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Aguerre v. Schering-Plough Corp.

May 25, 2007

CARLOS ALBERTO AGUERRE, HUGO ARCHIMBAL, HECTOR HUGO CAAMAÑO AND MARIA CRISTINA FERNANDEZ, PLAINTIFFS-APPELLANTS,
v.
SCHERING-PLOUGH CORPORATION, A NEW JERSEY HOLDING COMPANY; ALFRED M. BLANCO, INDIVIDUALLY AND IN HIS CAPACITY AS AN OFFICER OF SCHERING-PLOUGH CORPORATION; JORGE P. FORTON, INDIVIDUALLY AND AS AN OFFICER OF SCHERINGPLOUGH CORPORATION; BURTON D. HUNTER, INDIVIDUALLY AND AS A SENIOR LEGAL DIRECTOR, INTERNATIONAL LAW OF SCHERINGPLOUGH CORPORATION; THOMAS C. LAUDA, INDIVIDUALLY AND IN HIS CAPACITY AS AN OFFICER OF SCHERING-PLOUGH CORPORATION; DALTON E. SMART, III, INDIVIDUALLY AND IN HIS CAPACITY AS AN OFFICER OF SCHERING-PLOUGH CORPORATION, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. MID-L-6868-03.

The opinion of the court was delivered by: Parker, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued January 24, 2007

Before Judges Wefing, Parker and Messano.

Plaintiffs Carlos Alberto Aguerre, Hugo Archimbal, Hector Hugo Caamaño and Maria Cristina Fernandez appeal from two orders, one entered on July 28, 2004 granting summary judgment dismissing their third amended complaint; and the other entered on December 10, 2004 denying their motion for reconsideration. We affirm the trial court's dismissal of the defamation claims but reverse the dismissal of all other claims and remand for further proceedings.

I.

The four plaintiffs were long-term employees of Laboratorios Essex S.A. (Essex), the Argentinean subsidiary of defendant Schering-Plough Corporation (Schering-Plough). Plaintiffs allege that they were abruptly terminated from Essex after disclosing "widespread unethical and illegal marketing and sales practices." The individual defendants, Alfred M. Blanco, Jorge P. Forton, Thomas C. Lauda and Dalton E. Smart, III, are officers of Schering-Plough and defendant Burton D. Hunter is the Senior Legal Director.

Plaintiffs alleged that Schering-Plough engaged in "the pervasive and routine bribing of doctors and public officials" in order "to maximize sales of its anti-infective and anti-cancer products" in Argentina. They allege further that defendants violated the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14, in terminating them because of their disclosures. Although all of the plaintiffs executed settlement agreements (agreements) with releases after their terminations in 2002 and 2003, they claim that they were coerced into entering the agreements because defendants threatened to have them blacklisted from other employment in the industry. Plaintiffs maintain that even though they signed the agreements, defendants defamed them to prospective employers, preventing them from obtaining new employment in the pharmaceutical industry.

Plaintiff Carlos Alberto Aguerre worked for Schering-Plough for twenty-five years until his termination on October 30, 2002. He was never subject to any disciplinary action or negative employment evaluations. Nevertheless, shortly after objecting to "illegal Schering-Plough marketing practices in a company meeting" he was terminated from his employment. Aguerre also objected to the alleged illegal practices through the ScheringPlough hotline at its headquarters in New Jersey.

In January 2003, defendants Forton and Smart traveled from New Jersey to Buenos Aires to meet with Aguerre about his allegations of illegal practices. Aguerre voluntarily provided Forton and Smart with documents demonstrating the illegal conduct. After he received promises of "immunity" and no reprisals, Aguerre advised Forton and Smart that Archimbal and Caamaño also had information about the illegal conduct.

On February 6, 2003, Aguerre was terminated with a conciliation agreement*fn1 in which he alleged that he received substantially less money than he was entitled to under Argentinean law. Aguerre was represented by counsel of his own choosing in the proceeding before a Labor Conciliator. On February 12, 2003, the agreement was confirmed by the Ministry of Labor, Employment and Social Security and reduced to judgment.

Plaintiff Hector Hugo Caamaño worked for Essex for twenty-six years. Prior to his termination, he supervised the Marketing, Sales and Medical Departments. He was never subject to any disciplinary measures or adverse employment reviews.

On February 6 and 7, 2003, Caamaño claims that Hunter interrogated him about the illegal practices and encouraged him to speak freely, after which Hunter castigated him, stating:

His next precise words were "A UD SE LO COGIERON!" (YOU HAVE BEEN FUCKED). He said "You were instructed to proceed in a manner so that these things did not become public and you obviously failed. Everything you have just told me, could be told to anybody. [Schering-Plough] cannot take the chance of being related to these kinds of practices.

You should have played by the book and kept your mouth shut. Had this not become public, and if you did not come forward to corroborate these accusations, you would probably still have a job in the company. Unfortunately, you are going to have to start looking for another job and I recommend that it be outside the pharmaceutical industry."

On February 20, 2003, "Caamaño was summoned to a conference room . . . where he encountered [Daniel Rutilio] Zuccherino, Schering-Plough's General Counsel in Argentina; outside counsel for Schering-Plough; Mr. Del Vigo, Schering-Plough's Human Resources Officer, and a court reporter." Caamaño was then informed that he was being terminated:

Mr. Del Vigo said because of my intentions to denounce the Company's corrupt practices, I was not considered loyal to the company. He said that Schering-Plough would not hesitate to do the same to any other employee who spoke out against corrupt company practices.

Mr. Del Vigo explained that my termination could take two directions. If I decided to sign the mutual termination agreement, which was shown to me that moment, I would receive a check for severance pay plus an additional 30% once the executed agreement was formally approved by the labor court.

If I refused to sign the agreement, Mr. Del Vigo promised that Schering[-]Plough would make sure that I would never again work for a pharmaceutical company for the rest of my life. He said there was no point for me to even try taking legal action against Schering-Plough because I would have to pay large legal fees and would probably lose anyway. I replied that I still wanted to consult an attorney to make sure that it was in my best interest to sign the agreement.

Mr. Zuccherino then said that this was the only offer I would get and I had to decide whether or not to accept their "generous offer" then and there. Mr. Del Vigo told me to think of my family, of the possibility of unemployment and the length of a trial that could extend over a period of 4 years. He then gave me a pen and told me to sign before it was too late.

I though [sic] I had no real choice so I signed the agreement. Mr. Del Vigo then told me that Mr. Jorge Rovillard, Esq. -- the person in the conference room I didn't know -- would represent me in the labor court. [Emphasis added.]

On March 24, 2003, Caamaño appeared before the National labor Court, represented by Rovillard, where the settlement agreement was memorialized in a judgment.

Hugo Archimbal worked for the Schering-Plough subsidiary for twenty-three years and was the Coordinator of Oncology Products before his termination. He was never subject to any disciplinary action or negative performance evaluations prior to his termination.

Archimbal's experience was similar to Caamaño's in that he first met with Hunter and was then called into a meeting at which Rovillard, the Schering-Plough attorney, was appointed to represent him. He was given a severance check with instructions to accept it in order to avoid delays. During the meeting, Archimbal was told that Schering-Plough had decided to terminate my labor contract. While telling me this upsetting news he thrust papers in front of my face -- which I later found out were my so-called termination agreement and severance check.

I was so shocked I could barely get out my question: "Why are you doing this to me?" Mr. Del Vigo replied that I was being terminated because I had interfered with Schering-Plough's business by denouncing the company's marketing practices as corrupt. [He also told me] that "there was no room for that kind of behavior in Schering-Plough," and that any employee who contradicted the company's marketing policies and practices, for any reason, was a disloyal troublemaker and would suffer the consequences. Mr. Del Vigo said that I was a troublemaker and Schering-Plough wanted to "make an example" of me and other troublemakers as a warning to other employees.

Mr. Del Vigo told me that I had a choice: I could sign a "mutual termination agreement," which he then handed to me, in which case I would receive the prepared severance check and a promised additional 15% after the agreement had been approved by the labor court. Mr. [D]el Vigo said that if I didn't sign the agreement, I would still be fired from my job and Schering-Plough would do everything in its power to avoid paying me any severance at all, ...


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