The Abbott case is set for trial in September. Based on recent experience in various discussions with counsel, settlement seems unlikely in any of these cases. The Abbott case is venued in Chicago. There is a Summary Judgment Motion pending by both sides on the exemption issues that will be ruled on in the next one to two months.
It was a surprising twist and turn in this long anticipated argument. Most of the lawyers on both sides had anticipated a knock down drag out brawl on the administrative exemption but lo and behold the panel wanted nothing of it. The focus of the argument was almost entirely on the sales exemption.
What this means is anyone’s guess but what is interesting about the sales exemption is that it is all an issue of law. If the court is likely to reverse on administrative exemption based on prior rulings of the 2nd circuit, under the first prong of the test, only sales will remain in our way. If the court then finds for plaintiffs on sales the cases are basically over, as the companies will have no defense to the claim except the nature of the damages.
We should know in a month to 6 months.
The lawyers for the various cases have been preparing their arguments for Friday. Three attorneys for the reps will argue. The Novartis case will hear from Jeremy Heisler for the Novartis reps as well as the lawyer from the Department of Labor. Schering Plough will follow, and Matthew Brinkerhoff will argue for the reps in that case.
We will keep our finger crossed and wish them all good luck.
The 2nd Circuit Court of Appeal moved the oral argument in the Novartis cases to February 19th. This case is the case where the Department of Labor has intervened as a friend of the court in favor of paying reps overtime. Also be sure to visit our main site at www.unpaidwages.com
The 2nd Circuit Court of Appeal in New York will hear oral argument in Novartis on February 16, 2010. That case involves issues of federal law and separate state claims under New York and California law. This is the case in which the Department of Labor has filed it friend of the court brief advocating on behalf of the reps. A decision could take as long as year to be rendered by the court once they have the matter submitted to them.
The key question that must be answered by you and by the courts in determining the merit of these claims is: HOW SCRIPTED ARE YOU?
At the end of the day the court are going to want to find out how much ability the reps had to make choices in how to approach a particular doctor and how much was dictated by company policy. While every job has a certain amount of discretion, it is our belief that any discretion in the job was primarily personality driven rather than any message that was being conveyed. In most companies we have found that various core messages were provided and a few detail pieces and then the rep could choose amongst the various “tools” to “sell” the various products. It is this author’s opinion that in almost all the cases the judge will see that the discretion if any was very limited and will not raise to the level of the administrative exemption. If this is so overtime will be owed for the unpaid time. This can go back 2-3 years under federal law and up to 6 years under New York law. Other states vary.
Any response is not intended to constitute legal advice. We will not have an attorney-client relationship with you unless and until we notify you in your writing that you are a class member or that we otherwise represent you. We are admitted to practice only in the following states: New York. California.
