Roberts et al v. AT&T Mobility LLC

Filing 86

ORDER Re Briefing Schedule for 85 Plaintiffs' Motion for Leave to File Motion for Reconsideration. Signed by Judge Edward M. Chen on 1/23/2018. (emcsec, COURT STAFF) (Filed on 1/23/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MARCUS A. ROBERTS, et al.,
Plaintiffs,

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v.

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AT&T MOBILITY LLC,

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Defendant.

ORDER RE BRIEFING SCHEDULE
FOR PLAINTIFFS’ MOTION FOR
LEAVE TO FILE MOTION FOR
RECONSIDERATION
Docket No. 85

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For the Northern District of California

United States District Court

Case No. 15-cv-03418-EMC

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Plaintiffs filed suit against AT&T, asserting statutory, tort, and warranty claims based on

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AT&T‟s “deceptive and unfair trade practice of marketing its wireless service plans as being

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„unlimited,‟ when in fact those plans are subject to a number of limiting conditions [in particular,

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throttling] that either are not disclosed or inadequately disclosed to consumers.” FAC ¶ 1. In

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April 2016, the Court granted AT&T‟s motion to compel arbitration, rejecting, inter alia,

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Plaintiffs‟ contention that an order compelling arbitration would result in a First Amendment

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violation. See Docket No. 60. However, the Court subsequently granted Plaintiffs‟ motion for

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certification for an immediate appeal of that ruling. See Docket No. 69 (order, filed in June 2016).

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More than a year later, in December 2017, the Ninth Circuit affirmed this Court‟s arbitration

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order, noting, inter alia, that there was no state action to support Plaintiffs‟ First Amendment

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argument. See Docket No. 83 (Ninth Circuit opinion). Approximately a month later, Plaintiffs

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filed the currently pending motion for leave to file a motion for reconsideration.

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In their motion, Plaintiffs do not challenge the reasoning in the Court‟s prior order

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compelling arbitration or the Ninth Circuit‟s opinion affirming that order. Instead, Plaintiffs assert

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that there is a new legal basis establishing that arbitration should not be compelled in the instant

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case. More specifically, Plaintiffs argue that a decision of the California Supreme Court, issued in

Citibank, N.A., 2 Cal. 5th 945 (2017) (in a case involving, inter alia, § 17200 and CLRA claims,

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holding that an arbitration agreement that waives the right to seek the statutory remedy of public

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injunctive relief is contrary to California public policy and therefore unenforceable; further

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holding that there is no FAA preemption of that California rule pursuant to the Supreme Court‟s

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Concepcion decision). Plaintiffs add that, in October 2017, two judges in this District relied on

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McGill as a basis to deny a motion to compel arbitration. See McArdle v. AT&T Mobility LLC,

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No. 09-cv-01117-CW, 2017 U.S. Dist. LEXIS 162751 (N.D. Cal. Oct. 2, 2017) (granting

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plaintiff‟s motion for reconsideration of arbitration order, rescinding that order, and vacating the

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arbitral award); Blair v. Rent-a-Center, Inc., No. C-17-2335 WHA (Docket No. 82) (order, filed

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on October 25, 2017) (denying motion to compel arbitration with respect to, inter alia, plaintiff‟s

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For the Northern District of California

April 2017, constitutes a change in law occurring after the Court‟s arbitration order. See McGill v.

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United States District Court

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§ 17200 and CLRA claims).

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Having reviewed Plaintiffs‟ motion for leave to file a motion for reconsideration, the Court

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hereby GRANTS the motion for leave and deems the pending motion Plaintiffs‟ substantive

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motion to reconsider. The Court further orders AT&T to file an opposition brief within two weeks

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of the date of this order, and Plaintiffs a reply brief within three weeks of the date of this order.

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The Court shall thereafter determine whether a hearing on the motion to reconsider is necessary.

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IT IS SO ORDERED.

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Dated: January 23, 2018
______________________________________
EDWARD M. CHEN
United States District Judge

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