TABLE OF AUTHORITIES

Cases

American Tobacco Co. v. Patterson,

456 U.S. 63 (1982)................................................................................. 11

Auer v. Robbins,

519 U.S. 452 (1997)................................................................................ 21

Bragdon v. Abbott,

524 U.S. 624 (1998)................................................................................ 16

Chevron USA v. Natural Resources Defense Council,

467 U.S. 837 (1984)................................................................ 3, 16, 20, 22

CompuCredit v. Greenwood,

132 S. Ct. 665 (2012)..................................................................... 8, 23-26

Consumer Products Safety Commission v. GTE Sylvania,

447 U.S. 102 (1980)................................................................................ 11

DeBough v. Shulman,

799 F.3d 1210 (8th Cir. 2015)................................................................. 26

Duncan v. Walker,

533 U.S. 167 (2001)................................................................................ 27

Edelman v. Lynchburg College,

535 U.S. 106 (2002)............................................................................ 2, 22

14 Penn Plaza LLC v. Pyett,

556 U.S. 247 (2009)....................................................................... 8, 23-25

Gilmer v. Interstate/Johnson Lane Corp.,

500 U.S. 20 (1991)......................................................................... 8, 23-25

Gonzales v. Oregon,

546 U.S. 243 (2006)........................................................................... 20-21

Haug v. Bank of America,

317 F.3d 832 (8th Cir. 2003)................................................... 3, 10, 11, 13

Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach,

523 U.S. 26 (1998).................................................................................. 13

Oubre v. Entergy Operations,

522 U.S. 422 (1998).......................................................... 1-2, 3, 11-13, 15

Park ‘N Fly v. Dollar Park & Fly,

469 U.S. 189 (1985)................................................................................ 11

TRW Inc. v. Andrews,

534 U.S. 19 (2001)............................................................................. 26-27

United States v. Clintwood Elkhorn Mining Co.,

553 U.S. 1 (2008).................................................................................... 11

United States v. Mead Corp.,

533 U.S. 218 (2001)................................................................................ 16

Statutes and Regulations

Age Discrimination in Employment Act, as amended,

29 U.S.C. §§621 et seq..................................................................... passim

29 U.S.C. §623(a).................................................................................... 11

29 U.S.C. §626(c)(1)................................................................... 8-9, 23-24

29 U.S.C. §628.............................................................................. 2, 15, 20

Federal Arbitration Act,

9 U.S.C. §§1 et seq........................................................................ 7, 24, 25

9 U.S.C. §10............................................................................................ 24

Older Workers Benefit Protection Act,

Pub. L. 101-433, 104 Stat. 983 (1990)............................................. passim

29 U.S.C. §626(f)(1)(A)-(G)..................................................................... 12

29 U.S.C. §626(f)(1)......................................................................... passim

29 U.S.C. §626(f)(1)(A).................................................................. 9, 17-18

29 U.S.C. §626(f)(1)(H)..................................................................... 12, 17

29 U.S.C. §626(f)(3)......................................................................... passim

29 C.F.R. §1625.22-23............................................................................ 15

29 C.F.R. §1625.22........................................................................... 12, 20

29 C.F.R. §625.22(b)............................................................................... 16

29 C.F.R. §1625.22(b)(4)................................................................... 16-18

29 C.F.R. §1625.22(f).............................................................................. 17

29 C.F.R. §1625.22(h).............................................................. 2, 17, 19-22

Other Authority

Waiver of Rights & Claims Under the ADEA,

63 Fed. Reg. 30624-01 (June 5, 1998)..................................................... 20

Waivers of Rights & Claims: Tender Back of Consideration,

65 Fed. Reg. 7738-01 (Dec. 11, 2000)................................................ 13-21

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

reprinted at 1990 U.S.C.C.A.N. 1509.......................................... 11-15, 27

IN THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

________________________

No. 15-3540

________________________

ELIZABETH McLEOD, et al.,

Plaintiffs-Appellees,

GENERAL MILLS, INC.,

Defendant-Appellant.

________________________________________

On Appeal from the United States District Court

for the District of Minnesota

________________________________________

BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS-APPELLEES

________________________________________________________________

STATEMENT OF INTEREST

The Equal Employment Opportunity Commission (“Commission” or “EEOC”) is the agency charged by Congress with interpreting, administering, and enforcing the Age Discrimination in Employment Act, 29 U.S.C. §§621 et seq. (“ADEA”), as amended by the Older Workers Benefit Protection Act, Pub. L. 101-433, 104 Stat. 983 (1990) (“OWBPA”). In Title II of OWBPA, Congress imposed specific duties on employers who seek from their employees the waiver or release of ADEA claims. Oubre v. Entergy Ops., 522 U.S. 422, 427 (1998) (discussing 29 U.S.C. §626(f)(1)-(4)). Unless a release complies with these “stringent safeguards,” it is “unenforceable” insofar as it purports to release claims under the ADEA. Id. at 427-28.

Pursuant to its authority to “issue such rules and regulations” as it considers “necessary or appropriate” in carrying out the ADEA (29 U.S.C. §628), the Commission issued regulations, with accompanying explanatory information, interpreting the OWBPA. One such regulation specifies that once the validity of a release has been challenged, the employer “shall” prove in “a court of competent jurisdiction” that the release complies with OWBPA’s stringent requirements. See 29 C.F.R. §625.22(h). This regulation tracks the plain language of the statute. 29 U.S.C. §626(f)(3). Both should be enforced as written. See, e.g., Edelman v. Lynchburg College, 535 U.S. 106, 114-19 (2002) (no need to decide how much deference is due EEOC’s reasonable regulation since it takes the position the Court would adopt even without a formal regulation).

In this case, Defendant is arguing that, because the company added an arbitration provision to Release Agreements in which former employees purported to release claims under the ADEA, this Court should compel those persons to arbitrate, on an individual basis, both the validity of the Releases and their underlying ADEA claims. This argument cannot be reconciled with the plain language and purpose of the OWBPA, its legislative history, or the implementing regulations. Moreover, if the Court were to adopt Defendant’s argument, the result could undermine the protections that Congress expressly built into OWBPA. The Commission therefore offers its views to this Court.

STATEMENT OF THE ISSUE

The Older Workers Benefit Protection Act specifies that, to be enforceable, agreements purporting to waive or release claims under the ADEA must comply with certain stringent conditions. It further specifies that, when compliance with those conditions is challenged, the employer “shall” prove “in a court of competent jurisdiction” that the conditions have been satisfied. Can an employer circumvent the requirements of OWBPA and avoid proving “in a court of competent jurisdiction” that a release agreement purporting to release ADEA claims is enforceable by adding an arbitration provision to the agreement?

OWBPA, Title II, 29 U.S.C. §§ 626(f)(1), 626(f)(3)

Oubre v. Entergy Operations, 522 U.S. 422, 426-28 (1998)

Chevron USA v. Natural Res. Def. Council, 467 U.S. 837, 843-44 (1984)

Haug v. Bank of America, 317 F.3d 832, 835 (9th Cir. 2003)

STATEMENT OF THE CASE

1. Nature of the Case and Course of Proceedings

On February 11, 2015, thirteen of Defendant’s former employees brought suit alleging that they were terminated in a mass layoff because of their age and that the Release Agreements they signed upon being terminated did not satisfy the requirements of Title II of the Older Workers Benefit Protection Act (“OWBPA”), 29 U.S.C. §626(f)(1)-(4). District court docket number (“R.”) 1. In the ensuing months, numerous other former employees intervened. See, e.g., R.15, 30-33, 59. Defendant then moved to dismiss or stay the suit and to compel Plaintiffs, as individuals, to arbitrate both their underlying claims and the validity of the Release Agreements. R.5, 7-8; R.20 (amended motion). AARP and the Commission each filed amicus briefs supporting Plaintiffs. R.40 (order granting leave to file).

On October 23, 2015, the district court issued a memorandum opinion and order denying Defendant’s motion to dismiss and compel arbitration. R.54, Addendum (“Add.”)1-22. The court reasoned that the plain language of the applicable statutory provision requires that the employer bear the burden of proving “in a court of competent jurisdiction” — not individual arbitrations — that the Release Agreements comply with the OWBPA’s requirements for a valid release of ADEA claims. Id.

Defendant appealed (R.57), and this Court granted Defendant’s motion to stay proceedings in the court below pending the outcome of the appeal.

2. Statement of Facts

In 2012, General Mills conducted a mass layoff of over 800 employees, many of whom were based in the Twin Cities. R.15 (Amended Complaint ¶¶2-3). According to the Amended Complaint, the layoffs disproportionately affected employees age 40 and over, including the Plaintiffs, all of whom had been performing satisfactorily. Many of these individuals were replaced by younger employees and/or new hires. Id. ¶4.

Employees terminated in the layoff were not automatically entitled to severance benefits, regardless of how long they had worked for the company. Id. ¶79. To obtain severance benefits, employees had to sign “Release Agreements” (id.), an example of which is found at Addendum 23-24.

The Release Agreements state that the individual agrees to release the company and related entities “from all causes of action [and] claims ... including but not limited to any and all claims directly or indirectly relating to [the individual’s] employment, or [] separation from employment. Th[e] release includes any and all claims under federal, state, and local laws prohibiting employment discrimination,...and specifically includes, without limitation, claims arising under” a list of statutes including the ADEA and OWBPA. See, e.g., Add.23 ¶2.

The Agreements then state that the individual agrees “that, in the event there is any dispute or claim arising out of or relating to the above release of claims including without limitation any dispute about the validity or enforceability of the release or the assertion of any claim covered by the release, all such disputes or claims will be resolved exclusively through final and binding arbitration on an individual basis and not in any form of class, collective, or representative proceeding.” Id. ¶4.[1]

Believing that they were selected for termination because of their age, Plaintiffs brought this suit. The Amended Complaint challenges the terminations under disparate treatment and disparate impact theories, and seeks a declaratory judgment that the Release Agreements are unenforceable under OWBPA. Amended Complaint, R.15, ¶¶245-76. The Complaint also contends that the Release Agreements do not comply with OWBPA because they are written in a confusing or misleading way, and employees were not given the information required by the statute and regulations. See, e.g., id. ¶249.

General Mills moved to dismiss the suit and to compel Plaintiffs to arbitrate on an individual basis. Notwithstanding the explicit requirement in OWBPA that the party asserting the validity of a waiver or release of ADEA claims must prove that fact “in a court of competent jurisdiction” (29 U.S.C. §626(f)(3)), the company took the position that Plaintiffs must individually arbitrate even the threshold question of whether the Releases comply with the law.

3. District Court Decision

The district court denied Defendant’s motion. Add.1, R.54. The court noted that the company was arguing that the Federal Arbitration Act, 9 U.S.C. §§1 et seq. (“FAA”), overrides any provision in the ADEA. Because the Release Agreements contain an arbitration provision, Defendant argued, all aspects of Plaintiffs’ suit, including the question of whether the Releases comply with OWBPA, must be sent to arbitration.

The court agreed that the FAA evidences a strong federal policy in favor of enforcing arbitration agreements. If claims are arbitrable under the FAA, they must be referred to arbitration and the case stayed pending the outcome of the arbitration. Add.9-10, 13.

On the other hand, under OWBPA, 29 U.S.C. 626(f)(1), “ADEA claims cannot be waived unless the waiver is ‘knowing and voluntary.’” Add.10. To be considered knowing and voluntary, a waiver of ADEA claims must comply with certain specified requirements. Add.10-11 (listing requirements).

Moreover, the court noted, section 626(f)(3) provides that in any dispute over whether all of the requirements have been met, the employer “‘shall have the burden of proving in a court of competent jurisdiction that the waiver was knowing and voluntary.’” Add.12 (court’s emphasis). And case law uniformly agrees that arbitration provisions are not enforceable where “an express ‘contrary congressional command’ in a different statutory regime might ‘preclude a waiver of the judicial forum.’” Add.13-14 (citing cases). Thus, the court stated, the “dispute at the heart of this case is whether OWBPA contains any contrary congressional command” — such as section 626(f)(3) — “that would preclude enforcement of the arbitration agreements in this case.” Id. at 14.

The court acknowledged the line of cases cited by the company holding that claims under the ADEA and other statutes are subject to arbitration. After carefully analyzing the cases, however, the court found them to be inapplicable. Add.14-17 (discussing, e.g., Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991); 14 Penn Plaza LLC v. Pyett, 556 U.S. 247 (2009); and CompuCredit v. Greenwood, 132 S. Ct. 665 (2012)). In particular, the court noted, CompuCredit “recounted that Gilmer had analyzed a pre-OWBPA provision of the ADEA,” namely section 626(c)(1), that states today that a person suffering ADEA harm “‘may bring a civil action in any court of competent jurisdiction.’” Add.17-18 (citing CompuCredit) (adding that provision previously used the word “could”).

In the court’s view, the “key distinction” between Gilmer or CompuCredit and this case was the fact that those cases address section 626(c)(1), which uses the word “may” or “could,” whereas this case addresses section 626(f)(3), which uses the word “shall.” Finding the distinction “critical,” the court concluded that the “plain language of section 626(f)(3) requires General Mills to defend the validity of plaintiffs’ release agreements in court, not in an arbitral forum.” Add.18. “It is a contrary congressional command precluding arbitration in the narrow circumstances presented in this case: a dispute over the validity of a waiver of substantive claims under OWBPA’s waiver requirements found in section 626(f)(1).” Id. at 18. The court added that Defendant did not cite any contrary interpretation of the provision. Id. at 19 & nn.4-5 (also distinguishing other ADEA provisions). Congress’s word choice, the court concluded, was “deliberate.” Id. at 19-20 (also rejecting argument that “court of competent jurisdiction” could mean “arbitral forum”).

The court reasoned that, while the language in section 626(f)(3) is less explicit than some statutory provisions cited by the company, it is clear, from the context of the OWBPA and its history, that Congress “expect[ed] that courts” would interpret and apply the OWBPA waiver provisions, thereby ensuring that the waivers met OWBPA’s requirements. Add.20-22 & n.6 (citing legislative history, and noting without deciding the “compelling argument” that the release agreements did not meet the understandability requirements of section 626(f)(1)(A)). As for whether to enforce the requirement that arbitrations be conducted on an individual basis, the court noted that, given Congress’s concern that employees terminated in large-scale layoffs have little leverage, “it makes sense that section 626(f)(3) would preclude not just an arbitration agreement but also one that forces individual action.” Add.22 n.6.

STANDARD OF REVIEW

This Court reviews a district court’s interpretation of a statute de novo. Haug v. Bank of Am., 317 F.3d 832, 836 (8th Cir. 2003).

ARGUMENT

The District Court Correctly Concluded that Plaintiffs’ Suit Should Not Be Dismissed and Sent to Arbitration Because the Company Had Not Yet Convinced the Court that the Release Agreements Satisfy the Stringent Requirements of OWBPA.

The district court correctly denied General Mills’ motion to dismiss this suit and compel each Plaintiff to arbitrate, on an individual basis, the enforceability of the Release Agreements these former employees signed upon being terminated in the 2012 mass layoff. As the district court recognized, the plain language and purpose of the statute as well as its legislative history and the Commission’s implementing regulations all confirm that the company must prove to the satisfaction of “a court of competent jurisdiction” — here, the district court — that the Release Agreements comply with OWBPA’s stringent requirements. The decision should therefore be affirmed.

A. The Plain Language and Purpose of OWBPA, Coupled with its Legislative History, Underscore the Correctness of the District Court’s Decision.

The “starting point” for interpreting a statute “is the language employed by Congress” and the “assumption that the ordinary meaning of that language accurately expresses the legislative purpose.” Park ‘N Fly v. Dollar Park & Fly, 469 U.S. 189, 194 (1985) (citing Am. Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982)). “Absent a clearly expressed legislative intention to the contrary, the language must ordinarily be regarded as conclusive.” Consumer Prod. Safety Comm’n v. GTE Sylvania, 447 U.S. 102, 108 (1980); see also U.S. v. Clintwood Elkhorn Mining Co., 553 U.S. 1, 11 (2008) (The “strong presumption that the plain language of the statute expresses congressional intent is rebutted only in rare and exceptional circumstances.”) (citations omitted). Thus, if the statutory language is “unambiguous” and “the intent of the statute is clear, the judicial inquiry ends.” Haug, 317 F.3d at 835. The statute “should be enforced as written.” Id.

The Age Discrimination in Employment Act prohibits employers from terminating or otherwise discriminating against individuals age 40 and older because of age. 29 U.S.C. §623(a). In 1990, Congress amended the statute by passing the Older Workers Benefit Protection Act. OWBPA §201, 104 Stat. 983. As the Supreme Court has pointed out, the purpose of the statute is “clear from its title.” Oubre v. Entergy Ops., 522 U.S. 422, 427 (1998). It was “designed to protect the rights and benefits of older workers . . . via a strict, unqualified statutory stricture on waivers.” Id.; see also S. Rep. No. 263, 101st Cong., 2d Sess. 31 (1990) (“Senate Report”) (stating that “the Committee intends that the requirements of [the statute] be strictly interpreted to protect those individuals covered by the Act”), reprinted at 1990 U.S.C.C.A.N. 1509, 1537.

In keeping with this purpose, the statute provides that an individual “may not waive” an ADEA claim “unless the waiver is knowing and voluntary.” 29 U.S.C. §626(f)(1). As the Supreme Court has pointed out, although OWBPA speaks in terms of “waivers,” its provisions apply equally to “releases.” See Oubre, 522 U.S. at 426-27 (“An employee ‘may not waive’ an ADEA claim unless the waiver or release satisfies the OWBPA’s requirements.”) (emphasis added). The statute then explains that waivers “may not be considered knowing and voluntary” unless, “at a minimum,” they satisfy certain enumerated requirements, such as a requirement that they be written in a manner calculated to be understood by the employee, or by an “average individual eligible to participate.” Id. §626(f)(1)(A)-(G). In addition, employers requesting waivers in connection with an “employment termination program” affecting a group or class of employees — like the layoffs at General Mills — must provide additional information about other individuals selected and not selected for termination. Id. §626(f)(1)(H); see also 29 C.F.R. §1625.22 (implementing regulations). Unless the waiver or release complies with OWBPA’s “stringent safeguards,” it is “unenforceable” insofar as it purports to release ADEA claims. Oubre, 522 U.S. at 427-28.

Finally — of special significance to this case — the statute provides that in any dispute over whether the terms of the waiver comply with the statutory requirements, “the party asserting the validity of [the] waiver” — here, General Mills — “shall have the burden of proving in a court of competent jurisdiction that the waiver was knowing and voluntary pursuant to paragraph (1).” Id. §626(f)(3). As the district court recognized, the language of this provision is “unambiguous” and its “intent” is “clear.” Haug, 317 F.3d at 835. Notably, the word “shall” is mandatory. That is to say, it “normally creates an obligation impervious to judicial discretion.” Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lelach, 523 U.S. 26, 35 (1998). Accordingly, absent a clearly expressed legislative intent to the contrary, the employer, General Mills, must prove to the satisfaction of the district court that the Release Agreements that Plaintiffs signed comply with the informational and other requirements of OWBPA.

In this case, the legislative history is not “to the contrary” but rather fully confirms the plain reading of the provision. Making courts responsible for resolving disputes over the validity of waivers was critical to the overall statutory design. Congress was concerned about protecting employee rights and benefits, particularly in the group termination context. Waivers of Rights & Claims: Tender Back of Consideration (“Tender Back”), 65 Fed. Reg. 7738, 77442 (Dec. 11, 2000). At the Commission’s resource-driven request, Congress had decided to allow waivers unsupervised by the Commission — a major departure from the Fair Labor Standards Act, which required that waivers be supervised by the Secretary of Labor. To fill the void, Congress turned to the courts to supply the necessary oversight. See Senate Report at 32, reprinted at 1990 U.S.C.C.A.N. at 1537.

The legislative history repeatedly stresses that the determination as to whether a waiver or release complies with OWBPA’s requirements must be made by a court. In describing the bill, for example, Congress stated: The bill “amends the ADEA to set forth the threshold requirements for judicial consideration of a waiver of rights under the Act. Courts may not consider whether a ‘knowing and voluntary’ waiver has been executed until the party asserting the waiver as a defense first proves that each of the requirements set forth in the bill has been satisfied.” Senate Report at 6, reprinted at 1990 U.S.C.C.A.N. at 1511 (emphasis added); see also id. at 32, 1990 U.S.C.C.A.N. at 1537 (Committee expects “courts” reviewing knowing and voluntary issue to scrutinize complete circumstances carefully) (emphasis added); id. (“court” must determine compliance “factually”) (emphasis added); id. at 35, 1990 U.S.C.C.A.N. at 1540 (“proof in a “court of competent jurisdiction”) (emphasis added). There is no suggestion anywhere that any other type of decisionmaker would suffice. Because employees would be waiving their ADEA claims, rather than, for example, simply a judicial forum in which to resolve such claims, Congress wanted supervision from a court. Thus, the legislative history reinforces, rather than undermines, the intent manifest in the plain language of section 626(f)(3). This Court should uphold the district court’s correct decision to enforce the statute as it is written, thereby requiring General Mills to prove in court that the Release Agreements comply with the requirements of section 626(f)(1).

B. The Commission’s Regulations Reasonably Interpret the Statute and, Therefore, Are Entitled to Deference.

In its appellate brief, Defendant (along with its amici) takes aim at the regulations and interpretive materials that the Commission promulgated following passage of OWBPA and the decision in Oubre. The company argues that this Court should not give deference to any of the Commission’s “views.” Def.Br.25; see also id. at 25-28. On the contrary, however, both the regulations and interpretive materials represent reasonable interpretations of the statute and, accordingly, should be followed.

After OWBPA went into effect, the Commission exercised its rule-making authority under the ADEA (29 U.S.C. §628), to promulgate regulations, along with supporting information, reinforcing and clarifying key provisions of OWBPA. See 29 C.F.R. §§1625.22-23. These regulations and the accompanying interpretation of them, all of which were published in the Federal Register, should be accorded great weight. See, e.g., Bragdon v. Abbott, 524 U.S. 624, 642 (1998) (observing that whether or not Chevron deference is due, “the well-reasoned views of the agencies implementing the statute constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance”) (citation omitted); Chevron v. Natural Res. Def. Council, 467 U.S. 837, 843-44 (1984) (where Congress has implicitly or explicitly left a gap in a statute for the administering agency to fill, courts should accord “considerable weight” to the agency’s reasonable interpretation); see generally U.S. v. Mead Corp., 533 U.S. 218, 227-28 (2001) (discussing Chevron and other forms of deference).

Several of the regulations and related interpretations bear directly on the issues presented in this case. For example, section 1625.22(b) specifies that a waiver or release agreement must be drafted in plain language geared to the level of understanding of the individual parties to the agreement. This means that the agreement may not “have the effect of misleading, misinforming, or failing to inform participants.” §1625.22(b)(4). Furthermore, any provision that would cause an employee to believe that he or she could not seek a “judicial determination” of the “validity” of the release “misrepresents the rights and obligations of the parties to the agreement” and, therefore, “conflicts” with the underlying OWBPA requirement that valid agreements “must be ‘written in a manner calculated to be understood’ by the employee ‘or by the average individual eligible to participate.’” Tender Back, 65 Fed. Reg. at 77444 (citing 29 U.S.C. §626(f)(1)(A)). Section 1625.22(f) then spells out in detail what information an employer must provide employees in a mass layoff such as this one.

Finally, section 1625.22(h) reaffirms that in any dispute over whether any of the statutory or regulatory requirements, conditions, and circumstances have been satisfied, the employer bears the burden of proving the validity of the waiver or release, and that this showing must be made in a court of competent jurisdiction. As the Commission explained, by “investing ‘court[s] of competent jurisdiction’ with the authority to resolve ‘any dispute that may arise over ... the validity of a waiver,’” Congress “manifested” its “intention to permit an employee who signed an ADEA waiver to sue his or her employer upon the belief that the waiver did not comply with the OWBPA.” Tender Back, 65 Fed. Reg. at 77443-44 (citing §626(f)(3)).

In this case, Plaintiffs contend that the information they were given does not satisfy the requirements of 29 U.S.C. §626(f)(1)(H) and that the releases are misleading, rather than written in a way that is understandable by Plaintiffs and average persons, as required by section 626(f)(1)(A). While the Commission takes no position on the first argument, Plaintiffs do have a viable argument that the releases do not comply with 29 U.S.C. §626(f)(1)(A) and 29 C.F.R. §1625.22(b)(4).

As noted above, the agreements contain arbitration provisions that explicitly inform employees that “in the event there is any dispute or claim arising out of or relating to the above release of claims” including “any dispute about the validity or enforceability of the release or the assertion of any claim covered by the release, all such disputes or claims will be resolved exclusively through a final and binding arbitration on an individual basis and not in any form of [collective] proceeding.” See, e.g., Add.23. On its face, that statement “misrepresents the rights and obligations of the parties” since OWBPA requires that General Mills prove the enforceability of the releases in a “court of competent jurisdiction.” See Tender Back, 65 Fed. Reg. at 77444 (“any provision ... that would cause an employee to believe that he or she could not seek a judicial determination of the validity of the waiver agreement” conflicts with §626(f)(1)(A)); see also 29 C.F.R. §1625.22(b)(4). Although it did not rule on the question, the district court described as “compelling” the argument that the Release Agreements did not meet the understandability requirements of section 626(f)(1)(A). Add.22 & n.6.

General Mills does not take issue with the informational regulations. Like its amici, however, the company does devote a substantial portion of its brief to arguing generally that the Commission’s “position” as well as the OWBPA regulations and the agency’s contemporaneous interpretation of them should not be accorded any deference.[2] See generally Def.Br.at 25-28. Although its brief is not completely clear, the company appears to make two somewhat related arguments. First, the company asserts generally, without citation to the Commission’s brief below, that “EEOC’s position opposing arbitration is entitled to no deference” because a “convenient litigating position” — which is “all that EEOC’s opposition to arbitration is” — deserves no deference. See Def.Br.26-27. That misunderstands the Commission’s arguments. In fact, in neither this Court nor the court below has the Commission taken a “position” broadly condemning arbitration nor argued that any such “position” would warrant deference. The Commission’s arguments have always been directed expressly at the plain language of section 626(f)(3).

Second, General Mills focuses on 29 C.F.R. §1625.22(h), the regulation addressing the enforcement scheme in section 626(f)(3) of the statute. That one regulation, the company argues, should not be accorded any deference. Def.Br.26-27.

As Defendant acknowledges, the Commission had authority to issue regulations interpreting and implementing OWBPA and, specifically, sections 626(f)(1)-(4). Id. at 26 (citing 29 U.S.C. §628). The bulk of the regulations, including section 1625.22(h), were issued in 1998. For those regulations, the Commission used a process known as “negotiated rule-making.” In that process, a committee that included several prominent management-side attorneys— as well as a representative from the Equal Employment Advisory Council, one of Defendant’s amici here — operating by “consensus,” produced draft regulations that became 29 C.F.R. §1625.22. See Waiver of Rights & Claims Under the ADEA, 63 Fed. Reg. 30624, 30625 (June 5, 1998) (describing process and listing participants); see also Tender-Back, 65 Fed. Reg. at 77438-39 (discussing previous rule-making). The interpretations that the company challenges were issued with or shortly after publication of those regulations in the Federal Register.

For the most part, the regulations and related interpretative materials fill gaps in the statute. Defendant has not denied that they represent a reasonable interpretation of the statute and, therefore, are entitled to considerable deference. See, e.g., Chevron, 533 U.S. at 842-45 (according considerable deference to reasonable regulations filling gaps in a statute where promulgated by an agency with authority to issue such rules); accord Gonzales v. Oregon, 546 U.S. 543, 255-56 (2006); see also Auer v. Robbins, 519 U.S. 452, 461-63 (1997) (agency’s interpretation of its own regulations is ordinarily entitled to deference).

Citing Gonzales, however, the company argues that 29 C.F.R. §1625.22(h), the regulation addressing section 626(f)(3), is entitled to no deference because it only “restates” the statutory language. But the circumstances in Gonzales were markedly different from the circumstances in this case. Unlike the Commission, the Attorney General there was proposing to re-interpret a regulation that simply restated the statutory language. Importantly, the new interpretation would have changed the settled understanding of the regulation, fell outside his statutory authority, and was not adopted through notice-and-comment rule-making, much less negotiated rule-making. 546 U.S. at 255-56.

In any event, Defendant’s argument goes nowhere. Section 1625.22(h) restates the statute because that particular provision of the statute is crystal clear; there are no gaps. Like the regulation, the statute specifies that when a waiver or release is challenged, the employer “shall” prove in and only in a “court of competent jurisdiction” that the document satisfies the “stringent” requirements of OWBPA. See also Tender Back, 65 Fed. Reg. at 77443 (“Congress allowed employers to offer OWBPA-compliant waivers without EEOC supervision but at the same time vested in ‘a court of competent jurisdiction’ the authority to resolve ‘any dispute that may arise’ over the validity of the waiver”). Thus, while the Commission believes that all of its OWBPA regulations are entitled to deference, if this Court agreed with General Mills that an exception should be made for section 1625.22(h), the Court should simply enforce the statute as it is written. Cf. Edelman, 535 U.S. at 114 (no point in resolving what amount or kind of deference to accord an EEOC rule because the Court would adopt the same position if interpreting statute “from scratch”). Because “Congress has directly spoken to the precise question at issue,” this Court, like the district court and the Commission, “must give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842-43.

C. None of Defendant’s Other Arguments Justify Reversal.

In addition to deference, General Mills makes three other main arguments. All were properly disposed of by the district court, and this Court should do the same.

First, General Mills argues that consistent with the strong federal policy favoring arbitration, the district court should have granted its motion to compel; individual arbitrators could then determine whether each Plaintiff’s Release Agreement complied with OWBPA. The company notes that the ADEA contains “no express congressional command precluding arbitration of ADEA claims.” Def.Br. at 13. Moreover, courts of appeal as well as the Supreme Court have repeatedly and uniformly held that the ADEA and other statutes permit arbitration of substantive discrimination claims. Def.Br.15-16, 24-25 (citing cases).

As the district court recognized, however, the cases on which the company relies are inapposite. This case does not involve a pre-dispute arbitration agreement or raise the question of whether such agreements are enforceable in suits under the ADEA or elsewhere — the issue in those cases. Nor does it raise the question, decided by 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 258-29 (2009), whether the waiver of a judicial forum for ADEA claims in a collective bargaining agreement must be knowing and voluntary. Rather, the issue here is simply whether Congress meant what it said when it specified that when the enforceability of a waiver or release of ADEA claims is challenged, an employer like General Mills must prove in a “court of competent jurisdiction” that an agreement waiving ADEA claims complies with OWBPA. None of the cited cases address that question; indeed, it appears to be an issue of first impression. The only pertinent authority — the plain language and purpose of the provision as well as the legislative history — all confirm that courts, not arbitrators, must decide that issue.

Second, the company argues that, notwithstanding its plain language, section 626(f)(3) really does allow arbitration of the validity of the Releases. Def.Br.17-23. Returning to the earlier point, Defendant notes that section 626(c)(1), the provision discussed in Gilmer and CompuCredit, and section 626(f)(3), the provision at issue here, both use the term “court of competent jurisdiction.” Gilmer, and more recently CompuCredit, both conclude that section 626(c)(1) allows arbitration. So, the argument goes, section 626(f)(3) likewise should be read to allow arbitration.

Aside from that one phrase in common, however, the two provisions differ materially. Section 626(c)(1) states that a person aggrieved by age discrimination “may” bring a civil action in “any court of competent jurisdiction.” 29 U.S.C. §626(c)(1). Other statutes listed in CompuCredit also use the word “may.” See 132 S. Ct. at 670-71 (listing statutes). In contrast, as the district court recognized, section 626(f)(3) uses the mandatory word “shall”: the employer “shall” prove in a “court of competent jurisdiction” that the release complies with OWBPA. The statute itself thus allows employers no other options.[3]

Moreover, and importantly, Gilmer, Penn Plaza, and CompuCredit all recognize that arbitration agreements may not be enforced if “Congress itself has evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue.” Any such intention “will be deducible from the text or legislative history.” Gilmer, 500 U.S. at 26; Penn Plaza, 556 U.S. at 258; see also CompuCredit, 132 S. Ct. at 669 (FAA mandate “overridden by a contrary congressional command”). The Supreme Court found no such intention in the statutory provisions examined in those cases. As the district court here recognized, however, that is not true in this case.

As noted above, both the text and the legislative history of section 626(f)(3) “evince” a clear intent to “preclude a waiver of judicial remedies,” at least for the limited purpose of determining whether waivers or releases of ADEA claims satisfy OWBPA. The employer “shall” prove to the satisfaction of a “court” that the waiver or release complies with OWBPA. 29 U.S.C. 626(f)(3). By choosing the word “shall,” Congress made clear that judicial determination is the only option available.

For similar reasons, Defendant’s argument that the words “court” and “action” are “utterly commonplace” and “cannot do the heavy lifting” of expressing a congressional command precluding arbitration is beside the point. Def.Br.22. The key word is “shall,” not “action” or even “court.” Defendant argues that in later statutes Congress used the term “pre-dispute arbitration agreement” when it intended to preclude arbitration. Def.Br.19 & n.4; see also CompuCredit, 132 S. Ct. at 672 (listing statutes). As the district court correctly concluded, however, when section 626(f)(3) is viewed in the context of the OWBPA and its history, “it is clear that Congress wanted courts to interpret and apply the OWBPA waiver provisions at section 626(f)(1)” to ensure that waivers of ADEA claims meet those requirements. Add.20-21.

General Mills then argues that the provision, which it characterizes as “peripheral” and “minor,” really has two parts: the burden of proof and everything else. “Shall” applies only to the allocation of the burden of proof: the employer “shall” have the burden. See, e.g., Def.Br.17-19. The rest of the provision is mere surplusage. See id. (provision “addresses only the burden of proof — ... for an affirmative defense — which is all section 626(f)(3) does”).

The company cites no authority, nor is there any, for this creative parsing of the provision. It should be rejected. Had Congress intended only to allocate the burden of proof, it could have omitted the phrase “court of competent jurisdiction” altogether. A statute should not be interpreted in a way that denies “operative effect” to each word in the provision, which is exactly what the company’s interpretation would do here. DeBough v. Shulman, 799 F.3d 1210, 1214 (8th Cir. 2015) (“It is a settled rule of statutory construction that [courts] must, if possible, construe a statute to give every word some operative effect.”) (citation omitted); see also TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (“It is a cardinal principle of statutory construction” that “a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.”) (citations omitted); Duncan v. Walker, 533 U.S. 167, 174 (2001) (given its “duty is to give effect, if possible, to every clause and word of a statute,” court is “reluctant to treat statutory terms as surplusage”) (citations omitted). Furthermore, section 626(f)(3) is far from “peripheral” or “minor.” As the enforcement provision for the statute, it clearly reflects Congress’s intent to have courts decide whether a challenged waiver or release complies with OWBPA’s stringent safeguards. See, e.g., Senate Report at 6, 32, 35, reprinted at 1990 U.S.C.C.A.N. at 1511, 1537, 1540.

In short, section 626(f)(3) expressly overrides any presumption in favor of arbitration. Consistent with the purpose of protecting older workers’ benefits, Congress directed that the validity of a waiver or release of ADEA claims must be proved in a court of competent jurisdiction. The company’s attempt to shift that determination to an arbitral forum cannot be reconciled with the plain terms of the statute.

Third, General Mills argues that it would make no sense to “divorce” treatment of releases and claims. According to the company, Plaintiffs’ underlying ADEA claims must be arbitrated (an interpretation of the arbitration provision that Plaintiffs dispute). The company argues that it would be “inefficient” and “illogical” to force the employer to litigate the validity of the release agreements in court when, if they were found invalid, each individual Plaintiff would then have to arbitrate the merits of the underlying ADEA discrimination claims. Thus, the company concludes, to find that Congress intended such an “illogical” scheme “would require an exceptionally clear statement,” and, in General Mills’ opinion, section 626(f) contains no such statement. Def.Br.23-24.

To the contrary, adhering to the enforcement scheme that Congress devised makes perfect sense. Because all of the Release Agreements contain substantially the same language, the court below would determine the enforceability of all 35+ Plaintiffs’ Releases once and for all in a single proceeding. And should the court find that the releases comply with OWBPA’s requirements, the age claims of each of those 35+ Plaintiffs would go away because the claims, however meritorious, would have been validly released. Whether Plaintiffs’ age claims must be arbitrated on an individual basis if the releases are found unenforceable is a disputed question of contract interpretation that the district court did not resolve.

In contrast, Defendant’s proposed arrangement would require that each of the 35+ Plaintiffs participate in individual arbitrations where 35+ different arbitrators would assess the validity of the same release language over and over again. Because stare decisis and collateral estoppel would not apply, some arbitrators might find the release invalid while other arbitrators found it valid. As noted above, the company points to nothing in the statute or legislative history suggesting, notwithstanding the clear language of section 626(f)(3), that Congress meant to sanction such a wasteful enforcement scheme.

Nevertheless, the company asserts that the district court’s decision to reject this arrangement “can be explained only by the type of hostility to arbitration that has repeatedly led to reversals in the Supreme Court and this Court.” Def.Br.24. To the contrary, a likelier explanation is apparent from the court’s carefully reasoned decision. The court simply determined that the statutory language is unambiguous and, so, enforced the statute as it is written.

Finally, Defendant’s amici make a floodgates argument: if this Court enforces the statute as Congress intended — to require General Mills to prove to the satisfaction of the court that the Release Agreements comply with OWBPA’s requirements — ADEA plaintiffs will have “every incentive to assert an OWBPA violation in every case so as to get around a pre-existing arbitration agreement and into court.” This, they assert, would mean that “employers and employees could never enforce pre-dispute agreements to arbitrate.” AmiciBr.25-26.

Amici’s stated concerns are unfounded. As noted above, this case does not involve a pre-dispute arbitration agreement, so a decision either way should not impact the overall enforceability of such agreements. And if, as amici posit, the hypothetical challenged releases are OWBPA-compliant, a determination to that effect by a court of competent jurisdiction would end the case. The hypothetical ADEA plaintiffs would be found to have released any ADEA claims they might otherwise have had, so there will be no proceedings on the merits of such claims in any forum.

Further, rather than foreshadowing the end to arbitration as we know it, the issue here is narrow. As the district court recognized, OWBPA provides that in one particular type of case — a challenge to the enforceability of a waiver or release of ADEA claims — Congress has directed that the employer may not choose to have the question decided in a non-judicial forum, including arbitration. Rather, the employer must — “shall” — prove in a “court of competent jurisdiction” that the documents comply with the stringent safeguards in section 626(f)(1). That is precisely what the court below decided. The decision should be affirmed.

CONCLUSION

For the foregoing reasons, the ruling of the district court should be affirmed.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

MARGO PAVE

Assistant General Counsel

s/ Barbara L. Sloan

BARBARA L. SLOAN

Attorney

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION

Office of General Counsel

131 M Street N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4721

FAX: (202) 663-7090

barbara.sloan@eeoc.gov

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 6647 words from the Statement of Interest through the Conclusion, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(ii).

This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2007 with Times New Roman 14-point font.

s/ Barbara L. Sloan

BARBARA L. SLOAN

Attorney for Equal Employment

Opportunity Commission

Dated: February 16, 2016

[1] General Mills has not contended that employees had previously signed pre-dispute arbitration agreements as a condition of employment. Thus, the question of whether such agreements would be enforceable is not presented in this case.

[2] It is unclear how familiar amici are with the Commission’s brief below. Contrary to amici’s brief (see AmiciBr.23 & passim), for example, the Commission did not argue that “OWBPA confers an unwaivable right to bring claims in court” or that pre-dispute arbitration agreements are unenforceable under the ADEA. Amici cite nothing suggesting that EEOC’s brief made those arguments; those issues are not even presented in the case. Rather, as in this Court, the Commission argued below that the statutory language and purpose of section 626(f)(3) are clear: in specifying that the employer “shall” prove “in a court of competent jurisdiction” that a specific release satisfies OWBPA requirements, Congress meant exactly what it said. Amici simply ignore the mandatory “shall.”

[3] Defendant also argues that arbitration satisfies the statutory requirement of enforcement by a “court” because FAA section 10(a), 9 U.S.C §10(a), permits judicial review of an arbitrator’s decision. Not only is this novel argument unsupported by the statutory language but it completely ignores the narrow issues a reviewing court could consider, the highly deferential standard of review a court applies to any arbitration decision. Furthermore, since the arbitration provision in the agreement does not require a written decision with reasons, there might well be nothing to review. Defendant points to nothing suggesting Congress would have agreed the mere possibility of such review would satisfy the employer’s duty to prove compliance with the statute in a court of competent jurisdiction.