EXCLUSIVE: Heading towards a $20 billion showdown with Comcast at the U.S. Supreme Court this fall in his long running racial discrimination lawsuit against the media giant, Byron Allen today tore into the Brian Roberts-run behemoth and an 11th hour intervention by the Department of Justice
“This is historic,” the Entertainment Studios boss said of the August 15 brief filed by the feds seeking to tighten the definitions of a Reconstruction Era statute in Comcast’s favor. “Donald Trump’s DOJ and Comcast are working together to destroy a civil rights statute in the U.S. Supreme Court.”
“You have one of the biggest media companies in the world, which has been beating up Donald Trump for racism, and now they are saying, we will work together to maintain institutionalized racism in America, in this Amicus Brief they delivered last Thursday,” Allen asserted in the starkest of terms of the now William Barr-run DOJ and its move to tip the scales for Comcast as the parties await a November 13 hearing before the nine Justices.
The newly declared emphasis by the DOJ now puts a more than 150-year law in a distinctly different light from how Allen’s lawyers have been reading it, as the Department’s filing openly says.
“Although the statute does not expressly describe the necessary causal link between a plaintiff ’s race and a defendant’s refusal to contract, the text is most naturally read to require but-for causation, and background common-law principles confirm that a but-for rule applies,” the incensory submission last week from Solicitor General Noel Francisco and Assistant AG Joseph Hunt argues (read it here).
“The court of appeals erred in concluding otherwise,” the DOJ brass state of lower court ruling in February in the huge money suit that Allen first filed in early 2015, along with a $10 billion suit against Charter Communications several months later. Comcast and Charter sought to have the matter dismissed. When they failed in that effort to end a case that they framed as a form of corporate expression, the MSNBC-owner took the battle to Chief Justice John Roberts and the Associate Justices.
The government detailed its POV by saying last week that “because ‘making’ a contract means entering a contract, a person does not enjoy ‘the same right’ guaranteed by Section 1981 if race prevents her from entering a contract that a similarly situated white person would have entered. And the inverse is also true.”
The feds’ brief leaning into the law to require that Entertainment Studios has to prove that race was not merely a motivating factor, as 9th Circuit interpreted the statute earlier this summer. Now, under the DOJ’s take of the stature, Allen’s lawyers could be required to prove that race was absolutely only reason that Comcast didn’t place the company’s channels on its distribution services and platforms.
For Allen, the result is a near impossible standard for Entertainment Studios or any other person or entity availing themselves of the statute as it presently stands.
“They said, we need to go to the Supreme Court and change the definition of the statute so African Americans cannot use it and we can compromise everyone’s civil rights,” Allen told Deadline of the sudden paperwork by the DOJ, offering the Comcast and their well-funded lobbyists in D.C. an advantage at the Supreme Court.
“Comcast, in the name of profits, is compromising everyone’s civil rights,” the CEO and Joe Biden-donor proclaimed. “If you think you have a good case, take me to court. Deal with me. Don’t jeopardize everybody’s civil rights.”
Contacted by Deadline, Comcast had no comment on the DOJ brief or Allen’s remarks about the filing. Entertainment Studios themselves have until next month to respond to the feds’ filing and Comcast’s own docket entry citing the Appeal Court reading of the post-Civil War statute as too broad.
Following a surprising reversal of fortune this winter where the 9th Circuit Court of Appeal essentially brought the case back to life, SCOTUS agreed in June that they would review the matter after a request by Philadelphia-based and very well politically connected Comcast.
With the initial filing of his cases in 2015 and 2016, Allen’s contention has been that both Comcast and Charter violated the Civil Rights Act after he attempted for years to get the cable giants to carry his networks, which were available to millions of television viewers through rival distributors including Verizon, the now AT&T-owned DirecTV and DISH. The African-American executive said he has been repeatedly rebuffed and jerked around and states clearly that he believes race played a factor because Entertainment Studios is a fully minority owned entity.
Both Comcast and Charter in their respective suits have said race was not a factor in the carriage deals or lack there of.
Allen and Entertainment Studios are represented in the case by a team from Miller Bardondess LLP and University of California Berkley School of Law’s Erwin Chemerinsky. Attorneys from Gibson Dunn & Crutcher LLP are working for Comcast in the matter.