In putative privacy class action Hodges v. Comcast Cable Communications, LLC, involving  Comcast’s privacy and data-collection practices, Comcast moved to compel arbitration based on its subscriber agreement.  The district court denied the motion based on California’s McGill rule, which may invalidate arbitration agreements that purport to waive the right to seek public injunctive relief in any forum.

The Ninth Circuit recently reversed, limiting plaintiffs’ ability to invoke the McGill rule by narrowly defining the types of claims that seek public injunctive relief.  The majority defined public injunctive relief as limited 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.”  Since the Hodges plaintiff sought injunctive relief that would benefit only cable subscribers, the majority held that he did not seek public injunctive relief, so the case should have been sent to arbitration.

Notably, the majority in Hodges recognized that its definition of public injunctive relief is narrower than that adopted by California state appellate courts in Mejia v. DACM Inc., 54 Cal. App. 5th 691 (2020), and Maldonado v. Fast Auto Loans, Inc., 60 Cal. App. 5th 710 (2021).  In light of Hodges, companies seeking to enforce arbitration agreements should consider strategies to litigate McGill issues in federal court.

 

 

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Photo of Kanu Song Kanu Song

Specializing in complex commercial disputes, Kanu Song has significant experience with intellectual property litigation, class actions, and claims brought under consumer protection and competition laws, including California’s Unfair Competition Law (B. & P.C. § 17200).

She works with clients in the technology, entertainment…

Specializing in complex commercial disputes, Kanu Song has significant experience with intellectual property litigation, class actions, and claims brought under consumer protection and competition laws, including California’s Unfair Competition Law (B. & P.C. § 17200).

She works with clients in the technology, entertainment, consumer brands, food, drug, and cosmetic industries through all stages of litigation, with a strong track record of success on early dispositive motions

Photo of Kathryn Cahoy Kathryn Cahoy

Kate Cahoy specializes in defending clients in complex, high-stakes disputes including class action and antitrust cases. Her practice includes privacy, antitrust, and consumer protection matters in the technology, entertainment, financial services, and food, drug, and cosmetic industries, among others, and she has significant

Kate Cahoy specializes in defending clients in complex, high-stakes disputes including class action and antitrust cases. Her practice includes privacy, antitrust, and consumer protection matters in the technology, entertainment, financial services, and food, drug, and cosmetic industries, among others, and she has significant experience litigating cases brought under California’s Section 17200 and other consumer protection, competition, and privacy laws.

Photo of Andrew Soukup Andrew Soukup

Andrew Soukup has a wide-ranging complex litigation practice representing highly regulated businesses in class actions and other high-stakes disputes. He has built a successful record of defending clients from consumer protection claims asserted in class-action lawsuits and other multistate proceedings, many of which…

Andrew Soukup has a wide-ranging complex litigation practice representing highly regulated businesses in class actions and other high-stakes disputes. He has built a successful record of defending clients from consumer protection claims asserted in class-action lawsuits and other multistate proceedings, many of which were defeated through dispositive pre-trial motions.
Andrew is co-chair of the firm’s Class Action Litigation practice group.

Andrew has helped his clients achieve successful outcomes at all stages of litigation, including through trial and appeal. He has helped his clients prevail in litigation against putative class representatives, government agencies, and commercial entities.