American Express Wins Dismissal After Trial and Affirmance on Appeal of Antitrust Class Action Concerning Cardholder Arbitration Clauses

On April 10, 2014, Judge William H. Pauley III of the United States District Court for the Southern District of New York entered judgment on the merits in favor Cravath client American Express in Ross, et al. v. American Express Co., et al., No. 04‑cv‑5723. This judgment followed a five‑week bench trial in January and February 2013. In their complaint, a class of consumers alleged that American Express had conspired with other credit card issuers, in violation of the Sherman Act, to adopt arbitration clauses barring class actions in card member agreements. Most of the card issuers settled the claims against them, but American Express and two others chose to proceed to trial. In his decision after trial, Judge Pauley held that plaintiffs did not prove the existence of an agreement among the issuers to adopt arbitration clauses, finding that “the record indicates that the final decision to adopt class‑action‑barring arbitration clauses was something the [card issuers] hashed out individually and internally.”

On November 19, 2015, the United States Court of Appeals for the Second Circuit entered a unanimous decision affirming the District Court’s judgment. Cravath partner Rowan D. Wilson argued the appeal on behalf of American Express.

In addition to Rowan, the Cravath team included partners Evan R. Chesler and Gary A. Bornstein and associates Lillian S. Grossbard, Katherine A. Rocco, M. Brent Byars, Daniel P. Margolskee and Justin C. Clarke.