In Roberts v. AT&T Mobility, LLC, 2016 WL 1660049, at *1-4 (N.D.Cal., 2016), Judge Chen enforced AT&T’s arbitration clause and class action waiver against Plaintiff’s constitutional challenge.
Plaintiffs essentially raise three arguments as to why arbitration should not be compelled: (1) because, if this Court were to compel arbitration, that would be state action that would violate their First Amendment rights – more specifically, the right to petition a court for a redress of grievances ; (2) because, even though the arbitration provision allows a claim to be brought in small claims court, that court is not an adequate forum and therefore their First Amendment rights have still been abridged; and (3) because the FAA must be construed as not applying to consumer actions in order to avoid a constitutional problem (i.e., the constitutional avoidance doctrine). Each of the above arguments turns on the applicability of the First Amendment. But, as both parties recognize, in order for Plaintiffs to have a First Amendment claim, they must first show state action. . . . Plaintiffs acknowledge that the arbitration agreements are contracts between private actors. Nevertheless, they assert, there would still be state action in the instant case upon this Court’s enforcement of that private agreement. . . .As a starting point, the Court finds no merit to Plaintiffs« ?assertion that the mere fact of judicial enforcement automatically establishes state action. The Ninth Circuit rejected that position in Ohno v. Yasuma, 723 F.3d 984 (9th Cir. 2013). . . .To the extent Plaintiffs have relied on Shelley v. Kraemer, 334 U.S. 1 (1948), see Mot. at 3-4, to support the position that judicial enforcement itself provides the requisite state action necessary to establish a constitutional claim, the Court is not persuaded. . . . Plaintiffs have pointed to no authority holding that judicial enforcement, particularly of an arbitration award, constitutes state action. In fact, as the Ohno court noted, the authority is to the contrary. Finally, the Court takes note that, in many private contracts, there are provisions that arguably affect access to the courts or otherwise implicate significant rights, such as choice-of-venue, choice-of-law, statute-of-limitations, and limitations-on-damages provisions. Although these provisions may be subject to restrictions imposed by statutory and/or common law (e.g., the doctrine of unconscionability, violation of public policy), courts have not held that judicial enforcement of these provisions, particularly as found in contracts between private parties, raises constitutional claims. See, e.g., Soltani v. W. & S. Life Ins. Co., 258 F.3d 1038, 1045 (9th Cir. 2001) (holding that a six-month statute-of-limitations provision was enforceable); Severn Peanut Co. v. Indus. Fumigant Co., 807 F.3d 88, 92 (4th Cir. 2015) (rejecting assertion that consequential damages exclusion in contract was not enforceable).