SAN FRANCISCO When oral arguments were called in Kilgore v. KeyBank last December at the U.S. Court of Appeals for the Ninth Circuit, the plaintiffs approached it as a routine case about the unconscionability of an arbitration clause. But the Ninth Circuit was headed in a different direction.
“Unconscionability?” Judge Carlos Bea asked plaintiffs counsel Andrew August. “I thought the California law you’re invoking was the Cruz case, which made it impossible to seek arbitration for prospective injunctive relief.”
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