William Harris v. NPC International, Inc., 625 F. App'x 261

NPC International operated multiple Pizza Hut restaurants; five separate FLSA collective actions were filed in Jan 2013 by different groups of employees (servers, cooks, drivers, shift managers, customer service reps) asserting unpaid wages/overtime.
All five actions were assigned to the same judge and prosecuted by the same plaintiffs’ counsel; over 200 opt-in plaintiffs later joined.
NPC participated in litigation for ≈15 months (filing dispositive and non-dispositive motions, settlement negotiations, and attending a scheduling conference) but did not move to compel arbitration until April 2014.
Plaintiffs’ counsel submitted evidence of roughly $20,000 in litigation expenses incurred before NPC sought arbitration; dockets showed extensive activity (>370 entries) prior to arbitration assertion.
The district court found NPC waived its contractual right to arbitrate because its litigation conduct was completely inconsistent with reliance on arbitration and caused actual prejudice to plaintiffs; the court denied NPC’s motions to compel and to alter/reconsider.
The Sixth Circuit, reviewing de novo, affirmed the district court, applying precedent on waiver and collective-action considerations.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether NPC waived the right to compel arbitration by its conduct	NPC’s prolonged litigation conduct caused unnecessary expense and delay, so waiver occurred	NPC argued it did not act inconsistently with arbitration and delay was minimal because little discovery occurred	Court held NPC waived arbitration: its conduct was completely inconsistent and caused actual prejudice
Whether delay alone establishes actual prejudice	Plaintiffs: delay plus expenses suffice to show actual prejudice	NPC: delay without substantial discovery means minimal prejudice	Court: delay combined with incurred expenses (≈$20k) established actual prejudice
Whether NPC’s tactical motives (raising arbitration after unfavorable rulings) affect waiver analysis	Plaintiffs: timing shows deliberate tactic to gain advantage, supporting waiver	NPC: cited uncertainty in law (Reed Elsevier) as justification for delay	Court: rejected Reed Elsevier excuse; timing suggested tactical delay, weighing toward waiver
Whether waiver must be assessed individually for each opt‑in plaintiff in FLSA collective actions	Plaintiffs: collective nature and common allegations make litigation effects uniform; waiver can be assessed from original complaints	NPC: waiver should be measured from each opt‑in plaintiff’s join date	Court: waiver assessed from original complaints; individualized timing would undermine FLSA collective mechanism; affirmed aggregate assessment

Glazer v. Lehman Bros., 394 F.3d 444 (6th Cir. 2005) (strong presumption favoring enforcement of arbitration agreements; waiver is not to be lightly inferred)
Shy v. Navistar Int’l Corp., 781 F.3d 820 (6th Cir. 2015) (both inconsistency and actual prejudice required to find waiver; distinguished where pre-litigation conduct was not inconsistent)
Johnson Associates Corp. v. HL Operating Corp., 680 F.3d 713 (6th Cir. 2012) (delay plus litigation participation can establish waiver and actual prejudice)
Hurley v. Deutsche Bank Trust Co., 610 F.3d 334 (6th Cir. 2010) (extended participation in litigation and discovery supports waiver finding)
Reed Elsevier, Inc. v. Crockett, 734 F.3d 594 (6th Cir. 2013) (court, not arbitrator, decides gateway questions of classwide arbitration absent clear parties’ agreement otherwise)
Manasher v. NECC Telecom, [citation="310 F. App'x 804"] (6th Cir. 2009) (defendant’s year-long litigation participation waived right to compel arbitration; amended complaints did not revive the right)
O.J. Distributing, Inc. v. Hornell Brewing Co., Inc., 340 F.3d 345 (6th Cir. 2003) (actual prejudice can be found from defendant’s pre-litigation conduct even with a short delay)