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Document Type

Article

Abstract

This article first argues that to determine the enforceability of a class action waiver, courts should take a "totality of the circumstances" approach rather than adopting a bright-line rule. A set of defined factors that also allows courts to consider real-world issues facing litigants will provide a substantial framework for courts to interpret this area of the law and will lead to more consistent and well-reasoned outcomes in the future. These factors include: the probable size of each class member's individual recovery, the potential for retaliation against class members, the awareness of potential class members that their rights have been violated, and other factors such as cost and convenience. Second, this article argues that the FAA should be amended to include a provision that directly addresses the issues that arise surrounding class action arbitration and class action waivers.