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Monday, November 08, 2010

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Account Deleted

best of luck tomorrow. A lot of people are watching this case, and it will be interesting. I'm sure you have been mooted in preparation for tomorrow, and just in case, here are a few comments/questions to consider:

1) Aren't your arguments foreclosed by Stolt-Nielsen? If class action bans are unenforceable, won't businesses begin drafting "silent" agreements to fall under Stolt-Nielsen?

2) who decides the enforceability of class action bans?

3) is your argument anachronistic, with modern class actions not even existing at a time when the FAA was enacted? Bilateral arbitration was the norm in 1925. Your argument suggests that the very type of arbitration agreement permitted by the FAA (bilateral arbitration) is not lawful.

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