This split decision holds that under Morgan v. Sundance, Inc. (2022) 142 S.Ct. 1708, an employer waived the right to compel arbitration against class member employees who signed a 2002 arbitration agreement even though they became parties to the lawsuit only late in the case when a class was certified. Though the named plaintiff had not signed the arbitration agreement, and before class certification, the employer could not have compelled arbitration against the class members, the employer waived the right to compel arbitration because it knew about the arbitration agreement and took acts inconsistent with its right to compel arbitration under it. The fact that it could not have compelled class members to arbitrate before class certification did not show it lacked knowledge of its right to compel arbitration under the 2002 agreement since under Morgan, the focus of the waiver inquiry is only on the knowledge and acts of the party seeking arbitration. The employer acted inconsistently with its right to arbitrate by pursuing a substantive ruling and taking extensive discovery on the merits of the plaintiff’s claims over a six year period before class certification–even though it could not have compelled class members to arbitrate during that period. And during that period, the employer raised a later arbitration agreement many times without mentioning the 2002 agreement.