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