Petition for Writ of Certiorari — Comcast Cable Communications, LLC, Petitioner v. Charles Ramsey

No.

In The

COMCAST CABLE COMMUNICATIONS, LLC,

Petitioner,

v.

CHARLES RAMSEY.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE CALIFORNIA COURT OF APPEAL,

SIXTH APPELLATE DISTRICT

PETITION FOR A WRIT OF CERTIORARI

Michael Weisbuch

AKIN GUMP STRAUSS

HAUER & FELD LLP

100 Pine Street, Suite 3200

San Francisco, CA 94111

(415) 765-9500

Marshall Baker

AKIN GUMP STRAUSS

HAUER & FELD LLP

1999 Avenue Of The Stars,

Suite 600

Los Angeles, CA 90067

(310) 229-1000

Pratik A. Shah

Counsel of Record

AKIN GUMP STRAUSS

HAUER & FELD LLP

2001 K Street N.W.

Washington, DC 20006

(202) 887-4210

pshah@akingump.com

Counsel for Petitioner

QUESTION PRESENTED

Under the Federal Arbitration Act (FAA),

arbitration agreements are “valid, irrevocable, and

enforceable.” 9 U.S.C. § 2. Section 2’s “saving clause”

contemplates exceptions only “upon such grounds as

exist at law or in equity for the revocation of any

contract.” Id. But the FAA preempts even such

grounds if they interfere with “fundamental

attribute[s] of arbitration.” Epic Sys. Corp. v. Lewis,

584 U.S. 497, 508 (2018). In 2017, the California

Supreme Court ruled that an arbitration provision

waiving the ability to seek “public injunctive relief” in

any forum is unenforceable. McGill v. Citibank, N.A.,

393 P.3d 85 (Cal. 2017). More recently, the California

courts have held that to trigger that rule, a plaintiff

need only request an injunction under California’s

Unfair Competition Law (UCL) or Consumers Legal

Remedies Act (CLRA). The McGill rule thus renders

standard arbitration agreements unenforceable under

California law when a consumer-plaintiff seeks to

enjoin virtually any allegedly unlawful business

practice. The Ninth Circuit has held that the FAA

would preempt such a sweeping rule—resulting in a

square federal-state conflict.

The question presented is:

Whether the FAA preempts California’s McGill

rule.

(i)

ii

PARTIES TO THE PROCEEDING

All parties to the proceeding are set forth in the

caption.

RULE 29.6 STATEMENT

Comcast Cable Communications, LLC is an

indirect wholly-owned subsidiary of Comcast

Corporation, a publicly held corporation. No entity or

person has an ownership interest of 10 percent or more

in Comcast Corporation.

iii

STATEMENT OF RELATED PROCEEDINGS

Pursuant to this Court’s Rule 14.1(b)(iii), the

following proceedings are directly related to this case:

Charles

Ramsey

v.

Comcast

Cable

Communications, LLC, 317 Cal. Rptr. 3d 561 (Ct. App.

2023).

Charles

Ramsey

v.

Comcast

Cable

Communications, LLC, Case No. 21CV384867 (Cal.

Super. Ct., Santa Clara Cnty. 2022).

iv

TABLE OF CONTENTS

QUESTION PRESENTED ........................................... i

PARTIES TO THE PROCEEDING ............................ii

RULE 29.6 STATEMENT ...........................................ii

STATEMENT OF RELATED

PROCEEDINGS ........................................................ iii

INTRODUCTION ........................................................ 1

OPINIONS BELOW .................................................... 4

JURISDICTION .......................................................... 4

RELEVANT CONSTITUTIONAL AND

STATUTORY PROVISIONS....................................... 4

STATEMENT OF THE CASE .................................... 5

A. Legal Background ...................................... 5

1. FAA Preemption................................... 5

2. The McGill Rule................................... 7

B. Factual Background And Procedural

History ...................................................... 10

REASONS FOR GRANTING THE WRIT ................ 12

I.

THE FAA PREEMPTS THE MCGILL

RULE

UNDER

THIS

COURT’S

PRECEDENTS ............................................... 13

A. McGill Targets Arbitration And

Interferes

With

Fundamental

Attributes Of Arbitration ......................... 13

v

B. McGill Is Not A Ground For The

“Revocation” Of Any Contract ................. 21

II. REVIEW

IS

NECESSARY

TO

RESOLVE

AN

ENTRENCHED

FEDERAL - STATE CONFLICT ................... 23

A. The Ninth Circuit And California

Courts Disagree About Whether The

FAA

Preempts

The

Latter’s

Application Of McGill .............................. 23

B. The California Courts’ Expansion Of

Section 2 Conflicts With Decisions

Of Federal Courts Of Appeals ................. 24

III. REVIEW IS WARRANTED IN THIS

CASE ............................................................... 26

A. The

Question

Presented

Is

Exceptionally Important .......................... 26

B. The Legal Landscape Has Changed

Since Prior Petitions ................................ 27

C. This Case Is A Good Vehicle .................... 29

CONCLUSION .......................................................... 30

vi

TABLE OF AUTHORITIES

CASES:

American Express Co. v. Italian Colors Rest.,

570 U.S. 228 (2013) ........................................... 22

AT&T Mobility LLC v. Concepcion,

563 U.S. 333 (2011) ........... 5, 6, 7, 8, 9, 15, 18, 22

Broughton v. Cigna Healthplans of Cal.,

988 P.2d 67 (Cal. 1999) ............... 8, 14, 19, 20, 21

Califano v. Yamasaki,

422 U.S. 682 (1979) ........................................... 16

Cedeno v. Sasson,

100 F.4th 386 (2d Cir. 2024) ....................... 17, 20

Cel-Tech Commc’ns, Inc. v. Los Angeles

Cellular Tel. Co.,

973 P.2d 527 (Cal. 1999) ................................... 10

Cruz v. PacifiCare Health Sys., Inc.,

66 P.3d 1157 (Cal. 2003) ............................... 8, 14

Dean Witter Reynolds, Inc. v. Byrd,

470 U.S. 213 (1985) ........................................... 21

Epic Sys. Corp. v. Lewis,

584 U.S. 497 (2018) ....................... 6, 7, 16, 22, 23

Ferguson v. Corinthian Colls., Inc.,

733 F.3d 928 (9th Cir. 2013) ............................... 8

vii

Food & Drug Admin. v. Alliance for

Hippocratic Med.,

602 U.S. 367 (2024) ..................................... 16, 17

Granite Rock Co. v. International

Brotherhood of Teamsters,

561 U.S. 287 (2010) ........................................... 17

Halcon Int’l, Inc. v. Monsanto Austl. Ltd.,

446 F.2d 156 (7th Cir. 1971) ............................. 25

Hodges v. Comcast Cable Commc’ns, LLC,

21 F.4th 535 (9th Cir.

2021) .................... 3, 19, 20, 21, 23, 24, 28, 29, 30

In re StockX Customer Data Sec. Breach

Litig.,

No. 19-12441, 2021 WL 2434169 (E.D.

Mich. June 15, 2021) ......................................... 27

Iskanian v. CLS Transp. L.A., LLC,

327 P.3d 129 (Cal. 2014) ................................... 15

Kindred Nursing Centers Ltd. P’ship v.

Clark,

581 U.S. 246 (2017) ....................................... 6, 14

Labrador v. Poe ex rel. Poe,

144 S. Ct. 921 (2024) ......................................... 16

Lamps Plus, Inc. v. Varela,

587 U.S. 176 (2019) ............................................. 7

viii

Maldonado v. Fast Auto Loans, Inc.,

275 Cal. Rptr. 3d 82 (Ct. App.

2021) ...................................... 9, 24, 27, 28, 29, 30

McGill v. Citibank, N.A.,

393 P.3d 85 (Cal. 2017) .......... 1, 2, 3, 8, 9, 10, 11,

12, 13, 14, 15, 16, 17, 18, 20, 21, 23, 24, 25, 26,

27, 28, 29, 30

McMullen v. Hoffman,

174 U.S. 639 (1899) ........................................... 23

Mejia v. DACM Inc.,

268 Cal. Rptr. 3d 642 (Ct. App.

2020) .................................... 10, 24, 27, 28, 29, 30

Middlesex Cnty. v. Gevyn Constr. Corp.,

450 F.2d 53 (1st Cir. 1971) ............................... 25

National R.R. Passenger Corp. v.

Consolidated Rail Corp.,

892 F.2d 1066 (D.C. Cir. 1990) ......................... 25

Perry v. Thomas,

482 U.S. 483 (1987) ............................................. 6

Rent-A-Center, West, Inc. v. Jackson,

561 U.S. 63 (2010) ............................................... 5

Shearson/American Express, Inc. v.

McMahon,

482 U.S. 220 (1987) ........................................... 21

Southland Corp. v. Keating,

465 U.S. 1 (1984) ................................................. 6

ix

Stolt-Nielsen S.A. v. AnimalFeeds Int’l

Corp.,

559 U.S. 662 (2010) ........................................... 18

Supak & Sons Mfg. Co. v. Pervel Indus.,

Inc.,

593 F.2d 135 (4th Cir. 1979) ............................. 26

Swanson v. H&R Block, Inc.,

475 F. Supp. 3d 967 (W.D. Mo. 2020) ............... 27

Trump v. Hawaii,

585 U.S. 667 (2018) ........................................... 17

Vaughn v. Tesla, Inc.,

303 Cal. Rptr. 3d 457 (Ct. App. 2023) ........ 24, 29

Viking River Cruises, Inc. v. Moriana,

596 U.S. 639 (2022) .... 6, 7, 15, 16, 17, 18, 20, 21

Volt Info. Scis., Inc. v. Board of Trs. of

Leland Stanford Junior Univ.,

489 U.S. 468 (1989) ........................................... 17

CONSTITUTION AND STATUTES:

U.S. CONST. art. VI, cl. 2 .......................................... 4

9 U.S.C.

§ 2 ............................... 1, 4, 5, 9, 15, 21, 22, 25, 26

§ 4 ........................................................... 21, 22, 25

28 U.S.C.

§ 1257(a) .............................................................. 4

x

CAL. CIV. CODE

§ 1770(a) ............................................................ 10

§ 3509 ................................................................. 14

§ 3511 ................................................................. 14

§ 3513 ............................................................. 9, 15

§ 3514 ................................................................. 14

§ 3538 ................................................................. 14

OTHER AUTHORITIES:

Klein, Jeffrey S., A Few Clauses to Help

Lawyers Along, L.A. TIMES (Sept. 14,

1989) .................................................................. 14

RESTATEMENT (SECOND) OF CONTRACTS

(1979)

§ 178 ................................................................... 23

§ 179 ................................................................... 23

1

INTRODUCTION

The FAA eliminates barriers to private dispute

resolution by mandating the enforcement of

arbitration agreements according to their terms and

preempting contrary state rules. 9 U.S.C. § 2. The

FAA provides a narrow exception for grounds “for the

revocation of any contract,” id., so long as they do not

alter the fundamental attributes of arbitration. The

California courts nevertheless have a storied history

of crafting anti-arbitration rules—and have now put

the finishing touches on another one.

The McGill rule first appeared in 2017, when the

California Supreme Court announced that an

arbitration agreement is not “enforceable insofar as it

purports to waive [the] right to seek public injunctive

relief in any forum.” McGill v. Citibank, N.A., 393

P.3d 85, 90 (Cal. 2017) (emphasis omitted). But for

several years, the scope of the McGill rule—i.e., which

requested injunctions would trigger it and render

arbitration agreements unenforceable—was unclear.

That state-law uncertainty militated against this

Court’s review.

Now, the uncertainty is gone. Over the past few

years, the California courts of appeal have uniformly

held that to trigger the McGill rule, a plaintiff need

only (i) seek a consumer-injunction under California’s

Unfair Competition Law (UCL) or Consumers Legal

Remedies Act (CLRA), and (ii) not expressly limit the

requested injunction to the plaintiff. The California

Supreme Court has denied review of those decisions

every time.

And because the UCL and CLRA

2

encompass every conceivable claim that a consumerplaintiff could assert, McGill is a death knell for

bilateral arbitration of consumer claims alleging

ongoing conduct.

Take this case as an example. Comcast offers

new cable and internet subscribers promotional rates

for fixed terms of service. When those terms expire,

customers roll over to month-to-month subscriptions

at non-promotional rates.

Respondent Charles

Ramsey alleges that when subscribers (including

Ramsey himself) threaten to cancel or downgrade

their subscriptions at the end of their promotional rate

terms, Comcast sometimes offers them additional

promotional rate terms. Ramsey seeks an injunction

under the UCL and CLRA requiring Comcast to either

stop that practice or affirmatively offer a new fixedterm contract with another promotional rate to all

subscribers nearing the end of promotional rate terms

(including those who do not threaten to cancel or

downgrade).

It is undisputed that Ramsey and Comcast had

agreed to arbitrate any disputes; Ramsey elected not

to opt out of arbitration. Their agreement provides

that “[t]he arbitrator may award injunctive 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.” But the trial court and

Court of Appeal denied Comcast’s petition to compel

arbitration. In line with every other California court

to address the issue, they held that the arbitration

agreement was not enforceable because any request

for a consumer-injunction under the UCL or CLRA

that is not expressly limited to the plaintiff triggers

3

McGill’s prohibition on waivers of “public injunctive

relief.”

This Court should clarify that the FAA does not

tolerate California’s anti-arbitration maneuvering.

The McGill rule’s purpose and effect are to prevent

arbitration of garden-variety consumer claims, while

interfering with fundamental attributes of arbitration.

In 2021, the Ninth Circuit (applying another

materially identical Comcast arbitration agreement)

held that the McGill rule did not extend to virtually

all claims for injunctions under the UCL and CLRA—

but also held unequivocally that the McGill rule could

not extend so broadly because the FAA would preempt

it. Hodges v. Comcast Cable Commc’ns, LLC, 21 F.4th

535, 544 (9th Cir. 2021). The California courts of

appeal (in direct conflict with the Ninth Circuit)

uniformly have applied McGill in that broad manner

while rejecting FAA preemption challenges, and the

California Supreme Court consistently has declined to

review their rulings. Although this Court previously

denied petitions seeking to challenge McGill when the

rule’s broad scope was unclear, that is no longer the

case. As a result, there is an entrenched federal-state

conflict on FAA preemption that this Court should

resolve.

This petition should be granted.

4

OPINIONS BELOW

The decision below of the California Court of

Appeal is published at 317 Cal. Rptr. 3d 561 and is

reproduced in the Appendix, infra at 1a-24a. The

order of the Superior Court of California for Santa

Clara County is not published but is reproduced in the

Appendix, infra at 27a-41a. The California Supreme

Court’s denial of Comcast’s petition for review is

reproduced in the Appendix, infra at 42a.

JURISDICTION

This Court has jurisdiction pursuant to 28 U.S.C.

§ 1257(a). The California Court of Appeal filed its

decision on December 29, 2023, and published its

decision on January 29, 2024. App., infra, 1a, 25a.

The California Supreme Court denied Comcast’s

timely petition for review on May 1, 2024. App., infra,

42a.

RELEVANT CONSTITUTIONAL AND

STATUTORY PROVISIONS

The Supremacy Clause of the United States

Constitution provides: “This Constitution, and the

Laws of the United States which shall be made in

Pursuance thereof; and all Treaties made, or which

shall be made, under the Authority of the United

States, shall be the supreme Law of the Land; and the

Judges in every State shall be bound thereby, any

Thing in the Constitution or Laws of any State to the

Contrary notwithstanding.” U.S. CONST. art. VI, cl. 2.

Section 2 of the Federal Arbitration Act provides:

“A written provision in any maritime transaction or a

contract evidencing a transaction involving commerce

5

to settle by arbitration a controversy thereafter

arising out of such contract or transaction, or the

refusal to perform the whole or any part thereof, or an

agreement in writing to submit to arbitration an

existing controversy arising out of such a contract,

transaction, or refusal, shall be valid, irrevocable, and

enforceable, save upon such grounds as exist at law or

in equity for the revocation of any contract or as

otherwise provided in chapter 4.” 9 U.S.C. § 2.

STATEMENT OF THE CASE

A.

Legal Background

1.

FAA Preemption

“The FAA was enacted in 1925 in response to

widespread

judicial

hostility

to

arbitration

agreements.” AT&T Mobility LLC v. Concepcion, 563

U.S. 333, 339 (2011).

Under Section 2, such

agreements “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 FAA thereby places arbitration agreements

on an equal footing with other contracts, and requires

courts to enforce them according to their terms.” RentA-Center, West, Inc. v. Jackson, 561 U.S. 63, 67 (2010)

(internal citations omitted).

Through the Supremacy Clause, the FAA

preempts state-law contract 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. For example, states

cannot “prohibit[] outright the arbitration of a

particular type of claim.” Id. at 341. Accordingly, this

Court held that the FAA preempted California rules

6

shielding wage-collection and state Franchise

Investment Law claims from arbitration. See Perry v.

Thomas, 482 U.S. 483, 492-493 (1987); Southland

Corp. v. Keating, 465 U.S. 1, 10 (1984).

In addition to displacing such rules that expressly

disfavor arbitration, the FAA “displaces any rule that

covertly accomplishes the same objective by

disfavoring contracts that (oh so coincidentally) have

the defining features of arbitration agreements,”

Kindred Nursing Centers Ltd. P’ship v. Clark, 581 U.S.

246, 251 (2017), and any rule that “stands as an

obstacle to the accomplishment and execution of the

full purposes and objectives of [the FAA],” Concepcion,

563 U.S. at 352. The latter category refers to rules

that undercut the core aspects of arbitration: There

“would not be a right to arbitrate in any meaningful

sense if generally applicable principles of state law

could be used to transform ‘traditiona[l] individualized

*** arbitration’ into the ‘litigation it was meant to

displace.’” Viking River Cruises, Inc. v. Moriana, 596

U.S. 639, 651 (2022) (alteration and ellipsis in

original) (quoting Epic Sys. Corp. v. Lewis, 584 U.S.

497, 509 (2018)).

The defining hallmarks of arbitration include its

“individualized and informal nature,” which promote

the “virtues” of “speed and simplicity and

inexpensiveness.” Epic, 584 U.S. at 508-509. Another

hallmark is customization: The “principal purpose of

the FAA is to ensur[e] that private arbitration

agreements are enforced according to their terms.”

Concepcion, 563 U.S. at 344 (alteration in original)

(emphasis added) (internal quotation marks omitted).

Parties can “shape such agreements to their liking” by

7

determining “the issues subject to arbitration” and

“the rules by which they will arbitrate.” Lamps Plus,

Inc. v. Varela, 587 U.S. 176, 184 (2019); see also Epic,

584 U.S. at 514 (parties may adopt “individualized

arbitration procedures of their own design”).

One way a state may impermissibly attempt to

transform traditional arbitration into quasi-litigation

is to forbid the waiver of certain categories of claims or

processes. States cannot “coerce parties into forgoing

their right to arbitrate *** by conditioning that right

on the use of a procedural format that makes

arbitration artificially unattractive.” Viking River,

596 U.S. at 656. For instance, California could not

condition the enforceability of arbitration agreements

on the availability of class action claims, because class

procedures are incompatible with streamlined

arbitration. See Concepcion, 563 U.S. at 344. Under

such a rule, moreover, parties would be dissuaded

from arbitrating because “the risk of an error” in the

class action context, without judicial safeguards, “will

often become unacceptable.” Id. at 350.

Relatedly, because “arbitration is a matter of

consent,” states cannot condition the enforcement of

arbitration agreements on the availability of “claims

that the parties did not jointly agree to arbitrate”—

which would result in “either judicial proceedings or

an arbitral proceeding that exceeds the scope jointly

intended by the parties.” Viking River, 596 U.S. at

660, 661.

2.

The McGill Rule

The rule applied below is the latest example of

California courts seeking to circumvent the FAA—and

8

in fact derives from a judge-made California rule that

targeted arbitration on its face.

For many years, California courts operated under

the Broughton-Cruz rule: “Agreements to arbitrate

claims for public injunctive relief” were deemed

contrary to public policy and thus “not enforceable.”

McGill, 393 P.3d at 88-89; see Cruz v. PacifiCare

Health Sys., Inc., 66 P.3d 1157 (Cal. 2003); Broughton

v. Cigna Healthplans of Cal., 988 P.2d 67 (Cal. 1999).

The California Supreme Court admitted that this

Court had “rejected numerous efforts and arguments

by state courts *** to declare certain classes of cases

not subject to arbitration.” Cruz, 66 P.3d at 1162. But

the California Supreme Court reasoned that there was

“an inherent conflict between arbitration and a

statutory injunctive relief remedy designed for the

protection of the general public.” Id. at 1163. When it

comes to such relief, “an arbitrator lack[s] the

institutional continuity and appropriate jurisdiction to

sufficiently enforce and, if needed, modify a public

injunction.” Id. at 1162. The California Supreme

Court’s solution to that “conflict” was to forbid the

arbitration of claims seeking public injunctive relief.

Id. at 1163.

On the heels of Concepcion, the Ninth Circuit

held that the FAA preempted the Broughton-Cruz rule

because the rule “prohibit[ed] outright the arbitration

of a particular type of claim.” Ferguson v. Corinthian

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

Concepcion, 563 U.S. at 341).

In McGill, rather than address that issue, the

California Supreme Court endeavored to craft a new

9

workaround rule:

“insofar as [an] arbitration

provision *** purports to waive [the] right to request

in any forum *** public injunctive relief, it is invalid

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

94. According to the court, the McGill rule followed

from a “maxim[] of jurisprudence” (enacted by the

California legislature in 1872) stating that “[a]ny one

may waive the advantage of a law intended solely for

his benefit. But a law established for a public reason

cannot be contravened by a private agreement.” CAL.

CIV. CODE § 3513.

Apparently to avoid a conflict between that

language and Section 2 of the FAA (which makes

private

agreements

to

arbitrate

generally

enforceable), the California Supreme Court cabined

Section 3513 to apply only when a plaintiff seeks

“public injunctive relief.” McGill, 393 P.3d at 94. Such

relief has “the primary purpose and effect of

prohibiting unlawful acts that threaten future injury

to the general public.” Id. at 87.

California courts of appeal have since uniformly

held that to trigger McGill (and thereby avoid a

standard arbitration agreement that does not allow an

arbitrator to award injunctive relief to non-parties), a

plaintiff need only seek a consumer injunction under

California’s UCL or CLRA statutes. See App., infra,

1a-24a, review denied May 1, 2024; Maldonado v. Fast

Auto Loans, Inc., 275 Cal. Rptr. 3d 82, 90-91 (Ct. App.

2021), review denied Apr. 28, 2021; Mejia v. DACM

Inc., 268 Cal. Rptr. 3d 642, 651 (Ct. App. 2020), review

denied Dec. 23, 2020.

10

But those statutes encompass virtually all

consumer claims. The CLRA prohibits “unfair or

deceptive acts or practices *** undertaken by any

person in a transaction intended to result or that

results in the sale or lease of goods or services to any

consumer.” CAL. CIV. CODE § 1770(a). And a plaintiff

can plead a claim under the UCL for “any unlawful,

unfair or fraudulent” business practice. Cel-Tech

Commc’ns, Inc. v. Los Angeles Cellular Tel. Co., 973

P.2d 527, 539-540 (Cal. 1999).

B.

Factual Background And Procedural

History

This case illustrates how McGill is thwarting

arbitration of everyday consumer claims in California.

1. Comcast offers new subscribers promotional

rates for fixed terms of service. App., infra, 2a-3a. At

the end of those promotional terms, customers roll

over to month-to-month subscriptions at higher nonpromotional rates. Ramsey has been a Comcast

subscriber since 2009. Id. at 2a. He alleges that when

he nears the end of a term of service, he contacts

Comcast and threatens to cancel or downgrade his

subscription. Id. at 3a. Comcast has offered Ramsey

similar promotional rates for new fixed terms of

service, which Ramsey has accepted. Id. at 3a-4a, 6a.

Ramsey calls these new promotional rates “secret

discounts” and alleges they violate the UCL and

CLRA. Id. at 4a-5a.

2. Ramsey and Comcast had agreed to arbitrate

any disputes, with Ramsey electing not to opt out of

arbitration. App., infra, 7a-8a, 46a. In doing so, they

agreed that an arbitrator could not award injunctive

11

relief to non-parties: “[T]he arbitrator may award

injunctive relief only in favor of the individual party

seeking relief and only to the extent necessary to

provide relief warranted by the individual party’s

claim, and the arbitrator may not award relief for or

against or on behalf of anyone who is not a party.” Id.

at 34a, 48a. In other words, Ramsey could assert his

claims under the UCL and CLRA in arbitration, but if

an arbitrator concluded that those claims were

meritorious, the arbitrator could award injunctive

relief only to Ramsey and only as necessary to provide

Ramsey complete relief.

3. The trial court denied Comcast’s petition to

compel arbitration.

The court held that the

arbitration agreement was unenforceable because

Ramsey “expressly request[ed] public injunctive relief”

under the UCL and CLRA rather than injunctive relief

that was “limited to him as an individual.” App., infra,

38a-39a. The court also rejected Comcast’s arguments

that the FAA preempts the McGill rule, even as the

rule was applied so broadly as to sweep in Ramsey’s

claims. Id. at 34a-35a.

4. The California Court of Appeal affirmed. It

held that Ramsey’s claims triggered McGill because (i)

the arbitration agreement “permitted the arbitrator to

grant only individual relief,” (ii) Ramsey “allege[d]

violations of California’s consumer protection

statutes—specifically, the CLRA and UCL,” and (iii)

Ramsey’s complaint did not “limit the requested

remedies to Ramsey himself or those similarly

situated.” App., infra, 2a, 12a, 17a. The Court of

Appeal also held that the FAA does not preempt the

12

McGill rule under binding California Supreme Court

precedent. Id. at 23a.

5. Comcast timely filed a petition for review with

the California Supreme Court presenting the question

whether the FAA preempts California’s McGill rule.

App., infra, 94a-157a. The California Supreme Court

denied Comcast’s petition for review on May 1, 2024,

in an order without an opinion. Id. at 42a.

REASONS FOR GRANTING THE WRIT

This Court should resolve the recurring and

important question—affecting nearly every consumer

claim otherwise subject to arbitration in California—

of whether the FAA preempts the McGill rule. The

answer is yes. McGill’s prohibition on waivers of

public injunctive relief—which amounts to a

prohibition on bilateral arbitration of consumer claims

seeking injunctions under California’s expansive

view—expressly targets arbitration agreements,

interferes with the fundamental attributes of

arbitration, and otherwise falls outside Section 2’s

saving clause.

Now is the right time, and this is the right case,

to resolve that issue. California and the Ninth Circuit

have divided on whether the FAA preempts McGill’s

prevailing application in the California courts, and the

California Supreme Court has made clear that the

conflict will not abate absent this Court’s intervention.

Unlike when this Court denied earlier petitions

challenging McGill, the rule’s reach—extending to

virtually any consumer case seeking an injunction—is

now settled in the California courts, as the decision

below confirms.

13

Time and again, this Court has stepped in to

address California’s efforts to circumvent the FAA.

This case is no different. The Court should grant the

petition.

I.

THE FAA PREEMPTS THE MCGILL RULE

UNDER THIS COURT’S PRECEDENTS

A.

McGill

Targets

Arbitration

And

Interferes

With

Fundamental

Attributes Of Arbitration

To comply with the FAA, California must not

discriminate

(expressly

or

covertly)

against

arbitration or interfere with the fundamental

attributes of arbitration. The McGill rule flunks that

test at each step. It derives its meaning from the fact

that an arbitration agreement is at issue, disfavors

arbitration, and interferes with arbitration’s

individualized, customizable, and procedurally

simplified characteristics.

Such a rule cannot

withstand FAA preemption under this Court’s

precedents.

1. The McGill rule expressly targets arbitration

agreements. See 393 P.3d at 87 (“[A] provision in a

predispute arbitration agreement that waives the

right to seek [public injunctive relief] in any forum ***

is contrary to California public policy and is thus

unenforceable under California law.”). As a practical

matter, moreover, the rule has been applied only to

arbitration agreements; any application to other

agreements is purely hypothetical. McGill thus

functions “much as if it were made applicable to

arbitration agreements and black swans.” Kindred

Nursing, 581 U.S. at 254.

14

McGill’s history reinforces that it was invented to

thwart arbitration. Once the California Supreme

Court realized that the FAA clearly preempted the

Broughton-Cruz rule, the court pivoted from its prior

statements that public injunctive relief is “inherently

incompatible” and in “conflict” with arbitration.

Broughton, 988 P.2d at 74; Cruz, 66 P.3d at 1165. The

court instead purported to derive the replacement

McGill rule from 1872 “maxims of jurisprudence” that

“aid in the[] just application” of the California Civil

Code (but do not purport to supply freestanding rules).

CAL. CIV. CODE § 3509. Although the maxims are

sometimes used by courts “to help explain or reinforce

a legal point,” until recently they were “almost buried

and forgotten,” likely because they “can mean

everything or nothing.” Jeffrey S. Klein, A Few

Clauses to Help Lawyers Along, L.A. TIMES (Sept. 14,

1989).1 For example: “Where the reason is the same,

the rule should be the same”; “One must so use his own

rights as not to infringe upon the rights of another”;

and “That is certain which can be made certain.” CAL.

CIV. CODE §§ 3511, 3514, 3538.

The maxim that McGill invoked—“a law

established for a public reason cannot be contravened

by a private agreement,” Cal. Civ. Code § 3513—had

not been applied to prevent the enforcement of an

arbitration agreement for nearly a century-and-a-half

(and has still never been applied as a ground “for the

revocation of any contract,” 9 U.S.C. § 2 (emphasis

1 Available at https://www.latimes.com/archives/la-xpm1989-09-14-vw-147-story.html.

15

added)). 2 That is presumably because the FAA

mandates that (i) private agreements “to settle by

arbitration a controversy” can contravene a law

providing for some other form of dispute resolution, 9

U.S.C. § 2, and (ii) such agreements can include

certain waivers to preserve the benefits of arbitration

regardless of state law, see, e.g., Concepcion, 563 U.S.

at 344, 350. If a state rule could shield controversies

from arbitration merely because the rule was (like any

other law) “established for a public reason,” there

would be nothing left of the FAA’s enforcement

mandate. By arbitrarily cabining Section 3513 to

claims for “public injunctive relief,” the California

Supreme Court may have confined this conflict with

the FAA to a particular (broad) sphere—but the

conflict remains.

2. In any event, the McGill rule plainly interferes

with fundamental attributes of arbitration. As this

Court has cautioned, “we must be alert to new devices

and formulas” reflecting “judicial antagonism toward

arbitration,” including formulas that “interfere with

*** arbitration’s fundamental attributes.” Epic, 584

U.S. at 508-509. Although the FAA does not require

enforcement of every “waiver[] of substantive rights

and remedies” in an arbitration agreement, the FAA

2 The California Supreme Court cited Section 3513 in the

arbitration context for the first time in Iskanian v. CLS

Transportation Los Angeles, LLC, 327 P.3d 129, 148-149 (Cal.

2014) (holding, in part based on Section 3513, that “an employee’s

right to bring a PAGA [California Private Attorneys General Act]

action is unwaivable”). This Court held that “the FAA preempts

the rule of Iskanian insofar as it precludes division of PAGA

actions into individual and non-individual claims through an

agreement to arbitrate.” Viking River, 596 U.S. at 662.

16

will not tolerate an anti-waiver regime “at odds with

arbitration’s basic form.” Viking River, 596 U.S. at

653, 656. McGill is such a regime. It not only

eliminates parties’ ability to customize arbitration

agreements to limit non-party relief, but also conflicts

with the FAA by defining public injunctive relief

broadly to include garden-variety consumer claims. At

the same time, it requires adjudication of claims with

a degree of procedural complexity that undermines the

efficiency, and thus desirability, of arbitration.

a. As an initial matter, McGill unduly interferes

with parties’ ability to craft “individualized arbitration

procedures of their own design.” Epic, 584 U.S. at 514.

Parties to arbitration agreements have good reason to

preclude non-party relief. An Article III court lacks

the authority to issue an injunction “more burdensome

to the defendant than necessary to [redress]” the

plaintiff’s injuries. Labrador v. Poe ex rel. Poe, 144 S.

Ct. 921, 923 (2024) (Gorsuch, J., concurring in the

grant of stay) (alteration in original) (quoting Califano

v. Yamasaki, 422 U.S. 682, 702 (1979)); see also Food

& Drug Admin. v. Alliance for Hippocratic Med., 602

U.S. 367, 402 (2024) (Thomas, J., concurring) (“[N]o

party should be permitted to obtain an injunction in

favor of nonparties.”). But federal courts “have

provided a workaround *** through the invention of

the so-called ‘universal injunction.’” Alliance for

Hippocratic Med., 602 U.S. at 401-402 (Thomas, J.,

concurring).

Such injunctions are anything but

private—rather than “resolve individual cases and

controversies,” they deal in “general questions of

legality.” Trump v. Hawaii, 585 U.S. 667, 719 (2018)

(Thomas, J., concurring).

17

If the idea of private dispute resolution means

anything, it means that contracting parties can at

least incorporate Article III’s traditional limitation on

non-party relief in their arbitration agreements. And

they routinely do. See, e.g., Cedeno v. Sasson, 100

F.4th 386, 417 & n.17 (2d Cir. 2024) (Menashi, J.,

dissenting) (describing a similar agreement requiring

such “individualized arbitration” as merely imposing a

“familiar process of case-by-case adjudication” that

reflects “how equitable remedies work”). That modest

constraint prevents an arbitrator from entering a

sweeping universal injunction without regard for the

status of the actual parties to the arbitration

agreement.

But McGill renders arbitration agreements

containing such limitations unenforceable whenever a

party requests a garden-variety consumer injunction.

The result is that parties to an arbitration agreement

are faced with an “unacceptable choice.” Viking River,

596 U.S. at 651. Although “[a]rbitration is strictly ‘a

matter of consent,’” Granite Rock Co. v. International

Brotherhood of Teamsters, 561 U.S. 287, 299 (2010)

(quoting Volt Info. Scis., Inc. v. Board of Trs. of Leland

Stanford Junior Univ., 489 U.S. 468, 479 (1989)),

parties that agreed their disputes would be resolved

by an arbitrator who may not award non-party

injunctive relief must acquiesce to either “judicial

proceedings or an arbitral proceeding that exceeds the

scope jointly intended by the parties,” Viking River,

596 U.S. at 660-661. Put another way, McGill results

in one of two unacceptable outcomes. Option 1: The

parties face non-enforcement of their arbitration

agreement whenever a party seeks a consumer

18

injunction. App., infra, 12a, 20a-21a. Option 2: The

parties forgo their right to limit their dispute to

preclude non-party relief, and thus face the prospect of

an arbitrator awarding a “public” (i.e., universal at

least within California) injunction.

Accordingly, under McGill, if a party wishes to

arbitrate at all, it must arbitrate massive-scale

disputes without the protective (if cumbersome)

“procedural rigor and appellate review of the courts.”

Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S.

662, 685 (2010). That makes “the risk of an error”

without

judicial

safeguards

“unacceptable.”

Concepcion, 563 U.S. at 350.

b. Like the class action claims discussed in

Concepcion, claims for public injunctive relief (as

broadly construed in California courts) often entail the

sort of procedural complexity that the parties sought

to avoid in arbitration. That reality undermines “the

principal advantage of arbitration—its informality.”

563 U.S. at 348.

The California Supreme Court previously held

that claims for public injunctive relief are so

antithetical to arbitration that they could not be

arbitrated. See Broughton, 988 P.2d at 76. Although

that rule flouts the FAA by prohibiting arbitration of

such claims, the California Supreme Court’s concerns

confirm that prohibiting parties from agreeing to

waive such claims in arbitration would improperly

cramp their ability to keep private dispute resolution

private.

For similar reasons, the Ninth Circuit has

recognized that mandating the availability of

19

sweeping non-party injunctions under the UCL and

CLRA would destroy basic features of arbitration. See

Hodges, 21 F.4th at 547. As Judge Collins explained,

“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 California Supreme Court itself

recognized in Broughton.” Id. at 548 (citing 988 P.2d

at 77). The implementation of public injunctions in

UCL and CLRA cases would often “require evaluation

of the individual claims of numerous non-parties,”

potentially including any member of the general public

or (more commonly) a specific subset of the public not

before the adjudicator. Id. at 547.

This case illustrates the problem. Administering

an injunction that extends to members of the general

public beyond the plaintiff would, at a minimum,

require examining Comcast’s communications with

“each individual” present and future subscriber on a

promotional term agreement. Hodges, 21 F.4th at 545.

As to each, there would be questions about whether

Comcast had an obligation to communicate pricing

information and whether Comcast satisfied that

obligation. The complications would multiply if either

party sought modification or vacatur of the arbitral

injunction, which may not even be possible. See

Broughton, 988 P.2d at 75-76.

All of this is

“fundamentally incompatible with the sort of

simplified procedures the FAA protects.” Hodges, 21

F.4th at 548. “To say that such a rule is not preempted

would flout Supreme Court authority.” Id.

To be sure, this Court in Viking River stated that

the FAA “do[es] not mandate the enforcement of

20

waivers of representative capacity as a categorical

rule”—in particular, for “single-agent, single-principal

representative suits” under PAGA. 596 U.S. at 657.

But that predicate statement does not aid respondent

here. The California Supreme Court in McGill itself

recognized that a request for public injunctive relief

under the California consumer protection statutes at

issue here (unlike a PAGA claim) “does not constitute

the pursuit of representative claims.” McGill, 393

P.3d at 92-93 (emphasis added) (internal quotation

marks and alterations omitted); see also Cedeno, 100

F.4th at 413, 416 (Menashi, J., dissenting)

(emphasizing that Viking River’s statements about

waivers of “single-principal representative-capacity

suit[s]” are inapplicable to suits that “do[] not

resemble any of the traditional types of representative

actions that [Viking River] references”). At the same

time, according to the California Supreme Court, a

plaintiff seeking public injunctive relief sues “not to

resolve a private dispute but to remedy a public

wrong.” Broughton, 988 P.2d at 76 (emphases added).

Such a plaintiff does not merely “assert claims on

behalf of absent principals,” Viking River, 596 U.S. at

657, but rather asserts claims “for the benefit of the

general public” more broadly, Broughton, 988 P.2d at

78.

Accordingly, as the Ninth Circuit recognized,

public injunctive relief (as California courts uniformly

construe it) entails a burdensome inquiry as to varied

impacts on “numerous non-parties.” Hodges, 21 F.4th

at 547. The McGill rule thus does not qualify for

Viking River’s (limited) PAGA-specific carve-out from

FAA preemption for individual claims.

21

B.

McGill Is Not A Ground For The

“Revocation” Of Any Contract

The FAA preempts the McGill rule for the

independent reason that under the plain text of

Section 2, arbitration agreements are “enforceable,

save upon such grounds as exist at law or in equity for

the revocation of any contract.” 9 U.S.C. § 2 (emphases

added). This Court has repeatedly confirmed that the

saving clause’s plain text means what it says: “Absent

a well-founded claim that an arbitration agreement

resulted from the sort of fraud or excessive economic

power that would provide grounds for the revocation

of any contract,” the FAA “provides no basis” for nonenforcement. Shearson/American Express, Inc. v.

McMahon, 482 U.S. 220, 226 (1987) (internal

quotation marks omitted); see also Dean Witter

Reynolds, Inc. v. Byrd, 470 U.S. 213, 218 (1985)

(“[A]greements to arbitrate must be enforced, absent a

ground for revocation of the contractual agreement.”).3

Grounds for the revocation of any contract must

concern “the formation of the arbitration agreement.”

Epic, 584 U.S. at 525 (Thomas, J., concurring);

American Express Co. v. Italian Colors Rest., 570 U.S.

228, 239 (2013) (Thomas, J., concurring); Concepcion,

563 U.S. at 353 (Thomas, J., concurring). As Section 4

of the FAA states, “upon being satisfied that the

making of the agreement for arbitration or the failure

3 In Epic, this Court “[p]ut to the side the question of what

it takes to qualify as a ground for ‘revocation’ of a contract” while

holding on other grounds that the FAA required honoring the

parties’ arbitration agreement, suggesting (again) that the

“revocation” question could be dispositive in an appropriate case.

584 U.S. at 507.

22

to comply therewith is not in issue,” a court must order

arbitration “in accordance with the terms of the

agreement.” 9 U.S.C. § 4 (emphasis added). “Reading

§§ 2 and 4 harmoniously, the ‘grounds *** for the

revocation’ preserved in § 2 would mean grounds

related to the making of the agreement.” Concepcion,

563 U.S. at 355 (Thomas, J., concurring) (ellipsis in

original). “This would require enforcement of an

agreement to arbitrate unless a party successfully

asserts a defense concerning the formation of the

agreement to arbitrate, such as fraud, duress, or

mutual mistake.” Id. “Contract defenses unrelated to

the making of the agreement—such as public policy—

could not be the basis for declining to enforce an

arbitration clause.” Id.

Those principles confirm that the FAA preempts

the McGill rule. A rule that a “waiver[]” is “illegal ***

is a public-policy defense.” Epic, 584 U.S. at 525-526

(Thomas, J., concurring) (citing RESTATEMENT

(SECOND) OF CONTRACTS §§ 178-179 (1979)); McMullen

v. Hoffman, 174 U.S. 639, 669-670 (1899)). Indeed, in

McGill itself the California Supreme Court (i) invoked

“California public policy” and (ii) characterized its rule

a ground for non-enforcement, not revocation. 393

P.3d at 87. There is no basis to conclude the McGill

rule falls within the saving clause.

23

II.

REVIEW IS NECESSARY TO RESOLVE AN

ENTRENCHED

FEDERAL

STATE

CONFLICT

A.

The Ninth Circuit And California

Courts Disagree About Whether The

FAA Preempts The Latter’s Application

Of McGill

The problem with the decision below is not simply

that it is wrong. It also widens and cements an

entrenched split between California courts and the

Ninth Circuit on the question whether the prevailing

application of McGill is preempted.

In 2021, the Ninth Circuit declined to read McGill

to cover virtually “any injunction against future illegal

conduct.” Hodges, 21 F.4th at 547. But “even if we are

wrong,” the court explained, the Ninth Circuit would

reject the “broader reading” applied by the California

courts of appeal “for the independent and alternative

reason” that the “rule is preempted by the FAA.” Id.

According to the Ninth Circuit, the conception of

public injunctive relief adopted by the California

courts and applied below “plainly interfere[s] with the

informal, bilateral nature of traditional consumer

arbitration.” Id. at 544 (internal quotation marks

omitted). And the Ninth Circuit so held in a nearly

identical context: a motion to compel arbitration,

under a Comcast agreement, of a plaintiff’s attempt to

seek public injunctive relief under California’s UCL.

Id. at 538.

In stark contrast to Hodges, the California courts

of appeal (including in the decision below) have

uniformly held that their broad application of the

24

McGill rule is not preempted and rejected the Ninth

Circuit’s contrary analysis, see App., infra, 18a-19a,

23a; Maldonado, 275 Cal. Rptr. 3d at 91 n.1, 93

(holding that the “FAA does not preempt” the Court of

Appeal’s holding that any request “to enjoin future

violations of the CLRA and UCL” triggers McGill,

while addressing an injunction that would prohibit a

lender from charging unconscionable interest rates

(emphasis omitted)); Mejia, 268 Cal. Rptr. 3d at 647,

653 (same as to an injunction that would require a

motorcycle dealer to provide purchasers with

financing terms in a single document); see also Vaughn

v. Tesla, Inc., 303 Cal. Rptr. 3d 457, 475 n.16 (Ct. App.

2023) (rejecting Hodges). The California Supreme

Court has declined to disturb those decisions every

time.

Accordingly, the Ninth Circuit will continue

refusing to apply the California courts’ broad reading

of McGill on FAA preemption grounds. But the

California courts will apply that reading and deny any

conflict with the FAA. There is thus a solidified

federal-state conflict on FAA preemption that this

Court must resolve because the California Supreme

Court has not—and there is no reason to think it will.

B.

The California Courts’ Expansion Of

Section 2 Conflicts With Decisions Of

Federal Courts Of Appeals

Contrary to McGill and the California decisions

applying it, some federal courts of appeals have

recognized that because “the saving clause *** is

limited to ‘revocation,’” it applies only to “an unmaking

resulting from the mutual cancellation of the contract

25

*** or the voiding of the transaction due to fraud,

mistake or duress.” Halcon Int’l, Inc. v. Monsanto

Austl. Ltd., 446 F.2d 156, 159 (7th Cir. 1971); accord

Middlesex Cnty. v. Gevyn Constr. Corp., 450 F.2d 53,

56 (1st Cir. 1971) (“[T]he only grounds for revocation

which meet the requirement of 9 U.S.C. § 2 are mutual

agreement or a condition which vitiates the agreement

ab initio, i.e., fraud, mistake, or duress,” because “it is

only this kind of ‘revocation’ which can be harmonized

with adjudication directed to ‘the making of the

agreement for arbitration’” (quoting 9 U.S.C. § 4)).

Other federal courts of appeals have strongly

suggested that the saving clause applies only to

formation-related defenses.

See National R.R.

Passenger Corp. v. Consolidated Rail Corp., 892 F.2d

1066, 1070 (D.C. Cir. 1990) (Section 2 indicates “that

Congress created an exception to the general rule (that

an arbitration clause will be enforced by its terms)

only when there is a flaw in the formation of the

agreement to arbitrate,” “especially when read in

conjunction with [Section] 4”); Supak & Sons Mfg. Co.

v. Pervel Indus., Inc., 593 F.2d 135, 137 (4th Cir. 1979)

(“Section 2 dictates the effect of a contractually

agreed-upon arbitration provision, but it does not

displace state law on the general principles governing

formation of the contract itself.”).

These statements are irreconcilable with the

McGill rule, which (as discussed) does not even

purport to be a ground for the revocation of any

contract.

26

III. REVIEW IS WARRANTED IN THIS CASE

A.

The

Question

Presented

Exceptionally Important

Is

As noted, McGill renders standard bilateral

arbitration agreements unenforceable when a plaintiff

seeks a garden-variety injunction in a consumer case.

Given the breadth of the UCL and CLRA, virtually any

plaintiff alleging ongoing conduct can include a

request for an injunction under those statutes and

circumvent an arbitration agreement that does not

allow an arbitrator to award injunctive relief to nonparties. Because such agreements are commonplace

among parties seeking private and bilateral dispute

resolution, the McGill rule—as expansively applied by

the California courts—is all but eliminating consumer

arbitration in California.

The effects of letting such a rule stand are felt not

only in California but nationwide. California has the

largest economy in the United States and fifth largest

in the world. When California circumvents the FAA,

companies must structure their operations and parties

must structure their arbitration agreements around

California’s policies. That is particularly true because

California law frequently applies in other states,

whether because a transaction originated in

California, as a matter of contract, under a choice-oflaw analysis, or due to the breadth of the law itself.

See, e.g., In re StockX Customer Data Sec. Breach

Litig., No. 19-12441, 2021 WL 2434169 (E.D. Mich.

June 15, 2021) (holding that California law applies

and denying motion to compel arbitration based on

McGill); Swanson v. H&R Block, Inc., 475 F. Supp. 3d

27

967, 970, 975 (W.D. Mo. 2020) (holding that California

law applies but that McGill is preempted in action

filed by California resident).

B.

The Legal Landscape Has Changed

Since Prior Petitions

In 2020 and 2021, this Court denied several

certiorari petitions seeking to challenge the McGill

rule. At that time, the rule’s reach was much less clear

as a matter of state law. For example, Comcast filed a

petition before the California courts of appeal decided

Mejia, Maldonado, and the decision below. See

Comcast Corp. v. Tillage, No. 19-1066 (U.S. Feb. 27,

2020). As respondents in that case pointed out, it was

uncertain then whether virtually all requested

injunctions under the CLRA or UCL would trigger

McGill, or whether California courts would apply a

“detailed analysis” on a case-by-case basis to

determine whether the requested injunction would

primarily benefit the general public. See Br. in Opp.

30, Comcast Corp. v. Tillage, No. 19-1066 (U.S. Apr.

24, 2020).

Certiorari-stage

briefing

in

Maldonado

highlighted more of the same uncertainty. After the

California Court of Appeal held that any request for a

CLRA or UCL injunction would trigger McGill, and

after a petition had been filed in this Court, the Ninth

Circuit decided Hodges. As discussed above, Hodges

construed McGill narrowly (while alternatively

rejecting Mejia and Maldonado’s “broader reading” as

preempted by the FAA). 21 F.4th at 547. Before this

Court, the respondents in Maldonado endorsed the

broad version of McGill as applied there, i.e., that “any

28

injunction that prohibits future violations of

California’s consumer protection statutes constitutes

a public injunction.” Br. in Opp. 8, Fast Auto Loans,

Inc. v. Maldonado, No. 21-31 (U.S. Nov. 8, 2021)

(internal quotation marks omitted). But they pointed

to Hodges as demonstrating “the unsettled scope of the

state-law rule,” which could have “present[ed] a

serious impediment to intelligent resolution of the

federal [FAA] issue.” Id. at 3. The Maldonado

respondents noted that a rehearing en banc petition

with a request for certification to the California

Supreme Court was pending in Hodges. Id. at 10. And

they emphasized that this Court should not assume

anything about the scope of McGill because the

California Supreme Court had “not yet had an

opportunity to (and may soon)” weigh in. Id. at 3; see

also id. at 6 (“The California Supreme Court has not

yet weighed in on this dispute” (emphasis added)), 26

(arguing this Court must wait for the California

Supreme Court to “rule[] on what constitutes a public

injunction”).

Three years later, none of the Maldonado

respondents’ predictions have come to pass. The

Ninth Circuit did not grant rehearing en banc or

certify a question to the California Supreme Court.

And the California Supreme Court has not granted

review in any case concerning the McGill rule or

otherwise indicated any intent to address its scope.

Meanwhile, the California courts of appeal have

uniformly held that a plaintiff need only seek a

consumer injunction under the UCL or CLRA to

trigger McGill. See App., infra, 12a, 20a-21a, review

denied May 1, 2024; accord Vaughn, 303 Cal. Rptr. 3d

29

at 475 n.16, review denied April 12, 2023; Maldonado,

275 Cal. Rptr. 3d at 90-91, review denied Apr. 28, 2021;

Mejia, 268 Cal. Rptr. 3d at 651, review denied Dec. 23,

2020. The opinion below encapsulated the California

courts’ consensus approach while rejecting Hodges: all

“injunctions issued under the CLRA and UCL [are]

injunctions that benefit the public.” App., infra, 20a21a.

For all practical purposes, that broad scope of

McGill is settled as a matter of California law. The

California Supreme Court has repeatedly declined to

alter the status quo, which will continue as prevailing

law in the California courts (but not the Ninth Circuit)

without this Court’s intervention.

C.

This Case Is A Good Vehicle

Comcast has preserved all relevant FAA

preemption arguments at every stage of this litigation.

Those arguments were pressed and passed upon

below.

Because McGill itself rejected an FAA

preemption challenge, the California courts of appeal

(as in this case) simply cite that analysis. See App.,

infra, 23a; Maldonado, 275 Cal. Rptr. 3d at 93; Mejia,

268 Cal. Rptr. 3d at 706. So further percolation serves

no purpose here. California courts will continue to

follow their unbroken expansion of the McGill rule

unless and until this Court steps in. Meanwhile,

defendants sued in state court will have no recourse

despite the Ninth Circuit’s holding that the FAA

preempts such an expansion—in the context of a

materially identical Comcast arbitration agreement,

no less. See Hodges, 21 F.4th at 538-539 & n.1.

Indeed, the Court could not ask for a starker conflict:

30

the same defendant (Comcast) is subject to two

diametrically opposed sets of rules and results in

California depending on which court (state or federal)

it is sued.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

Pratik A. Shah

Counsel of Record

Michael Weisbuch

Marshall Baker

AKIN GUMP STRAUSS

HAUER & FELD LLP

Counsel for Petitioners

September 27, 2024