In $250 Million Class Action Gender Discrimination Suit Against Merck, Court Denies Merck’s Motion To Dismiss

Posted October 8th, 2014.

Plaintiffs’ Attorneys, Sanford Heisler, LLP Praise Decision as Part of a Trend

For more information contact: Jamie Moss, newsPRos, 201 788-0142,

Five female Merck sales representatives will proceed with their class-action gender discrimination lawsuit against Merck, according to a federal judge.  The five plaintiffs, on behalf of all female sales representatives at Merck, allege that Merck engaged in pay and promotion discrimination against the proposed female employee class, that comparable male sales representatives were paid more than women, and that Merck discriminated and retaliated against pregnant employees and those who took pregnancy leave. The five plaintiffs further charged that Merck was permeated with a “boys club” atmosphere that negatively affected pay and promotion for women.

In February 2014, before any substantial discovery had taken place, Merck moved to dismiss or strike the class allegations of the amended complaint. Merck argued that under the U.S. Supreme Court’s ruling in Walmart v. Dukes, the class claims were invalid and should be dismissed.

On October 8, 2014, Judge Pisano of the United States District Court for the District of New Jersey denied Merck’s motion to dismiss. The Court noted that “Hardly, if any, discovery has been completed and there has been little to no evidence put before this Court to evaluate the merits of Plaintiffs’ class claims and whether these claims suffice for purposes of Rule 23 certification” (Case 3:13-cv-02970-JAP-LHG). Judge Pisano also concluded that …Plaintiffs have certainly pled sufficient allegations to withstand the plausibility standard set forth in Rule 12(b)(6). The amended complaint is 69 pages replete with allegations surrounding Merck’s alleged policies and procedures resulting in disparate impact to female sales representatives which, as set forth above, this Court is required to accept as true for purposes of this motion. Further, the amended complaint contains 16 pages dedicated solely to factual allegations surrounding the requirements of Rule 23 – namely, numerosity, commonality, typicality, and adequate representation – in addition to the requirements of Rule 23(b).”   And, “. . . Plaintiffs’ have certainly pled sufficient allegations regarding Defendant’s promotion practices and subjective decision making such that Plaintiffs’ class claims are plausible,” therefore, “… Defendant’s motion is simply premature.”

Plaintiffs’ attorneys are Sanford Heisler, LLP. Jeremy Heisler, a managing partner of the firm, emphasized, “Merck’s motion to dismiss is part of a trend by employment discrimination defendants to make ‘Jump the Gun’ motions against class complaints. Before any significant discovery has occurred, defendants move to dismiss or strike the class claims arguing the allegations are insufficient on their face. The Court’s decision is also part of a trend denying such motions as ‘premature’.”

Andrew Melzer, a partner of Sanford Heisler, noted, “Our firm has defeated similar motions in Title VII and gender discrimination actions against Bayer and KPMG. We hope that the decision in Merck sends a signal to defendants against making such fruitless and wasteful motions.”

Deborah Marcuse, managing partner of Sanford Heisler’s New York office said, “We are gratified that Judge Pisano determined that our complaint plausibly alleged gender discrimination with the required specificity and should not be dismissed under Walmart v. Dukes. This latest decision should be a lesson to employers that they can’t simply invoke Dukes like Aladdin’s lamp and automatically convince a court to dismiss valid class allegations, such as those presented in our Merck complaint.”

About Sanford Heisler

Sanford Heisler is a public interest law firm with offices in Washington, D.C., New York, and San Francisco that specializes in employment discrimination, wage and hour, qui tam and other civil rights matters.  The firm has extensive experience in complex class action litigation having successfully represented thousands of individuals in major class action cases in the United States. The firm also represents select individual clients with a particular emphasis on the representation of executives and lawyers in employment disputes and whistleblowers. In May 2010, the firm won the largest jury award in the U.S. in a gender discrimination employment class action when a jury returned a verdict of $253 million in compensatory and punitive damages against Novartis Pharmaceuticals Corporation.  In 2012, the firm settled a wage and hour case on behalf of sales reps employed by Novartis Pharmaceuticals for $99 million.  Sanford Heisler has an impressive history of success in qui tam, or whistleblower cases brought under the False Claims Act, having represented whistleblowers in a 124 million dollar qui tam settlement with Omnicare, Inc., a 762 million dollar global qui tam settlement with Amgen, Inc., and a 23.5 million dollar qui tam settlement with Medtronic, all with the assistance of the U.S. Department of Justice.  In addition, Sanford Heisler has filed over 20 other whistleblower actions now pending throughout the United States, and is currently investigating and drafting additional matters across the United States.

For more information, contact Sanford Heisler at (646) 681-7373.