8th Circuit rules a district court cannot proceed with merits discovery or trial prep while…
BSI Group LLC v. Solid Financial Technologies
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8th Circuit rules a district court cannot proceed with merits discovery or trial prep while a pending arbitration agreement dispute is unresolved under the Federal Arbitration Act.
Why it matters
The Eighth Circuit reversed a district court order that allowed merits discovery and trial preparation to proceed at the same time as a jury trial on whether the parties had agreed to arbitrate their dispute. The court held that the Federal Arbitration Act requires the arbitrability question to be resolved quickly and without delay, before merits proceedings move forward. Allowing parallel merits activity defeats the core purpose of arbitration, which is to resolve disputes efficiently and outside of court.
Who it affects
- This ruling directly affects businesses
- Quickly resolve arbitrability disputes
What happens next
Current
Decision issued Jul 22, 2026
Published opinion
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Parties can ask the same court to reconsider. Then: possible supreme court petition.
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- Decision issued Jul 22, 2026Published opinion
- Possible rehearingParties can ask the same court to reconsider.
- Possible Supreme Court petitionThe Supreme Court takes only a small share of petitions.
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Jul 22, 2026 · Published opinion
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DEEPER READ
This case arose after the Eighth Circuit had previously sent the case back to a district court in Arkansas for a narrow jury trial on one question: whether the plaintiffs had agreed to be bound by an arbitration clause through a website pop-up. On remand, the district court issued a scheduling order that required merits discovery and arbitrability discovery to happen at the same time, and it also set a merits trial to begin immediately after the jury decided the arbitrability question. Solid Financial Technologies asked the district court to put all merits-related deadlines on hold until the arbitrability question was settled. The district court refused, and Solid appealed. The Eighth Circuit first addressed whether Solid had waived its right to arbitration by participating in the district court's scheduling process. The court said no. Solid had moved to compel arbitration before even filing an answer, then moved to stay merits proceedings just six days after the scheduling order was issued. Simply complying with a judge's instruction to jointly propose new deadlines did not amount to substantially invoking the litigation process, which is the standard required to find a waiver. On the main legal question, the court interpreted the Federal Arbitration Act's requirement that a court 'proceed summarily to the trial' on whether an arbitration agreement exists. Using the ordinary dictionary meaning of 'summarily,' the court concluded that Congress intended this threshold question to be resolved quickly and without delay, before any merits activity proceeds. The court agreed with the Ninth and Tenth Circuits that this word carries a meaning of speed and promptness. The court explained that deciding arbitrability is like deciding which forum is the right one for a dispute. Until that is settled, requiring parties to engage in merits discovery and trial preparation wastes resources and undermines the efficiency benefits that arbitration is supposed to provide. The Supreme Court has recognized that Congress intended the Arbitration Act to move parties into arbitration as quickly and easily as possible, and allowing parallel merits proceedings contradicts that intent. The Eighth Circuit reversed the district court's denial of the stay and sent the case back for further proceedings consistent with its ruling. The opinion does not reflect any dissent from the three-judge panel.
CITATION AND RECORD
Record source: CourtListener
United States Court of Appeals For the Eighth Circuit ___________________________ No. 25-1302 ___________________________ BSI Group LLC; International Business Solutions Group, LLC Plaintiffs - Appellees v. Ezbanc Corp; Evolve Bank & Trust Defendants Solid Financial Technologies, Inc. Defendant - Appellant ____________ Appeal from United States District Court for the Eastern District of Arkansas - Northern ____________ Submitted: June 11, 2026 Filed: July 22, 2026 ____________ Before COLLOTON, Chief Judge, ERICKSON and GRASZ, Circuit Judges. ____________ ERICKSON, Circuit Judge. This Court previously reversed the district court’s denial of Defendants’ motions to compel arbitration and remanded “for trial on the narrow question of whether the ‘pop-up’ and/or other aspects of EZBanc’s website show that Plaintiffs agreed to be bound by the terms in the Evolve Agreement.” BSI Group LLC v. EZBanc Corp, 122 F.4th 712, 717 (8th Cir. 2024). Upon remand, the district court entered a scheduling order that required (1) discovery on arbitrability and merits to proceed in tandem, (2) the filing and consideration of dispositive motions to occur prior to the jury trial on arbitrability, and (3) a trial on the merits to begin immediately if the jury determines the parties did not agree to arbitration. Solid Financial Technologies, Inc. (“Solid”) brought a motion to stay all pretrial deadlines related to the merits of the case and the merits trial date pending the resolution of the motion to compel arbitration. The district court denied the motion to stay, and Solid appealed. We reverse and remand. The denial of a motion to stay all proceedings pending arbitration is reviewed de novo. See Breadeaux’s Pisa, LLC v. Beckman Bros. Ltd., 83 F.4th 1113, 1116 (8th Cir. 2023) (applying de novo review to a motion to stay responding to merits discovery requests while a motion to compel arbitration was pending). BSI Group LLC and International Business Solutions Group, LLC (collectively “BSI”) assert that the standard of review should be abuse of discretion, but they cite no cases regarding discovery or pretrial management orders in the context of an unresolved dispute regarding arbitrability. We will review de novo the district court’s denial of the motion to stay. Id. In any event, an error of law is an abuse of discretion, so the result here is the same under either standard of review. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990). BSI claims we should not reach the merits of the appeal because Solid has allegedly waived its right to arbitration. While Solid’s motion to stay all merits- related activity was pending, the district court sent an e-mail to the parties directing them to jointly propose new pretrial deadlines for the arbitrability question and the underlying merits of the case. BSI claims that because Solid complied with the district court’s instructions, it has waived its right to arbitrate. A party waives its right to arbitration if it (1) knew of this right and (2) acted inconsistently with it. In re Pawn Am. Consumer Data Breach Litig., 108 F.4th 610, -2- 614 (8th Cir. 2024) (citations omitted). A party acts inconsistently with its right to arbitration when it “substantially invoke[es] the litigation machinery rather than promptly seek[ing] arbitration.” Id. (quoting McCoy v. Walmart, Inc., 13 F.4th 702, 703 (8th Cir. 2021)). Filing a motion to dismiss on the merits substantially invokes the litigation machinery. Lackie Drug Store, Inc. v. OptumRx, Inc., 143 F.4th 985, 994 (8th Cir. 2025); In re Pawn Am. Consumer Data Breach Litig., 108 F.4th at 615. To preserve the arbitration right, a defendant must do “all it could reasonably have been expected to do to make the earliest feasible determination to invoke its arbitration rights.” Lackie Drug, 143 F.4th at 994 (quoting Lewallen v. Green Tree Servicing, L.L.C., 487 F.3d 1085, 1091 (8th Cir. 2007)) (internal quotation marks omitted). In this case, before it filed an answer, Solid brought a motion to compel arbitration. After this Court remanded the case to the district court for a jury trial solely on the issue of whether the parties agreed to be bound by the terms in the Evolve contract, the district court issued a scheduling order that included deadlines regarding the underlying merits of the case. Six days later, Solid again promptly protected its right to arbitration by filing a motion to stay all deadlines related to the merits of the case. Solid never filed a motion to dismiss on the merits. Solid’s compliance with the district court’s direction to jointly propose new deadlines does not constitute substantially invoking the litigation machinery. Cf. Lackie Drug, 143 F.4th at 994 (filing a motion to dismiss on the merits); In re Pawn Am. Consumer Data Breach Litig., 108 F.4th at 615 (same). At every stage in this litigation, Solid has quickly invoked its right to arbitration. There has been no waiver. We now turn to the crux of this appeal. Under the Arbitration Act, if there is a dispute over whether an arbitration agreement exists between the parties, “the court shall proceed summarily to the trial thereof.” 9 U.S.C. § 4. The statute does not define the term “summarily.” When interpreting an undefined term in a statute, we give the word its ordinary meaning. Hennepin Cnty. v. Fed. Nat’l Mortg. Ass’n, 742 -3- F.3d 818, 821 (8th Cir. 2014) (citations omitted). “Summarily” means “in a summary manner or form,” and “summary” means “done or occurring without delay or formality: quickly executed.” Summarily, Merriam-Webster’s Unabridged Dictionary, available at https://unabridged.merriam- webster.com/unabridged/summarily (last visited June 29, 2026); summary, id., available at https://unabridged.merriam-webster.com/unabridged/summary (last visited June 29, 2026). Applying this plain meaning to the statute, other circuits have concluded that the Arbitration Act requires the trial on whether the parties agreed to arbitrate to occur without delay or quickly. See Hansen v. LMB Mortg. Servs., Inc., 1 F.4th 667, 672 (9th Cir. 2021) (stating “summarily” means “without delay”); Howard v. Ferrellgas Partners, L.P., 748 F.3d 975, 977 (10th Cir. 2014) (stating “summarily” means “quickly”). Giving the word its ordinary meaning, the district court must conduct a trial on arbitrability without delay. Hansen, 1 F.4th at 672. The arbitrability question is akin to deciding the correct venue for the case and after venue is determined, then the “parties can get on with the merits of their dispute in the right forum.” Howard, 748 F.3d at 978. “Congress’s clear intent, in the Arbitration Act, [is] to move the parties to an arbitrable dispute out of court and into arbitration as quickly and easily as possible.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 22 (1983). Sections 3 and 4 of the Arbitration Act provide for “only restricted inquiry into factual issues.” Id. The asserted benefits of arbitration, including efficiency and less intrusive discovery, will be lost if the district court can proceed with pretrial matters while the question of arbitrability is pending. Coinbase, Inc. v. Bielski, 599 U.S. 736, 743 (2023). Allowing merits discovery and dispositive mo
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