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Click here for the full text of this decision FACTS:AdvancePCS Health L.P. (PCS) processes and adjudicates claims for reimbursement between member pharmacies and customers’ health care plans. The owners of several pharmacies filed suit in Hidalgo County on behalf of themselves and a putative class, asserting PCS had underpaid them for a decade. PCS submitted affidavits establishing that pharmacies joining its PCS network receive an enrollment package containing a Provider Agreement, enrollment instructions, an enrollment form, a service level worksheet, various network enrollment forms and addenda, and a provider manual. The Provider Agreement contains the following arbitration clause: 9.5 Arbitration: Any and all controversies in connection with or arising out of this Agreement will be exclusively settled by arbitration before a single arbitrator in accordance with the Rules of the American Arbitration Association. The arbitrator must follow the rule of law, and may only award remedies provided in this Agreement. The award of the arbitrator will be final and binding on the parties, and judgment upon such award may be entered in any court having jurisdiction thereof. Arbitration under this provision will be conducted in Scottsdale, Arizona, and Provider hereby agrees to such jurisdiction, unless otherwise agreed to by the parties in writing or mandated by Law, and the expenses of the arbitration, including attorneys’ fees, will be paid for by the party against whom the award of the arbitrator is rendered. This Section 9.5 and the parties’ rights hereunder shall be governed by the Federal Arbitration Act, 9 U.S.C. 1 et seq. HOLDING:The court conditionally grants the writ of mandamus and orders the trial court to compel arbitration of the pharmacies’ claims in accordance with the arbitration clause. Of the enrollment documents here, only the Provider Agreement contained an arbitration clause, and only the membership and network enrollment forms were signed by the pharmacies. But neither the FAA nor Texas law requires that arbitration clauses be signed, so long as they are written and agreed to by the parties. Nor does an arbitration agreement have to be included in each of the contract documents it purports to cover. The pharmacies signed numerous enrollment forms over the years (as new providers were added to the PCS network), each of which explicitly referenced and agreed to the terms of the Provider Agreement. So long as the parties agreed to arbitrate this dispute, it does not matter which document included that agreement. The pharmacies’ suit alleges that PCS miscalculated the negotiated discount from the average wholesale price figure (AWP), a term defined in the record only in the Provider Agreement. Indeed, all of the details of the parties’ reimbursement arrangements are contained in that agreement. As the pharmacies’ suit is based on that agreement, they cannot enforce all of it except the arbitration clause. The pharmacies assert other provisions in the Provider Agreement allow PCS to cancel the arbitration agreement at will, thus rendering its promise illusory and the agreement without consideration. When an arbitration clause is part of an underlying contract, the rest of the parties’ agreement provides the consideration. Having used the services and network of PCS to obtain reimbursements for 10 years, the pharmacies cannot claim their agreement to arbitrate was without consideration. Moreover, the arbitration clause here is not illusory even if considered alone, the court determines. The pharmacies contend that the arbitration clause lacked mutuality and is procedurally unconscionable, because the pharmacies were forced to accept it. But an arbitration provision is not unconscionable simply because it made as a “take it or leave it” offer. The pharmacies contend the arbitration clause was disclosed only after they had joined PCS. Hector de la Rosa testified that PCS sent the Provider Agreement to him only after he had signed and returned the enrollment forms. When asked whether he read the Provider Agreement upon receipt, he answered “[a]bsolutely not.” But de la Rosa signed several of the enrollment forms seriatim; having received the Provider Agreement after the first, he was on notice of its terms for all the rest. Nor did anyone else testify that the Provider Agreement came only after they had joined, including several other employees and agents who often signed for de la Rosa’s pharmacies. As neither affidavits nor testimony show that any pharmacy joined the PCS network without an opportunity to read the Provider Agreement, the pharmacies have not carried their evidentiary burden, the court concludes. OPINION:Per curiam; Johnson, J., did not participate in the decision.

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