Supreme Court’s Amex Decision Leads to Reversal of State Supreme Court’s Invalidation of Class Action Waiver

Eight days prior to the release of the U.S. Supreme Court’s June 20, 2013 decision in American Express Co. v. Italian Colors Restaurant (“Amex”), the Massachusetts Supreme Judicial Court (“SJC”), in Feeney v. Dell, Inc., invalidated an arbitration agreement containing a class action waiver. The court found the plaintiffs had demonstrated they could not pursue their claims in individual arbitration given the high costs that would be required and relatively small damages that each individual plaintiff could recover. In arriving at its decision, the SJC relied on similar rationale used by the Second Circuit in In re American Express Merchants’ Litigation, which at the time was pending before the U.S. Supreme Court. The SJC expressed its belief that AT&T Mobility LLC v. Concepcion allowed the invalidation of a class-action waiver that “operate[s] in practice to deny a willing plaintiff any and all practical means of pursuing a claim against a defendant.”