Introduction -

On December 21, 2017, the U.S. Court of Appeals for the Ninth Circuit decided Vividus, LLC v. Express Scripts, Inc., affirming a decision by the U.S. District Court for the District of Arizona, and agreeing with the Second, Third, and Fourth Circuits that the Federal Arbitration Act does not empower arbitrators to compel the production of documents from third parties outside an arbitration hearing. The Ninth Circuit’s decision further solidifies the majority view on this issue, on which only the Eighth Circuit has reached an opposite conclusion.

Background -

Vividus arose out of a September 2014 antitrust case filed in New York state court by Vividus, LLC, FKA HM Compounding Services, LLC and HMX Services, LLC (jointly, “ HMC”) against, among others, Express Scripts and CVS/Caremark Corp. Soon after filing, the case was removed to the U.S. District Court for the Eastern District of New York, which ordered HMC to arbitrate its dispute with CVS/Caremark in Arizona pursuant to a preexisting arbitration agreement, and to litigate its dispute with Express Scripts before the U.S. District Court for the Eastern District of Missouri, pursuant to a forum selection clause in a preexisting agreement between the parties.