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Horvitz & Levy is a solutions-based firm focused on appellate success. We are distinguished by our commitment to responsive service and on-going innovation in the areas of civil appellate litigation, amicus curiae support, and trial strategy consultation.

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March 24, 2020

Plaintiff, an African-American-owned media company, and defendant Comcast, began negotiating a contract to have Comcast carry plaintiff’s channels. When the negotiations fell through, plaintiff sued under 42 U.S.C. § 1981(a), which prohibits racial discrimination in contracting, and alleged that Comcast systematically disfavored 100% African-American-owned companies. The district court granted Comcast’s motion to dismiss, finding that plaintiff had failed to sufficiently allege that “but for” racial animus Comcast would have contracted with plaintiff. The Ninth Circuit reversed, holding that a plaintiff must only plead facts showing that race played “some role” in the contract decision.

The United States Supreme Court reversed, holding that a § 1981 claim requires the plaintiff to plausibly allege that race was the but-for cause of the alleged injury. Because the statutory text, history, and early precedent confirm § 1981 follows the general tort rule of but-for causation, the Court rejected plaintiff’s contention that it could survive a motion to dismiss by alleging facts showing race was only a “motivating factor” in defendant’s decision. The Court explained that while a plaintiff may be required to make an increasingly greater showing as the litigation progresses, the elements of the claim—including the causation standard—remain constant over the life of the lawsuit. Consequently, what the plaintiff must plausibly allege at the outset of the lawsuit depends on what the plaintiff must prove by the end of trial.