united states district court southern district...

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)

Case 1:06-cv-09952-JCF Document 2880 Filed 06/09/11 of 51

i

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


ii

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


iii

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


iv

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


v

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


vi

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


vii

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


viii

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


ix

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


x

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


1

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.”


2

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.


3

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


4

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.


5

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.


6

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.


7

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


8

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


9

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


10

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.


11

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


12

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.


13

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


14

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.


15

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)


16

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


17

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


18

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


19

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


20

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


21

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.


22

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).


23

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


24

“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)).


25

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.


26

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,


27

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)


28

• 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.


29

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.


30

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


31

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


32

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).


33

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).


34

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


35

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).


36

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


37

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.


38

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


39

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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