Pharmaceutical Rep Overtime Compensation

Supreme Court Set Argument

editor — Fri, 03 Feb 2012 19:29:08 +0000

It’s official, Christopher v. Smithkline Beechum will be heard on April 16, 2012. It is the only matter on the calendar for the day and the argument will last one hour. On Monday all of the amicus for the petitioners will file their briefs. Four briefs will be filed in support of the reps including the United States of America that will join in supporting the reps. To see the amicus briefs go to the scotusblog page for the Christopher case. It may take a few days until they are uploaded to the site.

Opening Brief Filed in Supreme Court on Christopher

editor — Mon, 30 Jan 2012 22:10:12 +0000

The opening brief was filed in the United States Supreme Court in Christopher v. Smithkline Beecham. Kingsley & Kingsley appears as one of four counsel on the brief. Counsel of Record Thomas Goldstein took the lead in editing and finalizing the brief and will be arguing the case in front of the court in April. That will be his 27th argument before the high court. Respondent’s brief is due March 19th.

Warner Chilcot Sued for Unpaid Overtime

editor — Mon, 30 Jan 2012 21:59:42 +0000

Today, Warner Chilcot was sued by Joseph, Herzfeld, Hester & Kirschenbaum and Kingsley & Kingsley for unpaid overtime in the state of New York. In light of the Novartis settlement for $99m we expect to see a flurry of filing in the next few weeks. If you need legal assistance and you are a pharmaceutical representative please call 212-688-5640 or 888-500-8469. The complaint can be viewed here. Also a press release in Sacramento Bee is here.

News Reports on Novartis Settlement

editor — Wed, 25 Jan 2012 22:36:33 +0000

Wall Street Journal on Novartis
Associated Press on Novartis
Washington Post
FOX Business

Novartis Settles claims for $99m

editor — Wed, 25 Jan 2012 17:29:36 +0000

Last night it was reported that Novartis has settled its claims against the reps for a reported $99,000,000.00. My understanding is this will include all reps who opted in to the case previously and reps who worked in New York and California. This would represent the first major settlement of a pharmaceutical overtime case. It should be noted that their claim was settled prior to the Supreme Court weighing in on the issue. While the claims could be worth more, the lawyers for the reps had to take into consideration the risk of loss at the Supreme Court level. We believe the risk is relatively low, despite conventional wisdom of a pro-corporate court, becuase the court over the years has upheld agency action and given deference to it. We expect the same will occur here. Should the reps win in the Supreme Court, I would expect to see $250m or even larger numbers begin to emerge from some of the other companies. It is also conceivable that we will see settlements in the next few months in advance of the opinion as Big Pharma gets nervous and decides to get some closure and change their practices.

The Deference Trend in the Supreme Court

editor — Wed, 25 Jan 2012 16:57:54 +0000

Scotusblog had an interesting article about the deference jurisprudence in the United States Supreme Court. Ms. Frost seemed to indicated that Christopher v. Smithkline Beecham was the case for the court to reconsider Auer. Scalia seemed to suggest as much in Talk America last term. This is a bit inside baseball, but the primary concern of the deference analysis is whether Scalia can convince any of his colleagues to abandon Auer. There is no evidence to suspect that they will but Ms. Frost indicates that this case would be the perfect vehicle to accomplish this change. We hope they decline Ms. Frost’s invitation. The post can be read in full here.

CA Supreme Court Decides Harris

editor — Fri, 30 Dec 2011 00:32:59 +0000

This morning the CA Supreme Court issued its decision in Harris v. Superior Court. This case has relevance because the Bayer, Wyeth and Roche cases in the 9th Cir. were stayed pending Harris. By January 18th further briefs will be filed in the 9th determining the impact of Harris. The Court overruled the plaintiff’s motions for summary judgment. The California Supreme Court said in part, “The analysis in Bratt highlights the difficulty in relying on the particular role of employees in one enterprise to deduce a rule applicable to another kind of business.” This is helpful because Harris involves insurance adjusters. Here, we are dealing with detailers, a wholly different job and industry.

The court also said,

The essence of our holding is that, in resolving whether work qualifies as administrative, courts must consider the particular facts before them and apply the language of the statutes and wage orders at issue. Only if those sources fail to provide adequate guidance, as was the case in Bell II, is it appropriate to reach out to other sources.

We express no opinion on the strength of the parties’ relative positions. We merely hold that the Court of Appeal majority erred in its analysis.

Tom Goldstein to Argue GSK

editor — Wed, 28 Dec 2011 17:45:32 +0000

Thomas C. Goldstein of Goldstein & Russell has been retained by a group of lawyers handling the pharmaceutical litigation to brief and argue the case before the United States Supreme Court. He is the editor and founder of Scotusblog which monitors and catalogs all activities before the Supreme Court. He will be arguing his 27th time before the court in April for this case.

Based on Tom’s knowledge of the court he predicts we will likely be set for argument on April 16, 2012. A decision will come in May or June.

SCOTUS Agrees to Hear GSK

editor — Mon, 28 Nov 2011 16:22:08 +0000

This morning, the Supreme Court of the United States granted certiorari in the case of Christopher v. Smithkline Beechman regarding the issue of the outside sales exemption in the pharmaceutical industry. This means the high court will decide the issue once and for all and resolve the Circuit split between the 9th and the 2nd. Another issue the justices will consider is the degree of deference an agency must be afforded. In both the circuit court cases the Department of Labor had filed amicus briefs (friend of the court) in favor of the reps. The industry had and will continue to argue that these interpretations just parrot the statute and are thus entitled to no deference. This is a hard argument to swallow and while the 9th did adopt it, it seems unlikely that the high court would be persuaded by it. If the agency is accorded deference then the reps will be entitled to overtime. Scalia in an concurrence earlier this year (Talk America) criticized the use of so called Auer deference, but the other justices still seem to consider it good law. Oral argument on the case is likely to occur before the end of the current term in April.

Conference date set for GSK

editor — Tue, 01 Nov 2011 16:40:56 +0000

On November 22 , the United States Supreme Court will meet in conference to determine if Christopher v. Smithkline Beecham 635 F.3d 383 (9th Cir. 2011) will be heard by the court. Their decision will be released on November 28th here. For a case to be heard, only four justices are needed to vote in favor of hearing it. GSK only addresses the outside sales exemption under federal law.