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More on Stolt-Nielsen: Shouldn’t the Supreme Court Also Grant Certiorari in the American Express Merchants’ Litigation?

June 17th, 2009 Appellate Practice, Arbitrability, Authority of Arbitrators, Class Action Arbitration, Consolidation of Arbitration Proceedings, United States Court of Appeals for the Second Circuit, United States Supreme Court 5 Comments » By Philip J. Loree Jr.

On June 15, we reported briefly on the grant of certiorari in Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 548 F.3d 85 (2d Cir. 2009) (post available here).  As readers will recall the issue before the Court is whether imposing class arbitration on a party whose arbitration clause is silent on that issue is consistent with the Federal Arbitration Act. 

On May 29, 2009 American Express filed a petition for a writ of certiorari in the American Express Merchants’ Litigation, in which the United States Court of Appeals for the Second Circuit held that a provision in an arbitration agreement forbidding class action arbitration was invalid and unenforceable under the circumstances of that case.  See Re American Express Merchants’ Litigation,  554 F.3d 300 (2d Cir. 2009), petition for cert. filed (08-1473) (May 29, 2009).  (A copy of the Second Circuit decision is here, and the Supreme Court Docket sheet is here.)   Opposition papers are due June 29, 2009. 

If the United States Supreme Court were to hold in Stolt-Nielsen that arbitrators cannot order class action arbitration where the arbitration clause is silent on that point, then it would seem that an arbitration clause expressly forbidding class action arbitration should necessarily be valid and enforceable.   Even if the Court were to hold that the arbitrators in Stolt-Nielsen had the power to order a class action arbitration —  even though  the contract was concededly silent on the point — that would still beg the question whether a class action arbitration can be authorized where the contract clearly and unambiguously forbids it.  Hopefully the Court will take the opportunity to bring well-reasoned clarity into this extremely important area of arbitration law by granting certiorari in the American Express Merchants’ Litigation.  If certiorari is granted, next year could yield not one, but two landmark arbitration decisions.

We shall keep readers informed of developments as and when they occur.

         

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5 Responses to “More on Stolt-Nielsen: Shouldn’t the Supreme Court Also Grant Certiorari in the American Express Merchants’ Litigation?”

  1. […] policy if it decides to grant certiorari in the American Express Merchants’ Litigation (blogged here).  Today we examine a case in which the question was whether a state policy in favor of consumer […]

  2. […] The Loree Reinsurance and Arbitration Law Forum is delighted to guest post once again on Karl Bayer’s and Victoria VanBuren’s wonderful ADR blog, Disputing. Because Victoria and I have both written fairly extensively about Hall Street Assoc. v. Mattel, Inc, 128 S. Ct. 1396 (2008), and about two of the most frequently cited cases construing Hall Street’s dictum on manifest disregard of the law — Citigroup Global Markets, Inc. v. Bacon, 562 F.3d 349 (5th Cir. 2009) and Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 548 F.3d 85 (2d Cir. 2009), petition for cert. granted June 15, 2009 (No. 08-1198) – and because the United States Supreme Court has granted certiorari in Stolt-Nielsen, we thought that our joint-readership might appreciate an analysis of the issues that the Supreme Court will likely address – or at least face — in Stolt-Nielsen. That’s what we have set out to do in this four-part guest post. (Victoria’s posts on Hall Street and manifest disregard of the law are here, here, and here and mine are here, here, and here.) […]

  3. […] be imposed on parties whose contracts are silent on that point.  (Posts available here,  here, here, here, here, here, here, here and […]

  4. […] be imposed on parties whose contracts are silent on that point.  (Posts available here,  here, here, here, here, here, here, […]

  5. […] including a series of guest-post articles for the Disputing blog.  (Posts available here,  here, here, here, here, here, here, […]