Christopher v. SmithKline Beecham Corp., 2011 WL 489708 (9th Cir. 2011)

Michael Christopher and Frank Buchanan were employed as pharmaceutical sales representatives (“PSRs”) of SmithKline d/b/a GlaxoSmithKline (“Glaxo”) and were classified as outside salesmen exempt from the Fair Labor Standards Act. PSRs work outside of a Glaxo office and spend much of their time traveling to the offices of and working with physicians within their assigned geographic territories. The PSRs make calls on physicians to encourage them to prescribe Glaxo products to their patients. After the district court granted summary judgment to Glaxo, plaintiffs moved unsuccessfully to alter or amend the judgment based on the district court’s failure to consider an amicus brief filed by the current Secretary of the Department of Labor in a similar case pending before the Second Circuit Court of Appeals, In re Novartis Wage & Hour Litigation, 611 F.3d 141 (2d Cir. 2010). In affirming summary judgment for Glaxo, the Ninth Circuit concluded “we owe no deference to the Secretary’s current interpretation of the regulations, and, in any event, we respectfully disagree with that interpretation.” The Court concluded that “[w]hile not all steps in the PSR’s daily activities constitute ‘selling,’ that fact does not render the totality of those activities non-exempt promotion.”