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District of Connecticut Enforces Amex Arbitration Clause Where Cardmember Did Not “Opt Out”

In a dispute involving fraudulent charges, the District of Connecticut required American Express and the cardmember to resolve their issue in arbitration, pursuant to the cardmember agreement, as amended. AmEx provided notice of the arbitration provision in a document titled “Important Changes to Your Account Terms,” which explained the changes to the arbitration provision and stated that cardmembers have the opportunity to reject the provision, which the cardmember here did not. The cardmember “claimed to have no recollection of any Arbitration Provision contained in his Cardmember Agreement nor any recollection of receiving any particular amendment to his Cardmember Agreement which imposed an Arbitration provision, or which required him to opt out of an Arbitration participation.” Nonetheless, the cardmember admitted that, at all times relevant, “he and his accounts were subject to the terms of a Cardmember Agreement.”

The cardmember did not deny receipt of the amendment or refute any evidence provided by AmEx “that he was, in fact, mailed the various amendments to his Cardmember Agreements.” Accordingly, the court determined that the cardmember’s use of his credit card after receiving the various amendments to his cardholder agreement constituted acceptance of their terms, including the arbitration provisions contained therein.

Errato v. Am. Express Co., No. 3:18-cv-01634 (D. Conn. Aug. 23, 2019).

©2011-2020 Carlton Fields, P.A. National Law Review, Volume IX, Number 259


About this Author

Nora A. Valenza-Frost, Carlton Fields, Insurance lawyer

Nora Valenza-Frost represents U.S. and international insurers and reinsurers in arbitration and litigation involving complex claims, coverage and regulatory issues across all lines of business.

Nora provides coverage opinions for claims involving several lines of business, including commercial general liability (CGL), professional liability, directors and officers liability (D&O), contractor’s protective professional indemnity (CPPI), errors and omissions (E&O), excess and surplus lines, property, workers’ compensation, business interruption, life and health, pollution,...