1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 15a0056p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

A RT S HY , et al., Plaintiffs ,

v

. N AVISTAR I NTERNATIONAL C ORPORATION , et al. Defendants , N AVISTAR , I NC ., Defendant-Appellant , S UPPLEMENTAL B ENEFIT C OMMITTEE OF T HE N AVISTAR I NTERNATIONAL T RANSPORTATION C ORP

. R ETIREE S UPPLEMENTAL B ENEFIT P ROGRAM , Intervenor-Appellee

. ┐ │ │ │ │ │ │ │ │ │ │ │ │ │ ┘ No. 14-3251

Appeal from the United St ates District Court for the Southern District of Ohio at Dayton. No. 3:92-cv-00333—Walter H. Rice, District Judge. Argued: January 14, 2015 Decided and Filed: March 27, 2015
Before: SUHRHEINRICH, CLAY, and ROGERS, Circuit Judges.

_________________ COUNSEL

ARGUED: Sally J. Scott, FRANCZEK RADELET, P.C., Chicago, Illinois, for Appellant. Sarah A. Zumwalt, GROOM LAW GROUP, CHAR TERED, Washington, D.C., for Appellee. ON BRIEF: Sally J. Scott, David P. Radelet, Abizer Zanzi, William R. Pokorny, FRANCZEK RADELET, P.C., Chicago, Illinois, David P. Pierce, COOLIDGE WALL CO., L.P.A., Dayton, Ohio, for Appellant. Sarah A. Zumwalt, Edward A. S callet, GROOM LAW GROUP, CHARTERED, Washington, D.C., Kevin L. Murphy, GRAYDON HEAD & RITCHEY LLP, Fort Mitchell, Kentucky, for Appellee.
ROGERS, J., delivered the opinion of the c ourt in which SUHRHEINRICH, J., joined. CLAY, J. (pp. 15–23), delivered a separate dissenting opinion. 

### >No. 14-3251 Shy, et al. v. Navistar Int’l Corp., et al. Page 2

_________________ OPINION

_________________ ROGERS, Circuit Judge. This appeal concerns whether a particular contractinterpretation dispute involving cor porate structure is subject to th e provision in the contract for arbitration by an accounting firm, and also whethe r the party seeking arbitration waived its right to arbitrate through its conduct be fore and during litigation. Unde r a consent decree in a lawsuit relating to employee retirement benefits, Navistar makes annual contributions to a Supplemental Benefit Trust managed by a Supplemental Benef it Committee (SBC). The size of Navistar’s contributions is determined by a formula provided in the agreement that takes as inputs data on Navistar’s economic performance, and Navistar must under the agreement regularly provide data to the SBC to permit it to evaluate whether Na vistar is applying the formula correctly. The agreement provides for arbitration before an accoun ting firm in the event that the SBC disputes
the “information or calculations” Navistar provides to it. The SBC intervened in the original lawsuit, ultimately claiming that Navistar wa s improperly classifying various aspects of its business activities and structuring its business so as to evade its profit-s haring obligations under the agreement. Navistar claimed that under the accountant arbitration m echanism provided for in the agreement, which applies to disputes over the “information or ca lculations” provided by Navistar, the SBC’s claims were s ubject to arbitration. The distri ct court correctly agreed with
Navistar that the claims were subject to arbitration. However, co ntrary to the district court’s ruling, Navistar’s conduct before and during litigation did not amountto a waiver of its right to
arbitrate the claims. Arbitr ation is therefore required.

The arbitration clause at issue is contained in a settlement agreement and consent decree in a class action lawsuit ( Shy et al. v. Navistar International Corporation ) relating to Navistar’s obligations to its retire d employees. As part of the agreem ent and consent decree, Navistar had an obligation to make yearly profit-sharing payments to a Supplemental Benefit Trust. The agreement created the SBC as the fiduciary and admi nistrator of the Supplemental Benefit Trust. The methods for calculating and enforcing Navist ar’s obligation were outlined in a Profit Sharing Plan (Plan) attached as an appendix to the agreement and decree. Section 8 of the PlanNo. 14-3251 Shy, et al. v. Navistar Int’l Corp., et al. Page 3

required a regular report by Navistar to the SBC of financial information necessary to confirm that Navistar was making contri butions in the amounts required by the plan. Section 8 also contains a dispute resolution clause that requires disputes over the “information or calculation[s]” provided by Navistar to be referred for binding dete rmination to an accountant (or other neutral decisionmaker) chosen by the pa rties. In full, the clause provides:
8.4. If, following a review of the inform ation and calculations provided pursuant to Sections 8.1, 8.2, and 8.3 the [SBC] disput es such information or calculation[s], it shall inform the Company of such disput e within 30 calendar days of the receipt by the UAW and the [SBC] of such info rmation. The Company and the [SBC] shall thereafter attempt, for a period not to exceed 30 calendar days, to resolve such dispute. 8.4.1. If such dispute cannot be resolved during that period, th e parties to that dispute will attempt to identify a mutu ally acceptable third party (such as an accounting firm) to resolve such disputes. 8.4.2. If the parties to such dispute ca nnot identify a mutually acceptable third party to resolve such dispute, the parties to such dispute sha ll obtain a list of the seven largest accounting firms, measur ed by the number of certified public accountants practicing in the United Stat es. The Company and the [SBC] shall then alternately, beginning with the Company, strike one name off such list until only one name remains. The remaining fi rm shall be empowered to resolve the dispute. 8.4.3. Following selection of the party to resolve the dispute as provided in Section 8.4.1 or 8.4.2, the parties to the dispute shall present evidence and argument in support of their position and the individual or firm shall render a decision which shall be final and bind ing on all parties to the dispute.
On July 2, 2009, the SBC sent Navistara letter requesting additional financial information and disputing Navistar’s classifi cation of Medicare Part D subsidies in its calculations of its profit sharin g obligations. On August 3, 2009, Navistar replied, providing at least some of the requested information and d eclining to pursue disput e resolution over the Medicare subsidy classification issue on the grounds that recla ssifying the subsidies would not affect Navistar’s overall obligations. On May 4, 2010, the SBC formally re quested that Navistar arbitrate the Medicare subsidy is sue and additionally requested ot her financial information. It appears that Navistar did not respond directly, but instead provided updated financial information (without directly addressing the SBC’ s requests for arbitration and information) on April 6, 2011. On November 14, 2011, the SBC ag ain requested more detailed financialNo. 14-3251 Shy, et al. v. Navistar Int’l Corp., et al. Page 4

information and threatened to go to court if Navistar failed to provide it . On February 15, 2012, Navistar replied to the SBC, listing general an d itemized objections to the SBC’s information requests. Navistar also noted that it had not specifically res ponded to the SBC’s May 4 request because its response depended on ongoing litigat ion with the original parties to the Shy agreement.
On March 23, 2012, the SBC filed a motion to intervene in the Shy litigation, followed shortly by a motion to enforce the settlement agr eement, seeking an order requiring Navistar to provide the information the SBC had requested. On April 13, 2012, Navistar filed a motion for extension of time seeking the court’s permissi on to delay Navistar’s response to the SBC’s motion to enforce until after the court ruled on the SBC’s motion to intervene. On April 25, 2012, Navistar filed a response to the SBC’s motion to intervene, arguing that the SBC’s intervention was not proper. On February 6, 2013, the district court granted the SBC’s motion to
intervene with instructions for the SBC to f ile a complaint, which it did on February 15, 2013. On March 11, 2013, Navistar filed a response to th e SBC’s motion to enforce, as well as a motion to dismiss the SBC’s subsequent comp laint, arguing for the first time, among other things, that the SBC’s requests for information were subject to the alternative dispute resolution procedures outlined in the Plan. On March 29, 2013, the district court sustained the SBC’s motion to enforce, finding that its dispute over what information Navist ar had to provide under the Plan was not subject to the alternative disput e resolution procedures, a nd ordering Navistar to provide the information requested by the SBC. After Navistar provided this information, the SBC on August 21, 2013 filed a motion to amend its complaint, charging that Navistar had manipulated its corporate structure and accounti ng analysis to eliminate its profit-sharing obligations, in violation of the terms of the Plan. In particular, the SBC alleged the following
four violations:
(1) forming entities which [Navistar] then treats as acquired businesses [treated more favorably from Navistar’s point of view under the Plan] and then reallocating their revenues or not prope rly or completely allocating costs and expenses among the Covered Operations; (2) excluding dividends and similar payments from the calculation of Qualif ying Profits; (3) excl uding . . . Medicare Part D subsidy payments from the calculation of Qualifying Profits; and (4) failing to exclude Bonus Eligible employees from the calculation of Qualifying Hours.No. 14-3251 Shy, et al. v. Navistar Int’l Corp., et al. Page 5

After the district court granted leave to amend, Navistar moved to dismiss the SBC’s amended complaint on the ground that the questions it rais ed were subject to ar bitration under the Plan.

On March 6, 2014, the district court denied Navistar’s motion to dismiss the SBC’s amended complaint. The district court found th at in all of the allegations in the amended complaint, the SBC was disputing the “informa tion or calculations” provided by Navistar, and
that therefore these claims fell unde r the scope of the arbitration cl ause. However, the court also held (although the SBC had not ar gued) that Navistar had waived its right to arbitrate those questions through its behavior before and duri ng litigation. In partic ular, the court noted
Navistar’s reluctance to enter into arbitrati on over the Medicare subsidy payments prior to litigation, and the fact th at Navistar did not seek to arbitr ate the SBC’s first claim requesting information until after the court granted the SBC’ s motion to intervene. The court found that these decisions were “completely inconsistent w ith any reliance on the Plan’s dispute resolution procedures,” and also caused a delay that prej udiced the SBC by delaying the resolution of the dispute and any payments that the SBC might be entitled to. The di strict court denied Navistar’s motion to dismiss, and Navistar appeals. See 9 U.S.C. § 16(a)(1)(B).
The SBC’s claims against Navistar are all subj ect to arbitration, as th e district court ruled, notwithstanding the SBC’s argument for affirmance on the alternative ground that the claims are not subject to arbitration under the arbitration clause. In each cl aim the SBC is “disput[ing] . . . information or calculation[s]” re garding Navistar’s obligations to the Supplemental Benefit Trust that Navistar provided under its reporting obligations under the se ttlement agreement. This places each claim within the scope of the arbitration clause.
The parties do not dispute for purposes of this appeal that § 8.4 is an arbitration agreement—albeit one with a narrow scope—to which the Federal Arbitration Act (FAA) applies. The First Circuit has persuasively held that the following elements, all present in this case as well, amounted to “arbitr ation in everything but nam e”: finality, “an independent adjudicator, substantive standards (the contractual terms . . .), and an opportunity for each side to present its case.” See Fit Tech, Inc. v. Bally Total Fitness Holding Corp. , 374 F.3d 1, 7 (1st Cir. 2004). The FAA applies even when the agreemen t is limited to only a particular class of disputes. Id.No. 14-3251 Shy, et al. v. Navistar Int’l Corp., et al. Page 6

Because the SBC’s claim, at its core, is thatNavistar misclassified various aspects of its business, resulting in incorrect information bei ng provided to the SBC, the SBC’s claims are within the scope of the arbitr ation agreement. Disputes ov er how earnings, hours worked, and similar aspects of a business should be categorized for the purposes of an accounting analysis are disputes over “information.” To the extent th at the SBC’s claims extend beyond categorization to the operational practices of Navistar, the claims are so closely tied to the information provided to the SBC that the arbitration agreement still applies.
The SBC, in its underlying claims, disputes the categorization of various aspects of
Navistar’s business in the re ports Navistar provides, and so the SBC is disputing the “information” provided by Navi star. The SBC’s claims—aboutwhether subsidiaries are “businesses acquired,” about the inclusion of various revenue sources and Medicare Part D subsidies in “Qualifying Profits,” and about the inclusion of the hours of certain workers in “Qualifying Hours”—all di rectly concern the “inf ormation” provided by Na vistar pursuant to its obligations under Section 8. In the agreement, “information” re fers to the contents of “a worksheet detailing the calculati on of the Contribution obligation, the Qualifying Hours, and the Qualifying Profits, [including] a listing by categor y of the employees included and excluded in the calculation of Qualifying H ours and all information reasona bly necessary to review the calculation of Qualifying Profits.” If—taking one of the SBC’s claims as an example—some employees were wrongly included in the calculatio n of Qualifying Hours when, under the terms of the contract, they should have been exclud ed, then the information in the worksheet is incorrect. The arbitration agreement applie s when the SBC “disputes information or calculation[s]” provided by Navist ar, and is not limited by its terms to disputes over the
calculations involved. If the SBC disputes Navistar’s classificat ion of employees, it is plainly disputing the information Navistar has provided in its worksheet and its dispute is subject to
arbitration. Thus the SBC’s classificati on disputes are subject to arbitration.
It is true that classification disputes, unlike calculation disputes, potentially involve questions of contract interpreta tion as well as accounting, but this does not fall outside the plain text of the arbitration agreemen t, for two reasons. First, th e accountant-based nature of the dispute resolution procedure at mo st creates some ambiguity as to whether the scope of disputesNo. 14-3251 Shy, et al. v. Navistar Int’l Corp., et al. Page 7

over “information or calculation[s]” was intended to be restricted to dis putes in which no legal analysis whatsoever might be necessary. Howe ver, the otherwise unqua lified language of the agreement trumps any assumption th at the parties would not have co mmitted legal disputes to an accountant’s resolution. The ambiguity—if ther e is any—must be “r esolved in favor of
arbitration” even when an arbitra tion clause is limited in scope. Bratt Enters. v. Noble Int’l Ltd. , 338 F.3d 609, 613 (6th Cir. 2003) (quoting Volt Info. Scis., Inc. v. Bd. of Trustees of Leland Stanford Junior Univ. , 489 U.S. 468, 476 (1989)).
Second, the contract disputes involved in the SBC’s classification-based arguments are relatively simple and closely related to accounting; it is reasonable to suppose that the parties to the agreement intended such disputes to be ar bitrated. To support its claim that Navistar misclassified newly formed subsidiaries as “businesses acquired,” the SBC points in its complaint to the agreement’s invocation of “gen erally accepted accounti ng principles.” The
SBC’s second and third claimed contract violati ons relate to particular components of the Qualifying Profits calculation—income and di vidends from acquired foreign entities and Medicare Part D subsidies. At first blush, the contract interpretation issues here appear to depend on questions of accounting—whether foreign entities were controlled by Navistar and whether the subsidies constituted “income.” Also, the SBC’s fourth claimed violation concerns whether employees were proper ly classified as “Bonus Eligible” for the calculation of “Qualifying Hours.” This appears to depend on how employees were compensated, which again is likely to be an area that accountants are familiar with. When accountants analyze businesses’ balance sheets, they necessarily categorize vari ous aspects of the businesses’ performance in order to find the inputs to calculations. Thus it appears that an accountant arbitrator could
resolve the SBC’s claims effectivel y, at least to the extent that they concern classifications in what is essentially an accounting analysis. In Fit Tech , while declining to order accountant arbitration for allegations of “business misc onduct unrelated to accounting conventions,” the
First Circuit nonetheless ordere d accountant arbitration for “acc ounting issues.” 374 F.3d at 8.

While two of the SBC’s claimed violations —Navistar’s creation of and reallocation of profits to subsidiaries, and its exclusion of dividends earned from subsidiaries—are phrased in part as though they were operational violations involving busi ness misconduct, they are stillNo. 14-3251 Shy, et al. v. Navistar Int’l Corp., et al. Page 8

subject to arbitration. To the extent that they are operational issues ra ther than classification issues, they are still so closely connected to the information Navistar provides to the SBC that they count as disputes over that information. The SBC claims that Navistar created a number of domestic and foreign subsidiaries that it classifi ed as “acquired businesses,” a classification that reduced the obligation to the Supplemental Benef its Trust created by the subsidiaries’ profit. Further, Navistar structured th ese subsidiaries in a way that minimized its obligations, for example, by having a foreign subs idiary not subject to the set tlement agreement “nominally purchase” other subsidiaries. At bottom, these ar e classification disputes rather than operational disputes. The SBC alleges that the economic substa nce of Navistar’s busine ss is not reflected in
the structure of its subsidiaries , but it does not allege, for instan ce, that Navistar substantively hurt the performance of any aspects of its business in order to reduc e its obligations. In contrast,
in Fit Tech , the plaintiffs alleged—in a portion of th eir claim the First Circuit held was not subject to arbitration—that the defendants actively directed custom ers away from fitness centers whose profits determined the defendant s’ obligations to the plaintiffs. Id. at 4. At its core, then, the SBC’s claim appears to be that Navistar’s use of subsidiaries doe s not alter the economic reality of its business and should not alter the accounting analysis of its prof it sharing obligations. Since the operationa l decisions the SBC complains of affected only the information provided to the SBC and not the su bstance of Navistar’s business, these are still disputes about
information.
We have twice required accounta nt arbitration for operational disputes direc tly affecting information relevant to accounting. JPD Inc. v. Chronimed Holdings, Inc. , 539 F.3d 388, 391 (6th Cir. 2008); PureWorks, Inc. v. Unique Software Solutions, Inc. , 554 F. App’x 376, 378 (6th Cir. 2014). In JPD , the arbitration clause required arbi tration for disputes over an earnings calculation, and also “all issues having a bearing on such dis pute.” 539 F.3d at 391. We held that this language applied to allegations that th e defendant had engaged inbusiness practices that had hurt the business whose earnings were at issue, in violation of “cont ractual commitments to maximize earnings.” Id. The language in the arbitration agreement in this case is slightly
narrower: arbitration is re quired only when the SBC “disputes [the] information or calculation[s]” provided by Navistar, and not wh en it merely has a dispute bearing on the information. But the operational dispute in JPD was less closely connected to accountingNo. 14-3251 Shy, et al. v. Navistar Int’l Corp., et al. Page 9

calculations than in Navistar’s case, as the defendant’s alleged misconduct in JPD affected the performance of the business (hur ting the business of entities w hose earnings were subject to profit sharing) as well as the information pr ovided. In short, opera tional disputes may be committed to accountant arbitration, if the la nguage of the arbitration clause, as in JPD , can fairly be read to cover such disputes.

The accountant arbitration clause in PureWorks applied to “disagreement[s] as to any item included in the [earnout report],” language that is much closer to this arbitration agreement. 554 F. App’x at 378 (second alteration in the orig inal). In an unpublished opinion, we required arbitration of “operational disagreements affec ting the earn-out report—including disputes about performance of the earn-out covenants.” Id. Such disputes “concern and affect the numbers that were included in the earn-out report,” and th erefore were at least arguably included in the
arbitration clause. Id. at 380. This analysis applies equally to the operational disputes here. The SBC challenges Navistar’s corpor ate structure not fundamentally be cause it wishes to restructure the company but because it wishes to change the way business information was reported by Navistar; the SBC cares about ope rations only insofar as they a ffect the account ing. It is plausible to interpret “dispute the information [p rovided by Navistar]” as including a claim that the information ought to change be cause the corporate structure the information reflects violates the settlement agreement. Therefore, the fe deral policy in favor of arbitration requires
arbitration. As we held inNestle Waters North America, Inc. v. Bollman , the strong federal policy in favor of arbitration resolves any doubt s as to the parties’ intentions in favor of arbitration. 505 F.3d 498, 503 (6th Cir. 2007).

In addition, Navistar did not waive arbitration. Navist ar’s pre-litigation conduct and failure to raise arbitration in its response to the SBC’s motion to intervene at the start of litigation did not constitute a waiver of its right to arbitrat e the claims raised by the SBC. A party waives arbitration if it acts in a manner “completely in consistent with any reliance on an arbitration agreement” or delays asserting ar bitration “to such an extent th at the opposing party incur[red] actual prejudice.” Hurley v. Deustsche Bank Trust Co. Americas , 610 F.3d 334, 338 (6th Cir. 2010). Both inconsistency and act ual prejudice are required, and neither is present here. In contrast, inJohnson Associates. Corp. v. HL Operating Corp. , 680 F.3d 713, 720 (6th Cir. 2012),No. 14-3251 Shy, et al. v. Navistar Int’l Corp., et al. Page 10

we held there was waiver after holding that both factors were present. Moreover, much of
Navistar’s conduct at issue here concerned a question that the dist rict court has already decided: whether Navistar must comply with the SBC’s request for information. Even if Navistar’s conduct waived Navistar’s right to arbitrate that que stion, the conduct wa s consistent with reliance on the arbitration agreement for resolution of disputes arising afte r Navistar supplied the
information.

The district court’ s ruling on waiver reli es on the following actio ns by Navistar, which
are a subset of the total interactions between Navi star and the SBC that led to the present dispute:
1. On August 3, 2009, Navistar declined the SBC’s request to arbitrate the classification of Medicare Part D subsidies, claiming that even if the SBC prevailed this would not affect Na vistar’s obligations under the plan. 2. Navistar did not respond to a furthe r notice of dispute sent on May 4, 2010 by the SBC relating to Navistar’s treat ment of Medicare Part D subsidies and requesting further information a bout the company’s finances; in its next letter on April 6, 2011, Navistar simply provided an update as to its calculation of qualifying profits an d did not mention the dispute. 3. On April 25, 2012, Navistar opposed the SBC’s motion to intervene (in which the SBC sought an order comp elling Navistar to provide the information required by the Plan) without raising arbitration as a defense. Navistar first argued that arbitration was required on March 11, 2013 in its answer to the SBC’s complaint and its simultaneously filed reply to the SBC’s motion to enforce the settlement agreement.
None of these three actions, individually or as a whole, amounts to a waiver of
arbitration. Navistar’s letter to the SBC regarding Medicare Part D subsidies on August 3, 2009—item 1 in the list above—explicitly acknowledge s that, in the abstract, a dispute over the
classification of the subsidies is arbitrable. In declin ing to arbitrate the dispute on the grounds that in no event would Navistar owe payments to the Supplemental Benefit Trust, Navistar noted: “[W]e must at this time respectfully dec line your request that the parties initiate the dispute resolution procedures in the Plan, as the dispute you iden tify has no impact whatsoever on the profit sharing payments due . . . . Navist ar will agree, however, that this issue has been timely raised by the [SBC] in the event the dispute becomes material in any future year.” This appears to be a reference to the requirement in § 8.4 of the Plan—the arbi tration clause of the agreement—that the SBC notify Navistar of any dispute within 30 days of the receipt of theNo. 14-3251 Shy, et al. v. Navistar Int’l Corp., et al. Page 11

information that the dispute is about. Such a statement is completely consistent with a willingness to arbitrate.
Navistar’s failure to respond to the S BC’s May 4, 2010 notice of dispute as to the
Medicare Part D subsidies—item 2 in the list above—is more concerni ng, but it still does not come close to waiver. Ignoring a formal invocation of arbitration pr ocedures (if that is in fact what Navistar did, and the reco rd does not provide evidence othe rwise) is consistent with reliance on arbitration, at least in these circumstances. There is no evidence in the record that the SBC explained, either in its May 4 notice or at any other time, why it believed that the dispute over the subsidies was not moot, as previously suggested by Navistar. Navistar may have ignored the notice, therefore, not because it disc laimed reliance on arbitration but simply because it still considered the dispute m oot and doubted that it was worth the SBC’s time to pursue that matter. We have repeatedly determined that there was no waiver when a party refused to arbitrate, prior to the commencem ent of litigation, on th e grounds that its opponent’s claims were substantively weak. JPD Inc. , 539 F.3d at 394; Highlands Wellmont Health Network, Inc. v. John Deere Health Plan, Inc. , 350 F.3d 568, 574 (6th Cir. 2003). A reply explaining why Navistar was unwilling to arbitrate would have been helpful, but in the context of its previously
stated reason for not arbitrati ng, Navistar’s silence can easily be seen, in the words of the Highlands decision, as “the typical posturing that may occur where one party is attempting to ‘stare down’ the other party in the hope that the other party will simply give up.” 350 F.3d at
574. This silence is therefore consistent withreliance on arbitration and not sufficient for
waiver.
Moreover, Navistar’s pre-litigation behavi or did not delay proceedings in a way that actually prejudiced the SBC. While the dispute over the subsidies is still unresolved several years after Navistar’s indiffere nce to the SBC’s request for ar bitration, this delay cannot be solely attributed to Navistar. The SBC could ha ve sought a court order compelling arbitration at any time after Navistar refused to arbitrate the issue, but it neve r did so and now argues that the question is not subject to arbitr ation. Navistar’s conduct is thus not the sole cause of any prejudice the SBC may have suffered.No. 14-3251 Shy, et al. v. Navistar Int’l Corp., et al. Page 12

Waiver can also not be inferred from Navistar’s delay, once litigation commenced, in seeking arbitration of what information it had to pr ovide to the SBC. Navi star raised arbitration
as a defense in its second substa ntive submission in the litigation. 1 In its first, its opposition to the SBC’s motion to intervene, Navistar argued only that the SBC’s intervention was improper. It sought to delay any respons e to the SBC’s claims—includi ng defenses that might force
dismissal—until the district court determined th at the intervention was proper to begin with. This approach is reasonable. In this context, Navistar’s suggestion that the SBC could have filed a complaint in new litigation does not amount to acknowledging that litigation was the appropriate dispute resolution me thod. Instead, the court overse eing the new litigation, and not
the Shy litigation court, would have resolved Navistar’s objections to the SBC’s suit for information, including the applicabi lity of arbitration. This proce dural posture distinguishes this
case from Johnson Associates , in which we held there was a waiver of arbitration when the
defendant failed to raise arbitration as a defense in its answer to the plaintiff’s complaint. 680 F.3d at 718. Navistar’s resp onse to the SBC’s motion to in tervene properly did not raise
arbitration as a defense because the motion addressed only the SBC’s right to intervene and not the validity of the SBC’s claims. In this context, arguing that the SBC ought to bring a fresh lawsuit instead of intervening does not waive ar bitration because it does not imply a willingness to litigate the substantiv e dispute, only a desire to raise all defenses, including arbitration, in the context of fresh litigation.

A further distinction with Johnson Associates lends additional support for this point. In that case, the defendant engaged in litigation, in cluding discovery, after not raising arbitration in its answer and before invoking it. Id. at 720. That is not the case he re. Between its response to
the SBC’s motion to intervene and the court’s decision to allow th e intervention, Navistar did not actively pursue litigation in any way. Its only substantial filing on the record was a response to the SBC’s motion to amend its motion to enforce the settlement agreement, in which it simply reiterated its position that it w ould respond to the motion to enfor ce after the distri ct court ruled

1 Navistar’s motion to dismiss the SBC’s first complain t and response to the SBC’s motion to enforce did not use the word “arbitration,” but both argued that th e SBC’s claims were subject to the dispute resolution procedure identified in the Plan and were therefore not properly before the district court. Th e district court correctly held—and the SBC does not dispute—that these arguments in effect invoked arb itration. In these filings, Navistar affirmatively displayed its desire to submit the SBC’s clai ms to the alternative dispute resolution procedure and its belief that the Plan required Navistar and the SBC to do so. This is sufficient to invoke arbitration.No. 14-3251 Shy, et al. v. Navistar Int’l Corp., et al. Page 13

on the motion to intervene. Thus Navistar’s conduct did not suggest that it intended to litigate
rather than arbitrate its dispute with the SBC.
Navistar’s not engaging in litigation while the SBC’s motion to enforce was pending also means that it did not prejudice the SBC by failing to raise arbitration earlier. In the context of a motion to amend a complaint, “[d]elay alone, . . . without any specifically resulting prejudice, or any obvious design by dilatori ness to harass the opponent, shoul d not suffice as reason for
denial.” Moore v. City of Paducah , 790 F.2d 557, 562 (6th Cir. 1986) (quoting Davis v. Piper Aircraft Corp. , 615 F.2d 606, 613 (4th Cir. 1980 )). Adopting this rule in the waiver context, we
held that the defendant in Johnson Associates caused prejudice by delaying its invocation of arbitration because the plaintiffs had expended expe nse and effort in discovery that would not be helpful in arbitration. 680 F.3d at 720. That is not the case here, because the litigation did not
advance at all while the SBC’s motion to intervene was pending, so the SBC wasted relatively few resources on unnecessary litigation.
Finally, the SBC was not prejudiced because of Navistar’s allegedly untimely request for arbitration of a dispute that was not subject to arbitration in the firs t place. All of the claims in the SBC’s amended complaint except for the disput e as to the classificati on of Medicare Part D
subsidies arose after the actions by Navistar that allegedly constitute waiver. The district court
allowed the SBC’s motion to intervene and ordered Navistar to provide the information that the SBC requested, in the process ruling that the di spute over whether Navi star was obligated to provide the requested information was not subject to arbitration. 2 The SBC subsequently amended its complaint to include further specific claims as to the information and calculations provided by Navistar, and it is the arbitrability of those claims that is now at issue. Thus even if Navistar’s conduct waived the right to arbitrate the extent of its re porting obligations to the SBC, it does not make sense to apply that waiver to dis putes that arose after it (finally) fulfilled those obligations. Had Navistar not attempted to arbitrat e the extent of its reporting obligations at all and left the arbitration defense out of its answer to the SBC’s first complaint, the course of

2 The SBC’s motion to enforce put Navistar on no tice that the SBC suspected that Navistar was “intentionally manipulating the placement of revenues and costs in its variou s business units” to reduce its profitsharing obligations, but the motion did not seek relief for harm arising from such manipulation and did not explicitly state that the SBC intended to litigate rather than arbitrate any claims arising from such manipulation. Instead, the motion only explicitly requested that the district court order Navistar to provide the information required by the Settlement Agreement.No. 14-3251 Shy, et al. v. Navistar Int’l Corp., et al. Page 14

litigation would have been unaffecte d. It would then be unreasonabl e to maintain that Navistar’s
failure to seek arbitration of an issue that the district court found was not covered by the
arbitration clause waived Navistar’s right to seek arbitration of other disputes. Even if Navistar’s eventual attempt to arbitrate the preliminary que stion of how much information it had to provide to the SBC proved that its prior conduct was a ba d faith attempt to delay the resolution of the dispute, the SBC was not harmed by Navistar’s behavior. This is because the question Navistar tardily sought to arbitrate could not be arbitrated in the first pl ace; seeking to arbitrate earlier would not in itself have advanced proceedings. While Navistar may bear some responsibility for the long duration of its dispute with the SBC, its behavior with regard to arbitration does not satisfy the particular elements of waiver.
For the foregoing reasons, the district court’s decision is VACATED and REMANDED
with instructions to order arbi tration of the claims in the SBC’s Second Amended Complaint.No. 14-3251 Shy, et al. v. Navistar Int’l Corp., et al. Page 15

_________________ DISSENT

_________________ CLAY, Circuit Judge, dissenting. I respectfully dissent. I cannot conclude that the parties to the Shy Agreement in § 8.4 of the Profit Sharing Plan (“PSP”) agreed to submit a dispute of these dimensions to ar bitration. Even if the dispute we re arbitrable, I would find that Navistar waived its right to require arbitrat ion by engaging in an unmistakable campaign of avoidance and delay both before and after th e SBC intervened to enforce the settlement agreement in the instant litigation. Rather than zealously guarding its right to require arbitration of the instant dispute, Navistar sat quietly on that right until receiving an adverse ruling from the district court. Those are precisely the circumst ances in which this Court has found waiver in the past, and the majority errs in stra ying from that precedent today.

I.

A more direct statement of th e factual background to this ca se is perhaps necessary. As this Court recently summarized, the underlying li tigation was filed as a class action in 1992 “when Navistar attempted to re duce its costs for retired employ ee health and life insurance
benefits.” Shy v. Navistar Int’l Corp. , 701 F.3d 523, 526 (6th Cir. 2012). Navistar claimed it would become insolvent if it were required to comply with its obligation to retirees. Id. Under the threat of facing even deeper cuts to retirees’ benefits if the company entered bankruptcy, the retirees’ representatives negotiated a settlement to restructure the level and funding of those
benefits. Shy v. Navistar Int’l. Corp. , No. C-3-92-222, 1993 WL 13186 07 (S.D. Ohio May 27, 1993). The district court, though expressing concern that “the settlement agreement will impose hardship on many retirees,” in due course accepted the agreem ent of the parties (“the Shy Agreement”) and entered it as a consent decree. Id. at *1, *12-13.
The Supplemental Plan, which is at the heart of the dispute before this Court today, formed a central component of the Shy Agreement. The Shy Agreement replaced retirees’ prior benefits package with two plans: the “Base Plan” and the “Supplemental Plan.” Id. at *4. The Base Plan dramatically cut re tirees’ basic life and health insurance benefits and reducedNo. 14-3251 Shy, et al. v. Navistar Int’l Corp., et al. Page 16

Navistar’s funding obligation to well belo w half its pre-settlement value. Id. In accepting the Shy Agreement, the district court noted that the painful cuts to retirees would be offset by the Supplemental Plan, explaining:
[T]he Supplemental Plan, which is a truly innovative concept, turns over much of the ownership of Navistar to the very retirees who must sacrifice benefits under the settlement agreement, a Plan which could well alleviate some (perhaps as much as one-half or more) of the hardship which the settlement will require retirees to endure. The Supplemental Plan is a trust which will be administered by retirees and their representatives. Navist ar must contribute 50% of the shares of its common stock and a portion of its future profits to the tr ust established under the Supplemental Plan. The income generated by the Supplemental Plan can be used, for instance, to reduce the premiums which retirees must pay for their health insurance. Thus, if the retirees' sacrifices allow Navistar to return to prosperity, the retirees will own a significant share of the consequent gain in the value of the company.
Id. The SBC was formed to administer the Suppl emental Plan. The terms governing the profit sharing element of the Shy Agreement are containe d in a document referred to by the parties as the Profit Sharing Plan, or “PSP.” Navistar’s obli gation to pay a portion of its profits to fund the Supplemental Plan, however, is a constituent part of the larger settlement agreement and consent
decree.
The PSP sets the amount of Navistar’s profit to be contributed to the Supplemental Plan as a function of the performan ce of certain “covered operations ” and the number of qualifying hours worked by employees in those covered ope rations. Covered opera tions, in turn, are defined in the PSP quite broadly to include Navist ar International Transp ortation Corporation, its parent company Navistar International Corporat ion, and “their successo rs and all of their affiliates and subsidiaries, with the exception of Navistar International Corporation Canada.” (R. 399-5, PSP, PGID 1668.) The PSP also includes provisions for the treatment of any entities acquired after the effective date of the agreement, with profit-sharing obligations for those entities varying based on the percent ownershi p by Navistar and whethe r the acquisitions are
located in the United States.
Each year from 1994 to 2000, Navistar made contributions of varying—but generally substantial—size pursuant to the PSP, ranging in amount from $100,000 in 1995 to $71.6 million in 1999. In 2000, however, the annual contribution dropped to zero and remained there, with theNo. 14-3251 Shy, et al. v. Navistar Int’l Corp., et al. Page 17

sole exception of a $1.4 million contribution paid in 2004. The company now claims that the $1.4 million contribution was paid in error. As alleged in SBC’s amended complaint, Navistar has claimed not to owe any prof it sharing contribution under th e PSP even in years where the company as a whole reported a net income of hundred s of millions or even billions of dollars.
This outcome stands in marked contrast to the terms of the Shy Agreemen t that call for Navistar to contribute a portion of its prof its to the Supplemental Plan, a nd to the PSP provisions that so broadly define the covered operations. While Navistar’s contributions under the Profit Sharing Plan have dwindled to zero, the corporate stru cture has shown a marked increase in the number of business entities owned or controlled by Navistar and its affiliates, a development that the SBC believes reflects a concerted effort to shield the company’s profits from its obligation to the Supplemental Plan.
In the years prior to intervening in th e litigation, the SBC encountered significant difficulty obtaining information fr om Navistar that the company was obligated to disclose under the PSP. The company excused its failure to provide timely profit shar ing calculations and
disclosures based on a restatement of its financial results following irregular audit results and an investigation by the SEC. Beginning in 2009, the SBC sent a number of letters to Navistar requesting additional information and attempting to initiate a dispute resolution process under § 8.4 of the PSP regarding the company’s calcula tion of the amount it owed to the Supplemental Plan. By 2011, the SBC’s information requests focu sed on Navistar’s corpor ate structure and its allocation of costs and revenues among subsidiaries and allied entities for purposes of the PSP. These efforts were unsuccessful, as described in the majority opinion, prompting the SBC to move to intervene in the litig ation in order to enforce the terms of the Shy Agreement.
Since its initial intervention in the litigat ion, the SBC has consistently raised the overarching claim “that Navistar ha s allocated revenues, costs and pr ofits within the consolidated group for the explicit purposes of robbing the Supplement Program of the profit-sharing payments to which it is entitled.” (R. 395-1, Motion to Enforce, PGID 117.)

II.
I cannot agree with the majority that the pr esent dispute falls within the scope of the arbitration clause set out at § 8.4 of the PSP. The majority places significant weight on theNo. 14-3251 Shy, et al. v. Navistar Int’l Corp., et al. Page 18

federal presumption in favor of arbitration, but that presumption cannot be used as a means of rewriting the clause to encompass a dispute, like the pr esent one, that goes beyond simply contesting the content of Navistar’s disclosures. “The duty to arbi trate a dispute derives from the parties’ agreement and a party cannot be required to submit to arbitrati on any dispute that the party has not agreed to so submit.” Bratt Enterprises, Inc. v. Noble Int’l Ltd. , 338 F.3d 609, 612 (6th Cir. 2003); see also Granite Rock Co. v. Int'l Bhd. of Teamsters , 561 U.S. 287, 302 (2010) (“[W]e have never held that [the federal policy favor ing arbitration] override s the principle that a court may submit to arbitration ‘onl y those disputes . . . that the pa rties have agreed to submit.’”) (quoting First Options of Chicago, Inc. v. Kaplan , 514 U.S. 938, 943 (1995)).

The arbitration clause at issue in this case covers disputes about “the information or calculations” provided to the SBC by Navistar pursua nt to three enumerated sections of the PSP. Thus, the clause has a narrow scope which is defi ned in reference to the reporting requirements. Moreover, the recourse provided by § 8.4 must be understood in context of the larger Shy Agreement and consent decree, which included in § 15.4 a provision in whic h the district court retained jurisdiction to “resolve any disputes relating to or arisi ng out of or in connection with the enforcement, interpretation or implementati on” of the parties’ ag reement. (R. 399-2, Shy Agreement § 15.4, PGID 1455.)
The SBC’s allegations, as articulated in the initial motion to enforce and as detailed to a greater degree in the First Amended Complaint, st ate a claim that Navistar’s manipulation of its corporate and earnings structure constitutes an in tentional, material breach of the company’s obligation under the Shy Agreemen t to annually contribute a sh are of its profits to the Supplemental Plan. Under our prec edent, a consent decree is “str ictly construed to preserve the bargained for position of the parties.” Williams v. Vukovich , 720 F.2d 909, 920 (6th Cir. 1983);
see also 23 Williston on Contracts § 63.3 (4th ed.) (a ma terial breach exists where “the breach substantially defeats the contract’s purpose”). Here, it is undeniable that Navistar’s ongoing commitment to pay a portion of its profits to the Supplemental Plan was integral to the “bargained for position of the parties,” id. , representing a means of mitigating retirees’ losses if their “sacrifices allow[ed] Navist ar to return to prosperity,” Shy , 1993 WL 1318607 at *4. The SBC’s claim for enforcement of Navistar’s obligation to comply with its profit sharingNo. 14-3251 Shy, et al. v. Navistar Int’l Corp., et al. Page 19

agreement falls naturally within the scope of § 15.4 of the Shy Agreement as a dispute “relating to . . . the enforcement” of the partie s’ agreement. (R. 399-2 at PGID 1455.)
The majority acknowledges, as it must, th at the SBC’s allegations go beyond reporting requirements to Navistar’s substantive operati onal conduct insofar as the SBC asserts that Navistar created sham entities, manipulated lega l ownership of the newly formed entities with the intent of shielding them from profit-shar ing, and reallocated reve nue streams away from existing operations to those enti ties. Maj. Op. at 7-8. Yet the majority determines this dimension insignificant because th e operational questions “are still so closel y connected to the information Navistar provides to the SBC that theystill count as disputes over that information.”
Id

. at 8. This theory admits no limiting principle. If applied as a general rule, any form of misconduct or bad faith dealing, or any fundamental change in the nature of the relevant business or transaction, could be characte rized as an informational disput e merely because one party owes reporting duties to the other pa rty. If the parties to the Shy litigation meant to submit all their disputes about Navistar’s comp liance with the profit sharing obligation to arbitration, they undoubtedly would have stat ed so directly.
Simply stated, the gravamen of the SBC’s alle gations is that Navistar is engaging in a bad faith scheme to negate its substantive contractua l duty to contribute a portion of its profits to
fund the benefits of its retirees. No fair reading of a provision gov erning the resolution of disputes about the “informati on or calculations” disclosed by the company comes close to encompassing such a claim. Therefore, I would hold that § 8.4 cannot be applied to require the
SBC to submit its claim to arbitration.

III.
Even under the majority’s premise that th e dispute is arbitrab le, I would find that Navistar waived its right to require arbitration by its purposeful delay in ra ising the issue. Both prongs of our Court’s waiver inquiry—inconsistency with reli ance on arbitration and actual prejudice—are met in this case. See Hurley v. Deutsche Bank Trust Co. Americas , 610 F.3d 334, 338 (6th Cir. 2010).No. 14-3251 Shy, et al. v. Navistar Int’l Corp., et al. Page 20

This Court has explained that the first factor, inconsistency with reliance on an agreement to arbitrate, “typically involves a defendant’s failure to timely i nvoke arbitration after being sued or its interference with a plaintiff’s pr e-litigation efforts to arbitrate.” JPD, Inc. v. Chronimed Holdings, Inc. , 539 F.3d 388, 393 (6th Cir. 2008) (citing Highlands Wellmont Health Network, Inc. v. John Deere Health Plan, Inc. , 350 F.3d 568, 574 (6th Cir. 2003)). In Hurley , this Court found waiver where the defendants “consistently and actively litigated [the] action in court,” notonly responding to the plaintiff’s motions but also filing “multiple dispositive and nondispositive motions of their ow n, including motions to dismiss, motions for summary judgment, and a motion to change venue.” 610 F.3d at 339. We noted that “[b]y filing a motion to change venue, [d]efendants proactively se lected the forum in which they wished to defend against [p]laintiffs’ claims.” Id. at 339. We additionally observed that, as in other cases where waiver was found, the defendants “did not attempt to enforce their arbitration rights until after the
district court entered anunfavorable decision.” Id.
Navistar’s conduct is comparable. The SBC moved to intervene in the Shy litigation on March 23, 2012. Three days later, on March 26, the SBC filed its motion to enforce the settlement agreement. The supporting memorandu m clearly notified the c ourt and Navistar of the nature of the dispute. Namely, the SBC c ontended that Navistar wa s violating the PSP and the Shy Agreement by its failure to timely make its required disclosures, its refusal to respond to the SBC’s information requests, and, as the SBC asserted it had “reason to believe,” by “intentionally manipulating the place ment of revenues and costs in its various business units in a manner that, if true, is wholly inconsistent wi th the intent of the Settlement Agreement.” (R. 395-1, Motion to Enforce, PGID 1117.) The mo tion thus put Navistar squarely on notice of the nature of the dispute and provided the co mpany with a basis to seek arbitration.
Rather than rely on its right to arbitrate, Navistar deliberately avoi ded raising the issue. First, Navistar moved to defer any response to th e motion to enforce until after the district court
ruled on whether the SBC’s intervention was proper. Next, Navistar opposed the SBC’s intervention arguing, inter alia , that if the SBC had a cognizable legal claim “there is absolutely no reason why such a claim could not be asserted in a separate action.” (R. 404, Response, PGID 1734.) Navistar also allude d multiple times to the possibili ty of an “independent action”No. 14-3251 Shy, et al. v. Navistar Int’l Corp., et al. Page 21

in the section of its opposition memorandum arguing that the SBC had other “adequate means for asserting its rights.” ( Id. at 1735.) If Navistar intended to invoke its right to arbitrate, these assertions were disingenuous. Indeed, Navistar’s argument th at the SBC should initiate a separate court action cannot be di stinguished in substance from th e efforts of the defendants in Hurley to “proactively select[] the forum in which they wished to defend against [p]laintiffs’
claims.” 610 F.3d at 339.
Significantly, as the districtcourt found, Navistar’s failur e to raise arbitrability in opposing the motion to interv ene is comparable to Johnson Associates Corp. v. HL Operating Corp. , 680 F.3d 713 (6th Cir. 2012), where we found that the defe ndant’s failure to raise
arbitration as an affirmative defense showed an“intent to litigate rath er than arbitrate.” Id. at 718. We explained that “as a practical matter, an enforceable contract ual right to compel arbitration operates as a quasi -jurisdictional bar to a plaint iff’s claims, providing grounds for
dismissal of the suit.” Id. The quasi-jurisdictional nature of an enforceable arbitration clause is just as pertinent at the motion to intervene st age because, “as a practical matter,” if a party’s
claim must be arbitrated there is no basis for that party to intervene in the action. See id. The majority attempts to distinguish Johnson Associates by arguing that Navistar’s failure to raise arbitrability merely impl ied “a desire to raise a ll defenses, including arbitr ation, in the context of fresh litigation.” Maj. Op. at 12. This is not only unpe rsuasive—neither Navistar nor the majority can identify any sound le gal purpose for deferring its reque st for arbitration to “fresh litigation”—it is also inconsistent with the pract ical inquiry that governs the waiver analysis
under Johnson Associates

. See 680 F.3d at 718.
Contrary to the majo rity’s suggestion, Navistar’s dela ying tactics did not end once the district court approved the SBC’s interv ention on February 6, 2013. On March 11, 2013, Navistar filed its respons e to the SBC’s motion to enforce the settlement agreement and its first motion to dismiss. For the first time, both documents cited to the dispute resolution clause of the PSP; neither document, however, argued that § 8.4 was a binding arbitra tion clause, or even mentioned the word “arbitration.” It is impossi ble to understand how Navi star could have failed to request enforcement of the Federal Arbitration Act at this juncture if it truly intended to relyNo. 14-3251 Shy, et al. v. Navistar Int’l Corp., et al. Page 22

on its right to arbitrate. 1 Navistar’s failure to forthrightlypress the issue in these substantive filings clearly telegraphs an “intent to litigate rather than arbitrate.” Johnson Associates , 680 F.3d at 718.
Moreover, Navistar’s decision to oppose th e SBC’s motion to enforce and to file a motion to dismiss without clearly invoking its right to compel arbitration entailed further unwarranted delay and unnecessary litigati on comparable to the circumstances in Hurley , where the defendants responded to the plaintiff’s motions and filed “multiple dispositive and nondispositive motions” before requesting arbitration. See 610 F.3d at 338-39. Only after the district court granted in part the SBC’s motion to enforce and ordered Navistar to disclose the information requested, and after th e SBC used that information to file an amended complaint that detailed in over twenty pages th e various ruses used to shield profits from the SBC and the Supplemental Plan—only then did Navistar seek to compel arbitration. Under Sixth Circuit precedent, a party that persists in litigation until the tide begins to turn against it has waived its right to require arbitra tion under an otherwise vali d arbitration clause. Id. at 339.
Though our precedent compels a finding of waiv er based on Navistar’s litigation conduct alone, the company’s strategy of delay and avoidance is also apparent from its pre-litigation interference with the SBC’s attempts to arbitrat e. Navistar may have had a valid reason for declining arbitration in 2009 rega rding the Medicare Part D subsi dy, but the same cannot be said for its complete failure to respond to the May 2 010 letter, which raised a broader set of issues that previewed the full dispute now at issue. The majority char acterizes Navistar’s year long silence as “concerning” but ultimately acceptable as “typical posturing” under Highland Wellmont Health Network, Inc. v. John Deere Health Plan, Inc. , 350 F.3d 568, 574 (6th Cir. 2003). In Highland Wellmont , however, the parties “were in a discussion stage about their respective claims and their positi ons” and the defendant stated thatit would decline “‘at [that] point’” to engage in arbitration. Id. at 574 (editing in original). The majority opini on distorts the

1 The majority avoids addressing the misleading nature of Navistar’s argument, instead simply asserting that Navistar’s briefing was “suf ficient to invoke arbitration.” Maj. Op. at 12 , n.1. It appears that the briefing at this stage was not, however, sufficient to alert the SBC or the district court to the nature of Navistar’s request, since neither the SBC’s replies nor the district court addresse d Navistar’s argument regarding the alternative dispute resolution clause as an arbitration issu e governed by the Federal Arbitration Act. That the district court later, in hindsight, recognized the arbitration issue hidden in Navistar’s reference to § 8.4 does not take away from the fact that Navistar’s conduct was both misleading and inconsistent with any good faith intention to rely on its right to arbitrate.No. 14-3251 Shy, et al. v. Navistar Int’l Corp., et al. Page 23

rationale of Highland Wellmont by applying it in th ese circumstances. Rather than reasonably accounting for the nature of back-and-forth between potentially adverse part ies, as the Court did
in Highland Wellmont , the majority in the instant case condones obstruction and unjustifiable
avoidance. I would hold that total failure to respond to a tim ely noticed dispute constitutes interference with a plaintiff’ s efforts to arbitrate rising to the level of waiver. See JPD, Inc. v. Chronimed Holding, Inc. , 539 F.3d 388, 393 (6th Cir. 2008).
Finally, Navistar’s delay has caused the SBC “actual prejudice.” Hurley , 610 F.3d at 338. The majority incorrectly assert s that Navistar raised arbitra tion in “its second substantive submission in the litigation.” Maj. Op. at 12. In fact, Navistar waited until its fourth substantive submission to raise the issue, sitt ing quietly on its arbi tration rights while the parties litigated the SBC’s right to intervene, the SBC’s motion to en force the settlement agreement, and Navistar’s initial motion to dismiss. These litigation cost s, though not as extreme as some cases, are sufficient to qualify as actual prejudice under our precedent. Compare Johnson Associates Corp. , 680 F.3d at 720 (affirming district court’s finding of waiv er where “plaintiffs were prejudiced by unnecessary delay and expense because ‘the right to arbitrat e was not asserted for eight months, during which motions were filed, requests for discove ry materials were made and responses were prepared, and a judicial settlement conference was held.’”).

CONCLUSION

In sum, I would hold that the instant dispute is not within the scope of the arbitration clause, and that even if the dispute were arbitr able, Sixth Circuit precedent compels a conclusion that Navistar waived its right to demand arbitration. I th erefore respectfully dissent.