     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-Appellant.

22                                        KEVIN G. CHAPMAN, Princeton, New Jersey, for
23                                        Defendant-Appellant.
 1   KEARSE, Circuit Judge:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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



17                                           I. BACKGROUND

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

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

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

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


                                                       2
 1   terminated. Ridinger was granted a severance package that included 20 weeks' salary and other

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

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

 4   Agreement.



 5   A. The Separation Agreement and Ridinger's Complaint

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

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

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

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

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

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

12   and released his present claims.

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

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

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

16                          (a) Employee, in exchange for the payments and other consideration
17                  embodied in this Agreement, waives, releases and forever discharges the
18                  Company . . . from all claims, causes of action, [or] lawsuits . . . which
19                  Employee may now or hereafter have against the Company from the beginning
20                  of time through the date of this Agreement, including but not limited to: (i)
21                  any claim or cause of action arising under Title VII of the Civil Rights Act of
22                  1964, as amended, the Age Discrimination in Employment Act (the "ADEA"),
23                  . . . and any other common law, federal, state or local law prohibiting
24                  discrimination or limiting an employer's right to terminate employees . . . .
25                  Nothing in this Agreement shall limit or restrict Manager's [sic] right
26                  under the ADEA to challenge the validity of this Agreement in a court of
27                  law. This waiver and release does not apply to any claim that may arise
28                  under the ADEA after the date that Employee signs this Agreement.

                                                      3
 1                            (b) Employee warrants that he has not filed, and agrees that he will not
 2                   file or cause to be filed, any action, suit, or claim with any federal, state or
 3                   local court relating to any claim within the scope of this paragraph 4, unless
 4                   such a covenant not to sue is invalid under applicable law, in which case this
 5                   sub-paragraph (b) shall be stricken from this Agreement, but all other
 6                   provisions shall remain in full force.

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

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

 9                   [n]otwithstanding the agreements and obligations contained in paragraph[]
10                   4(b) . . . above, Employee understands that he retains the right to file charges
11                   with a government agency and to participate in an investigation or litigation
12                   initiated by a government agency, without penalty or obligation to the
13                   Company under this Agreement. Employee further understands that he retains
14                   the right to bring a legal action to enforce the terms of this Agreement or to
15                   challenge the validity of this Agreement without penalty or obligation to the
16                   Company under this Agreement (except that the benefits to Employee provided
17                   in this Agreement may not apply if the Agreement is deemed to be invalid).
18                   Employee further understands that, under the law, the obligations to repay
19                   money received and to pay the Company's damages and costs provided for in
20                   paragraph 4(b) in the event that Employee breaches his promise not to file a
21                   suit over released claims do not apply to claims under the ADEA. Therefore,
22                   the financial obligations of paragraph 4(b) would not apply to a suit filed
23                   solely under the ADEA, but Employee nevertheless understands that the
24                   waivers and releases contained in paragraph 4(a) still apply to ADEA claims
25                   and that he has waived all ADEA claims as part of this Agreement and that in
26                   any suit brought under the ADEA, Employee would not be entitled to any
27                   damages or other relief unless this Agreement and the waivers contained in it
28                   were deemed to be unlawful or otherwise invalid.

29   (Id. ¶ 4(d).)



30   B. The Decision of the District Court

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

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

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

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

                                                        4
1    Cir. 2005) ("Thomforde"), and Syverson v. IBM, 472 F.3d 1072 (9th Cir. 2007) ("Syverson"),

2    Ridinger argued that

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

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

 8   30, 2009 ("Ridinger Mem."), at 4.) Ridinger cited an online EEOC "pamphlet" stating that waivers

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

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

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

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

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

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

15   25 lines and over 300 words"); id. ("Sub-section (b) contains 11 lines")), and were confusing because

16                  in paragraph 4 of the Dow Jones Separation Agreement and General Release
17                  captioned Waiver of Claims against Employer there is an inconsistency. In
18                  sub-paragraph (a) the employee, in this case, Mr. Ridinger, waives his right to
19                  sue and then in bold face the Agreement states that the waiver and release does
20                  not apply to any claim that may arise under the ADEA after the employee
21                  signs the Agreement. There are similar instances in sub-paragraphs b and d.

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

23   ¶¶ 4(b) and 4(d).

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

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

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

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

                                                      5
 1   in combinations that could easily be misunderstood, in that they "required an employee to release all

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

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

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

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

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

 7   ADEA.

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

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

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

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

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

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

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

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

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

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



21   717 F.Supp.2d at 373 (quoting 29 U.S.C. § 626(f)(1)(C).). The district court concluded that the

22   Separation Agreement

23                  adequately conveys the limitations that Ridinger accepted in exchange for
24                  enhanced severance pay. There also is no indication that any of the

                                                       6
 1                    undertakings set forth in the Agreement were couched in terms too
 2                    complicated for Ridinger to understand.

 3   717 F.Supp.2d at 374.

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

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

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

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

 8   inconsequential because

 9                    the Agreement elsewhere makes clear that the "Employee . . . retains the right
10                    to bring a legal action to . . . challenge the validity of th[e] Agreement . . .
11                    (except that the benefits to Employee provided in th[e] Agreement may not
12                    apply if the Agreement is deemed to be invalid)." [Separation Agreement
13                    ¶ 4(d).] Accordingly, even if Ridinger thought that the term "Manager"
14                    referred to Dow Jones, the Agreement correctly informed him of his rights.
15                    Moreover, if Ridinger interpreted the term "Manager" to refer to himself, the
16                    Agreement twice stated the applicable law correctly. This apparent word
17                    processing error therefore does not affect the enforceability of the Agreement.

18   Id. at 372-73.

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



20                                              II. DISCUSSION

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

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

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

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

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

26   for reversal.


                                                         7
 1   A. The OWBPA

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

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

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

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

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

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

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

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

12                                   (A) the waiver is part of an agreement between the individual
13                           and the employer that is written in a manner calculated to be
14                           understood by such individual, or by the average individual eligible to
15                           participate;

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

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

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

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

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

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

                                                        8
 1                                 (G) the agreement provides that for a period of at least 7 days
 2                          following the execution of such agreement, the individual may revoke
 3                          the agreement, and the agreement shall not become effective or
 4                          enforceable until the revocation period has expired[.]

 5   29 U.S.C. § 626(f)(1)(A)-(G) (emphases added).

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

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

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

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

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

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

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

13   OWBPA).

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

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

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

17   Ridinger state in part that

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

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

26   29 C.F.R. §§ 1625.22(b)(3) and (4).




                                                        9
 1                  The burden of proving that a claimed "waiver was knowing and voluntary" within the

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

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

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

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

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

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

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

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

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

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

12                  In Thomforde and Syverson, the Eighth and Ninth Circuits, respectively, concluded

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

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

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

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

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

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

19   406 F.3d at 501-02 (quoting IBM agreement); Syverson, 472 F.3d at 1081-82 (same). Reasoning that

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

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

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

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

24   at 1087.

                                                        10
 1   B. Ridinger's Lack-of-Clarity Challenge

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

21   (emphasis added).

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

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

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

                                                       11
 1   manner not calculated to be understood by the average individual" (id. at 15-16). Ridinger does not

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

                                                       12
 1   that argument too is meritless in light of the discrete time periods specified. The Agreement expressly

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

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

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

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

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

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

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

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

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



11   C. Ridinger's Other Arguments

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

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

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

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

16   for reversal.

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

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

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

20   (2d Cir. 1991). "[T]his bar to raising new issues on appeal is not absolute," but "it may be overcome

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

22   522, 527 (2d Cir.) (internal quotation marks omitted), cert. denied, 498 U.S. 846 (1990). We see no

23   potential injustice here.

                                                       13
 1                  Ridinger acknowledges that factual matters--such as his "education and business

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

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

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

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

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

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

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

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

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

11   (2007). He did not. Indeed, even in this Court, Ridinger mentions the above factual matters only in

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

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

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

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

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

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

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

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



22                                              CONCLUSION

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

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

                                                       14
