Supreme Court Continues Down Pro-Arbitration Road
June 12, 2014

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...

Federal Cases Addressing Arbitrability Continue to Change the Landscape
June 2, 2014

The U.S. Supreme Court’s landmark decision last June in American Express v. Italian Colors, ___ U.S. __, 133 S. Ct. 2304, 186 L. Ed. 2d 417 (2013), like its earlier decision in AT&T Mobility LLC v. Concepcion, 563 U.S. ___, 131 S. Ct. 1740, 179 L. Ed. 2d 742 (2011), solidified the broad deference given to arbitration agreements by the Supreme Court and reinforced the principle that state laws and policies invalidating arbitration agreements and class-action waivers are preempted by the Federal...

Court OKs Antitrust Class Action Waivers in Arbitration Clauses
March 13, 2014

After years of ambiguity about the enforceability of contract clauses mandating arbitration and waiving class action rights in domestic antitrust cases, the U.S. Supreme Court has finally brought clarity to the situation. In June 2013 the court decided American Express v. Italian Colors Restaurant, holding that arbitration clauses and waivers of class action rights are enforceable in domestic antitrust cases. Regardless of whether one agrees with the court's conclusion, the American Express...

Second Circuit Enforces Class Waiver in Arbitration Clause Following American Express
August 9, 2013

CONCLUSION To summarize, we hold that: (1) The Fair Labor Standards Act of 1938 does not include a “contrary congressional command” that prevents a class-action waiver provision in an arbitration agreement from being enforced by its terms; and (2) In light of the Supreme Court’s recent decision in American Express Co. v. Italian Colors Restaurant, 133 S. Ct. 2304 (2013), Sutherland’s argument that proceeding individually in arbitration would be “prohibitively expensive” is not a sufficient...

U.S. Supreme Court Seems Poised to Compel Arbitration — Again
March 5, 2013

SCOTUSblog has linked to the transcript from yesterday's oral arguments in American Express Co. v. Italian Colors Restaurants.  SCOTUSblog, as always, has full materials on the case here.  The issue in the case is: 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 plaintiffs in the case are merchants who claim...

DOJ to SCOTUS: Don’t Enforce Arbitration Agreement Invalidating Statutory Rights
March 4, 2013

On January 29, the U.S. Dept. of Justice filed an amicus brief supporting respondents in AmEx III, arguing that to enforce the class arbitration waiver would be to create a large loophole for important federal laws.  The Solicitor General has also asked to argue at the hearing on February 27.  To my knowledge, DOJ has never previously weighed in on an arbitration case before the U.S. Supreme Court. The issue in AmEx is whether American Express can enforce its arbitration agreement, which...

American Express v. Italian Colors Restaurant Oral Argument Report
February 28, 2013

I read with interest the transcript of today’s oral argument in the highly anticipated American Express v. Italian Colors...