Contreras v. Pfizer, Inc. et al

Filing 18

STIPULATION AND ORDER STAYING ACTION AND CONTINUING STATUS CONFERENCE re 17 . Status Conference set for 2/24/2012 10:30 AM in Courtroom 3, 5th Floor, San Jose before Hon. Jeremy Fogel. Signed by Judge Jeremy Fogel on 8/16/11. (dlm, COURT STAFF) (Filed on 8/17/2011)

1 KINGSLEY & KINGSLEY, APC

GEORGE R. KINGSLEY, ESQ. SBN-38022

2 ERIC B. KINGSLEY, ESQ. SBN-185123

[e-mail]

3 16133 VENTURA BL., SUITE 1200

ENCINO, CA 91436

4 [phone], FAX [phone]
5 CHARLES JOSEPH, ESQ. FED BAR #CJ-9442

JOSEPH & HERZFELD LLP

6 233 BROADWAY, 5TH FLOOR

NEW YORK, NY 10279

7 [phone]; FAX [phone]
8

Seeking Admission Pro Hac Vice

MATTHEW D. BRINCKERHOFF ESQ. FED BAR #

9 EMERY CELLI BRINCKERHOFF & ABADY LLP

75 ROCKEFELLER PLAZA, 20th FLOOR

10 NEW YORK, NY 10019

[phone]; FAX [phone]

11 Seeking Admission Pro Hac Vice
12 Attorneys for Plaintiffs
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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION

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PHILIP M. CONTRERAS, on
behalf of himself and all others
19 similarly situated,
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)
)
)
)
Plaintiffs,
)
)
v.
)
)
PFIZER INC., a Delaware
)
corporation, doing business in
)
California as PFIZER PRODUCTS, )
INC.; and DOES 1 to 50, Inclusive, )
)
Defendants.
)
______________________________ )

CASE NO.: CV 09-3405-JF
STIPULATION TO STAY ACTION
AND ORDER

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STIPULATION TO STAY ACTION

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THE PARTIES HEREBY STIPULATE AS FOLLOWS:

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PLEASE TAKE NOTICE that all parties desire to stay the proceedings in

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this action pending the outcome of three appeals that directly implicate the central

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issue in this case, i.e., whether pharmaceutical sales representatives are properly

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classified as exempt from Cal. Labor Code overtime requirements under either the

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outside sales or administrative exemptions. See D'Este v. Bayer, 07-56577, Barnick

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v. Wyeth, 07-56684, Menes v. Roche, 08-55286 (consolidated 9th Circuit appeals); In

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Re Novartis Wage and Hour Litigation, No. 09-0437 (2nd Cir.). A stay of this action

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pending a decision concerning the applicability of the outside sales and/or

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administrative exemptions under California and federal law will promote efficiency

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and conserve the resources of the court and the parties.

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On February 11, 2009, the Ninth Circuit Court of Appeals heard oral argument

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in the consolidated cases of Menes v. Roche, 08-55286, D'Este v. Bayer, 07-56577,

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and Barnick v. Wyeth, 07-56684. In all three appeals, the district courts had awarded

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summary judgment to defendants based on the outside sales exemption under

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California law.

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On May 5, 2009, the Ninth Circuit certified two questions to the California

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Supreme Court, addressing both the outside sales and the administrative exemptions

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as applied to pharmaceutical representatives.

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Supreme Court denied the Ninth Circuit's request. On July 15, 2009, the Ninth

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Circuit entered an order withdrawing Menes v. Roche, 08-55286, D'Este v. Bayer, 07-

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56577, and Barnick v. Wyeth, 07-56684 from submission pending issuance of the

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mandate in Harris v. Superior Court, No. 515655, review granted by 171 P.3d 545

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(Cal. 2007). The consolidated cases will be resubmitted to the Ninth Circuit within

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twenty days of the California Supreme Court's decision in Harris v. Superior Court.

On June 10, 2009, the California

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STIPULATION TO STAY ACTION

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On July 6, 2010, the Second Circuit Court of Appeals issued an opinion in In

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Re Novartis Wage and Hour Litigation, No. 09-0437 (2nd Cir.), 611 F.3d 141 (2010).

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This case involves the applicability of the outside sales exemption and the

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administrative exemption to pharmaceutical representatives under the Fair Labor and

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Standards Act (“FLSA”), New York state law, and California state law. The Ninth

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Circuit looking at an issue of federal law recently ruled that sales exemption applied

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to pharmaceutical sales reps Christopher v. Smith Kline & Beecham (9th Cir. 2011)

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635 F.3d 383. Plaintiff are in the process of filing a writ of certiorari to the United

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States Supreme Court.

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The Second Circuit held that the pharmaceutical representatives were not

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exempt under the outside sales exemption or the administrative exemption. The bulk

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of the Court’s analysis relied on the exemptions under the FLSA. However, the

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Second Circuit went on to note that the overtime wage requirements of “New York

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law and California law are not meaningfully different from the requirements of the

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FLSA.” In re Novartis Wage & Hour Litigation., 09-0437-CV, 2010 WL 2667337

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*15 (2d Cir. July 6, 2010). The defendant filed a Petition for Review to the United

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States Supreme Court, which was denied on February 28, 2011. See Novartis

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Pharmaceuticals Corp. v. Lopes, 131 S.CT. 1568 (2011).

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The decision in In re Novartis Wage & Hour Litigation, is obviously not

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binding on this Court. However, in the interest of providing this Court with a full

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status report of the state of the law regarding the core issues in this case, Plaintiff felt

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it was necessary to provide the Court with this information.

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Other federal district courts have stayed similar cases concerning the

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classification of pharmaceutical sales representatives pending appeals in related

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actions. See Silverman v. GlaxoSmithKline PLC, 06 cv 7272 DSF (C.D. Cal. Dec. 17,

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2008) [Dkt. No. 188]; Thorpe v. Abbott Laboratories, Inc., 5:07-cv-05672 RMW

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STIPULATION TO STAY ACTION

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(N.D. Cal. Mar. 5, 2009) [Dkt. No. 54]. Brody v. Astrazeneca Pharmaceuticals, LP,

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08-56120 (9th Cir. Mar. 3, 2009). Moreover, neither party would be prejudiced by a

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stay in this action.

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Wherefore, the parties respectfully request that the Court approve this

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stipulation for a Stay of Proceedings, and continue the Status Conference set for

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August 19, 2011, pending the resolution of one or both of the aforementioned

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appeals.

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IT IS SO STIPULATED

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DATED: August 12, 2011

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KINGSLEY & KINGSLEY, APC

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By: /s/ Eric B. Kingsley
ERIC B. KINGSLEY
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Attorney for Plaintiff
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DATED: August 12, 2011
LITTLER MENDELSON

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By: /s/ Kimberly J. Gost
PHILIP A. SIMPKINS
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KIMBERLY J. GOST
(Admitted pro hac vice)
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Attorneys for Defendants
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IT IS SO ORDERED. The status conference is continued to 2/24/12.

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8/16/11
DATED:________________

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JEREMY FOGEL
UNITED STATES DISTRICT JUDGE

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STIPULATION TO STAY ACTION