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 that existing right.  Here, defendant did not intentionally act inconsistently with the right to compel arbitration.  It pled arbitration as an affirmative defense and moved to compel promptly after the Supreme Court’s Epic Systems decision seemed to show that the plaintiff’s PAGA claims were arbitrable.  Defendant did not seek any ruling on the merits by a motion to dismiss or otherwise.  It also took only very limited discovery regarding plaintiff’s PAGA claims and moved to compel within a year after the action was commenced.