of the contract, or that part of the contract was effectively ratified by the parties’ performance, and thus should be enforced to that extent. But that question is not properly before the Court at this time. For now, the question is whether the claims should proceed to arbitration, and so to the extent that there was no binding contract including an arbitration clause, the question cannot be addressed by this Court. In other words, while there may be an equitable reason why the district court could enforce discrete provisions of the contract based on the parties’ course of conduct, that is not the same as finding that there was a contract in place during the relevant time period. Cf. Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 448-49, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006) (<HOLDING>). The survival language is similarly illusory.
holding arbitration clause in reinsurance agreement unenforceable under kansas statute holding that an arbitration clause was unenforceable because it prohibited an award of punitive damages which was available to the plaintiff under title vii holding that nothing necessarily prevents a court from finding an arbitration clause unenforceable in a contract that it later finds is enforceable recognizing that incorporated document containing arbitration clause is not necessarily required to be attached to the contract holding that when an arbitration clause has provisions that defeat the remedial purpose of the statute  the arbitration clause is not enforceable and that the language insulating an employer from damages and equitable relief renders the clause unenforceable