June 21, 2013

Plaintiffs Lawyers Still Hopeful After AmEx Ruling

In a June 21, 2013 Law360 article which highlighted top antitrust plaintiffs attorneys who voiced disappointment with the U.S. Supreme Court's ruling that courts can't invalidate class action arbitration waivers just because they would make pursuing a federal claim too expensive, but they warned that the decision in favor of American Express Co. was hardly a death knell for class actions, Cohen Milstein's Benjamin Brown was quoted, saying:

"There's been a fair amount of recent scholarship showing there's underdeterrence right now of cartel activity and other antitrust violations, and I feel like this opinion will only exacerbate that problem. It will introduce new inefficiencies into the world of litigation and getting recoveries for anti-competitive acts, and it will definitely have a detrimental effect on class action litigation.

"While there are certain cases that won't be viable going forward, I think the majority of cases that you see today will still be viable. Many cases have multiple defendants that do not have bilateral contracts with all of the class members. And of course all indirect purchaser cases or virtually all indirect purchaser cases involve parties who do not have contracts with the defendants. Also there will be arbitrations that will be pursued now that would not have been pursued prior to this ruling. So plaintiffs and defendants alike are going to be faced with the new reality of handling more arbitrations in more forums, which is sort of a double-edged sword for defendants. So there will certainly be a period of adaptation in the bar and it will be a somewhat different landscape going forward.

"Certainly there are some pundits and even some defense attorneys out there who are saying this is the death of the class action in the antitrust world and other substantive areas. I don't think that's really true. But there is a not insubstantial segment of current class actions that will undoubtedly go away as a result of this ruling.

"But that being said, it's easy to overstate the effects, and even for those cases that will no longer be viable as class actions, a subset of those, including probably the American Express case itself, are going to be large enough and affect enough sophisticated clients with sufficient claims that the parties will likely be looking at a number of different arbitrations being pursued."