Joint Trade Amici Brief on American Express Company v. Italian Colors Restaurant

Amici Curiae



Many of Amici’s members, constituent organizations and affiliates (collectively, “Members”) have independently adopted as standard features of their consumer contracts provisions that call for individual arbitration of disputes arising from or relating to those contracts, upon the election of either party. They use arbitration because it is a prompt, fair, inexpensive and effective method of resolving disputes and because arbitration minimizes the disruption and loss of good will that often results from litigation. Members strive to ensure that their arbitration agreements provide a fair, efficient and cost-effective means for both Members and their customers to resolve disputes between them. The core mandate of the Federal Arbitration Act (the “FAA”), 9 U.S.C. § 1 et seq., is to enforce private arbitration agreements according to their terms.


Last year, in AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011), this Court held that consumer 3 arbitration agreements are fully enforceable even if they prohibit class-wide arbitration of claims that are too small individually to assert in court or in arbitration. Notwithstanding this decision, the Panel below ruled that AMEX’s arbitration agreement with the merchants that accept AMEX charge and credit cards was unenforceable because, the Panel believed, the merchants did not have enough at stake to justify individual arbitration. This erroneous decision threatens to undercut Concepcion and to throw into doubt the enforceability of the arbitration agreements utilized by our Members. Accordingly, Amici have a compelling interest in the issues at stake in this case and in reversal of the Panel’s decision.

To read the full Comment Letter, download the PDF.