In Kilgore v. Keybank, Nat. Ass’n, — F.3d —-, 2013 WL 1458876 (9th Cir. 2013), the Court of Appeals for the Ninth Circuit, stepped back from the panel’s ruling that Concepcion abrogates Cruz v. Pacificare Health Systems, Inc. (2003) 30 Cal.4th 303 and Broughton v. Cigna Healthplan of California (1999) 21 Cal.4th 1066, as well as Davis v. O’Melveny & Meyers, 485 F.3d 1066 (9th Cir. 2007), which followed Cruz and Broughton. Instead, the Court of Appeals held that an arbitration clause with class action waiver was not unconscionable, and was permissible under Concepcion. Plaintiffs failed to satisfy Green Tree v. Randolph’s demand for proof that arbitration would be too expensive. The Court of Appeals held that the clause was not procedurally unconscionable because the arbitration clause was not hidden and it allowed the signer 60 days to opt out after signing the contract. The Court of Appeals held that it needed not decide whether Cruz, Broughton and Davis remained good law because, in any event, they create only a narrow exception to arbitration for cases in which the plaintiff seeks an injunction primarily for public benefit, not his own. Here, the requested injunctive relief was against negative credit reporting and collection activity against plaintiffs and class members–a private, not public benefit. The complaint also sought to enjoin the defendant from financing other schools whose contracts did not include FTC Holder Rule language. That might have been enough to invoke the Cruz/Broughton/Davis exception, but the defendant had withdrawn from the business of financing schools, so as a practical matter the relief was again solely personal to the named plaintiffs and class, with no public benefit. Hence, bilateral arbitration was compelled.