CA Supreme Court Decides Harris

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

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

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

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.

GSK agrees to SCOTUS review

GSK, hired Paul Clement, the former Solicitor General under President George W. Bush to represent its interests in the US Supreme Court.  Mr. Clement argued in GSK’s brief that even though GSK won in the 9th Circuit that the court should hear the case to resolve the split with the 2nd Circuit.  The Chamber of Commerce and PhRMA (the trade group for the pharmaceutical industry) also filed briefs on behalf of the industry asking the court to take the case.  Predictions are the court will determine if they will hear the case in December or January.  If one is placing a bet on this one, CW says they grant cert.  Only the sales exemption would be implicated in this case, not admin.

Abbott and Lily Argued Oct. 18th

The argument in the coordinated appeals was heard in Chicago yesterday.  We think the judges were very receptive to the reps point of view.  You can hear a poirtion of the argument here.  http://www.ca7.uscourts.gov/tmp/C90ORVPP.mp3 The opinion will likely be out in the next 3-6 months.