Female Workers Win Conditional Cert In $100M Sex-Bias Row

Posted September 2nd, 2015.

As It Appeared On
Law360

By Vin Gurrieri

Law360, New York (September 2, 2015, 9:27 PM ET) — A New York federal judge on Wednesday conditionally certified a group of female workers who filed a $100 million gender bias suit accusing Forest Laboratories Inc. of widespread discrimination, saying the employees cleared the minimal hurdle required for initial certification.

U.S. District Judge Michael H. Dolinger granted conditional certification to a collective class of female sales representatives under the Equal Pay Act who were employed by the Actavis PLC subsidiary between 2009 and 2014.

“In this case plaintiffs present various forms of evidence to demonstrate provisionally that the proposed collective of opt-ins are similarly situated to them and that there is at least a colorable basis for inferring — prior to full merits discovery — that defendants have violated their rights under the EPA,” the judge said.

Former Forest worker Megan Barrett and her fellow plaintiffs filed their proposed class action under Title VII and a collective action under the EPA, in July 2012. They said Forest engaged in sweeping discrimination against women, including paying them less than male counterparts.

An attorney for the plaintiffs said when the case was filed that they were seeking an estimated $100 million in damages.

In February 2013 the court gave the plaintiffs a green light to file a second amended complaint but said they would not be granted further leave to amend. The ensuing March 2013 complaint accuses Forest Laboratories and Forest Pharmaceuticals Inc. of “systematic, company-wide discrimination against women based on their gender, taking maternity leave, becoming pregnant or serving as caregivers.”

The proposed class would cover about 1,500 current and former sales representatives who worked for Forest after 2008, as well as a subclass of an estimated 150 to 300 sales representatives who worked for Forest while pregnant. The EPA collective group would comprise female sales representatives who weren’t compensated on par with men with similar duties.

After duking it out with Forest over discovery issues earlier this year, Barrett and her fellow plaintiffs moved for conditional class certification.

Their motion, filed under seal in May and made public in July, argued that the plaintiffs and other sales representatives are subject to uniform, centralized corporate policies and decision-making regarding their compensation, share common duties and other traits, and are paid less than men.

They also said that at this conditional certification stage, with discovery just beginning, they are using testimonial and statistical evidence of sex-based pay disparities in the sales representative position from 2009 through 2014.

The plaintiffs also asked for some leeway with certification, saying at the time that “the standard applied at the conditional certification stage is decidedly lenient, and plaintiffs’ burden minimal.”

Forest fired back, arguing in a late July opposition brief that the named plaintiffs in the proposed class and collective action have failed to show even that the company paid them less than men, let alone that it paid thousands of other women in the company less than their male comparators.

The plaintiffs responded in a reply brief that they have met the basic requirement for class certification at this stage in the proceeding, and that Forest’s arguments against certification got too deep into the weeds too early in the case.

In Wednesday’s ruling, the judge said the employees were able to provisionally show that female sales representatives — the entry-level position for Forest marketing personnel — are similarly situated. The plaintiffs were also able to mount enough evidence to back their claims alleging gender discrimination in pay to justify certification of a collective class, according to the order.

As far as Forest’s opposition, the judge said the drugmaker’s arguments failed primarily because its attacks against the workers’ evidence were premature at the notice stage, adding that many of the issues surrounding the plaintiffs’ evidence should be resolved at the summary judgment stage or at trial.

As part of the ruling, the judge also granted the workers’ request that a notice form to be sent to potential opt-in plaintiffs, but gave both sides seven days to consult and agree upon a form before the court decides whether to allow either sides’ version to be sent.

“Judge Dolinger’s decision today will certainly serve as a welcome reminder to women working in Big Pharma that they can join together under the Equal Pay Act to fight for an equal wage,” plaintiffs’ counsel Deborah Marcuse of Sanford Heisler Kimpel LLP said Wednesday.

Counsel for the defendants were not immediately available for comment Wednesday.

The plaintiffs are represented by Deborah Marcuse, David Sanford, Jeremy Heisler, Michael Palmer and Thomas Henderson of Sanford Heisler Kimpel LLP.

The defendants are represented by Michael S. Burkhardt, Blair J. Robinson, Krissy Anne Katzenstein and Lauren Emmaline Marzullo of Morgan Lewis & Bockius LLP.

The case is Barrett et al. v. Forest Laboratories Inc. et al., case number 1:12-cv-05224, in the U.S. District Court for the Southern District of New York.

–Additional reporting by Ben James and Aaron Vehling. Editing by Ben Guilfoy.

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