Law360, April 27, 2016 – Female Merck Workers Get Conditional Cert. In Sex Bias Suit

Posted April 27th, 2016.

As it appeared on Law360

By Alex Wolf

Law360, New York (April 27, 2016, 9:24 PM ET) — A New Jersey federal judge on Wednesday granted conditional certification to a group of former Merck & Co. Inc. female sales representatives bringing a $250 million gender bias suit against the company, allowing them to put other potential collective action members on notice of their Equal Pay Act claims.

U.S. District Judge Michael A. Shipp found that the women, who have accused Merck of freezing them out of advancement opportunities, had met the burden for conditional certification to allow them to give potential plaintiffs time and opportunity to preserve their bias claims and opt in to the suit.

In granting the conditional certification, the judge rejected Merck’s argument that the plaintiffs failed to meet a required evidentiary standard and are unable to show that there is a common unlawful policy or plan connecting the alleged EPA claims of female sales representatives nationwide.

“Here, the court concludes that plaintiffs have met their burden by making a modest factual showing that a nexus exists between the manner in which defendant’s alleged policy affected them and the manner in which it affected other employees,” the judge said. “Plaintiffs have submitted sufficient information at this stage to show that the sales representatives were performing similar responsibilities.”

Judge Shipp ordered the parties to submit a joint proposed collective action notice to the court for approval by May 27.

Despite granting the plaintiffs’ request for conditional certification, Judge Shipp declined to toll the statute of limitations for potential opt-in members’ EPA claims to account for the time spent seeking conditional certification, saying that they have not shown that they meet the “exceptional circumstances” needed.

The judge also denied a request that Merck send out a corrective notice regarding a companywide policy that inhibits employees from communicating with law enforcement and attorneys regarding investigations and litigation involving the company, saying that the policy only informs employees of what to do when contacted about an investigation of the company’s products.

The suit, which has been sectioned off into a collective action for EPA claims and a proposed class action for claims under Title VII of the Civil Rights Act, alleges that Merck cultivated a “boys club” environment — in which women were offered limited opportunities to advance due to stereotypes about men being breadwinners and women staying home with the children.

Merck had tried to get classwide claims nixed, but in October 2014, U.S. District Judge Joel A. Pisano said it was too early in the suit to dismiss the claims.

He said there hadn’t been enough discovery to toss the suit, which had recently been amended from lead plaintiff Kelli Smith’s original $100 million suit to include a few more plaintiffs and another $150 million in claims.

Over time, the battle shifted to whether the women could get collective action certification for EPA claims in order to send the notices before the end of discovery, which is when they would file for class certification.

In their motion for conditional certification of the collective action, the women put forth an argument that echoed that of a magistrate judge’s, saying they had a lower burden to just send out the notices to women who could join the suit.

But in October, Merck pointed out that the sales representatives had a fairly large scope of notice in mind. It said they are seeking to ask the court to order a notice be sent to about 3,500 women who have worked as sales representatives for Merck at any time from June 2009 to the present, in any division in all 50 states.

Speaking to Law360 on Wednesday, plaintiffs’ attorney Deborah K. Marcuse of Feinstein Doyle Payne & Kravec LLC said her side is “extremely pleased” with the decision allowing thousands of current and former female sales representatives around the country to get formal notice of the suit for the first time.

A spokesperson for Merck forwarded a statement to Law360 saying it will continue to vigorously defend itself, and remains committed to providing equal employment opportunities for all employees.

“We remain confident that this case lacks merit — this is a procedural step that is typical in the early stages of lawsuits of this kind, and it does not mean any employees have been treated unfairly,” the statement said.

The sales representatives are represented by Andrew Melzer, David Tracey and David Sanford of Sanford Heisler LLP and Deborah Marcuse of Feinstein Doyle Payne & Kravec LLC.

Merck is represented by Michael S. Burkhardt, Blair J. Robinson, Krissy Katzenstein and Cailin Heilig of Morgan Lewis & Bockius LLP.

The case is Kelli Smith et al. v. Merck & Co. Inc., case number 3:13-cv-02970, in the U.S. District Court for the District of New Jersey.

–Editing by Bruce Goldman.

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