Document type: Checklist Practice area: Litigation—Arbitration Jurisdiction: United States (federal) Last reviewed: 5 September 2026

Work the parts in order. The sequence is not stylistic—courts answer these questions in this order, and briefing them out of order costs credibility and sometimes the motion.

Part 1—Week one: collect and assess

  • Collect every agreement between the parties, not just the one attached to the complaint.
  • Master agreements and amendments.
  • Statements of work, order forms, purchase orders, addenda.
  • Terms of service, with the full version history and acceptance records.
  • Employment agreements, offer letters, handbooks, equity award agreements.
  • Settlement agreements and side letters.
  • NDAs and confidentiality agreements.
  • Build a table: agreement, date, signatories, dispute resolution provision, scope language, integration clause, and whether it addresses earlier agreements.
  • Identify the claims in the complaint and map each to the agreement it arises under.
  • Diary the answer deadline and the intended motion date.

Part 2—Waiver risk (do this before anything else)

After Morgan v. Sundance, Inc., 596 U.S. 411 (2022), no prejudice showing is required.

  • Has anything been filed on the merits?
  • Has substantive discovery been served or answered?
  • Has a Rule 26(f) conference occurred without reserving the arbitration right?
  • Have counterclaims been asserted?
  • Was the case removed and then litigated?
  • If the answer to any is yes, assess the waiver exposure candidly and consider whether to move anyway.
  • Assert the arbitration right expressly in the first responsive filing.
  • Move to compel within 30–60 days of service.

Part 3—The sequence of questions

Question 1: Which agreement governs?

  • Do two or more agreements point to different forums?
  • If yes, recognize that a court decides which controls, and no delegation clause reaches it—Coinbase, Inc. v. Suski, 602 U.S. 143 (2024).
  • Analyze integration clauses, subject-matter scope, and chronology.
  • Brief this first.

Question 2: Does the FAA apply?

Question 3: Was an agreement formed?

Question 4: Is arbitrability delegated?

Question 5: Scope (only if not delegated).

  • Is the clause broad ("arising out of or relating to") or narrow ("arising under")?
  • Do the claims—including tort and statutory claims—fall inside?
  • Do any carve-outs apply?

Question 6: Procedural questions.

Part 4—The formation record

For a signed agreement:

  • The executed original or a certified copy.
  • A declaration from someone with personal knowledge of execution.
  • Signature authority evidence if contested.

For online terms—the section that decides these cases:

  • The exact version of the terms in effect on the acceptance date, with the internal version identifier or hash.
  • A rendering of the interface as it appeared that day, from the code repository or design system—not today's screen.
  • The acceptance log entry: user identifier, timestamp, IP address, terms version.
  • A declaration from an engineer or product owner explaining the flow, the logging, and the retention policy.
  • For each amendment: the notice given, how it was delivered, and the acceptance record.
  • Confirm the declarant can testify about this user on that date, not about the system generally.

For non-signatories:

  • Identify the theory: agency, estoppel, third-party beneficiary, alter ego, incorporation by reference, assumption.
  • Assemble the facts supporting it.
  • Confirm whether the clause names affiliates and agents as permitted enforcers.

Part 5—Filing the motion

  • Confirm subject matter jurisdiction; look-through is available for § 4 petitions under Vaden v. Discover Bank, 556 U.S. 49 (2009).
  • Lead with the agreement-hierarchy argument if more than one agreement exists.
  • Plead delegation as a complete answer where the clause supports it.
  • Address waiver affirmatively rather than waiting for the opposition.
  • Request a stay under § 3—mandatory on request after Smith v. Spizzirri, 601 U.S. 472 (2024).
  • Include the stay request in the proposed order.
  • Do not request dismissal; a stayed case preserves federal jurisdiction for later confirmation given Badgerow v. Walters, 596 U.S. 1 (2022).
  • Attach the formation record as exhibits to a declaration, not as attorney argument.
  • Propose a narrow scope for any formation discovery, in the motion itself.

Part 6—Opposing a motion to compel

  • If there is a delegation clause, aim the challenge at the delegation clause specifically—Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63 (2010). A challenge to the agreement as a whole goes to the arbitrator.
  • Identify any second agreement pointing to a different forum—the strongest available argument when it exists.
  • Attack formation: conspicuousness of notice, unambiguity of assent, whether the version presented was the version accepted, whether amendment notice was adequate.
  • Assess the § 1 exemption for any transportation worker.
  • Assess the EFAA for sexual assault and harassment claims.
  • Build a waiver timeline of the movant's litigation conduct.
  • If arbitrability is not delegated, brief scope.
  • Brief unconscionability with both prongs—procedural (adhesion, surprise, inconspicuous terms) and substantive (one-sided carve-outs, prohibitive costs, shortened limitations, remedy limitations, confidentiality that hides similar claims).
  • Request formation discovery if the record is thin, with a specific proposed scope.
  • Recognize the appellate asymmetry: if you lose, review is generally unavailable until after the award.

Part 7—Appellate posture

Under 9 U.S.C. § 16:

  • An order denying a motion to compel is immediately appealable.
  • An order granting one generally is not; § 1292(b) certification is the only route.
  • District court proceedings are stayed during an appeal from a denial—Coinbase, Inc. v. Bielski, 599 U.S. 736 (2023).
  • Consult appellate counsel before filing where exposure is large; the motion is the first brief in a likely appeal.
  • Calendar the notice of appeal deadline from entry of the order.

Part 8—Should you compel at all?

  • What does arbitration get the client: confidentiality, no class exposure, cost, speed, decisionmaker expertise?
  • What does it cost: no dispositive motions, no meaningful appeal, arbitrator fees, no precedent?
  • In consumer or employment matters, who pays the arbitrator's fees, and what is the exposure across many claimants?
  • Is there a clean dispositive defense a judge would decide on the papers?
  • Does the client need a published precedent?
  • Is the clause genuinely enforceable, or would a loss produce a decision every future plaintiff cites?
  • Is the court faster than constituting a panel?
  • Write the answer down before filing.

Part 9—Annual clause review

  • Does every standard agreement state whether arbitrability is delegated?
  • Does every addendum, SOW, order form, amendment, and settlement template contain an agreement-hierarchy sentence?
  • Is the class waiver findable in the arbitration section, with a severance provision?
  • Is there an FAA-applicability fallback to a named state arbitration statute?
  • Do consumer and employment clauses carry the fairness terms: drafter pays fees, full statutory remedies, standard limitations period, convenient venue, reasonable discovery, written reasoned award, meaningful opt-out?
  • Does the clause name affiliates, successors, and agents as permitted enforcers?
  • Are carve-outs mutual and limited to specified relief and subject matter?
  • Is the formation-evidence package current for every terms version?
  • Have this year's decisions required a template change?
  • Has someone read the clause end to end in the last twelve months?

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This checklist is general information, not legal advice, and does not create an attorney-client relationship.