“Appellate Court affirms defendant waived the right to arbitration”

Lexology has published this article by Buckley discussing the Florida District Court of Appeals decision in Marino Performance, Inc. v. Zuniga, in which the court denied a motion tofo compel arbitration, holding that the movant “engaged in a litigation strategy of ‘outcome oriented gamesmanship.’” As the article explains, none of the movant’s seven affirmative defenses referenced arbitration, and it unsuccessfully moved for judgment on the pleadings. Only days before the scheduled court hearing on the motion for class certification did the movant, for the first time, raise arbitration as an issue. On these facts, and measured against “instructive” precedent, the court held that movant had waived its right to seek arbitration of the class claims.