     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
CINDIUS ROMNEY as PERSONAL                   )
REPRESENTATIVE for the ESTATE                )     No. 74806-8-I
OF MICHAEL ROMNEY; FARON                     )
BAUER; and KRISTEN CHILDRESS,                )     DIVISION ONE
individually and on behalf of all others     )
similarly situated,                          )     PUBLISHED OPINION
                                             )
                     Appellants,             )
              v.                             )
FRANCISCAN MEDICALGROUP,a            )
Washington corporation; FRANCISCAN)                                                     —

HEALTH SYSTEM, a Washington          )
corporation; FRANCISCAN HEALTH       )
VENTURES, a Washington               )
corporation; FRANCISCAN              )                                                  .%
                                                                                        GO   <
NORTHWEST PHYSICIANS HEALTH )
NETWORK, LLC, a Washington           )
corporation; and CATHOLIC HEALTH )
INITIATIVES, a Colorado corporation, )
                                             )
                      Respondents.           )     FILED: July 10, 2017


       TRICKEY, A.C.J.   —   Michael Romney and several other medical professionals

              1 sued their former employer, Franciscan Medical Group (FMG),
(collectively Romney)

individually and on behalf of a putative class. In the first appeal in this case, Romney

argued that the arbitration agreements the employees had signed were unconscionable.

We disagreed. On remand, the superior court granted FMG’s motion to compel individual

arbitration rather than class arbitration.

       Romney argues in this second appeal that FMG waived its right to compel

individual arbitration. Because FMG’s conduct in the superior court and during the first

1
  For ease of reference, we refer to Michael Romney, the individual plaintiff, as Dr. Romney and
the putative class as Romney. Dr. Romney passed away during the litigation. His wife, Cindius
Romney, is participating in the case as the personal representative of his estate.
No. 74806-8-I /2

appeal was inconsistent with a right to compel individual arbitration, and the delay in

asserting the right prejudiced Romney, we agree. Accordingly, we reverse.

                                           FACTS

       We summarized the facts preceding the first appeal in Romney v. Franciscan

Medical Group, 186 Wn. App. 728, 349 P.3d 32, review denied, 184 Wn.2d 1004, 357

P.3d 666 (2015).

               Plaintiffs-respondents Michael Romney, MD, Faron Bauer, MD, and
       Kristen Childress, ARNP, are former employees of defendant-appellant
       Franciscan Medical Group (FMG). Each entered into an employment
       contract with FMG that included agreements to arbitrate all employment
       related disputes between the parties. The employees brought suit against
       FMG for damages, statutory penalties, and equitable relief for wage
       violations on behalf of themselves and the class of physicians, medical
       assistants, and nurse practitioners. Romney and Bauer brought individual
       claims for being fired in retaliation for whistle-blowing and for losing their
       hospital privileges.

               Romney, Bauer, and Childress filed suit in King County Superior
       Court and at the same time requested the court to find the arbitration
       agreement[s] signed by each of the parties to be unconscionable. FMG
       moved to compel arbitration. The trial court found the arbitration addendum
       unconscionable, invalidated it, and denied FMG’s motion to compel
       arbitration. FMG timely appeal[ed].

Romney, 186 Wn. App. at 733-34 (footnote omitted).

       While the first appeal was pending, Dr. Romney was diagnosed with terminal

cancer. Romney sought to engage in discovery, including discovery for the putative class.

FMG agreed to discovery for Dr. Romney’s individual claims, but opposed class discovery

at that time. FMG argued that class discovery was premature because the superior court

or an arbitrator might decline to certify the class.

       On February 17, 2015, this court held that the agreements were not

unconscionable and reversed the superior court. Romney, 186 Wn. App. at 733. Romney


                                               2
No. 74806-8-I I 3

petitioned the Supreme Court for review. On September 30, 2015, the Supreme Court

denied review. Romneyv. Franciscan Med. Grp., 184 Wn.2d 1004, 357 P.3d 666 (2015).

       On October 2, 2015, Romney attempted to start the arbitration process by reaching

out to an arbitrator the parties had discussed using before Romney filed suit in superior

court. FMG responded a few days later by inviting Romney to propose “three different

arbitrators for the three individual arbitrations.”
                                     2 Because the parties disagreed about the

availability of class arbitration, they returned to the courts.

       This court issued its mandate terminating the first appeal on November 13, 2015.

       On December 14, 2015, FMG moved to compel arbitration. This time, it asked the

court to compel individual arbitration, arguing that the arbitration agreements did not

indicate consent to class arbitration. The superior court granted the motion. Romney

appeals.

                                          ANALYSIS

                                   Surerior Court’s Authority

       Romney argues that the superior court erred by determining whetherthe arbitration

agreements permit class arbitration.       Romney contends that the availability of class

arbitration is an issue for the arbitrator. We conclude that it is a threshold issue of

arbitrability for the court to decide.

       While courts enforce a liberal policy favoring arbitration, the courts should usually

decide threshold questions of arbitrability. Howsam v. Dean Witter Reynolds, Inc., 537

U.S. 79, 83, 123 S. Ct. 588, 154 L. Ed. 2d 491 (2002). The court should decide questions


2
 Clerk’s Papers (CP) at 1558-59.
 The Federal Arbitration Act, 9 U.S.C. § 1-16, governs these arbitration agreements. Romney,
186 Wn. App. at 734. Accordingly, we must apply substantive federal law concerning arbitration.
    Romney, 186 Wn. App. at 734.
                                               3
No. 74806-8-I /4

where the

       contracting parties would likely have expected a court to have decided the
       gateway matter, where they are not likely to have thought that they had
       agreed that an arbitrator would do so, and, consequently, where reference
       of the gateway dispute to the court avoids the risk of forcing parties to
       arbitrate a matter that they may well not have agreed to arbitrate.

Howsam, 537 U.S. at 83-84.

       By contrast, procedural questions, which the court refers to an arbitrator, ‘“grow

out of the dispute and bear on its final disposition.” Howsam, 537 U.S. at 84 (quoting

John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 557, 84 5. Ct. 909, 11 L. Ed. 2d 898

(1964)). Courts will also refer to arbitration any dispute which the parties have clearly

and unmistakably agreed to submit to arbitration. See Howsam, 537         u.s. at 83.
       The Supreme Court has not yet determined whether the availability of class

arbitration is a threshold question of arbitrability for the court or a procedural question for

the arbitrator. In Green Tree Financial Corp. v. Bazzle, a plurality of the United States

Supreme Court held that the arbitrator should decide whether an agreement permitted

class arbitration. 539 U.S. 444, 453, 123 S. Ct. 2402, 2407, 156 L. Ed. 2d 414 (2003).

Since then, in Stolt-Nielsen S.A. v. AnimalFeeds International Core., the Supreme Court

has pointed out that, in Bazzle, only a plurality agreed on that point. 559 U.S. 662, 680-

81, 130 5. Ct. 1758, 176 L. Ed. 2d 605 (2010). But, in Stolt-Nielsen, the Court did not

revisit the issue because, there, the parties had expressly agreed to have an arbitration

panel decide whether the agreement permitted class arbitration. 559 U.S. at 680.

       The trend in federal courts since Stolt-Nielsen has been that the court should

decide whether class arbitration is available. All federal circuits that have addressed this




                                              4
No. 74806-8-I I 5

issue in published opinions have arrived at this same conclusion.
                                                      4 Most recently, the

Fourth Circuit concluded that a court should determine the availability of class arbitration

because of the “significant distinctions between class and bilateral arbitration.” Dell Webb

Communities, Inc. v. Carlson, 817 F.3d 867, 874-75 (4th Cir.), cert. denied sub nom. 137

S. Ct. 567 (2016).       The Fourth Circuit noted that class arbitration would reduce or

eliminate nearly all the benefits of bilateral arbitration. Dell Webb, 817 F.3d at 875. It

reasoned that the Supreme Court was “but a short step away” from announcing that this

was a question for the courts. Dell Webb, 817 F.3d at 875.

        We conclude that the availability of class arbitration is a gateway issue of

arbitrability.   The differences between class arbitration and bilateral arbitration are

significant enough that we cannot assume that the parties expected an arbitrator to decide

whether it was allowed. The question does not arise out of the underlying dispute over

wage violations and retaliation claims. The resolution of the issue should not impact the

final disposition of the dispute for each plaintiff. Thus, absent an agreement by the

parties, the issue of whether class arbitration is available is a gateway issue of arbitrability

properly decided by the superior court.

        Romney argues that Washington law requires a different outcome. In Washington,

courts must order the arbitration of all disputes “covered by the substantive scope” of an

enforceable arbitration agreement.         Townsend v. Quadrant Corp., 153 Wn. App. 870,

881, 224 P.3d 818 (2009). But Romney’s argument assumes that the availability of class



  See Reed Elsevier, Inc. ex rel. LexisNexis Div. v. Crockett, 734 F.3d 594, 597-99 (6th Cir. 2013)
(concluding that the courts should decide the question and suggesting that the Supreme Court
was close to completing its “puzzle” on the issue); Opalinski v. Robert Half Int’l Inc., 761 F.3d 326,
332 (3d Cir. 2014); see also Eshagh v. Terminix Int’l Co., L.P., 588 F. App’x 703, 704 (9th Cir.
2014)).
                                                  5
No. 74806-8-I /6

arbitration is within the scope of the agreements. We disagree because the question

whether the agreements permit class arbitration is a question about the scope of the

agreements itself. Therefore, Washington law does not dictate that an arbitrator decide

the question.

         Here, Romney claims that the parties agreed in the arbitration agreements to

submit to arbitration the issue of whether class arbitration was available. The agreements

incorporated the American Arbitration Association (AAA) rules. The supplemental rules

for class arbitration provide:

         Upon appointment, the arbitrator shall determine as a threshold matter, in a
         reasoned, partial final award on the construction of the arbitration clause,
         whether the applicable arbitration clause permits the arbitration to proceed
         on behalf of or against a class (the “Clause Construction Award”). The
         arbitrator shall stay all proceedings following the issuance of the Clause
         Construction Award for a period of at least 30 days to permit any party to
         move a court of competent jurisdiction to confirm or to vacate the Clause
         Construction Award J5]

         These rules apply

         where a party submits a dispute to arbitration on behalf of or against a class
         or purported class.  .   These [rules] shall also apply whenever a court
                                  .   .



         refers a matter pleaded as a class action to the AAA for administration.
                                                                   6

         The rules, by their own terms, apply only when the dispute is already submitted to

arbitration, not when the case is pending in front of a court. The rules also allow the

parties to seek judicial review immediately after the arbitrator’s decision on this issue.

The availability of judicial review suggests that the parties did not intend to have an

arbitrator make the final decision on this issue.

         We conclude that the parties’ agreement to have an arbitrator decide the question



    CP at 1358.
6
    CP at 1357.
                                               6
No. 74806-8-I /7

under some circumstances is not a clear and unmistakable agreement to have the court

refer the question to an arbitrator. Accordingly, it was not error for the superior court to

determine if the agreements permitted class arbitration.

                                Availability of Class Arbitration

       Romney argues that the arbitration agreements permit class action.
                                                                  7 Romney

contends that consent to class arbitration is implied by the failure to exclude class actions

explicitly from the arbitration agreements, despite specifically including employment

claims that are frequently brought as class actions. We conclude that the agreements do

not permit class arbitration because they are silent on the issue and we cannot infer

consent to submit to class arbitration from silence.

       “[A]rbitration is a matter of consent.” Stolt-Nielsen, 559 U.S. at 684. Arbitrators

derive their power “from the parties’ agreement to forgo the legal process and submit their

disputes” to arbitration. Stolt-Nielsen, 559 U.S. at 682. As with any contractual dispute,

the parties’ intentions control. Stolt-Nielsen, 559 U.S. at 682. Parties may choose which

issues they want to arbitrate and with whom they wish to arbitrate. Stolt-Nielsen, 559

U.S. at 683. Therefore, the court cannot compel parties to participate in class arbitration

without a contractual basis for concluding that they agreed to do so. Stolt-Nielsen, 559

U.S. at 684.

       An agreement to arbitrate disputes does not imply that the party agreed to class

arbitration of those disputes, because class arbitration significantly changes the nature of


     FMG points out, Romney did not raise this issue in their motion for discretionary review. They
also did not assign error to the superior court’s ruling on this issue, in violation of RAP 10.3. But
Romney did list this as a separate argument in their table of contents and devote several pages
to that argument in their brief. Romney also raised the issue below in their motion for
reconsideration to the trial court. Accordingly, we review the issue under RAP 12.1(a) and RAP
1.2(a).
                                                 7
No.74806-8-1/8

arbitration. Stolt-Nielsen, 559 U.S. at 685. When the arbitration agreement contains “‘no

agreement’” on the class arbitration question, the court cannot compel the parties to

submit to class arbitration. Stolt-Nielsen, 559 U.S. at 687.

       In Reed Elsevier, the Sixth Circuit held that an agreement did not permit class

arbitrations because it did not mention class actions at any point and limited its scope to

“claims ‘arising from or in connection with this Order,’ as opposed to other customers’

orders.” 734 F.3d 594, 599 (6th Cir. 2013). The court agreed with the plaintiff that the

agreement did not “expressly exclude the possibility of classwide arbitration,” but held

that was not enough in light of Stolt-Nielsen. Reed Elsevier, 734 F.3d at 600.

       Here, the parties agreed to arbitrate all of their claims. The agreements defined

claims as “all disputes arising out of or related to the Employment Agreement, your

employment by FMG, and/or your separation from employment with FMG.”
                                                               8                       The

agreements cover claims related to wage violations, which are frequently brought as class

actions. The agreements explicitly exclude certain types of claims, such as worker’s

compensation claims, or third-party claims that FMG might bring against Romney if a

party sued FMG because of Romney’s behavior. The parties agree that the arbitration

agreements do not mention class actions at any point.

       FMG argues that the agreements were intended to allow only individual arbitration

because they repeatedly refer to the employee in the singular and concern the rights of

individual signatories. Romney contends that these arguments are overly technical since

“you” can be singular or plural and this court has already ruled that the court could order

arbitration of claims against a nonsignatory when the claims were inherently inseparable.



CPat63.
8
                                             8
No. 74806-8-I /9

See Romney, 186 Wn. App. at 747.                  But, while Romney has shown that the class

members’ claims are similar, they have not shown that their claims are inherently

inseparable. Moreover, when viewed in context, the “You” in the agreements is clearly

9
singular.

       Romney also points out that class action lawsuits are generally available even

though contracts are usually written in the singular. But class action lawsuits, unlike class

arbitration, do not rely on the parties’ consent.            Thus, the similarity between these

agreements and agreements that often form the basis of class action lawsuits is not

evidence of FMG’s consent to class arbitration.

       Romney attempts to distinguish this case from Stolt-Nielsen by analogizing it to

Oxford Health Plans LLC v. Suffer,           —   U.S.—, 133 S. Ct. 2064, 2067-71, 186 L. Ed. 2d

113 (2013). Reliance on Oxford Health cannot help Romney. There, an arbitrator held

that an arbitration agreement that was silent on the subject of class arbitration permitted

class arbitration.         Oxford Health, 133 S. Ct. at 2067. The Court explicitly refused to

approve of the arbitrator’s interpretation of the contract. Oxford Health, 133 5. Ct. at

2070. It affirmed because the parties sought review of the arbitrator’s construction of the

agreement and the Court could not correct the arbitrator’s mistakes. Oxford Health, 133

S. Ct. at 2070-71. A concurrence by Justice Samuel Alito even noted that, if the Court

were reviewing the arbitrator’s decision de novo, it “would have little trouble concluding

that [the arbitrator] improperly inferred ‘[a]n implicit agreement to authorize class-action

arbitration.   .   .   from the fact of the parties’ agreement to arbitrate.” Oxford Health, 133 S.

Ct. at 2071 (Alito, J., concurring) (alterations in original) (quoting Stolt-Nielsen, 559 U.S.


 For example, at the top of the agreement, “You” is the name given to the singular “Physician.”
CP at 63.
                                                     9
No. 74806-8-I / 10

at 685).

       Finally, Romney argues that FMG’s delay in asserting a contractual right to compel

individual arbitration is evidence that it consented to class arbitration via the agreements.

A party’s “subsequent acts and conduct” may be of aid in interpreting that party’s intent.

Berg v. Hudesman, 115 Wn.2d 657, 677-78, 801 P.2d 222 (1990). In Berg, a tenant

offered proof that its landlord had accepted rent payments for years to argue against the

landlord’s interpretation of their lease agreement. 115 Wn.2d at 677. In Adler v. Fred

Lind Manor, the court noted that conduct was relevant to determining intent, but looked

only at the conduct surrounding the formation of the contract. 153 Wn.2d 331, 351-52,

103 P.3d 773 (2004).

       Romney does not cite any cases where the court determined the meaning of a

contract by looking at a party’s conduct during the litigation of the contract dispute. FMG’s

conduct during litigation is appropriate evidence for waiver, discussed next, but not

relevant to establishing its intent at the formation of the agreements.

       In short, Romney has not shown that FMG consented to class arbitration.

Accordingly, under Stolt-Nielsen, the trial court’s interpretation of the agreement was not

erroneous; FMG had a contractual right to avoid class arbitration. But, in order to enforce

that right, FMG had to timely assert it.

                                           Waiver

       Romney argues that FMG waived its contractual right to compel individual

arbitration because its conduct was inconsistent with an intent to assert the right and its

delay in asserting the right prejudiced Romney. We agree.

       “To establish waiver of the right to arbitration, the party opposing arbitration must


                                             10
No. 74806-8-I I 11

demonstrate ‘(I) 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.” Wiese v. Cach, LLC, 189 Wn. App. 466, 480, 358 P.3d 1213

(2015) (internal quotation marks omitted) (quoting Letizia v. Prudential Bache Sec., Inc.,

802 F.2d 1185, 1187 (9th Cir. 1986)).           “Waiver of an arbitration clause may be

accomplished expressly or by implication.” Canal Station N. Condo. Ass’n v. Ballard

Learv Phase II, LP, 179 Wn. App. 289, 297, 322 P.2d 1229 (2013). Whether a party

waived its right “by conduct depends on the facts of the particular case and is not

susceptible to bright line rules.” Canal Station, 179 Wn. App. at 298.

        We review a waiver determination de novo. Steele v. Lundgren, 85 Wn. App. 845,

850, 935 P.2d 671 (1997). Washington has a strong presumption in favor of arbitration.

Heights at lssaguah Ridge Owners Ass’n v. Burton Landscape Grp., Inc., 148 Wn. App.

400, 405, 200 P.3d 254 (2009). Accordingly, the party opposing arbitration bears a

“‘heavy burden” of showing that another party has waived its right to arbitrate. Wiese,

189 Wn. App. at 479 (internal quotation marks omitted) (quoting Steele, 85 Wn. App. at

852).

        Although the question here is whether FMG waived the right to compel a specific

type of arbitration, we approach this question the same way we would analyze whether a

party waived its right to compel arbitration in general. It is logical to analyze the right to

compel individual arbitration this way because it also stems from the arbitration

°
1
agreement.


10
  The right to compel arbitration is, essentially, a contractually created affirmative defense.
                                                                                           .




CR 8(c); Schuster v. Prestige Senior Mgmt., LLC, 193 Wn. App. 616, 634, 376 P.3d 412 (2016).
The difference between compelling arbitration of certain claims and compelling a certain type of
arbitration changes the analysis in some ways, but should lead to the same conclusions. For
                                              11
No. 74806-8-I / 12


       Knowledge

       This court presumes that someone who signs a document knows and understands

its contents. Kinsey v. Bradley, 53 Wn. App. 167, 171, 765 P.2d 1329 (1989). Here,

FMG’s right to compel individual arbitration stems from the arbitration agreements. No

one disputes that FMG prepared or signed the arbitration agreements. Therefore, we

presume that FMG knew its rights under the arbitration agreements.

       Inconsistent Acts

       FMG’s conduct was inconsistent with the intent to assert a right to compel

individual arbitration. First, FMG’s original motion to compel arbitration did not include

any objections to class arbitration. When Dr. Romney and the other plaintiffs filed this

action, they purported to act “individually and on behalf of all others similarly situated” and

                                                 11 Romney used the
titled their complaint “PLAINTIFFS’ CLASS ACTION COMPLAINT.”

putative class caption again when they moved to void and invalidate the arbitration

addendums.      In response, FMG filed a motion to compel arbitration.              FMG’s motion

adopted Romney’s caption and did not mention individual arbitration.

       FMG argues that it was proper to wait until the dispute over the enforceability of




example, a party waives its right to arbitration when it has substantially invoked “the judicial
process to the detriment or prejudice of the other party.” Wiese, 189 Wn. App. at 480 (internal
quotation marks omitted) (quoting Subway Equip. Leasing Corp. v. Forte, 169 F.3d 324, 326 (5th
Cir. 1999). FMG did not invoke the judicial process to decide the legal and factual issues it now
seeks to arbitrate.
         But, when FMG wanted a determination on the right to compel arbitration of those issues,
it was content to litigate against the putative class. Thus, FMG was able to establish the
enforceability of the arbitration agreements against all three named plaintiffs in one action, rather
than in three individual actions. By participating in class adjudication to resolve issues of
arbitrability before asserting a right to avoid class adjudication, FMG evinced its intent to waive
that right in the same way it would have if it had litigated the issues in a court and then asserted
a right to arbitrate those issues.
   CP at 1.
                                                 12
No. 74806-8-I /13


the agreements was resolved before raising the issue of individual arbitration.
                                                                   12 This

argument would be more persuasive if FMG had waited to compel arbitration until the

court had determined whether the agreements were unconscionable. But FMG did not

wait, It moved to compel arbitration at the same time that it opposed Romney’s motion

to invalidate the agreements.

          Second, when Dr. Romney’s illness forced the parties to address discovery while

the first appeal was pending, FMG never hinted that it believed that class arbitration was

unavailable under the arbitration agreements. Instead, FMG referred repeatedly to the

putative class and opposed class discovery on the ground that the court or the arbitrator

might decline to certify the class.
                             13 FMG concedes that it “acknowledged that an arbitrator



12
   FMG cites Oxford Health, for the proposition that it is appropriate to wait until after a court has
determined whether an arbitration agreement is enforceable to raise any issues about class
arbitration. See 133 S. Ct. at 2067. There, the parties decided the class issue after the arbitration
issue, but there is nothing to indicate when the defendant first raised the issue. Oxford Health,
133 S. Ct. at 2067.
13
    For example, FMG’s briefing to this court and the superior court included the following
statements:
         Additionally, if this Court orders full discovery and then compels the parties to
         arbitration, FMG may be forced to participate in discovery that is unnecessary for
         the arbitration, as an arbitrator could decline to certify the putative class or narrow
         other issues in the case.
   CP at 611.
         [T]his Court should consider all facts, including whether it is appropriate to allow
         class discovery when it is still uncertain as to whether a court or an arbitrator will
         preside over this matter and whether a class will even be certified.
   CP at 667.
         Plaintiffs cannot establish that justice requires this Court to permit discovery
         regarding class claims when it is uncertain whether this Court or an arbitrator will
         determine whether a class exists, when no class has been certified, and when Dr.
         Bauer will be able to pursue his individual claims, as well as those of the putative
         class, once the question of forum is decided.
   CP at 674.
         Plaintiffs, however, have failed to demonstrate that putative class members would
         be harmed in any way should class-related discovery occur after these issues have
         been determined by either a Court or an arbitrator. Should a class be certified.   .




     CP at 675-76.
                                                 13
No. 74806-8-I / 14

has the power to certify a class.”
                           14 An arbitrator has only the powers granted to it by an

arbitration agreement. Stolt-Nielsen, 559 U.S. at 682. Therefore, the arbitrator would

have the power to certify a class only if the agreement permits class arbitration.

          FMG contends that it would be “absurd” to use its statements during a discovery

dispute as evidence that it waived a right to compel individual arbitration because, at the

time, it “was facing the very real possibility of the case being litigated in court.”
                                                                              15 This

argument would be persuasive if all of FMG’s arguments during class discovery had

assumed that FMG would lose the appeal and have to litigate the matter in court. But

FMG’s arguments, which discussed which forum might ultimately hear the case, and how

a superior court or an arbitrator might decline to certify the class, attempted to

demonstrate why, win or lose the appeal, class discovery was premature. One would

have expected FMG to argue that, if it won the appeal, class arbitration would not be

available at all. Yet FMG’s arguments revolved around whether the class was viable, not

whether class arbitration was available.

          Third, FMG’s argument during its first appeal is inconsistent with an intent to assert

the right to compel individual arbitration. At oral argument, FMG used the fact that

Romney was bringing a putative class action, and had engaged counsel for the class on

a contingent-fee basis, to reassure the court that the agreements’ provision requiring

plaintiffs to share in the costs of arbitration, unless they showed they could not afford it,

was not unconscionable. Counsel for FMG’s response to the court’s concern about the

plaintiffs having to prove they cannot afford to pay arbitration costs was

          [w]ith respect to the cost-shifting  .   the test is, does the imposition of the
                                                   .   .



          costs of the arbitration effectively prohibit the plaintiffs from bringing it. Well,
14
     Br. of Resp’ts at 23.
15
     Br. of Resp’ts at 24.
                                                       14
No. 74806-8-I /15

       here you have med- established medical professionals who are seeking to
       represent a class and who propose as class counsel a well-established
       plaintiffs’ law firm that’s undertaken this on a contingent-fee basis.[’
                                                                       ]
                                                                       6

If FMG had intended to assert a right to compel individual arbitration, it would not have

used the fact that Romney filed a putative class action complaint and hired class counsel

in their defense of the arbitration agreements.

       We conclude that these actions show that FMG’s conduct was inconsistent with

an intent to compel individual arbitration.

       FMG argues that Romney cannot show that it waived its right to compel individual

arbitration because Romney cannot show that FMG consented to class arbitration. FMG

relies on the standard for determining whether a contract permits class arbitration.

Stolt-Nielsen, 559 U.S. at 684. This argument fails because whether there is evidence

that FMG consented to class arbitration is not the same question as whether FMG waived

a right to compel individual arbitration.
                             17

       FMG also argues that it did not have to raise the issue of class arbitration because

it was “equally incumbent upon [Romney] to make the argument that class arbitration was

18
appropriate.”     But, by bringing their claim as a putative class action, seeking class

discovery, and actively promoting the interests of the putative class at every turn, Romney

was impliedly asserting that they believed class adjudication of the dispute was available,

regardless of the forum.


18
   Wash. Court of Appeals oral argument, Romney v. Franciscan Med. Grp., No. 71625-5-I (Nov.
17, 2014), at 10:34:42 10:35:27 (on file with court).
                       —

17
   By way of analogy, compare consent to personal jurisdiction via a contract with a waiver of an
objection to lack of personal jurisdiction by conduct during litigation. .f Kysar v. Lambert, 76
Wn. App. 470, 485, 887 P.2d 431 (1995) (examining consent to personal jurisdiction) with Boyd
v. Kulczyk, 115 Wn. App. 411, 415, 63 P.3d 156 (2003) (noting that a party may waive a lack of
personal jurisdiction).
18
   Br. of Resp’ts at 32.
                                               15
No. 74806-8-I /16

       Prejudice

       To determine whether there has been prejudice, “we consider the extent of the

delay, the degree of litigation preceding the motion to compel [arbitration], the resulting

expenses, and other surrounding circumstances.” Wiese, 189 Wn. App. at 481. “[D]elay

amounts to prejudice when there is no good excuse for it.” Steele, 85 Wn. App. at 858.

But, delay caused by the conduct of one party, is not “evidence of waiver by the other

party.” Lake Wash. Sch. Dist. No. 414 v. Mobile Modules Nw., Inc., 28 Wn. App. 59, 63,

621 P.2d 791 (1980).

       Here, FMG’s failure to raise the issue caused prejudice to Romney in the form of

delay and litigation costs. There was an approximately two-year delay between when

Romney brought their suit and when FMG first asserted its right to individual arbitration.

Romney filed their class-action complaint in November 2013. FMG informed Romney

that it would be seeking individual arbitration via e-mail in October 2015. FMG did not

assert a right to compel individual arbitration in any court document until December 2015.

       FMG argues that the Romney caused the delay by seeking to void the arbitration

agreements and pursue class discovery. But the main reason for the delay is that FMG

appealed the superior court’s order voiding the arbitration agreements before raising the

issue of individual arbitration.

       Because FMG failed to assert its right to individual arbitration when Romney

moved to void the agreements, Romney expended time, energy, and resources on this

litigation, including a direct appeal and petition to the Washington State Supreme Court.

Romney also engaged in costly litigation over the availability of class discovery. Thus,

Romney suffered significant prejudice from FMG’s delay in asserting its right.


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       We conclude that FMG waived its right to object to the putative class preceding to

arbitration. Because of our resolution of this issue, we do not address whether FMG

would be equitably estopped from asserting a right to compel individual arbitration or

whether the trial court exceeded the mandate by entering an order compelling individual

arbitration.

       We remand for the trial court to enter an order sending the putative class to a single

arbitrator under the terms of the agreements.




WE CONCUR:




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