Oubre v. Entergy Operations Inc. Page 2

Oubre v. Entergy Operations Inc. general information

Media for Oubre v. Entergy Operations Inc.

Audio Transcription for Oral Argument - November 12, 1997 in Oubre v. Entergy Operations Inc.

Barbara G. Haynie:

--And I believe that--

Anthony M. Kennedy:

There's a lot of talk on void and voidable, but this covers so many claims that it seems to me that's something that may be more of a problem for the respondent than for you.

Barbara G. Haynie:

--I believe it would be void to the ADEA claims.

I believe that--

David H. Souter:

As to them, then, the employer can, on day eight, say, I'm not going to pay anything insofar as it might be attributable... let's assume, keep the example, that he broke down the various considerations and said, with respect to this particular claim I'm not going to pay anything because it's void, because it violates the statute.

That would be legally proper, I take it, on your view.

Barbara G. Haynie:

--That's correct, Your Honor, that would be, and the plaintiff can go forward and pursue their age discrimination claim in court.

Antonin Scalia:

But in order to determine how much harm we're doing by saying these things are void from the outset I think we should be realistic and know that most of them do not assign a certain amount of money to the ADEA release and a certain amount of money to various other releases, and I doubt very much, when it's not broken out that way, whether you can say the contract is valid in part and invalid as to that one little item.

I mean, this is a standard question of severability.

I don't know how you can rip that contract apart, especially when the ADEA claim is a very major part of the consideration.

Do you know any other contract that's picked apart like that where it's just partially valid and we're going to enforce all the rest of it?

Barbara G. Haynie:

Well, I think Congress has clearly spoken here that if the waiver drafted by the employer does not comply with the Older Worker Benefit Protection Act--

Antonin Scalia:

Right.

Barbara G. Haynie:

--That waiver is nonenforceable--

Antonin Scalia:

Therefore that portion of the contract is bad, and I would say the whole contract is bad.

Barbara G. Haynie:

--because I do believe the other portions of that waiver remain valid.

If the employer does not break out the enumeration for each right to be waived, that's the argument to save the set-off for the remedial phase of the trial.

Antonin Scalia:

So all the employers who have these, have made these commitments can now simply stop paying money.

Barbara G. Haynie:

If they choose to stop paying money and have not enumerated out which moneys are going to be designated for which rights are being waived, then I believe the plaintiff has a simple right of breach of contract for all other rights that they had signed, if the money has stopped.

Antonin Scalia:

No, but a contract is... you can't pick apart a contract like that.

If the contract's void, it's void.

Barbara G. Haynie:

Well, I--

Antonin Scalia:

What do you mean, he's breached it?

How much money is he supposed to pay, two-thirds of the full contract, or... I mean, how do you decide how much?

Barbara G. Haynie:

--I--

Antonin Scalia:

The full amount?

Barbara G. Haynie:

--I agree, Your Honor, I believe that's one of the practical problems of this case, and that's why the tender back at the very beginning of a case to bar plaintiff to going into court is very prac... impractical.

Antonin Scalia:

What I am worried about is, you are destroying cause... you are destroying entitlements to these payments on the part of all older workers who have been terminated, including the majority of them who do not have any ADEA claims.

I'm not sure you're doing them a favor.

You're saying if the employer is confident enough that this worker doesn't have an ADEA claim he can just say, I'm sorry, we made a mistake.