On Tuesday, May 29, 2012, the Second Circuit denied en banc rehearing in In re American Express Merchants' Litigation, No. 06-1871 (2d Cir. May 29, 2012).
That is the case in which the three-judge panel declined, post-Concepcion, to enforce an arbitration clause with a class-action ban because doing so would preclude effective vindication of statutory rights. In re American Express Merchants’ Litig., 667 F.3d 204 (2nd Cir. 2012) ("Amex III").
The order denying en banc rehearing is accompanied by a concurring opinion and three dissenting opinions, all of which are of interest. The dissenting opinion of Judge Cabranes reads, in full:
I concur fully in the thorough opinion of Chief Judge Jacobs dissenting from the denial of in banc review. I write separately simply to underscore that the issue at hand is indisputably important, creates a circuit split, and surely deserves further appellate review. This is one of those unusual cases where one can infer that the denial of in banc review can only be explained as a signal that the matter can and should be resolved by the Supreme Court.
According to Chief Judge Jacobs' dissenting opinion, the split is with the Ninth Circuit's opinion in Coneff v. AT&T Corp., 673 F.3d 14 1155, (9th Cir. 2012). The concurring opinion by Judge Pooler, however, explains that there is in fact no split between Amex III and Coneff.
Certainly we can expect a cert. petition to be filed in this case. Whether it will be granted is another question.