FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PAULA L. BLAIR; ANDREA

ROBINSON; HARRIS A. FALECHIA,

Plaintiffs-Appellees,

v.

RENT-A-CENTER, INC., a Delaware

corporation; RENT-A-CENTER WEST,

INC., a Delaware corporation,

Defendants-Appellants.

No. 17-17221

D.C. No.

3:17-cv-02335-

WHA

OPINION

Appeal from the United States District Court

for the Northern District of California

William Alsup, District Judge, Presiding

Argued and Submitted February 12, 2019

San Francisco, California

Filed June 28, 2019

Before: M. Margaret McKeown, William A. Fletcher,

and Mary H. Murguia, Circuit Judges.

Opinion by Judge W. Fletcher
2 BLAIR V. RENT-A-CENTER

SUMMARY*

Arbitration / Preemption

The panel affirmed the district court’s denial of Rent-ACenter’s motion to compel arbitration and motion for a

mandatory stay in a putative class action alleging Rent-ACenter charged excessive prices; and dismissed for lack of

jurisdiction Rent-A-Center’s appeals of the district court’s

denial of a discretionary stay and deferral on the motion to

strike class claims.

In McGill v. Citibank, N.A., 393 P.3d 85 (Cal. 2017), the

California Supreme Court held that a contractual agreement

purporting to waive a party’s right to seek public injunctive

relief in any forum was unenforceable under California law. 

The panel held that the Federal Arbitration Act does not

preempt California’s McGill rule.

Turning to the parties’ 2015 rent-to-own agreement for an

air conditioner, the panel held that its severance clause, which

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

Unfair Competition Law, and Consumer Legal Remedies Act

claims from the scope of arbitration, was triggered by the

McGill rule. The panel further held that the severance clause

permitted such claims to be brought in court.

The panel affirmed the district court’s refusal to impose

either a mandatory or discretionary stay on the non-arbitrable

claims pending arbitration of plaintiff’s usury claim. 

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
BLAIR V. RENT-A-CENTER 3

The panel held that it lacked jurisdiction to review the

district court’s denial of a discretionary stay because

appellate jurisdiction under the Federal Arbitration Act over

interlocutory appeals is limited 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 manage its

docket was not a stay under section 3 of the Federal

Arbitration Act, and the exceptions that might justify

extension of appellate jurisdiction did not apply to the

denial of a stay. The panel also held that it lacked

jurisdiction to review the district court’s decision to defer

ruling on Rent-A-Center’s motion to strike because it was a

non-final appealable order not covered by one of the

categories set forth in 9 U.S.C. § 16(a)(1)(A).

COUNSEL

Robert F. Friedman (argued) and Vicki L. Gillete, Littler

Mendelson P.C., Dallas, Texas; Gregory G. Iskander, Littler

Mendelson P.C., Walnut Creek, California; Kaitlyn M.

Burke, Littler Mendelson P.C., Las Vegas, Nevada; Kirsten

F. Gallacher and Vickie Turner, Wilson Turner Kosmo LLP,

San Diego, California; Lily A. North and Henry J. Escher III,

Dechert LLP, San Francisco, California; Christina Sarchio,

Dechert LLP, Washington, D.C.; for Defendants-Appellants.

Michael Rubin (argued) and Eric P. Brown, Altshuler Berzon

LLP, San Francisco, California; Zach P. Dostart and James T.

Hannink, Dostart Hannink & Coveneny LLP, La Jolla,

California; for Plaintiffs-Appellees.
4 BLAIR V. RENT-A-CENTER

OPINION

W. FLETCHER, Circuit Judge:

In McGill v. Citibank, N.A., 393 P.3d 85 (Cal. 2017), the

California Supreme Court decided that a contractual

agreement purporting to waive a party’s right to seek public

injunctive relief in any forum is unenforceable under

California law. We are asked to decide in this case whether

the Federal Arbitration Act (“FAA”) preempts California’s

McGill rule.1

 We hold it does not.

Plaintiffs brought a putative class action alleging that

defendants Rent-A-Center,Inc. andRent-A-Center West,Inc.

(collectively, “Rent-A-Center”) charged excessive prices for

its rent-to-own plans for household items. We affirm the

district court’s partial denial of Rent-A-Center’s motion to

compel arbitration. We also affirm the district court’s denial

of Rent-A-Center’s motion for a mandatory stay of plaintiffs’

non-arbitrable claims. Finally, we dismiss for lack of

jurisdiction Rent-A-Center’s appeal of the district court’s

denial of a discretionary stay and its decision to defer ruling

on a motion to strike class action claims.

I. Factual and Procedural Background

Rent-A-Center operates stores that rent household items

to consumers for set installment payments. If all payments

1 This panel received briefing and heard argument in two additional

cases raising this same question: McArdle v. AT&T Mobility LLC (No.

17-17221) and Tillage v. Comcast Corp. (No. 18-15288). Those cases are

resolved in separate memorandum dispositions filed simultaneously with

this opinion.
BLAIR V. RENT-A-CENTER 5

are made on time, the consumer takes ownership of the item. 

Rent-A-Center also sets a cash price at which the consumer

can purchase the item before the rent-to-own period has

ended.

Paula Blair entered into rent-to-own agreements with

Rent-A-Center for an air conditioner in 2015 and for a used

Xbox in 2016. Blair, together with two other named

plaintiffs, filed a class action complaint on March 13, 2017,

on behalf of all individuals who, on or after March 13, 2013,

entered into rent-to-own transactions with Rent-A-Center in

California. The complaint alleged that Rent-A-Center

structured its rent-to-own pricing in violation of state law.

In 1994, the California Legislature enacted the Karnette

Rental-Purchase Act, Cal. Civ. Code §§ 1812.620 et seq.

(“Karnette Act”), to “prohibit unfair or unconscionable

conduct toward consumers” who enter into rent-to-own

agreements. Id. § 1812.621. The Karnette Act sets statutory

maximums for both the “total of payments” amount for

installment payments and the “cash price” for rent-to-own

items. Id. § 1812.644. These maximums are set in

proportion to the “documented actual cost” of the items to the

lessor/seller. Id. § 1812.622(k).

The operative complaint includes claims under the

Karnette Act, as well as the Unfair Competition Law, Cal.

Bus. & Prof. Code §§ 17200 et seq. (“UCL”), the Consumers

Legal Remedies Act, Cal. Civ. Code §§ 1750 et seq.

(“CLRA”), and California’s anti-usury law, Cal. Const. art.

XV, § 1(1). Plaintiffs seek a “public injunction” on behalf of

the people of California to enjoin future violations of these

laws, and to require that Rent-A-Center provide an

accounting of monies obtained from California consumers
6 BLAIR V. RENT-A-CENTER

and individualized notice to those consumers of their

statutory rights. Plaintiffs also seek declaratory relief,

compensatory damages and restitution, and attorneys’ fees

and costs.

Of the named plaintiffs, Rent-A-Center has a valid

arbitration agreement only with Blair, and only with respect

to her 2015 air conditioner agreement. Blair opted out of

arbitration in her 2016 Xbox agreement, and Rent-A-Center

has been unable to locate signed arbitration agreements for

either of the other two named plaintiffs. In June 2017, RentA-Center filed a motion to compel arbitration of all claims

arising out of Blair’s 2015 agreement, which reads in relevant

part:

(B) What 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 may elect to have that dispute or

claim resolved by binding arbitration. This

agreement to arbitrate is intended to be

interpreted as broadly as the FAA allows. 

Claims subject to arbitration include . . .

claims that are based on any legal theory

whatsoever, including . . . any statute,

regulation or ordinance.

. . .

(D)Requirement of Individual Arbitration:

You and RAC agree that arbitration shall be

conducted on an individual basis, and that

neither you nor RAC may seek, nor may the

Arbitrator award, relief that would affect RAC
BLAIR V. RENT-A-CENTER 7

account holders other than you. There will be

no right or authority for any dispute to be

brought, heard, or arbitrated as a class,

collective, mass, private attorney general, or

representative action. . . . If there is a final

judicial determination that applicable law

precludes enforcement of this Paragraph’s

limitations as to a particular claim for relief,

then that claim (and only that claim) must be

severed from the arbitration and may be

brought in court.

The district court concluded that the agreement violates

California’s McGill rule because it constitutes a waiver of

Blair’s right to seek public injunctive relief in any forum. 

The court also held the McGill rule was not preempted by

the FAA. Relying on the severance clause at the end of

Paragraph (D), the court held that Blair’s Karnette Act, UCL,

and CLRA claims “must be severed from the arbitration.” 

The district court granted Rent-A-Center’s motion to compel

arbitration of Blair’s usury claim because California’s usury

law “is not amenable to public injunctive relief.”

The district court denied Rent-A-Center’s motion to stay

proceedings on claims not sent to arbitration—including

those of the other two named plaintiffs—pending the outcome

of arbitration. It also delayed ruling on Rent-A-Center’s

motion to strike class action claims.

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

motion to compel arbitration of Blair’s Karnette Act, UCL,

and CLRA claims. Rent-A-Center also appealed the court’s

denial of the motion to stay proceedings and its delay in

ruling on the motion to strike.
8 BLAIR V. RENT-A-CENTER

II. The McGill Rule

Several California consumer protection statutes make

available the remedy of a public injunction, which is defined

as “injunctive relief that has the primary purpose and effect

of prohibiting unlawful acts that threaten future injury to the

general public.” McGill, 393 P.3d at 87. One key difference

between a private and public injunction is the primary

beneficiary of the relief. Private injunctions “resolve a

private dispute” between the parties and “rectify individual

wrongs,” though they may benefit the general public

incidentally. Id. at 89 (internal alterations and citation

omitted). By contrast, public injunctions benefit “the public

directly by the elimination of deceptive practices,” but do not

otherwise benefit the plaintiff, who “has already been injured,

allegedly, by such practices and [is] aware of them.” Id. at 90

(internal citation and quotations omitted).

The California Supreme Court held in McGill that an

agreement to waive the right to seek public injunctive relief

violates California Civil Code § 3513, which provides that “a

law established for a public reason cannot be contravened by

a private agreement.” Id. at 93. Under § 3513, a party to a

private contract may waive a statutory right only if the

“statute does not prohibit doing so, the statute’s public benefit

is merely incidental to its primary purpose, and waiver does

not seriously compromise any public purpose that the statute

was intended to serve.” Id. at 94 (internal alterations and

citations omitted).

The California Supreme Court found that public

injunctive relief available under the UCL and CLRA, among

other statutes, is “[b]y definition . . . primarily ‘for the benefit

of the general public.’” Id. (citing Broughton v. Cigna
BLAIR V. RENT-A-CENTER 9

Healthplans of Cal., 988 P.2d 67 (Cal. 1999); Cruz v.

PacifiCare Health Sys., Inc., 66 P.3d 1157 (Cal. 2003)). 

Waiver “of the right to seek public injunctive relief under

these statutes would seriously compromise 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 in McGill was an arbitration

agreement waiving the plaintiff’s right to seek public

injunctive relief in arbitration and requiring arbitration of all

claims, thereby waiving the plaintiff’s right to seek a public

injunction through litigation. Id. at 87–88. Because this

waiver prevented the plaintiff from seeking a public

injunction in any forum, it was unenforceable under

California Civil Code § 3513. Id. at 94.

III. FAA Preemption

Rent-A-Center argues the district court erred in denying

its motion to compel arbitration of Blair’s Karnette Act, UCL,

and CLRA claims, contending that the McGill rule is

preempted by the FAA. We 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 motion to compel arbitration. 

We review de novo such a denial. Kilgore v. KeyBank, Nat’l

Ass’n, 718 F.3d 1052, 1057 (9th Cir. 2013) (en banc). We

also review de novo a district court’s preemption analysis. 

AGG Enters. v. Washington Cty., 281 F.3d 1324, 1327 (9th

Cir. 2002).
10 BLAIR V. RENT-A-CENTER

A. Federal Arbitration Act

The FAA directs courts to treat arbitration agreements 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 of § 2 “permits agreements

to arbitrate to be invalidated by generally applicable contract

defenses, such as fraud, duress, or unconscionability, but not

by defenses that apply only to arbitration or that derive their

meaning from the fact that an agreement to arbitrate is at

issue.” AT&T Mobility LLC v. Concepcion, 563 U.S. 333,

339 (2011) (internal quotation omitted). “[T]he saving clause

does not save defenses that target arbitration either by name

or by more subtle methods, such as by ‘interfer[ing] with

fundamental attributes of arbitration.’” Epic Sys. Corp. v.

Lewis, 138 S. Ct. 1612, 1622 (2018) (quoting Concepcion,

563 U.S. at 344).

The Supreme Court has described the FAAas establishing

“a liberal federal policy favoring arbitration agreements.” 

Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp.,

460 U.S. 1, 24 (1983). While the “FAA contains no express

pre-emptive provision,” it preempts state law “to the extent

that [the state law] stands as an obstacle to the

accomplishment and execution of the full purposes and

objectives of Congress.” Volt Info. Scis., Inc. v. Bd. of Trs. of

Leland Stanford Junior Univ., 489 U.S. 468, 477 (1989). A

state-law rule can be preempted by the FAA in two ways.

First, a state-law rule is preempted if it is not a “generally

applicable contract defense[]” and so does not fall within the

saving clause as a “ground[] . . . for the revocation of any

contract.” 9 U.S.C. § 2; Concepcion, 563 U.S. at 339. A rule

is generally applicable if it “appl[ies] equally to arbitration
BLAIR V. RENT-A-CENTER 11

and non-arbitration agreements.” Sakkab v. Luxottica Retail

N. Am., Inc., 803 F.3d 425, 432 (9th Cir. 2015). By contrast,

a rule is not generally applicable if it “prohibits outright the

arbitration of a particular type of claim.” Concepcion,

563 U.S. at 341.

Second, even a generally applicable rule may be

preempted if it “stand[s] as an obstacle to the accomplishment

of the FAA’s objectives.” Id. An “overarching purpose of

the FAA . . . is to ensure the enforcement of arbitration

agreements according to their terms so as to facilitate

streamlined proceedings.” Id. As the Supreme Court

recently restated, “[t]he general applicability of[a]rule [does]

not save it from preemption under the FAA” if the rule

“interferes with fundamental attributes of arbitration.” Lamps

Plus, Inc. v. Varela, 139 S. Ct. 1407, 1418 (2019) (citing

Concepcion, 563 U.S. at 344).2

B. Concepcion and Sakkab

The Supreme Court’s decision in Concepcion and our

decision in Sakkab guide our analysis. Indeed, our decision

in Sakkab all but decides this case.

In Concepcion, the Supreme Court considered whether

the FAA preempted California’s Discover Bank rule that class

waivers in most consumer arbitration agreements were

unconscionable under California law. See Discover Bank v.

2 The parties filed notices of supplemental authority pursuant to

Federal Rule of Appellate Procedure 28(j) informing this court of the

Supreme Court’s decision in Lamps Plus, which was published after oral

argument in this case. We have reviewed the Supreme Court’s decision

and considered it in our analysis.
12 BLAIR V. RENT-A-CENTER

Superior Court, 113 P.3d 1100 (Cal. 2005). The Court

recognized that unconscionability is “a doctrine normally

thought to be generally applicable.” Concepcion, 563 U.S.

at 341. The Court nonetheless held the Discover Bank rule

was preempted because it “interfere[d] with fundamental

attributes of arbitration and thus create[d] a scheme

inconsistent with the FAA.” Id. at 344. According to the

Court, “the switch frombilateral to class arbitration sacrifices

the principal advantage of arbitration—its informality—and

makes the process slower, more costly, and more likely to

generate procedural morass than final judgment.” Id. at 348. 

The Court recognized that “class arbitration requires

procedural formality” because if “procedures are too

informal, absent class members would not be bound by the

arbitration”—that is, due process compels procedural

complexity in class arbitration. Id. at 349 (emphasis in

original). The Court noted that “class arbitration greatly

increases risks to defendants” because it combines high stakes

with limited appellate review. Id. at 350–51. The Court

concluded that classwide arbitration is therefore “not

arbitration as envisioned by the FAA” and “lacks its

benefits.” Id. at 351.

In the wake of Concepcion, we considered in Sakkab

whether the FAA preempts California’s Iskanian rule, which

bars contractual waiver in any fora of representative claims

under California’s Private Attorneys General Act of 2004

(“PAGA”), Cal. Lab. Code §§ 2698 et seq. See Sakkab,

803 F.3d at 427; Iskanian v. CLS Transp. L.A., LLC, 327 P.3d

129 (Cal. 2014). PAGA “authorizes an employee to bring an

action for civil penalties on behalf of the state against his or

her employer for Labor Code violations committed against

the employee and fellow employees, with most of the
BLAIR V. RENT-A-CENTER 13

proceeds of that litigation going to the state.” Iskanian,

327 P.3d at 133.

We concluded that the Iskanian rule is generally

applicable because it “bars any waiver of PAGA claims,

regardless of whether the waiver appears in an arbitration

agreement or a non-arbitration agreement.” Sakkab, 803 F.3d

at 432. We also noted that the rule does not “prohibit the

arbitration of any type of claim.” Id. at 434. We recognized

that although the purpose of the FAA is “to ensure that

private arbitration agreements are enforced according to their

terms,” the saving clause of § 2 would be rendered “wholly

ineffectual” if that purpose overrode all state-law contract

defenses. Id. (internal quotations and citations omitted). 

Instead, “Congress plainly . . . intend[ed] to preempt . . . only

those [state contract defenses] that ‘interfere[] with

arbitration.’” Id. (quoting Concepcion, 563 U.S. at 346).

We held the Iskanian rule does not interfere with

arbitration. Id. at 435. Most important, the Iskanian rule

does “not diminish parties’ freedom to select informal

arbitration procedures.” Id. PAGA actions, unlike class

actions, do not “resolve[] the claims of other employees,” so

“there is no need to protect absent employees’ due process

rights in PAGA arbitrations.” Id. at 436. Nor does California

state law “purport[] to limit parties’ right to use informal

procedures, including limited discovery.” Id. at 438–39. 

Finally, while PAGA actions “may . . . involve high stakes”

due to “hefty civil penalties,” the FAA does not preempt

causes of action merely because they impose substantial

liability. Id. at 437. We concluded that “the Iskanian rule

does not conflict with the FAA, because it leaves parties free

to adopt the kinds of informal procedures normally available

in arbitration.” Id. at 439.
14 BLAIR V. RENT-A-CENTER

C. Discussion

1. Generally Applicable Contract Defense

The McGill rule, like the Iskanian rule, is a generally

applicable contract defense. The California Supreme Court

specified that a waiver of public injunctive relief in “any

contract—even a contract that has no arbitration

provision”—is “unenforceable under California law.” 

McGill, 393 P.3d at 94 (emphasis in original). The McGill

rule thus applies “equally to arbitration and non-arbitration

agreements.” Sakkab, 803 F.3d at 432.

Rent-A-Center argues that the McGill rule is equivalent

to an earlier and now-preempted 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]greements to arbitrate claims for public injunctive relief

. . . are not enforceable in California.” McGill, 393 P.3d at

90. We held in Ferguson v. Corinthian Colleges, Inc.,

733 F.3d 928, 934 (9th Cir. 2013), that the FAA preempted

the Broughton-Cruz rule because it “prohibits outright” the

arbitration of public injunctive relief. The McGill rule bears

no resemblance to the Broughton-Cruz rule. It shows no

hostility to, and does not prohibit, the arbitration of public

injunctions. It merely prohibits the waiver of the right to

pursue public injunctive relief in any forum; the BroughtonCruzrule specifically excluded public injunctive claims 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 Supreme Court struck down a judgemade Kentucky rule that an agent with general power of
BLAIR V. RENT-A-CENTER 15

attorney could not waive a principal’s right to a jury trial

without explicit consent of the principal. Id. at 1425. The

rule had been invoked to invalidate two arbitration

agreements. Id. Though the rule did not explicitly forbid

the arbitration of claims, the Court held that “a legal rule

hinging on the primary characteristic of an arbitration

agreement—namely, a waiver of the right to go to court and

receive a jury trial”—impermissibly targets arbitration. Id.

at 1427. Unlike the Kentucky rule, the McGill rule does not

“rely on the uniqueness of an agreement 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 whether public

injunction claims are litigated or arbitrated, it merely

prohibits the waiver of the right to pursue those claims 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 “fundamental constitutional right”

without express consent—had never been applied outside the

context of arbitration. Id. at 1427–28. By contrast, the

McGill rule derives from a general and long-standing

prohibition on the private contractual waiver of public rights. 

California courts have repeatedly invoked California Civil

Code § 3513 to invalidate waivers unrelated to arbitration. 

See, e.g., County of Riverside v. Superior Court, 42 P.3d

1034, 1042 (Cal. 2002) (holding that a police officer’s

“blanket waiver” of his rights under the Public Safety

Officers Procedural Bill of Rights Act as a condition of his

employment would be inconsistent with § 3513); Covino v.

Governing Bd., 142 Cal. Rptr. 812, 817 (Ct. App. 1977)

(invalidating under § 3513 a teacher’s waiver of his right

under the Education Code to become a contract, rather than
16 BLAIR V. RENT-A-CENTER

temporary, employee); Benane v. Int’l Harvester Co.,

299 P.2d 750, 753 (Cal. Ct. App. 1956) (invalidating under

§ 3513 a collective bargaining agreement provision waiving

employees’ rights under the Election Code to be paid for time

taken off work to vote); De Haviland v. Warner Bros.

Pictures, 153 P.2d 983, 988 (Cal. Ct. App. 1944)

(invalidating under § 3513 a movie star’s contractual waiver

of the Labor Code’s seven-year limit on personal service

contracts); Cal. Powder Works v. Atl. & Pac. R.R. Co., 45 P.

691, 693 (Cal. 1896) (relying on § 3513 to construe a

common carrier’s contractual exemption from liability to

exclude liability caused by the carrier’s negligence because

that liability is “imposed upon it by law”).

In sum, the McGill rule is a generally applicable contract

defense derived from long-established California public

policy. It is a “ground[] . . . 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] doctrine normally thought to be generally

applicable” is nonetheless preempted by the FAA if it

“stand[s] as an obstacle to the accomplishment of the FAA’s

objectives.” Concepcion, 563 U.S. at 341, 343. One

objective of the FAA is to enforce arbitration agreements

according to their terms “so as to facilitate streamlined

proceedings.” Id. at 344. However, we “do not read

Concepcion to require the enforcement of all waivers of

representative claims in arbitration agreements.” Sakkab,

803 F.3d at 436. Instead, “Congress plainly . . . intend[ed] to

preempt . . . only those [state contract defenses] that

‘interfere[] with arbitration.’” Id. at 434 (quoting
BLAIR V. RENT-A-CENTER 17

Concepcion, 563 U.S. at 346). Accordingly, we look at

“whether refusing to enforce waivers” of a claim that is

“technically denominated” 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, does not “deprive parties of the

benefits of arbitration.” See id. This characteristic

distinguishes both rules from the Discover Bank rule barring

the waiver of class actions at issue in Concepcion. A major

concern in Concepcion was that compelling classwide

arbitration “requires procedural formality,” and, in so doing,

“makes the process slower, more costly, and more likely to

generate procedural morass than final judgment.” 

Concepcion, 563 U.S. at 348–49. By contrast, neither state

law nor constitutional due process gives rise to, let alone

“requires[,] procedural formality” in the arbitration of public

injunctive relief.

Public injunctive relief under the Karnette Act, UCL, and

CLRA does not require formalities inconsistent with

arbitration. In McGill, the California Supreme Court

expressly held that claims for public injunctive relief need not

comply with state-law class procedures. McGill, 393 P.3d

at 93. We are bound by this ruling. See Hemmings v.

Tidyman’s Inc., 285 F.3d 1174, 1203 (9th Cir. 2002). Nor

does constitutional due process require unusual procedures

inconsistent with arbitration. In Sakkab, we held that the due

process rights of absent employees are not implicated by the

arbitration of a PAGA claim because the claim is brought on

behalf of the state, which is the “real part[y] in interest.”

Sakkab, 803 F.3d at 436. The small portion of a PAGA

penalty distributed to employees is incidental to the statute’s

public enforcement purpose and effect. Similarly, here,
18 BLAIR V. RENT-A-CENTER

public injunction claims are brought for the benefit of the

general public, not on behalf of specific absent parties.

Crucially, arbitration of a public injunction does not

interfere with the bilateral nature of a typical consumer

arbitration. The rules struck down in Concepcion and Epic

Systems “impermissibly disfavor[ed] arbitration” because

they rendered an agreement “unenforceable just because it

require[d] bilateral arbitration.” Epic Systems, 138 S. Ct.

at 1623 (emphasis removed). The McGill rule does no such

thing. The McGill rule leaves undisturbed an agreement that

both requires bilateral arbitration and permits public

injunctive claims. 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

some cases be more complex than arbitration of a

conventional individual action or a representative PAGA

claim. But as with PAGA actions, the complexity involved

in resolving a request for a public injunction “flows from the

substance of the claim itself, rather than any procedures

required to adjudicate it (as with class actions).” Sakkab,

803 F.3d at 438. The distinction between substantive and

procedural complexity is relevant to the preemption analysis

because the Court found in Concepcion that classwide

arbitration’s “procedural formality” frustrated the FAA’s

objective of ensuring speedy, cost-effective, and informal

arbitration. Concepcion, 563 U.S. at 348–49. But “potential

complexity should not suffice to ward off arbitration” of

substantively complex claims. Mitsubishi Motors Corp. v.

Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 633 (1985). A
BLAIR V. RENT-A-CENTER 19

state-law rule that preserves the right to pursue a

substantively complex claimin arbitration without mandating

procedural complexity does not frustrate the FAA’s

objectives.

One theoretical distinction between arbitrating PAGA

claims and arbitrating public injunctive claims is the potential

for multiple injunctions against the same defendant imposing

conflicting obligations, a scenario without an obvious

analogue in the PAGA context. These concerns are

conjectural and unpersuasive. We are unaware of a single

such conflict in the decades public injunctive relief has been

available in California courts. Even assuming such conflicts

are (for some unidentified reason) imminent in the arbitral

forum, the defendant can always inform the arbitrator of its

existing obligations. We see no reason to believe that an

arbitrator would then impose an irreconcilable obligation on

the defendant. Nor would complex procedures be needed to

avoid such conflicts: the defendant need simply tell the

arbitrator. If the initial proceedings were confidential, the

defendant could, to the extent necessary, obtain permission

from the earlier arbitrator to make such a limited disclosure.

Ongoing injunctions sometimes need monitoring or

modification. The need for monitoring and modification is

inherent in all injunctive relief, public and private, and such

monitoring and modification is not incompatible with

informal arbitration. Arbitrators have long had the authority

and ability to address requests for injunctive relief within

bilateral arbitration. See AAA Commercial Arbitration

Rule 47(a) (“The arbitrator may grant any remedy or relief

that the arbitrator deems just and equitable and within the

scope of the agreement of the parties[.]”). We are not

concerned that arbitrating public injunctions would produce
20 BLAIR V. RENT-A-CENTER

procedural complexities not already common to the

arbitration of private injunctions.

Nor are public injunctions unique because of the need to

weigh the public interest in deciding whether to grant an

injunction. Judges and arbitrators routinely consider the

public interest when issuing private injunctions. See, e.g.,

Sw. Voter Reg. Educ. Project v. Shelley, 344 F.3d 914, 917

(9th Cir. 2003) (en banc) (“The district court must also

consider whether the public interest favors issuance of the

injunction”). Injunctive relief in antitrust actions, for

example, requires “reconciliation between the public interest

and private needs as well as between competing private

claims.” See California v. Am. Stores Co., 495 U.S. 271, 284

(1990).

Rent-A-Center’s contention that arbitration of a public

injunction requires expansive discovery and presentation of

class-wide evidence is mistaken. We 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 “demands class-wide evidence.” That case

merely stands for the unremarkable notion that evidence of

“similar practices involving other members of the public who

are not parties to the action” may be relevant to and

admissible to support a public injunction claim. Id. at 244. 

The Court of Appeal said nothing about the discoverability of

such evidence, nor did it limit parties’ ability to agree ex ante

on the scope of discovery.

The parties remain free to reasonably limit by ex ante

agreement discovery and presentation of evidence, as they

may with any other arbitrable claim. Rent-A-Center chose to

omit any such provision from the 2015 air conditioner
BLAIR V. RENT-A-CENTER 21

agreement, and, in the absence of such an agreement, the

breadth of discovery in a public injunctive action, as in a

PAGA action, “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 claims are unquestionably

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

Finally, a public injunction may involve high stakes and

could affect a lucrative business practice. But so could a

private injunctive, declaratory, or damages action. As we

explained in Sakkab, “the FAA would not preempt a state

statutory cause of action that imposed substantial liability

merely because the action’s high stakes would arguably make

it poorly suited to arbitration.” Sakkab, 803 F.3d at 437

(citing Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)). 

Where a public injunction does not interfere with the

informal, bilateral nature of traditional consumer arbitration,

high stakes alone do not warrant FAA preemption.

As we recognized in Sakkab, arbitration is “[i]n many

ways . . . well suited to resolving complex disputes, provided

that the parties are free to decide how the arbitration will be

conducted.” Id. at 438. Like the Iskanian rule, the McGill

rule does not “mandate procedures that interfere with

arbitration.” See id. Arbitration of public injunctive relief

accordingly need not “sacrifice[] the principal advantage of

arbitration—its informality.” See Concepcion, 563 U.S.

at 348. We hold that the FAA does not preempt the McGill

rule.
22 BLAIR V. RENT-A-CENTER

IV. Construction of the Arbitration Agreement

Having concluded that the FAA does not preempt the

McGill rule, we now turn to the 2015 air conditioner

agreement itself to determine its scope and effect. Rent-ACenter contends that the agreement requires Blair to submit

her Karnette Act, UCL, and CLRA claims to arbitration for

determination of liability. According to Rent-A-Center, only

after the arbitrator has determined liability can Blair go to

court to seek the remedy of a public injunction.3 We

disagree.

The severance clause in the 2015 agreement instructs us

to sever Blair’s Karnette Act, UCL, and CLRA claims from

the scope of arbitration, and to permit such claims to be

brought in court. The clause reads:

If there is a final judicial determination that

applicable law precludes enforcement of this

Paragraph’s limitations as to a particular

claim for relief, then that claim (and only that

claim) must be severed from the arbitration

and may be brought in court.

The severance clause is triggered by the McGill rule. 

Paragraph (D) of the agreement prohibits the arbitrator from

awarding “relief that would affect RAC account holders other

than you,” and eliminates any “right or authority for any

3 Rent-A-Center alternatively argues that the McGill rule does not

apply because Blair’s requested relief does not amount to a public

injunction. Not so. Blair seeks to enjoin future violations of California’s

consumer protection statutes, relief oriented to and for the benefit of the

general public.
BLAIR V. RENT-A-CENTER 23

dispute to be brought, heard, or arbitrated as a class,

collective, mass, private attorney general, or representative

action.” Paragraph (D) thus precludes the arbitrator from

awarding public injunctive relief. Paragraph (B) of the

agreement permits Rent-A-Center to demand that all disputes

be resolved in arbitration, which precludes Blair fromseeking

public injunctive relief in court. Read together, Paragraphs

(B) and (D) waive Blair’s right to seek a public injunction “in

any forum.” McGill, 393 P.3d at 87. The McGill rule is

“applicable law” that “precludes enforcement” of Paragraph

(D)’s limitations as to Blair’s Karnette Act, UCL, and CLRA

claims.

Rent-A-Center contends that the severance clause carves

out only the potential public injunctive remedy 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 only to a particular remedy, not to the

underlying claim. The district court found Rent-A-Center’s

reading “unnatural and unpersuasive,” and we agree. Parties

are welcome to agree to split decisionmaking between a court

and an arbitrator in this manner. Cf. Ferguson, 733 F.3d

at 937. But they did not do so here.

The severance clause refers to “a particular claim for

relief,” but it then goes on to require, a few words later in the

same sentence, severance of “that claim” from the arbitration

in order to allow it to “be brought in court.” A “claim for

relief,” as that term is ordinarily used, is synonymous with

“claim” or “cause of action.” See, e.g., Fed. R. Civ. P. 8(a)

(interchangeably using “claim” and “claim for relief,” and

using “demand for relief sought” to refer specifically to

requested remedy); Claim, Black’s Law Dictionary (10th ed.

2014) (noting that a “claim” is “[a]lso termed claim for
24 BLAIR V. RENT-A-CENTER

relief”); Claim for relief, Black’s Law Dictionary (10th ed.

2014) (referencing definition for “claim”); In re Ocwen Loan

Serv., LLC Mortg. Serv. Litig., 491 F.3d 638, 646 (7th Cir.

2007) (“The eighth claim is purely remedial; it seeks

injunctive relief. Of course it is not a claim, that is, a cause

of action, and should not have been labeled as such . . . .”);

Cannon v. Wells Fargo Bank N.A., 917 F. Supp. 2d 1025,

1031 (N.D. Cal. 2013) (“[E]quitable relief is not a claim for

relief but rather only a remedy.”). We read the clause, as did

the district court, to provide that the entire claim be severed

for judicial determination.

V. Other Issues

The district court refused to impose either a mandatory or

discretionary stay on the non-arbitrable claims pending

arbitration of Blair’s usury claim. We have jurisdiction under

9 U.S.C. § 16(a)(1)(A) to review the denial of a mandatory

stay, which is a question of law that we review de novo. 

Under 9 U.S.C. § 3, a district court must stay proceedings for

claims and issues “referable to arbitration” pending resolution

of the arbitration. See Leyva v. Certified Grocers of Cal.,

Ltd., 593 F.2d 857, 863 (9th Cir. 1979). Only the usury claim

was “referable to arbitration,” so Rent-A-Center was not

entitled to a stay under § 3 for any of the other claims. See id.

We affirm the district court’s ruling.

We lack jurisdiction to review the district court’s denial

of a discretionary stay. See Portland Gen. Elec. Co. v.

Liberty Mut. Ins. Co., 862 F.3d 981, 986 (9th Cir. 2017). Our

appellate jurisdiction under the FAA over interlocutory

appeals is limited to the orders listed in 9 U.S.C. § 16(a)(1). 

Kum Tat Ltd. v. Linden Ox Pasture, LLC, 845 F.3d 979, 982

(9th Cir. 2017). Relevant here, appellate jurisdiction extends
BLAIR V. RENT-A-CENTER 25

to orders “refusing a stay of any action under section 3 of this

title.” 9 U.S.C. § 16(a)(1)(A). A discretionary stay is based

on the district court’s inherent authority to manage its docket

and is not “a stay . . . under section 3” of the FAA. See

Portland Gen. Elec. Co., 862 F.3d at 984. The exceptions

that, at times, justify extension of appellate jurisdiction over

the imposition of a discretionary stay do not apply to the

denial of a stay. Cf. Dependable Highways Exp. Inc. v.

Navigators Ins. Co., 498 F.3d 1059, 1063–64 (9th Cir. 2007).

We also lack jurisdiction to review the district court’s

decision to defer ruling on Rent-A-Center’s motion to strike

because it is a non-final order not covered by one of the

categories set forth 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 motion to

compel arbitration and motion for a mandatory stay are

AFFIRMED.

Rent-A-Center’s appeals of the district court’s denial of

a discretionary stay and deferral on the motion to strike class

claims are DISMISSED for lack of jurisdiction.