On May 29, 2012, the Second Circuit denied rehearing to Nat’l Supermarkets Ass’n v. Am. Express Travel Servs. Co. (In re Am. Express Merchants’ Litig.), No. 06-1871 cv (2d Cir. May 29, 2012). The underlying case (“Amex III”) had concluded that AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740 (2011) addresses state contract rights and does not apply to Amex III since Amex III deals with federal statutory rights.
Judge Pooler, concurring in the denial of rehearing en banc stated the following:
The limited holding in this case is not governed by the Supreme Court’s reasoning in AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740, 179 L. Ed. 2d 742 (2011). Concepcion holds that the Federal Arbitration Act (“FAA”) preempts state laws hostile to arbitration, and focuses its analysis on preemption issues. In contrast, analysis in Amex III rests squarely on a vindication of statutory rights analysis – an issue untouched in Concepcion.”