NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
JUN 28 2019
STEVEN MCARDLE, No. 17-17246 MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
Plaintiff-Appellee, D.C. No. 4:09-cv-01117-CW
v.
MEMORANDUM*
AT&T MOBILITY LLC; NEW
CINGULAR WIRELESS PCS, LLC;
NEW CINGULAR WIRELESS
SERVICES, INC.,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of California
Claudia Wilken, District Judge, Presiding
Argued and Submitted February 12, 2019
San Francisco, California
Before: McKEOWN, W. FLETCHER, and MURGUIA, Circuit Judges.
AT&T Mobility LLC (“AT&T”) appeals the district court’s order rescinding
its earlier order to compel arbitration and vacating the arbitration award. We have
jurisdiction under 9 U.S.C. § 16(a)(1), and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
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
AT&T and plaintiff Steven McArdle is null and void in its entirety. Subsection
2.2(6) of the parties’ agreement purports to waive McArdle’s right to pursue public
injunctive relief in any forum and so is unenforceable under California law. See
McGill v. Citibank N.A., 393 P.3d 85, 94 (Cal. 2017). Subsection 2.2(6) of the
agreement continues: “If this specific provision is found to be unenforceable, then
the entirety of this arbitration provision shall be null and void.”
The text’s non-severability clause plainly invalidates the entire arbitration
agreement. Contrary to AT&T’s assertions, there are no “ambiguities about the
scope of [the] arbitration agreement.” See Lamps Plus, Inc. v. Varela, 139 S. Ct.
1407, 1418 (2019) (citing Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp.,
460 U.S. 1, 24–25 (1983)); see also E.E.O.C v. Waffle House, Inc., 534 U.S. 279,
294 (2002) (“[W]e do not override the clear intent of the parties, or reach a result
inconsistent with the plain text of the contract, simply because the policy favoring
arbitration is implicated.”).
2
AT&T’s proposed two-step process derived from our opinion in Ferguson v.
Corinthian Colleges, Inc., 733 F.3d 928 (9th Cir. 2013) is impermissible where the
arbitration agreement is null and void in its entirety. Under these circumstances,
the district court did not err in vacating the arbitration award and rescinding its
prior order compelling arbitration.
AFFIRMED.
3
Steven McArdle v. At&t Mobility LLC
Combined Opinion