American Express Co. v. Italian Colors Restaurant

(Slip Opinion) OCTOBER TERM, 2012 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

AMERICAN EXPRESS CO. ET AL. v. ITALIAN COLORS

RESTAURANT ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

No. 12–133. Argued February 27, 2013—Decided June 20, 2013

An agreement between petitioners, American Express and a subsidiary,

and respondents, merchants who accept American Express cards, re-

quires all of their disputes to be resolved by arbitration and provides

that there “shall be no right or authority for any Claims to be arbi-

trated on a class action basis.” Respondents nonetheless filed a class

action, claiming that petitioners violated §1 of the Sherman Act and

seeking treble damages for the class under §4 of the Clayton Act. Pe-

titioners moved to compel individual arbitration under the Federal

Arbitration Act (FAA), but respondents countered that the cost of ex-

pert analysis necessary to prove the antitrust claims would greatly

exceed the maximum recovery for an individual plaintiff. The Dis-

trict Court granted the motion and dismissed the lawsuits. The Se-

cond Circuit reversed and remanded, holding that because of the pro-

hibitive costs respondents would face if they had to arbitrate, the

class-action waiver was unenforceable and arbitration could not pro-

ceed. The Circuit stood by its reversal when this Court remanded in

light of Stolt-Nielsen S. A. v. AnimalFeeds International Corp., 559

U. S. 662, which held that a party may not be compelled to submit to

class arbitration absent an agreement to do so.

Held: The FAA does not permit courts to invalidate a contractual waiv-

er of class arbitration on the ground that the plaintiff’s cost of indi-

vidually arbitrating a federal statutory claim exceeds the potential

recovery. Pp. 3–10.

(a) The FAA reflects the overarching principle that arbitration is a

matter of contract. See Rent-A-Center, West, Inc. v. Jackson, 561

U. S. ___, ___. Courts must “rigorously enforce” arbitration agree-

ments according to their terms, Dean Witter Reynolds, Inc. v. Byrd,

2 AMERICAN EXPRESS CO. v. ITALIAN COLORS

RESTAURANT

Syllabus

470 U. S. 213, 221, even for claims alleging a violation of a federal

statute, unless the FAA’s mandate has been “ ‘overridden by a contra-

ry congressional command,’ ” CompuCredit Corp. v. Greenwood, 565

U. S. ___, ___. Pp. 3–4.

(b) No contrary congressional command requires rejection of the

class-arbitration waiver here. The antitrust laws do not guarantee

an affordable procedural path to the vindication of every claim, see

Rodriguez v. United States, 480 U. S. 522, 525–526, or “evince an in-

tention to preclude a waiver” of class-action procedure, Mitsubishi

Motors Corp. v. Soler-Chrysler-Plymouth, Inc., 473 U. S. 614, 628.

Nor does congressional approval of Federal Rule of Civil Procedure 23

establish an entitlement to class proceedings for the vindication of

statutory rights. The Rule imposes stringent requirements for certi-

fication that exclude most claims, and this Court has rejected the as-

sertion that the class-notice requirement must be dispensed with be-

cause the “prohibitively high cost” of compliance would “frustrate

[plaintiff’s] attempt to vindicate the policies underlying the antitrust”

laws, Eisen v. Carlisle & Jacquelin, 417 U. S. 156, 167–168, 175–176.

Pp. 4–5.

(c) The “effective vindication” exception that originated as dictum

in Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S.

614, also does not invalidate the instant arbitration agreement. The

exception comes from a desire to prevent “prospective waiver of a

party’s right to pursue statutory remedies,” id., at 637, n. 19; but the

fact that it is not worth the expense involved in proving a statutory

remedy does not constitute the elimination of the right to pursue that

remedy. Cf. Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20,

32; Vimar Seguros y Reaseguros, S. A. v. M/V Sky Reefer, 515 U. S.

528, 530, 534. AT&T Mobility LLC v. Concepcion, 563 U. S. ___, all

but resolves this case. There, in finding that a law that conditioned

enforcement of arbitration on the availability of class procedure inter-

fered with fundamental arbitration attributes, id., at ___, the Court

specifically rejected the argument that class arbitration was neces-

sary to prosecute claims “that might otherwise slip through the legal

system,” id., at ___. Pp. 5–9.

667 F. 3d 204, reversed.

SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J.,

and KENNEDY, THOMAS, and ALITO, JJ., joined. THOMAS, J., filed a con-

curring opinion. KAGAN, J., filed a dissenting opinion, in which GINS-

BURG and BREYER, JJ., joined. SOTOMAYOR, J., took no part in the con-

sideration or decision of the case.

Cite as: 570 U. S. ____ (2013) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 12–133

_________________

AMERICAN EXPRESS COMPANY, ET AL., PETITIONERS

v. ITALIAN COLORS RESTAURANT ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

[June 20, 2013]

JUSTICE SCALIA delivered the opinion of the Court.

We consider whether a contractual waiver of class arbi-

tration is enforceable under the Federal Arbitration Act

when the plaintiff ’s cost of individually arbitrating a

federal statutory claim exceeds the potential recovery.

I

Respondents are merchants who accept American Ex-

press cards. Their agreement with petitioners—American

Express and a wholly owned subsidiary—contains a clause

that requires all disputes between the parties to be re-

solved by arbitration. The agreement also provides that

“[t]here shall be no right or authority for any Claims to be

arbitrated on a class action basis.” In re American Express

Merchants’ Litigation, 667 F. 3d 204, 209 (CA2 2012).

Respondents brought a class action against petitioners

for violations of the federal antitrust laws. According to

respondents, American Express used its monopoly power

in the market for charge cards to force merchants to ac-

cept credit cards at rates approximately 30% higher than

2 AMERICAN EXPRESS CO. v. ITALIAN COLORS

RESTAURANT

Opinion of the Court

the fees for competing credit cards.1 This tying arrange-

ment, respondents said, violated §1 of the Sherman Act.

They sought treble damages for the class under §4 of the

Clayton Act.

Petitioners moved to compel individual arbitration

under the Federal Arbitration Act (FAA), 9 U. S. C. §1

et seq. In resisting the motion, respondents submitted a

declaration from an economist who estimated that the cost

of an expert analysis necessary to prove the antitrust

claims would be “at least several hundred thousand dol-

lars, and might exceed $1 million,” while the maximum

recovery for an individual plaintiff would be $12,850, or

$38,549 when trebled. App. 93. The District Court granted

the motion and dismissed the lawsuits. The Court of

Appeals reversed and remanded for further proceedings.

It held that because respondents had established that

“they would incur prohibitive costs if compelled to arbi-

trate under the class action waiver,” the waiver was un-

enforceable and the arbitration could not proceed. In re

American Express Merchants’ Litigation, 554 F. 3d 300,

315–316 (CA2 2009).

We granted certiorari, vacated the judgment, and re-

manded for further consideration in light of Stolt-Nielsen

S. A. v. AnimalFeeds Int’l Corp., 559 U. S. 662 (2010),

which held that a party may not be compelled to submit to

class arbitration absent an agreement to do so. American

Express Co. v. Italian Colors Restaurant, 559 U. S. 1103

(2010). The Court of Appeals stood by its reversal, stating

that its earlier ruling did not compel class arbitration.

In re American Express Merchants’ Litigation, 634 F. 3d

187, 200 (CA2 2011). It then sua sponte reconsidered its

ruling in light of AT&T Mobility LLC v. Concepcion, 563

——————

1 A charge card requires its holder to pay the full outstanding balance

at the end of a billing cycle; a credit card requires payment of only a

portion, with the balance subject to interest.

Cite as: 570 U. S. ____ (2013) 3

Opinion of the Court

U. S. ___ (2011), which held that the FAA pre-empted a

state law barring enforcement of a class-arbitration waiver.

Finding AT&T Mobility inapplicable because it addressed

pre-emption, the Court of Appeals reversed for the third

time. 667 F. 3d, at 213. It then denied rehearing en

banc with five judges dissenting. In re American Express

Merchants’ Litigation, 681 F. 3d 139 (CA2 2012). We

granted certiorari, 568 U. S. ___ (2012), to consider the

question “[w]hether the Federal Arbitration Act permits

courts . . . to invalidate arbitration agreements on the

ground that they do not permit class arbitration of a

federal-law claim,” Pet. for Cert. i.

II

Congress enacted the FAA in response to widespread

judicial hostility to arbitration. See AT&T Mobility,

supra, at ___ (slip op., at 4). As relevant here, the Act

provides:

“A written provision in any maritime transaction or

contract evidencing a transaction involving commerce

to settle by arbitration a controversy thereafter aris-

ing out of such contract or transaction . . . shall be valid,

irrevocable, and enforceable, save upon such grounds

as exist at law or in equity for the revocation of any

contract.” 9 U. S. C. §2.

This text reflects the overarching principle that arbitra-

tion is a matter of contract. See Rent-A-Center, West, Inc.

v. Jackson, 561 U. S. ___, ___ (2010) (slip op., at 3). And

consistent with that text, courts must “rigorously enforce”

arbitration agreements according to their terms, Dean

Witter Reynolds Inc. v. Byrd, 470 U. S. 213, 221 (1985),

including terms that “specify with whom [the parties]

choose to arbitrate their disputes,” Stolt-Nielsen, supra, at

683, and “the rules under which that arbitration will be

conducted,” Volt Information Sciences, Inc. v. Board of

4 AMERICAN EXPRESS CO. v. ITALIAN COLORS

RESTAURANT

Opinion of the Court

Trustees of Leland Stanford Junior Univ., 489 U. S. 468,

479 (1989). That holds true for claims that allege a viola-

tion of a federal statute, unless the FAA’s mandate has

been “ ‘overridden by a contrary congressional command.’ ”

CompuCredit Corp. v. Greenwood, 565 U. S. ___, ___

(2012) (slip op., at 2–3) (quoting Shearson/American

Express Inc. v. McMahon, 482 U. S. 220, 226 (1987)).

III

No contrary congressional command requires us to

reject the waiver of class arbitration here. Respondents argue

that requiring them to litigate their claims individually—

as they contracted to do—would contravene the policies

of the antitrust laws. But the antitrust laws do not

guarantee an affordable procedural path to the vindi-

cation of every claim. Congress has taken some measures

to facilitate the litigation of antitrust claims—for example,

it enacted a multiplied-damages remedy. See 15 U. S. C.

§15 (treble damages). In enacting such measures, Con-

gress has told us that it is willing to go, in certain re-

spects, beyond the normal limits of law in advancing its

goals of deterring and remedying unlawful trade practice.

But to say that Congress must have intended whatever

departures from those normal limits advance antitrust

goals is simply irrational. “[N]o legislation pursues its

purposes at all costs.” Rodriguez v. United States, 480

U. S. 522, 525–526 (1987) (per curiam).

The antitrust laws do not “evinc[e] an intention to pre-

clude a waiver” of class-action procedure. Mitsubishi

Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S.

614, 628 (1985). The Sherman and Clayton Acts make no

mention of class actions. In fact, they were enacted dec-

ades before the advent of Federal Rule of Civil Procedure

23, which was “designed to allow an exception to the usual

rule that litigation is conducted by and on behalf of the

individual named parties only.” Califano v. Yamasaki,

Cite as: 570 U. S. ____ (2013) 5

Opinion of the Court

442 U. S. 682, 700–701 (1979). The parties here agreed to

arbitrate pursuant to that “usual rule,” and it would be

remarkable for a court to erase that expectation.

Nor does congressional approval of Rule 23 establish an

entitlement to class proceedings for the vindication of

statutory rights. To begin with, it is likely that such an

entitlement, invalidating private arbitration agreements

denying class adjudication, would be an “abridg[ment]” or

modif[ication]” of a “substantive right” forbidden to the

Rules, see 28 U. S. C. §2072(b). But there is no evidence of

such an entitlement in any event. The Rule imposes

stringent requirements for certification that in practice

exclude most claims. And we have specifically rejected the

assertion that one of those requirements (the class-notice

requirement) must be dispensed with because the “prohib-

itively high cost” of compliance would “frustrate [plain-

tiff ’s] attempt to vindicate the policies underlying the

antitrust” laws. Eisen v. Carlisle & Jacquelin, 417 U. S.

156, 166–168, 175–176 (1974). One might respond, per-

haps, that federal law secures a nonwaivable opportunity

to vindicate federal policies by satisfying the procedural

strictures of Rule 23 or invoking some other informal class

mechanism in arbitration. But we have already rejected

that proposition in AT&T Mobility, 563 U. S., at ___ (slip

op., at 9).

IV

Our finding of no “contrary congressional command”

does not end the case. Respondents invoke a judge-made

exception to the FAA which, they say, serves to harmonize

competing federal policies by allowing courts to invalidate

agreements that prevent the “effective vindication” of a

federal statutory right. Enforcing the waiver of class

arbitration bars effective vindication, respondents con-

tend, because they have no economic incentive to pursue

their antitrust claims individually in arbitration.

6 AMERICAN EXPRESS CO. v. ITALIAN COLORS

RESTAURANT

Opinion of the Court

The “effective vindication” exception to which respond-

ents allude originated as dictum in Mitsubishi Motors,

where we expressed a willingness to invalidate, on “public

policy” grounds, arbitration agreements that “operat[e] . . .

as a prospective waiver of a party’s right to pursue statu-

tory remedies.” 473 U. S., at 637, n. 19 (emphasis added).

Dismissing concerns that the arbitral forum was inade-

quate, we said that “so long as the prospective litigant

effectively may vindicate its statutory cause of action in

the arbitral forum, the statute will continue to serve both

its remedial and deterrent function.” Id., at 637. Subse-

quent cases have similarly asserted the existence of an

“effective vindication” exception, see, e.g., 14 Penn Plaza

LLC v. Pyett, 556 U. S. 247, 273–274 (2009); Gilmer v.

Interstate/Johnson Lane Corp., 500 U. S. 20, 28 (1991),

but have similarly declined to apply it to invalidate the

arbitration agreement at issue.2

And we do so again here. As we have described, the

exception finds its origin in the desire to prevent “prospec-

tive waiver of a party’s right to pursue statutory reme-

dies,” Mitsubishi Motors, supra, at 637, n. 19 (emphasis

added). That would certainly cover a provision in an

arbitration agreement forbidding the assertion of certain

statutory rights. And it would perhaps cover filing and

administrative fees attached to arbitration that are so

high as to make access to the forum impracticable. See

——————

2 Contraryto the dissent’s claim, post, at 8–9, and n. 3 (opinion of

KAGAN, J.), the Court in Mitsubishi Motors did not hold that federal

statutory claims are subject to arbitration so long as the claimant may

effectively vindicate his rights in the arbitral forum. The Court ex-

pressly stated that, “at this stage in the proceedings,” it had “no occa-

sion to speculate” on whether the arbitration agreement’s potential

deprivation of a claimant’s right to pursue federal remedies may render

that agreement unenforceable. 473 U. S., at 637, n. 19. Even the Court

of Appeals in this case recognized the relevant language in Mitsubishi

Motors as dicta. In re American Express Merchants’ Litigation, 667

F. 3d 204, 214 (CA2 2012).

Cite as: 570 U. S. ____ (2013) 7

Opinion of the Court

Green Tree Financial Corp.-Ala. v. Randolph, 531 U. S. 79,

90 (2000) (“It may well be that the existence of large arbi-

tration costs could preclude a litigant . . . from effectively

vindicating her federal statutory rights”). But the fact

that it is not worth the expense involved in proving a

statutory remedy does not constitute the elimination of

the right to pursue that remedy. See 681 F. 3d, at 147

(Jacobs, C. J., dissenting from denial of rehearing en

banc).3 The class-action waiver merely limits arbitration

to the two contracting parties. It no more eliminates those

parties’ right to pursue their statutory remedy than did

federal law before its adoption of the class action for legal

relief in 1938, see Fed. Rule Civ. Proc. 23, 28 U. S. C.,

p. 864 (1938 ed., Supp V); 7A C. Wright, A. Miller, & M.

Kane, Federal Practice and Procedure §1752, p. 18 (3d ed.

2005). Or, to put it differently, the individual suit that

was considered adequate to assure “effective vindication”

of a federal right before adoption of class-action proce-

dures did not suddenly become “ineffective vindication”

upon their adoption.4

——————

3 The dissent contends that a class-action waiver may deny a party’s

right to pursue statutory remedies in the same way as a clause that

bars a party from presenting economic testimony. See post, at 3, 9.

That is a false comparison for several reasons: To begin with, it is not a

given that such a clause would constitute an impermissible waiver; we

have never considered the point. But more importantly, such a clause,

assuming it makes vindication of the claim impossible, makes it impos-

sible not just as a class action but even as an individual claim.

4 Who can disagree with the dissent’s assertion that “the effective-

vindication rule asks about the world today, not the world as it might

have looked when Congress passed a given statute”? Post, at 12. But

time does not change the meaning of effectiveness, making ineffective

vindication today what was effective vindication in the past. The

dissent also says that the agreement bars other forms of cost sharing—

existing before the Sherman Act—that could provide effective vindica-

tion. See post, at 11–12, and n. 5. Petitioners denied that, and that is

not what the Court of Appeals decision under review here held. It held

that, because other forms of cost sharing were not economically feasible

8 AMERICAN EXPRESS CO. v. ITALIAN COLORS

RESTAURANT

Opinion of the Court

A pair of our cases brings home the point. In Gilmer,

supra, we had no qualms in enforcing a class waiver in an

arbitration agreement even though the federal statute at

issue, the Age Discrimination in Employment Act, ex-

pressly permitted collective actions. We said that statutory

permission did “ ‘not mean that individual attempts at

conciliation were intended to be barred.’ ” Id., at 32. And

in Vimar Seguros y Reaseguros, S. A. v. M/V Sky Reefer,

515 U. S. 528 (1995), we held that requiring arbitration in

a foreign country was compatible with the federal Car-

riage of Goods by Sea Act. That legislation prohibited any

agreement “ ‘relieving’ ” or “ ‘lessening’ ” the liability of a

carrier for damaged goods, id., at 530, 534 (quoting 46

U. S. C. App. §1303(8) (1988 ed.))—which is close to codifi-

cation of an “effective vindication” exception. The Court

rejected the argument that the “inconvenience and costs of

proceeding” abroad “lessen[ed]” the defendants’ liability,

stating that “[i]t would be unwieldy and unsupported by

the terms or policy of the statute to require courts to pro-

ceed case by case to tally the costs and burdens to particu-

lar plaintiffs in light of their means, the size of their

claims, and the relative burden on the carrier.” 515 U. S.,

at 532, 536. Such a “tally[ing] [of] the costs and burdens”

is precisely what the dissent would impose upon federal

courts here.

Truth to tell, our decision in AT&T Mobility all but

resolves this case. There we invalidated a law condition-

ing enforcement of arbitration on the availability of class

procedure because that law “interfere[d] with fundamental

——————

(“the only economically feasible means for . . . enforcing [respondents’]

statutory rights is via a class action”), the class-action waiver was

unenforceable. 667 F. 3d, at 218 (emphasis added). (The dissent’s

assertion to the contrary cites not the opinion on appeal here, but an

earlier opinion that was vacated. See In re American Express Mer-

chants’ Litigation, 554 F. 3d 300 (CA2 2009), vacated and remanded,

559 U. S. 1103 (2010).) That is the conclusion we reject.

Cite as: 570 U. S. ____ (2013) 9

Opinion of the Court

attributes of arbitration.” 563 U. S., at ___ (slip op., at 9).

“[T]he switch from bilateral to class arbitration,” we said,

“sacrifices the principal advantage of arbitration—its

informality—and makes the process slower, more costly,

and more likely to generate procedural morass than final

judgment.” Id., at ___ (slip op., at 14). We specifically

rejected the argument that class arbitration was necessary

to prosecute claims “that might otherwise slip through the

legal system.” Id., at ___ (slip op., at 17).5

* * *

The regime established by the Court of Appeals’ decision

would require—before a plaintiff can be held to contractu-

ally agreed bilateral arbitration—that a federal court

determine (and the parties litigate) the legal requirements

for success on the merits claim-by-claim and theory-by-

theory, the evidence necessary to meet those requirements,

the cost of developing that evidence, and the damages

that would be recovered in the event of success. Such a

preliminary litigating hurdle would undoubtedly destroy

the prospect of speedy resolution that arbitration in gen-

eral and bilateral arbitration in particular was meant to

secure. The FAA does not sanction such a judicially created

superstructure.

The judgment of the Court of Appeals is reversed.

——————

5 In dismissing AT&T Mobility as a case involving pre-emption and

not the effective-vindication exception, the dissent ignores what that

case established—that the FAA’s command to enforce arbitration

agreements trumps any interest in ensuring the prosecution of low-

value claims. The latter interest, we said, is “unrelated” to the FAA.

563 U. S., at ___ (slip op., at 17). Accordingly, the FAA does, contrary

to the dissent’s assertion, see post, at 5, favor the absence of litigation

when that is the consequence of a class-action waiver, since its “ ‘princi-

pal purpose’ ” is the enforcement of arbitration agreements according to

their terms. 563 U. S., at ___ (slip op., at 9–10) (quoting Volt Infor-

mation Sciences, Inc. v. Board of Trustees of Leland Stanford Junior

Univ., 489 U. S. 468, 487 (1989)).

10 AMERICAN EXPRESS CO. v. ITALIAN COLORS

RESTAURANT

Opinion of the Court

It is so ordered.

JUSTICE SOTOMAYOR took no part in the consideration

or decision of this case.

Cite as: 570 U. S. ____ (2013) 1

THOMAS, J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

No. 12–133

_________________

AMERICAN EXPRESS COMPANY, ET AL., PETITIONERS

v. ITALIAN COLORS RESTAURANT ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

[June 20, 2013]

JUSTICE THOMAS, concurring.

I join the Court’s opinion in full. I write separately to

note that the result here is also required by the plain

meaning of the Federal Arbitration Act. In AT&T Mobil-

ity LLC v. Concepcion, 563 U. S. ___ (2011), I explained

that “the FAA requires that an agreement to arbitrate be

enforced unless a party successfully challenges the forma-

tion of the arbitration agreement, such as by proving fraud

or duress.” Id., at ___ (concurring opinion) (slip op.,

at 1–2). In this case, Italian Colors makes two arguments

to support its conclusion that the arbitration agreement

should not be enforced. First, it contends that enforcing

the arbitration agreement “would contravene the policies

of the antitrust laws.” Ante, at 4. Second, it contends that

a court may “invalidate agreements that prevent the ‘ef-

fective vindication’ of a federal statutory right.” Ante, at 6.

Neither argument “concern[s] whether the contract was

properly made,” Concepcion, supra, at ___ (THOMAS, J.,

concurring) (slip op., at 5–6). Because Italian Colors

has not furnished “grounds . . . for the revocation of any

contract,” 9 U. S. C. §2, the arbitration agreement must

be enforced. Italian Colors voluntarily entered into a con-

tract containing a bilateral arbitration provision. It can-

not now escape its obligations merely because the claim it

wishes to bring might be economically infeasible.

Cite as: 570 U. S. ____ (2013) 1

KAGAN, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 12–133

_________________

AMERICAN EXPRESS COMPANY, ET AL., PETITIONERS

v. ITALIAN COLORS RESTAURANT ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

[June 20, 2013]

JUSTICE KAGAN, with whom JUSTICE GINSBURG and

JUSTICE BREYER join, dissenting.

Here is the nutshell version of this case, unfortunately

obscured in the Court’s decision. The owner of a small

restaurant (Italian Colors) thinks that American Express

(Amex) has used its monopoly power to force merchants to

accept a form contract violating the antitrust laws. The

restaurateur wants to challenge the allegedly unlawful

provision (imposing a tying arrangement), but the same

contract’s arbitration clause prevents him from doing so.

That term imposes a variety of procedural bars that would

make pursuit of the antitrust claim a fool’s errand. So if

the arbitration clause is enforceable, Amex has insulated

itself from antitrust liability—even if it has in fact violated

the law. The monopolist gets to use its monopoly power to

insist on a contract effectively depriving its victims of all

legal recourse.

And here is the nutshell version of today’s opinion,

admirably flaunted rather than camouflaged: Too darn

bad.

That answer is a betrayal of our precedents, and of

federal statutes like the antitrust laws. Our decisions

have developed a mechanism—called the effective-

vindication rule—to prevent arbitration clauses from

choking off a plaintiff ’s ability to enforce congressionally

2 AMERICAN EXPRESS CO. v. ITALIAN COLORS

RESTAURANT

KAGAN, J., dissenting

created rights. That doctrine bars applying such a clause

when (but only when) it operates to confer immunity from

potentially meritorious federal claims. In so doing, the

rule reconciles the Federal Arbitration Act (FAA) with all

the rest of federal law—and indeed, promotes the most

fundamental purposes of the FAA itself. As applied here,

the rule would ensure that Amex’s arbitration clause does

not foreclose Italian Colors from vindicating its right to

redress antitrust harm.

The majority barely tries to explain why it reaches a

contrary result. It notes that we have not decided this

exact case before—neglecting that the principle we have

established fits this case hand in glove. And it concocts a

special exemption for class-arbitration waivers—ignoring

that this case concerns much more than that. Through-

out, the majority disregards our decisions’ central tenet:

An arbitration clause may not thwart federal law, ir-

respective of exactly how it does so. Because the Court

today prevents the effective vindication of federal statutory

rights, I respectfully dissent.

I

Start with an uncontroversial proposition: We would

refuse to enforce an exculpatory clause insulating a com-

pany from antitrust liability—say, “Merchants may bring

no Sherman Act claims”—even if that clause were con-

tained in an arbitration agreement. See ante, at 6. Con-

gress created the Sherman Act’s private cause of action

not solely to compensate individuals, but to promote “the

public interest in vigilant enforcement of the antitrust

laws.” Lawlor v. National Screen Service Corp., 349 U. S.

322, 329 (1955). Accordingly, courts will not enforce a

prospective waiver of the right to gain redress for an

antitrust injury, whether in an arbitration agreement or

any other contract. See Mitsubishi Motors Corp. v. Soler

Chrysler-Plymouth, Inc., 473 U. S. 614, 637, and n. 19

Cite as: 570 U. S. ____ (2013) 3

KAGAN, J., dissenting

(1985). The same rule applies to other important federal

statutory rights. See 14 Penn Plaza LLC v. Pyett, 556

U. S. 247, 273 (2009) (Age Discrimination in Employment

Act); Brooklyn Savings Bank v. O’Neil, 324 U. S. 697, 704

(1945) (Fair Labor Standards Act). But its necessity is

nowhere more evident than in the antitrust context.

Without the rule, a company could use its monopoly power

to protect its monopoly power, by coercing agreement to

contractual terms eliminating its antitrust liability.

If the rule were limited to baldly exculpatory provi-

sions, however, a monopolist could devise numerous ways

around it. Consider several alternatives that a party

drafting an arbitration agreement could adopt to avoid

antitrust liability, each of which would have the identical

effect. On the front end: The agreement might set out-

landish filing fees or establish an absurd (e.g., one-day)

statute of limitations, thus preventing a claimant from

gaining access to the arbitral forum. On the back end: The

agreement might remove the arbitrator’s authority to

grant meaningful relief, so that a judgment gets the

claimant nothing worthwhile. And in the middle: The

agreement might block the claimant from presenting the

kind of proof that is necessary to establish the defendant’s

liability—say, by prohibiting any economic testimony

(good luck proving an antitrust claim without that!). Or

else the agreement might appoint as an arbitrator an

obviously biased person—say, the CEO of Amex. The

possibilities are endless—all less direct than an express

exculpatory clause, but no less fatal. So the rule against

prospective waivers of federal rights can work only if it

applies not just to a contract clause explicitly barring a

claim, but to others that operate to do so.

And sure enough, our cases establish this proposition:

An arbitration clause will not be enforced if it prevents the

effective vindication of federal statutory rights, however it

achieves that result. The rule originated in Mitsubishi,

4 AMERICAN EXPRESS CO. v. ITALIAN COLORS

RESTAURANT

KAGAN, J., dissenting

where we held that claims brought under the Sherman Act

and other federal laws are generally subject to arbitration.

473 U. S., at 628. By agreeing to arbitrate such a claim,

we explained, “a party does not forgo the substantive

rights afforded by the statute; it only submits to their

resolution in an arbitral, rather than a judicial, forum.”

Ibid. But crucial to our decision was a limiting principle,

designed to safeguard federal rights: An arbitration clause

will be enforced only “so long as the prospective litigant

effectively may vindicate its statutory cause of action in

the arbitral forum.” Id., at 637. If an arbitration provi-

sion “operated . . . as a prospective waiver of a party’s

right to pursue statutory remedies,” we emphasized, we

would “condemn[ ]” it. Id., at 637, n. 19. Similarly, we

stated that such a clause should be “set[] aside” if “pro-

ceedings in the contractual forum will be so gravely diffi-

cult” that the claimant “will for all practical purposes be

deprived of his day in court.” Id., at 632 (internal quota-

tion marks omitted). And in the decades since Mitsubishi,

we have repeated its admonition time and again, instruct-

ing courts not to enforce an arbitration agreement that

effectively (even if not explicitly) forecloses a plaintiff from

remedying the violation of a federal statutory right. See

Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20, 28

(1991); Vimar Seguros y Reaseguros, S. A. v. M/V Sky

Reefer, 515 U. S. 528, 540 (1995); 14 Penn Plaza, 556 U. S.,

at 266, 273–274.

Our decision in Green Tree Financial Corp.-Ala. v. Ran-

dolph, 531 U. S. 79 (2000), confirmed that this principle

applies when an agreement thwarts federal law by making

arbitration prohibitively expensive. The plaintiff there

(seeking relief under the Truth in Lending Act) argued

that an arbitration agreement was unenforceable be-

cause it “create[d] a risk” that she would have to “bear

prohibitive arbitration costs” in the form of high filing and

administrative fees. Id., at 90 (internal quotation marks

Cite as: 570 U. S. ____ (2013) 5

KAGAN, J., dissenting

omitted). We rejected that contention, but not because we

doubted that such fees could prevent the effective vindica-

tion of statutory rights. To the contrary, we invoked our

rule from Mitsubishi, making clear that it applied to the

case before us. See 538 U. S., at 90. Indeed, we added a

burden of proof: “[W]here, as here,” we held, a party as-

serting a federal right “seeks to invalidate an arbitration

agreement on the ground that arbitration would be prohib-

itively expensive, that party bears the burden of showing

the likelihood of incurring such costs.” Id., at 92. Ran-

dolph, we found, had failed to meet that burden: The

evidence she offered was “too speculative.” Id., at 91. But

even as we dismissed Randolph’s suit, we reminded courts

to protect against arbitration agreements that make fed-

eral claims too costly to bring.

Applied as our precedents direct, the effective-

vindication rule furthers the purposes not just of laws like

the Sherman Act, but of the FAA itself. That statute

reflects a federal policy favoring actual arbitration—that

is, arbitration as a streamlined “method of resolving dis-

putes,” not as a foolproof way of killing off valid claims.

Rodriguez de Quijas v. Shearson/American Express, Inc.,

490 U. S. 477, 481 (1989). Put otherwise: What the FAA

prefers to litigation is arbitration, not de facto immunity.

The effective-vindication rule furthers the statute’s goals

by ensuring that arbitration remains a real, not faux,

method of dispute resolution. With the rule, companies

have good reason to adopt arbitral procedures that facili-

tate efficient and accurate handling of complaints. With-

out it, companies have every incentive to draft their

agreements to extract backdoor waivers of statutory

rights, making arbitration unavailable or pointless. So

down one road: More arbitration, better enforcement of

federal statutes. And down the other: Less arbitration,

poorer enforcement of federal statutes. Which would you

prefer? Or still more aptly: Which do you think Congress

6 AMERICAN EXPRESS CO. v. ITALIAN COLORS

RESTAURANT

KAGAN, J., dissenting

would?

The answer becomes all the more obvious given the

limits we have placed on the rule, which ensure that it

does not diminish arbitration’s benefits. The rule comes

into play only when an agreement “operate[s] . . . as a

prospective waiver”—that is, forecloses (not diminishes) a

plaintiff ’s opportunity to gain relief for a statutory viola-

tion. Mitsubishi, 473 U. S., at 637, n. 19. So, for example,

Randolph assessed whether fees in arbitration would be

“prohibitive” (not high, excessive, or extravagant). 531

U. S., at 90. Moreover, the plaintiff must make that show-

ing through concrete proof: “[S]peculative” risks, “un-

founded assumptions,” and “unsupported statements” will

not suffice. Id., at 90–91, and n. 6. With the inquiry that

confined and the evidentiary requirements that high,

courts have had no trouble assessing the matters the rule

makes relevant. And for almost three decades, courts

have followed our edict that arbitration clauses must

usually prevail, declining to enforce them in only rare

cases. See Brief for United States as Amicus Curiae 26–

27. The effective-vindication rule has thus operated year

in and year out without undermining, much less “de-

stroy[ing],” the prospect of speedy dispute resolution that

arbitration secures. Ante, at 9.

And this is just the kind of case the rule was meant to

address. Italian Colors, as I have noted, alleges that

Amex used its market power to impose a tying arrange-

ment in violation of the Sherman Act. The antitrust laws,

all parties agree, provide the restaurant with a cause of

action and give it the chance to recover treble damages.

Here, that would mean Italian Colors could take home up

to $38,549. But a problem looms. As this case comes to

us, the evidence shows that Italian Colors cannot prevail

in arbitration without an economic analysis defining the

relevant markets, establishing Amex’s monopoly power,

showing anticompetitive effects, and measuring damages.

Cite as: 570 U. S. ____ (2013) 7

KAGAN, J., dissenting

And that expert report would cost between several hun-

dred thousand and one million dollars.1 So the expense

involved in proving the claim in arbitration is ten times

what Italian Colors could hope to gain, even in a best-case

scenario. That counts as a “prohibitive” cost, in Ran-

dolph’s terminology, if anything does. No rational actor

would bring a claim worth tens of thousands of dollars

if doing so meant incurring costs in the hundreds of

thousands.

An arbitration agreement could manage such a mis-

match in many ways, but Amex’s disdains them all. As

the Court makes clear, the contract expressly prohibits

class arbitration. But that is only part of the problem.2

The agreement also disallows any kind of joinder or con-

solidation of claims or parties. And more: Its confidential-

ity provision prevents Italian Colors from informally

arranging with other merchants to produce a common

expert report. And still more: The agreement precludes

any shifting of costs to Amex, even if Italian Colors pre-

vails. And beyond all that: Amex refused to enter into any

stipulations that would obviate or mitigate the need for

——————

1 The evidence relating to these costs comes from an affidavit submit-

ted by an economist experienced in proving similar antitrust claims.

The Second Circuit found that Amex “ha[d] brought no serious chal-

lenge” to that factual showing. See, e.g., 667 F. 3d 204, 210 (2012).

And in this Court, Amex conceded that Italian Colors would need an

expert economic report to prevail in arbitration. See Tr. of Oral Arg.

15. Perhaps that is not really true. A hallmark of arbitration is its use

of procedures tailored to the type of dispute and amount in controversy;

so arbitrators might properly decline to demand such a rigorous eviden-

tiary showing in small antitrust cases. But that possibility cannot

disturb the factual premise on which this case comes to us, and which

the majority accepts: that Italian Colors’s tying claim is an ordinary

kind of antitrust claim; and that it is worth about a tenth the cost of

arbitration.

2 The majority contends that the class-action waiver is the only part

we should consider. See ante, at 7–8, n. 4. I explain below why that

assertion is wrong. See infra, at 11–12.

8 AMERICAN EXPRESS CO. v. ITALIAN COLORS

RESTAURANT

KAGAN, J., dissenting

the economic analysis. In short, the agreement as applied

in this case cuts off not just class arbitration, but any

avenue for sharing, shifting, or shrinking necessary costs.

Amex has put Italian Colors to this choice: Spend way,

way, way more money than your claim is worth, or relin-

quish your Sherman Act rights.

So contra the majority, the court below got this case

right. Italian Colors proved what the plaintiff in Ran-

dolph could not—that a standard-form agreement, taken

as a whole, renders arbitration of a claim “prohibitively

expensive.” 531 U. S., at 92. The restaurant thus estab-

lished that the contract “operate[s] . . . as a prospective

waiver,” and prevents the “effective[ ] . . . vindicat[ion]” of

Sherman Act rights. Mitsubishi, 473 U. S., at 637, and

n. 19. I would follow our precedents and decline to compel

arbitration.

II

The majority is quite sure that the effective-vindication

rule does not apply here, but has precious little to say

about why. It starts by disparaging the rule as having

“originated as dictum.” Ante, at 6. But it does not rest on

that swipe, and for good reason. As I have explained, see

supra, at 3–4, the rule began as a core part of Mitsubishi:

We held there that federal statutory claims are subject to

arbitration “so long as” the claimant “effectively may

vindicate its [rights] in the arbitral forum.” 473 U. S., at

637 (emphasis added). The rule thus served as an essen-

tial condition of the decision’s holding.3 And in Randolph,

——————

3 The majority is dead wrong when it says that Mitsubishi reserved

judgment on “whether the arbitration agreement’s potential depriva-

tion of a claimant’s right to pursue federal remedies may render that

agreement unenforceable.” Ante, at 6, n. 2. What the Mitsubishi Court

had “no occasion to speculate on” was whether a particular agreement

in fact eliminated the claimant’s federal rights. 473 U. S., at 673, n. 19.

But we stated expressly that if the agreement did so (as Amex’s does),

Cite as: 570 U. S. ____ (2013) 9

KAGAN, J., dissenting

we provided a standard for applying the rule when a

claimant alleges “prohibitive costs” (“Where, as here,” etc.,

see supra, at 5), and we then applied that standard to the

parties before us. So whatever else the majority might

think of the effective-vindication rule, it is not dictum.

The next paragraph of the Court’s decision (the third of

Part IV) is the key: It contains almost the whole of the

majority’s effort to explain why the effective-vindication

rule does not stop Amex from compelling arbitration. The

majority’s first move is to describe Mitsubishi and Ran-

dolph as covering only discrete situations: The rule, the

majority asserts, applies to arbitration agreements that

eliminate the “right to pursue statutory remedies” by

“forbidding the assertion” of the right (as addressed in

Mitsubishi) or imposing filing and administrative fees “so

high as to make access to the forum impracticable” (as

addressed in Randolph). Ante, at 6 (emphasis deleted;

internal quotation marks omitted). Those cases are not

this case, the majority says: Here, the agreement’s provi-

sions went to the possibility of “proving a statutory rem-

edy.” Ante, at 7.

But the distinction the majority proffers, which excludes

problems of proof, is one Mitsubishi and Randolph (and

our decisions reaffirming them) foreclose. Those decisions

establish what in some quarters is known as a principle:

When an arbitration agreement prevents the effective

vindication of federal rights, a party may go to court.

That principle, by its nature, operates in diverse circum-

stances—not just the ones that happened to come before the

Court. See supra, at 3–4. It doubtless covers the baldly

exculpatory clause and prohibitive fees that the majority

acknowledges would preclude an arbitration agreement’s

enforcement. But so too it covers the world of other provi-

sions a clever drafter might devise to scuttle even the most

——————

we would invalidate it. Ibid.; see supra, at 4.

10 AMERICAN EXPRESS CO. v. ITALIAN COLORS

RESTAURANT

KAGAN, J., dissenting

meritorious federal claims. Those provisions might deny

entry to the forum in the first instance. Or they might

deprive the claimant of any remedy. Or they might pre-

vent the claimant from offering the necessary proof to

prevail, as in my “no economic testimony” hypothetical—

and in the actual circumstances of this case. See supra, at

3. The variations matter not at all. Whatever the precise

mechanism, each “operate[s] . . . as a prospective waiver of

a party’s [federal] right[s]”—and so confers immunity on a

wrongdoer. Mitsubishi, 473 U. S., at 637, n. 19. And that

is what counts under our decisions.4

Nor can the majority escape the principle we have estab-

lished by observing, as it does at one point, that Amex’s

agreement merely made arbitration “not worth the ex-

pense.” Ante, at 7. That suggestion, after all, runs smack

into Randolph, which likewise involved an allegation that

arbitration, as specified in a contract, “would be prohibi-

tively expensive.” 531 U. S., at 92. Our decision there

made clear that a provision raising a plaintiff ’s costs could

foreclose consideration of federal claims, and so run afoul

of the effective-vindication rule. The expense at issue in

Randolph came from a filing fee combined with a per-diem

payment for the arbitrator. But nothing about those

particular costs is distinctive; and indeed, a rule confined

to them would be weirdly idiosyncratic. Not surprisingly,

then, Randolph gave no hint of distinguishing among the

different ways an arbitration agreement can make a claim

——————

4 Gilmer and Vimar Seguros, which the majority relies on, see ante, at

8, fail to advance its argument. The plaintiffs there did not claim, as

Italian Colors does, that an arbitration clause altogether precluded

them from vindicating their federal rights. They averred only that

arbitration would be less convenient or effective than a proceeding in

court. See Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20, 31–

32 (1991); Vimar Seguros y Reaseguros, S. A. v. M/V Sky Reefer, 515

U. S. 528, 533 (1995). As I have explained, that kind of showing does

not meet the effective-vindication rule’s high bar. See supra, at 6.

Cite as: 570 U. S. ____ (2013) 11

KAGAN, J., dissenting

too costly to bring. Its rationale applies whenever an

agreement makes the vindication of federal claims impos-

sibly expensive—whether by imposing fees or proscribing

cost-sharing or adopting some other device.

That leaves the three last sentences in the majority’s

core paragraph. Here, the majority conjures a special

reason to exclude “class-action waiver[s]” from the effective-

vindication rule’s compass. Ante, at 7–8, and n. 4.

Rule 23, the majority notes, became law only in 1938—

decades after the Sherman Act. The majority’s conclusion:

If federal law in the interim decades did not eliminate a

plaintiff ’s rights under that Act, then neither does this

agreement.

But that notion, first of all, rests on a false premise: that

this case is only about a class-action waiver. See ante, at

7, n. 4 (confining the case to that issue). It is not, and

indeed could not sensibly be. The effective-vindication

rule asks whether an arbitration agreement as a whole

precludes a claimant from enforcing federal statutory

rights. No single provision is properly viewed in isolation,

because an agreement can close off one avenue to pursue a

claim while leaving others open. In this case, for example,

the agreement could have prohibited class arbitration

without offending the effective-vindication rule if it had

provided an alternative mechanism to share, shift, or

reduce the necessary costs. The agreement’s problem is

that it bars not just class actions, but also all mecha-

nisms—many existing long before the Sherman Act, if that

matters—for joinder or consolidation of claims, informal

coordination among individual claimants, or amelioration

of arbitral expenses. See supra, at 7. And contrary to the

majority’s assertion, the Second Circuit well understood

that point: It considered, for example, whether Italian

Colors could shift expert expenses to Amex if its claim

prevailed (no) or could join with merchants bringing simi-

lar claims to produce a common expert report (no again).

12 AMERICAN EXPRESS CO. v. ITALIAN COLORS

RESTAURANT

KAGAN, J., dissenting

See 554 F. 3d 300, 318 (2009). It is only in this Court that

the case has become strangely narrow, as the majority

stares at a single provision rather than considering, in the

way the effective-vindication rule demands, how the entire

contract operates.5

In any event, the age of the relevant procedural mecha-

nisms (whether class actions or any other) does not mat-

ter, because the effective-vindication rule asks about the

world today, not the world as it might have looked when

Congress passed a given statute. Whether a particular

procedural device preceded or post-dated a particular

statute, the question remains the same: Does the arbi-

tration agreement foreclose a party—right now—from

effectively vindicating the substantive rights the statute

provides? This case exhibits a whole raft of changes since

Congress passed the Sherman Act, affecting both parties

to the dispute—not just new procedural rules (like Rule

23), but also new evidentiary requirements (like the

demand here for an expert report) and new contract provi-

sions affecting arbitration (like this agreement’s confiden-

tiality clause). But what has stayed the same is this:

Congress’s intent that antitrust plaintiffs should be able to

enforce their rights free of any prior waiver. See supra, at

2–3; Mitsubishi, 473 U. S., at 637, n. 19. The effective-

vindication rule carries out that purpose by ensuring that

——————

5 In defense of this focus, the majority quotes the Second Circuit as

concluding that “the only economically feasible means” for Italian

Colors to enforce its statutory rights “is via a class action.” Ante, at 7–

8, n. 4 (quoting 667 F. 3d, at 218; internal quotation marks omitted;

emphasis added by the Court). But the Court of Appeals reached that

conclusion only after finding that the agreement prohibited all other

forms of cost-sharing and cost-shifting. See 554 F. 3d 300, 318 (2009).

(That opinion was vacated on other grounds, but its analysis continued

to inform—indeed, was essential to—the Second Circuit’s final decision

in the case. See 667 F. 3d, at 218.) The Second Circuit therefore did

exactly what the majority refuses to do—look to the agreement as a

whole to determine whether it permits the vindication of federal rights.

Cite as: 570 U. S. ____ (2013) 13

KAGAN, J., dissenting

any arbitration agreement operating as such a waiver is

unenforceable. And that requires courts to determine in

the here and now—rather than in ye olde glory days—

whether an agreement’s provisions foreclose even merito-

rious antitrust claims.

Still, the majority takes one last stab: “Truth to tell,” it

claims, AT&T Mobility LLC v. Concepcion, 563 U. S. ___

(2011), “all but resolves this case.” Ante, at 8. In that

decision, the majority recounts, this Court held that the

FAA preempted a state “law conditioning enforcement of

arbitration on the availability of class procedure.” Ibid.;

see 563 U. S., at ___ (slip op., at 9). According to the ma-

jority, that decision controls here because “[w]e specifically

rejected the argument that class arbitration was neces-

sary.” Ante, at 9.

Where to begin? Well, maybe where I just left off:

Italian Colors is not claiming that a class action is

necessary—only that it have some means of vindicating a

meritorious claim. And as I have shown, non-class options

abound. See supra, at 11. The idea that AT&T Mobility

controls here depends entirely on the majority’s view that

this case is “class action or bust.” Were the majority to

drop that pretense, it could make no claim for AT&T

Mobility’s relevance.

And just as this case is not about class actions, AT&T

Mobility was not—and could not have been—about the

effective-vindication rule. Here is a tip-off: AT&T Mobility

nowhere cited our effective-vindication precedents. That

was so for two reasons. To begin with, the state law in

question made class-action waivers unenforceable even

when a party could feasibly vindicate her claim in an

individual arbitration. The state rule was designed to

preserve the broad-scale “deterrent effects of class ac-

tions,” not merely to protect a particular plaintiff ’s right

to assert her own claim. 563 U. S., at ___ (slip op., at 3).

Indeed, the Court emphasized that the complaint in that

14 AMERICAN EXPRESS CO. v. ITALIAN COLORS

RESTAURANT

KAGAN, J., dissenting

case was “most unlikely to go unresolved” because AT&T’s

agreement contained a host of features ensuring that

“aggrieved customers who filed claims would be essentially

guaranteed to be made whole.” Id., at ___ (slip op., at

17–18) (internal quotation marks and brackets omitted).

So the Court professed that AT&T Mobility did not impli-

cate the only thing (a party’s ability to vindicate a merito-

rious claim) this case involves.

And if that is not enough, AT&T Mobility involved a

state law, and therefore could not possibly implicate the

effective-vindication rule. When a state rule allegedly

conflicts with the FAA, we apply standard preemption

principles, asking whether the state law frustrates the

FAA’s purposes and objectives. If the state rule does so—

as the Court found in AT&T Mobility—the Supremacy

Clause requires its invalidation. We have no earthly

interest (quite the contrary) in vindicating that law. Our

effective-vindication rule comes into play only when the

FAA is alleged to conflict with another federal law, like

the Sherman Act here. In that all-federal context, one law

does not automatically bow to the other, and the effective-

vindication rule serves as a way to reconcile any tension

between them. Again, then, AT&T Mobility had no occa-

sion to address the issue in this case. The relevant deci-

sions are instead Mitsubishi and Randolph.

* * *

The Court today mistakes what this case is about. To a

hammer, everything looks like a nail. And to a Court bent

on diminishing the usefulness of Rule 23, everything looks

like a class action, ready to be dismantled. So the Court

does not consider that Amex’s agreement bars not just

class actions, but “other forms of cost-sharing . . . that

could provide effective vindication.” Ante, at 7, n. 4. In

short, the Court does not consider—and does not decide—

Italian Colors’s (and similarly situated litigants’) actual

Cite as: 570 U. S. ____ (2013) 15

KAGAN, J., dissenting

argument about why the effective-vindication rule pre-

cludes this agreement’s enforcement.

As a result, Amex’s contract will succeed in depriving

Italian Colors of any effective opportunity to challenge

monopolistic conduct allegedly in violation of the Sherman

Act. The FAA, the majority says, so requires. Do not be

fooled. Only the Court so requires; the FAA was never

meant to produce this outcome. The FAA conceived of

arbitration as a “method of resolving disputes”—a way of

using tailored and streamlined procedures to facilitate

redress of injuries. Rodriguez de Quijas, 490 U. S., at 481

(emphasis added). In the hands of today’s majority, arbi-

tration threatens to become more nearly the opposite—a

mechanism easily made to block the vindication of merito-

rious federal claims and insulate wrongdoers from liabil-

ity. The Court thus undermines the FAA no less than it

does the Sherman Act and other federal statutes providing

rights of action. I respectfully dissent.