Many thanks to the blog reader who wrote to advise that last Friday, the Ninth Circuit granted en banc rehearing in Kilgore v. KeyBank National Assn., No. 09-16703 (9th Cir.). A copy of the order is here.
In Kilgore, the three-judge panel held (among other things) that the FAA, as interpreted in Concepcion, preempts the California Supreme Court's Broughton and Cruz decisions, which held that CLRA and UCL claims seeking public injunctions are not arbitrable as a matter of public policy. Kilgore v. KeyBank Nat'l Assn., 673 F.3d 947 (2012).
My original post on Kilgore is here.
It will be very interesting to see what the en banc panel does with this case. Notably, the California Supreme Court just denied review a week and a half ago in Hoover, in which the Court of Appeal had this to say about UCL public injunction claims:
Certainly, the injunctive relief claim under the Unfair Business Practices Act (Bus. & Prof. Code, § 17200) is not arbitrable. (Cruz v. PacifiCare Health Systems, Inc. (2003) 30 Cal.4th 303, 315-316; Brown v. Ralphs Grocery Co., supra, 197 Cal.App.4th at pp. 500-501.)
And in April, the U.S. Supreme Court denied cert. in Brown, in which the Court of Appeal relied on Broughton and Cruz in concluding that PAGA claims were inarbitrable:
The purpose of the PAGA is not to recover damages or restitution, but to create a means of "deputizing" citizens as private attorneys general to enforce the Labor Code. (See Nicholson, Businesses Beware: Chapter 906 Deputizes 17 Million Private Attorneys General to Enforce the Labor Code (2004) 35 McGeorge L.Rev. 581.) Here, the relief is in large part "for the benefit of the general public rather than the party bringing the action" (Broughton, supra, 21 Cal.4th at p. 1082), just as the claims for public injunctive relief in Broughton and Cruz, supra, 30 Cal.4th 303.
Meanwhile, the California Supreme Court has posted its statement of the issues on review in Iskanian (review granted last week):
(1) Did AT&T Mobility LLC v. Concepcion (2011) 563 U.S. __ [131 S. Ct. 1740, 179 L.Ed.2d 742] impliedly overrule Gentry v. Superior Court (2007) 42 Cal.4th 443 with respect to contractual class action waivers in the context of non-waivable labor law rights? (2) Does the high court's decision permit arbitration agreements to override the statutory right to bring representative claims under the Labor Code Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.)? (3) Did defendant waive its right to compel arbitration?
Iskanian v. CLS Transportation, No. S204032 (emphasis added).
If you have copies of the rehearing petition and other briefs in Kilgore, I would appreciate receiving them. Presumably the case will soon be added to the Court's pending en banc cases page.