(Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL)
When a drug pricing battle between GlaxoSmithKline and Abbott Laboratories unexpectedly produced a landmark juror discrimination ruling in January at the U.S. Court of Appeals for the Ninth Circuit, the decision promised to help boost gay rights across the western United States. On Tuesday, just three weeks later, Nevada’s attorney general acknowledged that the court’s decision in SmithKline Beecham v. Abbott has killed any chance of preserving Nevada’s ban on same-sex marriage in a separate case before the Ninth Circuit.
The GSK case centers on claims that Abbott raised the price of an important HIV drug, Norvir, in order to boost sales of another Abbott drug. The Ninth Circuit ruled Jan. 21 that Abbott’s lawyers were worried about resentment at the price hike in the gay community and improperly struck a gay juror at trial because of his sexual orientation.
“Strikes exercised on the basis of sexual orientation continue this deplorable tradition of treating gays and lesbians as undeserving of participation in our nation’s most cherished rites and rituals,” Judge Stephen Reinhardt wrote for a unanimous three-judge panel. Reinhardt concluded that any classifications made on the basis of sexual orientation are entitled to heightened judicial scrutiny under the equal protection clause of the Fourteenth Amendment.
We named Lisa Blatt of Arnold & Porter and Brian Hennigan of Irell & Manella Litigators of the Week for the Ninth Circuit win, which allows GSK to seek hundreds of millions of dollars from Abbott at a new trial.
In Tuesday’s brief explaining Nevada’s decision to give up on its efforts to support the state’s gay marriage ban in a pending Ninth Circuit appeal, Nevada Attorney General Catherine Cortez Masto wrote that last month’s ruling gives her no choice.
“The decision in SmithKline is controlling,” Masto wrote, “and as a result, the state has determined that its arguments grounded upon equal protection and due process are no longer sustainable.” U.S. District Judge Robert Jones in Las Vegas had found that Nevada’s law only required rational basis review, and not the more rigorous heightened scrutiny, when siding with the state in the Nevada case in November.
Nevada’s Republican governor, Brian Sandoval, told The Associated Press that he agreed with the Democratic attorney general’s decision. “Based upon the advice of the attorney general’s office and their interpretation of relevant case law, it has become clear that this case is no longer defensible in court,” Sandoval said.