In Dale v. Comcast Corp., ___ F.3d ___ (11th Cir. Sept. 4, 2007), the Eleventh Circuit reversed a district court order compelling abitration, saying, in relevant part:
Corporations should not be permitted to use class action waivers as a means to exculpate themselves from liability for small-value claims.
We thus conclude that the enforceability of a particular class action waiver in an arbitration agreement must be determined on a case-by-case basis, considering the totality of the facts and circumstances. Relevant circumstances may include, but are not limited to, the fairness of the provisions, the cost to an individual plaintiff of vindicating the claim when compared to the plaintiff’s potential recovery, the ability to recover attorneys’ fees and other costs and thus obtain legal representation to prosecute the underlying claim, the practical affect [sic] the waiver will have on a company’s ability to engage in unchecked market behavior, and related public policy concerns.
Slip op. at 17.