Louisiana's First Circuit Court of Appeal in Baton Rouge, Louisiana upheld,
in a brief memorandum opinion issued on Tuesday (February 15, 2005) the certification
of a nationwide class of former IBM employees who left IBM after availing themselves
of an early termination package called ITO II, in 1992. Shortly after the employees'
departure, IBM "suspended" one of the benefits in the ITO-II package,
the REAP benefit, that provided for a reimbursement of education expenses up
to $2500 per person. The benefit was never reinstated. The suit was filed under
state law contending, in effect, that the ITO-II benefits were part of the consideration
for releases signed by class members releasing IBM from liability to the class
members for age discrimination in connection with the down-sizing. The case
claims that a party to a release (such as IBM) cannot unilaterally alter the
consideration promised for a release after the release has been given. Accordi!
ng to IBM's records, the class consists of 25,000 or more retired IBMers and
their apouses in all 50 states and DC. The case was filed in the 19TH JUDICIAL
DISTRICT COURT FOR THE PARISH OF EAST BATON ROUGE, STATE OF LOUISIANA, NO. 421-453,
in DIVISION "D", under the name of PATRICK J. CUNNINGHAM, ANTON N.
ZANKI,AND ALL OTHER PERSONS SIMILARLY SITUATED VERSUS INTERNATIONAL BUSINESS
MACHINES CORPORATION. The court's decision is procedural in the sense that it
decides that the case can proceed as a class action on behalf of all persons
who either took early retirement or "bridged" to retirement under
the ITO-II program. The decision is not yet final in the sense that it could
be subject to rehearing by the Court of Appeals or discretionary review by the
Louisiana Supreme Court, should IBM persuade the court that such action is appropriate.
Charles E. Hamilton, III, Lamothe & Hamilton, New Orleans LA Tel. 504-566-1805;
Fax: 504 566-1569; chamilton@lamothehamilton.com