FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ILIANA PEREZ, an individual, on No. 22-15322 behalf of themselves and all others similarly situated, D.C. No. Plaintiff-Appellee, 3:20-cv-06896-SI and OPINION FLAVIO GUZMAN MAGANA, an individual, on behalf of themselves and all others similarly situated; JOSUE JIMENEZ MAGANA, Plaintiffs, v. DISCOVER BANK, Defendant-Appellant. Appeal from the United States District Court for the Northern District of California Susan Illston, District Judge, Presiding Argued and Submitted April 12, 2023 San Francisco, California Filed July 24, 2023 2 PEREZ V. DISCOVER BANK Before: Sidney R. Thomas and Holly A. Thomas, Circuit Judges, and Jed S. Rakoff,* District Judge. Opinion by Judge S.R. Thomas SUMMARY** Arbitration The panel affirmed the district court’s order declining to compel plaintiff Iliana Perez to arbitrate her claims that Discover Bank unlawfully discriminated against her based on her citizenship and immigration status when it denied her application for a consolidation loan for her student loan. Discover Bank asserted that two arbitration agreements—one Perez made in 2010 in connection with her student loan from Citibank and one she made in 2018 in connection with the application for the consolidation loan with Discover Bank—required arbitration. Discover Bank acquired ownership of the Citibank loan around October 1, 2011, and currently holds the note. Before the district court, Discover Bank initially argued that its agreement with Perez was not unconscionable because if Perez sent an opt out, she would not be bound by the agreement’s arbitration provision. Shortly thereafter * The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. PEREZ V. DISCOVER BANK 3 Perez notified Discover Bank that she wished to reject the arbitration agreement. The district court found that Perez’s opt out of the Discover Bank agreement applied to her discrimination claims and that the discrimination claims were outside the scope of the Citibank agreement. The panel held that Discover Bank was judicially estopped from arguing that Perez did not opt out of the Discover Bank agreement. The panel determined that Discover Bank’s past position clearly contradicted its current position that the opt out would only apply to Perez’s future discrimination claims, Discover Bank persuaded the court to accept its previous position, and Discover Bank would derive an unfair advantage absent estoppel. Citing Revitch v. DIRECTV, LLC, 977 F.3d 713 (9th Cir. 2020), the panel further held that Perez and Discover Bank never formed an agreement to arbitrate her discrimination claims involving her application for a consolidation loan via the Citibank agreement. COUNSEL Julia B. Strickland (argued), Arjun P. Rao, David W. Moon, and Ali Fesharaki, Stroock & Stroock & Lavan LLP, Los Angeles, California, for Defendant-Appellant. Thomas A. Saenz (argued) and Deylin O. Thrift-Viveros, Mexican American Legal Defense and Educational Fund, Los Angeles, California; Jahan C. Sagafi and Moira Heiges- Goepfert, Outten & Golden …
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals