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We ask ourselves this question after the 2nd Circuit issued an opinion on Feb. 1, 2012 in In re Am. Express Merchants’ Litigation, No. 06-1871-civ, — F.3d —-, 2012 WL 284518 (2d Cir. Feb. 1, 2012) (“Amex III”), which reaffirmed its previous ruling that a class action waiver in an arbitration agreement that would prevent plaintiffs from bringing an antitrust class action under the Sherman and Clayton Acts is unenforceable. The 2nd Circuit clarified that it did not hold that class action waivers in arbitration agreements are per se unenforceable in the context of antitrust actions. However, based on the 2nd Circuit’s ruling and other lower courts’ analyses regarding the enforceability of class action waivers in the context of Clayton Act actions, could that be the practical effect of this decision if allowed to stand?    

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