Comcast, Intel Cases to Face Supreme Court Scrutiny

WASHINGTON (CN) – Taking up appeals by Comcast and Intel, the U.S. Supreme Court agreed Monday to resolve the fate of one $20 billion suit alleging a conspiracy to disadvantage television networks that are wholly black-owned, as well as a case involving retirement plans.

Entertainment Studios Networks brought the case against Comcast after negotiations fell through for Comcast to carry its various TV networks.

Backed by the Association of African American-Owned Media, Entertainment Studios accused Comcast of collaborating with the NAACP, Magic Johnson, other prominent black Americans to keep black-owned media in the “back of the bus.”

Though a federal judge dismissed the suit, the Ninth Circuit found that the challengers stated a plausible claim and reversed last year.

Comcast ripped into this conclusion with its petition for certiorari, saying the appeals court “flipped the default rule of but-for causation on its head.”

“A defendant cannot be held liable for harms caused to another unless it is the but-for cause of those harms,” Comcast argued, in a filing from the powerhouse firm Gibson Dunn. “The Ninth Circuit departed from this long-established principle when it held that liability will lie under [current law] even in the absence of but-for causation.” 

Entertainment Studios meanwhile is represented by Erwin Chemerinsky, the dean of the UC Berkeley School of Law, and by the law firm Miller Barondess.

The lawyers noted in their response brief that none of Entertainment Studios’ channels were launched during a seven-year period in which Comcast “instead launched more than 80 lesser-known, white-owned channels.”

“These are well-pleaded allegations of circumstantial facts which give rise to plausible inferences of racial discrimination,” the petition continues.

Rebutting Comcast’s characterization of the suit as an unhinged conspiracy claim, Chemerinsky emphasized that his clients “have direct evidence of discrimination.” 

The Supreme Court did not issue any statement Monday in taking up Comcast’s case, as is its custom. Similarly the justices did not issue any comment in agreeing to take up an ERISA class action in which former Intel engineer Christopher Sulyma accuses the company of overallocating investment funds from Intel retirement plans into hedge funds and private equity.

Though a federal judge tossed the suit as time barred, the Ninth Circuit reversed after giving Sulyma a more generous reading of when he had “actual knowledge of the breach or violation.”

In Intel’s petition for certiorari, attorneys at Williams & Connolly and Munger Tolles said the appeals court “injected significant uncertainty into the ERISA landscape.”

“Faced with a timeliness defense based on actual knowledge, a plaintiff can simply assert that he did not read the relevant plan documents, or simply that he cannot recall whether he saw them,” the petition states. “Plan administrators will have no ready means of disproving that assertion.”

Sulyma is represented by the firm Gupta Wessler.

Neither side has returned a request for comment.

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