American Express Co. v. Italian Colors Restaurant: SCOTUS Grants Certiorari in Class Action Waiver Case

In In re American Express Merchants' Litigation, 667 F.3d 204 (2d Cir. 2012), the Second Circuit Court of Appeals invalidated an arbitration clause in a credit card agreement where it found that the clause would effectively preclude the plaintiffs from pursuing claims under the federal antitrust law. The court distinguished Concepcion on grounds that Concepcion addressed the relationship between the FAA and state law, while the case before it raised federal statutory claims. The court cited several cases invalidating arbitration clauses where it was shown that a class action waiver would preclude the plaintiffs from pursuing individual federal statutory actions. The Second Circuit found that Concepcion did not overrule those decisions. 

The Supreme Court granted cert. on November 9, sub nom American Express Co. v. Italian Colors Restaurant (Case No. 12-133).  The issue presented is as follows:  

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 Court's docket is here.  The Second Circuit opinion is here, and SCOTUSblog has a web page for the case here.  I have added the case to our Watch List and we will do a webinar on it when the Court issues its decision next year.