                                                                               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 <noted> following <we> and deleting the language

beginning with <remanded> through <reasoning>, so that the sentence now reads:

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

§ 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

<Therefore>, deleting the language beginning with <for> through the end of the

sentence, and inserting <to consider in the first instance McArdle’s arguments

based on generally applicable contract defenses> following <district court>, so the

sentence now reads: <We remand to the district court to consider in the first

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



STEVEN MCARDLE,                                  No. 09-17218

              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

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




        *
             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.




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