Individual Arbitration of FLSA Claims and The "Effective Vindication Doctrine"

What does an antitrust case have to do with wage and hour litigation?  Usually, not much, but a case argued before the Supreme Court two weeks ago is an exception.

American Express Co. v. Italian Colors Restaurant is an antitrust case in which American Express seeks to enforce a restaurant’s agreement to arbitrate all disputes on an individual basis, with no “class arbitration.”  

The restaurant claims that the arbitration agreement is unenforceable because individual arbitration would not permit the “effective vindication” of its federal antitrust claim.  According to the restaurant, it suffered only a few thousand dollars of damages but proving an antitrust violation would require expert economic analysis costing at least $300,000.  Thus, the restaurant argues, if it can’t pursue its claim as part of a class action or class arbitration, it won’t be able to pursue it at all.

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