Smithkline Beecham Corporation v. Abbott Laboratorie

Filing 71

Submitted (ECF) Supplemental Brief for review. Submitted by Appellant Abbott Laboratories in 11-17357, Appellee Abbott Laboratories in 11-17373. Date of service: 08/14/2013. [8743154] [11-17357, 11-17373] (DBL)

Smithkline Beecham Corporation v. Abbott Laboratorie

Doc. 71

Nos. 11-17357, 11-17373

In the United States Court of Appeals
for the Ninth Circuit
SMITHKLINE BEECHAM CORP. D/B/A GLAXOSMITHKLINE,
PLAINTIFF/APPELLEE/CROSS-APPELLANT
v.
ABBOTT LABORATORIES,
DEFENDANT/APPELLANT/CROSS-APPELLEE
__________
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
CALIFORNIA, NO. 4:07-CV-5702 HON. CLAUDIA WILKEN, PRESIDING
_____________

ABBOTT LABORATORIES
SUPPLEMENTAL BRIEF REGARDING UNITED STATES V. WINDSOR

__________
JEFFREY I. WEINBERGER
STUART N. SENATOR
DANIEL B. LEVIN
KEITH R.D. HAMILTON
Munger, Tolles & Olson LLP
355 South Grand Avenue
Los Angeles, CA 90071
[phone]
KRISTA ENNS
Winston & Strawn LLP
101 California St., Suite 3900
San Francisco, CA 94111
[phone]

JAMES F. HURST
SAMUEL S. PARK
Winston & Strawn LLP
35 W. Wacker Drive
Chicago, IL 60601
[phone]
CHARLES B. KLEIN
STEFFEN N. JOHNSON
MATTHEW A. CAMPBELL
Winston & Strawn LLP
1700 K Street N.W.
Washington, D.C. 20006
[phone]

Counsel for Defendant-Appellant and Cross-Appellee Abbott
Laboratories

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Dockets.Justia.com

TABLE OF CONTENTS
Page
INTRODUCTION ..................................................................................................... 1
ARGUMENT ............................................................................................................. 3
A.

Windsor Did Not Hold That Classifications Based on Sexual
Orientation Are Subject to Heightened Scrutiny Under Equal
Protection............................................................................................... 3

B.

Windsor Is Not “Clearly Irreconcilable” with Existing Circuit
Precedent Applying Rational Basis Review Under the Equal
Protection Clause to Sexual Orientation Classifications....................... 7

C.

This Court Can and Should Affirm the Judgment Without
Reaching the Constitutional Question ................................................... 9

CONCLUSION ........................................................................................................ 13

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TABLE OF AUTHORITIES
Page
FEDERAL CASES
Allied Stores of Ohio, Inc. v. Bowers,
358 U.S. 522 (1959) .............................................................................................. 5
Aspen Skiing Co. v. Aspen Highlands Skiing Corp.,
472 U.S. 585 (1985) ............................................................................................ 11
Batson v. Kentucky,
476 U.S. 79 (1986) .......................................................................................passim
Brecht v. Abrahamson,
507 U.S. 619 (1993) .............................................................................................. 7
Evansville-Vanderburgh Airport Authority District v. Delta Airlines, Inc.,
405 U.S. 707 (1972) .............................................................................................. 5
High Tech Gays v. Defense Industrial Security Clearance Office,
895 F.2d 563 (9th Cir. 1990) ................................................................................ 2
J.E.B. v. Alabama ex rel. T.B.,
511 U.S. 127 (1994) .......................................................................................... 1, 7
John Doe I v. Abbott Laboratories,
571 F.3d 930 (9th Cir. 2009) .............................................................................. 11
Johnson v. Campbell,
92 F.3d 951 (9th Cir. 1996) ......................................................................8, 10, 11
Lair v. Bullock,
697 F.3d 1200 (9th Cir. 2012) .............................................................................. 9
Lawrence v. Texas,
539 U.S. 558 (2003) .............................................................................................. 6
Louisville Gas & Electric Co. v. Coleman,
277 U.S. 32 (1928) ............................................................................................ 4, 5
Miller v. Gammie,
335 F.3d 889 (9th Cir. 2003) (en banc) ............................................................ 2, 8
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TABLE OF AUTHORITIES
(Continued)
Page
Ohio Oil Co. v. Conway,
281 U.S. 146 (1930) .............................................................................................. 5
Perry v. Brown,
671 F.3d 1052 (9th Cir. 2012) ....................................................................5, 8, 10
Philips v. Perry,
106 F.3d 1420 (9th Cir. 1997) .......................................................................... 2, 7
Romer v. Evans,
517 U.S. 620 (1996) .....................................................................................passim
Superintendent, Massachusetts Correctional Institution v. Hill,
472 U.S. 445 (1985) ............................................................................................ 10
United States v. Delgado-Ramos,
635 F.3d 1237 (9th Cir. 2011) .............................................................................. 9
United States v. Orm Hieng,
679 F.3d 1131 (9th Cir. 2012) .............................................................................. 9
United States v. Osazuwa,
446 F. App’x 919 (9th Cir. 2011) ....................................................................... 10
United States v. Santiago-Martinez,
58 F.3d 422 (9th Cir. 1995) .................................................................................. 7
United States v. Windsor,
133 S. Ct. 2675 (2013) .................................................................................passim
Unitherm Food Systems, Inc. v. Swift Eckrich, Inc.,
546 U.S. 394 (2006) ............................................................................................ 12
Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLP,
540 U.S. 398 (2004) ............................................................................................ 11
Windsor v. United States,
699 F.3d 169 (2d Cir. 2012) ................................................................................. 5

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TABLE OF AUTHORITIES
(Continued)
Page
Witt v. Department of Air Force,
527 F.3d 806 (9th Cir. 2008) ....................................................................2, 7, 8, 9
STATE CASES
People v. Garcia,
77 Cal. App. 4th 1269 (2000) ............................................................................... 8
STATUTES AND RULES
Defense of Marriage Act (“DOMA”) ...............................................................passim

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INTRODUCTION
Abbott Laboratories submits this brief in response to the Court’s order for
supplemental briefing on the effect, if any, of United States v. Windsor, 133 S. Ct.
2675 (2013), on this appeal. As explained below, Windsor does not change the
analysis set forth in our Third Brief on Cross Appeal that GSK’s claim under
Batson v. Kentucky, 476 U.S. 79 (1986), fails.
The Supreme Court has held that peremptory challenges may be exercised
against jurors in “any group or class of individuals normally subject to ‘rational
basis’ review.” J.E.B. v. Ala. ex rel. T.B., 511 U.S. 127, 143 (1994). In striking
down § 3 of the Defense of Marriage Act (“DOMA”)—which had defined
“marriage,” for purposes of all federal law, as a union between a man and a
woman—the Windsor Court applied rational basis review. Following Romer v.
Evans, 517 U.S. 620 (1996), the Court held that “no legitimate purpose” overcame
DOMA’s “purpose and effect to disparage and to injure” those in same-sex
marriages approved by the State. Windsor, 133 S. Ct. at 2696.
Windsor does not overrule this Court’s prior precedent applying rational
basis review under equal protection to classifications based on sexual orientation.
This Court held in 1997 that “homosexuals do not constitute a suspect or quasisuspect class entitled to greater than rational basis scrutiny under the equal
protection component of the Due Process Clause of the Fifth Amendment.”

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Philips v. Perry, 106 F.3d 1420, 1425 (9th Cir. 1997) (quoting High Tech Gays v.
Def. Indus. Sec. Clearance Office, 895 F.2d 563, 574 (9th Cir. 1990)). The Court
continued to apply that rule in 2008 in Witt v. Department of Air Force, 527 F.3d
806, 821 (9th Cir. 2008), in affirming dismissal of an equal protection challenge to
the military’s Don’t Ask Don’t Tell policy. Panels of this Court are bound by prior
decisions unless those decisions are “clearly irreconcilable” with a subsequent en
banc or Supreme Court decision. Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.
2003) (en banc). Windsor is not clearly irreconcilable with Witt and Philips.
Thus, existing precedent would foreclose extending Batson to sexual
orientation. But the Court need not reach this issue. Federal courts have long had
a practice of deciding constitutional issues only when necessary, and it is
unnecessary to decide the scope of Batson here for two reasons. First, the totality
of the circumstances does not support an inference of intentional discrimination on
the basis of sexual orientation in the exercise of the peremptory challenge to Juror
B. Second, none of GSK’s claims should have reached the jury in the first place,
as neither federal law nor New York law imposes antitrust liability under the facts
of this case. It is therefore unnecessary for this Panel to decide whether the
Constitution precludes peremptory strikes based on sexual orientation.

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ARGUMENT
A.

Windsor Did Not Hold That Classifications Based on Sexual
Orientation Are Subject to Heightened Scrutiny Under Equal
Protection

Windsor involved the constitutionality of § 3 of DOMA, which defined
marriage for purposes of federal law as limited to unions between a man and a
woman. After concluding that it had jurisdiction, the Court held that § 3’s
exclusion of same-sex couples whose marriages were recognized by the States
violated the equal protection component of the Fifth Amendment. Windsor, 133 S.
Ct. at 2683. In so holding, the Court relied on rational basis review rather than
heightened scrutiny, concluding that DOMA served “no legitimate purpose.” Id. at
2695-96.
The Court began by detailing the “history and tradition” of State authority
over the definition and regulation of marriage and the history of federal deference
to this State authority. Id. at 2691-92. The Court then explained that DOMA had
“depart[ed] from this history and tradition of reliance on state law to define
marriage,” id. at 2692, and that DOMA’s “demonstrated purpose [was] to ensure
that if any State decides to recognize same-sex marriages, those unions will be
treated as second class marriages for purposes of federal law,” id. at 2693-94. In
particular, DOMA denied same-sex couples, whose marriages were lawfully

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recognized by their State, the numerous federal benefits and protections granted to
married couples. Id. at 2694-95.
In light of this history and purpose, the Court held that the “principal
purpose and the necessary effect” of DOMA was “to demean those persons who
are in a lawful same-sex marriage.” Id. at 2695. Based on this conclusion, the
Court held that “no legitimate purpose overcomes the purpose and effect to
disparage and to injure those whom the State, by its marriage laws, sought to
protect in personhood and dignity.” Id. at 2695-96. “By seeking to displace this
protection and treating those persons as living in marriages less respected than
others,” the Court held, “the federal statute is in violation of the Fifth
Amendment.” Id. at 2696. The Court expressly limited the scope of its holding,
stating: “This opinion and its holding are confined to those lawful marriages” that
DOMA treated unequally. Id.
The Court employed a rational basis analysis to invalidate DOMA and relied
upon prior decisions applying rational basis equal protection scrutiny. The Court
twice quoted the statement from Romer, that “[d]iscriminations of an unusual
character especially suggest careful consideration to determine whether they are
obnoxious to the constitutional provision.” Windsor, 133 S. Ct. at 2692, 2693
(quoting Romer, 517 U.S. at 633, quoting Louisville Gas & Elec. Co. v. Coleman,
277 U.S. 32, 37-38 (1928)). Romer itself, however, applied rational basis

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precedent to Colorado’s ban on any state or local prohibitions of discrimination
based on sexual orientation, invalidating the Colorado law because it was not
“directed to any identifiable legitimate purpose or discrete objective,” but rather
“classifie[d] homosexuals not to further a proper legislative end but to make them
unequal to everyone else.”1 517 U.S. at 635; see also Perry v. Brown, 671 F.3d
1052, 1082 (9th Cir. 2012) (explaining that, under Romer, “we must consider
whether any legitimate state interest constitutes a rational basis for Proposition 8;
otherwise, we must infer that it was enacted with only the constitutionally
illegitimate basis of animus toward the class it affects” (internal quotation marks
omitted)), vacated on other grounds by Hollingsworth v. Perry, 133 S. Ct. 2652
(2013).
The Windsor Court did not follow, or even expressly discuss, the approach
of the Second Circuit, which had held that “homosexuals compose a class that is
subject to heightened scrutiny” and that “the class is quasi-suspect.” Windsor v.
United States, 699 F.3d 169, 185 (2d Cir. 2012); cf. id. at 208-11 (Straub, J.,
1

The “careful consideration” language of Romer and Windsor comes from
Louisville Gas & Electric, 277 U.S. at 37-38, a 1928 Supreme Court decision in
which the Court invalidated, on equal protection grounds, a state tax imposed for
recording mortgages with maturities exceeding five years, but not for recording
mortgages with shorter maturities. Cf. id. at 41 (Holmes, J., dissenting) (arguing
tax law was supported by a rational basis). The Supreme Court has repeatedly
cited Louisville Gas & Electric as authority for the application of rational basis
review. See Evansville-Vanderburgh Airport Auth. Dist. v. Delta Airlines, Inc.,
405 U.S. 707, 719 n.13 (1972); Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522,
527 (1959); Ohio Oil Co. v. Conway, 281 U.S. 146, 160 (1930).

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dissenting) (maintaining rational-basis review applied). Nor did the Court accept
the urging of the United States or Windsor to apply heightened scrutiny to
classifications based on sexual orientation. See Brief for the United States on the
Merits Question at 18-36, United States v. Windsor, No. 12-307, 2013 WL 683048
(Feb. 22, 2013) (arguing heightened scrutiny applies); Brief on the Merits for
Respondent Edith Schlian Windsor at 17-32, United States v. Windsor, No. 12-307,
2013 WL 701228 (Feb. 26, 2013) (same).
In sum, when the Court in Windsor followed Romer and struck down
DOMA because “no legitimate purpose overcomes the purpose and effect [of
DOMA] to disparage and to injure those whom the State, by its marriage laws,
sought to protect,” it must be read as having done so under a rational basis test.
Windsor, 133 S. Ct. at 2696.2

2

Nothing in Windsor alters the level of scrutiny the Supreme Court applies to
sexual orientation as a matter of substantive due process. The question on which
the Supreme Court granted certiorari in Windsor was whether § 3 of DOMA
violated the equal protection component of the Fifth Amendment. See Petition for
a Writ of Certiorari Before Judgment, United States v.Windsor, No. 12-307, 2012
WL 3991414 (Sept. 11, 2012). Windsor cited Lawrence, a substantive due process
case, in explaining that the differentiation DOMA drew between same-sex and
opposite-sex unions “demeans the [same-sex] couple, whose moral and sexual
choices the Constitution protects.” Windsor, 133 S. Ct. at 2694 (citing Lawrence v.
Texas, 539 U.S. 558 (2003)). But Windsor does not otherwise discuss, and
certainly does not alter, Lawrence’s holding.

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B.

Windsor Is Not “Clearly Irreconcilable” with Existing Circuit
Precedent Applying Rational Basis Review Under the Equal
Protection Clause to Sexual Orientation Classifications

The Supreme Court has held that “[p]arties may . . . exercise their
peremptory challenges to remove from the venire any group or class of individuals
normally subject to ‘rational basis’ review” under the Equal Protection Clause.
J.E.B., 511 U.S. at 143; accord United States v. Santiago-Martinez, 58 F.3d 422,
422-23 (9th Cir. 1995) (no basis for Batson challenge based on classification not
subject to heightened scrutiny).
On two occasions, this Court has applied rational basis review in equal
protection challenges to classifications based on sexual orientation. Witt, 527 F.3d
at 821; Philips, 106 F.3d at 1420, 1425. In 2008, this Court affirmed the district
court’s dismissal of an equal protection challenge to the military’s “Don’t Ask
Don’t Tell” (DADT) policy. Witt, 527 F.3d at 821. In so doing, this Court
explained that its earlier decision in Philips v. Perry, 106 F.3d 1420, “clearly held
that DADT does not violate equal protection under rational basis review, and that
holding was not disturbed by Lawrence [v. Texas, 539 U.S. 558].” Witt, 527 F.3d
at 821. 3 Because circuit precedent applies rational basis review under the Equal

3

GSK has argued that Witt “merely assumed without deciding that [Philips v.
Perry] supplied the standard of review for sexual orientation-based
classifications,” and thus that this Panel is free to address the merits of the issue.
GSK Fourth Brief on Cross-Appeal at 7-8, GSK v. Abbott Labs., Nos. 11-17357,
11-17373 (9th Cir. July 27, 2012) (citing Brecht v. Abrahamson, 507 U.S. 619,
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Protection Clause to classifications based on sexual orientation, existing law
precludes application of Batson to sexual orientation.4
A three-judge panel is bound by prior precedent unless an intervening
decision by a higher court has directly overruled the precedent or “undercut the
theory or reasoning underlying the prior circuit precedent in such a way that the
cases are clearly irreconcilable.” Miller v. Gamie, 335 F.3d 889, 900 (9th Cir.
630-31 (1993)). GSK is incorrect. A court may assume the answer to a legal
question without deciding if the result would be the same regardless of how the
court were to resolve the legal question. E.g., Johnson v. Campbell, 92 F.3d
951 (9th Cir. 1996) (assuming without deciding that Batson applies to sexual
orientation but rejecting Batson claim for lack of proof of intentional
discrimination). A court may not assume an answer to a legal question without
deciding it when the resolution of a claim depends on the standard.
The resolution of the equal protection claim in Witt depended on the
standard of review. Major Witt challenged Don’t Ask Don’t tell on three separate
grounds: (1) procedural due process; (2) substantive due process; and (3) equal
protection. Witt, 527 F.3d at 809. This Court found a ripeness problem with the
procedural due process claim and remanded, id. at 812-13; and it remanded the
substantive due process claim after holding that Lawrence had raised the standard
of review for substantive due process claims, id. at 813-21. But the Court affirmed
the dismissal of the equal protection claim. Id. at 821. The Court could have
avoided deciding the standard of review if the military policy failed even under
rational basis review, cf. Perry v. Brown, 671 F.3d at 1076; but if the standard is
undecided, a statement that the policy survives rational basis review only begs the
question whether the policy would survive heightened scrutiny.
4

Windsor’s deference to the history and tradition of state regulation of marriage
does not support the extension of Batson to sexual orientation. Although a
California court has held that “exclusion of lesbian and gay men [from a jury] on
the basis of group bias violates the California Constitution,” People v. Garcia, 77
Cal. App. 4th 1269, 1275 (2000), the make-up of federal juries is governed by
federal law. And, unlike in Windsor, where DOMA thwarted New York’s decision
to treat all marriages equally, a decision about the reach of Batson will not impact
the California rule on the make-up of juries in state-court juries.

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2003) (en banc). This is a “high standard.” United States v. Delgado-Ramos, 635
F.3d 1237, 1239 (9th Cir. 2011). “It is not enough for there to be some tension
between the intervening higher authority and prior circuit precedent, or for the
intervening higher authority to cast doubt on the prior circuit precedent.” Lair v.
Bullock, 697 F.3d 1200, 1207 (9th Cir. 2012) (internal quotation marks and citation
omitted). Rather, “[t]he intervening higher precedent must be ‘clearly
inconsistent’ with the prior circuit precedent.” Id. (quoting United States v. Orm
Hieng, 679 F.3d 1131, 1141 (9th Cir. 2012)).
Windsor is not “clearly irreconcilable” with Witt’s equal protection holding.
Windsor does not reject rational basis review, does not indicate that sexual
orientation is a suspect classification, and does not state that classifications based
on sexual orientation must be subject to heighted scrutiny under equal protection.
Indeed, as discussed above, Windsor must be read to have applied rational basis
review. And because Romer predates Witt, Windsor’s citation to Romer certainly
cannot be interpreted to call Witt’s holding into question, let alone to be “clearly
irreconcilable” with Witt. Thus, should this Panel reach the issue of what level of
scrutiny applies, Witt remains binding.
C.

This Court Can and Should Affirm the Judgment Without
Reaching the Constitutional Question

It is well established that a federal court should avoid resolution of
constitutional questions when the case may be decided on a narrower ground.

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Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 453 (1985) (following “the
rule of judicial restraint requiring us to avoid unnecessary resolution of
constitutional issues”); see, e.g., Perry v. Brown, 671 F.3d at 1076 (resolving
constitutionality of California’s Proposition 8 on narrowest available ground and
declining to reach broader constitutional questions).
This Court has followed this principle in the Batson arena at least twice, by
assuming arguendo that Batson extends to juror strikes based on sexual
orientation, and then affirming on an alternative basis—in each case because there
was an insufficient showing that the peremptory challenge was discriminatory.
Johnson v. Campbell, 92 F.3d 951 (9th Cir. 1996) (no prima facie case of
discrimination); United States v. Osazuwa, 446 F. App’x 919 (9th Cir. 2011)
(unpublished) (no clear error in district court’s finding that strike was not
discriminatory). As Abbott explained in its Third Brief on Cross Appeal, there are
two alternative independent bases for affirmance here.
First, the totality of the circumstances does not raise any inference that the
strike of Juror B was motivated by discrimination on the basis of sexual
orientation. The record shows there were at least three clear neutral reasons for the
strike: (1) Juror B worked at this Court; (2) he was the only potential juror who
had heard of one of the drugs at issue in the case (Kaletra); and (3) he was the only
eligible juror whose testimony suggested he had lost friends to AIDS. See Abbott

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Third Brief on Cross-Appeal at 23-24, GSK v. Abbott Labs., Nos. 11-17357, 1117373 (9th Cir. July 19, 2012). This Court can and should affirm for lack of a
prima facie case without addressing the scope of Batson. See Campbell, 92 F.3d at
953 (assuming Batson applies to sexual orientation but affirming for lack of prima
facie showing of discrimination).
Second, none of GSK’s claims should have gone to the jury in the first
place. See Abbott Third Brief on Cross-Appeal at 32-45. In John Doe I v. Abbott
Labs., 571 F.3d 930, 935 (9th Cir. 2009), this Court rejected, as a matter of law,
the claim that Abbott’s repricing of Norvir without repricing its boosted drug,
Kaletra, violated the antitrust laws because there was no refusal to deal in the
booster drug (Norvir) and no below cost pricing of the boosted drug (Kaletra).
And there was no basis here to conclude Abbott had monopoly power—an
essential prerequisite to GSK’s theory that Abbott had a duty to deal. Abbott Third
Brief on Cross-Appeal at 39-43.5 GSK’s state-law claims likewise should never
have reached the jury because GSK’s implied contract claim and its UDTPA claim
failed as a matter of law. Id. at 44-45.
5

GSK’s refusal-to-deal theory relies almost exclusively on Aspen Skiing Co. v.
Aspen Highlands Skiing Corp., 472 U.S. 585 (1985), a decision “at or near the
outer boundary of § 2 liability,” Verizon Communications Inc. v. Law Offices of
Curtis V. Trinko, LLP, 540 U.S. 398, 409 (2004). The facts here, however, are not
comparable to Aspen Skiing, where Aspen refused to sell its lift tickets to a
competitor even at its retail price, demonstrating its intent to reduce competition.
Aspen Skiing, 472 U.S. at 593, 608.

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It is irrelevant whether, as GSK argues, Batson errors are exempt from
harmless error review. Abbott is not making a harmless error argument—i.e., that
another jury, differently constituted, more than likely would have reached the same
result; Abbott is arguing that GSK’s claims failed as a matter of law and thus
should not have gone to the jury in the first place. Likewise, GSK’s suggestion
that Abbott waived this argument by failing after the verdict to renew its Rule 50
motion for judgment with respect to the antitrust claims makes no sense. The
jury’s verdict was in Abbott’s favor on the antitrust claims. And even a party that
is on the losing end of a jury verdict waives only the right to challenge the
sufficiency of the evidence by failing to make a post-verdict motion for judgment.
Unitherm Food Sys., Inc. v. Swift Eckrich, Inc., 546 U.S. 394, 406 (2006).

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CONCLUSION
For the foregoing reasons and those set forth in Abbott’s Third Brief on
Appeal, this Court should reject GSK’s request for a new trial on the basis of the
alleged Batson violation.

August 14, 2013

Respectfully submitted,
/s/ Daniel B. Levin
DANIEL B. LEVIN

JEFFREY I. WEINBERGER
STUART N. SENATOR
DANIEL B. LEVIN
KEITH R.D. HAMILTON
Munger, Tolles & Olson LLP
355 South Grand Avenue
Los Angeles, CA 90071
[phone]

JAMES F. HURST
SAMUEL S. PARK
Winston & Strawn LLP
35 W. Wacker Drive
Chicago, IL 60601
[phone]
CHARLES B. KLEIN
STEFFEN N. JOHNSON
MATTHEW A. CAMPBELL
Winston & Strawn LLP
1700 K Street N.W.
Washington, D.C. 20006
[phone]

KRISTA ENNS
Winston & Strawn LLP
101 California St., Suite 3900
San Francisco, CA 94111
[phone]

Counsel for Defendant-Appellant/Cross-Appellee Abbott Laboratories

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CERTIFICATE OF COMPLIANCE
This brief does not exceed 15 pages and therefore complies with the page
limit set forth in this Court’s July 31, 2013, Order. The brief complies with the
typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements
of Fed. R. App. P. 32(a)(6). The brief has been prepared in a proportionally spaced
typeface using Times New Roman 14 point font.
/s/ Daniel B. Levin
DANIEL B. LEVIN
Counsel for Abbott Laboratories

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