Gluesing v. Prudentrx LLC et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
SHEILA GLUESING,
individually and
on behalf of all others similarly
situated,
Plaintiff,
v.
PRUDENTRX LLC,
a Florida Limited
Liability Company; and
CAREMARK RX LLC,
a Delaware
Limited Liability Company,
Defendants.
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No. 24-cv-549-JJM-AEM
MEMORANDUM AND ORDER
JOHN J. MCCONNELL, JR., United States District Court Chief Judge.
Sheila Gluesing has filed a class action lawsuit against PrudentRx LLC
(“PrudentRx”) and Caremark Rx LLC (“Caremark”) (collectively, “Defendants”) under
the 	Employee 	Retirement 	Income 	Security 	Act 	(“ERISA”) 	and 	the 	Racketeer
Influenced and Corrupt Organizations (“RICO”) Act. 	ECF No. 1. 	She alleges that
Defendants, along with CVS Specialty Pharmacy (“CVS Specialty”), engaged in a
scheme to take copay assistance funds designed by drug manufacturers to help
patients afford high-cost specialty prescription drugs and divert those funds to
insurers rather than to the patients themselves, which resulted in the patients
having to bear additional healthcare costs.
Id. Defendants have now filed a Renewed
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Motion 	to 	Compel 	Arbitration, 1 	seeking 	to 	send 	Ms. 	Gluesing’s 	claims 	into
arbitration. 	ECF No. 63.2 	Ms. Gluesing has filed a Response In Opposition to
Defendants’ Motion. ECF No. 66.
For the reasons stated below, the Court GRANTS Defendants’ Motion to
Compel Arbitration and, as Defendants have requested, this case will be STAYED
pending arbitration.
I. 	BACKGROUND
In considering Defendants’ Renewed Motion to Compel Arbitration, the Court
must “draw the relevant facts from the operative complaint and the documents
submitted to the district court in support of the motion to compel arbitration.”
Cullinane v. Uber Techs., Inc., 893 F.3d 53, 55 (1st Cir. 2018) (citing
Gove v. Career
Sys. Dev. Corp., 689 F.3d 1, 2 (1st Cir. 2012)).
Ms. Gluesing is a resident of Iowa who receives health insurance through
Wellmark Health Plan of Iowa (“Wellmark”). 	ECF No. 1 at 6. 	Wellmark, in turn,
contracts with Caremark for pharmacy benefit manager (“PBM”) services.
	Id. As a
PBM, Caremark negotiates with pharmacies to provide insurers (including both
insurance companies and employers that sponsor health plans for their employees)
with discounted prices (also known as “rebates”) on prescription drugs.
	Id. at 2, 18.
1 Defendants previously moved to compel arbitration on March 6, 2025.
	See
ECF No. 21. 	However, the Court denied that motion without prejudice, permitted
the parties to engage in “limited discovery on the issue of economic duress,” and
advised Defendants that they could later file a renewed motion to compel arbitration.
See ECF No. 38.
2 All citations to the parties’ briefs and exhibits refer to each of the unsealed
docket filings on ECF, as opposed to the sealed versions of those filings.
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In addition, Caremark administers prescription benefits for those members enrolled
in the insurers’ health plans.
Id. at 9, 18.
Wellmark also participates in the PrudentRx Copay Program (the “Program”),
which was designed by PrudentRx. ECF No. 1 at 4, 7. For those patients enrolled in
the Program, PrudentRx offers that “they will enjoy a $0 copay for their qualifying
specialty medications.”
	Id. at 28. 	PrudentRx operates the Program with Caremark
and CVS Specialty.
	Id. at 13. 	PrudentRx also works with Caremark to market the
Program to health plan sponsors and, once a sponsor agrees to join, the sponsor’s
“eligible members” are enrolled in the Program.
Id. at 13, 28.
In March 2022, Ms. Gluesing was prescribed Dupixent, which is a medication
used to treat atopic dermatitis and psoriasis. ECF No. 63 at 5 (citing ECF No. 63-6
[Ex. E, Mittal Decl.] at 3–4). Dupixent qualifies as a “specialty drug,” which generally
refers to a high-cost prescription medication used to treat complex and serious health
conditions, such as cancer, multiple sclerosis, and autoimmune disorders. ECF No. 1
at 1–2.
As part of her health insurance plan with Wellmark, Ms. Gluesing “must
purchase specialty drugs through the specialty pharmacy program” for those drugs
to be covered by her insurance, and the “specialty pharmacy program is limited to
CVS Specialty.” ECF No. 63 at 5 (citing ECF No. 63-5 [Ex. D, Mittal Decl.] at 53). In
addition, Ms. Gluesing is enrolled in the PrudentRx Copay Program through her
Wellmark plan. ECF No. 1 at 7.
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On April 1, 2022, as part of her preparations to fill her Dupixent prescription
through CVS Specialty, Ms. Gluesing alleges that “a CVS Specialty online account
was created using [her] email address.” 	ECF No. 66 at 3. 	Ms. Gluesing states that
she “does not recall creating the account,” and she “believes her healthcare provider’s
office may have created the account for her[.]”
Id. at 4.
As part of the CVS Specialty online account registration process, there is a
webpage that asks users to click a box stating: “I agree to the CVS Specialty Terms
and Conditions.” ECF No. 63 at 6 (citing ECF No. 63-10 [Howell Decl.] at 2; ECF No.
63-13 [Ex. C, Howell Decl.] at 2). The words “CVS Specialty Terms and Conditions”
contained a hyperlink to the full CVS Specialty Terms of Use (“CVS Specialty Terms”
or “Terms”) that were in effect in 2022.
	Id. 	The Terms then in effect contained a
“Dispute Resolution” provision that states, in relevant part:
EXCEPT FOR DISPUTES THAT QUALIFY FOR SMALL CLAIMS
COURT, ALL DISPUTES ARISING OUT OF OR RELATED TO THIS
AGREEMENT 	OR 	ANY 	ASPECT 	OF 	THE 	RELATIONSHIP
BETWEEN YOU, ON THE ONE HAND, AND CVS/SPECIALTY OR
ITS SUPPLIERS OR VENDORS, ON THE OTHER HAND, WHETHER
BASED 	IN 	CONTRACT, 	TORT, 	STATUTE, 	FRAUD,
MISREPRESENTATION, OR ANY OTHER LEGAL THEORY, WILL
BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION
BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY
A JUDGE OR JURY AND YOU AGREE THAT CVS/SPECIALTY AND
YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY. YOU
AGREE THAT ANY ARBITRATION UNDER THIS AGREEMENT
WILL 	TAKE 	PLACE 	ON 	AN 	INDIVIDUAL 	BASIS; 	CLASS
ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND
YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE
IN A CLASS ACTION. 	The arbitration will be administered by the
American 	Arbitration 	Association 	(“AAA”) 	under 	its 	Consumer
Arbitration Rules . . . as amended by this Agreement.
Id. (quoting ECF No. 63-14 [Ex. D, Howell Decl.] at 16).
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Ms. Gluesing later discovered that certain drug manufacturers (such as the
manufacturers of Dupixent) offer copay assistance programs that are designed to help
patients afford expensive specialty drugs. ECF No. 1 at 7, 21. However, she alleges
that the PrudentRx Copay Program diverts copay assistance program funds to
insurers rather than to the patients themselves, which results in the patients having
to bear additional healthcare costs.
Id. at 1.
On December 26, 2024, Ms. Gluesing brought ERISA and RICO claims on
behalf of herself and on behalf of others similarly situated. 	ECF No. 1 at 1. 	She
alleges that the PrudentRx Copay Program violates the Affordable Care Act (“ACA”)
because it “deprives patients of the benefits of patient copay assistance funding and
increases 	patients’ 	healthcare 	costs.”
	Id. 	Specifically, 	Ms. 	Gluesing 	accuses
Defendants and CVS Specialty of running a “fraudulent enterprise . . . to divert
hundreds of millions, if not billions, of dollars in funding meant to help patients, to
insurance plans and enrich themselves instead.”
Id. Defendants have responded by
filing a Renewed Motion to Compel Arbitration. ECF No. 63.
II. 	STANDARD OF REVIEW
The Federal Arbitration Act (“FAA”) governs the Court’s review of Defendants’
Motion. 9 U.S.C. §§ 1–16. “[T]he FAA requires courts to treat arbitration as ‘a matter
of contract’ and enforce agreements to arbitrate ‘according to their terms.’”
Air-Con,
Inc. v. Daikin Applied Latin Am., LLC, 21 F.4th 168, 174 (1st Cir. 2021) (quoting
Henry Schein, Inc. v. Archer & White Sales, Inc., 586 U.S. 63, 67 (2019)). 	“Parties
are not obliged to arbitrate, however, ‘when they have not agreed to do so.’”
	Aldea-
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Tirado v. PricewaterhouseCoopers, LLP, 101 F.4th 99, 103 (1st Cir. 2024) (quoting
Rivera-Colón v. AT&T Mobility P.R., Inc., 913 F.3d 200, 207 (1st Cir. 2019)).
Accordingly, 	the 	party 	“seeking 	to 	compel 	arbitration 	under 	the 	FAA 	must
demonstrate ‘that a valid agreement to arbitrate exists, that the movant is entitled
to invoke the arbitration clause, that the other party is bound by that clause, and that
the claim asserted comes within the clause’s scope.’”
	Dialysis Access Ctr., LLC v.
RMS Lifeline, Inc., 638 F.3d 367, 375 (1st Cir. 2011) (quoting
InterGen N.V. v. Grina,
344 F.3d 134, 142 (1st Cir. 2003)).
A motion to compel arbitration should be evaluated “against the summary
judgment standard to determine whether a genuine dispute of fact exists regarding
the parties’ agreement to arbitrate.”
	Air-Con, 21 F.4th at 176. 	In conducting this
review, the Court “construe[s] the record in the light most favorable to the non-
moving party and draw[s] all reasonable inferences in its favor.”
	Id. at 175. 	“If the
non-moving party puts forward materials that create a genuine issue of fact about a
dispute’s arbitrability, the district court ‘shall proceed summarily’ to trial to resolve
that question.”
Id. (quoting 9 U.S.C. § 4). That said, “[t]he non-moving party ‘cannot
avoid compelled arbitration by generally denying the facts upon which the right to
arbitration 	rests; 	the 	party 	must 	identify 	specific 	evidence 	in 	the 	record
demonstrating a material factual dispute for trial.’”
	Id. at 175 n.8 (quoting
Soto v.
State Indus. Prods., Inc., 642 F.3d 67, 72 n.2 (1st Cir. 2011)).
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III. 	DISCUSSION
In essence, Ms. Gluesing argues that Defendants’ Renewed Motion to Compel
Arbitration should be denied because: (1) no agreement to arbitrate was ever formed;
(2) even if such an agreement was formed, it is invalid because she entered into it
through economic duress; and (3) even if the agreement is valid, Defendants are not
entitled to enforce it as nonsignatories (i.e., nonparties) to the agreement.
	See ECF
No. 66 at 10–30. The Court addresses each argument in turn.
A. 	Through the CVS Specialty Terms, Ms. Gluesing Formed An Agreement
to Arbitrate
1. 	New York Law Applies to This Analysis
In analyzing whether an agreement to arbitrate exists, the first step is to
determine which law governs. 	“[F]or the most part, general principles of state
contract law control the determination of whether an agreement to arbitrate exists.”
Nat’l Fed’n of the Blind v. The Container Store, Inc., 904 F.3d 70, 80 (1st Cir. 2018)
(citing
Perry v. Thomas, 482 U.S. 483, 492 n.9 (1987));
see also First Options of Chi.,
Inc. v. Kaplan, 514 U.S. 938, 944 (1995).
With the apparent agreement of the parties, the Court will apply New York
law.
See ECF No. 63 at 11 (“The CVS Specialty Terms of Use select New York law.”);
ECF No. 66 at 11 (recognizing that New York state law governs contract formation).
Like most other states, “[t]o form a valid contract under New York law, there must
be an offer, acceptance, consideration, mutual assent and intent to be bound.”
Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 427 (2d Cir. 2004) (quoting
Louros v.
Cyr, 175 F. Supp. 2d 497, 511 n.5 (S.D.N.Y. 2001)).
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2. 	The Type of Agreement Here Is a “Clickwrap” Agreement
The Court next discusses the type of contract that is at issue here. 	This case
involves an online contract, which applies the same principles of contract law as
regular contracts.
See, e.g.,
Register.com, 356 F.3d at 404 (“While new commerce on
the Internet has exposed courts to many new situations, it has not fundamentally
changed the principles of contract.”).
“Contracts formed on the Internet come primarily in two flavors: ‘clickwrap’
(or ‘click-through’) agreements . . . and ‘browsewrap’ agreements.”
Nguyen v. Barnes
& Noble Inc., 763 F.3d 1171, 1175–76 (9th Cir. 2014). 3 	A clickwrap agreement
“presents users with specified contractual terms on a pop-up screen and users must
check a box explicitly stating ‘I agree’ in order to proceed.”
	Berman v. Freedom Fin.
Network, LLC, 30 F.4th 849, 856 (9th Cir. 2022) (citing
Nguyen, 763 F.3d at 1175–
76). 4 	By contrast, under a browsewrap agreement, “a website offers terms that are
disclosed only through a hyperlink and the user supposedly manifests assent to those
terms simply by continuing to use the website.”
Id. (citing
Nguyen, 763 F.3d at 1176).
Whereas “courts have routinely found clickwrap agreements enforceable,” they “are
more reluctant to enforce browsewrap agreements because consumers are frequently
3 Though
Nguyen was decided by the Ninth Circuit, the court in that case
applied New York law. 	763 F.3d at 1175 (“[I]n evaluating the validity of Barnes &
Noble’s arbitration agreement, we apply New York law, to the extent possible.”).
4 Though the Ninth Circuit decided this case, like
Nguyen,
Berman involved
the application of New York law. 	30 F.4th at 855 (applying New York law, which
“dictate[s] the same outcome” as California law “[i]n determining whether the parties
have agreed to arbitrate a particular dispute”).
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left unaware that contractual terms were even offered, much less that continued use
of the website will be deemed to manifest acceptance of those terms.”
Id.
While Ms. Gluesing contends that the agreement at issue here “constitute[s]
[an] unenforceable browsewrap,” ECF No. 66 at 13 n.8, that is plainly not so. As part
of CVS Specialty’s online registration process, users are prompted to click a box
stating: “I agree to the CVS Specialty Terms and Conditions.” ECF No. 63 at 6 (citing
ECF No. 63-13 [Ex. C, Howell Decl.] at 2). 	The words “CVS Specialty Terms and
Conditions” contain a hyperlink to the full CVS Specialty Terms then in effect.
	Id.
The website looks something like this:
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ECF No. 63-13 [Ex. C, Howell Decl.] at 2. 	The crucial element here is the “I agree”
box. 	This signifies that the contract at issue here is a type of clickwrap agreement.
See Berman, 30 F.4th at 856.
3. 	Ms. Gluesing Entered Into an Arbitration Agreement
The next question is whether Ms. Gluesing entered into an arbitration
agreement. 	Ms. Gluesing argues that she did not enter into such an agreement
because “[t]here was no meeting of the minds,” and “thus no mutual assent.” 	ECF
No. 66 at 14.
Under 	New 	York 	law, 	“[t]he 	manifestation 	of 	mutual 	assent 	must 	be
sufficiently definite to assure that the parties are truly in agreement with respect to
all material terms.”
	Starke v. SquareTrade, Inc., 913 F.3d 279, 289 (2d Cir. 2019)
(citing
Joseph Martin, Jr., Delicatessen, Inc. v. Schumacher, 417 N.E.2d 541, 543
(N.Y. 1981);
Register.com, 356 F.3d at 427). 	“Generally, courts look to the basic
elements of the offer and the acceptance to determine whether there was an objective
meeting of the minds sufficient to give rise to a binding and enforceable contract.”
Id.
(citing
Express Indus. & Terminal Corp. v. N.Y. State Dep’t of Transp., 715 N.E.2d
1050, 1053 (N.Y. 1999)). 	“Where an offeree does not have
actual notice of certain
contract terms, [s]he is nevertheless bound by such terms if [s]he is on
inquiry notice
of them and assents to them through conduct that a reasonable person would
understand to constitute assent.”
	Id. (emphasis in original) (citing
Schnabel v.
Trilegiant Corp., 697 F.3d 110, 120 (2d Cir. 2012)).
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Here, as mentioned, CVS Specialty’s Terms are available via hyperlinked “CVS
Specialty Terms and Conditions” language found on the company’s online registration
page. 	ECF No. 63 at 4. 	At their outset, the CVS Specialty Terms contain language
alerting users—in bold and capital letters—that “THIS AGREEMENT CONTAINS
A MANDATORY ARBITRATION OF DISPUTES PROVISION[.]” 	ECF No. 75 at 3
(quoting ECF No. 63-14 [Ex. D, Howell Decl.] at 3).
It is permissible for arbitration agreements to be contained within hyperlinked
terms and conditions, so long as users are put on reasonable notice of the hyperlinked
terms.
See Berman, 30 F.4th at 857. To be sure, neither party here seems to suggest
that Ms. Gluesing had actual notice of the arbitration agreement.
	See ECF No. 63
at 12; ECF No. 66 at 18. Instead, Defendants’ theory of the case is that Ms. Gluesing
was on inquiry notice of the agreement. 	ECF No. 63 at 12. 	Thus, “on a motion to
compel arbitration,” courts will find an arbitration agreement to exist under an
inquiry 	notice 	theory 	“where [(1)] 	the 	notice 	of 	the 	arbitration 	provision 	was
reasonably conspicuous and [(2)] manifestation of assent [is] unambiguous as a
matter of law.”
Meyer v. Uber Techs., Inc., 868 F.3d 66, 76 (2d Cir. 2017).5
a. 	Reasonably Conspicuous Notice
As to the first element of inquiry notice, “[a] reasonably prudent internet or
smartphone user is on inquiry notice of contractual terms where the terms are
5
Meyer was a case involving California state law, but the Second Circuit
“note[d] 	that 	New 	York 	and 	California 	apply 	‘substantially 	similar 	rules 	for
determining whether the parties have mutually assented to a contract term.’” 	868
F.3d at 74 (quoting
Schnabel, 697 F.3d at 119).
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presented in a clear and conspicuous way.”
Edmundson v. Klarna, Inc., 85 F.4th 695,
704 (2d Cir. 2023).6 	To be conspicuous, notice “must be displayed in a font size and
format such that the court can fairly assume that a reasonably prudent Internet user
would have seen it.”
Berman, 30 F.4th at 856.
To be clear, this part of the analysis does not ask whether Ms. Gluesing
herself
was on inquiry notice of the arbitration agreement. 	Rather, it asks whether the
“reasonably prudent Internet user” would have been. 7
Berman, 30 F.4th at 856. This
determination requires a “look to the design and content of the relevant interface to
determine if the contract terms were presented to the offeree in [a] way that would
put her on inquiry notice of such terms.”
	Starke, 913 F.3d at 289 (internal citations
omitted). There are numerous design characteristics that New York courts look to in
making this determination:
• 	Whether the relevant screen is “uncluttered” with only a few items,
such as fields for registration or payment information and the notice
and 	hyperlinked 	terms, 	or 	is 	“cluttered” 	with 	extraneous
information, unrelated hyperlinks, text displayed in various font
sizes 	and 	colors, 	or 	multiple 	buttons 	and 	promotional
advertisements;
6 Though the district court in
Edmundson applied Connecticut law on the
question of contract formation,
see Edmundson v. Klarna, Inc., 642 F. Supp. 3d 256,
265–66 (D. Conn. 2022), the Second Circuit on appeal observed that “traditional
contract formation law does not vary meaningfully from state to state” and, in fact,
Connecticut, 	California, 	and 	New 	York 	“apply 	substantially 	similar 	rules 	for
determining whether the parties have mutually assented to a contract term.”
Edmundson, 85 F.4th at 702–03 (citing
Schnabel, 697 F.3d at 119;
Meyer, 868 F.3d
at 74). 7 The “reasonably prudent user,” as the Second Circuit has come to define the
term, “is not a complete stranger to computers or smartphones, having some
familiarity with how to navigate to a website or download an app.”
	Edmundson, 85
F.4th at 704 (internal citations omitted).
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• 	Whether notice and hyperlinked terms are conspicuous in light of the
whole 	web 	page, 	particularly 	given 	the 	capitalization, 	bolding,
underlining, sizing, and font choice;
• 	Whether the entire screen, including the notice and hyperlinked
terms, is visible at once without need for a “user to scroll beyond what
is immediately visible;” and
• 	Whether the notice and hyperlinked terms are temporally and
“spatially coupled with the mechanism for manifesting assent.”
Hu v. Whaleco, Inc., 779 F. Supp. 3d 265, 285–86 (E.D.N.Y. 2024) (citing
Edmundson,
85 F.4th at 705–07;
Starke, 913 F.3d at 290–92;
Meyer, 868 F.3d at 78–82;
Nicosia v.
Amazon.com, Inc., 834 F.3d 220, 233–38 (2d Cir. 2016)).
Starting with the first criterion, the registration page appears “uncluttered”
because it presents users with a single field to enter a password (as well as another
field confirming the password), a box to click in which users indicate that they agree
to the CVS Specialty Terms and Conditions, a hyperlink to those terms and
conditions, and a button to press to “Complete Registration.”
	Compare Edmundson,
85 F.4th at 705, 712 (finding the interface was “uncluttered” because “the only link
provided [was] to [the defendant]’s terms, and the user [was] presented with only one
button to click — that is, selecting ‘Confirm and continue’”),
with Nicosia, 834 F.3d
at 237–38, 241 (holding that “reasonable minds could disagree on the reasonableness
of notice” when the interface contained “between fifteen and twenty-five links,”
“various text . . . in at least four font sizes and six colors (blue, yellow, green, red,
orange, and black), alongside multiple buttons and promotional advertisements,” and
“the customers’ personal address, credit card information, shipping options, and
purchase summary”).
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Second, the hyperlinked CVS Specialty Terms are sufficiently “conspicuous.”
See Hu, 779 F. Supp. 3d at 286. 	“[W]hile it is permissible to disclose terms and
conditions through a hyperlink, the fact that a hyperlink is present must be readily
apparent.”
Berman, 30 F.4th at 857. A website designer must do more than “[s]imply
underscoring words or phrases . . . to alert a reasonably prudent user that a clickable
link exists.”
	Id. The hyperlink at issue here is underlined, in all caps, accompanied
by an asterisk, and in a black font that is the same size as—but clearly contrasts
against—the other, lighter gray and bolded fonts appearing on the registration page.
See, e.g.,
Hu, 779 F. Supp. 3d at 290 (“The hyperlink to the Terms is bolded, in a dark
gray font, and in a font size similar to surrounding text, and there are few conflicting
colors on the Registration Screen, as the color scheme is essentially black, white, and
gray, with a single orange bar indicating where a user should click to continue.”);
Peni v. Daily Harvest, Inc., No. 22-cv-5443, 2022 WL 16849451, at *4 (S.D.N.Y. Nov.
10, 2022) (finding that the gray text warning — “[b]y clicking above, you agree to our
Terms of Use and Terms of Sale, and consent to our Privacy Policy” — was reasonably
conspicuous because, among other things, the “dark” text was “set off from the light
background and [was] written in a font roughly the same size as that of the primary
text on the page”);
Feld v. Postmates, Inc., 442 F. Supp. 3d 825, 831 (S.D.N.Y.
2020) (“That the notice and hyperlinks are in a smaller font size does not render the
disclaimer inconspicuous; the grey and black color contrast against the white
background and are clear to the reasonably prudent user creating an account. 	The
hyperlinks to the [Terms of Service] and Privacy Policy are in a darker, bolder font
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than the rest of the text, signifying to a reasonably prudent use that these would be
clickable terms.”).
Third, the website’s hyperlink is “visible at once,” and there is no need for a
“user to scroll beyond what is immediately visible.”
	See Hu, 779 F. Supp. 3d at 286;
cf. Nguyen, 763 F.3d at 1177 (“Where the link to a website’s terms of use is buried at
the bottom of the page or tucked away in obscure corners of the website where users
are unlikely to see it, courts have refused to enforce the [ ] agreement.”);
Specht v.
Netscape Commc’ns Corp., 306 F.3d 17, 23, 31–32 (2d Cir. 2002) (holding that a
reasonably prudent user would not have known of terms that were visible only if the
user “happen[ed] to scroll down” to the bottom of the webpage).
Fourth and finally, the hyperlinked terms “are temporally and ‘spatially
coupled with the mechanism for manifesting assent.’”
	Hu, 779 F. Supp. 3d at 286.
Here, the “CVS Specialty Terms and Conditions” hyperlink is placed directly next to
a box that users are prompted to click to indicate agreement with such Terms. This
hyperlink also appears above a red button labeled “Complete Registration,” which
signifies 	that 	CVS 	Specialty’s 	Terms 	and 	Conditions 	are 	“coupled 	with 	the
mechanism for manifesting assent — i.e., the register button.”
Meyer, 868 F.3d at 78;
see also Peni, 2022 WL 16849451, at *4 (“The button is also temporally coupled with
the terms because the terms are presented as a user is signing up for a[n] . . .
account.”);
Feld, 442 F. Supp. 3d at 831 (“The notice and the sign-up options are also
‘temporally coupled,’ i.e., the notice appears at the time of account creation, such that
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[a] ‘reasonably prudent . . . user would understand that the terms were connected to
the creation of a user account.’”).
Accordingly, 	because 	CVS 	Specialty’s 	online 	registration 	page 	appears
uncluttered, 	is 	visible 	at 	once, 	and 	contains 	a 	hyperlink 	that 	is 	reasonably
conspicuous and spatially and temporally coupled with the user’s mechanism for
manifesting 	assent, 	the 	Court 	concludes 	that 	this 	page 	provides 	users 	with
“reasonably conspicuous notice” of CVS Specialty’s Terms.
	See Hu, 779 F. Supp. 3d
at 285–86.
b. 	Unambiguously Manifested Assent
The Court next turns to the second element of inquiry notice, which is
unambiguously manifested assent. 	Unlike the first element, this element does
consider 	Ms. 	Gluesing’s 	individual 	circumstances. 	With 	respect 	to 	online
agreements, “courts regularly find unambiguously manifested assent due to two
‘defining features’: ‘the forced confrontation with the terms’ and ‘the forced decision
to accept or reject them by clicking a button.’”
Open Book Theatre Co. v. Brown Paper
Tickets, LLC, 749 F. Supp. 3d 1076, 1084 (S.D. Cal. 2024) (quoting
Wilson v. Playtika,
Ltd., 349 F. Supp. 3d 1028, 1037 (W.D. Wash. 2018));
see also Meyer, 868 F.3d at 75
(“‘Courts around the country have recognized that [an] electronic ‘click’ can suffice to
signify the acceptance of a contract.’” (quoting
Sgouros v. TransUnion Corp., 817 F.3d
1029, 1033–34 (7th Cir. 2016))).
At first glance, this analysis does not appear to require much heavy lifting.
The two defining features of unambiguously manifested assent seem to both be
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present here.
	See Open Book Theatre Co., 749 F. Supp. 3d at 1084. 	As mentioned,
just before users can finish creating their online account, CVS Specialty’s website
prompts them to click a box stating: “I agree to the CVS Specialty Terms and
Conditions.” ECF No. 63 at 6. The words “CVS Specialty Terms and Conditions” also
contain a hyperlink, leading to the full CVS Specialty Terms in effect in 2022.
	Id.
There is no dispute that the box was clicked and that an online account was registered
under Ms. Gluesing’s email address.
	See ECF No. 63 at 6 (“From a technical
perspective, a person cannot create an online account with CVS Specialty Pharmacy
without checking the box agreeing to the CVS Specialty Terms of Use.”); ECF No. 66
at 3 (“On April 1, 2022, a CVS Specialty online account was created using Plaintiff’s
email address.”).
Yet Ms. Gluesing contends that she does not recall creating a CVS Specialty
account, and thus she does not recall clicking “I agree to the CVS Specialty Terms
and Conditions.” 	ECF No. 66 at 4. 	Instead, Ms. Gluesing suggests that “her
healthcare provider’s office may have created the account for her as part of its
preparations for her to fill prescriptions through CVS Specialty.”
Id. In essence, Ms.
Gluesing appears to argue that there is a genuine dispute over whether she
manifested assent to be bound by CVS Specialty’s Terms.
As Defendants correctly point out, however, Ms. Gluesing’s lack of recall is
insufficient to create a genuine dispute of material fact. 	ECF No. 75 at 5–10. 	New
York courts have long recognized, particularly in the arbitration context, that it is
not enough for an individual to claim that they do not remember entering into an
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agreement.
	See, e.g.,
Kutluca v. PQ N.Y. Inc., 266 F. Supp. 3d 691, 701 (S.D.N.Y.
2017) (“[F]ailing memories do not absolve a party from its contractual obligations . . .
or 	create 	a 	triable 	issue 	of 	fact.” 	(internal 	citations 	omitted));
	Whitaker 	v.
Amazon.com Servs. LLC, No. 22-cv-10222 (ALC), 2024 WL 1076521, at *4 (S.D.N.Y.
2024) (same). 	Indeed, Ms. Gluesing’s own statements “that she cannot recall
[entering into] an agreement . . . fails to create a triable issue of fact.”
	Barrows v.
Brinker Rest. Corp., 36 F.4th 45, 51 (2d Cir. 2022) (internal citations omitted).
Ms. Gluesing may of course present other evidence to show that she did not
create her CVS Specialty online account. “In reviewing motions to compel arbitration,
just as for motions for summary judgment, a court must ‘consider all relevant,
admissible evidence submitted by the parties and contained in pleadings depositions,
answers 	to 	interrogatories, 	and 	admissions 	on 	file, 	together 	with 	affidavits.’”
Barrows, 36 F.4th at 50 (quoting
Nicosia, 834 F.3d at 229). Ms. Gluesing purports to
do so by pointing to her own deposition transcript in which she stated that her
provider promised to handle all administrative matters, including “get[ting her] set
up with the specialty pharmacy.” 	ECF No. 66 at 19 (quoting ECF No. 66-2 [Ex. 1,
Gluesing Tr.] at 46:8–47:5). In addition, she references deposition testimony in which
she stated that, while the CVS Specialty online account was created on April 1, 2022,
she did not download the CVS Specialty app onto her phone until April 10, 2022.
Id.
(citing ECF No. 66-2 [Ex. 1, Gluesing Tr.] at 143:10–21). 	Ms. Gluesing also directs
the Court’s attention to a screenshot taken on her phone to indicate that she
downloaded the app on April 10, 2022.
Id. at 4 (citing ECF No. 66-8 [Ex. 7] at 2).
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This also fails to create a material factual dispute. For one thing, the alleged
statements from Ms. Gluesing’s provider constitutes hearsay—that is, her relaying
what her prescriber said—and such a statement is not properly considered on a
motion to compel arbitration, which again follows the summary judgment standard.
See Davila v. Corporacion De P.R. Para La Difusion Publica, 498 F.3d 9, 17 (1st Cir.
2007) (“It is black-letter law that hearsay evidence cannot be considered on summary
judgment.”). Perhaps it would have been a different story if Ms. Gluesing’s provider
had “signed an affidavit or [given] a deposition in which the contents” of the
conversation with Ms. Gluesing were disclosed.
	Id. 	But Ms. Gluesing points to no
such affidavits or depositions in the record.
The phone screenshot does not do her any favors either. Ms. Gluesing submits
that she could not have possibly created the CVS Specialty online account on April 1,
2022 because she did not download the CVS Specialty app to her phone until April 10,
2022. 	But this merely presumes in a conclusory fashion that the
only way to have
created an account was by using the CVS Specialty app.
See Barrows, 36 F.4th at 51
(“A party ‘normally does not show the existence of a genuine issue of fact . . . merely
by making assertions that are based on speculation or are conclusory.’” (quoting
S.
Katzman Produce Inc. v. Yadid, 999 F.3d 867, 877 (2d Cir. 2021)). 	However, as
Defendants point out, it is possible for users to create CVS Specialty online accounts
on their web browsers, and it is not necessary for them to use the CVS Specialty app
to do so.
See ECF No. 63 at 6, 13.
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Defendants have also submitted ample evidence to support the conclusion that
Ms. Gluesing created the online account.
	See ECF No. 75 at 9. 	This evidence
includes: (1) “Caremark’s business records showing that a CVS Specialty online
account was created using [Ms. Gluesing’s] email address and a password specified
by the account creator on April 1, 2022,”
id. (citing ECF No. 63-11 [Ex. A, Howell
Decl.] at 3; ECF No. 63-13 [Ex. C, Howell Decl.] at 2); (2) “an email that [Ms.
Gluesing] received on April 1, 2022, thanking her ‘for creating an account on
CVSspecialty.com,’”
id. (citing ECF No. 63-7 [Ex. F, Mittal Decl.] at 2 (“Dear SHEILA,
Thank you for creating an account on CVSspecialty.com.”)); and (3) “the fact that [Ms.
Gluesing] 	thereafter 	used 	her 	online 	account 	more 	than 	35 	times 	to 	fill 	her
prescription at CVS Specialty Pharmacy, which would require her to log in to the
account using the email and created password,”
id. (citing ECF No. 63-15 [Ex. E,
Howell Decl.] at 3).8
Ms. Gluesing’s version of events also raise several implausibilities.
	See
Barrows, 	36 	F.4th 	at 51 	(advising 	courts 	that 	“where 	the 	facts 	alleged 	in 	a
nonmovant’s 	declaration 	are 	so 	contradictory 	that 	doubt 	is 	cast 	upon 	their
plausibility, then absent other evidence, granting the motion to compel may be
8 Defendants also submitted other evidence that is the subject of Ms. Gluesing’s
Motion to Preclude and Strike Defendant Caremark’s Undisclosed Evidence Under
Rule 37(c)(1).
See ECF No. 68. In essence, Ms. Gluesing faults Defendants for failing
to timely disclose certain evidence related to the creation of the CVS Specialty online
account, and she seeks to strike this evidence.
	Id. The Court does not and need not
consider that evidence because it finds that Defendants have produced ample other
evidence to support a finding that Ms. Gluesing created the CVS Specialty online
account. As such, Ms. Gluesing’s Motion is DENIED as moot. ECF No. 68.
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appropriate” (internal quotation marks and citations omitted)). 	It seems highly
unlikely, for instance, that a medical provider would create an online account for Ms.
Gluesing using her email address, come up with a unique password for her, and then
provide her with such login details so that Ms. Gluesing could proceed to access her
online account more than thirty-five times over a period of years.
In sum, Ms. Gluesing’s statements “that she cannot recall [entering into] an
agreement . . . fail[ ] to create a triable issue of fact,” especially given the evidence
Defendants present to show that Ms. Gluesing did in fact create a CVS Specialty
online account.
	See Barrows, 36 F.4th at 51 (2d Cir. 2022);
see also Houtchens v.
Google LLC, 649 F. Supp. 3d 933, 942 (N.D. Cal. 2023) (“Google has offered evidence
that Plaintiffs checked a box agreeing to Fitbit’s Terms of Service when they created
their Fitbit accounts. 	Plaintiffs’ bare assertion that they do not recall this process
does not overcome . . . Google’s evidence.”). 	The Court therefore finds that Ms.
Gluesing has unambiguously manifested assent to CVS Specialty’s Terms.
***
Accordingly, because CVS Specialty provides reasonably conspicuous notice of
its arbitration agreement and because Ms. Gluesing unambiguously manifested
assent 	to that 	agreement, 	the 	Court 	finds 	that 	Ms. 	Gluesing 	formed 	a 	valid
arbitration agreement with CVS Specialty.
See Meyer, 868 F.3d at 76.
B. 	The CVS Specialty Terms Delegated the Issue of Economic Duress to an
Arbitrator
1. 	By Incorporating the AAA Rules, the CVS Specialty Terms
Delegated Questions of Arbitrability to an Arbitrator
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Having determined that an arbitration agreement exists, the next question is
whether Ms. Gluesing “agreed to arbitrate issues of arbitrability, including the
validity and scope of the arbitration agreement.”
Toth v. Everly Well, Inc., 118 F.4th
403, 410 (1st Cir. 2024). 	Defendants argue that the Court need not answer this
question because the CVS Specialty Terms contain a delegation clause, which
delegates this issue to an arbitrator to decide. ECF No. 63 at 14.
For context, a delegation clause is essentially “an agreement to submit to
arbitration those issues relating to the scope, validity, and enforceability of an
arbitration agreement.”
	Toth, 118 F.4th at 410 (1st Cir. 2024) (citing
First Options,
514 U.S. at 942). 	With a delegation clause, parties may delegate “questions of
arbitrability” to an arbitrator, so long as there is “clear and unmistakable” evidence
of the delegation.
Henry Schein, 586 U.S. at 69 (citing
First Options, 514 U.S. at 944).
“When the parties’ contract delegates [an] arbitrability question to an arbitrator, . . .
a court possesses no power to decide [that] arbitrability issue.”
Id. at 68.
Defendants here assert—and Ms. Gluesing does not dispute—that the CVS
Specialty Terms incorporate the Consumer Arbitration Rules of the American
Arbitration Association (“AAA”). 	ECF No. 63 at 15 (citing ECF No. 63-14 [Ex. D,
Howell Decl.] at 16 (“The arbitration will be administered by the [AAA] under its
Consumer Arbitration Rules . . . as amended by this Agreement.”)). 	Critically, the
First Circuit has made clear that “incorporation of the AAA arbitration rules
constitutes clear and unmistakable evidence of the parties’ intent to delegate
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arbitrability issues to the arbitrator.”
	Bossé v. N.Y. Life Ins., 992 F.3d 20, 29 (1st
Cir. 2021) (citing
Awuah v. Coverall N. Am., Inc., 554 F.3d 7, 11-12 (1st Cir. 2009)).
Indeed, the AAA rules “provide that the arbitrator
must hear any ‘objections
with respect to the existence, scope, or validity of the arbitration agreement,’” as well
as objections “‘to the arbitrability of any claim or counterclaim.’”
	Toth, 118 F.4th
at 414 (emphasis added) (quoting Com. Arb. Rules & Mediation Procs. R-7(a) (2013)).
This necessarily encompasses Ms. Gluesing’s ERISA and RICO claims, meaning that
an arbitrator must hear those claims. 	But does this delegation also encompass her
economic duress argument such that the arbitrator must hear it?
2. 	Economic Duress Is a Question of Arbitrability for an Arbitrator
to Decide
According to Ms. Gluesing, “no agreement was ever formed between [her] and
CVS Specialty” because “the pharmacy structured its Terms to coerce patients like
[her] into agreeing to the terms through economic duress.”9 	ECF No. 66 at 10.
Defendants counter that Ms. Gluesing’s economic duress argument is not a challenge
to the arbitration agreement’s
formation, but that it is instead a challenge to the
9 In her initial Response to Defendants’ Motion to Compel Arbitration, Ms.
Gluesing 	also 	argued 	that 	“CVS 	Specialty 	Pharmacy’s 	purported 	arbitration
agreement is unenforceable because it is unconscionable.” ECF No. 24 at 21. Yet Ms.
Gluesing does not appear to press the unconscionability argument in her renewed
Response. To the extent that she does, unconscionability claims, like economic duress
claims, are challenges to contract validity as opposed to contract formation.
	See Wu
v. Uber Techs., Inc., 260 N.E.3d 1060, 1077 (N.Y. 2024). And Ms. Gluesing’s challenge
appears to be one to the entire contract as opposed to its delegation provision, thereby
rendering it a question of arbitrability. 	ECF No. 66 at 20 (“[A]ny such
agreement
would be . . . unconscionable.” (emphasis added));
see Toth, 118 F.4th at 410 (holding
that challenges to the validity of the entire contract, as opposed to the validity of a
delegation provision, are for arbitrators to decide).
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arbitration agreement’s
validity. ECF No. 75 at 21. This is an important distinction
because, although disputes “concern[ing] contract formation . . . [are] generally for
courts to decide,”
Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S. 287, 296
(2010), courts may only decide certain disputes relating to an arbitration agreement’s
validity.
See Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 444 (2006).
Indeed, the Supreme Court has differentiated between “two types of challenges
to the validity of arbitration agreements: (1) challenges to the validity of an entire
contract which contains an arbitration clause, and (2) challenges to the validity of the
specific agreement to resolve the dispute through arbitration.”
	Farnsworth v.
Towboat Nantucket Sound, Inc., 790 F.3d 90, 96 (1st Cir. 2015) (citing
Rent-A-Center,
W., Inc. v. Jackson, 561 U.S. 63, 70 (2010);
Buckeye Check Cashing, 546 U.S. at 444).
“In a line of cases . . ., the Court has held that challenges of the first type are for the
arbitrator to decide, whereas challenges of the second type are for the courts to decide,
if timely and properly made.”
Id. (citing
Rent-A-Center, 561 U.S. at 70–71;
Buckeye
Check, 546 U.S. at 444–45;
Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S.
395 (1967)).10
Where, as here, a party is subject to a delegation clause, they are somewhat
limited in the types of challenges they may bring against an arbitration agreement.
10 The Supreme Court has referred to this as the “severability” doctrine,
see
Prima Paint, 388 U.S. at 402–04, which “requires that challenges to the enforceability
of the parties’ agreement as a whole rather than [those] specifically directed at the
agreement to arbitrate go to an arbitrator.”
	Nat’l Fed’n of the Blind, 904 F.3d at 81
n.15. 	In essence, the severability doctrine “creates a legal fiction in which the
arbitration agreement is a separate or separable contract from the underlying
contract that is being challenged.”
Id. (citing
Prima Paint, 388 U.S. at 402–04).
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The FAA treats delegation clauses “like any other arbitration agreement.”
Toth, 118
F.4th at 410 (citing
Bossé, 992 F.3d at 27 n.7). “[A]bsent a successful challenge to the
delegation provision, courts must send all arbitrability disputes to arbitration.”
Coinbase, Inc. v. Suski, 602 U.S. 143, 152 (2024). 	As such, this leaves the party
opposing arbitration with only two viable options: (1) they may “challenge the
formation of the contract”; or (2) they may challenge “the specific validity of the
delegation provision.”
Toth, 118 F.4th at 410 (citing
Rent-A-Center, 561 U.S. at 71).
Here then, the Court must answer the following questions. First, is economic
duress a question of contract formation or contract validity? 	And second, if it is a
question of contract validity, is Ms. Gluesing’s challenge to the validity of the
entire
contract or a challenge
specifically to the validity of the delegation provision?
a. 	Economic Duress Is a Question of Contract Validity
As to the first question, the First Circuit has said that “[o]ne could challenge
the formation of a contract by claiming one of the essential elements . . . is missing”
or “by showing that one party never agreed to the terms of the contract, that a
signatory did not possess the authority to commit the principal, or that the signor
lacked the mental capacity to assent.”
	Nat’l Fed’n of the Blind, 904 F.3d at 81
(internal citations omitted). 	“On the other hand, a challenge to validity requires
consideration of the enforceability of the agreement and if it is void or voidable.”
Id.
(citing
Granite Rock Co., 561 U.S. at 301;
Buckeye, 546 U.S. at 448–49). 	“Like
formation, this challenge requires a look at relevant state law.”
Id. (citing
Perry, 482
U.S. at 492 n.9).
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New York courts have been clear on this issue. 	They have recognized that
“[e]conomic duress is an affirmative defense to a contract cause of action, making the
alleged contract
voidable.”
	Finserv Comput. Corp. v. Bibliographic Retrieval Servs.,
Inc., 509 N.Y.S.2d 187, 188–89 (N.Y. App. Div. 1986) (emphasis added) (citing
Stewart M. Muller Constr. Co., Inc. v. N.Y. Tel. Co., 359 N.E.2d 328, 328 (N.Y. 1976)
(“A contract may be voided on the ground of economic duress where the complaining
party was compelled to agree to its terms by means of a wrongful threat which
precluded the exercise of its free will.”));
see also Dairy King, Inc. v. Boar’s Head
Provisions Co., Inc., 252 N.Y.S.3d 585, 590 (N.Y. App. Div. 2026) (“Economic duress
‘permits a complaining party to void a contract and recover damages when it
establishes that it was compelled to agree to the contract terms because of a wrongful
threat by the other party which precluded the exercise of its free will.’” (quoting
805
Third Ave. Co. v. M.W. Realty Assocs., 448 N.E.2d 445, 451 (N.Y. 1983))).
Accordingly, because Ms. Gluesing’s economic duress argument contemplates
rendering her agreement with CVS Specialty voidable, the Court finds that it is a
challenge to the validity—not the formation—of the agreement.
	See Nat’l Fed’n of
the Blind, 904 F.3d at 81;
Finserv Comput. Corp., 509 N.Y.S.2d at 188–89;
Dairy
King, 252 N.Y.S.3d at 590.
b. 	Ms. Gluesing’s Economic Duress Argument Is a Challenge
to the Validity of the Entire Contract, and It Must Be
Heard by an Arbitrator
As to the second question, it is clear that Ms. Gluesing’s economic duress
argument is a challenge to her contract with CVS Specialty as a whole. She refers to
her challenge as “
structural economic duress.” 	ECF No. 66 at 16 (emphasis added).
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She contends that CVS Specialty “
structured its Terms to coerce patients like [her]
into agreeing to the terms through economic duress,” and adds that “[she]—and all
putative class members—have no choice but to fill their prescriptions for their
targeted medications through CVS Specialty.”
Id. at 10, 12 (emphasis added).
This language reveals that Ms. Gluesing is challenging “the
entire agreement,”
that is, the entirety of CVS Specialty’s Terms, as structurally coercive.
	Rent-A-
Center, 561 U.S. at 73 (emphasis in original). However, she does not raise a specific
challenge to CVS Specialty’s delegation clause itself.
See id. This is ultimately fatal
to her position.
Because Ms. Gluesing challenges the entirety of CVS Specialty’s Terms as
structurally coercive, the Court concludes that this issue is for an arbitrator to decide.
See Toth, 118 F.4th at 410;
Rent-A-Center, 561 U.S. at 71.
C. 	Defendants May Enforce the Arbitration Agreement Under a Third-
Party Beneficiary Theory
Finally, the Court considers whether Defendants—even as nonsignatories to
CVS Specialty’s arbitration agreement—are entitled to enforce that agreement
against Ms. Gluesing. In answering this question, there are two ancillary questions
that the Court must answer: (1) whether the Court or an arbitrator must decide
whether Defendants are entitled to nonsignatory enforcement of CVS Specialty’s
arbitration 	agreement; 	and 	(2) 	whether 	Defendants 	are 	in 	fact 	entitled 	to
nonsignatory enforcement under a third-party beneficiary theory.
1. 	This Court—As Opposed to an Arbitrator—Must Decide Whether
Defendants Can Invoke CVS Specialty’s Arbitration Agreement
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Recall that the party seeking to compel arbitration bears the burden of proving
that they are “‘entitled to invoke the arbitration clause.’”
	Dialysis Access Ctr., 638
F.3d at 375 (quoting
InterGen, 344 F.3d at 142). Defendants here concede that they
are nonsignatories to CVS Specialty’s Terms.
See ECF No. 63 at 18–22; ECF No. 75
at 13 (“As set forth in the Renewed Motion, Defendants have the right to compel
arbitration under the CVS Specialty Terms of Use as non-signatories[.]”). 	As such,
there is a dispute over whether Defendants can invoke CVS Specialty’s arbitration
agreement. 	Nonetheless, as with economic duress, Defendants contend that this
dispute is not for the Court to resolve, and that it is instead something that an
arbitrator must decide. 	ECF No. 63 at 18. 	That is so, according to Defendants,
because of the delegation clause contained within CVS Specialty’s Terms.
Id.
The Court disagrees. 	Ordinarily speaking, whether a party to a contract can
enforce 	an 	arbitration 	agreement 	is 	a 	“threshold” 	or 	“gateway” 	question 	of
arbitrability that can be delegated to an arbitrator to decide.
See Rent-A-Center, 561
U.S. at 68. 	However, just last year, the First Circuit recognized that nonsignatory
enforcement of a delegation clause differs from “an ordinary case” involving two
signatories to an agreement.
	Morales-Posada v. Cultural Care, Inc., 141 F.4th 301,
309 (1st Cir. 2025). 	The court observed that, “as a general rule, contractual
agreements bind only the parties to the agreement and may be enforced only by those
parties,” and that “‘a contract does not grant enforceable rights to nonsignatories.’”
Id. at 309–10 (citing
McCarthy v. Azure, 22 F.3d 351, 362 (1st Cir. 1994)).
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Thus, to “overcome” this general rule, a nonsignatory “must
first establish [its]
right to enforce a delegation clause through one or more of the ‘traditional principles’
of contract law that permit nonsignatory enforcement.”
	Sheet Metal Workers Loc.
No. 20 Welfare & Benefit Fund v. CVS Pharmacy, Inc., Nos. 16-cv-046-JJM-PAS, 16-
cv-447-JJM-PAS, 2026 WL 278704, at *6 (D.R.I. Feb. 3, 2026) (emphasis in original)
(quoting
Morales-Posada, 141 F.4th at 309–10). Such “traditional principles” include
“assumption, piercing the corporate veil, alter ego, incorporation by reference, third-
party beneficiary theories, waiver and estoppel.”
Morales-Posada, 141 F.4th at 309–
10 (quoting
Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 631 (2009)). 	“And
whether a nonsignatory . . . can make this showing is squarely an issue for this Court,
rather than an arbitrator, to decide.”
	Sheet Metal Workers, 2026 WL 278704, at *6
(citing
Morales-Posada, 141 F.4th at 311).11
Thus, 	this 	Court—as 	opposed 	to 	an 	arbitrator—will 	decide 	whether
Defendants 	are 	entitled 	to 	enforce 	CVS 	Specialty’s 	arbitration 	agreement 	as
nonsignatories to the agreement.
2. 	Defendants Are Third-Party Beneficiaries That Are Entitled to
Invoke CVS Specialty’s Arbitration Agreement
11 Defendants disagree with the First Circuit’s holding in
Morales-Posada and
note that other circuits require the arbitrator to decide the issue of nonsignatory
enforcement. 	ECF No. 63 at 18 & n.7 (citing
Zirpoli v. Midland Funding, LLC, 48
F.4th 136, 144 (3d Cir. 2022);
Casa Arena Blanca LLC v. Rainwater by Est. of Green,
No. 21-2037, 2022 WL 839800, at *3 (10th Cir. Mar. 22, 2022);
Swiger v. Rosette, 989
F.3d 501, 507 (6th Cir. 2021);
Eckert/Wordell Architects, Inc. v. FJM Props. of
Willmar, LLC, 756 F.3d 1098, 1100 (8th Cir. 2014)). Of course, whatever the merits
of this debate, “in the absence of a squarely binding Supreme Court decision
mandating a divergence, it is not within the authority of a district court to blaze trails
contrary to existing First Circuit precedent.”
	Cox v. City of Boston, No. 22-110009-
RGS, 2024 WL 4608587, at *2 (D. Mass. Oct. 29, 2024).
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The next question is whether Defendants have met their burden of establishing
that one of the “‘traditional principles’ of contract law permit[ting] nonsignatory
enforcement” applies to them.
Morales-Posada, 141 F.4th at 309–10 (quoting
Arthur
Andersen, 556 U.S. at 631). According to Defendants, they can satisfy their burden
through equitable estoppel and third-party beneficiary theories. ECF No. 63 at 18–
22; ECF No. 75 at 13. The Court focuses its analysis on Defendants’ invocation of the
third-party beneficiary theory.
Both parties agree that New York law applies to this part of the analysis. ECF
No. 63 at 21–22; ECF No. 66 at 24–25. 	Indeed, the Supreme Court has instructed
that whether a contract may be enforced by a nonparty through “third-party
beneficiary 	theories” 	is 	a 	question 	for 	courts 	to 	analyze 	through 	the 	lens 	of
“‘traditional principles’ of state law.”
Arthur Andersen, 556 U.S. at 631.
New York courts have recognized the right of a nonsignatory to enforce an
arbitration agreement as a third-party beneficiary.
See Shapiro v. Sankarsingh, 114
N.Y.S.3d 68, 69 (N.Y. App. Div. 2019) (“Although [a] defendant is not a signatory to
[an] arbitration agreement . . ., [they] can still enforce it as a third-party beneficiary.”
(citing
Mendel v. Henry Phipps Plaza W., Inc., 844 N.E.2d 748, 751 (N.Y. 2006))).
Under New York law, “[t]he touchstone of third-party beneficiary status is the intent
of the parties to the agreement.”
	In re Generali COVID-19 Travel Ins. Litig., 577 F.
Supp. 3d 284, 292 (S.D.N.Y. 2021) (citing
Port Auth. of N.Y. & N.J. v. Brooklyn Union
Gas Co., 119 N.Y.S.3d 191, 194 (N.Y. App. Div. 2020)). The analysis primarily focuses
on whether the contract’s language demonstrates “that the contract was intended for
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[the third party’s] benefit.”
Mendel, 844 N.E.2d at 751 (quoting
Burns Jackson Miller
Summit & Spitzer v. Lindner, 451 N.E.2d 459, 469 (N.Y. 1983)). 	Of course,
“[e]xistence of a valid and binding contract is . . .a
sine qua non” 12 of the third-party
beneficiary 	analysis.
	Lindner, 	451 	N.E.2d 	at 469 	(internal 	citations 	omitted).
However, as relevant here, the Court has recognized that there is a valid and binding
arbitration agreement between Ms. Gluesing and CVS Specialty.
To “determine and give effect to” a contract’s “purpose and intent,” New York
courts instruct that the language of a contract “must be read ‘as a harmonious and
integrated whole.’”
Port Auth. of N.Y. & N.J., 119 N.Y.S.3d at 194 (quoting
Nomura
Home Equity Loan, Inc., Series 2006–FM2 v. Nomura Credit & Cap., Inc., 92 N.E.3d
743, 747 (N.Y. 2017)). 	Here, two portions of CVS Specialty’s Terms are relevant to
the Court’s analysis. First, the Terms state at the very beginning that, “[b]y tapping
or clicking ‘I agree,’ . . . or by using the Service . . ., you expressly agree to be bound
by this Agreement,” and “the Service” is defined as “any services or goods provided
through or in connection with the Site or by CVS Caremark Specialty Pharmacy or
one of its subsidiaries or affiliates.” ECF No. 63-14 [Ex. D, Howell Decl.] at 2. Second,
in the “Dispute Resolution” portion, the Terms provide that: “All disputes arising out
of or related to this Agreement or any aspect of the relationship between you, on the
one hand, and CVS/Specialty or its suppliers or vendors, on the other hand, . . . will
be resolved through final and binding arbitration[.]”
Id. at 16.
12
Sine qua non is a Latin phrase meaning “[a]n indispensable condition or
thing; something on which something else necessarily depends.”
	Sine Qua Non,
Black’s Law Dictionary (9th ed. 2009).
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Though the words “affiliate” and “vendor” are undefined in CVS Specialty’s
Terms, courts in New York instruct that “[t]he words and phrases used in an
agreement must be given their plain meaning so as to define the rights of the parties.”
Mazzola v. Cnty. of Suffolk, 533 N.Y.S.2d 297, 297 (N.Y. App. Div. 1988) (internal
citations omitted). 	Indeed, “it is common practice . . . to refer to the dictionary to
determine the plain and ordinary meaning of words to a contract.”
Id.
Turning to its dictionary definition, an “affiliate” is “[a] corporation that is
related to another corporation by shareholdings or other means of control,” and it is
further defined as “a subsidiary, parent, or sibling corporation.”
	Affiliate, Black’s
Law Dictionary (9th ed. 2009). 	Meanwhile, a “vendor” is defined as “[a] seller.”
Vendor, Black’s Law Dictionary (9th ed. 2009). According to Defendants, Caremark
qualifies as an “affiliate” and PrudentRx qualifies as a “vendor.” 	ECF No. 63 at 21.
Defendants thus argue that CVS Specialty’s Terms were intended to benefit both
entities.
Id. The Court agrees.
First, as to Caremark, Ms. Gluesing acknowledges in her Complaint that
“Caremark . . . operates a specialty pharmacy, commercially known as ‘CVS Specialty
Pharmacy.’” ECF No. 1 at 1, 7. That Caremark “operates” CVS Specialty necessarily
means that it is a corporation exercising a “means of control” over CVS Specialty,
thereby rendering it an “affiliate” of CVS Specialty. 	In addition, Ms. Gluesing
concedes that Caremark is CVS Specialty’s “indirect
parent.” 	ECF No. 66 at 24
(emphasis added). 	Ms. Gluesing argues that a “parent” somehow differs from an
“affiliate,” but the Court struggles to see how this is so considering that the two terms
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are synonymous with one another.
	See Affiliate, Black’s Law Dictionary (9th ed.
2009).
As 	an 	affiliate, 	CVS 	Specialty’s 	arbitration 	agreement 	is 	intended 	for
Caremark’s benefit. Again, the arbitration agreement applies to “all disputes arising
out of or related to this Agreement,” and the Agreement explicitly reaches “any
services or goods provided through or in connection with . . . one of [CVS Specialty’s]
. . . affiliates.” 	ECF No. 63-14 [Ex. D, Howell Decl.] at 2, 16. 	This broad language
expresses 	an 	intent 	to 	afford 	Caremark 	the 	right 	to 	enforce 	CVS 	Specialty’s
arbitration agreement.
Second, as to PrudentRx, Ms. Gluesing herself refers to PrudentRx (as well as
Caremark, for that matter) as a “vendor[ ]” in her Complaint.
	See ECF No. 1 at 6.
Both parties also direct the Court’s attention to a “Master Service Agreement,”
see
ECF No. 66 at 26; ECF No. 75 at 20, which PrudentRx entered with “CVS Pharmacy,
Inc. . . . on its own behalf and on behalf of [CVS Pharmacy, Inc.’s] subsidiaries and
affiliates.” ECF No. 66-15 [Ex. 14] at 2. The Master Service Agreement refers to CVS
Pharmacy, Inc. and its subsidiaries and affiliates “individually and collectively” as
“CVS.” 	ECF No. 66-15 [Ex. 14] at 2. 	And as Defendants point out, CVS Specialty
Pharmacy is an affiliate of CVS Pharmacy, Inc. ECF No. 75 at 20 (citing ECF No. 66-
14 [Ex. 13] at 2).
The Master Service Agreement also defines PrudentRx as a “Vendor,” and it
states that “CVS presently intends to
purchase the Services from Vendor provided
Vendor is providing the Services in a timely and consistent manner as described in
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this 	Agreement.” 	ECF 	No. 	66-15 	[Ex. 	14] 	at 2 	(emphasis 	added). 	It 	bears
reemphasizing that CVS Specialty is encompassed in the definition of “CVS” in the
Master Service Agreement, meaning that it too—as an affiliate of CVS Pharmacy,
Inc.— “purchase[s] . . . [s]ervices” from PrudentRx.
Id. at 2. This renders PrudentRx
a “vendor” of CVS Specialty and, as relevant to the third-party beneficiary analysis,
also demonstrates an intent to afford PrudentRx the right to enforce CVS Specialty’s
arbitration agreement.
In 	sum, 	the 	Court 	concludes 	that 	Caremark 	and 	PrudentRx—as 	CVS
Specialty’s respective “affiliate” and “vendor”—are entitled to enforce CVS Specialty’s
arbitration agreement against Ms. Gluesing as third-party beneficiaries.
IV. 	CONCLUSION
For the reasons stated, Defendants’ Renewed Motion to Compel Arbitration is
GRANTED. 	ECF No. 63. 	In addition, as explained above, because the Court does
not and need not rely on the evidence that forms the basis of Ms. Gluesing’s Motion
to Preclude and Strike Defendant Caremark’s Undisclosed Evidence Under Rule
37(c)(1), that Motion is DENIED as moot. ECF No. 68.
“When a district court finds that a lawsuit involves an arbitrable dispute, and
a party requests a stay pending arbitration, § 3 of the FAA compels the court to stay
the proceeding.”
Smith v. Spizzirri, 601 U.S. 472, 478 (2024);
see 9 U.S.C. § 3.
Defendants request such a stay here. 	ECF No. 63 at 3. 	Accordingly, this case will
be STAYED pending arbitration. 	The parties are ORDERED to file a joint status
report within 14 days of the conclusion of arbitration.
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IT IS SO ORDERED.
s/John J. McConnell, Jr.
_________________________________
JOHN J. MCCONNELL, JR.
Chief Judge
United States District Court
July 7, 2026
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