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Nat'l Ass'n of African Am.-Owned Media v. Comcast Corp. - 743 F. App'x 106 (9th Cir. 2018)

Rule:

As discussed at length in the contemporaneously filed opinion in National Association of African American-Owned Media v. Charter Communications, Inc., No. 17-55723, to prevail in a Rule 12(b)(6) motion on their § 1981 claim, plaintiffs needed only to plausibly allege that discriminatory intent was a factor in a refusal to contract, and not necessarily the but-for cause of that decision. 

Facts:

Plaintiffs-Appellants Entertainment Studios Networks, Inc. (Entertainment Studios, and together with NAAAOM, Plaintiffs) appeal the district court's dismissal under Rule 12(b)(6) of their second amended complaint (SAC). Entertainment Studios, an African American-owned operator of television networks, sought for more than a decade to secure a carriage contract from Defendant-Appellee Comcast Corporation (Comcast). These efforts were unsuccessful, and Plaintiffs filed suit, claiming that Comcast's refusal to contract was racially motivated and in violation of 42 U.S.C. § 1981. The district court thrice dismissed Plaintiffs' complaints, concluding in its third and final dismissal order that "not one fact added to the SAC is either antithetical to a decision not to contract with [Entertainment Studios] for legitimate business reasons or, in itself, indicates that the decision was racially discriminatory."

Issue:

Did plaintiff plausibly allege in its SAC discriminatory intent in Comcast’s refusal to contract?

Answer:

Yes

Conclusion:

Plaintiffs' SAC includes 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, which violates § 1981.  ("All persons . . . shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens . . . ."). These allegations include: Comcast's expressions of interest followed by repeated refusals to contract; Comcast's practice of suggesting various methods of securing support for carriage only to reverse its position once Entertainment Studios had taken those steps; the fact that Comcast carried every network of the approximately 500 that were also carried by its main competitors, except Entertainment Studios' channels; and, most importantly, Comcast's decisions to offer carriage contracts to "lesser-known, white-owned" networks at the same time it informed Entertainment Studios that it had no bandwidth or carriage capacity. Although Comcast notes that legitimate, race-neutral reasons for its conduct are contained within the SAC, when considered in the light most favorable to Plaintiffs, we cannot conclude that these alternative explanations are so compelling as to render Plaintiffs' theory of racial animus implausible. We can infer from the allegations in the SAC that discriminatory intent played at least some role in Comcast's refusal to contract with Entertainment Studios, thus denying the latter the same right to contract as a white-owned company.

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