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Media Alerts - SmithKline Beecham Corp. v. Abbott Laboratories
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February 20, 2014
  SmithKline Beecham Corp. v. Abbott Laboratories
Headline: Ninth Circuit holds that classifications based on sexual orientation must be reviewed under heightened scrutiny for purposes of equal protection analysis, and equal protection prohibits preemptory strikes based on sexual orientation in jury selection.

Area of Law: Constitutional Law; Equal Protection

Issues Presented: (1) Whether equal protection prohibits discrimination based on sexual orientation in jury selection. (2) Whether classifications based on sexual orientation are subject to a standard higher than rational basis review.

Brief Summary: Abbott appealed a jury verdict on a contract claim and SmithKline cross-appealed, contending that a new trial was warranted because Abbott violated equal protection by using a preemptory strike in excluding a juror because of his sexual orientation.

The Ninth Circuit began by performing the threshold three-prong analysis under Batson v. Kentucky to determine whether there was discrimination. After finding discrimination, the Ninth Circuit determined what level of scrutiny was required in a question of equal protection when sexual orientation is at issue.

Under Witt v. Department of Air Force analysis, the Ninth Circuit determined the Supreme Court applied heightened scrutiny, rather than mere rational basis review under the Court's equal protection analysis in US v. Windsor. Consequently, because equal protection analysis of classification based on sexual orientation required heightened scrutiny, and because of the history of exclusion and discrimination against gays and lesbians, the Ninth Circuit determined that a Batson violation occurs when there is a preemptory strike of a juror based on sexual orientation.

The Ninth Circuit reversed, and remanded for a new trial, holding that the Batson violation tainted jury findings.

Extended Summary: In a suit arising containing antitrust, contract, and unfair trade practice claims, relating to a licensing agreement and pricing of HIV medication, defendant Abbott used its first preemptory strike against the only self-identified gay member of the venire. Plaintiff SmithKlinechallenged the strike under Batson v. Kentucky, arguing that it was impermissibly made on the basis of sexual orientation. The district judge stated his reasons for rejecting the Batson challenge and allowing the strike, and provided Abbott with the opportunity to rely on the Court's reasoning or explain exactly why Abbott struck the juror, Abbott merely relied on the Court's reasoning.

There is a three-part test under Batson: (1) the party challenging the preemptory strike must establish a prima facie case of intentional discrimination, (2) the striking party must give a nondiscriminatory reason for the strike, and (3) the court must determine on the basis of the record, whether the party raising the challenge has shown purposeful discrimination.

To establish a prima facie case of discrimination the challenging party must produce evidence that (1) the prospective juror is a member of a cognizable group, (2) counsel used a preemptory strike against the individual, and (3) the totality of the circumstances raises an inference that the strike was motived by the characteristic in question. The Ninth Circuit panel's opinion found that SmithKline established a prima facie case of intentional discrimination because the juror was the only juror who identified himself as gay, and there was reason to believe Abbott struck the juror for fear of his being influenced by Abbott's increasing the price of HIV medication.

The Ninth Circuit panel determined that Abbott's contention that it did not know the juror was gay was inconsistent with the record (i.e. the juror referred to his male partner on several occasions). Further, Abbott's questions to the juror failed to address the juror's ability to be impartial, and voire dire revealed that Abbott's strike was based on a discriminatory assumption that the juror could not impartially evaluate the case because he was gay.

Despite Abbott's attempts to provide neutral reasons, the Court stated that only the reason provided at the time of strike was important, and Abbott did not offer a nondiscriminatory reason at the time of the strike.

The Ninth Circuit then turned to the question of whether Batson prohibits strikes based on sexual orientation, noting that the Supreme Court allows for preemptory challenges to remove a class of individuals subject to rational basis review. Thus, the Ninth Circuit was required to determine what level of scrutiny applies to sexual orientation under equal protection.

In Witt v. Department of the Air Force, the Ninth Circuit determined that heightened scrutiny applied to sexual orientation under substantive due process based on Lawrence v. Texas, even though Lawrence did not expressly state that heightened scrutiny applied in such cases. Under Witt, when the Supreme Court has not identified the level of scrutiny used, the Ninth Circuit looks at what the Supreme Court actually did.

The Witt test for determining that a higher level of scrutiny applies includes a consideration of (1) a failure to consider "some conceivable rational" government purpose, and instead focusing on the actual government purpose, (2) the requirement of a "legitimate state interest" to "justify" the harm inflicted by the government's action, and (3) the level of scrutiny used by cases relied upon.

The Ninth Circuit looked to the Supreme Court's decision in US v. Windsor to determine what level of scrutiny applied to classification with respect to sexual orientation under equal protection, and applied the Witt test.

First, Windsor considered Congress's actual purposes with respect to DOMA, instead of conceiving of hypothetical justifications for the law.

Second, the Windsor Court required Congress to "justify disparate treatment of the group," a standard that is contrary to the application of rational basis review, because rational basis is not "ordinarily" concerned with the resulting inequality. Further, rational basis review provides the legislature with the power to balance advantages and disadvantages of a law, and in Windsor, the Court, instead of the legislature, balanced the government interest against the harm or injury to gays and lesbians. Even in the absence of express language, the framework of Windsor analysis does not suggest the Court's use of rational basis review.

Third, in what the Ninth Circuit called the "least important factor," Windsor cited to one case applying rational basis, and two cases applying a heightened scrutiny.

The Ninth Circuit stated that Windsor "requires that when state action discriminates on the basis of sexual orientation, we must examine its actual purposes and carefully consider the resulting inequity to ensure that our most fundamental institutions neither send nor reinforce messages of stigma or second-class status."

Next, the Ninth Circuit considered whether there was a Batson violation. While Batson concerned racial classification, the Ninth Circuit noted that J.E.B. v. Alabama, in applying Batson to gender classification, focused on was the actual experience of the group in question - women. The Ninth Circuit, focusing on the actual experience of gays and lesbians, discussed the ways in which individuals were discriminated against and excluded because of their sexual orientation. Because of this history, and a wariness of allowing preemptory strikes based on sexual orientation, which could send the message that gays and lesbians could not be trusted to fairly decide legal issues on a jury, the Ninth Circuit held that Batson applied. Thus, equal protection forbids striking a juror on the basis of sexual orientation.

Finally, Abbott unsuccessfully argued that the Batson violation was harmless because none of SmithKline's should have been submitted to the jury the the basis of insufficient evidence. However, the Ninth Circuit stated that there is no harmless error analysis where a Batson claim is involved; the harm of a Batson violation "is far greater than simply the effect on the verdict." The Ninth Circuit opinion then pointed to jury findings in the case that had been tainted by the Batson violation and, consequently remanded the case for a new trial.

Panel: Judges Berzon, Reinhardt, Schroeder

Date of Issued Opinion: January 21, 2014

Docket Number: 4:07-cv-05702-CW

Decided: Reversed.

Case Alert Author: Joseph Chaparo

Author of Opinion: Judge Reinhardt

Case Alert Circuit Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 02/20/2014 05:58 PM     9th Circuit  

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