The United States Court of Appeals for the Second Circuit again relied on testimony from Gary French to reaffirm its ruling that American Express’s class action waiver provision is unenforceable. According to the Court, “Dr. French’s affidavit demonstrates that the only economically feasible means for plaintiffs enforcing their statutory rights is via a class action.”
The case, In Re: American Express Merchants’ Litigation, involves allegations that American Express violated U.S. antitrust laws by engaging in an illegal tying arrangement that forced merchants to pay the same “elevated” fee structure for revolving debt credit cards as was paid for personal and corporate charge cards.
The Court of Appeals had originally cited Dr. French’s “compelling testimony” in its January 2009 decision to reverse and remand the District Court’s ruling in favor of American Express. The Supreme Court then vacated the Court of Appeals decision and remanded for reconsideration based on the Supreme Court’s recent ruling regarding arbitration in Stolt-Nielsen S.A v Animal Feeds Int’l Corp. The Court of Appeals found that neither the Stolt Nielsen decision nor the more recent AT&T Mobility LLC v. Concepcion decision changes its original analysis.