ABA Journal


U.S. Supreme Court

‘Too darn bad’? SCOTUS enforces contracts barring class arbitration, despite high litigation cost

Jun 20, 2013, 04:04 pm CDT


No restaurant ever went out of business for refusing to accept American Express.

By W.R.T. on 2013 06 20, 10:34 pm CDT

Could the restaurants pass on the higher swipe fee to the customers, giving them the opportunity to avoid it be using a different credit card? Or maybe the restaurents could flood the arbitrator with a multitude of individual arbitration claims and pool resources (e.g., attorneys, experts, discovery) in pursuing them.

By IndyCanary on 2013 06 21, 1:38 pm CDT

IndyCanary, the arb clause in question prohibits pooling resources and joining arb cases in any way. The purpose of the arb clause is to prevent individual private suits for smaller amounts from being viable. Scalia's opinion does not deny this, Kagan dissent makes this clear, and Amex did not deny it either.

By Anteater on 2013 06 21, 7:02 pm CDT

There is a reason that the top three oxymorons of all time are:

1. Military intelligence

2. Reasonable attorneys' fees

3. Justice Scalia

By RunDog on 2013 06 22, 12:33 am CDT

Another kiss to the Big Corp ass on the SCOTUS part. SCOTUS, don't you already want to stop and wipe off your mouth?

By Anna Gray on 2013 06 22, 3:28 am CDT

“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,” Scalia wrote. Scalia apparently thought that the store was suing for a horse, or something. In that case, I would agree...just because the horse is only worth a hundred bucks and it will cost you five hundred to sue for the end of the day, you still get the horse. What Scalia doesn't realize is that cash is 100% fungible, so anything that leaves you with less cash than you had when you started DOES effectively bar you from seeking that cash, unless you, like he, don't understand the simple maxim: less is less, in the cash world. I guess to Scalia, people don't sue other people to come out with more cash at the end of the case, they sue other people to make those other people have less cash at the end of the case...who cares who the cash goes to?!

By Adamius on 2013 06 23, 4:17 pm CDT

Anteater @ 3: But what's to keep attorneys from creating their own "work product" database of pooled, redacted discovery materials, that can be accessed for a small fee by mere civillians as well as attorneys? Sometimes knowing what to look for, what it accomplished for someone else, and where to look for it, can be almost as helpful as the actual discovery materials.

By BMF on 2013 06 25, 10:47 pm CDT

Contact your United States Representatives and Senators and tell them to pass the Arbitration Fairness Act.

By emjaycee on 2013 07 02, 6:16 am CDT

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