181171, comcast versus the africanamerican owned media. Mr. Estrada . Mr. Chief justice and may it please the cure the, the main circle held in this case that a plaintiff may succeed in a 1981 claim merely by showing that race was a factor in the defendants Decision Making even if the decision would have made and was made for entirely appropriate business reasons having nothing to do with race. Solely on this basis, the 9th circuit saved the plaintiffs third complaint from dismissal. We submit that this decision is wrong and should be reversed for at least three reasons. The first is that it is to this courts decision, holding that but for the background rule that Congress Must presume to have been adopt individual federal staff toots unless the statute provides otherwise which we submit section 1981 does not and originally adopted in 1866 or amended in 1991. Second, in 1991 congress amended title 7 to provide for a motivating factor standard, but did not amend 1991 the same even though it amended in other respects at the same time. This all, but conclusively shows that section 1991 require, but for causation as this court concluded in nasser with respect to the ada and the retaliation provisions of title 9, and third, it is if the 9th circuit is affirmed it would be vastly easier to recover damages under 1991 judicially implied cause of action that under any express cause of action actually enacted by congress under any federal discrimination law and thus, affirming the 9th circuit would mean that section 1981 would completely displace the regime that congress has devised in title 7 to govern employment discrimination cases. No plaintiff would sue under title 7 for any employment case. Counsel, i wonder if the distinction theyre fighting is somewhat academic in the Contract Negotiation process, for example, there may be several steps along the way, and if at one of those steps there is clear, racial and excuse me, animus evident and the process continues on at the end of the day, the contract is defied. It may be hard to prove, but for causation. On the other hand, its also hard to ignore the step in which there was clearly evident, racial animus, and it may be a reasonable argument or excuse me, allegation that that animus continued through even though it manifested at one stage of the process. All complaints are different, mr. Chief justice, and i dont rule out the possibility that a complaint may allege such an expression of animus that it could imply that the animus continued until the end, but for that the complaint alleged is for causation. The plaintiff, with the motion to dismiss to the 9th circuit, have stuck their case on the proposition that theyre alleging that race was a motivating factor and a motivating factor only, and they were not prepared, but for causation, and you know, we contended that is wrong under nasser and it is not under any standard as we made clear, but of course, it is also the case that we have cases like gross and nasser in which it is evident from the record that some consideration of the protected factor was made in the employment context, and at the end, you know, the jury still had to be instructed that it had to determine whether that was a determinative factor in the Decision Making, and in all of these cases, the court has already determined that the fact finder will have to make the decision as gross said whether that factor not only played a role, but also had Justice Thomas put it in gross a determinative effect in the Decision Making. Mr. Estrada, you said that the respondents here continue to say that they dont have to prove but for causation. Im a little bit confused about that point, and i guess this is for mr. Chimerinski. You make the good point that on page 47 or 49 of the respondents brief they seem to say the opposite. They seem to suggest by quoting that Third Circuit case. The past case, right. That, in fact, they are going to have to prove, but for causation at the end, and the question here is really what they have to allege now . And if if we take it that way, i mean, mr. Chimerinski can say what he wants about that, and lets assume that thats true, that theyll have to prove, but for causation at the end and that is the ultimate standard in the case, but this is a complaint and, you know, its prediscovery and the plaintiff is not going to know what the defendant was thinking about in making whatever contract decisions the defendant was making and and so what do you think the plaintiff has to allege at the beginning . I think, you know, i have two answers to that. First, the 9th circus ruling had nothing to say about the difference between pleading and the merits. In fact, the 9th circuit worked from what was needed to prevail on the merits to then upholding the complaint. I take that, and i would think that if my assumption holds which is the respondents do have to prove this at the end, then you would have to say that the 9th circuit is wrong, but you would still have the question of whether the complaint is sufficient. Yes. Now, the second point i was going to make is the whole question of whether that might be burden shifting has been introduced coyly by the respondent and we dont know what the position is on that, but i understand what theyre trying to say based on the past case that it may be that but for it sort of applies in the sense that the burden of showing but for causation has shifted to us, so that in the sense what actually is happening is that they are arguing for the pricewaterhouse framework without daring to name its name. So they could be saying that, and i guess this is another thing for mr. Chimerinski to think about and they could shift the baurden of causation over to you. Excuse me, mr. Estrada. They dont have to be saying that. They could be saying that we really do believe that in the end, that we will have to prove, but for causation, and because were prediscovery. You dont want people throwing around baseless allegations in their complaint that that a complaint should be found sufficient even if it doesnt allege, but for causation. You know, its enough to say they made a racist remark, and they gave and they gave contracts to lots of white firms that werent as good as our firm and thats enough. Yes . Now, the the answer to, you know, the bottomline answer, though i think the theory is that underlies all of your questions is that the answer to your question is actually controlled by rule 8, and is actually very clear from which was a discrimination case and antecedent, and we do not want to open the doors to discovery based on conclusive allegations with the elements of the offense dressed up as factual assertions, and in our view, thats what we have in this case, and so it is not an answer to say because you can say that in practically every case in discrimination, et cetera, that the fact with respect to mental state will always be in the position . Isnt it isnt it im sorry. Go ahead. Isnt it perfectly common when youre alleging a mental state of an opposing party and you have yet to have discovery to allege in information and belief of mental states and isnt that the simple solution here . Well, yes and no. Justice go Justice Gorsuch, you can allege that so long under ikball. Yes, but with justis kagans facts, there is a fact and theres a statement and you have some factual circumstances that might lead to that inference then you would plead that mental state. And if you plead the mental stages that would have the inferences well, maybe, but i mean, you said that seems quite right, but weve had this case before ikball and kwanbly. And im not sure how to pronounce this. Which quanbly and said thats still good law and this is actually a Mcdonnell Douglas shifting case with the prima facie case and sirkowits said, and show the prima facie case and that theyre different and ikball and twomblie say thats good. With all due respect i dont thats a full or accurate characterization of the case or how to distinguish it. What was happening in the serena case, to make our lives easier, that the court ruled that it was deafishen deficient in the Mcdonnell Douglas framework, and it is an evidentiary framework that a plaintiff may choose to use at a trial and not a pleading framework and that is what tw twombly later reaffirmed and you may choose to have your case in a particular way and you are not required to pleased that in all case. Mcdonnell douglas does not even apply if you have direct evidence of discrimination and its a way to prove your case cirq circumstantially so it doesnt make sense for the plaintiffs to prove in the pleading. If the plaintiff has a choice down the road to prove his case in a particular way, that is not a requirement, but again, none of that has anything to do. Im not sure i go back to the chief justices initial point which is, if i come forward and show that race was a motivating factor it can also be the but for until a defendant is posed and discovery is held, then that becomes an issue of the trier of fact, with the motivating factor was a but for cause. So as long as you have enough in your complaints to show racial animus and a reasonable inference can be drawn that thats a but for cause, i think a plaintiff has done more than enough. What you seem to be suggesting is that theyre required to anticipate every potentially independent reason you may have had without really knowing it. Well and disproving it in the complaint. No, actually, i have said nothing to that effect, Justice Sotomayor. I have said under turnbly and ikball, and shts conclusive reser tagz, and plausibly give rise to the inference. The problem is that the 9th circuit and near the 9th circuit and the government it didnt look at this complaint through the lens that would be provided if we find, but for causation. Correct. But i will point out that if you find but for causation you would then have to examine that under the requirements of ikball. Not us, the 9th circuit. Well, somebody. It would be permissible for you as you did in turnbly and ikball itself and it was a discrimination case and it was informative for the lower courts. It would not be, you know, with all due respect, you know as many worthy efforts have been made in this case to blue line the complaint in this case for the edification of the court. It is worth reading because there are any number of allegations in the complaint. If the respondents now agree that in the end, the burden the substantive standard is but for, is there a dispute about that issue before us or is the only question before us whether enough facts were pled under 12b6 and ikball and twombly and is therefore not the big issue that has been portrayed . I think they would further have to agree that what they mean is but for causation and they bear the burden of persuasion like in all elements. So the disagreement would be if the evidence is exactly with equapoise, thats when it would be. No. I think what they mean to say in accepting the standard is but for in the sense that they accept the Price Waterhouse plurality opinion. They just dont want to call it that because they understand that this court is not buying it. Who has the burden of production on the issue . The burden of persuasion, your honor. Yes. Because under plurality and Price Waterhouse and even if it is but for shifts to the defendant. And it is but for by the preponderance. I think whats really going on is the respondents are responding with pricewaterhouse and they arent citing it, but they are in a way admitting that somebody has a but for burden of persuasion and they would like it to be, that is also equally wrong for any number of different reasons. I dont know yet 9th circuit did what it did here, and i dont know why the respondents have argued the case the way they did here, but if if you look at the reser tagz of facts on pages 3 to 5 of the respondents brief, could you say that those are insufficient to raise and if pled, those would be insufficient to raise or satisfy the pleading standard and even if it is but for causation and Entertainment Studios and its channels are good enough and it needed to get support in the field and it turned out that according to them it didnt matter whether it got support in the field and so forth. There is a reser tagz tation of yes. It has not been in the last two complaints and thats point one and the demand for services is something they were able to allege in the third and last complaint and all of the notion about how much theyre carried and how many customers they reach is driven entirely by the fact that they are currently may i finish . That theyre currently carried by at t and directv which are now one company. Now it should be perfectly clear to everybody in this courtroom that thats an allegation that they were only able to make in the third complaint in this case. It was not in the first or the second complaint and the reason for that is during the dependency of the entirety gagz in this case they were suing at t and directv as they were suing us. Thank you, counsel. Ms. Rattner . Mr. Chief justice and may it please the court. A plaintiff can prevail under section 1981 if race played any role in a decision not to contract even if it was not a but for cause. Thats wrong under this courts decisions and gross in nasser and nobody defends that test as the ultimate standard for causation under section 1981. Instead, and i think this gets to Justice Kagans line of question, respondents invoke burden shifting to argue that at the pleading stage, motivating factor, a motivating factor can be enough. That might have been true under Price Waterhouse burden shifting, but Price Waterhouse no longer controls. So for the first time respondents turn to Mcdonnell Douglas burden shifting instead, but Mcdonnell Douglas even if it applies in this context is not relevant to the causation question and it shifts only the burd even of production at trial so it cant affects theel ems that a burden needs to prove or that a plaintiff needs to plead and the decision that Justice Kagan pointed to underscores that. It says that theres no different analysis under what was then the old notice pleading standard, but now under twombly and ikball i can take you back to the basic structure . Mr. Chimerinsky can speak to himself as to what burdens hes ak seppi accepting or not, okay . Im looking at the statute and im not seeing any of the but for the language or any of the other that we have interpreted in any other statute. What i see is a statute that says all citizens must have the same right, and if youre talking about in the making performance execution of the contract, and weve also said the civil rights law was designed to eliminate all race discrimination, im not sure how we can square those two things with a but for. How can it be that if youre treated differently, that the formation of the contract, but youre denied the contract for another reason, that other people may have been denied for it, but you were treated differently, more burdens were put on you and more expenses were put on you and in the end, you say we really would never take on anyone like you with your business because and its true. Nobody with your Business Plan has been accepted before, but youve been running around in circles and made to expend a lot of money. Why is that not actionable . So let me give you three responses, Justice Sotomayor. The first is it hass the same right to make a contract, if you ask an english speaker regardless of her race, whether that person was denied the same right to make that contract, i think people would say no. The dictionary says definition of making is just, quote, the process of being made. So its the process, its not just the entering into the contract. There are different words in the statute. So im happy it address the making point. But i want to go back to the broader point which is how can you say that you have the same right and eliminating all vestiges of discrimination and are not using a motivating factor, but a but for standard. Justice sotomayor, there is a lot baked in there. To the extent that you think theres some ambiguity in the language, the next place to look is a textural clue in the 1866 act so when congress originally enacted this provision, section 1 was the general declaration of right of the 1866 act and thats now become section 1881 and congress had the mechanism and section 2 and that used classic but for language and thats a good indication of the cub standive scope and true enough, this scope inferred a private right of action and i dont think that can change the substantive scope that congress enacted. I am stuck back at the chief justices question and i think what Justice Gorsuch was elaborating on that as i understand their question, but anyway, my question is i dont understand that were talking about pleadings. Whats the difference . I mean, you know, they have some evidence and the evidence is on information and belief that the defendant here used race inproperly to deny us the contract and they list it. Who cares if they say it was a motivating factor or a but for, can understand later when who has the burden of proof. After all he knows whats going on in his mind and the plaintiff doesnt, and or maybe you should say you split it production, but were not apparently arguing about that. Were just arguing about the complaint, and sure, you want to say information but for . You want him to say motivating factor . Theyll say motivating factor . Justice breyer, i think it will make a difference later down the line. Yes. And let me give you a hypothetical. This is sort of a silly one, but instead of thinking of but for in the formal, legal way and think of it is did race plausibly make a difference. Someone applies to be a so the atof the law firm and the also were not hiring you because you never went to law school, if that person files a complaint complaining the racial aspect of that defial, and recall are regardless of their race because they werent a lawyer in the first place. It wasnt a motivating factor. It wasnt a motivating factor or a but for condition. I think the core difference and you see that in the court of appeals decision, is the idea that race could have been some sort of consideration, but a consideration that had no ultimate effect. If its a consideration, its true. It wouldnt have been a consideration where the applicant was a white person and if the applicant was a black person it could be. The statute says says you should treat a white person and a black person alike. Thats their reasoning. If it really does make a difference and i dont im stuck on both those points. If it really does make a difference, then you have but for cause aegz. Even though it says alike and even though a white person wouldnt be treated that way because of course, me couldnt be. On that separate question, the statute does not say everybody should be treated alike for all purposes and it says everyone regardless of race has the same right to enter the contract and we shouldnt agree that every considering of race is pernicious and has no role in public conduct which this court has made clear in dominos pizza. I think what youre saying is this makes a difference in the pleading stage in those rare cases if they exist at all where the complaint goes out of its way to refute itself. I think that is very true, and i think there are certain circumstances, and we dont have a position on whether this case is one of them where someone could go out of their way to say what the potential arguments of the defendant are, but where the rubber is going to meet the road in a lot of these cases is going to be a Summary Judgment and its important that the court you agree, in this case, that we should vacate, therefore and remand and not resolve the issue here . We dont have a position on whether this has a position at iqbal, is there anything for excuse me. You agree its unusual with a complaint with paragraph after paragraph will allegation like this to toss it to the 12b6 stage. I dont want to get into the particulars of this complaint because we dont have a shoe view on it impeach. Often can view things that are cast out. In general, what will you say, to be survive a b6 area. It needs to do what it needs to do under the age act, and the ada and title 7 of claims. Just clean enough to think thats race made a different then thats going to be enough to survive under bonn ald but burden remains with the plaintiff and the production with the defendant to set forth the reasons why. The court said that Mcdonnell Douglas applied at least in the employment context. We think it was an open question and we think it would apply should we address that issue . I dont think so. For purposes of this case wed be willing to assume that it applies here. It just doesnt matter under the decision. We did grant the question presented was whether the standard was. Mcdonnell douglas does not change the standard and it shifts only the order of introducing evidence at trial so it would not have an effect on the ultimate standard. Thank you, counsel. M mr. , chemerinsky. This court is in fourther requirement for but for causation, but this court has never created a requirement for but for causation and such lvenlg. Sections 1981 uses no such words. Its crucial to remember the procedural posture of this case. It is on a motion to dismiss all the ninth circuit held was it was sufficient to state a claim under section 1981 to allege that race was a motivating factor in the denial of the contra contract and this on 2a to the petition. There is a good deal of confusion in this case so far, and the relationship between the motivating factor, but for causation and burden shifting. When this court has adopted a motivating factor, and its adopted a burdenshifting framework and its true in constitutional cases and doyle, and its between statutory cases like Mcdonnell Douglas and the other hand, where the court has adopted but for causation such as in gross Financial Services and ultimately honors the issue before this case can resolve by looking at the plain language in congresss broad, remedial purpose. To start with the plain language, section 1981 that all persons should have the same contract as white individuals. This is about creating a requirement for color blindedness. If race is used as a motivating factor and denying a contract, then there is not the same right with regard to contracting. Also in terms of the plain language of the statute, its very important to compare section 2 of the Civil Rights Act with section 1. Section 2 which provides for criminal consequences of violation does use causal language such as by reason of, and cause to be subjected. Section 1 does not use such language. At the end of the day at the end of the day, what is the burden of persuasion in this case, in a case like this . Your honor, this court has never reached that question and it is presented here on the pleadings. Ultimately, the question would be does the burden of persuasion shift and is under section 703m nor does it remain with the plaintiffs and adopting the Mcdonnell Douglas framework, and it would say the burden of production shifts. Burden of persuasion as to what, mr. Chemerinsky. What is your view in the last analysis, ultimately, does but for causation have to be shown . In the end, your honor, i believe that this courts adoption in paterson verses mclean with the Mcdonnell Douglas does indicate that the burden of persuasion in the end would rest with the plaintiff. But the burden of persuasion as to what issue . The burden of persuasion in terms of showing that the contract would not have been issued, but for race, but thats very different, your honor, comparison to what has to be pled. So this is just a pleading case and this is just an issue of whether its a 12b6 iqbaltwombly pleading case and thats why i pointed to 2a where the 9th circuit held that in this case they had to plead that race was a motivating factor. Youre not agreeing with the 9th circuit then . Yes, your honor. Not with their test. And this is on a motion to dismiss. I do think theres an issue down the road that could be faced is that at the very end who has the burden of persuasion . You just said i thought to Justice Kagan that the plaintiff would have the burden of persuasion at the end of showing but for causation. Did i mishear that . No, you didnt. In paterson versus mclean, this court adopting the Mcdonnell Douglas burden shifting framework and Mcdonnell Douglas shifts the burden of production and not nevers shifts the persuasion. So all youre arguing, i think, is if you plead motivating factors that thats enough to survive at a pleading stage. Exactly. But you accept that as a matter of burden at trial or in Summary Judgment, you do have to prove, but for causation. Thats for this court implied in paterson versus mclean. So what did you do with the extreme example that the assistant solicitor general raised . Youre black and youre not a lawyer. We dont hire nonlawyers. You dont allege in the complaint that youre a lawyer or that you graduated from law school or whatever. What happens in that . I assume in that instance that theres not sufficient allegations. Imagine a different example. Imagine someone files a complaint that says i went to a hotel to rent a room, and i was told that i was not going to get a room because none was available and also the hotel doesnt rent to blacks. Would you say yes because race is a motivating factor, but it doesnt allege, but for causation that wouldnt be enough and that it is an inappropriate if not an impossible standard. If i understand your answer to Justice Sotomayors question about ms. Rattners hypothetical, why is it that that fails under your view at the pleading stage . You would say that well, based on whatever the racial indication is in the letter that that may have been a motivating factor. If the complaint alleges that race is a motivating factor then that is sufficient. Even in the hypothetical the person is not a lawyer . The reason i answered Justice Sotomayor, it has to be plausible that the plaintiff can recover. If an element of the cause of action is not doesnt, then its not plausible and i think that would be the question what about the element of the cause of action would be absent in that hypothetical. I think the question is it plausible that the plaintiff was discriminated against on account of race i was just going to say, even though a white person would not have had that discriminatory in other words, denied an equal theyre not treated the same which is your theory and theyre treated differently on the race, with the subject of the racial and discriminatory comment and the other wasnt. Youre right. As youre spelling it out, if it was plausible that race was a motivating factor, that should be enough to dismiss. Why doesnt it also fit the but for test . I mean, you know, if he hadnt been black they would have rented it to them. Why on the same facts cant you put your bottom line and therefore, but for the Racial Discrimination. Whats the difference . The difference between the motivating factor and but for. There is an enormous difference. Motivating factor. Let me go back to the hypothetical that i gave to Justice Sotomayor. A hotel says to an individual that were not renting a room to you because we have no rooms and because youre black. Right. That doesnt allege that race was a but for cause. It does allege the tort case that every student studies, sumner versus rice. Excellent, head of the class. [ laughter ] in that case, two and they both shot the person and the two would have been sufficient. No tort answer ever said that doesnt fit the but for test even though literally it would have happened anyway, so what it seems to me is the other is a possible exception and i dont know why it would arent have take care of it. This court has so frequently drawn a distinction between motivating factor and but for causation because it matters so much. It is much harder to allege and prove but for causation than to allege that race is a motivating fa accountor and thats yet the pleading stages. Could you answer Justice Breyers question . Sure. Would arent the hypothetical youve given us satisfy the but for test . No, your honor. You disagree with the case . Was it tice . No, i dont agree with sumner versus tice. Thats good. Thats a start. The position that the opposing counsel has taken is that the complaint has to deny all alternative explanning as. No, no. Thats not the position thats, explored by Justice Breyer. Its just that it has to be possible that it caused the injury and isnt the hypothetical youve given us meet that standard . There are two contributing causes and theyre both under tort principles that have, you, would it be gis to explain it is person, its the left that know you could you and all he has it do is allege information and belief that he thinks this racial part of it was motivating and and now, tall call it motivating, or call it, but for, but he has to believe that and then we have to go on to whats actually difficult which is the burden shifting. Suppose we said Something Like that . No . Yes . If the answer is this complaints goes forward either way and the ninth cirque i was was correct i would accept that answer. [ laughter ] the legal rule doesnt matter. You just want to win. I want motivating factor is sufficient. Wouldnt it be unusual for us to say that the test for the pleading stage is motivating factor and the test at the trial or Summary Judgment is but for . Emphatically no, your honor. Why wouldnt it be unusual . Because this court in so many contexts has ultimately said but for while the pleading stage is a motivating factor. What we said in pricewaterhouse is motivating factor throughout. We havent made a special exception for pleading stage and Mcdonnell Douglas which you relied on earlier is the but for test and it has to plead a prima asia case, and but for causation or motivating factor, depending on the circumstances. No, your honor. It specifically says they do not need to plead a prima facie case. We can disagree over what sirkowitz said. Isnt it appropriate to apply different legal standards at different stage of the same case . No, your honor. Take constitutional cases like village of arlington heights. All thats required at the pleading stage is motivating factor, though in the very end, it would be but for causation and this is true under Mcdonnell Douglas and verdean. Whats required in the redeeming case im sorry. What if the complaint alleges this was not the but for cause of the action against me, but it was the but for against me. Yes, all thats require side motivating factor. Even if it concede, even if the plaintiff concedes in the complaint that it wasnt a but for cause . And even if but for cause is the standard at the end of the day, the case should be permitted to go forward toward its inevitable doom . Your honor, the whole point of the burden shifting framework is to be able to establish what was the actual cause. Its not realistic to say that the plaintiff that you have to allege that this was the but for cause and deny all other causes at that stage. But that seems very different from saying you have to allege a motivating cause. Its true that you cannot expect the plaintiff to negate Everything Else that might be in the defendants mind and this is prediscovery. The plaintiff isnt going to know Everything Else that could have been in the defendants mind, but as long as the plaintiff comes forward with sufficient allegations to say, given what i know, you know, this defend made a racist remark. This defendant gave contracts to white firms that were not as qualified as they were. Why do you have to label that anything . Why do you have to say those are the facts that at this stage of the litigation allowed the complaint to go forward . I think they should be, Justice Kagan. As i said to Justice Breyer earlier. All were saying is that those allegations should be sufficient and as Justice Alito pointed out, they allege those facts and it is fouvend in the Second Amendment complaint. Dont you think that the right sentence and im going to read you a sentence from the ninth circuit, and even if it was want a but for cause, a mraf can still prevail and not satisfy the pleading standard, prevail if she demonstrates that discriminatory intent was a factor in that decision so that seems wrong, right . But it wasnt the issue before the ninth circuit. The issue before the ninth circuit was solely about the pleading and here i direct you to the language that i referred to. Can i have an answer to Justice Kagans question before you proceed on to page whatever it is . Sure. I would be grateful to know. Doesnt dont you agree that the ninth circuit was wrong . What i was saying in terms of the state whether or not it would prevail and my i understand that. I understand that. Would you agree the 9th circuit was wrong, though . What i would say is what i said to Justice Kagans initial question, paterson versus mclean adopts the burden shifting of Mcdonnell Douglas ive got it. Were not going to get an answer. If we write an opinion, if we right an opinion that says in 1981 cases the plaintiff has the ultimate burden of persuasion to prove that race was a but for cause of the decision wye hacas vacate. Thats not the issue before this court. Isnt what Justice Kagan just read which influenced how the 9th circuit assessed the complaint if we articulate the right standard and then vacate for them to analyze the complaint under the right standard, wouldnt that be the better way to go . But the right standard for the complaint was to allege that race was a motivating factor . Whatever is the conclusion with regard to ultimateliey as the burden of persuasion and thats why i keep going back to what the 9th circuit actually held on 2a. We wouldnt be saying anything about the pleading stage under the hypothetical opinion. I just articulated and it would just be saying the ultimate burden of persuasion in the 1981 cases contrary to what the 9th circuit has said per Justice Kagans resertation. At the pleading stage motivating factor is sufficient, paterson versus mclean said the Mcdonnell Douglas burden shifting applies and it shifts the burden of production and not the burden of persuasion and that would deal with all that were talking about here. At least ive got in my head god, dont go further if i dont have it right. Smith says this man wouldnt contract with me. I know him. He is the most bigoted person in the state and he said all kinds of racist things and jumped up and down and so forth. By the way, hes my fifth cousin and he hates me, and ive never met anybody who hated me so much, and i think for both reasons he would have never entered into this contract. Now there we have two sufficient causes in the absence of the either and do you win under this statute or do you not, and if you, what you allege and i dont know if theres ever been a complaint like this, but if there were, and if you dont win, then why do you go further if you cant win . Your honor, because this court has said we dont want to determine at the pleading stage what was the actual cause. Thats a question do you think you do it or not . The two they win. Do they win here or not . If at the end the plaintiff concedes that he or she would have never gotten the contract anyway, i believe at the end under the standard adopting paterson versus mclean the plaintiff would not prevail. Im sorry, go ahead. But that doesnt tell us whats required at the pleading stage or the prima facie case. What were talking about what is or is not before us. It seems to me that the focus is on the availability of the burden shifting mechanism, right . Yes. Well thats not in the question presented either. Thats correct, your honor. I think the only reason that i go to the burden shifting was paterson versus mclean adopted the burden shifting and it answers many of the questions. The only issue before you on. Mr. Chemerensky the worst thing we can do is to apply it on the basis of Mcdonnell Douglas or pricewaterhouse which were trial burdens or Summary Judgment burdens. Why isnt it simple enough to say from the allegation its a reasonable conclusion that race was the but was the reason for the denial of a contract . Exactly, your honor. Thats all you need to say in this case. And i dont disagree with you potentially that in most circumstances you prove a motivating factor. That will be enough. Thats what i think my two colleagues have been saying. I hesitate to say some things are the worst things we can do. No, youre right. Weve done a lot worse. But if it is a reasonable conclusion, why have you so strenuously resisted alleging but for causation . Your honor, because we live in a world of multiple causes and we believe that all thats required by the plain language of the statute and by congresss broad remedial intent is that race be a motivating factor. We do actually allege but for causation in the complaint. If you look at the complaint itself and i can direct you to the specific paragraph of the complaint, it says but for causation in paragraph 103 of the complaint, it it is the denial of the contract was, quote, on account of race and the specific paragraphs in the complaint support that. We meet the requirement for but for causation. I think when you focus on the statutory language, when you focus on Congress Broad remedial purpose, it doesnt have the requirement and if the pleading on the prima faira case either. It strikes me as confusing to throw in a different causal standard for the pleading stage as opposed to the ultimate stage as oppose to saying at the pleading stage, not everyone will know everything and were going to not require too much in the way of of proof. I mean, youre suggesting that but for cause is sole cause. But for cause has never been sole cause. There can be three but for causes in the case. If you take away each of these three things the outcome would have been different, but motivating factor is something different. Motivating factor you can take out and the outcome would still be the same, and it seems quite confusing to me to put in something thats not the same question as the ultimate question at the pleading stage rather than to understand the pleadings are pleadings and before discovery and nobody can be expected to know what the defendant is going to say . I disagree, Justice Kagan. This court has repeatedly adopted a motivating standard pleading approach even though in the end its a but for cause standard. I go back to what i said to Justice Gorsuch, if you look at constitutional cases, with the village of arlington heights, and all thats required at the pleading stage is the motivating factor. Thats true to title 7 and its the motivating standard at the pleading stage. I think to acquire but for causation at the pleading stage we have an insurmountable burden and that was oconnells point of pricewaterhouse. These case e as you know, are not usually thrown out at the motion to dismiss stage and usually, you have the ultimate legal test in mind and you just look at the facts alleged in the complaint to see as Justice Sotomayor rightly said whether there is a way you can infer from those facts that you would ultimately need to test for 1981 or for discrimination and this is a helpful question for you. Isnt that just how it usually works . Yes. Yeah. Yeah. In other words, we shouldnt get in or why i guess im picking up on Justice Kagan now. Heres the legal test for 1981, go look at the packs alleged in the complaint and the facts and see whether they meet the standard and its pretty rare at least in my years, its pretty rare to throw one out at the motion to dismiss stage as long as it passes a pretty low bar. Thats exactly right and thats what the 9th circuit did if you read the opinion in this case. The 9th circuit says in the bottom page 2a that the only question before us is the pleadings and it says the standard is motivated factor pleadings and in the top of page 3 says that. The problem and im repeating myself and the problem is that they were assessing that arguably as Justice Kagan pointed out with the wrong test in mind and they had the right test in mind they still might allow the complaint to go forward and all this court has to say is that the 9th circuit is correct in saying that the pleading stage motivating factor is sufficient and perhaps you want to remand to assess whether or not they apply the standard and if you look at the top of page 3 of the opinion in this case, thats exactly what they did say. Theres plausible allegations here that race was a motivateing packer. You sa we do not believe its a requirement. We believe that the pleading stage all thats necessary is a motivating packe motivating factor. Theyre not arguing that but for cause, and they ale it anyway and were supposed to forget about that and instead address this slippery question which isnt even presented under your argument today. I agree with that. I think the only question present side the pleading stage. Its quite notable that the second question that this court did not grant cert on and that whether the plaintiff has the burden, and thats why were here today and when were arguing about and why it matters so much. All that is before this court is whether the ninth circuit correct that the pleading stage that race was the motivating factor and the denial of the contract. I know you didnt draft the complaint, but the complaint goes on and on and on with a lot of facts including an allegation that comcast entered into a racist conspiracy with the naacp, the National Union league, al sharpton and the National Action network, and do you think that had any effect on what the District Court did in grants dismissal with b6 . It should, because its not in the Second Amended complaint and the only operative complaint in the District Court and the matter now before this court was the Second Amended complaint and the Second Amended complaint alleges many facts that would support plausibly that race was the motivating factor in denying context and you alluded this on pages 3 through 5. These were things such as mr. Allen was told over many years things to do and he did those and didnt get the carriage. He was told that there was no bandwidth and they carried 80 whiteowned channels and that all of the channels that are carried by the other Cable Companies are carried by comcast except for mr. Allens channels. All of this is at least enough to allege that race is a motivating factor. But also enough to allege that the naacp and the National Urban league was in on the conspiracy. The only thing that was before the District Court in the matter before this court is the Second Amended complaint. What youre referring to here is not properly before the District Court and not properly before this court. In conclusion, ultimately this case comes down to two different conceptions of what must be pled. Our view is that it should be enough that race is a motivating factor. The other side is that race is the but for cause. When you think of Congress Broad remedial purposes in 1866, congress wanted then to open the door to claims with regard to race discrimination and contracting, not to close that door. Thank you. Thank you, counsel. Mr. Estrada, three minutes remaining. Thank you, mr. Chief justice. Let me start with the last question asked and the question given by counsel and i would refer the court starting at page 8 and paragraph 59 which is the Second Amended complaint which is the current complaint at issue where the complaint continues to allege that it works hand in glove with the federal government to excaught this races conspiracy and i would refer the court to paragraph 62, 64 and 65 which are in the pages following in which the current complaint goes on to allege that we paid off the signatories to the memorandum of understanding. It doesnt name them by name, and those were incorporated by reference and the court took judicial notice and obviously the signatories are named and they were the naacp and the urban league and al sharpton off the oldest organization in court and in the country to give us cover. The complaint goes on in paragraph 73 what to say that, we have a minority own network that are run by Magic Johnson and some homes which are some sort of artists and claims hes African American entertainers are to be signed up with comcast to be discovered for Racial Discrimination and in the period of the complaint is 2005 to february 2015 when the complaint was filed. In a nutshell, the complaint is that comcast engaged in a racist plot with the oldest civil rights would be oldest Civil Rights Organization in the country and with Magic Johnson. If that actually in any planet satisfies, i dont know how many paragraphs this has with mr. Kavanaugh, they could have 100 paragraphs but if any planet that satisfies the possibility under eight paul, the Civil Justice will be real problems. If i could go back to the question because they asked alito earlier about the allegations that are listed in those pages, the thing i wanted to make clear with respect to the settlement and was became clear and covered by the complaint which is 2008 and february 2015. That the carriage would direct which was the largest in the country, 25 million are so is post stating the event in the complaints of the allegations that our current complaints and demands was made sure by reference to this carriage is one that was in the face of a settlement that was in this litigation. We asked for a notice of the fact that these companies were all pending in the district of california and has had some bearing on the fact that this fall up the turnip truck and a motion to dismiss. Back to council, the cases submitted. I am brian finley, im the president and ceo here at