Angelle

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAFAYETTE DIVISION

DEAN ANGELLE ET AL CASE NO. 6:25-CV-01113

VERSUS JUDGE ROBERT R.

SUMMERHAYS

C V S HEALTH CORP ET AL MAGISTRATE JUDGE CAROL B.

WHITEHURST

REPORT AND RECOMMENDATION

Before the Court is Defendants’ Motion to Compel Arbitration. (Rec. Doc.

10). Plaintiffs opposed the motion (Rec. Doc. 28), and Defendants replied (Rec. Doc.

29). The motion was referred to the undersigned magistrate judge for review, report,

and recommendation in accordance with the provisions of 28 U.S.C. §636 and the

Court’s standing orders. Considering the evidence, the law, and the parties’

arguments, and for the following reasons, the Court recommends that Defendants’

motion be granted.

Facts and Procedural History

Plaintiffs, individually and on behalf of others similarly situated, filed this

putative class action in state court against CVS Health Corp., CVS Pharmacy, Inc.,

Caremark PCS Health LLC (collectively “CVS/Caremark”), Spradley & Spradley,

Inc., Jessee McCormick, Matthew Spradley, and Linda Spradley (collectively “the

Lobbyist Defendants”) asserting claims under Louisiana’s Unfair Trade Practices

Act (LUPTA). (Rec. Doc. 2-1 and 2-21). Plaintiffs’ claims arise from

CVS/Caremark’s alleged June 11, 2025 text messages and emails to thousands of

Louisiana CVS customers urging them to contact their state representatives to vote

against pending legislation that would impact CVS/Caremark. (Rec. Doc. 2-1, ¶4).

Defendants removed the case to this Court in August 2025, asserting

jurisdiction under the Class Action Fairness Act (CAFA). The Court denied

Plaintiffs’ Motion to Remand. (Rec. Doc. 24; 25). The Court now considers

Defendants’ earlier filed motion to compel arbitration, wherein Defendants argue

that Plaintiffs’ claims are subject to mandatory arbitration per the terms of

agreements Plaintiffs accepted in creating online CVS/Caremark accounts. Plaintiffs

oppose the motion on the grounds that CVS/Caremark has not submitted sufficient

evidence that they or other putative class members agreed to the terms requiring

submission of all claims to arbitration.

CVS/Caremark submitted the declaration of senior paralegal, Amanda

Nevins, attesting that pertinent CVS records showed that both Plaintiffs, Dean and

Elizabeth Angelle, created online user accounts on Caremark.com on June 28, 2020.

(Rec. Doc. 10-3, ¶4). In order to create online user accounts, Plaintiffs were required

to enter certain personal information and to check a box confirming that they agreed

1 Plaintiffs filed an amended complaint in state court to assert an additional state law claim

regarding protected health information.

to the Terms and Conditions. The Terms and Conditions, presented via hyperlink to

the full CVS Caremark Term and Conditions, stated:

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/CAREMARK 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/CAREMARK 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.

(Rec. Doc. 10-3, ¶8-9, referencing p. 21 (as written)). Subsequent amendments to

the Caremark Terms and Conditions also included mandatory arbitration provisions.

(Id. at ¶13-14, referencing p. 46-49; 71-75)

Similarly, Plaintiff Elizabeth Angelle created an online account for CVS.com

in December 2021. By creating the account, Elizabeth agreed to CVS Pharmacy

Terms of Use and Privacy Policy. (Id. at ¶15-18). The CVS Terms of Use included

a nearly identical arbitration provision to that of the Caremark Terms and

Conditions. (Id. at ¶18, referencing p. 88-89). Subsequent amendments to the CVS

Terms of Use also included arbitration provisions. (Id. at ¶20-22, referencing e.g. p.

116). CVS/Caremark now seeks to compel compliance with the foregoing arbitration

provisions.

Law and Analysis

I. Choice of Law

“[The Federal Arbitration Act] FAA § 2—the Act’s substantive mandate—

makes written arbitration agreements valid, irrevocable, and enforceable, save upon

such grounds as exist at law or in equity for the revocation of a contract [and] creates

substantive federal law regarding the enforceability of arbitration agreements.”

Crawford Pro. Drugs, Inc. v. CVS Caremark Corp., 748 F.3d 249, 257 (5th Cir.

2014) (cleaned up). However, state contract principles also still apply, as long as the

state rules do not undermine the goals and policies of the FAA. Id. and ASW Allstate

Painting & Const. Co. v. Lexington Ins. Co., 188 F.3d 307, 310 (5th Cir. 1999).

“[P]arties may choose state arbitration rules through a choice-of-law provision.”

ASW, 188 F.3d at 310, citing Volt Information Sciences, Inc. v. Board of Trustees

of the Leland Stanford Junior University, 489 U.S. 468, 477, 109 S.Ct. 1248 (1989).

CVS/Caremark maintains that, per the Caremark and CVS terms requiring

arbitration, New York law governs. (Rec. Doc. 10-3, p. 21; 88). Plaintiffs did not

argue that any other state law should apply, except to the extent they argue the Terms

and Conditions/Terms of Use are not enforceable, as discussed below. Absent a

specific argument that New York law should not apply, the Court shall apply New

York law to issues of contract formation.

II. Arbitrability

The Fifth Circuit applies the following analysis in determining whether to

compel arbitration:

In adjudicating a motion to compel arbitration under the Federal

Arbitration Act, courts begin by determining whether the parties agreed

to arbitrate the dispute. This determination is generally made on the

basis of “ordinary state-law principles that govern the formation of

contracts…This determination depends on two considerations: (1)

whether there is a valid agreement to arbitrate between the parties; and

(2) whether the dispute in question falls within the scope of that

arbitration agreement. In determining whether the dispute falls within

the scope of the arbitration agreement, “ambiguities ... [are] resolved in

favor of arbitration.”

Fleetwood Enters., Inc. v. Gaskamp, 280 F.3d 1069, 1073 (5th Cir.), opinion

supplemented on denial of reh'g, 303 F.3d 570 (5th Cir. 2002).

“To 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). “The making of contracts over the

internet ‘has not fundamentally changed the principles of contract.” Kai Peng v.

Uber Techs., Inc., 237 F. Supp. 3d 36, 47 (E.D.N.Y. 2017), quoting Hines v.

Overstock.com, Inc., 668 F.Supp.2d 362, 366 (E.D.N.Y. 2009). “[I]n the context of

agreements made over the internet, New York courts find that binding contracts are

made when the user takes some action demonstrating that [she has] at least

constructive knowledge of the terms of the agreement, from which knowledge a

court can infer acceptance.” Id.

CVS/Caremark presented evidence, outlined above, that Plaintiffs assented to

arbitration in agreeing to the CVS/Caremark Terms and Conditions/Terms of Use

by creating online accounts, which required acceptance of such terms in order to

proceed. (Rec. Doc. 10-3). CVS/Caremark refers to this type of agreement as a

“clickwrap agreement.”

So-called clickwrap agreements are an increasingly common

type of web-based contract; they are formed when a user is presented

with a message on his or her computer screen and is required to

manifest her assent to the terms. The Second Circuit routinely enforces

clickwrap agreements as valid and binding contracts, for the principal

reason that the user has affirmatively assented to the terms of agreement

by clicking “I agree.”

…

Mere classification of a web-based contract as a “clickwrap

agreement” or a “browsewrap agreement,” however, does not

necessarily determine the contract’s enforceability. Instead, in the

context of clickwrap agreements, in addition to verifying that the user

was required to indicate her assent, the court must consider whether the

agreement’s terms and conditions were “reasonably conspicuous.”

Even if there is no evidence that the offeree had actual notice of the

terms of the agreement, the offeree will still be bound by the agreement

if a reasonably prudent user would be on inquiry notice of the terms.

Whether a reasonably prudent user would be on inquiry notice depends

on the clarity and conspicuousness of the terms and conditions; in the

context of web-based contracts this is often a function of the design and

content of the relevant interface.

Valelly v. Merrill Lynch, Pierce, Fenner & Smith Inc., 464 F. Supp. 3d 634, 640

(S.D.N.Y. 2020) (cleaned up), citing primarily Meyer v. Uber Techs., Inc., 868 F.3d

66, 75 (2d Cir. 2017). See also Fteja v. Facebook, Inc., 841 F. Supp. 2d 829, 840

(S.D.N.Y. 2012) (enforcing similar agreement).

Plaintiffs’ only argument in opposition is that CVS/Caremark’s evidence is

insufficient to show they agreed to the arbitration agreements. The Court disagrees

and finds that CVS/Caremark has submitted sufficient evidence to show that

Plaintiffs are parties to valid clickwrap agreements through the Caremark and CVS

websites. The Court further finds that the provision requiring arbitration is clear and

conspicuous, set forth in all capital letters and bold font. (Rec. Doc. 10-3, p. 21; 88-

89).

The arbitration provision provides that, except for disputes qualifying for

small claims court (inapplicable here), “all disputes arising out of or related to this

agreement or any aspect of the relationship between you, on the one hand, and

CVS/Caremark 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.” Plaintiffs’ claims that

CVS/Caremark’s messages were an unfair trade practice, tortious, and in violation

of the Louisiana Pharmacy Act (Rec. Doc. 2-1; 2-2) easily fit within the scope of

arbitrable disputes.

CVS/Caremark and the Lobbyist Defendants move jointly to compel

arbitration; although, the Lobbyist Defendants are not parties to the agreements with

Plaintiffs. Nevertheless, Plaintiffs’ claims against the nonsignatory Lobbyist

Defendants are subject to arbitration as well. See discussion in Reid v. Tandym Grp.,

LLC, 697 F. Supp. 3d 62, 76 (S.D.N.Y. 2023) (enforcing arbitration as to

nonsignatory under New York law).

Having found that the parties agreed to arbitrate and that the dispute falls

within the scope of the arbitration agreement, the Court must next determine

“whether legal constraints external to the parties’ agreement foreclosed the

arbitration of those claims.” Gaskamp, 280 F.3d at 1073. Plaintiffs offer no argument

that any legal constraint foreclosed their obligation to arbitrate disputes, and the

Court appreciates none. Accordingly, the Court finds that CVS/Caremark’s motion

should be granted and the case should be stayed pending arbitration. See Yanez v.

Dish Network, L.L.C., 140 F.4th 626, 632 (5th Cir. 2025), discussing Smith v.

Spizzirri, 601 U.S. 472, 474, 144 S. Ct. 1173, 1175 (2024).

Conclusion

For the reasons discussed herein, the Court recommends that Defendants’

Motion to Compel Arbitration. (Rec. Doc. 10) be GRANTED and that the case be

stayed pending arbitration.

Under the provisions of 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b),

parties aggrieved by this recommendation have fourteen days from service of this

report and recommendation to file specific, written objections with the Clerk of

Court. A party may respond to another party’s objections within fourteen days after

being served with of a copy of any objections or responses to the district judge at the

time of filing.

Failure to file written objections to the proposed factual findings and/or the

proposed legal conclusions reflected in the report and recommendation within

fourteen days following the date of its service, or within the time frame authorized

by Fed. R. Civ. P. 6(b), shall bar an aggrieved party from attacking either the factual

findings or the legal conclusions accepted by the district court, except upon grounds

of plain error. See Douglass v. United Services Automobile Association, 79 F.3d

1415 (5 Cir. 1996) (en banc), superseded by statute on other grounds, 28 U.S.C.

§636(b)(1).

THUS DONE in Chambers, Lafayette, Louisiana on this 2"! day of March,

CAROL B. WHITEHURST

UNITED STATES MAGISTRATE JUDGE