Litigators of the Week: Lisa Blatt of Arnold & Porter and Brian Hennigan of Irell & Manella

, The Litigation Daily

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Brian Hennigan and Lisa Blatt
Brian Hennigan and Lisa Blatt

With help from Lisa Blatt of Arnold & Porter and Brian Hennigan of Irell & Manella, a licensing spat between two drug companies produced a landmark ruling this week that litigants can't disqualify jurors on the basis of their sexual orientation. The rationale behind the court's decision is expected to bolster gay rights within the western United States, if not the entire country.

In a ruling issued on Tuesday, the U.S. Court of Appeals for the Ninth Circuit vacated a $3.4 million jury verdict in a pricing dispute between GlaxoSmithKline plc and Abbott Laboratories over an HIV drug. Siding with Hennigan and Blatt, who represent GSK, the court concluded that Abbott's lawyers improperly struck a self-identified gay juror because they feared he would resent the company for raising HIV drug prices.

Juror strikes based on sexual orientation continue a "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 the unanimous Ninth Circuit panel.

Reinhardt didn't stop there. The court also ruled that all classifications based on sexual orientation are subject to heightened judicial scrutiny. The court based its finding on United States v. Windsor, last year's U.S. Supreme Court decision striking down a core provision of the Defense of Marriage Act. Although the high court in Windsor didn't explicitly say it was applying heightened scrutiny to DOMA, the Ninth Circuit nevertheless found that a less stringent standard of review no longer cuts it when it comes to laws dealing with sexual orientation. "There can no longer be any question that gays and lesbians are no longer a 'group or class of individuals normally subject to "rational basis" review,'" the Ninth Circuit ruled.

"The decision really speaks for itself," Blatt said. "Sexual orientation has nothing to do with juror service."

GSK sued Abbott in 2007, alleging that it violated antitrust laws and breached a contract by raising the price of its HIV drug Norvir. The case went to trial in 2011, and a jury ended up awarding GSK just $3.4 million, a tiny fraction of the $571 million the company was seeking. Hennigan led GSK's trial team, which also included colleagues Alex Wiles and Andrew Ow. The case had been consolidated with a consumer class action that settled during the trial. Class action plaintiffs lawyer Joseph Saveri, formerly of Lieff Cabraser Heimann & Bernstein, lodged the initial challenge to Abbott's preemptory strike.

On appeal, GSK's lawyers made the standard arguments that the verdict wasn't supported by the evidence. But they also focused on the trial judge's decision to let Abbott strike a juror who repeatedly referenced his same-sex partner during voir dire. Abbott's pricing of HIV drugs has drawn backlash among some gay men, and it appeared that Abbott feared the juror would be biased because of his sexual orientation. Abbott lawyer Jeffrey Weinberger of Munger, Tolles & Olson claimed otherwise at the time, telling the judge, "I have no idea if he's gay or not." (The Ninth Circuit called that remark "far from credible" in Tuesday's decision.)

Two months before the the Ninth Circuit heard the appeal, GSK also brought on Lisa Blatt, who heads Arnold & Porter's appellate practice. Blatt and Hennigan decided to split the oral argument. Hennigan made the case that the jury got it wrong, while Blatt handled the constitutional issues raised by the juror exclusion. The Ninth Circuit panel seemed most interested in the equal protection argument, so Blatt ended up doing most of the talking.

GSK now gets a new trial and a shot at a much bigger verdict, though all the public wanted to talk about this week was the decision's larger import.

Hennigan said he's pleased that the case took an unexpected detour into social justice issues. As a white-collar defense lawyer by trade, that's not his typical domain, he said.

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