The U.S. Court of Appeals for the Second Circuit will not rehear en banc a decision that holds a class action arbitration waiver provision between American Express and its merchants unenforceable as against public policy.
Cementing a split in the circuits that makes review by the U.S. Supreme Court all the more likely, a majority of active judges on the circuit voted against full rehearing in In re American Express Merchants Association, 06-1871, where Judges Rosemary Pooler and Robert Sack found in February that merchants and supermarkets could not be forced into individual arbitration by Amex (NYLJ, Feb. 2).
