In AT&T Mobility LLC v. Concepcion,1 the Supreme Court gave prominence to the enforceability of class action waivers in arbitration provisions. However, in a recent decision, the U.S. Court of Appeals for the Second Circuit held unenforceable a class action waiver in an antitrust case. The Feb. 1, 2012, decision in In re American Express Merchants’ Litigation,2 turned on the court’s finding that arbitrating on an individual basis would be prohibitively costly, such that plaintiffs would be unable to enforce their statutory rights under the antitrust laws.

In light of the Second Circuit’s decision, it remains uncertain how broadly Concepcion will be applied and, accordingly, whether arbitration costs like those in American Express will be sufficient to invalidate class action waivers where the issue does not concern preemption of a state law but instead deals with the plaintiffs’ ability to vindicate their federal statutory rights.

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