Does class certification strip a defendant of its right to compel arbitration against unnamed class members? The Third Circuit recently held that it does not, unless the party seeking arbitration has waived that right by expressly or impliedly demonstrating an intentional relinquishment or abandonment of it. Salvatora v. XTO Energy, Inc., ___ F.4th ___, *3 (3d Cir. 2026). What, then, constitutes such a demonstration?
Salvatora v. XTO Energy, Inc. was a class action in which six landowners alleged that XTO Energy owed them royalties on natural gas extracted from their properties. Id. at *1. None of the named plaintiffs’ leases included arbitration provisions, but the proposed class definition did not exclude landowners whose leases did. XTO’s answers to the first, second, and third amended complaints asserted affirmative defenses, but not arbitration. The case proceeded through class discovery, court-sponsored mediation, and certification proceedings. XTO opposed certification, arguing in part that including leaseholders with arbitration clauses would defeat typicality and adequacy, and it told the court that it was not willing to waive its arbitration rights. The district court certified a class that included leaseholders with arbitration clauses, but allowed XTO to raise the arbitration defense post-certification by moving to amend the class definition after the opt-out period expired. Id. at *2.
As the case proceeded to class notice, XTO reaffirmed its intention to compel arbitration against class members whose leases contained arbitration clauses, and it moved to compel once the opt-out period expired. The plaintiffs opposed, arguing that XTO had implicitly waived arbitration by litigating for 55 months – omitting an arbitration defense from its answers, engaging in class discovery, and opposing certification – before moving to compel. Id. at *3.
The motion was denied, but the Third Circuit reversed. The Third Circuit’s analysis drew a distinction between a case where the named plaintiff’s claims were covered by an arbitration clause, and a case where the named plaintiff’s claims were not covered by an arbitration clause but the proposed class includes putative members who do. In such a case, the absence of a pre-certification motion to compel does not indicate a preference for litigation over arbitration. The Third Circuit then asked whether XTO’s other conduct evidenced an intent to waive arbitration: omitting the arbitration defense from its answers, engaging in class discovery, participating in mediation, opposing certification, and delaying its motion to compel. None of those actions, according to the Third Circuit, demonstrated a preference for litigation sufficient to constitute an implied waiver.
The analysis hinged on a threshold premise: putative members of a Rule 23(b)(3) class “are not parties to a case until after class certification.” Id. at *4. So when XTO answered the amended complaints, and throughout class discovery and mediation, it was not litigating against any class member whose lease contained an arbitration clause. Its opposition to certification sought to exclude those members from the litigation – not to resolve their dispute through it. And its delayed motion to compel adhered to the very timeline the Magistrate Judge had contemplated. On these grounds, the court held that “these circumstances do not clear the high bar needed to infer that XTO, after stating an intention to preserve its arbitration rights, intended to relinquish or abandon its ability to compel arbitration.” Id. at *6.
In upholding XTO’s contracted right to arbitrate, the court leaned on the high bar for finding an implied waiver – and on XTO’s own clearly expressed intention to arbitrate. Defendants facing a class action that may sweep in arbitration-bound members can therefore help preserve those rights by stating a preference for arbitration early, reiterating it as the case proceeds, and signaling when a motion to compel will follow.
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