July 08, 2020 Articles

In an Arbitration Agreement, When is a Class Action Not a Class Action?

The answer is when it’s a claim for public injunctive relief.

By John Bickerman

In a lightly reported order by the U.S. Supreme Court on June 1st, the Court declined to grant certiorari to a Ninth Circuit case. The Ninth Circuit, in McCardle v. AT&T Mobility, No. 17-17246 (June 28, 2019), an unpublished opinion, and in a concurrent opinion in Blair v. Rent-A-Center, Inc., 928 F.3d 819 (9th Cir. 2019) had held that an arbitration agreement could not waive a party’s right to seek public injunctive relief. To reach this conclusion, the court asserted that federal pre-emption by the Federal Arbitration Act (FAA) did not apply to a substantive right enacted by the State of California.  

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