Judge Berzon Dissents.

        Plaintiff Brandon Hodges brought a putative class action against Comcast, challenging its privacy and data-collection practices and seeking injunctive relief. The trial court denied Comcast's motion to compel arbitration, on the ground that Hodges sought public injunctive relief that could not be waived with an agreement to arbitrate. The Ninth Circuit panel remanded with instructions to  grant the motion. Judge Berzon dissented. Hodges v. Comcast, No. 19-16483 (9th Cir.  9/10/21) (Collins, VanDyke; Berzon, dsst.).

        The majority and dissenting opinions rely on whether Hodges was seeking "public injunctive relief," because California's "McGill rule" is that a party seeking public injunctive relief cannot waive the right to go to court. California Civil Code §3513 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."

        "[P]ublic injunctive relief within the meaning of McGill," writes Judge Collins, "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 majority's view is  that Hodges' requested relief was for past wrongs, and would have benefited a limited private class; thus, public injunctive relief is not  at issue. And if the injunctive relief requested by Hodges requires an individualized look at claims, then the speed, efficiency, and economy of arbitration would be undermined, and the Federal Arbitration Act would preempt an expansive interpretation of the McGill rule that would undermine the purpose of arbitration.

        Judge Berzon dissents, pointing out that the injunctive relief requested by Hodges includes rewriting Comcast contracts, that such relief is forward looking, and that such relief would benefit a large swath of the  public, given that "Comcast reportedly had 2.2 million subscribers in the state, or 40% of the state cable market."  "At a minimum, in keeping with the liberal construction given to California's consumer protection statutes," writes Judge Berzon, "public injunctive relief must also include injunctions affecting the contract terms a business may offer to potential customers."

        COMMENT: It is sometimes said that  liberal judges want to keep the door to the federal  courthouse wide open (for every wrong there is a remedy), whereas conservative judges want to shut the door to prevent a flood of cases. So is it noteworthy in Hodges v. Comcast that Collins and VanDyke are  Trump appointments, and Berzon is a Clinton appointment?