over a million several million dollars worth of stock options that he earned while he was employed at procter and gamble's european entities the district court held that mr so do waived his claim for those options through two agreements that he signed at around the time of his separation from the procter and gamble european entities we're here this morning to ask the court to reverse the district court's decision and to at a minimum rema case for trial on disputed issues of fact regarding the intent of the parties or alternatively to remain the case with directions to enter judgment in mr so deuced favor because we believe no reasonable juror could find that mr so do waived his claims and that there was a special separation in this case that qualified him to exercise his options after his germination there are two arguments that we made in the brief i'd like to focus this morning obviously your position is there was a special separation or there was not there was your honor was there was there two issues that we've briefed on appeal i want to focus on the stock option issue as opposed to the decision not to on seal part of the record as the court knows mr so do as a high level executive at procter and gamble employed by its european entities the options that he was granted over a period of years came from procter and gamble usa located right here in cincinnati the options that mr so do recede were a matter of contract between procter and gamble usa and mr so do they were not a matter of belgian law italian law they weren't part of the employment contract that mr so do had with procter and gamble europe or procter and gamble italy were dealing with a contractual matter between mr so do and procter and gamble usa here in cincinnati the options were governed by the one nine hundred ninety two procter and gamble stock plan again this is procter and gamble the usa not procter and gamble europe or procter and gamble italy according to the plan and judged to your question options could be exercised for as long as mr so do was employed or in the event of a special separation after his employment ended and the plan describes or defines a special separation as a terminations that is not for cause or terminations that's not in the shaded by the employee  term of art doesn't appear in either that's correct in fact the word stock options doesn't appear anywhere in the belgian agreement and there's only a limited passing reference to it in the italian agreement it's our position that mr so do when he left procter and gamble in december of two thousand and two left under circumstances that clearly qualified him for a special separation the details of of the facts leading to the separation are spelled out in a lot of detail in the italian agreement at appendix pages i don't have those with me but italian agreement makes it very clear that mr so do was not terminated for cause that this was a mutual separation initiated by proctor and gamble because there was no suitable position available for mr so do after he resigned from the joint venture in italy where he worked just prior to his separation from the company mr so do after he signed the agreements don't the language in the releases don't address that issue the the special separation is something that certain you get your degree there broad they release all claims i think i think they're they're more limited than that you know it's i think particularly in the italian agreement there are limitations on the the extent of the waiver the the paragraph seven that contains the waiver talks about claims with mr so do was giving up claims that arose based on belgian law and italian law and customs and policies in belgium and italy this case this claim arises from the idea of a special separation of qualif client or to exercise these options in a much later seems it strikes me as somewhat inconsistent with the separation that included releases judge what's odd about this case is that while the the two agreements included some releases there is no dispute that after mr so do sign those two agreements with the waivers that procter and gamble says apply to the stock options there's no dispute at all that after he signed those agreements he exercised stock options and was paid he exercised them according to the one thousand nine hundred two plan and he was paid by procter and gamble for those options pursuant to the plan an additional one point five million dollars that's in addition to the consideration that he received under the two separation is that consistent with the letter p's letter letter i'm not asking i just wanna know what you just described is consistent with that letter i believe part of that letter the first sentence of the piece letter says that mr so duz options will be handled according to the company plan in cincinnati ohio mr pease goes then on to describe deadlines for him to exercise those options in this judge or using ones that you say were exercised were consistent some more were consistent with those deadlines mr so do the ones that were granted were consistent with the deadlines are there any that were granted that weren't system of the deadlines there were some that didn't have any value at that time that mr so they weren't exercise correct correct so it's a little misleading to say that they were exercised inconsistent with that deadline well the they were exercised at that time because mr so do needed cash right so that was consistent with that letter at that time correct correct but judge well one thing that i think is important here and we didn't really say it in these terms in the brief but it appears that both sides were operating under the plan we have the p's letter saying yours and your options are going to be governed according to the plan mr so do exercised some options according to the plan again this is after the two agreements were signed and what we boiled down to is basically an agreement between the parties that they are proceeding according to the plan in the dispute that arises then is if we're proceeding according to the plan is this a special separation or not procter and gamble is taking the position that it's not mr so do is taking the position that it is so that the p's letter which you partially are relying on has deadlines which would only make sense if it was not especially separation on those deadlines correct your honor those those are deadlines that would be consistent with a separation that was not a special separation but when you go back to the agreements and you look at the circumstances under which mr so do left procter and gamble those facts describe ultimately what is a special separation he wasn't terminated for cause he didn't resign on his own those are the two elements that make up a special separation and the two settlement agreements signed by procter and gamble's attorneys and mr so do say just that there was no mention of misconduct there's no mention of the termination for cause there's no mention of voluntary resignation in this shaded by mr so do so we believe that that the issue and what started this case is is this a special separation or not as a matter of contract interpretation should we look at that piece love letter at all i mean seen you like part of it you don't like part of it but should we even look at general think you have to look at it  i mean is it isn't as a matter of law may we consider the contents of that i believe judge that you can because the adams case which we cited in our brief says when you're trying to determine the intent of the parties you look at all the surrounding circumstances in that letter i think is one of the surrounding circumstances and i don't think we need the peace letter to show that the parties were operating according to the plan i think the p's letter confirms at least that the plan was governing mr so duz options the dispute is whether or not this is a special separation or not p and g and mr pease apparently took the position that it was not that's why we're here we believe that that it was a special separation again based on the written words that are in the two agreements that mr so do was not fired for us and that he didn't initiate the i just want to touch quickly on this as further evidence that the parties did not intend to waive every possible fringe benefit claim that mr so do had we mention in the brief the free pension promise which is a very substantial benefit that mr so do will get it eight sixty there's no dispute as to that the no dispute that he will get it but it wasn't mentioned in the agreements procter and gamble has never taken the position that it was waived it is again a so that's not at issue not in terms of damages judge but i think it's further evidence that these two agreements were not in and of themselves intended to dispose of every possible client this procter and gamble say that it wasn't waived are they are they saying we have a legal right not to pay that but we are going to pay that in this case well they said two different things judge earlier in the district court procter and gamble argued that that benefit could not be waived that it wasn't a risk that type of benefit that as a matter of law couldn't be waived now in this court for the first time they've said that it morning may it please the court my name is michael glassman and i'm here on behalf of the procter and gamble company as is apparent from the party's briefs this case does involve the heavily negotiated departure in late two thousand and two a very senior business executive in lieu of terminations for cause which was under active consideration at that time the  sophisticated highly educated business person who was represented in connection with his departure by counsel who according to the plaintiff was a very expert labor employee an employment attorney who was also a labor law professor at the rome law school and he was also represented in connection with these or with these agreements by a union representative under the italian system while he was employed he got a basket of compensation and various fringe benefits that included stock options which he could have exercised while he still was in a boy and in connection with his departure the parties entered into we've heard not one but two settlement agreement releases and in exchange for his release is he received an extremely generous separation pay as consideration for entering into those agreements and releasing his rights and i don't think he would disagree with anything you've said so far but i don't think so even now so we want to get to the part where you disagree ok with well i think made and it's been argued here today that these are four million dollars roughly the fact is at that time they were worth nothing so it was into the future tense any stock option is like that i mean  or all fringe benefits including the exercise of the stock options in exchange for the significant consideration that was paid at the time that was at  he did not enter into this agreement and if the company proceeded with the different if he had gifts one of the things that was part of the package was something that might become valuable later how do you how you give up now the possibility that you'll be denied it when it becomes valuable later that's the trigger i'm having with some mean it that the assumption is on his part he says i got the stock options which means if they become valuable later i'll be able to cash them then later when they become valuable i can't cash them you say well you gave that up i mean there was no way to know you were giving that up if you thought you were getting the stock options well he could have carved that out  in the settlement agreement just like he carved out in the parties agreed to carve out in the belgium agreement in articles three and four certain other valuable things that he would get in future that it was made expressly clear that these were not part of the otherwise all inclusive release releases that he signed the star bonus the ice up the into international retirement agreement we're all carved out from from that and certainly as you say he's very sophisticated here very sophisticated maybe thought he didn't need to carve it out because it was already there he had stock options under the believe that you had it already i would respectfully disagree with that promise your honor and have it was the answer i mean just say it's not true but it's not true because being at that level of sophistication in the face of an overwise all inclusive release it is obligatory i would submit that you do carve it out otherwise you've given up everything in the face of releasing any claims including claims against the procter and gamble company the very entity that he sued in this in this litigation where there are some options exercised after the execution of these waivers there were and what if what if at that point procter and gamble just decided not to honor those well that's a hypothetical question i know it didn't happen what if that had happened if they were exercised after  learned they were in fact after the day they were signed to if i recall in the summer nineteenth two thousand and two and he exercised them later in december but under the terms of the agreement his employment still continued until december thirty first so he exercised them while he still was an employee before his and my question is what if he had done that and they've been denied proctor and gamble just didn't like paying him it's a hypothetical question would you now be arguing you didn't have to pay him because he waived everything when you signed it on the one thousand no because the release went into effect when his employment terminated on december thirty first two thousand and two and release went into i c s so they he was wasn't effective yet so he could still challenge it i'm not sure i understand the question he well it just seems like the your argument might prove too much your argument might prove that they don't even have to be to pay the ones that they did pay they just did it out of niceness because it seems to say as soon as they waived then gamma can do whatever they want and you can't sue them and that's my question is the one i'm not saying it's to spog no longer want to know what the answer is under the terms of the agreement he his employment terminated on december thirty first and he was entitled to  exercise the the options while he was employed which was until december thirty first hypothetically if but i thought your argument was on december nineteenth any right to sue about anything evaporated no because he still was employed it evaporated on december thirty first so as these are waivers as of the time that my new employment and and then do so to provide a complete answer under the certain of the options under the belgium plan under belgium law he had thirty days after or one month actually not thirty days but one month after his employment terminated to exercise those options and p and g respected that provision of the law as well it's really kind of somewhat of an academic point because he exercised them all while the employee still later in december does it weird how do you assess that argument with respect to that special separation why is that not an opening for him because it was he released everything in the release it was not a special separation he gave it is if it were a special separation counsel you heard argues that it fits the definition of a special separation which would offer more options even in the face of that really i heard the argument that it was a special separation but this was not the special separation under why not for several reasons your honor or of the fact of the circumstances under which he was the departure occurred it was a negotiated settlement under which he released all of his claims it was heavily negotiated in lieu of a determination for cause that was under active consideration at that time as we've gone into detail in our bruce morton that it just doesn't fit with the math of the natural reading of the definition that you would agree of the definition of a special separate well under the under the belgium plan under which certain of the stock options that were granted that he tried to exercise five years after his term in asian the terms under which those stock options were issued the plan provides that letter actually designating the departure as a special separation must be issued by the procter and gamble company by the defendant and do you dispute the definition that we've all been operating on as to what a special separation is for that is yes with respect to certain of those options i do dispute that because  provides that a letter has to be issue you refer to this in your briefs i'm i don't believe that specifically referred to in this i thought in your briefs you were you  maybe arguing the irrelevance but not arguing the definition of the of the definition of special separation well how you seem to be coming up with it is who argument for what a special separate well it's both with respect if the plan was later amended to remove fo options that were later issued the requirement to be issued a letter but i also think it is irrelevant because in this situation mr so do released all claims including the claim that this was a special separation it's not explicitly referred to in that i think is judge cook pointed out but the fact is the releases are so broad it says in both go that supersedes the definition different definition there are for certain of the options so what about the others them the others it is a different definition you don't need the letter but it is superceded by the rest of the  release in this particular case what's the relevance of the piece letter well we would submit with respect to the p's letter it is it is parole evidence that  need not not not to be consider but even if you consider even if it is considered i think the piece latter right in its entirety is entirely supportive of the defendant's position in this case in that he had the right to exercise them as i described earlier for the time period that he remained in employ until december thirty first and with respect to certain ones the one month after his terminations that's precisely what the peace letter says it and is entirely consistent with the broad release of his right to exercise any options after the fact so if it is not considered as we submitted ought not to be consider the releases are broad enough to cover it if it is consider it's entirely consistent we would submit the judge weber's decision was accurate either way whether or not the piece letter is is considered  it employers particularly global employers who have employees all across the globe must be able to rely on bro releases is like are present here and if they can't be subject to having employee ease or former employees come back five years after the fact and file cla s for things that they have released in in their waivers it would the trouble with that argument is it makes it very difficult for you to have a global release when something that's part of the release is something that will mature later because i think that because the litigant the people who enter into the agreement aren't going to be able to rely on the other party to conform to the to the element of the package that's going to mature later or maybe matures the wrong were maybe come to pass on a contingency later well i would say i mean life insurance policy you know you gave me a life insurance policy i thought it was a life insurance policy but five years later when ex died you refused to pay it and say that i waived that it's kind of that that's kind of hard then to use a life insurance policy as part of the bundle of things that the the th well i would concern i'm having my responding two ways to that your honor first of all it would have been very simple to carve it out it was church at that particular time it just simply was not of any value at that particular time and the fact that he exercised all of them that were above water even ones that were minimally above water is perfectly consistent with the fact that he knew he released everything at that time and would be unable to relate to exercise options down the road because even may just have been exercising caution given the fact that he read the p's letter i'm i suspect he didn't read it and he acts or size it because it was perfectly consistent with the release that that there was a hard and fast deadline that he had to exercise those options