21 F.4th 535
9th Cir.2021Background
- Hodges, a former Comcast cable subscriber in California, filed a putative class action alleging Comcast violated the Cable Act and CIPA by collecting and failing to disclose/destroy personally identifiable viewing/demographic data; he sought damages and multiple forms of statewide injunctive relief.
- Each relevant Subscriber Agreement contained a non-severable arbitration clause with a broad "Waiver of Class Actions and Collective Relief" forbidding representative or class relief in any forum.
- Comcast moved to compel arbitration; the district court denied the motion, concluding Hodges sought “public injunctive relief” and that McGill v. Citibank made contractual waivers of such relief unenforceable under California law.
- This Court stayed the case pending its decision in Blair v. Rent-A-Center and, after Blair held the FAA did not preempt McGill (as narrowly construed), considered whether Hodges’ complaint actually sought non-waivable public injunctive relief.
- The Ninth Circuit majority concluded Hodges’ requested injunctions target Comcast subscribers (a discrete group) and would require individualized inquiry to administer, so they are private, not McGill-protected public injunctive relief; it reversed the district court and ordered arbitration compelled.
- The panel also rejected (or held preempted) the broader readings in Mejia and Maldonado that would treat virtually any forward-looking injunction as non-waivable public relief.
Issues
| Issue | Plaintiff's Argument (Hodges) | Defendant's Argument (Comcast) | Held |
|---|---|---|---|
| Whether Hodges’ complaint seeks “public injunctive relief” under McGill | The complaint seeks statewide public injunctive relief to protect the public’s privacy rights | The relief is directed at Comcast subscribers (a discrete group) and would require individualized administration, so it is not public | Held: Not public injunctive relief—claims target a discrete class (subscribers) and would require individualized inquiries, so McGill does not apply |
| Whether the McGill rule is preempted by the Federal Arbitration Act | McGill is a valid state-law protection against waivers of public injunctive relief | FAA preempts state rules that effectively bar bilateral arbitration of claims | Held: FAA does not preempt McGill as narrowly defined (reaffirming Blair) |
| Whether Mejia and Maldonado properly expand McGill to cover any forward-looking injunction | Mejia/Maldonado support treating forward-looking prohibitions as public injunctions | Those cases misread McGill and, insofar as they broadly bar waivers of complex prospective relief, are preempted by the FAA | Held: Mejia/Maldonado overbroad; CA Supreme Court likely would not follow them, and their broader rule would be preempted by the FAA |
| Whether the arbitration provision must be enforced | McGill makes the waiver unenforceable because plaintiff seeks public injunctive relief | Arbitration clause is enforceable because no non-waivable public injunctive relief is sought | Held: Arbitration must be compelled; district court’s denial reversed |
Key Cases Cited
- McGill v. Citibank, N.A., 2 Cal.5th 945 (Cal. 2017) (California rule: contractual waiver of the right to request public injunctive relief in any forum is unenforceable)
- Blair v. Rent-A-Center, Inc., 928 F.3d 819 (9th Cir. 2019) (FAA does not preempt McGill as narrowly construed; public injunctions compatible with bilateral arbitration)
- Kilgore v. KeyBank, N.A., 718 F.3d 1052 (9th Cir. 2013) (injunctions benefiting a specific, limited group are private relief; Broughton–Cruz rule analysis)
- AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (U.S. 2011) (federal policy favoring arbitration; defenses that target arbitration differently from other contracts are preempted)
- Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662 (U.S. 2010) (bilateral arbitration’s streamlined procedures and limits on procedural complexity)
- Mejia v. DACM Inc., 268 Cal. Rptr. 3d 642 (Cal. Ct. App. 2020) (state court decision broadly treating certain forward-looking contract-term injunctions as public; Court of Appeals ruling criticized by majority)
- Maldonado v. Fast Auto Loans, Inc., 275 Cal. Rptr. 3d 82 (Cal. Ct. App. 2021) (similar Court of Appeal expansion of McGill; majority treats portions as erroneous/preempted)
- Broughton v. Cigna Healthplans of Cal., 988 P.2d 67 (Cal. 1999) (early articulation distinguishing public from private injunctive relief)
- Cruz v. PacifiCare Health Sys., Inc., 66 P.3d 1157 (Cal. 2003) (public injunctive relief paradigm involving false advertising)