Concepcion’s class arbitration prohibition also applies to antitrust cases

The U.S. Supreme Court has ruled that AT&T v. Concepcion wasn’t merely about preemption by the Federal Arbitration Act.  It goes all the way — and as long as a statute does not call for or expressly allow class resolution of claims brought under it (which statute does that anyway?), a class arbitration waiver is in principle enforceable, according to yesterday’s 5-3 decision in American Express Co. et al. v. Italian Colors Restaurant et al., case number 12-133.

Class plaintiffs who attempt to rely on the theory that “effective vindication” of their federal statutory rights would be thwarted by upholding a class waiver in arbitration agreements will likely fail, post-Italian Colors.  Held Justice Scalia curtly: “[T]he antitrust laws do not guarantee an affordable procedural path to the vindication of every claim.”  The judge-made “effective vindication” argument “would certainly cover a provision in an arbitration agreement forbidding the assertion of certain statutory rights. And it would perhaps cover filing and administrative fees attached to arbitration that are so high as to make access to the forum impracticable.  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.”

The case marks a high point (for some, a low point) in the contra-class trend of the last several years, giving further ammunition to those who had already thought that Concepcion would mark the de facto end of class arbitration of disputes — the expectation there is that every company that had an arbitration clause in its contracts would simply amend it to prohibit class arbitrations, thereby effectively circumventing the often sole affordable mechanism for low-value (but numerous) claims.  Credit cards or debit swipe fees (small, but there are billions of them every day) are but one example.  And since Italian Colors, antitrust is now explicitly in the mix!  In the words of Justice Kagan — whose scorn for the majority opinion is best expressed by her as “a betrayal of our precedents, and of federal statutes like the antitrust laws” for a plaintiff attempting to vindicate his federal Sherman Act rights to proceed in a low-dollar value case on a non-class basis may well have become a “fool’s errand” post-Italian Colors.

 

UPDATE: See also the Paul Hastings client alert on American Colors here.

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