En Banc Ninth Circuit in the Ring to Confront the Enforceability of Class Action Waivers, but Appears Unwilling to Deliver the Knock-Out Punch

On Tuesday, an en banc panel of the Ninth Circuit heard oral argument regarding whether California’s rule against compulsory arbitration for claims of public injunctive relief was preempted by the Federal Arbitration Act (“FAA”) in Kilgore v. KeyBank NA.  As we reported in March of this year, a three judge panel of the Ninth Circuit held that the California rule did not survive the U.S. Supreme Court’s vehement reaffirmation of the preemptive effect of the FAA in AT&T Mobility v. Concepcion.  But then came the Ninth Circuit’s decision to grant en banc review.  This development appeared to breath new life into the plaintiffs’ argument that certain claims are immune to mandatory arbitration agreements when judicial resolution is needed to “vindicate statutory rights.” 

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