I’ve written recently that wage / hour class and collective actions may soon be a thing of the past. I’ve also written recently that they may yet survive. It all stems from Justice Scalia’s recent ruling in AT&T Mobility v. Concepcione, in which he ruled that the Federal Arbitration Act preempted a California rule that would have invalidated a class action waiver in a consumer contract.

Well, the Second Circuit is going to have a chance to address this question in the wage / hour contest very soon.

In D’antuono v. Service Road Corp, et al, Judge Kravits of the District of Connecticut granted a motion to dismiss and compel arbitration based on a similar arbitration agreement which contained a no-class actions clause. The plaintiffs have now sought and received permission to file an interlocutory appeal with the Second Circuit. Of course, the plaintiffs hope to win a ruling that any such class action waiver contained in an arbitration clause is unconscionable and renders the arbitration agreement invalid. This will likely be the first Circuit court to take up this issue since Concepcione. Stay tuned!