Private Attorneys General Act Review – 2023 - Report - Page 11
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 employment-related claims with its 2014 decision in Iskanian, et al. v. CLS
Transportation Los Angeles, 59 Cal.4th 348 (Cal. 2014), which seemingly immunized
the PAGA from arbitration programs. In Iskanian, the California Supreme Court held that
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© Duane Morris LLP 2023
PAGA Litigation Review – 2023
