misclassified it the plaintiff as exempt it's defendant's burden to establish that the plaintiff are the employee the not worth the number of hours she claimed that she with all due respect i don't think that answered my question my question is as a as a in fact i mean you deal with these cases sure in there's ways that the company can do that even now each rep is given a computer where they enter in their call notes after they call a physician that's and that's synchronized every night went off and for three is that how much i just don't know i'm just asking a simple question what it is far as how they keep track of time yeah i mean they can do it various ways to computer through emails to do that to their district this would be a problem we go way beyond this particular type of situation i mean it could be any so on everything is an outside sales person you know to be selling widgets i mean you have the same issue well ok i think you've answered to the that you can but let me let me ask if i might there say you you rely heavily as as i would if i were in your shoes not here correct so the fact that they think maybe there's a problem up there in that novartis case we're going in there but they don't come here is there any anything to be read into that you know i don't think so judge i don't know why the entitle to deference by this court under the hour on that point whether it's entitled to deference this your opponents tell us treating these farmer reps as  exempt employees has been the state of affairs for decades and in fact here in the eastern district of pennsylvania back in one thousand nine hundred two judge newcomer writes an opinion case that says these people are exempt administrative of employees are ex out at what point in time i guess if two questions on that this is the department of labor just asleep for more than a quarter century and they wake up in two thousand and nine and say hey wait a second those knicks or is it possible that that the department of labor for more than a quarter century is treating these people as exempt because they are exempt and if they want to change the law they need to go through rulemaking weiss report that these people are not exams under the f l a say now when you say it's clear that they're not exempt how could that be clear when literally for decades they're being treated as exempt and there are multiple opinions on the book including as i noted one from one thousand nine hundred two in this circuit not from the circuit but within this circuit that says very exact how can you make that pitch that it's clear that they're exempt when they have been treated excuse me that they're not exempt when they've been treated as exempt for decades well i don't know necessarily been challenge to this extent your honor and and also as i said the pharmaceutical industry that's why they've characterize these positions now whether they characterize them as outside sales people doesn't mean that they are outside salespeople i mean there is no property right that exists for the pharmaceutical industry that they have to have people who fit within the outside sales exemption when you say they haven't been challenged to this extent your opponents cite multiple district court cases from around the country where this challenge is then raised and knocked back by courts repeatedly again and again and again and again is should that court level plaintive prevailed on the outside sales exemption the district court found that she was not exempt under the outside sales exemption but that she was exempt under the administrative exactly there is across appeal here by johnson and johnson that she did fit into the employer for the administrative exemption you have to do that which is important to the business of the employer in this case is it that her employer was mak or johnson and johnson for the purpose of analyzing the administrative exam i think for the purpose of analyzing the ministry of exemption it doesn't matter judge well that is are there the same because all the reps whether they were because johnson johnson several subsidiaries or design they pharmaceutical reps at the go out and provide information to physicians there still they all operate under the same constraints that that convey the core messages they are developed by a marketing  they have to call on the a list of physicians that's provided to them by johnson and johnson if a call in those positions with the requisite number of times that johnson and johnson the man's they also are given visual aids that they cannot alter and they're also given critical reprints anything employer well i think different now they've both they all sell pharmaceutical products and that's their business and they don't do anything directly related and i just i'm perplexed by this because i  me neal to some drug company in oh also drug company or something and then there's a further sale in that somebody takes a prescription and buys a drive to the drugstore i mean well what is she selling i mean well it's not trying to convince people i mean that was how was that explained in the opinions she's trying to convince people to prescribe this but the sell she doesn't sell anything and they don't buy anything but i completely agree our that's why we it's our position that she doesn't fit under the outside sales guy understand that well one explanation is given that  she she's not selling they're not buying correct what she's doing is conveying information what she's acting really is a one on one advertisement to a doctor who's conveying the message to the doctor i offices where they've given me samples yes but i gather that that would probably be a i don't want to call it a gift but the company probably gives it to the doctor you know they hope to get something back for of course but they have one more on my nickel i'm trying to find out whether well my understanding of the facts is at least but neither side seems to disagree with this but verify for me if you would she's responsible for developing a business plan right in conjunction with her district manager analyses yes she's got a manager but it's her area and  she's responsible for coming up with a business plan that will satisfy the company that she's going to drive demand right you know but i would suggest that business plan in compass is calling on the the number the physicians that range a wants and the monster to call on the requisite number of times and conveying the messages that johnson and johnson wants are to combat certainly their targets that the that the company wants met but it's it's her plan she comes up with that she's responsible for executing it and she's her performance and incentives and pay revolve around the successful creation and execution of a plan that will result in more revenue for the company because the higher prescriptions right well i'm sure that's johnson johnson's argument well as a matter of fact that's the way it works isn't it well there's a number of factors that could influence wife is ition rights prescription i haven't seen any evidence in the record that there was one business men and women i mean they wouldn't be paying these farmer reps if they didn't have some experience over time and believing we send these people out and the stuff they do boosts revenue this is not an a charitable organization for them yes it's not that even if it's they're there to make money and so clearly over a long period of time they're under the belief that this does increase revenue drive the man i guess  suggesting that it doesn't drive the man now i'm suggesting that the reps are just a piece of the puzzle they go out and visit give the required message disposed to give s b card questions are supposed to give you know there's also consumer advertising just medical journals so much that they struggle peers so again there's numerous factors as to why doctors going prescribe even favorable formulae position on a managed care program it was going to be cheaper for the patient for the doctor to prescribe johnson and johnson's products they're more likely to prescribe it because they don't want to have the patient care a greater cost but if we assume these are sensible business people in the pharmaceutical industry they're not paying close to one hundred thousand dollars in cash alone not to mention benefits unless they think they're going to get more than that in terms of return by increased demand right logical i would think so but i mean the reason why they have to pay that they pay these much money to these rats is is a highly but i guess i didn't focus on the fact that j and j also has in the heel from the failure of the district or to say that she was under the  district court that she wasn't and after sales representative just because she didn't actually complete the sale is that is that the argument that's exactly it your honor it's an interaction where you have a r in if she didn't complete the sale and what she was doing this for the business of the company in its good will and giving its name now me doesn't have to be one of the other no it doesn't have to be judged by the standard of the administrative exemptions just before work that's directly related to the management or general business operations we're talking at a higher level developing marketing strategy to marketing developing promotion strategy she's just delivering a message she has no role in the development of the really on the second prong of the administrate exemption they did say that individuals who are not involved in higher level strategy making developing marketing or business strategies are not exempt under the outsiders under the administrat good morning may please to court my name is france today actually and i represent defendant happily johnson and johnson i want to address the administrative exemption position is that the district court properly held that myth which covered by the administrative exemption from the legionella laws you're not arguing then the cross appeal on the  are cross appeal your honor was a protective cross appeal the position is that both exemptions apply the regulations to deal with regulations specifically state that both exemptions can be applicable  but into the debate generally with its amicus brief up in the second circuit it it seems to be just the sort of thing that would would make that the plaintiff's attorneys delighted because it says these farmer reps they they're not administrative employees period well first of all and i think we need to look at it differently with respect to the administrative exemption and the outside sales exemption when you say it doesn't interpret the regulations i mean i'm not sure what you mean it distresses fax it it sure looked to me like they were saying stuff that was exactly on point by talking about reps discretion being so limited that it did not permit them to be viewed house administratively excel and what i'm saying is that's an application of facts to the regulation it is not an interpretation of the regulation itself in the deal well briefed in the vargas the deal well those not interpret the regulation itself it draws a conclusion based upon some very limited standards that's correct and their opinions particularly opinions that go through the regulatory approval process are given controlling weight under chevron in certain instances but in terms of this particular situation with the nevada's amicus brief with respect to the administrative exemption the deal well is not interpreting the regulation it is looking at the on a very simple your honor if you look at the record in this case smith herself testified that she was responsible for the management of her own business and having the flexibility and independence of being able to basically run my territory the way i saw fit her testimony she created a business plan for her territory she was responsible for revising it and updating it throughout the year precisely what the d l l says in it brief paid twenty one as one of the attributes of qualifying somebody for exemption she had valuated opportunities for market share growth presented by the physicians in her territory and prioritize those opportunities she planned and executed each sample based on her knowledge of the physician prior calls and other information she determined before each call had to approach the physician using in her own words in her deposition a different strategy for different types of customers at evidence is not novartis everything vission according to her own testimony has a button you can push judgement discretion the training materials in this case unlike the training materials in of artists say quote if you find that you are making identical call consistently throughout the day then you are not meeting the company's expectations they've each sales call is a sales promoting a product such as concert is in fact covered by the ministry of exemption as administrative work it's the second prong ishi exercising discretion and independent judgment with respect to a matter of significance i don't want one copy of one thing one precisely and we have a record here which i submit that based upon undisputed training materials undisputed witness testimony and more most importantly her own test mind her own testimony that she ran her territory she ran the territory as a business that she made judgments and time and time and when i asked her in her deposition about her judgments how did she decide it was all classic examples of independent judgment indiscretion  plenty cases i would call on the john allen line of cases in the first circuit cited approvingly in the two thousand and four preamble to the regulations by the d o l where precisely this sort of situation where doing that's right but on that record on a nevada's record they specify very limited work or discretion that the nevada's reps have and what i'm saying here is that our record that should should we not look at it that i know your honor i took her deposition you were going to say yes now that i took her deposition it's a video dept if you want we can produce the video she was not puffing when she was sitting in a witness chair as a plaintiff trying to make her case i can guarantee you that a similar one knew what the case was about sure she knew the case purported class representative in a case that cheat his brain she knew exactly what it's about and if you look at her testimony i mean i had to subject her to quote the crucial of cross examination to get at the truth she didn't got dropped out in my lap and then we also have other custom we have undisputed testimony from other individuals about what happened with other representatives and we have documentary evidence some of which i just read anyway she's also a sales person but isn't it true that she doesn't saudi think all she's trying to do is to get this edition is the right prescriptions where people will buy things which they might give them a prescription they might never even fill it not so i start to answer that question by looking at the statute section three k of the statute defines sale and i submitted it to find sale very broadly and it defines sale as any sell it then goes into consignment which is not your traditional sale but most importantly goes into or other disposition and i submit that in terms of contract construction congress the liberally made that is that when the deal well address sales deal well in its regulation came up with making sales and it defined making sales in the preamble to the  regulations as including someone who goes out in the paints a commitment for an order for which that individual is creditor now he is the issue like i agree that this is not what we would call a traditional normal sale where you go into a store buy something you give the money and you take it out we agree well what i'm saying is a congress intended more than that type of transaction with congress that had penetrated chris senate right i'm sorry i said if congress had intended more it could have said more right i mean that that the position you're putting forward has come up short in a number of cases as an oak but it's been it's been followed in a number of cases number one there are some cases where it came up short including in this case right but in looking at normal  tenants of can a contract or two statutory construction you need to look at how the statute is formulated and that word that phrase other disposition i submit suggest that congress and in its in its preamble to the regulations that making sales includes getting a commitment soliciting a commitment and getting credit for that order as a matter of law here  the way the dio isn't even addressed that in about a subpoena as a matter of law the prescription is the order so what we have is smith going out soliciting a prescription namely the order which is the only way that product in gets old and she's getting credit for that that is a sale on does that act as a matter of fact our are the number of prescriptions in her territory tra linear connection between her her cells and and the prescriptions can you respond to the point that your opponents make and that is rife through the d novartis brief that that pharma reps are scripted they've is a highly regulated industry they can't go off label without have run into problems with the f d a company in trouble so it has to be scripted there's no way it can't be scripted in order for them to operate within the law and therefore as their argument runs there really isn't any discretion here these are highly paid and skilled and probably very nice folks but there are reading from a script that first of all this issue of script is only one segment of the farmer reps duties  testimony earlier about how she manages her territory what else she does and so on so for that won't bore the court by going into that so it's just one sliver and that's when she what the doctor what she says now in the virus it appears that there were not only scripts and that putting a label on something like this can be dangerous because as you look at the record in of artists and you look at the record not case they will have core messages we have  decide which core message they use will which part of a core message and so on and so forth and that's to help avoid the off label promotion and things of that nature but there is discretion in terms of using which core message in our case and to what extent and and how to present it and now it for and tailoring messages i'm sure tailoring message to tailoring using which one fits based upon strategy and judgment and discretion but here's the issue and in in the vargas and this is what i think the deal focused on and maybe i don't know that's what i'm not here is that they were so stripped that they took the core message and they were so scripted that in delivering the core message the rep had to use that script that's not t c s in our situation council uses the dept of work script but if you look at what look at the record as what's being talked about in terms of the script it really isn't under oath talking about her job right but if you if you probe a little further she can hire anybody shouldn't supervise anyone she has to call the doctor she's told to call on just a call and then the number of times she's told to call them she's given segmentation information about each doctor and that is so specific that it tells her which message she's supposed to deliver to a particular doctor which visual aids you supposed to use with each particular physician it's no way for her to manage a business icicle as a as a factual matter are you telling us  d is is wrong because what i just heard him say to us from this podium what i took from their briefing to is that yes there are pre prepared materials which there have to be enough in a in a properly highly regulated industry like pharmaceuticals but that it's within the discretion of a skilled sales person now making a judgment about whether it fits outside sales or not but these these are so i think in common parlance sales reps they're going out pushing product that they have the capacity to make a judgment about  how they are are going to put the the core message to an individual doctor you seem to be saying no they were told for this doctor use this visual aid for that doctor use that visual aids where where is that in the record that's exercising discretion an independent judgment over a matter of significance when you know it worked with a lot of sales people in my life and i think they would be shocked to be characterized as automat taunts they view themselves generally speaking i and i and i'm guessing that she does too and i guess that her record the record shows she's thinking this way i'm an independent business person responsible for developing the business in my care tory i own it i got to go out there and get the business and if i don't get it i don't get paid the way i want to get paid and if i do get it i get the accolades and i get a bigger budget and i get maybe better territory and all the things that flow from it those are the sorts of things she's saying in her testimony evidently she doesn't feel like an aut why should we why should we take the spin that you're putting on it and say yes she's an automaton i'm not suggesting that she has an autumn of time to think everyone exercises some level of discretion on their job but just using the phrase discretion outside sales exemption it's defendants burn and to show that these that the plaintiff it's plainly unmistakably within the exemption now for the outside sales the defendant focuses on other disposition i think  the doctrine used use then generis which means of the same kind that prohibits a broad expansion expansive definition of the term sales and the fact that these exemptions are to be narrowly construed that doctrine should be applied and again it shows that what she does is not sales just does no exchange of good doesn't enter the contracts and take orders no binding and there's also this