Michelle Richards v. Ernst & Young, LLP

Defendant Ernst & Young, LLP appeals the district court’s denial of its motion to compel arbitration of state wage and hour claims asserted by its former employee, Michelle Richards. The defendant filed the motion after the Supreme Court’s decision in AT & T Mobility LLC v. Concepcion, — U.S. -, 131 S.Ct. 1740 , 179 L.Ed.2d 742 (2011). 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.

`Waiver of a contractual right to arbitration is not favored,” and, therefore, “any party arguing waiver of arbitration bears a heavy burden of proof.” Fisher v. A.G. Becker Paribas Inc., 791 F.2d 691, 694 (9th Cir.1986) (quotation marks omitted). Specifically, “[a] party seeking to prove waiver of a right to arbitration must demonstrate: (1) knowledge of an existing right to compel…