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American Express v. Italian Colors: Supreme Court Says Basta! to Plaintiffs Seeking to Dodge Arbitration Agreements

Recorded on: Jul. 23, 2013
Running Time: 01:04:28

Taken from the briefing American Express v. Italian Colors: Supreme Court Says Basta! to Plaintiffs Seeking to Dodge Arbitration Agreements 2013 recorded July, 2013.

On June 20, 2013, the Supreme Court of the United States re-visited the question of the extent to which a party to an otherwise enforceable arbitration agreement could wriggle free from the arbitrability requirement. The decision – American Express Co. v. Italian Colors Restaurant – builds on a recent line of pro-arbitration rulings – including Stolt-Nielsen, S.A. v. Animal Feeds Int’l Corp. and AT&T Mobility LLC v. Concepcion – and reaffirms the Court’s commitment to enforcing arbitration agreements. In a 5-3 opinion by Justice Scalia, the Court held in Italian Colors that a contractual provision mandating individual arbitration by means of a class action waiver is enforceable under the Federal Arbitration Act (FAA), even if the costs of individual arbitration outweigh the potential recovery. Plaintiffs had argued that the costs of individual arbitration were so high that they would not be able to “effectively vindicate” their federal statutory rights under the antitrust laws. But the Supreme Court shut the door on plaintiffs’ repeated efforts to push for the application of this “effective vindication” exception that had been crafted by lower courts (including those in the Second Circuit). That exception had its origins in dicta and had never been applied by the Supreme Court.

This briefing was conducted by Michael B. Miller, a litigation partner in the New York office of Morrison & Foerster LLP. Mr. Miller has significant experience litigating antitrust, privacy, and large commercial cases in federal and state courts. He has experience both in litigating in the arbitrable forum, and in moving to compel arbitration where one party seeks to avoid their agreement to arbitrate by filing a complaint in federal or state court (including in the Second Circuit, whose decision the Italian Colors Court reversed). He will address the opinion in Italian Colors and its implications for arbitrability disputes and especially class litigation going forward.

Lecture Topics  [Total Time: 01:04:28]

  • How the Italian Colors Court changed or reinforced existing law
  • What’s left for those seeking to avoid arbitration agreements
  • What you need to know to draft enforceable arbitration agreements
  • Possible litigation and regulatory responses
  • What this likely means for various industries given the use of arbitration clauses in various types of agreements

Presentation Material

  • American Express v. Italian Colors: The Supreme Court Reaffirms Its Commitment to Enforcing Arbitration Agreements
  • American Express v. Italian Colors Restaurant
Speaker(s)
Michael B. Miller ~ Morrison & Foerster LLP

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