Richards v. Ernst & Young: Ninth Circuit Holds That Defendant Did Not Waive Right to Move to Compel Arbitration

Richards v. Ernst & Young, LLP, ___ F.3d ___ (9th Cir. 8/21/13) is another case addressing whether a defendant can bring or renew a motion to compel arbitration in the wake of the Supreme Court's decision in AT&T Mobility LLC v. Concepcion. See, e.g., Phillips v. Sprint PCS (9/26/12) 209 Cal.App.4th 758, review denied 12/19/12 (discussed here).

The Ninth Circuit here reversed a district court order denying the defendant's motion to compel arbitration: 

The district court determined that Ernst & Young had waived its right to arbitration by failing to assert that right as a defense in an action brought by two other former employees, David Ho and Sarah Fernandez, whose action had been consolidated with that of Ms. Richards. Because Ms. Richards has not established any prejudice as a result of Ernst & Young’s alleged delay in asserting its arbitral rights, we reverse the judgment of the district court.

Slip op. at 3. 

The case appears to be a class action, and the arbitration agreement at issue appears to include a class action waiver, but the Court did not address the merits of those issues at any length. 

The opinion is available here.