This case involved a wage and hour class action.? ?The employer engaged in litigation on the merits and the lead plaintiff?s meal and rest break claims were dismissed without prejudice. The?? district? ?court? ?also? ?ruled? ?that? ?former employees had no standing to ask for injunctive relief. ?The district court held that the employer waived its right to compel arbitration. ?The Ninth Circuit reversed.

The court held that the waiver of a contractual right to arbitration is not favored and the party arguing waiver must show prejudice. The court? held? that? the ?district? court?s? rulings were not decisions on the merits. ?Although the employer? had ?engaged ?in ?discovery, ?the employee did not show that it was discovery that wouldn?t have occurred in the arbitration.?? The court held that any expense incurred by the plaintiff as a result of the employee?s deliberate choice of an improper forum could not constitute prejudice.

The panel refused to affirm the district court ?decision ?on ?the ?basis ?of ?the ?NLRB?s decision in D.R. Horton.? ?The plaintiff had not raised this argument in the district court.? ?Most courts have rejected D.R Horton and it conflicted with the Supreme Court?s decision in American Express v. Italian Colors Restaurant.? ?Congress did ?not ?claim ?to ?override ?the ?FAA ?when ?it enacted the Norris LaGuardia Act or the NLRA. Richards v. Ernst & Younng LLP, — F.3d ? (9th Cir. ?Aug. ?21, ?2013) ?(per ?curiam) ?(Schroeder, Ripple (7th Cir.), Callahan)