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Tillage v. Comcast Corp.

United States Court of Appeals for the Ninth Circuit

February 12, 2019, Argued and Submitted, San Francisco, California; June 28, 2019, Filed

No. 18-15288

Opinion

 [*569]  MEMORANDUM1

Comcast Corporation ("Comcast") appeals the district court's order denying Comcast's motion to compel arbitration. We have jurisdiction under 9 U.S.C. § 16(a)(1) and we affirm.

For the reasons set forth in our concurrently filed opinion in Blair v. Rent-A-Center, Inc., No. 17-17221, we hold that California's McGill rule is not preempted by the Federal Arbitration Act [**2] .

In light of this holding, we hold that the arbitration agreement between Comcast and plaintiffs Charles Tillage and Joseph Loomis is null and void in its entirety. Section 13(h) of the parties' subscriber agreement purports to waive plaintiffs' rights to pursue public injunctive relief in any forum and so is unenforceable under California law. See McGill v. Citibank, 2 Cal. 5th 945, 216 Cal. Rptr. 3d 627, 393 P.3d 85, 94 (Cal. 2017). Section 13(h) also provides that "THIS WAIVER OF CLASS ACTIONS AND COLLECTIVE RELIEF IS AN ESSENTIAL PART OF THIS ARBITRATION PROVISION AND CANNOT BE SEVERED FROM IT." This non-severability clause results in the invalidation of the entire arbitration agreement.

Comcast argues that the opt-out clause of their subscriber agreement removes it from McGill's coverage because the subscriber agreement waives a person's right to pursue a public injunction only if he or she agrees to arbitrate. That argument fails, as McGill applies to any consensual waiver of public injunctive relief, irrespective of how the parties choose to waive that relief. 393 P.3d at 93-94 (quoting Cal. Civ. Code § 3513).

AFFIRMED.

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772 Fed. Appx. 569 *; 2019 U.S. App. LEXIS 19496 **; 2019 WL 2713292

CHARLES E. TILLAGE; JOSEPH M. LOOMIS, Plaintiffs-Appellees, v. COMCAST CORPORATION; COMCAST CABLE COMMUNICATIONS, LLC, Defendants-Appellants.

Notice: PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.

Subsequent History: Later proceeding at Tillage v. Comcast Corp., 2019 U.S. App. LEXIS 27156 (9th Cir. Cal., Sept. 9, 2019)

Rehearing denied by, Rehearing denied by, En banc Tillage v. Comcast Corp., 2020 U.S. App. LEXIS 1652 (9th Cir. Cal., Jan. 17, 2020)

Petition for certiorari filed at, 02/27/2020

Prior History:  [**1] Appeal from the United States District Court for the Northern District of California. D.C. No. 3:17-cv-06477-VC. Vince Chhabria, District Judge, Presiding.

Adkins v. Comcast Corp., 2018 U.S. Dist. LEXIS 26066 (N.D. Cal., Feb. 15, 2018)

Disposition: AFFIRMED.

CORE TERMS

subscription agreement, ARBITRATION, waive, arbitration agreement, injunctive relief, right to pursue