Law360, New York (November 24, 2015, 10:12 AM EST) -- Notwithstanding the strong federal policy favoring arbitration over litigation, arbitral rights can be waived. Circuit courts of appeal generally pose a similar inquiry for determining a waiver: whether the party seeking arbitration (referenced here as defendant since that is usually the context) takes action in litigation inconsistent with its arbitration rights, and whether that action prejudices the plaintiff (except in the D.C. and Seventh Circuits, which do not require prejudice). Two 2015 decisions, however, reveal that framework as an ill-fitting suit when the waiver implicates the claims of absent, i.e., not named, putative class members. Those cases, In re Checking Account Overdraft Litigation[1] and Healy v. Cox Communications Inc.,[2] expose a need for a safe harbor that marks a clear deadline by which assertion of arbitral rights against absent class member claims would be immune to a waiver argument....