In 2016, Robert Kimmel filed a lawsuit in Florida state court to recover his investment in a venture capital fund. The parties litigated the case in court for more than a year. Then, after the fund changed its lawyers, it sought to move the case from court to arbitration. The Florida trial court and intermediate court of appeals held that, by waiting so long, the fund had waived its right to invoke an arbitration clause in the parties’ underlying agreement.
In 2019, the fund filed a petition for certiorari in the U.S. Supreme Court, arguing that the lower courts did not adequately examine the arbitrability of each claim and that the Federal Arbitration Act requires a showing of prejudice in order to establish a waiver of arbitration. Public Citizen joined as co-counsel for Mr. Kimmel in opposing the petition. The brief in opposition argued that the Florida courts’ decisions were consistent with Supreme Court and other case law, that the fund failed to preserve the argument that the Federal Arbitration Act provides the substantive standard for waiver analysis, and that, in any event, Mr. Kimmel adequately demonstrated prejudice. The Supreme Court denied the petition.