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.
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