# Thomas Long v. Sears Roebuck & Company Sears Merchandise Group. Thomas G. Long > Court of Appeals for the Third Circuit · March 11, 1997 · 105 F.3d 1529 URL: https://www.frixlaw.com/law-library/cases/9489988 ## Case - **Full name:** Thomas LONG v. SEARS ROEBUCK & COMPANY; Sears Merchandise Group. Thomas G. Long, Appellant - **Court:** Court of Appeals for the Third Circuit - **Decided:** March 11, 1997 - **Citations:** 105 F.3d 1529 - **Precedential status:** Published - **Opinion:** Dissent by Greenberg - **Judges:** Mansmann, Greenberg, Hillman, Sloviter, Becker, Stapleton, Cowen, Nygaard, Alito, Roth, Lewis, McKee - **Cited by:** 62 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9489988 ## How later opinions describe it (automated extraction) - holding that the factors established in Cirillo were no longer applicable to alleged waiver of ADEA rights because new legislation (the Older Workers Benefit Protection Act (OWBPA)) requires specific formalities when executing a release of liability under the ADEA - recognizing that although the tenderbaek/ratification doctrines do not apply to releases challenged under the ADEA, they do apply to the state law claims - holding that the Older Workers Benefit Protection Act supersedes Cirillo with respect to the Age Discrimination in Employment Act of 1967 - holding that the Older Workers Benefit Protection Act supersedes Cirillo with respect to release of ADEA claims ## Opinion text 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.” Majority at 1531. The majority reaches this conclusion even though Long executed a broad form of release and waiver of his claims for which Sears 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 ease as well, as Long has not preserved his appeal with respect to these elaims. 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? Majority at 1533. After further discussion, the majority compares Oberg v. Allied Van Lines, Inc., 11 F.3d 679 (7th Cir.1993), cert. denied, 511 U.S. 1108 , 114 S.Ct. 2104 , 128 L.Ed.2d 665 (1994), with Wamsley v. Champlin Ref. and Chems., Inc., 11 F.3d 534 (5th Cir.1993), cert. denied, — U.S. —, 115 S.Ct. 1403 , 131 L.Ed.2d 290 (1995), and Blistein v. St John’s College, 74 F.3d 1459 (4th Cir.1996). In 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. 1 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 Bli-stein, 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 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 *1546 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.” Majority at 1537. 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 1539-40 (citation omitted). I respectfully state that we should not hold that the “doctrine of ratification” cannot be applicable to a release 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. Majority at 1539-40 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 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. 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 OWB-PA might apply to the terms of a settlement agreement forged after the taking of evidence in a civil trial.” Majority at 1539, n. 18.1 am at a total loss to understand how the majority can make this statement as the OWBPA provides that a “waiver in settle *1547 ment 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 subpara-graph (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. Majority at 1539-40. Yet in other circumstances, as well, employers might want to repudiate a release even though 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 reléase 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, ie., 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 “[tjhat 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.” Majority at 1540, 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. 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.” Majority at 1539. 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, ie., 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 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 *1548 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 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, — U.S. —, 115 S.Ct. 741 , 130 L.Ed.2d 642 (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 principle in this case and affirm the order for summary judgment. 2 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 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 *1549 fact, Long’s position is weaker than McNe-mar’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. 3 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 appellate support under the OWB-PA 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 , 20 L.Ed.2d 73 (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 ease 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 térihs, 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, Ho-gue is distinguishable. Indeed, if the OWB-PA 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 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.” Majority at 1540, 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 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 OWB-PA 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 *1550 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 adjudications among the circuits exists throughput 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 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 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 Bums 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). 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 *1551 procedural precedent requires that we reject Lohg’s challenge to the summary judgment on the non-ADEA claims. The majority nevertheless finds that “[b]e-cause Long approached this ease by arguing that the entire release — including non-ADEA claims — was void we believe that these non-ADEA cláims were adequately preserved for consideration of appeal.” Majority at 1545. While the majority correctly recognizes that it is deciding the ease 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 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-ÁDEA 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 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 OWB-PA 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 non-ADEA 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 well-established 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 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. Present: SLOVITER, Chief Judge, BECKER, STAPLETON, MANSMANN, GREENBERG, SCIRICA COWEN, NYGAARD, ALITO, ROTH, LEWIS, and McKEE, Circuit Judges and HILLMAN, District Judge. * . 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. . 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. . 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, — U.S. —, 116 S.Ct. 1042 , 134 L.Ed.2d 189 (1996). In the recent case of Raczak v. Ameritech Corp., 103 F.3d 1257 (6th Cir.1997), the panel was too fractured in its approach to render a decision of much prece-dential value on the ratification issue. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9489988. Public record. Not legal advice.