Petition for Writ of Certiorari — Gregory Abelar, et al., Petitioners v. International Business Machines Corporation

Supreme Court briefJan 22, 2024

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No. 23In the

Supreme Court of the United States

GREGORY ABELAR et al.,

Petitioners,

INTERNATIONAL BUSINESS MACHINES

CORPORATION,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Second Circuit

PETITION FOR A WRIT OF CERTIORARI

Shannon Liss-Riordan

Counsel of Record

Lichten & Liss-Riordan, P.C.

727 Boylston Street,

Suite 2000

Boston, MA 02116

(617) 994-5800

sliss@llrlaw.com

Counsel for Petitioners

January 22, 2024

326203

(800) 274-3321 • (800) 359-6859

QUESTION PRESENTED

The question presented in this Petition is whether an

arbitration agreement can be used to bar an employee

from pursuing a claim under the Age Discrimination in

Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq., when

that employee would have been able to pursue that claim

in court.

The ADEA includes a comprehensive timing scheme

setting forth the time individuals have to file a charge

of discrimination. 42 U.S.C. § 2000e-5(e)(1); 29 U.S.C.

§§ 626(d), 633(b). Under that scheme, individuals have

either 180 or 300 days to file a charge first with the Equal

Employment Opportunity Commission (“EEOC”), after

which they may proceed in court. However, if similar

charges of discrimination have already been filed with

the EEOC, an individual need not meet this time limit but

instead can file a claim in court much later (even years

later, after learning that he or she may have been the victim

of discrimination, based upon an EEOC investigation or

claims brought forward by other employees).

The Second Circuit below erroneously held that

an arbitration agreement can undermine this scheme,

thus preventing employees from pursuing claims of age

discrimination that would have been timely in court.

In so holding, the Second Circuit diverged from the

Sixth Circuit, which has held that the comprehensive

timing scheme for asserting an ADEA claim before the

EEOC and in court is a substantive right that cannot be

waived by contract. See Thompson v. Fresh Products,

LLC, 985 F.3d 509, 521 (6th Cir. 2021). In contrast,

the Second Circuit held that this timing scheme is a

procedural right that can be waived. The Second Circuit’s

conclusion violates this Court’s pronouncement in Gilmer

v. Interstate/Johnson Lane Corp., 500 U.S. 20, 28 (1991) ,

that arbitration is an acceptable alternative to court action

so long as an employee can pursue claims in arbitration

that could have been pursued in court.

Petitioners thus ask the Court to correct the Second

Circuit’s erroneous conclusion that an arbitration

agreement can take away a right to pursue an age

discrimination claim that could have been pursued in court

and thereby resolve this significant circuit split.

iii

LIST OF PARTIES TO THE PROCEEDINGS

Petitioners Gregory Abelar, William Abt, Brian

Brown, Brian Burgoyne, Mark Carlton, William Chastka,

Phillip Corbett, Denise Cote, Michael Davis, Mario

DiFelice, Joseph Duffin, Brian Flannery, Fred Gianniny,

Om Goeckermann, Mark Guerinot, Deborah Kamienski,

Douglas Lee, Colleen Leigh, Stephen Mandel, Mark

McHugh, Sandy Plotzker, Alexander Saldarriaga, Richard

Ulnick, Mark Vornhagen, James Warren, Dean Wilson,

Patricia Lodi, Deborah Tavenner, and William Chandler

were the plaintiffs in the district court cases at issue in

this Petition and the appellants in the court of appeals.

Respondent International Business Machines Corp.

(“IBM”) was the defendants in the district court cases

and the appellees in the court of appeals.

RELATED PROCEEDINGS

This case arises out of the following proceedings1:

• In Re: IBM Arbitration Agreement Litig., Civ.

Act. No. 1:21-cv-06296-JMF (S.D.N.Y.) (judgment

entered July 14, 2022)2

• Lodi v. International Business Machines Corp.,

Civ. Act. No. 1:21-cv- 06336 -JGK (S.D.N.Y.)

(judgment entered July 11, 2022)

• Tavenner v. International Business Machines

Corp., Civ. Act. No. 1:21-cv-06345-KMK (S.D.N.Y.)

(judgment entered Sept. 23, 2022)

1. The four appeals at issue in this Petition for Writ of

Certiorari are In Re: IBM Arbitration Agreement Litig., No. 22-1728

(2d Cir.) (a consolidation of twenty-six cases), Lodi v. International

Business Machines Corp., No. 22-1737 (2d Cir.) , Tavenner v.

International Business Machines Corp., No. 22-2318 (2d Cir.), and

Chandler v. International Business Machines Corp., No. 22-1733

(2d Cir.). Because these appeals raised closely related issues, the

Second Circuit opted to hear argument in the appeals in tandem. As

such, Petitioners submit a single Petition pursuant to S. Ct. R. 12.4.

2. Twenty-six (26) cases before the United States District

Court for the Southern District of New York were consolidated into

In Re: IBM Arbitration Agreement Litig., including the following

case numbers: 21-cv-6296; 21-cv-6297; 21-cv-6308; 21-cv-6310; 21cv-6312; 21-cv-6314; 21-cv-6320; 21-cv-6322; 21-cv-6323; 21-cv-6325;

21-cv-6326; 21-cv-6331; 21-cv-6332; 21-cv-6337; 21-cv-6340; 21-cv6341; 21-cv-6344; 21-cv-6349; 21-cv-6351; 21-cv-6353; 21-cv-6355;

21-cv-6375; 21-cv-6377; 21-cv-6380; and 21-cv-6384.

• Chandler v. International Business Machines

Corp., Civ. Act. No. 1:21-cv-06319-JGK (S.D.N.Y.)

(judgment entered July 6, 2022)

• In Re: IBM Arbitration Agreement Litigation, No.

22-1728 (2d Cir.) (judgment entered Aug. 4, 2023,

petition for reh’g en banc denied Sept. 22, 2023)

• Lodi v. International Business Machines Corp.,

No. 22-1737 (2d Cir.) (judgment entered Aug. 4,

2023, petition for reh’g en banc denied Sept. 22,

2023)

• Tavenner v. International Business Machines

Corp., No. 22-2318 (2d Cir.) (judgment entered Aug.

4, 2023, petition for reh’g en banc denied Sept. 22,

2023)

• Chandler v. International Business Machines

Corp., No. 22-1733 (2d Cir.) (judgment entered Aug.

4, 2023, petition for reh’g en banc denied Oct. 12,

2023)

There are no other related proceedings within the

meaning of this Court’s Rule 14.1(b)(iii).

TABLE OF CONTENTS

Page

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . i

LIST OF PARTIES TO THE PROCEEDINGS . . . . . iii

RELATED PROCEEDINGS . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . vi

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . viii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . xi

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

STATUTORY PROVISION INVOLVED . . . . . . . . . . . 7

STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Statutory Background . . . . . . . . . . . . . . . . . . . . . . 7

A. The ADEA’s Limitations Period . . . . . . . . . 7

B. The Older Workers’ Benefits

Protection Act . . . . . . . . . . . . . . . . . . . . . . . . 10

II. Factual and Procedural Background . . . . . . . . 13

vii

Table of Contents

Page

A. Petitioners’ Arbitration Agreements . . . . . . 3

B. Petitioners’ Efforts to Arbitrate their

ADEA Claims . . . . . . . . . . . . . . . . . . . . . . . . 16

C. Petitioners’ Efforts to Challenge the

Timeliness Provision in Court . . . . . . . . . . 17

REASONS FOR GRANTING THE PETITION . . . . 19

This Case Presents an Important Issue

Which is Likely to Recur and Over Which

There is a Clear Circuit Split . . . . . . . . . . . . . . . 21

II. The Second Circuit Exceeded the Bounds of the

FAA in Holding that the Piggybacking Rule

Does Not Apply in Arbitration . . . . . . . . . . . . . . 25

III. The Second Circuit Wrongly Held that the

Piggybacking Doctrine Does Not Operate

to Extend a Limitations Period . . . . . . . . . . . . . 27

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

viii

TABLE OF APPENDICES

Page

APPENDIX A — IN RE IBM OPINION OF THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT, DATED

AUGUST 4, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

APPENDIX B — LODI OPINION OF THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT, FILED

AUGUST 4, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23a

APPENDIX C — TAVENNER OPINION OF THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT, FILED

AUGUST 4, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25a

APPENDIX D — CHANDLER OPINION OF

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT, FILED

AUGUST 4, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27a

A PPENDI X E — IN RE IBM OPINION

AND ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE SOUTHERN

DI S T R IC T OF N E W YOR K , F I L ED

JULY 14, 2022 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29a

A PPENDIX F — LODI MEMORA NDUM

OPINION AND ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF NEW YORK,

FILED JULY 11, 2022 . . . . . . . . . . . . . . . . . . . . . . . 64a

Table of Appendices

Page

A PPENDI X G — TAV ENNER OPINION

AND ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE SOUTHERN

DI S T R IC T OF N E W YOR K , F I L ED

SEPTEMBER 23, 2022 . . . . . . . . . . . . . . . . . . . . . . 79a

A PPENDIX H — CHA NDLER OPINION

OF THE UNITED STATES DISTRICT

COURT FOR THE SOU THERN

DI S T R IC T OF N E W YOR K , F I L ED

JULY 6, 2022 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104a

A PPEN DI X I — IN RE IBM DENI A L

OF R EH E A R I NG OF T H E U N I T ED

STAT ES COU RT OF A PPEA LS FOR

T H E S E C ON D C I R C U I T, F I L E D

SEPTEMBER 22, 2023 . . . . . . . . . . . . . . . . . . . . . 126a

A P P E N DI X J — L O DI D E N I A L O F

REHEA RING OF THE U NIT ED

STAT ES COU RT OF A PPEA LS FOR

T H E S E C ON D C I R C U I T, DA T E D

SEPTEMBER 22, 2023 . . . . . . . . . . . . . . . . . . . . . 128a

A PPENDI X K — TAV ENNER DENI A L

OF R EH E A R I NG OF T H E U N I T ED

STAT ES COU RT OF A PPEA LS FOR

T H E S E C ON D C I R C U I T, DA T E D

SEPTEMBER 22, 2023 . . . . . . . . . . . . . . . . . . . . . 130a

Table of Appendices

Page

A PPENDI X L — CHA NDLER DENI A L

OF R EH E A R I NG OF T H E U N I T ED

STAT ES COU RT OF A PPEA LS FOR

T H E S E C ON D C I R C U I T, DA T E D

OCTOBER 12, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . 132a

APPENDIX M — RELEVANT STATUTE . . . . . . 134a

TABLE OF CITED AUTHORITIES

Page

Cases

14 Penn Plaza LLC v. Pyett,

556 U.S. 247 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Allen v. Sears Roebuck and Co.,

2010 WL 259069 (E.D. Mich. Jan. 20, 2010) . . . . . . . 28

Anson v. Univ. of Tex. Health Sci. Ctr. at, Hous.,

962 F.2d 539 (5th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . 9

Bogacz v. MTD Products, Inc.,

694 F. Supp. 2d 400 (W.D. Pa. 2010) . . . . . . . . . . . . . 12

Bragdon v. Abbott,

524 U.S. 624 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Butcher v. Gerber Prods. Co.,

8 F. Supp. 2d 307 (S.D.N.Y. 1998) . . . . . . . . . . . . . . . 11

Calloway v. Partners Nat. Health Plans,

986 F.2d 446 (11th Cir. 1993) . . . . . . . . . . . . . . . . . . . . 9

Catlin v. Wal-Mart Stores, Inc.,

123 F. Supp. 3d 1123 (D. Minn. 2015) . . . . . . . . . . . . 28

Chandler v.

International Business Machines Corp.,

2022 WL 2473340 (S.D.N.Y. July 6, 2022) 6, 13, 18, 19

xii

Cited Authorities

Page

Chandler v.

International Business Machines Corp.,

2023 WL 4987407 (2d Cir. Aug. 4, 2023) . . . . . . . . . . 6

Cronas v. Willis Group Holdings Ltd.,

2007 WL 2739769 (S.D.N.Y. Sept. 17, 2008) . . . . . . . . 8

EEOC v. Comm. Office Prods. Co.,

486 U.S. 107 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Epic Systems Corp. v. Lewis,

138 S. Ct. 1612 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . 19

Estle v. International Business Machines Corp.,

23 F.4th 210 (2d Cir. 2022) . . . . . . . . . . . . . . . . . . . 4, 19

Fed. Exp. Corp. v. Holowecki,

552 U.S. 389 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Gilmer v. Interstate/Johnson Lane Corp.,

500 U.S. 20 (1991) . . . . . . . . . . . . . . . . . . . 1, 2, 3, 28, 29

Grayson v. K-Mart Corp.,

79 F.3d 1086 (11th Cir. 1996) . . . . . . . . . . . . . . . . . . 8, 9

Greer v. Sterling Jewelers, Inc.,

2018 WL 3388086 (E.D. Cal. July 10, 2018) . . . . . . . 20

Holowecki v. Federal Exp. Corp.,

440 F.3d 558 (2d Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . 7

xiii

Cited Authorities

Page

Holowecki v. Federal Express Corp.,

2002 WL 31260266 (S.D.N.Y. Oct. 9, 2002) . . . . . . . 28

Howlett v. Holiday Inns, Inc.,

49 F.3d 189 (6th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . 9

In Re: IBM Arbitration Agreement Litig.,

2022 WL 2752618 (S.D.N.Y. July 14, 2022) . . . . . . . . 6

In Re: IBM Arbitration Agreement Litig.,

76 F.4th 74 (2d Cir. 2023) . . . . . . . . . . . . . . . . . . . . . . . 5

In the Matter of Arbitration Between:

[Claimant], Claimant, and [Respondent]

(Services, Not Elsewhere Classified),

2017 WL 6943558 (Arb. Linda F. Close, AAA

Dec. 15, 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

In the Matter of Arbitration Between:

[Claimant], Claimant, v. [Respondent] (Food

and Kindred Products),

2018 WL 1933357 (Arb. Frank Abramson

Feb. 27, 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Jones v. American Postal Workers Union,

192 F.3d 417 (4th Cir. 1999) . . . . . . . . . . . . . . . . . . . . 10

Kruchowski v. Weyerhaeuser Co.,

446 F.3d 1090 (10th Cir. 2006) . . . . . . . . . . . . . . . . . . 11

xiv

Cited Authorities

Page

Leal v. Wal-Mart Stores, Inc.,

2016 WL 2610020 (E.D. La. May 6, 2016) . . . . . . . . 27

Lodi v. International Business Machines Corp.,

2022 WL 2669199 (S.D.N.Y. July 11, 2022) . . . . . . . . 6

Lodi v. International Business Machines Corp.,

2023 WL 4983125 (2d Cir. Aug. 4,

2023) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 13, 18, 19, 21

Loksen v. Columbia Univ.,

2013 WL 5549780 (S.D.N.Y. Oct. 14, 2013) . . . . . . . . 11

Marie v. Allied Home Mortgage,

402 F.3d 1 (1st Cir. 2005) . . . . . . . . . . . . . . . . . . . 26, 27

Morgan v. Sundance, Inc.,

142 S. Ct. 1708 (2022) . . . . . . . . . . . . . . . 3, 5, 20, 22, 26

Newton v. American Debt Services, Inc.,

854 F.Supp.2d 712 (N.D. Cal. 2012) . . . . . . . . . . . . . .20

Oubre v. Entergy Operations, Inc.,

522 U.S. 422 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 4

Ragone v. Atlantic Video at Manhattan Center,

595 F.3d 115 (2d Cir. 2010) . . . . . . . . . . . . . . . . . . . 2, 20

Rupert v. PPG Industries, Inc.,

2009 WL 596014 (W.D. Pa. Feb. 26, 2009) . . . . . . . . 12

Cited Authorities

Page

Rusis v.

International Business Machines Corp.,

529 F. Supp. 3d 178 (S.D.N.Y. 2021) . . . . . . . . . . . 16, 17

Shannon v. Hess Oil Virgin Islands Corp.,

100 F.R.D. 327 (D.V.I. 1983) . . . . . . . . . . . . . . . . . . . . 28

Smith v.

International Business Machines Corp.,

2023 WL 3244583 (11th Cir. May 4, 2023) . . . . . . . . 25

Stolt-Nielsen v.

AnimalFeeds International Corp.,

559 U.S. 662 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Syverson v.

International Business Machines Corp.,

472 F.3d 1072 (9th Cir. 2007) . . . . . . . . . . . . . . . . . . . 12

Tavenner v.

International Business Machines Corp.,

2022 WL 4449215 (S.D.N.Y. Sept. 23, 2022) . . . . . . . 6

Tavenner v.

International Business Machines Corp.,

2023 WL 4984758 (2d Cir. Aug. 4, 2023) . 6, 13, 18, 19

Thomforde v.

International Business Machines Corp.,

406 F.3d 500 (8th Cir. 2005) . . . . . . . . . . . . . . . . . . . . 12

xvi

Cited Authorities

Page

Thompson v. Fresh Products, LLC,

985 F.3d 509

(6th Cir. 2021) . . . . . . . . . . 4, 5, 9, 20, 21, 22, 23, 24, 25

Tolliver v. Xerox Corp.,

918 F.2d 1052 (2d Cir. 1990) . . . . . . . . . . . . . . . . 8, 9, 24

Statutes and Other Authorities

9 U.S.C. § 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

28 U.S.C. §§ 2201-02 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

29 U.S.C. § 621 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

29 U.S.C. § 626 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

29 U.S.C. § 626(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

29 U.S.C. § 626(d)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

29 U.S.C. § 626(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

29 U.S.C. § 626(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

29 U.S.C. § 626(f)(1) . . . . . . . . . . . . . . . . . . . . . . . 10, 11, 24

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

xvii

Cited Authorities

Page

29 U.S.C. § 633(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

29 U.S.C.S. § 626(f)(1)(A)-(H) . . . . . . . . . . . . . . . . . . . . . 11

42 U.S.C. § 2000e-5(e)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 7

29 C.F.R. § 1625.22(b)(3) (2005) . . . . . . . . . . . . . . . . . . . 12

29 C.F.R. § 1625.22(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Individual Field Office Webpages, available at http://

www.eeoc.gov/field/ . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Noam Scheiber, Making ‘Dinobabies’ Extinct: IBM’s

Push for a Younger Workforce, N.Y. Times, (Feb.

12, 2022), https://www.nytimes.com/2022/02/12/

business/economy/ibm-age-discrimination.html

(Feb 12, 2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Pub. L. 104–208, div. A, title I, § 101(a) [title I, § 119],

Sept. 30, 1996, 110 Stat. 3009 . . . . . . . . . . . . . . . . . . . 24

Robert Weisman, Disparaging e-mails suggest

IBM’s top executives sought to shed older

workers, Bos. Globe, (Feb. 14, 2022, 4:20 p.m.)

https://w w w.bostonglobe.com/2022/02/14/

metro/disparaging-emails-suggest-ibms-topexecutives-sought-shed-older-workers/ . . . . . . . . . . 15

S. Rep. 101-79 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

xviii

Cited Authorities

Page

Thompson v. Fresh Products, LLC, EEOC Amicus

brief Brief, 2020 WL 1160190 (6th Cir. March 2,

2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

INTRODUCTION

This case involves issues of exceptional importance

concerning the interplay between the Age Discrimination

in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq. ,

and the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1 et

seq. The Second Circuit’s opinion in this matter permits

employers to undermine employees’ ability to pursue

ADEA claims in arbitration that they could have pursued

in court, running afoul of Gilmer v. Interstate/Johnson

Lane Corp., 500 U.S. 20, 28 (1991).

Petitioners in this matter are twenty-nine (29) former

IBM employees, who sought declaratory judgments

pursuant to the Declaratory Judgment Act, 28 U.S.C.

§§ 2201-02, that the timing provision in their arbitration

agreements with IBM is unenforceable because it

effectively extinguished their ability to arbitrate their age

discrimination claims against IBM (without meeting the

statutory requirements for a waiver of their ADEA claims,

as set forth in the Older Workers’ Benefits Protection Act

(“OWBPA”), 29 U.S.C. § 626(f)).1

Upon their terminations, Petitioners entered into

arbitration agreements with IBM that released (in

exchange for a small severance payment) almost all claims

they may have against IBM, but expressly excluded claims

under the ADEA. Under this agreement, these employees

were permitted to pursue ADEA claims against IBM, but

1. The OWBPA requires specific disclosures in order for

an employer to obtain a waiver of ADEA claims. This Court has

made clear that this disclosure requirement is strict. See Oubre

v. Entergy Operations, Inc., 522 U.S. 422, 427 (1998) .

only through individual arbitrations. However, Petitioners

were ultimately blocked from pursuing their claims in

arbitration based upon IBM’s argument that their claims

were untimely in arbitration.

Although Petitioners would have been timely to

pursue their claims in court, they were unable to do so in

arbitration due to the timing provision in IBM’s arbitration

agreement. Petitioners thus sought below declarations

that this provision is unenforceable. See Ragone v.

Atlantic Video at Manhattan Center, 595 F.3d 115, 125-26

(2d Cir. 2010) (“[T]he appropriate remedy when a court

is faced with a plainly unconscionable provision of an

arbitration agreement – one which by itself would actually

preclude a plaintiff from pursuing her statutory rights

– is to sever the improper provision of the arbitration

agreement, rather than void the entire agreement.”). The

district courts and the Second Circuit rejected Petitioners’

arguments for such declarations and agreed with IBM’s

argument that the arbitration agreement could eliminate

their claims.

This matter raises a particularly important question,

in light of the growing proliferation of arbitration

agreements in recent years, as caselaw has expanded

their use by employers. This Court’s foundational ruling

in Gilmer established that arbitration is an acceptable

alternative to court proceedings for discrimination claims

(in that case, particularly, as here, an age discrimination

claim under the ADEA), only so long as an employee can

actually pursue the claim in arbitration. See Gilmer, 500

U.S. at 28 (upholding arbitration as an alternative to

court only “[s]o long as the prospective litigant effectively

may vindicate [his or her] statutory cause of action in the

arbitral forum . . . .”). The Second Circuit’s ruling provides

a clear roadmap for employers to avoid the mandate of

Gilmer – and write arbitration agreements that effectively

insulate them from having to defend against claims of

discrimination altogether.

Here, Petitioners could have pursued their claims in

court (absent their arbitration agreements), as their claims

clearly would have been timely, but they were barred from

pursuing their claims in arbitration. They were thus not

able to effectively vindicate their rights under the ADEA

in arbitration. 2

2. IBM argues that the employees could have pursued their

claims in arbitration if they had only brought their claims sooner.

This argument overlooks the fact that the timing scheme set forth

in the ADEA, and as developed through the courts, recognizes

that employees will often not know that they may have been

victims of discrimination until much later than the 180/300 day

limitations period – until they learn of an EEOC investigation or

other employees pursuing similar claims. This timing scheme in

court serves the reasonable function of not encouraging employees

to file discrimination claims as soon as they are terminated or

laid off without knowing, or having reason to know, that their

terminations were the result of discrimination. Eliminating this

rule would open the floodgates, requiring employees to file such

claims immediately, before they have had time to do much if any

investigation – and could place increased burdens on the courts,

as well as the EEOC, to process such claims.

IBM’s argument, and the Second Circuit’s decision below,

adopts such a result – but for arbitration only, not court actions.

This Court has often made clear, most recently in Morgan v.

Sundance, Inc., 142 S. Ct. 1708 (2022) , that arbitration contracts

are not any more enforceable than any other contracts. A rule that

could not be upheld in court cannot be upheld through use of an

arbitration agreement.

What is more, the Second Circuit’s decision created

a clear circuit split with the Sixth Circuit. In Thompson

v. Fresh Products, LLC, 985 F.3d 509, 521 (6th Cir.

2021), the Sixth Circuit held that the ADEA’s limitations

period is a substantive right that cannot be abridged

by contract. Thompson reached its conclusion following

the interpretive expertise of the EEOC, which took this

position in an amicus brief. 3 The Second Circuit, on the

other hand, held in this matter that the ADEA’s limitations

period is a mere procedural right that can be waived.

The practical import of the substantive/procedural

split between the Sixth Circuit and the Second Circuit

is not only that substantive rights cannot be waived

by contract while procedural rights can. It is also that

substantive rights trigger the additional protections from

waiver under a federal statute, the OWBPA,4 whereas

procedural rights do not. See Estle v. International

Business Machines Corp., 23 F.4th 210, 214 (2d Cir. 2022).

IBM used its arbitration agreement to obtain a waiver of

rights under the ADEA, without providing Petitioners

with disclosures required by the OWBPA in order to

obtain such a waiver (and IBM expressly informed the

employees that they could still bring claims under the

3. The EEOC’s amicus brief can be found at Thompson v.

Fresh Products, LLC, EEOC Amicus brief Brief, 2020 WL 1160190,

at *19-23 (6th Cir. March 2, 2020) .

4. The OWBPA requires employers to provide employees over

the age of 40 and subject to mass layoffs the ages of employees who

were and were not laid off, to give the employees some indication

whether they may have been a victim of age discrimination. As

noted these disclosures are required in order for an employer to

obtain a valid waiver of rights under the ADEA. See Oubre, 522

U.S. at 427 .

ADEA in arbitration, by excluding the ADEA from

the release). Under Thompson, the ADEA’s limitations

period is substantive, and it cannot be waived through an

arbitration agreement (particularly where the OWBPA

would not allow such a waiver). However, the Second

Circuit held that the limitations period was a procedural

right, which could be waived (and the OWBPA could be

ignored).

The Second Circuit spent two sentences dismissing

Thompson, reasoning that Thompson did not concern the

arbitration context. App. 15a. In drawing this distinction,

the Second Circuit ran headlong into this Court’s

pronouncement in Morgan, 142 S. Ct. at 1713 , that courts

cannot create special rules to hold arbitration agreements

enforceable when other kinds of contracts would not be.

The Second Circuit’s decision stands to impact not

only Petitioners in this case, but also hundreds of former

IBM employees who find themselves in the same position

as Petitioners, as well as countless employees who will

unquestionably have their rights stripped from them if the

Second Circuit’s decision is allowed to stand. The Court

should grant certiorari to curb this misuse of arbitration

agreements by employers to extinguish statutory rights

through arbitration and to resolve this significant split

between the Sixth and Second Circuits.

OPINIONS BELOW

The Second Circuit’s opinion in In Re: IBM Arbitration

Agreement Litig., is reported at 76 F.4th 74 (2d Cir.

2023), and reproduced at App. 1a. The Second Circuit’s

opinion in Lodi, 2023 WL 4983125 (2d Cir. Aug. 4, 2023),

is reproduced at App. 23a. The Second Circuit’s opinion

in Tavenner, 2023 WL 4984758 (2d Cir. Aug. 4, 2023), is

reproduced at App. 25a. The Second Circuit’s opinion

in Chandler, 2023 WL 4987407 (2d Cir. Aug. 4, 2023), is

reproduced at App. 27a.

The district court’s opinion and order in In Re: IBM

Arbitration Agreement Litig., 2022 WL 2752618 (S.D.N.Y.

July 14, 2022), is reproduced at App. 29a. The district

court’s memorandum opinion and order in Lodi, 2022 WL

2669199 (S.D.N.Y. July 11, 2022), is reproduced at App.

64a. The district court’s opinion and order in Tavenner,

2022 WL 4449215 (S.D.N.Y. Sept. 23, 2022), is reproduced

at App. 79a. The district court’s opinion in Chandler,

2022 WL 2473340 (S.D.N.Y. July 6, 2022), is reproduced

at App. 126a.

JURISDICTION

The Second Circuit issued its opinions and judgments

in In Re: IBM Arbitration Agreement Litig., Lodi,

Tavenner, and Chandler, on August 4, 2023. App. 1a,

23a, 25a, 27a. It denied Petitioners’ timely petitions for

rehearing en banc in In Re: IBM Arbitration Agreement

Litig., Lodi, and Tavenner on September 22, 2023, App.

126a, 128a, 130a, and in Chandler on October 12, 2023.

App. 132a. On December 15, 2023, Justice Sotomayor

extended the time within which to file a petition for a writ

of certiorari to January 22, 2024. This Court’s jurisdiction

is invoked under 28 U.S.C. § 1254(1).

STATUTORY PROVISION INVOLVED

Section 626 of the Age Discrimination in Employment

Act, 29 U.S.C. § 626, reproduced at App. 134a.

STATEMENT

Statutory Background

The ADEA’s Limitations Period

Pursuant to the ADEA, individuals are required to

file a charge with the EEOC within 300 days of the date

of the alleged discriminatory act (or within 180 days in

non-deferral jurisdictions5). 42 U.S.C. § 2000e-5(e)(1); 29

U.S.C. §§ 626(d), 633(b). After a charge has been filed,

the EEOC commences an investigation, and the plaintiff

may initiate a lawsuit after at least sixty (60) days have

passed from the filing of the charge. See Holowecki v.

Federal Exp. Corp., 440 F.3d 558, 562 (2d Cir. 2006); 29

U.S.C. § 626(d). If, after investigating the charge, the

EEOC issues a notice of right to sue to the plaintiff, the

plaintiff must file his or her lawsuit within 90 days of the

receipt of the letter. See Holowecki, 440 F.3d at 563; 29

U.S.C. § 626(e).

The statutory period to file an EEOC charge alleging

age discrimination can be tolled by the filing of a classwide

5. The non-deferral jurisdictions are Alabama, Arkansas,

Georgia, Mississippi, and North Carolina, as well as the territories

American Samoa, Guam, Wake Island, and the Commonwealth

of the Northern Mariana Islands. See Individual Field Office

Webpages, available at http://www.eeoc.gov/field/.

EEOC charge (or an EEOC charge that can reasonably

be understood to state a claim of discrimination that

would affect other similarly situated individuals) under a

rule referred to as the “piggybacking” or “single filing”

rule. The piggybacking rule permits individuals to assert

ADEA claims against employers in court even if their

claims are brought outside the time limit to file an EEOC

charge (180 or 300 days). Under the rule, a plaintiff can

“piggyback” off of an earlier, timely-filed EEOC charge

alleging that the employer engaged in a similar course

of discrimination. See Tolliver v. Xerox Corp., 918 F.2d

1052, 1057-59 (2d Cir. 1990). “Thus, a plaintiff who has

never filed an EEOC charge, and therefore has never

given notice of her discrimination complaint to either the

employer or the EEOC, can still litigate her claims so long

as they fall ‘within the scope’ of the timely filed claims.”

Cronas v. Willis Group Holdings Ltd., 2007 WL 2739769,

at *3 (S.D.N.Y. Sept. 17, 2008).6 An important reason for

the piggybacking rule is that employees may not realize

they have a discrimination claim at the time of their

termination, but only later, when they find out that a class

charge of discrimination has been filed, or that the EEOC

has investigated their employer for discrimination, they

may then want to pursue a claim. See Grayson v. K-Mart

Corp., 79 F.3d 1086, 1103 (11th Cir. 1996). Without this

rule, employees would be required or at least incentivized

to bring claims quickly, without knowing if they have any

6. The administrative prerequisites of discrimination

statutes such as the ADEA and Title VII “must be interpreted

liberally to effectuate [their] purpose of eradicating employment

discrimination,” and courts must look to “fairness, and not

excessive technicality” in addressing such issues. Cronas v. Willis

Group Holdings Ltd., 2007 WL 2739769, at *2 (S.D.N.Y. Sept. 17,

2007).

real basis for such a claim. This rule therefore ameliorates

inefficiency and administrative burden resulting from

unnecessary filings, both at the EEOC and in the courts.

See id.

Importantly, an employee may initiate a separate,

individual action by piggybacking off charges filed by

employees in a separate action. Tolliver, 918 F.2d at 1057

(“[t]he purpose of the charge filing requirement is fully

served by an administrative claim that alerts the EEOC

to the nature and scope of the grievance, regardless of

whether those with a similar grievance elect to join a

preexisting suit or initiate their own.”); see also Calloway

v. Partners Nat. Health Plans, 986 F.2d 446, 450 (11th

Cir. 1993).7

Both the Sixth Circuit and the EEOC have taken

the position that the ADEA’s limitations period is a

substantive right that cannot be abridged by contract. See

Thompson, 985 F.3d at 521; Thompson, EEOC Amicus

Brief, 2020 WL 1160190, at *19-23. Relying on the EEOC’s

expertise, the Sixth Circuit held that an employer cannot

contractually shorten the limitations period of the ADEA

because the timing provisions contained in the ADEA “are

part of the substantive law of the cause of action created

by the ADEA.” Thompson, 985 F.3d at 521.

7. The Second Circuit’s decision in Tolliver to apply the

piggybacking rule to the ADEA context and individual actions is in

line with sister Circuit Court precedents. See Grayson v. K Mart

Corp., 79 F.3d 1086, 1103 (11th Cir. 1996); Howlett v. Holiday Inns,

Inc., 49 F.3d 189, 194 (6th Cir. 1995); cf. Anson v. Univ. of Tex. Health

Sci. Ctr. at Hous., 962 F.2d 539, 541 (5th Cir. 1992).

The Sixth Circuit noted that application of the rule

against enforcing contractual limitations on the ADEA

time period furthers the underlying purpose of the notice

provision: “[T]he ADEA emphasizes the importance of

the pre-suit cooperative process, outlining the EEOC’s

obligation upon receiving a charge to ‘seek to eliminate

any alleged unlawful practice by informal methods of

conciliation, conference, and persuasion.’” 29 U.S.C.

§ 626(d)(2). Altering the time limitations surrounding

these processes risks undermining the statute’s uniform

application and frustrating efforts to foster employer

cooperation.” Id. at 521. 8

B. The Older Workers’ Benefits Protection Act

The ADEA includes a provision called the Older

Workers’ Benefits Protection Act (“OWBPA”), 29 U.S.C.

§ 626(f). The OWBPA mandates strict requirements that

employers must meet in order to obtain a valid waiver

from an employee of “any right or claim” under the ADEA.

See 29 U.S.C. § 626 (f)(1)(H); 29 C.F.R. § 1625.22(f); see

8. The EEOC submitted an amicus brief in Thompson, also

taking the position that “the ADEA’s statutory limitations period

is a substantive right and prospective waivers of its limitations

period are unenforceable.” See Thompson, EEOC Brief, 2020

WL 1160190, at *19-23. The EEOC’s reasonable interpretation of

the ADEA as set forth in this amicus is entitled to deference. See

EEOC v. Comm. Office Prods. Co., 486 U.S. 107, 115 (1988) (“[I]

t is axiomatic that the EEOC’s interpretation of [the ADEA], for

which it has primary enforcement responsibility, need . . . only

be reasonable to be entitled to deference.”); see also Fed. Exp.

Corp. v. Holowecki, 552 U.S. 389, 399 (2008) (quoting Bragdon

v. Abbott, 524 U.S. 624, 642 (1998)); Jones v. American Postal

Workers Union, 192 F.3d 417, 427 (4th Cir. 1999).

also Oubre, 522 U.S. at 427.9 In order for such a waiver to

be valid, it must be “knowing and voluntary.” 29 U.S.C.

§ 626(f)(1).

The OWBPA includes a disclosure requirement,

stating that “if a waiver is requested in connection

with . . . [a]n employment termination program offered to

a group or class of employees” the employer must provide

disclosures to the employee of:

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

covered by such program, any eligibility factors

for such program, and any time limits applicable

to such program; and

(ii) the job titles and ages of all individuals

eligible or selected for the program, and

the ages of all individuals in the same job

classification or organizational unit who are not

eligible or selected for the program.

9. The OWBPA’s requirements have been enforced strictly.

See, e.g., Kruchowski v. Weyerhaeuser Co., 446 F.3d 1090, 1093-96

(10th Cir. 2006) (finding waiver invalid where OWBPA disclosures

did not include entire decisional unit); Loksen v. Columbia

Univ., 2013 WL 5549780, at *7-8 (S.D.N.Y. Oct. 14, 2013) (finding

substantial compliance not enough; omission of even one person

from group of 17 considered, although probably immaterial,

invalidated waiver); Butcher v. Gerber Prods. Co., 8 F. Supp. 2d

307, 314 (S.D.N.Y. 1998) (holding that releases that did not contain

all the elements listed in 29 U.S.C.S. § 626(f)(1)(A)-(H) of the

OWBPA, were invalid and because employers were required to

comply with the OWBPA upon their first notification to employees,

their later correspondence could not cure the earlier deficiencies).

29 U.S.C. § 626(f)(1)(H).10

The OWBPA was enacted out of Congress’ concern

that employers would obtain waivers from employees

of their rights under the ADEA without ever knowing

that they had a potential claim for age discrimination.

The Senate Committee on Labor and Human Resources

explained that, in layoffs, employees are often not aware

“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.” S. Rep. 101-79, at 9 (1989).

Likewise, “[o]lder workers too often learn of these group

termination programs in an atmosphere of surprise

and uncertainty,” where they have no way to know their

employers’ motives. Id. at 21.

10. Moreover, the arbitration agreement’s purported waiver

of the piggybacking is further invalid because OWBPA requires

that, for a waiver to be valid, it must be “a part of an agreement

between the individual and the employer that is calculated to be

understood by such individual, or by the average individual

eligible to participate.” 29 U.S.C. § 626(f)(1(A) (emphasis added).

The OWBPA’s requirement that the language of the waiver be

calculated to be understood by the employee has been strictly

construed by numerous courts, including against IBM. See Syverson

v. International Business Machines Corp.,472 F.3d 1072, 1082-87

(9th Cir. 2007) (invalidating a waiver containing both a release and

a covenant not to sue because average individuals might be confused

and think that they could still bring an action under the ADEA);

Thomforde v. International Business Machines Corp., 406 F.3d 500,

503-05 (8th Cir. 2005) (same); Bogacz v. MTD Products, Inc., 694

F. Supp. 2d 400, 404-11 (W.D. Pa. 2010); Rupert v. PPG Industries,

Inc., 2009 WL 596014, at *38-49 (W.D. Pa. Feb. 26, 2009); see also

29 C.F.R. § 1625.22(b)(3) (2005) (comprehensibility requirement

“usually will require the limitation or elimination of technical jargon

and of long, complex sentences.”).

II. Factual and Procedural Background

Petitioners are twenty-nine (29) former employees

of IBM, who sought declaratory judgments that two

provisions of IBM’s arbitration agreement are not

enforceable (the timeliness provision at issue here and

a confidentiality provision 11), as they undermine or

extinguish their ability to pursue ADEA claims against

IBM.12 (App. 1a-4a, 24a, 26a, 28a; In Re: IBM Appellants’

Second Circuit Appendix (hereinafter “In Re: IBM App.”)

at App.001-010.13) As will be explained below, even though

Petitioners would have been timely in pursuing their

ADEA claims in court, they were barred from pursuing

those claims in arbitration by virtue of the arbitration

agreement’s timeliness provision. (In Re: IBM App.001010.)

Petitioners’ Arbitration Agreements

Petitioners alleged that IBM engaged in a systemic,

years-long effort to reduce its number of older workers to

11. Petitioners also challenged the confidentiality provision

of IBM’s agreement below but are asking this Court to review

only their challenge to the timeliness provision.

12. These 29 employees are a subset of a much larger group

of hundreds of employees who have attempted to pursue their

ADEA claims against IBM in arbitration and were prevented from

doing so based on the arbitration agreement’s timeliness provision.

13. For ease of reading, Petitioners cite to the appendix

submitted in In Re: IBM Arbitration Agreement Litig. rather than

the appendices submitted in all four appeals before the Second

Circuit. The appendices in Lodi, Tavenner, and Chandler are

materially similar to that in In Re: IBM Arbitration Agreement

Litig., and Petitioners will note any relevant differences.

create a younger workforce. (App. 1a; In Re: IBM App.019020.) Further, they alleged that they fell victim to IBM’s

discriminatory scheme when IBM terminated them on the

basis of age. (App. 4a; In Re: IBM App.003.) Petitioners

were not alone in making these allegations. The EEOC

engaged in a wide-ranging multi-year investigation of age

discrimination at IBM. (In Re: IBM App.032-033.) As part

of that investigation, the EEOC consolidated claims of

age discrimination brought by 58 employees14 who alleged

they were separated from IBM because of their age. (In

Re: IBM App.032-033.) On August 31, 2020, the EEOC

issued a determination finding reasonable cause to believe

that IBM engaged in classwide age discrimination, on

the basis of “top-down messaging from [IBM’s] highest

ranks directing managers to engage in an aggressive

approach to significantly reduce the headcount of older

workers to make room for Early Professional Hires” and

evidence that “it was primarily older workers . . . in the

total potential pool of those considered for layoff.” (In Re:

IBM App.032-033.)15

14. Petitioner Lodi was one of the charging parties in

this investigation. (Lodi Appellants’ Second Circuit Appendix

(hereinafter “Lodi App.”) at App.015-016.)

15. Following the EEOC investigation and claims brought by

some individuals (who were terminated later in the IBM layoffs

and thus were able to bring claims quickly in arbitration – within

the 180/300 day deadlines), shocking evidence came to light

substantiating these claims. Such evidence included executives

and managers disparagingly referring to older workers as

“dinobabies” who needed to be made “extinct”, and other explicit

evidence supporting claims of widespread age discrimination

in layoffs. See Noam Scheiber, Making ‘Dinobabies’ Extinct:

IBM’s Push for a Younger Workforce, N.Y. Times, (Feb. 12, 2022),

https://www.nytimes.com/2022/02/12/business/economy/ibm-age-

After their layoffs, Petitioners signed agreements

in exchange for a modest severance payment; these

agreements released most claims that Petitioners may

have against IBM, with the specific exception of claims

under the ADEA. (App. 1a-2a; In Re: IBM App.020.) The

agreements allowed Petitioners to pursue claims under

the ADEA but only in individual arbitration. (App. 1a-2a;

In Re: IBM App.020.) The agreements also included the

following provision:

To initiate arbitration, you must submit a

written demand for arbitration to the IBM

Arbitration Coordinator no later than the

expiration of the statute of limitations (deadline

for filing) that the law prescribes for the claim

that you are making or, if the claim is one which

must first be brought before a government

agency, no later than the deadline for the filing

of such a claim. If the demand for arbitration is

not timely submitted, the claim shall be deemed

waived. The filing of a charge or complaint with

a government agency or the presentation of a

concern though the IBM Open Door Program

shall not substitute for or extend the time for

submitting a demand for arbitration.

(App. 2a.) IBM did not provide the disclosures required by

the OWBPA to Petitioners with their agreements, which

would have allowed IBM to obtain a waiver of their ADEA

claims. (In Re: IBM App.020.)

discrimination.html (Feb 12, 2022); Robert Weisman, Disparaging

e-mails suggest IBM’s top executives sought to shed older workers,

Bos. Globe, (Feb. 14, 2022, 4:20 p.m.) https://www.bostonglobe.

com/2022/02/14/metro/disparaging-emails-suggest-ibms-topexecutives-sought-shed-older-workers/.

B. Petitioners’ Efforts to Arbitrate their ADEA

Claims

Twenty-seven of the Petitioners sought to bring

ADEA claims against IBM in arbitration.16 (App. 4a,

24a, 26a, 28a; In Re: IBM App.020.) In each case, the

arbitrator dismissed their claims under the above-quoted

“timeliness provision” of IBM’s arbitration agreement

because they had not filed their arbitration demand within

180 or 300 days of their layoff. (App. 4a, 24a, 26a, 28a; In

Re: IBM App.021.) Petitioners argued that their claims

were nevertheless timely under the ADEA’s piggybacking

rule, because they could piggyback on the earlier-filed

EEOC charges17 filed by the plaintiffs in a then-pending

ADEA collective action, Rusis v. International Business

Machines Corp., Civ. Act. No. 1:18-cv-08434 (S.D.N.Y.).

There is no question that their claims would have been

recognized as timely filed if they were in court, based on

the piggybacking rule. (In Re: IBM App.021.) However,

the arbitrators rejected those arguments and dismissed

16. The two other Petitioners in this appeal, Brian Flannery

and Phillip Corbett, sought a declaration in court first rather than

going straight to arbitration. (App. 4a; App. 4a, 24a, 26a, 28a; In

Re: IBM App.021.)

17. As a predicate to bringing the action, Edvin Rusis filed a

class EEOC charge on May 10, 2018, alleging that IBM engaged in a

companywide discriminatory scheme of laying off its older workers.

(In Re: IBM App.023.) Other named plaintiffs in that action, Henry

Gerrits, Phil McGonegal, and Sally Gehring, also timely filed timely

classwide EEOC charges. (In Re: IBM App.023.) Ms. Gehring was

one of fifty-eight former IBM employees whose charge led to the

EEOC finding that there was reasonable cause to believe that IBM

engaged in age discrimination, described at p. 14 supra. (In Re:

IBM App.032-033.)

their arbitration claims as untimely. (App. 4a; In Re: IBM

App.021.)18

Petitioners’ Efforts to Challenge the Timeliness

Provision in Court

Following these rulings by the arbitrators in most

(but not all) of their cases, Petitioners initiated individual

declaratory judgment actions in the Southern District of

New York, challenging the agreements’ timeliness and

confidentiality provisions.19 (App. 5a, 24a, 26a, 28a; In

18. Notably, Petitioner Lodi did not even need to rely on the

piggybacking rule since she herself timely filed an EEOC charge.

(Lodi Appellants’ Second Circuit Appendix (hereinafter “Lodi App.”)

at App.015-016.) The EEOC investigated her charge over a period of

several years, and in the meantime, she also initiated an arbitration

against IBM. (Lodi App.015-016.) Even though she had timely filed

an EEOC charge (well before 90 days before the EEOC’s dismissal

of her claim), the arbitrator deemed her arbitration untimely. (Lodi

App.015-016.)

Thus, even though Petitioner Lodi had filed her arbitration

demand more than two years before she received her Notice of Right

to sue from the EEOC, it was nevertheless deemed untimely because

the arbitrator agreed with IBM that the arbitration agreement

required the demand to be submitted within 300 days of the date that

Petitioner Lodi was informed of her termination. (Lodi App.015-016.)

19. Before Petitioners initiated individual actions, they opted

into the Rusis collective action (with the exception of Petitioners

Flannery and Kamienski) in order to challenge the arbitration

agreement’s timing provision (with the intent of arbitrating

their claims after obtaining such a ruling). (App. 4a; In Re: IBM

App.021-022.) However, the Rusis court dismissed Petitioners’

claims from the case without prejudice on the ground that their

agreements contained a class action waiver. See App. 4a; Rusis v.

International Business Machines Corp., 529 F. Supp. 3d 178, 193-

Re: IBM App.022.) Judge Jesse M. Furman consolidated

26 of those cases into the In Re: IBM Arbitration Litig.

matter. See In Re: IBM Arbitration Agreement Litig., Civ.

Act. No. 1:21-cv-06296-JMF (S.D.N.Y.). Three other cases

remained unconsolidated, including Lodi v. International

Business Machines Corp., Civ. Act. No. 1:21-cv-06336-JGK

(S.D.N.Y.); Tavenner v. International Business Machines

Corp., Civ. Act. No. 1:21-cv-06345-KMK (S.D.N.Y.); and

Chandler v. International Business Machines Corp., Civ.

Act. No. 1:21-cv-06319-JGK (S.D.N.Y.).

In each of those cases, Petitioners moved for summary

judgment, while IBM moved to dismiss. The respective

district courts granted IBM’s motions to dismiss (without

addressing Petitioners’ motions for summary judgment).

(App. 5a-6a, 29a-125a.)

Petitioners timely appealed, and the Second Circuit

Panel heard argument in all four cases in tandem. (App.

1a-28a.) The Panel issued its substantive opinion in In

Re: IBM Arbitration Agreement Litig. (App. 1a-22a) and

issued summary orders adopting that reasoning in Lodi

(App. 23a-24a), Tavenner (App. 25a-26a), and Chandler

(App. 27a-28a). The Panel concluded that the piggybacking

rule was per se inapplicable in the arbitration context and

that the piggybacking rule was not a substantive right

but instead a procedural right that could be waived in an

arbitration agreement. 20 (App. 12a-15a.)

97 (S.D.N.Y. 2021). They later initiated individual actions, which

were consolidated into the In Re IBM Arbitration Litig. matter.

20. This aspect of the Panel’s decision pertained to Petitioners

Corbett and Flannery. With respect to the other 24 Petitioners

in In Re: IBM Arbitration Agreement Litig. who had already

Petitioners in each of the four cases submitted timely

petitions for rehearing en banc. The Second Circuit denied

those petitions in In Re: IBM Arbitration Agreement

Litig., Lodi, and Tavenner on September 22, 2023. (App.

126a-130a.) The Second Circuit denied the petition in

Chandler on October 12, 2023. (App. 132a.)

REASONS FOR GRANTING THE PETITION

This case involves issues of exceptional importance

concerning the interaction of the ADEA and the FAA.

The Second Circuit’s opinion below permits employers

to deploy arbitration agreements to prevent claimants

from vindicating otherwise viable age discrimination

claims, running afoul of Gilmer, 500 U.S. at 28. Gilmer

makes clear that arbitration is an acceptable alternative

forum only so long as an employee can pursue their

claims in arbitration just as they could in court, without

sacrificing any substantive rights. IBM – now with the

Second Circuit’s blessing – has been able to use arbitration

agreements to curtail the ability of hundreds of former

employees to pursue ADEA claims against it (even

individually, in arbitration). 21

obtained final awards dismissing their claims, the Panel affirmed

the District Court’s decision declining to exercise jurisdiction

under the Declaratory Judgment Act. (App. 12a.) The district

court erred in assuming that there was no practical likelihood

that those 24 Petitioners could reopen their claim in arbitration,

should they prevail in this appeal.

21. In more recent decisions, this Court has upheld arbitration

agreements precluding class actions, finding the class action to be

a procedural mechanism for bringing some claims. See, e.g., Epic

Systems Corp. v. Lewis, 138 S. Ct. 1612, 1621-30 (2018) ; Estle, 23

F.4th at 214. However, these cases assumed that the claims could

The practical effect of the timeliness provision in

IBM’s arbitration agreement is that Petitioners would

have had years longer to submit their claims in court

than they had in arbitration. This provision thus stood as

an impermissible impediment to the effective vindication

of their claims. 22 Moreover, in holding that the ADEA’s

timing scheme was merely a procedural right, the Second

Circuit’s decision created a significant split with the Sixth

Circuit’s decision in Thompson, 985 F.3d at 521, which held

that the ADEA’s timing scheme is a substantive right. The

Second Circuit’s decision likewise served to elevate IBM’s

arbitration agreement over other kinds of contracts with

respect to enforceability, in contravention of Morgan, 142

S. Ct. at 1713.

still be brought individually in arbitration. That is exactly what

Petitioners attempted to do but were blocked from doing so.

22. See Ragone v. Atlantic Video at Manhattan Center, 595

F.3d 115, 125 (2d Cir. 2010) (explaining that “if certain terms of

an arbitration agreement served to act ‘as a prospective waiver of

a party’s right to pursue statutory remedies . . . , we would have

little hesitation in condemning the agreement as against public

policy”); Greer v. Sterling Jewelers, Inc., 2018 WL 3388086, at

*6-7 (E.D. Cal. July 10, 2018) (finding arbitration agreement’s

one-year statute of limitation to bring a Fair Employment &

Housing Act claim to be unconscionable, where the FEHA statute

provides litigants with one year to file such a claim with the

state administrative agency plus one additional year from the

administrative claim being processed to file a civil claim); Newton

v. American Debt Services, Inc., 854 F.Supp.2d 712, 732-33 (N.D.

Cal. 2012) (finding arbitration clause as a whole unconscionable and

therefore unenforceable; “[T]he shortened statute of limitations

has the practical effect of limiting a customer’s ability to bring

a claim in arbitration by requiring a customer to give up their

statutorily-mandated statute of limitations and risk losing their

claim forever if they did not bring a claim within one year.”).

This Case Presents an Important Issue Which is

Likely to Recur and Over Which There is a Clear

Circuit Split

The fundamental legal error of the Second Circuit’s

holding is its conclusion that the ADEA’s timing scheme

(which includes the piggybacking rule) is not a substantive

right. This conclusion is directly at odds with the Sixth

Circuit in Thompson, 985 F.3d at 521, as well as the

EEOC’s interpretation of the ADEA.

The arbitrators in Petitioners’ cases held that their

arbitration demands were untimely even though those

individuals would indisputably would have been timely to

proceed in court if not for the arbitration agreement. The

Second Circuit condoned the conclusion that Petitioners

could be barred from pursuing claims in arbitration that

they would have been able to pursue in court. 23

The Second Circuit rejected Petitioners’ contention

that the ADEA’s timing scheme is a substantive right.

23. Petitioner Lodi’s case was especially egregious. As

explained in note 20 supra, her limitations period was abridged by

more than two years even though she timely filed an EEOC charge.

(Lodi App.015-016.) The EEOC investigated her claim, found

reasonable cause to believe that IBM had discriminated against her

(and many others), unsuccessfully attempted to conciliate her claim,

and issued a Notice of Right to Sue. (Lodi App.015-016.) Then, when

she did bring her claim in arbitration, and even though she submitted

her arbitration demand more than two years before receiving the

Notice of Right to Sue (which should have set her deadline to bring

a claim for 90 days after receiving that notice), the arbitrator in her

case nevertheless adopted IBM’s argument and held that her claim

was untimely. (Lodi App.015-017.)

In so doing, it created a clear circuit split with the Sixth

Circuit in Thompson (as well as diverging from the

EEOC’s interpretation of the ADEA). Both the Sixth

Circuit and the EEOC found that the ADEA’s timing

scheme is a substantive right that cannot be abridged

by contract. See Thompson, 985 F.3d at 521; Thompson,

EEOC Brief, 2020 WL 1160190, at *19-23. As the

Sixth Circuit explained, “[a]ltering the time limitations

surrounding [the ADEA’s] processes risks undermining

the statute’s uniform application and frustrating efforts to

foster employer cooperation.” Thompson, 985 F.3d at 521.

The Second Circuit simply brushed off Thompson

because it “did not involve an arbitration agreement or

the FAA.” (App. 15a.) While it is true that Thompson did

not address an arbitration agreement, 24 that distinction

does not impact whether or not the ADEA’s timing scheme

is a substantive right. According to the Second Circuit,

an arbitration agreement is free to abridge the ADEA

limitations period, even though other kinds of contracts

cannot. But this conclusion runs afoul of this Court’s

decision in Morgan, 142 S. Ct. at 1713 , where the Court

held that arbitration agreements cannot be elevated over

other kinds of contracts.

In Morgan, the Court explained that “the FAA’s

‘policy favoring arbitration’ does not authorize federal

courts to invent special, arbitration-preferring procedural

rules.” Morgan, 142 S.Ct. at 1713. Indeed, the FAA

24. In Thompson the employer required its employee to sign

an agreement stating that any employment-related claims that

arose against the employer would bound by a six-month limitations

period. Thompson, 985 F.3d at 515.

contains “a bar on using custom-made rules, to tilt the

playing field in favor of (or against) arbitration.” Id. at

1714. IBM’s arbitration agreement is no different from

the pre-employment contract at issue in Thompson – in

either case, the ADEA’s limitations period is a substantive

right that cannot be abridged by contract.

The Second Circuit also opined that Petitioners’

argument that the piggybacking rule is a substantive right

is foreclosed by 14 Penn Plaza LLC v. Pyett, 556 U.S. 247,

259, 265-66 (2009). But 14 Penn Plaza says nothing about

whether the ADEA’s timing scheme is a substantive or a

procedural right – it merely held that the right to a judicial

forum (as opposed to an arbitral forum) is a procedural

right. See id. 14 Penn Plaza does not declare the right to

be free from workplace age discrimination to be the only

substantive right (to the exclusion of all others) provided

under the ADEA; the cited portion of the case simply

stands for the now widely accepted rule that “[t]he decision

to resolve ADEA claims by way of arbitration instead of

litigation does not waive the statutory right to be free

from workplace age discrimination.” See id.

The inclusion of the OWBPA in the ADEA serves to

strengthen the argument that the ADEA’s timing scheme

is a substantive right, as the EEOC itself has recognized:

The ADEA does have one other arguably

relevant provision with no analogue in Title

VII: 29 U.S.C. § 626(f) . . ., which expressly

governs waivers of “rights or claims under

this chapter.” However, § 626(f), read together

with Logan’s holding that a statutory limitation

period is a substantive right, only strengthens

the argument against construing the ADEA’s

limitations period as prospectively waivable.

Thompson, EEOC Amicus Brief, 2020 WL 1160190, at

*25. The Sixth Circuit agreed. Thompson, 985 F.3d at 521.

Here, Petitioners could not have waived their right to

enjoy the full ADEA limitations period – and thus pursue

their claims at all - because IBM did not provide the

OWBPA disclosures necessary to render such a waiver

“knowing and voluntary.” As the Second Circuit held in

Estle, 23 F.4th at 214, where – as here – an employer seeks

to obtain a waiver of a substantive right under the ADEA,

the employer must first satisfy the strict requirements of

OWBPA, which IBM did not do.

The Second Circuit, however, also wrote off the

applicability of the OWBPA, again because it did not

believe that the piggybacking rule was a substantive

right. 25 Under Estle, 23 F.4th at 214, “[t]he phrase ‘right

or claim’ as used in § 626(f)(1) is limited to substantive

rights and does not include procedural ones,” and as such,

the Second Circuit concluded that the OWBPA was not at

play.26 (App. 13a-15a.) In holding that the ADEA limitations

25. The Second Circuit appeared not even to recognize

that Petitioner Lodi’s claim did not even need to rely on the

piggybacking rule.

2 6. T he Second Ci rcu it concluded f u r ther that the

piggybacking rule is judge-made and is not found in the text of the

ADEA but did not explain why that matters. For decades, courts

have read the piggybacking rule into the ADEA’s timing scheme.

Indeed, since the Second Circuit adopted the piggybacking rule

in Tolliver, 918 F.2d at 1057-59, Congress has amended the ADEA

but has not precluded piggybacking. See, e.g., Pub. L. 104–208,

period was a procedural right rather than a substantive

right, the Second Circuit completely discounted the wellreasoned conclusion of the Sixth Circuit in Thompson and

the interpretation of the ADEA by the EEOC.

Under the guise of following the FAA, the Second

Circuit bent over backward to permit IBM’s improper

use of its arbitration agreement to eliminate dozens of

employees’ substantive ADEA claims (and effectively

hundreds of other employees who filed their claims in

arbitration and are awaiting the final outcome of this

appeal). Certiorari is warranted to correct the Second

Circuit’s misapprehension and to resolve the split between

the Second and Sixth Circuits.

II. The Second Circuit Exceeded the Bounds of the

FAA in Holding that the Piggybacking Rule Does

Not Apply in Arbitration

The Second Circuit’s decision is also fundamentally

flawed in that it created an extreme rule out of whole cloth

that the piggybacking rule is per se inapplicable in the

context of arbitration. This rule is completely unsupported

by law and unduly impedes the right of parties to

contract for the application of the piggybacking rule in an

arbitration agreement. In its decision, the Second Circuit

relies on only the Eleventh Circuit’s decision in Smith

v. International Business Machines Corp., 2023 WL

3244583 (11th Cir. May 4, 2023) , but Smith too appears

to have made up this rule out of whole cloth.

div. A, title I, § 101(a) [title I, § 119], Sept. 30, 1996, 110 Stat. 3009,

3009–23.

Ironically, Smith invoked the proposition set forth in

Stolt-Nielsen v. AnimalFeeds International Corp., 559

U.S. 662, 683 (2010) , that “[p]arties are generally free

to structure their arbitration agreements as they see

fit” and to agree on “rules under which any arbitration

will proceed.” Smith, 2023 WL 3244583, at *6. But the

Second Circuit’s conclusion that the piggybacking rule

can never apply in arbitration goes so far that it actually

would impede parties who expressly wished to contract

for the ADEA’s timing scheme in whole from doing so. 27

The Second Circuit has, in effect, invented an arbitrationspecific rule to impede the ability of Petitioners to pursue

their ADEA cases, thus running afoul of this Court’s

admonition that under the FAA, “federal policy is about

treating arbitration contracts like all others . . . .” Morgan

, 142 S. Ct. at 1714. 28

27. The Second Circuit’s extreme position would also

require reversal of many arbitration awards that have applied

the piggybacking rule. See, e.g., In the Matter of Arbitration

Between: [Claimant], Claimant, v. [Respondent] (Food and

Kindred Products), Respondent, 2018 WL 1933357 (Arb. Frank

Abramson Feb. 27, 2018), and In the Matter of Arbitration

Between: [Claimant], Claimant, and [Respondent] (Services,

Not Elsewhere Classified), 2017 WL 6943558, at *4 (Arb. Linda

F. Close, AAA Dec. 15, 2017) (“The Arbitrator now rules that

Claimant had a right, under the single-filing rule, to proceed as

she did.”) .

28. Moreover, the EEOC charge-filing process is relevant to

arbitration notwithstanding that the arbitration agreement, like

here, can waive the administrative exhaustion requirement. Courts

have held that employers do not waive their right to arbitrate by

participating in EEOC investigations, see e.g., Marie v. Allied Home

Mortgage, 402 F.3d 1 (1st Cir. 2005) , reasoning that the purpose of

the EEOC investigation is to determine whether there are grounds

to conclude that discrimination may have occurred. As the First

Certiorari is urgently needed because the Second

Circuit overstepped the boundaries of the FA A by

adopting a rule that would, ironically, limit the ability

of parties to freely contract for the application of the

piggybacking rule.

III. The Second Circuit Wrongly Held that the

Piggybacking Doctrine Does Not Operate to

Extend a Limitations Period

Finally, certiorari is warranted because the Second

Circuit also bafflingly concluded that the piggybacking

rule has nothing to do with the ADEA limitations

period. According to the Second Circuit, “[a]ll that

the piggybacking rule does is functionally waive the

administrative-exhaustion requirement – it does not

extend the 300-daydeadline to file an EEOC charge.”

(App. 13a.)

The Second Circuit blinded itself to the practical

ramifications of the piggybacking rule. Outside of the

arbitration context, plaintiffs do not have to bring

discrimination claims within the deadline for filing an

EEOC charge (either 300 days or 180 days in non-deferral

jurisdictions). Instead, they are allowed to piggyback on

previously filed class claims and file court actions even

years after their EEOC charge filing period has run. 29

Circuit stated: “We will not force an employer to make a wasteful,

preemptive decision to arbitrate.” Id. The same should hold true for

employees.

29. Numerous courts have recognized that the piggybacking

rule is both an administrative exhaustion doctrine and a limitations

doctrine. See, e.g., Leal v. Wal-Mart Stores, Inc., 2016 WL 2610020,

This approach allows employees who may not have

any reason to know at the time of their termination that

they had a viable discrimination claim to still pursue such

a claim, if they learn later – through a filing by other

employees or a determination by the EEOC – that they

may have been the victim of discrimination. 30

The Second Circuit’s failure to recognize this point

serves to minimize the degree to which Petitioners’ ability

to pursue their age discrimination claims was impeded.

IBM’s attempt to use the arbitration agreement to shut

down ADEA claims that the Petitioners would have

been able to pursue in court does not allow for “effective

vindication” of their claims, as required by Gilmer.

at *5 (E.D. La. May 6, 2016) (noting that where an individual has filed

a timely classwide EEOC charge, the piggybacking rule “tolls the

statute of limitations” for the individuals in the scope of the charge);

Catlin v. Wal-Mart Stores, Inc., 123 F. Supp. 3d 1123, 1131 (D. Minn.

2015) (same); Allen v. Sears Roebuck and Co., 2010 WL 259069, at

*2 (E.D. Mich. Jan. 20, 2010) (same); Holowecki v. Federal Express

Corp., 2002 WL 31260266, at *3 (S.D.N.Y. Oct. 9, 2002) (same);

Shannon v. Hess Oil Virgin Islands Corp., 100 F.R.D. 327, 333

(D.V.I. 1983) (where the piggybacking rule acts to excuse plaintiffs’

exhaustion requirements, “it would be illogical not to excuse [the

plaintiffs] from the limitations period set forth therein”).

30. As noted, here, employees would not have any reason to

know they were chosen for layoff based on their age until learning

of the investigations by the EEOC and claims brought by other

employees. By the time the evidence of executives calling older

employees “dinobabies” who needed to be made “extinct” was

uncovered, see note 17 supra, the limitations period would have

long run for most employees with viable age discrimination claims.

The legislative history of OWBPA evinces Congress’s

concern about this very problem. As explained supra,

Congress was motivated to pass the OWBPA explicitly

due to concerns “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.” S. Rep. 10179, at 9 (1989). The piggybacking rule serves as a safeguard

against unscrupulous employers dodging liability simply

because the 300 or 180 days have run. Here, Petitioners

have been denied that safeguard, simply by having signed

an arbitration agreement that they were told would allow

them to still pursue claims for age discrimination (and did

not include the OWBPA disclosures that would allow IBM

to obtain releases of their ADEA claims). Petitioners have

not enjoyed a genuinely “fair opportunity” to advance

their claims in arbitration.

CONCLUSION

This Court should grant the petition for certiorari.

This Court in Gilmer, 500 U.S. at 28, made clear that

arbitration is only an acceptable alternative to court if

individuals can pursue the statutory claims in arbitration

that they could pursue in court. Petitioners’ ADEA claims

were barred in arbitration even though they would have

been timely in court. The disagreement between the

Sixth Circuit and the Second Circuit as to whether the

ADEA’s timing scheme is a substantive or procedural

right presents an important circuit split that this Court

needs to resolve.

Respectfully submitted,

Shannon Liss-Riordan

Counsel of Record

Lichten & Liss-Riordan, P.C.

727 Boylston Street,

Suite 2000

Boston, MA 02116

(617) 994-5800

sliss@llrlaw.com

Counsel for Petitioners

January 22, 2024

APPENDIX

TABLE OF APPENDICES

Page

APPENDIX A — IN RE IBM OPINION OF THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT, DATED

AUGUST 4, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

APPENDIX B — LODI OPINION OF THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT, FILED

AUGUST 4, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23a

APPENDIX C — TAVENNER OPINION OF THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT, FILED

AUGUST 4, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25a

APPENDIX D — CHANDLER OPINION OF

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT, FILED

AUGUST 4, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27a

A PPENDI X E — IN RE IBM OPINION

AND ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE SOUTHERN

DI S T R IC T OF N E W YOR K , F I L ED

JULY 14, 2022 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29a

A PPENDIX F — LODI MEMORA NDUM

OPINION AND ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF NEW YORK,

FILED JULY 11, 2022 . . . . . . . . . . . . . . . . . . . . . . . 64a

Table of Appendices

Page

A PPENDI X G — TAV ENNER OPINION

AND ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE SOUTHERN

DI S T R IC T OF N E W YOR K , F I L ED

SEPTEMBER 23, 2022 . . . . . . . . . . . . . . . . . . . . . . 79a

A PPENDIX H — CHA NDLER OPINION

OF THE UNITED STATES DISTRICT

COURT FOR THE SOU THERN

DI S T R IC T OF N E W YOR K , F I L ED

JULY 6, 2022 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104a

A PPEN DI X I — IN RE IBM DENI A L

OF R EH E A RI NG OF T H E U N I T ED

STAT ES COU RT OF A PPEA LS FOR

T H E S E C ON D C I R C U I T, F I L E D

SEPTEMBER 22, 2023 . . . . . . . . . . . . . . . . . . . . . 126a

A P P E N DI X J — L O DI D E N I A L O F

REHEA RING OF THE U NIT ED

STAT ES COU RT OF A PPEA LS FOR

T H E S E C O N D C I R C U I T, D A T E D

SEPTEMBER 22, 2023 . . . . . . . . . . . . . . . . . . . . . 128a

A PPENDI X K — TAV ENNER DENI A L

OF R EH E A RI NG OF T H E U N I T ED

STAT ES COU RT OF A PPEA LS FOR

T H E S E C O N D C I R C U I T, D A T E D

SEPTEMBER 22, 2023 . . . . . . . . . . . . . . . . . . . . . 130a

iii

Table of Appendices

Page

A PPENDI X L — CHA NDLER DENI A L

OF R EH E A RI NG OF T H E U N I T ED

STAT ES COU RT OF A PPEA LS FOR

T H E S E C O N D C I R C U I T, D A T E D

OCTOBER 12, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . 132a

APPENDIX M — RELEVANT STATUTE . . . . . . 134a

Appendix

APPENDIX A — IN

RE IBMAOPINION OF THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT, DATED AUGUST 4, 2023

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term 2022

May 22, 2023, Argued;

August 4, 2023, Decided

No. 22-1728

IN RE: IBM ARBITRATION AGREEMENT

LITIGATION; GREGORY ABELAR, WILLIAM

ABT, BRIAN BROWN, BRIAN BURGOYNE,

MARK CARLTON, WILLIAM CHASTKA,

PHILLIP CORBETT, DENISE COTE, MICHAEL

DAVIS, MARIO DIFELICE, JOSEPH DUFFIN,

BRIAN FLANNERY, FRED GIANINY, OM

GOECKERMANN, MARK GUERINOT, DEBORAH

KAMIENSKI, DOUGLAS LEE, COLLEEN LEIGH,

STEPHEN MANDEL, MARK MCHUGH, SANDY

PLOTZKER, ALEXANDER SALDARRIAGA,

RICHARD ULNICK, MARK VORNHAGEN,

JAMES WARREN, AND DEAN WILSON,

Plaintiffs-Appellants,

Appendix A

INTERNATIONAL BUSINESS MACHINES

CORPORATION,

Defendant-Appellee.*

On Appeal from the United States District Court

for the Southern District of New York.

Before: Pooler, Wesley, and Park, Circuit Judges.

I. BACKGROUND

A. Facts1

Plaintiffs allege that IBM terminated thousands of

older workers in the early 2010s to be more competitive

in emerging technology sectors. Most of the terminated

employees sig ned a sepa rat ion ag reement (t he

“Agreement”) in exchange for severance payments and

other benefits. The Agreement included a class- and

collective-action waiver requiring claims arising from

their termination—including ADEA claims—to be

resolved by “private, confidential, final and binding

arbitration according to the IBM Arbitration Procedures.”

App’x at App.102. The Agreement required Plaintiffs

to bring claims within a certain time (the “Timeliness

Provision”):

* The Clerk of Court is respectfully directed to amend the

caption accordingly.

1. We accept Plaintiffs’ factual allegations as true on a motion

to dismiss. Celestin v. Caribbean Air Mail, Inc., 30 F.4th 133, 136

n.1 (2d Cir. 2022).

Appendix A

Time Limits and Procedure for Initiating

Arbitration. To initiate arbitration, you must

submit a written demand for arbitration to

the IBM Arbitration Coordinator . . . [I]f the

claim is one which must first be brought before

a government agency, [you must submit] no

later than the deadline for the filing of such

a claim. If the demand for arbitration is not

timely submitted, the claim shall be deemed

waived. The filing of a charge or complaint with

a government agency . . . shall not substitute for

or extend the time for submitting a demand for

arbitration.

Id. at App.105. The ADEA typically requires plaintiffs

to file a complaint called a “charge” with the Equal

Employment Opportunity Commission (“EEOC”) within

300 days of the alleged discrimination. See 29 U.S.C.

§ 626(d)(1)(B). Employees who signed the Agreement had

300 days to submit written demands for arbitration.

The Agreement also included a confidentiality

requirement (the “Confidentiality Provision”):

Privacy and Confidentiality. . . . To protect

the confidentiality of proprietary information,

trade secrets or other sensitive information, the

parties shall maintain the confidential nature

of the arbitration proceeding and the award.

App’x at App.106.

Appendix A

Plaintiffs are twenty-six former IBM employees

who were terminated in 2017 and 2018. All signed the

Agreement. After the deadlines for arbitrating their

claims had passed, twenty-four Plaintiffs submitted

written demands for arbitration, alleging that they were

terminated in violation of the ADEA. The arbitrators

in all of their cases dismissed the claims as untimely.

The remaining two Plaintiffs, Phillip Corbett and Brian

Flannery, did not try to arbitrate their claims.

Some former employees—almost all of whom are

represented by the same counsel as Plaintiffs—did not

sign the Agreement and instead filed timely charges of

discrimination with the EEOC. These former employees

brought a separate putative class action against IBM in

2018 (the “Rusis action”). See Rusis v. Int’l Bus. Machs.

Corp., 529 F. Supp. 3d 178, 188 (S.D.N.Y. 2021).

Plaintiffs tried to opt in to the Rusis action in 2019,

after their arbitration claims were dismissed as untimely. 2

See id. at 192. In 2020, the EEOC issued a report on other

former IBM employees’ charges finding “reasonable

cause to believe that [IBM] discriminated against [other

former IBM employees] on account of their age.” App’x

at App.121. In March 2021, the district court in the Rusis

action dismissed Plaintiffs from that case due to the “valid

and enforceable class and collective action waiver” in the

Agreement. 529 F. Supp. 3d at 193.

2. Two Plaintiffs, Brian Flannery and Deborah Kamienski, did

not try to opt in to the Rusis action.

Appendix A

B. Procedural History

After Plaintiffs were dismissed from the Rusis action,

they filed individual cases in the U.S. District Court for

the Southern District of New York, seeking a declaration

that the Timeliness and Confidentiality Provisions in

the Agreement are unenforceable. The district court

(Furman, J.) consolidated the individual cases.

After filing the complaint but before IBM answered

or moved to dismiss, Plaintiffs filed a motion for summary

judgment, attaching documents that Plaintiffs’ counsel had

obtained in other IBM employees’ confidential arbitration

proceedings. Plaintiffs filed under seal but requested

immediate unsealing of the confidential documents for

the admitted purpose of enabling Plaintiffs’ counsel

to use the documents in litigation against IBM. IBM

opposed Plaintiffs’ motion for summary judgment and

moved to dismiss under Federal Rule of Civil Procedure

12(b)(6). IBM argued that the claims of the twenty-four

Plaintiffs who arbitrated and lost should be dismissed as

untimely and that the Timeliness Provision is enforceable

under the FAA. IBM further argued that the motion for

summary judgment should be denied as moot. Plaintiffs

opposed IBM’s motion, arguing that the Timeliness

Provision is unenforceable because it does not include

the piggybacking rule, which permits plaintiffs who

fail to file an EEOC charge to “piggyback” off a timely

charge brought by another employee alleging the same

discrimination. Plaintiffs also moved for leave to amend

their complaints to add claims for fraudulent inducement.

Appendix A

The district court granted IBM’s motion to dismiss.

First, it declined to exercise jurisdiction over the claims

of the twenty-four Plaintiffs who had already arbitrated

because their claims were unripe under the Declaratory

Judgment Act (“DJA”). In re IBM Arb. Agreement Litig.,

No. 21-CV-6296, 2022 U.S. Dist. LEXIS 124991, 2022 WL

2752618, at *4-5 (S.D.N.Y. July 14, 2022). The “arbitration

proceedings definitively resolved” their claims, and “the

window to challenge those rulings, or the enforceability of

the provisions that governed them, has long since closed.”

2022 U.S. Dist. LEXIS 124991, [WL] at *5. The district

court also declined to exercise jurisdiction over Plaintiffs

Flannery’s and Corbett’s challenge to the Confidentiality

Provision because it was unripe. 2022 U.S. Dist. LEXIS

124991, [WL] at *6 (stating that the Confidentiality

Provision “will play a role in Flannery and Corbett’s

arbitration proceedings only if the arbitrator rules that

they have timely ADEA claims to arbitrate in the first

place,” and “there is no reason to believe an arbitrator

would conclude Flannery and Corbett have timely ADEA

claims”). This left only Flannery’s and Corbett’s challenge

to the Timeliness Provision.

Second, the district court concluded that the Timeliness

Provision is enforceable because the piggybacking rule is

not “a substantive, nonwaivable right under the ADEA.”

2022 U.S. Dist. LEXIS 124991, [WL] at *7. “Plaintiffs’

challenge to the Timeliness Provision on the ground

that it prevents them from effectively vindicating their

rights under the ADEA is without merit” because “the

timeline for filing an arbitration demand established by

the Timeliness Provision is the same 180- or 300-day

Appendix A

deadline provided by the ADEA itself.” 2022 U.S. Dist.

LEXIS 124991, [WL] at *9.

Finally, the district court denied Plaintiffs’ motion for

leave to amend to add a claim for fraudulent inducement

as futile because twenty-four Plaintiffs had waived their

claims by arbitrating and failing to raise a claim for

fraudulent inducement. See 2022 U.S. Dist. LEXIS 124991,

[WL] at *10. The district court denied Flannery’s and

Corbett’s motion for leave to amend because it would not

satisfy the heightened pleading standard under Federal

Rule of Civil Procedure 9(b). 2022 U.S. Dist. LEXIS

124991, [WL] at *11.

IBM also moved to seal Plaintiffs’ motion for summary

judgment and the attached confidential documents.

See In re IBM Arb. Agreement Litig., No. 21-CV-6296,

2022 U.S. Dist. LEXIS 137427, 2022 WL 3043220, at *1

(S.D.N.Y. Aug. 2, 2022). The district court granted IBM’s

motion to seal and denied Plaintiffs’ request to unseal the

documents. Id. It concluded that the materials were not

“judicial documents” because they “had no tendency—or,

for that matter, ability—to influence this Court’s ruling on

IBM’s motion.” 2022 U.S. Dist. LEXIS 137427, [WL] at *2

(cleaned up). The documents were “subject to only a weak

presumption of public access,” and any presumption of

public access was outweighed by “the FAA’s strong policy

in favor of enforcing arbitral confidentiality provisions.”

2022 U.S. Dist. LEXIS 137427, [WL] at *2-3. Plaintiffs

timely appealed. 3

3. On appeal, Plaintiffs moved to file certain materials under

seal while simultaneously moving to unseal the same documents.

Appendix A

II. DISCUSSION

Plaintiffs argue that (1) the Timeliness Provision

is unenforceable because it does not incorporate

the pigg ybacking rule, and (2) the district court

abused its discretion by granting IBM’s motion to seal

the confidential documents. We disagree. First, the

piggybacking rule does not apply to arbitration and, in

any case, it is not a substantive right under the ADEA.

Second, the presumption of public access to judicial

documents is outweighed here by the FAA’s strong policy

in favor of enforcing arbitral confidentiality provisions

and the impropriety of counsel’s attempt to evade the

Agreement by attaching confidential documents to a

premature motion for summary judgment. Finally, the

district court correctly declined to exercise jurisdiction

over the remaining claims and correctly denied Plaintiffs’

motion for leave to amend.

A. Timeliness Provision

The Timeliness Provision is enforceable. Plaintiffs

argue that “the time-period for filing contained in the

ADEA, to which the piggybacking rule is integral” is “a

substantive right that cannot be waived or truncated in

an arbitration agreement.” Appellants’ Br. at 36-37. This

is incorrect. The piggybacking rule has no application in

the arbitration context. In any event, the piggybacking

rule may be waived because it is not a substantive right

under the ADEA.

Appendix A

Legal Standards

The ADEA makes it “unlawful for an employer” to

“discriminate against any individual . . . because of such

individual’s age.” 29 U.S.C. § 623. It provides that:

(1) No civil action may be commenced by an

individual under this section until 60 days

after a charge alleging unlawful discrimination

has been filed with the Equal Employment

Opportunity Commission. Such a charge shall

be filed—

(A) within 180 days after the alleged

unlawful practice occurred; or

(B) in a case to which section 633(b)

of this title applies, within 300 days

after the alleged unlawful practice

occurred . . . .

Id. § 626(d).

Under this provision, an ADEA plaintiff must exhaust

administrative remedies by first filing an EEOC charge

within 300 days of the “alleged unlawful practice.”4 Id.

The plaintiff must then “file an EEOC charge at least 60

4. The 300-day deadline applies to “deferral states,” which are

states with their own age discrimination laws and age discrimination

remedial agencies. See Holowecki v. Fed. Express Corp., 440 F.3d

558, 562 (2d Cir. 2006). Most, if not all, Plaintiffs reside in deferral

states.

10a

Appendix A

days prior to initiating an ADEA suit in federal court.”

Holowecki, 440 F.3d at 562 (emphasis omitted).

The piggybacking rule is an exception to the ADEA’s

charge-filing requirement. See Tolliver v. Xerox Corp., 918

F.2d 1052, 1056 (2d Cir. 1990). It first came into use after

the enactment of the Civil Rights Act of 1964, when courts

applied the rule to class actions under Title VII. See Oatis

v. Crown Zellerbach Corp., 398 F.2d 496, 498-99 (5th Cir.

1968). “According to the piggybacking rule, where one

plaintiff has filed a timely EEOC complaint, other nonfiling plaintiffs may join in the action if their individual

claims arise out of similar discriminatory treatment in the

same time frame.” Holowecki, 440 F.3d at 564 (cleaned up).

We have held that the piggybacking rule, also known as

the “single-filing rule,” applies to ADEA actions. Tolliver,

918 F.2d at 1059-60. Importantly, the piggybacking rule

is not found in the ADEA or in Title VII. It is a judgemade exception to the statutory-filing requirements. See

Oatis, 398 F.2d at 498 (explaining it would be “wasteful” to

require Title VII class members to file individual charges);

Tolliver, 918 F.2d at 1057 (reasoning it would be “equally

appropriate” to apply the piggybacking rule to ADEA

actions because the “ADEA administrative procedure is

modeled on the Title VII procedure”). We explained that

the rule could “afford the agency the opportunity to ‘seek

to eliminate any alleged unlawful practice by informal

methods’” without requiring “repetitive ADEA charges.”

Tolliver, 918 F.2d at 1057 (quoting 29 U.S.C. § 626(d)).

The ADEA, as amended by the Older Workers Benefit

Protection Act (“OWBPA”), also provides that: “An

11a

Appendix A

individual may not waive any right or claim under this

chapter unless the waiver is knowing and voluntary.” 29

U.S.C. § 626(f)(1). The Supreme Court has “construed the

phrase ‘right or claim’ in § 626(f)(1) and one of its subparts

to mean ‘substantive right,’ which includes ‘federal

antidiscrimination rights’ and ‘the statutory right to be

free from workplace age discrimination,’ as distinguished

from procedural rights, like ‘the right to seek relief from

a court in the first instance.’” Estle v. Int’l Bus. Machs.

Corp., 23 F.4th 210, 214 (2d Cir. 2022) (quoting 14 Penn

Plaza LLC v. Pyett, 556 U.S. 247, 259, 265-66, 129 S. Ct.

1456, 173 L. Ed. 2d 398 (2009)).

Finally, the FAA states that arbitration agreements

“shall be valid, irrevocable, and enforceable, save upon

such grounds as exist at law or in equity for the revocation

of any contract or as otherwise provided.” 9 U.S.C.

§ 2. “This text reflects the overarching principle that

arbitration is a matter of contract.” Am. Express Co. v.

Italian Colors Rest., 570 U.S. 228, 233, 133 S. Ct. 2304,

186 L. Ed. 2d 417 (2013). As such, “courts must rigorously

enforce arbitration agreements according to their terms,

including . . . the rules under which that arbitration will

be conducted.” Id. (cleaned up). “Not only did Congress

require courts to respect and enforce agreements to

arbitrate; it also specifically directed them to respect

and enforce the parties’ chosen arbitration procedures.”

Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1621, 200 L.

Ed. 2d 889 (2018); see Stolt-Nielsen S.A. v. AnimalFeeds

Int’l Corp., 559 U.S. 662, 683, 130 S. Ct. 1758, 176 L. Ed.

2d 605 (2010) (“[P]arties are generally free to structure

their arbitration agreements as they see fit.” (internal

quotation marks omitted)).

12a

Appendix A

“We review the grant of a Rule 12(b)(6) motion to

dismiss de novo. We accept the factual allegations as

true and draw all reasonable inferences in favor of the

plaintiff.” Estle, 23 F.4th at 212-13.

Application

Plaintiffs argue that the Timeliness Provision is

unenforceable because it “waive[d] a substantive right

by abridging the time period to file and because it was

obtained without IBM providing OWBPA disclosures.”5

Appellants’ Br. at 27. Plaintiffs’ argument is meritless

and foreclosed by precedent.

First, the piggybacking rule does not apply to

arbitration. It is an exception to the ADEA’s administrativeexhaustion requirements. See Tolliver, 918 F.2d at 1057.

And the ADEA’s administrative-exhaustion process

expressly applies to “civil action[s].” 29 U.S.C. § 626(d)

(1). The judge-made piggybacking rule thus “has no clear

application in the arbitration context.” Smith v. Int’l Bus.

Machs. Corp., No. 22-11928, 2023 U.S. App. LEXIS 10957,

2023 WL 3244583, at *6 (11th Cir. May 4, 2023).

5. The district court correctly declined to exercise jurisdiction

over the claims brought by the twenty-four Plaintiffs who arbitrated

and lost. See In re IBM Arb. Agreement Litig., 2022 U.S. Dist. LEXIS

124991, 2022 WL 2752618, at *5. We agree that there is no “practical

likelihood” that Plaintiffs will be able to reopen their claims. See

Admiral Ins. Co. v. Niagara Transformer Corp., 57 F.4th 85, 92

(2d Cir. 2023) (emphasis omitted). Nonetheless, we have appellate

jurisdiction over the challenge to the Timeliness Provision brought

by Plaintiffs Flannery and Corbett.

13a

Appendix A

All that the piggybacking rule does is functionally

waive the administrative-exhaustion requirement—it

does not extend the 300-day deadline to file an EEOC

charge. See Holowecki, 440 F.3d at 564. The Timeliness

Provision clearly notes that the ADEA’s administrativeexhaustion requirement does not apply to Plaintiffs’

arbitrations. App’x at App.105 (stating that the “filing

of a charge or complaint with a government agency . . .

shall not substitute for or extend the time for submitting

a demand for arbitration”). And under the FAA, “courts

must rigorously enforce arbitration agreements according

to their terms, including . . . the rules under which that

arbitration will be conducted.” Am. Express Co., 570 U.S.

at 233 (cleaned up). Neither the EEOC’s charge-filing

process nor the piggybacking rule have any place in

Plaintiffs’ arbitrations.

Second, in any event, the piggybacking rule is

not a substantive right under the ADEA and is thus

waivable under the Agreement. The Supreme Court has

distinguished between substantive rights—such as the

right under the ADEA “to be free from workplace age

discrimination,” which may be waived only if such waiver is

knowing and voluntary—and procedural rights—such as

“the right to seek relief from a court in the first instance,”

which are waivable. 14 Penn Plaza, 556 U.S. at 265-66.

14 Penn Plaza held that the ability to file suit in court (as

opposed to arbitration) is procedural, not substantive.

See id. The Court explained that “the recognition that

arbitration procedures are more streamlined than federal

litigation is not a basis for finding the forum somehow

inadequate.” Id. at 269; see also Gilmer v. Interstate/

14a

Appendix A

Johnson Lane Corp., 500 U.S. 20, 31, 111 S. Ct. 1647, 114

L. Ed. 2d 26 (1991) (“Although [arbitration] procedures

might not be as extensive as in the federal courts, by

agreeing to arbitrate, a party ‘trades the procedures and

opportunity for review of the courtroom for the simplicity,

informality, and expedition of arbitration.’” (quoting

Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth,

Inc., 473 U.S. 614, 628, 105 S. Ct. 3346, 87 L. Ed. 2d 444

(1985))). Following 14 Penn Plaza, we recently held that

“[c]ollective action waivers . . . address procedural, not

substantive rights,” and thus may be waived. Estle, 23

F.4th at 212.

14 Penn Plaza forecloses Plaintiffs’ argument that

the piggybacking rule is a non-waivable substantive right

under the ADEA. The rule is judge-made and is not found

in the text of the ADEA. See 29 U.S.C. § 626(d). Moreover,

the piggybacking rule, at its core, is not about timeliness.

See Holowecki, 440 F.3d at 564 (“An individual who has

previously filed an EEOC charge cannot piggyback onto

someone else’s EEOC charge.”); Levy v. United States

GAO, 175 F.3d 254, 255 (2d Cir. 1999) (declining to apply

rule to plaintiffs who filed an untimely complaint in the

district court). As discussed above, it is an exception to the

ADEA’s administrative-exhaustion requirement and does

not apply to these arbitrations. It thus falls well outside

the scope of the substantive right protected by the ADEA

and may be waived.6

6. Nor have Plaintiffs shown that the Timeliness Provision

made “access to the forum impracticable.” Am. Express Co., 570

U.S. at 236. It gave Plaintiffs the same amount of time to file an

arbitration demand as they would have had to file an EEOC charge

15a

Appendix A

Plaintiffs argue that the ADEA’s timing provisions

“are part of the substantive law of the cause of action

created by the ADEA.” Appellants’ Br. at 34 (quoting

Thompson v. Fresh Products, LLC, 985 F.3d 509, 521

(6th Cir. 2021)). This argument is misplaced. Plaintiffs

cite Thompson, which did not involve an arbitration

agreement or the FAA. See 985 F.3d at 515. Neither did

Logan v. MGM Grand Detroit Casino, 939 F.3d 824 (6th

Cir. 2019), on which Thompson relied. See 939 F.3d at 839

(holding that a “contractually shortened limitation period,

outside of an arbitration agreement, is incompatible with

the grant of substantive rights and the elaborate pre-suit

enforcement mechanisms of Title VII” (emphasis added)).

For these reasons, the Timeliness Provision in the

Agreement is enforceable.

B. Motion to Unseal

The district court properly granted IBM’s motion to

seal. Plaintiffs argue that “a confidentiality provision . . .

is not a sufficient countervailing interest to override the

presumption of public access.” Appellants’ Br. at 63. We

disagree.

Legal Standards

“Judicial documents are subject at common law to

a potent and fundamental presumptive right of public

under the ADEA. Indeed, other former employees timely filed and

successfully arbitrated their claims.

16a

Appendix A

access that predates even the U.S. Constitution.” Mirlis

v. Greer, 952 F.3d 51, 58 (2d Cir. 2020). “The presumption

of access is based on the need for federal courts, although

independent—indeed, particularly because they are

independent—to have a measure of accountability and

for the public to have confidence in the administration of

justice.” United States v. Amodeo (“Amodeo II”), 71 F.3d

1044, 1048 (2d Cir. 1995).

“[A]s a threshold question, the court determines

whether the record at issue is a judicial document—a

document to which the presumption of public access

attaches.” Olson v. Major League Baseball, 29 F.4th 59,

87 (2d Cir. 2022) (cleaned up). If so, the court “must next

determine the particular weight of that presumption

of access for the record at issue.” Id. “Finally, once the

weight of the presumption has been assessed, the court is

required to balance competing considerations against it.”

Id. at 88 (internal quotation marks omitted). “Examples of

such countervailing values may include . . . the protection

of attorney-client privilege; the danger of impairing law

enforcement or judicial efficiency; and the privacy interest

of those who resist disclosure.” Brown v. Maxwell, 929

F.3d 41, 47 n.13 (2d Cir. 2019) (cleaned up).

“When reviewing a district court’s order to seal or

unseal a document, we examine the court’s factual findings

for clear error, its legal determinations de novo, and its

ultimate decision to seal or unseal for abuse of discretion.”

Olson, 29 F.4th at 87 (cleaned up).

17a

Appendix A

Application

The district court correctly granted IBM’s motion

to seal. The district court reasoned that the summary

judgment documents were “subject to only a weak

presumption of public access” because the court “did

not, and could not, consider these documents in resolving

IBM’s motion to dismiss.” In re IBM Arb. Agreement

Litig., 2022 U.S. Dist. LEXIS 137427, 2022 WL 3043220,

at *2 (emphasis omitted). “And on the other side of

the scale,” the FAA’s mandate requiring enforcement

of arbitration agreements “according to their terms”

“favor[s] maintaining these documents under seal or

in redacted form.” Id. (cleaned up). Protecting this

confidentiality interest is particularly important when

the stated objective of Plaintiffs’ motion to unseal is

to circumvent the Confidentiality Provision to assist

plaintiffs in other proceedings—including Plaintiffs’

counsel’s other clients. See, e.g., Reply Br. at 34 (“Plaintiffs

have filed this lawsuit to be able to use certain evidence

that has been used in other arbitrations in support of their

arbitrations.” (alterations incorporated)).

First, motions for summary judgment are ordinarily

judicial documents. See Lugosch v. Pyramid Co. of

Onondaga, 435 F.3d 110, 123 (2d Cir. 2006); Brown, 929

F.3d at 47. “[F]or a court filing to be classified as a ‘judicial

document,’ it ‘must be relevant to the performance of

the judicial function and useful in the judicial process.’”

Olson, 29 F.4th at 87 (quoting United States v. Amodeo

(“Amodeo I”), 44 F.3d 141, 145 (2d Cir. 1995)). The fact that

the district court did not reach the merits of Plaintiffs’

18a

Appendix A

motion does not change the analysis. Cf. Bernstein v.

Bernstein Litowitz Berger & Grossmann LLP, 814 F.3d

132, 140 (2d Cir. 2016) (“The fact that a suit is ultimately

settled without a judgment on the merits does not impair

the ‘judicial record’ status of pleadings.”); Lugosch, 435

F.3d at 121-23 (finding it was “error” for the district court

to wait “until it had ruled on the underlying summary

judgment motion” to apply the sealing analysis).

Even assuming the motion and attached materials in

this case were “judicial documents,” the presumption of

public access is weaker because the motion was denied

as moot. “[T]he weight to be given the presumption of

access must be governed by the role of the material at

issue in the exercise of Article III judicial power and the

resultant value of such information to those monitoring

the federal courts.” Olson, 29 F.4th at 87-88 (quoting

Amodeo II, 71 F.3d at 1049). “The locus of the inquiry is,

in essence, whether the document is presented to the court

to invoke its powers or affect its decisions.” Bernstein,

814 F.3d at 142 (internal quotation marks omitted). Here,

the presumption of access is weaker because the district

court dismissed the complaint on IBM’s Rule 12(b)(6)

motion and did not even reach the merits of Plaintiffs’

summary judgment motion, instead denying it as moot.

The confidential documents thus had no “role . . . in the

exercise of Article III judicial power.” Id.

The weaker presumption of public access in this

case is readily outweighed by the FAA’s strong policy

protecting the confidentiality of arbitral proceedings and

the impropriety of using a motion for summary judgment

19a

Appendix A

to evade the Agreement’s Confidentiality Provision. As

discussed supra at 12-13, “courts must rigorously enforce

arbitration agreements according to their terms.” Am.

Express Co., 570 U.S. at 233 (internal quotation marks

omitted). And the “Supreme Court [has] observed that,

without vigilance, courts’ files might become a vehicle for

improper purposes.” Brown, 929 F.3d at 47 (cleaned up).

We have explained that “courts should consider personal

motives . . . at the third, balancing step of the inquiry, in

connection with any asserted privacy interests, based on

an anticipated injury as a result of disclosure.” Mirlis,

952 F.3d at 62 (internal quotation marks and emphasis

omitted). Here, Plaintiffs initially sued to invalidate the

Confidentiality Provision, so denying IBM’s sealing request

“would be to grant Plaintiffs the relief they sought in the

first instance.” In re IBM Arb. Agreement Litig., 2022

U.S. Dist. LEXIS 137427, 2022 WL 3043220, at *2. The

district court correctly observed that allowing unsealing

under such circumstances would create a legal loophole

allowing parties to evade confidentiality agreements

simply by attaching documents to court filings. 2022

U.S. Dist. LEXIS 137427, [WL] at *3. Plaintiffs’ counsel

may not end-run the Confidentiality Provision by filing

protected materials and then invoking the presumption of

access to judicial documents. The district court correctly

sealed the documents.

C. Remaining Claims

Finally, we affirm the district court’s disposition of

Plaintiffs’ remaining claims. First, the district court did

not abuse its discretion in declining to exercise jurisdiction

20a

Appendix A

over Plaintiffs Flannery’s and Corbett’s challenge to

the Confidentiality Provision. Second, the district court

correctly denied Plaintiffs’ motion for leave to amend to

add a fraudulent inducement claim.

Ripeness

“The standard for ripeness in a declaratory judgment

action is that there is a substantial controversy, between

parties having adverse legal interests, of sufficient

immediacy and reality to warrant the issuance of a

declaratory judgment.” Duane Reade, Inc. v. St. Paul

Fire & Marine Ins. Co., 411 F.3d 384, 388 (2d Cir. 2005)

(internal quotation marks omitted). “We review a district

court’s decision of whether to exercise jurisdiction over

a declaratory judgment action deferentially, for abuse of

discretion.” Id.

Flannery’s and Corbett’s claim seeking a declaratory

judg ment that the Con f ident ia l ity P rov ision is

unconscionable is unripe. As discussed supra at 12-15, this

challenge to the Timeliness Provision is meritless. There is

no “practical likelihood” that an arbitrator would conclude

otherwise. Admiral Ins. Co. v. Niagara Transformer

Corp., 57 F.4th 85, 92 (2d Cir. 2023) (emphasis omitted);

see also Kurtz v. Verizon N.Y., Inc., 758 F.3d 506, 511 (2d

Cir. 2014) (“A claim is not ripe if it depends upon contingent

future events that may or may not occur as anticipated,

or indeed may not occur at all.”). As a result, Plaintiffs’

challenge to the Confidentiality Provision is unripe.

21a

Appendix A

Leave To Amend

“An amendment to a pleading is futile if the proposed

claim could not withstand a motion to dismiss pursuant

to [Federal Rule of Civil Procedure] 12(b)(6).” Lucente v.

Int’l Bus. Machs. Corp., 310 F.3d 243, 258 (2d Cir. 2002).

“Where the claims are premised on allegations of fraud,

the allegations must satisfy the heightened particularity

requirements of Rule 9(b) of the Federal Rules of Civil

Procedure.” In re Morgan Stanley Info. Fund Sec. Litig.,

592 F.3d 347, 358 (2d Cir. 2010) (internal quotation marks

omitted). Rule 9(b) provides that “[i]n alleging fraud

or mistake, a party must state with particularity the

circumstances constituting fraud or mistake.” Fed. R. Civ.

P. 9(b). “[I]n order to comply with Rule 9(b), the complaint

must: (1) specify the statements that the plaintiff contends

were fraudulent, (2) identify the speaker, (3) state where

and when the statements were made, and (4) explain why

the statements were fraudulent.” Lerner v. Fleet Bank,

N.A., 459 F.3d 273, 290 (2d Cir. 2006) (cleaned up). We

“review de novo a district court’s denial of a request for

leave to amend based on futility.” Glover v. Bausch &

Lomb Inc., 6 F.4th 229, 236 (2d Cir. 2021).

Plaintiffs’ proposed amended complaint fails to meet

Rule 9(b)’s heightened pleading standard. It alleges that

“IBM provided employees with template letters indicating

that the company was required to lay them off.” App’x

at App.563. It references “low-level managers” but does

not identify the speakers. See id. at App.564. It also

fails to identify when or where “IBM’s managers and

human resource professionals presented employees with

22a

Appendix A

inaccurate and/or misleading information.” Id. at App.565.

These deficient allegations cannot satisfy Rule 9(b), and

the district court correctly denied leave to amend.

III. CONCLUSION

We have considered all of Plaintiffs’ remaining

arguments and have found them to be without merit. For

the reasons set forth above, the judgment of the district

court is affirmed.7 Plaintiffs’ motion to unseal is denied

as moot.

7. The remaining appeals raising substantially similar issues

are resolved in summary orders issued simultaneously with this

opinion. See Chandler v. Int’l Bus. Machs. Corp., No. 22-1733; Lodi

v. Int’l Bus. Machs. Corp., No. 22-1737; Tavenner v. Int’l Bus. Machs.

Corp., No. 22-2318.

23a

Appendix

B OF THE UNITED

APPENDIX B — LODI

OPINION

STATES COURT OF APPEALS FOR THE SECOND

CIRCUIT, FILED AUGUST 4, 2023

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

22-1737

At a stated term of the United States Court of Appeals

for the Second Circuit, held at the Thurgood Marshall

United States Courthouse, 40 Foley Square, in the City

of New York, on the 4th day of August, two thousand

twenty-three.

PRESENT: ROSEMARY S. POOLER,

RICHARD C. WESLEY,

MICHAEL H. PARK,

Circuit Judges.

PATRICIA LODI,

Plaintiff-Appellant,

INTERNATIONAL BUSINESS

MACHINES CORPORATION,

Defendant-Appellee.

August 4, 2023, Decided

24a

Appendix B

Appeal from a judgment of the United States District

Court for the Southern District of New York (Koeltl, J.).

UPON DUE CONSIDERATION, IT IS HEREBY

ORDERED, ADJUDGED, AND DECREED that

the judgment of the district court is AFFIRMED and

Plaintiff’s motion to unseal is DENIED.

Plaintiff is a former employee of International Business

Machines Corporation (“IBM”), who sued to invalidate

provisions in the arbitration agreement she signed when she

was terminated. On appeal, Plaintiff raises substantially

the same issues as the plaintiffs in several related appeals.1

We affirm for substantially the same reasons stated by the

district court in its decision, see Lodi v. Int’l Bus. Machs.

Corp., No. 21-CV-6336, 2022 U.S. Dist. LEXIS 122082, 2022

WL 2669199 (S.D.N.Y. July 11, 2022), and for the reasons

stated in our opinion in the related appeal, In re IBM Arb.

Agreement Litig., No. 22-1728, 2023 U.S. App. LEXIS

20154 (2d Cir. Aug. 4, 2023).

We have considered all of Plaintiff’s arguments and

find them to be without merit. For the foregoing reasons,

the judgment of the district court is AFFIRMED.

Plaintiff’s motion to unseal is DENIED as moot.

FOR THE COURT:

Catherine O’Hagan Wolfe,

Clerk of Court

/s/

1. See In re IBM Arb. Agreement Litig. [*2] , No. 22-1728;

Chandler v. Int’l Bus. Machs. Corp., No. 22-1733; Tavenner v. Int’l

Bus. Machs. Corp., No. 22-2318.

25a

Appendix COPINION OF THE

APPENDIX C — TAVENNER

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT, FILED AUGUST 4, 2023

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

22-2318

At a stated term of the United States Court of Appeals

for the Second Circuit, held at the Thurgood Marshall

United States Courthouse, 40 Foley Square, in the City

of New York, on the 4th day of August, two thousand

twenty-three.

PRESENT: ROSEMARY S. POOLER,

RICHARD C. WESLEY,

MICHAEL H. PARK,

Circuit Judges.

DEBORAH TAVENNER,

Plaintiff-Appellant,

INTERNATIONAL BUSINESS

MACHINES CORPORATION,

Defendant-Appellee.

August 4, 2023, Decided

26a

Appendix C

Appeal from a judgment of the United States District

Court for the Southern District of New York (Karas, J.).

UPON DUE CONSIDERATION, IT IS HEREBY

ORDERED, ADJUDGED, AND DECREED that

the judgment of the district court is AFFIRMED and

Plaintiff’s motion to unseal is DENIED.

Plaintiff is a former employee of International

Business Machines Corporation (“IBM”), who sued to

invalidate two provisions in the arbitration agreement

she signed when she was terminated. On appeal, Plaintiff

raises substantially the same issues as the plaintiffs in

several related appeals.1 We affirm for substantially the

same reasons stated by the district court in its decision, see

Tavenner v. Int’l Bus. Machs. Corp., No. 21-CV-6345, 2022

U.S. Dist. LEXIS 172888, 2022 WL 4449215 (S.D.N.Y.

Sept. 23, 2022), and for the reasons stated in our opinion

in the related appeal, In re IBM Arb. Agreement Litig.,

No. 22-1728 (2d Cir. Aug. 4, 2023).

We have considered all of Plaintiff’s arguments and

find them to be without merit. For the foregoing reasons,

the judgment of the district court is AFFIRMED.

Plaintiff’s motion to unseal is DENIED as moot.

FOR THE COURT:

Catherine O’Hagan Wolfe,

Clerk of Court

/s/

1. See In re IBM Arb. Agreement Litig, No. 22-1728; Chandler

v. Int’l Bus. Machs. Corp., No. 22-1733; Lodi v. Int’l Bus. Machs.

Corp., No. 22-1737.

27a

Appendix D OPINION OF THE

APPENDIX D — CHANDLER

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT, FILED AUGUST 4, 2023

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

22-1733

At a stated term of the United States Court of Appeals

for the Second Circuit, held at the Thurgood Marshall

United States Courthouse, 40 Foley Square, in the City

of New York, on the 4th day of August, two thousand

twenty-three.

PRESENT: ROSEMARY S. POOLER,

RICHARD C. WESLEY,

MICHAEL H. PARK,

Circuit Judges.

WILLIAM CHANDLER,

Plaintiff-Appellant,

INTERNATIONAL BUSINESS

MACHINES CORPORATION,

Defendant-Appellee.

August 4, 2023, Decided

28a

Appendix D

Appeal from a judgment of the United States District

Court for the Southern District of New York (Koeltl, J.).

UPON DUE CONSIDERATION, IT IS HEREBY

ORDERED, ADJUDGED, AND DECREED that

the judgment of the district court is AFFIRMED and

Plaintiff’s motion to unseal is DENIED.

Plaintiff is a former employee of International

Business Machines Corporation (“IBM”), who sued to

invalidate two provisions in the arbitration agreement

he signed when he was terminated. On appeal, he raises

substantially the same issues as the plaintiffs in several

related appeals.1 We affirm for substantially the same

reasons stated by the district court in its decision, see

Chandler v. Int’l Bus. Machs. Corp., No. 21-CV-6319, 2022

U.S. Dist. LEXIS 118883, 2022 WL 2473340 (S.D.N.Y.

July 6, 2022), and for the reasons stated in our opinion in

the related appeal, In re IBM Arb. Agreement Litig., No.

22-1728 (2d Cir. Aug. 4, 2023).

We have considered all of Plaintiff’s remaining arguments

and find them to be without merit. For the foregoing reasons,

the judgment of the district court is AFFIRMED. Plaintiff’s

motion to unseal is DENIED as moot.

FOR THE COURT:

Catherine O’Hagan Wolfe,

Clerk of Court

/s/

1. See In re IBM Arb. Agreement Litig., No. 22-1728; Lodi v.

Int’l Bus. Machs. Corp., No. 22-1737; Tavenner v. Int’l Bus. Machs.

Corp., No. 22-2318.

29a

E OPINION AND

APPENDIX E —Appendix

IN RE IBM

ORDER OF THE UNITED STATES DISTRICT

COURT FOR THE SOUTHERN DISTRICT OF NEW

YORK, FILED JULY 14, 2022

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

21-CV-6296 (JMF)

IN RE: IBM ARBITRATION

AGREEMENT LITIGATION

July 14, 2022, Decided

July 14, 2022, Filed

OPINION AND ORDER

JESSE M. FURMAN, United States District Judge:

In these consolidated cases, twenty-six former

employees of International Business Machines Corporation

(“IBM”) seek to challenge two provisions of the arbitration

agreements that they signed prior to their termination.

Plaintiffs either sought to, or intend to, assert claims

under the Age Discrimination in Employment Act

(“ADEA”) against IBM in arbitration. When they filed

these cases, Plaintiffs did not dispute that they were

required to bring these claims in arbitration — and,

indeed, most of them had. See ECF No. 1 (“Compl.”), at

9-10; ECF No. 27 (“Pls.’ Mem.”), at 2; ECF No. 61 (“Pls.’

Opp’n”), at 16.1 Instead, through their Complaints, they

1. As discussed below, Plaintiffs have since taken a different

tack, moving to amend their Complaints to bring claims challenging

30a

Appendix E

seek a declaratory judgment that two provisions of their

arbitration agreements are unenforceable: a provision

that governs the timeliness of their arbitration claims (the

“Timeliness Provision”) and a confidentiality clause (the

“Confidentiality Provision”).

IBM now moves, pursuant to Rule 12(b)(6) of the

Federal Rules of Civil Procedure, to dismiss Plaintiffs’

claims. At the same time, Plaintiffs move, pursuant to

Rule 56 of the Federal Rules of Civil Procedure, for

summary judgment. Additionally, Plaintiffs move for leave

to amend their Complaints to add a claim for fraudulent

inducement, challenging the enforceability of the

arbitration agreements in their entirety. For the reasons

that follow, IBM’s motion to dismiss is GRANTED,

Plaintiffs’ motion for summary judgment is DENIED as

moot, and Plaintiffs’ motion for leave to amend is likewise

DENIED.

BACKGROUND

In considering a Rule 12(b)(6) motion, courts are limited

to the facts alleged in the complaint, which are presumed

to be true. See, e.g., Burch v. Pioneer Credit Recovery,

Inc., 551 F.3d 122, 124 (2d Cir. 2008) (per curiam). A court

may also consider documents “incorporated by reference”

into the complaint, DiFolco v. MSNBC Cable L.L.C., 622

F.3d 104, 111 (2d Cir. 2010); documents that are “integral”

to the complaint, id.; and “documents of which [the court]

the enforceability of their arbitration agreements. See ECF No. 83

(“Pls.’ Mot. to Amend Reply”), at 9. All citations to the record are to

filings in 21-CV-6296 (JMF), unless otherwise specified.

31a

Appendix E

may take judicial notice, including pleadings and prior

decisions in related lawsuits,” Gertskis v. U.S. E.E.O.C.,

No. 11-CV-5830 (JMF), 2013 U.S. Dist. LEXIS 39110, 2013

WL 1148924, at *1 (S.D.N.Y. Mar. 20, 2013), aff’d, 594 F.

App’x 719 (2d Cir. 2014) (summary order). Accordingly,

the following facts are drawn from the pleadings and the

aforementioned additional documents. 2

A. Pla i nti f fs’ Ter mi nations a nd A rbit r ation

Agreements

Plaintiffs are all former IBM employees who were

over the age of forty at the time of their terminations. See

Compl. ¶ 7. 3 They allege that they were laid off as a result

of a company-wide discriminatory scheme designed to

reduce the population of older workers to make way for a

new, younger generation of employees. Id. ¶¶ 8-9.4 IBM’s

“top management” allegedly implemented this scheme in

order to better compete with newer technology companies,

such as Google, Facebook (now Meta), Amazon, and others.

Id. ¶ 9. In 2020, following a multi-year investigation, the

2. Plaintiffs submitted evidence outside of the pleadings in

support of their motion for summary judgment. See ECF Nos. 29,

40. For the reasons discussed below, however, the Court does not

reach Plaintiffs’ motion and, thus, does not consider this evidence.

3. The complaints in each of the member cases consolidated

under No. 21-CV-6296 are materially identical, unless otherwise

noted.

4. The details of the alleged discriminatory scheme are

recounted in Rusis v. International Business Machines Corp., 529

F. Supp. 3d 178, 188-90 (S.D.N.Y. 2021), an opinion issued by Judge

Caproni in a related case, familiarity with which is presumed.

32a

Appendix E

Equal Employment Opportunity Commission (“EEOC”)

issued a determination that there was reasonable cause

to believe IBM had in fact discriminated against older

employees during the time Plaintiffs were laid off. Id. ¶ 10.

Upon termination, each Plaintiff signed an agreement

to waive almost all of his or her legal claims against IBM

in exchange for a modest severance. Id. ¶ 11. The waiver

did not cover ADEA claims, but each Plaintiff’s agreement

separately provided that such claims could be pursued

only through individual arbitration proceedings. Id. Two

provisions of the arbitration agreement (the “Arbitration

Agreement”) — the terms of which were identical for

all Plaintiffs — bear particular relevance here: the

Timeliness Provision and the Confidentiality Provision.

ECF No. 29-2, at 25-27 (“Arb. Agreement”), at 25-26. 5

The first provides:

To initiate arbitration, [the employee] must

submit a written demand for arbitration to the

IBM Arbitration Coordinator no later than the

expiration of the statute of limitations (deadline

for filing) that the law prescribes for the claim

that you are making or, if the claim is one which

must first be brought before a government

agency, no later than the deadline for the filing

of such a claim. If the demand for arbitration is

not timely submitted, the claim shall be deemed

waived.

5. The Court may consider the Arbitration Agreement for

the purposes of resolving IBM’s motion to dismiss because it is

“incorporated into the complaint by reference.” Kleinman v. Elan

Corp., PLC, 706 F.3d 145, 152 (2d Cir. 2013); see Compl. ¶¶ 12-14, 24.

33a

Appendix E

Arb. Agreement 26. Importantly, the provision further

specifies that “[t]he filing of a charge or complaint with a

government agency . . . shall not substitute for or extend

the time for submitting a demand for arbitration.” Id. The

Confidentiality Provision, meanwhile, states:

To protect the confidentiality of proprietary

information, trade secrets or other sensitive

information, the parties shall maintain the

confidential nature of the arbitration proceeding

and the award. The parties agree that any

information related to the proceeding, such

as documents produced, filings, w itness

statements or testimony, expert reports and

hearing transcripts is confidential information

which shall not be disclosed, except as may

be necessary to prepare for or conduct the

arbitration hearing on the merits, or except as

may be necessary in connection with a court

application for a preliminary remedy, a judicial

challenge to an award or its enforcement, or

unless otherwise required by law or judicial

decision by reason of this paragraph.

Id. at 27. The Arbitration Agreement also provides that

“[a]ny issue concerning” its “validity or enforceability

. . . shall be decided only by a court of competent

jurisdiction.” Id. at 25.

34a

Appendix E

B. The Arbitration Proceedings

Before filing suit here, twenty-four of the twenty-six

Plaintiffs (the “Post-Arbitration Plaintiffs”) — all but

Plaintiffs Brian Flannery and Phillip Corbett — sought

to pursue their ADEA claims in arbitration. Compl.

¶ 12; see Pls.’ Mem. 8; ECF No. 48 (“Def.’s Mem.”), at

4, n.2; see also No. 21-CV-6384, ECF No. 1 (“Flannery

Compl.”), ¶¶ 12, 16; No. 21-CV-6380, ECF No. 1 (“Corbett

Compl.”), ¶¶ 12, 16. In each case, the arbitrator dismissed

the Plaintiff’s claims as untimely. Pls.’ Mem. 8; see also

ECF Nos. 29-26 to 29-48. Specifically, the arbitrator

held that the Post-Arbitration Plaintiffs had failed to file

written arbitration demands within the time specified

by the Timeliness Provision. See Pls.’ Mem. 8; see, e.g.,

ECF No. 29-26, at 1. In each case, the arbitrator further

held that the Timeliness Provision bars application of the

“piggybacking rule,” which Plaintiffs had argued would

render their claims timely. See Pls.’ Mem. 8; see, e.g., ECF

No. 29-26, at 2-3. The judicially created piggybacking

rule is an exception to the ADEA’s EEOC charge-filing

requirement, which requires a plaintiff seeking to bring

an ADEA claim in court to file an EEOC charge within

180 or 300 days after the “alleged unlawful employment

practice occurred,” and then to wait “until 60 days after”

that charge is filed to sue. 29 U.S.C. § 626(d)(1).6 Pursuant

6. In addition to the deadline for filing an EEOC charge, the

ADEA “also imposes a 90-day deadline for the commencement of a

court action if the EEOC notifies the claimant that it has dismissed

her charge or has otherwise terminated the proceedings.” Francis

v. Elmsford Sch. Dist., 442 F.3d 123, 126 (2d Cir. 2006); see 29 U.S.C.

§ 626(e).

35a

Appendix E

to the piggybacking rule, a plaintiff who failed to file his or

her own EEOC charge within the 180- or 300-day deadline

can “piggyback” off of another person’s timely filed EEOC

charge that alleges “similar discriminatory treatment in

the same time frame.” Holowecki v. Fed. Exp. Corp., 440

F.3d 558, 564 (2d Cir. 2006), aff’d, 552 U.S. 389, 128 S. Ct.

1147, 170 L. Ed. 2d 10 (2008).

Notably, no Post-Arbitration Plaintiff filed a petition

to vacate his or her arbitral decision within the threemonth timeframe set forth in the Federal Arbitration

Act (“FAA”). 9 U.S.C. § 12; see Pls.’ Opp’n 16. The other

two Plaintiffs — Flannery and Corbett — had not yet

initiated arbitration proceedings as of the date they filed

their Complaints here. See Pls.’ Mem. 8; Flannery Compl.

¶¶ 12, 16; Corbett Compl. ¶¶ 12, 16.

C. The Rusis Action and Plaintiffs’ Individual Actions

Before filing their Complaints here, Plaintiffs first

sought to opt into a putative class action pending before

Judge Caproni, Rusis v. International Business Machines

Corp., No. 18-CV-8434.7 Rusis, which was filed in 2018,

involves the same underlying ADEA claims as those

Plaintiffs press here, but was brought by IBM employees

who had not signed the Arbitration Agreements at issue

here. See Rusis, 529 F. Supp. 3d at 188-90. In March 2021,

Judge Caproni dismissed the claims of Plaintiffs here on the

7. Plaintiffs clarified in briefing that the Complaints filed by

Plaintiffs Flannery and Deborah Kamienski “inadvertently state

incorrectly that they opted in to Rusis.” Pls.’ Mem. 3 n.4. The

clarification is immaterial to the pending motions.

36a

Appendix E

ground that the Arbitration Agreements they had signed

contained a class and collective action waiver that barred

them from opting into the Rusis putative class action.

Id. at 195-96. In a footnote, Judge Caproni expressed

“skepticism” with respect to Plaintiffs’ argument that the

Timeliness Provision in their Arbitration Agreements was

unenforceable because it purported to waive a substantive

right under the ADEA — namely, the piggybacking rule.

Id. at 192 n.4. Ultimately, however, Judge Caproni “d[id]

not reach the issue” given Plaintiffs’ intention to file

“individual actions involving the same issue.” Id.

Approximately four months after Judge Caproni’s

decision in Rusis, Plaintiffs brought these cases seeking

declaratory relief. See Compl. 9-10. In particular, Plaintiffs

seek a declaratory judgment that two provisions of

their arbitration agreements — the Timeliness and

Confidentiality Provisions — are unenforceable. See id. On

August 24, 2021, the Court consolidated the actions, while

clarifying that each action would retain its “separate”

identity. ECF No. 20 (quoting Hall v. Hall, 138 S. Ct. 1118,

1128-31, 200 L. Ed. 2d 399 (2018)). 8 Plaintiffs thereafter

moved for summary judgment, and IBM filed a motion to

8. The Court consolidated the following twenty-five member

cases under No. 21-CV-6296 on August 24, 2021: Nos. 21-CV-6296;

21-CV-6297; 21-CV-6308; 21-CV-6310; 21-CV-6312; 21-CV-6314;

21-CV-6320; 21-CV-6322; 21-CV-6323; 21-CV-6325; 21-CV-6326;

21-CV-6331; 21-CV-6332; 21-CV-6337; 21-CV-6340; 21-CV-6341;

21-CV-6344; 21-CV-6349; 21-CV-6351; 21-CV-6353; 21-CV-6355;

21-CV-6375; 21-CV-6377; 21-CV-6380; 21-CV-6384. See ECF No. 20.

On November 24, 2021, the Court added one additional action, No.

21-CV-6307. See ECF No. 57. In total, there are twenty-six member

cases in this action.

37a

Appendix E

dismiss. ECF Nos. 27, 47. Nearly a month after briefing

for those two motions was complete, Plaintiffs filed a

motion for leave to amend their Complaints in order to

add a class-based fraudulent inducement claim. See ECF

No. 79 (“Pls.’ Mot. to Amend Mem.”), at 1-2; ECF No. 79-1

(“PAC”). IBM opposed. ECF No. 80.

DISCUSSION

As noted, three motions are before the Court: (1) IBM’s

motion to dismiss the Complaints; (2) Plaintiffs’ motion for

summary judgment; and (3) Plaintiffs’ motion for leave to

amend. Before the Court turns to any of these motions,

however, it has an “independent obligation” to address the

threshold question of subject-matter jurisdiction. Arbaugh

v. Y&H Corp., 546 U.S. 500, 514, 126 S. Ct. 1235, 163 L. Ed.

2d 1097 (2006) (“[Courts] have an independent obligation

to determine whether subject-matter jurisdiction exists,

even in the absence of a challenge from any party.”); see,

e.g., Ashcroft v. Iqbal, 556 U.S. 662, 671, 129 S. Ct. 1937, 173

L. Ed. 2d 868 (2009) (“Subject-matter jurisdiction cannot

be forfeited or waived and should be considered when

fairly in doubt.”). To the extent that the Court concludes

that it has jurisdiction to do so, the Court will then turn

to the parties’ motions in turn.

A. Subject-Matter Jurisdiction

Plaintiffs here invoke the Court’s federal-question

jurisdiction based on the Declaratory Judgment Act

(“DJA”), 28 U.S.C. §§ 2201-02. See Compl. ¶ 5. Under

the DJA, a court “may declare the rights and other legal

38a

Appendix E

relations of any interested party seeking such declaration”

in “a case of actual controversy within its jurisdiction.”

28 U.S.C. § 2201. “The purpose of declaratory relief is

to relieve litigants from the ongoing or imminent harm

they may suffer when their rights vis-à-vis each other

are uncertain.” Parker v. Citizen’s Bank, N.A., No. 19CV-1454 (VEC), 2019 U.S. Dist. LEXIS 187306, 2019

WL 5569680, at *4 (S.D.N.Y. Oct. 29, 2019) (citing United

States v. Doherty, 786 F.2d 491, 498 (2d Cir. 1986)). It is

therefore a “prospective remedy intended to resolve or

mitigate disputes that may yield later litigation.” EFG

Bank AG, Cayman Branch v. AXA Equitable Life Ins.

Co., 309 F. Supp. 3d 89, 99 (S.D.N.Y. 2018).

Importantly, as relevant here, claims “in a declaratory

judgment action” are only “ripe[]” where “there is a

substantial controversy, between parties having adverse

legal interests, of sufficient immediacy and reality to

warrant the issuance of a declaratory judgment.” Duane

Reade, Inc. v. St. Paul Fire & Marine Ins. Co., 411 F.3d

384, 388 (2d Cir. 2005). “[A] touchstone to guide the

probe for sufficient immediacy and reality is whether the

declaratory relief sought relates to a dispute where the

alleged liability has already accrued or the threatened risk

occurred, or rather whether the feared legal consequence

remains a mere possibility.” Wilmington Tr., Nat’l Ass’n

v. Est. of McClendon, 287 F. Supp. 3d 353, 364 (S.D.N.Y.

2018).

Additionally, “[t]he DJA ‘confers a discretion on the

courts rather than an absolute right upon the litigant.’”

John Wiley & Sons, Inc. v. Visuals Unlimited, Inc.,

39a

Appendix E

No. 11-CV-5453 (CM), 2011 U.S. Dist. LEXIS 127635,

2011 WL 5245192, at *4 (S.D.N.Y. Nov. 2, 2011) (quoting

Wilton v. Seven Falls Co., 515 U.S. 277, 287, 115 S. Ct.

2137, 132 L. Ed. 2d 214 (1995)); see 28 U.S.C. § 2201

(“[Courts] may declare the rights and other legal relations

of any interested party seeking such declaration . . . .”

(emphasis added)). Indeed, “[c]ourts have consistently

interpreted [the] permissive language [of the DJA] as a

broad grant of discretion to district courts to refuse to

exercise jurisdiction over a declaratory action that they

would otherwise be empowered to hear.” Dow Jones &

Co. v. Harrods Ltd., 346 F.3d 357, 359 (2d Cir. 2003) (per

curiam). “[T]o decide whether to entertain an action for

declaratory judgment,” courts in this Circuit consider

“(1) whether the judgment will serve a useful purpose

in clarifying or settling the legal issues involved; and (2)

whether a judgment would finalize the controversy and

offer relief from uncertainty.” Duane Reade, Inc., 411

F.3d at 389.

Applying the foregoing standards, the Court first

concludes, as an exercise of its discretion, that it is not

appropriate to entertain jurisdiction over the PostArbitration Plaintiffs’ claims. That is because “there is

no current or impending controversy about the[ir] rights

or obligations [vis-à-vis IBM] for this Court to clarify.”

Parker, 2019 U.S. Dist. LEXIS 187306, 2019 WL 5569680,

at *3. As Plaintiffs themselves concede, each of the PostArbitration Plaintiffs already arbitrated their ADEA

claims, lost, and chose not to file any motion to vacate the

arbitral decision within the three-month deadline under

the FAA. See Compl. ¶ 12, 16; ECF Nos. 29-26 to 29-48;

40a

Appendix E

Pls.’ Opp’n 16; see also 9 U.S.C. § 12. Instead, they waited

nearly two (and in some cases more than two) years after

they received their arbitration decisions to initiate this

action for declaratory relief challenging the enforceability

of two provisions of their arbitration agreements. See ECF

Nos. 29-26 to 29-48.

In light of these circumstances, both factors that the

Second Circuit has instructed district courts to consider

weigh against exercising DJA-jurisdiction over the

Post-Arbitration Plaintiffs’ claims. There is no “useful

purpose” that a declaratory judgment would serve at this

point; nor is there any “uncertainty” in the parties’ legal

relations for the Court to resolve. Duane Reade, Inc., 411

F.3d at 389. To the contrary, the arbitration proceedings

definitively resolved the Post-Arbitration Plaintiffs’

ADEA claims, and the window to challenge those rulings,

or the enforceability of the provisions that governed them,

has long since closed. Duane Reade, Inc., 411 F.3d at

389; see also 9 U.S.C. § 12.9 The Court therefore declines

9. Plaintiffs argue that, although the deadline to seek vacatur

of the arbitration decisions has passed, they could nevertheless seek

“relief from judgment pursuant to [Federal Rule of Civil Procedure]

60” in arbitration “[s]hould th[e] Court determine that the timeliness

provision in the arbitration agreement is . . . unenforceable.” Pls.’

Opp’n 17. But, as noted, it has been nearly two (or more) years since

the Post-Arbitration Plaintiffs’ ADEA claims were dismissed in

arbitration, making it highly unlikely that any arbitrator would

in fact entertain any Rule 60(b) motion. See Fed. R. Civ. P. 60(c)

(“A motion under Rule 60(b) must be made within a reasonable

time — and for reasons (1), (2), and (3) no more than a year after

the entry of the judgment or order or the date of the proceeding.”).

Thus, Plaintiffs’ proposed Rule 60 workaround does not alter this

41a

Appendix E

to exercise jurisdiction to resolve the Post-Arbitration

Plaintiffs’ claims. See Duane Reade, Inc., 411 F.3d at 389;

Jenkins v. United States, 386 F.3d 415, 417-18 (2d Cir.

2004) (“[DJA actions] must have . . . some useful purpose

to be achieved in deciding them.”); see also, e.g., Parker,

2019 U.S. Dist. LEXIS 187306, 2019 WL 5569680, at *3, *5

(declining to exercise jurisdiction over a DJA claim where

the “[d]eclaratory relief [sought] . . . would not resolve any

ongoing or impending harm to [the p]laintiff vis-à-vis her

relationship with [the d]efendants” and “would not clarify

any uncertainty in the parties’ legal relations”); Dow Jones

& Co. v. Harrods, Ltd., 237 F. Supp. 2d 394, 439 (S.D.N.Y.

2002) (reaching the same result because, inter alia, the

“[c]ourt [wa]s not persuaded . . . the declaratory relief

[sought] would . . . serve a useful purpose in clarifying the

legal relations between the parties”), aff’d, 346 F.3d 357

(2d Cir. 2003). Thus, the claims of the Post-Arbitration

Plaintiffs must be, and are, dismissed.10

Court’s conclusion that a declaratory ruling on the enforceability

of the Timeliness and Confidentiality Provisions would be unlikely

to serve any “useful purpose” with respect to the Post-Arbitration

Plaintiffs. Duane Reade, Inc., 411 F.3d at 389. Moreover, Plaintiffs’

reliance on the DJA is little more than a transparent attempt to

“avoid the procedural requirements” and limitations associated with

motions to vacate arbitral awards. Parker, 2019 U.S. Dist. LEXIS

187306, 2019 WL 5569680, at *5; see also John Wiley & Sons, 2011

U.S. Dist. LEXIS 127635, 2011 WL 5245192, at *4. That is all the

more reason to be wary of exercising subject-matter jurisdiction in

these circumstances.

10. Separate and apart from the foregoing, the Supreme Court’s

recent decision in Badgerow v. Walters, 142 S. Ct. 1310, 212 L. Ed.

2d 355 (2022) — which was issued after the Court issued its August

24, 2022 Order regarding subject-matter jurisdiction, ECF No. 20,

42a

Appendix E

and after briefing in these cases was complete — casts doubt on the

Court’s jurisdiction over the Post-Arbitration Plaintiffs’ claims. In

brief, the Badgerow Court held that the “look-through” approach to

determining jurisdiction for motions to compel jurisdiction under

Section 4 of the FAA does not apply to motions to confirm or vacate

arbitral awards under Sections 9 and 10 of the FAA. Id. at 1314.

As such, the source of jurisdiction must appear on “the face of the

Section 9 or 10 application[]” — that is, it generally must show that

there is diversity jurisdiction or allege “that federal law (beyond

Section 9 or 10 itself) entitles the applicant to relief.” Id. at 1316-17.

Here, the DJA is the sole proffered basis for federal jurisdiction.

But the DJA does not confer jurisdiction on its own; instead, “when

determining declaratory judgment jurisdiction, [courts] often look to

the character of the threatened action. That is to say, they ask whether

a coercive action brought by the declaratory judgment defendant

. . . would necessarily present a federal question.” Medtronic, Inc.

v. Mirowski Fam. Ventures, LLC, 571 U.S. 191, 197, 134 S. Ct. 843,

187 L. Ed. 2d 703 (2014) (cleaned up). Assuming that the “threatened

action” with respect to the Post-Arbitration Plaintiffs’ claims would

be a motion to confirm an arbitration award under Section 9 (given

that those Plaintiffs have already arbitrated), then the Court could

not “look through” to the underlying ADEA claim for jurisdiction

per Badgerow, 142 S. Ct. at 1314. Instead, the federal question would

have to appear on the “face” of the threatened Section 9 action for

the Court to have jurisdiction over the Post-Arbitration Plaintiffs’

claims. Id. But Badgerow provides “no examples” of what it means

for a “federal question with respect to the award’s confirmation or

vacatur” to exist on the face of the petition. Bissonnette v. LePage

Bakeries Park St., LLC, 33 F.4th 650, 661 (2d Cir. 2022) (Jacobs, J.,

concurring). Ultimately, however, the Court need not, and does not,

resolve this thorny jurisdictional question because, for the reasons

discussed above, it concludes jurisdiction is lacking on other grounds.

See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 585, 119 S. Ct.

1563, 143 L. Ed. 2d 760 (1999) (“It is hardly novel for a federal court

to choose among threshold grounds for denying audience to a case

on the merits.”).

43a

Appendix E

Additionally, the Court concludes that it lacks

jurisdiction to adjudicate the remaining claims (those

of Plaintiffs Flannery and Corbett) regarding the

Confidentiality Provision because they are not yet — and

may never become — ripe. See Compl. 10, ¶ 2.11 As noted,

“[t]he standard for ripeness in a declaratory judgment

action is that there is a substantial controversy . . . of

sufficient immediacy and reality to warrant the issuance

of a declaratory judgment.” Duane Reade, Inc., 411 F.3d

at 388 (internal quotation marks omitted). To determine

whether a controversy is of “sufficient immediacy and

reality,” courts typically look to “whether the declaratory

relief sought relates to a dispute where the alleged liability

has already accrued or the threatened risk occurred, or

rather whether the feared legal consequence remains a

mere possibility, or even probability of some contingency

that may or may not come to pass.” Dow Jones & Co.,

Inc., 237 F. Supp. 2d at 406-07. The fact that “liability

may be contingent,” however, “does not necessarily defeat

jurisdiction of a declaratory judgment action.” Associated

Indem. Corp. v. Fairchild Indus., Inc., 961 F.2d 32, 35 (2d

Cir. 1992). “When liability is contingent,” a court should

“focus on ‘the practical likelihood that the contingencies

will occur.’” U.S. Dep’t of Treasury v. Off. Comm. of

Unsecured Creditors of Motors Liquidation Co., 475 B.R.

347, 358 (S.D.N.Y. 2012) (quoting Associated Indem. Corp.,

961 F.2d at 35).

11. The Court did not consider ripeness in its August 24,

2022 Order, in which the Court indicated that it was, at that point,

“satisfied . . . there is subject-matter jurisdiction given that the

underlying arbitrations involved claims under the [ADEA].” ECF

No. 20.

44a

Appendix E

Here — as IBM points out and Plaintiffs do not

dispute — the Confidentiality Provision will play a role

in Flannery and Corbett’s arbitration proceedings only

if the arbitrator rules that they have timely ADEA

claims to arbitrate in the first place. See Def.’s Mem. 2,

24; Pls.’ Opp’n 19-34 (not disputing this point). But there

is no “practical likelihood” that that contingency will

occur. Associated Indem. Corp., 961 F.2d at 35. That is

because, as explained below, there is no merit to Plaintiffs’

claim that the Timeliness Provision is unenforceable.

See Compl. 10, ¶ 1. It follows that there is no reason

to believe an arbitrator would conclude Flannery and

Corbett have timely ADEA claims. See Pls.’ Opp’n 26 n.16

(acknowledging the Post-Arbitration Plaintiffs’ ADEA

claims were all “dismissed as untimely” in arbitration

based on the Timeliness Provision); cf. Chandler v. Int’l

Bus. Machs. Corp., No. 21-CV-6319 (JGK), 2022 U.S. Dist.

LEXIS 118883, 2022 WL 2473340, at *7 & n.4 (S.D.N.Y.

July 6, 2022) (concluding, in a case involving a challenge to

the same two provisions of IBM’s arbitration agreement,

that the “plaintiff’s claim for declaratory relief with

respect to the Confidentiality Provision [was] . . . moot”

given the court’s holding that the Timeliness Provision

is enforceable). The net result is that the “controversy”

raised by Flannery and Corbett’s claims regarding the

Confidentiality Provision lacks “sufficient immediacy and

reality” to render it ripe for this Court’s review. Duane

Reade, Inc., 411 F.3d at 388. The Court must therefore

dismiss those claims without prejudice to renewal in the

unlikely event that the issue ever becomes ripe.

45a

Appendix E

B. IBM’s Motion to Dismiss Plaintiffs’ Challenge to

the Timeliness Provision

That leaves only the challenge of Plaintiffs Flannery

and Corbett to the enforceability of the Timeliness

Provision, which IBM moves to dismiss pursuant to

Rule 12(b)(6).12 It is well established that “arbitration

is a matter of contract.” Am. Exp. Co. v. Italian Colors

Rest., 570 U.S. 228, 233, 133 S. Ct. 2304, 186 L. Ed. 2d

417 (2013); see 9 U.S.C. § 2. Thus, “courts must rigorously

enforce arbitration agreements according to their terms,”

including “the rules under which that arbitration will be

conducted.” Id. (internal quotation marks omitted); accord

Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1621, 200 L. Ed.

2d 889 (2018). “By agreeing to arbitrate a statutory claim,”

however, “a party does not forgo the substantive rights

afforded by the statute; it only submits to their resolution

in an arbitral, rather than a judicial, forum.” Mitsubishi

Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S.

614, 628, 105 S. Ct. 3346, 87 L. Ed. 2d 444 (1985). Thus,

“a substantive waiver of federally protected civil rights”

in an arbitration agreement “will not be upheld.” 14

Penn Plaza LLC v. Pyett, 556 U.S. 247, 273, 129 S. Ct.

1456, 173 L. Ed. 2d 398 (2009) (citing Mitsubishi Motors,

473 U.S. at 637 & n.19). Federal courts will also decline

to enforce “[arbitration] agreements that prevent the

‘effective vindication’ of a federal statutory right.” Italian

Colors, 570 U.S. at 235; see also Ragone v. Atl. Video at

Manhattan Ctr., 595 F.3d 115, 125 (2d Cir. 2010) (“[A]

12. Throughout this Section, “Plaintiffs” refers to Plaintiffs

Flannery and Corbett.

46a

Appendix E

federal court will compel arbitration of a statutory claim

only if it is clear that ‘the prospective litigant effectively

may vindicate its statutory cause of action in the arbitral

forum.’” (quoting Mitsubishi Motors, 473 U.S. at 637)).

Plaintiffs challenge the enforceability of the Timeliness

Provision in their Arbitration Agreements on both

grounds. That is, they argue first that it is unenforceable

to the extent that it purports to waive the piggybacking

rule because that rule gives rise to a substantive right

under the ADEA. See Pls.’ Mem. 3, 11-21; Pls.’ Opp’n

7-15. Second, they contend that the “purported waiver

would impermissibly prevent the effective vindication of

Plaintiffs’ claims in arbitration.” Pls.’ Mem. 12. Neither

argument is persuasive.

The Piggybacking Rule Is Not a Substantive

Right for FAA Purposes

First, there is no merit to Plaintiffs’ contention

that the judge-made piggybacking rule gives rise to a

substantive, nonwaivable right under the ADEA. For

starters, Plaintiffs do not cite, nor has the Court found,

any authority to support the proposition that the ADEA

creates a substantive right to piggybacking in any context

— let alone specifically in the context of determining the

enforceability of an agreement to arbitrate. See Pls.’ Opp’n

7-15.13 Instead, Plaintiffs argue that “[t]he piggybacking

13. That is perhaps unsurprising. As the Supreme Court

has made clear, “courts [must] enforce agreements to arbitrate

according to their terms . . . unless the FAA’s mandate has been

‘overridden by a contrary congressional command.’” CompuCredit

47a

Appendix E

rule is part of . . . the ADEA’s limitations period” and

that the “ADEA’s limitations period is a substantive

right.” Pls.’ Opp’n 9, 12. But that argument is difficult,

if not impossible, to square with Supreme Court and

Second Circuit precedent. Indeed, whether or not the

piggybacking rule is properly considered part of the

ADEA’s limitations period — a question the Court need

not answer — Supreme Court precedent makes plain that

the substantive right protected from waiver under the

FAA is far narrower than Plaintiffs claim. As the Supreme

Court explained in 14 Penn Plaza LLC, the substantive

right conferred by the ADEA for FAA purposes is the

“right to be free from workplace age discrimination.”

556 U.S. at 265. Importantly, the Court “distinguished”

that right from “procedural [ones], like ‘the right to seek

relief from a court in the first instance.’” Estle v. Int’l Bus.

Machs. Corp., 23 F.4th 210, 214 (2d Cir. 2022) (quoting 14

Penn Plaza, 556 U.S. at 265). The ADEA’s limitations

period falls comfortably in the latter category; it is more

akin to the procedural “right to seek relief from a court

in the first instance” than it is to the substantive “right

to be free from workplace age discrimination.” 14 Penn

Plaza, 556 U.S. at 265.

That conclusion is bolstered by Second Circuit

precedent. In Vernon v. Cassadaga Valley Central

School District, 49 F.3d 886 (2d Cir. 1995), the Second

Circuit explained that substantive rights typically govern

Corp. v. Greenwood, 565 U.S. 95, 98, 132 S. Ct. 665, 181 L. Ed. 2d

586 (2012) (emphasis added) (quoting Shearson/American Express

Inc. v. McMahon, 482 U.S. 220, 226, 107 S. Ct. 2332, 96 L. Ed. 2d

185 (1987)). As noted, the piggybacking rule is judge-made.

48a

Appendix E

“primary conduct” — e.g., “the alleged discrimination”

— while procedural rights generally bear on “secondary

conduct” — e.g., “the filing of [a] suit.” Id. at 890. Applying

that reasoning, the court held that the ADEA statute of

limitations is a procedural, not substantive, right in the

context of determining whether the limitations period

could apply retroactively. Id. at 889-90; see also Spira v.

J.P. Morgan Chase & Co., 466 F. App’x 20, 22-23 (2d Cir.

2012) (“[L]imitations periods generally do not modify

underlying substantive rights.”). The Court sees no reason

to deviate from that conclusion here. Because the ADEA’s

limitations period governs “secondary conduct” — namely,

the time period for filing a suit under the ADEA — it

should not be considered a substantive, and therefore

categorically nonwaivable, right in the arbitration context.

Vernon, 49 F.3d at 890. Accordingly, the Court joins

Judge Koeltl in rejecting Plaintiff’s argument that the

“piggybacking rule” is a “substantive, non-waivable right

protected by the ADEA” because “[t]he substantive right

protected by the ADEA is the ‘statutory right to be free

from workplace discrimination.’” Chandler, 2022 U.S.

Dist. LEXIS 118883, 2022 WL 2473340, at *4 (quoting

14 Penn Plaza, 556 U.S. at 265); see also Lodi v. v. Int’l

Bus. Machs. Corp, No. 21-CV-6336 (JGK), 2022 U.S. Dist.

LEXIS 122082, 2022 WL 2669199, at *3 (S.D.N.Y. July

11, 2022); Rusis, 529 F. Supp. 3d at 192 n.4 (expressing

“skepticism,” but not addressing, Plaintiffs’ argument).

Plaintiffs raise two primary counterarguments,

neither of which is persuasive. First, Plaintiffs rely heavily

on the Sixth Circuit’s decision in Thompson v. Fresh

Products, LLC, 985 F.3d 509 (6th Cir. 2021). See Pls.’

49a

Appendix E

Mem. 15-16. There, the Sixth Circuit held that an employer

may not contractually shorten the ADEA limitations

period for filing civil actions because “the limitations

period[] in the . . . ADEA give[s] rise to substantive, nonwaivable rights.” Id. at 519-21. Importantly, however,

Thompson did not involve an agreement to arbitrate or

the piggybacking rule. The Sixth Circuit therefore had no

occasion to consider whether the same conclusion would

apply in the arbitration context or whether the ADEA

also confers a substantive right to piggybacking. See id.

What is more, the Thompson court relied extensively on

Logan v. MGM Grand Detroit Casino, 939 F.3d 824 (6th

Cir. 2019), in which the Sixth Circuit had concluded that

Title VII’s limitations period could not be contractually

shortened. In so holding, however, the Logan court

distinguished an earlier en banc decision upholding an

agreement to arbitrate that shortened the Title VII

statute of limitations period. Id. at 836-38 (citing Morrison

v. Cir. City Stores, 317 F.3d 646, 673 n.16 (6th Cir. 2003)

(en banc)). Indeed, Logan explicitly limited its holding to

“contractually shortened limitation period[s] . . . outside

of . . . arbitration agreement[s].” Id. at 839 (emphasis

added); see also id. at 836-38 (distinguishing Morrison

on the grounds that it involved unique considerations in

the “arbitration context”). If anything, therefore, Sixth

Circuit precedent undermines rather than supports

Plaintiffs’ position. See Chandler, 2022 U.S. Dist. LEXIS

118883, 2022 WL 2473340, at *6 (distinguishing Thompson

and Logan on similar grounds).14

14. Relatedly, Plaintiffs argue that the Court should “defer” to

the EEOC’s position in the amicus brief it submitted in Thompson.

See Pls.’ Mem. 16-17 & n.18. But putting aside whether such deference

50a

Appendix E

Second, Plaintiffs argue, in the alternative, that they

could not have waived “their statute of limitations rights

under the piggybacking rule by signing the arbitration

agreement” because IBM did not provide them with

disclosures required by the Older Workers Benefit

Protection Act (“OWBPA”), 29 U.S.C.§ 626(f). Pls.’ Mem.

19; see also Pls.’ Opp’n 3, 8. The OWBPA, which amended

the ADEA, does require an employer to make certain

disclosures to an employee before that employee may

“waive any right or claim” under the ADEA. 29 U.S.C.

§ 626(f)(1). But, as the Second Circuit has made clear,

“[t]he phrase ‘right or claim’ as used in § 626(f)(1) is limited

to substantive rights and does not include procedural

ones.” Estle, 23 F.4th at 214 (citing 14 Penn Plaza, 556

U.S. at 265-66). Thus, Plaintiffs’ reliance on the OWBPA

adds nothing. As discussed, the piggybacking rule does

not give rise to a substantive right under the ADEA. It

follows that the OWBPA’s disclosure requirements do not

apply to waivers of that rule. Cf. id. at 213-15 (holding

that “[a] collective-action waiver is . . . not a waiver of

any ‘right or claim’ under the ADEA that triggers the

requirements of 29 U.S.C. § 626(f)(1)” because “collective

would be warranted otherwise, the EEOC’s amicus brief did not

take any position on the question at issue here because, as noted,

Thompson did not involve an agreement to arbitrate or piggybacking.

See Thompson, EEOC Brief, 2020 WL 1160190, at *19-26 (6th

Cir. Mar. 2, 2020). Moreover, the EEOC’s argument relied almost

exclusively on the Sixth Circuit’s prior decision in Logan, which,

as discussed, acknowledged that a different conclusion would be

warranted in the arbitration context. See id. Thus, the EEOC’s

amicus brief does not change the landscape, let alone warrant

deference here. Notably, the EEOC declined the Court’s invitation

to submit an amicus in this case. See ECF Nos. 20, 51.

51a

Appendix E

action, like arbitration, is a procedural mechanism, not a

substantive right” (internal quotation marks omitted)).

In short, for the foregoing reasons, the Court finds no

support for Plaintiffs’ argument that the piggybacking

rule is a substantive, non-waivable right in this context.

The Timeliness Provision Does Not Prevent

Plaintiffs from Effectively Vindicating Their

Rights Under the ADEA

The Court’s conclusion that the piggybacking rule

is procedural, not substantive, for purposes of the

FAA does not mean that agreements to arbitrate may

establish prohibitively short filing deadlines for ADEA

claims. Instead, it means that, like other procedural

rules, the statute of limitations period may be modified

in arbitration proceedings provided that the modification

does not prevent the “effective vindication” of a plaintiff’s

substantive rights. Italian Colors, 570 U.S. at 235; see,

e.g., Chandler, 2022 U.S. Dist. LEXIS 118883, 2022 WL

2473340, at *4; cf. Ragone, 595 F.3d at 125-26 (noting

that, if an arbitration agreement shortened Title VII’s

limitations period from 300 to 90 days, it might raise

concerns under the effective-vindication doctrine). This

approach aptly balances the “strong federal policy

favoring arbitration” and courts’ associated duty to enforce

arbitration agreements according to their terms, on the

one hand, with the need to ensure that “the prospective

litigant effectively may vindicate its statutory cause of

action in the arbitral forum,” on the other. Ragone, 595

F.3d at 121, 125.

52a

Appendix E

Plaintiffs argue that, if the piggybacking rule is

procedural, the Timeliness Provision violates this limiting

principle. But that argument borders on frivolous.

“Plaintiffs do not identify any obstacle, let alone one

imposed by IBM, that prevented [them] from filing an

arbitration demand on their ADEA claims within the

180-or 300-day deadline established by the separation

agreements.” Rusis, 529 F. Supp. 3d at 194 n.8. And “[h]ad

[Plaintiffs] done so, . . . they could have received any relief

to which they were entitled in an individual arbitration,

as contemplated by IBM’s separation agreements.” Id.;

see also Smith v. Int’l Bus. Machs. Corp., No. 21-CV03856 (JPB), 2022 U.S. Dist. LEXIS 95934, 2022 WL

1720140, at *6 (N.D. Ga. May 27, 2022) (rejecting this same

argument on similar grounds). Notably, the timeline for

filing an arbitration demand established by the Timeliness

Provision is the same 180-or 300-day deadline provided

by the ADEA itself. See Arb. Agreement 25; 29 U.S.C.

§ 626(d)(1). Thus, to hold that Plaintiffs were prevented

by the Timeliness Provision from effectively vindicating

their rights under the ADEA would be to hold that no

plaintiff can effectively vindicate his or her rights under

the statute. That, of course, would be “patently absurd.”

Rusis, 529 F. Supp. 3d at 194 n.8. Accordingly, Plaintiffs’

challenge to the Timeliness Provision on the ground that

it prevents them from effectively vindicating their rights

under the ADEA is without merit. See, e.g., Chandler,

2022 U.S. Dist. LEXIS 118883, 2022 WL 2473340, at *4

(“[T]here can be no reasonable dispute that the Tim[eliness]

Provision afforded the plaintiff a ‘fair opportunity’ to

vindicate [his ADEA rights] in arbitration within an

entirely reasonable time frame.” (quoting Gilmer v.

53a

Appendix E

Interstate/Johnson Lane Corp., 500 U.S. 20, 31, 111 S. Ct.

1647, 114 L. Ed. 2d 26 (1991)).

***

In sum, because the Timeliness Provision did not

waive a substantive right under the ADEA and did not

prevent Plaintiffs from effectively vindicating any such

rights, Plaintiffs’ challenge to its enforceability fails as

a matter of law. Thus, Plaintiffs claim for declaratory

relief on these grounds must be, and is, dismissed. In

light of that determination, Plaintiffs’ motion for summary

judgment on that claim is also denied as moot. See, e.g.,

Chandler, 2022 U.S. Dist. LEXIS 118883, 2022 WL

2473340, at *8; Oparaji v. Mun. Credit Union, No. 19CV-4034 (JPC), 2021 U.S. Dist. LEXIS 111221, 2021 WL

2414859, at *6 (S.D.N.Y. June 14, 2021) (denying motion

for summary judgment as moot after granting motion to

dismiss the claim), aff’d, No. 21-1518-CV, 2022 U.S. App.

LEXIS 10225, 2022 WL 1122681 (2d Cir. Apr. 15, 2022)

(summary order).

C. Plaintiffs’ Motion for Leave to Amend

Finally, the Court turns to Plaintiffs’ motion for leave

to amend their Complaints to add a state-law fraudulent

inducement claim, which they seek to bring on a classwide basis. See Pls.’ Mot. to Amend Mem.; PAC 18-21.

More specifically, Plaintiffs seek to add allegations that

IBM fraudulently induced them to “sign IBM’s separation

agreement (containing the arbitration clause[)]” by (1)

“fraudulently and in bad faith represent[ing] to [Plaintiffs]

54a

Appendix E

that they were being laid off for legitimate business

reasons”; and (2) “misrepresenting to them that they could

only maintain their health benefits through COBRA by

signing the agreement.” PAC ¶¶ 46, 55. Based on these

allegations, Plaintiffs assert that “there w[ere] no valid

arbitration agreement[s] in the first place, meaning that

[Plaintiffs] c[an] still pursue their claims in court.” ECF

No. 83 (“Pls.’ Mot. to Amend Reply”), at 9; see also PAC

21, ¶ 1 (asking the Court to “find and declare the whole of

the arbitration provision in IBM’s Separation Agreement

. . . to be unenforceable and otherwise void”).

Rule 15 of the Federal Rules of Civil Procedure

provides that courts “should freely give leave” to amend

a complaint “when justice so requires.” Fed. R. Civ. P.

15(a) (2). Nevertheless, a court has discretion to deny a

motion to amend where “there is a good reason for it, such

as futility, bad faith, undue delay, or undue prejudice to

the opposing party.” Jin v. Metro. Life Ins. Co., 310 F.3d

84, 101 (2d Cir. 2002). “An amendment to a pleading is

futile if the proposed claim could not withstand a motion

to dismiss pursuant to [Rule] 12(b)(6).” Lucente v. Int’l

Bus. Machs. Corp., 310 F.3d 243, 258 (2d Cir. 2002); see

also Anderson News, L.L.C. v. Am. Media, Inc., 680 F.3d

162, 185 (2d Cir. 2012). Put differently, a proposed claim is

futile if, accepting the facts alleged by the party seeking

amendment as true and construing them in the light

most favorable to that party, a proposed claim does not

“plausibly give rise to an entitlement to relief.” Ashcroft,

556 U.S. at 679. The party opposing a motion to amend

bears the burden of establishing that amendment would

be futile. See, e.g., Ouedraogo v. A-1 Int’l Courier Serv.,

55a

Appendix E

Inc., No. 12-CV-5651 (AJN), 2013 U.S. Dist. LEXIS 96091,

2013 WL 3466810, at *6 (S.D.N.Y. July 8, 2013).

In this case, Plaintiffs’ proposed amendments are

futile. Beginning with the Post-Arbitration Plaintiffs,

their proposed fraudulent inducement claim would fail as

a matter of law because they waived any such challenge

to their arbitration agreements. “If a party willingly and

without reservation allows an issue to be submitted to

arbitration, he cannot await the outcome and then later

argue that the arbitrator lacked authority to decide the

matter.” Opals on Ice Lingerie v. Bodylines Inc., 320 F.3d

362, 368 (2d Cir. 2003) (quoting AGCO Corp. v. Anglin,

216 F.3d 589, 593 (7th Cir. 2000)); accord Sokolowski v.

Metro. Transp. Auth., 723 F.3d 187, 191 (2d Cir. 2013); see

also ConnTech Dev. Co. v. Univ. of Conn. Educ. Props.,

Inc., 102 F.3d 677, 685 (2d Cir. 1996) (“An objection to the

arbitrability of a claim must be made on a timely basis, or

it is waived.”). Moreover, “as a matter of federal law, any

doubts concerning the scope of arbitrable issues should

be resolved in favor of arbitration, whether the problem

at hand is . . . an allegation of waiver . . . or a like defense

to arbitrability.” Mitsubishi Motors, 473 U.S. at 626.

Applying these standards, courts regularly find that a

party has waived a challenge to an arbitration agreement

where the party initiated the arbitration demand and

participated in the arbitration proceedings without

objection. See, e.g., Time Warner Cable of New York City

LLC v. Int’l Bhd. of Elec. Workers, AFLCIO, Loc. Union

No. 3, 684 F. App’x 68, 71 (2d Cir. 2017) (summary order)

(finding waiver where the objecting party had “expressly

ask[ed] the arbitrator” to resolve the dispute, and had not

56a

Appendix E

objected “until 5 months after the arbitrator issued an

adverse interim award”); ConnTech Dev. Co., 102 F.3d at

685 (same where party had participated in over a month

of hearings before the arbitrator and had not asserted an

objection to arbitration until forty-one months after being

served with notice of the arbitration demand); Kumaran

v. ADM Inv. Servs., Inc., No. 20-CV-3873 (GHW) (SDA),

2021 U.S. Dist. LEXIS 106780, 2021 WL 2333645, at *4

(S.D.N.Y. June 7, 2021) (same where party had “initiat[ed]

the arbitration” and “participated[d] in arbitration for

at least a year and a half”), motion for reconsideration

denied, ECF No. 97, at 41-46 (S.D.N.Y Feb. 18, 2022);

Sands Bros. & Co. v. Zipper, No. 03-CV-7731 (VM),

2003 U.S. Dist. LEXIS 19165, 2003 WL 22439789, at *3

(S.D.N.Y. Oct. 27, 2003) (same where party had waited

until “just twenty-two days before the arbitration was

scheduled to begin, to object to the arbitration”).

This precedent forecloses the Post-Arbitration

Plaintiffs’ proposed fraudulent inducement claims.

As Plaintiffs themselves acknowledge, each PostArbitration Plaintiff affirmatively initiated arbitration

and actively participated in arbitration proceedings

until their claims were dismissed. See PAC ¶ 1, 7, 20,

23; see also Pls.’ Opp’n 26 n.16. And, critically, Plaintiffs

do not allege that they objected to the enforceability of

their arbitration agreements at any point during their

arbitration proceedings. See Pls.’ Mot. to Amend Reply

7-9 (responding to IBM’s waiver argument). To the

contrary: Plaintiffs themselves previously disclaimed any

attempt to challenge the enforceability of their arbitration

agreements, both in Rusis and in the instant cases. See

57a

Appendix E

529 F. Supp. 3d at 192 (“Plaintiffs do not dispute that [the

Arbitration Opt-Ins] must arbitrate their claims.” (quoting

Plaintiffs’ briefing)); Pls.’ Mem. 2 (“Plaintiffs have not

challenged the overall enforceability of IBM’s arbitration

agreement. They recognize that their ADEA claims are

to be pursued in arbitration.”). It was not until Plaintiffs

filed their motion for leave to amend — after IBM had

moved to dismiss — that they first raised any challenge

to the Arbitration Agreement as a whole. Compare Pls.’

Mem. 2, with Pls.’ Mot. to Amend Reply 9. Plaintiffs cannot

now — years after having received decisions in arbitration

proceedings that they themselves initiated, see ECF Nos.

29-26 to 29-48 — “argue that the arbitrator[s] lacked

authority to decide the matter.” Opals on Ice Lingerie,

320 F.3d at 368; see also, e.g., Time Warner Cable of New

York City LLC, 684 F. App’x at 71; ConnTech Dev. Co.,

102 F.3d at 685.

Plaintiffs’ sole counterargument on this score is

meritless. They argue that “[t]here can be no waiver

here, given the fact that the information that justified the

assertion of the fraudulent inducement claims became

known to Plaintiffs only after they had had their claims

dismissed in arbitration.” Pls.’ Mot. to Amend Reply 8.

But that argument does not withstand scrutiny. As noted,

the principal basis for Plaintiffs’ proposed fraudulent

inducement claims is that IBM “fraudulently and in bad

faith represented to its employees that they were being

laid off for legitimate business reasons” when, it is alleged,

IBM was systematically discriminating against older

workers. PAC ¶¶ 46-53. But these allegations were the

core of the very ADEA claims that the Post-Arbitration

58a

Appendix E

Plaintiffs pursued in arbitration. See PAC ¶¶ 16-20; see

also, e.g., ECF No. 29-7, Ex. A, ¶ 19 (“IBM has also

reduced its population of older workers by terminating

older employees for pretextual reasons.”). Thus, Plaintiffs’

contention that they were not aware of their fraudulent

inducement claims until after dismissal of those ADEA

claims — which were based on the very same conduct —

does not pass the laugh test. Pls.’ Mot. to Amend Reply 8.15

Conspicuously, Plaintiffs do not even attempt to argue that

they were unaware of a viable fraudulent inducement claim

based on misrepresentations regarding COBRA benefits

prior to the dismissal of their claims in arbitration. See

id. at 7-9. Accordingly, the Court concludes that the PostArbitration Plaintiffs’ proposed fraudulent inducement

claims would be futile.

The proposed fraudulent inducement claim of the

other two Plaintiffs, Flannery and Corbett, would likewise

fail to withstand a motion to dismiss, albeit for different

reasons. “To state a claim for fraudulent inducement under

New York law, a plaintiff must show: (1) a representation of

material fact, (2) which was untrue, (3) which was known

to be untrue or made with reckless disregard for the truth,

(4) which was offered to deceive another or induce him to

act, and (5) which that other party re

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