Amicus Curiae Brief — Comcast Cable Communications, LLC, Petitioner v. Charles Ramsey

No. 24-365

IN THE

Supreme Court of the United States

___________

COMCAST CABLE COMMUNICATIONS, LLC,

v.

Petitioner,

CHARLES RAMSEY,

Respondent.

___________

On Petition for a Writ of Certiorari

to the California Court of Appeal

___________

BRIEF OF WASHINGTON LEGAL FOUNDATION

AS AMICUS CURIAE IN SUPPORT OF PETITIONER

___________

October 28, 2024

CORY L. ANDREWS

Counsel of Record

WASHINGTON LEGAL

FOUNDATION

2009 Massachusetts Ave., NW

Washington, DC 20036

(202) 588-0302

candrews@wlf.org

QUESTIONS PRESENTED

Whether the Federal Arbitration Act preempts

California’s public policy, set forth in McGill v.

Citibank, N.A., 393 P.3d 85 (Cal. 2017) and its

progeny, refusing to enforce arbitration clauses that

waive claims for “public injunctive relief.”

iii

TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................... iv

INTEREST OF AMICUS CURIAE ......................... 1

SUMMARY OF ARGUMENT.................................. 2

ARGUMENT ............................................................ 5

I.

REVIEW IS NEEDED BECAUSE MCGILL IS

BIASED AGAINST ARBITRATION IN

PRINCIPLE ....................................................... 5

II.

REVIEW IS NEEDED BECAUSE MCGILL IS

BIASED AGAINST ARBITRATION IN

PRACTICE ........................................................ 6

III.

REVIEW IS NEEDED BECAUSE CALIFORNIA

COURTS PERSIST IN REFUSING TO

ENFORCE THE FAA ......................................... 9

CONCLUSION ....................................................... 14

iv

TABLE OF AUTHORITIES

Page(s)

Cases:

Ajamian v. CantorCO2e, L.P.,

203 Cal. App. 4th 771 (2012) ................................ 8

Am. Tel. & Tel. Co. v. Cent. Off. Tel., Inc.,

524 U.S. 214 (1998) ............................................. 11

Armendariz v. Found. Health Psychcare Servs.,

6 P.3d 669 (Cal. 2000) ........................................... 8

AT&T Mobility LLC v. Concepcion,

563 U.S. 333 (2011) ......................... 4, 6, 7, 8, 9, 11

Bickel v. Sunrise Assisted Living,

206 Cal. App. 4th 1 (2012) .................................... 8

Broughton v. Cigna Healthplans of Cal.,

988 P.2d 67 (Cal. 1999) ....................................... 13

DIRECTV, Inc. v. Imburgia,

577 U.S. 47 (2015) ......................................... 10, 11

Discover Bank v. Superior Ct. of L.A. Cnty.,

113 P.3d 1100 (Cal. 2005) ................................... 11

Doctor’s Assocs., Inc. v. Casarotto,

517 U.S. 681 (1996) ............................................. 10

Epic Sys. Corp. v. Lewis,

578 U.S. 437 (2018) ............................................... 1

Hodges v. Comcast Cable Commc’ns, LLC,

21 F.4th 535 (9th Cir. 2021) ................................. 4

Iskanian v. CLS Transportation Los Angeles,

327 P.3d 129 (Cal. 2014) ............................... 11, 12

v

TABLE OF AUTHORITIES

(Continued)

Page(s)

Kindred Nursing Ctrs. Ltd. P’ship v. Clark,

581 U.S. 246 (2017) ............................................... 2

McGill v. Citibank, N.A.,

393 P.3d 85 (Cal. 2017) ................. 2, 3, 4, 5, 6, 7, 8

McGovern v. U.S. Bank N.A.,

362 F. Supp. 3d 850 (S.D. Cal. 2019).................... 6

Nat’l Shooting Sports Found., Inc. v. State,

420 P.3d 870 (Cal. 2018) ....................................... 6

Oblix, Inc. v. Winiecki,

374 F.3d 488 (7th Cir. 2004) ............................... 13

Samaniego v. Empire Today LLC,

205 Cal. App. 4th 1138 (2012) .............................. 8

Serafin v. Balco Properties Ltd., LLC,

235 Cal. App. 4th 165 (2015) ................................ 8

Shearson/Am. Exp. Inc. v. McMahon,

482 U.S. 220 (1987) ............................................... 1

Sonic-Calabasas A, Inc. v. Moreno,

311 P.3d 184 (Cal. 2013) ................................... 7, 8

Viking River Cruises, Inc. v. Moriana,

596 U.S. 639 (2022) ................................... 1, 11, 12

Constitutional Provision:

U.S. Const. art. VI, cl. 2 ........................................... 6

Statutes:

9 U.S.C. § 2 ....................................................... 1, 3, 6

vi

TABLE OF AUTHORITIES

(Continued)

Page(s)

Cal. Civ. Code § 3513 ................... 3, 5, 6, 7, 8, 11, 12

Cal. Civ. Code § 3515 ............................................... 5

Cal. Civ. Code § 3538 ............................................... 5

Cal. Civ. Code § 3545 ............................................... 5

Cal. Civ. Code § 3546 ........................................... 5, 6

Miscellaneous:

Alan Greenspan & Adrian Wooldridge, Capitalism

in America: A History (2018) .............................. 14

Joint Hearings on S. 1005 and H. R. 646 before

the Subcommittees on the Judiciary, 68th

Cong., 1st Sess. (1924) .......................................... 2

Jeffrey S. Klein, A Few Clauses to Help Lawyers

Along, L.A. Times (Sept. 14, 1989),

https://perma.cc/BJ5F-TVLU................................ 5

John F. Querio, Courts in California Enable

End-Run of Federal Arbitration Act by Expanding

Obscure State Labor Law, WLF LEGAL

BACKGROUNDER (June 16, 2017),

https://perma.cc/ 29JD-4DYN ............................... 1

Paul Thomas, Note, Conscionable Judging: A Case

Study of California Courts’ Grapple with

Challenges to Mandatory Arbitration

Agreements, 62 Hastings L.J. 1065 (2011) ..... 9–10

1

INTEREST OF AMICUS CURIAE *

Washington Legal Foundation is a nonprofit,

public-interest law firm and policy center with

supporters nationwide. WLF promotes free

enterprise, individual rights, limited government,

and the rule of law. WLF often appears as an amicus

curiae in important Federal Arbitration Act cases.

See, e.g., Viking River Cruises, Inc. v. Moriana, 596

U.S. 639 (2022); Epic Sys. Corp. v. Lewis, 578 U.S. 437

(2018). And WLF’s Legal Studies Division regularly

publishes papers by outside experts on arbitration.

See, e.g., John F. Querio, Courts in California Enable

End-Run of Federal Arbitration Act by Expanding

Obscure

State

Labor

Law,

WLF

LEGAL

BACKGROUNDER (June 16, 2017), https://perma.cc/

29JD-4DYN.

The FAA “establishes a federal policy favoring

arbitration.” Shearson/Am. Exp. Inc. v. McMahon,

482 U.S. 220, 226 (1987). Under that federal policy,

an arbitration clause in a contract involving

commerce is valid and enforceable. 9 U.S.C. § 2. True,

the FAA contains a saving clause, but it says merely

that an arbitration clause may be invalidated based

on any ground “for revocation of any contract”—that

is, on a generally applicable contract defense. Id. If

the federal policy favoring arbitration is to be upheld,

the FAA’s saving clause must be taken to mean no

more than what it says.

* No party’s counsel authored any part of this brief. No

person or entity, other than Washington Legal Foundation and

its counsel, contributed money for preparing or submitting this

brief. WLF timely notified all counsel of record of its intent to file

this brief.

2

But a specter is haunting the California

Reports—a specter named McGill. Created by the

California Supreme Court in 2017, the McGill rule—

and a line of decisions applying it—enables parties to

use a free-floating state public policy (rather than a

contract defense) to nullify a duly executed

arbitration clause. See McGill v. Citibank, N.A., 393

P.3d 85, 87–88 (Cal. 2017). As wielded by the

California courts, the McGill rule renders an

otherwise valid arbitration agreement unenforceable

whenever a consumer seeks to enjoin virtually any

allegedly unlawful business practice. McGill thus

expands the reach of § 2’s saving clause far beyond

what its words can bear. It also “covertly” (and

improperly) transforms a supposedly general rule into

a precision tool for “disfavoring contracts that (oh so

coincidentally) have the defining features of

arbitration agreements.” Kindred Nursing Ctrs. Ltd.

P’ship v. Clark, 581 U.S. 246, 251 (2017).

The California courts have struggled

notoriously to apply this Court’s FAA decisions. The

petition offers the Court a clean vehicle for

vindicating the FAA and ending the havoc McGill has

wrought.

SUMMARY OF ARGUMENT

Litigation is expensive. It’s expensive for

businesses, which must pay lawyers to try cases and

employees to miss work to testify. It’s expensive for

consumers and workers, who cover businesses’ costs

through higher prices and lower wages. It’s expensive

for the judiciary, which must pay for “judges,

attendants, light, heat, and power—and even

ventilation in some courthouses.” Joint Hearings on

3

S. 1005 and H. R. 646 before the Subcommittees on

the Judiciary, 68th Cong., 1st Sess. (1924) (statement

of Charles L. Bernheimer). And it’s expensive for the

average citizen; for just as corporate litigation

expenses are really consumer and worker expenses,

the judiciary’s expenses are really taxpayer expenses.

It’s no mystery, then, why Congress passed the

FAA. Courts had long refused to enforce most

arbitration agreements, and this meant that more

disputes remained in litigation. To save people time,

money, and trouble, Congress empowered courts to

enforce otherwise valid clauses, in contracts

“involving commerce,” that require streamlined

private dispute resolution—arbitration. 9 U.S.C. § 2.

But the FAA contains a qualification. Under the

FAA’s saving clause, an arbitration agreement that is

otherwise enforceable under federal law remains

subject to any generally applicable state-law contract

defense. Id.

The McGill rule is not such a defense. It instead

arises from California Civil Code § 3513, a state

“maxim of jurisprudence” that says: “a law

established for a public reason cannot be contravened

by private agreement.” California’s maxims of

jurisprudence are not contract defenses; they are (at

most) guiding principles for interpreting statutes. A

court that partially or entirely invalidates an

arbitration clause because it conflicts with one of

these maxims has not properly applied the FAA’s

saving clause; it has simply ignored the FAA and

flouted the Supremacy Clause.

At all events, a court may not apply even a

generally applicable contract defense in a way that

4

will

“disproportionate[ly]

impact”

arbitration

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

U.S. 333, 342 (2011). Yet the California courts have

battled this Court, for decades, over the State’s antiarbitration rules. Contrary to this Court’s giving full

effect to the FAA’s language and the Supremacy

Clause, California courts do not want to enforce dulyexecuted arbitration agreements. McGill is perhaps

the

most

brazen

example

of

California’s

determination to skirt the FAA. Yet many California

courts behave as if they can only ignore this Court’s

FAA precedent long enough, then some of their antiFAA decisions will evade review. This Court should

disabuse California courts of that belief.

True, the Ninth Circuit has squarely held that

California’s McGill rule can’t extend to avoid FAA

preemption for nearly every claim for injunctive relief

under California law. Hodges v. Comcast Cable

Commc’ns, LLC, 21 F.4th 535, 544 (9th Cir. 2021).

But that federal holding has no purchase in California

courts, as this case shows. Pet. App. 19a (disagreeing

with both the holding of Hodges and the Ninth

Circuit’s characterization of an expanded McGill

rule). As the petition confirms, the California courts’

split with the Ninth Circuit on this vital issue only

exacerbates the problem. See Pet. 23–24. In

California, successful removal to federal court now

determines whether § 2 of the FAA governs—or

whether the FAA is a dead letter. This disparity is

untenable.

The petition thus presents the Court with an

ideal vehicle for stopping the California courts from

using state public policy to discriminate against

arbitration. It also gives the Court a chance to remind

5

the lower courts not to use a rigged version of a

general contract defense as a tool for striking down

arbitration clauses. The Court should grant review.

ARGUMENT

I.

REVIEW IS NEEDED BECAUSE MCGILL IS

BIASED AGAINST ARBITRATION IN PRINCIPLE.

The McGill rule stands on California Civil Code

§ 3513, which says that although “any one may waive

the advantage of a law intended solely for his benefit,”

a “law established for a public reason cannot be

contravened by private agreement.” Cal. Civ. Code

§ 3513.

Section 3513 is a California “maxim of

jurisprudence.” These maxims lie “almost buried and

forgotten” among California’s nineteenth-century

Field Codes. Jeffrey S. Klein, A Few Clauses to Help

Lawyers Along, L.A. Times (Sept. 14, 1989),

https://perma.cc/BJ5F-TVLU. They include such

cosmic riddles as “That is certain which can be made

certain,” and “Things happen according to the

ordinary course of nature and the ordinary habits of

life.” Cal. Civ. Code §§ 3538, 3546.

As these examples show, these maxims “can

mean everything and nothing.” Klein, supra. Some of

them, in fact, seem to contradict both § 3513 and the

notion that arbitration clauses should be subjected to

discrimination. “He who consents to an act,” for

example, “is not wronged by it.” Cal. Civ. Code § 3515.

“Private transactions,” after all, “are fair and

regular.” Id. § 3545.

6

If it seems like § 3513 makes no sense as a

contract defense, that’s because it isn’t one.

California’s maxims of jurisprudence are merely

“interpretive canon[s] for construing statutes.”

McGovern v. U.S. Bank N.A., 362 F. Supp. 3d 850, 860

(S.D. Cal. 2019) (quoting Nat’l Shooting Sports

Found., Inc. v. State, 420 P.3d 870, 873 (Cal. 2018)).

The McGill rule therefore is not a contract defense

that triggers the FAA’s saving clause. See 9 U.S.C.

§ 2. Rather, it is a free-floating public policy.

A state court may not use state public policy to

undermine the FAA. If Congress says an arbitration

agreement free from any contract defense must be

enforced, a state court may not refuse to enforce the

agreement because it thinks arbitration isn’t part of

the “ordinary course of nature and the ordinary habits

of life.” Cal. Civ. Code § 3546. The Supremacy Clause

won’t allow it. See U.S. Const. art. VI, cl. 2. Neither

should this Court.

II.

REVIEW IS NEEDED BECAUSE MCGILL IS

BIASED AGAINST ARBITRATION IN PRACTICE.

Even if it stood on a real contract defense, the

McGill rule would still be preempted. The rule’s only

purpose is to serve as a tool for striking down

arbitration clauses.

As Concepcion confirms, the FAA bars a court

from applying a “generally applicable” state doctrine

“in a fashion that disfavors arbitration.” 563 U.S. at

341. Such a doctrine is not automatically valid simply

because it also governs contracts outside the

arbitration context. Id. at 342. Even a doctrine that

stands on “the general principle of unconscionability,”

7

for example, still violates the FAA if “in practice” it

“would have a disproportionate impact on arbitration

agreements.” Id.

The California Supreme Court has consistently

resisted this holding. All that matters in that court’s

view is that a rule merely respects arbitration’s

“fundamental attributes” and “applies equally to

arbitration and nonarbitration agreements.” SonicCalabasas A, Inc. v. Moreno, 311 P.3d 184, 196 (Cal.

2013). The California high court has even gone so far

as to stand the “disproportionate impact” principle on

its head. “A facially neutral state-law rule,” the court

has decided, “is not preempted simply because its

evenhanded

application

‘would

have

a

disproportionate impact on arbitration agreements.’”

Id. at 201 (emphasis added) (quoting Concepcion, 563

U.S. at 342).

McGill relies heavily on this perversion of

Concepcion. In declaring that the FAA does not

preempt § 3513’s no-waiver maxim, McGill insists

that the §3513 bar “is not a defense that applies only

to arbitration or that derives its meaning from the

fact that an agreement to arbitrate is at issue.” 393

P.3d at 94. Rather, “a provision in any contract—even

a contract that has no arbitration provision—that

purports to waive * * * the statutory right to seek

public injunctive relief * * * is invalid and

unenforceable under California law.” Id.

This directly contradicts Concepcion. Under this

Court’s holding, it is not enough that a state rule

apply “even [to] a contract that has no arbitration

provision.” Id. A state rule also may not “in practice”

have “a disproportionate impact on arbitration

8

agreements.” Concepcion, 563 U.S. at 342.

California’s McGill rule has such an impact—in

spades.

Indeed, the California courts increasingly use

§ 3513 as a cudgel for striking down arbitration

agreements. The California Reports are now rife with

cases that use § 3513 (or rely on a case that in turn

uses it) to disfavor arbitration. See, e.g., McGill, 393

P.3d at 94; Sonic-Calabasas A, 311 P.3d at 192–93;

Armendariz v. Found. Health Psychcare Servs., 6 P.3d

669, 758 (Cal. 2000) (“[A]n arbitration agreement

cannot be made to serve as a vehicle for the waiver of

[state] statutory rights created by the FEHA.”);

Serafin v. Balco Properties Ltd., LLC, 235 Cal. App.

4th 165, 183 (2015) (“[A]n arbitration agreement

cannot be made to serve as a vehicle for the waiver of

[state] statutory rights.”); Bickel v. Sunrise Assisted

Living, 206 Cal. App. 4th 1, 8–9, 12 (2012) (“Where a

provision in an arbitration agreement seeks to waive

such [state statutory] rights, as was the case here, the

provision is contrary to public policy and may be

severed.”); Samaniego v. Empire Today LLC, 205 Cal.

App. 4th 1138, 1147 (2012) (“Where, as in this case,

arbitration provisions undermine [state] statutory

protections,

courts

have

readily

found

unconscionability. * * * [A]n arbitration agreement

cannot be made to serve as a vehicle for the waiver of

[state] statutory rights.”); Ajamian v. CantorCO2e,

L.P., 203 Cal. App. 4th 771, 799 (2012) (“[T]he

arbitration provision * * * forces [the plaintiff] to

waive her unwaivable [state] statutory rights and

remedies.”).

In any case, § 3513 is just a flimsy pretext on

which the McGill rule stands. The McGill rule itself

9

was created specifically for, aims solely at, and has

not been used on anything other than—arbitration

agreements. It’s clear what’s really going on.

California’s courts have dusted off an ancient, rarely

used maxim and repurposed it as a device for striking

down arbitration agreements. The McGill rule exists

precisely because it has “a disproportionate impact on

arbitration agreements.” Concepcion, 563 U.S. at 342.

Whatever else it might be in theory, in practice the

McGill rule is just another of the “great variety” of

“devices and formulas” that judges “hostil[e] towards

arbitration” use to “declar[e] arbitration against

public policy.” Id.

III.

REVIEW IS NEEDED BECAUSE CALIFORNIA

COURTS PERSIST IN REFUSING TO ENFORCE

THE FAA.

Bottomed on the McGill rule, the Court of

Appeal’s holding here flouts this Court’s FAA

preemption holdings. Unsurprisingly, the Supreme

Court of California denied review—as it has done in

every other case using McGill to nullify an arbitration

agreement. See Pet. 27–29. If this Court wants state

courts to faithfully apply its decisions, it should grant

the petition and remind California courts, yet again,

that they are not the final arbiters of federal law.

The number of this Court’s decisions that

California courts have not fully embraced is legion.

Yet arbitration has been particularly despised by

California jurists. Consider a pre-Concepcion study. It

found that in a three-year period, three California

appellate districts addressed unconscionability in 119

cases. Paul Thomas, Note, Conscionable Judging: A

Case Study of California Courts’ Grapple with

10

Challenges to Mandatory Arbitration Agreements, 62

Hastings L.J. 1065, 1083 (2011). The courts found

unconscionability in 50.6% of the arbitration cases,

but in only 16.7% of the non-arbitration cases. Id.

And, remarkably, 89 of the 119 cases in the sample

(75%) involved an arbitration agreement. Id.

Or consider Westlaw’s Notes of Decisions for

California Civil Code § 1670.5, the State’s codification

of its unconscionability rule. The Notes read like little

more than a never-ending chronicle of challenges to

arbitration clauses. In one section, for example, which

addresses

“substantive

unconscionability”

for

“employment agreements,” nearly all the cases

discussed (33 of 36) concerned an arbitration

agreement. Nor is that all. The Notes contain at least

17 free-standing sections devoted exclusively to

arbitration agreements. A review of these Notes

confirms that California’s courts continue to strike

down arbitration clauses at an unrelenting pace.

The FAA’s “broad principle of enforc[ing]”

arbitration provisions “withdraws the power of the

states to require a judicial forum for the resolution of

claims which the contracting parties agreed to resolve

by arbitration.” Doctor’s Assocs., Inc. v. Casarotto, 517

U.S. 681, 684 (1996) (cleaned up). Yet California

consistently ignores the FAA’s simple command. It

continues to build barriers to companies’ enforcing

arbitration agreements.

In DIRECTV, Inc. v. Imburgia, 577 U.S. 47

(2015), the Court reversed a California Court of

Appeal decision holding a class-arbitration waiver

unenforceable under state law. The Court held that

the FAA preempted California’s class-arbitration bar.

11

Id. at 58 (citation omitted). As the Court explained,

the California Court of Appeal’s “view that state law

retains independent force even after it has been

authoritatively invalidated by this Court” is wrong.

Id. at 57. Rather, state courts must follow this Court’s

commands.

The Court of Appeal’s decision in DIRECTV

followed the Supreme Court of California’s decision in

Discover Bank v. Superior Ct. of L.A. Cnty., 113 P.3d

1100 (Cal. 2005). There, the court held that the FAA

did not preempt a California law barring classarbitration waivers. Id. at 1110–17. The decision

stood for six years until this Court abrogated it in

Concepcion.

As the Court explained when abrogating

Discover Bank, the supposedly general nature of a

state law cannot save one “that stand[s] as an obstacle

to the accomplishment of the FAA’s objectives.”

Concepcion, 563 U.S. at 343 (citations omitted).

Otherwise, that loophole would destroy the FAA. See

id. (citing Am. Tel. & Tel. Co. v. Cent. Off. Tel., Inc.,

524 U.S. 214, 227–28 (1998)). Yet that is what the

Court of Appeal’s application of the McGill rule does

here. It destroys the FAA’s goal of making arbitration

provisions enforceable—even in States that wish not

to enforce them.

In Viking River Cruises, this Court abrogated

yet another California rule circumventing the FAA.

596 U.S. at 639. There, the Court of Appeal’s holding

was dictated by the California Supreme Court’s

decision in Iskanian v. CLS Transportation Los

Angeles, 327 P.3d 129 (Cal. 2014). Like McGill,

Iskanian stood on California Civil Code § 3513’s

12

maxim that “a law established for a public reason

cannot be contravened by a private agreement.” Id. at

148 (citing Cal. Civ. Code § 3513). Relying on this

maxim, Iskanian declared it “contrary to public policy

for an [arbitration] agreement to * * * requir[e]

employees to waive the right to bring a [Private

Attorneys General Act representative] action.” Id. at

149.

This Court reversed, holding that the FAA

preempts Iskanian “insofar as it precludes division of

PAGA actions into individual and non-individual

claims through an agreement to arbitrate.” Viking

River Cruises, 596 U.S. at 662. After elaborating on

the FAA’s “equal-treatment principle,” the Court

reiterated that “even rules that are generally

applicable as a formal matter are not immune to

preemption by the FAA.” Id. at 650. As applied,

Iskanian improperly “coerce[d] parties into forgoing

their right to arbitrate by conditioning that right” on

a procedure that “makes arbitration artificially

unattractive.” Id. at 656. In other words, California

tried to apply a general rule of interpretation while

ignoring the FAA’s preemption provision. This it

could not do. Unfortunately, Iskanian wreaked havoc

on arbitration in California courts for eight years

until this Court intervened.

If anything, Viking River Cruises should have

signaled to California courts that the FAA forecloses

the McGill rule too. After all, Viking River Cruises

confirms that California may not “transform

traditional individualized arbitration * * * into the

litigation it was meant to displace” under the guise of

applying “generally applicable principles of state

13

law.” 596 U.S. at 651 (quotations and alterations

omitted).

The FAA thus bars state anti-waiver rules “at

odds with arbitration’s basic form.” Id. at 656. McGill

is plainly such a rule, because it shoehorns parties

into either (1) “judicial proceedings” because virtually

every consumer claim seeking an injunction triggers

McGill or (2) “an arbitral proceeding that exceeds the

scope jointly intended by the parties” because parties

who agreed to only party-specific relief find

themselves in arbitration “not to resolve a private

dispute but to remedy a public wrong,” in the

California Supreme Court’s own words. Broughton v.

Cigna Healthplans of Cal., 988 P.2d 67, 76 (Cal.

1999). Under the FAA, then, California can’t insist on

tying together individual and universal (at least

within California) injunctions to nullify agreements

for individual arbitration.

The economic stakes are high. One overlooked

but vital aspect of an arbitration agreement is the

benefits it provides the many contracting parties who

never have a dispute. The use of arbitration lowers a

company’s dispute-resolution costs, and these costsavings are generally passed on in the form of higher

wages for employees and lower prices for consumers.

Put differently, a company pays for its arbitration

rights. That is, Comcast “paid [Ramsey] to do a

number of things; one of the things it paid [him] to do

was agree to non-judicial dispute resolution.” Oblix,

Inc. v. Winiecki, 374 F.3d 488, 491 (7th Cir. 2004)

(Easterbrook, J.).

Businesses “crave certainty as much as almost

anything: certainty is what allows them to make long-

14

term plans and long-term investments.” Alan

Greenspan & Adrian Wooldridge, Capitalism in

America: A History 258 (2018). Yet so long as the

McGill rule remains in place, this Court’s FAA case

law doesn’t protect California litigants. They can

never be sure whether courts will enforce their

arbitration agreements as written. Rather, they must

constantly worry that they gave up something in

return for an arbitration clause only to have that

arbitration clause ignored by a California court. This

Court should intervene and grant the petition to

vindicate the federal right to arbitrate.

CONCLUSION

The Court should grant the petition.

Respectfully submitted,

October 28, 2024

CORY L. ANDREWS

Counsel of Record

WASHINGTON LEGAL

FOUNDATION

2009 Massachusetts Ave., NW

Washington, DC 20036

(202) 588-0302

candrews@wlf.org