Big Business Wins—Court OKs Antitrust Class Action Waivers

, New York Law Journal

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Melvyn B. Ruskin and Natasha A. Moskvina
Melvyn B. Ruskin and Natasha A. Moskvina

19 In re Am. Express Merchants' Litig., 667 F.3d at 209.

20 In re Am. Express Merchants' Litig., 554 F.3d at 320. Judge Rosemary Pooler wrote for a unanimous three-judge panel, which included Judge Sonia Sotomayor. Sotomayor was subsequently elevated to the Supreme Court but did not participate in the ultimate resolution of this case by the high court. Had she participated, the case would presumably have been decided the same way by a 5-4 vote.

21 In re Am. Express Merchants' Litig., 130 S.Ct. 2401 (2010).

22 In re Am. Express Merchants' Litig., 667 F.3d 204.

23 Id. at 219.

24 The Second Circuit court, in reconsidering plaintiff's appeal of a district court decision granting American Express' motion to compel arbitration, limited its query as to whether the class action waiver provision contained in the contract between the parties should be enforced. In re American Express Merchants' Litig., 667 F.3d at 207.

25 President Ronald Reagan appointed Scalia to the Supreme Court in 1986 and Justice Anthony Kennedy in 1988; President George H.W. Bush appointed Thomas in 1991; and President George W. Bush appointed Roberts in 2005 and Alito in 2006.

26 President Bill Clinton appointed Ginsburg to the Supreme Court in 1993 and Breyer in 1994; President Barack Obama appointed Sotomayor in 2009 and Kagan in 2010.

27 Indeed, the writers of this article recently encountered such clauses in apparent contracts of adhesion between health insurance companies and network physician providers. These clauses even prohibit consolidation of separately brought arbitrations. Query whether the pro business high court would enforce the "no consolidation" clause where consolidation would avoid duplicate proceedings and minimize the cost to potentially injured individual plaintiffs. We note that practical considerations of costs will make it unlikely that claimants will ever test this issue in the courts.

28. Am. Express Co., 133 S.Ct. at 2313.

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