California Supreme Court Denies Review

In a bizare ruling the Supreme Court of California denied Review.  Their decesion stated the following:

“The request, made pursuant to California Rules of court, rule 8.548, that this court decide a question of California law presented in a matter pending in the United States Court of Appeals for the Ninth Circuit is denied.  (See Ramirez v. Yosemite Water Co. (1999) 20 Cal.4th 785.)”

The Ramirez case was favorable to the plaintiff (it dealt with the sales exemption only) but did not really answer the questions the 9th Circuit posed.  It will be intresting to see what the 9th Circuit does now without any guidance from the Calfiornia Court system.  You would think based on the ruling above that the 9th Circuit has to reverse based on sales.  The question now is what it does with the administrative exemption which was not the subject of any orders by the courts in California and was not that significantly briefed or argued.

Expect the 9th Circuit to probably rule no earlier than later this year, perhaps even into 2010.

California Supreme Court Designates Case #

The California Supreme Court has designated S172832 as the case number in the D’Este v. Bayer matter which will settle the issue of sales and administrative exemptions in the industry.  This will be a hotly anticipated ruling by the court in the next 60 days as to whether they will formally accept the case.

You can view the docket of the case here and sign up for email updates.

http://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?dist=0&doc_id=1907570&doc_no=S172832

The 9th Circuit Punts to The California Supreme Court

Yesterday, the 9th Circuit Court of Appeals certified two questions for review to the California Supreme Court.

As we discussed previously we anticipated that the 9th would ask for guidance from the California Supreme Court to determine these issues of first impression.  The first question focuses on whether or not pharmaceutical representatives fall within the “outside sales exemption.”  The other question focuses on the administrative exemption and whether or not application is applicable there as well.  The California Supreme Court also is considering another case Harris v. Superior Court which addresses the first prong of the administrative exemption.  This question addresses the second prong.

Should the court affirm in Harris that may moot the administrative question here.  Even if Harris is reversed we believe we can prevail on the second prong in which case the exemption would not apply and the pharma reps would be entitled to significant overtime compensation going back at that time potentially 8-9 years.

US Supreme Court Rejects Wyeth’s Claims

In a hotly anticipated case, the United States Supreme Court rejected Wyeth’s claims that FDA approval of its device labeling preempted state law claims. (Wyeth v. Levine) In a similar case earlier last year where the Chief Justice had recused himself the court split 4-4.  It was anticipated this case would go for Wyeth 5-4, but instead in a 6-3 decision, the court rejected Wyeth’s claims.  Both Kennedy sided with the majority and Thomas wrote a concurring opinion adopting the result.

This case does not affect these overtime cases, but it was interesting to note that a major pharmaceutical company was denied attempting to fashion technical legal arguments to avoid liability.  In this case no such luck.  We hope the 9th Circuit will reject Wyeth’s arguments in these overtime cases as well.

http://www.supremecourtus.gov/opinions/08pdf/06-1249.pdf

Listen To 9th Circuit Oral Argument Here

The 9th Circuit posts its oral argument online.  Here is the link to the argument in the pharma cases.

http://www.ca9.uscourts.gov/media/view_subpage.php?pk_id=0000002814

We think it went very well.  It is unlikely the court will affirm on the sales exemption, however, they could affirm under the administrative exemption, they could reverse the decisions of lower court, or what seems like the most likely outcome, they could certify questions to the California Supreme Court to make the ultimate determination.

It could take several months before we have an answer.

Ninth Circuit to hear Bayer, Wyeth & Roche Appeals in February

On February 11, 2009 the Ninth Circuit Court of Appeals is scheduled to hear the appeal of the grant of Bayer, Wyeth & Roche’s summary judgement motions.  The issue on appeal in both cases is whether or not the outside sales exemption applies to their pharmaceutical representatives.  Our group looks forward to arguing this issue in front of the Court of Appeals and are optimistic that the court will find that no exemption applies.

Due to recent backlogs in the Ninth Circuit a decision will not be expected until later this year or potentially early 2010.

Boehringer Denied Permission to Take Appeal

In another well reasoned decesion Judge Arterton has denied defendant’s request to appeal its denial of summary judgment.  The case is scheduled to go to trial in the summer of 2009.

The order is below.

http://pharmarepovertime.com/wp-content/uploads/2009/01/https___ecfctduscourtsgov_cgi-bin_show_temp.pdf

Boehringer Loses Motion for Summary Judgment

In a landmark ruling, the Connecticut Federal Court denied defendant Boehringer Ingelheim’s motion for summary judgement.  Judge Janet Bond Arterton stated unequivocally that pharmacuetical sales representatives are not exempt under either the outside sales exemptions or the administrative exemptions as a matter of law.  We believe that this decision will be used as a model for other courts to follow including several anticipated appeals from the 9th Circuit.

A copy of the order is below.

http://pharmarepovertime.com/wp-content/uploads/2009/01/bi-sj-order.pdf

NY Court Certifies Pfizer Class

On July 31, 2008 Judge Alvin Hellerstein of the Southern District of New York certified a collective action pursuant to the Fair Labor Standards Act for Pfizer Pharmaceutical Reps. (See Order below for exact definition)  Concurrent with this motion, plaintiffs sought to certify a Pennsylvania, California, Wisconsin and Illinois sub-classes which were denied by the court.  While the federal claims survived, plaintiffs are hopeful to file new actions in each respective state to assert the claims that were denied.  If you worked for Pfizer in one of the states listed please contact us by filling out the form to the right.

Since defendant’s motion for summary judgement has been denied, this case will now be scheduled for trial.  Click below for order.

http://pharmarepovertime.com/wp-content/uploads/2009/01/3721_001.pdf

Pfizer’s Motion for Summary Judgment is Denied

On June 19, 2008, the Southern District of New York denied motions for summary judgement.  These motions concerned the outside sales exemption and their applicability to the drug industry.  This ruling insures and based on the judges comments from the bench that this case will proceed toward trial.  See the order below.

http://pharmarepovertime.com/wp-content/uploads/2009/01/3721_001.pdf