Three federal appellate courts recently affirmed lower courts’ refusal to compel arbitration.  These cases show that the federal policy favoring arbitration is not absolute – the parties must have agreed to arbitrate the claims at issue and the defendant cannot have waived its right to arbitrate by engaging in significant discovery and motion practice.

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This is unheard of!  There were two circuit court decisions finding no binding agreement to arbitrate in a single week.  (The first is here.)  In this new decision from the Third Circuit, an employer’s submission of forms to a union fund along with fringe benefits is held insufficient to compel that employer to arbitration