January 30, 2009

In a pivotal ruling by the Second Circuit in In Re American Express Merchants’ Litigation, the court refused to enforce a mandatory class action waiver provision contained in the arbitration clause in card acceptance agreements between American Express and merchants. The court reasoned that enforcing such a waiver would grant American Express de facto immunity from federal antitrust liability by removing the plaintiff merchants’ only reasonably feasible means of recovery. The court relied in part upon an amicus brief submitted by Trial Lawyers for Public Justice on behalf of the plaintiffs, which was co-authored by Edith Kallas and Ilze Thielmann of Whatley Drake & Kallas, along with other counsel.