18th Annual Workplace Class Action Report - 2022 Edition

636 Annual Workplace Class Action Litigation Report: 2022 Edition Hearn, et al. v. Comcast Cable Communications , 992 F.3d 1209 (11th Cir. 2021). Plaintiff filed a putative class action against Defendant alleging violation of the Fair Credit Reporting Act (“FCRA”). Defendant filed a motion to compel arbitration of Plaintiff’s claims pursuant to an arbitration agreement contained in its Subscriber Agreement. The agreement broadly applied to "any claim or controversy related to Comcast" and specified that it survived the termination of the agreement. Id . at 1211. The District Court denied Comcast’s motion to compel arbitration. On appeal, the Eleventh Circuit reversed and remanded the District Court’s ruling. Plaintiff asserted that when he inquired about pricing and obtaining services after he had cancelled them previously he had already terminated services under the Subscriber Agreement. Plaintiff alleged that Defendant pulled his credit information during the call without his knowledge or permission. Plaintiff contended that: (i) there was no valid arbitration agreement between the parties; (ii) his FCRA claim did not relate to the Subscriber Agreement and therefore was not arbitrable; and (iii) the Arbitration Provision was overly broad and unconscionable. The District Court had found that Plaintiff’s claim fell outside the scope of the agreement, and that the FAA could only compel Plaintiff to arbitrate his FCRA claim if it "arose out of" or "related to" the earlier Subscriber Agreement, which it concluded it did not. Id . at 1212. The Eleventh Circuit noted that the arbitration agreement applied broadly to all disputes between the parties and applied even if the dispute arose after the Subscriber Agreement was terminated. The Eleventh Circuit concluded that Plaintiff’s FCRA claim relate to the Subscriber Agreement and therefore fell within the scope of the arbitration provision. The Eleventh Circuit reasoned that Defendant was only able to perform the credit check because of its previous relationship with Plaintiff. The Eleventh Circuit further explained that it was undisputed that Plaintiff was calling to inquire about obtaining services at the same address, and thus Defendant would be "reinstating" services that were previously disconnected, and accordingly, he was still bound by the terms of the Subscriber Agreement. Id . at 1215. For these reasons, the Eleventh Circuit reversed and remanded the District Court’s ruling denying Defendant’s motion to compel arbitration. Hodges, et al. v. Comcast Cable Communications, 2021 U.S. App. LEXIS 27268 (9th Cir. Sept. 10, 2021). Plaintiff, a cable subscriber, brought a putative class action in state court challenging Defendant’s privacy and data-collection practices and sought a variety of monetary and equitable remedies. Plaintiff alleged that Defendant violated the putative class members’ statutory privacy rights in collecting data about subscribers’ cable television viewing activity as well as personally identifiable demographic data about its subscribers. In his complaint, Plaintiff alleged that Defendant violated the Cable Communications Policy Act of 1984 ("Cable Act") and the California Invasion of Privacy Act ("CIPA"). In addition, Plaintiff asserted that the same violations of the Cable Act and the CIPA constituted unlawful business practices, thereby giving rise to a derivative cause of action under California’s unfair competition law ("UCL"). Defendant removed the case and then moved to compel arbitration pursuant to the parties’ subscriber agreements. The parties disputed whether the relief that Plaintiff sought was classified as “public injunctive relief” that implicated California’s rule established in McGill v. Citibank, N.A. , 2 Cal. 5th 945 (Cal. 2007), under which an arbitration provision that waives the right to seek public injunctive relief in all forums is unenforceable. The District Court held that, because Plaintiff’s complaint sought public injunctive relief as one of its requested remedies, the complaint implicated California’s McGill rule and the arbitration provision was unenforceable. On Defendant’s appeal, the Ninth Circuit reversed the District Court’s denial of Defendant’s motion to compel arbitration. First, the Ninth Circuit reaffirmed that non-waivable "public injunctive relief" within the meaning of the McGill rule refers to prospective injunctive relief that aims to restrain future violations of law for the benefit of the general public as a whole. Id . at *5-6. By contrast, when the injunctive relief being sought is for the benefit of a discrete class of persons, or would require consideration of the private rights and obligations of individual non-parties, such a remedy constitutes private injunctive relief. Further, the Ninth Circuit addressed whether Plaintiff’s complaint sought “public injunctive relief.” Id . at *11. Although the complaint labeled the requested relief as "public," the Ninth Circuit looked beyond such conclusory assertions and assessed whether, under the applicable standards, the relief requested implicated the McGill rule. Id. Looking at Plaintiff’s complaint the Ninth Circuit found that while some of the requested forms of relief sought forward-looking prohibitions against future violations of law, this alone was not enough to classify the remedy as public injunctive relief within the meaning of the McGill rule. Because the requests on their face stood to benefit only Defendant’s cable subscribers, the Ninth Circuit concluded that there was simply no sense in which this relief could be said to primarily benefit the general public as a more diffuse whole. As such, the Ninth Circuit held that the District Court misconstrued what constituted "public injunctive relief" for purposes of the McGill rule, and it therefore erred in concluding that the complaint sought such relief and implicated the McGill