Filed 6/27/16 Williams v. U.S. Bancorp Investments CA1/4
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


SCOTT WILLIAMS,
         Plaintiff and Respondent,
                                                                     A141199
v.
U.S.BANCORP INVESTMENTS, INC., et                                    (City & County of San Francisco
al.,                                                                 Super. Ct. No. CGC10499011)
         Defendants and Appellants.


         U.S. Bancorp Investments, Inc. and U.S. Bancorp (collectively USBI) appeal an
order denying their petition to compel arbitration of the individual claims of plaintiff
Scott Williams. USBI contends Williams is barred by collateral estoppel from bringing
his claims as a class action and that he is therefore bound by an agreement to arbitrate his
individual disputes. We shall affirm the order.
                                               I. BACKGROUND
         Two lawsuits are at issue in this dispute. The first of them, Burakoff et al. v. U.S.
Bancorp (L.A. Super. Ct., 2008, No. BC341430) (Burakoff), was a class action brought
by Robert Burakoff and Mohamed Alakozai seeking restitution of overtime wages and
wage deductions, waiting time penalties, and meal and rest breaks. In the Burakoff
action, the named plaintiffs alleged they worked for USBI as securities brokers and
sought to represent a class of securities brokers or broker trainees.
         In May 2008, the Los Angeles Superior Court certified a class of “All individuals
who are or were employed by Defendant as Investment Financial Consultants in the State


                                                             1
of California at any time during the period commencing October 13, 2001 to the date of
entry of this Order.” The order was entered on May 8, 2008. The court also certified two
subclasses. Subclass A consisted of “All class members who worked more than 40 hours
in a week or 8 hours in a day but did not receive overtime pay.” Subclass B consisted of
“All class members who were subject to at least one deduction from commissions or
other wages, which deduction was not the result of a dishonest, willful or grossly
negligent act by the employee, or who were not reimbursed for expenses or losses
incurred by the class member in direct consequence of the discharge of his or her duties.”
       The Burakoff complaint alleged (1) US Bancorp committed acts of unfair
competition by not paying overtime pay to members of Subclass A because they were not
exempt from overtime pay under the Fair Labor Standards Act (FLSA, 29 U.S.C.
§ 207(a)(1)) or Wage Order 4-2001 (Cal. Code Regs., tit. 8, § 11040); (2) US Bancorp
committed unfair competition by making illegal deductions from the members of
Subclass B; (3) both subclasses were owed penalties for US Bancorp’s violations of
certain Labor Code provisions, including failing to pay all wages due, failure to provide
proper wage statements, and failure to maintain records of the daily hours worked by
members of subclass A; and (4) members of Subclass A were entitled to additional pay
for missed rest and meal breaks.
`      The plaintiff in the present action, Williams, became employed by USBI as a
financial consultant in May 2007. Williams filed a class action complaint in the present
action on April 23, 2010 against USBI in the San Francisco Superior Court, alleging
causes of action for unpaid overtime, unpaid meal period premiums, unpaid rest period
premiums, unpaid business expenses, wages not timely paid, non-compliant wage
statements, and unlawful business practices. As amended, the complaint proposed two
subclasses: (1) the “Unpaid Wages Subclass,” defined as “All commission paid
employees who worked for Defendants in California from May 9, 2008 until the date of
certification,” and (2) the “Unreimbursed Business Expenses Subclass,” defined as “All
employees of Defendants who paid for business-related expenses, including expenses for



                                            2
assistants, client or prospect beverages or meals, or cell phone expenses, in California
from May 9, 2008 until the date of certification.”
       USBI demurred to the first amended complaint on the ground Williams was part
of the certified class in the Burakoff action, which was pending in the Los Angeles
Superior Court. USBI asked the court either to dismiss the action without prejudice or
issue an order staying the Williams action until the Burakoff action was concluded. On
September 30, 2010, the trial court found the current action “is founded upon the same
primary rights, states substantially the same causes of action, and involves substantially
the same parties” as in the Burakoff action. The court therefore stayed the present action
until the conclusion of the proceedings in Burakoff. During the pendency of the stay, the
parties in the current case filed a number of case management conference statements and
a notice of related case.
       After the parties to the Burakoff action engaged in extensive discovery, USBI
moved to decertify the class. In May 2011, the Los Angeles Superior Court granted the
motion to decertify as to Subclass A (financial consultants who did not receive overtime
pay) on the ground members of the subclass lacked sufficient commonality. The court
denied the motion as to Subclass B (financial consultants who were subject to deductions
from commissions or were not reimbursed for expenses). The parties to the Burakoff
action reached a settlement as to the claims of Subclass B in September 2012.1 Williams
acknowledged that, due to his participation in the settlement, his fourth cause of action in
the present case, for unpaid business expenses, should be dismissed.
       The stay in the present action was lifted in July 2013, after the Burakoff action was
complete.
       USBI then demanded arbitration of Williams’s individual claims. It based its
demand on a “Form U4” that Williams had signed at the outset of his employment with
USBI, which included an agreement “to arbitrate any dispute, claim or controversy that
may arise between you and your firm, or a customer, or any other person, that is required

       1
        In a case management conference statement filed in October 2012, USBI
indicated it intended to bring a motion to compel arbitration.

                                             3
to be arbitrated under the rules of the self-regulatory organizations with which you are
registering.” When Williams did not agree to arbitrate his individual claims, USBI
brought a motion to compel arbitration and to dismiss the first amended complaint, based
on Williams’s Form U4 and a rule of the Financial Industry Regulatory Authority’s Code
of Arbitration Procedure for Industry Disputes (FINRA rules), rules 1300 et seq.,
requiring a dispute to be arbitrated if it “arises out of the business activities of a member
or an associated person and is between or among: [¶] Members; [¶] Members and
Associated Persons; or [¶] Associated Persons.” (FINRA rule 13200.)2
        The parties disputed the effect of FINRA rule 13204, which forbids arbitration of
class actions, and further provides: “A member or associated person may not enforce any
arbitration agreement against a member of a certified or putative class action with
respect to any claim that is the subject of the certified or putative class action until:
[¶] The class certification is denied; [¶] The class is decertified; [¶] The member of the
certified or putative class is excluded from the class by the court; or [¶] The member of
the certified or putative class elects not to participate in the class or withdraws from the
class according to conditions set by the court, if any.” (Former FINRA rule 13204(d)
[now FINRA rule 13204(a)(4)], italics added.)3 USBI contended the Burakoff
decertification order collaterally estopped Williams from relitigating the appropriateness
of class certification because he was a member of the Burakoff class, and because
Burakoff raised substantially the same claims and identical class certification issues.4 As

        2
        There is no dispute that FINRA’s rules are the “rules of the self-regulatory
organization[]” with which Williams registered and that they apply to this dispute.
        3
            The parties refer to the rule in question as rule 13204(d), and we shall do the
same.
        4
         USBI also demurred to the first amended complaint on the grounds the Los
Angeles County Superior Court had already ruled in the Burakoff action that the issues
could not proceed as a class action, and that the cause of action for unpaid expenses was
barred by the settlement as to Subclass B in the Burakoff action. The trial court sustained
the demurrer as to the cause of action for unpaid business expenses and overruled it as to
all other causes of action.

                                                 4
a result, according to USBI, FINRA rule 13024(d) did not prevent arbitration of
Williams’s individual claims. Williams argued that his dispute was not subject to
arbitration because there had not yet been any determination on class certification in the
present action, and that principles of collateral estoppel did not bar him from litigating
the appropriateness of such certification.
       The trial court denied USBI’s motion to compel arbitration and to dismiss the
class complaint. It ruled: “FINRA Rule 13204(d) prohibits the enforcement of an
arbitration agreement with respect to any claim that is the subject of a putative class
action until there is a determination of class certification made. Collateral estoppel does
not apply here, as the first prong of the test requiring that the issues be identical is not
established. [Citation.] The Burakoff class was comprised of ‘all individuals who are or
were employed as Investment Financial Consultants in the State of California at any time
during the period commencing October 13, 2001 to [May 8, 2008].’ [Citation.] The
putative class in this case is comprised of ‘all commission paid employees who worked
for Defendants in California from May 9, 2008 until the date of certification.’ [Citation.]
The issue of whether the class in this case can be certified is not identical to the issue of
decertification of the Burakoff class because the two classes are comprised of different
class members during different time periods. . . . [C]ollateral estoppel applies where a
party seeks to certify an identical class. Because the class here is not identical, collateral
estoppel does not apply. Therefore, no determination of class certification has been made
at this point in the proceedings.” USBI has appealed from this order.
                                      II. DISCUSSION
       USBI contends the trial court erred in denying its motion to compel arbitration.
According to USBI, the issue of the propriety of class certification had already been
resolved in the Burakoff action, to which Williams was a party, and Williams is barred by
principles of collateral estoppel from relitigating the issue. Accordingly, USBI contends,
FINRA rule 13204(d) does not prevent the enforcement of the parties’ arbitration
agreement.



                                               5
   A. Legal Standards
           1. Motion to Compel Arbitration
       “In reviewing an order denying a motion to compel arbitration, we review the trial
court’s factual determinations under the substantial evidence standard, and we review
issues of law de novo. [Citation.]” (Duick v. Toyota Motor Sales, U.S.A., Inc. (2011)
198 Cal.App.4th 1316, 1320.) Where the facts are undisputed, the standard of review is
de novo. (Peng v. First Republic Bank (2013) 219 Cal.App.4th 1462, 1468.) Upon
uncontested facts, a trial court’s application of the doctrine of collateral estoppel is also
reviewed de novo. (Roos v. Red (2005) 130 Cal.App.4th 870, 878; Johnson v.
GlaxoSmithKline, Inc. (2008) 166 Cal.App.4th 1497, 1507 (Johnson).) We review the
decision of the trial court rather than its reasoning, and “ ‘[i]f correct upon any theory of
law applicable to the case, the judgment will be sustained regardless of the considerations
that moved the lower court to its conclusion.’ ” (Schabarum v. California Legislature
(1998) 60 Cal.App.4th 1205, 1216.)
           2. Collateral Estoppel
       The doctrine of collateral estoppel bars relitigation of issues already argued and
decided in a prior proceeding. (Johnson, supra, 166 Cal.App.4th at p. 1507.) Five
requirements must be satisfied: “ ‘First, the issue sought to be precluded from relitigation
must be identical to that decided in a former proceeding. Second, this issue must have
been actually litigated in the former proceeding. Third, it must have been necessarily
decided in the former proceeding. Fourth, the decision in the former proceeding must be
final and on the merits. Finally, the party against whom preclusion is sought must be the
same as, or in privity with, the party to the former proceeding.’ [Citations.]” (Id. at
pp. 1507–1508.) Even if all these requirements are met, the court may look to the public
policies underlying the doctrine before applying collateral estoppel in a particular setting;
thus, the court balances the rights of the party to be estopped against the policies of
minimizing repetitive litigation, preventing inconsistent judgments, and protecting
against vexatious litigation. (Pacific Lumber Co. v. State Water Resources Control Bd.
(2006) 37 Cal.4th 921, 943–944 (Pacific Lumber); Alvarez v. May Dept. Stores Co.


                                               6
(2006) 143 Cal.App.4th 1223, 1233 (Alvarez); Jackson v. City of Sacramento (1981)
117 Cal.App.3d 596, 603 (Jackson) [“Collateral estoppel is not an inflexible, universally
applicable principle; policy considerations may limit its use where the limitation on
litigation underpinnings of the doctrine are outweighed by other factors”].) The first
requirement—that the issues in the first and second proceeding be identical—means that
“where the previous decision rests on a ‘different factual and legal foundation’ than the
issue sought to be adjudicated in the case at bar, collateral estoppel effect should be
denied. [Citation.]” (Wimsatt v. Beverly Hills Weight etc. Internat., Inc. (1995)
32 Cal.App.4th 1511, 1517.) The party asserting collateral estoppel has the burden of
proving each of the requirements have been met. (Jackson, 117 Cal.App.3d at p. 602;
Johnson, supra, 166 Cal.App.4th at p. 1508.)5
           3. Elements of Class Certification
        The requirements for class certification are also germane to the issue before us.
“ ‘Class certification requires proof (1) of a sufficiently numerous, ascertainable class,
(2) of a well-defined community of interest, and (3) that certification will provide
substantial benefits to litigants and the courts, i.e., that proceeding as a class is superior to
other methods. [Citations.] In turn, “the community of interest requirement embodies
three factors: (1) predominant common questions of law or fact; (2) class representatives
with claims or defenses typical of the class; and (3) class representatives who can
adequately represent the class.” [Citation.]’ [Citation.]” (Bridgeford v. Pacific Health
Corp. (2012) 202 Cal.App.4th 1034, 1041 (Bridgeford).)


       5
         Moreover, “ ‘[a] former judgment is not a collateral estoppel on issues which
might have been raised but were not; just as clearly, it is a collateral estoppel on issues
which were raised, even though some factual matters or legal arguments which could
have been presented were not.’ [Citation.]” (Interinsurance Exchange of the Auto. Club
v. Superior Court (1989) 209 Cal.App.3d 177, 181; and see Johnson, supra, 166
Cal.App.4th at p. 1517 [“That application of collateral estoppel does not depend on the
legal theory advanced in the successive lawsuits is well established”].) We are not
persuaded by Williams’s argument that the minor differences in the legal theories
asserted in the present action and the Burakoff action suffice to prohibit the application of
collateral estoppel.

                                               7
   B. Analysis
       USBI argues that under Alvarez, collateral estoppel is properly applied to the issue
of class certification. Alvarez, decided in 2006, was a putative class action by area sales
managers for the defendant department store, which had already faced two prior class
actions asserting failure to pay overtime compensation. Class certification had been
denied in both prior cases. (Alvarez, supra, 143 Cal.App.4th at pp. 1227–1229.) The
plaintiff in Alvarez, who was not a named plaintiff in the earlier cases, filed a class action
asserting the defendant had improperly classified area sales managers as exempt in order
to avoid payment of overtime wages and other benefits. (Id. at p. 1229.) The trial court
sustained a demurrer as to the class allegations, and the appellate court affirmed, ruling
that general principles of collateral estoppel applied when a prevailing party sought to
enforce a ruling denying class certification against an absent putative class member. (Id.
at pp. 1230, 1236.) According to the appellate court, the plaintiffs in one of the earlier
actions were the “ ‘virtual representatives’ ” of the Alvarez plaintiffs because (1) the only
difference between the parties was the name of the representative plaintiff, (2) the earlier
plaintiffs had a strong motive to assert the same interest as the Alvarez plaintiff, and
(3) the plaintiffs had a full opportunity to present their case. (Id. at p. 1238.) Both
complaints alleged the same general misconduct, which took place during approximately
the same time period, and they sought certification of the same class of employees. (Id.
at p. 1237.) The court concluded that due process was satisfied when an absent class
member’s interest was adequately represented, and applied the doctrine of collateral
estoppel to bar relitigation of the question of class certification. (Id. at p. 1239; and see
Bufil v. Dollar Financial Group, Inc. (2008) 162 Cal.App.4th 1193 (Bufil).)
       The rule of Alvarez, however, has since been called into question. While
California courts have held or assumed that the “denial of class certification can establish
collateral estoppel against absent putative class members on issues that were actually
decided in connection with the denial,” federal courts have been divided as to whether
denial of class certification can establish collateral estoppel. (Bridgeford, supra,
202 Cal.App.4th at p. 1043, citing In re Baycol Products Litigation (8th Cir. 2010)


                                               8
593 F.3d 716, 723, revd. sub nom. Smith v. Bayer Corp. (2011) 564 U.S. 299 [the denial
of class certification binding on unnamed putative class members], In re
Bridgestone/Firestone, Inc. Tires Products Liability Litigation (7th Cir. 2003) 333 F.3d
763, 768–769 [unnamed putative class members treated as parties for purposes of
collateral estoppel], and In re Ford Motor Co. (11th Cir. 2006) 471 F.3d 1233, 1253–
1254 & fn. 40 [denial of class certification normally insufficiently final to establish
collateral estoppel].)
       In 2011, the United States Supreme Court weighed in on the issue. In Smith v.
Bayer Corp. (2011) 564 U.S. 299 [131 S.Ct. 2368] (Smith), as the Bridgeford court
explained, “the high court held that unnamed putative class members cannot be bound by
issue preclusion if the class was never certified in the prior proceeding. ([Smith, supra,]
at pp. ___–___ [131 S.Ct. at pp. 2380–2381].) . . . The high court explained that
unnamed putative class members as nonparties can be bound by issue preclusion only if
there was a properly certified class because only in those circumstances can the court in
the later proceeding conclude that their interests were adequately represented in the prior
proceeding. (Id. at pp. ___-___ and fn. 11 [131 S.Ct. at pp. 2379–2381 & fn. 11].)”
(Bridgeford, supra, 202 Cal.App.4th at pp. 1043–1044.)
       The Bridgeford court found the reasoning in Smith “persuasive and conclude[d],
under California law, that the denial of class certification cannot establish collateral
estoppel against unnamed putative class members on any issue because unnamed putative
class members were neither parties to the prior proceeding nor represented by a party to
the prior proceeding so as to be considered in privity with such a party for purposes of
collateral estoppel.” (Id. at p. 1044; see also Taylor v. Sturgell (2008) 553 U.S. 880, 898,
900–901 (Taylor) [rejecting a “broad theory of virtual representation” and concluding in
class action context that limitations on a party’s representation of a nonparty for




                                              9
preclusion purposes are implemented by procedural safeguards of Federal Rule of Civil
Procedure 23].)6
       It is not clear, however, that the rule of Bridgeford applies where, as here, a class
is first certified and then decertified, that is, where for at least a portion of the earlier
litigation, the absent class members were parties and were represented by the named
plaintiffs and their counsel. In Burakoff, the class remained certified for three years, and
the decertification motion was granted only after the parties had developed the evidence
regarding the propriety of class certification through extensive discovery. The parties
have not drawn our attention to any case raising this issue, and our own research has
disclosed none.7
       We need not decide this question because, whatever its resolution, we are not
persuaded that the trial court erred in declining to apply collateral estoppel to deny the
petition to compel arbitration. The party asserting collateral estoppel has the burden to
show its requirements are met. (Pacific Lumber, supra, 37 Cal.4th at p. 943; Jackson,
supra, 117 Cal.App.3d at p. 602; First N.B.S. Corp. v. Gabrielsen (1986) 179 Cal.App.3d

       6
         Smith was decided under the federal Anti-Injunction Act (28 U.S.C. § 2283)
which permits a federal court to enjoin a state court proceedings only “ ‘as expressly
authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect
or effectuate its judgment.’ ” (Smith, supra, 564 U.S. ___, 131 S.Ct. at p. 2375.) The
high court noted that under that act, a federal court should issue an injunction “only when
a former federal adjudication clearly precludes a state court decision.” (Id. at p. 2382.)
However, the court concluded, “this case does not even strike us as close. The issues in
the federal and state lawsuits differed because the relevant legal standards [regarding
class certification] differed. And the mere proposal of a class in the federal action could
not bind persons who were not parties there.” (Ibid.)
       7
          Smith contains language that suggests its holding is limited to classes that were
never certified. For instance, the court emphasized that in the prior case at issue, “we
cannot say that a properly conducted class action existed at any time in the litigation. . . .
Neither a proposed class action nor a rejected class action may bind nonparties. What
does have this effect is a class action approved under [Federal Rule of Civil
Procedure] 23. But [the prior] lawsuit was never that.” (Smith, supra, 564 U.S. at p. 315,
italics added.) Johnson, on the other hand, suggests that a “ ‘properly conducted’ ” class
action that may bind nonparties means one that has been certified and then litigated to
judgment or settled. (Johnson, supra, 166 Cal.App.4th at pp. 1511–1512, fn. 8.)

                                                10
1189, 1194.) Normally, in order to make this determination, a court looks not simply to
the underlying findings and judgment, but “ ‘carefully scrutinize[s]’ the pleadings and
proof.” (Schaefer/Karpf Productions v. CNA Ins. Companies (1998) 64 Cal.App.4th
1306, 1314.) However, where the prior judgment “unambiguously covers the new
action,” the court in the later action need not examine the earlier record. (Aerojet-
General Corp. v. American Excess Ins. Co. (2002) 97 Cal.App.4th 387, 399 (Aerojet-
General); accord Jenkins v. County of Riverside (2006) 138 Cal.App.4th 593, 618.)
       As the trial court noted in concluding the two classes were not identical, the
Burakoff class was comprised of “all individuals who are or were employed as
Investment Financial Consultants in the State of California at any time during the period
commencing October 13, 2001 to [May 8, 2008],” and the putative subclass in the present
action is comprised of “all commission paid employees who worked for Defendants in
California from May 9, 2008 until the date of certification.” USBI points out that
Williams was a member of the putative class of investment financial consultants in
Burakoff, and investment financial consultants are members of the proposed class of
commission paid employees.8 That is, according to USBI, the Burakoff subclass A
(investment financial consultants) was a subset of the type of employees comprising the
proposed class in the present action (all commission paid employees). Because the
current proposed class is broader than that rejected in Burakoff, USBI argues, the
Burakoff court’s conclusion that members of Subclass A in that case lacked sufficient
commonality necessarily means that the members of a broader class in the present case
likewise lacked the requisite commonality for purposes of litigating similar claims, and
the finding of insufficient commonality binds Williams now. Moreover, USBI argues,
the different dates for the proposed classes are immaterial because plaintiff has not
alleged that the circumstances or working conditions changed between the two class


       8
       In the first amended complaint in this action, Williams alleged he had been
employed “as a ‘Financial Advisor’ and ‘Investment Financial Consultant,’ which are
commission paid positions.”


                                             11
periods. (Cf. Bufil, supra, 162 Cal.App.4th at pp. 1203–1204 [classes in two cases not
the same where the second class was a distinct subclass of the first].)
       In making this argument, USBI ignores the fact that it, not plaintiff, bears the
burden of proof on the issue of collateral estoppel. (Johnson, supra, 166 Cal.App.4th at
p. 1508; Pacific Lumber, supra, 37 Cal.4th at p. 943.) The motion before us is not one
for class certification, but to compel arbitration and dismiss the complaint. At this point,
plaintiff has not yet moved for class certification and has not developed a record to
support such a motion. USBI has not pointed to any evidence supporting its contention
that the differences between the Burakoff class and the class proposed here are
immaterial, or that there was no difference in the duties of the class members as between
the two class periods. (See Conservatorship of Buchenau (2011) 196 Cal.App.4th 1031,
1040–1041 [appellants failed to include in record evidence necessary to determine
whether two proceedings involved identical factual allegations]; Union Pacific Railroad
Co. v. Santa Fe Pacific Pipelines, Inc. (2014) 231 Cal.App.4th 134, 179 [“Collateral
estoppel does not bar a later claim if new facts of changed circumstances have occurred
since the prior decision”].) USBI asserted in a brief in support of its demurrer below that
the depositions and declarations upon which the Burakoff decertification order was based
show that between 2004 and 2011, the class members’ responsibilities remained the
same. But it does not point to the underlying evidence, and our review of the
decertification order itself shows that it was based on the class members’ duties during
the Burakoff class period. This evidentiary record is insufficient to support the assertion
that class members’ duties remained the same throughout the two class periods.
(Compare City of Oakland v. Oakland Police & Fire Retirement System (2014)
224 Cal.App.4th 210, 231 & fn. 11 [evidence presented in trial court showed holiday
staffing and compensation practices at issue had been consistent between time of earlier
decision and case at issue]; Alvarez, supra, 143 Cal.App.4th at pp. 1229–1230, 1232,
1237 [overlap of several months between time periods at issue; court concluded




                                             12
complaint’s alleged misconduct took place during approximately same time period].) It
is possible that USBI will be able to make such a showing, but it has not done so yet.9
       We recognize that where the prior judgment unambiguously shows that the issues
in the prior proceeding were identical to those in the current proceeding, the court may
apply collateral estoppel without examining the record. (Aerojet-General, supra,
97 Cal.App.4th at p. 399.) While the classes here and in Burakoff might ultimately be
found to be indistinguishable, this record does not compel that conclusion as a matter of
law. In the circumstances of this case, the trial court did not err in denying USBI’s
motion to compel arbitration and dismiss the class complaint.10
                                   III. DISPOSITION
       The order appealed from is affirmed.




       9
         At oral argument, the question arose as to whether, had USBI litigated the issue
of collateral estoppel more fully and with an evidentiary record, it would have then
become vulnerable to a claim that it had waived the right to arbitrate. Williams’s counsel
conceded that, having argued USBI was required to provide evidence that all elements of
collateral estoppel were satisfied, Williams could not turn around and argue that in doing
so USBI would be waiving its right to arbitration. Williams’s counsel did not concede
any other grounds that might be advanced to support a waiver claim.
       10
          We need not consider Williams’s additional argument that USBI waived its
right to compel arbitration.

                                            13
                                 _________________________
                                 Rivera, J.


We concur:


_________________________
Reardon, Acting P.J.


_________________________
Streeter, J.




                            14
