June 20, 2013
The Supreme Court released today its eagerly-awaited decision (at least in the ADR world) in AMEX v. Italian Colors. In overturning the Second Circuit’s refusal to enforce a class action waiver on the ground that plaintiffs could not vindicate their statutory rights under the federal antitrust laws, the Court, in a 5-3 opinion authored by Justice Scalia (public enemy #1 of class arbitation), eliminated virtually the only viable doctrine remaining to litigants to challenge class action waivers in consumer contracts.
While the Court recognized the validity of the vindicating rights doctrine generally, it held that, in this case, the “fact that it is not worth the expense involved in proving a statutory remedy does not constitute the elimination of the right to pursue that remedy.” Because the class action waiver in the merchants’ credit card services agreement with American Express did not eliminate the right to pursue individual claims under the antitrust laws, the Court deemed the waiver enforceable. Of course, the right to pursue a remedy is meaningless and hollow if, as a practical matter, it is not financially possible to pursue.
More detailed analysis to follow, particularly of Justice Kagan’s scathing dissent.
Last 5 posts by Jill Gross
- Updates on current and former FINRA Dispute Resolution executives - December 15th, 2014
- Symposium at Cardozo Asking (and perhaps Answering) "Is Mediation a Sleeping Beauty? - October 15th, 2014
- PIABA Releases Study Criticizing Lack of Diversity of FINRA Arbitrator Pool - October 7th, 2014
- Linda Fienberg To Retire from FINRA Dispute Resolution - October 7th, 2014
- Second Circuit Holds Forum Selection Clause Trumps FINRA Arbitration Requirement - August 21st, 2014