Brandon Hodges v. Comcast Cable Communications ( 2021 )

FOR PUBLICATION
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, ORDER AND
Defendant-Appellant. AMENDED
OPINION
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
Amended December 23, 2021
Before: Marsha S. Berzon, Daniel P. Collins, and
Lawrence VanDyke, Circuit Judges.
Order;
Opinion by Judge Collins;
Dissent by Judge Berzon
2 HODGES V. COMCAST
SUMMARY *
Arbitration
The panel filed (1) an order denying a petition for panel
rehearing, denying on behalf of the court a petition for
rehearing en banc, and replacing a dissenting opinion with
an amended dissent; and (2) an amended dissent.
In the majority opinion, which remained unchanged, 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 Hodges’
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-
*
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
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
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.
4 HODGES V. COMCAST
COUNSEL
Mark A. Perry (argued) and Joshua M. Wesneski, Gibson
Dunn & Crutcher LLP, Washington, D.C.; Michael W.
McTigue Jr., Meredith C. Slawe, and Seamus C. Duffy, 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 Bates and David Slade, Carney, Bates & Pulliam
PLLC, Little Rock, Arkansas; for Plaintiff-Appellee.
Gary B. Friedman, Los Angeles, California; Professor
Myriam E. Gilles, Benjamin N. Cardozo School of Law,
New York, New York; for Amici Curiae Civil Procedure and
Arbitration Law Professors.
Roger N. Heller and Ian R. Bensberg, Lieff Cabraser
Heimann & Bernstein LLP, San Francisco, California, for
Amici Curiae Consumer Organizations.
HODGES V. COMCAST 5
ORDER
The dissenting opinion of Judge Berzon, previously
published at 12 F.4th 1108, 1122–26, is replaced by the
accompanying amended dissent. The majority opinion
previously published at 12 F.4th 1108 remains unchanged.
Judges Collins and VanDyke have voted to deny the
petition for panel rehearing and the petition for rehearing en
banc (Dkt. No. 58). Judge Berzon has voted to grant the
petition for panel rehearing and the petition for rehearing en
banc. The full court has been advised of the petition for
rehearing en banc, and no judge has requested a vote on
whether to rehear the matter en banc. See FED. R. APP. P.
35. The petition for panel rehearing and the petition for
rehearing en banc, filed October 22, 2021, are DENIED. No
further petitions for rehearing or rehearing en banc will be
entertained.
OPINION
COLLINS, Circuit Judge:
Comcast Cable Communications, LLC (“Comcast”)
appeals the district court’s denial of its motion to compel
arbitration of the claims asserted against it by former cable
subscriber Brandon Hodges. Hodges brought this putative
class action challenging certain of Comcast’s privacy and
data-collection practices and seeking a variety of monetary
and equitable remedies. The district court held that, because
Hodges’ complaint sought “public injunctive relief” as one
of its requested remedies, the complaint implicated the so-
called “McGill rule,” under which a contractual provision
that waives the right to seek “public injunctive relief” in all
6 HODGES V. COMCAST
forums is unenforceable. McGill v. Citibank, N.A., 393 P.3d
85, 87 (Cal. 2007). The parties did not dispute that, if the
relief Hodges seeks is classified as public injunctive relief,
the non-severable arbitration provisions of Hodges’
subscriber agreements with Comcast did seek to waive that
public injunctive relief in any forum. Accordingly, the
district court held that those provisions were unenforceable
under McGill. We conclude that the district court
misconstrued what counts as “public injunctive relief” for
purposes of the McGill rule and that it therefore erred in
concluding that the complaint here sought such relief.
Because Hodges’ complaint did not seek such relief, the
McGill rule is not implicated, and the arbitration agreement
should have been enforced. We therefore reverse the district
court’s denial of Comcast’s motion to compel.
I
Between October 2015 and January 2018, Hodges
subscribed to Comcast’s cable television services at his
home in Oakland, California. In February 2018, Hodges
filed a complaint in California state court on behalf of a
putative class of California residential Comcast subscribers,
alleging that Comcast violated class members’ statutory
privacy rights in collecting “data about subscribers’ cable
television viewing activity” as well as “personally
identifiable demographic data about its subscribers.”
Specifically, Hodges alleged that Comcast violated the
Cable Communications Policy Act of 1984 (“Cable Act”),
by (1) failing to clearly inform subscribers of how long
Comcast would keep such information; (2) failing to provide
subscribers with access to this information upon request; and
(3) failing to obtain subscribers’ consent before gathering
information about viewing activity. See 47 U.S.C.
§ 551(a)(1)(C), (b), (d). Hodges also alleged that Comcast
HODGES V. COMCAST 7
violated the California Invasion of Privacy Act (“CIPA”), by
(1) failing to obtain subscribers’ consent before using its
cable boxes to collect viewing activity; and (2) failing to
disclose, within 30 days of a subscriber request,
“individually identifiable subscriber information” Comcast
had collected. CAL. PEN. CODE § 637.5(a)(1), (d). In
addition, Hodges asserted that the same five violations of the
Cable Act and CIPA constituted “unlawful” business
practices, thereby giving rise to a derivative cause of action
under California’s unfair competition law (“UCL”), CAL.
BUS. & PROF. CODE § 17200 et seq. On behalf of himself
and the putative class, Hodges sought liquated, statutory, and
punitive damages; seven specified forms of “statewide
public injunctive relief”; and attorney’s fees.
Comcast removed the case to the U.S. District Court for
the Northern District of California based on federal question
jurisdiction, see 28 U.S.C. § 1331, and diversity jurisdiction
under the Class Action Fairness Act, id. § 1332(d). Noting
that each version of Hodges’ various “Subscriber
Agreements” with Comcast contained an arbitration
provision, Comcast then moved to compel arbitration.
Hodges opposed the motion, arguing that the arbitration
provision was unenforceable under McGill because its non-
severable “Waiver of Class Actions and Collective Relief”
impermissibly deprived Hodges of the right to pursue public
injunctive relief in any forum. 1 In reply, Comcast argued
1
For example, the final agreement Hodges received in January
2018, when he terminated his cable service but continued internet service
with Comcast, included the following language (which is reproduced
here without its use of all capitalization):
Waiver of Class Actions and Collective Relief.
There shall be no right or authority for any claims to
8 HODGES V. COMCAST
that McGill was inapplicable because Hodges was not
seeking public injunctive relief and that, in any event, the
McGill rule is preempted by the Federal Arbitration Act
(“FAA”).
Because the question of whether McGill was preempted
by the FAA had already been raised in several cases before
this court, the district court stayed the case pending our
resolution of that issue. After we held in Blair v. Rent-A-
Center, Inc., 928 F.3d 819, 822 (9th Cir. 2019), that the FAA
did not preempt the McGill rule, the district court denied
Comcast’s motion to compel arbitration. Comcast filed an
interlocutory appeal challenging the district court’s ruling,
and we have jurisdiction pursuant to 9 U.S.C. § 16(a)(1)(B).
be arbitrated or litigated on a class action, joint or
consolidated basis or on bases involving claims
brought in a purported representative capacity on
behalf of the general public (such as a private attorney
general), other subscribers, or other persons. The
arbitrator may award 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. The arbitrator may not award
relief for or against anyone who is not a party. The
arbitrator may not consolidate more than one person’s
claims, and may not otherwise preside over any form
of a representative or class proceeding. This waiver of
class actions and collective relief is an essential part of
this arbitration provision and cannot be severed from
it.
HODGES V. COMCAST 9
II
Section 2 of the FAA provides that
[a] written provision in . . . a contract . . . to
settle by arbitration a controversy thereafter
arising out of such contract . . . 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 Supreme Court has “described this
provision as reflecting both a liberal federal policy favoring
arbitration and the fundamental principle that arbitration is a
matter of contract.” AT&T Mobility LLC v. Concepcion,
563 U.S. 333, 339 (2011) (citations omitted). “In line with
these principles, courts must place arbitration agreements on
an equal footing with other contracts and enforce them
according to their terms.” Id. (simplified). The final clause
of § 2—the “saving clause”—confirms that arbitration
agreements, like any other contract, can be invalidated on
generally applicable grounds “for the revocation of any
contract.” 9 U.S.C. § 2. But arbitration agreements may not
be invalidated “by 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.
This case involves one such ground for contractual
invalidation under California law, viz., the so-called “McGill
rule.” Under that rule, insofar as a contractual provision
“purports to waive [a party’s] right to request in any forum
. . . public injunctive relief, it is invalid and unenforceable
under California law.” McGill, 393 P.3d at 94. We held in
Blair that “the FAA does not preempt the McGill rule,”
928 F.3d at 830–31, and we therefore reject Comcast’s
contrary arguments here. The only remaining question
10 HODGES V. COMCAST
before us, then, is whether Comcast’s enforcement of the
Subscriber Agreement in this case violates the McGill rule.
We conclude that, because Hodges’ complaint does not seek
public injunctive relief, the McGill rule is not implicated and
that rule therefore does not bar enforcement of the arbitration
provision.
A
As an initial matter, Hodges argues that, in addressing
whether the McGill rule is implicated in this case, it is
irrelevant whether his complaint “actually includes a claim”
for public injunctive relief. All that matters, in his view, is
whether the Subscriber Agreement’s language theoretically
purports to waive public injunctive relief in any case. This
argument is foreclosed by McGill itself. In addressing
whether the contract in that case was unenforceable, the
California Supreme Court stated that, in “answering this
question, we first conclude that McGill’s complaint does, in
fact, appear to seek . . . public injunctive relief.” 393 P.3d
at 90 (emphasis added). And in Mejia v. DACM Inc.,
268 Cal. Rptr. 3d 642 (Cal. Ct. App. 2020), the California
Court of Appeal likewise began its analysis of the
applicability of the McGill rule by addressing whether the
operative complaint actually sought public injunctive relief
in the first place. See id. at 650–53 (holding that the
complaint did seek such relief and that McGill invalidated
the arbitration provision).
The same conclusion follows from our decision in
Kilgore v. KeyBank, N.A., 718 F.3d 1052 (9th Cir. 2013) (en
banc). In Kilgore, we held that it was unnecessary to reach
the particular FAA preemption question presented there
precisely because the plaintiffs’ requested injunctions in that
case did not qualify as public injunctive relief. 718 F.3d
at 1060–61. Kilgore involved the distinct “Broughton-Cruz
HODGES V. COMCAST 11
rule,” id. at 1060, under which “[a]greements to arbitrate
claims for public injunctive relief” under certain California
consumer statutes “are not enforceable in California,”
McGill, 393 P.3d at 90. 2 Under Hodges’ flawed view of
California law, the mere presence of a requirement to
arbitrate public injunctive relief in a contract should have
been enough to invalidate the arbitration provision in
Kilgore under the Broughton-Cruz rule—meaning that the
ability to compel arbitration in Kilgore could not depend
upon whether public injunctive relief was actually being
requested in that case. But we held exactly the opposite,
concluding that the particular injunctions being sought by
the plaintiffs in Kilgore did not involve public injunctive
relief; that the Broughton-Cruz rule therefore was not
implicated; that we therefore did not need to decide whether
that rule was preempted by the FAA; and that arbitration was
required. Kilgore, 718 F.3d at 1060–61. 3 The California
Court of Appeal followed the same approach in another case
addressing the applicability of the Broughton-Cruz rule. See
Clifford v. Quest Software Inc., 251 Cal. Rptr. 3d 269, 276–
78 (Cal. Ct. App. 2019) (concluding that the relevant cause
of action did not seek public injunctive relief and that
arbitration therefore could be compelled without addressing
whether the Broughton-Cruz rule was preempted).
2
The rule’s name derives from the pair of cases that established it,
namely, Broughton v. Cigna Healthplans of California, 988 P.2d 67, 76
(Cal. 1999), and Cruz v. PacifiCare Health Systems, Inc., 66 P.3d 1157,
1164–65 (Cal. 2003).
3
We later held that, given the fact that the Broughton-Cruz rule
applied only to arbitration agreements, it was not a generally applicable
ground for invalidating a contract and was therefore preempted by the
FAA. See Blair, 928 F.3d at 827; Ferguson v. Corinthian Colleges, Inc.,
733 F.3d 928, 934 (9th Cir. 2013).
12 HODGES V. COMCAST
The applicable precedent thus forecloses Hodges’
argument that courts should stretch to invalidate contracts
based on hypothetical issues that are not actually presented
in the parties’ dispute. We therefore turn to whether
Hodges’ complaint requests public injunctive relief within
the meaning of the McGill rule.
B
We begin by setting forth the standards for what
constitutes non-waivable public injunctive relief under
California law. In addressing that question, we “‘are bound
by decisions of the state’s highest court,’” Alliance for Prop.
Rights & Fiscal Responsibility v. City of Idaho Falls,
742 F.3d 1100, 1103 (9th Cir. 2013) (citation omitted), and
in deciding any unresolved or unclear questions of state law,
we are guided by the principles that the state high court has
articulated, id. In construing the substantive scope of
McGill’s contract-invalidation rule, we also cannot lose sight
of the critical limitations on that rule that saved it from
preemption as a matter of federal law in Blair. We review
all questions of law de novo. United States v. Robertson,
980 F.3d 672, 675 (9th Cir. 2020).
1
McGill derived its rule against waiver of public
injunctive relief from California Civil Code § 3513, which
provides: “Any 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.” See 393 P.3d at 93–94. Because the primary
consumer protection laws at issue in McGill—i.e., the UCL;
the Consumers Legal Remedies Act (“CLRA”), CAL. CIV.
CODE § 1750 et seq.; and California’s false advertising law,
CAL. BUS. & PROF. CODE § 17500 et seq.—all authorize
HODGES V. COMCAST 13
injunctive relief that is primarily “for the benefit of the
general public,” Broughton, 988 P.2d at 78 (making this
point as to the CLRA); see also Cruz, 66 P.3d at 1164–65
(same as to the UCL and the false advertising law), the
McGill court held that any waiver of the “right to request in
any forum such public injunctive relief . . . is invalid and
unenforceable under California law.” 393 P.3d at 94.
Consistent with California Civil Code § 3513’s
distinction between relief for the benefit of private
individuals and relief for the benefit of the general public as
a whole, McGill explained that California law
distinguished between private injunctive
relief—i.e., relief that primarily resolves a
private dispute between the parties and
rectifies individual wrongs and that benefits
the public, if at all, only incidentally—and
public injunctive relief—i.e., relief that by
and large benefits the general public and that
benefits the plaintiff, if at all, only
incidentally and/or as a member of the
general public.
393 P.3d at 89 (simplified). In further describing the sort of
“public injunctive relief” that is not subject to waiver under
California law, the California Supreme Court in McGill
emphasized three key features.
First, the Court stated that public injunctive relief “has
‘the primary purpose and effect of’ prohibiting unlawful acts
that threaten future injury to the general public.” McGill,
393 P.3d at 90 (emphasis added) (citation omitted). Thus, in
contrast to relief aimed at “redressing or preventing injury”
to a person or group of persons, id., forward-looking relief
that generally aims to prevent unlawful conduct in the future
14 HODGES V. COMCAST
is more likely to be characterized as reflecting statutory
rights that are “established for a public reason.” CAL. CIV.
CODE § 3513.
Second, the McGill court emphasized that a request for
public injunctive relief “does not constitute the pursuit of
representative claims or relief on behalf of others,” nor does
it involve “prosecut[ing] actions on behalf of the general
public.” 393 P.3d at 92–93 (simplified) (emphasis added).
The court made this observation in the course of explaining
why Proposition 64’s amendments to the UCL did not
eliminate the ability of a private plaintiff to seek public
injunctive relief under that statute. Proposition 64 stated that
UCL actions on behalf of the general public could be brought
by “only the California Attorney General and local public
officials,” Prop. 64, § 1(f), and it further prohibited any
private representative actions other than class actions, see
CAL. BUS. & PROF. CODE § 17203. The McGill court held
that these limitations did not affect the ability of a private
UCL plaintiff to request public injunctive relief, because
such relief did not require any such representative action,
either on behalf of a class or the general public. Rather, as
the court explained, the requirement that an “‘action be
brought as a class action’” has “never been imposed with
regard to requests to enjoin future wrongful business
practices that will injure the public.” 393 P.3d at 93 (citation
omitted).
Third, the court relatedly drew a sharp distinction with
respect to ascertainability between the beneficiaries of
private and public injunctive relief. The court explained
that, in contrast to private injunctive relief, which provides
benefits “to an individual plaintiff—or to a group of
individuals similarly situated to the plaintiff,” public
injunctive relief involves diffuse benefits to the “general
HODGES V. COMCAST 15
public” as a whole, and the general public “‘fails to meet’”
the class-action requirement of “‘an ascertainable class.’”
393 P.3d at 90, 93 (emphasis added) (citations omitted).
It follows that public injunctive relief within the meaning
of McGill 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 particular class of
persons, and that do so without the need to consider the
individual claims of any non-party. The paradigmatic
example would be the sort of injunctive relief sought in
McGill itself, where the plaintiff sought an injunction against
the use of false advertising to promote a credit protection
plan. 393 P.3d at 90–91. Such an injunction attempts to stop
future violations of law that are aimed at the general public,
and imposing or administering such an injunction does not
require effectively fashioning individualized relief for non-
parties. See also Cruz, 66 P.3d at 1159–60 (plaintiff sought
injunctive relief against PacifiCare’s false advertising in
“misrepresenting or failing to disclose internal policies that
lower the quality of services provided”); Broughton, 988
P.2d at 71 (plaintiff sought “an order enjoining [defendant
Cigna’s] deceptive methods, acts, and practices,” which
allegedly included “deceptively and misleadingly
advertis[ing] the quality of medical services which would be
provided under its health care plan”).
By contrast, when the injunctive relief being sought is
for the benefit of a discrete class of persons, or would require
consideration of the private rights and obligations of
individual non-parties, it has been held to be private
injunctive relief. For example, in Kilgore, the plaintiffs
alleged that the loans and contracts they had executed to
attend a since-failed helicopter-pilot school did not contain
certain disclosures required by Federal Trade Commission
16 HODGES V. COMCAST
regulations. 718 F.3d at 1056 & n.3. As a remedy, the
plaintiffs sought an injunction under the UCL to prevent the
defendant bank from reporting their student loan defaults to
credit agencies and from enforcing the student loan notes.
Id. Sitting en banc, we held that the plaintiffs were not
seeking public injunctive relief because the requested
injunction against enforcing these loans or reporting
associated loan defaults on credit reports “plainly would
benefit only the approximately 120 putative class members”
and not the general public. Id. at 1060–61. We further noted
that, in contrast to seeking forward-looking relief against
future unlawful acts aimed at the general public, the
requested injunction, “for all practical purposes, relates only
to past harms suffered by the members of the limited
putative class.” Id. at 1061 (emphasis added).
Likewise, in Clifford, the California Court of Appeal
held that even prospective injunctive relief was not “public”
when the primary beneficiaries were a defined group of
similarly situated persons, rather than the general public.
There, the plaintiff alleged a variety of wage and hour claims
arising from his employer’s alleged misclassification of him
as an “exempt employee.” 251 Cal. Rptr. 3d at 273.
Although the plaintiff sought an injunction to prevent his
employer from committing further similar violations of law
in the future, the court held that this did not constitute a
request for public injunctive relief. The only “potential
beneficiaries” of the requested forward-looking relief were
“Quest’s current employees, not the public at large.” Id.
at 277 (emphasis added). In reaching this conclusion, the
court emphasized McGill’s statement that, in order to qualify
as public injunctive relief, the requested injunction must go
beyond “‘redressing or preventing injury to an individual
plaintiff—or to a group of individuals similarly situated to
the plaintiff.’” Id. at 278 (quoting McGill, 393 P.3d at 90)
HODGES V. COMCAST 17
(emphasis added by Clifford); see also Torrecillas v. Fitness
Int’l, LLC, 266 Cal. Rptr. 3d 181, 191 (Cal. Ct. App. 2020)
(requested relief was not public injunctive relief because the
“beneficiary of an injunction would be Torrecillas and
possibly Fitness’s current employees, not the public at
large”).
We emphasized these same key features of public
injunctive relief when we held in Blair that the McGill rule
was not preempted by the FAA. Thus, in holding that public
injunctive relief did not entail a level of procedural formality
or complexity that would be inconsistent with arbitration’s
goal of streamlined proceedings, we expressly relied on
McGill’s holdings that (1) a “plaintiff requesting a public
injunction files the lawsuit ‘on his or her own behalf,’” and
not in any sort of representative capacity; (2) as a result,
“claims for public injunctive relief need not comply with
state-law class procedures”; and (3) the beneficiaries of
public injunctive relief are “the general public” as a whole
and not “specific absent parties.” Blair, 928 F.3d at 828–29.
In light of these crucial features of the McGill rule, we held
that a request for public injunctive relief “does not interfere
with the bilateral nature of a typical consumer arbitration.”
Id. at 829; see also Stolt-Nielsen S.A. v. AnimalFeeds Int’l
Corp., 559 U.S. 662, 685 (2010) (“In bilateral arbitration,
parties forego the procedural rigor . . . in order to realize the
benefits of private dispute resolution: lower costs, greater
efficiency and speed, and the ability to choose expert
adjudicators to resolve specialized disputes.”). Moreover, in
explaining why the relief sought in Blair included public
injunctive relief, we noted that it sought to stop Rent-A-
Center from using an unlawful pricing structure, 928 F.3d
at 822–23, thereby enjoining “future violations” of
18 HODGES V. COMCAST
California law in a manner that diffusely benefitted the
general public as a whole, id. at 831 n.3. 4
Given the loadbearing weight we placed on these aspects
of McGill in Blair, we think it is clear that any broader
conception of public injunctive relief, beyond what we have
set forth above, would have required a different conclusion
as to the preemption issue. If California’s McGill rule had
sought to preserve, as non-waivable, the right to formally
represent the claims of others, to seek retrospective relief for
a particular class of persons, or to request relief that requires
consideration of the individualized claims of non-parties,
then such a rule would plainly “interfere with the informal,
bilateral nature of traditional consumer arbitration.” Blair,
928 F.3d at 830; see also Epic Sys. Corp. v. Lewis, 138 S. Ct.
1612, 1623 (2018) (state-law rule that a contract is
unenforceable “just because it requires bilateral arbitration”
is preempted because it “impermissibly disfavors
arbitration” (emphasis omitted)).
2
In arguing for a broader reading of McGill, Hodges relies
on the recent decision of Division Three of the Fourth
4
Notably, in reaching that conclusion in Blair, we did not rely on
the other forms of injunctive relief that the plaintiff requested in that
case, namely, an order requiring Rent-A-Center to perform a retroactive
“accounting of monies obtained from California consumers” and to
provide “individualized notice to those consumers of their statutory
rights.” 928 F.3d at 823. In contrast to the public injunctive relief
described in McGill, these other forms of requested relief in Blair were
retrospective, aimed at a specific class of persons (i.e., those who already
had Rent-A-Center contracts), or would require individualized
consideration of the private rights and obligations of particular non-
parties.
HODGES V. COMCAST 19
District Court of Appeal in Mejia, 268 Cal. Rptr. 3d 642, in
which the court substantially broadened the McGill rule by
effectively defining as “public injunctive relief” any
forward-looking injunction that restrains any unlawful
conduct. Hodges also notes that Mejia’s analysis was
reaffirmed in another recent decision issued by the same
division of the same district in Maldonado v. Fast Auto
Loans, Inc., 275 Cal. Rptr. 3d 82 (Cal. Ct. App. 2021). For
two reasons, Hodges’ reliance on these cases is unavailing.
a
First, Mejia’s expanded version of the McGill rule rests
on such a patent misreading of California law that we do not
think it would be followed by the California Supreme Court.
See Ryman v. Sears, Roebuck & Co., 505 F.3d 993, 995 (9th
Cir. 2007) (panel is not required to follow intermediate state
appellate authority where there is convincing evidence that
the state supreme court would decide differently).
In particular, Mejia improperly disregards the key
features of public injunctive relief set forth by the state high
court in McGill. The alleged violation in Mejia involved the
defendant motorcycle seller’s failure to provide purchasers
“with a single document setting forth all the financing terms”
for the sale, see Mejia, 268 Cal. Rptr. 3d at 644, and the
plaintiff requested an injunction against any sale that did not
provide the requisite information in a single document, id.
at 645. By its terms, this relief would primarily benefit the
class of persons who actually purchased motorcycles, and
not the general public as a whole. See McGill, 393 P.3d at
90 (relief whose “primary purpose or effect” is “preventing
injury . . . to a group of individuals similarly situated to the
plaintiff . . . does not constitute public injunctive relief”).
Moreover, implementing such a decree could require the
examination of the paperwork of each individual sale to
20 HODGES V. COMCAST
determine whether the particular financing terms and other
requisite disclosures for that given sale were all included in
a single document. See id. at 93 (public injunctive relief
“does not constitute the pursuit of representative claims or
relief on behalf of others” (simplified)). As we have
explained, these are precisely the sorts of features that have
led to a finding of private injunctive relief. See supra at 15–
16.
The Mejia court nonetheless held that the relief requested
was public. 268 Cal. Rptr. 3d at 651. It did so in a brief
discussion that (1) declared, without analysis, that the
complaint’s requested injunctive relief concerning the sales
documents of future motorcycle purchasers “encompasse[d]
‘consumers’ generally” and (2) then announced that such
relief was therefore “‘injunctive relief that has the primary
purpose and effect of prohibiting unlawful acts that threaten
future injury to the general public.’” Id. (quoting McGill,
393 P.3d at 87). This truncated analysis effectively shears
off the limiting elements that were recited in McGill and that
we found critical to avoiding preemption in Blair. It instead
rests on the implicit premise that any forward-looking relief
to enjoin any illegal conduct is automatically public
injunctive relief that benefits the general public as a whole.
Id. This is a clear misreading of McGill, Broughton, and
Cruz. See supra at 12–15.
To the extent that Maldonado follows and applies
Mejia’s flawed analysis, it is equally mistaken. The
plaintiffs in Maldonado sought injunctive relief, inter alia,
that would prevent the defendant lender from charging
unconscionably excessive interest rates on loans and that
would require the lender to undertake “corrective
advertising” and to maintain the requisite California lender
licenses. 275 Cal. Rptr. 3d at 85–86. To be sure, some of
HODGES V. COMCAST 21
the relief requested in Maldonado—such as an injunction to
maintain the appropriate lender licenses and to undertake a
corrective advertising campaign—would appear to meet
McGill’s more circumscribed articulation of what counts as
non-waivable public injunctive relief. But Maldonado went
further and, relying on Mejia, held that an injunction aimed
at preventing “unconscionable” loan agreements with
excessive interest rates was public injunctive relief. Id.
at 90. For multiple reasons, that conclusion was plainly
incorrect.
Maldonado’s conclusion that an injunction against
unconscionable loan agreements “encompasses all
consumers and members of the public,” rather than just a
discrete class of persons who are similarly situated to the
plaintiffs, 275 Cal. Rptr. 3d at 90, is clearly wrong. By its
terms, that requested relief only benefits those who actually
sign lending agreements, and not the public more generally.
The court was likewise incorrect in suggesting that such an
injunction would not benefit the plaintiffs themselves
“because they have already been harmed and are already
aware of the misconduct.” Id. That might be true as to the
other forms of relief requested (such as corrective
advertising), but the plaintiffs and the class members would
plainly benefit from an injunction barring unconscionable
loan agreements, thereby underscoring that that relief is
private injunctive relief. The court was also wrong in
suggesting that, simply because an injunction against
unconscionable loan agreements with excessive interest
rates would also extend to future borrowers, the relief was
necessarily non-waivable public injunctive relief. Id. at 91.
As McGill makes clear, an incidental public benefit from
what is otherwise class-wide private injunctive relief is not
sufficient to establish that the requested injunction is actually
public relief. 393 P.3d at 89. Furthermore, determining
22 HODGES V. COMCAST
whether any particular future loan agreement was
unconscionable due to its interest rate would require an
individualized inquiry that considers whether, “under the
circumstances of the case, taking into account the bargaining
process and prevailing market conditions—a particular rate
was ‘overly harsh,’ ‘unduly oppressive,’ or ‘so one-sided as
to shock the conscience.’” De La Torre v. CashCall, Inc.,
422 P.3d 1004, 1015 (Cal. 2018) (citations omitted). For all
of these reasons, Maldonado plainly erred in holding that
any injunction aimed at prohibiting the defendant “‘from
continuing to engage in its allegedly illegal and deceptive
practices’” is public injunctive relief. 275 Cal. Rptr. 3d at
91 (citation omitted).
The dissent’s effort to defend Mejia and Maldonado is
both unpersuasive and inconsistent with other precedent.
While conceding that the requested injunctive relief in both
cases would primarily benefit only those who entered into
contracts with the defendants, the dissent argues that there is
nonetheless a benefit to the general public in the sense that
persons considering entering into such contracts would also
be protected. See Dissent at 32–33. But as McGill
explained, whether a requested injunction is public or private
depends upon who are the primary beneficiaries, and the
existence of an incidental benefit to the general public is not
enough to classify that relief as non-waivable public
injunctive relief. 393 P.3d at 89. Moreover, as the dissent
acknowledges, other courts—including this court—have
already recognized that injunctive relief aimed at regulating
the substantive terms of contractual arrangements is private
injunctive relief that primarily benefits those who enter into
such contracts. See Capriole v. Uber Techs., Inc., 7 F.4th
854, 2021 WL 3282092, at *13 (9th Cir. 2021) (relief
regulating Uber drivers’ relationship with Uber is primarily
directed at those who become Uber drivers and “only
HODGES V. COMCAST 23
‘benefit[s] the general public incidentally’” (quoting Blair,
928 F.3d at 824)); Clifford, 251 Cal. Rptr. 3d at 277
(requested injunctive relief concerning wages and hours
would primarily benefit defendant Quest Software’s
“current employees” rather than “the public at large”). The
dissent seeks to distinguish these cases on the ground that it
is more cumbersome to become an employee of Quest
Software or an Uber driver, see Dissent at 36, but that
distinction has nothing at all to do with what McGill says is
the relevant inquiry, namely, who are the primary
beneficiaries of the requested injunctive relief.
The dissent is also wrong in contending that our rejection
of Mejia and Maldonado is actually based on the “implicit
premise” that the only type of injunction that counts as
public injunctive relief is one directed against false
advertising. See Dissent at 34. That strawman argument is
belied by the substantive analysis set forth earlier, which
merely describes such an injunction as illustrative of public
injunctive relief, just as McGill itself did. See 393 P.3d
at 89–90 (noting that Broughton and Cruz, which involved
injunctions against false advertising, were paradigmatic
examples of public injunctive relief). And it is further belied
by our acknowledgment that, for example, the request for an
injunction that the defendant in Maldonado obtain and
maintain the required lender licenses qualifies as public
injunctive relief. See supra at 20–21.
b
Second, even if we are wrong in concluding that the
California Supreme Court would not follow Mejia’s and
Maldonado’s broader reading of the McGill rule, Hodges’
argument would still fail for the independent and alternative
reason that their expansion of the McGill rule is preempted
by the FAA.
24 HODGES V. COMCAST
As we have explained, the broader Mejia-Maldonado
rule—namely, that any injunction against future illegal
conduct constitutes non-waivable public injunctive relief—
ignores the key features of the McGill rule that saved it from
preemption under the FAA in Blair. In upholding the McGill
rule, we emphasized that the category of public injunctive
relief described in McGill did not involve the sort of
procedural complexity or formality that would be
inconsistent with the FAA’s objective of “‘facilitat[ing]
streamlined proceedings’” in arbitration. 928 F.3d at 828
(quoting Concepcion, 563 U.S. at 344). We reached that
conclusion because, as described in McGill, public
injunctive relief does not entail acting in a representative
capacity, does not require class-action procedures, and does
not primarily benefit “specific absent parties.” Id. at 928–
29; see supra at 17.
The same cannot be said of the broader version of the
McGill rule embraced in Mejia and Maldonado. Because it
disregards all of the limitations on public injunctive relief
that were emphasized in McGill and Blair, the broader
Mejia-Maldonado rule forbids waiving claims for
prospective injunctive relief against unlawful conduct even
if, for example, the implementation of such an injunction
would require evaluation of the individual claims of
numerous non-parties. The point is illustrated by
considering the particular types of injunctive relief sought in
Mejia and Maldonado themselves—namely, injunctions
regulating the drafting and substantive terms of actual
contracts with innumerable different persons. See supra
at 19– 23. Implementing such relief would require a level of
procedural complexity that is inherently incompatible “with
the informal, bilateral nature of traditional consumer
arbitration,” Blair, 928 F.3d at 830, and with the “efficient,
streamlined procedures” that the FAA seeks to protect.
HODGES V. COMCAST 25
Concepcion, 563 U.S. at 344; cf. Broughton, 988 P.2d at 77(noting that, “[i]n some cases, the continuing supervision of
an injunction is a matter of considerable complexity” that
involves “quasi-executive functions of public administration
that expand far beyond the resolution of private disputes”). 5
The dissent wrongly discounts the fact that the Mejia-
Maldonado rule precludes waiver of forward-looking
injunctive relief, even if its implementation would involve
administrative complexity that is inconsistent with bilateral
arbitration. According to the dissent, this concern is
irrelevant, because an adjudicator would not need to
“examine the claims” of individuals “before entering an
order like that.” See Dissent at 38 (emphasis added). But
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.
988 P.2d at 77.
By insisting that contracting parties may not waive a
form of relief that is fundamentally incompatible with the
sort of simplified procedures the FAA protects, the Mejia-
Maldonado rule effectively bans parties from agreeing to
arbitrate all of their disputes arising from such contracts. To
5
It is worth recalling that, when Broughton and Cruz initially set out
to define a category of public injunctive relief, they did so in the course
of formulating a rule that sought to identify forms of relief that were so
fundamentally inconsistent with arbitration that California law did not
permit “this type of injunctive relief to be arbitrated.” Broughton,
988 P.2d at 76. Such an explicitly anti-arbitration rule is, of course,
preempted by the FAA, see Ferguson, 733 F.3d at 934, and in McGill,
the California Supreme Court expressly pivoted away from the
“Broughton-Cruz rule” and instead sought to define the specific class of
public injunctive relief that could never be waived. 393 P.3d at 90.
26 HODGES V. COMCAST
say that such a rule is not preempted would flout Supreme
Court authority. See, e.g., Epic Sys., 138 S. Ct. at 1623(holding that, under Concepcion, “courts may not allow a
contract defense to reshape traditional individualized
arbitration” and “a rule seeking to declare individualized
arbitration proceedings off limits” is preempted by the
FAA). And that we cannot do.
C
Accordingly, we reaffirm that non-waivable “public
injunctive relief” within the meaning of the McGill rule
refers 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. See supra at 15–16.
With these principles in mind, we address whether Hodges’
complaint seeks such relief. Although the complaint labels
the requested relief as “public,” we must look beyond such
conclusory assertions and assess for ourselves whether,
under the applicable standards, the relief requested
implicates the McGill rule. We conclude that it does not.
The complaint seeks injunctive relief requiring Comcast
to take the following actions with respect to those persons
who are “cable subscribers” of Comcast (all emphasis
added):
(1) “clearly and conspicuously notify cable
subscribers in writing, at the requisite
times, of the period during which it
maintains their [personally identifiable
information (“PII”)], including video
activity data and demographic data”;
HODGES V. COMCAST 27
(2) “stop using its cable system to collect
cable subscribers’ personally identifiable
video activity data for advertising
purposes without their prior written or
electronic consent”;
(3) “destroy all personally identifiable video
activity data collected from cable
subscribers for advertising purposes
without prior written or electronic
consent and any information derived in
whole or part from such data”;
(4) “change its procedures to provide cable
subscribers who request access to their
PII with access to all such PII in
Comcast’s possession, including video
activity data and demographic data”;
(5) “stop using its cable system to record,
transmit, or observe video activity data
about cable subscribers without their
express written consent”;
(6) “destroy all video activity data collected
from cable subscribers through
Comcast’s cable system without their
express written consent”;
(7) “provide cable subscribers who request
access to their individually identifiable
subscriber information with access to all
such information gathered by Comcast
within 30 days, including video activity
data.”
28 HODGES V. COMCAST
At least some (but not all) of these requested forms of
relief seek forward-looking prohibitions against future
violations of law. But as we have explained, that alone is
not enough to classify the remedy as public injunctive relief
within the meaning of the McGill rule. And unlike the public
injunctive relief sought in McGill, Broughton, and Cruz,
these requests on their face stand to benefit only Comcast
“cable subscribers”—i.e., by definition they will only benefit
a “group of individuals similarly situated to the plaintiff.”
McGill, 393 P.3d at 90; see also Capriole, 7 F.4th at 854,
2021 WL 3282092, at *13; Clifford, 251 Cal. Rptr. 3d at 278.
There is simply no sense in which this relief could be said to
primarily benefit the general public as a more diffuse whole.
See McGill 393 P.3d at 89–90 (relief that incidentally
benefits the public does not suffice to convert private relief
to public relief).
Moreover, it is apparent that administering any
injunctive relief of the sort sought here would entail the
consideration of the individualized claims of numerous cable
subscribers. The relief sought here is not the equivalent of a
simple prohibition on running a false advertisement or a
mandatory injunction to obtain certain licenses or to make
additional public disclosures in advertising. On the contrary,
each form of relief would require either consideration of
which particular consents each subscriber has or has not
given or examination of which individualized disclosures
have or have not been made. Administering an injunction of
this sort, on this scale, is patently incompatible with the
procedural simplicity envisioned by bilateral arbitration.
Stolt-Nielsen, 559 U.S. at 685–86; Concepcion, 563 U.S.
at 348–49. We do not construe California’s McGill rule as
purporting to insist that the right to seek that sort of relief is
non-waivable. But to the extent that the McGill rule did so,
it would be a much different rule from the one we confronted
HODGES V. COMCAST 29
in Blair, and this broader version of the rule is preempted by
the FAA.
III
We reverse the district court’s denial of Comcast’s
motion to compel arbitration, and we remand to the district
court with instructions to grant that motion.
REVERSED AND REMANDED.
BERZON, Circuit Judge, dissenting:
The majority concludes, contrary to our 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 is not “public injunctive relief”
under California state law. I disagree.
This case is indistinguishable from our decision in Blair
v. Rent-A-Center, Inc., 928 F.3d 819 (9th Cir. 2019), and the
California Court of Appeal’s recent decisions in Mejia v.
DACM Inc., 54 Cal. App. 5th 691 (2020), and Maldonado v.
Fast Auto Loans, Inc., 60 Cal. App. 5th 710 (2021), all of
which held that an injunction affecting the contract terms a
business could offer to members of the public qualified as
public injunctive relief. Here, too, Hodges requests an
injunction that would require Comcast to provide a
statutorily mandated notice at the time an agreement is
entered—that is, when a member of the general public is
deciding whether to become a Comcast subscriber. Just as in
Blair, Mejia, and Maldonado, the relief sought here “has the
primary purpose and effect of prohibiting unlawful acts that
threaten future injury to the general public” and is therefore
30 HODGES V. COMCAST
public injunctive relief. McGill v. Citibank, N.A., 2 Cal. 5th
945, 951 (2017).
In Blair, the plaintiffs “entered into rent-to-own
agreements” with Rent-A-Center, which “operates stores
that rent household items to consumers for set installment
payments.” Blair, 928 F.3d at 822. The plaintiffs “alleged
that Rent-A-Center structured its rent-to-own pricing in
violation of [California] law.” Id. In particular, the plaintiffs
alleged violations of a statute that sets maximum prices that
businesses may charge for rent-to-own items, in proportion
to the items’ actual cost. Id. at 823. Plaintiffs sought “to
enjoin future violations of these laws.” Id.
Obviously, the injunction requested in Blair would not
directly benefit every member of the general public. It would
benefit those members of the public who contemplate
entering into rent-to-own agreements with Rent-A-Center or
do enter into such agreements, by ensuring that they are
offered terms compliant with California law. We concluded
in Blair that the plaintiffs sought public injunctive relief. Id.
at 831 n.3. We reasoned that “Blair seeks to enjoin future
violations of California’s consumer protection statutes, relief
oriented to and for the benefit of the general public.” Id.
Similarly, in Mejia, the plaintiff bought a used
motorcycle from a dealership, Del Amo, and financed the
purchase using a credit card he obtained through the
dealership. Mejia, 54 Cal. App. 5th at 694. He alleged that
the dealership had violated a state law requiring it “to
provide its customers with a single document setting forth all
the financing terms for motor vehicle purchases made with a
conditional sale contract.” Id. at 695. The plaintiff sought
“an injunction prohibiting Del Amo from selling motor
vehicles ‘without first providing the consumer with a single
document containing all of the agreements of Del Amo and
HODGES V. COMCAST 31
the consumer with respect to the total cost and the terms of
payment for the motor vehicle.’” Id. at 695–96.
Del Amo maintained that the injunction requested was
“private” because it would “benefit only a ‘narrow group of
Del Amo customers’—the class of similarly situated
individuals who, like Mejia, would buy a motorcycle from
Del Amo with a conditional sale contract.” Id. at 702. The
California Court of Appeal rejected that argument, reasoning
that the injunction sought would force “Del Amo to cease
‘selling motor vehicles in the state of California without first
providing the consumer with all [mandated] disclosures . . .
in a single document.’” Id. at 703. In other words, the relief
would not be limited to “class members or some other small
group of individuals” but would benefit any member of the
general public who in the future considers buying a
motorcycle from Del Amo. Id.
Finally, in Maldonado, the defendant lender, Fast Auto
Loans, “offered loans to California consumers . . . in
immediate need of cash . . . [who] have limited credit
opportunities.” Maldonado, 60 Cal. App. 5th at 713
(alteration omitted). The plaintiffs alleged that the lender
“charged unconscionable interest rates” on the loans in
violation of California law. Id. The plaintiffs requested an
injunction requiring the lender, among other things, to
“cease charging an unlawful interest rate on its loans
exceeding $2,500.” Id. at 715.
Analyzing whether the plaintiffs sought public
injunctive relief, the California Court of Appeal began by
rejecting the lender’s argument that McGill “only applies to
plaintiffs seeking to enjoin false or misleading advertising
on behalf of the general public.” Id. at 721 (emphasis
omitted). The court reasoned that “California’s consumer
protection laws must be liberally, not narrowly, applied.” Id.
32 HODGES V. COMCAST
(citing McGill, 2 Cal. 5th at 954). California’s Unfair
Competition Law, Cal. Bus. & Prof. Code § 17200 et seq.
(“UCL”), protects consumers from any “unfair” business
practice, not just deceptive advertising. McGill, 2 Cal. 5th
at 954. The “primary form of relief available under the UCL
to protect consumers from unfair business practices is an
injunction.” Id. (citation omitted). The Court of Appeal
observed that “no case” had limited the “remedy of public
injunctions” under the UCL “to false advertising claims.”
Maldonado, 60 Cal. App. 5th at 721.
The Court of Appeal also rejected the lender’s argument
that the injunction sought was “private” relief because it
would benefit only the lender’s customers and not the
general public. The court reasoned,
The requested injunction cannot be deemed
private simply because Lender could not
possibly . . . enter into agreements with[]
every person in California. Such a holding
would allow Lender to continue violating the
UCL and [Consumers Legal Remedies Act,
Cal. Civ. Code § 1750 et seq.] because
consumers harmed by the unlawful practices
would be unable to act as a private attorney
general and seek redress on behalf of the
public. It is enough that the requested relief
has the purpose and effect of protecting the
public from Lender’s ongoing harm.
Id. at 722.
The injunction sought by Hodges includes relief that is
indistinguishable from the relief that we and the California
Court of Appeal deemed public injunctive relief in Blair,
Mejia, and Maldonado. Hodges seeks an injunction
HODGES V. COMCAST 33
requiring Comcast to “clearly and conspicuously notify
cable subscribers in writing, at the requisite times, of the
period during which it maintains their [personally
identifiable information (“PII”)], including video activity
data and demographic data (under the Cable Act and UCL).”
See Majority op. 26. The Cable Act supplies the requisite
times: “[a]t the time of entering into an agreement to
provide any cable service or other service to a subscriber
and at least once a year thereafter.” 47 U.S.C. § 551(a)(1)
(emphasis added). In other words, as Comcast’s lawyer
stated at oral argument, the disclosure requested by Hodges
“is a term of the contract for contracting parties.” Thus, the
injunction would benefit not just existing Comcast
subscribers but any member of the public who considers
entering into, or does enter into, an agreement with
Comcast—just as the injunctions in the cases discussed
above would protect members of the public who consider
contracting with or do contract with Rent-A-Center, Del
Amo, and Fast Auto Loans in the future. In all four cases,
the requested injunction would benefit the general public by
preventing the defendant business from contracting or
proposing to contract with any member of the public—not
just current customers—on unfair terms.
The majority acknowledges our binding holding in Blair
that an injunction preventing “Rent-A-Center from using an
unlawful pricing structure” was public injunctive relief, but
it fails to compare that relief with the relief sought here.
Majority op. 17. As for Mejia and Maldonado, the majority
suggests those cases were wrongly decided because the relief
requested “would primarily benefit the class of persons who
actually purchased motorcycles” (in Mejia) or “who actually
sign lending agreements” (in Maldonado), “and not the
general public as a whole.” Majority op. 19, 21. That
characterization is inaccurate. As here, the requirement in
34 HODGES V. COMCAST
Mejia and Maldonado applied before the transaction was
consummated, and so applied with respect to both potential
customers and actual customers. And the majority does not
explain why an injunction that benefits potential and actual
purchasers of motorcycles (or potential and actual
borrowers) when they are considering whether to enter into
a transaction does not benefit the general public; it simply
asserts that conclusion. Likewise, the majority concludes
with little analysis that the relief sought by Hodges regarding
the privacy notice is private because it would benefit only
Comcast subscribers, not “the general public as a more
diffuse whole.” Majority op. 28. But, again, the notice
requirement applies at the point of sale and periodically
thereafter and appears intended to protect the right of any
potential customer—who could be anyone in California, as
there are no selective criteria—to choose not to subscribe if
the privacy term is not acceptable.
The implicit premise underlying the majority’s
reasoning is that the concept of public injunctive relief is
confined to what the majority calls its “paradigmatic
example”: “an injunction against the use of false
advertising.” Majority op. 15. This premise rests on a fiction:
Advertisements reach the public as a “diffuse whole,” so an
injunction barring false advertising benefits the whole,
diffuse public. And conversely, this same reasoning goes, an
injunction regulating the terms a business may offer
consumers in a contract is private because it only benefits
those consumers who actually enter into, or are considering
entering into, a contract.
The notion that advertising reaches every member of the
whole, diffuse public was never true, and it is even less true
in today’s world of highly targeted advertising, in which a
great many ads are intended for a very specific audience.
HODGES V. COMCAST 35
Furthermore, an injunction preventing a business from
publishing a false advertisement does not even directly
benefit every person who would have seen the
advertisement. It benefits only those consumers who would
have been taken in by it—in other words, the potential
buyers of the misleadingly advertised product. Yet, under the
majority’s logic, an injunction preventing a motorcycle
dealership from posting a deceptive advertisement on its
premises would be public injunctive relief, while an
injunction preventing the same dealership from including an
unlawful term in its proposed sale contracts would be purely
private relief. That result is nonsensical. In each case, the
direct beneficiaries of the injunction are a relatively specific
group: consumers interested in buying motorcycles. Yet
both injunctions benefit the general public because any
member of the general public may at some time in the future
become interested in purchasing a motorcycle and so be
misled by a deceptive advertisement or by an unlawful term
in a proposed contract when considering buying a
motorcycle. In either context, an injunction could prevent the
dealership from treating unfairly these members of the
public newly considering buying a motorcycle.
Likewise, here, any member of the general public may
decide to sign up with Comcast or may read the terms offered
before deciding whether to sign up. As far as appears,
Comcast offers its services to the public at large, the only
criteria for admission into the “customer” group being
willingness to sign an agreement for services and pay the
requisite service rates. And Comcast in fact reaches a large
number of cable consumers in California: the record shows
that as of 2014, Comcast reportedly had 2.2 million
subscribers in the state, or 40 percent of the state cable
market. Undoubtedly, a great many members of the general
36 HODGES V. COMCAST
public will in the future consider contracting with, and will
contract with, Comcast for cable service.
In contrast, members of the public could not freely join
the group of former students in Kilgore v. KeyBank, Nat’l
Ass’n, 718 F.3d 1052 (9th Cir. 2013) (en banc). The flight
school no longer operated, and the bank no longer offered
student loans. Id. at 1056, 1061. Nor could any member of
the general public choose to become an employee of the
defendant software company in Clifford v. Quest Software
Inc., 38 Cal. App. 5th 745 (2019), or a driver for Uber in
Capriole v. Uber Technologies, Inc., No. 20-16030, 2021
WL 3282092 (9th Cir. Aug. 2, 2021). Surely not just anyone
can walk through the doors of Quest Software, announce, “I
accept your offer of employment,” and start working there.
And Uber requires its drivers to have one to three years of
licensed driving experience and to pass a background check,
among other requirements. See Driver Requirements, Uber,
https://www.uber.com/us/en/drive/requirements/ (last
visited Aug. 9, 2021). The relief sought in Kilgore, Clifford,
and Capriole benefited a circumscribed group of people;
there was no sense in which the injunctions “prohibit[ed]
unlawful acts that threaten[ed] future injury to the general
public.” McGill, 2 Cal. 5th at 955.
Our court’s job in deciding this question of state law is
to “apply the law as [we] believe[] the California Supreme
Court would apply it.” Edgerly v. City & Cty. of San
Francisco, 713 F.3d 976, 982 (9th Cir. 2013) (citation
omitted). In my view, it is highly unlikely that the California
Supreme Court would limit public injunctive relief to the
false advertising context. At a minimum, in keeping with the
liberal construction given to California’s consumer
protection statutes, public injunctive relief must also include
injunctions affecting the contract terms a business may offer
HODGES V. COMCAST 37
to potential customers. 1 That was the import of our holding
in Blair, and it is what the California Court of Appeal
decided in Mejia and Maldonado. “In the absence of a
controlling California Supreme Court decision, we follow
decisions of the California Court of Appeal unless there is
convincing evidence that the California Supreme Court
would hold otherwise.” Edgerly, 713 F.3d at 982 (internal
quotation marks and citation omitted). The California
Supreme Court denied petitions for review in both Mejia and
Maldonado, and we have no evidence, let alone “convincing
evidence,” that it would disapprove those cases.
Besides drawing an arbitrary line between the public
who views advertisements and the public who signs up for
cable or buys motorcycles, the majority posits an additional
reason why the relief sought here and in Mejia and
Maldonado is private, not public. The majority maintains
that “administering any injunctive relief of the form sought
here would entail the consideration of the individualized
claims of numerous cable subscribers.” Majority op. 28; see
id. at 23–26. I cannot see why it would. The injunction
requested by Hodges would simply require Comcast to adopt
new operating procedures going forward: provide a
particular notice when a contract is signed, obtain consent
before using its cable system to collect certain data, and so
1
Because at least part of the relief Hodges seeks is public injunctive
relief, I would affirm the district court’s order denying the motion to
compel arbitration. See Blair, 928 F.3d at 823, 831 n.3, 832 (affirming
the denial of a motion to compel arbitration on the basis that some of the
injunctive relief Blair sought was public injunctive relief). For present
purposes, I need not and therefore do not address whether the other
forward-looking injunctive relief that Hodges seeks—which would
benefit future Comcast subscribers by, for example, requiring Comcast
to stop collecting certain data without subscribers’ consent—is also
public injunctive relief. See Majority op. 26–28.
38 HODGES V. COMCAST
on. See Majority op. 26–27 (quoting complaint). No
adjudicator would have to examine the claims of individual
cable subscribers before entering an order like that. True, if
someone were to bring an action to enforce the injunction,
an adjudicator would need to examine the facts to determine
whether the injunction had been violated, but that is also true
in the false advertising context that the majority offers as a
foil. See Majority op. 28–29. It is true in any enforcement
action.
Further, the majority erroneously assumes that the
arbitrator who awarded such an injunction would be
responsible for enforcing it. On that assumption, the majority
maintains that the injunctive relief requested here and in
Mejia and Maldonado involves “procedural complexity or
formality that would be inconsistent with the [Federal
Arbitration Act’s (‘FAA’s’)] objective of ‘facilitating
streamlined proceedings’ in arbitration,” Majority op. 24
(quoting Blair, 928 F.3d at 828) (alteration omitted), leading
to the pronouncement of an “alternative” holding that Mejia
and Maldonado are preempted by the FAA, id.
But the majority’s assumption as to the enforcement of
an arbitrator-issued injunction is wrong. Once an arbitrator
grants a claim for injunctive relief, the claimant may seek
judicial confirmation of the award under California Civil
Code sections 1285–1287.4. The receiving court “shall
confirm the award as made,” Cal. Civ. Code § 1286, and
enter “judgment . . . in conformity therewith,” id. § 1287.4.
The resulting judgment “may be enforced like any other
judgment of the court in which it is entered,” id., meaning
that a motion for enforcement may be brought before the
court, see O’Hare v. Mun. Res. Consultants, 107 Cal. App.
4th 267, 278 (2003) (explaining that an arbitrator “may
award permanent injunctive relief,” which is “enforceable
HODGES V. COMCAST 39
only when confirmed as a judgment of the superior court”).
The FAA likewise provides that a judgment confirming an
arbitration award “may be enforced as if it had been rendered
in an action in the court in which it is entered.” 9 U.S.C.
§ 13(c).
The possibility that a future motion to enforce an
injunction awarded by an arbitrator might require factfinding
by a court has no bearing on the complexity of the arbitration
itself. It “does not interfere with the bilateral nature of a
typical consumer arbitration” or “require[] a ‘switch from
bilateral . . . arbitration’ to a multi-party action.” Blair,
928 F.3d at 829. As the majority’s premise of
incompatibility between the key features of arbitration and
the public injunctions permitted by Mejia and Maldonado is
mistaken, its alternative holding is incorrect.
The majority has failed to provide a convincing rationale
for the distinction it draws in this case between relief
benefiting consumers who contract with businesses and
relief benefiting consumers who are exposed to
advertisements. Because the distinction is untenable and I
believe it would be rejected by the California Supreme
Court, I dissent. I would affirm the district court’s denial of
the motion to compel arbitration.