UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
ANTHONY COULTRIP, et al., Plaintiffs, -against- PFIZER, INC., Defendant.
ECF Case
No. 06 Civ. 9952 (JCF) Consolidated with: 06 Civ. 15200 (JCF) 07 Civ. 4532 (JCF)
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TABLE OF CONTENTS PAGE NO.
TABLE OF AUTHORITES ....................................................................................................... iii-x PRELIMINARY STATEMENT .....................................................................................................1
PROCEDURAL BACKGROUND..................................................................................................4
Coultrip v. Pfizer..................................................................................................................4
Jeter v. Pfizer .......................................................................................................................5
Oblitas-Rios v. Pfizer ...........................................................................................................5
FACTS .............................................................................................................................................6
I. Pfizer ....................................................................................................................................6
II. Pharmaceutical Reps – Uniform Duties...............................................................................7
A. Policy Manuals.........................................................................................................8
B. Training and Supervision.........................................................................................8
C. The Call or “Detailing”..........................................................................................10
D. The Daily Schedule of a Rep .................................................................................13
ARGUMENT.................................................................................................................................15
I. THREE STATE LAW CLASSES SHOULD BE CERTIFIED ........................................15
A. The Proposed Classes Satisfy Rule 23(a) ..............................................................17
1. Numerosity - Rule 23(a)(1)........................................................................17
2. Common Questions of Law or Fact B Rule 23(a)(2) .................................18
a. The Law is Common......................................................................20
i. Outside Sales Exemption ...................................................20
ii. Administrative Exemption .................................................22
First Prong: Work Directly Related to Management or General Business Operations...................24
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Second Prong: Discretion and Independent Judgment Concerning Matters of Significance..................26
b. Common Questions........................................................................27
3. Typicality - Rule 23(a)(3) ..........................................................................29
4. Adequacy - Rule 23(a)(4) ..........................................................................30
B. The Proposed Classes Satisfy Rule 23(b)(3) .........................................................30
1. Common Legal or Factual Issues Predominate .........................................31
2. A Class Action Is Superior to Other Methods of Adjudication .................34
a. Combining State Law Opt-Out Classes with a Nationwide FLSA Opt-In Action Does Not Undermine Superiority...................................................................34
b. The Proposed Classes Are Manageable.........................................36
C. The Court’s Prior Ruling is Not a Bar ...................................................................37
II. COUNSEL SHOULD BE DESIGNATED PURSUANT TO RULE 23(g)......................38
CONCLUSION..............................................................................................................................39
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TABLE OF AUTHORITIES PAGE NO(s)
CASES
Alcantara v. CNA Mgmt., 264 F.R.D. 61 (S.D.N.Y. 2009) ........................................................................................ 35
Amchem Prods, Inc. v. Windsor, 521 U.S. 591 (1997).......................................................................................................... 29
Ansoumana v. Gristede’s Operating Corp., 201 F.R.D. 81 (S.D.N.Y. 2001) ........................................................................................ 35
Ansoumana v. Gristede’s Operating Corp., 201 F.R.D. 81 (S.D.N.Y. 2001) ........................................................................................ 32
Belbis v. County of Cook, 01-cv-6119, 2002 WL 31600048 (N.D. Ill. Nov. 18, 2002) ............................................ 32
Bennett v. Progressive Corp., 225 F. Supp. 2d 190 (N.D.N.Y.2002)............................................................................... 21
Berwecky v. Bear, Sterns & Co., Inc., 197 F.R.D. 65 (S.D.N.Y.2000) ......................................................................................... 18
Boucher v. Syracuse Univ., 164 F.3d 113 (2d Cir. 1999).............................................................................................. 37
Brickey v. Dolencorp, 244 F.R.D. 176 (W.D.N.Y. 2007)..................................................................................... 19
Brzychnalski v. Unesco, Inc., 35 F. Supp. 2d 351 (S.D.N.Y. 1999)................................................................................. 35
Caridad v. Metro-North Commuter R.R., 191 F.3d 283 (2d Cir. 1999).............................................................................................. 16
Casale v Kelly, 257 F.R.D. 396.................................................................................................................. 39
Chan v. Triple 8 Palace, 03-cv-6048, 2004 WL 1161299 (S.D.N.Y. 2004) ............................................................ 34
Cohen v. Gerson Lehrman Group, 686 F. Supp. 2d 317 (S.D.N.Y. 2010)............................................................................... 35
Combs v. Skyriver Communications, Inc., 159 Cal. App. 4th 1242 (2008) ......................................................................................... 23
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Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473 (2d Cir. 1995)................................................................................................ 17
Coultrip v. Pfizer, No. 06 Civ. 9952 (JCF), 2011 WL 1219365 (S.D.N.Y Mar. 24, 2011) ........................................... 4, 5, 9, 30, 39, 40
Cromer Finance Ltd. v. Berger, 205 F.R.D. 113 (S.D.N.Y. 2001) ..................................................................................... 30
Cruz v. Hook-Superx, LLC, 09-cv-7717, 2010 WL 3069558 (S.D.N.Y. Aug. 5, 2010).................................................................... 35
Cutler v. Perales, 128 F.R.D. 39, 45 (S.D.N.Y. 1989) .................................................................................. 30
D.D. v. New York City Dep't of Educ., No. 03-CV-2489 (DGT), 2004 WL 633222 (E.D.N.Y., Mar. 30, 2004)................................................................... 39
Damassia v. Duane Reade, Inc., 250 F.R.D. 152 (S.D.N.Y. 2008) (Lynch, J.).............................................................. 32, 35
Danieli v. IBM, 08-cv-3688, 2009 WL 6583144 (S.D.N.Y. Nov. 16, 2009).................................................................. 35
Daniels v. City of New York, 198 F.R.D. 409 (2001) ...................................................................................................... 18
De Asencio v. Tyson Foods, Inc., 342 F.3d 301 (3d Cir. 2003).............................................................................................. 36
Debejian v. Atl. Testing Labs., Ltd., 64 F. Supp. 2d 85 (N.D.N.Y. 1999).................................................................................. 21
Donovan v. Burger King Corp., 675 F.2d 516 (2d Cir. 1982).............................................................................................. 32
Duchene v. Michael L. Cetta, Inc., 244 F.R.D. 202 (S.D.N.Y. 2007) ...................................................................................... 35
Ebbert v. Nassau County, 05-cv-5445, 2007 WL 2295581 (E.D.N.Y. Aug. 9, 2007).................................................................... 35
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Eicher v. Advanced Business Integrators, Inc., 151 Cal. App. 4th 1363 (2007) ........................................................................................ 23
Ervin v. OS Rest. Servs., Inc., No. 09-3029, --- F.3d ----, 2011 WL 135708 (7th Cir. Jan. 18, 2011).................................................... 36
Gardner v. Western Beef Props., 07-cv-2345, 2008 WL 2446681 (E.D.N.Y. June 17, 2008) .................................................................. 35
Gonzalez v. Nicholas Zito Racing Stable, Inc., 04-cv-22, 2008 WL 941643 (E.D.N.Y. March 31, 2008) ................................................................. 35
Gorey v. Manheim Servs. Corp., -- F. Supp. 2d --, 2011 WL 1832562 (S.D.N.Y. May 13, 2011)....................................... 22
Gortat v. Capala Bros., 07-cv-3629, 2009 WL 3347091 (E.D.N.Y. Oct. 16, 2009)................................................................... 35
Guzman v. VLM, Inc., 07-cv-1126, 2008 WL 597186 (E.D.N.Y. Mar. 2, 2008)...................................................................... 35
Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998) .......................................................................................... 18
Heffelfinger v. Elec. Data Sys. Corp., 580 F. Supp. 2d 933 (C.D. Cal. 2008) .............................................................................. 23
Iglesias-Mendoza v. La Belle Farm, Inc., 239 F.R.D. 363 (S.D.N.Y. 2007) ................................................................................ 19, 35
In Re Agent Orange Prod. Liab. Litig., 818 F.2d 145 , 166-67 (2d Cir. 1987) ............................................................................... 18
In re Diamond Shamrock Chem. Co., 725 F.2d 858 (2d Cir. 1984).............................................................................................. 37
In re Farmers Insur. Exch. Claims Rep. Overtime Litig., MDL 1439, 2003 WL 23669376 (D. Or. May 19, 2003) ..................................................................... 37
In re Initial Pub. Offering Sec. Litig. (“IPO”), 471 F.3d 24 (2d Cir. 2006)................................................................................................ 15
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In re Initial Pub. Offering Sec. Litig., 483 F.3d 70 (2nd Cir. 2006).............................................................................................. 38
In re Methyl Tertiary Butyl Ether (“MTBE”) Prod. Liab. Litig., 241 F.R.D. 435 (S.D.N.Y. 2007) ...................................................................................... 16
In re Milos Litig., 08-cv-6666, 2010 WL 199688 (S.D.N.Y. Jan. 11, 2010) ..................................................................... 35
In re Nasdaq Market-Makers Antitrust Litig., 169 F.R.D. 493 (S.D.N.Y. 1996) ...................................................................................... 31
In re Nassau County Strip Search Cases, 461 F.3d 219 (2d Cir. 2006)........................................................................................ 33, 34
In re Nigeria Charter Flights Contract Litig., 233 F.R.D. 297 (E.D.N.Y. 2006) ...................................................................................... 36
In re Novartis Wage and Hour Litigation, 611 F.3d 141 (2d Cir. 2010)....................................................................................... passim
In re NTL, Inc. Sec. Litig., 02-cv-3013, 2006 WL 330113 (S.D.N.Y. Feb. 14, 2006)..................................................................... 18
In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124 (2d Cir. 2001), overruled on other grounds by Brown v. Kelly, 609 F.3d 467 (2d Cir. 2010) 31, 33, 36, 37
Ingles v. Toro, No. 01 Civ. 8279 (DC), 2003 WL 402565 (S.D.N.Y. Feb. 20, 2003)..................................................................... 39
Jankowski v. Castaldi, 01-cv-0164, 2006 WL 118973 (E.D.N.Y. Jan. 13, 2006) .............................................................. 32, 35
Jones v. Ford Motor Credit Co., 358 F.3d 205 (2d Cir. 2004).............................................................................................. 37
Krichman v. J. P. Morgan Chase & Co., 06-cv-15305, 2008 WL 5148769 (S.D.N.Y. Dec. 8, 2008) .................................................................... 35
Kuebel v. Black & Decker, Inc., -- F.3d --, 2011 WL 1677737 (2d Cir. May 5, 2011)........................................................ 20
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Ladegaard v. Hard Rock Concrete Cutters, Inc., 00-cv-5755, 2004 WL 1882449 (N.D. Ill. Aug. 18, 2004) ............................................................. 24, 32
Lee v. ABC Carpet & Home, 236 F.R.D. 193 (S.D.N.Y. 2006) ................................................................................ 32, 35
Marisol A. v. Giuliani, 126 F.3d 372 (2d Cir. 1997)........................................................................................ 16, 18
Martin v. Cooper Elec. Supply Co. 940 F.2d 896 (3d Cir. 1991)............................................................................................. 25
Mascol v. E & L Transp., 03-cv-3343, 2005 WL 1541045 (E.D.N.Y. June 29, 2005) .................................................................. 35
McBean v. City of New York, 260 F.R.D. 120 (S.D.N.Y. August 2009).......................................................................... 39
McBean v. City of New York, No. 02 Civ. 5426 (GEL), 2007 WL 2947448 (S.D.N.Y. Oct. 5, 2007) ..................................................................... 39
Medapalli v. Maximus, Inc., 06-cv-2774, 2008 WL 958045 (E.D.Cal. April 8, 2008) ...................................................................... 23
Mendoza v. Casa De Cambio Delgado, Inc., 07-cv-2579, 2008 WL 3399067 (S.D.N.Y. Aug. 12, 2008).................................................................. 35
Mentor v. Imperial Parking Sys., 246 F.R.D. 178 (S.D.N.Y. 2007) ...................................................................................... 35
Morrison v. Staples, Inc., 08-cv-616, 2008 WL 4911156 (D. Conn. Nov. 13, 2008) .................................................................. 35
Myers v. Hertz Corp., 624 F.3d 537 (2d Cir. 2010).............................................................................................. 38
Noble v. 93 Univ. Place Corp., 224 F.R.D. 330 (S.D.N.Y. 2004) ...................................................................................... 33
O’Brien v. Encotech Constr. Servs., 203 F.R.D. 346 (N.D. Ill. 2001)........................................................................................ 32
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Orphanos v. Charles Indus., 95-cv-4039, 1996 WL 437380 (N.D. Ill. July 29, 1996)....................................................................... 24
Perkins v. S. New Eng. Tel. Co., 07-cv-967, 2009 WL 3754097 (D. Conn. Nov. 4, 2009) .................................................................... 35
Ramirez v. Yosemite Water Co., Inc., 20 Cal. 4th 785 (1999) ...................................................................................................... 21
Reiseck v. Universal Commc’ns of Miami, Inc., 591 F.3d 101 (2d Cir. 2010)........................................................................................ 20, 25
Robinson v. Metro-North Commuter R.R., 267 F.3d 147 (2d Cir. 2001)........................................................................................ 29, 37
Robinson-Smith v. Gov’t Emps. Ins. Co., 323 F. Supp. 2d 12 (D.D.C. 2004), rev’d on unrelated grounds, 590 F.3d 886 (D.C. Cir. 2010) ............................................ 24
Romero v. Producers Dairy Foods, Inc., 235 F.R.D. 474 (E.D. Cal. 2006) ................................................................................ 21, 33
Ruggeri v. Boehringer Ingelheim Pharmaceuticals, Inc., 585 F. Supp. 2d 254 (D. Conn. 2008)......................................................................... 25, 26
Scholtisek v. Eldre Co., 697 F. Supp. 2d 445 (W.D.N.Y. 2010) ....................................................................... 22, 35
Scholtisek v. Eldre Corp., 697 F. Supp. 2d 445 (W.D.N.Y. 2010) ............................................................................. 21
Scott v. Aetna Servs., 210 F.R.D. 261 (D. Conn. 2002)....................................................................................... 35
Scott Wetzel Servs. Inc. v. New York State Bd. of Indus. Appeals, 252 A.D.2d 212 (3d Dep’t 1998) ................................................................................ 21, 22
Sharif v. N.Y. State Educ. Dept., 127 F.R.D. 84 (S.D.N.Y. 1989) ........................................................................................ 16
Smellie v. Mount Sinai Hosp., 03-cv-0805, 2004 WL 2725124 (Nov. 29, 2004).................................................................................. 32
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Tierno v. Rite Aid Corp., 05-cv-02520, 2006 WL 2535056 (N.D. Cal. Aug. 31, 2006) ................................................................. 32
Torres v. Gristede’s Operating Corp., 04-cv-3316, 2006 WL 2819730 (S.D.N.Y. Sept. 28, 2006).................................................................. 35
Toure v. Cent. Parking Sys., 05-cv-5237, 2007 WL 2872455 (S.D.N.Y. Sept. 28, 2007)................................................................. 35
Trinidad v. Breakaway Courier Sys., Inc., 05-cv-4116, 2007 WL 103073 (S.D.N.Y. Jan. 12, 2007) ............................................................... 18, 35
Velez v. Majik Cleaning Serv., Inc., 03-cv-8698, 2005 WL 106895 (S.D.N.Y. Jan. 19, 2005) ............................................................... 32, 33
Wang v. Chinese Daily News, Inc., 623 F.3d 743 (9th Cir. 2010) ............................................................................................ 36
Westerfield v. Washington Mut. Bank, 06-cv-2817, 2007 WL 2162989 (E.D.N.Y. July 26, 2007)............................................................. 18, 35
Wilder v. Bernstein, 499 F. Supp. 980, 992 (S.D.N.Y. 1980)............................................................................ 18
Willix v. Healthfirst, Inc., 07-cv-1143, 2009 WL 6490087 (E.D.N.Y. Dec. 3, 2009) .................................................................... 35
Wraga v. Marble Lite, Inc., 05-cv-5038, 2006 WL 2443554 (E.D.N.Y. Aug. 22, 2006).................................................................. 35
Yon v. Positive Connections, Inc., 04-cv-2680, 2005 WL 628016 (N.D.Ill. Feb. 2, 2005) ......................................................................... 32
Zheng v.Liberty Apparel Co., 355 F.3d 61 (2d Cir. 2003)................................................................................................ 20
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OTHER AUTHORITIES
29 C.F.R. §541.......................................................................................... 19, 20, 22, 23, 24, 25, 26
29 U.S.C. § 203............................................................................................................................. 20
29 U.S.C. § 213....................................................................................................................... 20, 22
8 Cal. Code Regs. §§ 11040(1)(A)(2)........................................................................................... 23
C.F.R. § 541.500 ........................................................................................................................... 21
Cal. Code Regs. tit. 8, § 11010 ..................................................................................................... 21
Cal. Code Regs. tit. 8, § 11040 ............................................................................................... 20, 23
Cal. Labor Code § 1171 ................................................................................................................ 20
California Industrial Welfare Commission Wage Order (“Wage Order”) 4-2001 ........... 20, 21, 23
Fair Labor Standards Act of 1938, 29 U.S.C. § 201, et seq. (“FLSA”)............................................................................. passim
Fed. R. Civ. P. 23................................................................................................................... passim
Illinois Minimum Wage Law (“IMWL”), 820 Ill. Rev. Stat. 105 ........................................................................................... 20, 21, 23
N.Y. Comp. Codes R. & Regs. tit. 12, § 142................................................................................ 20
New York Labor Law, § 190 ........................................................................................................ 16
New York Labor Law, § 650 ........................................................................................................ 16
Herbert Newberg & Alba Conte, Newberg on Class Actions, 3:05 (4th ed. 2002) ...................... 17
U.S. Dept. of Labor Wage and Hour Letter, 1997 WL 972382 (Oct. 20, 1997) .......................... 27
U.S. Dept. of Labor Wage and Hour Letter (FLSA 2006-27), 2006 WL 2792441 (July 24, 2006) ................................................................................... 27
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PRELIMINARY STATEMENT
Plaintiffs Anthony Coultrip, Benaias Albarran, Amanda Boal, Fernando Oblitas-
Rios, Angela Cohen, and Ayisha Jeter (“Plaintiffs”) are former employees of Pfizer, Inc.
(“Defendant” or “Pfizer”) who were not paid overtime wages as required by law. Plaintiffs,
along with approximately 3,000 other current and former Pfizer pharmaceutical representatives
(“Reps”)1 throughout the United States, assert claims under the Fair Labor Standards Act of
1938, 29 U.S.C. § 201, et seq. (“FLSA”).
In addition to bringing claims under the FLSA, Plaintiffs also assert state law
claims under New York, California, and Illinois overtime laws, on behalf of themselves and
others similarly situated pursuant to Fed. R. Civ. P. (“Rule”) 23. Specifically, Plaintiffs
Albarran, Boal, and Oblitas-Rios assert claims under California law for November 2, 2002,
onward. Plaintiffs Cohen and Jeter assert claims under New York Labor Law for November 15,
2000, onward. And Plaintiff Coultrip asserts claims under Illinois law from October 19, 2003,
onward.
This case is well suited for Rule 23 class treatment. Plaintiffs’ overarching
common claim – that Pfizer misclassified Reps as exempt and failed to provide overtime
compensation – should be adjudicated on a class-wide basis. All Pfizer Reps regularly worked
more than 40 hours per week in California, New York, and/or Illinois. And none were paid
overtime because Pfizer uniformly misclassifies Reps as exempt from all overtime requirements
under FLSA and all similar state laws.
1 During the period relevant to this action, Pfizer variously identified Pharmaceutical Reps as “Healthcare Representative,” “Professional Healthcare Representative,” “Therapeutic Specialty Representative,” “Institutional Healthcare Representative,” “Specialty Healthcare Representative,” “Specialty Representative,” and “Sales Representative.” All current and former Pfizer employees in these positions or other similar positions are hereinafter referred to collectively as “Pharmaceutical Reps” or “Reps.”
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Although Pfizer assigns and/or refers to Reps by different job titles (supra n.1),
all Reps perform the same basic tasks and are subject to identical company wage policies and
practices. The primary duty of all Reps is to visit medical professionals (“Doctors”) and urge
them to prescribe Pfizer products. The interactions between all Reps and the Doctors they visit
are severely constrained in two fundamental ways. First, because pharmaceutical products are
controlled substances, availability and use are tightly controlled and strictly regulated by the
United States Food and Drug Administration (“FDA”). When hyping Pfizer products, all Reps
are strictly prohibited from conveying any information, whether orally or in writing, unless that
information has been pre-approved by Pfizer so as not to run afoul of any federal laws or FDA
regulations. Second, Pfizer’s corporate management strictly mandates the methods Reps must
use to attempt to persuade Doctors to prescribe Pfizer products. All Reps are required to use the
interactive techniques developed by Pfizer management and drummed into the Reps through
regular meetings and strict supervision by District and Regional managers. There are no
exceptions.
Because all Reps share the same primary job duties, they are similarly situated
with respect to the central issue in this case: whether or not their primary job duties bring them
within any of the narrow exemptions from overtime requirements under the FLSA, or under the
laws of California, New York, or Illinois, which are materially indistinguishable from one
another, and from the FLSA. Indeed, there is no evidence that Pfizer ever even considered the
possibility that the thousands of Reps who hit the streets every day to tout Pfizer products should
be classified as anything but a group. Pfizer’s decision to uniformly classify Reps is therefore
further evidence that Pfizer believes Reps perform the same primary job duties.
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The Rule 23(a) prerequisites are handily met because (1) the proposed classes
have hundreds of members, (2) the claims and defenses involve dozens of common factual and
legal issues concerning Defendant’s failure to pay overtime pay due under state law, (3)
Plaintiffs’ claims and circumstances are the same as the absent class members they seek to
represent – all have been injured by Defendants’ conduct and all will benefit from the relief
sought, and (4) Plaintiffs and their counsel will vigorously prosecute this action. Rule 23(b)(3) is
satisfied because common issues of fact and law predominate, including whether Pfizer can meet
its burden of proving that Reps qualify as exempt from overtime pay under the laws of
California, New York, and Illinois.
While application of the exemptions at issue in this case turn, in part, on the
nature of the work performed by Reps, it also turns on Pfizer’s overall operations and the role
Reps play in those operations. For example, not long ago, both sides agreed that the applicability
of the outsides sales person exemption was subject to summary resolution because the key facts
were undisputed: (1) the nature of the primary work performed by Reps, and (2) their role, or
lack thereof, within Pfizer’s sales operations. Given this reality at Pfizer and within the
pharmaceutical industry as a whole, it is not surprising that in a similar case, In re Novartis Wage
and Hour Litigation, 611 F.3d 141 (2d Cir. 2010), the parties stipulated to two Rule 23 class
actions under California and New York law, combined with a nationwide FLSA action.
Indeed, the amenability of such an action to uniform, efficient, class-wide
disposition is highlighted by the Second Circuit’s ruling in Novartis that pharmaceutical
representatives working for Novartis are not exempt from the FLSA, California, or New York
laws: (1) as outside salespersons because they do not sell Novartis products; or (2) as
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administrative employees because whatever discretion they may have does not concern matters
of significance. Id. at 149-57.
There is no reason this Court ought not reach a similarly efficient resolution of the
thousands of claims now asserted in this action.
PROCEDURAL BACKGROUND
In this recently consolidated action, Plaintiffs seek redress for Defendant Pfizer’s
violations of the FLSA and state wage and hour laws. This Court granted Plaintiffs’ motion to
consolidate the three related cases on March 24, 2011. Coultrip v. Pfizer, No. 06 Civ. 9952
(JCF), 2011 WL 1219365 (S.D.N.Y Mar. 24, 2011).
Coultrip v. Pfizer: Plaintiffs in the first of the three now consolidated cases,
Coultrip v. Pfizer, No. 06 Civ. 9952 (JCF) (filed on October 19, 2006 and amended November
17, 2006 to add California claims), asserted claims under the FLSA and the laws of Illinois,
California, Pennsylvania, and Wisconsin. Id. at *1. The federal claims were brought as
nationwide collective claims and the state law claims were brought as class claims pursuant to
Rule 23, with Plaintiff Coultrip as the putative representative of an Illinois Class and Plaintiff
Albarran as the proposed representative of a California Class. Id.
In August 2007, the Coultrip Plaintiffs filed a motion to certify four state law
Rule 23 class actions (Illinois, California, Pennsylvania, and Wisconsin) and a nationwide FLSA
collective action. Id. Thereafter, Pfizer moved for summary judgment on its affirmative defense
that Reps cannot invoke the protections of the FLSA because they fit plainly and unmistakably
within the FLSA exemption for outside salespersons. The Coultrip Plaintiffs cross-moved for
summary judgment on the same issue. In June 2008, Judge Hellerstein denied both motions for
summary judgment without resolving any issues of fact or law. Id.
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In July 2008, Judge Hellerstein granted in part and denied in part the motion to
certify the class and FLSA actions in a summary order, allowing conditional certification of the
FLSA collective action, but denying plaintiffs’ motion to certify four state law based class
actions under Rule 23. “At oral argument, Judge Hellerstein explained that he believed potential
class members would be confused if he simultaneously certified opt-in and opt-out classes;
however, he explicitly allowed for the possibility that collective action plaintiffs could file
individual state law claims.” Id. The parties in Coultrip consented to this Court’s jurisdiction
for all purposes in May 2009. Coultrip Dkt. No. 622.
Jeter v. Pfizer: On November 16, 2006, Plaintiff Jeter filed a class action
complaint in New York State Supreme Court, alleging that Pfizer failed to pay her, and others
similarly situated who had worked for Pfizer in New York, for overtime work under New York
law. Coultrip, 2011 WL 1219365, at *2. Pfizer removed the case, pursuant to 28 U.S.C. §
1332(d)(2), to this Court on December 15, 2006, and the action was assigned to Judge
Hellerstein. Coultrip, 2011 WL 1219365, at *2; Jeter Dkt. No. 1. The parties in Jeter consented
to this Court’s jurisdiction for all purposes on November 5, 2010. Jeter Dkt. No. 18.
Oblitas-Rios v. Pfizer: On November 1, 2006, Plaintiff Oblitas-Rios brought suit
against Pfizer in California Superior Court, alleging claims under California wage and hour law.
On December 8, 2006, Pfizer removed the case to the United States District Court for the
Southern District of California. Oblitas-Rios Dkt. No. 1. The case was subsequently transferred
to this Court on May 30, 2007. Coultrip, 2011 WL 1219365, at *2. The parties in Oblitas-Rios
consented to this Court’s jurisdiction for all purposes on November 5, 2010. Oblitas-Rios Dkt.
No. 21.
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FACTS
Pfizer uniformly and categorically misclassifies all Pharmaceutical Reps as
“exempt” from the FLSA’s and state law’s overtime-pay requirements, thus depriving them of
overtime wages. See generally Ex. 10, First Consolidated Complaint; Plaintiffs’ Declarations
(Exs. 1-9).2
I. Pfizer
Pfizer is one of the largest pharmaceutical companies in the world. It is a multi-
national, publicly traded company with over 110,000 employees. Ex. 30 (Pfizer 2010 Financial
Report at 34). It generated over $67.8 Billion in revenues in 2010 alone. Id. at 2.
This case concerns the sales or field force within Pfizer’s U.S. Pharmaceuticals
division (“Field Force”). From top to bottom, the Field Force consists of: (1) an Executive Vice-
President in charge of Sales for the U.S.; (2) a handful of Senior Vice-Presidents; (3) Area Vice-
Presidents; (4) Directors of Area Operations; (5) many Regional Managers; (6) scores of District
Managers (“DMs”); and (7) thousands of Pharmaceutical Reps. Ex. 16 (Friedman Dep. 16-18).
Reps, as the lowest level employee in the Field Force, have no supervisory authority and do not
make, affect, or implement Pfizer policy. Ex. 1 ¶¶ 48-49; Ex. 2 ¶¶ 48-49; Ex. 3 ¶¶ 45-46; Ex. 4
¶¶ 47-48; Ex. 5 ¶¶ 56-57; Ex. 6 ¶¶ 44-45; Ex. 7 ¶¶ 46-47; Ex. 8 ¶¶ 47-48; Ex. 9 ¶¶ 47-48.
As of 2007, there were approximately 7,000 to 8,000 Reps in the Field Force. Ex.
15 (Lewis Dep. 61). Those Reps are organized geographically into districts. There are typically 2 Unless otherwise noted, all exhibits are attached to the Declaration of Elizabeth S. Saylor, dated June 9, 2011. Because so many of the issues in this case are not in dispute, Plaintiffs rely heavily on Pfizer’s written material, Pfizer’s high-level managers’ statements during depositions, and Pfizer’s admissions as part of the summary judgment motion. The declarations of named plaintiffs in this action, however, also support almost all the facts set forth below, including their observation, based on interactions with thousands of other Reps, that all Reps have the same primary job duties and that all these duties are tightly controlled and structured. Ex. 1 (Higgs Decl. ¶¶ 6-7, 9-10); Ex. 2 (Chenault Decl. ¶¶ 6-7, 9-10); Ex. 3 (Albarran Decl. ¶¶ 5-6, 8-9); Ex. 4 (Hadley Decl. ¶¶ 6-7, 9-10); Ex. 5 (Jeter Decl. ¶¶ 12-13, 15-16); Ex. 6 (Cohen Decl. ¶¶ 6-7, 9-10); Ex. 7 (Oblitas-Rios Decl. ¶¶ 5-6, 8-9); Ex. 8 (Coultrip Decl. ¶¶ 6-7, 9-10); Ex. 9 (Boal Decl. ¶¶ 5, 6-7). For purposes of readability, when referring to these declarations (Exs. 1-9), we do not include the plaintiffs’ names.
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10-12 Reps per district. Each district is managed by a DM. Ex. 17 (Hipwell Dep. 22, 24-25, 27,
43-44). There are typically anywhere from 8-10 districts in a Region. Each Region is managed
by a Regional Manager and an Assistant Regional Manager. Id. This structure – Regional
Managers who supervise DMs who in turn supervise Reps – has remained unchanged for many
years. Id.
II. Pharmaceutical Reps – Uniform Duties
Pfizer’s Reps all perform the same primary duties and functions. Ex. 1 ¶¶ 6-7;
Ex. 2 ¶¶ 6-7; Ex. 3 ¶¶ 5-6; Ex. 4 ¶¶ 6-7; Ex. 5 ¶¶ 12-13; Ex. 6 ¶¶ 6-7; Ex. 7 ¶¶ 5-6; Ex. 8 ¶¶ 6-7;
Ex. 9 ¶¶ 6-7. A Rep’s primary duty is to provide company-approved information about
Defendant’s pharmaceutical products to Doctors. Id.; Ex. 26 (Rogers Dep. 51-52 (“[Reps] are
part of the sales process in that they educate – they educate the physician and tell him the
benefits of the products.”). Though the Field Force has undergone some restructuring during the
time period relevant to this case (2000 to the present), this primary job duty has remained
unchanged. Ex. 17 (Hipwell Dep. 100-102); Ex. 1 ¶ 3; Ex. 2 ¶¶ 3, 7; Ex. 3 ¶¶ 2-3; Ex. 4 ¶ 3; Ex.
5 ¶ 8; Ex. 6 ¶ 3; Ex. 7 ¶¶ 2-3; Ex. 8 ¶ 3; Ex. 9 ¶¶ 2-3.
To carry out their duties, all Reps meet with Doctors and deliver Pfizer’s “core
message” through the use of visual aids provided by Pfizer. Ex. 1 ¶¶ 20-21; Ex. 2 ¶¶ 20-21; Ex.
3 ¶¶ 19-20; Ex. 4 ¶¶ 16, 20-21; Ex. 5 ¶¶ 26-27; Ex. 6 ¶¶ 20-21; Ex. 7 ¶¶ 18-19; Ex. 8 ¶¶ 20-21;
Ex. 9 ¶¶ 20-21. All Reps are instructed to leave samples of the Pfizer product they are
promoting at least 80% of the time they meet with a Doctor. Ex. 31. All Reps are also required
to frequently arrange and attend speaker programs for Doctors in their territory. Ex. 1 ¶ 47; Ex.
2 ¶ 36; Ex. 3 ¶ 35; Ex. 4 ¶ 35; Ex. 5 ¶ 43 ; Ex. 6 ¶ 31; Ex. 7 ¶ 34; Ex. 8 ¶ 35; Ex. 9 ¶¶ 35-36; Ex.
19 (Orange Guide at B1, B7-B12). All Reps are strictly prohibited from discussing products or
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diseases with the end-users of Pfizer’s products: patients. Ex. 28 (Def. 56.1 Resp. ¶¶ 12, 57). In
short, as Pfizer conceded in its motion for summary judgment, the primary duties of all Reps are
uniform. See, e.g., Ex. 48 (Def. 56.1 Stat. ¶ 10 (describing the “major duties of a sales
representative” in one paragraph and making no distinctions based on position, experience, or
geographic location)).
A. Policy Manuals
Pfizer’s strict policies are communicated to employees in many ways. One is
through manuals such as Pfizer Rules & Regulations: Field Guide (“the Orange Guide”) that all
Reps receive. Exs. 18-19; see also Ex. 17 (Hipwell Dep. 215 (Pfizer’s “Orange Guide” is the
“bible on the laws that govern the industry” “specifically for the sales force.”)). The policies
contained in the Orange Guide are universally applicable to all Pfizer Reps in the United States.
Ex. 28 (Def. 56.1 Resp. ¶ 45). Reps are subject to poor performance reviews and discipline up to
termination for failing to follow these policies. Id. ¶ 46.
The conduct and nature of all interactions between Reps and Doctors is also
dictated by Pfizer Policies on Business Conduct (the “Blue Guide”). Ex. 20. In addition to the
Orange and Blue Guides, all headquarters executives are obligated to follow the rules in the two
hundred and twenty-four page Headquarters Guide (the “White Guide”.) Ex. 21.
B. Training and Supervision
Pfizer trains its Reps extensively to ensure they all strictly adhere to Pfizer’s
uniform policies. Ex. 15 (Lewis Dep. 115-117). All new Reps are required to attend
standardized training programs at one of Pfizer’s several regional offices and/or a hotel in Rye
Brook, New York. At these trainings, Reps are given detailed information on the use and
benefits of the products they will be promoting, and are taught exactly how to deliver this
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information to Doctors according to Pfizer’s rigid, inflexible standards. Ex. 1 ¶¶ 9-12; Ex. 2 ¶¶
11-14; Ex. 3 ¶¶ 10-13; Ex. 4 ¶¶ 11-13; Ex. 5 ¶¶ 17-18; Ex. 6 ¶¶ 9-12; Ex. 7 ¶ 10; Ex. 8 ¶¶ 9-14;
Ex. 9 ¶¶ 9-14.
Following this initial training, Reps continue to receive regular training on how to
interact with Doctors. Through monthly “ride alongs,” in which DMs accompany a Rep for a
day while he/she calls on Doctors, Reps receive regular feedback on their presentations. Ex. 1 ¶¶
14-16; Ex. 2 ¶¶ 12-13; Ex. 3 ¶¶ 11, 13; Ex. 4 ¶¶ 13, 16; Ex. 5 ¶¶ 18-19, 22-23; Ex. 6 ¶¶ 13-17;
Ex. 7 ¶¶ 13-15; Ex. 8 ¶ 13; Ex. 9 ¶¶ 13-14; see also Ex. 15 (Lewis Dep. 112); Ex. 17 (Hipwell
Dep. 101, 106). DMs are expected to ride-along with each Rep they supervise once a month, at
minimum, to provide quality control over presentations and ensure that all communications are
consistent with FDA requirements. Ex. 16 (Friedman I Dep. 198-200); Ex. 15 (Lewis Dep. 112);
Ex. 17 (Hipwell Dep. 101, 106). DMs are required to complete “field trip coaching guide” forms
that list the activities and coaching they provided to the Reps. Ex. 17 (Hipwell Dep. 123-127)
(describing “standardized coaching form” used to supervise and train Reps). DMs also closely
supervise Reps through telephone calls, email communications, call logs, and weekly reports.
Ex. 1 ¶ 14; Ex. 2 ¶ 13; Ex. 3 ¶ 11; Ex. 4 ¶ 13; Ex. 5 ¶ 19; Ex. 6 ¶ 13; Ex. 7 ¶ 13; Ex. 8 ¶ 13; Ex. 9
¶ 13.
Throughout the year, Reps regularly attend Plan of Action (“POA”) meetings –
“strategy meetings to ensure that people again [understand] what [is] permissible and what [is]
not permissible.” Ex. 15 (Lewis Dep. 116-117). At these POA meetings, Reps frequently
simulate visits with Doctors under the supervision of DMs so Pfizer management can be sure
Reps are following all of Pfizer’s detailed instructions while they are in the field, and to train
Reps to respond to Doctors’ questions using Pfizer’s pre-fabricated responses. Ex. 24 (Kern
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Dep. 168-169); Ex. 1 ¶ 16; Ex. 2 ¶¶ 15-17; Ex. 3 ¶¶ 14-16; Ex. 4 ¶¶ 16-17; Ex. 5 ¶¶ 22-23; Ex. 6
¶¶ 16-17; Ex. 7 ¶ 15; Ex. 8 ¶¶ 15-17; Ex. 9 ¶¶ 15-17.
During every presentation to a Doctor, Reps are trained to deliver Pfizer’s “core
message.” Ex. 15 (Lewis Dep. 140-141); Ex. 17 (Hipwell Dep. 239-240). “The core message is
what brands a product.” Ex. 17 (Hipwell Dep. 239). The core message for each Pfizer product is
the same throughout the country. Indeed, the goal of the core message is to ensure that every
Rep is presenting each Pfizer product in the same way. Reps have no role in determining the
core message. Ex. 1 ¶¶ 20-21; Ex. 2 ¶¶ 20-21; Ex. 3 ¶¶ 19-20; Ex. 4 ¶¶ 20-21; Ex. 5 ¶¶ 26-27,
57; Ex. 6 ¶¶ 20-21; Ex. 7 ¶¶ 18-19; Ex. 8 ¶¶ 20-21; Ex. 9 ¶¶ 20-21. Pfizer also trains Reps
extensively on how precisely to present its approved visual aids to Doctors. Id.
Moreover, as discussed below, though Reps do not generally work from a fixed
location, they are subject to regular and ongoing supervision, evaluation, and control by
management through, inter alia, Pfizer’s computer systems.
C. The Call or “Detailing”
Pfizer uses the term “detailing” to describe a Rep’s presentation to a Doctor. Ex.
28 (Def. 56.1 Resp. ¶ 42). When detailing, Pfizer requires all its Reps to use the “selling model.”
The “selling model” starts with preparing a pre-visit or pre-call plan, which includes a review of
the core message the Rep must deliver and an analysis of the data Pfizer provides to Reps
indicating the precise number of prescriptions the targeted Doctor has recently written for each
Pfizer product and any competitor products. Ex. 22 (Overview of Pfizer Selling Model and
Related Workshops); Ex. 1 ¶ 22; Ex. 2 ¶ 22; Ex. 3 ¶ 21; Ex. 4 ¶ 22; Ex. 5 ¶ 28; Ex. 6 ¶ 22; Ex. 7
¶ 20; Ex. 8 ¶ 22; Ex. 9 ¶¶ 18, 22.
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The second step is the actual execution of the call plan during the visit with the
Doctor. This means communicating the pre-prepared message, providing or utilizing any pre-
approved written materials or visual aids (“detail pieces”), and providing product samples. Ex.
22 (Overview of Pfizer Selling Model and Related Workshops); Ex. 19 (Orange Guide at B3-B4,
B6); Ex. 15 (Lewis Dep. 134); Ex. 1 ¶ 23; Ex. 2 ¶ 23; Ex. 3 ¶ 22; Ex. 4 ¶ 23; Ex. 5 ¶ 29; Ex. 7 ¶
21; Ex. 8 ¶ 23; Ex. 9 ¶ 23.
The third step of the selling model is to “close.” All Reps are required to finish
their presentations to Doctors by asking for a prospective commitment to prescribe the Pfizer
product(s) they are promoting. Ex. 22 (Overview of Pfizer Selling Model and Related
Workshops). The commitment is not binding, and neither Reps nor Pfizer has any way of
enforcing it. Ex. 16 (Friedman I Dep. 96-97). Pfizer has a data system that methodically tracks
prescriptions filled by each Doctor’s patients, but there is no way of knowing whether the
prescription was the result of the Rep’s efforts, the Doctor’s own preferences and knowledge,
patient requests sparked by television or print advertisements, or other factors. In addition,
Pfizer cannot accurately “credit” Reps for prescriptions relating to their detailing because some
pharmacies do not report prescriptions, some Doctors refuse to see Reps, and more than one Rep
may visit the same Doctor. See Ex. 28 (Def. 56.1 Resp.¶¶ 85, 89, 90, 92-97).
In carrying out the selling model, Reps must strictly adhere to product messages
created by Pfizer management. Ex. 28 (Def. 56.1 Resp. ¶ 1) (admitting that “any information
regarding Pfizer’s products disseminated to doctors by sales representatives must be approved by
Pfizer”); Ex. 19 (Orange Guide at B2 (“Promotional activities, including detailing and sampling,
must also be carried out in strict accordance with FDA law and regulation and Pfizer policy.”));
id. at B4; Ex. 25 (Friedman II Dep. 41-42). Pfizer determines how it wants each product
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presented to Doctors, and Reps are required to “stay on message” in presenting Pfizer’s pre-
approved core message. Ex. 16 (Friedman I Dep. 62, 148); Ex. 17 (Hipwell Dep. 239-240); Ex.
26 (Rogers Dep. 177) (“They’ll understand what the core message is and they’ll deliver that
message.”).
Reps may not, under any circumstances, discuss an “off-label” use of Pfizer’s
pharmaceutical products, even if a physician asks a direct question about such a use. Ex. 28
(Def. 56.1 Resp. ¶ 56). Reps also are not permitted to discuss competitor products in any way
except as specifically instructed to do so by Pfizer. Ex. 16 (Friedman I Dep. 73); Ex. 18 (Orange
Guide at 22). If Reps are asked a question they are not specifically trained to answer, Reps are
required to refer the question to Pfizer headquarters by sending a medical inquiry. Ex. 1 ¶ 20;
Ex. 2 ¶ 20; Ex. 3 ¶ 19; Ex. 4 ¶ 20; Ex. 5 ¶ 26; Ex. 6 ¶ 20; Ex. 7 ¶ 18; Ex. 8 ¶ 20; Ex. 9 ¶ 20. Reps
are not permitted to take orders for Pfizer products or discuss Pfizer’s pricing, discounts, or any
terms related to the sale of pharmaceutical products with Doctors or patients. Ex. 51 (Def. 56.1
Resp. ¶¶ 47, 9, 11).
Every single printed or written material that Reps use or provide to Doctors must
be pre-approved by Pfizer and supplied by Pfizer. Ex. 28 (Def. 56.1 Resp. ¶ 52). Reps may not
create their own promotional materials of any kind, and they are strictly forbidden from altering,
writing on, or underlining any text on the materials they receive from Pfizer. Ex. 28 (Def. 56.1
Resp. ¶ 54); Ex 19 (Orange Guide at B3-B4). Strict requirements govern under what narrow
circumstances Reps are permitted to leave Pfizer materials with Doctors. Ex. 17 (Hipwell Dep.
161-162).
Put simply, Reps must not discuss any aspect of Pfizer products, or utilize any
material, that has not been pre-approved by the company. Ex. 17 (Hipwell Dep. 132, 134); id.
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132 (PRs may not use anecdotal evidence when detailing to Doctors). The restrictions on the
information that Reps may communicate to Doctors are uniform nationwide. Ex. 17 (Hipwell
Dep. 205); Ex. 1 ¶¶ 21, 28; Ex. 2 ¶¶ 20-21, 28; Ex. 3 ¶¶ 19-20, 27; Ex. 4 ¶ 29; Ex. 5 ¶¶ 26-27,
34; Ex. 6 ¶¶ 19-21; Ex. 7 ¶¶ 18-19; Ex. 8 ¶¶ 20-21; Ex. 9 ¶¶ 20-21, 28.
After completing a visit to a Doctor, all Reps are required to record details from
the visit on a laptop computer so Pfizer management can access the results of each visit. Ex. 15
(Lewis Dep. 86) (“each time they met with a physician, they were logging in on their computer
who they saw and what they did and what they dispersed with that.”). This information must be
entered into Pfizer’s computer system (“Sherlock”) frequently, preferably daily. Ex. 15 (Lewis
Dep. 87). As part of the post call record, each Rep is also required to input data into the
Sherlock system about what samples (or “starters” in industry parlance) they distributed to
Doctors. Ex. 23 (Starter Administration Compliance Manual at 4.2). Particularly strict
procedures govern the distribution of starters so the records must be accurate and detailed. Ex.
19 (Orange Guide at B6-B7); Ex. 23 (Starter Administration Compliance Manual at 4.8 (“It is
Pfizer’s policy that you enter starter transactions into the call reporting system daily and sync
daily!”)). This system of mandatory entry of post visit information is uniform nationwide. Ex.
15 (Lewis Dep. 88-90); Ex. 1 ¶¶ 27-28; Ex. 2 ¶¶ 27-28; Ex. 3 ¶¶ 26-27; Ex. 4 ¶¶ 27-28; Ex. 5 ¶¶
33-34; Ex. 6 ¶¶ 26-27; Ex. 7 ¶¶ 25-26; Ex. 8 ¶¶ 27-28; Ex. 9 ¶¶ 27-28.
D. The Daily Schedule of a Rep
Reps do not control their schedule or set their own hours. Reps are required to
call on Doctors in their assigned territory for a proscribed period of time every day, generally
from 8:00 a.m. to 5:00 p.m. Ex. 15 (Lewis Dep. 172-174); Ex. 1 ¶ 40; Ex. 2 ¶ 40; Ex. 3 ¶ 38; Ex.
4 ¶ 41; Ex. 5 ¶ 47; Ex. 6 ¶ 36; Ex. 7 ¶ 38; Ex. 8 ¶ 39; Ex. 9 ¶ 39. Pfizer monitors its Reps
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activities closely with daily signature and call requirements. Pfizer requires Reps to make an
average of 8-10 (sometimes even 8-12) physician calls per day. On 80% of these calls, Reps are
required to secure a signature from the Doctor acknowledging the receipt of starters. Ex. 31; Ex.
1 ¶¶ 41-42; Ex. 2 ¶¶ 35, 41; Ex. 3 ¶ 39; Ex. 4 ¶¶ 40-41, 34; Ex. 5 ¶¶ 42, 48-49; Ex. 6 ¶¶ 30, 37-
38; Ex. 7 ¶¶ 33, 39-40; Ex. 8 ¶¶ 40-41; Ex. 9 ¶¶ 34, 40-41. According to Pfizer, making 8-10
calls a day and leaving starters on 80% of those calls is a “critical component” of a Rep’s job.3
Ex. 31.
Reps do not choose where they will promote Pfizer’s products – Pfizer assigns
Reps a specific geographic territory. Ex. 51 (Def. 56.1 Resp. ¶ 43 (disputing terminology but
admitting facts)). Nor do Reps choose the Doctors upon whom they will call. Ex. 1 ¶¶ 33-34;
Ex. 2 ¶¶ 33-34; Ex. 3 ¶¶ 33-34; Ex. 4 ¶ 33; Ex. 5 ¶¶ 40-41; Ex. 6 ¶¶ 28-29; Ex. 7 ¶¶ 31-32; Ex. 8
¶¶ 31-32; Ex. 9 ¶ 33. Instead, Pfizer generates a list of Doctors that Reps are expected to contact,
and gives Reps specific instructions on how often to visit each Doctor. Reps cannot add or
remove Doctors from their target list without management approval. Id.; Ex. 27 (Hadley Dep.
125 (“You just can’t add a physician. It has to go to the district manager. They have to okay
it.”)).
DMs can monitor and supervise Reps’ activities through the Sherlock computer
system. Ex. 15 (Lewis Dep. 84-85, 97-102). By using Sherlock, DMs can and regularly do
access, among other things, up-to-date information on how many Doctor contacts their Reps
have made, which Doctors have been contacted, and what transpired during those meetings. Ex.
15 (Lewis Dep. 91-92); id. 84-85 (Reps record daily number of physicians visited or “call
3 When Plaintiff Boal failed to reach these benchmarks, she was placed on a Performance Improvement Plan. Ex. 31.
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averages” so that manager may review productivity). All Reps receive the same training
regarding data input into the Sherlock system. Ex. 15 (Lewis Dep. 87).
In addition to calling on physicians, Reps are expected to handle clerical, data-
entry, and planning tasks on a daily basis, such as reading and responding to emails, preparing
expense reports, collecting and completing starter forms, managing starter supplies, and reading
new information about Pfizer products. It is both impractical and nearly impossible for Reps to
complete these tasks during their field hours. Ex. 1 ¶¶ 43-44; Ex. 2 ¶¶ 43-44; Ex. 3 ¶¶ 40-41; Ex.
4 ¶¶ 42-43; Ex. 5 ¶¶ 51-52; Ex. 6 ¶¶ 40-41; Ex. 7 ¶¶ 41-42; Ex. 8 ¶¶ 42-43; Ex. 9 ¶¶ 42-43.
Reps are also required to host and attend speaker events. It is typical for speaking
programs to last until 10:00 or 11:00 p.m. Reps frequently host or attend a speaker program
once a week, and sometimes two to three times a week. Ex. 1 ¶¶ 36-37, 47; Ex. 2 ¶¶ 36-37, 47;
Ex. 3 ¶¶ 35-36, 44; Ex. 4 ¶¶ 35-36, 45; Ex. 5 ¶¶ 43-44, 55; Ex. 6 ¶¶ 31, 43; Ex. 7 ¶¶ 34-35, 45;
Ex. 8 ¶¶ 35-36, 46; Ex. 9 ¶¶ 35-36, 46. A Rep cannot schedule a speaking event without
management approval, and must only utilize speakers identified and approved by Pfizer. Ex. 15
(Lewis Dep. 249-250). Even the topic of the presentation must be selected from the “Approved
Speaker Topics list.” Ex. 19 (Orange Guide at B9).
ARGUMENT
I. THREE STATE LAW CLASSES SHOULD BE CERTIFIED
Class certification is appropriate where plaintiffs establish that the prerequisites of
Rule 23(a) are satisfied, and that a class action may be maintained under one of the subsections
of Rule 23(b). In re Initial Pub. Offering Sec. Litig. (“IPO”), 471 F.3d 24, 41 (2d Cir. 2006).
Rule 23(a) permits class certification if: “(1) the class is so numerous that joinder
of all members is impracticable, (2) there are questions of law or fact common to the class, (3)
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the claims or defenses of the representative parties are typical of the claims or defenses of the
class, and (4) the representative parties will fairly and adequately protect the interests of the
class.” Rule 23(a). Class certification under Rule 23(b)(3) applies to cases where questions of
law or fact common to members of the class predominate over any questions affecting only
individual members and a class action is superior to other available methods for the fair and
efficient adjudication of the controversy. Rule 23(b)(3).
In considering whether to certify a class, the district court should not assess any
aspect of the merits unrelated to a Rule 23 requirement. IPO, 471 F.3d at 41; In re Methyl
Tertiary Butyl Ether (“MTBE”) Prod. Liab. Litig., 241 F.R.D. 435, 443 (S.D.N.Y. 2007). Rule
23 is traditionally given liberal construction. Marisol A. v. Giuliani, 126 F.3d 372, 377 (2d Cir.
1997). While the decision to certify a class is committed to the district court=s discretion, the
Second Circuit is noticeably “less deferential . . . when that court has denied class status than
when it has certified a class.” Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 291 (2d
Cir. 1999) (citation and internal quotation omitted), overruled on other grounds by IPO, 471
F.3d at 40. Courts must err “in favor and not against the maintenance of a class action.” Sharif
v. N.Y. State Educ. Dept., 127 F.R.D. 84, 87 (S.D.N.Y. 1989) (citations omitted).
In addition to asserting claims under the FLSA, pursuant to Rule 23: (1) Plaintiffs
Cohen and Jeter assert claims under New York Labor Law, § 190, et seq., and § 650, et seq., on
behalf themselves and all Reps (as defined supra n. 1) who were, are, or will be employed by
Pfizer in the State of New York from November 15, 2000, onward (the “New York Class”); (2)
Plaintiffs Albarran, Boal, and Oblitas-Rios assert claims under California wage and hour law, on
behalf themselves and all Reps who were, are, or will be employed by Pfizer in the State of
California from November 2, 2002, onward (the “California Class”); and (3) Plaintiff Coultrip
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asserts claims under the Illinois Minimum Wage Law, 820 Ill. Rev. Stat. 105/1 et seq.
(“IMWL”), on behalf himself and all Reps who were, are, or will be employed by Pfizer in the
State of Illinois from October 19, 2003, onward (the “Illinois Class”).
A. The Proposed Classes Satisfy Rule 23(a)
1. Numerosity - Rule 23(a)(1)
The essential element of any class action is that the proposed class be so large that
joinder of all individual class members is impracticable. Rule 23(a)(1). In cases involving
classes numbering in the hundreds, the numerosity requirement of Rule 23(a)(1) is easily met.
Herbert Newberg & Alba Conte, Newberg on Class Actions 3:05 (4th ed. 2002) (“Newberg”).
Numerosity can be presumed at a level of 40 members. Consol. Rail Corp. v. Town of Hyde
Park, 47 F.3d 473, 483 (2d Cir. 1995) (citing Newberg 3:05 (1992)). Here, numerosity is met
because each of the proposed state law classes has many hundreds of members.
Insofar as Pfizer may contend that joinder is practicable because a significant
number of putative class members who worked in New York, California, or Illinois have already
joined this action in response to the two “opt-in” notices that were mailed to them in 2008 and
2011, that argument should be rejected for at least three reasons. First, the time to join this
action expired in April 2011. Accordingly, putative class members can no longer join by filing a
notice. Second, because the statute of limitations under New York and California law is six and
four years respectively, as compared to the three-year statute of limitations under the FLSA,
there are a substantial number of putative class members who will not have their claims
adjudicated unless Rule 23 classes are certified. Finally, class actions are commonly certified
where, as here, class members currently work for defendant and “the concern for possible
employer reprisal action exists and renders the alternative of individual joinder less than
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practicable.” Trinidad v. Breakaway Courier Sys., Inc., 05-cv-4116, 2007 WL 103073, at *9
(S.D.N.Y. Jan. 12, 2007) (internal citation and quotation omitted).
2. Common Questions of Law or Fact B Rule 23(a)(2)
The commonality requirement “[is] satisfied if the class shares even one common
question of law or fact.” In re NTL, Inc. Sec. Litig., 02-cv-3013, 2006 WL 330113, at *6
(S.D.N.Y. Feb. 14, 2006) (internal citations and quotations omitted); accord Daniels v. City of
New York, 198 F.R.D. 409, 417 (2001) (citing In Re Agent Orange Prod. Liab. Litig., 818 F.2d
145, 166-67 (2d Cir. 1987)).
“All questions of fact and law need not be common to satisfy the rule. The
existence of shared legal issues with divergent factual predicates is sufficient, as is a common
core of salient facts coupled with disparate legal remedies within the class.” Hanlon v. Chrysler
Corp.,150 F.3d 1011, 1019-20 (9th Cir. 1998); accord Berwecky v. Bear, Sterns & Co., Inc., 197
F.R.D. 65, 68 (S.D.N.Y.2000) (same); see also Wilder v. Bernstein, 499 F. Supp. 980, 992
(S.D.N.Y. 1980). This commonality requirement is particularly well satisfied, where as here, the
injuries complained of by the plaintiffs allegedly resulted from the same practice or policy that
allegedly injured or will injure the proposed class members. Daniels, 198 F.R.D. at 417; see also
Marisol A., 126 F.3d at 376-77.
Defendants will no doubt argue that the legal and factual issues presented by each
proposed state law class will give rise to unique issues both within each class and between the
classes. Plaintiffs’ claims, however, all present the same common nucleus of facts, and the laws
to be applied are expressly identical or materially indistinguishable for purposes of the
exemptions at issue in this case. See, e.g., Westerfield v. Wash. Mut. Bank, 06-cv-2817, 2007
WL 2162989 (E.D.N.Y. July 26, 2007) (finding that Plaintiffs could bring class action claims
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under New York, California, Illinois, and New Jersey wage and hour law in conjunction with a
FLSA collective action). Indeed, “Rule 23 and FLSA actions are routinely prosecuted together,
and the complexities of Rule 23 and FLSA hybrid actions are a challenge that the federal
judiciary, and properly instructed juries, are generally well-equipped to meet.” Brickey v.
Dolencorp, 244 F.R.D. 176, 179 (W.D.N.Y. 2007); accord infra Argument I.C.
Plaintiffs and all other Reps are similarly situated for purposes of assessing the
only defenses Pfizer can assert in this case: exemption to the overtime requirements of the FLSA
and parallel state laws. See Iglesias-Mendoza, 239 F.R.D. 363, 368 (S.D.N.Y. 2007) (ruling that
defendant=s assertion that the potential collective members were covered by a FLSA exemption
was added evidence that members were similarly situated). Because all Reps share the same
primary duty of providing information to Doctors about Pfizer pharmaceutical products using
preset scripts, and are all governed by uniform and detailed prohibitions on a broad range of
interactions (including both Pfizer and FDA requirements), the common analysis of whether
Pfizer can meet its burden of establishing any exemption will be the same for every Rep. Indeed,
Pfizer made its exemption decision on a class-wide basis, indicating that it believes that Reps’
eligibility for overtime can be established on a class-wide basis.
Like the combined nationwide collective action under the FLSA and Rule
23(b)(3) class actions under New York and California law recently resolved by the Second
Circuit in Novartis, 611 F.3d at 149, the two primary exemptions that will be invoked by Pfizer
are the outside salesperson exemption and the administrative exemption.
Plaintiffs contend, among other things, that their duties did not involve any
“sales,” thus precluding application of the outside sales exemption. Plaintiffs also assert that
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they lacked discretion or independent judgment concerning matters of significance directly
related to Pfizer=s management or business operations. Pfizer will no doubt argue otherwise.
The Court need not – and should not – reach the merits of this issue at this stage
of the litigation. It is sufficient that the exemptions present common factual and legal issues that
can be resolved jointly. The inquiry into the success or failure of the claimed exemptions comes
later in the litigation process, after discovery is completed.
a. The Law is Common
i. Outside Sales Exemption
To establish the “outside sales” exemption under the FLSA, Pfizer must
demonstrate that an employee’s “primary duty” is outside sales and that the employee works a
significant time away from the employer’s place of business. 29 C.F.R. § 541.500. This
exemption requires that an employee be engaged in making actual sales. See generally 29
U.S.C. § 203(k); 29 U.S.C. § 213(a)(1); 29 C.F.R. § 541.500. The sales exemptions under New
York, California, and Illinois law are not materially different than the FLSA sales exemption.
See N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.2;4 Cal. Labor Code § 1171; Wage Order 4-
2001, §§ 1(C), 2(M), codified at Cal. Code Regs. tit. 8, §§ 11040(1)(C), 11040(2)(M);5 820 Ill.
Rev. Stat. 105/3(d)(4).6
4 New York has adopted the FLSA’s outside salespersons and administrative exemptions. The New York Department of Labor regulations require that employers pay overtime “in the manner and methods provided in and subject to the exemptions of” the FLSA. N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.2. The Second Circuit has explicitly held that federal interpretation of the FLSA’s overtime provisions govern a federal court’s interpretation of the analogous New York state overtime provisions. See Reiseck v. Universal Commc’ns of Miami, Inc., 591 F.3d 101, 105 (2d Cir. 2010) (noting that New York Labor Law “mandates overtime pay and applies the same exemptions as the FLSA”); Zheng v.Liberty Apparel Co., 355 F.3d 61, 78-79 (2d Cir. 2003) (same test under FLSA and New York law for overtime claims); Kuebel v. Black & Decker, Inc., -- F.3d --, 2011 WL 1677737, at *12, n.1 (2d Cir. May 5, 2011) (same). Similarly, in the Novartis case, the Second Circuit held that if the pharmaceutical Reps in that case were not exempt under the FLSA exemptions, they were likewise not exempt under New York law. 611 F.3d at 157 (noting that the parties agreed it is undisputed that “the overtime wage requirements of New York law and California law are not meaningfully different from the requirements of the FLSA”). It is therefore
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As the Second Circuit recently explained in Novartis,
[W]here the employee promotes a pharmaceutical product to a physician but can transfer to the physician nothing more than free samples and cannot lawfully transfer ownership of any quantity of the drug in exchange for anything of value, cannot lawfully take an order for its purchase, and cannot lawfully even obtain from the physician a binding commitment to prescribe it, we conclude that it is not plainly erroneous to conclude that the employee has not in any sense, within the meaning of the statute or the regulations, made a sale.
Novartis, 611 F.3d at 154; see also id. at 157 (applying same analysis to class claims under New
York and California law). Without exception, every Pfizer Rep’s primary function is to visit
well established that New York overtime regulations, and particularly the exemptions, should “be applied and construed in a manner consistent with the analogous provisions under the FLSA.” Scholtisek v. Eldre Corp., 697 F. Supp. 2d 445, 467 (W.D.N.Y. 2010); see also Debejian v. Atl. Testing Labs., Ltd., 64 F. Supp. 2d 85, 87 n.1 (N.D.N.Y. 1999) (noting that New York overtime regulations are “substantially similar” to federal scheme and applying federal law analysis “equally” to plaintiff’s claims under the FLSA and New York law); Bennett v. Progressive Corp., 225 F. Supp. 2d 190, 215 (N.D.N.Y.2002); Scott Wetzel Servs. Inc. v. New York State Bd. of Indus. Appeals, 252 A.D.2d 212, 213 n.* (3d Dep’t 1998) (applying administrative exemption under FLSA and noting that under New York law, “[a]n employer is obligated to pay an employee overtime pay in the manner and method provided in and subject to the exemptions set forth in the FLSA”). 5 “Outside salesperson” is defined under California law as “any person, 18 years of age or over, who customarily and regularly works more than half the working time away from the employer’s place of business selling tangible or intangible items or obtaining orders or contracts for products, services or use of facilities.” California Industrial Welfare Commission Wage Order (“Wage Order”) 4-2001 § 2(M) (codified at Cal. Code Regs. tit. 8, § 11010 2(1) (2009). The California Supreme Court has noted that state law concerning outside sales employees differs from federal law in two ways: (1) in California, employees who spend “more than half the working time” away from their employer’s business making sales qualify, whereas the FLSA focuses on whether the employee’s “primary function” is sales, and (2) under California law, non-sales work “incidental” to qualifying sales work cannot be counted as sales work. Ramirez v. Yosemite Water Co., Inc., 20 Cal. 4th 785, 796-97 (1999). Neither of these distinctions will disturb the commonality between California law and federal law because here plaintiffs are arguing that none of the activities performed by the Reps meet the basic definition of sales under either the California standard or the federal one. Thus, the same evidence will be presented for the resolution of the claims under California law and the FLSA. See Romero v. Producers Dairy Foods, Inc., 235 F.R.D. 474 (E.D. Cal. 2006) (certifying both the FLSA collective action and the Rule 23 California state law class actions where defendant asserted the outside sales exemption); Novartis, 611 F.3d at 157. 6 The Illinois Minimum Wage Law (“IMWL”) defines an “outside salesman” as “an employee regularly engaged in making sales or obtaining orders or contracts for services where a major portion of such duties are performed away from his employer’s place of business.” 820 Ill. Rev. Stat. 105/3(g). This language is almost identical to the federal regulations. See 29 C.F.R. § 541.500.
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Doctors, deliver Pfizer product information, and encourage doctors to prescribe Pfizer drugs –
duties identical to those of the representatives whose job classification was at issue in Novartis.
ii. Administrative Exemption
In order to prove that Plaintiffs are exempt as administrative employees under
federal law, Pfizer must meet both prongs of the federal administrative exemption test. Under
this test, Pfizer must prove both: (1) that Reps’ primary duty consists of performing office work
or non-manual work directly related to the management or the general business operations of the
employer or the employer’s customers (“First Prong”); and (2) that Reps’ primary duties include
the exercise of discretion and independent judgment with respect to matters of significance
(“Second Prong”). See 29 U.S.C. § 213(a)(1); 29 C.F.R. § 541.200-202. The New York,
California, and Illinois laws concerning the administrative exception are all modeled after the
FLSA.
Courts have repeatedly held that the New York administrative exemption is
analogous to the FLSA exemption.7 Scott Wetzel Servs., 252 A.D.2d at 213 n.*; Gorey v.
Manheim Servs. Corp., -- F. Supp. 2d --, 2011 WL 1832562, at *3 (S.D.N.Y. May 13, 2011)
(applying the administrative exemption and stating “New York law governing overtime pay is
defined and applied in the same manner as the FLSA”); Scholtisek v. Eldre Co., 697 F. Supp. 2d
445, 464 (W.D.N.Y. 2010) (The New York regulations set forth definitions for an employer to
classify an employee as administratively exempt that, as far as the job duties of the employee are
concerned, “are substantially the same, if not quite identical, to those in the federal
7 The language of the New York administrative exemption mirrors that of the FLSA. N.Y. Comp. Codes R. & Regs. tit. 12, §§ 142-2.2 and 142-2.14(a)(4)(ii)(a) & (b).
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regulations.”); see also supra n. 4 (discussing how New York law follows FLSA for all relevant
purposes).
Courts have also noted that California’s administrative exemption8 “has been
construed in the same manner as the administrative exemption under the [FLSA],” Heffelfinger
v. Elec. Data Sys. Corp., 580 F. Supp. 2d 933, 949-50 (C.D. Cal. 2008), and that it “closely
parallels the federal regulatory definition of the same exception.” Combs v. Skyriver Commc’n,
Inc., 159 Cal. App. 4th 1242, 1255 (2008); see also Medapalli v. Maximus, Inc., 06-cv-2774,
2008 WL 958045, at *5 (E.D.Cal. April 8, 2008) (“IWC Wage Order No. 4-2001 expressly
incorporates certain regulations of [FLSA]”); Cal. Code Regs. tit. 8, § 11040(1)(A)(2)(f) (“The
activities constituting exempt work and non-exempt work shall be construed in the same manner
as such terms are construed in the following regulations under the Fair Labor Standards Act
effective as of the date of this order: 29 C.F.R. Sections 541.201-205, 541.207-208, 541.210, and
541.215”).
The Illinois administrative exemption explicitly adopts the FLSA standard. 820
Il. Rev. Stat. 105/4a(2)(E) (designating as exempt, “employee[s] employed in a[n] . . .
administrative . . . capacity . . . as defined by or covered by the Federal Fair Labor Standards Act
of 1938 and the rules adopted under that Act, as both exist on March 30, 2003 …”).9 Indeed,
8 For an employer to classify an employee as administratively exempt under California law, the employee must “(1) perform office or non-manual work directly related to management policies or general business operations of the employer or its customers, (2) customarily and regularly exercise[ ] discretion and independent judgment, (3) perform[ ] under only general supervision work along specialized or technical lines requiring special training or execute [ ] under only general supervision special assignments and tasks, (4) be engaged in the activities meeting the test for the exemption at least 50 percent of the time, and (5) earn twice the state’s minimum wage.” Eicher v. Advanced Business Integrators, Inc., 151 Cal. App. 4th 1363, 1371 (2007) (internal quotation marks omitted); see also Wage Order 4-2001, §1(A)(2), codified at 8 Cal. Bus. Code Regs. §§ 11040(1)(A)(2) (complete text of the definition of the administrative exemption). 9 The statute adopts the FLSA rules as they existed on Mar. 30, 2003. 820 Il. Rev. Stat. 105/4a(2)(E). The DOL promulgated new regulations for the FLSA in 2004, but the new regulations did not meaningfully alter the
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“the same analysis generally applies to both the FLSA and IMWL.” Ladegaard v. Hard Rock
Concrete Cutters, Inc., 00-cv-5755, 2004 WL 1882449, at *4 (N.D. Ill. Aug. 18, 2004) (ruling
that “[c]ourts have generally held that the IMWL parallels the FLSA, and the Illinois
Administrative Code provides that FLSA regulations provide guidance in interpreting the
IMWL”) (citations omitted); see also Orphanos v. Charles Indus., 95-cv-4039, 1996 WL
437380, at *4 (N.D. Ill. July 29, 1996) (recognizing that plaintiff=s overtime claim under the
Illinois Minimum Wage Law “ride[s] on the success of her federal FLSA claim with regard to
overtime compensation.”).
Because all three states’ legal standards for the administrative exception hew to
the federal standard under the FLSA, we set forth below only the FLSA’s two-prong analysis for
the administrative exception – both of which must be satisfied for Pfizer to prevail.
First Prong: Work Directly Related to Management or General Business
Operations. To satisfy the first prong of the administrative exception, an “employee must
perform work directly related to assisting with the running or servicing of the business, as
distinguished, for example, from working on a manufacturing production line or selling a
product in a retail or service establishment.” 29 C.F.R. §541.201(a) (emphasis added).
Examples of “work directly related to management or general business operations” include
“work in functional areas such as tax; finance; accounting; budgeting; auditing; insurance;
quality control; purchasing; procurement; advertising; marketing; research; safety and health;
administrative exemption under the FLSA. See Robinson-Smith v. Gov’t Emps. Ins. Co., 323 F. Supp. 2d 12, 18 (D.D.C. 2004) (“The general criteria for employees employed in a bona fide administrative capacity are essentially the same under the August 2004 Regulations as under the current [pre-August 2004] regulations.”), rev’d on unrelated grounds, 590 F.3d 886, 887 (D.C. Cir. 2010)).
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personnel management; human resources; employee benefits; labor relations; government
relations; computer network, internet and database administration; legal and regulatory
compliance; and similar activities.” 29 C.F.R. §541.201(b) (emphasis added).
Courts have repeatedly distinguished between a corporation’s general marketing
efforts, such as designing an overall sales campaign, and a corporation’s targeted marketing
efforts, like those carried out for Pfizer by its Reps. General marketing work is exempt as
administrative, but targeted marketing to individuals is not. In Reiseck v. Universal
Communications of Miami, Inc., the Second Circuit expressly held that to satisfy the first prong
of the administrative exemption, sales promotion must “consist[] of marketing activity aimed at
promoting . . . customer sales generally,” and that an employee targeting “individual customers”
does not meet this threshold. Reiseck, 591 F.3d at 107 (citing Martin v. Cooper Elec. Supply Co.
940 F.2d 896, 905 (3d Cir. 1991)) (internal quotations omitted). It is undisputed that the Reps’
job entails targeting individuals (Doctors) rather than general marketing.
In analyzing the first prong of the exemption as applied to pharmaceutical
representatives in Ruggeri v. Boehringer Ingelheim Pharmaceuticals, Inc., 585 F. Supp. 2d 254,
273 (D. Conn. 2008) (denying pharmaceutical company’s motion for summary judgment on
administrative exemption), the court explained:
To the extent that Plaintiffs’ work as part of Boehringer’s 2,800-person-strong drug-marketing army had a relationship to issues directly related to Boehringer’s general business operations – issues such as manufacturing and selling pharmaceuticals – it was a twice-removed relationship to such operations: Plaintiffs carried out others’ determination of which drugs to market and to whom and how to market them, and Plaintiffs’ marketing work only indirectly led to sales of Boehringer’s products by its Trade Relations Group to wholesale customers.
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Id. at 273 (emphasis added). Here, as in Ruggeri, all Reps are engaged in targeted
promotion designed to encourage physicians to prescribe specific Pfizer products to their
patients.
Second Prong: Discretion and Independent Judgment Concerning Matters of
Significance. “To qualify for the administrative exemption, an employee’s primary duty must
include the exercise of discretion and independent judgment with respect to matters of
significance.” 29 C.F.R. § 541.202(a). The “phrase ‘discretion and independent judgment’ must
be applied in light of all the facts involved in the particular employment situation in which the
question arises.” 29 C.F.R. §541.202(b). Common factors to consider in making this
determination include:
[W]hether the employee has the authority to formulate, affect, interpret, or implement management policies or operating practices; whether the employee carries out major assignments in conducting the operations of the business; whether the employee performs work that affects business operations to a substantial degree . . . ; whether the employee has authority to commit the employer in matters that have significant financial impact; whether the employee has authority to waive or deviate from established policies . . . without prior approval; whether the employee has authority to negotiate and bind the company on significant matters; whether the employee provides consultation or expert advice to management; whether the employee is involved in planning long- or short-term business objectives; whether the employee investigates and resolves matters of significance on behalf of management; and whether the employee represents the company in handling complaints, arbitrating disputes or resolving grievances.
Id.
In Novartis, the Second Circuit applied this test to pharmaceutical representatives
and concluded that there was no evidence to conclude that Novartis had met its burden to
establish the second prong of the administrative exemption. Novartis, 611 F.3d at 156. The
court explained, “we see no evidence in the record that the Reps have any authority to formulate,
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affect, interpret, or implement Novartis’s management policies or its operating practices, or that
they are involved in planning Novartis’s long-term or short-term business objectives, or that they
carry out major assignments in conducting the operations of Novartis’s business, or that they
have any authority to commit Novartis in matters that have significant financial impact.” Id.10
Pfizer Reps have job duties that are materially similar to Novartis’s
pharmaceutical representatives. Under the Second Circuit’s governing analysis, it is apparent
that Pfizer Reps too have no discretion or independent judgment concerning any matters of
significance.
b. Common Questions
Irrespective of which side prevails on the merits, Plaintiffs’ claims are clearly
subject to group resolution. Here, Plaintiffs share dozens of common factual and legal issues and
both parties and the court system would benefit from resolving all claims in a single proceeding.
All Plaintiffs’ claims and injuries derive from a unitary course of conduct: Pfizer’s policy and
practice of misclassifying Reps en masse as exempt from overtime law. In addition, common
questions clearly predominate within the three separate state law classes. Indeed, common
questions even predominate between the three classes under the law of New York, California,
and Illinois, and the claims brought pursuant to the FLSA.
Common factual questions which must be resolved for all 3,000 plaintiffs and the
members of each of the three proposed classes, under both federal law and the law of the three
states, include, without limitation:
10 See also 1997 WL 972382, at *1 (U.S. Dept. of Labor Wage and Hour Letter (no number in original), Oct. 20, 1997) (“The term [‘discretion and independent judgment’] applies to the kinds of decisions normally made by persons who formulate or participate in the formulation of policy within their spheres of responsibility or who exercise authority within a wide range to commit their employer in substantial respects financially or otherwise.”); 2006 WL 2792441, at *7-8 (U.S. Dept. of Labor Wage and Hour Letter (FLSA 2006-27), July 24, 2006)
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• the nature of the primary job duties and tasks the Reps perform; • whether those duties are performed away from Pfizer’s offices; • whether Reps sell Pfizer’s products as that term is defined by the relevant laws; • whether other Pfizer employees sell Pfizer’s products; • whether Reps’ work is designed to generate their own sales or increase the sales of other
Pfizer employees; • whether Reps engage primarily in office work; • whether Reps engage primarily in non-manual work; • whether the work Reps do is directly related to the management of Pfizer or its general
business operations; • whether Pfizer allows Reps to exercise discretion and independent judgment in carrying
out their primary duties, and if so, how much; • insofar as Reps have any meaningful discretion, does it involve matters of significance as
that term is defined by the relevant laws; • what are Pfizer’s practices concerning the compensation of Reps; • what are Pfizer’s policies, procedures, and protocols concerning the payment of overtime
wages to Reps; • what are Pfizer’s policies, procedures, and protocols concerning the payment of wages to
Reps for all hours worked; • whether Defendant failed or refused to pay premium pay for hours worked in excess of
forty per work week; • what were the common workplace conditions and conditions of employment, such as
record keeping; • whether Pfizer made a uniform decision to classify Reps on the basis of job descriptions
rather than analyzing actual job duties; • whether Pfizer prohibits Reps from discussing particular topics with doctors; • whether Reps are required to deliver a core message during every interaction with a
doctor; • whether Pfizer prohibits Reps from discussing off-label uses for its products; • whether Pfizer allows Reps discretion to use visual aids or written materials that they
make or acquire from sources outside of Pfizer; • whether Reps distribute standardized visual aids or products; • whether Reps receive common training to interact with physicians in a controlled and
scripted manner; and • whether Pfizer’s conduct was willful.
These are just some of the questions of fact common to the class that must be answered in order
to determine whether Reps are exempt from the FLSA or the parallel laws of New York,
California, or Illinois. Discovery to resolve these common issues of fact will be identical.
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Common questions of law applicable to all class members include, without
limitation:
• whether Pfizer misclassified Reps as exempt under the outside sales exemption; • whether Pfizer misclassified Reps as exempt under the administrative exemption; • whether Pfizer=s policy and practice of classifying Reps as exempt from overtime and
Pfizer=s policy and practice of failing to pay overtime violates the applicable provisions of state law;
• whether Pfizer’s conduct was willful; • what proof of hours is sufficient where Pfizer failed in their duty to maintain time
records; and • how much deference is owed to the amicus briefs in Novartis and other actions filed by
the United States Department of Labor, the agency expressly charged by Congress with the duty to “define and delimit” the meaning of the FLSA.
For these reasons, the elements of Rule 23(a)(2) are satisfied.
3. Typicality B Rule 23(a)(3)
Rule 23(a)(3) requires that the claims of the class representative must be “typical”
of those of the absent class members. Amchem Prods, Inc. v. Windsor, 521 U.S. 591, 607 n.11
(1997). A proposed class representative’s claims or defenses are typical when they arise from
the same general “course of events” as those of the absent class members and rely on “similar
legal arguments” to prove defendant=s liability. Robinson v. Metro-North Commuter R.R., 267
F.3d 147, 155 (2d Cir. 2001). The typicality requirement “primarily directs the district court to
focus on whether the named representatives’ claims have the same essential characteristics as the
claims of the class at large.” MTBE, 241 F.R.D. at 444 (citations omitted). Typicality is
determined by the nature of the claims of the class representative, not by the specific facts from
which they arose. See generally Newberg: 3:15.
The purpose of the typicality requirement is to ensure that maintenance of a class
action is economical and that the named plaintiff=s claims and the class claims are so intertwined
that the interests of the class members will be fairly and adequately protected in their absence.
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Cromer Finance Ltd. v. Berger, 205 F.R.D. 113, 122 (S.D.N.Y. 2001). “[V]iewed in the most
practical way, typicality is present when all members of the putative class would benefit by the
success of the named plaintiff.” Cutler v. Perales, 128 F.R.D. 39, 45 (S.D.N.Y. 1989) (citations
omitted).
In this case, the violations suffered by Plaintiffs are typical of those of the state
classes they seek to represent. All claims arise out of Pfizer=s uniform policy of classifying Reps
as exempt and not paying Reps overtime. All of Plaintiffs= claims are based on the same legal
theory: that they are not exempt from the overtime pay requirements of their respective states=
laws and federal law.
4. Adequacy B Rule 23(a)(4)
Rule 23(a)(4) requires that class representatives must “fairly and adequately
protect the interests of the class.” Rule 23(a)(4). Plaintiffs are adequate representatives because
they were subjected to the same unlawful conduct as the class members. Hirschfeld, 193 F.R.D.
at 183. And Plaintiffs will fairly represent the proposed class because they have no conflict with
any class members, and will fairly and adequately protect the interests of the classes. Ex. 3 ¶ 55;
Ex. 5 ¶ 64; Ex. 6 ¶ 53; Ex. 8 ¶ 55; Ex. 9 ¶ 56. Accordingly, Rule 23(a)(4) is satisfied.
B. The Proposed Classes Satisfy Rule 23(b)(3)
Rule 23(b)(3) certification is appropriate in cases in which common legal or
factual issues predominate over individual issues and where a class action is superior to other
methods of adjudication. Courts have not developed a precise test to determine whether
common issues predominate but often look for an essential common link among class members
that can be remedied through litigation. Newberg: 4:25. In this case, all Plaintiffs’ claims
revolve around one common question: whether Pfizer misclassified the Reps as exempt from
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overtime pay. These questions and their many common subsidiary issues can and should be
adjudicated on a class-wide basis. This is particularly true because Plaintiffs seek to certify three
separate classes, thereby rendering any differences between the states irrelevant other than in
connection with manageability (which is not a bar here (supra Argument I.B.2)).
1. Common Legal or Factual Issues Predominate
To satisfy predominance under Rule 23(b)(3), Plaintiffs must establish that “the
issues in the class action that are subject to generalized proof, and thus applicable to the class as
a whole . . . predominate over those issues that are subject only to individualized proof.” In re
Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 136 (2d Cir. 2001) (citation and internal
quotations omitted), overruled on other grounds as noted in Brown v. Kelly, 609 F.3d 467, 483
(2d Cir. 2010)). Predominance is generally satisfied unless it is clear that individual issues will
“overwhelm” the common questions. In re Nasdaq Market-Makers Antitrust Litig., 169 F.R.D.
493, 515 (S.D.N.Y. 1996).
Here, there are a raft of common issues of law and fact within each separate class
(and for the three classes taken together) that predominate over any individualized issues. Supra
Argument I.A.2(b). Pfizer’s highly standardized operations are designed to ensure that Reps
perform the same primary duties in a similar manner. Because of the highly regulated nature of
the industry, Pfizer exercises an extraordinary amount of centralized control over its Reps and
their duties. Indeed, Pfizer fosters homogeneity in the Reps’ jobs by closely supervising the
performance of their duties. Supra Facts II.B. Accordingly, common questions will
predominate.
Courts have repeatedly certified classes of employees seeking overtime
compensation under the three state laws at issue here, finding common questions predominated
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over individualized inquiries.11 Class certification is particularly appropriate where, as here,
class members perform similar tasks, an employer uses standardized policies and procedures, and
employees are classified as exempt based on their job titles alone. Donovan v. Burger King
Corp., 675 F.2d 516, 519-20 (2d Cir. 1982) (court extended liability for overtime wages to all
employees throughout the New York area, based on evidence of corporate standardization of job
duties); see also Jankowski v. Castaldi, 01-cv-0164, 2006 WL 118973, at *4 (E.D.N.Y. Jan. 13,
2006) (finding predominance when “each proposed Plaintiff class member did substantially the
same type of work for the same type of employer, and was assigned in the same sort of way”)
(citation omitted); Damassia v. Duane Reade, Inc., 250 F.R.D. 152, 160 (S.D.N.Y. 2008)
(Lynch, J.) (“Where, as here, there is evidence that the duties of the job are largely defined by
comprehensive corporate procedures and policies, district courts have routinely certified classes
of employees challenging their classification as exempt, despite arguments about
‘individualized’ differences in job responsibilities.”) (collecting cases).
Moreover, it is well-established that a defendant’s invocation of exceptions to the
overtime laws (such as the ones at issue here) often makes “class action treatment [] particularly
apt.” See Romero, 235 F.R.D. at 487 and 490. “This is because if the defense succeeds, the 11 See, e.g., Velez v. Majik Cleaning Serv., Inc., 03-cv-8698, 2005 WL 106895, at *4 (S.D.N.Y. Jan. 19, 2005) (“whether [defendants] breached their legal duties under the FLSA and New York Labor Law are issues that predominate in this case.”); see also Tierno v. Rite Aid Corp., 05-cv-02520, 2006 WL 2535056 (N.D. Cal. Aug. 31, 2006) (common questions predominated due to defendant’s standardized policies throughout its stores; certifying class action under California law and notice of FLSA action); Ansoumana v. Gristede’s Operating Corp., 201 F.R.D. 81, 89 (S.D.N.Y. 2001) (certifying New York state law class after finding that common issues predominate over individual ones “because each Plaintiff class member did substantially the same type of work, for the same type of employer, and was assigned in the same sort of way, during the relevant time period”); Lee v. ABC Carpet & Home, 236 F.R.D. 193 (S.D.N.Y. 2006) (same); Smellie v. Mount Sinai Hosp., 03-cv-0805, 2004 WL 2725124 (Nov. 29, 2004) (same); Belbis v. County of Cook, 01-cv-6119, 2002 WL 31600048, at *7 (N.D. Ill. Nov. 18, 2002) (finding commonality among employees when employer failed to pay overtime for pre- and post-shift activities); Ladegaard, 2000 WL 1774091, at *5 (finding that although there were “differences in the details of class members’ claims,” there is commonality because all claims relate to “certain categories of work during a particular period of time”); O’Brien v. Encotech Constr. Servs., 203 F.R.D. 346 (N.D. Ill. 2001); Yon v. Positive Connections, Inc., 04-cv-2680, 2005 WL 628016 (N.D.Ill. Feb. 2, 2005); see also infra Argument I.B.2(a).
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entire litigation is disposed of. If it fails, it will not be an issue in the subsequent individual
trials.” Id. at 490 (internal quotations and citation omitted). And the mere existence of a
potential defense that “may affect different class members differently does not compel a finding
that individual issues predominate over common ones.” Brown v. Kelly, 609 F.3d at 483
(internal quotations and citation omitted); accord Noble v. 93 Univ. Place Corp., 224 F.R.D. 330,
339 (S.D.N.Y. 2004) (rejecting this claim and certifying a class action of individuals claiming to
be misclassified as exempt under New York law). “Therefore, the question for purposes of
determining predominance is not whether a defense exists, but whether the common issues will
predominate over the individual questions raised by that defense.” Visa Check, 280 F.3d at 137.
Here, determining the applicability (or lack thereof) of Pfizer’s claimed exemptions presents a
more than sufficient nucleus of common issues binding the class together to permit certification.
Pfizer will also presumably argue that individual issues predominate because each
members’ damages for unpaid overtime may vary. This is a nonstarter. The Second Circuit has
squarely ruled that individualized damages determinations will not preclude a finding of
predominance. Visa Check, 280 F.3d at 139; In re Nassau County Strip Search Cases, 461 F.3d
219, 228 (2d Cir. 2006); see also Velez, 03-cv-8698, 2005 WL 106895, at *4 (certifying New
York law and FLSA class even though individualized damage inquiries will be necessary).
Here, issues concerning liability for unpaid overtime link the class neatly and
provide the basis for a systematic resolution.12
12 Variations in the statutes of limitations to be applied to particular claims do not effect predominance either, as “the same facts would be developed and the same evidence presented to the fact finder on [all] federal and state claims.” Chan v. Triple 8 Palace, 03-cv-6048, 2004 WL 1161299, at *3 (S.D.N.Y. 2004).
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2. A Class Action Is Superior to Other Methods of Adjudication
This consolidated action – which includes cases removed from the state courts, at
Pfizer’s behest, and one that was transferred from California by Pfizer – provides a single forum
to adjudicate the rights of thousands of class members in three states at one time, thereby
avoiding a multiplicity of repetitive lawsuits in different jurisdictions across the country.
Rule 23(b)(3) enumerates four non-exclusive factors pertinent to determining
whether a class action is superior to other methods of adjudication: “(A) the class members’
interests in individually controlling the prosecution or defense of separate actions; (B) the extent
and nature of any litigation concerning the controversy already begun by or against class
members; (C) the desirability or undesirability of concentrating the litigation of the claims in the
particular forum; and (D) the likely difficulties in managing a class action.” Rule 23(b)(3). All
of these factors weigh in favor of certification.
a. Combining State Law Opt-Out Classes with A Nationwide FLSA Opt-In Action Does Not Undermine Superiority
Pfizer has argued (and presumably will again) that the combination of a
nationwide opt-in action under the FLSA with three opt-out classes under Rule 23(b)(3)
undermines the superiority of the class action device over other methods of adjudication. Pfizer
is wrong. Its argument has consistently failed in this Circuit.
Courts in this Circuit “routinely certify class action[s] in FLSA matters so that
New York State and federal wage and hour claims are considered together.” Damassia, 250
F.R.D. at 163 (Lynch, J.) (alteration in original) (internal citation and quotations omitted); see
also Gardner v. Western Beef Props., 07-cv-2345, 2008 WL 2446681, at *2 (E.D.N.Y. June 17,
2008) (“[F]ederal courts in New York have regularly allowed the two to coexist.”) (collecting
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cases); Morrison v. Staples, Inc., 08-cv-616, 2008 WL 4911156, at *5 (D. Conn. Nov. 13, 2008)
(“[A]lthough there is some disagreement between courts over the issue of preemption and the
incompatibility of the FLSA and Rule 23 class actions, the precedent within the Second Circuit is
clear.”); Westerfield, 2007 WL 2162989 (E.D.N.Y. July 26, 2007) (opt-in nationwide FLSA
collective action permitted to proceed along with putative opt-out Rule 23 state wage and hour
claims for New York, California, Illinois, and New Jersey).13
Circuit courts addressing the issue have reached the same conclusion. In Lindsay
v. Gov=t Employees Ins. Co., 448 F.3d 416 (D.C. Cir. 2006), the D.C. Circuit held that the district
court improperly denied certification of the Rule 23 New York class, finding that a “mere
procedural difference” between the opt-in and opt-out classes does not prevent class certification.
Id. at 423-25. The Seventh and Ninth Circuits have reached the same conclusion. See Ervin v.
OS Rest. Servs., Inc., 632 F.3d 971, 973-74 (7th Cir. 2011) (“We conclude that there is no
categorical rule against certifying a Rule 23(b)(3) state-law class action in a proceeding that also
13 For additional cases certifying both FLSA collectives and Rule 23 classes on state law claims within the Second Circuit, see, e.g., In re Milos Litig., 08-cv-6666, 2010 WL 199688 (S.D.N.Y. Jan. 11, 2010); Alcantara v. CNA Mgmt., 264 F.R.D. 61 (S.D.N.Y. 2009); Willix v. Healthfirst, Inc., 07-cv-1143, 2009 WL 6490087 (E.D.N.Y. Dec. 3, 2009); Danieli v. IBM, 08-cv-3688, 2009 WL 6583144 (S.D.N.Y. Nov. 16, 2009) (settlement approval); Perkins v. S. New Eng. Tel. Co., 07-cv-967, 2009 WL 3754097 (D. Conn. Nov. 4, 2009); Gortat v. Capala Bros., 07-cv-3629, 2009 WL 3347091 (E.D.N.Y. Oct. 16, 2009) (Magistrate’s recommendation); Guzman v. VLM, Inc., 07-cv-1126, 2008 WL 597186 (E.D.N.Y. Mar. 2, 2008); Mendoza v. Casa De Cambio Delgado, Inc., 07-cv-2579, 2008 WL 3399067 (S.D.N.Y. Aug. 12, 2008); Gonzalez v. Nicholas Zito Racing Stable, Inc., 04-cv-22, 2008 WL 941643 (E.D.N.Y. March 31, 2008); Duchene v. Michael L. Cetta, Inc., 244 F.R.D. 202 (S.D.N.Y. 2007); Iglesias-Mendoza v. La Belle Farm, Inc., 239 F.R.D. at 368; Mentor v. Imperial Parking Sys., 246 F.R.D. 178 (S.D.N.Y. 2007); Toure v. Cent. Parking Sys., 05-cv-5237, 2007 WL 2872455 (S.D.N.Y. Sept. 28, 2007); Ebbert v. Nassau County, 05-cv-5445, 2007 WL 2295581 (E.D.N.Y. Aug. 9, 2007); Trinidad, 2007 WL 103073, at *9 (S.D.N.Y. Jan. 12, 2007); Lee v. ABC Carpet & Home, 236 F.R.D. 193 (S.D.N.Y. 2006); Torres v. Gristede’s Operating Corp., 04-cv-3316, 2006 WL 2819730 (S.D.N.Y. Sept. 28, 2006); Wraga v. Marble Lite, Inc., 05-cv-5038, 2006 WL 2443554 (E.D.N.Y. Aug. 22, 2006); Jankowski, 2006 WL 118973; Scholtisek v. Eldre Corp., 229 F.R.D. 381 (E.D.N.Y. 2005); Mascol v. E & L Transp., 03-cv-3343, 2005 WL 1541045 (E.D.N.Y. June 29, 2005); Scott v. Aetna Servs., 210 F.R.D. 261 (D. Conn. 2002); Ansoumana v. Gristede’s Operating Corp., 201 F.R.D. 81 (S.D.N.Y. 2001); Brzychnalski v. Unesco, Inc., 35 F. Supp. 2d 351 (S.D.N.Y. 1999); Cohen v. Gerson Lehrman Group, 686 F. Supp. 2d 317 (S.D.N.Y. 2010); Krichman v. J. P. Morgan Chase & Co., 06-cv-15305, 2008 WL 5148769 (S.D.N.Y. Dec. 8, 2008); Gardner, 2008 WL 2446681; Cruz v. Hook-Superx, LLC, 09-cv-7717, 2010 WL 3069558 (S.D.N.Y. Aug. 5, 2010).
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includes a collective action brought under the FLSA.”); Wang v. Chinese Daily News, Inc., 623
F.3d 743, 760-61 (9th Cir. 2010) (affirming certification of FLSA and California wage and hour
claims in same action).14
b. The Proposed Classes Are Manageable
Superiority also concerns the difficulties likely to be encountered in the
management of a class action. Here, where the state laws at issue are very similar to the FLSA
and there is nationwide common proof of Pfizer’s policy of misclassification, the case can be
managed without difficulty. See supra Argument I.B.2. As the Second Circuit has observed,
“failure to certify an action under Rule 23(b)(3) on the sole ground that it would be
unmanageable is disfavored and ‘should be the exception rather than the rule.’” Visa Check, 280
F.3d 124, 140 (2d Cir. 2001) (citing authorities).
Indeed, on motions for class certification, “most other district court cases from
this circuit have” held that “potential variation in state law among the plaintiffs’ claims” should
not be considered. In re Nigeria Charter Flights Contract Litig., 233 F.R.D. 297, 305 (E.D.N.Y.
2006) (collecting cases). This is because courts are deft at managing such variations in state law:
“even if there were to be variation, the Court has the ability to adjudicate a class action litigation
that could involve the application of numerous states’ laws.” Id.; see also In re Farmers Insur.
Exch. Claims Rep. Overtime Litig., MDL 1439, 2003 WL 23669376, at **2-7 (D. Or. May 19,
2003) (certifying class action for overtime under FLSA and seven states’ laws).15
14 The Third Circuit in De Asencio v. Tyson Foods, Inc., 342 F.3d 301, 307-12 (3d Cir. 2003) refused to exercise supplemental jurisdiction over state-law claims in a FLSA action. But that case involved “unique circumstances” not present here. See Ervin, 632 F.3d at 980 (distinguishing De Asencio); Wang, 623 F.3d at 761 (same). 15 Consistent with its general disfavor for denying class certification on manageability grounds, the Second Circuit has upheld “the use of subclasses corresponding to variations in state law.” In re Diamond Shamrock Chem. Co., 725 F.2d 858, 861 (2d Cir. 1984); Robinson, 267 F.3d at 171; Boucher v. Syracuse Univ., 164 F.3d 113, 118 (2d Cir. 1999). And, while Plaintiffs do not, as a technical matter seek the certification of sub-classes, they do seek the
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The Second Circuit and courts within it have repeatedly recognized the
availability of various procedural devices to ensure the manageability of class actions that
involve the law of several states. See, e.g., Jones v. Ford Motor Credit Co., 358 F.3d 205, 215-
16 (2d Cir. 2004). Accordingly, Second Circuit precedent encourages district judges to use the
full array of management tools available:
if the Court certifies the class action, its substantial predomination analysis under subsection 1367(c) should take into account the methods by which the class action might be managed in order to prevent the state law counterclaims from predominating. By bifurcating the litigation, certifying a limited class (perhaps only in-state plaintiffs), or utilizing other management tools, the District Court might be able to structure the litigation in such a way as to prevent the state law claims from predominating over the federal basis of the action, while maintaining the advantages inherent in providing a forum in which all of the litigants’ claims can be litigated.
Id. at 215-16; see also Visa Check, 280 F.3d at 141 (setting forth “management tools available to
a district court”).
The proposed classes are manageable. Plaintiffs’ motion should be granted.
C. The Court’s Prior Ruling is Not a Bar
Based on Pfizer’s opposition to Plaintiffs’ motion to consolidate and file an
amended complaint, it is likely that Pfizer will invoke the “law of the case” doctrine and argue
that Plaintiffs are precluded from seeking certification of any state law classes (or perhaps an
Illinois or California class). Pfizer’s argument must be rejected. “District courts have ample
discretion to consider (or to decline to consider) a revised class certification motion after an
initial denial.” In re Initial Pub. Offering Sec. Litig., 483 F.3d 70, 73 (2nd Cir. 2006) (collecting certification of multiple classes that share common facts and the application of state laws that are all modeled after the FLSA.
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cases). The denial need not be “without prejudice” nor does the renewed motion for class
certification need to be made within the motion for reconsideration time period. Id. The Second
Circuit recently reaffirmed this holding in Myers v. Hertz Corp., 624 F.3d 537, 557-58 (2d Cir.
2010), and explained it applied to both Rule 23 and FLSA class certification denials. Id. This
controlling authority disposes of the issue.
Finally, even if there were some bar to a successive motion to certify a class, the
new class compositions and posture of this motion would defeat it. Judge Hellerstein’s denial of
certification cannot be applied to the class claims in the then-separate Jeter and Oblitos-Rios
actions, as the Court never ruled on those claims. Under Pfizer’s previously presented logic,
Judge Hellerstein’s decision to deny certification would mean that no Plaintiff can bring any
state law class action against Pfizer if a similar FLSA claim is in any federal court. Such an
interpretation would allow Pfizer to deprive its employees of their state law rights, and eliminate
any state law class action claims against it, by simply removing those claims to federal courts
where FLSA claims are pending (as it did in Oblitas-Rios and Jeter), and then claiming it is too
complicated for a state law class action to continue.
II. COUNSEL SHOULD BE DESIGNATED PURSUANT TO RULE 23(g)
A “court that certifies a class must appoint class counsel” after considering
counsel’s experience, knowledge, and resources. Rule 23(g)(1). This standard is easily met as
Plaintiffs have retained counsel who are qualified and experienced in plaintiffs’ class action and
employment litigation. Counsel have decades of collective experience litigating plaintiffs’ class
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actions as well as FLSA and state labor claims, and have in the past repeatedly and successfully
managed large class-action litigations on a similar scale. 16
All counsel in the pre-consolidated Coultrip action seek appointment as Class
Counsel for all three classes, including the specific designation of Emery Celli Brinckerhoff &
Abady LLP (“ECBA”) as Lead Class Counsel for all three classes. Counsel in the pre-
consolidated Jeter action, Osborne Law, P.C., seeks appointment as Class and Liaison Counsel
on behalf of the New York Class only. Counsel in the pre-consolidated Oblitas-Rios action,
Cohelan Khoury & Singer, seeks appointment as Class and Liaison Counsel on behalf of the
California Class only.
CONCLUSION
For the reasons set forth above, Plaintiffs respectfully requests that: (a) the Court
certify three state law classes under Rule 23: the California Class, New York Class, and the
Illinois Class; and (4) designate ECBA as Lead Class Counsel for all three classes; Cohelan
Khoury & Singer as Liaison Class Counsel for the California Class only; Osborne Law, P.C. as
Liaison Class Counsel for the New York Class only; and all plaintiffs’ counsel of record in the
original Coultrip action as Class Counsel for all three classes.
16 ECBA is a law firm with extensive experience in class action lawsuits and civil rights litigation that has served or is currently serving as class counsel in: McBean v. City of New York, 260 F.R.D. 120 (S.D.N.Y. 2009) (certifying Rule 23(b)(3) class of persons subjected to unlawful misdemeanor pre-trial strip search policy); Casale v Kelly, 257 F.R.D. 396 (S.D.N.Y. 2009) (certifying Rule 23(b)(2) and (b)(3) classes of persons arrested for subsections of loitering statute declared unconstitutional); McBean v. City of New York, 02-cv-5426 (GEL), 2007 WL 2947448 (S.D.N.Y. Oct. 05, 2007) (certifying Rule 23(b)(2) class of persons subjected to unlawful misdemeanor pre-trial strip search policy); Brown v. Kelly, 244 F.R.D. 222 (certifying Rule 23(b)(2) class and Rule 23(b)(3) plaintiff class of persons arrested for loitering for the purpose of begging), rev’d in part on unrelated grounds, 609 F.3d 467; In re Nassau County Strip Search Cases, 461 F.3d 219 (2d Cir. 2006) (reversing and certifying Rule 23(b)(3) class of persons subjected to unlawful misdemeanor pretrial strip search policy); D.D. v. New York City Dep’t of Educ., 03-cv-2489 (DGT), 2004 WL 633222 (E.D.N.Y., Mar. 30, 2004) (certifying Rule 23(b)(2) class of New York City preschool children seeking to enforce the Individuals with Disabilities Education Act); Ingles v. Toro, 01-cv-8279 (DC), 2003 WL 402565 (S.D.N.Y. Feb. 20, 2003) (certifying Rule 23(b)(1) and (2) class).
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Dated: June 9, 2011 New York, New York
Respectfully submitted,
EMERY CELLI BRINCKERHOFF & ABADY LLP
By: /s/ Matthew D. Brinckerhoff
Elizabeth S. Saylor Samuel Shapiro 75 Rockefeller Plaza, 20th Fl. New York, New York 10019 Tel.: (212) 763-5000 Fax: (212) 763-5001 Attorneys for Named Plaintiffs except Jeter and Oblitas-Rios; FLSA collective action members; and California, New York, and Illinois putative class members
Daniel A. Osborn Adrianne J. Leven OSBORN LAW, P.C. 295 Madison Avenue, 39th Fl. New York, New York 10017 Tel.: (212) 725-9800 Fax: (212) 725-9808 Attorneys for Plaintiff Jeter and New York putative class members
Michael D. Singer* Timothy D. Cohelan* J. Jason Hill* COHELAN KHOURY & SINGER 605 C Street, Suite 200 San Diego, California 92101 Tel.: (619) 595-3001 Fax: (619) 595-3000 Attorneys for Plaintiff Oblitas-Rios and California putative class members * Admitted Pro Hac Vice
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