Syverson

Under the Older Workers Benefit Protection Act (“OWBPA”), employees may not waive rights or claims arising under the Age Discrimination in Employment Act (“ADEA”) unless the waiver is “knowing and voluntary.” 29 U.S.C. § 626 (f)(1) (2000). To qualify as “knowing and voluntary,” á waiver included in an agreement between an employer and its employees must, among other things, be “written in a manner calculated to be understood” by the average employee eligible to participate in the agreement. Id. § 626(f)(1)(A). This appeal presents the question whether a waiver form used by International Business Machines Corp. (“IBM”) in connection with a severance benefit package meets that standard. We hold that it does not and was therefore not “knowing and voluntary.” Id. § 626(f)(1).

I.

In January 2001, IBM began a reduction in its workforce. As part of its workforce reduction plan, IBM offered each employee selected for termination severance pay and certain benefits in exchange for signing a document entitled “Microelectronics Resource Action (MERA) General Release and Covenant Not To Sue” (“MERA Agreement”). Along with the MERA Agreement, IBM issued each selected employee a lengthy…