Scarinci Hollenbeck, LLC
The Firm
201-896-4100 info@sh-law.comFirm Insights
Author: Scarinci Hollenbeck, LLC
Date: July 12, 2013
The Firm
201-896-4100 info@sh-law.comIn American Express Co. v. Italian Colors Restaurant, the U.S. Supreme Court continued its trend of strictly enforcing arbitration provisions at the peril of class-action claims.
By a vote of 5-3, the majority held that the Federal Arbitration Act (FAA) does not permit courts to invalidate a contractual waiver of class arbitration on the ground that the plaintiff’s cost of individually arbitrating a federal statutory claim exceeds the potential recovery. The decision reinforced AT&T Mobility v. Concepcion, the controversial 2011 decision in which the Court ruled that the FAA pre-empts state laws prohibiting the waiver of class arbitration in consumer contracts.
The Facts of the Case
The dispute centered on an agreement between American Express Co. and a group of merchants who accept American Express cards. The contract requires all disputes to be resolved by arbitration and provides that there “shall be no right or authority for any Claims to be arbitrated on a class action basis.” The merchants nonetheless filed a class action, claiming that petitioners violated the Sherman Act. American Express moved to compel individual arbitration under the FAA, but the merchants argued that the cost of expert analysis necessary to prove the antitrust claims would greatly exceed the maximum recovery for an individual plaintiff.
The Supreme Court’s Decision
The majority began its analysis by highlighting the overarching principle that arbitration is a matter of contract. Moreover, courts should strictly enforce such agreements absent a Congressional mandate that trumps the FAA.
The majority further rejected the “effective vindication” exception established in Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc. As explained by Justice Antonin Scalia, “The exception comes from a desire to prevent ‘prospective waiver of a party’s right to pursue statutory remedies’; but 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.”
“AT&T Mobility LLC v. Concepcion all but resolves this case,” the majority further explained. “There, in finding that a law that conditioned enforcement of arbitration on the availability of class procedure interfered with fundamental arbitration attributes, the Court specifically rejected the argument that class arbitration was necessary to prosecute claims ‘that might otherwise slip through the legal system.’”
The Real World Implications
The practical result is that arbitration provisions waiving class action will be enforced regardless of whether or not individual action is too expensive or inconvenient. The only way to avoid such a provision is to invalidate the agreement as unconscionable or otherwise unenforceable under state law, which is generally an uphill battle.
If you have any questions about this case or would like to discuss the legal issues involved, please contact me, Christine Vanek, or the Scarinci Hollenbeck attorney with whom you work.
No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Few situations create more uncertainty than learning that an employee has filed a whistleblower complaint. Questions arise immediately: Is the allegation legitimate? Should the employee be placed on leave? Do we need to notify our insurance carrier? Are we now prevented from disciplining the employee if there are unrelated ongoing work related issues? There is […]
Author: Sean M. Pena

When a business reaches the point where it can no longer service its debts or otherwise resolve its liabilities, management is often faced with a difficult question: is a bankruptcy filing necessary or is there another way to perform an orderly liquidation or sale of the business assets? While Chapters 7 and 11 of the […]
Author: John D. Giampolo

For many years, the New Jersey Mansion Tax has been a significant consideration in high-value real estate transactions. Recent legislative changes, however, have substantially altered how the tax operates, including who is responsible for paying it and the amount owed in certain transactions. Whether you are purchasing, selling, or investing in New Jersey real estate, […]
Author: George McGowan

As our personal and financial lives increasingly move online, estate planning must evolve to address a new category of property: digital assets. From email accounts and social media profiles to cryptocurrency and cloud-stored business records, these assets often carry both financial and sentimental value. Yet, without proper planning, they can become inaccessible—or even lost—upon incapacity […]
Author: Marc J. Comer

In today’s mergers and acquisitions market, representation and warranty (R&W) insurance has become a common feature of deal negotiations. Once used primarily in larger transactions, R&W insurance is now frequently incorporated into middle-market deals as buyers and sellers look for efficient ways to allocate risk and close deals. When structured properly, R&W insurance can help […]
Author: George McGowan

Receiving a federal grand jury subpoena is not something most businesses or individuals anticipate. While it can be concerning, a federal grand jury subpoena does not necessarily mean that you are being accused of wrongdoing. It does, however, mean that a federal criminal investigation is underway and that federal prosecutors believe you may possess information […]
Author: Sean M. Pena
No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.
Consider subscribing to our Firm Insights mailing list by clicking the button below so you can keep up to date with the firm`s latest articles covering various legal topics.
Stay informed and inspired with the latest updates, insights, and events from Scarinci Hollenbeck. Our resource library provides valuable content across a range of categories to keep you connected and ahead of the curve.
Let`s get in touch!
Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!