Brandon Hodges v. Comcast Cable Communications

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRANDON HODGES, No. 19-16483

Plaintiff-Appellee,

D.C. No.

v. 4:18-cv-01829-

HSG

COMCAST CABLE COMMUNICATIONS,

LLC, a Delaware limited liability

company, OPINION

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of California

Haywood S. Gilliam, Jr., District Judge, Presiding

Argued and Submitted June 1, 2020

Portland, Oregon

Filed September 10, 2021

Before: Marsha S. Berzon, Daniel P. Collins, and

Lawrence VanDyke, Circuit Judges.

Opinion by Judge Collins;

Dissent by Judge Berzon

2 HODGES V. COMCAST

SUMMARY *

Arbitration

The panel reversed the district court’s order denying

Comcast Cable Communications, LLC’s motion to compel

arbitration under the Federal Arbitration Act of the claims

asserted against it by former cable subscriber Brandon

Hodges, and remanded with instructions to grant the motion.

Hodges brought a putative class action challenging

certain of Comcast’s privacy and data-collection practices

and seeking a variety of monetary and equitable remedies.

Comcast moved to compel arbitration pursuant to Hodge’s

subscriber agreements. The district court held that, because

Hodges’ complaint sought “public injunctive relief” as one

of its requested remedies, the complaint implicated

California’s McGill rule, under which an arbitration

provision that waives the right to seek “public injunctive

relief” in all forums is unenforceable.

The panel held that the applicability of the McGill rule

depends upon whether a complaint includes a claim for

public injunctive relief. Taking into account Blair v. Rent-

A-Center, Inc., 928 F.3d 819 (9th Cir. 2019) (holding that

the Federal Arbitration Act does not preempt the McGill

rule), the panel held that, under California law, non-waivable

public injunctive relief is limited to forward-looking

injunctions that seek to prevent future violations of law for

the benefit of the general public as a whole, as opposed to a

*

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

HODGES V. COMCAST 3

particular class of persons, and that do so without the need

to consider the individual claims of any non-party.

Declining to rely on Mejia and Maldonado, recent California

Court of Appeal decisions broadening the McGill rule, the

panel concluded that these decisions rested on such a patent

misreading of California law that they would not be followed

by the California Supreme Court.

The panel concluded that under the above standard,

Hodges’ complaint did not seek public injunctive relief.

Accordingly, the McGill rule was not implicated, and the

arbitration agreement should have been enforced.

Dissenting, Judge Berzon wrote that she disagreed with

the majority’s conclusion, contrary to the court’s precedent

and to recent decisions of the California Court of Appeal,

that a forward-looking injunction protecting the privacy

rights of millions of cable consumers was not “public

injunctive relief” under California state law.

COUNSEL

Mark A. Perry (argued) and Joshua M. Wesneski, Gibson

Dunn & Crutcher LLP, Washington, D.C.; Michael W.

McTigue Jr. and Meredith C. Slawe, Akin Gump Strauss

Hauer & Feld LLP, Philadelphia, Pennsylvania; Michael J.

Stortz, Akin Gump Strauss Hauer & Feld LLP, San

Francisco, California; for Defendant-Appellant.

Karla Gilbride (argued), Public Justice P.C., Washington,

D.C.; Ray Gallo, Gallo LLP, San Francisco, California;

Hank Bates and David Slade, Carney, Bates & Pulliam

PLLC, Little Rock, Arkansas; for Plaintiff-Appellee.

4 HODGES V. COMCAST

OPINION

COLLINS, Circuit Judge:

Comcast Cable Communications, LLC (“Comcast”)

appeals the district court’s denial of its motion to compel

arbitration of the claims asserted against it by former cable

subscriber Brandon Hodges. Hodges brought this putative

class action challenging certain of Comcast’s privacy and

data-collection practices and seeking a variety of monetary

and equitable remedies. The district court held that, because

Hodges’ complaint sought “public injunctive relief” as one

of its requested remedies, the complaint implicated the so-

called “McGill rule,” under which a contractual provision

that waives the right to seek “public injunctive relief” in all

forums is unenforceable. McGill v. Citibank, N.A., 393 P.3d

85, 87 (Cal. 2007). The parties did not dispute that, if the

relief Hodges seeks is classified as public injunctive relief,

the non-severable arbitration provisions of Hodges’

subscriber agreements with Comcast did seek to waive that

public injunctive relief in any forum. Accordingly, the

district court held that those provisions were unenforceable

under McGill. We conclude that the district court

misconstrued what counts as “public injunctive relief” for

purposes of the McGill rule and that it therefore erred in

concluding that the complaint here sought such relief.

Because Hodges’ complaint did not seek such relief, the

McGill rule is not implicated, and the arbitration agreement

should have been enforced. We therefore reverse the district

court’s denial of Comcast’s motion to compel.

I

Between October 2015 and January 2018, Hodges

subscribed to Comcast’s cable television services at his

home in Oakland, California. In February 2018, Hodges

HODGES V. COMCAST 5

filed a complaint in California state court on behalf of a

putative class of California residential Comcast subscribers,

alleging that Comcast violated class members’ statutory

privacy rights in collecting “data about subscribers’ cable

television viewing activity” as well as “personally

identifiable demographic data about its subscribers.”

Specifically, Hodges alleged that Comcast violated the

Cable Communications Policy Act of 1984 (“Cable Act”),

by (1) failing to clearly inform subscribers of how long

Comcast would keep such information; (2) failing to provide

subscribers with access to this information upon request; and

(3) failing to obtain subscribers’ consent before gathering

information about viewing activity. See 47 U.S.C.

§ 551(a)(1)(C), (b), (d). Hodges also alleged that Comcast

violated the California Invasion of Privacy Act (“CIPA”), by

(1) failing to obtain subscribers’ consent before using its

cable boxes to collect viewing activity; and (2) failing to

disclose, within 30 days of a subscriber request,

“individually identifiable subscriber information” Comcast

had collected. CAL. PEN. CODE § 637.5(a)(1), (d). In

addition, Hodges asserted that the same five violations of the

Cable Act and CIPA constituted “unlawful” business

practices, thereby giving rise to a derivative cause of action

under California’s unfair competition law (“UCL”), CAL.

BUS. & PROF. CODE § 17200 et seq. On behalf of himself

and the putative class, Hodges sought liquated, statutory, and

punitive damages; seven specified forms of “statewide

public injunctive relief”; and attorney’s fees.

Comcast removed the case to the U.S. District Court for

the Northern District of California based on federal question

jurisdiction, see 28 U.S.C. § 1331, and diversity jurisdiction

under the Class Action Fairness Act, id. § 1332(d). Noting

that each version of Hodges’ various “Subscriber

Agreements” with Comcast contained an arbitration

6 HODGES V. COMCAST

provision, Comcast then moved to compel arbitration.

Hodges opposed the motion, arguing that the arbitration

provision was unenforceable under McGill because its non-

severable “Waiver of Class Actions and Collective Relief”

impermissibly deprived Hodges of the right to pursue public

injunctive relief in any forum. 1 In reply, Comcast argued

that McGill was inapplicable because Hodges was not

seeking public injunctive relief and that, in any event, the

McGill rule is preempted by the Federal Arbitration Act

(“FAA”).

Because the question of whether McGill was preempted

by the FAA had already been raised in several cases before

this court, the district court stayed the case pending our

1

For example, the final agreement Hodges received in January

2018, when he terminated his cable service but continued internet service

with Comcast, included the following language (which is reproduced

here without its use of all capitalization):

Waiver of Class Actions and Collective Relief.

There shall be no right or authority for any claims to

be arbitrated or litigated on a class action, joint or

consolidated basis or on bases involving claims

brought in a purported representative capacity on

behalf of the general public (such as a private attorney

general), other subscribers, or other persons. The

arbitrator may award relief only in favor of the

individual party seeking relief and only to the extent

necessary to provide relief warranted by that

individual party’s claim. The arbitrator may not award

relief for or against anyone who is not a party. The

arbitrator may not consolidate more than one person’s

claims, and may not otherwise preside over any form

of a representative or class proceeding. This waiver of

class actions and collective relief is an essential part of

this arbitration provision and cannot be severed from

it.

HODGES V. COMCAST 7

resolution of that issue. After we held in Blair v. Rent-A-

Center, Inc., 928 F.3d 819, 822 (9th Cir. 2019), that the FAA

did not preempt the McGill rule, the district court denied

Comcast’s motion to compel arbitration. Comcast filed an

interlocutory appeal challenging the district court’s ruling,

and we have jurisdiction pursuant to 9 U.S.C. § 16(a)(1)(B).

II

Section 2 of the FAA provides that

[a] written provision in . . . a contract . . . to

settle by arbitration a controversy thereafter

arising out of such contract . . . shall be valid,

irrevocable, and enforceable, save upon such

grounds as exist at law or in equity for the

revocation of any contract.

9 U.S.C. § 2. The Supreme Court has “described this

provision as reflecting both a liberal federal policy favoring

arbitration and the fundamental principle that arbitration is a

matter of contract.” AT&T Mobility LLC v. Concepcion,

563 U.S. 333, 339 (2011) (citations omitted). “In line with

these principles, courts must place arbitration agreements on

an equal footing with other contracts and enforce them

according to their terms.” Id. (simplified). The final clause

of § 2—the “saving clause”—confirms that arbitration

agreements, like any other contract, can be invalidated on

generally applicable grounds “for the revocation of any

contract.” 9 U.S.C. § 2. But arbitration agreements may not

be invalidated “by defenses that apply only to arbitration or

that derive their meaning from the fact that an agreement to

arbitrate is at issue.” Concepcion, 563 U.S. at 339.

This case involves one such ground for contractual

invalidation under California law, viz., the so-called “McGill

8 HODGES V. COMCAST

rule.” Under that rule, insofar as a contractual provision

“purports to waive [a party’s] right to request in any forum

. . . public injunctive relief, it is invalid and unenforceable

under California law.” McGill, 393 P.3d at 94. We held in

Blair that “the FAA does not preempt the McGill rule,”

928 F.3d at 830–31, and we therefore reject Comcast’s

contrary arguments here. The only remaining question

before us, then, is whether Comcast’s enforcement of the

Subscriber Agreement in this case violates the McGill rule.

We conclude that, because Hodges’ complaint does not seek

public injunctive relief, the McGill rule is not implicated and

that rule therefore does not bar enforcement of the arbitration

provision.

A

As an initial matter, Hodges argues that, in addressing

whether the McGill rule is implicated in this case, it is

irrelevant whether his complaint “actually includes a claim”

for public injunctive relief. All that matters, in his view, is

whether the Subscriber Agreement’s language theoretically

purports to waive public injunctive relief in any case. This

argument is foreclosed by McGill itself. In addressing

whether the contract in that case was unenforceable, the

California Supreme Court stated that, in “answering this

question, we first conclude that McGill’s complaint does, in

fact, appear to seek . . . public injunctive relief.” 393 P.3d

at 90 (emphasis added). And in Mejia v. DACM Inc.,

268 Cal. Rptr. 3d 642 (Cal. Ct. App. 2020), the California

Court of Appeal likewise began its analysis of the

applicability of the McGill rule by addressing whether the

operative complaint actually sought public injunctive relief

in the first place. See id. at 650–53 (holding that the

complaint did seek such relief and that McGill invalidated

the arbitration provision).

HODGES V. COMCAST 9

The same conclusion follows from our decision in

Kilgore v. KeyBank, N.A., 718 F.3d 1052 (9th Cir. 2013) (en

banc). In Kilgore, we held that it was unnecessary to reach

the particular FAA preemption question presented there

precisely because the plaintiffs’ requested injunctions in that

case did not qualify as public injunctive relief. 718 F.3d

at 1060–61. Kilgore involved the distinct “Broughton-Cruz

rule,” id. at 1060, under which “[a]greements to arbitrate

claims for public injunctive relief” under certain California

consumer statutes “are not enforceable in California,”

McGill, 393 P.3d at 90. 2 Under Hodges’ flawed view of

California law, the mere presence of a requirement to

arbitrate public injunctive relief in a contract should have

been enough to invalidate the arbitration provision in

Kilgore under the Broughton-Cruz rule—meaning that the

ability to compel arbitration in Kilgore could not depend

upon whether public injunctive relief was actually being

requested in that case. But we held exactly the opposite,

concluding that the particular injunctions being sought by

the plaintiffs in Kilgore did not involve public injunctive

relief; that the Broughton-Cruz rule therefore was not

implicated; that we therefore did not need to decide whether

that rule was preempted by the FAA; and that arbitration was

required. Kilgore, 718 F.3d at 1060–61. 3 The California

Court of Appeal followed the same approach in another case

2

The rule’s name derives from the pair of cases that established it,

namely, Broughton v. Cigna Healthplans of California, 988 P.2d 67, 76

(Cal. 1999), and Cruz v. PacifiCare Health Systems, Inc., 66 P.3d 1157,

1164–65 (Cal. 2003).

3

We later held that, given the fact that the Broughton-Cruz rule

applied only to arbitration agreements, it was not a generally applicable

ground for invalidating a contract and was therefore preempted by the

FAA. See Blair, 928 F.3d at 827; Ferguson v. Corinthian Colleges, Inc.,

733 F.3d 928, 934 (9th Cir. 2013).

10 HODGES V. COMCAST

addressing the applicability of the Broughton-Cruz rule. See

Clifford v. Quest Software Inc., 251 Cal. Rptr. 3d 269, 276–

78 (Cal. Ct. App. 2019) (concluding that the relevant cause

of action did not seek public injunctive relief and that

arbitration therefore could be compelled without addressing

whether the Broughton-Cruz rule was preempted).

The applicable precedent thus forecloses Hodges’

argument that courts should stretch to invalidate contracts

based on hypothetical issues that are not actually presented

in the parties’ dispute. We therefore turn to whether

Hodges’ complaint requests public injunctive relief within

the meaning of the McGill rule.

B

We begin by setting forth the standards for what

constitutes non-waivable public injunctive relief under

California law. In addressing that question, we “‘are bound

by decisions of the state’s highest court,’” Alliance for Prop.

Rights & Fiscal Responsibility v. City of Idaho Falls,

742 F.3d 1100, 1103 (9th Cir. 2013) (citation omitted), and

in deciding any unresolved or unclear questions of state law,

we are guided by the principles that the state high court has

articulated, id. In construing the substantive scope of

McGill’s contract-invalidation rule, we also cannot lose sight

of the critical limitations on that rule that saved it from

preemption as a matter of federal law in Blair. We review

all questions of law de novo. United States v. Robertson,

980 F.3d 672, 675 (9th Cir. 2020).

1

McGill derived its rule against waiver of public

injunctive relief from California Civil Code § 3513, which

provides: “Any one may waive the advantage of a law

HODGES V. COMCAST 11

intended solely for his benefit. But a law established for a

public reason cannot be contravened by a private

agreement.” See 393 P.3d at 93–94. Because the primary

consumer protection laws at issue in McGill—i.e., the UCL;

the Consumers Legal Remedies Act (“CLRA”), CAL. CIV.

CODE § 1750 et seq.; and California’s false advertising law,

CAL. BUS. & PROF. CODE § 17500 et seq.—all authorize

injunctive relief that is primarily “for the benefit of the

general public,” Broughton, 988 P.2d at 78 (making this

point as to the CLRA); see also Cruz, 66 P.3d at 1164–65

(same as to the UCL and the false advertising law), the

McGill court held that any waiver of the “right to request in

any forum such public injunctive relief . . . is invalid and

unenforceable under California law.” 393 P.3d at 94.

Consistent with California Civil Code § 3513’s

distinction between relief for the benefit of private

individuals and relief for the benefit of the general public as

a whole, McGill explained that California law

distinguished between private injunctive

relief—i.e., relief that primarily resolves a

private dispute between the parties and

rectifies individual wrongs and that benefits

the public, if at all, only incidentally—and

public injunctive relief—i.e., relief that by

and large benefits the general public and that

benefits the plaintiff, if at all, only

incidentally and/or as a member of the

general public.

393 P.3d at 89 (simplified). In further describing the sort of

“public injunctive relief” that is not subject to waiver under

California law, the California Supreme Court in McGill

emphasized three key features.

12 HODGES V. COMCAST

First, the Court stated that public injunctive relief “has

‘the primary purpose and effect of’ prohibiting unlawful acts

that threaten future injury to the general public.” McGill,

393 P.3d at 90 (emphasis added) (citation omitted). Thus, in

contrast to relief aimed at “redressing or preventing injury”

to a person or group of persons, id., forward-looking relief

that generally aims to prevent unlawful conduct in the future

is more likely to be characterized as reflecting statutory

rights that are “established for a public reason.” CAL. CIV.

CODE § 3513.

Second, the McGill court emphasized that a request for

public injunctive relief “does not constitute the pursuit of

representative claims or relief on behalf of others,” nor does

it involve “prosecut[ing] actions on behalf of the general

public.” 393 P.3d at 92–93 (simplified) (emphasis added).

The court made this observation in the course of explaining

why Proposition 64’s amendments to the UCL did not

eliminate the ability of a private plaintiff to seek public

injunctive relief under that statute. Proposition 64 stated that

UCL actions on behalf of the general public could be brought

by “only the California Attorney General and local public

officials,” Prop. 64, § 1(f), and it further prohibited any

private representative actions other than class actions, see

CAL. BUS. & PROF. CODE § 17203. The McGill court held

that these limitations did not affect the ability of a private

UCL plaintiff to request public injunctive relief, because

such relief did not require any such representative action,

either on behalf of a class or the general public. Rather, as

the court explained, the requirement that an “‘action be

brought as a class action’” has “never been imposed with

regard to requests to enjoin future wrongful business

practices that will injure the public.” 393 P.3d at 93 (citation

omitted).

HODGES V. COMCAST 13

Third, the court relatedly drew a sharp distinction with

respect to ascertainability between the beneficiaries of

private and public injunctive relief. The court explained

that, in contrast to private injunctive relief, which provides

benefits “to an individual plaintiff—or to a group of

individuals similarly situated to the plaintiff,” public

injunctive relief involves diffuse benefits to the “general

public” as a whole, and the general public “‘fails to meet’”

the class-action requirement of “‘an ascertainable class.’”

393 P.3d at 90, 93 (emphasis added) (citations omitted).

It follows that public injunctive relief within the meaning

of McGill is limited to forward-looking injunctions that seek

to prevent future violations of law for the benefit of the

general public as a whole, as opposed to a particular class of

persons, and that do so without the need to consider the

individual claims of any non-party. The paradigmatic

example would be the sort of injunctive relief sought in

McGill itself, where the plaintiff sought an injunction against

the use of false advertising to promote a credit protection

plan. 393 P.3d at 90–91. Such an injunction attempts to stop

future violations of law that are aimed at the general public,

and imposing or administering such an injunction does not

require effectively fashioning individualized relief for non-

parties. See also Cruz, 66 P.3d at 1159–60 (plaintiff sought

injunctive relief against PacifiCare’s false advertising in

“misrepresenting or failing to disclose internal policies that

lower the quality of services provided”); Broughton, 988

P.2d at 71 (plaintiff sought “an order enjoining [defendant

Cigna’s] deceptive methods, acts, and practices,” which

allegedly included “deceptively and misleadingly

advertis[ing] the quality of medical services which would be

provided under its health care plan”).

14 HODGES V. COMCAST

By contrast, when the injunctive relief being sought is

for the benefit of a discrete class of persons, or would require

consideration of the private rights and obligations of

individual non-parties, it has been held to be private

injunctive relief. For example, in Kilgore, the plaintiffs

alleged that the loans and contracts they had executed to

attend a since-failed helicopter-pilot school did not contain

certain disclosures required by Federal Trade Commission

regulations. 718 F.3d at 1056 & n.3. As a remedy, the

plaintiffs sought an injunction under the UCL to prevent the

defendant bank from reporting their student loan defaults to

credit agencies and from enforcing the student loan notes.

Id. Sitting en banc, we held that the plaintiffs were not

seeking public injunctive relief because the requested

injunction against enforcing these loans or reporting

associated loan defaults on credit reports “plainly would

benefit only the approximately 120 putative class members”

and not the general public. Id. at 1060–61. We further noted

that, in contrast to seeking forward-looking relief against

future unlawful acts aimed at the general public, the

requested injunction, “for all practical purposes, relates only

to past harms suffered by the members of the limited

putative class.” Id. at 1061 (emphasis added).

Likewise, in Clifford, the California Court of Appeal

held that even prospective injunctive relief was not “public”

when the primary beneficiaries were a defined group of

similarly situated persons, rather than the general public.

There, the plaintiff alleged a variety of wage and hour claims

arising from his employer’s alleged misclassification of him

as an “exempt employee.” 251 Cal. Rptr. 3d at 273.

Although the plaintiff sought an injunction to prevent his

employer from committing further similar violations of law

in the future, the court held that this did not constitute a

request for public injunctive relief. The only “potential

HODGES V. COMCAST 15

beneficiaries” of the requested forward-looking relief were

“Quest’s current employees, not the public at large.” Id.

at 277 (emphasis added). In reaching this conclusion, the

court emphasized McGill’s statement that, in order to qualify

as public injunctive relief, the requested injunction must go

beyond “‘redressing or preventing injury to an individual

plaintiff—or to a group of individuals similarly situated to

the plaintiff.’” Id. at 278 (quoting McGill, 393 P.3d at 90)

(emphasis added by Clifford); see also Torrecillas v. Fitness

Int’l, LLC, 266 Cal. Rptr. 3d 181, 191 (Cal. Ct. App. 2020)

(requested relief was not public injunctive relief because the

“beneficiary of an injunction would be Torrecillas and

possibly Fitness’s current employees, not the public at

large”).

We emphasized these same key features of public

injunctive relief when we held in Blair that the McGill rule

was not preempted by the FAA. Thus, in holding that public

injunctive relief did not entail a level of procedural formality

or complexity that would be inconsistent with arbitration’s

goal of streamlined proceedings, we expressly relied on

McGill’s holdings that (1) a “plaintiff requesting a public

injunction files the lawsuit ‘on his or her own behalf,’” and

not in any sort of representative capacity; (2) as a result,

“claims for public injunctive relief need not comply with

state-law class procedures”; and (3) the beneficiaries of

public injunctive relief are “the general public” as a whole

and not “specific absent parties.” Blair, 928 F.3d at 828–29.

In light of these crucial features of the McGill rule, we held

that a request for public injunctive relief “does not interfere

with the bilateral nature of a typical consumer arbitration.”

Id. at 829; see also Stolt-Nielsen S.A. v. AnimalFeeds Int’l

Corp., 559 U.S. 662, 685 (2010) (“In bilateral arbitration,

parties forego the procedural rigor . . . in order to realize the

benefits of private dispute resolution: lower costs, greater

16 HODGES V. COMCAST

efficiency and speed, and the ability to choose expert

adjudicators to resolve specialized disputes.”). Moreover, in

explaining why the relief sought in Blair included public

injunctive relief, we noted that it sought to stop Rent-A-

Center from using an unlawful pricing structure, 928 F.3d

at 822–23, thereby enjoining “future violations” of

California law in a manner that diffusely benefitted the

general public as a whole, id. at 831 n.3. 4

Given the loadbearing weight we placed on these aspects

of McGill in Blair, we think it is clear that any broader

conception of public injunctive relief, beyond what we have

set forth above, would have required a different conclusion

as to the preemption issue. If California’s McGill rule had

sought to preserve, as non-waivable, the right to formally

represent the claims of others, to seek retrospective relief for

a particular class of persons, or to request relief that requires

consideration of the individualized claims of non-parties,

then such a rule would plainly “interfere with the informal,

bilateral nature of traditional consumer arbitration.” Blair,

928 F.3d at 830; see also Epic Sys. Corp. v. Lewis, 138 S. Ct.

1612, 1623 (2018) (state-law rule that a contract is

unenforceable “just because it requires bilateral arbitration”

4

Notably, in reaching that conclusion in Blair, we did not rely on

the other forms of injunctive relief that the plaintiff requested in that

case, namely, an order requiring Rent-A-Center to perform a retroactive

“accounting of monies obtained from California consumers” and to

provide “individualized notice to those consumers of their statutory

rights.” 928 F.3d at 823. In contrast to the public injunctive relief

described in McGill, these other forms of requested relief in Blair were

retrospective, aimed at a specific class of persons (i.e., those who already

had Rent-A-Center contracts), or would require individualized

consideration of the private rights and obligations of particular non-

parties.

HODGES V. COMCAST 17

is preempted because it “impermissibly disfavors

arbitration” (emphasis omitted)).

2

In arguing for a broader reading of McGill, Hodges relies

on the recent decision of Division Three of the Fourth

District Court of Appeal in Mejia, 268 Cal. Rptr. 3d 642, in

which the court substantially broadened the McGill rule by

effectively defining as “public injunctive relief” any

forward-looking injunction that restrains any unlawful

conduct. Hodges also notes that Mejia’s analysis was

reaffirmed in another recent decision issued by the same

division of the same district in Maldonado v. Fast Auto

Loans, Inc., 275 Cal. Rptr. 3d 82 (Cal. Ct. App. 2021). For

two reasons, Hodges’ reliance on these cases is unavailing.

a

First, Mejia’s expanded version of the McGill rule rests

on such a patent misreading of California law that we do not

think it would be followed by the California Supreme Court.

See Ryman v. Sears, Roebuck & Co., 505 F.3d 993, 995 (9th

Cir. 2007) (panel is not required to follow intermediate state

appellate authority where there is convincing evidence that

the state supreme court would decide differently).

In particular, Mejia improperly disregards the key

features of public injunctive relief set forth by the state high

court in McGill. The alleged violation in Mejia involved the

defendant motorcycle seller’s failure to provide purchasers

“with a single document setting forth all the financing terms”

for the sale, see Mejia, 268 Cal. Rptr. 3d at 644, and the

plaintiff requested an injunction against any sale that did not

provide the requisite information in a single document, id.

at 645. By its terms, this relief would primarily benefit the

18 HODGES V. COMCAST

class of persons who actually purchased motorcycles, and

not the general public as a whole. See McGill, 393 P.3d at

90 (relief whose “primary purpose or effect” is “preventing

injury . . . to a group of individuals similarly situated to the

plaintiff . . . does not constitute public injunctive relief”).

Moreover, implementing such a decree could require the

examination of the paperwork of each individual sale to

determine whether the particular financing terms and other

requisite disclosures for that given sale were all included in

a single document. See id. at 93 (public injunctive relief

“does not constitute the pursuit of representative claims or

relief on behalf of others” (simplified)). As we have

explained, these are precisely the sorts of features that have

led to a finding of private injunctive relief. See supra at 13–

14.

The Mejia court nonetheless held that the relief requested

was public. 268 Cal. Rptr. 3d at 651. It did so in a brief

discussion that (1) declared, without analysis, that the

complaint’s requested injunctive relief concerning the sales

documents of future motorcycle purchasers “encompasse[d]

‘consumers’ generally” and (2) then announced that such

relief was therefore “‘injunctive relief that has the primary

purpose and effect of prohibiting unlawful acts that threaten

future injury to the general public.’” Id. (quoting McGill,

393 P.3d at 87). This truncated analysis effectively shears

off the limiting elements that were recited in McGill and that

we found critical to avoiding preemption in Blair. It instead

rests on the implicit premise that any forward-looking relief

to enjoin any illegal conduct is automatically public

injunctive relief that benefits the general public as a whole.

Id. This is a clear misreading of McGill, Broughton, and

Cruz. See supra at 10–13.

HODGES V. COMCAST 19

To the extent that Maldonado follows and applies

Mejia’s flawed analysis, it is equally mistaken. The

plaintiffs in Maldonado sought injunctive relief, inter alia,

that would prevent the defendant lender from charging

unconscionably excessive interest rates on loans and that

would require the lender to undertake “corrective

advertising” and to maintain the requisite California lender

licenses. 275 Cal. Rptr. 3d at 85–86. To be sure, some of

the relief requested in Maldonado—such as an injunction to

maintain the appropriate lender licenses and to undertake a

corrective advertising campaign—would appear to meet

McGill’s more circumscribed articulation of what counts as

non-waivable public injunctive relief. But Maldonado went

further and, relying on Mejia, held that an injunction aimed

at preventing “unconscionable” loan agreements with

excessive interest rates was public injunctive relief. Id.

at 90. For multiple reasons, that conclusion was plainly

incorrect.

Maldonado’s conclusion that an injunction against

unconscionable loan agreements “encompasses all

consumers and members of the public,” rather than just a

discrete class of persons who are similarly situated to the

plaintiffs, 275 Cal. Rptr. 3d at 90, is clearly wrong. By its

terms, that requested relief only benefits those who actually

sign lending agreements, and not the public more generally.

The court was likewise incorrect in suggesting that such an

injunction would not benefit the plaintiffs themselves

“because they have already been harmed and are already

aware of the misconduct.” Id. That might be true as to the

other forms of relief requested (such as corrective

advertising), but the plaintiffs and the class members would

plainly benefit from an injunction barring unconscionable

loan agreements, thereby underscoring that that relief is

private injunctive relief. The court was also wrong in

20 HODGES V. COMCAST

suggesting that, simply because an injunction against

unconscionable loan agreements with excessive interest

rates would also extend to future borrowers, the relief was

necessarily non-waivable public injunctive relief. Id. at 91.

As McGill makes clear, an incidental public benefit from

what is otherwise class-wide private injunctive relief is not

sufficient to establish that the requested injunction is actually

public relief. 393 P.3d at 89. Furthermore, determining

whether any particular future loan agreement was

unconscionable due to its interest rate would require an

individualized inquiry that considers whether, “under the

circumstances of the case, taking into account the bargaining

process and prevailing market conditions—a particular rate

was ‘overly harsh,’ ‘unduly oppressive,’ or ‘so one-sided as

to shock the conscience.’” De La Torre v. CashCall, Inc.,

422 P.3d 1004, 1015 (Cal. 2018) (citations omitted). For all

of these reasons, Maldonado plainly erred in holding that

any injunction aimed at prohibiting the defendant “‘from

continuing to engage in its allegedly illegal and deceptive

practices’” is public injunctive relief. 275 Cal. Rptr. 3d at

91 (citation omitted).

The dissent’s effort to defend Mejia and Maldonado is

both unpersuasive and inconsistent with other precedent.

While conceding that the requested injunctive relief in both

cases would primarily benefit only those who entered into

contracts with the defendants, the dissent argues that there is

nonetheless a benefit to the general public in the sense that

persons considering entering into such contracts would also

be protected. See Dissent at 31. But as McGill explained,

whether a requested injunction is public or private depends

upon who are the primary beneficiaries, and the existence of

an incidental benefit to the general public is not enough to

classify that relief as non-waivable public injunctive relief.

393 P.3d at 89. Moreover, as the dissent acknowledges,

HODGES V. COMCAST 21

other courts—including this court—have already recognized

that injunctive relief aimed at regulating the substantive

terms of contractual arrangements is private injunctive relief

that primarily benefits those who enter into such contracts.

See Capriole v. Uber Techs., Inc., 7 F.4th 854, 2021 WL

3282092, at *13 (9th Cir. 2021) (relief regulating Uber

drivers’ relationship with Uber is primarily directed at those

who become Uber drivers and “only ‘benefit[s] the general

public incidentally’” (quoting Blair, 928 F.3d at 824));

Clifford, 251 Cal. Rptr. 3d at 277 (requested injunctive relief

concerning wages and hours would primarily benefit

defendant Quest Software’s “current employees” rather than

“the public at large”). The dissent seeks to distinguish these

cases on the ground that it is more cumbersome to become

an employee of Quest Software or an Uber driver, see

Dissent at 34, but that distinction has nothing at all to do with

what McGill says is the relevant inquiry, namely, who are

the primary beneficiaries of the requested injunctive relief.

The dissent is also wrong in contending that our rejection

of Mejia and Maldonado is actually based on the “implicit

premise” that the only type of injunction that counts as

public injunctive relief is one directed against false

advertising. See Dissent at 32. That strawman argument is

belied by the substantive analysis set forth earlier, which

merely describes such an injunction as illustrative of public

injunctive relief, just as McGill itself did. See 393 P.3d

at 89–90 (noting that Broughton and Cruz, which involved

injunctions against false advertising, were paradigmatic

examples of public injunctive relief). And it is further belied

by our acknowledgment that, for example, the request for an

injunction that the defendant in Maldonado obtain and

maintain the required lender licenses qualifies as public

injunctive relief. See supra at 19.

22 HODGES V. COMCAST

b

Second, even if we are wrong in concluding that the

California Supreme Court would not follow Mejia’s and

Maldonado’s broader reading of the McGill rule, Hodges’

argument would still fail for the independent and alternative

reason that their expansion of the McGill rule is preempted

by the FAA.

As we have explained, the broader Mejia-Maldonado

rule—namely, that any injunction against future illegal

conduct constitutes non-waivable public injunctive relief—

ignores the key features of the McGill rule that saved it from

preemption under the FAA in Blair. In upholding the McGill

rule, we emphasized that the category of public injunctive

relief described in McGill did not involve the sort of

procedural complexity or formality that would be

inconsistent with the FAA’s objective of “‘facilitat[ing]

streamlined proceedings’” in arbitration. 928 F.3d at 828

(quoting Concepcion, 563 U.S. at 344). We reached that

conclusion because, as described in McGill, public

injunctive relief does not entail acting in a representative

capacity, does not require class-action procedures, and does

not primarily benefit “specific absent parties.” Id. at 928–

29; see supra at 15.

The same cannot be said of the broader version of the

McGill rule embraced in Mejia and Maldonado. Because it

disregards all of the limitations on public injunctive relief

that were emphasized in McGill and Blair, the broader

Mejia-Maldonado rule forbids waiving claims for

prospective injunctive relief against unlawful conduct even

if, for example, the implementation of such an injunction

would require evaluation of the individual claims of

numerous non-parties. The point is illustrated by

considering the particular types of injunctive relief sought in

HODGES V. COMCAST 23

Mejia and Maldonado themselves—namely, injunctions

regulating the drafting and substantive terms of actual

contracts with innumerable different persons. See supra

at 17– 21. Implementing such relief would require a level of

procedural complexity that is inherently incompatible “with

the informal, bilateral nature of traditional consumer

arbitration,” Blair, 928 F.3d at 830, and with the “efficient,

streamlined procedures” that the FAA seeks to protect.

Concepcion, 563 U.S. at 344; cf. Broughton, 988 P.2d at 77

(noting that, “[i]n some cases, the continuing supervision of

an injunction is a matter of considerable complexity” that

involves “quasi-executive functions of public administration

that expand far beyond the resolution of private disputes”). 5

The dissent wrongly discounts the fact that the Mejia-

Maldonado rule precludes waiver of forward-looking

injunctive relief, even if its implementation would involve

administrative complexity that is inconsistent with bilateral

arbitration. According to the dissent, this concern is

irrelevant, because an adjudicator would not need to

“examine the claims” of individuals “before entering an

order like that.” See Dissent at 36 (emphasis added). But

injunctions are not simply words on a page, and their

compatibility with bilateral arbitration must be evaluated in

light of how they would actually be implemented, as the

5

It is worth recalling that, when Broughton and Cruz initially set out

to define a category of public injunctive relief, they did so in the course

of formulating a rule that sought to identify forms of relief that were so

fundamentally inconsistent with arbitration that California law did not

permit “this type of injunctive relief to be arbitrated.” Broughton,

988 P.2d at 76. Such an explicitly anti-arbitration rule is, of course,

preempted by the FAA, see Ferguson, 733 F.3d at 934, and in McGill,

the California Supreme Court expressly pivoted away from the

“Broughton-Cruz rule” and instead sought to define the specific class of

public injunctive relief that could never be waived. 393 P.3d at 90.

24 HODGES V. COMCAST

California Supreme Court itself recognized in Broughton.

988 P.2d at 77.

By insisting that contracting parties may not waive a

form of relief that is fundamentally incompatible with the

sort of simplified procedures the FAA protects, the Mejia-

Maldonado rule effectively bans parties from agreeing to

arbitrate all of their disputes arising from such contracts. To

say that such a rule is not preempted would flout Supreme

Court authority. See, e.g., Epic Sys., 138 S. Ct. at 1623

(holding that, under Concepcion, “courts may not allow a

contract defense to reshape traditional individualized

arbitration” and “a rule seeking to declare individualized

arbitration proceedings off limits” is preempted by the

FAA). And that we cannot do.

C

Accordingly, we reaffirm that non-waivable “public

injunctive relief” within the meaning of the McGill rule

refers to prospective injunctive relief that aims to restrain

future violations of law for the benefit of the general public

as a whole, rather than a discrete subset of similarly situated

persons, and that does so without requiring consideration of

the individual claims of non-parties. See supra at 13–14.

With these principles in mind, we address whether Hodges’

complaint seeks such relief. Although the complaint labels

the requested relief as “public,” we must look beyond such

conclusory assertions and assess for ourselves whether,

under the applicable standards, the relief requested

implicates the McGill rule. We conclude that it does not.

The complaint seeks injunctive relief requiring Comcast

to take the following actions with respect to those persons

who are “cable subscribers” of Comcast (all emphasis

added):

HODGES V. COMCAST 25

(1) “clearly and conspicuously notify cable

subscribers in writing, at the requisite

times, of the period during which it

maintains their [personally identifiable

information (“PII”)], including video

activity data and demographic data”;

(2) “stop using its cable system to collect

cable subscribers’ personally identifiable

video activity data for advertising

purposes without their prior written or

electronic consent”;

(3) “destroy all personally identifiable video

activity data collected from cable

subscribers for advertising purposes

without prior written or electronic

consent and any information derived in

whole or part from such data”;

(4) “change its procedures to provide cable

subscribers who request access to their

PII with access to all such PII in

Comcast’s possession, including video

activity data and demographic data”;

(5) “stop using its cable system to record,

transmit, or observe video activity data

about cable subscribers without their

express written consent”;

(6) “destroy all video activity data collected

from cable subscribers through

Comcast’s cable system without their

express written consent”;

26 HODGES V. COMCAST

(7) “provide cable subscribers who request

access to their individually identifiable

subscriber information with access to all

such information gathered by Comcast

within 30 days, including video activity

data.”

At least some (but not all) of these requested forms of

relief seek forward-looking prohibitions against future

violations of law. But as we have explained, that alone is

not enough to classify the remedy as public injunctive relief

within the meaning of the McGill rule. And unlike the public

injunctive relief sought in McGill, Broughton, and Cruz,

these requests on their face stand to benefit only Comcast

“cable subscribers”—i.e., by definition they will only benefit

a “group of individuals similarly situated to the plaintiff.”

McGill, 393 P.3d at 90; see also Capriole, 7 F.4th at 854,

2021 WL 3282092, at *13; Clifford, 251 Cal. Rptr. 3d at 278.

There is simply no sense in which this relief could be said to

primarily benefit the general public as a more diffuse whole.

See McGill 393 P.3d at 89–90 (relief that incidentally

benefits the public does not suffice to convert private relief

to public relief).

Moreover, it is apparent that administering any

injunctive relief of the sort sought here would entail the

consideration of the individualized claims of numerous cable

subscribers. The relief sought here is not the equivalent of a

simple prohibition on running a false advertisement or a

mandatory injunction to obtain certain licenses or to make

additional public disclosures in advertising. On the contrary,

each form of relief would require either consideration of

which particular consents each subscriber has or has not

given or examination of which individualized disclosures

have or have not been made. Administering an injunction of

HODGES V. COMCAST 27

this sort, on this scale, is patently incompatible with the

procedural simplicity envisioned by bilateral arbitration.

Stolt-Nielsen, 559 U.S. at 685–86; Concepcion, 563 U.S.

at 348–49. We do not construe California’s McGill rule as

purporting to insist that the right to seek that sort of relief is

non-waivable. But to the extent that the McGill rule did so,

it would be a much different rule from the one we confronted

in Blair, and this broader version of the rule is preempted by

the FAA.

III

We reverse the district court’s denial of Comcast’s

motion to compel arbitration, and we remand to the district

court with instructions to grant that motion.

REVERSED AND REMANDED.

BERZON, Circuit Judge, dissenting:

The majority concludes, contrary to our precedent and to

recent decisions of the California Court of Appeal, that a

forward-looking injunction protecting the privacy rights of

millions of cable consumers is not “public injunctive relief”

under California state law. I disagree.

This case is indistinguishable from our decision in Blair

v. Rent-A-Center, Inc., 928 F.3d 819 (9th Cir. 2019), and the

California Court of Appeal’s recent decisions in Mejia v.

DACM Inc., 54 Cal. App. 5th 691 (2020), and Maldonado v.

Fast Auto Loans, Inc., 60 Cal. App. 5th 710 (2021), all of

which held that an injunction affecting the contract terms a

business could offer to members of the public qualified as

public injunctive relief. Here, too, Hodges requests an

28 HODGES V. COMCAST

injunction that would require Comcast to provide a

statutorily mandated notice at the time an agreement is

entered—that is, when a member of the general public is

deciding whether to become a Comcast subscriber. Just as in

Blair, Mejia, and Maldonado, the relief sought here “has the

primary purpose and effect of prohibiting unlawful acts that

threaten future injury to the general public” and is therefore

public injunctive relief. McGill v. Citibank, N.A., 2 Cal. 5th

945, 951 (2017).

In Blair, the plaintiffs “entered into rent-to-own

agreements” with Rent-A-Center, which “operates stores

that rent household items to consumers for set installment

payments.” Blair, 928 F.3d at 822. The plaintiffs “alleged

that Rent-A-Center structured its rent-to-own pricing in

violation of [California] law.” Id. In particular, the plaintiffs

alleged violations of a statute that sets maximum prices that

businesses may charge for rent-to-own items, in proportion

to the items’ actual cost. Id. at 823. Plaintiffs sought “to

enjoin future violations of these laws.” Id.

Obviously, the injunction requested in Blair would not

directly benefit every member of the general public. It would

benefit those members of the public who contemplate

entering into rent-to-own agreements with Rent-A-Center or

do enter into such agreements, by ensuring that they are

offered terms compliant with California law. We concluded

in Blair that the plaintiffs sought public injunctive relief. Id.

at 831 n.3. We reasoned that “Blair seeks to enjoin future

violations of California’s consumer protection statutes, relief

oriented to and for the benefit of the general public.” Id.

Similarly, in Mejia, the plaintiff bought a used

motorcycle from a dealership, Del Amo, and financed the

purchase using a credit card he obtained through the

dealership. Mejia, 54 Cal. App. 5th at 694. He alleged that

HODGES V. COMCAST 29

the dealership had violated a state law requiring it “to

provide its customers with a single document setting forth all

the financing terms for motor vehicle purchases made with a

conditional sale contract.” Id. at 695. The plaintiff sought

“an injunction prohibiting Del Amo from selling motor

vehicles ‘without first providing the consumer with a single

document containing all of the agreements of Del Amo and

the consumer with respect to the total cost and the terms of

payment for the motor vehicle.’” Id. at 695–96.

Del Amo maintained that the injunction requested was

“private” because it would “benefit only a ‘narrow group of

Del Amo customers’—the class of similarly situated

individuals who, like Mejia, would buy a motorcycle from

Del Amo with a conditional sale contract.” Id. at 702. The

California Court of Appeal rejected that argument, reasoning

that the injunction sought would force “Del Amo to cease

‘selling motor vehicles in the state of California without first

providing the consumer with all [mandated] disclosures . . .

in a single document.’” Id. at 703. In other words, the relief

would not be limited to “class members or some other small

group of individuals” but would benefit any member of the

general public who in the future considers buying a

motorcycle from Del Amo. Id.

Finally, in Maldonado, the defendant lender, Fast Auto

Loans, “offered loans to California consumers . . . in

immediate need of cash . . . [who] have limited credit

opportunities.” Maldonado, 60 Cal. App. 5th at 713

(alteration omitted). The plaintiffs alleged that the lender

“charged unconscionable interest rates” on the loans in

violation of California law. Id. The plaintiffs requested an

injunction requiring the lender, among other things, to

“cease charging an unlawful interest rate on its loans

exceeding $2,500.” Id. at 715.

30 HODGES V. COMCAST

Analyzing whether the plaintiffs sought public

injunctive relief, the California Court of Appeal began by

rejecting the lender’s argument that McGill “only applies to

plaintiffs seeking to enjoin false or misleading advertising

on behalf of the general public.” Id. at 721 (emphasis

omitted). The court reasoned that “California’s consumer

protection laws must be liberally, not narrowly, applied.” Id.

(citing McGill, 2 Cal. 5th at 954). California’s Unfair

Competition Law, Cal. Bus. & Prof. Code § 17200 et seq.

(“UCL”), protects consumers from any “unfair” business

practice, not just deceptive advertising. McGill, 2 Cal. 5th

at 954. The “primary form of relief available under the UCL

to protect consumers from unfair business practices is an

injunction.” Id. (citation omitted). The Court of Appeal

observed that “no case” had limited the “remedy of public

injunctions” under the UCL “to false advertising claims.”

Maldonado, 60 Cal. App. 5th at 721.

The Court of Appeal also rejected the lender’s argument

that the injunction sought was “private” relief because it

would benefit only the lender’s customers and not the

general public. The court reasoned,

The requested injunction cannot be deemed

private simply because Lender could not

possibly . . . enter into agreements with[]

every person in California. Such a holding

would allow Lender to continue violating the

UCL and [Consumers Legal Remedies Act,

Cal. Civ. Code § 1750 et seq.] because

consumers harmed by the unlawful practices

would be unable to act as a private attorney

general and seek redress on behalf of the

public. It is enough that the requested relief

HODGES V. COMCAST 31

has the purpose and effect of protecting the

public from Lender’s ongoing harm.

Id. at 722.

The injunction sought by Hodges includes relief that is

indistinguishable from the relief that we and the California

Court of Appeal deemed public injunctive relief in Blair,

Mejia, and Maldonado. Hodges seeks an injunction

requiring Comcast to “clearly and conspicuously notify

cable subscribers in writing, at the requisite times, of the

period during which it maintains their [personally

identifiable information (“PII”)], including video activity

data and demographic data (under the Cable Act and UCL).”

See Majority op. 25. The Cable Act supplies the requisite

times: “[a]t the time of entering into an agreement to

provide any cable service or other service to a subscriber

and at least once a year thereafter.” 47 U.S.C. § 551(a)(1)

(emphasis added). In other words, as Comcast’s lawyer

stated at oral argument, the disclosure requested by Hodges

“is a term of the contract for contracting parties.” Thus, the

injunction would benefit not just existing Comcast

subscribers but any member of the public who considers

entering into, or does enter into, an agreement with

Comcast—just as the injunctions in the cases discussed

above would protect members of the public who consider

contracting with or do contract with Rent-A-Center, Del

Amo, and Fast Auto Loans in the future. In all four cases,

the requested injunction would benefit the general public by

preventing the defendant business from contracting or

proposing to contract with any member of the public—not

just current customers—on unfair terms.

The majority acknowledges our binding holding in Blair

that an injunction preventing “Rent-A-Center from using an

32 HODGES V. COMCAST

unlawful pricing structure” was public injunctive relief, but

it fails to compare that relief with the relief sought here.

Majority op. 16. As for Mejia and Maldonado, the majority

suggests those cases were wrongly decided because the relief

requested “would primarily benefit the class of persons who

actually purchased motorcycles” (in Mejia) or “who actually

sign lending agreements” (in Maldonado), “and not the

general public as a whole.” Majority op. 17–18, 19. That

characterization is inaccurate. As here, the requirement in

Mejia and Maldonado applied before the transaction was

consummated, and so applied with respect to both potential

customers and actual customers. And the majority does not

explain why an injunction that benefits potential and actual

purchasers of motorcycles (or potential and actual

borrowers) when they are considering whether to enter into

a transaction does not benefit the general public; it simply

asserts that conclusion. Likewise, the majority concludes

with little analysis that the relief sought by Hodges regarding

the privacy notice is private because it would benefit only

Comcast subscribers, not “the general public as a more

diffuse whole.” Majority op. 26. But, again, the notice

requirement applies at the point of sale and periodically

thereafter and appears intended to protect the right of any

potential customer—who could be anyone in California, as

there are no selective criteria—to choose not to subscribe if

the privacy term is not acceptable.

The implicit premise underlying the majority’s

reasoning is that the concept of public injunctive relief is

confined to what the majority calls its “paradigmatic

example”: “an injunction against the use of false

advertising.” Majority op. 13. This premise rests on a fiction:

Advertisements reach the public as a “diffuse whole,” so an

injunction barring false advertising benefits the whole,

diffuse public. And conversely, this same reasoning goes, an

HODGES V. COMCAST 33

injunction regulating the terms a business may offer

consumers in a contract is private because it only benefits

those consumers who actually enter into, or are considering

entering into, a contract.

The notion that advertising reaches every member of the

whole, diffuse public was never true, and it is even less true

in today’s world of highly targeted advertising, in which a

great many ads are intended for a very specific audience.

Furthermore, an injunction preventing a business from

publishing a false advertisement does not even directly

benefit every person who would have seen the

advertisement. It benefits only those consumers who would

have been taken in by it—in other words, the potential

buyers of the misleadingly advertised product. Yet, under the

majority’s logic, an injunction preventing a motorcycle

dealership from posting a deceptive advertisement on its

premises would be public injunctive relief, while an

injunction preventing the same dealership from including an

unlawful term in its proposed sale contracts would be purely

private relief. That result is nonsensical. In each case, the

direct beneficiaries of the injunction are a relatively specific

group: consumers interested in buying motorcycles. Yet

both injunctions benefit the general public because any

member of the general public may at some time in the future

become interested in purchasing a motorcycle and so be

misled by a deceptive advertisement or by an unlawful term

in a proposed contract when considering buying a

motorcycle. In either context, an injunction could prevent the

dealership from treating unfairly these members of the

public newly considering buying a motorcycle.

Likewise, here, any member of the general public may

decide to sign up with Comcast or may read the terms offered

before deciding whether to sign up. As far as appears,

34 HODGES V. COMCAST

Comcast offers its services to the public at large, the only

criteria for admission into the “customer” group being

willingness to sign an agreement for services and pay the

requisite service rates. And Comcast in fact reaches a large

number of cable consumers in California: the record shows

that as of 2014, Comcast reportedly had 2.2 million

subscribers in the state, or 40 percent of the state cable

market. Undoubtedly, a great many members of the general

public will in the future consider contracting with, and will

contract with, Comcast for cable service.

In contrast, members of the public could not freely join

the group of former students in Kilgore v. KeyBank, Nat’l

Ass’n, 718 F.3d 1052 (9th Cir. 2013) (en banc). The flight

school no longer operated, and the bank no longer offered

student loans. Id. at 1056, 1061. Nor could any member of

the general public choose to become an employee of the

defendant software company in Clifford v. Quest Software

Inc., 38 Cal. App. 5th 745 (2019), or a driver for Uber in

Capriole v. Uber Technologies, Inc., No. 20-16030, 2021

WL 3282092 (9th Cir. Aug. 2, 2021). Surely not just anyone

can walk through the doors of Quest Software, announce, “I

accept your offer of employment,” and start working there.

And Uber requires its drivers to have one to three years of

licensed driving experience and to pass a background check,

among other requirements. See Driver Requirements, Uber,

https://www.uber.com/us/en/drive/requirements/ (last

visited Aug. 9, 2021). The relief sought in Kilgore, Clifford,

and Capriole benefited a circumscribed group of people;

there was no sense in which the injunctions “prohibit[ed]

unlawful acts that threaten[ed] future injury to the general

public.” McGill, 2 Cal. 5th at 955.

Our court’s job in deciding this question of state law is

to “apply the law as [we] believe[] the California Supreme

HODGES V. COMCAST 35

Court would apply it.” Edgerly v. City & Cty. of San

Francisco, 713 F.3d 976, 982 (9th Cir. 2013) (citation

omitted). In my view, it is highly unlikely that the California

Supreme Court would limit public injunctive relief to the

false advertising context. At a minimum, in keeping with the

liberal construction given to California’s consumer

protection statutes, public injunctive relief must also include

injunctions affecting the contract terms a business may offer

to potential customers. 1 That was the import of our holding

in Blair, and it is what the California Court of Appeal

decided in Mejia and Maldonado. “In the absence of a

controlling California Supreme Court decision, we follow

decisions of the California Court of Appeal unless there is

convincing evidence that the California Supreme Court

would hold otherwise.” Edgerly, 713 F.3d at 982 (internal

quotation marks and citation omitted). The California

Supreme Court denied petitions for review in both Mejia and

Maldonado, and we have no evidence, let alone “convincing

evidence,” that it would disapprove those cases.

Besides drawing an arbitrary line between the public

who views advertisements and the public who signs up for

cable or buys motorcycles, the majority posits an additional

reason why the relief sought here and in Mejia and

Maldonado is private, not public. The majority maintains

1

Because at least part of the relief Hodges seeks is public injunctive

relief, I would affirm the district court’s order denying the motion to

compel arbitration. See Blair, 928 F.3d at 823, 831 n.3, 832 (affirming

the denial of a motion to compel arbitration on the basis that some of the

injunctive relief Blair sought was public injunctive relief). For present

purposes, I need not and therefore do not address whether the other

forward-looking injunctive relief that Hodges seeks—which would

benefit future Comcast subscribers by, for example, requiring Comcast

to stop collecting certain data without subscribers’ consent—is also

public injunctive relief. See Majority op. 24–26.

36 HODGES V. COMCAST

that “administering any injunctive relief of the form sought

here would entail the consideration of the individualized

claims of numerous cable subscribers.” Majority op. 26; see

id. at 22–24. I cannot see why it would. The injunction

requested by Hodges would simply require Comcast to adopt

new operating procedures going forward: provide a

particular notice when a contract is signed, obtain consent

before using its cable system to collect certain data, and so

on. See Majority op. 24–26 (quoting complaint). No

adjudicator would have to examine the claims of individual

cable subscribers before entering an order like that. True, if

someone were to bring an action to enforce the injunction,

an adjudicator would need to examine the facts to determine

whether the injunction had been violated, but that is also true

in the false advertising context that the majority offers as a

foil. See Majority op. 26–27 It is true in any enforcement

action.

The majority has failed to provide a convincing rationale

for the distinction it draws in this case between relief

benefiting consumers who contract with businesses and

relief benefiting consumers who are exposed to

advertisements. Because the distinction is untenable and I

believe it would be rejected by the California Supreme

Court, I dissent. I would affirm the district court’s denial of

the motion to compel arbitration.