NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CINDY DELISLE; ROBERT 

DOUGHERTY, Individually and On Behalf 

of All Others Similarly Situated, 

Plaintiffs-Appellees, 

 v. 

SPEEDY CASH, 

Defendant-Appellant.

No. 19-55794 

D.C. No. 

3:18-cv-02042-GPC-RBB 

MEMORANDUM*

Appeal from the United States District Court

for the Southern District of California

Gonzalo P. Curiel, District Judge, Presiding

Submitted June 5, 2020**

Anchorage, Alaska

Before: CHRISTEN, WATFORD, and BADE, Circuit Judges.

Defendant-Appellant Speedy Cash appeals the district court’s order denying 

its motion to compel arbitration pursuant to 9 U.S.C. § 4 and to stay proceedings

pursuant to 9 U.S.C. § 3. We have jurisdiction under 9 U.S.C. § 16(a)(1) and 28 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

JUN 9 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

U.S.C. § 1291. We review de novo the district court’s decisions on preemption and 

the motion to compel arbitration, Blair v. Rent-A-Center, Inc., 928 F.3d 819, 824-25

(9th Cir. 2019), as well as its choice of law analysis, Cassirer v. Thyssen-Bornemisza 

Collection Found., 862 F.3d 951, 959 (9th Cir. 2017).

1. Speedy Cash argues that the district court erred in refusing to enforce

an arbitration provision in loan agreements that included a waiver of the 

borrower’s right to seek public injunctive relief in all forums. The district court

concluded that the Plaintiffs-Appellees requested public injunctive relief that the 

California Supreme Court deemed non-waivable in McGill v. Citibank, N.A., 393 

P.3d 85 (Cal. 2017). Pursuant to California’s Unfair Competition Law (“UCL”) 

and Consumers Legal Remedies Act (“CLRA”), Plaintiffs requested an injunction 

barring Speedy Cash from issuing loans greater than $2,500 with an annual 

percentage rate of interest (“APR”) over 90% and requiring Speedy Cash to issue 

“corrective advertising” about prior loans. The district court held that the 

requested injunction would benefit the general public because it would prevent 

Speedy Cash from continuing to engage in unlawful conduct that threatens future 

harm. Based on the record and law as it stood at the time of the district court’s 

order, we agree.

In McGill, the California Supreme Court held that a contractual waiver of a 

statutory right to seek public injunctive relief in all forums is contrary to California 
3 

policy and unenforceable under California Civil Code § 3513. 393 P.3d at 93-94. 

Public injunctive relief “has the primary purpose and effect of prohibiting unlawful 

acts that threaten future injury to the general public.” Id. at 87. Speedy Cash 

contends that a public injunction under the UCL and CLRA is cabined to

preventing deceptive advertising and marketing. But McGill explained that public 

injunctive relief under the UCL and CLRA aims to restrain any “unlawful act,” 

e.g., an unfair, deceptive, or fraudulent business practice, “that threaten[s] future 

injury to the general public.” Id. at 87, 89. If charging an APR above 90% on 

loans greater than $2,500 is unlawful, then enjoining Speedy Cash from issuing

such loans would benefit the general public by preventing the threat of future 

injury. See Blair, 928 F.3d at 830-31 & n.3 (holding that the plaintiffs sought

public injunction by seeking to enjoin the defendant from offering contracts with 

unlawful terms). With the facts and law before it, the district court correctly held

that McGill voids the arbitration provision’s public injunction waiver. 

During this appeal, however, a California statute took effect that prohibits

finance lenders from issuing loans between $2,500 and $10,000 with charges over 

36% calculated as an annual simple interest rate (plus the prior month’s Federal 

Funds Rate). See Cal. Fin. Code § 22304.5(a) (effective January 1, 2020). As 

pleaded, Plaintiffs seek to enjoin Speedy Cash from issuing loans above $10,000, 

but neither of the named Plaintiffs executed loans greater than $10,000, and the 
4 

operative complaint does not specifically allege that Speedy Cash issued or 

continues to issue loans greater than $10,000. Whether the injunction would

prevent a threat of future harm is therefore questionable. Cf. Kilgore v. KeyBank, 

Nat’l Ass’n, 718 F.3d 1052, 1062 (9th Cir. 2013) (en banc) (concluding that “[t]he 

injunctive relief sought . . . for all practical purposes, relates only to past harms 

suffered by the members of the limited putative class” when the plaintiff alleged

that the defendant no longer engaged in the unlawful conduct). Because this 

intervening law possibly impacts the analysis, we remand to the district court.

1

 See

White Mountain Apache Tribe v. Ariz., Dep’t of Game & Fish, 649 F.2d 1274, 

1285-86 (9th Cir. 1981).

2. Although we remand for the limited purpose discussed above, we 

address the other issues presented in this appeal. See United States v. Mancuso, 718 

F.3d 780, 796 (9th Cir. 2013). Speedy Cash maintains that, even if Plaintiffs seek 

public injunctive relief, the Federal Arbitration Act (“FAA”) preempts McGill. But 

in Blair, this court held that “the FAA does not preempt the McGill rule” because it 

is a generally applicable defense under the FAA’s savings clause, 9 U.S.C. § 2. 928 

F.3d at 830-31. We are bound by Blair, see United States v. Baldon, 956 F.3d 1115, 

1 To be clear, we agree with the district court’s analysis on this issue but 

remand for it to consider what effect, if any, California Financial Code 

§ 22304.5(a) has on its analysis. If it has no such effect, then as the district court 

held, McGill voids the loan agreement’s waiver clause, which, in turn, invalidates 

the arbitration provision in full. 
5 

1121 (9th Cir. 2020), and therefore agree with the district court on this issue. 

3. Speedy Cash also contends that the district court erred in applying 

California law to determine the enforceability of the arbitration provision because 

the loan agreement designates Kansas law as controlling. Under California’s 

choice of law rules, we must first determine whether the selected state “has a 

substantial relationship to the parties or their transaction, or . . . whether there is 

any other reasonable basis for the parties’ choice of law.” Ruiz v. Affinity Logistics 

Corp., 667 F.3d 1318, 1323 (9th Cir. 2012) (alteration in original) (quoting 

Nedlloyd Lines B.V. v. Superior Court, 834 P.2d 1148, 1152 (Cal. 1992)). Even if 

the designated state has a substantial relationship to the parties or their transaction, 

we may not enforce the choice of law provision if (1) the substantive law of 

Kansas is “contrary to a fundamental policy of California” and (2) California has a 

“materially greater interest” than Kansas in resolving the issue. Wash. Mut. Bank, 

FA v. Superior Court, 15 P.3d 1071, 1079 (Cal. 2001). 

Kansas has the requisite substantial relationship because Speedy Cash 

maintains its corporate headquarters in Kansas. See Peleg v. Neiman Marcus Grp., 

Inc., 140 Cal. Rptr. 3d 38, 53 (Ct. App. 2012). We conclude, however, that Kansas 

law is contrary to California policy and that California holds a materially greater 

interest in this litigation. The parties negotiated and executed the contracts in 

California, Plaintiffs reside in California, Speedy Cash has over thirty stores in 
6 

California, and California law invalidates contractual waivers of the right to seek 

public injunctive relief in all forums. See Ruiz, 667 F.3d at 1324 (listing factors). 

Accordingly, the district court correctly applied California law.

The parties shall bear their own costs on appeal.2

VACATED AND REMANDED. 

2 Plaintiffs request that the court take judicial notice of three documents: 

(1) an exhibit to the complaint in Blair, (2) a proof of claim filed by Speedy Cash, 

and (3) the American Arbitration Association’s Consumer Arbitration Rules. See 

Dkt. 18. Because these documents are unnecessary to resolve this appeal, we deny 

the request. See Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 

1022, 1025 n.2 (9th Cir. 2006).