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One Standard for the Duration of a Case

November 20, 2019
Grady Crosby III

Byron Allen, CEO of Entertainment Studios Networks (“ESN”) filed a lawsuit against Comcast claiming billions in damages. In the lawsuit, Allen alleged that Comcast’s refusal to carry Allen’s ESN channels violated Section 1981 of the Civil Rights Act of 1866 which bars racial discrimination against non-white individuals when making and enforcing contracts. The question at issue involves how much discrimination a plaintiff has to allege in his complaint to get his day in court. After a 4 year long legal battle, the U.S. Supreme Court is set to weigh in on the issue.

Allen and ESN have maintained that, at the pleading stage, the complaint only needs to include credible allegations that race played a role in the decision to not carry ESN channels by Comcast. Allen supporters believe that the U.S. Supreme Court’s ruling could potentially change the landscape of how race discrimination cases are handled. Comcast attorneys have argued that Section 1981 requires a party to plead a “but for” causation, essentially meaning that race must be the only reason behind the corporation’s decision not to carry ESN channels. Comcast’s argument carried the day in the lower federal district courts but ran into a wall when the Ninth Circuit Court of Appeals ruled in Allen’s favor holding that Allen only needed to prove that race was at least one “motivating factor” in Comcast’s decision, not the “but for” cause.

Comcast appealed the Ninth Circuit’s decision to the U.S. Supreme Court. Many speculate that the Court accepted Comcast’s appeal because the business community has identified Allen’s dispute with Comcast as a perfect example of tort nuisance litigation. The U.S. Chamber of Commerce championed Comcast’s position in the supporting brief it filed. The U.S. Chamber of Commerce argued that making a business prove a negative, at the inception of a lawsuit, that discrimination didn’t play any part in the decision under attack, would result in unwarranted litigation, unnecessary expense and unfair reputational harm to companies across the country.

On November 13, 2019, the U.S. Supreme Court held oral argument in this case which is being touted as the most important civil rights case in recent history. Civil rights groups have been vocal in raising concerns that the U.S. Supreme Court could use the case to limit the reach of anti-discrimination laws, effectively closing the courthouse doors to plaintiffs claiming race discrimination. Comcast strenuously disagrees arguing that the Allen case involves a very narrow issue…a technical point of law…that will not change the protections afforded under the civil rights laws. Based on questions from several of the U. S. Supreme Court Justices there is a clear indication that the Supreme Court is likely to rule in Comcast’s favor refusing to allow one standard at the complaint stage of litigation and another for winning.

This article is a publication of MWH Law Group LLP and is intended to provide general information regarding legal issues and developments to our clients and other friends. It should not be construed as legal advice or a legal opinion on any specific facts or situations. For further information on your own situation, we encourage you to contact the author of the article or any other member of the firm.

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