Byron Allen Vs. Comcast: Supreme Court Hears Arguments On When A Racial Discrimination Case Is “Plausible” Enough To Go Forward — Update

Ted Johnson
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UPDATED, 9:05 AM: Byron Allen’s racial discrimination case against Comcast came before the Supreme Court on Wednesday, as some of the justices questioned what a plaintiff has to show in a pleading to survive beyond its initial stages.

At issue is whether Allen’s $20 billion lawsuit should have survived beyond the pleading stage by merely proving that his race was a “motivating factor” in Comcast’s decision to deny carriage of his company’s channels, or whether it was the sole cause, something called “but for” in legalese.

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The Ninth Circuit ruled in favor of Allen last year, and some of the justices found fault with the lower court’s reasoning. There also was skepticism of issuing a definitive ruling that established a lower threshold when a case is first filed, and a higher one if it reaches a trial.

“Wouldn’t it be unusual for us to say that the test for the pleading stage is motivating factor, but the test at the trial or at summary judgment is ‘but-for’?” Justice Neil Gorsuch asked.

Justice Elena Kagan said that having two different standards would be “confusing.”

That said, the justices suggested ways to reach a decision that still gives Allen another chance to pursue his case. That would be a decision that directs the Ninth Circuit to consider Allen’s case under different reasoning.

Erwin Chemerinsky, who was arguing for Allen, acknowledged that Allen eventually would have to show that race was the sole cause for Comcast’s rejection. But he argued that it would be an “insurmountable burden” to meet if plaintiffs have to prove that at the outset of the case, as they would not have the benefit of conducting depositions and discovery.

“It’s not realistic to say to the plaintiff that you have to allege that this was the but-for cause and deny all other causes at that stage,” he said.

Chief Justice John Roberts pressed Chemerinsky whether the court had to consider whether a claim is plausible — citing a hypothetical in which race is suggested in a law firm’s job rejection letter, but the applicant also did not meet the requirement that they went to law school. Toward the end of the oral arguments, Justice Samuel Alito cited Allen’s initial claim, saying it the complaint “goes on and on and on with a lot of facts, including an allegation that Comcast entered into a racist conspiracy with the NAACP, the National Union League, Al Sharpton and the National Action Network.”

He asked Chemerinsky whether he thought it had any impact on the district court’s initial decision to dismiss the case.

Chemerinsky said that it should not have, as the complaint was amended.

“Mr. Allen was told over many years things to do and he’d get carriage,” he said. “He did those and didn’t get carriage; that he was told that there was no bandwidth, but they then carried 80 white-owned channels, that all of the channels that are carried by the other cable companies are carried by Comcast, except for Mr. Allen’s channels.”

But Comcast’s counsel, Miguel Estrada, seized on Alito’s remarks to outline other allegations that Allen has made in his amended complaint, including that Magic Johnson and P Diddy Combs, “signed up with Comcast” to distribute their own channels “to give us cover for our racial discrimination.”

He said that if Allen’s claims of a “racist plot” satisfies past precedent for what is plausible, then “the civil justice system has real problems.”

In their ruling, the Ninth Circuit focused on Allen’s other claims. He said that Comcast told him they didn’t have the bandwith to carry his channels, but they accepted carriage of other channels with white owners.

In an interview after the hearing, Allen said that he was pleased and predicted that his takeaway was that the justices would allow the case to go forward.

“It went exactly the way I expected it to go,” Allen said.

He said that Estrada was “taking things out of context” he brought up his additional allegations and added, “if their case is so strong, why are they fighting so strongly not to have evidence brought forward?”

Comcast issued a statement in which it said that “we are optimistic the court will reverse the incorrect Ninth Circuit decision and, in light of the trial court’s dismissal three separate times of these discrimination claim, bring this case to an end.

“Comcast has a strong civil rights and diversity record and an outstanding history of supporting and fostering diverse programming from American-American owned channels.”

The case hinges on a section of the Civil Rights Act of 1866 that holds that African Americans must have the same right to contracts as whites.

Justice Sonia Sotomayor pressed an attorney for the Trump administration on why they believe that the law establishes a “but for” standard.

“I am looking at the statute, and I don’t see any of the ‘but for’ language, ‘because of’ or any of the other that we have interpreted in any other statute. ” she said.

She suggested that “as long as you have enough in the case to suggest racial animus” and that it might be proved to be the “but for standard,” “that’s enough.”

“What I see is a statute that says all citizens must have the same right,” she said. “And if you — talking about in the making, performance, execution of the contract. And we’ve also said the civil rights law was designed to eliminate all race discrimination. I’m not sure how we can square those two things with a ‘but-for'” standard.

“How can it be that if you’re treated differently because of your race in the formation of the contract, but you’re denied the contract for another reason?” she asked.

Justice Stephen Breyer at one point suggested that the argument was in a way “academic.”

“Suppose the opinion said, ‘Look, it’s the defendant who knows what’s in his mind.’How can you expect a plaintiff normally to know everything in the defendant’s mind? How could you?’ And so all [the plaintiff] has to do is allege, on information and belief, that he thinks that this racial part of it was motivating. And call that ‘motivating’ or call it ‘but-for.’

To some laughter, Chemerinsky said he could accept such an outcome. But he also said that he wanted “the law to be clear that motivating factor is sufficient.”

Justice Ruth Bader Ginsberg was not present at the oral arguments, as she was recovering from an illness, Roberts announced at the start. She will participate in the deliberation of the case.

Outside the courthouse, a group of demonstrators held signs that read, “Stop Comcast, Keep Starz,” a reference to a simmering carriage dispute.

A ruling is expected by next spring.

PREVIOUSLY, 6 AM PT: Byron Allen’s racial discrimination case against Comcast comes before Supreme Court today — and that very fact has elevated his industry-centric litigation into one with legal and political implications.

The justices will be considering what the legal threshold is for a plaintiff to bring a racial discrimination complaint. Allen sued Comcast and other multichannel distributors four years ago over their refusal to carry his set of lifestyle and entertainment channels.

The case also has put the issue of media representation in the political spotlight, as Comcast has been forced to defend its diversity record in the face of criticism from the NAACP and a lawmaker on Capitol Hill, Rep. Bobby Rush (D-IL).

On Tuesday evening, Sen. Cory Booker (D-NJ) and Sen. Kamala Harris (D-CA) joined NAACP officials for a “tele-town hall” to discuss the case.

“If successful, Comcast’s arguments would, in many cases, impose an impossible pleading burden on victims of discrimination and prevent them from vindicating meritorious claims,” attorneys for the NAACP Legal Defense & Education Fund argued in a friend-of-the-court brief in September.

On the other side, the U.S. Chamber of Commerce claims that a decision in favor of Allen would result in a flurry of “burdensome litigation and undeserved reputational harms” on companies, and would likely “prevent businesses from evenhandedly and fairly applying workplace standards in circumstances when doing so would be good for companies, coworkers and consumers alike.”

The justices will be focusing on a portion of the Civil Rights Act of 1866 that prohibits racial discrimination in contracts. Section 1981 gives all individuals the same rights in contracts as those “enjoyed by white citizens.”

Comcast argues that history and precedent support its argument that plaintiffs would have to meet a “but for” standard in bringing a valid discrimination claim. In other words, Allen would have to show that were it not for race, Comcast would have agreed to carry his channels.

By contrast, Allen’s legal team contends that the 1866 law sets no such “but for” threshold, and he instead has to show that race was a motivating factor in Comcast’s decision. In other words, Comcast can’t get out of the case merely by claiming that it had business reasons for rejecting the channel.

That this case made its way to the Supreme Court at all would have been a surprise just four years ago, when Allen sued Comcast along with other major multichannel TV providers.

At that time, it was treated by Comcast as a frivolous nuisance lawsuit, and while it got media coverage. After all, Allen, through his National Association of African American Owned Media, was suing for a whopping $20 billion. He was seeking carriage of channels like JusticeCentral.TV, Pets.TV and Recipe.TV.

The district court dismissed the case three times, but on appeal to the Ninth Circuit, Comcast and a defendant in another of Allen’s lawsuits, Charter Communications, were in for a surprise. The judges reversed, concluding that Allen “needed only to plausibly allege that discriminatory intent was a factor in Comcast’s refusal to contract, and not necessarily the but-for cause of that decision.”

They wrote that Allen raised “sufficient allegations from which we can plausibly infer that Entertainment Studios experienced disparate treatment due to race and was thus denied the same right to contract as a white-owned company.”

Among other things, they cited Allen’s allegations that Comcast offered carriage to “lesser-known, white-owned” networks, such as Fit TV and the Outdoor Channel, “at the same time it informed Entertainment Studios that it had no bandwidth or carriage capacity.”

Comcast successfully petition the high court to take the case, arguing that the Ninth Circuit decision conflicted with opinions of other appellate courts.

That circuit split often is an incentive for the justices to jump at the chance to hear a case, but it also may be a warning sign for Allen’s legal team. Legal observers say that the conservative majority may have wanted to step in to reverse the more liberal Ninth Circuit, as they have been apt to do.

Ayesha Hardaway, assistant professor at Case Western Reserve University School of Law, cited the composition of the court and the fact that the Trump administration is siding with Comcast. Solicitor General Noel Francisco is being allotted part of Comcast’s time during oral arguments to make their case.

“If I am a litigator for Byron Allen, I am very concerned,” Hardaway said.

A decision in favor of Comcast, she said, may have an impact on the ability of plaintiffs to get a racial discrimination case off the ground, as such claims would be tossed before discovery and depositions.

“If we don’t make sure that plaintiffs have the right to initiate litigation, we are closing the doors to the courthouse,” Hardaway said.

In that regard, Comcast has taken some heat for sticking with the case rather than reaching a deal with Allen, which is what AT&T did in 2015, as it was in the midst regulatory approval of its purchase of DirecTV.

The NAACP was once a co-defendant in the case, as Allen claimed that they had taken “sham” funding from Comcast to support diversity initiatives. Now it wishes that Comcast would end its litigation, arguing that the case could “roll back the crucial protections of one of the nation’s oldest civil rights laws.”

Comcast doesn’t see it that way. Rather, it sees this as a carriage dispute masked as a discrimination case, and continues to call Allen’s claims “frivolous.” In a recent brief, the company denied that it “has engaged in any racial discrimination at any time,” and said that it has increased the carriage of minority-owned networks.

“These allegations are implausible on their own terms, and become even more implausible when considered alongside other allegations in the operative complaint reciting the legitimate, race-neutral explanations Comcast gave for its decision, including a lack of consumer demand, as well as the complaint’s concessions that Comcast has carried—and continues to carry—other African American–owned channels, including 100% African American–owned networks,” the company said. Rather than water down a key civil rights law, the company says that a decision in their favor will merely be keeping the way that it has been interpreted in the courts.

Allen’s business has changed since he first filed his lawsuit. He bought The Weather Channel and, with Sinclair Broadcasting, 21 of regional Fox sports networks, making him much more of a media player, perhaps even more so if he wins. But the case won’t be over. It would then go back to the lower court for a set of new hurdles before it ever makes it to trial.

“I feel like with the merits of the case, we absolutely could win,” Allen told Deadline on Tuesday.

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