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Frank v. Fitzpatrick: I get to say "told you so!"



You may recall that Brian Fitzpatrick had argued that AT&T Mobility v. Concepcion augured the death of class actions, and I disagreed. (Our October 26 Federalist Society debate, where I noted that Concepcion was predicated on the unique features of the Nagareda-designed arbitration clause, does not seem to be online.)

Wednesday, the Second Circuit, in a 2-0 decision (the case was so old that Justice Sotomayor was on the panel that heard oral argument), held that Concepcion did not require them to enforce Amex's arbitration agreement with its merchants given that agreement's class action waiver, because the underlying dispute was a matter of federal antitrust law, which, the court held, would be impossible to vindicate on an individual basis in this particular instance. The result, the Second Circuit said, was unconscionable. [In re Amex Merchants' Litigation]

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Isaac Gorodetski
Project Manager,
Center for Legal Policy at the
Manhattan Institute
igorodetski@manhattan-institute.org

Katherine Lazarski
Press Officer,
Manhattan Institute
klazarski@manhattan-institute.org

 

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.