                                                                           FILED
                           NOT FOR PUBLICATION                              NOV 19 2009

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




                            FOR THE NINTH CIRCUIT



GREG MASTERS, on behalf of himself               No. 08-55825
and all others similarly situated,
                                                 D.C. No. 2:08-cv-00906-FMC-
             Plaintiff - Appellee,               VBK

  v.
                                                 MEMORANDUM *
DIRECTV, INC., a California corporation;
et al.,

             Defendants - Appellants.



JOHN MURPHY, on behalf of himself,               No. 08-55830
and those similarly situated,
                                                 D.C. No. 2:07-cv-06465-FMC-
             Plaintiff - Appellee,               VBK

  v.

DIRECTV, INC.; et al.,

             Defendants - Appellants.



                   Appeal from the United States District Court
                       for the Central District of California
                 Florence-Marie Cooper, District Judge, Presiding

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                     Argued and Submitted November 2, 2009
                              Pasadena, California

Before: SCHROEDER, SILER, ** and IKUTA, Circuit Judges.


      Under California’s choice of law analysis, as articulated in Nedlloyd Lines

B.V. v. Superior Court, 834 P.2d 1148, 1151–52 (Cal. 1992), California law

applies because California has both a fundamental policy against the enforceability

of class-action waivers and has a materially greater interest than Montana or

Georgia. A California appellate court has held that the class-action waiver at issue

is unconscionable under California law. See Cohen v. DirecTV, Inc., 48 Cal. Rptr.

3d 813, 823 (Cal. Ct. App. 2006). Additionally, multiple California courts have

held that California has a “fundamental policy” against enforcing this type of class-

action waiver. See, e.g., Klussman v. Cross Country Bank, 36 Cal. Rptr. 3d 728,

736, 741 (Cal. Ct. App. 2005); America Online, Inc. v. Superior Court, 108 Cal.

Rptr. 2d 699, 712 (Cal. Ct. App. 2001).

      No California court has ruled that this fundamental policy applies only to

protecting California residents, and because we have no basis for creating such a

limitation, we must conclude that the “fundamental policy” prong of the Nedlloyd



       **
             The Honorable Eugene E. Siler, Jr., Senior United States Circuit
Judge for the Sixth Circuit, sitting by designation.

                                          -2-
test is met in this case. In the foundational case on class action waivers in

California, Discover Bank v. Superior Court (Discover Bank I), 113 P.3d 1100

(Cal. 2005), the California Supreme Court held that class-action waivers that

“cheat large numbers of consumers out of individually small sums of money” are

unconscionable, “at least to the extent the obligation at issue is governed by

California law.” Id. at 1110. The California Supreme Court confined its holding

to class action waivers governed by California law, but made no similar limitation

as to California consumers; we decline to do so here. See also Brack v. Omni Loan

Co., Ltd., 80 Cal. Rptr. 3d 275, 278, 285–86 (Cal. Ct. App. 2008) (applying a

California “fundamental policy” in favor of Brack, a “nonresident member of the

military stationed at Camp Pendleton”).

      California has a materially greater interest than Montana or Georgia in the

current dispute because California is home to the sole defendant and because the

appellees assert claims under California law alone. Cf. Discover Bank v. Superior

Court (Discover Bank II), 36 Cal. Rptr. 3d 456, 461–62 (Cal. Ct. App. 2005).

Moreover, California has “demonstrated by statute” id., its determination that class

action waivers are unenforceable. See Cal. Civ. Code § 1751 (2009). Because the

current dispute is brought as a nationwide class action, neither Montana nor

Georgia can claim any special interest in having its laws apply to this dispute; each


                                          -3-
state in which putative class members reside, whether it is California, Montana, or

Georgia, has the same interest in protecting its own residents. See Discover Bank

II, 36 Cal. Rptr. 3d at 462.

      Finally, this conclusion does not contradict Washington Mutual Bank v.

Superior Court, 15 P.3d 1071 (Cal. 2001), because that case did not address “the

enforceability of class action waivers in contracts of adhesion,” Discover Bank I,

113 P.3d at 1109 n.3, the situation alleged in this case.

      AFFIRMED.




                                          -4-
