Thorpe v. Abbott Laboratories, Inc., 07-5672, 2008 WL 383319 (N.D. Cal., Feb 12, 2008).

Have you ever wondered what might happen if federal court judges were more like Randy, Paula, and Simon on American Idol?…Using the same wiretaps that caught Governor Spitzer, We secretly recorded the American Idol trio of judges discussing this recent CAFA decision.

“Yo, keepin’ it real here… I gotta say, that was really pitchy. I heard a bunch of key changes. You just didn’t bring it tonight, Dog.”


A federal district court in California recently ruled there was no fundamental incompatibility between the FLSA opt-in device and Rule 23’s opt-out model for wage-related claims in Thorpe v. Abbott Laboratories, Inc. In this case, former Abbott pharmaceutical representative Thorpe initiated a putative class action suit against Abbott in state court for violations of state wage laws. Abbott removed the case to federal court alleging diversity jurisdiction under CAFA. Also pending against Abbott in another federal district court was an FLSA collective action filed on behalf of the same group of employees based on the same facts as those forming the basis of Thorpe’s lawsuit. Thorpe was not a party to the FLSA action, however, he was represented by the same lawyer representing the plaintiffs in the FLSA action.


“The inherent incompatibility argument was not a great choice. You took a risk, but it was not your best performance, Abbott Labs. It did have a lot of color. (Shut up and let me talk, Simon.) You’ve got a lot of fans out there, so you’ll be back.” 


After removing the case, Abbott filed a rule 12 motion to dismiss or strike the class allegations. The court denied the motion. The court rejected Abbott’s claim there was an inherent incompatibility between FLSA collective actions (requiring parties to opt in) and Rule 23 class actions (requiring parties to opt out). The court noted that the FLSA expressly does not pre-empt more stringent state laws. Further, Abbott’s argument was based on a few district court cases decided in the context of supplemental jurisdiction rather than CAFA diversity jurisdiction. The court found this distinction determinative. Since the court’s basis for jurisdiction over Thorpe’s state law claims was diversity jurisdiction, there was no need to assess whether the state law claims predominated over the federal law claims, which had been key to the dismissal of state law claims in the cases Abbott cited.


“For once I agree with Randy and Paula (at least as much as I could understand what Paula was saying). That was absolutely dreadful. Especially the motion to strike, which was like bad karaoke or cruise ship cabaret.”


The court also rejected Abbott’s request to strike the class allegations, holding this was an argument more appropriately considered on a motion for class certification.


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(Stephanie John)