Attempts to enforce a contractual right to arbitrate are often stymied by the contention that arbitration had been waived because a party engaged in protracted litigation prior to asserting that right.
Recently, however, a federal district court in Kentucky allowed a defendant to amend its answer to include the affirmative defense of arbitration even though the parties had been actively litigating the matter for almost three years, in Stratton v. Portfolio Recovery Associates, USDC, E.D. Ky., Central Division, Nov. 2, 2015. The court’s opinion provides both guidance and a warning to parties who wish to preserve their right to arbitrate.
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