Class Action Arbitration for Antitrust Disputes: Recent Developments

Vol. 43 No. 1

By

Viren Mascarenhas is an associate in the International Arbitration Group of Freshfields Bruckhaus Deringer US LLP, in New York. He is also vice chair of the SIL’s International Courts Committee and International Pro Bono Committee.

The U.S. Supreme Court has issued two decisions recently, including one in the 2012–2013 term, that have the potential to limit whether antitrust claims may effectively be arbitrated when the arbitration agreement includes a class action waiver.

Class Action Arbitration in the United States

U.S.-styled class actions are well-known all over the world. A class action is a civil lawsuit, typically brought in the area of mass torts or consumer litigation by named plaintiffs who represent a large number of similarly situated individuals bringing related claims against a common defendant. In Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 473 U.S. 614 (1985), the Supreme Court held that antitrust claims arising under the Sherman Act that fall within the scope of an arbitration clause in an agreement were arbitrable. Following the Court’s 2003 decision in Green Tree Financial Corp. v. Bazzle, 539 U.S. 444 (2003), it appeared clear that class actions could be arbitrated before an arbitral tribunal in the United States. Accordingly, it stood to reason that parties could conceivably resolve their antitrust disputes through class action arbitration.

Following Green Tree, arbitral institutions issued rules to encourage class arbitration. For example, the American Arbitration Association issued its Supplementary Rules for Class Arbitrations that went into effect on October 8, 2003. An increase in the number of U.S. class action arbitrations was expected, including in the area of antitrust law, because individual claimants became able to join a class action to arbitrate their individual claims more economically.

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