Hicks v. Netflix, Inc.

• Citation: 472 F.Supp.3d 763
• Decision Date: 15 July 2020
• Docket Number: Case No.: CV 19-10452-AB (MAAx)
• Parties: Monique HICKS v. NETFLIX, INC., et al.
• Court: U.S. District Court — Central District of California

472 F.Supp.3d 763

Monique HICKS

v.NETFLIX, INC., et al.

Case No.: CV 19-10452-AB (MAAx)

United States District Court, C.D. California.

Filed July 15, 2020

David M. Derubertis, Garen Nadir, DeRubertis Law Firm APC, Studio City, CA, Michael W. Parks, Arya Rhodes, Alan I. Schimmel, Schimmel and Parks APLC, Sherman Oaks, CA, for Monique Hicks.

Emma Luevano, Louise Truong, Lucia Esperanza Coyoca, Mitchell Silberberg and Knupp LLP, Crystal Nix-Hines, Jeanine Zalduendo, Kevin Lawrence Jones, Rebecca Eileen Davis, Quinn Emanuel Urquhart and Sullivan LLP, Los Angeles, CA, for Netflix, Inc.

Proceedings: [In Chambers] Order Denying Defendant's Second Motion to Dismiss Plaintiff's First Amended Complaint (Dkt. No. 37)

The Honorable ANDRÉ BIROTTE JR., United States District Judge

Before the Court is Defendant Netflix, Inc.'s ("Defendant" or "Netflix") Second Motion to Dismiss three retaliation-based claims from the First Amended Complaint ("FAC") filed by Monique Hicks ("Plaintiff" or "Mo'Nique"). ("MTD," Dkt. No. 37). Plaintiff filed an Opposition thereto, ("Opp'n," Dkt. No. 44), and Defendant filed a Reply, ("Reply," Dkt. No. 45).

For the reasons below, Defendant's Motion is DENIED.

I. BACKGROUND

A. Factual Background

Plaintiff Monique Hicks (professionally known as "Mo'Nique") brings the instant lawsuit alleging that, because of her race and gender, Netflix discriminated against her by offering her less money to perform a one-hour comedy special than it offered other comedians. Mo'Nique further alleges that, after she objected to her "discriminatory low-ball offer," which Netflix later confirmed was an "opening offer," Netflix retaliated against her when it "dug its heels in the ground" and refused to negotiate fair pay with her. (First Amended Complaint ("FAC"), Dkt. No. 33 at ¶¶ 4, 62). The following factual allegations are taken from the FAC.

i. Netflix's emergence as a dominating force in the stand-up comedy industry

Netflix is a world-leading Internet-based entertainment services provider. (FAC ¶ 37). Netflix's primary business is its subscription-based streaming service, with more than 158 million paid subscribers in over 190 countries. (Id. ). The service offers its members online streaming of film and television programs, including original content that Netflix produces in-house. (Id. ). As part of its original content creation, Netflix commissions comedians to produce and star in stand-up comedy specials and has emerged "as a dominating force that is disrupting the [stand-up comedy] industry." (Id. ¶ 40).

ii. Mo'Nique's background as the "Queen of Comedy"

Mo'Nique is an Oscar-winning actress who has led a successful career as both a stand-up comic and actress. (Id. ¶¶ 46–47). She has also won awards from the Screen Actors Guild, Sundance Film Festival, BET, and NAACP, among many others. (Id. ¶¶ 48–49). While climbing the Hollywood ranks, performing in a variety of genres, and hosting shows, Mo'Nique never strayed too far from her comedic roots. (Id. ¶¶ 50–55). One of her most notable performances to date is when she starred in the hit stand-up comedy film, The Queens of Comedy , which follows four Black female stand-up comedians at Memphis, Tennessee's Orpheum Theatre. (Id. ¶ 50).

iii. Netflix's allegedly discriminatory "opening offer" to Mo'Nique

In late 2017, after Netflix executives attended one of Mo'Nique's live stand-up shows, they began to recruit her for a Netflix original stand-up program. (Id. ¶¶ 57–58). Following a series of conversations between Mo'Nique and her representatives and Netflix's representatives, on January 11, 2018, Netflix extended an offer to Mo'Nique to produce and perform in a one-hour comedy special, for which she would be paid a $500,000 "talent fee." (Id. ¶ 60). Mo'Nique claims that this pay proposal was discriminatory based on her race and gender, especially in light of multi-million dollar offers Netflix has made to other comedic talent, namely Jerry Seinfeld, Eddie Murphy, Dave Chapelle ("Chapelle"), Chris Rock ("Rock"), Ellen DeGeneres, Jeff Dunham, Ricky Gervais, and Amy Schumer ("Schumer"). (Id. ¶¶ 67–68). Overall, she alleges that Netflix made offers to other comedic talent to perform in similar stand-up shows, but, when the talent was not a Black woman, Netflix paid astronomically more than it did to Black women like her. (Id. ¶ 67).

iv. Netflix's alleged retaliation against Mo'Nique for challenging her offer as discriminatory

After receiving her offer, Mo'Nique alleges that, both personally and through her representatives, she objected to its terms, calling out Netflix for discriminating against Black women. (Id. ¶ 70). Initially, Mo'Nique's representatives wrote to Netflix's executives, pleading that they reconsider the "racially and gender biased offer" and questioning "what makes Mo'Nique, who has been labeled a living legend based on her awards from around the world ... worth $12,500,000 less than Amy Schumer to [Netflix]?" (Id. ¶ 71). Mo'Nique's representatives pointed out that her Black male counterparts were paid seven million dollars more per show than Schumer to emphasize that it made no sense for Mo'Nique to be offered only $500,000 for similar work. Mo'Nique maintains that this email "responded to the ‘opening offer’ by counter-offering with alternative amounts" of pay received by other comedians. (Id. ). Netflix responded that it took "very seriously" the concerns raised in the email and agreed to set up a call. (Id. ¶ 72).

On January 17, 2018, Mo'Nique's representatives had a call with, among others, Robbie Praw ("Praw"), Netflix's Director of Original Stand-up Comedy Programming. (Id. ¶ 73). During this call, Mo'Nique's representatives again asked how Netflix had arrived at its pay valuation for Mo'Nique compared to others, reiterating that she viewed her offer as discriminatory based on her race/color and gender. (Id. ). In explaining why the offer was so low in their view, Mo'Nique's representatives reviewed some of Mo'Nique's body of work and her history of success, to which Netflix responded that it does not look at "résumés" or "bodies of work to arrive at pay offers, but rather uses an "assumptive approach." (Id ).

On the call, Praw allegedly justified paying Schumer (a White woman) twenty-six times more than Mo'Nique for the same one-hour comedy special on grounds that Schumer had sold out Madison Square Garden and had a recent movie released. (Id ). Mo'Nique's representatives replied that Netflix was citing Schumer's "résumé" or "body of work" to justify Schumer's pay, but refused to look at Mo'Nique's to make her a fair pay offer. (Id. ). Purportedly pressed repeatedly, Praw stated that based on its "internal data" Netflix uses an "assumptive approach" or "anticipatory approach" and "had a process and that's the way we do it" in determining compensation. (Id. ). Based on this, Mo'Nique maintains that Netflix "steadfastly refus[ed] to negotiate reasonable terms or reconsider the lowball, discriminatory offer." (Id. ). She further asserts that, in "refus[ing] to engage in any negotiation" and "present[ing] its offer on ‘take it or leave it’ terms[,]" Netflix "departed from its regular practice of negotiating in good faith including by offering more favorable compensation terms through negotiation." (Id. ¶ 75).

(1) Netflix's alleged standard negotiation process after extending opening offers

Mo'Nique alleges that when it comes to the type of offer Netflix made to her, "Netflix has a regular, customary and standard practice of negotiating in good faith that typically results in increased monetary compensation beyond the ‘opening offer.’ " (Id. ¶ 62). As Mo'Nique explains, Netflix typically begins the negotiation with an "opening offer" (including "opening" monetary terms), but under the company's regular practice, this initial offer is not the expected end result of the negotiation. (Id. ). Rather, Netflix presents its "opening offer" with an expectation—held by both Netflix and the recipient of the offer—that the negotiation will lead to increased monetary terms. (Id. ¶¶ 63–64). And Netflix confirmed, after Mo'Nique filed this lawsuit, that its offer to Mo'Nique was merely its "opening offer." (Id. ¶ 63).

Mo'Nique provides that this practice of a negotiated end point is standard in the industry and standard specifically within Netflix, and that this was known to her when she was in negotiations with Netflix. (Id. ¶ 62). She alleges that, by confirming that its offer to her was just its "opening offer," and not its "take-it-or-leave-it final offer," Netflix itself has implicitly acknowledged that there was a likelihood of increased compensation to her, had the negotiation process continued through Netflix's standard process. (Id. ¶ 63). Specifically, Mo'Nique alleges that "once [she] engaged in protected conduct by protesting the discriminatory offer, Netflix shut down any further negotiations and refused to negotiate in good-faith consistent with its standard practices, thereby denying [her] equal terms, conditions, privileges, and benefits of employment." (Id. ¶ 64). Had Netflix not shut down continued negotiations, Mo'Nique alleges that "Netflix would have made [her] increased offer(s) that would have led to substantial and material increases in the monetary compensation" she was offered. (Id. ¶ 65).

(2) Netflix's alleged continuation of negotiations with other non-Black talent that led to increased offers

Mo'Nique alleges that, "in other similar situations involving men and Caucasians, Netflix has negotiated increased offers." (Id. ¶ 75). She specifically alleges that Schumer leveraged the fact that Netflix offered significantly higher compensation to Chapelle and Rock to increase her offer to $13,000,000.00, an increase of more than fifteen percent of her original offer. (Id. ¶ 67).

v. Mo'Nique went public about her offer and allegedly discovered another Black female comedian was given a "low-ball" offer

At some time after the January 17, 2018 call with Netflix's...