Arbitration, waived

Zurvita Holdings, Inc. v. Jarvis offers a detailed analysis of an arbitration-waiver issue. Its holdings are, inter alia:

• In its 2023 TotalEnergies opinion, the supreme court clarified “who decides arbitrability when the agreement incorporates the AAA or similar rules that delegate arbitrability to the arbitrator,” but “dot not address waiver of the right to arbitrate.”
• “[A]n agreement that is silent about arbitraing claims against non-signatories does not unmistakably mandate arbitration or arbitrability in such cases.”
• “Substantial invocation of the judicial process” was established by a record involving an 11-month delay in asserting an arbitraion right, actively pursuing expedited discovery, and pursuing a summary judgment motion. (Consistent with current Texas law, the Court also reviewed whether the delay caused prejudice–an issue that the Texas Supreme Court is likely to consider after the U.S. Supreme Court recently did away with that additional waiver requirement under the Federal Arbitration Act.)

No. 05-23-00661-CV (March 14, 2024) (mem. op.)