Introduction

CollegeAmerica entered an agreement with Debbi Potts, its former employee, in September 2012. The agreement required Potts to “refrain from . . . contacting any governmental or regulatory agency with the purpose of filing any complaint or grievance that shall bring harm to CollegeAmerica.” App‑44. In March 2013, shortly after Potts filed a charge with the EEOC naming CollegeAmerica, the company sued her in state court for breaching the 2012 agreement. In August 2013, the company argued before the state court that one of the ways Potts was breaching the agreement was by filing charges with the Commission.

Agreements that interfere with the communication between an employee and the EEOC “sow[] the seeds of harm to the public interest.” EEOC v. Astra USA, Inc., 94 F.3d 738, 744 (1st Cir. 1996); see also id. at 745 (stressing importance of “the free flow of information” between possible victims of discrimination and “the agency entrusted with righting the wrongs inflicted upon them”). The EEOC accordingly sued CollegeAmerica in April 2014 seeking, among other things, to stop the company from interfering with Potts’s right to file charges and participate in Commission investigations and with the EEOC’s right to receive charges and information from Potts.

The Commission argued in its opening brief that the district court erred in dismissing the Commission’s interference claim as moot. In response, CollegeAmerica maintains that the claim was moot, and that even if it was not, dismissal was proper because the Commission failed to state a claim. This Court should reject these arguments. A defendant that claims to have ceased its unlawful conduct bears a heavy burden to show mootness under the voluntary-cessation doctrine; here the company fell far short of that threshold because it failed to eliminate any reasonable expectation that the company would again interfere with Potts’s rights. Furthermore, CollegeAmerica’s arguments fail because the Commission plainly stated a claim under 29 U.S.C. § 626(f)(4), the anti-interference provision of the Age Discrimination in Employment Act (“ADEA”).[1]

I. The Commission’s claim was not moot.

CollegeAmerica’s principal contention is that the dismissal was proper because the company established that there was no reasonable expectation that any violation would recur. This argument ignores actions the company took and the legal effect of those actions, it confuses documents waiving claims with actions interfering with rights, and it relies on court decisions that are readily distinguishable.

CollegeAmerica stresses in its brief that it “never interfered with Potts’ ability to file . . . charges of discrimination.” CollegeAmerica Br. (“CA Br.”) at 6 (emphasis in original); see also CA Br. at 15–16 (“[T]he College has never interfered with . . . Potts’ participation rights.”). This statement is clearly false. Potts filed a charge in January 2013, and CollegeAmerica sued her in March 2013 for breaching the September 2012 agreement. Then in August 2013 the company argued to the state court that one of the ways Potts had violated the agreement was by filing “administrative claims against the College, including multiple charges with the EEOC.” App-64.

The Commission wishes to make two separate points about the company’s August 2013 state court argument. First, the Commission quoted CollegeAmerica’s argument about filing EEOC charges in its complaint (App-18, ¶ 19) and in the factual summary in its opening brief (at 7), and then relied on it in the argument section of its brief (at 23). In its response brief, CollegeAmerica does not maintain that the Commission misrepresented its August 2013 filing. Instead, the company simply ignores the inconvenient fact that it made this argument—that Potts should be penalized for filing EEOC charges—to the state court.

Second, the company’s August 2013 argument shows that the company was seeking damages from Potts in its state action in part precisely for filing charges with the Commission. The company was accordingly interfering with her right to file those charges. See 29 U.S.C. § 626(f)(4) (“No waiver agreement . . . may be used to justify interfering with the protected right of an employee to file a charge . . . .”); 29 C.F.R. § 1625.22(i)(3) (“No waiver agreement may include any provision imposing . . . any penalty, or any other limitation adversely affecting any individual’s right to . . . [f]ile a charge . . . with EEOC . . . .”).

Indeed, the January 2014 letters that CollegeAmerica relies on to eliminate any reasonable expectation of a future violation in effect conceded that the company had interfered with Potts’s right to file charges. Counsel’s January 7 letter to Potts stated:

CollegeAmerica has never asserted and will not assert at any time in the future that the Agreement constitutes a waiver of age discrimination claims under the Older Workers Benefit Protection Act (“OWBPA”). Likewise, CollegeAmerica does not assert and will not assert at any time in the future that you violated the Agreement by filing a charge with the EEOC . . . .

App-78 (emphasis added).[2] The company could not—and in its January letters did not—claim that it had “never asserted” that Potts violated the agreement by filing her charges, because the company clearly had made that argument to the state court. Yet the company now tries to convince this Court that it never did that.

The Commission argued in its opening brief (at 15–16) that even if the district court fully credited the statements in the company’s January 2014 letters and its February 2014 amended complaint, the company failed to address the Commission’s concern that the company would interfere with Potts’s right to participate in Commission investigations. The company therefore did not satisfy its “‘heavy burden’” under the voluntary-cessation doctrine of persuading the court that “‘the challenged conduct cannot reasonably be expected to start up again.’” Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1116 (10th Cir. 2010) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)). CollegeAmerica responds that it did address this concern, because it made clear in early 2014 that it did not and would not assert that the 2012 agreement “constituted a waiver of any rights under the OWBPA or ADEA.” CA Br. 14. The company’s citations to the record, however, do not support this claim.

The company quotes four clauses from the early 2014 documents. CA Br. 15. The first, third, and fourth clauses state that the 2012 agreement does not, in the company’s eyes, include any provision in which Potts released or waived any age discrimination claims she had against the company under the ADEA. That is, the agreement contained no waiver of ADEA discrimination claims. That is undisputed. It is also irrelevant to the Commission’s interference claim. The Commission is not alleging in its interference claim that the agreement contained a waiver of Potts’s potential age-discrimination claims. It is alleging that CollegeAmerica was using the agreement to interfere with “the protected right of an employee to file a charge or participate in an investigation or proceeding conducted by the Commission.” 29 U.S.C. § 626(f)(4).

The company argues that the second clause it quotes is broader than the other clauses, but in context it was not. The second clause stated that CollegeAmerica had never asserted that the agreement “‘constitutes a waiver of any rights under the OWBPA or the ADEA.’” CA Br. 15 (quoting counsel’s Jan. 2014 letter to the EEOC, App-80) (emphasis in company’s brief). The company then contends that this statement—that the company did not view the agreement as waiving any of Potts’s ADEA rights—removed any reasonable expectation that the company would violate § 626(f)(4) by interfering with Potts’s participation rights. CA Br. 16. “Potts’ ADEA right to participate in EEOC investigations and proceedings is one of the rights that the College assured her and the EEOC had not been waived in the Agreement.” CA Br. 16. This statement is factually inaccurate and legally irrelevant.

First, the statement just quoted is not based on a reasonable reading of the January 10 letter. Counsel stated in his January 10 letter to the Commission that CollegeAmerica “has never asserted that the . . . 2012 agreement constitutes a waiver of any rights under the OWBPA or the ADEA.” App-80. This statement did not put the Commission on notice that the company viewed the agreement as not having waived Potts’s right to file charges and participate in Commission proceedings. The letter explained the “any rights” sentence just quoted by referring to counsel’s January 7 letter to Potts, which had stated that the company “has never asserted . . . that the Agreement constitutes a waiver of age discrimination claims.” App-78, 80 (emphasis added). The January 10 letter continued its explanation of the “any rights” sentence by stating that the 2012 agreement did not “contain a release” and was never “intended to waive . . . a claim” under the ADEA. App-80 (emphasis added). Finally, the January 10 letter contained a separate discussion of whether Potts was “liable for breaching the contract based on the filing of her charges with the Commission.” App-80. Accordingly, CollegeAmerica’s argument that the Commission—or the district court—should have known that the “any rights” sentence referred to Potts’s rights to file charges and participate in Commission proceedings is based on an unreasonable reading of the January 10 letter.

More important, CollegeAmerica’s argument is legally irrelevant. The company focuses on the provisions in the 2012 agreement and on the company’s statements in early 2014 about its interpretation of those provisions. The ADEA’s anti-interference provision focuses not on the content of the agreement but on how the agreement is used. The statute bars employers from “us[ing]” waiver agreements “to justify interfering with the protected right of an employee to file a charge or participate in an investigation or proceeding conducted by the Commission.” 29 U.S.C. § 626(f)(4). In spite of the company’s early 2014 assurances about how it interpreted the agreement, CollegeAmerica used the agreement to interfere with Potts’s rights to file charges and participate in EEOC proceedings in August 2013, because it argued to the state court that Potts had breached the agreement by filing charges with the EEOC (and should therefore pay the company damages). CollegeAmerica used the 2012 agreement to interfere with Potts’s rights again in February 2016, when it maintained in the pretrial order that Potts had breached the agreement by filing charges without first communicating her complaints to the company.[3]

CollegeAmerica’s fallback argument is that even if Matthew Gerber’s August 2014 affidavit was the company’s only statement addressing Potts’s right to participate in EEOC proceedings, that affidavit by itself was sufficient to remove any reasonable expectation that violations would recur.[4] This argument too fails on both the facts and the law.

First, as we just argued supra, a promise not to argue that the agreement waived Potts’s rights to file charges and participate in EEOC proceedings is not the same as a promise not to use the agreement to interfere with those rights. Again, CollegeAmerica’s argument in the February 2016 pretrial order exemplifies the distinction. The company did not argue in the pretrial order that Potts’s charge-filing violated the agreement because the agreement had waived her right to file charges. Rather, the company maintained that Potts violated the agreement—as the company interpreted it—because she communicated her complaints about the company to the Commission without first sharing them with the company. App-91–92. Thus the company did not argue that the agreement had waived Potts’s right to file charges, but it did use the agreement to interfere with her right to file charges—because it alleged that her charge-filing breached the agreement and therefore exposed Potts to liability for damages in the company’s state action. Since CollegeAmerica was using the agreement to interfere with Potts’s right to file a charge, that right was not as “unfettered” as Gerber’s affidavit claimed it was.

Second, the cases that CollegeAmerica cites to support its argument—that Gerber’s one affidavit was sufficient—are distinguishable. Brown v. Buhman, 822 F.3d 1151 (10th Cir. 2016), and Winsness v. Yocom, 433 F.3d 727 (10th Cir. 2006), were actions seeking to enjoin district attorneys from prosecuting the plaintiffs for specific crimes (bigamy in Brown and flag abuse in Winsness). In each case this Court ruled that the plaintiffs’ claims should be dismissed as moot. In both cases there was other evidence that the plaintiffs faced no credible threat of future prosecution,[5] but both decisions relied in significant part on a declaration or affidavit by the district attorney that he did not consider the plaintiffs’ conduct criminal and would not prosecute them for doing what they had done or were doing. In relying on the district attorneys’ affidavits, this Court stressed that the affiant was “the highest-ranking law enforcement official” in the county, Brown, 822 F.3d at 1170, and subject to ongoing judicial supervision and potential “prosecution for perjury or contempt” in a way that private defendants would not be, id. at 1171. Moreover, as a matter of policy, courts should not prevent “government actors from responsibly retreating from an ill-advised prosecution.” Winsness, 433 F.3d at 736; see also Haywood v. United States, 644 F. Supp. 188, 190 (D. Kans. 1986) (in an action asking the court to enjoin the IRS from further improper collection activities, the court ruled the claim moot based on an affidavit by an experienced IRS agent stating that she had corrected the relevant electronic database entry, and that, as a result, no further levies would be issued). In sum, prosecutors and government officials are treated differently from private defendants when this Court assesses whether a single affidavit has rendered a controversy moot. When the defendant is a private entity, “courts are reluctant to deem a controversy moot based merely on assurances from the defendants that they will not engage in unlawful activity again.” Winsness, 433 F.3d at 736. Gerber is not a government prosecutor. He is in-house counsel for a private defendant. This Court should therefore reject the company’s argument that the district court could have found this case moot based solely on Gerber’s August 2014 affidavit.

CollegeAmerica closes this section of its brief by contending that the Commission’s claim is moot because it is now too late for Potts to file a charge challenging events that occurred in 2013 and because the Commission is not currently investigating any charge challenging those events. CA Br. 20. This argument ignores the fact that the company’s state action against Potts for breaching the 2012 agreement is still pending, and the company accordingly has ample opportunity to continue using the agreement to penalize her for having asserted her ADEA rights. Cf. Astra USA, 94 F.3d at 742 (where employer’s concession on right of employees who had settled claims to communicate with EEOC remained “somewhat tenebrous,” chilling effect still exists and employer cannot defeat injunction “by indulging in a revisionist interpretation” of the agreements).

CollegeAmerica further maintains that any effects of its alleged violation of § 626(f)(4) have been “completely and irrevocably eradicated” by its statements about how it will interpret the 2012 agreement. CA Br. 20–23. This argument again ignores the fact that the company is currently seeking damages from Potts for violating that agreement, and it has argued that she violated two provisions of the agreement by filing her charges.

II. The Commission Stated a Claim Under § 626(f)(4), the ADEA’s Anti-Interference Provision.

CollegeAmerica maintains that even if the Commission’s claim was not moot, the district court’s dismissal order was proper because the Commission failed to state a claim and sought overly broad injunctive and declaratory relief. CA Br. 25–30. These arguments should be rejected: the Commission stated a valid interference claim under 29 U.S.C. 626(f)(4), the relief that the Commission requested was appropriate, and requesting excessive relief is in any event not grounds for dismissing a claim under rule 12(b)(6).

First, the company contends that the Commission failed to state a claim because this Court has barred plaintiffs from seeking affirmative relief from an employer on the grounds that the employer failed to satisfy all the requirements for a knowing and voluntary waiver listed in § 626(f). CA Br. 26–28 (relying on Whitehead v. Okla. Gas & Elec. Co., 187 F.3d 1184 (10th Cir. 1999)). But Whitehead held that a private plaintiff cannot state a claim for relief based on an employer’s failure to satisfy the requirements listed in § 626(f)(1). 187 F.3d at 1191–92. Whitehead did not address whether the Commission can state a claim for a violation of § 626(f)(4).

The private plaintiffs in Whitehead had each had breaks in their employment with the defendant utility. The utility offered a voluntary-early-retirement program with enhanced pension benefits, but the pension-benefit calculations were based on continuous service only and did not bridge breaks in employment. Two of the plaintiffs accepted the offer, signed the required release, and started receiving benefits. They then sued, claiming, among other things, that the company had violated the OWBPA, 29 U.S.C. § 626(f)(1)(F)(ii), by not giving them forty-five days to consider the offer. They maintained that because of this OWBPA violation, the court should negate their waivers, require the plan to bridge their gaps in service, and award punitive damages. Whitehead, 187 F.3d at 1191. The district court dismissed this claim and this Court affirmed. This Court held that the requirements for a knowing and voluntary waiver set forth in § 626(f)(1) have only one function: they determine whether an employee’s waiver of his ADEA claim was knowing and voluntary, and they are therefore relevant only when the plaintiff has alleged that his employer discriminated against him on the basis of his age and the employer has responded by contending that the plaintiff waived his ADEA claims. Id. at 1191–92. The plaintiff may then rely on the requirements listed in § 626(f)(1) to argue that his waiver was not knowing and voluntary because it did not meet the statutory requirements. Id.

The Commission was not a party to the Whitehead litigation, and this Court did not address § 626(f)(4) in that case. Subsections (f)(1)–(3) of § 626 govern the validity of private waivers of ADEA claims. They determine whether an employee has effectively waived his right to sue his former employer for age discrimination. Whitehead, 187 F.3d at 1191–92. Subsection (f)(4) is quite different: it protects the EEOC’s right to enforce the ADEA. It states:

No waiver agreement may affect the Commission’s rights and responsibilities to enforce this chapter. No waiver may be used to justify interfering with the protected right of an employee to file a charge or participate in an investigation or proceeding conducted by the Commission.

29 U.S.C. § 626(f)(4). Several courts have held that § 626(f)(4) is designed to protect the Commission’s information channels and enforcement mechanisms, not to govern the validity of waivers. See Wastak v. Lehigh Valley Health Network, 342 F.3d 281, 289–93 (3d Cir. 2003); Thiessen v. Gen. Elec. Capital Corp., 232 F. Supp. 2d 1230,

1241–43 (D. Kans. 2002); Romero v. Allstate Ins. Co., 1 F. Supp. 3d 319, 391–97 (E.D. Pa. 2014). These courts relied primarily on three factors in reaching this conclusion. First, the plain language of subsection (f)(4) does not address the validity of a waiver. Second, the structure of § 626(f) shows that the first three subsections address whether a waiver is knowing and voluntary, while the fourth subsection addresses the Commission’s right and responsibility to enforce the ADEA. Third, the legislative history of § 626(f)(4) stressed the public interest in vigorous enforcement of the ADEA. Wastak, 342 F.3d at 289–91; Thiessen, 232 F. Supp. 2d at 1241–43.

In sum, according to CollegeAmerica, this Court held in Whitehead that no plaintiff can seek affirmative relief for a violation of § 626(f). CA Br. 26–28. What Whitehead actually held was that no private plaintiff can seek affirmative relief based on his employer’s failure to satisfy all the requirements in § 626(f)(1). Whitehead did not address § 626(f)(4), and the company’s argument that Whitehead bars the Commission’s § 626(f)(4) claim should accordingly be rejected.

The company cites a dozen other cases decided the same way as Whitehead. CA Br. 26–28 & n.6. The company is correct in describing these cases as similar to Whitehead. Each of the cases the company cites addressed the issue of whether the plaintiff could obtain affirmative relief based on the employer’s failure to comply with the waiver requirements listed in § 626(f)(1). See, e.g., Gray v. Oracle Corp., No. 2:05-cv-534, 2006 WL 2987936, at *1 (D. Utah Oct. 17, 2006) (the court declined to direct the employer to provide the statistical information that the plaintiff claimed was required under § 626(f)(1)(H) because the plaintiff did not sign the waiver and its validity was therefore not at issue); EEOC v. Sara Lee Corp., 923 F. Supp. 994,

997–99 (W.D. Mich. 1995) (the waivers that the employees signed did not satisfy the requirements of § 626(f)(1), but the court denied the EEOC’s request for an injunction, ruling that “a failure to meet [§ 626(f)(1)’s] requirements does not constitute a separate cause of action”). None of the cases the company cites even mentioned § 626(f)(4). Like Whitehead, therefore, they provide no authority for the proposition that the Commission cannot sue to enforce § 626(f)(4).

Section 626(f)(4) is a statutory prohibition, but it is an ineffectual prohibition unless the Commission can sue to enforce it. The Commission has a duty to enforce the ADEA, see Fed. Express Corp. v. Holowecki, 552 U.S. 389, 400 (2008), and § 626(f)(4) protects the Commission’s access to the information and evidence it needs to fulfill that duty: the charges filed with the Commission and the statements and testimony of witnesses in the Commission’s investigations. CollegeAmerica used the 2012 agreement to interfere with Potts’s right to file charges in August 2013 and again in February 2016. See supra pp. 3–4, 9. If the Commission cannot sue an employer that repeatedly violates § 626(f)(4), it is difficult to see how the provision can be enforced.

In its only argument that addresses § 626(f)(4) specifically, the company claims in a footnote that § 626(f)(4) does not apply here because the 2012 agreement is not a “waiver agreement.” CA Br. 28 n.8. But the 2012 agreement on its face prohibited Potts from “contacting any governmental or regulatory agency with the purpose of filing any complaint” against the company. App-44. Potts could reasonably have interpreted this provision as waiving her right to file an ADEA charge with the EEOC. Indeed, CollegeAmerica bolstered that interpretation of the “no contact” provision by arguing to the state court that Potts had breached the 2012 agreement by filing charges with the Commission. The company’s contention that there is no waiver agreement here should accordingly be rejected.

CollegeAmerica’s second argument supporting a rule 12(b)(6) dismissal is that the Commission allegedly “sought overly-broad, unauthorized injunctive and declaratory relief.” CA Br. 29. But the Commission’s requests for relief are supported by the plain language of § 626(f)(4) and its legislative history. The Commission asked the district court to declare the 2012 agreement, or just “the offending provisions” in it, void as against public policy. App-25. The Senate and House committee reports accompanying the OWBPA stated that the committees intended § 626(f)(4)

as a clear statement of support for the principle that the elimination of age discrimination in the workplace is a matter of public as well as private interest. No waiver agreement may be permitted to interfere with the achievement of that goal. This position is consistent with the holding and reasoning of EEOC v. Cosmair, Inc., 821 F.2d 1085 (5th Cir.1987).

S. Rep. 101-263, at 35 (1990), as reprinted in 1990 U.S.C.C.A.N. 1509, 1541; H.R. Rep. 101-664, at 54 (1990), 1990 WL 200383, part V.B.6 (same language). The Commission’s request that the district court declare the offending provisions void as against public policy was not overly extensive because it quoted the very decision that the committee reports stated they meant to affirm. See Cosmair, 821 F.2d at 1090 (“A waiver of a right to file a charge is void as against public policy.”).

The Commission also asked the district court to enjoin CollegeAmerica from using the 2012 agreement to interfere with Potts’s right to file charges or cooperate with the Commission. App-25. This request was not overbroad either, because it tracks the language of § 626(f)(4): “No waiver may be used to justify interfering with the protected right of an employee to file a charge or participate in an investigation or proceeding conducted by the Commission.”

More important, CollegeAmerica fails to cite any authority for the proposition that a complaint or claim should be dismissed under rule 12(b)(6) if the relief that the plaintiff requests is overbroad. To the contrary, it is well established that the court’s focus in a rule 12(b)(6) motion should be on whether the complaint states a claim that would entitle the plaintiff to any relief, not on whether the claim would entitle the plaintiff to the specific relief that the plaintiff requested. See Doe v. U.S. Dep’t of Justice, 753 F.2d 1092, 1104 (D.C. Cir. 1985) (“[I]t need not appear that the plaintiff can obtain the specific relief demanded as long as the court can ascertain from the face of the complaint that some relief can be granted.”). The Fifth Circuit stated in Tauzin v. Saint Paul Mercury Indemnity Co., 195 F.2d 223 (5th Cir. 1952):

The courts have repeatedly said that there is no justification for dismissing a complaint for insufficiency except where it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of the claim pleaded. If the facts alleged in a complaint reveal that a plaintiff is entitled to any kind of relief, it is sufficient and should not dismissed.

Id. at 224; see also Doss v. S. Cent. Bell Tel. Co., 834 F.2d 421, 425 (5th Cir. 1987) (citing 5 C. Wright & A. Miller, Fed. Practice & Procedure § 1255 (1969) for proposition that “demand for improper remedy [is] not fatal if claim shows potential entitlement to different form of relief”); City of N.Y. v. A-1 Jewelry & Pawn, Inc., 247 F.R.D. 296, 353–54 (E.D.N.Y. 2007) (“[A] motion for failure to state a claim properly addresses the cause of action alleged, not the remedy sought. It is the court that will craft any remedy.”).

Conclusion

Under the voluntary-cessation doctrine, CollegeAmerica bore a heavy burden to show that its interference with Potts’s rights to file charges and cooperate with the Commission could not reasonably be expected to recur. The company did not satisfy that burden by relying on its statements in January and February 2014 or the statements in Gerber’s August 2014 affidavit. The district court therefore erred in dismissing the Commission’s claim as moot.

The company’s alternative argument—that the Commission failed to state a claim—should also be rejected because it relies on decisions addressing an employer’s failure to comply with § 626(f)(1), while the Commission here is alleging a violation of § 626(f)(4).

The Commission therefore respectfully asks this Court to reverse the district court’s dismissal order and remand for further proceedings.

Respectfully submitted,

[1] The Commission also argued in its brief that it had standing in April 2014 to sue CollegeAmerica alleging a violation of 29 U.S.C. § 626(f)(4). CollegeAmerica is not challenging the Commission’s standing. CollegeAmerica Br. at 12 n.3.

[2] See also App-80, counsel’s letter to the Commission, making the same distinction between having “never asserted” that the agreement waived Potts’s ADEA claims and “not currently alleg[ing]” that Potts violated the agreement by filing charges.

[3] CollegeAmerica’s argument in the pretrial order and in its brief (at 24) also demonstrates the company’s willingness to stretch the terms of the 2012 agreement to find a breach and interfere with Potts’s rights. Potts agreed in September 2012 to “direct any complaints or issues against CollegeAmerica . . . that may arise with disgruntled staff, students, or the public at large to CollegeAmerica’s toll free complaint number.” That is, if Potts became aware that someone else (a staff member, a student, or a member of the public) had a complaint or issue against the company, she agreed to “direct” that person to the company’s toll-free complaint number. The provision does not appear to apply to complaints or issues that Potts herself had, but only to complaints or issues that she learned that other people had (“complaints or issues . . . that may arise with disgruntled staff, students, or the public at large”). Yet CollegeAmerica argued in the pretrial order and in its brief that Potts breached this provision by communicating her own complaints about the company to the Commission without communicating them to the company first. App‑91–92; CA Br. at 24.

[4] Gerber’s second affidavit, which was submitted with CollegeAmerica’s reply in support of its motion to dismiss, stated that the company did not then, and would never, assert that the 2012 agreement waived Potts’s “otherwise unfettered right to file charges of discrimination and cooperate in any proceeding conducted by the EEOC” or state or local anti-discrimination agencies. App-89–90.

[5] In Brown, for instance, the state attorney general’s office had adopted an official policy stating that polygamists would not be prosecuted for criminal bigamy just for practicing polygamy. After the litigation was filed, the county prosecutor adopted a very similar policy. Brown, 822 F.3d at 1157–58, 1171. Moreover, the Brown plaintiffs had left Utah and moved to Nevada. Id. at 1172–73. In the other case, Winsness failed to show that he would again engage in conduct that might violate the statute. Winsness, 433 F.3d at 736.