Amicus Curiae Brief — Robyn Morgan, Petitioner v. Sundance, Inc.

NO. 21-328

In the

Supreme Court of the United States

________________

ROBYN MORGAN, on Behalf of Herself and All

Similarly Situated Individuals,

Petitioner,

v.

SUNDANCE, INC.,

________________________

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the

Eighth Circuit

________________

MOTION FOR LEAVE TO FILE AND BRIEF OF

LAW PROFESSORS AS AMICI CURIAE IN

SUPPORT OF GRANTING THE PETITION

FOR A WRIT OF CERTIORARI

_________________

RICHARD H. FRANKEL

Counsel of Record

DREXEL UNIVERSITY

THOMAS R. KLINE SCHOOL OF LAW

3320 Market Street

Philadelphia, PA 19104

(215) 571-4807

rhf24@drexel.edu

Dated: September 29, 2021

________________________

Counsel for Amici Curiae

1

MOTION FOR LEAVE TO FILE BRIEF OF

AMICI CURIAE IN SUPPORT OF GRANTING

THE PETITION FOR A WRIT OF CERTIORARI

Pursuant to Supreme Court Rules 33.1 and 37.2(b),

proposed amici curiae submit this Motion for Leave to

File a Brief Amici Curiae on Behalf of Law Professors

in Support of Granting the Petition for a Writ of

Certiorari. In support of the motion, proposed amici

curiae state as follows:

1. Proposed amici curiae wish to file a Brief Amici

Curiae on Behalf of Law Professors in Support of

Granting the Petition for a Writ of Certiorari in the

above-captioned matter.

2. Pursuant to Rule 37.2(a), counsel for amici

curiae notified the counsel of record for all parties of

amici’s intent to file an amici curiae brief in support of

granting the petition. With that notice, counsel asked

the counsel of record for the parties if they would

consent to this filing. Counsel provided this notice on

September 16, 2021, fifteen days before the October 1,

2021 deadline for the brief, in accordance with Rule

37.2(a).

3. Rule 37.2(b) states that where a party has

withheld consent, counsel must file a motion for leave

to file the amici curiae brief. In that motion, counsel

must “indicate the party or parties who have withheld

consent” and also state the nature of the movant’s

interest.

4. On September 16, 2021, counsel of record for

Respondent Sundance, Inc. stated that Respondent

2

does not consent to the filing of this proposed amici

curiae brief.

5. The proposed amici curiae have an interest in

this case. They comprise law professors with expertise

in the areas of contract law and arbitration law. They

have an interest in ensuring the proper interpretation

of contract law and arbitration law principles in

federal and state courts. They submit this brief to

show how lower courts have failed to properly apply

the Federal Arbitration Act’s equal-treatment

principle, and that they have improperly created a

federal common law of arbitration waiver rather than

applying state contract law principles to the question

of when a party has waived its right to enforce an

arbitration contract. This Court should grant the

Petition to resolve the split among lower courts

regarding whether prejudice is an element of waiver,

and to instruct lower courts that determining whether

a party waived an arbitration agreement should rest

on the same principles for determining whether a

party waived any other contractual provision. Because

prejudice is not an element of waiver for contracts

generally, it should be not be an element of waiver for

arbitration clauses either.

6. Pursuant to Rule 37.2(b) this motion for leave

to file is being filed “as one document with the brief

sought to be filed . . . .”

For the foregoing reasons, proposed amici curiae

respectfully request that this Court grant this Motion

for Leave To File a Brief Amici Curiae in Support of

3

Granting the Petition for a Writ of Certiorari and

accept the proposed brief for filing.

Respectfully submitted,

RICHARD H. FRANKEL

Counsel of Record

DREXEL UNIVERSITY

THOMAS R. KLINE SCHOOL OF LAW

3320 Market Street

Philadelphia, PA 19104

(215) 571-4807

rhf24@drexel.edu

Dated: September 29, 2021

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................... iii

INTEREST OF AMICI CURIAE ................................ 1

SUMMARY OF ARGUMENT ..................................... 1

ARGUMENT ................................................................ 4

Certiorari is Warranted Because the Majority of

Federal Courts Have Improperly Invented a Federal

Common Law of Waiver Rather than Applying State

Contract Law ............................................................... 4

A. The Federal Policy Favoring Arbitration

Requires Courts to Treat Arbitration Clauses

Equally with Other Contracts by Incorporating

State Contract Law Principles ......................... 4

B. Those Courts Requiring Prejudice as an

Element of Waiver Have Disregarded State

Contract Law and Misapplied the Federal

Policy Favoring Arbitration.............................. 7

C. This Court Previously Has Corrected Lower

Courts that Have Improperly Created a Federal

Common Law for Evaluating Arbitration

Agreements Rather than Applying State

Contract Law .................................................. 11

CONCLUSION .......................................................... 13

APPENDIX A...................................................... App. 1

ii

TABLE OF AUTHORITIES

Page(s)

CASES

Arthur Andersen, LLP v. Carlisle,

556 U.S. 624 (2009) ................................... passim

AT&T Mobility LLC v. Concepcion,

563 U.S. 333 (2011) ............................................. 5

AtriCure, Inc. v. Meng,

---F.4th---, 2021 WL 3823418 (6th Cir.

2021) .............................................................. 3, 12

Buckeye Check Cashing, Inc. v. Cardegna,

546 U.S. 440 (2006) ............................................. 5

Cabinetree of Wis., Inc. v. Kraftmaid

Cabinetry, Inc.,

50 F.3d 388 (7th Cir. 1995) ............................. 5, 7

Cain v. Midland Funding, LLC,

156 A.3d 807 (Md. 2017) ..................................... 4

Crawford Prof’l Drugs, Inc. v. CVS

Caremark Corp.,

748 F.3d 249 (5th Cir. 2014) ......................... 3, 12

First Options of Chi., Inc. v. Kaplan,

514 U.S. 938 (1995) ................................... 3, 6, 10

Fisher v. A.G. Becker Paribas, Inc.,

791 F.2d 691 (9th Cir. 1986) ............................... 8

iii

Grigson v. Creative Artists Agency, L.L.C.,

210 F.3d 524 (5th Cir. 2000) ....................... 11, 12

Hall Street Assocs., L.L.C. v. Mattel, Inc.,

552 U.S. 576 (2008) ............................................. 5

Johnston Equip. Corp. of Iowa v. Indus.

Indem.,

489 N.W.2d 13 (Iowa 1992) ................................. 2

Kindred Nursing Centers Ltd. P’ship v.

Clark,

137 S. Ct. 1421 (2017) ..................................... 2, 5

Kinsey v. Bradley,

765 P.2d 1329 (Wash. Ct. App. 1989) ............... 19

Lamps Plus, Inc. v. Varela,

139 S. Ct. 1407 (2019) ......................................... 6

Lawson v. Life of the South Ins. Co.,

648 F.3d 1166 (11th Cir. 2011) ......................... 12

Miller Brewing Co. v. Fort Worth Distrib.

Co., Inc.,

781 F.2d 494 (5th Cir. 1986) ........................... 8, 9

Morgan v. Sundance, Inc.,

992 F.3d 711 (8th Cir. 2021) ............................... 2

Moses H. Cone Mem’l Hosp. v. Mercury

Constr. Corp.,

460 U.S. 1 (1983) ............................................... 10

iv

Mounteer Enters., Inc. v. Homeowners Ass'n

for the Colony at White Pine Canyon,

422 P.3d 809 (Utah 2018) ................................... 7

MSO, LLC v. DeSimone,

94 A.3d 1189 (Conn. 2014) .................................. 9

Prima Paint Corp. v. Flood & Conklin Mfg.

Co.,

388 U.S. 395 (1967) ........................................... 10

Rush v. Oppenheimer & Co.,

779 F.2d 885 (2d Cir. 1985)................................. 8

Scherk v. Alberto-Culver Co.,

417 U.S. 506 (1974) ........................................... 10

Shuster v. Prestige Senior Mgmt., L.L.C.,

376 P.3d 412 (Wash. Ct. App. 2016) ................. 13

Volt Info. Sciences, Inc. v. Bd. of Trs. of

Leland Stanford Jr. Univ.,

489 U.S. 468 (1989) ....................................... 5, 10

Other Authorities

Arbitration of Interstate Commercial

Disputes: Joint Hearing on S. 1005 and

H.R. 646 Before the S. Comm. on the

Judiciary and the H. Comm on the

Judiciary, 68th Cong. (1924) .............................. 6

H.R. Rep. No. 96, 68th Cong., 1st Sess., 1, 2

(1924) ................................................................. 10

Supreme Court Rule 37.6 ......................................... 1

1

INTEREST OF AMICI CURIAE 1

This case involves questions of substantial

importance to the fields of both arbitration law and

contract law. Amici are law professors with expertise

in both fields. They have an interest in ensuring the

proper interpretation of contract law and arbitration

law principles in federal and state courts. They file

this brief to give the Court the benefit of their many

years of practical experience and scholarly study.

Because the circuits are split on the question of

whether waiver of an arbitration clause requires a

showing of prejudice to the party opposing arbitration,

and because the majority view that prejudice is

required rests on a misapplication of the Federal

Arbitration Act (FAA), amici request that this Court

grant the Petition in this case.

A full list of amici curiae is attached as Appendix

A with this brief.

SUMMARY OF ARGUMENT

This Court should grant certiorari to provide

guidance in an important and recurring context: when

one party argues that another has waived the right to

1 Pursuant to Rule 37.6, amici affirm that no counsel for a

party authored this brief in whole or in part and that no person

other than amici, their members, or their counsel have made any

monetary contributions intended to fund the preparation or

submission of this brief. Pursuant to Rule 37.2(a) counsel notified

the parties of record of the intent to file an amici curiae brief on

September 16, 2021. On September 16, 2021, counsel for

Respondent stated that Respondent does not consent to the filing

of an amici curiae brief.

2

require arbitration. This is a question that courts

grapple with hundreds of times every year. 2 The

majority of lower courts have crafted a rule requiring

that the asserted waiver cause prejudice to the party

opposing arbitration. In devising such a rule, those

courts have ignored state contract law and misapplied

this Court’s repeated holdings that arbitration clauses

should be placed on equal footing with other contracts.

Granting certiorari will allow this Court to

provide necessary guidance on two important

principles. The first principle is that the federal policy

favoring arbitration is meant to ensure that

arbitration clauses are treated no differently than

other contracts; what is known as the “equal

treatment” principle. Kindred Nursing Centers Ltd.

P’ship v. Clark, 137 S. Ct. 1421, 1426 (2017). Those

lower courts that require showing of prejudice as an

element of waiver have violated this principle. Here,

the Eighth Circuit followed the majority approach,

requiring proof that the waiving party “prejudiced the

other party by [its] inconsistent acts.” Morgan v.

Sundance, Inc., 992 F.3d 711, 713-14 (8th Cir. 2021).

However, it is hornbook contract law that “[p]rejudice

is irrelevant to a claim of waiver.” Johnston Equip.

Corp. of Iowa v. Indus. Indem., 489 N.W.2d 13, 17

(Iowa 1992). By requiring prejudice, these courts have

not afforded “equal treatment” to arbitration

provisions vis-à-vis other contracts.

2 For example, a Westlaw search for “adv: waive /10 arbitrat! &

DA(aft 2019) & DA(bef 2021)” reveals 472 hits, which suggests

that courts dealt with an asserted waiver of the right to arbitrate

nearly 500 times in 2020 alone.

3

The second principle is a corollary of the equal

treatment principle. When interpreting an arbitration

provision or addressing defenses to arbitration, courts

must apply ordinary rules of state contract law, just

as they would for any other contract. Arthur Andersen,

LLP v. Carlisle, 556 U.S. 624, 632 (2009) (explaining

that the applicability of equitable estoppel to

arbitration agreements would depend on what

“relevant state contract law” says about equitable

estoppel); First Options of Chi., Inc. v. Kaplan, 514

U.S. 938, 944 (1995).

When it comes to waiver of arbitration clauses,

however, many lower courts are not applying state

contract law at all. Rather, they hold that the federal

policy favoring arbitration requires the imposition of a

prejudice requirement. Thus, they have invented their

own federal common law—law that is not grounded in

either the FAA or state contract principles.

This Court previously provided valuable guidance

to lower courts on the role of state contract law in

evaluating arbitration clauses. Lower federal courts

once created their own federal common law regarding

when third parties were bound to arbitrate. However,

this Court repudiated this approach, explaining that

such questions depend on “relevant state contract

law.” Arthur Andersen, 556 U.S. at 632. In response

lower courts correctly abandoned federal common law

and applied state contract law instead. See, e.g.,

AtriCure, Inc. v. Meng, ---F.4th---, 2021 WL 3823418

at *4-5 (6th Cir. 2021); Crawford Prof’l Drugs, Inc. v.

CVS Caremark Corp., 748 F.3d 249, 261-62 (5th Cir.

2014). With waiver, by contrast, the courts continue to

ignore state contract law. Just as with Arthur

4

Andersen, this Court’s intervention could correct this

problem and clarify that waiver of arbitration clauses

is governed by the same state contract law principles

that govern waiver of any other contractual provision.

ARGUMENT

Certiorari is Warranted Because the Majority of

Federal Courts Have Improperly Invented a

Federal Common Law of Waiver Rather than

Applying State Contract Law.

A. The Federal Policy Favoring Arbitration

Requires Courts to Treat Arbitration

Clauses Equally with Other Contracts by

Incorporating

State

Contract

Law

Principles.

This Court has established two basic principles

underlying the FAA: (1) that arbitration clauses must

be placed on equal footing with other contracts, and (2)

to do so, courts must apply state law contract

principles to arbitration agreements. Under this

framework, waiver should be straightforward. As one

court explained, “[b]ecause waiver is a ‘generally

applicable contract defense,’ we analyze whether the

arbitration clause was waived, and is therefore

unenforceable, under state—not federal—law.” Cain

v. Midland Funding, LLC, 156 A.3d 807, 814 (Md.

2017).

However, waiver has become anything but simple.

Lower courts have disregarded this Court’s

instructions, ignored rather than incorporated state

contract law, and distorted the federal policy favoring

arbitration to craft a prejudice requirement that exists

5

nowhere else in general contract law. This case

presents a valuable opportunity to clarify the proper

scope of the FAA and to reinforce the proper role of

state contract law when evaluating agreements to

arbitrate.

As Petitioner persuasively explains, a central

purpose of the FAA was to treat arbitration

agreements no differently than other contracts. Pet.

21-23. The Act was passed to prevent courts from

singling out arbitration clauses for unfavorable

treatment and to prevent courts from crafting special

rules that applied to arbitration agreements, but not

other contracts. See Volt Info. Sciences, Inc. v. Bd. of

Trs. of Leland Stanford Jr. Univ., 489 U.S. 468, 478

(1989). This Court has repeatedly held that the FAA

places arbitration agreements “on an equal footing as

other contracts,” AT&T Mobility LLC v. Concepcion,

563 U.S. 333, 339 (2011) (citing Buckeye Check

Cashing, Inc. v. Cardegna, 546 U.S. 440, 443 (2006)),

also known as the “equal-treatment principle.”

Kindred Nursing Centers, Ltd. P’ship v. Clark, 137 S.

Ct. 1421, 1426 (2017).

The federal policy favoring arbitration embodies

this equal-treatment principle. “Congress enacted the

FAA to replace judicial indisposition to arbitration

with a ‘national policy favoring it and placing

arbitration agreements on equal footing with all other

contracts.’” Hall Street Assocs., L.L.C. v. Mattel, Inc.,

552 U.S. 576, 581 (2008) (cleaned up) (quoting

Cardegna, 546 U.S. at 443)). In other words, when

applying the federal policy favoring arbitration, “the

court is not to place its thumb on the scales” one way

6

or the other. Cabinetree of Wis., Inc. v. Kraftmaid

Cabinetry, Inc., 50 F.3d 388, 390 (7th Cir. 1995).

Treating arbitration clauses equally with other

contracts means they should be interpreted under the

same legal principles that apply to other contracts.

Under the FAA, “courts should apply ordinary statelaw principles that govern the formation of contracts.”

First Options, 514 U.S. at 944; see also Arthur

Andersen, 556 U.S. at 632 (indicating that the defense

of equitable estoppel to arbitration agreements would

apply based on what “relevant state contract law” says

about equitable estoppel). 3

There is no claim here that state contract law waiver

principles are preempted by the FAA. This Court will not apply

state contract law principles if they conflict with fundamental

attributes of arbitration and therefore are preempted by the FAA.

See, e.g., Lamps Plus, Inc. v. Varela, 139 S. Ct. 1407, 1418 (2019)

(finding that the contract principle of contra proferentem could

not be used to require parties to submit to class arbitration where

the parties did not expressly agree to class arbitration). However,

no one has argued that longstanding state waiver principles

which focus on intent rather than prejudice somehow undermine

arbitration’s fundamental attributes. Rather, not requiring

prejudice is consistent with the FAA’s focus on party intent, on

promoting the speedy resolution of disputes, and on prohibiting

the kind of gamesmanship that parties used to back out of their

contractual agreements prior to the FAA’s enactment. See

Arbitration of Interstate Commercial Disputes: Joint Hearing on

S. 1005 and H.R. 646 Before the S. Comm. on the Judiciary and

the H. Comm on the Judiciary, 68th Cong. 33, 35 (1924) (written

statement of Julius Henry Cohen) (emphasizing that the FAA

was needed because “a party has been at absolute liberty to

disregard his engagement to enter into arbitration any time

before the award actually is handed down,” and that a party will

change their mind about arbitrating when that party “sees an

3

7

As Petitioner explains, prejudice is not an element

of waiver under general state contract principles. Pet.

23-25; see also Mounteer Enters., Inc. v. Homeowners

Ass'n for the Colony at White Pine Canyon, 422 P.3d

809, 815 (Utah 2018) (“The prejudice requirement is a

doctrinal misfit in the law of waiver.”). Nevertheless,

the majority of federal circuits as well as several state

appellate courts have engrafted prejudice as an extra

requirement for waiver of arbitration clauses. In doing

so, they have abandoned this Court’s instructions to

provide equal treatment to arbitration clauses and to

incorporate state contract law. Rather, they do not

even purport to analyze, let alone apply, state contract

principles. Instead, as explained below, they have

imposed their own prejudice requirement crafted out

of whole cloth. As a result, they have singled out

arbitration clauses for differential treatment and

“placed their thumbs on the scale” in a manner

inconsistent with the FAA. Cabinetree, 50 F.3d at 390.

B. Those Courts Requiring Prejudice as an

Element of Waiver Have Misapplied the

Federal Policy Favoring Arbitration.

The prejudice requirement also violates the FAA’s

rule that courts apply state contract law to arbitration

agreements. The prejudice requirement is not

grounded in state contract law. Nor is it grounded in

the text or structure of the FAA. Rather, it is a

judicially created doctrine that lacks legal basis.

advantage in the delay and trouble to which his opponent will be

put to enforce his rights through the courts”).

8

The lower courts’ description of the prejudice

requirement shows how they are misapplying the

federal policy favoring arbitration and treating

arbitration clauses differently from other contracts.

For example, the Second Circuit directly tied the

prejudice requirement to the federal policy favoring

arbitration: “Given this dominant federal policy

favoring arbitration, waiver of the right to compel

arbitration due to participation in litigation may be

found only when prejudice is to the other party is

demonstrated.” Rush v. Oppenheimer & Co., 779 F.2d

885, 887 (2d Cir. 1985). The court never even

attempted to apply state contract law. Rather, it cited

federal cases and created a special and unequal waiver

rule for arbitration clauses vis-à-vis other contracts.

Other circuits have similarly and incorrectly

derived this specialized prejudice requirement from

their misreading of the federal policy favoring

arbitration. See, e.g., Fisher v. A.G. Becker Paribas,

Inc., 791 F.2d 691, 694 (9th Cir. 1986) (stating that

“[a]any examination of whether the right to compel

arbitration has been waived must be conducted in

light of the strong federal policy favoring enforcement

of arbitration agreements,” and then concluding that

arbitration waiver requires showing “prejudice to the

party opposing arbitration”). In that case, as in Rush,

the Ninth Circuit never mentioned the contract law of

Idaho, the state where the case arose, let alone

attempted to apply it.

The Fifth Circuit made explicit what was the

Second and Ninth Circuits held implicitly. In holding

that arbitration waiver will be found only when the

party seeking arbitration acts “to the detriment or

9

prejudice of the other party,” the Fifth Circuit

expressly rejected Texas contract law that made

waiver turn on party intent rather than prejudice.

Miller Brewing Co. v. Fort Worth Distrib. Co., Inc., 781

F.2d 494, 497 (5th Cir. 1986). It held:

The issue of arbitrability under the United

States Arbitration Act is a matter of federal

substantive law. We thus dismiss out of hand

FWDC’s citation to 60 Tex. Jur. 2d. 199 for the

proposition that ‘waiver is a question of fact

based largely on intent. It is defined as ‘an

intentional

release,

relinquishment,

or

surrender of a right that is at the time known

to the party making it.’

Id. at 497 n.4.

This improper use of the federal policy favoring

arbitration and rejection of state contract law also has

affected how state courts have addressed arbitration

waiver. For example, the Washington Court of

Appeals acknowledged that “prejudice is not required

under state law” to show waiver, but nonetheless

required prejudice for arbitration waiver based on

federal circuit decisions treating arbitration waiver as

an issue of federal law. Kinsey v. Bradley, 765 P.2d

1329, 1331 (Wash. Ct. App. 1989); see also MSO, LLC

v. DeSimone, 94 A.3d 1189, 1198 (Conn. 2014)

(adopting prejudice as a requirement for arbitration

waiver because it “is consistent with the majority of

federal circuit courts which similarly require prejudice

to the party opposing arbitration on the grounds of

waiver” and expressing a desire for a “uniform

approach”).

10

To be sure, it is understandable that federal courts

may have thought that federal law should determine

whether a party waived the right to enforce an

arbitration clause and that state contract law did not

apply. Many of the early decisions on waiver date back

to the 1980s. This was soon after this Court first

articulated the federal policy favoring arbitration in

Moses H. Cone Memorial Hospital v. Mercury

Construction Corp., 460 U.S. 1, 24-25 (1983), but

before the Court more explicitly held that the FAA

requires applying state contract law principles to

arbitration agreements. See First Options, 514 U.S. at

944; see also Arthur Andersen, Inc., 556 U.S. at 632.

Similarly, while this Court had previously held that

the FAA makes “arbitration 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), 4 this Court’s strong reaffirmance of

the equal treatment principle did not come until later.

See, e.g., Volt Info. Sciences, Inc., 489 U.S. at 478.

Nonetheless, the circuits have failed to keep pace with

this Court’s decisions, and have continued to ignore

state contract law and misconstrue the federal policy

favoring arbitration when addressing waiver of

arbitration provisions. Those errors will continue

unless this Court resolves this circuit split and

instructs that arbitration waiver should be

4 See also Scherk v. Alberto-Culver Co., 417 U.S. 506, 511

(1974) (recognizing that the FAA was intended “to place

arbitration agreements ‘upon the same footing as other

contracts . . . .’” (quoting H.R. Rep. No. 96, 68th Cong., 1st

Sess., 1, 2 (1924)).

11

determined by the same state law that determines

waiver of any other contractual provision.

C. This Court Previously Has Corrected

Lower Courts that Have Improperly

Created a Federal Common Law for

Evaluating

Arbitration

Agreements

Rather than Applying State Contract

Law.

This Court should grant certiorari so that it can

correct the lower courts’ improper use of the federal

policy favoring arbitration and their failure to apply

state law. This Court has previously acted when the

federal circuit courts had created a federal common

law for evaluating the application of arbitration

agreements to non-signatories. This Court’s guidance

helped the circuits revise their doctrine and apply

state contract law principles going forward. One

common issue that can arise regarding arbitration

agreements—as with other contracts—is when nonsignatories can enforce or be bound by an arbitration

agreement. When it came to the question of whether

the doctrine of equitable estoppel allowed nonsignatories to enforce arbitration agreements, several

circuits relied on the federal policy favoring

arbitration to treat equitable estoppel in arbitration

as a question of federal law. See, e.g., Grigson v.

Creative Artists Agency, L.L.C., 210 F.3d 524, 527 (5th

Cir. 2000).

In Arthur Andersen LLP v. Carlisle, this Court

indicated that the applicability of equitable estoppel

in arbitration depends on “whether relevant state

contract law” would recognize equitable estoppel and

12

on “what standard” state contract law would apply.

556 U.S. at 632. The circuit courts responded by

recognizing that their previous decisions creating a

federal common law of equitable estoppel were

improper, and by applying state law equitable

estoppel principles going forward. See, e.g., Crawford

Praful Drugs, Inc. v. 748 F.3d at 261-62

(“Consequently, prior decisions allowing nonsignatories to compel arbitration based on federal

common law rather than state contract law, such as

Grigson, have been modified to conform with Arthur

Andersen.”); see also AtriCure, Inc., 2021 WL 3823418

at *4-5 (“To the extent that our decision in Arnold [v.

Arnold Corp., 920 F.3d 1269, 1281 (6th Cir. 1990)]

suggested that this issue [of equitable estoppel] rested

on federal common law, its analysis did not survive

Arthur Andersen.”); Lawson v. Life of the South Ins.

Co., 648 F.3d 1166, 1172 (11th Cir. 2011) (stating that

Arthur Andersen “clarifies that state law governs that

question [of equitable estoppel], and to the extent any

of our earlier decisions indicate to the contrary, those

indications are overruled or at least undermined to the

point of abrogation by Carlisle”). In short, by clarifying

that state contract law applies to arbitration

agreements, this Court caused the circuit courts to

reject their prior misguided federal common law

approach and to start applying state law. This Court

should do the same here to correct the circuits’

improper approach to arbitration waiver.

Additionally, lower courts have indicated that they

would benefit from guidance from this Court. Current

law contains a mishmash of different standards that

vary across the circuits and that are difficult for other

courts to parse. In the words of one court:

13

A Nordic smorgasbord of United States Circuit

Court of Appeals decisions greets us on the

subject of prejudice for purposes of arbitration

waiver. Oodles of federal appeals court

decisions analyze the nature and extent of

prejudice required and whether the nonmoving

party suffered prejudice sufficient to harness

waiver. The various circuits take differing

views and apply distinct tests.

Shuster v. Prestige Senior Mgmt., L.L.C., 376 P.3d 412,

423 (Wash. Ct. App. 2016). One of the simplest ways

to cut through these varied approaches to prejudice is

to grant certiorari and determine that prejudice is not

an element of waiver, just as it is not an element of

waiver for any other contractual provision.

CONCLUSION

For the foregoing reasons, amici curiae respectfully

request that this Court grant the Petition for a Writ of

Certiorari to determine whether prejudice is a

required element for waiver of the right to enforce an

arbitration clause.

Respectfully submitted,

RICHARD H. FRANKEL

Counsel of Record

DREXEL UNIVERSITY

THOMAS R. KLINE SCHOOL OF LAW

3320 Market Street

Philadelphia, PA 19104

(215) 571-4807

rhf24@drexel.edu

Dated: September 29, 2021

App. 1

APPENDIX A

List of signatories (in alphabetical order)

Richard M. Alderman

Professor Emeritus

Director of the Center for Consumer Law

University of Houston Law Center

Dr. Henry Allen Blair, Ciara.

Robins Kaplan Distinguished Professor of Law

John H. Faricy Professor of Empirical Research

Senior Fellow, Dispute Resolution Institute

Mitchell Hamline School of Law

Andrea J. Boyack

Norman R. Pozez Chair of Business and Transactional

Law Professor of Law Co-Director of Business &

Transactional Law Center

Washburn University School of Law

David Cohen

Professor of Law

Drexel University

Thomas R. Kline School of Law

Myanna Dellinger

Professor of Law

University of South Dakota School of Law

Larry T. Garvin

Lawrence D. Stanley Professor of Law

The Ohio State University, Moritz College of Law

App. 2

Farshad Ghodoosi

Assistant Professor, Department of Business Law

David Nazarian College of Business and Economics

California State University, Northridge

David Horton

Martin Luther King, Jr. Professor of Law

University of California, Davis

School of Law (King Hall)

Hila Keren

Associate Dean of Research &

Paul E. Treusch Professor of Law

Montgomery Foundation Scholar 2021-2022

Southwestern Law School

Ariana R. Levinson

Distinguished Teaching Professor

University of Louisville Brandeis School of Law

Keith A. Rowley

William S. Boyd Professor of Law

William S. Boyd School of Law

University of Nevada Las Vegas

Norman Stein

Professor of Law

Drexel University

Thomas R. Kline School of Law

Jeffrey W. Stempel

Doris S. & Theodore B. Lee Professor of Law

William S. Boyd School of Law

University of Nevada Las Vegas