6:20-cv-00488-PRW Document 107 Filed in ED/OK on 07/12/21 Page 1 of 6
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF OKLAHOMA
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`THE CHICKASAW NATION,
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`Plaintiff,
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`v.
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`1. CVS CAREMARK, LLC;
`2. CAREMARK PHC, LLC;
`3. CAREMARK PCS HEALTH, LLC;
`4. CAREMARK, LLC;
`5. CAREMARK RX, LLC;
`6. AETNA, INC.;
`7. AETNA HEALTH, INC.;
`8. OPTUMRX, INC.;
`9. OPTUM, INC.;
`10. UNITED HEALTHCARE SERVICES,
`INC.; and
`11. UNITEDHEALTH GROUP, INC.
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`Case No. 6:20-cv-00488-PRW
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`Defendants.
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`PLAINTIFF’S CONSOLIDATED RESPONSE TO
`DEFENDANTS’ NOTICES OF SUPPLEMENTAL AUTHORITY (ECF NOS. 105, 106)
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`6:20-cv-00488-PRW Document 107 Filed in ED/OK on 07/12/21 Page 2 of 6
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`Plaintiff, the Chickasaw Nation (the “Nation”), hereby submits the following Consolidated
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`Response to Defendants’ Notices of Supplemental Authority (ECF Nos. 105 and 106)
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`(collectively, the “Notices”).1 For the reasons herein, as well as those set forth in the Nation’s prior
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`briefing (ECF Nos. 81, 82, 99, 100, and 104), the Nation respectfully requests this Court disregard
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`the Notices, grant the Nation’s Cross-Motion, and deny Defendants’ Motions.
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`ARGUMENT
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`In reaching its decision—which the Nation intends to appeal—the Arizona Court wrongly
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`assumed its own conclusion: that the parties entered into a clear and binding arbitration agreement
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`(they did not). As the Arizona Court acknowledges, arbitration is a matter of contract and “depends
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`upon whether the parties agreed to arbitrate that dispute.” Order at 3 (citation omitted). In
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`concluding the delegation clause vested arbitrators with the power to decide whether the parties
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`agreed to arbitration, the Order simply assumes there was a valid arbitration agreement in the first
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`place, and hence a valid delegation clause. But there was no such agreement and no valid
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`delegation clause.
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`The Arizona Court ignored the fact that the Nation’s pharmacies never signed any
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`document with any Caremark entity that actually contained an arbitration provision (much less a
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`delegation clause). Nor did the Arizona Court even cite, much less discuss, the only Supreme Court
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`decision involving agreements to arbitrate by Native American tribes, C & L Enterprises, Inc. v.
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`1 As used herein: (i) “Defendants” collectively refers to CVS Caremark, LLC; Caremark PHC,
`LLC; CaremarkPCS Health, LLC; Caremark RX, LLC; Aetna, Inc.; Aetna Health, Inc.; OptumRx,
`Inc.; Optum, Inc.; United Healthcare Services, Inc.; and UnitedHealth Group, Inc.; (ii) the
`“Motions” collectively refers to the Caremark/Aetna Defendants’ Motion to Stay (ECF No. 61)
`and the Optum/United Health Defendants’ Motion to Stay (ECF No. 59); (iii) the “Cross-Motion”
`refers to the Nation’s Cross-Motion for an Order or Declaratory Relief that its Claims are not
`Subject to Arbitration (ECF No. 82); (iv) the “Arizona Court” refers to the District of Arizona
`referenced in Defendants’ Notices; and (v) the “Order” refers to the Arizona Court’s Order
`Compelling Arbitration (ECF No. 105-1).
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`1
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`6:20-cv-00488-PRW Document 107 Filed in ED/OK on 07/12/21 Page 3 of 6
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`Citizen Band Potawatomi Indian Tribe of Oklahoma, 532 U.S. 411 (2001), which establishes a
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`“clear” and “unequivocal” standard that cannot be met by Caremark’s reliance on “Provider
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`Agreements” and “Network Enrollment Forms” that do not even contain the word “arbitration.”
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`Absent a clear and unequivocal assent by the Nation to arbitrate, there was no enforceable
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`arbitration agreement, no valid delegation clause, and hence no basis for the Arizona Court to
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`invoke that clause. The law is clear: Before granting a stay (see 9 U.S.C. § 3) or compelling
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`arbitration (see 9 U.S.C. § 4) under the Federal Arbitration Act (“FAA”), a Court—not an
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`arbitrator—must first determine whether a valid arbitration agreement exists (none exists
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`here).2 Coors Brewing Co. v. Molson Breweries, 51 F.3d 1511, 1515-16 (10th Cir. 1995) (“a valid
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`arbitration agreement and a dispute within the scope of that agreement are condition precedents
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`to arbitration”) (emphasis added).3 The presence of a delegation clause does not affect this
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`analysis. “A delegation clause is merely a specialized type of arbitration agreement, and the Act
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`‘operates on this additional arbitration agreement just as it does on any other.’” New Prime Inc. v.
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`Oliveira, 139 S.Ct. 532, 538 (2019) (citation omitted). Where “a party specifically challenges the
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`validity of the agreement to arbitrate” – and here the Nation never agreed to the arbitration
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`2 See ECF No. 81 at 10-22. See 9 U.S.C. § 3 (“[T]he court in which such suit is pending, upon
`being satisfied that the issue involved in such suit or proceeding is referable to arbitration under
`such an agreement, shall grant an application for stay.”); id. at § 4 (“The court shall hear the
`parties, and upon being satisfied that the making of the agreement for arbitration or the failure
`to comply therewith is not in issue, the court shall make an order directing the parties to proceed
`to arbitration in accordance with the terms of the agreement. … If the making of the arbitration
`agreement or the failure, neglect, or refusal to perform the same be in issue, the court shall proceed
`summarily to the trial thereof.”) (emphases added).
`3 See also Fedor v. United Healthcare, Inc., 976 F.3d 1100, 1106-07 (10th Cir. 2020) (“By
`claiming that neither she nor the other class members read or accepted the 2016 arbitration
`agreement, Fedor raised an issue of formation which—according to the Supreme Court in both
`Rent-A-Center and Granite Rock—cannot be delegated to an arbitrator”); Black v. Del Webb
`Communities, Inc., 2006 WL 8446305 *2 (D. Cal. 2006) (“under both sections three and four, the
`Court must be ‘satisfied’ that the arbitration agreement is binding before issuing the order.”).
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`2
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`provision or the delegation clause – it is entitled to a judicial resolution of that issue. Id.; see also
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`Granite Rock Co. v. International Broth. of Teamsters, 561 U.S. 287, 299 (2010) (“[C]ourts should
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`order arbitration of a dispute only where the court is satisfied that neither the formation of the
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`parties’ arbitration agreement nor (absent a valid provision specifically committing such disputes
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`to an arbitrator) its enforceability or applicability to the dispute is in issue.”).4
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`As the Nation previously briefed, a Court must also consider whether the Nation waived
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`its sovereign immunity (it did not);5 and whether the Recovery Act displaces any purported
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`agreement to arbitrate (it does).6 The Arizona Court erroneously failed to consider any of these
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`issues. As the Arizona Court failed to determine whether a valid and enforceable agreement to
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`arbitrate existed (and hence whether there was any valid and enforceable delegation clause), that
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`decision now necessarily rests with this Court.
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`4 The cases cited by the Arizona Court are to the same effect. Rent–A–Center, West, Inc. v.
`Jackson, 561 U.S. 63, 71 (2010) (“If a party challenges the validity under § 2 of the precise
`agreement to arbitrate at issue, the federal court must consider the challenge before ordering
`compliance with that agreement under § 4.”); First Options of Chicago, Inc. v. Kaplan, 514 U.S.
`938, 947 (1995) (where party resisting arbitration “did not clearly agree to submit the question of
`arbitrability to arbitration,” the issue of arbitrability of the dispute “was subject to independent
`review by the courts”). The remaining cases cited by the Arizona Court are inapposite. In Momot
`v. Mastro, 652 F.3d 982, 988 (9th Cir. 2011), there was no dispute as to formation of an arbitration
`agreement. Loc. Joint Exec. Bd. v. Mirage Casino-Hotel, Inc., 911 F.3d 588, 598-99 (9th Cir.
`2018), held it was for the court, not arbitrator, to decide in the first instance the substantive
`arbitrability of a union’s grievance. In PowerAgent Inc. v. Elec. Data Sys. Corp., 358 F.3d 1187,
`1189 (9th Cir. 2004), the complaining party agreed to delegate arbitrability to the arbitrators and
`“itself argued that the arbitration panel should independently determine the arbitrability of all its
`claims.”
`5 See ECF No. 81 at 10-16.
`6 See ECF No. 81 at 23-35.
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`3
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`6:20-cv-00488-PRW Document 107 Filed in ED/OK on 07/12/21 Page 5 of 6
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`CONCLUSION
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`For the foregoing reasons and the reasons stated in the Nation’s prior briefing (ECF Nos.
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`81, 82, 99, 100, and 104), the Nation respectfully requests the Court disregard Defendants’
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`Notices, deny Defendants’ Motions to Stay, and grant the Nation’s Cross-Motion.
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`Respectfully submitted on July 12, 2021:
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`s/ Michael Burrage
`Michael Burrage, OBA #1350
`Reggie Whitten, OBA #9576
`Patricia Sawyer OBA #30712
`WHITTEN BURRAGE
`512 N. Broadway Avenue, Suite 300
`Oklahoma City, Oklahoma 73102
`405.516.7800 office
`405.516.7859 fax
`rwhitten@whittenburragelaw.com
`mburrage@whittenburragelaw.com
`psawyer@whittenburragelaw.com
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`Michael B. Angelovich
`(Entry of appearance forthcoming)
`Chad E. Ihrig, OBA #19491
`Bradley W. Beskin
`Nicholas W. Shodrok
`NIX PATTERSON, LLP
`3600 N. Capital of Texas Highway #B350
`Austin, Texas 78746
`512.328.5333office
`512.328.5335 fax
`mangelovich@nixlaw.com
`cihrig@nixlaw.com
`bbeskin@nixlaw.com
`nshodrok@nixlaw.com
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`Attorneys for the Chickasaw Nation (Plaintiff)
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`6:20-cv-00488-PRW Document 107 Filed in ED/OK on 07/12/21 Page 6 of 6
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that on July 12, 2021, the undersigned electronically filed
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`the foregoing with the Clerk of the Court, to be served by operation of the Court’s electronic filing
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`system upon all counsel of record.
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`s/ Michael Burrage
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`5
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