One of the best ways for companies facing media and privacy risk to protect themselves from expensive class action litigation is by including an arbitration provision in the applicable terms and conditions. While it’s not always clear at the outset of litigation whether the plaintiff agreed to the terms, companies often have to invoke arbitration quickly out of fear that they will be found to have waived arbitration. But in its coming term, the U.S. Supreme Court is now poised to address the critical point of whether prejudice to the plaintiff is a necessary element for a finding of waiver.

The Court agreed to decide whether prejudice is a required element in determining whether the right to arbitrate has been waived when it granted a Petition for Writ of Certiorari in Robyn Morgan v. Sundance, Inc. (No. 21-328). The case reached the Supreme Court after the Eighth Circuit found that Sundance, Inc., a company that owns over 150 Taco Bell franchises nationwide, did not waive its right to arbitrate the plaintiff’s claims, despite waiting almost eight months after the filing of her Complaint to move to compel arbitration.

There is, at a present, a circuit split on the question of whether prejudice plays a role in the waiver analysis. Nine out of the twelve federal circuit courts—the First, Second, Third, Fourth, Fifth, Sixth, Eighth, Ninth, and Eleventh Circuits—have explicitly found that prejudice is a required element to establish a waiver of the right to arbitrate. But the remaining three circuit courts—the Seventh, Tenth, and D.C. Circuits—have held that prejudice is not a required element.

In this case, the plaintiff, on behalf of herself and a proposed putative class, filed suit against Sundance on September 25, 2018 in the U.S. Southern District of Iowa, alleging that it had failed to pay employees for overtime hours worked in violation of the Fair Labor Standards Act. Because an action containing nearly identical allegations had been pending in the Eastern District of Michigan for nearly two years, Sundance first filed a motion to dismiss or stay the claims under Fed. R. Civ. P. 12(b)(3), which the District Court ultimately denied.

Thereafter, Sundance, plaintiff, and the plaintiffs in the Eastern District of Michigan action voluntarily attended mediation in an attempt to achieve a global resolution of the claims asserted against Sundance. Plaintiff’s claims were not resolved at the mediation, and three weeks later (nearly eight months after the case had been filed), Sundance moved to compel arbitration.

The motion to compel arbitration was filed before the parties attended an initial scheduling conference with the District Court and before the parties had engaged in any discovery. Nonetheless, the District Court denied the motion, finding that Sundance had waived its right to arbitration because it acted inconsistently with its right by invoking the “litigation machinery,” which prejudiced plaintiff.

The U.S. Court of Appeals for the Eighth Circuit reversed on appeal, finding that—in light of the totality of the circumstances—plaintiff had not been prejudiced by Sundance’s eight-month delay because, during that time, the parties were briefing the quasi-jurisdictional issue raised in the motion to dismiss or stay and then waiting on the District Court’s ruling on same, rather than litigating the merits of the claim.

Plaintiff sought review by the Supreme Court, asking it to answer the following question: “Does the arbitration specific requirement that the proponent of a contractual waiver defense prove prejudice violate this Court’s instruction [in , 563 U.S. 333, 339 (2011)] that lower courts must ‘place arbitration agreements on an equal footing with other contracts?’”

In response, Sundance argued that despite the apparent split, the Seventh, Tenth, and D.C. Circuits nonetheless consider prejudice in determining if the right to arbitrate has been waived. Per Sundance, “[a]t bottom, all of the Circuits are looking at the totality of the circumstances, as they should, in assessing waiver, and all are considering the existence of prejudice, whether as a mandatory or non-mandatory factor, as part of the assessment, based upon highly overlapping facts.”

Only time will tell whether the Supreme Court agrees, but we will continue to track and report on this case.