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American Express v. Italian Colors

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Most of the attention on Wednesday's argument is on the Voting Rights Act case, Shelby County v. Holder (see the Washington Post profile of Ed Blum), but I'm paying more attention to the undercard, American Express v. Italian Colors.

A Reuters report quotes me. Unfortunately, in a story this short, if you tell a reporter four things (like (paraphrasing) "arbitration actually works out better for consumers than class actions most of the time, so long as the clause permits vindication of the consumer right; the Chamber of Commerce brief refutes the false factual premise that this arbitration clause doesn't vindicate the consumer right; but Italian Colors attorney Paul Clement has very cleverly argued for affirmance on narrow grounds on a technicality that would preclude the Court from inquiring into the factual premise; if Italian Colors does prevail on those narrow grounds, future defendants can avoid losing by litigating the case differently than American Express did and slightly tweaking their arbitration clauses"), not all of that nuance is going to make its way into the article. For my more detailed arguments on the intersection of arbitration and class action waivers, see my recent Manhattan Institute report; the 700-word version was in Investors Business Daily last week.

Michael Greve's take on the case, and its larger role in federal-state relations and the scope of the Commerce Clause, is a must-read. More at Business Roundtable Blog.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.