Supreme Court Grants Certiorari In American Express Arbitration Case

Keywords: antitrust, Arbitration, AT&T Mobility LLC v. Concepcion, American Express Merchants, Litigation, Second Circuit

The Supreme Court has just granted certiorari in American Express Co. v. Italian Colors Restaurant, No. 12-133.   Earlier today, my colleague Andy Pincus previewed the issue presented to the Court, which is (in a nutshell) whether plaintiffs may avoid their agreements to arbitrate on an individual rather than class-wide basis by contending that they cannot "effectively vindicate" their federal claims without the use of the class device.

Since AT&T Mobility LLC v. Concepcion, the majority of courts have enforced arbitration agreements that waive class actions.   But a distinct minority of courts, relying on the Second Circuit's decision in In re American Express Merchants' Litigation (the decision under review by the Supreme Court), have refused to enforce such agreements.  According to the Second Circuit (and courts adopting its reasoning), a