consideration received in severance agreement is required before a loss was filed filed in a title seven or equal pay act claim now the us supreme court is address the tender back issue twice one was in hole which is a federal employees liability act case and they came down and said it on the basis of the public policy of the act we want people to be able to seek compensation for wrongs there is a statutory provision in that case but they came down on the basis of public policy so really and that's how i pronounce it maybe pronounce some other way that was a age discrimination employment act case  and there was another older workers benefits protection act provision there but again similar to hold they came down on the basis of public policy which was that we want to be able to make sure that people are able to receive compensation for the discrimination that they incur they incur and there is a particular focus on employees when they receive some sort of compensation through a s already have spent it by the time you know they're ready to sue and they may not as a practical matter be able to pay the money back before they sued so  case though are you just so i understand what you're arguing here are you arguing that while the tender back is a requirement the employee or whoever should be given a reasonable amount of time after the suit is filed to tender back the amount yes that's that's my argument that's in fact what ms mcclelland attempt and that would be a question of fact i suppose i mean in this case it might not because she obviously offers she she did even before the they had to file the first response ready is a reasonable amount of time in other words if so there's there's two ways of looking at tender back is you know it's either up a prerequisite or a pay or it's something that you have to do within a reasonable amount of time well would be a reasonable amount of time well i think it depends on the case  example if someone receives one hundred thousand dollars of you know seven so agreement they may not be able to do it within a few weeks says ms mccollum was able to her compensation was relatively nominal those four thousand  dollars but so i think it depends on the case and that could be discussed to with a judge to rule sixteen conference or something like that and i then what about ratification because as you just pointed out that the amount was nominal so how does the economic to west coming into play are you just saying that economic direction is a question of fact that someone needs to decide whether it existed here i think that's true i also think the other argument is well she ratified by taking sixteen months to heal innocence and your response is i understand it is she was under duress at the time she signed the contact and that direct continued to exist because she needed the money and that seems to be a question of fact right whether the director and i i would agree ok but i do i do think that the district judge on the issue of basically it said it's pay before the lawsuit is filed did they say that or did they not get to the timing question that i don't remember them getting where in the opinion did they get to the time in question i believe your honor maybe i review interpreted the opinion incorrectly but i believe there were five justices that came down in the actual count of not not requiring a tender back before the lawsuit was filed no tender back should not be required course the u s supreme court's never addressed that issue regarding title seven or the equal pay act most of the cases that we've cited in support of the idea that it's not required before a lawsuit filed deal with title seven cases most of them focus on the issue of you know it would be as a practical matter the plaintiff may not have the money to pay back immediately so it should not be required as a prerequisite to filing a lawsuit and i think that's the the reasonable position to take as a practical matter equal pay outs a little bit different you know the title seven also right to sue thing which makes it more acute for plaintiffs under those circumstances because they've isn't going to know whether when the right to sue letters actually issued and the timing may be totally inappropriate you know if you have to sue within ninety days you may not have any ability to pay them the money back within those ninety days state laws differ and you have up to three years so i think there's a particularly acute reason in title sudden cases for there not to be a prerequisite of tendering back before the lawsuit is filed because of the procedural issues involved in the title reasoning in that case as well as other similar cases the at will cases unpublished opinion from tennessee and others about the rationale of not requiring  so i would urge the court to follow the reasoning of those cases the other issue i want to focus on is you know there wasn't any prejudice of course to the defendant in this case i mean she offered the money back as you know applied particularly to this case where's the prejudice so why are we were we're acquiring someone to file before a lawsuit is actually  filed and that's a practical issue i think that also should be taken into account but you know again if i think more important is the broader view you know in sometimes people may not be able to pay that money back so that is an issue that could be worked out with the courts rule sixteen conference or whatever regarding payment schedule and that that's how i would situation final couple issues i want to address is the defendant that actively in this case urges the court to consider some alternative grounds for affirming i don't believe those raised at the district court level and under rule fifty six federal civil procedure fifty six it should have been raised if it's going to be an issue on appeal they also want to argue again the no one involuntary issue the court denied summary judgment on that issue they did not file across appeal so i don't think it's right for a consideration here either and  the name is philip coggan and i'm counsel for the e e o c as amicus and i am here to provide the court with the commission's view of this tender back rule and its application to this case i would like to pick up it's just a thought to parse question on what is reasonable and the sort of timing issue section three eighty one of the restatement of contracts does set out what is a reasonable time within which to return money such that ratification cannot be a person cannot be deemed to have ratified a contract if they return the money within that period of time and mixing up tender back and ratification may in other words there are two separate concepts there's a question of whether she ratified by doing nothing in the sixteen months and there's a separate question of whether she tendered back and it's clear she did tender back if that's undisputed in the only question that on that issue is whether it's a condition precedent filing suit correct and i think the supreme court's decision to break rule as a subset of the ratification doctrine not necessarily a completely distinct concept because the notion behind the tender back rule is that if the person retains the benefit of an agreement beyond the point that they can avoid the agreement they can be deemed to have ratified the agreement through their conduct that's what tender that's the point of the tender back rule where you could both ratify the agreement during the first fourteen months and then tender back on the fifteenth month and to the tender back w not excuse your ratification that's sure there are other ways of ratifying that don't involve tender back but tender back doesn't have any independent meaning other than that it has the significance of ratifying and otherwise avoidable agreement so i think that i hope that addresses your questions on that issue what about the condition precedent issue right so we certainly think the e e o c is view is that this tender back rule should not appl fours with this case right i accept it but if there is significant reasoning in that decision that says for policy reasons the tender back rule should not apply to title seven case him it applies for a second what were you going to say about the timing right so we certainly think that it should not be a condition proceeding to a complaint i mean that's how do you figure it out is that a reasonable time period after filing is it or just a reasonable time period generally i mean what the student give several factors as mr piper said it's going to depend on the circumstances but it really comes down to prejudice to the other side whether you know someone retains the money beyond a point that you know they can speculate with that money at the other person's detriment or it creates these expectations or you know reliance issues but here there was absolutely no prejudice because before the defendant even had to respond to the last step to decide that right because that would just be aware you man of the district court if we agreed with your argument that it or held it was a condition precedent i back binder besides those things that strike me that we think there's a pure legal question about whether the tender back rule should apply at all and if it does whether should be a condition proceed and rice well those are legal questions but then i assume we agree with you on both ben it's ratification means that someone intends to run it through except an agreement that they otherwise could avoid and they do that through some course of conduct that being payments over time that could be one way of ratifying an otherwise  avoidable agreement but the issue is that you have to show intent to ratify that the person has to intend to want to accept the agreement and here there's no reason to believe that mr mcclellan intended to ratifying the payments that is a factor now economic is a different issue but excepting the payment is correct the factor that you would consider in considering whether it would be a factor but so the agreement has to be knowing involuntary under the common law and that's this court's decision adams versus films according to her testimony which must be credited at this point she didn't even know what she had waived she was saying that when she signed this that she thought it was just unemployment or i'm sorry certain benefits but it's an issue of fact in the district court should have let it go as an issue of fact right i mean i think a jury could find that she didn't knowingly waive her rights but the discourse that there's at least a jury question on that and then it is a question as an equitable doctoring it probably is but i'm just curious you know the answer to that affirmatively i can't say prepared for that question i mean i think that it makes sense that it would be a jury question because there's a legal standard and you have to apply the facts of the legal standard but i see my time is up i'm happy to answer any more questions that the court has let me not thank you thank you no from the circuit it has not been addressed i don't think there's any cases that have addressed title seven and the tender back issue other than the seventh circuit and the second circuit which have both sided with the position that tender back is required as a precondition of being able to sue the fleming case by judge posner in one thousand nine hundred four it predated  so questions were raised although frankly judge posner in his opinion specifically cites the a d n a as being a statute that would create an exception to the rule that he was laying out but the seventh circuit subsequent to just four years ago in the lawson case held that the very claims that ms mcclellan has asserted here title seven and the e p a the equal pay act claims were barred by the failure to tender back in addition to that the second circuit has specifically addressed the issue as well in the tongue case which is which interestingly enough had title seven and a d a claims involved in that recall specifically but the tongue case is an interesting one because the district court addresses two claims the a d e a claim and the title seven claim and it the district court level which is before decided the district court does not distinguish between a and title seven instead as both of them are dismissed under the under the common law tender back rule while the case is up on appeal to the second circuit the supreme court decides who prey and says that a d e a claim cannot be waived by failure to tender back and as in accordance with that the second circuit then says ok the a claim survives but the title seven claim is gone the title seven claim is still subject to the same common law rule because there is no exception so that's the first point i'd like to make the second point that i want to make in response that economic duran's would at best create avoidable contract not a void contract and there's a significant difference there avoidable contract can be ratified of a void contract cannot be ratified it is  nothing can be done to resurrect it restatement section seven talks about voidable contracts and what it says is when you have a voidable contract the party who is claiming that there is some problem with it has an election and has two choices in that circumstance they can either ratify it or they can elect to try to avoid it but once you make your  was four hundred not to put her under arrest a month there were four hundred a payment whatever was four thousand over the course of time but the money didn't need for money economic dresses surely sufficient it could  it is sufficient if there is in fact economic duran's which i dispute and that's one of the alternative arguments but i don't agree with you your honor on that point that the economic dress ended the moment she sighed and walked out she may still be hard up for money but the dresser itself that caused her to sign is gone pay if i get an employee so i'm making money putting food on the table i'm now on in a way i need that money if i wait in the contract i no longer get that money how is that over the economic duress so the dress is what caused her to sign the agreement that's that's the the whole point of economic darius is that it leads me to do something i didn't want to do and that doing something is signing the agreement and it's different than a situation where there is fraud in the fact  'm general fried where somebody may sign an agreement and be unaware that the agreement they signed could be avoided for some reason specifically because there was some fraud committed  in connection with that agreement but i disagree with you that economic duress is fish and then it would be a let's say that we disagree that economic dire mission then wouldn't it be a question of fact at that point as to whether this was economic to ross as to the ratification principle maybe you went on tender back i don't know but as to that principle i'm not sure i understand last i still don't think so and because there are multiple ways that one can ratify and specifically accepting payments accepting the benefits under the contract would be one of those and clearly she did that she walks out of that room and for the next eight weeks receives a check and she cashes each one of them if she had wanted to to challenge those she should've rejected those checks and sa i've changed my mind i want to avoid the contract but the point i want to make out of restatement section seven is that a party has the election has the choice of whether to ratify and continue on with the contract that's voidable or to seek to avoid it but once you make your election you're set in that election you can't you can't ratify the contract in this case one of the ways it's ratified is by failing to tender back at the time of filing suit or before filing suit you have any cases for that principle that tender back is a condition precedent by a lengthy verses yes i think that i think that some of the cases we've cited i  and the court this court held that in fact the claim was ratified the release of the receipt claim was ratified by failing to tender back in big injure those multiple claims there's in a risk to claim under the labor management relation act and in that case again the court said that the failure to tender back resulted in the release being ratified and enforceable to block those claims the most interesting case from this court is the harbor sin opinion in which there were multiple claims there's an aid to a claim in f m l a claim recent claim and in a d e a claim first one was a disability claim so there's all four of those claims and the court parses out what are we going to do with those four claims with the failure to tender back and what the court does is say because of a in the specific language of the a d n a that claim at least will be saved it's not think the case law of this court shows no indication that anything other than an a d e a claim would require any exception to the tender bat rule those are published decisions of our court that would be persuasive authority not as any sort of binding that's correct and they don't specifically address title seven none of them address title seven the only cases that address title seven again are the the seventh circuit cases in the seven sam says before or app the same time he commences percy cracked and she turned her back at the same time her no she died after after i notified her that after i notified her attorney that there was a release  and that the claim had been released it was at that point that that the attempted tender pact was made by that time the contract has already been ratified it's been ratified by if for no other reason if not a timing issue earlier if not for accepting payments over the course of eight weeks even if they wasn't ratified for one of those two reasons it certainly was ratified when she files the suit assumes indicates rely on the f l a the federal employers liability act is the basis for its decision instead it will light on common law principles and what it said is that a contract that is void not avoidable but void  contract that is void cannot be ratified by failing to tender back and the court specifically started to discuss the supreme court specifically started to the script discuss the ways in which a contract can be void and it  void it could not be ratified so that's so tender back is irrelevant in that case so that is the whole point that i'm trying to make that hold does not support their position in the least because it's simply saying that if the contracts void and for whatever reason it's void tender back is not a requirement because it doesn't make any sense they're going to tender back doesn't create a contract that didn't exist in the first place so that's my point with hold let me address that very quickly brain the supreme court cites the language from from the act in by the way the the regulations that have been adopted by the department addressing the  why should it just be a reasonable time period well i think under the common law there's multiple ways in which a contract is is ratified in and only one of those is the reasonable time period benefits is a second way and take but i'm talking about with regards to when they have to tender back that well but failing to tender back before you sue is an act that has the effect of  ratifying and that point you've lost your election to try to come back later and say wait a second i want to rethink what i just did now i've decided i want to try to avoid by ratifying you've lost your right to avoid i see my time's up  if the court would like to hear the balance of my discussion very briefly two minutes or one minute and i would personally make it thirty seconds thirty seconds so what the court says is it relies on that very specific language in the and quote and that it quote may not waive and quote the claim and my position is that what the supreme court is saying is it is effectively void as the claim as to any other claim and they specifically say that as a statutory matter the release cannot bar her a d e a claim in respective and this is the key language irrespective of the politically of the contract as to other claims the supreme court expressly was recognizing that other claims would be barred by a release and failure to tender fact the court has any other questions i'd be glad to address those thank you very obviously i disagree with counsel's interpretation of what it's in our briefs what we believe regarding to the tender back issue the older workers benefits protection act speaks to no one knowing involuntary not the tender back the tender back issues with dressed in other parts of the opinion however certain and sam's two opinions cited by counsel were both unpublished and but in both of those cases the plaintiff never tendered back the money never attempted to which is obviously much different from this case same thing with fleming fleming was a published case from the seventh circuit pre but in that case the plaintiff was tenacious  but i was aware of those cases i thought there was a little unusual i don't know why the complaint would have to be amended i think this is just a separate issue regarding the tender back i just see that as an unnecessary stuff i think the question is more of what is a reasonable time to make the payments under the circumstances it would apply it would depend on the case i don't think there's a clear answer to what reasonable