Michael Rubin

Rubin has long specialized in appeals, class actions and impact litigation over public policy issues. His glittering resume includes clerkships for William J. Brennan Jr. at the U.S. Supreme Court and James R. Browning at the 9th U.S. Circuit Court of Appeals.

In June 2019 he obtained a decision from a 9th Circuit panel in an important arbitration matter that found a valid exception in California law to the Federal Arbitration Act. The panel affirmed the ability of plaintiffs in state consumer class actions to defeat defense motions to compel arbitration when the plaintiffs seek injunctions to force corporations to change their conduct. Blair v. Rent-A-Center Inc., 17-17221 (9th Cir., opinion filed June 28, 2019).

“It’s potentially a huge exception to the general principle that under the Federal Arbitration Act, anything goes in an arbitration agreement,” Rubin said.

Plaintiffs in Blair accused the defendant of price gouging in its rent-to-own plans. They sought damages, fees and costs and a public injunction to prohibit future violations of California’s unfair competition law and other statutes.

The panel underscored its view on the issue with identical rulings on the same day in unpublished opinions that rejected efforts to enforce similar arbitration clauses by defendants AT&T Mobility LLC and Comcast Corp. In all three cases, plaintiffs cited California consumer protection statutes.

“This will have great long term impact,” Rubin said. “A company can’t use language banning all class actions and class-wide remedies in a mandatory arbitration agreement if the effect would be to strip its customers of their right to seek a public injunction that would benefit others in the future.”

He added that the outcome should also apply to employment cases and could extend to other states with public-injunction statutes.

In August, Rubin settled the case with Rent-A-Center, forestalling a further appeal, but he noted that AT&T and Comcast might still challenge the ruling with en banc and cert petitions. That would follow a pattern in which Rubin and his firm help establish exceptions to the FAA — as in cases such as Gentry and D.R. Horton — only to see them attacked by defendants and reversed by the U.S. Supreme Court. Others, like Armendariz or Iskanian, remain on the books so far.

“We’ve gotten a lot of victories that last for five years or so,” Rubin said. “Then we come back with something else. Even when our wins met with untimely endings, it’s still gratifying that each of them nonetheless had a significant beneficial impact on the rights of employees while they remained in effect. We’re looking at this for the long term, and I still believe in the soundness of our underlying legal positions, even though as an advocate I don’t get to vote.”

— John Roemer