Scarinci Hollenbeck, LLC, LLCScarinci Hollenbeck, LLC, LLC

Firm Insights

Supreme Court Rules Small Businesses Must Go It Alone in Arbitration

Author: Scarinci Hollenbeck, LLC

Date: July 12, 2013

Key Contacts

Back

In American Express Co. v. Italian Colors Restaurant, the U.S. Supreme Court continued its trend of strictly enforcing arbitration provisions at the peril of class-action claims.

By a vote of 5-3, the majority held that the Federal Arbitration Act (FAA) does not permit courts to invalidate a contractual waiver of class arbitration on the ground that the plaintiff’s cost of individually arbitrating a federal statutory claim exceeds the potential recovery. The decision reinforced AT&T Mobility v. Concepcion, the controversial 2011 decision in which the Court ruled that the FAA pre-empts state laws prohibiting the waiver of class arbitration in consumer contracts.

The Facts of the Case

The dispute centered on an agreement between American Express Co. and a group of merchants who accept American Express cards. The contract requires all disputes to be resolved by arbitration and provides that there “shall be no right or authority for any Claims to be arbitrated on a class action basis.” The merchants nonetheless filed a class action, claiming that petitioners violated the Sherman Act. American Express moved to compel individual arbitration under the FAA, but the merchants argued that the cost of expert analysis necessary to prove the antitrust claims would greatly exceed the maximum recovery for an individual plaintiff.

The Supreme Court’s Decision

The majority began its analysis by highlighting the overarching principle that arbitration is a matter of contract. Moreover, courts should strictly enforce such agreements absent a Congressional mandate that trumps the FAA.

The majority further rejected the “effective vindication” exception established in Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc. As explained by Justice Antonin Scalia, “The exception comes from a desire to prevent ‘prospective waiver of a party’s right to pursue statutory remedies’; but the fact that it is not worth the expense involved in proving a statutory remedy does not constitute the elimination of the right to pursue that remedy.”

AT&T Mobility LLC v. Concepcion all but resolves this case,” the majority further explained. “There, in finding that a law that conditioned enforcement of arbitration on the availability of class procedure interfered with fundamental arbitration attributes, the Court specifically rejected the argument that class arbitration was necessary to prosecute claims ‘that might otherwise slip through the legal system.’”

The Real World Implications

The practical result is that arbitration provisions waiving class action will be enforced regardless of whether or not individual action is too expensive or inconvenient. The only way to avoid such a provision is to invalidate the agreement as unconscionable or otherwise unenforceable under state law, which is generally an uphill battle.

If you have any questions about this case or would like to discuss the legal issues involved, please contact me, Christine Vanek, or the Scarinci Hollenbeck attorney with whom you work.

No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Scarinci Hollenbeck, LLC, LLC

Related Posts

See all
Why Compliance Monitoring Matters for NY and NJ Businesses post image

Why Compliance Monitoring Matters for NY and NJ Businesses

Compliance programs are no longer judged by how they look on paper, but by how they function in the real world. Compliance monitoring is the ongoing process of reviewing, testing, and evaluating whether policies, procedures, and controls are being followed—and whether they are actually working. What Is Compliance Monitoring? In today’s heightened regulatory environment, compliance […]

Author: Dan Brecher

Link to post with title - "Why Compliance Monitoring Matters for NY and NJ Businesses"
When Are New Jersey Business Owners Personally Liable for Corporate Debt? post image

When Are New Jersey Business Owners Personally Liable for Corporate Debt?

New Jersey personal guaranty liability is a critical issue for business owners who regularly sign contracts on behalf of their companies. A recent New Jersey Supreme Court decision provides valuable guidance on when a business owner can be held personally responsible for a company’s debt. Under the Court’s decision in Extech Building Materials, Inc. v. […]

Author: Charles H. Friedrich

Link to post with title - "When Are New Jersey Business Owners Personally Liable for Corporate Debt?"
Commercial Real Estate Trends to Watch in 2026 post image

Commercial Real Estate Trends to Watch in 2026

Commercial real estate trends in 2026 are being shaped by shifting economic conditions, technological innovation, and evolving tenant demands. As the market adjusts to changing interest rates, capital flows, and workplace models, investors, owners, tenants, and developers must understand how these trends are influencing opportunities and risk in the year ahead. Overall Outlook for Commercial […]

Author: Michael J. Willner

Link to post with title - "Commercial Real Estate Trends to Watch in 2026"
One Big Beautiful Bill: New Tip Income Tax Rules Employers & Workers Need to Know post image

One Big Beautiful Bill: New Tip Income Tax Rules Employers & Workers Need to Know

Part 2 – Tips Excluded from Income Certain employees and independent contractors may be eligible to deduct tips from their income for tax years 2025 through 2028 under provisions included in the One Big Beautiful Bill. The deduction is capped at $25,000 per year and begins to phase out at $150,000 of modified adjusted gross […]

Author: Scott H. Novak

Link to post with title - "One Big Beautiful Bill: New Tip Income Tax Rules Employers & Workers Need to Know"
One Big Beautiful Bill: New Overtime Tax Rules Employers and Employees Need to Know post image

One Big Beautiful Bill: New Overtime Tax Rules Employers and Employees Need to Know

Part 1 – Overtime Pay and Income Tax Treatment Overview This Firm Insights post summarizes one provision of the “One Big Beautiful Bill” related to the tax treatment of overtime compensation and related employer wage reporting obligations. Overtime Pay and Employee Tax Treatment The Fair Labor Standards Act (FLSA) generally requires that overtime be paid […]

Author: Scott H. Novak

Link to post with title - "One Big Beautiful Bill: New Overtime Tax Rules Employers and Employees Need to Know"
New York’s FAIR Business Practices Act: What the New Consumer Protection Measure Means for Your Business post image

New York’s FAIR Business Practices Act: What the New Consumer Protection Measure Means for Your Business

In 2025, New York enacted one of the most consequential updates to its consumer protection framework in decades. The Fostering Affordability and Integrity through Reasonable Business Practices Act (FAIR Act) significantly expands the scope and strength of New York’s long-standing consumer protection statute, General Business Law § 349, and alters the compliance landscape for New York […]

Author: Dan Brecher

Link to post with title - "New York’s FAIR Business Practices Act: What the New Consumer Protection Measure Means for Your Business"

No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Sign up to get the latest from our attorneys!

Explore What Matters Most to You.

Consider subscribing to our Firm Insights mailing list by clicking the button below so you can keep up to date with the firm`s latest articles covering various legal topics.

Stay informed and inspired with the latest updates, insights, and events from Scarinci Hollenbeck. Our resource library provides valuable content across a range of categories to keep you connected and ahead of the curve.

Let`s get in touch!

* The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form. By providing a telephone number and submitting this form you are consenting to be contacted by SMS text message. Message & data rates may apply. Message frequency may vary. You can reply STOP to opt-out of further messaging.

Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!