                                                     132 Net, Advance Opinion 2.
                         IN THE SUPREME COURT OF THE STATE OF NEVADA


                  PRINCIPAL INVESTMENTS, INC.,                        No. 59837
                  D/B/A RAPID CASH; GRANITE
                  FINANCIAL SERVICES, INC., D/B/A
                  RAPID CASH; FMMR INVESTMENTS,
                  INC., D/B/A RAPID CASH; PRIME
                                                                            FILE
                  GROUP, INC., D/B/A RAPID CASH;                             JAN 1 4 2016
                  AND ADVANCE GROUP, INC., D/B/A                          TRA 1E K. LINDEMAN
                                                                        CLERK F UP E
                  RAPID CASH,                                          BY          I         AP
                  Appellants,                                               C 1E       bEi    CL


                  vs.
                  CASSANDRA HARRISON;
                  CONCEPCION QUINTINO; AND MARY
                  DUNGAN, INDIVIDUALLY AND ON
                  BEHALF OF ALL PERSONS
                  SIMILARLY SITUATED,
                  Respondents.



                             Appeal from a district court order denying a motion to compel
                  arbitration. Eighth Judicial District Court, Clark County; Elizabeth Goff
                  Gonzalez, Judge.
                             Affirmed.


                  Lewis Roca Rothgerber, LLP, and Daniel F. Polsenberg, Joel D. Henriod,
                  and Ryan T. O'Malley, Las Vegas; Gordon Silver and Mark S. Dzarnoski
                  and William M. Noall, Las Vegas,
                  for Appellants.

                  Kemp, Jones & Coulthard, LLP, and J. Randall Jones, Jennifer C. Dorsey,
                  and Carl L. Harris, Las Vegas; Legal Aid Center of Southern Nevada, Inc.,
                  and Dan L. Wulz, Venicia Considine, and Sophia A. Medina, Las Vegas,
                  for Respondents.



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                 BEFORE THE COURT EN BANC.'

                                                  OPINION
                 By the Court, PICKERING, J.:
                             This is an appeal from an order denying a motion to compel
                 arbitration. The district court held that the moving party waived its right
                 to arbitrate by litigating collection claims against its borrowers to default
                 judgment in justice court. We must decide whether the district court erred
                 in addressing waiver, instead of referring the question to the arbitrator.
                 We hold that litigation-conduct waiver is presumptively for the court to
                 decide, unless the arbitration agreement clearly commits the question to
                 the arbitrator, which the agreements here do not. On the merits, we
                 uphold the district court's finding of waiver and therefore affirm
                                                       I.
                                                      A.
                             Appellant Rapid Cash is a payday loan company that provided
                 short-term, high-interest loans to the named plaintiffs Mary Dungan,
                 Cassandra Harrison, and Concepcion Quintino, among others. 2 The
                 named plaintiffs and other borrowers did not repay their loans, prompting
                 Rapid Cash, over a seven-year period, to file more than 16,000 individual
                 collection actions in justice court in Clark County, Nevada. Rapid Cash
                 hired Maurice Carroll, d/b/a On-Scene Mediations, as its process server.
                 Relying on On-Scene's affidavits of service, Rapid Cash secured thousands


                       'The Honorable Ron D. Parrag -uirre, Chief Justice, voluntarily
                 recused himself from participation in the decision of this matter.

                       We refer to appellants collectively as "Rapid Cash," the name by
                       2
                 which they are all alleged to do business.

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                  of default judgments against the named plaintiffs and other borrowers
                  who failed to appear and defend the collection lawsuits.
                              At some point, a justice of the peace noticed that On-Scene's
                  affidavits attested to an improbably high number of same-day receipts and
                  service of process, and initiated an investigation. The investigation
                  revealed that Carroll and On-Scene had engaged in "sewer service"—the
                  practice of accepting summonses and complaints for service, failing to
                  serve them, then falsely swearing in court-filed affidavits that service had
                  been made when it was not. Carroll and On-Scene were cited for serving
                  process without a license, and a cease and desist order was entered
                  against them. Ultimately, Carroll was charged with and convicted of 17
                  counts of forgery and offering false instruments.
                              Carroll's criminal convictions involved false affidavits of
                  service for clients other than Rapid Cash. Nonetheless, Carroll and On-
                  Scene were Rapid Cash's exclusive agent for service of process in southern
                  Nevada, and the named plaintiffs sued Rapid Cash, On-Scene, and others
                  in district court, alleging that Rapid Cash improperly obtained its default
                  judgments against them and other similarly situated borrowers without
                  their knowledge via On-Scene's "sewer service." The first amended
                  complaint is styled as a class action and asserts claims for fraud upon the
                  court, abuse of process, negligent hiring/supervision/retention, negligence,
                  civil conspiracy, and violation of Nevada's fair debt collection laws. The
                  relief requested includes declaratory relief deeming the justice court
                  default judgments void and uncollectable; injunctive relief; disgorgement,
                  restitution, or a constructive trust for funds already collected; forfeiture by
                  Rapid Cash of all loan amounts; return of all principal, interest, charges,
                  or fees associated with the loans; punitive damages and statutory

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                penalties; and attorney fees and costs. The first amended complaint
                disavows claims for individual tort or consequential damages, stating:
                            This Class action does not seek to, nor will it,
                            actually litigate any additional claims for
                            compensatory damage, which may include but not
                            be limited to damage to credit reputation, fear,
                            anxiety, mental and emotional distress, nor
                            damages arising from wrongful garnishment or
                            attachment, such as bank fees, bounced check
                            fees, finance charges or interest on bills which
                            would have otherwise been paid, and the like.
                                                     B.
                            Rapid Cash moved to compel arbitration based on the
                arbitration provisions in its loan agreements, which take one of two forms,
                depending on the date of the loan. The Dungan/Harrison form of
                agreement provides that either party may elect binding arbitration of any
                "Claim," and broadly defines "Claim" as follows:
                                   2. DEFINITION OF "CLAIM." The term
                            "Claim" means any claim, dispute or controversy
                            between you and us (including "related parties"
                            identified below) that arises from or relates in any
                            way to Services you request or we provide, now, in
                            the past or in the future; the Application (or any
                            prior or future application); any agreement
                            relating to Services ("Services Agreement"); any of
                            our marketing, advertising, solicitations and
                            conduct relating to your request for Services; our
                            collection of any amounts you owe; our disclosure
                            of or failure to protect any information about you;
                            or the validity, enforceability or scope of this
                            Arbitration Provision. "Claim" is to be given the
                            broadest possible meaning and includes claims of
                            every kind and nature, including but not limited
                            to, initial claims, counterclaims, cross-claims and
                            third-party claims, and claims based on any
                            constitution, statute, regulation, ordinance,
                            common law rule (including rules relating to
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                               contracts, negligence, fraud or other intentional
                               wrongs) and equity. It includes disputes that seek
                               relief of any type, including damages and/or
                               injunctive, declaratory or other equitable relief.
                   The Dungan/Harrison form of agreement specifies that litigating one claim
                   does not waive arbitration as to other claims:
                               Even if all parties have elected to litigate a Claim
                               in court, you or we may elect arbitration with
                               respect to any Claim made by a new party or any
                               new Claim asserted in that lawsuit, and nothing
                               in that litigation shall constitute a waiver of any
                               rights under this Arbitration Provision.
                               Quintino's form of agreement differs.            It includes a
                   preliminary "Mediation Agreement," requiring that before either party
                   proceeds with arbitration or litigation, the party must submit all
                   "Claims . . . to neutral, individual (and not class) mediation." If mediation
                   does not resolve the dispute, then the "Arbitration Agreement" controls:
                               If you and we are not able to resolve a Claim in
                               mediation, then you and we agree that such Claim
                               will be resolved by neutral, binding individual
                               (and not class) arbitration. You and we may not
                               initiate arbitration proceedings without first
                               complying with the Mediation Agreement.
                   The Quintino form of agreement also defines "Claims" broadly:
                               "Claims" means any and all claims, disputes or
                               controversies that arise under common law,
                               federal or state statute or regulation, or otherwise,
                               and that we or our servicers or agents have
                               against you or that you have against us, our
                               servicers, agents, directors, officers and
                               employees. "Claims" also includes any and all
                               claims that arise out of (i) the validity, scope
                               and/or applicability of this Mediation Agreement
                               or the Arbitration Agreement appearing below,
                               (ii) your application for a Loan, (iii) the
                               Agreement, (iv) any prior agreement between you
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                             and us, including any prior loans we have made to
                             you[,] or (v) our collection of any Loan. "Claims"
                             also includes all claims asserted as a
                             representative, private attorney general, member
                             of a class or in any other representative capacity,
                             and all counterclaims, cross-claims and third
                             party claims.
                 The Quintino agreement specifies that either party may "bring a Claim in
                 a small claims or the proper Las Vegas Justice Court, as long as the Claim
                 is within the jurisdictional limits of that court," without submitting the
                 claim to mediation or arbitration, but that "[a] 1l Claims that cannot be
                 brought in small claims court or Las Vegas Justice Court . .. must be
                 resolved consistent with. . . the Arbitration Agreement."
                             Both forms of agreement state that they are "made pursuant
                 to a transaction involving interstate commerce" and shall "be governed by
                 the Federal Arbitration Act, 9 U.S.C. Sections 1-16, as amended," or the
                 "FAA." They also include class-action and class-arbitration waivers.
                             The district court denied Rapid Cash's motions to compel
                 arbitration of the claims asserted in the original and first amended
                 complaints. It held that Rapid Cash waived its right to an arbitral forum
                 by bringing collection actions in justice court, employing Carroll and On-
                 Scene as its agent for service of process, and obtaining default judgments
                 allegedly based on On-Scene's falsified affidavits of service. Rapid Cash
                 appeals. We have jurisdiction under NRS 38.247(1)(a) and 9 U.S.C. §
                 16(a)(1)(B) (2012), which allow interlocutory appeals from orders denying
                 motions to compel arbitration, and affirm.


                                                      A.
                             As the loan documents stipulate, the arbitration agreements
                 evidence transactions involving commerce, so the Federal Arbitration Act
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                (FAA) applies. See Tallman v. Eighth Judicial Dist. Court, 131 Nev., Adv.
                Op. 71, 359 P.3d 113, 121-22 (2015). Under the FAA, arbitration
                agreements "shall be valid, irrevocable, and enforceable, save upon such
                grounds as exist at law or in equity for the revocation of any contract." 9
                U.S.C. § 2 This provision expresses "both a liberal federal policy favoring
                arbitration, and the fundamental principle that arbitration is a matter of
                contract." 3 AT&T Mobility LLC v. Concepcion,    563 U.S. 333, 339 (2011)
                (quotations and internal citations omitted). Because arbitration is
                fundamentally a matter of contract, "[w]hether enforcing an agreement to
                arbitrate or construing an arbitration clause, courts and arbitrators must
                'give effect to the contractual rights and expectations of the parties."
                Stolt-Nielsen S.A. v. AnimalFeeds Intl Corp.,    559 U.S. 662, 682 (2010)
                (quoting Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Junior
                Univ., 489 U.S. 468, 479 (1989)).
                            The right to enforce an agreement to arbitrate, like any
                contract right, can be waived. But the FAA "establishes that, as a matter
                of federal law, any doubts concerning the scope of arbitrable issues should
                be resolved in favor of arbitration, whether the problem at hand is the
                construction of the contract language itself or an allegation of waiver,
                delay, or a like defense to arbitrability." Moses H. Cone Mena Hosp. v.


                      3 Nevada has adopted the Uniform Arbitration Act of 2000 (UAA), see
                NRS 38.206, which expresses Nevada's similarly fundamental policy
                favoring the enforceability of arbitration agreements as written. See NRS
                38.219(1); Tallman, 131 Nev., Adv. Op. 71, 359 P.3d at 119 ("As a matter
                of public policy, Nevada courts encourage arbitration and liberally
                construe arbitration clauses in favor of granting arbitration." (quoting
                State ex rel. Masto v. Second Judicial Dist. Court, 125 Nev. 37, 44, 199
                P.3d 828, 832 (2009))).

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                Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983). Given the "strong
                presumption in favor of arbitration[J . . . waiver of the right to arbitration
                is not to be lightly inferred."    Coca-Cola Bottling Co. v. Soft Drink &
                Brewery Workers Union Local 812, 242 F.3d 52, 57 (2d Cir. 2001) (internal
                quotations omitted); accord Tallman, 131 Nev., Adv. Op. 71, 359 P.3d at
                123 (quoting Clark Cty. v. Blanchard Constr. Co., 98 Nev. 488, 491, 653
                P.2d 1217, 1219 (1982)). Under the FAA, "any doubts concerning whether
                there has been a waiver are resolved in favor of arbitration."            Louis
                Dreyfus Negoce S.A. v. Blystad Shipping & Trading Inc., 252 F.3d 218, 229
                (2d Cir. 2001) (quoting Leadertex, Inc. v. Morganton Dyeing & Finishing
                Corp., 67 F.3d 20, 25 (2d Cir. 1995)).
                                                         B.
                             We must decide whether Rapid Cash waived its right to
                arbitrate the named plaintiffs' equitable, common-law and statutory
                claims against them by its litigation activities in justice court. Before we
                can do so, we must address the threshold issue of who decides the question
                of waiver-by-litigation-conduct—the court or the arbitrator? The answer
                depends on presumptions the Supreme Court has developed to guide
                division-of-labor determinations under the FAA and the text of the
                arbitration agreements themselves.            See BG Grp. PLC v. Republic of
                Argentina, 572 U.S. „ 134 S. Ct. 1198, 1206-07 (2014) (stating that
                since arbitration is a matter of contract, "it is up to the parties to
                determine whether a particular matter is primarily for arbitrators or for
                courts to decide. . . . If the contract is silent on the matter of who primarily
                is to decide 'threshold' questions about arbitration, courts determine the
                parties' intent with the help of presumptions."); First Options of Chi., Inc.
                v. Kaplan, 514 U.S. 938, 944-45 (1995).

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                             Despite the FAA's robust pro-arbitration presumption, Moses
                 H. Cone, 460 U.S. at 24-25, the Supreme Court has instructed that certain
                 issues—the kind that "contracting parties would likely have expected a
                 court to have decided"—are presumptively for the court, not the arbitrator,
                 to resolve. Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83 (2002).
                 These court-committed issues involve gateway questions of arbitrability,
                 "such as 'whether the parties are bound by a given arbitration clause,' or
                 'whether an arbitration clause in a concededly binding contract applies to
                 a particular type of controversy." BG Grp., 572 U.S. at , 134 S. Ct. at
                 1206 (quoting Howsam, 537 U.S. at 84). Because "courts presume that the
                 parties intend courts, not arbitrators, to decide [gateway questions ofl
                 arbitrability," id., these gateway questions are for the court to decide,
                 unless the parties' agreement (or, possibly, conduct) provides "clear and
                 unmistakable evidence" that they intended to commit the questions to the
                 arbitrator in the first instance.   First Options, 514 U.S. at 944 (internal
                 quotation omitted). But the Supreme Court applies an exactly opposite set
                 of rules to procedural gateway matters: "On the other hand, courts
                 presume that the parties intend arbitrators, not courts, to decide disputes
                 about the meaning and application of particular procedural preconditions
                 for the use of arbitration." BG Grp., 572 U.S. at , 134 S. Ct. at 1207.
                 Procedural gateway matters "include the satisfaction of prerequisites such
                 as time limits, notice, laches, estoppel, and other conditions precedent to
                 an obligation to arbitrate." Id. (internal quotations omitted).
                             In Howsam, and again in BG Group, the Supreme Court
                 characterized "waiver" as a procedural gateway question, not a gateway
                 "question of arbitrability," stating that, under the FAA, the arbitrator
                 presumptively "should decide `allegation[s] of waiver, delay, or a like

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                defense to arbitrability." 537 U.S. at 84 (emphasis added) (alteration in
                original) (quoting Moses H. Cone, 460 U.S. at 25); BG Grp., 572 U.S. at
                , 134 S. Ct. at 1207. These pronouncements have generated
                uncertainty in the lower courts as to who decides litigation-conduct
                waiver. See 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, 100-01 (2013). Before Howsam, most courts held that, under the
                FAA, litigation-conduct waiver challenges were for the court to resolve.
                Marie v. Allied Home Mortg. Corp., 402 F.3d 1, 11-12 (1st Cir. 2005)
                (noting the First Circuit's "long history of deciding such waiver claims
                itself' and observing that "[t]his was in accord with the overwhelming
                weight of pre-Howsam authority, which held that waiver due to litigation
                conduct was generally for the court and not for the arbitrator"); see Nev.
                Gold & Casinos, Inc. v. Am. Heritage, Inc., 121 Nev. 84, 90, 110 P.3d 481,
                485 (2005) (judicially addressing litigation-conduct waiver without
                questioning whether the arbitrator should have decided the matter); see
                also Tallman, 131 Nev., Adv. Op. 71, 359 P.3d at 123 (upholding order
                rejecting litigation-conduct waiver claim but noting that all parties
                assumed "that waiver was for the court, not the arbitrator to decide").
                After Howsam, courts have divided on who decides litigation-conduct
                waiver. Compare Marie, 402 F.3d at 14 ("We hold that the Supreme Court
                in Howsam . . . did not intend to disturb the traditional rule that waiver
                by conduct, at least where due to litigation-related activity, is
                presumptively an issue for the court."), Ehleiter v. Grapetree Shores, Inc.,
                482 F.3d 207, 221 (3d Cir. 2007) ("[W]aiver of the right to arbitrate based
                on litigation conduct remains presumptively an issue for the court to
                decide [even] in the wake of Howsam."), and Grigsby & Assocs., Inc. v. M

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                  Sec. Inv., 664 F.3d 1350, 1353 (11th Cr. 2011) ("[I]t is presumptively for
                  the courts to adjudicate disputes about whether a party, by earlier
                  litigating in court, has waived the right to arbitrate."), with Nat'l Am. Ins.
                  Co. v. Transamerica Occidental Life Ins. Co., 328 F.3d 462, 466 (8th Cir.
                  2003) (summarily holding that Howsam mandates that the court refer all
                  waiver challenges to the arbitrator, even litigation-conduct waiver).
                              Howsam considered a procedural rule of the contractually
                  chosen arbitral forum, the National Association of Securities Dealers
                  (NASD), which provided that "no dispute 'shall be eligible for submission
                  to arbitration ... where six (6) years have elapsed from the occurrence or
                  event giving rise to the ... dispute."     Howsam, 537 U.S. at 81 (quoting
                  NASD Code of Arbitration Procedure § 10304 (1984)). The "waiver"
                  Howsam deemed the province of the arbitrator, not the court, thus did not
                  grow out of litigation conduct but, rather, delay in initiating arbitration, a
                  procedural matter the NASD rules controlled. The courts that have
                  retained the traditional rule that litigation-conduct waivers are for the
                  court to decide have distinguished Howsam by limiting its waiver
                  pronouncement to the context in which it arose, specifically, waiver
                  "arising from non-compliance with contractual conditions precedent to
                  arbitration."   Grigsby, 664 F.3d at 1353 (internal quotation marks
                  omitted). That Howsam presumed the arbitrator would decide the NASD
                  time-limit bar makes sense: The NASD arbitrator was "comparatively
                  better able to interpret and to apply" the NASD's procedural rule, so the
                  parties would have expected that issue to go to the arbitrator as the
                  decision-maker with the better comparative expertise. Howsam, 537 U.S.




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                at 85. 4 But litigation-conduct "waiver implicates courts' authority to
                control judicial procedures or to resolve issues . . . arising from judicial
                conduct." Ehleiter, 482 F.3d at 219. Arbitrators are not comparatively
                better able than courts to interpret and to apply litigation-conduct waiver
                defenses, see Grigsby, 664 F.3d at 1354 (stating that a court is "the
                decisionmaker with greater expertise in recognizing and controlling
                abusive forum-shopping"), and, thus, it is reasonable to assume that
                "parties would expect the court to decide [litigation-conduct waiver] itself."
                Ehleiter, 482 F.3d at 219.
                             Litigation-conduct waiver questions commonly arise out of
                proceedings before the court being asked to compel arbitration. Having
                the court assess waiver not only comports with party expectations but also
                is more efficient than reconstructing the litigation history before the
                arbitrator and deferring the question to the arbitral forum, only to have
                the dispute return if the arbitrator finds waiver.
                             Questions of litigation-conduct waiver are best
                             resolved by a court that "has inherent power to
                             control its docket and to prevent abuse in its
                             proceedings (i.e. forum shopping)," which has
                             "more expertise in recognizing such abuses, and in


                      4The  Court's quotation of Howsam's waiver language in BG Group,
                572 U.S. at , 134 S. Ct. at 1207, is not inconsistent with the distinction
                Grigsby and other post-Howsam cases have drawn between waiver by
                litigation-conduct and waiver by failure to comply with procedural
                prerequisites to arbitration. In BG Group, the Supreme Court deemed a
                foreign sovereign's local litigation provision the province of the arbitrators
                because it constituted "a purely procedural requirement—a claims-
                processing rule that governs when the arbitration may begin, but not
                whether it may occur or what its substantive outcome will be on the issues
                in dispute." Id. at , 134 S. Ct. at 1207.

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                                  controlling ... them," and which could most
                                  efficiently and economically decide the issue as
                                  "where the issue is waiver due to litigation
                                  activity, by its nature the possibility of litigation
                                  remains, and referring the question to an
                                  arbitrator would be an additional, unnecessary
                                  step."
                   See Am. Gen. Home Equity, Inc. v. Kestel,         253 S.W.3d 543, 551-52 (Ky.
                   2008) (internal footnote omitted) (quoting David LeFevre, Note, Whose
                   Finding Is It Anyway?: The Division of Labor Between Courts and
                   Arbitrators With Respect to Waiver,          2006 J. Disp. Resol. 305, 313-14
                   (2006)); see UAA of 2000, § 6, cmt. 5, 7 U.L.A., part 1A 28 (2009) (stating
                   that litigation-conduct "[w]aiver is one area where courts, rather than
                   arbitrators, often make the decision as to enforceability of an arbitration
                   clause," and noting that "[a]llowing the court to decide this issue of
                   arbitrability comports with the separability doctrine because in most
                   instances waiver concerns only the arbitration clause itself and not an
                   attack on the underlying contract" and that "[it is also a matter of judicial
                   economy to require that a party, who pursues an action in a court
                   proceeding but later claims arbitrability, be held to a decision of the court
                   on waiver").
                                  We therefore hold, as the majority of courts have, that
                   Howsam's reference to "waiver, delay, or a like defense" being for the
                   arbitrator encompasses "defenses arising from non-compliance with
                   contractual conditions precedent to arbitration, such as the NASD time
                   limit rule at issue in that case, [but] not ... claims of waiver based on
                   active litigation in court." Ehleiter, 482 F.3d at 219 (internal quotations
                   omitted); see Marie, 402 F.3d at 14. A party to an arbitration agreement
                   likely would expect a court to determine whether the opposing party's
                   conduct in a judicial setting amounted to waiver of the right to arbitrate.
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                Thus, even post-Howsam, litigation-conduct waiver remains a matter
                presumptively for the court to decide.
                                                      C.
                            We still must consider Rapid Cash's argument that its
                arbitration agreements provide for the arbitrator to decide litigation-
                conduct waiver, notwithstanding any presumption to the contrary.          See
                First Options, 514 U.S. at 943 ("Just as the arbitrability of the merits of a
                dispute depends upon whether the parties agreed to arbitrate that
                dispute, so the question 'who has the primary power to decide
                arbitrability' turns upon what the parties agreed about that matter."
                (internal citations omitted)). In this regard, the Dungan/Harrison form of
                agreement requires arbitration of "any claim, dispute or
                controversy. . . that arises from or relates in any way to. . . the validity,
                enforceability or scope of this Arbitration Provision," while the Quintino
                form of agreement requires the parties to arbitrate "any and all claims
                that arise out of. . . the validity, scope and/or applicability             of
                this. . . Arbitration Agreement." (Emphases added.)
                            Rapid Cash argues that the district court's finding of
                litigation-conduct waiver defeats the "enforceability" of its arbitration
                agreements and so, at minimum, Dungan's and Harrison's waiver
                challenge should have been referred to the arbitrator under First Options
                and its progeny. See Rent-A-Center, W., Inc. v. Jackson, 561 U.S. 63, 66
                (2010) (upholding district court's referral of substantive unconscionability
                defense to the arbitrator based on a delegation clause that sent to the
                arbitrator questions as to the "applicability, enforceability or formation of
                this Agreement including, but not limited to any claim that all or any part
                of this Agreement is void or voidable" (internal quotation omitted)). Rapid
                Cash argues that Quintino's agreement, too, delegates litigation-conduct
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                waiver to the arbitrator, since Quintino's waiver challenge amounts to a
                defense to the "applicability" of her arbitration agreement. We do not
                agree.
                             "An issue that is presumptively for the court to decide will be
                referred to the arbitrator for determination only where the parties'
                arbitration agreement contains 'clear and unmistakable evidence' of such
                an intent." Ehleiter, 482 F.3d at 221 (quoting First Options, 514 U.S. at
                944); see also Rent-A-Center, 561 U.S. at 70 n.1. The general language in
                both forms of Rapid Cash agreements falls short of the "clear and
                unmistakable evidence" required to overcome the presumption that
                litigation-conduct waiver is for the court to decide. The presumption that
                courts decide litigation-conduct waiver is rooted in presumed party intent
                and probable expectations. The agreements between Rapid Cash and its
                borrowers provide specifically for litigation of some claims in some courts
                without loss of the right to arbitrate other claims in other courts, yet are
                silent on the issue of who decides on which side of the line such later-
                asserted claims fall. A corollary of the First Options rule requiring "clear
                and unmistakable evidence" of contrary intent to overcome a division-of-
                labor presumption is the rule that "silence or ambiguity" is resolved
                against the party seeking to overcome the presumption.        First Options,
                514 U.S. at 944-45. Had Rapid Cash intended to delegate litigation-
                conduct waiver to the arbitrator, rather than the court, the agreements
                could and should have been written to say that explicitly. Absent an
                explicit delegation, litigation-conduct waiver remains a matter for the
                court to resolve.   See Marie, 402 F.3d at 15 (declining to interpret
                agreement delegating "arbitrability" determinations to the arbitrator as
                "evinc[ing] a clear and unmistakable intent to have waiver issues decided

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                by the arbitrator" and holding that "[n]either party should be forced to
                arbitrate the issue of waiver by conduct without a clearer indication in the
                agreement that they have agreed to do so"). 5
                            Here, as in Ehleiter, "fflitigants would expect the court, not an
                arbitrator, to decide the question of waiver based on litigation conduct,
                and the Agreement. . . does not manifest a contrary intent." 482 F.3d at
                222. We thus "cannot interpret the Agreement's silence regarding who
                decides the waiver issue here 'as giving the arbitrators that power, for
                doing so . . . [would] force [an] unwilling part [y] to arbitrate a matter he
                reasonably would have thought a judge, not an arbitrator, would decide."
                Id. (alteration in original) (quoting First Options, 514 U.S. at 945).
                                                      D.
                            We turn to Rapid Cash's contention that the district court
                erred in finding it waived its right to arbitrate. Waiver is not a favored
                finding and should not be lightly inferred. Coca-Cola Bottling, 242 F.3d at
                57; Clark Cty., 98 Nev. at 491, 653 P.2d at 1219. "A party seeking to prove
                the waiver of a right to arbitrate must demonstrate these elements:
                knowledge of an existing right to compel arbitration; acts inconsistent
                with that existing right; and prejudice to the party opposing arbitration


                      5Rent-A-Center   is not to the contrary. In Rent-A-Center, the party
                opposing arbitration conceded that the text of the delegation clause—
                referring to the arbitrator claims that the arbitration agreement was "void
                or voidable" and so not enforceable or applicable—encompassed his
                substantive unconscionability challenge. See Rent-A-Center, 561 U.S. at
                66 (internal quotation omitted). In this case, by contrast, the parties
                opposing arbitration hotly contest the delegation clauses in their
                agreements, which, unlike the Rent-A-Center                 clause, stop at
                "enforceability" and "applicability" without adding a description of what
                the term means.

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                  resulting from such inconsistent acts." 3 Thomas H. Oehmke, Commercial
                  Arbitration § 50:28, at 28-29 (3d ed. Supp. 2015); see Nev. Gold, 121 Nev.
                  at 90, 110 P.3d at 485.
                              Rapid Cash knew of its arbitration rights and acknowledges
                  that it waived its right to arbitrate its collection claims by bringing them
                  in justice court. Its point is that the claims the named plaintiffs have
                  asserted against Rapid Cash in district court are separate and distinct
                  from the collection claims Rapid Cash sued on in justice court. Especially
                  since its arbitration agreements permit it to litigate a collection claim in
                  justice court without losing the right to arbitrate other, distinct claims,
                  Rapid Cash sees no inconsistency in enforcing arbitration of the named
                  plaintiffs' claims despite its prior litigation in justice court. Rapid Cash
                  also disputes whether the class representatives have made a sufficient
                  showing of prejudice to justify a finding of waiver.
                              Consistent with the policy disfavoring waiver, caselaw teaches
                  that "only prior litigation of the same legal and factual issues as those the
                  party now wants to arbitrate results in waiver of the right to arbitrate."
                  Doctor's Assocs., Inc. v. Distajo, 107 F.3d 126, 133 (2d Cir. 1997); see
                  MicroStrategy, Inc. v. Lauricia, 268 F.3d 244, 250 (4th Cir. 2001); Subway
                  Equip. Leasing Corp. v. Forte, 169 F.3d 324, 328 (5th Cir. 1999);
                  Cottonwood Fin., Ltd. v. Estes, 810 N.W.2d 852, 860-61 (Wis. Ct. App.
                  2012). The reasoning underlying these cases is that litigating one claim is
                  not necessarily inconsistent with seeking to arbitrate another, separate
                  claim and does not prejudice rights of the opposing party that the
                  arbitration agreement protects.     See Distajo, 107 F.3d at 133 ("Finding
                  waiver where a party has previously litigated an unrelated yet arbitrable
                  dispute would effectively abrogate an arbitration clause once a party had

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                 litigated any issue relating to the underlying contract containing the
                 arbitration clause."). Thus, the franchisor in Distajo did not waive its
                 right to arbitrate its franchisees' claims for breach of the franchise
                 agreement by obtaining eviction orders against its franchisees in state
                 court because the eviction actions did not prejudice rights secured by the
                 arbitration agreement, as required to find waiver of arbitration rights
                 under the FAA. 107 F.3d at 134 ("[Pirejudice as defined by our [waiver]
                 cases refers to the inherent unfairness—in terms of delay, expense, or
                 damage to a party's legal position—that occurs when the party's opponent
                 forces it to litigate an issue and later seeks to arbitrate that same issue.").
                 Similarly, the payday lender in Cottonwood Financial did not waive its
                 right to compel arbitration of its borrower's counterclaim alleging violation
                 of the Wisconsin Consumer Act by bringing a collection action in small
                 claims court; the arbitration agreement provided that a small claims
                 action did not waive the right to compel arbitration of other claims and the
                 borrower's counterclaim converted the case from a small to a large claims
                 action, triggering the arbitration agreement. 810 N.W.2d at 860-61; see
                 Fid. Nat'l Corp. v. Blakely, 305 F. Supp. 2d 639, 642 (S.D. Miss. 2003)
                 (holding lender's state-court collection action did not waive its right to
                 seek arbitration of counterclaim asserting tort claims associated with the
                 transaction).
                                 This case differs from the cases just cited in one crucial
                 respect: The claims the named plaintiffs have asserted in district court
                 arise out of, and are integrally related to, the litigation Rapid Cash
                 conducted in justice court. By initiating a collection action in justice court,
                 Rapid Cash waived its right to arbitrate to the extent of inviting its
                 borrower to appear and defend on the merits of that claim. The entry of

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                   default judgment based on a falsified affidavit of service denied the
                   defendant borrower that invited opportunity to appear and defend.
                   Allowing the borrower to litigate its claim to set aside the judgment and
                   be heard on the merits comports with the waiver Rapid Cash initiated. If
                   the judgment Rapid Cash obtained was the product of fraud or criminal
                   misconduct and is unenforceable for that reason, it would be unfairly
                   prejudicial to the judgment debtor to require arbitration of claims seeking
                   to set that judgment aside, to enjoin its enforcement, and otherwise to
                   remediate its improper entry. We recognize that the arbitration
                   agreements specify that bringing one claim does not result in waiver of the
                   right to arbitrate another, but a no-waiver clause can itself be waived, see
                   Silver Dollar Club v. Cosgriff Neon Co., 80 Nev. 108, 111, 389 P.2d 923,
                   924 (1964), and should not be applied to sanctify a fraud upon the court
                   allegedly committed by the party who itself elected a litigation forum for
                   its claim. Cf. S & R Co. of Kingston v. Latona Trucking, Inc., 159 F.3d 80,
                   86 (2d Cir. 1998) (declining to enforce a "no waiver" clause where to do so
                   would hamper a judge's authority to control the proceedings and correct
                   any abuse in them); Gen. Elec. Capital Corp. v. Bio-Mass Tech, Inc., 136
                   So. 3d 698, 703 (Fla. Dist. Ct. App. 2014) (holding that an "antiwaiver or
                   'no waiver' provision is not itself determinative and does not operate as a
                   complete bar to finding a waiver of the right to arbitration").
                                                         E.
                               Rapid Cash urges us to differentiate among the claims the
                   named plaintiffs have brought, arguing that the named plaintiffs have an
                   adequate remedy under Rule 60(c) of the Nevada Justice Court Rules of
                   Civil Procedure, which provides:



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                            When a default judgment shall have been taken
                            against any party who was not personally served
                            with summons and complaint, either in the State
                            of Nevada or in any other jurisdiction, and who
                            has not entered a general appearance in the
                            action, the court, after notice to the adverse party,
                            upon motion made within six months after the
                            date of service of written notice of entry of such
                            judgment may vacate such judgment and allow
                            the party or the party's legal representatives to
                            answer to the merits of the original action,
                and that all other claims should be dismissed or sent to arbitration. Rapid
                Cash did not make this argument to the district court before that court
                entered its order denying Rapid Cash's second motion to compel
                arbitration, and thus, this argument is not properly before us on appeal.
                See Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981)
                ("A point not urged in the trial court. . . is deemed to have been waived
                and will not be considered on appeal."). 6 More to the point, while we do
                not pass upon the validity of any of the named plaintiffs' claims and we
                recognize that the FAA "requires that we rigorously enforce agreements to
                arbitrate, even if the result is 'piecemeal' litigation,"       Dean Witter
                Reynolds, Inc. v. Byrd, 470 U.S. 213, 221 (1985), we do not accept Rapid
                Cash's view of their separability for waiver purposes. The named
                plaintiffs' claims all concern, at their core, the validity of the default
                judgments Rapid Cash obtained against them in justice court, as to which



                      6A  separate proceeding regarding this issue whereby Rapid Cash
                seeks original writ relief from the district court's orders partially granting
                class certification and declining to dismiss certain claims for relief is
                pending before this court as Principal Investments, Inc. v. Eighth Judicial
                District Court, Docket No. 61581.

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                   issue the district court correctly concluded that Rapid Cash waived its
                   right to an arbitral forum.
                                   We therefore affirm.




                   We concur:



                              C4      ert.
                   Hardesty




                   Gibbons




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                  SAITTA, J., concurring:
                              In large part, I agree with the majority's opinion. However, I
                  disagree with the majority's inclusion as dicta of two cases, Cottonwood
                  Financial, Ltd. v. Estes, 810 N.W.2d 852 (Wis. Ct. App. 2012), and Fidelity
                  National Corp. v. Blakely, 305 F. Supp. 2d 639 (S.D. Miss. 2003). The
                  Cottonwood court based its decision on its interpretation of the arbitration
                  clause in that case and did not perform an analysis of whether the "same
                  legal and factual issues" were at issue in the lender's collection action as
                  the borrower's counterclaim. Compare Cottonwood Financial, 810 N.W.2d
                  at 860-61, with Majority Opinion at 17-18 (holding that 'only prior
                  litigation of the same legal and factual issues as those the party now
                  wants to arbitrate results in waiver of the right to arbitrate." (quoting
                  Doctor's Assocs., Inc. v. Distajo,   107 F.3d 126, 133 (2d Cir. 1997))).
                  Therefore, I believe that Cottonwood is inapposite to the majority's
                  analysis under the standard it set out in its opinion.
                              In the case of Blakely, I respectfully note that the holding in
                  that case directly contradicts the majority's holding in the current case.
                  Compare Blakely, 305 F. Supp. 2d at 642 (holding lender's state court
                  collection action did not waive its right to seek arbitration of counterclaim
                  asserting tort claims associated with the transaction), with Majority
                  Opinion at 20-21 (holding that lender's state-court collection action waived
                  its right to seek arbitration of claims associated with the transaction).
                  Therefore, I am puzzled by its inclusion in the majority's opinion.
                              Lastly, I note that the above caselaw originates from the
                  Wisconsin Court of Appeals and a federal district court in Mississippi.
                  Thus, beyond the issue of their applicability to the current case, I question



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                their persuasiveness as authority in Nevada. Therefore, although I concur
                with most of the majority's opinion, I do not join with them as to the use of
                those two cases as dicta.




                                                                                    J.
                                                   Saitta




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