did not happen and that the first he had heard of it was through a reporter and not Barclays human resources department.

Their brief encounters throughout that summer were in the same vein, she remembered: “He would walk by me in the hallway and would always compliment my outfit.” Another time, in an elevator bank, Richter told her that her “hair looked good pulled back.”

Richter was also adamant last month that he had not provided these compliments, saying, “I never remarked on her looks.”

But her summer at Barclays did not go as Cousins had hoped, she told the Foundation for Financial Journalism. She was not assigned to work in the health care banking group as Richter had suggested would happen. Instead, Cousins said she believed she had been shoehorned into another banking group (with its own group of summer interns) where she felt unwanted and unwelcome, adding that as a result she grew increasingly concerned about her prospects for a full-time job offer from Barclays.

About a week before the summer internship ended, Cousins went to see Richter for advice, and while he did not bolster her hopes for receiving a full-time job offer, he told her to stay in touch, she recalled. “Well whatever happens, here’s my cellphone number,” Cousins remembered Richter telling her. “Text me. We’ll get drinks.”

Two weeks or so after her internship ended, with no job offer from Barclays in hand, Cousins felt “really desperate,” she said, about her Wall Street employment prospects “and willing to take help from anyone.” She texted Richter during a vacation in Scotland to arrange a future meeting for job advice. Richter texted back that he also was on vacation and shared two photos with his image, claiming he was swimming on the French Riviera. He was wearing a Rolex. She commented on the watch and sent him a selfie. He noted that she was wearing an expensive Moncler parka and looked “cute/sexy,” adding, “Didn’t see you dressed at work like that.”

Shortly after the two exchanged these messages, Barclays informed Cousins that the firm did not intend to extend her a full-time offer, she said.

An elaborate dinner for a former intern

Cousins also described how later that summer the two shared drinks and dinner at a fancy Manhattan restaurant where Richter’s behavior veered into a new, overtly sexually suggestive direction that she said she did not want or encourage. Rather, when Richter asked Cousins to dine with him at Danny Meyer’s tony Union Square Cafe, she hoped he would view their meeting as “a mentor dinner” and understand that she, then only 21, wanted to enlist his connections to land a full-time job after graduation, she said.

Their Aug. 30, 2017, dinner started out innocently enough, with talk about Cousins’ family and friends, but quickly turned strange as the booze began to flow, she recalled. As Richter threw back vodka highballs, he pressed waitstaff to refill her wineglass “before I was even finished,” she said.

Richter emphasized her good fortune at having the opportunity to gain his advice, Cousins remembered. “You’re so special,” he told her. “No other intern [at Barclays] would be able to have dinner with a man like me,” adding that he had wanted to get to know her better over the summer but had held off because “it would have been inappropriate.” And he mentioned that “everyone in his [health care banking unit] had noticed how much he admired her.” Moments later Richter told her he had known during her initial interview that he had wanted to date her, and then he quickly shifted the conversation to her personal life, Cousins said. He called her “beautiful,” she recalled, and wanted to know why she did not have a boyfriend. He then asked her how many people she had slept with.

Richter, however, said late last month he never asked her about the number of men she had slept with.

Cousins remembered the questions from a much older man about her personal life had made her feel “incredibly uncomfortable” and that she gave him “a vague answer.”

In a June 2019 phone interview, Richter offered a radically different account of that dinner and the dynamic between the two of them: Richter initially offered to meet Cousins in his office, but she declined because she felt awkward about encountering former Barclays colleagues after not receiving a full-time job offer. “When we had dinner,” Richter recalled, Cousins “was not employed at [Barclays], and the whole purpose of the dinner was for me to kind of help her and give her advice.”

Richter did not remember excessive drinking at the dinner, saying only that he and Cousins had “split a bottle of wine.” Asked if they had discussed her personal life, he replied that he did not remember anything like that. “At no point did I ever think that I made her feel uncomfortable,” Richter said in the 2019 interview.

Just prior to this article’s publication, Richter was pressed again on Cousins’ allegations. While during his July 2019 phone conversation he had heavily relied on “I do not recall,” his responses in July 2020 were much clearer, flatly rejecting much of her account of his behavior, both during her internship and their dinner afterward.

‘We’re hitting another bar’

But Cousins recalled that she had found it challenging to rebuff Richter’s unwanted advances as the evening progressed. At the end of the dinner, Richter ordered an Uber. “We’re hitting another bar,” he told her. She felt confused, thinking that somehow the dinner meeting was turning into a date, but decided that being in a crowded bar with him would be safe. “He kept emphasizing how powerful he was,” she said. “So I agreed to go to the bar because it seemed like such a big opportunity to be spending time with someone so high up at the bank.”

On their way out of Union Square Cafe, however, Richter “started to touch my butt,” she recalled, adding that she ignored it and entered the Uber with him. They went to a bar at the base of the Residences at 400 Fifth Avenue, where he owned a penthouse condominium. “As we walked up the stairs to the bar, he touched my butt again,” she said. “I didn’t say anything because I was uncomfortable and scared.”

At the bar, Richter ordered two glasses of vodka for them, she recalled. When they sat down, Richter started “staring into my eyes and telling me how beautiful I looked,” Cousins said.

Asked by an interviewer why she did not bolt, Cousins replied, “I don’t know,” adding in retrospect, “I think I should have.”

Cousins also described a further incident that turned into an outright sexual invitation: She was contemplating whether to leave the bar at 400 Fifth Avenue when someone at Union Square Cafe called Richter’s cellphone to say her bag was still there. Richter suggested that they first go up to his penthouse apartment to get Henry, his dog, so they could walk together back to the restaurant. It was a ruse, she said in hindsight, designed to move her upstairs to have sex with him.

In Richter’s apartment things got tense, according to Cousins’ recollection: “He’s trying to cuddle with me,” she said. “And I just keep pacing back and forth to avoid him touching me. Then he stands up and puts his arms around me.” Added Cousins: “He was looking into my eyes saying, ‘What are you thinking?’ I said, ‘I want my bag.’ He called the restaurant and said that his girlfriend forgot her bag and we are coming to get it.”

Cousins recalled an uncomfortable Uber ride back to the restaurant: Richter kept saying she was “perfect” for him. After she retrieved her bag from the café, she told the driver to head to Grand Central, where she could take a train home. According to Cousins, Richter instead said he wanted her to stay with him. “It’s too late to take the train,” he told her.I’d feel much more comfortable if you slept in my guest bedroom and I’ll make you coffee in the morning.” Following her reply of “Absolutely not, Grand Central!” he leaned in and kissed her, she said. She tried to dodge the kiss but could not. “And then I ran away to Grand Central,” she added.

During his 2019 interview, Richter said he did not recall any of the more explicit details of the evening shared by Cousins with the Foundation for Financial Journalism and insisted that he did not try to pressure her to have sex with him, as she alleged. “I don’t cross lines,” he said. “I would never do anything to cross a line. To touch someone — never! It’s just not my nature.”

Nevertheless, Richter continued to chase Cousins after that late summer evening, she recalled during her interview. He texted her at 6:31 a.m. the next morning, “Great time,” adding that he was hungover and working from home. He asked about her weekend plans and said he wanted to get together again when he returned from Las Vegas. She wrote back that she still needed to find a job, thinking he might help. “You’re pretty special,” Richter replied. “Knew that the first time we met.”

In early October, Richter texted her again. “Just checking in,” he wrote, according to an archive of their text exchange. “How’s life? How’s the job search? Henry and I are in SoCA enjoying some late summer sun,” he wrote. “Was just thinking about you.”

That was their last communication, according to Cousins. And even though Richter had once promised to give her a list of friends and acquaintances at other Wall Street firms, he never did, she noted.

(Richter said last month he did not know the names of recruiters at other firms, so he could not have provided them. But he had kept his word, he insisted, giving her the names of several banks that he felt would not be concerned with her lack of a full-time Barclays offer.)

Later in the fall of 2017, The New York Times and The New Yorker published groundbreaking stories about systemic sexual harassment of women in the workplace; both outlets detailed lengthy allegations against Hollywood mogul Harvey Weinstein. Other exposés carried allegations of sexual assaults by powerful men including Charlie Rose, Les Moonves and Matt Lauer. Although incidents of sexual harassment and assault have been prevalent on Wall Street for decades, the financial industry has yet to have a public reckoning over them: Wall Street’s ample profits, coupled with an unofficial code of silence, make it easy to cover up such unsavory incidents with cash settlements and ironclad nondisclosure agreements.

Cousins was determined to not let that happen with Richter, she recalled.

Weighing the decision to tell her story

In December 2017, after Cousins secured a job offer in a different industry, she reported what Richter had done to Barclays’ human resources department.

Why did she wait? Cousins said she feared that Barclays might retaliate against her and she wanted to first land a full-time job. For a little while she even thought that Richter’s behavior might be typical of Wall Street norms and was unsure that reporting it to Barclays representatives would make a difference, she later explained. And while she wrestled with whether to report Richter, Cousins happened upon a copy of Time magazine’s annual Person of the Year issue. The Dec. 7, 2017, cover story, titled “The Silence Breakers,” spotlighted a brave group of women who had taken great risks to come forward to report workplace sexual harassment and assault. Seeing that dramatic cover story prompted her to realize that no rules or laws can work if women fail to speak up.

An executive moves on

For his part, Richter shared in the 2019 interview his recollections of his last days at Barclays. In “late December” of 2017 representatives of Barclays human resources department asked to speak with him, he said. “They started asking me questions about [Cousins] and it was clear that something was amiss,” he recalled. “I was very upset.” A few days later, Richter asked for another meeting. “Look,” he said he told the human resources executives, “I take my reputation really seriously. I did not sleep with this woman. I didn’t touch this woman. But if I made her uncomfortable in any way, shape, or form, I’m sorry. I’m happy to meet with her to apologize.”

Richter remembered being instructed, “Do not reach out. Do not talk to her. Don’t do anything.” He noted that in his 39 years of working on Wall Street, “I’d never been accused of anything, any impropriety, either financial or personal.”

In January 2018 Richter was attending JPMorgan Chase’s health care conference in San Francisco when his boss, Richard Landgarten, asked him to accompany him on a walk, Richter said. Landgarten, the head of Barclays’ health care group, told him the “firm is very concerned about this situation,” referring to Cousins’ complaint.

Richter recalled that he told Landgarten, “I’ve done nothing wrong. If I made her uncomfortable, I’ll apologize. One hundred percent of my dialogue with her when she was working there in the summer was in my office, and I gave her really good advice, and I’ll stand by that.”

By then, Richter asserted, he had already decided to leave Barclays – not because of Cousins’ allegations — but because he had not gotten along with Landgarten since 2015. Landgarten had not paid him a sufficient bonus for the Mars-VCA deal and had made fun of Richter’s relationship with VCA in a group email, he claimed.

Richter offered to retire, he recalled. At the time he did not have a new full-time Wall Street job offer, although he had just started teaching at Columbia Business School. Landgarten used the alleged incident with Cousins to get rid of him, Richter claimed. “I just felt like [Barclays was] being vindictive to me, and I was happy to get out of there,” he said, adding that after some back-and-forth with the human resources department, Barclays let him resign rather than retire and, in exchange for not joining a competitor for three months, receive a portion of his unvested Barclays shares. He signed a separation agreement with Barclays in mid-March 2018.

Despite Barclays’ requiring Richter to take what Wall Street calls “garden leave” (a three-month noncompete period when an ex-employee stops working to let nonpublic confidential information grow stale), he worked with full pay and benefits on a pair of pending deals; this included, he said, advising Zoetis on its $2 billion acquisition of Abaxis. And nothing about his various interactions with Cousins was entered on his U5, according to Richter. (A U5 is a regulatory document filed within 30 days of an employee’s departure from a FINRA member firm, which notes whether the exit was voluntary or involuntary and if disciplinary or regulatory issues arose.)

[module align=”left” width=”half” type=”aside”] Learn more about what FINRA member firms must report about departing employees in “The U5 Loophole.”[/module]

Cousins recalled that a Barclays representative phoned her on March 21, 2018, with news about Richter, saying, “We took your case seriously and we took appropriate action.” When she asked a question about him, the representative replied, “Todd Richter is leaving the firm.” That was the whole conversation, according to Cousins: “I should’ve asked more questions but I didn’t,” she said. “I was really happy.”

On June 1, 2018, Richter left Barclays, and five days he later joined Guggenheim Securities. He noted that he has known its CEO, Alan Schwartz, for years. (Schwartz previously served as Bear Stearns’ final chief executive.) Richter said he is making the same amount of money as he earned at Barclays but his title is not as lofty. “It wasn’t about the money,” Richter continued, declining to provide specifics about his new compensation. “It really was just an opportunity to be at kind of a special place,” he said.

Cousins told the Foundation for Financial Journalism that when she heard about Richter’s move to Guggenheim Securities she became upset about a rumor that Barclays gave him a big bonus upon his exit. (Richter declined to discuss his Barclays compensation, other than to say he felt the firm shortchanged him.)

In a June 2019 statement provided to this reporter, Guggenheim confirmed Richter’s assertion that no alleged incident involving Cousins appeared on his U5 form: “When Guggenheim Partners hired Todd Richter, it did what it always does. It thoroughly conducted a background check and reviewed his past employment history, including reviewing the U-5 filed by his past employer with FINRA. This review produced no suggestion whatsoever of any aspect of the alleged behavior about which you inquire.”

Reaffirming that he did not remember any inappropriate or sordid details of his evening with Cousins, Richter expressed contrition: “If this woman feels this way, I feel awful,” he said. “I do! I mean, I don’t want to sound like a victim or whatever. But I’m not a bad actor. I’m not a bad guy.”