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The Uncertain State Of Class Action Waivers

Law360 (March 29, 2011, 12:32 PM EDT) -- Many consumer-facing companies use arbitration provisions in their standard contracts to avoid the costs and burdens of the judicial process. But some go further, requiring customers to not only arbitrate, but to forego any class action remedy.

The Second Circuit’s decision in In re American Express Merchants’ Litigation casts doubt on this strategy — holding such provisions unenforceable in a wide swath of cases — and thereby reinforcing a circuit split that may ultimately need to be resolved by the Supreme Court.

The Supreme Court most...
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