Tuesday, April 17, 2012

FindLaw.com Remains No. 1 Consumer Legal Website

FindLaw.com Remains No. 1 Consumer Legal Website
Press Release 17 April 2012

Legal information site remains top resource, generating 40 percent more unique visitors than its closest competitor

Eagan, Minn., April 17, 2012 – FindLaw.com has retained its position as the top destination for consumers looking for legal information or an attorney via the web, according to recent data from comScore, a leader in measuring the digital world, which found that nearly 40 percent more people used FindLaw.com than its closest competitor when searching for legal information or a lawyer in 2011.*

The comScore Media Metrix data also revealed that:
  • An average of nearly 2.2 million consumers visited FindLaw.com each month in 2011, which is double the number of visitors for its nearest competitor.
  • Visitors to FindLaw.com viewed an average of more than seven million pages each month on the site. In comparison, visitors to the closest competitor’s site viewed less than half that number of pages.
 “The data confirms that FindLaw remains the go-to source for free online legal information,” said Steve Noel, vice president of strategic development and audience at FindLaw. “The FindLaw Lawyer Directory is the largest online attorney directory, with more than one million listings that are searchable by name, location and practice. It also had 10 percent more visits in 2011 compared with 2010. We’re proud of these results because they illustrate that we are fulfilling our mission of connecting people with attorneys who can meet their legal needs.”

However, the Lawyer Directory is just one of many factors that accounts for the enduring popularity of FindLaw.com. Relevant, easy-to-access content also plays a key role, Noel said, noting that the site includes a wealth of consumer resources, including articles, blogs, FAQs and discussion boards.

*Study results based on a custom-created ranking of consumer legal websites by FindLaw, derived from comScore Media Metrix data. Analysis based on an annual, 12-month average comparing 2011 unduplicated visitor data between FindLaw.com and Martindale-Hubbell directories (lawyers.com and martindale.com) measuring site traffic/use between FindLaw and Martindale-Hubbell.

About FindLaw
FindLaw, part of Thomson Reuters, is a leading provider of free intelligent legal information, online marketing and client development services, providing the legal industry and consumers with the knowledge to act. Home to the largest online directory of lawyers that assists consumers in finding an attorney by practice area, FindLaw.com (www.findlaw.com) is the most popular legal website with millions of consumers visiting each month for free information about a legal topic, to solve a legal problem or to find a lawyer.

Thomson Reuters
Thomson Reuters is the world's leading source of intelligent information for businesses and professionals. We combine industry expertise with innovative technology to deliver critical information to leading decision makers in the financial and risk, legal, tax and accounting, intellectual property and science and media markets, powered by the world's most trusted news organization. With headquarters in New York and major operations in London and Eagan, Minnesota, Thomson Reuters employs approximately 60,000 people and operates in over 100 countries. Thomson Reuters shares are listed on the Toronto and New York Stock Exchanges. For more information, go to www.thomsonreuters.com.


Michelle Croteau
Tel: +1-651-687-5330

Pharmaceutical Sales Representatives Perplex U.S. Supreme Court in Suit for Overtime Pay under the Fair Labor Standards Act : Department of Labor Changes Long-Standing Policy on Outside Salesmen

Mark Sherman of the Associated Press has the story at SFGate at High court weighs overtime pay for drug sales reps.

The legal question presented to the U.S. Supreme Court in 11-204, Christopher v. SmithKline Beecham Corp., at oral argument April 16, 2012, was whether pharmaceutical drug representatives, who make no actual sales to physicians but merely inform doctors about new drugs (viz. "tout" them for purposes of inducing prescriptions), are salespeople within the context of the Fair Labor Standards Act, which exempts many sales jobs from overtime pay.

At odds are two Circuit Court of Appeals decisions. As written by James Vicini of Reuters at the Chicago Tribune in Supreme Court hears Glaxo overtime pay case:
  • the 9th Circuit Court of Appeals in California held that drug reps were "outside sales" personnel exempt from federal overtime pay requirements, as they in fact have been regarded for the past 70 years,
  • the 2nd Circuit Court of Appeals in New York held that pharmaceutical drug representatives qualified for overtime under the Fair Labor Standards Act because they were not "outside sales" personnel within the meaning of the Fair Labor Standards Act as interpreted by the Secretary of Labor in an uninvited amicus brief. [Note that the U.S. Supreme Court has established the precedent that agency interpretations of regulations are entitled to "controlling" deference. Auer v. Robbins, 519 U.S. 452, 461 (1997). But does that apply to policies implemented via an amicus brief?]
The ABA writes:
"The outside sales exemption of the Fair Labor Standards Act exempts from the overtime requirements of the Act "any employee employed ... in the capacity of outside salesman (as such terms are defined and delimited from time to time by regulations of the Secretary ...)." 29 U.S.C. § 213(a)(1).
The Secretary of Labor has implemented various regulations that "define and delimit" the outside sales exemption and, filing as amici in this and other related matters, has interpreted these regulations to find the exemption inapplicable to pharmaceutical sales representatives. A split exists between the Second and Ninth Circuits concerning whether this interpretation is owed deference and whether the outside sales exemption of the Fair Labor Standards Act applies to pharmaceutical sales representatives.
The questions presented are:
(1) Whether deference is owed to the Secretary's interpretation of the Fair Labor Standards Act's outside sales exemption and related regulations; and
(2) Whether the Fair Labor Standards Act's outside sales exemption applies to pharmaceutical sales representatives."
If the Supreme Court were to find against the pharmaceutical industry, it could mean billions of dollars of retroactive pay for overtime work in spite of a non-overtime pay system for drug reps that has existed for ca. 70 years.

Justice Kennedy asked in oral arguments whether the nature of the work of detailers had changed in the last 5 or 10 years, so that the 70 years of policy under discussion could be seen as no longer relevant to the issue.

Justice Ginsburg asked:
"Why not just look to the regulations that define -- the regulations that define "sale" and that define "promotion."  The 541.503 says promotion work incidental to a sale made by somebody else is not exempt.

Why do we get into the amicus brief when we have in these 541 regulations a definition of sales on the one hand, promotion on the other, and then this statement that promotion work incidental to sale made by somebody else is not exempt?

Why doesn't -- why isn't that the answer to this case?"
Justice Breyer outlined the scope of the Supreme Court's decision-making quandary in this case:
"... I would like to go back to Justice Kennedy's question, and this is only me speaking.  I don't know how anybody else feels.  If this had come up in 1941, you [the pharmaceutical company] wouldn't have had a chance....

But now it's difficult for me because of the passage of 75 years.  And we can blame it in part on the industry or in part on the Secretary [of Labor].  There is blame to go around.  So the question is, what do I do as a judge?

And partly my instinct is get somebody to decide this other than a lawyer in the Department of Labor, because this is a hard question.  And that's where we come to Justice Kennedy's question, which is he says all right, fine, let's write that and -- and what case do we cite?

And I don't agree with you, overturn Auer. I think amicus briefs are often helpful, but use them with care.  And then I have the statute here, which talks about the Secretary doing the definition of "outside salesman," and I have lots of rules and regulations and reports, which are fairly ambiguous in my opinion.  So you tell me what to say." [black bracketed material added by LawPundit]
Mr. Clement answered:
"I would start by citing -- I know it's not always in fashion to cite lower court opinions, but I would start by citing Judge Posner's opinion in Yi.... [Yi v. Sterling Collision Centers Inc, 480 F. 3rd 505, 7th Circ., 2007]

[H]e said along these lines that the 70 years of history makes a significant difference.  And here's the thing.  Just like you expect an agency to confront a change of position, you would at least expect an agency to confront the retroactive consequences and in that sense address them and make sense of it.  And I would just simply say this, which is if you had a rulemaking you could bring in all of the affected parties, including the current sales representatives, who are not the ones bringing these lawsuits, whose jobs are going to be changed, and you could make a comprehensive view, as opposed to just getting one side of an ongoing litigation and then making a decision about an amicus brief." [bracketed material added by LawPundit]
As regards the amicus brief by the Department of Labor, which incurred some wrath from the Justices, the DOL also rightly came under some harsh criticism from Justice Scalia for filing amicus briefs in all these cases, rather then resolving the underlying issues internally by the normal process of hearings and rulemaking. Justice Scalia reprimanded the DOL, speaking as if he were the DOL:
"[I]nstead of doing rulemaking, instead of doing  adjudication, we're [i.e. "the agency", the DOL] going to file amicus briefs, and the court will accept our view in that amicus brief and, hey, presto, we have made law." [black bracketed material added by LawPundit]
That amicus procedure might perhaps be limited by the Supreme Court decision in this case, since the Supreme Court can arguably not permit government agencies to "implement" regulations via amicus briefs, thus essentially usurping the authority of the Supreme Court. Amicus briefs from agencies are there to raise arguments that derive from policies ALREADY implemented via normal (and extensive) administrative procedures, and are not intended to serve as shoot-from-the-hip policy-making instruments for new policies. That is NOT the deference that the U.S. Supreme Court intended in Auer, a case which, as Breyer noted in passing, would not be overturned:
"And I don't agree with you, overturn Auer.
I think amicus briefs are often helpful, but use them
with care."
So, from our point of view, Auer could be used equally well to limit amicus briefs to the presentation of agency regulations already fully implemented, and, if implemented to change long-standing policies, necessarily reflecting well-known administrative procedures... but not de novo regulating.

In the event of a finding that PSRs are now entitled to overtime pay, we would forbid retroactive liability in this case because of the agency change of long-standing policies, basing the decision on the same logic used to legalize adverse possession or easements by prescription, i.e. the 70 years of previous policy -- rightly or wrongly applied -- creating a "right" not to be liable retroactively.

For the necessary background in this case, we reproduce here an order by United States District Judge Frederick J. Martone in Christopher et al v. SmithKline Beecham Corporation (Document 99, which is an ORDER denying Motion to alter or amend the judgment, signed by Judge Frederick J. Martone on January 29, 2010):

"On November 20, 2009, we entered an order (doc. 93) granting summary judgment in favor of defendant, based on our conclusion that pharmaceutical sales representatives fit within the outside sales exemption of the Fair Labor Standards Act (“FLSA”). 29 U.S.C. § 213(a)(1). We now have before us plaintiffs’ motion to alter or amend the judgment (doc. 96), defendant’s response (doc. 97), and plaintiffs’ reply (doc. 98).

This case turns on the definition of “sale” under the FLSA. Before we entered our order, plaintiffs submitted an amicus curiae brief filed by the Department of Labor (“DOL”) in an action pending in another circuit, in which the DOL took the position that a “sale” for the purpose of the outside sales exemption “requires a consummated transaction directly involving the employee for whom the exemption is sought.” DOL brief at 11. The DOL opined that because pharmaceutical sales representatives do not make “actual sales,” id. at 5, 10, the outside sales exemption does not apply. The arguments raised in the DOL brief were the same arguments presented in plaintiffs’ briefs in the instant action. We have considered each of those arguments and rejected them. Nevertheless, plaintiffs now contend that the position taken by the DOL in its amicus brief is entitled to controlling deference. We disagree.

Under Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44, 104 S. Ct. 2778, 2782 (1984), a court must give effect to an agency’s regulation containing a reasonable interpretation of an ambiguous statute. Here, the DOL’s interpretation is contained in an amicus brief and was not subject to the rigors of the Administrative Procedure Act, or otherwise promulgated in the exercise of the agency’s rulemaking authority. “[I]nterpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law–do not warrant Chevron-style deference.” Christensen v. Harris County, 529 U.S. 576, 587, 120 S. Ct. 1655, 1662 (2000); see also Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 157, 111 S. Ct. 1171, 1179 (1991); Gonzales v. Oregon, 546 U.S. 243, 255-56, 126 S. Ct. 904, 915 (2006).

Nor is the DOL’s amicus brief entitled to deference under Auer v. Robbins, 519 U.S. 452, 461, 117 S. Ct. 905, 911 (1997). While an agency’s interpretation of its own regulations is generally entitled to substantial deference, id., the regulations at issue here merely restate the terms of the statute itself. The FLSA defines “sale” as “includ[ing] any sale, exchange, contract to sell, consignment for sale, shipment for sale, or other disposition.” 29 U.S.C. § 203(k). The regulations, in turn, provide that an employee is exempt as an outside salesperson if the employee is “making sales within the meaning of [29 U.S.C. § 203(k)].” 29 C.F.R. § 541.500(a)(1)(i). The regulations only marginally expound upon the statutory definition by providing that “[s]ales within the meaning of section 3(k) of the Act include the transfer of title to tangible property, and in certain cases, of tangible and valuable evidences of intangible property.” Id. § 541.501(b). Plaintiffs’ reference to regulations that define “promotion work,” 29 C.F.R. § 541.503, and “primary duty,” id. § 541.700, do not serve to define or delimit the definition of “sale,” and therefore do not advance their position. Because the underlying regulations largely repeat the statutory language, they “give[ ] little or no instruction on a central issue in this case.” Gonzales, 546 U.S. at 257, 126 S. Ct. at 915.

The DOL “does not acquire special authority to interpret its own words when, instead of using its expertise and experience to formulate a regulation, it has elected merely to paraphrase the statutory language.” Id. 546 U.S. at 257, 126 S. Ct. at 916. Instead, the DOL’s current interpretation in the amicus brief is “entitled to respect” only to the extent it has the “power to persuade.” Id. at 256, 126 S. Ct. at 915 (quoting Skidmore v. Swift & Co., 323 .S. 134, 65 S. Ct. 161 (1944)). We find the DOL’s interpretation unpersuasive.

According to the DOL, “a ‘sale’ for the purposes of the outside sales exemption requires a consummated transaction directly involving the employee for whom the exemption is sought.” DOL brief at 11 (emphasis added). This language, however, is inconsistent with the statutory definition which provides that a “sale” includes not only a “sale” as that term is traditionally defined, but also “other disposition.” 29 U.S.C. § 203(k). Moreover, the DOL’s attempt to now constrict and limit the statutory definition to “actual sales,” DOL brief at 5, 10, is contrary to the DOL’s previous interpretations that broadly defined the outside sales exemption as requiring a sale “in some sense.” Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees, 69 Fed. Reg. 22122, 22162 (Apr. 23, 2004).

Not only is the DOL’s current interpretation inconsistent with the statutory language and its prior pronouncements, but it also defies common sense. Pharmaceutical sales representatives are salespeople. They make sales the way that sales are made in the pharmaceutical industry. Any other construction ignores reality and defeats the spirit and purpose of the exemption. Under the DOL’s interpretation, there are no salespersons in the pharmaceutical industry. This would come as a great surprise to the physicians of this country whose waiting rooms are filled with drug sales reps and the millions of television viewers who are bombarded with drug advertising every time the set is turned on. But because title under the Uniform Commercial Code passes at the drugstore, under the DOL view, the drugstore clerk is the salesperson. We reject this absurdity.

IT IS ORDERED DENYING plaintiffs’ motion to alter or amend the judgment (doc. 96).

DATED this 29th day of January, 2010.

Frederick J. Martone United States District Judge" 

It will be very interesting to see how the Court comes out on this case.

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