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?

Related documents

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