Remember when the Fifth Circuit ruled not long ago that a camel may pass through the eye of a needle more easily than a defendant may waive its rights to arbitrate?  And then sort of redeemed itself by holding that a defendant had in fact committed an Act of Waiver?  

The Eighth Circuit joined its penitent sister circuit today in ruling that a defendant waived arbitration by moving to dismiss the complaint (which alleges that Advance America charged 250+ percent interest for short-term loans) on the merits.  Hooper v. Advance Am., No. 08-3252 (8th Cir. Dec. 16, 2009).