DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

OPTUMRX,

Appellant,

v.

KING'S DRUGS, INC.; VISTACARE PHARMACY

SERVICES, LLC; HEPZIBAH, INC.; HEALTH LINK

PHARMACY, LLC; HEALTHWISE PHARMACY, LLC;

and ADEL CONSULTING, INC.,

Appellees.

No. 2D2023-0096

April 17, 2024

Appeal from the Circuit Court for Hillsborough County; Rex M. Barbas, 

Judge.

Kristen M. Fiore of Akerman LLP, Tallahassee; Michael J. Holecek of 

Gibson, Dunn & Crutcher LLP, Los Angeles, California; Alexandra M. 

Mora and Ndifreka U. Uwem of Akerman, LLP, Miami, for Appellant.

Richard E. Miller of Jacobs Law Group, PC, Philadelphia, Pennsylvania; 

Sean Estes of Hoyer Law Group, PLLC, Tampa; and Mark R. Rosen, 

admitted pro hac vice, of Jacobs Law Group, PC, West Conshohocken, 

Pennsylvania, for Appellees.

LUCAS, Judge.

A dispute between a pharmacy benefits manager and several

pharmacies requires us to delve into the scope and effect of an 

arbitration agreement. In the case before us, OptumRx argues that the 

circuit court erred when it concluded it could not compel King's Drugs, 
2

Inc., Vistacare Pharmacy Services LLC, Hepzibah Inc., Health Link 

Pharmacy, LLC, Healthwise Pharmacy Inc., and Adel Consulting, Inc. 

(collectively, the Pharmacies), to arbitrate their dispute with OptumRx in 

California. We reverse.

I.

OptumRx alleges that it entered into a Provider Agreement with the 

Pharmacies in which OptumRx, in essence, acts as a "middleman" on 

behalf of various insurance companies to negotiate and administer 

pharmaceutical claims for reimbursement. The agreement is lengthy and 

quite technical, but in this appeal, we focus on two provisions: first, the 

agreement states that if a "Dispute" (as broadly defined) arises and 

cannot be resolved through an informal meeting or conference, the 

Dispute "shall thereafter be submitted to binding arbitration before a 

panel of three arbitrators in accordance with the Commercial Dispute

Procedures of the American Arbitration Association"; and second, the 

agreement explicitly incorporates a separate document, OptumRx's 

Provider Manual.1 Although the language within the Provider Manual 

has been amended over the years, the operative version we are concerned 

with, the 2022 Provider Manual, provides as follows:

[T]he parties will work in good faith as set forth below to 

resolve any and all issues, disputes, or controversies between 

them (hereinafter referred to as a "Dispute") including, but 

not limited to all questions of arbitrability or the formation, 

validity, scope, and interpretation of this arbitration 

agreement, all disputes relating in any way to the parties' 

relationship, the [Provider] Agreement, or the [Provider 

Manual] or the breach of either agreement, and all disputes 

1 The Provider Agreement provides that this document may be 

referred to as the Administrator Provider Manual, the Provider Manual, 

or the Pharmacy Manual. For the sake of clarity, we refer to this 

document as the Provider Manual.
3

relating in any way to Network Pharmacy Provider's status as 

a participating Network Pharmacy Provider in the 

Administrator's network, shall be resolved exclusively by 

binding arbitration administered by the American Arbitration 

Association . . . .

. . . .

Any arbitration proceeding under this Agreement shall 

be conducted in Los Angeles County or Orange County, 

California. . . . 

. . . .

The parties acknowledge that this arbitration agreement 

is part of a transaction involving interstate commerce and 

that the Federal Arbitration Act governs both substantive and 

procedural aspects of this arbitration . . . . 

The Provider Manual further states that any party asserting a 

dispute "shall provide written notice to the other party identifying the 

nature and scope of the Dispute" and that, if the parties are then unable 

to resolve the dispute, any party may certify in writing the dispute wasn't 

resolved and commence an arbitration.

On December 16, 2021, an attorney for the Pharmacies delivered a 

written "Notification of Dispute" to OptumRx that described several 

issues of disagreement about OptumRx's reimbursement and 

administration of the Pharmacies' prior claims.2 In the letter, the 

Pharmacies also claimed that OptumRx was in breach of the Provider 

Manual. The parties' attorneys participated in a phone conference in an 

2 The letter was sent on behalf of a list of hundreds of pharmacies 

nationwide, a list that included the Pharmacies in this action. We are 

informed that litigation similar to the case before us is pending in 

numerous courts throughout the country. As of the time of writing this 

opinion, there are no less than two pending appeals in Florida 

concerning OptumRx and the arbitration issues raised in this case. See

Vistacare Pharm. Servs. 2 LLC, d/b/a Vistacare Pharm. II v. OptumRx,

2D23-466; OptumRx v. Bay Pharm. Inc., 5D23-652.
4

attempt to resolve the disputes identified in the letter but were unable to 

reach any agreement. During this conversation, OptumRx's counsel 

stated that these disputes were subject to arbitration; the Pharmacies' 

counsel disagreed.

On March 29, 2022, OptumRx filed petitions to compel the 

Pharmacies to arbitrate the disputes identified in the Pharmacies' written 

notification. The petitions were later consolidated, and the Pharmacies 

raised various defenses to OptumRx's requested arbitration. After 

hearing arguments on OptumRx's motion to compel arbitration, the 

circuit court entered an order denying OptumRx's motion and dismissing 

its petitions.

In its order, the circuit court concluded that 9 U.S.C. § 4 (2018) of 

the Federal Arbitration Act (FAA) only authorized federal district courts, 

not state courts, to compel arbitration. The court further found 

(apparently in the alternative) that if venue is specified in an arbitration 

agreement (as it is in the Provider Manual), then section 4 of the FAA 

requires a petition to compel arbitration to be filed in that venue. The 

court was further persuaded that the December 2021 letter did not 

clearly articulate a specific dispute as to the six Pharmacies named in 

the petitions before it, such that there was no "party aggrieved" as 

required under section 4 of the FAA. Finally, the court stated it was 

"well-settled" that the Florida Arbitration Code, §§ 682.01-.25, Fla. Stat. 

(2022), could not provide an independent basis to compel arbitration 

because under Damora v. Stresscon International, Inc., 324 So. 2d 80, 82 

(Fla. 1975), a Florida circuit court could not order arbitration in another 

state. In dismissing the petitions, the court did not address any of the 

substantive claims or defenses—including whether the case was 
5

arbitrable—but rested its decision on the determination that it was 

without jurisdiction or lawful authority to compel arbitration.

OptumRx timely appeals the circuit court's order. We have 

jurisdiction. See Fla. R. App. P. 9.130(a)(3)(C)(iv).

II.

The legal issues presented in this appeal are somewhat intertwined 

but generally concern issues surrounding the subject matter jurisdiction 

of a circuit court, statutory interpretation of an arbitration act, and 

whether arbitration may be compelled under a contractual provision. In 

all respects, these are issues we review de novo. See generally Venn 

Therapeutics, LLC v. CAC Pharma Invs., LLC, 49 Fla. L. Weekly D509, 

D510 (Fla. 2d DCA Mar. 6, 2024) ("The standard of review we use when 

examining a trial court's construction of an arbitration agreement as well 

as its application of the law to the facts is de novo." (citing Addit, LLC v.

Hengesbach, 341 So. 3d 362, 366 (Fla. 2d DCA 2022))); Bell Transp., LLC 

v. Dep't of Highway Safety & Motor Vehicles, 351 So. 3d 249, 250 (Fla. 2d 

DCA 2022) ("We review issues of statutory interpretation de novo." (citing 

Lab. Corp. of Am. v. Davis, 339 So. 3d 318, 323 (Fla. 2022))); Friedel v. 

Edwards, 327 So. 3d 1242, 1244 (Fla. 2d DCA 2021) ("We review a 

circuit court's determination of subject matter jurisdiction de novo." 

(citing Artz rel. Artz v. City of Tampa, 102 So. 3d 747, 749 (Fla. 2d DCA 

2012))). 

Furthermore, when an arbitration agreement is governed by the 

FAA, "[f]ederal substantive law controls arbitration issues" in state court 

proceedings. Airbnb, Inc. v. Doe, 336 So. 3d 698, 703 (Fla. 2022) (citing 

Preston v. Ferrer, 552 U.S. 346, 349 (2008)).

III.
6

The circuit court erred when it determined it was without 

jurisdiction to compel arbitration under section 4 of the FAA. In 

pertinent part, 9 U.S.C. § 4 provides:

A party aggrieved by the alleged failure, neglect, or 

refusal of another to arbitrate under a written agreement for 

arbitration may petition any United States district court 

which, save for such agreement, would have jurisdiction 

under title 28, in a civil action or in admiralty of the subject 

matter of a suit arising out of the controversy between the 

parties, for an order directing that such arbitration proceed in 

the manner provided for in such agreement. Five days' notice 

in writing of such application shall be served upon the party 

in default.

Section 4 of the FAA authorizes federal district courts to consider 

and compel arbitration in civil cases; but it does not preclude state

courts from exercising their own jurisdictional power to compel 

arbitration when construing a contract governed by the FAA. See English 

v. McCrary, 348 So. 2d 293, 297 (Fla. 1977) ("The circuit courts of the 

State of Florida are courts of general jurisdiction . . . clothed with most 

generous powers under the Constitution. . . . [N]othing is outside the 

jurisdiction of a superior court of general jurisdiction except that which 

is clearly vested in other courts or tribunals, or is clearly out side of and 

beyond the jurisdiction vested in such circuit courts by the Constitution 

and the statutes enacted pursuant thereto." (quoting State ex rel. B.F. 

Goodrich Co. v. Trammell, 192 So. 175, 177 (Fla. 1939))). There is a 

"presumption that state courts enjoy concurrent jurisdiction" to apply 

federal statutes such as the FAA. See Gulf Offshore Co. v. Mobil Oil Corp., 

453 U.S. 473, 478 (1981). As the Supreme Court has observed, the FAA 

"creates a body of federal substantive law" that is "applicable in state and 

federal court." See Southland Corp. v. Keating, 465 U.S. 1, 12 (1984)

(quoting Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 
7

25 n.32 (1983)); see also McKenzie Check Advance of Fla., LLC v. Betts, 

112 So. 3d 1176, 1185 (Fla. 2013) ("[T]he Supreme Court has held that 

the FAA applies in both federal and state courts." (citing Allied-Bruce 

Terminix Cos. v. Dobson, 513 U.S. 265, 272 (1995))); Sasche Constr. &

Dev. Corp. v. Affirmed Drywall, Corp., 251 So. 3d 1005, 1009 (Fla. 2d 

DCA 2018) ("The FAA applies in both federal and state courts." (citing 

Betts, 112 So. 3d at 1185; Global Travel Mkt., Inc. v. Shea, 908 So. 2d 

392, 396 (Fla. 2005))). And indeed, the FAA has been applied and 

interpreted, repeatedly, in Florida state courts. See, e.g., Airbnb, 336 So. 

3d at 703; Visiting Nurse Ass'n of Fla., Inc. v. Jupiter Med. Ctr., Inc., 154 

So. 3d 1115, 1125 (Fla. 2014); Basulto v. Hialeah Auto., 141 So. 3d 1145, 

1154-55 (Fla. 2014); Fla. Holdings III, LLC v. Duerst ex rel. Duerst, 198 

So. 3d 834, 843 (Fla. 2d DCA 2016); Palm Court, NH, L.L.C. v. Dowe, 336 

So. 3d 735, 738 (Fla. 4th DCA 2022); CEFCO v. Odom, 278 So. 3d 347, 

351-54 (Fla. 1st DCA 2019); Fahnestock v. Dean Witter Reynolds, Inc., 

691 So. 2d 509, 510 (Fla. 4th DCA 1997).

The California venue provision within the Provider Agreement did 

not divest the circuit court of its lawful power to consider OptumRx's 

petitions. The court's reliance on the Florida Supreme Court's 

pronouncement in Damora, 324 So. 2d at 82 ("[A]n agreement to 

arbitrate future disputes in another jurisdiction is outside the authority 

of the Florida Arbitration Code . . . and . . . renders the agreement to 

arbitrate voidable at the instance of either party."), was misplaced for two 

reasons. First, as previously mentioned, the arbitration provision at 

issue here is governed by the FAA. See AMS Staff Leasing, Inc. v. Taylor, 

158 So. 3d 682, 685-86 (Fla. 4th DCA 2015) ("If, however, the Federal 

Arbitration Act ('FAA') applies to the agreement, a Florida court must 

enforce a valid arbitration clause which provides for arbitration in a 
8

foreign state." (citing Default Proof Credit Card Sys., Inc. v. Friedland, 992

So. 2d 442, 444 (Fla. 3d DCA 2008))). Second, even under the Florida 

Arbitration Code, that part of the Damora opinion is no longer apt 

because section 682.02, the section Damora was construing, was 

substantially amended in 2013. The statute's prior text—"this act shall 

not apply to any such [arbitration] agreement or provision to arbitrate in 

which it is stipulated that this law shall not apply or to any arbitration or 

award thereunder"—was removed. See ch. 2013-232, § 7, Laws of Fla. 

(July 1, 2013). We agree with OptumRx that this amendment effectively 

cabined that portion of Damora's holding to the prior version of the 

statute. Cf. Rogers & Ford Constr. Corp. v. Carlandia Corp., 626 So. 2d 

1350, 1354 (Fla. 1993) ("The [l]egislature responded to these decisions by 

amending the statute in 1974 to enlarge the standing of condominium 

associations while reserving all the unit owners' statutory and common 

law rights that were available, including standing. Ch. 74–104, § 7, Laws 

of Fla. The amendment effectively abrogated Rubenstein [v. Burleigh

House, Inc., 305 So.2d 311 (Fla. 3d DCA 1974)], Commodore Plaza [at

Century 21 Condominium Ass'n, Inc. v. Saul J. Morgan Enters., Inc., 301

So.2d 783 (Fla. 3d DCA 1974)], and Hendler [v. Rogers House

Condominium, Inc., 234 So.2d 128 (Fla. 4th DCA 1970)] . . . ."). The

circuit court erred in concluding otherwise.

Finally, we can reject out of hand the court's determination that 

OptumRx was not a "party aggrieved" under section 4 of the FAA. A 

party may compel arbitration under section 4 where, as here, there is a 

written agreement to arbitrate, a dispute within the scope of that 

agreement, and a refusal to arbitrate. See Zurich Am. Ins. Co. v. Watts 

Indus., Inc., 417 F.3d 682, 687 (7th Cir. 2005). An opposing party's 

refusal to proceed to arbitration may be manifested in various ways. As 
9

the Eleventh Circuit Court of Appeals explained concerning this issue, 

the trial court's focus should be

on "the specific controversy—the concrete dispute that one 

party has 'fail[ed], neglect[ed], or refus[ed]' to arbitrate—and 

determine whether that controversy would give rise to a suit 

under federal law." [Vaden v. Discover Bank, 556 U.S. 49, 77-

8 (2009)] (Roberts, C.J., concurring in part and dissenting in 

part) (quoting 9 U.S.C. § 4). After all, FAA § 4 is only 

triggered when one party has expressed a "refusal" to 

arbitrate, and the other party has been thereby "aggrieved."

See 9 U.S.C. § 4. This refusal will undoubtedly be 

documented in some way (for example, by a letter). 

Examining these pre-litigation or extra-legal communications 

between the parties can provide insight into the factual 

nature of the dispute. In addition, the FAA petitioner's 

description of the underlying dispute in the § 4 petition itself 

can provide some (although not conclusive) evidence of the 

contours of the dispute. . . . As Chief Justice Roberts 

explained, "the exercise is closely analogous to the 

jurisdictional analysis in a typical declaratory judgment 

action," which requires a court to imagine for itself which 

coercive claims the parties' dispute could hypothetically 

support, in order to determine whether a hypothetical 

coercive lawsuit brought by the declaratory judgment 

defendant would present a federal question on the face of its 

well-pleaded complaint. [Vaden, 556 U.S. at 78] (citing

Franchise Tax Bd. [of State of Cal. v. Constr. Laborers Vacation

Tr. for S. Cal.,] 463 U.S. [1,] 19 [(2009)]).

Cmty. State Bank v. Strong, 651 F.3d 1241, 1256 (11th Cir. 2011) (first, 

second, and third alterations in original) (footnote omitted). 

The Pharmacies, through their counsel, initiated a "Dispute" under 

the arbitration provision in the Provider Agreement when they sent their 

written Notification of Dispute to OptumRx's attorney. Their letter 

sufficiently described various points of controversy that could potentially 

be arbitrable. Though they question the sufficiency of the record, they

never contradict OptumRx's representation that the Pharmacies later 

indicated their refusal to arbitrate the issues described in their own letter
10

during a telephone conference with OptumRx's counsel. Cf. ACE Am.

Ins. Co. v. Guerriero, No. 2:17-CV-00820, 2017 WL 3641905, at *6 (D.

N.J. Aug. 24, 2017) (recognizing that a refusal to arbitrate under the FAA

can arise during a telephone conference). They have steadfastly 

continued their refusal to arbitrate by litigating this issue in the circuit 

court below and in this court on appeal. From our de novo review, the 

Pharmacies' refusal to arbitrate the disputes they notified OptumRx of

satisfied section 4's requirement that there be a "failure, neglect, or 

refusal" to arbitrate;3 OptumRx is an aggrieved party under section 4.

Accordingly, there was no impediment to the circuit court 

exercising its jurisdiction to decide OptumRx's petitions to compel 

arbitration on their merits. We reverse and remand for the court to do so 

in accordance with this opinion.

Reversed and remanded.

NORTHCUTT and CASANUEVA, JJ., Concur.

_____________________________

Opinion subject to revision prior to official publication.

3 We note there appears to be something of an open question in 

federal jurisprudence as to whether a party's refusal must be 

"unequivocal" in order to satisfy section 4 of the FAA. Cf. Beauperthuy v. 

24 Hour Fitness USA, Inc., No. 06–715 SC, 2011 WL 6014438, at *2 n.4 

(N.D. Cal. Dec. 2, 2011) ("Because the Ninth Circuit has not adopted the 

'unequivocal refusal' standard, and because Plaintiff makes compelling 

arguments that such a standard imported from the [National Labor 

Relations Act] should not apply to the FAA, the Court declines to adopt 

the PaineWebber [Inc. v. Faragalli, 61 F.3d 1063 (3d Cir. 1995),] standard 

and instead adheres to the text of Section 4 itself, which states that a 

court may compel arbitration upon a party's 'failure, neglect, or refusal to 

arbitrate.' "). We need not resolve that question today because it appears 

to us that the Pharmacies' continued refusal to arbitrate the disputes 

they raised was sufficiently unequivocal to meet that heightened 

threshold.