Opinion
Case No. 18-cv-01829-HSG
07-18-2019
BRANDON HODGES, Plaintiff, v. COMCAST CABLE COMMUNICATIONS, LLC, Defendant.
ORDER DENYING MOTION TO COMPEL ARBITRATION
Re: Dkt. No. 7
Pending before the Court is Defendant Comcast Cable Communications, LLC ("Comcast")'s motion to compel arbitration, briefing for which is complete. Dkt. Nos. 7, 18, 19. On September 6, 2018, the Court held a hearing on the motion, after which the Court stayed the case pending guidance from the Ninth Circuit in four appeals—McArdle v. AT&T Mobility LLC, (No. 17-17246), Blair v. Rent-A-Center., Inc., (No. 17-17221), Tillage v. Comcast Corp., (No. 18-15288), and Roberts v. AT&T Mobility LLC, (No. 18-15593)—concerning whether the Federal Arbitration Act ("FAA") preempts the rule announced by the California Supreme Court in McGill v. Citibank, N.A., 393 P.3d 85 (Cal. 2017) that an agreement purporting to waive a plaintiff's rights to pursue public injunctive relief in any forum is unenforceable under California law. See Dkt. No. 44. The Ninth Circuit recently provided such guidance, ruling in three of the four cases. See Blair v. Rent-A-Ctr., Inc, No. 17-17221, 2019 WL 2701333 (9th Cir. June 28, 2019); Tillage v. Comcast Corp., No. 18-15288, 2019 WL 2713292 (9th Cir. June 28, 2019); McArdle v. AT&T Mobility LLC, No. 17-17246, 2019 WL 2718474 (9th Cir. June 28, 2019).
As unpublished Ninth Circuit decisions, Tillage and McArdle are not precedent, but can be considered for their persuasive value. See Fed. R. App. P. 32.1; CTA9 Rule 36-3. --------
In keeping with the Ninth Circuit's rulings, the Court denies Defendant's motion to compel arbitration. The Ninth Circuit held not only that the FAA does not preempt the McGill rule but also upheld a district court's finding that an arbitration clause drafted by Comcast that is substantively identical to the one at issue in this case violated McGill's rule and was thus unenforceable. See Blair, 2019 WL 2701333, at *9 ("We hold that the FAA does not preempt the McGill rule."); Tillage, 2019 WL 2713292, at *1 (affirming the district court's finding that the agreement "purports to waive plaintiffs' rights to pursue public injunctive relief in any forum and so is unenforceable under California law"). The Ninth Circuit's affirmance in Tillage is particularly relevant here, as the court there rejected nearly all of the arguments Comcast presents here to support compelling arbitration. Compare Dkt. No. 19 at 5-14 (arguing that the FAA preempts the McGill rule, and that an opt-out clause precludes McGill's application), with Tillage, 2019 WL 2713292, at *1 (rejecting both arguments). And Comcast's only other remaining argument is foreclosed by Blair. Compare Dkt. No. 19 at 3-5 (arguing that McGill does not apply because Plaintiff only asserts claims for public injunctive relief under the UCL, CIPA, and the Cable Act), with Blair, 2019 WL 2701333, at *2 (finding that it was sufficient for the plaintiffs to seek a "public injunction" under, among other statutes, the UCL).
The motion to compel is thus DENIED. Further, the stay that was ordered on November 16, 2018 is lifted. The Court SETS a case management conference on August 13, 2019 at 2:00 p.m. A joint case management statement is due by August 6, 2019.
IT IS SO ORDERED. Dated: 7/18/2019
/s/_________
HAYWOOD S. GILLIAM, JR.
United States District Judge