Defeating an arbitration or forum-selection motion: keeping the case in court

A defendant has moved to compel arbitration or to enforce a forum-selection clause. The federal and state policies favoring enforcement are strong, and the moving party comes in with structural advantages: the FAA, Atlantic Marine, and a Supreme Court line of cases that resolve ambiguities in favor of arbitration. But these motions are not unbeatable. The plaintiff can win by attacking formation, scope, unconscionability, waiver, statutory exemptions, or — for arbitration specifically — the delegation clause itself.

This guide walks through the defenses that actually work, in the order a court typically considers them. The strongest responses combine multiple lines of attack: even when no single defense is dispositive, a coherent record of formation, scope, and unconscionability problems can move the court to deny enforcement.

Start with formation

The threshold question for both arbitration and forum-selection clauses is whether a valid contract exists between these parties. Without contract formation, there is nothing to enforce.

The response should attack formation if any of the standard contract problems applies. Was the clause buried in fine print without reasonable notice? Did the plaintiff actually click or sign? Was the contract presented on a take-it-or-leave-it basis without meaningful opportunity to read or negotiate? Was the consideration adequate? For employment cases, did continued employment or a separate inducement actually function as consideration under state law?

Online and click-through agreements are particularly vulnerable. Browsewrap agreements (terms posted on a site without affirmative acceptance) routinely fail the assent requirement. Even clickwrap agreements can be defeated when the terms were not reasonably conspicuous, when the user was not required to scroll through them, or when the click did not unambiguously signal acceptance of the arbitration or forum-selection terms specifically.

The factual record for formation comes from outside the complaint: deposition testimony, screenshots of the website at the time of contracting, the plaintiff's own declaration about what was presented and how. The response should attach the evidence and frame the formation issue as a fact dispute the court cannot resolve on the motion.

Scope arguments

Even when a clause is validly formed, it has to reach the claims in the complaint. The scope analysis is where the plaintiff can win without attacking the agreement itself.

Narrow clauses cover narrow disputes. A clause that covers "disputes over the interpretation or performance of this agreement" does not necessarily reach tort claims that exist independently of the contract — fraud in the inducement, intentional infliction of emotional distress, defamation, violation of statute. Broadly drafted clauses ("any claim arising out of or relating to this agreement") are harder to defeat, but they too have limits when the claim involves conduct only tangentially connected to the contract.

The response should trace each claim back to the contractual relationship and ask whether the clause as written actually covers it. Statutory claims may carry their own carve-outs. Sexual-assault and harassment claims, for example, are now exempt from forced arbitration under the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021. Some federal whistleblower statutes contain anti-waiver provisions that prevent arbitration of certain claims.

For forum-selection clauses, scope arguments often turn on whether the clause is mandatory or permissive. A clause that says "the parties may bring suit in the courts of Delaware" is permissive and does not exclude other forums. A clause that says "the parties shall bring suit exclusively in the courts of Delaware" is mandatory. The difference can be the entire motion.

Unconscionability

Unconscionability is the most fact-intensive defense and the most variable across jurisdictions.

Procedural unconscionability looks at how the clause was presented. Adhesion contract? Take-it-or-leave-it? Fine print? Bargaining-power disparity? Hidden in a long agreement? Presented at the moment of a transaction the plaintiff could not refuse?

Substantive unconscionability looks at what the clause does. Limits remedies the law would otherwise provide. Shifts costs of arbitration to the consumer. Restricts discovery to levels that make the claim unwinnable. Forbids class actions when class treatment is the only economically viable form of relief. Designates a remote or expensive forum.

Most jurisdictions require both procedural and substantive unconscionability on a sliding scale. California is the most aggressive, allowing relatively modest substantive unconscionability to defeat a clause that is highly procedurally unconscionable. Conservative jurisdictions require near-equal showings on both prongs.

The Supreme Court's preemption decisions (AT&T Mobility v. Concepcion, 563 U.S. 333 (2011); American Express Co. v. Italian Colors Restaurant, 570 U.S. 228 (2013)) have narrowed the substantive-unconscionability landscape for class-action waivers. But unconscionability remains a recognized defense, and the FAA's saving clause preserves general contract defenses that do not target arbitration agreements specifically.

Waiver

The defendant can lose the right to compel arbitration through conduct. Filing an answer, conducting substantial discovery, moving on the merits, or letting the case proceed for months while preserving the arbitration argument as a fallback — any of these can support a waiver argument.

The waiver standard varies by circuit. After Morgan v. Sundance, Inc., 596 U.S. 411 (2022), federal courts no longer require a showing of prejudice; conduct inconsistent with the right to arbitrate is enough. State courts may still require prejudice under their own waiver doctrine.

The response should document the defendant's litigation conduct in detail: every motion filed, every discovery request served, every deposition taken, every continuance requested. A timeline that shows the defendant participating in the case as if arbitration were not an option supports waiver.

Statutory carve-outs

Federal and state statutes sometimes exempt particular claims from arbitration or forum-selection clauses.

The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 lets plaintiffs in sexual-assault and sexual-harassment cases invalidate pre-dispute arbitration agreements at their option.

The Federal Arbitration Act's section 1 exempts "contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce." Transportation workers — including delivery drivers under some circumstances — fall within the exemption. New Prime Inc. v. Oliveira, 586 U.S. 105 (2019).

State consumer-protection statutes, civil-rights laws, and whistleblower statutes sometimes carry anti-waiver provisions. The plaintiff should check the specific statute under which each claim is brought.

Delegation and the attack on the delegation clause

When the arbitration clause contains a delegation provision that sends arbitrability questions to the arbitrator, the plaintiff's substantive defenses (scope, unconscionability) are stripped from the court and given to the arbitrator. The only way around a delegation clause is to attack the delegation clause itself.

That attack is narrow but possible. Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63 (2010), requires the plaintiff to challenge the delegation provision specifically, not the broader arbitration clause. If the delegation provision was procured by fraud directed at the delegation clause itself, or if the delegation clause is unconscionable on its face, the court hears those arguments before sending anything to the arbitrator.

The response should isolate the delegation clause when it exists, ask whether it is clear and unmistakable, and attack any defect specific to the delegation. If the delegation clause is buried, ambiguous, or applies only to certain disputes, the court retains arbitrability for everything else.

Non-signatory arguments

The defendant may be a non-signatory to the contract trying to enforce the arbitration or forum-selection clause anyway. Equitable estoppel, agency, third-party beneficiary, and corporate-veil theories can sometimes support enforcement by a non-signatory. They can also fail.

The response should ask whether the defendant is actually a party to the contract. If not, the burden of establishing a doctrine that pulls the defendant into the clause shifts to the defendant. Each theory has specific elements that must be pleaded and proved.

For plaintiffs who are non-signatories being pulled into arbitration, the doctrine is even harder for the defendant. The plaintiff did not agree to anything. Equitable estoppel against a non-signatory plaintiff requires the plaintiff to be claiming the benefit of the contract — and even then, courts vary on whether estoppel applies.

How to structure the response

The response should open with the framework: the FAA and Atlantic Marine create a presumption in favor of enforcement, but the presumption does not eliminate the requirement that the agreement actually be valid, applicable, and enforceable.

Then attack formation. If the contract was not validly formed, nothing else matters. This is the cleanest defense when the facts support it.

Then address scope. Identify each claim, trace it to or from the contractual relationship, and explain why the clause does not reach it.

Then unconscionability. Walk procedural and substantive unconscionability methodically. Quote the clause. Identify the specific provisions that limit remedies, shift costs, or impose hardship. Cite controlling state-law authority on the unconscionability standard.

Then waiver, if applicable. Timeline. Conduct. Inconsistent with arbitration.

Then statutory carve-outs and any non-signatory issues.

The brief should anticipate the delegation clause if one exists and either attack it specifically or argue that the issues raised do not fall within its scope.

Common pitfalls

Treating the response as a substantive merits brief. The motion is about enforcement of a contractual choice. The plaintiff's underlying claims are not at issue here.

Attacking the broader contract when only the arbitration or forum-selection clause is what matters. Under Prima Paint Corp. v. Flood & Conklin Manufacturing Co., 388 U.S. 395 (1967), challenges to the broader contract go to the arbitrator; only challenges directed at the clause itself stay in court. The response should be focused.

Ignoring the delegation clause. A motion that addresses scope and unconscionability without first addressing the delegation provision invites the court to send those issues to the arbitrator without considering them.

Failing to attach a factual record. Formation, scope, unconscionability, and waiver are all fact-laden. The response should attach declarations, screenshots, deposition excerpts, and the contract itself.

Overlooking statutory exemptions. The FAA's section 1 exemption, the EFAA of 2021, and state-law carve-outs can be dispositive. The response should check for them explicitly.

The bottom line

Arbitration and forum-selection motions are defeatable, but not on policy grounds. The Supreme Court's preference for enforcement is settled. The defenses that work are doctrinal: formation, scope, unconscionability, waiver, statutory carve-outs, and (for arbitration) attack on the delegation clause. The response brief should isolate the strongest defenses available on the facts, attach the supporting record, and structure the argument around the order in which courts evaluate them.

A successful response keeps the case in court. An unsuccessful one usually identifies which defenses to press at the next stage — at the arbitrator, in the agreed forum, or on appeal.