On Feb. 11, the U.S. District Court for the District of Arizona issued a decision in Osterhaus v. Caremark Health compelling the plaintiffs to arbitrate their disputes. Notably, the court found several key elements of Caremark's dispute resolution process were "substantively unconscionable." This included a requirement that plaintiffs place money in escrow if they want to pursue arbitration and that claimants must adhere to strict confidentiality. Despite these unconscionable provisions, the court decided to void the unconscionable parts of Caremark's arbitration provisions and compel the parties to arbitrate. NCPA respectfully disagrees with this decision. When there are as many unconscionable parts to an arbitration provision as there were in Caremark's, the unfairly treated parties should not be forced to arbitrate.
NCPA wants to make clear that this decision does not prevent pharmacies from pursuing arbitrations against Caremark for unlawful activities, including breach of contract or antitrust claims related to DIR fees. If you would like to learn more about how you could participate in such an arbitration, please visit www.FightPBMS.com.
We will keep you appraised of any developments, including the potential for an immediate appeal.
