FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

P A ULA L. B LA I R ; A

ND R EA R O B I N S ON ; H AR

R I S A. F AL E C H I A , Plaintiffs-Appellees
,

v

.

RE N T -A-C E

N T E R , I N C ., a Delaware corporation; R E

N T -A-C E

N T E R W E S T , I N C ., a Delaware corporation,

Defendants-Appellants. No. 17-17221

D.C. No. 3:17-cv-02335- W HA

OPINION

Appeal from

the United States District Court for the Northern District of California W illiamAlsup, District Judge, Presiding

Argued and Subm itted February 12, 2019 San Francisco, California

Filed June 28, 2019

Before: M. Margaret McKeown, W illiamA. Fletcher, and Mary H. Murguia, Circuit Judges.

Opinion by Judge W

. FletcherB LA I R V

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SUMMARY *

Arbitration / Preemption

The panel affirm ed the district court’s denial of Rent-ACenter’s m otion to com p el arbitration and m otion fo r a

man datory stay in a putative class action alleging Rent- ACe nter charged excessive p rices; and dism issed for lac k of jurisdiction Rent- A- Center’s appeals of the district court’s denial o f a d iscretionary stay and deferral on the m otion to strike class claim s.

In McGill v. Citibank, N.A.
, 393 P.3d 85 (Cal. 2017), the California Suprem e Court held that a contr a c tu a l agreem ent purporting to waive a party’s right to see k public injunctive relief in any f

orum was unenforceable under California law. The panel held that the Federa l Arbitration Act does not preem pt California’s McGill rule.

Turning to the parties’ 2015 rent-to-own agreem ent for an air conditioner, the panel held that its severance clause, which

severs plaintiff’s California’s Karnette Rental-Purchase Act, Unfair Com

petition Law, and Consum er Legal Rem edies A ct claim s from the scope of arbitration, was triggered by the McGill rule. The panel further held that the severance clause perm itted such claim s to be brought in court.

Th e panel affirm ed the d istrict court’s refusal to imp os e either a m andatory o r discretionary stay on the non-arbitrable claim s pending arbitration of pl aintiff’s usury claim

.

* This summ ary constitutes no part of the opinion of the court. It h as been prepared by court staff for the convenience of the reader.B LA I R V

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The panel held that it la cked jurisdiction to review the district court’s d enial o f a discretionary stay because appellate jurisdiction under the Federal Arbitration A ct over interlocutory appeals is lim ited to the orders listed in 9 U.S.C. § 16(a)(1). The panel held that a discretionary stay that was based on the district court’s inherent authority to m anage its docket was not a stay under section 3 of the Federal Arbitration Act, and the exceptions that m ight ju s tify extension of appe ll a t e jurisdiction did not apply to the denial of a stay. The panel also held that it lack e d jurisdiction to review the district c o urt ’s decision to defer ruling o n Rent-A-Center’s m otion to strike because it was a non-final appealable o rder not covered by one o f the categories set forth in 9 U.S.C. § 16(a)(1)(A).

C OUNSEL

Robert F. Friedm an (argued) and Vi c k i L. Gillete, Littler Mendelson P.C., Dallas, Texas; Gregory G. Iskander, Littler Mendelson P.C., W alnut Creek
, California; Kaitlyn M. Burke, Littler Mendelson P.C., Las Vega s, Nevada; K irsten F. Gallacher and Vickie Turner, W ilson Turner Kosm o LLP, San Diego, C alifornia; Lily A. North and Henry J. Escher III, Dechert LLP, San Franc isco, California; Christina Sarchio, Dechert L LP, W ashington, D.C.; for Defendants-Appellants.

Michael Rubin (argued) and Eric P. B rown, Altshuler Berzon LLP, San Francisco, California; Zach P

. Dostart and Jam es T. Hannink, Dostart Hannink & Coveneny L LP, La Jolla, California; for Plaintiffs-Appellees.B LA I R V

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OPINION

W . FLETCHER, Circuit Judge:

In McGill v. Citibank, N.A.
, 393 P.3d 85 (Cal. 2017), the California Suprem e Court decided that a contractual agreem ent purporting to waive a party’s right to seek public injunctive reli e f in any forum is unenforceable under California law. W e are asked to decide in this case whether the Federal Arbitration Act (“FAA”) preem pts California’s McGill rule. 1 W e hold it does not.

Plaintiffs brought a putative class action alleging that d ef en d ants R ent-A -C enter, I n c. an d R ent-A-Center W est, In c

. (collectively, “Rent-A-Center”) charged excessive prices for its rent-to- o wn p l a n s f

or household item s. W e affirm the district court’s partial denial o f Rent-A-Center’s m o t i o n to

com pel arbitration. W e also affirm the district court’s denial of Rent-A-Center’s m otion for a m andatory stay of plaintiffs’ non-arbitrable claim s. Finally, we di s mi ss for lack o f jurisdiction Re nt-A-Center’s appeal of the district court’s denial of a d iscretionary stay and its decision to defer ruling

on a m otion to strike class action claim s.

I. Factual and Procedural Background

Rent-A-Center operates stores that rent household item s to consum ers for set installme n t paym ents. If all p aym ents

1 This panel re ceived b riefing and heard argum ent in two additional

case s raising this sam e question: McArdle v. AT& T Mobility L LC (No. 17-17221) and Tillage v. Comcast Corp. (No. 18-15288). Those cases are resolved in separate m em orandum dispositions filed sim ultaneously with this opinion.B LA I R V

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are m ade o n tim e, the consum er takes ownership of the item

. Re nt-A-Center also sets a cash price at which the con s u me r
can p urchase the item before the rent-to-own period has ended.

Paula Blair entered into rent-to-own agreem ents wi th Rent-A-Center for an air conditioner i n 2 0 1 5 and f or a used Xbox in 2016. Bl ai r , together w ith two other nam ed plaintiffs, filed a class action com plaint on March 13, 2017,

on behalf o f all individuals who, on or after March 13, 2013, entered into rent-to-own transactions w ith Rent-A-Center in California. T he com

plaint alleged that R ent-A-Center structured its rent-to-own pricing in violation of state law.

I n 1994, the California Legislature enacted the Karne t te Re n t a l-Purchase Act, Cal. Civ. Code §§ 1812.620 et se q

. (“Karnet t e A ct”), to “prohibit unfair or unconscionable

c o nduct toward consum ers” who enter into rent-to-own agreem ents. Id. § 1812.621. The Karnette Act sets statutory

m aximum s for both the “total of p aym ents” a mo un t for installm ent paym ents a n d th e “cash price” for rent-to-own item s. Id. § 1 812.644. These m aximum s are set in proportion to the “docum ented actual cost” of the item s to the lessor/seller. Id. § 1812.622(k).

The operative com

plaint includes claim s under the Karnette Act, as well as the Unfai r Co mp etition Law, Cal. Bus. & Prof. Code § § 17200 et seq. (“UCL”), the Consum ers Legal Rem edies Act, Cal

. Civ. Code §§ 1750 et seq. (“CLRA”), and Cal i fornia’s anti-usury law, Cal. Const. art. XV, § 1(1). P laintiffs seek a “public injunction” on behalf o f the people of California to enjoin future viola t i o n s o f these laws, and to require that Rent-A-Center provide an accounting of m onies obtained from California consum ersB LA I R V

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and individualized notice to those consum ers of th eir statutor y ri ghts. Plaintiffs also seek declaratory relief,

com pensatory dam ages and restitution, and a t t o rneys’ fees and costs.

Of the nam ed plaintiffs, Rent-A-Ce nter has a valid arbitration agreem ent only with Blair, and only with respect to her 2015 air conditioner agreem ent. Bl air opted o ut o f arbitration in her 2016 Xbox agreem ent, and Rent-A-Center has been un able to l o cate signed arbitration agreem ents for either o f the other two n am ed p laintiffs. In June 2017, RentA-Cente r fi l ed a m otion to com pel arbitration of all claim s arising out of Blair’s 2 015 agreem ent, which reads in relevant part:

(B) W hat Claims Are Covered: You and RAC [ Rent-A-Center] agree that, in the event of any dispute or claim between us, either you
or RAC m ay elect to h ave that dispute o r claim re s olved by binding arbitration. This agreem ent to arbitrate is intende d t o be interpreted as broadly as the FAA a llows. Claim s sub

j e c t to arbitration include

. . . c la i m s that are based on any legal theory whatsoever, including

. . . any s t a tute, regulation or ordinance.

. . . (D ) R eq u iremen t of Individual A rb itra tio n : Yo u and R

AC agree that arbitration shall be conducted on an individual basis, and that neither you nor RAC may seek, nor m ay the Arb i trator award, relief that w ould affect R A CB LA I R V

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account h olders other than you. T here will be

no right or authority for any dispute t o be brought, heard, or arbitrated as a class, collective, m ass, private attorney general, o r representative ac t i o n.

. . . If there is a final judicial determ ination that applicable law precludes enforcem ent of this Paragraph’s lim itations as to a particular clai m fo r relief, then that cla im (and only that claim ) m ust be severed from the arbitration and may be brought in court.

The district court concluded that the agr eem ent v iolates Ca lifornia’s McGill rule because it constitutes a waiv e r of Blair’s right t o s eek public injunctive relief in any forum

. The c ourt also held the McGill rule w as not preem pted by the FAA. Relying o n the severance clause at the end o f Paragraph (D), the court held that Blair’s Karnette Act, UCL, and CLRA claim s “m

ust be sev e r e d from the arbitration.” The district court granted Rent-A-Center’s m otion to com pel arbitration of Blair’s u sury claim because California’s usury law “is not am enable to public injunctive relief.”

The district court denied Rent-A-Center’s m otion to stay proceedings o n claim s not sent to arbitration—including th o se of the other two n am ed p laintiffs—p en d in g th e o utco m e of arbitration. It also d elayed ruling on Rent-A-Center’s

m otion to strike class action claim s.

Rent-A-Center appealed the district court’s denial of its

m otion to com

pel arbitration o f Blair’s Karnette Act, UCL, and CLRA claim s. Rent-A-Center also appealed the court’s denial of the m otion to stay proceedings and i t s d e l ay in ruling on the m otion to strike.B LA I R V

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II. The McGill Rule

Several California consum er prote ct ion statutes m ake available the rem edy of a public injunction, which is defined

as “injunctive relief that has the prim ary purpose and effect of prohibiting unlawful acts that threaten future injury to the general public.” McGill
, 393 P.3d at 87. One k ey difference between a private and public injunction is the prim ary beneficiary of the relief. P rivate inj un c t i o ns “resolve a pri vate dispute” between the parties and “rectify individual wrongs,” though they m ay b enefit the gene r a l public inciden t ally. Id. at 89 (internal alterations and citation

om itted). By contrast, p ublic injunctions benefit “the public directly by the elim ination of deceptive practices,” but d o not otherwise b enefit the plaintiff, who “has already been injured, allegedly, by such practices and [is] aware of them .” Id. at 90 (internal citation and quotations om itted).

The California Suprem e Court h eld in McGill th a t an agreem ent to waive the right to s e ek public injunctive relief violates California Civil Code § 3513, which provides that “a law established for a p ublic reason cannot be contravened by

a private agreem ent.” Id. at 93. Under § 3513, a p a rty to a private contract m ay waive a statutory right only if the “statute does not prohibit doing so, the statute’s public benefit is m erely incidental to its prim ary purpose, and waiver does not seriously com

prom ise any public purpose that the statute

was i n tended to serve.” Id. at 94 (internal alterations and citations om itted).

The California Suprem e Court found that p ublic injunctive relief available under the UCL and CLRA, am ong other statutes, is “[b]y definition

. . . prim arily ‘for the benefit

o f the general public.’” Id. (citing Broughton v. Cign aB LA I R V

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Healthplans of Cal.
, 988 P.2d 67 (Cal. 1999); Cr uz v. PacifiCare Health Sys., Inc.
, 6 6 P.3d 1157 (Cal. 2003)). W aiver “of the right to seek p u blic injunctive relief under the se statutes would seriously com prom ise the public purposes the statutes were intended to serve.” Id. Therefore, such waivers are “invalid and unenforceable under California law.” Id.

The contract at issue i n McGill was an arbitration agreem ent waiving the pl a intiff’s right to seek public injunctive relief in arbitration and requiring arbitration of all cla i ms , thereby waiving the plaintiff’s right to seek a public injunction through litigation. Id. at 8 7–88. Because this waiver prevente d th e plaintiff f rom seeking a public injunction in any forum
, it was unenforceab le under California Civil Code § 3513. Id. at 94.

III. FAA Preem

ption

Rent-A-Center argues the di s trict court erred in denying its m otion to com

pel arbitration of Blair’s Karnette Act, UCL, and CLRA claim s, cont e n d ing that the McGill rule is preem pted by the FAA. W e have appellate jurisdiction under 9 U.S.C. § 16(a)(1)(C), which allows an interlocutory appeal of a district court’s denial of a m otion to com pel arbitration. W e review de novo such a denial. Kilgore v. KeyBank, Nat’l Ass’n
, 718 F.3d 1052, 1057 (9th Cir. 2013) (en banc). W e also review de novo a distric t c o urt’s preem ption analysis. AGG Enters. v. Washington Ct y

. , 281 F.3d 1324, 1327 (9th Cir. 2002).B LA I R V

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A. Federal Arbitration Act

The FAA directs courts to treat arbitration agreem ents as “valid, irrevocable, and enforceable, save upon such grounds

as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. The saving clause o f § 2 “perm its agreem ents to arbitrate to be invalidated by g enerally applicable contract defenses, such as fraud, duress, or unconscionability, but not by defenses that apply only to arbitration or that d erive their

m eaning from the fact that an agreem e n t to arbitrate is at iss u e

. ” AT&T Mobility L LC v. Concepcion
, 563 U.S. 333, 339 (2011) (internal quotation om itted). “[T]he saving clause does not save defenses that target arbitration either by nam e
or by m or e s ub tle m ethods, such as by ‘interfer[ing] with fundam ental a t tributes of arbitration.’” Epic Sys. Corp. v. Lewis , 138 S. Ct. 1612, 1 622 (2018) (quoting Concepcion
, 563 U.S. at 344).

The Suprem e C ourt h as describ ed th e F AA as estab l ish ing “a liberal federal policy favoring arbitration agreem ents.” M oses H. Cone Mem’l Hosp. v. Mercury Constr. Co r p

. , 460 U.S. 1
, 24 (1983). While the “FAA contains n o express pre-em ptive provision,” it p reem pts state law “to the e x t e n t that [the state law] stands as an obstacle to the

acc o m p lishm ent and execution of the full purposes and objectives of Congress.” Volt Info. Scis., Inc. v. B d. of Trs. of Leland Stanford Junior Univ.
, 489 U.S. 468, 477 (1989). A state-law rule can be preem pted by the FAA in two ways.

First, a state-law rule is preem pted if it is not a “generally applicable contract defense[]” and so does not fall within the saving clause as a “gro un d []

. . . for the revocation o f any contract.” 9 U.S.C. § 2; Concepcion
, 563 U.S. at 339. A rule is gen e r ally applicable if it “appl[ies] equally to arbitrationB LA I R V

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and non-arbitration agreem ents.” Sakkab v. Luxottica Retail N. Am., Inc.
, 8 03 F.3d 425, 432 (9th Cir. 2015). By contrast,

a rule is not g enerally applicable if it “prohibits outright the arbitration of a particular type o f claim .” Concepcion
, 563 U.S. at 341.

Second, even a generally applicable rule m ay be preem pted if it “stand[s] as an obstacle to the accom plishm ent of the FAA’s objectives.” Id. An “ove r a r ch ing purpose o f the FAA

. . . is to ensure the enforcem ent of arbitration agreem ents according to their term s so as to facilitate stream lined proceedings

. ” Id. A s the Suprem e Court recently restated, “[t]he general applicability o f [ a] ru le [ d o es] not save it from preem

ption under the FAA” if the rule “interf eres w ith f undam ental attributes of arb itratio n

. ” L a m p s Plus, Inc. v. Varela
, 139 S. Ct. 1407, 1418 (2019) (citing Concepcion , 563 U.S. at 344). 2

B. C o ncepcion and Sakkab

The Suprem e Court’s d ecision in Co n cepcion and our dec ision in Sakkab guide our analysis. Indeed, our decision in Sakkab all but decides this case.

In Concepcion
, the Suprem e Court considered whether the FAA preem

pted Calif o rn ia’s D isco ver B a n k ru le that class waivers in m ost consum er arbitration agreem ents were unconscionable under California law. See Discover Bank v.

2 The parties filed n o tices of supplem ental authority pursuant to Fe d e ra l Rule of Appellate Procedure 28(j) inform ing this court of the Suprem e Court’s decision in Lamps Plus
, which was published after oral argum ent in t

his case. W e have review e d th e Suprem e Court’s decision and considered it in our analysis.B LA I R V

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Superior Court
, 113 P.3d 1100 (Cal. 2005). The Co urt recognized that unconscionability is “a doctrine norm ally thought to be generally applicable.” Concepcion
, 5 63 U.S. at 341. The Court nonetheless held the Discover Ba n k rule

wa s preem

pted because it “interfere[d] with fundam ent al attributes o f arbitration and thus create[d] a schem e inconsistent with the FAA.” Id. at 344. Ac c or d in g to the Court, “the switch from bilateral to class arbitration sacrifices the principal advantage of arbitration—its inform ality—and

ma k e s the p rocess slower, m ore costly, and m ore likely to generate procedural m orass than final judgm ent.” Id. at 348. The Court recognized that “class arbitration requires procedural form ality” because if “procedures a r e too inform al, absent class m em b ers would n ot be boun d b y the arbitration”—that is, due p rocess comp els procedural

com plexity i n class arbitration. Id. at 349 (em phasis in original). The C ourt noted that “cl a ss arbitration greatly increases risks to d ef

en d ants” b ecau se i t co m

b ines high stakes with lim ited appel l a t e r ev iew. Id. at 3 50–51. The Court concluded that classwide arbitration is therefore “no t arbitration as envisioned b y the FAA” and “lacks its benefits.” Id. at 351.

In the wake of C

oncepci o n , we considered in Sakkab whether the FAA preem

pts California’s Iskanian rule, which bars contractual waiver in any fora of representative claim s under C alifornia’s Private Attorneys G eneral Act o f 2004 (“PAGA” )
, Cal. Lab. C ode §§ 2 698 et seq. See Sakkab
, 803 F.3d at 427; Iskanian v. CLS Transp. L.A., L LC
, 327 P.3d 129 (Cal. 2014). PAGA “authorizes an em ployee to bring an action for civil penalties on behalf of the state against his o r her em ployer for Labor Code violations commi tted against th e e m p loyee and fellow em

ployees, with m ost of theB LA I R V

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proceeds of that litigation g oing to the state.” Iskanian
, 327 P.3d at 133.

W e concluded that the Iskanian rule is g enerally appli c able because it “bars any w aiver of PAGA claim s, regardless of whether the waiver appears in a n arbitration agreem ent or a non-arbitration agreem ent.” Sakkab
, 8 03 F.3d at 432. W e also noted that the ru l e does not “prohibit the arbitration of any type o f claim .” Id. at 434. W e recognized that although the purpose of the FAA is “to ensu r e th at private arbitration agreem ents are enforced according to their term s,” the saving clause o f § 2 wo u l d be rendered “wholly ineffectual” if that purpose overr o d e all state-law contract defenses. Id. (internal quotations and citations om it ted). Instead, “Congress plainly

. . . intend[ed] to preem pt

. . . only th ose [state contract defenses] that ‘interfere[] wi th arbitration.’” Id. (quoting Concepcion , 563 U.S. at 346).

W e held th e Iskanian rule does not interfere with arbitration. Id. at 43 5

. Most im portant, the Iskanian rule does “not diminish p arties’ freedom to select inform al arbitration procedures.” I d. PAGA actions, unlike class actions, d o not “resolve[] the claim s of other em ployees,” so “there is n o need to protect absent em ployees’ due process rights in P AGA arbitrations.” Id. at 436. Nor d o es California state law “purport[] to li m it parties’ right to use inform al procedures, including lim ited disc overy.” Id. at 438–39. Finally, while PAGA actions “m ay

. . . involve high stakes” due to “hefty civil penal t i e s,” the FAA does not preem pt

causes of action m erely b ecause they im pose substantial l i ab i lity. Id. at 437. W e concluded that “the Iskanian rule does not conflict with the FAA, because it leaves p arties free to adopt the kinds of inform al procedures norm ally available in arbitration.” Id. at 439.B LA I R V

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C. Discussion

1. Generally Applicable Contract Defense

Th e M c Gill rule, like the Iskanian rule, is a general l y applicable contract defense. The California Suprem e Court specified that a waiver of public inj un c t ive relief in “ a ny contract—ev e n a c o n tra c t tha t ha s n o a r b i tr a ti o n provision”—is “unenforceable under California law.” McGill
, 3 93 P .3d at 9 4 (em phasis in o r ig i n a l )

. The McGill rule thus applies “equally to arbitr a t ion and non-arbitration agreem ents.” Sakkab , 803 F.3d at 432.

Rent-A-Center argues that the McGill rule is equivalent to an earlier and now-preemp t e d California rule called the Broughton-Cruz rule. See Broughton
, 988 P.2d 67; Cruz , 66 P.3d 1157. The Broughton-Cruz rule had established that “[a]greem ents to arb i tr ate claim s f or public injunctive relief

. . . are not enforceable in California.” McGill
, 393 P.3d at 9 0. We held in Ferguson v. Corinthian Colleges, Inc.
, 733 F.3d 928, 934 (9th Ci r. 2013), that the FAA preem pted the Br oughton-Cruz rule because it “prohibits outright” the arbitration of public injunctive relief. The McGill rule bears

no resem blance to the Broughton-Cruz rule. It shows no hostility to, and d o e s not prohibit, the arbitration of public injunctions. It m erely prohibits the waiver of the right to pursue p ublic injunctive relief in any forum ; the BroughtonCruz rule specifically excluded public injunctive claim s from arbitration.

The McGill rule is also unlike the rule at issue in Kindred Nursing Centers Ltd. Partnership v. Clark
, 137 S

. Ct. 1421 (2017). In that case, the S uprem e Court struck down a judgem ade K entucky rule that an agent wi th general power o fB LA I R V

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attorney could not w aive a princi p a l’ s right to a jury trial without explicit consent of the p rincipa l

. I d. at 1425. The rule had been invoked to invalidate two arbitration agreem ents. Id. Though the rule did not explicitly f o r b i d the arbitration of claim s, the C ourt held that “a leg a l rule hinging on the prim ary characteristic of an arbitration agreem ent—nam ely, a waiver of the right to go to court and receive a jury tr ial”—im

perm issibly targets arbitration. Id. at 1427. Unlike the Kentucky rule, the McGill rule d oes not “rely o n the uniqueness o f an agreem ent to arbitrate” to categorically disfavor arbitration as a forum

. See id. at 1426 (quoting Concepcion
, 563 U.S. at 341). To the contrary, the McGill rule expresses no preference as to wh e ther public injunction claim s are litigated or arbitrated, i t me rely prohibits the waiver of the right to pursue those claim s in any forum

.
Moreover, the Court in Kindred noted that the underlying principle behind the Kentucky rule—that an agent cannot waive a principal’s “fundam ental constitutional right ” without express consent—had never b een applied outside the context o f arb i tration. Id. at 1427–28. B y contrast, the McGil l rule derives f

rom a general and long-standing prohibition on the private contractual waiver of public rights. California courts have repeatedly invoked California Civil Code § 3 513 to invalidate waivers unrelated to arbitration. See, e.g. , County of Riverside v. S up erior Court
, 42 P.3d 1034, 10 4 2 (Cal. 2002) (holding that a police officer’s “blanket waiver” o f his rights under the Public Safety Officers Procedural Bill of Rights Act as a c o n dition of his

em ploym ent would be inconsistent with § 3513); C ovino v. Govern i ng Bd.
, 142 Cal. Rptr. 812, 817 (Ct. App. 1 977) (invalidating under § 3 513 a teacher’s waiver of h i s r i ght under the E ducation Code to becom e a contract, r a ther thanB LA I R V

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tem porary, em

ployee); Benane v. Int’l Harv es ter Co.
, 299 P .2d 750, 753 (Cal. Ct. App. 1956) (invalidating under § 3513 a collective bargaining agreem ent provision waiving

em ployees’ rights under the Election Code to be paid for tim e taken off work to vote); De Ha viland v. Warner Bros. Pictures
, 1 53 P.2d 983, 988 (Ca l. Ct. App. 1 944) (invalidating under § 3513 a m ovie star’s contractual waiver of the Labo r Code’s seven-year lim it on personal service contracts); Cal. Powder Works v. A tl. & Pac. R.R. Co.
, 45 P. 6 91
, 6 9 3 (Cal. 1896) (relying o n § 3513 to construe a
comm on carrier’s contractual e x em ption from liability to exclude liability caused by the carrier’s n e g l ig ence because that liability is “im posed upon it by law”).

In sum , the McGill rule is a generally applicable contract d efense d erived f

rom long-established California publ ic policy. It is a “groun d []

. . . for the revocation of any contract” and falls within the FAA’s saving clause at the first step of the preemption analysis. 9 U.S.C. § 2.

2. Interference with Arbitration

“[A] d o ctrine norm ally thought to be gene r a lly applicable” is nonetheless preem pted by the FAA if it “stand[s] as an obstacle to the accom plishm ent of the FAA’s objectives.” Conce

pcion , 563 U.S. at 341, 343. One objective of the FAA is to enforce arbitration agreem ents according to their term s “so as to facilitate stream lined proceedings.” Id. at 344. Howev er , we “do not read Concepcion to require the enforcem ent of all waivers o f representative claim s in arbitration agreem ents.” Sa k k ab
, 803 F.3d at 436. Instead, “Congress plainly

. . . intend[ed] to preem pt

. . . only those [state contract defenses] that ‘interfere[] with arbitration.’” Id. at 434 (quotingB LA I R V

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Concepcion
, 563 U.S. at 346). Accordingly, we look at “whether refusing to enforce wa i v e r s ” of a claim that is “technically denom inated” as representative “will deprive parties of the benefits of arbitration.” Id. at 436.

Our decision in Sakkab is squarely on point. The McGill rule, like the Iskanian rule, d oes not “deprive parties of the benefits of arbitration.” Se e id. This characteristic distinguishes b oth rules from the Discover Bank rule barring the wa iv e r of class actions at issue in Concepcion

. A m ajor

concern in C

oncepcion was that com pelling classwide arbitration “ requires procedural form ality,” and, in so doing, “m akes the process slower, m ore c o st ly, and m ore likely to g e n e r a t e p r o c e dur a l mo r a s s t h a n f i n a l j u d g me n t

. ” Concepcion
, 563 U.S. at 348–49. By contrast, ne i th e r state law nor constitutional due process gives r i s e t o , let alone

“ requires [,] p rocedural form ality” in the arbitration of public injunctive relief.

Public injunctive relief under the Karnette Act, UCL, and CLRA does not require form alities inconsistent with

arb i tration. In McGill
, the California Suprem e Court expressly held that claim s for public injunctive relief n eed not

com ply w ith state-law class pr ocedures. McGill
, 393 P.3d at 93. W e are bound by this ruling. See Hemmings v. Tidyman’s Inc.
, 285 F.3d 1174, 1203 (9th Cir. 2002). Nor doe s constitutional due process require unusual procedures inconsistent with arbitration. In Sakkab
, we held that the d ue process rights of absent em ployees are not im

plicated by the arbitration of a PAGA claim because the claim is brought on b ehalf of the state, which is the “real part[y] in interest.” Sakkab
, 803 F .3d at 436

. The sm all p ortion of a PAGA penalty distributed to em

ployees is incidental to the statute’s p ublic enforcem ent purpose and effect. S im ilarly, here
,B LA I R V

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public injunct i o n claim s are brought f or the benefit of the general public, not on behalf of specific absent parties.

Crucially, arbitration of a public injunction d o es not interfere with the bilateral nature of a typica l c on s um er arbitration. The rules struck down in Concep c i o n a nd Epic Syste ms “im

perm issibly disfavor[ed] arbitration” because they rendered an agreem ent “unenforceable just becaus e i t require[d] b ilateral arbitration.” Epic Systems
, 138 S. Ct. at 1623 (em

phasis rem oved). The McGill rule does no such thing. The McGill rule leaves undisturbed an agreem ent that both requires b ilateral arbitration and perm its p ublic injunctive claim s. A plaintiff requesting a public injunction files the lawsuit “on his or her own behalf” and retains sole control over the suit. McGill
, 393 P.3d at 92. Nothing in the McGill rule requires a “switch from bilateral

. . . arbitration” to a multi-party action. Concepcion , 563 U.S. at 348.

It is possible that arbitration of a public injunction will in

som e cases be m ore com p lex than arb itration of a conventional individual action or a representati v e PAGA claim

. But as with PAGA actions, the com plexity involved in resolving a request f

or a public injunction “flows from the substance of the claim itsel f, r a ther than any procedures required to adjudicate it (as with class actions).” Sakkab
, 803 F .3d at 438. The d istinctio n b e tween substantive and procedural com

p lexity is relevant to the preem ption analysis because the Court found in Concepcion that classwide arbitration’s “procedural form ality” fru strated the FAA’s objective of ensuring speedy, cost-effective, and inform al arbitration. Concepcion
, 563 U.S. at 348–49. But “potential

com plexity should n ot suffice to ward off arb i tr a t ion” o f substantively com

plex claim s. Mitsubishi Moto rs C orp. v. Soler Chrysler-Plymouth, Inc.
, 473 U.S. 614, 633 (1985). AB LA I R V

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state-law rule that preserves the ri g h t t o pursue a substantively com

plex c laim in arb itratio n without m andating procedural com

plexity does not frustrate th e FAA’s objectives.

One theoretical distinction between arbitrating PAGA claim s and arbitrating public injunctive claim s is the potential for m ultiple injunctions against the sam e defendant im posing conflic ting obligations, a scenario without an obvious analogue in the PAGA context. These concern s are conjectural and unpersuasive. We a r e unaware of a single such conflict in the decades public injunctive relief h as been available in California courts. Even assum ing such conflicts

are (for som e unidentified reason) imm inent in the arb i tral forum
, the d efendant can always inform the arbitrator of its existing obligations. W e s e e no reason to b elieve that an arbitrator would then im

pose an irreconcilable obligation on the defendant. Nor would com plex procedures be needed to avoid such conflicts: the defendant need sim ply tell the arbitrator. If the initial proceedings were c o nfidential, the defendant co u l d
, to the extent necessary, obtain perm ission from the earlier arbitrator to m ake such a lim ited disclosure.

Ongoing injunctions som etim es need m onitori ng o r

m odification. The need for m o nitoring and m odification is inherent in all injunctive relief, public and private, and such

m onitoring and m odification is not incom p a t ib le with inform al arbitration. Arbitrators have long had the authority and ability to address requests for injunctive relief wi th in bilateral arbitration. S

ee AAA Comm ercial Arbitration Rule 4 7(a) (“The arbitrator m ay grant any rem edy or r e lief that th e a r

bitrator deem s just and equitable and within the

sco p e o f the agreem ent of the parties[.]”). W e are not concerned that arbitrating public injunctions would produceB LA I R V

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procedural com

plexities n ot alre a dy comm on to the arbitration of private injunctions.

Nor are public injunctions unique b ecause of the need to weigh the p ublic interest in deciding whether t o g r ant an injunction. Judges and arbitrators routinely consider the public interest when issuing pr i v a te injunctions. See, e.g. , Sw. Voter Reg. Educ. Project v. S helley
, 344 F.3d 914, 917 (9th Cir. 2 003) (en banc) (“The district court m ust also consider whether th e p ublic interest f avors issuance of the injunction”). Injunctive relief in a nt itrust actions, for

exam p le, requires “reconciliation between the public interest and priva t e n e e ds as well as between com peting private claim s.” S

ee California v. Am. S

tores Co.
, 495 U.S. 271, 284 (1990).

Rent-A-Center’s contention that arbitration of a public injunction requires expansive d iscovery and presentation o f class-wide evidence is m istaken. W e are unconvinced by Rent-A-Center’s suggestion that under Cisneros v. U.D. Registry, Inc.
, 46 Cal. Rptr. 2d 233 (Ct. App. 1995), a public injunction claim “dem ands class-wide evidence.” That case

m erely stan d s for the unrem arkable notion that evidence o f “sim ilar practices involving other m em bers of the public who

are not p arties to the action” m ay be relevant to and adm issibl e t o s upport a p ublic injunction claim

. Id. at 244. The Court of Appeal said nothing about the discoverability o f such evidence, nor did it lim it parties’ ability to agree ex ante on the scope of discovery.

The parties rem ain free to reasonably lim it b y e x ante agreem ent d iscovery and p resentation of evid en ce, as they

m ay with any other arbitrable claim

. Rent-A-Center chose to

om it any such provision from the 2015 air conditionerB LA I R V

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agreem ent, and, in the absence of such an agreem ent, the breadth o f discovery in a public injunctive action, as in a PAGA a c t i on, “flows from the substance of the claim itself, rather than any procedures required to adjudicate it.” Sakkab
, 803 F. 3d at 438. Such is the case in the antitrust context as well, and, as we know, antitrust claim s are un questionably arbitrable. S

ee Mitsubishi Motors Corp.
, 473 U.S. at 628–40.

Finally, a public injunction m ay involve high stakes and could affect a lucr a ti ve business practice. But so could a private injunctive, d eclaratory, or d am ages action. As we explained in S

a k k a b
, “the FAA would not preem pt a state statutory cause of action that imp o s ed substantial liability

m erely because the action’s high stakes w ould arguably m ake it poorly suited to arbitra tion.” Sakkab
, 803 F.3d at 437 (citing Medtronic, Inc. v. Lohr
, 518 U.S. 4 70, 485 (1996)). Where a public inj unction does not interfere with the inform al, bilateral nature of traditional consum er arbitration, high stakes alone do not warrant FAA preemption.

As w e recognized in Sakkab
, arbitration is “[i]n m any ways

. . . well suited to resolving com p lex disputes, provided that the parties are f

ree to decide how the arbitration will be conducted.” Id. at 438. Like the Iskanian rule, the McGill rul e does not “m andate procedures that interfere with arbitration.” See id. Arbitration of public injunctive relief accordingly n e e d n ot “sacrifice[] the principal advantage o f arbitrat i on—its inform ality.” See C oncepcion , 563 U.S. at 348. W e h old that the FAA does not preem pt the McGill rule.B LA I R V

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IV. Construction of the Arbitration Agreem ent
Having concluded that the F AA does not pree mp t the McGill rule, we now turn to the 2 015 air conditioner agreem ent itself to determ ine its scope and effect. Rent-ACenter contends that the agreem ent requires Bl air to subm it her Karnette Act, UCL, and CLRA claim s to arbitrati o n for determ ination of liability. According to Rent-A-Center, only aft e r the arbitrator has determ ined liability can Blair go to court to seek the rem edy o f a public injunction. 3 We disagree.

The severance clause in the 2015 agreem ent instructs us to sever Blair’s Karnette Act, UCL, and CLRA cl ai ms fr om the scope o f a r

bitration, and to perm it such claim s to be brought in court. The clause reads:

I f there is a final judicial determ ination th at

app l icable law precludes enforcem ent of this Paragraph’s lim itations as to a particular claim for relief, then that claim (and only that claim ) m ust be severed from the arbitration and m ay be brought in court.

The s e v erance clause is triggered by the McGill rule. Paragraph (D) of the agreem ent prohibits the arbitrator from awarding “relief that would affect RAC account holders other than you,” and elim inates any “right o r authority for any

3 Rent-A-Center a l t ernatively argues t hat the McGill rule does not apply because Blair’s re quested relief does n ot am ount to a public injunction. Not so. Blair seeks to enjoin future v iolations of California’s

c o n s u m er protection statutes, relief oriented to and for the b enefit of th e general public.B LA I R V

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dispute to be b r o u ght, h eard, o r arbitrated as a class, collective, m ass, private attorney gener a l
, or representative action.” Paragraph (D) thus precludes the arbitrator from awarding public injunctive relief. Paragrap h ( B) of the agreem ent perm its Rent-A-Center to dem and that all disputes be resolved in arbitration, which precludes Blair f ro m seeking public injunctive relief in court. Read together, P aragraphs (B) and (D) waive Blair’s right to seek a public injunction “in any forum .” McGi ll
, 39 3 P.3d at 87. The McGill rule is “applicable law” that “precludes enforcem ent” of Paragraph (D)’s lim itations as to Blair’s Karnette Act, UCL, and CLRA claim s.

Rent-A-Center contends that the severance clause carves out only th e po tential public injunctive rem edy for these

causes of action, requiring the arbitrator to adjudicate liability first. Rent-A-Center reads “claim for relief” in the severance clause to refer on l y t o a p articular rem edy, not to the underlying claim

. The d istrict court found Rent-A-Center’s reading “unnatural and unpersuasive,” and we agree. Parties

are welcom e to agree to split decisionm aking between a court and an arbitrator in thi s m anner. C f. Ferguson
, 733 F.3d at 937. But they did not do so here.

The severance c laus e refers to “a particular claim for relief,” but it then goes on to require, a few words later in the

sam e sentence, severance o f “that claim ” from the arbitration in o rder to allow it to “be brought in court.” A “claim for relief,” as that term is ordinarily used, is synonym o u s with “claim ” o r “cause of action.” See, e.g. , Fed. R. Ci v

. P. 8 ( a ) (interchangeably using “claim ” and “claim for relief, ” and using “dem and f

or relief sought” to refer specifically to requested rem edy); Claim
, Black’s L aw Dictionary (10th ed. 2 01 4 ) (noting that a “claim ” is “[a]lso term ed claim fo rB LA I R V

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relief”); Claim for relief

, Black ’ s Law Dictionary (10th ed. 2014) (referencing definition for “claim ”); In re Ocwen Loan Se rv

. , LLC Mortg. Serv. Litig.
, 4 9 1 F.3d 638, 646 (7th Cir. 2 0 07) (“The eighth claim is purely rem edial; it se ek s injunctive relief. Of course it is no t a c l a i m, that is, a cause of action, and should not have been labeled as su c h

. . . .”); Cannon v. Wells Fargo Bank N.A.
, 9 1 7 F. Supp. 2 d 1025, 1031 (N.D. C al. 2 0 1 3 ) (“[E]quitable relief is not a claim for relief but rather only a rem edy.”). W e read the clause, as did the district court, to provide th a t th e entire claim be severed for judicial determ ination.

V . Other Issues

The district court refused to im pose either a m andatory o r d iscretionary stay on the non-arbitrable claim s pendi n g arbitration of Blair’s usury claim

. W e h ave jurisdiction under 9 U.S.C. § 16(a)(1)(A) to review the denial of a m andatory stay, which is a ques t i o n of law that we review de novo. Under 9 U.S.C. § 3, a district court m ust stay p roceedings for claim s an d issues “referable to arbitratio n ” p en d in g r eso lutio n of th e arbitration. S

ee Leyva v. Certified Grocers of Cal., Ltd.
, 593 F.2d 857, 863 (9th Cir. 1979). O nly the usury claim

was “referable to arbitration,” so Rent-A-Center wa s n o t entitled to a stay under § 3 for any o f the o ther claim s. See id. W e affirm

the district court’s ruling.

We lack jurisdiction to review the district court’s denial of a d iscretionary stay. S ee Portland Gen. Elec. C o. v. Liberty Mut. Ins. Co.
, 862 F.3d 981, 9 86 (9th Cir. 2017). Our appellate jurisdiction under the FAA o v e r interlocutory appeals is lim ited to the orders listed in 9 U.S.C. § 16(a)(1). Kum Tat Ltd. v. Linden Ox Pasture, L LC
, 845 F.3d 979, 982 (9th Cir. 2017). Relevant here, appellate jurisdiction extendsB LA I R V

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to orders “refusing a stay of any action under section 3 o f this title.” 9 U.S.C. § 16(a)(1)(A). A discretionary stay is based

on the district court’s inherent authority to m anage its docket and is not “a stay

. . . under section 3” of the FAA. S e e Portland Gen. Elec. C

o. , 862 F.3d at 984. The e xceptions that, at tim es, justify extension of appellate jurisdiction over the imposition of a discretionary stay do n o t apply to the denial of a stay. Cf. Depen d a bl e Hi ghways Exp. Inc. v. Navigators Ins. Co.
, 498 F.3d 1059, 1063–64 (9th Cir. 2007).

W e also lack jurisdiction to review the d istrict court’s decision to defer ruling o n R ent-A-Center’s m otion to strike becaus e i t is a non-final order not covered by one of the categories set f

orth in 9 U.S.C. § 16(a)(1)(A). See Kum Tat Ltd. , 845 F.3d at 982.

Conclusion

The district court’s denials of Rent-A-Center’s m otion to

com pel arbitration and m otion for a m andatory stay are AFFIRMED

.

Rent-A-Center’s appeals of th e district court’s denial o f

a discretionary stay and d eferral on the m otion to strike class claim s are DISMISSED for lack of jurisdiction.