Duane Morris Class Action Review - 2023 - Report - Page 19
Corp. v. Lewis, et al., 138 S. Ct. 1612 (2018), the U.S. Supreme Court cleared the last
hurdle to widespread adoption of such agreements. In response, more companies of all
types and sizes updated their onboarding materials, terms of use, and other types of
agreements to require that any disputes be resolved in arbitration on an individual basis.
To date, companies have enjoyed a high rate of success enforcing those agreements
and using them to thwart class actions out of the gate.
Statistically, corporate defendants fared well in asserting the defense. Across various
areas of class action litigation, the defense won approximately 68% of motions to
compel arbitration (roughly 69 motions granted in 102 cases).
By almost any measure, the arbitration defense had a tumultuous year in 2022. In the
courts, chinks in the armor of the defense began to grow. While the U.S. Supreme Court
shut down state efforts to evade arbitration of wage and hour claims, as discussed
above, it limited application of the FAA to workers who participate in interstate
transportation. Perhaps more significantly, on the legislative front, Congress significantly
limited the availability of arbitration for cases alleging sexual harassment or sexual
assault when it passed the Ending Forced Arbitration of Sexual Assault and Sexual
Harassment Act. President Biden signed the Act into law on March 3, 2022.
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Duane Morris Class Action Review – 2023