I noted earlier that American Express has won American Express v. Italian Colors
in the Supreme Court. Here's what Justice Scalia says about the
"effective vindication" doctrine — the doctrine on which the Second
Circuit had relied in overriding the class-action ban contained in
American Express's arbitration agreement:
As we
have described, the exception finds its origin in the desire to prevent
“prospective waiver of a party’s right to pursue statutory remedies[.]”
… That would certainly cover a provision in an arbitration
agreement forbidding the assertion of certain statutory rights. And it
would perhaps cover filing and administrative fees attached to
arbitration that are so high as to make access to the forum
impracticable. … 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. … . The class-action
waiver [in this case] merely limits arbitration to the two contracting parties. It no
more eliminates those parties’ right to pursue their statutory remedy
than did federal law before its adoption of the class action for legal
relief in 1938… . Or, to put it differently, the individual suit thatwas considered adequate to assure “effective vindication” of a federal right before adoption of class-action procedures did not suddenly become “ineffective vindication” upon their adoption.
