We recently posted a discussion concerning the petitions for rehearing filed in the Blair v. Rent-A-Center appeals pending in the Ninth Circuit which raise the issue of whether the Federal Arbitration Act preempts California’s McGill Rule. The McGill Rule derives from the California Supreme Court’s ruling in McGill v. Citibank, N.A. that an arbitration agreement requiring individual arbitration and precluding a consumer from pursuing claims for “public” injunctive relief in court or in arbitration is unenforceable under California law.

To further update the status of the rehearing petitions, on September 9, 2019, the Ninth Circuit ordered the plaintiffs in the Blair appeals to file responses to the defendants’ petitions by September 30, 2019. Ninth Circuit Rule 35-2 provides that “[w]here a party petitions for hearing or rehearing en banc, the Court will not order a hearing or rehearing en banc without giving the other parties an opportunity to express their views whether hearing or rehearing en banc is appropriate.” While the ordering of responses does not mean that the Ninth Circuit will grant rehearing, it does underscore the seriousness of the rehearing petitions.

We will continue to keep you advised of further developments in these appeals.