American Express Co. v. Italian Colors Restaurant: SCOTUS Hears Oral Argument in Arbitration Class Action Waiver Case

The Supreme Court of the United States yesterday heard oral argument in American Express Co. v. Italian Colors Restaurant (Case No. 12-133), in which the Court will decide the following issue: 

Whether the Federal Arbitration Act permits courts, invoking the “federal substantive law of arbitrability,” to invalidate arbitration agreements on the ground that they do not permit class arbitration of a federal-law claim. 

The Second Circuit's opinion in In re American Express III 667 F.3d 204 (2d Cir. 2012) is here. In a series of three decisions, the Second Circuit has held: (1) the class action waiver at issue is unenforceable "because enforcement of the clause would effectively preclude any action seeking to vindicate the statutory rights asserted by the plaintiffs;" and (2) the Supreme Court's decisions in Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp. and AT & T Mobility LLC v. Conception do not affect that conclusion. 

Justice Sotomayor recused herself from the case because she sat on the Second Circuit panel that issued the first of the three decisions, In re American Express I, 554 F.3d 300 (2d Cir. 2009). 

The Supreme Court's docket is here, and SCOTUSblog has a web page for the case here.

The case is on our Watch List of Pending Cases, and the State Bar of California will present a webinar on it when the Court issues its decision.