holding that delay in asserting right to arbitrate alone did not constitute waiverSummary of this case from Summit Cmty. Bank v. Se. Land, LLC
Jonathan R. Marshall, Esq., Ryan McCune Donovan, Esq., Bailey & Glasser, LLP, Charleston, WV, Rodney A. Smith, Esq., Todd S. Bailess, Esq., Joy B. Mega, Esq., Bailess Law, PLLC, Charleston, WV, for Petitioner. Marla N. Presley, Esq., Bethany S. Wagner, Esq., Jackson Lewis P.C., Pittsburgh, Pennsylvania, for Respondent.
Concurring and Dissenting Opinion of
Jonathan R. Marshall, Esq., Ryan McCune Donovan, Esq., Bailey & Glasser, LLP, Charleston, WV, Rodney A. Smith, Esq., Todd S. Bailess, Esq., Joy B. Mega, Esq., Bailess Law, PLLC, Charleston, WV, for Petitioner.
Marla N. Presley, Esq., Bethany S. Wagner, Esq., Jackson Lewis P.C., Pittsburgh, Pennsylvania, for Respondent.
Chief Justice, KETCHUM :
In this appeal from the Circuit Court of Kanawha County, we address the state common law doctrine of waiver as it relates to arbitration. The plaintiff asserts that the defendant implicitly waived a contractual right to arbitration by participating in litigation.
The circuit court entered an order finding the defendant had not waived its right to arbitration because it did not participate in the plaintiff's lawsuit, and because the defendant's first court filing asserted the contractual right to arbitration. As set forth below, we affirm the circuit court's order compelling the parties to arbitrate their dispute.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Richard Parsons was employed by defendant Halliburton Energy Services, Inc. Within the plaintiff's employment agreement was a provision that all disputes with the defendant “shall be finally and conclusively resolved through arbitration ... instead of through trial before a court.”
The plaintiff worked for the defendant from June until October 2013. On December 3, 2013, the plaintiff filed a complaint in the Circuit Court of Kanawha County alleging that the defendant did not timely pay him his final wages as required by the West Virginia Wage Payment and Collection Act (“the WPCA”). The plaintiff's complaint also sought to create a class action composed of other former employees of the defendant who were not timely paid their final wages.
See W.Va.Code §§ 21–5–1 to –18.
On July 7, 2014, some seven months after the plaintiff filed his complaint, the defendant's first court filing was a motion seeking to compel the plaintiff to participate in arbitration. The plaintiff responded to the motion by arguing that the defendant had waived its contractual right to arbitration by failing to timely raise arbitration, and by acting inconsistently with its contractual right to arbitration in the previous seven months. The defendant never filed an answer to the plaintiff's complaint before moving to compel arbitration, yet the plaintiff contends the defendant still participated in the litigation.
As evidence of the defendant's participation, the plaintiff asserts that shortly after the complaint was filed, on December 16, 2013, counsel for the defendant exchanged e-mails with plaintiff's counsel asking for a 45–to–60 day filing extension to plead in the lawsuit. Defense counsel stated the defendant was “in the process of tracking down whether and to what extent” other employees were not paid in accordance with the WPCA, and offered to produce information about other employees to “short-circuit” discovery and litigation. Plaintiff's counsel agreed to the delay by the defendant.
On April 21, 2014, defense counsel contacted plaintiff's counsel by e-mail and asked for additional time to plead. Defense counsel asked if he was “still okay with the responsive pleading deadline and, if we're close, can I ask that it be pushed out again?” In a subsequent phone conversation with plaintiff's counsel, defense counsel said he expected to respond to the plaintiff's needs within two to three weeks.
Some five months after the complaint was filed, on May 22, 2014, plaintiff's counsel wrote an e-mail to defense counsel. Plaintiff's counsel noted that defense counsel had not produced the promised information, and said the plaintiff was not providing “an open-ended extension for Halliburton to respond[.]” A new defense lawyer (within the same firm) promptly responded to the e-mail from plaintiff's counsel. The new defense lawyer stated the prior lawyer was no longer working on the case, and said she would need additional time to “get a handle on the status” of the case. Two new lawyers noted their appearances as counsel for the defendant in the last week of June 2014, and the defendant's first substantive filing in the court record—the motion to compel arbitration—was filed on July 7, 2014.
In an order dated November 14, 2014, the circuit court granted the defendant's motion, dismissed the plaintiff's complaint and compelled the parties to participate in arbitration. The circuit court determined that the defendant had not waived its rights under the arbitration provision. Although the defendant admitted to a seven-month delay before moving for arbitration, the circuit court found that the defendant had “not actively participated in this lawsuit.” Moreover, the circuit court found the plaintiff was required, but had failed, to prove he was prejudiced by the defendant's actions or delay.
The plaintiff now appeals the circuit court's order dismissing his complaint and compelling him to arbitrate his claims against the defendant.
STANDARD OF REVIEW
“Appellate review of a circuit court's order granting a motion to dismiss a complaint is de novo. ” Syllabus Point 2, State ex rel. McGraw v. Scott Runyan Pontiac–Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995).
The facts below are not disputed, and the parties agree that the plaintiff's claims fall within the scope of a clear and unambiguous arbitration agreement. Additionally, the plaintiff does not challenge the enforceability of the arbitration agreement under West Virginia's general contract law. The sole question on appeal is whether the defendant's actions, viewed under principles of state contract law, served to waive its contractual right to arbitration.
The plaintiff insists the defendant actively participated in the underlying litigation by volunteering to produce class-wide discovery and by repeatedly seeking extensions of time to file a responsive pleading. The plaintiff argues the defendant's actions were contrary to its contractual right to avoid the court system and demonstrated the defendant's intent to waive the protection afforded by the contractual arbitration provision.
The defendant counters that these actions did not rise to a level of “substantial participation” in the litigation process, and on balance are not of enough significance to demonstrate waiver. Furthermore, the defendant asserts the plaintiff was required to establish “actual prejudice” before a court could find waiver of a contract right, and asserts the plaintiff failed to meet this burden.
It is a well-established principle of contract law that contract rights can be waived. Under West Virginia contract law (and the contract law of most other states), the “waiver” of a contract right is “defined as the voluntary, intentional relinquishment of a known right.” Hoffman v. Wheeling Sav. & Loan Ass'n, 133 W.Va. 694, 712, 57 S.E.2d 725, 735 (1950). “To effect a waiver, there must be evidence which demonstrates that a party has intentionally relinquished a known right.” Syllabus Point 2, in part, Ara v. Erie Ins. Co., 182 W.Va. 266, 387 S.E.2d 320 (1989). “There must be first, the existence of the right; second, knowledge of the existence of such right; and third, voluntary intention to relinquish.” Hoffman, 133 W.Va. at 713, 57 S.E.2d at 735. Once a right has been waived, it is forever gone and cannot be reclaimed. “The contractual doctrine of waiver, whether express or implied, seems ... to rest on an idea no more complicated than that any competent adult can abandon a legal right and if he does so then he has lost it forever.” McElroy v. B.F. Goodrich Co., 73 F.3d 722, 724 (7th Cir.1996).
See also, Nationwide Mut. Ins. Co. v. Smith, 153 W.Va. 817, 826, 172 S.E.2d 708, 713 (1970) (“Waiver as generally defined is the intentional relinquishment of a known right.”); Dye v. Pennsylvania Cas. Co., 128 W.Va. 112, 118, 35 S.E.2d 865, 868 (1945) (“Waiver is the voluntary relinquishment of a known right.”).
Waiver of a contract right may be made by an express statement or agreement, or it may be implied from the conduct of the party who is alleged to have waived a right. “Waiver may be established by express conduct or impliedly, through inconsistent actions.” Ara, 182 W.Va. at 269, 387 S.E.2d at 323. “Of course a waiver may be express or it may be inferred from actions or conduct, but all the attendant facts, taken together, must amount to an intentional relinquishment of a known right, in order that a waiver may exist.” Blue v. Hazel–Atlas Glass Co., 106 W.Va. 642, 650, 147 S.E. 22, 25–26 (1929).
To rely upon the doctrine of waiver under the common law, a party is not required to show prejudice or detrimental reliance caused by the opposing party's waiver of a contract right. As Chief Justice Davis stated, “The doctrine of waiver focuses on the conduct of the party against whom waiver is sought, and requires that party to have intentionally relinquished a known right. There is no requirement of prejudice or detrimental reliance by the party asserting waiver.” Potesta v. U.S. Fid. & Guar. Co., 202 W.Va. 308, 315–16, 504 S.E.2d 135, 142–43 (1998).
Waiver does not require proof of prejudice or detrimental reliance because “[w]aiver is within the control of the party who chooses to relinquish a condition [in the contract], quite apart from whether another party relies on relinquishment.” 8 Catherine M.A. McCauliff, Corbin on Contracts § 40.1 (1999). “Waiver is essentially unilateral in its character; it results as a legal consequence from some act or conduct of the party against whom it operates; no act of the party in whose favor it is made is necessary to complete it.” Equitable Life Assur. Soc'y of U.S. v. Ellis, 105 Tex. 526, 147 S.W. 1152, 1157 (1912). See also Nathan Miller, Inc. v.
N. Ins. Co. of New York, 39 A.2d 23, 25 (Del.Super.1944) (“In strictness, waiver is referable to the act or conduct of one party only. It depends on what one party intended to do, rather than upon what he induced his adversary to do, as in estoppel.”); Salloum Foods & Liquor, Inc. v. Parliament Ins. Co., 69 Ill.App.3d 422, 26 Ill.Dec. 399, 388 N.E.2d 23, 27–28 (1979) (“Waiver encompasses either an express or an implied voluntary and intentional relinquishment of a known and existing right. Waiver is essentially unilateral in character, focusing only upon the acts and conduct of the insurer. Prejudice to, or detrimental reliance by the insured is not required.” (Citations omitted)).
Under general principles of state contract law, waiver requires proof of “a voluntary act which implies a choice by the party to dispense with something of value, or to forego some advantage which he might at his option have demanded and insisted on.” Hoffman, 133 W.Va. at 713, 57 S.E.2d at 735. “Waiver is the voluntary surrender of a right; estoppel is the inhibition to assert a right which the law places on one as a consequence of his own conduct which has resulted in injury or detriment to another ... Waiver depends upon what one himself intends to do; estoppel depends rather upon what he caused his adversary to do.” Northwestern Nat. Life Ins. Co. v. Ward, 56 Okla. 188, 155 P. 524, 527 (1915). Waiver arises from the voluntary actions of the contract's obligor alone; to create an estoppel, both the obligor and obligee must act. 8 Corbin on Contracts at § 40.1. As we said in Syllabus Point 2, in part, of Ara v. Erie Insurance Company:
To effect a waiver, there must be evidence which demonstrates that a party has intentionally relinquished a known right. Estoppel applies when a party is induced to act or to refrain from acting to her detriment because of her reasonable reliance on another party's misrepresentation or concealment of a material fact.
In summary, on the question of prejudice or detrimental reliance, the distinction between the common law doctrines of estoppel and waiver is simple: estoppel requires proof of prejudice or detrimental reliance; waiver does not. We therefore hold that the common-law doctrine of waiver focuses on the conduct of the party against whom waiver is sought, and requires that party to have intentionally relinquished a known right. A waiver may be express or may be inferred from actions or conduct, but all of the attendant facts, taken together, must amount to an intentional relinquishment of a known right. There is no requirement of prejudice or detrimental reliance by the party asserting waiver.
Still, the doctrine of waiver is sometimes confused with the doctrine of estoppel, particularly on the question of prejudice and detrimental reliance. The result is that “the terms ‘waiver’ and ‘estoppel’ have often been used without careful distinction, and thereby abused and confused.” Salloum Foods & Liquor, Inc., 26 Ill.Dec. 399, 388 N.E.2d at 27. See also Evelyn v. Raven Realty, Inc., 215 Md. 467, 138 A.2d 898, 900 (1958) (“There is even confusion in the use of the terms ‘waiver’ and ‘estoppel’. Many law writers and courts make no effort to distinguish them and use the terms interchangeably.”); Libby v. Haley, 91 Me. 331, 39 A. 1004, 1005 (1898) ( “[T]he cases do not all recognize this distinction, and apply the doctrines of waiver and estoppel indiscriminately in furtherance of justice.”). Even the treatise Williston on Contracts goes so far as to say that “true, pure, or actual waiver” does not require prejudice while “waiver by estoppel” does. 13 Samuel Williston, Richard Lord, A Treatise on the Law of Contracts § 39:27 (4th ed.2013) (footnotes omitted). See generally, id. § 39:28 (true waiver based on intent) and § 39:29 (waiver by estoppel based on detrimental reliance).
Cases in West Virginia have not been immune to the confusion and have indiscriminately used the terms “waiver” and “estoppel.” In Potesta, Chief Justice Davis recognized that the terms “are often used interchangeably with respect to insurance law.” 202 W.Va. at 315, 504 S.E.2d at 142. For instance, in Syllabus Point 3 of National Mut. Ins. Co. v. McMahon & Sons, Inc., 177 W.Va. 734, 356 S.E.2d 488 (1987), this Court said, “Detrimental reliance is essential to the assertion of waiver or estoppel.” Similarly, in Syllabus Point 3 of Jarvis v. Pennsylvania Cas. Co., 129 W.Va. 291, 40 S.E.2d 308 (1946), we said that an insurer's denial of coverage under an insurance policy “does not result in a waiver or estoppel ... where no prejudice results to the insured from reliance on the initial statement of the insurer.” These cases are plainly wrong, because considerations of prejudice and detrimental reliance are not essential to the assertion of waiver. To ensure clarity in our law, we hold that, to the extent that Syllabus Point 3 of Jarvis and Syllabus Point 3 of McMahon require proof of prejudice or detrimental reliance to establish the common-law doctrine of waiver, they are overruled.
Even though proof of prejudice is irrelevant to establishing a waiver, prejudice often occurs following a waiver. The subsequent prejudice or reliance gives rise to an estoppel:
Generally, the promisor's waiver of a condition is followed by the promisee's substantial change of position. At the very least, the promisee will be induced by the waiver not to perform the condition, if the condition consists of some act or forbearance of the promisee. Thus, if a promisor's duty to convey [property] is conditional on payment by a stated day, the promisor's waiver of the condition may induce the promisee to cease efforts to raise the money and to forbear to pay on the day. Here we have ample reason for an estoppel, or for the enforcement of a promise because of subsequent reliance.
8 Corbin on Contracts § 40.2. See also Restatement (Second) of Contracts § 84, cmt. b (1981) (“ ‘Waiver’ is often inexactly defined as ‘the voluntary relinquishment of a known right.’ When the waiver is reinforced by reliance, enforcement is often said to rest on ‘estoppel.’ ”).
We recognize that, in footnote 11 of Potesta, we specifically disapproved of Syllabus Point 3 of McMahon “to the extent that it refers to both waiver and estoppel[.]” Potesta, 202 W.Va. at 316 n. 11, 504 S.E.2d at 143 n. 11. However, we choose now to specifically overrule the errant language of McMahon as well as that found in Jarvis.
The contract right at issue in this case involves arbitration. Both federal and state laws reflect a strong public policy recognizing arbitration as an expeditious and relatively inexpensive forum for dispute resolution. See Moses H. Cone Mem'l Hosp. v. Mercury Const. Corp., 460 U.S. 1, 24–25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983) (The Federal Arbitration Act, 9 U.S.C. § 2, “is a congressional declaration of a liberal federal policy favoring arbitration agreements, notwithstanding any state substantive or procedural policies to the contrary.”); W.Va.Code § 55–10–2  (acknowledging “a well-established federal policy in favor of arbitral dispute resolution” because arbitration “offers in many instances a more efficient and cost-effective alternative to court litigation.”). Arbitration is also favored because it unburdens crowded court dockets.
Nonetheless, federal and West Virginia courts may refuse to enforce an arbitration agreement “upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2 ; see also W.Va.Code § 55–10–8  (An arbitration agreement “is valid, enforceable and irrevocable except upon a ground that exists at law or in equity for the revocation of a contract.”). We summarized the law in this way:
Under the Federal Arbitration Act, 9 U.S.C. § 2, a written provision to settle by arbitration a controversy arising out of a contract that evidences a transaction affecting interstate commerce is valid, irrevocable, and enforceable, unless the provision is found to be invalid, revocable or unenforceable upon a ground that exists at law or in equity for the revocation of any contract.
Syllabus Point 6, Brown v. Genesis Healthcare Corp., 228 W.Va. 646, 724 S.E.2d 250 (2011). Hence, a state court may assess whether an arbitration agreement is unenforceable under general principles of state law, “such as laches, estoppel, waiver, fraud, duress, or unconscionability.” Syllabus Point 9, Id. (emphasis added). “To be clear, this list is not exclusive. Misrepresentation, duress, mutuality of assent, undue influence, or lack of capacity, if the contract defense exists under general common law principles, then it may be asserted to counter the claim that a ... provision binds the parties. Even lack of consideration is a defense.” Geological Assessment & Leasing v. O'Hara, 236 W.Va. 381, 387, 780 S.E.2d 647, 653 (2015). Congress's goal in enacting the Federal Arbitration Act (“the FAA”) was to place arbitration agreements “upon the same footing as other contracts, where [they] belong.” Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 219, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985) (quoting H.R.Rep. No. 96, 68th Cong., 1st Sess., 1 (1924)). The goal of the FAA “is for an arbitration agreement to be treated by courts like any other contract, nothing more, and nothing less. The FAA has no talismanic effect; it does not elevate arbitration clauses to a level of importance above all other contract terms.” Brown, 228 W.Va. at 671, 724 S.E.2d at 275.
Stated differently, “[t]he FAA recognizes that an agreement to arbitrate is a contract. The rights and liabilities of the parties are controlled by the state law of contracts.” Geological Assessment & Leasing , 236 W.Va. at 386, 780 S.E.2d at 652 ; see also, State ex rel. Barden & Robeson Corp. v. Hill, 208 W.Va. 163, 168, 539 S.E.2d 106, 111 (2000) (“[T]he right to arbitration is purely a matter of contract.”). “Thus, the question of whether there has been waiver in the arbitration agreement context should be analyzed in much the same way as in any other contractual context. The essential question is whether, under the totality of the circumstances, the defaulting party has acted inconsistently with the arbitration right.” Nat'l Found. for Cancer Research v. A.G. Edwards & Sons, Inc., 821 F.2d 772, 774 (D.C.Cir.1987).
Hence, we apply the general state law of contracts pertaining to waiver and reach an ineluctable conclusion: The right to arbitration, like any other contract right, can be waived. To establish waiver of a contractual right to arbitrate, the party asserting waiver must show that the waiving party knew of the right to arbitrate and either expressly waived the right, or, based on the totality of the circumstances, acted inconsistently with the right to arbitrate through acts or language. There is no requirement that the party asserting waiver show prejudice or detrimental reliance. See also, Barden & Robeson Corp., 208 W.Va. at 168, 539 S.E.2d at 111 (“As with any contract right, an arbitration requirement may be waived through the conduct of the parties.”).
Most states, including West Virginia, find that constructive knowledge is sufficient for the waiver of a contractual right, including the right to arbitration. As this Court said in Hoffman, “The essential elements of a waiver, within the definitions already given, are the existence, at the time of the alleged waiver, of a right, advantage, or benefit, the knowledge, actual or constructive, of the existence thereof, and an intention to relinquish such right, advantage, or benefit.” 133 W.Va. at 712–13, 57 S.E.2d at 735 (emphasis added).
Under contract law ... a finding of waiver does not require that the party have actual knowledge of its legal rights [to arbitration]. It is sufficient if the waiving party had “reason to know the essential facts.” Given that the impact of the delay [in turning to litigation before arbitration] is the same regardless of the intent and given that the waiver of the right to arbitrate does not result in the loss of any substantive right, it does not seem unduly onerous to charge the parties to a contractual dispute with constructive knowledge of the terms of the underlying contract.
Thomas J. Lilly, Jr., Participation in Litigation as a Waiver of the Contractual Right to Arbitrate: Toward a Unified Theory, 92 Neb. L. Rev. 86, 122 (2013) ; see generally In re Estate of Cortez , 226 Ariz. 207, 245 P.3d 892, 896–97 (Ct.App.2010) (“[A] majority of courts from other jurisdictions have followed the longstanding rule that constructive knowledge is sufficient for the waiver of a contractual right, such as arbitration. Constructive knowledge ‘refer[s] to knowledge that one using reasonable care or diligence should have, and therefore that is attributed by law to a given person.’ ”); Bros. Jurewicz, Inc. v. Atari, Inc., 296 N.W.2d 422, 429 (Minn.1980) (Defendant had constructive knowledge of arbitration agreement because, “as a matter of law, absent fraud or concealment, a party should be deemed to have knowledge of the terms of agreements that he has executed.”).
The parties in this case dispute what circumstances are required to prove a party waived its contractual right to arbitrate by participating in litigation. To support their analyses, the parties have cited federal and state cases with a broad spectrum of factors and guidelines for courts to consider. These cases “all recognize that under some circumstances participation in litigation can constitute a waiver of the right to arbitrate, but they disagree as to what those circumstances are.” Lilly, 92 Neb. L. Rev. at 102.
The parties cite to a footnote in a recent opinion where we suggested a party must show they were prejudiced by another party's waiver of the contractual right to arbitration. Citing a federal case, we said that to demonstrate waiver of the contractual right to arbitrate, “a party must show: (1) knowledge of an existing right to compel arbitration; (2) acts inconsistent with that existing right; and (3) prejudice to the party opposing arbitration resulting from such inconsistent acts.” Schumacher Homes of Circleville, Inc. v. Spencer, 235 W.Va. 335, 347 n. 12, 774 S.E.2d 1, 13 n. 12 (2015) (quoting U.S. v. Park Place Assocs., Ltd., 563 F.3d 907, 921 (9th Cir.2009) ). By requiring prejudice, however, this footnote is plainly at odds with West Virginia's general law of contracts and we decline to follow it. We do not fault the parties for partly building their arguments upon this footnote, but we caution that this “Court has consistently held that ‘language in a footnote generally should be considered obiter dicta’ and that if this Court is to create a new point of law, it will do ‘so in a syllabus point and not in a footnote.’ ” Valentine v. Sugar Rock, Inc., 234 W.Va. 526, 532, 766 S.E.2d 785, 791 (2014) (quoting State ex rel. Med. Assurance of W.Va., Inc. v. Recht, 213 W.Va. 457, 471, 583 S.E.2d 80, 94 (2003) ).
Unfortunately, most of the cases cited by the parties concern whether, or to what degree, the party resisting arbitration must show prejudice in order to establish that the other party waived its right to arbitrate by participating in litigation. Some cases cited by the parties require no prejudice, while those that do vary as to what degree of prejudice is necessary.
St. Mary's Med. Ctr. of Evansville, Inc. v. Disco Aluminum Prods. Co., 969 F.2d 585, 590 (7th Cir.1992) (“waiver may be found absent a showing of prejudice.”); Nat'l Found. for Cancer Research, 821 F.2d at 777 (“This circuit has never included prejudice as a separate and independent element of the showing necessary to demonstrate waiver of the right to arbitration.”).
Compare Am. Recovery Corp. v. Computerized Thermal Imaging, Inc., 96 F.3d 88, 95 (4th Cir.1996) (imposing a “heavy burden” to prove “actual prejudice”) and Bower v. Inter–Con Sec. Sys., Inc., 232 Cal.App.4th 1035, 181 Cal.Rptr.3d 729, 735 (2014) (“[p]rejudice is a determinative issue”) with Rankin v. Allstate Ins. Co., 336 F.3d 8, 12 (1st Cir.2003) (requiring “a modicum of prejudice to the other side”).
We decline to follow the panoply of approaches cited by the parties because, under West Virginia's long-established law of contracts, courts do not require a showing of prejudice to establish a waiver of contract rights. As we have stated, “[t]he doctrine of waiver focuses on the conduct of the party against whom waiver is sought, and requires that party to have intentionally relinquished a known right. There is no requirement of prejudice or detrimental reliance by the party asserting waiver.” Potesta, 202 W.Va. at 315–16, 504 S.E.2d at 142–43. The cases cited by the parties imply that this Court should alter its general state law of waiver to incorporate a requirement of prejudice when examining arbitration contracts. Federal and state arbitration statutes require courts to assess arbitration contracts on those grounds that exist at law or in equity for the revocation of any contract, not create special rules for the evaluation of arbitration contracts. The general state law of contracts does not require a showing of prejudice to establish a waiver of other contract rights, and so does not require a showing of prejudice for arbitration contracts.
We turn now to the instant case. The undisputed facts are that there is a written arbitration agreement that encompasses the dispute between the parties. While the burden was on the plaintiff to prove the defendant knew of its right to arbitrate, we presume the defendant at least constructively knew because it was both a signatory to the arbitration contract and asserted the arbitration contract in its first court filing. The plaintiff filed his complaint in December 2013, and the defendant's first filing in the circuit court was a motion to dismiss that clearly asserted the arbitration agreement.
There is nothing in the record to suggest the defendant expressly waived its right to arbitrate. The defendant also did not implicitly waive its contractual right to arbitration by answering or responding to the civil complaint without asserting its right.
The question then becomes whether the defendant implicitly waived the right to arbitrate, by acting inconsistently with the right between December 2013 and the filing of the motion to dismiss in July 2014. The delay alone is meaningless; it is the circumstances surrounding the defendant's acts and language that determine whether the defendant implicitly intended to waive the right to arbitrate. The record essentially shows that the defendant asked, three times, for additional time to respond to the plaintiff's complaint. The plaintiff acceded to these requests, even though he was under no obligation to do so. The parties did not comply with Rule 6(b) of the West Virginia Rules of Civil Procedure and file a written stipulation with the circuit court agreeing to an enlargement of the time to respond to the plaintiff's complaint. The defendant made no formal, substantive response to any of the plaintiff's requests. On this record we cannot find any error in the circuit court's conclusion that the defendant acted consistently with the arbitration agreement, and did not participate in the plaintiff's lawsuit prior to July 2014. Viewing the totality of the circumstances, the defendant did not implicitly waive its right to arbitrate through its acts and language.
Rule 6(b) of the Rules of Civil Procedure provides, in pertinent part, that, “[w]hen by these rules ... an act is required or allowed to be done at or within a specified time, all the parties to the action, by written stipulation filed with the court, may agree at any time to a different period[.]”
We find no error in the circuit court's November 14, 2014, order dismissing the plaintiff's complaint and compelling the parties to arbitrate their dispute.
Justice LOUGHRY concurs, in part, and dissents, in part, and reserves the right to file a separate opinion.
Justice BENJAMIN, deeming himself disqualified, did not participate.
LOUGHRY, Justice, concurring, in part, and dissenting, in part:
(Filed May 12, 2016)
I concur in the majority's affirmance of the circuit court's order dismissing the action and compelling arbitration. I dissent to the extent the majority overrules our precedent to pave the path for a new point of law that is contrary, not only to the strong federal policy favoring arbitration, but also to the majority of jurisdictions that require proof of prejudice before a waiver of arbitration rights will be found.
Our common law demonstrates that general contract defenses, such as waiver, “may be applied to invalidate an arbitration agreement.” Syl. Pt. 9, in part, Brown ex rel. Brown v. Genesis Healthcare Corp., 228 W.Va. 646, 724 S.E.2d 250 (2011), rev'd on other grounds by Marmet Health Care Ctr., Inc. v. Brown, ––– U.S. ––––, 132 S.Ct. 1201, 182 L.Ed.2d 42 (2012). A review of our law regarding waiver of contract rights reveals that more than thirty-five years ago, in Mundy v. Arcuri, 165 W.Va. 128, 267 S.E.2d 454 (1980), a case involving a conditional sales contract involving the purchase of real estate, the Court explained that
in order to support estoppel or waiver, a party must have been induced to rely on certain facts, and must have done so to his detriment. Nisbet v. Watson , 251 S.E.2d 774 (W.Va.1979), Syllabus Point 3; Humble Oil & Refining Co. v. Lane, 152 W.Va. 578, 165 S.E.2d 379 (1969) ; Helmick v. Broll, 150 W.Va. 285, 144 S.E.2d 779 (1965), Syllabus Point 2[.]
Mundy, 165 W.Va. at 131, 267 S.E.2d at 456–57. A few years later, this Court relied on Mundy when it ruled that “[d]etrimental reliance is essential to the assertion of waiver or estoppel.” Syl. Pt. 3, National Mut. Ins. Co. v. McMahon & Sons, Inc., 177 W.Va. 734, 356 S.E.2d 488 (1987). While the Court would later “disapprove” of this point of law in a footnote in Potesta v. U.S. Fidelity & Guar. Co., 202 W.Va. 308, 316 n. 11, 504 S.E.2d 135, 143 n. 11 (1998), importantly, the Court did not expressly overrule syllabus point three of National Mutual through a new syllabus point in Potesta. In fact, as the majority accurately explains in its footnote six in the instant matter, “[t]his Court has consistently held ... that ‘language in a footnote generally should be considered obiter dicta’ and that if this Court is to create a new point of law, it will do ‘so in a syllabus point and not in a footnote.’ State ex rel. Med. Assurance of West Virginia, Inc. v. Recht, 213 W.Va. 457, 471, 583 S.E.2d 80, 94 (2003).” Valentine v. Sugar Rock, Inc., 234 W.Va. 526, 532, 766 S.E.2d 785, 791 (2014) ; see also Syl. Pt. 2, in part, Walker v. Doe, 210 W.Va. 490, 558 S.E.2d 290 (2001) (“[N]ew points of law ... will be articulated through syllabus points as required by our state constitution.”), overruled on other grounds by State v. McKinley, 234 W.Va. 143, 764 S.E.2d 303 (2014).
The denial of liability under a policy of insurance on one or more grounds at a time when insurer has knowledge of other grounds of forfeiture, does not result in a waiver or estoppel as to such other grounds, where no prejudice results to the insured from reliance on the initial statement of the insurer.
Potesta, 202 W.Va. at 315, 504 S.E.2d at 142. Instead, the Court in Potesta undertook to distinguish the terms waiver and estoppel, setting forth a string cite of cases from other states as supportive of its conclusion that the differences between these two terms demonstrate why prejudice must be demonstrated for estoppel but not for waiver. Potesta, 202 W.Va. at 317–18, 504 S.E.2d at 144–45. The majority relies upon Potesta in this regard to overrule our common law that required a showing of prejudice before the waiver of a contractual right would be found. However, the majority fails to recognize that the law in those same states listed in the Potesta string cite either require the party opposing arbitration to show prejudice before a court will find that the right to arbitrate has been waived, or at least consider prejudice to be an important factor in the waiver analysis.
“Prejudice” is defined as “[d]amage or detriment to one's legal rights or claims.” Black's Law Dictionary 1370 (10th ed.2014).
See County of Hawai'i v. Unidev, LLC, 128 Hawai'i 378, 289 P.3d 1014 (Ct.App.2012), vacated, in part, on other grounds by County of Hawai'i v. Unidev, LLC, 129 Hawai'i 378, 301 P.3d 588 (2013) (finding no waiver of right to arbitration where plaintiff had not met its burden of showing prejudice had resulted from defendant's acts allegedly inconsistent with right to arbitrate); Abramson v. Wildman, 184 Md.App. 189, 964 A.2d 703, 709 (2009) (internal citation omitted) (“ ‘Delay in attempting to compel arbitration, by itself, may not be conclusive, although coupled with prejudice to the other party can support a finding of waiver.’ ”); Carpenter v. Pomerantz, 36 Mass.App.Ct. 627, 634 N.E.2d 587, 591 (1994) (finding that “any delay by the defendant in exercising his right to demand arbitration has not been shown to be due to reasons which were inconsistent with that right” and “[b]ecause the defendant took no action inconsistent with his right to demand arbitration, the plaintiff cannot show any prejudice on account of such actions”); Boogher v. Stifel, Nicolaus & Co., Inc., 825 S.W.2d 27, 30 (Mo.Ct.App.1992) (internal citation omitted) (“Any doubts about an allegation of waiver, delay, or a like defense to arbitrability should be resolved in favor of arbitration.... The party claiming waiver has a heavy burden, and a court will find waiver when the party seeking arbitration substantially invokes the judicial process to the detriment or prejudice of the other party.”); Cole v. Jersey City Med. Ctr., 215 N.J. 265, 72 A.3d 224, 233 (2013) (finding that assessment of whether party to arbitration agreement has waived that remedy must focus on totality of circumstances, including whether party's litigation conduct resulted in prejudice to other party); Cusimano v. Schnurr, 26 N.Y.3d 391, 23 N.Y.S.3d 137, 44 N.E.3d 212, 218 (2015) (“Generally, when addressing waiver, courts should consider the amount of litigation that has occurred, the length of time between the start of the litigation and the arbitration request, and whether prejudice has been established”); David v. Merrill Lynch, Pierce, Fenner and Smith, Inc., 440 N.W.2d 269, 274 (N.D.1989) (internal citation omitted) (“Under the Federal policy favoring arbitration, a party does not automatically waive arbitration merely by engaging in pleading and discovery activities. More is required than action inconsistent with the arbitration provision; prejudice to the party opposing arbitration must also be shown.”).
As we previously explained,
[a] state statute, rule, or common-law doctrine, which targets arbitration provisions for disfavored treatment and which is not usually applied to other types of contract provisions, stands as an obstacle to the accomplishment and execution of the
purposes and objectives of the Federal Arbitration Act, 9 U.S.C. § 2, and is preempted.
Syl. Pt. 8, Brown, 228 W.Va. at 657, 724 S.E.2d at 261. I believe that, at best, Potesta created confusion in our common law. Yet, instead of relying upon the common law expressed in National Mutual and Jarvis, the majority elects to rely upon dicta and a footnote in Potesta to overrule those cases and create new points of law that may serve to facilitate the waiver of arbitration rights in the future.
A survey of our law reveals that a showing of detriment or prejudice has also been required or considered in various non-contractual situations before a waiver of some right will be found. See West Virginia Bd. of Educ. v. Marple, 236 W.Va. 654, 783 S.E.2d 75 (2015) (emphasis added) (citations omitted) (“The defense of qualified immunity ‘is not waived if the defendant “raised the issue at a pragmatically sufficient time, and [the plaintiff] was not prejudiced in its ability to respond.” ... Rather, we look at the overall context of the litigation and have found no waiver where no evidence of prejudice exists and sufficient time to respond to the defense remains before trial.’ ”); Lowndes Bank v. MLM Corp., 183 W.Va. 339, 349, 395 S.E.2d 762, 772 (1990) (emphasis added) (“[T]echnical defects in the service of process are waived unless the party improperly served can show prejudice. ”); Johnson v. State Dept. of Motor Vehicles, 173 W.Va. 565, 318 S.E.2d 616 (1984) (noting that motorist had waived argument that Commissioner unduly delayed proceeding by failing to object to continuances and finding lower court was without authority to reverse license suspension on basis of delay where motorist was not prejudiced by delay in proceedings); Syl. Pt. 1, State ex rel. Heck's Discount Centers, Inc. v. Winters, 147 W.Va. 861, 132 S.E.2d 374 (1963) (emphasis added) (“A mere question of misjoinder of parties or of causes of action in a proceeding in prohibition, no possible prejudice appearing therefrom, will be treated as waived in the absence of objection by any party to such proceeding.”).
Cf. Earl T. Browder, Inc. v. Cnty. Ct. of Webster Cnty., 143 W.Va. 406, 412, 102 S.E.2d 425, 430 (1958) (addressing parties' contract that provided for arbitration as condition precedent to right of either party to sue; finding that by ignoring plaintiff's demand for arbitration, defendant had refused demand and waived its right to require arbitration; and concluding that such waiver could not be used to plaintiff's detriment).
Under the majority's new syllabus point six, if a party engages in acts inconsistent with its contractual right to arbitration, a court will be able to find a waiver of the right to arbitrate notwithstanding the absence of any detriment or prejudice to the party opposing arbitration. Clearly, this new point of law runs afoul of the majority of other jurisdictions that either require a showing of prejudice, or at least consider it a significant factor in determining whether a party has waived the right to arbitrate. The federal circuit courts of appeal are in agreement. In fact, of the twelve regional circuit courts, ten require a showing of prejudice before a waiver of the right to arbitrate will be found, while the other two circuits consider prejudice to be a relevant factor for consideration.
See Aurora Healthcare, Inc. v. Ramsey, 83 So.3d 495, 500 (Ala.2011) (citations omitted) (“[T]he party opposing arbitration must demonstrate both (1) that the party seeking arbitration has substantially invoked the litigation process, bespeaking an intent to abandon arbitration in favor of the judicial process, and (2) that the party opposing arbitration would be ‘substantially prejudiced’ by an order requiring it to submit to arbitration.... Because there is a strong federal policy favoring arbitration, waiver of the right to compel arbitration is not lightly inferred, and the party seeking to prove waiver has a ‘heavy burden.’ ”); Augusta v. Keehn & Assoc's, 193 Cal.App.4th 331, 123 Cal.Rptr.3d 595, 603 (2011) (internal citations omitted) (“Despite the delay in seeking arbitration and lack of intent to arbitrate, the conduct of the party demanding arbitration must have prejudiced the opposing party.... ‘The moving party's mere participation in litigation is not enough; the party who seeks to establish waiver must show that some prejudice has resulted from the other party's delay in seeking arbitration.’ ”); MSO, LLC v. DeSimone, 313 Conn. 54, 94 A.3d 1189, 1198 (2014) (“Consistent with our prior case law, we hold that a party opposing arbitration on the ground of waiver must demonstrate that it will be prejudiced by enforcement of the arbitration clause. In so holding, we reaffirm the waiver standard that has developed through our common law. We further recognize that our prejudice requirement is consistent with the majority of federal circuit courts which similarly require prejudice to the party opposing arbitration on the grounds of waiver.”); Simpson v. Pep Boys–Manny Moe & Jack, Inc., 847 So.2d 617, 621 (La.Ct.App.2003) (“The burden of proof to establish waiver of arbitration is heavy, and the party seeking to establish waiver must show that it has been prejudiced by the actions of the party requesting arbitration.”); Lovelace Farms, Inc. v. Marshall, 442 S.W.3d 202, 207 (Mo.Ct.App.2014) (citations omitted) (“Both Missouri and federal courts use the same three-factor test to establish waiver of the right to arbitrate. The party seeking to establish waiver bears the burden of demonstrating that the alleged waiving party: ‘(1) had knowledge of the existing right to arbitrate; (2) acted inconsistently with that existing right; and (3) prejudiced the party opposing arbitration by such inconsistent acts.’ ”); Culberson v. REO Properties Corp., 194 N.C.App. 793, 670 S.E.2d 316, 320 (2009) (“ ‘[A] party has impliedly waived its contractual right to arbitration if by its delay or by actions it takes which are inconsistent with arbitration, another party to the contract is prejudiced by the order compelling arbitration.’ Prime South Homes v. Byrd, 102 N.C.App. 255, 401 S.E.2d 822, 825 (1991) (citation omitted).”); Deloitte & Touche, LLP v. Unisys Corp., 358 S.C. 179, 594 S.E.2d 523, 525 (Ct.App.2004) (explaining that to “[t]o establish that there has been a waiver, a party must show it has been unduly burdened by the other party's delay in seeking arbitration.”).
See FPE Found. v. Cohen, 801 F.3d 25, 31 (1st Cir.2015) (citation omitted) (“As we have consistently said, ‘prejudice is essential for a [finding of] waiver’ ”); Technology in Partnership, Inc. v. Rudin, 538 Fed.App'x. 38, 39 (2nd Cir.2013) (internal citations omitted) (“ ‘The key to a waiver analysis is prejudice.’ ”); In re Pharmacy Ben. Managers Antitrust Litig. , 700 F.3d 109, 117 (3rd Cir.2012) (citation omitted) (“ ‘[P]rejudice is the touchstone for determining whether the right to arbitrate has been waived by litigation conduct.’ ”); Wheeling Hosp., Inc. v. Health Plan of the Upper Ohio Valley, Inc., 683 F.3d 577, 587 (4th Cir.2012) (citation omitted) (emphasis in original) (“ ‘[E]ven in cases where the party seeking arbitration has invoked the “litigation machinery” to some degree, “the dispositive question is whether the party objecting to arbitration has suffered actual prejudice .” ’ ”); Al Rushaid v. Nat'l Oilwell Varco, Inc., 757 F.3d 416, 421 (5th Cir.2014) (citations omitted) (“[A] party waives its right to arbitrate if it (1) ‘substantially invokes the judicial process' and (2) thereby causes ‘detriment or prejudice’ to the other party.”); Art Shy v. Navistar Int'l Corp., 781 F.3d 820, 827–28 (6th Cir.2015) (citation omitted) (finding that party will not be found to have waived arbitration unless it acts in manner inconsistent with arbitration agreement or delays asserting arbitration to actual prejudice of opposing party and emphasizing that “[b]oth inconsistency and actual prejudice are required”); Cooper v. Asset Acceptance, LLC, 532 Fed.Appx. 639, 641 (7th Cir.2013) (citations omitted) (explaining that court focuses on several factors in determining whether right to arbitrate has been waived, including “the degree of prejudice that would be suffered by the party against whom arbitration has been invoked.”); Kelly v. Golden, 352 F.3d 344, 349 (8th Cir.2003) (explaining that party's acts inconsistent with right to arbitrate “must result in prejudice to the other party for waiver to have occurred”); Samson v. NAMA Holdings, LLC, 637 F.3d 915, 934 (9th Cir.2010) (citation omitted) (“A party seeking to prove waiver of the right to arbitrate must show: ‘(1) knowledge of an existing right to compel arbitration; (2) acts inconsistent with that existing right; and (3) prejudice to the party opposing arbitration from such inconsistent acts.’ ”); In re Cox Enterprises, Inc., 790 F.3d 1112, 1116 (10th Cir.2015) (citation omitted) (explaining that circuit had adopted a six-factor test to determine if the right to arbitrate has been waived, including “ ‘(6) whether the delay affected, misled, or prejudiced the opposing party.’ ”); Grigsby & Assoc's, Inc. v. M Securities Inv., 635 Fed.Appx. 728, 731 (11th Cir.2015) (“ ‘A party has waived its right to arbitrate if, under the totality of the circumstances, the party has acted inconsistently with the arbitration right and, in so acting, has in some way prejudiced the other party.’ S & H Contractors, Inc. v. A.J. Taft Coal Co., 906 F.2d 1507, 1514 (11th Cir.1990).”); Khan v. Parsons Global Servs., Ltd., 521 F.3d 421, 428 (D.C.Cir.2008) (noting that finding of prejudice unnecessary to conclude that right to compel arbitration has been waived but then basing determination of waiver by primarily considering whether defendant had invited court to consider merits of plaintiff's claims and whether plaintiff had suffered prejudice as result of defendant's actions).
In support of its decision to overrule National Mutual and Jarvis —to the extent each required proof of prejudice or detrimental reliance to establish a waiver of contractual rights—the majority distinguishes waiver and estoppel. However, the cases relied upon by the majority in support of its analysis, including a 1944 Delaware decision, a 1979 Illinois decision, a 1915 Oklahoma decision, and a 1912 Texas decision, are all equally unavailing in terms of a waiver of arbitration rights. Indeed, more recent jurisprudence in those same states requires that prejudice be shown before a waiver of arbitration rights will be found. See LAS, Inc. v. Mini–Tankers, USA, Inc., 342 Ill.App.3d 997, 277 Ill.Dec. 547, 796 N.E.2d 633, 638 (2003) (“A waiver of the right to arbitrate may not be found in the absence of prejudice to the party opposing arbitration.”); Action Drug Co. v. R. Baylin Co., No. 9383, 1989 WL 69394, *5 (Del.Ch. June 19, 1989) (citation omitted) (explaining that “a party will be found to have waived its right to arbitration where it has substantially invoked the judicial process to the detriment of the other party” and concluding that Baylin had “not satisfied its heavy burden of establishing that it was prejudiced by Action's allegedly tardy effort to compel arbitration.”); Northland Ins. Co. v. Kellogg, 897 P.2d 1161, 1162 (Okla.Civ.App.1995) (internal citations omitted) (“While no uniform test has been formulated for the determination of waiver, there is a six-factor test that essentially encompasses the various tests adopted in most jurisdictions. Those factors are ... (6) whether the opposing party has been prejudiced by the delay. The prejudice must be the result of delay in asserting the right to arbitrate—not from prejudice or acts inherent in the arbitration process.”); Hogg v. Lynch, Chappell & Alsup, P.C., 480 S.W.3d 767, 791 (Tex.App.2015) (explaining that “[i]n order to establish that a party has waived its right to arbitration, we must conclude not only that the party has substantially invoked the judicial process, but also that the party opposing arbitration has been prejudiced by the moving party's delay in moving to compel arbitration.”).
Nathan Miller, Inc. v. N. Ins. Co. of New York, 39 A.2d 23 (Del.Super.1944).
Given the strong federal policy favoring arbitration, I would reaffirm our existing common law in National Mutual and Jarvis that required a showing of detriment or prejudice before the waiver of a contract right could be found. Certainly, there are sound reasons for requiring a party to show prejudice or detriment before a court will find a waiver of the right to arbitrate. As one court explained, “ ‘ “here is an overriding federal policy favoring arbitration[,]” ’ ” which is a “speedy and relatively inexpensive means of dispute resolution[;]” therefore, waiver of the right to arbitrate requires prejudice, which “ ‘typically is found only where the petitioning party's conduct has substantially undermined this important public policy or substantially impaired the other side's ability to take advantage of the benefits and efficiencies of arbitration.’ ” Adolph v. Coastal Auto Sales, Inc., 184 Cal.App.4th 1443, 110 Cal.Rptr.3d 104, 110 (2010) (citations omitted); see also Carteret Cty. v. United Contractors of Kinston, Inc., 120 N.C.App. 336, 462 S.E.2d 816, 821 (1995) (noting strong public policy favoring arbitration and observing that “[b]efore a party will be found to have impliedly waived a contractual right to arbitration, that party must have, by its delay or actions inconsistent with arbitration, caused another party to be prejudiced by an order compelling arbitration.”); Board of Educ. Taos Mun. Schools v. The Architects, Taos, 103 N.M. 462, 709 P.2d 184, 185 (1985) (stating that three principles guide court's consideration of whether right to arbitrate has been waived and observing that second principle that “relief will only be granted upon a showing of prejudice to the party opposing arbitration” flows from first principle of “strong policy preference for arbitration as a more efficient mode of resolving disputes than litigation”). Recently, I cautioned the majority of this Court in another arbitration matter with a reminder that
Even states whose common law does not require a showing of prejudice to find a waiver of contractual rights have determined that prejudice is required for a waiver of arbitration rights. For example, in Perry Homes v. Cull, 258 S.W.3d 580 (Tex.2008), the defendants asked the court to reconsider it prior decisions that found “prejudice [to be] a necessary requirement of waiver by litigation conduct.” Id. at 593–94. The defendants argued that because Texas law “does not require a showing of prejudice for waiver, but only an intentional relinquishment of a known right[,]” the court could not “impose a waiver rule for arbitration contracts that does not apply to all others.” Id. at 594. In addressing this argument, the Supreme Court of Texas explained:
Under Texas law, waiver may not include a prejudice requirement, but estoppel does. In cases of waiver by litigation conduct, the precise question is not so much when waiver occurs as when a party can no longer take it back. As noted above, Texas estoppel law does not allow a party to withdraw a representation once the other party takes “action or forbearance of a definite and substantial character.” Using precisely the same terms, the Restatement does not allow a party to withdraw an option contract when the offeree has taken substantial action based upon it. In these contexts, prejudice is an element of the normal contract rules.
Thus, we agree with the courts below that waiver of arbitration requires a showing of prejudice.
Id. at 595 (footnotes and internal citations omitted).
[t]his Court has been notoriously chastised by the United States Supreme Court for its failure to ... ensure that [ ] [arbitration] agreements are not “singled out” for hostile treatment or disfavor. See Marmet Health Care Center v. Brown, ––– U.S. ––––, 132 S.Ct. 1201, 182 L.Ed.2d 42 (2012). The majority's opinion does little to convey that the United States Supreme Court's message was received[.]
Schumacher Homes of Circleville, Inc. v. Spencer, 235 W.Va. 335, 353, 774 S.E.2d 1, 19 (2015) (Loughry, J., dissenting). Because I believe that our common law would have allowed this Court to align itself with the majority of other jurisdictions on this issue, I cannot support the majority's new points of law to the extent that they expressly reject requiring a party asserting a waiver of arbitration to demonstrate prejudice. As this Court held long ago, “[t]he law favors arbitrations and every reasonable intendment will be indulged in support of them[.]” Syl. Pt. 1, in part, Mutual Imp. Co. v. Merchants' & Business Men's Mut. Fire Ins. Co., 112 W.Va. 291, 164 S.E. 256 (1932).
The majority opinion in Schumacher was recently vacated by the United States Supreme Court in Schumacher Homes of Circleville, Inc. v. Spencer, ––– U.S. ––––, 136 S.Ct. 1157, 194 L.Ed.2d 164 (2016). The Supreme Court has remanded Schumacher for our further consideration in light of DIRECTV, Inc. v. Imburgia, 577 U.S. ––––, 136 S.Ct. 463, 193 L.Ed.2d 365 (2015), which we will undertake later this term of court.
For these reasons, I respectfully concur, in part, and dissent, in part.