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Robyn Morgan v. Sundance, Inc.

Paid petition · United States Court of Appeals for the Eighth Circuit, No. 19-2435 · judgment March 30, 2021

Decided · May 23, 2022
Pre-decision estimate: 2% cert probability

Before the decision, well below the 4.1% base rate, with no standout signals pointing toward a grant.

Question presented

Waiver is the intentional relinquishment of a known right and, in the context of contracts, occurs when one party to a contract either explicitly repudiates its rights under the contract or acts in a manner inconsistent with an intention of exercising them. In the opinion below, the Eighth Circuit joined eight other federal courts of appeals and most state supreme courts in grafting an additional requirement onto the waiver analysis when the contract at issue happens to involve arbitration-requiring the party asserting waiver to show that the waiving party's inconsistent acts caused prejudice. Three other federal courts of appeal, and the supreme courts of at least four states, do not include prejudice as an essential element of proving waiver of the right to arbitrate. The question presented is: Does the arbitration-specific requirement that the proponent of a contractual waiver defense prove prejudice violate this Court's instruction that lower courts must "place arbitration agreements on an equal footing with other contracts?" AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011).

Counsel of record

For petitioner
Karla Ann Gilbride
Public Justice, P.C.

For respondent
Paul D. Clement
Kirkland & Ellis LLP

Case

Conference history
Distributed for 2 conferences

Amicus briefs
8 merits
(5 supporting pet./neither, 3 respondent)

Argument & decision

Argued March 21, 2022 — Karla A. Gilbride · Paul D. Clement. Audio and transcript

Decided May 23, 2022. Opinion by Kagan.

Proceedings

  1. Jun 24 2022
    JUDGMENT ISSUED
  2. May 23 2022
    Judgment VACATED and case REMANDED. Kagan, J., delivered the opinion for a unanimous Court.
  3. Mar 21 2022
    Argued. For petitioner: Karla A. Gilbride, Washington, D. C. For respondent: Paul D. Clement, Washington, D. C.
  4. Mar 11 2022
    Reply of petitioner Robyn Morgan filed. (Distributed)
    Main DocumentProof of ServiceCertificate of Word Count
  5. Feb 11 2022
    CIRCULATED
  6. Feb 11 2022
    Brief amicus curiae of Restaurant Law Center filed. (Distributed)
    Main DocumentCertificate of Word CountProof of Service
  7. Feb 11 2022
    Brief amicus curiae of Chamber of Commerce of the United States of America filed. (Distributed)
    Main DocumentProof of ServiceCertificate of Word Count
  8. Feb 09 2022
    Brief amicus curiae of Washington Legal Foundation filed.
    Main DocumentCertificate of Word CountProof of Service
  9. Feb 04 2022
    Brief of respondent Sundance, Inc. filed.
    Main DocumentCertificate of Word CountProof of Service
  10. Jan 28 2022
    ARGUMENT SET FOR Monday, March 21, 2022.
  11. Jan 26 2022
    Record requested from the U.S.C.A. 8th Circuit.
  12. Jan 18 2022
    Blanket Consent filed by Petitioner, Robyn Morgan
    Blanket Consent
  13. Jan 06 2022
    Brief amicus curiae of The National Academy of Arbitrators filed.
    Main DocumentCertificate of Word CountProof of Service
  14. Jan 06 2022
    Brief amici curiae of Law Professors filed.
    Main DocumentCertificate of Word CountProof of Service
  15. Jan 06 2022
    Brief amici curiae of Minnesota, Maryland, et al. filed.
    Main DocumentCertificate of Word CountProof of Service
  16. Jan 06 2022
    Brief amicus curiae of Public Citizen filed.
    Main DocumentCertificate of Word CountProof of Service
  17. Jan 05 2022
    Brief amicus curiae of American Association for Justice filed.
    Main DocumentCertificate of Word CountProof of Service
  18. Dec 30 2021
    Brief of petitioner Robyn Morgan filed.
    Main DocumentCertificate of Word CountProof of Service
  19. Dec 30 2021
    Joint appendix filed. (Statement of costs filed)
    Main DocumentProof of Service
  20. Dec 29 2021
    Blanket Consent filed by Respondent, Sundance, Inc.
    Blanket Consent
  21. Dec 15 2021
    Application (21A215) granted by Justice Kavanaugh extending the time to file the reply brief on the merits until March 11, 2022.
  22. Dec 15 2021
    Motion to extend the time to file respondent's brief on the merits granted and the time is extended to and including February 4, 2022.
  23. Nov 30 2021
    Motion for an extension of time to file respondent's brief on the merits filed.
    Main Document
  24. Nov 30 2021
    Application (21A215) to extend the time to file a reply brief on the merits to March 11, 2022, submitted to Justice Kavanaugh.
    Main DocumentOtherProof of Service
  25. Nov 15 2021
    Motion for leave to file amici brief filed by Law Professors GRANTED.
  26. Nov 15 2021
    Petition GRANTED.
  27. Nov 08 2021
    DISTRIBUTED for Conference of 11/12/2021.
  28. Oct 20 2021
    DISTRIBUTED for Conference of 11/5/2021.
  29. Oct 15 2021
    Reply of petitioner Robyn Morgan filed.
    Main DocumentProof of ServiceCertificate of Word Count
  30. Oct 01 2021
    Brief of respondent Sundance, Inc. in opposition filed.
    Main DocumentProof of ServiceCertificate of Word Count
  31. Sep 29 2021
    Motion for leave to file amici brief filed by Law Professors.
    Main DocumentCertificate of Word CountProof of Service
  32. Aug 27 2021
    Petition for a writ of certiorari filed. (Response due October 1, 2021)
    PetitionAppendixProof of ServiceCertificate of Word Count