Sky Sports v. Superior Court: Court of Appeal Finds No Waiver of Right to Arbitrate

Sky Sports, Inc. v. Superior Court (Hogan) (12/15/11) 2011 WL 6225228, brings an interesting twist to the question of whether a party waives its right to demand arbitration by taking part in litigation.

The plaintiff filed a putative class action against his former employer for meal and rest period violations. In opposition to the plaintiff's motion for class certification, the defendant argued that he was not typical of the class because, unlike the majority of his co-workers, he had not signed an arbitration agreement. The trial court (Los Angeles Superior, Judge Ernest M. Hiroshige) granted certification and held that the defendant had waived its right to compel arbitration. Slip op. at 2.

The Court of Appeal reversed. The Court held that the defendant could not have compelled the plaintiff to arbitrate because he had not signed an agreement to arbitrate. Slip op. at 3. The defendant's delay in bringing the motion to compel arbitration until certification of a class that included people who had signed an arbitration agreement could not constitute a waiver of the defendant's right to move compel arbitration. Slip op. at 4.

The opinion is available here.