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Firm Loses Appeal and Must Reinstate Veteran

September 23, 2011
Wachovia Securities LLC was found to have willfully violated a law protecting the right of veterans to return to their jobs, according to a U.S. appeals panel which upheld a lower court's ruling.  Wachovia is now owned by Wells Fargo.  As a result, the following lower court order was affirmed:
  • denying summary judgment to Appellant Wachovia Securities LLC ("Wachovia") on the ground that Appellee Michael Serricchio had adequately requested reinstatement to his prior employment position following a period of active military duty;
  • awarding liquidated damages, in an amount equal to the award of backpay - $389,453 - and granting equitable relief to Serricchio following a bench trial on damages after a jury found Wachovia liable for violating the Uniformed Services Employment and Reemployment Rights Act ("USERRA") in failing to reemploy Serricchio “promptly” to a position of like “seniority, status and pay” following his military service; and
  • denying Wachovia’s motion for judgment as a matter of law, or, in the alternative, for a new trial.
Circumstances re: Wachovia's Financial Adviser. Michael Serricchio, a member of the U.S. Air Force Reserve, was employed by Wachovia as a financial advisor.  In the wake of "9/11," Mr. Serricchio was called to active duty.  After serving his country, Serricchio was discharged from duty in October 2003 and requested reinstatement.  He was not re-hired by Wachovia before March 2004 and was reemployed at the commission rate he had received prior to activation, but without regard to the sizable book of business he had established in the months before his military service. In 2008 Mr. Serricchio won a jury trial against Wachovia in U.S. District Court for the District Court of Connecticut, which found that Wachovia’s actions violated USERRA because it had failed to reemploy Serricchio "promptly" and because the reemployment position offered to Serricchio was not of equivalent "seniority, status and pay" to his pre-service position.  In addition to being awarded $390K in back pay, Wachovia was ordered to reinstate Mr. Serricchio at a rate of $12,300 a month for 3 months (for training to regain his broker's licenses), followed by 9 months at the same salary, offset by any commissions Serricchio brings in. The district court later denied Wachovia’s post-trial motions, and Wachovia appealed.  Wachovia argued on appeal that it had not acted improperly by not reinstating Serricchio immediately, and that it had offered him a position comparable to the one he had held before being called to active duty.  The 2nd U.S. Circuit Court of Appeals in New York took up the case and, finding no error in the district court's thoughtful and well-reasoned opinions, it affirmed the lower court ruling.   [Reuters, 9/13/11] For further details, go to:  [The Judicial View, Serricchio v Wachovia Securities LLC, Case No. 10-1590 (C.A. 2, 9/13/11].

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