                                                                  FILED
                            FOR PUBLICATION                        SEP 21 2012

                                                               MOLLY C. DWYER, CLERK
                 UNITED STATES COURT OF APPEALS                 U .S. C O U R T OF APPE ALS




                        FOR THE NINTH CIRCUIT



MATTHEW C. KILGORE, individually           No. 09-16703
and on behalf of all others similarly
situated; WILLIAM BRUCE FULLER,            D.C. No. 3:08-cv-02958-TEH
individually and on behalf of all others
similarly situated,

           Plaintiffs - Appellees,         ORDER

 v.

KEYBANK, NATIONAL
ASSOCIATION, successor in interest to
KeyBank USA, N.A.; KEY
EDUCATION RESOURCES, a division
of KeyBank National Association;
GREAT LAKES EDUCATION LOAN
SERVICES, INC., a Wisconsin
corporation,

           Defendants - Appellants.
MATTHEW C. KILGORE, individually                 No. 10-15934
and on behalf of all others similarly
situated; WILLIAM BRUCE FULLER,                  D.C. No. 3:08-cv-02958-TEH
individually and on behalf of all others
similarly situated,

              Plaintiffs - Appellants,

  v.

KEYBANK, NATIONAL
ASSOCIATION, successor in interest to
KeyBank USA, N.A.; KEY
EDUCATION RESOURCES, a division
of KeyBank National Association;
GREAT LAKES EDUCATION LOAN
SERVICES, INC., a Wisconsin
corporation,

              Defendants - Appellees.



KOZINSKI, Chief Judge:

       Upon the vote of a majority of nonrecused active judges, it is ordered that

this case be reheard en banc pursuant to Federal Rule of Appellate Procedure 35(a)

and Ninth Circuit Rule 35-3. The three-judge panel opinion shall not be cited as

precedent by or to any court of the Ninth Circuit.
