explanation this court in star versus bach instructed a such situation to handle the words of this quarter so instructed i asked to read them right at the outset to six fifty two f third at twelve sixteen this court sa defendant of the plaintive has been given the same right to contract as are enjoyed by white citizens as i look at the complaint judge hatter examined i references to other if you will companies that do the same thing as comcast does like the phone company and so on but what i'm looking for work the references to the content providers that are comparable to your client where the references that shows that your client was treated differently in connection with  contract then other people who are similarly content providers i don't see that where is it i think you find it in two places first current casts a company that's fifty five years old in never has contracted with one hundred percent african work and the company even if you accept the two companies aspire and revolt the defense point to still only zero point zero one percent of comcast contracting with african american owned companies ok about it i get that i get that point but you are you still i think you need to show why don't other companies what white owned companies we're treated differently by comcast in this situation i think the statistics i just presented there in the complaint to that but there's another way also there are five hundred channels that are covered by the other large cable companies  five hundred channels all of them a curate by comcast except for those owned by the plaintiffs so all of the white own companies are carried by those companies but not these that are owned by african american another way but t and t and so on the those are people who are in a comparable situation as comcast they they take the content produced by other people and they put it out there through various me their al so here you go to comcast and they negotiate for i think ten years if i understand correctly with your client they give a lot of excuses and so on except for the bob jones reference which is not repeated in the essay see the inference that you draw is that it's race based as you know judge hatter knows a lot about civil rights he didn't find a nine hundred eighty one actually he did just that it wasn't possible i'm also struggling with it that the reference that you make there about all these other companies intentional discrimination from pattern so stark is leave no other explanation the statistics i presented to you are such a pattern also is the complaint points out when there are other african american channels the black family channel the story that college channel soul train again comcast refused to contract with them the other way your honor you can look at that is in delhi desert palace for says costa the supreme court said you can infer discrimination when the alternative explanations any additional bandwidth but then they took on a to get additional channels into additional networks they said we're only going to do sports in news and then they took on entertainment all of this i think of the desert pal think it's striking that the pelleas go on and on in their brief quoting the first complaint and then say we can't refer to something in the first complaint i think they very much open the door for this court to consider what's in the first complaint but what they have in their breathing and to say it was uttered here we want know more about johnson's is clearly about race because bob johnson was the most successful african american so i think when you put all of this together it certainly shows alternative explanation that comcast refusal to contract with e s p n was based on legitimate business reasons and the court went out of its way to suggest heures for the pleading to fish and cheese but they weren't cured what what were the cures that the district court suggested here it's not clear to me what would cure it with the district court was saying because in light of the statistics that i just said to judge that this seems clear in showing that's a plausible claim of race discrimination moment you look at the totality of what has been presented here there doesn't seem to be a very good other way to explain it and yet there's no express allegation that says we were treated this way but this white owned black family channel go who spoke at that college soul train that's progress eighty nine to one zero one exit record one hundred ninety one twelve it's throughout the complaint in terms of comcast never having contracted with an african american channel in fifty five years th point in time you want to save your five minutes when you say well at this point thank you paid bench marks as the court what does that mean well they they said that they were highly attractive was for that or they themselves would have been highly attractive because they were they had a ten viewers there would be one hundred percent but that doesn't mean that anybody's interested in you you know all to not telling me anything about the other networks that you that you claim were hired in preference to you how they're similarly situated so there was nothing to compare all of these other net it was he saying that they had to show that the that this network would have a speaking audience is the other one i think what you are saying is give me something that makes this possible and in order for ordered to do understand why he thought that this was relevant yawner is very important to understand that what he was getting from the get go was conspiracy theories and can try racial categories now the dean would like very much to get away from that and he claims that we are trying to talk about his for a complaint as though we are trying to talk about the complaint that was left to this class i'm still not understood what what what is what should the complaint have said that it didn't say if you were pleading it that they were unable or unwilling to plead in the first case the complaint would not have pleaded that we had engaged in a pattern of discrimination that involved our doing it with the government the n w c p the urban league all sharper than that that's a negative but what what should have been added to the complaint well that would make it discriminate on the basis of race then it seems to me which is paragraph fifty nine of this complaint then it seems to me almost inherently impossible to add anything that would render the horror of the discrimination claim actually possible you're starting with a discrimination claim that starts with a proposition as paragraph fifty nine of this complaint says that the federal government works hand in glove with white media to perpetrate the exclusion of black enterprise's from the carriage in cable companies it goes on to say that we have entered into all of these efforts to bribe the civil rights organizations those who signed the m failure to carry as part of a deal with the federal government and the oldest civil rights organizations in the country it is seem to me inconceivable that you could come up with any elevation of fact that would make that possible that but well let's assume that you identified the weakness in the complaint and i think the various iterations of the different complaint to me isn't as important because i'm really focusing on the the latest complaint and the one that's currently on appeal so let's say that the statistical evidence or allegation mentioned by being in and of itself wouldn't be sufficient to reach the inference that he would like us to reach but in addition to the statistical evidence cited there is a kind of a pattern of conduct alleged in the complaint in this case examples include executives telling us to go get a pyrrhic all they needed to kind of shore up their request and they did it but now it doesn't matter anymore to go to the other divisions and build up support oh but wait a minute it's really corporates decision present impurity coalfield evidence but ok now field evidence doesn't matter anymore oh we don't have enough bandwidth but in the same time period all of these other allegations are sufficient a very specific that over eighty new or lesser known white own networks have been added despite comcast is claiming that they didn't have sufficient bandwidth and so all of these allegations i think in order to possibility you have to kind of look at all of them and stack them up to say ok that coupled with the statistical evidence does that suggest circumstantial evidence for allegations that would be sufficient to meet the things that are summarized i think at page six of the reply brief and i think it is a very careful job of calling what is arguably factual in a very long pleading and i think i will go back to the point that finding shreds that that this was impossible but taking the laws as they are i will start with my first example this field example that's paragraph forty five of a complaint this is this is described in the briefing as a reversal of normal  briefing that they obtain something that shows that comcast departed from and they describe in the briefing of normal procedure to go back to the ban with i refer you to what is cited in all of the briefing at the statement of the regulator of this industry the federal communications commission it points out in herring that is an everyday occurrence in this industry that there are a lot of more people knocking at the door asking for carriage that composite and that's true that's true for everyone that wants to  be carried that they know that there has to be there is a limited bandwidth and that there has to be some selective ity and the question is what is the criterion that is being used for that selectivity i think it's and if it's race but there is no factual support this is again part of what i started out well but this is the pleading i don't know what point do we have to have the evidence pled order i have been practicing law long enough to remember the connelly days too but in fact and it ball make very clear that if somebody is going to make a claim of that nature it cannot simply that you know congress and comcast has not demonstrated exactly how that is i don't think that that is actually an affirmative i never met the allegation that they're not african american let me ask you this state a cause of action nine hundred eighty one i would have to come up with a showing that but for my race i mean as you say but for that of course goes to the t your causation at least that's the way i read it so with that in mind what would you have to say you have to point out that you know there are people who are comparable to you who are similarly situated that you are qualified that you have to live with just to name them some example thing in the world but if that were entirely sufficient you know the possibility standard would be out you know the world because that doesn't feel anything about how they're similarly that the way now the other aspect of this which i think is really very important because it really goes to what is a legal requirement in this case is this notion of a contrived racial category of one hundred percent african american right this is a reconstruction  white but you know in those dark days the in the nineteenth century people who had very little african american blood were consider african american you know the notion that you're going to have a special category of one hundred percent african american and only that is the protected class from their perspective or the fact that they say the category is one hundred percent african american owned makes it different than say seventy five percent african american owners i'm saying it is legally not called nice simple as a category the issue is whether we discriminate on the basis of race and if the pleading affirmatively alleges that we carried african american networks they are pleading themselves out of court and they cannot say that pleading by alleging that those networks were not one hundred percent african american if the pleading pleading alleges that comcast carried other african american owned doing this with the federal government you know this is now starbucks is back i mean you know the notion that we are are in legal to discriminate against a special category of african americans and they were doing away with complaint it says comcast has continued to offer band with a network carriage to newer lesser known white owned television networks while at the same time essentially telling us that it didn't have any band with a carriage availability years long refusal to allow subscribers access to one hundred percent african american owned media company is illustrated a racial animus so as i understand your argument you're saying that  alleging on the one hand carrying white owned networks but on the other hand refusing to carry one hundred percent african american own networks that's not enough to meet the possibility standard because it doesn't include some allegation that there could be for example a majority african american media companies who were offered carriage contracts no i'm saying something slightly different your honor i'm saying that there are separate separate separate allegations of the complaint that affirmatively pleaded you in the same period we gave kerridge to african american networks that's point one point two that saying that we gave carriage to white networks is nothing more than a formulaic recitation of the offense because of course we're in the carriage business it would be very hard to not say that we give carriage to you know the majority race in the country i mean we gave carriage i mean you know if we give carriage to anybody that's likely to be the case and so that doesn't actually add anything to the case but finally you know the point that i'm really making is that if the if the ca otherwise implausible as it is by allegations that we are in this with the federal government and civil rights organisations and and as it is by pleading that we have hired african american networks it doesn't get saved by inventing a novel racial category that is not merely african american discrimination there is one real point that i think is important to note which is this notion of a major competitors which is again t and directly i was product of settlement correct and in the scribing the whole lek there was as all of our major competitors that is again a little say an direc t v you know charter and everybody else have a pretty much in the industry and the fact that there was a campaign of litigation necessary to settle to bring this highly valued product to the attention of all of these companies that were not interesting carry them again also lessens the inference of discrimination and gives you know the lie to the notion that this is attractive to large and the companies and it is quite contrary to the representation that is made in the briefing of what's in the complaint yes you know one more thing or you're out of time but it's this statute was drafted after the civil war part of the civil rights act  hundred sixty six but we're trying to apply it now the rights activists have traditionally been we've been told to construe them liberally because they have a important purpose in mind and yet we now are in twamley how do we mesh those two concepts how do we deal with the concept of construing a pleading liberally which would suggest you really cut a bit over  it seems to me that the fair answer to that this myth is to say that you know the justice system is best served to in making people with possible cases get in court then use you know the resources of the courts and allowing experience go just that had are to weed out those that are truly impossible and give his attention to those that actually can clear the bar so that those who have an actual grievance can get justice ok thank you insurance people were similarly situated to me in all respects except with regard to race they caught it i didn't and as i read the complaint you don't have anything that clean cut but what you do have is little bits and pieces you've got well they're giving me the run around well that the statistical evidence suggests that they haven't in the past worked or contract with hundred percent african american phone companies and so in the task of putting together those little bits and inferences to see whether even ledge a plausible case i think the counsel for comcast did it and i stop pointing out some of these more  outlandish allegations and it's arguable that perhaps some of the allegations oversold your case do we way that in testing the possibility of the complaint over all of the complaint does do exactly what you sa actually needed in a complaint then when to go to your direct question when you look at the evidence that is presented here together it shows a possible claim of discrimination take the statistical pattern in fifty five years comcast has never contracted there was a industry wide pattern of discrimination by the federal communications commission the fact that the lawsons to deal with it doesn't mean that there's less discrimination in desert pelisse versus cost of the supreme court explicitly sa all of the nondiscriminatory rationales are refuted you can infer race discrimination if you were pointing out your questions to mr estrada the complaint very carefully goes through each of the other alternative explanations meeting field representatives competitors band with sports and news interest in all of these instances none of these are accurate but but but with respect i i'm still struggling with the fact that we don't have the normal budget for versus one of the one of a number of causation issues this is a statute that talk about treatment that is different for white people and others given that fact where does the plaintive come up with the idea that if you are one hundred percent african american on that that's different than say seventy five percent african american oh but there's nothing in this record to indicate that comcast was contracting with seventy five percent only african  eight that comcast refuses to work with one hundred percent african american companies is there like an inference that we can draw there why not just say comcast doesn't deal with african american owned companies here it's certainly true but in this instance it is one hundred percent african american on company income cast refused to deal with that we then could get to the question of who does come castille with and what percentage of african american are they and we could through discovery gain that information but we're not is allegations and there is so much here a statistical patterns to start with the other explanation refuting all of the other alternative explanations and the other facts here including that why don't change his work cept in the black on channels rejected and you helpful to us and we appreciate it the case just argued is