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ARBITRATION: Following up on Amex (June 4).

Here’s what they are saying around the Web about last week’s big arbitration decision, In re: American Express Merchants’ Litig., Docket No. 06-1871-cv (May 29, 2012), in which the Second U.S. Circuit Court of Appeals denied a request for rehearing en banc over three dissenting opinions (full details here):

The decision is “Cementing a split in the circuits that makes review by the U.S. Supreme Court all the more likely, . . .” Quoted in Mark Hamblett, “Circuit Declines En Banc Review in Amex Arbitration Case,” N.Y. Law Journal (May 30)(available here).

Gary Friedman, counsel for the plaintiff merchants at New York’s Friedman Law Group: “I think it’s premature to assume that certiorari will be granted,” adding, “I just wouldn’t jump to that conclusion.” Id.  

Paul Bland of Washington, D.C., consumer group Public Citizen: “If the Supreme Court overturns this decision, it will be forced to say that it believes that the [Federal] Arbitration Act is just more important than antitrust laws. I wouldn’t be surprised to see the Supreme Court refuse to hear the case.” Quoted in Alison Frankel, “A Return Ticket to SCOTUS? The 2nd Circuit Declines to Rehear AmEx Decision”, Thomson Reuters News & Insight (May 31)(available here).

A representative for American Express said the company intends to file a petition for certiorari. Id.

Andrew Pincus, partner in the Washington, D.C., office of Mayer Brown: Given the number and vigorousness of the dissents, and the express reference to a conflict with the Ninth Circuit, the Supreme Court will probably hear the case, because the Second Circuit’s approach would apply in, but not limited to, all federal antitrust cases, as exemplified in a case currently pending in the Eighth Circuit and three district court decisions involving employment claims in the Second Circuit. See “A Return Ticket to SCOTUS? The 2nd Circuit Declines to Rehear AmEx Decision,” linked above; for further information on Mayer Brown’s position on this issue, see “Enforceability of Arbitration Agreement in Antitrust Context Sharply Divides Second Circuit” (available here).

Marc J. Goldstein: The class action waiver should not be equated with an explicit waiver of the right to sue for violation of the antitrust laws, because it may be possible for the claimants to overcome the cost barrier by bringing consolidated, but not class, arbitration claims and resolving the issue in an aggregated proceeding, or by agreeing to use and share the cost of a single set of expert reports. If the Supreme Court grants certiorari, it would be interesting to see how the Court defines the issues and factual premises of this potentially landmark case. “Amex Class Arbitration Case Takes Stride Toward Supreme Court Review” (May 31)(available here).

--Collected by Congsi Wu, CPR Intern