We ask ourselves this question after the 2nd Circuit issued an opinion on Feb. 1, 2012 in In re Am. Express Merchants’ Litigation, No. 06-1871-civ, --- F.3d ----, 2012 WL 284518 (2d Cir. Feb. 1, 2012) (“Amex III”), which reaffirmed its previous ruling that a class action waiver in an arbitration agreement that would prevent plaintiffs from bringing an antitrust class action under the Sherman and Clayton Acts is unenforceable. The 2nd Circuit clarified that it did not hold that class action waivers in arbitration agreements are per se unenforceable in the context of antitrust actions. However, based on the 2nd Circuit’s ruling and other lower courts’ analyses regarding the enforceability of class action waivers in the context of Clayton Act actions, could that be the practical effect of this decision if allowed to stand?
The vindication of federal statutory rights is a critical issue in cases analyzing the application of AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011) to waivers that affect federal claims. In the Dec. 29, 2011 column, we discussed that courts have ruled that antitrust actions brought under the Clayton Act are exempt from class action waivers because actions under the Clayton Act are representative actions and cannot be brought on an individual basis. Therefore, courts have seen these class action waivers as preventing individuals from vindicating federal statutory rights when applied to Clayton Act actions. I also discussed the possibility that prohibitively costly arbitration may be considered sufficient grounds to invalidate such a class action waiver based on the U.S. Supreme Court’s decision in Green Tree Financial Corp.-Alabama v. Randolph, 531 U.S. 79 (2000). While some district courts have recognized that Concepcion foreclosed this argument, other courts questioned that conclusion. At the time, the 2nd Circuit was reconsidering its previous decisions in In re Am. Express Merchs. Litig., 554 F.3d 300 (2d Cir. 2009) and In re American Express Merchants’ Litigation, 634 F.3d 187, 196 (2d Cir. 2011) in light of the U.S. Supreme Court’s decision in Concepcion.