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The National Grocers Association (NGA), along with the National Community Pharmacists Association (NCPA), and National Association of Convenience Stores (NACS) has submitted a brief to the Supreme Court of the United States, as amici curiae, in American Express Company et al. v. Italian Colors Restaurant et al on behalf of the associations and their members in support of the merchant plaintiffs in that proceeding.
"Most small business members have no choice but to enter into arrangements with credit card payment networks, health insurance companies and other suppliers of goods and services that wield substantial market power,” said the three associations. “In many of these current and prospective arrangements, these suppliers, like American Express, are insisting that our small business members waive their ability to privately enforce antitrust law via a class action -- a procedure that has necessarily been and must often been utilized by our small business members to remediate losses caused by suppliers' anticompetitive conduct and to enjoin such illegal conduct from continuing. If these class action waivers that have been forced upon our members are held to always be enforceable, even where our members would be deprived of effectively vindicating their rights under antitrust law, our members will suffer substantial harm."
"NGA strongly supports the Second Circuit's decision in this case," said Tom Wenning, EVP and general counsel for NGA. "The Court followed settled law by requiring class action waivers in contracts be reviewed, case by case, and stricken if they preclude effective private antitrust enforcement. NGA members and other businesses will be deprived of the substantial ability to constrain anticompetitive conduct by dominant health insurance and credit card companies, like American Express, if the Second Circuit's decision is reversed."
The National Grocers Association is the national trade association representing the retail and wholesale grocers that comprise the independent sector of the food distribution industry.