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Case 2:15-cv-01239-TJH-MAN Document 29-1 Filed 04/24/15 Page 1 of 48 Page ID #:160

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MIGUEL A. ESTRADA, Pro Hac Vice


mestrada@gibsondunn.com
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, N.W.
Washington, DC 20036-5306
Telephone: 202.955.8257
Facsimile: 213.530.9616

Attorneys for Defendants


COMCAST CORPORATION; NATIONAL
ASSOCIATION FOR THE ADVANCEMENT
OF COLORED PEOPLE; NATIONAL URBAN
LEAGUE, INC.; AL SHARPTON; NATIONAL
ACTION NETWORK, INC.; MEREDITH
ATTWELL BAKER

[Additional counsel listed on next page.]

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION


NATIONAL ASSOCIATION OF
AFRICAN-AMERICAN OWNED
MEDIA, a California limited liability
company; and ENTERTAINMENT
STUDIOS NETWORKS, INC., a
California corporation,
Plaintiffs,
v.
COMCAST CORPORATION, a
Pennsylvania corporation; TIME
WARNER CABLE INC., a Delaware
corporation; NATIONAL
ASSOCIATION FOR THE
ADVANCEMENT OF COLORED
PEOPLE, a New York corporation;
NATIONAL URBAN LEAGUE, INC.,
a New York corporation; AL
SHARPTON, an individual;
NATIONAL ACTION NETWORK,
INC., a New York corporation;
MEREDITH ATTWELL BAKER, an
individual; and DOES 1 through 10,
inclusive,

CASE NO. 2:15-cv-01239-TJH-MAN


MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
MOTION TO DISMISS PLAINTIFFS
COMPLAINT BY DEFENDANTS
COMCAST CORPORATION,
NATIONAL ASSOCIATION FOR
THE ADVANCEMENT OF
COLORED PEOPLE, NATIONAL
URBAN LEAGUE, INC., AL
SHARPTON, NATIONAL ACTION
NETWORK, INC., AND MEREDITH
ATTWELL BAKER
Judge: Hon. Terry J. Hatter, Jr.
Hearing Date: June 8, 2015
Time: UNDER SUBMISSION
Courtroom: 17

Defendants.
Memo of Points and Authorities ISO Motion to
Dismiss Plaintiffs Complaint by Defendants Comcast,
NAACP, NUL, Sharpton, NAN, and Baker

Case 2:15-cv-01239-TJH-MAN

Case 2:15-cv-01239-TJH-MAN Document 29-1 Filed 04/24/15 Page 2 of 48 Page ID #:161

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DOUGLAS FUCHS, SBN 196371


dfuchs@gibsondunn.com
JESSE A. CRIPPS, SBN 222285
jcripps@gibsondunn.com
BRADLEY J. HAMBURGER, SBN 266916
bhamburger@gibsondunn.com
GIBSON, DUNN & CRUTCHER LLP
333 South Grand Avenue
Los Angeles, CA 90071-3197
Telephone: 213.229.7000
Facsimile: 213.229.7520
MICHAEL R. HUSTON, SBN 278488
mhuston@gibsondunn.com
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, N.W.
Washington, DC 20036-5306
Telephone: 202.887.3793
Facsimile: 213.530.9604
Attorneys for Defendants
COMCAST CORPORATION; NATIONAL
ASSOCIATION FOR THE ADVANCEMENT
OF COLORED PEOPLE; NATIONAL
URBAN LEAGUE, INC.; AL SHARPTON;
NATIONAL ACTION NETWORK, INC.;
MEREDITH ATTWELL BAKER
PETER C. HARVEY, Pro Hac Vice Pending
pcharvey@pbwt.com
PATTERSON BELKNAP WEBB & TYLER LLP
1133 Avenue of the Americas
New York, NY 10036
Telephone: 212.336.2000
Facsimile: 212.236.2222
Attorneys for Defendant
NATIONAL URBAN LEAGUE, INC.

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Memo of Points and Authorities ISO Motion to


Dismiss Plaintiffs Complaint by Defendants Comcast,
NAACP, NUL, Sharpton, NAN, and Baker

Case 2:15-cv-01239-TJH-MAN

Case 2:15-cv-01239-TJH-MAN Document 29-1 Filed 04/24/15 Page 3 of 48 Page ID #:162

TABLE OF CONTENTS

INTRODUCTION .......................................................................................................... 1

SUMMARY OF ALLEGATIONS ................................................................................. 5

LEGAL STANDARDS .................................................................................................. 6

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A.

Lack Of Personal Jurisdiction Rule 12(b)(2) .......................................... 6

B.

Failure To State A Claim Rule 12(b)(6) ................................................. 7

ARGUMENT .................................................................................................................. 8
A.

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This Court Lacks Personal Jurisdiction Over NUL, The NAACP,


NAN, Rev. Sharpton, And Ms. Baker........................................................ 8
1.

Plaintiffs Allegations And Defendants Evidence


Demonstrate A Lack Of Sufficient California Contacts.................. 9

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2.

There Is No Basis For General Jurisdiction................................... 12

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3.

There Is No Basis For Specific Jurisdiction .................................. 14

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B.

Ms. Baker Is Immune From Plaintiffs Claims ........................................ 16

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C.

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Plaintiffs Have Alleged No Facts To Plausibly Show That Comcast


Discriminated Based On Race ................................................................. 21

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1.

The Complaints Conclusory Assertions Must Be Set Aside ........ 24

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2.

The Memorandum Of Understanding, On Its Face,


Undermines Plaintiffs Allegation Of Intentional Race
Discrimination................................................................................ 27

3.

Plaintiffs Remaining Allegations Do Not Exclude An


Obvious, Non-Discriminatory Reason For Comcasts
Carriage Decisions ......................................................................... 31

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D.

Plaintiffs Have Not Plausibly Alleged That Any Defendant


Conspired To Discriminate Based On Race ............................................ 37

CONCLUSION ............................................................................................................. 39

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Gibson, Dunn &
Crutcher LLP

Memo of Points and Authorities ISO Motion to


Dismiss Plaintiffs Complaint by Defendants Comcast,
NAACP, NUL, Sharpton, NAN, and Baker

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TABLE OF AUTHORITIES

Page(s)

Cases

Amba Mktg. Sys., Inc. v. Jobar Intl, Inc.,


551 F.2d 784 (9th Cir. 1977) ..................................................................................... 6

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Amobi v. Ariz. Bd. of Regents,


No. 10-1561, 2011 WL 308466 (D. Ariz. Jan. 28, 2011)........................................ 25
Anderson v. Creighton,
483 U.S. 635 (1987)................................................................................................. 20
Ardalan v. McHugh,
No. 13-1138, 2014 WL 3846062 (N.D. Cal. Aug. 4, 2014) .................................... 34
Ashcroft v. al-Kidd,
131 S. Ct. 2074 (2011)............................................................................................. 20
Ashcroft v. Iqbal,
556 U.S. 662 (2009)........................................................... 2, 7, 22, 23, 24, 26, 32, 34
Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007)................................................................................. 7, 23, 38, 39
Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics,
403 U.S. 388 (1971)................................................................................................. 22
Bradley v. Fisher,
13 Wall. 335 (1872) ................................................................................................. 19
Butz v. Economou,
438 U.S. 478 (1978)........................................................................................... 18, 19
Calder v. Jones,
465 U.S. 783 (1984)................................................................................................. 14
Comcast Cable Commcns, LLC v. FCC,
717 F.3d 982 (D.C. Cir. 2013) ................................................................. 3, 26, 32, 35
Daimler AG v. Bauman,
134 S. Ct. 746 (2014) ................................................................................. 8, 9, 13, 14
Davis v. HSBC Bank Nev., N.A.,
691 F.3d 1152 (9th Cir. 2012) ............................................................................. 2, 28
Memo of Points and Authorities ISO Motion to
Dismiss Plaintiffs Complaint by Defendants Comcast,
NAACP, NUL, Sharpton, NAN, and Baker

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Crutcher LLP

Doe v. Unocal Corp.,


248 F.3d 915 (9th Cir. 2001) ................................................................................. 6, 9
Eclectic Props. E., LLC v. Marcus & Millichap Co.,
751 F.3d 990 (9th Cir. 2014) ................................................................... 7, 23, 38, 39
EcoDisc Tech. AG v. DVD Format/Logo Licensing Corp.,
711 F. Supp. 2d 1074 (C.D. Cal. 2010) ................................................................... 16
Enlow v. Salem-Keizer Yellow Cab Co.,
389 F.3d 802 (9th Cir. 2004) ................................................................................... 36
Gay v. Waiters & Dairy Lunchmens Union, Local No. 30,
694 F.2d 531 (9th Cir. 1982) ................................................................................... 22
Gen. Building Contractors Assn, Inc. v. Pennsylvania,
458 U.S. 375 (1982)................................................................................................. 22
Ghosh v. Uniti Bank,
566 F. Appx 596 (9th Cir. 2014) ............................................................................ 26
Gonzalez v. Planned Parenthood of L.A.,
759 F.3d 1112 (9th Cir. 2014) ................................................................................. 30
Goodyear Dunlop Tires Operations, S.A. v. Brown,
131 S. Ct. 2846 (2011)............................................................................... 8, 9, 12, 13
Great Am. Fed. Sav. & Loan Assn v. Novotny,
442 U.S. 366 (1979)................................................................................................. 38
Greenlaw v. Adams,
No. C08-04782 RMW, 2010 WL 725346 (N.D. Cal. Feb. 26, 2010) ..................... 38
Hai T. Le v. Hilton Hotel,
No. C 09-4871 PJH, 2010 WL 144809 (N.D. Cal. Jan. 11, 2010) .......................... 38
Han v. University of Dayton,
541 F. Appx 622 (6th Cir. 2013) ...................................................................... 26, 35
Herring Broad., Inc. v. FCC,
515 F. Appx 655 (9th Cir. 2013) ............................................................................ 25
Hogan v. Anasazi Found.,
No. 09-2379, 2010 WL 3724751(D. Ariz. Sept. 17, 2010) ..................................... 27
Memo of Points and Authorities ISO Motion to
Dismiss Plaintiffs Complaint by Defendants Comcast,
NAACP, NUL, Sharpton, NAN, and Baker

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Crutcher LLP

In re Century Aluminum Co. Sec. Litig.,


729 F.3d 1104 (9th Cir. 2013) ........................................................................... 23, 32
Intl Shoe Co. v. Washington,
326 U.S. 310 (1945)................................................................................................... 8
ITT World Commcns, Inc. v. FCC,
595 F.2d 897 (2d Cir. 1979) .................................................................................... 18
Johnson v. Lucent Tech. Inc.,
653 F.3d 1000 (9th Cir. 2011) ................................................................................. 34
Johnson v. Sun Cmty. Fed. Credit Union,
No. 11-2112, 2012 WL 1340434 (S.D. Cal. Apr. 18, 2012) ................................... 27
Knievel v. ESPN,
393 F.3d 1068 (9th Cir. 2005) ................................................................................... 2
Konarski v. Rankin,
F. Appx , No. 13-17384, 2015 WL 899268 (9th Cir. Mar. 4, 2015) ............ 37
Lee v. City of Los Angeles,
250 F.3d 668 (9th Cir. 2001) ................................................................................... 18
Lexmark Intl, Inc. v. Static Control Components, Inc.,
134 S. Ct. 1377 (2014)............................................................................................. 33
Mansour v. Superior Court,
38 Cal. App. 4th 1750 (1995) .................................................................................. 16
Martinez v. Aero Caribbean,
764 F.3d 1062 (9th Cir. 2014) ................................................................................. 13
Peloza v. Capistrano Unified Sch. Dist.,
37 F.3d 517 (9th Cir. 1994) ..................................................................................... 38
Picot v. Weston,
780 F.3d 1206 (9th Cir. 2015) ............................................................. 8, 9, 14, 15, 16
Ryan v. Bilby,
764 F.2d 1325 (9th Cir. 1985) ............................................................................. 7, 17
Schwarzenegger v. Fred Martin Motor Co.,
374 F.3d 797 (9th Cir. 2004) ........................................................................... 6, 8, 15
Memo of Points and Authorities ISO Motion to
Dismiss Plaintiffs Complaint by Defendants Comcast,
NAACP, NUL, Sharpton, NAN, and Baker

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Sher v. Johnson,
911 F.2d 1357 (9th Cir. 1990) ................................................................................... 6
Slater v. A.G. Edwards & Sons, Inc.,
719 F.3d 1190 (10th Cir. 2013) ............................................................................... 30
Starr v. Baca,
652 F.3d 1202 (9th Cir. 2011) ................................................................................... 7
Stump v. Sparkman,
435 U.S. 349 (1978)............................................................................................. 7, 16
TCR Sports Broad. Holding, LLC v. FCC,
679 F.3d 269 (4th Cir. 2012) ..................................................................................... 3
Thinket Ink Info. Res., Inc. v. Sun Microsystems, Inc.,
368 F.3d 1053 (9th Cir. 2004) ................................................................................. 33
Turner Broad. Sys., Inc. v. FCC,
512 U.S. 622 (1994)................................................................................................. 32
Van Buskirk v. Cable News Network, Inc.,
284 F.3d 977 (9th Cir. 2002) ................................................................................... 28
Walden v. Fiore,
134 S. Ct. 1115 (2014)................................................................................... 9, 15, 16
Wood v. Moss,
134 S. Ct. 2056 (2014)................................................................................... 7, 17, 20
Statutes
05 U.S.C. 551(6) ........................................................................................................ 18

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05 U.S.C. 551(7) ........................................................................................................ 18

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05 U.S.C. 554(a) ........................................................................................................ 18

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42 U.S.C. 1981 ........................................................................................................... 21

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42 U.S.C. 1985(3) ...................................................................................................... 37

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Crutcher LLP

47 U.S.C. 309(a) ........................................................................................................ 18


47 U.S.C. 310(d) ........................................................................................................ 17
Memo of Points and Authorities ISO Motion to
Dismiss Plaintiffs Complaint by Defendants Comcast,
NAACP, NUL, Sharpton, NAN, and Baker

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47 U.S.C. 616 ............................................................................................................... 4

Regulations

47 C.F.R. 1.1206 ........................................................................................................ 19

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Rules

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Fed. R. Civ. P. 12(b)(2) .............................................................................................. 6, 8

Fed. R. Civ. P. 12(b)(6) .................................................................................................. 7

Fed. R. Evid. 201(b)(1) ................................................................................................. 18

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Other Authorities
FCC Release, Commission Seeks Comment On Applications of Comcast
Corporation, General Electric Company, and NBC Universal, Inc., to Assign
and Transfer Control of FCC Licenses (Mar. 18, 2010) ......................................... 19
FCC, Memorandum Opinion and Order,
In re Applications of Comcast Corp., Gen. Electric Co. and NBCUniversal,
Inc., MB Docket No. 10-56 (Jan. 18, 2011) ...................................................... 18, 20
In re Herring Broad., Inc.,
24 F.C.C. Rcd. 12967 (2009)..................................................................................... 3
In re Herring Broad., Inc.,
26 F.C.C. Rcd. 8971 (2011)..................................................................................... 32

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Memo of Points and Authorities ISO Motion to


Dismiss Plaintiffs Complaint by Defendants Comcast,
NAACP, NUL, Sharpton, NAN, and Baker

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INTRODUCTION

The Plaintiffs in this caseEntertainment Studios Networks, Inc. (ESN) and

the National Association of African-American Owned Media (NAAAOM)allege

race discrimination. Their theory is as preposterous as it is offensive. According to

Plaintiffs, the National Association for the Advancement of Colored People

(NAACP) and the National Urban League, Inc. (NUL)i.e., the Nations oldest

civil rights organizationshave conspired with Comcast to intentionally discriminate

against African Americans. The alleged conspiracy also includes another respected

civil rights organization, the National Action Network, Inc. (NAN), Rev. Al

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Sharpton, and a former FCC Commissioner, Meredith Baker, who is claimed to have

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engaged in wrongdoing during her service as a government official (though not

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wrongdoing with any connection to race discrimination). Unsurprisingly, the

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Complaint is completely devoid of factual allegations that could remotely support

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Plaintiffs outlandish and defamatory claims under the applicable pleading standard.

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Nor does the Complaint bother to allege facts sufficient to establish personal

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jurisdiction as to several Defendants who have no relevant contacts with California.

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Indeed, the allegations of the Complaintincluding its demand of twenty billion

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dollarsare entirely fantastical and do not remotely resemble the factually supported

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grievance of any actual victim of discrimination.

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The utter lack of factual support for Plaintiffs claims is obvious even from the

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Complaint itself. As Plaintiffs are forced to concede, Comcast routinely contracts with

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African American content providers. Compl. 2122, 7677. This is irrelevant,

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according to Plaintiffs, because the purported focus of the alleged discrimination is not

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African Americans, or African American-owned companies, but a unique class

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completely contrived for this lawsuit: 100% African American-owned companies.

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Compl. 2. African Americans who do not meet Plaintiffs peculiar notions of racial

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identity are offensively labeled as token fronts and window dressing. E.g., Compl.

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7, 21, 22, 28. Plaintiffs thus will ask this Court to rule, under a pleading standard

Gibson, Dunn &


Crutcher LLP

Memo of Points and Authorities ISO Motion to


Dismiss Plaintiffs Complaint by Defendants Comcast,
NAACP, NUL, Sharpton, NAN, and Baker

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that requires claims to be plausible, Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009), that

Comcast is prepared to contract with companies predominantly owned by African

Americans, or majority owned by African Americans, but has nonetheless invidiously

teamed up with the NAACP, the National Urban League, NAN, and the Rev. Al

Sharpton to refuse to contract with 100% African American-owned companies. It

would be difficult to overstate the utter implausibility of these claims. And if more

confirmation were needed, Plaintiffs directly undermine their unsupported claims of

discrimination by admitting in the Complaint that Comcast does, in fact, offer carriage

on its cable systems to a company owned 100% by African Americans. Compl. 55.

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As purported support for their conspiracy assertions, Plaintiffs point to a

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Memorandum of Understanding (MOU) that Comcast entered into in 2010 with the

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NAACP, NUL, and NAN. Comcast signed the MOU during its acquisition of

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NBCUniversal, Compl. 5, in order to memorialize certain diversity commitments

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made by the combined company. Plaintiffs argue that the MOU is really a Jim Crow

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process that relegates African American content owners to an inferior path when being

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considered for carriage. Compl. 13. Of course, this Court may examine the MOU

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itself in deciding this motion to dismiss, because Plaintiffs refer to it as a basis for their

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claims. See, e.g., Davis v. HSBC Bank Nev., N.A., 691 F.3d 1152, 1160 (9th Cir.

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2012) (courts deciding a motion to dismiss may take into account documents whose

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contents are alleged in a complaint and whose authenticity no party questions, but

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which are not physically attached to the [plaintiffs] pleading (quoting Knievel v.

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ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005))) (alteration in original). The MOU on its

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face shows that Comcast committed to the civil rights organizations to increase

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diversity in its program offerings by offering additional opportunities for African

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American content-providers, notwithstanding bandwidth constraints that otherwise

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would weigh heavily against any new request for carriage on Comcasts cable systems.

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That is, the MOU is a benign effort to promote diversity that in no respect supplants

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Gibson, Dunn &
Crutcher LLP

Memo of Points and Authorities ISO Motion to


Dismiss Plaintiffs Complaint by Defendants Comcast,
NAACP, NUL, Sharpton, NAN, and Baker

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other preexisting avenues for obtaining carriage. It is shameful that Plaintiffs claim to

champion racial justice for African Americans even as they defame respected civil

rights organizations for securing such additional opportunities for minority

communities. And it would be a travesty if Defendants efforts to provide those

additional opportunities to African Americans allowed this discrimination suit to

survive dismissal.

The reality is that this is an ordinary business grievance masquerading as a racial

discrimination claim. Comcast is a cable television provider that delivers video

programming content to millions of television subscribers throughout the United

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States. Comcast acquires content for its subscribers through negotiations with content

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providers and, in most cases, pays a license fee to the content owner on a per

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subscriber basis. But cable systems like Comcast have limited bandwidth and cannot

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carry all content offered in the marketplace. Thus, as the Federal Communications

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Commission (FCC) and numerous courts have recognized, each request for carriage

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requires Comcast to make business and editorial judgments about what programming

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will provide the most value for itself and its subscribers. See In re Herring Broad.,

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Inc., 24 F.C.C. Rcd. 12967, 12991 (2009) (noting that Comcasts practice is to carry

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unaffiliated networks if such carriages further Comcasts business interests)

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(emphasis added); Comcast Cable Commcns, LLC v. FCC, 717 F.3d 982, 993 (D.C.

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Cir. 2013) (Kavanaugh, J., concurring) (cable carrier has a First Amendment right to

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exercise editorial control over content it offers); TCR Sports Broad. Holding, LLC v.

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FCC, 679 F.3d 269, 276 (4th Cir. 2012) (to assess a carriage request, cable company

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permissibly considered programming cost, weak consumer demand, and opportunity

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cost, all of which were business justifications [that] provided a legitimate

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nondiscriminatory reason for denying [the applicant] carriage); Comcast Cable, 717

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F.3d at 985 (majority op.) (noting that cable carriers must balance the costs and

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benefits associated with a wide range of factors, and identifying salient business

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Gibson, Dunn &
Crutcher LLP

Memo of Points and Authorities ISO Motion to


Dismiss Plaintiffs Complaint by Defendants Comcast,
NAACP, NUL, Sharpton, NAN, and Baker

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considerations that would suggest it was appropriate to deny carriage).1 Over the last

several years (the period in the Complaint), Comcast has rejected hundreds of requests

for carriage.

NAAAOM, an organization that was formed only a few weeks before the

Complaint was filed in this case, ostensibly exists to secure the economic inclusion of

truly 100% African American-owned media in contracting. Compl. 34. In fact,

however, the group is just a shell organization for ESN, a self-described 100%

African American-owned media companyNAAAOM has no other members, and

no apparent function other than to pursue this litigation (and similar suits against

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AT&T and DirecTV). ESN owns seven high-definition video programming services

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that cover various subjects. ESN sought carriage on Comcasts cable systems, which

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was denied. Plaintiffs acknowledge that Comcast explained its business concerns

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about carrying ESNs channelsthough the Complaint conclusorily labels these

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fraudulent, pretextual excuses. Compl. 111; see also id. 53. Among other

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things, Comcast expressed concern that it has only limited bandwidth on which to offer

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new channels, Compl. 88, and that ESNs channels have low consumer demand,

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Compl. 89.

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The Complaint nowhere contains allegations setting forth facts that would

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negate the most plausible interpretation of these facts, to wit, that Comcast decided not

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to offer carriage to ESNs channels because it found no good business reason to do so.

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As shown by Plaintiffs own complaint against DirecTV and AT&T, which this Court

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may judicially notice, other video programming carriers also rejected ESNs carriage

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demands. See NAAAOM v. AT&T, Inc., No. 2:14-cv-09256-PJW, Dkt. 22 (C.D. Cal.).

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Plaintiffs utter failure to plead any facts negating the most natural interpretation of the

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These cases involved allegations that cable operators gave preference to content
that they owned by discriminating against unaffiliated carriage applicants, in
violation of Section 616 of the Communications Act of 1934.

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Gibson, Dunn &
Crutcher LLP

Memo of Points and Authorities ISO Motion to


Dismiss Plaintiffs Complaint by Defendants Comcast,
NAACP, NUL, Sharpton, NAN, and Baker

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events they allege should be the end of the matter under Iqbal. That conclusion should

be sealed by the fact that the alternative explanation Plaintiffs urgean outlandish

conspiracy by civil rights organizations to undermine racial progress and justice

arrives completely devoid of factual, non-conclusory support.

In the end, there is no mystery about what truly underlies Plaintiffs allegations.

Having failed to secure carriage in the marketplace under ordinary business standards,

Plaintiffs sued two sets of video programming providers that, at the time this action

was initiated, had merger transactions pending regulatory approvalComcast and

Time Warner Cable here, and DirecTV and AT&T in another case pending in this

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courthouseand claimed extravagant damages in each suit ($20 billion in this case,

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$10 billion in the DirecTV and AT&T suit). Plaintiffs detected a chance to take

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advantage of the then-pending government review of these proposed mergers, and

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hoped to gain settlement leverage for undeserved carriage and licensing fees. But

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controlling law forecloses Plaintiffs unseemly ploy. This Court lacks personal

15

jurisdiction over most Defendants, and Plaintiffs have failed to state any plausible

16

claim for relief. The Court should put a stop to Plaintiffs abuse of its process and

17

dismiss the Complaint with prejudice.

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SUMMARY OF ALLEGATIONS
The Complaint alleges that ESN is the only 100% African American-owned

20

video programming producer and multi-channel operator/owner in the United States.

21

Compl. 35. Plaintiffs allege that ESN has reached out to Comcast in an attempt to

22

license its video programming services for carriage on Comcasts cable systems.

23

Compl. 53. The Complaint alleges that Comcast met with ESN on multiple

24

occasions, and then declined to license ESNs content. Compl. 5253. Plaintiffs

25

allege that ESN has complied with each of Comcasts demands, but that Comcast

26

still refuses to carry ESNs channels based on racial animus. Compl. 53, 94.

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The Complaint also alleges that Comcast influenced Ms. Baker with an offer of

future employment during her time as an FCC Commissioner, in order to secure her

support for Comcasts acquisition of NBCUniversal in 2010. Compl. 63. During the

acquisition review process, Plaintiffs further contend that Comcast made cash

donations to NUL, the NAACP, and NAN, and agreed to give Rev. Sharpton a

television show, in exchange for entering sham diversity agreementsMOUsfor

the purpose of facilitating Comcasts racial discrimination in contracting. Compl.

70. The Complaint alleges that each of the civil rights organizations signed the

MOU knowingand agreeingthat Comcast would use the MOU[ ] to perpetuate

10

civil rights violations against 100% African American-owned media companies,

11

including [ESN.] Id. The Complaint alleges that Comcast has used the MOU[ ] to

12

create a segregated and unequal path for 100% African American-owned channels to

13

contract. Compl. 84.

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LEGAL STANDARDS
A.

Lack Of Personal Jurisdiction Rule 12(b)(2)


Where a defendant moves to dismiss a complaint for lack of personal

17

jurisdiction, the plaintiff bears the burden of demonstrating that jurisdiction is

18

appropriate. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir.

19

2004). The plaintiff must make a prima facie showing of jurisdictional facts where

20

the motion is based on written materials rather than an evidentiary hearing. Id.

21

(quoting Sher v. Johnson, 911 F.2d 1357, 1361 (9th Cir. 1990)). Although the

22

plaintiff cannot simply rest on the bare allegations of its complaint, uncontroverted

23

allegations in the complaint must be taken as true. Id. (quoting Amba Mktg. Sys., Inc.

24

v. Jobar Intl, Inc., 551 F.2d 784, 787 (9th Cir. 1977)). In ruling on a motion to

25

dismiss under Rule 12(b)(2), a court may consider evidence presented in affidavits to

26

assist it in its determination. Doe v. Unocal Corp., 248 F.3d 915, 922 (9th Cir. 2001)

27

(per curiam).

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B.

Failure To State A Claim Rule 12(b)(6)


A complaint should be dismissed under Rule 12(b)(6) when it pleads claims

against a government officer who is protected by absolute or qualified immunity. See

Stump v. Sparkman, 435 U.S. 349 (1978) (absolute immunity); Ryan v. Bilby, 764 F.2d

1325, 132728 (9th Cir. 1985) (same); Wood v. Moss, 134 S. Ct. 2056 (2014)

(qualified immunity).

Furthermore, a complaint must be dismissed under Rule 12(b)(6) unless it

contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is

plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

10

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Courts first task on a motion to

11

dismiss is to separate the complaints legal conclusionswhich do not receive a

12

presumption of truthfrom its factual allegations. Id. at 67879. Once the legal

13

conclusions are set aside, the remaining factual allegations must raise a right to relief

14

above the speculative level. Twombly, 550 U.S. at 555. If the complaint pleads facts

15

that are merely consistent with a defendants liability, it stops short of the line

16

between possibility and plausibility of entitlement to relief. Iqbal, 556 U.S. at 678

17

(quoting Twombly, 550 U.S. at 557). In other words, when there is an obvious

18

alternative explanation for [the] defendants behavior, the plaintiff has not plausibly

19

alleged a violation of the law. Eclectic Props. E., LLC v. Marcus & Millichap Co., 751

20

F.3d 990, 996 (9th Cir. 2014) (quoting Iqbal, 556 U.S. at 682).

21

The purpose of this analysis is to ensure that the factual allegations that are

22

taken as true . . . plausibly suggest an entitlement to relief, such that it is not unfair to

23

require the opposing party to be subjected to the expense of discovery and continued

24

litigation. Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).

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ARGUMENT

This suit is deeply flawed at every level: This Court lacks jurisdiction over

multiple Defendants. Ms. Baker is protected by immunity. And as to all Defendants,

the Complaint utterly fails to state a claim for relief.

A.

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This Court Lacks Personal Jurisdiction Over NUL, The NAACP, NAN,
Rev. Sharpton, And Ms. Baker
This action should be dismissed under Rule 12(b)(2) as to NUL, the NAACP,

NAN, Rev. Sharpton, and Ms. Baker because, even accepting Plaintiffs own
allegations as true, this Court cannot exercise personal jurisdiction over these out-ofstate Defendants.
Where, as here, there is no applicable federal statute governing personal
jurisdiction, the district court applies the law of the state in which the district court
sits. Schwarzenegger, 374 F.3d at 800; see also Daimler AG v. Bauman, 134 S. Ct.
746, 753 (2014) (Federal courts ordinarily follow state law in determining the bounds
of their jurisdiction over persons.). Because Californias long-arm jurisdictional
statute is coextensive with federal due process requirements, the jurisdictional analyses
under state law and federal due process are the same. Schwarzenegger, 374 F.3d at
80001. For a court to exercise personal jurisdiction over a nonresident defendant,
that defendant must have at least minimum contacts with the relevant forum such that
the exercise of jurisdiction does not offend traditional notions of fair play and
substantial justice. Id. at 801 (quoting Intl Shoe Co. v. Washington, 326 U.S. 310,
316 (1945)); see also Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct.
2846, 2853 (2011) (The Due Process Clause of the Fourteenth Amendment sets the
outer boundaries of a state tribunals authority to proceed against a defendant. . . . The
canonical opinion in this area remains International Shoe . . . .) (citation omitted).
[T]here are two forms that personal jurisdiction may take: general and
specific. Picot v. Weston, 780 F.3d 1206, 1211 (9th Cir. 2015). General jurisdiction
permits a court to assert jurisdiction over a defendant based on a forum connection
Memo of Points and Authorities ISO Motion to
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unrelated to the underlying suit (e.g., domicile). Walden v. Fiore, 134 S. Ct. 1115,

1121 n.6 (2014). Because the Supreme Court has declined to stretch general

jurisdiction beyond limits traditionally recognized, it has come to occupy a less

dominant place in the contemporary scheme. Daimler, 134 S. Ct. at 75758. By

contrast, specific jurisdiction depends on an affiliatio[n] between the forum and the

underlying controversy (i.e., an activity or an occurrence that takes place in the

forum State and is therefore subject to the States regulation). Walden, 134 S. Ct. at

1121 n.6 (quoting Goodyear, 131 S. Ct. at 2851). For a State to exercise jurisdiction

consistent with due process, the defendants suit-related conduct must create a

10

substantial connection with the forum State. Id. at 1121. [T]he relationship must

11

arise out of contacts that the defendant himself creates with the forum State. Id. at

12

1122 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)).

13

Plaintiffs admit that neither Rev. Sharpton nor Ms. Baker is a resident of

14

California, and that NUL, the NAACP, and NAN are not incorporated and do not have

15

their principal place of business in California. Accordingly, there is no basis for the

16

exercise of general jurisdiction. Plaintiffs have also failed to allege that these

17

Defendants did anything that could give rise to specific jurisdiction in this case, as

18

none of their alleged conduct occurred in California. Plaintiffs presence in California

19

is insufficient, without more, to create personal jurisdiction.

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1.

Plaintiffs Allegations And Defendants Evidence Demonstrate A


Lack Of Sufficient California Contacts

Plaintiffs have the burden to make a prima facie showing of jurisdictional


facts, Picot, 780 F.3d at 1211, but they have done the exact opposite by themselves
alleging facts that reveal a lack of any jurisdictionally relevant connections between
California and NUL, the NAACP, NAN, Rev. Sharpton or Ms. Baker. The
impropriety of exercising personal jurisdiction is plain from the face of Plaintiffs
Complaint. It is further confirmed by the declarations from officers of NUL, the
NAACP, and NAN, which this Court can consider in deciding this motion. See Doe v.
Memo of Points and Authorities ISO Motion to
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NAACP, NUL, Sharpton, NAN, and Baker

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Unocal Corp., 248 F.3d 915, 922 (9th Cir. 2001) (per curiam). As summarized below

for each of these Defendants, the relevant allegations and evidence demonstrate a clear

lack of any sufficient California contacts.

National Urban League. Plaintiffs accurately allege that NUL is a New York

not-for-profit corporation, with its principal place of business in New York, New

York. Compl. 43; Morial Decl. 34. While Plaintiffs also allege that NUL has

a regional affiliate that has an office and is registered to do business and operates in

Los Angeles, California, Compl. 43, this affiliate (like the other NUL affiliates in

California) is entirely independent from NUL. See Morial Decl. 67. As

10

established by NULs President and Chief Executive Officer, Marc Morial, these

11

affiliates are completely independent and separate entities from NUL, are

12

separately incorporated and are operated independently from NUL, and [e]ach

13

affiliate operates pursuant to an Affiliate Agreement that provides that the affiliate is

14

not an agent of NUL. Id. 6. Mr. Morials declaration also establishes that (1) NUL

15

does not have any offices or employees located in California, (2) NUL does not own

16

or lease any real estate in California, (3) NUL does not have any telephone listings

17

in California, (4) NUL does not manufacture or distribute products in California,

18

and (5) NUL does not now have, and has not ever had, any bank accounts or other

19

assets located in California. Id. 5.

20

Aside from their incomplete and cursory allegation regarding NULs affiliate in

21

Los Angeles, Plaintiffs Complaint is silent as to any other connection NUL has with

22

California (let alone California connections related to Plaintiffs claims). The lack of

23

such allegations is unsurprising; as Mr. Morial explains in his declaration, neither he

24

nor any NUL employee has ever attended a meeting in California or participated in

25

any telephone conference that originated in California with any Comcast or NBC

26

Universal representatives regarding any subject matter, [n]o NUL employee has

27

attended or participated in any discussions or meetings, either inside California or

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outside California, that may have occurred between Comcast and Entertainment

Studios Networks, Inc., and Mr. Morial has not participated in any meeting or

telephone conversation with any Comcast or NBC Universal employee, inside

California or outside California, concerning programming. Morial Decl. 1112.

National Association for the Advancement of Colored People. Plaintiffs

accurately allege that the NAACP is a New York not-for-profit corporation, with

national headquarters in Baltimore, Maryland. Compl. 42; Brooks Decl. 34.

The NAACPs national headquarters in Baltimore is also its principal place of

business, as all of the NAACPs executive staff (including its President and CEO,

10

Cornell William Brooks, and its Chief Operating Officer, Claudia A. Withers) are

11

based in Baltimore. Brooks Decl. 45. The NAACP does have an office in Los

12

Angeles, California, known as the Hollywood Bureau, but none of the NAACPs

13

executive staff are based in that office. Compl. 42; Brooks Decl. 5.

14

Aside from noting the existence of this regional office, Plaintiffs Complaint

15

contains no allegations regarding any other connection between California and the

16

NAACP, let alone specific California connections relevant to Plaintiffs claims. Mr.

17

Brooks has also confirmed that, to the best of his knowledge, no employee of the

18

NAACP has attended or participated in any discussions or meetings, either inside

19

California or outside California, that may have occurred between Comcast and

20

Entertainment Studios Networks, Inc. Brooks Decl. 6.

21

National Action Network. Plaintiffs accurately allege that NAN is a New

22

York not-for-profit corporation, with its principal place of business in Harlem, New

23

York. Compl. 45; Ingram Decl. 45. Plaintiffs also allege that NAN has a

24

regional chapter that has an office, is registered to do business and operates in Los

25

Angeles, California, Compl. 45, but this chapter and NANs Oakland, California

26

chapter operate independently from NAN, and have their own independent executive

27

committees. Ingram Decl. 6. NAN has only a single employee in California. Id.

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Moreover, [n]either NANs Founder and President (Reverend Al Sharpton) nor its

National Executive Director, Janaye Ingram, are based in any California office. Id.

Rather, they work at NANs principal place of business in New York, New York and

in its bureau office in Washington, D.C., respectively. Id.

As with NUL and the NAACP, Plaintiffs Complaint is silent regarding any

other California connections or any link between their allegations and any NAN

conduct in California. That is because there are no such connections; to the

knowledge and information of Janaye Ingram, NANs National Executive Director,

[n]o NAN employee . . . has attended or participated in any discussions or meetings,

10

either inside California or outside California, that may have occurred between Comcast

11

and Entertainment Studios Networks, Inc. and [n]o California Chapter officer,

12

member or [NANs] employee based in California . . . has participated in any of the

13

discussions or meetings concerning the drafting, negotiating or signing of the

14

Comcast MOU. Id. 7.

15

Rev. Al Sharpton. Plaintiffs accurately allege that Rev. Sharpton is an

16

individual residing in New York, New York. Compl. 44. Plaintiffs do not allege

17

any connections between California and Rev. Sharpton.

18

Ms. Meredith Attwell Baker. Plaintiffs allege that Ms. Baker is an individual

19

residing in Washington, D.C. Compl. 46. In fact, Ms. Baker actually resides in

20

Virginia. Baker Decl. 2. Plaintiffs do not allege any connections between California

21

and Ms. Baker.

22

2.

23

This Court cannot exercise general jurisdiction over NUL, the NAACP, NAN,

24

There Is No Basis For General Jurisdiction

Rev. Sharpton, or Ms. Baker.

25

For an individual, the paradigm forum for the exercise of general jurisdiction is

26

the individuals domicile[.] Goodyear, 131 S. Ct. at 2853. As noted above, Plaintiffs

27

themselves allege that the two individual Defendants here, Rev. Sharpton and

28
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Ms. Baker, reside in New York and Washington, D.C., respectively. Compl. 44, 46.

(Ms. Baker actually resides in Virginia, Baker Decl. 2, although that difference does

not change the jurisdictional analysis.) Thus, given that neither Rev. Sharpton nor

Ms. Baker is domiciled in California, this Court cannot exercise general jurisdiction

over them. See Goodyear, 131 S. Ct. at 2853.

With respect to a corporation, the place of incorporation and principal place of

business are paradig[m] . . . bases for general jurisdiction. Daimler, 134 S. Ct. at

760 (quoting Goodyear, 131 S. Ct. at 285354) (alteration and ellipsis in original).

After Daimler, [o]nly in an exceptional case will general jurisdiction be available

10

anywhere else. Martinez v. Aero Caribbean, 764 F.3d 1062, 1070 (9th Cir. 2014)

11

(quoting Daimler, 134 S. Ct. at 761 n.19). Yet Plaintiffs correctly allege that NUL, the

12

NAACP, and NAN are all New York not-for-profit corporations, that the NAACPs

13

national headquarters (which is its principal place of business) is in Maryland, and that

14

the principal places of business of both NUL and NAN are in New York. Compl.

15

4243, 45; Morial Decl. 34; Brooks Decl. 34; Ingram Decl. 45. Thus,

16

none of the paradigm fora for general jurisdictiona corporations place of

17

incorporation and principal place of businesspoints to California for NUL, the

18

NAACP, and NAN. Martinez, 764 F.3d at 1070 (quoting Daimler, 134 S. Ct. at 760).

19

Plaintiffs allege that NUL, the NAACP, and NAN have regional affiliates,

20

branches, and/or chapters that operate[ ] in California, but even accepting those

21

allegations as true, they are not enough under Daimler to justify the exercise of

22

jurisdiction. Compl. 4243, 45. The Supreme Court in Daimler specifically

23

refused to look beyond the exemplar bases Goodyear identified, and approve the

24

exercise of general jurisdiction in every State in which a corporation engages in a

25

substantial, continuous, and systematic course of business. Daimler, 134 S. Ct. 760

26

61. Daimler further rejected the proposition that a corporation is at home

27

everywhere it operates, reasoning that [a] corporation that operates in many places

28
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can scarcely be deemed at home in all of them. Id. at 762 n.20. These purported

California operations are simply irrelevant to the general jurisdiction inquiry after

Daimler.

Moreover, even if mere operations in California could serve as a hook for

general jurisdiction (they cannot), as a factual matter these California operations

cannot be attributed to either NUL or NAN. As explained above, the NUL affiliates in

California are entirely independent entities, and are not NULs agents. See Morial

Decl. 67. Similarly, the NAN chapter in Los Angeles operates independently and

NAN has only a single employee in California. See Ingram Decl. 6.

10
11

Thus, based on the facts alleged and the evidence in the record, there is no basis
for general jurisdiction over NUL, the NAACP, NAN, Rev. Sharpton, or Ms. Baker.

12

3.

13

This Court also cannot exercise specific jurisdiction over NUL, the NAACP,

14
15

There Is No Basis For Specific Jurisdiction

NAN, Rev. Sharpton, or Ms. Baker.


A three-part test is generally used to assess whether a defendant has

16

sufficient contacts with the forum state to be subject to specific personal jurisdiction:

17

(1) The non-resident defendant must purposefully direct his activities or consummate

18

some transaction with the forum or resident thereof; or perform some act by which he

19

purposefully avails himself of the privilege of conducting activities in the forum,

20

thereby invoking the benefits and protections of its laws; (2) the claim must be one

21

which arises out of or relates to the defendants forum-related activities; and (3) the

22

exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must

23

be reasonable. Picot, 780 F.3d at 1211.

24

With respect to claims sounding in tort (like those here), the Ninth Circuit has

25

utilized a three-part effects test derived from Calder v. Jones, 465 U.S. 783 (1984).

26

Picot, 780 F.3d at 121314. Under this test, a defendant purposefully directed his

27

activities at the forum if he: (1) committed an intentional act, (2) expressly aimed at

28
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the forum state, (3) causing harm that the defendant knows is likely to be suffered in

the forum state. Id. (quoting Schwarzenegger, 374 F.3d at 803). The Ninth Circuit

has, however, recognized the limitations on the Calder effects test after the Supreme

Courts decision in Walden v. Fiore, 134 S. Ct. 1115 (2014). See Picot, 780 F.3d at

121314. After Walden, [i]n applying this test, [courts] must look[ ] to the

defendants contacts with the forum State itself, not the defendants contacts with

persons who reside there. Id. at 1214 (quoting Walden, 134 S. Ct. at 1122) (third

alteration in original). Moreover, a mere injury to a forum resident is not a sufficient

connection to the forum and is jurisdictionally relevant only insofar as it shows that

10

the defendant has formed a contact with the forum State. Id. (quoting Walden, 134

11

S. Ct. at 1125). In short, the personal jurisdiction analysis must focus on the

12

defendants contacts with the forum state, not the defendants contacts with a resident

13

of the forum. Id.

14

Although Plaintiffs allege, in conclusory fashion, that NUL, the NAACP, NAN,

15

Rev. Sharpton, and Ms. Baker engaged in intentional conduct, none of this supposed

16

conduct is alleged to have any connection to California. Plaintiffs do not allege that

17

these Defendants did anything whatsoever in California, such as entering California,

18

contacting any person in California, or otherwise reaching out to California. Id. at

19

1215. For example, Plaintiffs do not allege that any of the negotiations regarding the

20

MOU took place in California, or that anything Ms. Baker allegedly did with respect to

21

the FCCs review of Comcasts acquisition of NBCUniversal occurred in California.

22

Moreover, as noted above, the declarations from officers of NUL, the NAACP, and

23

NAN confirm the lack of any acts in California related to Plaintiffs claims. See

24

Morial Decl. 1012; Brooks Decl. 6; Ingram Decl. 78.

25

Indeed, the only link between California and these Defendants alleged conduct

26

is the fact that Plaintiffs reside in California, which is not sufficient to give rise to

27

specific jurisdiction. See Walden, 134 S. Ct. at 1125 (Calder made clear that mere

28
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injury to a forum resident is not a sufficient connection to the forum.). Nothing about

the fact that Plaintiffs were allegedly injured in California demonstrates that NUL, the

NAACP, NAN, Rev. Sharpton, or Ms. Baker formed a contact with the forum State,

as there was nothing to connect their alleged conduct to California. Id. Rather,

Plaintiffs alleged injury is entirely personal to [them] and would follow [them] where

[they] might choose to live or travel, and thus it is not tethered to California in any

meaningful way. Picot, 780 F.3d at 1215. In the absence of any allegations that the

alleged conduct of NUL, the NAACP, NAN, Rev. Sharpton, or Ms. Baker had any

connection to California beyond the happenstance of Plaintiffs residency here,

10

Plaintiffs have failed to make a prima facie showing of specific personal jurisdiction.

11

Id.

12

Nor would it be appropriate to exercise personal jurisdiction over NUL, the

13

NAACP, NAN, Rev. Sharpton, or Ms. Baker on the basis of Comcasts or Time

14

Warner Cables conduct, even against the background of Plaintiffs conspiracy

15

allegations. Doing so would violate the Supreme Courts clear command in Walden

16

that a defendants relationship with a . . . third party, standing alone, is an insufficient

17

basis for jurisdiction. 134 S. Ct. at 1123. Moreover, California does not recognize

18

conspiracy as a basis for acquiring personal jurisdiction over a party. Mansour v.

19

Superior Court, 38 Cal. App. 4th 1750, 1760 (1995); see also, e.g., EcoDisc Tech. AG

20

v. DVD Format/Logo Licensing Corp., 711 F. Supp. 2d 1074, 1089 (C.D. Cal. 2010).

21

Accordingly, there is no basis for the exercise of specific jurisdiction over NUL,

22

the NAACP, NAN, Rev. Sharpton, or Ms. Baker.

23

B.

24

Ms. Baker Is Immune From Plaintiffs Claims


Where a plaintiff pleads allegations against a government official (such as

25

Ms. Baker, during the time period covered by the Complaint) in her capacity as an

26

adjudicative officer, the complaint should be dismissed under Federal Rule of Civil

27

Procedure 12(b)(6) on the ground of absolute judicial immunity. See Stump v.

28
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Sparkman, 435 U.S. 349 (1978); Ryan v. Bilby, 764 F.2d 1325, 132728 (9th Cir.

1985). Alternatively, a complaint should be dismissed under Rule 12(b)(6) on the

basis of qualified immunity where it pleads claims against a government officer but

does not allege a violation of any clearly established law. See Wood v. Moss, 134 S.

Ct. 2056 (2014). Here, the Complaint includes only a few scant references to

Ms. Baker, all of which concern her actions in an adjudicatory role as a Commissioner

on the Federal Communications Commission, and none of which allege a violation of

clearly established law. As a result, Ms. Baker is protected by immunity.

The entirety of Plaintiffs allegations against Ms. Baker is that, during her time

10

as an FCC Commissioner, Comcast influenced her in order to obtain her vote to

11

approve Comcasts acquisition of NBCUniversal in January 2011. Compl. 27.2

12

Ms. Baker was one of four (out of five) commissioners to vote in favor of the

13

acquisition. When she left the FCC months later, Plaintiffs allege that Comcast

14

rewarded her with an executive position and a substantially higher salary. Compl.

15

63; see also Compl. 122 (alleging that Ms. Baker and other Defendants acted as

16

co-conspirators by accepting cash payments, jobs and other favors from Comcast in

17

exchange for their public support and approval of Comcasts racist policies and

18

practices in contracting for channel carriage).

19

Plaintiffs allegations fail for a multitude of reasons. First, Plaintiffs have not

20

alleged any facts supporting their suggestion that Ms. Baker engaged in any

21

impropriety. That Ms. Baker took a private-sector job following her government

22

service does not suggest impropriety in any form, and it certainly has nothing to do

23

with racial discrimination in program carriage in violation of 42 U.S.C. 1981.

24
25
26
27

The FCC reviewed that transaction because it involved the transfer of broadcast
licenses and authorizations under the Communications Act, and the Act requires the
Commission to ensure that any transfer of those licenses would serve the public
interest, convenience, and necessity. 47 U.S.C. 310(d).

28
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Second, Plaintiffs wrongly claim that Ms. Baker was one of three FCC Commissioners

to vote in favor of the Comcast-NBCUniversal acquisition, see Compl. 63, when in

fact four Commissioners voted in favor, which means that the transaction would have

been approved regardless of Ms. Bakers vote. See FCC, Memorandum Opinion and

Order, In re Applications of Comcast Corp., Gen. Electric Co. and NBCUniversal,

Inc., MB Docket No. 10-56 (Jan. 18, 2011), available at http://transition.fcc.gov/FCC-

11-4.pdf.3 In any event, that Ms. Baker voted to approve a corporate acquisition has

nothing at all to do with racial discrimination.

Moreover, Plaintiffs may not sue Ms. Baker for her review of the Comcast-

10

NBCUniversal transaction. Judicial officers are protected by absolute immunity, and

11

the Supreme Court has held that adjudication within a federal administrative agency

12

shares enough of the characteristics of the judicial process that those who participate in

13

such adjudication should also be immune from suits for damages. Butz v. Economou,

14

438 U.S. 478, 51213 (1978). Butz arose in the context of a formal adjudication by an

15

administrative law judge, whereas the FCC reviews transactions through an informal

16

adjudication. See 5 U.S.C. 551(7) (defining adjudications to include an agency

17

process for the formulation of an order); id. 551(6) (defining order to include

18

dispositions of licensing matters).4 But judicial immunity is still warranted for the

19
20

As explained in Defendants concurrently filed request for judicial notice, the Court
may take judicial notice of this and the other government reports cited herein under
Federal Rule of Evidence 201(b)(1), including in deciding a Rule 12(b)(6) motion
to dismiss, because their accuracy cannot reasonably be questioned. See Lee v. City
of Los Angeles, 250 F.3d 668, 68889 (9th Cir. 2001).

Because the Communications Act does not require the FCC to conduct its review of
license applications on the record after opportunity for an agency hearing, the
proceeding is an informal adjudication rather than a formal adjudication. See 5
U.S.C. 554(a); 47 U.S.C. 309(a); ITT World Commcns, Inc. v. FCC, 595 F.2d
897, 901 (2d Cir. 1979) (holding that FCC licensing applications under Section 214
of the Communications Act are not subject to evidentiary hearing requirements).

21
22
23
24
25
26
27
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FCCs informal adjudication here because the conflicts that FCC Commissioners

resolve are every bit as fractious as those which come before a court. Butz, 438 U.S.

at 513. An acquisition review proceeding before the FCC touches the interests of

numerous partiesincluding Plaintiff ESN, who publicly opposed Comcasts

acquisition of NBCUniversaland when that is so, the disappointment occasioned

by an adverse decision[ ] often finds vent in imputations of malice. Id. (quoting

Bradley v. Fisher, 13 Wall. 335, 348 (1872)) (alteration omitted).

Under the reasoning of Butz, absolute immunity applies to the FCCs review and

approval of Comcasts acquisition of NBCUniversal because the Commissioners role

10

is functionally comparable to that of the judge. Id. In particular, the FCCs review

11

process is structured to contain many of the same safeguards that protect the integrity

12

of a traditional juridical process. Id. at 51314. First, the proceedings were conducted

13

in the open, on a public record. Even though the FCC was not required to do so by the

14

Administrative Procedure Act, because Comcasts acquisition of NBCUniversal was a

15

significant transaction, the Commission followed its usual practice of publicly noticing

16

the application for license transfer and setting a schedule for public input. See FCC

17

Release, Commission Seeks Comment On Applications of Comcast Corporation,

18

General Electric Company, and NBC Universal, Inc., to Assign and Transfer Control

19

of FCC Licenses (Mar. 18, 2010), available at https://apps.fcc.gov/edocs_public/

20

attachmatch/DA-10-457A1.pdf. Any interested party was given the opportunity to

21

comment on the proposed acquisition. Second, the Commission has rules to protect

22

the integrity of the proceeding. The review of Comcasts acquisition of NBCUniversal

23

was designated by the Commission as a permit but disclose proceeding. Id. at 4.

24

Under the Commissions rules for that type of proceeding, disclosure on the record is

25

required for any communication with the Commissioners or their staff, whether written

26

or oral, that is designed to affect the outcome of the proceeding. See 47 C.F.R.

27

1.1206; cf. Butz, 438 U.S. at 514 (noting that agency rules prohibited ex parte contact

28
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regarding a fact at issue in the hearing). Finally, after reviewing the relevant evidence,

the Commission produced a written decision that explained its reasoning. See FCC,

Memorandum Opinion and Order, In re Applications of Comcast Corp., Gen. Electric

Co. and NBCUniversal, Inc., MB Docket No. 10-56 (Jan. 18, 2011), available at

http://transition.fcc.gov/FCC-11-4.pdf.

Plaintiffs here have not pled a shred of evidence to support their defamatory

allegation that Ms. Baker had improper contact with any party during her review of

Comcasts acquisition of NBCUniversal. And just as the judges of this Court would be

absolutely immune from a lawsuit alleging corruption in their decisions, Ms. Baker is

10
11

immune from this suit.


Even if Ms. Baker is not entitled to absolute immunity for her actions as an FCC

12

Commissioner, the case should still be dismissed on the basis of qualified immunity.

13

That doctrine protects government officials from liability for civil damages unless a

14

plaintiff pleads facts showing a clearly established violation of the law. Wood, 134

15

S. Ct. at 206667 (quoting Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011)). The

16

clearly established law must not be defined at a high level of generality. al-Kidd,

17

131 S. Ct. at 2084; see also Anderson v. Creighton, 483 U.S. 635, 63940 (1987)

18

(plaintiffs may not plead around qualified immunity simply by alleging a violation of

19

extremely abstract rights; rather, [t]he contours of the right must be sufficiently clear

20

that a reasonable official would understand that what he is doing violates that right).

21

And even where the law is clearly established that the government may not engage in

22

intentional discrimination, under Iqbal, a plaintiff cannot survive a motion to dismiss

23

by merely alleging that intention. See Wood, 134 S. Ct. at 206669 (affirming

24

dismissal of a First Amendment complaint because it was not sufficient for the

25

plaintiffs to merely allege intentional viewpoint discrimination).

26
27

Here, Plaintiffs plead no facts to show that Ms. Baker violated any law, much
less a clearly established violation. The Complaints sole allegation is that Ms. Baker,

28
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along with other FCC Commissioners, voted in favor of Comcasts acquisition of

NBCUniversal. But that proceeding was about a corporate acquisition; it had nothing

to do with ESNs carriage request, or carriage requests in general. Nothing about

Plaintiffs vague, scattered allegations against Ms. Baker has a connection to the

Complaints allegation of racial discrimination in violation of 1981. The MOU gets

Plaintiffs nowhere, as no reasonable person could see in the MOU anything other than

an intent to advantage minority-owned programming networks (and other businesses),

not to disadvantage them. Plaintiffs do not plead any facts to show or even suggest

that Ms. Baker had any reason to believe the MOU was not what it plainly is: an

10

additional process by which minority-owned channels might have an opportunity to

11

pursue carriage with Comcast, notwithstanding bandwidth constraints.

12

In short, Plaintiffs have pled no facts at all to support their conclusory allegation

13

that Ms. Baker intended, condoned, or even knew of any alleged discrimination in

14

Comcasts channel carriage practices at the time of Comcasts acquisition of

15

NBCUniversal. Even if they could allege those facts, there is no clearly established

16

law holding that a government regulator could be in violation of 42 U.S.C. 1985(3)

17

by exercising an adjudicatory role, even if the regulator somehow knew that the parties

18

had an intent to discriminate on the basis of race. The Complaints inclusion of an

19

allegation that Ms. Baker left her government position for employment in the private

20

sector is entirely gratuitous and has nothing to do with this case.

21

Rather than pursue any genuine relief, Plaintiffs hope to use this Court to

22

impugn the integrity of a former public servant. They may not do so. All claims

23

against Ms. Baker must be dismissed on the basis of immunity.

24

C.

25
26
27
28
Gibson, Dunn &
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Plaintiffs Have Alleged No Facts To Plausibly Show That Comcast


Discriminated Based On Race
Plaintiffs allege that Comcast has discriminated, and is discriminating, against

[ESN] on account of race, in violation of . . . 42 U.S.C. 1981. Compl. 18.


Section 1981(a) provides that [a]ll persons within the jurisdiction of the United States
Memo of Points and Authorities ISO Motion to
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shall have the same right in every State and Territory to make and enforce contracts

. . . as is enjoyed by white citizens[.] The statute reaches only purposeful

discrimination. Gen. Building Contractors Assn, Inc. v. Pennsylvania, 458 U.S. 375,

389 (1982); see also Gay v. Waiters & Dairy Lunchmens Union, Local No. 30, 694

F.2d 531, 536 (9th Cir. 1982). As a result, a section 1981 plaintiff cannot state a claim

by alleging that the defendant uses a policy that has a disparate racial impact. General

Building Contractors, 458 U.S. at 390. Instead, the plaintiff must plead factual

allegations that are sufficient to plausibly suggest [the defendants] discriminatory

state of mind. Aschroft v. Iqbal, 556 U.S. 662, 683 (2009).

10

This case bears a striking similarity to Iqbal. In each case, the plaintiff pled that

11

the defendants acted with the deliberate intent to discriminate. Compare Compl. 14

12

(Comcast is intentionally treating 100% African-Americanowned media differently

13

on account of race.), with Iqbal, 556 U.S. at 669 ([T]he complaint posits that the

14

defendants singled out the plaintiff solely on account of his religious, race, and/or

15

national origin) (alteration omitted). And in each case, the complaint failed for the

16

same reason: With the conclusory assertions set aside, the few factual allegations

17

against the defendants fail to exclude an obvious, non-discriminatory purpose. See

18

Iqbal, 556 U.S. at 682.

19

The plaintiff in Iqbal had been arrested following the September 11, 2001 terror

20

attacks and detained in federal custody. Id. at 666. He alleged that the former

21

Attorney General of the United States (John Ashcroft) and Director of the Federal

22

Bureau of Investigation (Robert Mueller) had violated the Constitution by

23

discriminating against him on the basis of race, religion, or national origin. See Bivens

24

v. Six Unknown Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). The

25

Supreme Court held that the complaint failed to state a claim for relief. The Court

26

began by identifying the conclusory assertions in the complaint that were not entitled

27

to be presumed true. Iqbal, 556 U.S. at 680. Legal conclusions include [t]hreadbare

28
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recitals of the elements of [the] cause of action, supported by mere conclusory

statements. Id. at 678. In Iqbal, these included the plaintiffs allegation that the

defendants each knew of, condoned, and willfully and maliciously agreed to subject

[the plaintiff] to harsh conditions of confinement as a matter of policy, solely on

account of his religion, race, and/or national origin and for no legitimate penological

interest. Id. at 68081 (alteration omitted).

With the conclusory assertions set aside, the Court next considered whether the

factual allegations in the complaint stated a plausible claim for relief. A claim has

facial plausibility when it pleads factual content that allows the court to draw the

10

reasonable inference that the defendant is liable for the misconduct alleged. Id. at 678

11

(citing Twombly, 550 U.S. at 556). In Iqbal, the remaining factual allegations were

12

that the defendants had arrested and detained thousands of Arab Muslim men . . . as

13

part of [their] investigation of the events of September 11, and had approved a

14

policy of holding detainees in highly restrictive conditions of confinement until they

15

were cleared by the FBI. Id. at 681 (ellipsis in original; internal quotation marks

16

omitted). But the Supreme Court explained that if a complaint pleads facts that are

17

merely consistent with a defendants liability, it stops short of the line between

18

possibility and plausibility of entitlement to relief. Id. at 678 (quoting Twombly, 550

19

U.S. at 557). In other words, as the Ninth Circuit has elaborated, when there is an

20

obvious alternative explanation for [the] defendants behavior, the plaintiff has not

21

plausibly alleged a violation of the law. Eclectic Props. E., LLC v. Marcus &

22

Millichap Co., 751 F.3d 990, 996 (9th Cir. 2014) (quoting Iqbal, 556 U.S. at 682); see

23

also In re Century Aluminum Co. Sec. Litig., 729 F.3d 1104, 1108 (9th Cir. 2013)

24

(Iqbal requires plaintiffs to allege facts tending to exclude the possibility that the

25

alternative explanation is true, in order to render plaintiffs allegations plausible)

26

(citation omitted). In Iqbal, the facts alleged did not plausibly establish purposeful

27

discrimination given an obvious alternative explanation: That the defendants acted

28
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with a nondiscriminatory intent to securely detain persons who had potential

connections to the terror attacks, a policy that the Court found would naturally

produce a disparate, incidental impact on Arab Muslims. 556 U.S. at 682. The

Court noted that determining whether a complaint states a plausible claim for relief

is a context-specific task that requires the reviewing court to draw on its judicial

experience and common sense. Id. at 679.

Plaintiffs here attempt the same strategy that doomed the plaintiff in Iqbal. The

Complaint merely recites the elements of a 1981 cause of action through conclusory

assertions that Comcast refused carriage on account of ESNs racial identity and gave

10

preferential treatment to similarly situated applicants for carriage from other races.

11

The Complaint then offers only a few factual allegations, none of which shows

12

discrimination, and none of which excludes the possibility of an alternative

13

explanation that is obvious from the Complaint itself: As a business matter, Comcast

14

did not think that ESNs channels had sufficient consumer interest or demand to

15

warrant the costs that those channels would impose on Comcast.

16
17

In short, Plaintiffs Complaint suffers precisely the same defects as the


complaint in Iqbal, and it should similarly be dismissed.

18

1.

19

At Iqbals first step, this Court identifies those portions of the Complaint that are

The Complaints Conclusory Assertions Must Be Set Aside

20

not entitled to be presumed true: mere recitations of the elements of the cause of

21

action, or conclusory assertions. 556 U.S. at 67879. Here, that category comprises

22

most of the paragraphs in the Complaint. In particular, Plaintiffs cannot survive

23

dismissal by simply asserting that Comcast declined to carry ESNs channels because

24

of a discriminatory intent. E.g., Compl. 14. That is precisely the sort of conclusory

25

assertion that the Supreme Court held was not sufficient in Iqbal. 556 U.S. at 68081.

26
27

Plaintiffs are also not entitled to a presumption of truth for their assertion that
any of their channels, including Justice Central, have been proven successful or in

28
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high-demand. Compl. 39. Being qualified to license its content to Comcast is an

element of ESNs claim, so ESN cannot survive a motion to dismiss by merely

alleging that it is qualified. See Amobi v. Ariz. Bd. of Regents, No. 10-1561, 2011 WL

308466, at *4 (D. Ariz. Jan. 28, 2011) (dismissing a discrimination case in the

analogous Title VII context because the plaintiffs allegation that she was and is fully

qualified for promotion and tenure is conclusory and not entitled to be assumed true).

Similarly, Plaintiffs do nothing more than recite the elements of a 1981 cause

of action with their assertions that Comcast refuses to treat 100% African American-

owned media companies, including [ESN], the same as similarly-situated white-owned

10

media companies, Compl. 12, or that Comcast has entered into carriage agreements

11

with other, similarly situated white-owned channels, Compl. 88. The Complaint

12

provides no details regarding how Comcast refuses to treat 100% African American

13

owned companies the same as other similarly situated companies. Nor does the

14

Complaint provide any examples of these other similarly situated channels, or any

15

details about them.

16

Even Plaintiffs acknowledge that, to have any relevance as comparators, the

17

other channels would need to be similarly situated. And in terms of whether

18

television channels are similarly situated, the Ninth Circuit has instructed that a court

19

should consider a number of factors, including whether the networks show similar

20

programming, whether they target broader or narrower audiences, and whether they

21

have a different look and feel. Herring Broad., Inc. v. FCC, 515 F. Appx 655, 656

22

57 (9th Cir. 2013). Other relevant factors involved in Comcasts carriage decisions

23

include the amount of the licensing fees (which is generally the most important

24

factor); the nature of the programming content involved; the intensity and size of the

25

fan base for that content; the level of service sought by the network; the networks

26

carriage on other [cable systems]; the extent of most favored nation protection

27

provided; the term of the contract sought; and a variety of other operational issues.

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Comcast Cable Commcns, LLC v. FCC, 717 F.3d 982, 985 (D.C. Cir. 2013)

(alteration and footnotes omitted). This Court can rely on its judicial experience and

common sense, Iqbal, 556 U.S. at 679, to know that, for example, the extremely

popular SEC Networkwhose content was recently added to some of Comcasts cable

systems and includes exclusive access to high-demand college football and basketball

games from prominent teamsis not similarly situated (in consumer demand, content,

target audience, or quality) to ESNs request for carriage of its Justice Central

channel. Yet Plaintiffs plead no facts at all about what made these supposedly

comparable, unidentified channels similarly situated to its own channels.

10

Nor can Plaintiffs argue that, at the pleading stage, they need not supply details

11

for their supposed comparators. Courts routinely dismiss discrimination cases where

12

the plaintiff alleges nothing more than that some unidentified person of another race or

13

gender was treated better. For example, in Ghosh v. Uniti Bank, 566 F. Appx 596,

14

597 (9th Cir. 2014), the Ninth Circuit affirmed the dismissal of a claim under 42

15

U.S.C. 1982a companion statute to 1981 for property rightsbecause the

16

plaintiff failed to allege any facts that support its contention that [the defendant]

17

treated [the plaintiff] differently than similarly-situated mortgagees on account of [the

18

plaintiffs] racial identity. (Emphasis added.) Similarly, the Sixth Circuit affirmed

19

dismissal of a 1981 complaint in Han v. University of Dayton, 541 F. Appx 622, 627

20

(6th Cir. 2013), cert. denied 131 S. Ct. 2699 (2014), where the plaintiffs complaint

21

had alleged that he was treated less-favorably than non-Asian-American employees

22

and was treated less-favorably than other similarly-situated female employees, but he

23

ha[d] offered no specifics regarding who those employees were or how they were

24

treated differently. (Emphasis added.) District courts in this Circuit have also

25

dismissed race discrimination claims brought under Title VII, an analogue to 1981,

26

where the plaintiff alleged that persons of another class received more favorable

27

treatment, but failed to allege any facts about what made those persons similarly

28
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situated. See Johnson v. Sun Cmty. Fed. Credit Union, No. 11-2112, 2012 WL

1340434, at *4 (S.D. Cal. Apr. 18, 2012) (dismissing race discrimination claims under

Title VII because the plaintiff offer[ed] no evidence that non-black employees

similarly situated . . . were treated more favorably) (emphasis added); Hogan v.

Anasazi Found., No. 09-2379, 2010 WL 3724751, at *12 (D. Ariz. Sept. 17, 2010)

(dismissing gender discrimination claims under Title VII where the complaint alleged

that similarly situated male applicants were treated more favorably, but provided no

factual details).

The Complaint is also littered with various paragraphs designed to cast

10

aspersions on the Defendants, but which have nothing at all to do with race

11

discrimination in the carriage of video programming. E.g., Compl. 29 (alleging that

12

Comcast violated the antitrust laws in connection with its then pending merger with

13

Time Warner Cable); 68 (alleging that Mr. Sharpton specializes in shakedowns of

14

corporations). These allegations are irrelevant, do nothing to satisfy Plaintiffs

15

pleading burden, and should be ignored by the Court.

16

2.

17

Once the Court has set aside the parts of the Complaint that are either

18
19
20

conclusory or irrelevant, none of Plaintiffs other allegations plausibly shows racial


discrimination in channel carriage.
Because Plaintiffs are unable to come up with any evidence to rebut Comcasts

21
22
23
24
25
26
27

The Memorandum Of Understanding, On Its Face, Undermines


Plaintiffs Allegation Of Intentional Race Discrimination

business judgment for declining to license ESNs channels, they attempt to


manufacture evidence of race discrimination in the MOU that Comcast entered
alongside several prominent civil rights groups.5 The Complaints various allegations
5

Comcast also entered other MOUs intending to benefit Hispanic Americans and
Asian Americans. The Complaint refers to MOUs in the plural, but the
allegations in the Complaint relate solely to the MOU entered for the benefit of
African Americans, and to which NUL, the NAACP, and NAN were signatories.

28
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about the African American MOU move back and forth between two different

theories: (1) that Comcast has used the MOUs to create a segregated and unequal path

for 100% African American-owned channels to contract, and has set up dual paths

for negotiating for carriage (one for white-owned media and one for African

American-owned media), Compl. 84, 78; and (2) that the MOUs are a

smokescreen for Comcasts racially discriminatory business practices, that exist [t]o

make Comcast look like a good corporate citizen while it steadfastly refused to

contract with 100% African American-owned channels. Compl. 71, 9.

These implausible allegations are directly contradicted by the MOU itself, which

10

this Court can properly consider because it is incorporated by reference in Plaintiffs

11

Complaint. See, e.g., Davis v. HSBC Bank Nevada, N.A., 691 F.3d 1152, 1160 (9th

12

Cir. 2012); Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir.

13

2002) (Under the incorporation by reference rule of this Circuit, a court may look

14

beyond the pleadings without converting the Rule 12(b)(6) motion into one for

15

summary judgment.).6 On its face, the MOU between Comcast and NUL, the

16

NAACP, and NAN is clearly an agreement designed to benefit African Americans, not

17

discriminate against them, by providing additional opportunities for African American

18

owned programming networks to license their content on Comcasts cable systems.

19

(The MOUs procurement commitments also support the ability of African Americans

20

to supply all types of goods and services to Comcast.) Nothing in the MOU affects in

21

any way the ability of African American owned businesses to license their

22

programming content to Comcast through what Plaintiffs describe as the normal

23

process.

24
25
26
27

As the MOU makes clear, its purpose was to enhance the policies and programs
by which African Americans may realize greater participation in the five focus areas
6

Defendants are concurrently filing a request for judicial notice of the relevant
MOU, which is attached as Exhibit A to the Fuchs Declaration.

28
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listed in this MOUCorporate Governance, Employment/Workforce Recruitment &

Retention, Procurement, Programming, and Philanthropy & Community

Investmentsand was not intended either to disadvantage or to provide favoritism to

any community. Fuchs Decl., Ex. A at 23. To achieve this objective, the MOU sets

forth various actions and goals to enhance the participation of African Americans in

each stated area. For example, Comcast agreed to create a National African

American Advisory Council to provide advice to the senior executive teams at

Comcast and [NBCUniversal] regarding the companies development and

implementation of the master strategic plan to improve diversity practices at Comcast.

10

Id. at 3. With respect to workforce diversity, Comcast agreed to actively take steps to

11

recruit African Americans in its workforce, such as requiring a diverse pool of

12

candidates for all hires at the vice president level and above. Id. at 56. On

13

procurement, Comcast agreed in the MOU to commit at least an additional $7 million

14

on advertising with minority-owned media, to work to identify opportunities for

15

spending with African American suppliers in a variety of areas, ranging from

16

construction to financial services, and to take additional steps to enhance the

17

utilization of African American owned enterprises. Id. at 8.

18

As for programming, Comcast committed to add at least ten (10) new

19

independently-owned and-operated programming services over the next eight (8) years

20

following closing of the transaction acquiring NBCUniversal, and through the MOU

21

agreed that [f]our (4) of the new networks will be linear video programming services

22

in which African Americans have a majority or substantial ownership interest. Id. at

23

9. In other words, Comcast specifically set aside bandwidth to allow for the launch of

24

10 new independent networks, 40% of which would be networks in which African

25

Americans have a majority or substantial ownership interest. Comcast further

26

committed that the services will be added on commercially comparable and

27

competitive terms to the carriage of the services by other distributors. Cf. Compl.

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86 (alleging that channels launched through the MOU receive less favorable

contracting terms). Significantly, nothing about this commitment limited the number

of African American owned networks Comcast could add outside the MOU process, or

required African American owned networks to seek carriage exclusively as one of the

four networks specified in the MOU. Rather, Comcasts commitments merely set a

floornot a ceilingthat guaranteed carriage to a specific number of networks in

which African Americans have a majority or substantial ownership interest. Moreover,

the MOU guaranteed those carriage slots regardless of any bandwidth or other business

constraints that Comcast would normally consider in rejecting proposals to add new

10

channels to its lineup. Plaintiffs also never grapple with the utter implausibility that

11

Comcast and leading civil rights organizations would put down in writing a plan to

12

systematically discriminate against African Americans, announce that plan publicly,

13

and submit it to the FCC. The MOU itself makes clear that Defendants did no such

14

thing.

15

In short, nothing in the MOU supports Plaintiffs baseless allegation that it

16

created a segregated and unequal path for African American owned networks.

17

Plaintiffs allegations about the MOU are belied by the text of the document itself, and

18

thus need not be accepted as true. See Gonzalez v. Planned Parenthood of L.A., 759

19

F.3d 1112, 1115 (9th Cir. 2014) ([I]f those documents [incorporated by reference

20

into the complaint] conflict with allegations in the complaint, we need not accept those

21

allegations as true. (quoting Slater v. A.G. Edwards & Sons, Inc., 719 F.3d 1190,

22

1196 (10th Cir. 2013)) (alteration in original). Furthermore, ESNs own experience

23

confirms that the MOU process operates for the benefit of African American owned

24

content owners, rather than to their detriment. Even after Comcast declined to license

25

ESNs channels, the Complaint acknowledges that Comcast suggested the MOU

26

process as an additional route by which ESN could pursue carriage, an opportunity

27

that would not be afforded to other applicants. Compl. 79.

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That the MOU process offered an additional opportunity to ESN would seem to

foreclose any argument that the MOU is a mechanism for discrimination: Plaintiffs

did have an opportunity for carriage with Comcast under the MOU; they simply were

not selected for carriage as against other African American owned programming

services. The Complaint acknowledges that, through the MOU process, Comcast has

launched other networks in which African Americans have substantial ownership.

Compl. 76. Yet Plaintiffs respond that the MOU is really a smokescreen for

discrimination against the unique class that happens to cover ESN100% African

American owned companies. Plaintiffs write off the African American channels that

10

Comcast launched as part of the MOU process as not having a genuinely African

11

American identity and possessing a token ownership interest for African Americans.

12

Compl. 2122, 7678. But these offensive characterizations cannot save Plaintiffs

13

Complaint.

14

When Plaintiffs distorted characterizations of the MOU are set aside, the actual

15

agreement provides no support for a plausible claim of discrimination against African

16

Americans, generally or against ESN in particular. Plaintiffs effort to cast aspersions

17

on Comcast by attempting to transform an agreement designed to benefit and promote

18

African Americansan agreement that the nations leading civil rights organizations

19

signed and supportedinto evidence of a conspiracy to discriminate against African

20

Americans cannot be squared with reality. Instead, the MOU and the Complaint both

21

confirm that ESN has merely concocted a theory of race discrimination when it could

22

not get a favorable result from arms length negotiation.

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Gibson, Dunn &
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3.

Plaintiffs Remaining Allegations Do Not Exclude An Obvious, NonDiscriminatory Reason For Comcasts Carriage Decisions

Beyond the conclusory assertions and the distorted description of the MOU,
virtually nothing remains in Plaintiffs Complaint. And none of the allegations that are
in the Complaint plausibly shows race discrimination in the carriage of video
programming. Instead, all of those facts are explained by an obvious, nonMemo of Points and Authorities ISO Motion to
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discriminatory alternative, see Iqbal, 556 U.S. at 682, provided by the Complaint itself:

Comcast believed that the expenses it would incur from carrying ESNs programming

were not justified by the limited consumer interest and demand for ESNs program

content. Compl. 8889 (describing how Comcast communicated to ESN that it was

concerned about bandwidth and customer demand); see also In re Herring Broad.,

Inc., 26 F.C.C. Rcd. 8971, 8976 (2011) (noting that cable operators base their carriage

decisions on a variety of non-discriminatory business reasons, including (1) their

evaluation of the programming; (2) whether the channel has an established brand with

a record of appeal to subscribers; (3) whether the channel has obtained carriage on

10

competing cable systems; (4) the experience of the channels owners; (5) whether

11

bandwidth could be better used for other purposes; (6) whether the channel has outside

12

financing; and (7) whether the terms offered by the channel are favorable) (internal

13

quotation marks omitted).

14

Nor do Plaintiffs exclude the possibility, Century Aluminum, 729 F.3d at

15

1108, of the alternative explanation that Comcast simply exercised its business and

16

editorial discretion in declining to contract for ESNs content. That discretion has

17

been recognized by the Supreme Court as a matter of Comcasts First Amendment

18

right. See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 636 (1994) (There can be

19

no disagreement on an initial premise: Cable programmers and cable operators engage

20

in and transmit speech, and they are entitled to the protection of the speech and press

21

provisions of the First Amendment.); see also Comcast Cable, 717 F.3d at 993

22

(Kavanaugh, J., concurring) (Just as a newspaper exercises editorial discretion over

23

which articles to run, a video programming distributor exercises editorial discretion

24

over which video programming networks to carry and at what level of carriage.).

25

None of the Complaints miscellaneous factual allegations can render plausible

26

Plaintiffs highly improbable theory that civil rights groups conspired with Comcast to

27

discriminate based on race. In fact, Plaintiffs own allegations undermine their charge

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of race discrimination. Plaintiffs say that Comcast has a policy of refusing to do

business with African Americans, yet they acknowledge that Comcast has launched

channels with African American ownershipthough purportedly a company that is not

100% African American owned is not genuinely African American, in Plaintiffs self-

serving view. Compl. 76. Moreover, the Complaint acknowledges that ESN itself

has had multiple meetings for channel carriage with Comcast, during which Comcast

explained what might make ESNs content more attractive for carriage. Compl. 52

53. Plaintiffs never explain why Comcast would go to that trouble if it knew all along

that it would not do business with ESN on the basis of race.

10

The implausibility of Plaintiffs allegations is also highlighted by their

11

idiosyncratic theory of discrimination. In order for a corporation to state a claim for

12

violation of 1981, it must have acquired a racial identity, either as a matter of law or

13

by imputation. Thinket Ink Info. Res., Inc. v. Sun Microsystems, Inc., 368 F.3d 1053,

14

1059 (9th Cir. 2004).7 In this case, Plaintiff ESN does not allege that it was

15

discriminated against on the basis of its identity as an African American company. It

16

cannot make that allegation, because the Complaint acknowledges that Comcast has

17

contracted with networks owned or controlled by African Americans. See Compl.

18

2122, 7677 (noting that Comcast has launched two channels with an African

19

American identity). Instead ESN hopes to plead around this problemwhich

20

completely undermines its contention of race discriminationby self-identifying as a

21

uniquely 100% African American owned company. Compl. 2. ESN thus asks the

22
23
24
25
26
27

Thinket held that pleading a racial identity is necessary in order to establish that the
plaintiff falls within 1981s zone of interests for purposes of prudential
standing. 368 F.3d at 1059. The Supreme Court has recently clarified that
whether a plaintiff is within the statutes zone of interests is not a matter of
standing, but rather of whether the cause of action encompasses a particular
plaintiffs claim. Lexmark Intl, Inc. v. Static Control Components, Inc., 134 S.
Ct. 1377, 1387 (2014). That difference is immaterial here.

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Court to believe that while Comcast is willing to contract with companies

predominantly owned by African Americans, and even majority owned by African

Americans, and perhaps even 95% owned by African Americans, Comcast refuses to

do business with 100% African American owned companies on the basis of

discriminatory animus. Plaintiffs contention defies judicial experience and common

sense. Iqbal, 556 U.S. at 679. And even then the allegation is rebutted by the

Complaint itself, which acknowledges that Comcast pays $3 million per year in

licensing fees for channels owned 100% by African Americans. See Compl. 55.

Plaintiffs allege that Comcast has agreed to broadcast only a single channel

10

owned 100% by African Americans since the MOU was signed in 2010. Compl. 7,

11

29. But during the two years prior to the Complaintthe period covered by the

12

applicable two-year statute of limitations, see Johnson v. Lucent Tech. Inc., 653 F.3d

13

1000, 100607 (9th Cir. 2011)8Plaintiffs do not even allege that any other 100%

14

African American owned companies have pursued carriage with Comcast. Nor do

15

Plaintiffs plead any details about consumer demand for those hypothetical channels,

16

their effect on bandwidth constraints, or the terms that the owners of those channels

17

were willing to accept. In fact, ESN alleges that it is the only 100% African

18

American-owned video programming producer and multi-channel operator/owner in

19

the United States, Compl. 2, which necessarily means that no other companies

20

similarly situated to Plaintiff have pursued contracts for multi-channel carriage with

21

Comcast. Cf. Ardalan v. McHugh, No. 13-1138, 2014 WL 3846062, at *89 (N.D.

22

Cal. Aug. 4, 2014) (dismissing Title VII claims because the plaintiff failed to plead

23

that other employees who received more favorable treatment were similarly situated in

24
25
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27

A two-year statute of limitations applies because Plaintiffs claims allege


discrimination, not retaliation, and therefore arise under 1981 as originally
enacted. See Johnson, 653 F.3d at 100607. If Plaintiffs theory of liability
depended on Congresss 1991 amendments to 1981, which it does not, then a
four-year statute of limitations would apply. Id.

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all material respects). Without so much as an allegation that any other qualified,

100% African American owned businesses have pursued contracts with Comcast, the

absence of those contracts does not plausibly establish intentional race discrimination.

Plaintiffs allege that ESN has complied with each of Comcasts demands for

channel carriage. Compl. 53. Plaintiffs, however, provide no facts to support that

contention. Plaintiffs say only that ESNs Justice Central channel has shown

double- to triple-digit ratings growth. Compl. 54. But Comcast cannot and does

not carry every channel with growing demand, and Plaintiffs do not allege anything to

the contrary. (Of course, absolute demand is more important than mere growth from

10

year to year in terms of Comcasts decision whether to dedicate bandwidth to a

11

channel.) Plaintiffs do not begin to demonstrate that ESNs channels offered a benefit

12

to Comcast along the full range of factors that Comcast considers when contemplating

13

carriage. That ESN considers itself to have successful channels is not relevant; what

14

matters is Comcasts perception of those channels at the time that it declined to license

15

them. See Han, 541 F. Appx at 627 (holding that the plaintiff is not entitled to a

16

reasonable inference of discrimination simply because he alleges that he was good at

17

his job and is a racial minority); Comcast, 717 F.3d at 98586 (establishing

18

discrimination requires proof that Comcast perceived a net benefit from licensing, and

19

yet refused carriage for a discriminatory reason). Comcasts decision not to pay to

20

license ESNs channels is more reasonably and plausibly explained by Comcasts

21

disagreement with ESN about the demand for ESNs content, as well as the business

22

case for carriage in light of the burden on Comcasts limited bandwidth, than by

23

intentional discrimination.

24

Plaintiffs allege that Comcast has historically offered shorter-term deals and

25

little, if any, in licensing fees to the channels [that] it launches through the

26

MOU/Minority Process. Compl. 86. But Plaintiffs plead no details that would

27

support this allegationno facts at all about what terms were offered, and whether

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those terms were justified by other considerations, such as the fact that the channel was

brand new. Nor do Plaintiffs attempt to show that these channels were similarly

situated to the channels for which Comcast purportedly offered more favorable terms.

Plaintiffs allege that [i]n November 2014, a Comcast executive told [ESN] that

although its channels were good enough for carriage on Comcasts platform, [ESN]

would have to wait to be part of the next round of [MOU] consideration, i.e., the

MOU/Minority Process. Compl. 79 (third alteration in original). Even accepting

this factual allegation as true at this stage, it does not show any intent to discriminate.

The executive allegedly conveyed that, even though ESNs channels were potentially

10

high enough in quality for carriage, Comcast could not presently license those channels

11

for whatever reasonjust as Comcast routinely declines carriage requests from other

12

qualified channels for business reasons. But, the executive also said, this was not the

13

end of the line for ESNas it would be with virtually any other carriage applicant

14

because ESN had an additional opportunity to pursue carriage through the MOU

15

process. No reasonable person could interpret this statement to mean that Comcast

16

would treat ESNs request for carriage less favorably on account of race.

17

Finally, Plaintiffs allege that [o]n one of the many occasions on which [ESN]

18

reached out to Comcast, a Comcast executive stated that Comcast was not going to

19

create any more Bob Johnsons. Compl. 1517, 95. This stray allegation cannot

20

save Plaintiffs Complaint from dismissal. Plaintiffs plead nothing whatsoever about

21

who made this remark, or in what context. Those details matter because the Ninth

22

Circuit has held that only evidence of conduct or statements by persons involved in

23

the decision-making process can permit an inference that race was a motivating factor

24

in the defendants decision. Enlow v. Salem-Keizer Yellow Cab Co., 389 F.3d 802,

25

812 (9th Cir. 2004).

26
27

The Ninth Circuit has also held that one or two remarks by a single employee,
even if the remark could potentially show animus, does not plausibly show that the

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corporate defendant has a policy of discrimination. See Konarski v. Rankin, F.

Appx , No. 13-17384, 2015 WL 899268, at *2 (9th Cir. Mar. 4, 2015) (affirming

dismissal of a 1981 claim). Here, of course, the alleged remark does not refer to race

and does not clearly show animus; it is at most ambiguous. Based on the allegations in

the Complaint, the speaker likely meant to convey that ESN should not expect to sell

its content for anything close to $3 billion. See Compl. 16. What is more, there is

nothing to suggest that this remark should be attributed to Comcast as a company, or to

the civil rights groups with whom Comcast allegedly conspired. Plaintiffs allegation

of a single remark, by an unnamed person, that makes no reference to race cannot

10

convert their fantastical allegations of a company-wide policy of discrimination, aided

11

and abetted by respected civil rights organizations, into a plausible 1981 claim.

12

D.

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Plaintiffs Have Not Plausibly Alleged That Any Defendant Conspired To


Discriminate Based On Race
Plaintiffs also allege that all Defendants intentionally agreed and conspired

with each other to discriminate on the basis of race against 100% African Americanowned media in connection with contracting, in violation of 42 U.S.C. 1985(3).
Compl. 122. As with their 1981 claim, Plaintiffs Complaint fails to state any
plausible conspiracy claim.
Section 1985(3) makes it illegal for two or more persons in any State or
Territory [to] conspire . . . for the purpose of depriving, either directly or indirectly,
any person or class of persons of the equal protection of the laws, or of equal privileges
and immunities under the laws, and then for any person to do, or cause to be done,
any act in furtherance of the object of such conspiracy, whereby another is injured in
his person or property, or deprived of having and exercising any right or privilege of a
citizen of the United States. Section 1985(3) creates no rights; it merely provides a
civil cause of action when some otherwise defined federal rightto equal protection of
the laws or equal privileges and immunities under the lawsis breached by a

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conspiracy[.] Great Am. Fed. Sav. & Loan Assn v. Novotny, 442 U.S. 366, 376

(1979).

As explained above, Plaintiffs have failed to plead any violation of 1981, and

therefore they have necessarily failed to plead a conspiracy in violation of 1985(3).

See Novotny, 442 U.S. at 372 (Section 1985(3) provides no substantive rights itself; it

merely provides a remedy for violation of the rights it designates.); Peloza v.

Capistrano Unified Sch. Dist., 37 F.3d 517, 52324 (9th Cir. 1994) (per curiam)

(affirming dismissal of 1985(3) conspiracy claim because plaintiffs allegations were

insufficient to support a claim based on a violation of his constitutional rights of free

10

speech and due process); Greenlaw v. Adams, No. C08-04782 RMW, 2010 WL

11

725346, at *12 (N.D. Cal. Feb. 26, 2010), affd 475 F. Appx 179 (9th Cir. 2012); Hai

12

T. Le v. Hilton Hotel, No. C 09-4871 PJH, 2010 WL 144809, at *15 (N.D. Cal. Jan. 11,

13

2010). The Court can and should dismiss the 1985(3) claims on this ground alone.

14

Moreover, Plaintiffs conclusory allegations that Defendants intentionally

15

conspired to discriminate on the basis of race are woefully inadequate, as they are

16

unsupported by any of the necessary factual enhancement to cross the line between

17

possibility and plausibility. Eclectic Properties, 751 F.3d at 995 (quoting Twombly,

18

550 U.S. at 557). Plaintiffs merely assert that a conspiracy to discriminate existed, but

19

their Complaint is bereft of any facts supporting the existence of the alleged conspiracy

20

between the Defendants, such as facts concerning the formation of the alleged

21

conspiracy, or its objectives, or why leading civil rights organizations and a

22

government regulator would conspire to facilitate discrimination. Indeed, Plaintiffs

23

barely provide any factual allegations whatsoever regarding NUL, the NAACP, NAN,

24

Rev. Sharpton, and Ms. Baker.

25

None of Defendants alleged conduct suggests in any respect that they joined

26

together in a conspiracy to discriminate on the basis of race against African

27

Americans. Plaintiffs assert that the fact that Ms. Baker voted in favor of the

28
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Comcast / NBC-Universal merger, and that NUL, the NAACP, and Rev. Sharpton (on

behalf of NAN) signed the MOU, constitute acts in furtherance of the conspiracy,

but that contention is far from plausible and does nothing to exclude an obvious

alternative explanation for these actionsnamely, that Ms. Baker voted in favor of

the Comcast/NBCUniversal transaction based on its merits, and that the MOU was a

legitimate effort to benefit African Americans, not discriminate against them. See

Eclectic Props., 751 F.3d at 996. Plaintiffs also ignore that on the face of the MOU,

neither NUL, the NAACP, nor NAN are given any discretion over the MOU selection

process. See Fuchs Decl., Ex. A at 2 (While Comcast is committed to these general

10

diversity initiatives, it is understood that each operating subsidiary retains independent

11

discretion to determine the best method to implement the initiatives in accordance with

12

the parameters set forth within the MOU.); id. at 9 ([S]election of such newly

13

distributed programming services will be in Comcasts discretion.).

14
15
16
17

In short, nothing that Plaintiffs allege is suggestive of conspiracy, Twombly,


550 U.S. at 567, and therefore Plaintiffs have failed to state a 1985(3) claim.
CONCLUSION
For the foregoing reasons, the Court should dismiss with prejudice all claims

18

against Defendants NUL, the NAACP, NAN, Rev. Sharpton, and Ms. Baker for lack of

19

personal jurisdiction. In the alternative, the Court should dismiss with prejudice all

20

claims against Ms. Baker on the ground of immunity. As to all Defendants, moreover,

21

the Court should dismiss all claims with prejudice for failure to state a claim for relief.

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DATE: April 24, 2015

GIBSON, DUNN & CRUTCHER LLP

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By:

/s/ Miguel A. Estrada


MIGUEL A. ESTRADA
DOUGLAS FUCHS
JESSE A. CRIPPS
BRADLEY J. HAMBURGER
MICHAEL R. HUSTON
Attorneys for Defendants
COMCAST CORPORATION; NATIONAL
ASSOCIATION FOR THE ADVANCEMENT
OF COLORED PEOPLE; NATIONAL
URBAN LEAGUE, INC.; AL SHARPTON;
NATIONAL ACTION NETWORK, INC.;
MEREDITH ATTWELL BAKER

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PATTERSON BELKNAP WEBB


& TYLER LLP
PETER C. HARVEY
Attorneys for Defendant
NATIONAL URBAN LEAGUE, INC.

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