A $20 billion lawsuit is headed to the Supreme Court and a loss could mean erosion or loss of major civil rights tool
WASHINGTON—Entertainment mogul Byron Allen said the genesis of a $20 billion lawsuit he filed against Comcast Corp. came from a conversation and a question posed to him by Obama administration officials.
Disgusted with the racism—veiled and otherwise—and tired of the institutional barriers put in place to economically stifle Blacks in the business sphere, he said he decided to file a lawsuit against cable giant Comcast and Charter Communications.
That was in 2015. After a bruising four-year battle in the lower courts in which the Ninth Circuit court ruled twice in his favor, on Nov. 13 the case is slated to be heard in front of the justices in the U.S. Supreme Court.
“The Obama administration came to me and said some media companies wanted to get bigger, buy bigger assets,” Mr. Allen recently told the crew at The Breakfast Club, a hip hop-oriented radio and internet broadcast. “(They) said Comcast wanted to buy this and Charter wanted to buy that blah, blah, blah. They asked if they were good corporate citizens. I asked if they wanted the Hollywood answer or the real answer. They said they wanted the real answer so I told them, ‘Not no, but hell no,’ they’re not good citizens.”
“They said how do you figure? The industry spends $70 billion in licensing cable networks. Seventy billion dollars and African American-owned media get zero. And that’s not fair. They said we hear that a lot. They asked what I’m willing to do. They said people were afraid to speak up because of repercussions and I said I’ll speak up and do it in a way that it wouldn’t be a problem again. So I filed a lawsuit.”
Mr. Allen, who owns media assets he says total $1 billion, filed a federal lawsuit against Comcast and filed a $10 million lawsuit against Charter. The suit, filed in California, contends that Comcast racially discriminated against him when it refused to carry his cable-TV channels on its systems. He is also challenging the fact that Comcast spends $25 billion a year on licensing channels but less than $3 million of that pot is spent on “100 percent African American-owned media.”
While Mr. Allen hopes to win his case, there is growing speculation that a win could change the way discrimination is handled.
The lawsuit is causing increasing concern among civil rights organizations who worry that if Comcast wins, the Trump administration may take the opportunity to weaken or gut a key provision of discrimination protections in labor and contracts for Blacks, while erasing a 153-year-old post-Civil War civil rights bill that ensured “that all people in the United States—(specifically Blacks)—h(ad) the same rights to make and enforce contracts enjoyed by white citizens.”
Kelly Charles-Collins, a Tampa-based lawyer, said the case has enormous implications.
“With the way that our courts are set up, they’re not the biggest supporters of civil rights, although there are laws intended to protect,” said Atty. Charles-Collins, an American employment law attorney, award-winning TEDx speaker and CEO of HR Legally Speaking, a human resources consulting firm. “The NAACP now understands the importance of this case. It’s not just about his getting his stations on Comcast.”
“This is a really huge issue that people don’t see the nuance in. The bigger issue is being able to contract. The Rev. Dr. Martin Luther King talked about economic inclusion. This is what this case is about: the ability for us to be included in the economic success of this country.”
Mrs. Charles-Collins said what’s at issue is that Mr. Allen is arguing that race was a factor and insists he can prove it. “With ‘but for,’ the difference is whether race is a factor versus whether it was the factor … but how do you prove that? Very rarely do you have direct evidence of racism. Someone can argue that their decisions are or were race-neutral and under current law is very nearly impossible to prove.
“And now the Department of Justice is involved and looking for ways to erode sections of the Section 1981,” she explained.
The Trump administration through the Justice Dept. signed on as a friend of the court, siding with Comcast. Critics say the feds apparently plan to focus on Section 1981 of the 1866 Civil Rights law in an effort to erode the law. The Trump administration position is in keeping with the government’s hostility to Black people, employee protections and its business-friendly pronouncements and policies, say critics.
Cori Harvey, a Florida-based attorney who specializes in business law, economics and entrepreneurship, said the case could be consequential.
“This could represent a significant lowering of the barrier to justice,” she explained.
“It’s a fundamental question of who has access to legal recourse. The defendant has information needed such as if anything happened in emails, correspondence, etc. The plaintiff is in the dark. There’s power in darkness in shielding the defendant.”
Mr. Allen will “be able to get access to emails … this forces them to deliver into the public sphere information previously hidden,” said the attorney.
“The Ninth Circuit gave Mr. Allen a shot. It forces Comcast to open secret chambers. That doesn’t happen too often. This leaves Comcast exposed and vulnerable.”
Mr. Allen’s lawyer, Louis R. “Skip” Miller, managing partner of Los Angeles law firm Miller Barondess LLP, said he hadn’t expected the case to reach to the Supreme Court.
“We won in the 9th Circuit District Court and I thought it was the end of it because the U.S. Supreme Court takes just a few cases,” said Mr. Miller, one of Los Angeles’ top litigators. “So I wasn’t really expecting this case to be considered but this case is really important.”
Mr. Miller, who has been practicing law for 45 years, said that right after the Civil War, Section 1981 prohibited racial discrimination in contracts to allow freed slaves to move towards economic self-sufficiency.
“It was upheld over the years and construed broadly,” he said. “In our case we say race has to be a motivating factor not one factor. They could say they don’t have the bandwidth and not wanting to add channels. Non-racial, racial, it doesn’t make sense. Racial discrimination is bad. It’s pretty clear that you can’t discriminate.”
When asked, he said he wouldn’t be arguing the case before the Supreme Court. The person Mr. Allen has hired for that task, he said, is Erwin Chemerinsky, who became the 13th dean of Berkeley School of Law in 2017.
“He’s an expert trial lawyer,” said Mr. Miller of Mr. Chemerinsky, who is the founding dean of the University of California Irvine’s Donald Bren School of Law and served from 2008 to 2017. He has argued a number of cases before the Supreme Court.
Mr. Allen has offered scathing criticism of Comcast’s position and tactics. Their behavior has been racist and deeply disrespectful despite his being able to amass eight cable networks, 43 syndicated TV series, The Weather Channel, a movie studio and a movie distribution company, according to Mr. Allen.
He has also inked deals with Dish Network, DirecTV, Verizon FiOS and AT&T/U-Verse.
He accused Comcast of repeatedly lowballing him in negotiations and disrespecting him because of his race. Examples? He said an employee told him a Comcast executive said they didn’t intend to create another Bob Johnson, referring to the billionaire founder of Black Entertainment Television. Another allegedly told his governmental affairs person that Comcast doesn’t negotiate with terrorists.
“They treat us like we’re like a bunch of monkeys looking for a banana. They told me drop the case and we might meet with you, might work for you. That’s racist,” he said on The Breakfast Club. “First of all, we won twice and I didn’t bring it to the Supreme Court. They should do it the same way as they do with all White people … I asked them to sit with me and they said no.”
“Have respect sit down with me, work it out and it goes away. Don’t jeopardize 100 million minorities for this,” he said.
A host of civil rights organizations agree with the case’s importance. The NAACP, the National Urban League, Color of Change, and the National Action Network are among those who have filed briefs in support of Mr. Allen’s lawsuit. The NAACP Legal Defense Fund filed a separate brief that included 10 other organizations, including the ACLU, the Mexican American Legal Defense and Educational Fund, and the National Women’s Law Center. Senators Kamala Harris, Cory Booker, Richard Blumenthal and Ron Widen signed friendly briefs but only eight members of the Congressional Black Caucus did the same.
Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law, said on Twitter, “Section 1981 of the Civil Rights Act of 1866 is literally one of the nation’s oldest civil rights statutes. We are proud to stand with @NAACP @NAACP _ LDF & @civilrightsorg in calling on the #SCOTUS to reject Comcast’s attempt to cut the heart of this historic law. @LawyersComm.”
The Lawyers’ Committee brief represents 22 organizations, including the Asian Americans Advancing Justice, the Center for Constitutional Rights, the National Council of Jewish Women, and the National Organization for Women Foundation.
She described the case elsewhere as “the most important civil rights case to be heard by the Supreme Court in term. A negative ruling stands to all but shut the courthouse door on a vast number of victims of discrimination all across the country.”
The NAACP, Color of Change and other civil rights groups have called for a boycott of Comcast because the media giant seeks to change a seminal civil rights law.
In a fundraising letter, Color of Change said, “Comcast and its executives are seeking to roll back landmark civil rights protections for Black people, while also seeking to profit from our pain and the history of struggle … we cannot allow a corporation to set a dangerous precedent with our rights, while also profiting from the painful past that led to the passing of the very civil rights act it is challenging.”
Comcast officials have dismissed Mr. Allen’s claims set forth in his lawsuit.
Comcast said race had nothing to do with rejecting Mr. Allen’s channels, noting that they had low ratings. In response to an earlier NAACP statement, Comcast spokesperson Sena Fitzmaurice said in an email to a Philadelphia Inquirer reporter: “This case arises from a frivolous discrimination claim that cannot detract from Comcast’s strong civil rights and diversity record or our outstanding record of supporting and fostering diverse programming from African American-owned channels.”
“We have been forced to appeal this decision to defend against a meritless $20 billion claim, but have kept our argument narrowly focused. We are not seeking to roll back the civil rights laws—all we are asking is that the court apply Section 1981 in our case the same way it has been interpreted for decades across the country.”
“Given the makeup of the Supreme Court and what the DOJ (Justice Dept.) presents, there may be an opportunity to set forth certain standards in the law,” said Los Angeles attorney Dawn Collins, co-founder of CollinsKim LLP and a specialist in employment law.
“But it may be a opportunity to establish higher standards and burden of proof. The standard from 1866 could change and make it harder to get a trial. That’s the scary part,” she said. “This could have a lasting impact on legal standard and making it more difficult for the plaintiff, making it a lot harder to open the door, get through the door.”
Mr. Allen said he didn’t ask for his case to be considered by the Supreme Court, but asserts he will not withdraw his lawsuit and remains confident that he will prevail.
“Unfortunately, Comcast has chosen to use the U.S. Supreme Court to maximize its own profits. If Comcast thinks that we are wrong, it should go to trial and make its case. It should not challenge and put at risk all minorities’ ability to prove discrimination under the Civil Rights Act that has been in place for 153 years,” Allen said in a guest column in Deadline in August this year. “Meanwhile, I hope that people of conscience will let the U.S. Supreme Court, Donald Trump’s DOJ, and Comcast know, enough is enough.”
“Four hundred years after the start of slavery in America, every day, America kills African Americans in the classroom by making sure we don’t get a proper education; in the boardroom by making sure we don’t have true economic inclusion; and in the courtroom with Jim Crow laws and massive incarceration, long before you watch us bleed to death in the streets. I hope that America takes this historic opportunity to make sure that we have equal rights for all and don’t allow Comcast—headed by CEO Brian Roberts—to manipulate civil rights laws in partnership with the Donald Trump administration, which will hurt millions of Americans, for Comcast’s own financial gain.”