Italian Colors Restaurant v. American Express Travel Related Services Co. (2011)

In re American Express Merchants’ Litigation, 634 F. 3d 187, 200 (CA2 2011).

We plainly acknowledged in Amex II that we could not, and thus were not, ordering the parties to participate in class arbitration. 634 F.3d at 200 (" Stolt-Nielsen plainly precludes us from ordering class-wide arbitration."). *214 What Stolt-Nielsen and Concepcion do not do is require that all class-action waivers be deemed per se enforceable.

We plainly acknowledged in Amex II that we could not, and thus were not, ordering the parties to participate in class arbitration. 634 F.3d at 200 (“Stolt-Nielsen plainly precludes us from ordering class-wide arbitration.”).

The District Court also stated its view that the “effective vindication doctrine” and our decision in In re American Express Merchants’ Litigation, 634 F.3d 187, 196 (2d Cir.2011) (“Amex II”), “require that if any one potential class member meets the burden of proving that his costs preclude him from effectively vindicating his statutory rights in arbitration, the clause is unenforceable as to that class or collective.” Raniere, 827 F.Supp.2d at 317 .

Express Merchants’ Litig.), 634 F.3d 187, 198 (2d Cir.2011) (finding that plaintiffs met their burden by submitting a detailed expert affidavit stating that their expert-witness fees would total at least $300,000).

Express Merchs. ’ Litig., 634 F.3d 187, 199 (2d Cir.2011) (Amex II).

Express Merchs. ' Litig., 634 F.3d 187, 199 (2d Cir.2011) ( Amex II ).

Am. Express Co. v. Italian Colors Rest., — U.S. -, 130 S.Ct. 2401 , 176 L.Ed.2d 920 (2010), reaff'd, 634 F.3d 187 (2d Cir.2011) (“Ato.

American Express Co. v. Italian Colors Rest., — U.S. —, 130 S.Ct. 2401 , 176 L.Ed.2d 920 (2010), reaff'd, 634 F.3d 187, 196 (2d Cir.2011) (“American Express II”); Ragone v. Atlantic Video at the Manhattan Center, 595 F.3d 115, 125 (2d Cir.2010).

Express Merchants’ Litig., 634 F.3d 187, 194 (2d Cir.2011); see, e.g., Phillips Petro.

Express Merchants’ Litig., 634 F.3d 187, 197-198 (2d Cir. 2011) (Amex II) (adhered to on rehearing in light of Concepcion by Amex III).

Litig. (“AmEx II"), 634 F.3d 187, 196 (2d Cir.2011), adhered to on rehearing, 667 F.3d 204 (2d Cir.2012), cert. granted sub. nom.

Litig. (“Amex II”), 634 F.3d 187, 189 (2d Cir.2011).

Id. at 194,197 .

Express Merchants’ Litig., 634 F.3d 187, 194 (2d Cir. 2011).

Litig., 634 F.3d 187, 196-200 (2d Cir.2011) (“Amex II”) (affirming Amex I on remand, based on analysis of interplay between limitations presented by arbitration clause and federal antitrust laws); In re Am.

In re American Express Merchants’ Litigation, 634 F.3d 187, 197-99 (2d Cir.2011) (“AMEX II”).

Express Merchants’ Litig., 634 F.3d 187, 194 (2d Cir. 2011); see, e.g., Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 809 , 105 S.Ct. 2965 , 86 L.Ed.2d 628 (1985) (noting that the class action mechanism may empower “plaintiffs to pool claims which would be uneconomical to litigate individually,” such as when most of them “would have no realistic day in court if a class action were not available.”); Holmes v. Continental Can Co., 706 F.2d 1144, 1154 (11th Cir.1983) (“[T]he …

Co., 634 F.3d 187, 197 (2d Cir.2011) altered the burden that Sutherland must meet to prove that arbitration is cost-prohibitive.

He points out that in In re American Express Merchants’ Litigation, 634 F.3d 187, 197-99 (2d Cir.2011), the Second Circuit recently applied Green Tree to invalidate a class-action waiver in an arbitration agreement on these very grounds.

Express Merchants’ Litig., 634 F.3d 187, 194 (2d Cir.2011); see, e.g., Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 809 , 105 S.Ct. 2965 , 86 L.Ed.2d 628 (1985) (noting that the class action mechanism may empower “plaintiffs to pool claims which would be uneconomical to litigate individually,” such as when most of them “would have no realistic day in court if a class action were not available.”); Holmes v. Continental Can Co., 706 F.2d 1144, 1154 (11th Cir.1983) (“[T]he c…

See In re Am. Express Merchants' Litig., 554 F.3d 300 , 311 n. 10 (2d Cir.2009) (distinguishing Bazzle , where the agreement was "ambiguous as to whether it permitted” class arbitration, with the one at hand, which "is unambiguous in forbidding arbitration to proceed on a class basis!,]” ultimately deciding whether class waiver was unconscionable under state law), vacated by-U.S.-, 130 S.Ct. 2401 , 176 L.Ed.2d 920 (2010), reaffirmed by 634 F.3d 187, 191 (2d Cir.2011). 5 .

The court distinguished Stolt-Nielsen, finding that it established “that parties cannot be forced to engage in a class arbitration absent a contractual agreement to do so,” but did not render “a contractual clause barring class arbitration [ ] per se enforceable.” Id. at 193-94.

See American Express II, 634 F.3d at 191 (citing Green Tree Financial Corp.-Alabama v. Randolph, 531 U.S. 79, 92 , 121 S.Ct. 513 , 148 L.Ed.2d 373 (2000)).

See Opp'n at 2-4 (discussing, for example, In re American Express Merchants’ Litig., 634 F.3d 187 (2d Cir.2011), in which merchants opposed a motion to compel by arguing that individual arbitration would be cost-prohibitive).

See, e.g., In re Am. Express Merchants’ Litig., 634 F.3d 187, 196-97 (2011) (citing cases from Fourth and Seventh Circuits).