If American Express has its way in a case scheduled to go before the US Supreme Court, consumers and owners of small businesses could effectively lose the ability to sue powerful interests with deep pockets in cases involving arbitration. The case found its way to the Court after a group of small business merchants sued American Express for violation of Sherman Anti-Trust Act because of the credit card company’s alleged attempt to wield its monopoly power to force them to take all Amex-branded cards and pay the resulting higher fees. In response to the suit, AmEx, supported by the Chamber of Commerce, moved to force the case into individual arbitration.
While mega companies like American Express are able to challenge each case on an individual basis, consumers and small business owners will have to pay far more to protect their rights than they would stand to gain. There is substantial proof that the cost to prove an individual claim could be hundreds of thousands of dollars while the value of the claim for consumers and small business owners would average only $5,000. As a result, consumers and owners of small businesses would likely abandon their interests due to the high cost of fighting for their rights.
Although the Court has always stated it will enforce arbitration clauses as long as the parties “effectively vindicate” their substantive rights, a decision in favor of American Express would make a mockery of fairness. According to Paul Bland, Senior Attorney at Public Justice, “…AmEx, backed by the Chamber of Commerce, wants the Court to abandon the “effective vindication” doctrine, or more likely to re-define it in a way that would make it completely meaningless. They want the Supreme Court to enforce AmEx’s arbitration clause, and class action ban, even though it means that small business plaintiffs will lose all their substantive rights under the antitrust laws.”
If the Court sides with Amex, it gives the slingshot to Goliath and leaves David to fend for himself.