All three cases address whether a rule articulated by the California Supreme Court in McGill v. Citibank, N.A., 2 Cal.5th 945, 216 Cal. Rptr. 3d 627, 393 P.3d 85 (2017), is preempted by the FAA. Spoiler alert: the Ninth Circuit says the McGill rule isn’t preempted. That’s sure to raise some eyebrows, including by SCOTUS justices.
Deep breath! Let’s wade into this.
In McGill, the California Supreme Court held that an agreement waving 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.” (Liz wrote about McGill here.) To understand what this means, it helps to see the distinction between what California considers private injunctive relief and public injunctive relief.
