Vivint Solar v. Lundberg

2025 UT App 102

THE UTAH COURT OF APPEALS

VIVINT SOLAR, INC.,
Appellant,
v.
JIM LUNDBERG,
Appellee.

Opinion
No. 20230335-CA
Filed July 3, 2025

Third District Court, Salt Lake Department
The Honorable Richard D. McKelvie
No. 200907106

Peggy A. Tomsic, Jennifer Fraser Parrish, and
Geoffrey K. Biehn, Attorneys for Appellant
Alan C. Bradshaw and Mitch M. Longson, Attorneys
for Appellee

JUDGE JOHN D. LUTHY authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and RYAN D. TENNEY concurred.

LUTHY, Judge:

¶1 Jim Lundberg left Vivint Solar, Inc. (Solar) as its associate
general counsel after receiving multiple awards of nonrestricted
stock options and restricted stock units from Solar. When he left
Solar, Lundberg began working for Vivint Smart Home, Inc.
(Smart Home), believing that his nonrestricted stock options and
restricted stock units would continue to vest. However, when he
asked Solar to deliver the stock underlying those equity awards,
Solar informed Lundberg that it had canceled the awards when
he left Solar for Smart Home.

¶2 After nearly two years of ensuing litigation of claims and
counterclaims related to the equity awards—which claims were
Vivint Solar v. Lundberg

subject to forum selection agreements requiring litigation of the
claims in Utah and Delaware courts—Solar filed an arbitration
demand alleging claims of attorney malpractice against Lundberg
and citing a mandatory arbitration provision from Lundberg’s
separate employment contract with Solar. Lundberg responded
by arguing that Solar’s litigation of the equity award claims for
nearly two years acted as a waiver of its contractual right to
arbitrate its malpractice claims. The district court agreed and
issued an order precluding arbitration of Solar’s malpractice
claims.

¶3 Solar now appeals, urging four reasons for reversal of the
district court’s order. Because we are unpersuaded by any of
Solar’s arguments, we affirm the order.

BACKGROUND

313 Acquisition Acquires Solar and Smart Home
and Lundberg Begins Working for Solar

¶4 In 2012, 313 Acquisition, LLC (313 Acquisition) became the
majority owner of both Solar and Smart Home. In May 2014,
under the terms of a written employment agreement, Solar hired
Lundberg as its associate general counsel. The employment
agreement included an incentive in the form of a potential grant
to Lundberg of a nonqualified stock option 1 to purchase 30,000
shares of Solar stock.

1. “A non-qualified stock option (NSO) is a type of employee stock
option that allows an employee to purchase company shares at a
set price (also known as the grant price) within a specified
period.” James Chen, What Is a Non-Qualified Stock Option (NSO)
and How Is It Used?, Investopedia, https://www.investopedia.com/
terms/n/nso.asp [https://perma.cc/G3MM-J2WV].

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Vivint Solar v. Lundberg

The First Equity Award and the 2013 Plan

¶5 In July 2014, Lundberg received the nonqualified option to
purchase 30,000 shares of Solar common stock (the First Equity
Award). The First Equity Award was governed by Solar’s 2013
Omnibus Incentive Plan and an accompanying nonqualified stock
option agreement (collectively, the 2013 Plan). Under the 2013
Plan, as long as Solar met certain performance benchmarks (which
it apparently did), the First Equity Award would fully vest in 2019
if at that time Lundberg remained an “individual employed by
[Solar] or an Affiliate.” If he ceased to be “employed” by Solar or
an “Affiliate” before the First Equity Award vested, Lundberg
would forfeit the award. The 2013 Plan defined “Affiliate” to
include “any corporation, trade or business [wherein] 50% or
more of the combined voting power of such entity’s outstanding
securities [was] directly or indirectly controlled by [Solar] or any
. . . Parent Corporation.” And “Parent Corporation” was defined
to include a corporation that owned “50 percent or more of the
total combined voting power of all classes of stock” in another
corporation. The 2013 Plan also contained the following forum
selection provision: “Any suit, action or proceeding with respect
to this Plan . . . shall be brought exclusively in any court of
competent jurisdiction in Salt Lake City, Utah.”

The New Employment Agreement

¶6 In September 2014, Lundberg signed a new employment
agreement with Solar (the Employment Agreement). Under the
Employment Agreement, Solar and Lundberg agreed that “any
and all controversies, claims, or disputes . . . arising out of, relating
to, or resulting from [Lundberg’s] employment with [Solar] . . .
[would] be subject to binding arbitration.” Lundberg and Solar
further agreed that the provisions of the Employment Agreement,
including the arbitration provision, would “survive the
termination of [Lundberg’s] employment with [Solar].”

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The Second and Third Equity Awards and the 2014 Plan

¶7 In April 2015, Lundberg received a second equity award
from Solar, this time consisting of 7,632 restricted stock units 2 and
a nonrestricted stock option to purchase 7,632 shares of Solar
common stock (the Second Equity Award). And in May 2016,
Lundberg received a third equity award, namely, 88,706 restricted
stock units from Solar (the Third Equity Award). The Second and
Third Equity Awards were issued pursuant to Solar’s 2014 Equity
Incentive Plan and associated nonqualified stock option and
restricted stock unit agreements (collectively, the 2014 Plan).
Under the 2014 Plan, the Second Equity Award would fully vest
in May 2019 and the Third Equity Award would fully vest in May
2018, as long as Lundberg remained a “Service Provider” as of
those dates. “Service Provider” was defined to include an
“Employee,” and “Employee” was defined to include “any
person . . . employed by [Solar] or any member of the Company
Group.” “Company Group,” in turn, was defined to mean “any
entity that, from time to time and at the time of any determination,
directly or indirectly . . . is under common control with [Solar].”

¶8 The 2014 Plan also contained the following forum selection
provision:

For purposes of litigating any dispute that arises
under this Plan, a Participant’s acceptance of an

2. “A restricted stock unit [(RSU)] is a type of compensation issued
by an employer in the form of company stock. It is a promise of
future stock in the company and not technically worth anything
immediately. The RSU is converted to actual stock shares once the
employee is fully vested through performance or length of time
with the company.” What Is a Restricted Stock Unit (RSU) and How
Does It Work? (With Example), Indeed, https://www.indeed.com/
career-advice/career-development/rsu [https://perma.cc/3UZ7-
ASG5].

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Vivint Solar v. Lundberg

Award is his or her consent to the jurisdiction of the
State of Delaware, and [the Participant] agree[s] that
any such litigation will be conducted in [the]
Delaware Court of Chancery, or the federal courts
for the United States for the District of Delaware,
and no other courts, regardless of where a
Participant’s services are performed.

Lundberg Leaves Solar for Smart Home and Attempts to Exercise His
Stock Options

¶9 Around August 2016, Lundberg left Solar and began
working for Smart Home as its general counsel. About four years
later, in early July 2020, Sunrun Inc. announced that it would be
acquiring Solar. That announcement led to an increase in the
market price of Solar stock. At the time of the announcement and
until October 8, 2020, 313 Acquisition remained the majority
owner of both Solar and Smart Home.

¶10 In late July 2020, Lundberg—who was still employed by
Smart Home—wrote to Solar, asserting that he had “remained
during all relevant time periods and through all applicable
vesting dates an active ‘Service Provider’ with a member of the
‘Company Group’” under the 2014 Plan and, therefore, that the
restricted stock units from the Second and Third Equity Awards
had vested. Lundberg then requested that the associated shares
be delivered to him. Also in late July, and again in September
2020, Lundberg sent additional correspondence to Solar asserting
that the nonqualified stock options granted him in the First and
Second Equity Awards had also vested. He tendered the grant
price of those options and asked that the shares be delivered to
him.

Solar Denies Lundberg’s Requests

¶11 Solar responded by denying all of Lundberg’s equity
award claims. It expressed its view that the nonqualified stock

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Vivint Solar v. Lundberg

options from the First and Second Equity Awards had not vested
when Lundberg left Solar or, if they had vested, he had not
exercised them within the applicable ninety-day exercise period
after he left Solar. It similarly expressed the view that the
restricted stock units from the Second and Third Equity Awards
also had not vested when Lundberg left Solar. Solar then asserted
that it and Smart Home were neither “Affiliates” as that term is
used in the 2013 Plan nor members of the same “Company
Group” as that term is used in the 2014 Plan. In its view, Lundberg
had not been employed by an “Affiliate” or member of the same
“Company Group” on the applicable vesting dates. Thus, Solar
asserted that Lundberg had forfeited his equity awards. In further
support of its position, Solar pointed to language in the 2013 Plan
that it asserted gave its compensation committee “sole and
plenary discretion and authority to interpret the [applicable]
language” of the 2013 Plan. It likewise pointed to language in the
2014 Plan that it asserted also gave the compensation committee
sole discretion to interpret the applicable language of the 2014
Plan and determine the effect of an employee’s transfer from one
member of the “Company Group” to another. On these bases,
Solar told Lundberg that he had “no right to and [was] not entitled
to receive” either the restricted stock units or the nonrestricted
stock options, and it declined to deliver the associated stock to
him.

Lundberg Initiates Federal Court Litigation and Arbitration
Proceedings Against Solar

¶12 In late September 2020, Lundberg responded by suing
Solar in federal court in Utah. 3 Then, in October 2020, citing the
arbitration provision of the Employment Agreement, Lundberg

3. None of the federal court pleadings are included in the record
before us, but the fact of Lundberg’s filing the federal court action
in September 2020, and of his later voluntary dismissal of that
action, see infra ¶ 15, are included and undisputed in the record.

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Vivint Solar v. Lundberg

also initiated arbitration proceedings against Solar, asserting
claims for breach of contract, breach of the covenant of good faith
and fair dealing, conversion, negligent misrepresentation,
fraudulent inducement, and violations of various federal
securities laws. 4 In relation to his negligent misrepresentation and
fraudulent inducement claims, Lundberg alleged that “[t]o the
extent [Solar] . . . interpret[ed] the term ‘Affiliate’ under the 2013
and 2014 Plans such that [Solar was] not an affiliate or sister
company of [Smart Home], or under the common control of a
parent company,” it had made knowingly false contrary
statements to Lundberg while he was working for Solar. He
further alleged that he reasonably relied on those contrary
statements when he left Solar believing that “he would not forfeit
his Equity Awards by transferring to [Smart Home].”

¶13 Solar filed a motion with the arbitrator, requesting
dismissal of Lundberg’s arbitration proceeding. It argued that the
parties had not agreed to arbitrate Lundberg’s breach of contract
claims or his conversion claim. As to Lundberg’s claims for
negligent misrepresentation, fraudulent inducement, and federal
securities law violations, Solar argued that Lundberg had failed
to state a claim upon which relief could be granted.

Solar Initiates Litigation in Utah and Delaware

¶14 In November 2020 (apparently before the arbitrator ruled
on Solar’s motion to dismiss Lundberg’s arbitration proceeding),
Solar filed lawsuits against Lundberg in Utah state district court
(the Utah case) and in the Delaware court of chancery (the

4. Lundberg’s arbitration demand, as well as Solar’s motion
requesting its dismissal, see infra ¶ 13, are included, without
objection, in the record here, as is the undisputed fact that
Lundberg later agreed to stay the arbitration of his federal
securities law claims, see infra ¶ 15.

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Vivint Solar v. Lundberg

Delaware case). 5 In those cases, Solar asserted claims for breach of
the forum selection clauses of the 2013 Plan and the 2014 Plan,
respectively, based on Lundberg having filed suit in federal court
in Utah and having initiated arbitration proceedings. In both
cases, Solar also sought a declaratory judgment: in the Utah case,
it requested a judgment declaring that when Lundberg left Solar,
he forfeited the nonrestricted stock options he had received in the
First Equity Award; in the Delaware case, it requested a judgment
declaring that when Lundberg left Solar, he forfeited the
nonrestricted stock options and restricted stock units he had
received in the Second and Third Equity Awards. Lundberg
responded by filing breach of contract counterclaims in both
cases.

5. While this appeal arises from the Utah case, a number of
documents from the Delaware case were submitted, without
objection, as exhibits to motions in the Utah case and, thus, appear
in the record before us. Additionally, following oral argument in
this appeal, Lundberg submitted a notice of supplemental
authority under rule 24(j) of the Utah Rules of Appellate
Procedure, attaching an unpublished memorandum decision
containing the findings and conclusions of the Delaware court
following a bench trial in that case. Solar responded to Lundberg’s
rule 24(j) notice by asserting that the notice itself was untimely
and improperly addressed the merits of Solar’s malpractice
claims, and that the memorandum decision it identified is
irrelevant. But Solar did not contest the authenticity of the
memorandum decision, and the memorandum decision has been
separately reported by Westlaw as well, see Vivint Solar, Inc. v.
Lundberg, No. 2020-0988, 2024 WL 2755380 (Del. Ch. May 30,
2024). Thus, we rely on the Delaware court’s memorandum
decision and the documents from the Delaware case that appear
in the record for the facts recited herein regarding the Delaware
case.

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Vivint Solar v. Lundberg

¶15 Early in the Delaware case, Solar sought and obtained an
injunction prohibiting Lundberg from pursuing his state law
claims in arbitration. Lundberg then agreed to stay the arbitration
of his federal securities law claims, he dismissed his federal case,
and the parties proceeded to litigate the Delaware and Utah cases.
Over the next year and more, the parties engaged in substantial
discovery, deposing at least ten witnesses (some more than once)
and exchanging hundreds of pages of documents.

The Delaware Case

¶16 The central issue in the Delaware case was whether under
the 2014 Plan, Lundberg’s Second and Third Equity Awards
continued to vest after he left Solar and went to work for Smart
Home. Solar took the position that those awards did not continue
to vest because Smart Home was not a member of the defined
“Company Group.” Solar also took the position that under the
2014 Plan, decisions by its compensation committee regarding the
2014 Plan were authoritative and binding and that the
compensation committee had authoritatively determined that
once an employee ended employment with Solar, all of the
employee’s unvested equity awards would be canceled. As a
defense to Lundberg’s counterclaims, Solar asserted that, based
on when Lundberg learned his equity awards had been canceled,
his claims were barred by laches and the applicable statute of
limitations. Specifically, Solar alleged, among other things, that
“[a]s former in-house counsel, Lundberg . . . knew before he
received any provisional, unvested [restricted stock unit awards]
or unvested [s]tock [o]ption [a]wards that [Smart Home] was not
included within the term ‘Company Group’ under the 2014 Plan”
and that “Lundberg, as [Solar’s] in-house counsel, was aware that
the [compensation committee’s] interpretation and
administration of the 2014 Plan . . . was to cancel/terminate
unvested equity awards upon a [Solar] employee’s termination of
employment with [Solar].”

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Vivint Solar v. Lundberg

¶17 Lundberg maintained, first, that the Second and Third
Equity Awards continued to vest after he left Solar because Smart
Home was a member of the defined “Company Group.” In
response to Solar’s view of its compensation committee’s
authority to interpret the 2014 Plan, he asserted that while the
system used by the brokerage firm Solar contracted with to
provide administrative services for the 2014 Plan automatically
canceled the unvested portion of employees’ equity awards when
they left Solar, those automatic cancellations were not the product
of a decision by Solar’s compensation committee. Finally, in
response to Solar’s laches and statute of limitations defenses to his
counterclaims, Lundberg asserted that he did not learn of Solar’s
interpretation of the 2014 Plan and cancellation of his equity
awards until years after he left Solar.

¶18 In June 2023, the Delaware case proceeded to a bench trial. 6
After the trial, the Delaware court requested supplemental
submissions, the last of which it received in January 2024. In mid-
2024, the Delaware court issued its ruling. The Delaware court
determined that Solar’s reading of the term “Company Group” to
include “only Solar or its subsidiaries” and not Smart Home was
“not a reasonable one.” In relation to Solar’s argument that its
compensation committee nevertheless made a binding decision to
interpret the 2014 Plan as allowing for cancellation of employees’
unvested equity awards when they left Solar, the court found the
following:

6. This appeal from the Utah case was filed in April 2023. Thus,
the trial in the Delaware case and the Delaware court’s ruling
following trial occurred while this appeal was pending. Because
some aspects of the Delaware court’s ruling are relevant to our
analysis, we include them here.

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Vivint Solar v. Lundberg

• “Solar consistently employed a practice of terminating
awards under the 2014 Plan when plan participants
stopped working at Solar or one of its subsidiaries.”

• “Solar’s IPO Prospectus, the 2014 Plan Prospectus, and
statements by Solar employees either directly confirm
or do not contradict this practice.”

• Language stating “that ‘[a]ll vesting shall be subject to
your continued employment with [Solar] through
applicable vesting dates’” was “used in the [award]
offer letters . . . sent to employees” under the 2014 Plan.

• “Although Solar demonstrated a consistent practice of
forfeiting unvested awards upon a recipient’s
termination of employment with Solar or its
subsidiaries, [Solar] did not present any persuasive
evidence that the [compensation committee] ever made
a determination to this effect, either generally or in a
specific instance. Indeed, the evidence revealed that no
such decision [by the compensation committee] was
made.”

¶19 As to Solar’s laches and statute of limitation defenses to
Lundberg’s counterclaims, the court received evidence of, among
other things, dates when Lundberg logged in to his online account
with the brokerage that administered the equity awards. Based on
that evidence, the court found that “Lundberg knew no later than
July 6, 2017, and likely much earlier, that Solar had not delivered”
at least some of his vested restricted stock units, and it held that
“[s]ome of Lundberg’s counterclaims [were therefore] time-
barred.”

¶20 Ultimately, the Delaware court concluded that Lundberg’s
Second and Third Equity Awards continued to vest while he
worked for Smart Home, that Solar therefore breached the 2014
Plan by refusing to deliver those vested awards, and that

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Vivint Solar v. Lundberg

Lundberg was entitled to damages for his non-time-barred
counterclaims. The Delaware court determined that Lundberg
violated the forum selection clause of the 2014 Plan when he
initially filed his Delaware claims in federal court in Utah and
when he initiated arbitration proceedings on those claims, but it
held that an award of damages was not a cognizable remedy for
breach of the forum selection clause.

The Utah Case

¶21 The parties’ positions in the Utah case regarding the First
Equity Award and the 2013 Plan largely mirror their positions in
the Delaware case regarding the Second and Third Equity Awards
and the 2014 Plan. In the Utah case, Solar contends that Smart
Home is not an “Affiliate” of Solar under the 2013 Plan. It also
contends that its compensation committee has “sole and absolute
discretion to interpret language in and administer the 2013 Plan”
and that “[f]rom the 2013 Plan’s inception, the [compensation
committee] has consistently interpreted and administered the
2013 Plan” to cancel “unvested equity awards upon a [Solar]
employee’s termination” of employment with Solar. Solar alleges
that “[a]s [Solar’s] in-house counsel, Lundberg knew that the
[compensation committee] interpret[ed] and administer[ed] the
2013 Plan . . . by canceling/terminating unvested equity awards
upon a [Solar] employee’s termination” and that before leaving
Solar, “Lundberg never raised any issue relating to the vesting of
equity awards.” And Solar again asserts laches and statute of
limitation defenses to Lundberg’s counterclaims.

¶22 For his part, Lundberg maintains that “Solar is an ‘Affiliate’
of [Smart Home] because both entities are under common control
of 313 [Acquisition]” and, therefore, that his employment did not
terminate under the 2013 Plan when he went to work for Smart
Home. He further asserts that even if the compensation committee
interpreted and administered the 2013 Plan to cancel all unvested
equity awards when an employee left Solar, “the plain language

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Vivint Solar v. Lundberg

of the [2013] Plan, rather than the [compensation committee’s]
view of the Plan controls.” Thus, Lundberg contends that the
nonqualified stock options he received in the First Equity Award
vested and that Solar breached its agreement under the 2013 Plan
by not delivering the associated stock to him.

¶23 In March 2021, Lundberg moved for summary judgment
on his counterclaims, and Solar opposed the motion. The district
court denied Lundberg’s motion, ruling that the 2013 Plan “leaves
to the discretion of the [c]ompensation [c]ommittee the
interpretation of the 2013 Plan unless otherwise provided
therein,” that “the term ‘Affiliate’ in the 2013 Plan [is]
ambiguous,” and that “there exist genuine issues of material fact
regarding whether the [c]ompensation [c]ommittee acted within
[its] discretion in interpreting the Plan to foreclose Lundberg’s
exercise of the stock options.”

¶24 In June 2022, as discovery continued, the parties attempted
mediation but were unable to reach a settlement.

The Arbitration Demand

¶25 The next month, July 2022, relying on the arbitration
provision of the Employment Agreement, Solar filed an
arbitration demand (the Arbitration Demand). In the Arbitration
Demand, Solar asserted claims against Lundberg for attorney
malpractice allegedly committed while he was employed as
Solar’s associate general counsel. Specifically, Solar alleged that
“from the inception” of the 2013 and 2014 Plans, it had interpreted
and administered those plans to “require employees [who had
been] granted unvested equity awards to remain employed with
[Solar] through all applicable vesting dates for the equity awards
to vest”; to therefore “deem as forfeited . . . an employee’s
unvested equity awards upon the termination of employment
with [Solar]”; and to “trigger the exercise period for an
employee’s vested stock option awards upon employment
termination.” It also alleged that “[b]efore becoming employed by

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Vivint Solar v. Lundberg

[Solar] and throughout his employment with [Solar], Lundberg
knew about and agreed to [Solar’s] interpretation/administration
of the Plans.” Solar then alleged that it had “recently learned,”
while deposing Lundberg in July 2021, that

Lundberg, in reviewing and analyzing the Plans in
2015 . . . , determined that, in his view as [Solar’s]
lawyer, the definition of “Affiliate” in the 2013 Plan
and the definition of “Company Group” in the 2014
Plan were potentially ambiguous and subject to a
potential counterinterpretation that would allow a
[Solar] employee’s unvested equity award to
continue to vest . . . if an employee terminated
employment with [Solar] and went to work for
[Smart Home].

Solar asserted that Lundberg’s “counterinterpretations created
substantial financial risk for [Solar]” that “Lundberg had a
fiduciary duty to disclose and not conceal.” Based on these and
other allegations, Solar asserted causes of action for breach of
fiduciary duty, fraudulent nondisclosure, and breach of duties
owed to a former client (Solar’s malpractice claims). As damages,
Solar claimed “any judgment rendered against [Solar] in any of
the litigation by Lundberg, and attorney fees and costs to defend
against Lundberg’s actions and to prosecute [the Arbitration
Demand].”

¶26 In the Utah case, Lundberg filed a motion to stay any
proceedings under the Arbitration Demand. In that motion,
Lundberg argued alternatively that Solar’s malpractice claims are
not arbitrable; that the Arbitration Demand constituted improper
claim splitting; and that by litigating the claims related to the
equity awards in the Utah and Delaware cases for nearly two
years, Solar waived any right it had to arbitrate its malpractice
claims. Solar disputed each of Lundberg’s arguments.

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Vivint Solar v. Lundberg

¶27 Based on Lundberg’s motion, Solar’s response, and the
documentary record before it, the district court granted
Lundberg’s motion to stay. It disagreed with Lundberg’s
assertions that Solar’s malpractice claims are not arbitrable and
that the Arbitration Demand constituted improper claim splitting.
But it agreed with Lundberg’s assertion that Solar waived its right
to arbitrate its malpractice claims by litigating the equity award
claims in the Utah case and the Delaware case for nearly two
years. Thus, the court issued an order “preclud[ing] [Solar] from
proceeding with [the] Arbitration Demand.” Solar now appeals
from that order. See generally Utah Code § 78B-11-129 (allowing
for an appeal to “be taken from . . . an order granting a motion to
stay arbitration”).

ISSUE AND STANDARD OF REVIEW

¶28 On appeal, Solar contends that the district court erred by
ruling that Solar substantially participated in litigation to a point
inconsistent with arbitration of its malpractice claims and
granting Lundberg’s motion to stay arbitration on that basis.
When, as here, a district court grants a motion to stay arbitration
based on documentary evidence alone, we review that decision
for correctness. See ASC Utah, Inc. v. Wolf Mountain Resorts, LC,
2010 UT 65, ¶ 11, 245 P.3d 184 (“[W]hen a district court denies a
motion to compel arbitration based on documentary evidence
alone, it is a legal conclusion that is reviewed for correctness.”);
Turpin v. Valley Obstetrics & Gynecology, 2021 UT App 12, ¶ 17, 482
P.3d 831 (“[B]ecause the district court’s substantial participation
determination was made based on documents alone, we review
its decision for correctness.”). 7

7. Lundberg has not appealed the district court’s rulings that
Solar’s malpractice claims are not arbitrable and that the
Arbitration Demand constitutes improper claim splitting. He
(continued…)

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ANALYSIS

¶29 The district court determined that while Solar’s
malpractice claims are arbitrable under the Employment
Agreement’s arbitration clause, Solar waived its right to arbitrate
those claims. Our supreme court “has recognized the important
public policy behind enforcing arbitration agreements as an
approved, practical, and inexpensive means of settling disputes
and easing court congestion.” Cedar Surgery Center, LLC v. Bonelli,
2004 UT 58, ¶ 14, 96 P.3d 911 (cleaned up). In light of that policy,
our supreme court has “also acknowledged that there is a strong
presumption against waiver of the right to arbitrate.” Id. (cleaned
up). Consistent with those principles, “a court may infer [such a]
waiver only if the facts demonstrate that the party seeking to
enforce arbitration intended to disregard its right to arbitrate.” Id.
(cleaned up). Hence, to establish waiver of the right to arbitrate, a
party must show “(1) that the party seeking arbitration
substantially participated in the underlying litigation to a point
inconsistent with the intent to arbitrate; and (2) that this
participation resulted in prejudice to the opposing party.”8 Id.

does, however, renew his arguments regarding claim splitting
and the arbitrability of Solar’s malpractice claims as alternative
bases for affirming the district court’s ultimate determination to
preclude proceedings under the Arbitration Demand. Because we
affirm the district court’s decision on the basis that Solar waived
its right to arbitrate its malpractice claims, we do not address
Lundberg’s alternative arguments for affirmance.

8. Solar observes that in Mounteer Enterprises, Inc. v. Homeowners
Ass’n for the Colony at White Pine Canyon, 2018 UT 23, 422 P.3d 809,
our supreme court “repudiate[d] the requirement of proof of
prejudice as an element of waiver” generally. Id. ¶ 33. Solar asserts
that Mounteer thus “call[s] into question the continued viability of
(continued…)

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Vivint Solar v. Lundberg

¶30 Here, the district court relied on Nelson v. Liberty
Acquisitions Servicing, LLC, 2016 UT App 92, 374 P.3d 27, in
deciding that Solar substantially participated in underlying
litigation to a point inconsistent with the intent to arbitrate. In
Nelson, a debt collection company had previously filed and
pursued debt collection actions against two individuals. See id.
¶¶ 1‒2. One of those actions had resulted in dismissal of the
company’s claim on statute of limitation grounds. See id. ¶ 3. The
other was ultimately resolved through a stipulated dismissal. See
id. ¶ 4. The defendants from the debt collection actions then filed
a complaint against the collection company, alleging that it had
“violated the federal Fair Debt Collection Practices Act (the
FDCPA) and the Utah Consumer Sales Practices Act (the UCSPA)
by filing the [c]ollection [a]ctions despite the expiry of the time
bar” for bringing such actions. Id. ¶ 5.

¶31 Pointing to account agreements that contained arbitration
clauses, the collection company filed a motion to compel

[the] second prong” of the test for waiver of the right to arbitrate.
We made the same observation in Turpin v. Valley Obstetrics
& Gynecology, 2021 UT App 12, 482 P.3d 831, but noted that
Mounteer “was not an arbitration case” and that the court in
Mounteer “did not specifically address whether prejudice remains
an element” of the test for waiver of the right to arbitrate. Id. ¶ 28
n.10. “Because the parties [in Turpin] did not raise this issue in the
district court or on appeal, we consider[ed] it waived and
assume[d] for purposes of our review that the prejudice prong
still applie[d] in the . . . context [of waiver of the right to
arbitrate].” Id. But we “flag[ged] the issue for possible exploration
in a future case.” Id. This is not that case. While Solar has flagged
the potential issue, it has not actually challenged the continued
viability of the second prong of the waiver test in this context.
Neither has Lundberg. Thus, we again assume its continued
viability and again flag the issue for possible exploration in a
future case.

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Vivint Solar v. Lundberg

arbitration of the debtors’ FDCPA and UCSPA claims. See id. ¶ 6.
The debtors “opposed the motion to compel arbitration,
arguing[,] among other things,” that the company had “waived
the right to arbitration by forgoing arbitration and instead filing
and pursuing the [c]ollection [a]ctions in court.” Id. ¶ 7. The
district court denied the motion, ruling that, “having chosen to
pursue litigation in [the] collection actions, [the collection
company] waived the right to assert the arbitration provision
against the [debtors] in the [FDCPA/UCSPA] case.” Id. ¶ 8
(cleaned up). The collection company appealed. See id.

¶32 On appeal, the collection company argued that it could not
have intentionally and knowingly waived its right to arbitrate the
FDCPA and UCSPA claims by litigating the collection actions
because the FDCPA and UCSPA claims “did not exist, and . . .
were not raised, asserted or at issue in the prior collection
actions.” Id. ¶ 10 (cleaned up). This court disagreed. See id. ¶¶ 13‒
20. We first noted that if the collection company “filed time-barred
collection actions,” as the debtors alleged, then the “FDCPA and
UCSPA violation claims did not just exist at the time of the
[c]ollection [a]ctions but were in fact created by the filing of the
[c]ollection [a]ctions.” Id. ¶ 13.

¶33 We then acknowledged that the claims litigated in the
collection actions were different from the claims at issue in the
FDCPA/UCSPA action and that this raised a question as to
whether the collection actions qualified as “underlying litigation”
for purposes of determining waiver of the parties’ contractual
right to arbitrate the FDCPA and UCSPA claims. See id. ¶ 14.
Resolving that question, we held that “the relevant inquiry is not
simply whether the later claim was separate or distinct from the
earlier claim.” Id. ¶ 15. Instead, we indicated that courts should
“weigh the relationship of the earlier claims to the later claims”
and determine whether the “matters raised” in the earlier claims
“are intertwined with the issues raised” in the later claims. Id. ¶ 19
(cleaned up). We concluded that “where a court determines that

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Vivint Solar v. Lundberg

[the later] claims are not based on the underlying litigation, a
waiver of the right to arbitrate the prior claims does not effect a
waiver as to the [later] claims.” Id. ¶ 18. But because “the
applicability and effect of the time-bar [to the collection claims]
was at issue” in both the collection actions and the
FDCPA/UCSPA action, we determined that the collection actions
did qualify as “underlying litigation” and that the collection
company’s pursuit of that litigation acted as a waiver of its right
to arbitrate the FDCPA and UCSPA claims. See id. ¶¶ 13, 19‒20.

¶34 In the instant case, the district court deemed the parties’
litigation of the equity award claims to be “underlying litigation”
to Solar’s malpractice claims, explaining:

[Solar] chose to litigate, both in Utah and Delaware,
its claims regarding the stock agreements between
[Solar] and [Lundberg] set forth in the 2013 and 2014
Plans respectively. Indeed, [Lundberg] filed an
[a]rbitration [d]emand with regard to claims based
on the Plans, to which [Solar] objected—arguing
that while the securities claims were subject to
arbitration, the claims based on the Plans
themselves were not.

....

[Now in the] Arbitration Demand, [Solar]
alleges that [Lundberg] knew of the potential
ambiguity in the 2013 Plan language and failed to
inform [Solar] of the same in violation of duties [he]
owed [Solar] as counsel. These claims are
inextricably intertwined with the claims currently
pending before this [c]ourt. Indeed, [Solar] claims
any damages awarded against it in the present
matter as a measure of damages in the arbitration
proceeding. Furthermore, it is [Lundberg’s] alleged
understanding of the 2013 Plan—the very plan at

20230335-CA 19 2025 UT App 102
Vivint Solar v. Lundberg

issue in the present matter—that forms the basis of
the claims [Solar] alleges in the Arbitration Demand.
The foregoing, taken together, establishes that the
outcome of the claims [Solar] has asserted in the
Arbitration Demand are almost entirely dependent
on the outcome of the present action. Accordingly,
the [c]ourt finds that the present litigation is
properly considered the underlying litigation for
the purpose of the waiver analysis.

The court then held that Solar participated in the underlying
litigation to a point inconsistent with the intent to arbitrate its
malpractice claims and that Lundberg would suffer prejudice if
Solar were permitted to arbitrate its malpractice claims.

¶35 Solar expressly “does not dispute that a court may consider
litigation in other proceedings outside of the actual case being
appealed as the ‘underlying litigation for the purpose of the
waiver analysis,’ and that in doing so, a court may consider the
interrelatedness of the claims.” Solar also “does not challenge . . .
on appeal” the district court’s prejudice determination under the
second prong of the waiver test. Nor does Solar make any
argument against the district court’s determination that the extent
of the litigation in the Utah and Delaware cases is otherwise
inconsistent with an intent to arbitrate. Solar makes four other
arguments instead.

¶36 First, it contends that the district court “erred when it
found [Solar’s] prior litigation with Lundberg was conduct that
evinced unequivocally an intent to waive its right to arbitration and
was inconsistent with any other intent,” where Solar “was
contractually required to litigate its claims in the forums specified
by the parties’ agreements, to the exclusion of all other forums.”
Second, Solar suggests that the district court erred by determining
that the equity award claims in the Utah and Delaware cases are
sufficiently intertwined with Solar’s malpractice claims to qualify

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Vivint Solar v. Lundberg

the Utah and Delaware cases as “underlying litigation” for
purposes of a waiver analysis. Third, Solar maintains that it did
not know “all the facts necessary to allege [its malpractice claims]
in 2020 when [the Utah and Delaware cases] started,” suggesting
that it could not waive the right to arbitrate claims it did not know
it had. Finally, Solar asks us to adopt a rule requiring, as “a
mandatory factual predicate” for a finding of waiver based on
participation in underlying litigation, that the underlying
litigation involve claims subject to a contractual arbitration
provision. We address and reject, in turn, each of Solar’s
arguments.

I. Solar’s Ability to Arbitrate the Equity Award Claims

¶37 Solar “takes issue” with the district court’s “statement that
[Solar] ‘chose’ to bring [its equity award claims] in Utah and
Delaware, to the extent [that] the [d]istrict [c]ourt implies that
[Solar] ‘chose’ to litigate these claims versus bringing them in
arbitration.” Solar maintains that the parties’ equity award claims
“were contractually barred from being arbitrated, as they were
subject to contractual [forum selection] provisions [in the 2013
Plan and 2014 Plan] mandating the exclusive jurisdiction of courts
in Salt Lake City and Delaware.” “As a matter of law (and logic),”
Solar argues, it “could not have waived the right to arbitrate these
claims, as [it] had no right to arbitrate them in the first place.” To
conclude otherwise, Solar asserts, would “throw[] the parties’
freedom to contract out the window.” (Citing Utah Transit
Authority v. Greyhound Lines, Inc., 2015 UT 53, ¶ 31, 355 P.3d 947
(stating that, generally, “we should recognize and honor the right
of persons to contract freely and to make real and genuine
mistakes when dealings are at arms’ length” (cleaned up)).) Solar
is mistaken.

¶38 “It is fundamental that where parties have rights under an
existing contract[,] they have exactly the same power to . . . waive
such rights as they had to make the contract in the first place.”

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Vivint Solar v. Lundberg

Cheney v. Rucker, 381 P.2d 86, 89 (Utah 1963). Here, prior to Solar
filing the Utah and Delaware cases, Lundberg waived his rights
under the forum selection provisions of the 2013 and 2014 Plans
by filing his own arbitration demand that included his equity
award claims. At that point, Solar was free to likewise waive the
forum selection provisions of the 2013 and 2014 Plans and
participate in arbitration. The fact that it chose not to join
Lundberg and waive its right to litigate the equity award claims
does not mean that it was bound to litigate those claims. Rather,
the district court was correct: “[Solar] chose to litigate, both in
Utah and in Delaware, its claims regarding the stock agreements
between [Solar] and [Lundberg] set forth in the 2013 and 2014
Plans.” We therefore reject Solar’s argument that the district court
erred in making that determination.

II. Sufficient Intertwining of the Utah and Delaware Case Claims
and Solar’s Malpractice Claims

¶39 Next, Solar asserts that the district court erred by
determining that the equity award claims in the Utah and
Delaware cases are sufficiently intertwined with Solar’s
malpractice claims to qualify the Utah and Delaware cases as
“underlying litigation” for purposes of a waiver analysis.
Specifically, Solar does not agree with the district court’s
determination that the outcome of Solar’s malpractice claims is
“almost entirely dependent on the outcome of the [Utah and
Delaware cases].” In this regard, Solar contends that “the pivotal
question” in the Utah and Delaware cases is “What interpretation
of the [relevant] Plan is correct—Solar’s or Lundberg’s?,” while
when it comes to Solar’s malpractice claims, “nobody has to
determine who’s right” about how to interpret the Plans. Instead,
Solar claims that the “only issue” raised by its malpractice claims
is “When did [Lundberg] know he had a different viewpoint of
how to interpret the [2013 and 2014 Plans] than Solar’s
[compensation committee]?” Solar contends that “[t]he only
substantive impact a judgment in [the Utah case and the Delaware

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Vivint Solar v. Lundberg

case] will have on [Solar’s malpractice claims] is to determine the
extent of damages that [Solar] may seek.”

¶40 Even if we were to agree with Solar that the outcome of its
malpractice claims is not “almost entirely dependent” on the
outcome of the equity claims in the Utah and Delaware cases,
almost entirely dependent claims is not the standard established
in Nelson. Rather, the standard from Nelson is whether the
“matters raised” in the earlier claims “are intertwined with issues
raised” in the later claims. Nelson v. Liberty Acquisitions Servicing
LLC, 2016 UT App 92, ¶ 19, 374 P.3d 27 (cleaned up). And here,
we conclude that the matters raised in the Utah and Delaware
cases are sufficiently intertwined with the issues raised by Solar’s
malpractice claims to qualify the Utah and Delaware cases as
underlying litigation for purposes of a waiver analysis.

¶41 Notwithstanding that the pivotal questions in the Utah and
Delaware cases involve the correct interpretation of the 2013 and
2014 Plans, while the primary issue raised by Solar’s malpractice
claims is when Lundberg knew his interpretation of the Plans
differed from the interpretation of the compensation committee,
the matters are nevertheless legally intertwined. In the Delaware
case, Solar asserted laches and statute of limitation defenses to
Lundberg’s breach of contract claims. In connection with those
defenses, Solar alleged that Lundberg knew prior to leaving Solar
of the compensation committee’s purported interpretation of the
2014 Plan to not include Smart Home as a member of the
“Company Group.” It also alleged that Lundberg was aware prior
to leaving Solar of the compensation committee’s practice of
canceling employees’ unvested equity awards when they left
Solar, even if the employees went to work for Smart Home. In
turn, Lundberg alleged that he did not know of Solar’s
interpretation of the 2014 Plan or that Solar had canceled his
equity awards until years after he left Solar. The parties produced
conflicting evidence on these points, and the Delaware court then
made specific findings, including about the practice of Solar

20230335-CA 23 2025 UT App 102
Vivint Solar v. Lundberg

canceling employees’ unvested equity awards upon their
termination of employment with Solar; the language used by
Solar to communicate vesting requirements to award recipients,
including Lundberg; the lack of a decision by the compensation
committee to interpret the 2014 Plan as Solar now interprets it;
and a date by which Lundberg must have known that his equity
awards had been canceled by the brokerage that administered the
equity awards.

¶42 The parties have made similar allegations related to Solar’s
laches and statute of limitation defenses in the Utah case as well.
Specifically, Solar alleges that as its in-house counsel, Lundberg
knew of its compensation committee’s interpretation of the 2013
Plan but “never raised any issue relating to the vesting of equity
awards.” In response, Lundberg denies those allegations but has
testified in a deposition that he reached his own relevant
interpretation of the 2013 Plan prior to leaving Solar. These
allegations and the evidence related to them will require the court
in the Utah case to also make findings on these matters.

¶43 The foregoing allegations, evidence, and findings in the
Utah and Delaware cases regarding what Lundberg knew about
Solar’s interpretation of the 2013 and 2014 Plans and when he
knew it has direct bearing on the malpractice claims Solar raises
in the Arbitration Demand, which, as Solar itself explains, center
on when Lundberg “[knew] he had a different viewpoint of how
to interpret the [2013 and 2014 Plans] than Solar’s [compensation
committee].”

¶44 Additionally, as the district court determined and as Solar
acknowledges, Solar asserts as damages under its malpractice
claims any damages awarded against it in the Utah and Delaware
cases. This provides another meaningful intertwining point
between the Utah and Delaware cases and Solar’s malpractice
claims.

20230335-CA 24 2025 UT App 102
Vivint Solar v. Lundberg

¶45 Moreover, because the claims in the Utah and Delaware
cases arise from the same agreements, the same understandings
about those agreements, and the same conduct related to those
agreements as Solar’s malpractice claims, the general facts and
fact discovery applicable to each set of claims are largely
overlapping. This reality further reflects a significant intertwining
between the Utah and Delaware cases on the one hand and Solar’s
malpractice claims on the other.

¶46 Based on the foregoing, we conclude that the district court
did not err in determining that the Utah and Delaware cases are
sufficiently intertwined with Solar’s malpractice claims to qualify
the Utah and Delaware cases as underlying litigation for purposes
of an arbitration waiver analysis.

III. Solar’s Knowledge of Its Malpractice Claims

¶47 Solar also maintains that it did not know “all the facts
necessary to allege [its malpractice claims] in 2020 when [the Utah
and Delaware cases] started.” Solar claims it became aware of its
malpractice claims only when it deposed Lundberg in July 2021
and learned that “Lundberg, in reviewing and analyzing the
Plans in 2015 . . . , determined that, in his view as [Solar’s] lawyer,
the definition of ‘Affiliate’ in the 2013 Plan and the definition
of ‘Company Group’ in the 2014 Plan were potentially ambiguous
and subject to . . . potential counterinterpretation[s].” Solar
thereby suggests that it could not have knowingly and
intentionally waived the right to arbitrate claims of which it
was unaware until July 2021 through litigation occurring in 2020
and the first half of 2021. However, not only did Solar wait until
July 2022 to file the Arbitration Demand, but its assertions about
when it became aware of its malpractice claims are belied by the
record.

¶48 Solar has claimed all along that Lundberg knew of its
interpretation of the terms “Affiliate” and “Company Group”
while he served as Solar’s in-house counsel. And Lundberg

20230335-CA 25 2025 UT App 102
Vivint Solar v. Lundberg

alleged in his arbitration demand—which he filed in October
2020—that he relied on a contrary understanding of those
terms when he left Solar believing that “he would not forfeit his
Equity Awards by transferring to [Smart Home].” Thus, when
Solar filed the Utah and Delaware cases in November 2020, it
already knew the factual basis for its malpractice claims: namely,
that while Lundberg was its in-house counsel, he was aware of
both Solar’s interpretation of the relevant terms in the 2013 and
2014 Plans and his own contrary interpretation of those terms and
yet failed to inform Solar of the conflicting interpretations
and their implications. Thus, we reject Solar’s suggestion that it
could not have knowingly and intentionally waived its right to
arbitrate its malpractice claims because it was not initially aware
of them.

IV. Solar’s Proposed Factual Predicate to a Determination of
Waiver Based on Participation in Underlying Litigation

¶49 Finally, Solar asks us to adopt a rule requiring, as “a
mandatory factual predicate” to a determination of waiver based
on participation in underlying litigation, that the underlying
litigation involve claims that are subject to a contractual
arbitration provision. Under such a rule, because the equity
award claims in the Utah and Delaware cases are not subject to a
contractual agreement to arbitrate,9 litigation of those claims in

9. In granting Solar’s motion for an injunction prohibiting
Lundberg from pursuing his state law claims in arbitration, and
in ruling that Lundberg breached the forum selection clause of the
2014 Plan, the Delaware court necessarily concluded that the
parties’ equity award claims were not subject to the Employment
Agreement’s mandatory arbitration provision. For purposes of
our analysis here, we accept the Delaware court’s conclusion and
assume a similar conclusion under the 2013 Plan without
undertaking any independent analysis of the correctness of such
conclusions.

20230335-CA 26 2025 UT App 102
Vivint Solar v. Lundberg

the Utah and Delaware cases would not qualify as underlying
litigation for purposes of determining whether Solar waived its
contractual right to arbitrate its malpractice claims.

¶50 In support of such a rule, Solar points in its principal brief
to this State’s “strong public policy in favor of arbitration,”
Chandler v. Blue Cross Blue Shield of Utah, 833 P.2d 356, 358 (Utah
1992), and corresponding “strong presumption against waiver of
the right to arbitrate,” Cedar Surgery Center, LLC v. Bonelli, 2004 UT
58, ¶ 14, 96 P.3d 911 (cleaned up), as well as to our caselaw,
wherein all cases holding that a party waived the right to arbitrate
have involved underlying litigation of claims that were
themselves subject to mandatory arbitration, see, e.g., Tomlinson v.
NCR Corp., 2014 UT 55, ¶ 9 n.1, 345 P.3d 523; Cedar Surgery Center,
2004 UT 58, ¶ 22; Chandler, 833 P.2d at 361.

¶51 Solar conceded at oral argument, however, that the fact
that our State’s caselaw regarding waiver of the right to arbitrate
has so far involved only underlying litigation of claims that were
themselves subject to mandatory arbitration does not mean that
our caselaw has resolved the unique issue presented here—
namely, whether prior litigation of claims not subject to a
contractual mandatory arbitration provision but intertwined with
later claims that are subject to mandatory arbitration can qualify
as underlying litigation for purposes of waiving arbitration. Thus,
its argument for a rule requiring a factual predicate of claims in
underlying litigation being themselves subject to an arbitration
provision really rests exclusively on the general policy favoring
arbitration and the corresponding presumption against finding
waivers of arbitration. And we agree with Lundberg that our
supreme court’s decision in ASC Utah, Inc. v. Wolf Mountain
Resorts, LC, 2010 UT 65, 245 P.3d 184, forecloses adoption of such
a rule on those grounds.

¶52 In ASC Utah, a landowner had been involved in extensive
contract litigation for three years when it filed a motion for leave

20230335-CA 27 2025 UT App 102
Vivint Solar v. Lundberg

“to add several new parties to the litigation.” Id. ¶¶ 2‒7. After the
district court denied that motion, the landowner filed a demand
for arbitration. Id. ¶ 8. The landowner acknowledged that it had
been “fully aware of the [arbitration provision in the parties’
contract] from the outset of the litigation.” Id. But it argued that it
had not waived its right to arbitrate because it had initially
“interpret[ed] the [arbitration] provision as not allowing it to
initiate arbitration.” Id. ¶¶ 8‒9. In other words, the landowner
argued that it “did not know it had the right [to arbitrate] until the
district court’s . . . order denying [its] request to add new parties
to the case” and that “it could not [have] relinquish[ed] a ‘known’
right [to arbitrate] because it originally believed that it did not
have the right to pursue arbitration.” Id. ¶ 26. Our supreme court
rejected the landowner’s argument. See id. ¶¶ 26‒28.

¶53 The supreme court reasoned that the landowner “was
clearly aware of the arbitration provision,” “had the responsibility
to understand all the [contract’s] provisions . . . when it signed the
[contract],” and, “[a]s a sophisticated business party, . . . [would
be] charged with a knowledge of any potential right of arbitration
[for purposes of] determining whether [it] waived the right to
arbitration.” Id. ¶¶ 27‒28. Ultimately, the court concluded:

Utah public policy favors arbitration agreements
only insofar as they provide a speedy and
inexpensive means of adjudicating disputes, and
reduce strain on judicial resources. In this case,
enforcing the arbitration agreement would
undercut both policy rationales: arbitration at this
point would be neither a speedy and inexpensive
way to adjudicate this dispute, nor a means of
reducing strain on judicial resources.

Id. ¶ 40.

¶54 Despite the unique fact here—that the equity award claims
in the Utah and Delaware cases are not themselves subject to a

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Vivint Solar v. Lundberg

contractual arbitration provision—ASC Utah’s public policy-
based conclusion applies equally in this context. Specifically,
enforcement of the Employment Agreement’s arbitration
provision solely because the equity award claims in the Utah and
Delaware cases are not themselves subject to a contractual
arbitration provision would undercut both policy rationales that
ordinarily favor enforcement of arbitration agreements. First,
arbitration of Solar’s malpractice claims at this point would not be
a speedy and inexpensive way to reach global resolution of Solar’s
and Lundberg’s intertwined claims. Rather, despite prior and
imminent resolution of the Delaware and Utah cases respectively,
the parties would just be embarking on the process of resolving
Solar’s malpractice claims—an outcome that could have been
avoided if Solar had chosen at the outset to arbitrate all of the
intertwining claims. And second, a holding requiring arbitration
of Solar’s malpractice claims at this point would not promote a
reduced strain on judicial resources. Instead, it would allow, and
in some cases incentivize, future parties not to consolidate and
resolve such intertwining claims in a non-judicial forum. Thus,
based on the limitations ASC Utah recognizes to the public policy
that usually favors arbitration agreements, we decline to adopt
Solar’s proposed rule requiring that prior litigation involve claims
subject to a contractual arbitration provision in order for that prior
litigation to qualify as underlying litigation for purposes of
waiving a contractual right to arbitrate later-asserted claims.

CONCLUSION

¶55 Solar was free to arbitrate, rather than litigate, the equity
award claims. The equity award claims in the Utah case and
Delaware case are sufficiently intertwined with Solar’s
malpractice claims to qualify the Utah and Delaware cases as
“underlying litigation” for purposes of determining Solar’s
waiver of its contractual right to arbitrate its malpractice claims.
Solar was aware of the factual basis for its malpractice claims

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Vivint Solar v. Lundberg

when it initiated the Utah and Delaware cases. And Solar’s
proposed rule requiring as a predicate to a determination of
waiver based on participation in underlying litigation that the
underlying litigation involve claims that are themselves subject to
a contractual arbitration provision is at odds with our supreme
court’s decision in ASC Utah, Inc. v. Wolf Mountain Resorts, LC,
2010 UT 65, 245 P.3d 184. For these reasons, we affirm the district
court’s order precluding arbitration of Solar’s malpractice claims.

20230335-CA 30 2025 UT App 102