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Second Circuit lets stand decision that invalidates American Express class action waiver

Steven M. Sellers

A majority of active Second Circuit judges denied a full rehearing of an antitrust case involving a class action arbitration waiver provision in American Express’s credit card contract with plaintiff store owners. Instead, the judges stood by a panel decision that the Federal Arbitration Act does not supersede the protections afforded to the plaintiffs under federal antitrust statutes, rendering the waiver provision unenforceable. The denial cemented a split with the Ninth Circuit, increasing the likelihood that the Supreme Court will review the case.