As I noted above, I think the decision not to move for summary judgment was strategic, and hence, counsel for the LTW class hasn't pushed the idea that the agreement itself is clear on its face. I agree with that strategy, but I also agree that Section 4.4 is clear.
I agree with what you are saying..but it's funny, because of the state of affairs in our courts, we have to agree to something we don't really agree with, just to stay in the game!