Reinsurance Focus

Former students of a failed flight-training school brought a putative class action against the bank that originated their student loans and the loan servicer, claiming violation of the California Unfair Competition Law and seeking to enjoin defendants from reporting loan defaults to creditors and from enforcing Notes against the students. The district court dismissed plaintiffs’ claims for failure to state a claim and denied defendants’ motion to compel arbitration. A panel of the Ninth Circuit reversed, holding that the arbitation provision as not unconscionable and that arbitration should have been compelled, following the United States Supreme Court’s Concepcion opinion, which had reversed a ruling by the Ninth Circuit. The Ninth Circuit granted en banc review, but then followed the panel decision in a lopsided 10-1 decision, holding that the arbitration clause was not substantively or procedurally unconscionable under California law for the following reasons: (1) the Note’s ban on class arbitration is not unconscionable after Concepcion; (2) the risk that plaintiffs cannot afford the arbitration fees is too speculative; and (3) the arbitration clause was “in its own section, clearly labeled, in boldface” and gave the students an opportunity to opt out of the clause within 60 days of signing the note. The Court also held that the case did not fall under the “public injunction” exception to the Federal Arbitration Act because injunctive relief would benefit only the approximately 120 putative class members and not the public. Judge Pregerson dissented, finding the arbitration to be unconscionable and unenforceable. Kilgore v. KeyBank, Nat’l Assoc., Case No. 09-16703 (9th Cir. Apr. 11, 2013).

This post written by Abigail Kortz.

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