The court may ultimately accept or reject this reading of the contract, but a court should not "conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action." Eisen v. Carlisle & Jacquelin. 41 7 U.S. 1 56, 177-78 (1974). Thus, whether the class members can win on the merits of the issue common to the class is not a factor in determining whether Daffin's claim is typical.
The Court concludes on the evidence presented that LPL has shown a likelihood of success on the merits of the issue whether the Representative Agreements are valid and enforceable. The Representative Agreements are signed by the parties The causes of action Defendants pursue against LPL are predicated on the existence of duties arising from the Representative Agreements Moreover, courts have consistently recognized the prima facie validity of forum selection clauses, and where the "choice of . . . forum was made in an arm's-length negotiation by experienced and sophisticated businessmen, and absent some compelling and countervailing reason it should be honored by the parties and enforced by the courts" The Bremen v. Zapata Off-Shore Co., 40 7 U.S. 1, 12 (1972); Scherk v. Alberto-Culver Co., 417 U S 506,519 n 14 (1974); Carnival Cruise Lines. Inc. v. Eulala Shute, 499 U S 585, 593-595 (1991). A party seeking to avoid a forum selection clause in an arbitration agreement bears "a heavy burden of proof."
Reading R.C. 3519.01(A) in the manner Giroux proposes is simply illogical. Applying the distributive-phrasing canon avoids this "contradiction in terms," Huidekoper's Lessee v. Douglass, 7 U.S. 1, 67, 2 L.Ed. 347 (1805).
"This is a contract; and although a state is a party, it ought to be construed according to those well established principles which regulate contracts generally." Huidekoper's Lessee v. Douglass, 3 Cranch 1, 70, 7 U.S. 1, 70, 2 L.Ed. 347, 369 (1805). Consistent with this position, the Supreme Court again enunciated in Ohio Life Insurance and Trust Company v. DeBolt, 16 Howard 416, 429, 57 U.S. 416, 429, 14 L.Ed. 997 (1853):