Recent Cases. Recent cases involving ADEA waivers include Xxxxxxxx v. IBM, 406 F.3d 500 (8th Cir. 2005) (ADEA waiver invalid because it was not written in a manner calculated to be understood by the employee); Xxxxx v. Capital One Services, 314 X. Xxxx. 2d 589 (E.D. Va. 2004) (former employees could seek relief for alleged waiver violations, but threats in the waiver agreement did not constitute adverse employment action for purposes of a retaliation claim); Xxxx x. Gaming Entertaining, LLC, 199 X. Xxxx. 2d 208 (D. Del. 2002) (ADEA release that stated employee ‘had been advised” to consult with an attorney before signing the release was insufficient to meet the OWBPA requirement that the employer advised the employee in writing to consult with an attorney before signing the release); Xxxxx x.
Recent Cases. A. Standard contract analysis applies to waiver under an arbitration agreement. A class of employees waived their right to a jury trial pursuant to a provision of their employer’s dispute resolution policy. The court held that the waiver did not have to be evaluated under a heightened “knowing and voluntary” standard. Instead, a standard contract analysis was applied because agreements subject to the Federal Arbitration Act are governed by contract principles. Caley v.
Recent Cases. X. Xxxxx Technology Ventures, XX x. Xxxxxxx, 526 S.W.3d 428 (Tex. 2017). This case involved the applicability of a forum selection clause in a shareholder agreement. The Texas Supreme Court began its analysis, noting: “Subject to public-policy constraints, forum- selection clauses are generally enforceable in Texas.”81 Minority shareholders brought suit against venture capital shareholders and officers and directors for dilution of their shares. The defendants responded with a motion to dismiss based on a forum selection clause that required “any dispute arising out of” the shareholder agreement to be brought in Delaware. The plaintiffs argued that their tort claims for breach of fiduciary duties did not arise out of the shareholder agreement. The trial court granted the motion to dismiss. The court of appeals reversed. The Texas Supreme Court held that the determination of whether the non-contractual claims fell within the scope of the forum selection clause depended upon “a ‘common-sense examination’ of the substantive factual allegations. Legal theories and causes of action are not controlling. Rather, we avoid ‘slavish adherence to a contract/tort distinction,’ because doing otherwise ‘would allow a litigant to avoid a forum-selection clause with artful pleading.’”82 The Court considered a “but for” test and a “same operative facts” test. Without stating exactly what the test was, the Court held that the forum selection clause did apply.83 The Court noted that the facts of the plaintiffs’ claims were “inextricably enmeshed” and “factually intertwined” with the shareholder agreement and that any other result would encourage “artful pleading.”84 Interestingly, the Court emphasized that the use of the term “dispute” rather than “claim” was significant because dispute is a broader term,85 leaving open the possibility that the plaintiff’s position might have been valid if the forum selection clause had stated “all claims arising out of the agreement.” However, the Court also held that the CEO and CFO, neither of whom had signed the shareholder agreement in an individual capacity, could not rely on the forum selection clause.86 80 Sec. 21.110 (“This subchapter does not prohibit or impair any agreement between two or more shareholders, or between the corporation and one or more of the corporation's shareholders, permitted by Title 1, this chapter, or other law.”). 81 Pinto Tech. Ventures, X.X. x. Xxxxxxx, 526 S.W.3d 428, 432 (Tex. 2017). 82 Id. at 437. 83 Id....
