American Express Co. v. Italian Colors Restaurant

On January 22, 2013, Bancroft lawyers Paul D. Clement and Michael H. McGinley filed a brief in the United States Supreme Court on behalf of Italian Colors Restaurant and other small businesses, as Respondents in American Express Co. v. Italian Colors Restaurant, No. 12-133. Respondents are merchants who sued American Express for violations of the federal antitrust laws. American Express seeks to compel one-on-one arbitration according to the terms of its standard arbitration clause.  Those terms do not allow Respondents to share the costs of proving their claims, as they could in litigation, or to shift the costs to American Express in the event Respondents prevail, as they could under many other companies’ arbitration agreements. Respondents presented undisputed evidence that those prohibitive costs, which include an extensive expert study, would exceed each individual Respondent’s expected recovery by several hundred thousand dollars and therefore would prevent Respondents from effectively vindicating their federal antitrust rights. The question presented to the Supreme Court is whether an arbitration clause should be enforced when there is no dispute that litigants would be unable effectively to vindicate their federal statutory rights in the arbitral forum.

Brief for Respondents