Adkins et al v. Comcast Corporation

Filing 154

ORDER DENYING MOTION TO COMPEL ARBITRATION, GRANTING LEAVE TO AMEND COMPLAINT, DENYING MOTION TO STRIKE CLASS ALLEGATIONS, DISMISSING CERTAIN NAMED PLAINTIFFS, DENYING MOTION TO CONSOLIDATE CASES, AND GRANTING MOTION TO REOPEN DISCOVERY. Signed by Judge Vince Chhabria on 2/15/2018. (vclc1S, COURT STAFF) (Filed on 2/15/2018)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

DAN ADKINS, et al.,

Case No. 16-cv-05969-VC

Plaintiffs,
v.

Re: Dkt. Nos. 115, 151

COMCAST CORPORATION, et al.,
Defendants.

CHARLES TILLAGE, et al.,
Plaintiffs,
v.
COMCAST CORPORATION, et al.,
Defendants.

Case No. 17-cv-06477-VC
ORDER DENYING MOTION TO
COMPEL ARBITRATION, GRANTING
LEAVE TO AMEND COMPLAINT,
DENYING MOTION TO STRIKE
CLASS ALLEGATIONS, DISMISSING
CERTAIN NAMED PLAINTIFFS,
DENYING MOTION TO
CONSOLIDATE CASES, AND
GRANTING MOTION TO REOPEN
DISCOVERY
Re: Dkt. Nos. 10, 16

1. The defendants' motion to compel arbitration in the Tillage case (No. 17-cv-06477) is
denied. The arbitration agreement in this case waives an individual's right to bring a public
injunctive relief claim in any forum. See 2017 Subscriber Agreement § 13(h) (Dkt. No. 28-1,
Ex. A at 14). Such a waiver is unenforceable under state law. McGill v. Citibank, N.A., 2 Cal.
5th 945, 951 (2017); see also Blair v. Rent-A-Center, Inc., No. C 17-02335 WHA, 2017 WL
4805577, at *2-6 (N.D. Cal. Oct. 25, 2017); McArdle v. AT&T Mobility LLC, No. 09-cv-01117-

CW, 2017 WL 4354998, at *3-4 (N.D. Cal. Oct. 2, 2017). To the extent that Comcast argues the
McGill rule is preempted by the Federal Arbitration Act, McGill itself explains why it is not.1
McGill, 2 Cal. 5th at 961-66; see also Blair, 2017 WL 4805577, at *4-5; McArdle, 2017 WL
4354998, at *3-4. Moreover, the agreement includes language that invalidates the entire
arbitration clause if the waiver is invalidated. See 2017 Subscriber Agreement § 13(h); see also
McArdle, 2017 WL 4354998, at *4-5. Therefore, the motion to compel arbitration is denied.
Any request to stay this case pending appeal of this ruling must be filed within 14 days of this
order. It can be filed as an administrative request under Local Rule 7-11.
2. The plaintiffs in the Adkins case (No. 16-cv-05969) are granted leave to amend their
complaint to add a public injunctive relief claim. The parties are ordered to meet and confer
within 7 days of this order to determine how the complaint will be amended. The amended
complaint must be filed within 14 days of this order.
3. The defendants' motion to strike the class allegations in the Tillage case is denied.
The parties have stipulated that plaintiffs Dan Adkins and Christopher Robertson should be
dismissed from the Tillage case since they are bringing their claims in the Adkins case.
Therefore, Adkins and Robertson are dismissed from the Tillage case.
4. The plaintiffs' motion to consolidate the two cases is denied.
5. The plaintiffs' motion to reopen discovery in the Adkins case is granted. Discovery
will be reopened as it relates to the issue of Comcast's evidence preservation, to the changes
made to the deposition of Tom Karnishak, and to the addition of the public injunctive relief
claim. Comcast is ordered to pay the costs of the resumed deposition of Karnishak, including
1

Contrary to Comcast's assertions, Ferguson v. Corinthian Colleges, Inc., does not apply.
Ferguson held that the Federal Arbitration Act preempted California's rule prohibiting parties
from compelling the arbitration of public injunctive relief claims. 733 F.3d 928, 932-37 (9th Cir.
2013). McGill applies because it held that waivers of the right to bring claims for public
injunctive relief in any forum are unenforceable. That is precisely the kind of waiver here.
Given the similarities between public injunctive relief claims and representative actions under
the Private Attorneys General Act of 2004 ("PAGA"), it is also worth noting that the Ninth
Circuit has held that California's rule barring waivers of PAGA claims is not preempted by the
Federal Arbitration Act. See Sakkab v. Luxottica Retail North America, Inc., 803 F.3d 425, 43140 (9th Cir. 2015).

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any travel costs incurred by plaintiffs' counsel. The parties must file all discovery requests
within 28 days of this order. All discovery disputes must be presented to Judge Ryu.
6. The schedule for the Adkins case will be as follows: the discovery cutoff is June 15,
2018; the last day for a hearing on dispositive motions is October 4, 2018; the pretrial conference
will take place on December 3, 2018; and trial will begin December 10, 2018.
IT IS SO ORDERED.
Dated: February 15, 2018
______________________________________
VINCE CHHABRIA
United States District Judge

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