Class and collective action empowers those that share the same experiences and injuries to stand together and assert their rights as a group, and they are critical to achieving widespread, systemic change. Class action waivers in mandatory arbitration agreements can erase all of these benefits, requiring employees to pursue their claims through individual arbitration. 

But a series of Supreme Court decisions since the early 1980’s has largely sanctioned and accelerated the propagation of forced arbitration, including agreements that prohibit class litigation.

The amendments to the to the federal class action rule were set to take effect December 1, 2018 subject to Congressional action – rejection, modification, or deferment. That deadline passed without the legislature’s response. As a result, these proposed are now in effect, marking the first substantive update to Rule 23 in fifteen years.

The legislation—which amends Section 1122 of the California Evidence Code and adds Section 1129—adopts a disclosure protocol in lieu of limiting the mediation privilege.