The 2nd Circuit recently bowed to the US Supreme Court, and enforced an arbitration agreement that contained a class-action waiver. Sutherland v. Ernst & Young (2nd Cir 08/09/2013), a case in which Sutherland wanted to litigate a class action claim for FLSA overtime wages. [08/13/2013 Update: Same result in Raniere v. Citigroup (2nd Cir 08/12/2013), in which the plaintiff wished to litigate a FLSA "collective" action.] A previous 2nd Circuit case invalidated a class-action waiver provision in an arbitration agreement because (1) the plaintiffs had shown that “they would incur prohibitive costs if compelled to arbitrate under the class action waiver,” and (2) enforcing the arbitration agreement would “deprive them of substantive rights under the federal antitrust statutes.”
But that's no longer good law because of American Express Co v. Italian Colors Restaurant (US Supreme Court 06/20/2013).
Although Sutherland argued that it would be prohibitively expensive to proceed individually in arbitration, that's what she now must do.