On remand from the U.S. Supreme Court, and in a pre-Concepcion case, the Second Circuit didn’t budge from its original decision: A class action waiver is unenforceable when it would effectively shut down an action seeking to vindicate statutory rights. In re Am. Express Merchants’ Litig., 634 F.3d 187 (2d Cir. Mar. 3, 2011). In light of its holding in Stolt-Nielsen SA v. AnimalFeeds Int’l Corp., 130 S. Ct. 1758 (2010), the Supreme Court remanded the case for reconsideration. But the Second Circuit said that decision didn’t change its analysis and held that a plaintiff can challenge a class action waiver clause on the ground that it would be costprohibitive to pursue a statutory right on an individual basis, so long as the plaintiff provides sufficient supporting proof. The court also “again conclude[d] that (1) the question of the enforceability of the class action waiver provision is properly decided by the court and (2) the class action waiver provision is unenforceable under the Federal Arbitration Act.” The court made clear that there is not a bright line rule that all class action waivers in arbitration agreements are unenforceable; each case must be examined on its own merits.