Duane Morris Class Action Review - 2023 - Report - Page 20
The Act amends the FAA and provides a plaintiff the discretion to enforce pre-dispute
arbitration provisions and class and collective action waivers in cases where he or she
alleges “conduct constituting a sexual harassment dispute or a sexual assault dispute”
or is “the named representative of a class or in a collective action alleging such
conduct.” In other words, whereas the Act does not render such agreements invalid, it
allows the party bringing sexual assault or sexual harassment claims to elect to enforce
them or avoid them. The Act does not impact agreements entered into after a dispute
arises.
The plaintiffs’ bar often alleges other claims along with claims for sexual assault or
sexual harassment. Whereas the Act refers to a “case,” it remains to be seen whether
courts will attempt to limit a plaintiff’s option to avoid pre-dispute arbitration to sexual
assault or sexual harassment claims or will extend such option to all claims at issue in a
case. The Act provides that “no pre-dispute arbitration agreement or pre-dispute jointaction waiver shall be valid or enforceable with respect to a case which is filed under
Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual
harassment dispute.” To date, courts have not issued significant decisions interpreting
such language.
Given the impact of the arbitration defense, in 2023, companies may face additional
hurdles, on the judicial or the legislative front, as the plaintiffs’ bar continues to look for
workarounds. In particular, we expect to see litigation over whether the Act’s use of the
word “case” renders the statute applicable to all claims in the case, including claims
other than sexual harassment and sexual assault and whether the statute, therefore, will
allow for a broader shield to the arbitration defense.
Trend # 4 – The Likelihood Of Class Certification In 2022 Was As
Strong As Ever
In 2022, the plaintiffs’ class action bar succeeded in certifying class actions at a high
rate. Across all major types of class actions, courts issued rulings on 360 motions to
grant or to deny class certification in 2022. Of these, plaintiffs succeeded in obtaining or
maintaining certification in 268 rulings, an overall success rate of nearly 75%.
A.
Certification Numbers Remained High
The number of motions that courts considered varied significantly by subject matter
area, and the number of rulings they issued varied accordingly. The following
summarizes the results in each of 10 key areas:
Securities Fraud – 96% granted / 4% denied (23 of 24 granted / 1 of 24 denied)
Data Breach – 50% granted / 50% denied (3 of 6 granted / 3 of 6 denied)
Employment Discrimination – 53% granted / 47% denied (8 of 15 granted / 7 of 15
denied)
ERISA – 78% granted / 22% denied (18 of 23 granted / 5 of 23 denied)
RICO – 45% granted / 55% denied (5 of 11 granted / 6 of 11 denied)
TCPA – 67% granted / 33% denied (10 of 15 granted / 5 of 15 denied)
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© Duane Morris LLP 2023
Duane Morris Class Action Review – 2023