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SmithKline Beecham Corp. v. Abbott Labs. - 740 F.3d 471 (9th Cir. 2014)


To establish a prima facie case under the Batson analysis, the challenging party must produce evidence that: (1) the prospective juror is a member of a cognizable group; (2) counsel used a peremptory strike against the individual; and (3) the totality of the circumstances raises an inference that the strike was motivated by the characteristic in question. A defendant satisfies the requirements of Batson's first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred. The burden on the challenging party at the prima facie stage is not an onerous one. It is a burden of production, not a burden of persuasion.


Plaintiff SmithKline Beecham Corporation, d/b/a GlaxoSmithKline ("GSK") filed a lawsuit against defendant Abbott Laboratories ('Abbott") in federal district court, alleging antitrust, contract, and unfair trade practice ("UTPA") claims. The dispute related to a licensing agreement and the pricing of HIV medications. GSK's claims centered 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, arguing that it was impermissibly made on the basis of sexual orientation. The district judge denied the challenge. 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 contended that a new trial was warranted on all counts, including the contract claim, because Abbott unconstitutionally used a peremptory strike to exclude a juror based on his sexual orientation.


Did the exclusion of the juror based upon his sexual orientation violate Batson? 




The court of appeals reversed the district court's judgment and remanded the case for a new trial. The court held that classifications based on sexual orientation were subject to a standard higher than rational basis review and that such classifications were subject to heightened scrutiny. The court further ruled that equal protection prohibited peremptory strikes based on sexual orientation. The court reasoned that the history of exclusion of gays and lesbians from democratic institutions and the pervasiveness of stereotypes about the group led to the conclusion that the Batson analysis applied to peremptory strikes based on sexual orientation. Moreover, the Court held that the exclusion of a juror in violation of Batson was not harmless in the case at bar, as a jury was necessary to resolve the case.

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