On November 15, 2021, in Morgan v. Sundance, Inc., the U.S. Supreme Court granted certiorari to decide whether the the proponent of a contractual waiver defense in arbitration must prove prejudice, and thereby violate the Supreme Court’s directive that lower courts must place arbitration agreements on an equal footing with other contracts. See, AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011).
In this case, the 8th Circuit had reversed the district court’s denial of the defendant employer’s motion to compel arbitration of Morgan’s FLSA claims. The employer had waited eight months after Morgan filed her claims before filing its motion to compel arbitration under a written arbitration agreement. During that time, the employer answered without asserting a right to arbitration, participated in a settlement conference, and filed a motion to dismiss, which the district court denied after taking it under advisement for four months. The 8th Circuit held the employer did not waive its right to arbitrate because its motion was not on the merits and Morgan was not prejudiced by the delay.
The Supreme Court granted certiorari and oral argument will be scheduled at a later date.