the only issue in this case is whether the language of the general release and covenant not to sue complies with the unique and stringent requirements of established by older workers benefit protection  that issue has already been decided in the negative your honor said by the eighth circuit court of appeals in time for vs which considered a waiver which was materially identical to the language of the waiver before the court this morning the eighth circuit stated because the release of claims signed by chance for this part of i b m was involuntary terminations program did not satisfy the statutory waiver requirements of the older workers benefit protection act we reversed counsel would you consider that to be in a factual finding or a legal holiday i would consider that to be a legal finding your honor i would there are three reasons that i would say that your honor first of all if you look at the in four different places in the time for a decision and goes through the language and compares it to the requirements of the old b p a the only factual issue that is different are remotely just english  from our case in time for to this case is that mr charm for it asked for an explanation of the waiver and i b m did not give it to him however we think that's independent fact it's a distinction without a difference back and look at the language of the waiver excuse me secondly the waiver language itself says you have not relied on any representation of promises or agreements of any kind whether written or oral makes you in connection with your voluntary decision to accept the terms of the severance package so the waiver language itself omits that and finally and most importantly your honor is what i would say is that the primary requirement the first requirement of the o w b p a is that the waiver at a minimum must be written written in a manner calculated to be understood by such individual or by the average individual and it's it's not a certified class is that correct it's a punitive class or something along with us last but i will tell but let me just frame where my concern is here that that obviously when you go through the elements of whether you're going to apply that is the one person class different then or the one person different then who we're talking about here i mean who was that one person so let's say that one person in the other case was the janitor and let's say the people in your class are all middle managers and would that make a difference in terms of you know i'm not trying to be you know put social in terms of what there be a difference in how you could write the language and expect it to be understandable depending on say the education levels of the individuals the record here your honor does reflect that one of the individuals is in fact a janitor but in response to your question were upper management people and that to be an upper management person you had to have a college degree and you had to have certain amount of experience and say that the other individual was a person that maybe had a high school diploma or maybe even didn't graduate from high school i would think that in looking at the language that might be a factor your honor two things one although we did raise the issue of the issue for pollution i would suggest that this court that although that is something that's available my understanding of the case law is that that is at the discretion of the trial court it's been almost two years appeal before we got here and i would suggest that the court decide this case on the merits of the language in response to the question that you just asked your honor our contention is that no individual regardless of his level of education or background would be able to understand the language of i v m's waiver there really are four problems with that language your hon ask you this obviously the law contemplates that you could write a waiver in a way that people could understand it i really can never you know that that's the thing i figure you know if it has to go to my level but  so what's what could they have said that would have made this understandable i don't think it's our burden your honor to write language for a for the company but what i would suggest to you your honor first of all is that they not use in the same document both a release education is not familiar with the term covenant not to sue so it's right in that regard it's precluded from including within the document the covenant that it feels is really important to  the chapter of which by happenstance was written by mr bowles partner and that language does not use the term covenant not to so i'm not necessarily endorsing that language but it's written in a very much clearer fashion often this line  directly i don't understand how so i don't understand you to be raising this why even the main part of the waiting for the release not understanding what a covenant not to sue is having had the terms defined as being functionally interchangeable what they're reading it is i gave up my plane earlier but now here's an exception that says that i can still file suit under the what's written in a manner calculated to be understood by the lay individual thank you liability under the ada it does not in any way say you can't challenge the release they covet not to sue is a separate part of the agreement which as i think you've correctly observed her advise for a remedy if the employee breaches the promise not just to buy awarding attorneys fees or other damages the e e o c in its post regulations said that you can't penalize an employee for challenging an age waiver by saying the waiver doesn't really apply here that the work simply do not support that the words simply say if you still want any of these released claims you'll be liable for attorney's fees to i b m but if you were to sue under the a d a s that you won't be liable for attorney fees and that's all it says it doesn't say you may doesn't say that we expect you to it doesn't say the waiver you've just given us proves we doesn't mean anything it's simply saying if you were to go ahead and sue contrary to your release then you won't be held liable for attorney's  all agree with that to be sure tom for disagrees the eighth circuit disagrees we acknowledge that of course but the time for taste is rife with specific factual allegations which let the courts are then say and i think this is the ruling in the case that  given the lack of clarity in the agreement and not or not an independent ground but and i b m s declaration that tells harvard what it meant by the language we hold the agreement is not written in a manner calculated to be understood by if i understand your argument are you saying that there are two different mechanisms for determining whether or not there's been a violation and you're saying that the time for case one and that the individual prong whether or not the individual actually he didn't understand it he asked for clarification they wouldn't give it to him he had an alternative understanding and then there's that ultimate ruling i just read to you i don't think we can sit here today and say well the circuit was really evaluating just the second strand rather than the first  s declamation to tell time for what it meant by the language you can't ignore that that's there and it's connected with and and not an or i can't really obviously if they had clarified it then it would been clarified and then you want to have this problem the and if he didn't understand it that must mean it was written a way to be clear your honour's i also believe that if you simply go through the agreement itself and get away from the rather tortured construction i submit the circuit engaged in it is in fact very clear it's very