In Hoffman v. Citibank (South Dakota), N.A., ___ F.3d ___ (9th Cir. Oct. 14, 2008) (per curiam), the Ninth Circuit remanded for the district court to re-determine whether, under California's choice-of-law rules, South Dakota or California law applies in assessing whether the credit card contract's no-class-action arbitration clause is unconscionable.
That analysis would be outcome-determinative, because the clause would be enforceable under South Dakota law (slip op. at 14492 n.2), but "would be substantively unconscionable under California law on the facts alleged" (id. at 14497) (emphasis in original).