Class Action Litigation Trends Post-Italian Colors

Many practitioners believed the U.S. Supreme Court’s decision enforcing a class action waiver in American Express Co. v. Italian Colors Restaurant spelled the death knell to consumer and employment class action litigation arising out of a contractual relationship. There, the Supreme Court held that a class action waiver was enforceable to preclude an antitrust class action. Supreme Court Justice Elena Kagan summed up the projected impact of American Express in her strongly worded dissent: “The monopolist gets to use its monopoly power to insist on a contract effectively depriving its victims of all legal recourse. And here is a nutshell version of today’s opinion, admirably flaunted rather than camouflaged: Too darn bad.”