Whether prejudice is part of the test for litigation conduct waiver in the context of an arbitration clause

QUESTIONS PRESENTED The district court in this case found, as a factual matter, that Respondent did not suffer prejudice from Petitioner’s failure to immediately press its right to arbitration. The court of appeals reversed. But instead of finding the district court committed clear error (the standard of review for factual findings) it simply announced that the district court’s factual findings were due no deference, and that Respondent had suffered prejudice. The questions presented are: 1. This Court is currently considering Morgan v. Sundance, No. 21-328, on the merits. That case squarely presents whether prejudice is part of the test for litigation conduct waiver in the context of an arbitration clause. Should the Court hold this petition pending the disposition of Morgan, and then grant, vacate, and remand in light of the standards for prejudice announced in that case? 2. Must a reviewing court strictly adhere to Federal Rule of Civil Procedure 52(a)’s requirement that a district court’s fact-findings “must not be set aside unless clearly erroneous,” as the First, Eighth, Ninth, and D.C. Circuits have held, or may the appellate court engage in its own review with less deference (or “no” deference, as the court below held) when the court of appeals decides the fact-findings are insufficient, as the Second, Fifth, Sixth, and Eleventh Circuits have concluded?