McArdle v. AT&T Mobility LLC et al

Filing 287

ORDER GRANTING MOTION TO RECONSIDER AND VACATING ARBITRAL AWARD by Judge Claudia Wilken denying as moot 263 MOTION to Vacate Arbitral Award, ; granting 273 Motion for Reconsideration ; denying 274 Motion to Confirm Arbitration Award; granting 285 Administrative Motion to reconsider, recind the 9/25/2013 order compelling arbitration and vacating arbitral award. (tlS, COURT STAFF) (Filed on 10/2/2017)

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1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 STEVEN MCARDLE, 8 United States District Court Northern District of California 9 10 11 12 Case No. 09-cv-01117-CW Plaintiff, ORDER GRANTING MOTION TO RECONSIDER AND VACATING ARBITRAL AWARD v. AT&T MOBILITY LLC; NEW CINGULAR WIRELESS PCS LLC; and NEW CINGULAR WIRELESS SERVICES, INC., (Dkt. Nos. 257, 263, 273, 274, 285) Defendants. 13 14 15 The Court granted the motion of Defendants AT&T Mobility 16 LLC, New Cingular Wireless PCS LLC, and New Cingular Wireless 17 Services, Inc., to compel arbitration in this case. 18 arbitrator has issued a decision. 19 moved to vacate the arbitral award and to reconsider the Court’s 20 order compelling arbitration. Defendants have filed a cross- 21 motion to confirm the award. Each motion is opposed and each 22 party has filed a reply. 23 the record, and relevant authority, the Court grants Plaintiff’s 24 motion to reconsider, rescinds the September 25, 2013 order 25 compelling arbitration and vacates the arbitral award. 26 also denies as moot Plaintiff’s motion to vacate the award under 27 9 U.S.C. § 10(a)(3) or (4), and denies Defendants’ motion to 28 confirm. The Plaintiff Steven McArdle has Having considered the parties’ papers, The Court BACKGROUND 1 Defendants provide cellular telephone services. Plaintiff 2 alleges that Defendants deceptively charged exorbitant 3 international roaming fees for calls that customers did not 4 answer, voicemail they did not check, and calls they did not 5 place. He asserts claims under California law, on behalf of 6 himself and all others similarly situated, for false advertising, 7 fraud, and violation of the Consumers Legal Remedies Act (CLRA) 8 and Unfair Competition Law (UCL). United States District Court Northern District of California 9 Plaintiff’s service agreement with Defendants contains a 10 provision that requires the parties to the agreement to arbitrate 11 “all disputes and claims” between them. Debra Figueroa Decl. in 12 Support of Renewed Motion to Compel Arbitration and Stay Action, 13 Ex. 2, § 2.2(1). More specifically, section 2.0 of the service 14 agreement, captioned “How Do I Resolve Disputes With AT&T,” 15 relates to dispute resolution. Id. § 2.0. Section 2.0 is 16 divided into two sections, of which section 2.1 is a summary and 17 section 2.2 is captioned “Arbitration Agreement.” Id. § 2.2. 18 Section 2.2, in turn, contains seven numbered subsections, the 19 sixth of which provides: 20 21 22 23 24 25 26 27 The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. YOU AND AT&T AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and AT&T agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void. 28 2 1 Id. § 2.2(6) (emphasis in original); see also July 1, 2013 Ltr. 2 from Defense Counsel, Dkt. No. 245 (conceding that “‘this 3 specific provision’ refers to all of Section 2.2(6), that is, all 4 three preceding sentences”). On September 14, 2009, this Court denied Defendants’ motion 6 to compel arbitration, finding that the class arbitration waiver 7 was unconscionable under Discover Bank v. Superior Court, 36 Cal. 8 4th 148 (2005), and Shroyer v. New Cingular Wireless Services, 9 United States District Court Northern District of California 5 Inc., 498 F.3d 976 (9th Cir. 2007). Because the class 10 arbitration provision was expressly not severable from the other 11 portions of the arbitration provision, the Court found that the 12 arbitration provision as a whole was not enforceable. 13 Defendants filed an interlocutory appeal. Meanwhile, this 14 Court granted a stay pending the decision of the United States 15 Supreme Court in AT&T Mobility LLC v. Concepcion, 563 U.S. 333 16 (2011). 17 Court held that California’s Discover Bank rule was preempted by 18 the Federal Arbitration Act (FAA), the Ninth Circuit reversed and 19 remanded. 20 (9th Cir. 2012). The purpose of the remand was for this Court “to 21 consider in the first instance McArdle’s arguments based on 22 generally applicable contract defenses.” 23 Following the Concepcion decision, in which the Supreme See McArdle v. AT&T Mobility, 474 F. App’x 515, 516 Id. On remand, Defendants filed a renewed motion to compel 24 arbitration and stay the action. 25 September 25, 2013. 26 Plaintiff’s arguments that arbitration was foreclosed by 27 California’s Broughton-Cruz rule, which prohibits arbitration of 28 public injunctive relief claims under the CLRA and UCL, because The Court granted the motion on The Court considered and rejected 3 such claims are “designed to prevent further harm to the public 2 at large rather than to redress or prevent injury to a 3 plaintiff.” 4 303, 316 (2003); see also Broughton v. Cigna Healthplans of 5 California, 21 Cal. 4th 1066 (1999). 6 Broughton-Cruz rule is not a generally applicable contract 7 defense and thus does not survive Concepcion. 8 found that the arbitration agreement was not unenforceable under 9 United States District Court Northern District of California 1 then-applicable law for purporting to bar customers from seeking 10 11 Cruz v. PacifiCare Health Systems, Inc., 30 Cal. 4th The Court found that the The Court further public injunctive relief in any forum. While the arbitration was pending, the California Supreme 12 Court granted a petition for review to assess the enforceability 13 of public injunctive relief waivers under California law. 14 v. Citibank, 345 P.3d 61 (Cal. Apr. 1, 2015) (Mem.). 15 requested that the arbitrator stay the arbitration pending 16 McGill. 17 Kristen Simplicio Decl. in Support of Motion to Vacate Arbitral 18 Award ¶ 3 & Ex. B. 19 McGill Plaintiff The arbitrator denied the request on June 8, 2015. On September 16, 2016, the arbitrator issued his ruling in 20 favor of Defendants. 21 individual claims, he found that Plaintiff did not meet his 22 burden to prove that Defendants failed to disclose international 23 roaming charges before Plaintiff incurred those charges on a trip 24 to Italy in 2008. 25 decided that it was not necessary to address the additional 26 issues raised by the parties, including Plaintiff’s claim for 27 injunctive relief. 28 Id. ¶ 2 & Ex. A. Addressing Plaintiff’s In light of this finding, the arbitrator On December 16, 2016, Plaintiff timely filed his motion to 4 1 vacate the arbitral award. 2 motions to extend the time for Defendants to respond to the 3 motion, due to the scheduling needs of counsel and the Supreme 4 Court’s impending decision in McGill. 5 The Court granted two stipulated On April 6, 2017, the California Supreme Court decided McGill v. Citibank, N.A., 2 Cal. 5th 945 (2017). 7 decision in McGill, this Court granted leave for Plaintiff to 8 file a motion for reconsideration of the order compelling 9 United States District Court Northern District of California 6 arbitration. 10 Plaintiff filed the motion for reconsideration and Defendants filed a cross-motion to confirm the arbitral award. 11 12 13 14 15 After the DISCUSSION I. Plaintiff’s Motion for Reconsideration of the Order Compelling Arbitration. A. McGill Is a Change in Controlling Law that Warrants Reconsideration. Plaintiff moves for reconsideration of the Court’s order 16 compelling arbitration. 17 in bringing the motion” may seek reconsideration of an 18 interlocutory order based on “a change of law occurring after the 19 time of such order.” 20 not dispute Plaintiff’s diligence in bringing the motion promptly 21 after McGill was decided. 22 A party who shows “reasonable diligence N.D. Cal. Civil L.R. 7-9(b). Defendants do McGill constitutes a change in controlling law for the 23 purpose of reconsideration. 24 order, the Court found that the Broughton-Cruz doctrine applies 25 only to arbitration agreements, and thus could not be a generally 26 applicable contract defense as contemplated by the FAA. 27 McGill, however, the California Supreme Court ruled that 28 predispute contracts purporting to waive the right to seek the In the Court’s September 25, 2013 5 In California statutory remedy of public injunctive relief in any 2 forum are contrary to California public policy and thus 3 unenforceable under California law, regardless of whether they 4 are contained in an arbitration agreement. 5 see also id. at 961 (quoting Cal. Civil. Code § 3513 (“Any one 6 may waive the advantage of a law intended solely for his benefit. 7 But a law established for a public reason cannot be contravened 8 by a private agreement.”). 9 United States District Court Northern District of California 1 does not preempt this rule of California law or require 10 2 Cal. 5th at 951-52; The court further held that the FAA enforcement of the waiver provision. Id. at 951-52, 962-966. 11 McGill’s holding that predispute waivers of public 12 injunctive relief are contrary to California public policy is 13 binding on this Court. 14 1174, 1203 (9th Cir. 2002) (“In interpreting state law, federal 15 courts are bound by the pronouncements of the state’s highest 16 court.”). 17 that occurred after this Court’s order compelling arbitration. 18 Judgment has not been entered in this case, and the Court may 19 reconsider its interlocutory order compelling arbitration. 20 long as a district court has jurisdiction over the case, then it 21 possesses the inherent procedural power to reconsider, rescind, 22 or modify an interlocutory order for cause seen by it to be 23 sufficient.” 24 Baykeeper, 254 F.3d 882, 885 (9th Cir. 2001) (holding that 25 district court had jurisdiction to rescind order certifying 26 interlocutory appeal) (quoting Melancon v. Texaco, Inc., 659 F.2d 27 551, 553 (5th Cir. 1981)). 28 whether the referral to arbitration was correct. See Hemmings v. Tidyman’s Inc., 285 F.3d It represents a significant change in California law “As City of Los Angeles, Harbor Div. v. Santa Monica Accordingly, the Court must examine 6 1 B. The FAA Does Not Preempt the McGill Rule. On the question of whether the FAA preempts the McGill rule, 2 the Court owes no deference to the state court, and follows 3 federal law. Vandevere v. Lloyd, 644 F.3d 957, 964 (9th Cir. 4 2011). If the FAA preempted McGill, then no reconsideration of 5 the Court’s prior order compelling arbitration would be 6 warranted, and the Court would proceed to review the arbitral 7 award. The Court finds, however, that the FAA does not preempt 8 McGill. United States District Court Northern District of California 9 In Sakkab v. Luxottica Retail N. Am., 803 F.3d 425 (9th Cir. 10 2015),1 the Ninth Circuit held that the FAA does not preempt 11 California’s rule, announced in Iskanian v. CLS Transportation 12 Los Angeles, LLC, 59 Cal. 4th 348 (2014), barring the predispute 13 waiver of representative claims under the Private Attorneys 14 General Act of 2004 (PAGA), Cal. Lab. Code. § 2698 et seq. 15 Following the two-step approach used by the Supreme Court in 16 Concepcion, the Sakkab court first analyzed whether the Iskanian 17 rule falls within the plain language of the FAA savings clause 18 for “such grounds as exist at law or in equity for the revocation 19 of any contract.” 9 U.S.C. § 2. It held that the Iskanian rule 20 is a “generally applicable contract defense,” not a ground for 21 revocation of arbitration agreements only. Sakkab, 803 F.3d at 22 433 (citing Concepcion, 563 U.S. at 343). 23 Second, the Sakkab court turned to the question of whether 24 the Iskanian rule conflicts with the FAA’s purposes, applying 25 “ordinary conflict preemption principles.” Id. It held that the 26 27 1 28 Sakkab, like McGill, was decided after this Court’s September 25, 2013 order. 7 Iskanian rule does not “stand as an obstacle to the 2 accomplishment of the FAA’s objectives.” 3 (quoting Concepcion, 563 U.S. at 343). 4 “expresses no preference regarding whether individual PAGA claims 5 are litigated or arbitrated. 6 representative PAGA claims may not be waived outright.” 7 434 (citing Iskanian, 59 Cal. 4th at 384). 8 held, the “Iskanian rule prohibiting waiver of representative 9 United States District Court Northern District of California 1 PAGA claims does not diminish parties’ freedom to select informal Id. at 427, 433 It held that Iskanian It provides only that Id. at Therefore, the court 10 arbitration procedures.” 11 procedural device, which, the court explained, imposes burdens on 12 arbitration that “diminish the parties’ freedom to select the 13 arbitration procedures that best suit their needs.” 14 By contrast, a PAGA action is a statutory action by which an 15 employee may seek penalties “as the proxy or agent of the state’s 16 labor law enforcement agencies.” 17 59 Cal. 4th at 380). 18 procedures, and therefore “prohibiting waiver of such claims does 19 not diminish parties’ freedom to select the arbitration 20 procedures that best suit their needs.” 21 to the requirements of class actions, nothing “prevents parties 22 from agreeing to use informal procedures to arbitrate 23 representative PAGA claims.” 24 Id. at 435. A class action is a Id. at 436. Id. at 435 (quoting Iskanian, A PAGA action does not require any special Id. at 436. In contrast Id. The Sakkab court concluded that the potential high stakes of 25 a claim, alone, do not interfere with arbitration because the 26 parties are free to contract for whatever formal or informal 27 procedures they choose to handle the claim. 28 FAA was not “intended to require courts to enforce agreements 8 Id. at 437-439. The 1 that severely limit the right to recover penalties for violations 2 that did not directly harm the party bringing the action.” 3 at 440. 4 The same analysis applies here, with equal force. Id. The McGill rule is a generally-applicable contract defense. 6 See 9 U.S.C. § 2. 7 do not require burdensome procedures that could stand as an 8 obstacle to FAA arbitration. 9 United States District Court Northern District of California 5 free to contract for any procedures they choose for arbitrating, Moreover, claims for public injunctive relief On the contrary, the parties are 10 or litigating, public injunctive relief claims. 11 FAA does not preempt California’s McGill rule. 12 C. 13 Therefore, the The Arbitration Agreement Is “Null and Void” by Its Own Terms. The Court turns to the arbitration agreement in this case. 14 The parties agree that the first sentence of subsection 2.2(6), 15 quoted above, purports to waive the arbitrator’s ability to award 16 public injunctive relief. In combination with the agreement in 17 subsection 2.2(1) that all claims and disputes, broadly defined, 18 would be arbitrated, this constitutes a waiver of public 19 injunctive relief in all fora that violates the McGill rule. 20 The Court turns, therefore, to the consequences of this 21 waiver. Defendants contend that if the arbitrator could not 22 address Plaintiff’s claims for public injunctive relief, then 23 this Court could address them after the arbitrator resolved the 24 issues that were within the scope of the arbitration agreement. 25 See Ferguson v. Corinthian Colls., Inc., 733 F.3d 928, 937 (9th 26 Cir. 2013) (if arbitrator concludes that it lacks authority to 27 enter injunction, then under language of applicable arbitration 28 9 agreement plaintiffs “may return to the district court to seek 2 their public injunctive relief”); see also Wiseman v. Tesla, 3 Inc., 4 (holding that language of agreement allowed arbitrator to decide 5 in first instance whether public injunctive relief claims were 6 arbitrable). 7 procedure would render Plaintiff’s public injunctive relief claim 8 moot, because the arbitrator decided that Plaintiff had failed to 9 United States District Court Northern District of California 1 meet his burden to prove any of his underlying claims on the 2 No. 17-cv-04798-JFW, at 4 (C.D. Cal. Sept. 12, 2017) Moreover, Defendants argue, following this 10 merits, making it unnecessary to reach the issue of injunctive 11 relief. 12 This argument does not comport with the language of the 13 arbitration agreement in this case. 14 here is dictated, not by other courts’ findings regarding the 15 procedures set forth in other arbitration agreements, but by the 16 specific procedures contracted to by the parties in the 17 arbitration agreement at issue here. 18 The procedure to be followed Plaintiff describes the final sentence of subsection 2.2(6) 19 of the parties’ arbitration agreement as a “poison pill.” 20 contends that because, under the McGill rule, the first sentence 21 of subsection 2.2(6) is unenforceable, the entire arbitration 22 provision in the contract (section 2.0) is also “null and void” 23 due to the “poison pill,” and no portion of the parties’ dispute 24 is subject to arbitration. He 25 26 27 28 2 The Court GRANTS Defendants’ administrative motion for leave to file a statement of recent decision bringing Wiseman to the attention of the Court, although it agrees with Plaintiff that the arbitration agreement in this case is materially different from that in Wiseman. 10 1 Defendants, on the other hand, contend that if the waiver of any claim is found to be unenforceable, then the arbitration 3 agreement is “null and void” only with regard to that one claim, 4 leaving other claims subject to arbitration. 5 would suggest an approach similar to that taken in Ferguson, 6 where the arbitrator would decide all claims subject to 7 arbitration, and Plaintiff could then return to this Court for 8 adjudication of his claim for public injunctive relief. 9 United States District Court Northern District of California 2 Defendants imply that the language of the “poison pill” is at This interpretation 10 least ambiguous, and should be construed in favor of permitting 11 arbitration of all issues except public injunctive relief because 12 “any doubts concerning the scope of arbitrable issues should be 13 resolved in favor of arbitration, whether the problem at hand is 14 the construction of the contract language itself or an allegation 15 of waiver, delay, or a like defense to arbitrability.” 16 Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25 17 (1983). 18 Moses H. Defendants are correct that the Court will not deny an order 19 compelling arbitration “unless it may be said with positive 20 assurance that the arbitration clause is not susceptible of an 21 interpretation that covers the asserted dispute. 22 be resolved in favor of coverage.” 23 Workers of Am., 475 U.S. 643, 650 (1986) (quoting Steelworkers v. 24 Warrior & Gulf Navigation Co., 363 U.S. 574, 582-583 (1960)). 25 Here, however, there is no room for doubt. 26 “poison pill” sentence unambiguously provides that “the entirety 27 of this arbitration provision shall be null and void” if 28 subsection 2.2(6), waiving claims and relief on behalf of other 11 Doubts should AT&T Techs., Inc. v. Commc’ns The language of the 1 persons, is found to be unenforceable. 2 construction of this sentence ignores the agreement’s use of the 3 word “entirety” and attempts to read in limiting language that 4 does not exist, such as adding the words “as to the specific 5 claim” at the end of the paragraph. 6 Defendants’ earlier position regarding the scope of the “poison 7 pill.” 8 United States District Court Northern District of California 9 Defendants’ proposed It also is in tension with It would, of course, have been permissible for the parties to agree to an arbitration provision that was limited in this 10 way. 11 written declares the entire arbitration provision null and void 12 because the waiver of public injunctive relief is unenforceable. 13 The Court notes that although the parties need not have agreed to 14 so broad a “poison pill,” there was reason for them to do so. 15 See Sakkab, 803 F.3d at 437 (“The FAA contemplates that parties 16 may simply agree ex ante to litigate high stakes claims if they 17 find arbitration’s informal procedures unsuitable.”). 18 They did not do so, however. The contract as actually The McGill rule constitutes a change in controlling law and 19 is not preempted by the FAA. 20 relief in subsection 2.2(6) of the parties’ agreement is 21 therefore unenforceable, and this triggers the “poison pill” 22 rendering the entire arbitration provision null and void. 23 Court must therefore grant reconsideration of, and rescind, its 24 September 25, 2013 order compelling arbitration and vacate the 25 arbitral award. 26 II. 27 28 The waiver of public injunctive The The Motions to Vacate or Confirm the Arbitral Award. Because the Court reconsiders the September 25, 2013 order granting Defendants’ renewed motion to compel arbitration and 12 1 stay this action, rescinds its prior order compelling arbitration 2 and vacates the arbitral award, the Court denies as moot 3 Plaintiff’s motion to vacate the award under 9 U.S.C. § 10(a)(3) 4 and (4). 5 award. 6 merits of the arbitrator’s decision. 7 The Court also denies Defendants’ motion to confirm the By this decision, the Court does not reach or review the Defendants contend that the FAA statutorily bars Plaintiff’s “attempt to evade confirmation of a final arbitration award” 9 United States District Court Northern District of California 8 through reconsideration of this Court’s order compelling 10 arbitration. 11 decision, this Court’s review is “both limited and highly 12 deferential.” 13 1128, 1132 (9th Cir. 2003) (internal quotation marks omitted). 14 The Court “must” confirm and enter judgment on an award “unless 15 the award is vacated, modified, or corrected as prescribed in 16 sections 10 and 11” of the FAA. 17 Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 587 (2008) (“There 18 is nothing malleable about ‘must grant,’ which unequivocally 19 tells courts to grant confirmation in all cases, except when one 20 of the ‘prescribed’ exceptions applies.”). 21 Opp. at 20. When reviewing an arbitrator’s Coutee v. Barington Capital Grp., L.P., 336 F.3d 9 U.S.C. § 9; see also Hall St. Here, the Court is not reviewing an arbitral award, and the 22 merits of the arbitrator’s decision are irrelevant to the 23 correctness of this Court’s order compelling arbitration in the 24 first place. 25 reviewed the merits of the arbitrator’s decision based on 26 impermissible grounds. 27 contract that the arbitral award could be vacated if the 28 arbitrator’s findings of fact were not supported by substantial In Hall Street, by contrast, the district court had The Hall Street parties had agreed by 13 1 evidence or the arbitrator’s conclusions of law were erroneous. 2 552 U.S. at 579. 3 among the grounds for vacatur of an arbitral award under the FAA. 4 Because the statutory grounds for vacatur are exclusive, the 5 district court could not vacate the award based on the 6 contractual grounds. 7 The Supreme Court held that these bases are not Likewise, the Ninth Circuit held in a recent unpublished memorandum disposition that where an arbitrator applies the law 9 United States District Court Northern District of California 8 as it exists at the time of the arbitral award, an intervening 10 change in law prior to a court’s FAA review does not provide a 11 basis to vacate the award. 12 687 F. App’x 646, 648 (9th Cir. 2017). 13 -not the district court--held that the governing arbitration 14 agreement’s waiver of representative PAGA claims was enforceable. 15 See Wulfe v. Valero Ref. Co.--California, 641 Fed. App’x 758, 761 16 (9th Cir. 2016) (“Wulfe argues that the arbitrator exceeded her 17 powers by allegedly ordering Wulfe to proceed with his PAGA claim 18 on an individual basis because such a right cannot be waived.”); 19 Wulfe v. Valero Ref. Co., No. 12-cv-05971-MWF, 2016 WL 9132900, 20 *1 (C.D. Cal. May 19, 2016) (noting that it was “the arbitrator’s 21 order requiring Plaintiff to proceed with his PAGA claims on an 22 individual basis”). 23 California Supreme Court decided Iskanian and the Ninth Circuit 24 decided Sakkab, reaching a different decision about the 25 enforceability of PAGA waivers. 26 change in law did not justify vacating the arbitral award under 27 the rigorous standard of review provided by the FAA. 28 Circuit explained that “the issue is not whether, with perfect Wulfe v. Valero Ref. Co.--California, In Wulfe, the arbitrator- After the award was issued, however, the The district court held that the 14 The Ninth hindsight, we can conclude that the arbitrator erred.” 2 687 F. App’x at 648. 3 decision, the Court must consider whether the arbitrator 4 “recognized the applicable law and then ignored it.” 5 (quoting Lagstein v. Certain Underwriters at Lloyd’s, London, 6 607 F.3d 634, 641 (9th Cir. 2010)). 7 not act with manifest disregard of any law that existed at the 8 time of the award, and the court therefore confirmed the arbitral 9 United States District Court Northern District of California 1 award. 10 Wulfe, Rather, in reviewing an arbitrator’s The issue here is different. Id. In Wulfe, the arbitrator did The arbitrator was not the one 11 to conclude that Plaintiff’s waiver of public injunctive relief 12 claims was enforceable; it was this Court that made that ruling 13 in the order compelling arbitration. 14 not review the arbitrator’s decision under the FAA, but rather, 15 reconsiders its own interlocutory order. 16 Court’s order compelling arbitration was erroneous in light of 17 the subsequent decisions in McGill and Sakkab, and must be 18 rescinded. The Court, therefore, vacates the arbitral award 19 without reviewing its merits under the FAA. 20 21 The Court therefore does As discussed, the CONCLUSION For the foregoing reasons, the Court GRANTS Plaintiff’s 22 motion for reconsideration of the order compelling arbitration 23 (Docket No. 273), rescinds that prior order (Docket No. 257), and 24 VACATES the arbitral award. 25 motion to vacate the arbitral award (Docket No. 263); and DENIES 26 Defendants’ cross-motion to confirm the arbitral award (Docket 27 No. 274). 28 motion for leave to file a statement of recent decision (Docket The Court DENIES AS MOOT Plaintiff’s The Court also GRANTS Defendants’ administrative 15 1 2 3 4 No. 285). The Court shall schedule a case management conference by separate Clerk’s Notice. IT IS SO ORDERED. 5 6 Dated: October 2, 2017 CLAUDIA WILKEN United States District Judge 7 8 United States District Court Northern District of California 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16

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