In a published opinion issued on March 27, 2024, the Sixth
Circuit applied for the first time the waiver standard announced in
the Supreme Court's 2022 opinion, Morgan v. Sundance,
Inc., 596 U.S. 411 (2022), in affirming the denial of a motion
to compel arbitration due to the defendant's extensive
participation in the litigation. Post-Morgan, plaintiffs
need not prove that defendants' participation in litigation
prejudiced them—instead, plaintiffs in the Sixth Circuit need
only prove that the defendants' litigation conduct was
"completely inconsistent" with any reliance on an
arbitration agreement.
Prior to Morgan, many federal courts, including the
Sixth Circuit, held that a party who participates in litigation
prior to moving to compel arbitration has not waived its right to
arbitrate unless, among other things, its conduct prejudiced the
other side. But in Morgan, the Supreme Court clarified
that courts should apply ordinary waiver rules when deciding
whether a
