                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                   Bovay v. Sears, Roebuck & Co., 2013 IL App (1st) 120789




Appellate Court            ARIN A . BOVAY, Individually and on Behalf of All Others Similarly
Caption                    Situated, Plaintiffs-Appellees, v. SEARS, ROEBUCK AND COMPANY,
                           Defendant-Appellant.



District & No.             First District, Sixth Division
                           Docket No. 1-12-0789


Filed                      July 19, 2013


Held                       The order denying defendant’s motion to compel arbitration of plaintiffs’
(Note: This syllabus       putative class action alleging that defendant injured plaintiffs by
constitutes no part of     disclosing confidential data to third parties, including the numbers of
the opinion of the court   credit cards defendants had issued to plaintiffs and the balances on those
but has been prepared      accounts, was affirmed on the ground that defendant’s request was
by the Reporter of         untimely and the right to arbitrate had been waived, since defendant had
Decisions for the          a known right to arbitration when plaintiffs’ actions were filed, there was
convenience of the         no showing that the assertion of the right to arbitration would have been
reader.)
                           futile, and defendant’s litigation of the case for many years before
                           requesting arbitration prejudiced plaintiffs.


Decision Under             Appeal from the Circuit Court of Cook County, Nos. 01-CH-18096, 02-
Review                     CH-4693, 03-CH-7605 cons.; the Hon. Richard J. Billik, Judge,
                           presiding.



Judgment                   Affirmed.
Counsel on                 Francis A. Citera, Jane B. McCullough, and Paul J. Ferak, all of
Appeal                     Greenberg Traurig LLP, of Chicago, for appellant.

                           Ben Barnow, Sharon Harris, and Erich P. Schork, all of Barnow &
                           Associates, P.C., Norman A. Rifkind, Leigh Lasky, and Amelia S.
                           Newton, all of Lasky & Rifkind, Ltd., and William J. Harte, all of
                           Chicago, and Bonny E. Sweeney and Carmen A. Medici, both of Robbins
                           Geller Rudman & Dowd LLP, of San Diego, California, for appellees.


Panel                      JUSTICE REYES delivered the judgment of the court, with opinion.
                           Presiding Justice Lampkin and Justice Gordon concurred in the judgment
                           and opinion.



                                              OPINION

¶1          In this interlocutory appeal brought pursuant to Illinois Supreme Court Rule 307(a)(1)
        (eff. Feb. 26, 2010), defendant Sears, Roebuck & Company (Sears) seeks the reversal of an
        order of the circuit court of Cook County denying its motion to compel arbitration of claims
        brought by plaintiffs in a consolidated class action. Sears maintains the circuit court erred in
        ruling Sears waived its right to arbitrate the claims and untimely demanded arbitration,
        arguing a United States Supreme Court opinion issued in 2011 represented a significant
        change in the law justifying its decision to seek arbitration years after plaintiffs filed their
        respective complaints. For the following reasons, we affirm.

¶2                                         BACKGROUND
¶3          The limited record on interlocutory appeal submitted by Sears and supplemented by
        plaintiffs fails to include the plaintiffs’ initial complaints in this matter. Nevertheless, the
        record discloses plaintiffs Arin A. Bovay, Nancy Woods and Elizabeth Turner filed a
        putative class action complaint against Sears in 2001 (Bovay lawsuit). Plaintiffs Mark
        Triezenberg and Mary Lawson filed a putative class action complaint against Sears in 2002
        (Triezenberg lawsuit). Plaintiffs Patricia Clark, Terrel Gore and Mary Rodriguez filed a
        putative class action complaint against Sears in 2003 (Clark lawsuit). These complaints, as
        subsequently amended, each alleged the respective plaintiffs were Sears credit card holders
        who were injured when Sears unlawfully disclosed confidential data, including credit card
        numbers and account balances, to third parties. The complaints alleged causes of action
        including: (1) violations of the Illinois Consumer Fraud and Deceptive Business Practices
        Act (815 ILCS 505/1 et seq. (West 2000)); (2) intrusion upon seclusion; (3) public disclosure
        of private facts; and (4) unjust enrichment. On April 25, 2002, the circuit court entered an
        order consolidating the Bovay lawsuit with the Triezenberg lawsuit. On May 13, 2003, the

                                                  -2-
     circuit court entered an order consolidating the Clark lawsuit with the Bovay lawsuit.
¶4       Depositions of the plaintiffs conducted by Sears disclose each of these named plaintiffs
     was a Sears credit card holder prior to 2000 through the end of 2003, with the exception of
     Woods, who stopped receiving credit from Sears in 2000.1 The credit card agreement
     between Sears and plaintiffs in effect as of March 2000 provides in part:
             “Section 22. ARBITRATION. Any and all claims, disputes or controversies of any
         nature whatsoever (whether in contract, tort, or otherwise) arising out of, relating to, or
         in connection with: (a) this Agreement; (b) any prior Agreement you may have had with
         us ***; (c) the application for the Account, this Agreement or any prior agreement; (d)
         the relationships which result from this Agreement or any prior agreement (including any
         relationship with us ***); or (e) the validity, scope or enforceability of this arbitration
         section or this Agreement or any prior agreement *** shall be resolved, upon your
         election or our election, by final and binding arbitration before a single arbitrator, on an
         individual basis without resort to any form of class action, except that each party retains
         the right to seek relief in a small claims court, on an individual basis without resort to any
         form of class action, for claims within the scope of its jurisdiction.
             Arbitration may be elected at any time, regardless of whether a lawsuit has been filed
         or not, unless such a lawsuit has resulted in a final judgment or the other party would
         suffer substantial prejudice as a result of the delay in demanding arbitration. The
         arbitrator shall be a lawyer or retired judge with not less than 15 years’ experience in the
         practice of law. This arbitration agreement will not apply to claims previously asserted,
         or which are later asserted, in lawsuits filed before the effective date of this Agreement,
         but it will apply to all other claims, even if the facts and circumstances upon which the
         claims are based existed before the effective date of this Agreement ***.
             All arbitrations shall be administered by the National Arbitration Forum (‘NAF’) in
         accordance with the Code of Procedure in effect at the time the claim is filed ***.
             Any arbitration you attend will take place at a location within the federal judicial
         district that includes your billing address at the time the claim is filed. We will advance
         either all or part of the fees on your behalf to the NAF and the arbitrator if you send us
         a written request. The arbitrator will decide whether you, us or any toher party will
         ultimately be responsible for these fees. You agree to return the amount of any advanced
         fees as finally allocated by the arbitrator. The arbitrartor shall apply relevant substantive
         law and applicable statutes of limitation and shall provide written, reasoned findings of
         fact and conclusions of law.
             This arbitration section of this Agreement is made pursuant to a transaction involving
         interstate commerce and shall be governed by the Federal Arbitration Act ***. If any
         portion of this arbitration section is deemed invalid or unenforceable, it shall not
         invalidate the remaining portions of this arbitration section ***.



             1
              In addition, motions filed by the parties indicate Bovay withdrew his claims in 2009 for
     health reasons.

                                                -3-
              YOU UNDERSTAND AND AGREE, AND WE UNDERSTAND AND AGREE,
         THAT BECAUSE OF THIS ARBITRATION CLAUSE NEITHER YOU NOR WE
         WILL HAVE THE RIGHT TO GO TO COURT EXCEPT AS PROVIDED
         ABOVE OR TO HAVE A JURY TRIAL, OR TO PARTICIPATE AS A
         REPRESENTATIVE OR MEMBER OF ANY CLASS OF CLAIMANTS
         PERTAINING TO ANY CLAIM.
              Section 29. GOVERNING LAW. This Agreement and your Account will be
         governed by and interpreted in accordance with the laws of the United States and, to the
         extent governed by state law, the laws of the State of Arizona, regardless of where you
         live or where you use the Account. This Agreement is entered into in Arizona.”
¶5       The credit card agreement between Sears and plaintiffs in effect as of March 2003 differs
     in several respects from the version in effect in 2000. The 2003 agreement places “the
     establishment, operating, handling or termination of the Account” and “any transaction or
     attempted transaction relating to the Account” expressly within the scope of the arbitration
     provision. The arbitrator need only have 10 years’ experience in the practice of law.
     Moreover, the arbitration provision specifies it will not apply to “claims of a class certified
     prior to the effective date of [the] Agreement.” The arbitration provision will apply to all
     other claims, including class claims not yet certified. In addition, the 2003 version of the
     credit card agreement further provides that arbitration will be administered by NAF, the
     American Arbitration Association or JAMS, in accordance with their respective rules.2
¶6       Furthermore, the 2003 version of the credit card agreement provides:
         “Whoever files the arbitration pays the initial filing fee. If we file, we pay; if you file; you
         pay, unless you get a fee waiver under the applicable rules of the arbitration firm. If you
         have paid the initial filing fee and you prevail, we will reimburse you for that fee. If there
         is a hearing, we will pay any fees of the arbitrator and arbitration firm for the first day of
         that hearing. All other fees will be allocated as provided by the rules of the arbitration
         firm and applicable law. However, we will advance or reimburse your fees if the
         arbitration firm or arbitrator determines there is good reason for us to do so, or if you ask
         us in writing and we determine there is a good reason for doing so. Each party will bear
         the expense of that party’s attorneys experts and witnesses, and other expenses,
         regardless of which party prevails, but a party may recover any or all expenses from
         another party if the arbitrator, applying applicable law, so determines.”
¶7       Sears answered plaintiffs’ complaints, as amended, and asserted affirmative defenses. In
     the Bovay lawsuit, Sears asserted plaintiffs’ claims were barred by: a statute of limitation;
     laches, waiver and estoppel; and various failures to allege sufficient facts to state claims for
     relief. In the Triezenberg and Clark lawsuits, Sears asserted similar defenses and also
     asserted the alleged disclosure of customer data was protected by federal law. Sears did not
     assert a right to arbitration in these answers. Subsequently, plaintiffs further amended their


             2
              NAF, as noted in the Sears agreements, is an acronym for the National Arbitration Forum.
     JAMS was an acronym for Judicial Arbitration and Mediation Services, Inc. See
     http://www.jamsadr.com/about-the-jams-name/.

                                                 -4-
       complaints in all three lawsuits to seek punitive damages. Sears again answered and raised
       affirmative defenses to the claims for punitive damages, but did not assert a right to arbitrate
       plaintiffs’ claims.
¶8          The record on appeal does not contain the motions to dismiss Sears filed pursuant to
       section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2004)). The
       supplemental record on appeal includes a June 9, 2005, order granting the motions to dismiss
       in part and denying them in part. In the order, the circuit court struck allegations regarding
       the misappropriation of names and likenesses from the invasion of privacy claim in the
       Bovay lawsuit. The circuit court also granted the motion to dismiss the breach of contract
       claims in the Triezenberg and Clark lawsuits without prejudice.
¶9          The record on appeal also does not contain plaintiffs’ consolidated motion for class
       certification. The supplemental record on appeal includes a February 19, 2008, order granting
       plaintiffs’ consolidated motion for class certification in part, denying the motion in part, and
       directing plaintiffs to revise their proposed class definition, which the circuit court found to
       be overly broad. The supplemental record on appeal also includes an April 7, 2008, order
       approving a class definition of all persons and entities in the United States, excluding
       members of a California class action, who, between September 9, 1995, and June 22, 2001,
       held a Sears credit card and had certain information disclosed to any third-party vendor with
       whom Sears had agreements under which Sears would receive money, directly or indirectly
       from sales made by the third parties to Sears credit card holders.
¶ 10        Sears petitioned for review of the circuit court’s certification of the class. The petition
       was denied by this court and later by the Illinois Supreme Court. See Clark v. Sears, Roebuck
       & Co., 229 Ill. 2d 664 (2008) (table).
¶ 11        The record on appeal does not contain Sears’s motion to seek review in this court
       pursuant to Illinois Supreme Court Rule 308(a) (eff. Feb. 1, 1994). The supplemental record
       on appeal, however, includes a January 13, 2009, order denying said motion. The
       supplemental record on appeal also includes an April 30, 2009, order approving plaintiffs’
       plan for notice to the class, which included the publication of a press release in one weekend
       and one weekday edition of the USA Today newspaper, as well as the establishment of a
       website on the Internet allowing public access to the operative complaints and orders entered
       in the litigation.
¶ 12        On August 19, 2011, Sears filed a motion to compel arbitration and stay the proceedings
       pursuant to section 3 of the Federal Arbitration Act (FAA) (9 U.S.C. § 3 (1994)). Sears
       asserted the United States Supreme Court decision in AT&T Mobility, LLC v. Concepcion,
       563 U.S. ___, 131 S. Ct. 1740 (2011), established for the first time that Sears had a known,
       existing right to compel arbitration of plaintiffs’ individual claims and avoid class arbitration.
       According to the motion, Sears served demands for arbitration on plaintiffs on August 10,
       2011, and was notified of plaintiffs’ refusal to arbitrate on August 17, 2011.
¶ 13        Plaintiffs filed a response in opposition to the motion to compel arbitration on September
       27, 2011. Plaintiffs argued Sears waived any right to arbitration by actively and aggressively
       litigating these cases for nearly a decade. Plaintiffs also argued Sears could not demonstrate
       asserting the right to arbitrate would have been futile under Illinois or Arizona law during


                                                  -5-
       the period prior to the Concepcion decision. Plaintiffs further argued Concepcion did not
       excuse Sears’s waiver of arbitration. In addition, plaintiffs argued: (1) the 2003 version of
       the Sears credit card agreement did not apply to this litigation; (2) the 2000 version of the
       agreement was unenforceable because NAF was barred from arbitrating cases between
       consumers and businesses by a Minnesota consent decree; and (3) Sears’s arbitration clause
       is unconscionable under both Arizona and Illinois law.
¶ 14       Sears filed a reply in support of the motion on November 1, 2011. Plaintiffs filed their
       surreply opposing arbitration on November 28, 2011.
¶ 15       The record further contains a transcript of proceedings for August 11, 2011, regarding
       the motion to compel arbitration, as well as a motion by Sears to strike exhibits related to
       plaintiffs’ motion for summary judgment.3 Sears objected to plaintiffs’ use of a settlement
       agreement apparently reached in the California class action to support their motion for
       summary judgment. The court ruled it would disregard any use of the settlement agreement
       to imply any liability of Sears in the matter. The court did not rule on the motion to compel
       arbitration at that time.
¶ 16       On February 22, 2012, after hearing argument, the circuit court denied the motion to
       compel arbitration. The circuit court recited the reasons for its decision. The circuit court
       found that in the years between the filing of plaintiffs’ complaints and the decision in
       Concepcion, there was “extensive litigation” in this case, involving dispositive motions
       challenging the pleadings, answers and affirmative defenses, the motion for class
       certification (which required discovery, briefing and a hearing), attempts to seek review of
       the class certification, the parties’ cross-motions for partial or total summary judgment, and
       additional discovery matters which remained pending. The circuit court also referred to
       “conferences, including those even held by the [c]ourt for the purposes of trying to resolve
       this matter at an early date.” Sears failed to file any affidavit to explain why it had not sought
       arbitration at an earlier date.
¶ 17       The circuit court rejected the argument that it would have been futile for Sears to assert
       their right to arbitrate prior to the Concepcion decision. The circuit court found Sears acted
       inconsistently with its right to arbitrate in the litigation. The circuit court also found plaintiffs
       would suffer prejudice at this stage of the litigation if the motion to compel arbitration was
       granted, “particularly in view of the litigation efforts, as well as mediation efforts, that the
       parties have engaged in throughout this litigation.” Accordingly, the circuit court ruled Sears
       waived its right to arbitrate the claims involved in this litigation.
¶ 18       In addition, the circuit court ruled plaintiffs’ claims were governed by the 2003 version
       of the Sears credit card agreement, with the exception of Woods, whose claims were
       governed by the 2000 version of the agreement. The circuit court further ruled plaintiffs
       failed to demonstrate the credit card agreements were unconscionable under either Arizona


               3
               Plaintiffs assert they filed a consolidated motion for summary judgment on July 22, 2010,
       and Sears filed its response and cross-motion for summary judgment on March 30, 2011. Plaintiffs,
       however, cite to their own response opposing the motion to compel arbitration, which does not
       mention these dates.

                                                   -6-
       or Illinois law. Moreover, the court specifically ruled the unavailability of NAF as a forum
       did not render the 2000 agreement as unenforceable.
¶ 19       The circuit court entered a written order on February 22, 2012, denying the motion to
       compel arbitration and stay proceedings. On March 22, 2012, Sears filed a notice of
       interlocutory appeal to this court.

¶ 20                                          DISCUSSION
¶ 21       On appeal, Sears contends the circuit court erred in ruling Sears waived its right to
       arbitrate and its assertion of the right to arbitrate was untimely. Plaintiffs argue the circuit
       court did not err on these points. Plaintiffs also assert alternate grounds to affirm, arguing,
       as they did in the circuit court: (1) the 2003 version of the Sears credit card agreement did
       not apply to this litigation; (2) the 2000 version of the agreement was unenforceable because
       NAF was barred from arbitrating cases between consumers and businesses; and (3) Sears’s
       arbitration clause is unconscionable under both Arizona and Illinois law.

¶ 22                                  I. The Standard of Review
¶ 23        The parties disagree regarding the proper standard of review of this interlocutory appeal.
       Sears maintains the standard of review is de novo, while plaintiffs argue the standard is
       whether the trial court abused its discretion in denying the motion to compel arbitration.
¶ 24        This court has jurisdiction to review the circuit court’s order denying the motion to
       compel arbitration pursuant to Illinois Supreme Court Rule 307(a)(1) (eff. Feb. 26, 2010).
       See, e.g., Glazer’s Distributors of Illinois, Inc. v. NWS-Illinois, LLC, 376 Ill. App. 3d 411,
       419 (2007) (citing Weiss v. Waterhouse Securities, Inc., 208 Ill. 2d 439, 448 (2004)). The
       rule generally allows for appeals from denial of injunctive relief. Glazer’s Distributors of
       Illinois, Inc., 376 Ill. App. 3d at 423. This court has “split on the issue of whether an abuse
       of discretion standard or de novo standard applies to cases such as this one.” Id. A number
       of decisions from the First District of this court have determined an abuse of discretion
       standard applies to a review of the circuit court’s decision regarding waiver of arbitration
       rights. Id. (and cases cited therein). In contrast, “[t]he Second, Third, and Fifth Districts of
       this court have determined that a de novo review is appropriate where the circuit court has
       determined the issue of waiver of the right to arbitration because the circuit court in such
       instances reviews undisputed facts and makes a waiver determination as a matter of law.” Id.
       (and cases cited therein).
¶ 25        This split in authority may be reconciled by reference to general principles established
       by our supreme court. “[I]n an interlocutory appeal, the scope of review is normally limited
       to an examination of whether or not the trial court abused its discretion in granting or
       refusing the requested interlocutory relief.” In re Lawrence M., 172 Ill. 2d 523, 526 (1996).
       “However, where the question presented is one of law, a reviewing court determines it
       independently of the trial court’s judgment.” Id. Moreover, “ ‘where the exercise of
       discretion has been frustrated by the application of an erroneous rule of law, review is
       required to permit the exercise in a manner “consistent with the law.” ’ ” Loyola Academy
       v. S&S Roof Maintenance, Inc., 146 Ill. 2d 263, 274 (1992) (quoting People v. Brockman,

                                                 -7-
       143 Ill. 2d 351, 363 (1991)).
¶ 26       Accordingly, in interlocutory appeals of orders denying a motion to compel arbitration,
       questions of law are reviewed de novo, while any findings of fact are reviewed for an abuse
       of discretion in light of a proper understanding of the law. This approach is generally
       consistent with the standards of review applied by federal courts in cases involving the
       waiver of the right to arbitrate. See LAS, Inc. v. Mini-Tankers, USA, Inc., 342 Ill. App. 3d
       997, 1001 (2003) (and cases cited therein). De novo consideration means we perform the
       same analysis a trial judge would perform. Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564,
       578 (2011). An abuse of discretion occurs only when the ruling is arbitrary, fanciful, or
       unreasonable, or when no reasonable person would take the same view. See People v.
       Ortega, 209 Ill. 2d 354, 359 (2004); People v. Illgen, 145 Ill. 2d 353, 364 (1991).

¶ 27                             II. Waiver of the Right to Arbitrate
¶ 28       The FAA governs the enforceability of arbitration agreements in contracts involving
       interstate commerce. In re Toyota Motor Corp. Hybrid Brake Marketing, Sales, Practices
       & Products Liability Litigation, 828 F. Supp. 2d 1150, 1157 (C.D. Cal. 2011) (Toyota); see
       9 U.S.C. § 1 et seq. (1994). Section 3 of the FAA provides:
               “If any suit or proceeding be brought in any of the courts of the United States upon
           any issue referable to arbitration under an agreement in writing for such arbitration, the
           court in which such suit is pending, upon being satisfied that the issue involved in such
           suit or proceeding is referable to arbitration under such an agreement, shall on
           application of one of the parties stay the trial of the action until such arbitration has been
           had in accordance with the terms of the agreement, providing the applicant for the stay
           is not in default in proceeding with such arbitration.” 9 U.S.C. § 3 (1994).
       Generally, under the FAA, “courts shall stay further proceedings and order arbitration if: (1)
       a valid agreement to arbitrate exists, and the (2) the agreement encompasses the dispute at
       issue.” Toyota, 828 F. Supp. 2d at 1157. The first issue is generally a question of state law,
       while the second issue is generally one of federal substantive law.4 Id. at 1157-58. “Although
       the FAA favors the enforcement of private arbitration agreements, 9 U.S.C. § 2, the court
       may refuse to enforce an arbitration agreement on the ground that the party seeking
       enforcement has waived such right.” Toyota, 828 F. Supp. 2d at 1162 (and cases cited
       therein). Nevertheless, “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 Memorial Hospital v. Mercury Construction Corp.,
       460 U.S. 1, 24-25 (1983).
¶ 29       Federal courts considering purported waivers of the right to arbitrate have employed a

               4
                 Regarding the second issue, the parties may contract otherwise. See Volt Information
       Sciences, Inc. v. Board of Trustees of Leland Stanford Junior University, 489 U.S. 468, 479 (1989).
       In this case, however, both versions of the Sears credit card agreement in this case contain arbitration
       clauses which refer to the FAA.

                                                     -8-
       variety of overlapping approaches to the issue. E.g., In re Pharmacy Benefit Managers
       Antitrust Litigation, 700 F.3d 109, 117 (3d Cir. 2012) (and cases cited therein); Louisiana
       Stadium & Exposition District v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 626 F.3d 156,
       159 (2d Cir. 2010) (and cases cited therein); Johnson Associates Corp. v. HL Operating
       Corp., 680 F.3d 713, 717 (6th Cir. 2012) (and cases cited therein); In re Tyco International
       Ltd. Securities Litigation, 422 F.3d 41, 44 n.2 (1st Cir. 2005); Fisher v. A.G. Becker Paribas
       Inc., 791 F.2d 691, 694 (9th Cir. 1986). Indeed, some of these federal courts stress a
       determination of waiver must be based on the circumstances and context of the particular
       case. In re Pharmacy Benefit Managers Antitrust Litigation, 700 F.3d at 118; In re Tyco
       International Ltd. Securities Litigation, 422 F.3d at 44 (citing Cabinetree of Wisconsin, Inc.
       v. Kraftmaid Cabinetry, Inc., 50 F.3d 388, 390 (7th Cir. 1995)).
¶ 30       In this litigation, Sears adopts the approach taken by the Ninth Circuit, which holds “[a]
       party seeking to prove waiver of a right to arbitration must demonstrate: (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.” Fisher, 791
       F.2d at 694. Plaintiffs have not urged this court to adopt any alternative approach, but
       structure their response to meet the points Sears asserts. Although federal case law
       demonstrates a number of factors may be considered, the Ninth Circuit’s approach is
       sufficiently broad for the purposes of this opinion. Accordingly, we turn to consider the
       factors discussed in Fisher.

¶ 31                      A. Knowledge of an Existing Right to Arbitrate
¶ 32       Sears does not deny the plain language of the agreements at issue grants Sears a right to
       demand arbitration. Rather, Sears argues it could not have successfully relied on the
       agreements to demand arbitration until the Supreme Court issued its decision in Concepcion.
       Thus, Sears asserts until the arrival of Concepcion, Sears did not “know” it had the right to
       demand arbitration.
¶ 33       In this regard, Sears believes this case is similar to Fisher. The Ninth Circuit in Fisher
       examined whether a defendant’s decision not to file a motion to compel arbitration prior to
       the Supreme Court’s rejection of the intertwining doctrine–which held when it was
       impractical or impossible to separate nonarbitrable from arbitrable contract claims, a court
       should deny arbitration in order to preserve its exclusive jurisdiction over federal securities
       claims–constituted waiver. See Fisher, 791 F.2d at 695. Prior to the Supreme Court’s
       decision in Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213 (1985), the Ninth Circuit had
       approved of the intertwining doctrine and had said in De Lancie v. Birr, Wilson & Co., 648
       F.2d 1255 (9th Cir. 1981), arbitration should be denied where common law claims are
       intertwined with securities law violations. Fisher, 791 F.2d at 693. The defendant relied on
       the doctrine and the Ninth Circuit’s decision in De Lancie in deciding not to file a motion
       to compel arbitration, because it would have been “futile” prior to the Supreme Court’s
       ruling in Byrd. Id. The Ninth Circuit concluded there was no waiver in Fisher because the
       defendant was entitled to rely on the intertwining doctrine and that court’s prior decisions
       in deciding it would be futile to file a motion to compel arbitration. Id. Because the


                                                 -9-
       arbitration agreement was unenforceable before the Supreme Court’s decision in Byrd, the
       Ninth Circuit held the defendant did not act inconsistently with a known existing right to
       compel arbitration and had not waived the right to arbitration. Id. at 697.
¶ 34       Sears argues Concepcion wrought a similar change in the law. In Discover Bank v.
       Superior Court, 113 P.3d 1100 (Cal. 2005), the California Supreme Court held certain class
       action arbitration waivers were unconscionable under California law and should not be
       enforced. Id. at 1110 (quoting Cal. Civil Code § 1668 (West 1998)). In Concepcion, the
       United States Supreme Court abrogated the holding in Discover Bank, explaining the
       “overarching purpose” of the FAA is to “ensure the enforcement of arbitration agreements
       according to their terms so as to facilitate streamlined proceedings” and requiring the
       availability of classwide arbitration “interferes with fundamental attributes of arbitration.”
       Concepcion, 563 U.S.___, 131 S. Ct. at 1748. Accordingly, the Concepcion Court concluded
       the Discover Bank rule was preempted by the FAA. Id. at ___, 131 S. Ct. at 1753.
¶ 35       Sears argues, similar to the defendant in Fisher, it did not act inconsistently with a known
       existing right to compel arbitration. The Ninth Circuit, however, rejected a similar argument
       after the Concepcion decision. In Gutierrez v. Wells Fargo Bank, NA, 704 F.3d 712, 721 (9th
       Cir. 2012), the court ruled the futility of an arbitration demand prior to Concepcion was not
       clear cut. The Ninth Circuit noted “[i]n contemporaneous consumer litigation, litigants did
       succeed in compelling arbitration despite the existence of the Discover Bank rule.” Id. (citing
       cases). The Gutierrez court concluded, “[e]specially because the [customer account
       agreement] did not prohibit class arbitration, a motion to compel arbitration was not
       inevitably futile under the prescribed case-by-case analysis.” Id.
¶ 36       Similarly, in Garcia v. Wachovia Corp., 699 F.3d 1273 (11th Cir. 2012), the Eleventh
       Circuit rejected the argument that any motion to compel arbitration would have been futile
       before the Supreme Court decided Concepcion. According to Garcia, “absent controlling
       Supreme Court or circuit precedent foreclosing a right to arbitrate, a motion to compel
       arbitration will almost never be futile.” Id. at 1278. The Garcia court also rejected a more
       lenient “unlikely to succeed” standard, reasoning it would only encourage litigants to delay
       arbitration and undermine one of the basic purposes of arbitration, i.e., the fast inexpensive
       resolution of disputes. Id. at 1279. Adopting the Eighth Circuit’s position, the Eleventh
       Circuit concluded “a party must move to compel arbitration whenever ‘it should have been
       clear to [the party] that the arbitration agreement was at least arguably enforceable.’ ” Id. at
       1278 (quoting Southeastern Stud & Components, Inc. v. American Eagle Design Build
       Studios, LLC, 588 F.3d 963, 967 (8th Cir. 2009)).
¶ 37       The District of Coulmbia Circuit took an analogous position in National Foundation for
       Cancer Research v. A.G. Edwards & Sons, Inc., 821 F.2d 772 (D.C. Cir. 1987), which, like
       Fisher, addressed waiver of the right to arbitrate prior to the Byrd Court’s rejection of the
       “intertwining doctrine.” The District of Coulmbia Circuit noted it had never adopted the
       “intertwining doctrine,” either explicitly or by implication. Id. at 776. Accordingly, the
       defendant “had no reason to believe that its right to arbitration was unenforceable.” Id. at
       776-77. Moreover, as the District of Coulmbia Circuit observed, “only three circuits had
       followed the intertwining doctrine, while three other circuits had expressly rejected it.” Id.
       at 777 (citing Byrd, 470 U.S. at 216-17). The court ruled: “[i]n this legal climate, we fail to

                                                -10-
       see how [defendant’s] assertion of its right to arbitrate the claims covered by its agreement
       with [plaintiff] would have been futile.” Id.
¶ 38       The cases cited by Sears do not compel a contrary conclusion. Sears relies on Curtis
       Publishing Co. v. Butts, 388 U.S. 130 (1967), which considered whether Curtis’s failure to
       raise constitutional defenses in a libel case prior to New York Times Co. v. Sullivan, 376 U.S.
       254 (1964), amounted to a knowing waiver. The Court generally stated “the mere failure to
       interpose such a defense prior to the announcement of a decision which might support it
       cannot prevent a litigant from later invoking such a ground.” Curtis Publishing Co., 388 U.S.
       at 143. In rejecting the waiver argument, however, the Court reasoned in relevant part:
           “Although our decision in New York Times did draw upon earlier precedents in state law
           [citation], and there were intimations in a prior opinion and the extra-judicial comments
           of one Justice, that some applications of libel law might be in conflict with the guarantees
           of free speech and press, there was strong precedent indicating that civil libel actions
           were immune from general constitutional scrutiny. Given the state of the law prior to our
           decision in New York Times, we do not think it unreasonable for a lawyer trying a case
           of this kind, where the plaintiff was not even a public official under state law, to have
           looked solely to the defenses provided by state libel law.” Id. at 143-44.
       Thus, the Court rejected waiver because the state of the law prior to New York Times
       indicated civil libel actions were immune from general constitutional scrutiny. Accordingly,
       Curtis does not support Sears’s position.
¶ 39       Sears also cites Big Horn County Electric Cooperative, Inc. v. Adams, 219 F.3d 944, 954
       (9th Cir. 2000). In that case, however, the Ninth Circuit observed Strate v. A-1 Contractors,
       520 U.S. 438 (1997), implicitly overruled Burlington Northern R.R. Co. v. Blackfeet Tribe
       of the Blackfeet Indian Reservation, 924 F.2d 899, 904 (9th Cir. 1991). Big Horn County
       Electric Cooperative presented a situation similar to Curtis, in which it would have been
       futile to assert an argument in light of the then-prevailing case law. Thus, Big Horn County
       Electric Cooperative is also consistent with the Ninth Circuit’s later opinion in Gutierrez.
¶ 40       Sears next cites Ackerberg v. Johnson, 892 F.2d 1328 (8th Cir. 1989), in which the
       Eighth Circuit stated “especially in cases in which any delay in making a motion to compel
       arbitration is based on unfavorable or uncertain law, waiver should not be found.” Id. at
       1332. More recently, in Southeastern Stud & Components, Inc., the Eighth Circuit discussed
       this aspect of Ackerberg:
                “AEDBS points to Ackerberg v. Johnson, 892 F.2d 1328 (8th Cir. 1989), in support
           of its argument that it did not knowingly waive its right to arbitrate because the ‘delay
           in filing a motion to compel arbitration was based on unfavorable or uncertain law.’
           (Appellant’s Br. at 22.) In Ackerberg, the defendants failed to file a motion to compel
           arbitration on a claim related to the Securities Act of 1933, 15 U.S.C. §§ 77a to 77aa, in
           spite of an arbitration agreement. Ackerberg, 892 F.2d at 1332. At the time the complaint
           was filed, the issue was controlled by Wilko v. Swan, 346 U.S. 427, 74 S. Ct. 182, 98 L.
           Ed. 168 (1953), which prohibited arbitration of claims made under the 1933 Act.
           However, after the complaint was filed, the Supreme Court reversed Wilko in Rodriguez
           de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484, 109 S. Ct. 1917, 104


                                                -11-
           L. Ed. 2d 526 (1989). After Rodriguez de Quijas, the defendants moved to compel
           arbitration on the 1933 Act claims, but the district court held that the defendants waived
           their right to arbitration by acting inconsistently with their right to arbitration by
           participating in the litigation process. Ackerberg, 892 F.2d at 1331. We disagreed,
           explaining that before Rodriguez de Quijas, the defendants correctly relied on Wilko for
           the proposition that their 1933 Act claims were not arbitrable, and a motion to compel
           arbitration on those claims would have been futile. Id. at 1332. Because the defendants
           moved to compel arbitration ‘as soon as the law appeared to allow an arbitration
           procedure’ and because any motion to compel arbitration prior to that would have been
           futile, we held that the defendants did not waive their right to arbitrate the 1933 Act
           claims. Id. at 1333.” Southeastern Stud & Components, Inc., 588 F.3d at 968.
       Given this discussion, it appears the Eighth Circuit no longer adheres to the Ackerberg dicta
       regarding “uncertain” law. See Garcia, 699 F.3d at 1278 (quoting Southeastern Stud &
       Components, Inc., 588 F.3d at 967).
¶ 41       Sears further cites Fisher, overlooking the Ninth Circuit’s subsequent rejection of its
       argument in Gutierrez.
¶ 42       In addition, Sears relies on a number of unpublished federal district court decisions. In
       the interest of uniformity, Illinois courts give considerable weight to the decisions of lower
       federal courts interpreting federal statutes. State Bank of Cherry v. CGB Enterprises, Inc.,
       2013 IL 113836, ¶ 35. However, this court has often declined to consider unpublished federal
       decisions. See, e.g., Horwitz v. Sonnenschein Nath & Rosenthal, LLP, 399 Ill. App. 3d 965,
       976 (2010); Burnette v. Stroger, 389 Ill. App. 3d 321, 329 (2009). In this case, the published
       federal appellate decisions obviate any need to consider unpublished federal district court
       decisions.5
¶ 43       In short, the question of whether Sears had a known right to arbitrate turns on the
       question of whether it would have been futile for Sears to invoke its right to arbitration prior
       to the decision in Concepcion. Absent controlling precedent foreclosing a right to arbitrate,
       a motion to compel arbitration will almost never be futile. See Garcia, 699 F.3d at 1278.
       Thus, “a party must move to compel arbitration whenever ‘it should have been clear to [the
       party] that the arbitration agreement was at least arguably enforceable.’ ” Id. (quoting
       Southeastern Stud & Components, Inc., 588 F.3d at 967). Accordingly, we examine whether
       the agreements at issue were at least arguably enforceable under the controlling law at the
       outset of this litigation.
¶ 44       As previously noted, the question of whether a valid agreement to arbitrate exists is


               5
                 For the purpose of completeness, we note: (1) two of the unreported decisions cited are
       from the Northern District of California and conflict with the Ninth Circuit’s decision in Guitierrez;
       (2) two more unreported decisions predate 2007 and thus cannot be cited as precedent even in federal
       court (Fed. R. App. P. 32.1); (3) the remaining unreported decision, Valentine v. WideOpen West
       Financial, LLC, No. 09-C-07653, 2012 WL 1021809 (N.D. Ill. Mar. 26, 2012), addresses the waiver
       issue in a single paragraph and runs contrary to the detailed analyses found in the federal appellate
       decisions previously discussed in this opinion.

                                                   -12-
       generally a question of state law. Toyota, 828 F. Supp. 2d at 1157-58. The credit card
       agreements in this case specifically provide they are entered into in the state of Arizona and,
       to the extent state law applies, the law of Arizona is to be applied. Hutcherson v. Sears
       Roebuck & Co., 342 Ill. App. 3d 109, 116 (2003).
¶ 45       In its brief, Sears acknowledges “[t]here is a dearth of Arizona law addressing the
       enforceability of arbitration provisions that include class action waivers.” In fact, Sears does
       not cite any decision from any Arizona state court addressing the issue. Instead, Sears
       discusses cases from other courts addressing the issue. Moreover, not all of these other courts
       were required to attempt to apply Arizona law to decide the enforceability of the arbitration
       provisions including class action waivers. Three of these cases, however, involved Sears
       asserting its right to enforce arbitration agreements similar to those at issue in this litigation.
¶ 46       For example, in Vigil v. Sears National Bank, 205 F. Supp. 2d 566 (E.D. La. 2002), the
       plaintiff consumer argued an arbitration clause similar to the one in this case was
       unconscionable because it eliminated the right to a jury trial and the right to bring a class
       action. Id. at 569. Sears argued both federal and Arizona law mandated the enforcement of
       the arbitration clause. Id. The Vigil court also noted “plaintiff can cite to no court decision
       that has found such clauses to be unconscionable for the argued reasons under Arizona or any
       other law.” Id. at 573. Thus, relying on decisions from the Eleventh Circuit and a federal
       district court in Texas, the Vigil court concluded the arbitration clause was not
       unconscionable under Arizona law. Id.
¶ 47       In Szetela v. Discover Bank, 118 Cal. Rptr. 2d 862 (Cal. Ct. App. 2002), the California
       Court of Appeal ruled the class action waiver in the defendant credit card company’s
       arbitration agreement was both procedurally and substantively unconscionable under
       California law. Faced with the options of either closing his account or accepting the credit
       card company’s “take it or leave it” terms, plaintiff, the Szetela court ruled, established
       procedural unconscionability despite the fact he could have simply taken his business
       elsewhere. Id. at 867. The Szetela court also held the class action waiver was substantively
       unconscionable because it gave the advantage to the bank, where customers such as the
       proposed class members would be essentially prevented “from seeking redress for relatively
       small amounts of money, such as the $29 sought by [the plaintiff].” Id. The court found this
       “manner of arbitration” was harsh and unfair, and violated both the legislature’s stated policy
       of discouraging unfair business practices, as well as the public policy of promoting judicial
       economy, which the court noted is inherent in the procedural mechanism of the class action.
       Id. at 868.
¶ 48       In Hutcherson, the issue was whether an amendment to a Sears credit card agreement
       adding arbitration clauses similar to those in this case was unconscionable. Similar to Vigil,
       “[n]either party cite[d] to, nor did we find, an Arizona case addressing whether an
       amendment adding an arbitration agreement to a credit card agreement such as the one here
       was unconscionable.” Hutcherson, 342 Ill. App. 3d at 117. This court, citing federal cases
       from other jurisdictions, as well as decisions from Alabama and Ohio, ruled the addition of
       the arbitration provision was not procedurally unconscionable under Arizona law. Id. at 118-
       20. The court, relying on Vigil and other decisions–and rejecting the reasoning of
       Szetela–also concluded the agreement, which included a class action waiver, was not so one-

                                                  -13-
       sided or oppressive as to render the agreement substantively unconscionable under Arizona
       law. Id. at 124.
¶ 49        In Sears Roebuck & Co. v. Avery, 593 S.E.2d 424 (N.C. Ct. App. 2004), the court, while
       acknowledging a lack of Arizona law on point, rejected the reasoning in Hutcherson and
       Vigil. Instead, the Avery court relied in part on California decisions regarding standardized
       contracts and modification of contracts. Id. at 429. The court concluded: “Because the
       arbitration clause was a wholly new term that did not fall within the universe of subjects
       included in the original agreement, Sears did not have authority under its ‘Change of Terms’
       provision to condition continued use of its credit card on acceptance of the arbitration
       clause.” Id. at 434.6
¶ 50        As discussed earlier, in 2005, the California Supreme Court, adopting the reasoning in
       Szetela, held certain class-action arbitration waivers were unconscionable under California
       law and should not be enforced. Discover Bank, 113 P.3d at 1110.
¶ 51        In Cooper v. QC Financial Services, Inc., 503 F. Supp. 2d 1266, 1286 (D. Ariz. 2007),
       the federal district court considered whether a class action waiver in an arbitration agreement
       was unconscionable under Arizona law. The Cooper court stated:
            “It is well-established among the Arizona courts that ‘if Arizona law has not addressed
            an issue, we “look approvingly to the laws of California,” especially when interpreting
            a similar or identical statute. The caveat to that principle, however, is that we “follow the
            California cases in so far as their reasoning is sound.” ’ ” Id. at 1285 (quoting Moore v.
            Browning, 50 P.3d 852, 860 (Ariz. 2002), quoting State v. Vallejos, 358 P.2d 178, 182
            (Ariz. Ct. App. 1960)).
       Thus, following Szetela and Discover Bank, the judge in Cooper concluded the class action
       waiver was unconscionable, severed the waiver and directed the action to proceed to class
       arbitration. Cooper, 503 F. Supp. 2d at 1290-01; see also In re DirecTV Early Cancellation
       Litigation, 738 F. Supp. 2d 1062, 1081 (C.D. Cal. 2010) (similarly concluding Arizona
       would follow California law on this issue).
¶ 52        Sears asserts “California case law was and still is the only and most valid predictor of
       how an Arizona court would decide this question under Arizona law.” Accordingly, Sears
       concludes Concepcion represented a change in Arizona law excusing its delay in seeking
       arbitration of the claims here.
¶ 53        The foregoing case law, however, points toward the opposite conclusion. The complaints
       at issue here were filed in 2001, 2002 and 2003. During this period, there was no controlling
       legal authority in Arizona regarding the enforceability of class action waivers in arbitration
       agreements. Moreover, in Vigil and Hutcherson, courts purporting to apply Arizona law to
       Sears credit card agreements held similar waivers were not unconscionable. Sears now
       seemingly disavows the very decisions Sears sought in Vigil and Hutcherson, claiming
       California law should have been applied instead. Sears overlooks Szetela was not decided


               6
               Given the nature of this case, we note in passing the Avery court also concluded in
       dicta Sears waived its right to arbitrate by filing suit against Avery. Id. at 434-35.

                                                 -14-
       when the complaint was filed in the Bovay litigation and was not adopted by the California
       Supreme Court until 2005, years after these complaints were filed. Sears also overlooks the
       fact that no Arizona state court ever adopted Szetela or Discover Bank. Sears cannot
       demonstrate it would have been futile for Sears to assert its right to arbitrate in these cases,
       given that Sears itself successfully defended at least two of three challenges to its arbitration
       agreements during the early years of this litigation. It should have been clear to Sears the
       arbitration agreements were at least arguably enforceable, which should have required Sears
       to move to compel arbitration.
¶ 54       In short, the circuit court did not err in ruling Sears knew of its right to arbitrate and
       could have asserted it for years after these complaints were filed, but decided against
       proceeding accordingly. Concepcion abrogated the holding in Discover Bank, and may affect
       future decisions regarding class action waivers, even outside California. Nevertheless, Sears
       has failed to demonstrate it would have been futile to assert its right to arbitrate prior to the
       decision in Concepcion.
¶ 55       Following oral argument in this case, Sears obtained leave to cite American Express Co.
       v. Italian Colors Restaurant, 570 U.S. ___, 133 S. Ct. 2304 (2013), as supplemental
       authority to argue: (1) “courts must ‘rigorously enforce’ arbitration agreements according to
       their terms” (id. at ___, 133 S. Ct. at 2309 (quoting Dean Witter Reynolds Inc., 470 U.S. at
       221)); and (2) the United States Supreme Court “specifically rejected the argument that class
       arbitration was necessary to prosecute claims ‘that might otherwise slip through the legal
       system’ ” (American Express Co., 570 U.S. at ___, 133 S. Ct. at 2312 (quoting Concepcion,
       563 U.S. at ___, 131 S. Ct. at 1753)).
¶ 56       Neither of these points, however, assists Sears. First, while courts are required to enforce
       arbitration agreements according to their terms, the agreements here provided: “Arbitration
       may be elected at any time, regardless of whether a lawsuit has been filed or not, unless ***
       the other party would suffer substantial prejudice as a result of the delay in demanding
       arbitration.” Thus, when the trial court found plaintiffs would suffer substantial prejudice as
       a result of Sears’s 10-year delay in demanding arbitration, it was rigorously enforcing a term
       of the arbitration agreement. American Express Co., 570 U.S. at ___, 133 S. Ct. at 2309
       (quoting Dean Witter Reynolds Inc., 470 U.S. at 221).
¶ 57       Second, while the United States Supreme Court “specifically rejected the argument that
       class arbitration was necessary to prosecute claims ‘that might otherwise slip through the
       legal system’ ” (American Express Co., 570 U.S. at ___, 133 S. Ct. at 2312 (quoting
       Concepcion, 563 U.S. at ___, 131 S. Ct. at 1753), the trial court did not decide these cases
       on this public policy ground. Instead, the trial court followed the letter of the agreement,
       ruling in part Sears’s delay in demanding arbitration created substantial prejudice to the
       plaintiffs. We now turn to consider whether the trial court erred in ruling the delay was
       substantially prejudicial to the plaintiffs.

¶ 58              B. Inconsistent Acts Resulting in Prejudice to the Opponent
¶ 59      Sears’s brief addresses the remaining factors discussed in Fisher, i.e., acts inconsistent
       with an existing right and prejudice to the party opposing arbitration resulting from such

                                                 -15-
       inconsistent acts, in an abbreviated fashion. Sears’s arguments largely proceed from the
       premise it did not have an existing right to arbitrate prior to Concepcion. As the circuit court
       did not err in ruling Sears had a known right to arbitrate from the inception of these lawsuits,
       the circuit court did not abuse its discretion in finding Sears’s acts were inconsistent with the
       known right. Given that Sears successfully asserted its right to arbitrate in Vigil and
       Hutcherson (and unsuccessfully asserted this right in Avery), the acts undertaken by Sears
       for nearly a decade of litigation in the circuit court are acts entirely inconsistent with a known
       right to demand arbitration. Indeed, while Sears now suggests Hutcherson was incorrect in
       its attempt to discern Arizona law on the enforceability of the class action waiver in its
       arbitration agreements, the decision of this court could not have been ignored by the circuit
       court in this litigation.
¶ 60        Sears additionally argues plaintiffs cannot demonstrate prejudice based on the time and
       money spent pursuing litigation plaintiffs initiated themselves. Sears primarily relies on
       Fisher, which refers to litigation expenses as a self-inflicted wound. Fisher, 791 F.2d at 698.
       The Fisher court, however, also noted plaintiffs in that case “were parties to an agreement
       making arbitration of disputes mandatory” and violated the agreement by filing their lawsuit.
       Id. In contrast, the credit card agreements here provide for arbitration upon election of either
       party. Accordingly, plaintiffs’ litigation expenses cannot be characterized as a self-inflicted
       wound in this case.
¶ 61        Lastly, Sears asserts in a footnote to its brief various litigation expenses currently
       incurred by plaintiffs ultimately would not be paid by plaintiffs. This assertion, however, is
       supported only by Sears’s reference to plaintiffs’ failure to contradict Sears’s prior assertion
       in their surreply to Sears’s reply brief on the motion to compel. On neither occasion did Sears
       present evidence or argument in support of its assertion.
¶ 62        The circuit court found plaintiffs were prejudiced in view of the extensive litigation and
       mediation which occurred during the first 10 years of these disputes. In determining whether
       the party opposing arbitration was prejudiced by delay, federal courts tend to consider: (1)
       timeliness or lack thereof of the motion to arbitrate; (2) extent to which the party seeking
       arbitration has contested the merits of the opposing party’s claims; (3) whether the party
       seeking arbitration informed its adversary of its intent to pursue arbitration prior to seeking
       to enjoin the court proceedings; (4) the extent to which a party seeking arbitration engaged
       in nonmerits motion practice; (5) the party’s acquiescence to the court’s pretrial orders; and
       (6) the extent to which the parties have engaged in discovery. See, e.g., In re Pharmacy
       Benefit Managers Antitrust Litigation, 700 F.3d at 117.
¶ 63        In this case, the record establishes Sears’s lengthy delay in seeking arbitration. The record
       sets forth that Sears filed a motion to dismiss and a cross-motion for summary judgment.
       Sears also participated in pretrial discovery, including depositions of the plaintiffs. The trial
       judge found Sears further participated in settlement and mediation conferences. Sears
       zealously litigated the class certification. Given this record, Sears’s unsupported assertion
       plaintiffs ultimately would not bear certain litigation expenses fails to establish the circuit
       court abused its discretion in finding plaintiffs were prejudiced in this case.
¶ 64        In short, Sears failed to demonstrate the circuit court erred in denying the motion to


                                                 -16-
       compel arbitration. Accordingly, we need not address the the parties’ alternative arguments
       on appeal.

¶ 65                                       CONCLUSION
¶ 66       In sum, we conclude the circuit court did not err in ruling Sears had a known right to
       demand arbitration when plaintiffs’ filed their complaints. Sears failed to establish it would
       have been futile for Sears to assert its right to arbitrate in these cases. Accordingly, the circuit
       court did not abuse its discretion in finding Sears acted inconsistently with its known right
       to arbitrate and prejudiced the plaintiffs by actively litigating the case for years. For all of the
       aforementioned reasons, the order of the circuit court of Cook County denying the motion
       to compel arbitration and stay proceedings is affirmed.

¶ 67       Affirmed.




                                                  -17-
