The following excerpt is from Kilgore v. KeyBank, Nat'l Ass'n, D.C. No. 3:08-cv-02958-TEH, No. 09-16703, No. 10-15934 (9th Cir. 2013):
9. The Note also includes a clause preventing disclosure of any arbitration award. Although we have found confidentiality provisions to be substantively unconscionable when applied to a large class of customers, Ting v. AT&T, 319 F.3d 1126, 1151-52 (9th Cir. 2003), the small number of putative class members in this case (approximately 120) mitigates such concerns. In any event, the enforceability of the confidentiality clause is a matter distinct from the enforceability of the arbitration clause in general. Plaintiffs are free to argue during arbitration that the confidentiality clause is not enforceable.
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