By Falen O. Cox, Esq., Founding Partner, Cox, Rodman, and Middleton
The case, Comcast Corp. v. National Association of African American Owned Media and Entertainment Studios Networks, is, on the surface, a case about procedural issues. Beneath the surface it is about the ease or complexity a plaintiff may face when raising claims of racial discrimination under 42 US 1981.
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Even though it has reached the United States Supreme Court,
procedurally, the lawsuit is in the beginning stages, and the Supreme
Court will be deciding whether the plaintiffs (Byron Allen company) may
move forward in the legal process to have its “day in court” before a
jury, or whether its suit should be dismissed before it reaches a jury
or the investigatory process that we lawyers call “discovery.”
During the discovery process each side has an opportunity to ask
questions of the other and compel answers, to request documents, and to
question potential witnesses. This process is “investigative” and allows
the plaintiff to gather the information necessary to present his or her
case to a jury, and the defendant the ability to form any defenses he
or she may have.
For example, if a plaintiff sues a defendant for rear-ending her at a
red light, during the discovery process the plaintiff can ask the
defendant whether he was texting at the time of the accident — if he
was, the plaintiff can use that to show that the defendant was
negligent.
On the other hand, if the plaintiff claims that she has back pain as a
result of the collision, the defendant can ask if she has ever had back
problems before. If she had been seeing a doctor about back pain prior
to the collision, the defendant may be able to show that her back pain
was not a result of the collision. However, if the court dismisses a
case before the discovery process begins, the case is over, and these
“discoveries” are never made.
In short, whether a case makes it to the discovery process, depends
on whether the case is allowed to move forward after the plaintiff files
a complaint. As common practice, defendants usually file a motion for
summary judgement, asking the court to dismiss the plaintiff’s complaint
prior to discovery and prior to any decision on the merits of the
plaintiff’s claim along with its answer to the plaintiff’s complaint. It
is a procedural tactic to prevent the lawsuit from moving further than
the written complaint.
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There are valid reasons for motions for summary judgement
(dismissal). It is designed to make sure that frivolous claims do not
overwhelm the court system and to ensure that the court’s limited
resources and time are spent on legitimate claims. Additionally,
defending a lawsuit can be time consuming and extremely costly for a
defendant. A defendant should not have to spend thousands (or in this
case probably hundreds of thousands) on legal fees and lost productivity
to defend a frivolous claim. The motion for summary judgement acts as a
gatekeeper to the legal system.
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In this case, the National Association of African-American Owned
Media and Entertainment Studios Networks, Inc. (the “Plaintiffs”) filed
suit against Comcast, Time-Warner Cable, the former FCC Commissioner,
the NAACP, the National Urban League, the National Action Network, and
Reverend Al Sharpton alleging that Comcast and the others conspired
together to deny it a contract to carry its network/television shows
because it is a 100% black-owned company. (Editor’s note: NAN, NUL, and
NAACP each are no longer party to the lawsuit).
However, the Court dismissed the suits against everyone except
Comcast and Time-Warner for lack of personal jurisdiction, and the
plaintiffs abandoned its argument of conspiracy.
At issue now, and before the United States Supreme Court, is whether
Comcast, in refusing to contract with the Plaintiff, is in violation of
42 USC 1981. More specifically, whether a plaintiff who alleges
discrimination in violation of 42 USC 1981 must allege that racial
discrimination was the but for cause of the refusal to
contract: “But for the plaintiff’s race, Comcast would have contracted
with the plaintiff,” or whether the plaintiff may allege that race was a
motivating factor in Comcast’s refusal to contract.
Even though there may have been other reasons that Comcast did not
contract with Plaintiffs, the fact that it is a black company was a
motivating factor. For context, 42 USC 1981 was enacted in 1886 during
Reconstruction (after slavery) and reads:
“All persons within the jurisdiction of the United States shall
have the same right in every State and Territory to make and enforce
contracts, to sue, be parties, give evidence, and to the full and equal
benefit of all laws and proceedings for the security of persons and
property as is enjoyed by white citizens, and shall be subject to like
punishment, pains, penalties, taxes, licenses, and exactions of every
kind, and to no other.”
The District Court, which acts as a trial court in the federal court
system, dismissed the Plaintiff’s complaint three times for failure to
state a claim for which relief can be granted. It held that the
Plaintiff’s complaint failed to show that, but for racial
discrimination, Comcast would have contracted with Plaintiff, and that
Plaintiff failed to allege that other companies that Comcast did in fact
contract with were similarly situated to Plaintiff.
However, Plaintiff appealed the District Court’s decision to the 9th
Circuit Court of Appeals which reversed the District Court’s rulings and
held that Plaintiff could move forward with its lawsuit. It denied
Comcast’s motion for rehearing. Comcast filed a petition for certiorari in the United States Supreme Court, which was granted.
Comcast argues that Plaintiff’s lawsuit should be dismissed because
it alleges that Plaintiff’s complaint was insufficient and that it did
not allege “but for” causation or refute what Comcast alleges are
legitimate business considerations for its refusal to contract with
Plaintiff.
Comcast argues that it did not extend a contract to Plaintiff’s as a
result of legitimate business practices, e.g.: that it did not have the
bandwidth necessary, that it had a preference for sports and news
programming, and that there was a lack of demand for Plaintiff’s
programming. As a result, Comcast argues that Plaintiffs have failed to
show that Comcast would have contracted with them but for Plaintiff’s
race.
Comcast points out that it had, within the same time period,
considered contracting with ESN; that it had in fact contracted with
“Aspire” led by Earvin “Magic” Johnson and Revolt TV led by Sean “Diddy”
Combs, which it claims has majority or substantial African-American
ownership. Additionally, Comcast alleges that it has carried two 100%
black-owned networks, African Channel and Black Family Channel.
Lastly, Comcast argues that Plaintiff’s case should be dismissed
because Plaintiff has failed to show that it was similarly situated to
the white-owned channels that it did contract with. The reasoning there
is that apples must be compared to apples. For instance, if there is a
white-owned channel with tremendous interest that is within Comcast’s
preferred programming, then the fact that Comcast contracted with that
network as opposed to Plaintiff’s — which Comcast alleges does not have
interest and is not its preferred programing —is not a result of race
discrimination, but instead is Comcast simply choosing the best content
for its company.
On the other hand, Plaintiffs allege that it has attempted to
contract with Comcast for approximately 8 years and has repeatedly been
passed over for white-owned companies despite Comcast’s assurances that
its channels were “good enough” and that it was on a “short list.”
Additionally, Plaintiff offered its Justice.TV network to Comcast for
free and without licensing fees. Comcast declined. As it relates to the
lack of bandwidth that Comcast claims is a reason for its refusal to
contract, Plaintiff notes that Comcast carries every channel (more than
500) that its competitors carry, except for Plaintiff’s.
Plaintiff’s channels are currently carried on Verizon, FIOS,
AT&T, U-Verse, Direct TV, Sudden Link, RCN, Century Link, and many
others. Additionally, despite its refusal to contract with Plaintiff as a
result of its alleged bandwidth scarcity, Comcast has launched more
than 80 lesser known white-owned channels. Plaintiff alleges that during
the 8 years that it attempted to contract with Comcast, Comcast
directed it to gain field support within the Comcast corporation, once
that support had been gained, Plaintiffs were told that field support
was no longer a factor.
Next, Plaintiffs were told that it needed Division Support only to be told by the Divisions that it deferred to corporate.
Plaintiffs allege that it spent hundreds of thousands of dollars in
marketing and travel to gather support that was deemed necessary, but
once achieved, was no longer sufficient.
Most explicit, is Plaintiff’s claim that a Comcast Executive stated,
“We’re not trying to create anymore Bob Johnsons.” Bob Johnson is the
founder and former owner of B.E.T. which was sold to Viacom for a
reported $3 billion.
Plaintiffs allege that Comcast’s refusal to contract, in addition to
being motivated by race alone, is also motivated by its desire not to
have its networks (and the white-owned networks that it carries) be
required to compete with Plaintiff’s networks, which are black-owned.
The United States Supreme Court’s decision will determine whether a
plaintiff who alleges race discrimination pursuant to 42 USC 1981 may
have his or her day in court if he or she can show that racial
discrimination was a factor, even among others, in a defendant’s refusal
to do business. If so, the plaintiff will be able to move forward
through the legal process — and most importantly, through the discovery
process — to investigate his or her claim and obtain the evidence
necessary (if it exists) to put the question before a jury.
On the other hand, if the Court rules instead that a plaintiff must
allege that, but for racial discrimination, the defendant would have
contracted with him or her, a plaintiff looking to have his or her day
in court will need much stronger evidence, and will be required to
disprove any other reason given by the defendant for its refusal to
contract without the benefit of discovery.
For example, if a defendant denies discrimination and instead says
that it refused to contract because of limited resources without the
benefit of discovery, the plaintiff may never learn that the defendant
doubled its spending with white-owned companies within that same time
period. To the contrary, this is information that the plaintiff might
learn through the discovery process if his or her case is allowed to
proceed.
This case, like so many other recent cases, will test the Supreme Court’s interpretation of the strength of civil rights law.
Falen O. Cox is the founding partner and director of operations
at the Savannah, Ga.-based law firm of Cox, Rodman and Middleton.
The United States Supreme Court’s decision will determine whether a plaintiff who alleges race discrimination pursuant to 42 USC 1981 may have his or her day in court if he or she can show that racial discrimination was a factor, even among others, in a defendant’s refusal to do business. If so, the plaintiff will be able to move forward through the legal process — and most importantly, through the discovery process — to investigate his or her claim and obtain the evidence necessary (if it exists) to put the question before a jury.
On the other hand, if the Court rules instead that a plaintiff must allege that, but for racial discrimination, the defendant would have contracted with him or her, a plaintiff looking to have his or her day in court will need much stronger evidence, and will be required to disprove any other reason given by the defendant for its refusal to contract without the benefit of discovery.
For example, if a defendant denies discrimination and instead says that it refused to contract because of limited resources without the benefit of discovery, the plaintiff may never learn that the defendant doubled its spending with white-owned companies within that same time period. To the contrary, this is information that the plaintiff might learn through the discovery process if his or her case is allowed to proceed.
This case, like so many other recent cases, will test the Supreme Court’s interpretation of the strength of civil rights law.
Falen O. Cox is the founding partner and director of operations at the Savannah, Ga.-based law firm of Cox, Rodman and Middleton.