In Richards v. Ernst & Young, LLP, the Court of Appeals for the Ninth Circuit held in an employment case that the Defendant did not waive its right to compel arbitration by litigating the case during the years before the Supreme Court decided Concepcion. The Plaintiff could not establish any prejudice from the delay in moving to compel — one of her claims had been dismissed without prejudice, the other for lack of standing. Neither ruling was on the merits and so neither qualified as prejudice. The discovery taken before the motion to compel was not prejudicial because the defendant could have obtained the discovery in arbitration anyway.