Although arbitration features regularly on the Supreme Court’s docket, a number of significant cases have been before the Court recently. The gist of these rulings is a continued pro-arbitration approach, consistent with the Federal Arbitration Act (FAA), 9 U.S.C. § 1. The Supreme Court also confirmed that parties to an arbitration contract are bound by the words of that contract. In addition, by denying certiorari in the Delaware Coalition for Open Government v. Strine case, the Court struck a blow to efforts by Delaware to entice litigants to bring commercial disputes to the state through a confidential arbitration program. The refusal to grant cert in the Delaware case indicates that, at least for now, there are some limits on confidential arbitration programs administered by courts. This article discusses the lessons of these cases for business litigators who frequently find themselves involved in arbitrations.

Contractual Class Arbitration Waivers after Concepcion

Retail businesses swiftly adapted their consumer contract language to include class arbitration waivers after the Court’s decision in AT&T Mobility, LLC v. Concepcion, 563 U.S. 321 (2011). In the 2013 term, the Supreme Court made clear in American Express Co. v. Italian Colors Restaurant, 133 S. Ct. 2304 (2013), that class arbitration waivers are here to stay and do not offend notions of fairness. The American Express case involved merchants who accepted American Express cards as a form of payment and claimed that American Express violated the Sherman Act and used its monopoly power to force them to pay much higher fees than the fees for competing credit cards. Id. at 2308.

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