Having lost in the Ninth Circuit, Big Fish tried to invoke its arbitration clause and compel arbitration. The court says:
Churchill Downs waived its right to arbitration when it took its first bite of the apple and chewed thoroughly for over three years.
Ouch! The court says that the terms don’t unequivocally delegate the issue of waiver to the arbitrator, so the court must decide it. As to waiver, Churchill Downs took acts inconsistent with its putative right to arbitrate by litigating the case in district court. And Kater would be prejudiced because the litigation already cost her a lot more than arbitration would have.
