FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TIFFANY HILL, individually and on 

behalf of all others similarly situated, 

Plaintiff-Appellee,

 v. 

XEROX BUSINESS SERVICES, 

LLC; LIVEBRIDGE INC, an Oregon 

Corporation; AFFILIATED 

COMPUTER SERVICES INC, a 

Delaware Corporation; AFFILIATED 

COMPUTER SERVICES LLC, a 

Delaware Limited Liability Company, 

Defendants-Appellants.

No. 20-35838 

D.C. No. 2:12-cv00717-JCC 

OPINION

Appeal from the United States District Court

for the Western District of Washington

John C. Coughenour, District Judge, Presiding

Argued and Submitted August 12, 2021

Seattle, Washington

Filed February 3, 2023
2 TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC

Before: Carlos T. Bea, Daniel A. Bress, and Lawrence 

VanDyke, Circuit Judges. 

Opinion by Judge Bea; 

Dissent by Judge VanDyke 

SUMMARY*

Arbitration

The panel affirmed the district court’s order denying 

Xerox Business Services, LLC (“XBS”)’s motion to compel 

arbitration pursuant to a 2002 Dispute Resolution Plan 

(“2002 DRP”), arising from a putative class action brought 

by XBS call center agents alleging Washington state law 

employment compensation claims based on diversity 

jurisdiction.

Appellee Tiffany Hill worked at an XBS call center and 

was compensated according to a proprietary system of 

differential pay rates known as Achievement Based 

Compensation (“ABC”). Section 4 of the 2002 DRP 

required XBS and its agents to submit “all disputes” to 

binding arbitration for final and exclusive resolution. Hill 

never signed the 2002 DRP. XBS issued an updated DRP 

(“2012 DRP”). Following a long course of litigation, XBS 

filed a motion to compel individual arbitration by 2,927 class 

* This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC 3

members who had signed the 2002 DRP. The district court 

found that XBS had waived its right to compel arbitration.

The panel noted that following Morgan v. Sundance, 142 

S. Ct. 1708 (2022), this Circuit’s test for waiver of the right 

to compel arbitration consists of two elements: (1) 

knowledge of an existing right to compel arbitration; and (2) 

intentional acts inconsistent with that existing right. XBS 

challenged both prongs of the test.

XBS argued that until after class certification had been 

granted, and completion of the notice and opt-out period, 

there was no existing right to compel arbitration. XBS 

maintained that it lacked knowledge of an existing right to 

compel arbitration, and therefore it could not be charged 

with waiver of a non-existent right. The panel held that XBS 

was correct that the district court could not compel 

nonparties to the case to arbitrate until after a class had been 

certified and the notice and opt-out period were 

complete. However, XBS failed to appreciate that waiver 

was a unilateral concept. A finding of waiver by XBS 

looked only to the acts of XBS, and bound only 

XBS. Explicit relinquishment is not the only way to waive 

a right to arbitrate. The panel held that further undercutting 

XBS’s position was its own actions throughout the course of 

the litigation, in which XBS raised the 2012 DRP as to 

putative class members before the class had been certified 

and before it had the ability to move to enforce that 

agreement against them. The panel concluded that it was 

clear that XBS had knowledge of and knew how to assert its 

right to compel arbitration under the 2012 DRP well before 

class certification and notice was complete. XBS similarly 

possessed knowledge of the right to compel arbitration as 

against the signatories of the 2002 DRP sufficient to satisfy 

the first prong of the waiver test.
4 TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC

Concerning the second prong of the test for arbitration 

waiver – acts inconsistent with the right to arbitrate – the 

panel considered the totality of the parties’ actions. The 

panel held that here, there was little doubt that XBS acted 

inconsistently with its right to compel arbitration under the 

2002 DRP. First, XBS many times explicitly asserted as a 

ground for obligatory arbitration the 2012 DRP without 

asserting the same for the 2002 DRP. Second, XBS further 

sought to take advantage of litigation in federal court by 

requesting extensive discovery on unnamed parties to the 

case—discovery which necessarily included signatories to 

the 2002 DRP. That Hill may not have been directly 

prejudiced by XBS’s requests concerning 2002 DRP 

signatories was immaterial after Morgan. XBS’s discovery 

behavior further substantiates the inferences drawn from the 

record suggesting that XBS was more interested in resolving 

this litigation, which included the 2002 DRP signatories’ 

claims, in court rather than in arbitration. Third, XBS 

actively litigated this case through filing a motion for partial 

summary judgment on the issue whether unnamed class 

members subject to XBS’s ABC pay scheme were 

“piecemeal” workers under Washington’s Minimum Wage 

Act. The panel rejected XBS’s argument that the language 

in the class notice itself demonstrated that it had not acted 

inconsistently with respect to the 2002 

signatories. Considering the totality of the circumstances, 

the panel concluded that the district court properly found that 

XBS acted inconsistently with its right to compel arbitration 

under the 2002 DRP.

Finally, the panel rejected XBS’s contentions that it 

would have been futile for it to have filed a motion to compel 

arbitration sooner than it did, and that, accordingly, its 

otherwise clear waiver of the right to compel arbitration 
TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC 5

should be excused. First, XBS argued that it would have 

been futile to file a motion to compel arbitration until after 

class certification because only then would unnamed class 

members be brought into the case, and only then would the 

district court have jurisdiction over those individuals. The 

panel held that waiver did not require a court to have 

jurisdiction over the beneficiaries of the waiver, it did not 

even require a lawsuit to have been filed. Second, XBS 

argued that it would have been futile to compel arbitration 

under the 2002 DRP before the Supreme Court decided 

Lamps Plus v. Varela, 139 S. Ct. 1407 (2019), because 

before Lamps Plus, it would not have been guaranteed 

individual arbitration under the 2002 DRP. The panel held 

that regardless whether arbitration were to be conducted 

individually or as a class, XBS would have had a valid right 

to compel arbitration under the 2002 DRP. In addition, XBS 

could not rely on Lamps Plus as establishing any new law 

with respect to arbitration agreements that are silent 

regarding class arbitration because that issue was decided 

nearly a decade earlier by Stolt-Nielsen S.A. v. AnimalFeeds 

Int’l Corp., 559 U.S. 662 (2010). The panel concluded that 

it would not have been futile for XBS to assert the 2002 DRP 

throughout the course of the litigation below in the same 

manner as it did the 2012 DRP.

Judge VanDyke dissented. He wrote that under this 

court’s precedents, a defendant may waive a right to compel 

arbitration only by intentionally relinquishing it. That 

intention can be express or implied, but this court has refused 

to find implied waiver unless a defendant completes concrete 

acts inconsistent with the right to arbitrate. Here, XBS never 

took a single act inconsistent with its intent to arbitrate the 

claims of its call-center employees who had signed 

arbitration agreements, and this fact alone should end the 
6 TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC

analysis in this case. In addition, XBS advised named 

plaintiff Hill and the district court of its intent to compel 

arbitration against those employees should the putative class 

be defined to include them. During the extended litigation 

against Hill, XBS took no action that uniquely targeted class 

members and not Hill. Finally, XBS moved to compel 

arbitration against every class member with whom it had an 

arbitration agreement on literally the first day after it could 

do so.

Judge VanDyke wrote further that the majority avoids 

the outcome these facts require by transforming this court’s 

clear waiver rule into an opaque forfeiture rule. This break 

from precedent is premised on the majority’s 

misunderstanding of how much it may rely on its own 

preferences and instincts instead of on concrete acts to find 

waiver. None of the three purported “acts” of XBS the 

majority points to supports a conclusion of waiver because 

each “act” intentionally related to Hill, with whom XBS had 

no right to arbitrate. Further, the majority’s new forfeiture 

rule fails even on its own terms. XBS did nothing in this 

case to evince that it affirmatively intended to waive its right 

to arbitrate—it merely litigated against the named plaintiff 

Hill and opposed her attempts to certify a class. That should 

not be enough to intentionally waive a merits defense wholly 

inapplicable to the named plaintiff.
 TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC 7 

COUNSEL

Todd L. Nunn (argued), Daniel P. Hurley, Ryan D. 

Redekopp, and Patrick M. Madden, K&L Gates LLP, 

Seattle, Washington, for Defendants-Appellants. 

Daniel F. Johnson (argued), Breskin Johnson & Townsend 

PLLC, Seattle, Washington; Toby J. Marshall, Terrell 

Marshall Law Group PLLC, Seattle, Washington; for 

Plaintiff-Appellee.

OPINION

BEA, Circuit Judge: 

We are called on to decide whether the district court 

correctly determined that the actions of Appellant Xerox 

Business Services, LLC constituted a waiver of its right to 

compel arbitration as against unnamed parties to the class 

action below. The Supreme Court’s recent decision in 

Morgan v. Sundance, 142 S. Ct. 1708 (2022), has removed 

prejudice to the non-moving party as an element of waiver 

in the context of arbitration contracts. Accordingly, we take 

occasion to restate this Circuit’s rule of waiver of the right 

to arbitrate, which is nothing more than the general rule of 

waiver of a contractual right: a party waives its right to 

compel arbitration when (1) it has knowledge of the right, 

and (2) it acts inconsistently with that right. Moreover, the 

body of caselaw in this Circuit applying these two elements 

remains good law following Morgan, which by its own terms

decided only “a single issue” and held that federal courts 

cannot “condition a waiver of the right to arbitrate on a 
8 TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC

showing of prejudice.” Morgan, 142 S. Ct. at 1712–13. 

Thus, relying on established Ninth Circuit precedent, we 

affirm the district court’s order which denied Appellant’s 

motion to compel arbitration.

I. BACKGROUND

Appellant Xerox Business Services, LLC (“XBS”) 

operated call centers in Washington State and elsewhere that 

responded to customer calls on behalf of third-party clients

such as phone companies, airlines, and hotels.

1 XBS 

compensated its call center agents according to a proprietary 

system of differential pay rates known as Achievement 

Based Compensation (“ABC”). Under the ABC plan, XBS 

agents received different rates of pay for each task 

performed. “Productive” tasks (e.g., handling incoming 

calls for clients) were compensated at a variable per minute 

rate that trended higher or lower based on customer 

satisfaction and efficiency metrics. “Non-productive” tasks 

(e.g., waiting for calls) were not independently 

compensated. “Additional Pay” compensated employees at 

minimum wage for mandatory activities such as trainings 

and meetings. XBS totaled “productive” and “nonproductive” minutes at the end of the week to determine an 

employee’s “ABC Pay” and offered “Subsidy Pay” when 

necessary to ensure an employee’s overall hourly pay rate 

met or exceeded Washington’s minimum wage.2

1 Defendant Affiliated Computer Services, Inc. (“ACS”) became 

defendant Affiliated Computer Services, LLC, which became XBS. 

Defendant LiveBridge, Inc. was a wholly owned subsidiary of XBS. 

Collectively, we refer to all defendants as “XBS.”

2 To illustrate: In 2012, Washington’s minimum wage was $9.04 per 
TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC 9

Beginning in 2002, most, but not all, XBS call center 

agents signed the company’s Dispute Resolution Plan 

(“2002 DRP”). Section 4 of the 2002 DRP required XBS 

and its agents to submit “All Disputes” to binding arbitration 

for final and exclusive resolution.3 “Disputes” included “all 

legal and equitable claims, demands, and controversies, of 

whatever nature or kind, whether in contract, tort, under 

statute or regulation, or some other law.”

A. Initiation of the Suit

Appellee Tiffany Hill worked at an XBS call center 

under an ABC compensation plan from September 2011 

until April 2012. All agree that Hill never signed the 2002 

DRP and never agreed to submit disputes with XBS to 

arbitration or to waive her right to bring claims against XBS 

in court.

On April 24, 2012, Hill brought Washington state law

employment compensation claims against XBS based on 

diversity jurisdiction in the U.S. District Court for the 

Western District of Washington on behalf of herself and a 

putative class of current and former call center agents 

hour. Under the ABC plan for that year, agents earned $9.04 per hour in 

“Additional Pay” for trainings, meetings, and breaks and $0.15 to $0.25 

per minute in “ABC Pay” (“productive” work less “non-productive” 

work). That means an agent who attended one half-hour meeting ($9.04 

per hour), took a half-hour lunch ($9.04 per hour), managed calls at an 

average quality for six hours ($0.20 per minute / $12.00 per hour), and 

was non-productive for one hour ($0.00 per hour) would earn an average 

wage of $10.13 per hour and receive no “Subsidy Pay.”

3 Section 4 of the 2002 DRP provides:

All Disputes not otherwise settled by the Parties shall 

be finally and conclusively resolved under this Plan 

and the Rules, by binding arbitration.
10 TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC

compensated under the ABC plan. Hill made minor changes 

in a first amended complaint filed several weeks later. On 

June 1, 2012, in its answer to the first amended complaint, 

XBS denied the allegations of the amended complaint and 

asserted several affirmative defenses against all of Hill’s 

claims, one of which is relevant here: “Failure to exhaust 

administrative and contractual remedies.”

In September 2012, and perhaps independent of this 

litigation, XBS issued an updated DRP (“2012 DRP”). The 

2012 DRP provides that “each Dispute . . . shall be arbitrated 

on an individual basis” and barred the initiation of or 

participation in “a class, collective, consolidated or

representative Dispute.”4

On January 22, 2013, Hill filed her operative second 

amended complaint. Hill asserted six claims against XBS 

for allegedly violating Washington’s state law wage, 

4 Section 4(c)(i) of the 2012 DRP provides in full:

To the extent allowed under the law, each Dispute not 

otherwise resolved by the Parties shall be arbitrated on 

an individual basis. Except for Disputes asserted by 

named plaintiffs or putative plaintiffs in a class, 

collective, consolidated or representative action 

pending in court before the Effective Date, neither an 

Employee nor the Company may initiate or participate 

in a Dispute on a class, collective, or consolidated 

basis, or in a representative capacity on behalf of other 

persons or entities that are claimed to be similarly 

situated. An Applicant may not participate in a class, 

collective, consolidated or representative Dispute that 

has been filed against the Company before the 

Applicant’s first day of employment. The arbitrator 

shall have no authority to arbitrate a Dispute as a 

consolidated class, collective or representative action.
TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC 11

overtime, and consumer protection provisions by 

underpaying agents for ordinary work and refusing to 

compensate agents for “off the clock” work completed prior 

to scheduled shifts. Hill proposed a class of all current and 

former XBS agents who worked at XBS call centers in 

Washington “between June 5, 2010 and the date of final 

disposition of this action.” To remedy the alleged violations 

on behalf of herself and the putative class, Hill sought a 

declaratory judgment, compensatory and exemplary 

damages, and attorneys’ fees and costs.

On February 6, 2013, in its answer to the second 

amended complaint, XBS denied its allegations and renewed 

its contractual affirmative defenses, now specifically 

identifying the 2012 DRP, which unlike the 2002 DRP 

expressly barred class-wide litigation of any claims: “Failure 

to exhaust administrative and contractual remedies. More 

specifically, some members of the alleged Putative Class are 

subject to individual arbitration agreements that require 

arbitration of their claims and expressly prohibit their 

participation in class action litigation.” XBS did not 

explicitly assert any similar matter, or indeed mention, the 

2002 DRP in its answer.

On June 17, 2013, XBS responded to Hill’s discovery 

requests and produced both the 2002 DRP and the 2012 

DRP. Approximately one month later, XBS sent discovery 

requests to Hill’s counsel, which included requests for 

production of documentation related to the putative class 

members referenced in Hill’s complaint as well as any other 

information that Hill had regarding the claims of those class 

members. Notably, XBS again mentioned only the 2012 

DRP—it defined the putative class as the individuals that 

Hill purported to represent except for the 2012 DRP 

signatories, which XBS noted were “bar[red from] . . . 
12 TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC

participati[ng] in th[e] litigation” by the arbitration 

agreement. Despite having produced the 2002 DRP several 

weeks earlier pursuant to plaintiff’s discovery request, XBS 

failed to suggest a similar defense or even to mention that 

agreement in these requests.

On October 16, 2013, Hill filed a motion for class 

certification under Federal Rule of Civil Procedure 23(a) and 

(b)(3). On November 18, 2013, XBS opposed certification 

on various grounds, which included arguing that Hill’s 

claims were not typical of the class claims because Hill 

“d[id] not face defenses that other agents face” and that 

“agents hired after September 27, 2012, are subject to 

binding individual arbitration.”5 Unlike its citation of the 

2012 arbitration agreement, XBS made no explicit mention 

of the 2002 DRP and continued to treat those who had signed 

the 2002 agreement as a part of the putative class XBS 

opposed. XBS argued that the claims of the putative class, 

including those of the 2002 DRP signatories, were not fit for 

class-wide resolution only because there were factual issues 

in calculating individual damages that would predominate 

over any common questions of fact or law. In fact, XBS 

spent a significant portion of its briefing in opposition to 

class certification attacking the merits of the class’s claims 

by contending that under its interpretation of Washington’s

Minimum Wage Act (“MWA”), Hill and all other class 

members that she purported to represent, including the 2002 

DRP signatories, lacked a meritorious cause of action in the 

first place. XBS’s opposition included a notation that XBS 

5 In her reply brief in support of her motion for class certification, filed 

on December 16, 2013, Hill conceded that “agents who started after 

September 27, 2012 and signed an individual arbitration agreement are 

excluded from the class.” (emphasis in original).
TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC 13

intended to file a summary judgment motion on this 

interpretive theory that no class member had a meritorious

cause of action shortly thereafter.

As previewed in its opposition to class certification, on 

November 27, 2013, XBS did file a motion for partial 

summary judgment on the merits of Hill’s claims, in which 

it argued that Hill, and the putative class members, had 

received all the compensation to which she, and they, were

entitled under the MWA as a “piecemeal” worker. 

Importantly, XBS noted that it was moving for summary 

judgment primarily because it wanted to resolve the central 

legal questions raised by the claims that Hill asserted for 

herself and on behalf of the putative class members, which 

included the 2002 DRP signatories, because “early summary 

judgment [could] obviate the need for certification.” And

XBS made clear in its briefing that it understood that its 

motion was aimed at obtaining a judicial resolution of the 

legal merits underlying all class members’ claims beyond

those that were personal to Hill, which claims included those

of the putative class members who were signatories of the 

2002 DRP. For example, XBS expressly stated that certain 

legal arguments that it contended were meritless were raised 

by “[c]lass counsel” and were “not advanced by Hill” 

because they did not apply to her claims specifically. 

Furthermore, in its summary judgment briefing, XBS made 

frequent reference to the arguments that “class counsel” had 

raised in support of the certification motion, which 

certification arguments XBS sought to rebut by contending 

that neither Hill nor the putative class members were injured 

because XBS believed that they were properly compensated 
14 TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC

for their work.

6

On July 10, 2014, the district court denied XBS’s motion 

for partial summary judgment and granted Hill’s motion to 

certify a class of current and former XBS call center agents 

compensated under the ABC plan (“the ABC Class”) 

pursuant to Rule 23(b)(3). The district court accepted Hill’s 

concession that agents who signed the 2012 DRP “will be 

prevented from participating in this class action” but rejected 

XBS’s argument “that this [wa]s a significant enough 

number of agents to preclude certification on the basis that 

Ms. Hill is atypical.” The district court found common 

issues predominated over individual ones because each class 

member’s claim turned on whether the ABC plan violated 

the MWA.

7 However, the court refused to provide a fulsome 

6

 Moreover, even Hill and her counsel understood XBS’s arguments to 

apply more broadly than Hill’s personal claims of underpayment because 

Hill’s response in opposition to the summary judgment motion framed 

XBS’s arguments as follows:

Defendants contend that they have no obligation to 

pay Ms. Hill and other call center agentsthe minimum 

wage for each hour worked because the agents are 

‘pieceworkers.’ There is no genuine dispute that 

Xerox pays its Washington employees by the hour and 

by the minute, not by the ‘piece’ or unit of work. Thus, 

Defendants’ Federal Way call center agents, including 

Ms. Hill, are hourly workers. (emphasis added).

And, in its reply brief in support of its summary judgment motion, XBS 

embraced this focus on the claims of underpayment made by all putative

class members, including the 2002 DRP signatories, by consistently 

referring to the payment that all call center “agents” received.

7 The district court denied class certification as to Hill’s “off the clock” 
TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC 15

definition of the scope of the ABC Class until the parties 

submitted additional briefing on the effective date of the 

related Sump class arbitration settlement, which covered 

similar state law claims brought by a similar class of XBS 

call center agents.8

On July 24, 2014, following the district court’s ruling 

provisionally certifying the class, XBS filed a Motion for 

and consumer protection claims after concluding that common issues did 

not predominate over individual factual questions. In contrast to the 

ABC plan, XBS lacked a centralized corporate policy regarding pre-shift 

expectations and the contents of call center job advertisements.

8 The Sump class arbitration settlement relates to a proposed class action 

filed on July 17, 2008, against Affiliated Computer Services, a 

Defendant in this matter. Sump v. Affiliated Computer Servs., No. 08-2-

21283-1 (King Cnty. Sup. Ct.); Case No. 2-08-cv-1082 (W.D. Wash.); 

Case No. 116007354 (JAMS). Notably, all plaintiffs in Sump were 

compelled to arbitrate under the 2002 DRP. See Sump v. Affiliated 

Computer Servs., No. 08-2-21283-1 (King Cnty. Sup. Ct.), Order 

Grant’g Mot. Compel Arbit. & Dismiss Without Prejud., Dkt. No. 17A 

(filed Sept. 11, 2008) (“The parties are hereby ORDERED to submit all 

claims alleged in this action to arbitration in accordance with the terms 

of [the 2002 DRP] each plaintiff entered with Defendants and as 

Plaintiffs have agreed to do [in their Response to Defendants’ Motion to 

Compel Arbitration and Dismiss found at Dkt. No. 17].”); see also id., 

Pls.’ Resp. Defs.’ Mot. Compel Arbit. & Dismiss, Dkt. No. 17 (filed 

Sept. 8, 2008) (“Plaintiffs each agreed to submit any claims concerning 

their employment to binding arbitration, pursuant to a very detailed 

‘Dispute Resolution Plan’ [] promulgated in 2002. . . . [H]aving reviewed 

the documents[,] . . . Plaintiffs have agreed to submit their claims to 

arbitration pursuant to the Defendants’ plan.”). Notably, the 

commencement of the Sump action occurred well before Hill filed her 

complaint in this case, and XBS availed itself of its right to compel 

arbitration under the 2002 DRP in Sump before it filed its answers in this 

case. Of note, named plaintiff Mary Sump (of Sump) had signed the 

2002 DRP, in contrast to named plaintiff Tiffany Hill here, who signed 

no arbitration agreement whatsoever.
16 TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC

Reconsideration which, in relevant part, asked for the court 

to reconsider its denial of XBS’s summary judgment motion 

and its rulings about predominance. XBS argued that 

reconsideration was proper because the district court’s 

denial of its summary judgment motion was manifestly

erroneous in failing to adopt XBS’s characterization of the 

ABC Plan as a piecemeal payment plan and by failing to 

credit its interpretation of the MWA, which XBS believed 

would permit the “agents” to receive “a windfall” in 

compensation. In addition, XBS moved to have the district 

court reconsider its grant of Hill’s motion for class 

certification by again contending that the factual issues of 

calculating damages for the provisional class members, 

which at the time covered the 2002 DRP signatories, 

trumped the benefit of class-wide resolution. As was the 

common theme during its early motions practice before the 

district court, at no point in its briefing did XBS identify the 

fact that many of the members of the provisionally certified 

class were subject to the 2002 DRP and could not be parties 

to the class action as a result. This particular omission is 

especially notable because it occurred immediately 

following the district court’s certification decision, which 

decision evinced the district court’s willingness to protect 

XBS’s arbitration rights by actively excluding the 2012 DRP 

signatories from the provisionally certified class. Thus, 

despite the fact that XBS had a clear opportunity to raise the 

2002 DRP signatories and to challenge their inclusion in the 

class definition, XBS instead opted to request that the district 

court reconsider its substantive ruling on XBS’s summary 

judgment motion regarding the legal merits of the class 

members’ claims of underpayment, which claims included 

those of the 2002 DRP signatories. As XBS made this

substantive argument as a direct response to the district 
TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC 17

court’s provisional certification of a class of XBS 

employees, XBS evinced a strong desire to obtain a judicial 

resolution of the merits of its challenge that would apply not 

only to Hill but also to all provisional class members, which 

still included the 2002 DRP signatories.

In the same filing, on July 24, 2014, XBS moved in the

alternative to have the district court amend its order to certify 

the summary judgment ruling for interlocutory appeal. XBS

sought to pursue a judicial resolution of what it termed the

“threshold issue” of whether or not the ABC Plan, which 

covered the entire provisional class including the 2002 DRP 

signatories, was a piece rate rather than an hourly 

compensation system, which would have effectively 

rendered meritless the class claims about underpayment, 

including those of the 2002 DRP signatories. As XBS

explained, this interlocutory appeal was necessary because

if the court’s “denial of summary judgment [were] reversed, 

the threshold legal issue in the case [would] be[] resolved, 

[which would] spar[e] the parties the expensive process of 

addressing class certification issues, possibly serving notice 

on class members, engaging in additional discovery, and 

trying the case.”

On September 18, 2014, the court denied XBS’s motion 

for reconsideration and noted that it was not going to 

reevaluate its “Rule 23(b)(3) [decision] because [XBS] 

point[ed] to no new arguments” as to why class certification 

was improper—arguments which could have included 

XBS’s arbitration rights under the 2002 DRP. Thus, the 

district court left its provisional class certification decision 

in place. But the district court did agree with XBS’s 

argument in the alternative and certified the portion of its

order denying XBS’s summary judgment motion for

interlocutory appeal under 28 U.S.C. § 1292(b), so that XBS 
18 TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC

could pursue its legal theory that the call center agents were 

paid according to a piecework rather than hourly plan under 

the MWA. Subsequently, the district court entered a stay 

pending resolution of the interlocutory appeal.9

This Court began those proceedings on December 3, 

2014, and ultimately certified the question to the 

Washington Supreme Court; adopted that court’s decision 

that call center agents are hourly workers protected under the 

MWA; and affirmed the district court’s denial of summary 

judgment. Hill v. Xerox Bus. Servs., LLC, 868 F.3d 758, 763 

(9th Cir. 2017) (“Hill I”) (certifying question); 426 P.3d 703, 

708–09 (Wash. 2018) (answering certified question); 771 F. 

App’x 771, 772 (9th Cir. 2019) (“Hill II”) (affirming and 

remanding) (mem).

10 On July 3, 2019, the final mandate 

9 Notably, in support of its motion to stay pending appeal, XBS 

reiterated its position that the interlocutory appeal would obviate much 

of the class related work because it would result in a judicial resolution 

of the merits of a “threshold legal issue” that affected all class members, 

including the 2002 DRP signatories.

10 Although the Washington Supreme Court held that the ABC Plan was 

not a piecework plan, which under the certification order required this 

Court to affirm the district court’s summary judgment decision, XBS 

submitted a letter brief to this Court arguing that there was still an open 

question about the proper classification of its ABC plan system. Hill v. 

Xerox Bus. Servs., LLC, No. 14-36029 (9th Cir.), Letter Br., Dkt. No. 61

(filed Dec. 28, 2018). Thus, even after XBS lost in the Washington 

Supreme Court, its letter brief evinced a continued desire for a judicial 

resolution of the merits of this question, which resolution would govern 

the claims of everyone in the provisionally certified class, including the 

2002 DRP signatories. And XBS knew that it was seeking a judicial 

resolution of the merits of these claims because it requested that this 

Court “hold [that] the ABC plan is not an hourly plan,” which XBS 

argued would require “vacat[ing] the district court’s order denying 

partial summary judgment” because that holding meant the ABC plan’s 
TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC 19

from this Court issued with respect to those matters, and on 

July 16, 2019, the district court lifted the stay and instructed 

the parties to file a joint status report. From the moment that 

the provisional class was certified on July 10, 2014, until the 

stay was lifted on July 16, 2019, over five years had elapsed,

during which time XBS pursued a judicial resolution of the 

merits of the central legal issue that undergirded the claims 

of Hill and all the putative class members, including the 

2002 DRP signatories.

11

B. Notice to Arbitrate Under the 2002 DRP

After the stay was lifted, Hill filed a Motion to Define 

Scope on July 18, 2019, which requested that the district 

court define the scope of the certified ABC Class to include 

signatories to the 2012 DRP, notwithstanding her previous 

concession that such signatories be excluded from the class. 

On July 26, 2019, the parties filed a Joint Status Report in 

“other-than-hourly pay [structure] complied with Washington law.” Id.

at 7.

11 While the dissent briefly acknowledges this six-year detour that XBS 

made focused on its legal interpretation of the MWA to defeat the claims 

of all members of the class, including the signatories of the 2002 DRP, 

it attempts to downplay its relevance. Dissent at 58–59, 76–77. Contrary 

to the dissent’s characterization, XBS’s multi-year focus on the merits of 

the claims that it actively understood to apply to Hill’s claims as well as 

the claims of the 2002 DRP signatories creates a strong inference that 

XBS wanted a judicial resolution on the merits and chose to use the 

arbitration forum instead as a backup in the event that its summary 

judgment expedition failed. Under caselaw, we will not reward XBS’s 

attempt to take a second bite from the apple in this manner. In Re Mirant 

Corp. v. Castex Energy, Inc., 613 F.3d 584, 590 (5th Cir. 2010) 

(explaining that the waiver rule is in place to prevent litigants from 

“delay[ing] moving to compel arbitration until they could ascertain how 

the case was going in federal district court.” (internal quotations 

omitted)).
20 TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC

which XBS stated its position that “the 2012 and 2002 DRP 

need to be specifically addressed prior to finalizing the 

class” and that “these issues should be briefed and 

considered on class certification. If individuals subject to 

arbitration agreements are included in the class, Defendants 

anticipate bringing motions to compel individual arbitration 

once the class is finalized.” Notably, over six years after 

XBS had last referenced the 2002 DRP on June 17, 2013, 

when it produced the agreement in response to Hill’s 

discovery request, XBS’s statement in the Joint Status 

Report was the first time in this case that XBS had explicitly

expressed its intent to compel arbitration under the 2002 

DRP in this action—let alone even mention the 2002 DRP—

notwithstanding its actions in the earlier Sump action.

12

On August 5, 2019, in its Response to Hill’s Motion to 

Define Scope, XBS urged the district court to “find that 

individual arbitration agreements preclude class certification 

altogether.” XBS again argued that arbitration agreements 

under both the 2002 and the 2012 DRP barred the 

participation of many putative class members:

A vast number of putative class members are 

parties to arbitration agreements with 

12 The dissent contends that the record reveals over a dozen times that 

XBS has referenced the 2002 DRP during the course of the litigation. 

Dissent at 74. The dissent omits the fact that all but two of the record 

cites occurred in 2019 after XBS’s six-year gamble with its summary 

judgment merits appeal failed to produce fruit. Furthermore, its two 

other mentions of the 2002 DRP involved (1) XBS’s answer to Hill’s 

first, and now inoperative, complaint, which was filed before the 2012 

DRP was even drafted, and (2) XBS’s production of the 2002 DRP in 

2013, which simply lends credence to the fact that XBS knew of its 

arbitration right.
TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC 21

Defendants (ACS, XBS, or their successors), 

either the version from 2012 (with a class 

action waiver) or the one from 2002 (which 

was silent as to class actions). The 2002 DRP 

is enforceable for class members once the 

class is certified based on Lamps Plus, Inc. v. 

Varela, 129 S. Ct. 1407 (2019).

On August 13, 2019, the district court issued an order 

defining the scope of the ABC Class. Specifically, the 

district court defined the ABC class as follows:

All persons who have worked at Defendants’ 

Washington call centers under an “Activity 

Based Compensation” or “ABC” plan that 

paid “per minute” rates for certain work 

activities between June 5, 2010, and the date 

of final disposition of this action. 

However, excluded from this class were the signatories to 

the 2012 DRP: 

In addition, the following exclusion will 

apply to the ABC class: “Any employees who 

were hired after September 27, 2012 and who 

signed arbitration agreements as part of 

Defendants’ revised 2012 Dispute Resolution 

Program.” 

Notably, the court did not address XBS’s arguments 
22 TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC

about the 2002 DRP.13

Thereafter, and in light of the district court’s class 

certification order, Hill and XBS worked together to develop 

a final list of 5,772 class members for the purposes of notice 

under Rule 23(c)(2)(B). XBS acknowledged that its 

preparation of this list involved frequent conferrals with 

Hill’s counsel as well as some discovery on the class 

members, including the 2002 DRP. During this process, on 

September 20, 2019, XBS explained to Hill that it had

included individuals in the class list whose 

claims (we believe) are barred because ... 

they signed earlier arbitration agreements 

that (under the Supreme Court’s Lamps Plus

decision) require individual arbitration. 

Although we believe it would be more 

efficient to remove those individuals before 

notice is sent, we left them in the preliminary 

class list at this time.

And on November 13, 2019, while explaining to the 

district court how the class list was populated, XBS 

13 Despite explaining in its response to Hill’s 2019 motion to define the 

scope of the class that it believed that class certification could be defeated 

by both the 2012 DRP and the 2002 DRP, and despite having represented 

in the Joint Status Report that it planned on “filing its own motion 

regarding class certification issues,” which necessarily implicated its 

argument that “[a] certified class cannot include class members who 

entered into arbitration agreements,” XBS never filed such a motion nor 

did it move the district court to amend its certification order to remove 

the 2002 DRP signatories from the certified class, despite the court’s 

evincing its willingness to exclude individuals subject to arbitration 

agreements by excluding the 2012 DRP signatories.
TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC 23

reiterated its position that although the signatories under the 

2002 DRP were included in the class list, XBS anticipated 

moving to compel arbitration against them after the notice 

and opt out time window had run.

Hill’s counsel moved forward with a joint motion to 

distribute notice and set an opt out schedule, which the 

district court approved on December 17, 2019. As is 

relevant here, the class notice explained that class members’ 

rights would be adjudicated unless they opted out and further 

stated that employees who had signed the 2012 DRP were 

excluded from the class. The class notice also noted that 

XBS had raised defenses to the claims asserted, including 

“that other Class Members are required to pursue their 

claims through individual arbitration.” The notice 

administrator reported on March 4, 2020, that the class had 

only one opt out and officially contained 5,771 members.

In the intervening time between the district court’s 

certification order and the finalization of the class, XBS 

continued to engage in standard litigation practice. It 

participated in a status conference with Hill’s counsel and 

the district court judge, in which it failed to mention the 2002 

DRP (a fact XBS does not dispute). And it stipulated to a 

proposed case schedule organizing proceedings regarding 

discovery, summary judgment, and trial without reference to 

the arbitration agreements or a future motion to compel 

arbitration against the absent class members. XBS and Hill 

engaged in discovery during which time the parties’ 

damages experts submitted reports and discussed the proper 

method for calculating overtime pay.14

14 The dissent picks up on XBS’s counsel declaration that claims that 
24 TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC

The day after the notice administrator gave his report on 

the final class size, on March 5, 2020, XBS filed a motion to 

compel individual arbitration by 2,927 class members who 

had signed the 2002 DRP. XBS argued that it was able to 

identify individual class members and their associated DRP 

records only after the finalization of the class definition in 

August 2019. XBS further argued that it had lacked the 

ability to compel arbitration by these class members until the 

notice administrator’s report confirmed the finality of the 

class. Hill conceded that the 2,927 class members in 

question signed the 2002 DRP and that the 2002 DRP is 

enforceable if not waived. However, Hill argued that XBS 

had waived its right to arbitrate by moving to compel 

arbitration too late in the litigation. The district court agreed 

and found that XBS had waived its right to compel 

arbitration. XBS timely appealed.

any discovery regarding the 2002 DRP signatories was quite limited. 

Dissent at 68. This contrasts with Hill’s representation that discovery 

was “extensive.” While the extent of the actual discovery that occurred

post-certification is unclear, the conception that the discovery that did 

occur between the class certification and filing of XBS’s motion to 

compel was quite limited—which is the impression left by the 

declaration of XBS’s counsel—is belied by the record itself. The emails 

and excel workbooks discussed in Hill’s damages expert’s report 

regarding the purported underpayment of class members’ wages 

suggests that XBS was actively involved in discovery during this time 

frame. Itshared payroll data with Hill via several large excel workbooks, 

explained the workbooks in an email thread dated January 10, 2020, and 

engaged a rebuttal expert of its own to publish a report on February 24, 

2020, which challenged Hill’s expert’s calculations. These exchanges 

and the reports themselves evince XBS’s engagement in discovery as to

the class members, including the 2002 DRP signatories, during the notice 

and opt-out period on the merits of their claims to underpayment that is 

more involved than XBS’s or the dissent’s characterization makes out.
TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC 25

II. STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291 as “a 

district court’s denial of a motion to compel arbitration is a 

final order appealable under the Federal Arbitration Act, 9 

U.S.C. § 16(a)(1)(B). We review de novo the district court’s 

denial of a motion to compel arbitration, including its 

determination that a party has waived the right to arbitrate.” 

Newirth by & through Newirth v. Aegis Senior Communities, 

LLC, 931 F.3d 935, 939 (9th Cir. 2019) (cleaned up).

III. ANALYSIS

Previously, this Circuit’s arbitration waiver test was 

grounded in Fisher v. A.G. Becker Paribas Inc., 791 F.2d 

691 (9th Cir. 1986), which required the following: “(1) 

knowledge of an existing right to compel arbitration; (2) 

intentional acts inconsistent with that existing right; and (3) 

prejudice to the person opposing arbitration from such 

inconsistent acts.” Newirth, 931 F.3d at 940 (citing Fisher, 

791 F.2d at 694). As noted above, however, Morgan has 

eliminated the prejudice requirement as an element from any 

arbitration waiver test. Now, the test for waiver of the right 

to compel arbitration consists of two elements: (1) 

knowledge of an existing right to compel arbitration; and (2) 

intentional acts inconsistent with that existing right. XBS 

challenges both prongs of the above test by asserting that it 

neither had knowledge of an existing right to compel 

arbitration under the 2002 DRP, nor performed any acts 

inconsistent with its right to compel arbitration under the 

2002 DRP.

A. Knowledge of an existing right to compel arbitration

Here, XBS argues that until after class certification had 

been granted, followed by the completion of the notice and 
26 TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC

opt-out period, “there was no existing right to compel 

arbitration because XBS could not move to compel 

arbitration against either Hill or putative class members.” 

Accordingly, XBS maintains that it lacked knowledge of an 

existing right to compel arbitration and, therefore, that it 

cannot be charged with waiver of a non-existent right.

In one rather limited sense, XBS is correct—the district 

court could not compel nonparties to the case to arbitrate

until after a class had been certified and the notice and optout period were complete. In re JPMorgan Chase & Co., 

916 F.3d 494, 503 n.19 (5th Cir. 2019) (observing that 

“courts cannot compel individuals to arbitrate when they are 

yet to be identified and have not joined the suit.”); see also

Gutierrez v. Wells Fargo Bank NA, 889 F.3d 1230, 1238 

(11th Cir. 2018). However, what XBS fails to appreciate is 

that waiver is a unilateral concept. A finding of waiver by

XBS looks only to the acts of XBS, binds only XBS, does 

not reach out to affect the rights of as then-unnamed class 

members, and does not depend upon when the law requires 

or authorizes such a right to be asserted. As noted by the 

Supreme Court in Morgan, “[t]o decide whether a waiver has 

occurred, the court focuses on the actions of the person who 

held the right; the court seldom considers the effects of those 

actions on the opposing party.” 142 S. Ct. at 1713; see also 

Royal Air Props., Inc. v. Smith, 333 F.2d 568, 571 (9th Cir. 

1964) (“But no detriment to a third party is required for 

waiver, it is unilaterally accomplished.”). 

Moreover, we have never suggested that for waiver 

purposes, knowledge of an existing right to arbitrate requires 

a present ability to move to enforce an arbitration agreement. 

Cf. In re Cox Enterps., Inc. Set-top Cable Television Box 

Antitrust Litig., 790 F.3d 1112, 1119 (10th Cir. 2015) 

(declining to adopt a rule that would deem the “right to 
TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC 27

arbitrate against [] class members” as known only after “the 

class was certified”).15 On this point, XBS conceded at oral 

15 While contending that it is not doing so, Dissent at 80–81, the dissent

disagrees with this principle and embraces XBS’s theory that a party 

needs to have present authority to vindicate that right for the party to be 

able to take actions inconsistent with an existing right. Dissent at 57–

58, 65–68, 66 n.1, 75. As the dissent frames it, our opinion errs because 

“[o]nly” a defendant who is actively litigating against class members

subject to arbitration that are joined to the lawsuit “can be said to have 

acted consistent with an intent to waive its right to arbitrate.” Dissent at 

64. But in making this assertion, the dissent fails to cite any authority or 

to provide any explanation for this rule that underpins its entire analysis. 

Nor could it.

To begin with, what the dissent suggests is plainly a forfeiture argument: 

a party cannot forfeit what is not available because it never would have 

had an opportunity to raise that right in the first instance—hence the 

forfeiture caselaw’s focus on whether an issue was “timely assert[ed].” 

Crowley v. Epicept Corp., 883 F.3d 739, 748 (9th Cir. 2018) (contrasting 

forfeiture with waiver and explaining that waiver is defined as a party’s 

“intentional[] relinquish[ment] or “abandon[ment],” which does not turn 

on the timing of when a right is asserted).

But furthermore, this erroneous conflation of waiver and forfeiture runs 

headlong into centuries of history and common law development 

regarding inchoate rights. Inchoate rights are those that a party holds but 

does not have the present power to vindicate. Inchoate rights are 

“incomplete” because further action is needed to crystalize them—or 

more technically, the additional action enables the rightsholder to perfect 

the right so that it vests in the owner in its full form. E.g., 2 William 

Blackstone, Commentaries *437 (In the case of the common law interest 

that a party who reported a statutory violation holds in the penalty 

exacted against the violator, “[h]e obtains an inchoate imperfect degree 

of property, by commencing his suit; but it is not consummated till 

judgment.” (cleaned up)). There are many historical examples of rights 

that the Supreme Court has protected in the rightsholder even though the 

interest obtained was inchoate. E.g., Hendrie v. Dayles, 98 U.S. (8 Otto) 

546 (1878) (enforcing the assignment of an inchoate right to obtain a 
28 TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC

argument that a class action defendant could waive the right 

to arbitrate against putative class members by affirmatively 

renouncing that right. This concession is fatal to XBS’s 

argument because we have never held that explicit

relinquishment is the only way to waive a right to arbitrate. 

Indeed, we have stated just the opposite. Newirth, 931 F.3d 

future patent); Dundas v. Hitchcock, 53 U.S. (12 How.) 256 (1851) 

(enforcing a widow’s relinquishment of her right to claim a dower from 

her husband’s estate when it was given as consideration for a mortgage 

during her husband’s lifetime, even though the right to a dower estate 

was inchoate until the husband’s death); Jones v. Shore’s Ex’r, 14 U.S. 

(1 Wheat.) 462 (1816) (protecting the inchoate rights of a collection 

officer in the goods seized during a forfeiture action even though the 

officer died prior to the condemnation judgment that consummated his 

ownership interest); The Mary and Susan, 14 U.S. (1 Wheat.) 46 (1816)

(protecting the inchoate right of a captor to a prize in a ship captured 

during war according to a duly passed statute against subsequent 

attempts by the executive branch to revoke that statutory power). And 

we recently concluded that a property owners’ inchoate rights in a right 

of way that had been abandoned by a railroad were not destroyed by the 

construction of a public highway. Avista Corp. Inc. v. Wolfe, 549 F.3d 

1239 (9th Cir. 2008). 

This unbroken line of cases protecting inchoate rights makes it clear that 

certain powers inhere in the party that holds such an imperfect right, even 

without the rightsholder’s present authority to vindicate it: he can assign 

it, disclaim it, or sell it, just to name a few. An easy example will help 

solidify this point that a right can exist without the contemporaneous 

power to enforce it. Take a party’s contractual right to liquidated 

damages in the event that his counterparty materially breaches the

contract. The right is inchoate because he cannot sue for liquidated 

damages before the contract is breached. But the fact that the right has 

not crystalized, does not prevent the rightsholder from being able to 

waive that right in anticipation of the counterparty’s breach—say, by 

notifying the counterparty that a particular breach will be excused before 

it occurs. Simply, nothing about the timing of when the right can be 

protected affects a party’s present ability to act inconsistently with it.
TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC 29

at 942 (explaining that a party can impliedly waive its rights 

through “actions [that] amount to a knowing relinquishment 

of th[ose] right[s]”); Van Ness Townhouses v. Mar Indus. 

Corp., 862 F.2d 754, 759 (9th Cir. 1988) (same).

Further undercutting XBS’s position is its own actions 

throughout the course of the litigation, in which XBS raised 

the 2012 DRP as to putative class members before the class 

had been certified and before it had the ability to move to 

enforce that agreement against them. First, XBS asserted the 

following as a defense in its answer to Hill’s first amended 

complaint: “Failure to exhaust administrative and 

contractual remedies.” XBS then expanded on this defense 

in its answer to Hill’s second amended complaint: “Failure 

to exhaust administrative and contractual remedies. More 

specifically, some members of the alleged Putative Class are 

subject to individual arbitration agreements that require 

arbitration of their claims and expressly prohibit their 

participation in class action litigation.” XBS acknowledges 

that the above defense from its answer to the first amended 

complaint applied to the 2002 DRP, as the 2012 DRP had 

not yet been created at the time of that answer. But XBS 

concedes that the “individual arbitration agreements” noted 

in its answer to the second amended complaint referred only 

to the 2012 DRP, as the 2002 DRP did not expressly prohibit 

resolution of disputes by class action litigation and because 

XBS represents that it referenced the 2002 DRP in only two 

instances prior to the parties’ briefing in 2019 regarding the 

scope of the class: its first answer and its production of the 

2002 DRP during discovery. Moreover, XBS repeatedly 

asserted its right to individual arbitration under the 2012 

DRP, which ultimately led the district court to exclude 

signatories of the 2012 DRP from the ABC Class.

As to the element of knowledge of a right, it is clear that 
30 TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC

XBS had knowledge of and knew how to assert its right to 

compel arbitration under the 2012 DRP well before class 

certification and notice was complete. XBS similarly

possessed knowledge of the right to compel arbitration as 

against the signatories of the 2002 DRP sufficient to satisfy 

the first prong of the waiver test. The district court was 

correct in so finding.

B. Acts inconsistent with the right to arbitrate

“There is no concrete test to determine whether a party 

has engaged in acts inconsistent with its right to arbitrate; 

rather, we consider the totality of the parties’ actions.” 

Newirth, 931 F.3d at 941 (quoting Martin v. Yasuda, 829 

F.3d 1118, 1125 (9th Cir. 2016)) (cleaned up).16 As we have 

previously observed:

We find this element satisfied when a party 

chooses to delay his right to compel 

arbitration by actively litigating his case to 

take advantage of being in federal court. See 

Van Ness Townhouses v. Mar Indus. Corp., 

16 In contrast to the dissent’s analysis, our evaluation of XBS’s actions 

during the course of the litigation is in line with the “holistic approach” 

our caselaw has demanded of us under this prong of the waiver analysis. 

Newirth, 931 F.3d at 941. If each act is reviewed in isolation, as the 

dissent suggests should be done—even though it denies doing so, Dissent 

at 76 n.9—then it is easy to construct reasons and justifications for why 

the individual actions highlighted do not evince the desire of a party to 

obtain judicial resolution of the issue at hand. But in contrast, evaluating 

the totality of a party’s actions guarantees that ambiguous actions are not 

explained away when they constitute one facet of a consistent and 

intentional practice of seeking judicial resolution of key merits issues 

that is inconsistent with that party’s right to have such claims resolved in 

an arbitration forum.
TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC 31

862 F.3d 754, 756, 759 (9th Cir. 1988) 

(finding waiver when party answered 

complaints, moved to dismiss the action, and 

did not claim a right to arbitration in any of 

the pleadings); Kelly v. Pub. Util. Dist. No. 2, 

552 Fed. Appx. 663, 664 (9th Cir. 2014) 

(finding this element satisfied when the 

parties “conducted discovery and litigated 

motions, including a preliminary injunction 

and a motion to dismiss”). A statement by a 

party that it has a right to arbitration in 

pleadings or motions is not enough to defeat 

a claim of waiver. See In Re Mirant Corp. v. 

Castex Energy, Inc., 613 F.3d 584, 591 (5th 

Cir. 2010) (“A party cannot keep its right to 

demand arbitration in reserve indefinitely 

while it pursues a decision on the merits 

before the district court.”); Hooper v. 

Advance Am., Cash Advance Ctrs. of 

Missouri, Inc., 589 F.3d 917, 923 (8th Cir. 

2009) (“A reservation of rights is not an 

assertion of rights.”).

Martin, 829 F.3d at 1125 (cleaned up). Our past case of Van 

Ness is instructive. There, we concluded that the defendant 

acted inconsistently with its right to compel arbitration 

“when it made an intentional decision to refrain from filing 

a motion to compel arbitration (because it did not want to 

sever the arbitrable claims from the nonarbitrable claims),” 

and kept the arbitrable claims in federal court for two years 

while seeking merits determinations, which “includ[ed] 

filing a motion to dismiss for failure to state a claim.” 

Newirth, 931 F.3d at 941.
32 TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC

Importantly, we have never held that a party can act 

inconsistent with its arbitration rights only if the relevant 

actions are themselves express denials of the right to 

arbitrate.17 Kelly, 552 F. App’x at 664. For example, in 

Newirth, the finding of acts that amounted to waiver 

included “filing a motion to dismiss [the plaintiff’s] 

arbitrable claims” on a key merits issue, the defendant’s 

“failure to renew it[s motion to compel arbitration] for a year 

while it sought a determination on the merits,”18 and its 

17 This contrasts with the implicit and erroneous assumption made in the 

dissent’s analysis—despite its protests to the contrary, Dissent at 80–

81—that only direct evidence of waiver through an express disdain of 

the right to arbitrate can constitute acts inconsistent with that right. 

Dissent at 75 (contending that the acts deemed inconsistent with a party’s 

arbitration rights must be explicitly “directed at the class” members who 

are bound by the arbitration agreement). As we explain, our caselaw is 

replete with examples of waivers that are evidenced by circumstantial 

evidence of inconsistency (i.e., the inconsistency is implicit). In fact, of 

the caselaw that the dissent cites, only one is an implied waiver case that 

involves a litigant that made an affirmative statement that expressed a 

preference for the federal courtroom. Dissent at 67–68 (quoting Martin, 

829 F.3d at 1122, 1126). But even Martin does not stand for the principle 

that there must be an express disavowal of one’s arbitration right to find 

an implied waiver occurred. Our Court in Martin highlighted all of the 

acts that were implicitly inconsistent with the defendants’ arbitration 

right, such as filing a motion to dismiss, engaging in discovery, and 

drafting a joint stipulation to structure the litigation. 829 F.3d at 1126. 

The panel then mentioned the defendants’ counsel’s statement that his 

clients were “better off” in court as mere bolstering evidence that the 

defendants’ active litigation amounted to waiver. Id. Thus, Martin does 

not alter the general rule that XBS can waive its arbitration right under 

the 2002 DRP without having expressly rejected that right.

18 Newirth’s express reliance on the defendant’s failure to renew its 

motion to compel arbitration after having filed and withdrawn the motion 

earlier in the litigation undermines the dissent’s characterization of our 
TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC 33

failure to “avail itself of local rules that would have allowed 

it to seek relief from case management and discovery 

obligations.” Id. at 942–43. Similarly, in Van Ness, the 

court highlighted the party’s inconsistent behavior with 

respect to its arbitration right, which was revealed by its

“extended silence” and “much-delayed demand for 

arbitration,” both of which can hardly be described as 

explicit or active litigation choices revealing an express 

eschewal of the party’s arbitration right. 862 F.2d at 759. 

Van Ness instead explains that the inferences drawn from the 

party’s choice to rely on judicial proceedings, such as by 

filing “pleadings[ and] motions and approving a pre-trial 

conference order,” amount to a waiver, because one cannot 

claim to be interested in preserving his right to an arbitration 

opinion as purporting to “crowbar[]” our waiver analysis “into a yawning 

new forfeiture rule.” Dissent at 81. This is because this aspect of

Newirth implies that in certain scenarios, a defendant’s neglecting to 

make certain arguments when viewed against the backdrop of his other 

actions can actually serve as circumstantial evidence of an intentional 

relinquishment, even if the failure to act is normally associated with 

forfeiture. The key is understanding that when engaging in an implied 

waiver analysis, the omission is viewed through the lens of the 

defendant’s other actions rather than from the perspective of when the 

law demands that an argument be raised. This is because waiver turns 

on how the party itself acted with respect to its rights, while forfeiture 

depends on when the law dictates that a right be asserted. Crowley, 883 

F.3d at 748. Thus, when we rely on XBS’s omissions in this opinion, it 

is not as if we are holding that XBS or similarly situated defendants need 

to make affirmative arguments about certain rights or risk losing their 

defenses. Rather, we are engaging in a holistic analysis that reveals that 

XBS’s failure to raise certain arguments is one link in a chain of 

consistent behavior evincing its disinterest in pursuing the 2002 DRP 

signatories’ claims in arbitration—disinterest, that is, that lasted until 

XBS’s motion for summary judgment was determined (and denied) by 

the ruling of the Washington State Supreme Court.
34 TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC

forum if he instead relies on the judicial process. Id. Thus, 

under our implicit waiver analysis, we are tasked with 

evaluating a party’s actions and asking whether those 

actions, even if seemingly commonplace and not an express 

disavowal of arbitral forums, evinced the party’s partiality 

for a judicial resolution of the claims.

Here, there can be little doubt that XBS acted 

inconsistently with its right to compel arbitration under the 

2002 DRP. As the detailed factual and procedural history of 

this case reveals—and as explored further below—XBS 

exerted a significant amount of energy challenging the 

merits of the legal theory underlying the claims that Hill

raised personally and on behalf of the class members, 

including the 2002 DRP signatories. And XBS pursued this 

challenge in three different courtrooms (the district court, 

this Court, and the Washington Supreme Court), all without 

even attempting to reserve its arbitration right under the 

2002 DRP when it expressly and consistently did so for its

arbitration right under the 2012 DRP. While XBS could not 

actively move to compel arbitration until the moment that it 

did, the inferences drawn from the record all point towards 

waiver: namely, XBS embarked on a six-year appellate 

journey aimed at judicially resolving the merits—the legal 

heart—of the class members’ (including class members who 

had signed the 2002 DRP) claims with full knowledge that 

their claims were implicated by the appeal to the same extent 

as were Hill’s claims. And XBS evinced this understanding 

in its own briefing by consistently referring to its call center 

agents broadly, and by making a distinction between 

arguments made by “class counsel,” which were not 

applicable to Hill, and those that Hill raised for herself. The 

litigation history, during which the specific acts we analyze 

below occurred, tells the story of XBS’s tactical choice to 
TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC 35

resolve the claims judicially and reveals that XBS belatedly 

chose to retreat and to claim the benefit of arbitration under 

the 2002 DRP only once its judicial strategy failed.

First, as previously noted, XBS many times explicitly 

asserted as a ground for obligatory arbitration the 2012 DRP 

without also asserting the same for the 2002 DRP and it 

repeatedly noted that signatories to the 2012 DRP were 

“subject to binding individual arbitration.” The decision to 

pursue “binding individual arbitration,” where possible,

while keeping claims subject to possible group arbitration in 

federal court with other nonarbitrable claims is similar to the 

facts of Van Ness, where we previously found waiver of the 

right to arbitrate. Similarly, in opposing Hill’s motion to 

certify a class, XBS asserted that the 2012 DRP precluded

certification for lack of typicality as a basis for denying class 

certification, without similarly raising the lack of typicality 

of class members who signed the 2002 DRP. Our system

generally does not permit a party to lie in the weeds without 

consequences.

19 And while the two agreements are certainly 

different contracts, these differences imply that XBS 

believed it was more strategically advantageous to challenge 

the merits of the 2002 DRP signatories’ claims through its 

summary judgment motion or by defeating class certification 

with the individualized damages calculations instead of 

relying on the arbitration right that it raised only for the 2012 

DRP. On its own, the disparate treatment is not 

dispositive—nor is it some counting rule as the dissent 

19 Indeed, we have previously held that “a party’s extended silence and 

delay in moving for arbitration may indicate a conscious decision to 

continue to seek judicial judgment on the merits of the arbitrable claims, 

which would be inconsistent with a right to arbitrate.” Martin, 829 F.3d 

at 1125 (cleaned up).
36 TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC

contends—but instead serves as evidence from which we can 

infer that XBS wanted the 2002 DRP signatories’ claims, 

unlike the claims of the 2012 DRP signatories, resolved on 

the merits in court. When paired with the discovery requests 

and the summary judgment motion that involved six years of 

merits litigation, discussed below, this disparate treatment 

implies that XBS’s “extended silence and much-delayed 

demand for arbitration [under the 2002 DRP] indicates a 

‘conscious decision to continue to seek judicial judgment on 

the merits of the arbitrable claims [raised by the 2002 DRP 

signatories]. This choice was inconsistent with the 

agreement to arbitrate those claims.’” Van Ness, 862 F.2d at 

759 (internal alterations omitted).

Second, XBS further sought to take advantage of

litigation in federal court by requesting extensive discovery 

on unnamed parties to the case—discovery which 

necessarily included signatories to the 2002 DRP. In its first 

discovery requests to Hill, XBS defined “Putative Class 

member” as follows:

“Putative Class member” means individuals 

included in the “Class Definition” provided 

in Plaintiffs Second Amended Class Action 

Complaint, with the exception of any 

employees of Defendants who were hired 

since September 2012 and who entered into 

or are subject to the Xerox Business Services 

Dispute Resolution Plan and Rules (“DRP”) 

that includes an individual arbitration 

agreement and class action waiver that bars 

their participation in this litigation.

(emphasis added). XBS notably excepted from its discovery 
TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC 37

requests signatories to the 2012 DRP, while not excepting

the 2002 DRP signatories—thereby requesting that Hill 

provide extensive information on putative class members 

such as the 2002 DRP signatories. Among other particulars, 

XBS requested the following information from Hill:

Interrogatory No. 1: For Plaintiff and each 

Putative Class member, please describe in 

detail every communication (e.g., the sender, 

receiver, date, manner, and content of the 

communication), if any, received by the 

individual or of which the individual is 

aware, that required, requested, allowed, 

suffered, or permitted the individual to work 

any time that was not properly recorded in 

Defendants’ respective timekeeping systems.

Interrogatory No. 2: For Plaintiff and each 

Putative Class member, please list the precise 

amount of unrecorded, off-the-clock, or 

uncompensated work, if any, each individual 

worked each work week while the individual 

was employed by one of the Defendants.

Interrogatory No. 3: For Plaintiff and each 

Putative Class member, please state precisely 

how each weekly amount of unrecorded, offthe-clock, or uncompensated work identified 

in Interrogatory No. 2, if any, was calculated, 

specifying the precise amount and timing of 

any pre-shift, during shift, and post-shift 

work claimed each day.
38 TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC

***

Request for Production No. 6: Please 

produce all documents received by Plaintiff 

or any Putative Class member or of which 

Plaintiff or any Putative Class member is 

aware that required, requested, allowed, 

suffered, or permitted them to work any time 

that was not properly recorded in 

Defendants’ respective timekeeping systems.

***

Request for Production No. 9: Please 

produce all journals, diaries, calendars, day 

planners, schedules (both paper and 

electronic), logs, and any other document that 

discusses the activities of Plaintiff or any 

Putative Class member or reflects how they 

spent their time on any day that they worked 

for a Defendant from June 5, 2010, to the 

present, including, but not limited to, any 

documents or emails that reflect or contain 

personal notes, thoughts, concerns, 

understandings, appointments, schedules, 

social or business engagements, or 

obligations or expenditures of time.

Request for Production No. 10: Please 

produce all bank records of Plaintiff or any 

Putative Class member that reflect when 

and/or where expenditures were made 

covering time periods during which they 

worked for a Defendant at any time from June 
TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC 39

5, 2010, to the present, including, but not 

limited to, all records of ATM transactions 

and copies of checks for accounts maintained 

by them, for their benefit, or that they have 

used.

(emphases added). To be sure, Hill declined to produce any 

of the requested information, and instead responded to each 

of these discovery requests the same:

Plaintiff specifically objects to this request 

because it seeks Plaintiff’s knowledge 

regarding “Putative Class members” and 

[information or documents] related to 

“Putative Class members,” which are 

improper subjects for discovery to class 

representatives. 3 Alba Conte & Herbert B. 

Newberg, Newberg on Class Actions § 7:8 

(4th ed. 2013) (“[T]he extent of the 

knowledge of the plaintiff of claims of absent 

class members is irrelevant and an improper 

subject for discovery.”).

However, that Hill may not have been directly prejudiced by 

XBS’s requests concerning 2002 DRP signatories is 

immaterial after Morgan. It is clear from the record that 

XBS explicitly sought extensive discovery as to 2002 DRP 

signatories20—signatories XBS treated as putative class 

20 While the dissent quibbles with our use of the word “extensive” to

challenge our treating the discovery requests as evidence of inconsistent 

acts, Dissent at 68, it fails to dispute that the documentation and details 

about the class members that XBS expected to receive as a result of these 
40 TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC

members—which weighs in favor of a finding that XBS 

acted inconsistently with its right to compel arbitration under 

the 2002 DRP. Again, the discovery requests served on Hill 

regarding the putative class, which included the 2002 DRP 

signatories, may not be dispositive. But they serve as 

evidence that XBS wanted to challenge judicially the merits

of the claims that the putative class members were 

underpaid21—a strategic choice that was revealed by XBS’s 

reliance on the judicial discovery mechanism. Just as with 

the disparate treatment between the 2002 DRP and 2012 

DRP, this discovery behavior further substantiates the 

inferences drawn from the record suggesting that XBS was 

more interested in resolving this litigation, which included

the 2002 DRP signatories’ claims, in court rather than in 

requests would have been quite expansive. That Hill ignored them has 

no bearing on the fact that demanding of Hill all of the details she had 

on all putative class members, such as timekeeping communications, 

information about the purportedly uncompensated work that was 

performed, and the precise calculations used to ascertain how much the 

class was underpaid, amounted to asking that Hill turn over a significant 

amount of information. This is on top of XBS’s demands for all the timekeeping documents, bank records, and personal logs kept by the putative 

class members. Although Hill responded to each request with the same 

objection, XBS anticipated receiving a considerable amount of

documentation relating to the factual basis for all putative class 

members’ claims, including those of the 2002 DRP signatories. Thus, 

there is nothing untoward about describing the requested discovery on 

the 2002 DRP signatories as extensive.

21 Indeed, as highlighted in this case’s procedural history, XBS continued 

to engage in active discovery regarding the 2002 DRP signatories even 

after it had made express its intention of compelling arbitration under the 

2002 DRP after class certification was finalized: XBS produced time 

sheets and even engaged an expert to produce a report that challenged

class counsel’s expert’s method for calculating how much class members 

were purportedly underpaid. See supra note 14.
TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC 41

arbitration.

Third, and most clearly, XBS “actively litigated” this 

case through filing a motion for partial summary judgment 

on the issue whether unnamed class members subject to 

XBS’s ABC Pay scheme were “piecemeal” workers under 

the MWA. If granted, this motion would have defeated a 

substantial amount of the claims in this case, both as to Hill 

and as to the signatories of the 2002 DRP. This motion for 

partial summary judgment led the district court to certify an 

interlocutory appeal which XBS pursued for nearly five 

years. It is difficult to understate the possible effect of this 

particular strategy. Had it been effective, it would have 

struck an arrow through the heart of all class members’ 

claims, including the claims of the signatories of the 2002 

DRP. And XBS aggressively pursued its interpretive theory, 

even after the legal argument had failed, see supra note 10. 

These actions reveal that XBS was determined to foreclose 

all class claims, including those of class members who had 

signed the 2002 DRP, by obtaining a favorable judicial 

ruling. In the motion to dismiss context, we have noted that 

a party seeking “dismissal with prejudice on a key merits 

issue that would preclude relief as to one or more of 

plaintiffs’ claims . . . [is] seeking a ruling on the merits.” 

Martin, 829 F.3d at 1126 n.4. Similarly, XBS was “seeking 

a ruling on the merits” through its motion for partial 

summary judgment, which ruling would have foreclosed the 

claims of the entire ABC Class, whether or not the members 

of the ABC class had signed the DRP agreements of 2012 or 

2002.22

22 Beyond its argument for a bright-line rule that a class action defendant 

can never waive its right to compel arbitration as against unnamed class 
42 TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC

members, XBS presents no reasons explaining why litigating its motion 

for partial summary judgment is consistent with its right to compel 

arbitration under the 2002 DRP. A ruling that putative class members 

were “piecemeal” and not “hourly” workers under Washington’s 

Minimum Wage Act would have denied the claims of all ABC Class 

members, whether they were signatories to the 2002 DRP, 2012 DRP, or 

indeed, even non-signatories to either. 

The dissent’s argument to avoid this result is also unavailing. The 

dissent claims that in isolation we can understand the summary judgment 

motion as being directed only at Hill and her claims and therefore we

should not credit this as an inconsistent act. Dissent at 65–66, 66 n.1. 

There are several problems with this argument. 

First, XBS filed an opposition to Hill’s motion for certification 

immediately prior to filing this summary judgment motion, in which 

opposition it contended that the proposed class, which included the 2002 

DRP signatories but excluded the 2012 DRP signatories, failed because 

of individualized damagesissues and because Hill and the proposed class 

did not have a proper claim under XBS’s theorized interpretation of the 

MWA. XBS also previewed its summary judgment motion in this 

opposition filing by stating that “[n]ow that [Hill’s] counsels’ 

argument(s) have finally been revealed, Defendants will move for 

summary judgment” on its theory that “Hill’s argument(s) are simply a 

misstatement of the law” with respect to the purported underpayment 

that was applicable to every single class member’s claims, 2002 DRP 

signatories included. For this reason, XBS argued that the district court 

should “consider that motion prior to ruling on class certification” in 

light of the caselaw encouraging district courts to exercise their 

discretion and rule on summary judgment motions first if doing so would 

obviate further litigation. It was against this backdrop that XBS filed its 

summary judgment motion. This timeline creates a strong inference that 

XBS understood that even if no class were yet certified, its success on 

the merits of its theory that the class was paid the proper amount for its 

work under a payment plan that was compliant with the Washington 

MWA would defeat Hill’s claims as well as the claims of all of the other 

individuals in the proposed class (including the signatories to the 2002 

DRP) that XBS was simultaneously trying to stop from being certified. 
TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC 43

Attempting to obtain a judicial resolution on the merits of the causes of 

actions undergirding all the class claims that XBS expressly knew would 

affect more than just the named class representative, in this context, 

evinces XBS’s desire to remain in a judicial forum rather than to seek 

refuge in arbitration. 

Second, XBS actually argued in its summary judgment motion that the 

district court should resolve the open issue whether the “structure of the 

compensation system[]” “violate[d] the Washington Minimum Wage 

Act” because that resolution would “obviate the need for certification.” 

And XBS’s entire briefing on whether its compensation structure 

violated the MWA focused on aspects of the complaint that were 

applicable to the “agents” of the company and the arguments that “class 

counsel” had made but were “not advanced by Hill.” In fact, XBS made 

the fact that it was attacking both Hill and the absent class members

(which XBS defined as including the 2002 DRP signatories) express. It 

argued that Hill’s theory regarding the compensation structure could not 

prevail because it would “harm[] the very people Hill allegedly seeks to 

represent.” (emphasis added). The language XBS used in its own 

briefing belies the dissent’s contention that XBS was focused solely on 

arguing against Hill when it submitted its summary judgment motion. It 

explicitly distinguished between Hill and the class counsel and made 

frequent reference to the claims of the class members rather than just to 

Hill. This strategic language employed in the summary judgment 

briefing bespeaks XBS’s desire to obtain a judicial resolution on the 

merits of the 2002 DRP signatories’ claims.

Again, the dissent’s choice to read the question in isolation fails to 

appreciate the context that evidences XBS’s inconsistency with respect 

to its arbitration rights under the 2002 DRP. The context explains why 

the fact that Hill was the only joined party to the lawsuit does not do the 

work the dissent believes it does. XBS may have nominally been 

litigating against Hill at the time. But its strategic approach to the 

impending class certification reveals that XBS knowingly argued about 

the merits of all class members’ claims, whether arbitrable or not, for the 

express purpose of obtaining a judicial order that would foreclose all

class claims. This go-for-broke strategy to end the litigation in one fell 

swoop judicially—without any suggestion that XBS intended on 
44 TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC

These actions present a clear narrative of XBS’s strategic 

choice to engage the judiciary for resolution of the class 

claims rather than to obtain a resolution from an arbitrator. 

Taking them together, XBS treated its arbitration right under 

the 2002 DRP as akin to the other class claims that XBS 

viewed as meritless not because of any contractual right 

XBS held, but because XBS believed that its ABC payment 

structure was legally compliant with the Washington state

wage law, which implied that no underpayment occurred. 

XBS repeatedly excluded the 2012 DRP but left the 2002 

DRP to be litigated just the same as the non-arbitration 

bound class claims, like Hill’s. XBS engaged in discovery 

and attacked the legal merits of those claims with a summary 

judgment motion, in which motion XBS made clear that it 

was challenging more than just Hill’s litigation strategy: it 

employed language speaking to the ABC payment system 

writ large, it repeatedly referred to its agents as a whole, 

rather than referring just to Hill, and it even went so far as to 

distinguish, expressly, between Hill’s arguments and her 

counsel’s arguments on behalf of the “people Hill allegedly 

seeks to represent.” Under our caselaw, XBS’s behavior was 

inconsistent with its 2002 DRP arbitration right because it 

evinced a strong preference for judicial resolution of the 

2002 DRP signatories’ claims on the merits—namely,

whether the ABC payment plan ran afoul of the MWA. As 

we have explained in cases past, now that XBS’s strategic 

choice to litigate in federal court has failed to pan out, we 

will not endorse its attempt to play a game of “heads I win, 

tails you lose” by belatedly seeking refuge in arbitration for 

the resolution of those same claims. Martin, 829 F.3d at 

retaining its right to arbitrate against the 2002 DRP signatories—could 

not be more inconsistent with XBS’s arbitration right. 
TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC 45

1125 (internal quotations omitted).

Indeed, even in 2019, XBS did not act consistently 

before the district court when it came to the 2002 DRP 

signatories. In a joint status report to the district court, XBS

raised the issue of putative class members who had signed 

the 2002 DRP and explained that “now that Plaintiff has 

opened the door to this issue,” “[a] certified class cannot 

include class members who entered into arbitration 

agreements.” XBS also stated that it “anticipate[d] . . . filing 

its own motion regarding class certification issues.” But 

XBS never filed such a motion, nor did it ask the district 

court to remove the 2002 DRP signatories from the certified 

class. When the district court did not address the 2002 DRP 

signatories in its August 13, 2019 order, XBS made no 

apparent, further effort to flag the issue for the court. XBS’s 

actions both demonstrate its ability to raise these issues prior 

to the end of the opt-out period, and its failure to take a 

consistent approach as to whether the inclusion of the 2002 

DRP signatories in the class was an issue that the district 

court should have addressed.

XBS’s attempt to overcome these arguments by 

contending that the language in the class notice itself

demonstrates that it had not acted inconsistently with respect 

to the 2002 DRP signatories is unavailing. XBS cites the

following language as evidence of its consistent behavior:

“Defendants have also raised other defenses including . . . 

that other Class Members are required to pursue their claims 

through individual arbitration.” And it reads these 

“defenses” as necessarily incorporating and preserving its 

right to compel arbitration against the 2002 DRP 
46 TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC

signatories.23 But we do not think the class notice saves 

XBS from the unfavorable inferences drawn from XBS’s 

other actions. The class notice at various points noted that 

class members’ rights would be adjudicated in the class 

action unless they opted out, and it specifically noted that 

employees who had signed the 2012 DRP were excluded 

from the class, without expressly mentioning the 2002 DRP. 

At most, the class notice noted that XBS might try to argue

that some persons receiving the notice who were not subject 

to the 2012 DRP might also be required to pursue their 

claims in arbitration. 

But the language in the class notice that XBS points to 

did not somehow insulate XBS from a finding that it had 

waived any right to pursue arbitration under the 2002 DRP. 

And a generalized reference to defenses does not foreclose 

XBS’s having engaged in litigation behavior that is 

inconsistent with its exercising its right to arbitrate, as we 

have found here. This is especially true given the timing of 

when XBS crafted the class notice: late 2019. The class 

notice was drafted after XBS had succeeded in excluding the 

2012 DRP signatories from the class two separate times. It 

also was written after XBS had served discovery requests on 

Hill evincing a desire to use the judicial forum to resolve the 

23 XBS appears to have failed to see the irony in making this argument. 

Even though we do not find the language unequivocal as XBS does, by 

contending that the notice’s language identifies that XBS has “raised 

other defenses”—which XBS contends include its right to compel 

arbitration under the 2002 DRP—XBS has effectively conceded the 

knowledge prong of the waiver analysis. Namely, if XBS believes that 

it could communicate its right to arbitration under the 2002 DRP in the 

notice and that it in fact did, it admits that it both had knowledge of that

right and that it knew how to assert its intention of exercising that right

prior to having the actual ability to do so.
TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC 47

putative class members’ claims, which putative class 

included the 2002 DRP signatories. And most importantly, 

the class notice was crafted after the six-year appellate 

detour XBS took to litigate the merits of the ABC system’s 

compliance with the MWA, which merits-based decision 

would have effectively rendered the 2002 DRP signatories’ 

claims a nullity had XBS’s theory succeeded. XBS’s choice 

of language for the class notice, was too little and far too late.

Overall, considering the totality of the circumstances, as 

we must,24 we hold that the district court properly found that 

XBS has acted inconsistently with its right to compel 

arbitration under the 2002 DRP.

C. Futility

Finally, XBS asserts two reasons why it would have been 

“futile” for it to have filed a motion to compel arbitration 

sooner than it did, and that, accordingly, its otherwise clear 

waiver of the right to compel arbitration should be excused. 

The doctrine of futility establishes that a party unable to 

assert a right due to the prevailing state of the law is excused 

from conduct otherwise constituting waiver.

Fisher v. A.G. Becker Paribas, Inc. acknowledged a 

futility defense to negate a party’s failure to compel 

arbitration earlier in the litigation. 791 F.2d 691, 693 (9th 

Cir. 1986). There, a securities firm had been sued by a group 

24 See, e.g., Newirth, 931 F.3d at 942 (“Under the totality of these 

circumstances, we conclude that Aegis knowingly decided to defer its 

right to compel arbitration to avail itself of the benefits of the federal 

court forum, an intentional action inconsistent with its known right to 

compel arbitration.”); Martin, 829 F.3d at 1126 (“We agree with the 

district court that the totality of these actions satisfies this element 

[inconsistent acts].”)
48 TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC

of investors on both federal securities law claims and state 

law claims. Id. at 692. The investors had signed contracts 

with the securities firm agreeing to resolve any dispute by

arbitration. Id. at 693. However, there was a growing 

recognition of the judicial doctrine known as “intertwining,” 

which prevented a party from compelling arbitration when a 

lawsuit contained both arbitrable and nonarbitrable claims 

that arose from the same transaction. Id. at 695–97. Under 

an application of the “intertwining” doctrine, the securities 

firm in Fisher would not have been able to compel 

arbitration of the state law claims (which were otherwise 

arbitrable), as the federal securities law claims were 

nonarbitrable at that time. Id. at 697.25

The initial lawsuit in Fisher was brought in August 1981. 

Id. at 696. The Supreme Court rejected the “intertwining” 

doctrine in March 1985. Dean Witter Reynolds, Inc. v. Byrd, 

470 U.S. 213 (1985). Therefore, from August 1981 until the 

decision in Dean Witter Reynolds was handed down in 

March 1985, the securities firm did not file a motion to 

compel arbitration due to its belief that doing so would have 

been “futile.” Id. at 693. However, shortly following Dean 

Witter Reynolds, the securities firm filed a motion to compel 

arbitration. Id. The district court denied the motion after

finding the right to compel arbitration was waived. Id. This 

court in Fisher reversed and remanded on the basis of

futility. Id. at 698.

Notably, our circuit did not formally recognize the 

“intertwining” doctrine until February 1984 in Byrd v. Dean 

25 Federal securities claims arising under the Securities Act of 1933, as 

were asserted in Fisher, were not arbitrable until the Supreme Court 

decided Rodriguez de Quijas v. Shearson/American Express Inc., 490 

U.S. 477 (1989).
TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC 49

Witter Reynolds, Inc., 726 F.2d 552 (9th Cir. 1984), the case 

the Supreme Court took on appeal and ultimately used as the 

vehicle to reject the “intertwining” doctrine altogether. 

Therefore, from August 1981 (the filing of Fisher) through 

our decision in Byrd in February 1984, the doctrine of 

“intertwining” was not established in Ninth Circuit caselaw. 

Id. at 697. However, Fisher found that although there was 

no binding precedent establishing “intertwining” in this 

circuit, the securities firm 

correctly suggested that it would have been 

futile for it to make a motion to compel 

arbitration at the outset of this litigation. As 

noted above, counsel for [the securities firm] 

examined the complaint filed by the Fishers 

and decided, based on our comment in De 

Lancie v. Birr, Wilson & Co., 648 F.2d 1255, 

1259 n.4 (9th Cir. 1981) and the trend of 

federal authority, that a motion for arbitration 

would have been denied because the claims 

were not severable. An evaluation of existing 

case law on this subject from 1981 to 1985 

would have indicated to any competent 

attorney that an agreement requiring 

arbitration of disputes involving securities 

law violations was not enforceable in this 

circuit until the Supreme Court’s repudiation 

of the rule in 1985.

Id. Following Fisher, we have seldom had occasion to 

discuss the contours of our futility jurisprudence. However, 

we provided the following commentary on futility in 

Gutierrez v. Wells Fargo Bank, NA, 704 F.3d 712 (9th Cir. 

2012):
50 TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC

Wells Fargo claims that any “existing right” 

arose only after Concepcion and thus it did 

not act inconsistently with that “existing 

right” because it would have been futile to 

seek arbitration earlier. See Fisher, 791 F.2d 

at 695. The futility of an arbitration demand, 

however, is not clear cut here. In 

contemporaneous consumer litigation, 

litigants did succeed in compelling 

arbitration despite the existence of the 

Discover Bank rule. See, e.g., Dalie v. Pulte 

Home Corp., 636 F.Supp.2d 1025, 1027 

(E.D.Cal.2009) (recognizing that “under 

California law a class action waiver is only 

unenforceable in a narrow set of 

circumstances”); McCabe v. Dell, Inc., No. 

CV 06–7811, 2007 WL 1434972, at *3–4 

(C.D. Cal. Apr. 12, 2007) (compelling 

arbitration after finding the arbitration clause 

enforceable under California law); Galbraith 

v. Resurgent Capital Servs., No. CIV S 05–

2133, 2006 WL 2990163, at *2 (E.D. Cal. 

Oct. 19, 2006) (same). Especially because 

the CAA did not prohibit class arbitration, a 

motion to compel arbitration was not 

inevitably futile under the prescribed case-bycase analysis. See Douglas v. U.S. Dist. 

Court for Cent. Dist. of Cal., 495 F.3d 1062, 

1068 (9th Cir. 2007) (whether arbitration can 

be compelled “depends on the facts and 

circumstances developed during the course of 

litigation”).

Id. at 721 (emphases added). Whatever tension may exist 
TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC 51

between the futility standards articulated in Fisher (futility

exists if the right asserted is not guaranteed to be enforced) 

and Gutierrez (futility exists only if the assertion of the right 

is guaranteed to fail), we are satisfied that XBS has not met 

its burden to establish futility. 

On this point, XBS first reprises the argument that it 

would have been futile to file a motion to compel arbitration 

until after class certification and notice, as until after class 

certification and notice brings the unnamed class members 

into the case, the district court lacked jurisdiction over those 

individuals. The short answer: waiver does not require a 

court to have jurisdiction over the beneficiaries of the 

waiver; it does not even require a lawsuit to have been filed.

As previously discussed, we do not hold that XBS was 

required to file a motion to compel before it did. Instead, we

simply recognize that under the circumstances of this case—

and given XBS’s various other actions (including raising the 

2012 DRP arbitration agreement repeatedly during its 

motions practice before the district court)—it was

permissible to find that XBS engaged in actions during the 

course of the litigation that were inconsistent with its right 

to compel arbitration under the 2002 DRP. And we conclude 

that as a result, had it wanted to preserve its arbitration rights 

under the 2002 DRP, XBS had a choice to set the record 

straight by dispelling the notion that it was waiving its rights

under that 2002 agreement. Namely, rather than laying 

down a “use it or lose it” rule that will require future

defendants with arbitration agreements to provide

affirmative notice of their arbitration rights at a specific time 

during the litigation—which would be proper only for a

forfeiture case—we find that XBS was at risk if it failed to 

provide notice of its intention to seek arbitration of the 

claims of signatories of the 2002 DRP because such notice 
52 TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC

was needed to correct the impression of waiver that XBS 

itself created when it acted inconsistently with its 2002 DRP 

arbitration rights by its litigation practices in the courts.

For this reason, XBS errs in relying on our decision in 

Moser v. Benefytt, Inc., 8 F.4th 872 (9th Cir. 2021). In that 

case, the district court held that a class action defendant had 

waived any objection to class certification based on the 

district court’s lack of personal jurisdiction over nonCalifornia plaintiffs because the defendant had not included 

that defense in its Rule 12 motion to dismiss earlier in the 

suit, even though at the time of the Rule 12 motion, those 

out-of-state plaintiffs were only putative class members and 

were not yet parties to the litigation. Id. at 874–75. We 

explained that a defendant loses a motion to dismiss based 

on lack of personal jurisdiction by failing to include the 

defense in a Rule 12 motion only if that defense were

“available” at the time of the motion. Id. at 877 (relying on 

the language in Fed. R. Civ. P. 12(g)(2)). And we held that

as the defendant could not have raised a personal jurisdiction 

defense at the Rule 12 stage as to unnamed putative class 

members who were not parties and against whom a motion 

to dismiss could not yet be filed, such a personal jurisdiction 

defense was not then “available” under Rule 12(g)(2). Id. at 

877–78. 

Moser is of no help to XBS. Here, our holding affirming 

the district court is tied to XBS’s litigation behavior as a 

basis for its waiver—not its failure to compel arbitration 

against putative class members—whereas Moser dealt with 

the operation of Rule 12 and was expressly tied to its 

language regarding the “availab[ility]” of the defense of lack 

of personal jurisdiction. Because we hold that the district 

court permissibly found XBS waived this right through its 

specific actions and inactions over the course of years of 
TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC 53

litigation, Moser is inapposite. Moser would be analogous 

only if our holding in this case turned on the timeliness of 

XBS’s motion to compel arbitration, because Moser

assessed at what stage of the litigation that defendant was 

obligated to raise its personal jurisdiction defense by a

motion to dismiss. Instead, our analysis here turns on the 

separate issue of whether XBS’s litigation behavior evinces 

its knowledge of the right to compel arbitration and

consequently, whether it acted inconsistently with that right.

That XBS took actions inconsistent with its arbitration 

rights under the 2002 DRP by choosing to raise the 2002 

agreement as a defense only after engaging in six years of 

merits litigations that, had it been successful, would have 

defeated the claims by the signatories of the 2002 DRP 

agreement, despite having successfully preserved its 2012 

DRP arbitration rights by seeking the 2012 DRP signatories’ 

exclusion from the provisionally certified class,

substantiates a finding of waiver. And under the 

circumstances of this case, because its actions were 

inconsistent with its arbitration rights under the 2002 DRP, 

had XBS wanted to avoid a waiver of the 2002 DRP 

arbitration rights, it was responsible for concretely signaling 

its intention to raise the 2002 DRP arbitration defense to the 

court26—an act that would not have been futile because it 

26 Because the dissent claims that this amounts to a novel forfeiture rule,

Dissent at 81, it bears repeating why XBS was responsible for providing 

notice of its intention to compel arbitration under the 2002 DRP earlier 

in the litigation. This obligation does not arise because XBS’s actions 

were untimely—in fact, it appears that XBS’s motion to compel 

arbitration was in fact timely, which would make any finding that XBS

forfeited its 2002 DRP arbitration rights legal error. We are holding 

instead that XBS needed to provide notice of its arbitration rights
54 TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC

would have put all relevant parties on notice of its claimed 

right to arbitrate the claims of the signatories of the 2002

DRP. Indeed, the success XBS obtained in having the 2012 

DRP signatories excluded from the ABC Class is evidence 

enough that it would not have been futile for XBS to assert 

its right to compel arbitration under the 2002 DRP earlier in

the litigation below.

XBS second argument claims that it would have been 

futile to compel arbitration under the 2002 DRP before the 

Supreme Court decided Lamps Plus v. Varela, 139 S. Ct. 

1407 (2019). This is because, according to XBS, before 

Lamps Plus, it would not have been guaranteed individual 

arbitration under the 2002 DRP. This alternative futility 

argument fails for two reasons.

First, as XBS acknowledges, regardless whether 

arbitration were to be conducted individually or as a class, it 

had a valid right to compel arbitration under the 2002 DRP. 

To be sure, the differences between class arbitration and 

individual arbitration are significant. See, e.g., AT&T 

Mobility v. Concepcion, 131 S. Ct. 1740, 1751 (2011) 

(“[T]he switch from bilateral to class arbitration sacrifices 

the principal advantage of arbitration—its informality—and 

makes the process slower, more costly, and more likely to 

because of XBS’s own actions. The inconsistent actions that were 

highlighted earlier in this opinion and scattered throughout the 

procedural history of this case evinced XBS’s intentional relinquishment 

of its known arbitration rights under the 2002 DRP as it sought its 

judicial claim for relief. Had XBS wanted to preserve these arbitration 

rights, XBS had an obligation to set the record straight by dispelling the 

impression, created by its own inconsistent actions, that it was waiving 

its 2002 DRP arbitration rights.
TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC 55

generate procedural morass than final judgment.”). 

However, it strains credulity to argue that the difference 

between the two forms is vast enough to constitute 

categorically different rights, such that XBS could avail 

itself of a futility defense in this case. Whether individual or 

class-wide, arbitration differs from court litigation in several 

significant aspects, among which is the identity and nature 

of the decision maker. 

Second, and more fundamentally, XBS advances an 

invalid argument as to why, under Lamps Plus, it is now

guaranteed individual arbitration under the 2002 DRP. 

Before the district court, XBS argued that “it would have 

been futile for XBS to move to compel individual arbitration 

under agreements, like the pre-2012 agreements [i.e., the 

2002 DRP], that were silent regarding class actions, until 

the Supreme Court’s decision in Lamps Plus, 139 S. Ct. 

1407, in 2019.” (emphasis added). And in its briefing to this 

court, XBS again asserted that the 2002 DRP “did not 

discuss class actions.” Lamps Plus, however, was not the 

first to address arbitration contracts akin to the 2002 DRP

that were “silent regarding class actions.” That issue had 

been resolved nearly a decade earlier in Stolt-Nielsen S.A. v. 

AnimalFeeds Int’l Corp., 559 U.S. 662 (2010), which held 

that class arbitration could not be compelled when the 

underlying contract was silent as to class arbitration versus

individual arbitration. “[A] party may not be compelled 

under the FAA to submit to class arbitration unless there is a

contractual basis for concluding that the party agreed to do 

so. In [Stolt-Nielsen], however, the arbitration panel [had 

incorrectly] imposed class arbitration even though the 

parties concurred that they had reached ‘no agreement’ on 

that issue.” Id. at 684. Lamps Plus addressed a separate 

issue, “whether the FAA similarly bars an order requiring 
56 TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC

class arbitration when an agreement is not silent, but rather 

‘ambiguous’ about the availability of such arbitration.” 139 

S. Ct. at 1412 (emphasis added). Accordingly, XBS cannot 

rely on Lamps Plus as establishing any new law with respect 

to arbitration agreements that are silent regarding class 

arbitration, as that issue was decided nearly a decade earlier 

by Stolt-Nielsen.

27

Altogether, it would not have been futile for XBS to 

assert the 2002 DRP throughout the course of the litigation 

below in the same manner as it did the 2012 DRP. Thus, we 

decline to excuse XBS’s waiver-worthy litigation conduct as 

being precipitated by futility.

27 The dissent takes issue with our conclusion that XBS’s reliance on 

Lamps Plus does not support its futility argument because in the dissent’s 

view, “the record shows that XBS sincerely believed” that Lamps Plus

changed the law. Dissent at 73. This argument cannot be credited. The 

Supreme Court began its opinion in Stolt-Nielsen with the following 

statement: “We granted certiorari in this case to decide whether imposing 

class arbitration on parties whose arbitration clauses are ‘silent’ on that 

issue is consistent with the Federal Arbitration Act (FAA).” 559 U.S. at 

666 (emphasis added). That opinion proceeded to mention “silence” or 

“silent” sixteen times throughout its analysis. After this decision, 

nothing short of willful blindness could permit a party to hold a 

“sincere[] belie[f]” that it would be forced into class-wide arbitration 

because its arbitration contract was silent on the matter. As Hill filed the 

first complaint in this case almost two years after this decision was 

handed down, XBS had actual knowledge of the Stolt-Nielsen holding. 

Therefore, XBS’s inconsistent behavior with respect to the 2002 DRP 

constituted a knowing relinquishment of its arbitration rights. See 

Gutierrez, 704 F.3d at 721–22 (rejecting a similar argument that it would 

have been futile to move for arbitration until the Supreme Court decided 

Concepcion because previous caselaw had protected the same right).
 TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC 57

IV. CONCLUSION

For all the foregoing reasons, we affirm the district 

court’s order denying Appellant’s motion to compel 

arbitration under the 2002 DRP.

VANDYKE, Circuit Judge, dissenting: 

This should not be a hard case. Under our precedents, a 

defendant may waive a right to compel arbitration only by 

intentionally relinquishing it. Fisher v. A.G. Becker Paribas, 

Inc., 791 F.2d 691, 694 (9th Cir. 1986). That intention can 

be express or implied. But for nearly four decades, this court 

has refused to find implied waiver unless a defendant 

completes concrete acts “inconsistent with the right to 

arbitrate.” Newirth by & through Newirth v. Aegis Senior 

Cmtys., LLC, 931 F.3d 935, 940 (9th Cir. 2019). A plaintiff 

who seeks to prove inconsistent acts faces a heavy burden. 

Fisher, 791 F.2d at 694. 

XBS never took a single act inconsistent with its intent 

to arbitrate the claims of its call-center employees who had 

signed arbitration agreements. That fact alone should end 

our analysis in this case. But there is more. XBS from an 

early date advised named plaintiff Ms. Hill and the district 

court of its intent to compel arbitration against those 

employees should the putative class be defined to include 

them. And during its extended litigation against Ms. Hill—

with whom it could not arbitrate, and therefore was required 

to litigate—XBS took no action that uniquely targeted absent 

class members and not Ms. Hill. And XBS moved to compel 

arbitration against every class member with whom it had an 

arbitration agreement on literally the first day after it could 
58 TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC

do so.

The majority does not dispute those facts, but it avoids 

the outcome they require by transforming our clear waiver 

rule into an opaque forfeiture rule. Under this new rule, a 

defendant loses its right to arbitrate against absent class 

members unless it affirmatively asserts the right long before 

it even knows who might be in the class, and even though it 

has no right to arbitrate with the named plaintiff with whom 

it is actually litigating. And even if a defendant nonetheless 

speaks into the void that it someday plans to arbitrate against 

some absent class members when that opportunity sometime 

ripens, it still forfeits that right if any of its routine 

precertification litigation activities against the named 

plaintiff is later deemed to have an indirect effect on 

potential class members with whom it has arbitration 

agreements.

This break from precedent is premised on little more than 

the majority’s misunderstanding of how much it may rely on 

its own preferences and instincts instead of on concrete acts 

to find waiver. The majority may feel XBS should have 

given more explicit notice about its intentions to compel 

arbitration against potential class members sooner than it 

did. The majority also may feel that lack of such explicit 

notice—which we’ve never required—unmasks XBS’s 

clandestine intent not to arbitrate if and after a class was 

certified. But precedent places no such burdens on 

defendants and no stock in the majority’s preferences and 

unconfirmed instincts. I therefore respectfully dissent.

I. DISCUSSION 

Ms. Hill filed her initial complaint in April 2012, 

purporting to represent a large class of current and former 

XBS call-center employees. A question as to her adequacy 
TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC 59

as a class representative quickly arose because she—unlike 

most of the employees in that putative class—had never 

signed an arbitration agreement. The district court did not 

immediately answer that question, which delayed 

certification of the class. But the clock was already ticking 

on Ms. Hill’s individual claims. XBS threaded a needle for 

the next two years, litigating issues that applied to Ms. Hill 

while (1) providing to Ms. Hill and her counsel the 2002 

arbitration agreement binding on many of the putative class 

members, and (2) telling the district court and Ms. Hill that 

it reserved its right to compel arbitration against members of 

the potential future class who had signed arbitration 

agreements.

In July 2014, the district court granted Ms. Hill’s motion 

to certify the putative class. But even then, the court 

declined to define that class while Ms. Hill and XBS battled 

in state court over the certified question of whether Ms. Hill, 

as an XBS call-center agent, was an hourly or piece-rate 

worker. See Hill v. Xerox Bus. Servs., LLC, 868 F.3d 758, 

763 (9th Cir. 2017) (certifying question); 426 P.3d 703, 708–

09 (Wash. 2018) (answering certified question); 771 F. 

App’x 771, 772 (9th Cir. 2019) (affirming and remanding) 

(mem). Five more years trickled through the hourglass 

without XBS ever litigating an issue unrelated to Ms. Hill 

particularly and her attempt to finally certify a class.

XBS’s slog through litigation against Ms. Hill reached a 

crossroads in July 2019, when she moved the district court 

to define the class to include signatories to the 2012 DRP. 

Her request represented an abrupt about-face from her earlier 

stipulation that those signatories were not members of the 

putative class, and XBS immediately objected to her attempt 

to smuggle thousands of new call-center employees into the 

class at the eleventh hour. In the parties’ first joint status 
60 TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC

report after Ms. Hill’s motion, XBS told her and the district 

court that “[i]f individuals subject to arbitration agreements 

are included in the class,” it anticipated “bringing motions to 

compel individual arbitration once the class is finalized.” 

XBS doubled down the following week, urging the district 

court to “find that individual arbitration agreements preclude 

class certification altogether” and thus decertify the class. 

As it had since Ms. Hill first brought this case, XBS still took 

no litigative action unrelated to Ms. Hill and her attempt to 

certify the class.

When the district court later issued an order defining the 

class to exclude the 2012 signatories, it did not mention the 

2002 signatories. XBS worked with Ms. Hill to develop a 

final list of class members for the purposes of notification, 

but it reiterated to her counsel that it believed the 2002 

signatories were subject to individual arbitration. The day 

after the notice administrator reported a final list of class 

members that included thousands of those signatories, XBS 

moved to compel arbitration with them. No one disputes that 

this was the earliest that XBS could have done so.

A. Legal Standard 

An “examination of whether the right to compel 

arbitration has been waived must be conducted in light of the 

strong federal policy favoring enforcement of arbitration 

agreements.” Fisher, 791 F.2d at 694. As such, the burden 

is on the plaintiff to show that a defendant has waived its 

right to compel arbitration. Id. She must demonstrate not 

only the defendant’s “knowledge of an existing right to 

compel arbitration,” but also the defendant’s “intentional 

acts inconsistent with that existing right.” Newirth, 931 F.3d 

at 940; see also Morgan v. Sundance, Inc., 142 S. Ct. 1708, 

1713–14 (2022). 
TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC 61

Some aspects of that second requirement are, 

unfortunately, murky: “There is no concrete test to 

determine whether a party has engaged in acts that are 

inconsistent with its right to arbitrate,” and so we ask 

whether “a party’s actions indicate a conscious decision to 

seek judicial judgment on the merits of the arbitrable 

claims.” Newirth, 931 F.3d at 941 (cleaned up). But at least 

three things are clear. First, “a party acts inconsistently with 

exercising the right to arbitrate when it (a) makes an 

intentional decision not to move to compel arbitration and 

(b) actively litigates the merits of a case for a prolonged 

period of time in order to take advantage of being in court.” 

Id. Second and inversely, “parties do not act inconsistently 

with a right to compel arbitration when they engage in 

litigation activities that do not evince a decision to take 

advantage of the judicial forum.” Id. Third, litigation alone 

does not evince waiver if it is not “a strategic decision to 

‘actively litigate,’ i.e., to forgo the right to compel arbitration 

and take advantage of a judicial forum.” Id. (cleaned up) 

(quoting Britton v. Co-op Banking Grp., 916 F.2d 1405, 

1413 (9th Cir. 1990)). 

Those requirements, until today, have ensured that we 

remember a key fact: “Waiver is different from forfeiture.” 

United States v. Olano, 507 U.S. 725, 733 (1993). On the 

one hand, waiver is the “intentional relinquishment or 

abandonment of a known right,” id. (cleaned up), such that 

it must be “affirmative and intentional,” Berkshire v. Dahl, 

928 F.3d 520, 530 (6th Cir. 2019). On the other hand, 

forfeiture can be inadvertent and often occurs due to a 

“mistake or oversight,” United States v. Williams, 930 F.3d 

44, 64 (2d Cir. 2019) (internal citation omitted), such as a 

party’s “failure to make the timely assertion of a right,” 

Berkshire, 928 F.3d at 530. To be sure, parties “can 
62 TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC

impliedly waive a right.” Newirth, 931 F.3d at 942; see also 

Van Ness Townhouses v. Mar Indus. Corp., 862 F.2d 754, 

759 (9th Cir. 1988). But a right can be impliedly waived 

only if “the parties’ actions amount to a knowing 

relinquishment of that right.” Newirth, 931 F.3d at 942; see 

also Van Ness Townhouses, 862 F.2d at 759. 

B. Analysis 

Applying this legal standard to the facts in this case, the 

outcome is clear. XBS could have waived its right to compel 

arbitration only if it took some concrete act suggesting it 

intended to waive that right. More than a decade into 

litigation, it still hasn’t taken any such act. Ergo, it did not 

waive its right. No simpler syllogism ever echoed in 

Aristotle’s Lyceum.

The majority does not really dispute the minor premise 

of that syllogism, i.e., the nonexistence of any concrete act 

that demonstrates waiver. Nor could it. But the majority 

erases the major premise and scribbles a novel forfeiture rule 

in its place. Under that new rule, a defendant forfeits its right 

to compel arbitration not only if it engages in a concrete 

inconsistent act, but also if a court conjectures from the 

“totality of the circumstances” that the defendant secretly 

intended to forfeit that right. Such a radical and unbounded 

expansion of waiver finds no support in precedent, and in 

any event fails here even on its own terms.

1. The Majority Offers No Evidence of Any 

Concrete Act of Waiver.

There are special considerations for the waiver analysis 

in class actions, and those considerations are at the heart of 

my disagreement with the majority. In a simpler world in 

which Ms. Hill herself was subject to an arbitration 
TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC 63

agreement like the putative class members she sought to 

represent, XBS could have (and presumably would have) 

immediately moved to compel arbitration with her. If it 

instead opted to litigate against her, we could reasonably 

conclude that XBS had intentionally waived its right to 

arbitrate her claims. But because Ms. Hill was not in fact 

subject to any arbitration agreement with XBS, XBS could 

not compel her to arbitrate her claims or class certification 

issues. Nor could XBS move to compel arbitration against 

putative class members who had signed arbitration

agreements until after the class was finally certified and its 

members identified. Meanwhile, XBS needed to determine 

whether Ms. Hill’s individual claims could survive a motion 

to dismiss or a motion for summary judgment. And XBS 

disagreed that her class claims satisfied all Rule 23 criteria. 

Possessing no contractual right to arbitrate any of those

issues, XBS had to litigate them in court.

It is black-letter law that, until the class was finally 

certified and notice given, none of the absent putative class 

members were actually parties to the litigation between Ms. 

Hill and XBS. See Smith v. Bayer Corp., 564 U.S. 299, 313 

(2011) (rejecting “the novel and surely erroneous argument 

that a nonnamed class member is a party to the class-action 

litigation before the class is certified” (internal quotation 

marks and citation omitted)). Presumably because of this, 

XBS limited its precertification litigation to issues related to 

Ms. Hill and her attempt to certify a class. Time and again 

and without exception, XBS restricted its answers, 

discovery, motion for summary judgment—everything—to 

issues related to Ms. Hill’s personal claims and her proposed 

class’s alleged inadequacies under Rule 23.

This tailoring of XBS’s litigation activity was no doubt 

informed by a bright-line distinction well-understood until 
64 TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC

smudged today. Waiver analysis in a case like this involving 

a named plaintiff who did not sign an arbitration agreement 

requires a court to distinguish between a defendant who (1) 

actively litigates against someone with whom the defendant 

has no right to arbitrate or against class certification 

generally, from one who (2) attempts to actively litigate 

against someone with whom the defendant does have a right 

to arbitrate. Only the latter defendant can be said to have 

acted consistent with an intent to waive its right to arbitrate. 

In contrast, a defendant sued by a named plaintiff seeking to 

certify a class and who defends the lawsuit in court before 

the class is certified, cannot be said to be making an

“intentional decision” to “take advantage of being in court” 

when that defendant is powerless to force the named plaintiff 

to arbitrate either her own claims or class certification. 

Newirth, 931 F.3d at 941. That’s because the defendant has 

no choice but to defend against the named plaintiff’s claims 

in court. Likewise, when the same defendant fights against 

class certification in court it cannot be said to be taking 

advantage of litigating in the judicial forum because it has 

no option to do otherwise; it cannot force the named plaintiff 

to arbitrate the question of class certification.

It is against that background understanding that we 

should evaluate whether XBS did anything to evince an 

intention to litigate specifically against the 2002 signatories. 

The majority says it did, pointing to three “acts” in this case 

that together purportedly expose XBS’s covert intent to 

waive its right to compel arbitration against those specific 

class members. First, XBS supposedly moved for partial 

summary judgment on the issue of “whether unnamed class 

members subject to XBS’s ABC Pay scheme were 

‘piecemeal’ workers” under Washington’s Minimum Wage 

Act. Second, XBS requested “extensive discovery on 
TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC 65

unnamed parties to the case,” which “necessarily included 

signatories to the 2002 DRP.” Third, XBS many times 

“asserted as a ground for obligatory arbitration the 2012 

DRP without also asserting the same for the 2002 DRP.” I 

will discuss each in turn.

a. XBS’s motion for summary judgment 

The majority’s first purported “act” cannot prove XBS’s 

intent to waive for the simple reason that it never happened. 

The majority portrays XBS’s summary judgment motion as 

directed at “unnamed class members.” But the motion 

nowhere mentions “unnamed class members,” and even a 

quick reading makes clear that, as one might expect, the 

motion addressed Ms. Hill and her claims. 

While the majority can’t show that XBS’s motion for 

summary judgment actually addressed absent class 

members, what it instead relies on is that a grant of summary 

judgment against Ms. Hill could have indirectly affected the 

claims of the putative class members she purported to 

represent. Sure. That will usually be the case when litigating 

against a named plaintiff of a putative class action. But 

indirect downstream effects are not the same as active 

litigation against the class members or their claims. XBS’s 

motion was entirely consistent with the fact that it was 

actively defending itself against Ms. Hill’s claims. By 

moving for summary judgment and making the arguments it 

made, XBS did nothing different than what it would have 

done if Ms. Hill had brought an individual action for her own 

claims instead of a putative class action. XBS had little 

choice but to seek summary judgment against Ms. Hill at that 

stage of the case, and the fact that it did so shows only that 

it was actively litigating against her, not against the then-
66 TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC

uncertified class.1

1 A careful reader might be confused by how the majority and I 

differently use the concept of whom the litigation was “directed at.” I 

use the concept to refer to whomever XBS’s litigation conduct was 

aimed at as a legal matter. Thus, for example, when XBS made 

arguments in support of its motion for summary judgment against Ms. 

Hill, I consider those arguments as directed at Ms. Hill, not at absent 

class members. It would have been strange indeed had XBS made 

arguments directed against absent class members in support of its 

summary judgment motion, since those class members were not parties 

to the case. 

Only once does the majority claim XBS did anything like that—

directed its arguments against class members to the exclusion of Ms. 

Hill—and the majority is simply wrong. It selectively quotes one of 

XBS’s summary judgment briefs before the district court, claiming XBS 

therein contested a claim “raised by ‘class counsel’” but “‘not advanced 

by Hill.’” But contrary to the majority’s suggestion, XBS never 

attempted to direct any argument against the absent class members and 

not Ms. Hill. Instead, in the passage referenced by the majority XBS 

merely highlighted that Ms. Hill in her deposition had disavowed any 

independent knowledge of a claim that her counsel had raised in her 

answers to interrogatories. XBS never said it was contesting a claim 

related only to the class and not to Ms. Hill.

Instead, the key difference between the majority opinion and this 

dissent is that the former generally appears to embrace what might be 

called the “ricochet” view of targeting, ignoring whomever XBS’s legal 

arguments were technically directed at, and looking instead to whomever 

the majority thinks XBS may have sub rosa hoped could be indirectly 

affected by its legal arguments if they were successful against Ms. Hill. 

Under the majority’s view, a defendant such as XBS apparently targets 

class members against whom it cannot yet litigate when it trains its sights 

on a named plaintiff such as Ms. Hill, directing its arguments against her 

as a legal matter, but with the surreptitious hope of also indirectly 

affecting the absent class members’ claims. That is, a defendant can 

target a hypothetical future class member—at least for waiver 

purposes—even when as a legal matter its litigation activity is directed 
TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC 67

Notably, XBS’s summary judgment motion is the only 

example of active litigation the majority references. So even 

if moving for summary judgment against Ms. Hill somehow 

also counted as “active litigation” against the uncertified 

class (which it should not), this single “act” would not come 

close to the “prolonged” litigation that we have required in 

other cases to find waiver. Newirth, 931 F.3d at 941. For 

example, in Van Ness Townhouses, which the majority views 

as “instructive,” the defendants made a “conscious decision” 

to waive arbitration by “answer[ing] the complaints and 

amended complaints, ... mov[ing] to dismiss the action,” 

“approving a pre-trial conference order,” and allowing the 

district court to set a trial date, all without ever “rais[ing] the 

issue of arbitration.” 862 F.2d at 756, 759. Importantly, the 

defendants in Van Ness Townhouses did all this while they 

“had an existing right to compel arbitration”; indeed, we 

explained that had the defendants “moved to compel 

arbitration” at any point, “the district court would have been 

required to grant that motion.” Id. at 759. Here, it is 

undisputed that XBS had no such right in litigating against 

Ms. Hill. Ever. 

The distinctions are even starker in other cases. In 

Martin v. Yasuda, for example, we found waiver only after, 

inter alia, the defendants “devoted considerable time and 

effort to a joint stipulation structuring the litigation, filed a 

motion to dismiss on a key merits issue, entered into a 

protective order, answered discovery, and prepared for and 

only at a named plaintiff with whom it has no arbitration agreement. This 

expansive view of who precertification litigation is directed against does 

most of the work for the majority, since in every inchoate class action 

the defendant’s precertification litigation against the named plaintiff will 

inevitably have some possible indirect effect on then-absent putative 

class members.
68 TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC

conducted a deposition.” 829 F.3d 1118, 1126 (9th Cir. 

2016) (cleaned up). Again, all while the right to compel 

arbitration was just sitting there available but unexercised. 

And significantly, the defendants in Martin also “told the 

district judge and opposing counsel that they were likely 

‘better off’” litigating the case in court “than handling it in 

arbitration,” and were even “warned ... about the possibility 

of waiver.” Id. at 1122, 1126. Nothing of the sort remotely 

happened here. The majority treats XBS as though it 

actively litigated against the class for years, when in fact the 

majority can point to only one example of active litigation—

that was not even against the class. 

b. XBS’s “extensive” precertification discovery 

The majority’s second purported “act” is, like the first, 

premised on a mistaken understanding of the record. Ms. 

Hill described XBS’s discovery requests as “extensive.” 

The majority repeats her characterization verbatim, claiming 

that XBS “sought to take advantage of litigation in federal 

court by requesting extensive discovery.” But XBS’s 

discovery requests consisted of only a handful of 

interrogatories and requests for production, as well as a 

grand total of two depositions. That’s it. Notably, XBS’s 

interrogatories and requests for production were never 

served on any putative class member. It is a stretch to call 

this “extensive” discovery, particularly given the breadth of 

Ms. Hill’s claims and the size of the class she sought to 

represent. 

But putting that aside, the amount of class discovery 

sought by XBS should be entirely irrelevant to the court’s 

analysis under our test for waiver. To be consistent with 

precedent, we must focus on inconsistency. And an act is 

“inconsistent” with preserving the right to arbitrate only if a 
TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC 69

defendant is litigating something that it could have arbitrated 

instead. See Black’s Law Dictionary 915 (Bryan A. Garner 

ed., 11th ed., 2019); Webster’s Third New Int’l Dictionary 

1144 (1986). Nothing in the discovery XBS sought—or in 

the documents and answers Ms. Hill provided in response—

can fairly be understood to have created such 

incompatibility.

It is the norm in class litigation for a defendant like XBS 

to conduct such precertification discovery. See, e.g., Vinole 

v. Countrywide Home Loans, Inc., 571 F.3d 935, 942 (9th 

Cir. 2009) (“Our cases stand for the unremarkable 

proposition that often the pleadings alone will not resolve the 

question of class certification and that some discovery will 

be warranted.”); 1 McLaughlin on Class Actions § 3:7 (19th 

ed. Nov. 2022) (explaining that “in most cases discovery into 

issues relevant to class certification is warranted and 

appropriate” and that “it is ordinarily an abuse of discretion 

to deny any class certification discovery”). In fact, Rule 23 

of the Federal Rules of Civil Procedure was amended two 

decades ago for the express purpose of accommodating 

precertification discovery like that which XBS requested.2 

Such precertification discovery is par for the course in 

class action litigation precisely because such class discovery 

is expected to “illuminate” class certification issues. Class 

discovery is not expected to determine or exhaust merits 

issues unique to the absent class members, even if there can 

2 See Report of the Judicial Conference Committee on Rules of Practice 

and Procedure 10 (Sept. 2002) (available at https://www.uscourts.gov/si

tes/default/files/fr_import/ST9-2002.pdf) (explaining that Federal Rule 

of Civil Procedure 23(c)(1)(A) was amended to clarify that “[a] certain 

amount of [precertification] discovery may be appropriate ... to 

illuminate issues bearing on certification”). 
70 TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC

be some overlap. This case is no exception. In fact, early 

on, the district court ordered that “[u]ntil the issue of 

certification is resolved, discovery is limited to class 

certification issues.” If requesting discovery about class

issues at the class certification stage—which happens in 

essentially every putative class action—is now to be treated 

as proof of a defendant’s secret intent to waive the right to 

compel arbitration, we should just be more forthright and 

explain that defendants must assert their intent to compel 

arbitration against uncertified class members by some 

specific deadline during or before class certification 

proceedings. If we did that, it would be more obvious that 

the majority’s supposed intentional waiver conclusion is 

really a disguised accidental forfeiture deadline. But at least 

it would be a clear rule parties could use to guide their 

behavior, instead of leaving them to guess how much 

precertification litigation against the named plaintiff, 

together with run-of-the-mill class discovery, will result in 

the “waiver” of merits defenses available only against the 

class.3

Unlike the majority, I would conclude that parties should 

be allowed to engage in normal precertification class 

discovery without fear of waiving any right to compel 

arbitration. By repackaging XBS’s class certification-stage 

discovery requests as proof of intentional waiver of a merits 

issue, the majority creates both a new rule and unnecessary 

uncertainty. And as with its treatment of XBS’s necessary 

3 Because the majority declines to adopt a bright-line rule today, no classaction defendant within this circuit can know for sure when a district 

court might find that precertification litigation has proceeded long 

enough for the judge to deem him or her to have waived a right to compel 

arbitration. That line will differ judge by judge, court by court, and case 

by case.
TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC 71

litigation against Ms. Hill, this feels like an unwinnable 

Catch-22 for defendants like XBS. 

Perhaps recognizing the unfairness of a general “waiverif-you-seek-class-discovery” rule, the majority claims that 

“[i]t is clear from the record that XBS explicitly sought 

extensive discovery as to 2002 DRP signatories.” This is 

both legally irrelevant and untrue. Neither the 2002 DRP 

nor its signatories are mentioned in any of XBS’s 

interrogatories or requests for production, and the majority 

does not point to a single request that “explicitly” references 

either. This is because XBS’s requests referenced “Putative 

Class members” generally. And while this of course 

“necessarily included” information relating to 2002 

signatories—in the sense that general class discovery 

“necessarily included” every putative class member—this is 

neither surprising nor “clear” proof that “XBS explicitly 

sought extensive discovery on 2002 DRP signatories” 

independent of the limited discovery about the proposed 

class generally. Rather, as with the majority’s other “acts,” 

it is simply the natural byproduct of XBS defending itself 

against Ms. Hill, who purported to represent those same 

signatories, and her attempts to certify a class that included 

them. 

c. XBS’s different treatment of the 2002 and 2012 

DRPs

The majority’s third purported “act” showing XBS’s 

intent to waive its arbitration right is XBS’s more frequent 

mention of the 2012 DRP than of the 2002 DRP during 
72 TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC

precertification proceedings.4 That trivia is irrelevant to our 

analysis because XBS was not required to raise that defense 

against either subset prior to certification. So the 

comparison between how much XBS relied on the 2012 

DRP versus the 2002 DRP while opposing class certification 

is a red herring. It shows that XBS could have discussed the 

2002 DRP more. But it says nothing about whether XBS 

needed to do so to avoid waiver (or, more accurately, 

forfeiture).5 

Even sidelining the majority’s confusion between what 

XBS did with what it was required to do, its criticism also 

presumes the 2002 and 2012 DRPs are identical with respect 

to class certification. But the two are “very different.” Ms. 

Hill’s counsel admitted as much during oral argument, and 

the majority’s protestations to the contrary are unconvincing. 

The majority acknowledges, for example, that the 2012 

4 Notably, XBS had no reason to raise either the 2002 DRP or the 2012 

DRP in defending against Ms. Hill’s claims. The agreements were 

entirely irrelevant because Ms. Hill never agreed to them. See Norcia v. 

Samsung Telecomms. Am., LLC, 845 F.3d 1279, 1283 (9th Cir. 2017) 

(“‘[A]rbitration is a matter of contract and a party cannot be required to 

submit to arbitration any dispute which he has not agreed so to submit.’” 

(quoting AT&T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 

648 (1986))). 

5 The majority’s emphasis on the fact that XBS relied more on the 2012 

DRP when it made class certification arguments might be taken as an 

equal treatment rule. That is to say, while a class action defendant is not 

required to raise arbitration agreements during class proceedings to avoid 

later waiver, if it raises one such agreement, it must raise them all. If 

that is what the majority means, it is not clear where this novel rule 

comes from, and it will be very confusing for class-action litigants and 

lower courts to apply. Particularly where, as here, the various 

agreements are different and arguably had different implications for class 

certification. 
TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC 73

DRP “expressly barred class-wide litigation of any claims,” 

whereas the 2002 DRP did not. In fact, the 2002 DRP is 

silent with respect to class actions or class-wide arbitration. 

This distinction is significant because XBS believed, and 

continues to argue, that the 2002 DRP’s lack of a classaction waiver limited its usefulness in arguing against class 

treatment of those signatories’ claims before the Supreme 

Court’s decision in Lamps Plus, Inc. v. Varela, 139 S. Ct. 

1407 (2019). The majority apparently disagrees with that 

assessment, but the record shows that XBS sincerely 

believed it to be correct.6

 And XBS’s belief that the 2002 

DRP was less relevant as an argument against class 

certification, even if mistaken, cannot “amount to a knowing

6 The majority insists that XBS could not really have believed this during 

the years between Stolt-Nielsen and Lamps Plus, because the Supreme 

Court in Stolt-Nielsen was clear enough that there was no right to class 

arbitration hiding in the shadows of silent contract provisions. I don’t 

disagree with the majority’s reading of Stolt-Nielsen—especially 

looking back on it from the vantage point of Lamps Plus. But the 

majority overlooks a phenomenon unfortunately experienced too often 

by those who practice regularly before our court, which is that 

sometimes notwithstanding the Supreme Court’s clarity, the Ninth 

Circuit somehow garbles the reception.

A few circuits bristled at being bridled by Stolt-Nielsen and resisted 

applying its holding by construing its language narrowly and inventing 

distinctions to cabin it. E.g., Jock v. Sterling Jewelers Inc., 646 F.3d 113, 

120–21 (2d Cir. 2011). Our circuit was part of that resistance, engaging 

in sporadic but “palpable evasion of Stolt-Nielsen” up to the day the 

Court reversed us in Lamps Plus. Varela v. Lamps Plus, 701 F. App’x 

670, 673 (9th Cir. 2017) (Fernandez, J., dissenting), rev’d, 139 S. Ct. 

1407 (2019). Indeed, the Supreme Court took up Lamps Plus precisely 

because it needed to clamp down on the waywardness of our court. It is 

more than a little unfair for the majority to accuse XBS of “willful 

blindness,” when that label might more accurately apply to our own 

court’s treatment of Stolt-Nielsen until Lamps Plus. 
74 TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC

relinquishment of th[e] right” to later compel arbitration. 

Newirth, 931 F.3d at 942 (emphasis added).7 

In any event, XBS raised the 2002 DRP in defending 

against Ms. Hill and class certification more than a dozen 

times over a period of eight years, including: in its answers 

to her original and amended complaints; in response to her 

discovery requests; in various communications with her 

counsel; in a draft and final Joint Status Report shared with 

her counsel and submitted to the district court; in response 

to her motion to define the scope of the class;8 in a 

declaration supporting the parties’ stipulated motion to 

approve class notice; and in the notice sent to putative class 

members.

In short, XBS was not required to make certain class 

arguments in opposing class certification to avoid losing its 

ability to compel arbitration once that right ripened. But 

even if it had been required to do so, XBS repeatedly raised 

the 2002 DRP with Ms. Hill’s counsel and the district court. 

And while XBS did not mention the 2002 DRP as much as 

it did the 2012 DRP, this does not show that XBS made a 

“conscious decision” to intentionally waive its right to 

compel arbitration under the 2002 DRP. Id. at 941. Rather, 

any difference in treatment is legally irrelevant and, in any 

7 I want to be clear: moving to compel arbitration before XBS did so 

would have been futile regardless of Lamps Plus. See Newirth, 931 F.3d 

at 942; Letizia v. Prudential Bache Secs., Inc., 802 F.2d 1185, 1187 (9th 

Cir. 1986). I mention Lamps Plus merely to provide one reasonable 

explanation for why XBS may have treated the 2002 DRP differently 

than the 2012 DRP for class certification purposes.

8 Although XBS explicitly raised the 2002 DRP with the district court in 

arguing against class certification, the district court ignored its argument 

and focused instead only on its arguments concerning the 2012 DRP.
TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC 75

event, explained by material distinctions in the content of the 

agreements. 

* * *

So to summarize: none of the three purported “acts” of 

XBS the majority points to supports a conclusion of waiver 

because each “act” intentionally related to Ms. Hill, with 

whom XBS had no right to arbitrate. Each of the “acts” the 

majority relies on took place well before class members 

became parties to this case, at a time when XBS was 

litigating against only Ms. Hill, who never agreed to arbitrate 

her claims. To be sure, Ms. Hill sought class certification in 

her initial complaint, but “a class action, when filed, includes 

only the claims of the named plaintiff.” Moser v. Benefytt, 

Inc., 8 F.4th 872, 877 (9th Cir. 2021) (internal quotation 

marks omitted).

The majority overlooks this critical fact, treating XBS’s 

acts of defending against Ms. Hill’s claims as though they 

were directed at the class. They were not. Her claims are 

distinct from theirs, and XBS’s acts of litigation against her 

were distinct as well. Indeed, it was impossible for XBS to 

litigate against the class until the class was finally certified 

and given notice. 

2. The Majority’s New Forfeiture Rule Fails Even 

on Its Own Terms.

While pointing to the above three “acts” as faintly 

signaling XBS’s intent to waive its arbitration right, the 

majority also appears to concede that each of these acts—

indeed, all of XBS’s litigation activities—considered 

individually was so “seemingly commonplace” that it could 

not reasonably be considered “an express disavowal of 

arbitral forums.” But that does not deter the majority, 
76 TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC

because the real engine for its conclusion in this case is its 

leverage of the totality-of-the-circumstances test our court 

articulated in Newirth.

9 Refashioning that test into a catchall 

for whatever instincts members of a court might have, the 

majority intuits that XBS must have intended to waive its 

right to compel arbitration. It squints at the record until it 

sees such intent lurking in the background of all of XBS’s 

litigation activities considered in toto. But as is often true, 

squinting too hard here distorts the view.

The majority points decisively to the amount of time that 

elapsed between the day Ms. Hill filed her complaint and 

XBS moved to compel arbitration, treating that as ironclad 

evidence that, all things considered, XBS implicitly yet 

9 Contrary to the majority’s suggestions, I do not deny the validity of the 

actual totality-of-the-circumstances test that Newirth and its progeny lay 

out. I object only to the majority’s stretching of that test beyond what 

fidelity to precedent and reason can brook, such that going forward a 

panel no longer need anchor its conclusions in anything concrete. As the 

majority effectively redefines the test today, a panel may invoke the 

“totality of the circumstances” to conclude that zero evidence of 

intentional waiver plus zero evidence of intentional waiver equals ample 

evidence of waiver. Apparently, there can be a forest even where there 

are no trees.

But my deeper and primary concern is that reliance on that standard 

should not supplant the more fundamental rule that waiver must always 

be intentional. As with application of multifactor balancing tests, courts 

depending on the totality of the circumstances should always be cautious 

to avoid effectively saying to litigants and the public: “just trust us, we 

know waiver when we see it.” That concern is heightened where, as 

here, the defendant’s intentionality is the touchstone of analysis. For all 

the same reasons that waiver requires intentional conduct to begin with, 

we should be loath to divine such intentionality by relying on some 

inscrutable standard that simply declares the whole to be greater than the 

sum of its parts.
TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC 77

intentionally waived its right to arbitrate. But nothing in our 

caselaw even suggests that how long a case lingers in its 

precertification phase is relevant to the analysis of waiver, 

let alone that it disposes of the question entirely. And by all 

accounts this is an odd case to use as a vehicle for creating 

such a new rule, as XBS moved to compel the very first day 

it could do so, i.e., the day after the notice administrator 

reported a final list of class members that included 

signatories to the 2002 DRP.

The majority also relies heavily on its view that XBS 

likely knew that some of its litigation activities against Ms. 

Hill could have derivative effects on members of the yet 

undefined class. As already explained, that rationale is 

deeply flawed. The well-established test is whether the 

defendant took any actions inconsistent with the right to 

arbitrate. Litigating against someone with whom you have 

no right to arbitrate (such as Ms. Hill), or litigating issues 

that you have no right to arbitrate (such as the class 

certification issues in this case), is not inconsistent with a 

right to arbitrate. 

And until today, nothing in our waiver precedents 

suggested our clear and administrable “inconsistent-withthe-right-to-arbitrate” standard somehow changes by the 

mere fact that a defendant’s non-arbitrable litigation 

activities might have foreseeable collateral consequences for

possible arbitration with others. It will usually be that case 

that some (perhaps many) litigation arguments against a 

named plaintiff will be similarly relevant to the possible 

future claims of some members of the putative class. That 

does not mean the defendant is making those arguments 

against the absent class members. It is, in fact, impossible 

for the defendant to do that before the class is finally 

certified, because those absent class members are not 
78 TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC

actually parties to the litigation. See Bayer Corp., 564 U.S. 

at 313. 

Instead of applying this well-established rule, the 

majority substitutes its intuition that, sure, XBS may have 

been actually litigating against Ms. Hill, but in its craven 

heart it was really going after the absent class members. I 

would stick to what XBS actually did and the actual legal 

import of its actions, not attempt to divine any motives it 

possibly had. And even if the majority’s mind-reading was 

correct, such prescience by a class defendant is hardly 

nefarious. It simply does not matter whether XBS knew its 

litigation activities against Ms. Hill could also possibly 

affect then-absent class members. We should not penalize 

XBS just because its counsel were not so dull as to fail to 

foresee possible fortuitous collateral consequences of 

making certain arguments in litigating against Ms. Hill. We 

should penalize XBS only if it took actions that were 

actually inconsistent with a right to arbitrate. And none of 

the litigation actions against Ms. Hill were, because XBS 

had no right to arbitrate with her.

The majority seems to relatedly argue that it was the 

cumulative impact that XBS’s litigation activities against 

Ms. Hill might have on future class members that implies 

XBS intended to waive its arbitration rights. For example, 

the majority highlights that XBS asked the district court to 

resolve its partial summary judgment motion before 

resolving the issue of class certification to “‘obviate the need 

for certification.’” Such a request is common enough 

because it usually would be inefficient to litigate all the class 

certification issues only to have the case later resolved on 

summary judgment. Yet the majority has a hunch that, in 

this case, XBS wasn’t really motivated by efficiency; that 

the request was just a ruse to resolve all issues related to the 
TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC 79

2002 signatories in court. Because there is no text in the 

summary judgment motion that makes that interpretation 

necessary, the majority invokes context even while 

providing none. “XBS may have nominally been litigating 

against Hill at the time,” the majority admits. “But its 

strategic approach to the impending class certification 

reveals that XBS knowingly argued about the merits of all 

class members’ claims, whether arbitrable or not, for the 

express purpose of obtaining a judicial order that would 

foreclose all class claims.” The majority regrettably fails to 

provide any reasoning or citation to support this intuition.

But more importantly, it ultimately does not matter 

whether its intuition is right or wrong. It may or may not be 

true, as the majority says, that XBS’s success in litigating 

various issues against Ms. Hill would have tolled a “death 

knell” for absent class members’ claims. Whatever validity 

an argument rooted in second-order death knells might have 

in poetry, it rings hollow in this court’s legal analysis of 

waiver, even under the totality-of-the-circumstances 

standard.10 The test our court has applied until today has 

been whether a defendant acted inconsistently with an intent 

to arbitrate, not whether a Rube Goldberg machine exists 

whereby a hypothetical absent class member hypothetically 

might indirectly suffer a disadvantage in hypothetical future 

arbitration as a result of a class defendant’s nondiscretionary litigation activities against an entirely different 

party. 

10 Compare John Donne, Meditation 17, in Sermons on the Psalms and 

Gospels 243 (Evelyn M. Simpson ed., 1963) (“[N]ever send to know for 

whom the bell tolls; it tolls for thee.”), with Newirth, 931 F.3d at 941. 
80 TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC

3. The Majority’s Strawmen

I suppose I should be flattered by the majority’s lengthy 

response to this dissent, sometimes in footnotes that span 

multiple pages. If only “the sweet breath of flattery 

conquer[ed] strife.” William Shakespeare, The Comedy of 

Errors act 3, sc. 1, l. 28. But alas not in this instance, 

because in defending its own position the majority 

repeatedly misrepresents mine, devastating a virtual army of 

strawmen. In light of the difficult argument the majority 

labors to make, the impulse to paint the contrary position as 

extreme is understandable. But it is important, I believe, to 

be as clear as possible about the differences between our 

positions—which includes, of course, what we don’t

disagree about. I have already clarified a few such 

misunderstandings. Two more merit brief correction.

First, the majority claims I disagree that a defendant may 

impliedly waive a right to compel arbitration, insisting that I 

argue “only direct evidence of waiver through an express 

disdain of the right to arbitrate can constitute acts 

inconsistent with that right.” That’s an obvious distortion of 

my position, as should be clear enough from the very first 

paragraph of this dissent. I agree with Newirth that the right 

to arbitrate can be impliedly waived; I disagree with the 

majority’s creative reimagining of how that can happen.

Second, the majority charges me with embracing the 

suspect principle “that a party needs to have present

authority to vindicate” its right to compel arbitration in order 

“to be able to take actions inconsistent with” that right, and 

then expatiates across multiple pages why that’s wrong. I 

take no such position. My argument is not that a defendant 

cannot waive its right to compel arbitration before that right 

has ripened. A defendant obviously could do so. But the 
TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC 81

majority can point to no evidence—and there is none—that 

XBS in fact demonstrated even the slightest real intent to 

waive its right to compel arbitration at any point in this case.

II. CONCLUSION 

Federal policy favors enforcement of arbitration 

agreements, and this court has long held that a defendant 

who possessed a right to compel arbitration can impliedly 

waive that right only if it acts in ways inconsistent with it. 

Newirth, 931 F.3d at 940. The majority today crowbars that 

narrow exception into a yawning new forfeiture rule with 

little in the way of a guiding principle other than a court’s 

inscrutable gut instincts about a class defendant’s hidden 

motives.

And all just to reward a named plaintiff and her counsel 

who knew since the infancy of this case that most of the class 

she purported to represent had arbitration agreements that, if 

properly enforced, could result in those class members being 

removed from her lawsuit. The majority strangely concludes 

that XBS rather than Ms. Hill and her counsel “l[aid] in the 

weeds” with respect to the 2002 arbitration agreement. I 

perceive quite differently who laid in the weeds.

First, this colorful metaphor implies stealth. But if XBS 

was trying to hide the 2002 arbitration agreement from Ms. 

Hill and her class counsel, it did a terrible job. It provided 

the 2002 DRP to Ms. Hill in response to her discovery 

requests back in 2013, shortly after she sued XBS and nearly 

seven years before the class was finally identified and XBS 

could move to compel arbitration against the 2002 

signatories. So Ms. Hill and her counsel were fully aware of 

the 2002 DRP. And as explained, XBS continued to 

occasionally refer to the 2002 DRP with both Ms. Hill and 

the district court as it litigated class certification issues. 
82 TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC

That’s about as sneaky as a toddler playing hide-and-seek.

Second, the metaphor implies the ambusher seeks some 

advantage by remaining silent. But I can conceive of no 

advantage XBS might have expected by not explicitly 

asserting its right to later arbitrate once that right ripened, 

and the majority offers none. Or, for that matter, what 

advantage XBS could expect by not mentioning the 2002 

DRP more often in opposing class certification. If anyone 

stood to gain a tactical advantage by intentionally ignoring 

the 2002 DRP it was Ms. Hill, because it forced XBS into a 

dilemma in the early stages of litigation. Either XBS would 

need to raise every imaginable merits defense against a class 

not yet defined even if those defenses were irrelevant and 

futile with respect to the only party then in the case—Ms. 

Hill—or else it would need to accept a nonzero risk that Ms. 

Hill could later beguile a court into thinking those defenses 

had been forfeited. The majority’s result today does much 

to encourage such gamesmanship in the future by rewarding 

Ms. Hill and punishing XBS.

Trying to make a similar point through another familiar 

metaphor, the majority sternly insists that it “will not reward 

XBS’s attempt to take a second bite from the apple” by 

permitting it to compel arbitration when there is a “strong 

inference that XBS wanted a judicial resolution on the 

merits.” Although variations of this argument bob up 

repeatedly in the majority opinion, this metaphor also 

quickly goes to seed, primarily because XBS never took a 

first bite at any absent class member’s apple: XBS never 

litigated any issue against absent class members, as opposed 

to Ms. Hill.

But the majority’s do-over concern falls flat however 

you slice it. Even indulging the majority’s fiction that XBS 
TIFFANY HILL V. XEROX BUSINESS SERVICES, LLC 83

was actually litigating against the class when it was really 

litigating against Ms. Hill, there still would only be one bite 

of the apple. The example the majority references—

litigation over whether Ms. Hill was a piece-rate worker—

drives home the point. Once that question was certified to 

the Washington Supreme Court in the litigation with Ms. 

Hill and authoritatively answered, it was not going to be 

“relitigated” by XBS against anyone, including absent class 

members. Whatever the Washington Supreme Court ruled 

on the piece-rate question would obviously be authoritative 

and binding precedent, including in any later arbitrations. 

Here again, the majority justifies its unwarranted extension 

of waiver by reference to a concern that, upon closer 

inspection, collapses. 

* * *

The majority today imposes a new duty on defendants to 

make certain arguments against class certification at that 

stage of the case or otherwise lose the ability to later compel 

arbitration once the right to do so matures. The majority 

characterizes this as waiver, but it is more accurately 

understood as a new forfeiture rule. XBS did nothing in this 

case to evince that it affirmatively intended to waive its right 

to arbitrate—it merely litigated against the named plaintiff 

Ms. Hill and opposed her attempt to certify a class. That 

should not be enough to intentionally waive a merits defense 

wholly inapplicable to the named plaintiff, so I must 

respectfully dissent.