     10-1771-cv
     Ridinger v. Dow Jones & Co.


 1                              UNITED STATES COURT OF APPEALS

 2                                    FOR THE SECOND CIRCUIT

 3                                                 ------

 4                                          August Term, 2010

 5   (Argued: November 18, 2010                                                Decided: July 11, 2011)

 6                                        Docket No. 10-1771-cv

 7   _________________________________________________________

 8   THOMAS RIDINGER,

 9                                                 Plaintiff-Appellant,

10                                        - v. -

11   DOW JONES & COMPANY INC.,

12                                       Defendant-Appellee.
13   _________________________________________________________

14   Before: KEARSE, McLAUGHLIN, and LIVINGSTON, Circuit Judges.

15                 Appeal from a judgment of the United States District Court for the Southern District

16   of New York, Frank Maas, Magistrate Judge, summarily dismissing age discrimination complaint as

17   barred by separation agreement entered into by plaintiff in connection with the termination of his

18   employment. See 717 F.Supp.2d 369 (2010).

19                 Affirmed.

20                                        JONATHAN BOBROW ALTSCHULER, New York,
21                                             New York, submitted a brief for Plaintiff-
22                                             Appellant.

23                                        KEVIN G. CHAPMAN, Princeton, New Jersey, for
 1                                         Defendant-Appellee.

 2   KEARSE, Circuit Judge:

 3                  Plaintiff Thomas Ridinger appeals from a judgment of the United States District Court

 4   for the Southern District of New York, Frank Maas, Magistrate Judge, dismissing his complaint

 5   against his former employer, defendant Dow Jones & Company Inc. ("Dow Jones") seeking monetary

 6   and equitable relief for alleged age discrimination in violation of the Age Discrimination in

 7   Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and state law. The magistrate judge, before

 8   whom the parties had consented to proceed for all purposes, granted summary judgment dismissing

 9   the complaint on the basis of a separation agreement entered into by Ridinger and Dow Jones in

10   connection with the termination of his employment, in which Ridinger agreed to waive and release

11   all claims, expressly including claims under the ADEA, that he might have against Dow Jones through

12   the date of the agreement. On appeal, Ridinger contends principally that the separation agreement

13   is unenforceable, arguing that its provisions do not comply with requirements of the Older Workers

14   Benefit Protection Act ("OWBPA"), see 29 U.S.C. § 626(f), and applicable Equal Employment

15   Opportunity Commission ("EEOC") regulations, or at least that there were genuine issues of material

16   fact as to whether the separation agreement met those requirements. For the reasons that follow, we

17   reject his contentions and affirm the judgment of the district court.




                                                       2
 1                                          I. BACKGROUND



 2                  We describe the record in the light most favorable to Ridinger as the party against

 3   whom summary judgment was granted, drawing all reasonable inferences in his favor. The following

 4   facts are undisputed. Ridinger was first employed by Dow Jones in 2001. In December 2007, when

 5   he was a 62-year-old photo editor at Dow Jones's SmartMoney magazine, his employment was

 6   terminated. Ridinger was granted a severance package that included 20 weeks' salary and other

 7   benefits, in exchange for which he signed a Separation Agreement and General Release ("Separation

 8   Agreement" or "Agreement"). Ridinger received all of the benefits promised to him in the

 9   Agreement.



10   A. The Separation Agreement and Ridinger's Complaint

11                  Ridinger commenced the present action against Dow Jones in 2009 for alleged

12   violation of the ADEA, asserting that although Dow Jones had informed him that the reason for his

13   termination was that his position was being eliminated, that explanation was a pretext for age

14   discrimination, as his position remained extant and was filled by a younger employee. Dow Jones

15   moved to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b) and 12(d) on the ground that this

16   action is barred by Ridinger's voluntary execution of the Separation Agreement, in which he waived

17   and released his present claims.

18                  The Separation Agreement, which was attached to the Dow Jones motion, defined

19   Ridinger as "Employee" and Dow Jones as "the Company"; its most relevant terms are set out in ¶ 4,

20   entitled "Waiver of claims against Employer," which provides in part as follows:


                                                     3
 1                          (a) Employee, in exchange for the payments and other consideration
 2                  embodied in this Agreement, waives, releases and forever discharges the
 3                  Company . . . from all claims, causes of action, [or] lawsuits . . . which
 4                  Employee may now or hereafter have against the Company from the beginning
 5                  of time through the date of this Agreement, including but not limited to: (i)
 6                  any claim or cause of action arising under Title VII of the Civil Rights Act of
 7                  1964, as amended, the Age Discrimination in Employment Act (the "ADEA"),
 8                  . . . and any other common law, federal, state or local law prohibiting
 9                  discrimination or limiting an employer's right to terminate employees . . . .
10                  Nothing in this Agreement shall limit or restrict Manager's [sic] right
11                  under the ADEA to challenge the validity of this Agreement in a court of
12                  law. This waiver and release does not apply to any claim that may arise
13                  under the ADEA after the date that Employee signs this Agreement.

14                           (b) Employee warrants that he has not filed, and agrees that he will not
15                  file or cause to be filed, any action, suit, or claim with any federal, state or
16                  local court relating to any claim within the scope of this paragraph 4, unless
17                  such a covenant not to sue is invalid under applicable law, in which case this
18                  sub-paragraph (b) shall be stricken from this Agreement, but all other
19                  provisions shall remain in full force.

20   (Separation Agreement ¶¶ 4(a) and (b) (emphasis in original).) Subparagraph (d), entitled "Limitation

21   on Promise Not to Sue," provides in pertinent part that

22                  [n]otwithstanding the agreements and obligations contained in paragraph[]
23                  4(b) . . . above, Employee understands that he retains the right to file charges
24                  with a government agency and to participate in an investigation or litigation
25                  initiated by a government agency, without penalty or obligation to the
26                  Company under this Agreement. Employee further understands that he retains
27                  the right to bring a legal action to enforce the terms of this Agreement or to
28                  challenge the validity of this Agreement without penalty or obligation to the
29                  Company under this Agreement (except that the benefits to Employee provided
30                  in this Agreement may not apply if the Agreement is deemed to be invalid).
31                  Employee further understands that, under the law, the obligations to repay
32                  money received and to pay the Company's damages and costs provided for in
33                  paragraph 4(b) in the event that Employee breaches his promise not to file a
34                  suit over released claims do not apply to claims under the ADEA. Therefore,
35                  the financial obligations of paragraph 4(b) would not apply to a suit filed
36                  solely under the ADEA, but Employee nevertheless understands that the
37                  waivers and releases contained in paragraph 4(a) still apply to ADEA claims
38                  and that he has waived all ADEA claims as part of this Agreement and that in
39                  any suit brought under the ADEA, Employee would not be entitled to any
40                  damages or other relief unless this Agreement and the waivers contained in it

                                                       4
 1                   were deemed to be unlawful or otherwise invalid.

 2   (Id. ¶ 4(d).)



 3   B. The Decision of the District Court

 4                   Pursuant to Rule 12(d), the district court treated Dow Jones's motion to dismiss as one

 5   for summary judgment because it relied on matters outside the complaint, to wit, the Separation

 6   Agreement. Ridinger submitted a memorandum of law in opposition to Dow Jones's motion but did

 7   not submit an affidavit or any factual matter. Citing principally Thomforde v. IBM, 406 F.3d 500 (8th

 8   Cir. 2005) ("Thomforde"), and Syverson v. IBM, 472 F.3d 1072 (9th Cir. 2007) ("Syverson"),

 9   Ridinger argued that

10                   [w]hile it is true that Mr. Ridinger executed the document attached to the
11                   moving papers, the courts and EEOC have consistently taken the position that
12                   the language in the waiver part of those agreements do not in this case waive
13                   Mr. Ridinger's right to commence the instant action.

14   (Plaintiff's Brief in Opposition to Motion To Dismiss Based on Waiver of Claims, dated September

15   30, 2009 ("Ridinger Mem."), at 4.) Ridinger cited an online EEOC "pamphlet" stating that waivers

16   of ADEA claims in severance agreements, in order to be enforceable, must be "'written in a manner

17   calculated to be understood.'" (Ridinger Mem. at 4 (quoting EEOC, UNDERSTANDING WAIVERS

18   OF DISCRIMINATION CLAIMS IN EMPLOYEE SEVERANCE AGREEMENTS at ¶ IV.6.).) See

19   http://www.eeoc.gov/policy/docs/qanda_ severance-agreements.html (last visited May 31, 2011).

20   With respect to the Separation Agreement in the present case, Ridinger's memorandum suggested that

21   the relevant provisions were unduly lengthy (see, e.g., Ridinger Mem. at 3 ("Sub-section (a) contains

22   25 lines and over 300 words"); id. ("Sub-section (b) contains 11 lines")), and were confusing because

23                   in paragraph 4 of the Dow Jones Separation Agreement and General Release

                                                       5
 1                  captioned Waiver of Claims against Employer there is an inconsistency. In
 2                  sub-paragraph (a) the employee, in this case, Mr. Ridinger, waives his right to
 3                  sue and then in bold face the Agreement states that the waiver and release does
 4                  not apply to any claim that may arise under the ADEA after the employee
 5                  signs the Agreement. There are similar instances in sub-paragraphs b and d.

 6   (Ridinger Mem. at 5.) Ridinger did not identify the "similar instances" of alleged inconsistency in

 7   ¶¶ 4(b) and 4(d).

 8                  In a Memorandum Decision and Order dated April 13, 2010, published at 717

 9   F.Supp.2d 369, the district court rejected Ridinger's arguments and granted the motion to dismiss.

10   The district court noted that the separation agreements dealt with by the courts in Thomforde and

11   Syverson had used technical legal terms that were not easily understood or parsed by a layperson, and

12   in combinations that could easily be misunderstood, in that they "required an employee to release all

13   ADEA claims, but also said that the employee's covenant not to sue did not apply to actions 'based

14   solely under the ADEA.' Syverson, 472 F.3d at 1082; Thomforde, 406 F.3d at 502." 717 F.Supp.2d

15   at 371. Thus, the district court noted, the Thomforde and Syverson courts concluded that a lay

16   employee, without a clear understanding of the difference between a release and a covenant not to sue,

17   might well believe that the agreement left him free to bring an action against the employer under the

18   ADEA.

19                  The district court found the language of the Separation Agreement to be "a far cry"

20   from the language challenged in Thomforde and Syverson, noting that the Agreement "clearly states

21   that Ridinger's waiver extends to ADEA claims, but that he retains the right to challenge the validity

22   of the Agreement containing the waiver." 717 F.Supp.2d at 373. The court concluded that the

23   Agreement here "accurately sets forth Ridinger's contractual and statutory rights." Id.

24                  In addition, having noted Ridinger's claim that there was "an inconsistency in the


                                                       6
 1   Agreement between the waiver of his right to sue and the subsequent language indicating that his

 2   release 'does not apply to any claim that may arise under the ADEA after the employee signs the

3    Agreement,'" id. (quoting Ridinger Mem. at 5), the court found no inconsistency, stating that

4                     the OWBPA expressly requires, as one of the eight requirements for an
5                     effective waiver, that an employee "not waive rights or claims that may arise
6                     after the date the waiver is executed." . . . Language that tracks the OWBPA
7                     obviously cannot be the basis for a claim that the Agreement is unenforceable.

 8   717 F.Supp.2d at 373 (quoting 29 U.S.C. § 626(f)(1)(C).). The district court concluded that the

 9   Separation Agreement

10                    adequately conveys the limitations that Ridinger accepted in exchange for
11                    enhanced severance pay. There also is no indication that any of the
12                    undertakings set forth in the Agreement were couched in terms too
13                    complicated for Ridinger to understand.

14   717 F.Supp.2d at 374.

15                    The court also noted that--although not mentioned by Ridinger in his opposition to

16   Dow Jones's motion--the Agreement contains an "apparent word processing error," 717 F.Supp.2d

17   at 373, in providing that nothing limits or restricts the right of the "'Manager,'" a term not defined in

18   the Agreement, to challenge the validity of the Agreement, id. at 372. The court found this flaw

19   inconsequential because

20                    the Agreement elsewhere makes clear that the "Employee . . . retains the right
21                    to bring a legal action to . . . challenge the validity of th[e] Agreement . . .
22                    (except that the benefits to Employee provided in th[e] Agreement may not
23                    apply if the Agreement is deemed to be invalid)." [Separation Agreement
24                    ¶ 4(d).] Accordingly, even if Ridinger thought that the term "Manager"
25                    referred to Dow Jones, the Agreement correctly informed him of his rights.
26                    Moreover, if Ridinger interpreted the term "Manager" to refer to himself, the
27                    Agreement twice stated the applicable law correctly. This apparent word
28                    processing error therefore does not affect the enforceability of the Agreement.

29   Id. at 372-73.


                                                         7
 1                   Judgment was entered dismissing the complaint, and this appeal followed.



 2                                            II. DISCUSSION



 3                   On appeal, Ridinger contends primarily that the Separation Agreement is

 4   unenforceable because it does not comply with the OWBPA requirement that it be written in a manner

 5   calculated to be understood. He also contends that the Agreement is unenforceable because it failed

 6   to advise him to consult an attorney prior to signing and that there exist disputed issues of fact that

 7   should have precluded the grant of summary judgment. For the reasons that follow, we find no basis

 8   for reversal.



 9   A. The OWBPA

10                   The ADEA, enacted in 1967, generally forbids an employer "to fail or refuse to hire

11   or to discharge any individual or otherwise discriminate against any individual with respect to his

12   compensation, terms, conditions, or privileges of employment, because of such individual's age." 29

13   U.S.C. § 623(a)(1). In 1990, Congress enacted the OWBPA, amending the ADEA, to "impose[]

14   specific requirements for releases covering ADEA claims," Oubre v. Entergy Operations, Inc., 522

15   U.S. 422, 424 (1998).

16                   Added as § 7(f) of the ADEA, the OWBPA provides in part that

17                   [a]n individual may not waive any right or claim under [the ADEA] unless the
18                   waiver is knowing and voluntary. . . . [A] waiver may not be considered
19                   knowing and voluntary unless at a minimum--

20                                 (A) the waiver is part of an agreement between the individual
21                           and the employer that is written in a manner calculated to be

                                                       8
 1                         understood by such individual, or by the average individual eligible to
 2                         participate;

 3                                 (B) the waiver specifically refers to rights or claims arising
 4                         under [the ADEA];

 5                                 (C) the individual does not waive rights or claims that may
 6                         arise after the date the waiver is executed;

 7                                (D) the individual waives rights or claims only in exchange for
 8                         consideration in addition to anything of value to which the individual
 9                         already is entitled;

10                                (E) the individual is advised in writing to consult with an
11                         attorney prior to executing the agreement;

12                                (F)(i) the individual is given a period of at least 21 days within
13                         which to consider the agreement; or

14                                        (ii) if a waiver is requested in connection with an exit
15                                incentive or other employment termination program offered to
16                                a group or class of employees, the individual is given a period
17                                of at least 45 days within which to consider the agreement;

18                                (G) the agreement provides that for a period of at least 7 days
19                         following the execution of such agreement, the individual may revoke
20                         the agreement, and the agreement shall not become effective or
21                         enforceable until the revocation period has expired[.]

22   29 U.S.C. § 626(f)(1)(A)-(G) (emphases added).

23                 The OWBPA "stricture[s] on waivers" are "strict" and "unqualified." Oubre, 522 U.S.

24   at 427. "An employee may not waive an ADEA claim unless the employer complies with the statute,"

25   id. (internal quotation marks omitted); an employee's retention of the moneys paid to him pursuant

26   to a separation agreement that fails to meet the minimum requirements of the OWBPA does not ratify

27   the agreement, see id. at 425-28; see also Hodge v. New York College of Podiatric Medicine, 157

28   F.3d 164, 167 (2d Cir. 1998) (employee's acceptance of continued employment and benefits for one

29   year did not ratify a separation agreement that did not meet the minimum requirements of the

                                                      9
 1   OWBPA).

 2                  Regulations promulgated by the EEOC repeat and reflect these strictures. See 29

 3   C.F.R. § 1625.22(b). For example, with respect to the "written in a manner calculated to be

 4   understood" requirement imposed by § 626(f)(1)(A) (the "clarity requirement"), regulations cited by

 5   Ridinger state in part that

 6                  [w]aiver agreements must be drafted in plain language geared to the level of
 7                  understanding of the individual party to the agreement or individuals eligible
 8                  to participate. Employers should take into account such factors as the level of
 9                  comprehension and education of typical participants. Consideration of these
10                  factors usually will require the limitation or elimination of technical jargon and
11                  of long, complex sentences.

12                         (4) The waiver agreement must not have the effect of misleading,
13                  misinforming, or failing to inform participants and affected individuals.

14   29 C.F.R. §§ 1625.22(b)(3) and (4).

15                  The burden of proving that a claimed "waiver was knowing and voluntary" within the

16   meaning of the OWBPA is on "the party asserting the validity of [the] waiver." 29 U.S.C. § 626(f)(3).

17   Section 626(f)(1)(A)'s focus on both the "individual" participating employee and "the average

18   individual" who is eligible to participate may warrant both a particularized and a generalized

19   assessment of the agreement's waiver provisions. However, where the individual employee has not

20   presented the district court with any evidence from which to infer that his own comprehension level

21   was below that of the average eligible employee, the employer carries his burden with respect to the

22   clarity requirement if the language of the waiver agreement is calculated to be understood by the

23   average eligible employee. While evidence as to an individual employee's comprehension level might

24   present an issue of fact to be tried, the matter of whether the agreement's language is calculated to be

25   understood by the average eligible employee is essentially an issue of law.


                                                       10
 1                  In Thomforde and Syverson, the Eighth and Ninth Circuits, respectively, concluded

 2   that the language of IBM documents partially titled "General Release and Covenant Not to Sue" (the

 3   "IBM agreements") failed to meet § 626(f)(1)(A)'s clarity requirement. In each IBM agreement, the

 4   employee agreed to a release of "'all claims'"--including "'claims arising from the [ADEA]'"--and gave

 5   a "'covenant not to sue,'" which included an "'agree[ment] . . . never [to] institute a claim of any kind

 6   against IBM . . . related to [his] employment with IBM'"; however, each agreement also provided that

 7   "'[t]his covenant not to sue does not apply to actions based solely under the [ADEA].'" Thomforde,

 8   406 F.3d at 501-02 (quoting IBM agreement); Syverson, 472 F.3d at 1081-82 (same). Reasoning that

 9   a lay employee could easily read these provisions as allowing the employee to bring an action under

10   the ADEA, the Thomforde and Syverson courts concluded that the IBM agreements were not written

11   in a manner calculated to be understood by the relevant employees, as required by § 626(f)(1)(A), and

12   were thus unenforceable under the OWBPA. See Thomforde, 406 F.3d at 504; Syverson, 472 F.3d

13   at 1087.



14   B. Ridinger's Lack-of-Clarity Challenge

15                  As indicated in Part I.B. above, Ridinger opposed Dow Jones's motion in the district

16   court solely as a matter of law, without suggesting that there was any factual issue to be resolved. He

17   argued that Dow Jones's motion should be denied on the basis of the decisions in Thomforde and

18   Syverson, apparently equating the language in the Separation Agreement with the language in the

19   IBM agreements that were at issue in those cases. (See Ridinger Mem. at 4.) The district court,

20   however, correctly noted that the language of the Separation Agreement signed by Ridinger is quite

21   different from that in the IBM agreements considered in Thomforde and Syverson. Although ¶ 4 of


                                                        11
 1   the Separation Agreement uses the terms "waiver," "release," and "covenant not to sue," it does not

 2   use or combine them in the manner found to be confusing in the IBM agreements. Paragraph 4 of the

 3   Separation Agreement refers to covenants not to sue only in stating that Ridinger agrees not to sue

 4   Dow Jones as provided in that paragraph "unless such a covenant not to sue is invalid under

 5   applicable law." (Separation Agreement ¶ 4(b).) Further, unlike in Thomforde and Syverson--where

 6   lay readers could plausibly read the phrase "[the] covenant not to sue does not apply to actions based

 7   solely under the [ADEA]" to mean that they could bring actions based solely under the ADEA despite

 8   having released the employer from all ADEA claims, see Thomforde, 406 F.3d at 502-03 (internal

 9   quotation marks omitted); see also Syverson, 472 F.3d at 1083-84--the Separation Agreement here

10   clearly explains that it is only the "financial obligations" triggered by a breach of Ridinger's promise

11   not to sue that "would not apply to a suit filed solely under the ADEA, but . . . that the waivers and

12   releases contained in paragraph 4(a) still apply to ADEA claims." Separation Agreement ¶ 4(d)

13   (emphasis added).

14                  In this Court, Ridinger argues that while the language at issue in other cases "may"

15   have been different (Ridinger brief on appeal at 15), the Separation Agreement is unenforceable

16   because "the waiver section . . . contains technical jargon, complex sentences that are written in a

17   manner not calculated to be understood by the average individual" (id. at 15-16). Ridinger does not

18   specify what "jargon" he found confusing; his only nonconclusory argument in support of his "not

19   calculated to be understood" contention is based on the "word processing error" noticed by the district

20   court, 717 F.Supp.2d at 372-73 (pointing out that ¶ 4(a) of the Separation Agreement states that

21   nothing in the Agreement "limit[s] or restrict[s] Manager's [sic] right under the ADEA to challenge

22   the validity of this Agreement in a court of law" (emphasis and internal quotation marks omitted))--


                                                       12
 1   which Ridinger, in his opposition to the motion, had not contended was confusing. Focusing on that

 2   clause in his brief on appeal, Ridinger argues as follows:

 3                  What that provision states is that the Manager can under ADEA challenge the
 4                  validity of the Agreement. Since Dow Jones used boiler plate language in the
 5                  Agreement and because of the responsibilities that Ridinger had as a photo
 6                  editor, it is reasonable to conclude that sub-section might give him the right to
 7                  challenge the validity of the Agreement de novo in court.

 8   (Ridinger brief on appeal at 12 (emphasis added).) As a basis for claiming confusion, this argument

 9   is meritless. That boilerplate error could not have misled Ridinger to believe that he had the right to

10   challenge "the validity" of the Agreement in court because the Agreement in fact expressly gave him

11   that right--which he acknowledged: "Employee . . . understands that he retains the right to bring a

12   legal action to . . . challenge the validity of this Agreement" (Separation Agreement ¶ 4(d) (emphases

13   added)). And Ridinger has pointed to nothing in the Separation Agreement that could have led him

14   to believe he retained the right to bring an action alleging age discrimination in violation of the

15   ADEA, rather than simply an action challenging the validity of the Separation Agreement.

16                  Finally, although it is not clear whether Ridinger intended to pursue here the argument

17   he made to the district court--that the Separation Agreement was confusing because of what he called

18   "an inconsistency" between the language stating that "Ridinger[] waives his right to sue" and the

19   subsequent language "stat[ing] that the waiver and release does [sic] not apply to any claim that may

20   arise under the ADEA after the employee signs the Agreement" (Ridinger Mem. at 5)--we note that

21   that argument too is meritless in light of the discrete time periods specified. The Agreement expressly

22   provides that Ridinger waives his right to sue only with respect to claims "through the date of this

23   Agreement" (Separation Agreement ¶ 4(a)); that provision plainly is not inconsistent with the

24   provision that he does not waive his right to sue with respect to "any claim that may arise under the


                                                       13
 1   ADEA after the date that Employee signs this Agreement" (id. (other emphasis omitted)).

 2                   In sum, having reviewed the Separation Agreement de novo in light of the record

 3   before the district court, which, as discussed in Part II.C. below, included no suggestion by Ridinger

 4   that there were any factual issues to be resolved as to such matters as his particular level of

 5   comprehension, we conclude that Dow Jones met its burden of showing that the Agreement was

 6   written in a manner calculated to be understood by the relevant Dow Jones employees.



 7   C. Ridinger's Other Arguments

 8                   Ridinger makes two additional arguments on this appeal: (1) that summary judgment

 9   should have been denied because there are issues of fact to be tried, and (2) that the Separation

10   Agreement is unenforceable because he was not advised in writing, as required by OWBPA, to

11   consult with an attorney before signing the Agreement, see 29 U.S.C. § 626(f)(1)(E). We see no basis

12   for reversal.

13                   Neither of these arguments was made to the district court. We normally will not

14   disturb a judgment on the basis of an argument that was not made to the district court. See, e.g.,

15   Leyda v. AlliedSignal, Inc., 322 F.3d 199, 207 (2d Cir. 2003); Gilbert v. Frank, 949 F.2d 637, 640

16   (2d Cir. 1991). "[T]his bar to raising new issues on appeal is not absolute," but "it may be overcome

17   only when necessary to avoid manifest injustice." Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d

18   522, 527 (2d Cir.) (internal quotation marks omitted), cert. denied, 498 U.S. 846 (1990). We see no

19   potential injustice here.

20                   Ridinger acknowledges that factual matters--such as his "education and business

21   experience, his role in deciding the terms of the agreement, . . . and whether he had a fair opportunity


                                                       14
 1   to consult with counsel"--were not presented to the district court. (Ridinger brief on appeal at 18.)

 2   Dow Jones, in moving to dismiss on the basis of the Separation Agreement, a "matter[] outside the

 3   pleadings," Fed. R. Civ. P. 12(d), expressly invoked Rule 12(d), which required, unless the Agreement

4    was excluded by the court, that the motion be "treated as one for summary judgment," id. If Ridinger

5    believed there were genuine issues of material fact to be tried, so as to preclude summary judgment,

6    it was incumbent on him to so inform the district court and to do so by proffer of admissible evidence,

 7   see, e.g., ITC Ltd. v. Punchgini, Inc., 482 F.3d 135, 151 (2d Cir.) ("conclusory statements, conjecture,

8    and inadmissible evidence are insufficient to defeat summary judgment"), cert. denied, 552 U.S. 827

 9   (2007). He did not. Indeed, even in this Court, Ridinger mentions the above factual matters only in

10   the heading of the final point in his brief and provides no elaboration, no reference to evidence

11   (admissible or inadmissible) and, hence, no reason to believe that there should have been a trial.

12                  Nor are we persuaded that we should entertain the claim that the Separation Agreement

13   is unenforceable on the ground that Ridinger was not advised to consult an attorney prior to signing

14   the Agreement. In the Agreement, Ridinger "ACKNOWLEDGE[D]," inter alia, that

15                  [t]he Company has advised me to consult with an attorney prior to signing
16                  this Agreement, and I have had the opportunity to consult with an
17                  attorney prior to signing this Agreement.

18   (Separation Agreement ¶ 6(e) (emphasis in original).) We see no injustice in refusing to allow him

19   to introduce on appeal the new contention that he was not so advised.



20                                              CONCLUSION



21                  We have considered all of Ridinger's arguments that are properly before us and have


                                                       15
1   found them to be without merit. The judgment of the district court is affirmed.




                                                    16
