In a ruling that was expected to have a broad impact on mandatory employment arbitration agreements, the Ninth Circuit today compelled arbitration in Kilgore v. Keybank, National Association, but avoided a broad ruling vitiating the Broughton-Cruz rule. Kilgore v. Keybank, National Association, No. 09-16703, __ F.3d __ (9th Cir. Apr. 11, 2013) (en banc). The appeal involved a putative class action by former students of a failed flight-training school who seek broad injunctive relief against the bank that originated their student loans among others. The en banc court held that the arbitration agreement was not unconscionable under California law and reversed and remanded with instructions to compel arbitration.
The Court quoted the relevant part of the arbitration clause as follows:
IF ARBITRATION IS CHOSEN BY ANY PARTY WITH RESPECT TO A CLAIM, NEITHER YOU NOR I WILL HAVE THE RIGHT TO LITIGATE THAT CLAIM IN COURT OR HAVE A JURY TRIAL ON THAT CLAIM . . . . FURTHER, I WILL NOT HAVE THE RIGHT TO PARTICIPATE AS A REPRESENTATIVE OR MEMBER OF ANY CLASS OF CLAIMANTS PERTAINING TO ANY CLAIM SUBJECT TO ARBITRATION. . . . I UNDERSTAND THAT OTHER RIGHTS I WOULD HAVE IF I WENT TO COURT MAY ALSO NOT BE AVAILABLE IN ARBITRATION. . . .
Defendants sought a broad ruling that the U.S. Supreme Court’s 2011 ruling in Concepcion vitiated the Broughton-Cruz rule that makes unenforceable arbitration agreements that bar certain claims for public injunctive relief. The Ninth Circuit did not reach this question: Continue reading