Plumbers Welfare Fund, Local 130 v. CVS Health Corporation

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
SHEET METAL WORKERS LOCAL
NO. 20 WELFARE AND BENEFIT
FUND; and INDIANA CARPENTERS
WELFARE FUND,
on behalf of
themselves and all others similarly
situated,
Plaintiffs,
v.
CVS PHARMACY, INC.,
Defendant.
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No. 16-cv-046-JJM-PAS
PLUMBERS WELFARE FUND,
LOCAL 130,
on behalf of itself and all
others similarly situated,
Plaintiff,
v.
CVS PHARMACY, INC.,
Defendant.
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No. 16-cv-447-JJM-PAS
MEMORANDUM AND ORDER
JOHN J. MCCONNELL, JR., United States District Court Chief Judge.
Plaintiffs are third-party payors (“TPPs”), or health plans, that have brought
a class action lawsuit against Defendant CVS Pharmacy, Inc. (“CVS”). 	In essence,
Plaintiffs 	claim 	that 	CVS 	conspired 	with 	various 	pharmacy 	benefit 	managers
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(“PBMs”) to defraud and overcharge Plaintiffs for prescription drugs. ECF No. 171.1
In 2021, the Court granted Plaintiffs’ Motion to Certify this case as a class action (i.e.,
the “Certification Order”). ECF No. 179.
CVS has now asked the Court to amend the class to exclude the claims of class
members that contracted with PBM Express Scripts.2
	See ECF No. 276. 	Plaintiffs
oppose CVS’s motion.
See ECF No. 282. For the reasons explained below, the Court
DENIES CVS’s Motion to Amend the Class Definition.
I. 	BACKGROUND
The Court assumes the parties’ familiarity with the underlying facts and the
Court’s previous orders in this long-running dispute.
See, e.g.,
Sheet Metal Workers
Local No. 20 Welfare & Benefit Fund v. CVS Health Corp. (
Sheet Metal Workers I),
221 F. Supp. 3d 227, 239-40 (D.R.I. 2016) (denying CVS’s motion to dismiss);
Sheet
Metal Workers Local No. 20 Welfare & Benefit Fund v. CVS Pharmacy, Inc. (
Sheet
Metal Workers II), 540 F. Supp. 3d 182, 220 (D.R.I. 2021) (certifying this class action);
Sheet Metal Workers Local No. 20 Welfare & Benefit Fund v. CVS Pharmacy, Inc.
(
Sheet Metal Workers III), Nos. 16-046 WES, 16-447 WES, 2024 WL 6881816, at *8
(D.R.I. May 23, 2024) (amending
Sheet Metal Workers II and excluding the claims of
1 All ECF Nos. in this order correspond with the lead case number, No. 16-cv-
046-JJM-PAS.
2 CVS’s motion also seeks to exclude the claims of class members that
contracted with PBM Medco. ECF No. 276-1 at 9 n.4 (“[T]he relief sought pertains to
both [PBMs].”). 	Express Scripts acquired Medco in 2012, so the parties have
generally addressed the two PBMs together.
Id. For simplicity, whenever the Court
refers to “Express Scripts” in this order, it means to refer to
both Express Scripts
and
Medco.
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certain class members with non-delegated arbitration agreements);
Sheet Metal
Workers Local No. 20 Welfare & Benefit Fund v. CVS Pharmacy, Inc. (
Sheet Metal
Workers IV), Nos. 16-cv-046-JJM-PAS, 16-cv-447-JJM-PAS, 2026 WL 278704, at *13
(D.R.I. Feb. 3, 2026) (modifying
Sheet Metal Workers III on reconsideration and
dismissing 	the 	claims 	of 	certain 	class 	members 	with 	delegated 	arbitration
agreements);
Sheet Metal Workers Local No. 20 Welfare & Benefit Fund v. CVS
Pharmacy, Inc. (
Sheet Metal Workers V), Nos. 16-cv-046-JJM-PAS, 16-cv-447-JJM-
PAS, 2026 WL 394830, at *5 (D.R.I. Feb. 12, 2026) (clarifying
Sheet Metal Workers
IV and finding that CVS had not waived its right to compel arbitration).
The Court will briefly recount a few facts that are relevant to the present
motion. 	Generally, pharmacies must report their Usual and Customary (“U&C”)
prices, which are the prices for generic prescription drugs that they charge to
consumers at the retail level without the use of insurance.
See Sheet Metal Workers
I, 221 F. Supp. 3d at 229-30. 	In 2008, CVS introduced its Health Savings Pass
(“HSP”) program, which provided reduced pricing for generic prescription drugs to
individuals who paid an annual membership fee.
	Id. at 230. 	Plaintiffs allege that
CVS, by failing to treat its HSP prices as its U&C prices, thereafter engaged in a
nationwide scheme with various PBMs to overcharge Plaintiffs for drugs.
	See ECF
No. 171.
In 2021, the Court certified this case as a class action.
	See Sheet Metal
Workers II, 540 F. Supp. 3d at 220. 	As part of its Certification Order, the Court
certified four distinct classes: (1) a “Nationwide Class”; (2) an “Unjust Enrichment
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Class”; (3) an “Unfair and Deceptive Conduct Consumer Protection Class”; and (4) an
“Omissions Consumer Protection Class.”
	Id. at 197. Each class definition currently
begins as follows: “All health plans that, at any time between November 2008 and
February 1, 2016, (1) had Caremark, L.L.C., Express Scripts, Medco, or MedImpact
(or any of their predecessors) as their pharmacy benefit managers.”3
See ECF No. 285
at 2-4. 	The Court has referred to the contracts between the Plaintiff TPPs and the
PBMs as “the TPP-PBM contracts.”
Before going any further, there are two important things to bear in mind about
this case. First, CVS is not a party to any of the contracts at issue in this action; as
the name would suggest, the TPP-PBM contracts are just between the TPPs and the
PBMs. 	Second, none of the PBMs, including Express Scripts, are a party to this
litigation; this class action is solely between the TPPs and CVS.4
Moving on, after the Court entered its Certification Order, the parties engaged
in discovery and requested that the PBMs (again, non-parties to this litigation)
produce their TPP-PBM contracts. Two PBMs, Caremark and MedImpact, complied
with this request.
	See ECF No. 211-1 at 1 (observing that Caremark “completed its
production of contracts with those TPPs who might be members of the certified
3 Each class definition previously included PBM OptumRx as well.
	See Sheet
Metal Workers II, 540 F. Supp. 3d at 197. 	However, as of December 11, 2025, the
parties have jointly stipulated to amend the class definitions to exclude the OptumRx-
related claims.
	See ECF No. 285. 	The Court entered that stipulation a day later.
See Text Order (Dec. 12, 2025).
4 PBM Caremark initially was a named defendant, but the Court dismissed
Caremark from this lawsuit on May 23, 2024.
See Sheet Metal Workers III, 2024 WL
6881816, at *2.
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classes”); ECF No. 253-1 at 1 (observing that MedImpact “completed its contract
production related to the certified class”).
PBM Express Scripts, however, has so far refused to produce any of its TPP-
PBM contracts.
See ECF No. 276-1 at 16. In 2023, both Plaintiffs and CVS moved to
compel Express Scripts to produce its contracts in the U.S. District Court for the
Eastern District of Missouri, where Express Scripts is based.
See Sheet Metal Works
Local No. 20 Welfare & Benefit Fund v. Express Scripts, Inc., No. 4:23-mc-1075-HEA
(E.D. Mo. Sept. 22, 2023). The status of that case still remains pending at this time. 5
Last year, CVS moved to amend the class to exclude the claims of Plaintiffs
that contracted with Express Scripts. 	ECF No. 276. 	CVS argues that, because
Express Scripts has failed to produce its contracts, then the class definitions must be
modified to omit the Express Script-related claims.
	Id. at 3. 	CVS’s proposed
amendment reads as follows: “All health plans that, at any time between November
2008 and February 1, 2016, (1) had Caremark, L.L.C. or MedImpact (or any of their
predecessors) as their pharmacy benefit managers.”
Id. at 19 n.8. Plaintiffs object to
amending the class definitions.
See ECF No. 282.
Since that motion was filed, Plaintiffs have filed a notice, informing the Court
that Express Scripts produced a “data dictionary” to Plaintiffs’ damages expert, Dr.
5 Though the Missouri federal court initially granted the parties’ motion to
compel Express Scripts to produce its TPP-PBM contracts, Express Scripts later filed
a motion for reconsideration, which the court has yet to rule on.
	See ECF No. 276-1
at 16. 	Plaintiffs have since withdrawn their motion to compel. 	ECF No. 295 at 3.
CVS, however, continues to actively pursue the motion. ECF No. 302 at 3.
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Rena Conti, 6 which allowed her to identify those class members that had contracted
with Express Scripts by using the criteria identified by the Court in its Certification
Order. 	ECF No. 295 at 2-3. 	As such, Plaintiffs now contend that Express Scripts’
contract production is no longer necessary.
Id. at 3. CVS has filed a response to this
notice, disputing Plaintiffs’ assertion and arguing that it still requires Express
Scripts’ TPP-PBM contracts. ECF No. 302 at 3.
II. 	LEGAL STANDARD
Rule 23(c)(1)(C) of the Federal Rules of Civil Procedure provides that “[a]n
order that grants or denies class certification may be altered or amended before final
judgment.” 	Fed. R. Civ. P. 23(c)(1)(C);
see also Gen. Tel. Co. of Sw. v. Falcon, 457
U.S. 147, 160 (1982) (“Even after a certification order is entered, the judge remains
free to modify it in the light of subsequent developments in the litigation.”). “Indeed,
it is not uncommon to defer final decision on certifications pending completion of
relevant discovery.”
	In re New Motor Vehicles Canadian Exp. Antitrust Litig., 522
F.3d 6, 26-27 (1st Cir. 2008).
“When a party—typically the plaintiff—moves for class certification, it bears
the burden of establishing that its claim satisfies each element of Rule 23(a).”
Herbert B. Newberg & William B. Rubenstein, 3 Newberg & Rubenstein on Class
Actions § 7:39 (6th ed. Dec. 2025 update). 	However, when a party—typically the
6 When this class was first certified, Dr. Conti was the same expert who
assured the Court that the methods to be used to identify class members and
demonstrate liability were reliable and methodologically sound.
	See Sheet Metal
Workers II, 540 F. Supp. 3d at 202-03, 217.
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defendant—later moves for decertification or modification of the class, courts within
the First Circuit have held that the movant bears the burden of proving that the class
no longer meets the requirements of Rule 23.7
	See id.;
cf. Barrett v. Option One
Mortg. Corp., No. 08-10157-RWZ, 2012 WL 4076465, at *2 (D. Mass. Sept. 18, 2012)
(holding that, under Rule 23(c)(1)(C), [t]he moving party bears the burden of showing
that decertification is proper”);
Donovan v. Philip Morris USA, No. 06-12234-DJC,
2012 WL 957633, at *4 (D. Mass. Mar. 21, 2012) (same).
Decertifying or redefining the scope of a class is viewed as a “drastic” step and
should only be done where a movant has met their “heavy burden” of proving the
necessity of taking such a step.
Donovan, 2012 WL 957633, at *4 (citing
In re Vivendi
Universal, S.A. Sec. Litig., No. 02 Civ. 5571(RJH)(HBP), 2009 WL 855799, at *3
(S.D.N.Y. Mar. 31, 2009)). 	“In assessing whether class certification remains viable,
the Court must consider not only developments of the factual record but also any
7 Some courts in other circuits considering motions for decertification or
modification have held that the party that initially sought certification continues to
bear the burden to prove that certification remains appropriate.
	See, e.g.,
Munoz v.
PHH Mortg. Corp., 478 F. Supp. 3d 945, 984-85 (E.D. Cal. 2020) (“Although plaintiffs
are the non-moving party, as the party seeking to maintain class certification, they
nonetheless ‘bear[ ] the burden of demonstrating that the requirements of Rules 23(a)
and (b) are met.’”);
D.G. ex rel. Strickland v. Yarbrough, 278 F.R.D. 635, 644 (N.D.
Okla. 	2011) 	(holding 	that 	the 	plaintiffs 	“have 	met 	the 	burden 	… 	to 	survive
defendants’ motion to decertify the class”).
Other courts acknowledge that “[t]he question of which party has the burden
on a motion to decertify a previously certified class is not settled.”
Walney v. SWEPI
LP, No. 13-102 Erie, 2019 WL 1436938, at *3 n.3 (W.D. Pa. Mar. 31, 2019) (citing
In
re Pharmacy Benefit Managers Antitrust Litig., Nos. 06-1782, 03-4730, 06-4305, 06-
4114, 06-4115, 2017 WL 275398, at *34 (E.D. Pa. Jan. 18, 2017)).
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newly announced legal precedent.”
	Loef v. First Am. Title Ins. Co., No. 2:08-cv-311-
GZS, 2012 WL 6113844, at *1 (D. Me. Dec. 10, 2012).
III. 	DISCUSSION
Consistent with the decisions of its sister courts, this Court will place the
burden on CVS to show that modification of the class definition to exclude Express
Scripts-related claims is necessary.
Barrett, 2012 WL 4076465, at *2;
Donovan, 2012
WL 957633, at *4. In its motion, CVS advances three arguments, each of which center
on Express Scripts’ failure thus far to produce its TPP-PBM contracts: (1) without the
contracts, the parties will be unable to identify the individuals that meet the criteria
for class membership; (2) without the contracts and the “generic effective rate”
(“GER”) clauses8 contained in those contracts, the parties will be unable to properly
assess liability; and (3) without the contracts and the “alternative dispute resolution”
(“ADR”) provisions9 contained in those contracts, the parties will be unable to
8 A GER clause “guarantees that a TPP will receive an average percentage
discount off a benchmark price (e.g., average wholesale price) for all drugs in a
category (e.g., all generic drugs) for a specified period of time (e.g., one calendar
year).”
	Sheet Metal Workers I, 540 F. Supp. 3d at 213. 	“In practice, it looks
something like this: a PBM guarantees its contracting TPP that it will receive an
average 	discount 	of 	70% 	off 	the 	average 	wholesale 	price 	(“AWP”) 	for 	generic
prescription drugs for calendar year 2021.”
Id. “For any one generic drug, the TPP’s
discount may be higher than 70%.... But in the aggregate, the health plan is entitled
to a 70% (or greater) discount off AWP for generic drugs.”
Id. “In this example, if the
TPP paid more than 30% of AWP for the generic drugs purchased in 2021, the PBM
would issue a reconciliation payment to make up the difference.”
Id.
9 An ADR provision is a provision in a contract that permits a party to that
contract (or, in some cases, a nonparty) to compel the other party to take their dispute
out of federal court and into arbitration or mediation.
	See Sheet Metal Workers III,
2024 WL 6881816, at *2;
Sheet Metal Workers IV, 2026 WL 278704, at *2.
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determine which claims must be sent to arbitration or mediation.
See ECF No. 276-
1 at 21-28. The Court will address each argument in turn.
A. 	Ascertainability Requirement
CVS first argues that the class, as presently constituted, raises ascertainability
concerns.
	See ECF No. 276-1 at 21-23. 	The First Circuit has explained that “the
definition of the class must be ‘definite,’ that is, the standards must allow the class
members to be ascertainable.”
In re Nexium Antitrust Litig., 777 F.3d 9, 19 (1st Cir.
2015) (internal citations omitted). 	CVS claims that, without the contracts from
Express Scripts, Plaintiffs have no way of identifying which class members have
Express 	Scripts-related 	claims. 	ECF 	No. 276-1 	at 22 	(“It 	all 	depends 	on 	the
contracts.”).
CVS’s 	position 	is 	unpersuasive, 	especially 	given 	that 	the 	Court 	already
addressed this exact issue in its Certification Order.
	See Sheet Metal Workers II,
540 F. Supp. 3d at 202-205. Back in 2021, CVS argued that there was no manageable
way to identify which TPPs belonged in the class and asserted that “to determine
class membership, one would need to review thousands of contracts.”
	Id. at 203. At
the time, Plaintiffs countered and stated that class members could be identified, not
only from the TPP-PBM contracts themselves, but also from “existing PBM data.”
Id.
at 204. 	Plaintiffs proposed that their expert, Dr. Conti, could develop and deploy a
computer program using electronic claims data maintained by the PBMs for each TPP
to identify those who would be properly included in the putative class.
Id. Plaintiffs
also offered that, “[a]s a fallback position, if the PBMs fail[ed] to produce the requisite
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data,” then they would “review each of the contracts … [to] determine whether each
contract indicated ‘presumptive class membership.’”
Id.
In its Certification Order, the Court approved of Plaintiffs’ methodology,
stating that it was “satisfied that Plaintiffs have demonstrated an administratively
feasible method by which to determine which TPPs” belong in the class.
Id. Indeed,
the Court expressly endorsed Plaintiffs’ approach of using
either contracts
or datasets
to identify class members.
Id. (“At bottom, whether a health plan or TPP is a member
of 	the 	proposed 	class 	is 	objectively 	ascertainable 	from 	either 	documents 	(i.e.,
contracts) or datasets.”).
Since then, Express Scripts has produced a “data dictionary” to Dr. Conti,
which has allowed her to identify class members with Express Scripts-related claims
“without the need for any contract review.” 	ECF No. 295 at 2-3.10 	That Express
Scripts has not yet produced its TPP-PBM contracts is beside the point. 	The Court
viewed contract production as merely a “fallback position” and endorsed Dr. Conti’s
use of datasets.
	Sheet Metal Workers II, 540 F. Supp. 3d at 204. 	CVS is simply
attempting to relitigate 11 ascertainability, but five years later, Plaintiffs have done
10 Dr. Conti’s report has been filed under seal and can be found at ECF No. 296.
11 As before, the Court notes that this case was previously assigned to Judge
William E. Smith but was later transferred to the current presiding judge after Judge
Smith’s retirement from judicial service.
Sheet Metal Workers IV, 2026 WL 278704,
at *2 n.8. As at least one federal court of appeals has observed, the transfer of a case
to a new judge does not open the door for a litigant to have a second bite of the apple.
See Williams v. C.I.R., 1 F.3d 502, 503 (7th Cir. 1993) (“Litigants have a right to
expect that a change in judges will not mean going back to square one. 	The second
judge may alter previous rulings if new information convinces him that they are
incorrect, but he is not free to do so … merely because he has a different view of the
law or facts from the first judge.”).
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exactly what was expected of them. 	The Court therefore remains satisfied that
Plaintiffs meet the ascertainability requirement.
B. 	Predominance Requirement
CVS next argues that Plaintiffs cannot prove liability—neither injury nor
damages—without Express Scripts’ TPP-PBM contracts and their accompanying
GER 	clauses. 	ECF 	No. 276-1 	at 23-28. 	CVS 	contends 	that 	such 	issues 	risk
undermining Rule 23(b)(3)’s predominance requirement, which requires a court to
“find[ ] that the questions of law or fact common to class members predominate over
any questions affecting only individual members.”
	Id. at 23 (quoting Fed. R. Civ. P.
23(b)(3)).
With respect to predominance, where a putative class action raises individual
issues for adjudication, a class may be certified only if “the proposed adjudication will
be both ‘administratively feasible’ and ‘protective of defendants’ Seventh Amendment
and due process rights.’”
In re Asacol Antitrust Litig., 907 F.3d 42, 52 (1st Cir. 2018)
(quoting
Nexium, 777 F.3d at 19). Thus, before certifying a class, a court must “offer
a reasonable and workable plan for how that opportunity will be provided in a manner
that 	is 	protective 	of 	the 	defendant’s 	constitutional 	rights 	and 	does 	not 	cause
individual inquiries to overwhelm common issues.”
Id. at 58.
1. 	Injury
First, with respect to CVS’s injury argument, the Court has previously stated
that “each alleged injury [in this class action] stems from an overcharge paid by a
TPP as a result of an inflated U&C price.”
	Sheet Metal Workers II, 540 F. Supp. 3d
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at 214. When CVS initially opposed class certification, it argued that it was necessary
to review each of the TPP-PBM contracts because it viewed the GER clauses
contained in those contracts as “negat[ing] injury in fact and/or any damages from
alleged overstated U&C prices.”
Id. at 213. However, the Court later concluded that
“GERs are not relevant to putative class TPP injury in fact.”
Id. This was so because
the injuries Plaintiffs allege fully accrued when each claim was adjudicated and paid;
they did not occur, by contrast, at a future point when some Plaintiffs (but not all)
may have received GER reconciliation payments.
	Id. at 214. 	Five years later, CVS
maintains that GER data is “essential” to prove injury,
see ECF No. 284 at 6, but this
Court’s opinion remains unchanged on this issue.
But the contracts still remain relevant for identifying those Plaintiffs who were
or were not entitled to “lower-of U&C pricing,” so says CVS. ECF No. 276-1 at 10, 24.
Recall that, to fall within the class, “a TPP or health plan must have been entitled to
‘lower-of U&C pricing’ … during the class period.”
	Sheet Metal Workers II, 540 F.
Supp. 3d at 203. 	“Lower-of pricing provides that, for specified prescription drugs, a
TPP will pay the lowest of several pricing metrics, often including the U&C.”
Id. In
other words, CVS cannot be held liable to those Plaintiffs who were not entitled to
“lower-of U&C pricing,”
see id. at 207, but CVS argues that “there is no way” for it to
challenge liability as to each Plaintiff without reviewing each contract for its lower-
of U&C pricing language. ECF No. 276-1 at 25;
see also ECF No. 284 at 17-18.
Once again, this is an issue previously contemplated by the Court in its
Certification Order—and not one that requires modification of the class. Back then,
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Plaintiffs had demonstrated to the Court that, through their expert, they were
“capable of using algorithms, or undertaking contract-by-contract review, to identify
the universe of lower-of U&C pricing.”
	Sheet Metal Workers II, 540 F. Supp. 3d
at 208. Indeed, Dr. Conti purports to have done just that: she has since produced an
expert report, which explains that Express Scripts has provided a data dictionary
that has allowed her to identify the Express Script-related claims “with U&C in the
lower of formula.” ECF No. 295 at 2. Of course, if this case proceeds to trial, a jury
will determine whether this evidence is sufficient to prove that CVS is liable for the
Express Scripts-related claims. 	For now, however, this is not a valid reason to
exclude those claims from this class action.
2. 	Damages
The Court’s Certification Order also addressed any concerns relating to the
calculation of damages.
	See Sheet Metal Workers II, 540 F. Supp. 3d at 215-219.
With respect to whether damages will be offset by GER reconciliation payments, the
Court approved of Dr. Conti using two types of methods to incorporate GER offsets
into her damages calculation: either a calculation involving reconciliation payment
data or, in the alternative, a calculation involving the review of “all PBM contracts
for a range of annual GER guarantees and [the identification of] each PBM’s highest
GER guarantee for each year.”
	Id. at 215-16. 	The Court was assured that either
method would be a “‘reasonable and workable plan’ for determining the effect of a
GER on the putative class members’ damages ‘that is protective of the [CVS’s]
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constitutional rights and does not cause individual inquiries to overwhelm common
issues.’”
Id. at 216 (quoting
Asacol, 907 F.3d at 58).
At least with regard to the Express Script-related claims, Plaintiffs’ expert
appears to be using the first method contemplated by the Court.
	See ECF No. 295
at 2-3. Dr. Conti is using the data supplied by Express Scripts,
see id., as well as data
supplied by CVS itself earlier in this litigation,
see ECF No. 282 at 12-13, which this
Court previously approved of being used as a proxy for any missing data in calculating
damages.
	Sheet 	Metal 	Workers 	II, 	540 	F. 	Supp. 	3d 	at 218. 	Based 	on 	this
methodology, Dr. Conti has proceeded in producing a damages calculation, albeit a
“conservative” 	one 	that 	likely 	“underestimates 	the 	overcharges 	attributable 	to
[CVS’s] alleged fraud.”
	Id. at 218;
see ECF No. 295 at 2-3. 	As the Supreme Court
has observed, “[c]alculations need not be exact,” but the model used to calculate
damages should at least, between the class certification stage and trial, be consistent
with the plaintiff’s theory of liability.
	Comcast Corp. v. Behrend, 569 U.S. 27, 35
(2013) (citing
Stroy Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555,
563 (1931)). 	Here, Dr. Conti continues to use a method endorsed by this Court and
one that is consistent with Plaintiffs’ theory of liability. 	Thus, the Court sees no
reason to amend the class definition on this basis either.
C. 	ADR Provisions
Finally, CVS argues that it has no way of determining which Express Scripts-
related claims it is entitled to send to arbitration or mediation without access to
Express Scripts’ contracts and their accompanying ADR provisions. 	ECF No. 276-1
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at 27-28; ECF No. 284 at 5. CVS suspects that there is likely a “significant” number
of Express Scripts contracts with ADR provisions. 	ECF No. 276-1 at 27. 	Plaintiffs
counter by pointing out that it is CVS that must “prove its right to invoke arbitration,
especially as a nonparty to those agreements,” and that “it makes little sense to
decertify a class as to certain class members where the defendant failed to gather the
evidence necessary to support its defenses against them.” ECF No. 282 at 15-16.
The Court agrees with Plaintiffs. 	On this issue, the First Circuit has been
clear: “a party that attempts to compel arbitration ‘must show [1] that a valid
agreement to arbitrate exists, [2] that the movant is entitled to invoke the arbitration
clause, [3] that the other party is bound by that clause, and [4] that the claim asserted
comes within the clause’s scope.’”
Hogan v. SPAR Grp., Inc., 914 F.3d 34, 38 (1st Cir.
2019) (quoting
Ouadani v. TF Final Mile LLC, 876 F.3d 31, 36 (1st Cir. 2017));
see
also Morales-Posada v. Cultural Care, Inc., 141 F.4th 301, 318 (1st Cir. 2025) (“A
nonsignatory ‘faces a steep climb’ to show that it may enforce an agreement to which
it is not a party, and must, as we have noted, make that showing with ‘special
clarity.’” (internal citations omitted)).
Thus, as the party seeking to arbitrate the Express Scripts-related claims, CVS
bears the burden of seeking and obtaining the Express Scripts contracts.
See Hogan,
914 F.3d at 38;
Morales-Posada, 141 F.4th at 318. 	Indeed, after obtaining the
contracts of PBMs Caremark and MedImpact, CVS successfully moved to compel
arbitration of those claims once the Court found that it was entitled to nonsignatory
enforcement.
	See Sheet Metal Workers III, 2024 WL 6881816, at *3-8;
Sheet Metal
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Workers IV, 2026 WL 278704, at *9-12. Here, by contrast, CVS simply cannot show
that it is entitled to invoke the ADR provisions that may be contained in the Express
Scripts contracts. 	The Court therefore sees no reason to amend the class on this
ground either.
IV. 	CONCLUSION
For the following reasons, the Court DENIES CVS’s Motion to Amend the class
to exclude the Express Scripts-related claims. ECF No. 276. The class will proceed
as presently constituted.
IT IS SO ORDERED.
s/John J. McConnell, Jr.
_________________________________
JOHN J. MCCONNELL, JR.
Chief Judge
United States District Court
March 9, 2026
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