i please the court mark perry for comcast i'd like to reserve three minutes and i'll do my best not to repeat all you've heard for the last hour in way that we did that i'd like to make two points principal points the first is that the mcgill rule is not within the savings clause at all and let's set the table with epic systems epic systems has a section of the opinion part two that says to begin with the a of the savings clause in the entire section two of the epic systems opinion doesn't have to do with the n r a it's only the saving clause and the court tells us at page sixteen twenty two and this is a quote the saving clause does not save defenses target arbitration by name let's just stop there and read me guilt because the mcgill court told us what it's holding was and this is a page ninety four of the pacific third of your opinion quote the waiver in a pre dispute arbitration agreement of the right to seek public injunctive relief is invalid and unforeseeable under california law mcgill targets arbitration by name it does that a page ninety four it does that it pays eighty seven and it does that three other times in the opinion in fact the mcgill rule has never been applied other than in the arbitration context the only case the mcgill court cited was little an arbitration case the only cases in which it has been applied are the three cases now before the court and the roberts case which is tagging along behind it in this court my friends on the other side all of my friends on all these other sides cannot cite a single case in which the mcgill rule has been applied outside of the arbitration context i'm not sure that that's necessarily so it may be that the only place where you've got a seriously contestable issue is in arbitration your honor therefore that's where we get to cases your honor to answer that one is we put them you know we threw down this gauntlet and nobody has cited a case the second no unfortunately and that's entirely consistent with what i just said well what the kindred nursing court said in the supreme court which involved a similar problem right is this is this rule targeted arbitration or is it more general and what the supreme court said is utterly fanciful contracts can't save a state law rule in other words if you can hypothesize a non arbitration context contract that's not enough that the that the supporter of the rule the state or the plaintiff here has to actually point to a real contract in the real world in which this is been applied there are no contracts this is a a feature of consumer arbitration this is a point that justice kagan made very eloquently in the dissent in epic systems that this is a a a development of the supreme court's arbitration law that companies are putting these provisions in there are betray ssion clauses and the reason for that and this goes to a point it was made in the last argument is that the arbitration act specifically pretax with whom one decides to arbitrate with whom the court has said that four times now with whom the comcast agreement says with whom it says that the arbitrator quote and this is a page seventy three may or ward relief only in favor of the individual party seeking relief and may not award relief for or against anyone who is not a party so comcast and its subscribers have agreed between themselves with whom the arbitration it will be conducted the rule says that that agreement which is not ambiguous which is not confusing which is not mcgill rule is targeting only arbitration but it would certainly affect the contract that i have just described and and i'm not aware your honor of any company that has a contract of that sort well a little insight and it would be a very foolish good company t contract because the rule is so clear well it's actually the opposite your honor it is the company's desire to move the claims into individual arbitration bilateral arbitration and narrow the scope to avoid the problem for example of conflicting injunctions and this is a subject to a disclosure requirement from the first arbitrator a non disclosure requirement and second arbitrator a restitution requirement from the third nothing at all from the fourth and so on in the last argument we heard you then respond to and i understand you respond i'd like a little more detail i heard from the first argument that a public injunction says stop here and there and the injunctions you just hypothesized are all affirmative injunction so tell me what we're likely to be getting here in these public injunctions where the suit is brought against the company alleging same misrepresentation i think it depends on the allegations in the case i think it's overly simplistic to say stop that that is a a form of injunction in the comcast case the allegation is that there are misrepresentation regarding certain charges for cable services the requested injunction is to remove the disclosure the the representation add an affirmative disclosure and stop charging the money which they which the point of the ledges millions and millions of dollars so it is not just a stop injunction it is a reconfigure your business practices injunction and of course two different claimants with two different arbitrators could could ask for and receive different injunctions on a company could be subject to conflicting obligations and it's no answer to her we just heard a little while ago the answer to that would be intervention well intervention means collective proceedings and the whole purpose of concepcion and epic systems is to avoid that our contract the comcast contract prohibits the arbitrator from consolidating one or more claims so it cannot be done what comcast has requested and what the subscribers have agreed to by not opting out of their agreements is individualized proceeding so that you can get an injunction that says stop charging me now of course in that individual case you would have in federal court the problem that monetary relief is almost certainly adequate to remedy these things so you wouldn't have an injunction at all and this is a big distinction between private injunction public injunctions of course arbitrators can issue injunctions of authorized by the parties but in individual cases they will rarely need to because they will be able to fashion a legal relief or non prospective relief that will fully satisfy the claims put forward in the individual case and remember these are streamlined proceedings these are designed to move consumer disputes quickly through the dispute resolution and get them resolved on an individual basis that's what epic systems the mcgill situation but under california state cases which you look at comparable private attorney general situation that doesn't solve the  is it in your view that the opt out clause is the is the be all and fix saw so there's a significant a stink sion between the mcgill rule and the a skinny and rule as articulated by the california supreme court and that is this the mcgill rule says thou shalt not waive public injunctive relief quote in any forum and the again ian rule which deals with the waiver paga claims does not have that in any foreign language and so the mcgill rule that the intersection then with the opt out clause in the contest agreement is a comcast subscriber who wishes to maintain the right to bring public injunctive relief simply can opt out of the subscriber of the arbitration clause and bring those claims in court and this case this  lawsuit is like a law school examination your honor two of our plaintiffs actually opted out actually amended their complaint to bring public injunctive relief claims they were allowed to proceed so this isn't a hypothetical this is a real thing that happens in the real world that's not true in the paga situation right that that here the only court that's addressed the opt out clause in the comcast agreement was that was the trout district court decision which was site which agreed with comcast that the opt out provision you know moves macgill to the side so that it it provides the either or  l a subscriber may choose to stick with the arbitration take an individual resolution or opt out of arbitration and seek public injunctive relief that is completely consistent with mcgill your honor and for this contract solves the problem now you know with respect to the fact if you stay in arbitration what you have waived it in arbitration but you have not waived it quote in any form you have preserve the right to bring it in court and you know you have taken the op you get the advantages of arbitration to you get you know to make sure i understand are you i believe you said or that you're arguing that mcgill specifically targets arbitration that is our first argument yes so then we passed every other  bank under the under the well established rationale that a intervening supreme court decision trumps and here we have a look at the cobb the most fundamental dispute in soko was whether was limited to class action procedures that was the majority view or bilateralism that was the dissents view and you can find those two concepts at page four thirty six in the majority in four forty four in the dissent this is the same debate by the way that you've been hearing for the last hour between the plaintiffs and the defendants these good course we have we get differing views on one view is that of course subscribe controls and then that side wins the other one is well we can get around you don't need it's consistent with the  company's view it's now you're telling us well it's wrong well look look mr pinkus distinguished it is better than i can so i said i go over that ground again right but if you agree with the plaintiffs that it's indistinguishable then the answer is it should not be extended it should be overrule because a wrong decision may stay on the books but you shouldn't apply it to a new situation because ethics systems resolve the dispute between you and i want to understand that principle it should stay on the books but you shouldn't apply it well it's a paga case right it's a and what mr pinkus said in if i can summarize his argument was paga is not public injunctive relief right for a variety of reasons this court doesn't need to reach out and overrule gratuitously however if the court is persuaded by the plaintiff's argument the paga and publican but drunk of relief are indistinguishable for purposes of f a a preemption analysis which is their basic submission you know we have every supreme court case the last thirty years on our side and they have to  on their side i mean that's really the way thing that's before the court right that's actually fairly common you got the supreme court over there on the ninth circuit over here i mean your honor then we would submit that epic systems again and where i began ethics systems resolve the point in favor of bilateralism it said that what the a protects is an agreement to arbitrate individually that is inconsistent with the mcgill rule it's also inconsistent with therefore the court should apply that and reverse in this case and in all the others i'll reserve the time if i may you may thank you critical i think i'm not going to spend a lot of time on secada because we have already today but i think this is you know this is a cob right down the line i think if anything the distinctions actually cut the other way in other words the case against preemption is stronger in this case if anything and i think that's the case because with pago and there was some discussion about this earlier there are additional procedural complex is there are additional procedures you need a procedure to figure out how many people were harmed and to measure the harm in order to establish the monetary penalty under pogge that's not true with public objective claims there's no additional procedural complexity and with pa the there is actual monetary stak articulated in concepcion those standards were faithfully applied by this court in six and we would submit that if those standards are applied in this case the same result as would be reached what about the scenario that's been discussed here  regarding some sort of affirmative not just the ceased in this is for maybe a different period outside than what the class was identified or the period identified and some of these other actions well in terms of the nature of the type of public injunction would seek in this case it's really you know stop adverts some falsely advertising the price of your cable packages they can charge the fee that they're talking about if they actually are honest and don't lie about the price of their cable package that's part of how they advertise it there's no problem there the type of public injunctive relief that you seek typically and the type of public injunctive relief that we're seeking in this case is stop the false these cases that we're dealing with today are much more like the a skinny and cases and they're distinguishable from the epic concepcion situation because we're dealing here with what our individual claims i think that's a fundamental misunderstanding of the appellant's here today have these are individual claims and in arbitration involving claims that seek the public injunction remedy is entirely bilateral it doesn't bind any third parties due process there's no third party due process rights implicated and the parties are entirely free to choose whatever procedures they wish to arbitrate claims whether or not they include the public injunction remedy in terms  of just responding and cool couple of points that were made by my colleague he said that the mcgill rule targeted arbitration by name and he quoted some language from mcgill itself it's not so the mcgill rule on its face is something that applies to all private agreements the language in mcgill says v arbitration agreement here that's just simply because the contract in question in the gill was an arbitration agreement and i think the answer to you know why are the only litigation that we're seeing involve arbitration agreements is for the reason that was mentioned that's the only place where there are serious contesting of that issue that's the only time that it's going to make its way up to the court the other point that i would make on this is that mcgill doesn't just come from nowhere mcgill is grounded in cal civil code thirty five thirteen which is unquestionably a generally applicable concha principle has nothing to clause that shows up in a lot of arbitration games in other words there's no showing that there are mcgill violations in a lot of arbitration agreements certainly nothing has been shown on that in this case with respect to the opt out clause issue  the whole point of mcgill is that parties can not consensually by private agreement agree to waive the right to pursue these remedies right the the rights belong to the party but the benefits of new are primarily to the benefit of the general public and so it doesn't matter how many chances the private parties have at the outset not to enter into the agreement what it out don't write is it's basically giving one of the use the option to back out of the agreement at the beginning but if they don't back out then the parties continue to have that creed dispute private agreement and that's what violates california law that's what's unenforceable under mcgill right it's i think it's really important to keep in mind what mcgill is and what it's not is not a prohibition on companies imposing something on their customers or depriving their customer of some right it's a prohibition on the parties generally to a private part private agreement entering into this sort of agreement and an opt out right gives again and gives the chance for one of the parties to back out but if they don't do it the parties have that agreement and that's what's on it forcible i think the cases that were mentioned earlier so maybe it's a linguistic difference but you're just saying that if you have such an agreement and has been opted out then it's not a valid agreement which puts agreement continues to be in force so i think that's the that would be the distinction there the skinny in cases that were mentioned earlier i think they're directly on point that they translate directly in every single one of those cases the defendant said yeah i know we have a pago waiver in our contract but we can't possibly be violating skinny and because we gave everybody thirty days in the beginning to back out of that and in every single one of the cases the court said no no giving somebody the chance to opt out at the outset doesn't change the fact that this is a pre dispute agreement and so you're still violating it skinny and the same exact thing is true here the distinction is between a pre dispute opt out opportunity and a post dispute opt out opportunity th mcgill rule is a prohibition on pre dispute waivers of these remedies the trout case is the only case that comcast has a site at all on this issue the district court and shout didn't do any analysis and i think it bears mentioning that before the district court and shout even got to the opt out clause that apparently had already determined that there was no big deal violation in the contract at all so i think that i think i don't think it helps comcast very much at all  i wanted to address a couple of other points that were made earlier and lesser others have questions you know there's the mcgill rule has absolutely no preference as to whether any of these claims or any claims at all get arbitrator to get litigated in court and in that way it's just like the skinny and rule that was issuance of cobb you know there's there's no additional procedural complexity whatsoever when we're talking about claims for the public injunction  remedy you know the if i bring an individual claim in arbitration against comcast under the u c l and i seek a public injunction remedy my arbitration with comcast is entirely proceedings individual arbitrations or litigation this is an individual proceeding this is an individual claim it's entirely bilateral and that's true notwithstanding the fact that members of the public could potentially stand to parties the result is not in forcible by any third parties it remains entirely bilateral unless there are any other questions thank you thank you  one quick point if i may your honors my friend said that the parties remain quote entirely free entirely free to select the arbitration procedures the arbitration procedures in this case thirty our seventy three say the arbitrator may not award relief for or against anyone who is not a party we are not entirely free the district court ruled that that provision violates california law as articulated in mcgill the epic systems case from the supreme court of united states after that says quote an agreement that a contract is an in forcible just because it requires bilateral arbitration which ours does is one that impermissibly disfavors arbitration induced case game over reversed we submit your honor on that basis alone thank you thank you thank both of you for the arguments tillage versus comcast is