Charles E. Tillage; Joseph M. Loomis v. Comcast Corporation; Comcast Cable Communications, LLC

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARLES E. TILLAGE; JOSEPH M.
LOOMIS,
Plaintiffs-Appellees,
v.
COMCAST CORPORATION;
COMCAST CABLE
COMMUNICATIONS, LLC,
Defendants-Appellants.
No. 18-15288
D.C. No. 3:17-cv-06477-VC
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Vince Chhabria, District Judge, Presiding
Argued and Submitted February 12, 2019
San Francisco, California
Before: McKEOWN, W. FLETCHER, and MURGUIA, Circuit Judges.
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.
FILED
JUN 28 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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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.
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, 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).
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AFFIRMED.
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