SCOTUS Reportedly Poised to Overturn 2nd Circuit’s AMEX Decisions Posted on March 3, 2013 by Aaron Gundzik Reply On February 27, the U.S. Supreme Court heard argument in American Express Co v. Italian Colors Restaurant, U.S. Supreme Court, No. 12-133. As I reported previously, in the American Express trio of cases, the 2nd Circuit had held that an arbitration agreement and class action waiver may not be enforced if the plaintiff demonstrates that pursuing its claims in arbitration on an individual basis would be prohibitively expensive. As reported by the Washington Post and others, during oral argument, the Court appeared ready to overturn the 2nd Circuit and require individual arbitration of the class members’ claims. A majority of the justices did not appear to be moved by the plaintiff’s argument that it could not effectively litigate its federal antitrust claims without the opportunity to recover class-wide damages. The Court’s rejection of the 2nd Circuit’s decision will likely impact the continuing validity of Gentry v. Superior Court, 42 Cal.4th 443 (2007) in California. The Gentry exception to enforcing class action waivers is similar that adopted by the the 2nd Circuit in the American Express cases.