2 plaintiff was never advised in writing to consult

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; (2) plaintiff was never advised in writing to consult with an attorney prior to signing the agreement, although plaintiff admits to consulting with an attorney regarding the severance agreement, in violation of § 626(f)(1)(E) ; (3) plaintiff was given only five days to consider the agreement instead of the required twenty-one days in violation of § 626(f)(1)(F)(i) ; and (4) plaintiff was not given seven days to revoke the agreement in violation of § 626(f)(1)(G) . Defendants next argue that if the waiver does not comply with OWBPA, Armstrong is still entitled to reimbursement of the consideration it paid for the waiver, under the tender-ratification theory. Defendants' argument is based upon Grillet v. Sears, Roebuck & Co., 927 F.2d 217 (5th Cir.1991) , and O'Shea v. Commercial Credit Corp., 930 F.2d 358 (4th Cir.1991) . . . . The Sixth Circuit has yet to rule on the issue of whether a tender requirement exists before one can proceed with a lawsuit under ADEA, i.e., whether the plaintiff has ratified the release by retaining the benefits received. The Fourth and Fifth Circuits have looked at the issue and have concluded that a tender requirement does exist. See Grillet, 927 F.2d 217; O'Shea, 930 F.2d 358 . However, in Forbus v. Sears, Roebuck & Co., 958 F.2d 1036 (11th Cir.1992) , the Eleventh Circuit decided that a tender requirement
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Spring 2017 LER 590-E: GOVERNMENT REGULATION II 96 | P a g e does not exist. Using the rationale of Hogue by analogy, the Forbus court concluded, “ADEA plaintiffs are not required to tender the consideration received for releases as a condition prerequisite to challenging those releases in court, and that the [plaintiffs’] retention of their severance benefits during the pendency of this lawsuit does not constitute ratification of those releases.” Id. at 1041. See also, Isaacs v. Caterpillar, Inc., 765 F.Supp. 1359 (C.D.Ill.1991) . This Court finds that a tender requirement is not consistent with ADEA since it would deter meritorious challenges to releases in ADEA claims. Therefore, plaintiff is not required to tender benefits back to defendants before he can proceed with a lawsuit under ADEA, and his retention of severance benefits during the pendency of this suit does not constitute ratification of the release. Nevertheless, any benefits paid by defendants shall be set off from any damage award received by plaintiff. See Hogue, 390 U.S. at 518, 88 S.Ct. at 1152; Forbus, 958 F.2d at 1041; Oberg v. Allied Van Lines, Inc., 1992 WL 211506, 1992 U.S.Dist. LEXIS 11208 (N.D.Ill.1992) . The Court now turns its attention to defendants’ motion to dismiss plaintiff’s state law claims pursuant to Fed.R.Civ.P. 12(b)(6) or 56 . Again, the Court will construe the motion to dismiss as one for summary judgment pursuant to Rule 56 since defendants have attached an affidavit and other documents. Defendants contend that plaintiff's state law claims must be dismissed because he signed a valid waiver. A valid release is an absolute bar to a later action on any claim encompassed within the release, unless the release was obtained by fraud.
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