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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C.A. 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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C.A. No. 16-cv-447-JJM-PAS
ORDER
I. 	INTRODUCTION
Last year, Plaintiffs (also known as “third-party payors” or “TPPs”) in this class
action filed a motion, 1 requesting that the Court reconsider its prior Arbitration
1 Though styled as a “Motion to Vacate,” the Court treated Plaintiffs’ motion
as a “Motion for Reconsideration” because Plaintiffs invoked Rule 54(b) of the Federal
Rules of Civil Procedure, which authorizes courts to “reconsider” interlocutory orders
“within [their] sound discretion.”
	Homeowner Options for Mass. Elders, Inc. v.
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Orders, which had the effect of placing some of the class members into subclasses and
staying their claims. ECF No. 2732 ;
see also ECF No. 238; Text Order (Feb. 14, 2025).
On February 3, 2026, the Court entered an order (i.e., “the February 3rd Order”),
granting Plaintiffs’ motion, lifting the Court’s earlier stay, and eliminating the
previously created subclasses. ECF No. 289 at 29-30;
see also Sheet Metal Workers
Local No. 20 Welfare & Benefit Fund v. CVS Pharmacy, Inc., Nos. 16-cv-046-JJM-
PAS, 16-cv-447-JJM-PAS, 2026 WL 278704, at *13 (D.R.I. Feb. 3, 2026).
As part of the February 3rd Order, the Court also allowed the claims of some
class members to proceed in federal court, while also dismissing the claims of other
class members because the Court found that CVS Pharmacy, Inc. (“CVS”) could
compel arbitration of those claims. ECF No. 289 at 29.
Plaintiffs 	have 	now 	filed 	a 	Motion 	to 	Clarify 	the 	February 3rd 	Order,
requesting that the Court address whether CVS has waived its right to arbitrate the
claims of class members that have been dismissed from this class action.
	See ECF
No. 290 at 2. 	That motion is GRANTED, and the Court will now undertake the
waiver analysis.3
Brookline Bancorp, Inc., 789 F. Supp. 2d 242, 243 (D. Mass. 2011) (quoting
Campos
v. P.R. Sun Oil Co., Inc., 536 F.2d 970, 972 n.6 (1st Cir. 1976)). 	Because the
Arbitration Orders were interlocutory in nature, the Court acted within its discretion
to “reconsider” those orders.
See Braintree Lab’ys, Inc. v. Citigroup Global Mkts. Inc.,
622 F.3d 36, 43 (1st Cir. 2010).
2 All ECF Nos. in this order correspond with the lead case number, No. 16-cv-
046-JJM-PAS.
3 This is not the first time the Court has engaged in a waiver analysis in this
case. 	As part of the Court’s 2021 class certification order, the Court also analyzed
whether Caremark, one of the pharmacy benefit managers (“PBMs”) involved in this
case, had waived its right to arbitration through its litigation conduct.
	See ECF
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II. 	ANALYSIS
A. 	Whether CVS Waived Its Ability to Compel Arbitration
The waiver analysis begins by asking “whether a valid arbitration clause
exists, whether the movant is entitled to invoke the clause, whether the non-moving
party is bound by it, and whether the clause covers the claims asserted.”
FPE Found.
v. Cohen, 801 F.3d 25, 29 (1st Cir. 2015) (citing
Soto-Fonalledas v. Ritz-Carlton San
Juan Hotel Spa & Casino, 640 F.3d 471, 474 (1st Cir. 2011)).
The Court has determined, not only that valid arbitration clauses exist here,
but also that CVS is entitled to arbitrate several of those claims.
	See ECF No. 289
at 29. Specifically, CVS may arbitrate the claims of TPPs with delegated arbitration
agreements governed by Arizona, California, Delaware, the District of Columbia,
Florida, Georgia, Hawaii, Iowa, Kentucky, Louisiana, Maryland, Massachusetts,
Michigan, 	Minnesota, 	Missouri, 	Nevada, 	New 	York, 	North 	Carolina, 	Ohio,
Pennsylvania, 	Rhode 	Island, 	South 	Dakota, 	Tennessee, 	Texas, 	Utah, 	Virginia,
Washington, and West Virginia law. ECF No. 289 at 29. This is so because CVS may
enforce the agreements under a theory of equitable estoppel.
Id. at 19-26.
Not so fast, say the Plaintiffs. 	They argue that the Court should determine
whether CVS has nevertheless waived its ability to compel arbitration of those claims
through its litigation conduct. ECF No. 290 at 2. As relevant here, the party arguing
No. 14-19. 	As the Court concluded, Caremark had not waived its right to arbitrate,
and, in any event, the Court later dismissed Caremark from this lawsuit entirely.
See ECF No. 238 at 4-5.
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waiver by conduct bears the burden of proving waiver.
	See Toddle Inn Franchising,
LLC v. KPJ Assocs., LLC, 8 F.4th 56, 64 (1st Cir. 2021).
Generally, there is a “strong presumption
against inferring waiver—so strong
that any ‘reasonable doubts as to whether a party has waived the right to arbitrate
should be resolved in favor of arbitration.’”
	Id. (emphasis in original) (quoting
In re
Tyco Int’l Ltd. Sec. Litig., 422 F.3d 41, 44 (1st Cir. 2005));
see also FPE Found., 801
F.3d at 29 (citing
Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1,
25-26 (1983)). “Such an approach is consistent with a liberal federal policy favoring
arbitration.”
	FPE Found., 801 F.3d at 29 (citing
AT&T Mobility LLC v. Concepcion,
563 U.S. 333, 339 (2011)).
To determine whether a party has waived its ability to compel arbitration
through its litigation conduct, courts consider the following non-exclusive factors:
(1) whether the parties participated in a lawsuit or took other action
inconsistent with arbitration; (2) whether the “litigation machinery has
been substantially invoked and the parties [are] well into preparation of
a lawsuit by the time an intention to arbitrate [is] communicated”; (3)
“whether there has been a long delay” and trial is near at hand; (4)
whether the party seeking to compel arbitration has “invoked the
jurisdiction of the court by filing a counterclaim”; [and] (5) whether
discovery not available in arbitration has occurred[.]
Id. (quoting
Restoration Pres. Masonry v. Grove Eur., Ltd., 325 F.3d 54, 60-61 (1st
Cir. 2003)). 	“[N]o one factor dominates the analytical framework for determining
whether a party has implicitly waived its right to arbitrate.”
	In re Citigroup, Inc.,
376 F.3d 23, 26 (1st Cir. 2004). 	The key consideration is whether the party
“knowingly relinquish[ed] the right to arbitrate by acting inconsistently with that
right.”
Morgan v. Sundance, Inc., 596 U.S. 411, 419 (2022).
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Here, Plaintiffs argue that CVS has waived its right to arbitrate because CVS
has been litigating this case in federal court for several years, which Plaintiffs claim
is shown by the numerous motions CVS has filed here.4 	ECF No. 273 at 19, 20.
Plaintiffs assert that “CVS did not attempt to arbitrate until late 2023,” and they
claim that CVS has therefore engaged in a “long delay” such that waiver is warranted.
Id. at 20, 21.
To be sure, CVS did not move to exclude from the class the claims of Plaintiffs
whose contracts contain arbitration agreements until November 10, 2023.
	See ECF
No. 213-1. However, to claim that CVS did not attempt to arbitrate until then ignores
the circumstances leading up to the filing of CVS’s motion.
Dating back to 2019, CVS has consistently expressed its desire to arbitrate the
claims involved in this case. 	In its opposition to class certification,5 CVS stated as
follows: “If any proposed class is certified, Defendants will file motions seeking to
arbitrate the claims of class members with arbitration agreements.” ECF No. 130-1
at 53. 	Back then, CVS observed that whether it could compel arbitration “would
4 Plaintiffs argue that CVS has “pulled just about every litigation lever
possible,” including:
moving to dismiss; moving to certify a question to the Indiana Supreme
Court; answering the complaint; opposing leave to amend the complaint
(with 	a 	sur-reply); 	opposing 	class 	certification 	(with 	a 	sur-reply);
appealing 	the 	class 	certification 	decision; 	filing 	a 	confidential
arbitration award from an unrelated case on the docket to influence the
judge; and opposed the form of notice to the class.
ECF No. 273 at 20-21 (citing ECF Nos. 13, 24, 38, 60, 63, 128, 156, 184, 187, 197).
5 Both CVS and Caremark filed this opposition to class certification.
See ECF
No. 130-1. However, as previously stated, the Court later dismissed Caremark from
this lawsuit.
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require an individualized analysis of thousands of contracts to determine which class
members agreed to arbitrate and which of the arbitration agreements covers the
claims in this case.”
Id. at 54. Rather prophetically, CVS predicted that “Defendants’
arbitration rights also will implicate complex questions of equitable estoppel,” and
that “[w]hether equitable estoppel applies will present an individual question of state
law that must be answered for each class member based on varying factors, including
the language of the class member’s particular arbitration agreement.”
Id.
The Court also contemplated arbitration once it certified this class in 2021.
The certification order provides in relevant part that, because some class members
may be subject to mandatory arbitration, “Defendants may pursue … motions to
compel arbitration and/or dismiss following class certification, and the Court will
employ the procedural tools at its disposable to exclude those TPPs from the class or
place them in a subclass.” ECF No. 179 at 58-59.
Following 	certification, 	the 	parties 	engaged 	in 	a 	months-long 	discovery
process, which, as relevant here, produced several thousands of contracts containing
arbitration agreements. 	In a joint status report filed with the Court on October 20,
2023, CVS again expressed its intent to pursue arbitration: “CVS [intends] … to
dismiss the claims of certain absent class members whose contracts with Caremark
contain alternative dispute resolution provisions.” ECF No. 209 at 9. CVS noted that
“[t]he timing and substance of these motions is appropriate because … any such
motion could not have been filed and ruled upon prior to Caremark’s production of
the contracts containing the operative alternative dispute resolution agreements,”
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and that “[n]ow that Caremark has produced its contracts, these arbitration motions
will be properly before the Court.”6
Id.
At the time, Plaintiffs did not argue that CVS had waived its right to compel
arbitration but that “CVS could not compel arbitration as a non-signatory to the
contract.”7
	Id. 	Similarly, when CVS filed its arbitration motion a month later,
Plaintiffs did not raise the waiver issue in their response in opposition. ECF No. 217.
Ultimately, CVS has the better of the argument. 	Though this case has now
been around for over 10 years,8 CVS has consistently taken the position that it
intends to pursue its arbitration rights.
See Morgan, 596 U.S. at 419 (considering, as
a key point in the waiver analysis, whether the party “knowingly relinquish[ed] the
right to arbitrate by acting inconsistently with that right”);
see also Jubilant Generics
Ltd. v. Dechra Veterinary Prods., LLC, No. 23-cv-00237-JDL, 2024 WL 1329714, at
*4 (D. Me. Mar. 28, 2024) (declining to find waiver where a party has “consistently
6 In a joint status report filed with the Court on January 31, 2024, CVS also
noted its intention “to file similar arbitration-related motions after … MedImpact
Healthcare 	Systems, 	Inc. 	… 	produce[s] 	[its] 	responsive 	contracts 	identifying
additional class members and revealing which of them agreed to arbitrate.” 	ECF
No. 225 at 4-5. Again, Plaintiffs did not raise the waiver issue.
Id.
CVS followed through on its promise and filed a Motion to Dismiss the claims
of certain MedImpact-related absent class members.
See ECF No. 253. Plaintiffs did
not raise the waiver issue in its response in opposition to that motion either.
	See
ECF No. 256.
7 As this Court has determined, under the equitable estoppel laws of certain
states, CVS is entitled to compel arbitration as a nonsignatory.
	See ECF No. 238
at 24; ECF No. 289 at 29.
8 In fact, Plaintiffs filed an amended complaint in 2018.
	See ECF No. 81. 	If
the Court considers the start of this lawsuit as 2018 instead of 2016, then there is
only a year difference from when CVS notified Plaintiffs of its intent to pursue
arbitration.
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taken the position” of arbitrability). 	Unlike in other cases where courts have found
waiver, it cannot fairly be said that CVS has “turned a blind eye” to the possibility of
arbitration.
See, e.g.,
Joca-Roca Real Estate, LLC v. Brennan, 772 F.3d 945, 949 (1st
Cir. 2014).
Additionally, to the extent Plaintiffs argue that there has been a “long delay”
or that CVS has “taken advantage of judicial discovery procedures,”
see ECF No. 273
at 19-22, the Court notes that both of Plaintiffs’ complaints stem from the very nature
of CVS’s nonsignatory status. 	As a nonparty to the contracts at issue here, it took
quite a while for CVS to determine which of Plaintiffs’ claims were subject to
arbitration agreements and which were not. 	The discovery process was therefore
essential in producing the relevant contracts such that CVS could follow through on
its desire to pursue arbitration.
See In re Intuniv Antitrust Litig., No. 1:16-cv-12653-
ADB, 2021 WL 517386, at *9 (D. Mass. Feb. 11, 2021) (finding that, for a nonsignatory
attempting to pursue arbitration, “the relevant time period [for the waiver analysis]
begins when [the nonsignatory] learned of [the] arbitration agreements”). Once these
contracts had been produced for CVS, the company then promptly filed its arbitration
motions.
Id. (“Upon learning of the agreements, [the nonsignatory] promptly filed its
motion to compel arbitration.”).
Plaintiffs also claim that the Court must consider a sixth factor in its waiver
analysis—a “prejudice” factor. ECF No. 273 at 22. Specifically, Plaintiffs argue that
CVS’s “inconsistent positions on arbitration have caused considerable prejudice”
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because the parties have spent significant resources, time, and effort going back and
forth between this Court and arbitration.
Id.
Plaintiffs’ “prejudice” claim is similarly unavailing. 	Courts within the First
Circuit used to consider in their waiver analyses “whether the party asserting waiver
has suffered prejudice.”
	FPE Found., 801 F.3d at 29 (citing
Restoration Pres.
Masonry, 325 F.3d at 60-61). 	However, in 2022, the Supreme Court rejected
consideration 	of 	prejudice 	in 	the 	waiver 	context.
	Morgan, 	596 	U.S. 	at 	419.
Accordingly, like other courts within the circuit, prejudice will not factor into this
Court’s analysis of the waiver issue.
See, e.g.,
Buruk v. Experian Info. Sols., Inc., 732
F. Supp. 3d 165, 171 n.3 (D. Mass. 2024);
McCabe v. Ford Motor Co., 774 F. Supp. 3d
332, 342 n.3 (D. Mass. 2025).
In sum, Plaintiffs have failed to persuade the Court that CVS has waived its
right to pursue arbitration. 	If there remain any doubts, the Court resolves them in
favor of arbitration, as the First Circuit has instructed.
FPE Found., 801 F.3d at 29.
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III. 	CONCLUSION
In response to Plaintiffs’ Motion to Clarify the Court’s February 3rd Order,
see
ECF No. 290, for the reasons stated, the Court finds that CVS has not waived its
ability to arbitrate with absent class members.
IT IS SO ORDERED.
s/John J McConnell, Jr.
_________________________________
John J. McConnell, Jr.
Chief United States District Judge
February 12, 2026
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