In AmEx Justices Reinforced Bilateral Arbitration Agreements With Class Waivers, But Clauses Should be Drafted Carefully

Once again the Supreme Court has reversed a federal appellate panel to require the enforcement of an arbitration clause with a class waiver, even in the face of competing policy considerations. On June 20, 2013, the Court decided American Express Co. v. Italian Colors Restaurant (“AmEx”),¹American Express Co. v. Italian Colors Restaurant, 133 S. Ct. 2304 (U.S. 2013). ruling 5-3 that arbitration agreements banning class actions must be enforced even when it would be irrational to pursue an individual claim because the cost of doing so would dwarf any potential award.²Id. at 2312 ...