[3] The Circuit stood by its reversal when this Court remanded in light of Stolt-Nielsen S. A. v. AnimalFeeds International Corp., which held that a party may not be compelled to submit to class arbitration absent an agreement to do so.

By barring any means of sharing or shrinking arbitration costs, the arbitration clause in the American Express form contract functions to confer immunity from potentially meritorious federal claims, which runs counter to the purpose of the FAA ("No rational actor would bring a claim worth tens of thousands of dollars if doing so meant incurring costs in the hundreds of thousands").

The contract also violates the Sherman Act by depriving parties of a chance to challenge allegedly monopolistic conduct.

[7] A 2013 analysis in Harvard Law Review stated that: "The Court’s [Italian Colors] decision makes it likely that many federal statutes will no longer be enforced privately in certain contexts, further weakening a judicially created principle that was already difficult to apply.

Thus, it is now up to Congress to determine whether, and in what contexts, it favors contractual freedom in arbitration agreements over private enforcement of federal statutes.