Susan Richards v. Brett Silver and Starmark Financial, LLC

D ISTRICT C OURT OF A PPEAL O F T HE STATE OF F LORIDA
FOURTH DISTRICT
SUSAN RICHARDS,
Appellant,
v.
BRETT SILVER and STARMARK FINANCIAL, LLC,
Appellees.
No. 4D2025-1034
[April 15, 2026]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach 	County; 	Gregory 	Miller 	Keyser, 	Judge; 	L.T. 	Case 	No.
502024CA001604XXXAMB.
Chris Kleppin of The Kleppin Firm, P.A., Plantation, for appellant.
Thomas U. Graner of Graner Platzek & Allison, P.A., Boca Raton, for
appellees.
GROSS, J.
We affirm the circuit court’s order compelling arbitration. 	The order
was based on a settlement agreement between the parties created after the
filing of claims with the Equal Employment Opportunity Commission
(“EEOC”). 	The 	arbitration 	clause 	in 	the 	settlement 	agreement 	was
therefore not a predispute arbitration agreement subject to the Ending
Forced Arbitration of Sexual Assault and Sexual Harassment Act (“EFAA”),
9 U.S.C. §§ 401–402.
Confidential Settlement Agreement
In June 2022, Susan Richards filed a charge of discrimination with the
EEOC, asserting claims of sexual harassment and age discrimination
against appellees Brett Silver and Starmark Financial, LLC. 	Richards
alleged that her complaints of discrimination were motivating factors for
her termination.
After 	a 	presuit 	mediation, 	the 	parties 	executed 	a 	Confidential
Settlement Agreement (“CSA”) in May 2023. 	The CSA settled the claims

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Richards asserted in the 2022 EEOC charge of discrimination, with no
admission of guilt by any party.
The CSA contains an arbitration clause which states that “[a]ny claim,
action or proceeding relating to or arising out of this Agreement shall be
exclusively brought, addressed and resolved via binding arbitration . . . .”
Regarding payments made to Richards, the CSA provides that no K-1
tax form would be issued to her. 	Finally, the CSA contains a severability
clause stating that if any CSA provision were determined to be illegal,
invalid, or unenforceable, such a provision would be severed without
affecting the validity of the remaining parts.
Appellees’ Arbitration Filing
In 	August 	2023, 	appellees 	filed 	an 	arbitration 	demand 	with 	the
American Arbitration Association (“AAA”), alleging that Richards breached
the CSA’s confidentiality provisions. 	Richards moved to remand the case
to the state court system or alternatively to dismiss, arguing that the
arbitration provision was unenforceable under the EFAA.
The AAA declined to proceed with the arbitration without a court order
or the parties’ agreement.
The Circuit Court Declaratory Action
Appellees then filed the instant declaratory judgment action in the
circuit court, alleging that Richards breached the CSA and seeking a
declaration that “[a]ny dispute arising out of the Settlement Agreement
shall be heard before the AAA.”
Richards answered and brought a counterclaim against appellees for
breach of contract, alleging that appellees breached the CSA by issuing
her a K-1. Richards further alleged that appellees—in an effort “to retaliate
and harass” her—breached the CSA “by filing a vague arbitration action
claiming (falsely) that Richards breached the settlement agreement by
disclosing the amount of the settlement . . . .” 	Richards also alleged that
she had filed a new “charge of discrimination with the EEOC alleging
retaliation 	and 	continued 	sexual 	harassment 	and 	will 	amend 	this
Counterclaim with those claims after the administrative process has been
completed.”

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The Hearing on Arbitrability
In 	September 	2024, 	the 	trial 	court 	held 	a 	hearing 	to 	address
arbitrability and other issues. 	At the hearing, the parties agreed that: (1)
Richards’s original EEOC charge alleged sexual harassment and assault;
(2) the CSA resolved all claims between the parties; (3) Richards filed a
subsequent EEOC charge alleging post-settlement retaliation; and (4)
there was no claim of any sexual harassment occurring after the CSA was
signed.
The central legal dispute at the hearing was whether the EFAA applied
to void the arbitration clause. Richards argued that the CSA’s arbitration
clause was a “predispute arbitration agreement” governed by the EFAA
because the CSA was signed before the current disputes (the K-1 issuance
and breach-of-confidentiality claims) arose, and because those disputes
“relate to” her original sexual harassment dispute. 	Appellees countered
that the CSA was a postdispute arbitration agreement outside the scope
of the EFAA because the sexual harassment dispute had already arisen at
the time of the making of the agreement.
Motion to Amend Counterclaim
Richards 	moved 	to 	amend 	her 	counterclaim, 	seeking 	to 	add 	a
retaliation claim under the Florida Civil Rights Act (“FCRA”).
Order on Appeal
One day before a hearing on the motion to amend counterclaim, the
circuit court entered an omnibus order granting appellees’ request for
declaratory 	relief. 	The 	court 	ruled 	that 	the 	mandatory 	arbitration
provision set forth in the CSA was a postdispute agreement to arbitrate
and thus was not barred by the EFAA.
The court rejected Richards’s argument that any of the parties’ current
breach-of-contract claims under the CSA were “related to” the prior sexual
harassment dispute, emphasizing that there were “no claims of sexual
harassment 	and/or 	assault” 	asserted 	by 	Richards 	“arising 	after 	the
Settlement Agreement was entered into by the parties in May of 2023.”
The court reiterated that “the parties have had no contact or interaction
since May of 2023.”
The court also rejected Richards’s argument that the appellees’ alleged
breach of the CSA would prevent them from enforcing the CSA’s arbitration
provision. 	The court found that the provision was “broad enough for the

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Court to order that all disputes referenced as pending at this time . . . be
brought before AAA for arbitration.”
The court ordered that “the parties’ present disputes of competing
breach of contract claims, and any other dispute relating to or arising out
of the [CSA], be brought before AAA to be addressed and resolved via
binding confidential arbitration . . . .”
Later, the court denied Richards’s motion to amend her counterclaim.1
The Circuit Court Did Not Err in Concluding that the
CSA’s Arbitration Clause Fell Outside the EFAA
On appeal, Richards argues that the circuit court erred by compelling
arbitration of a sexual harassment case governed by the EFAA. 	She
contends that the CSA constitutes a “predispute” arbitration agreement
with 	respect 	to 	her 	claims 	of 	appellees’ 	subsequent 	retaliation 	and
breaches of the settlement agreement, which “relate to” the original sexual
harassment dispute and thus fall within the EFAA’s protection, rendering
the entire case non-arbitrable at her election.
An order on a motion to compel arbitration “presents a mixed question
of law and fact.” 	Fonte v. AT&T Wireless Servs., Inc., 903 So. 2d 1019,
1023 (Fla. 4th DCA 2005). 	If the trial court’s decision rests on findings of
fact, those findings “are reviewed under a competent, substantial evidence
standard.” 	BDO Seidman, LLP v. Bee, 970 So. 2d 869, 873 (Fla. 4th DCA
2007). 	“However, the standard of review applicable to the trial court’s
construction of an arbitration provision, and to its application of the law
to the facts found, is de novo.” Id. (quoting Fonte, 903 So. 2d at 1023).
“[U]nder Florida law, a trial court’s role in determining arbitrability is
limited to the following inquiries: (1) whether a valid written agreement to
arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the
right to arbitration was waived.” 	Ridard v. Massa Inv. Grp., LLC, 337 So.
3d 862, 865 (Fla. 3d DCA 2022) (cleaned up). “The scope of an arbitration
clause is a pure matter of contract interpretation, and the determination
of whether an arbitrable issue exists requires the court to examine the
plain language of the arbitration agreement.” 	Osborne v. Drees Homes of
Fla., Inc., 396 So. 3d 50, 53 (Fla. 5th DCA 2024). 	While the court
determines whether the parties agreed to arbitrate a particular dispute,
1 We previously dismissed that portion of the appeal directed at the order denying
the motion to amend the counterclaim, as we do not have jurisdiction to review
that non-final order.

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the court “cannot rule on the merits of any underlying claims.” 	Johnson
v. Hubbard Broad., Inc., 940 F. Supp. 1447, 1453 (D. Minn. 1996).
Enacted in 2022, the federal EFAA states that, at the election of the
person alleging sexual harassment or assault, “no predispute arbitration
agreement . . . shall be valid or enforceable with respect to a case which is
filed under Federal, Tribal, or State law and relates to the sexual assault
dispute or the sexual harassment dispute.” 9 U.S.C. § 402(a). The statute
defines 	a 	“predispute 	arbitration 	agreement” 	as 	“any 	agreement 	to
arbitrate a dispute that had not yet arisen at the time of the making of the
agreement.” 	9 U.S.C. § 401(1). 	“In a statutory note, Congress provided
that EFAA ‘shall apply with respect to any dispute or claim that arises or
accrues on or after the date of enactment of this Act,’ which was March 3,
2022.”2 Memmer v. United Wholesale Mortg., LLC, 135 F.4th 398, 407 (6th
Cir. 2025) (quoting 9 U.S.C. § 401 note).
In determining when a “dispute” arises under the EFAA, “[t]he relevant
question is when the parties became adverse to one another.” 	Id. at 409.
The term “dispute” denotes “a controversy between the parties regarding
certain kinds of conduct . . . which may support claims under state and
federal law.” 	Id. at 408. 	“[W]hen a dispute arises is a fact-dependent
inquiry that can be determined in the context of each case.” 	Id. at 409.
Evidence that the parties have become “adverse” can include “when an
injured party sends the defendant a demand letter, files an administrative
charge, requests arbitration, commences a lawsuit, or some other event
occurs.” 	Id.
“[T]he EFAA directly amends the FAA and its liberal federal policy
favoring arbitration agreements to permit a party to choose to invalidate
the application of an arbitration agreement to a case that contains claims
that relate to a sexual harassment dispute or a sexual assault dispute.”
Newton v. LVMH Moet Hennessy Louis Vuitton Inc., 746 F. Supp. 3d 135,
150 (S.D.N.Y. 2024) (cleaned up), opinion vacated in part on other grounds,
No. 23-CV-10753 (LAP), 2025 WL 1826583 (S.D.N.Y. July 2, 2025). “[T]he
text 	of 	§ 	402(a) 	makes 	clear 	that 	its 	invalidation 	of 	an 	arbitration
agreement extends to the entirety of the case relating to the sexual
harassment dispute, not merely the discrete claims in that case that
themselves either allege such harassment or relate to a sexual harassment
dispute (for example, a claim of unlawful retaliation for a report of sexual
harassment).” 	Johnson v. Everyrealm, Inc., 657 F. Supp. 3d 535, 559
(S.D.N.Y. 2023). 	In other words, “where a dispute presents multiple
2 Appellees make no argument that the EFAA is inapplicable here because the
claim arose prior to the effective date of the Act.

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claims—some related to sexual harassment, others not—the EFAA blocks
arbitration of the entire case.” 	Delo v. Paul Taylor Dance Found., Inc., 685
F. Supp. 3d 173, 180 (S.D.N.Y. 2023).
The enforcement of an arbitration clause in a postdispute settlement
agreement 	falls 	outside 	the 	EFAA 	prohibition 	because, 	as 	its 	name
indicates, such an agreement was created after the dispute at issue had
arisen between the parties.
In the context of settlement agreements, it is well-settled that “one who
agrees to settle his claim cannot subsequently seek both the benefit of the
settlement and the opportunity to continue to press the claim he [or she]
agreed to settle.” Kirby v. Dole, 736 F.2d 661, 664 (11th Cir. 1984); accord
Hearns v. Sch. Bd. of Polk Cnty., Fla., No. 8:23-CV-985-SDM-NHA, 2024
WL 1885700, at *3 (M.D. Fla. Apr. 30, 2024). 	“[T]he appropriate relief in
court for breach of a settlement agreement is a breach of contract claim,
rather than fresh claims based on the same underlying conduct.” Benson
v. Cornerstone Hospice & Palliative Care, Inc., No. 8:23-CV-02251-WFJ-
UAM, 2023 WL 8716767, at *2 (M.D. Fla. Dec. 18, 2023).
For example, in Benson, the court held that post-settlement retaliation
claims, which alleged that the defendant had failed to comply with the
settlement agreement, suffered from a fundamental flaw because they
were merely “a repackaged breach of settlement claim.” 	Id. at *3. 	A
retaliation claim requires “showing some adverse action other than breach
of the settlement agreement.” 	Id. (footnote omitted).
For multiple reasons, the circuit court did not err in concluding that
the CSA’s arbitration clause fell outside the EFAA.
First, the trial court was not required to consider Richards’s state FCRA
retaliation claim because it was neither pleaded nor pending before the
court when the order on appeal issued. 	Florida law prohibits courts from
awarding relief that is not framed by the pleadings. 	Turgman v. Boca
Woods Country Club Ass’n, 198 So. 3d 1125, 1126 (Fla. 4th DCA 2016).
Richards admitted at the hearing below that she intended to amend her
counterclaim at some point in the future to add retaliation claims under
the FCRA, but the amendment was eventually denied by the trial court
and never became part of the operative pleadings.
Second, on the key legal issue, the circuit court correctly ruled that the
EFAA did not invalidate the arbitration provision in the CSA. The dispute
in this case arose no later than June 2022, when Richards filed her EEOC
claim. The CSA was a postdispute agreement executed in May 2023. The

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EFAA applies exclusively to predispute arbitration agreements, so the CSA
clearly fell outside the scope of the EFAA. 	Because the CSA’s arbitration
clause was a postdispute agreement, the parties’ competing claims for
breach of the CSA were subject to arbitration. Importantly, no new sexual
harassment or assault was alleged to have occurred after the execution of
the CSA.
Third, 	the 	claim 	that 	appellees’ 	alleged 	post-settlement 	conduct—
breaching the CSA by issuing a K-1 and filing a meritless arbitration
proceeding—was retaliatory does not transform a postdispute settlement
agreement into a predispute one under the EFAA. 	The important point
under that federal statute is that the parties became adverse to each other
with respect to the sexual harassment dispute before they agreed to the
arbitration 	clause 	in 	the 	CSA. 	Postsettlement 	disagreements 	with
performance under the CSA fell under the agreement’s arbitration clause.
Fourth, Richards’s interpretation of the EFAA would allow parties to
evade 	valid 	arbitration 	clauses 	in 	settlement 	agreements 	simply 	by
characterizing any dispute arising out of the settlement as a new or
retaliatory dispute that “relates to” the original sexual harassment. 	This
interpretation would lead to an absurd result, frustrating Congress’s
intent to draw a clear distinction between predispute and postdispute
arbitration agreements. 	Richards accepted monetary and other benefits
under the CSA. 	Richards cannot simultaneously enforce the CSA’s terms
by alleging that the appellees breached, while avoiding its arbitration
provision. 	The plain language of the EFAA was designed to prevent
employers 	from 	forcing 	employees 	into 	arbitration 	before 	any 	sexual
harassment dispute arises, not to invalidate arbitration clauses in valid
settlement agreements negotiated with counsel after disputes emerged.
The cases cited by Richards are distinguishable because each involved
arbitration provisions contained in employment agreements signed before
any sexual harassment dispute arose.3 Those cases thus involved classic
predispute agreements falling squarely within the EFAA’s coverage.
Neither Richards’s Claim that the Appellees Breached
the CSA Nor Public Policy Discharged Her Obligation to
Arbitrate
Richards next argues that the arbitration clause was unenforceable for
two reasons: (1) appellees materially breached the CSA by issuing Richards
3 See, e.g., Newton, 746 F. Supp. 3d at 146; Johnson, 657 F. Supp. 3d at 542;
Delo, 685 F. Supp. 3d at 179.

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a K-1, thereby discharging her obligations under the CSA, including the
obligation to arbitrate; and (2) the arbitration clause violates public policy
“because it is contrary to 9 U.S.C. § 402” and is thus unenforceable.
Both claims are without merit.
First, appellees’ alleged material breach of the CSA did not relieve
Richards 	of 	the 	obligation 	to 	arbitrate, 	as 	the 	arbitration 	clause 	is
severable from the remainder of the CSA. 	See Buckeye Check Cashing,
Inc. 	v. 	Cardegna, 	546 	U.S. 	440, 	445–46 	(2006) 	(explaining 	that 	“an
arbitration provision is severable from the remainder of the contract,” so
“unless the challenge is to the arbitration clause itself, the issue of the
contract’s validity is considered by the arbitrator in the first instance”).
Issues regarding whether appellees breached the CSA must be resolved by
the arbitrator.
Second, the CSA’s arbitration clause does not violate the EFAA or any
other public policy. 	To be sure, public policy is a “generally applicable
contract 	defense” 	that 	may 	be 	applied 	to 	invalidate 	an 	arbitration
agreement without violating the FAA. 	Shotts v. OP Winter Haven, Inc., 86
So. 3d 456, 464–65 (Fla. 2011). 	However, the arbitration agreement at
issue here is not void as against public policy.
As explained above, the EFAA does not apply because the CSA was a
postdispute settlement agreement negotiated by parties represented by
counsel to resolve an existing sexual harassment claim. 	Moreover, none
of Richards’s cited cases apply because the arbitration agreement in this
case has no restrictions on statutory remedies, no illegal purpose, and no
formation defects. 	See Shotts, 86 So. 3d at 474 (holding an arbitration
agreement unenforceable as against public policy where it waived punitive
damages 	and 	incorporated 	American 	Health 	Lawyers 	Association
procedural 	rules, 	thereby 	undermining 	the 	statutory 	remedies 	of 	the
Nursing Home Residents’ Rights Act); Gessa v. Manor Care of Fla., Inc., 86
So. 3d 484, 492–93 (Fla. 2011) (invalidating an arbitration agreement that
imposed a $250,000 cap on noneconomic damages and waived punitive
damages, as such limitations violated public policy by frustrating statutory
remedies); Harris v. Gonzalez, 789 So. 2d 405, 407–09 (Fla. 4th DCA 2001)
(finding an agreement between a physician and a supplement distributor
void as against public policy because it involved illegal kickbacks and fee-
splitting in violation of the Patient Self-Referral Act; no arbitration clause
was at issue); UATP Mgmt., LLC v. Barnes, 320 So. 3d 851, 857–58 (Fla. 2d
DCA 2021) (holding that an arbitration agreement could not bind minor
child where the agreement was signed by a family friend who lacked
apparent authority, resulting in a defect in contract formation).

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Conclusion
We have considered the other issues raised but determine that they are
without merit. 	The order compelling arbitration is affirmed.
Affirmed.
CIKLIN and C ONNER , JJ., concur.
* 	* 	*
Not final until disposition of timely-filed motion for rehearing.