Law360 Reports on Chaffee-McClure and Hutchinson Amicus Brief

Shook Partner Zach Chaffee-McClure and Associate Liz Hutchinson, members of Shook’s Appellate Practice Group, filed amicus curiae briefs on behalf of DRI-The Voice of the Defense Bar, supporting the Supreme Court review of two cases in which the Ninth Circuit applied California rules hostile to the enforcement of arbitration agreements notwithstanding the preemptive force of the Federal Arbitration Act. In McArdle v. AT&T Mobility LLC, 772 F. App’x 575 (9th Cir. 2019), and Tillage v. Comcast Corp., 772 F. App’x 569 (9th Cir. 2019), the Ninth Circuit held the FAA did not preempt a California rule providing that arbitration agreements are unenforceable if they purport to bar public-injunction claims. This so-called “McGill rule,” from the California Supreme Court’s holding in McGill v. Citibank, N.A., 393 P.3d 85 (Cal. 2017), creates an easy way for plaintiffs to circumvent nearly all arbitration agreements; they need only allege a right to a public injunction in their requested relief.

In “Justices Urged To Protect Millions Of Calif. Arbitration Clauses,” Law360 reports that the Ninth Circuit cases set up a “long-expected clash” with AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011), a point made by Shook in its briefs. The cases, if allowed to stand, could upend the enforceability of tens of millions of arbitration agreements, facilitate blackmail settlements, and foster forum-shopping in favor of California courts.

Chaffee-McClure serves on the Amicus Committee for DRI, which writes amicus briefs on issues of law important to defense lawyers, their clients and the civil justice system—almost exclusively in the United States Supreme Court.