The U.S. Court of Appeals for the Second Circuit keeps getting the same case and keeps coming up with the same answer: A class action waiver provision in American Express contracts with merchants is unenforceable under the Federal Arbitration Act.
For the third time in less than three years, in a case that has twice come back to the Second Circuit because of fresh case law from the U.S. Supreme Court, the circuit ruled both that the enforceability of the provision was an issue “properly decided by the court” and that the American Express (Amex) provision was unenforceable as against public policy as embodied in the act.
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