## I L L I N O I S 

## O F F I C I A L 

## R E P O R T S Appellate Court

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

Appellate Court Caption ARI N A

. BO VA Y, I ndividually and on Be half of All Others Si milarly Si tu a te d
, Pl a in ti f f s

- A p p e ll e e s , v

. SEARS, RO E B U CK A N D CO M PA

N Y
, Def endant- Appellant.

District & N o. First District, Six th Division Docke t No. 1-12-0789

Filed J uly 19, 2013

Held (Note : T

his syl lab us

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by the Rep o rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The order denying defe ndant’s motion to compel arbitration of plaintiffs’ putative class action alleg ing that defe ndant injured p l aint iffs by disclosing confide ntial data to third parties, including the numbers of

cre dit car ds defe ndants had issued to plaintiffs and the balanc es on those

acc ounts, was aff

irmed on the g round that def endant’ s reque st was untimely and the rig ht to arbitrate had been waived, since defe ndant had

a known rig ht to arbitration when plaintiffs’ actions wer e filed, there was

no showing that the asser tion of the rig ht to arbitration would have been futile, and defe ndant’s litigation of the case for m any y ear s befor e reque sting a

rbitration pre

judiced plaintiffs.

Dec ision Under Review Appea l from the Circuit Court of Cook County
, Nos. 01-CH-18096, 02- CH-4693, 03-CH-7605 cons.; the Ho n

. Richard J

. Billik, J udg e, presiding

.

J udg ment Affir med.Counsel on

Appea l Fr ancis A. Citera, J ane B. M cC u l l o u gh, and Paul J

. Fe rak, all of Gre enber g Traur ig L L P, of Chicag o, for a ppellant.

Be n Ba rnow, Sharon Har

ri s , an d Erich P. Schork, all of Ba rnow & Associates, P.C., Norman A. Rifkind, L eig h L asky
, and Amelia S. Ne wt o n, all of L asky & Rifkind, L td., and Wil liam J

. Har te, all o f Chicag o, and Bonny E. Sweene y and Carmen A. Medici, both of Robbins Geller Rudman & D owd L L P, of San Dieg o, California, for appellee s.

Panel J USTI CE REYES delivered the judg ment of the c ourt, with opinion. Presiding J ustice L ampkin and J ustice Gordon concur red in the judgme nt and opinion.

OP INION

¶ 1 I n this interlocutory appea l broug ht pursuant to I llinois Sup re m e C ourt Rule 307(a) (1) (ef f. Fe b. 26, 2010), defe ndant Sears, Roebuck & Company (Sear s) seeks the reve rsal of an order of the circ uit court of Cook County denying its motion to compel arbitration of claims broug ht by plaintiffs in a consolidated class action. Sears maintains the circ uit court err ed in rul ing Sears waived its rig ht to arbitrate the claims and untimely demande d arbitration,
arguing a United States Supreme Court opinion i s s u ed in 2011 repr esente d a signific ant chang e in the law justify ing its decisi on to seek arbitration y ear s afte r plaintiffs filed their
respe ctive complaints. F or the following rea sons, we af firm.

¶ 2 BA CKGROUND ¶ 3 The limit ed rec ord on interlocutory ap p ea l s u b m i t t ed by Sears and supplemented by plaintiffs fails to include t h e plaintiffs’ initial complaints in this matter. Neve rtheless, the

rec ord discloses p l ai n t i ffs Arin A. Bova y , Nanc y Woods and Eliz abeth Turner filed a putative class action complain t ag ainst Sears in 2001 (B ovay lawsuit). Plaintiffs Mark Triezenber g and Mary L awson filed a putative class action complaint ag ainst Sears in 2002 (Trie zenberg lawsuit). Plaintiffs Patricia Clark, T er rel Gore and Mary Rodrigue z filed a putative class action complaint ag ainst Sears in 2003 (Clark lawsuit). These complaints, as subsequently amende d, eac h alleg ed the respe ctive plaintiffs wer e Sears cre dit car d holders who wer e injured w hen Sear s unlawfully disclosed conf

idential data, including cre dit card numbers and acc ount balanc es, to third parties. The complaints alleg ed cause s of action including: (1) vi olations of t he I llinois C o n s u mer Fraud and Deceptive Business P rac tices Act (815 I L CS 505/1 et seq

. (West 2000)); (2) intrusion upon seclusion; (3) public disclosure of private fac ts; and (4) unjust enric hment. On April 25, 2002, the c i rcuit court entered an order consolidating the Bova y lawsuit with the Triezenber g lawsuit. On May 13, 2003, the

-2-circ uit court enter ed an or der c onsolidating the Clar k lawsuit with the Bova

y lawsuit. ¶ 4 Depositions of the plaintiffs conducte d by Sears disclose eac h of these named plaintiffs

was a Sears cre dit car d holder prior to 2000 throug h the end of 2003, with the exception of Wood s , wh o s topped rec eiving cre dit from Sears in 2000. The cre dit car d ag ree ment 1 betwee n Sears a

nd plaintiffs in eff

ect a s of Marc h 2000 provides in par t:

“ Section 22. ARBITRATION

. Any and all claims, disputes or controve rsies of any nature whatsoeve r (whe ther in c ontrac t, tor t, or otherwise) arising out of, rela ting to, or in connec tion with: (a) this Ag ree ment; (b) any prior Ag ree ment y ou may have had with us ***; (c) the application for the Acc ount, this Ag ree ment or any prior ag ree ment; ( d) the rela tionships which result from this Ag ree ment or any prior ag ree ment (including any rela tionship with us ***); or (e) the validity
, scope or enforcea bility of this arbitration section or thi s Agr ee ment or any prior ag ree ment *** shall be resolved, upon y our elec tion or our elec tion, by final and binding arbitration befor e a single arbitrator, on an individual basis without resor t to any form of class action, except that eac h party reta ins the rig ht to seek relief in a small claims court, on an individual basis without resor t to any form of c lass action, for

claims within the scope of its jurisdi ction. Arbitration may be elec ted at any time, reg ardle ss of whether a lawsuit has been filed

o r not, unless such a lawsuit has resulted in a final judgme nt or the other party wo u l d suffe r substantial prejudice as a result o f t h e delay in demanding arbitration. The arbitrator shall be a lawy er or retire d judge with not less than 15 y ear s’ experience in the
prac tice of law. This arbitra tion ag ree ment will not apply to claims previously asser ted,

or which are later asser

ted, in lawsuits filed befor e the eff ective date of this Ag ree ment, but it will a

pply to a ll other claims, even if the fa cts and circ umstances upon which the claims are based e x isted befor e the e ffe ctive date of this Ag ree ment ***.
All arbitrations shall be administered by the National Arbitration For um (‘NA F’ ) in

acc ordanc e with the Code of Proc edure in effe ct at the time the c laim is filed ***. Any arbitration y ou attend wil l t ak e p l ace at a location within the fede ral judicial district that includes y our billing addre ss at the time the claim is filed. We will advanc e either a ll or part of the fee s on y our beha lf to the NAF and the a rbitrator if you send us

a written reque s t

. T h e arbitrator will decide whether y ou, us or any toher party will ultimately be responsible for these fee s. You ag ree to return the amount of any advanc ed fee s as finally allocate d by the arbitrator. The arbitra rtor shall apply rele vant substantive law and applicable statutes of limit ation and shall provide written, rea soned finding s of fac t and conc lusions of law. This arbitration section of this Ag ree ment is made pursuant to a transac tion involving interstate commerc e and shall be g overne d by the Fe dera l Ar b i t ration Act ***. I f any port i o n o f this arbitration section is deeme d invalid or unenfor cea ble, it shall not invalidate the r emaining portions of this arbitration sec tion ***.

I n add it ion
, m oti ons f

i l e d b y t h e par ti es ind ic at e Bovay wit hdr ew his cl ai m s in 2009 for 1 hea lt h r eas ons

.
-3-Y OU U N DERSTAND AND AG REE, AND WE UNDERSTAND AND AG REE, THAT BECAU SE OF TH I S A RBI TR ATION CLAUSE NEITHE R YOU NOR WE WILL HAVE THE RIG HT TO GO TO COURT EXCEP T AS P ROVIDED ABOVE OR TO HAVE A JURY TRIAL, OR T O PAR T I CI P ATE AS A REP RESENT ATIVE OR ME MB E R OF ANY CLASS OF CLAIMANTS P ERTAINING TO ANYCLAIM

. Section 29. GOVERN ING LAW

. This Ag ree ment and y our Acc ount will be
g overne d by and interpre ted in acc ordanc e with the laws of the United States and, to the extent g overne d by state law, the laws of the State of Arizona, re g ardle ss of wher e y ou live or whe re y ou use the Ac count. This Ag ree ment is entere d into in Ariz ona.” ¶ 5 The cre dit car d ag ree ment betwee n Sears and plaintiffs in eff ect as of Marc h 2003 differ s in sever al respe cts from the version in eff ect in 2000. The 2003 ag ree ment place s “the establishment, opera

ting, handling o r t er m i nation of t he Account” and “any transac tion or attempted transac tion rela ting to the Acc ount” expressly within the scope of the arbitration provision. The arbitrator need only have 10 y ear s’ experience in the p ra ct i ce of law. Moreove r, the arbitration provision specifie s it will not apply to “cla ims of a class cer tified prior to the eff

ective date of [t he] Ag ree ment.” The arbitration provision will apply to all other claims, including class claims not y et cer tified. I n addit i o n , t h e 2 0 03 version of the

cre dit car d ag ree ment further provides that arbitration will be administere d by NAF
, the Americ an Ar

bitration Association or JAMS , in acc ordanc e with their re spective r ules. 2 ¶ 6 Fur

thermore , the 2003 ver sion of the cr edit car d ag ree ment provides: “Whoever files the arbitration pay s the initial filing fee

. I f we file, we pay ; if y ou file; y ou pay , unless y ou g et a fee waiver under the applicable rules of the arbitration firm. I f y ou have paid the initial filing fee and y ou preva il, we will reimburse y ou for that fee

. I f there is a hear ing, we will pay any fee s of the arbitrator and arbitration firm for the first day of that hear ing. All other fe es wi l l be allocated as provided by the rules of t he arbitration firm and appli cable law. Howeve r, we will advanc e or reimburse y our fee s if the arbitration firm or arbitrator deter mines there is g ood rea son for us to do so, or if y ou ask

us in writing and we deter mine there is a g ood rea son for doing so. Eac h party will bear the expense of that party ’s attorney s experts and witnesses, and o t h er ex p enses, reg ardle s s o f whi ch party preva ils, but a party may rec over any or all expenses from another party if the ar bitrator, apply

ing a pplicable law , so determines.” ¶ 7 Sears answe red plaintiffs’ complaints, as amende d, and asser ted aff irmative defe nses. I n the Bovay lawsuit, Sears asserted plaintiffs’ claims were barre d by : a st atute of limit ation; laches
, waiver and estoppel; and various failure s to alleg e sufficie nt fac ts to state claims for relief

. I n the Tri ez en b erg and Clark lawsuits, Sears asser ted simil ar defe nses and also

asser ted the alleg ed disclosure of customer data was protec ted by fede ral law. Sears did not

asser t a rig ht to a

rbitration in the se answe rs. Subsequently
, plaintiffs further amende d their

NAF, as not ed in the Sea rs agree m ent s, is an acr onym for the Nat ion al Arbi tr at ion For um

. 2 J AMS was a n a cr onym for J udi ci al Arbi tr at ion and Me dia ti on Ser vices
, I nc. See htt p:/ /www.j amsadr. com/abo ut-the- j ams- name/.

-4-complaints in a ll thre e lawsuits to seek punitive da mag es. Sears ag ain answe red and raised aff irmative defe nses to the claims for punitive damag es, but did not asser t a rig ht to arbitrate plaintiffs’ cla ims. ¶ 8 The rec ord on appea l does not contain the motions to dis m i s s S ea rs fi l ed pursuant to section 2-615 of the Code of Civil Procedur e (Code) (735 I L CS 5/2-615 (West 2004)). The supplemental rec ord on appea l includes a J une 9, 2005, order g ranting the motions to dismiss in pa rt and denying them in part. I n the orde r, the c ircuit court struc k alleg ations reg arding the misappropriation of names and li k en es s es from the invasion of privac y claim in the Bova y lawsuit. The circ uit court also g ranted the motion to dismiss the brea ch of contra ct claims in the Triezenbe rg and Clark law suits without prejudice

. ¶ 9 The rec ord on appea l also does not contain plaintiffs’ co n s o l i d at ed motion for c lass

cer tification. The supplemental rec ord on appea l includes a F e b r u a r y 1 9
, 2008, order g ranting plaintiffs’ consolidated motion for class cer tification in part, denying the motion in part, and direc ting plaintiffs to revise their proposed class definition, which the circ uit court found to be overly broad. The supplemental rec o rd o n ap p ea l also includes an April 7, 2008, order approving a class definition of all persons and entities in the Unit ed S t at es , excluding members of a California class action, who, betwee n September 9, 1995, and J une 22, 2001, held a Sears cre dit car d and had cer tain information disclosed to any third-par ty vendor with whom Sears had ag ree ments under which Sears would rec eive money , direc tly or indirectly from sale s made by

the third parties to Sea

rs cr edit car d holders. ¶ 10 Sears petitioned for review of the circuit co u rt ’s cer tification of t he class. The pe tition

was denied by this court and later by the I llinois Supreme Court. See Clark v. Sears, Roebuc k & Co. , 229 I ll. 2d 664 (2008) (table ). ¶ 11 Th e re co rd o n ap p ea l does not contain Sears’ s motion to seek revie w in this court pursuant to I llinois Supreme Court Rule 308(a) (ef f. Fe b. 1, 1994). The supplemental rec ord

on appea l, howeve r, includes a J anuar y 13, 2009, order den y i n g s ai d motion. The supplemental re cord on a ppeal a lso inc ludes an April 30, 2009, order approving plaintiffs’ plan for notice to the class, which included the publication of a press rele ase in one wee kend and one wee kday edition of the USA Today newspa per, as well as t h e establishment of a website on the I nterne t allowing public acc ess to the operative complaints and order s enter ed in the litigation. ¶ 12 On Aug ust 19, 2011, Sears filed a motion to compel arbitration and stay the proc eeding s pursuant to section 3 of the Fe dera l Arbitration Act (F AA) (9 U.S.C. § 3 (1994))

. Sears

asser ted the United States Supreme Court de cision in AT& T M obility, LLC v. Concepcion
, 563 U.S. ___, 131 S. Ct. 1740 (2011), established for the first time that Sears had a known, exis ting rig ht to compel arbitration of plaintiffs’ individua l c la im s a n d a v o id c lass arbitration. Acc ording to the motion, S ear s serve d demands for arbitration on plaintiffs on Aug ust 10, 2011, and wa s notified of plaintiffs’ r efusa l to arbitrate on Aug ust 17, 2011. ¶ 13 Plaintiffs filed a response in opposition to the motion to compel arbitration on September 27, 2011. Plaintiffs argued Sears waived any rig ht to arbitra tion by actively and ag g ressively litigating these case s for near ly a deca de. Plaintiffs also argued Sears could not demonstrate

asser ting the rig ht to arbitrate would have b ee n futile under I llinois or Ariz ona law during

-5-the period prior to the Concepc ion decision. Plaintiffs further arg ued Concepc ion d i d not

excuse Sears’ s waiver of arbitration. I n addition, plaintiffs argued: (1) the 2003 version of the S ear s cre dit car d ag ree ment did not apply to this litigation; (2 ) t h e 2000 version of the
ag reem ent was unenfor cea ble beca use NAF was barr ed from arbitrating case s betwee n

consumers and businesses by a Minnesota consent decr ee; and (3) Sears’ s arbitration clause is unconscionable unde r both Arizona and I llinois law. ¶ 14 Sears filed a reply in support of t he mot ion on November 1, 2011. Plaintiffs filed their

surre ply opposing a

rbitration on Novembe r 28, 2011. ¶ 15 The recor d further conta i n s a transcr ipt of proceeding s for August 11, 2011, reg arding the motion to compel arbitration, as well as a motion by Sears to strike exhibi ts rela ted to plaintiffs’ motion for summ ary judgme nt. Sears objected to plaintiffs’ use of a settlement 3
ag ree ment appar ently rea ched in the California class action to support t h ei r m o tion for
summary judgme nt. The court ruled it would disreg ard any use of the settlement ag ree ment 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 Fe bruar

y 22, 2012, afte r hear ing argument, the circ uit court denied the m o t i o n t o compel arbitration. T h e ci rc uit court rec ited the rea sons for its decision. The circ uit court found that in the y ear s betwee n the filing of plaintiffs’ compl aints and the decision in Concep ci o n , there was “extensive litigation” in this case , involving dispositi ve motions challeng ing the plea d i n g s, answe rs and aff irmative defe nses, the motion for class

cer tification (which r equire d discovery , briefing and a hear ing)
, attempts to se ek revie w of the class cer

tification, the parties’ cross-motions for partial or total summary judgme nt, and ad d i t ional discovery matters which rema ined pending

. The circ uit court also ref err ed t o “conf ere nces, including those even held by the [c] ourt for the purposes of try ing to r esolve this matter at an ear ly date.” Sears failed to file any aff idavit to explain why it had not soug ht arbitration at an ea

rlier date. ¶ 17 The circ uit court reje cted the argument that it would have been futile for Sears to assert their rig ht to arbitrate prior to the Concepc ion decision. The circ uit court found Sears acte d inconsistently with its rig ht to arbitrate in the litigation. The circ uit court also found plaintiffs would suffe r prejudice at this stag e of the litigation if the motion to compel arbitra tion was g rante d, “par

ticularly in view of the litig ation eff orts, as well as m ediation efforts, t hat t he parties have eng ag ed in throug hout this litigation.” Acc ording ly
, the circ uit court ruled Sears waived its rig ht to arbitrate the claims involved in this li tigation. ¶ 18 I n addition, the circ uit court ruled plaintiffs’ claims wer e g overne d by the 2003 version of the Sears cre dit car d ag ree ment, with the exception of Woods, wh o s e claims wer e g overne d by the 2000 version of the ag ree ment. The circ ui t co urt further ruled plaintiffs failed to demonstrate the cre dit car d ag ree ments wer e unconsciona ble under either Arizona

Pla int if fs ass er t the y fi le d a con sol ida te d m oti on for summ ar y j udgm ent on J uly 22, 2010
, 3 and Sea rs fi le d it s re spo nse and cr oss

- m oti on for summ ar y j udgm ent on Ma rc h 30, 2011

. Pla int if fs
, however
, ci te to the ir own re spo nse oppo si n g t h e mo t i on to compel ar bit ra ti on, whic h doe s not

m ent ion th ese dat es.

-6-or I llinois law. Moreove r, the court specific ally ruled the unavailability of NAF as a forum

did not render

the 2000 ag ree ment as unenf orce able. ¶ 19 The ci rc u i t court enter ed a written order on Fe bruar y 22, 2012, denying the motion to compel arbitration and stay proce eding s. On Marc h 22, 2012, Sear s fi l ed a notice of interlocutory

appea l to this court.

¶ 20 DI SCUS SI ON ¶ 21 On appea l, Sears contends the circ uit court err ed in ruling Sears wa i v ed i t s rig ht to arbitrate and its asser

tion of t he right t o ar b i t rate was unti mely

. Plaintiffs argue the circ uit court did not err

on these points. Plaintiffs also asser t alternate grounds to af

firm, ar g uing,
as t hey did in the circuit court: (1) the 2003 version of the Sears credit card agr eeme nt did
not apply to this litigation; (2) the 2000 version of the ag ree ment was unenfor cea ble beca use NAF was barr ed from arbitra ting case s betwee n consumers and businesses; and (3) Sears’ s arbitration clause is unconsc ionable under both Arizona and I llinois law.

¶ 22 I . The Standar d of Review ¶ 23 The parties disag ree reg arding the proper standard of revie w of this interlocutory appea l. Sears maintains the standard o f re v iew is de novo , while plaintiffs argue the standard is whether the trial cour

t abused its discretion in deny ing the motion to compel arbitration. ¶ 24 This court has jurisdictio n t o re v i ew t h e circuit court’s order denying the motion to compel arbitration pursuant to I llinois Supreme Court Rule 307(a) (1) (eff

. Fe b. 26, 2010). See, e.g. , Glazer’s Distributors of Illinois, I nc. v. NW S-Illinois, LLC
, 376 I ll. App. 3d 411, 419 (2007) (citing W

eiss v. W aterhouse Securities, Inc.
, 20 8 I l l

. 2 d 439, 448 (2004))

. The rule g ener ally allows for appea ls from denial of injunctive relief

. Glazer’s Dist r i b u t o r

s of Illinois, Inc

. , 376 I ll. App. 3d at 423. This court has “split on the issue of whether an abuse of discre tion standard or de novo standard a pplies to cases suc h as this one .” Id. A number of decisions from the First District of this court have deter mined an abuse of discretion

s t andar d applies to a revie w of the circ uit court’s decision reg arding waiver of arbitration rig hts. Id . (and c ases c ited there in). I n contra st, “ [t ]he Sec ond, Third, and Fifth Districts of this court have determined t hat a de novo revie w is appropr iate whe re the circ uit court has deter mined the issue of waiver of the rig ht to arbitration beca use the circ uit co u rt i n such instances revie ws undisputed fac ts and makes a waiver deter mination as a matter of law.” Id

. (and c ases c ited there in). ¶ 25 This split in authority may be reconc iled by ref ere nce to g ener al principles established by our supreme court. “[I ]n an interlocutory appea l, the scope of revie w is normally limit ed
to an examination of whether or not the t rial court abused its discretion in g ranting or ref using the reque sted interlocutory relief .” In re Lawrence M.
, 172 I ll. 2d 523, 526 (1996). “Howe ver, wher e the question prese nted is one of law, a re v iewing court deter mines it independe ntly of the trial court’s judgme nt.” Id

. Moreove r, “ ‘whe re the ex er ci se of discretion has been frustra ted by the application of an err oneous rule o f l aw , revie w is require d to permit the ex erc ise in a manner “c onsistent with the law.” ’ ” Loyola Academ y v. S& S Roof Maintenance

, Inc.
, 1 4 6 I l l

. 2d 263, 274 (1992) (quoting People v. Brockm an ,

-7-143 I ll. 2d 351, 363 (1991)).

¶ 26 Acc ording ly
, in interlocutory appea ls of order s denying a motion to compel ar bitration, questions of law are revie wed de novo , while any finding s of fac t are revie wed for an abuse of discretion in light of a proper understanding of the law

. T h i s ap p roach is g ener ally consistent with the standards of revie w applied by fede ral courts i n ca s es involving the

wa i v er o f t h e rig ht to arbitrate. S ee LAS, Inc. v. Mini-Tankers, USA, Inc.
, 342 I ll. App. 3d 997, 1 0 01 (2003) (and case s cited there in). De novo consideration means we perf orm the

same analy sis a trial judge would perf orm. Khan v. BDO Seidman, LLP
, 408 I ll. App. 3d 564, 578 (2011). An abuse of discretion occur s only when the ruling is arbit ra ry , fa nciful, or

unrea sonable, or when no rea sonable person would take th e s am e v i ew

. See People v. Ortega , 209 I ll. 2d 354, 359 (2004); People v . Illgen , 145 I ll. 2d 353, 364 (1991).

¶ 27 I I . Waiver of the Rig ht to Arbitrate ¶ 28 The FAA g overns the enfor cea bility of arbitration ag ree ments in con t ra ct s i n v o lving interstate commerce

. In re Toyota Motor Corp. Hybrid Brake Marke ting, Sal es , P r a ctices & Products Liabil ity Liti

gation
, 828 F. Supp. 2d 1150, 1157 (C.D. Cal. 2011) ( Toyota ); see 9 U.S.C. § 1 et seq. (1994). Sec tion 3 of the FA A provides:
“I f any suit or proce eding be broug ht in any of the courts of the United States upon any issue ref

era ble to arbitration under an ag ree ment in writing for such arbitration, the
court in which such suit is pending
, upon being satisfied that the issue involved in such suit or proce eding is ref era ble to arbitration under such an agr ee m en t , shall on application of one of the parties stay the trial of the action until such arbitration has been had in ac corda

nce w ith the terms of the ag ree ment, providing the applicant for the sta y is not in default in proce eding with such arbitration.” 9 U.S.C. § 3 (1994).
Gene rally
, under the FAA
, “cour ts shall stay further proce eding s and order arbitra tion if: (1) a valid agr eeme nt to arbitrate e x ists, and the (2) the ag ree ment encompa sses the di spute at issue.” Toyota
, 828 F. Supp. 2d at 1157. The first issue is g ener ally a question of state law, while the second issue is g ener ally one of fede ral substantive law. Id

. at 1157-58. “Althoug h 4 the FAA favor s the enfor ceme nt of private arbitration agre em ents , 9 U.S.C. § 2, the court may ref use t o en fo rce an arbitration ag ree ment on the g round that the party seeking enfor ceme nt has waived such rig ht.” Toyota
, 828 F. Supp. 2d at 1162 (a n d case s cited
t h er ei n ). Neve rtheless, “as a matter of fede ral law, any doubts conce rning the scope of arbitra ble i ssues should be resolved in favor of ar bitration, whether the problem at hand is the construction of the contra ct lang uag e itself o r an alleg ation of waiver
, delay
, or a like defe nse to arbitra

bility .” Moses H. Cone Mem orial Hospital v. Merc ury Construction Corp.
, 460 U.S. 1, 24-25 (1983). ¶ 29 Fe dera l courts considering purported waiver s of t he ri gh t to arbitrate have employ ed a

R e ga rdi ng the sec ond is sue , the par ti es m ay con tr act oth er wis e. See Vol t Inf orma ti on 4 Sci enc es, Inc

. v. Boar d of Trus te es of Lel and Sta nfo rd Jun ior Univ ers it y , 489 U.S. 468, 479 (19 89)

. I n thi s cas e, however
, bot h versi ons of the Sea rs cr edi t car d agree m ent in thi s cas e con ta in arbit ra ti on cl aus es whic h r ef

er to th e FAA.

-8-varie ty of overla pping approa ches to the issue. E.g.
, In re Pharmacy Bene fit Managers Antitrust Liti

gation
, 700 F.3d 109, 117 (3d Cir. 2012) (a nd case s cited therein); Louisi ana Stadium & Exposition District v. Merrill Lynch, Pierce

, Fenne r & Smith, Inc.
, 626 F.3d 156, 159 (2d Cir. 2010) (and case s cited there in); Johnson Ass o ciates Corp. v. HL Operating Corp.
, 680 F.3d 713, 717 (6th Cir. 2012) (and case s cited there in); In re Tyco International Ltd. Securities Liti

gation
, 422 F.3d 41, 44 n.2 (1st Cir. 2005); Fisher v. A.G. Bec ker Paribas Inc.
, 791 F.2d 691, 694 (9th Cir. 1986). I ndeed, some of these federal courts stress a deter mination of waiver must be based on the ci rc u m s t an ces and context of the particula r

case

. In re Phar ma cy B enefit Managers Antitrust Liti gation
, 700 F.3d at 118; In re Tyco International Ltd. Securities Liti gation
, 422 F.3d at 44 (citing Cabinetree of W isconsin, Inc. v. Kraftmaid Cabi netry, Inc

. , 50 F.3d 388, 390 ( 7th Cir. 1995)). ¶ 30 I n this litigation, Sears adopts the approa ch taken by the Ninth Circuit, which holds “ [a] party seeking to prove waiver of a right to arbitration must demonstrate: (1) knowledge of

an exis ting rig ht to compel arbitration; (2) acts inconsistent with that exis ting rig ht; and (3) prejudice to the party opposing arbitration resulting from such inconsistent acts.” Fisher
, 791 F.2d at 694. Plaintiffs have not urg ed this court to adopt any alternative approa ch, but
structure their response to meet the points Sears asser ts. Alt h o u gh fede ral case law demonstrates a number of fac tors may be considere d, the Ninth Circuit’s approa ch is suffi ci entl y broad for the purposes of this opinion. Acc ording ly
, we turn to consider the fac tors discussed in Fisher

.

¶ 31 A. Knowledg e of a n Ex isting Right to Ar

bitrate ¶ 32 Sears does not deny the plain lang uag e of the ag ree ments at issue g rants Sears a rig ht to demand arbitration. Rather, Sears argues it could not have succe ssfu l l y re l i ed on the
ag ree ments to demand arbitration until the Supreme Court issued its decision in Concepc ion

. Thus, Sears asser

ts until the arr ival of Concepc ion
, Sears did not “ know” it ha d the rig ht to demand a rbitration. ¶ 33 I n this reg ard, Sea rs believe s this case is s imilar to Fisher. The Ninth Circuit in Fisher examined whether a defe ndant’s decision not to file a motion to compel arbitra tion prior to the Supreme Court’s reje ction of the intertwining doctrine–w hich held when it was impractica l or impossibl e to sepa rate nonarbitra

ble from arbitra

ble contra ct claims, a court should deny arbitra

tion in order to prese rve its exclusive jurisdiction over fede ral secur ities claims–constituted waiver

. See Fisher
, 791 F.2d at 695. Prior to the Supreme Court’s decision in Dean W

itter Reynolds Inc . v. By rd , 470 U.S. 213 (1985), the Ninth Circuit had
approve d of the intertwining doctrine and had said in De Lancie v. Birr, W ilson & Co.
, 648 F.2d 1255 (9th Cir. 1981), arbitr at i on should be denied wher e common law claims are intertwined with secur ities law violations. Fisher
, 791 F.2d at 693. The defe ndant relied on the doctrine and the Ninth Circuit’s decision i n De Lancie in deciding n o t to file a motion
to compel arbitration, beca use it would have been “futile” prior to the Supreme Court’s ruling in Byrd

. Id

. The Ninth Circuit conclude d there was no wa iver in Fisher beca use t he d efendant was entitled to rely on the i ntertwining doctrine and that court’s prior d ec i s i o n s in deciding it wo u l d b e futile to file a motion to compel arbitration. Id

. Be cause the

-9-arbitration a g ree ment was unenfor cea ble befor e the Supreme Court’s de cision in Byrd
, the Nin t h C i rc u i t h eld the defe ndant did not act inconsistently with a known exis ting rig ht to compel ar bitration and had not wa ived the rig ht to arbitration. Id . at 697. ¶ 34 Sears argues Concepc ion wroug ht a simil ar chang e in t h e l aw

. I n Di s co ve r Bank v

. Superior Court
, 113 P.3d 1100 (Cal. 2005), the California Supreme Court held cer tain class action arbitration waiver s wer e unconsciona ble under California law and should not be enfor ced. Id

. at 1110 (quoting Cal. Civil Code § 1668 (West 1998)). I n Concepc ion
, the United States Supreme Court abrog ated the holding in Discove r Bank
, explaining the “over arc hing pur

pose” of the FA A is to “ ensure the enfor ceme nt of arbitration ag ree ments

acc ording to their terms so as to fac ilitate streamlined proce eding s” and requiring the availability of classwide arbitration “interfe res with funda mental attributes of arbitration.” Concepc ion
, 563 U.S.___, 131 S. Ct. at 1748. Acc ording ly
, the Concepc ion Court conclude d the Discove r Bank

rule wa s pree mpted by

the FA A. Id . at ___, 131 S. Ct. at 1753. ¶ 35 Sears argues, simil ar to the defe ndant in Fisher
, it did not act inconsistently with a known exis ting rig ht to compel arbitration. The Ninth Circuit, howeve r, reje cted a simil ar argument afte r the Concepc ion decision. I n Gutierrez v. W ells Fargo Bank, NA
, 704 F.3d 712, 721 (9th Cir. 2012), the court ruled the futility of an arbitration demand prior to Concepc ion was not clea r cut. The Ninth Circ uit noted “[i] n contempora neous consumer litigation, litigants did

succe ed in compelling arbitration despite the exis tence of the Discove r Bank rule.” Id

. (citing

case s). The Gutierrez court con cl uded, “[e]specially beca use the [customer acc ount ag ree men t ] did not prohibit class arbitration, a motion to compel arbitration was not inevitably futile under the presc ribed c ase- by -ca se ana ly sis.” Id

. ¶ 36 Simi larly
, in Garcia v. W achovia Corp.
, 699 F.3d 1 2 7 3 (11t h Cir. 2012), t he Eleve nth Circuit r ejec ted the argument that any motion to compel arbitration would have been futile befor e the Supreme Court decide d Concepc ion

. Acc ording to Garcia
, “abse nt cont ro l l ing Supr em e C o u rt or circ uit prec edent fore closing a rig ht to arbitrate, a motion to compel arbitration will almost never be futil e.” Id

. at 1278. The Garcia court also reje cted a more lenient “unlikely to succe ed” standard, rea soning it would only encour ag e litigants to delay arbitration and undermine one of the basic purposes of arbitration, i.e.
, the fast inexpensive resolution of d i s p u t es

. Id

. at 1279. Adopting the Eig hth Circuit’s position, the Eleventh Circuit conclude d “a party must move to compel arbitration whene ver ‘it should have been clea r to [t he party ] that the arbitration ag ree ment was at least arguably enfor cea ble.’ ” Id

. at 1278 (quoting S

o utheastern Stud & Components, Inc. v. American Eagle Design Build Studios, L LC , 588 F.3d 963, 967 ( 8th Cir. 2009)). ¶ 37 The District of Coulmbi a Circuit took an analog ous position in National Foundation for Cancer Researc h v. A.G. Edwards & Sons, Inc.
, 821 F.2d 772 (D.C. Cir. 1987), which, like Fisher
, addre ssed waiver of the rig ht to arbitrate prior to the Byrd Court’s reje ction of the “intertwining doctrine.” The District of Coulmbi a Circuit noted it had n ev er adopted the “intertwining doctrine,” either expli citly or by impl i ca tion. Id

. at 776. Acc ording ly
, the defe ndant “had no rea son to believe t h at its rig ht to arbitration was unenfor cea ble.” Id

. at 776-77. Moreove r, as the District of Coulmbi a Circuit observe d, “only three circ uits had followed the intertwining doctrine, w hile three other c ircuits had expressly reje cted it.” Id

. at 777 (citing Byrd
, 470 U.S. at 216-17). The court ruled: “[i] n this leg al climate, we fail to

-10-see how [defendant’ s] asser tion of its rig ht to arbitrate the claims cover ed by its ag ree ment with [ plaintiff] would have bee n futile.” Id

. ¶ 38 The case s cited by Sears d o n o t co m p el a contra ry conclusion. Sears relies on Curtis Publishing Co. v. Butts
, 388 U.S. 130 (1967), which considere d whether Curtis’s failure to raise constitutional defe nses in a libel case prior to New Y ork Times Co. v. Sullivan
, 376 U.S. 254 (1964), amounted to a knowing waiver

. The Court g ener ally stated “the mere failure to interpose such a defe nse prior to the announce ment of a decision which might support it
cannot preve nt a litigant from later invoking such a g round.” Curtis Publishing Co.
, 388 U.S. at 143. I n reje cting the waive r ar g ument, howeve r, the Court re asoned in re levant par t: “Althoug h our decision in New Y ork Times did draw upon ear lier prec edents in state law [citation]
, and there wer e intimations in a prior opinion and the extra-judicial comments of one J ustice, that some applications of libel law might be in conflict with the g uara ntees of fre e speec h and press, there was strong prec edent indicating that civil libel actions

wer e immune from g ener al constitutional scrutiny

. Given the state of the law prior to our decision in New Y

ork Times
, we do not think it unrea sonable for a lawy er try

ing a case of this kind, wher e the plaintiff was not even a public officia l under state law, to have looked solely

to the defe nses provided by state libel law.” Id . at 143-44. Thus, the C o u rt reje cted waiver beca use the state of the law prior to New Y ork Times indicated civil libel actions wer e immune from g ener al constitutional scrutiny

. Acc ording ly
, 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). I n that case , howeve r, the Ninth Circuit observe d Strate v. A-1 Contractors
, 520 U.S. 438 (1997), implicitl y overr uled Burlington Northern R.R. Co. v . Blackfe et Tribe of the Blackfe et Indian Reserv ation
, 924 F.2d 899, 90 4 (9 t h Cir. 1991). Big Horn County Electric Cooperative prese nted a situation simil ar to Curtis
, in which i t wo uld have been futile to asser

t an argument in light of the then-pre vailing case law. Thus, Big Horn County Electric Cooperative is also consistent with the Ninth Ci rcuit’s late r opinion in Gutierrez

. ¶ 40 Sears next cites Ack erberg v. Joh n s o n , 8 9 2 F.2d 1328 (8th Cir. 1989), in which the Eig hth Circuit stated “espe cially in case s in which any delay in making a motion to compel arbitration is based on unfavor able or uncer tain law, waiver should not be found.” Id

. at 1332. More rec ently
, in Southeastern Stud & Components, Inc.
, the Eig hth Circuit discussed this aspect of Ack

erberg : “AED BS points to Ack

erberg v. Johnson
, 892 F.2d 1328 (8th Cir. 1989), in support

o f i ts argument that it did not knowing ly waive its rig ht to arbitrate because the ‘d el ay in filing a motion t o co m p el arbitration was based on unfavor able or uncer tain law.’ (Appe llant’s Br

. at 22.) I n Ack erberg
, the defe ndants failed to file a motion to compel arbitration on a claim rela ted to the Securities Act of 1933, 15 U.S.C. §§ 77a to 77aa, in spite of an arbitration ag ree ment. Ack erberg
, 892 F.2d at 1332. At the time the complaint

was filed, the issue was controlled by W ilko v. Swan
, 346 U.S. 427, 74 S. Ct. 182, 98 L

. Ed. 168 (19 5 3 ), whi ch prohibited arbitra tion of claims made under the 1933 Act. Howeve r, afte r the complaint was filed, the Supreme Court reve rsed W ilko in Rodriguez de Quijas v. Shearson/American Express, Inc.
, 490 U.S. 477, 484, 109 S. Ct. 1917, 104

-11-L

. Ed. 2 d 526 (1989). After Rodriguez de Quijas
, the defe ndants moved to compel arbitration on the 1933 Act claims, but the district court held that the defe ndants waived their rig ht to arbitration by acting inconsistently with their rig ht to arbitration by participa ting in the lit i gat i o n proce ss. Ack erberg
, 892 F.2d at 1331. We disag ree d, explaining that befor e Rodriguez de Quijas
, the defe ndants corr ectly relied on W ilko for the proposit ion that their 1933 Act claims wer e not arbitrable, and a m otion to compel arbitration on those claims would have been futile. Id

. at 1332. Be cause the defe ndants moved to com p el ar bitration ‘as soon as the law appea red to allow an arbitration
proce dure’ and beca

use any motion to compel arbitration prior to that would have been futile, we held that th e defe ndants did not waive their rig ht to arbitra te the 1933 Act claims. Id . at 1333.” Southeastern Stud & Components, Inc. , 588 F.3d at 968. Given this discussion, it appea rs the Eig hth Circuit no longe r adher es to the Ack erberg dicta
reg arding “u n ce rtain” law. See Garcia
, 699 F.3d at 1278 (quoting Southeastern Stud & Components, Inc. , 588 F.3d at 967). ¶ 41 S ea rs further cites Fisher
, overlooking the Ninth Circuit’s subsequent reje ction of its
argument in Gutierrez

. ¶ 42 I n addition, Sears relies on a number of unpublished fe dera l district court dec isions. I n the interest of uniformity
, I llinois courts g ive considera ble weig ht to the decisions of lower fede ral courts in t er preting fede ral statutes. State Bank of Cherry v. CGB Enterprises, Inc.
, 2013 I L 113836, ¶ 35. Howeve r, this court has often declined to consider unpublished fede ral decisions. See, e.g. , Horwitz v. Sonnensche in Nath & Rosenthal, LLP
, 399 I ll. App. 3d 965, 976 (2010); Burnette v. Stroger
, 389 I ll. App. 3d 321, 329 (2009). In this case , the published fede ral appellate decisions obviate any need to consider unpublished fede ral d i s t ri ct court decisions. 5 ¶ 43 I n short, the questi o n o f wh et h er S ea rs h ad a known rig ht to arbitrate turns on the question of whether it would have been futile for Sears to invoke its rig ht to arbitration prior
to the decision in Concepc ion

. Absent controlling prec edent fore closing a rig ht to arbitrate,

a motion to compel arbitration will almost never be futile. See Garcia
, 6 9 9 F. 3 d at 1278. Thus, “a party must move to compel arbitration whene ver ‘it should have been clea r to [t he party ] t h at the arbitration ag ree ment was at least arguably enfor cea ble.’ ” Id

. (quoting Southeastern Stud & Components, Inc.
, 588 F.3d at 967). Acc ording ly
, we examine whether the agr eeme nts at i ssue were at least arg uably enfor cea ble under the co n t ro lling law at t he outset of this lit igation. ¶ 44 As previously noted, the question of whether a valid ag ree m en t t o ar b itrate exis ts is

For the pur pos e of complet ene ss, we not e: (1) two of the unr epo rt ed dec is ion s ci te d ar e 5 fr om the Nort her n Dis tr ic t of Cal if orn ia and con fl ic t wit h the Nint h Cir cui t’ s dec is ion in Guit ie rre z ; (2) two m ore unr epo rt ed dec is ion s pre dat e 2007 and thu s can not be ci te d as pre ced ent even in fe der al

cou rt (Fe d. R. App. P. 32.1 ); (3) the re m ai nin g unr epo rt ed dec is ion
, V ale nti ne v. W

ide Open W

est Fin anc ial

, LLC
, No. 09- C- 0765 3, 2012 WL 1021 809 (N.D. I ll

. Ma r. 26, 2012 ), add re sse s the wai ver is sue in a si ngle par agraph and run s con tr ar y to the det ai le d ana lyses fou nd in the fe der al app el la te dec is ion s pr evious ly dis cus sed in th is opi nio n.

-12-g ener ally a question of state law. Toyota
, 828 F. S u p p

. 2 d at 1157-58. The cre dit car d

ag ree ments in this case specific ally provide they are enter ed into in the state of Arizona and,
to the extent state law applies, the law of Arizona i s t o be applied. Hutcherson v. Sears Roebuc k & Co. , 342 I ll. App. 3d 109, 116 (2003). ¶ 45 I n its brief, Sears acknow l ed ges “[ t ] h er e i s a dear th of Arizona law addre ssing the enfor cea bility of arbitration provisions that include class action waiver s.” I n fac t, Sears does
not cite any decision from any Arizona state court addre ssing th e issue. I nstead, Sears discusses case s from other courts addre ssing the issue. Moreove r, not all of these other courts

wer e require d to attempt to apply Arizona law to decide the enfor cea bility of the arbitration provisions including class action waivers

. Three of these case s, howeve r, involved Sears

asser ting its rig ht to enfor ce arbitration ag ree ments simil ar to those at issue in this litigation. ¶ 46 For example, in Vigil v. Sears National Bank
, 205 F. Supp. 2d 566 (E.D. L a. 2002), the plaintiff consumer argued an arbitration clause simil ar to the one in this case was unconsciona

ble b ec au se it eliminated the rig ht to a jury trial and the rig ht to bring a class action. Id

. at 569. Sears arg ued both f

eder al and Arizona law mandated the enfor ceme nt of the ar bitration clause. Id . The Vigil court also noted “plaintiff can c ite to no court dec ision that has found such clause s to be unconsciona ble for the argued rea sons under Arizona or any other law.” Id

. at 573. Thus, rely ing on decision s from the Eleventh Circuit and a fede ral district court in Texas, the Vigil court co n cluded the arbitration clause was not unconsciona

ble under Arizona law. Id

. ¶ 47 I n Szetela v. Discove r Bank
, 118 Cal. Rptr. 2d 862 (Cal. Ct. App. 2002), the California Court of Appea l ruled the cl as s action waiver in the defe ndant cre dit car d company ’s arbitration ag ree ment was both proce durally and substantively unconsciona ble un d er California law. Fa ced w ith the options of either closing his acc ount or acce pting the cre dit

car d company ’s “take it or leave it” t erms, plaintiff, the Szetela court ruled, established
proce dural unconsciona

bil i t y despite the fac t he could have simply taken his business elsewhe re. Id

. at 867. The Szetela court also held the class action waiver was substantively

unconsc i o n ab l e b ecause it g ave the advanta g e to the bank, wher e customers such as the proposed class members would be essentially preve nted “fr om seeking redr ess for rela tively small amounts of money , such as the $29 soug ht by [t he plaintiff].” Id

. The court found this “manne r of arbitra

tion” was harsh and unfair, and violated both the leg islature’s stated policy of discourag ing unfair business prac tices, as well as the public policy of promoting judicial
economy , which the court noted is inhere nt in the proce dural mecha nism of the class action. Id . at 868. ¶ 48 I n Hut ch er

s o n , the issue was whether an amendment to a Sears cre dit car d ag ree ment adding arbitration clause s simil ar to those in this case was unconsciona ble. Simi lar to Vigil
, “[n] either party cite[d] to, nor did we find
, an Arizona case addre ssing whether an amendment adding an arbitration ag ree ment to a cre dit car d ag ree ment such as the one here was unconscionable.” Hutcherson
, 342 I ll. App. 3d at 117. This court, citi ng fede ral cases from other jurisdictions, as well as decisions from Alabama and Ohio, ruled the addition of the arbitration provision was not proce durally unconsciona ble under Arizona law. Id

. at 118- 20. The court, relying on Vigil and other decisions–and reje cting the rea soning of Szetela –also conclude d the ag ree ment, which included a class action waiver
, was not so one-

-13-sided or oppressive as to rende r the ag ree ment substantively unconsciona ble under Arizona law. Id . at 124. ¶ 49 I n Sears Roebuc k & Co. v. Ave ry , 593 S.E.2d 424 (N.C. Ct. App. 2004), the court, while acknow ledg ing a lack of Arizona law on point, reje cted the rea soning in Hutcherson and Vigil

. I nstead, the Ave ry court relied in pa rt on California decisions reg arding standardized
contra cts and modification of contra cts. Id

. at 429. The co u rt co n cl uded: “B eca use the arbitration clause was a wholly new term that did not fall within the univers e of subjects included in the orig inal ag ree ment, Sears did not have authority under its ‘Chang e of Terms’ provision t o co n d i t i o n continued use of its cre dit car d on acc eptanc e of the arbitration clause .” Id . at 434. 6 ¶ 50 As discussed earlier, in 2005, the California Supre me Court, adopting the re asoning in Szetela
, held cer

tain class-a ction arbitration waiver s wer e unconsciona ble under California law and should not be e nforc ed. Discove r Bank , 113 P.3d at 1110. ¶ 51 I n Cooper v. QC Financial Servic es, Inc.
, 503 F. Supp. 2d 1266, 1286 (D. Ariz. 2007)
, the fede ral district court considere d whether a class action waiver in an arbitra tion ag ree ment

was unc onscionable unde r Arizona law. T he Cooper court stated:
“I t is well-e stablished among the Arizona courts that ‘if Arizona law has not a ddresse d an issue, we “look appr ovingly to the laws of Califor nia,” e specia lly

when inter

preting

a simil ar or identical statute. The cave at to that principle, howeve r, is that we “follow the California case s in so far as their rea soning 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 Discove r Bank
, the judge in Cooper conclude d the class action waiver was unconscionable, se vere d the waive r and direc ted t he action to proce ed to class arbitration. Cooper
, 503 F. Supp. 2d at 1290-01; see also In re DirecTV Early Cancellation Liti gation
, 738 F. Supp. 2d 1062, 1081 (C.D. Cal. 2010) (similarly conclu d ing Arizona would follow California law on this iss ue). ¶ 52 Sears asser

ts “California case law was and still is the only and most valid predict o r of how an Arizona court would decide this question under Arizona law.” Accor dingly
, Sears concludes Concepc ion repr esente d a chang e in Arizona law excusing its delay in seekin g arbitration of the claims her e. ¶ 53 The fore g oing case law, howeve r, points toward the opposite conclusion. The complaints
at issue here wer e filed in 2001, 2002 and 2003. During this period, there was no controlling leg al authority in Arizona reg arding the enfor cea bility of class action waiver s in arbitration
ag ree ments. Moreove r, in Vigil and Hutcherson
, courts purporting to apply Arizona law to Sears cre dit car d ag ree ments held simil ar waiver s wer e not unconsciona ble. Sears now seeming ly disavows the very decisions Sears s o u gh t in Vigil and Hutcherson
, claiming California law should have been applied instead. S ears o v er l ooks Szetela was not decide d

Given the nature of this c ase, we note in pa ssing the Ave ry court also conclude d in 6 dicta Sears wa ived its right to ar bitrate by filing suit ag ainst Avery

. Id . at 434-35.

-14-when the complaint was filed in the Bova y litigation and was not adopted by the California Supreme Court until 2005, y ear s afte r these complaints wer e filed. Sears also overlooks the fac t that no Arizona state court ever adopted Szetela or Discove r B a n k

. S ear s cannot demonstrate it would have been futile for Sears to asser t its rig ht to arbitrate in these case s, g iven that Sears itself succe ssfully defe nded at least two of three challeng es to its arbitration
ag ree ments during the ear ly y ear s of this litigation. I t should have b een clea r to Sears the arbitration ag ree ments wer e at least arguably enfor cea ble, which should have require d Sears to move to compel ar

bitration. ¶ 54 I n short, the circ uit court did not err in ruling Sears knew of its rig ht to ar b i t rate and could have asser

ted it for y ear s afte r these complaints wer e filed, bu t d ec i d ed ag ainst
proce eding acc ording ly

. Concepc ion abro g ated the holding in Discove r Bank
, and may aff ect future decisions reg arding class action waiver s, even outside California. Neve rtheless, Sears has failed to demonstrate it would have been futile to asser t its rig ht to arbitra

te prior to the decision in Concepc ion

. ¶ 55 Following oral argument in this case , Sears obtained leave to cite American Express Co.

v. Italia n C o l o rs Restaurant
, 570 U.S. ___, 133 S. Ct. 2304 (2013), as supplemental authority to argue: (1) “cour ts must ‘rig orously enfor ce’ arbitration ag ree ments acc ording to their terms” ( id

. at ___, 133 S. Ct. at 2309 (quoting Dean W itter Rey nolds Inc.
, 470 U.S. at 221)); and (2) the United States Supreme Court “spec ifically reje cted the argument that class arbitration was nece ssary to prosec ute claims ‘that might otherwise slip throug h the leg al
sy stem’ ” (

American Express Co.
, 570 U.S. at ___, 133 S. Ct. at 2312 (quoting Concepc ion
, 563 U.S. at ___, 131 S. Ct . at 1753)). ¶ 56 Neither of these points, howeve r, assists Sears. First, while courts are require d to e nforc e arbitration ag ree ments acc ording to their terms, the ag ree ments here provided: “Ar bitration
may be elec ted at any time, reg ardle ss of whether a lawsuit has been filed or not, unless *** the other party would suffe r substantia l p re j u d i ce as a result of the delay in demanding arbitration.” Thus, when the trial court found plaintiffs would suffe r substantial prejudice as

a result of Sears’ s 10-y ear delay in demanding arbitration, it was rig orously enfor cing a term of the arbi t ra t ion ag ree ment. American Express Co.
, 570 U.S. at ___, 133 S. Ct. at 2309 (quoting Dean W

itter Reynolds Inc

. , 470 U.S. at 221). ¶ 57 Second, while the United States Supreme Court “spec ifically reje cted the arg ument that class arbitration was nece ssary to prosecute claims ‘that might otherwise slip throug h the leg al sy stem’ ” (

American Express Co.
, 570 U.S. at ___, 133 S. Ct. at 2312 (quoting Concepc ion , 563 U.S. at ___, 131 S. Ct. at 1753), the tria l court did not decide these c ases

o n this public policy g round. I nstead, the trial court followed the letter of the ag ree men t , ruling in part Sears’ s delay in demanding arbitration cre ate d s u b s t antial prejudice to the plaintiffs. We now turn to consider whether the trial court erred i n ru l i n g the delay was substantially

prejudicia l to the plaintiffs.

¶ 58 B. Inconsistent Acts Resulting in Prejudice to the Opponent ¶ 59 Sears’ s brief addre sses the re maining f actor s discussed in Fisher
, i.e.
, acts inconsistent with an exis ting rig ht and p re j u d i ce to the party opposing arbitra tion resulting from such

-15-inconsisten t ac ts, in an abbre viated fashion. Sears’ s arguments larg ely proce ed from the

premise it did not have an exis ting rig ht to arbitrate prior to Concepc ion

. As the circ uit court did not err in ruling Sears had a known rig ht to arbitrate from the inception of these lawsuits, the circ uit court did not abuse its discretion in finding Sears’ s acts wer e inconsistent with the known rig ht. Given that Sears succe ssfully asser ted its rig ht to ar b i trate in Vigil and Hutcherson (and unsuccessf u l l y asser ted t his rig ht in Ave ry ), t he acts undertaken by Sears for near ly a deca de of litigation in the circ uit court are acts entirely inconsistent with a known rig ht to de mand arbitration. Indeed, while Sears now sug g ests Hutcherson was incorre ct in its attempt to disc er n Arizona law on the enfor cea bility of the class action waiver in its arbitration ag ree ments, the decision of this court could not have been ignor ed by the circ uit court in this liti g ation. ¶ 60 Sears additionally argues plaintiffs cannot demonstrate prejudice based on the time a nd
money spent pursuing litigation plaintiffs initiated themselves. Sears primarily relies on Fisher
, which ref

ers to litigation expenses as a self-inflicte d wound. Fisher
, 791 F.2d at 698. The Fisher

court, howe ver, a lso noted plaintiffs in that case “we re parties to an a g ree ment making arbitra

tion of disputes mandatory” and violated the ag ree ment by filing their lawsuit. Id

. I n contra st, the cre dit car d ag ree ments here provide for arbitration upon elec tion of either party

. Acc ording ly
, plaintiffs’ litigation expenses cannot be char acte rized as a self-inflicte d wound in this case. ¶ 61 L astly
, Sears ass er t s i n a fo o t n o t e t o its brief various litigation expenses curr ently incurre d by plaintiffs ultimately would not be paid by plaintiffs. This asser tion, howeve r, is supported only by Sears’ s ref ere nce to plaintiffs’ failure to contra dict Sears’ s prior asser tion in their surre ply to Sears’ s reply brief on the motion to compel. On neither occa sion did Sears
prese nt evidence or ar g ument in support of its assertion. ¶ 62 The circ uit court found plaintiffs wer e prejudice d in view of the extensive litigation and mediation which occur

red during the first 10 y ear s of these disputes. I n deter mining whether the party opposing arbitration was prejudice d by delay , fede ral c ourts tend to consider: ( 1) timeliness or lack there of of the motion to arbitrate; (2) extent t o wh ich the party seeking arbitration has cont es ted the merits of the opposing party ’s claims; (3) whether the party seeking arbitration informed its adver sary of its intent to pursue arbitration prior to seeking
to e njoin the court proce eding s; ( 4) the extent to which a party seeking arbitration e ng ag ed in nonmerits motion prac tice; (5) the party ’s acquie scenc e to the court’s pretria l order s; and (6) the extent to which the parties have eng ag ed in discovery

. See, e.g. , In r e Pharmacy Bene fit Managers Antitrust

Liti gation , 700 F.3d at 117. ¶ 63 I n this case , the rec ord establishes Sears ’ s le ng thy delay in seeking arbitration. The re cord
sets forth t h at S ea rs filed a motion to dismiss and a cross-motion for summary judgme nt. Sears also participa ted in pretria l discovery
, including depositions of the plaintiffs. The trial judge found Sears fur t h er p articipated in settlement and mediation confe renc es. Sears zealously litigated the class cer tification. Given this rec ord, Sears’ s unsupported asser tion plaintiffs ultimately wo u ld not bear cer tain litigation ex penses fails to establish the circuit
court a bused its discretion in finding plaintiffs wer e pre judiced in this case. ¶ 64 I n short, Sears failed to demonstrate the circ uit court err ed in deny ing t h e m o t i o n t o

-16-compel arbitra tion. Acc ording ly
, we need not addre ss the the parties’ alterna tive arguments on appea l.

¶ 65 CONCL USI ON ¶ 66 I n sum, we co n clude the circ uit court did not err in ruling Sears had a known rig ht to demand arbitration when plaintiffs’ filed their complaints. Sears failed to establish it would have been futile for Sears to asser t its rig ht to arbitrate in these case s. Acc ording ly
, the circ uit
court did not abuse its discre tion in finding Sear s acte d inconsistently with its known rig ht
to arbitrate and prejudice d the plaintiffs by actively litigating the case for y ear s. For all of the afor ementioned reasons, the order of t he circuit court of Cook County denying the motion to compel ar

bitration and stay

proce eding s is affirme d.

¶ 67 Affir

med.

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