By Anne Cullen, Law360 – June 10, 2019 – The U.S. Supreme Court agreed Monday to hear part of Comcast’s appeal of a ruling that revived a $20 billion racial bias lawsuit over its refusal to carry an African American-owned production company’s channels.
The justices said in a brief order that they’ll take up one of the core legal questions in the case, which is centered on what role the production firm must show racial bias played in Comcast Corp.’s rejections.
The Ninth Circuit found last year that Entertainment Studios, a production firm owned by former comedian Byron Allen, only needs to show that racial discrimination was a factor in Comcast’s rejections for the case to move forward. But Comcast insisted in a March bid for high court review that the production firm needs to prove bias was the deciding factor.
And the Supreme Court has decided to weigh in on this contention, taking on the case to answer whether the studio’s race discrimination claims need to be supported by this “but for” causation to proceed.
The justices’ determination in Comcast’s case will undoubtedly make waves in a related racial bias suit that Allen’s production firm lodged against Charter Communications Inc., in which Allen contends Charter also refused to carry his studio’s channels because he’s African American.
Both cases were lodged in California federal court several years ago by Allen’s firm alongside the National Association of African American-Owned Media.
While a California federal judge shut down Allen’s case against Comcast in late 2016 — finding Comcast’s refusal to work with Entertainment Studios could’ve been based on legitimate business reasons — a separate judge in the same California court decided to let the Charter case move forward just a few weeks later.
In the Charter case, the judge concluded that “arguably-racist” statements made by Charter executives combined with Entertainment Studios’ years of failed efforts to work with Charter supported Allen’s racial bias claims.
After two separate appeals, the Ninth Circuit found Allen’s claims can proceed against both broadcast behemoths in a pair of decisions released in tandem late last year. In the parallel rulings, the panel concluded that the “but-for” causation element wasn’t necessary, 1/2 and that Allen’s firm need only show racism played a role in the decisions not to contract with him.
Charter lodged its own petition for a Supreme Court review in March, but the justices are still mulling that one over.
A representative for Charter said it is not commenting at this time. Representatives and counsel for Comcast and Entertainment Studios did not immediately respond to requests for comment Monday.
Comcast is represented by Miguel A. Estrada, Thomas G. Hungar, Douglas Fuchs, Jesse A. Cripps, Bradley J. Hamburger and Samuel Eckman of Gibson Dunn & Crutcher LLP.
Charter is represented by Paul D. Clement, Jeffrey S. Powell, Judson D. Brown, Devin S. Anderson and William K. Lane III of Kirkland & Ellis LLP.
NAAAOM and Entertainment Studios are represented by Louis R. Miller, J. Mira Hashmall and David W. Schecter of Miller Barondess, LLP and Erwin Chemerinsky of the University of California, Berkeley School of Law.