ABSTRACT
Wage theft is estimated to cost American workers more than $15 billion per year, but upwards of 60 million American workers cannot go to court to sue their employer if their rights are violated. This is because many American workers are subject to mandatory arbitration which forecloses their access to the court system—or an aggregate proceeding in arbitration. This problem has been long studied, but many scholars and lawyers concerned with mandatory arbitration doctrine have lamented the continued lack of remedial options available to those seeking redress from their employer. This Comment tracks an emerging innovation in the otherwise stagnant area of mandatory arbitration jurisprudence: the development of a new breed of aggregate litigation— “Mass Arbitration”— in which large inventories of nearly identical claims are brought simultaneously in an arbitral forum. The result is an action that is individual in name, yet aggregate in practice and effect. This Comment traces the emergence of the Mass Arbitration strategy, describes the elements of the strategy that enable its success, and assesses its potential as a tool to remedy other types of harm outside of the gig economy. Mass Arbitration has created a precarious and imperfect, yet effective, private enforcement regime in which plaintiffs can pursue claims that were previously thought nonviable. Whether this new strategy will survive already-mounting counter efforts remains to be seen. Nonetheless, this Comment explores the significant contribution Mass Arbitration has already made as a private enforcement mechanism in an area in which logistical and financial barriers have made it all but impossible to bring meritorious claims.
