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Comcast Corporation v. National Association of African American-Owned Media, et al.

Paid petition · United States Court of Appeals for the Ninth Circuit, No. 16-56479 · judgment November 19, 2018

Decided · March 23, 2020
Pre-decision estimate: 8% cert probability (95% interval 5%–12%)

Before the decision, about 2× the 4.1% base rate. The model weighted this up for counsel with five or more prior petitions here, a Ninth Circuit decision below, and a dissent in the court below (flagged in the petition).

Questions presented

Granted limited to question 1 presented by the petition. Entertainment Studios Networks ("ESN") owns several television networks that it sought to have carried on Comcast's cable system. Comcast and ESN met multiple times to discuss a potential deal, but Comcast ultimately declined to carry ESN's networks. ESN's response was to sue Comcast, claiming that Comcast's decision was based on an outlandish racist conspiracy between Comcast, the NAACP, and other civilrights groups and leaders to disadvantage wholly African American-owned networks in violation of 42U.S.C. § 1981. The district court dismissed ESN's complaint three times, but the Ninth Circuit reversed. The court first ruled that Section 1981 does not require but-for causation, thereby exacerbating a conflict with the decisions of five other courts of appeals. It then held that ESN's claim was plausible despite the alternative explanations for Comcast's conduct on the face of the complaint, and the complaint's failure to allege facts showing that the other companies with which Comcast contracted were similarly situated to ESN. The questions presented are:

  1. Does a claim of race discrimination under 42 U.S.C. § 1981 fail in the absence of but-for causation?

  2. Can a plaintiff state a plausible claim for relief if the complaint does not allege facts tending to exclude obvious alternative explanations for the challenged conduct and does not allege facts to support all elements of the claim?

Counsel of record

For petitioner
Miguel A. Estrada
Gibson, Dunn & Crutcher LLP

For respondent
Erwin Chemerinsky

Case

Conference history
Distributed for 4 conferences

Amicus briefs
1 cert-stage · 12 merits
(5 supporting pet./neither, 7 respondent)

Argument & decision

Argued November 13, 2019 — Miguel Estrada · Erwin Chemerinsky. Audio and transcript

Decided March 23, 2020. Opinion by Gorsuch.

Proceedings

  1. Apr 24 2020
    JUDGMENT ISSUED.
  2. Mar 23 2020
    Judgment VACATED and case REMANDED. Gorsuch, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Breyer, Alito, Sotomayor, Kagan, and Kavanaugh, JJ., joined, and in which Ginsburg, J., joined except for the footnote. Ginsburg, J., filed an opinion concurring in part and concurring in the judgment.
  3. Nov 13 2019
    Argued. For petitioner: Miguel Estrada, Washington, D. C.; and Morgan L. Ratner, Assistant to the Solicitor General, Department of Justice, Washington, D. C. (for United States, as amicus curiae.) For respondents: Erwin Chemerinsky, Berkeley, Cal.
  4. Oct 23 2019
    Reply of petitioner Comcast Corporation filed. (Distributed)
  5. Oct 15 2019
    Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument GRANTED.
  6. Sep 30 2019
    Brief amici curiae of NAACP Legal Defense & Educational Fund, Inc., et al. filed. (Distributed)
  7. Sep 30 2019
    Brief amici curiae of Members of Congress filed. (Distributed)
  8. Sep 30 2019
    Brief amici curiae of Lawyers' Committee for Civil Rights Under Law, et al. filed. (Distributed)
  9. Sep 30 2019
    Brief amicus curiae of Professor W. Burlette Carter filed. (Distributed).
  10. Sep 30 2019
    Brief amici curiae of Employment Law Professors filed. (Distributed)
  11. Sep 27 2019
    Brief amici curiae of Torts Scholars filed. (Distributed)
  12. Sep 27 2019
    Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument filed.
  13. Sep 26 2019
    Brief amici curiae of Law & History Professors filed. (Distributed)
  14. Sep 23 2019
    Brief of respondents National Association of African American-Owned Media, et al. filed. (Distributed)
  15. Sep 17 2019
    Record received from the U.S.C.A. 9th Circuit is electronic and located on PACER.
  16. Sep 17 2019
    Record received from the U.S.D.C. Central District of California is electronic and located on PACER.
  17. Sep 17 2019
    Brief amicus curiae of Issues4Life Foundation filed. (Distributed)
  18. Sep 16 2019
    Record requested from the U.S.C.A. 9th Circuit.
  19. Sep 03 2019
    CIRCULATED
  20. Aug 15 2019
    Brief amicus curiae of Center for Workplace Compliance filed.
  21. Aug 15 2019
    Brief amicus curiae of Washington Legal Foundation filed.
  22. Aug 15 2019
    Brief amici curiae of Chamber of Commerce of the United States of America, et al. filed.
  23. Aug 15 2019
    Brief amicus curiae of United States filed.
  24. Aug 08 2019
    Joint appendix filed. (Statement of costs filed)
  25. Aug 08 2019
    Brief of petitioner Comcast Corporation filed.
  26. Aug 06 2019
    Blanket Consent filed by Petitioner, Comcast Corporation.
  27. Aug 05 2019
    Blanket Consent filed by Respondents, National Association of African American-Owned Media, et al.
  28. Jul 08 2019
    SET FOR ARGUMENT on Wednesday, November 13, 2019.
  29. Jun 26 2019
    Joint motion to extend the time to file the briefs on the merits granted. The time to file the joint appendix and petitioner's brief on the merits is extended to and including August 8, 2019. The time to file respondents' brief on the merits is extended to and including September 23, 2019.
  30. Jun 18 2019
    Joint motion for an extension of time to file the briefs on the merits filed.
  31. Jun 10 2019
    Petition GRANTED limited to Question 1 presented by the petition.
  32. Jun 03 2019
    DISTRIBUTED for Conference of 6/6/2019.
  33. May 28 2019
    DISTRIBUTED for Conference of 5/30/2019.
  34. May 20 2019
    DISTRIBUTED for Conference of 5/23/2019.
  35. May 15 2019
    Rescheduled.
  36. Apr 30 2019
    DISTRIBUTED for Conference of 5/16/2019.
  37. Apr 29 2019
    Reply of petitioner Comcast Corporation filed.
  38. Apr 10 2019
    Brief amicus curiae of Chamber of Commerce of the United States of America filed. VIDED.
  39. Apr 10 2019
    Brief of respondents National Association of African American-Owned Media, et al. in opposition filed.
  40. Mar 08 2019
    Petition for a writ of certiorari filed. (Response due April 10, 2019)