On November 13, 2012, the Ninth Circuit issued its calendar notice setting oral argument in Kilgore v. KeyBank National Assn., No. 09-16703 (9th Cir.). The argument will take place before the en banc court on Tuesday, December 11, 2012 Wednesday, December 12, 2012 at 10:00 a.m. in Pasadena. CORRECTION: The date of the argument is Tuesday, December 11 (not the 12th).
If anyone is interested in attending the argument and writing a report for publication here, please let me know.
The Ninth Circuit just granted the petition for en banc rehearing in September. In March, 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).
Unlike many of the post-Concepcion cases, this is not an employment case. Rather, it is a consumer action on behalf of students who enrolled in a "helicopter vocational school" and took out student loans from KeyBank. An arbitration clause was put into the notes the students signed. This differentiates the case from traditional consumer false advertising claims, which rarely involve a contract into which an arbitration clause could be inserted.
Some of the briefs filed at the rehearing stage are available at these links (with thanks to the blog reader who forwarded them):
- Petition for Rehearing and Rehearing En Banc (filed 03-21-12)
- Amicus Brief of Arbitration Professors (filed 03-27-12)
- Amicus Brief of National Association of Consumer Advocates et al. (filed 03-29-12)
- Amicus Brief of National Employment Lawyers Association et al. (filed 04-02-12)