Antitrust Partner Jennifer Patterson Discusses Recent Trends in Class Action Litigation in InsideCounsel

InsideCounsel reports on several recent Supreme Court decisions that appear to limit the rights of class action litigants and affect the way these suits are resolved. For instance, arbitration agreements that prevent plaintiffs from filing as a class have been increasingly supported by the Supreme Court. In American Express Co. v. Italian Colors Restaurant, the court ruled that the small business plaintiffs who sought to challenge American Express’ merchant agreement did not have the right to arbitrate as a class, despite the fact that the cost of individual arbitration would exceed the potential recovery for each plaintiff.

While this trend in Supreme Court decisions is very defendant-friendly, lower courts nonetheless still have some room to reject arbitration agreements that overly limit the rights of plaintiffs. According to Kaye Scholer Antitrust Partner Jennifer Patterson, “Arbitration clauses could still be found unenforceable where they would restrict a plaintiff’s statutory rights.” She continues, “For instance, a clause that says each party to an antitrust dispute bears its own costs of arbitration and prevents an award of attorneys’ fees could be contrary to the Sherman Act and could be invalidated.”