PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT 

_______________________

No. 21-2192

_______________________

ROBERT D. MABE, INC.; ABINGTON PHARMACY, 

INC.;

JAC STORES, INC.; BIEN PHARMACY, INC.; BLENDE 

DRUG, INC.;

WULLSTEIN PHARMACY, INC.;

BUCHANAN BROTHERS PHARMACY, INC.;

CARROLL APOTHCARY, INC.; CARROLL 

APOTHCARY, LTC.;

CONCORD, INC.; DELRAY SHORES PHARMACY, 

INC.;

K.V.H., INC.; ELLENSBURG DOWNTOWN 

PHARMACY, INC.;

ERIC'S RX SHOPPE, LLC; FERGUSON REXALL 

DRUG, INC.;

FOX DRUG, INC.; CATHRON, INC.; KZ 

ENTERPRISES, LLC;

RCH PHARMACY SERVICES, LTD.; PHARMACY 

SERVICES, INC.;

HINES PHARMACY, INC.; HINES PHARMACY AT 

WKOA.;
2

E R BLACK PHARMACY, INC.; FAMILY 

PHARMACY;

J&S PROFESSIONAL PHARMACY, INC.;

VOSMEK DRUG STORE, INC.;

MESA PHARMACY OF PUEBLO, INC.;

PARKWAY DRUGS OF ONEIDA COUNTY;

PARKWAY DRUGS OF ONEIDA COUNTY NORTH, 

INC.;

PARKWAY DRUGS OF ONEIDA COUNTY SOUTH, 

INC.;

STREET ROAD PHARMACY, INC.;

PHILADELPHIA PHARMACY, INC.; PHILIP E. 

PEPPER, INC.;

PRESSMAN, INC.; CHELSEA DRUGS, INC.;

RASHID PHARMACY, PLC; SHAKTI PHARMACY, 

INC.;

RED CROSS PHARMACY, INC.;

REED DISCOUNT PHARMACY, INC.; REED 

PHARMACY, INC.;

GNSP CORP.; SAVALL DRUG, INC.; L&M 

PHARMACY, INC.;

SUBURBAN BUSTLETON PHARMACY, INC.;

RCL PHARMACY SERVICES, INC.;

OPERA HOUSE PHARMACY COMPANY; SPIVACK, 

INC.;

TOWN AND COUNTRY PHARMACIES, INC.;

WILLIAM J. FARLANDER, INC.; WHITMAN 

PHARMACY;
3

MEDS AND MORE, INC., d/b/a Meds & More;

CARROLLTON DRUGS, INC., d/b/a Carrollton Drugs;

BOWEN PHARMACY, LLC, d/b/a Bowen Pharmacy;

BALL GROUND PHARMACY, LLC, d/b/a Ball Ground 

Pharmacy;

BREN-MAK, LLC, d/b/a Corner Drugs;

HITCHCOCK RX, INC., d/b/a Jack's Discount Pharmacy;

LITTLE DRUG COMPANY, LLC, d/b/a Little Drug 

Company;

BROWN'S DRUG STORE, d/b/a Brown's Drug Store;

PARKHILL PHARMACY, INC., d/b/a Lopez Island 

Pharmacy;

ANKENY APOTHECARY, INC., d/b/a Medicap 

Pharmacy #8015;

PROFESSIONAL PHARMACY, LLC, d/b/a Professional 

Pharmacy;

DESERT SKY PHARMACY, LLC, d/b/a Desert Sky 

Pharmacy;

MT. VERNON COMMUNITY PHARMACY, INC.,

d/b/a The Medicine Shoppe, #0560;

BEDFORD PHARMACY, INC., d/b/a Bedford Pharmacy;

MEDSCENE, INC., d/b/a Crown Drugs;

DELCO PHARMACY, INC., d/b/a Delco Pharmacy;

LINSON PHARMACY LIMITED (S-Corp), d/b/a Linson 

Pharmacy;

TAMP, INC., d/b/a Pomarico's Pharmacy;

REDNER'S MARKETS, INC.,

d/b/a Redner's Pharmacy, Redner's Pharmacy #21,
4

Redner's Pharmacy #22, Redner's Pharmacy #23;

WASHCHKO'S PHARMACY, INC., d/b/a Waschko's 

Pharmacy

LARSEN SERVICE DRUG, INC.,

d/b/a Larsen Service Drug-New Town and Larsen Service 

Drug-Watford City;

KELLY KIDZ, d/b/a Kapler's Pharmacy;

8TH STREET PHARMACY, LLC, d/b/a 8th Street 

Pharmacy;

ACADEMY PHARMACY, LLC, d/b/a Academy 

Pharmacy;

BOUNT'S MUTUAL DRUGS, INC., d/b/a Blount's Mutual 

Drugs;

PUBLIC DRUG COMPANY; CHAPMAN 

HEALTHCARE PHARMACY, INC.;

CHELTEN DRUG INC.; COBB'S WESTSIDE 

PHARMACY, INC.;

CRITTENDEN'S DRUG, INC.; DAHLONEGA 

PHARMACY, INC.; 

DON'S PHARMACY, INC.; NEFF DRUGS 8, LLC;

FRIENDLY PHARMACY, INC.; FRIENDSHIP 

PHARMACY, INC.;

GLENDALE PRESCRIPTION CENTER, INC.;

GOOD PHARMACY, LLC; HEREFORD PHARMACY, 

INC.;

HANDI CAPABLE, INC.; BHS; PHARMACY CARE 

CENTERS, LLC; 

PHREDS DRUG, INC.; PROFESSIONAL PHARMACY 
5

OF OXFORD, LLC;

RANN PHARMACY, INC.; REESER'S PHARMACY, 

INC.;

SMITH BROTHERS DRUG COMPANY, INC.;

SOUTH END PHARMACY, INC.;

OLD BALTIMORE PIKE APOTHECARY, INC.;

SSJARS, INC.; TOTAL CARE RX, INC.;

BOYD'S PHARMACY OF BORDENTOWN, INC.;

BOYD'S PHARMACY OF FLORENCE, INC.;

CRYSTAL CITY APOTHECARY, LLC; GAYCO, INC.;

NOVA STAR PHARMACY, INC.; R W GROUP, INC.;

RIPLEY DRUG CO.;

SHIRLEY COURT PHARMACY, INC.; ADD, INC.; 

WAKEEM, INC.;

WALLY'S PHARMACY, INC.; WALTER'S 

PHARMACY, INC.;

BOYD'S PHARMACY OF MANSFIELD, INC.;

BOYD'S PHARMACY OF MEDFORD, INC.;

BOYD'S PHARMACY OF PEMBERTON, INC.; CABEL 

L. JONES, III;

COMMUNITY DRUG, INC.; MEG'S PHARMACY, INC.;

COLOSSEUM, INC.; DAMIANO PHARMACY (S-Corp)

DAVIS CUT RATE DRUGS, INC.; DR. IKE, INC.;

ESTERBROOK PHARMACY, LLC; BOBO DRUGS, 

INC.;

PHARMAKON, LLC; FUNK PHARMACY, INC.;

GATEWAY PHARMACY OF PHOENIXVILLE, INC.;

HARBOR DRUG, INC.; HEALTHY WAY PHARMACY, 
6

INC.;

NRX RX, INC.; PELELLA APOTHECARY, INC.; JBD, 

INC.;

HENRIETTA PHARMACY; 

HOLLYWOOD DISCOUNT PHARMACY, INC.;

BROWN & GOBIN, INC.;

LONOKE HEALTH & WELLNESS; MACE 

PHARMACY, INC.;

MALAND, INC.; MEDISAVE, INC.; LAMAR & 

SEYMOUR, LLC.;

MT. CARAMEL MEDICAL; NEWHARD PHARMACY, 

INC.;

SYL-MAX PHARMCARE, INC.; PEOPLES DRUG 

STORE; 

PHARMACY CARE, INC.; PHARMAHEALTH 

HAWTHORN, INC.;

PHILLIPS DRUGS, INC.; POINCIANA PHARMACY, 

LLC.;

POTTERVILLE PHARMACY, INC.; DAO PHARMACY, 

INC.;

PAUL REED ENTERPRISES, INC.(S-Corp);

QUIK-STOP PHARMACY OF BARLEY STN, INC.;

RICCIO FAMILY PHARMACY, INC.;

RINGS DRUGS, LTD.; MMRX HEALTHSOLUTIONS, 

INC.;

RX EXPRESS; ROCKWOOD PHARMACY;

S & S CORPORATION; SCHAEPER PHARMACY, 

INC.;
7

SEAWAY PHARMACY, PC.;

SHERMAN'S APOTHECARY PHARMACY, INC.,

d/b/a Sherman's Apothecary Pharmacy;

SMITH'S PHARMACY II, INC., Smith's Pharmacy II;

SMITH'S PHARMACY III, INC., d/b/a Smith's Pharmacy 

III;

SOUTHERN DISCOUNT DRUGS OF CHARLESTON, 

INC.,

d/b/a Southern Discount Drugs of Charleston;

MEDICINE SHOPPE, LTD, d/b/a Stephens Pharmacy;

REVRAC INDUSTRIES, INC., d/b/a Stony Point 

Pharmacy;

RICHARD L. BERRY PHARMACY, INC.,

d/b/a The Medicine Shoppe #1086 and The Medicine 

Shoppe#1759;

WILSON DRUG, INC., d/b/a Tillamook Pharmacy;

FLEMING PHARMACIST GROUP, INC.,

d/b/a Total Care Pharmacy#1 and Total Care Pharmacy #2;

GRANT PHARAMACIST GROUP, INC.,

d/b/a Total Care Pharmacy #3 and Total Care Pharmacy #4;

PENDLETON PHARMACIST GROUP, INC.,

d/b/a Total Care Pharmacy #5;

ROWAN PHARMACIST GROUP, INC.,

d/b/a Total Care Pharmacy #6 and total Care Pharmacy #7;

KL ARNOLD ENTERPRISE, INC.,

d/b/a West Point Pharmacy;

VISELS DRUG STORE, INC., d/b/a Visels Pharmacy;

JGBLA, INC., d/b/a West Hempstead Pharmacy;
8

RJ PROFESSIONALS, INC., d/b/a Young's Pharmacy;

RUDI PHARMACY, INC., d/b/a Philadelphian Pharmacy;

WALKER DRUG COMPANY, INC., d/b/a Walker Drug;

HARRIS PHARMACY, INC., d/b/a Harris Pharmacy;

NEFF DRUGS 5, LLC, d/b/a 18th Street Apothecary;

TANDONS ADVANCED PHARMACY, d/b/a Advanced 

Health Pharmacy;

CARIBBEAN PHARMACY, INC., d/b/a Caribbean 

Pharmacy;

CASTOR PHARMACY & SURGICAL SUPPLIES, LLC,

d/b/a Castor Pharmacy;

CENTRAL CITY FAMILY PHARMACY, INC.,

d/b/a Center Point Family Pharmacy;

CHRISTOFANO ASSOCIATES, LLC,

Hayden's Pharmacy 1 and Hayden's Pharmacy 2;

CIRCLE PHARMACY, LLC, d/b/a Circle Pharmacy;

CONDO, INC., d/b/a Condo Pharmacy;

COOKS PHARMACY OF KINGSTON, INC.,

d/b/a Cook's Pharmacy of Kingston;

CRESTWOOD PHARMACY, LLC,

d/b/a Crestwood Pharmacy;

DAKES DRUG STORE, INC., d/b/a Dakes Drug Store;

DOC'S DRUGS, LTD.;

ESCO DRUG COMPANY, INC., d/b/a Esco Drug;

FOREST HILLS PHARMACY, INC.,

d/b/a Forest Hills Pharmacy;

GETWELL PHARMACY CORP.,

d/b/a Getwell Pharmacy Corp.;
9

HOMETOWN VILLAGE PHARMACY, LLC,

d/b/a Hometown Village Pharmacy;

JOHNSON'S PHARMACY, 

d/b/a Johnson's Pharmacy of Hazelton;

KEYSTONE PHARMACY(S-CORP.), d/b/a Keystone 

Pharmacy;

KIM DO, INC., d/b/a M.R. Pharmacy;

MCNEILL FAMILY PHARMACY, INC.,

d/b/a Aston Pharmacy Home Health Center;

NEFF DRUGS 20, LLC, d/b/a Farmacia Rayo De Sol;

NEFF DRUGS 21, LLC, d/b/a Farmacia Sunray;

NEFF DRUGS, INC., d/b/a Baederwood Pharmacy;

NEFF MERION ENTERPRISES, INC., d/b/a Babis 

Pharmacy;

PHARMACY SHOP, INC., d/b/a Ed Snell's Pharmacy 

Shop;

RJ JOMICI, INC., d/b/a Jomici Apothecary;

RIAZ U RAHMAN, d/b/a Getwell Pharmacy;

INDEPENDENT RX, INC., d/b/a Olde Philly Pharmacy;

MIDDLETOWN CHEMISTS, INC., d/b/a NeighboRx 

Pharmacy;

MILLS FAMILY PHARMACY, LLC,

d/b/a Mills Family Pharmacy;

NEWPOINTE PHARMACY, LLC,

d/b/a Newpointe Pharmacy;

NICE PHARMACY, INC., d/b/a Nice Pharmacy;

PACKER APOTHECARY, INC., d/b/a Packer Apothecary

PAW PAW VILLAGE DRUG, d/b/a Paw Paw Village 
10

Pharmacy;

V.V. INC., d/b/a ND Pharmacy;

EKLUND DRUG, INC., d/b/a Preston's Pharmacy;

IGM, INC., d/b/a Rapoport Pharmacy;

NEFF DRUGS 12, LLC,

d/b/a Sunray Drugs 56th&Market Street;

NEFF DRUGS 6, LLC,

d/b/a Sunray Drugs Baltimore Avenue;

NEFF DRUGS, 11, LLC,

d/b/a Sunray Drugs 60th Street;

OPIERX, INC., d/b/a S& B Drugs;

PROFESSIONAL PHARMACY AND CONVALESCENT 

PRODUCTS, LTD,

d/b/a Professional Pharmacy;

RAMON PHARMACY, INC., d/b/a Ramon Pharmacy;

RESOLUTION RX, INC., d/b/a Resolutin Rx;

RINGS DRUG, LTD, d/b/a Rings Drug;

SAMUEL J ROBINSON PHARMACY, INC.,

d/b/a SJ Robinson Pharmacy;

SHEEANS PHARMACY, INC., d/b/a Sheeans Pharmacy;

SUNRAY DRUGS, LLC, d/b/a Sunray Drugs;

TWO FISHES, INC., d/b/a Roger's Family Pharmacy;

DANIEL RAIF, INC., d/b/a The Medicine Shoppe#0188;

GRIFFIN DRUGS, INC., d/b/a Thrift Drugs;

KARWASKI PHARMACY, INC.,

d/b/a The Medicine Shoppe-Dallas (#1251);

NEFF DRUGS 13, LLC, d/b/a Sunray Drugs Chestnut 

Plaza;
11

PHC PHARMACIES, INC., d/b/a The Medicine 

Shoppe#1330

and The Medicine Shoppe#1397;

SLV PHARMACY, INC., d/b/a Valley Pharmacy & 

Surgical Supplies;

SSV PHARMACY, LLC, d/b/a The Medicine 

Shoppe#1404;

SCHROPP PHARMACY, INC.,

d/b/a The Medicine Shoppe #0146;

SHIRLEY COURT PHARMACY, INC.,

d/b/a Upper Darby Family Pharmacy;

THE ROBBINS PHARMACY (S-CORP),

d/b/a The Robbins Pharmacy;

CLLAMP CO., INC., d/b/a Medicap Pharmacy#8213;

FAIRMOUNT PHARMACY SERVICES, INC.,

d/b/a Fairmount Pharmacy Services;

FOREST HILLS PHARMACY, INC., d/b/a FHP 

Pharmacy Services;

GRANITE STATE PHARMACY, LLC, d/b/a Granite 

State Pharmacy;

HEALTH SPECTRUM, d/b/a Wonder Drug;

HUSACK HOLDINGS, JPL, d/b/a The Medicine ShoppeBerwick;

J.B.M. INC., d/b/a Village Pharmacy At Springhouse;

JJM ENTERPRISES, INC., d/b/a Gem Pharmacy;

KEDO, LLC, d/b/a Valumed Pharmacy-Coralville;

MADSEN, INC., d/b/a Medicap Pharmacy; #8019;

MEDCARE LTC, LLC, d/b/a Medcare LTC;
12

NEFF DRUGS 22, LLC, d/b/a Village Shires Pharmacy;

SPRINGFIELD PHARMACY, INC., d/b/a Village 

Pharmacy(Queens Village);

SUGAR RIVER PHARMACY, LLC, d/b/a Sugar River 

Pharmacy;

THE MEDICINE SHOPPE,

d/b/a The Medicine Shoppe-Jeffersonville and

The Medicine Shoppe-Munhall;

WARNER PHARMACY, INC., d/b/a Warner Pharmacy;

WEST VILLAGE PHARMACY, INC.,

d/b/a West Village Pharmacy;

BOWSER CORPORATION, d/b/a Shankel's Pharmacy;

CLAYWELL, INC., d/b/a Medica Pharmacy & Wellness

Center and Medica Pharmacy Bloomfield;

CLINIC PHARMACY, LLC, d/b/a Clinic Pharmacy;

EVANS CITY DRUG STORE, INC.,

d/b/a Evans City Drug Store;

FAIRMOUNT PHARMACY, INC., d/b/a Fairmount 

Pharmacy;

G&R INC., CORP, d/b/a Malheur Drug II

GFJ, INC., d/b/a Broken Arrow Family Drug and

Broken Arrow Family Drug#2;

HIDENWOOD PHARMACY, INC., d/b/a Hidenwood 

Pharmacy;

KST GROUP, LLC, d/b/a Valumed Pharmacy-Sioux City;

KAPAA PHARMACY (S-Corp), d/b/a Kapaa Pharmacy;

LIHUE PHARMACY (S-CORP), d/b/a Lihue Pharmacy 

Group;
13

M.D. CO., INC., d/b/a M.D. Pharmacy;

MELROSE PHARMACY, LLC, d/b/a Melrose Pharmacy;

MILLERSBURG PHARMACY, INC., Millersburg 

Pharmacy;

PACIFIC HEALTH MANAGEMENT, LLC,

d/b/a Lihue Professional Pharmacy;

PHARMACY CONSULTANT SERVICES, INC., d/b/a 

Turner Drug;

ROCKY TOP PHARMACY, INC., d/b/a Longley 

Pharmacy;

ROYER PHARMACY, INC.;

SANO VITO, INC. (S.CORP), d/b/a Rivergate Pharmacy;

SHELTONS PHARMACY, INC., d/b/a A Village 

Pharmacy;

SUMPTER PHARMACY, INC., d/b/a Sumpter Pharmacy 

& Wellness;

TAYLOR DRUG OPERATING SERVICES, INC.,

d/b/a Taylor Drug Operating Services;

THE MEDICINE CENTER, LLC, d/b/a The Medicine 

Center;

BLUEGRASS RX, LLC, d/b/a Bluegrass Pharmacy;

BROAD & GRANGE, INC., d/b/a Broad & Grange 

Pharmacy;

BROAD & LEHIGH PHARMACY, INC., d/b/a Broad & 

Lehigh Pharmacy;

CHOICE FAMILY PHARMACY, INC., d/b/a Choice 

Family Pharmacy;

ELU, INC., d/b/a Point Breeze Pharmacy;
14

EAST BERLIN PHARMACY, INC., d/b/a East Berlin 

Pharmacy;

FAMILY PHARMACY PROFESSIONAL 

ASSOCIATION,

(Sub S Corp.), d/b/a Family Pharmacy P.A.;

FINO'S PHARMACY, LLC, d/b/a Fino's Pharmacy-Dallas;

GREATER FALLS PHARMACY, INC.,

d/b/a Greater Falls Pharmacy;

HEALME, INC., d/b/a Hometown;

HERITAGE PHARMACY, INC., d/b/a Heritage 

Pharmacy;

HOWES PHARMACY, LLC, d/b/a Howes Pharmacy;

KB PHARMACY, LLC, d/b/a Grafton Drug;

MATSTE, INC., d/b/a Hometown Pharmacy-Brookfield;

MED-FAST PHARMACY, INC.;

MILAN PHARMACY, INC., d/b/a King Pharmacy;

KRYNICKI, INC., d/b/a Hometown Pharmacy-Dierkens;

TADEK, INC., d/b/a Hometown Pharmacy-Cornersburg

and Hometown Pharmacy-Struthers;

TADMAR, INC., d/b/a Hometown Pharmacy-Girard;

CMV PHARMACY, INC., d/b/a Manlius Pharmacy;

HEIN-LUN, INC., d/b/a Neff Surgical Pharmacy;

LION PHARMACY, INC., d/b/a Lion Pharmacy;

MARYSIA, INC., d/b/a Hometown Pharmacy-Harmony;

NEWTKO, INC.; d/b/a Port Allegheny Pharmacy;

NORLAND AVENUE PHARMACY, LLC,

d/b/a Norland Avenue Pharmacy;

OAK LANE PHARMACY, INC., d/b/a Oak Lane 
15

Pharmacy;

PATTERSON FAMILY PHARMACY, INC.,

d/b/a Patterson Family Pharmacy;

RX EXPRESS PRESCRIPTION SERVICES, INC.,

d/b/a Rx Express Prescription Services;

RICHLANDS PHARMACY ASSOCIATES,

d/b/a Richalands Pharmacy;

SAV-MOR PHARMACY, INC., d/b/a Sav-Mor Pharmacy;

ST. MARY'S PHARMACY, INC., d/b/a St. Mary's 

Pharmacy;

Stemat, INC., d/b/a Hometown Pharmacy-New Castle;

STONEWOOD VILLAGE PHARMACY, INC.,

d/b/a Stonewood Village Pharmacy;

WANDAROO, INC.;

CITY DRUGS CO OF JEFFERSON TX, d/b/a City Drug;

FRANKLIN SQUARE PHARMACY, INC.,

d/b/a Franklin Square Pharmacy;

KULER DRUGS, LLC, d/b/a Med Depot Pharmacy;

LEHAN DRUGS, INC., d/b/a Lehan Drugs;

LUKE'S FAMILY PHARMACY, d/b/a Luke's Family 

Pharmacy;

MATTHEWSON DRUG CO., INC., d/b/a Matthewson 

Drug Co.;

NEFF DRUGS 9, LLC, d/b/a Sunray Drugs Progress Plaza;

PINE STREET PHARMACY, d/b/a Stacy's Family 

Pharmacy;

PURDY PHARMACY, INC., d/b/a Purdy Costless Rx;

RJMTZ PHARMACY, LLC, d/b/a The Pharmacy Corner;
16

RX SHOPS, INC., d/b/a Hometown Pharmacy;

READINGS COMMUNITY PHARMACY, INC., d/b/a 

R&R Pharmacy;

S&R DRUG CO. (S-Corp), d/b/a S&R Drug Co.;

SAN JUAN PHARMACY, INC., d/b/a San Juan 

Pharmacy;

THE COUNTRY SQUIRE DISCOUNT PHARMACY, 

INC.,

d/b/a The Country Squire Discount Pharmacy;

URBAN SPECIALTY PHARMACY, LLC,

d/b/a Urban Specialty Pharmacy;

S&B HEALTH SYSTEMS, LLC,

d/b/a West Cocoa Pharmacy & Compounding;

DAVID J. GREENLEE, d/b/a Ross Grant Avenue 

Pharmacy;

JAK PHARMA, INC., d/b/a Arthur Avenue Pharmacy;

JEN PHARMA, INC., d/b/a Summer Ave Pharmacy;

MEDICAP SPECIALTY SERVICES, d/b/a Medicap 

Specialty Services;

NEFF DRUGS 23 LLC, d/b/a Allegheny Apothecary;

NEFF DRUGS 24, LLC, d/b/a Holmesburg Pharmacy;

STAR PHARMACY SERVICES, INC., d/b/a Paoli 

Pharmacy;

UNIVERSITY PHARMACY, INC., d/b/a University 

Pharmacy;

VIJAN PHARMA, INC., d/b/a Sure Drugs;

ESTATE OF THEODORE BILLINGER

Brent Billinger, Personal Representative;
17

v.

OPTUMRX, successor by merger to Catamaran 

Corporation,

Appellant

_______________________

On Appeal from the United States District Court 

for the Middle District of Pennsylvania 

District Court No. 3-17-cv-01102

District Judge: The Honorable Malachy E. Mannion

__________________________

Argued March 3, 2022

Before: McKEE, AMBRO, and SMITH, Circuit Judges

(Filed: August 4, 2022)

Lucas C. Townsend ARGUED

Gibson Dunn & Crutcher

1050 Connecticut Avenue, N.W.

Washington, DC 20036

Counsel for Appellant

Mark R. Cuker ARGUED

Suite 1120
18

2005 Market Street

Philadelphia, PA 19103

Counsel for Appellee

__________________________

OPINION OF THE COURT

__________________________

SMITH, Circuit Judge.

Over 400 pharmacies joined forces in a lawsuit

against OptumRX (Optum), a pharmacy benefits manager, 

alleging breaches of contract and breaches of duties of 

good faith and fair dealing, together with violations of 

certain state statutes. Pointing to arbitration agreements 

found in various contracts covering almost all of those

pharmacies, Optum moved to compel arbitration. The 

pharmacies opposed the motion, arguing that compelling 

arbitration would be unconscionable. The District Court 

agreed with the pharmacies, and Optum timely appealed.

We conclude that the District Court erred by 

applying the wrong standard in ruling on Optum’s motion. 

Per Guidotti v. Legal Helpers Debt Resolution, LLC, 716 

F.3d 764 (3d Cir. 2013), the District Court—after 

concluding the pharmacies brought forth sufficient facts to 

place the arbitration agreements in question—should have 

allowed discovery limited to the question of arbitrability 

and then provided Optum an opportunity to renew its 
19

motion. It did neither. We will therefore vacate in part the 

District Court’s order denying Optum’s motion to compel 

arbitration and remand with instructions.

I. Facts & Procedural History

Optum is a pharmacy benefits manager (PBM)

responsible for administering prescription drug programs 

on behalf of health-insurance plans. Optum and its 

predecessors1entered into 41 contracts with, in total, over 

400 pharmacies.

2

 Twenty of the pharmacies negotiated 

their contracts with Optum directly; others used

bargaining agents known as pharmacy services 

administrative organizations (PSAOs). Each of these 

contracts consists of two documents that refer to, and 

incorporate, each other. The first is the Provider Manual,

which covers, inter alia, claim submission, pricing, and 

provider audits. The contents of the Provider Manual do 

not vary across the many contractual relationships. Then,

there are the Provider Agreements, which are specific to 

1 The contracts at issue in this appeal are, in some instances,

between pharmacies and other PBMs, which later merged into 

Optum. It is, however, undisputed that Optum is the proper 

party for each of the contracts. 

2 Up to nine pharmacies’ relationships with Optum are 

governed by contracts that Optum is unable to locate. So these 

pharmacies were not included in the motion to compel 

arbitration, and their contracts are not among the 41 contracts 

described herein. 
20

their signing parties and which address matters such as 

pharmacy responsibilities and reimbursement rates. But 

while each contract consists of these two documents, the 

pharmacies allege that only those pharmacies that 

negotiated with Optum directly received copies of their 

Provider Agreements. 

The pharmacies banded together and, in June 2017,

brought a mass action in the United States District Court 

for the Middle District of Pennsylvania. They alleged that 

Optum: (1) paid them less than they were due under their 

contracts; (2) breached its duties of good faith and fair 

dealing; and (3) violated certain state statutes. In early 

2018, Optum moved to compel arbitration of all but nine 

pharmacies’ claims,3relying on arbitration provisions 

within the Provider Agreements.4 Each pharmacy that 

3 Optum concedes that these nine pharmacies are not subject to 

arbitration. 

4 Optum also sought outright dismissal of all pharmacies’ 

claims. Generally, per Optum’s motion, the pharmacies failed 

to state a claim for which relief could be granted. Additionally, 

the District Court, again per Optum’s motion, would lack 

subject matter jurisdiction over those pharmacies that were not 

subject to arbitration agreements if arbitration were to be 

compelled for the other pharmacies. The District Court 

granted Optum dismissal, in part, for failure to state a claim but 

denied as moot the request to dismiss for lack of subject matter

jurisdiction. These aspects of the District Court’s ruling are 

not presently before us. 
21

negotiated through PSAOs opposed arbitration as 

procedurally unconscionable on grounds that the 

arbitration provisions were contained in their Provider 

Agreements and that those Provider Agreements were 

unavailable to them at all relevant times. The pharmacies

that negotiated directly with Optum did not initially 

oppose the motion but did so later, advancing a theory of 

substantive unconscionability. 

Three years after Optum filed its motion to compel 

arbitration, the District Court denied the motion in full.

The Court held that “compelling [the pharmacies] to 

proceed with arbitration in this matter would be 

procedurally unconscionable” because Optum 

“prohibit[ed] PSAOs from giving the Provider Agreement 

to the individual pharmacies . . . , making it impossible for 

the pharmacies to have any knowledge of the arbitration 

agreement.” Dist. Ct. Op., App’x at 10–13. Optum timely 

appealed.

II. Jurisdiction

Always, this Court’s “first and fundamental 

question is that of jurisdiction.” Steel Co. v. Citizens for a 

Better Env’t, 523 U.S. 83, 94 (1998) (quoting Great S. Fire 

Proof Hotel Co. v. Jones, 177 U.S. 449, 453 (1900)). The 

establishment of jurisdiction is “a threshold matter,” and 

without it “the court cannot proceed at all.” Id. (quoting 

Ex Parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868)). 
22

We thus raised, sua sponte,

5

the question of whether 28 

U.S.C. § 1332(d)(11) gives district courts subject matter

jurisdiction over mass actions that were brought originally 

in federal court as opposed to those that were removed 

from state court. 

A. Background on Mass Actions

Because the mass action is less common than other 

forms of aggregate litigation—namely the Rule 23 class 

action and the Fair Labor Standards Act opt-in collective

action—we begin with a look at just what it is and how the 

device came to be. Congress created the mass action in 

2005, when it passed the Class Action Fairness Act 

(CAFA), a mostly jurisdictional statute. That legislation 

“provid[ed] for Federal court consideration of interstate 

cases of national importance under diversity jurisdiction” 

in an effort to minimize state and local courts’ “[a]buses 

in class actions undermin[ing] the national judicial 

system.” Pub L. No. 109-2, § 2(a)(4) & 2(b)(2), 119 Stat. 

4 (2005). Through CAFA, Congress “ma[de] it easier both 

for plaintiffs to establish federal jurisdiction in original 

federal class actions and for defendants to remove class 

actions from the state courts.” Emery G. Lee III & 

5 Optum challenged whether 28 U.S.C. § 1332(d)(11) provided 

subject matter jurisdiction before the District Court in its reply 

brief in support of its motion. The District Court did not, 

however, address its jurisdiction, nor did Optum reassert its 

challenge before us. 
23

Thomas E. Willging, The Impact of the Class Action 

Fairness Act on the Federal Courts: An Empirical 

Analysis of Filings and Removals, 156 U. PA. L. REV.

1723, 1734 (2008). But “CAFA’s legislative sponsors 

realized that CAFA’s core class action provisions would 

not comprehensively reach all problematic state court 

complex litigation” because most states permitted largescale aggregation of claims through joinder or other 

procedural mechanisms. Linda S. Mullenix, Class Actions 

Shrugged: Mass Actions and the Future of Aggregate 

Litigation, 32 REV. LITIG. 591, 606 (2013). For example, 

two states did not provide for class-action litigation at the 

time of CAFA’s enactment and allowed collective 

litigation only through non-class joinder and consolidation 

rules. Id. at 606 & n.53. Consequently, “CAFA’s drafters 

feared that large-scale state litigation—deemed mass 

actions and brought under non-class joinder and 

consolidation rules—would evade CAFA’s removal 

provisions simply because [such] litigation was not 

pursued under class action rules.” Id. at 606–07. 

So Congress included mass-action provisions in 

CAFA. The Act defined a mass action as 

any civil action (except a civil action within 

the scope of section 1711(2)) in which 

monetary relief claims of 100 or more 

persons are proposed to be tried jointly on the 

ground that the plaintiffs’ claims involve 

common questions of law or fact, except that 
24

jurisdiction shall exist only over those 

plaintiffs whose claims in a mass action 

satisfy the jurisdictional amount 

requirements under [§ 1332(a)].

28 U.S.C. § 1332(d)(11)(B)(i). In essence, mass actions 

are collective actions that utilize large-scale joinder or 

other consolidation mechanisms rather than class 

certification pursuant to Rule 23. For this reason, “a mass 

action has no representative or absent members,” and is 

“more akin to an opt-in than it is to a class action.” 

Abraham v. St. Croix Renaissance Grp., L.L.L.P., 719 

F.3d 270, 272 n.1 (3d Cir. 2013); see also Mississippi ex 

rel. Hood v. AU Optronics Corp., 571 U.S. 161, 173–74

(2014) (rejecting a purported mass action consisting of 1

named plaintiff and 100 or more unspecified individuals). 

But still, the Senate Judiciary Committee described mass 

actions as “class actions in disguise.” S. Rep. No. 109-14 

(2005). Accordingly, mass actions are deemed to be class 

actions removable under 28 U.S.C. § 1332(d)(2)–(10) if 

they otherwise meet the provisions of those paragraphs.6 

28 U.S.C. § 1332(d)(11)(A). 

6 As the Ninth Circuit has noted, “[s]ome of these provisions 

in § 1332(d)(2)–(10), however, make no sense in the context 

of a mass action.” Abrego Abrego v. Dow Chem. Co., 443 F.3d 

676, 680 n.6 (9th Cir. 2006) (per curiam).
25

B. Mass-Action Jurisdiction

Surprisingly, whether the district courts may

exercise original jurisdiction over mass actions is 

unsettled. Section 1332(d)(2) grants original jurisdiction 

over certain class actions.7 And Section 1332(d)(11)(A) 

states that a mass action is “deemed to be a class action 

removable under” paragraphs (d)(2) through (10) if it 

otherwise meets the conditions of those paragraphs.

8

 The 

question presented here is whether district courts have 

jurisdiction over mass actions brought originally before 

them through paragraph (2), or whether they have 

jurisdiction over only mass actions which are removed 

from state court by defendants pursuant to paragraph (11).

Optum urges us to hold that the District Court 

lacked original jurisdiction. In doing so, Optum advances

four arguments: (1) the plain text of CAFA makes clear 

that mass actions are only removable to federal courts but 

7 Section 1332(d)(2) relevantly provides: “The district courts 

shall have original jurisdiction of any civil action in which the 

matter in controversy exceeds the sum or value of $5,000,000, 

exclusive of interest and costs, and is a class action in which [] 

any member of a class of plaintiffs is a citizen of a State 

different from any defendant . . . .”

8 Section 1332(d)(11)(A) provides: “For the purposes of this 

subsection and section 1453, a mass action shall be deemed to 

be a class action removable under paragraphs (2) through (10) 

if it otherwise meets the provisions of those paragraphs.”
26

that this action originated in federal court; (2) purpose 

statements within CAFA and its legislative history show 

that Congress did not intend to provide original 

jurisdiction over mass actions; (3) courts and scholars 

have doubted that CAFA provides original jurisdiction 

over mass actions; and (4) there is no alternate basis for 

subject matter jurisdiction if the Court agrees with 

Optum’s interpretation of § 1332(d)(11). 

The pharmacies urge us to reach the opposite

conclusion. First, they insist that we adopt the reasoning 

of district courts that have recognized the availability of

original jurisdiction of mass actions under 28 U.S.C. 

§ 1332(d)(11). They then insist that, “should this Court 

determine an ambiguity exists with respect to the scope of 

jurisdiction authorized by 1332(d)(11), the legislative 

history and intent of CAFA require that this ambiguity be 

resolved in favor of federal courts having original 

jurisdiction.” Pharmacies Supp. Br. at 1. Alternatively, 

the pharmacies ask that the Court dismiss the three nondiverse plaintiffs that prevent use of standard diversity 

jurisdiction. 

Our “primary purpose in statutory interpretation is 

to discern legislative intent.” Morgan v. Gay, 466 F.3d 

276, 277 (3d Cir. 2006). And in so doing, we must begin 

with the statute’s text. Ross v. Blake, 578 U.S. 632, 638 

(2016). “If the statute’s plain language is unambiguous 

and expresses Congress’s intent with sufficient precision, 

we need not look further.” Douglass v. Convergent 
27

Outsourcing, 765 F.3d 299, 302 (3d Cir. 2014) (alteration 

adopted) (quoting In re Lord Abbett Mut. Funds Fee Litig., 

553 F.3d 248, 254 (3d Cir. 2009)). But on occasion, plain

and unambiguous language ends up stating what was not 

Congress’s intent. In these instances, “we are obligated to 

‘construe statutes sensibly and avoid constructions which 

yield absurd or unjust results.’” Id. (quoting United States 

v. Fontaine, 697 F.3d 221, 227 (3d Cir. 2012)); see also 

United States v. Am. Trucking Ass’ns, Inc., 310 U.S. 534, 

543 (1940) (“[E]ven when the plain meaning did not 

produce absurd results but merely an unreasonable one 

‘plainly at variance with the policy of the legislation as a 

whole’ this Court has followed that purpose rather than the 

literal words.” (footnote omitted) (quoting Ozawa v. 

United States, 260 U.S. 178, 194 (1922))); Morgan, 466 

F.3d at 278 (quoting United States v. Ron Pair Enters., 

Inc., 489 U.S. 235, 242 (1989)).

CAFA includes the following relevant provisions: 

CAFA § 2(a)(4)(A)—

Congress finds th[at] . . . [a]buses in class 

actions undermine the national judicial 

system, the free flow of interstate commerce, 

and the concept of diversity jurisdiction as 

intended by the framers of the United States 

Constitution, in that State and local courts are 

[] keeping cases of national importance out of 

Federal court;
28

CAFA § 2(b)—

The purposes of [CAFA] are to [] assure fair 

and prompt recoveries for class members 

with legitimate claims[,] restore the intent of 

the framers of the United States Constitution 

by providing for Federal court consideration 

of interstate cases of national importance 

under diversity jurisdiction[,] and benefit 

society by encouraging innovation and 

lowering consumer prices;

CAFA § 4(a)(2) (codified at 28 U.S.C. § 1332(d)(2)

(A))—

The district courts shall have original 

jurisdiction of any civil action in which the 

matter in controversy exceeds the sum or 

value of $5,000,000, exclusive of interest and 

costs, and is a class action in which [] any 

member of a class of plaintiffs is a citizen of 

a State different from any defendant;

CAFA § 4(a)(2) (codified at 28 U.S.C. § 1332(d)

(11)(A))—

For purposes of this subsection and section 

1453, a mass action shall be deemed to be a 

class action removable under paragraphs (2) 

through (10) if it otherwise meets the 

provisions of those paragraphs;
29

CAFA § 4(a)(2) (codified at 28 U.S.C. § 1332(d)

(11)(C)(i))—

Any action(s) removed to Federal court 

pursuant to this subsection shall not 

thereafter be transferred to any other court . . . 

unless a majority of the plaintiffs in the action 

request transfer . . .; and

CAFA § 4(a)(2) (codified at 28 U.S.C. § 1332(d)

(11)(D))—

The limitations periods on any claims 

asserted in a mass action that is removed to 

Federal court pursuant to this subsection shall 

be deemed tolled during the period that the 

action is pending in Federal court.

Optum and the pharmacies seem to agree that 28 

U.S.C. § 1332(d)(2) provides that district courts have 

CAFA original jurisdiction only over civil actions that are 

class actions, but they disagree as to when mass actions 

are class actions per 28 U.S.C. § 1332(d)(11)(A) and thus 

fall within that grant of original jurisdiction. Optum 

argues that mass actions are deemed class actions only for 

removal purposes. The pharmacies, on the other hand, 

argue that mass actions are deemed class actions generally. 
30

Optum and the pharmacies both advance readings 

of § 1332(d)(11) that are plausible,

9 but neither reading 

can be characterized as clearly correct. By Optum’s 

reading, mass actions would not be class actions within 

district courts’ original jurisdiction because mass actions 

are only class actions when “removable under paragraphs 

(2) through (10).”10 This reading, however, raises as many 

9 Given that the text can be read several ways, it is not 

surprising that relevant treatises reveal a split on the question. 

Compare Wright & Miller § 3601 (“[CAFA] provides the 

federal courts with original jurisdiction over a class or mass 

action when . . . .”) with 2 Newberg on Class Actions § 6:24 

(“[CAFA] does not enable original jurisdiction over mass 

actions; it only states that such actions are subject to 

removal.”). These contrasting views betray both sides’ claims 

that the scholarly literature decisively favors their respective 

positions. 

10 Optum also argues that other subparagraphs suggest that all 

of § 1332(d)(11) was focused only on removal. We find no

support for that position in the language of those 

subparagraphs. The emphasis on removed actions in 

§ 1332(d)(11)(C)(i) would make sense regardless of whether 

original jurisdiction was granted because transferability is less 

of a concern where the plaintiffs chose which court would 

ultimately hear their claims. And § 1332(d)(11)(D)’s emphasis 

on removed actions would also make sense regardless of 

whether original jurisdiction was granted because mass-action 

jurisdiction “exist[s] only over those plaintiffs whose claims in 

a mass action satisfy the jurisdictional amount requirements,”

28 U.S.C. § 1332(d)(11)(B)(i), and courts sometimes dismiss 
31

questions as it answers because paragraphs (2) through 

(10) do not concern removal. Paragraph (11) is prefaced 

by language of applicability to subsection (d) and to

section 1453, and section 1453 provides that class actions 

are removable pursuant to section 1446.11 So deeming a 

mass action a class action if it otherwise meets the 

provisions of paragraphs (2) through (10) would make it 

removable—but under section 1453, not under paragraphs 

(2) through (10). More importantly, because section 1453 

is the basis for removal, what other purpose would 

Congress have had in treating mass actions as class actions

under subsection (d) if not to establish original 

jurisdiction? 

dispensable parties that would defeat jurisdiction, Federal Rule 

of Civil Procedure 21. So unlike those brought originally in 

federal court, tolling statutes of limitations is necessary for 

removed actions.

11 Section 1446 provides that “[a] defendant or defendants 

desiring to remove any civil action from a State court shall file 

in the district court of the United States for the district and 

division within which such action is pending a notice of 

removal . . . containing a short and plain statement of the 

grounds for removal.” And section 1453(b) provides that, in 

general, “[a] class action may be removed to a district court of 

the United States in accordance with section 1446 . . . without 

regard to whether any defendant is a citizen of the State in 

which the action is brought, except that such action may be 

removed by any defendant without the consent of all 

defendants.”
32

As for the pharmacies’ reading, mass actions could 

be generally deemed class actions for purposes of 

subsection (d) and section 1453. Such a reading would 

provide district courts with original jurisdiction through 

§ 1332(d)(2). Yet if we interpret the language that way, 

we are left with the extraneous and unexplained 

“removable under” language. Interpreting § 1332(d)(11) 

in a manner that ignores parts of its text—as both Optum 

and the pharmacies ask us to do—would “violat[e] the 

cardinal rule that, if possible, effect shall be given to every 

clause and part of a statute.” RadLAX Gateway Hotel, 

LLC v. Amalgamated Bank, 566 U.S. 639, 645 (2012) 

(quoting D. Ginsberg & Sons, Inc. v. Popkin, 285 U.S. 

204, 208 (1932)).

We express the same frustrations as have two of our 

sister circuits as we attempt to make sense of CAFA’s 

mass-action provisions. See Abrego Abrego v. Dow Chem. 

Co., 443 F.3d 676, 680–82 (9th Cir. 2006) (per curiam); 

Lowery v. Ala. Power Co., 483 F.3d 1184, 1200 n.41 (11th 

Cir. 2007). In calling the drafting of the relevant 

subsection “clumsy,” the Ninth Circuit also observed:

Congress’s use of the word “removable” in 

the text of § 1332, a statute establishing 

original jurisdiction, blurs what had 

previously been a clear distinction between 

jurisdiction and removal statutes, and thus 

obscures the reach of jurisdiction over mass 

actions. Because Congress did not refer to 
33

original jurisdiction in either the mass action 

provision itself, or in § 1453, the text does not 

answer the important question of when there 

is original federal jurisdiction over mass 

actions, and what the scope of that original 

jurisdiction might be.

Abrego Abrego, 443 F.3d at 682. The Eleventh Circuit 

went beyond the Ninth’s use of the word “clumsy”: 

“CAFA’s mass action provisions present an opaque, 

baroque maze of interlocking cross-references that defy 

easy interpretation, even though they are contained in a 

single paragraph . . . .” Lowery, 483 F.3d at 1198 (footnote 

omitted). In a different context, and without mentioning 

the “removable under” language, Lowery took the position 

that mass actions are generally deemed class actions. Id.

at 1199. But the Lowery Court nevertheless concluded

that “[i]t is not clear . . . whether a group of plaintiffs who, 

choosing not to certify as a class, but otherwise meeting 

the requirements for a mass action, would be permitted to 

file a mass action originally in a district court.” Id. at 1200 

n.41. So while both the Ninth and Eleventh Circuits

recognized that Congress was not clear about conferring 

on district courts jurisdiction over mass actions, neither 

court needed to resolve the issue in the case before it. 
34

Looking beyond the CAFA provisions that made 

their way into the United States Code12 does make our task

easier. See King v. Burwell, 576 U.S. 473, 492 (2015) (“A 

provision that may seem ambiguous in isolation is often 

clarified by the remainder of the statutory scheme . . . 

because only one of the permissible meanings produces a 

substantive effect that is compatible with the rest of the 

law.” (alteration in original) (quoting United Sav. Ass’n of 

Tex. v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 

365, 371 (1988)). A statutory statement of purpose is “an 

appropriate guide to the meaning of the statute’s operative 

provisions.” Gundy v. United States, 139 S. Ct. 2116, 

2126–27 (2019) (interpreting a provision in light of its 

purpose statement); see also POM Wonderful LLC v. 

Coca-Cola Co., 573 U.S. 102, 106–07 (2014) (interpreting 

the Lanham Act in light of its “detailed statement of the 

statute’s purposes”). In CAFA itself, Congress found that 

“keeping cases of national importance out of Federal 

court” was “undermin[ing] the national judicial system, 

the free flow of interstate commerce, and the concept of 

diversity jurisdiction as intended by the framers of the 

United States Constitution.” CAFA § 2(a)(4)(A). So 

12 Section 2 of CAFA contains the findings of Congress and a 

statement regarding the Act’s purposes. This section was not

formally codified within the United States Code, though it is 

included as a Note appended to 28 U.S.C. § 1711. Regardless, 

it is part of the law. See U.S. Nat’l Bank of Or. v. Indep. Ins. 

Agents of Am., Inc., 508 U.S. 439, 448 (1993) (concluding that 

a provision omitted from the Code is valid law).
35

Congress enacted CAFA for the explicit purpose of 

“restor[ing] the intent of the framers of the United States 

Constitution by providing for Federal court consideration 

of interstate cases of national importance under diversity 

jurisdiction.” CAFA § 2(b); see also Std. Fire Ins. Co. v. 

Knowles, 568 U.S. 588, 595 (2013) (mentioning CAFA’s 

“primary objective”). 

Congress’s explicit purpose in enacting CAFA 

supports a conclusion that the District Court had original 

jurisdiction here. Congress sought to “provid[e] for 

Federal court consideration of interstate cases of national 

importance under diversity jurisdiction.” CAFA § 2(b)(2).

It would seem, then, passing strange to construe 

ambiguous language as preventing a plaintiff from asking

a federal court to consider an interstate case of national 

importance pursuant to diversity jurisdiction. True, 

Congress’s mention of removal without any mention of 

original jurisdiction could tend to imply an intent not to 

provide original jurisdiction. But because the statutory 

purpose suggests that the inclusion of removal jurisdiction 

was not done to the exclusion of original jurisdiction, that

implication does not attach. See Burns v. United States, 

501 U.S. 129, 136 (1991) (“An inference drawn from 

congressional silence certainly cannot be credited when it 

is contrary to all other textual and contextual evidence of 

congressional intent.”), abrogated on other grounds by 

Booker v. United States, 543 U.S. 220 (2005). And since

Congress’s animating concern was state and local courts’ 

tendency to keep class actions for themselves, when 
36

examined in light of CAFA’s statement of purpose, the 

text of § 1332(d)(11) is best read as ensuring that 

qualifying mass actions—like class actions—are not being 

kept from the federal courts. See Burwell, 576 U.S. at 492. 

For that reason, we interpret § 1332(d)(11) as deeming all 

mass actions that comport with the requirements of 

paragraphs (2) through (10) to be class actions within 

§ 1332(d)(2)’s grant of original jurisdiction. 

Having settled upon a permissible meaning of 

§ 1332(d)(11) that produces a substantive effect 

compatible with the purpose of CAFA, we have no 

occasion to rely on legislative history. See Mohamad v. 

Palestinian Auth., 566 U.S. 449, 459 (2012); see also In re 

Trump Ent. Resorts, 810 F.3d 161, 168 (3d Cir. 2016) 

(noting that legislative history should only be relied on “as 

a last resort”). We have on occasion, however, checked

our work by looking to it. See G.L. v. Ligonier Valley Sch. 

Dist. Auth., 802 F.3d 601, 621–22 (3d Cir. 2015) 

(“[L]egislative history can play a confirmatory role in 

resolving ambiguity when statutory language and structure 

support a given interpretation.”). We do so here and

conclude that the legislative history supports our 

interpretation of the statutory language. The Senate 

Judiciary Committee Report, for example, states that, 

under § 1332(d)(11), a mass action “will be treated as a 

class action for jurisdictional purposes. Thus, if such a 

civil action met the other diversity jurisdictional 

prerequisites set forth for class actions in this legislation, 

that civil action would be subject to federal jurisdiction.” 
37

S. Rep. No. 109-14 at 46 (2005). It further states that 

§ 1332(d)(11) “expands federal jurisdiction over mass 

actions.” Id. While neither of these statements explicitly 

states that original jurisdiction will expand, it is equally 

true that neither says only removal jurisdiction will 

expand. We will not read qualifying language into a 

statement that contains none; had Congress intended to so 

limit their expansions, it surely would have given some 

indication to that effect. 

The only legislative history that might support 

Optum’s view is Congress’s motivating concern of 

federal-court evasion, but only if understood as evidence 

that Congress’s purpose was preventing forum shopping. 

On the other hand, a Congress concerned with federalcourt evasion could simply aim to make the federal courts 

more accessible. The latter understanding makes more 

sense, especially in light of the Judiciary Committee’s 

observation that “mass actions are simply class actions in 

disguise” and that they “often result in the same abuses as 

class actions,” or sometimes “even worse.” Id. at 47. 

Optum otherwise relies on language from the Senate 

Judiciary Committee Report that “a mass action removed 

to a federal court under this provision may not be 

transferred to another federal court under the MDL 

statute” and that, when a mass action is removed, it should 

stay in federal court “so long as the mass action met the 

various jurisdictional requirements at the time of 

removal.” S. Rep. No. 109-14 at 47. Neither statement 
38

even implies that Congress intended to prevent mass 

actions from being originally brought in federal court.

We therefore agree with the pharmacies and hold

that mass actions initiated in federal district court are

considered class actions if they otherwise meet the 

provisions of paragraphs (2) through (10), and that district 

courts accordingly have original jurisdiction over those

mass actions. Because this mass action otherwise meets 

the provisions of paragraphs (2) through (10), the District 

Court properly exercised jurisdiction. We exercise 

jurisdiction under 28 U.S.C. § 1291.

III. Standard of Review

This appeal comes to us after the District Court’s 

denial of Optum’s motion to compel arbitration. Motions 

to compel arbitration are treated either as motions to 

dismiss or motions for summary judgment. Guidotti v. 

Legal Helpers Debt Resol., LLC, 716 F.3d 764, 771 (3d 

Cir. 2013) (AJS, KAJ, JRR). “‘Where the affirmative 

defense of arbitrability of claims is apparent on the face of 

a complaint (or documents relied upon in the complaint),’ 

‘the [Federal Arbitration Act] would favor resolving a 

motion to compel arbitration under a motion to dismiss 

standard without the inherent delay of discovery.’” Id. at 

773–74 (citations omitted and alterations adopted). In 

such a case, Rule 12 supplies the appropriate standard. Id. 

But “a more deliberate pace is required” when “‘the 

motion to compel arbitration does not have as its predicate 
39

a complaint with the requisite clarity’ to establish on its 

face that the parties agreed to arbitrate, or the opposing 

party has come forth with reliable evidence that is more 

than a ‘naked assertion that it did not intend to be bound’ 

by the arbitration agreement.” Id. at 774 (citations omitted

and alterations adopted). In such a case, “Rule 56 

furnishes the correct standard.” Id. at 774–75. 

Our first task is to determine which of these two 

standards applies. Id. at 772. Optum was explicit in 

seeking review of its motion to compel under the Rule 12 

standard. Its motion was accordingly limited to the 

pharmacies’ complaint and its contracts with the 

pharmacies that formed the basis thereof. The District 

Court was tasked, then, with judging Optum’s motion 

under the Rule 12 standard. Id. at 776. And because we 

“apply the same standard the district court should have 

applied,” that is our task as well. Id. at 772 (citing Exxon 

Shipping Co. v. Exxon Seamen’s Union, 73 F.3d 1287, 

1291 (3d Cir. 1996)).

Under the Rule 12 standard, we will affirm a district 

court’s denial of a motion to compel arbitration if “‘the 

assertions of the complaint, given the required broad 

sweep, would permit adduction of proofs that would 

provide a recognized legal basis’ for rejecting the 

affirmative defense.” Id. at 774 (quoting Leone v. Aetna 

Cas. & Sur. Co., 599 F.2d 566, 567 (3d Cir. 1979)). In 

other words, we look to the complaint and the documents 

on which it relies and will compel arbitration only if it is
40

clear, when read in the light most favorable to the 

respondents, that the parties agreed to arbitrate. Id. at 772 

& 776. But even if the complaint and the documents on 

which it relies do appear to show an agreement to arbitrate, 

we do not compel arbitration when the respondents have 

come forward with nonfrivolous evidence that they are not 

bound by the agreement. Id. at 776.

IV. Analysis

With passage of the Federal Arbitration Act, 

Congress established “a national policy favoring 

arbitration when the parties contract for that mode of 

dispute resolution.” Preston v. Ferrer, 552 U.S. 346, 349 

(2008). And when the parties have done so, arbitration 

agreements must be enforced according to their terms like 

any other contract would be. Rent-A-Ctr., W., Inc. v. 

Jackson, 561 U.S. 63, 67 (2010). Like other contracts, 

arbitration agreements “may be invalidated by ‘generally 

applicable contract defenses, such as fraud, duress, or 

unconscionability.’” Id. at 68 (quoting Doctor’s Assocs., 

Inc. v. Casarotto, 517 U.S. 681, 687 (1996)). Here, the 

District Court concluded that one of these generally 

applicable defenses—procedural unconscionability—

applied, and it therefore denied Optum’s motion to 

compel. 

Optum argues that this conclusion was in error for 

five reasons and urges us to reverse, or alternatively 

vacate, the District Court’s order. First, Optum argues that 
41

the pharmacies’ procedural-unconscionability defense 

should have been decided by an arbitrator rather than the 

District Court. Second, that there was no procedural 

unconscionability because PSAOs were not prohibited 

from sharing the Provider Agreements from their 

constituent pharmacies. Third, that the pharmacies ratified 

the Provider Agreements and thus vitiated any procedural 

unconscionability that may have otherwise been present. 

Fourth, that twenty of the pharmacies did not even claim 

procedural unconscionability. And fifth, that Guidotti 

requires that Optum be given a chance to engage in 

discovery limited to the question of arbitrability and a 

chance to reassert its motion to compel arbitration under 

the Rule 56 standard. For the reasons discussed below, we 

will vacate in part the District Court’s order denying 

Optum’s motion to compel and remand for proceedings 

consistent with this opinion.

A. Who Decides?

Before a court can resolve a dispute arising out of a 

contract containing an arbitration clause, it must address 

the “threshold arbitrability question”: who decides, the 

arbitrator or the court? See Henry Schein, Inc. v. Archer 

& White Sales, Inc., 139 S. Ct. 524, 527 (2019). Optum 

argues that the District Court “should have stayed the case 

and compelled arbitration so that the arbitrator can address 

[the pharmacies’] procedural unconscionability argument 

in the first instance.” Blue Br. at 39. The pharmacies 

contend that Optum forfeited this argument by not raising 
42

it before the District Court, and that even if it was not 

forfeited, the District Court was correct in deciding the 

issue itself. For the following reasons, we agree with the 

pharmacies.

Arbitration agreements “shall be valid, irrevocable, 

and enforceable, save upon such grounds as exist at law or 

in equity for the revocation of any contract.” 9 U.S.C. § 2. 

In other words, arbitration agreements are placed on equal 

footing with other contracts and thus may be challenged 

and invalidated as other contracts are. Rent-A-Ctr., 561 

U.S. at 68 (“Like other contracts, [arbitration agreements] 

may be invalidated by ‘generally applicable contract 

defenses, such as fraud, duress, or unconscionability.’”); 

Puleo v. Chase Bank USA, N.A., 605 F.3d 172, 179 (3d 

Cir. 2010) (en banc) (confirming that arbitrability 

questions may be raised when a party contends that its 

terms are “unconscionable under generally applicable 

state contract law”). Challenges to arbitration agreements 

are classified as either: (1) targeted at “specifically the 

validity of the agreement to arbitrate”; or (2) targeted at 

“the contract as a whole, either on a ground that directly 

affects the entire agreement (e.g., the agreement was 

fraudulently induced), or on the ground that the illegality 

of one of the contract’s provisions renders the whole 

contract invalid.” Buckeye Check Cashing, Inc. v. 

Cardegna, 546 U.S. 440, 444 (2006). Challenges of the 

first type “go[] to the ‘making’ of the agreement to 

arbitrate” and must be adjudicated by the courts. Prima 

Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 
43

403–04 (1967); see also Rent-A-Ctr., 561 U.S. at 70. 

Challenges of the second type, on the other hand, concern 

the contract “generally” and must be adjudicated by the 

arbitrator. Prima Paint, 388 U.S. at 404.

For a district court, rather than an arbitrator, to 

consider a challenge to an arbitration agreement, the 

challenge “must focus exclusively on the arbitration 

provision.” S. Jersey Sanitation Co. v. Applied 

Underwriters Captive Risk Assurance Co., 840 F.3d 138, 

143 (3d Cir. 2016). “[A]bsent a specific challenge to the 

validity of the arbitration clause specifically, the court 

must treat [an arbitration agreement] as a valid and 

enforceable agreement and refer any challenges to the 

container contract to arbitration.” MZM Constr. Co. v. 

N.J. Bldg. Laborers Statewide Benefit Funds, 974 F.3d 

386, 397 (3d Cir. 2020). Here, the District Court 

concluded that the pharmacies “argue[d] . . . that it would 

be procedurally unconscionable to bind them to the 

arbitration agreement [because] the terms and conditions 

of the agreement were not accessible to them when they 

entered into their contractual relationship” and proceeded 

to address the pharmacies’ challenge. Dist. Ct. Op., App’x 

at 10 (emphasis added). 

The District Court addressed the pharmacies’ 

challenge without the benefit of any argument from 

Optum that the arbitrability decision was not the District 

Court’s to make. “We generally refuse to consider issues 

that the parties have not raised below.” Freeman v. 
44

Pittsburgh Glass Works, LLC, 709 F.3d 240, 249 (3d Cir. 

2013). This refusal “is essential in order that parties may 

have the opportunity to offer all the evidence they believe 

relevant to the issues.” Id. (quoting Hormel v. Helvering, 

312 U.S. 552, 556 (1941)). And while it is within our 

discretion to depart from this general rule, we do so only 

in exceptional circumstances. Id.; Gen. Refractories Co. 

v. First State Ins. Co., 855 F.3d 152, 162 (3d Cir. 2017).

In its reply brief, Optum identifies two instances

before the District Court where it raised this argument. 

Neither is sufficient. The first was a lone citation to RentA-Center in Optum’s motion to compel, before the 

pharmacies even challenged arbitrability.13 And that 

citation supported nothing more than the rule that an

arbitration provision shall be valid unless it is specifically 

challenged. Nothing in the motion to compel can be read 

as an argument that the District Court was unable to 

preside over such a specific challenge. It is beyond 

implausible to read such a simple statement, made before 

Optum knew the pharmacies were disputing whether they 

were bound to arbitrate, as an argument that the District 

Court had to stay the case and refer the arbitrability 

challenge to the arbitrator. 

13 Despite submitting numerous briefs relating to its motion, 

this is the only time that Optum cited any cases relevant to the 

“who decides” question. 
45

The second instance Optum highlights is the 

following sentence from its response to the pharmacies’ 

second supplemental brief opposing its motion in the 

District Court: “Plaintiffs argue that the entire Provider 

Agreement was purportedly concealed from them. 

Accordingly, there is no basis for singling out the 

arbitration clause as not binding.” But again, nothing in 

this statement amounts to an argument that the District 

Court should have referred the arbitrability challenge to 

the arbitrator. Both of these instances are more naturally 

seen as arguments to the District Court about why it

should have rejected the pharmacies’ arbitrability 

challenge.

Optum also argues that it could not have forfeited 

this issue because the question of who decides is 

jurisdictional. Per the Supreme Court, “the word 

‘jurisdictional’ is generally reserved for prescriptions 

delineating the classes of cases a court may entertain 

(subject-matter jurisdiction) and the persons over whom 

the court may exercise adjudicatory authority (personal

jurisdiction).” Fort Bend Cnty. v. Davis, 139 S. Ct. 1843, 

1848 (2019). And the Supreme Court, when discussing a 

district court’s responsibility to give effect to arbitration 

agreements, has at times used language of that flavor, e.g.:

“When the parties’ contract delegates the arbitrability 

question to an arbitrator, a court may not override the 

contract. In those circumstances, a court possesses no 

power to decide the arbitrability issue.” Henry Schein, 

139 S. Ct. at 529 (emphasis added). But placing the weight 
46

that Optum does on this language would put the Supreme 

Court at odds with itself. It has repeatedly held that 

statutory limitations are to be treated as nonjurisdictional 

unless Congress clearly states it intends otherwise. 

Gonzalez v. Thaler, 565 U.S. 134, 141–44 (2012) (quoting 

Arbaugh v. Y & H Corp., 546 U.S. 500, 515–16 (2006)); 

see also United States v. Wong, 575 U.S. 402, 409–10 

(2015).

Optum points to no such clear statement by 

Congress. Instead it directs our attention to section 3 of 

the FAA, which requires courts to stay trial of an action 

pending arbitration, and to section 4, which directs courts

to order parties to proceed to arbitration when required by 

an agreement. Both of these statutory provisions undercut 

Optum’s argument. If a court lacks jurisdiction, how 

could it stay the case or enter an order other than for 

dismissal? Far from making a clear statement that the 

FAA strips courts of jurisdiction whenever there is an 

arbitration agreement, Congress has made a clear 

statement telling the courts how they are to exercise that

jurisdiction.

Sections 3 and 4 of the FAA are not jurisdictional 

limitations. Further, because Optum did not argue before 

the District Court that the pharmacies’ arbitrability 

challenge needed to be decided by the arbitrator, we 

conclude that Optum forfeited its argument that the 

District Court was required to submit the pharmacies’ 
47

arbitrability challenge to the arbitrator.14 We therefore

refuse to consider the issue.

B. Guidotti

After considering the pharmacies’ arbitrability 

challenge, the District Court concluded that “compelling 

plaintiffs to proceed with arbitration in this matter would 

be procedurally unconscionable.” Dist. Ct. Op., App’x at 

13. It reached this conclusion upon finding that “the 

record demonstrates that the defendant prohibits PSAOs 

from giving the Provider Agreement to the individual 

pharmacies without first gaining permission to do so and 

the defendant has never given such permission, making it 

impossible for the pharmacies to have any knowledge of 

the arbitration agreement.” Id. at 12. Optum argues that 

the record does not actually demonstrate that PSAOs were 

prohibited from sharing the Provider Agreements from

14 Optum argues that we should nevertheless exercise our 

discretion to decide the issue because the public interest 

requires that it be resolved. Per Optum, the issue of “who 

decides” arbitrability questions is recurrent and our resolution 

of the issue may affect contracts beyond the parties before us 

(including thousands of other pharmacies that Optum contracts 

with). We are not convinced these circumstances are 

exceptional enough to warrant addressing the issue,

notwithstanding Optum’s forfeiture. If Optum is party to a 

similar lawsuit from one of those non-plaintiff pharmacies, it 

may raise its argument before the appropriate district court.
48

their constituent pharmacies, and that there was thus no 

procedural unconscionability. 

Under Illinois law—which the parties agree 

controls here—“[p]rocedural unconscionability exists 

when a contract term is so difficult to find, read, or 

understand that the plaintiff cannot fairly be said to have 

been aware that he or she was agreeing to it.” Zuniga v. 

Major League Baseball, — N.E.3d —, No. 1-20-1264, 

2021 WL 976958 (Ill. App. Ct. Mar. 16, 2021). In 

response to Optum’s argument, the pharmacies 

prominently focus on language found in a number of the 

pharmacies’ Provider Agreements, which they contend 

prevents PSAOs from sharing terms such as the arbitration 

agreement with the pharmacies. For example, one 

Provider Agreement provides:

Unless required to do so by operation of law or 

order of any court or government authority, 

Pharmacy will not share information concerning the 

terms of this Agreement or other proprietary 

information, including but not limited to, 

reimbursement rates and pricing as provided to

Pharmacy by [Optum], with any other person or 

entity without the permission of [Optum]. If any 

such disclosure is made or contemplated, Pharmacy 

will notify [Optum].

AccessHealth Provider Agreement, Exh. A § 3.3, App’x at 

506. While at first blush this may suggest, as Optum 
49

argues, that the pharmacies are expected to have access to 

but not share the Provider Agreement’s terms, this contract 

in particular shows the PSAO signing as “Pharmacy.” So 

when read in the light most favorable to the pharmacies, 

this Provider Agreement could plausibly prevent the 

PSAO from sharing the Provider Agreement’s terms with 

any third party, including the PSAO’s member 

pharmacies. Further, the pharmacies came forward with 

other evidence: a transcript from the deposition of 

Optum’s corporate representative, Kerri Tanner. Tanner 

was unable to recall any specific times that Optum 

authorized PSAOs to disclose Provider Agreement terms 

to non-signatory pharmacies. Otherwise, Tanner provided 

only vague statements that could be understood to support 

either view (and are indeed selectively quoted by Optum 

and the Pharmacies). 

Given that Optum brought its motion to compel 

arbitration under the Rule 12(b)(6) standard, the 

pharmacies were required to show only that the complaint 

and its supporting documents were not clear enough on 

their face to establish that the parties agreed to arbitrate or 

otherwise “come forth with reliable evidence that is more 

than a ‘naked assertion that it did not intend to be bound’ 

by the arbitration agreement.” Guidotti, 716 F.3d at 774 

(citations omitted). The language of at least some of the 

Provider Agreements is ambiguous enough that, looking 

only to the complaint and its relied-upon documents, we 

cannot say Optum allowed PSAOs to share the terms of 

the Provider Agreement—and thus the arbitration 
50

agreement—with their pharmacies absent authorization to 

do so. And Tanner’s statements suggest that, if 

authorization was required, it may not have been given. 

The pharmacies have thus provided more than a naked 

assertion that they were never given the terms of their 

Provider Agreements.

Because it is plausible that a number of the 

pharmacies were never given the terms of their Provider 

Agreements, it is likewise plausible that holding the 

pharmacies to the arbitration agreements contained therein 

would be procedurally unconscionable. See Zuniga, 2021 

WL 976958, at *5 (“Procedural unconscionability consists 

of some impropriety during the process of forming the 

contract depriving a party of a meaningful choice.” 

(quoting Kinkel v. Cingular Wireless, LLC, 223 Ill.2d 1, 

23 (2006))). So we agree with the District Court that the 

pharmacies “brought forth sufficient facts to place the 

agreement to arbitrate in issue.” Dist. Ct. Op., App’x at 6. 

Optum’s motion to compel arbitration, brought under the 

Rule 12(b)(6) standard, then, should have been denied. 

But the District Court did not stop there. 

Without providing for discovery as to arbitrability 

and without allowing Optum to bring a Rule 56-styled 

motion to compel arbitration, the District Court proceeded 

to judge Optum’s motion by the Rule 56 standard. 

Guidotti explains that the appropriate procedure for 

converting motions brought under the Rule 12 standard to 

motions brought under the Rule 56 standard “mirrors the 
51

process provided by Rule 12(d).” 716 F.3d at 775 n.6. 

That rule says “that ‘if, on a motion under Rule 12(b)(6) 

or 12(c), matters outside the pleadings are presented to and 

not excluded by the court, the motion must be treated as 

one for summary judgment under Rule 56,’ and ‘all parties 

must be given a reasonable opportunity to present all the 

material that is pertinent to the motion.’” Id. (alterations 

omitted) (quoting Fed. R. Civ. P. 12(d)). This means that 

“[o]nce the motion is converted to a motion for summary 

judgment, reasonable allowance must be made for the 

parties to obtain discovery. Otherwise, weighing the new 

factual assertions against the facts pleaded in the 

complaint would ‘invite courts to consider facts and 

evidence that have not been tested in formal discovery.’” 

Id. (citations and alterations omitted) (quoting Pfeil v. 

State St. Bank & Trust Co., 671 F.3d 585, 594 (6th Cir. 

2012), abrogated on other grounds by Fifth Third Bancorp 

v. Dudenhoeffer, 573 U.S. 409 (2014)).

This formal discovery, limited to the question of 

arbitrability, may then be followed by a renewed motion 

to compel arbitration wherein both the moving and nonmoving parties’ arguments can be supported by a 

developed record. Id. at 776. To proceed otherwise would 

plainly disadvantage moving parties because they would 

be limited to the complaint, exhibits attached to the 

complaint, matters of public record, and undisputedly 

authentic documents relied upon by the complaint, even 

when non-moving parties introduced and relied on other 

evidence in opposition. Id. at 772.
52

Guidotti, then, requires a district court to allow 

discovery on the question of arbitrability after it has denied

a motion to compel arbitration under the Rule 12(b)(6) 

standard. Id. at 776. The District Court noted Guidotti’s 

requirement but nevertheless declared that “the parties 

have already engaged in discovery and have submitted 

supplemental filings with the court in relation to the issue 

of arbitrability.”

15 It was, therefore, the District Court’s 

view that adhering to Guidotti was a waste of time. Dist. 

Ct. Op., App’x at 6. That was error, so we will vacate the 

District Court’s order in part and remand to allow the 

parties to conduct discovery limited to the issue of 

arbitrability. After the conclusion of such discovery, 

Optum will then have an opportunity to file a new motion 

under the appropriate standard.

Before concluding, we note that the District Court 

did not provide any citations to the record in support of its 

finding that “the record demonstrates that [Optum] 

prohibits PSAOs from giving the Provider Agreement to

15 The District Court seems to be mistaken about the discovery 

that had taken place. Optum had conducted discovery as to the 

nine pharmacies with which it did not seek to compel 

arbitration, but not as to the pharmacies with which 

arbitrability was at issue. Regardless, any discovery that might 

have occurred with respect to arbitrability after the filing of 

Optum’s original motion would be of little use without a later 

opportunity to move to compel arbitration under the Rule 56 

standard.
53

the individual pharmacies without first gaining permission 

to do so.” Because we apply the same standard of review 

the District Court should have applied, Guidotti, 716 F.3d 

at 772, we have examined the record and found support for 

the finding in the Provider Agreement set forth in Exhibit 

A and in other Provider Agreements. But that particular 

Provider Agreement may not be representative of other 

pharmacies’ Provider Agreements. We note two

examples. The Provider Agreement set forth in Exhibit D 

appears to contain the same confidentiality clause as the 

Provider Agreement in Exhibit A, but “Pharmacy” therein 

is defined more broadly—as each of the PSAO’s 

participating member pharmacies—and the Provider 

Agreement set forth in Exhibit P does not appear to 

contain the same confidentiality clause as the others. 

Moreover, as Optum and the pharmacies note, twenty of 

the pharmacies made no claim of procedural 

unconscionability. Because the issue is being remanded 

to the District Court, which will soon have before it a 

renewed motion, the District Court will be in a better 

position to make, in the first instance, factual findings 

regarding which, if any, of the pharmacies were prevented 

from accessing the terms of their Provider Agreements. It

will also be in a better position to determine, in the first 

instance, whether certain pharmacies’ substantive 

unconscionability claims have merit or (as raised for the 

first time in Optum’s reply brief) are preempted by the 

FAA.
54

V. Conclusion

For the foregoing reasons, we will vacate in part16

and remand to the District Court for further proceedings 

consistent with this opinion.

16 The District Court also ordered dismissal of various claims. 

The dismissals are not challenged here.