Arbitration Waiver

High Stakes of Arbitration Timing

The Seventh Circuit’s decision in George Moore v. Club Exploria, LLC. No. 25-2721 (7th Cir., August 18, 2026) serves as a stark warning: the delay of this motion is no longer a mere matter of strategy but a profound jurisdictional and waiver risk. The ruling establishes that the "policy favoring arbitration" provides no safe harbor for a defendant who engages the judicial machinery while keeping its arbitration agreements in reserve.

The central question before the court was whether a defendant’s conduct prior to class certification can result in the implied waiver of its right to arbitrate with putative class members. By answering in the affirmative, the Seventh Circuit has ensured that "litigation as usual" can inadvertently become a terminal trap.

A Four-Year Path to Waiver

To appreciate the magnitude of this shift, one must analyze the four-and-a-half-year procedural history of the Moore litigation, where standard defense maneuvers ultimately evaporated a contractual right to arbitrate.

The litigation originated from a 2018 telemarketing campaign for Club Exploria’s Summer Bay resort. In April 2019, George Moore filed a putative class action alleging that Exploria’s third-party vendors utilized pre-recorded calls without consent, violating the Telephone Consumer Protection Act (TCPA). What followed was a protracted, four-and-a-half-year litigation cycle characterized by a conspicuous absence of any arbitration demand.

The Seventh Circuit highlighted a chronological series of milestones that signaled a clear choice of the judicial forum over arbitration including merits focused pleadings, two years of class discovery, opposition to class certification, and post-certification maneuvers.

Pre-Certification Conduct and the Implied Waiver

The Moore decision articulates a strategic mandate: pre-certification conduct is inherently relevant to the waiver analysis. In reaching this conclusion, the Seventh Circuit addressed an existing circuit split. It rejected the "futility" or "jurisdictional impossibility" argument favored by the Eighth and Eleventh Circuits—which posits that a defendant cannot move to compel arbitration against putative members who are not yet formal parties.

Instead, the Seventh Circuit aligned with the Third and Ninth Circuits, adopting a "diligence" requirement. The court emphasized that a diligent defendant must integrate arbitration into its Rule 23 strategy.

Applying the standard from Morgan v. Sundance, 596 U.S. 411, 417 (2022), the court rejected the notion that a plaintiff must prove "prejudice" or that the defendant faces a "heavy burden" to overcome waiver. Under Moore, arbitration agreements are treated as standard contracts; if a party’s conduct signals abandonment of the right, the right is lost.

Lesson

In the wake of Moore, "diligence" is the preeminent factor in the Seventh Circuit’s waiver analysis.

Moore v. Club Exploria fundamentally reshapes the lifecycle of a class action in the Seventh Circuit. By confirming that pre-certification conduct serves as a gateway to waiver and insulating district court findings via the "clear error" standard, the court has effectively killed the "wait and see" strategy. For the defense, the mandate is absolute: the choice of forum must be made and asserted at the earliest feasible determination, or the right to arbitrate will be lost to the standard principles of contract waiver.