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1 Jeffrey Neil Young (Maine SBN 3874)

Patrick McTeague (Maine SBN 621)

2 MCTEAGUE, HIGBEE, CASE, COHEN,

WHITNEY & TOKER, PA

3 P.O. Box 5000

Topsham, ME 04086

4 Telephone: 207.725.5581

Facsimile: 207.725.1090

5 E-mail:

jyoung@me-legal.com

E-mail:

pmcteague@ me-legal.com

6 Attorneys for Plaintiffs

7 Teresa Demchak (SBN 123989)

Morris J. Baller (SBN 048928)

8 GOLDSTEIN, DEMCHAK, BALLER,

BORGEN & DARDARIAN

9 300 Lakeside Drive, Suite 1000

Oakland, CA 94612

10 Telephone: 510.763.9800

Facsimile: 510.835.1417

11 E-mail:

tdemchak@gdblegal.com

E-mail:

mballer@gdblegal.com

12

Christopher Platten (SBN 111971)

13 WYLIE, MCBRIDE, PLATEN & RENNER

2125 Canoas Garden Avenue, Suite 120

14 San Jose, CA 95125

Telephone: 408.979.2920

15 Facsimile: 408.979.2934

E-mail:

cplatten@wmpr.com

16

17

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

18

SAN JOSE DIVISION

19 WILLIAM SYVERSON, PATRICK BOONE, Case No. C 03 04529 RMW

LEE DESHLER, ROBERT FLOWERS, BARRY

20 21

GERARD, TINA GLEISNER, THOMAS GOMEZ, EDWIN “DANA” GOODLOE, ROLF MARSH, DANIEL MOCZAN, JAMES PAYNE,

THIRD AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL

and ANTONIO RIVERA, individually and on

22 behalf of others similarly situated,

23

Plaintiffs,

24

v.

25 INTERNATIONAL BUSINESS MACHINES CORPORATION,
26 Defendant.
27

28

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1

Plaintiffs William Syverson, Patrick Boone, Lee Deshler, Robert Flowers, Barry Gerard, Tina

2 Gleisner, Thomas Gomez, Edwin “Dana” Goodloe, Rolf Marsh, Daniel Moczan, James Payne, and

3 Antonio Rivera, by and through the undersigned counsel, complain of Defendant International

4 Business Machines Corporation (“IBM” or “Defendant”) as follows:

5

INTRODUCTION

6

1. This is an employment discrimination action brought by William Syverson, Patrick

7 Boone, Lee Deshler, Robert Flowers, Barry Gerard, Tina Gleisner, Thomas Gomez, Edwin “Dana”

8 Goodloe, Rolf Marsh, Daniel Moczan, James Payne, and Antonio Rivera, individually and on behalf of

9 all similarly situated individuals including, but not limited to, those individuals listed in Exhibit A,

10 pursuant to the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (“the ADEA”).

11 Plaintiffs allege that Defendant IBM has engaged in a company-wide and/or division-wide policy,

12 pattern or practice of employment discrimination, both intentional and systemic, on the basis of age in

13 targeting employees who are 40 years of age and older for termination as part of IBM’s corporate

14 restructuring and image redefining. Plaintiffs seek declaratory and injunctive relief, back pay

15 (including fringe benefits), double damages for willful violation of 29 U.S.C. § 623, front pay if 16 reinstatement is not possible, and lost future wages and benefits; and an award of costs, expenses, and

17 attorneys’ fees; all for themselves individually and on behalf of all similarly situated individuals.

18

JURISDICTION, VENUE AND INTRADISTRICT ASSIGNMENT

19

2. Jurisdiction. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331,

20 in that it arises under the laws of the United States, specifically, the ADEA, 29 U.S.C. § 621, et seq.

21

3. Venue. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b). IBM is

22 subject to personal jurisdiction in this District in that it maintains facilities and business operations in

23 this District, employed plaintiffs Thomas Gomez and James Payne and other similarly situated persons

24 in this District, and committed some of the discriminatory acts alleged herein in this District against

25 these plaintiffs and named plaintiff Tina Gleisner.

26

4. Intradistrict Assignment. Venue is proper in the San Jose Division of this Court

27 pursuant to Local Rule 3-2(c)-(d) because a substantial part of the events which give rise to the claims

28

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1 asserted in this Complaint occurred in San Jose. In particular, IBM employed Thomas Gomez and

2 James Payne and other similarly situated persons in Santa Clara County, California, and there

3 committed acts of age discrimination in employment as alleged in this complaint against these

4 plaintiffs and named plaintiff Tina Gleisner.

5

PARTIES

6 Plaintiffs

7

5. At all times relevant to this complaint, Plaintiffs were aggrieved persons as defined by

8 the ADEA, 29 U.S.C. § 630.

9

6. At all times relevant to this complaint, Plaintiffs were and are members of a class of

10 persons protected by the ADEA, 29 U.S.C. § 626(b), in that at the time he or she was terminated by

11 IBM, each Plaintiff was 40 years of age or older in accordance with 29 U.S.C. § 631(a), was a citizen

12 or lawful resident of the United States, and had been employed by IBM until he or she was

13 discriminatorily terminated from such employment on account of his or her age.

14 William Syverson

15 7. Plaintiff William Syverson was born on March 15, 1950. He currently is, and at the
16 time of his termination from IBM was, a resident of Colchester, Vermont. He worked for IBM for 22
17 years. He began his career with IBM in February 1980, and ultimately attained the position of Senior
18 Engineer for IBM in Essex Junction, Vermont. He received consistently good performance
19 evaluations throughout his career with IBM. On June 4, 2002, IBM notified Mr. Syverson that
20 effective August 5, 2002, he would be terminated from his employment as part of the Microelectronics
21 Division Resource Action (MDRA). IBM’s termination of Mr. Syverson was discriminatorily based
22 on his age.
23 8. IBM offered severance packages to employees terminated as part of the MDRA,
24 including Mr. Syverson, contingent upon signing a General Release and Covenant Not To Sue (“IBM’s
25 Release”). Mr. Syverson accepted IBM’s severance package and signed IBM’s Release. IBM’s
26 Release subsequently was found invalid and not a bar to actions under the ADEA by the Ninth Circuit
27

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1 Court of Appeals in Syverson v. International Business Machines Corp., 461 F.3d 1147 (9th Cir.

2 2006), petition for rehearing denied, 472 F.3d 1072 (9th Cir. 2007).

3

9. On October 23, 2002, Mr. Syverson filed a Charge of Discrimination alleging age

4 discrimination with the Vermont Attorney General’s office and the EEOC. On or about July 9, 2003,

5 the EEOC issued him a Notice of Right to Sue on his Charge. Copies of that Charge and Notice are

6 attached to this Third Amended Complaint as Exhibits 1 and 2, respectively.

7 Patrick Boone

8

10. Plaintiff Patrick Boone was born on August 1, 1957. He currently is, and at the time of

9 his termination from IBM was, a resident of Milton, Vermont. He worked for IBM for 24 years. He

10 began his career with IBM on May 30, 1979, and ultimately attained the position of Advanced

11 Technology Specialist for IBM in Essex Junction, Vermont. He received consistently good

12 performance evaluations throughout his career with IBM. On August 17, 2003, IBM notified Mr.

13 Boone that effective October 17, 2003, he would be terminated from his employment as part of the

14 Technology Group Resource Action (TGRA). IBM’s termination of Mr. Boone was discriminatorily

15 based on his age.

16

11. Mr. Boone accepted IBM’s severance package and signed IBM’s Release.

17

12. On February 26, 2004, Mr. Boone filed a Charge of Discrimination alleging age

18 discrimination with the Vermont Attorney General’s office and the EEOC. The EEOC has not yet

19 acted on Mr. Boone’s Charge. A copy of the Charge is attached to this Third Amended Complaint as

20 Exhibit 3.

21 Lee Deshler

22

13. Plaintiff Lee Deshler was born on September 16, 1948. He currently is, and at the time

23 of his termination from IBM was, a resident of Williston, Vermont. He worked for IBM for 25 years.

24 He began his career with IBM in January 1977, and ultimately attained the position of Technical

25 Support Representative for IBM in Essex Junction, Vermont. He received consistently good

26 performance evaluations throughout his career with IBM. On November 28, 2001, IBM notified Mr.

27 Deshler that effective January 31, 2002, he would be terminated from his employment as part of the

28

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1 IBM Microelectronics Resource Action (MERA). IBM’s termination of Mr. Deshler was

2 discriminatorily based on his age.

3

14. Mr. Deshler accepted IBM’s severance package and signed IBM’s Release.

4

15. On September 20, 2002, Mr. Deshler completed a questionnaire which he provided to

5 the Vermont Attorney General’s Office detailing his charge of age discrimination. On December 2,

6 2002, Mr. Deshler filed a Charge of Discrimination alleging age discrimination with the Vermont

7 Attorney General’s Office and the EEOC. On or about July 24, 2003, the EEOC issued him a Notice

8 of Right to Sue on his Charge. Copies of that questionnaire, Charge and Notice are attached to this

9 Third Amended Complaint as Exhibits 4, 5, and 6, respectively.

10 Robert Flowers

11

16. Plaintiff Robert Flowers was born on February 14, 1944. He currently is, and at the

12 time of his termination from IBM was, a resident of New Alexandria, Pennsylvania. He worked for

13 IBM for almost 35 years. He began his career with IBM in January 1967, and ultimately attained the

14 position of Support Systems Service Representative for IBM based out of Greensburg, Pennsylvania.

15 He received consistently good performance evaluations throughout his career with IBM. On April 2,

16 2002, IBM notified Mr. Flowers that effective May 3, 2002, he would be terminated from his

17 employment as part of the IBM IGS Integrated Technology Services Resource Action (IITS). IBM’s

18 termination of Mr. Flowers was discriminatorily based on his age.

19

17. Mr. Flowers accepted IBM’s severance package and signed IBM’s Release.

20

18. On January 22, 2003, Mr. Flowers contacted the EEOC and complained that he had

21 been discriminatorily discharged by IBM because of his age. The EEOC sent him a questionnaire the

22 same day, which Mr. Flowers promptly completed and returned on January 28, 2003. The Pittsburgh

23 office of the EEOC subsequently scheduled an appointment with Mr. Flowers on February 28, 2003, at

24 which time he filed a Charge of Discrimination alleging age discrimination with his state fair

25 employment practice agency and the EEOC. On or about July 29, 2003, the EEOC issued him a

26 Notice of Right to Sue on his Charge. Copies of the letter showing Mr. Flowers’ initial contact with

27 the EEOC on January 22, 2003, the questionnaire which he prepared on January 28, 2003, and the

28

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1 Charge and Notice are attached to this Third Amended Complaint as Exhibits 7, 8, 9, and 10,

2 respectively.

3 Barry Gerard

4

19. Plaintiff Barry Gerard was born on May 14, 1952. He currently is, and at the time of

5 his termination from IBM was, a resident of Jericho, Vermont. He worked for IBM for over 25 years.

6 He began his career with IBM on June 27, 1978, and ultimately attained the position of IT Specialist

7 for IBM in Essex Junction, Vermont. He received consistently good performance evaluations

8 throughout his career with IBM. On October 1, 2003, IBM notified Mr. Gerard that effective

9 December 31, 2003, he would be terminated from his employment as part of the IBM Application

10 Management Services Resource Action (AMSA). IBM’s termination of Mr. Gerard was

11 discriminatorily based on his age.

12

20. Mr. Gerard accepted IBM’s severance package and signed IBM’s Release.

13

21. On January 7, 2004, Mr. Gerard filed a Charge of Discrimination alleging age

14 discrimination with the Vermont Attorney General’s office and the EEOC. On or about June 13, 2005,

15 the EEOC issued him a Notice of Right to Sue on his Charge. Copies of that Charge and Notice are

16 attached to this Third Amended Complaint as Exhibits 11 and 12, respectively.

17 Tina Gleisner

18

22. Plaintiff Tina Gleisner was born on January 20, 1951. She currently is, and at the time

19 of her termination from IBM was, a resident of Portsmouth, New Hampshire. She worked for IBM for

20 nearly 29 years. She began her career with IBM in 1973, and ultimately attained the position of

21 Product Marketing Manager, working out of her home in New Hampshire under the direction and

22 control of, and reporting to, IBM’s Software Group Division in San Jose, California. She received

23 consistently good performance evaluations throughout her career with IBM. On May 22, 2002, IBM

24 notified Ms. Gleisner that effective June 21, 2002, she would be terminated from her employment as

25 part of the IBM Software Group Resource Action (ISWG). IBM’s termination of Ms. Gleisner was

26 discriminatorily based on her age.

27

23. Ms. Gleisner did not accept IBM’s severance package nor did she sign IBM’s Release.

28

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1

24. On December 2, 2002, Ms. Gleisner filed a Charge of Discrimination alleging age

2 discrimination with the New Hampshire Human Rights Commission and the EEOC. On or about

3 January 3, 2005, the EEOC issued her a Notice of Right to Sue on her Charge. Copies of that Charge

4 and Notice are attached to this Third Amended Complaint as Exhibits 13 and 14, respectively.

5 Thomas Gomez

6

25. Plaintiff Thomas Gomez was born on October 18, 1950. He currently is, and at the time

7 of his termination from IBM was, a resident of San Jose, California. He worked for IBM for over 28

8 years. He began his career with IBM in 1974, and ultimately attained the position of Senior

9 Mechanical Designer for IBM in San Jose, California. He received consistently good performance

10 evaluations throughout his career with IBM. On January 27, 2004, IBM notified Mr. Gomez that

11 effective March 29, 2004, he would be terminated from his employment as part of the IBM Systems

12 Group Resource Action (ISGA). IBM’s termination of Mr. Gomez was discriminatorily based on his

13 age.

14

26. Mr. Gomez accepted IBM’s severance package and signed IBM’s Release.

15

27. On November 8, 2004, Mr. Gomez filed a Charge of Discrimination alleging age

16 discrimination with the California Department of Fair Employment and Housing and the EEOC. On or

17 about January 10, 2005, the EEOC issued him a Notice of Right to Sue on his Charge. Copies of that

18 Charge and Notice are attached to this Third Amended Complaint as Exhibits 15 and 16, respectively.

19 Edwin “Dana” Goodloe

20

28. Plaintiff Edwin “Dana” Goodloe was born on December 6, 1952. He currently is, and

21 at the time of his termination from IBM was, a resident of Carrollton, Texas. He worked for IBM for

22 over 18 years. He began his career with IBM on June 3, 1985, and ultimately attained the position of

23 Technical Sales Specialist for IBM in Dallas, Texas. He received consistently good performance

24 evaluations throughout his career with IBM. On or about August 31, 2003, IBM notified Mr. Goodloe

25 that effective October 31, 2003, he would be terminated from his employment as part of the IBM IGS

26 Integrated Technology Services Resource Action (GSTS). IBM’s termination of Mr. Goodloe was

27 discriminatorily based on his age.

28

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1

29. Mr. Goodloe accepted IBM’s severance package and signed IBM’s Release.

2

30. On April 9, 2004, Mr. Goodloe filed a Charge of Discrimination alleging age

3 discrimination with the Texas Commission on Human Rights and the EEOC. On or about May 28,

4 2004, the EEOC issued him a Notice of Right to Sue on his Charge. Copies of that Charge and Notice

5 are attached to this Third Amended Complaint as Exhibits 17 and 18, respectively.

6 Rolf Marsh

7

31. Plaintiff Rolf Marsh was born on September 19, 1942. He currently is, and at the time

8 of his termination from IBM was, a resident of Nine Mile Falls, Washington. He worked for IBM for

9 approximately 16 years. He began his career with IBM in June 1987, and ultimately attained the

10 position of Senior IT Specialist for the Business Consulting Services Unit of IBM’s Global Services

11 Division in Spokane, Washington. He received consistently good performance evaluations throughout

12 his career with IBM. On March 4, 2003, IBM notified Mr. Marsh that effective April 4, 2003, he

13 would be terminated from his employment. IBM’s termination of Mr. Marsh was discriminatorily

14 based on his age.

15

32. Although Mr. Marsh’s termination was not a part of a group resource action, Mr. Marsh

16 was given and accepted the same severance package and signed the same Release that IBM provided to

17 employees it terminated as part of the group resource actions.

18

33. On July 8, 2003, Mr. Marsh filed a Charge of Discrimination alleging age

19 discrimination with the New York Division of Human Rights and the EEOC. On or about August 22,

20 2003, the EEOC issued him a Notice of Right to Sue on his Charge. Copies of that Charge and Notice

21 are attached to this Third Amended Complaint as Exhibits 19 and 20, respectively.

22 Daniel Moczan

23

34. Plaintiff Daniel Moczan was born on January 21, 1949. He currently is, and at the time

24 of his termination from IBM was, a resident of Brooklyn, New York. He worked for IBM for

25 approximately 24 years. He began his career with IBM in 1978, and ultimately attained the position of

26 Account Customer Engineer for IBM’s Global Services Division at JPMorgan Chase in Brooklyn,

27 New York. He received consistently good performance evaluations throughout his career with IBM.

28

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1 On April 2, 2002, IBM notified Mr. Moczan that effective May 2, 2002, he would be terminated from

2 his employment with IBM. Upon information and belief, the termination was part of the IBM IGS

3 Integrated Technology Service Resource Action (IITS). IBM’s termination of Mr. Moczan was

4 discriminatorily based on his age.

5

35. Mr. Moczan accepted IBM’s severance package and signed IBM’s Release.

6

36. On May 2, 2002, Mr. Moczan filed a Charge of Discrimination alleging age

7 discrimination with the EEOC. On or about August 21, 2003, the EEOC issued him a Notice of Right

8 to Sue on his Charge. Copies of that Charge and Notice are attached to this Third Amended Complaint

9 as Exhibits 21 and 22, respectively.

10 James Payne

11

37. Plaintiff James Payne was born on May 18, 1946. He currently is a resident of Bend,

12 Oregon. At the time of his termination from IBM he was a resident of Morgan Hill, California. He

13 worked for IBM for 23 years. He began his career with IBM in 1979, and ultimately attained the

14 position of Senior Mechanical Design Specialist for IBM in San Jose, California. He received

15 consistently good performance evaluations throughout his career with IBM. On July 15, 2002, IBM

16 notified Mr. Payne that effective August 15, 2002, he would be terminated from his employment as

17 part of the Storage Systems Group Resource Action (STSG). IBM’s termination of Mr. Payne was

18 discriminatorily based on his age.

19

38. Mr. Payne accepted IBM’s severance package and signed IBM’s Release.

20

39. On October 17, 2002, Mr. Payne filed a Charge of Discrimination alleging age

21 discrimination with the California Department of Fair Housing and Employment and the EEOC. On or

22 about July 9, 2003, the EEOC issued him a Notice of Right to Sue on his Charge. Copies of that

23 Charge and Notice are attached to this Third Amended Complaint as Exhibits 23 and 24, respectively.

24 Antonio Rivera

25

40. Plaintiff Antonio Rivera was born on May 9, 1952. He currently is, and at the time of

26 his termination from IBM was, a resident of Poughquag, New York. He worked for IBM for 22 years.

27 He began his career with IBM in 1980, and ultimately attained the position of Program Manager for

28

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1 the Business Innovations Services Group in IBM’s Global Services Division in Somers, New York.

2 He received consistently good performance evaluations throughout his career with IBM. On May 29,

3 2002, IBM notified Mr. Rivera that effective June 28, 2002, he would be terminated from his

4 employment as part of the IGS Headquarters and Staff Resource Action (GHQS). IBM’s termination

5 of Mr. Rivera was discriminatorily based on his age.

6

41. Mr. Rivera accepted IBM’s severance package and signed IBM’s Release.

7

42. On February 22, 2003, Mr. Rivera wrote Cari Dominguez at the EEOC and provided

8 detailed information showing what he alleged was blatant age discrimination. On March 14, 2003, Mr.

9 Rivera filed a Charge of Discrimination alleging age discrimination with the EEOC and again provided

10 similar data. On or about July 31, 2003, the EEOC issued him a Notice of Right to Sue on his Charge.

11 Copies of the February 22, 2003 letter and that Charge and Notice are attached to this Third Amended

12 Complaint as Exhibits 25, 26, and 27, respectively.

13 Defendant

14

43. Defendant IBM is a corporation organized under the laws of the State of New York,

15 with corporate headquarters in Armonk, N.Y.

16

44. IBM is the second largest information technology company in annual revenues in the

17 world. It manufactures and sells computer hardware, software, infrastructure services and consulting

18 services. It employs over 320,000 people worldwide, including approximately 130,000 in the United

19 States. For fiscal year 2006, IBM reported revenues of $91.4 billion.

20

45. At all times relevant to this complaint, IBM has been engaged in an industry affecting

21 commerce as defined by 29 U.S.C. §§ 630(a) and (b). At all times relevant to the complaint, IBM has

22 operated at various locations throughout the United States, including, but not limited to, in San Jose,

23 California; Tucson, Arizona; Boulder, Colorado; Atlanta, Georgia; East Fishkill, Endicott,

24 Poughkeepsie, Somers, and Yorktown Heights, New York; Charlotte and Research Triangle Park,

25 North Carolina; Beaverton and Portland, Oregon; Austin, Texas; and Essex Junction, Vermont.

26

27

28

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1

FACTS RELATING TO THE PATTERN OF INTENTIONAL AND

SYSTEMIC AGE DISCRIMINATION IN GROUP AND INDIVIDUAL

2

TERMINATIONS BY IBM

3

46. Upon information and belief, in 1992, IBM recorded a nearly $5 billion loss, which was

4 at that time the largest single-year corporate loss in United States’ history.

5

47. Subsequently, in February 1993, IBM announced its first ever involuntary termination

6 of employees.

7 Group Terminations/Resource Actions
8 48. Since February 1993, and pertinent to the time period covered by this Third Amended
9 Complaint, from July 1, 2001 through May 4, 2005, IBM conducted involuntary group terminations of
10 its workforce, called Resource Actions, purportedly intended to eliminate job functions and to reduce
11 costs.
12

13

49. Upon information and belief, since July 1, 2001 through May 4, 2005, IBM

14 implemented at least 50, and perhaps more, Resource Actions throughout the United States. These

15 Resource Actions have resulted in tens of thousands of IBM workers being terminated from their

16 employment.

17

50. IBM carried out the Resource Actions pursuant to standardized practices, procedures

18 and forms developed by its corporate office and implemented uniformly throughout the company.

19 Specifically, in determining which employees to terminate in the Resource Actions, IBM developed

20 and utilized uniform procedures for “work elimination” and “staff reductions” that allowed managers

21 directly responsible for making termination decisions to use highly subjective criteria and to substitute

22 ageist stereotypes for objective, job-related and age-neutral criteria.

23

51. In implementing the Resource Actions, IBM engaged in a pattern or practice of age

24 discrimination by treating younger employees more favorably than older employees including, but not

25 limited to, in the following specific ways:

26

a. Generally refusing to consider older individuals selected for termination,

27 including Plaintiffs, for placement elsewhere in the company ;

28

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1

b. Retaining employees under the age of 40 and/or substantially younger than

2 individuals selected for termination to perform work formerly performed by individuals 40 years of

3 age or older who were selected for termination, including Plaintiffs;

4

c. Hiring individuals under the age of 40 to perform work formerly performed by

5 individuals 40 years of age or older who were selected for termination, including Plaintiffs;

6

d. Recruiting extensively for new employees at colleges and universities, where

7 IBM could expect largely to find job candidates under the age of 40, and exempting IBM employees

8 who were recent college/university graduates for consideration for termination;

9

e. Terminating employees over the age of 40 in order to no longer have to

10 contribute funds to their Future Health Accounts;

11

f. Making age-related statements and/or stereotypical comments based on age; and

12

g. Relying upon highly subjective criteria and ageist stereotypes in determining

13 which employees to target for Resource Action terminations resulting in adverse impact upon older

14 workers.

15

52. Under the Older Workers Benefit Protection Act (“the OWBPA”), 29 U.S.C. §

16 626(f)(1) , an employer implementing a group termination must provide information relating to the job

17 titles and ages of those selected for termination and the corresponding information relating to

18 employees in the same job titles who were not selected for termination. Review of such information

19 for 33 Resource Actions implemented by IBM from July 1, 2001 through May 4, 2005, reveals that

20 employees 40 years of age or older were significantly more likely to be terminated than employees

21 under the age of 40, and the likelihood of being terminated increased substantially with each

22 incremental increase above the age of 40.

23

53. In addition to the foregoing facts, Plaintiffs William Syverson, Patrick Boone, Lee

24 Deshler, Robert Flowers, Barry Gerard, Tina Gleisner, Thomas Gomez, Edwin “Dana” Goodloe,

25 Daniel Moczan, James Payne, and Antonio Rivera are “similarly situated” in that:

26

a. All were 40 years of age or older when IBM terminated them;

27

b. All were terminated by IBM as part of Resource Actions that span the relevant

28 time frame of July 1, 2001 through May 4, 2005;

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1

c. All were subjected to Resource Actions tainted by IBM’s culture of age bias;

2

d. All were subjected to the same uniform and subjective procedures for “work

3 eliminations” and “staff reductions;”

4

e. All had the same performance evaluation system in place at the particular time

5 they were terminated;

6

f. All were satisfactory (or better) performers just before they were terminated and

7 during their IBM careers;

8

g. All were provided OWBPA “Age and Title Information Reports” stating they

9 were being selected for termination “on the basis of one or more of the following criteria[:] … work

10 elimination … [and/or] staff reduction and restructuring;”

11

h. All were offered the same severance package formula;

12

i. All were eligible for the same or substantially similar benefits;

13

j. All were presented with the same Release; and

14

k. Upon termination, IBM followed the same corporate-developed and uniform

15 separation checklist and procedures with each of them.

16 Individual Terminations

17

54. In addition to conducting group terminations or Resource Actions, during the period

18 July 1, 2001 through May 4, 2005, IBM also terminated, through terminations independent of

19 Resource Actions, hundreds if not thousands of other employees in the United States.

20

55. These individual terminations were part of IBM’s nationwide plan and/or practice of

21 intentionally or, in effect, periodically purging its workforce of older workers.

22

56. IBM carried out the individual terminations due to work elimination and/or staff

23 reductions pursuant to standardized practices, procedures and forms developed by its corporate office

24 and implemented uniformly throughout the company. Under these procedures managers directly

25 responsible for making such termination decisions are delegated authority to make such termination

26 decisions based on their own subjective preferences and/or engage in conscious or unconscious ageist

27 stereotypes and biases, rather than relying on neutral, objective and job-related criteria and individual

28

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1 qualifications. As a result of these practices, older workers are discriminated against in selection for

2 terminations due to work elimination and/or staff reductions.

3

57. In addition, IBM failed to provide sufficient oversight of these managers’ decisions to

4 insure that they were not being carried out with age-discriminatory intent and/or did not have an

5 adverse impact on older workers.

6

58. In implementing the individual terminations due to work elimination and/or staff

7 reductions, IBM engaged in a pattern or practice of age discrimination by treating younger employees

8 more favorably than older employees including, but not limited to, in the following specific ways:

9

a. Generally refusing to consider older individuals selected for termination,

10 including Plaintiffs, for placement elsewhere in the company;

11

b. Retaining employees under the age of 40 and/or substantially younger

12 than individuals selected for termination to perform work formerly performed by individuals 40 years

13 of age or older who were selected for termination, including Plaintiffs;

14

c. Hiring individuals under the age of 40 to perform work formerly

15 performed by individuals 40 years of age or older who were selected for termination, including

16 Plaintiffs;

17

d. Recruiting extensively for new employees at colleges, where IBM could

18 expect largely to find job candidates under the age of 40, and exempting IBM employees who were

19 recent college/university graduates for termination;

20

e. Terminating employees over the age of 40 in order to no longer have to

21 contribute funds to their Future Health Accounts; and

22

f. Making age-related statements and/or stereotypical comments based on

23 age.

24

59. On information and belief, the impact of IBM’s individual terminations was similar to

25 that of its group terminations. Employees 40 years of age or older were significantly more likely to be

26 terminated than employees under the age of 40, and the likelihood of being terminated increased

27 substantially with each incremental increase above the age of 40.

28

13

5676-8

THIRD AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL

CASE NO. C 03 04529 RMW

Case5:03-cv-04529-RMW Document107 Filed11/06/07 Page15 of 19

1

60. In addition to the foregoing facts, the individually terminated Plaintiff Rolf Marsh is

2 “similarly situated” to other individually terminated older employees, to the other Plaintiffs and to

3 other similarly situated persons terminated in Resource Actions in that:

4

a. All were 40 years of age or older when IBM terminated them;

5

b. All were subjected to personnel actions tainted by IBM’s culture of age

6 bias;

7

c. All had the same performance evaluation system in place at the

8 particular time they were terminated;

9

d. All were satisfactory (or better) performers just before they were

10 terminated and during their IBM careers;

11

e. All were offered the same severance package formula;

12

f. All were eligible for the same or substantially similar benefits;

13

g. All were presented with the same Release; and

14

h. Upon termination, IBM followed the same corporate-developed and

15 uniform separation checklist and procedures with each of them.

16

(VIOLATIONS OF THE ADEA)

17

61. Plaintiffs reallege and hereby incorporate by reference all allegations contained in

18 Paragraphs 1-60 as if set forth in their entirety.

19

62. Defendant engaged in the acts of age discrimination complained of above.

20

63. By the conduct described above, Defendant intentionally violated the rights of Plaintiffs

21 and other similarly situated persons secured to them by the ADEA.

22

64. Defendant’s conduct in using the subjective” work elimination” and “staff reduction”

23 procedures and criteria in implementing the Resource Actions and for individual terminations also had

24 an adverse impact on Plaintiffs and other similarly situated persons and was neither job-related nor

25 justified by reasonable factors other than age, and therefore violated the rights of Plaintiffs and other

26 similarly situated persons secured to them by the ADEA.

27

28

14

5676-8

THIRD AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL

CASE NO. C 03 04529 RMW

Case5:03-cv-04529-RMW Document107 Filed11/06/07 Page16 of 19

1

65. As a result of the violations of the ADEA rights of Plaintiffs and other similarly situated

2 persons, they were terminated from gainful employment by Defendant and suffered actual damages in

3 the form of lost wages, lost fringe benefits, loss of earning capacity, loss of career opportunities,

4 expenses incurred in obtaining alternate income and in other respects, and are entitled to equitable and

5 injunctive relief, including “rightful place” and “make whole” remedies, and monetary relief to remedy

6 and compensate for the effects of Defendant’s unlawful actions.

7

66. In its discriminatory actions as alleged above, IBM acted with malice or reckless

8 indifference to the rights of the Plaintiffs and other similarly situated persons, thereby entitling them to

9 an award of double damages.

10

67. Plaintiffs have already incurred and will incur in the future substantial attorneys’ fees

11 and expenses incurred in prosecuting this action, which fees and expenses are recoverable pursuant to

12 29 U.S.C. §§ 626(b) and 216(b).

13

68. To remedy the violation of the rights of Plaintiffs and other similarly situated persons,

14 Plaintiffs request that the Court award them the relief prayed for below.

15

PRAYER FOR RELIEF

16

WHEREFORE, Plaintiffs and others similarly situated pray that this Court enter an Order

17 providing as follows

18

1. An injunction against IBM preventing it or its agents, servants, and employees

19 from engaging in further acts of discrimination against the Plaintiffs and all others similarly situated

20 pursuant to § 4(b) of the ADEA, 29 U.S.C. § 626(b);

21

2. An order requiring IBM to: (a) reinstate Plaintiffs and other similarly situated

22 persons to their former positions; (b) award Plaintiffs and other similarly situated persons back pay in 23 an amount to be determined; (c) in the alternative to reinstatement, award Plaintiffs and other similarly

24 situated persons front pay in an amount to be determined; (d) award Plaintiffs and other similarly

25 situated persons lost fringe benefits in an amount to be determined; (e) award Plaintiffs and other

26 similarly situated persons liquidated damages in an amount equal to their actual damages; and (f)

27

28

15

5676-8

THIRD AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL

CASE NO. C 03 04529 RMW

Case5:03-cv-04529-RMW Document107 Filed11/06/07 Page17 of 19

1 award Plaintiff and other similarly situated persons such other and further relief as the Court deems

2 just and proper.

3

An Order awarding Plaintiffs and other similarly situated persons their reasonable costs,

4 including litigation related expenses and attorneys’ fees.

5

6 Dated: November 6, 2007 McTEAGUE, HIGBEE, CASE, COHEN, WHITNEY & TOKER, PA

7

8

By

JEFFREY NEIL YOUNG

9

PATRICK McTEAGUE

Attorneys for Plaintiffs

10

11

GOLDSTEIN, DEMCHAK, BALLER, BORGEN & DARDARIAN

12

13

By /s/ Teresa Demchak

TERESA DEMCHAK

14

MORRIS BALLER

Attorneys for Plaintiffs

15

16

WYLIE, McBRIDE, PLATTEN & RENNER

17

18

By

CHRISTOPHER PLATTEN

19

Attorney for Plaintiffs

20 JURY DEMAND
21
Plaintiffs demand trial by jury of all claims to the extent allowed by law, including but not 22
limited to the provisions of the ADEA and 29 U.S.C. § 626(b). 23

24 Dated: November 6, 2007
25

McTEAGUE, HIGBEE, CASE, COHEN, WHITNEY & TOKER, PA

26

By

27

JEFFREY NEIL YOUNG

PATRICK McTEAGUE

28

Attorneys for Plaintiffs

16

5676-8

THIRD AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL

CASE NO. C 03 04529 RMW

Case5:03-cv-04529-RMW Document107 Filed11/06/07 Page18 of 19

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
5676-8

GOLDSTEIN, DEMCHAK, BALLER, BORGEN & DARDARIAN By /s/ Teresa Demchak
TERESA DEMCHAK MORRIS BALLER Attorneys for Plaintiffs WYLIE, McBRIDE, PLATTEN & RENNER By CHRISTOPHER PLATTEN Attorney for Plaintiffs
17
THIRD AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL CASE NO. C 03 04529 RMW

Case5:03-cv-04529-RMW Document107 Filed11/06/07 Page19 of 19

1

CERTIFICATE OF SERVICE

2

I, Teresa Demchak, hereby certify that on November 6, 2007, I electronically filed Plaintiff’s

3 Third Amended Complaint with accompanying exhibits with the Clerk of the Court using the CM/ECF

4 system which will send notification of such filing(s) to the following: Jeffrey D. Wohl, Esq. and Kerri

5 N. Harper, Paul, Hastings, Janofsky & Walker, LLP, 55 Second Street, 24th Floor, San Francisco, CA

6 94105-3441, jeffwohl@paulhastings.com, kerriharper@paulhastings.com; Aaron L. Agenbroad, Esq.,

7 Alison B. Marshall, Esq. and Glen D. Nager, Esq., Jones Day, 51 Louisiana Ave., N.W., Washington,

8 D.C. 20001, alagenbroad@jonesday.com, abmarshall@jonesday.com, gdnager@jonesday.com.

9

10

/s/ Teresa Demchak

Teresa Demchak (SBN 123989)

11

GOLDSTEIN, DEMCHAK, BALLER, BORGEN

& DARDARIAN

12

300 Lakeside Drive, Suit 1000

Oakland, CA 94612

13

Telephone: 510.763.9800

Facsimile: 510.835.1417

14

E-mail:

tdemchak@gdblegal.com

15

16

17

18

19

20

21

22

23

24

25

26

27

28

THIRD AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL CASE NO. C 03 04529 RMW 5676-8

 
 1 JEFFREY D. WOHL (Cal. State Bar No. 120791) KERRI N. HARPER (Cal. State Bar No. 217377)
2 PAUL, HASTINGS, JANOFSKY & WALKER LLP 55 Second Street, 24th Floor
3 San Francisco, CA 94105-3441 Telephone: (415) 856-7000
4 Facsimile: (415) 856-7100

5 Attorneys for Defendant International Business Machines Corporation
6

7

8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

11 WILLIAM SYVERSON, RUTH ALICE BOYD, DALE CAHILL, JACK
12 FRIEDMAN, PAUL GRAMKOWSKI, SYLVIA JONES, ROLF MARSH,
13 WALTER MASLAK, JAMES PAYNE, and ANTONIO RIVERA, individually and
14 on behalf of others similarly situated,

No. C-03-04529-RMW COUNTERCLAIM JURY DEMANDED

15

Plaintiffs,

16

vs.

17 INTERNATIONAL BUSINESS MACHINES CORPORATION,
18 Defendant.
19

20 INTERNATIONAL BUSINESS MACHINES CORPORATION,
21
Counterclaimant, 22
vs. 23
WILLIAM SYVERSON, RUTH ALICE 24 BOYD, DALE CAHILL, JACK
FRIEDMAN, PAUL GRAMKOWSKI, 25 SYLVIA JONES, ROLF MARSH,
WALTER MASLAK, JAMES PAYNE, 26 and ANTONIO RIVERA,

27

Counter-Defendants.

28
SF/309582.1

COUNTERCLAIM U.S.D.C, N.D. Cal., No. C-03-04529-RMW

1

Assuming the position of counterclaimant, defendant International Business Machines

2 Corporation (“IBM”) asserts the following counterclaim against plaintiffs William Syverson, Ruth Alice

3 Boyd, Dale Cahill, Jack Friedman, Paul Gramkowski, Sylvia Jones, Rolf Marsh, Walter Maslak, James

4 Payne, and Antonia Rivera (“Counter-Defendants”) and alleges as follows.

5

JURISDICTION AND VENUE

6

1. The Court has jurisdiction over this counterclaim pursuant to 28 U.S.C. section 1367(a)

7 as a counterclaim ancillary to the main action brought by Counter-Defendants.

8

2. Venue in this Court is proper in that the counterclaim is ancillary to the main action

9 brought by Counter-Defendants before this Court.

10

PARTIES

11

3. IBM is a corporation incorporated under the laws of the State of New York with its

12 principal place of business in the State of New York.

13

4. Counter-Defendants are individuals who are former IBM employees.

14

GENERAL ALLEGATIONS

15

5. Between January 2001 and June 2002, Counter-Defendants were terminated from

16 employment with IBM.

17

6. Upon notice of his or her termination, IBM offered each Counter-Defendant severance

18 pay and benefits in exchange for a release (the “Release”).

19

7. Each Counter-Defendant accepted the Release and accepted severance pay and benefits

20 provided under it.

21

8. Under the Release, each Counter-Defendant waived all claims against IBM, including but

22 not limited to the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq

23 (“ERISA”).

24

9. Under the Release, each Counter-Defendant covenanted that he or she would not sue

25 IBM under ERISA for claims arising from his her termination and that, if he or she did, he or she would

26 be liable for all of IBM’s costs and expenses in defending against the suit, including reasonable

27 attorneys’ fees.

28

10. In their First Amended Complaint, Counter-Defendants assert a claim against IBM under

SF/309582.1

COUNTERCLAIM U.S.D.C, N.D. Cal., No. C-03-04529-RMW

1 ERISA arising from the termination of their employment, i.e., the very claim that they waived under the 2 Release. See First Amended Complaint, Count V.

3

11. Service of the First Amended Complaint upon IBM has caused IBM to incur, and will

4 continue to cause IBM to incur until the conclusion of this action and subsequent related proceedings,

5 costs and expenses, including reasonable attorneys’ fees, in a total amount not yet known but which will

6 be ascertained by the time that judgment is entered in IBM’s favor and against Counter-Defendants.

7

CLAIM FOR RELIEF

(Breach of Written Contract) 8

9

12. IBM incorporates by reference and re-alleges paragraphs 1 through 11.

10

13. The Release constitutes a written contract with IBM.

11

14. By suing IBM under ERISA in this action, Counter-Defendants breached the Release.

12

15. IBM has performed all obligations under the Release and/or any obligations it has under

13 the Release have been waived by Counter-Defendants.

14

16. Counter-Defendants are therefore liable to IBM for IBM’s costs and expenses, including

15 reasonable attorneys’ fees, based on their breach of the Release, in an amount to be ascertained at the

16 time judgment is entered in this action.

17

17. The Court should also enter a declaratory judgment that Counter-Defendants will remain

18 liable to IBM for its costs and expenses, including reasonable attorneys’ fees, incurred in any subsequent

19 proceedings related to this action.

20

RELIEF REQUESTED

21

IBM asks the Court to enter judgment on this counterclaim in its favor and against Counter-

22 Defendants, jointly and severally, awarding to IBM:

23

1. IBM’s costs and expenses, including reasonable attorneys’ fees, incurred in this action, in

24 an amount to be ascertained at the time judgment is entered;

25

2. a declaration that Counter-Defendants remain liable to IBM for its costs and expenses,

26 including reasonable attorneys’ fees, incurred in any subsequent proceedings related to this action; and

27

3. such further or other relief as the Court deems proper.

28 ///
SF/309582.1

-2-

COUNTERCLAIM

U.S.D.C, N.D. Cal., No. C-0304529-RMW

1

Dated: February 12, 2004.

JEFFREY D. WOHL

KERRI N. HARPER

2

PAUL, HASTINGS, JANOFSKY & WALKER LLP

3

4

By: ________________________________________

Jeffrey D. Wohl

5

Attorneys for Defendant and Counterclaimant

International Business Machines Corporation

6

7

JURY DEMAND

8

IBM demands a jury trial on all issues properly triable to a jury on its counterclaim.

9

Dated: February 12, 2004.

JEFFREY D. WOHL

KERRI N. HARPER

10

PAUL, HASTINGS, JANOFSKY & WALKER LLP

11

By: _/s/ Jeffrey D. Wohl __________________

12

Jeffrey D. Wohl

Attorneys for Defendant and Counterclaimant

13

International Business Machines Corporation

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
SF/309582.1

-3-

COUNTERCLAIM

U.S.D.C, N.D. Cal., No. C-0304529-RMW

 
 1 JEFFREY D. WOHL (Cal. State Bar No. 120791) KERRI N. HARPER (Cal. State Bar No. 217377)
2 PAUL, HASTINGS, JANOFSKY & WALKER LLP 55 Second Street, 24th Floor
3 San Francisco, California 94105-3441 Telephone: (415) 856-7000
4 Facsimile: (415) 856-7100

5 Attorneys for Defendant International Business Machines Corporation
6

7

UNITED STATES DISTRICT COURT

8

NORTHERN DISTRICT OF CALIFORNIA

9

10 WILLIAM SYVERSON, RUTH ALICE BOYD, DALE CAHILL, JACK
11 FRIEDMAN, PAUL GRAMKOWSKI, SYLVIA JONES, ROLF MARSH,
12 WALTER MASLAK, JAMES PAYNE, and ANTONIO RIVERA, individually and
13 on behalf of others similarly situated,

14

Plaintiffs,

No. C-03-04529-RMW

OPPOSITION TO PLAINTIFFS’ MOTION TO DISMISS IBM’S COUNTERCLAIM

Date:

April 30, 2004

Time:

9:00 a.m.

Courtroom: 6, 4th Floor

Judge:

Hon. Ronald M. Whyte

15

vs.

Accompanying papers:

16 INTERNATIONAL BUSINESS MACHINES CORPORATION,
17 Defendant.
18
19 INTERNATIONAL BUSINESS
20 MACHINES CORPORATION,

Declaration of Marianne DeFarzio in Opposition to Plaintiffs’ Motion to Dismiss IBM’s Counterclaim
[Proposed] Order Denying Plaintiffs’ Motion to Dismiss IBM’s Counterclaim

21

Counterclaimant,

22

vs.

23 WILLIAM SYVERSON, RUTH ALICE BOYD, DALE CAHILL, JACK
24 FRIEDMAN, PAUL GRAMKOWSKI, SYLVIA JONES, ROLF MARSH,
25 WALTER MASLAK, JAMES PAYNE, and ANTONIO RIVERA,
26 Counter-Defendants.
27

28
SF/318389.3

OPPOSITION TO MOTION TO DISMISS IBM’S COUNTERCLAIM U.S.D.C, N.D. Cal., No. C-03-04529-RMW

1 I. INTRODUCTION/SUMMARY OF ARGUMENT

2

When plaintiffs were terminated from employment with defendant International Business

3 Machines Corporation (“IBM”) between January 2001 and June 2002, each accepted IBM’s offer of

4 severance pay and benefits in exchange for a “General Release and Covenant Not To Sue” (the

5 “Release”). The Release, in no uncertain terms, waived all claims against IBM, including all claims

6 under the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. (“ERISA”). The

7 Release, however, did not extend to plaintiffs’ non-forfeitable rights to accrued benefits within the

8 meaning of sections 203 and 204 of ERISA, which pertain to pension plans such as the IBM Personal

9 Pension Plan and the IBM Retirement Plan. As part of their Release, plaintiffs also agreed that they

10 would not sue IBM on their released ERISA claims and that, if they did, they would be liable for all of

11 IBM’s costs and expenses in defending against the suit, including reasonable attorneys’ fees.

12

In this action, plaintiffs have done just what they contracted with IBM not to do: they have sued

13 IBM on the very ERISA cause of action they waived under the Release, i.e., a cause of action alleging

14 that they were terminated in violation of ERISA to avoid paying them benefits that would have accrued

15 in the future had they remained IBM employees. Accordingly, IBM has brought a counterclaim against

16 plaintiffs for breach of their covenant not to sue and, pursuant to their covenant, seeks costs and

17 reasonable attorneys’ fees in defending against plaintiffs’ released but still asserted ERISA cause of

18 action. IBM does not counterclaim based on plaintiffs’ pursuit of claims under the Age Discrimination

19 in Employment Act (“ADEA”), even though those claims are also barred by the Release, because the 20 Release’s covenant not to sue does not extend to those ADEA claims.1

21

In their motion to dismiss IBM’s counterclaim, plaintiffs raise numerous arguments why IBM

22 has failed to state a valid counterclaim against them. None of their contentions withstands analysis.

23

Plaintiffs first argue that their ERISA cause of action is not barred by the Release. But

24 nowhere in their ERISA cause of action do plaintiffs allege that IBM denied plaintiffs’ non-forfeitable

25 rights to accrued benefits under the IBM Personal Pension Plan and the IBM Retirement Plan.

26

27

1

IBM has separately moved to dismiss those ADEA claims, along with the rest of plaintiffs’

First Amended Complaint, based on the Release, and that motion will be heard at the same time as

28 plaintiffs’ motion to dismiss IBM’s counterclaim.

SF/318389.3

OPPOSITION TO MOTION TO DISMISS IBM’S COUNTERCLAIM U.S.D.C, N.D. Cal., No. C-03-04529-RMW

1 Moreover, it is undisputed that the termination of plaintiffs’ employment with IBM did not impair any

2 such rights. What plaintiffs do allege is that IBM terminated them in violation of ERISA to keep them

3 from receiving benefits accruing in the future by virtue of continued employment, including pension and

4 health benefits. But plaintiffs waived that cause of action, along with all of their other termination-based

5 claims, when they accepted the Release, and are breaching their covenant not to sue by asserting the

6 claim in this action.

7

Plaintiffs argue that their ERISA cause of action is a necessary component of their ADEA

8 claims because under those claims they are seeking lost benefits as damages. Plaintiffs miss the

9 fundamental difference between the recovery of lost benefits as an aspect of damages for wrongful

10 termination (such as a termination in violation of the ADEA), and a cause of action under ERISA itself.

11 The issue here is not whether, if plaintiffs were successful in avoiding the Release and recovering under

12 the ADEA, they could recover lost benefits as part of their damages. The issue here is whether plaintiffs

13 can maintain a separate cause of action under ERISA by alleging that they were terminated in violation

14 of that statute to deny them those benefits. But plaintiffs waived that cause of action under the Release.

15

Plaintiffs also contend that the Release is a contract of adhesion that must be read in a

16 way that denies the plain language of the Release’s covenant. The clear terms of a contract are not to be

17 disregarded simply because the contract is adhesory. And there is nothing ambiguous about the

18 covenant not to sue; plaintiffs were not supposed to sue IBM on the ERISA cause of action they have

19 now asserted and, having done so, they are liable to IBM for its costs and reasonable attorneys’ fees

20 incurred in defending against that cause of action.

21

Finally, plaintiffs argue that the Release is invalid under the Older Workers Benefit

22 Protection Act (“OWBPA”) and that they may therefore pursue their ERISA cause of action as well as

23 their ADEA claims. In fact, the Release fully complies with the OWBPA, as IBM initially established

24 in its own motion to dismiss plaintiffs’ First Amended Complaint, as another district court reviewing the

25 same Release has already held, and as IBM will further demonstrate when it submits its reply in support

26 of the motion next week. For purposes of plaintiffs’ motion to dismiss IBM’s counterclaim, however, it

27 is enough to note that the OWBPA, which is an amendment to the ADEA, governs only waivers of

28 claims under the ADEA, not claims under ERISA. Accordingly, plaintiffs’ arguments about whether the

SF/318389.3

OPPOSITION TO MOTION TO DISMISS IBM’S COUNTERCLAIM

-2-

U.S.D.C, N.D. Cal., No. C-03-04529-RMW

1 Release complies with the OWBPA are simply irrelevant with respect to IBM’s counterclaim, which

2 pertains to plaintiff’s breach of the Release only with respect to their ERISA claims.

3

Accordingly, IBM’s counterclaim more than adequately states a claim for relief, and plaintiffs’

4 motion to dismiss is without merit. It should be denied.2

5 II. 6 7

BECAUSE PLAINTIFFS CLAIM THAT IBM TERMINATED PLAINTIFFS IN VIOLATION OF ERISA TO AVOID PAYING BENEFITS ACCRUING IN THE FUTURE, THEY HAVE BREACHED THEIR COVENANT NOT TO SUE
When IBM terminated plaintiffs’ employment between January 2001 and June 2002, it offered

8 each plaintiff severance pay and benefits contingent upon his or her acceptance of the Release. The

9 Release provided specifically that in exchange for the severance pay and benefits, plaintiffs waived all

10 claims against IBM, but also made clear that certain ERISA rights were unimpaired:

11

In exchange for the sums and benefits received...[insert name] (herein “you”) agrees to

release and hereby does release International Business Machines Corporation…from all

12

claims, demands, actions or liabilities you have against IBM of whatever kind including,

but not limited to, those that are related to your employment with IBM, the termination of

13

that employment, or other severance payments...

14

This Release does not prevent you from enforcing your non-forfeitable rights to your

accrued benefits (within the meaning of Sections 203 and 204 of the Employee

15

Retirement Income Security Act of 1974, as amended…under the terms of the IBM

Personal Pension Plan or the IBM Retirement Plan…which are not released hereby but

16

survive unaffected...

17 Release, at 1 (emphasis supplied); see also plaintiffs’ Motion to Dismiss at 4. The Release further

18 provides that plaintiffs may not sue IBM on an ERISA claim waived by the Release, and if they do so,

19 they will be liable to IBM for reasonable costs and attorneys’ fees in defending against the claim.3

20

21 2

Once their motion to dismiss is denied and plaintiffs answer the counterclaim, IBM will move

for summary judgment.

22 3

You agree that you will never institute a claim of any kind against IBM, or those

23

associated with IBM including, but not limited to, claims related to your employment with IBM or the termination of that employment or other severance payments or your

24

eligibility for participation in the retirement bridge. If you violate this covenant not to sue by suing IBM or those associated with IBM, you agree that you will pay all costs and

25

expenses of defending against the suit incurred by IBM or those associated with IBM, including reasonable attorneys’ fees, and all further costs and fees, including attorneys’

26

fees, incurred in connection with collection. This covenant not to sue does not apply to actions based solely under the Age Discrimination in Employment Act of 1967, as

27

amended. That means that if you were to sue IBM or those associated with IBM only under the Age Discrimination in Employment Act of 1967, as amended, you would not

28

be liable under the terms of this Release for their attorneys’ fees and other costs and

SF/318389.3

OPPOSITION TO MOTION TO DISMISS IBM’S COUNTERCLAIM

-3-

U.S.D.C, N.D. Cal., No. C-03-04529-RMW

1

As their first argument in support of their motion to dismiss IBM’s counterclaim, plaintiffs

2 contend that their ERISA cause of action is not barred by the Release, and therefore in asserting it they

3 have not breached their covenant not to sue. Plaintiffs are incorrect.

4

The plain language of the Release makes clear that the employee did not waive a claim for

5 benefits only if all of the following conditions were met:

6

the claim was for a non-forfeitable benefit;

7

the claim was for an accrued benefit, within the meaning of ERISA sections 203 and 204;

8

the claim was for a benefit earned as of the plaintiff’s termination date; and

9

the claim was for a benefit under the IBM Personal Pension Plan or the IBM Retirement

10

Plan.

11

In their ERISA cause of action (Fifth Count of their First Amended Complaint), plaintiffs make

12 no allegation that the termination of their employment with IBM impaired any non-forfeitable right to

13 benefits accrued within the meaning of ERISA sections 203 and 204 as of their termination date under

14 the IBM Personal Pension Plan or the IBM Retirement Plan. Instead, plaintiffs allege that the

15 termination of their employment violated ERISA as follows:

16

50. IBM terminated plaintiffs in violation of ERISA in order to avoid general vesting

of plaintiffs and vesting of “cliff” benefits under various ERISA-protected

17

pension and welfare benefit plans.

18

51. IBM terminated plaintiffs in violation of ERISA in order to avoid its increasing

pension and benefit cost obligations to employees with greater years of service.
19

52. IBM terminated plaintiffs in violation of ERISA in order to avoid increasing cost

20

of health care benefits to employees with greater years of service.

21

53. IBM terminated plaintiffs in violation of ERISA in order to avoid vesting of

retiree/dependent health benefits.
22

54. IBM terminated plaintiffs in violation of ERISA in order to recover

23

retiree/dependent health care benefits of employees in Future Health Accounts.

24 First Amended Complaint, ¶¶ 50-54. All of these allegations are barred by the Release.

25

First, the allegations relating to “welfare benefit plans” (¶ 50) and “health care benefits” (¶¶ 52-

26

expenses of defending against the suit. This Release does not preclude filing a charge

27

with the U.S. Equal Employment Opportunity Commission.

28 Release, at 2.

SF/318389.3

OPPOSITION TO MOTION TO DISMISS IBM’S COUNTERCLAIM

-4-

U.S.D.C, N.D. Cal., No. C-03-04529-RMW

1 54) do not relate to the IBM Personal Pension Plan or the IBM Retirement Plan. The IBM Personal

2 Pension Plan and the IBM Retirement Plan are not “welfare benefit plans” and do not provide “health

3 care benefits”; they are pension plans and provide pension benefits. Declaration of Marianne DeFazio

4 (“DeFazio Decl.”), ¶ 7.4 Under ERISA, pension plans provide retirement income or post-employment

5 deferred compensation. See ERISA § 3(2), 29 U.S.C. § 1002(2). Welfare benefit plans, by contrast,

6 provide such things as medical benefits. See ERISA § 3(1) , 29 U.S.C. § 1002(1).

7

Contrary to plaintiffs’ speculation,5 the IBM Future Health Account (“FHA”) plan (referenced in

8 paragraph 54 of the First Amended Complaint) is a welfare benefit plan, not a pension plan, because it

9 provides subsidized medical benefits to eligible employees after retirement, not pension benefits. See

10 DeFazio Decl., Exh. B at 4 (“The IBM Future Health Account provides you with funds to help pay the

11 premiums for IBM medical, dental and vision benefits after you leave the company…”). Moreover,

12 IBM reports the FHA as a welfare benefit as part of its annual Form 5500 to the United Stated

13 Department of Labor for the IBM Benefits Plan for Retired Employees. DeFazio Decl., ¶ 3.

14

Welfare benefit plans are wholly exempt from ERISA sections 203 and 204, 29 U.S.C. §§ 1053-

15 1054, pursuant to ERISA section 201(1), 29 U.S.C. § 1051(1) (which exempts welfare benefit plans

16 from part 2 of title I of ERISA, pertaining to pension plans). Hence, a benefit under a welfare benefit

17 plan cannot be an “accrued benefit” within the meaning of sections 203 and 204. The term “accrued

18 benefit,” as used in sections 203 and 204 of ERISA, principally is defined in ERISA section 3(23), 29

19 U.S.C. § 1002(23)). This section of ERISA defines “accrued benefit” with respect to a defined benefit

20 pension plan as “the individual’s accrued benefit determined under the plan...expressed in the form of an

21

22 4

Because plaintiffs rely on the Syverson declaration in support of their motion to dismiss, the

motion should be deemed a summary judgment motion, Fed. R. Civ. 12(b), which means that IBM may

23 also rely on evidence outside of the pleadings in this opposition. See Grove v. Meed School District,

753 F.2d 1528, 1532-33 (9th Cir. 1985); Erlich v. Glasner, 374 F.2d 681, 683 (9th Cir. 1967) (holding

24 that when court does not exclude affidavit provided in support of motion to dismiss, court must treat

motion as one for summary judgment, and give non-moving party reasonable opportunity to present all

25 material facts in response). That also means that if in the unlikely event the Court is in doubt about any

of facts presented here, the Court should find a triable issue and deny plaintiffs’ motion on that basis.

26 5

Plaintiffs admit they are just guessing about the actual nature of the FHA. See Motion to

Dismiss at 3 (plaintiffs admit that they “do not have a copy of the FHA to make a final determination as
27 to whether the FHA is a welfare benefit plan, a defined contribution plan, neither, and/or whether, the

FHA is governed by the ERISA”).
28

SF/318389.3

OPPOSITION TO MOTION TO DISMISS IBM’S COUNTERCLAIM

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U.S.D.C, N.D. Cal., No. C-03-04529-RMW

1 annual benefit commencing at normal retirement age.” ERISA § 3(23), 29 U.S.C. § 1002(23). With

2 respect to an individual account pension plan, it defines “accrued benefit” as the participant’s account

3 balance. 29 U.S.C. § 1002(23)(b). The term “accrued benefit,” therefore, has no meaning except in

4 relation to “pension plans.”

5

Second, none of plaintiffs’ ERISA-related allegations in their First Amended Complaint (¶¶ 50-

6 54, quoted above) relates to “non-forfeitable rights to accrued benefits” as of the time of their

7 termination. The first four of these paragraphs pertain to future benefits, not currently accrued benefits:

8 See ¶ 50 (“general vesting of plaintiffs and vesting of ‘cliff’ benefits”); ¶ 51 (“increasing pension and

9 benefit cost obligations”); ¶ 52 (“increasing cost of health care benefits”); ¶ 53 (“vesting of

10 retiree/dependent health benefits”). Indeed, in his declaration accompanying the motion (¶ 5), plaintiff

11 Syverson asserts that “[a]s a result of my termination by IBM...I will lose literally $777,000 in pension

12 benefits had I worked to age 60 and lived until age 80” (emphasis added).

13

As for the FHA benefits referenced in paragraph 54, an employee has no entitlement to FHA

14 benefits unless he or she retired from IBM at age 55 or older with 15 or more years of service, or retired

15 with 30 or more years of service regardless of age. DeFazio Decl., ¶ 5. Absent this eligibility, access to

16 FHA benefits automatically terminates when an employee’s employment ends for any reason. See

17 DeFazio Decl., ¶ 5. At the time they were terminated by IBM, none of the plaintiffs was eligible for

18 FHA benefits. Id., ¶ 8.

19

Plaintiffs’ ERISA cause of action is barred by the Release, and subject to the covenant not to sue.

20 Accordingly, IBM’s counterclaim for breach of the covenant states a valid claim against plaintiffs.

21 III. PLAINTIFFS’ ERISA CAUSE OF ACTION IS DISTINCT AND SEPARATE
FROM PLAINTIFFS’ CLAIM FOR DAMAGES UNDER THE ADEA
22

23

Plaintiffs’ next argument is that their ERISA cause of action is necessarily intertwined with their

24 ADEA claims and that, to the extent that they are entitled to sue under the ADEA notwithstanding the

25 Release, they are also permitted to sue under ERISA. Plaintiffs thus miss the fundamental difference

26 between lost benefits as an aspect of damages, and a cause of action under ERISA itself for lost benefits.

27 IBM does not dispute that if plaintiffs were successful in avoiding the Release and recovering under the

28 ADEA, they could recover lost benefits as part of their damages. See, e.g., Cancellier v. Federated

SF/318389.3

OPPOSITION TO MOTION TO DISMISS IBM’S COUNTERCLAIM

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U.S.D.C, N.D. Cal., No. C-03-04529-RMW

1 Dept. Stores, 672 F.2d 1312 (9th Cir. 1982) (even in absence of ERISA cause of action, plaintiff who

2 was terminated in violation of ADEA can recover lost benefits as well as lost wages). But the

3 availability of lost benefits as part of recoverable damages does not turn an ADEA claim into an ERISA

4 cause of action. Ethridge v. Harbor House Restaurant, 861 F.2d 1389, 1405 (9th Cir. 1988) (holding

5 that claim does not relate to ERISA “when the loss of pension benefits was a mere consequence of, but

6 not a motivating factor behind the termination of benefits”); Karambelas v. Hughes Aircraft Co., 992

7 F.2d 971, 974 (9th Cir. 1993) (mention of lost benefits as consequence of termination does not give rise

8 to ERISA preemption where employer was motivated by other concerns).

9

Here, plaintiffs’ Fifth Count is not merely an enumeration of the ADEA damages they seek in

10 their other claims; it is brought as a stand-alone cause of action alleging that plaintiffs were terminated

11 in violation of ERISA to avoid paying them benefits. See Tingey v. Pixley-Richards West, Inc., 953

12 F.2d 1124, 1131 (9th Cir. 1992) (wrongful termination claim preempted by ERISA because plaintiff’s

13 theory was that his employer terminated him to deny him medical insurance benefits); Felton v.

14 Unisource Corp, 940 F.2d 503, 507 (9th Cir. 1991) (same). And because plaintiffs waived their ERISA

15 cause of action under the Release and covenanted not to assert it in a subsequent lawsuit, their pursuit of

16 it in this action breaches their contract and entitles IBM to relief.

17 IV. THERE IS NO AMBIGUITY ABOUT THE RELEASE THAT MAKES THE
COVENANT NOT TO SUE UNENFORCEABLE AGAINST PLAINTIFFS
18

19

Plaintiffs’ next argument is that the Release is a contract of adhesion and for that reason the

20 Release should be construed against IBM such that their ERISA claim is not barred. Plaintiffs’ logic

21 stops short of meaningful analysis. A contract of adhesion is nothing more than “a standardized

22 contract, which, imposed and drafted by the party of superior bargaining strength, relegates to the

23 subscribing party only opportunity to adhere to the contract or reject it.” Allan v. Snow Summit, Inc., 51

24 Cal. App. 4th 1358, 1375 (1996) (internal quotations and citations omitted). To describe a contract as

25 “adhesive,” however, says nothing of its “legal effect.” Id. “[A]n adhesive contract is binding unless it

26 is also substantively unconscionable,” Grafton Partners LP v. Superior Court, 115 Cal. App. 4th 700,

27 710 n.10 (2004) (emphasis added), or the provisions of the contract “do not fall within the reasonable

28 expectations of the weaker ‘adhering’ party.” Graham v. Scissor-Tail, Inc., 28 Cal. 3d 807, 820 (1990).

SF/318389.3

OPPOSITION TO MOTION TO DISMISS IBM’S COUNTERCLAIM

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U.S.D.C, N.D. Cal., No. C-03-04529-RMW

1

Plaintiffs do not—and cannot—assert that the Release is substantively unconscionable. Rather,

2 they contend that any ambiguities in the contract should be construed against IBM. However, there are 3 no ambiguities in the covenant not to sue.6 Under it, plaintiffs agreed that they would “never institute a

4 claim of any kind against IBM...including, but not limited to, claims related to your employment with

5 IBM or the termination of that employment... If you violate this covenant not to sue by suing IBM...you

6 agree that you will pay all costs and expenses of defending against the suit incurred by IBM...including

7 reasonable attorneys’ fees.” Combined with the broad scope of their release of claims, the covenant

8 made it plain and simple that plaintiffs were not supposed to sue IBM under ERISA based on the

9 termination of their employment and the resulting loss of benefits. That, of course, is exactly what

10 plaintiffs did, and IBM is now entitled to compensation for the expense caused to it by plaintiffs’ breach

11 of the Release.

12 V. 13

THE OWBPA STANDARDS FOR A WAIVER OF AN ADEA CLAIM DO NOT APPLY TO ERISA CLAIMS.

14

Plaintiffs’ final argument is that that the OWBPA’s minimum requirements for a waiver of

15 ADEA claims also apply to ERISA claims and that, based on their contention that the Release does not

16 comply with the OWBPA, they are also entitled to avoid the Release with respect to their ERISA cause

17 of action as well as their ADEA claims. In its motion to dismiss plaintiffs’ First Amended Complaint,

18 IBM established that in fact the Release does comply with the OWBPA in every respect, and in its reply

19 to plaintiffs’ opposition to that motion, IBM will show that the language in the Release’s covenant not to

20 sue that plaintiffs attack is, in fact, clear and unambiguous and in conformance with applicable EEOC 21 regulations.7

22

23 6

See also Thomforde v. International Business Machines Corporation, discussed in note 7 supra,

in which the court found no ambiguity in the same Release at issue here.

24 7

IBM notes that the same argument made by plaintiffs herethat an ambiguity in violation of the

25

OWBPA is created because (a) the Release releases ADEA claims while (b) the covenant not to sue does not apply to ADEA claimswas raised by the plaintiff in Thomforde v. International Business

26

Machines Corporation, 2004 WL 314304 (D. Minn., Jan. 27, 2004), and summarily rejected by the court there. In Thomforde, the court, reviewing the same IBM Release at issue here, held: “The release is not

27

qualified by the covenant not to sue’s inapplicability to an action based solely on the ADEA. The Agreement satisfies section 626(f)(1)(A) [of OWBPA].” 2004 WL 314304 *2. The court further held:

28 "The release is not qualified by the covenant not to sue’s inapplicability to an action based solely under

SF/318389.3

OPPOSITION TO MOTION TO DISMISS IBM’S COUNTERCLAIM

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U.S.D.C, N.D. Cal., No. C-03-04529-RMW

1

For purposes of this motion to dismiss IBM’s counterclaim, it is sufficient to note that plaintiffs

2 are simply wrong as a matter of law in asserting that the OWBPA controls the validity of the release

3 with respect to an ERISA claim. The OWBPA was, of course, an amendment to the ADEA, not ERISA,

4 and nothing in the OWBPA suggests that it also was intended to apply to ERISA claims (or, for that

5 matter, any claims other than ADEA claims). For this reason, the court in Chaplin v. Nationscredit

6 Corp, 307 F.3d 368, 375-76 (5th Cir. 2002), had no difficulty concluding that a release that does not

7 comply with the OWBPA still can waive an ERISA claim. The Chaplin court reasoned that the phase

8 “this chapter” in the text of the OWBPA, which provides, “[a]n individual may not waive any right or

9 claim under this chapter unless the waiver is knowing and voluntary,” 29 U.S.C. § 626(f)(1) (emphasis

10 added), refers exclusively to the ADEA. See Chaplin, 307 F.3d at 376 (“[o]ne need only cursorily

11 examine the text of the OWBPA to see that it applies only to ADEA claims”). See also Skrbina v.

12 Fleming Companies, Inc, 45 Cal. App. 4th 1353, 1367-68 (1996) (“By its plain terms, 29 United States

13 Code section 626(f)(1) applies only to rights or claims under the ADEA. It does not apply to claims

14 based on state law…”). The Chaplin court also explained that the U.S. Supreme Court in Oubre v.

15 Entergy Operations, Inc., 522 U.S. 422 (1998), “recognized this obvious point and the very limited

16 scope of the OWBPA.” Id. at 376. Indeed, the Chaplin court concluded that the Supreme Court’s

17 decision in Oubre actually precludes the argument that the OWBPA applies to release of an ERISA

18 claim. Id at 375-376. The Chaplin court further noted the Supreme Court’s recognition in Oubre of “a

19 congressional intent for the OWBPA to displace the common law and create ‘its own regime for

20 assessing the effect of ADEA waivers separate and apart from contract law.’” Id. at 376. Thus, even if

21 the intent of the OWBPA extends beyond the ADEA, it only reaches those federal statutes with an

22 equally comprehensive regulation of releases. See id. As ERISA does not regulate releases, neither the

23 OWBPA nor Oubre applies to the release of ERISA claims. See id at 376; see also Aikins, 1999 WL

24 179686 at *5 (“[w]here Congress has wanted to insure particular protections for employees in

25

26

the ADEA. Thomforde clearly and unambiguously released his ADEA claims against IBM. The Court therefore concludes that IBM is entitled to summary judgment.” Id., *3. In its reply in support of its

27

motion to dismiss plaintiffs' First Amended Complaint, IBM will elaborate on the reasons why the Thomforde court reached the right result, but even standing alone the Thomforde decision shows how

28 vacuous is plaintiffs’ attack on the Release.

SF/318389.3

OPPOSITION TO MOTION TO DISMISS IBM’S COUNTERCLAIM

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U.S.D.C, N.D. Cal., No. C-03-04529-RMW

1 procedures for obtaining releases, it has done so with specific language, for instance, in the OWBPA.”).

2

Plaintiffs’ sole attempt to distinguish the holding of Chaplin is unavailing. Plaintiffs note that

3 the plaintiff in Chaplin did not raise an ADEA claim in that case. That makes no difference. The

4 OWBPA either applies to ERISA, or it does not; the joinder of an ADEA claim with an ERISA claim

5 does not change the analysis. It was the plain language of the OWBPA, the Supreme Court’s ruling in

6 Oubre, and the reasoning behind Oubre that led the Chaplin court to conclude that the OWBPA does not

7 apply to a release of ERISA claims.

8

Finally, even before Chaplin, at least two Judges of this Court ruled that OWBPA applies

9 exclusively to ADEA claims, and has no force or effect with respect to non-ADEA claims. See Aikins v.

10 Tosco Refining Co., 1999 WL 179686 (N.D. Cal., 1999) (Breyer, J.) (applying general contract

11 principles, not OWBPA principles, to non-ADEA claims such as Title VII); Kinghorn v. Citibank, 1999

12 WL 30534 (N.D. Cal., 1999) (Smith, J.) (holding that “the OWBPA’s minimum criteria for knowing and

13 voluntary waivers applies only to rights or claims under the ADEA,” and not to state law discrimination

14 claims, quoting Skrbina, 45 Cal. App. 4th at 1367-68 (1996)). Plaintiffs offer no reason that the Court in

15 this action should depart from Chaplin and these prior rulings by other Judge of this Court.

16

Plaintiffs’ OWBPA arguments have no bearing on their breach of their covenant not to sue by

17 proceeding with their ERISA cause of action.

18 VI. CONCLUSION

19

When they accepted the Release and took the severance pay and benefits provided under it,

20 plaintiffs promised they would not sue IBM on the very same ERISA cause of action they now assert.

21 Plaintiffs breached their covenant not to sue, and are liable to IBM for costs and attorneys’ fees incurred

22 in defending against the ERISA cause of action. Plaintiffs’ motion to dismiss the counterclaim should

23 therefore be denied.

24

Dated: April 9, 2004.

25

26

27

28
SF/318389.3

JEFFREY D. WOHL KERRI N. HARPER PAUL, HASTINGS, JANOFSKY & WALKER LLP

By: /s/ Jeffrey D. Wohl Jeffrey D. Wohl
Attorneys for Defendant and Counterclaimant International Business Machines Corporation

-10-

OPPOSITION TO MOTION TO DISMISS IBM’S COUNTERCLAIM U.S.D.C, N.D. Cal., No. C-03-04529-RMW

 
 1 Jeffrey Neil Young (Maine SBN 3874)

Patrick McTeague (Maine SBN 621)

2 McTEAGUE, HIGBEE, CASE, COHEN

WHITNEY & TOKER, PA

3 PO Box 5000

Topsham, ME 04086

4 Telephone: 207.725.5581

Facsimile: 207.725.1090

5 e-mail:

jyoung@me-law.com

6 Attorneys for Plaintiffs

7 Robert E. Jesinger, SBN 59550

Wylie, McBride, Jesinger, Platten & Renner

8 2125 Canoas Garden Avenue Suite 120

San Jose, CA 95125

9 Telephone: 408.979.2920

Facsimile: 408.979.2934

10 e-mail:

rjesinger@wmjpr.com

11

12

UNITED STATES DISTRICT COURT

13

NORTHERN DISTRICT OF CALIFORNIA

14

15 WILLIAM SYVERSON, RUTH ALICE BOYD, Case No. C 03 04529 RMW

DALE CAHILL, JACK FRIEDMAN, PAUL

16 GROMKOWSKI, SYLVIA JONES, ROLF

MEMORANDUM OF POINTS AND

MARSH, WALTER MASLAK, JAMES

AUTHORITIES IN SUPPORT OF MOTION

17 PAYNE, and ANTONIO RIVERA, individually TO APPROVE NOTICE OF ACTION, TO

and on behalf of others similarly situated,

CERTIFY CLASS FOR PURPOSES OF

18

COUNT I OF THE AMENDED

Plaintiffs,

COMPLAINT, AND TO COMPEL IBM TO

19

PROVIDE NAMES, ADDRESSES, AND

v.

DATES OF BIRTH OF SIMILARLY

20

SITUATED EMPLOYEES

INTERNATIONAL BUSINESS MACHINES

21 CORPORATION,

Date: March 5, 2004

22

Defendant.

Time: 10:30 a.m. Dept: Courtroom 6, 4th Floor

Judge: The Hon. Ronald M. Whyte

23

24

25

26

27

28
.
Ps&As In Support Of Motion To Approve Notice Of Action, To Certify Class For Purposes Of Count I Of The Amended Complaint, And To Compel IBM To Provide Names, Addresses, And Dates Of Birth Of Similarly Situated Employees Case No. C 03 04529 RMW

1

TABLE OF CONTENTS

2

Page

INTRODUCTION............................................................................................................................... 1
3
BACKGROUND................................................................................................................................. 2

4 ARGUMENT ...................................................................................................................................... 7

5

1. BECAUSE THIS COURT’S DETERMINATION ON IBM’S POTENTIALLY DISPOSITIVE MOTION WILL HAVE A SIGNIFICANT

6

PRACTICAL AND POSSIBLY PRECLUSIVE IMPACT UPON OTHER SIMILARLY SITUATED INDIVIDUALS, THIS COURT SHOULD FIRST

7

DECIDE THE NOTICE, CLASS CERTIFICATION, AND DISCOVERY

ISSUES..........................................................................................................................7

8

2. THE COURT SHOULD SANCTION NOTICE OF THIS ACTION TO ALL

SIMILARLY SITUATED EMPLOYEES. .................................................................11
9
A. Plaintiffs Have Complied With All Procedural Prerequisites To

10

Bring This Action............................................................................................13

B. The Named Plaintiffs Are Similarly Situated To The Proposed

11

Class With Respect To Count I Of The Amended Complaint. .......................15

12

C. The Scope Of The Class For Purposes Of The Alleged Violation Of The OWBPAContained In Count I Of The

13

Amended Complaint Should Be All Individuals Age 40 And

Over Terminated By IBM On Or After July 7, 2001 or

14

November 3, 2001, Depending On Whether The Individual

Resided In A Deferral Or Non-Deferral State. ................................................19

15

3. THE COURT SHOULD CONDITIONALLY CERTIFY A CLASS OF ALL

IBM EMPLOYEES AGE 40 AND OVER TERMINATED BY IBM SINCE

16

JULY 7, 2001 (OR NOVEMBER 3, 2001 IN NON-DEFERRAL STATES)

WHO SIGNED A RELEASE AND COVENANT NOT TO SUE.............................21

17

4. THIS COURT SHOULD ORDER IBM TO PROVIDE PLAINTIFFS IN AN

18

ELECTRONICALLY SUITABLE FORMAT WITH THE NAMES,

ADDRESSES, AND DATES OF BIRTH OF SIMILARLY SITUATED

19

EMPLOYEES. ............................................................................................................22

A. The Courts Uniformly Compel Provision Of Names And

20

Addresses ........................................................................................................22

21

B. The Class Members Should Be Given 120 Days To Opt In With Respect To Count I Of The Amended Complaint

22

Alleging Violation Of The OWBPA. ..............................................................24

CONCLUSION ................................................................................................................................. 25
23

24

25

26

27

28
i .
Ps&As In Support Of Motion To Approve Notice Of Action, To Certify Class For Purposes Of Count I Of The Amended Complaint, And To Compel IBM To Provide Names, Addresses, And Dates Of Birth Of Similarly Situated Employees Case No. C 03 04529 RMW

1

TABLE OF AUTHORITIES

2

Page

Federal Cases

3
Albano v. Schering-Plough Corp.,

4

912 S.2d 384 (9th Cir. 1990)........................................................................................................ 15

Allen v. Marshall Field & Company,

5

93 F.R.D. 438 (N.D. Ill. 1982) .............................................................................................passim

6

Ballaris v. Wacker Silttronic Corp., 2001 W.L. 1335809, at *2 (D.Ore. 2001) .............................................................................18, 22

7 Bean v. Crocker National Bank, 600 F.2d 754, 759 (9th Cir. 1979).................................................................................................. 9

8
Belcher v. Shoney’s, Inc.,

9

927 F.Supp. 249, at 251 [(M.D. Tenn. 1996)........................................................................ 17, 18

Braunstein v. Eastern Photographic Laboratories, Inc.,

10

600 F.2d 335 (2d Cir. 1979)........................................................................................................ 11

11

Church v. Consolidated Freightways, Inc., 137 F.R.D. 294 (N.D. Cal. 1991) .........................................................................................passim

12 EEOC v. Detroit Edison Co., 515 F.2d 301, 311 (6th Cir. 1975).................................................................................................. 8

13
EEOC v. Pan Am,

14

52 FEP Cases (BNA) 929, 936-937 (N.D. Cal. 1988) ..................................................................9

Flores v. Lifeway Foods, Inc.,

15

289 F. Supp. 1042, 1044 (N.D. Ill. 2003).................................................................................... 16

16

Frank v. Capital Cities Communications, Inc., 88 F.R.D. 674, 676 (S.D.N.Y. 1981)..................................................................................... 12, 19

17 H&R Block, Ltd. v. Housden,

186 F.R.D. 399, 400 (E.D. Tex. 1999)........................................................................................17

18
Hammond v. Lowe’s Home Centers, Inc.,

19

216 F.R.D. 666, 673 (D. Kan. 2003)...........................................................................................23

Harriss v. Pan American World Airways, Inc.,

20

74 F.R.D. 24 (N.D. Cal. 1977) ..................................................................................................7, 8

21

Heagney v. European American Bank, 122 F.R.D. 125 (E.D.N.Y. 1988) ..........................................................................................20, 21

22 Hoffman-La Roche, Inc. v. Sperling,

493 U.S. 165 (1989) .............................................................................................................passim

23
Hyman v. First Union Corp.,

24

982 F.2d 1, 3 (D.D.C. 1997)........................................................................................................ 18

Jackson v. New York Telephone Co.,

25

163 F.R.D. 429, 431 (S.D.N.Y. 1995)........................................................................................ 17

26

Kelley v. Alamo, 964 F.2d 747, 750 (8th Cir. 1992) .............................................................................................................................. 24

27 Kinney Shoe Corp. v. Vorhes, 564 F.2d 859 (9th Cir. 1977)........................................................................................................ 16
28
ii.

Ps&As In Support Of Motion To Approve Notice Of Action, To Certify Class For Purposes Of Count I Of The Amended Complaint, And To Compel IBM To Provide Names, Addresses, And Dates Of Birth Of Similarly Situated Employees Case No. C 03 04529 RMW

Krueger v. New York Telephone Company,

1

1993 WL 276058, at *1 (S.D.N.Y. July 21, 1993)...................................................... 2, 11, 12, 23

2 Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987) .........................................................................................20, 21, 22

3 Monroe v. United Airlines, Inc.,

90 F.R.D. 638, 640 (N.D. Ill. 1981) ............................................................................................23
4
Mooney v. IBM,

5

Civil Action No. 03-323-KSF (E.D. Ky. 10/1/03) ........................................................................ 9

Oubre v. Entergy Operations, Inc.

6

522 U.S. 422, 424 (1998) ............................................................................................................ 16

7 Owens v. Bethlehem Mines Corp., 108 F.R.D. 207, 212 (S.D.W. Va. 1985).....................................................................................19

8 Pritchard v. Dent Wizard International Corp.,

210 F.R.D. 591 (S.D. Ohio 2002) ............................................................................................... 17
9
Realite v. Ark Restaurants Corp.,

10

7 F. Supp.2d 303, 306 (S.D.N.Y. 1998)...................................................................................... 18

Rosen v. Reckitt & Colman, Inc.,

11

77 FEP Cases [BNA] 370 (S.D.N.Y. 1994) ................................................................................24

12

Schwed v. General Electric Co., 159 F.R.D. 373, 375 (N.D.N.Y. 1995).................................................................................passim

13 Severtson v. Phillips Beverage Co.,

137 F.R.D. 264, at 266 [(D. Minn. 1991).................................................................................... 17
14
Sperling v. Hoffman-LaRoche, Inc.,

15

118 F.R.D. 392, 401 (D.N.J. 1988) .............................................................................................22

Thomforde v. IBM,

16

Civ. No. 02-CV-4817 (JNE/JGL) (D. Minn. 1/27/04) ..................................................................9

17

United States v. Cook, 795 F.2d 987, 993 (1st Cir. 1986) ............................................................................................... 23

18 Vaszlavik v. Storage Technology Corp.,

175 F.R.D. 672 (D. Colo. 1997)...........................................................................................passim
19
Viciedo v. New Horizons Computer, Learning Center of Columbus, Ltd.,

20

No. 2:01-CV-250, slip op. (S.D. Ohio Dec. 4, 2001).................................................................17

Federal Statutes 21 29 U.S.C. § 216(b) (1982 ed.) ..................................................................................................... 10, 16

22 29 U.S.C. § 626(b) (1982 ed.) ....................................................................................................... 1, 10

23 29 U.S.C. Section 626(d) .................................................................................................................. 13 Age Discrimination in Employment Act....................................................................................passim
24
Fair Labor Standards Act .............................................................................................................. 1, 23

25 Older Workers Benefit Protection Act .......................................................................................passim

26 Federal Rules Rule 23(a)(4), Fed. R. Civ. P............................................................................................................... 8
27 Rules 83 and 16(b), Fed. R. Civ. P................................................................................................ 1, 10

28
iii.

Ps&As In Support Of Motion To Approve Notice Of Action, To Certify Class For Purposes Of Count I Of The Amended Complaint, And To Compel IBM To Provide Names, Addresses, And Dates Of Birth Of Similarly Situated Employees Case No. C 03 04529 RMW

1

INTRODUCTION

2

Plaintiffs respectfully request that this Court: (1) authorize Plaintiffs to send notice of this

3 action to all employees age 40 and over terminated by IBM since July 7, 2001 in deferral states, and

4 since November 3, 2001 in non-deferral states; (2) conditionally authorize plaintiffs to proceed as

5 representatives of a class of individuals age 40 and over terminated by IBM since July 7, 2001 in

6 deferral states and since November 3, 2001 in non-deferral states with respect to the alleged viola-

7 tions of the OWBPA as asserted in Count I of the Amended Complaint; (3) compel IBM to provide

8 Plaintiffs in an electronically suitable format with the names, last-known addresses, and dates of

9 birth of all similarly situated employees; and (4) permit similarly situated employees 120 days to

10 notify the Court that they wish to opt-in to this action. A proposed notice and consent form are

11 attached to the Young Declaration as Exhibits 22 and 23.

12

Plaintiffs, William Syverson, et al., by and through the undersigned counsel, hereby move

13 this Court: 1) to approve the provision of notice of this action to similarly situated individuals as

14 permitted by the Supreme Court’s decision in Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165

15 (1989), and this Court’s determination in Church v. Consolidated Freightways, Inc., 137 F.R.D. 294

16 (N.D. Cal. 1991); 2) to authorize Plaintiffs to conduct this action as a representative action with

17 respect to Count I of the Amended Complaint, which asserts a violation of the Older Workers Bene-

18 fit Protection Act (“the OWBPA”), pursuant to Section 216(b) of the Fair Labor Standards Act, as

19 incorporated by Section 626(b) of the Age Discrimination in Employment Act (“the ADEA”), 29

20 U.S.C. § 626(b); and 3) to compel Defendant International Business Machines Corporation (“IBM”

21 or “the Employer”) to furnish Plaintiffs with the names, addresses, and dates of birth in an elec-

22 tronically suitable format of all employees age 40 and over whom IBM has terminated or informed

23 of their prospective termination since on or after July 7, 2001 if they live in a deferral state or on or

24 after November 3, 2001 if they live in a non-deferral state. The provision of notice of this action to

25 similarly-situated individuals is consistent with Sperling, 493 U.S at 170, which declared that the

26 vindication of rights under the ADEA “depend(s) on employees receiving accurate and timely notice

27 concerning the pendency of the collective action.” Applying Rules 83 and 16(b), Fed. R. Civ. P.,

28
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1 Sperling suggests that the Court “begin its involvement early, at the point of the initial notice, rather

2 than at some later time.” Id. at 171. Indeed, as one court has noted, “The Supreme Court’s decision

3 in Sperling clearly authorizes and, in fact, advocates that the district court exercise its discretion

4 early in the litigation to permit discovery of the names and addresses of discharged employees to

5 ensure that such potential plaintiffs are promptly and accurately notified.” Krueger v. New York

6 Telephone Company, 1993 WL 276058, at *1 (S.D.N.Y. July 21, 1993).

7

BACKGROUND

8

Defendant IBM is an international company which provides information technology solu-

9 tions to customers. Declaration of William Syverson (“Syverson Decl.”), ¶ 2. IBM provides services

10 ranging from “business transformation consulting, to software, hardware, fundamental research,

11 financing and the component technologies used to build larger services.” Id. This includes develop-

12 ment, manufacture, sale, and maintenance of computers to individuals, businesses, and public enti-

13 ties and the provision of computer technology and management services to such entities. Id. IBM

14 operates manufacturing facilities in, inter alia, San Jose, California; Rochester, Minnesota; East

15 Fishkill, Endicott, and Poughkeepsie, New York; Austin, Texas; and Burlington, Vermont. Syverson

16 Decl., ¶ 3. IBM employs approximately 315,000 individuals globally, approximately one-half of

17 whom have been employed by IBM for less than five years. Syverson Decl., ¶ 4.

18

Over the last several years IBM has engaged in a series of what it calls “resource actions”

19 which have resulted in the termination of over ten thousand and perhaps as many as twenty thousand

20 IBM employees based in the United States in the various business groups. Amended Complaint,

21 ¶ 11; Declaration of James Leas (“Leas Decl.”), ¶ 3. In addition thereto, IBM has terminated large

22 numbers of employees over the same time but not as part of any specific resource action. Amended

23 Complaint, ¶ 11; Leas Decl., ¶ 4. The resource actions and terminations have not necessarily resulted

24 in an overall reduction in IBM’s workforce, as IBM continues to recruit and hire employees whom

25 Plaintiffs allege are typically younger. Leas Decl., ¶ 8. For example, just recently, a manager from

26 IBM was quoted as stating that for 2004, IBM intended to increase its hiring of college graduates in

27 the United States from 40-50%. Leas Decl., ¶ 8 and Exhibit 3 thereto.

28
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1

Employees terminated by IBM as part of the various resource actions and reductions in force

2 have been eligible to receive severance pay equal to two weeks of pay per year of service up to 26

3 weeks provided that they first sign a General Release and Covenant Not to Sue (referred to by IBM

4 as “Release”). Syverson Decl., ¶ 7. Although the resource actions and terminations have occurred at 5 different times, the language of the Release drafted by IBM has been materially identical.1 Declara-

6 tion of Jeffrey Neil Young (“Young Decl.”), ¶ 2 and Exhibits 1-16 thereto; Exhibits L and M to

7 Amended Complaint; Exhibits 1 to Declarations of Dale Cahill, Rolf Marsh, James Payne and

8 Antonio Rivera; (“Cahill Decl.,” “Marsh Decl.,” “Payne Decl.,” and “Rivera Decl.,” respectively);

9 Exhibit 3 to Syverson Decl.; Exhibit 2 to Leas Decl.; Exhibit 1 to Declaration of David Mazgaj

10 (“Mazgaj Decl.”). In every instance, the Release states (emphasis added):

11

In exchange for the sums and benefits received pursuant to the terms

of the

12

____ [Resource Action or Separation Allowance Plan],

[name of employee] agrees to release and hereby does release

13

International Business Machines Corporation, its subsidiaries and

affiliates, and its and their benefits plans (collectively, hereinafter

14

“IBM”), from all claims, demands, actions or liabilities you may have

against IBM of whatever kind including, but not limited to, those that

15

are related to your employment with IBM, the termination of that

employment, or other severance payments or your eligibility for

16

participation in a Retirement Bridge, … or claims for attorneys’ fees.

17

* * * *

18

. . . You also agree that this release covers, but is not limited to, claims

arising from the Age Discrimination in Employment Act of 1967, as

19

amended . . .

20

* * * *

21

You agree that you will never institute a claim of any kind against

IBM, or those associated with IBM including, but not limited to,

22

claims related to your employment with IBM or the termination of that

employment or other severance payments or your eligibility for

23

participation in the retirement bridge . . .. If you violate this covenant

not to sue by suing IBM or those associated with IBM, you agree that

24

you will pay all costs and expenses of defending against the suit

incurred by IBM or those associated with IBM, including reasonable

25

attorneys’ fees, and all further costs and fees, including attorneys’ fees,

26 1 The language of the Releases varies slightly with respect to the Retirement Bridge. For example, Exhibit L to the Amended Complaint states “the Retirement Bridge Leave of Absence,” while Exhibit M to the Amended Complaint
27 states “a Retirement Bridge or non-vested IBM benefits plans.” Exhibit L also refers to a “Retirement Bridge Leave of Absence” while Exhibit M only references a “retirement bridge.” Some of the Releases have a different ¶ 7 pertaining to
28 California and a different non-competition clause in ¶ 8.
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IBM To Provide Names, Addresses, And Dates Of Birth Of Similarly Situated Employees
Case No. C 03 04529 RMW

incurred in connection with collection. This covenant not to sue does

1

not apply to actions based solely under the Age Discrimination in

Employment Act of 1967, as amended. That means that if you

2

were to sue IBM or those associated with IBM only under the Age

Discrimination in Employment Act of 1967, as amended, you

3

would not be liable under the terms of this Release for their

attorneys’ fees and other costs and expenses of defending against

4

the suit. This Release does not preclude filing a charge with the U.S.

Equal Employment Opportunity Commission.

5

6

Named Plaintiff Ruth Alice Boyd was employed by IBM at its Burlington, Vermont facility

7 in a variety of positions, most recently in its Microelectronics Division as a senior lab specialist,

8 from September 17, 1984 to June 4, 2002. Declaration of Ruth Alice Boyd (“Boyd Decl.”), ¶ 1.

9 After learning of her termination, Boyd executed the Release. Boyd Decl., ¶ 3. On or about August

10 23, 2002, within 300 days of learning of her termination, Boyd filed a charge of discrimination with

11 the Vermont Office of the Attorney General and the Equal Employment Opportunity Commission

12 (“EEOC”), alleging, inter alia, that her termination was part of an unlawful company-wide practice

13 of terminating employees age 45 and over in violation of the ADEA. Boyd Decl., ¶ 4. Boyd’s charge

14 states, “Respondent gave me a document entitled, ‘Microelectronics Division Resource Action

15 Employee Information Package.’ This document listed the ages of Respondent’s employees,

16 including those employees selected to be laid off and those not selected. Upon information and

17 belief, the data in the document shows that employees over the age of 45 years old are more likely to

18 be laid off by Respondent.” Boyd Decl., ¶ 4 and Exhibit 1 thereto. In a letter dated February 3, 2003

19 provided to the EEOC in response to IBM’s submission, Boyd declared, “in reviewing the data

20 supplied by IBM, the overall pattern of age discrimination is obvious, demonstrating that the

21 probability of being laid off increased exponentially with increased age.” Boyd Decl., ¶ 5 and

22 Exhibit 2 thereto. Boyd further asserted that the Release did not comply with the Older Workers

23 Benefit Protection Act, declaring, inter alia, “the entire release in [sic] invalid since it does not meet

24 the requirements of the Older Workers Benefit Protection Act. . . .” Id.

25

Named Plaintiff Dale Cahill was employed by IBM at its Burlington, Vermont facility from

26 February 16, 1982 to August 5, 2002 as a maintenance technician. Cahill Decl., ¶ 1; Exhibit E to

27 Amended Complaint. After learning of his termination, Cahill executed a Release with the language

28
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1 quoted above. Cahill Decl., ¶ 4 and Exhibit 1 thereto. On or about September 3, 2002, within 300

2 days of learning of his termination, Cahill filed a charge of age discrimination with the Vermont

3 Office of the Attorney General and the Equal Employment Opportunity Commission (“EEOC”),

4 alleging, inter alia, that his termination was part of an unlawful company-wide practice of ter-

5 minating employees age 40 and over in violation of the ADEA. Cahill Decl., ¶ 3. Cahill’s charge

6 references a document entitled “Microelectronics Division Resource Action Employee Information

7 Package” prepared by IBM and stated that “the data in the document shows that employees in my

8 job category who were over age 40 were more likely to be laid off by Respondent.” Cahill Decl., ¶ 3;

9 Exhibit E to Amended Complaint.

10

Names Plaintiff James Payne was employed by IBM at its San Jose, California facility from

11 August 1979 to August 15, 2002 in IBM’s Storage Systems Group as a Mechanical Design

12 Specialist. Payne Decl., ¶ 1. After learning of his termination, Payne executed a Release with the

13 language quoted above. Payne Decl., ¶ 3 and Exhibit 1 thereto. On or about October 17, 2002, within

14 300 days of learning of his termination, Payne filed a charge of age discrimination with the Cali-

15 fornia Department of Fair Employment and Housing and the EEOC. Payne Decl., ¶ 4 and Exhibit 2

16 thereto. At the same time, Payne provided the EEOC with a questionnaire in which he alleged, inter

17 alia, that “[m]y layoff in San Jose is part of a national trend of age discrimination by IBM against

18 older employees.” Payne Decl., ¶ 5 and Exhibit 3 thereto.

19

Named Plaintiff William Syverson was employed by IBM at its Burlington, Vermont facility

20 from February 4, 1980 to August 5, 2002 in its Microelectronics Division as a senior engineer.

21 Syverson Decl., ¶ 1; Exhibit B to Amended Complaint. After learning of his termination, Syverson

22 executed a Release with the language quoted above. Syverson Decl., ¶ 7 and Exhibit 3 thereto. On or

23 about October 23, 2002, within 300 days of learning of his termination, Syverson filed a charge of

24 age discrimination with the Vermont Office of the Attorney General and the EEOC. An attachment

25 accompanying Syverson’s charge declares, “I believe IBM employees beyond age 40 were illegally,

26 systematically, methodically targeted” for termination. Syverson Decl., ¶ 6; Exhibit B to Amended

27 Complaint. Syverson supplied the EEOC with charts showing the discriminatory impact of IBM’s

28
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1 June 2002 Microelectronics Division Resource Action. Id.

2

Named Plaintiff Antonio Rivera was employed by IBM at its Somers, New York facility

3 from November 24, 1980 to June 28, 2002 in IBM Global Services as a Program Manager. Rivera

4 Decl., ¶ 1. After learning of his termination, Rivera executed a Release with the language quoted

5 above. Rivera Decl., ¶ 3 and Exhibit 1 thereto. On or about March 14, 2003, within 300 days of

6 learning of his termination, Rivera filed a charge of age discrimination with the EEOC, alleging,

7 inter alia, that his termination was part of an unlawful company-wide practice of terminating

8 employees age 40 and over in violation of the ADEA to save “billions of dollars, and future pay9 ments to the pension plan.” Rivera Decl., ¶ 4; Exhibit C to Amended Complaint.2 Rivera’s cover

10 letter (dated March 13, 2003) referenced layoffs in New York, Vermont, Minnesota, California,

11 North Carolina and other states and asked that the EEOC treat his charge as a class action. Id. Rivera

12 further supplied the EEOC with the names, addresses, and/or phone numbers of some similarly

13 situated employees. Id.

14

Named Plaintiff Rolf Marsh was employed by IBM’s Global Services Division. Marsh Decl.,

15 ¶ 1. Marsh worked out of his home or at a customer site as a Senior I/T specialist and reported to

16 managers all over the country from June 1984 to April 4, 2003. After learning of his termination,

17 Marsh executed a Release with the language quoted above. Marsh Decl., ¶ 3 and Exhibit 1 thereto.

18 On or about July 8, 2003, within 300 days of learning of his termination, Marsh filed a charge of age

19 discrimination with the EEOC alleging, inter alia, that his termination was in violation of the ADEA

20 and that IBM’s “layoff policy was discriminatory towards individuals who were 40 years of age and 21 older.” Marsh Decl., ¶ 4; Exhibit D to Amended Complaint.3

22

The EEOC dismissed each of the Named Plaintiffs' class-based age discrimination charges

23 by letters dated on or after July 9, 2003. Boyd Decl., ¶ 6 and Exhibit 3 thereto; Cahill Decl., ¶ 5 and

24 Exhibit 2 thereto; Marsh Decl., ¶ 5 and Exhibit 2 thereto; Payne Decl., ¶ 6 and Exhibit 4 thereto;

25
26 2 Paragraph 8(b) of the Amended Complaint mistakenly states that Rivera filed his charge on February 3, 2003. As stated in Paragraph 4 of his Declaration, the charge actually was filed on March 14, 2003.
27 3 Named Plaintiff Sylvia Jones did not file a charge of age discrimination. The charges filed by Named Plaintiffs Jack Friedman, Paul Gromkowski and Walter Maslak did not make claims of a company-wide practice of age discrimination.
28 Young Decl., ¶ 3 and Exhibits 17-19 thereto.
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Ps&As In Support Of Motion To Approve Notice Of Action, To Certify Class For Purposes Of Count I Of The Amended Complaint, And To Compel IBM To Provide Names, Addresses, And Dates Of Birth Of Similarly Situated Employees Case No. C 03 04529 RMW

1 Rivera Decl., ¶ 5 and Exhibit 3 thereto. The letters stated, "The waiver you signed met the Older

2 Workers Benefit Protection Act (OWBPA) criteria and was not the product of economic duress." In

3 addition thereto, each of the Named Plaintiffs received a form right to sue entitled "Dismissal and

4 Notice of Right."

5

Plaintiffs instituted this action against IBM on or about October 7, 2003. Exhibit A to the

6 Complaint referenced 126 individuals who had authorized that suit be brought in their behalf. On

7 December 19, 2003, the ten Named Plaintiffs filed an Amended Complaint and Exhibit A with 156

8 names. IBM was served on December 24, 2003. Count I of the Amended Complaint alleges that the

9 Release signed by the Plaintiffs violates the Older Workers Benefit Protection Act (“OWBPA”), 29

10 U.S.C. § 626(f), and therefore does not prohibit Plaintiffs from suing IBM for age discrimination

11 under the ADEA. Count II of the Amended Complaint alleges that IBM’s terminations since January

12 1, 2001 have had a disparate impact upon employees age 40 and older as well as upon proposed

13 subclasses of age 45, 50, 55, and 60 and older on a company-wide, division-wide, and facility-wide

14 basis. Count III of the Amended Complaint alleges that IBM has been engaged in a pattern and

15 practice of age discrimination in its reduction in force since January 1, 2001 and ongoing. Count IV

16 of the Amended Complaint alleges that the terminations since January 1, 2001 on the basis of age

17 have been willful. Finally, Count V of the Amended Complaint alleges that IBM’s reduction in force

18 since January 1, 2001 has violated the Employee Retirement Income Security Act (“ERISA”), 29

19 U.S.C. § 1001 et seq., insofar as the reduction in force has been designed to avoid the cost of and

20 deny retirement and health benefits to the terminated employees.

21
22 1.
23 24 25

ARGUMENT
BECAUSE THIS COURT’S DETERMINATION ON IBM’S POTENTIALLY DISPOSITIVE MOTION WILL HAVE A SIGNIFICANT PRACTICAL AND POSSIBLY PRECLUSIVE IMPACT UPON OTHER SIMILARLY SITUATED INDIVIDUALS, THIS COURT SHOULD FIRST DECIDE THE NOTICE, CLASS CERTIFICATION, AND DISCOVERY ISSUES.
Applying the Supreme Court’s decision in Sperling, 493 U.S. at 165, and this Court’s

26 decision in Harriss v. Pan American World Airways, Inc., 74 F.R.D. 24 (N.D. Cal. 1977), this Court

27 first should address the instant motion to sanction notice, certify the class, and compel discovery of

28
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Ps&As In Support Of Motion To Approve Notice Of Action, To Certify Class For Purposes Of Count I Of The Amended Complaint, And To Compel IBM To Provide Names, Addresses, And Dates Of Birth Of Similarly Situated Employees Case No. C 03 04529 RMW

1 the names, addresses, and dates of birth of similarly situated employees before deciding IBM’s 2 potentially dispositive motion with respect to the effect of the Release.4 The Court should do so

3 because of the significant practical and potential legally preclusive effect that the decision on IBM’s

4 motion necessarily will have upon thousands of similarly situated individuals who IBM has

5 terminated by IBM since July 7, 2001 and who are entitled to have the opportunity to be heard on the

6 validity of the Release.

7

Although there is some superficial appeal to first decide IBM’s potentially dispositive motion

8 without addressing issues of notice, certification, and discovery, closer scrutiny does not bear this

9 out. In Harriss, 74 F.R.D. at 43, this Court recognized that decisions whether to certify a class

10 impact upon both current and potential class members. Discussing the need to fairly and adequately

11 protect the interests of the class under Rule 23(a)(4), Fed. R. Civ. P., the Court stated that, “The

12 potential res judicata, or at least collateral estoppel effect of any judgment in the action makes it

13 imperative that the absent members on whom it works will not be deprived of their day in court. See, 14 EEOC v. Detroit Edison Co., 515 F.2d 301, 311 (6th Cir. 1975).”

15

Although Count I of the instant case involves an action under the ADEA, not Title VII, and

16 as such is not subject to the requirements of Rule 23, Church, 137 F.R.D. at 304-07, “Rule 23

17 procedures may be helpful in the management of an ADEA class action.” Id. at 306. Indeed, similar,

18 if not stronger, concerns than those in Harriss militate in favor of issuing notice of this action to

19 employees who are similarly situated to the named plaintiffs at the outset of this litigation, before

20 IBM’s dispositive motion is decided. First, although this is an opt-in, rather than an opt-out action,

21 this Court’s determination of the validity of the Release is likely to have a major impact upon

22 similarly situated individuals terminated by IBM who may desire to bring claims for age

23 discrimination here and elsewhere. Second, because many potential plaintiffs who are similarly

24 situated to Plaintiffs did not file their own individual charges with the EEOC, but rather still may

25 join the instant action under the single filing rule, see Bean v. Crocker National Bank, 600 F.2d 754,

26
27 4 By stipulation dated January 16, 2004 IBM indicated its intent to file with this Court no later than February 12, 2004 a Rule 12(b)(6) motion seeking to dismiss the Amended Complaint. Upon information and belief, that motion is to be
28 premised, at least in part, upon the effect of the Release signed by all of the named plaintiffs. Young Decl., ¶ 6.
8 .
Ps&As In Support Of Motion To Approve Notice Of Action, To Certify Class For Purposes Of Count I Of The Amended Complaint, And To Compel IBM To Provide Names, Addresses, And Dates Of Birth Of Similarly Situated Employees Case No. C 03 04529 RMW

1 759 (9th Cir. 1979),5 if they are not permitted the opportunity to join this suit, they may be barred by

2 the applicable statute of limitations from bringing or joining another action here or elsewhere. Third,

3 other courts are likely to be influenced by this Court’s opinion, and should that opinion be adverse to

4 plaintiffs, similarly situated individuals likely would have a difficult time persuading other counsel

5 to undertake an age discrimination action against IBM where the employee has executed a similar 6 release.6 Given the significant impact of this Court’s determination and its potential legally preclu-

7 sive effect, the other similarly situated employees should be given the opportunity to be heard with

8 regard to this critical matter through representation either by the undersigned, by counsel of their

9 own choosing, or pro se. See generally, EEOC v. Pan Am, 52 FEP Cases (BNA) 929, 936-937 (N.D.

10 Cal. 1988), stating “[W]here an interest is threatened, notice is required” and “Those whose rights

11 are prejudiced by the outcome of the [ADEA] litigation, are entitled to constitutionally sufficient

12 notice and an opportunity to respond.”

13

Not only does the significant and potentially preclusive effect of this Court’s determination

14 with respect to the validity of the Release counsel that notice first be provided to other similarly

15 situated employees so that they may be heard, but the Supreme Court’s decision in Sperling, 493

16 U.S. at 165, buttresses Plaintiffs’ request that the Court entertain this motion prior to deciding IBM’s

17 dispositive motion. In Sperling, the Supreme Court considered whether a district court faced with a

18 suit for violation of the ADEA may authorize and facilitate notice of the pending action. The

19 employees there, like the Plaintiffs here, sought discovery of the names and addresses of similarly

20 situated employees and requested that the court authorize them to provide notice to all potential

21 plaintiffs who had not yet filed consent forms to opt in to the case. Sustaining the determination of

22

23 5 In Bean, the Ninth Circuit held that where an employee files a suit for discrimination under the ADEA as a

representative action after first having filed a class-based charge of discrimination with the EEOC, the statute of

24

limitations is tolled and that other individuals who did not file charges but who could have done so within 180 or 300 days of the named plaintiff’s EEOC charge can join the action, depending on whether the employee resides in a deferral

or non-deferral state. 25 6 Plaintiffs are aware that there are at least two other cases pending against IBM where IBM also has moved for

26

dismissal of or summary judgment on the Complaint based upon the fact that former IBM employees there signed the Release. Young Decl., ¶ 5. Neither of those cases was brought as a representative action. Id. In Mooney v. IBM, Civil

Action No. 03-323-KSF (E.D. Ky. 10/1/03), the Kentucky district court denied IBM’s motion to dismiss. Id. The

27 Minnesota district court reached the opposite conclusion on a summary judgment motion in Thomforde v. IBM, Civ. No. 02-CV-4817 (JNE/JGL) (D. Minn. 1/27/04). Id. Copies of the Mooney and Thomforde slip opinions are attached as

28 Exhibits 20 and 21 to the Young Declaration.

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IBM To Provide Names, Addresses, And Dates Of Birth Of Similarly Situated Employees

Case No. C 03 04529 RMW

1 the New Jersey District Court and the Third Circuit, which had concluded that such discovery and

2 court-ordered notice was permissible, the Supreme Court stated, “We hold that district courts have

3 discretion, in appropriate cases, to implement 29 U.S.C. § 216(b) (1982 ed.), as incorporated by 29

4 U.S.C. § 626(b) (1982 ed.), in ADEA actions by facilitating notice to potential plaintiffs.” Id. at 169.

5 The Supreme Court noted that Section 216(b)’s opt-in procedure “must grant the court the requisite

6 procedural authority to manage the process of joining multiple parties in a manner that is orderly,

7 sensible, and otherwise contrary to statutory commands.” Id. at 171. Relying upon Rules 83 and 16

8 of the Federal Rules of Civil Procedure, the Supreme Court concluded:

9

Because trial court involvement in the notice process is inevitable in

cases with numerous plaintiffs where written consent is required by

10

statute, it lies within the discretion of a district court to begin its

involvement early, at the point of the initial notice, rather than at some

11

later time. One of the most significant insights that skilled trial judges

have gained in recent years is the wisdom and necessity for early

12

judicial intervention in the management of litigation. A trial court can

better manage a major ADEA action if it ascertains the contours of the

13

action at the outset.

14 Id. at 171-72 (citations omitted) (emphasis added).

15

The Supreme Court’s encouragement of early judicial intervention in representative ADEA

16 actions such as the instant case was noted with approval by this Court in Church, 137 F.R.D. at 300.

17 As discussed in greater detail infra, upon concluding that the plaintiffs had met all of the procedural

18 prerequisites of the ADEA and that there were other prospective similarly situated employees, the

19 Church court sanctioned notice and ordered defendant to provide plaintiffs with the names and

20 addresses of the putative class, which consisted of hundreds, if not thousands, of prospective

21 plaintiffs. Id. at 298.

22

Following Sperling, not only this Court but other courts uniformly appear to have ordered the

23 early provision of names and addresses of potential plaintiffs and have authorized notice of the

24 action to potential plaintiffs. See, e.g., Schwed v. General Electric Co., 159 F.R.D. 373, 375

25 (N.D.N.Y. 1995) (“Moreover, even where later discovery proves the putative class members to be

26 dissimilarly situated, notice to those preliminary identified as potential plaintiffs prior to full

27 discovery is appropriate as it may further the remedial purpose of the ADEA”) (emphasis added);

28
10.
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1 Krueger, 1993 WL 276058, at *2 (“[E]ven if plaintiffs’ claims turn out to be meritless or, in fact, all

2 the plaintiffs turn out not to be similarly situated, notification at this stage rather than after further

3 discovery may enable more efficient resolution of the underlying issues in this case.”); Vaszlavik v.

4 Storage Technology Corp., 175 F.R.D. 672 (D. Colo. 1997); Allen v. Marshall Field & Company, 93

5 F.R.D. 438 (N.D. Ill. 1982) (pre-Sperling case ordering notice); Braunstein v. Eastern Photographic

6 Laboratories, Inc., 600 F.2d 335 (2d Cir. 1979) (pre-Sperling case). Accordingly, this Court should

7 address the discovery, notification, and class authorization issues now before considering IBM’s

8 potentially dispositive motion.

9 2.
10

THE COURT SHOULD SANCTION NOTICE OF THIS ACTION TO ALL SIMILARLY SITUATED EMPLOYEES.

11

As set forth above, this Court’s decision on IBM’s potentially dispositive motion to dismiss

12 the Amended Complaint based upon the language of the Release will have a significant impact not

13 only upon individuals who already have consented to join this action but also upon prospective

14 plaintiffs, who may in fact be precluded from bringing suit if not provided with notice of this action.

15 The Supreme Court’s decision in Sperling, 493 U.S. at 165, counsels but does not compel early

16 intervention of the court in representative actions like the one at bar, and authorizes provision of

17 notice of the suit to individuals who are similarly situated to the named Plaintiffs. This Court’s

18 subsequent decision in Church, 137 F.R.D. at 294, strongly supports Plaintiffs’ request that this

19 Court authorize Plaintiffs to provide notice now of the instant action to similarly situated employees.

20 In Church, this Court quoted Sperling with approval and noted in particular that “court approval and

21 facilitation of notice will not only alleviate the potential for ‘misuse of the class device, as by mis-

22 leading communications,’ but will also help serve the goals of ‘avoiding a multiplicity of duplicative

23 suits and setting cut-off dates to expedite disposition of the action.’” Church, 137 F.R.D. at 300.

24

While Sperling and Church may not require this Court to sanction notice, the failure to do so

25 would be unfair and contrary to the remedial purposes of the ADEA. As the Seventh Circuit

26 expressed in Allen, 93 F.R.D. at 442, “It would be anomalous for Congress to provide a class action

27 remedy, and, at the same time require that a class action’s existence be hidden from potential class

28
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1 members.” Accord: Krueger, 1993 WL 276058, at *2 (quoting Frank v. Capital Cities Communica-

2 tions, Inc., 88 F.R.D. 674, 676 (S.D.N.Y. 1981) (“[T]he notice machinery contemplated by the

3 ADEA, by reaching out to potential plaintiffs, may further the statute’s remedial purpose.”); Schwed,

4 159 F.R.D. at 375-76 (remedial nature of ADEA warrants notice).

5

In Church, a case virtually on all fours with the instant case, this Court authorized the provi-

6 sion of notice to similarly situated employees. Like the instant case, plaintiffs in Church sought court

7 authorization to provide notice of their ADEA suit to similarly situated employees. Like the instant

8 case, the employees to whom plaintiffs sought to give notice worked in a variety of jobs in different

9 locations, reported to different supervisors, and were terminated on different dates over a long period

10 of time. Church, 137 F.R.D. at 298. The Church Court established a three-step process before it

11 agreed to authorize notice to the prospective plaintiffs. First, the Court required the named plaintiffs

12 to show that they had complied with the procedural prerequisites to bring a civil action on behalf of

13 themselves and other similarly situated employees. Second, the named plaintiffs had to demonstrate

14 that the proposed opt-in plaintiffs were similarly situated. Finally, the named plaintiffs had to define

15 the scope of the proposed class based upon the timing of their charges. Id. at 300. After concluding

16 that the named plaintiffs in Church had complied with the procedural prerequisites to bring a civil

17 action on behalf of themselves and other similarly situated individuals and that there were other

18 employees who were similarly situated, the Court defined the scope of the class and ordered notice.

19

Here, because plaintiffs can demonstrate that they complied with all procedural prerequisites

20 and have alleged and can show that there are similarly situated individuals, this Court, adhering to

21 the Church test, should authorize the provision of notice in the instant matter to all employees who,

22 like the named Plaintiffs are age 40 and over and were terminated by IBM after July 7, 2001 (or 23 November 3, 2001, if living in a non-deferral state).7

24

25 7 Plaintiffs have filed today a Motion for Leave to File Second Amended Complaint, inter alia, to add Daniel Moczan as a Named Plaintiff. IBM terminated Moczan on April 2, 2002, and he filed a charge of age discrimination with the New

26

York office of the EEOC on May 2, 2002. Declaration of Daniel Moczan (“Moczan Decl.”), ¶¶ 2, 4. His charge avers, "On April 2, 2002 I was let go with about 700 others in my area. All but about 100 were over the age of 40. I had been

with IBM since 1977, eligible for retirement in 21 months at age 55.” Moczan Decl., ¶ 4 and Exh. 1 thereto. Plaintiffs

27 believe this to be the earliest charge which they have filed which would have put the EEOC on notice of the class-based

nature of their claims. The Moczan charge would make the relevant statute of limitations July 7, 2001 in deferral states

28 and November 3, 2001 in non-deferral states.

12.

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Case No. C 03 04529 RMW

A. Plaintiffs Have Complied With All Procedural Prerequisites To Bring This

1

Action.

2

In order to proceed as a representative action and warrant notice of the action to similarly

3 situated employees, Plaintiffs must first show that they have complied with the procedural requisites

4 of the ADEA. Here, as shown in their Declarations, Named Plaintiffs Boyd, Cahill, Payne, Syverson,

5 Rivera, and Marsh, and prospective named plaintiff Moczan, filed charges of age discrimination

6 with the EEOC within 300 days of learning of their termination, as required by 29 U.S.C. Section 7 626(d).8 In addition to timely filing a charge of discrimination with the EEOC, Plaintiffs must also

8 show that they gave the EEOC notice of the class nature of the claims alleged against IBM so that

9 the EEOC can attempt to fulfill the conciliatory purpose of § 626(d). Church, 137 F.R.D. at 300-301.

10 Here, the charges and documents filed by named Plaintiffs Boyd, Cahill, Syverson, Rivera and

11 Marsh and prospective named plaintiff Moczan all served to put the EEOC (and IBM) on notice that

12 the claims of age discrimination were not simply limited to themselves but extended to other 13 individuals.9 The Boyd charge declares that data demonstrated that employees over age 45 were

14 more likely to be laid off by IBM. See Exhibit 1 to Boyd Decl. Moreover, in a letter to the EEOC,

15 Boyd stated, “in reviewing the data supplied by IBM, the overall pattern of age discrimination is

16 obvious, demonstrating that the probability of being laid off increased exponentially with increased

17 age and “the entire release in [sic] invalid since it does not meet the requirements of the Older

18 Workers Benefit Protection Act . . .” Exhibit 2 to Boyd Decl. The Cahill charge states in pertinent

19 part that “the data in the document [furnished by IBM in attempted compliance with the OWBPA]

20 shows that employees in my job category who were over age 40 were more likely to be laid off by

21 respondent.” See Exhibit E to the Amended Complaint. Payne filed a Questionnaire in which he

22 stated, “my layoff in San Jose is part of a national trend of age discrimination by IBM against older

23 workers.” See Exhibit 3 to Payne Decl. The Syverson charge references a “pattern of age discrimina-

24

8 Payne worked for IBM in California; Boyd, Cahill and Syverson worked for IBM in Vermont; Rivera and Moczan 25 worked for IBM in New York; Marsh worked everywhere but filed his charge in Washington. California, Vermont, New

York and Washington are 300-day deferral states. 29 U.S.C. §§1626.7-1626.10. Each of the named Plaintiffs’

26 Declarations shows that s/he filed a charge of age discrimination within 300 days of learning of his or her termination. Syverson Decl., ¶ 6; Boyd Decl., ¶ 4; Cahill Decl., ¶ 3; Marsh Decl., ¶ 4; Payne Decl., ¶ 4; and Rivera Decl., ¶ 4. See

27

also Moczan Decl., ¶ 4. 9 See Boyd Decl., ¶ 4; Cahill Decl., ¶ 3; Payne Decl., ¶ 5; Syverson Decl., ¶ 6; Rivera Decl., ¶ 4; and Marsh Decl., ¶ 4.

28 See also Moczan Decl., ¶ 4.

13.

Ps&As In Support Of Motion To Approve Notice Of Action, To Certify Class For Purposes Of Count I Of The Amended Complaint, And To Compel

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Case No. C 03 04529 RMW

1 tion” “buried in the mass of numbers” and information provided by IBM and references an increase

2 in probability of being laid off by age, based upon charts Syverson supplied to the EEOC. See

3 Exhibit B to Amended Complaint. The cover letter to Rivera’s charge expressly asked that the

4 EEOC “help us make this a class case.” See Exhibit C to Amended Complaint. Rivera’s charge and

5 supporting documents reference that numerous other individuals had been laid off in New York,

6 Vermont, Minnesota, California, North Carolina, and elsewhere and provided statistical analyses of

7 the layoffs purporting to show discrimination within various job titles at IBM. Id.; see also Exhibit 2

8 to Rivera Decl. The Marsh charge states that in addition to the fact that Marsh felt that he was

9 discriminated against individually, “I further believe Respondent’s layoff policy was discriminatory

10 towards individuals who are 40 years of age and older.” See Exhibit D to Amended Complaint. The

11 Moczan charge alleges that of 700 employees terminated by IBM, all but about 100 were over age

12 40. See Exhibit 1 to Moczan Decl.

13

While it is true that none of the aforementioned charges and documents expressly states that

14 the charges were filed on behalf of the charging party and other “similarly situated” individuals, this

15 Court’s decision in Church makes clear that no such magic words are required to maintain a repre-

16 sentative action. Church, 137 F.R.D. at 301-02. Rather, all that is required is to place the EEOC on

17 notice of the class-based notice of the discrimination. Id. at 302. Moreover, as Church instructs, in

18 assessing whether the EEOC was placed on notice, “it should suffice that the EEOC has notice from

19 the charge or notice in fact, however served, so that it can begin the conciliation process.” Id.

20 (emphasis added). Here, the cover letters, information, charts, and documents supplied by Boyd,

21 Cahill, Payne, Syverson, Rivera, Marsh, and Moczan show that the EEOC received substantial

22 notice that the complaints were not limited to the individuals who filed the charges.

23

That the EEOC regarded these matters as class-based is perhaps best demonstrated by the

24 EEOC’s own handling of the cases. Many, albeit not all, of the charges filed against IBM, including

25 those filed by employees living in Arizona, Colorado, New Jersey, New York, North Carolina,

26 Pennsylvania, Vermont, and Washington, were consolidated for handling in the Boston office of the

27 EEOC irrespective of the date of termination or resource action. Young Decl., ¶ 4. Notably, some of

28
14.
Ps&As In Support Of Motion To Approve Notice Of Action, To Certify Class For Purposes Of Count I Of The Amended Complaint, And To Compel IBM To Provide Names, Addresses, And Dates Of Birth Of Similarly Situated Employees Case No. C 03 04529 RMW

1 the named plaintiffs (Cahill, Syverson, Rivera, and Maslak), as well as others who have already

2 opted in to file to this suit, received the same answer from the EEOC; the charge was dismissed

3 because the EEOC concluded (wrongly) that the Release complied with the OWBPA. See Exhibits

4 F, G, I, and K to the Amended Complaint. In any event, as this Court stated in Church, 137 F.R.D. at 5 303, “As the Ninth Circuit held in Albano v. Schering-Plough Corp., 912 S.2d 384 (9th Cir. 1990),

6 the EEOC’s failure to investigate and conciliate cannot be held against the individual (or the class he

7 represents). What controls is that the EEOC be given an opportunity, not that the EEOC used that

8 opportunity.”

9

Accordingly, the text of the charges filed by the Plaintiffs, the information provided in sup-

10 port of those charges, and the EEOC’s own handling of the charges all demonstrate that the EEOC

11 received timely and adequate notice of the class-based nature of these charges. Thus, the Court

12 should conclude that Plaintiffs complied with all procedural prerequisites necessary for the Court to

13 authorize notice of this suit to similarly situated individuals.

14

B. The Named Plaintiffs Are Similarly Situated To The Proposed Class With

Respect To Count I Of The Amended Complaint.

15

16

In addition to meeting the procedural prerequisites, Plaintiffs must also show that they are

17 similarly situated to other prospective members of the class. Church, 137 F.R.D. at 300. The

18 named plaintiffs in this case seek authorization to represent individuals age 40 and over who have

19 been terminated by IBM since July 7, 2001 (November 3, 2001 in non-deferral states) and who

20 signed IBM’s Release in exchange for a severance payment. At the current time, named Plaintiffs

21 seek to show that they are similarly situated to other employees only with respect to Count I of the

22 Amended Complaint, which avers that the language of the Release on its face violates the OWBPA.

23 See Amended Complaint, ¶ 17. The named Plaintiffs do not seek at this time to show that they are

24 similarly situated to other employees with respect to the age-based disparate impact, disparate 25 treatment, and ERISA claims asserted in Counts II, III, IV, and V of the Amended Complaint.10 In

26 10 Should this Court find in IBM’s favor that the Release executed by the Plaintiffs on its face complies with the

27

OWBPA, the remaining claims of the Amended Complaint largely would be precluded. Some individuals might still be able to show circumstances unique to them preclude dismissal. Plaintiffs concede that it would be premature and a waste

of judicial resources to decide at this time whether they are similarly situated to others for purposes of Counts II, III, and

28 IV and/or the scope of appropriate class or subclasses for those Counts. Since Count V states a claim for violation of

15.

Ps&As In Support Of Motion To Approve Notice Of Action, To Certify Class For Purposes Of Count I Of The Amended Complaint, And To Compel

IBM To Provide Names, Addresses, And Dates Of Birth Of Similarly Situated Employees

Case No. C 03 04529 RMW

1 determining whether Plaintiffs are in fact similarly situated to other employees for purposes of the 2 alleged OWBPA violation,11 this Court does not, however, apply the familiar Rule 23 test. As this

3 Court emphasized in Church, 137 F.R.D. at 304-307, a representative action for violation of the

4 provisions of ADEA is not subject to the prerequisites of Rule 23 of the Federal Rules of Civil 5 Procedure. Quoting Kinney Shoe Corp. v. Vorhes, 564 F.2d 859 (9th Cir. 1977), this Court declared,

6 Church, 137 F.R.D. at 305, “The clear weight of authority holds that Rule 23 procedures are inap-

7 propriate for the prosecution of class actions under 216(b).” Unlike with a Rule 23 class action,

8 Plaintiffs here need not show numerosity, commonality, typicality, or (arguably) even adequacy of

9 representation. See Flores v. Lifeway Foods, Inc., 289 F. Supp. 1042, 1044 (N.D. Ill. 2003). Rather,

10 as this Court explained in Church, 137 F.R.D. at 306:

11

[T]he Court agrees with plaintiffs that requiring ADEA plaintiffs to

show that common questions of law or fact predominate over

12

questions affecting only individual members under Rule 23(b)(3) is far

more stringent a test than the similarly situated requirement under

13

Section 216(b). Because, ADEA is a remedial statute which is to be

liberally construed in light of its purpose, the Court believes that

14

ADEA plaintiffs, at least at this stage of the litigation, should not have

to show that common questions of law or fact predominate over

15

individual questions.

16

To the extent that the ability of the named plaintiffs to fairly and adequately protect the

17 interests of the class must be assured, that determination is nowhere near so important in an ADEA

18 action where individuals must opt in rather than opt out. Id.

19

Like this Court, other courts also have concluded that the standard for showing that

20 employees are similarly situated for purposes of notice of an action under the ADEA is far less

21 rigorous than under Rule 23. For example, in Allen, 93 F.R.D. at 441, the district court declared,

22 “[T]he better known and more frequently used class action procedures of Rule 23 . . . are not

23 applicable to class actions . . . under the ADEA.” The Illinois District Court continued, “The plain-

24 tiffs in a § 216(b) class action, however, need not show that their positions are identical, but only

25 that they are similar.” Id. at 443. Accord: Schwed, 159 F.R.D. at 375, stating that putative class

26 ERISA, that claim, unlike the other claims, will be governed by Rule 23. See Vaszlavik, 175 F.R.D. at 672, discussing
27 separate requirements for certifying ERISA and ADEA classes. 11 The OWBPA “imposes specific requirements for releases covering ADEA claims,” and is part of the ADEA. 29
28 U.S.C. § 626(f). Oubre v. Entergy Operations, Inc. 522 U.S. 422, 424 (1998).
16.
Ps&As In Support Of Motion To Approve Notice Of Action, To Certify Class For Purposes Of Count I Of The Amended Complaint, And To Compel
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Case No. C 03 04529 RMW

1 members need not share identical positions.

2

This Court’s determination in Church does not appear to address the precise showing that

3 plaintiffs must make to demonstrate for purposes of notice that they are similarly situated to other

4 potential class members. Elsewhere, the courts are divided as to what showing is necessary. The

5 debate was summarized by the Southern District of Ohio in its decision in Pritchard v. Dent Wizard

6 International Corp., 210 F.R.D. 591 (S.D. Ohio 2002). Quoting its prior decision in Viciedo v. New

7 Horizons Computer, Learning Center of Columbus, Ltd., No. 2:01-CV-250, slip op. (S.D. Ohio Dec.

8 4, 2001), the court there stated:

9

Some courts hold that a plaintiff can demonstrate that potential class

members are ‘similarly situated,’ for purposes of receiving notice,

10

based solely upon allegations in a complaint of class-wide illegal

practices. Belcher v. Shoney’s, Inc., 927 F.Supp. 249, at 251 [(M.D.

11

Tenn. 1996)]. See, e.g., Allen v. Marshall Field & Co., 93 F.R.D. at

438. “other [sic] courts hold that a plaintiff meets this burden by

12

demonstrating some factual support for the allegations before issuance

of notice. Belcher, 927 F.Supp. at 251. See, e.g., Jackson v. New York

13

Telephone Co., 163 F.R.D. 429, 431 (S.D.N.Y. 1995). However,

authorized notice [need only be] based on a modest factual showing.

14

Severtson v. Phillips Beverage Co.], 137 F.R.D. 264, at 266 [(D.

Minn. 1991)]. Courts requiring a factual showing ‘have considered

15

factors such as whether potential plaintiffs were identified; whether

affidavits of potential plaintiffs were submitted; and whether evidence

16

of a widespread discriminatory plan was submitted.’ H&R Block, Ltd.

v. Housden, 186 F.R.D. 399, 400 (E.D. Tex. 1999) (citations omitted).

17

The Severtson court reasoned that [r]equiring a showing that there is

some factual basis for the class allegations, however, hardly places an

18

unreasonable burden on the plaintiffs. To obtain court authorization to

send the proposed notice, plaintiffs must submit evidence establishing

19

at least a colorable basis for their claim and a class of ‘similarly

situated’ exists. 137 F.R.D. at 267.

20

21

Pritchard, 210 F.R.D. at 595-96. See also Vaszlavik, 175 F.R.D. at 678-79, where the Colo-

22 rado District Court declared, “at the notice stage, courts following the ad hoc method ‘require

23 nothing more than substantial allegations that the putative class members were together the victims

24 of a single decision, policy or plan . . .’” As shown below, regardless of whether this Court applies

25 the test employed in Belcher, Allen, Vaszlavik, and Sperling v. Hoffman-La Roche, Inc., 118 F.R.D.

26 392, 406 (D.N.J. 1988) and looks only to the face of the complaint, or the more stringent test advo-

27 cated by the Jackson and Severtson courts requiring a modest factual showing, Plaintiffs can readily

28
17.
Ps&As In Support Of Motion To Approve Notice Of Action, To Certify Class For Purposes Of Count I Of The Amended Complaint, And To Compel IBM To Provide Names, Addresses, And Dates Of Birth Of Similarly Situated Employees Case No. C 03 04529 RMW

1 demonstrate that they are similarly situated to other protected class members for purposes of notice.

2

Here, from the face of the Amended Complaint, the named plaintiffs easily can show that

3 they are similarly situated to other potential class members for purposes of the alleged violation of

4 the OWBPA. Paragraphs 15-17 of the Amended Complaint allege that in order to obtain severance

5 pay, contrary to the regulations governing the OWBPA, Plaintiffs and similarly situated employees

6 terminated by IBM were required to sign a confusing Release which was not drafted in plain

7 language calculated to be understood by the average individual. At this stage of the proceedings, that

8 allegation is arguably all that Plaintiffs need show in order to obtain court authorization to provide

9 notice of this action for violation of the OWBPA to potential class members. See Belcher v.

10 Shoney’s, Inc., 927 F. Supp. 249, 251 (M.D. Tenn. 1996); Allen, 93 F.R.D. at 438.

11

Even if a greater showing is needed to support the issuance of notice, Plaintiffs exceed that

12 requirement here. In Schwed, the district court for the Northern District of New York declared that

13 all that is required at the preliminary stage is for plaintiffs to “describe the potential class within

14 reasonable limits and provide some factual basis from which the court can determine if similarly

15 situated potential plaintiffs exists.” Id. at 375-76. A “modest factual showing is sufficient to

16 demonstrate that they [named plaintiffs] and potential plaintiffs were victims of a common policy or

17 plan that violated the law.” Realite v. Ark Restaurants Corp., 7 F. Supp.2d 303, 306 (S.D.N.Y.

18 1998), quoted with approval in Ballaris v. Wacker Silttronic Corp., 2001 W.L. 1335809, at *2

19 (D.Ore. 2001). Plaintiffs here have identified other potential plaintiffs (employees who have been

20 terminated as part of the various resource actions and smaller reductions in force that have occurred

21 throughout the United States since July 7, 2001); have submitted declarations showing that others

22 were terminated and signed the Release; and can submit evidence of a widespread discriminatory

23 plan. Here, IBM has eliminated over 10,000, perhaps as many as 20,000, American jobs since May

24 2000. Leas Decl., ¶ 3. As other courts have noted, the determination to engage in such a large

25 reduction in force by necessity is made at a high echelon of the corporate structure. In Hyman v.

26 First Union Corp., 982 F.2d 1, 3 (D.D.C. 1997), the District Court stated, “A systematic reduction of

27 the work force is a decision that is obviously made at a high level of the organization,” citing Owens

28
18.
Ps&As In Support Of Motion To Approve Notice Of Action, To Certify Class For Purposes Of Count I Of The Amended Complaint, And To Compel IBM To Provide Names, Addresses, And Dates Of Birth Of Similarly Situated Employees Case No. C 03 04529 RMW

1 v. Bethlehem Mines Corp., 108 F.R.D. 207, 212 (S.D.W. Va. 1985). Here, the Release utilized by

2 IBM has not differed substantively from one resource action or separation to the other. Compare

3 Exhibits L and M to the Amended Complaint with one another and with Exhibits 1-15 of Young

4 Decl.; compare also Exhibit 2 to Leas Declaration with Exhibit 1 to Declaration of David Mazgaj.

5

In view of the fact that the various Releases executed by IBM employees since 2001 are

6 substantially uniform, and in view of the obvious significance of the Release to IBM, there is more

7 than sufficient evidence at this stage from which to conclude that the language of the Release is part

8 of a corporate plan to provide severance in exchange for a purported waiver of employees’ claims

9 against IBM arising out of their terminations. Thus, even without the benefit of discovery, plaintiffs

10 easily satisfy the requirement in Church that they make a preliminary showing that the proposed opt-

11 in plaintiffs are similarly situated to the proposed class with respect to Count I of the Amended 12 Complaint for purposes of notice.12

13

C. The Scope Of The Class For Purposes Of The Alleged Violation Of The

OWBPAContained In Count I Of The Amended Complaint Should Be All

14

Individuals Age 40 And Over Terminated By IBM On Or After July 7, 2001 or

November 3, 2001, Depending On Whether The Individual Resided In A

15

Deferral Or Non-Deferral State.

16

Based upon the timing of the named plaintiffs’ EEOC charges, for purposes of notice of the

17 alleged violation of the OWBPA contained in Count I of the Complaint the Court should sanction

18 notice to all individuals who signed the Release age 40 and over who have been terminated by IBM

19 on or after July 7, 2001 who reside in a deferral state, or on or after November 3, 2001 who reside in

20 a non-deferred state. The Church Court defined the scope of the class based upon the named plain-

21 tiffs’ charges there. Noting that an EEOC charge must be filed within 300 days or 180 days in non-

22 deferral states, based upon the timing of the named plaintiffs’ charges, the Church court counted

23 back 180 days and 300 days from the earliest-filed EEOC charge. Church, 137 F.R.D. at 309-10.

24

25 12 Concerns that the Plaintiffs might later be determined not to be similarly situated to the class do not preclude notice at this time. In Schwed, 159 F.R.D. at 375, the district court considered the ramifications of such a circumstance and

26

declared “even where later discovery proves the putative class members to be dissimilarly situated, notice to those preliminarily identified as potential plaintiffs prior to full discovery is appropriate as it may further the remedial purpose

of the ADEA.” Accord: Frank v. Capital Cities Communications, Inc., 88 F.R.D. 674, 676 (S.D.N.Y. 1981), declaring,

27 “[T]he experiences of other employees may well be probative of the existence vel non of a discriminatory policy, thereby affecting the merits of the plaintiffs’ own claims; and the notice machinery contemplated by the ADEA, by reaching out

28 to potential plaintiffs, may further the statute’s remedial purpose.”

19.

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Case No. C 03 04529 RMW

1 The Court further determined that because the alleged discrimination was ongoing, plaintiffs in

2 Church could seek notification up to the date of the court’s order. Id. at 310.

3

Here, the earliest class-based charge filed by any named plaintiff is that of Daniel Moczan.13

4 Moczan’s charge was filed on May 2, 2002. Counting back 180 days from May 2, 2002 for those in

5 non-deferral states would extend the scope of the class to those terminated on or after November 3,

6 2001; counting back 300 days would extend the scope of the class to July 7, 2001.

7

Because of the breadth of the class which plaintiffs seek to represent for purposes of the

8 violation of the OWBPA alleged in Count I of the Amended Complaint, IBM may argue that the

9 class is unmanageable and dissimilar. This Court considered and rejected similar arguments raised in

10 Church, and it should do so here. The Church court expressly rejected arguments that because

11 plaintiffs there were employed in 112 different locations in 74 various job titles, the class therefore

12 was unmanageable and dissimilar. This Court stated, 137 F.R.D. at 307-308:

13

[H]ere plaintiffs have made allegations supported by declarations that

the decision making process was highly centralized, unlike that in

14

Lusardi [v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987), vacated in

part and modified in part on other grounds, 122 F.R.D. 463 (D.N.J.

15

1988)]. Also, plaintiffs persuasively argue that the broad and uniform

impact of the defendants [sic] actions should not mitigate against a

16

courts [sic] decision to facilitate notice. In Heagney v. European

American Bank, 122 F.R.D. 125 (E.D.N.Y. 1988)], the court explained

17

that ‘class treatment under the ADEA is not defeated simply because

… the plaintiffs performed a variety of jobs in a number of

18

departments and different locations.’ Similarly, Subclass C should not

be deprived of their right to opt-in to the action simply because they

19

held a variety of different jobs at different locations. The procedural

mechanisms by which proposed opt-in plaintiffs left employment, i.e.

20

job elimination, demotion, lay off, discharge, etc. should also not

defeat their claim.

21

22 This Court added, Church, 137 F.R.D. at 308:

23

[T]he Court believes the better view is that a class claim is not

defeated simply because the proposed class performed a variety of

24

different jobs at different locations, reported to different supervisors,

or left employment for different reasons than the named plaintiffs.

25

What governs the scope of the class is whether the named plaintiffs

and the class members were all affected by a similar plan infected by

26

27 13 If the Motion for Leave to file Second Amended Complaint is not permitted, then the earliest class-based charge filed by a named plaintiff would be the charge filed on August 23, 2002 by Ruth Alice Boyd. 300 days before the Boyd charge
28 is October 27, 2001; 180 days is February 24, 2002.
20.
Ps&As In Support Of Motion To Approve Notice Of Action, To Certify Class For Purposes Of Count I Of The Amended Complaint, And To Compel
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Case No. C 03 04529 RMW

discrimination.
1
Indeed, the Court quoted with approval the district court’s opinion in Heagney, 122 F.R.D. at

2
127, quoting Allen, 93 F.R.D. 438 at 443, that, “’To deny class treatment would be tantamount to

3
declaring that any employer can escape ADEA class liability so long as it discriminates against a

4
diverse group of people over a wide geographic range in a number of ways, such as termination,

5
salary, promotions and working conditions.’” Church, 137 F.R.D. at 308.

6
The same rationale applies with equal force here. The declarations supplied by plaintiffs

7
suggest a centralized decision making process, at least with regard to the language of the Release

8
which IBM required individuals to execute in return for severance pay. The Release has a broad (and

9
Plaintiffs’ contend, unlawful) impact—the apparent waiver of all claims against IBM. Under these

10
circumstances, applying this Court’s decision in Church, any argument by IBM that the class is

11
unmanageable or dissimilarly situated should be rejected. The broad scope of the class whom named

12
Plaintiffs seek to represent here is no barrier to notice.14 Because Plaintiffs have met all of the

13
prerequisites for notice, and because of the significance of this Court’s determination with respect to

14
IBM’s dispositive motion on both counts and prospective class numbers, this Court should sanction

15
notice now.

16

3.
17 18

THE COURT SHOULD CONDITIONALLY CERTIFY A CLASS OF ALL IBM EMPLOYEES AGE 40 AND OVER TERMINATED BY IBM SINCE JULY 7, 2001 (OR NOVEMBER 3, 2001 IN NON-DEFERRAL STATES) WHO SIGNED A RELEASE AND COVENANT NOT TO SUE

19

Following this Court’s teaching in Church, since plaintiffs successfully have demonstrated

20 that they are entitled to court-authorized notice, this Court should give conditional approval of the

21 class. In Church, 137 F.R.D. at 308, after first concluding that “At this stage, plaintiffs have made a

22 sufficient showing that the proposed class is similarly situated,” the Court concluded, “At this stage,

23 conditional approval of the class and court facilitated notice is appropriate.” Id. The Church court’s

24 determination to provide conditional certification at the notice stage is consistent with the procedure

25 followed by most other courts. See, e.g., Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987),

26
27 14 The Church Court noted that court-sanctioned notice should not be confused with approval of the class. In Church, 137 F.R.D. at 307, this Court concluded that in the preliminary stages of litigation, “court facilitation of notice is proper
28 but does not preclude a later determination that the class is not similarly situated.”
21.
Ps&As In Support Of Motion To Approve Notice Of Action, To Certify Class For Purposes Of Count I Of The Amended Complaint, And To Compel IBM To Provide Names, Addresses, And Dates Of Birth Of Similarly Situated Employees Case No. C 03 04529 RMW

1 vacated in part, modified in part on other grounds, 122 F.R.D 463 (D.N.J. 1988); Sperling v.

2 Hoffman-LaRoche, Inc., 118 F.R.D. 392, 401 (D.N.J. 1988). Vaszlavik, 175 F.R.D. at 679 (“Because

3 the court has minimal evidence [at this time] this determination is made using a fairly lenient

4 standard and typically results in ‘conditional certification’ of a representative class.”). Accordingly,

5 since Plaintiffs have met the three-part test established in Church for court-facilitated notice, for

6 purposes of Count I of the Amended Complaint this Court should conditionally certify a class of all

7 individuals age 40 and over terminated by IBM since July 7, 2001 in deferral states, and since

8 November 3, 2001 in non-deferral states, who signed the Release.

9

If necessary, the Court can always adjust the class later or even determine that the class is not

10 similarly situated. In Ballaris, 2001 W.L. 1335809, at *3, the Oregon district court noted that “a

11 class can always be adjusted after discovery if necessary.” Similarly, this Court in Church,

12 referencing Lusardi and Sperling, declared, “[T]he holding in Lusardi is in accord with the district

13 court in Sperling which explained that preliminary certification through court approval of notice and

14 facilitation of notice does not preclude a later determination that the class is not similarly situated.”

15 Accordingly, conditional class certification is appropriate here.

16 4.
17 18 19

THIS COURT SHOULD ORDER IBM TO PROVIDE PLAINTIFFS IN AN ELECTRONICALLY SUITABLE FORMAT WITH THE NAMES, ADDRESSES, AND DATES OF BIRTH OF SIMILARLY SITUATED EMPLOYEES.
A. The Courts Uniformly Compel Provision Of Names And Addresses
Applying the Supreme Court’s decision in Sperling and this Court’s decision in Church, the

20 Court here should compel IBM to provide Plaintiffs with the names, last-known addresses, and dates

21 of birth of employees who are similarly situated to the named plaintiffs. In Sperling, 493 U.S. at 170,

22 the Supreme Court sustained the determination of the New Jersey District Court, stating, “The

23 District Court was correct to permit discovery of the names and addresses of the disadvantaged

24 employees.” After concluding that notice was warranted, this Court without discussion in Church,

25 137 F.R.D. at 310, ordered defendant there to provide the plaintiffs with the names and current

26 addresses of employees.

27

The determination to compel discovery of the names and addresses of similarly situated

28
22.
Ps&As In Support Of Motion To Approve Notice Of Action, To Certify Class For Purposes Of Count I Of The Amended Complaint, And To Compel IBM To Provide Names, Addresses, And Dates Of Birth Of Similarly Situated Employees Case No. C 03 04529 RMW

1 employees necessarily follows from the Supreme Court’s decision in Sperling. In Sperling, 439 U.S.

2 at 170, the Supreme Court stated, “A collective action allows age discrimination plaintiffs the

3 advantage of lower individual costs to vindicate rights by the pooling of resources. The judicial

4 system benefits by efficient resolution in one proceeding of common issues of law and fact arising

5 from the same alleged discriminatory activity.” Accordingly, the Court sustained the Third Circuit’s

6 decision which compelled defendant there to provide plaintiffs with the names and address of

7 employees. In Krueger, 1993 WL 276058, at *1 (S.D.N.Y. 7/21/93), the Southern District Court for

8 New York stated that Sperling not only authorizes but “advocates that the district court exercise its

9 discretion early in the litigation to permit discovery of the names and addresses of discharged

10 employees to ensure that such potential plaintiffs are promptly and accurately notified” about the

11 suit. Accord: Vaszlavik, 175 F.R.D. at 682 (ordering notice of names and addresses of putative class

12 members if possible in electronically usable form); Monroe v. United Airlines, Inc., 90 F.R.D. 638,

13 640 (N.D. Ill. 1981) (ordering disclosure of names, addresses, and dates of birth in ADEA

14 representative action). See also United States v. Cook, 795 F.2d 987, 993 (1st Cir. 1986) (ordering

15 early disclosure of names and addresses in FLSA representative action as discovery order).

16

Indeed, the virtually uniform practice of the courts has been to grant discovery of names and

17 addresses of similarly situated employees once the plaintiffs have demonstrated that they meet the

18 prerequisites to bring suit and that they are similarly situated to the class whom they wish to repre-

19 sent. Summarizing the response of the judiciary to requests by plaintiffs for discovery of names and

20 addresses of similarly situated employees, the District Court in Hammond v. Lowe’s Home Centers,

21 Inc., 216 F.R.D. 666, 673 (D. Kan. 2003), stated, “Other lower courts addressing whether to permit

22 discovery of the names and addresses of other similarly-situated employees in section 216(b) FLSA

23 actions have almost universally permitted discovery of this information.” Here, since plaintiffs

24 beyond peradventure are similarly situated to other employees who signed the Release in order to

25 obtain severance pay, this Court should compel Defendant to provide Plaintiffs within 15 days with

26 the names and last-known addresses of all similarly situated employees in an electronically suitable

27

28
23.
Ps&As In Support Of Motion To Approve Notice Of Action, To Certify Class For Purposes Of Count I Of The Amended Complaint, And To Compel IBM To Provide Names, Addresses, And Dates Of Birth Of Similarly Situated Employees Case No. C 03 04529 RMW

1 format.15

2

B. The Class Members Should Be Given 120 Days To Opt In With Respect To

Count I Of The Amended Complaint Alleging Violation Of The OWBPA.

3

4

Because of their diverse locations and the potential size of the class, Plaintiffs request that

5 this Court afford individuals 120 days to opt in to this action from the date IBM certifies to this

6 Court that it has furnished the undersigned counsel in an electronically usable format with the

7 names, addresses, and dates of birth of potential opt in plaintiffs. Analogizing to Rule 23(d), 8 Fed.R.Civ.P., the Third Circuit in Sperling, 24 F.3d 463, 471-72 (3rd Cir. 1994), set a cut-off date for

9 closing the opt in class so that the scope of the suit would be limited and made known to the

10 employer within a reasonable period of time. The Appeals Court stated, “If the District Court,

11 pursuant to its case management powers, promptly sets a reasonable cut-off date for closing the opt-

12 in class, the scope of this suit is limited and made known to the defendant employer within a reason-

13 able time after the claims seeking class relief is filed.” Id. In Rosen v. Reckitt & Colman, Inc., 77

14 FEP Cases [BNA] 370 (S.D.N.Y. 1994), finding that there was no apparent statute of limitations

15 with regard to the period to opt in, the court determined that it should impose a deadline “consistent 16 with fairness.” Id. at 372 n.3, citing Kelley v. Alamo, 964 F.2d 747, 750 (8th Cir. 1992) (FLSA case

17 stating the courts have authority to set, prospectively, reasonable cutoff date for filing consents). The

18 Rosen court permitted potential opt in plaintiffs to file consents within 90 days of notice.

19

Although this Court in Church granted plaintiffs’ request for discovery of the names and

20 addresses of individuals and granted plaintiffs’ request that the Court authorize notice, the opinion

21 does not recount how long potential plaintiffs were afforded to opt in to the case. Here, given the

22 broad scope of the class, the multiple locations, and the likelihood that numerous questions may be

23 raised, plaintiffs respectfully request that prospective plaintiffs be allowed 120 days to opt in after

24

25 15 Because of the nature of this case, Plaintiffs further request that IBM be required to provide them with the dates of birth of the similarly situated employees. While dates of birth are not critical at this stage, dates of birth will be important

26

to Plaintiffs’ claims under the remaining counts of the Amended Complaint. Plaintiffs will need this information for purposes of statistical analysis should the Court deny IBM’s dispositive motion. Provision of such information at this

stage would not appear to be onerous and may indeed be more efficient than requiring IBM to gather such information at

27 a later date. Plaintiffs request that IBM provide such information in an electronically usable format to help facilitate notice. Information provided electronically can be manipulated for purposes of data organization and, given the nature of

28 IBM’s business, may in fact be simpler for IBM to produce than reducing the information to a hard copy.

24.

Ps&As In Support Of Motion To Approve Notice Of Action, To Certify Class For Purposes Of Count I Of The Amended Complaint, And To Compel

IBM To Provide Names, Addresses, And Dates Of Birth Of Similarly Situated Employees

Case No. C 03 04529 RMW

1 IBM certifies to this Court that it has provided plaintiffs with names, addresses, and dates of birth as

2 directed by the Court.

3

CONCLUSION

4

For all of the foregoing reasons, plaintiffs respectfully request that this Court: (1) authorize

5 Plaintiffs to send notice of this action to all employees age 40 and over terminated by IBM since July

6 7, 2001 in deferral states, and since November 3, 2001 in non-deferral states; (2) conditionally

7 authorize plaintiffs to proceed as representatives of a class of individuals age 40 and over terminated

8 by IBM since July 7, 2001 in deferral states and since November 3, 2001 in non-deferral states with

9 respect to the alleged violations of the OWBPA as asserted in Count I of the Amended Complaint;

10 (3) compel IBM to provide Plaintiffs in an electronically suitable format with the names, last-known

11 addresses, and dates of birth of all similarly situated employees; and (4) permit similarly situated

12 employees 120 days to notify the Court that they wish to opt-in to this action. Two versions of the

13 proposed notice, one for deferral states and one for non-deferral states, and consent form are

14 attached to the Young Declaration as Exhibits 22, 23, and 24.

15

16 Dated: February __, 2004
17

McTEAGUE, HIGBEE, CASE, COHEN WHITNEY & TOKER, PA

18

By __________________________________

19

JEFFREY NEIL YOUNG

Attorney for Plaintiffs

20

21

22

23

24

25

26

27

28
25.
Ps&As In Support Of Motion To Approve Notice Of Action, To Certify Class For Purposes Of Count I Of The Amended Complaint, And To Compel IBM To Provide Names, Addresses, And Dates Of Birth Of Similarly Situated Employees Case No. C 03 04529 RMW

 
 1 Jeffrey Neil Young (Maine SBN 3874)

Patrick McTeague (Maine SBN 621)

2 McTEAGUE, HIGBEE, CASE, COHEN

WHITNEY & TOKER, PA

3 PO Box 5000

Topsham, ME 04086

4 Telephone: 207.725.5581

Facsimile: 207.725.1090

5 e-mail:

jyoung@me-law.com

6 Robert E. Jesinger, SBN 59550

Wylie, McBride, Jesinger, Platten & Renner

7 2125 Canoas Garden Avenue Suite 120

San Jose, CA 95125

8 Telephone: 408.979.2920

Facsimile: 408.979.2934

9 e-mail:

rjesinger@wmjpr.com

10 Attorneys for Plaintiffs
11

12

UNITED STATES DISTRICT COURT

13

NORTHERN DISTRICT OF CALIFORNIA

14

15 WILLIAM SYVERSON, RUTH ALICE BOYD, Case No. C 03 04529 RMW

DALE CAHILL, JACK FRIEDMAN, PAUL

16 GROMKOWSKI, SYLVIA JONES, ROLF

PLAINTIFFS’ MEMORANDUM IN

MARSH, WALTER MASLAK, JAMES

OPPOSITION TO DEFENDANT’S

17 PAYNE, and ANTONIO RIVERA, individually MOTION TO DISMISS PLAINTIFFS’

and on behalf of others similarly situated,

FIRST AMENDED COMPLAINT

18

WITHOUT LEAVE TO AMEND

Plaintiffs,

19
v.

Date and Time: 04/30/2004 – 9:00 a.m.

Courtroom:

6, 4th Floor

20

Judge:

Hon. Ronald M. Whyte

INTERNATIONAL BUSINESS MACHINES

21 CORPORATION,

22

Defendant.

23
AND RELATED COUNTERCLAIM
24

25

26

27

28

i
PLTS’ MEMO. IN OPPOSITION TO DFT’S MOTION TO DISMISS PLTS’ FIRST AMENDED COMPLAINT WITHOUT LEAVE TO AMEND CASE NO. C 03 04529 RMW

1

TABLE OF CONTENTS

2

Page

3 TABLE OF AUTHORITIES ............................................................................................................ iii 4 I. INTRODUCTION................................................................................................................... 1 5 II. SUMMARY OF ARGUMENT .............................................................................................. 1

6 III. 7 IV.
8 9 10 11 12

STANDARD OF REVIEW .................................................................................................... 2
ARGUMENT .......................................................................................................................... 3
A. The Legislative History Of The Older Workers’ Benefit Protection Act And Oubre Require Stringent Compliance To Waive ADEA Claims ....................... 3
B. IBM Bears The Burden Of Proving That IBM’s Waiver Complies With The Requirements Of The OWBPA ........................................................................... 5
C. Because IBM’s Waiver Does Not Comply With The Minimum Requirements Of The OWBPA, It Does Not Bar Plaintiffs’ Rights To Pursue Their ADEA Claims ....................................................................................... 6

13 14 15 16 17 18 19 20
V.
21

1. IBM’s Waiver is not Written in Language Calculated to be Understood by the Average Individual .......................................................... 7
2. IBM’s Waiver Makes a Material Omission of Fact Because it Fails to Inform Employees of Their Right to Test the Knowing and Voluntary Nature of the Waiver in Court Under the OWBPA .................... 10
D. IBM’s Waiver Constitutes A Contract Of Adhesion ............................................... 11
E. Plaintiffs Did Not Waive Their ERISA Claims By Signing IBM’s Waiver ............ 12
F. The First Amended Complaint Contains A “Short And Plain Statement Of The Claim” That IBM’s Waiver Is Invalid, And That Is All That Is Required ................................................................................................................... 12
CONCLUSION .................................................................................................................... 13

22

23

24

25

26

27

28

ii
PLTS’ MEMO. IN OPPOSITION TO DFT’S MOTION TO DISMISS PLTS’ FIRST AMENDED COMPLAINT WITHOUT LEAVE TO AMEND CASE NO. C 03 04529 RMW

1

TABLE OF AUTHORITIES

2 Cases

3 Butcher v. Gerber Products, 8 F. Supp.2d 307, 3144_____________________________________ 5

4 Butler v. Sears Roebuck & Company, 1992 WL 364779, at *2 (N.D.Cal.) ____________________ 3 5 Circuit City Stores v. Mantor, 335 F.3d 1101 (9th Cir. 2003) ______________________________ 11

6 Conley v. Gibson, 355 U.S. 41 (1957) ________________________________________________ 3 7 Gilligan v. Jamco Dev. Corp., 108 F.3d 246 (9th Cir. 1997)________________________________ 2

8 Graham v. Scissor-Tail Inc. (Cal. 1990) 623 P.2d 165, 28 Cal.3d 807 ______________________ 11 9 Griffin v. Kraft Gen. Foods, Inc., 62 F.3d 368 (11th Cir. 1995) _____________________________ 5 10 Ingle v. Circuit City Stores, Inc., 328 F.3d 1165 (9th Cir. 2003)____________________________ 11

11 Kinghorn v. Citibank, N.A., 1999 WL 30534, at *4 (N.D. Cal. 1/20/99) __________________ 2, 5, 6

12 Oubre v. Entergy Operations, Inc., 522 U.S. 422 (1998) _____________________________ passim 13 Parks Sch. Of Bus., Inc. v. Symington, 51 F.3d 1480 (9th Cir. 1995) _________________________ 2

14 Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) _____________________________________ 13

15 Thomforde v. IBM, Civ. No. 02-CV-4817 (JNE/JGL) (D. Minn. 1/27/04)____________________ 10

16 Torres v. AT&T Broadband, LLC, 158 F.Supp.2d 1035 (N.D.Cal. 2001) __________________ 2, 11 17 Western Mining Council v. Watt, 643 F.2d 618 (9th Cir. 1981) _____________________________ 2

18 Statutes

19 29 C.F.R. § 1625.22(b)(3&4) (1998) _________________________________________ 4, 7, 10, 13

20 29 C.F.R. Part 1625 (65 F.R. 77438, at * 77443, available at 2000 W.L. 180424 (F.R.)_______ 9, 10

21 29 U.S.C. § 626 _____________________________________________________________ passim

22 42 U.S.C. §2000e-5(f)(1) _________________________________________________________ 11

23 Other Authorities

24 S. Rep. No. 101-263, at 32 (1990), reprinted in 1990 U.S. C.C.A.N., 1509, 1527 ______________ 4

25 Rules

26 Fed. Rule Civ. Proc. 8(a)(2) _______________________________________________________ 13

27 Treatises

28 17A Am.Jur. 2d, Contracts § 348 (1991) _____________________________________________ 11

iii
PLTS’ MEMO. IN OPPOSITION TO DFT’S MOTION TO DISMISS PLTS’ FIRST AMENDED COMPLAINT WITHOUT LEAVE TO AMEND CASE NO. C 03 04529 RMW

Form F-1, Section 2(a), Barbara T. Lindemann & David D. Kadue, Age Discrimination in 1 Employment Law 1417 (2003) ___________________________________________________ 11
2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
iv
PLTS’ MEMO. IN OPPOSITION TO DFT’S MOTION TO DISMISS PLTS’ FIRST AMENDED COMPLAINT WITHOUT LEAVE TO AMEND CASE NO. C 03 04529 RMW

1 I. INTRODUCTION

2

On or about October 7, 2003, ten fo rmer employees filed a representative class action on

3 behalf of themselves and other similarl y situated emplo yees, including 126 referenced by name in

4 Exhibit A to the Complaint , against Defendant International Business Machines Corporation

5 (“IBM”). The Complaint alleged violations of the Older Workers’ Benefit Protection Act, 29 U.S.C.

6 § 626(f)(1) (“the OWBPA”), the Age Discrimination in Em ployment Act, 29 U.S .C. § 621 et seq.

7 (“the ADEA”), and the Emplo yee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 et

8 seq. arising out of an ongoin g reduction in force by IBM since January 2001. Plaintiffs

9 subsequently filed a First Amended Complaint on or about December 19, 2003.

10

On February 12, 2004 IBM filed a Moti on to Dismiss Plaintiffs’ First Amended Com plaint

11 Without Leave to Amend (“Motion to Dismiss”) premised upon the fact that Plaintiffs had executed

12 IBM’s waiver (Ex hibit 1 hereto and Exh ibit L to the Fi rst Amended Comp laint) entitled “General

13 Release and Covenant Not to Sue” (“IBM’s Waiver”) at the time of their separation from IBM. It is

14 undisputed that the language of IBM’s Waiver has n ot varied materially throughout IBM’s ongoing

15 reductions in force. In all inst ances, IBM’s Waiver states that the empl oyee agrees “that this

16 Release covers, but is not limited to, claims arising from the Age Discrimination in Employment Act

17 of 1967, as amended … and an y other federal, state or loc al law dealing with discrimi nation in

18 employment including, but not lim ited to, discrimination based on … age … .” Elsewhere,

19 however, IBM’s Waiver states, “This covenant not to sue does not appl y to a ctions based sol ely

20 under the Age Discrimination in Employment Act of 1967 as amended. That means that if you were

21 to sue IBM or those associated with IBM only under the Age Discrimin ation in Employment Act of

22 1967, as amended, you would not be liable under the terms of this Releas e for their attorneys’ fees

23 and other costs and ex penses of defendin g against a suit. This R elease does not preclude filing a

24 charge with the U.S. Equal Emplo yment Opportunity Commission.” I n addition, altho ugh IBM’s

25 Waiver contains both a release and covenant no t to sue, IBM’s Waiver merges both i nto one term,

26 labeling the release and covenant not to sue as “Release.”

27 II. SUMMARY OF ARGUMENT

28

IBM baldly and without analysis asserts that IBM’s Waiver signed by Plaintiffs “fully

1
PLTS’ MEMO. IN OPPOSITION TO DFT’S MOTION TO DISMISS PLTS’ FIRST AMENDED COMPLAINT WITHOUT LEAVE TO AMEND CASE NO. C 03 04529 RMW

1 complies” with the OWBPA’s strict re quirements governing waiver of ADEA claims. IBM’s

2 Memorandum in Support of Motion (“Memora ndum”), p. 1. Among other infirmities, IBM’s

3 Waiver includes and commingles in the same document the two separate waivers quoted above, one

4 denominated a “release” and the other termed a “covenant not to sue,” which directly contradict one

5 another with respect to the ke y issue of waive r of ADEA rights. The confusing, misleading, and

6 contradictory language contained in IBM’s Waiver on its face violates the p rime requirement of the

7 OWBPA that ADEA waiver language must be “written in a manner calculated to be understood by

8 such individual, or by the average individual entitled to participate.” 29 U.S.C. § 626(f)(1)(A).

9

As “the party asserting the validity of a waiver, ” IBM has “the burden of proving in a court

10 of competent jurisdiction that a waiver was knowing and voluntary pursuant to paragraph (1) or (2).”

11 29 U.S.C. § 626 (f)(3). Just as IBM’s Memorandum fails to mention, let alone di scuss, the

12 contradictory language quoted above, the Memorandum also omits mention that IBM has the burden

13 of proof to show complianc e with each and ever y requirement under the OW BPA. Kinghorn v.

14 Citibank, N.A., 1999 WL 30534, at *4 ( N.D. Cal. 1/20/99). The ver y language of IBM’s Waiver

15 defeats Defendant's attempt to carr y its b urden. Because the waiver does “not com ply with

16 OWBPA's stringent safeguards, it is unenforceable against [Plaintiffs] insofar as it purports to waive

17 or release [their] ADEA claim.” Oubre v. Entergy Operations, Inc., 522 U.S. 422, 427-28 (1998) .

18 The Court should deny IBM’s Motion to Dismiss and allow Plaintiffs to proceed with their claims.

19 III. STANDARD OF REVIEW

20

This Court has stated that Rule 12(b)(6) motions to dismiss are disfavored and rarely to be

21 granted. In Torres v. AT&T Broadband, LLC, 158 F.Supp.2d 1035, 1037 (N.D.Cal. 2001), the Court

22 declared:

23

A motion to di smiss for failure to state a claim is v iewed with disfavor and is

rarely granted. See Gilligan v. J amco Dev. Corp., 108 F.3d 246, 249 (9th Cir.

24

1997). The complaint must be construed in the li ght most favorable to the

plaintiff. See Parks Sch. Of Bus. , Inc. v. Symingto n, 51 F.3d 1480, 1484 (9th Cir.

25

1995). A complaint should not be dismissed for failure to st ate a claim unl ess it

appears beyond a doubt that the plaintiff can prove no set of facts in support of his

26

claim which would entitle him to reli ef. See id. However, althou gh courts

generally assume the facts alleged are true, courts d o not “assume the truth of

27

legal conclusions merely because they are cast in the form of factual allegations.”

28

Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

2
PLTS’ MEMO. IN OPPOSITION TO DFT’S MOTION TO DISMISS PLTS’ FIRST AMENDED COMPLAINT WITHOUT LEAVE TO AMEND CASE NO. C 03 04529 RMW

1 Accord: Butler v. Sears Roebu ck & Company, 1992 WL 364779, at *2 (N.D.Cal.) , citing Conley v.

2 Gibson, 355 U.S. 41, 45-46 (1957).

3 IV. ARGUMENT

4

A. The Legislative History Of The Old er Workers' Benefit Protection Act And

Oubre Require Stringent Compliance To Waive ADEA Claims.

5

6

Responding to evidence of abuse in the procurement of waivers of ADEA claims, Congress

7 in 1990 amended the ADEA by enacting the OWBPA. The OWBPA sets out with considerable

8 specificity the minimum requirements which m ust be satisfied b efore an empl oyee can be held t o

9 have waived an ADEA claim, providi ng in pertinent part, 29 U.S.C. § 626(f)(1)(A) (emphasis

10 added):

11

(f)(1) An individu al may not waive any right or claim unde r this chapter unl ess the waiver is knowing and volunt ary. Ex cept as provided in pa ragraph (2), a

12

waiver may not be considered knowing and voluntary unless at a minimum:

(A) the waiver is part of an agreement between the i ndividual and the

13

employer that is written in a manner calculated to b e understood by

such individual, or by the average individual eligible to participate;
14

15

In addition, the OWBPA provides in 29 U.S .C. §§ 626(f)(3) and (4) that t he burden of proof

16 rests with the part y asserting validity of the waiver, and th at no waiv er can affect the Equ al

17 Employment Opportunity Commission's (“EEOC”) rights to enforce the ADEA (emphasis added):

18

(3) In any dispute that ma y arise ov er whether any of the r equirements,

conditions, and circumstances set forth in subpar agraphs (A), (B), (C), (D), (E),

19

(F), (G), or (H) of paragraph (1), or subparagraph (A) or (B) of paragraph (2) have

been met, the party asserting the validity of a waiver shall have the burden of

20

proving in a court of com petent jurisdiction that a waiver was knowing and

voluntary pursuant to paragraph (1) or (2).

21

(4) No waiver agreement may affect the Commission's rights and responsibilities

22

to enforce thi s chapter. No waive r may be us ed to just ify interfering with the

protected right of an employee to file a charge or participate in an investigation or

23

proceeding conducted by the Commission.

24

The legislative histor y underlying the OWBPA establi shes that Congress intended the

25 judiciary to scrutinize ADEA waiver agreements carefully to ensure that the specific requirements of

26 OWBPA are satisfied:

27

The Committee expects that courts reviewing the “knowing and voluntary” issue

will scrutinize carefully the complete circumstances in whi ch the w aiver was

28

executed . . . The bill establishes specified minimum requirements that must be

3
PLTS’ MEMO. IN OPPOSITION TO DFT’S MOTION TO DISMISS PLTS’ FIRST AMENDED COMPLAINT WITHOUT LEAVE TO AMEND CASE NO. C 03 04529 RMW

1

satisfied before a court may proceed to determine factually whether the execution

of a waiver was 'knowing and voluntary.'“

2

3 See S. Rep. No. 101-263, at 32 (1990), reprinted in 1990 U.S. C.C.A.N., 1509, 1527.

4

EEOC regulations implementing the OWBPA p rovide how w aiver agreements should be

5 worded (emphasis added):

6

(b) Wording of waiver agreement.

7

(3) Waiver agreements must be drafted in plain language geared to the l evel of

understanding of the indiv idual party to the a greement or i ndividuals eligible to

8

participate. Employers should take into ac count such factors as the level of

comprehension and education of t ypical participants. Consideration of these

9

factors usually will require the limitation or eli mination of technical jargon

and of long, complex sentences.

10

(4) The waiver agreement must not have t

he effect of misleading,

11

misinforming, or failing to inform participants and affected individuals. Any

advantages or disadvantages described shall be presented without either

12

exaggerating the benefits or minimizing the limitations.”

13

14 29 C.F.R. § 1625.22(b)(3&4) (1998). The OWBPA and the implementing regulations thus establish

15 that no waiver of an ADE A claim is knowi ng and volunt ary, and thus v alid, unless: 1) the waiver

16 agreement is written in a manner calculated to be unde rstood by the average individual; 2) t he

17 document is drafted in plain lan guage and avoids technical jargon; and 3) the agreement does not

18 have the effect of misleading, misinforming, or failing to inform affected individuals.

19

The Supreme Court i nterpreted the ADEA waiver requirements imposed by the OWBPA in

20 Oubre v. Entergy Operations, Inc., 522 U.S. 422 (1998 ), a case involvin g, as does the inst ant case,

21 waiver language that was invalid on its face because it did not comply with the OWBPA safeguards.

22 Ruling that “[t]he OWBPA governs the effect unde r federal la w of w aivers or releases on ADEA

23 claims and incorporates no exceptions or qualifications,” Justice Kennedy, writing for th e Court,

24 held that the OWBPA requirements are to be applied strictly:

25

The statutory command is clear: An emplo yee 'may not waive' an ADE A claim

unless the waiver or release satis fies the OWBPA's requirements. The pol icy of

26

OWBPA is likewise c lear from its title: It is designed to protect the ri ghts and

benefits of older workers. The OWBPA implements Congress' policy via a strict,

27

unqualified statutory stricture on waivers, and we are bound to tak e Congress at

its word. Cong ress imposed specific duties on employers who seek releases of

28

certain claims created by statute. Congress delineated these duties with precision

4
PLTS’ MEMO. IN OPPOSITION TO DFT’S MOTION TO DISMISS PLTS’ FIRST AMENDED COMPLAINT WITHOUT LEAVE TO AMEND CASE NO. C 03 04529 RMW

1

and without qualificatio n: An emplo yee 'may not waive ' an ADEA claim unless

the employer complies with the statute. Id. at 426-27.

2

3 Because the waiver si gned by Oubre on its face “did not comply with the OWBPA's stringent

4 safeguards,” the Court ruled, “it is unenf orceable against her insofar as it purports to waive or

5 release her ADEA cl aim.” Id. at 427-28. B ecause the non-complying release “cannot bar he r

6 ADEA suit,” the Supreme Court remanded the case so that t he plaintiff could pursue her ADEA

7 claim. Id. at 428.

8

Oubre thus establishes that the “stringent safeguards” of the OWBPA are to be taken

9 seriously and must be f ully complied with bef ore waivers of ADEA claims can be deemed valid.

10 The Supreme Court’s command that the OWBPA be applied rigorously was followed by this Court

11 in its decision in Kinghorn, 1999 WL 30534. In Kinghorn, plaintiff challenged the validity of an

12 ADEA waiver on several grounds. Al though this Court rejected man y of plaintiff’s arguments, it

13 found the ADEA waiver invalid because it did not comply with one of the s even OWBPA factors

14 regarding waivers of future rights. Th e Court declared, “Because satisfaction of all seven OWBPA

15 factors is the minimum required showin g for a valid ADEA waiver, plaintiff’s ADEA w aiver is

16 unenforceable.” Id. at *4 . Accord: Butcher v. Gerb er Products, 8 F. Supp.2d 30 7, 3144 (the

17 OWBPA requires “absolute technical compliance” and “the absenc e of even one of the OW BPA’s 18 requirements invalidates a waive r”), citing Griffin v. Kraft Gen. Foods, Inc., 62 F.3d 368, 373 (11th

19 Cir. 1995). As shown below, because IBM’s Waiver does not comply with the express requirements

20 of the OWBPA, it is unenforceable against Plaintiffs and cannot bar their ADEA claims.

21

B. IBM Bears The Burden Of Proving That IBM’s Waiver Com plies With The

Requirements Of The OWBPA.

22

23

Under the OWBPA, IBM, not the Plain tiffs, has the bu rden of provin g that its W aiver

24 complies fully with the strin gent statutory safeguards: “A party asserting the validi ty of a waiver

25 shall have the burden of proving in a court of competent jurisdiction that a waiver was knowing and

26 voluntary pursuant to paragraph (1) or (2).” 29 U.S.C. § 626(f)(4). Other than the b ald assertion

27 that its waiver “fully complies” with st atutory requirements, and a cu rsory discussion of t he

28 requirements, IBM makes no attempt to carry its burden. Indeed, IBM’s Motion to Dismiss does not

5
PLTS’ MEMO. IN OPPOSITION TO DFT’S MOTION TO DISMISS PLTS’ FIRST AMENDED COMPLAINT WITHOUT LEAVE TO AMEND CASE NO. C 03 04529 RMW

1 even quote, let alone discuss, the confusing and contradictory language contained in its two waivers

2 in a single document. A s discussed below, because the l anguage of IBM’s Waiver on its face

3 violates the OWBPA’s requirement of clarity, accordingly, as was the case in Oubre and Kinghorn,

4 IBM cannot carry its burden of proof.

5

C. Because IBM’s Waiver Does Not Co mply With The Minimum Requirements Of

The OWBPA, It Does Not Bar Plaintiffs’ Rights To Pursue Their ADEA Claims.

6

7

IBM’s Waiver is a multi-page document captioned “General Release and Coven ant Not t o

8 Sue,” which, in i ts first sentence, defines both as a “Release,” st ating “If you feel you are b eing 9 coerced to sign this Gen eral Release and Covenant Not to S ue (hereinafter “Release” …).1 The

10 second paragraph on page 1 of the release contained in IBM’s Waiver states:

11

In exchange for th e sums and bene fits received pursuant to th e terms of the

________________ [Resource Action or Separation All owance Plan],

12

______________ [name of emplo yee] agrees to release and h ereby does r elease

International Business Machines Corporation, its subsidiaries and affiliates, and

13

its and their benefits plans ( collectively, hereinafter “IBM”), from all claims,

demands, actions or li abilities you may have against IBM of what ever kind

14

including, but not limited to, those that are related to your employment with IBM,

the termination of that employment, or ot her severance payments or your

15

eligibility for participation in a Reti rement Bridge, . . . or cl aims for attorne ys'

fees.

16

17 The fourth paragraph on page 1 states in pertinent part that the “release” “covers” the ADEA:

18

. . . You also a gree that this Release covers, but is no t limited to, claims arisi ng

from the Age Discrimination in Employment Act of 1967, as amended . . .

19

20 The second page of IBM’s Waiver contains the covenant not to sue and states:

21

You agree that you will never institute a claim of any kind against IBM, or those

associated with IBM including, but not limited to, claims

related to your

22

employment with IBM or the termination of that employment or othe r severance

payments or your eligibility for participation in the retirement bridge . . . If you

23

violate this covenant not to sue by suing IBM or those associated with IBM, you

agree that y ou will pay all cost s and ex penses of de fending against the suit

24

incurred by IBM or those associated with IB M, including reasonable attorneys'

fees, and all further costs and fees, including attorney's fees, incurred in

25

connection with collection. This covenant not to sue does not apply to a ctions

based solely under the Age Discrimination in Employment Act of 1967, as

26

27

1 To assist the Court, in this Memorandum Plaintiffs use lower case letters to differentiate the “release,” which apparently does not include the covenant not to sue, from the “Release,” which

28

does include the covenant not to sue. Where IBM has capitalized the word “Release” in the General Release and Covenant Not to Sue, Plaintiffs have left the capitalization unchanged.

6

PLTS’ MEMO. IN OPPOSITION TO DFT’S MOTION TO DISMISS PLTS’ FIRST AMENDED COMPLAINT WITHOUT LEAVE TO AMEND CASE NO. C 03 04529 RMW

1

amended. That means tha t if you were to sue IB M or those associat ed with IBM

only under the Age Discrimination in Employment Act of 1967, as amended, you

2

would not be liable under the terms of this Release for their attorneys' fees and

other costs and expenses of defendi ng against the suit. Th is Release does not

3

preclude filing a charge wi th the U.S. Equal Employment Opport unity

Commission. (Emphasis added).

4

5 IBM’s Waiver language is inherently contradictory, confusing, and misleading, and cannot pass

6 muster under the strict requirements of the OWPBA.

7

1. IBM’s Waiver Is Not Written in Language Calculated to be Understood

by the Average Individual.

8

9

The fundamental flaw in IBM’s language quoted above is that it includes and commingles in

10 the same document, without differentiation, two waivers, one a “release” and the other a “covenant

11 not to sue,” and then compounds th e confusion by defining “Release” to include both the “rel ease”

12 and the “covenant not to sue.” Thi s results in contradictory, confusing language which on its face

13 cannot be understood b y and confuses the average indi vidual entitled to participate in the r esource

14 action or separation allowance plan. Comparison of the language on page 1 of IBM’s Waiver with

15 the language on page 2 demonstrates the inherent confusion.

16

Page 1 of IBM’s Waiver states th at the employee agrees to release IBM from all claims, and

17 that this “Relea se” “covers” claims arising from the ADE A. Pa ge 2 of IBM’s Waiver, however,

18 states that the covenant no t to sue, which is also confusi ngly included in and called a “Release” on

19 page 1, “does not apply to actions based solely under the Age Discrimination in Employment Act of

20 1967, as a mended.” The “Release” thus states two compl etely contradictory things; on page 1 i t

21 states that it covers ADEA claims, and on page 2 it states that it “does not appl y” to actions based

22 under the ADEA. This confusin g, contradictory language on its face violates the prime “stringent

23 safeguard” of the OWBPA – that waiver language must be written in “plain l anguage” in a manner

24 “calculated to be understood” b y the average indivi dual. 29 U.S.C. § 626(f)(A) and 29 C.F.R. §

25 1625.22(b)(3).

26

The waiver language at issue thus tells employees who signed it two different, contradictory

27 things – both that it “c overs” ADEA claims, and th at it does not apply to ADEA claims. W hile

28 experienced ADEA attorne ys might, after due reflection and considered analysis, be able to

7
PLTS’ MEMO. IN OPPOSITION TO DFT’S MOTION TO DISMISS PLTS’ FIRST AMENDED COMPLAINT WITHOUT LEAVE TO AMEND CASE NO. C 03 04529 RMW

1 disentangle the “release” from the covenant not to sue (although both are termed “Release”) and

2 discern what this waiver lan guage might mean, IBM ca nnot carry its burden o f proving that the

3 average individual who si gned the a greement understood this confusi ng, contradictory language.

4 The IBM employees who signed IBM’s Waiver, however intelligent, are not law school graduates,

5 let alone experienced ADEA attorneys. IBM’s dual and conflicting waiver language is the opposite

6 of plain language.

7

Indeed, the “General Release and Covenant Not to Sue” states in its very first paragraph that

8 both are a “Release,” which would lead logical employees to believe th at the two concepts are

9 synonymous. Moreov er, IBM’s Waiver stat es that “this coven ant not to su e does not appl y to

10 actions based solely” under the ADEA, which logically would lead employees, who are not expert in

11 contract or ADEA/OW BPA law, to b elieve that IBM’s Waiver does not preclude them from

12 pursuing ADEA claims, despite the language on page 1 statin g the release “covers” ADEA claims.

13 In fact, IBM’s Waiver e xpressly states on page 2 that “that means that if you were to sue IBM or

14 those associated with IBM only under the Age Discrimination and Emplo yment Act of 1967, as

15 amended, you would not be liable under the terms of this Release for their attorney's fees and other

16 costs and expenses of defending against the suit.” This l anguage certainly suggests to the average

17 employee that s/he is permitted despit e IBM’s Waiver to file suit under t he ADEA. Rather, the

18 language on page 2 appears to r eserve the ri ght of empl oyees who signed the release to pursue

19 claims under the ADEA, stating:

20

That means if you were to sue IBM, or those associated with IBM only under the

Age Discrimination in Employment Act of 1967, as am ended, you would not be

21

liable under the terms of this Release for their attorney’s fees and other costs and

expenses of defending against this suit. This R elease does not preclude fili ng a

22

charge with the U.S. Equal Employment Opportunity Commission.

23

Obviously, the hundreds of former IBM emplo yees who filed ADEA claims a fter signing

24 IBM’s Waiver understood IBM’s Waiver to permit them to file suit . If the former employees

25 understood that IBM’s Waiver barred them from pursui ng such actions, it is di fficult to understand

26 why so many have expended the effort and funds necessary to file ADEA claims. The Court should

27 not decide whether IBM’s Waiver in the abstract preserves the right of employees to pursue ADEA

28 actions; similarly, whether IBM’s inherentl y confusing two waivers in one document approach was

8
PLTS’ MEMO. IN OPPOSITION TO DFT’S MOTION TO DISMISS PLTS’ FIRST AMENDED COMPLAINT WITHOUT LEAVE TO AMEND CASE NO. C 03 04529 RMW

1 a subtle attempt to subvert Co ngress’s protective goals under the OWBPA or instead was the result

2 of layer upon la yer of langua ge created b y different draftpersons at different times is likewise

3 irrelevant to the issue b efore the Court. Rather, the onl y issue raised here is whether IBM’s Waiver

4 fully complies wit h the OWBPA's strict requirements and the EE OC’s regulations. At the v ery

5 least, IBM’s Waiver is flagrantl y misleading, in violatio n of the OWBPA's stringent safeguards,

6 because it states that the covenant not to sue “does not appl y” to actions under the ADEA, thereby

7 leading employees to believe that their rights to pursue AD EA claims are preserved by the labored

8 language.

9

IBM’s Waiver fails to disti nguish between a release and a covena nt not to sue, and indeed

10 defines both concepts as “Rele ase.” Aver age employees do not appreciate the legal disti nction

11 between these two concepts, and nothing in the OWBPA requires that employees should be required

12 to hire experienced ADEA/OWBPA attorneys to explain these concepts. The inclusion of these two

13 concepts without explanation in one document and the r esulting conflicting provisions are obvious

14 sources of confusion which vi olate the OWBPA's requirement that waiver agreements be written in

15 plain language without technical jar gon. Indeed, the EEOC has cauti oned against the inclusion of

16 both a release and covenant not to sue in the same do cument. See 29 C.F.R. Part 1625 (65 F.R.

17 77438, at * 77443, available at 2000 W.L. 180424 (F.R.), declaring:

18

However, a point of cautio n is warranted with respect to such cov enants.

Although ADEA covenants not to sue (absent d amages) operate as the fun ctional

19

equivalent of waivers, they carry a higher risk of viol ating the OWBPA by virtue

of their wording. An emplo yee could read “covenant not to sue” or “promise not

20

to sue” as giving up not onl y the right to challenge a p ast employment

consequence as an ADEA violation, but also the ri ght to challenge in court the

21

knowing and voluntary nature of his or her waiver a greement. The chance of

misunderstanding is heighten ed if the covenant not to sue i s added to an

22

agreement that already includes an ADEA waiver clause. The covenant in such a

case would have no legal effect separate from the waiver clause. Nonetheless, its

23

language would appear to bar an individual’s access to court.

24

The confusing, contradictory, and misleading language in IBM’s Waiver on its face violates

25 the fundamental safeguard in the OWBPA that ADEA waivers be written in a manner “calculated to

26 be understood” by average employees. 29 U.S .C. § 626(f)(1)(A). The Co urt should rule that thi s

27 waiver agreement does not comply with the stringent requirements of the OWBPA, deny the Motion

28

9
PLTS’ MEMO. IN OPPOSITION TO DFT’S MOTION TO DISMISS PLTS’ FIRST AMENDED COMPLAINT WITHOUT LEAVE TO AMEND CASE NO. C 03 04529 RMW

1 to Dismiss, and allow the Plaintiffs to proceed with their ADEA claims.2

2

2. IBM’s Waiver Makes a Material Omission of Fac t Because it Fails to Inform

Employees of Their Right to Test the Knowing and Voluntary Nature of the

3

Waiver in Court Under the OWBPA.

4

Because IBM’s Waiver fails to clearl y explain to IBM employees that filing a charge of age

5 discrimination with the EEOC does not constitut e the filing of litigation which alone c an be legally

6 binding upon IBM, and because IBM’s Waiver further fails to inform IBM employees that

7 regardless of the EEOC’s determination, an y suit which the y might file in court (as opposed to suit

8 by the EEOC) could be deemed to violate IBM’s Waiver, IBM’s Waiver contains a material

9 omission which renders it i nvalid under the OWBPA. 29 C. F.R. § 1625.22 (a) of the re gulations

10 promulgated by the EEOC states:

11

(a) Introduction. (1 ) Congress amended the AD EA in 1990 to clarif y the

prohibitions against discrimination on the basis of age. In Title II of OWBPA,

12

Congress addressed waivers of ri ghts and cl aims under the AD EA, amending

section 7 of the ADEA by adding a new subsection (f).

13

* * *

14

(3) Other facts and circumstances may bear on the question of whether the waiver

is knowing a nd voluntary, as, for ex ample, if there is a mat erial mistake,

15

omission, or misstatement in the information furnished b y the employer to an

employee in connection with the waiver. (Emphasis added.)

16

17 This admonition is repeated in § 1625.22(b)(4), which declares:

18

(4) The waiver agreement must not have the effect of misleading, misinforming,

or failing to inform participants and affected individuals. Any advantages or

19

disadvantages described shall be presented without either exaggerating the

benefits or minimizing the limitations. (Emphasis added.)

20

21

Certainly laypersons cannot uniforml y have att ributed to t hem detailed k nowledge of t he

22 Civil Rights Ac ts and in particular the ADEA/OWBPA and t he structured nature of th e

23 EEOC’s/ADEA’s administrative and judicial enforcement me chanism. Indeed, the ADEA does not

24

25

2 Plaintiffs respectfully urge that this Court avoid the approach of the district court in Thomforde v. IBM, Civ. No. 02-CV-4817 (JNE/JGL) (D. Minn. 1/27/04). That decision, which Plaintiffs

26

understand will be appealed to the Eighth Circuit, is devoid of recognition of the OWBPA stringent requirements, the underlying thrust of Oubre, and Congress’s clear placement of the burden of proof

27

on the party asserting the validity of an ADEA waiver. Rather, the district court in Thomforde merely focused upon the question, “Is there any language anywhere in IBM’s Waiver which in

28

isolation may be viewed as barring Plaintiff’s ADEA claim?” Such an approach does not comport with the stringent requirements of the OWBPA.

10

PLTS’ MEMO. IN OPPOSITION TO DFT’S MOTION TO DISMISS PLTS’ FIRST AMENDED COMPLAINT WITHOUT LEAVE TO AMEND CASE NO. C 03 04529 RMW

1 even require a right to sue letter or waiting for final action by the EEOC but merely requires that an

2 individual wait 60 days after filing an ADEA charge, regardless of action or i naction on the part of

3 the EEOC, to file suit. 29 U.S .C. § 626(d). This contrasts with Title VII, where an EEOC right to

4 sue letter is a prerequisite to filing suit. 42 U.S.C. §2000e-5(f)(1).

5

IBM should have and could have made these distinctions clear by using added language such

6 as:

7

However, although you may file a charge with the U.S. Equal Employment

Opportunity Commission, and the EEOC in its discretion may file suit for

8

statutory limited injunctive relief, neither the EEOC on your behalf nor you

individually or in concert with others may obtain monetary relief through such

9

litigation. You may not under any circumstances file or join an individual or

private action against IBM under the Age Discrimination in Employment Act or

10

seek or obtain monetary damages.

11 For another example of appropriate language, see Form F-1, S ection 2(a), Barbara T. Lindemann &

12 David D. Kadue, Age Discrimination in Employment Law 1417 (2003) (attached hereto as Exhibi t

13 2).

14

D. IBM’s Waiver Constitutes A Contract of Adhesion.

15

IBM’s Waiver is a contract of adhesion drafted unilaterall y by IBM and not subject to

16 individual negotiation. 17 A Am.Jur. 2d, Contracts § 348 (1991) . While the OWBPA imposes yet

17 stricter requirements than contr act law, federal law “‘does not supplant s tate law governing the 18 unconscionability of adhesive contracts.’” Circuit City Stores v. Mantor , 335 F.3d 1101, 11 05 (9th 19 Cir. 2003), quoting Ingle v. Circuit City Stores, Inc., 328 F.3d 1165, 1174 n. 10 (9th Cir. 2003). The

20 teachings of Graham v. Scissor-Tail Inc. (Cal. 1990) 623 P.2d 165, 28 Cal.3d 807, are instructive in

21 this regard. Graham, id. at 172, n. 16, states:

22

Such terms, of cours e, are subject to int erpretation under establi shed principles.

The rule requiring the resolution of ambiguities against the drafting party ‘applies

23

with peculiar force in the case of a contract of adhesion. Here the p arty of

superior bargaining power not only prescribes the words of the instrument but the

24

party who subscribes to it lacks the economic strength to change such language.

…’ [Citations omitted.]

25

Graham continues, id. at 172:
26

Generally speaking, there are two judiciall y imposed l imitations on the

27

enforcement of adhesion …. The first i s that such a contract or provi sion which

does not fall within the reasonable expectations of the weaker or “adhering” party

28

will not be enforced against him. [Citations omitted.]

11
PLTS’ MEMO. IN OPPOSITION TO DFT’S MOTION TO DISMISS PLTS’ FIRST AMENDED COMPLAINT WITHOUT LEAVE TO AMEND CASE NO. C 03 04529 RMW

1 Thus, the ambiguities and contradictions in I BM’s Waiver are to be construed against IBM and in

2 favor of Plaintiffs. Even und er general contract pri nciples which are less prot ective than th e

3 OWBPA, the conflicting provisions of IBM’s W aiver should be construed to protect Plaintiffs’

4 ADEA rights

5

E. Plaintiffs Did Not Waive Their ERISA Claims By Signing IBM’s Waiver.

6

Contrary to Defendant's assertion, IBM’s Waiver does not i nclude within its purview

7 Plaintiffs' claims for violation of ERISA. On p age 1 of I BM’s Waiver, Plaintiffs agreed to r elease

8 IBM “from all claims, demands, actions or liabilities you may have against IBM of whatever kind . .

9 . ,” but ER ISA is not included in the recitation of statutory rights and causes of action i ncluded in

10 the waiver set forth i n paragraph 4 o f the Agreement. R ather, IBM’s Waiver expressly reserves

11 employee rights to pursue certain ERISA actions:

12

This Release does not prevent you from enfor cing your nonforfeitable ri ghts to

your accrued b enefits (within the meanin g of §§ 203 and 204 of the Employee

13

Retirement Income Security Act of 1974 as amended), as of th e date of

termination of your IBM employment, under the IBM personal p ension plan or

14

the IBM retirement plan as applicable and the IBM PDSP 401(K) which are not

released hereby but survive unaffected by this document.

15

16 This paragraph is not only another example of the con fusing, technical language in IBM’s Waiver,

17 but it also plainly reserves the ri ght of employees to pursue certain rights pursu ant to ER ISA.

18 Whether these rights are included in t he ERISA claim set forth in t he First Amended C omplaint

19 remains to be determi ned. The langua ge set forth in IBM’s Waiver is far from the plain, non-

20 technical language necessary to waive Plainti ff's ERISA claims and comply with either the

21 OWBPA, or judicially related protections applicable to contracts of adhesion. The references under

22 ERISA to “accrued” benefits and statutor y sections 203 and 204 are not pl ain language which lay

23 people would readil y understand. The Court should di smiss with prejudice the Defendant's

24 Counterclaim with regard to Count V of the First Amended Com plaint, and allow P laintiffs to

25 proceed with their ERISA claim.

26

F. The First Amended Complaint Contains A “Short And Plain S tatement Of The

Claim” That IBM’s Waiver Is Invalid, And That Is All That Is Required.

27

28

IBM contends, Memorandum, p. 8 , that P laintiffs do not alle ge any facts up on which the

12
PLTS’ MEMO. IN OPPOSITION TO DFT’S MOTION TO DISMISS PLTS’ FIRST AMENDED COMPLAINT WITHOUT LEAVE TO AMEND CASE NO. C 03 04529 RMW

1 Release can be held invalid. Paragraph 17 of the First Amended Complaint states:

2

The Releases are ille gal on their face becaus e they violate the OWBPA and the

regulations implementing the OWBPA, 29 C.F.R. § 1625.22. In par ticular, the

3

Releases contain mat erial mistakes, omis sions, and/or mis statements of

information, and are not drafted in plain lan guage calculated to be understood by

4

the average individual eligible to participate.

5 According to IBM, however, this all egation is insufficient. Rathe r, IBM contends that P laintiffs

6 must allege specific facts establishing that IBM’s Waiver is invalid and that absent such allegations,

7 the First Amended Complaint fails to state a claim upon which relief may be granted.

8

The Supreme Court rej ected a very similar contention in Swierkiewicz v. Sorema N.A. , 534

9 U.S. 506 (2002), and this Court should do so here. In Swierkiewicz, the Court held that a complaint

10 in an employment discrimination lawsuit need not contain specific facts establishing a prima facie

11 case of discrimination, but “ instead must contain only 'a short and plain statement of the claim

12 showing that the ple ader is entitled t o relief.’ Fed. Rul e Civ. Proc. 8(a)(2).” Id. at 508. The only

13 pleading requirement applicable to an emplo yment discrimination complaint, according to

14 Swierkiewicz, is that the complaint “gives respondent fair notice of the basis for petitioner's claims.”

15 Id. at 512.

16

The First Amended Complaint plainly gives IBM fair notice of Plaint iffs' claim that IBM’s

17 Waiver is invali d, asserting that IBM’s Waiver violates the OWBPA and th e implementing

18 regulations because it contains materi al mistakes, omissions, and/or miss tatements, and is not

19 drafted in plain langua ge calculated to be understood b y the av erage individual. These allegations

20 give Defendant fair notice of the basis for Plaintiffs ' claim that IBM’s Waiver is invalid. That is all

21 that is required b y Rule 8(a)(2) and Swierkiewicz. The Court should r eject Defendant's contention

22 that the First Amended Complaint does not allege an y facts upon which IBM’s Waiver can be held

23 invalid.

24 V. CONCLUSION

25

IBM has not met it s burden of proof that “b eyond a doubt” its W aiver complies with the

26 dictates of the OWBPA. IBM’s Waive r contains confusing and contradictory language and

27 technical jargon which is not calculat ed to be understood by the average individual signing the

28 document. Moreover, IBM’s Waiver contains material omissi ons and misl eads employees to

13
PLTS’ MEMO. IN OPPOSITION TO DFT’S MOTION TO DISMISS PLTS’ FIRST AMENDED COMPLAINT WITHOUT LEAVE TO AMEND CASE NO. C 03 04529 RMW

1 believe that despite the release language in IBM’s Waiver, they could still bring suit for violations of

2 the ADEA and ERISA. IBM’s Waiver is in effect a contract of adhesion which should be construed

3 against IBM. Under these circumstan ces, IBM’s Waiver is not valid and do es not preclude

4 Plaintiffs’ claims here. Accordingly, IBM’s Motion to Dismiss should be denied.

5 Dated: April 2, 2004
6

McTEAGUE, HIGBEE, CASE, COHEN WHITNEY & TOKER, PA

7
8
Dated: April 2, 2004
9

By __________________________________ JEFFREY NEIL YOUNG Attorney for Plaintiffs

10

By __________________________________

PATRICK N. McTEAGUE

11

Attorney for Plaintiffs

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

14
PLTS’ MEMO. IN OPPOSITION TO DFT’S MOTION TO DISMISS PLTS’ FIRST AMENDED COMPLAINT WITHOUT LEAVE TO AMEND CASE NO. C 03 04529 RMW

 
 1 Jeffrey Neil Young (Maine SBN 3874)

Patrick McTeague (Maine SBN 621)

2 McTEAGUE, HIGBEE, CASE, COHEN

WHITNEY & TOKER, PA

3 PO Box 5000

Topsham, ME 04086

4 Telephone: 207.725.5581

Facsimile: 207.725.1090

5 e-mail:

jyoung@me-law.com

6 Robert E. Jesinger, SBN 59550

Wylie, McBride, Jesinger, Platten & Renner

7 2125 Canoas Garden Avenue Suite 120

San Jose, CA 95125

8 Telephone: 408.979.2920

Facsimile: 408.979.2934

9 e-mail:

rjesinger@wmjpr.com

10 Attorneys for Plaintiffs

11

12

UNITED STATES DISTRICT COURT

13

NORTHERN DISTRICT OF CALIFORNIA

14

15 WILLIAM SYVERSON, RUTH ALICE BOYD, Case No. C 03 04529 RMW

DALE CAHILL, JACK FRIEDMAN, PAUL

16 GROMKOWSKI, SYLVIA JONES, ROLF

NOTICE OF MOTION AND MOTION TO

MARSH, WALTER MASLAK, JAMES

DISMISS DEFENDANT’S

17 PAYNE, and ANTONIO RIVERA, individually COUNTERCLAIM; MEMORANDUM IN

and on behalf of others similarly situated,

SUPPORT OF MOTION TO DISMISS

18

Plaintiffs,
19
v.
20

Date and Time: Courtroom: Judge:

April 30, 2004 10:00 A.M. 6, 4th Floor Hon. Ronald M. Whyte

INTERNATIONAL BUSINESS MACHINES 21 CORPORATION,

22

Defendant.

ACCOMPANYING PAPER: [PROPOSED] ORDER GRANTING MOTION TO DISMISS DEFENDANT’S COUNTERCLAIM

23

24 AND RELATED COUNTERCLAIM
25

26

27

28

1
PLTS’ MTN TO DISMISS DFT COUNTERCLAIM; MEMO IN SUPPORT OF MOTION; PROPOSED ORDER CASE NO. C 03 04529 RMW

1

NOTICE OF MOTION AND MOTION

2

To Defendant/Counterclaim Plaintiff International Business Machines, Inc. (“IBM”), and its

3 attorneys of record:

4

PLEASE TAKE NOTICE that on April 30, 2004 at 10:00 a.m., in Courtroom 6 of this Court,

5 located at 280 South First Street, 4th Floor, San J ose, California 9511 3-3008, before the Honorable

6 Ronald M. Wh yte, Plaintiffs/Counterclaim-Defendants will and do he reby move, pursuant to

7 Federal Rule of Civil Procedure 12(b)(6), for an order dismissing Defendant’s Counterclaim, dated

8 February 12, 2004 and filed with the Court on February 12, 2004.

9

The motion is made on the grounds that Plaintiffs’ claim for violation of ERISA is preserved

10 by the General Release and Covenant Not to Sue. Plaintiffs further contend that because their

11 ERISA claim is inext ricably intertwined with Plainti ffs’ claim for violations of the Age

12 Discrimination in Employment Act, 29 U.S.C . § 621 et seq., the ERISA claim is not barred b y the 13 General Release and Covenant Not to Sue. Moreover, the General Release and Covenant Not to Sue

14 is void as a contract of adhesion. Finall y, because the General Release and Covenant Not to Sue

15 does not compl y with the Older Wo rkers’ Benefit Protection Act, 26 U.S.C. § 626(f), the General 16 Release and Covenant Not to Sue is not valid as to any claims, including those under ERISA.

17

The motion is based on this notice and the following memorandum in support of the motion;

18 the accompanying proposed order granting the motio n; all matters of which the Co urt may or must 19 take notice; the record of this action; and any oral or documentary evidence received by the Court at

20 the hearing on the motion.

21

22

23

24

25

26

27

28

2
PLTS’ MTN TO DISMISS DFT COUNTERCLAIM; MEMO IN SUPPORT OF MOTION; PROPOSED ORDER CASE NO. C 03 04529 RMW

1

MEMORANDUM

2 I.
3

INTRODUCTION On or about October 7, 2003, ten fo rmer employees filed a representative class action on

4 behalf of themselves and other similarl y situated emplo yees, including 126 referenced by name in

5 Exhibit A to the Complaint , against Defendant International Business Machines Corporation 6 (“IBM”). The Complaint alleged violations of the Older Workers’ Benefit Protection Act, 29 U.S.C.

7 § 626(f)(1) (“the OWBPA”), the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.

8 (“the ADEA”), and the Emplo yee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 et 9 seq. arising out of an ongoing reduction in force by IBM since January 2001. Plaintiffs subsequently

10 filed a First Amended Complaint on or about December 19, 2003.

11

On February 12, 2004 IBM filed a Moti on to Dismiss Plaintiffs’ First Amended Com plaint

12 Without Leave to Amend (“Motion to Dismiss”) premised upon the fact that Plaintiffs had executed 13 IBM’s waiver (see, e. g. Exhibit L to the First Amended Complain t) entitled “General Release and

14 Covenant Not to Sue” (“IBM’s Waiver”) at the time of their separation from IBM. IBM also filed a

15 Counterclaim asserting that Plaintiffs had violated the terms of IBM’s Waiver by including a claim 16 for violation of the Empl oyee Retirement Income Securit y Act (“ER ISA”), 29 U.S. C. § 1001 et

17 seq., in Count V of the First Amended Complaint.

18

It is undisput ed that the lan guage of IBM’s Waive r has not vari ed materially throughout

19 IBM’s ongoing reductions in force. IBM’s Waiver contains both a release and coven ant not to sue,

20 which IBM merges both into one term, labeling the release and covenant not to sue as “Release.” In

21 all instances, I BM’s Waiver states that the employee agrees “that this Release covers, but i s not

22 limited to, claim s arising f rom the A ge Discrimination in Empl oyment Act of 1967, as amended, 23 Title VII of Civi l Rights Act of 1964, as amended, the Work er Adjustment and R etraining

24 Notification Act, and any other federal, state or local law dealing with discrimination in employment

25 including, but not limited t o, discrimination based on sex , sexual orientation, race, national ori gin, 26 religion, disability, veteran status or age, and claims for attorneys’ fees.” Elsewhere, IBM’s Waiver

27 expressly references claims under ER ISA, declaring, “This Release does not prevent you from

28 enforcing your non-forfeitable rights to your accrued benefits (within the meaning of Sections 203

1
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1 and 204 of the Emplo yee Retirement Income Security Act of 1974 , as amended), as of the date of

2 termination of your IBM employment, under the IBM Personal Pension Plan or the IBM Retirement 3 Plan as applicable under IBM TADSP 701(k) which are not released hereby but survive unaffected

4 by this document.” Emphasis added. IBM’s Waiver continues, “This cov enant not to sue does not

5 apply to actions based solely under the Age Discrimination in Employment Act of 1967 as amended. 6 That means that if you were to sue IBM or thos e associated with IBM only under the A ge

7 Discrimination in Employment Act of 1967, as amended, you would not be liable under the terms of

8 this Release for their attorneys’ fees and other costs and expenses of defending against a suit. This 9 Release does not preclude filing a charge with the U.S. Equal Empl oyment Opportunity

10 Commission.”

11 II. SUMMARY OF ARGUMENT

12

Plaintiffs did not w aive their rights to claims for violation of ERISA by virtue of their

13 execution of IBM’s Waiver. As set forth above, IBM’s Waiver ex pressly preserves Plaintiffs’ right

14 to bring suit for loss of accrued ben efits covered by ERISA. One of those accrued benefits was

15 money deposited by IBM in a Futur e Health Account fo r use b y the employee to pa y for he alth 16 benefits upon his retirement. A ffidavit of Wi lliam Syverson (“Syverson Aff.”), ¶3. Upon

17 information and belief, upon termi nation by IBM, the accrued benefit in the employee’s Future

18 Health Account reverted to IBM. Id. at ¶4. These accounts are governed by ERISA, and inasmuch as 19 IBM’s Waiver expressly preserves their ri ght to s ue for lo ss of accrued b enefits, Plaintiffs cannot

20 have violated ERISA.

21

Moreover, Plaintiffs’ entitlement to fringe benefits, including health and pension benefits, is

22 inextricably intertwined with their claim for violation of the ADEA and OWBPA. Plaintiffs contend 23 that as a result of their termination, they have los t accrued health benefits and t hat a p rincipal

24 motivation for their terminations was to avoid the payment of pension costs. If Plaintiffs prevail in

25 this action, it i s clear under the ADEA th at they are entitled to recover the valu e of their lost fringe 26 benefits, as well as lost wages. See, e. g., Fariss v. Lynchburg Foundry, 769 F.2d 958, 964 (4th Cir. 27 1985), citing Kelly v. American Standa rd, Inc., 640 F.2d 974, 978 (9th Cir. 198 1) (wages under

28 ADEA include fringe benefits). Count V of t he First Amended Co mplaint addresses IBM’s

2
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1 motivation for the terminations and preserves Plainti ffs’ right to recover fringe benefits governed by

2 ERISA.

3

In any event, Plaintiffs contend that IBM’s Waiver constitutes a contract of adhesion and is

4 therefore unenforceable. Where, as here, the re is a disparit y in ba rgaining power, a greements like

5 IBM’s Waiver are to be strictly construed against the drafter and may be unenforceable as contracts 6 of adhesion. See Graham v. Scissor-Tail Inc. (Cal. 1990) 623 P.2d 165, 28 Cal.3d 807. Her e, the

7 relative disparity between the parties and the use of con fusing, unclear language render IBM’s

8 Waiver invalid even under general contract law.

9

Finally, Plaintiffs contend that IBM’s Release is invalid as a matter of law because it violates

10 the OWBPA and therefore is not enforceable. Where a release is invalid under the OWBPA, claims

11 under the ADEA are clearly preserved. See, e.g. Kinghorn v. Citibank, N.A., 1999 W.L. 30534, at *4

12 (N.D. Cal. 1/20/99). Whether a release which is covered und er the OW BPA also renders nugatory 13 the purported release of non-A DEA claims app ears to b e a matter o f first im pression before this

14 Court. Plaintiffs contend that because IBM’s Waiver is invalid under the OWBPA, it is invalid as to

15 all claims w hich they purportedly waived. Among other infirmities, IBM’s Waiver includes and 16 commingles in the same do cument two sepa rate waivers quoted above, one denominated a

17 “Release” and the other termed a “Covenant Not to Sue,” which directly contradict one another with

18 respect to the key issue of waiver of A DEA rights. The confusing, misleading, and contr adictory 19 language contained in IBM’s Waiver on its face violates the prime requirement of the OWBPA that

20 waiver language must be "written in a manner calculated to be understood by such individual, or by

21 the average individual entitled to participate.” 29 U.S.C. § 626(f)(1)(A).

22

As "the party asserting the validity of a waive r," IBM has "the burden of proving in a court

23 of competent jurisdiction that a waiver was knowing and voluntary pursuant to paragraph (1) or (2).”

24 29 U.S.C. § 626(f)(3). The very language of IBM’s Waiver defeats Defendant's attempt to carry its

25 burden. Because the waiver does "not comply with OWBPA's stringent safeguards, it is 26 unenforceable against [Plaintiffs] insofar a s it purports to waive or release [their] ADEA claim, "

27 Oubre v. Entergy Operations, Inc., 522 U.S. 422, 427-28 (1998), or claims that are intertwined with

28 that claim, like claims for fringe benefits.

3
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1 III. ARGUMENT

2

A. IBM’s Release Exp ressly Preserves The Right To S ue For Loss Of Accrued

Benefits.

3

4

As recounted above, IBM’s Waiver expressly permits employees to bring suit for loss of

5 accrued benefits . IBM’s Waiver declares, “This Release does not prevent you from enforcing your 6 non-forfeitable rights to your accrued benefits (within the meaning of Sections 203 and 204” of

7 ERISA), or claims under IBM’s Personal Pension and/or Retirement Plan. In approximately 1999,

8 IBM established Future Health Accounts (“the FHA Plan”) for employees to help pay for medical 9 benefits upon retirement. Syverson Aff., ¶ 2. Under the terms of the FHA Plan, IBM agreed to

10 deposit $2,500 per year for each year of employment that an employee worked at IBM once the

11 employee reached age 40, up to a maximum of $25,000. Syverson Aff., ¶ 3. Interest on the account

12 accrued to the benefit of the employee. Id. However, upon information and belief, upon their 13 termination by IBM, the money in Plaintiffs’ FHA Plan accounts reverted to IBM, thus denying

14 them accrued benefits. Id. at ¶ 4.

15

The FHA Plan appears to be somewhat of a hybrid welfare plan and defined contribution

16 plan. Both welfare and defined contribution plans are governed by ERISA. 29 U.S.C. §§ 1002(2)(A)

17 and 1003(a)(1). At this point in the litigation, Plaintiffs do not have a copy of the actual plan

18 documents to make a final determination as to whether the FHA Plan is a welfare plan, a defined 19 contribution plan, neither, and/or whether the FHA Plan in fact is governed by ERISA. Under these

20 circumstances, however, where Plaintiffs can assert a colorable claim that they have been denied

21 accrued benefits as a result of their termination by IBM, they did not violate the express terms of

22 IBM’s Waiver in bringing suit to enforce those rights.

23

B. Plaintiffs’ ADEA And OWBPA Claims Are Inextricably Intertwined With Their

Claims For Benefits Governed By ERISA.

24

25

As a result of their termination by IBM, not only have Plaintiffs lost the accrued value of

26 their FHA Plan accounts, but Plaintiffs will lose literally hundreds of thousands of dollars, if not

27 millions of dollars, individually over their lifetime in pension benefits. See, e.g. Syverson Aff., ¶ 5

28 and Exhibit 1 thereto, showing a potential loss in pension benefits of $777,000 had Syverson worked

4
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1 at IBM to age 60 and lived until age 80. Section 7(b) of the ADEA, 29 U.S.C. § 626(b), expressly

2 incorporates the remedial scheme of the Fair Labor Standard Act (“FLSA”), including section 16(b), 3 29 U.S.C. § 216(b). As a result, an employer who violates the ADEA is liable for back wages. In 4 Kelly v. American Standard, Inc., 640 F.2d 974, 978 (9th Cir. 1981), the Ninth Circuit declared,

5 “Pursuant to these [FLSA and ADEA] statutes, an employer who violates the ADEA is liable for 6 back wages and benefits …” Emphasis added. Accord: Fariss v. Lynchburg Foundry, 769 F.2d 958, 7 964-65 (4th Cir. 1985), collecting cases defining wages to include fringe benefits, including health

8 and pension benefits. Thus, when IBM discriminatorily terminated Plaintiffs, it achieved significant 9 savings in health and pension costs covered by ERISA. These claims for relief are inextricably

10 intertwined with Plaintiffs’ ADEA claims. Count V of the First Amended Complaint is designed to

11 protect Plaintiffs’ right to recovery of such benefits.

12

Moreover, ERISA Section 510, prohibits interference with protected rights under ERISA or

13 the alterment of rights. 29 U.S.C. § 1140. Where one fails to state such a claim, relief can be denied. 14 Adams v. Ameritech Services, Inc., 231 F.3d 414, 430 (7th Cir. 2000). Count V is necessary to

15 preserve this allegation.

16

C. Because IBM’s Waiver Constitutes A Contract of Adhesion, Plaintiffs’ Cannot

Have Waived Their ERISA-based Rights.

17

18

Even if IBM’s failure to comply with the OWBPA only applies to ADEA claims and does

19 not render nugatory Plaintiffs’ purported waiver of their ERISA-based rights, general principles of

20 contract law still apply to the release of the ERISA claims. In Aikins v. Tosco Refining Co. Inc., No.

21 C-98-00755, 1999 WL 179686, at * 5 (N.D. Cal. Mar. 26, 1999), discussing the Supreme Court’s

22 decision in Oubre v. Entergy Operations, Inc., 522 U.S. 422 (1998), this Court noted that the 23 OWBPA does not preclude reliance upon general contract principles as they apply to non-ADEA

24 claims. The Court stated:

25

Oubre was based on the clear statutory commands of a [sic] the OWBPA, and that

Act’s requirements for waivers of ADEA claims … The decision does not purport

26

to decide how general contract principles would apply to non-ADEA claims, such

as the Title VII or FEHA race discrimination claims made by the plaintiffs.”

27

28 Thus, traditional principles of contract law continue to apply here, in addition to, or in lieu of, the

5
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1 OWBPA.

2

Plaintiffs contend that applying federal common law, IBM’s Waiver is a contract of adhesion

3 drafted unilaterally by IBM and not subject to individual negotiation. 17A Am.Jur. 2D, Contracts §

4 348 (1991). The teachings of Graham v. Scissor-Tail Inc. (Cal. 1990) 623 P.2d 165, 28 Cal.3d 807,

5 are instructive. Graham, id. at 620, n. 16, states:

6

Such terms, of course, are subject to interpretation under established principles.

7

The rule requiring the resolution of ambiguities against the drafting party ‘applies

with peculiar force in the case of a contract of adhesion. Here the party of superior

8

bargaining power not only prescribes the wor ds of the instrument but the party

who subscribes to it l acks the e conomic strength to change such language. …’

9

Citations omitted.

10

Graham continues, id. at 622:

11

Generally speaking, there are two judiciall y imposed l imitations on the

enforcement of adhesion …. The first is t hat such a contract or provision which

12

does not fall within the reasonable expectations of the weaker or “adhering” party

will not be enforced against him. Citations omitted.

13

14 Thus, the ambiguities and contradictions in I BM’s Waiver are to be construed against IBM and in

15 favor of Plaintiffs. Even under general contract principles which are less protective than t he 16 OWBPA, the conflicting provisions of IBM’s W aiver should be construed to protect Plaintiffs’

17 ERISA rights.

18

D. Because IBM’s Waiver Does Not Co mply With the Stringen t Requirements of

the OWBPA, Plaintiffs Cannot Be Deemed to Have Waived Their Right to Bring

19

Suit for Violation of ERISA.

20

As set forth in greater detail below, Plaintiffs contend that IBM’s Waiver does not comply

21 with the stringent requirements of the OWBPA. If it does not, then Plaintiffs’ claim for violation of

22 the ADEA clearly are preserved. See, e.g. Kinghorn v. Citibank, N.A., 199 W.L. 30534, at *4 23 (N.D.Cal. 1/20/99). In Kinghorn, plaintiff challenged the validity of a waiver on several grounds.

24 Although this Court rejected much of plaintiff’s argument, the Court found the ADEA waiver

25 invalid because it did not comply with one of the seven OWBPA factors regarding waivers of future 26 rights. The Court declared, “Because satisfaction of all seven OWBPA factors is the minimum

27 required showing for a valid ADEA waiver, plaintiff’s ADEA waiver is unenforceable.” Id. at *4.

28

Plaintiffs contend that if IBM’s Waiver is invalid under the OWBPA, then not only are their

6
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1 ADEA claims preserved, but so are claims for violations of other statutes, including ERISA. The

2 issue was expressly reserved in Oubre, 522 U.S. at 427-28, and this appears to be a matter of first 3 impression in this Circuit. There is a paucity of precedent elsewhere.1 Plaintiffs contend that

4 because their ADEA and ERISA claims are inextricably intertwined, since IBM’s Waiver is invalid

5 as to claims for violations of the ADEA, it also is invalid as to claims for violation of ERISA.

6

1. The Legislative History of the Older Workers' Benefit Protection Act and Oubre

Require Stringent Compliance to Waive Claims.

7

8

The OWBPA and Oubre require strict compliance with the OWBPA before an employee can

9 be found to have waived his statutory rights. Responding to evidence of abuse in the procurement of

10 waivers of ADEA c laims, Congress in 1990 amended the ADEA by enacting the OWBPA. The

11 OWBPA sets out with considerable specificity the minimum requirements which must be satisfied

12 before an employee can be he ld to have waived an ADEA claim, providing in p ertinent part, 26

13 U.S.C. § 626(f)(1)(A) (emphasis added):

14

(f)(1) An individu al may not waive any right or claim unde r this chapter unl ess

the waiver is knowing a nd voluntary. Except as provided in paragraph (2), a

15

waiver may not be considered knowing and voluntary unless at a minimum:

(A) the waiver is part of an agreement between the i ndividual and the

16

employer that is written in a manner cal culated to be understood by

such individual, or by the average individual eligible to participate;

17

18

The legislative histor y underlying the OWBPA establi shes that Congress intended the

19 judiciary to scrutini ze waiver agreements carefully to ensure that the specific requirements of

20 OWBPA are satisfied:

21

The Committee expects that courts reviewing the “knowing and voluntary” issue

will scrutinize carefully the complete circumstances in whi ch the w aiver was

22

executed . . . The bill establishes spec ified minimum requirements that must be

satisfied before a court may proceed to determine factually whether the execution

23

of a waiver was 'knowing and voluntary.'" See S. Rep. No. 101-263, at 32 (1990),

reprinted in 1990 U.S. C.C.A.N., 1509, 1527.

24

25

26

1 The only reported case Plaintiffs could locate addressi ng this i ssue following Oubre was Chaplin v. NationsCredit Corp., 307 F.3d 368, 375-76 (5th Cir. 2002). Unlike here, plaintiffs there did not assert a claim

27

for violation of the OWBPA or ADEA, but nonetheless asserted that because the release that they signed was invalid under principles established by Oubre and the OWBPA, the y had not waived their ERISA-based

28

claims for severance pay. Because Chaplin did not assert violatio ns of the ADEA i n conjunction with the ERISA claim, it is readily distinguishable from the instant case.

7
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1

EEOC regulations implementing the OWBPA p rovide how w aiver agreements should be

2 worded (emphasis added):

3

(b) Wording of waiver agreement.

(3) Waiver agreements must be drafted in plain language geared to the l evel of

4

understanding of the indiv idual party to the a greement or i ndividuals eligible to

participate. Employers should tak e into account such factors as the lev el of

5

comprehension and education of t ypical participants. Consideration of these

factors usually will require the limitation or eli mination of technical jargon

6

and of long, complex sentences.

(4) The waiver agreement must not have t

he effect of misleading,

7

misinforming, or failing to inform participants and affected individuals. Any

advantages or disadvantages described shall be presented without either

8

exaggerating the benefits or minimizing the limitations.”

9 29 C.F.R. § 1625.22(b)(3&4) (1998). The OWBPA and the implementing regulations thus establish

10 that a waiver is not knowin g and volu ntary, and thu s valid, unless: 1) the w aiver agreement is

11 written in a manner calculated to be unde rstood by the ave rage individual; 2) t he document is

12 drafted in plain language and avoids technical jargon; and 3) the agreement does not have the effect 13 of misleading, misinforming, or failing to inform affected individuals.

14

2. IBM Has Not Met The Burden Of Proving That IBM’s Waiver Complies With

The Requirements Of The OWBPA.

15

16

Under the OWBPA, IBM, not the Plaintiffs, has the burden of proving that its waiver

17 agreement complies fully with the stringent statutory safeguards: "A party asserting the validity of a

18 waiver shall have the burden of proving in a court of competent jurisdiction that a waiver was 19 knowing and voluntary pursuant to paragraph (1) or (2).” 29 U.S.C. § 626(f)(4). IBM’s Waiver is a

20 multi-page document captioned "General Release and Covenant Not to Sue," which, in its first

21 paragraph, defines both as a "Release.” The second paragraph on page 1 of IBM’s Waiver states:

22

In exchange for th e sums and bene fits received pursuant to th e terms of the

________________ [Resource Action or Separation All owance Plan],

23

______________ [name of emplo yee] agrees to release and h ereby does r elease

International Business Machines Corporation, its subsidiaries and affiliates, and

24

its and their bene fits plans (col lectively, hereinafter "IBM"), from all claims,

demands, actions or li abilities you may have against IBM of what ever kind

25

including, but not limited to, those that are related to your employment with IBM,

the termination of that employment, or ot her severance payments or your

26

eligibility for participation in a Reti rement Bridge, . . . or cl aims for attorne ys'

fees.

27

28

The fourth paragraph on page 1 states in pertinent part that the Release "covers" the ADEA:

8
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1

. . . You also agree that this Release covers, but is not limited to, claims arising

from the Age Discrimination in Employment Act of 1967, as amended . . .

2

The second page of IBM’s Waiver then states:
3

You agree that you will never institute a claim of any kind against IBM, or those

4

associated with IBM including, but not limited to, claims

related to your

employment with IBM or the termination of that employment or othe r severance

5

payments or your eligibility for participation in the retirement bridge . . . If you

violate this covenant not to sue by suing IBM or those associated with IBM, you

6

agree that y ou will pay all cost s and ex penses of de fending against the suit

incurred by IBM or those associated with IB M, including reasonable attorneys'

7

fees, and all further costs and fees, including attorney's fees, incurred in

connection with col lection. This covenant not to sue does not apply to a ctions

8

based solely under the Ag e Discrimination in Empl oyment Act of 1967, as

amended. That means that if you were to sue IBM or those associated with IBM

9

only under the Age Discrimination in Employment Act of 1967, as amended, you

would not be liable under the terms of this Release for their attorneys' fees and

10

other costs and expenses of defendin g against the suit. Th is Release does not

preclude filing a charge wi th the U.S. Equal Employment Opport unity

11

Commission. (Emphasis added).

12 IBM’s Waiver language is inherently contradictory, confusing, and misleading, and cannot pass

13 muster under the strict requirements of the OWPBA.

14

The fundamental flaw in the language quoted above is that it includes and commingles in the

15 same document, without differentiation, two waivers, one a “release” and the othe r a “covenant not 16 to sue,” and then defines “Release” to include both the “release” and the “covenant not to sue.” This

17 results in contradictory, confusing language which on it s face cannot be understood by the average

18 individual entitled to participate in the re source action or separation allowance plan. Comparison of 19 the language in paragraph 3 of IBM’s Waiver with the language on page 2 demonstrates the inherent

20 confusion.

21

Page 1 of IBM’s Waiver states th at the employee agrees to release IBM from all claims, and

22 that this release " covers" claims arising from the AD EA. Page 2 of IBM’s Waiver, however, states 23 that the Covenant Not to Sue, which is also confusingly included in and called a "Release" on page

24 1, "does not a pply to actions based solel y under t he Age Discrimination in Employment Act of

25 1967, as amended.” The “R elease” thus states two compl etely contradictory things; on pa ge 1 it 26 states that it covers ADEA claims, and on pa ge 2 it states that it "does not apply" to actions based

27 under the ADEA. This confusin g, contradictory language on it s face violates t he prime "stringent

28 safeguard" of the OWBPA – that waiver language must be written in “plain language” in a manner

9
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1 "calculated to be understood" by the a verage individual. 29 U.S.C. § 626(f)(A) and 29 C.F.R. §

2 1625.22(b)(3).

3

IBM’s Waiver fails to disti nguish between a release and a covena nt not to sue, and indeed

4 calls both concepts a "Release.” Average employees do not appreciate the legal di stinction between

5 these two concepts, and nothing in the OWBPA requires that emplo yees should be required to hire

6 experienced ADEA/OWBPA attorneys to ex plain these conce pts. The i nclusion of these two

7 concepts without explanation in one document and the r esulting conflicting provisions are obvious

8 sources of confusion which vi olate the OWBPA's requirement that waiver agreements be written in

9 plain language without technical jargon. See 29 C.F.R. Part 1625 (65 F.R. 77438, at * 77443,

10 available at 2000 W.L. 180424 (F.R.), declaring:

11

However, a point of cautio n is warranted with respect to such cov enants.

Although ADEA covenants not to sue (absent d amages) operate as the fun ctional

12

equivalent of waivers, they carry a higher risk of viol ating the OWBPA by virtue

of their wording. An emplo yee could read “covenant not to sue” or “promise not

13

to sue” as giving up not onl y the right to challenge a p ast employment

consequence as an ADEA violation, but also the ri ght to challenge in court the

14

knowing and voluntary nature of his or her waiver a greement. The chance of

misunderstanding is heighten ed if the covenant not to sue i s added to an

15

agreement that already includes an ADEA waiver clause. The covenant in such a

case would have no legal effect separate from the waiver clause. Nonetheless, its

16

language would appear to bar an individual’s access to court.

17

The confusing, contradictory, and misleading language in IBM’s Waiver on its face violates

18 the fundamental safeguard in the OWBPA that wa ivers be written in a manner "calcul ated to be

19 understood" by average employees. 29 U.S .C. § 626(f) (1)(A). The Court sho uld rule that b ecause

20 IBM’s Waiver does not compl y with t he stringent requir ements of the OW BPA, Plaintiffs may

21 proceed with their ERISA claims, as well as within their ADEA claims for reasons which will be set

22 forth in greater detail in a Memorandum to be filed with the Court on April 2, 2004.

23

CONCLUSION

24

For all of the foregoing reasons, IBM’s Counterclaim should be dismissed.

25 Dated: March 16, 2004
26

McTEAGUE, HIGBEE, CASE, COHEN WHITNEY & TOKER, PA

27

By __________________________________

JEFFREY NEIL YOUNG

28

Attorney for Plaintiffs

10
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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 Case5:03-cv-04529-RMW Document292 Filed01/29/09 Page1 of 3

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION

WILLIAM SYVERSON, PATRICK BOONE, LEE DESHLER, ROBERT FLOWERS, BARRY GERARD, TINA GLEISNER, THOMAS GOMEZ, EDWIN "DANA" GOODLOE, ROLF MARSH, DANIEL MOCZAN, JAMES PAYNE, and ANTONIO R1VERA, individually and on behalf of others similarly situated,
Plaintiffs,

*E-FILED - 1/29/09*
Case No. r 01 04~?<) RMW
ORDER OF
DISMISSAL WITH PREJUDICE

v.

INTERNATIONAL BUSINESS MACHINES CORPORATION,

Defendant.

Pursuant to Rule 41(a) ofthe Federal Rules of Civil Procedure, Named Plaintiffs William Syverson, Patrick Boone, Lee Deshler, Robert Flowers, Barry Gerard, Tina Gleisner, Thomas Gomez, Edwin "Dana" Goodloe, Rolf Marsh, Daniel Moczan, James Payne, and Antonio Rivera, as evidenced by the signatures of all attorneys of record, DISMISS WITH PREJUDICE, any and all claims against Defendant that were or could have been raised in the above-styled lawsuit. Each party agrees to bear hislher or its own costs in this litigation.

Submitted this..11 day of_-:k"""Ot.""n.W!!A.a>!&!:J+_--" 2009.

Case5:03-cv-04529-RMW Document292 Filed01/29/09 Page2 of 3

Agreed to on behalf of each of the Named Plaintiffs:
~d·~ -- Jeffrey Neil Y ng (Mame SBN 3874)
Patrick McTeague (Maine SBN 621) MCTEAGUE, HIGBEE, CASE, COHEN, WI-IITNEY & TOKER, PA P.O. Box 5000 Topsham, ME 04086 (207) 725-5581- Telephone (207) 725-1090 - Telecopier
Teresa Demchak (SBN 123989) Morris J. Baller (SBN 048928) Heather Mills (SBN 215293) GOLDSTEIN, DEMCHAK, BALLER, BORGEN & DARDARIAN 300 Lakeside Drive, Suite 1000 Oakland, CA 94612 (510) 763-9800 - Telephone (510) 835-1417- Telecopier

Agreed to on behalf of Defendant:
~Cln- 'B. ~Clu'u) h~
Glen D. Nager (D.C. Bar 385405) Alison B. Marshall (D.C. Bar 426168) JONES DAY 51 Louisiana Avenue, N.W. Washington, D.C. 20001 (202) 879-3939 - Telephone (202) 626-1700 - Telecopier
Attorneys for Defendant International Business Machines Corporation

Christopher Platten (SBN 111971) WYLIE, MCBRIDE, PLATTEN & RENNER 2125 Canoas Garden Avenue, Suite 120 San Jose, CA 95125 (408) 979-2920 - Telephone (408) 979-2934 - Telecopier

Attorneys for Named Plaintiffs William Syverson, Patrick Boone, Lee Deshler, Robert Flowers, Barry Gerard, Tina Gleisner, Thomas Gomez, Edwin "Dana" Goodloe, Rolf Marsh, Daniel Moczan, James Payne, Antonio Rivera

- 2-

Case5:03-cv-04529-RMW Document292 Filed01/29/09 Page3 of 3
The Court. SO ORDERS THIS _ 29_ _ _day of _Ja_nu_ar_ y __ • 2009. that the
case is DISMISSED WITH PREJUDICE. U.S. District Court Judge
-3 -

 
 Syverson v. International Business Machines Corp., Not Reported in F.Supp.2d (2007)
2007 WL 2904252 United States District Court, N.D. California,
San Jose Division.
William SYVERSON, Patrick Boone, Lee Deshler, Robert Flowers, Barry Gerard, Tina Gleisner, Thomas Gomez, Edwin “Dana” Goodloe, Rolf Marsh, Daniel Moczan, James Payne, and Antonio Rivera, individually and on behalf of others similarly situated, Plaintiffs, v. INTERNATIONAL BUSINESS MACHINES CORPORATION, Defendant.
No. C-03-04529 RMW. | Oct. 3, 2007.
Attorneys and Law Firms
Jeffrey Neil Young, Patrick McTeague, Teresa Demchak, Morris J. Baller, Heather Mills, Christopher Platten, for Plaintiffs.
Jeffrey D. Wohl, Kerri N. Harper, Laura N. Monfredini, Jennifer A. Blackstone, for Defendants.
Opinion
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
RONALD M. WHYTE, United States District Judge.
*1 Defendant International Business Machines (“IBM”) brings this motion to dismiss plaintiffs’ claim for declaratory and injunctive relief for violation of the Older Workers Benefit Protection Act (“OWBPA”), 29 U.S.C. § 626(f), and plaintiffs’ disparate impact age discrimination claim as to defendant’s individual terminations of employees in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621. The court heard oral argument on the motion on July 27, 2007. The court has read the moving and responding papers. For the reasons stated below, the court grants defendant’s motion to dismiss plaintiffs’ first claim with prejudice and grants defendant’s motion to dismiss part of plaintiffs’ second claim with twenty days’ leave to amend.
I. BACKGROUND
Plaintiffs are former employees of defendant. Second Am. Compl. (“SAC”) ¶ 1. Plaintiffs allege they are members of a class of persons protected by the ADEA, 29 U.S.C. § 626(b). Id. ¶ 6.
From July 1, 2001 through May 4, 2005, defendant began involuntary group terminations of its workforce, called Resource Actions. Id. ¶ 48. Defendant performed at least 50 Resource Actions during this period. Id. ¶ 49. As a result of these Resource Actions, tens of thousands of employees were purportedly terminated from their employment by defendant. Id. ¶ 49. Plaintiffs allege that defendant’s procedures allowed managers directly responsible for making termination decisions to use highly subjective criteria in implementing the Resource Actions. Id. With regard to group terminations, plaintiffs allege that defendant refused to consider older individuals for placement elsewhere in the company, retained younger employees to perform work formerly performed by individuals 40 years of age or older who were selected for termination, recruited extensively at colleges and universities, terminated employees over the age of 40 in order to no longer have to contribute funds to their Future Health Accounts, and made stereotypical comments based on age. Id. ¶ 51. Plaintiffs also allege that from July 1, 2001 through May 4, 2005, defendant engaged in the practice of age discrimination in implementing individual terminations independent of the Resource Actions. Id. ¶¶ 54, 55.
In both the Resource Actions and individual terminations, defendant offered severance packages to employees selected for termination in exchange for signing a General Release and Covenant Not to Sue (“Release”). Id. ¶ 8. All named plaintiffs
1

Syverson v. International Business Machines Corp., Not Reported in F.Supp.2d (2007)
terminated pursuant to defendant’s Resource Actions signed the Release with the exception of plaintiff Tina Gleisner. Id. ¶ 23. Previously, this court entered an order granting defendant’s motion to dismiss the complaint with prejudice, holding that the Release was written in a manner understood by an average individual selected by defendant for employment termination and that it was knowing and voluntary under the OWBPA. On appeal, the Ninth Circuit held that the Release did not meet the minimum requirements under the OWBPA and was therefore not enforceable as a matter of law. Syverson v. International Business Machines Corp., 472 F.3d 1072, 1075 (9th Cir.2007).
*2 Plaintiffs bring two causes of action against defendant. In the first cause of action, plaintiffs allege that the Release is illegal on its face because it violates the OWBPA and regulations implementing the OWBPA. SAC ¶ 58. In the second cause of action, plaintiffs allege a violation of the ADEA based on the subjective use of procedures and criteria for implementing the group termination Resource Actions, and for plaintiffs individually terminated allegedly based on age. Id. ¶ 66, 67. For the first cause of action, plaintiffs seek an injunction preventing the reinstatement of the Release, an injunction requiring defendant to inform all employees terminated between July 1, 2001 and May 4, 2005 that the Release is invalid, and an injunction preventing IBM from engaging in further acts of discrimination against plaintiffs. Id . ¶ 2. Plaintiffs also seek an order equitably tolling the statute of limitations period for all persons terminated during the same time period. Id. ¶ 3. For the second cause of action, plaintiffs seek an injunction preventing defendant from engaging in further acts of discrimination against plaintiffs, an order requiring defendant to reinstate plaintiffs or award plaintiffs front pay, an award of back pay, liquidated damages, and attorney’s fees. Id. at 17, 18.
Defendant moves to dismiss plaintiffs’ first cause of action for violation of the OWBPA. Defendant also moves to dismiss that portion of plaintiffs’ second cause of action that purport to allege a disparate impact discrimination claim for non-group terminations.1
II. ANALYSIS
A. Legal Standard A Rule 12(b)(6) motion tests the legal sufficiency of the claims asserted in the complaint. Dismissal can be based on the “lack of a cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.1988). When evaluating a Rule 12(b)(6) motion, the court must accept all material allegations in the complaint as true and construe them in the light most favorable to the non-moving party. Barron v. Reich, 13 F.3d 1370, 1374 (9th Cir.1994). “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions.” Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007) (citations and edit marks omitted). Moreover, “[f]actual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true.” Id. (citations omitted). The court is not required to accept conclusory legal allegations “cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir.1994).
B. Right to Affirmative Relief Under the OWBPA In 1990, Congress amended section 626 of the ADEA by enacting the OWBPA, which “is designed to protect the rights and benefits of older workers” and “governs the effect under federal law of waivers or releases on ADEA claims.” E.E.O.C. v. UBS Brinson, Inc., 2003 WL 133235, at *3 (S.D.N.Y.2003) (quoting Oubre v. Entergy, 522 U.S. 422, 427 (1998)). Plaintiffs’ complaint seeks declaratory and injunctive relief for defendant’s noncompliance with the OWBPA. Defendant argues that the OWBPA does not establish a right to affirmative relief. Plaintiffs argue that courts have recognized a cause of action under the OWBPA when such a claim is brought in conjunction with discrimination claims under the ADEA because the OWBPA is part of the ADEA.2 Defendant also contends that the text and structure of the OWBPA supports that the OWBPA only sets out terms for the validity of ADEA waivers. Plaintiffs argue that because the OWBPA is an amendment to the ADEA, the ADEA’s general enforcement provision, which existed before the OWBPA, provides for affirmative relief for violations of the OWBPA. The Ninth Circuit has not addressed the issue of whether there is a right to affirmative relief under the OWBPA. Moreover, although several other courts have addressed this issue, courts appear to disagree on whether there is a right to a claim for violation of the OWBPA.
*3 Defendant argues that the text of the OWBPA contains no rights-creating language. Defendant also argues that the
2

Syverson v. International Business Machines Corp., Not Reported in F.Supp.2d (2007)
OWBPA is styled a “Waiver” provision, and thus only provides that non-knowing or involuntary waivers are unenforceable as to ADEA claims. Plaintiffs argue that section 626(c)(1) of the ADEA which provides, “[a]ny person aggrieved may bring a civil action in any court of competent jurisdiction for such legal or equitable relief as may be appropriate to effectuate the purposes of this chapter,” gives rise to a right to relief for violations of the OWBPA. Because the OWBPA is an amendment to the ADEA, and it is part of the same chapter as the quoted section of the ADEA, plaintiffs argue that there is affirmative relief under the OWBPA. Plaintiffs argue that section 626(c)(1) of the ADEA supports affirmative relief under the OWBPA because the OWBPA was “introduced into the code not as a free-standing statute, but as multiple modifications to various existing sections of the ADEA.” See Commonwealth of Massachusetts v. Bull HN Info. Sys., Inc. (“Bull”), 16 F.Supp.2d 90, 105 (D.Mass.1998). Because one purpose of the OWBPA was to protect older workers from signing away their ADEA rights, plaintiffs further contend that it would run contrary to make relief unavailable for violations for the OWBPA. See Krane v. Capital One Servs., Inc., 314 F.Supp.2d 589, 605 (E.D.Va.2004).
Defendant relies on the Tenth Circuit opinion in Whitehead v. Okla. Gas & Electric Co., 187 F.3d 1184 (10th Cir.1999), in arguing that there exists no right to affirmative relief under the OWBPA. In Whitehead, employees sued their employer under the Employee Retirement Income Security Act (“ERISA”), OWBPA, and other federal statutes.3 187 F.3d at 1188. The Tenth Circuit held that dismissal of the OWBPA claim was proper because the employees did not assert a separate ADEA claim. Id. at 1192. The Tenth Circuit held that “[t]he OWBPA simply determines whether an employee has, as a matter of law, waived the right to bring a separate and distinct ADEA claim.” Id. In addition, as defendant argues, courts in different districts have similarly held that the OWBPA does not create an independent cause of action. See, e.g., UBS Brinson, 2003 WL 133235, at *3 (holding that most courts have determined that the OWBPA does not establish age discrimination by itself). In UBS Brinson, the court recognized that “[v]irtually every court that has decided the issue of whether a violation of the OWBPA, by itself, establishes age discrimination has concluded that it does not.” Id. at *3. In Halstead v. American International Group Inc., 2005 WL 885200, at *2 n. 5 (D.Del.2005), the court held that “[b]y its plain terms, the [OWBPA] protects older employees from waiving their rights under the ADEA unknowingly or involuntarily. It does not, however, create an independent right of action.” In Halstead, the plaintiff signed a release form in exchange for $147,000. Id. at *1. The plaintiff argued that the release was invalid because it was executed under duress. Id. at *2. The plaintiff then brought claims under the ADEA and the OWBPA. Id. at *1. The court concluded that the OWBPA “merely establishes minimum requirements for waivers in order to protect employees.” Id. at *2.
*4 Plaintiffs argue that Whitehead is distinguishable because plaintiffs in that case brought a claim for violation of ERISA, and did not allege a violation of the non-OWBPA provisions of the ADEA. Further, plaintiffs argue, in Bull, the district court allowed the state attorney general to proceed with claims under the OWBPA, holding that “the broad enforcement scheme articulated in subsection (c) of section 626 [of the ADEA] covers the waiver requirements articulated in subsection (f) of that section [the OWBPA].” 16 F.Supp.2d at 105. There, plaintiffs filed an age discrimination action claim against defendant Bull HN Information Systems (“Bull”) for violations of the OWBPA and the ADEA. Id. at 94. Bull’s severance plan requiring laid off employees to sign a waiver of rights, including ADEA rights, before receiving severance pay. Id. at 94-95. Under the waiver agreement, employees gave up their right to sue Bull for claims arising out of their employment. Id. at 95. The waiver agreement further provided that employees would be responsible for attorney’s fees, costs, and expenses of defending a claim if they later brought a claim against Bull. Id. Over 50 employees were then laid off pursuant to Bull’s employment termination program. Id. The employees were given the revised release and severance agreement. Id. Bull moved to dismiss the plaintiffs’ action, arguing, inter alia, that plaintiffs failed to state a claim upon which relief was granted. Id. Bull argued that the only remedy provided under section 626(f) of the OWBPA for an invalid waiver agreement was that the waiver agreement was ineffective as a defense in an age discrimination suit. Id. at 105. The district court disagreed with Bull’s reading of the OWBPA, noting that because the waiver agreement held former employees responsible for the costs of defending a suit, the agreement would act as a deterrent to individuals bringing ADEA claims. Id. at 106. The court reasoned that because the agreement would have a chilling effect on employees challenging the validity of the waiver agreement, the consequences of bringing a suit against a valid waiver would be to pay devastating penalties in the form of attorney’s fees and costs of defending the suit. Id.
Although the Bull court’s holdings are supported by policy concerns implicated by the facts of that case, the court finds that defendant’s arguments are supported by the plain text of the OWBPA. The OWBPA provides in relevant part:
(f) Waiver
(1) An individual may not waive any right or claim under this chapter unless the waiver is knowing and voluntary. Except as provided in paragraph (2), a waiver may not be considered knowing and voluntary unless at a minimum-
(A) the waiver is part of an agreement between the individual and the employer that is written in a manner calculated to be
3

Syverson v. International Business Machines Corp., Not Reported in F.Supp.2d (2007)
understood by such individual, or by the average individual eligible to participate;
*5 * * *
(3) In any dispute that may arise over whether any of the requirements, conditions, and circumstances set forth in subparagraph (A), (B), (C), (D), (E), (F), (G), or (H) of paragraph (1), or subparagraph (A) or (B) of paragraph (2), have been met, the party asserting the validity of a waiver shall have the burden of proving in a court of competent jurisdiction that a waiver was knowing and voluntary pursuant to paragraph (1) or (2).
(4) No waiver agreement may affect the Commission’s rights and responsibilities to enforce this chapter. No waiver may be used to justify interfering with the protected right of an employee to file a charge or participate in an investigation or proceeding conducted by the Commission.
29 U.S.C. § 626(f). As defendant argues, the plain text of the OWBPA does not contain any rights-creating language. Nothing in section 626(f) suggests that the provision on release requirements gives any equitable rights other than voiding the release. Plaintiffs’ argument that section 626(b) provides broad relief for violations of the ADEA does not change the express text of the OWBPA, which does not provide for such affirmative relief. The plain text of the OWBPA is consistent with those cases holding that the OWBPA only sets out the terms of an effective waiver and does not create an independent cause of action. See, e.g., Halstead, 2005 WL 885200, at *2; UBS Brinson, 2003 WL 133235, at *3. In particular, the Whitehead court specifically noted that dismissal of the suit was proper because an action under the OWBPA, by itself, could not give rise to a claim. As the Tenth Circuit held, based on its plain text, the OWBPA only sets out the requirements for a waiver of ADEA claims. Whitehead, 187 F.3d at 1191-1192 (“This language strongly indicates that the OWBPA simply determines whether an employee has, as a matter of law, waived the right to bring a separate and distinct ADEA claim.”).
Moreover, unlike in Bull, the waiver at issue here does not make plaintiffs responsible for attorney’s fees and expenses of defending against a suit brought under the ADEA. Here, because the Ninth Circuit has already held the Release to be invalid, defendant’s continued use of the Release would be contrary to the purpose of the OWBPA. Defendant also represented at oral argument on the motion that it has ceased using the defective waiver. Therefore, since defendant can no longer lawfully use and is not currently using the Release, the Bull court’s concern that an agreement would have a chilling effect on employees bringing claims under the ADEA is not implicated here.4
In sum, the court concludes that the OWBPA, by its plain terms, does not create an independent cause of action. Therefore, the court grants defendant’s motion to dismiss plaintiffs’ OWBPA claim with prejudice.
C. Individual Terminations Defendant also moves to dismiss those parts of plaintiffs’ second cause of action asserting a claim for relief on a theory of disparate impact age discrimination with respect to individual terminations. Defendant argues that plaintiffs fail to identify the specific employment practice that purportedly caused a disparate impact on older workers who were individually terminated. Plaintiffs argue that they have stated a claim with enough specificity to survive a motion to dismiss.
*6 In order to establish a prima facie case of disparate impact, plaintiff must: “(1) identify the specific employment practices or selection criteria being challenged; (2) show disparate impact; and (3) prove causation.” Rose v. Wells Fargo & Co., 902 F.2d 1417, 1424 (9th Cir.1990) (citing Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994 (1988)). To state a claim for disparate impact under the ADEA, a plaintiff is responsible for identifying the specific employment practice that led to the statistical disparities. Smith v. City of Jackson, 544 U.S. 228, 241 (2005). In Smith, the Supreme Court considered a police officer pay plan that was relatively less generous to older workers than to younger workers.5 Id. at 241-42. A higher percentage of police officers under 40 received raises greater than 10% than police officers over the age of 40. Id. at 242. Nevertheless, the Supreme Court held that plaintiffs’ claim failed to allege sufficient facts to support a disparate impact claim under the ADEA because they did not identify any specific test, requirement, or practice within the pay plan that has an adverse impact on older workers. Id. at 241. The court reasoned that the failure to identify the specific practice being challenged is an omission that could lead to employers being liable for many innocent causes that may lead to statistical imbalances. Id.
Here, plaintiffs’ allegations that defendant engaged in a pattern or practice of age discrimination by treating older employees less favorably than younger employees are vague and conclusory. In Rose, the Ninth Circuit held that employment decisions left up to the subjective discretion of a company’s managers are subject to disparate impact analysis. 902 F.2d at 1424-25. In
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Syverson v. International Business Machines Corp., Not Reported in F.Supp.2d (2007)
the present case, plaintiffs do not name who made the employment decisions with regard to individual terminations. Plaintiffs also fail to name the specific times, places, and people involved in the individual termination decisions and fail to identify the specific employment practices relevant to the decisions. Moreover, plaintiffs have also failed to allege facts supporting a conclusion that a specific employment practice has caused a disparate impact on ADEA protected workers. Thus, plaintiffs do not sufficiently plead a claim for relief on a theory of disparate impact age discrimination with respect to individual terminations.
Nevertheless, dismissal with prejudice is not warranted. Plaintiffs may be able to amend their complaint to cure these deficiencies. See Fed.R.Civ.P. 15; Foman v. Davis, 371 U .S. 178, 182 (1962) (“Rule 15(a) declares that leave to amend shall be ‘freely given when justice so requires’; this mandate is to be heeded.”).6

III. ORDER
For the foregoing reasons, the court grants defendant’s motion to dismiss plaintiffs’ first claim with prejudice and grants defendant’s motion to dismiss those parts of plaintiffs’ second claim asserting disparate impact age discrimination with respect to individualized terminations with twenty days’ leave to amend.

Parallel Citations

101 Fair Empl.Prac.Cas. (BNA) 1273, 90 Empl. Prac. Dec. P 42,968

Footnotes

1

Defendant does not move to dismiss plaintiffs’ disparate impact discrimination claim with regard to the group terminations.

2

The parties do not dispute that the OWBPA is an amendment to the ADEA.

3

The employees also brought claims under the Veterans’ Reemployment Rights Act and the Pregnancy Discrimination Act.

4

Plaintiffs also rely upon Krane for the proposition that they can assert an OWBPA claim for declaratory and injunctive relief. In

Krane, the district court followed the Bull court’s reasoning and concluded that

[t]aken together, the relevant authorities, viewed in perspective of the statutory text and the statutory scheme involved, lead to

the conclusion that, under section 626(c), an employee can seek declaratory and injunctive relief for a violation of the

OWBPA provisions respecting waivers found in section 626(f).

However, the court also held that “a violation of section 626(f), standing alone, or without an accompanying ADEA age

discrimination claim, is not viable because there is no monetary damage that can flow simply from a violation of the waiver

provisions in section 626(f).” Id. Krane is not applicable here since, as noted above, the Release cannot be lawfully used and

defendant has represented that it will no longer use the Release.

5

The police officer pay plan gave raises to all police officers in an attempt to keep their salaries competitive with the surrounding

region. Smith, 544 U.S. at 242.

6

Plaintiffs appear to seek limited discovery prior to filing an amended complaint. The court denies plaintiffs’ request. “The purpose

of [Fed.R.Civ.P.] 12(b)(6) is to enable defendants to challenge the legal sufficiency of complaints without subjecting themselves to

discovery.” See Rutman Wine Co. v. E. & J. Gallo Winery, 829 F.2d 729, 738 (9th Cir.1987) (citation omitted).

5

 
 Syverson v. IBM
United States District Court for the Northern District of California, San Jose Division May 4, 2004, Decided ; May 4, 2004, Filed
No. C-03-04529 RMW, [Re: Docket Nos. 31 and 39]

Reporter: 2004 U.S. Dist. LEXIS 27844

WILLIAM SYVERSON, RUTH ALICE BOYD, DALE

CAHILL, JACK FRIEDMAN, PAUL GROMKOWSKI,

SYLVIA JONES, ROLF MARSH, WALTER MASLAK,

JAMES PAYNE and ANTONIO RIVERA, individually and

on behalf of others similarly situated, Plaintiffs, v.

INTERNATIONAL

BUSINESS

MACHINES

CORPORATION, Defendant.

Subsequent History: Reversed by, Remanded by, Vacated by Syverson v. IBM, 461 F.3d 1147, 2006 U.S. App. LEXIS 22504 (9th Cir. Cal., 2006) Reversed by, Remanded by Syverson v. IBM, 472 F.3d 1072, 2007 U.S. App. LEXIS 16 (9th Cir. Cal., Jan. 3, 2007)

Counsel: [*1] For William Syverson, individually, and on behalf of others similarly situated, Ruth Alice Boyd, individually, and on behalf of others similarly situated, Dale Cahill, individuallfy, and on behalf of others similarily situated, Jack Friedman, individually, and on behalf of others similarly situated, Paul Gromkowski, individually, and on behalf of others similarly situated, Sylvia Jones, individually, and on behalf of others similarly situated, Ralph Marsh, individually, and on behalf of others similarily situated, Walter Maslak, individually, and on behalf of others similarly situated, James Payne, Individually, and on behalf of others similarly situated, Antonio Rivera, individually, and on behalf of others similarly situated, Plaintiffs: Jeffrey Neil Young, Patrick McTeague, McTeague Higbee Case Cohen Whitney & Tok, Topsham, ME; Robert E. Jesinger, Wylie McBride Jesinger Platten & Renner, San Jose, CA.

For International Business Machines Corporation, Defendant: Jeffrey D. Wohl, Kerri N. Harper, Paul, Hastings, Janofsky & Walker LLP, San Francisco, CA.

behalf of others similarly situated, Paul Gromkowski, individually, and on behalf of others similarly situated, Sylvia Jones, individually, and on behalf of others similarly situated, Ralph Marsh, individually, and on behalf of others similarily situated, Walter Maslak, individually, and on behalf of others similarly situated, James Payne, Individually, and on behalf of others similarly situated, Antonio Rivera, individually, and on behalf of others similarly situated, William Syverson, individually, and on behalf of others similarly situated, Counter-defendants: Jeffrey Neil Young, McTeague Higbee Case Cohen Whitney & Tok, Topsham, ME.
Judges: RONALD M. WHYTE, United States District Judge.
Opinion by: RONALD M. WHYTE
Opinion
ORDER GRANTING DEFENDANTS MOTION TO DISMISS PLAINTIFFS' FIRST AMENDED COMPLAINT AND DENYING WITHOUT PREJUDICE PLAINTIFFS' MOTION TO DISMISS DEFENDANT'S COUNTERCLAIM
Defendant International Business Machines Corporation ("IBM") moves to dismiss plaintiff's' first amended [*3] complaint, and plaintiffs move to dismiss IBM's counterclaim. The motions were heard on April 30, 2004. The court has read the moving and responding papers and heard the argument of counsel. For the reasons set forth below, the court GRANTS defendant's motion to dismiss and DENIES without prejudice plaintiffs' motion to dismiss.
I. BACKGROUND

For International Business Machines Corporation, Counterclaimant: Jeffrey D. Wohl, Paul, Hastings, Janofsky & Walker LLP, [*2] San Francisco, CA.
For Ruth Alice Boyd, individually, and on behalf of others similarly situated, Dale Cahill, individuallfy, and on behalf of others similarily situated, Jack Friedman, individually, and on

Between January 2001 and June 2002, IBM terminated the employment of numerous employees across various offices. 1 Upon notice of employment termination, IBM offered each employee severance pay and benefits in exchange for signing a document entitled "MICROELECTRONICS RESOURCE ACTION (MERA) GENERAL RELEASE AND COVENANT NOT TO SUE" ("waiver"). First Am. Compl. ("FAC") Ex.'s L,

1 Defendant IBM is incorporated under the laws of the State of New York, with its principal place of business in the State of New York. IBM also has offices operating in Tucson, Arizona; San Jose, California; Boulder, Colorado; Atlanta, Georgia; Armonk,

2004 U.S. Dist. LEXIS 27844, *3

Page 2 of 5

M. 2 The document also states in the header that "YOU ARE EEOC then issued right-to-sue letters to plaintiffs Syverson,

ADVISED TO CONSULT AN ATTORNEY BEFORE YOU Rivera, Marsh, Cahill, Gromkowski and Maslak. FAC Ex.'s

SIGN THIS RELEASE." Id.

F-K.

In conjunction with the offered waiver, and before the affected employee was asked to sign the waiver, IBM provided to each affected employee a 50-page document entitled "Microelectronics Division Resource Action Employee Information Package" ("Information Package"). FAC PP 8(a), (d). This document contains a list of job titles, ages, and numbers of individuals selected and not selected for layoff in IBM's Worldwide Semiconductor Manufacturing, Global Services, Business Consulting Services and other IBM units. 3 Plaintiffs claim that the termination trends in the Information Package reflect IBM's discriminatory termination policy based on age. For example, plaintiffs contend that a significant fact indicating employment discrimination based on age is that the "percent laid off is 25%, 32%, 48%, and 67% for those 46-50, 51-55, 56-60, and 61-65." FAC P 8(a). Each plaintiff signed the waiver [*5] and received added severance pay and benefits in exchange. Plaintiffs assert that, faced with unemployment, they were under economic duress to sign the waiver and receive the added benefits.

On October 7, 2003, plaintiffs filed this action 5 on behalf of themselves and other similarly situated employees. 6 Plaintiffs allege that IBM discriminated on the basis of age when terminating plaintiffs, violating [*7] the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621; the Older Workers Benefit Protection Act ("OWBPA"), 29 U.S.C. § 626(f)(1); and the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001.
On February 12, 2004 IBM filed a counterclaim seeking costs and expenses incurred while defending this suit. IBM bases its claim on the waiver, which includes a covenant not to sue for claims other than under the ADEA. IBM now files this motion to dismiss plaintiffs' first amended complaint, and plaintiffs file a motion to dismiss defendant's counterclaim. The parties dispute whether the waiver satisfies the statutory requirements of the OWBPA, ADEA and ERISA.
II. ANALYSIS

Plaintiffs Syverson, Rivera, Marsh, Cahill, Gromkowski and Maslak subsequently filed charges of age discrimination with various state attorneys general and the Equal Employment Opportunity Commission (EEOC). 4 The EEOC dismissed plaintiffs' charges on the merits, finding that the signed release and covenant not to sue waived any claims of age discrimination. FAC at 6. In plaintiff Cahill's action, for example, the EEOC found that the waiver "met the Older Workers Benefit Protection Act (OWBPA) criteria and was not the product of economic duress[,]" and "met the requirements of the OWBPA's knowing and voluntary' standard and [was] not in violation of the statute." FAC Ex. I at 1 (Letter [*6] of 7/16/03 from EEOC to Cahill); see also, e.g., FAC Ex. F at 1-2 (Letter of 7/9/03 from EEOC to Syverson). The

A. OWBPA
Congress amended the ADEA in 1990 [*8] by passing the OWBPA. Oubre v. Entergy Operations, Inc., 522 U.S. 422, 426, 139 L. Ed. 2d 849, 118 S. Ct. 838 (1998). "The OWBPA sets up its own regime for assessing the effect of ADEA waivers, separate and apart from contract law. The statute creates a series of prerequisites for knowing and voluntary waivers and imposes affirmative duties of disclosure and waiting periods." Id. at 426. "The Older Workers Benefit Protection Act (OWBPA) imposes specific requirements for releases covering ADEA claims." Id. at 424 (citing OWBPA § 201, 29 U.S.C. §§ 626(f)(1)(B), (F), (G)). As the party asserting validity of the waiver, IBM has the burden of proving that the waiver

East Fishkill, Endicott, Poughkeepsie, Somers and Yorktown Heights, New York; Charlotte and Research Triangle Park, North Carolina; Beaverton and Portland, Oregon; Austin, Texas; and Essex Junction, Vermont. FAC P 6.
2 Ex. L is an example of an earlier waiver provided to affected employees, and Ex. M is an example of a later waiver. The differences between the two waivers are not significant for purposes of this motion.
3 Plaintiffs claim that the termination trends in the Information Package reflect IBM's discriminatory termination policy based on age.
4 Syverson filed with the Vermont Office of the Attorney General and the EEOC on October 23, 2002, Rivera filed with the EEOC on February 3, 2003, Marsh filed with the New York State Division of Human Rights and the EEOC on July 8, 2003 and Cahill filed with the Vermont Office of the Attorney General and the EEOC on September 3, 2002. See FAC at 3-5 Ex.'s B, C, D, and E. The other named plaintiffs allegedly filed charges of age discrimination with the EEOC and the State Fair Employment Practices Agency in the state they where they were employed. FAC at 5.
5 Plaintiffs filed a first amended complaint on December 19, 2003.
6 For purposes of this motion, and as there has been no class certification, only the named plaintiffs' claims are addressed.

2004 U.S. Dist. LEXIS 27844, *8

Page 3 of 5

was "knowing and voluntary" pursuant to 29 U.S.C. §§

626(f)(1)-(2). See29 U.S.C. § 626(f)(3).

In exchange for the sums and benefits received . . .

A waiver may not be knowing and voluntary under the OWBPA unless at a minimum: (A) it is part of an agreement between the individual and employer and is written and calculated to be understandable; (B) the waiver specifically refers to rights or claims arising under the ADEA; (C) there is no waiver of future rights or claims; (D) the consideration [*9] provided is in addition to anything to which the individual is already entitled; (E) the individual is advised in writing to consult an attorney prior to signing the agreement; (F) the individual is given at least a 21 day period to consider the agreement; and (G) the individual is given at least a 7 day revocation period following execution of the agreement. 29 U.S.C. § 626(f)(1)(A)-(G). In addition, if the waiver is requested in connection with an employment termination program offered to a group or class of employees, the individual must be given a period of at least 45 days to consider the agreement, and must be provided with understandable information as to: (i) any class, unit, or group of individuals covered by the program, eligibility factors, and time limits; (ii) job titles and age of all individuals selected for the program, and the ages of all individuals in the same

[name] (hereinafter "you") agrees to release and hereby does release International Business Machines Corporation . . . from all claims, demands, actions or liabilities you have against IBM of whatever kind including, but not limited to, those that are related to your employment with IBM, the termination of that employment, or other severance payments. . . . You also agree that this Release covers, but is not limited to, claims from [*11] the Age Discrimination in Employment Act of 1967, as amended, Title VII of the Civil Rights Act of 1964, as amended, the Worker Adjustment and Retraining Notification Act, and any other federal, state or local law dealing with discrimination in employment including, but not limited to, discrimination based on sex, sexual orientation, race, national origin, religion, disability, veteran status or age, and claims for attorneys' fees. You also agree that this Release includes, but is not limited to, claims based on theories of contract or tort, whether based on common law or otherwise.FAC Ex. M at 1. 7

job classification or organizational unit who were not eligible Page 2 of the waiver notes that "this Release does not prevent

or selected for the program. 29 U.S.C. § 626(f)(1)(H). It is you from enforcing your non-forfeitable rights to your

undisputed that (B) -- (H) are met. Plaintiffs contest only the accrued benefits . . . which are not released hereby but survive

first requirement, that the waiver is written in language unaffected by this document." FAC Ex.'s L, M at 2.

calculated to be [*10] understood by the average individual.

Pl.'s Opp. to Def.'s Countercl. ("Pl.'s Opp.") at 7; see29 U.S.C. The last paragraph on page 2 of the waiver [*12] includes a

§ 626(f)(1)(A).

covenant not to sue. It provides that the signatory "will never

institute a claim of any kind against IBM [] including, but not

Plaintiffs assert that by renaming both the General Release limited to, claims related to your employment with IBM or

and Covenant Not to Sue as a "Release," the waiver conflates the termination of that employment or other severance

the separate sections in the document addressing each payments or your eligibility for participation in the retirement

provision. Specifically, page 2 of the waiver states that "this bridge." Id. The paragraph further provides that IBM is

covenant not to sue does not apply to actions based solely entitled to attorney's fees and costs incurred by defendant

under the Age Discrimination in Employment Act of 1967, as against any suit brought in violation of the covenant not to

amended." Waiver at 2. Plaintiffs apparently contend that this sue. However, "this covenant not to sue does not apply to

combination of statements misled them into believing that actions based solely under the Age Discrimination in

their ADEA claims were preserved. Pl.'s Opp. at 8-9.

Employment Act of 1967, as amended." Id.8 Plaintiffs argue

The waiver provides:

that the language of the covenant not to sue, combined with the language of the release, makes the waiver contradictory

and confusing. IBM asserts that this

7 The first waiver does not specifically reference the Worker Adjustment and Retraining Notification Act. See FAC Ex. L at 1.
8
You agree that you will never institute a claim of any kind against IBM, or those associated with IBM including, but not limited to, claims related to your employment with IBM or the termination of that employment or other severance payments or your eligibility for participation in the Retirement Bridge Leave of Absence. If you violate this covenant not to sue by suing IBM or those associated with IBM, you agree that you will pay all costs and expenses

2004 U.S. Dist. LEXIS 27844, *12

Page 4 of 5

provision was necessary to comply with the EEOC's mandate that an employee suing under the ADEA may not be held liable for damages in breach of a covenant not to sue. Reply Supp. Def.'s Mot. Dismiss FAC at 5 (citing 29 C.F.R. § 1625.23(b)).

Plaintiff asserts, alternatively, that IBM's waiver constitutes a contract of adhesion that is unconscionable and thus unenforceable. Pl.'s Opp. at 11. "Generally speaking, there are two judicially imposed limitations on the enforcement of adhesion contracts or provisions thereof. The first is that such

[*13] Although plaintiffs take issue with the language of the a contract or provision which does not fall within the

waiver, the court is satisfied that this language is written in a reasonable expectations of the weaker or adhering' party will

manner calculated to be understood by an average individual not be enforced against [*15] him. [Citations omitted.] The

selected by IBM for employment termination. See Thomforde second -- a principle of equity applicable to all contracts

v. IBM, 304 F. Supp. 2d 1143, 1144 (D. Minn. 2004). The generally -- is that a contract or provision, even if consistent

language of the waiver releases all forfeitable claims arising with the reasonable expectations of the parties, will be denied

under the ADEA, but does not release rights for benefits that enforcement if, considered in its context, it is unduly

have already accrued. Additionally, the waiver provides for oppressive or unconscionable.'" Armendariz v. Foundation

recovery of fees and costs incurred by IBM in the event a Health Psychcare Services, Inc., 24 Cal. 4th 83, 113, 99 Cal.

previously waived claim is brought, but does not provide for Rptr. 2d 745, 6 P.3d 669 (2000) (citing Graham v. Scissor-

fees and costs incurred by IBM if a claim is brought under the Tail, Inc., 28 Cal. 3d 807, 820, 171 Cal. Rptr. 604, 623 P.2d

ADEA. In other words, although IBM may not recover fees 165 (1990)). Plaintiffs' allegations, taken as true, do not show

and costs if a claim is brought under the ADEA, IBM may that the parties' reasonable expectations were not met, or that

still defend against any ADEA claim by asserting that it was the waiver was unduly oppressive or unconscionable.

previously waived. To the extent the language of the waiver requires clarification, the waiver explicitly advises affected C.ERISA

employees to consult an attorney, their manager, the MERA

Project Office or Human Resources prior to signing.

Plaintiffs assert that notwithstanding the waiver of any ADEA

claims, their ERISA claims survive. In Chaplin v.

Plaintiffs also contend that IBM fails to inform employees NationsCredit Corp., the parties disagreed over whether that the filing of a charge of age discrimination with [*14] the language in a release must specifically mention ERISA claims EEOC does not constitute the filing of litigation in violation to cover them. 307 F.3d 368, 372 (5th Cir. 2002). 9 Applying

of the covenant not to sue, and that such a finding may result federal common law, and finding no statutory basis for

in determinations legally binding on IBM. Pl's Opp. at 10. In requiring specific mention of ERISA claims in a release, the contrast, any suit filed in court could be deemed to violate the Chaplin court noted that "public policy favors voluntary covenant. Id. As discussed above, filing an ADEA claim does settlement of claims and enforcement [*16] of releases[,]

not violate IBM's covenant not to sue, but IBM may raise a (citation omitted)" and "it would be an odd public policy that

defense that any claim under the ADEA has been knowingly favored settlements and releases, but then forced employers to

and voluntarily waived. The court is not convinced that either 29 C.F.R. § 1625.22(a) or § 1625.22(b)(4) requires an employer to inform an employee of the right to file a claim with the EEOC pursuant to 29 U.S.C. § 626(d).

scour the United States Code and the state statutes and reports to identify every possible cause of action." Id. at 373; see also Stroman v. West Coast Grocery Co., 884 F.2d 458, 461 (9th Cir. 1989) (in Title VII action, "an agreement need not specifically recite the particular claims waived in order to be

B. Contract

effective."). Thus, specific mention of ERISA claims is not

required for IBM's release of any such claims to be valid and

enforceable.

of defending against the suit incurred by IBM or those associated with IBM, including reasonable attorneys' fees, and all further costs and fees, including attorneys' fees, incurred in connection with collection. This covenant not to sue does not apply to actions based solely under the Age Discrimination in Employment Act of 1967 as amended. That means if you were to sue IBM or those associated with IBM only under the Age Discrimination in Employment Act of 1967, as amended, you would not be liable under the terms of this Release for their attorneys' fees and costs and expenses of defending against a suit. This Release does not preclude filing a charge with the U.S. Equal Employment Opportunity Commission.FAC Ex. L at 2, Ex. M. at 2.
9 "[Plaintiffs] hereby agree to release [NationsCredit] from any and all claims, suits, demands, or other causes of action of any kind . . . arising at any time in the unlimited past . . . [including] all claims arising by reason of or in any way connected with [plaintiffs'] employment relationship with NCDF." Chaplin, 307 F.3d at 372.

2004 U.S. Dist. LEXIS 27844, *16

Page 5 of 5

Both parties agree, however, that the waiver [*17] does not

give up accrued ERISA benefits or prevent plaintiffs from D. Dismissal of counterclaim

enforcing such nonforfeitable rights under the following

provision:

Both parties agree that under the covenant not to [*18] sue

IBM may not recover costs and attorney's fees for actions

This Release does not prevent you from enforcing your nonforfeitable rights to your accrued benefits (within the meaning of §§ 203 and 204 of the Employee Retirement Income Security Act of 1974 as amended), as of the date of termination of your IBM employment, under the IBM personal pension plan or the IBM retirement plan as applicable and the

brought by plaintiffs pursuant to the ADEA. Plaintiffs do not argue, however, that their claims for relief are brought only pursuant to the ADEA, but rather that their ERISA claims are inextricably intertwined with the ADEA claims. The court is not convinced that, at least for purposes of costs and attorney's fees, the ERISA claim may not be reasonably separated from plaintiffs' ADEA claims.

IBM PDSP 401(K) which are not release hereby but survive unaffected by this document.FAC Ex.'s L, M

III. ORDER

at 2; Pl.'s Opp. at 12; Def.'s Opp. Pl.'s Mot. Dismiss Countercl. at 3. Thus, to the extent plaintiffs can assert claims for their nonforfeitable rights, those claims are not barred by the release.

For the foregoing reasons, the court GRANTS defendant's motion to dismiss with prejudice, and DENIES without prejudice plaintiffs' motion to dismiss defendant's counterclaim. The parties are to contact the courtroom deputy,

D.Leave to amend

Jackie Garcia, (408) 535-5375, to arrange a telephone case management conference.

Under Rule 15(a), leave to amend a pleading shall be freely granted when justice so requires. FED. R. CIV. P. 15(a). However, since any amendment against IBM would be futile, the court dismisses plaintiffs' First Amended Complaint with prejudice.

DATED: May 4, 2004 RONALD M. WHYTE United States District Judge

 
 Case: 5:03-cv-04529-RMW As of: 07/18/2010 08:39 AM PDT 1 of 35
ADRMOP, CLOSED, E−Filing
U.S. District Court California Northern District (San Jose) CIVIL DOCKET FOR CASE #: 5:03−cv−04529−RMW

Syverson et al v. International Business Machines Corporation Assigned to: Hon. Ronald M. Whyte Referred to: Magistrate Judge Patricia V. Trumbull Case in other court: Ninth Circuit, 04−16218
Ninth Circuit, 04−16449 Cause: 29:621 Job Discrimination (Age)
Plaintiff

Date Filed: 10/07/2003 Date Terminated: 01/29/2009 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

William Syverson individually, and on behalf of others similarly situated

represented by Jeffrey Neil Young McTeague Higbee Case Cohen Whitney &Tok Post Office Box 5000 Topsham, ME 04086 207/725−5581 Fax: 207−725−1090 Email: jyoung@me−legal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Patrick McTeague McTeague Higbee Case Cohen Whitney &Tok Post Office Box 5000 Topsham, ME 04086 207−725−5581 Fax: 207−725−1090 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert E. Jesinger Operating Engineers Local Union No. 3 1620 South Loop Road Alameda, CA 94502 510.748.7400 Fax: 408.748.7412 Email: rjesinger@oe3.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher Eugene Platten Wylie McBride Jesinger Platten &Renner 2125 Canoas Garden Avenue Suite 120 San Jose, CA 95125 408.979.2920 Fax: 408.979.2934 Email: cplatten@wmjpr.com ATTORNEY TO BE NOTICED

Heather Marie Mills Goldstein, Demchak, et al. 300 Lakeside Dr., Ste. 1000 Oakland, CA 94612 510−763−9800 Fax: 510−835−1417 Email: hmills@gdblegal.com ATTORNEY TO BE NOTICED

Morris J. Baller

Case: 5:03-cv-04529-RMW As of: 07/18/2010 08:39 AM PDT 2 of 35

Goldstein, Demchak, Baller, Borgen &Dardarian 300 Lakeside Drive, Suite 1000 Oakland, CA 94612 (510) 763−9800 Fax: (510) 835−1417 Email: mjb@gdblegal.com ATTORNEY TO BE NOTICED

Rachel Elizabeth Brill Goldstein Demchak Baller Borgen &Dardarian 300 Lakeside Drive, Suite 1000 Oakland, CA 94612 (510) 763−9800 Fax: (510) 835−1417 Email: rbrill@gdblegal.com ATTORNEY TO BE NOTICED

Teresa Demchak Goldstein, Demchak, Baller, Borgen &Dardarian 300 Lakeside Drive, Suite 1000 Oakland, CA 94612 (510) 763−9800 Fax: (510) 835−1417 Email: dem@gdblegal.com ATTORNEY TO BE NOTICED

Plaintiff
Ruth Alice Boyd individually, and on behalf of others similarly situated

represented by Jeffrey Neil Young (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Patrick McTeague (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert E. Jesinger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Heather Marie Mills (See above for address) ATTORNEY TO BE NOTICED

Morris J. Baller (See above for address) ATTORNEY TO BE NOTICED

Teresa Demchak (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Dale Cahill individuallfy, and on behalf of others similarily situated

represented by Jeffrey Neil Young (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Patrick McTeague

Case: 5:03-cv-04529-RMW As of: 07/18/2010 08:39 AM PDT 3 of 35

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert E. Jesinger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Heather Marie Mills (See above for address) ATTORNEY TO BE NOTICED

Morris J. Baller (See above for address) ATTORNEY TO BE NOTICED

Teresa Demchak (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Jack Friedman individually, and on behalf of others similarly situated

represented by Jeffrey Neil Young (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Patrick McTeague (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert E. Jesinger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Heather Marie Mills (See above for address) ATTORNEY TO BE NOTICED

Morris J. Baller (See above for address) ATTORNEY TO BE NOTICED

Teresa Demchak (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Paul Gromkowski individually, and on behalf of others similarly situated

represented by Jeffrey Neil Young (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Patrick McTeague (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert E. Jesinger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 5:03-cv-04529-RMW As of: 07/18/2010 08:39 AM PDT 4 of 35

Plaintiff Sylvia Jones individually, and on behalf of others similarly situated
Plaintiff Ralph Marsh individually, and on behalf of others similarily situated

Heather Marie Mills (See above for address) ATTORNEY TO BE NOTICED
Morris J. Baller (See above for address) ATTORNEY TO BE NOTICED
Teresa Demchak (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey Neil Young (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patrick McTeague (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert E. Jesinger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Heather Marie Mills (See above for address) ATTORNEY TO BE NOTICED
Morris J. Baller (See above for address) ATTORNEY TO BE NOTICED
Teresa Demchak (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey Neil Young (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patrick McTeague (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert E. Jesinger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Heather Marie Mills (See above for address) ATTORNEY TO BE NOTICED
Morris J. Baller (See above for address) ATTORNEY TO BE NOTICED

Case: 5:03-cv-04529-RMW As of: 07/18/2010 08:39 AM PDT 5 of 35

Plaintiff Walter Maslak individually, and on behalf of others similarly situated
Plaintiff James Payne Individually, and on behalf of others similarly situated
Plaintiff

Teresa Demchak (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey Neil Young (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patrick McTeague (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert E. Jesinger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Heather Marie Mills (See above for address) ATTORNEY TO BE NOTICED
Morris J. Baller (See above for address) ATTORNEY TO BE NOTICED
Teresa Demchak (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey Neil Young (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patrick McTeague (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert E. Jesinger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Heather Marie Mills (See above for address) ATTORNEY TO BE NOTICED
Morris J. Baller (See above for address) ATTORNEY TO BE NOTICED
Teresa Demchak (See above for address) ATTORNEY TO BE NOTICED
represented by

Case: 5:03-cv-04529-RMW As of: 07/18/2010 08:39 AM PDT 6 of 35

Antonio Rivera individually, and on behalf of others similarly situated

Jeffrey Neil Young (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Patrick McTeague (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert E. Jesinger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Heather Marie Mills (See above for address) ATTORNEY TO BE NOTICED

Morris J. Baller (See above for address) ATTORNEY TO BE NOTICED

Teresa Demchak (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
International Business Machines Corporation

represented by Aaron L. Agenbroad Jones Day 555 California Street, 26th Floor San Francisco, CA 94104 (415) 626−3939 Fax: (415) 875−5700 Email: alagenbroad@jonesday.com ATTORNEY TO BE NOTICED
Alison B. Marshall 51 Louisiana Avenue, N.W. Washington, DC 20001−2113 202−879−7611 Email: abmarshall@jonesday.com ATTORNEY TO BE NOTICED
Brian M. Jorgensen 272 N. Harwood Street Dallas, TX 75201−1515 214−220−3939 PRO HAC VICE ATTORNEY TO BE NOTICED
Carter DeLorme 51 Louisiana Avenue, N.W. Washington, DC 20001−2113 202−879−3939 PRO HAC VICE ATTORNEY TO BE NOTICED
Catherine Suzanne Nasser Jones Day 555 California Street 26th Floor

Case: 5:03-cv-04529-RMW As of: 07/18/2010 08:39 AM PDT 7 of 35
San Francisco, CA 94104 415−626−3939 Fax: 415−875−5700 Email: cnasser@jonesday.com ATTORNEY TO BE NOTICED
Deborah Ann Sudbury Jones Day Reavis &Pogue 1420 Peachtree St NE suite 800 Atlanta, GA 30309−3053 404−521−3939 PRO HAC VICE ATTORNEY TO BE NOTICED
Glen D. Nager Jones Day Reavis &Pogue 51 Louisiana Ave NW Washington, DC 20001−2113 202−879−3939 ATTORNEY TO BE NOTICED
Hannah M. Breshin 51 Louisiana Avenue, N.W. Washington, DC 20001−2113 202−879−3939 PRO HAC VICE ATTORNEY TO BE NOTICED
James E. Gauch Attorney at Law 51 Louisiana Avenue, N.W. Washington, DC 20001−2113 202−879−3939 PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah B. McClure 51 Louisiana Avenue, N.W. Washington, DC 20001−2113 202−879−3939 PRO HAC VICE ATTORNEY TO BE NOTICED
Tonya M. Osborne 51 Louisiana Avenue, N.W. Washington, DC 20001−2113 202−879−3939 PRO HAC VICE ATTORNEY TO BE NOTICED
Traci Lovitt , 222 East 41st Street New York, NY 10017−6702 212−326−3852 Fax: Email: tlovitt@jonesday.com ATTORNEY TO BE NOTICED
Jeffrey David Wohl Paul, Hastings, Janofsky &Walker LLP 55 Second Street San Francisco, CA 94105−3441 415−856−7000 Fax: 415−856−7100

Case: 5:03-cv-04529-RMW As of: 07/18/2010 08:39 AM PDT 8 of 35

Email: jeffwohl@paulhastings.com ATTORNEY TO BE NOTICED

Kerri N. Harper Paul, Hastings, Janofsky &Walker LLP 55 Second Street, Suite 2400 San Francisco, CA 94105−3441 (415) 856−7000 Fax: (415) 856−7100 Email: kerriharper@paulhastings.com ATTORNEY TO BE NOTICED

Counter−claimant
International Business Machines Corporation

represented by Aaron L. Agenbroad (See above for address) ATTORNEY TO BE NOTICED

Alison B. Marshall (See above for address) ATTORNEY TO BE NOTICED

Brian M. Jorgensen (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Carter DeLorme (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Deborah Ann Sudbury (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Glen D. Nager (See above for address) ATTORNEY TO BE NOTICED

Hannah M. Breshin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

James E. Gauch (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Sarah B. McClure (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Tonya M. Osborne (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Traci Lovitt , (See above for address) ATTORNEY TO BE NOTICED

Case: 5:03-cv-04529-RMW As of: 07/18/2010 08:39 AM PDT 9 of 35
Jeffrey David Wohl (See above for address) ATTORNEY TO BE NOTICED

V. Counter−defendant Ruth Alice Boyd individually, and on behalf of others similarly situated
Counter−defendant Dale Cahill individuallfy, and on behalf of others similarily situated
Counter−defendant Jack Friedman individually, and on behalf of others similarly situated
Counter−defendant Paul Gromkowski individually, and on behalf of others similarly situated

represented by Heather Marie Mills (See above for address) ATTORNEY TO BE NOTICED
Morris J. Baller (See above for address) ATTORNEY TO BE NOTICED
Teresa Demchak (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Neil Young (See above for address) ATTORNEY TO BE NOTICED
represented by Heather Marie Mills (See above for address) ATTORNEY TO BE NOTICED
Morris J. Baller (See above for address) ATTORNEY TO BE NOTICED
Teresa Demchak (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Neil Young (See above for address) ATTORNEY TO BE NOTICED
represented by Heather Marie Mills (See above for address) ATTORNEY TO BE NOTICED
Morris J. Baller (See above for address) ATTORNEY TO BE NOTICED
Teresa Demchak (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Neil Young (See above for address) ATTORNEY TO BE NOTICED
represented by Heather Marie Mills (See above for address) ATTORNEY TO BE NOTICED

Case: 5:03-cv-04529-RMW As of: 07/18/2010 08:39 AM PDT 10 of 35

Morris J. Baller (See above for address) ATTORNEY TO BE NOTICED

Teresa Demchak (See above for address) ATTORNEY TO BE NOTICED

Jeffrey Neil Young (See above for address) ATTORNEY TO BE NOTICED

Counter−defendant
Sylvia Jones individually, and on behalf of others similarly situated

represented by Heather Marie Mills (See above for address) ATTORNEY TO BE NOTICED

Morris J. Baller (See above for address) ATTORNEY TO BE NOTICED

Teresa Demchak (See above for address) ATTORNEY TO BE NOTICED

Jeffrey Neil Young (See above for address) ATTORNEY TO BE NOTICED

Counter−defendant
Ralph Marsh individually, and on behalf of others similarily situated

represented by Heather Marie Mills (See above for address) ATTORNEY TO BE NOTICED

Morris J. Baller (See above for address) ATTORNEY TO BE NOTICED

Teresa Demchak (See above for address) ATTORNEY TO BE NOTICED

Jeffrey Neil Young (See above for address) ATTORNEY TO BE NOTICED

Counter−defendant
Walter Maslak individually, and on behalf of others similarly situated

represented by Heather Marie Mills (See above for address) ATTORNEY TO BE NOTICED

Morris J. Baller (See above for address) ATTORNEY TO BE NOTICED

Teresa Demchak (See above for address) ATTORNEY TO BE NOTICED

Jeffrey Neil Young (See above for address) ATTORNEY TO BE NOTICED

Case: 5:03-cv-04529-RMW As of: 07/18/2010 08:39 AM PDT 11 of 35

Counter−defendant James Payne Individually, and on behalf of others similarly situated
Counter−defendant Antonio Rivera individually, and on behalf of others similarly situated
Counter−defendant William Syverson individually, and on behalf of others similarly situated

represented by Heather Marie Mills (See above for address) ATTORNEY TO BE NOTICED
Morris J. Baller (See above for address) ATTORNEY TO BE NOTICED
Teresa Demchak (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Neil Young (See above for address) ATTORNEY TO BE NOTICED
represented by Heather Marie Mills (See above for address) ATTORNEY TO BE NOTICED
Morris J. Baller (See above for address) ATTORNEY TO BE NOTICED
Teresa Demchak (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Neil Young (See above for address) ATTORNEY TO BE NOTICED
represented by Heather Marie Mills (See above for address) ATTORNEY TO BE NOTICED
Morris J. Baller (See above for address) ATTORNEY TO BE NOTICED
Teresa Demchak (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Neil Young (See above for address) ATTORNEY TO BE NOTICED

Date Filed 10/07/2003

# Docket Text
1 COMPLAINT (summons issued); jury demand; against International Business Machines Corporation (Filing fee $150 receipt number 5508629). Filed by Ruth Alice Boyd, Dale Cahill, Jack Friedman, Paul Gromkowski, Sylvia Jones, Ralph Marsh, Walter Maslak, James Payne, Antonio Rivera, William Syverson. (bw, COURT STAFF) Additional attachment(s) added on 10/16/2003 (bw, COURT STAFF). Additional attachment(s) added on 10/16/2003 (bw, COURT STAFF). Additional attachment(s) added on 10/16/2003 (bw, COURT STAFF). (Entered: 10/07/2003)

Case: 5:03-cv-04529-RMW As of: 07/18/2010 08:39 AM PDT 12 of 35

10/07/2003 10/07/2003 10/07/2003 10/22/2003 10/22/2003 10/22/2003 10/22/2003 10/23/2003 10/23/2003 10/31/2003
12/19/2003
12/19/2003 12/23/2003 01/07/2004 01/07/2004 01/08/2004 01/08/2004

2 ADR SCHEDULING ORDER: Case Management Statement due by 2/3/2004. Case Management Conference set for 2/10/2004 at 02:00 PM. (Attachments: # 1 Standing Order)(bw, COURT STAFF) (Entered: 10/07/2003)
Summons Issued as to International Business Machines Corporation (bw, COURT STAFF) (Entered: 10/07/2003)
CASE DESIGNATED for Electronic Filing. (bw, COURT STAFF) (Entered: 10/07/2003)
3 MOTION for Pro Hac Vice for Jeffrey Neil Young (Fee Paid, Receipt #5508711) filed by William Syverson. (bw, COURT STAFF) Additional attachment(s) added on 10/23/2003 (bw, COURT STAFF). (Entered: 10/22/2003)
Received Document re 3 Order Granting Application for Admission of Attorney Jeffrey Neil Young Pro Hac Vice by William Syverson. (bw, COURT STAFF) (Entered: 10/22/2003)
4 MOTION for Pro Hac Vice for Patrick N. McTeague (Fee Paid, Receipt # 5508711) filed by William Syverson. (bw, COURT STAFF) Additional attachment(s) added on 10/23/2003 (bw, COURT STAFF). (Entered: 10/22/2003)
Received Document re 4 Order Granting Application for Admission of Attorney Patrick N. McTeague Pro Hac Vice by William Syverson. (bw, COURT STAFF) (Entered: 10/22/2003)
5 ORDER by Judge Patricia V. Trumbull granting 3 Motion for Pro Hac Vice for Jeffrey Neil Young. (bw, COURT STAFF) Additional attachment(s) added on 10/23/2003 (bw, COURT STAFF). (Entered: 10/23/2003)
6 ORDER by Judge Patricia V. Trumbull granting 4 Motion for Pro Hac Vice for Patrick N. McTeague (bw, COURT STAFF) Additional attachment(s) added on 10/23/2003 (bw, COURT STAFF). (Entered: 10/23/2003)
7 Declaration of Jeffrey Neil Young Regarding Consent Forms filed by Ruth Alice Boyd, Dale Cahill, Jack Friedman, Paul Gromkowski, Sylvia Jones, Ralph Marsh, Walter Maslak, James Payne, Antonio Rivera, William Syverson. (Attachments: # 1 Exhibit Consent to Join)(Jesinger, Robert) (Entered: 10/31/2003)
8 AMENDED COMPLAINT against International Business Machines Corporation. Filed by William Syverson. (Attachments: # 1 Exhibit Plaintiff's# 2 Exhibit Syverson Charge of discrimination# 3 Exhibit Rivera's charge# 4 Exhibit Marsh's charge# 5 Exhibit Cahill's charge# 6 Exhibit # 7 Exhibit # 8 Exhibit # 9 Exhibit # 10 Exhibit EEOC determination# 11 Exhibit # 12 Exhibit Release# 13 Exhibit Later release)(Jesinger, Robert) (Filed on 12/19/2003) (Entered: 12/19/2003)
9 Declaration of Jeffrey Neil Young First Amended −− Regarding Consent Forms filed by William Syverson. (Jesinger, Robert) (Filed on 12/19/2003) (Entered: 12/19/2003)
Summons Issued as to International Business Machines Corporation on First Amended Complaint. (bw, COURT STAFF) (Filed on 12/23/04) (Entered: 12/29/2003)
10 STIPULATION Re: Response to Complaint by International Business Machines Corporation. (Wohl, Jeffrey) (Filed on 1/7/2004) (Entered: 01/07/2004)
11 Declination to Proceed Before a U.S. Magistrate Judge by International Business Machines Corporation. (Wohl, Jeffrey) (Filed on 1/7/2004) (Entered: 01/07/2004)
12 CLERK'S NOTICE of impending reassignment. Case Management Conference set for 2/13/2004 10:30 AM before Honoralbe Ronald M. Whyte. Case Management Statement due by 2/2/2004. (cm, ) (Filed on 1/8/2004) (Entered: 01/08/2004)
13 ORDER REASSIGNING CASE. Case reassigned to Judge Ronald M. Whyte for all further proceedings. Judge Patricia V Trumbull remains as the referral judge. Signed by Executive Committee on January 8, 2004. (bw, COURT STAFF) (Filed on 1/8/2004) (Entered: 01/08/2004)

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01/13/2004 01/16/2004 01/30/2004 02/12/2004
02/12/2004

14 SUMMONS Returned Executed by William Syverson, Ruth Alice Boyd, Dale Cahill, Jack Friedman, Paul Gromkowski, Sylvia Jones, Ralph Marsh, Walter Maslak, James Payne, Antonio Rivera, International Business Machines Corporation. International Business Machines Corporation served on 12/24/2003, answer due 1/13/2004. (bw, COURT STAFF) (Filed on 1/13/2004) (Entered: 01/13/2004)
15 STIPULATION Re: Postponement of Case Management Activities, Suspension of Briefing and Hearing on Parties' Motions, and Convening of Rule 16 Conference; [Proposed] Order Re: Same by International Business Machines Corporation. (Wohl, Jeffrey) (Filed on 1/16/2004) (Entered: 01/16/2004)
16 STIPULATION AND ORDER Re: Postponement of Case Management Activities, Suspension of Briefing and Hearing on Parties' Motions, and Convening of Rule 16 Conference. Case Management Conference is set for 3/5/04 @ 10:30 am. Signed by Judge Ronald M. Whyte on 1/30/04. (jg, Court Staff) (Filed on 1/30/2004) (Entered: 01/30/2004)
17 MOTION to Certify Class for purposes of Count I of the Amended Complaint and to Compel IBM to provide names, addresses, and dates of birth of similarly situated employees and for leave of court to file a second amended Complaint filed by Ruth Alice Boyd, Dale Cahill, Jack Friedman, Paul Gromkowski, Sylvia Jones, Ralph Marsh, Walter Maslak, James Payne, Antonio Rivera, William Syverson. Motion Hearing set for 3/5/2004 10:30 AM. (Young, Jeffrey) (Filed on 2/12/2004) (Entered: 02/12/2004)
18 *** FILED IN ERROR. PLEASE SEE DOCKET # 35 ***

02/12/2004 02/12/2004 02/12/2004 02/12/2004 02/12/2004

MOTION to Amend/Correct the First Amended Complaint to file a Second Amended Complaint and Proposed Order Re: Same filed by Ruth Alice Boyd, Dale Cahill, Jack Friedman, Paul Gromkowski, Sylvia Jones, Ralph Marsh, Walter Maslak, James Payne, Antonio Rivera, William Syverson. Motion Hearing set for 3/5/2004 10:30 AM. (Young, Jeffrey) (Filed on 2/12/2004) Modified on 2/13/2004 (br, COURT STAFF). (Entered: 02/12/2004)
19 MEMORANDUM in Support of Motion to Approve Notice of Action, to Certify Class for Purposes of Count I of the Amended Complaint, and to Compel IBM to Provide Names, Addresses, and Dates of Birth of Similarly Situated Employees filed by Ruth Alice Boyd, Dale Cahill, Jack Friedman, Paul Gromkowski, Sylvia Jones, Ralph Marsh, Walter Maslak, James Payne, Antonio Rivera, William Syverson. (Young, Jeffrey) (Filed on 2/12/2004) (Entered: 02/12/2004)
20 Proposed Order to Approve Notice of Action, etc. by Ruth Alice Boyd, Dale Cahill, Jack Friedman, Paul Gromkowski, Sylvia Jones, Ralph Marsh, Walter Maslak, James Payne, Antonio Rivera, William Syverson. (Attachments: # 1 Exhibit Ex A: Notice of Pendency of Age Discr Lawsuit−deferral state# 2 Exhibit Ex B: Notice of Pendency of Age Discr Lawsuit−Non−Deferral State# 3 Exhibit Ex C: Consent to Join Class Action)(Young, Jeffrey) (Filed on 2/12/2004) (Entered: 02/12/2004)
21 Declaration of Ruth Alice Boyd filed by Ruth Alice Boyd, Dale Cahill, Jack Friedman, Paul Gromkowski, Sylvia Jones, Ralph Marsh, Walter Maslak, James Payne, Antonio Rivera, William Syverson. (Attachments: # 1 Exhibit Ex. 1−3 Release and EEOC documents)(Young, Jeffrey) (Filed on 2/12/2004) (Entered: 02/12/2004)
22 Declaration of Dale Cahill filed by Ruth Alice Boyd, Dale Cahill, Jack Friedman, Paul Gromkowski, Sylvia Jones, Ralph Marsh, Walter Maslak, James Payne, Antonio Rivera, William Syverson. (Attachments: # 1 Exhibit Ex. 1−2: Release and EEOC docs)(Young, Jeffrey) (Filed on 2/12/2004) (Entered: 02/12/2004)
23 Declaration of James Leas filed by Ruth Alice Boyd, Dale Cahill, Jack Friedman, Paul Gromkowski, Sylvia Jones, Ralph Marsh, Walter Maslak, James Payne, Antonio Rivera, William Syverson. (Attachments: # 1 Exhibit Ex. 1−3: spreadsheet, Release, news article)(Young, Jeffrey) (Filed on 2/12/2004) (Entered: 02/12/2004)

Case: 5:03-cv-04529-RMW As of: 07/18/2010 08:39 AM PDT 14 of 35

02/12/2004 02/12/2004 02/12/2004 02/12/2004 02/12/2004 02/12/2004 02/12/2004 02/12/2004 02/12/2004 02/12/2004
02/12/2004 02/12/2004

24 Declaration of Rolf Marsh filed by Ruth Alice Boyd, Dale Cahill, Jack Friedman, Paul Gromkowski, Sylvia Jones, Ralph Marsh, Walter Maslak, James Payne, Antonio Rivera, William Syverson. (Attachments: # 1 Exhibit Ex. 1−2: Release, EEOC docs)(Young, Jeffrey) (Filed on 2/12/2004) (Entered: 02/12/2004)
25 Declaration of David Mazgaj filed by Ruth Alice Boyd, Dale Cahill, Jack Friedman, Paul Gromkowski, Sylvia Jones, Ralph Marsh, Walter Maslak, James Payne, Antonio Rivera, William Syverson. (Attachments: # 1 Exhibit Ex. 1: Release)(Young, Jeffrey) (Filed on 2/12/2004) (Entered: 02/12/2004)
26 Declaration of Daniel Moczan filed by Ruth Alice Boyd, Dale Cahill, Jack Friedman, Paul Gromkowski, Sylvia Jones, Ralph Marsh, Walter Maslak, James Payne, Antonio Rivera, William Syverson. (Attachments: # 1 Exhibit Ex. 1−2: EEOC docs)(Young, Jeffrey) (Filed on 2/12/2004) (Entered: 02/12/2004)
27 Declaration of Antonio Rivera filed by Ruth Alice Boyd, Dale Cahill, Jack Friedman, Paul Gromkowski, Sylvia Jones, Ralph Marsh, Walter Maslak, James Payne, Antonio Rivera, William Syverson. (Attachments: # 1 Exhibit Ex. 1−3: Release, EEOC docs)(Young, Jeffrey) (Filed on 2/12/2004) (Entered: 02/12/2004)
28 COUNTERCLAIM against Ruth Alice Boyd, Dale Cahill, Jack Friedman, Paul Gromkowski, Sylvia Jones, Ralph Marsh, Walter Maslak, James Payne, Antonio Rivera, William Syverson. Filed by International Business Machines Corporation. (Wohl, Jeffrey) (Filed on 2/12/2004) (Entered: 02/12/2004)
29 Declaration of James Payne filed by Ruth Alice Boyd, Dale Cahill, Jack Friedman, Paul Gromkowski, Sylvia Jones, Ralph Marsh, Walter Maslak, James Payne, Antonio Rivera, William Syverson. (Attachments: # 1 Exhibit Ex. 1−4: Release, EEOC docs)(Young, Jeffrey) (Filed on 2/12/2004) (Entered: 02/12/2004)
30 Declaration of William Syverson filed by Ruth Alice Boyd, Dale Cahill, Jack Friedman, Paul Gromkowski, Sylvia Jones, Ralph Marsh, Walter Maslak, James Payne, Antonio Rivera, William Syverson. (Attachments: # 1 Exhibit Ex. 1: IBM 2002 Annual report (portion)# 2 Exhibit Ex. 2−3: news article, release)(Young, Jeffrey) (Filed on 2/12/2004) (Entered: 02/12/2004)
31 MOTION to Dismiss Notice of Motion and Motion to Dismiss Without Leave to Amend Plaintiffs' First Amended Complaint; Memoradnum in Support of Motion to Dismiss filed by International Business Machines Corporation. (Wohl, Jeffrey) (Filed on 2/12/2004) (Entered: 02/12/2004)
32 Proposed Order Granting Motion to Dismiss Plaintiffs' First Amended Complaint Without Leave to Amend by International Business Machines Corporation. (Wohl, Jeffrey) (Filed on 2/12/2004) (Entered: 02/12/2004)
33 Declaration of Jeffrey Neil Young filed by Ruth Alice Boyd, Dale Cahill, Jack Friedman, Paul Gromkowski, Sylvia Jones, Ralph Marsh, Walter Maslak, James Payne, Antonio Rivera, William Syverson. (Attachments: # 1 Exhibit Ex. 1−3: Releases# 2 Exhibit Ex. 4−6: Releases# 3 Exhibit Ex. 7−9: Releases# 4 Exhibit Ex. 10−12: Releases# 5 Exhibit Ex. 13−15: Releases# 6 Exhibit Ex. 16: Thomforde v. IBM − Dft Memo opposing Plt M−Compel# 7 Exhibit Ex. 17−19: Charges of Discrimination# 8 Exhibit Ex. 20−21: Order in Mooney v. IBM; Order in Thomforde v. IBM# 9 Exhibit Ex. 22: Notice of Pendency of Age Discr Lawsuit−Deferral state# 10 Exhibit Ex. 23: Notice of Pendency of Age Discr Lawsuit−non−deferral state# 11 Exhibit Ex. 24: Consent to Join Class Action)(Young, Jeffrey) (Filed on 2/12/2004) (Entered: 02/12/2004)
34 AFFIDAVIT Second Amended Declaration of Jeffrey Neil Young Regarding Consent Forms by Ruth Alice Boyd, Dale Cahill, Jack Friedman, Paul Gromkowski, Sylvia Jones, Ralph Marsh, Walter Maslak, James Payne, Antonio Rivera, William Syverson. (Young, Jeffrey) (Filed on 2/12/2004) (Entered: 02/12/2004)
35 MOTION to Amend/Correct the First Amended Complaint to file a Second Amended Complaint and a Proposed Order Re: Same filed by Ruth Alice Boyd, Dale Cahill, Jack Friedman, Paul Gromkowski, Sylvia Jones, Ralph Marsh, Walter Maslak, James Payne, Antonio Rivera, William Syverson. Motion Hearing set for 3/5/2004 10:30 AM. (Attachments: # 1 Exhibit Ex. 1: Proposed Second Amended

Case: 5:03-cv-04529-RMW As of: 07/18/2010 08:39 AM PDT 15 of 35

02/27/2004 02/27/2004 03/05/2004
03/16/2004 03/16/2004 03/16/2004 04/02/2004 04/02/2004 04/09/2004

Complaint)(Young, Jeffrey) (Filed on 2/12/2004) (Entered: 02/12/2004)
36 CASE MANAGEMENT STATEMENT Plaintiffs' Rule 16 Conference Statement filed by Ruth Alice Boyd, Dale Cahill, Jack Friedman, Paul Gromkowski, Sylvia Jones, Ralph Marsh, Walter Maslak, James Payne, Antonio Rivera, William Syverson. (Young, Jeffrey) (Filed on 2/27/2004) (Entered: 02/27/2004)
37 CASE MANAGEMENT STATEMENT Defendant and Counter−Claimant International Business Machines Corporation's Rule 16 Conference Statement filed by International Business Machines Corporation. (Wohl, Jeffrey) (Filed on 2/27/2004) (Entered: 02/27/2004)
38 Minute Entry: Initial Case Management Conference held on 3/5/2004 before Ronald M. Whyte (Date Filed: 3/5/2004), Motions terminated: 17 MOTION to Certify Class for purposes of Count I of the Amended Complaint and to Compel IBM to provide names, addresses, and dates of birth of similarly situated employees and for leave of court to file a second amended Complaint filed by William Syverson, Ruth Alice Boyd, Dale Cahill, Jack Friedman, Paul Gromkowski, Sylvia Jones, Ralph Marsh, Walter Maslak, James Payne, Antonio Rivera, 18 MOTION to Amend/Correct the First Amended Complaint to file a Second Amended Complaint and Proposed Order Re: Same filed by William Syverson, Ruth Alice Boyd, Dale Cahill, Jack Friedman, Paul Gromkowski, Sylvia Jones, Ralph Marsh, Walter Maslak, James Payne, Antonio Rivera, 35 MOTION to Amend/Correct the First Amended Complaint to file a Second Amended Complaint and a Proposed Order Re: Same filed by William Syverson, Ruth Alice Boyd, Dale Cahill, Jack Friedman, Paul Gromkowski, Sylvia Jones, Ralph Marsh, Walter Maslak, James Payne, Antonio Rivera. Case Management Conference set for 4/30/2004 10:30 AM. Hearing on Defendant's Motion to Dismiss is set for 4/30/2004 09:00 AM. (Court Reporter Not Reported.) (jg, Court Staff) (Date Filed: 3/5/2004) (Entered: 03/05/2004)
39 MOTION to Dismiss Defendant's Counterclaim; Memorandum in Support of Motion to Dismiss filed by Ruth Alice Boyd, Dale Cahill, Jack Friedman, Paul Gromkowski, Sylvia Jones, Ralph Marsh, Walter Maslak, James Payne, Antonio Rivera, William Syverson. Motion Hearing set for 4/30/2004 10:00 AM. (Young, Jeffrey) (Filed on 3/16/2004) (Entered: 03/16/2004)
40 Proposed Order re 39 Granting Motion to Dismiss Defendant's Counterclaim by Ruth Alice Boyd, Dale Cahill, Jack Friedman, Paul Gromkowski, Sylvia Jones, Ralph Marsh, Walter Maslak, James Payne, Antonio Rivera, William Syverson. (Young, Jeffrey) (Filed on 3/16/2004) (Entered: 03/16/2004)
41 Declaration of William Syverson in Support of 39 Motion to Dismiss Defendant's Counterclaim filed by Ruth Alice Boyd, Dale Cahill, Jack Friedman, Paul Gromkowski, Sylvia Jones, Ralph Marsh, Walter Maslak, James Payne, Antonio Rivera, William Syverson. (Attachments: # 1 Exhibit 1: Calculations of lost benefits)(Related document(s) 39 ) (Young, Jeffrey) (Filed on 3/16/2004) (Entered: 03/16/2004)
42 Memorandum in Opposition to Defendant's Motion to Dismiss Plaintiffs' First Amended Complaint Without Leave to Amend filed by Ruth Alice Boyd, Dale Cahill, Jack Friedman, Paul Gromkowski, Sylvia Jones, Ralph Marsh, Walter Maslak, James Payne, Antonio Rivera, William Syverson. (Young, Jeffrey) (Filed on 4/2/2004) (Entered: 04/02/2004)
43 DECLARATION of Jeffrey Neil Young filed by Ruth Alice Boyd, Dale Cahill, Jack Friedman, Paul Gromkowski, Sylvia Jones, Ralph Marsh, Walter Maslak, James Payne, Antonio Rivera, William Syverson. (Attachments: # 1 Exhibit #1: IBM General Release and Covenant Not to Sue# 2 Exhibit #2: Form F−1, Sec. 2(a), Lindemann &Kadue, "Age Discrimination in Employment Law" 1417 (2003)# 3 Exhibit #3: Letter from Attorney William J. Egan dated 03/11/2004)(Young, Jeffrey) (Filed on 4/2/2004) (Entered: 04/02/2004)
44 *** FILED IN ERROR. PLEASE SEE DOCKET # 46 *** MOTION to Dismiss Opposition to Plaintiffs' Motion to Dismiss IBM's Counterclaim filed by International Business Machines Corporation. Motion Hearing set for 4/30/2004 09:00 AM. (Wohl, Jeffrey) (Filed on 4/9/2004) Modified

Case: 5:03-cv-04529-RMW As of: 07/18/2010 08:39 AM PDT 16 of 35

04/09/2004
04/09/2004 04/09/2004 04/16/2004
04/16/2004 04/16/2004 04/22/2004 05/04/2004 05/12/2004 06/01/2004 06/01/2004 06/01/2004 06/01/2004 06/02/2004

on 4/9/2004 (br, COURT STAFF). (Entered: 04/09/2004)
45 DECLARATION of Marianne E. DeFazio in Opposition to 44 Plaintiffs' Motion to Dismiss IBM's Counterclaim filed by International Business Machines Corporation. (Attachments: # 1 Exhibit A − Portion of the Summary Plan Description of Benefits Plan for Retired Employees# 2 Exhibit B − Summary Plan Description of Future Health Account)(Related document(s) 44 ) (Wohl, Jeffrey) (Filed on 4/9/2004) (Entered: 04/09/2004)
46 Memorandum in Opposition Opposition to Plaintiffs' Motion to Dismiss IBM's Counterclaim − CORRECTION OF DOCKET # 44 filed by International Business Machines Corporation. (Wohl, Jeffrey) (Filed on 4/9/2004) (Entered: 04/09/2004)
47 Proposed Order Denying Plaintiffs' Motion to Dismiss IBM's Counterclaim by International Business Machines Corporation. (Wohl, Jeffrey) (Filed on 4/9/2004) (Entered: 04/09/2004)
48 Reply Memorandum in Support of Plaintiffs' Motion to Dismiss IBM's Counterclaim filed by Ruth Alice Boyd, Dale Cahill, Jack Friedman, Paul Gromkowski, Sylvia Jones, Ralph Marsh, Walter Maslak, James Payne, Antonio Rivera, William Syverson. (Young, Jeffrey) (Filed on 4/16/2004) (Entered: 04/16/2004)
49 CASE MANAGEMENT STATEMENT Defendant's Updated Rule 16 Conference Statement filed by International Business Machines Corporation. (Wohl, Jeffrey) (Filed on 4/16/2004) (Entered: 04/16/2004)
50 Reply Memorandum in Support of Motion to Dismiss Plaintiffs' First Amended Complaint Without Leave to Amend filed by International Business Machines Corporation. (Attachments: # 1 Exhibit A−−Thomforde v. International Business Machines Corporation)(Wohl, Jeffrey) (Filed on 4/16/2004) (Entered: 04/16/2004)
51 AMENDED DOCUMENT by Ruth Alice Boyd, Dale Cahill, Jack Friedman, Paul Gromkowski, Sylvia Jones, Ralph Marsh, Walter Maslak, James Payne, Antonio Rivera, William Syverson. Plaintiffs UPDATED Rule 16 Conference Statement. (Jesinger, Robert) (Filed on 4/22/2004) (Entered: 04/22/2004)
52 ORDER by Judge Ronald M. Whyte Granting 31 defendant's motion to dismiss first amended complaint, denying plaintiffs' 39 motion to dismiss defendant's counterclaim (rmwlc1, ) (Filed on 5/4/2004) (Entered: 05/04/2004)
53 ANSWER to Counterclaim by Ruth Alice Boyd, Dale Cahill, Jack Friedman, Paul Gromkowski, Sylvia Jones, Ralph Marsh, Walter Maslak, James Payne, Antonio Rivera, William Syverson. (Young, Jeffrey) (Filed on 5/12/2004) (Entered: 05/12/2004)
54 NOTICE OF APPEAL by Ruth Alice Boyd, Dale Cahill, Jack Friedman, Paul Gromkowski, Sylvia Jones, Ralph Marsh, Walter Maslak, James Payne, Antonio Rivera, William Syverson. Filing fee $ 255. Appeal Record due by 7/1/2004. (Jesinger, Robert) (Filed on 6/1/2004) (Entered: 06/01/2004)
55 TRANSCRIPT DESIGNATION and Ordering Form by Ruth Alice Boyd, Dale Cahill, Jack Friedman, Paul Gromkowski, Sylvia Jones, Ralph Marsh, Walter Maslak, James Payne, Antonio Rivera, William Syverson. (Jesinger, Robert) (Filed on 6/1/2004) (Entered: 06/01/2004)
56 CERTIFICATE OF SERVICE by Ruth Alice Boyd, Dale Cahill, Jack Friedman, Paul Gromkowski, Sylvia Jones, Ralph Marsh, Walter Maslak, James Payne, Antonio Rivera, William Syverson (Jesinger, Robert) (Filed on 6/1/2004) (Entered: 06/01/2004)
57 EXHIBITS to Notice of Appeal −− Representation Statement filed by Ruth Alice Boyd, Dale Cahill, Jack Friedman, Paul Gromkowski, Sylvia Jones, Ralph Marsh, Walter Maslak, James Payne, Antonio Rivera, William Syverson. (Jesinger, Robert) (Filed on 6/1/2004) (Entered: 06/01/2004)
Mailed request for payment of docket fee to appellant (cc to USCA) (dhm, COURT STAFF) (Filed on 6/2/2004) (Entered: 06/02/2004)

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06/02/2004 06/02/2004 06/04/2004 06/16/2004 06/16/2004 06/16/2004 06/16/2004 06/17/2004 06/17/2004
06/21/2004 07/14/2004 07/16/2004
07/16/2004 07/16/2004
07/16/2004

Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 54 Notice of Appeal, (dhm, COURT STAFF) (Filed on 6/2/2004) (Entered: 06/02/2004)
USCA Appeal Fees received $ 255 receipt number 5510174 re 54 Notice of Appeal, filed by William Syverson, Ruth Alice Boyd, Dale Cahill, Jack Friedman, Paul Gromkowski, Sylvia Jones, Ralph Marsh, Walter Maslak, James Payne, Antonio Rivera (dhm, COURT STAFF) (Filed on 6/2/2004) (Entered: 06/03/2004)
Certificate of Record Mailed to USCA re appeal 54 : No Transcripts Designated (dhm, COURT STAFF) (Filed on 6/4/2004) (Entered: 06/04/2004)
58 Letter from Jeffrey D. Wohl to Hon. Ronald M. Whyte re Parties' Stipulation &Order re Jdgmnt on IBM's Counterclaim / Proposed Jdgmnt. (Wohl, Jeffrey) (Filed on 6/16/2004) (Entered: 06/16/2004)
59 STIPULATION Stipulation and Order re: Judgment on IBM's Counterclaim by International Business Machines Corporation. (Wohl, Jeffrey) (Filed on 6/16/2004) (Entered: 06/16/2004)
60 Proposed Order re: Judgment on IBM's Counterclaim by International Business Machines Corporation. (Wohl, Jeffrey) (Filed on 6/16/2004) (Entered: 06/16/2004)
61 Proposed Order re 58 , 59 , 60 Proposed Judgment re Stipulation and Order re IBM's Counterclaim by International Business Machines Corporation. (Wohl, Jeffrey) (Filed on 6/16/2004) (Entered: 06/16/2004)
62 ORDER: Judgment will be entered in accordance with the parties stipulation. Signed by Judge Ronald M. Whyte on 6/17/2004. (dhm, COURT STAFF) (Filed on 6/17/2004) (Entered: 06/17/2004)
63 JUDGMENT: The First Amended Complaint is dismissed without leave to amend. Judgment is entered in favor of IBM on counterclaim, awarding to IBM $27,500.00 for which plaintiffs are jointly and severally liable. ***Civil Case Terminated. Signed by Judge Ronald M. Whyte on 6/17/2004. (dhm, COURT STAFF) (Filed on 6/17/2004) (Entered: 06/17/2004)
USCA Case Number 04−16218 for 54 Notice of Appeal, filed by William Syverson, Ruth Alice Boyd, Dale Cahill, Jack Friedman, Paul Gromkowski, Sylvia Jones, Ralph Marsh, Walter Maslak, James Payne, Antonio Rivera. (dhm, COURT STAFF) (Filed on 6/21/2004) (Entered: 06/21/2004)
64 TRANSCRIPT filed for dates of 4/30/04 before Judge Ronald M. Whyte, re 54 Notice of Appeal, Court Reporter: Lee−Anne Shortridge. (cv, COURT STAFF) (Filed on 7/14/2004) (Entered: 07/15/2004)
65 NOTICE OF APPEAL by Ruth Alice Boyd, Dale Cahill, Jack Friedman, Paul Gromkowski, Sylvia Jones, Ralph Marsh, Walter Maslak, James Payne, Antonio Rivera, William Syverson. Filing fee $ 255 paid, receipt # 5510456. Appeal Record due by 8/16/2004. (Jesinger, Robert) (Filed on 7/16/2004) Modified on 7/19/2004 to indicate that fee was paid (dhm, COURT STAFF). (Entered: 07/16/2004)
66 ASSOCIATION of Counsel REPRESENTATION STATEMENT by Ruth Alice Boyd, Dale Cahill, Jack Friedman, Paul Gromkowski, Sylvia Jones, Ralph Marsh, Walter Maslak, James Payne, Antonio Rivera, William Syverson. (Jesinger, Robert) (Filed on 7/16/2004) (Entered: 07/16/2004)
67 TRANSCRIPT DESIGNATION by Ruth Alice Boyd, Dale Cahill, Jack Friedman, Paul Gromkowski, Sylvia Jones, Ralph Marsh, Walter Maslak, James Payne, Antonio Rivera, William Syverson. **NO TRANSCRIPTS DESIGNATED**(Jesinger, Robert) (Filed on 7/16/2004) Modified on 7/19/2004 to indicate no transcripts designated. (dhm, COURT STAFF). (Entered: 07/16/2004)
68 CERTIFICATE OF SERVICE by Ruth Alice Boyd, Dale Cahill, Jack Friedman, Paul Gromkowski, Sylvia Jones, Ralph Marsh, Walter Maslak, James Payne, Antonio Rivera, William Syverson (Jesinger, Robert) (Filed on 7/16/2004) (Entered: 07/16/2004)

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07/19/2004 07/19/2004 07/22/2004 07/29/2004
07/30/2004 08/05/2004
03/20/2006 01/12/2007
01/16/2007 01/26/2007
02/13/2007
02/26/2007 02/27/2007 02/27/2007
02/27/2007 02/27/2007 02/27/2007

Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 65 Notice of Appeal, (dhm, COURT STAFF) (Filed on 7/19/2004) (Entered: 07/19/2004)
Certificate of Record Mailed to USCA re appeal 65 : No Transcripts Designated (dhm, COURT STAFF) (Filed on 7/19/2004) (Entered: 07/19/2004)
69 NOTICE by International Business Machines Corporation Notice of Designation of Entire Transcript on Appeal (Harper, Kerri) (Filed on 7/22/2004) (Entered: 07/22/2004)
70 ORDER of USCA: This appeal is dismissed for failure to prosecute as to 54 Notice of Appeal, filed by William Syverson, Ruth Alice Boyd, Dale Cahill, Jack Friedman, Paul Gromkowski, Sylvia Jones, Ralph Marsh, Walter Maslak, James Payne, Antonio Rivera (USCA # 04−16218) (dhm, COURT STAFF) (Filed on 7/29/2004) (Entered: 07/29/2004)
71 CLERKS Letter Spreading Mandate to Counsel (dhm, COURT STAFF) (Filed on 7/30/2004) (Entered: 07/30/2004)
USCA Case Number 04−16449 for 65 Notice of Appeal, filed by William Syverson, Ruth Alice Boyd, Dale Cahill, Jack Friedman, Paul Gromkowski, Sylvia Jones, Ralph Marsh, Walter Maslak, James Payne, Antonio Rivera. (dhm, COURT STAFF) (Filed on 8/5/2004) (Entered: 08/05/2004)
Certified and Transmitted Record on Appeal to US Court of Appeals re 65 Notice of Appeal, (dhm, COURT STAFF) (Filed on 3/20/2006) (Entered: 03/20/2006)
72 USCA JUDGMENT as to 65 Notice of Appeal filed by William Syverson,, Ruth Alice Boyd,, Dale Cahill,, Jack Friedman,, Paul Gromkowski,, Sylvia Jones,, Ralph Marsh,, Walter Maslak,, James Payne,, Antonio Rivera. The judgment of the District Court in this cause is hereby reversed and remanded. Costs taxed. USCA # 04−16449 (dhm, COURT STAFF) (Filed on 1/12/2007) (Entered: 01/16/2007)
73 CLERKS Letter Spreading Mandate to Counsel (Attachments: # 1 USCA Judgment)(dhm, COURT STAFF) (Filed on 1/16/2007) (Entered: 01/16/2007)
74 STIPULATION Re: Suspension of Deadlines and Litigation Activity Pending Scheduling of Status Conference by International Business Machines Corporation, International Business Machines Corporation. (Wohl, Jeffrey) (Filed on 1/26/2007) (Entered: 01/26/2007)
75 CLERK'S NOTICE OF SETTING CASE MANAGEMENT CONFERENCE: Case Management Conference set for 3/9/2007 10:30 AM. Joint Case Management Statement due by 3/2/2007. (jg, COURT STAFF) (Filed on 2/13/2007) (Entered: 02/13/2007)
76 ASSOCIATION of Counsel Notice of Association of Counsel for Defendant International Business Machines Corporation by International Business Machines Corporation. (Wohl, Jeffrey) (Filed on 2/26/2007) (Entered: 02/26/2007)
77 MOTION for leave to appear in Pro Hac Vice filed by International Business Machines Corporation. (Wohl, Jeffrey) (Filed on 2/27/2007) (Entered: 02/27/2007)
78 Proposed Order re 77 MOTION for leave to appear in Pro Hac Vice [Proposed] Order Granting Application for Admission of Alison B. Marshall Pro Hac Vice by International Business Machines Corporation. (Wohl, Jeffrey) (Filed on 2/27/2007) (Entered: 02/27/2007)
79 MOTION for leave to appear in Pro Hac Vice Application for Admission of Glen D. Nager Pro Hac Vice filed by International Business Machines Corporation. (Wohl, Jeffrey) (Filed on 2/27/2007) (Entered: 02/27/2007)
80 Proposed Order re 79 MOTION for leave to appear in Pro Hac Vice Application for Admission of Glen D. Nager Pro Hac Vice by International Business Machines Corporation. (Wohl, Jeffrey) (Filed on 2/27/2007) (Entered: 02/27/2007)
81 STIPULATION re 75 Clerks Notice Stipulation Re: Postponement of 03/09/07 Case Management Conference Pending Plaintiffs' Proposed Second Amended

Case: 5:03-cv-04529-RMW As of: 07/18/2010 08:39 AM PDT 19 of 35

02/28/2007 03/05/2007 03/14/2007 03/14/2007 04/16/2007 04/27/2007 05/04/2007
05/04/2007 05/08/2007 05/14/2007 05/29/2007 05/29/2007 05/29/2007 06/04/2007
06/04/2007

Complaint; [Proposed] Order Re: Same by International Business Machines Corporation. (Wohl, Jeffrey) (Filed on 2/27/2007) (Entered: 02/27/2007)
Pro Hac Vice Application Fees received : $ 420.00, receipt number 5461100053, for the applications of Alison B. Marshall and Glen D. Nager. (dhm, COURT STAFF) (Filed on 2/28/2007) (Entered: 03/06/2007)
82 STIPULATION AND ORDER Re: 81 Postponement of 3/9/07 Case Management Conference Pending Plaintiffs' Proposed Second Amended Complaint.Case Management Conference set for 5/4/2007 10:30 AM. Signed by Judge Ronald M. Whyte on 3/5/07. (jg, COURT STAFF) (Filed on 3/5/2007) (Entered: 03/05/2007)
83 ORDER by Judge Ronald M. Whyte granting 77 Application of Alison B. Marshall for Admission Pro Hac Vice (dhm, COURT STAFF) (Filed on 3/14/2007) (Entered: 03/15/2007)
84 ORDER by Judge Ronald M. Whyte granting 79 Application of Glen D. Nager for Admission Pro Hac Vice (dhm, COURT STAFF) (Filed on 3/14/2007) (Entered: 03/15/2007)
85 Appeal Record Returned: 54 , 65 Notice of Appeal, (dhm, COURT STAFF) (Filed on 4/16/2007) (Entered: 04/16/2007)
86 JOINT CASE MANAGEMENT STATEMENT and Proposed Order filed by International Business Machines Corporation. (Wohl, Jeffrey) (Filed on 4/27/2007) (Entered: 04/27/2007)
87 AMENDED COMPLAINT Second Amended Complaint against International Business Machines Corporation. Filed byWilliam Syverson. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9 # 10 # 11 # 12 # 13 # 14 # 15 # 16 # 17 # 18 # 19 # 20 # 21 # 22 # 23 # 24 # 25 # 26 # 27 # 28)(Platten, Christopher) (Filed on 5/4/2007) (Entered: 05/04/2007)
89 Minute Entry: Initial Case Management Conference held on 5/4/2007 before Ronald M. Whyte (Date Filed: 5/4/2007). Motion Hearing set for 7/27/2007 09:00 AM in Courtroom 6, 4th Floor, San Jose. (Court Reporter Not Reported.) (jg, COURT STAFF) (Date Filed: 5/4/2007) (Entered: 05/08/2007)
88 NOTICE of Appearance by Jeffrey Neil Young of Teresa Demchak, Morris Baller, and Heather Mills (Young, Jeffrey) (Filed on 5/8/2007) (Entered: 05/08/2007)
90 Proposed Order re 89 Case Management Conference − Initial,, Set Hearings, Order Following 05/04/07 Case Management Conference by International Business Machines Corporation. (Wohl, Jeffrey) (Filed on 5/14/2007) (Entered: 05/14/2007)
91 APPLICATION of Traci L. Lovitt for leave to appear Pro Hac Vice ( Filing fee $ 210, receipt number 54611001068) filed by International Business Machines Corporation. (dhm, COURT STAFF) (Filed on 5/29/2007) (Entered: 05/29/2007)
Proposed Order re 91 APPLICATION of Traci L. Lovitt for leave to appear Pro Hac Vice ( Filing fee $ 210, receipt number 5461100106.) by International Business Machines Corporation. (dhm, COURT STAFF) (Filed on 5/29/2007) (Entered: 05/29/2007)
92 CERTIFICATE OF SERVICE by International Business Machines Corporation re 91 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 210, receipt number 5461100106.), Proposed Order (dhm, COURT STAFF) (Filed on 5/29/2007) (Entered: 05/29/2007)
93 MOTION to Dismiss DEFENDANT'S NOTICE OF MOTION AND MOTION TO DISMISS PARTS OF PLAINTIFF'S SECOND AMENDED COMPLAINT; MEMORANDUM IN SUPPORT OF MOTION filed by International Business Machines Corporation. Motion Hearing set for 7/27/2007 09:00 AM in Courtroom 6, 4th Floor, San Jose. (Wohl, Jeffrey) (Filed on 6/4/2007) (Entered: 06/04/2007)
94 Proposed Order re 93 MOTION to Dismiss DEFENDANT'S NOTICE OF MOTION AND MOTION TO DISMISS PARTS OF PLAINTIFF'S SECOND AMENDED COMPLAINT; MEMORANDUM IN SUPPORT OF MOTION // [PROPOSED] ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

Case: 5:03-cv-04529-RMW As of: 07/18/2010 08:39 AM PDT 20 of 35

06/06/2007 06/07/2007 06/27/2007
07/11/2007
07/27/2007
08/10/2007 10/03/2007 10/22/2007 10/22/2007 10/22/2007 11/06/2007 11/06/2007 11/06/2007

PARTS OF PLAINTIFF'S SECOND AMENDED COMPLAINT by International Business Machines Corporation. (Wohl, Jeffrey) (Filed on 6/4/2007) (Entered: 06/04/2007)
95 CASE MANAGEMENT SCHEDULING ORDER 90 : Motion Hearing set for 7/27/2007 09:00 AM in Courtroom 6, 4th Floor, San Jose. Signed by Judge Ronald M. Whyte on 6/6/07. (jg, COURT STAFF) (Filed on 6/6/2007) (Entered: 06/06/2007)
96 ORDER by Judge Ronald M. Whyte granting 91 APPLICATION of Traci L. Lovitt for leave to appear Pro Hac Vice. (dhm, COURT STAFF) (Filed on 6/7/2007) (Entered: 06/07/2007)
97 Memorandum in Opposition re 93 MOTION to Dismiss DEFENDANT'S NOTICE OF MOTION AND MOTION TO DISMISS PARTS OF PLAINTIFF'S SECOND AMENDED COMPLAINT; MEMORANDUM IN SUPPORT OF MOTION filed byWilliam Syverson. (Demchak, Teresa) (Filed on 6/27/2007) (Entered: 06/27/2007)
98 Reply Memorandum in support of 93 DEFENDANT'S NOTICE OF MOTION AND MOTION TO DISMISS PARTS OF PLAINTIFF'S SECOND AMENDED COMPLAINT; MEMORANDUM IN SUPPORT OF MOTION filed by International Business Machines Corporation. (Wohl, Jeffrey) (Filed on 7/11/2007) Modified text on 7/13/2007 (dhm, COURT STAFF). (Entered: 07/11/2007)
99 Minute Entry: Motion Hearing held on 7/27/2007 before Ronald M. Whyte (Date Filed: 7/27/2007) re 93 MOTION to Dismiss DEFENDANT'S NOTICE OF MOTION AND MOTION TO DISMISS PARTS OF PLAINTIFF'S SECOND AMENDED COMPLAINT; MEMORANDUM IN SUPPORT OF MOTION filed by International Business Machines Corporation. (Court Reporter Lee−Anne Shortridge.) (jg, COURT STAFF) (Date Filed: 7/27/2007) (Entered: 07/31/2007)
100 TRANSCRIPT of Proceedings held on 7/27/2007 before Judge Ronald M. Whyte. Court Reporter: Lee−Anne Shortridge. (dhm, COURT STAFF) (Filed on 8/10/2007) (Entered: 08/10/2007)
101 ORDER by Judge Whyte granting 93 Defendant's Motion to Dismiss (rmwlc2, COURT STAFF) (Filed on 10/3/2007) (Entered: 10/03/2007)
102 STIPULATION Regarding Enlargement of Time to File Third Amended Complaint by International Business Machines Corporation. (Wohl, Jeffrey) (Filed on 10/22/2007) (Entered: 10/22/2007)
103 Declaration of Jeffrey Neil Young in Support of 102 Stipulation Re Enlargement of Time to File Third Amended Complaint filed byInternational Business Machines Corporation. (Related document(s) 102 ) (Wohl, Jeffrey) (Filed on 10/22/2007) (Entered: 10/22/2007)
104 Proposed Order re 102 Stipulation [Proposed] Order Granting Enlargement of Time to File Third Amended Complaint by International Business Machines Corporation. (Wohl, Jeffrey) (Filed on 10/22/2007) (Entered: 10/22/2007)
105 STIPULATION REGARDING PRESERVATION OF PLAINTIFFS' OWBPA CLAIM FOR APPEAL by William Syverson. (Attachments: # 1 Signature Page (Declarations/Stipulations))(Demchak, Teresa) (Filed on 11/6/2007) (Entered: 11/06/2007)
106 STIPULATION AND ORDER granting enlargement of time re 104 Proposed Order filed by International Business Machines Corporation.Signed by Judge Ronald M. Whyte on 11/6/07. (cm, COURT STAFF) (Filed on 11/6/2007) (Entered: 11/06/2007)
107 AMENDED COMPLAINT THIRD AMENDED COMPLAINT against International Business Machines Corporation. Filed byWilliam Syverson. (Attachments: # 1 Exhibit A &1−27)(Demchak, Teresa) (Filed on 11/6/2007) (Entered: 11/06/2007)

Case: 5:03-cv-04529-RMW As of: 07/18/2010 08:39 AM PDT 21 of 35

11/26/2007 11/26/2007 01/25/2008 01/28/2008 02/01/2008
02/08/2008 02/08/2008 02/08/2008 02/08/2008 02/11/2008 02/11/2008 03/12/2008 03/17/2008 04/23/2008 04/23/2008
04/28/2008 05/12/2008 05/12/2008

108 ANSWER to Amended Complaint Answer to Plaintiff's Third Amended Complaint byInternational Business Machines Corporation. (Wohl, Jeffrey) (Filed on 11/26/2007) (Entered: 11/26/2007)
109 Certificate of Interested Entities by International Business Machines Corporation (Wohl, Jeffrey) (Filed on 11/26/2007) (Entered: 11/26/2007)
110 JOINT CASE MANAGEMENT STATEMENT and Proposed Order (L.R. 16−9) filed by International Business Machines Corporation. (Agenbroad, Aaron) (Filed on 1/25/2008) (Entered: 01/25/2008)
111 STIPULATION re Protective Order by William Syverson. (Demchak, Teresa) (Filed on 1/28/2008) (Entered: 01/28/2008)
117 Minute Entry: Initial Case Management Conference held on 2/1/2008 before Ronald M. Whyte (Date Filed: 2/1/2008). Class Certification Motion Hearing set for 11/21/2008 09:00 AM in Courtroom 6, 4th Floor, San Jose. (Court Reporter Not Reported.) (jg, COURT STAFF) (Date Filed: 2/1/2008) (Entered: 02/11/2008)
112 Declaration of Jeffrey Neil Young Attaching Consent Forms filed byWilliam Syverson. (Attachments: # 1 Exhibit 1−90 −− Consent Forms)(Young, Jeffrey) (Filed on 2/8/2008) (Entered: 02/08/2008)
113 EXHIBITS re 112 Declaration in Support (Exhibits 91−180 −− Consent Forms) filed byWilliam Syverson. (Related document(s) 112 ) (Young, Jeffrey) (Filed on 2/8/2008) (Entered: 02/08/2008)
114 EXHIBITS re 112 Declaration in Support (Exhibits 181−270 −− Consent Forms) filed byWilliam Syverson. (Related document(s) 112 ) (Young, Jeffrey) (Filed on 2/8/2008) (Entered: 02/08/2008)
115 EXHIBITS re 112 Declaration in Support (Exhibits 271−355 −− Consent Forms) filed byWilliam Syverson. (Related document(s) 112 ) (Young, Jeffrey) (Filed on 2/8/2008) (Entered: 02/08/2008)
116 Letter from Alison B. Marshall Joint Letter Requesting Deferral of Scheduling Order. (Marshall, Alison) (Filed on 2/11/2008) (Entered: 02/11/2008)
118 ORDER Assigning Preparation of Discovery Plan to Magistrate Judge. Signed by Judge Ronald M. Whyte on 2/11/08. (jg, COURT STAFF) (Filed on 2/11/2008) (Entered: 02/11/2008)
119 STIPULATED PROTECTIVE ORDER re 111 . Signed by Judge Patricia V. Trumbull on 3/11/08. (pvtlc1) (Filed on 3/12/2008) (Entered: 03/12/2008)
120 Proposed Order Regarding Initial Phase of Discovery by International Business Machines Corporation. (Marshall, Alison) (Filed on 3/17/2008) (Entered: 03/17/2008)
121 APPLICATION of James E. Gauch for Admission Pro Hac Vice ( Filing fee $ 210, receipt number 54611003026) filed by International Business Machines Corporation. (dhm, COURT STAFF) (Filed on 4/23/2008) (Entered: 04/25/2008)
122 Proposed Order re 121 APPLICATION of James E. Gauch for Admission Pro Hac Vice ( Filing fee $ 210, receipt number 54611003026) by International Business Machines Corporation. (dhm, COURT STAFF) (Filed on 4/23/2008) (Entered: 04/25/2008)
123 ORDER by Judge Ronald M. Whyte Granting 121 Motion for Pro Hac Vice for Attorney James E. Gauch. (jg, COURT STAFF) (Filed on 4/28/2008) (Entered: 04/28/2008)
124 APPLICATION of Sarah B. McClure for Admission Pro Hac Vice ( Filing fee $ 210, receipt number 54611003145) filed by International Business Machines Corporation. (dhm, COURT STAFF) (Filed on 5/12/2008) (Entered: 05/14/2008)
125 Proposed Order re 124 APPLICATION of Sara B. McClure for Admission Pro Hac Vice ( Filing fee $ 210, receipt number 54611003145) by International Business Machines Corporation. (dhm, COURT STAFF) (Filed on 5/12/2008) (Entered: 05/14/2008)

Case: 5:03-cv-04529-RMW As of: 07/18/2010 08:39 AM PDT 22 of 35

05/12/2008 05/12/2008 05/13/2008 05/13/2008 05/15/2008 05/15/2008 05/15/2008 06/02/2008 06/03/2008 06/06/2008
06/26/2008 09/16/2008 09/16/2008 09/16/2008 09/16/2008 09/24/2008

126 APPLICATION of Deborah A. Sudbury for Admission Pro Hac Vice ( Filing fee $ 210, receipt number 54611003145) filed by International Business Machines Corporation. (dhm, COURT STAFF) (Filed on 5/12/2008) (dhm, COURT STAFF). (Entered: 05/14/2008)
127 Proposed Order re 126 APPLICATION of Deborah A. Sudbury for Admission Pro Hac Vice ( Filing fee $ 210, receipt number 54611003145) by International Business Machines Corporation. (dhm, COURT STAFF) (Filed on 5/12/2008) (Entered: 05/14/2008)
130 APPLICATION of Brian M. Jorgensen for Admission Pro Hac Vice ( Filing fee $ 210, receipt number 54611003171) filed by International Business Machines Corporation. (dhm, COURT STAFF) (Filed on 5/13/2008) (Entered: 05/15/2008)
131 Proposed Order re 130 APPLICATION of Brian M. Jorgensen for Admission Pro Hac Vice( Filing fee $ 210, receipt number 54611003171). (dhm, COURT STAFF) (Filed on 5/13/2008) (Entered: 05/15/2008)
128 ORDER by Judge Ronald M. Whyte Granting 126 Motion for Pro Hac Vice for Deborah A. Sudbury. (jg, COURT STAFF) (Filed on 5/15/2008) (Entered: 05/15/2008)
129 ORDER by Judge Ronald M. Whyte Granting 124 Motion for Pro Hac Vice for Sarah B. McClure. (jg, COURT STAFF) (Filed on 5/15/2008) (Entered: 05/15/2008)
132 ORDER by Judge Ronald M. Whyte Granting 130 Motion for Pro Hac Vice for Brian M. Jorgensen. (jg, COURT STAFF) (Filed on 5/15/2008) (Entered: 05/15/2008)
133 Proposed Order Regarding Initial Phase of Discovery by International Business Machines Corporation. (Marshall, Alison) (Filed on 6/2/2008) (Entered: 06/02/2008)
134 DISCOVERY PLAN ORDER for Initial Phase of Discovery re 120 and 133 . Signed by Judge Patricia V. Trumbull on 6/3/08. (pvtlc1) (Filed on 6/3/2008) (Entered: 06/03/2008)
135 STIPULATION Re: Continuance of 11/21/08 Class Certification Motion Hearing; [Proposed] Order Re: Same by International Business Machines Corporation. (Attachments: # 1 Signature Page (Declarations/Stipulations) Declaration of Alison B. Marshall re: Stipulation re: Continuance of 11/21/2008 Class Certification Motion Hearing)(Marshall, Alison) (Filed on 6/6/2008) (Entered: 06/06/2008)
136 STIPULATION AND ORDER 135 Re: Continuance of 11/21/08 Class Certification Motion Hearing: Motion Hearing set for 3/6/2009 09:00 AM in Courtroom 6, 4th Floor, San Jose. Signed by Judge Ronald M. Whyte on 3/26/08. (jg, COURT STAFF) (Filed on 6/26/2008) (Entered: 06/26/2008)
137 APPLICATION of Tonya M. Osborne for Admission Pro Hac Vice ( Filing fee $ 210, receipt number 54611003906) filed by International Business Machines Corporation. (dhm, COURT STAFF) (Filed on 9/16/2008) (Entered: 09/17/2008)
138 Proposed Order re 137 APPLICATION of Tonya M. Osborne for Admission Pro Hac Vice ( Filing fee $ 210, receipt number 54611003906.) by International Business Machines Corporation. (dhm, COURT STAFF) (Filed on 9/16/2008) (Entered: 09/17/2008)
139 APPLICATION of Carter DeLorme for Admission Pro Hac Vice ( Filing fee $ 210, receipt number 54611003906) filed by International Business Machines Corporation. (dhm, COURT STAFF) (Filed on 9/16/2008) (Entered: 09/17/2008)
140 Proposed Order re 139 APPLICATION of Carter DeLorme for Admission Pro Hac Vice ( Filing fee $ 210, receipt number 54611003906) by International Business Machines Corporation. (dhm, COURT STAFF) (Filed on 9/16/2008) (Entered: 09/17/2008)
141 ORDER by Judge Ronald M. Whyte Granting 137 Motion for Pro Hac Vice for Attorney Tonya M. Osborne. (jg, COURT STAFF) (Filed on 9/24/2008) (Entered:

Case: 5:03-cv-04529-RMW As of: 07/18/2010 08:39 AM PDT 23 of 35

09/24/2008 09/29/2008 09/29/2008 10/08/2008 10/09/2008 10/10/2008
10/10/2008
10/10/2008
10/10/2008 10/10/2008

09/24/2008)
142 ORDER by Judge Ronald M. Whyte Granting 139 Motion for Pro Hac Vice for Attorney Carter DeLorme. (jg, COURT STAFF) (Filed on 9/24/2008) (Entered: 09/24/2008)
143 APPLICATION of Hannah M. Breshin for Admission Pro Hac Vice ( Filing fee $ 210, receipt number 54611003970) filed by International Business Machines Corporation. (dhm, COURT STAFF) (Filed on 9/29/2008) (Entered: 10/01/2008)
144 Received Document re 143 APPLICATION of Hannah M. Breshin for Admission Pro Hac Vice ( Filing fee $ 210, receipt number 54611003970) by International Business Machines Corporation. (dhm, COURT STAFF) (Filed on 9/29/2008) (Entered: 10/01/2008)
145 Declaration of Jeffrey Neil Young Attaching Additional Consent Forms filed byWilliam Syverson. (Attachments: # 1 Exhibit 1−−Consent to Join of Jean LeBlanc, # 2 Exhibit 2−−−−Consent to Join of Christopher Kenyon, # 3 Exhibit 3−−−−Consent to Join of Joseph North)(Young, Jeffrey) (Filed on 10/8/2008) (Entered: 10/08/2008)
146 STIPULATION Request for Order Shortening Time on Motion to Strike Report of Plaintiffs' Expert, David Neumark by International Business Machines Corporation. (Attachments: # 1 Signature Page (Declarations/Stipulations) Declaration of Alison B. Marshall in Support of Stipulated Request for Order, # 2 Proposed Order)(Marshall, Alison) (Filed on 10/9/2008) (Entered: 10/09/2008)
147 MOTION to Seal Document DEFENDANT'S ADMINISTRATIVE MOTION TO FILE UNDER SEAL EXHIBITS 2, 3, 4, 5, 6, 10, AND 11 TO THE DECLARATION OF AARON L. AGENBROAD ESQ., IN SUPPORT OF DEFENDANTS MOTION TO STRIKE REPORT OF PLAINTIFFS EXPERT, DAVID NEUMARK, and THOSE PORTIONS OF THE MOTION TO STRIKE QUOTING AND SUMMARIZING THE CONFIDENTIAL EXHIBITS filed by International Business Machines Corporation. (Agenbroad, Aaron) (Filed on 10/10/2008) (Entered: 10/10/2008)
148 Declaration of AARON L. AGENBROAD in Support of 147 MOTION to Seal Document DEFENDANT'S ADMINISTRATIVE MOTION TO FILE UNDER SEAL EXHIBITS 2, 3, 4, 5, 6, 10, AND 11 TO THE DECLARATION OF AARON L. AGENBROAD ESQ., IN SUPPORT OF DEFENDANTS MOTION TO STRIKE REPORT OF PLAINTIFFS EXPERT, DAVID NEUMARK and THOSE PORTIONS OF THE MOTION TO STRIKE QUOTING AND SUMMARIZING THE CONFIDENTIAL EXHIBITS filed byInternational Business Machines Corporation. (Attachments: # 1 Exhibit A)(Related document(s) 147 ) (Agenbroad, Aaron) (Filed on 10/10/2008) (Entered: 10/10/2008)
149 Proposed Order re 147 MOTION to Seal Document DEFENDANT'S ADMINISTRATIVE MOTION TO FILE UNDER SEAL EXHIBITS 2, 3, 4, 5, 6, 10, AND 11 TO THE DECLARATION OF AARON L. AGENBROAD ESQ., IN SUPPORT OF DEFENDANTS MOTION TO STRIKE REPORT OF PLAINTIFFS EXPERT, DAVID NEUMARK and THOSE PORTIONS OF THE MOTION TO STRIKE QUOTING AND SUMMARIZING THE CONFIDENTIAL EXHIBITS by International Business Machines Corporation. (Agenbroad, Aaron) (Filed on 10/10/2008) (Entered: 10/10/2008)
150 MOTION to Strike REDACTED DEFENDANT'S MOTION TO STRIKE REPORT OF PLAINTIFFS' EXPERT, DAVID NEUMARK filed by International Business Machines Corporation. Motion Hearing set for 11/4/2008 10:00 AM in Courtroom #5, 4th Floor, San Jose. (Agenbroad, Aaron) (Filed on 10/10/2008) (Entered: 10/10/2008)
151 Declaration of AARON L. AGENBROAD in Support of 150 MOTION to Strike REDACTED DEFENDANT'S MOTION TO STRIKE REPORT OF PLAINTIFFS' EXPERT, DAVID NEUMARK filed byInternational Business Machines Corporation. (Attachments: # 1 Exhibit 1, 7, 8, 9, 12, 13, 14)(Related document(s) 150 ) (Agenbroad, Aaron) (Filed on 10/10/2008) (Entered: 10/10/2008)

Case: 5:03-cv-04529-RMW As of: 07/18/2010 08:39 AM PDT 24 of 35

10/10/2008 10/10/2008
10/10/2008
10/10/2008
10/14/2008 10/14/2008 10/14/2008 10/16/2008 10/16/2008 10/22/2008 10/22/2008 10/23/2008 10/24/2008 10/24/2008

152 Proposed Order re 150 MOTION to Strike REDACTED DEFENDANT'S MOTION TO STRIKE REPORT OF PLAINTIFFS' EXPERT, DAVID NEUMARK by International Business Machines Corporation. (Agenbroad, Aaron) (Filed on 10/10/2008) (Entered: 10/10/2008)
153 NOTICE by International Business Machines Corporation MANUAL FILING NOTIFICATION: UNREDACTED DEFENDANTS MOTION TO STRIKE REPORT OF PLAINTIFFS EXPERT, DAVID NEUMARK − DOCUMENTS SUBMITTED UNDER SEAL (Agenbroad, Aaron) (Filed on 10/10/2008) (Entered: 10/10/2008)
154 NOTICE by International Business Machines Corporation MANUAL FILING NOTIFICATION: EXHIBITS 2, 3, 4, 5, 6, 10 AND 11 TO THE DECLARATION OF AARON L. AGENBROAD, IN SUPPORT OF DEFENDANTS MOTION TO STRIKE REPORT OF PLAINTIFFS EXPERT, DAVID NEUMARK DOCUMENTS SUBMITTED UNDER SEAL (Agenbroad, Aaron) (Filed on 10/10/2008) (Entered: 10/10/2008)
155 CERTIFICATE OF SERVICE by International Business Machines Corporation re 147 MOTION to Seal Document DEFENDANT'S ADMINISTRATIVE MOTION TO FILE UNDER SEAL EXHIBITS 2, 3, 4, 5, 6, 10, AND 11 TO THE DECLARATION OF AARON L. AGENBROAD ESQ., IN SUPPORT OF DEFENDANTS MOTION TO STRIKE REPORT OF PLAINTIFFS EXPERT, DAVID NEUMARK (Agenbroad, Aaron) (Filed on 10/10/2008) (Entered: 10/10/2008)
Received Exhibits to Declaration SUBMITTED UNDER SEAL. (dhm, COURT STAFF) (Filed on 10/14/2008) (Entered: 10/14/2008)
Received Exhibits to Declaration SUBMITTED UNDER SEAL (dhm, COURT STAFF) (Filed on 10/14/2008) (Entered: 10/14/2008)
Received Motion SUBMITTED UNDER SEAL(dhm, COURT STAFF) (Filed on 10/14/2008) (Entered: 10/14/2008)
156 ORDER by Judge Patricia V. Trumbull Denying 147 Defendants Administrative Motion to File Certain Documents under Seal Without Prejudice to a Properly Supported Administrative Motion. (pvtlc1) (Filed on 10/16/2008) (Entered: 10/16/2008)
157 STIPULATION AND ORDER re 146 Request for Order Shortening Time on Motion to Strike Expert Report. Signed by Judge Patricia V. Trumbull on 10/16/08. (pvtlc1) (Filed on 10/16/2008) (Entered: 10/16/2008)
158 MOTION to Seal Certain Documents Relating to Pls' Opp. to Mtn. to Strike Expert Report of D. Nuemark filed by William Syverson. Motion Hearing set for 11/4/2008 10:00 AM in Courtroom #5, 4th Floor, San Jose. (Baller, Morris) (Filed on 10/22/2008) (Entered: 10/22/2008)
Received Opposition SUBMITTED UNDER SEAL (dhm, COURT STAFF) (Filed on 10/22/2008) (Entered: 10/23/2008)
159 NOTICE of Appearance by Rachel Elizabeth Brill (Brill, Rachel) (Filed on 10/23/2008) (Entered: 10/23/2008)
160 Letter from Aaron L. Agenbroad Regarding Withdraw of Administrative Motion to Seal and the Confidential Exhibits Lodged with the Court and Submission of Revised Exhibits Regarding Motion to Strike the Report of David Neumark. (Marshall, Alison) (Filed on 10/24/2008) (Entered: 10/24/2008)
161 Declaration of Aaron L. Agenbroad in Support of 150 MOTION to Strike REDACTED DEFENDANT'S MOTION TO STRIKE REPORT OF PLAINTIFFS' EXPERT, DAVID NEUMARK, 153 Notice (Other) filed byInternational Business Machines Corporation. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14)(Related document(s) 150 , 153 ) (Marshall, Alison) (Filed on 10/24/2008) (Entered: 10/24/2008)

Case: 5:03-cv-04529-RMW As of: 07/18/2010 08:39 AM PDT 25 of 35

10/29/2008
10/31/2008 11/03/2008 11/03/2008 11/03/2008 11/03/2008 11/03/2008 11/04/2008 11/05/2008 11/14/2008

162 Reply Memorandum re 150 MOTION to Strike REDACTED DEFENDANT'S MOTION TO STRIKE REPORT OF PLAINTIFFS' EXPERT, DAVID NEUMARK filed byInternational Business Machines Corporation. (Attachments: # 1 Declaration of Traci L. Lovitt in Support of Reply, # 2 Exhibit A to Declaration, # 3 Exhibit B to Declaration, # 4 Exhibit C to Declaration, # 5 Exhibit D to Declaration, # 6 Exhibit E to Declaration, # 7 Exhibit F to Declaration, # 8 Exhibit G to Declaration)(Marshall, Alison) (Filed on 10/29/2008) (Entered: 10/29/2008)
163 Letter from Jeffrey Young Requesting Telephone Access to Hearing. (Young, Jeffrey) (Filed on 10/31/2008) (Entered: 10/31/2008)
164 Letter from Morris J. Baller re 162 Defendant's Reply in Support of Motion to Strike Expert Report. (Baller, Morris) (Filed on 11/3/2008) Modified on 11/5/2008 linking entry to document #162 (dhm, COURT STAFF). (Entered: 11/03/2008)
165 ORDER Vacating Hearing on Defendant's Motion to Strike Expert Report and Setting Deadline for Defendant to File Unredacted Copy of Moving Brief. Signed by Judge Patricia V. Trumbull on 11/3/08. (pvtlc1) (Filed on 11/3/2008) (Entered: 11/03/2008)
166 ORDER by Judge Patricia V. Trumbull Denying 158 Plaintiffs' Administrative Motion to File Under Seal. (pvtlc1) (Filed on 11/3/2008) (Entered: 11/03/2008)
167 Memorandum in Opposition re 150 MOTION to Strike REDACTED DEFENDANT'S MOTION TO STRIKE REPORT OF PLAINTIFFS' EXPERT, DAVID NEUMARK filed byWilliam Syverson. (Baller, Morris) (Filed on 11/3/2008) (Entered: 11/03/2008)
168 MOTION to Strike 161 Declaration in Support,, Report of Plaintiffs' Expert David Neumark filed by International Business Machines Corporation. Motion Hearing set for 11/4/2008 10:00 AM in Courtroom #5, 4th Floor, San Jose. (Agenbroad, Aaron) (Filed on 11/3/2008) (Entered: 11/03/2008)
169 RESPONSE to re 164 Letter Baller re Defendant's Reply MPA in Support of Motion to Strike Expert Report by International Business Machines Corporation. (Agenbroad, Aaron) (Filed on 11/4/2008) (Entered: 11/04/2008)
170 ORDER by Judge Patricia V. Trumbull Denying 150 Defendant's Motion to Strike Expert Report. (pvtlc1) (Filed on 11/5/2008) (Entered: 11/05/2008)
171 MOTION for Summary Judgment on Statute of Limitations &Procedural Grounds filed by International Business Machines Corporation. Motion Hearing set for 3/6/2009 09:00 AM in Courtroom 6, 4th Floor, San Jose. (Attachments: # 1 Declaration of Thomas Chiavetta, Jr. in Support of Motion, # 2 Exhibit to Thomas Chiavetta, Jr. Declaration in Support, # 3 Declaration of Traci Lovitt in Support of Motion, # 4 Exhibit 1−25 to Traci Lovitt Declaration in Support of Motion, # 5 Exhibit 26−50 to Traci Lovitt Declaration in Support of Motion, # 6 Exhibit 51−75 to Traci Lovitt Declaration in Support of Motion, # 7 Exhibit 76−103 to Traci Lovitt Declaration in Support of Motion, # 8 Declaration of Alison Marshall in Support of Motion, # 9 Exhibit 1 to Marshall Declaration, # 10 Exhibit 2 to Marshall Declaration, # 11 Exhibit 3 to Marshall Declaration, # 12 Exhibit 4 to Marshall Declaration, # 13 Exhibit 5 to Marshall Declaration, # 14 Exhibit 6 to Marshall Declaration, # 15 Exhibit 7 to Marshall Declaration, # 16 Exhibit 8 to Marshall Declaration, # 17 Exhibit 9 to Marshall Declaration, # 18 Exhibit 10 to Marshall Declaration, # 19 Exhibit 11 to Marshall Declaration, # 20 Exhibit 12 to Marshall Declaration, # 21 Exhibit 13 to Marshall Declaration, # 22 Exhibit 14 to Marshall Declaration, # 23 Exhibit 15 to Marshall Declaration, # 24 Exhibit 16 to Marshall Declaration, # 25 Exhibit 17 to Marshall Declaration, # 26 Exhibit 18 to Marshall Declaration, # 27 Exhibit 19 to Marshall Declaration, # 28 Exhibit 20 to Marshall Declaration, # 29 Exhibit 21 to Marshall Declaration, # 30 Exhibit 22 to Marshall Declaration, # 31 Exhibit 24 to Marshall Declaration, # 32 Exhibit 25 to Marshall Declaration, # 33 Exhibit 26 to Marshall Declaration, # 34 Exhibit 27−Part 1 to Marshall Declaration, # 35 Exhibit 27−Part 2 to Marshall Declaration, # 36 Exhibit 27−Part 3 to Marshall Declaration, # 37 Exhibit 28 to Marshall Declaration, # 38 Proposed Order, # 39 Exhibit 23 to Marshall Declaration)(Marshall, Alison) (Filed on 11/14/2008) (Entered: 11/14/2008)

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172 MOTION to Certify Class filed by William Syverson. Motion Hearing set for 3/6/2009 09:00 AM in Courtroom 6, 4th Floor, San Jose. (Attachments: # 1 Affidavit Declaration of Scott G. Grimes, # 2 Exhibit Grimes Decl. Exhs. 1−6, # 3 Exhibit Grimes Decl. Exh. 7, # 4 Exhibit Grimes Decl. Exhs. 8−16, # 5 Exhibit Grimes Decl. Exhs 17−20, # 6 Exhibit Grimes Decl Exhs. 21−25, # 7 Exhibit Grimes Decl Exhs. 26−37, # 8 Exhibit Grimes Decl Exhs. 38−54, # 9 Exhibit Grimes Decl Exhs. 55−59, # 10 Exhibit Grimes Decl Exhs. 60−63, # 11 Errata Grimes Decl Exhs. 64−66, # 12 Exhibit Grimes Decl Exhs. 67−78, # 13 Affidavit Declaration of Jeffrey Neil Young, # 14 Appendix Appendix of Plaintiff Declarations, 1−20, # 15 Appendix Appendix of Plaintiff Decls., 21−40, # 16 Appendix Appendix of Plaintiff Decls., 41−50, # 17 Proposed Order Proposed Order)(Demchak, Teresa) (Filed on 11/14/2008) (Entered: 11/14/2008)
173 MOTION for Summary Judgment on the Claims of Plaintiff Rolf Marsh; Memorandum in Support of Motion filed by International Business Machines Corporation. Motion Hearing set for 3/6/2009 09:00 AM in Courtroom 6, 4th Floor, San Jose. (Attachments: # 1 Proposed Order)(Agenbroad, Aaron) (Filed on 11/14/2008) (Entered: 11/14/2008)
174 Declaration of Kim Ryan in Support of 173 MOTION for Summary Judgment on the Claims of Plaintiff Rolf Marsh; Memorandum in Support of Motion filed byInternational Business Machines Corporation. (Related document(s) 173 ) (Agenbroad, Aaron) (Filed on 11/14/2008) (Entered: 11/14/2008)
175 Declaration of Roderick Hester in Support of 173 MOTION for Summary Judgment on the Claims of Plaintiff Rolf Marsh; Memorandum in Support of Motion filed byInternational Business Machines Corporation. (Related document(s) 173 ) (Agenbroad, Aaron) (Filed on 11/14/2008) (Entered: 11/14/2008)
176 Declaration of Brian Jorgensen in Support of 173 MOTION for Summary Judgment on the Claims of Plaintiff Rolf Marsh; Memorandum in Support of Motion filed byInternational Business Machines Corporation. (Attachments: # 1 Exhibit A, # 2 Exhibit B−O)(Related document(s) 173 ) (Agenbroad, Aaron) (Filed on 11/14/2008) (Entered: 11/14/2008)
177 Declaration of Lee McNally in Support of 173 MOTION for Summary Judgment on the Claims of Plaintiff Rolf Marsh; Memorandum in Support of Motion filed byInternational Business Machines Corporation. (Attachments: # 1 Exhibit A)(Related document(s) 173 ) (Agenbroad, Aaron) (Filed on 11/14/2008) (Entered: 11/14/2008)
178 Declaration of Pamela Vasquez in Support of 173 MOTION for Summary Judgment on the Claims of Plaintiff Rolf Marsh; Memorandum in Support of Motion filed byInternational Business Machines Corporation. (Attachments: # 1 Exhibit A−B)(Related document(s) 173 ) (Agenbroad, Aaron) (Filed on 11/14/2008) (Entered: 11/14/2008)
179 ERRATA re 175 Declaration in Support, 178 Declaration in Support, 174 Declaration in Support, 177 Declaration in Support, Kim Ryan, Roderick Hester, Lee McNally, and Pamela Vasquez in Support of Defendant's Motion for Summary Judgment on Rolf Marsh's Claims by International Business Machines Corporation. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Agenbroad, Aaron) (Filed on 11/14/2008) (Entered: 11/14/2008)
180 STIPULATION Re: Enlargement of Time for Plaintiffs to Respond to Defendant's Motion for Summary Judgment on the Claims of Plaintiff Rolf Marsh; [proposed] Order Re: Same by William Syverson. (Young, Jeffrey) (Filed on 12/19/2008) (Entered: 12/19/2008)
181 Memorandum in Opposition re 172 MOTION to Certify Class to Plaintiffs' Motion for an Order Granting Provisional Certification of Collective Action and Notice Thereof to Potential Putative Opt−In Plaintiffs filed byInternational Business Machines Corporation. (Attachments: # 1 Appendix of Declarations in Support of Defendant's Opposition to Plaintiff's Motion for An Order Provisionally Certifying a Class, # 2 Appendix of Excerpted Deposition Testimony Offered in Support of Defendant's Opposition to Plaintiff's Motion for An Order Provisionally Certifying a Class, # 3 Appendix Glossary of Selected Resource Action Titles and Codes

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Offered as Reference to Defendant's Opposition to Plaintiff's Motion for An Order Provisionally Certifying a Class, # 4 Proposed Order [Proposed] Order)(Marshall, Alison) (Filed on 12/19/2008) (Entered: 12/19/2008)
182 MOTION to Seal Document 181 Memorandum in Opposition,,, Defendant's Administrative Motion to File Under Seal Portions of Exhibits Filed in Support of Defendant's Opposition to Plaintiffs' Motion for an Order Provisionally Certifying A Class filed by International Business Machines Corporation. (Attachments: # 1 Exhibit Manual Filing Notifications for Documents to Be Sealed, # 2 Proposed Order, # 3 Exhibit Proof of Service)(Agenbroad, Aaron) (Filed on 12/19/2008) (Entered: 12/19/2008)
183 Declaration of R. Scott Medsker in Support of 181 Memorandum in Opposition,,, to Plaintiffs' Motion for an Order Provisionally Certifying a Class filed byInternational Business Machines Corporation. (Attachments: # 1 Exhibit A−D, # 2 Exhibit E−F, # 3 Exhibit G−M, # 4 Exhibit N−P, # 5 Exhibit Q−T, # 6 Exhibit U−Y, # 7 Exhibit Z, # 8 Exhibit AA−KK, # 9 Exhibit LL−UU, # 10 Exhibit VV−ZZ, # 11 Exhibit AAA−QQQ)(Related document(s) 181 ) (Marshall, Alison) (Filed on 12/19/2008) (Entered: 12/19/2008)
184 Declaration of Aaron L. Agenbroad in Support of 182 MOTION to Seal Document 181 Memorandum in Opposition,,, Defendant's Administrative Motion to File Under Seal Portions of Exhibits Filed in Support of Defendant's Opposition to Plaintiffs' Motion for an Order Provisionally Certify MOTION to Seal Document 181 Memorandum in Opposition,,, Defendant's Administrative Motion to File Under Seal Portions of Exhibits Filed in Support of Defendant's Opposition to Plaintiffs' Motion for an Order Provisionally Certify filed byInternational Business Machines Corporation. (Attachments: # 1 Exhibit A)(Related document(s) 182 ) (Agenbroad, Aaron) (Filed on 12/19/2008) (Entered: 12/19/2008)
185 Declaration of Diane Adams in Support of 181 Memorandum in Opposition,,, to Plaintiffs' Motion for an Order Provisionally Certifying a Class filed byInternational Business Machines Corporation. (Related document(s) 181 ) (Marshall, Alison) (Filed on 12/19/2008) (Entered: 12/19/2008)
186 Declaration of Gregory Akiki in Support of 181 Memorandum in Opposition,,, to Plaintiffs' Motion for an Order Provisionally Certifying a Class filed byInternational Business Machines Corporation. (Related document(s) 181 ) (Marshall, Alison) (Filed on 12/19/2008) (Entered: 12/19/2008)
187 Declaration of Basheer Alim in Support of 181 Memorandum in Opposition,,, to Plaintiffs' Motion for an Order Provisionally Certifying a Class filed byInternational Business Machines Corporation. (Related document(s) 181 ) (Marshall, Alison) (Filed on 12/19/2008) (Entered: 12/19/2008)
188 Declaration of Hiawatha Anthony in Support of 181 Memorandum in Opposition,,, to Plaintiffs' Motion for an Order Provisionally Certifying a Class filed byInternational Business Machines Corporation. (Related document(s) 181 ) (Marshall, Alison) (Filed on 12/19/2008) (Entered: 12/19/2008)
189 Declaration of James Ballard in Support of 181 Memorandum in Opposition,,, to Plaintiffs' Motion for an Order Provisionally Certifying a Class filed byInternational Business Machines Corporation. (Related document(s) 181 ) (Marshall, Alison) (Filed on 12/19/2008) (Entered: 12/19/2008)
190 Declaration of James Bleier in Support of 181 Memorandum in Opposition,,, to Plaintiffs' Motion for an Order Provisionally Certifying a Class filed byInternational Business Machines Corporation. (Related document(s) 181 ) (Marshall, Alison) (Filed on 12/19/2008) (Entered: 12/19/2008)
191 Declaration of William Cicerone in Support of 181 Memorandum in Opposition,,, to Plaintiffs' Motion for an Order Provisionally Certifying a Class filed byInternational Business Machines Corporation. (Related document(s) 181 ) (Marshall, Alison) (Filed on 12/19/2008) (Entered: 12/19/2008)
192 Declaration of Timothy Clark in Support of 181 Memorandum in Opposition,,, to Plaintiffs' Motion for an Order Provisionally Certifying a Class filed

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byInternational Business Machines Corporation. (Related document(s) 181 ) (Marshall, Alison) (Filed on 12/19/2008) (Entered: 12/19/2008)
193 MOTION in Limine to Exclude the Report and Testimony of Dr. David Neumark filed by International Business Machines Corporation. Motion Hearing set for 3/6/2009 09:00 AM in Courtroom 6, 4th Floor, San Jose. (Attachments: # 1 Declaration of Thomas Chiavetta in Support of Def.'s Motion, # 2 Exhibit A to Chiavetta Declaration, # 3 Exhibit B to Chiavetta Declaration, # 4 Exhibit C to Chiavetta Declaration, # 5 Exhibit D to Chiavetta Declaration, # 6 Exhibit E to Chiavetta Declaration, # 7 Proposed Order)(Agenbroad, Aaron) (Filed on 12/19/2008) (Entered: 12/19/2008)
194 Declaration of Stephen Colacchio in Support of 181 Memorandum in Opposition,,, to Plaintiffs' Motion for an Order Provisionally Certifying a Class filed byInternational Business Machines Corporation. (Related document(s) 181 ) (Marshall, Alison) (Filed on 12/19/2008) (Entered: 12/19/2008)
195 Opposition to 171 Defendant's Motion for Summary Judgment on Statute of Limitations and Procedural Grounds filed byWilliam Syverson. (Demchak, Teresa) (Filed on 12/19/2008) Modified on 1/5/2009, counsel failed to link entry to document #171 (dhm, COURT STAFF). (Entered: 12/19/2008)
196 Declaration of Tracy Corrigan in Support of 181 Memorandum in Opposition,,, to Plaintiffs' Motion for an Order Provisionally Certifying a Class filed byInternational Business Machines Corporation. (Related document(s) 181 ) (Marshall, Alison) (Filed on 12/19/2008) (Entered: 12/19/2008)
197 Declaration of Charles Lickel in Support of 181 Memorandum in Opposition,,, to Plaintiffs' Motion for an Order Provisionally Certifying a Class filed byInternational Business Machines Corporation. (Related document(s) 181 ) (Nasser, Catherine) (Filed on 12/19/2008) (Entered: 12/19/2008)
198 Declaration of Bruce Lindner in Support of 181 Memorandum in Opposition,,, to Plaintiffs' Motion for an Order Provisionally Certifying a Class filed byInternational Business Machines Corporation. (Related document(s) 181 ) (Nasser, Catherine) (Filed on 12/19/2008) (Entered: 12/19/2008)
199 Declaration of Steven Loy in Support of 181 Memorandum in Opposition,,, to Plaintiffs' Motion for an Order Provisionally Certifying a Class filed byInternational Business Machines Corporation. (Related document(s) 181 ) (Nasser, Catherine) (Filed on 12/19/2008) (Entered: 12/19/2008)
200 Declaration of Heather M. Mills in Support of 195 Memorandum in Opposition filed byWilliam Syverson. (Attachments: # 1 Exhibit 1−14, # 2 Exhibit 15 part 1, # 3 Exhibit 15 part 2)(Related document(s) 195 ) (Demchak, Teresa) (Filed on 12/19/2008) (Entered: 12/19/2008)
201 Declaration of Mark Cronk in Support of 181 Memorandum in Opposition,,, to Plaintiffs' Motion for an Order Provisionally Certifying a Class filed byInternational Business Machines Corporation. (Related document(s) 181 ) (Marshall, Alison) (Filed on 12/19/2008) (Entered: 12/19/2008)
202 Declaration of Stephen Luce in Support of 181 Memorandum in Opposition,,, to Plaintiffs' Motion for an Order Provisionally Certifying a Class filed byInternational Business Machines Corporation. (Related document(s) 181 ) (Nasser, Catherine) (Filed on 12/19/2008) (Entered: 12/19/2008)
203 Declaration of Brett MacIntyre in Support of 181 Memorandum in Opposition,,, to Plaintiffs' Motion for an Order Provisionally Certifying a Class filed byInternational Business Machines Corporation. (Related document(s) 181 ) (Nasser, Catherine) (Filed on 12/19/2008) (Entered: 12/19/2008)
204 Declaration of Lori Cummings in Support of 181 Memorandum in Opposition,,, to Plaintiffs' Motion for an Order Provisionally Certifying a Class filed byInternational Business Machines Corporation. (Related document(s) 181 ) (Marshall, Alison) (Filed on 12/19/2008) (Entered: 12/19/2008)

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205 Declaration of Lee Deshler in Support of 195 Memorandum in Opposition Deshler Declaration with Exhibits filed byWilliam Syverson. (Related document(s) 195 ) (Demchak, Teresa) (Filed on 12/19/2008) (Entered: 12/19/2008)
206 Declaration of Ronald Dombroski in Support of 181 Memorandum in Opposition,,, to Plaintiffs' Motion for an Order Provisionally Certifying a Class filed byInternational Business Machines Corporation. (Related document(s) 181 ) (Marshall, Alison) (Filed on 12/19/2008) (Entered: 12/19/2008)
207 Declaration of Anthony MacMahon in Support of 181 Memorandum in Opposition,,, to Plaintiffs' Motion for an Order Provisionally Certifying a Class filed byInternational Business Machines Corporation. (Related document(s) 181 ) (Nasser, Catherine) (Filed on 12/19/2008) (Entered: 12/19/2008)
208 Declaration of Robert Flowers in Support of 195 Memorandum in Opposition Flowers Declaration with Exhibits filed byWilliam Syverson. (Related document(s) 195 ) (Demchak, Teresa) (Filed on 12/19/2008) (Entered: 12/19/2008)
209 Declaration of Gregory Dubose in Support of 181 Memorandum in Opposition,,, to Plaintiffs' Motion for an Order Provisionally Certifying a Class filed byInternational Business Machines Corporation. (Related document(s) 181 ) (Marshall, Alison) (Filed on 12/19/2008) (Entered: 12/19/2008)
210 Declaration of Michael McCarthy in Support of 181 Memorandum in Opposition,,, to Plaintiffs' Motion for an Order Provisionally Certifying a Class filed byInternational Business Machines Corporation. (Related document(s) 181 ) (Nasser, Catherine) (Filed on 12/19/2008) (Entered: 12/19/2008)
211 Declaration of James S. Payne in Support of 195 Memorandum in Opposition James S. Payne Declaration with Exhibits filed byWilliam Syverson. (Related document(s) 195 ) (Demchak, Teresa) (Filed on 12/19/2008) (Entered: 12/19/2008)
212 Declaration of Kieran McGrath in Support of 181 Memorandum in Opposition,,, to Plaintiffs' Motion for an Order Provisionally Certifying a Class filed byInternational Business Machines Corporation. (Related document(s) 181 ) (Nasser, Catherine) (Filed on 12/19/2008) (Entered: 12/19/2008)
213 Declaration of Cathy Edwards in Support of 181 Memorandum in Opposition,,, to Plaintiffs' Motion for an Order Provisionally Certifying a Class filed byInternational Business Machines Corporation. (Related document(s) 181 ) (Marshall, Alison) (Filed on 12/19/2008) (Entered: 12/19/2008)
214 Declaration of Thomas Fleming in Support of 181 Memorandum in Opposition,,, to Plaintiffs' Motion for an Order Provisionally Certifying a Class filed byInternational Business Machines Corporation. (Related document(s) 181 ) (Marshall, Alison) (Filed on 12/19/2008) (Entered: 12/19/2008)
215 Declaration of Dale Miller in Support of 181 Memorandum in Opposition,,, to Plaintiffs' Motion for an Order Provisionally Certifying a Class filed byInternational Business Machines Corporation. (Related document(s) 181 ) (Nasser, Catherine) (Filed on 12/19/2008) (Entered: 12/19/2008)
216 Declaration of Kevin O'Reilly in Support of 181 Memorandum in Opposition,,, to Plaintiffs' Motion for an Order Provisionally Certifying a Class filed byInternational Business Machines Corporation. (Related document(s) 181 ) (Nasser, Catherine) (Filed on 12/19/2008) (Entered: 12/19/2008)
217 Declaration of Harriet Pearson in Support of 181 Memorandum in Opposition,,, to Plaintiffs' Motion for an Order Provisionally Certifying a Class filed byInternational Business Machines Corporation. (Related document(s) 181 ) (Nasser, Catherine) (Filed on 12/19/2008) (Entered: 12/19/2008)
218 Declaration of Frank Fontana in Support of 181 Memorandum in Opposition,,, to Plaintiffs' Motion for an Order Provisionally Certifying a Class filed byInternational Business Machines Corporation. (Attachments: # 1 Exhibit 1−17, # 2 Exhibit 18−27, # 3 Exhibit 28−32, # 4 Exhibit 33−41, # 5 Exhibit 42−48, # 6 Exhibit 49−60, # 7 Exhibit 61−73)(Related document(s) 181 ) (Marshall, Alison) (Filed on 12/19/2008) (Entered: 12/19/2008)

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219 Declaration of Helen Perlick in Support of 181 Memorandum in Opposition,,, to Plaintiffs' Motion for an Order Provisionally Certifying a Class filed byInternational Business Machines Corporation. (Related document(s) 181 ) (Nasser, Catherine) (Filed on 12/19/2008) (Entered: 12/19/2008)
220 Declaration of Robert Fuller in Support of 181 Memorandum in Opposition,,, to Plaintiffs' Motion for an Order Provisionally Certifying a Class filed byInternational Business Machines Corporation. (Related document(s) 181 ) (Marshall, Alison) (Filed on 12/19/2008) (Entered: 12/19/2008)
221 Declaration of Michael Gruver in Support of 181 Memorandum in Opposition,,, to Plaintiffs' Motion for an Order Provisionally Certifying a Class filed byInternational Business Machines Corporation. (Related document(s) 181 ) (Marshall, Alison) (Filed on 12/19/2008) (Entered: 12/19/2008)
222 Declaration of Bruce Petz in Support of 181 Memorandum in Opposition,,, to Plaintiffs' Motion for an Order Provisionally Certifying a Class filed byInternational Business Machines Corporation. (Related document(s) 181 ) (Nasser, Catherine) (Filed on 12/19/2008) (Entered: 12/19/2008)
223 Declaration of William Poveromo in Support of 181 Memorandum in Opposition,,, to Plaintiffs' Motion for an Order Provisionally Certifying a Class filed byInternational Business Machines Corporation. (Related document(s) 181 ) (Nasser, Catherine) (Filed on 12/19/2008) (Entered: 12/19/2008)
224 Declaration of David Robideau in Support of 181 Memorandum in Opposition,,, to Plaintiffs' Motion for an Order Provisionally Certifying a Class filed byInternational Business Machines Corporation. (Related document(s) 181 ) (Nasser, Catherine) (Filed on 12/19/2008) (Entered: 12/19/2008)
225 Declaration of Deborah Harris in Support of 181 Memorandum in Opposition,,, to Plaintiffs' Motion for an Order Provisionally Certifying a Class filed byInternational Business Machines Corporation. (Related document(s) 181 ) (Marshall, Alison) (Filed on 12/19/2008) (Entered: 12/19/2008)
226 Declaration of Steven Selbst in Support of 181 Memorandum in Opposition,,, to Plaintiffs' Motion for an Order Provisionally Certifying a Class filed byInternational Business Machines Corporation. (Related document(s) 181 ) (Nasser, Catherine) (Filed on 12/19/2008) (Entered: 12/19/2008)
227 Declaration of Scott Grimes in Support of 195 Memorandum in Opposition filed byWilliam Syverson. (Attachments: # 1 Exhibit 0A−11, # 2 Exhibit 012−027, # 3 Exhibit 028−037, # 4 Exhibit 038−046, # 5 Exhibit 047−058, # 6 Exhibit 059−068, # 7 Exhibit 069−083, # 8 Exhibit 084−098, # 9 Exhibit 099−111, # 10 Exhibit 112−114, # 11 Exhibit 115−128, # 12 Exhibit 129−139, # 13 Exhibit 140−142)(Related document(s) 195 ) (Demchak, Teresa) (Filed on 12/19/2008) (Entered: 12/19/2008)
228 Declaration of Robert Topel in Support of 181 Memorandum in Opposition,,, to Plaintiffs' Motion for an Order Provisionally Certifying a Class filed byInternational Business Machines Corporation. (Attachments: # 1 Exhibit A−C, # 2 Exhibit D−E)(Related document(s) 181 ) (Nasser, Catherine) (Filed on 12/19/2008) (Entered: 12/19/2008)
229 Declaration of Kenneth Torino in Support of 181 Memorandum in Opposition,,, to Plaintiffs' Motion for an Order Provisionally Certifying a Class filed byInternational Business Machines Corporation. (Related document(s) 181 ) (Nasser, Catherine) (Filed on 12/19/2008) (Entered: 12/19/2008)
230 Declaration of Mary White in Support of 181 Memorandum in Opposition,,, to Plaintiffs' Motion for an Order Provisionally Certifying a Class filed byInternational Business Machines Corporation. (Related document(s) 181 ) (Nasser, Catherine) (Filed on 12/19/2008) (Entered: 12/19/2008)
231 Declaration of Anita Karlsson−Dion in Support of 181 Memorandum in Opposition,,, to Plaintiffs' Motion for an Order Provisionally Certifying a Class filed byInternational Business Machines Corporation. (Attachments: # 1 Exhibit 1, # 2 Exhibit 1−A, # 3 Exhibit 2−6)(Related document(s) 181 ) (Marshall, Alison)

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(Filed on 12/19/2008) (Entered: 12/19/2008)
232 Declaration of Martin Wiele in Support of 181 Memorandum in Opposition,,, to Plaintiffs' Motion for an Order Provisionally Certifying a Class filed byInternational Business Machines Corporation. (Related document(s) 181 ) (Nasser, Catherine) (Filed on 12/19/2008) (Entered: 12/19/2008)
233 Declaration of Warren Hart in Support of 181 Memorandum in Opposition,,, to Plaintiffs' Motion for an Order Provisionally Certifying a Class filed byInternational Business Machines Corporation. (Related document(s) 181 ) (Marshall, Alison) (Filed on 12/19/2008) (Entered: 12/19/2008)
234 Declaration of Peter Wu in Support of 181 Memorandum in Opposition,,, to Plaintiffs' Motion for an Order Provisionally Certifying a Class filed byInternational Business Machines Corporation. (Related document(s) 181 ) (Nasser, Catherine) (Filed on 12/19/2008) (Entered: 12/19/2008)
235 Declaration of Thomas Hughes in Support of 181 Memorandum in Opposition,,, to Plaintiffs' Motion for an Order Provisionally Certifying a Class filed byInternational Business Machines Corporation. (Related document(s) 181 ) (Marshall, Alison) (Filed on 12/19/2008) (Entered: 12/19/2008)
236 Declaration of Tim Hurlbut in Support of 181 Memorandum in Opposition,,, to Plaintiffs' Motion for an Order Provisionally Certifying a Class filed byInternational Business Machines Corporation. (Related document(s) 181 ) (Marshall, Alison) (Filed on 12/19/2008) (Entered: 12/19/2008)
237 Declaration of Helen Yee in Support of 181 Memorandum in Opposition,,, to Plaintiffs' Motion for an Order Provisionally Certifying a Class filed byInternational Business Machines Corporation. (Related document(s) 181 ) (Nasser, Catherine) (Filed on 12/19/2008) (Entered: 12/19/2008)
238 Declaration of Eileen Inglis in Support of 181 Memorandum in Opposition,,, to Plaintiffs' Motion for an Order Provisionally Certifying a Class filed byInternational Business Machines Corporation. (Related document(s) 181 ) (Marshall, Alison) (Filed on 12/19/2008) (Entered: 12/19/2008)
239 Declaration of David M. Jackson in Support of 181 Memorandum in Opposition,,, to Plaintiffs' Motion for an Order Provisionally Certifying a Class filed byInternational Business Machines Corporation. (Related document(s) 181 ) (Marshall, Alison) (Filed on 12/19/2008) (Entered: 12/19/2008)
240 Declaration of Rangarajan Jagannathan in Support of 181 Memorandum in Opposition,,, to Plaintiffs' Motion for an Order Provisionally Certifying a Class filed byInternational Business Machines Corporation. (Related document(s) 181 ) (Marshall, Alison) (Filed on 12/19/2008) (Entered: 12/19/2008)
241 Declaration of Kathryn Kershner in Support of 181 Memorandum in Opposition,,, to Plaintiffs' Motion for an Order Provisionally Certifying a Class filed byInternational Business Machines Corporation. (Related document(s) 181 ) (Marshall, Alison) (Filed on 12/19/2008) (Entered: 12/19/2008)
242 Declaration of Eric Ketzel in Support of 181 Memorandum in Opposition,,, to Plaintiffs' Motion for an Order Provisionally Certifying a Class filed byInternational Business Machines Corporation. (Related document(s) 181 ) (Marshall, Alison) (Filed on 12/19/2008) (Entered: 12/19/2008)
243 Declaration of Steve Kozlowski in Support of 181 Memorandum in Opposition,,, to Plaintiffs' Motion for an Order Provisionally Certifying a Class filed byInternational Business Machines Corporation. (Related document(s) 181 ) (Marshall, Alison) (Filed on 12/19/2008) (Entered: 12/19/2008)
244 Declaration of Thomas Laskowski in Support of 181 Memorandum in Opposition,,, to Plaintiffs' Motion for an Order Provisionally Certifying a Class filed byInternational Business Machines Corporation. (Attachments: # 1 Exhibit 1−6, # 2 Exhibit 7−10, # 3 Exhibit 11−16, # 4 Exhibit 17−19, # 5 Exhibit 20−25, # 6 Exhibit 26−30, # 7 Exhibit 31−35, # 8 Exhibit 36−40, # 9 Exhibit 41−46, # 10 Exhibit 47−50, # 11 Exhibit 51−56, # 12 Exhibit 57−60, # 13 Exhibit 61−65, # 14

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Exhibit 66−70, # 15 Exhibit 71−76, # 16 Exhibit 77−98, # 17 Exhibit 99−108, # 18 Exhibit 109−123)(Related document(s) 181 ) (Marshall, Alison) (Filed on 12/19/2008) Modified on 12/23/2008 (dhm, COURT STAFF). (Entered: 12/19/2008)
245 MOTION in Limine to Exclude the Report and Testimony of Dr. Richard Drogin filed by International Business Machines Corporation. Motion Hearing set for 3/6/2009 09:00 AM in Courtroom 6, 4th Floor, San Jose. (Attachments: # 1 Declaration of Thomas Chiavetta, # 2 Exhibit A to Chiavetta Declaration, # 3 Exhibit B to Chiavetta Declaration, # 4 Exhibit C to Chiavetta Declaration, # 5 Exhibit D to Chiavetta Declaration, # 6 Exhibit E to Chiavetta Declaration, # 7 Exhibit F to Chiavetta Declaration, # 8 Exhibit G to Chiavetta Declaration, # 9 Exhibit H to Chiavetta Declaration, # 10 Exhibit I to Chiavetta Declaration, # 11 Exhibit J to Chiavetta Declaration, # 12 Exhibit K to Chiavetta Declaration, # 13 Proposed Order)(Agenbroad, Aaron) (Filed on 12/19/2008) (Entered: 12/19/2008)
246 REDACTED EXHIBITS 2−13,16−21,23−48,50−52,54,58,60,62,67,71−73 to 218 the Declaration of Frank Fontana, filed by International Business Machines Corporation. (Related document(s) 218 ) (dhm, COURT STAFF) (Filed on 12/19/2008) (Entered: 12/23/2008)
247 REDACTED EXHIBITS 1−13 to 185 the Declaration of Diane Adams, filed by International Business Machines Corporation. (Related document(s) 185 ) (dhm, COURT STAFF) (Filed on 12/19/2008) (Entered: 12/23/2008)
248 REDACTED EXHIBITS 77−79, 81,83−86,88−93,95−123 to 244 the Declaration of Thomas Laskowski filed by International Business Machines Corporation. (Related document(s) 244 ) (dhm, COURT STAFF) (Filed on 12/19/2008) (Entered: 12/23/2008)
249 EXHIBIT 1 to 215 the Declaration of Dale Miller, filed by International Business Machines Corporation. (Related document(s) 215 ) (dhm, COURT STAFF) (Filed on 12/19/2008) (Entered: 12/23/2008)
250 REDACTED EXHIBIT 1 to 210 the Declaration of Michael McCarthy, filed by International Business Machines Corporation. (Related document(s) 210 ) (dhm, COURT STAFF) (Filed on 12/19/2008) (Entered: 12/23/2008)
251 REDACTED EXHIBIT 1 to 202 the Declaration of Stephen Luce, filed by International Business Machines Corporation. (Related document(s) 202 ) (dhm, COURT STAFF) (Filed on 12/19/2008) (Entered: 12/23/2008)
252 REDACTED EXHIBITS 1 through 12 to 232 the Declaration of Martin Wiele filed by International Business Machines Corporation. (Related document(s) 232 ) (dhm, COURT STAFF) (Filed on 12/19/2008) (Entered: 12/23/2008)
260 REDACTED EXHIBIT 1 to 207 the Declaration of Anthony MacMahon filed by International Business Machines Corporation. (Related document(s) 207 ) (dhm, COURT STAFF) (Filed on 12/19/2008) (Entered: 12/30/2008)
261 REDACTED EXHIBIT 1 to 213 Declaration of Cathy Edwards, filed by International Business Machines Corporation. (Related document(s) 213 ) (dhm, COURT STAFF) (Filed on 12/19/2008) (Entered: 12/30/2008)
262 REDACTED EXHIBIT 1 to 229 the Declaration of Kenneth Torino filed by International Business Machines Corporation. (Related document(s) 229 ) (dhm, COURT STAFF) (Filed on 12/19/2008) (Entered: 12/30/2008)
263 REDACTED EXHIBIT 1 to 230 Declaration of Mary White, filed by International Business Machines Corporation. (Related document(s) 230 ) (dhm, COURT STAFF) (Filed on 12/19/2008) (Entered: 12/30/2008)
264 REDACTED EXHIBITS 1 and 3 to 235 Declaration of Thomas Hughes, filed by International Business Machines Corporation. (Related document(s) 235 ) (dhm, COURT STAFF) (Filed on 12/19/2008) (Entered: 12/30/2008)
265 REDACTED EXHIBITS 1−7 to 201 Declaration of Mark Cronk, filed by International Business Machines Corporation. (Related document(s) 201 ) (dhm,

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12/19/2008 12/19/2008 12/19/2008 12/19/2008 12/19/2008 12/19/2008 12/19/2008 12/19/2008 12/19/2008 12/19/2008 12/19/2008 12/19/2008 12/19/2008 12/19/2008 12/19/2008 12/19/2008 12/19/2008

COURT STAFF) (Filed on 12/19/2008) (Entered: 12/30/2008)
266 REDACTED EXHIBITS 1 and 3 to 204 Declaration of Lori Cummings, filed by International Business Machines Corporation. (Related document(s) 204 ) (dhm, COURT STAFF) (Filed on 12/19/2008) (Entered: 12/30/2008)
267 REDACTED EXHIBITS 2 and 3 to 190 Declaration of James Bleier, filed by International Business Machines Corporation. (Related document(s) 190 ) (dhm, COURT STAFF) (Filed on 12/19/2008) (Entered: 12/30/2008)
268 REDACTED EXHIBIT 1 to 206 Declaration of Ronald Dombroski, filed by International Business Machines Corporation. (Related document(s) 206 ) (dhm, COURT STAFF) (Filed on 12/19/2008) (Entered: 12/30/2008)
269 REDACTED EXHIBIT 1 to 198 Declaration of Bruce Linder, filed by International Business Machines Corporation. (Related document(s) 198 ) (dhm, COURT STAFF) (Filed on 12/19/2008) (Entered: 12/30/2008)
270 REDACTED EXHIBIT 1 to 186 Declaration of Gregory Akiki, filed by International Business Machines Corporation. (Related document(s) 186 ) (dhm, COURT STAFF) (Filed on 12/19/2008) (Entered: 12/30/2008)
271 REDACTED EXHIBIT 1 to 233 Declaration of Warren E. Hart, filed by International Business Machines Corporation. (Related document(s) 233 ) (dhm, COURT STAFF) (Filed on 12/19/2008) (Entered: 12/30/2008)
272 REDACTED EXHIBIT 1 to 238 Declaration of Eileen Inglis, filed by International Business Machines Corporation. (Related document(s) 238 ) (dhm, COURT STAFF) (Filed on 12/19/2008) (Entered: 12/30/2008)
273 REDACTED EXHIBIT 1 to 239 Declaration of David M. Jackson, filed by International Business Machines Corporation. (Related document(s) 239 ) (dhm, COURT STAFF) (Filed on 12/19/2008) (Entered: 12/30/2008)
274 REDACTED EXHIBIT 1 to 240 Declaration of Rangarajan Jagannathan, filed by International Business Machines Corporation. (Related document(s) 240 ) (dhm, COURT STAFF) (Filed on 12/19/2008) (Entered: 12/30/2008)
275 REDACTED EXHIBIT 1 to 241 Declaration of Kathryn Kershner, filed by International Business Machines Corporation. (Related document(s) 241 ) (dhm, COURT STAFF) (Filed on 12/19/2008) (Entered: 12/30/2008)
276 REDACTED EXHIBIT 2 to 243 Declaration of Steve Kozlowski, filed by International Business Machines Corporation. (Related document(s) 243 ) (dhm, COURT STAFF) (Filed on 12/19/2008) (Entered: 12/30/2008)
277 REDACTED EXHIBIT 1 to 219 Declaration of Helen Perlick, filed by International Business Machines Corporation. (Related document(s) 219 ) (dhm, COURT STAFF) (Filed on 12/19/2008) (Entered: 12/30/2008)
279 REDACTED EXHIBIT 1 to 222 Declaration of Bruce Petz, filed by International Business Machines Corporation. (Related document(s) 222 ) (dhm, COURT STAFF) (Filed on 12/19/2008) (Entered: 12/30/2008)
282 REDACTED EXHIBITS 1 and 2 to 224 Declaration of David Robideau, filed by International Business Machines Corporation. (Related document(s) 224 ) (dhm, COURT STAFF) (Filed on 12/19/2008) (Entered: 12/30/2008)
283 REDACTED EXHIBIT 1 to 234 Declaration of Peter Wu, filed by International Business Machines Corporation. (Related document(s) 234 ) (dhm, COURT STAFF) (Filed on 12/19/2008) (Entered: 12/30/2008)
284 REDACTED EXHIBIT 1 to 191 Declaration of William Cicerone, filed by International Business Machines Corporation. (Related document(s) 191 ) (dhm, COURT STAFF) (Filed on 12/19/2008) (Entered: 12/30/2008)
285 REDACTED EXHIBIT 1 to 196 Declaration of Tracy Corrigan, filed by International Business Machines Corporation. (Related document(s) 196 ) (dhm, COURT STAFF) (Filed on 12/19/2008) (Entered: 12/30/2008)

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12/19/2008 12/19/2008 12/24/2008 12/29/2008 12/29/2008 12/29/2008 12/29/2008 12/29/2008
12/29/2008
12/30/2008 12/30/2008 12/30/2008 01/14/2009 01/21/2009 01/23/2009

286 REDACTED EXHIBITS 1 and 3 to 236 Declaration of Tim Hurlbut, filed by International Business Machines Corporation. (Related document(s) 236 ) (dhm, COURT STAFF) (Filed on 12/19/2008) (Entered: 12/30/2008)
287 REDACTED EXHIBIT 1 to the Declaration of James Beecher in support of Defendant's Opposition to 172 Plaintiffs' Motion for Order Provisionally Certifying a Class filed by International Business Machines Corporation. (dhm, COURT STAFF) (Filed on 12/19/2008) (Entered: 12/30/2008)
253 STIPULATION AND ORDER 180 Re: Enlargement of Time to Respond to Defendant's Motion for Summary Judgment on the Claims of Plaintiff Rolf Marsh. Signed by Judge Ronald M. Whyte on 12/24/08. (jg, COURT STAFF) (Filed on 12/24/2008) (Entered: 12/24/2008)
254 MOTION to Continue Discovery Deadline; [proposed] Order filed by William Syverson. (Young, Jeffrey) (Filed on 12/29/2008) (Entered: 12/29/2008)
255 Declaration of Jeffrey Neil Young re 254 MOTION to Continue Discovery Deadline; [proposed] Order by William Syverson. (Young, Jeffrey) (Filed on 12/29/2008) Modified on 1/5/2009, counsel posted document using incorrect event (dhm, COURT STAFF). (Entered: 12/29/2008)
256 AFFIDAVIT Jeffrey Neil Young Regarding Filing Documents Under Seal In Support Of Plaintiffs' Opposition To Defendant's Motion for Summary Judgment On The Claims Of Plaintiff Rolf Marsh by William Syverson. (Young, Jeffrey) (Filed on 12/29/2008) (Entered: 12/29/2008)
257 Memorandum in Opposition to 173 Defendant's Motion for Summary Judgment on the Claims of Plaintiff Rolf Marsh filed byWilliam Syverson. (Young, Jeffrey) (Filed on 12/29/2008) Modified on 1/5/2009, counsel failed to link entry to document #173 (dhm, COURT STAFF). (Entered: 12/29/2008)
258 Declaration of Jeffrey Neil Young in support of 257 Memorandum in Opposition to Defendant's Motion for Summary Judgment on the Claims of Plaintiff Rolf Marsh by William Syverson. (Young, Jeffrey) (Filed on 12/29/2008) Modified on 1/5/2009, counsel posted document using incorrect event (dhm, COURT STAFF). (Entered: 12/29/2008)
259 Declaration of Rolf Marsh re 257 Memorandum in Opposition to Defendant's Motion for Summary Judgment on the Claims of Plaintiff Rolf Marsh I> by William Syverson. (Young, Jeffrey) (Filed on 12/29/2008) Modified on 1/5/2009, counsel posted document using incorrect event (dhm, COURT STAFF). (Entered: 12/29/2008)
278 EXHIBITS re 258 Affidavit of Jeffrey Neil Young [Exhibits 1 &2] filed byWilliam Syverson. (Related document(s) 258 ) (Young, Jeffrey) (Filed on 12/30/2008) (Entered: 12/30/2008)
280 EXHIBITS re 258 Affidavit of Jeffrey Neil Young [Exhibits 3−11] filed byWilliam Syverson. (Related document(s) 258 ) (Young, Jeffrey) (Filed on 12/30/2008) (Entered: 12/30/2008)
281 EXHIBITS re 258 Affidavit of Jeffrey Neil Young [Exhibits 12−29] filed byWilliam Syverson. (Related document(s) 258 ) (Young, Jeffrey) (Filed on 12/30/2008) (Entered: 12/30/2008)
288 Opt−In Herbert Henderson's WITHDRAWAL of Claim byWilliam Syverson. (Young, Jeffrey) (Filed on 1/14/2009) (Entered: 01/14/2009)
289 ORDER by Judge Ronald M. Whyte Granting 143 Motion for Pro Hac Vice for Attorney Hannah M. Breshin. (jg, COURT STAFF) (Filed on 1/21/2009) (Entered: 01/21/2009)
290 STIPULATION Re: Englargement of Time to File Responsive Memoranda to Motions for Summary Judgment and for Provisional Class Certification by International Business Machines Corporation. (Marshall, Alison) (Filed on 1/23/2009) (Entered: 01/23/2009)

Case: 5:03-cv-04529-RMW As of: 07/18/2010 08:39 AM PDT 35 of 35

01/29/2009 01/29/2009 11/05/2009

291 Proposed Order re Dismissal with Prejudice by William Syverson. (Baller, Morris) (Filed on 1/29/2009) (Entered: 01/29/2009)
292 ORDER 291 of Dismissal With Prejudice. Signed by Judge Ronald M. Whyte on 1/29/09. (jg, COURT STAFF) (Filed on 1/29/2009) (Entered: 01/29/2009)
FILE located at Federal Records Center (FRC), San Bruno, CA: Accession No: 021−2009−5152, Box No: 57−58. (mpb, COURT STAFF) (Filed on 11/5/2009) Modified on 11/5/2009 (mpb, COURT STAFF). (Entered: 11/05/2009)

 
 461 F.3d 1147 (2006)
William SYVERSON, individually, and on behalf of others similarly situated; Ruth Alice Boyd, individually, and on behalf of others similarly situated; Dale Cahill, individually, and on behalf of others similarly situated; Jack Friedman, individually, and on behalf of others 1148 similarly situated; Paul *1148 Gromkowski, individually, and on behalf of others similarly
situated; Sylvia Jones, individually, and on behalf of others similarly situated; Rolf No. 04-16449 Marsh, individually, and on behalf of others similarly situated; Walter Maslak, individually, and on behalf of others similarly situated; James Payne, individually, and on behalf of others similarly situated; Antonio Rivera, individually, and on behalf of others
similarly situated, Plaintiffs-counter-defendants-Appellants, v.
INTERNATIONAL BUSINESS MACHINES CORPORATION, Defendant-counter-claimantAppellee.
No. 04-16449.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted April 4, 2006. Filed August 31, 2006.
1149 *1149 Jeffrey N. Young and Patrick N. McTeague, McTeague, Higbee, Case, Cohen, Whitney & Toker, Topsham, ME, for the appellants.
Jeffrey D. Wohl and Katherine L. Kettler, Paul, Hastings, Janofsky & Walker LLP, San Francisco, CA, for the appellee.
Before: BERZON, RAWLINSON, and CALLAHAN, Circuit Judges.
BERZON, Circuit Judge:
Under the Older Workers Benefit Protection Act ("OWBPA"), employees may not waive rights or claims arising under the Age Discrimination in Employment Act ("ADEA") unless the waiver is "knowing and voluntary." 29 U.S.C. § 626(f)(1) (2000). To qualify as "knowing and voluntary," a waiver included in an agreement between an employer and its employees must, among other things, be "written in a manner calculated to be understood" by the average employee eligible to participate in the agreement. Id. § 626(f)(1)(A). This appeal presents the question whether a waiver form used by International Business Machines Corp. ("IBM") in connection with a severance benefit package meets that standard. We hold that it does not and was therefore not "knowing and voluntary." Id. § 626(f)(1).
I.
In January 2001, IBM began a reduction in its workforce. As part of its workforce reduction plan, IBM offered each employee selected for termination severance pay and certain benefits in exchange for signing a document entitled "Microelectronics Resource Action (MERA) General Release and Covenant Not To Sue" ("MERA Agreement").[1] Along with the MERA Agreement, IBM issued each selected employee a lengthy document entitled "Microelectronics Division Resource Action Employee Information Package" ("Information Package"), which details the job titles, ages, and numbers of those employees selected and those not selected for termination from various IBM divisions.
Appellants ("the employees")[2] are former IBM employees, each of whom signed the MERA Agreement, or a 1150 similar agreement, receiving in return severance pay and benefits. Based on the data contained *1150 in the

Information Package, these employees filed charges of age discrimination with various state authorities and with the Equal Employment Opportunity Commission ("EEOC"). The EEOC dismissed all charges, issuing each employee a "Notice of Right To Sue" along with a letter stating that the language of the MERA Agreement satisfies the OWBPA's minimum requirements for "knowing and voluntary" waiver of ADEA rights and claims and is enforceable, thus depriving the employees of their right to pursue their age discrimination claims. The employees then filed this putative class action in federal court alleging that the MERA Agreement violates the waiver requirements of the OWBPA and that IBM's layoff program constitutes age discrimination in violation of the ADEA.[3] The employees' OWBPA cause of action challenged the MERA Agreement's use of both a release covering ADEA claims and a covenant not to sue excepting them, the pairing of which allegedly caused confusion over whether ADEA claims were excepted from the release.
IBM filed a counterclaim seeking relief for the plaintiffs/ employees' breach of the agreements and, predicated thereon, a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).
The district court entered an order granting IBM's motion to dismiss the complaint with prejudice. The parties then stipulated to entry of judgment holding the employees jointly and severally liable on IBM's counterclaim and awarding IBM $27,500.
In dismissing the employees' claims, the district court determined that the MERA Agreement was "written in a manner calculated to be understood by an average individual selected by IBM for employment termination," and was "knowing and voluntary" under the OWBPA. In so holding, the district court cited to Thomforde v. International Business Machines Corp., 304 F.Supp.2d 1143 (D.Minn.2004) (Thomforde I), a single plaintiff action against IBM, in which the Minnesota district court found on summary judgment that an IBM contract, the "Server Group Resource Action (SGRA) General Release and Covenant Not To Sue" ("SGRA Agreement") 0907for present purposes, identical to the MERA Agreement 0907satisfied the OWBPA requirement that waiver of any ADEA right or claim be "written in a manner calculated to be understood" by the average individual. See id. at 1144-45. The employees here now appeal the waiver-based dismissal of their case.
After this appeal was fully briefed but before oral argument, the Eighth Circuit reversed the Minnesota district court's grant of summary judgment in favor of IBM, holding that the SGRA Agreement "is not written in a manner calculated to be understood by the intended participants as required by the OWBPA." Thomforde v. Int'l Bus. Machs. Corp., 406 F.3d 500, 504 (8th Cir.2005) (Thomforde II).[4] The employees maintain (1) that under the doctrine of offensive nonmutual issue preclusion, the Eighth Circuit's ruling is preclusive of an independent determination by this court of the waiver issue and (2) alternatively, that the MERA Agreement does not satisfy the OWBPA's "manner calculated" requirement.
1151 *1151 II.
We review de novo a district court's grant of a Rule 12(b)(6) motion to dismiss. Decker v. Advantage Fund, Ltd., 362 F.3d 593, 595-96 (9th Cir.2004); Spink v. Lockheed Corp., 125 F.3d 1257, 1260 (9th Cir. 1997). Upon review, we "must construe the complaint in the light most favorable to the plaintiff and must accept all well-pleaded factual allegations as true." Shwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000). "We also review de novo questions of statutory interpretation." Artichoke Joe's Cal. Grand Casino v. Norton, 353 F.3d 712, 719 (9th Cir.2003).
III.
A.
Added as a collection of discrete amendments to the Age Discrimination in Employment Act ("ADEA") in 1990, the Older Workers Benefit Protection Act ("OWBPA"), Pub.L. No. 101-433 (codified at 29 U.S.C. §§ 621, 623, 626, & 630), imposes, in relevant part, mandatory requirements for waivers of ADEA rights and claims, see 29 U.S.C. § 626(f), to ensure that "older workers are not coerced or manipulated into waiving their rights to seek

legal relief under the ADEA," see S. REP. NO. 101-263, at 5 (1990), as reprinted in 1990 U.S.C.C.A.N. 1509, 1510; see also Oubre v. Entergy Operations, Inc., 522 U.S. 422, 427, 118 S.Ct. 838, 139 L.Ed.2d 849 (1998) ("[The OWBPA] is designed to protect the rights and benefits of older workers. The OWBPA implements Congress' policy via a strict, unqualified statutory stricture on waivers."). Under the OWBPA, "[a]n employee `may not waive' an ADEA claim unless the employer complies with the statute." Oubre, 522 U.S. at 427, 118 S.Ct. 838. To this end, "[t]he OWBPA sets up its own regime for assessing the effect of ADEA waivers, separate and apart from contract law . . . . [and] creates a series of pre-requisites for knowing and voluntary waivers." Id.
Section 626(f), part of the OWBPA, sets forth specific requirements for a "knowing and voluntary" waiver.[5] Of 1152 primary importance *1152 here is the requirement that a waiver be part of an agreement "between the individual
and the employer that is written in a manner calculated to be understood by [the] individual, or by the average individual eligible to participate" in a workforce reduction plan. 29 U.S.C. § 626(f)(1)(A).[6] Also relevant to this case is the requirement that the selected employee or employees "[be] advised in writing to consult with an attorney prior to executing the agreement." Id. § 626(f)(1)(E). When a dispute arises over whether the requirements of § 626(f) are met, the party asserting the validity of the waiver bears the burden of proof. Id. § 626 (f)(3).
To satisfy the "manner calculated" requirement, "[w]aiver agreements must be drafted in plain language geared to the level of understanding of the individual party to the agreement or individuals eligible to participate" in a group termination plan. 29 C.F.R. § 1625.22(b)(3) (2005). Employers are thus instructed to "take into account such factors as the level of comprehension and education of typical participants." Id. These considerations "usually will require the limitation or elimination of technical jargon and of long, complex sentences." Id.[7]
As developed in greater detail below, the employees dispute, as they did before the district court, whether the MERA Agreement satisfies the "manner calculated" requirement of § 626(f)(1)(A).
B.
1153 In Thomforde II, the Eighth Circuit considered the precise question we are *1153 asked to determine here, holding that "the release of claims signed by Thomforde as part of IBM's involuntary termination program did not satisfy the statutory waiver requirements of the [OWBPA], 29 U.S.C. § 626(f)." 406 F.3d at 501. In addition to parsing the language of the SGRA Agreement, the court noted in its recitation of facts that:
Prior to signing the Agreement, Thomforde asked his supervisor, Andrew Schram, if the exception for ADEA claims contained in the covenant not to sue meant that he could sue IBM if the case was limited to claims under the ADEA. Schram told Thomforde that he would contact IBM's legal department. Schram later sent Thomforde an e-mail stating "Regarding your question on the General Release and Covenant Not to Sue, the wording is as intended by IBM. The site attorney was not comfortable providing an interpretation for you and suggested you consult with your own attorney." After meeting with his attorney to review the Agreement, Thomforde concluded that he could sign the Agreement and still pursue his claims of age discrimination as long as they were limited to ADEA claims.
Id. at 502 (citation omitted). The Thomforde II panel concluded that "[g]iven the lack of clarity in the Agreement, and IBM's declination to tell Thomforde what it meant by the language, we hold that the Agreement is not written in a manner calculated to be understood by the intended participants as required by the OWBPA." Id. at 504 (emphasis added).
C.
Seeking to capitalize on Thomforde II, the employees argue for the application of offensive nonmutual issue preclusion,[8] which prevents "a defendant from relitigating the issues which a defendant previously litigated and lost against another plaintiff." Parklane Hosiery Co. v. Shore, 439 U.S. 322, 329, 99 S.Ct. 645, 58 L.Ed.2d 552

(1979); see State of Idaho Potato Comm'n v. G & T Terminal Packaging, Inc., 425 F.3d 708, 713 n. 3 (9th Cir.2005) (noting that offensive, as opposed to defensive, nonmutual issue preclusion involves "a plaintiff seek [ing] to prevent a defendant from relitigating an issue that the defendant previously litigated unsuccessfully against a different party"). In Parklane Hosiery, the Supreme Court sanctioned the use of offensive nonmutual issue preclusion and granted to trial courts "broad discretion to determine when it should be applied." 439 U.S. at 331, 99 S.Ct. 645.
We have since specified that the application of offensive nonmutual issue preclusion is appropriate only if (1) there was a full and fair opportunity to litigate the identical issue in the prior action, see Fund for Animals, Inc. v. Lujan, 962 F.2d 1391, 1399 (9th Cir.1992); Resolution Trust Corp. v. Keating, 186 F.3d 1110, 1114 (9th Cir.1999); 1154 Appling v. State *1154 Farm Mut. Auto. Ins. Co., 340 F.3d 769, 775 (9th Cir.2003); (2) the issue was actually litigated in the prior action, see Appling, 340 F.3d at 775; (3) the issue was decided in a final judgment, see Resolution Trust Corp., 186 F.3d at 1114; and (4) the party against whom issue preclusion is asserted was a party or in privity with a party to the prior action, see id. See also Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 (9th Cir.2006) (setting out standard); Robi v. Five Platters, Inc., 838 F.2d 318, 322 (9th Cir.1988) (same); RESTATEMENT (SECOND) OF JUDGMENTS § 27 & cmt. j (1982) (same).
The Supreme Court's grant of "broad discretion" to trial courts provides those courts the authority to take potential shortcomings or indices of unfairness into account when considering whether to apply offensive nonmutual issue preclusion, even where the above-listed standard prerequisites are met. See Parklane Hosiery, 439 U.S. at 331, 99 S.Ct. 645; Appling, 340 F.3d at 776. The potential shortcomings or indices of unfairness identified by the Court include whether (1)"the plaintiff had the incentive to adopt a `wait and see' attitude in the hope that the first action by another plaintiff would result in a favorable judgment" which might then be used against the losing defendant; (2) the defendant had the incentive to defend the first suit with full vigor, especially when future suits are not foreseeable; (3) one or more judgments entered before the one invoked as preclusive are inconsistent with the latter or each other, suggesting that reliance on a single adverse judgment would be unfair; and, (4) the defendant might be afforded procedural opportunities in the later action that were unavailable in the first "and that could readily cause a different result." Parklane Hosiery, 439 U.S. at 330-31, 99 S.Ct. 645; see also 18A CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 4465 (2002) [hereinafter FED. PRAC. & PROC.] (discussing limitations on nonmutual issue preclusion). It is against this backdrop of concerns that we consider the employees' assertion that Thomforde II controls our decision in this appeal.
IBM takes the position that Thomforde II should not have preclusive effect because (1) the decision in Thomforde II is not "final"; (2) there were prior inconsistent judgments; (3) there is a salient difference between the Thomforde action, a single plaintiff action, and the case before us, a putative class action; and (4) the issue addressed in Thomforde II is not identical to the one raised in this appeal.
We do not adopt IBM's first three contentions. First, contrary to IBM's assertion that the "district court[in Thomforde] . . . may still consider whether, based on the actual evidence and not just the plaintiff's allegations, the [w]aiver is valid under the OWBPA," the Eighth Circuit's opinion leaves no room for such reconsideration by the district court. See Thomforde II, 406 F.3d at 501 (stating that "the release of claims signed by Thomforde as part of IBM's involuntary program did not satisfy the statutory waiver requirements of the [OWBPA]"). The Eighth Circuit's decision on the waiver question is thus sufficiently "final" even though there are to be further proceedings on remand on the merits of the ADEA action. See Luben Indus., Inc. v. United States, 707 F.2d 1037, 1040 (9th Cir.1983) ("To be `final' for [issue preclusion] purposes, a decision need not possess `finality' in the sense of 28 U.S.C. § 1291."). Instead, the proper query here is whether the court's decision on the issue as to which preclusion is sought is final. It is. See Lummus Co. v. Commonwealth Oil Refining Co., 297 F.2d 80, 89 (2d 1155 Cir.1961) (Friendly, J.) (explaining *1155 that "`[f]inality' in the context [of issue preclusion] . . . may mean little more than that the litigation of a particular issue has reached such a stage that a court sees no really good reason for permitting it to be litigated again"); see also FED. PRAC. & PROC. § 4434 ("[I]ssue preclusion [has been applied] to matters resolved by preliminary rulings or to determinations of liability that have not yet been completed by an award of damages or other relief. The most prominent [of those] decisions have involved issues that were resolved by appeal prior to final judgment in the first action." (emphasis added)).

Second, the two judgments that IBM offers up as "prior inconsistent judgments" 0907 Thomforde I (in favor of IBM) and the district court's ruling in this action (in favor of IBM) 0907 are not pertinent judgments for the purposes of an issue preclusion determination. Thomforde II reversed Thomforde I, definitively rejecting its "application of a legal rule to the evidence." RESTATEMENT (SECOND) OF JUDGMENTS § 29 cmt. f (noting the prior inconsistent judgment rule applies where "the outcomes [of the judgments] may have been based on equally reasonable resolutions of doubt as to the probative strength of the evidence or the appropriate application of a legal rule to the evidence" (emphasis added)). Thomforde I is not a judgment on which a party to the present action may rely, and is not, therefore, inconsistent with Thomforde II for the purposes of our issue preclusion determination.
We also do not consider the district court's decision in this case, which we are here reviewing, to be a prior judgment inconsistent with Thomforde II. Intermediate determinations that are part of ongoing litigation do not trigger the prior inconsistent judgment fairness concerns identified by the Supreme Court in Parklane Hosiery. See 439 U.S. at 330-31, 99 S.Ct. 645. There, the Supreme Court relied on Professor Currie's example in which "a railroad collision injures 50 passengers all of whom bring separate actions against the railroad. After the railroad wins the first 25 suits, a plaintiff wins in suit 26," and Currie's argument "that offensive use of collateral estoppel should not be applied [in such a circumstance] so as to allow plaintiffs 27 through 50 automatically to recover." Id. at 330, 99 S.Ct. 645 n. 14. As this example demonstrates, allowing plaintiffs to cherry-pick favorable prior decisions to preclude issues in an ongoing or subsequent litigation raises serious fairness concerns. By contrast, Thomforde II is the only prior judgment that is final on the waiver matter at issue here because appellants have challenged the district court's decision in this case.
Finally, we acknowledge that there may be merit to IBM's contention that, based on the "different stakes and tactical considerations" at play in a single-plaintiff action as compared to a putative class action, a defendant should not be precluded from relitigating an issue in a later class action if it did not have a full and fair opportunity to litigate the issue in an earlier single-plaintiff action. The lone case cited by IBM, Schwab v. Philip Morris USA, Inc., No. CV 04-1945 JBW, 2005 WL 2401645 (E.D.N.Y., Sept.27, 2005), however, does not support its per se position that a final determination of an issue in a single-plaintiff action cannot preclude relitigation of that issue in a later-brought class action. In Schwab, class action plaintiffs sought to preclude Philip Morris, the defendant, from relitigating the issue of whether it had conspired with other tobacco companies to defraud the public. 2005 WL 2401645, at *1. The decision in Schwab primarily turned on the fact that the prior case was based on distinct 1156 substantive legal grounds 0907 state consumer fraud law rather than a RICO-based theory 0907 not on *1156 the fact that the prior case was brought by a single plaintiff. See id. at *1-2. We further note that here the two litigations were occurring nearly simultaneously, so invocation of issue preclusion in this case was foreseeable and IBM had every incentive to litigate Thomforde "fully and vigorously." See Parklane Hosiery, 439 U.S. at 330, 332, 99 S.Ct. 645.
In the end, we do not need to decide whether the single-plaintiff nature of Thomforde is alone sufficient to preclude nonmutual issue preclusion. A comparison of these actions convinces us that, while the question is close, the issue decided in Thomforde is not identical to that raised here. Thomforde II, therefore, cannot preclude us from reaching the merits of this appeal.
Several factors bear on the question of whether the issue decided in Thomforde II is sufficiently similar to the one raised here, including whether there is a "substantial overlap between the evidence or argument . . . advanced" in both proceedings, whether "new evidence or argument involve[s] the application of the same rule of law" as applied in the earlier decided action, and the degree to which the claims advanced in both actions are "closely related." Resolution Trust, 186 F.3d at 1116.
IBM maintains that Thomforde II should not have preclusive effect here because the Eighth Circuit's holding in that case rested on two bases 0907 "the lack of clarity in the Agreement" and "IBM's declination to tell Thomforde what it meant by the language." See Thomforde II, 406 F.3d at 504. The second consideration is particular to the individual plaintiff in Thomforde and absent here.
It is far from clear exactly what significance the Thomforde II panel gave to IBM's refusal to clarify the SGRA Agreement. The bulk of the opinion is devoted to explaining why the language of the agreement lacks clarity. Id. at 503-04. The significance of IBM's refusal to explain the terms of the agreement to Thomforde is not analyzed.

Nevertheless, the Eighth Circuit did point to that refusal in its final summary of the grounds for its decision. That being so, we cannot conclude that this distinct set of facts, applicable to the individual plaintiff in Thomforde but not to the named plaintiffs or the putative class in this case, had no role in the Eighth Circuit's ultimate conclusion that the waiver was invalid.
We note that Thomforde II stated, in no uncertain terms, that clarification outside the scope of the SGRA Agreement would not satisfy the strict requirements of the OWBPA. See 406 F.3d at 504 n. 1. It is, therefore, rather unlikely that IBM's declination to clarify the agreement played a material role in Eighth Circuit's determination. With no way to verify this hunch, however, we decline to so assume.
Because the Eighth Circuit's reasoning did not end with analysis of the language of the SGRA Agreement, but instead, expressly took into account facts specific to the individual plaintiff in that case, we conclude that the issues are not sufficiently identical between that case and this one for offensive nonmutual issue preclusion to apply. We therefore turn to the merits of this appeal.

D.

At the outset of the MERA Agreement, the employee is "advised to consult an attorney" prior to signing. The MERA Agreement goes on to provide, in relevant part:

1157

If you feel that you are being coerced to sign this General Release and Covenant Not to Sue (hereinafter "Release"), [or] that your signing would for any reason not be voluntary . . . you are encouraged to discuss this with your manager, the *1157 MERA Project Office or Human Resources before signing this Release.

In exchange for the sums and benefits received pursuant to the terms of the MICROELECTRONICS RESOURCE ACTION (MERA), [EMPLOYEE NAME], (hereinafter "you") agrees to release and hereby does release [IBM] . . . from all claims, demands, actions or liabilities you may have against IBM of whatever kind including, but not limited to, those that are related to your employment with IBM, the termination of that employment, or other severance payments or your eligibility for participation in the Retirement Bridge Leave of Absence, or claims for attorneys' fees.

. . . .

You also agree that this Release covers, but is not limited to, claims arising from the [ADEA], as amended, . . . and any other federal, state or local law dealing with discrimination in employment, including, but not limited to, discrimination based on sex, sexual orientation, race, national origin, religion, disability, veteran status or age. . . . This Release covers both claims that you know about and those that you may not know about which have accrued by the time you execute this Release.

. . . .

You agree that you will never institute a claim of any kind against IBM . . . including, but not limited to, claims related to your employment with IBM or the termination of that employment or other severance payments or your eligibility for participation in the Retirement Bridge Leave of Absence. If you violate this covenant not to sue by suing IBM . . ., you agree that you will pay all costs and expenses of defending against the suit incurred by IBM . . ., including reasonable attorneys' fees, and all further costs and fees, including attorneys' fees, incurred in connection with collection. This covenant not to sue does not apply to actions based solely under the [ADEA], as amended. That means that if you were to sue IBM . . . only under the [ADEA], as amended, you would not be liable under the terms of this Release for their attorneys' fees and other costs and expenses of defending against the suit. This Release does not preclude filing a charge with the U.S. Equal Employment Opportunity Commission.

. . . .

You hereby acknowledge that you understand and agree to this General Release and Covenant Not to Sue.
End Note 1 of the agreement explains that "[t]he [ADEA] prohibits employment discrimination based on age and is enforced by the [EEOC]."
E.
1. In arguing that the MERA Agreement is unclear and confusing, the employees maintain that the last sentence of the covenant not to sue,[9] when read in conjunction with End Note 1,[10] conveys "the impression that, notwithstanding the waiver, IBM employees could still obtain individual relief for their ADEA claims [filed with the EEOC]." Section 1625.22 of the Code of Federal Regulations provides that "[a] waiver agreement must not have the effect of misleading, misinforming, or failing to inform participants and affected individuals." 29 C.F.R. § 1625.22(b)(4). The employees argue that given the last sentence of the covenant not to sue, it was "incumbent 1158 upon IBM to provide sufficient information so as not to mislead them" about their ability to obtain victim-specific *1158 relief by filing claims with the EEOC, the availability of such relief being, apparently, an open legal question. See generally EEOC v. Waffle House, Inc., 534 U.S. 279, 294-98, 122 S.Ct. 754, 151 L.Ed.2d 755 (2002).[11]
The language that the employees challenge, however, does not exaggerate or misrepresent the availability of relief via the EEOC. It merely notes that such relief is unaffected by the MERA Agreement. That representation is accurate. See 29 U.S.C. § 626(f)(4) ("No waiver agreement may affect the [EEOC's] rights and responsibilities to enforce this chapter. No waiver may be used to justify interfering with the protected right of an employee to file a charge or participate in an investigation or proceeding conducted by the[EEOC]."); see also S. REP. NO. 101-263, at 35, as reprinted in 1990 U.S.C.C.A.N. 1509, 1541 ("The legislation provides that a waiver may not interfere with the EEOC's rights and responsibilities to enforce the ADEA, nor may such a waiver be used to interfere with the employee's protected right to file a charge or to participate in an EEOC investigation or proceeding."). We conclude that the last sentence of the covenant not to sue does not render the MERA Agreement invalid.
2. The employees' core complaint is that the MERA Agreement misleads participating employees to believe that, above and beyond their unaffected right to file an ADEA claim with the EEOC, they retain the right to pursue independently an ADEA claim in court. They contend that the phrasing of the release and covenant not to sue engenders confusion over whether ADEA claims are in fact covered by the release or are excepted from it. We agree, and hold that the MERA Agreement does not satisfy the "manner calculated" requirement of the OWBPA. The employees' waiver of ADEA claims, along with the accompanying covenant not to sue, was therefore not "knowing or voluntary," and both are unenforceable.
The MERA Agreement contains, on the one hand, a release of "all claims," including "claims arising from the [ADEA]" and, on the other hand, a "covenant not to sue" which includes an "agree[ment] . . . [to] never institute a claim of any kind against IBM . . . related to . . . employment with IBM." It also provides, however, that "[t]his covenant not to sue does not apply to actions based solely under the [ADEA]." (emphases added). Considering this very same language, the Eighth Circuit observed:
[O]ne plausible reading of the document reveals that the employee releases IBM from all ADEA claims and agrees not to institute a claim of any kind against IBM, except the employee may bring an action based solely under the ADEA. Without a clear understanding of the legal differences between a release and a covenant not to sue, these provisions would seem to be contradictory; how can an employee bring a suit solely under the ADEA if the employee has waived all claims under the ADEA?
Thomforde II, 406 F.3d at 503.

We agree. The existence of a technical distinction between legal terms does nothing to demonstrate that the average employee confronted with the MERA Agreement would grasp the import of the distinction in a meaningful way. See id. a 504 ("Despite their distinct purposes, the differences between a release and a covenant not to sue 1159 are fairly amorphous and may not be readily apparent to the lay reader."); see also Watts v. BellSouth *1159 Telecomms., Inc., 316 F.3d 1203, 1207-08 (11th Cir.2003) (observing, in ERISA context, that what may seem obvious to "attorneys and judges familiar with the law" may not to "the average plan participant"). Instead, to a lay reader 0907 and, as we discuss below, to many lawyers as well 0907 these provisions seem first to release all ADEA claims an employee might have, and then to preserve a right to sue under the ADEA, implying retention, not release, of ADEA claims.

IBM protests that it "cannot fairly be faulted for including [in the agreement] a covenant not to sue that is permissible under the law and necessary for IBM to obtain an affirmative remedy [(i.e., the collection of fees and costs)] in the event of a suit based on a waived claim." According to IBM, the release and the covenant not to sue serve distinct legal purposes. So they can, but, as a practical matter, the two purposes often merge.

Black's Law Dictionary defines "covenant not to sue" as "[a] covenant in which a party having a right of action agrees not to assert that right in litigation," BLACK'S LAW DICTIONARY 299 (abridged 7th ed.2000) (emphasis added), and a "release" as "the act of giving up a right or claim to the person against whom it could have been enforced," id. at 1034; see also id. at 1276 (defining "waiver" as "[t]he voluntary relinquishment or abandonment . . . of a legal right"). This distinction is reflected in case law. See Medtronic AVE, Inc. v. Advanced Cardiovascular Sys., Inc., 247 F.3d 44, 55 n. 4 (3d Cir.2001) ("A release is a provision that intends a present abandonment of a known right or claim. By contrast, a covenant not to sue also applies to future claims and constitutes an agreement to exercise forbearance from asserting any claim which either exists or which may accrue . . . ." (quotation marks omitted)); Pacific States Lumber Co. v. Bargar, 10 F.2d 335, 337 (9th Cir.1926) ("Releases of, and covenants not to sue, a wrongdoer have from early times been considered distinct. A covenant not to sue one of several joint obligers or joint tortfeasors did not at common law operate to discharge others from liability, since it was said not to have the effect, technically, of extinguishing any part of the cause of action." (quotation marks omitted)); see also Colton v. N.Y. Hosp., 98 Misc.2d 957, 414 N.Y.S.2d 866, 871-73 (1979) (canvassing the "generally abstrusely worded distinction" between releases and covenants not to sue).

The technical distinction between these terms is sometimes more apparent than real. As the court in Colton observed:

[P]erhaps the most important difference between a covenant not to sue and a release [ ]0907 the effectiveness of the agreement as a bar to subsequent action by a breaching promisor [ ]0907 has long been recognized as being invariably a distinction without a difference. Since equity would not permit specific performance of a covenant not to sue, an action would lie for its breach. The measure of the aggrieved promisee's damages, however, would except for attorneys fees, be equal to his original liability on the underlying claim. Thus, in order to prevent a circuity of actions, where a covenant not to sue was given in perpetuity and did not involve joint torfeasors, it would be deemed to operate as a release, a complete and permanent bar to the underlying action.

414 N.Y.S.2d at 873 (emphasis added) (citation omitted).

Further, the distinction between releases and covenants not to sue becomes particularly murky when both are included in a single document. As the EEOC recognized:

1160

*1160 Although ADEA covenants not to sue (absent damages) operate as the functional equivalent of waivers, they carry a higher risk of violating the OWBPA by virtue of their wording. An employee could read "covenant not to sue" or "promise not to sue" as giving up not only the right to challenge a past employment consequence as an ADEA violation, but also the right to challenge in court the knowing and voluntary nature of his or her waiver agreement. The chance of misunderstanding is heightened if the covenant not to sue is added to an agreement that already includes an ADEA waiver clause. The covenant in such a case would have no legal effect

separate from the waiver clause. Nonetheless, its language would appear to bar an individual's access to court.
Waivers of Rights and Claims: Tender Back of Consideration, 65 Fed.Reg. 77438, 77443 (Dec. 11, 2000) (emphases added) (to be codified at 29 C.F.R. pt. 1625).
Given this substantive overlap between releases and covenants not to sue, that fact that the MERA Agreement's covenant not to sue contains an exception for ADEA claims necessarily creates potential confusion, as it appears to lift any barrier from proceeding to court with an ADEA claim. The confusion ensues, in part, from including in a single document two concepts that, technically speaking, cannot coexist. Under the classic definitions contained in Black's Law Dictionary and in the case law quoted above, a covenant not to sue is pertinent only if the underlying right is not extinguished, while a release extinguishes any underlying right. Where both nonetheless appear in the same document, the covenant not to sue largely swallows the release 0907 and the negation of the covenant not to sue can therefore be read as negating the release as well.
IBM stresses that without the covenant not to sue it would have been deprived of the "full benefit of its bargain" with those employees who signed on to the MERA Agreement, because without the covenant, although "IBM could raise the Release as an affirmative defense and obtain a dismissal of the suit, it still would be out its costs and attorneys' fees." IBM also maintains that the covenant not to sue was drafted to comply with the EEOC regulation that provides:"[n]o ADEA waiver agreement, covenant not to sue, or other equivalent arrangement may impose any . . . penalty, or any other limitation adversely affecting any individual's right to challenge the agreement . . . . [including] provisions allowing employers to recover attorneys' fees and/or damages because of the filing of an ADEA suit." 29 C.F.R. § 1625.23(b).
It very well may have been IBM's intention to draft an agreement that would preserve the right of an employee to challenge without penalty his waiver of ADEA claims as not knowing or voluntary. See Thomforde II, 406 F.3d at 504 (observing that "[t]he intended effect of the Agreement was to release the employee's substantive claims under the ADEA, while preserving the employee's right to challenge the validity of the release through a lawsuit, as provided by the regulations" (citing 29 C.F.R. § 1625.23(b))). If that was IBM's intention, it would have been quite easy to have accomplished this purpose directly. The MERA Agreement, by contrast, uses a term unfamiliar to lay people, "covenant not to sue," and does not explain how the release and the covenant not to sue dovetail, either in general or as they relate to the ADEA claims. See id. (noting that "the Agreement does not explain how the provisions relate to each other or the limited nature of the exception to the covenant not to sue in light of the release of claims"); see also 29 C.F.R. § 1625.22(b)(3) ("Consideration [of the need to draft waiver agreements in 1161 plain *1161 language] . . . usually will require the limitation or elimination of technical jargon and of long, complex sentences.").
Indeed, far from explaining the intended, independent functions of the release and of the covenant not to sue, the MERA Agreement muddles the matter by referring to both provisions with the same shorthand name 0907 "Release" 0907 indicating interchangeability, not distinction. See Thomforde II, 406 F.3d at 504 (noting same). Adding to the confusion, the paragraph containing the covenant not to sue in fact refers to the covenant and the broader "Release" as if the terms were completely interchangeable. See id. (noting same).
In reaching its conclusion that the MERA Agreement satisfies the "manner calculated" requirement for ADEA waivers, the district court, looking to the technical, legal distinction between a release and a covenant not to sue, noted that "[t]o the extent the language of the[MERA Agreement] requires clarification, the [agreement] explicitly advises affected employees to consult an attorney, their manager, the MERA Project Office or Human Resources prior to signing." IBM now advances a similar argument. We do not agree that the direction to consult an attorney or an IBM employee mitigates confusing waiver language.
As explained in Thomforde II,
[i]t seems axiomatic that if an agreement needs clarification, it is not written in a manner calculated to be understood. To rely on the agreement's direction to seek legal advice, a separate statutory requirement for a valid waiver, see [29 U.S.C.] § 626(f)(1)(E), for clarification of the

waiver would nullify the distinct requirement that the agreement be written in a manner calculated to be understood by the participant (as opposed to his attorney).
406 F.3d at 504 n. 1. As this passage indicates, were we to embrace IBM's suggestion that any lack of clarity might be cured by compliance with § 626(f)(1)(E), we would rob all purpose from the distinct "manner calculated" requirement set forth in subsection (A).
We decline, as we must, the invitation to so construe the OWBPA. "[A] statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant." Market Co. v. Hoffman, 101 U.S. 112, 115-16, 25 L.Ed. 782 (1879) (internal quotation marks omitted), cited with approval in Duncan v. Walker, 533 U.S. 167, 174, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001); see United States v. 144,774 Pounds of Blue King Crab, 410 F.3d 1131, 1134 (9th Cir.2005), cert. denied sub nom. Deep Sea Fisheries, Inc. v. United States, ___ U.S. ___, 126 S.Ct. 828, 163 L.Ed.2d 706 (Dec. 12, 2005). As the Sixth Circuit has explained, "Congress's intent in enacting § 626 was to compel employers to provide data so that an employee considering waiving ADEA rights could assess, with the assistance of counsel, the viability of a 1162 potential ADEA claim."[12]Raczak v. Ameritech Corp., 103 *1162 F.3d 1257, 1259 (6th Cir.1997) (construing 29 U.S.C. § 626(f)(1)(H)); see Am. Airlines v. Cardoza-Rodriguez, 133 F.3d 111, 118 (1st Cir.1998) (following Raczak); see also S. REP. NO. 101-263, at 34, as reprinted in 1990 U.S.C.C.A.N. 1509, 1540 (noting that "[d]ue to the complexity of [group termination and exit incentive] programs, the Committee views the assistance of counsel as a practical necessity in analyzing the programs and determining whether a violation of the Act has occurred"). The independent statutory requirement that waivers of ADEA rights and claims be written in a "manner calculated" to be understood by the average affected employee serves a different purpose entirely: that employees do not acquiesce to such waivers unwittingly. See S. REP. NO. 101-263, at 5, as reprinted in 1990 U.S.C.C.A.N. 1509, 1510.
We hold that the MERA Agreement does not satisfy the "manner calculated" requirement of the OWBPA, was not "knowing and voluntary," and cannot be enforced. The district court's dismissal is reversed, the award of $27,500 to IBM on its counterclaim is vacated, and the case is remanded for further proceedings consistent with this opinion.
REVERSED, VACATED, and REMANDED.
[1] The record also contains a later-distributed agreement entitled "Microelectronics Division Resource (MDRA) General Release and Covenant Not To Sue" ("MDRA Agreement"). The MDRA Agreement is, for the purposes of our analysis, indistinguishable from the earlier-distributed MERA Agreement.
[2] Appellants are the named plaintiffs who filed this putative class action: William Syverson, Ruth Alice Boyd, Dale Cahill, Jack Friedman, Paul Gromkowski, Sylvia Jones, Rolf Marsh, Walter Maslak, James Payne, and Antonio Rivera.
[3] The employees also alleged violation of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1001-1461, but they do not appeal the district court's dismissal of that cause of action.
[4] On June 16, 2005, the Eighth Circuit denied IBM's request for rehearing and rehearing en banc.
[5] Section 626(f), in relevant part, provides:
(1) An individual may not waive any right or claim under this chapter unless the waiver is knowing and voluntary. Except as provided in paragraph (2), a waiver may not be considered knowing and voluntary unless at a minimum 0907
(A) the waiver is part of an agreement between the individual and the employer that is written in a manner calculated to be understood by such individual, or by the average individual eligible to participate;
(B) the waiver specifically refers to rights or claims arising under this chapter;
(C) the individual does not waive rights or claims that may arise after the date the waiver is executed;

(D) the individual waives rights or claims only in exchange for consideration in addition to anything of value to which the individual already is entitled;
(E) the individual is advised in writing to consult with an attorney prior to executing the agreement;
(F)(i) the individual is given a period of at least 21 days within which to consider the agreement; or
(ii) if a waiver is requested in connection with an exit incentive or other employment termination program offered to a group or class of employees, the individual is given a period of at least 45 days within which to consider the agreement;
(G) the agreement provides that for a period of at least 7 days following the execution of such agreement, the individual may revoke the agreement, and the agreement shall not become effective or enforceable until the revocation period has expired;
(H) if a waiver is requested in connection with an exit incentive or other employment termination program offered to a group or class of employees, the employer (at the commencement of the period specified in subparagraph (F)) informs the individual in writing in a manner calculated to be understood by the average individual eligible to participate, as to 0907
(i) any class, unit, or group of individuals covered by such program, any eligibility factors for such program, and any time limits applicable to such program; and
(ii) the job titles and ages of all individuals eligible or selected for the program, and the ages of all individuals in the same job classification or organizational unit who are not eligible or selected for the program.
29 U.S.C. § 626(f)(1).
[6] The somewhat awkward language of this subsection is intended to reach both individually tailored termination plans, which allow arms-length negotiations between the employer and the terminated employee, and termination plans "targeted at groups of employees," which normally do not allow for any negotiation of terms. See S. REP. NO. 101-263, at 32, as reprinted in 1990 U.S.C.C.A.N. 1509, 1537.
[7] The statute sets up the minimum requirements that must be satisfied before a waiver is found "knowing and voluntary." However, "[o]ther facts and circumstances may bear on the question of whether a waiver is knowing and voluntary, as, for example, if there is a material mistake, omission, or misstatement in the information furnished by the employer to an employee in connection with the waiver." 29 C.F.R. § 1625.22(a)(3). Indeed, "[t]he waiver agreement must not have the effect of misleading, misinforming, or failing to inform participants and affected individuals. [And][a]ny advantages or disadvantages described shall be presented without either exaggerating the benefits or minimizing the limitations." Id. § 1625.22(b)(4); see also S. REP. NO. 101-263, at 31, as reprinted in 1990 U.S.C.C.A.N. 1509, 1537 ("[W]aivers not supervised by the EEOC may be valid and enforceable if they meet certain threshold requirements and are otherwise shown to be knowing and voluntary." (emphasis added)).
Although this circuit has not addressed the question, other circuits apply a "totality of the circumstances" test to determine whether a particular waiver is "knowing and voluntary." This further inquiry is necessary, however, only if the minimum statutory requirements are met. See, e.g., Kruchowski v. Weyerhaeuser Co., 423 F.3d 1139, 1142 (10th Cir.2005); Wastak v. Lehigh Valley Health Network, 342 F.3d 281, 294 n. 8 (3d Cir. 2003); Griffin v. Kraft Gen. Foods, Inc., 62 F.3d 368, 373-74 (11th Cir.1995) (per curiam). As we conclude that the MERA Agreement does not satisfy the threshold statutory requirements, we have no occasion to determine whether the "totality of the circumstances" inquiry is the proper one where those requirements are met.
[8] "Rather than using the terms `res judicata' and `collateral estoppel,' the Supreme Court has [in recent years generally] used the terms `claim preclusion' and `issue preclusion,'" Frank v. United Airlines, Inc., 216 F.3d 845, 850 n. 4 (9th Cir.2000) (citing Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 77 n. 1, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984)), a practice we follow in this opinion.

The term "nonmutual" refers to the use of the doctrine by a nonparty to a prior action "to preclude a party to that [prior] action from relitigating a previously determined issue in a subsequent lawsuit against the nonparty." State of Idaho Potato Comm'n v. G & T Terminal Packaging, Inc., 425 F.3d 708, 713 n. 3 (9th Cir.2005); see also Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326-28, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979) (discussing the abandonment of the "mutuality requirement").
[9] "This Release does not preclude filing a charge with the [EEOC]."
[10] "The [ADEA] prohibits employment discrimination based on age and is enforced by the [EEOC]."
[11] We are not presented with, and do not decide the question whether the EEOC may pursue victim-specific relief where an employee has signed a waiver or release of ADEA claims.
[12] Section 626(f)(1)(H) provides:
[I]f a waiver is requested in connection with an exit incentive or other employment termination program offered to a group or class of employees, the employer . . . informs the individual in writing in a manner calculated to be understood by the average individual eligible to participate, as to 0907
(i) any class, unit, or group of individuals covered by such program, any eligibility factors for such program, and any time limits applicable to such program; and
(ii) the job titles and ages of all individuals eligible or selected for the program, and the ages of all individuals in the same job classification or organizational unit who are not eligible or selected for the program.
29 U.S.C. § 626(f)(1)(H).
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 472 F.3d 1072 (2007)
William SYVERSON, individually, and on behalf of others similarly situated; Ruth Alice Boyd, individually, and on behalf of others similarly situated; Dale Cahill, individually, and on behalf of others similarly situated; Jack Friedman, individually, and on behalf of others
similarly situated; Paul Gromkowski, individually, and on behalf of others similarly situated; Sylvia Jones, individually, and on behalf of others similarly situated; Rolf Marsh, individually, and on behalf of others similarly situated; Walter Maslak, individually, and on
behalf of others similarly situated; James Payne, individually, and on behalf of others similarly situated; Antonio Rivera, individually, and on behalf of others similarly situated,
Plaintiffs-counter-defendants-Appellants, v.
INTERNATIONAL BUSINESS MACHINES CORPORATION, Defendant-counter-claimantAppellee.
No. 04-16449.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted April 4, 2006. Filed August 31, 2006.
Amended January 3, 2007.
1073 *1073 Jeffrey N. Young and Patrick N. McTeague, McTeague, Higbee, Case, Cohen, Whitney & Toker, Topsham, ME, for the appellants.
Jeffrey D. Wohl and Katherine L. Kettler, Paul, Hastings, Janofsky & Walker LLP, San Francisco, CA, for the appellee.
Before: MARSHA S. BERZON, JOHNNIE B. RAWLINSON, and CONSUELO M. CALLAHAN, Circuit Judges.

ORDER AND AMENDED OPINION

BERZON, Circuit Judge:

ORDER

The panel has voted to deny appellee's petitions for rehearing and for rehearing en banc. The full court has been advised of the petitions, and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

The opinion filed August 31, 2006, slip. op. 10533, and published at 461 F.3d 1147 (9th Cir.2006) is hereby amended as follows:

1. Replace with in the first paragraph of page 10539 [461 F.3d at 1149-50] of the slip opinion, in footnote 2 on page 10539 [461 F.3d at 1149-50], and in the second paragraph of page 10547 [461 F.3d at 1153].

1074

2. In the last paragraph of page 10549 [461 F.3d at 1155] of the slip opinion, *1074 replace with , replace with , and replace with .

3. Delete from the last sentence of the opinion.

No further petitions for rehearing will be entertained.
OPINION
Under the Older Workers Benefit Protection Act ("OWBPA"), employees may not waive rights or claims arising under the Age Discrimination in Employment Act ("ADEA") unless the waiver is "knowing and voluntary." 29 U.S.C. § 626(f)(1) (2000). To qualify as "knowing and voluntary," a waiver included in an agreement between an employer and its employees must, among other things, be "written in a manner calculated to be understood" by the average employee eligible to participate in the agreement. Id. § 626(f)(1)(A). This appeal presents the question whether a waiver form used by International Business Machines Corp. ("IBM") in connection with a severance benefit package meets that standard. We hold that it does not and was therefore not "knowing and voluntary." Id. § 626(f)(1).
I.
In January 2001, IBM began a reduction in its workforce. As part of its workforce reduction plan, IBM offered each employee selected for termination severance pay and certain benefits in exchange for signing a document entitled "Microelectronics Resource Action (MERA) General Release and Covenant Not To Sue" ("MERA Agreement").[1] Along with the MERA Agreement, IBM issued each selected employee a lengthy document entitled "Microelectronics Division Resource Action Employee Information Package" ("Information Package"), which details the job titles, ages, and numbers of those employees selected and those not selected for termination from various IBM divisions.
Appellants ("the employees")[2] are former IBM employees, each of whom signed the MERA Agreement, or a similar agreement, receiving in return severance pay and benefits. Based on the data contained in the Information Package, these employees filed charges of age discrimination with various state authorities and with the Equal Employment Opportunity Commission ("EEOC"). The EEOC dismissed all charges, issuing each employee a "Notice of Right To Sue" along with a letter stating that the language of the MERA Agreement satisfies the OWBPA's minimum requirements for "knowing and voluntary" waiver of ADEA rights and claims and is enforceable, thus depriving the employees of their right to pursue their age discrimination claims. The employees then filed this putative collective action in federal court alleging that the MERA Agreement violates the waiver requirements of the OWBPA and that IBM's layoff program constitutes age discrimination in violation of the 1075 ADEA.[3] The employees' OWBPA *1075 cause of action challenged the MERA Agreement's use of both a release covering ADEA claims and a covenant not to sue excepting them, the pairing of which allegedly caused confusion over whether ADEA claims were excepted from the release.
IBM filed a counterclaim seeking relief for the plaintiffs/ employees' breach of the agreements and, predicated thereon, a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).
The district court entered an order granting IBM's motion to dismiss the complaint with prejudice. The parties then stipulated to entry of judgment holding the employees jointly and severally liable on IBM's counterclaim and awarding IBM $27,500.
In dismissing the employees' claims, the district court determined that the MERA Agreement was "written in a manner calculated to be understood by an average individual selected by IBM for employment termination," and was "knowing and voluntary" under the OWBPA. In so holding, the district court cited to Thomforde v. International Business Machines Corp., 304 F.Supp.2d 1143 (D.Minn.2004) (Thomforde I), a single plaintiff action against IBM, in which the Minnesota district court found on summary judgment that an IBM contract, the "Server Group Resource Action (SGRA) General Release and Covenant Not To Sue" ("SGRA Agreement") 0907for present purposes, identical to the MERA Agreement 0907satisfied the OWBPA requirement that waiver of any ADEA right or claim be "written in a manner calculated to be understood" by the average individual. See id. at 1144-45. The employees here now appeal the waiver-based dismissal of their case.

After this appeal was fully briefed but before oral argument, the Eighth Circuit reversed the Minnesota district court's grant of summary judgment in favor of IBM, holding that the SGRA Agreement "is not written in a manner calculated to be understood by the intended participants as required by the OWBPA." Thomforde v. Int'l Bus. Machs. Corp., 406 F.3d 500, 504 (8th Cir.2005) (Thomforde II).[4] The employees maintain (1) that under the doctrine of offensive nonmutual issue preclusion, the Eighth Circuit's ruling is preclusive of an independent determination by this court of the waiver issue and (2) alternatively, that the MERA Agreement does not satisfy the OWBPA's "manner calculated" requirement.
II.
We review de novo a district court's grant of a Rule 12(b)(6) motion to dismiss. Decker v. Advantage Fund, Ltd., 362 F.3d 593, 595-96 (9th Cir.2004); Spink v. Lockheed Corp., 125 F.3d 1257, 1260 (9th Cir. 1997). Upon review, we "must construe the complaint in the light most favorable to the plaintiff and must accept all well-pleaded factual allegations as true." Shwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000). "We also review de novo questions of statutory interpretation." Artichoke Joe's Cal. Grand Casino v. Norton, 353 F.3d 712, 719 (9th Cir.2003).
III.
A.
Added as a collection of discrete amendments to the Age Discrimination in Employment Act ("ADEA") in 1990, 1076 the Older Workers Benefit Protection Act ("OWBPA"), Pub.L. No. 101-433 (codified at 29 *1076 U.S.C. §§ 621,
623, 626, & 630), imposes, in relevant part, mandatory requirements for waivers of ADEA rights and claims, see 29 U.S.C. § 626(f), to ensure that "older workers are not coerced or manipulated into waiving their rights to seek legal relief under the ADEA," see S. REP. No. 101-263, at 5 (1990), as reprinted in 1990 U.S.C.C.A.N. 1509, 1510; see also Oubre v. Entergy Operations, Inc., 522 U.S. 422, 427, 118 S.Ct. 838, 139 L.Ed.2d 849 (1998) ("[The OWBPA] is designed to protect the rights and benefits of older workers. The OWBPA implements Congress' policy via a strict, unqualified statutory stricture on waivers."). Under the OWBPA, "[a]n employee `may not waive' an ADEA claim unless the employer complies with the statute." Oubre, 522 U.S. at 427, 118 S.Ct. 838. To this end, "[t]he OWBPA sets up its own regime for assessing the effect of ADEA waivers, separate and apart from contract law. . . . [and] creates a series of pre-requisites for knowing and voluntary waivers." Id.
Section 626(f), part of the OWBPA, sets forth specific requirements for a "knowing and voluntary" waiver.[5] Of primary importance here is the requirement that a waiver be part of an agreement "between the individual and the employer that is written in a manner calculated to be understood by [the] individual, or by the average individual eligible to participate" in a workforce reduction plan. 29 U.S.C. § 626(f)(1)(A).[6] Also relevant to this 1077 case *1077 is the requirement that the selected employee or employees "[be] advised in writing to consult with an attorney prior to executing the agreement." Id. § 626(f)(1)(E). When a dispute arises over whether the requirements of § 626(f) are met, the party asserting the validity of the waiver bears the burden of proof. Id. § 626 (f)(3).
To satisfy the "manner calculated" requirement, "[w]aiver agreements must be drafted in plain language geared to the level of understanding of the individual party to the agreement or individuals eligible to participate "in a group termination plan." " 29 C.F.R. § 1625.22(b)(3) (2005). Employers are thus instructed to "take into account such factors as the level of comprehension and education of typical participants." Id. These considerations "usually will require the limitation or elimination of technical jargon and of long, complex sentences." Id.[7]
As developed in greater detail below, the employees dispute, as they did before the district court, whether the MERA Agreement satisfies the "manner calculated" requirement of § 626(f)(1)(A).

B.

In Thomforde II, the Eighth Circuit considered the precise question we are asked to determine here, holding that "the release of claims signed by Thomforde as part of IBM's involuntary termination program did not satisfy the statutory waiver requirements of the [OWBPA], 29 U.S.C. § 626(f)." 406 F.3d at 501. In addition to parsing the language of the SGRA Agreement, the court noted in its recitation of facts that:

1078

Prior to signing the Agreement, Thomforde asked his supervisor, Andrew Schram, if the exception for ADEA claims contained in the covenant not to sue meant that he could sue IBM if the case was limited to claims under the ADEA. Schram told Thomforde that he would contact IBM's legal department. Schram later sent Thomforde an e-mail stating "Regarding your question on the General Release and Covenant Not to Sue, the wording is as intended by IBM. *1078 The site attorney was not comfortable providing an interpretation for you and suggested you consult with your own attorney." After meeting with his attorney to review the Agreement, Thomforde concluded that he could sign the Agreement and still pursue his claims of age discrimination as long as they were limited to ADEA claims.

Id. at 502 (citation omitted). The Thomforde II panel concluded that "[g]iven the lack of clarity in the Agreement, and IBM's declination to tell Thomforde what it meant by the language, we hold that the Agreement is not written in a manner calculated to be understood by the intended participants as required by the OWBPA." Id. at 504 (emphasis added).

C.

Seeking to capitalize on Thomforde II, the employees argue for the application of offensive nonmutual issue preclusion,[8] which prevents "a defendant from relitigating the issues which a defendant previously litigated and lost against another plaintiff." Parklane Hosiery Co. v. Shore, 439 U.S. 322, 329, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979); see State of Idaho Potato Comm'n v. G & T Terminal Packaging, Inc., 425 F.3d 708, 713 n. 3 (9th Cir.2005) (noting that offensive, as opposed to defensive, nonmutual issue preclusion involves "a plaintiff seek [ing] to prevent a defendant from relitigating an issue that the defendant previously litigated unsuccessfully against a different party"). In Parklane Hosiery, the Supreme Court sanctioned the use of offensive nonmutual issue preclusion and granted to trial courts "broad discretion to determine when it should be applied." 439 U.S. at 331, 99 S.Ct. 645.
We have since specified that the application of offensive nonmutual issue preclusion is appropriate only if (1) there was a full and fair opportunity to litigate the identical issue in the prior action, see Fund for Animals, Inc. v. Lujan, 962 F.2d 1391, 1399 (9th Cir.1992); Resolution Trust Corp. v. Keating, 186 F.3d 1110, 1114 (9th Cir.1999); Appling v. State Farm Mut. Auto. Ins. Co., 340 F.3d 769, 775 (9th Cir.2003); (2) the issue was actually litigated in the prior action, see Appling, 340 F.3d at 775; (3) the issue was decided in a final judgment, see Resolution Trust Corp., 186 F.3d at 1114; and (4) the party against whom issue preclusion is asserted was a party or in privity with a party to the prior action, see id. See also Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 (9th Cir.2006) (setting out standard); Robi v. Five Platters, Inc., 838 F.2d 318, 322 (9th Cir.1988) (same); RESTATEMENT (SECOND) OF JUDGMENTS § 27 & cmt. j (1982) (same).
The Supreme Court's grant of "broad discretion" to trial courts provides those courts the authority to take potential shortcomings or indices of unfairness into account when considering whether to apply offensive 1079 nonmutual issue preclusion, even where the above-listed standard prerequisites *1079 are met. See Parklane Hosiery, 439 U.S. at 331, 99 S.Ct. 645; Appling, 340 F.3d at 776. The potential shortcomings or indices of unfairness identified by the Court include whether (1) "the plaintiff had the incentive to adopt a `wait and see' attitude in the hope that the first action by another plaintiff would result in a favorable judgment" which might then be used against the losing defendant; (2) the defendant had the incentive to defend the first suit with full vigor, especially when future suits are not foreseeable; (3) one or more judgments entered before the one invoked as preclusive are inconsistent with the latter or each other, suggesting that reliance on a single adverse judgment

would be unfair; and, (4) the defendant might be afforded procedural opportunities in the later action that were unavailable in the first "and that could readily cause a different result." Parklane Hosiery, 439 U.S. at 330-31, 99 S.Ct. 645; see also 18A CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 4465 (2002) [hereinafter FED. PRAC. & PROC.] (discussing limitations on nonmutual issue preclusion). It is against this backdrop of concerns that we consider the employees' assertion that Thomforde II controls our decision in this appeal.
IBM takes the position that Thomforde II should not have preclusive effect because (1) the decision in Thomforde II is not "final"; (2) there were prior inconsistent judgments; (3) there is a salient difference between the Thomforde action, a single plaintiff action, and the case before us, a putative collective action; and (4) the issue addressed in Thomforde II is not identical to the one raised in this appeal.
We do not adopt IBM's first three contentions. First, contrary to IBM's assertion that the "district court[in Thomforde] . . . may still consider whether, based on the actual evidence and not just the plaintiff's allegations, the [w]aiver is valid under the OWBPA," the Eighth Circuit's opinion leaves no room for such reconsideration by the district court. See Thomforde II, 406 F.3d at 501 (stating that "the release of claims signed by Thomforde as part of IBM's involuntary program did not satisfy the statutory waiver requirements of the [OWBPA]"). The Eighth Circuit's decision on the waiver question is thus sufficiently "final" even though there are to be further proceedings on remand on the merits of the ADEA action. See Luben Indus., Inc. v. United States, 707 F.2d 1037, 1040 (9th Cir.1983) ("To be `final' for [issue preclusion] purposes, a decision need not possess `finality' in the sense of 28 U.S.C. § 1291."). Instead, the proper query here is whether the court's decision on the issue as to which preclusion is sought is final. It is. See Lummus Co. v. Commonwealth Oil Refining Co., 297 F.2d 80, 89 (2d Cir.1961) (Friendly, J.) (explaining that "`[f]inality' in the context [of issue preclusion] . . . may mean little more than that the litigation of a particular issue has reached such a stage that a court sees no really good reason for permitting it to be litigated again"); see also FED. PRAC. & PROC. § 4434 ("[I]ssue preclusion [has been applied] to matters resolved by preliminary rulings or to determinations of liability that have not yet been completed by an award of damages or other relief. The most prominent [of those] decisions have involved issues that were resolved by appeal prior to final judgment in the first action." (emphasis added)).
Second, the two judgments that IBM offers up as "prior inconsistent judgments" 0907Thomforde I (in favor of IBM) and the district court's ruling in this action (in favor of IBM) 0907are not pertinent judgments for the purposes of an issue preclusion determination. Thomforde II reversed Thomforde I, definitively rejecting its "application of a legal 1080 rule to the evidence." RESTATEMENT (SECOND) OF JUDGMENTS *1080 § 29 cmt. f (noting the prior inconsistent judgment rule applies where "the outcomes [of the judgments] may have been based on equally reasonable resolutions of doubt as to the probative strength of the evidence or the appropriate application of a legal rule to the evidence" (emphasis added)). Thomforde I is not a judgment on which a party to the present action may rely, and is not, therefore, inconsistent with Thomforde II for the purposes of our issue preclusion determination.
We also do not consider the district court's decision in this case, which we are here reviewing, to be a prior judgment inconsistent with Thomforde II. Intermediate determinations that are part of ongoing litigation do not trigger the prior inconsistent judgment fairness concerns identified by the Supreme Court in Parklane Hosiery. See 439 U.S. at 330-31, 99 S.Ct. 645. There, the Supreme Court relied on Professor Currie's example in which "a railroad collision injures 50 passengers all of whom bring separate actions against the railroad. After the railroad wins the first 25 suits, a plaintiff wins in suit 26," and Currie's argument "that offensive use of collateral estoppel should not be applied [in such a circumstance] so as to allow plaintiffs 27 through 50 automatically to recover." Id. at 330 n. 14, 99 S.Ct. 645. As this example demonstrates, allowing plaintiffs to cherry-pick favorable prior decisions to preclude issues in an ongoing or subsequent litigation raises serious fairness concerns. By contrast, Thomforde II is the only prior judgment that is final on the waiver matter at issue here because appellants have challenged the district court's decision in this case.
Finally, we acknowledge that there may be merit to IBM's contention that, based on the "different stakes and tactical considerations" at play in a single-plaintiff action as compared to a putative collective or class action, a defendant should not be precluded from relitigating an issue in a later collective or class action if it did not have a full and fair opportunity to litigate the issue in an earlier single-plaintiff action. The lone case cited by IBM,

Schwab v. Philip Morris USA, Inc., No. CV 04-1945 JBW, 2005 WL 2401645 (E.D.N.Y., Sept.27, 2005), however, does not support its per se position that a final determination of an issue in a single-plaintiff action cannot preclude relitigation of that issue in a later-brought collective or class action. In Schwab, class action plaintiffs sought to preclude Philip Morris, the defendant, from relitigating the issue of whether it had conspired with other tobacco companies to defraud the public. 2005 WL 2401645, at *1. The decision in Schwab primarily turned on the fact that the prior case was based on distinct substantive legal grounds 0907state consumer fraud law rather than a RICO-based theory0907not on the fact that the prior case was brought by a single plaintiff. See id. at *1-2. We further note that here the two litigations were occurring nearly simultaneously, so invocation of issue preclusion in this case was foreseeable and IBM had every incentive to litigate Thomforde "fully and vigorously." See Parklane Hosiery, 439 U.S. at 330, 332, 99 S.Ct. 645.
In the end, we do not need to decide whether the single-plaintiff nature of Thomforde is alone sufficient to preclude nonmutual issue preclusion. A comparison of these actions convinces us that, while the question is close, the issue decided in Thomforde is not identical to that raised here. Thomforde II, therefore, cannot preclude us from reaching the merits of this appeal.
Several factors bear on the question of whether the issue decided in Thomforde II is sufficiently similar to the one 1081 raised here, including whether there is a "substantial *1081 overlap between the evidence or argument . . .
advanced" in both proceedings, whether "new evidence or argument involve[s] the application of the same rule of law" as applied in the earlier decided action, and the degree to which the claims advanced in both actions are "closely related." Resolution Trust, 186 F.3d at 1116.
IBM maintains that Thomforde II should not have preclusive effect here because the Eighth Circuit's holding in that case rested on two bases0907"the lack of clarity in the Agreement" and "IBM's declination to tell Thomforde what it meant by the language." See Thomforde II, 406 F.3d at 504. The second consideration is particular to the individual plaintiff in Thomforde and absent here.
It is far from clear exactly what significance the Thomforde II panel gave to IBM's refusal to clarify the SGRA Agreement. The bulk of the opinion is devoted to explaining why the language of the agreement lacks clarity. Id. at 503-04. The significance of IBM's refusal to explain the terms of the agreement to Thomforde is not analyzed. Nevertheless, the Eighth Circuit did point to that refusal in its final summary of the grounds for its decision. That being so, we cannot conclude that this distinct set of facts, applicable to the individual plaintiff in Thomforde but not to the named plaintiffs or the putative class in this case, had no role in the Eighth Circuit's ultimate conclusion that the waiver was invalid.
We note that Thomforde II stated, in no uncertain terms, that clarification outside the scope of the SGRA Agreement would not satisfy the strict requirements of the OWBPA. See 406 F.3d at 504 n. 1. It is, therefore, rather unlikely that IBM's declination to clarify the agreement played a material role in Eighth Circuit's determination. With no way to verify this hunch, however, we decline to so assume.
Because the Eighth Circuit's reasoning did not end with analysis of the language of the SGRA Agreement, but instead, expressly took into account facts specific to the individual plaintiff in that case, we conclude that the issues are not sufficiently identical between that case and this one for offensive nonmutual issue preclusion to apply. We therefore turn to the merits of this appeal.
D.
At the outset of the MERA Agreement, the employee is "advised to consult an attorney" prior to signing. The MERA Agreement goes on to provide, in relevant part:
If you feel that you are being coerced to sign this General Release and Covenant Not to Sue (hereinafter "Release"), [or] that your signing would for any reason not be voluntary . . . you are encouraged to discuss this with your manager, the MERA Project Office or Human Resources before signing this Release.

In exchange for the sums and benefits received pursuant to the terms of the MICROELECTRONICS RESOURCE ACTION (MERA), [EMPLOYEE NAME], (hereinafter "you") agrees to release and hereby does release [IBM] . . . from all claims, demands, actions or liabilities you may have against IBM of whatever kind including, but not limited to, those that are related to your employment with IBM, the termination of that employment, or other severance payments or your eligibility for participation in the Retirement Bridge Leave of Absence, or claims for attorneys' fees.

. . . .

1082

You also agree that this Release covers, but is not limited to, claims arising from the [ADEA], as amended, . . . and any other federal, state or local law dealing *1082 with discrimination in employment, including, but not limited to, discrimination based on sex, sexual orientation, race, national origin, religion, disability, veteran status or age. . . . This Release covers both claims that you know about and those that you may not know about which have accrued by the time you execute this Release.

. . . .

You agree that you will never institute a claim of any kind against IBM . . . including, but not limited to, claims related to your employment with IBM or the termination of that employment or other severance payments or your eligibility for participation in the Retirement Bridge Leave of Absence. If you violate this covenant not to sue by suing IBM . . ., you agree that you will pay all costs and expenses of defending against the suit incurred by IBM . . ., including reasonable attorneys' fees, and all further costs and fees, including attorneys' fees, incurred in connection with collection. This covenant not to sue does not apply to actions based solely under the [ADEA], as amended. That means that if you were to sue IBM . . . only under the [ADEA], as amended, you would not be liable under the terms of this Release for their attorneys' fees and other costs and expenses of defending against the suit. This Release does not preclude filing a charge with the U.S. Equal Employment Opportunity Commission.

. . . .

You hereby acknowledge that you understand and agree to this General Release and Covenant Not to Sue.

End Note 1 of the agreement explains that "[t]he [ADEA] prohibits employment discrimination based on age and is enforced by the [EEOC]."

E.

1. In arguing that the MERA Agreement is unclear and confusing, the employees maintain that the last sentence of the covenant not to sue,[9] when read in conjunction with End Note 1,[10] conveys "the impression that, notwithstanding the waiver, IBM employees could still obtain individual relief for their ADEA claims [filed with the EEOC]." Section 1625.22 of the Code of Federal Regulations provides that "[a] waiver agreement must not have the effect of misleading, misinforming, or failing to inform participants and affected individuals." 29 C.F.R. § 1625.22(b)(4). The employees argue that given the last sentence of the covenant not to sue, it was "incumbent upon IBM to provide sufficient information so as not to mislead them" about their ability to obtain victim-specific relief by filing claims with the EEOC, the availability of such relief being, apparently, an open legal question. See generally EEOC v. Waffle House, Inc., 534 U.S. 279, 294-98, 122 S.Ct. 754, 151 L.Ed.2d 755 (2002).[11]
The language that the employees challenge, however, does not exaggerate or misrepresent the availability of relief via the EEOC. It merely notes that such relief is unaffected by the MERA Agreement. That representation is accurate. See 29 U.S.C. § 626(f)(4) ("No waiver agreement may affect the [EEOC's] rights and responsibilities to 1083 enforce this chapter. No waiver may be used to justify interfering *1083 with the protected right of an employee to

file a charge or participate in an investigation or proceeding conducted by the[EEOC]."); see also S. REP. No. 101-263, at 35, as reprinted in 1990 U.S.C.C.A.N. 1509, 1541 ("The legislation provides that a waiver may not interfere with the EEOC's rights and responsibilities to enforce the ADEA, nor may such a waiver be used to interfere with the employee's protected right to file a charge or to participate in an EEOC investigation or proceeding."). We conclude that the last sentence of the covenant not to sue does not render the MERA Agreement invalid.
2. The employees' core complaint is that the MERA Agreement misleads participating employees to believe that, above and beyond their unaffected right to file an ADEA claim with the EEOC, they retain the right to pursue independently an ADEA claim in court. They contend that the phrasing of the release and covenant not to sue engenders confusion over whether ADEA claims are in fact covered by the release or are excepted from it. We agree, and hold that the MERA Agreement does not satisfy the "manner calculated" requirement of the OWBPA. The employees' waiver of ADEA claims, along with the accompanying covenant not to sue, was therefore not "knowing or voluntary," and both are unenforceable.
The MERA Agreement contains, on the one hand, a release of "all claims," including "claims arising from the [ADEA]" and, on the other hand, a "covenant not to sue" which includes an "agree[ment] . . . [to] never institute a claim of any kind against IBM . . . related to . . . employment with IBM." It also provides, however, that "[t]his covenant not to sue does not apply to actions based solely under the [ADEA]." (emphases added). Considering this very same language, the Eighth Circuit observed:
[O]ne plausible reading of the document reveals that the employee releases IBM from all ADEA claims and agrees not to institute a claim of any kind against IBM, except the employee may bring an action based solely under the ADEA. Without a clear understanding of the legal differences between a release and a covenant not to sue, these provisions would seem to be contradictory; how can an employee bring a suit solely under the ADEA if the employee has waived all claims under the ADEA?
Thomforde II, 406 F.3d at 503.
We agree. The existence of a technical distinction between legal terms does nothing to demonstrate that the average employee confronted with the MERA Agreement would grasp the import of the distinction in a meaningful way. See id. at 504 ("Despite their distinct purposes, the differences between a release and a covenant not to sue are fairly amorphous and may not be readily apparent to the lay reader."); see also Watts v. BellSouth Telecomms., Inc., 316 F.3d 1203, 1207-08 (11th Cir.2003) (observing, in ERISA context, that what may seem obvious to "attorneys and judges familiar with the law" may not to "the average plan participant"). Instead, to a lay reader0907and, as we discuss below, to many lawyers as well0907these provisions seem first to release all ADEA claims an employee might have, and then to preserve a right to sue under the ADEA, implying retention, not release, of ADEA claims.
IBM protests that it "cannot fairly be faulted for including [in the agreement] a covenant not to sue that is permissible under the law and necessary for IBM to obtain an affirmative remedy [(i.e., the collection of fees and costs)] in the event of a suit based on a waived claim." According to IBM, the release and the covenant not to sue 1084 serve distinct legal purposes. *1084 So they can, but, as a practical matter, the two purposes often merge.
Black's Law Dictionary defines "covenant not to sue" as "[a] covenant in which a party having a right of action agrees not to assert that right in litigation," BLACK'S LAW DICTIONARY 299 (abridged 7th ed.2000) (emphasis added), and a "release" as "the act of giving up a right or claim to the person against whom it could have been enforced," id. at 1034; see also id. at 1276 (defining "waiver" as "[t]he voluntary relinquishment or abandonment . . . of a legal right"). This distinction is reflected in case law. See Medtronic AVE, Inc. v. Advanced Cardiovascular Sys., Inc., 247 F.3d 44, 55 n. 4 (3d Cir.2001) ("A release is a provision that intends a present abandonment of a known right or claim. By contrast, a covenant not to sue also applies to future claims and constitutes an agreement to exercise forbearance from asserting any claim which either exists or which may accrue. . . ." (quotation marks omitted)); Pacific States Lumber Co. v. Bargar, 10 F.2d 335, 337 (9th Cir.1926) ("Releases of, and covenants not to sue, a wrongdoer have from early times been considered distinct. A covenant not to sue one of several joint obligers or joint tortfeasors did not at common law operate to discharge others from liability,

since it was said not to have the effect, technically, of extinguishing any part of the cause of action." (quotation marks omitted)); see also Colton v. N.Y. Hosp., 98 Misc.2d 957, 414 N.Y.S.2d 866, 871-73 (1979) (canvassing the "generally abstrusely worded distinction" between releases and covenants not to sue).
The technical distinction between these terms is sometimes more apparent than real. As the court in Colton observed:
[P]erhaps the most important difference between a covenant not to sue and a release [ ]0907 the effectiveness of the agreement as a bar to subsequent action by a breaching promisor [ ]0907 has long been recognized as being invariably a distinction without a difference. Since equity would not permit specific performance of a covenant not to sue, an action would lie for its breach. The measure of the aggrieved promisee's damages, however, would except for attorneys fees, be equal to his original liability on the underlying claim. Thus, in order to prevent a circuity of actions, where a covenant not to sue was given in perpetuity and did not involve joint torfeasors, it would be deemed to operate as a release, a complete and permanent bar to the underlying action.
414 N.Y.S.2d at 873 (emphasis added) (citation omitted).
Further, the distinction between releases and covenants not to sue becomes particularly murky when both are included in a single document. As the EEOC recognized:
Although ADEA covenants not to sue (absent damages) operate as the functional equivalent of waivers, they carry a higher risk of violating the OWBPA by virtue of their wording. An employee could read "covenant not to sue" or "promise not to sue" as giving up not only the right to challenge a past employment consequence as an ADEA violation, but also the right to challenge in court the knowing and voluntary nature of his or her waiver agreement. The chance of misunderstanding is heightened if the covenant not to sue is added to an agreement that already includes an ADEA waiver clause. The covenant in such a case would have no legal effect separate from the waiver clause. Nonetheless, its language would appear to bar an individual's access to court.
1085 Waivers of Rights and Claims: Tender Back of Consideration, 65 Fed.Reg. 77438, *1085 77443 (Dec. 11, 2000) (emphases added) (to be codified at 29 C.F.R. pt. 1625).
Given this substantive overlap between releases and covenants not to sue, that fact that the MERA Agreement's covenant not to sue contains an exception for ADEA claims necessarily creates potential confusion, as it appears to lift any barrier from proceeding to court with an ADEA claim. The confusion ensues, in part, from including in a single document two concepts that, technically speaking, cannot coexist. Under the classic definitions contained in Black's Law Dictionary and in the case law quoted above, a covenant not to sue is pertinent only if the underlying right is not extinguished, while a release extinguishes any underlying right. Where both nonetheless appear in the same document, the covenant not to sue largely swallows the release 0907and the negation of the covenant not to sue can therefore be read as negating the release as well.
IBM stresses that without the covenant not to sue it would have been deprived of the "full benefit of its bargain" with those employees who signed on to the MERA Agreement, because without the covenant, although "IBM could raise the Release as an affirmative defense and obtain a dismissal of the suit, it still would be out its costs and attorneys' fees." IBM also maintains that the covenant not to sue was drafted to comply with the EEOC regulation that provides: "[n]o ADEA waiver agreement, covenant not to sue, or other equivalent arrangement may impose any . . . penalty, or any other limitation adversely affecting any individual's right to challenge the agreement. . . . [including] provisions allowing employers to recover attorneys' fees and/or damages because of the filing of an ADEA suit." 29 C.F.R. § 1625.23(b).
It very well may have been IBM's intention to draft an agreement that would preserve the right of an employee to challenge without penalty his waiver of ADEA claims as not knowing or voluntary. See Thomforde II, 406 F.3d at 504 (observing that "[t]he intended effect of the Agreement was to release the employee's substantive claims under the ADEA, while preserving the employee's right to challenge the validity of the release through a lawsuit, as provided by the regulations" (citing 29 C.F.R. § 1625.23(b))). If that was IBM's intention, it would have been

quite easy to have accomplished this purpose directly. The MERA Agreement, by contrast, uses a term unfamiliar to lay people, "covenant not to sue," and does not explain how the release and the covenant not to sue dovetail, either in general or as they relate to the ADEA claims. See id. (noting that "the Agreement does not explain how the provisions relate to each other or the limited nature of the exception to the covenant not to sue in light of the release of claims"); see also 29 C.F.R. § 1625.22(b)(3) ("Consideration [of the need to draft waiver agreements in plain language] . . . usually will require the limitation or elimination of technical jargon and of long, complex sentences.").
Indeed, far from explaining the intended, independent functions of the release and of the covenant not to sue, the MERA Agreement muddles the matter by referring to both provisions with the same shorthand name0907"Release"0907indicating interchangeability, not distinction. See Thomforde II, 406 F.3d at 504 (noting same). Adding to the confusion, the paragraph containing the covenant not to sue in fact refers to the covenant and the broader "Release" as if the terms were completely interchangeable. See id. (noting same).
In reaching its conclusion that the MERA Agreement satisfies the "manner calculated" requirement for ADEA 1086 waivers, the district court, looking to the technical, *1086 legal distinction between a release and a covenant not
to sue, noted that "[t]o the extent the language of the[MERA Agreement] requires clarification, the [agreement] explicitly advises affected employees to consult an attorney, their manager, the MERA Project Office or Human Resources prior to signing." IBM now advances a similar argument. We do not agree that the direction to consult an attorney or an IBM employee mitigates confusing waiver language.
As explained in Thomforde II,
[i]t seems axiomatic that if an agreement needs clarification, it is not written in a manner calculated to be understood. To rely on the agreement's direction to seek legal advice, a separate statutory requirement for a valid waiver, see [29 U.S.C.] § 626(f)(1)(E), for clarification of the waiver would nullify the distinct requirement that the agreement be written in a manner calculated to be understood by the participant (as opposed to his attorney).
406 F.3d at 504 n. 1. As this passage indicates, were we to embrace IBM's suggestion that any lack of clarity might be cured by compliance with § 626(f)(1)(E), we would rob all purpose from the distinct "manner calculated" requirement set forth in subsection (A).
We decline, as we must, the invitation to so construe the OWBPA. "[A] statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant." Market Co. v. Hoffman, 101 U.S. 112, 115-16, 25 L.Ed. 782 (1879) (internal quotation marks omitted), cited with approval in Duncan v. Walker, 533 U.S. 167, 174, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001); see United States v. 144,774 Pounds of Blue King Crab, 410 F.3d 1131, 1134 (9th Cir.2005), cert. denied sub nom. Deep Sea Fisheries, Inc. v. United States, ___ U.S. ___, 126 S.Ct. 828, 163 L.Ed.2d 706 (Dec. 12, 2005). As the Sixth Circuit has explained, "Congress's intent in enacting § 626 was to compel employers to provide data so that an employee considering waiving ADEA rights could assess, with the assistance of counsel, the viability of a potential ADEA claim."[12]Raczak v. Ameritech Corp., 103 F.3d 1257, 1259 (6th Cir.1997) (construing 29 U.S.C. § 626(f)(1)(H)); see Am. Airlines v. Cardoza-Rodriguez, 133 F.3d 111, 118 (1st Cir.1998) (following Raczak); see also S. REP. No. 101-263, at 34, as reprinted in 1990 U.S.C.C.A.N. 1509, 1540 (noting that "[d]ue to the complexity of [group termination and exit incentive] programs, the Committee views the assistance of counsel as a practical necessity in analyzing the programs and determining whether a violation of the Act has occurred"). The independent statutory requirement that waivers of ADEA rights and claims be written in a "manner calculated" to be understood by the average affected employee serves a different purpose entirely: that employees do not acquiesce to such waivers unwittingly. See S. REP. No. 101-263, at 5, as reprinted in 1990 U.S.C.C.A.N. 1509, 1510.
1087 *1087 We hold that the MERA Agreement does not satisfy the "manner calculated" requirement of the OWBPA, was not "knowing and voluntary," and cannot be enforced. The district court's dismissal is reversed, and the case is remanded for further proceedings consistent with this opinion.
REVERSED and REMANDED.

[1] The record also contains a later-distributed agreement entitled "Microelectronics Division Resource (MDRA) General Release and Covenant Not To Sue" ("MDRA Agreement"). The MDRA Agreement is, for the purposes of our analysis, indistinguishable from the earlier-distributed MERA Agreement.
[2] Appellants are the named plaintiffs who filed this putative collective action: William Syverson, Ruth Alice Boyd, Dale Cahill, Jack Friedman, Paul Gromkowski, Sylvia Jones, Rolf Marsh, Walter Maslak, James Payne, and Antonio Rivera.
[3] The employees also alleged violation of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1001-1461, but they do not appeal the district court's dismissal of that cause of action.
[4] On June 16, 2005, the Eighth Circuit denied IBM's request for rehearing and rehearing en banc.
[5] Section 626(f), in relevant part, provides:
(1) An individual may not waive any right or claim under this chapter unless the waiver is knowing and voluntary. Except as provided in paragraph (2), a waiver may not be considered knowing and voluntary unless at a minimum 0907
(A) the waiver is part of an agreement between the individual and the employer that is written in a manner calculated to be understood by such individual, or by the average individual eligible to participate;
(B) the waiver specifically refers to rights or claims arising under this chapter;
(C) the individual does not waive rights or claims that may arise after the date the waiver is executed;
(D) the individual waives rights or claims only in exchange for consideration in addition to anything of value to which the individual already is entitled;
(E) the individual is advised in writing to consult with an attorney prior to executing the agreement;
(F)(i) the individual is given a period of at least 21 days within which to consider the agreement; or
(ii) if a waiver is requested in connection with an exit incentive or other employment termination program offered to a group or class of employees, the individual is given a period of at least 45 days within which to consider the agreement;
(G) the agreement provides that for a period of at least 7 days following the execution of such agreement, the individual may revoke the agreement, and the agreement shall not become effective or enforceable until the revocation period has expired;
(H) if a waiver is requested in connection with an exit incentive or other employment termination program offered to a group or class of employees, the employer (at the commencement of the period specified in subparagraph (F)) informs the individual in writing in a manner calculated to be understood by the average individual eligible to participate, as to0907
(i) any class, unit, or group of individuals covered by such program, any eligibility factors for such program, and any time limits applicable to such program; and
(ii) the job titles and ages of all individuals eligible or selected for the program, and the ages of all individuals in the same job classification or organizational unit who are not eligible or selected for the program.
29 U.S.C. § 626(f)(1).
[6] The somewhat awkward language of this subsection is intended to reach both individually tailored termination plans, which allow arms-length negotiations between the employer and the terminated employee, and termination plans "targeted at groups of employees," which normally do not allow for any negotiation of terms. See S. REP. No. 101-263, at 32, as reprinted in 1990 U.S.C.C.A.N. 1509, 1537.

[7] The statute sets up the minimum requirements that must be satisfied before a waiver is found "knowing and voluntary." However, "[o]ther facts and circumstances may bear on the question of whether a waiver is knowing and voluntary, as, for example, if there is a material mistake, omission, or misstatement in the information furnished by the employer to an employee in connection with the waiver." 29 C.F.R. § 1625.22(a)(3). Indeed, "[t]he waiver agreement must not have the effect of misleading, misinforming, or failing to inform participants and affected individuals. [And][a]ny advantages or disadvantages described shall be presented without either exaggerating the benefits or minimizing the limitations." Id. § 1625.22(b)(4); see also S. REP. No. 101-263, at 31, as reprinted in 1990 U.S.C.C.A.N. 1509, 1537 ("[W]aivers not supervised by the EEOC may be valid and enforceable if they meet certain threshold requirements and are otherwise shown to be knowing and voluntary." (emphasis added)).
Although this circuit has not addressed the question, other circuits apply a "totality of the circumstances" test to determine whether a particular waiver is "knowing and voluntary." This further inquiry is necessary, however, only if the minimum statutory requirements are met. See, e.g., Kruchowski v. Weyerhaeuser Co., 423 F.3d 1139, 1142 (10th Cir.2005); Wastak v. Lehigh Valley Health Network, 342 F.3d 281, 294 n. 8 (3d Cir. 2003); Griffin v. Kraft Gen. Foods, Inc., 62 F.3d 368, 373-74 (11th Cir.1995) (per curiam). As we conclude that the MERA Agreement does not satisfy the threshold statutory requirements, we have no occasion to determine whether the "totality of the circumstances" inquiry is the proper one where those requirements are met.
[8] "Rather than using the terms' res judicata' and `collateral estoppel,' the Supreme Court has [in recent years generally] used the terms `claim preclusion' and `issue preclusion,'" Frank v. United Airlines, Inc., 216 F.3d 845, 850 n. 4 (9th Cir.2000) (citing Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 77 n. 1, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984)), a practice we follow in this opinion.
The term "nonmutual" refers to the use of the doctrine by a nonparty to a prior action "to preclude a party to that [prior] action from relitigating a previously determined issue in a subsequent lawsuit against the nonparty." State of Idaho Potato Comm'n v. G & T Terminal Packaging, Inc., 425 F.3d 708, 713 n. 3 (9th Cir.2005); see also Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326-28, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979) (discussing the abandonment of the "mutuality requirement").
[9] "This Release does not preclude filing a charge with the [EEOC]."
[10] "The [ADEA] prohibits employment discrimination based on age and is enforced by the [EEOC]."
[11] We are not presented with, and do not decide the question whether the EEOC may pursue victim-specific relief where an employee has signed a waiver or release of ADEA claims.
[12] Section 626(f)(1)(H) provides:
[I]f a waiver is requested in connection with an exit incentive or other employment termination program offered to a group or class of employees, the employer . . . informs the individual in writing in a manner calculated to be understood by the average individual eligible to participate, as to 0907
(i) any class, unit, or group of individuals covered by such program, any eligibility factors for such program, and any time limits applicable to such program; and
(ii) the job titles and ages of all individuals eligible or selected for the program, and the ages of all individuals in the same job classification or organizational unit who are not eligible or selected for the program.
29 U.S.C. § 626(f)(1)(H).
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