Bryon Allen Racial Discrimination Case To Be Reconsidered

Contributing Author: Bryan Sullivan

The Supreme Court has ordered the 9^th Circuit Court of Appeals to reconsider its decision to allow Byron Allen and Entertainment Studios Network (ESN)’s racial discrimination case against Charter Communications to proceed, citing its unanimous decision last week in a similar case brought by the plaintiffs against Comcast.

Allen and his company ESN had sued Charter Communications for declining to carry ESN’s programming, alleging that the decision was motivated by race, in violation of 42 U.S.C. §1981. The statute states, in part (as reprinted in the Supreme Court’s recent decision) “[a]ll persons . . . the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.” Charter had filed a motion to dismiss the case which was denied by the District Court. On appeal, the 9^th Circuit Court of Appeals affirmed the lower court’s denial, which held that “mixed-motive claims are cognizable” under §1981. This affirmation would allow the case to proceed, as Allen and ESN would only have had to prove that race was a motivating factor, and not that it was a “but-for” cause.

The clarification in last week’s ruling on the standard of proof for such cases based on the Civil Rights Act of 1866 held that “a plaintiff must initially plead and ultimately prove that, but for race, it would not have suffered.” This requirement of “but-for” cause in the case, as opposed to race being a contributing factor, has a profound impact on a case as it progresses through the court system, as it shifts the burden of proof to the plaintiff sooner, and sets the bar higher. In this case, the 9^th Circuit will now have to re-evaluate its review of the District Court’s acceptance of “mixed-motive claims” at the earlier proceedings. With the newly clarified standards of “but-for” cause and the precedent of the Comcast case, the 9^th Circuit is unlikely to re-affirm the District Court’s denial, and the case may very well be dismissed.

The Supreme Court’s unanimous opinion in the similar racial discrimination suit brought by Allen and ESN against Comcast held that the appeals court had used the wrong measures in determining the validity of the claims. As reported last week, Justice Neil Gorsuch, delivering the opinion for the court, wrote, “Here, a plaintiff bears the burden of showing that race was a but-for cause of its injury. And, while the materials the plaintiff can rely on to show causation may change as a lawsuit progresses from filing to judgment, the burden itself remains constant.” Elsewhere, the decision continued, “It is ‘textbook tort law’ that a plaintiff seeking redress for a defendant’s legal wrong typically must prove but-for causation.”

In a previous Forbes article, Kori Hale had noted that this was “likely to reflect a mirror outcome” after the court initially chose not to act in the Charter appeal. This is the first case to be directly affected by the court’s decision and clarification of the standards for bringing these types of discrimination cases, but it will almost certainly not be the last.

Bryan Sullivan, Partner at Early Sullivan Wright Gizer & McRae, advises and represents his clients as a legal strategist in all their business affairs. He has significant experience on the litigation and appeals side of the practice, as well as with entertainment and intellectual property contracts, investment and financing agreements, and corporate structure documents on the dealmaking side.