Waiver of Arbitration by Litigation Conduct: Seeking Merits Dismissal and Litigating Without Reserving Arbitration Forfeits the Right to Compel

1. Introduction

In Global Advantech Resources Limited v. Brown (5th Cir. May 27, 2026) (per curiam) (unpublished), the Fifth Circuit affirmed the Southern District of Texas’s denial of a late-filed motion to compel arbitration. The dispute arises from alleged misuse and disclosure of Global Advantech Resources Limited (“GAR”) confidential and proprietary information that GAR had provided to Alta Mesa Holdings, LP under a 2017 “Confidentiality and Non-Circumvention Agreement” (“the NDA”), which contained a London Court of International Arbitration (LCIA) clause.

GAR sued multiple individuals and entities for fraud-based claims, conspiracy, and trade-secret claims under the Defend Trade Secrets Act and Texas Uniform Trade Secrets Act. The “Brown Defendants” (Richard Brown, Snake River Oil & Gas, L.L.C., and Weiser-Brown Oil Company) were added later and spent substantial time litigating: moving to dismiss (including merits arguments), answering with many affirmative defenses (but not arbitration), engaging in discovery, and participating in scheduling extensions—then, more than two years into the case, moving to compel arbitration.

The key issue on appeal was whether the Brown Defendants waived any right to compel arbitration by litigating in a manner inconsistent with arbitration.

2. Summary of the Opinion

The Fifth Circuit AFFIRMED the denial of the motion to compel arbitration, concluding the record supported a finding that the Brown Defendants knowingly relinquished the right to arbitrate by acting inconsistently with that right—i.e., by substantially invoking the judicial process.

Although the district court provided almost no reasoning in its orders, the Fifth Circuit declined to remand for an explanation because its own detailed review of the record made the basis sufficiently clear: waiver by litigation conduct.

3. Analysis

3.1. Precedents Cited

A. Waiver standard after Morgan and Fifth Circuit implementation

  • Morgan v. Sundance, Inc., 596 U.S. 411 (2022): The court anchors waiver in ordinary contract principles—“the intentional relinquishment or abandonment of a known right”—and frames the inquiry as whether the party acted inconsistently with arbitration. This case’s analysis tracks Morgan by focusing on inconsistency/intentional relinquishment, not a special pro-arbitration waiver test.
  • Garcia v. Fuentes Rest. Mgmt. Servs. Inc., 141 F.4th 671 (5th Cir. 2025): Provides the Fifth Circuit’s current articulation: waiver exists where the movant “knowingly relinquish[ed] the right to arbitrate by acting inconsistently with that right,” and “substantially invoked the judicial process” is one way to show that inconsistency. The court also takes from Garcia that waiver is fact-intensive, totality-of-circumstances, and that delay remains relevant objectively.
  • Subway Equip. Leasing Corp. v. Forte, 169 F.3d 324 (5th Cir. 1999): Cited for de novo review of whether conduct amounts to waiver.
  • Nicholas v. KBR, Inc., 565 F.3d 904 (5th Cir. 2009): Reinforces the basic premise that arbitration rights, like other contract rights, can be waived.

B. “Substantial invocation” and inconsistent litigation conduct

  • In re Mirant Corp., 613 F.3d 584 (5th Cir. 2010): A central comparator. The panel cites Mirant for the “overt act in court” formulation and for the proposition that seeking dismissal with prejudice before moving to compel arbitration can support waiver. The court also distinguishes scenarios where a merits motion is filed only as an alternative to arbitration (which can mitigate waiver).
  • Walker v. J.C. Bradford & Co., 938 F.2d 575 (5th Cir. 1991): Supplies the Fifth Circuit’s policy-laden admonition against switching “judicial horses in midstream” and emphasizes arbitration should be decided at the outset, not after substantial court use.
  • Janvey v. Alguire, 847 F.3d 231 (5th Cir. 2017): Used to underscore that parties should not take advantage of federal discovery and then seek private resolution—discovery conduct can contribute to waiver, particularly where arbitration rules might limit discovery.
  • Vine v. PLS Fin. Servs., Inc., 689 F. App’x 800 (5th Cir. 2017) and Int’l Energy Ventures Mgmt., L.L.C. v. United Energy Grp., Ltd., 999 F.3d 257 (5th Cir. 2021): Cited to support that waiver-by-litigation-conduct is for the court (not the arbitrator) to decide on this record.

C. Cases the Brown Defendants invoked—distinguished because arbitration was asserted early or preserved

The opinion distinguishes the Brown Defendants’ cited authority largely on a single axis: in those cases, the party seeking arbitration either (i) raised arbitration promptly, (ii) asked the court to compel or stay for arbitration early, or (iii) preserved arbitration in the answer.

  • KeyTrade USA, Inc. v. AIN Temouchent M/V, 404 F.3d 891 (5th Cir. 2005): Emphasized because arbitration was invoked in the answer and the summary judgment motion was filed concurrently with the motion to compel.
  • Williams v. Cigna Fin. Advisors, Inc., 56 F.3d 656 (5th Cir. 1995): Emphasized because the answer came after a stay motion pending arbitration.
  • Tenneco Resins, Inc. v. Davy Int’l, AG, 770 F.2d 416 (5th Cir. 1985): Repeatedly emphasized because the answer itself asserted arbitration as a defense.

D. Personal jurisdiction does not prevent simultaneous arbitration practice

  • Hines v. Stamos, 111 F.4th 551 (5th Cir. 2024): The panel relies on Hines to reject any implied excuse that jurisdictional objections prevented an arbitration motion. Defendants can file simultaneous motions to dismiss for lack of personal jurisdiction and, alternatively, to compel arbitration, and courts must resolve jurisdiction first.

E. Interlocutory appeals, stays, and “frivolous” certification tools

  • Coinbase, Inc. v. Bielski, 599 U.S. 736 (2023): Cited for the rule that denial of a motion to compel arbitration is immediately appealable and that district courts must generally stay proceedings pending appeal, while noting appellate “tools” exist to deter frivolous appeals and district courts may certify frivolousness.
  • BancPass, Inc. v. Highway Toll Admin., L.L.C., 863 F.3d 391 (5th Cir. 2017); United States v. Dunbar, 611 F.2d 985 (5th Cir. 1980); Apostol v. Gallion, 870 F.2d 1335 (7th Cir. 1989); Arthur Andersen LLP v. Carlisle, 556 U.S. 624 (2009); Behrens v. Pelletier, 516 U.S. 299 (1996): These authorities frame the mechanism by which a district court can certify an interlocutory appeal as frivolous/dilatory and retain jurisdiction—context that matters here because the district court did so (though the Fifth Circuit ultimately affirmed on waiver).

F. Explaining orders and enabling appellate review

  • The panel notes Rule 52(a)(3) permits rulings without findings, but cites Heller v. Namer, 666 F.2d 905 (5th Cir. 1982), Liberty Mut. Ins. Co. v. Brown, 86 F. App’x 718 (5th Cir. 2004), Myers v. Gulf Oil Corp., 731 F.2d 281 (5th Cir. 1984), and In re Media Matters for Am., 143 F.4th 631 (5th Cir. 2025) to stress that some explanation is often necessary for meaningful review.

G. Estoppel framework (not decisive here, but in the standard of review)

  • Newman v. Plains All Am. Pipeline, L.P., 23 F.4th 393 (5th Cir. 2022); Cure & Assocs., P.C. v. LPL Fin. L.L.C., 118 F.4th 663 (5th Cir. 2024); Bufkin Enters., L.L.C. v. Indian Harbor Ins. Co., 96 F.4th 726 (5th Cir. 2024); Grigson v. Creative Artists Agency, L.L.C., 210 F.3d 524 (5th Cir. 2000): These are cited for the abuse-of-discretion review applicable to “intertwined-claims estoppel.” The panel does not ultimately rely on estoppel to decide the appeal; waiver is dispositive.

3.2. Legal Reasoning

The court’s reasoning is an application of post-Morgan waiver principles to a concrete litigation timeline:

  1. Knowledge of the right was obvious. The NDA (three pages) and its arbitration clause were available “from the outset,” and the arbitration clause was not buried. The Brown Defendants’ claim that the NDA’s “role” came into focus only after a corporate-representative deposition was treated as unpersuasive.
  2. Inconsistent conduct began early and persisted. The Brown Defendants filed two rounds of Rule 12(b) motions—including merits attacks (limitations, standing, economic loss doctrine)—yet did not seek arbitration or even reserve it. They sought dismissal with prejudice, which the panel treats as particularly inconsistent with an intent to arbitrate (echoing Mirant).
  3. Failure to preserve arbitration in the Answer mattered. The Answer preserved personal jurisdiction but did not invoke arbitration among 32 affirmative defenses, and did not “call[] on the district court to refer the case to arbitration” (contrasting KeyTrade USA, Inc. v. AIN Temouchent M/V and Tenneco Resins, Inc. v. Davy Int’l, AG).
  4. Jurisdictional objections were not an excuse. The panel emphasizes that defendants frequently file simultaneous jurisdiction and arbitration motions (Hines v. Stamos), and doing so does not necessarily consent to jurisdiction. Thus, the choice not to pursue arbitration while contesting jurisdiction was treated as a strategic election to litigate.
  5. Merits discovery and trial preparation reinforced waiver. The Brown Defendants conducted discovery (including a corporate-representative deposition) and joined in deadline extensions “to prepare for a January 2026 jury trial,” before first asserting arbitration in August 2025. The court invokes Janvey v. Alguire to express concern about using federal discovery and later pivoting to arbitration.
  6. Delay remains relevant even without a prejudice inquiry. The panel expressly recognizes that after Morgan courts do not “search for prejudice due to delay,” but delay still bears on whether the party substantially invoked litigation. It treats the multi-year progression and resource consumption as supporting waiver.

On this totality, the Fifth Circuit concludes the Brown Defendants “cannot now regain a right that they, through their litigation conduct, have relinquished.”

3.3. Impact

A. Practical rule for defendants: raise arbitration early—or lose it

This opinion strengthens a clear, practice-oriented message: a defendant who wants arbitration must affirmatively and promptly pursue it, or at minimum preserve it explicitly (e.g., in the answer and early motion practice). Filing motions that seek merits dismissal—especially dismissal with prejudice— and litigating discovery and scheduling as if headed to trial will support waiver.

B. International arbitration is not insulated from waiver

Even though the clause referenced LCIA arbitration and the motion cited “the Convention,” the waiver analysis proceeded under ordinary waiver principles: international flavor does not excuse inconsistent litigation conduct, and parties cannot treat arbitration as a late-stage “plan B.”

C. Incentives around interlocutory appeals after Coinbase, Inc. v. Bielski

The case also illustrates the post-Coinbase ecosystem: denial of arbitration is immediately appealable, but district courts may certify an appeal as frivolous/dilatory and continue proceedings. While the panel’s merits holding is waiver, the background signals that litigants should expect closer scrutiny of late-filed arbitration motions and the appeals they generate.

D. Institutional signal to district courts: provide at least minimal reasoning

The Fifth Circuit criticizes the absence of explanation in the district court’s arbitration and frivolous-certification orders and notes that lack of reasoning can warrant remand. Although the panel worked around the deficiency here, the opinion encourages district courts to include concise reasoning to facilitate review—especially where multiple grounds are argued.

4. Complex Concepts Simplified

  • Waiver (in this context): Losing a contractual right (arbitration) by choosing conduct inconsistent with that right—e.g., acting like you want a court judgment instead.
  • “Substantially invoked the judicial process”: Taking significant steps in court that show you’re trying to win there—filing dispositive motions, seeking dismissal with prejudice, engaging in discovery, and preparing for trial—rather than insisting on arbitration.
  • Dismissal “with prejudice”: A merits-ending dismissal; it signals a request for a final court judgment rather than a shift to arbitration. (By contrast, a personal-jurisdiction dismissal should be without prejudice.)
  • Interlocutory appeal (arbitration): A special immediate appeal allowed when arbitration is denied (9 U.S.C. § 16(a)), rather than waiting for final judgment.
  • “Frivolous” certification: A district court finding that an interlocutory appeal is meritless and dilatory, allowing proceedings to continue despite the appeal (discussed through BancPass, Inc. v. Highway Toll Admin., L.L.C. and Coinbase, Inc. v. Bielski).
  • Intertwined-claims estoppel: An equitable doctrine sometimes used to let non-signatories enforce an arbitration agreement when claims are tightly connected to a contract with an arbitration clause; here, it is referenced mainly for standard-of-review context, not as the deciding doctrine.

5. Conclusion

The Fifth Circuit’s decision in Global Advantech v. Brown reinforces a concrete waiver principle: a party that wants arbitration must pursue it consistently and early. By repeatedly seeking dismissal with prejudice on merits grounds, omitting arbitration from two Rule 12(b) motions and from an Answer packed with affirmative defenses, participating in merits discovery, and proceeding toward a jury trial, the Brown Defendants acted inconsistently with arbitration and waived it.

Beyond the immediate outcome, the opinion is a cautionary roadmap for litigation strategy in arbitration-eligible disputes—particularly in federal court practice where motions, answers, and discovery choices can collectively constitute an intentional relinquishment of arbitration rights.