The issue in this case is whether the Federal Arbitration Act (FAA) preempts California state case law holding that an individual plaintiff’s right to obtain a “public injunction” against violations of certain California consumer protection laws is unwaivable, and that an arbitration agreement cannot completely foreclose the right to seek such an injunction in some forum. The California Supreme Court announced this rule in McGill v. Citibank (2017), a case in which Public Citizen filed an amicus brief advocating that the Court adopt the rule. Thereafter, in a series of cases in federal district courts in California, defendants argued that the FAA preempts the McGill rule.
In 2019, the Ninth Circuit heard three cases presenting the issue, and in a published opinion called Blair v. Rent-A-Center ruled that the California Supreme Court had been correct in holding that the FAA does not require California to enforce waivers of the right to obtain a public injunction. Defendants in two of the three cases petitioned for rehearing en banc, and the court requested that the plaintiffs respond to the petitions. Public Citizen, acting as co-counsel in one of the cases, McArdle v. AT&T Mobility, assisted in preparing the response to the petition, which the court denied.
AT&T then filed a petition seeking Supreme Court review, and we continued our role as co-counsel, helping to draft the brief in opposition to the petition. On June 1, 2020, the Supreme Court denied the petition.