John Fellas
In Morgan v. Sundance, 142 S.Ct. 1708 (2022), the Supreme Court addressed a common issue that arises in arbitration—whether by pursuing litigation instead of invoking an arbitration agreement to which it is a party, that party might waive its right to arbitrate. In Morgan, the court resolved a circuit split on the proper test for waiver in the arbitration context. Some circuit courts had held that there was a higher standard to establish the waiver of a contractual right to arbitrate than that applicable to other contractual rights.
When it comes to all other contractual rights, the law focuses solely on the party alleged to have waived its right, asking whether it had intentionally relinquished that right. In the arbitration context, by contrast, some circuit courts also focused on the other party, asking whether it had been prejudiced by the actions of the waiving party.
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