intentional, and implicit waivers are possible, and a court makes a determination after concentrating on a the party's "litigation conduct to determine if its consistent with its reserved right to arbitrate the dispute." See id. at 233 (listing factors to determine consistency of a party's litigation conduct). In applying these principles, the court found no waiver. First, it concluded that the plaintiff's contention that BM's refusal to pay the requisite fees could not amount to an "implicit waiver by indifference" was meritless, as BM had a reasonable belief that the AAA was not the appropriate forum.

There was no clear agreement between the AAA and the parties to use its dispute resolution services, and such a difference of opinion was adequately resolved by the Law Division's order to compel arbitration. Second, the court reviewed BM's litigation conduct and found that it was not dilatory or in bad faith so as to exempt it from the right to arbitration, for reasons including but not limited to, the fact that BM did not delay in making an arbitration request in either occasion, and instead quickly filed motions to dismiss. Accordingly, the Appellate Division upheld the ruling of the Law Division and enforced the arbitration provision of the DRA against the plaintiffs. Subsequent Developments On April 29, 2016, the New Jersey Supreme Court accepted the plaintiffs' appeal. Related Practices Technology E-Commerce Litigation and Dispute Resolution Class Action Litigation and Arbitration Related Client Sector Technology, Telecommunications & Media Attorney Advertising. Copyright © 1996–2016 Holland & Knight LLP.

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