Duane Morris Class Action Review - 2023 - Report - Page 37
The following chart illustrates this trend.
The increase is a likely reaction to the growth of workplace arbitration, fueled by the
availability of fee-shifting.
B.
The PAGA As A Work-Around To Arbitration
Although the proliferation of mandatory arbitration programs started as early as 1991
when the U.S. Supreme Court issued Gilmer, et al. v. Interstate/Johnson Lane Corp.,
500 U.S. 20 (1991), the movement did not gain steam until 2011, when the U.S.
Supreme Court issued its ruling in AT&T Mobility LLC v. Concepcion, et al., 563 U.S.
333 (2011), and held that the FAA preempts state rules that stand “as an obstacle to the
accomplishment of the FAA’s objectives,” and it did not peak until 2018 with the U.S.
Supreme Court’s decision in Epic Systems Corp. v. Lewis, et al., 138 S.Ct. 1612 (2018),
wherein the last hurdle to enforcement of class and collective action waivers was
eliminated.
As the adoption of arbitration programs gained popularity as a mechanism to contract
around class and collective actions, the plaintiffs’ class action bar identified workarounds. The California Supreme Court’s cemented the PAGA as the frontrunner for
generated labor-related claims with its 2014 decision in Iskanian, et al. v. CLS
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Duane Morris Class Action Review – 2023