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D'Este v. Bayer Corp.

May 5, 2009

GINA D'ESTE, ON BEHALF OF HERSELF AND OTHERS SIMILARLY SITUATED, PLAINTIFF-APPELLANT,
v.
BAYER CORPORATION; DOES, 1-50, DEFENDANTS-APPELLEES.



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

FOR PUBLICATION

ORDER CERTIFYING DETERMINATIVE QUESTIONS OF LAW TO THE CALIFORNIA SUPREME COURT

Before: Daniel M. Freedman,*fn1 Andrew J. Kleinfeld and Sandra S. Ikuta, Circuit Judges.

ORDER

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

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 ยง 11040, subd. ...


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