Former pharmaceutical representative Timothy Brennantoday filed a lawsuit in federal court in Manhattan against Warner Chilcott charging the drug corporation with illegally denying him compensation for overtime hours. The law firm of Joseph, Herzfeld, Hester & Kirschenbaum LLP represents Brennan.

The suit charges that during his four-and-a-half years of employment, Brennan often worked in excess of 40 hours a week but received an annual salary without overtime pay. The New York class action was filed on behalf of Brennan and all other pharma reps who worked for Warner Chilcott in New York during the last six years.

New York overtime law requires that employees be paid time-and-a-half overtime when they work more than 40 hours in a week, unless they are specifically exempt.

Attorney Charles Joseph, a partner with Joseph, Herzfeld Hester & Kirschenbaum LLP, stated, “The US Department of Labor recognizes that pharmaceutical reps are not exempt from overtime pay under the Federal Fair Labor Standards Act (FLSA), and New York overtime law is consistent with the FLSA.”

Joseph explained that the precedent for Brennan’s claim was set in the U.S. Court of Appeals for the Second Circuit, which found that Novartis pharma reps were entitled to overtime compensation on the same basic grounds alleged against Warner Chilcott.  (Novartis recently settled the overtime lawsuit for$99 million.) The Second Circuit issued a similar ruling in a case brought by pharma reps against Schering Plough, as have district courts in Connecticut and Illinois in cases against Boerrhinger Ingelehein and Abbott.

Brennan, who worked for the company in Manhattan, said, “For years, this company failed to pay representatives their earned overtime.  This lawsuit holds them accountable.”

“Our view is that Mr. Brennan and other Warner Chilcott reps are owed a great deal of money for working extraordinarily long hours with no additional compensation,” Joseph said. “This is a chance to achieve justice for the reps.”

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U.S. courts are showing increasing hostility toward Chevron and its CEO John Watson over the company’s $18 billion Ecuador liability as the oil giant’s plan to quash the landmark case continues to falter in the hands of American law firm Gibson Dunn & Crutcher, said representatives of the Amazon indigenous groups who offered an analysis of the 18-year case to its shareholders and industry analysts.

Leaders of the indigenous groups in Ecuador – who last year won the largest environmental court case in history — are presenting their analysis because Watson misled company shareholders about the case in an earnings call last Friday.  Watson failed to disclose his own conflict of interest in that he was a key Chevron executive who drove the purchase of Texaco in 2001 without properly vetting the company for its massive Ecuador liability, said Karen Hinton, the U.S. spokesperson for the Ecuadorians.

In the earnings call, Watson charged that the Ecuador case is part of an elaborate “fraud” to extort money from Chevron — a false statement that directly contradicts court findings based on scientific evidence, including evidence provided by Chevron itself, said Hinton.

“Watson uses rhetoric as a device to hide his failed leadership on the Ecuador case,” said Hinton.  “His comments about the Ecuador liability on the earnings call were misleading and should be treated with extreme skepticism by shareholders.”

For a more accurate analysis of the risks facing the Ecuador case than that Chevron is making in its quarterly calls or in its disclosures to the SEC, Hinton said shareholders should reference a report on the Ecuador case by Simon Billeness and Sanford Lewis that was published in May of last year prior to the company’s annual meeting. Both point out risks that Chevron has not completely disclosed, including the likelihood of standard collection actions against Chevron assets in various countries that are critical to the company’s operations.

Watson’s comments on the earnings call omitted key information that has emerged recently, as follows:

After eight-year trial, the Ecuador court in February 2011 found the company liable and imposed damages of $18 billion. The court found Chevron itself proved the company discharged billions of gallons of toxic waste into the environment, decimating indigenous groups and poisoning rivers and streams that local inhabitants rely on for drinking water.

On January 3, an Ecuador appellate court affirmed the trial court judgment and blasted Chevron for its “abuse of the judicial process” in Ecuador by filing frivolous motions and threatening a judge with jail time.  The court also upheld a punitive damages sanction against the company.

The U.S. Court of Appeals in New York last week rejected a Chevron attempt to seek a worldwide injunction blocking the Ecuadorians from enforcing their judgment, essentially nullifying the centerpiece of the U.S. component of the oil giant’s legal strategy.

Chevron’s lead outside law firm, Gibson Dunn & Crutcher, has created even greater risk for Chevron shareholders by bungling key aspects of the litigation.

Since the firm took over the matter in 2009, Chevron lost the underlying case;  lost at the appellate level; lost a motion to attach  assets of the Ecuadorians in the U.S.; seen its plan to block enforcement overturned by the U.S. federal appellate court; and been exposed to potential criminal liability for trying to bribe Ecuador’s government.

Documents recently obtained via U.S. discovery actions shows that Chevron engaged in extensive acts of corruption and fraud in Ecuador.  Chevron doctored soil samples to mislead the Ecuador court and used a secret lab to hide evidence of toxic contamination; paid $2.2 million in hush money to a man who threatened to expose the company’s corruption in the Ecuador trial; tried to entrap an Ecuadorian judge with secret video recordings, and used U.S.-based experts to lie to the Ecuador court about the company’s deceptive field sampling.

U.S. and Ecuadorian courts have sanctioned Chevron for the use of unethical litigation practices done at the behest of Gibson Dunn and its lead partner, Randy Mastro.  Several U.S. and Ecuadorian judges sanctioned Chevron for harassing witnesses, filing a frivolous lawsuit, and abusing the judicial process.

Recognizing it could not win the lawsuit on the merits, Chevron recently tried to bribe Ecuador’s government with a “donation” to an environmental project in exchange for the “settlement” of the legal case without the involvement of the plaintiffs, according to sources within Ecuador’s government. Chevron never denied the reports of the attempted bribe, which might violate criminal laws in both Ecuador and the U.S.

Chevron also suffered a major setback in a U.S. federal appellate court in Philadelphia when Mastro was harshly criticized for seeking the case file of an American lawyer who represented the Ecuadorians.  The panel unanimously overturned a trial court order secured by Mastro.

Chevron faces potential criminal and civil liability for orchestrating a video scandal to entrap the Ecuador trial judge in a trumped-up bribery scandal.  Several lawyers working for Chevron, including Robert Middlestadt of Jones Day, have been deposed or face potential depositions in the matter.

One of Gibson Dunn’s investigators on the Ecuador matter, San Anson, was caught trying to pay an American journalist to spy on the plaintiffs.

The Gibson Dunn strategy also includes fomenting open conflict between Chevron and Ecuador’s government, a tact considered grossly impolitic for an oil major.  Chevron is already facing likely criminal charges in Brazil – a country with enormous reserves coveted by the company — for lying about its recent spill off the coast of Rio province.

Mastro, the mastermind of Chevron’s increasingly shaky legal strategy, was laughed at as he was unable to answer basic questions posed by the New York appellate panel that issued its order last week.  One judge even asked whether Chevron’s legal expenditures on the case was a good use of shareholder money.

Hinton said shareholders needed full information to be able to understand the risks facing the company.

“With these numerous setbacks over the last several months, it is even more apparent that John Watson and Gibson Dunn have brought Chevron’s shareholders to the edge of the proverbial cliff,” said Hinton.

“No matter what Watson does, Chevron simply cannot change the fact its horrific contamination in Ecuador is visible to the naked eye and has been confirmed by journalists and courts the world over,” she added.  “The evidence is so overwhelming that no amount of trickery can save the day for Chevron at this point.

“It is also becoming increasingly obvious that Gibson Dunn has sold Chevron’s management a bill of goods for which it has charged hundreds of millions of dollars over the last two years,” added Hinton.  “If this management team doesn’t monitor the situation more carefully, some additional and very unpleasant consequences for the company’s shareholders could be in store.”

Image Courtesy of     http://www.flickr.com/photos/rainforestactionnetwork/

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Family Research Council (FRC) have praised the decision by the California Supreme Court to allow the proponents of California’s marriage amendment, Proposition 8, to defend its constitutionality in federal court.

The ruling was necessary because, although the amendment defining marriage as the union of one man and one woman was adopted by voters in 2008, California’s Governor and Attorney General have refused to defend it against a federal constitutional challenge in a case now known as Perry v. Brown.

Now-retired U.S. District Court Judge Vaughn Walker ruled in 2010 that Proposition 8 violates the U.S. Constitution. The decision was appealed to the U.S. Court of Appeals for the Ninth Circuit, but judges there asked the California Supreme Court to first rule on whether proponents have standing to defend California law when public officials refuse to do so.

FRC President Tony Perkins issued the following statement regarding today’s ruling:

“We welcome the decision of the California Supreme Court upholding the right of those who put California’s marriage amendment on the ballot to defend it in court.

“It is unconscionable that the Governor and Attorney General have abdicated their responsibility to defend their state’s constitution against attack in federal court. However, the silver lining is that the people’s decision to preserve the definition of marriage as the union of one man and one woman will now receive a robust defense, not merely a perfunctory one.

“We hope that the judges of the Ninth Circuit will recognize the absurdity of Judge Walker’s claim that a right to homosexual ‘marriage’ is found in the U.S. Constitution, and preserve the right of the people ofCalifornia to govern themselves,” concluded Perkins.

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A Mississippi man who was scheduled to be executed on Tuesday was granted a last minute stay.  Robert Simon, Jr., who was convicted of killing a family of four in 1990, received a stay by the U.S. Court of Appeals for the Fifth Circuit, according to a court document.

The Mississippi Department of Corrections said it was waiting for the court’s opinion, and was ready to carry out the orders of the court. The lethal injection was scheduled for 6PM local time and would have been the state’s third execution this month.  Simon and an accomplice robbed and killed a couple and their two children in Marks, Mississippi in February of 1990. Corrections official say that the pair shot all four family members and cut off the husband’s ring finger in order to steal his wedding band. The house was set on fire with all the bodies inside. A passing motorist saw the flames from the house and alerted authorities.

Simon had confessed to the killings following his arrest. He was found guilty of all murders and received three death sentences and one life sentence. His accomplice, Anthony Carr, also was convicted of four counts of capital murder and is currently on death row.

Judge Grady Jolly of the 5th U.S. Circuit Court of Appeals in New Orleans said the execution was halted to allow Simon time to prove mental incompetence. The panel determined that medical records including sworn affidavits of Simon’s lawyers and from a clinical neuropsychologist raised questions if Simon suffered a neurological injury when he fell in prison back in January.  Jolly, in a document released Wednesday, said the U.S. Supreme Court has made it clear that inmates cannot be executed unless, at the time of execution, they are aware of the crime, aware of the fact that they are about to be executed, and aware of the reason for execution.

“These medical records and affidavits, made under oath, raise substantial questions as to whether Simon had a neurological injury in January 2011 at the prison, which injury has so affected him, either temporarily or permanently, that he neither understands that he committed a crime nor that he is about to be executed,” Jolly wrote.

“Although this evidence has been presented, this panel has no basis to consider whether his claim has any merit, whether it is believable or unbelievable. Because there is no time for such a hearing before the date and time of execution, a temporary stay of his execution is necessary in order to answer these questions.”

Eighteen people have been executed in the United States so far this year, according to the Death Penalty Information Center.

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