In one of the most closely watched classwide arbitration cases on last term's docket, the U.S. Supreme Court in American Express Co. v. Italian Colors Restaurant was asked whether the "effective-vindication rule" required access to class arbitration in federal antitrust litigation when an individual plaintiff's claim was too small to be litigated separately. In a 5-3 decision (with Justice Sonia Sotomayor not participating) the court — led by its conservative wing — responded with a resounding "no."
The court's majority in Italian Colors advanced the conservatives' harsh approach to classwide arbitration and represented a major setback for the plaintiffs' class action bar. Critics immediately attacked the decision as a pro-corporate, anti-plaintiff, anti-class action, denial-of-access-to-justice, ideologically based decision. Justice Elena Kagan dissented, joined by justices Stephen Breyer and Ruth Bader Ginsburg.
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