The Supreme Court held 5-3 last week in American Express Co. v. Italian Colors Restaurant that contractual waivers of class arbitration can't be invalidated under the Federal Arbitration Act simply because the plaintiff’s cost of individually arbitrating a federal statutory claim would exceed the potential recovery. The law prof reactions range from ho-hum ("No surprises") to sky-is-falling ("Worst Supreme Court Arbitration Decision Ever UC Davis's David Horton, a critic of the decision, finds Justice Kagan's sarcastic dissent "pretty devastating." Perhaps he has this passage in mind:
Where to begin? Well, maybe where I just left off: Italian Colors is not claiming that a class action is necessary—only that it have some means of vindicating a meritorious claim. And as I have shown, non-class options abound. The idea that AT&T Mobility controls here depends entirely on the majority’s view that this case is “class action or bust.” Were the majority to drop that pretense, it could make no claim for AT&T Mobility’s relevance.