LEMLEY & LESLIE (DO NOT DELETE) 12/14/2015 10:58 AM Copyright 2015 by Mark A. Lemley & Christopher R. Leslie Printed in U.S.A. Vol. 110, No. 1 Articles ANTITRUST ARBITRATION AND MERGER APPROVAL Mark A. Lemley & Christopher R. Leslie ABSTRACT—In a string of recent opinions, the Supreme Court has made it harder for consumers to avoid arbitration clauses, even when businesses strategically insert provisions in them that effectively prevent consumers from being able to bring any claim in any forum. Arbitration differs from litigation in ways that harm the interests of consumer antitrust plaintiffs. For example, arbitration limits discovery and has no meaningful appeals process. Furthermore, defendants use the terms in arbitration clauses to prevent class actions and to undercut the pro-plaintiff features of antitrust law, including mandatory treble damages, meaningful injunctive relief, recovery of attorneys’ fees, and a lengthy statute of limitations. The problems associated with antitrust arbitration are magnified in concentrated markets. Supporters of enforcing arbitration clauses assume that they these contractual provisions are the result of an informed, voluntary bargain. But when a market is dominated by a single supplier or a small group of firms, consumers often find it impossible to purchase a necessary product while retaining the right to sue, especially since arbitration clauses are generally embedded in contracts of adhesion. This means that in the markets most likely to be affected by antitrust violations, consumers are least likely to be able to avoid mandatory arbitration clauses. Antitrust authorities can address the problem of proliferating arbitration clauses. We argue that antitrust officials should condition merger approval on the merging parties’ agreement to not require arbitration of antitrust claims. AUTHORS—© 2015 Mark A. Lemley & Christopher R. Leslie. Mark A. Lemley is the William H. Neukom Professor of Law, Stanford Law School; partner, Durie Tangri LLP; Christopher R. Leslie is the Chancellor’s Professor of Law, University of California Irvine School of Law. The authors thank Dan Crane, Chris Drahozal, Einer Elhauge, Jordan Elias, Joe Grundfest, Rose Hagan, Herb Hovenkamp, Cheryl Johnson, Tony Reese, 1 LEMLEY & LESLIE (DO NOT DELETE) 12/14/2015 10:58 AM N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W Danny Sokol, and participants at a workshop at the Federal Trade Commission for comments, and Madeleine Laupheimer for research assistance. 2 LEMLEY & LESLIE (DO NOT DELETE) 12/14/2015 10:58 AM 110:1 (2015) Antitrust Arbitration and Merger Approval INTRODUCTION ...................................................................................................... 3 I. ANTITRUST ARBITRATION AND THE EFFECTIVE VINDICATION DOCTRINE .......... 5 A. The Federal Arbitration Act ................................................................... 5 B. The Birth of Antitrust Arbitration and the Effective Vindication Doctrine .................................................................................................. 7 C. Italian Colors and the Death of the Effective Vindication Doctrine ...... 10 II. ANTITRUST ARBITRATION IN THE ABSENCE OF EFFECTIVE VINDICATION ........ 13 A. Procedural Differences ........................................................................ 13 B. Arbitration and Antitrust Remedies ...................................................... 22 C. Class Actions ........................................................................................ 37 D. Conclusion ............................................................................................ 41 III. ANTITRUST ARBITRATION IN A CONCENTRATED MARKET ............................... 42 IV. ADDRESSING THE PROBLEM OF ANTITRUST ARBITRATION THROUGH MERGER ENFORCEMENT ............................................................................................. 48 A. Conditional Approval of Proposed Mergers ......................................... 49 B. Negotiated Abandonment of Mandatory Arbitration for Antitrust Claims as a Condition of Merger Approval ...................................................... 53 CONCLUSION ....................................................................................................... 62 INTRODUCTION In a string of recent opinions, the Supreme Court has made it harder for consumers to avoid arbitration clauses, even when businesses strategically insert provisions in them that effectively prevent consumers from being able to bring any claim in any forum. For example, when firms engage in illegal conduct that extracts small amounts of ill-gotten gains from millions of consumers, individual litigation (or arbitration) may cost more than the maximum possible recovery. In these scenarios, class action litigation or class-wide arbitration may be the only viable mechanisms for consumers to seek recovery. Yet, in AT&T Mobility LLC v. Concepcion,1 the Supreme Court held that the Federal Arbitration Act preempted state laws that rendered class arbitration waivers in arbitration clauses unconscionable and, thus, unenforceable. In American Express Co. v. Italian Colors Restaurant,2 an antitrust case, the Court held that class action waivers embedded in mandatory arbitration clauses were enforceable even when they had the 1 131 S. Ct. 1740 (2011). 2 133 S. Ct. 2304 (2013). 3 LEMLEY & LESLIE (DO NOT DELETE) 12/14/2015 10:58 AM N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W effect of making it economically irrational for the victims of antitrust violations to pursue their claims.3 Part I of this Article examines how courts initially treated antitrust claims as nonarbitrable. For decades, courts considered antitrust claims to be too complex and too important to trust to private arbitrators. By the 1980s, the Supreme Court permitted federal statutory rights, including antitrust claims, to be arbitrated so long as the plaintiffs could effectively vindicate their rights in the alternative forum (the so-called Effective Vindication Doctrine). In 2013, the Supreme Court in Italian Colors fundamentally weakened the Effective Vindication Doctrine when it held that arbitration clauses that precluded class actions and class-wide arbitration were enforceable even when they effectively prevented any victim from actually bringing an individual case. Part II details the problems of mandatory arbitration of antitrust claims. Arbitration differs from litigation in ways that harm the interests of consumer–plaintiffs. For example, arbitration limits discovery and has no meaningful appeals process. Furthermore, defendants draft arbitration clauses to prevent class actions and to undercut the pro-plaintiff features of antitrust law, including mandatory treble damages, meaningful injunctive relief, recovery of attorneys’ fees, and a lengthy statute of limitations. With the Court’s undermining of the Effective Vindication Doctrine in Italian Colors, defendants’ efforts to dismantle these pro-plaintiff components of antitrust law may prove more successful in the future. Part III shows how the problems associated with antitrust arbitration are magnified in concentrated markets. Supporters of enforcing arbitration clauses assume that these contractual provisions are the result of an informed, voluntary bargain. But when a market is dominated by a single supplier or a small group of firms, consumers often find it impossible to purchase a necessary product while retaining the right to sue, especially since arbitration clauses are generally embedded in contracts of adhesion. This means that in the markets most likely to be affected by antitrust violations, consumers are least likely to be able to avoid mandatory arbitration clauses. Furthermore, when mergers result in concentrated markets, they can increase the problems explored in Part II. Finally, Part IV explains how antitrust authorities can address the problem of proliferating arbitration clauses. When evaluating mergers, officials at the Federal Trade Commission and the Antitrust Division of the Department of Justice can threaten to challenge the merger unless the merging parties agree to specified conditions, such as the divestiture of 3 Id. at 2310–11. 4 LEMLEY & LESLIE (DO NOT DELETE) 12/14/2015 10:58 AM 110:1 (2015) Antitrust Arbitration and Merger Approval certain assets. Because those mergers that pose the greatest risk of anticompetitive effects also magnify the problems associated with mandatory arbitration clauses, antitrust officials would be wise to condition merger approval on the merging parties’ agreement to not require arbitration of antitrust claims. This Part explains the rationale and precedent for the antitrust agencies to impose such conditions. I. ANTITRUST ARBITRATION AND THE EFFECTIVE VINDICATION DOCTRINE A. The Federal Arbitration Act Along with other common law traditions, the American legal system imported the English hostility to private arbitration as a substitute for public litigation.4 This resistance proved frustrating to supporters of commercial arbitration,5 who believed that private mediation was superior to traditional litigation because it was quicker, more efficient, and afforded the parties a degree of privacy unattainable in public litigation.6 Commercial arbitration was initially designed to settle trade disputes stemming from contracts.7 Private arbitration afforded commercial actors the ability to structure their own rules and to select adjudicators who understood the relevant industry, including its trade customs.8 The informality of the process, coupled with the arbitrators’ expertise, could mean faster decisions delivered at a lower cost than full-blown litigation.9 Despite the perceived advantages of commercial arbitration, federal judges were not eager to cede their power to private arbitrators.10 In response to this judicial reluctance, Congress enacted the Federal Arbitration Act of 4 Donald I. Baker & Mark R. Stabile, Arbitration of Antitrust Claims: Opportunities and Hazards for Corporate Counsel, 48 BUS. LAW 395, 401 n.39 (1993). 5 Christopher R. Leslie, The Arbitration Bootstrap, 94 TEX. L. REV. (forthcoming 2015). 6 Thomas Campbell, Roxane Busey, & Peter Koch, Arbitrating Antitrust Claims—The Road Less Traveled, ANTITRUST, Fall 2004, at 8, 8. 7 See Leslie, supra note 5. 8 Thomas E. Dempsey, Case Comment, 44 NOTRE DAME LAW. 279, 280–81 (1968) (“Commenting on the advantages of arbitration, Judge Learned Hand said: ‘In trade disputes one of the chief advantages of arbitration is that arbitrators can be chosen who are familiar with the practices and customs of the calling, and with just such matters as what are current prices, what is merchantable quality, what are the terms of sale, and the like.’” (quoting Am. Almond Prods. Co. v. Consol. Pecan Sales Co., 144 F.2d 448, 450 (2d Cir. 1944))). 9 AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740, 1749 (2011) (“[T]he informality of arbitral proceedings is itself desirable, reducing the cost and increasing the speed of dispute resolution.”); Lee Loevinger, Antitrust Issues as Subjects of Arbitration, 44 N.Y.U. L. REV. 1085, 1089 (1969). 10 See Baker & Stabile, supra note 4, at 401 (“U.S. courts initially were hostile to the notion of permitting arbitration of antitrust disputes.”). 5 LEMLEY & LESLIE (DO NOT DELETE) 12/14/2015 10:58 AM N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W 1925 (FAA).11 Section 2 of the Act provides that if a commercial contract contains an agreement to settle controversies arising from the contract through private arbitration, the promise to arbitrate “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.”12 The FAA repudiated “the longstanding judicial hostility to arbitration agreements that had existed at English common law and had been adopted by American courts, and . . . place[d] arbitration agreements upon the same footing as other contracts.”13 Section 2 created “a liberal federal policy favoring arbitration agreements, notwithstanding any state substantive or procedural policies to the contrary.”14 The Act has proved influential.15 Although Congress passed the FAA in 1925, federal courts did not meaningfully address the arbitrability of antitrust claims until the 1960s. In 1968, the Second Circuit in American Safety Equipment Corp. v. J.P. Maguire & Co.16 became the first court of appeals to hold that antitrust claims were not subject to arbitration.17 The Second Circuit articulated four reasons for concluding that the FAA did not apply to antitrust claims, which one scholar has summarized as: (1) deference to private arbitration agreements could lessen the plaintiffs’ incentive to pursue antitrust actions, weakening the use of “private attorneys general” as a foundation of Sherman Act enforcement; (2) arbitration clauses often result from adhesion contracts, and Congress intended that these matters be heard in the courts; (3) arbitrators may be incompetent to comprehend complex antitrust issues; and (4) arbitrators may be biased business people unable to reach fair outcomes.18 11 9 U.S.C. §§ 1–18 (2012); In re Pharmacy Benefit Managers Antitrust Litig., 700 F.3d 109, 116 (3d Cir. 2012) (“Congress enacted the FAA in 1925 to counteract ‘the traditional judicial hostility to the enforcement of arbitration agreements.’” (quoting Alexander v. Anthony Int’l, L.P., 341 F.3d 256, 263 (3d Cir. 2003))). 12 9 U.S.C. § 2. 13 Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24 (1991). 14 Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983). 15 John R. Allison, Arbitration Agreements and Antitrust Claims: The Need for Enhanced Accommodation of Conflicting Public Policies, 64 N.C. L. REV. 219, 227 (1986). 16 391 F.2d 821 (2d Cir. 1968). 17 Id. at 826–28; Baker & Stabile, supra note 4, at 402. 18 Steven R. Swanson, Antisuit Injunctions in Support of International Arbitration, 81 TUL. L. REV. 395, 409 (2006) (summarizing American Safety, 391 F.2d at 826–27); see also Nghiem v. NEC Elec., Inc., 25 F.3d 1437, 1441 (9th Cir. 1994) (“In American Safety, the Second Circuit held that antitrust claims cannot be arbitrated because of the public interest in enforcing antitrust laws, the potential bias and limited expertise of arbitrators, the complexity of antitrust law, and the procedural differences between trials and arbitrations.”); Ramona L. Lampley, Is Arbitration Under Attack?: Exploring the Recent Judicial Skepticism of the Class Arbitration Waiver and Innovative Solutions to the Unsettled 6 LEMLEY & LESLIE (DO NOT DELETE) 12/14/2015 10:58 AM 110:1 (2015) Antitrust Arbitration and Merger Approval This rationale proved persuasive across the circuits, as courts relied on American Safety to hold that antitrust claims were not subject to arbitration.19 By the mid-1980s, the American Safety rule prohibiting arbitration of antitrust claims was well-established and not particularly controversial.20 B. The Birth of Antitrust Arbitration and the Effective Vindication Doctrine The American Safety doctrine began to erode in the 1980s as the Supreme Court interpreted the FAA as creating a heavy presumption in favor of arbitration for all claims.21 The Supreme Court began to dislodge this well- entrenched rule when it considered whether Sherman Act claims could be decided by international arbitration tribunals in other countries. In Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc.,22 the Supreme Court held that an antitrust claim could be submitted to an international arbitral tribunal.23 Although the Mitsubishi Court claimed it was “unnecessary to assess the legitimacy of the American Safety doctrine as applied to agreements to arbitrate arising from domestic transactions,”24 the majority specifically dissected and rejected the Second Circuit’s four rationales for making antitrust claims nonarbitrable.25 The Ninth Circuit treated the Mitsubishi “Court’s meticulous step-by-step disembowelment of the American Safety doctrine” as “effectively overrul[ing] American Safety and its progeny.”26 Other circuits followed suit and began to revisit their rules against allowing domestic antitrust claims to be arbitrated, ultimately holding that—despite the fact that Mitsubishi involved international Legal Landscape, 18 CORNELL J.L. & PUB. POL’Y 477, 518 (2009) (reciting the four rationales in another fashion). 19 See, e.g., Lake Commc’ns, Inc. v. ICC Corp., 738 F.2d 1473, 1479 (9th Cir. 1984); Lee v. Ply*Gem Indus., Inc., 593 F.2d 1266, 1274 (D.C. Cir. 1979); Applied Dig. Tech., Inc. v. Cont’l Cas. Co., 576 F.2d 116, 117–19 (7th Cir. 1978); Cobb v. Lewis, 488 F.2d 41, 47 (5th Cir. 1974); Helfenbein v. Int’l Indus., Inc., 438 F.2d 1068, 1070 (8th Cir. 1971). 20 See Baker & Stabile, supra note 4, at 403 (“Courts . . . continued to prohibit arbitration of antitrust claims for the next decade and a half [after American Safety].”). 21 See Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24–25 (“[Q]uestions of arbitrability must be addressed with a healthy regard for the federal policy favoring arbitration. . . . The Arbitration Act establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.”). 22 473 U.S. 614 (1985). 23 Id. at 632–35. 24 Id. at 629. 25 Id. at 632–35 (expressing “skepticism of certain aspects of the American Safety doctrine”); see also Baker & Stabile, supra note 4, at 406 (“Although the Court’s holding in Mitsubishi is limited to the international arena, its logic is not.”). 26 Nghiem v. NEC Elec., Inc., 25 F.3d 1437, 1442 (9th Cir. 1994). 7 LEMLEY & LESLIE (DO NOT DELETE) 12/14/2015 10:58 AM N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W arbitration—the opinion required that domestic antitrust lawsuits be subject to arbitration.27 In the aftermath of Mitsubishi, as a new consensus emerged that antitrust claims were arbitrable, federal courts employed the Effective Vindication Doctrine to ensure that the statutory rights of antitrust plaintiffs were still protected. In holding that international arbitration could supplant judicial adjudication of antitrust claims, the Mitsubishi Court reasoned that “so long as the prospective litigant effectively may vindicate its statutory cause of action in the arbitral forum, the statute will continue to serve both its remedial and deterrent function.”28 If the antitrust plaintiff could not effectively vindicate its rights through arbitration, the arbitration agreement would be unenforceable and the plaintiff could pursue its antitrust claim in federal court. For example, the Mitsubishi majority “note[d] that in the event the choice-of-forum and choice-of-law clauses operated in tandem as a prospective waiver of a party’s right to pursue statutory remedies for antitrust violations, we would have little hesitation in condemning the agreement as against public policy.”29 Antitrust arbitration was permissible because antitrust plaintiffs could effectively vindicate their rights in an alternative noncourt forum. The Effective Vindication Doctrine provides that “arbitration of the claim will not be compelled if the prospective litigant cannot effectively vindicate his statutory rights in the arbitral forum.”30 The Eleventh Circuit has explained that “the arbitrability of [federal statutory] 27 See, e.g., Seacoast Motors of Salisbury, Inc. v. DaimlerChrysler Motors Corp., 271 F.3d 6, 11 (1st Cir. 2001) (expressly rejecting American Safety in view of Mitsubishi); Kotam Elecs., Inc. v. JBL Consumer Prods., Inc., 93 F.3d 724, 725–28 (11th Cir. 1996) (same); see also HCI Techs., Inc. v. Avaya, Inc., 446 F. Supp. 2d 518, 524 (E.D. Va. 2006) (“A review of subsequent case law reveals that while the grim reaper may not yet have found American Safety’s address, he is certainly in the neighborhood.”); Hunt v. Up N. Plastics, Inc., 980 F. Supp. 1046, 1049 (D. Minn. 1997) (“[T]he Supreme Court’s decision[] in Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc. . . . call[s] into question the rationale of earlier cases exempting antitrust . . . claims from arbitration.” (citation omitted)); Acquaire v. Can. Dry Bottling, 906 F. Supp. 819, 837 (E.D.N.Y. 1995) (“Since the Mitsubishi decision was issued, a number of district courts in this circuit have held that domestic antitrust disputes are arbitrable. I find no reason to conclude otherwise . . . .” (citations omitted)); Syscomm Int’l Corp. v. Synoptics Commc’ns, Inc., 856 F. Supp. 135, 139 (E.D.N.Y. 1994) (“While American Safety has not been explicitly overruled, this Court believes that . . . domestic antitrust claims are arbitrable.”); Hough v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 757 F. Supp. 283, 286 (S.D.N.Y. 1991) (“[T]he reasoning of Mitsubishi should apply with equal force to domestic claims.”), aff’d, 946 F.2d 883 (2d Cir. 1991); W. Int’l Media Corp. v. Johnson, 754 F. Supp. 871, 873–74 (S.D. Fla. 1991) (“Although the Court supported its rejection of some of these concerns on grounds tied to the principles involved in international commercial transactions, the Court’s reliance on arbitration principles and the legislative histories of antitrust provisions suggests that the result arrived at in Mitsubishi would be forthcoming in the domestic situation.”). 28 473 U.S. 614, 637 (1985). 29 Id. at 637 n.19. 30 In re Cotton Yarn Antitrust Litig., 505 F.3d 274, 282 (4th Cir. 2007) (citing Green Tree Fin. Corp.- Ala. v. Randolph, 531 U.S. 79, 90 (2000)); see also Am. Express Co. v. Italian Colors Rest., 133 S. Ct. 2304, 2314 (2013) (Kagan, J., dissenting) (“An arbitration clause will not be enforced if it prevents the effective vindication of federal statutory rights, however it achieves that result.”). 8 LEMLEY & LESLIE (DO NOT DELETE) 12/14/2015 10:58 AM 110:1 (2015) Antitrust Arbitration and Merger Approval claims rests on the assumption that the arbitration clause permits relief equivalent to court remedies. When an arbitration clause has provisions that defeat the remedial purpose of the statute, therefore, the arbitration clause is not enforceable.”31 Justice Kagan has explained the importance of the Effective Vindication Doctrine: The effective-vindication rule furthers the statute’s goals by ensuring that arbitration remains a real, not faux, method of dispute resolution. With the rule, companies have good reason to adopt arbitral procedures that facilitate efficient and accurate handling of complaints. Without it, companies have every incentive to draft their agreements to extract backdoor waivers of statutory rights, making arbitration unavailable or pointless.32 Courts have treated the Effective Vindication Doctrine as a safeguard for allowing claims to be arbitrated. For example, in Green Tree Financial Corp.-Alabama v. Randolph,33 the Supreme Court recognized that “the existence of large arbitration costs could preclude a litigant . . . from effectively vindicating her federal statutory rights in the arbitral forum” but found that the plaintiff did not present sufficient evidence regarding such costs.34 If the evidence had been sufficient, the plaintiff could have evaded the arbitration clause and litigate in federal court.35 Before the Supreme Court decided Italian Colors, antitrust courts applied the Effective Vindication Doctrine to screen out and refuse to enforce arbitration clauses that did not provide an opportunity to effectively assert antitrust claims. For example, federal courts in antitrust litigation had relied on the doctrine to invalidate class action waivers contained in arbitration agreements36 and a provision that prohibited an arbitrator from 31 Paladino v. Avnet Comput. Techs., Inc., 134 F.3d 1054, 1062 (11th Cir. 1998) (citation omitted) (citing Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 28 (1991)). 32 Italian Colors, 133 S. Ct. at 2315 (Kagan, J., dissenting). 33 531 U.S. 79 (2000). 34 Id. at 90; see also Ellen Meriwether, Class Action Waiver and the Effective Vindication Doctrine at the Antitrust/Arbitration Crossroads, ANTITRUST, Summer 2012, at 67, 67 (“In . . . Green Tree Financial Corp.-Alabama v. Randolph, the Supreme Court reinforced the principle that arbitration of federal statutory claims is appropriate where the plaintiffs’ statutory rights can be effectively vindicated through arbitration . . . .”). 35 See Myriam Gilles & Gary Friedman, After Class: Aggregate Litigation in the Wake of AT&T Mobility v. Concepcion, 79 U. CHI. L. REV. 623, 634 (2012) (discussing Green Tree as placing the burden of proof on the party seeking to invalidate an antitrust arbitration agreement to show that “arbitration would be prohibitively expensive”); see also Myriam Gilles, Killing Them with Kindness: Examining “Consumer-Friendly” Arbitration Clauses After AT&T Mobility v. Concepcion, 88 NOTRE DAME L. REV. 825, 832 (2012) (“Lower courts have been uniform in their recognition of the Green Tree test.”). 36 Meriwether, supra note 34, at 69 (“Courts of appeals have followed similar logic in applying the effective vindication doctrine, focusing on cost and other practical considerations that affect whether arbitration is an effective means to vindicate rights under federal law. In some antitrust cases, courts have relied on the doctrine to invalidate class action waivers.” (endnote omitted) (citing Kristian v. Comcast 9 LEMLEY & LESLIE (DO NOT DELETE) 12/14/2015 10:58 AM N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W awarding treble damages.37 But the future contours (and existence) of the Effective Vindication Doctrine are now in doubt, as we explain in the following Section. C. Italian Colors and the Death of the Effective Vindication Doctrine In American Express Co. v. Italian Colors Restaurant,38 the Supreme Court revisited the Effective Vindication Doctrine after a group of merchants filed an antitrust class action against a credit card issuer.39 The merchants had entered contracts with American Express that contained arbitration clauses, which provided that “[t]here shall be no right or authority for any Claims to be arbitrated on a class action basis.”40 Despite signing these class action waivers, the merchants filed an antitrust class action in federal court. The merchants argued that because the necessary expert witnesses were so expensive, compelling the merchants to individually arbitrate would prevent them from effectively vindicating their rights to an antitrust remedy; a class action represented the only cost-effective form of adjudication.41 After the district court granted American Express’s motion to dismiss based on the arbitration clause, the Second Circuit reversed, holding that “the plaintiffs have adequately demonstrated that the class action waiver provision at issue should not be enforced because enforcement of the clause would effectively preclude any action seeking to vindicate the statutory rights asserted by the plaintiffs.”42 The Supreme Court vacated the Second Circuit’s decision without an opinion and remanded the case for further consideration in light of its opinion in Stolt-Nielsen S.A. v. AnimalFeeds International Corp,43 which held that an arbitrator could not compel a party to submit to class-wide arbitration where the arbitration agreement was silent as to its availability.44 On remand, the Second Circuit declined a second time to enforce the class arbitration waiver.45 Shortly after that decision, the Corp., 446 F.3d 25, 58–59 (1st Cir. 2006); In re Am. Express Merchs.’ Litig., 554 F.3d 300, 310, 320 (2d Cir. 2009), vacated sub nom. Am. Express Co. v. Italian Colors Rest., 130 S. Ct. 2401 (2010))). 37 James C. Justice Cos., Inc., v. Deere & Co., No. 5:06-cv-00287, 2008 WL 828923, at *4 (S.D. W. Va. Mar. 27, 2008). 38 133 S. Ct. 2304 (2013). 39 Id. at 2307–08. 40 Id. at 2308 (alteration in original) (citation omitted). 41 Id. at 2308–09. 42 In re Am. Express Merchs.’ Litig., 554 F.3d 300, 304 (2d Cir. 2009), vacated sub nom. Am. Express Co. v. Italian Colors Rest., 130 S. Ct. 2401 (2010). 43 Am. Express Co. v. Italian Colors Rest., 130 S. Ct. 2401 (2010) (mem.) (citing Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662 (2010)). 44 559 U.S. at 684. 45 In re Am. Express Merchs.’ Litig., 634 F.3d 187, 200 (2d Cir. 2011), aff’d on reh’g, 667 F.3d 204 (2d Cir. 2012), rev’d sub nom. Am. Express Co. v. Italian Colors Rest., 133 S. Ct. 2304 (2013). 10