In recent years, many U.S. businesses have come to see class action waiver clauses in arbitration agreements as the silver bullet that will put the threat of class action liability to rest. These hopes are not unfounded, as such clauses, when upheld, can all but eliminate the potential for corporate liability in a broad cross-section of cases, from consumer services to employment.
However, predictions of the demise of the class action may be premature: 2010 has seen a series of decisions in multiple circuits suggesting that this shield against litigation may be beginning to crack, and the recent passage of the Dodd-Frank Financial Reform Act will likely accelerate these changes.
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