The Tenth Circuit allowed a plaintiff representing a putative class action of students to defeat a motion to compel arbitration under the judicially-recognized “effective vindication” exception to the Federal Arbitration Act (“FAA”).  Nesbitt v. FCNH, Inc., 811 F.3d 371 (10th Cir. 2016) (No. 14-1502).  Plaintiffs alleged that their massage therapy school violated the Fair Labor Standards Act by requiring the students to provide massage therapy services to clients without pay.  The school moved to compel arbitration, citing the arbitration clause in the students’ enrollment agreement.  Denying the school’s motion to compel arbitration, the district court concluded, and the Tenth Circuit affirmed, that the prospect of having to pay arbitrators’ fees rendered the students unable to effectively vindicate their statutory rights and therefore invalidated the arbitration clause.  The fact that the students could have opted out of the arbitration clause at the time of their enrollment did not preclude them from invoking the effective vindication exception to the FAA.