Riding the Waiver: In re American Express Merchants' Litigation and the Future of the Vindication of Statutory Rights

Abstract

On February 1, 2012, the U.S. Court of Appeals for the Second Circuit held in In re American Express Merchants’ Litigation that a class action waiver was unenforceable because class litigation was the only economically feasible way for the plaintiffs to vindicate their statutory rights under the Sherman Act. In doing so, the Second Circuit properly balanced the policy underlying the Federal Arbitration Act and the policy favoring the vindication of rights provided by federal statute. This Comment argues that the Second Circuit properly interpreted the vindication of statutory rights analysis in light of U.S. Supreme Court jurisprudence.