A Missouri appellate court held that where a contract contains an arbitration agreement that is broad in scope, a court should compel arbitration of any dispute that "touches" matters covered by the parties’ contract.

In Kansas City Urology, P.A. v. United Healthcare Services, No. WD 67814, WD 67815, 2008 WL 2726313 (Mo. Ct. App. July 15, 2008), Kansas City area physicians and medical organizations (the Physicians) entered into contracts with United Healthcare (UH) and Blue Cross and Blue Shield (BCBS). The contracts set the rate of reimbursement that UH and BCBS would pay the Physicians for their services, and they also contained arbitration agreements.

The Physicians sued UH and BCBS, alleging price fixing and monopolization in violation of antitrust law. In response, UH and BCBS moved to compel arbitration. The trial court denied the motion to compel arbitration, reasoning that the Physicians’ antitrust claims were not within the scope of the parties’ arbitration agreements and, even if they were, the agreements were unconscionable. UH and BCBS appealed.

On appeal, the Court reversed the trial court’s decision and compelled arbitration. The Court held that the trial court properly found that the arbitration agreements were "broad." However, the Court held that the trial court improperly relied on Academy of Medicine of Cincinnati v. Aetna Health, Inc., 842 N.E.2d 488 (Ohio 2006) to determine that the agreements did not cover the Physicians’ antitrust claims because the Physicians’ could maintain their actions without referring to the underlying contracts. The Court held that the Ohio Supreme Court misstated federal law that was set forth in Fazio v. Lehman Brothers Inc., 340 F.3d 386, 395 (6th Cir. 2003).

The Court recognized that the Fazio court did state that when determining if an issue is within the scope of an arbitration agreement, the question of whether the action could be maintained without reference to the contract is relevant. However, Fazio went on to state that "[e]ven real torts can be covered by arbitration clauses if the allegations underlying the claims ‘touch matters’ covered by the agreement."

Thus, the Court held that "whether or not a claim could be maintained without reference to the underlying contract is, at best, a preliminary, rather than a definitive, question, and the real test is whether or not the petition’s factual allegations ‘touch’ matters covered by the parties contract." The Court went on to hold that the reimbursement rates in the contracts were the illegal action that UH and BCBS allegedly conspired to produce, so the Physicians’ allegations touched matters covered by the parties’ contracts. Accordingly, the Court compelled arbitration.

The Court reversed the trial court’s finding of unconscionability because "the physicians made no claim of procedural unconscionability, and the court made no finding of procedural unconscionability."