The U.S. Supreme Court yesterday enforced an arbitration agreement prohibiting class arbitration of antitrust claims, even though the plaintiffs showed that it was uneconomical for them each to pursue claims individually.
In American Express v. Italian Colors Restaurant, a group of merchants claimed that the terms of their agreement to accept American Express cards violated the antitrust laws. The same agreement required arbitration of claims, but prevented the merchants from pursuing class arbitration. The merchants nonetheless sought to pursue class arbitration of the antitrust claims, arguing that the cost of expert analysis necessary to prove the claims would greatly exceed the maximum recovery for an individual plaintiff. The merchants pointed to the 'effective vindication' rule: an arbitration clause will not be enforced if it prevents the effective vindication of federal statutory rights.
Writing for the majority, Justice Scalia stated that the effective vindication rule addresses only whether the plaintiff retains the right to pursue a remedy, not whether it is cost-effective to do so. Here, because plaintiffs did not give up their right to pursue a remedy under the antitrust law when they signed the contract with American Express, the prohibition on class arbitration was enforceable. A dissent written by Justice Kagan criticized the majority for concluding, in effect, that a "monopolist gets to use its monopoly power to insist on a contract effectively depriving its victims of all legal recourse."
The Oregon Court of Appeals held last year that a non-judicial foreclosure cannot occur if an assignment of the beneficial interest in the loan obligation was not recorded, putting the breaks on non-judicial foreclosures in cases in which MERS -- the system used by lenders to electronically track the transfer of beneficial interests -- was designated as beneficiary of the trust deed.
The Supreme Court earlier this month concluded in Niday that "even if MERS lacks authority to act as the trust deed's beneficiary, it may have authority to act on behalf of the beneficiary if its can demonstrate that it has an agency relationship with the beneficiary." Thus, if MERS can establish that it has such an agency relationship, lenders will again be able to take advantage of Oregon's law allowing foreclosure by a private, advertised trustee's sale rather than through a court-ordered foreclosure.
See our earlier coverage of the MERS litigation here.
In case you may have missed it, one of the employment laws that passed in the 2013 Oregon legislative session is SB 1, which provides employees who are veterans and scheduled to work on November 11 a day off in observance of Veteran's Day. Qualifying employees are entitled to take Veteran's Day off unless it would seriously disrupt the employer's business or cause undue hardship, in which case the employees are entitled to take a different day off. Employers may provide the day off paid or unpaid.
The bill went into effect upon passage, so it will apply to Veteran's Day in 2013.