In a 5-3 ruling with Justice Sonia Sotomayor recused, Justice Antonin Scalia eviscerated almost any opportunity small merchants have to challenge alleged monopolistic practices by American Express in their credit card agreements.
Sound familiar? Earlier this term, the court turned back on procedural grounds a lawsuit alleging monopolistic practices by Comcast. A week after that, they turned back the claims of workers to challenge employer practices as a class. And in 2011, they issued one of the worst blows to consumer rights in years when they held that consumers challenging $30 fees could not sue together as a class. In each of these cases, the court’s procedural rulings mean the parties may never get to argue about whether these corporations actually violated the law. And as a consequence, these corporations may never be held accountable.
With Thursday’s ruling, the court added small businesses to the list of aggrieved parties whose access to the courthouse has been foreclosed by boilerplate contracts that prohibit parties from filing their challenge as a class, or from otherwise alleviating the immense cost of filing their claims individually. This time, the litigants were small businesses taking on American Express, and their lawyer was none other than conservative powerhouse Paul Clement. Clement has argued many of the major conservative court wins of the past few years, and his argument on the side of the plaintiffs was probably the last best shot at curbing the Roberts Court’s total perversion of the Federal Arbitration Act.
As in the AT&T case, the plaintiffs here argued that the only way they could challenge the policy of mega-corporation American Express was by banding together as a class and pooling their resources. But consumers’ claims in AT&T were struck down on a different rationale, that their state law claims were preempted by the Federal Arbitration Act. This time, the plaintiffs argued that because their antitrust claims are federal , they are protected by the principle of “effective vindication,” meaning that where an arbitration clause effectively immunizes otherwise meritorious federal claims, plaintiffs are entitled to vindication of their actual rights. To show that that the arbitration clause would make any challenge prohibitively expensive, they deployed formal affidavits by economists attesting to the immense cost of these claims — “’at least several hundred thousand dollars, and might exceed $1 million’,” while the maximum recovery for an individual plaintiff would be $12,850, or $38,549 when trebled,” meaning they could not afford to launch their claims without the ability to file them together.
No matter, said the majority. In AT&T, “[w]e specifically rejected the argument that class arbitration was necessary to prosecute claims ‘that might otherwise slip through the legal system’.” This case is about federal law vindication and AT&T was about state law preemption, but as Justice Elena Kagan wrote in dissent, “to a hammer everything looks like a nail.” Joined by Justices Ruth Bader Ginsburg and Stephen Breyer, Kagan explains the case this way:
Here is the nutshell version of this case, unfortunately obscured in the Court’s decision. The owner of a small restaurant (Italian Colors) thinks that American Express (Amex) has used its monopoly power to force merchants to accept a form contract violating the antitrust laws. The restaurateur wants to challenge the allegedly unlawful provision (imposing a tying arrangement), but the same contract’s arbitration clause prevents him from doing so.
That term imposes a variety of procedural bars that would make pursuit of the antitrust claim a fool’s errand. So if the arbitration clause is enforceable, Amex has insulated itself from antitrust liability—even if it has in fact violated the law. The monopolist gets to use its monopoly power to insist on a contract effectively depriving its victims of all legal recourse.
And here is the nutshell version of today’s opinion, admirably flaunted rather than camouflaged: Too darn bad.
That answer is a betrayal of our precedents, and of federal statutes like the antitrust laws.
Today’s ruling was yet another point in the Chamber of Commerce’s remarkable tally of wins before the Roberts Court, and another chance for the most business-friendly justices in 65 years to side with their friends.