SMITHKLINE BEECHAM CORPORATION, dba GlaxoSmithKline, Plaintiff-Appellee,
ABBOTT LABORATORIES, Defendant-Appellant. SmithKline Beecham Corporation, dba GlaxoSmithKline, Plaintiff-Appellant,
Abbott Laboratories, Defendant-Appellee.
Argued and Submitted Sept. 18, 2013.
[Copyrighted Material Omitted]
Daniel B. Levin (argued), Jeffrey I. Weinberger, Stuart N. Senator, Keith R.D. Hamilton, Kathryn A. Eidman, Munger, Tolles, & Olson LLP, Los Angeles, CA; Krista Enns, San Francisco, CA, Winston & Strawn LLP; James F. Hurst, Samuel S. Park, Chicago, IL, Winston & Strawn LLP; Charles B. Klein, Steffen N. Johnson, Matthew A. Campbell, Jacob R. Loshin, Winston & Strawn LLP, Washington, D.C., for Defendant-Appellant/Cross-Appellee.
Lisa S. Blatt (argued), Arnold & Porter LLP, Washington, D.C.; Brian J. Hennigan (argued), Alexander F. Wiles, Carlos R. Moreno, Trevor V. Stockinger, Lillie A. Werner, Christopher Beatty, Andrew Ow, Irell & Manella LLP, Los Angeles, CA; Sarah M. Harris, Arnold & Porter LLP, Washington, D.C., for Plaintiff-Appellee/Cross-Appellant.
Shelbi D. Day, Tara L. Borelli, Jon W. Davidson, Lambda Legal Defense and Education Fund, Inc., Los Angeles, CA, for Amicus Curiae.
Appeal from the United States District Court for the Northern District of California, Claudia Wilken, Chief District Judge, Presiding. D.C. No. 4:07-cv-05702-CW.
Before: SCHROEDER, REINHARDT, and BERZON, Circuit Judges.
REINHARDT, Circuit Judge:
The central question in this appeal arises out of a lawsuit brought by SmithKline Beecham (GSK) against Abbott Laboratories (Abbott) that contains antitrust, contract, and unfair trade practice (UTPA) claims. The dispute relates to a licensing agreement and the pricing of HIV medications, the latter being a subject of considerable controversy in the gay community. GSK's claims center on the contention that Abbott violated the implied covenant of good faith and fair dealing, the antitrust laws, and North Carolina's Unfair Trade Practices Act by first licensing to GSK the authority to market an Abbott HIV drug in conjunction with one of its own and then increasing the price of the Abbott drug fourfold, so as to drive business to Abbott's own, combination drug.
During jury selection, Abbott used its first peremptory strike against the only self-identified gay member of the venire. GSK challenged the strike under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), arguing that it was impermissibly made on the basis of sexual orientation. The district judge denied the challenge.
This appeal's central question is whether equal protection prohibits discrimination based on sexual orientation in jury selection. We must first decide whether classifications based on sexual orientation are subject to a standard higher than rational basis review. We hold that such classifications are subject to heightened scrutiny. We also hold that equal protection prohibits peremptory strikes based on sexual orientation and remand for a new trial.
During jury selection, the district judge began by asking questions of the potential jurors based on their questionnaires, and then each party's counsel had an opportunity to ask additional questions. When the judge turned her attention to Juror B, a male, she inquired first about his employment, as she had done with each of the previous members of the venire. Juror B stated that he worked as a computer technician for the Ninth Circuit Court of Appeals in San Francisco. During the course of the judge's colloquy with Juror B, the juror revealed that his " partner" studied economics and investments. When the district judge followed up with additional questions, the prospective juror referred to his partner three times by using the masculine pronoun, " he," and the judge subsequently referred to Juror B's partner as " he" in a follow-up question regarding his employment status. Responding to additional questions from the judge, Juror B stated that he took an Abbott or a GSK medication and that he had friends with HIV. When the time arrived for Abbott's counsel, Weinberger, to question Juror B, the questioning was brief and limited. Counsel's first question concerned Juror B's knowledge of the medications that were the focal point of the litigation: " You indicated that you know some people who have been diagnosed with HIV.... Do you know anything about the medications that any of them are on?" Juror B responded, " Not really." Abbott's counsel then continued: " Do you know whether any of them are taking any of the medications that we are going to be talking about here [,] ... Norvir or Kaletra or Lexiva,
any of those?" Juror B responded that he did not know whether his friends took those medications, but that he had heard of Kaletra. He added that he didn't know much about the drug and that he had no personal experiences with it. In sum, Abbott's counsel asked Juror B five questions, all regarding his knowledge of the drugs at issue in the litigation. Abbott's counsel did not ask Juror B when he had taken either an Abbott or GSK medication, how long ago, which medication it was, or the purpose of the medication. He also failed to ask any questions as to whether Juror B could decide the case fairly and impartially.
When the time came for peremptory challenges, Abbott exercised its first strike against Juror B. GSK's counsel, Saveri, immediately raised a Batson challenge, and the following discussion ensued:
Mr. Saveri: Okay. So, you know, the first challenge, your honor, is a peremptory challenge of someone who is— who I think is or appears to be, could be homosexual.
That's use of the peremptory challenge in a discriminatory way.
The problem here, of course, your honor, is the litigation involves AIDS medication. The incidents [sic] of AIDS in the homosexual community is well-known, particularly gay men.
So with that challenge, Abbott wants to exclude from— it looks like Abbott wants to exclude from the pool anybody who is gay. So I am concerned about that. I wanted to raise it.
The Court: Well, I don't know that, number one, whether Batson applies in civil, and number two, whether Batson ever applies to sexual orientation. Number three, how we would know— I mean, the evil of Batson is not that one person of a given group is excluded, but that everyone is. And there is no way for us to know who is gay and who isn't here, unless somebody happens to say something.
There would be no real way to analyze it. And number four, one turns to the other side and asks for the basis for their challenge other than the category that they are in, and if you have one, it might be the better part of valor to tell us what it is.
Mr. Weinberger: Well, he—
The Court: Or if you don't want to, you can stand on my first three reasons.
Mr. Weinberger: I will stand on the first three, at this point, your honor. I don't think any of the challenge applies. I have no idea whether he is gay or not.
Mr. Saveri: Your honor, in fact, he said on voir dire that he had a male partner. So—
Mr. Weinberger: This is my first challenge. It's not like we are sitting here after three challenges and you can make a case that we are excluding anybody.
The district judge then stated that she would allow Abbott's strike and would reconsider her ruling if Abbott struck other gay men.
At the conclusion of the four-week trial, the jury returned with a mixed verdict. It held for Abbott on the antitrust and UTPA claims, and for GSK on the contract claim. It awarded $3,486,240 in damages to GSK.
Abbott appealed the jury verdict on the contract claim, and GSK cross-appealed. On cross-appeal, GSK contends that a new trial is warranted on all counts, including the contract claim, because Abbott unconstitutionally used a peremptory strike to exclude a juror on the basis of his sexual ...