On Friday, January 17, 2020, the Ninth Circuit denied rehearing and rehearing en banc in McCardle v. AT&T and Tillage v. Comcast. Under the Federal Arbitration Act’s saving clause, an arbitration agreement that is otherwise enforceable under federal law remains subject to any generally applicable state-law contract defense. The panel in these two appeals concluded that a state policy known as the “McGill Rule” is such a defense. As the panel acknowledged, however, the McGill rule arises from California Civil Code § 3513, a state “maxim of jurisprudence.” WLF filed a brief contending that California’s maxims of jurisprudence are not contract defenses that properly trigger the FAA’s saving clause. In addition, WLF argued, the McGill rule is preempted because its only purpose is to serve as a tool for striking down arbitration clauses.

Documents:

WLF 8/19/2019 amicus brief