by Deepak Gupta
Along with the historic Voting Rights Act arguments this morning, the Supreme Court heard oral arguments in American Express v. Italian Colors -- a major antitrust arbitration case that we've mentioned on the blog several times over the years (e.g., here and here). I've been serving as co-counsel for the plaintiffs/respondents in the Supreme Court along with Paul Clement, who argued for our side today. Deputy Solicitor General Malcolm Stewart also appeared -- making a rare appearance for the U.S. government in an arbitration case -- as amicus curiae supporting the plaintiffs/respondents.
The argument transcript is available here and all of the briefing here. You can find an illuminating discussion of the case at the Point of Law blog here, with pro and con submissions by Myriam Gilles and Ted Frank. An early report from Bloomberg is here.
There was some dispute today about exactly what the question presented is, but the basic legal issue in the case -- in layman's terms -- is whether a court must send a case to arbitration even where it is undisputed that the plaintiffs can't vindicate their federal statutory claims in the arbitral forum. I say there was some dispute because even though it was uncontested below that the plaintiffs couldn't vindicate their claims, the petitioners seemed to want to retreat from that position and some of the Justices questioned whether they could do so, leaving open the possibility of some kind of limited remand.
I'm not going to venture any predictions here, but I can safely say that our best arguments were ably presented and that the Justices seemed to understand that this case was not about the availability of class actions, but about whether there will be some kind of ultimate safety valve in the arbitration system at least where important federal statutory rights are at stake.