Maybe class action waivers will not completely deny employees the ability to file class actions against employers who violate wage and hour laws as we had feard might happen after the decision in Concepcion (AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (April 27, 2010).  The Second Federal Circuit invalidated an arbitration agreement with such a waiver in an antitrust case, giving us hope that not all class action waivers will prevent access to the class action procedure.  (American Express Merchants' Litigation, 2012 WL 284518 (2d Cir. Feb. 1, 2012).)

A class of merchants sued American Express because the merchants believed that American Express forced them to sign an illegal tying agreement. The agreement had an arbitration clause that forbid class action arbitration. American Express moved to compel arbitration.

The Court found that where the expense of bringing a claim is too great to justify bringing the case for an individual, a class action waiver is invalid.  (See, Green Tree Financial Corp., 531 U.S. 79 (2000), and Mitsubishi Motors, 473 U.S. 614 (1985)--arbitration agreements may be invalidated when a party proves that the costs are too great.)  It based its decision on expert testimony.  The Named Plaintiff's expert said that the expert fees for that type of antitrust case would total to about $1,000,000 and that, in contrast, the damages were only $40,000.

The United States Supreme Court may still choose to review the holding in this case.  If not, then the holding will stand.  If the Supreme Court decides to review the case, then we will need to wait to see what the Supreme law of the land will be.