Steven McArdle v. At&t Mobility LLC

Opinion

FILED UNITED STATES COURT OF APPEALS AUG 31 2012

MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT U .S. C O U R T OF APPE ALS

STEVEN MCARDLE, No. 09-17218

Plaintiff - Appellee, D.C. No. 4:09-cv-01117-CW Northern District of California, v. Oakland

AT&T MOBILITY, LLC; NEW CINGULAR WIRELESS PCS, LLC; ORDER AMENDING NEW CINGULAR WIRELESS MEMORANDUM DISPOSITION SERVICES, INC., AND DENYING PETITION FOR REHEARING Defendants - Appellants.

Before: HUG, RAWLINSON, and IKUTA, Circuit Judges.

The Memorandum Disposition filed on June 29, 2012 is amended as

follows:

On page 2 of the Memorandum Disposition, last paragraph, the first sentence

is amended by inserting following and deleting the language

beginning with through , so that the sentence now reads:

§ 2 of the Federal Arbitration Act>.

The second sentence of the last paragraph is deleted in its entirety. The third sentence of the last paragraph is amended by deleting

, deleting the language beginning with through the end of the

sentence, and inserting

based on generally applicable contract defenses> following , so the

sentence now reads:

instance McArdle’s arguments based on generally applicable contract defenses.>.

An Amended Memorandum Disposition will be filed simultaneously with

this Order.

With these amendments, the panel has voted to deny Appellant’s Petition for

Rehearing filed on July 2, 2012.

The Petition for Rehearing is DENIED. No further petitions for rehearing

and/or rehearing en banc will be entertained.

2 09-17218 FILED NOT FOR PUBLICATION AUG 31 2012

MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

Plaintiff - Appellee, D.C. No. 4:09-cv-01117-CW

v. AMENDED MEMORANDUM * AT&T MOBILITY, LLC; NEW CINGULAR WIRELESS PCS, LLC; NEW CINGULAR WIRELESS SERVICES, INC.,

Defendants - Appellants.

Appeal from the United States District Court for the Northern District of California Claudia A. Wilken, District Judge, Presiding

Submitted June 15, 2012 ** San Francisco, California

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). AT&T Mobility, LLC appeals the district court’s order denying its motion to

compel arbitration.

When the district court denied the motion to compel arbitration, it did not

have the benefit of the decisions by the United States Supreme Court in AT&T

Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011) and by this court in Coneff v.

AT&T Corp., 673 F.3d 1155 (9th Cir. 2012). The district court ruled that the

arbitration clause in the agreement between Plaintiff Steven McArdle and AT&T

was unenforceable due to the absence of class action relief. This ruling is not

consistent with the holdings of Concepcion and Coneff. See Concepcion, 131 S.

Ct. at 1751-52; Coneff, 673 F.3d at 1161.

In Coneff, we noted that “generally applicable contract defenses” survive

under § 2 of the Federal Arbitration Act. Coneff, 673 F.3d at 1161 (quoting

Concepcion, 131 S. Ct. at 1746). We remand to the district court to consider in the

first instance McArdle’s arguments based on generally applicable contract

defenses. See id.

REVERSED and REMANDED.