Waterfront Family Pharmacy LLC v. Optumrx, Inc. et al

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
WATERFRONT FAMILY PHARMACY LLC,
Plaintiff,
v. 	CIVIL NO. 1:25-CV-29
(KLEEH)
OPTUMRX, INC.,
EXPRESS SCRIPTS, INC., and
CAREMARK PHC, LLC d/b/a
CVS Caremark,
Defendants.
MEMORANDUM OPINION AND ORDER GRANTING MOTIONS
TO COMPEL ARBITRATION, GRANTING MOTION TO SEVER
AND TRANSFER, AND DISMISSING CASE
Pending before the Court are several motions. 	For the reasons
discussed 	below, 	the 	Court 	GRANTS 	the 	motions 	to 	compel
arbitration, GRANTS the motion to sever and transfer, and DISMISSES
this action.
I. 	BACKGROUND AND PROCEDURAL HISTORY
The Plaintiff, Waterfront Family Pharmacy LLC (“Waterfront”),
brought 	this 	action 	against 	the 	Defendants, 	Optumrx, 	Inc.
(“Optumrx”), 	Express 	Scripts, 	Inc. 	(“Express 	Scripts”), 	Caremark
PHC, 	LLC 	d/b/a 	CVS 	Caremark 	(“Caremark”), 	and 	Humana 	Pharmacy
Solutions, 	Inc. 	(“Humana”) 	(together, 	“Defendants”). 	Humana 	was
dismissed from the case on May 13, 2025.
Waterfront alleges that Defendants violated the West Virginia
Pharmacy 	Audit 	Integrity 	Act 	(the 	“Act”), 	W. 	Va. 	Code 	§ 33-51-
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WATERFRONT V. OPTUMRX ET AL. 	1:25-CV-29
MEMORANDUM OPINION AND ORDER GRANTING MOTIONS
TO COMPEL ARBITRATION, GRANTING MOTION TO SEVER
AND TRANSFER, AND DISMISSING CASE
2
9(f). 	Defendants 	are 	pharmacy 	benefits 	managers 	(“PBMs”).
Waterfront alleges that Defendants refused to reimburse Waterfront
at 	the 	required 	rate, 	fraudulently 	concealed 	their 	actions, 	and
entered 	into 	unconscionable 	arbitration 	and 	choice-of-law
provisions to avoid complying with the Act.
On March 31, 2025, Waterfront filed a complaint. 	See ECF No.
1. 	On 	June 	4, 	2025, 	it 	filed 	an 	amended 	complaint 	to 	substitute
and 	name 	the 	correct 	Caremark 	entities. 	See 	ECF 	No. 	76. 	The
following motions are pending and fully briefed:
(1) 	Waterfront’s 	motion 	for 	preliminary
injunction [ECF No. 31];
(2) 	Caremark’s 	motion 	to 	compel 	arbitration
[ECF No. 39];
(3) 	Optumrx’s 	motion 	to 	compel 	arbitration
[ECF No. 45];
(4) 	Express Scripts’s motion to dismiss [ECF
No. 50];
(5) 	Express 	Scripts’s 	motion 	to 	sever 	and
transfer 	claims 	or, 	in 	the 	alternative,
to dismiss [ECF No. 80];
(6) 	Optumrx’s 	renewed 	motion 	to 	compel
arbitration [ECF No. 89]; and
(7) 	Caremark’s 	renewed 	motion 	to 	compel
arbitration [ECF No. 90].
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MEMORANDUM OPINION AND ORDER GRANTING MOTIONS
TO COMPEL ARBITRATION, GRANTING MOTION TO SEVER
AND TRANSFER, AND DISMISSING CASE
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II. 	ALLEGATIONS IN THE AMENDED COMPLAINT
The 	Act 	became 	effective 	on 	June 	4, 	2018. 	Am. 	Compl., 	ECF
No. 	76, 	at 	¶ 	8. 	It 	regulates 	the 	conduct 	of 	PBMs 	and 	has 	been
amended 	from 	time 	to 	time. 	Id. 	¶ 	9. 	In 	2021, 	the 	West 	Virginia
Legislature 	(the 	“Legislature”) 	passed 	an 	amendment 	to 	the 	Act,
codified 	at 	W. 	Va. 	Code 	§ 	33-51-9(f). 	Id. 	¶ 	10. 	The 	amendment
makes it illegal for a PBM to “reimburse a pharmacy or pharmacist
for a prescription drug or pharmacy service in an amount less than
the 	amount 	the 	[PBM] 	reimburses 	itself 	or 	an 	affiliate 	for 	the
same prescription drug or pharmacy service.” 	Id. ¶ 11. 	Waterfront
alleges 	that 	since 	2021, 	Defendants 	have 	“intentionally,
willfully, 	systematically, 	and 	with 	fraudulent 	intent 	engaged 	in
an 	illegal 	scheme” 	to 	violate 	the 	Act 	“by 	reimbursing 	their 	own
affiliated pharmacies for prescription drugs and pharmacy services
at 	rates 	much 	higher 	than 	the 	rates 	at 	which 	they 	have
reimbursed . . . [Waterfront] for the same prescription drugs and
pharmacy services.” 	Id. ¶ 12. 	Waterfront alleges that Defendants
have 	acted 	to 	cover 	up 	and 	fraudulently 	conceal 	their 	illegal
activities. 	Id. ¶ 14.
Waterfront 	alleges 	that 	the 	Act 	requires 	Defendants 	to 	post
on 	their 	websites 	significant 	quarterly 	reporting 	of 	their
activities, and since 2021, Defendants have refused to do so in an
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AND TRANSFER, AND DISMISSING CASE
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effort to hide unlawful activity. 	Id. ¶¶ 15-17. 	Waterfront also
alleges that Defendants have each imposed unconscionable adhesive
contracts, which they have utilized to violate the Act and conceal
violations from Waterfront. 	Id. ¶ 18. 	Waterfront further alleges
that 	Defendants 	have 	refused 	to 	make 	copies 	of 	the 	contracts
available 	to 	Waterfront, 	and 	the 	purpose 	of 	this 	was 	to
fraudulently 	conceal 	their 	illegal 	scheme. 	Id. 	¶¶ 	19-20. 	The
adhesive 	contracts, 	as 	Waterfront 	alleges, 	contain 	“broad 	and
onerous 	choice 	of 	law 	provision 	and 	arbitration 	clauses,” 	which
force 	Waterfront 	to 	adjudicate 	disputes 	under 	non-West 	Virginia
law and participate in arbitration in another state. 	Id. ¶ 21.
Waterfront brings the following causes of action:
x 	Count 	One: 	Violation 	of 	the 	Act, 	W. 	Va. 	Code
§ 33-51-9(f) (against all Defendants); and
x 	Count 	Two: 	Declaratory 	Judgment, 	28 	U.S.C.
§ 2201 (against all Defendants).
Waterfront requests the following relief:
x 	Injunctive 	relief 	enjoining 	Defendants 	from
continually 	and 	prospectively 	violating 	the
Act by entering an order requiring Defendants
to comply with the Act in its entirety;
x 	Injunctive 	relief 	ordering 	Defendants 	to
adhere 	to 	the 	requirements 	of 	the 	Act 	by
publishing 	their 	required 	reports 	on 	the
publicly available websites for a period of at
least 24 months;
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TO COMPEL ARBITRATION, GRANTING MOTION TO SEVER
AND TRANSFER, AND DISMISSING CASE
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x 	Declaratory relief;
x 	Compensatory damages;
x 	Punitive damages;
x 	Pre-judgment and post-judgment interest;
x 	Attorney’s fees costs, and expenses; and
x 	Any 	other 	relief 	deemed 	appropriate 	by 	the
Court.
III. STANDARD OF REVIEW
Rule 12(b)(1)
Rule 12(b)(1) of the Federal Rules of Civil Procedure allows
the 	Court 	to 	dismiss 	an 	action 	for 	lack 	of 	jurisdiction 	over 	the
subject 	matter. 	“The 	plaintiff 	bears 	the 	burden 	of 	proving 	that
subject 	matter 	jurisdiction 	exists.” 	Evans 	v. 	B.F. 	Perkins 	Co.,
166 	F.3d 	642, 	647 	(4th 	Cir. 	1999) 	(citation 	omitted). 	In
considering 	a 	motion 	to 	dismiss 	pursuant 	to 	Rule 	12(b)(1), 	the
court should “regard the pleadings as mere evidence on the issue,
and may consider evidence outside the pleadings without converting
the 	proceeding 	to 	one 	for 	summary 	judgment.” 	Id. 	(citation
omitted). 	The court should grant the motion “only if the material
jurisdictional 	facts 	are 	not 	in 	dispute 	and 	the 	moving 	party 	is
entitled to prevail as a matter of law.” 	Id. (citation omitted).
When a defendant asserts multiple defenses, “questions of subject
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matter 	jurisdiction 	must 	be 	decided 	first, 	because 	they 	concern
the court’s very power to hear the case.” 	Owens-Illinois, Inc. v.
Meade, 	186 	F.3d 	435, 	442 	n.4 	(4th 	Cir. 	1999) 	(citations 	and
internal quotation marks omitted).
Rule 12(b)(6)
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows
a defendant to move for dismissal upon the ground that a complaint
does 	not 	“state 	a 	claim 	upon 	which 	relief 	can 	be 	granted.” 	In
ruling 	on 	a 	12(b)(6) 	motion 	to 	dismiss, 	a 	court 	“must 	accept 	as
true 	all 	of 	the 	factual 	allegations 	contained 	in 	the 	complaint.”
Anderson 	v. 	Sara 	Lee 	Corp., 	508 	F.3d 	181, 	188 	(4th 	Cir. 	2007)
(citations 	omitted). 	A 	court 	is 	“not 	bound 	to 	accept 	as 	true 	a
legal 	conclusion 	couched 	as 	a 	factual 	allegation.” 	Papasan 	v.
Allain, 478 U.S. 265, 286 (1986) (citations omitted).
A 	court 	should 	dismiss 	a 	complaint 	if 	it 	does 	not 	contain
“enough facts to state a claim to relief that is plausible on its
face.” 	Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Factual 	allegations 	must 	“raise 	a 	right 	to 	relief 	above 	the
speculative 	level 	on 	the 	assumption 	that 	all 	of 	the 	complaint’s
allegations are true.” 	Id. at 545. 	Plausibility exists “when the
plaintiff pleads factual content that allows the court to draw the
reasonable 	inference 	that 	the 	defendant 	is 	liable 	for 	the
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AND TRANSFER, AND DISMISSING CASE
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misconduct alleged.” 	Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citation omitted). 	A motion to dismiss “does not resolve contests
surrounding the facts, the merits of a claim, or the applicability
of 	defenses.” 	Republican 	Party 	of 	N.C. 	v. 	Martin, 	980 	F.2d 	943,
952 (4th Cir. 1992) (citation omitted).
IV. 	MOTIONS TO COMPEL ARBITRATION
The 	Federal 	Arbitration 	Act 	(“FAA”) 	governs 	written
agreements 	to 	arbitrate 	a 	controversy 	arising 	out 	of 	a 	contract.
An 	arbitration 	agreement 	“shall 	be 	valid, 	irrevocable, 	and
enforceable, 	save 	upon 	such 	grounds 	as 	exist 	at 	law 	or 	in 	equity
for the revocation of any contract . . . .” 	9 U.S.C. § 2. 	There
is 	a 	“strong 	federal 	policy 	in 	favor 	of 	enforcing 	arbitration
agreements.” 	Hayes 	v. 	Delbert 	Servs. 	Corp., 	811 	F.3d 	666, 	671
(4th Cir. 2016) (citation omitted).
Of 	course, 	“[a] 	party 	cannot 	be 	required 	to 	submit 	to
arbitration 	any 	dispute 	which 	he 	has 	not 	agreed 	so 	to 	submit.”
Am. Recovery Corp. v. Computerized Thermal Imaging, Inc., 96 F.3d
88, 92 (4th Cir. 1996) (citation omitted). 	When parties disagree
about 	whether 	they 	formed 	an 	agreement 	to 	arbitrate 	at 	all, 	“the
dispute 	is 	generally 	for 	courts 	to 	decide.” 	Granite 	Rock 	Co. 	v.
Int’l 	Bhd. 	of 	Teamsters, 	561 	U.S. 	287, 	296 	(2010) 	(citation
omitted). 	“Although 	federal 	law 	governs 	the 	arbitrability 	of
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AND TRANSFER, AND DISMISSING CASE
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disputes, 	ordinary 	state-law 	principles 	resolve 	issues 	regarding
the 	formation 	of 	contracts.” 	May 	v. 	Nationstar 	Mortg., 	LLC, 	No.
3:12-CV-43, 	2012 	WL 	3028467, 	at 	*4 	(N.D.W. 	Va. 	July 	25, 	2012)
(citations 	omitted). 	As 	such, 	“the 	district 	court 	must
determine — as a condition precedent to the entry of any § 3 stay
or 	§ 	4 	order 	compelling 	arbitration 	— 	whether 	that 	party 	is
entitled to enforce the arbitration agreement under state contract
law.” 	Rogers 	v. 	Tug 	Hill 	Operating, 	LLC, 	76 	F.4th 	279, 	287 	(4th
Cir. 2023).
The 	United 	States 	Supreme 	Court 	has 	“repeatedly 	interpreted
the FAA to require questions about the validity of an arbitration
provision to be severed and adjudicated separately from any other
contractual 	question.” 	Schumacher 	Homes 	of 	Circleville, 	Inc. 	v.
Spencer, 	787 	S.E.2d 	650, 	659 	(W. 	Va. 	2016). 	The 	arbitration
provision in the larger contract must be “carved out, severed from
the 	larger 	contract, 	and . . . tested 	separately 	under 	state
contract 	law 	for 	validity 	and 	enforceability.” 	Id. 	at 	658–59.
Accordingly, 	the 	Court 	should 	examine 	only 	the 	validity 	of 	the
arbitration provisions themselves, not the other provisions in the
contracts.
In the United States Court of Appeals for the Fourth Circuit,
a 	litigant 	can 	compel 	arbitration 	under 	the
FAA 	if 	he 	can 	demonstrate 	“(1) 	the 	existence
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of 	a 	dispute 	between 	the 	parties, 	(2) 	a
written agreement that includes an arbitration
provision which purports to cover the dispute,
(3) the relationship of the transaction, which
is 	evidenced 	by 	the 	agreement, 	to 	interstate
or 	foreign 	commerce, 	and 	(4) 	the 	failure,
neglect 	or 	refusal 	of 	the 	defendant 	to
arbitrate the dispute.” 	Whiteside v. Teltech
Corp., 940 F.2d 99, 102 (4th Cir. 1991).
Adkins 	v. 	Lab. 	Ready, 	Inc., 	303 	F.3d 	496, 	500–01 	(4th 	Cir. 	2002)
(citation omitted).
“[P]arties 	can 	agree 	to 	arbitrate 	gateway 	questions 	of
arbitrability, such as whether the parties have agreed to arbitrate
or 	whether 	their 	agreement 	covers 	a 	particular 	controversy[.]”
Galloway 	v. 	Priority 	Imps. 	Richmond, 	LLC, 	No. 	20-1020, 	2023 	WL
1858387, at *1 (4th Cir. Feb. 9, 2023) (citation omitted). 	“When
the 	parties’ 	contract 	delegates 	the 	arbitrability 	question 	to 	an
arbitrator, 	the 	courts 	must 	respect 	the 	parties’ 	decision 	as
embodied 	in 	the 	contract.” 	Id. 	at 	*2 	(citation 	omitted). 	The
agreement 	“must 	clearly 	and 	unmistakably 	provide 	that 	the
arbitrator 	shall 	determine 	what 	disputes 	the 	parties 	agree 	to
arbitrate.” 	Id. 	at 	*1 	(citation 	omitted). 	“Incorporation 	by
reference 	of 	an 	arbitration 	body’s 	rules 	for 	arbitration 	that
include 	a 	rule 	that 	the 	arbitrator 	will 	determine 	gateway
arbitrability issues is considered a clear and unmistakable intent
by 	the 	parties 	to 	commit 	determinations 	of 	the 	arbitrator’s
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jurisdiction to the arbitrator.” 	Ashworth v. Five Guys Ops., LLC,
No. 3:16-06646, 2016 WL 7422679, at *2 (S.D.W. Va. Dec. 22, 2016)
(citation omitted).
A. 	Caremark’s Motions [ECF Nos. 39, 90]
The 	“Provider 	Agreement” 	between 	Waterfront 	and 	Caremark
contains 	an 	arbitration 	provision 	that 	requires 	arbitration 	of
“[a]ny 	dispute, 	claim 	or 	controversy 	between 	[Waterfront] 	and
Caremark . . . including 	Caremark’s 	current, 	future, 	or 	former
employees, 	parents, 	subsidiaries, 	affiliates, 	agents, 	and
assignees . . . including, 	but 	not 	limited 	to, 	disputes 	in
connection 	with, 	arising 	out 	of, 	or 	relating 	in 	any 	way 	to, 	the
Provider 	Agreement 	or 	to 	[Waterfront’s] 	participation 	in 	one 	of
more 	Caremark 	networks . . . .” 	See 	Petersen 	Decl., 	ECF 	No. 	39-
1, 	at 	¶ 	10; 	2024 	Provider 	Manual, 	ECF 	No. 	39-4, 	at 	95. 	The
arbitration provision also requires the arbitrator, rather than a
Court, 	to 	resolve 	any 	threshold 	challenges 	to 	the 	scope 	and
enforceability of the arbitration provision. 	Id.
Caremark 	argues 	that 	the 	Supreme 	Court 	of 	Appeals 	of 	West
Virginia 	(“SCAWV”) 	has 	reviewed 	the 	same 	agreement 	between
Waterfront 	and 	Caremark 	and 	determined 	(1) 	that 	the 	Provider
Agreement 	is 	governed 	by 	Arizona 	law; 	(2) 	that 	the 	Provider
Agreement incorporates the terms of the Provider Manual, including
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TO COMPEL ARBITRATION, GRANTING MOTION TO SEVER
AND TRANSFER, AND DISMISSING CASE
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the 	Provider 	Manual’s 	arbitration 	provision; 	and 	(3) 	that 	the
provision 	allowing 	Caremark 	to 	amend 	the 	Provider 	Manual 	upon
notice to Waterfront is enforceable under Arizona law. 	See W. Va.
CVS 	Pharm., 	LLC 	v. 	McDowell 	Pharm., 	Inc., 	796 	S.E.2d 	574 	(W. 	Va.
2017). 	In response, Waterfront argues (1) that Caremark’s motion
invokes 	“illegal 	and 	unenforceable 	arbitration 	provisions,” 	(2)
that 	the 	contracts 	at 	issue 	are 	for 	an 	illegal 	purpose, 	and 	(3)
that 	the 	arbitration 	provisions 	are 	both 	procedurally 	and
substantively unconscionable.
Here, 	applying 	the 	Adkins 	factors, 	they 	are 	all 	satisfied,
and 	arbitration 	is 	appropriate. 	The 	first 	factor 	is 	satisfied
because 	a 	dispute 	exists 	between 	the 	parties. 	This 	is 	evidenced
by Waterfront’s filing of the amended complaint. 	See May, 2012 WL
3028467, 	at 	*8. 	The 	third 	factor 	is 	also 	satisfied 	because 	the
parties 	are 	citizens 	of 	different 	states. 	The 	fourth 	factor 	is
satisfied 	because 	Waterfront 	has 	refused 	to 	arbitrate, 	which,
again, 	is 	evidenced 	by 	the 	filing 	of 	the 	amended 	complaint. 	See
id. 	The 	only 	remaining 	requirement — a 	written 	agreement 	that
includes 	an 	arbitration 	provision 	that 	purports 	to 	cover 	the
dispute — is also satisfied for the reasons discussed herein.
“Whether 	the 	parties 	have 	in 	fact 	executed 	an 	enforceable
agreement 	to 	arbitrate 	is 	a 	matter 	of 	contract 	interpretation
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governed 	by 	state 	law[.]” 	Meadows 	v. 	Cebridge 	Acquisition, 	LLC,
132 	F.4th 	716, 	726 	(4th 	Cir. 	2025) 	(citations 	omitted). 	Because
the Provider Agreement executed by Waterfront in 2007 contains an
Arizona 	choice-of-law 	provision, 1 	Arizona 	law 	governs 	its
interpretation, 	including 	whether 	it 	contains 	a 	valid 	and
enforceable 	arbitration 	provision. 	See 	Provider 	Agreement, 	ECF
No. 44, at ¶ 13. 	“In Arizona, for a valid contract to exist, the
contract must manifest mutual assent, i.e., the parties’ intent to
be 	bound.” 	Myers 	v. 	Experian 	Info. 	Sols. 	Inc., 	734 	F. 	Supp. 	3d
912, 	919 	(D. 	Ariz. 	2024) 	(citations 	and 	internal 	quotation 	marks
omitted).
1. 	The 	Provider 	Agreement 	incorporates 	the 	Provider
Manual.
The 	Provider 	Agreement 	expressly 	incorporates 	the 	Provider
Manual. 	As discussed above, the SCAWV “conclude[d] that, pursuant
to 	Arizona 	law, 	the 	arbitration 	agreements 	were 	successfully
incorporated 	by 	reference 	into 	the 	provider 	agreements 	executed
between 	the 	Direct 	Contract 	Pharmacies 	and 	Caremark.” 	McDowell,
796 	S.E.2d 	at 	585. 	Regardless 	of 	whether 	Waterfront 	is
1 Under West Virginia law, “a choice-of-law provision will be upheld unless the
chosen state has no substantial relationship to the parties to the transaction
or unless the application of the law of the chosen state would be contrary to
the fundamental public policy of this state.” 	Merrill Lynch, Pierce, Fenner &
Smith, Inc. v. Coe, 313 F. Supp. 2d 603, 609 (S.D. W. Va. 2004) (citation and
internal quotation marks omitted).
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collaterally 	estopped 	from 	arguing 	otherwise, 	the 	SCAWV’s
interpretation is correct. 	To incorporate a document by reference
into a contract under Arizona law, the contract’s reference to the
document “must be clear and unequivocal and must be called to the
attention 	of 	the 	other 	party, 	he 	must 	consent 	thereto, 	and 	the
terms 	of 	the 	incorporated 	document 	must 	be 	known 	or 	easily
available to the contracting parties.” 	Weatherguard Roofing Co.,
Inc. 	v. 	D.R. 	Ward 	Constr. 	Co., 	Inc., 	152 	P.3d 	1227, 	1229 	(Ariz.
Ct. 	App. 	2007) 	(emphasis 	and 	citations 	omitted). 	The 	Provider
Agreement’s 	reference 	to 	the 	Provider 	Manual 	meets 	these
requirements. 	The 	Provider 	Agreement 	clearly 	and 	unequivocally
references 	the 	Provider 	Manual 	by 	stating, 	“This 	Agreement, 	the
Provider 	Manual, 	and 	all 	other 	Caremark 	Documents 	constitute 	the
entire 	agreement 	between 	Provider 	and 	Caremark, 	all 	of 	which 	are
incorporated 	by 	this 	reference 	as 	if 	fully 	set 	forth 	herein 	and
referred 	to 	collectively 	as 	the 	‘Provider 	Agreement’ 	or
‘Agreement.’” 	Provider 	Agreement, 	ECF 	No. 	44, 	at 	¶ 	11. 	By
executing 	the 	Provider 	Agreement, 	Waterfront 	expressly
acknowledged receipt of the Provider Manual and agreed to be bound
by its terms: “By signing below, Provider agrees to the terms set
forth above and acknowledges receipt of the Provider Manual.” 	Id.
at 	3. 	The 	Provider 	Agreement 	thus 	incorporates 	the 	terms 	of 	the
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Provider 	Manual, 	and 	Waterfront 	manifested 	its 	assent 	to 	those
terms when it executed the Provider Agreement.
2. 	Caremark amended the Provider Manual in accordance
with the process set forth therein.
Caremark 	has 	amended 	the 	Provider 	Manual 	from 	time 	to 	time
since 2007, including most recently in 2024. 	See Petersen Decl.,
ECF 	No. 	39-1, 	at 	¶¶ 	8-14. 	The 	SCAWV 	has 	determined 	that 	the
process 	for 	amendments 	set 	forth 	in 	the 	Provider 	Manual 	is
enforceable 	under 	Arizona 	law. 	See 	McDowell, 	796 	S.E.2d 	at 	583–
84. 	The version of the Provider Manual in effect when Waterfront
executed 	the 	Provider 	Agreement 	contained 	a 	provision 	allowing
Caremark 	to 	amend 	the 	Provider 	Manual 	“by 	giving 	notice 	to
[Waterfront] of the terms of the amendment and specifying the date
the 	amendment 	becomes 	effective.” 	2004 	Provider 	Manual, 	ECF 	No.
39-3, 	at 	47. 	The 	Provider 	Manual 	further 	stated 	that 	“[i]f
[Waterfront] 	submits 	claims 	to 	Caremark 	after 	the 	effective 	date
of 	any 	notice 	or 	amendment, 	the 	terms 	of 	the 	notice 	or 	amendment
will be deemed accepted by Provider and will be considered part of
the 	Caremark 	Provider 	Agreement.” 	Id. 	Every 	version 	of 	the
Provider 	Manual 	since 	2007 	has 	contained 	a 	substantially 	similar
provision allowing amendments. 	See Petersen Decl., ECF No. 39-1,
at ¶ 9.
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Regardless 	of 	whether 	Waterfront 	is 	collaterally 	estopped
from 	challenging 	the 	enforceability 	of 	the 	Provider 	Manual’s
amendment 	provision, 	the 	SCAWV’s 	determination 	was 	correct 	as 	a
matter of Arizona law. 	“[T]o effectively modify a contract, there
must 	be: 	(1) 	an 	offer 	to 	modify 	the 	contract, 	(2) 	assent 	to 	or
acceptance 	of 	that 	offer, 	and 	(3) 	consideration.” 	Cap. 	One 	Bank
(USA), N.A. v. Davey, No. 1 CA-CV 13-0109, 2013 WL 6729261, at *5
(Ariz. 	Ct. 	App. 	Dec. 	19, 	2013) 	(citations 	and 	internal 	quotation
marks 	omitted). 	Under 	the 	process 	set 	forth 	in 	the 	Provider
Manual, Caremark offers to modify the Provider Manual by providing
notice 	of 	the 	proposed 	amendments 	and 	their 	effective 	date, 	and
Waterfront 	manifests 	its 	acceptance 	of 	the 	modifications, 	in
consideration 	of 	continued 	participation 	in 	Caremark’s 	pharmacy
networks, 	by 	continuing 	to 	submit 	claims 	after 	the 	amendments’
effective 	date. 	See 	id. 	(“Conduct, 	such 	as . . . continued
use . . . following 	the 	notifications, 	can 	be 	sufficient 	to
manifest 	acceptance 	of 	an 	offer 	or 	acquiescence 	in 	a
modification.”).
In accordance with the Provider Manual’s amendment provision,
Caremark 	provided 	notice 	of 	the 	most 	recent 	amendments 	to 	the
Provider 	Manual 	by 	delivering 	a 	copy 	of 	the 	2024 	Provider 	Manual
to Waterfront on October 2, 2023, and by informing Waterfront that
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the 	2024 	Provider 	Manual 	would 	be 	effective 	on 	January 	1, 	2024.
Petersen Decl., ECF No. 39-1, at ¶ 15. 	Waterfront manifested its
assent 	to 	the 	amended 	terms 	by 	submitting 	numerous 	claims 	to
Caremark 	since 	the 	amended 	terms 	became 	effective 	on 	January 	1,
2024. 	See id. 	Waterfront is thus bound by the current version of
the 	Provider 	Manual, 	including 	the 	Arbitration 	Agreement, 	which
requires “[a]ny dispute, claim or controversy between [Waterfront]
and 	Caremark . . . including . . . disputes 	in 	connection 	with,
arising out of, or relating in any way to, the Provider Agreement
or 	to 	[Waterfront’s] 	participation 	in 	one 	or 	more 	Caremark
networks,” 	to 	be 	resolved 	through 	arbitration. 	2024 	Provider
Manual, 	ECF 	No. 	39-4, 	at 	95. 	The 	arbitration 	agreement 	purports
to 	cover 	Waterfront’s 	claims, 	so 	arbitration 	is 	compelled. 	For
all of these reasons, the second Adkins factor is satisfied.
3. 	The 	arbitrator 	must 	decide 	other 	threshold 	issues
of 	arbitrability, 	including 	scope 	and
unconscionability.
As 	discussed 	above, 	“parties 	can 	agree 	to 	arbitrate 	gateway
questions of arbitrability, such as whether the parties have agreed
to 	arbitrate 	or 	whether 	their 	agreement 	covers 	a 	particular
controversy[.]” 	Galloway, 	2023 	WL 	1858387, 	at 	*1. 	The 	parties
did so here. 	The arbitration agreement delegates threshold issues
of 	arbitrability 	to 	the 	arbitrator 	in 	two 	ways: 	(1) 	through 	an
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express 	delegation 	clause, 	and 	(2) 	through 	incorporation 	of 	JAMS
Comprehensive Arbitration Rules and Procedures (“JAMS Rules”).
First, 	the 	arbitration 	agreement 	contains 	the 	following
delegation clause that constitutes clear and unmistakable evidence
of 	the 	parties’ 	intent 	to 	arbitrate 	arbitrability: 	“The
arbitrator(s) 	shall 	have 	exclusive 	authority 	to 	resolve 	any
dispute 	relating 	to 	the 	interpretation, 	applicability,
enforceability, 	or 	formation 	of 	the 	agreement 	to 	arbitrate
including, 	but 	not 	limited 	to, 	any 	claim 	that 	all 	or 	part 	of 	the
agreement to arbitrate is void or voidable for any reason.” 	2024
Provider 	Manual, 	ECF 	No. 	39-4, 	at 	95. 	The 	2024 	Provider 	Manual
also 	states 	that 	“any 	disputes 	regarding 	the 	interpretation,
validity, scope, or applicability of this agreement to arbitrate,
will be exclusively settled by arbitration.” 	Id. 	Both the Supreme
Court and the Fourth Circuit have held that substantially similar
language is sufficient to delegate issues of arbitrability to the
arbitrator. 	See Rent-A-Ctr., West, Inc. v. Jackson, 561 U.S. 63,
66 	(2010) 	(enforcing 	delegation 	clause 	providing 	that 	“[t]he
Arbitrator, and not any federal, state, or local court or agency,
shall have exclusive authority to resolve any dispute relating to
the interpretation, applicability, enforceability or formation of
this Agreement including, but not limited to any claim that all or
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any 	part 	of 	this 	Agreement 	is 	void 	or 	voidable”); 	Modern
Perfection, LLC v. Bank of Am., N.A., 126 F.4th 235, 238 (4th Cir.
2025) 	(enforcing 	delegation 	clause 	providing 	that 	“[t]he
arbitrator . . . will 	decide 	questions 	of 	law 	and
fact[,] . . . includ[ing] 	the 	applicability 	of 	this 	Resolving
Claims Section and the validity of the deposit agreement”); Novic
v. 	Credit 	One 	Bank, 	Nat’l 	Ass’n, 	757 	F. 	App’x 	235, 	238–39 	(4th
Cir. 	2019) 	(enforcing 	delegation 	clause 	providing 	that 	“[c]laims
subject 	to 	arbitration 	include . . . the 	application,
enforceability 	or 	interpretation 	of 	[the 	cardholder 	agreement],
including 	this 	arbitration 	provision”). 	The 	same 	is 	true 	here:
the 	delegation 	clause 	requires 	the 	arbitrator, 	rather 	than 	this
Court, 	to 	determine 	whether 	Waterfront’s 	claims 	fall 	within 	the
scope of the arbitration agreement.
Second, 	the 	arbitration 	agreement 	also 	incorporates 	JAMS
Rules. 	See 	2024 	Provider 	Manual, 	ECF 	No. 	39-4, 	at 	95 	(“Unless
otherwise 	agreed 	to 	in 	writing 	by 	the 	parties, 	the 	arbitration
shall 	be 	administered 	by 	JAMS 	pursuant 	to 	its 	then 	applicable
Comprehensive 	Arbitration 	Rules 	and 	Procedures 	(‘JAMS 	Rules’)
including 	the 	rule 	governing 	Emergency 	Relief 	Procedures
(available 	from 	JAMS)”). 	In 	the 	Fourth 	Circuit, 	“the 	explicit
incorporation 	of 	JAMS 	Rules 	serves 	as 	‘clear 	and 	unmistakable’
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evidence 	of 	the 	parties’ 	intent 	to 	arbitrate 	arbitrability.”
Simply Wireless, Inc. v. T-Mobile US, Inc., 877 F.3d 522, 528 (4th
Cir. 2017) (abrogated on other grounds). 	Thus, the incorporation
of JAMS Rules provides an additional basis for referring any issues
of arbitrability to the arbitrator.
In 	addition, 	as 	explained 	above, 	the 	delegation 	clause
requires 	the 	arbitrator 	to 	resolve 	“any 	dispute 	relating 	to 	the
interpretation, applicability, enforceability, or formation of the
agreement 	to 	arbitrate 	including, 	but 	not 	limited 	to, 	any 	claim
that all or part of the agreement to arbitrate is void or voidable
for any reason.” 	2024 Provider Manual, ECF No. 39-4, at 95. 	Under
Arizona 	law, 	a 	claim 	of 	unconscionability 	is 	a 	challenge 	to 	the
contract’s 	enforceability. 	See, 	e.g., 	Rizzio 	v. 	Surpass 	Senior
Living LLC, 492 P.3d 1031, 1034 (Ariz. 2021). 	Thus, the delegation
clause mandates that the arbitrator, rather than this Court, must
resolve 	any 	claim 	that 	the 	arbitration 	agreement 	is
unconscionable.
Waterfront 	argues 	that 	the 	delegation 	clause 	is
“unenforceable for the same reasons as the arbitration provisions
and 	choice 	of 	law 	provisions 	are 	unenforceable”: 	because 	they
“operate 	in 	tandem 	with 	choice 	of 	law 	provisions 	as 	an
unenforceable 	prospective 	waiver 	of 	Waterfront’s . . . rights”;
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because they “fundamentally violate West Virginia public policy”;
and 	because 	they 	are 	“procedurally 	and 	substantively
unconscionable.” 	Omnibus 	Resp., 	ECF 	No. 	57, 	at 	16. 	The 	Supreme
Court 	has 	explained 	that 	a 	party 	challenging 	a 	delegation 	clause
on the same ground as other provisions of an arbitration agreement
must 	explain 	how 	those 	other 	provisions 	“as 	applied 	to 	the
delegation 	provision 	render[] 	that 	provision 	unconscionable[.]”
Rent-A-Ctr., 	561 	U.S. 	at 	74 	(emphasis 	removed); 	see 	also 	Modern
Perfection, 	126 	F.4th 	at 	243 	(“[A] 	party 	seeking 	to 	evade 	a
delegation 	clause’s 	application 	must 	assert — and 	ultimately
prove — that there is some defect that ‘render[s] that provision’
illegal 	or 	otherwise 	unenforceable.”) 	(citations 	and 	emphasis
omitted). 	Here, the Court finds that, like the plaintiff in Rent-
A-Center, 	Waterfront 	does 	not 	explain 	how 	its 	prospective 	waiver
argument or other arguments apply to the delegation clause itself.
Waterfront 	raises 	no 	specific, 	substantive 	challenge 	to 	the
delegation 	clause, 	so 	the 	Court 	must 	compel 	arbitration, 	leaving
any arbitrability issues to the arbitrator. 	See Harris v. Equifax
Info. 	Servs., 	No. 	2:18-cv-00558, 	2019 	WL 	1714218, 	at 	*4 	(S.D. 	W.
Va. 	Apr. 	17, 	2019) 	(stating 	that 	a 	challenge 	to 	a 	delegation
provision 	“must 	be 	to 	the 	delegation 	provision 	specifically 	and
not the arbitration agreement as a whole”) (citation omitted).
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For 	all 	of 	these 	reasons, 	the 	arbitrator 	must 	determine
questions of arbitrability, including whether Waterfront’s claims
fall within the scope of the arbitration agreement and any question
of unconscionability.
B. 	Optumrx’s Motions [ECF Nos. 45, 89]
Optumrx 	and 	Waterfront 	are 	parties 	to 	two 	contracts 	with
arbitration 	provisions: 	the 	“Manual” 	and 	the 	“Elevate 	PNA.” 	The
“Manual” 	contains 	a 	section 	entitled 	“Alternative 	Dispute
Resolution and Arbitration” that requires arbitration of “any and
all Disputes,” which are defined as “any and all issues, disputes,
and/or 	controversies 	between 	the 	parties, 	including, 	but 	not
limited 	to 	all 	disputes 	relating 	in 	any 	way 	to 	the 	parties’
relationship, 	the 	terms 	of 	the 	Provider 	Network
Agreement . . . and/or 	or 	this 	[Manual], 	and 	the 	Pharmacy
Provider’s 	status 	in 	the 	Administrator’s 	network.” 	See 	2025
Pharmacy 	Provider 	Manual, 	ECF 	No. 	46-20, 	at 	126. 	The 	Manual
continues, 	“For 	further 	avoidance 	of 	doubt, 	all
Disputes — including 	Disputes 	regarding 	termination 	hereof 	or
nonrenewal 	hereof 	. 	. 	. — are 	subject 	to 	the 	arbitration 	process
described herein.” 	Id. at 127. 	The Manual’s arbitration agreement
also 	contains 	a 	delegation 	clause. 	Under 	that 	clause, 	“the
arbitrator(s) 	shall 	decide 	any 	and 	all 	questions 	regarding
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arbitrability 	or 	the 	formation, 	scope, 	validity, 	and/or
interpretation of the parties’ agreement to arbitrate.” 	Id.
The 	Elevate 	PNA 	was 	amended, 	effective 	April 	1, 	2025. 	See
2025 Amendment to PNA, ECF No. 46-22. 	As amended, the Elevate PNA
contains 	a 	provision, 	found 	in 	the 	section 	entitled 	“Dispute
Resolution,” 	requiring 	the 	binding 	arbitration 	of 	“Disputes,”
which 	are 	defined 	as 	“any 	and 	all 	issues, 	disputes, 	and/or
controversies between the parties, including, but not limited to,
all 	disputes 	relating 	to 	the 	parties’ 	relationship, 	the 	terms 	of
this 	Agreement 	and/or 	Pharmacy 	Manual, 	and 	the 	Pharmacy’s 	status
in 	the 	Administrator’s 	network.” 	Id. 	§ 	10.1. 	This 	arbitration
agreement 	is 	applicable 	“to 	any 	and 	all 	Disputes 	whenever 	they
arise or arose, including, past, present and future Disputes except
for 	any 	Disputes 	for 	which 	either 	party 	has 	already 	provided
notice.” 	Id. 	The 	Elevate 	PNA 	also 	has 	a 	delegation 	clause
stating, 	in 	bold 	print, 	“For 	the 	avoidance 	of 	doubt, 	the
arbitrator(s) 	shall 	decide 	questions 	regarding 	arbitrability 	or
the 	scope, 	enforceability 	and/or 	interpretation 	of 	the 	parties’
agreement to arbitrate . . . .” 	Id. § 10.2. 	The Elevate PNA has
a 	California 	choice-of-law 	provision. 	See 	Elevate 	PNA, 	ECF 	No.
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46-21, 	at 	§ 	11.11. 	Accordingly, 	California 	law 	applies 	to 	the
determination of whether Waterfront’s claims must be arbitrated. 2
The 	arbitration 	provision 	has 	one 	carveout 	to 	its
retroactivity: where notice was provided before the amendment went
into 	effect. 	Waterfront 	argues 	that 	it 	notified 	Optumrx 	that 	it
intended 	to 	file 	a 	claim 	before 	the 	arbitration 	clause 	was
implemented. 	Optumrx 	argus 	that 	Waterfront 	did 	not 	give 	notice
before that time. 	Optumrx contends that Waterfront sent notice to
Elevate, not to Optumrx. 	Elevate is a PSAO for Optumrx. 	The PNA
includes a notice provision:
All 	notices, 	requests, 	consents, 	demands 	and
other communications hereunder (collectively,
“Notices”) 	shall 	be 	in 	writing, 	addressed 	to
the 	receiving 	party’s 	address 	(or, 	at
Administrator’s 	sole 	option 	and 	solely 	for
Notices 	sent 	by 	Administrator, 	Company’s
facsimile 	number 	or 	email 	address) 	as 	set
forth 	below 	or 	to 	such 	other 	address 	(or, 	at
Administrator’s 	sole 	option 	and 	solely 	for
Notices 	sent 	by 	Administrator, 	Company’s
facsimile number or email address) as a party
may designate by providing notice pursuant to
this 	section, 	and 	either 	(i) 	delivered 	by
hand, 	(ii) 	went 	by 	a 	national 	recognized
overnight courier, (iii) sent by registered or
certified 	mail, 	return 	receipt 	requested,
postage 	prepaid, 	(iv) 	solely 	with 	respect 	to
Notices 	sent 	by 	Administrator, 	sent 	by
facsimile 	transmission 	or 	(v) 	solely 	with
respect to Notice sent by Administrator, sent
by email.
2 See note 1, supra.
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Elevate PNA, ECF No. 46-21, at § 11.4. 	The filing of this lawsuit
does 	not 	comply 	with 	it. 	It 	appears 	undisputed 	that 	Optumrx 	was
not 	served 	until 	April 	3 	or 	4 	with 	the 	required 	notice, 	so 	the
carveout to retroactivity does not apply to Waterfront.
Here, 	applying 	the 	Adkins 	factors, 	they 	are 	all 	satisfied,
and 	arbitration 	is 	appropriate. 	The 	first 	factor 	is 	satisfied
because 	a 	dispute 	exists 	between 	the 	parties. 	This 	is, 	again,
evidenced 	by 	Waterfront’s 	filing 	of 	the 	amended 	complaint. 	See
May, 	2012 	WL 	3028467, 	at 	*8. 	The 	third 	factor 	is 	also 	satisfied
because the parties are citizens of different states. 	The fourth
factor 	is 	satisfied 	because 	Waterfront 	has 	refused 	to 	arbitrate,
which, again, is evidenced by the filing of the amended complaint.
See id. 	The only remaining requirement — a written agreement that
includes 	an 	arbitration 	provision 	that 	purports 	to 	cover 	the
dispute — is also satisfied for the reasons discussed herein.
1. 	The Manual is binding on Waterfront.
The 	Manual 	and 	its 	arbitration 	agreement 	are 	binding 	on
Waterfront 	for 	three 	reasons. 	First, 	the 	Manual 	is 	incorporated
into the Elevate PNA, of which Waterfront knowingly availed itself
when 	it 	joined 	Elevate. 	See 	Jones 	Decl., 	ECF 	No. 	46-1, 	at 	¶ 	11.
The original and amended Elevate PNA provide that the PNA governs
if there is a conflict with the Manual. 	See Elevate PNA, ECF No.
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46-21, at § 11.1; 2025 Amendment to PNA, ECF No. 46-22, at § 11.1.
There 	is 	no 	conflict, 	however, 	between 	the 	Elevate 	PNA 	and 	the
Manual 	pertinent 	to 	the 	issues 	raised 	by 	Optumrx’s 	motion. 	As
shown above, as in the Manual, the in-force Elevate PNA Amendment
also 	broadly 	requires 	arbitration 	of 	disputes 	arising 	from 	the
parties’ relationship.
Second, 	Waterfront 	is 	bound 	to 	the 	Manual’s 	arbitration
agreement 	under 	the 	“direct 	benefits 	estoppel” 	doctrine. 	Bayles
v. Evans, 842 S.E.2d 235, 245–46 (W. Va. 2020) (“Courts often say
that 	a 	nonsignatory 	is 	estopped 	from 	refusing 	to 	comply 	with 	an
arbitration 	clause 	when 	it 	receives 	a 	direct 	benefit 	from 	a
contract containing an arbitration clause.”) (citations omitted).
Direct 	benefits 	estoppel 	applies 	to 	“non-signatories 	who, 	during
the life of the contract, have embraced the contract despite their
non-signatory 	status 	but 	then, 	during 	litigation, 	attempt 	to
repudiate the arbitration clause in the contract.” 	Id. (citation
omitted).
Here, 	Waterfront 	knowingly 	sought 	and 	obtained 	direct
benefits 	from 	the 	Manual. 	For 	years, 	including 	after 	receipt 	of
notices 	of 	Manual 	updates 	informing 	Waterfront 	of 	the 	Manual’s
arbitration 	agreement, 	Waterfront 	filled 	thousands 	of
prescriptions 	for 	patients 	in 	Optumrx’s 	network 	and 	submitted
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related claims for reimbursement for which Optumrx paid Waterfront
hundreds 	of 	thousands 	of 	dollars. 	Jones 	Decl., 	ECF 	No. 	46-1, 	at
¶ 	15. 	Waterfront 	was 	able 	to 	do 	so 	only 	as 	a 	result 	of 	agreeing
to 	participate 	in 	Optumrx’s 	network 	pursuant 	to 	the 	Manual. 	Id.
¶ 10. 	Waterfront cannot benefit from the terms of the Manual for
all this time, while simultaneously avoiding arbitration under the
terms 	of 	the 	very 	same 	Manual. 	See, 	e.g., 	HealthPro 	Pharm. 	&
Wellness Ctr. v. OptumRx Inc., No. 3:24-cv-01878-N, 2025 WL 307696,
at *2 (N.D. Tex. Jan. 27, 2025) (applying direct benefits estoppel
under California law to a network pharmacy’s claims against Optumrx
to compel arbitration of pharmacy’s claims).
Third, the doctrine of ratification mandates the same result.
See 	Hammerl 	v. 	Acer 	Europe, 	S.A., 	No. 	C 	08-4754 	JF 	(RS), 	2009 	WL
30130, 	at 	*9 	(N.D. 	Cal. 	Jan. 	5, 	2009) 	(per 	California 	law,
ratification mandates that “a corporation is estopped from denying
the 	validity 	or 	enforceability 	of 	a 	contract, 	after 	accepting
performance 	and 	making 	payment 	on 	account 	thereof”). 	Waterfront
received 	multiple 	notices 	of 	updates 	to 	the 	Manual, 	specifically
notifying it of the Manual’s arbitration agreement, yet continued
to 	submit 	claims, 	receiving 	the 	benefit 	of 	participating 	in
Optumrx’s 	network, 	subject 	to 	the 	terms 	of 	the 	Manual. 	Jones
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Decl., 	ECF 	No. 	46-1, 	at 	¶¶ 	14, 	19. 	Waterfront 	has 	ratified 	the
Manual and its arbitration agreement.
2. 	The 	PNA’s 	broad 	arbitration 	agreement 	is 	also
binding on Waterfront.
By 	affiliating 	with 	the 	Elevate 	PSAO 	to 	join 	the 	Optumrx
network, 	Waterfront 	availed 	itself 	of 	the 	contracts 	Elevate 	has
negotiated 	and 	will 	negotiate 	with 	PBMs 	on 	behalf 	of 	itself 	and
its constituent pharmacies. 	Id. ¶¶ 8, 10. 	Appointment of a PSAO
as a pharmacy’s contracting agent is standard in the industry, id.
¶ 	8, 	and 	courts 	regularly 	enforce 	against 	pharmacy-PSAO-members
contracts entered into by the PSAOs representing those pharmacies.
See, e.g., Mabe v. OptumRx, No. 3:17-CV-01102, 2024 WL 3498353, at
*10 (M.D. Pa. July 22, 2024) (applying California law and holding
that 	the 	“arbitration 	provisions 	in 	the 	Provider 	Agreements
entered 	into 	by 	PSAOs 	are 	enforceable 	against 	each 	Plaintiff
contracted 	with 	a 	PSAO”); 	AAMH 	Pharm. 	Inc. 	v. 	OptumRx 	Inc., 	No.
56-2018-00515296-CU-AT-VTA, 	2019 	WL 	13152208, 	at 	*5 	(Cal. 	Super.
Ct. 	Apr. 	22, 	2019) 	(“each 	of 	the 	Pharmacy 	Plaintiffs 	is 	bound 	by
the 	respective 	[Provider] 	Agreements, 	including 	the 	binding
arbitration provisions contained therein,” because PSAOs “entered
into [Provider] Agreements on behalf of their respective Pharmacy
Plaintiff 	principals”). 	One 	of 	the 	contracts 	that 	Elevate
negotiated 	with 	Optumrx 	on 	behalf 	of 	Waterfront 	was 	the 	Elevate
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PNA 	and 	its 	Amendment. 	Jones 	Decl., 	ECF 	No. 	46-1, 	at 	¶ 	11.
Waterfront 	submitted 	claims 	and 	received 	reimbursement 	from
Optumrx 	under 	the 	terms 	of 	the 	Elevate 	PNA 	and 	Amendment. 	Id. 	¶
15). 	Moreover, 	the 	PNA 	was 	executed 	“on 	behalf 	of” 	Elevate 	and
each of its member pharmacies. 	Elevate PNA, ECF No. 46-21, at 1.
Thus, 	when 	Waterfront 	joined 	Elevate, 	it 	became 	one 	of 	the
pharmacies 	for 	whose 	benefit 	and 	on 	whose 	behalf 	the 	PNA 	was
executed. 	Elevate 	represented 	in 	its 	PNA 	that 	it 	“has 	the
authority” 	to 	enter 	into 	the 	PNA 	as 	Waterfront’s 	agent, 	and 	that
Waterfront 	agreed 	to 	be 	bound 	by 	and 	comply 	with 	the 	Elevate 	PNA
and 	Manual. 	Id. 	at 	Recital 	D. 	Accordingly, 	Waterfront 	is 	bound
by the Elevate PNA.
As 	of 	April 	1, 	2025, 	the 	Elevate 	PNA 	has 	had 	a 	broad 	and
retroactive 	arbitration 	agreement. 	The 	arbitration 	agreement 	is
applicable to “any and all Disputes whenever they arise or arose,
including 	past, 	present, 	and 	future 	Disputes 	except 	for 	any
Disputes for which either party has already provided notice,” and
it 	requires 	arbitration 	of 	“any 	and 	all 	issues, 	disputes, 	and/or
controversies between the parties, including, but not limited to,
all 	disputes 	relating 	to 	the 	parties’ 	relationship[.]” 	2025
Amendment 	to 	PNA, 	ECF 	No. 	46-22, 	at 	§ 	10.1. 	That 	arbitration
agreement purports to cover Waterfront’s claims, so arbitration is
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compelled. 	For all of these reasons, the second Adkins factor is
satisfied.
3. 	The 	arbitrator 	must 	decide 	other 	threshold 	issues
of 	arbitrability, 	including 	scope 	and
unconscionability.
As 	discussed 	above, 	“parties 	can 	agree 	to 	arbitrate 	gateway
questions of arbitrability, such as whether the parties have agreed
to 	arbitrate 	or 	whether 	their 	agreement 	covers 	a 	particular
controversy[.]” 	Galloway, 	2023 	WL 	1858387, 	at 	*1. 	The 	parties
did 	so 	here. 	The 	Manual’s 	delegation 	clause 	expressly 	provides
that 	“the 	arbitrator(s) 	shall 	decide 	any 	and 	all 	questions
regarding arbitrability or the formation, scope, validity, and/or
interpretation of the parties’ agreement to arbitrate.” 	Pharmacy
Provider Manual, ECF No. 46-20, at 127. 	The Elevate PNA Amendment
has 	a 	similar 	delegation 	clause. 	2025 	Amendment 	to 	PNA, 	ECF 	No.
46-22, 	at 	§ 	10.2. 	These 	clauses 	supply 	clear 	and 	unmistakable
evidence 	of 	the 	parties’ 	intent 	to 	delegate 	threshold 	decisions
about 	arbitrability 	of 	Waterfront’s 	claims 	to 	arbitrators. 	Both
the 	Supreme 	Court 	and 	the 	Fourth 	Circuit 	have 	held 	that
substantially similar language is sufficient to delegate issues of
arbitrability to the arbitrator. 	See Rent-A-Ctr., 561 U.S. at 66
(enforcing delegation clause providing that “[t]he Arbitrator, and
not 	any 	federal, 	state, 	or 	local 	court 	or 	agency, 	shall 	have
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exclusive 	authority 	to 	resolve 	any 	dispute 	relating 	to 	the
interpretation, applicability, enforceability or formation of this
Agreement including, but not limited to any claim that all or any
part 	of 	this 	Agreement 	is 	void 	or 	voidable”); 	Modern 	Perfection,
126 F.4th at 238 (enforcing delegation clause providing that “[t]he
arbitrator . . . will 	decide 	questions 	of 	law 	and
fact[,] . . . includ[ing] 	the 	applicability 	of 	this 	Resolving
Claims Section and the validity of the deposit agreement”); Novic,
757 F. App’x at 238–39 (enforcing delegation clause providing that
“[c]laims 	subject 	to 	arbitration 	include . . . the 	application,
enforceability 	or 	interpretation 	of 	[the 	cardholder 	agreement],
including 	this 	arbitration 	provision”). 	The 	same 	is 	true 	here:
the 	delegation 	clause 	requires 	the 	arbitrator, 	rather 	than 	this
Court, 	to 	determine 	whether 	Waterfront’s 	claims 	fall 	within 	the
scope of the arbitration agreement.
The 	Manual’s 	(and 	Elevate 	PNA 	Amendment’s) 	incorporation 	of
the 	AAA 	Rules 	is 	additional 	clear 	and 	unmistakable 	evidence 	of
intent to delegate threshold issues of arbitrability. 	See Pharmacy
Provider Manual, ECF No. 46-20, at 127 (“Any such arbitration shall
be 	administered 	exclusively 	by 	the 	American 	Arbitration
Association 	in 	accordance 	with 	its 	Commercial 	Arbitration 	Rules
and 	Mediation 	Procedures, 	as 	they 	may 	be 	amended 	from 	time-to-
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time.”); 	2025 	Amendment 	to 	PNA, 	ECF 	No. 	46-22, 	at 	§ 	10.2 	(same).
Under those Rules, “[t]he arbitrator shall have the power to rule
on 	his 	or 	her 	own 	jurisdiction, 	including 	any 	objections 	with
respect 	to 	the 	existence, 	scope, 	or 	validity 	of 	the 	arbitration
agreement or to the arbitrability of any claim.” 	See AAA Rule R-
7(a). 	Reference to AAA rules “satisfies the clear and unmistakable
test.” 	House 	v. 	Rent-A-Ctr. 	Franchising 	Int’l, 	Inc., 	No. 	3:16-
06654, 2016 WL 7394552, at *6 (S.D.W. Va. Dec. 21, 2016) (citation
omitted).
As 	discussed 	above, 	the 	Supreme 	Court 	has 	explained 	that 	a
party challenging a delegation clause on the same ground as other
provisions of an arbitration agreement must explain how those other
provisions 	“as 	applied 	to 	the 	delegation 	provision 	render[] 	that
provision 	unconscionable[.]” 	Rent-A-Ctr., 	561 	U.S. 	at 	74
(emphasis 	removed); 	see 	also 	Modern 	Perfection, 	126 	F.4th 	at 	243
(“[A] 	party 	seeking 	to 	evade 	a 	delegation 	clause’s 	application
must 	assert — and 	ultimately 	prove — that 	there 	is 	some 	defect
that 	‘render[s] 	that 	provision’ 	illegal 	or 	otherwise
unenforceable.”) (citations and emphasis omitted). 	Waterfront has
not 	done 	so 	here. 	For 	the 	same 	reasons 	as 	discussed 	above 	with
respect 	to 	the 	Caremark 	delegation 	clause, 	the 	Court 	finds 	that,
like 	the 	plaintiff 	in 	Rent-A-Center, 	Waterfront 	raises 	no
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specific, substantive challenge to the Optumrx delegation clause,
so 	the 	Court 	must 	compel 	arbitration, 	leaving 	any 	arbitrability
issues 	to 	the 	arbitrator. 	See 	Harris, 	2019 	WL 	1714218, 	at 	*4
(stating 	that 	a 	challenge 	to 	a 	delegation 	provision 	“must 	be 	to
the 	delegation 	provision 	specifically 	and 	not 	the 	arbitration
agreement as a whole”) (citation omitted).
For 	all 	of 	these 	reasons, 	the 	arbitrator 	must 	determine
questions of arbitrability, including whether Waterfront’s claims
fall within the scope of the arbitration agreement and any question
of unconscionability.
V. 	MOTION TO SEVER AND TRANSFER
Relying 	on 	two 	forum 	selection 	clauses, 	Express 	Scripts 	has
moved 	to 	sever 	the 	claims 	against 	it 	and 	transfer 	them 	to 	the
United States District Court for the Eastern District of Missouri.
See 	ECF 	No. 	80. 	In 	the 	alternative, 	Express 	Scripts 	moves 	the
Court to dismiss Waterfront’s complaint because there is no private
right of action. 3
Waterfront 	and 	Express 	Scripts 	are 	parties 	to 	a 	“Provider
Agreement.” 	The 	Provider 	Agreement 	includes 	a 	forum 	selection
clause:
3 Express Scripts previously filed a motion to dismiss for the same reason,
before raising the issue of the forum selection clauses. 	See ECF No. 50.
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All litigation between the parties arising out
of or related in any way to the interpretation
or 	performance 	of 	the 	Agreement 	shall 	be
litigated 	in 	the 	U.S. 	District 	Court 	for 	the
Eastern District of Missouri, or, as to those
lawsuits 	to 	which 	the 	Federal 	Court 	lacks
jurisdiction, 	before 	a 	court 	located 	in 	St.
Louis 	County, 	Missouri. 	The 	parties 	agree
that 	Claims 	shall 	not 	be 	consolidated 	or
coordinated 	in 	any 	action 	with 	the 	Claim 	of
any other individual or entity . . . .
Provider 	Agreement, 	ECF 	No. 	81-1, 	at 	§ 	7.12. 	The 	Provider
Agreement 	incorporates 	the 	Express 	Scripts 	Provider 	Manual. 	See
id. 	§ 	7.3 	(stating 	that 	“[t]his 	Agreement, 	including
its . . . Provider Manual, . . . constitutes the entire agreement
of 	the 	parties 	with 	respect 	to 	the 	subject 	matter 	herein”). 	The
Provider 	Agreement 	instructs 	Waterfront 	as 	to 	where 	the 	Provider
Manual 	is 	accessible 	to 	it 	online. 	See 	id. 	§ 	1.7. 	The 	Provider
Manual likewise contains a forum selection clause:
All litigation between the parties arising out
of or related in any way to the interpretation
or performance of the Provider Agreement shall
be 	litigated 	in 	the 	U.S. 	District 	Court 	for
the 	Eastern 	District 	of 	Missouri, 	or, 	as 	to
those 	lawsuits 	to 	which 	the 	Federal 	Court
lacks jurisdiction, before a court located in
St. Louis County, Missouri. 	The parties agree
that 	Claims 	shall 	not 	be 	consolidated 	or
coordinated 	in 	any 	action 	with 	the 	Claim 	of
any other individual or entity.
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See 	Provider 	Manual, 	ECF 	No. 	81-1, 	at 	133. 	The 	Court 	will 	refer
to 	the 	Provider 	Agreement 	and 	Provider 	Manual 	together 	as 	the
“Contract.”
Under 	28 	U.S.C. 	§ 	1404(a), 	“For 	the 	convenience 	of 	parties
and 	witnesses, 	in 	the 	interest 	of 	justice, 	a 	district 	court 	may
transfer any civil action to any other district or division where
it might have been brought or to any district or division to which
all 	parties 	have 	consented.” 	“When 	the 	parties 	have 	agreed 	to 	a
valid 	forum 	selection 	clause, 	a 	district 	court 	should 	ordinarily
transfer 	the 	case 	to 	the 	forum 	specified 	in 	that 	clause,” 	and
“[o]nly 	under 	extraordinary 	circumstances 	unrelated 	to 	the
convenience 	of 	the 	parties 	should 	a 	§ 	1404(a) 	motion 	be 	denied.”
Atlantic 	Marine 	Constr. 	Co., 	Inc. 	v. 	U.S. 	Dist. 	Ct. 	for 	Western
Dist. 	of 	Texas, 	571 	U.S. 	49, 	62 	(2013). 	The 	Supreme 	Court
explained,
The 	enforcement 	of 	valid 	forum-selection
clauses, 	bargained 	for 	by 	the 	parties,
protects 	their 	legitimate 	expectations 	and
furthers 	vital 	interests 	of 	the 	justice
system. . . . 	For 	that 	reason, 	and 	because
the overarching consideration under § 1404(a)
is whether transfer would promote the interest
of 	justice, 	a 	valid 	forum-selection 	clause
[should 	be] 	given 	controlling 	weight 	in 	all
but the most exceptional cases.
Id. 	at 	63 	(citation 	and 	internal 	quotation 	marks 	omitted).
Waterfront challenges the forum-selection clauses by arguing that
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Express 	Scripts 	has 	dominant 	bargaining 	power 	over 	Waterfront,
that 	they 	deprive 	Waterfront 	of 	its 	day 	in 	Court, 	and 	that 	they
are overwhelmingly unfair. 	These arguments have no merit.
A. 	The forum selection clauses apply to this dispute.
The 	forum 	selection 	clauses 	apply 	to 	“[a]ll 	litigation
between 	the 	parties 	arising 	out 	of 	or 	related 	in 	any 	way 	to 	the
interpretation 	or 	performance 	of 	the” 	respective 	agreement.
Provider Agreement, ECF No. 81-1, at § 7.12; Provider Manual, ECF
No. 	81-1, 	at 	133. 	Waterfront’s 	entire 	relationship 	with 	Express
Scripts 	arises 	from 	the 	Contract, 	pursuant 	to 	which 	Waterfront
agreed to participate in Express Scripts’s pharmacy network under
specific payment terms and other terms and conditions. 	Waterfront
acknowledges that its claims are related to the performance of the
Contract, as it alleges that Express Scripts uses its Contract to
pay Waterfront less than required under West Virginia law. 	Because
the 	Contract 	governs 	the 	terms 	of 	payment 	between 	Waterfront 	and
Express Scripts, Waterfront’s claim — that the Act requires it to
be paid more — is related to that Contract.
B. 	The 	forum 	selection 	clauses 	are 	dispositive 	under 	28
U.S.C. § 1404(a).
A 	forum 	selection 	clause 	adjusts 	this 	Court’s 	analysis 	on 	a
motion 	to 	transfer 	under 	§ 	1404(a). 	Though 	in 	“the 	typical 	case
not 	involving 	a 	forum-selection 	clause, 	a 	district 	court
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considering 	a 	§ 	1404(a) 	motion” 	evaluates 	the 	convenience 	of 	the
parties 	and 	other 	“private 	interest” 	factors, 	the 	“calculus
changes” in the face of a forum selection clause in several ways.
Atlantic Marine, 571 U.S. at 62–63. 	“First, the plaintiff’s choice
of 	forum 	merits 	no 	weight.” 	Id. 	“Second, 	a 	court 	evaluating 	a
defendant’s § 1404(a) motion to transfer based on a forum-selection
clause 	should 	not 	consider 	arguments 	about 	the 	parties’ 	private
interests. 	. 	. 	. 	A 	court 	accordingly 	must 	deem 	the 	private-
interest 	factors 	to 	weigh 	entirely 	in 	favor 	of 	the 	preselected
forum.” 	Id. at 64.
Mandatory 	forum 	selection 	clauses 	have 	a 	“presumption 	of
enforceability.” 	BAE 	Sys. 	Tech. 	Sol. 	& 	Servs., 	Inc. 	v. 	Republic
of Korea’s Def. Acquisition Program Admin., 884 F.3d 463, 470 (4th
Cir. 	2018). 	“A 	mandatory 	forum 	selection 	clause 	is 	‘prima 	facie
valid 	and 	should 	be 	enforced 	unless 	enforcement 	is 	shown 	by 	the
resisting 	party 	to 	be 	“unreasonable” 	under 	the 	circumstances.’”
Sauvageot v. State Farm Mut. Auto. Ins. Co., No. 5:11cv13, 2011 WL
2680508, 	at 	*2 	(N.D.W. 	Va. 	July 	8, 	2011) 	(citing 	M/S 	Bremen 	v.
Zapata Off–Shore Co., 407 U.S. 1, 10 (1972)). 	“In order to avoid
enforcement 	of 	a 	forum-selection 	clause, 	the 	challenging 	party
must make ‘a strong showing that the clause should be set aside.’”
Adkins v. Deangelo Brothers, LLC, No. 3:15-13151, 2016 WL 3982529,
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at 	*3 	(S.D.W. 	Va. 	July 	22, 	2016) 	(citing 	M/S 	Bremen, 	407 	U.S. 	at
15).
Waterfront and Express Scripts contractually agreed that they
would litigate their disputes in the Eastern District of Missouri.
This forum selection must be given “controlling weight in all but
the most exceptional circumstances.” 	Atlantic Marine, 571 U.S. at
51 	(citation 	omitted). 	Here, 	Waterfront 	does 	not 	establish 	that
“exceptional” circumstances preclude enforcement of the agreement.
C. 	Waterfront 	cannot 	meet 	its 	burden 	to 	overcome 	the
presumption 	that 	the 	forum 	selection 	clauses 	are 	valid
and should be enforced.
“[A]s 	the 	party 	defying 	the 	forum-selection 	clause,”
Waterfront bears the burden of “establishing that transfer to the
forum for which the parties bargained is unwarranted.” 	Id. at 63.
This 	requires 	that 	“the 	party 	acting 	in 	violation 	of 	the 	forum
selection 	clause 	. 	. 	. 	show[] 	that 	public-interest 	factors
overwhelmingly disfavor a transfer.” 	Id. at 67. 	Forum selection
clauses 	are 	only 	unreasonable 	if 	a 	plaintiff 	establishes 	the
following:
(1) 	their 	formation 	was 	induced 	by 	fraud 	or
overreaching; (2) the complaining party “will
for all practical purposes be deprived of his
day 	in 	court” 	because 	of 	the 	grave
inconvenience 	or 	unfairness 	of 	the 	selected
forum; 	(3) 	the 	fundamental 	unfairness 	of 	the
chosen 	law 	may 	deprive 	the 	plaintiff 	of 	a
remedy; 	or 	(4) 	their 	enforcement 	would
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contravene a strong public policy of the forum
state.
Sauvageot, 2011 WL 2680508, at *2 (citations omitted).
First, there is no indication that the forum selection clauses
were 	induced 	by 	fraud 	or 	overreaching. 	Waterfront’s 	allegation
that 	the 	contract 	itself 	is 	“adhesive” 	is 	insufficient. 	See
Turfworthy, LLC v. Dr. Karl Wetekam & Co. KG, 26 F. Supp. 3d 496,
508 	(M.D.N.C. 	2014) 	(“[A]n 	inability 	or 	failure 	to 	negotiate
concerning 	the 	disputed 	clause 	does 	not 	establish 	‘overreaching’
by the drafter.”) (citations omitted).
Second, 	Waterfront 	cannot 	show 	that 	it 	will 	be 	deprived 	of
its 	day 	in 	court. 	To 	satisfy 	this 	factor, 	“the 	inquiry 	is 	not
whether 	[plaintiff] 	will 	be 	deprived 	of 	[its] 	day 	in 	[its]
preferred forum, but whether [it] will be deprived of [its] day in
any 	forum 	because 	of 	inconvenience 	or 	unfairness.” 	Brooks-
Williams 	v. 	Keybank, 	No. 	WDQ-15-559, 	2015 	WL 	9255327, 	at 	*6 	(D.
Md. 	Dec. 	17, 	2015) 	(emphasis 	and 	citation 	omitted). 	The 	Eastern
District 	of 	Missouri 	is 	not 	an 	unreasonable 	or 	illogical 	forum,
especially 	given 	that 	Express 	Scripts 	has 	its 	principal 	place 	of
business 	in 	Missouri. 	See 	Am. 	Compl., 	ECF 	No. 	76, 	at 	¶ 	3; 	see
also Sheldon v. Hart, No. 5:09cv51, 2010 WL 114007, at *6 (N.D.W.
Va. 	Jan. 	8, 	2010) 	(noting 	that 	forum 	selection 	clause 	in 	Germany
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was not unreasonable where contracting party’s principal place of
business is in Germany).
Third, 	Waterfront 	cannot 	show 	that 	the 	Missouri 	forum 	will
deprive 	Waterfront 	of 	a 	remedy, 	to 	the 	extent 	it 	is 	entitled 	to
one. 	Federal 	courts 	sitting 	in 	diversity 	regularly 	apply 	other
states’ laws, and there is no reason that a federal court sitting
in 	Missouri 	cannot 	do 	so. 	See 	Sharpe 	v. 	Ally 	Fin., 	Inc., 	No.
3:17cv189-GCM, 	2017 	WL 	5078900, 	at 	*3 	(W.D.N.C. 	Nov. 	3, 	2017)
(enforcing 	forum 	selection 	clause 	where 	“Plaintiff 	has 	not 	shown
how prosecuting this case in [selected forum] would deprive her of
a 	remedy”); 	Brooks-Williams, 	2015 	WL 	9255327, 	at 	*6 	(enforcing
forum selection clause where plaintiff “provides no authority for
her apparent proposition that an Ohio court would decline to hear
her Maryland claims”).
Fourth, the enforcement of the forum selection clauses would
not 	contravene 	a 	strong 	public 	policy 	of 	the 	forum 	state. 	“In
West Virginia, forum selection clauses are not contrary to public
policy.” 	Sauvageot, 2011 WL 2680508, at *3 (citation and internal
quotation marks omitted). 	Rather, “[i]n all but the most unusual
cases, . . . the 	interest 	of 	justice 	is 	served 	by 	holding 	the
parties to their bargain.” 	Greenbrier Hotel Corp. v. Carter Bank
& 	Trust, 	No. 	5:23-cv-00731, 	2024 	WL 	1766653, 	at 	*6 	(S.D.W. 	Va.
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Apr. 	24, 	2024) 	(citation 	and 	internal 	quotation 	marks 	omitted).
Further, 	Missouri 	“has 	an 	interest 	in 	deciding 	a 	controversy
involving 	a 	corporate 	defendant 	located 	there,” 	and 	“courts
routinely 	transfer 	suits 	alleging 	state 	law 	claims 	to 	courts 	in
other states.” 	Brooks-Williams, 2015 WL 9255327, at *8.
To 	the 	extent 	Waterfront 	argues 	that 	the 	prospective 	waiver
doctrine 	applies, 	the 	Court 	disagrees. 	The 	prospective 	waiver
doctrine 	originated 	when 	the 	Supreme 	Court 	wrote 	in 	a 	footnote,
“[I]n 	the 	event 	the 	choice-of-forum 	and 	choice-of-law 	clause
operated 	in 	tandem 	as 	a 	prospective 	waiver 	of 	a 	party’s 	right 	to
pursue statutory remedies . . . , we would have little hesitation
in condemning the agreement as against public policy.” 	Mitsubishi
Motors 	Corp. 	v. 	Soler 	Chrysler-Plymouth, 	Inc., 	473 	U.S. 	614, 	637
n.19 (1985). 	Here, we do not have a complete waiver of statutory
remedies. 	Rather, 	the 	forum-selection 	clauses 	merely 	designate
the forum, which is permissible.
In sum, due to the forum selection clauses, Waterfront cannot
maintain 	its 	claims 	against 	Express 	Scripts 	in 	this 	Court.
Waterfront’s claims against Express Scripts must be transferred to
the Eastern District of Missouri.
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D. 	Severance
Rule 	21 	of 	the 	Federal 	Rules 	of 	Civil 	Procedure 	allows 	the
Court “[o]n motion or on its own . . . [to] sever any claim against
a 	party.” 	Fed. 	R. 	Civ. 	P. 	21. 	The 	district 	court 	has 	“broad
discretion” in determining whether to sever a claim under Rule 21.
See, e.g., Rice v. Sunrise Express, Inc., 209 F.3d 1008, 1016 (7th
Cir. 2000) (citations omitted). 	Here, to effectuate the transfer
of the claims against Express Scripts to Eastern District Missouri,
the Court finds that severance is appropriate.
VI. 	CONCLUSION
For the reasons discussed above, Express Scripts’s motion to
sever 	and 	transfer 	is 	GRANTED 	[ECF 	No. 	80]. 	The 	claims 	against
Express 	Scripts 	are 	SEVERED 	and 	TRANSFERRED 	to 	the 	United 	States
District Court for the Eastern District of Missouri. 	The motions
to compel arbitration are GRANTED [ECF Nos. 39, 45, 89, 90]. 	The
parties 	(Waterfront, 	Caremark, 	and 	Optumrx) 	SHALL 	arbitrate 	this
matter. 	This 	case 	is 	DISMISSED 	and 	STRICKEN 	from 	the 	Court’s
active 	docket. 	See 	Choice 	Hotels 	Int’l, 	Inc. 	v. 	BSR 	Tropicana
Resort, 	Inc., 	252 	F.3d 	707, 	709–10 	(4th 	Cir. 	2001) 	(“[D]ismissal
is 	a 	proper 	remedy 	when 	all 	of 	the 	issues 	presented 	in 	a 	lawsuit
are arbitrable.”). 	All other pending motions are TERMINATED [ECF
Nos. 31, 50].
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It is so ORDERED.
The 	Clerk 	is 	directed 	to 	transmit 	copies 	of 	this 	Memorandum
Opinion 	and 	Order 	to 	counsel 	of 	record 	and 	the 	United 	States
District Court for the Eastern District of Missouri.
DATED: March 31, 2026
____________________________
THOMAS S. KLEEH, CHIEF JUDGE
NORTHERN DISTRICT OF WEST VIRGINIA
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