Technology in Partnership, Inc. v. Rudin, 538 F. App'x 38

Plaintiff Technology in Partnership, Inc. (TIP) sued various Rudin defendants asserting claims governed by agreements that contained arbitration clauses.
The Rudins litigated in federal court for ~15 months before moving to compel arbitration; they raised arbitration after significant discovery and motion practice.
Prior to requesting arbitration, Rudins participated in two substantive motions to dismiss, took a key TIP witness deposition (Robert Baker), and sought/produced extensive discovery.
The district court (S.D.N.Y.) denied the Rudins’ motion to compel arbitration on the ground they had waived the right to arbitrate; the Rudins appealed that denial.
On appeal, the Rudins argued (1) the district court erred in finding waiver, and (2) the Second Circuit’s waiver doctrine conflicts with the Federal Arbitration Act and Supreme Court precedent (e.g., Concepcion).
The Second Circuit affirmed, concluding the Rudins waived arbitration and that the waiver doctrine is consistent with the FAA and Supreme Court precedent.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Rudins waived the right to arbitrate by litigating in federal court for 15 months and engaging in discovery	TIP: Rudins litigated, deposed key witness, and pursued extensive discovery despite knowledge of arbitration clause, causing prejudice	Rudins: Delay in invoking arbitration did not constitute waiver; arbitration should be enforced under the FAA	Court: Waiver found—factors (delay, amount of litigation, prejudice) show Rudins waived arbitration; district court affirmed
Whether Second Circuit waiver doctrine conflicts with the FAA and Supreme Court decisions (e.g., Concepcion)	TIP: Waiver doctrine is a general forfeiture rule, not a defense targeting arbitration specifically	Rudins: Concepcion shows a strong federal policy favoring arbitration; waiver doctrine is inconsistent with FAA §2 and Concepcion	Court: No conflict—waiver doctrine treats arbitration like other affirmative defenses and does not invalidate arbitration provisions on grounds unique to arbitration; Concepcion not controlling here

Crysen/Montenay Energy Co. v. Esselen Assocs., 226 F.3d 160 (2d Cir. 2000) (sets factors for arbitration-waiver analysis)
PPG Industries, Inc. v. Webster Auto Parts, Inc., 128 F.3d 103 (2d Cir. 1997) (arbitration waiver not lightly inferred; relevant factors)
Thyssen, Inc. v. Calypso Shipping Corp., S.A., 310 F.3d 102 (2d Cir. 2002) (focus on prejudice in waiver analysis)
La. Stadium & Exposition Dist. v. Merrill Lynch, Pierce, Fenner & Smith Inc., 626 F.3d 156 (2d Cir. 2010) (types of prejudice recognized)
S & R Co. of Kingston v. Latona Trucking, Inc., 159 F.3d 80 (2d Cir. 1998) (standard of review for waiver findings)
Cotton v. Slone, 4 F.3d 176 (2d Cir. 1993) (prejudice found where party uses discovery and motions unavailable in arbitration)
Schipani v. McLeod, 541 F.3d 158 (2d Cir. 2008) (arbitrability can be forfeited if not timely raised)
Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1 (U.S. 1983) (ambiguities concerning arbitrability resolved in favor of arbitration)
AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (U.S. 2011) (federal policy favoring enforcement of arbitration agreements; addressed state-law defenses to arbitration)