1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-6-1997

Long v. Sears Roebuck & Co

Precedential or Non-Precedential:

Docket 96-1264

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Recommended Citation

"Long v. Sears Roebuck & Co" (1997). 1997 Decisions. Paper 32.

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1

 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 ___________ 

 No. 96-1264 

 ___________ 

 THOMAS LONG 

 vs. 

 SEARS ROEBUCK & COMPANY; 

 SEARS MERCHANDISE GROUP 

 Thomas G. Long 

 Appellant

 ___________ 

 Appeal from the United States District Court 

 for the Eastern District of Pennsylvania 

 (D.C. Civ. No. 95-cv-00141) 

 ___________ 

 

Argued 

 October 11, 1996 

 Before: MANSMANN and GREENBERG, Circuit Judges, 

 and HILLMAN, District Judge.* 

 (Filed February 6, l997) 

 ___________ 

Richard Z. Freemann, Jr., Esquire (ARGUED) 

1650 Market St., 

Suite 4900 

Philadelphia, PA 19103 

 COUNSEL FOR APPELLANT 

Robert M. Goldich, Esquire (ARGUED) 

Rachel S. Lieberman, Esquire 

Wolf, Block, Schorr & 

 Solis-Cohen 

S.E. Corner 15th & Chestnut Streets 

Packard Building, 12th Floor 

Philadelphia, PA 19102 

 COUNSEL FOR APPELLEES 

* Honorable Douglas W. Hillman of the United States 

District Court for the Western District of Michigan, sitting by 

designation. 

Cathy Ventrell-Monsees, Esquire 
2

Laurie A. McCann, Esquire 

Melvin Radowitz, Esquire 

American Association of Retired Persons 

601 E Street, N.W. 

Washington, D.C. 20049 

 COUNSEL FOR AMICUS-APPELLANT 

 AMERICAN ASSOCIATION OF RETIRED PERSONS 

C. Gregory Stewart 

 General Counsel 

Gwendolyn Young Reams 

 Associate General Counsel 

Vincent J. Blackwood 

 Assistant General Counsel 

Jennifer S. Goldstein, Esquire (ARGUED) 

Equal Employment Opportunity Commission 

1801 L Street, N.W. 

Washington, D.C. 20507 

 COUNSEL FOR AMICUS-APPELLANT 

 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 

Ann E. Reesman, Esquire 

Robert E. Williams, Esquire 

Mary Chlopecki, Esquire 

McGuiness & Williams 

1015 15th Street, N.W. 

Suite 1200 

Washington, D.C. 20005 

 COUNSEL FOR AMICUS-APPELLEE 

 EQUAL EMPLOYMENT ADVISORY COUNCIL 

 ___________ 

 OPINION OF THE COURT 

 __________ 

MANSMANN, Circuit Judge. 

 Thomas Long, a former Sears employee, appeals an order 

of the district court granting summary judgment in favor of Sears 

in an action filed by Long based in part on the Age 

Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et

seq., as amended by Title II of the Older Workers Benefit 

Protection Act of 1990 ("OWBPA"), 29 U.S.C. § 626(b). The main 

issue, one of first impression for us, concerns the effect of a 
3

release, drafted by Sears and executed by Long, by which Long 

purported to waive all claims, including those based on age 

discrimination, associated with his termination. The district 

court rejected Long's argument that the release was invalid 

because it failed to meet specific and detailed requirements of 

the OWBPA. The court declined to consider alleged deficiencies 

in the release, concluding that the document, even if flawed, was 

ratified when Long accepted and retained severance benefits paid 

to him following execution of the release. Reasoning that the 

ratified release operated to preclude all claims associated with 

Long's termination, the district court granted summary judgment 

in favor of Sears. 

 Because we are convinced that the ratification doctrine 

should not apply to a waiver of age discrimination claims which 

is invalid under the OWBPA and that Long should not be required 

to tender back severance benefits before proceeding with his age 

discrimination claims, we find that the grant of summary judgment 

 with respect to these claims was inappropriate. We will, 

therefore, reverse in part the order of the district court 

relating to the ADEA claim. We will remand the non-ADEA claims 

for further consideration. 

I. 

 The relevant facts, which relate primarily to Long's 

employment history with Sears, are undisputed. Long, who was 

born in 1936, had a thirty year history with Sears where, 

beginning in 1964, he worked in a variety of sales capacities. 
4

From the early 1980s Long was employed in Sears' Home Improvement 

Products and Services Division (HIPS). As a HIPS employee, Long, 

at different times, sold heating and air conditioning, siding, 

windows, and doors, although his primary responsibility was to 

sell roofing. By all accounts, Long's job performance was 

excellent and his earnings, based on straight commission, were in 

the neighborhood of $100,000 per year. 

 In 1992, Sears analyzed the HIPS division's economic 

performance and concluded that reorganization was warranted. In 

January 1993 Sears announced that its HIPS division, with the 

exception of one unit, would close nation-wide. HIPS employees 

were told that Sears would discontinue its home improvement 

services permanently and that it would lay off employees not 

transferred to other Sears positions by mid-April. Employees 

allegedly were promised that every effort would be made to place 

them elsewhere in the Sears organization and were told that 

placement preference would be given to long-term HIPS employees 

with satisfactory performance. 

 In February 1993 Sears offered Long and certain other 

employees a reorganization package which included severance 

benefits. In exchange for the package, eligible employees were 

asked to sign a "General Release and Waiver" which read as 

follows: 

 GENERAL RELEASE AND WAIVER I 

In consideration of the benefits I will receive under 

the Sears Closed Unit/ Reorganization 

Severance Allowance Plan as described in the 

attached Benefit Notification form, I, 

_________________ hereby release, waive, and 

forever discharge officers, successors, and 
5

assigns from any and all actions, causes of 

action (INCLUDING, BUT NOT LIMITED TO, 

ACTIONS UNDER TITLE VII OF THE CIVIL RIGHTS 

ACT OF 1964, THE AGE DISCRIMINATION IN 

EMPLOYMENT ACT, STATE CIVIL RIGHTS STATUTES, 

AND THE AMERICANS WITH DISABILITY ACT), 

damages or claims of damage of every 

character whatsoever by reason of my 

employment with Sears, whether known or 

hereafter discovered, including, but not 

limited to, my termination from Sears. 

I have read this General Release and Waiver and 

understand all of its terms. I have signed 

it voluntarily with full knowledge of its 

legal significance. I have been given the 

opportunity to consult with an attorney but 

have chosen not to do so. 

 Date:______________ /s/______________________ 

Written in capital letters across the top of the release was the 

following: "DO NOT SIGN THIS UNTIL YOU HAVE READ THE ATTACHED 

NOTICE." 

 The notice attached bore a heading which read: 

"IMPORTANT NOTICE: THIS NOTICE IS BEING PROVIDED TO SATISFY THE 

REQUIREMENTS OF THE OLDER WORKERS BENEFIT PROTECTION ACT." The 

notice itself provided that: 1) an employee would have up to 

forty-five days from receipt of the severance package to decide 

whether to sign the release; 2) the release was revocable for up 

to seven days following its execution and no severance payments 

would be made until this seven day period had passed; 3) a list 

was attached showing the birth dates and job titles of those to 

whom the package had been offered; and 4) if applicable, a list 

was attached which included a list of employees deemed ineligible 

to receive the package. The notice also contained a provision 

suggesting that the employee consult an attorney prior to signing 
6

the release and clarified that rights which might arise in the 

future would not be waived by signing the release. 

 Although he now alleges that he did not understand the 

terms or significance of the release, Long signed the document on 

March 18, 1993. He contends that he was pressured by his 

supervisor to sign and did so, in part, based upon his confidence 

that he would eventually be placed elsewhere in the Sears 

organization. Although he actively sought a transfer, Long was 

not offered another position; his last day of work was April 9, 

1993.1

 On March 8, 1994, after having signed the release and 

receiving more than $39,000 in severance benefit payments,2 Long 

filed charges of discrimination with the Equal Employment 

Opportunity Commission and the Pennsylvania Human Relations 

Commission alleging violations of the Age in Discrimination in 

Employment Act of 1967, 29 U.S.C. § 621-634, and the Pennsylvania 

Human Relations Act of 1955 ("PHRA"), 43 Pa. Cons. Stat. Ann. § 

951-863. Long claimed that he was discriminated against based on 

his age because, following his layoff, Sears "retrained younger 

employees with less seniority" to work in other departments and, 

contrary to its representation, Sears "continued its Home 

Improvement Operations." 

 

1. Because Sears placed Long on a one-year leave of 

absence, his actual date of termination was April 8, 1994. 

2. It is undisputed that Long was not otherwise entitled 

to receive these payments from Sears. Unlike the Sears general 

pension plan, the severance package offered to Long provided for 

twenty-six weeks of pay in addition to other benefits. Sears 

allegedly failed to inform Long that he could opt to accept a 

less generous severance package without executing a release. 
7

 On January 10, 1995, Long filed a complaint in the 

district court claiming age discrimination under the ADEA and the 

PHRA. He also alleged that Sears violated Section 510 of the 

Employment Retirement Security Act of 1974 ("ERISA"), 29 U.S.C. § 

1140, by terminating his employment to avoid further accrual and 

payment of pension benefits, and asserted state common law 

claims.3

 In response to Long's complaint, Sears filed an answer 

raising, among others, the following affirmative defense: 

"Plaintiff has waived and released all claims against [Sears]" 

and "Plaintiff ratified his waiver and released all claims 

against [Sears] by his acceptance of and failure to return his 

severance payment." 

 Thereafter, Sears filed a motion for summary judgment, 

alleging that Long's claims were barred by the release. 

Specifically, Sears argued that the release satisfied the 

requirements of the OWBPA and that, in any event, Long had 

ratified the release, making it enforceable despite any statutory 

deficiencies. Long opposed this motion with facts alleged to 

demonstrate discrimination and filed a cross-motion for summary 

judgment contending that the release was invalid for failure to 

comply with the requirements of the OWBPA4 and was void and 

 

3. In October, 1995, Long amended his complaint to add a 

claim alleging that Sears discriminated against him on the basis 

of age after the date of his termination when it failed to rehire 

him. 

4. Specifically, Long alleges that the release violated 

the OWBPA in the following respects: 1) it purported to bar 

future claims; 2) the release was not accompanied by the required 
8

unenforceable because it had been obtained by fraud. Long agreed 

to credit severance pay received against any damages awarded. 

 On March 1, 1996, the district court granted summary 

judgment in favor of Sears on all claims without addressing 

Sears' compliance with the OWBPA. While the court recognized 

that "[w]hether the Sears release meets the facial requirements 

of the OWBPA is a question of fact not resolvable here by summary 

judgment," it concluded that summary judgment was, nonetheless, 

appropriate. In reaching this conclusion the district court 

relied on authority holding that releases which fail to conform 

to the OWBPA are merely voidable and, under traditional 

principles of contract law, may be ratified by retention of 

benefits received. Citing the decision in Wamsley v. Champlin 

Refining and Chemical, Inc., 11 F.3d 534 (5th Cir. 1993), the 

district court concluded that the ratification doctrine had 

survived the enactment of the OWBPA and operated to bar Long's 

claims: 

Because Long retained, and did not offer to return more 

than $39,000 paid in consideration of a 

Release that he suspected was defective, we 

hold that he ratified that Release and is 

precluded from pressing claims arising from 

his termination by Sears. 

1996 WL 94537 at *8 (E.D. Pa. March 1, 1996).5 This appeal 

followed. 

(..continued) 

data relating to other Sears employees; and 3) the release 

materials were incomprehensible to Long and other employees. 

5. Two days prior to trial the district court, in a pretrial conference, signalled its intent to grant summary judgment 

in favor of Sears. Understanding that the court's decision 

turned on his retention of benefits, Long submitted a brief in 

which he offered to tender the money. This brief and the court's 
9

II. 

 Our review of the district court's grant of summary 

judgment is plenary. "[B]ecause the facts are undisputed, we 

decide [this] appeal as a matter of law." DiBiase v. SmithKline 

Beecham, 48 F.3d 719 (3d Cir.), cert. denied, 116 S. Ct. 306 

(1995). The legal questions before us are straightforward: (1) 

Are releases of ADEA claims which fail to conform to the 

requirements of the OWBPA enforceable or can they be rendered 

enforceable, or ratified, by an employee's acceptance and 

retention of severance benefits? (2) Where ratification does not 

apply, does retention of severance benefits operate nonetheless 

to prevent an employee from pursuing a claim under the ADEA?6 

(3) Where a release of ADEA claims is invalid under the OWBPA and 

does not, therefore, release the employer from liability for the 

ADEA claims, is the release nonetheless effective in insulating 

the employer with respect to non-ADEA claims covered by the 

release? 

 The district court granted summary judgment in favor of 

Sears, predicting that we would hold that Long, by retaining 

(..continued) 

order granting summary judgment were docketed the same day. 

Apparently, they "crossed in the mail." 

6. Long also asks that we determine whether the release at 

issue waived future claims in violation of the OWBPA. Because 

the district court found it unnecessary to determine whether the 

release did, in fact, fail to comply with the OWBPA, our 

consideration of this issue would be premature. Our disposition 

of this appeal will require that the district court assess the 

merits of this argument, as well as Long's other allegations of 

statutory deficiency. 
10

severance benefits, ratified the allegedly defective release and, 

as a result, is precluded from pursuing a claim under the ADEA. 

This prediction was based, in part, on the decision in Ponzoni v. 

Kraft General Foods, 774 F. Supp. 299 (D.N.J. 1991), aff'd, 968 

F.2d 14 (3d Cir. 1992). In Ponzoni, a pre-OWBPA case, we 

affirmed without opinion the district court's determination that 

a release of ADEA claims which was not knowing and voluntary 

could be enforced, nonetheless, because it had been ratified 

through retention of benefits. As we will explain, we conclude 

that the enactment of the OWBPA changed the legal landscape with 

respect to the release of ADEA claims. In light of the law as it 

now stands, we conclude that the ratification doctrine does not 

apply to ADEA releases which fail to comply with the OWBPA.7 As 

a result, the district court erred in granting Sears' motion for 

summary judgment. This error is rooted in the fact that the law 

with respect to employee releases which fail to comply with the 

OWBPA is unsettled. 

 In order to place the issues raised here in context we 

turn to the language and legislative history of the OWBPA. 

III. 

 The Older Workers Benefit Protection Act became 

effective on October 16, 1990, as an amendment to the ADEA. Its 

purpose was two-fold: to "make[] clear that discrimination on 

 

7. The decision in Ponzoni does not control the outcome of 

this case as our affirmances, without opinion, of district court 

decisions are not binding precedent. See Ransom v. Marrazzo, 848 

F.2d 398, 411 (3d Cir. 1988). 
11

the basis of age in virtually all forms of employee benefits is 

unlawful," and to "ensure[] that older workers are not coerced or 

manipulated into waiving their rights to seek legal relief under 

the ADEA." S. Rep. No. 263, 101st Cong., 2d Sess. 2 (1990). 

Congress' concern over employee waiver of rights under the ADEA 

was summarized as follows: 

[E]arly retirees or employees offered the chance to 

participate in exit incentive or other group 

termination programs can effectively be 

forced to waive their right to file a claim 

when the employer conditions such 

participation on the signing of a waiver. 

The problem is particularly acute in largescale terminations and lay-offs, where an 

individual employee would not reasonably be 

expected to know or suspect that age may have 

played a role in the employer's decision, or 

that the program may be designed to remove 

older workers from the labor force. The 

preemptive waiver of rights occurs before a 

dispute has arisen and indeed before an 

employee is even aware of any potential or 

actual pattern of discrimination. Such a 

pre-emptive waiver may also preclude the 

employee from asserting claims that arise out 

of subsequent discriminatory conduct by the 

employer, e.g. hiring younger workers to 

replace the terminated older workers. These 

waivers are both unfair and inconsistent with 

the intent of the ADEA. 

S. Rep. No. 79, 101st Cong., 1st Sess. 9 (1989).8 The Report 

emphasized the need for protective legislation, noting that: 

Age discrimination victims typically earn more than the 

minimum wage, but their average annual income 

is only $15,000. Moreover, once out of work, 

these older Americans have less than a 50/50 

chance of ever finding new employment. 

The[y] often have little or no savings, and 

may not yet be eligible for Social Security. 

 Accordingly, it is reasonable to assume that 

many employees would be coerced by 

 

8. This language was adopted by reference in S. Rep. No. 

263, 101st Cong. 2d Sess. 15 (1990). 
12

circumstances into accepting significant 

compromises. This is especially true where 

employees are unable even to recognize the 

potential of their claims because no dispute 

exists between them and their employer. 

Id. In an effort to protect older workers, Title II of the OWBPA 

defined those circumstances in which ADEA waivers would be 

permitted. 

 Prior to the OWBPA, the general approach of the courts 

was to find waivers permissible subject to a requirement that 

they be made "knowingly" and "willfully." "Under the [OWBPA,] 

waivers must [still] be made knowingly and voluntarily. However, 

they cannot be deemed to be so unless several statutory minima 

are met." Pellicciotti, Older Workers Benefit Protection Act of 

1990: Congress Responds to Betts Decision, 35 Res Gestae 114, 

115 (1991). These minimum requirements are set forth at 29 

U.S.C. § 626(f): 

 (1) An individual may not waive any right or claim 

under this chapter unless the waiver is knowing and 

voluntary. . . . [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 understood by such individual . . . 

 (B) the waiver specifically refers to rights or claims 

arising under this chapter; 

 (C) the individual does not waive rights or claims that 

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) . . . (ii) if a waiver is requested in connection 

with an exit incentive or other employment termination 
13

program offered to a group or class of employees, the 

individual is given . . . 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; 

 (H) if a waiver is requested in connection with an . . 

. employment termination program . . . the employer . . 

. notifies the individual in writing in a manner 

calculated to be understood . . . as to -- 

 (i) any class, unit or group of individuals covered by 

such program, any eligibility factors for such program, 

and any time limits applicable . . .; 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. 

 . . . 

The statute also specifies that the party asserting the validity 

of the waiver bears the burden of showing that the waiver was 

indeed knowing and voluntary. 29 U.S.C. § 626(f)(4). 

 While Congress carefully defined what must be included 

in a knowing and voluntary waiver under the ADEA, it did not 

characterize the legal effect of a release which fails to satisfy 

the statutory requirements. Courts asked to determine whether 

deficient waivers should be enforced have purported to rely on 

"clear" congressional intent. They have reached different 

conclusions, however, with respect to whether Congress intended 

that waivers deficient under the OWBPA be declared void or merely 

voidable. 

IV. 
14

 The view that deficient releases are void was adopted 

by the Court of Appeals for the Seventh Circuit in Oberg v. 

Allied Van Lines, Inc., 11 F.3d 679 (7th Cir. 1993).9 The court 

in Oberg held that releases which fail to conform to the OWBPA 

have no legal significance; they cannot be ratified or enforced.10

 Relying on OWBPA language that "[a]n individual may not waive

any right or claim . . . unless the waiver is knowing and 

voluntary," the court concluded that, "unless a waiver contract 

takes the form required by the statute, an employer and an 

employee cannot contract to waive the ADEA provisions. . . . No 

matter how many times parties may try to ratify such a contract, 

the language of the OWBPA . . . forbids any waiver." Id. at 682. 

 

9. On January 9, 1997, the Court of Appeals for the Sixth 

Circuit issued its decision in Raczak v. Ameritech Corp., No. 95-

1082, 1997 WL 5921 (6th Cir. Jan. 9, 1997). Two panel members, 

on divergent grounds, agreed that the plaintiffs were not 

precluded from pursuing an action under the ADEA despite having 

executed waivers deficient under the OWBPA and retained payments 

made pursuant to these waivers. One of these panel members 

adopted the ratification analysis set forth in Oberg while the 

other concurred in the result only, concluding that "there was 

not a total failure of consideration when the ADEA claim was 

instituted without plaintiffs tendering back benefits received . 

. ." and "reserv[ing] judgment as to whether a release limited to 

ADEA claims would require a different result." Id. at *15. The 

remaining panel member adopted an analysis similar to that 

undertaken by the district court in this case. 

 This decision, fractured though it is, means that the 

appellate courts, prior to our opinion, are evenly divided on the 

issue of tender back. 

10. The common law doctrine of ratification results in the 

enforcement of "a promise to perform all or part of an antecedent 

contract of the promisor, previously voidable by him, but not 

avoided prior to the making of the promise." Restatement 

(Second) of Contracts § 85 (1981). Promises that are void cannot 

be ratified. Void promises are not legally binding, have no 

legal effect and, therefore, are not contracts. Id. § 7 cmt. a. 
15

 In light of the OWBPA's unambiguous statutory prohibition 

against waiver where one or more of the statutory requirements 

are absent, the court concluded that further analysis was 

unwarranted: 

When the plain text of a statute is clear then "courts 

must presume that a legislature says in a 

statute what it means and means in a statute 

what it says. When the words of a statute 

are unambiguous then, this first canon is 

also the last: `judicial inquiry is 

complete.'" Connecticut Nat. Bank. v. 

Germain, 503 U.S. 249, 253-54 (1992). 

Id. at 682 (citations omitted). 

 Having pronounced non-conforming releases void, the 

court next considered whether an employee is required to tender 

back severance benefits in order to maintain suit under the 

ADEA.11 The court concluded that employees "were not required to 

tender back their severance benefits before filing ADEA claims, 

notwithstanding [the] previously executed waiver of all claims. . 

. ." Id. at 684. 

 The Courts of Appeals for the Fourth and Fifth Circuits 

have rejected the Oberg approach, holding instead that defective 

waivers are merely voidable and are, therefore, subject to 

ratification by an employee's retention of severance benefits.12 

 

11. Because void releases cannot be ratified, the court did 

not consider whether failure to tender back might amount to 

ratification. 

12. The Oberg analysis has been adopted by a majority of 

district courts outside the Seventh, Fourth and Fifth Circuits. 

See EEOC v. Sara Lee Corp., 923 F. Supp. 994 (W.D. Mich. 1995) 

(no ratification; where waiver is deficient under the OWBPA, 

employer and employee cannot contract to waive ADEA provisions); 

Elliott v. United Technologies Corp., 94 CV 01577, slip op. (D. 

Conn. March 24, 1995) (ratification at odds with plain language 

of the OWBPA); Soliman v. Digital Equipment Corp., 869 F. Supp. 
16

See Wamsley v. Champlin Refining and Chemicals, Inc., 11 F.3d 534 

(5th Cir. 1993); and Blistein v. St. John's College, 74 F.3d 1459 

(4 

th Cir. 1996). In Wamsley the court wrote: 

We do not interpret the language of section 626(f)(1) 

[of the OWBPA] to mean that a waiver which 

fails to meet the requirements of subsections 

(A) through (H) is void of legal effect. 

Rather, we interpret it to mean that such 

waivers are not knowing and voluntary and 

thus are subject to being avoided at the 

election of the employee. . . . 

Therefore, we hold that neither the language nor the 

purpose of the OWBPA indicates a 

congressional desire to deprive an employee 

of the ability to ratify a waiver that fails 

to meet the requirements of the OWBPA. When 

[the employees] chose to retain and not 

tender back to [the employer] the benefits 

paid them in consideration for their promise 

not to sue . . ., they manifested their 

intention to be bound by the waivers and 

thus, made a new promise to abide by their 

terms. 

(..continued) 

65 (defective release cannot be ratified; tender back will chill 

bringing of meritorious claims) (D, Mass, 1994); Raczak v. 

Ameritech Corp., 1994 WL 78099 (E.D. Mich. 1994), rev'd in part, 

No. 95-1082, 1997 WL 5921 (6th Cir. Jan. 9, 1997), (Oberg

approach better reasoned); Carr v. Armstrong Air Conditioning, 

817 F. Supp. 54 (N.D. Ohio 1993) (plaintiff waived no rights 

since severance agreement violated the OWBPA; tender requirement 

not consistent with purposes of the ADEA); Pierce v. Atchison, 

Topeka and Santa Fe Railway Co., 1993 WL 18437 (N.D. Ill. 1993) 

(OWBPA requirements preclude waiver by ratification); Collins v. 

Outboard Marine Corp., 808 F. Supp. 590, 594 (N.D. Ill. 1992) 

(scope of defective release did not include claim under ADEA; 

consideration received need not be returned since it was not paid 

for relinquishment of ADEA claim); Issacs v. Caterpillar, Inc., 

765 F. Supp. 1359 (C.D. Ill. 1991) (ratification and tender-back 

not applicable to releases deficient under the OWBPA). But see

Hodge v. New York College of Podiatric Medicine, 940 F. Supp. 579 

(S.D.N.Y. 1996) (Oberg rejected; defective releases subject to 

ratification); and Rivers v. Northwest Airlines, Inc., 71 Fair 

Empl. Prac. Cas. (BNA) 1217 (E.D. Mo. 1995) (failure to tender 

back benefits precluded ADEA claim even where release was 

deficient under OWBPA). 
17

Id. at 539-40. In part, the court's conclusions were drawn from 

the legislative history of the OWBPA: 

 The legislative history indicates that the 

fundamental purpose of the OWBPA waiver 

provisions is to ensure that an older worker 

who is asked to sign an ADEA waiver does so 

in the absence of fraud, duress, coercion, or 

mistake of material facts. S. Rep. No. 101-

263, 101st Cong., 2d Sess. (1990). . . . The 

circumstances against which these provisions 

were designed to protect are the same 

circumstances that have traditionally given 

rise to grounds upon which a party can avoid 

contractual obligations. That the Committee 

enumerated several of the traditional grounds 

of avoidance is significant. Also 

significant is the absence of any language in 

the statute and any statement in the 

legislative history indicating that a waiver 

executed in contravention of the OWBPA 

requirements is void . . . and cannot be 

ratified. . . . 

Id. The court also cited section 626(f)(1)(G) of the Act which 

provides that an employee may revoke a waiver for any reason 

within seven days of its execution and that the agreement is not 

enforceable during that seven-day period. "If non-compliance 

with the other subparts of section 626(f)(1) rendered the 

agreement void, there would be no need for subpart (G)." Id. at 

539. According to the court, declaring defective waivers void: 

would be inconsistent with one of the expressed 

purposes of the ADEA: "to help employers and 

workers find ways of meeting problems arising 

from the impact of age on employment." 29 

U.S.C. § 621(b). The simplest and easiest 

way to further this purpose is to give effect 

to private agreements which resolve agerelated employment problems without the 

inevitable delays and costs associated with 

litigation. 

Id.
18

 Finally, the court held that "justice and equity 

require the employee who seeks to avoid the obligations to which 

he agreed under the settlement agreement to return the 

consideration which he received for his promise not to sue." Id.

at 542. 

 While the district court in the case before us adopted 

the reasoning underlying the decision in Wamsley, on balance we 

find the Oberg approach to tender back to be more consistent with 

the purposes underlying the OWBPA. 
19

V. 

 While we, like the court in Oberg, reject the argument 

that Long is precluded from maintaining an ADEA claim because he 

retained severance benefits, we reach this end via a different 

route. In both Oberg and Wamsley the courts focused first upon 

whether a defective release should be characterized as void or 

voidable. It was only after this question was resolved that the 

courts considered the import of the plaintiff's failure to return 

severance benefits. In Wamsley, the court concluded that the 

allegedly defective release was voidable. The plaintiff's 

retention of benefits served to ratify the defective release and, 

therefore, suit was barred. The court in Oberg reasoned that 

defective releases were void and that ratification could not 

apply. The court found it necessary, however, to address the 

issue of retention of severance benefits in that tender back of 

benefits has been viewed by some courts as a prerequisite to 

suit. The court in Oberg relied on Supreme Court precedent and 

other policy arguments to hold that tender back should not be a 

prerequisite to an ADEA suit where the release at issue is 

defective under the OWBPA. 

 Although the analysis in Oberg and Wamsley might 

suggest otherwise, resolution of the void/voidable issue does not 

control our disposition of this appeal. No matter how we 

characterize a release which fails to comply with the OWBPA - 

void or voidable -- we must, under either theory, decide whether 

Long's retention of severance benefits should prevent him from 

pursuing his ADEA claim. Because we conclude that neither 
20

ratification nor tender back was meant to apply in the ADEA 

context, we need not address the void/voidable distinction.13

 The court in Oberg declared that releases which fail to 

conform to the OWBPA are void and, consequently, found it 

unnecessary to consider the ratification doctrine. Our analysis, 

however, requires that we consider its application. The language 

of the OWBPA and its legislative history convince us Congress did 

not intend that the ratification doctrine be invoked to enforce 

the terms of a deficient release. 

 Prior to the OWBPA, it was generally recognized that 

employees could waive federal ADEA rights in private settlements 

with their employees so long as the employees' consent to the 

settlement was knowing and voluntary. Even during this pre-OWBPA 

period, however, there was disagreement over the standard to be 

applied in assessing whether a waiver was, in fact, knowing and 

voluntary. The Courts of Appeals for the Fourth, Sixth and 

Eighth Circuits held that ordinary state contract law principles 

controlled.14

 

13. Indeed, to resolve that question here is premature. 

The district court has yet to determine whether the release at 

issue is, in fact, defective under the OWBPA. While this case 

does not turn upon whether an allegedly defective release is void 

or voidable, we recognize that it might be necessary to reach 

this question under a different set of facts. For example, 

holding a release of ADEA claims void could have implications for 

non-ADEA claims also covered by the release. 

14. See, e.g., O'Shea v. Commercial Credit Corp., 930 F.2d 

358, 362 (4th Cir.), cert. denied, 502 U.S. 859 (1991); Lancaster 

v. Buerkle Buick Honda Co., 809 F.2d 539 (8th Cir.), cert. 

denied, 482 U.S. 928 (1987); and Runyan v. National Cash Register 

Co., 787 F.2d 1039, 1045 (6th Cir. 1986) (en banc). 
21

 We, however, elected to apply a more stringent federal 

"totality of the circumstances test," reasoning that "in 

recognition of the important interests involved . . . careful 

evaluation of the release form itself as well as the complete 

circumstances in which it was executed [is] warranted." Cirillo 

v. Arco Chemical Co., 862 F.2d 448, 450 (3d Cir. 1988).15 Factors 

relevant in assessing the totality of the circumstances included, 

but were not limited to, the following: 

(1) the clarity and specificity of the release 

language; (2) the plaintiff's education and 

business experience; (3) the amount of time 

plaintiff had for deliberation about the 

release before signing it; (4) whether 

plaintiff knew or should have known his 

rights upon execution of the release; (5) 

whether plaintiff was encouraged to seek, or 

in fact received benefit of counsel; (6) 

whether there was an opportunity for 

negotiation of the terms of the Agreement; 

and (7) whether the consideration given in 

exchange for the waiver and accepted by the 

employee exceed[ed] the benefits to which the 

employee was already entitled by contract or 

law. 

Id. at 451. 

 In enacting the OWBPA, Congress resolved this dispute 

regarding the standard to be applied in determining whether a 

 

15. The totality of the circumstances test was also adopted 

by the Court of Appeals for the Fifth Circuit in O'Hare v. Global 

Natural Resources, Inc., 898 F.2d 1015, 1017 (5th Cir. 1990); and 

by the Court of Appeals for the Second Circuit in Bormann v. AT&T 

Communications, Inc., 875 F.2d 399, 403 (2d Cir. 1989). 

 It is significant that even prior to enactment of the 

OWBPA, we concluded that ordinary contract principles were not 

sufficient to vindicate the protective purpose of the ADEA. 

Cirillo, 862 F.2d at 450. It is difficult, therefore, to 

understand the dissent's "urging" that we retreat to traditional 

common law principles in order to decide this case. 
22

release is "knowing and voluntary." Congress rejected the 

applicability of common law contract principles and declined to 

embrace even the more demanding "totality of the circumstances" 

test: 

Even the decisions that have followed the more 

protective "totality of the circumstances" 

approach . . . have not held that certain 

protective factors must be present . . . . 

The [OWBPA], by contrast, will limit 

unsupervised waivers to certain situations 

and then spell out clear and ascertainable 

standards to govern those situations. 

S. Rep. No. 79, 101st Cong., 1st Sess. 17 (1989) (emphasis 

added). 

 The requirements established in order for releases to 

be "knowing and voluntary" under the OWBPA clearly exceed the 

protections available under the common law. The right to seek 

counsel, the 45-day consideration period, the seven-day right of 

revocation, and the provision of detailed information about those 

affected by group terminations are all protections which were 

unavailable under the "knowing and voluntary" standard of the 

common law. In addition, the OWBPA establishes that waivers must 

be in writing, must specifically refer to rights under the ADEA, 

and are subject to "an average person" standard; whether a 

particular plaintiff understood the implications of the release 

is irrelevant. The OWBPA also effected a shift in the burden of 

proof applicable in judicial proceedings. Where, under the 

common law, the employee challenging a waiver was required to 

show that the waiver was not "knowing and voluntary," the OWBPA 

shifts this burden to the employer. See 29 U.S.C. § 626(f)(3). 
23

These requirements, too, overrode pre-OWBPA decisions applying 

common law principles.16 Most importantly, Congress, after 

grappling with the question of whether to permit ADEA waivers at 

all, stated unequivocally that unless the enumerated requirements 

are met, an individual "may not waive" ADEA rights. 29 U.S.C. § 

626(f)(1) (emphasis added). 

 We are convinced that in enacting the OWBPA, Congress 

intended to occupy the area of ADEA releases and, in doing so, to 

supplant the common law; the OWBPA was enacted to "establish[] a 

floor, not a ceiling." Soliman v. Digital Equipment, 869 F. 

Supp. 65, 68 n.12 (D. Mass. 1994). Enforceability of a waiver is 

made contingent upon the presence of certain enumerated factors. 

 Given the clear and specific goals of the OWBPA, we 

cannot accept that Congress intended that the common law doctrine 

of ratification be applied to releases invalid under the OWBPA.17

 

16. See Taylor v. Gordon Flesch Co., 793 F.2d 858, 862 (7th 

Cir. 1986) (oral waivers enforceable); Runyan v. National Cash 

Register Corp., 787 F.2d 1039 (6th Cir. 1986) (en banc), 479 U.S. 

850 (1986) (if plaintiff understood release, whether anyone else 

would have understood it was not controlling); Lancaster v. 

Buerkle Buick Honda Co., 809 F.2d 539 (8th Cir. 1987) (release 

enforced despite failure to refer to ADEA); and Harrison v. 

Arlington Ind. School Dist., 717 F. Supp. 453, 455 (N.D. Tex.), 

aff'd without op., 891 F.2d 904 (5th Cir. 1989) (under common 

law, employee challenging waiver on "knowing and voluntary" 

grounds carried burden of proof). 

17. It is significant that neither the text of the OWBPA 

nor its legislative history discusses ratification as a bar to 

suit; there is no mention of the ratification doctrine or 

reference to caselaw invoking that doctrine. In fact, at the 

time of the OWBPA's enactment, not a single court of appeals had 

held that a waiver which was not knowing and voluntary could, 

nonetheless, be enforced pursuant to a ratification theory. Many 

courts, however, including ours, had resolved waiver questions 

without reference to the doctrine. See O'Hare v. Global Natural 

Resources, Inc., 898 F.2d 1015, 1017 (5th Cir. 1990); Bormann v. 

AT&T Communications, Inc., 875 F.2d 399, 403 (2d Cir. 1989); 
24

 The common law fiction of a "new promise" forged from retention 

of benefits has no place in this statutory scheme.18 To conclude 

otherwise would be to say that Congress only intended that the 

OWBPA requirements apply to the "first" waiver. Such a result is 

inconsistent with the aims of the Act and works a hardship on 

(..continued) 

Cirillo v. Arco Chem. Co., 862 F.2d 448, 451-55 (3d Cir. 1988); 

Coventry v. United States Steel Corp., 856 F.2d 514, 523 (3d Cir. 

1988); Lancaster v. Buerkle Buick Honda Co., 809 F.2d 539, 541 

(8th Cir. 1987); Runyan v. National Cash Register Corp., 787 F.2d 

1039, 1044 (6th Cir. 1986) (en banc). Several of these cases are 

cited in the OWBPA's legislative history. See H.R. Rep. No. 664, 

101st Cong., 2d Sess. 26-27 (1990). Furthermore, we believe that 

it would be wrong to conclude, as does the dissent, that simply 

because ratification is not rejected in the text or legislative 

history of the OWBPA that the common law is unchanged. The Act 

establishes that validity and enforceability are inextricably 

linked; adherence to the terms of the Act is fundamental to 

enforcement. The critical point is not that the Act fails 

specifically to do away with ratification. It is instead that 

the ratification doctrine is logically inconsistent with the 

specific terms of the OWBPA. 

18. We are not persuaded by the dissent's argument that 

"the policy of the OWBPA requires that an employee should be able 

to ratify a defective release" (Typescript at 4), nor do we 

believe that the dissent's "dramatic" example purporting to 

illustrate this conclusion is apposite. The OWBPA was written to 

govern waivers of the right to file a claim. This "pre-emptive 

waiver of rights occurs before a dispute has arisen and indeed 

before an employee is even aware of any potential or actual 

pattern of discrimination." S. Rep. No. 79, 101st Cong., 1st 

Sess. 9 (1989). We certainly have not suggested, nor, as far as 

we know, is there any authority for the proposition that the 

OWBPA might apply to the terms of a settlement agreement forged 

after the taking of evidence in a civil trial. 

 In any event, it is a given that even well-designed 

remedial legislation may result in unintended consequences. 

Suffice it to say that we are not aware, nor was counsel for the 

EEOC when questioned at oral argument, of any case where an 

employer has sought to avoid its obligations under a severance 

agreement by invoking its own failure to comply with the OWBPA. 

That case, should it ever arise, is a matter for a different day; 

we need not decide this case on the basis of what might happen in 

a hypothetical case which might come before us at some point in 

the future. 
25

employees who could not have known that by retaining severance 

pay they were, in effect, declining the protection of the OWBPA. 

 This conclusion applies as well to the common law concept of 

tender back of benefits as a pre-requisite to suit under the 

ADEA.19

 Although our rejection of the ratification and tender 

back theories could rest alone on the language and legislative 

history of the OWBPA, we find additional support for our position 

in Supreme Court precedent and the caselaw interpreting that 

precedent. 

VI. 

 In the leading case rejecting a tender back requirement 

under the ADEA, Oberg, the Court of Appeals for the Seventh 

Circuit rejected the employer's argument that "Plaintiffs must 

tender back the consideration received for executing . . . 

 

19. "States that require a tender to challenge a release 

sometimes use the language `condition precedent to suit' and 

sometimes use the language of `ratification.' But there is no 

meaningful difference between the two." Issacs v. Caterpillar, 

Inc., 765 F. Supp. 1359, 1372 (C.D. Ill. 1991). 

 In any event, the legislative history indicates that 

Congress was aware of the benefit retention issue and chose not 

to include in the OWBPA a proviso prohibiting this retention. 

The minority members of the Committee on Education and Labor 

referred to a letter from IBM which mentioned the possibility 

that former employees might retain benefits while pursuing an 

ADEA claim. H.R. Rep. No. 664 at 81 proposed a substitute bill 

containing the following provision: "If a waiver is set aside 

for any reason, any damages received through a discrimination 

action shall be offset by the consideration received for the 

waiver." Id. at 200. This proposal did not mention ratification 

or tender back but was a moderate response to the possibility of 

retention of benefits. It was, nonetheless, rejected. Id. at 

29. 
26

Severance Agreements" in order to maintain a claim under the 

ADEA. 11 F.3d 679, 683. Recognizing that the requirement might 

initially seem "appealing under common law notions of fairness," 

the court nonetheless held that the Supreme Court's decision in 

Hogue v. Southern R. Co., 390 U.S. 516 (1968), compelled a 

different result. Id.20 

 In Hogue, a brief per curiam opinion, the Supreme Court 

considered the tender back requirement in a case arising under 

the Federal Employer's Liability Act ("FELA"), 45 U.S.C. § 51 et

seq. (1939). Stating that the tender back question was to be 

resolved under federal rather than state law, the Court concluded 

that requiring a refund would be "wholly incongruous with the 

general policy of the [FELA]." Id. at 517 (citation omitted). 

The court in Oberg summarized the Hogue decision as follows: 

In Hogue, the Court rejected any notion that state 

common law principles could help resolve the 

tender back question in FELA cases. The 

Court stated that "[t]he question whether a 

tender back of the consideration was a 

prerequisite to the bringing of the suit is 

to be determined by federal rather than state 

law." The Court went on to hold that an 

employee, who previously executed an employer 

release, need not, as a precondition to 

bringing suit under FELA tender back to his 

employer any of the consideration he received 

for executing the release. The Court did, 

however, state that the benefits paid should 

be deducted from any award to the employee. 

 

20. The dissent argues that the holding in Oberg was 

undermined by the decision in Fleming v. United States Postal 

Service AMF O'Hare, 27 F.3d 259 (7th Cir. 1994). In Fleming the 

court of appeals refused to extend the reasoning of Hogue to a 

Title VII case, limiting Hogue to the "context of a federal 

statute that regulates releases, displacing common law rules." 

Id. at 261-62. The OWBPA is precisely such a statute. 
27

Id. at 683-84 (citations omitted). The Court in Oberg was 

"convinced that . . . analogizing the policy of [the] ADEA to 

that of [the] FELA, and thus applying Hogue, [was] correct." Id.

at 684. We agree, based on a number of factors. 

A. 

 First, we note that courts have regularly applied the 

analysis in Hogue to reject tender requirements in lawsuits 

brought under a variety of federal remedial statutes.21 It is 

impossible to view the ADEA as anything other than a federal 

remedial statute. The ADEA was enacted in order to further the 

dual goals of compensating discrimination victims and deterring 

employers from practicing discrimination. As the Supreme Court 

wrote in McKennon v. Nashville Banner Publishing Co., 115 S. Ct 

879, 884 (1995): "The private litigant who seeks redress for his 

or her injuries vindicates both the deterrence and compensation 

 

21. See Botefur v. City of Eagle Point, 7 F.3d 152, 156 

(9th Cir. 1993) (Hogue generalizable to other federal 

compensatory statutes including Title VII); Home Box Office, Inc. 

v. Spectrum Electronics, Inc., 100 F.R.D. 379, 382 n.1 (E.D. Pa. 

1991) (not citing Hogue but holding that under antitrust law 

benefits available under federal law cannot be defeated by state 

common law rules; no ratification where plaintiffs failed to 

tender back); Washner v. American Motors Sales Corp., 597 F. 

Supp. 991 (E.D. Pa. 1984) (not citing Hogue but finding 

Pennsylvania law with respect to ratification releases 

incongruous with Automobile Dealers' Day in Court Act where Act 

was intended to provide redress for the very activity alleged; 

amount retained was to be set off against any damages); Smith v. 

Pinell, 597 F.2d 994, 996 (5th Cir. 1979) (plaintiff allowed to 

proceed under Jones Act despite having signed release and 

received settlement; Jones Act analogized to FELA); Taxin v. Food 

Fair Stores, Inc., 287 F.2d 448 (3d Cir. 1961) (cases regarding 

necessity for tender are in hopeless confusion; in case involving 

Sherman Act, plaintiffs not required to tender back consideration 

received for release). 
28

objectives of the ADEA." In light of this clear recognition of 

the purpose of the ADEA, we are confident that the tender back 

rule rejected in suits under the FELA should be rejected in suits 

under the ADEA as well.22 Imposing a tender back rule in the ADEA 

context would almost certainly compromise the purposes underlying 

that statute. The concerns expressed by our sister court in the 

pre-OWBPA case of Forbus v. Sears Roebuck & Company, 958 F.2d 

1036, 1041 (11th Cir. 1992), apply with equal force here: 

 

22. In reaching this conclusion, we are mindful of the fact 

that other courts have rejected Hogue's applicability to ADEA 

releases. In Wamsley, for example, the court of appeals wrote: 

[Hogue] is founded on the recognition that a "tender 

back" requirement would be "wholly 

incongruous" with the right of recovery 

provided under the FELA and inconsistent with 

the objectives of the act. The right of 

recovery under the FELA, however, is unique 

in that it advances a congressional intention 

of facilitating recovery by injured railroad 

workers against their employers. 

11 F.3d 534, 540. The Court concluded that by eliminating the 

tender requirement in connection with FELA releases, "Congress 

advanced the FELA's purpose of providing liberal recovery to 

injured rail workers . . . . No such purposes underlie the 

ADEA." Id. at 542. 

 There is no question that the FELA and ADEA are not 

identical in purpose. Nor, in our view, need they be in order 

for the rule in Hogue to apply. The mandate of Hogue is that 

tender back requirements imposed in connection with the release 

of federal rights be evaluated in light of the general policy of 

the statute in question. That the ADEA as amended by the OWBPA 

serves a purpose distinct from that underlying the FELA does not 

change the fact that a tender back requirement is "wholly 

incongruous" with the general policies of the ADEA and the OWBPA. 

 In enacting the OWBPA, Congress specifically regulated ADEA 

releases in order to provide employees with protection not 

available at common law. To strip them of this protection 

through application of the common law principle of tender back 

would be anomalous indeed. "When federal law limits a class of 

releases, . . . the common law requiring tender . . . may have to 

give way." Fleming v. U.S. Postal Service, 27 F.3d 259, 260 (7th 

Cir. 1994). 
29

The Court in Hogue found that a tender requirement 

would deter meritorious challenges to 

releases in FELA lawsuits. The same 

deterrence factor applies to ADEA claims. 

Forcing older employees to tender back their 

severance benefits in order to attempt to 

regain their jobs would have a crippling 

effect [sic] on the ability of such employees 

to challenge releases obtained by 

misrepresentation or duress. Such a rule 

would . . . encourage egregious behavior on 

the part of employers in forcing certain 

employees into early retirement for the 

economic benefit of the company. The ADEA 

was specifically designed to prevent such 

conduct, and we reject a tender requirement 

as a prerequisite to instituting a challenge 

to a release in an ADEA case. 
30

B. 

 Second, any doubt about whether Hogue's rejection of 

the tender back rule should apply to ADEA claims was resolved 

with the enactment of the OWBPA. The very specific requirements 

of this Act, considered against the background of its legislative 

history, demonstrate that Congress intended to provide 

protections unavailable at common law; congressional focus 

extended beyond ensuring that ADEA releases were untainted by 

fraud, duress, or some other defect recognized at common law.23 

Congress explicitly stated that it intended to protect employees 

who might waive rights under the ADEA before they were "even 

aware of any potential or actual pattern of discrimination." 

H.R. Rep. No. 664 at 23. See also S. Rep. No. 263, 101st Cong. 

2d Sess. 32 (1990) (recognizing "need for adequate information 

before waivers are signed."). Imposing a tender requirement 

where a release is defective under the OWBPA would effectively 

eviscerate that act. 

 

23. The Court of Appeals for the Fifth Circuit in Wamsley, 

11 F.3d at 1539, rested its conclusion that common law contract 

principles should apply to ADEA releases on one portion of the 

OWBPA's legislative history which provides that the primary 

purpose underlying the OWBPA was to ensure that workers executing 

ADEA waivers do so "in the absence of fraud, duress, coercion, or 

mistake of material facts. S. Rep. No. 263, 101st Cong., 2d 

Sess. (1990), reprinted in 1990 U.S.C.C.A.N. 1509, 1539." The 

court reasoned that these concerns were the same as those "that 

have traditionally given rise to grounds upon which a party can 

avoid contractual obligations." Id. The court's reliance on 

this single statement fails to take into account the fact that 

both the provisions of the statute and other statements in the 

legislative history clearly establish that Congress rejected and 

intended to move beyond application of common law principles. 
31

 Through the OWBPA Congress sought to insure that 

employees faced with deciding whether to sign an ADEA waiver and 

forego an ADEA claim be provided with sufficient information to 

allow them to evaluate the merits of that claim. Applying a 

ratification-tender back rule would require employees in Long's 

position, who arguably did not receive the required information, 

to make a similarly uninformed choice. These employees would be 

forced by the ratification and tender back doctrines to decide, 

in the continued absence of information, whether to surrender 

severance pay or waive all claims under the OWBPA. Employees 

whose releases are defective under the OWBPA would be no better 

off than before the OWBPA was enacted; they could be forced to 

make critical decisions without information deemed essential by 

Congress. 

 The choice which the Wamsley approach, adopted by the 

district court, places before older employees amounts to no 

choice at all: pursue your claim at the risk of your livelihood. 

 Testimony before Congress established that older workers facing 

termination "could not afford" to do without separation benefits. 

 Age Discrimination in Employment Waiver Protection Act of 1989: 

 Hearing on 5.54 Before the Subcomm. on Labor of the Senate Comm. 

on Labor and Human Resources, 101st Cong., 1st Sess. 61 (1989) 

(Testimony of Robert Patterson). Other excerpts from the OWBPA's 

legislative history emphasize the economic plight of older 

workers and Congress' intention to better equip them to make 

choices directly affecting their rights and livelihood. Applying 
32

ratification or a tender back requirement in the circumstances 

presented here would mean that: 

[n]o matter how egregiously releases might violate the 

requirements of the [OWBPA], employees would 

be precluded from challenging them unless 

they somehow . . . come up with the money 

they were given when allegedly forced into 

retirement. 

Issacs v. Caterpillar, Inc., 765 F. Supp. 1359, 1367 (C.D. Ill. 

1991). 

 Courts which have applied tender-ratification 

principles to ADEA releases which fail to conform to the OWBPA 

have rendered the OWBPA meaningless. The gist of these holdings 

is, as Long argues, "to uphold flawed ADEA releases [to] block 

discrimination claims [rather] than . . . require employers to 

comply fully with federal law." (Long br. at 38). 

C. 

 Application of the tender-ratification doctrines and 

rejection of Hogue stem, we believe, from an incomplete analysis 

of the equities involved in allowing an employee to retain 

severance benefits while pursuing ADEA claims. The court in 

Wamsley expressed concern that were ratification and tender back 

held not to apply, employers would face "continued litigation 

with opponents who could use, and very possibly already have 

used, to finance their suit, the very funds paid as consideration 

to avoid litigation." 11 F.2d at 539. Amicus, Equal Employment 

Advisory Council,24 frames the concern even more starkly, warning 

 

24. The Equal Employment Advisory Council, in an amicus

brief filed on behalf of Sears, identifies itself as an 
33

that abrogation of the tender-ratification doctrines, "improperly 

encourages nefarious plaintiffs to secure the benefits awarded 

for signing a release and then press for more gains through a 

legal challenge." (Br. at 7). While this argument, although 

stated in extreme terms, is not without merit, it misperceives 

the economic reality for many older workers. The congressional 

assumptions underlying the OWBPA posit that most covered 

employees need severance benefits to fund living rather than 

legal expenses. Employees with baseless claims have strong 

financial incentives to keep severance payments rather than risk 

them in prolonged litigation. 

 Neither will rejecting ratification and tender back 

principles mean that employees will receive a "double recovery" 

by first accepting a severance payment and later winning a 

judgment. An employer found liable will be entitled to a set-off 

of any severance benefits paid. Oberg, 11 F.3d at 684. In any 

event, the windfall argument cuts two ways. Presumably, 

employers offer severance packages, in part, in exchange for the 

employees' release of claims. Where an employee must tender 

severance benefits prior to suit, it is very difficult to return 

that employee to his pre-release position. He is not restored to 

employment, the employer may still assert the release as an 

affirmative defense, and there is no guarantee that the employee 

will receive the information to which he was entitled under the 

(..continued) 

organization comprised of nearly 300 major U.S. corporations and 

several industry associations. The organization exists "to 

promote sound approaches to the elimination of employment 

discrimination." 
34

OWBPA. "Such an exchange would arguably unjustly enrich the 

employer." Issacs, 765 F. Supp. 1367. 

 The equities associated with applying the logic of 

Hogue to eliminate the tender-ratification rule in the ADEA 

context are at least in equipoise. In this circumstance, we will 

give effect to what we believe Congress intended: the OWBPA was 

designed to protect employees negotiating with employers, not to 

protect employers from overreaching plaintiffs. Employers are, 

by far, in a better position to protect their own interests than 

are older employees. Employers should not need the ratification 

doctrine in order to ensure that their releases are effective; 

they need to comply with the OWBPA. Most OWBPA requirements are 

clear and specific, and, once these requirements are met, waivers 

executed by employees will be valid and enforceable. If prodded 

by necessity into following the mandates of the OWBPA, employers 

will have purchased a valid affirmative defense against suit.25 

D. 

 A final factor favoring Hogue's rejection of a tender 

back rule in the ADEA context is practicality. "[I]mposing a 

 

25. We are not swayed by the argument that rejection of the 

tender-ratification theory will discourage employers from 

offering severance packages and will encourage plaintiffs and 

their counsel knowingly to sign releases that do not comply with 

the OWBPA in order to receive benefits to which they are not 

entitled even though they have no intention of honoring the 

release agreement. The ratification-tender theory has been 

applied only by Courts of Appeals in the Fourth and Fifth 

circuits. There is no empirical evidence to show that in other 

areas of the country severance plans are offered less often or 

that there is a greater volume of litigation turning on allegedly 

inadequate ADEA releases. 
35

`tender' requirement for challenges to ADEA releases would 

frequently create insoluble practical problems." Issacs, 765 F. 

Supp. 1367. 

A tender requirement in such cases would ... create a 

conundrum as to how much [consideration] 

should be tendered to restore the pre-release 

status quo. There is no available method of 

forcing the parties to agree on what an 

appropriate amount would be, since typically 

the employer does not specify how much of the 

consideration paid to the employee is for the 

retirement and how much is for the release. 

Id. at 1368.26

 To require tender of the full amount of a severance 

payment would force an employee to return a sum that typically 

incorporates consideration for multiple factors not challenged in 

an age case: waivers for other violations of law or contract, 

rolled-in vacation and sick time, and a public relations benefit 

to the employer that itself may deter other litigation.27 This 

 

26. Another practical problem identified by the district 

court in Issacs is the fact that "ordinary contract principles" 

governing tender back are not uniform: 

Some states impose no tender requirement for law suits 

that challenge releases. Some state impose 

[a] tender requirement for certain kinds of 

challenges to releases, but not for others, 

becoming enmeshed in the technicalities of 

"void" versus "voidable" contracts. Some 

states impose universal tender requirements. 

 Some states cannot make up their minds from 

decision to decision. 

765 F. Supp. at 1372. The court in Issacs concluded that, "[t]he 

confusion . . . on this issue is reason enough for this Court to 

decide this [question] not on the basis of state-law contract 

doctrines, but -- as Hogue commands . . . on the simple basis of 

what rule best serves the purposes of the ADEA." Id.

27. Our decision in DiBiase v. Smith Kline Beecham Corp., 

48 F.3d 719 (3d Cir.), cert. denied, 116 S. Ct. 306 (1995), does 

not resolve this difficulty as that case did not address tender 
36

approach "would appear to leave the employer better off and the 

employee worse off than they were under the status quo." Id. at 

1370. We are convinced that "[i]t would not serve the purposes 

of the ADEA to impose a tender requirement that creates such 

disputes and inequities." Id. at 1368. 

E. 

 Having examined the language of the OWBPA, the purposes 

underlying its enactment, and the caselaw bearing on its 

application, we hold that where a release of ADEA claims fails to 

comply with the provisions of the OWBPA, the common law doctrines 

of ratification and tender back should not be applied to bar an 

employee's ability to pursue claims under the ADEA.28 In light of 

(..continued) 

back or the effect of OWBPA section 26(f)(1)(D). We do not read 

DiBiase to suggest that all severance pay received must be 

allocated to ADEA claims for purposes of tender back. 

28. Contrary to the position taken in the dissent, we do 

not read our decision in McNemar v. The Disney Store, Inc., 91 

F.3d 610 (3d Cir. 1996), petition for cert. filed Dec. 16, 1996, 

as having any bearing on this case. In McNemar we held that a 

plaintiff was precluded from pursuing a claim under the ADA based 

on the fact that he had made assertions inconsistent with his 

right to recover in proceedings before the Social Security 

Administration and two state agencies. The dissent argues that 

because "our ultimate conclusion . . . was that conduct which the 

ADA never addressed barred McNemar's action. . . . Similarly, 

the OWBPA does not set forth the controlling law in this case as 

it does not address the ratification issue." (Typescript at 11). 

 The point seems to be that a plaintiff may be barred from 

pursuing a claim by factors lying outside the statute pursuant to 

which the claim is brought. We agree with McNemar's basic 

premise. Nevertheless, McNemar is distinguishable from this case 

both legally and factually. McNemar has nothing to do with what 

Congress intended in enacting the OWBPA nor with the analysis of 

those factors outside the statute which might bear on how the 

OWBPA should be applied in a particular circumstance. We have 

discussed these policy underpinnings at length and conclude that 

the issues here have little in common with the invocation of 

judicial estoppel in McNemar. 
37

this holding, the district court's entry of summary judgment in 

favor of Sears on claims brought pursuant to the ADEA was 

erroneous. Accordingly, we will reverse that portion of the 

order of the district court granting summary judgment in favor of 

Sears with respect to the ADEA claims. 

VII. 

 One final matter remains. Our rejection of the 

void/voidable distinction in reaching this result has 

implications for the non-ADEA claims asserted by Long. This case 

has, from its inception, centered on the question of whether the 

release, as a whole, was void or voidable. The parties have 

consistently framed and briefed the issues in terms of this 

distinction and, indeed, the district court rested its grant of 

summary judgment as to all claims on its finding that the release 

as a whole was voidable and had been ratified. Because Long 

approached this case by arguing that the entire release -- 

including non-ADEA claims -- was void we believe that these nonADEA claims were adequately preserved for consideration on 

appeal. 

 Our holding, confined as it is to ADEA releases invalid 

under OWBPA, does not automatically dispose of the remainder of 

Long's claims as might be the case if we had rested our decision 

on the void/voidable distinction. Therefore, in order to ensure 

that the parties have an opportunity to analyze the remaining 

claims in terms of our holding and to present that analysis to 

the district court, we will vacate the district court's entry of 
38

summary judgment as to the non-ADEA claims and remand for further 

consideration. 

Long v. Sears Roebuck & Company, No. 96-1264 

GREENBERG, Circuit Judge, dissenting. 

 The majority succinctly sets forth its primary 

conclusion at the outset of the opinion: "the ratification 

doctrine should not apply to a waiver of age discrimination 

claims which is invalid under the OWBPA and [consequently] Long 

should not be required to tender back severance benefits before 

proceeding with his age discrimination claims." Typescript at 3. 

 The majority reaches this conclusion even though Long executed a 

broad form of release and waiver of his claims for which Sears 
39

paid Long over $39,000 which he retains. Consequently, the 

majority reverses the district court's summary judgment in favor 

of Sears on Long's ADEA claim. While the majority understandably 

seeks to protect the rights of older workers in accordance with 

the Older Workers Benefit Protection Act of 1990, 29 U.S.C. § 

626(f), and surely Congress did intend to protect older workers 

in that act, well-established principles of law lead me to a 

different conclusion. Thus, I dissent with respect to Long's 

ADEA claim. The majority vacates the summary judgment on Long's 

non-ADEA claims, but I dissent on this aspect of the case as 

well, as Long has not preserved his appeal with respect to these 

claims. 

 The majority sets forth the first legal question to be 

decided as follows: can an employee render a release enforceable 

which fails to conform to the requirements of the OWBPA with 

respect to ADEA claims by ratifying the agreement by acceptance 

and retention of severance benefits? And next: if ratification 

does not apply, does the employee's retention of severance 

benefits operate nonetheless to prevent an employee from pursuing 

a claim under the ADEA? Typescript at 9. After further 

discussion, the majority compares Oberg v. Allied Van Lines, 

Inc., 11 F.3d 679 (7th Cir. 1993), cert. denied, 114 S.Ct. 2104 

(1994), with Wamsley v. Champlin Ref. and Chems., Inc., 11 F.3d 

534 (5th Cir. 1993), cert. denied, 115 S.Ct. 1403 (1995), and 

Blistein v. St. John's College, 74 F.3d 1459 (4th Cir. 1996). In 
40

Oberg, the Court of Appeals for the Seventh Circuit held that 

releases not conforming with the OWBPA are void and cannot be 

ratified or enforced. On the other hand, the Courts of Appeals 

for the Fifth and Fourth Circuits in Wamsley and Blistein held 

that defective releases were voidable and that employees could 

ratify them.29 Thus, while Oberg did not require an employee to 

tender back the consideration paid for a release before bringing 

an ADEA suit, Wamsley and Blistein reached the opposite result 

and held that by retaining the consideration the employees 

ratified the releases, thereby barring their ADEA actions. 

 The majority next rejects the methodology of both Oberg

and Wamsley (and thus Blistein, as well), though not the result 

in Oberg as, unlike the Oberg and Wamsley courts, the majority 

holds that it need not decide whether a release not conforming 

with the OWBPA is void or voidable. Indeed, the majority also 

rejects the approach of the parties to this appeal; Long explains 

in his brief that the legal principle governing the 

enforceability of his release depends on the answer to the 

following question: "Is a release obtained in violation of OWBPA 

and by fraud void or merely voidable?" Br. at 18-19. Sears 

argues the case on the same basis, and the Equal Employment 

 

29. I am aware that the OWBPA speaks of an "individual" 

waiving rights and thus does not use the terms "employee" or 

"release." As a matter of convenience I will use the terms 

"employee" and "release," as Long was an employee and the terms 

"waiver" and "release" have the same meaning in the context of 

this case. 
41

Opportunity Commission agrees that we must decide whether a 

release not conforming with the OWBPA is void or voidable. 

 Instead, the majority finds that it need not determine 

whether a release which does not conform to the OWBPA is void or 

voidable because, without regard to the answer to that question, 

"neither ratification nor tender back was meant to apply in the 

ADEA context." Typescript at 20. It reaches that result because 

the "language of the OWBPA and its legislative history convince 

[it that] Congress did not intend that the ratification doctrine 

be invoked to enforce the terms of a deficient release." Id. 

After a discussion of the circumstances leading to the enactment 

of the OWBPA, the majority indicates that: 

Congress intended to occupy the area of ADEA releases 

and, in doing so, to supplant the common law; 

the OWBPA was enacted to 'establish[] a 

floor, not a ceiling.' Enforceability of a 

waiver is made contingent upon the presence 

of certain enumerated factors. Given the 

clear and specific goals of the OWBPA, we 

cannot accept that Congress intended that the 

common law doctrine of ratification be 

applied to releases invalid under the OWBPA. 

 Id. at, 23-24 (citation omitted). 

 I respectfully state that we should not hold that the 

"doctrine of ratification" cannot be applicable to a release 
42

which is invalid under the OWBPA. Certainly nothing in the OWBPA 

states that an employee cannot ratify an invalid release. 

Rather, the act merely provides that an "individual may not waive 

any right or claim under the [ADEA] unless the waiver is knowing 

and voluntary." The act then provides minimum requirements for a 

waiver to be knowing and voluntary. 

 Furthermore, the holding that an employee cannot ratify 

an invalid release sometimes will lead to an outcome directly 

contrary to the policy of the OWBPA to protect older workers. In 

this case, of course, the employee, not the employer, is seeking 

to avoid the settlement agreement. But, as the majority seems to 

recognize, an employer also might seek to avoid its obligation to 

pay severance benefits. Typescript at 24-25 n.18. It seems 

clear that inasmuch as the OWBPA was enacted to protect 

employees' rights, an employee should be able to ratify a 

defective release and hold a recalcitrant employer to its 

bargain. 

 I will demonstrate with a particular example why the 

policy of the OWBPA requires that an employee should be able to 

ratify a defective release. Under the OWBPA, a waiver of ADEA 

rights and claims in a settlement of an action in court must 

comply with certain of the minimum requirements of the OWBPA to 

be knowing and voluntary. 29 U.S.C. § 626(f)(2). One of these 

requirements is that the employee "is advised in writing to 
43

consult with an attorney prior to executing the agreement." 29 

U.S.C. § 626(f)(1)(E). 

 Consider the following situation. An employee 

represented by experienced and competent counsel brings an ADEA 

action. At trial, at the end of the presentation of evidence, 

the parties settle the case on the record in open court with the 

employee waiving his ADEA claims in return for the promise of a 

cash payment. Subsequently, however, the employer reneges on the 

settlement and refuses to make the payment, contending that the 

settlement agreement cannot be enforced because the employee was 

not "advised in writing to consult with an attorney prior to 

executing the agreement." In my view, in these circumstances it 

would be contrary to the intent of Congress in enacting the OWBPA 

if a court refused to enforce the agreement on the employee's 

motion, thus requiring the employee to try the case again. 

Indeed, it would be amazing if a court reached that result, as 

the settlement would have been enforceable if Congress had not 

adopted the OWBPA. Thus, unless the settlement could be 

enforced, the OWBPA would have the exact opposite effect to that 

which Congress intended. The OWBPA would prejudice the employee. 

 Furthermore, a holding that the employee could not enforce the 

settlement would not protect any legitimate interest of the 

employer, as 29 U.S.C. § 626(f)(1)(E) was enacted for the benefit 

of employees. 
44

 The majority dismisses my example by indicating that 

"[w]e certainly have not suggested, nor, as far as we know, is 

there any authority for the proposition that the OWBPA might 

apply to the terms of a settlement agreement forged after the 

taking of evidence in a civil trial." Typescript at 24, n.18. I 

am at a total loss to understand how the majority can make this 

statement as the OWBPA provides that a "waiver in settlement of a 

charge filed with the Equal Employment Opportunity Commission, or 

an action filed in court by the individual or the individual's 

representative, alleging age discrimination . . . may not be 

considered knowing and voluntary unless at a minimum - (A) 

subparagraphs (A) through (E) of paragraph (i) have been met." 

29 U.S.C. § 626(f)(2) (emphasis added). I reiterate that 

subparagraph (E) provides "the individual is advised in writing 

to consult with an attorney prior to executing the agreement." 

While the majority cites legislative history indicating 

congressional concern with preemptive waiver of an employee's 

rights before a dispute has arisen, the OWBPA as written simply 

is not limited to such situations. The majority thus is 

confining the application of the OWBPA in a way Congress did not. 

 I have given a dramatic example demonstrating that the 

majority's holding that an employee cannot ratify a release 

"invalid under the OWBPA" in some cases will frustrate the policy 

of the OWBPA. Typescript at 23-24. Yet in other circumstances, 

as well, employers might want to repudiate a release even though 
45

delivered at an earlier stage of litigation or not given in 

settlement of an action in court. In my view, the employer 

should not be able to repudiate a release because of its own 

failure to comply with the OWBPA. Nevertheless, unless an 

employee can ratify a release which is invalid under the OWBPA, 

the employer will be able to do exactly that. 

 Actually, notwithstanding its holding that a defective 

release cannot be ratified, the majority will not foreclose the 

possibility that an employee may ratify a defective release. The 

majority does, after all, leave open the possibility that in some 

other context, i.e., when it is in the employee's interest to 

enforce a settlement, he or she may be able to do so for it 

indicates that "[t]hat case, should it ever arise, is a matter 

for a different day; we need not decide this case on the basis of 

what might happen in a hypothetical case which might come before 

us at some point in the future." Typescript at 25, n.18. While 

I agree that we cannot decide cases not before us, yet, if the 

majority is correct in holding that "neither ratification nor 

tender back was meant to apply in the ADEA context" then the 

outcome of the "hypothetical case" is preordained. Thus, the 

majority is unwilling to accept the consequences of its own 

holding. In my view, we should consider the consequences of a 

holding with respect to future cases. After all, I thought that 

we should avoid construing a statute to reach an absurd result. 
46

See, e.g., Government of the Virgin Islands v. Berry, 604 F.2d 

221, 225 (3d cir. 1979). 

 Accordingly, the issue in this case should not be 

whether an employee can ratify a release not complying with the 

OWBPA, but what conduct of the employee constitutes a 

ratification of an invalid release? In particular, does the 

employee's withholding of the consideration the employer paid for 

a release ratify the release? Inasmuch as the OWBPA does not 

indicate what conduct constitutes ratification, we must refer to 

the common law for guidance on the point. After all, where else 

can we look? 

 I realize that the majority indicates that the OWBPA 

"supplant[s] the common law." Typescript at 23. But I cannot 

understand how that can be true. The OWBPA provides that an 

individual may not waive any right or claim under the ADEA except 

by a knowing and voluntary waiver and sets forth "minimum" 

requirements for a waiver to be knowing and voluntary. 29 U.S.C. 

§ 626(f)(1). Conspicuously absent from the list are the basic 

prerequisites to an agreement being knowing and voluntary, i.e., 

that the employee waiving the rights have at least a certain 

level of mental competency and that the employee not sign the 

waiver as a consequence of unlawful threats. Nevertheless, while 

the OWBPA does not say so, there can be no doubt that if the 

employer threatens the employee with bodily harm if the employee 
47

does not sign the waiver, the waiver is not "knowing and 

voluntary" and thus is not enforceable. 

 What then is the source of the requirements beyond 

those enumerated in 29 U.S.C. § 626(f)(1) for a waiver to be 

knowing and voluntary? I reiterate that there can be only one 

source, the common law. Accordingly, I do not doubt that in 

determining whether a waiver is knowing and voluntary, a court 

should consider common law principles with respect to such 

traditional factors relating to the validity of contracts as 

competency and duress which are absent from the OWBPA. 

 Further, it is evident that the OWBPA could not have 

supplanted the common law with respect to ADEA releases for still 

another reason: the OWBPA does not even purport to occupy the 

entire area regarding enforceability of ADEA releases. For 

example, under 29 U.S.C. § 626(f)(1)(D), a knowing and voluntary 

waiver must be "in exchange for consideration in addition to 

anything of value to which the individual already is entitled." 

The OWBPA, however, does not address the possibility of the 

failure of consideration, i.e., the employer does not fulfill its 

obligations under the agreement. Is the employee bound by the 

release if the employer does not pay the consideration it 

promised for the release? 

 As far as I am concerned, it is clear that the OWBPA 

did not "supplant" the common law with respect to enforceability 

of ADEA releases. Instead, it has supplemented the common law 
48

and, in this case, as in other cases dealing with a federal 

statute, we must develop a federal common law to accompany the 

statute. See, e.g., Ryan v. Federal Express Corp., 78 F.3d 123, 

126-27 (3d Cir. 1996); United States v. Alcan Aluminum Corp., 964 

F.2d 252, 268 (3d Cir. 1992). Thus, in urging that we apply 

federal common law in this case, I am suggesting nothing unusual. 

 Rather, I am proposing that we use our ordinary methodology in 

applying a statute which does not address a problem which arises 

under it. 

 Where does application of the common law lead us? The 

answer is obvious. The Court of Appeals for the Seventh Circuit 

in Fleming v. United States Postal Serv., 27 F.3d 259, 260-61 

(7th Cir. 1994), cert. denied, 115 S.Ct. 741 (1995), pointed out 

that it is "one of the most elementary principles of contract law 

. . . that a party may not rescind a contract without returning 

to the other party any consideration received under it. . . . 

The principle that a release can be rescinded only upon a tender 

of any consideration received . . . would surely be a component 

of any federal common law of releases." Thus, in Fleming the 

court held that an employee could not avoid a release settling 

Title VII and Rehabilitation Act claims without tendering back 

the consideration for the release. We should apply that settled 
49

principle in this case and affirm the order for summary 

judgment.30

 Our treatment of an analogous issue in our recent 

opinion in McNemar v. The Disney Store, Inc., 91 F.3d 610 (3d 

Cir. 1996), petition for cert. filed Dec. 16, 1996, surely points 

to the result we should reach here. In that case, McNemar, who 

was HIV-positive, brought an action under the Americans with 

Disabilities Act saying that Disney violated the ADA when it 

discharged him. Of course, to recover McNemar had to show that 

he was discharged because of his disability and that with or 

without reasonable accommodations he could perform the essential 

functions of the job. 

 In McNemar, we held that McNemar could not recover 

because he had asserted to the Social Security Administration and 

to two state agencies that he was totally disabled and unable to 

work. Yet the ADA does not provide that a plaintiff, by making 

such assertions, forfeits his or her right to recover under the 

ADA. Nevertheless, through an application of judicial estoppel 

we would not allow McNemar to pursue his ADA claims. Thus, even 

though McNemar might have been able to demonstrate that he could 

 

30. Long argues that the release is invalid as purporting to 

"waive rights or claims that may arise after the date the waiver 

is executed." 29 U.S.C. § 626(f)(1)(C). The majority does not 

need to reach this point and does not do so. To affirm we would 

have to reach this issue and I would do so and reject it. 

However, in view of my dissenting position in this case, I have 

no need to explain my reasoning on this point. 
50

establish a cause of action under the ADA, we held that he had 

deprived himself of that opportunity. Our ultimate conclusion, 

therefore, was that conduct which the ADA never addressed barred 

McNemar's action. While we could have said that we would look 

solely to the ADA for the governing law with respect to McNemar's 

right of recovery, as McNemar urged, and thus rejected Disney's 

judicial estoppel arguments, we did not do so. Similarly, the 

OWBPA simply does not set forth the controlling law in this case 

as it does not address the ratification issue. In fact, Long's 

position is weaker than McNemar's because the ADA far more 

comprehensively regulates actions under it than the OWBPA governs 

releases under the ADEA. 

 While I reach my conclusion as the result of 

independent analysis, I point out that my conclusion accords with 

the weight of appellate authority and not merely because Oberg is 

one case and Wamsley and Blistein are two.31 Rather, it is also 

for the reason that the Court of Appeals for the Seventh Circuit, 

which decided Oberg, later questioned Oberg by diplomatically 

describing its reasoning in that case as "a little obscure." 

Fleming, 27 F.3d at 261. Thus, the court which supplies the only 

 

31. The Court of Appeals for the Fifth Circuit adhered to 

Wamsley in Blakeney v. Lomas Information Sys., Inc., 65 F.3d 482, 

484-85 (5th Cir. 1995), cert. denied, 116 S.Ct. 1042 (1996). In 

the recent case of Raczak v. Ameritech Corp., F.3d , 

1997 WL 5921 (6th Cir. Jan. 9, 1997), the panel was too fractured 

in its approach to render a decision of much precedential value 

on the ratification issue. 
51

appellate support under the OWBPA for the majority's approach has 

cast doubt on its own opinion. The Blistein court made this 

point when it indicated that the Court of Appeals for the Seventh 

Circuit itself, in Fleming, "questioned" Oberg. Blistein, 74 

F.3d at 1466. 

 Hogue v. Southern R. Co., 390 U.S. 516, 88 S.Ct. 1150 

(1968), a case involving a FELA settlement on which the majority 

partially relies, is not controlling. Hogue was based on a 

different statutory scheme and, as a footnote in Hogue makes 

clear, the Supreme Court in part based its opinion on a statute 

making agreements to exempt the employer from liability "void." 

Id. at 518, 88 S.Ct. at 1152. In this case the majority does not 

hold that a release not in conformity with the OWBPA is void. 

Indeed, it does not reach that issue. I, of course, would hold 

that the release is not void. Furthermore, the OWBPA, in its 

terms, simply does not provide that a release not in conformity 

with the OWBPA is "void." Thus, the OWBPA differs critically 

from the FELA statute at issue in Hogue. Of course, as Oberg, 

Wamsley, and Blistein make clear, void contracts cannot be 

ratified. Thus, Hogue is distinguishable. Indeed, if the OWBPA 

provided that releases not conforming with its terms are void, I 

would not be dissenting with respect to the ADEA aspects of the 

case. I, however, will not extend my discussion of Hogue, for 

Wamsley discusses Hogue at length and demonstrates that it is not 
52

controlling in the OWBPA context and I adopt Wamsley's analysis. 

 Wamsley, 11 F.3d at 540-42. 

 The legislative history of the OWBPA is of some help in 

this case but it does not support the majority's result. The 

majority points out that "Congress was aware of the benefit 

retention issue and chose not to include in the OWBPA a proviso 

prohibiting this retention." Typescript at 25 n.19. Yet 

Congress also chose not to include a proviso authorizing an 

individual to challenge a release while retaining the 

consideration for the release. I would think that if Congress 

was aware that parties might seek to apply a common law doctrine 

under a statute and it did not intend that they could do so, it 

would have addressed the point. We indicated in United States v. 

Alcan Aluminum Corp., 964 F.2d at 268, in determining the 

allocation of damages under the Comprehensive Environmental 

Response, Compensation and Liability Act, that "Congress' 

deletion of joint and several liability from the final version of 

the statute signalled its intent to have the courts determine, in 

accordance with traditional common law principles, whether such 

liability is proper under the circumstances." A similar type of 

analysis here demonstrates that, if anything, the legislative 

history supports my conclusion because, as in Alcan Aluminum, 

Congress was aware of a problem which could arise under a statute 

it was enacting and left the issue to the courts to resolve. As 
53

in Alcan Aluminum, how could the courts decide the issue except 

by applying the common law? 

 I will mention briefly some other OWBPA issues. First, 

I recognize that the employee might be unable to return the 

consideration paid by the employer for the defective OWBPA 

release. After all, the employee could have spent the money. 

That circumstance, however, would not be legally germane because 

it is not unique to cases in which a party seeks to rescind a 

release of ADEA claims. Yet, as Fleming explains, to rescind a 

party must return the consideration the party obtained under the 

contract. Second, allowing ratification will not encourage 

employers to obtain invalid releases, for the employer obtaining 

such a release would run the risk that the employee would tender 

back the consideration and then sue under the ADEA while seeking 

to avoid the release. On the other hand, if the employee can 

retain the consideration and sue on the merits if the release is 

invalid, the employee will obtain an undeserved windfall. 

 Third, I note but reject Long's contention that 

allowing ratification of a defective release may result in 

inconsistent adjudications from state to state because the law 

regarding ratification is not uniform in all states. Clearly, a 

federal common law should be consistent throughout the country, 

though I acknowledge that in cases involving ratification courts 

of appeals may reach different conclusions until the Supreme 

Court settles the law. But the possibility of inconsistent 
54

adjudications among the circuits exists throughout the law, so 

there is nothing unique about that possibility in the context of 

ratification of ADEA releases. In fact, with this opinion there 

will be a two/two conflict among the circuits on whether an 

employee ratifies a defective OWBPA release by retaining the 

consideration the employer paid for it. 

 As I indicated at the outset, this appeal involves more 

than an ADEA claim because the majority vacates the summary 

judgment awarded to Sears on Long's ERISA, Pennsylvania Human 

Relation Act, and common law claims. I see no basis for it to do 

so. There is no argument in Long's brief supporting the 

contention that the summary judgment in favor of Sears on those 

claims should be reversed. Rather, Long directs his arguments 

solely to his ADEA claim. If anyone doubts me on this point, I 

suggest that the doubter read Long's brief. In fact, with one 

possible exception, Long never specifically mentions his non-ADEA 

claims after he describes them in the statement of the case on 

the second page of his 48-page brief. This possible exception is 

that Long argues that he had not ratified the release by "undue 

delay" in declaring his position repudiating the release, because 

he filed a PHRA charge of discrimination in July 1993, only four 

months after signing the release. Br. at 43-44. 

 Long, however, does not raise the PHRA issue in 

connection with an argument that the summary judgment on the PHRA 

claim should be reversed. Rather, he makes the point in the 
55

context of an argument that even if common law ratification 

principles are applicable to ADEA releases, he has not ratified 

the release. Br. at 39. Thus, Sears's brief is correct when it 

points out that Long has not "asserted that the District Court 

erred in dismissing Long's non-ADEA claims to which the OWBPA 

does not apply." Br. at 4. 

 In response to Sears's observation, Long argues in his 

reply brief why the summary judgment on the non-ADEA claims 

should be reversed, contending that the release is invalid under 

the OWBPA and is not severable with respect to Long's claims so 

that it is "unenforceable in all respects." Reply br. at 10. 

That frivolous argument, however, comes too late. We explained 

the procedural rule in the Republic of the Philippines v. 

Westinghouse Elec. Corp., 43 F.3d 65, 71 n.5 (3d Cir. 1994), as 

follows: 

 Although the Republic stated in its initial 

briefing that it 'strongly disagrees' with 

the district court's findings 'that 

Philippine government officials engaged in 

retaliation against or harassment of 

witnesses in this case' (Appellant's Br. at 

19), it did not squarely challenge those 

findings as clearly erroneous. See Burns and 

Roe Br. at 14 (noting Republic's failure to 

challenge findings). The Republic did raise 

the issue of clear error in its reply brief 

(Appellant's Reply Br. at 10-16), but that 

was one brief too late: we have often 

instructed that 'appellants are required to 

set forth the issues raised on appeal and to 

present an argument in support of those 

issues in their opening brief.' Kost v. 

Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993). 

 
56

Thus, Long has waived his action insofar as he bases it on ERISA, 

the PHRA, and the common law, as he has not properly challenged 

the district court's ruling that he has ratified the release on 

those claims. Circuit procedural precedent requires that we 

reject Long's challenge to the summary judgment on the non-ADEA 

claims. 

 The majority nevertheless finds that "[b]ecause Long 

approached this case by arguing that the entire release -- 

including non-ADEA claims -- was void we believe that these nonADEA claims were adequately preserved for consideration of 

appeal." Typescript at 37-38. While the majority correctly 

recognizes that it is deciding the case on a basis Long does not 

advance, the fact remains that Long's argument was that the 

release was void under the OWBPA. He makes no argument in his 

opening brief explaining why the release could not be enforced 

with respect to his non-ADEA claims nor does he advance on any 

basis in that brief to reverse the summary judgment on those 

claims. Of course, it does not follow automatically that if a 

release cannot be enforced with respect to ADEA claims, it cannot 

be enforced with respect to non-ADEA claims. Thus, Long had to 

have made that contention to preserve it for appeal. Yet he 

simply did not make that contention until his reply brief when it 

was too late. I reiterate my suggestion that anyone who doubts 

what I say should read Long's brief. I am certain that the 
57

reader will agree that Long presents no argument on any basis for 

reversing the judgment on the non-ADEA claims. 

 While I would not consider the challenge to the release 

on the non-ADEA claims on the merits, I note that even if I 

agreed with the majority's holding on the ADEA claim, I could 

conceive of no way in which the release would be invalid with 

respect to the non-ADEA claims. Is a court to read the OWBPA 

requirements into settlement of ERISA, PHRA, and common law 

claims? The implications that somehow the release in this case 

might not be effective with respect to the non-ADEA claims are so 

far-reaching that I hesitate even to state them. Of course, 

these implications will not be lost on attorneys who represent 

employees who have signed releases of non-ADEA claims in 

connection with employment terminations. What I do state is the 

obvious conclusion that if Long's release is valid as to the nonADEA claims, it would not have to be ratified with respect to 

them to be enforceable. 

 In conclusion, I will sum up my views. I believe that 

we should follow the weight of appellate authority, our wellestablished practice of applying federal common law to statutes 

not addressing issues arising under them, and our recent opinion 

in McNemar dealing with a situation analogous to that here. 

Thus, I would hold that an employee may ratify a release which is 

invalid under the OWBPA, and that Long has ratified the release. 

 I would not entertain the appeal from the summary judgment on 
58

the non-ADEA claims. Consequently, I would affirm the order for 

summary judgment entered by the district court in its entirety 

and I thus respectfully dissent.