Thousands may have Claim for Pharmaceutical Sales Rep Overtime

March 2nd, 2011. By LucyC

Well, it looks like the little guys could have it. Yesterday, February 28, 2011, the US Supreme Court announced that it would not reconsider appellate court decisions against Novartis and Merck Schering regarding unpaid overtime class actions.

Essentially, this means that Novartis may have to pony up $100 million or more in back overtime as settlement for some 2,500 plaintiffs. 

In so doing, the Supreme Court leaves intact two separate decisions against Novartis and Schering Corp. In July 2010, the 2nd Circuit issued a pair of rulings that found the pharmaceutical sales reps were covered by federal wage-and-hour law.   

But—it ain’t over as the expression goes—until the fat lady sings. At least half a dozen pharmaceutical companies are tied up in overtime suits, according to various media sources, and yesterday’s US Supreme Court decision presents a major conundrum. According to the attorneys that represented the Novartis employees, the various rulings against the pharmaceutical companies have ‘opened the floodgates for liability.’ This same law firm is currently representing plaintiffs in four identical wage-and-hour lawsuits against Pfizer, Roche, Merck and Abbott Laboratories. So the bigger question is—does this decision translate into overtime requirements for all pharmaceutical sales reps? (Now we’re talking tens of thousands of workers.)

That remains to be seen, in part because the courts themselves are guilty of issuing conflicting information—other appellate court decisions have decided in favor of the employers. The reason? It’s all down to interpretation. A report in the Star-Ledger indicates that this Supreme Court ruling was partly based on a brief from the Department of Labor that supports the sales’ reps stance on qualifying for overtime pay. As far as Novartis is concerned, they intend to evaluate ‘all legal options.’ Part of an email published in the Star-Ledger, from Novartis, states, “For decades, companies in the pharmaceutical industry have classified their sales representatives as exempt employees and have compensated them on a pay-for-performance basis, the same way they compensate executives, managers and other professionals.”

And, in a brief submitted by Merck, the pharmaceutical company reportedly wrote that another appellate court concluded that “no deference was owed to DOL’s new interpretation expressed in its brief.”(Star-Ledger). Of course Merck isn’t too happy about the Supreme Court ruling either. The company inherited an overtime lawsuit against Schering-Plough, when it acquired SP in 2009. 

It doesn’t help that the Supreme Court offered no comment whatsoever on its decision: an explanation making clear their reasons for their decision could have helped in reducing the likelihood of further legal wrangling—which will almost certainly occur because the stakes here are high indeed.   

The Pharmaceutical Research and Manufacturers Association (PhRMA), which is the leading trade group representing the US pharmaceutical industry, had argued in its petition to the Supreme Court that the lower court’s decision had “potentially far-reaching ramifications’’ for the industry, and called the decision against Novartis an error. “The decision unexpectedly exposes PhRMA members to potentially staggering retroactive liability from lawsuits by current and former employees,’’ the brief stated. “Serious consequences loom because of nothing more than an unexplained change in the Department of Labor’s interpretation of its regulations.’’ (Star-Ledger)

Of course, none of this changes the fact that the reps who filed the suit against Novartis—more than four years ago now—did put in the time—as much as 70 hours per week, according to their lawyers. 

Frankly, I can’t help thinking that the whole debate around unpaid overtime is just a little too Dickensian for 2011, and that a little more clarity would go a long way to improving the situation for both sides.

PetSmart Settlement: Take a Cue from Barbie and Pick up Poo

March 1st, 2011. By AbiK

This latest settlement—the PetSmart dog poop slip and fall settlement—reminds me of a post we did a while ago where we mentioned the PooTrap. Kind of a ridiculous looking contraption, but if whatever dog it was who pooped on the PetSmart floor had been wearing one of these, well, who knows…

See, back in January, 2009, a patron at PetSmart in Newport News, VA—a Robbert Holloway—apparently took a spill while in the store. A pretty bad spill from the sounds of it—he claimed he injured his back badly, hit his head and knocked out four teeth when he went crashing to the floor after slipping on dog poop.

So, he sued.

His lawsuit against PetSmart—a slip and fall premises liability lawsuit that claimed negligence on the part of PetSmart, sought $1 million in damages. The negligence allegation being due to his charge that the store manager should have protected him from the hazardous condition that allowing pets to poop on the floor creates.

Now, aside from the fact that yes, PetSmart and most other larger pet-centric retail establishments do have pets afoot in store aisles en route to a hair trim, nail clipping or other service—and yes, they pretty much “go” when and where the urge arises—this lawsuit begs the question of not only PetSmart employee roles and responsibilities, but also those of the pet owners who bring in their pooches and parakeets.

Seems to me that while PetSmart sales employees should have a sense of urgency regarding poop and pee pickups in their store aisles, customers-cum-pets also have a responsibility to clean up after their canine and feline charges. How is it that there are pooper scooper laws for sidewalks—as in OUTdoors ‘aisles’—and not the same or greater level of poop removal oversight for a linoleum floor indoors? Why, even Barbie had the sense to have a pooper scooper on hand for walks with Tanner (see video).

While I feel quite badly for Mr. Holloway—let’s face it, the combination of being physically hurt along with non-diminishing aroma of dog poop on your clothes would cause even the most apathetic of individuals to wince a bit—I think it’s time to not only hold PetSmart accountable where they ought to be, but it’s also time for pet owners to pick up after themselves—er, their pets.

Attorney Spencer Aronfeld and Lawyers to the Rescue

March 1st, 2011. By BrendaC

Lawyers Giving Back looks at a side of lawyers you don’t hear too much about—the side that gives back…pays it forward..and shares the love. We’ve found quite a number of attorneys who log non-billable hours helping others—simply because they believe it’s the right thing to do. Their stories are inspiring, and hey, who knew lawyers were so…good? If you’ve got a story to share about an attorney who’s doing the right thing, let us know—we’d love to let others know, too. Today, we’re talking with Florida attorney Spencer Aronfeld…

Attorney Spencer Aronfeld: “This is better than my day job. I’m not getting paid, but this is absolutely the most exciting experience I’ve ever had as a lawyer.”

Attorney Aronfeld of Lawyers to the Rescue

Attorney Spencer Aronfeld has a dream. He wants Lawyers to the Rescue to be known around the world as an army of attorneys ready to provide pro bono legal services wherever they’re needed to help people caught up in epic events. 

“My vision is that Lawyers to the Rescue becomes an organization like Doctors without Borders,” says Aronfeld who has been a personal injury and medical malpractice lawyer in Miami for over 20 years. “Maybe we can’t save lives like doctors, but lawyers can change and improve people’s lives in times of crisis.” 

It all started last year when Aronfeld was sitting on the tarmac in Miami aboard a private jet waiting to fly out to work on a Chinese Drywall case. He looked out the window of the plane and saw a group of tired and frightened earthquake refugees arriving from Haiti and he desperately wanted to help. 

Within a few days, Aronfeld and his wife Dina had raised thousands of dollars for the Haiti relief fund. But the Aronfelds thought there must be a way for lawyers to do more than raise money. 

They kicked Lawyers to the Rescue in gear and soon began offering free legal help to the homeless at a shelter in downtown Miami.  

When the BP Oil spill happened, a Texas doctor friend asked if Lawyers to the Rescue could come to a little village outside New Orleans, where a group of Vietnamese and Cambodian shrimpers were wondering how in the world they would support their families with the Gulf waters swimming in oil.

“They were living in these FEMA trailers left over from hurricane Katrina,” says Aronfeld, “and they spoke absolutely no English.” 

“BP was going to have these men go out there in their little shrimp boats and try to clean up this Read the rest of this entry »

Bet you can’t Shoplift $50 from Wal-Mart

February 28th, 2011. By LucyC

But $42.82 does go a long way at Wal-Mart…Police in New Jersey had a rather interesting encounter recently with a shoplifter who, when apprehended, explained that ‘his friends made him do it’. That is, he lost a bet, the penalty for which was to steal $50 worth of merchandise from Wal-Mart—or run naked through the streets.

Bit of a no-brainer as to which option he thought less challenging. But it turns out that 58-year old Irwin Krakow has, in addition to some lousy friends and poor judgement, a wee problem with math. He only stole $42.82 cents worth of stuff. 

Apparently he later admitted to the police that he regretted his choice of penalty—because the fine for running naked through the streets “would have been smaller.”  If he’d done his naked sprint during a snow storm chances are pretty good he wouldn’t have been arrested. In fact, it’s entirely possible he could have become a social media phenomenon. He could have become a celebrity and had a whole new career, done the talk show circuit, appeared on the Oscars, signed big fat product endorsement contracts, signed a record deal, done his own video, run for mayor, and pretty much retired in a couple of years, before the whole thing got too old. Oh well. Maybe next time. 

Weighty matter, costly matter? As for this guy, well, what can I say but ‘good luck mate’.  A Read the rest of this entry »

Lawyers Heading to STLA: Connect with our Team…Now!

February 28th, 2011. By AbiK

FYI for lawyers…If you’re heading to the Southern Trial Lawyers Association (STLA) for the Mardi Gras Conference later this week, don’t forget to pack your beads and scan us ahead of time to have a member of our team contact you. We’re setting up interviews, too–so let us know if you’re interested in having one of our writers contact you…see you in NOLA…