On March 20, 2014, the US Court of Appeals for the Ninth Circuit in Johnson v. Consumerinfo.com joined other circuits in holding that 28 U.S.C. § 1292(b) is the only route to immediately appeal an order staying proceedings and compelling arbitration and that 9 U.S.C. § 16 bars appeals from such interlocutory orders, even if they are deemed to be collateral claims (No. 11-57184, (9th Cir. Mar. 20, 2014)).

The plaintiffs separately purchased a credit report monitoring program from Consumerinfo.com. The terms and conditions of the purchase included an arbitration clause requiring arbitration of all claims and disputes. Each plaintiff filed a putative class action in the US District Court for the Central District of California, alleging violations of various consumer protection laws. Consumerinfo.com filed motions to compel arbitration in each case. The district court stayed the actions and compelled arbitration. Each plaintiff appealed and the Ninth Circuit consolidated the cases.

9 U.S.C. § 16 sets out when an appeal may be taken. It is well established that Section 16 bars appeals of interlocutory orders compelling arbitration and staying proceedings. The plaintiffs argued that the Ninth Circuit had jurisdiction to hear the appeal because the order staying proceedings and compelling arbitration qualified as a collateral order and was therefore deemed final and immediately appealable under § 16.

The Ninth Circuit disagreed with the plaintiffs' "creative" argument. The court held that it did not have jurisdiction under 9 U.S.C. § 16 to hear an appeal of an order compelling arbitration and staying proceedings, regardless of whether the order could otherwise be deemed final under the collateral order doctrine. By looking at the plain meaning of the statute and the legislative history, Congress's intent to prohibit the immediate appeals under § 16(b) is clear.

The Ninth Circuit dismissed the appeal, joining its sister courts, and held that 28 U.S.C. § 1292(b) provides the only route for immediate appeal of orders staying proceedings and compelling arbitration.

Counsel should be aware that 28 U.S.C. § 1292(b) is the only avenue to immediately appeal a district court order staying proceedings and compelling arbitration in the Ninth Circuit.