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Can Plaintiffs Dodge Concepcion By Arguing That They Need Class Actions To Vindicate Federal Statutory Claims?

Posted in Arbitration, U.S. Supreme Court

Since Concepcion, the plaintiffs’ bar has been searching for ways to avoid agreements to arbitrate on an individual basis. Because their efforts have largely failed so far, the new frontrunner is the argument that class procedures are necessary to permit “vindication of federal statutory rights.” Most courts to consider the argument have rejected it, but it has gained some real traction in the Second Circuit, which refused to enforce American Express’s arbitration agreement in the context of federal antitrust claims by a group of merchants. After the Second Circuit denied en banc review by a sharply divided vote, American Express filed a petition for certiorari (pdf).  The case in the Supreme Court is captioned  American Express Co. v. Italian Colors Restaurant, No. 12-133.

My colleagues and I—led by Andy Pincus, who argued Concepcion—recently filed an amicus brief (pdf) supporting the petition for certiorari on behalf of the Chamber of Commerce of the United States of America, the Business Roundtable, the American Bankers Association, and the National Association of Manufacturers. We argue that the decision cannot be squared with Concepcion and that, if accepted, would cause the Second Circuit to become a magnet jurisdiction for class-action plaintiffs seeking to enforce their arbitration agreements. Law360 has written an article (subscription required) that highlights some of the key arguments in the brief.  And our co-counsel at the National Chamber Litigation Center have also discussed the amicus brief on their web site.