In In re American Express Merchants’ Litigation, — F.3d —-, 2011 WL 781698 (2d Cir. 2011) ,the Court of Appeals for the Second Circuit invalidated a class action waiver in a merchant credit card agreement on remand following the Supreme Court’s decision in Stolt-Nielsen. The Court of Appeals framed the issue as its considering “the enforcement of a mandatory arbitration clause in a commercial contract also containing a “class action waiver,” that is, a provision which forbids the parties to the contract from pursuing anything other than individual claims in the arbitral forum. We found the class action waiver unenforceable, “because enforcement of the clause would effectively preclude any action seeking to vindicate the statutory rights asserted by the plaintiffs .” The Court of Appeals stood by its earlier decision, explaining:
On May 3, 2010, the Supreme Court granted Amex’s writ for certiorari, vacating and remanding for reconsideration in light of its decision in Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 130 S.Ct. 1758 (2010). The parties submitted supplemental briefing discussing the impact, if any, of Stolt-Nielsen on our original decision, and we find no need for oral argument. Finding our original analysis unaffected by Stolt-Nielsen, we again reverse the district court’s decision and remand for further proceedings, as discussed below.As we did earlier, we find “Amex has brought no serious challenge to the plaintiffs’ demonstration that their claims cannot reasonably be pursued as individual actions, whether in federal court or in arbitration.” In re Am. Express, 554 F.3d at 319. We again conclude “that enforcement of the class action waiver in the Card Acceptance Agreement ‘flatly ensures that no small merchant may challenge American Express’s tying arrangements under the federal antitrust laws.’ “ Id. Eradicating the private enforcement component from our antitrust law scheme cannot be what Congress intended when it included strong private enforcement mechanisms and incentives in the antitrust statutes. See Reiter v.. Sonotone Corp., 442 U.S. 330, 344 (1979) (“[p]rivate suits provide a significant supplement to the limited resources available to the Department of Justice for enforcing the antitrust laws and deterring violations.”); see also Dando B. Cellini, “An Overview of Antitrust Class Actions,” 49 Antitrust L.J. 1501, 1506 (1980) (discussing private, class action antitrust lawsuits and observing that “it is obvious from the experience over the last fifteen years since the 1966 amendments to Rule 23 were adopted that linking an antitrust claim with a class action allegation can be devastatingly effective.”). ¶ Thus, as the class action waiver in this case precludes plaintiffs from enforcing their statutory rights, we find the arbitration provision unenforceable. The two caveats we articulated in our original opinion still apply. In re Am. Express, 554 F.3d at 320. Our decision in no way relies upon the status of plaintiffs as “small” merchants. We rely instead on the need for plaintiffs to have the op-portunity to vindicate their statutory rights. In this case, the record demonstrates that the size of any potential recovery by an individual plaintiff will be too small to justify the expense of bringing an individual action. Moreover, we do not conclude here that class action waivers in arbitration agreements are per se unenforceable. We also do not hold that they are per se unenforceable in the context of antitrust actions. Rather, we hold that each case which presents a question of the enforceability of a class action waiver in an arbitration agreement must be considered on its own merits, governed with a healthy regard for the fact that the FAA “is a congressional declaration of a liberal federal policy favoring arbitration agreements.” Moses H. Cone Mem’l Hosp., 460 U.S. at 24. ¶ Amex argues that Stolt-Nielsen expressly rejects the use of public policy as a basis for finding contractual language void. We disagree. While Stolt-Nielsen plainly rejects using public policy as a means for divining the parties’ intent, nothing in Stolt-Nielsen bars a court from using public policy to find contractual language void. We agree with plaintiffs that “[t]o infer from Stolt-Nielsen’s narrow ruling on contractual construction that the Supreme Court meant to imply that an arbitration is valid and enforceable where, as a demonstrated factual matter, it prevents the effective vindication of federal rights would be to presume that the Stolt-Nielsen court meant to overrule or drastically limit its prior precedent.” (Plaintiffs’ Supp. Brief, p. 7) Following the Stolt-Nielsen decision, our court reached a similar conclusion in considering a different iteration of the issue: whether class action waivers are unconscionable as a matter of state law. Fensterstock v. Educ. Fin. Partners, 611 F.3d 124, 140 (2d Cir.2010).