D'Este v. Bayer Corp., 050509 FED9, 07-56577o

Docket Nº:07-56577o
Party Name:Gina D'Este, on behalf of herself and others similarly situated, Plaintiff-Appellant, v. Bayer Corporation; Does, 1-50, Defendants-Appellees.
Case Date:May 05, 2009
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Gina D'Este, on behalf of herself and others similarly situated, Plaintiff-Appellant,


Bayer Corporation; Does, 1-50, Defendants-Appellees.

No. 07-56577o

United States Court of Appeals, Ninth Circuit

May 5, 2009

D.C. No. CV-07-03206-JFW-PLA Central District of California, Los Angeles

Before: Daniel M. Freedman,[*] Andrew J. Kleinfeld and Sandra S. Ikuta, Circuit Judges.



We respectfully request that the Supreme Court of Califor­nia exercise its discretion to decide the certified questions set forth in Part II of this order.

I. Caption and Counsel

A. The caption of the case is:

No. 07-56577

GINA D'ESTE, on behalf of herself and others simi­larly situated, Plaintiff - Appellant,


BAYER CORPORATION; DOES, 1-50, Defendants - Appellees.

B. The names and addresses of counsel for the parties are:

For Plaintiffs-Appellants:

James A. Jones, Gillespie, Rozen, Watsky & Jones, P.C., 3402 Oak Grove Ave., Suite 200, Dallas, Texas, 75204.

For Defendants-Appellees:

Melinda S. Riechert, Morgan, Lewis & Bockius LLP, 2 Palo Alto Square, 3000 El Camino Real, St. 700, Palo Alto, Califor­nia 94306-2122;

Thomas M. Peterson and Shannon B. Nakabayashi, Morgan, Lewis & Bockius LLP, One Market, Spear Tower, San Francisco, Cal­ifornia 94105;

Jennifer White-Sperling, Morgan, Lewis & Bockius LLP, 5 Park Plaza, Suite 1750, Irvine, Califor­nia, 92614.

C. Designation of the party to be deemed petitioner: Plaintiff-Appellants

II. Questions Certified

Pursuant to Rule 8.548 of the California Rules of Court, a panel of the United States Court of Appeals for the Ninth Cir­cuit, before which this appeal is pending, requests that the Supreme Court of California answer the questions presented below. This court will accept the California Supreme Court's decisions on these questions. Our phrasing of the questions is not intended to restrict the California Supreme Court's con­sideration of the case. The questions certified are:

1. The Industrial Welfare Commission's Wage Orders 1-2001 and 4-2001 define "outside salesperson" to mean "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." 8 Cal. Code Regs., tit. 8, §§ 11010, subd. 2(J); 11040, subd. 2(M). Does a pharmaceutical sales representative (PSR) qualify as an "outside salesperson" under this definition, if the PSR spends more than half the working time away from the employer's place of business and personally interacts with doctors and hospitals on behalf of drug companies for the purpose of increasing individual doctors' prescrip­tions of specific drugs?

2. In the alternative, Wage Order 4-2001 defines a person employed in an administrative capacity as a person whose duties and responsibilities involve (among other things) "[t]he performance of office or non-manual work directly related to management policies or general business operations of his/her employer or his employer's customers" and "[w]ho customarily and regularly exercises discretion and independent judgment." Cal. Code Regs., tit. 8 § 11040, subd. 1(A)(2)(a)(I), 1(A)(2)(b). Is a PSR, as described above, involved in duties and responsibilities that meet these requirements

III. Statement of Facts

Gina D'Este worked for Bayer Pharmaceuticals for thirteen years as a pharmaceutical sales representative. Bayer's job description states that her job was to "[p]romote and sell Bayer Pharmaceutical Division's anti-infective products to targeted offices and hospital-based, high-potential physicians, including specialists." Bayer gave D'Este a roster of doctors and hospitals in her area and a list of Bayer products for which she was responsible. D'Este's job was to communicate information about her Bayer products to her roster of doctors and seek their non-binding commitment to write prescriptions for those products. She was also responsible for communicat­ing with hospitals in her territory to influence them to add the Bayer products for which she was responsible to their formu­laries.

Bayer refers to its PSRs as a sales force and individual PSRs as salespersons; Bayer also trains its PSRs in what it calls sales skills. Specifically, Bayer trained D'Este in a "con­sultative" selling method of engaging doctors in a dialogue about the products in order to influence their prescribing behavior. D'Este was trained on a message and had to adhere closely to the information provided by Bayer about its prod­ucts. Otherwise, she had the freedom to develop her own strategy for communicating with and influencing doctors. D'Este learned to customize her sales presentations "based upon physician style, time...

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