NOT FOR PUBLICATION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 Spee dy Cash appeal s the district court’s order denying its motion to compel arbitra t ion 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 APPEALS2

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. , 8 62 F.3d 951, 959 (9th Cir. 2017)

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

an a rbitration p rovision in loan agreements that included a waiver of the
borrower’s right to seek public injunctive relief in all forums . The district court
concluded t hat the Plaintiffs

- Appell ees request ed 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 Consumer s Legal Remedies Act (“CLRA”), Plaintiffs requested an injunction barring Speedy Cash from issuing loans greater than $2,500 with an annual percentage rate of i nterest (“APR”) over 90% and requir ing 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 i n unlawful conduct that threatens future
harm. Based on the record and law as it stood at th e time of the district court’s
order , we agree.
I n McGill , the California Supreme Court held that a contract ual waive r of a statutory righ t to seek public injuncti ve relief in all forums is contrary to California3

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 t hat a public injunct ion under the UCL and CLRA is cabined to prevent ing decepti ve advertising and marketing

. But McGill explained that public injuncti ve relief under the UCL and CLRA aim s 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 futur e injury

. See Blair , 928 F.3d at 830

- 31 & n. 3 (holding that the plaintiffs sought public injuncti on by seeking to enjoin the defendant from offer ing contracts with
unlawful term s)

. With the facts and law before it, the district court correctly held
that McGill voids the a rbitration p rovision’s public injunction waiver

. D uring this appeal, however, a California statute took effect that p rohibit s finance lenders from issuing loans between $2,500 and $10,000 with charges over 36% calculated as an annual simple interest rate (plus the p rior month’s Federal Funds Rate). See Cal. Fin. Code § 22304.5(a) (effective Jan uary 1, 2020)

. As pleaded , Plaintiffs seek to enjoin Speedy Cash from issuing loans above $10,000 , b ut neither of the named Plaintiffs executed loans greater than $10,000, and the4

operative complaint does not specifically allege that Speedy Cash issued or
continues to issue loans greater than $10,000. W hether the injunction would
prevent a threat of future harm is therefore questionable

. Cf. Kilgore v. KeyBank,
N at’l Ass’n , 718 F.3d 1052, 1062 (9th Cir. 2013) (en banc) (c onclud ing that “[t]he injunctive relief sought . . . for all practical purposes, relates only to past harms suffered by the members of th e 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 reman d 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. 201 3). Spe edy Cash maintains that , even if Plaintiffs seek public injunctive relief, the Federal Arbitration Act (“FAA”) preempts McGill

. But
i n 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 8 30

- 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 a rbitration p rovision in full.5

1121 (9th Cir. 2020), and therefore agree with the district court on this i ssue
. 3. Speedy Cash also contends that the district court erred in applying
California law to determine the enforceability of the a rbitration p rovision because
the loan agreement designate s Kansas law as controlling

. Under California’s
choice of law rules, we must first determine whether the selected stat e “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 i f 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

. T he parties negotiated and executed the contracts in
California , Plaintiffs reside in California, Speedy Cash h as over thirty stores in6

California, and California law invalidates contractual waivers of the right to seek public injunctiv e 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 Rul es. 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).