Utah Court of Appeals hears dispute over whether Vivint Solar waived arbitration in Lundberg fight

The Utah Court of Appeals heard oral argument in Vivint Solar Inc. v. Lundberg, case no. 20230335, centered on whether Vivint Solar waived its contractual arbitration right by litigating equity claims in court.

Peggy Tomczyk, counsel for Vivint Solar, told the panel that “Solar's intention is not to harass mister Lundberg” but to enforce written agreements and that the appeal turns on whether Solar had a contractual right to arbitrate the equity claims the lower court addressed. Tomczyk argued the district court erred in finding waiver because, she said, the record shows Solar did not have a right to arbitrate the equity claims and therefore could not have waived it.

The panel pressed multiple policy points and authority. Judge Luthy asked whether any of the cases cited by counsel actually required that the underlying litigation be of arbitrable claims, observing that “I didn't find in any of the cases” a holding to that effect. Tomczyk responded that prior Utah decisions relied on a factual predicate — the party that waived had a right to arbitrate the earlier claims — and warned that treating offers to arbitrate as effectively creating a waiver would undermine Utah's strong policies favoring arbitration and freedom of contract.

Counsel for Lundberg disputed that the claims were different in arbitration. Lundberg's advocate argued there is substantial overlap between the equity litigation (interpretation of plan language and vesting) and the employment/fiduciary claims (what Lundberg knew and when), and pointed to findings by the Delaware Court of Chancery resolving key interpretation and notice issues. As Lundberg's counsel put it, “We fundamentally reject the notion that the claims are different in arbitration.” He also noted that Delaware’s findings about plan interpretation and administration could have preclusive effect on issues before the Utah court.

The panel also asked about procedural and practical consequences. Counsel acknowledged that key pleadings and at least some deposition testimony became public in the Delaware litigation; the court warned that because an opinion will be issued in the appeal, parties should expect that “nothing's going to be private.”

The court took the matter under advisement and said it will issue a written opinion in due course.