MEMORANDUM

YOUNG, District Judge.

I. INTRODUCTION

In this emergency action, CaremarkPCS, L.L.C. and CVS Caremark Corporation (collectively, "Defendants" or "CVS Caremark"), moved to compel the plaintiff, Hopkinton Drug, Inc. ("Hopkinton") to submit to arbitration most of the claims asserted in its complaint, and to stay any remaining claims. Hopkinton, in reply, argued that the arbitration agreement is invalid and, even if it is valid, does not cover the actions at issue in this lawsuit.

The relationship between the parties is governed by a broad arbitration clause which compels arbitration. This Court does, however, retain the authority to issue a preliminary injunction and may develop the factual record necessary to do so. Before doing so, however, it needed to assure itself that the conduct Hopkinton originally sought to enjoin has not yet occurred; if it has, a preliminary injunction would be moot and could not be issued.

A. Procedural History

On June 30, 2014, Hopkinton filed a five-count complaint against the Defendants, in which it sought injunctive and monetary relief. Verified Compl. & Jury Demand, ECF No. 8. On that same day, it also filed an emergency motion for a temporary restraining order ("TRO"). Emergency Mot. TRO, ECF No. 3. This Court held a hearing two days later, on July 2, 2014, at which time, as is its wont, it combined the TRO motion with a trial on the merits pursuant to Federal Rule of Civil Procedure 65(b), and placed the case on the running trial list for September 2014. The next day, on July 3, Hopkinton filed an amended complaint, which added an additional count seeking confirmation of a previously issued arbitration award entered in its favor and against the Defendants. Verified Am. Compl. & Jury Demand ("Compl."), ECF No. 12.

That same day, the Defendants filed a motion to compel arbitration, along with an accompanying memorandum. Defs.' Mot. Compel Arbitration, ECF No. 13; Mem. Law Supp. Defs.' Mot. Compel Arbitration ("Defs.Mem."), ECF No. 14. Hopkinton responded on July 10, 2014. Pl.'s Mem. Law Opp'n Defs.' Mot. Compel Arbitration ("Pl.'s Opp'n"), ECF No. 16. The Defendants replied on July 14, 2014. Reply Supp. Defs.' Mot. Compel, Arbitration ("Defs.' Reply"), ECF No. 23.

The Court heard the matter on an expedited basis on July 17 and 18, 2014. Elec. Notice, July 14, 2014, ECF No. 21.

B. Concerning Arbitration1

Hopkinton is an independent pharmacy, which specializes in compounded pharmaceuticals (i.e., "preparing on a prescription-by-perception basis compounded medications for patients who cannot take standard prescriptions."). Compl. ¶¶ 7-8. CVS Caremark is a national pharmacy operator. Caremark entered into a provider agreement (the "Provider Agreement") with Hopkinton whereby Hopkinton agreed to fill prescriptions for health care plan members for which CVS served as a pharmacy benefits manager ("PBM").2 Id. ¶ 13. On June 23, 2014, CVS Caremark issued a written notice to Hopkinton, alleging that Hopkinton was not in compliance with the Provider Agreement, and that it would terminate Hopkinton's rights under the agreement. Id. ¶¶ 16, 19.

The relationship between Hopkinton and CVS is governed, as discussed above, by the Provider Agreement, which incorporates by reference a provider manual (the "Provider Manual"). The Provider Manual sets out further details governing the contractual obligations among the parties. See Defs.' Mem., Ex. 6, Decl. Wendy Walker, Ex. C, Provider Agreement, ECF No. 14-6. The parties first entered into the Provider Agreement in 1995, and it governs the contractual relationship today. See Defs.' Mem., Ex. 6, Decl. Wendy Walker 2. The Provider Agreement includes a clause requiring all disputes to be settled by an arbitrator, Provider Agreement § 9.5, as well as a provision allowing Caremark to amend the agreement or manual "by giving notice to the Provider of the terms of the amendment and specifying the date the amendment becomes effective." Id. § 1.3. By agreement, Arizona law applies to any substantive disputes. Id. § 9.4.

The Provider Manual also includes an arbitration clause. Complicating the dispute, there are two Manuals at issue here: one issued in 2011 (the "2011 Manual"), and one issued in 2014 (the "2014 Manual").

As is relevant for arbitration purposes, the 2011 Agreement provides that:

Pls.' Opp'n, Ex. 1, 2011 Provider Manual, ECF No. 16-1. The manual further provides that the contract is not static, but rather:

Id. Pursuant to that authority, on November 15, 2013, CVS sent Hopkinton a cover letter accompanied by a new Provider Manual which "supersedes all previous versions of the Provider Manual" as of January 1, 2014. Defs.' Mem., Ex. 6, Decl. Wendy Walker, Ex. A, Caremark Letter, ECF No. 14-6. Wendy Walker, CaremarkPCS's Director of Contracting Communications, averred that Hopkinton Drug submitted claims after January 1, 2014, the effective date of the 2014 Provider Manual. Defs.' Mem., Ex. 6, Decl. Wendy Walker 3.

Defs.' Mem., Ex. 6, Decl. Wendy Walker, Ex. A, 2014 Caremark Provider Manual at 45-46, ECF No. 14-6 (emphasis supplied).

II. ANALYSIS

A. Arbitration?

This Court must address four distinct issues concerning arbitration: (1) which arbitration agreement applies to this case, the 2011 or 2014 Manual, (2) if the 2014 Manual applies, is it enforceable, or is it unconscionable, (3) if the 2014 Manual is enforceable, are questions regarding the scope of arbitrability to be made by the arbiter or this Court, and (4) if this Court does have a role to play in this agreement, is it limited to issuing a preliminary injunction?

1. Federal Arbitration Act Context

This case implicates the Federal Arbitration Act ("FAA"), the "overarching purpose" of which is to "ensure the enforcement of arbitration agreements according to their terms so as to facilitate streamlined proceedings." AT & T Mobility LLC v. Concepcion, 563 U.S. 333, 131 S.Ct. 1740, 1748, 179 L.Ed.2d 742 (2011). The FAA "embodies the national policy favoring arbitration." Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 443, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006). Accordingly, in determining the scope of arbitration clauses, courts must consider general contract principles to determine the intent of the parties which underlie those clauses, but "`ambiguities as to the scope of the arbitration clause itself [must be] resolved in favor of arbitration.'" Dialysis Access Ctr., LLC v. RMS Lifeline, Inc., 638 F.3d 367, 376 (1st Cir.2011) (quoting Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 62, 115 S.Ct. 1212, 131 L.Ed.2d 76 (1995)). In making this determination, the Court must first determine, as a threshold matter, that the arbitration agreement is valid, legally enforceable, and encompasses the dispute in question. Id.

2. Which Arbitration Agreement Governs?

Both parties appear to agree that either the 2011 or 2014 Provider Manual sets out the arbitration clause that governs this action. Compare Pl.'s Opp'n 6 (2011 Provider Manual applies), with Defs.' Mem. 2 (2014 Provider Manual applies). They disagree, though, as to which one applies.

Hopkinton argues that the 2011 Manual ought apply because the Defendants are estopped from relying on the 2014 Manual. Hopkinton points to the fact that "[d]uring [earlier] arbitration proceedings between CVS Caremark and Hopkinton Drug, CVS Caremark took the position that the 2011 Provider Manual was the operative document." Pl.'s Opp'n 6. Thus, Hopkinton argues, the Defendants waived the right to rely on the 2014 agreement in this action. Id. at 7 (citing American Cont'l Life Ins. Co. v. Ranier Const. Co., Inc., 125 Ariz. 53, 55, 607 P.2d 372 (1980) ("Waiver is either the express, voluntary, intentional relinquishment of a known right or such conduct as warrants an inference of such intentional relinquishment.")). The Defendants, in turn, posit that the original proceeding upon which Hopkinton relies for its waiver argument was filed in October 2013, and at issue in that proceeding was a CVS audit which occurred in April 2013. Defs.' Reply 2. Such conduct, they argue, occurred while the 2011 agreement governed. The current suit, however, concerns a complaint filed on June 30, 2014, and at issue here is a 2014 decision by CVS to terminate its contractual relationship with Hopkinton. Id. Accordingly, they say, because the 2011 Manual governed conduct that happened before 2014, and the 2014 Manual governed conduct that occurred in 2014, there is no conflict, and thus no waiver or estoppel.

The Defendants have the better of this argument. First, they are correct that the original arbitration (which both parties agree was governed by the 2011 Manual) covered conduct that occurred in April 2013. See Pl.'s Opp'n, Ex. 3, CaremarkPCS, L.L.C.'s Mot. Dismiss Demand Arbitration 4, ECF No. 16-3. In the current suit, however, the gravamen of Hopkinton's complaint is that the Defendants have breached their contractual and other obligations by virtue of their decision to "issue[] the Notice to Hopkinton Drug without proper cause."3 Compl. ¶ 26. That notice occurred in June 2014, when the 2014 Manual was in effect. Thus, it is consistent for the Defendants to argue that one agreement governs one set of conduct, and another agreement governs another set of conduct, even if those disputes are between the same parties. As "[w]aiver by conduct must be established by evidence of acts inconsistent with an intent to assert the right," American Cont. Life Ins. Co., 125 Ariz. at 55, 607 P.2d 372, and as there is no such inconsistency here, the Court rejects Hopkinton's waiver argument.4

This ruling, however, does not necessarily resolve the question. There is an argument — which the parties have not briefed and therefore may have waived — that Caremark did not properly amend the 2011 Manual. Under the terms of the Provider Agreement, Caremark may amend the agreement or manual "by giving notice to the Provider of the terms of the amendment and specifying the date the amendment becomes effective." Provider Agreement § 1.3. The 2011 Manual has similar language. 2011 Manual ("Caremark may amend the Provider Agreement ... by giving notice to the Provider of the terms of the amendment and specifying the date the amendment becomes effective.").

Caremark provided Hopkinton 45 days' notice of the substitution of the 2014 Provider Manual, which satisfies the 30-day notice requirement set out in the Provider Agreement. See Provider Agreement § 1.3; Caremark Letter. It is not entirely clear, however, whether it gave "notice to the Provider of the terms of the Amendment." In its November letter, Caremark stated that:

The question, which neither party raises in their briefs, is whether stating that the updated version "supersedes all previous versions" of the manual counts as giving notice of the terms of the amendment. By one reading, it does not, as "notice of the terms of the Amendment" would imply mentioning the specific terms that change between versions of the manual. By another reading, however, it would — "provide notice of the terms of the Amendment" could be read simply as "what changed?" and here, Caremark is essentially saying "the entire Manual has changed," or, said a different way, the terms of the Amendment are that the Manual is superseded-in-full.

Further complicating matters is the fact that, apparently, the Provider Agreement is updated relatively often (or at least changed several times in the first half of this decade). In the context of such repeated contractual processes, information on the course of performance and subsequent conduct of the parties is particularly useful. See, e.g., Darner Motor Sales, Inc. v. Univ. Underwriters Ins. Co., 140 Ariz. 383, 393, 682 P.2d 388 (1984); Evers v. Safety-Kleen Sys., Inc., No. CV 10-02556-PHX-NVM, 2012 WL 2871113, at *2 (D.Ariz. July 12, 2012). If the type of notice that CVS provided in its November 2013 letter was accepted, repeatedly, without objection, that would be evidence that the notice was sufficiently detailed to satisfy the Performance Agreement. If, however, the November 2013 letter was an aberration, it would be evidence that such notice would be insufficient. In that case, the operative agreement would be the most-recent agreement, which could be the 2011 Manual (had it been noticed properly) or even the original Performance Agreement.

The parties do not brief this issue, and thus this Court may properly consider it waived. See, e.g., Zogenix, Inc. v. Patrick, No. 14-11689, 2014 WL 3339610, at *5 n. 4 (D.Mass. July 8, 2014) (Zobel, J.) (unbriefed arguments are waived). Moreover, if the 2014 Manual does not apply (because of a notice failure) it is unclear what agreement does control, and the Court likely cannot answer that question without further information from the parties.

Accordingly, based on the issues the parties have highlighted in their briefing, and the conclusions drawn therefrom, this memorandum proceeds under the assumption that the 2014 Manual applies.

3. Unconscionability

Hopkinton argues that even if the 2014 Manual applies, the arbitration clause itself ought be severed as unconscionable, because it is a contract of adhesion that is unduly oppressive. Pl.'s Opp'n 7-9.

Arizona law distinguishes between two types of contractual unconscionability — "`procedural unconscionability, i.e., something wrong in the bargaining process, and substantive unconscionability, i.e., the contract terms per se.'" Nelson v. Rice, 198 Ariz. 563, 567, 12 P.3d 238 (Ariz. Ct.App.2000) (quoting Phoenix Baptist Hosp. & Med. Ctr., Inc. v. Aiken, 179 Ariz. 289, 293, 877 P.2d 1345 (Ariz.Ct.App. 1994)). Contractual unconscionability is determined by the court as matter of law. Maxwell v. Fidelity Fin. Servs., Inc., 184 Ariz. 82, 87, 907 P.2d 51 (1995) (en banc). Moreover, at least for the sale of goods under the Uniform Commercial Code (and thus presumptively for all contracts, barring case law to the contrary), a showing of substantive unconscionability alone is sufficient for an unconscionability holding. See id. at 90, 907 P.2d 51.

a. Procedural Unconscionability

Procedural unconscionability "is concerned with `unfair surprise, fine print clauses, mistakes or ignorance of important facts or other things that mean bargaining did not proceed as it should.'" Id. at 88-89, 907 P.2d 51 (quoting Dan B. Dobbs, 2 Law of Remedies 706 (2d ed.1993)). Courts consider such factors as "`the real and voluntary meeting of the minds of the contracting party: age, education, intelligence, business acumen and experience, relative bargaining power, who drafted the contract, whether the terms were explained to the weaker party, whether alterations in the printed terms were possible, whether there were alternative sources of supply for the goods in question.'" Id. at 89, 907 P.2d 51 (quoting Johnson v. Mobil Oil Corp., 415 F.Supp. 264, 268 (E.D.Mich.1976)). Hopkinton's primary argument is that the arbitration clause is unconscionable because CVS Caremark presented it to Hopkinton on an improper "take-it-or-leave-it basis." Pl.'s Opp'n 10.

Under Arizona law, not all "take it or leave it" contracts are unconscionable, even if they are adhesive. Broemmer v. Abortion Servs. of Phoenix, Ltd., 173 Ariz. 148, 150-51, 840 P.2d 1013 (1992) (en banc). The situations where such contracts are found to be procedurally unconscionable are generally those where there are significant gaps in age, education, or income (such as in consumer contracts). Mere differences in bargaining power, even if significant, generally are not enough. E.g., Cooper v. QC Fin. Servs., Inc., 503 F.Supp.2d. 1266, 1278 (D.Ariz.2007); see also Equal Employment Opportunity Comm'n v. Cheesecake Factory, Inc., No. 08-cv-1207, 2009 WL 1259359, at *3 (D.Arizona May 6, 2009) ("Mere inequality in bargaining power is not sufficient to invalidate an arbitration agreement."). Accordingly, courts have generally been reluctant to find contracts between merchants to be unconscionable. See Captain Bounce, Inc. v. Bus. Fin. Servs., Inc., No. 11-CV-858 JLS (WMC), 2012 WL 928412, at *7 (S.D.Cal. Mar. 19, 2012). As such, plaintiffs seeking a procedural unconscionability severance must make (not merely allege) "a showing of the lack of meaningful choice." Coup v. Scottsdale Plaza Resort, LLC, 823 F.Supp.2d 931, 949 (D.Ariz.2011).

Here, Hopkinton alleges that "[e]very retail pharmacy must do business with CVS Caremark, since it is the largest provider of prescription and related health services in the country. There is no meaningful choice." Pl.'s Opp'n 10. It offered no evidence of such a claim, however, as it was required to do. Moreover, even if CVS is, indeed, the largest pharmacy provider, that claim does not necessitate a conclusion that there is no meaningful choice. See, e.g., Captain Bounce, 2012 WL 928412, at *7 (holding that there are meaningful choices so long as there "exist[s]... reasonable market alternatives"). As such, this Court concludes that there is an insufficient showing of procedural unconscionability.

Such a conclusion accords with how other courts, applying Arizona law to the Caremark contract (albeit the 2011 version) have ruled. In Crawford Prof'l Drugs, Inc. v. CVS Caremark Corp., 748 F.3d 249 (5th Cir.2014), the Fifth Circuit rejected a procedural unconscionability claim on the grounds that there was no evidence that the plaintiffs could not have abstained from contracting with CVS (and in that case, there were affidavits stating that Caremark is the largest PBM in Mississippi, evidence lacking in the instant case), and that the adhesion term was sufficiently conspicuous in the agreement. Id. at 264-66. Such grounds apply equally here. Similarly, in Uptown Drug Co., Inc. v. CVS Caremark Corp., 962 F.Supp.2d 1172 (N.D.Cal.2013), the court similarly rejected a procedural unconscionability argument on three grounds: First, that the plaintiff's allegations of a lack of bargaining choice were "conclusory and unsupported by the evidence." Id. at 1181. Second, that the arbitration clause was sufficiently visible in the manual. Id. at 1182. Third, the court concluded that in the case of agreements between two business entities, the plaintiff must provide evidence to show that it "was in any way unsophisticated" and that Caremark "had overwhelming relative bargaining power." Id. The reasoning of these courts, which address the same legal issues and the same facts as at issue here, are persuasive, and counsel in favor of a ruling that there is no procedural unconscionability in the contract at bar.

b. Substantive Unconscionability

A contract may also be substantively unconscionable. In making that determination, the Court must look to the "actual terms of the contract and examine[] the relative fairness of the obligations assumed." Maxwell, 184 Ariz. at 89, 907 P.2d 51. Relevant factors include: "contract terms so one-sided as to oppress or unfairly surprise an innocent party, an overall imbalance in the obligations and rights imposed by the bargain, and significant cost-price disparity." Id. The plaintiff has the obligation of creating an evidentiary record to demonstrate that enforcement of a contract would be unconscionable. Harrington v. Pulte Home Corp., 211 Ariz. 241, 253, 119 P.3d 1044 (Ariz.Ct.App.2005).

Hopkinton premises its substantive unconscionability claim on three bases: first, that the arbitration clause limits Caremark's liability to actual damages, rather than punitive or indirect damages, lost profits, or reputational injury; second, that the agreement eliminated class actions as a permissible procedural vehicle, and third, that limiting judicial injunctive relief only to preliminary injunctions is unfair. Pl.'s Opp'n 12.

Turning first to remedies, Hopkinton correctly cites cases holding that arbitration clauses that limit recovery to actual damages can be substantively unconscionable. See id. at 13 (citing, e.g., Whitney v. Alltel Comm'ns, Inc., 173 S.W.3d 300, 310 (Mo.Ct.App.2005)); Bellsouth Mobility LLC v. Christopher, 819 So.2d 171, 173 (Fla. 4th DCA 2002). The Defendants, in turn, rely on PacifiCare Health Sys. v. Book, 538 U.S. 401, 123 S.Ct. 1531, 155 L.Ed.2d 578 (2003) for the proposition that arbitration clauses that limit available remedies are acceptable. Defs.' Reply 6. In that case, the plaintiffs, who were subject to an arbitration agreement banning punitive damages, brought a civil RICO case and sought treble damages, as was permitted under the statute. PacifiCare Health Sys., 538 U.S. at 402-03, 123 S.Ct. 1531. The Supreme Court, recognizing that treble damages could be considered compensatory (and thus allowed under the arbitration agreement) or punitive (and thus forbidden), refused to rule on whether treble damages under the RICO statute were compensatory or punitive. Rather, the Supreme Court remanded the case back to the lower courts to determine whether such damages were "punitive" within the meaning of the arbitration agreement. Id. at 406-07, 123 S.Ct. 1531. The First Circuit, addressing similar Chapter 93A claims, also remanded a case to the arbiter to make factual findings necessary to determine whether treble damages and punitive damages were in actual conflict. See, e.g., Anderson v. Comcast Corp., 500 F.3d 66, 74-75 (1st Cir.2007).

These cases do not, as the Defendants would argue, stand for the broad proposition that any arbitration agreement limiting damages is proper. Rather, they stand for the narrower proposition that courts ought try to read arbitration agreements and underlying statutory rules in harmony to the extent possible. Moreover, turning back to the agreement here, the 2014 Manual provides that the arbiter may not "award indirect, consequential, or special damages of any nature (even if informed of their possibility), lost profits or savings, punitive damages, injury to reputation, or loss of customers or business, except as required by law." 2014 Manual at 45 (emphasis added). Such language would support a conclusion that broader damages would be allowed if required under the relevant statutory provisions, and thus, like in PacifiCare, this Court ought hold in reserve a finding about whether the arbitration clause and statutory context can be read together in this specific case. Accordingly, this Court does not rule that the arbitration provision is substantively unconscionable on this ground.

Second, Hopkinton challenges the arbitration agreement's limitation of class action remedies. See Pl.'s Opp'n 13. This argument, however, runs aground in the face of two recent Supreme Court cases, American Express Co. v. Italian Colors Rest., ___ U.S. ___, 133 S.Ct. 2304, 186 L.Ed.2d 417 (2013), and AT & T Mobility LLC v. Concepcion, 563 U.S. 333, 131 S.Ct. 1740, 179 L.Ed.2d 742 (2011). In Concepcion, the Court held that the Federal Arbitration Act overruled state laws that sought to mandate class action procedures in consumer arbitration cases. 131 S.Ct. at 1750-51 ("[C]lass arbitration, to the extent it is manufactured by [state law] rather than consensual, is inconsistent with the FAA"). In American Express, the Supreme Court emphasized that, absent a clear federal statutory command to the contrary, class action waivers are valid. 133 S.Ct. at 2309.5 These cases thus can be read for the proposition that a class action waiver is not so objectionable as to make its existence unconscionable.

Finally, Hopkinton attacks the arbitration clause's limitation of injunction relief only to preliminary injunctions. Pl.'s Opp'n 11. Here, though, given that arbitration clauses may forbid judicial involvement entirely without creating unconscionability problems, it does not seem unreasonable to say that a clause may limit (though not eliminate) such judicial involvement, and Hopkinton points to no case law to the contrary. Cf., e.g., Taylor v. Betts, 59 Ariz. 172, 178, 124 P.2d 764 (1942) (recognizing the principle of "the greater includes the lesser").

Accordingly, given the evidentiary record, this Court holds that the 2014 arbitration clause is not substantively unconscionable.

4. Determining Questions of Arbitrability

Assuming, as this memorandum has done, that this agreement is subject to arbitration, the question then becomes who — the court or the arbiter — may determine which subjects are within the scope of the arbitration agreement.

The Supreme Court, in AT & T Tech., Inc. v. Commc'ns Workers of Am., 475 U.S. 643, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986), set out a general rule that "the question of arbitrability ... is undeniably an issue for judicial determination." Id. at 649, 106 S.Ct. 1415. In its next breath, though, it created an exception: "Unless the parties clearly and unmistakably provide otherwise, the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitrator." Id. (emphasis added). In Awuah v. Coverall North Am., Inc., 554 F.3d 7 (1st Cir.2009), the First Circuit unpacked this phrase in a situation where, as here, the arbitration agreement incorporated the Rules of the American Arbitration Association ("AAA"). Id. at 11. There, the court held that the presence of AAA Rule 7(a), which "says plainly that the arbiter may `rule on his or her own jurisdiction including any objection to the `existence, scope, or validity of the arbitration agreement,' .... is about as `clear and unmistakable' as language can get." Id. at 11.

In this case, the 2014 Manual dictates that the parties must follow the AAA's Commercial Arbitration Rules and Mediation Procedures, but the operative rule is the same in that context. See Commercial Arbitration Rules and Mediation Procedures, https://www.adr.org/aaa/Show Property?nodeId=/UCM/ADRSTG_004103. Such precedent, which has been echoed by other courts, suggests that the arbitrator determines the scope of arbitrability. See also, e.g., Crawford, 748 F.3d at 262-63 (concluding that a reference to the AAA Rules in the Caremark Provider Agreement was "clear and unmistakable evidence" that the parties "agreed to arbitrate arbitrability").

In response, Hopkinton relies on the Sixth Circuit case Turi v. Main Street Adoption Servs., LLP, 633 F.3d 496 (6th Cir.2011). See Pl.'s Opp'n 18. There, faced with a narrow arbitration clause governing certain fees, the Sixth Circuit held that despite the incorporation of the AAA Rules which "generally delegate [the] power [to determine jurisdiction] to the arbitrator," the arbitrator could not "decide the arbitrability of ... claims that are clearly outside the scope of the arbitration clause." Turi, 633 F.3d at 506-07. The court held that because the arbitration clause was "narrow," it was "more likely that the provision [did] not even `arguably' apply to the dispute at issue." Id. at 507. Similarly, in Jackson & Jackson, LLC v. Willie Gary, LLC, 906 A.2d 76 (Del.2006), also cited by Hopkinton, the Delaware Supreme Court "adopt[ed] the majority federal view that reference to the AAA rules evidences a clear and unmistakable intent to submit arbitrability issues to an arbitrator." Id. at 80. It interpreted this rule, however, as applying only "in those cases where the arbitration clause generally provides for arbitration of all disputes and also incorporates a set of arbitration rules that empower arbitrators to decide arbitrability." Id. Other courts have persuasively questioned the reasoning of both of these decisions. See, e.g., Oracle Am., Inc. v. Myriad Grp. A.G., 724 F.3d 1069, 1076-77 (9th Cir.2013).

In any event, even if these rules govern here, they do not dictate a different result. Turning first to Turi, there, the Sixth Circuit premised its argument on the assumption that the arbitration clause was so narrow that the provision did not "arguably" apply to the dispute. In this case, the 2014 agreement covers "[a]ny and all disputes between Provider and Caremark," and thus arguably would cover all disputes. 2014 Manual at 50. Turning next to James & Jackson, there, the key question was whether the clause "incorporates a set of arbitration rules that empower arbitrators to decide arbitrability." 906 A.2d at 80. In that case, the court cited as sufficient a decision interpreting an arbitration clause which covered "all matters in dispute between [the parties]." Terminix Int'l Co., LP v. Palmer Ranch Ltd. P'ship, 432 F.3d 1327, 1329 n. 1 (11th Cir.2005). Such a clause is essentially the same one as in the case at bar.

Accordingly, this Court rules the arbitrator has the authority to determine the arbitrability of the claims raised in the complaint.

5. Judicial Involvement

Finally, the Court addresses the key issue: does this Court have the authority to do anything other than issue a preliminary injunction?6 It does not. As a starting premise, arbitration clauses are interpreted pursuant to normal contract interpretation standards and ambiguities in the scope of the language are to be resolved in favor of arbitration. Grand Wireless, Inc. v. Verizon Wireless, Inc., 748 F.3d 1, 7 (1st Cir.2014); see also Paul Revere Variable Annuity Ins. Co. v. Kirschhofer, 226 F.3d 15, 25 (1st Cir.2000) (discussing presumption in favor of arbitrability).

Hopkinton, relying mainly on the 2011 Manual, argues that the arbitration clause specifically reserves for parties the right to seek injunctive relief in state or federal court. Pl.'s Opp'n 15. It does. But that is of no moment: as discussed earlier, the 2014 Manual, not the 2011 Manual, controls. Turning to the clause in the 2014 Manual, the clause reserves the right of either party to "seek[] preliminary injunctive relief to halt or prevent a breach of this Provider Agreement in any state or federal court of law." 2014 Manual at 46. In the same breath, though, the clause provides (in bolded language) that:

Id. at 45.

Under governing Arizona law, "each part of a contract must be read together, `to bring harmony, if possible, between all parts of the writing.'" ELM Ret. Ctr., LP v. Callaway, 226 Ariz. 287, 291, 246 P.3d 938 (Ariz.Ct.App.2010) (quoting Gesina v. Gen. Elec. Co., 162 Ariz. 39, 45, 780 P.2d 1380 (Ariz.Ct.App.1988)). Reading these two provisions together, then, the best reading is that a party can seek judicial action to pause the breach of the Agreement, but cannot seek the courts involvement substantively to resolve the dispute, otherwise the provision that states that neither party has "the right to litigate that dispute through a court" would be rendered meaningless. Given that courts generally "lack[] authority to act in the face of a valid arbitration agreement," DiMercurio v. Sphere Drake Ins., PLC, 202 F.3d 71, 78 (1st Cir.2000), the language in the Provider Agreement implies that this Court may: (1) issue a preliminary injunction, and accordingly take evidence and hold proceedings necessary to determine whether to so issue, but (2) may not combine an injunction proceeding with a trial on the merits, and may not issue a final ruling on the merits. This the Court proceeded to do.7

B. Determining the Preliminary Injunction

On July 18, 2014, the Court granted Hopkinton a preliminary injunction ore tenus, fully explaining its reasoning from the bench. The key findings and rulings were set forth as follows:

C. What Now?

As presaged by the analysis above, once this Court had disposed of the issues relating to the preliminary injunction, it dutifully sent the parties to a second arbitration and administratively closed the court case. In retrospect, perhaps the Court was over-hasty, causing the parties needless expense and delay.9 See Telephone Workers U. of N.J., Local 827 v. New Jersey Bell Tel. Co., 584 F.2d 31, 33 (3d Cir.1978) (district court should determine whether prior federal judgment decided issue on which party seeks to compel arbitration); Sprague & Rhodes Commodity Corp. v. Instituto Mexicano Del Café, 566 F.2d 861, 863 (2d Cir.1977) (district court should determine res judicata effect of foreign judgment on petition to compel arbitration); National Shipping & Trading Corp. v. Buck Shipping Int'l Ltd., No. 81 Civ. 3818 (S.D.N.Y. Apr. 3, 1985) (LEXIS, Genfed Library, Dist file) [available on WESTLAW, 1985 WL 495] (courts appropriately consider res judicata arguments on motions to compel or stay arbitration).

In this case, the facts are not in dispute, and the law is clear. Indeed, there seems little for the arbiter to do because "[t]he doctrine of res judicata bars relitigation of a claim that has been adjudicated in a prior action involving the same parties or their privies." Chestnut Hill Dev. Corp. v. Otis Elevator Co., 739 F.Supp. 692, 696 (D.Mass.1990) (Caffrey, J.) (citing Commissioner v. Sunnen, 333 U.S. 591, 597, 68 S.Ct. 715, 92 L.Ed. 898 (1948)). In fact, it is black letter law that a valid and final judgment in favor of a defendant bars a subsequent action by the plaintiff regarding the same claim. Where a valid and final judgment in any action "extinguishes the plaintiff's claim pursuant to the rules of merger or bar, the claim extinguished includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose." Restatement (Second) of Judgments § 24(1).

Res judicata applies with equal force to arbitration: "[A] valid and final award by arbitration has the same effects under the rules of res judicata, subject to the same exceptions and qualifications, as a judgment of a court." Restatement (Second) of Judgments § 84(1) (1982); see also In re Dunn, No. 06-10630, 2007 WL 8027259, at *6 (D.Mass. Feb. 27, 2007) (Saris, J.) ("[T]he First Circuit has left no doubt that an arbitrator's decision may be given preclusive effect. The First Circuit has held the doctrines of collateral estoppel and res judicata apply to arbitration awards.") (internal citations and quotations omitted).10

The oft-cited decision in Burmah Oil Tankers, Ltd. v. Trisun Tankers, Ltd., 687 F.Supp. 897 (S.D.N.Y.1988) (MacMahon, J.) is squarely on point.

The parties do not dispute that the arbitration award was a final decision on the merits and that they were both parties to it. The parties also do not dispute that Trisun's demurrage claim could have been presented to the arbitration panel but was not.

Id. at 899.

Applying Judge MacMahon's analysis to this case is particularly compelling: "Clearly, the facts [here] are `related in time, space, origin, or motivation,' because they arise out of the same document [the Provider Agreement] and same transaction [the breach for non licensure] previously examined at length by the arbitrator[]. In contract disputes involving two claims under the same contract, the parties would be required to litigate both claims in the same cause of action." Id. at 900. See also Alyeska Pipeline Serv. Co. v. United States, 231 Ct.Cl. 540, 688 F.2d 765, 769 (1982) (single nondivisible contract normally gives rise to only one claim), cert. denied, 461 U.S. 943, 103 S.Ct. 2120, 77 L.Ed.2d 1301 (1983); Frankel v. Standard Radio Corp., 50 Misc.2d 492, 270 N.Y.S.2d 667, 669 (N.Y.Civ.Ct.1966) (separate claims under same contract "must be referred to arbitration as one for complete relief in an arbitration award"); see also Solow v. Avon Prods., Inc., 56 A.D.2d 785, 786, 392 N.Y.S.2d 618 (N.Y.App.Div.1977) ("Claims for damages spawned by the same liability on the same contract, and ascertainable at the time an action is commenced, must be demanded, if at all, in that action."); 4 A. Corbin, Corbin on Contracts 955, at 837 (1951) ("[I]t is inconvenient and vexatious to bring more than one action after all the breaches have occurred."). CVS Caremark offers no reason for a different result here. Indeed, the next arbiter will be considering the very same evidence as his predecessor. Accordingly, CVS Caremark's demand for termination should have been raised in the original arbitration proceeding and ought not now be raised separately. Burmah Oil Tankers, 687 F.Supp. at 901.

Despite this determination, however, "there is broad agreement among the circuit courts that the `effect of an arbitration award on future awards ... is properly resolved through arbitration.'" Employers Ins. Co. of Wausau v. OneBeacon Am. Ins. Co., 744 F.3d 25, 27 (1st Cir.2014) (quoting Courier-Citizen Co. v. Bos. Electrotypers Union No. 11, 702 F.2d 273, 280 (1st Cir.1983)). Furthermore, the First Circuit has determined that the arbiter is the proper person to determine the preclusive effect of a prior arbitration. Id. at 28 (citing National Cas. Co. v. OneBeacon Am. Ins. Co., No. 12-CV-11874, 2013 WL 3335022, at *8 (D.Mass. July 1, 2013) (Casper, J.)). Thus, this Court, at present, will stay its hand.

III. CONCLUSION

For the foregoing reasons, the Court preliminarily enjoined CVS Caremark from terminating Hopkinton as a party to the Provider Agreement, and ordered the parties to arbitrate the merits of the dispute.