Hill v. Xerox Business Services, LLC

A party waives its right to compel arbitration when (1) it has knowledge of the right, and (2) it acts inconsistently with that right.

Hill brought employment compensation claims against Xerox Business Services (XBS) on behalf of herself and a putative class of current and former agents. Some of the potential class members signed a Dispute Resolution Plan (DRP) from either 2002 or 2012. XBS cited the 2012 DRP in their arguments opposing class certification, then sought to compel arbitration after certification was granted. XBS later argued there was no existing right to compel arbitration, and even if there were, they did not have knowledge of it and could not have waived it. A party waives its right to compel arbitration when (1) it has knowledge of the right, and (2) it acts inconsistently with that right. Because XBS raised the 2012 DRP prior to class certification, it was clear they had knowledge of their right to compel arbitration as well as how to do so. XBS acted inconsistently with this right under the 2002 DRP by litigating the merits of the claims raised by those signatories for six years. Additionally, the selective enforcement of the two DRPs showed XBS was making strategic litigation choices instead of resolving matters before an arbitrator. XBS therefore had knowledge of their right to compel arbitration and acted inconsistently with that right. Order denying Appellant’s motion to compel arbitration under the 2002 DRP affirmed.