Waiver

Post-Morgan v. Sundance, prejudice to the plaintiff is no longer a factor to be considered in determining whether a defendant waived arbitration by litigating a dispute in court.  The burden of proving waiver is no longer heavy either.  The plaintiff need only show (1) the defendant's knowledge of an existing right to compel arbitration and (2) intentional acts inconsistent with… Read More

Assuming federal law governs the issue of waiver of the right to compel arbitration in a case to which the FAA applies, this decision holds that no showing of prejudice to the party opposing arbitration is required to support a finding that the party seeking to compel arbitration has waived the right to do so by its conduct in the… Read More

Under St. Agnes Medical Center v. Pacificare of California (2003) 31 Cal.4th 1187, a court cannot hold that the defendant waived the contractual right to arbitrate solely by delayed assertion of that right, absence a showing of prejudice by the opposing party.  Here, defendant waited 13 months after plaintiff filed suit to move to compel arbitration and took plaintiff's deposition… Read More

Defendant waived her right to compel arbitration by waiting for 2 years into the litigation before moving to compel arbitration.  Though prejudice to the opposing party is an important factor to consider in deciding whether arbitration has been waived, waiver can be found even without a showing of prejudice.  Anyway, long delay in bringing a motion to compel arbitration may… Read More