Morgan v. Sundance, Inc.

(Slip Opinion) OCTOBER TERM, 2021 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

MORGAN v. SUNDANCE, INC.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE EIGHTH CIRCUIT

No. 21–328. Argued March 21, 2022—Decided May 23, 2022

Petitioner Robyn Morgan worked as an hourly employee at a Taco Bell

franchise owned by respondent Sundance. When applying for the job,

Morgan signed an agreement to arbitrate any employment dispute.

Despite that agreement, Morgan filed a nationwide collective action

asserting that Sundance had violated federal law regarding overtime

payment. Sundance initially defended against the lawsuit as if no ar-

bitration agreement existed, filing a motion to dismiss (which the Dis-

trict Court denied) and engaging in mediation (which was unsuccess-

ful). Then—nearly eight months after Morgan filed the lawsuit—

Sundance moved to stay the litigation and compel arbitration under

the Federal Arbitration Act (FAA). Morgan opposed, arguing that

Sundance had waived its right to arbitrate by litigating for so long.

The courts below applied Eighth Circuit precedent, under which a

party waives its right to arbitration if it knew of the right; “acted in-

consistently with that right”; and “prejudiced the other party by its

inconsistent actions.” Erdman Co. v. Phoenix Land & Acquisition,

LLC, 650 F. 3d 1115, 1117. The prejudice requirement is not a feature

of federal waiver law generally. The Eighth Circuit adopted that re-

quirement because of the “federal policy favoring arbitration.” Id., at

1120. Other courts have rejected such a requirement. This Court

granted certiorari to resolve the split over whether federal courts may

adopt an arbitration-specific waiver rule demanding a showing of prej-

udice.

Held: The Eighth Circuit erred in conditioning a waiver of the right to

arbitrate on a showing of prejudice. Federal courts have generally re-

solved cases like this one as a matter of federal law, using the termi-

nology of waiver. The parties dispute whether that framework is cor-

rect. Assuming without deciding that it is, federal courts may not

2 MORGAN v. SUNDANCE, INC.

Syllabus

create arbitration-specific variants of federal procedural rules, like

those concerning waiver, based on the FAA’s “policy favoring arbitra-

tion.” Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460

U. S. 1, 24. That policy “is merely an acknowledgment of the FAA’s

commitment to overrule the judiciary’s longstanding refusal to enforce

agreements to arbitrate and to place such agreements upon the same

footing as other contracts.” Granite Rock Co. v. Teamsters, 561 U. S.

287, 302 (internal quotation marks omitted). Accordingly, a court

must hold a party to its arbitration contract just as the court would to

any other kind. But a court may not devise novel rules to favor arbi-

tration over litigation. See Dean Witter Reynolds Inc. v. Byrd, 470

U. S. 213, 218–221. The federal policy is about treating arbitration

contracts like all others, not about fostering arbitration.

The text of the FAA makes clear that courts are not to create arbi-

tration-specific procedural rules like the one here. Section 6 of the FAA

provides that any application under the statute—including an appli-

cation to stay litigation or compel arbitration—“shall be made and

heard in the manner provided by law for the making and hearing of

motions” (unless the statute says otherwise). A directive to treat arbi-

tration applications “in the manner provided by law” for all other mo-

tions is simply a command to apply the usual federal procedural rules,

including any rules relating to a motion’s timeliness. Because the

usual federal rule of waiver does not include a prejudice requirement,

Section 6 instructs that prejudice is not a condition of finding that a

party waived its right to stay litigation or compel arbitration under the

FAA.

Stripped of its prejudice requirement, the Eighth Circuit’s current

waiver inquiry would focus on Sundance’s conduct. Did Sundance

knowingly relinquish the right to arbitrate by acting inconsistently

with that right? On remand, the Court of Appeals may resolve that

question, or determine that a different procedural framework (such as

forfeiture) is appropriate. The Court’s sole holding today is that it may

not make up a new procedural rule based on the FAA’s “policy favoring

arbitration.” Pp. 4–7.

992 F. 3d 711, vacated and remanded.

KAGAN, J., delivered the opinion for a unanimous Court.

Cite as: 596 U. S. ____ (2022) 1

Opinion of the Court

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SUPREME COURT OF THE UNITED STATES

_________________

No. 21–328

_________________

ROBYN MORGAN, PETITIONER v. SUNDANCE, INC.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE EIGHTH CIRCUIT

[May 23, 2022]

JUSTICE KAGAN delivered the opinion of the Court.

When a party who has agreed to arbitrate a dispute in-

stead brings a lawsuit, the Federal Arbitration Act (FAA)

entitles the defendant to file an application to stay the liti-

gation. See 9 U. S. C. §3. But defendants do not always

seek that relief right away. Sometimes, they engage in

months, or even years, of litigation—filing motions to dis-

miss, answering complaints, and discussing settlement—

before deciding they would fare better in arbitration. When

that happens, the court faces a question: Has the defend-

ant’s request to switch to arbitration come too late?

Most Courts of Appeals have answered that question by

applying a rule of waiver specific to the arbitration context.

Usually, a federal court deciding whether a litigant has

waived a right does not ask if its actions caused harm. But

when the right concerns arbitration, courts have held, a

finding of harm is essential: A party can waive its arbitra-

tion right by litigating only when its conduct has prejudiced

the other side. That special rule, the courts say, derives

from the FAA’s “policy favoring arbitration.”

We granted certiorari to decide whether the FAA author-

2 MORGAN v. SUNDANCE, INC.

Opinion of the Court

izes federal courts to create such an arbitration-specific pro-

cedural rule. We hold it does not.

I

Petitioner Robyn Morgan worked as an hourly employee

at a Taco Bell franchise owned by respondent Sundance.

When applying for the job, she signed an agreement to “use

confidential binding arbitration, instead of going to court,”

to resolve any employment dispute. App. 77.

Despite that agreement, Morgan brought a nationwide

collective action against Sundance in federal court for vio-

lations of the Fair Labor Standards Act. Under that stat-

ute, employers must pay overtime to covered employees

who work more than 40 hours in a week. See 29 U. S. C.

§207(a). Morgan alleged that Sundance routinely flouted

the Act—most notably, by recording hours worked in one

week as instead worked in another to prevent any week’s

total from exceeding 40. See App. 12.

Sundance initially defended itself against Morgan’s suit

as if no arbitration agreement existed. Sundance first

moved to dismiss the suit as duplicative of a collective ac-

tion previously brought by other Taco Bell employees. In

that motion, Sundance suggested that Morgan either “join”

the earlier suit or “refile her claim on an individual basis.”

Id., at 39. But Morgan declined the invitation to litigate

differently, and the District Court denied Sundance’s mo-

tion. Sundance then answered Morgan’s complaint, assert-

ing 14 affirmative defenses—but none mentioning the arbi-

tration agreement. Soon afterward, Sundance met in a

joint mediation with the named plaintiffs in both collective

actions. The other suit settled, but Morgan’s did not. She

and Sundance began to talk about scheduling the rest of the

litigation.

And then—nearly eight months after the suit’s filing—

Sundance changed course. It moved to stay the litigation

and compel arbitration under Sections 3 and 4 of the FAA.

Cite as: 596 U. S. ____ (2022) 3

Opinion of the Court

See §3 (providing for a stay of judicial proceedings on “is-

sue[s] referable to arbitration”); §4 (providing for an order

“directing the parties to proceed to arbitration”). Morgan

opposed the motion, arguing that Sundance had waived its

right to arbitrate by litigating for so long. Sundance re-

sponded that it had asserted its right as soon as this Court’s

decision in Lamps Plus, Inc. v. Varela, 587 U. S. ___ (2019),

clarified that the arbitration would proceed on a bilateral

(not collective) basis.

The courts below applied Eighth Circuit precedent to de-

cide the waiver issue. See 992 F. 3d 711, 713–715 (2021);

No. 4:18–cv–316 (ND Iowa, June 28, 2019), App. to Pet. for

Cert. 21–33. Under that Circuit’s test, a party waives its

contractual right to arbitration if it knew of the right; “acted

inconsistently with that right”; and—critical here—“preju-

diced the other party by its inconsistent actions.” Erdman

Co. v. Phoenix Land & Acquisition, LLC, 650 F. 3d 1115,

1117 (CA8 2011). The prejudice requirement, as explained

later, is not a feature of federal waiver law generally. See

infra, at 5. The Eighth Circuit adopted the requirement in

the arbitration context because of the “federal policy favor-

ing arbitration.” Erdman, 650 F. 3d, at 1120; see id., at

1117.

Although the District Court found the prejudice require-

ment satisfied, the Court of Appeals disagreed and sent

Morgan’s case to arbitration. The panel majority reasoned

that the parties had not yet begun formal discovery or con-

tested any matters “going to the merits.” 992 F. 3d, at 715.

Judge Colloton dissented. He argued that Sundance had

“led Morgan to waste time and money” opposing the motion

to dismiss and “engaging in a fruitless mediation.” Id., at

717. More fundamentally, he raised doubts about the

Eighth Circuit’s prejudice requirement. Outside the arbi-

tration context, Judge Colloton observed, prejudice is not

needed for waiver. See id., at 716. In line with that general

principle, he continued, “some circuits allow a finding of

4 MORGAN v. SUNDANCE, INC.

Opinion of the Court

waiver of arbitration without a showing of prejudice.” Id.,

at 716–717.

We granted certiorari, 595 U. S. ___ (2021), to resolve

that circuit split. Nine circuits, including the Eighth, have

invoked “the strong federal policy favoring arbitration” in

support of an arbitration-specific waiver rule demanding a

showing of prejudice.1 Two circuits have rejected that rule.2

We do too.

II

We decide today a single issue, responsive to the predom-

inant analysis in the Courts of Appeals, rather than to all

the arguments the parties have raised. In their briefing,

the parties have disagreed about the role state law might

play in resolving when a party’s litigation conduct results

in the loss of a contractual right to arbitrate. The parties

have also quarreled about whether to understand that in-

quiry as involving rules of waiver, forfeiture, estoppel,

laches, or procedural timeliness. We do not address those

issues. The Courts of Appeals, including the Eighth Circuit,

have generally resolved cases like this one as a matter of

federal law, using the terminology of waiver. For today, we

assume without deciding they are right to do so. We con-

sider only the next step in their reasoning: that they may

create arbitration-specific variants of federal procedural

——————

1 Joca-Roca Real Estate, LLC v. Brennan, 772 F. 3d 945, 948 (CA1

2014); see O. J. Distributing, Inc. v. Hornell Brewing Co., 340 F. 3d 345,

355–356 (CA6 2003); PaineWebber Inc. v. Faragalli, 61 F. 3d 1063, 1068–

1069 (CA3 1995); S & H Contractors, Inc. v. A. J. Taft Coal Co., 906 F. 2d

1507, 1514 (CA11 1990); Miller Brewing Co. v. Fort Worth Distributing

Co., 781 F. 2d 494, 497 (CA5 1986); ATSA of Cal., Inc. v. Continental Ins.

Co., 702 F. 2d 172, 175 (CA9 1983); Carolina Throwing Co. v. S & E Nov-

elty Corp., 442 F. 2d 329, 331 (CA4 1971) (per curiam); Carcich v. Rederi

A/B Nordie, 389 F. 2d 692, 696 (CA2 1968).

2 See St. Mary’s Medical Center of Evansville, Inc., v. Disco Aluminum

Prods. Co., 969 F. 2d 585, 590 (CA7 1992); National Foundation for Can-

cer Research v. A. G. Edwards & Sons, Inc., 821 F. 2d 772, 774, 777

(CADC 1987).

Cite as: 596 U. S. ____ (2022) 5

Opinion of the Court

rules, like those concerning waiver, based on the FAA’s

“policy favoring arbitration.” Moses H. Cone Memorial Hos-

pital v. Mercury Constr. Corp., 460 U. S. 1, 24 (1983). They

cannot. For that reason, the Eighth Circuit was wrong to

condition a waiver of the right to arbitrate on a showing of

prejudice.

Outside the arbitration context, a federal court assessing

waiver does not generally ask about prejudice. Waiver, we

have said, “is the intentional relinquishment or abandon-

ment of a known right.” United States v. Olano, 507 U. S.

725, 733 (1993) (internal quotation marks omitted). To de-

cide whether a waiver has occurred, the court focuses on the

actions of the person who held the right; the court seldom

considers the effects of those actions on the opposing party.

That analysis applies to the waiver of a contractual right,

as of any other. As Judge Colloton noted in dissent below,

a contractual waiver “normally is effective” without proof of

“detrimental reliance.” 992 F. 3d, at 716; see Cabinetree of

Wisconsin, Inc. v. Kraftmaid Cabinetry, Inc., 50 F. 3d 388,

390 (CA7 1995) (Posner, C. J., for the Court). So in demand-

ing that kind of proof before finding the waiver of an arbi-

tration right, the Eighth Circuit applies a rule found no-

where else—consider it a bespoke rule of waiver for

arbitration.

The Eighth Circuit’s arbitration-specific rule derives

from a decades-old Second Circuit decision, which in turn

grounded the rule in the FAA’s policy. See Carcich v. Rederi

A/B Nordie, 389 F. 2d 692, 696 (CA2 1968); Erdman, 650

F. 3d, at 1120, n. 4 (“trac[ing] the origins of [the Eighth Cir-

cuit’s] prejudice requirement to Carcich”). “[T]here is,” the

Second Circuit declared, “an overriding federal policy favor-

ing arbitration.” Carcich, 389 F. 3d, at 696. For that rea-

son, the court held, waiver of the right to arbitrate “is not

to be lightly inferred”: “[M]ere delay” in seeking a stay of

litigation, “without some resultant prejudice” to the oppos-

ing party, “cannot carry the day.” Ibid. Over the years,

6 MORGAN v. SUNDANCE, INC.

Opinion of the Court

both that rule and its reasoning spread. Circuit after circuit

(with just a couple of holdouts) justified adopting a preju-

dice requirement based on the “liberal national policy favor-

ing arbitration.” Carolina Throwing Co. v. S & E Novelty

Corp., 442 F. 2d 329, 331 (CA4 1971) (per curiam); see, e.g.,

PaineWebber Inc. v. Faragalli, 61 F. 3d 1063, 1068–1069

(CA3 1995); Shinto Shipping Co. v. Fibrex & Shipping Co.,

Inc., 572 F. 2d 1328, 1330 (CA9 1978).

But the FAA’s “policy favoring arbitration” does not au-

thorize federal courts to invent special, arbitration-preferring

procedural rules. Moses H. Cone, 460 U. S., at 24. Our fre-

quent use of that phrase connotes something different.

“Th[e] policy,” we have explained, “is merely an acknowl-

edgment of the FAA’s commitment to overrule the judici-

ary’s longstanding refusal to enforce agreements to arbi-

trate and to place such agreements upon the same footing

as other contracts.” Granite Rock Co. v. Teamsters, 561

U. S. 287, 302 (2010) (internal quotation marks omitted).

Or in another formulation: The policy is to make “arbitra-

tion agreements as enforceable as other contracts, but not

more so.” Prima Paint Corp. v. Flood & Conklin Mfg. Co.,

388 U. S. 395, 404, n. 12 (1967). Accordingly, a court must

hold a party to its arbitration contract just as the court

would to any other kind. But a court may not devise novel

rules to favor arbitration over litigation. See Dean Witter

Reynolds Inc. v. Byrd, 470 U. S. 213, 218–221 (1985). If an

ordinary procedural rule—whether of waiver or forfeiture

or what-have-you—would counsel against enforcement of

an arbitration contract, then so be it. The federal policy is

about treating arbitration contracts like all others, not

about fostering arbitration. See ibid.; National Foundation

for Cancer Research v. A. G. Edwards & Sons, Inc., 821

F. 2d 772, 774 (CADC 1987) (“The Supreme Court has made

clear” that the FAA’s policy “is based upon the enforcement

of contract, rather than a preference for arbitration as an

alternative dispute resolution mechanism”).

Cite as: 596 U. S. ____ (2022) 7

Opinion of the Court

And indeed, the text of the FAA makes clear that courts

are not to create arbitration-specific procedural rules like

the one we address here. Section 6 of the FAA provides that

any application under the statute—including an applica-

tion to stay litigation or compel arbitration—“shall be made

and heard in the manner provided by law for the making

and hearing of motions” (unless the statute says otherwise).

A directive to a federal court to treat arbitration applica-

tions “in the manner provided by law” for all other motions

is simply a command to apply the usual federal procedural

rules, including any rules relating to a motion’s timeliness.

Or put conversely, it is a bar on using custom-made rules,

to tilt the playing field in favor of (or against) arbitration.

As explained above, the usual federal rule of waiver does

not include a prejudice requirement. So Section 6 instructs

that prejudice is not a condition of finding that a party, by

litigating too long, waived its right to stay litigation or com-

pel arbitration under the FAA.

Stripped of its prejudice requirement, the Eighth Cir-

cuit’s current waiver inquiry would focus on Sundance’s

conduct. Did Sundance, as the rest of the Eighth Circuit’s

test asks, knowingly relinquish the right to arbitrate by act-

ing inconsistently with that right? See supra, at 3. On re-

mand, the Court of Appeals may resolve that question, or

(as indicated above) determine that a different procedural

framework (such as forfeiture) is appropriate. See supra,

at 4. Our sole holding today is that it may not make up a

new procedural rule based on the FAA’s “policy favoring ar-

bitration.”

* * *

For the reasons stated, we vacate the judgment of the

Court of Appeals and remand the case for further proceed-

ings consistent with this opinion.

It is so ordered.