Four and a Half Years Is Too Late: Seventh Circuit Says Club Exploria Waived Arbitration in a TCPA Class Action

Imagine you get sued over prerecorded sales calls. You fight it for years. Discovery, motions, a certified class of 66,682 people. And then, after the plaintiff's summary judgment briefing is done, you say: "Oh, by the way, a bunch of these folks agreed to arbitrate."

Yeah. That didn't work.

So what happened?

Club Exploria, LLC owns and operates vacation properties. To promote its Summer Bay resort in Florida, it hired third-party vendors to run a telemarketing campaign in 2018. According to the opinion, the vendors bought leads generated through "opt-in" websites, and the scripted, prerecorded calls reached tens of thousands of people.

George Moore got two of those calls. In April 2019, he sued under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, claiming that he and a class received prerecorded calls without consent.

Exploria litigated for years. It filed answers with consent defenses, did two years of class discovery and opposed class certification, all without raising arbitration. After the class was certified, it filed more motions. Then, two months after briefing wrapped on Moore's summary judgment motion, it moved to compel arbitration for 1,026 of the 66,682 class members. Previously it had said up to 70% of the class might be covered.

The district court called the motion "out of the blue," found waiver and granted summary judgment to Moore and the class.

The ruling

In Moore v. Club Exploria, LLC, No. 25-2721 (7th Cir. Aug. 18, 2026), the U.S. Court of Appeals for the Seventh Circuit affirmed. Chief Judge Brennan wrote for the panel.

Here's the thing ... Exploria argued it couldn't have moved earlier, because unnamed class members aren't parties until a class is certified. The court agreed a defendant doesn't have to file premature motions. But it held that pre-certification conduct can still support a finding of waiver. Arbitration agreements should come out during class discovery and in the opposition to certification, because they affect the class analysis.

And blaming a lawyer change? The court said a new lawyer late in the game "cannot excuse prior counsel's lack of diligence." Otherwise, "parties could revive their rights simply by hiring a new lawyer."

The court's bottom line: "Four and a half years was too long for Exploria to wait to raise the topic of arbitration."

The panel also clarified its standard of review: parts of a ruling that set precedent get a fresh look, and the ultimate waiver call gets reviewed for clear error.

Why should you care?

If you buy leads from opt-in sites, those terms might include an arbitration clause. Great. But it's worth nothing if you sit on it.

Read that again.

What to do this week

• Pull your lead sources' terms now, not after you get sued.
• Keep consent and arbitration records together, tied to each lead.
• Tell your lawyers on day one if you think arbitration agreements exist.
• Raise arbitration early, including in any class certification fight.

It's not rocket science. A right you never use is a right you lose. That's it.

Read the Seventh Circuit's opinion in Moore v. Club Exploria.