IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-41213

THE MUECKE COMPANY, INCORPORATED; BRUCE ROGERS, 

individually and doing business as Rogers Pharmacy; BROOKSHIRE 

BROTHERS PHARMACY OF KIRBYVILLE, TEXAS; DE LA ROSA 

PHARMACY, INCORPORATED; HOMETOWN PHARMACY, L.C.; ROBERT 

KINSEY INVESTMENTS, INCORPORATED, doing business as Kinsey's 

Pharmacy, 

 Plaintiffs - Appellants

v.

CVS CAREMARK CORPORATION; CVS PHARMACY, INCORPORATED; 

CAREMARK RX, L.L.C., 

 Defendants - Appellees

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 6:10-CV-78

Before WIENER, CLEMENT, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Several independent retail pharmacies appeal the district court’s grant 

of a motion to compel arbitration of their RICO and misappropriation of trade 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

August 25, 2015

Lyle W. Cayce

Clerk

 Case: 14-41213 Document: 00513167856 Page: 1 Date Filed: 08/25/2015
No. 14-41213

2

secrets claims against several CVS entities. A recent decision from our circuit 

has almost entirely disposed of the issue. Consequently, we AFFIRM. 

FACTS AND PROCEDURAL BACKGROUND

The plaintiffs are independent retail pharmacies in Texas that filed 

claims against several CVS entities for racketeering, trade secret 

misappropriation, and violations of the Texas Any Willing Provider Law1 in 

September 2010. In their RICO/trade secret claims, the plaintiffs alleged CVS 

used the plaintiffs’ patients’ names and health information to market CVS 

products and services to the plaintiffs’ customers. The plaintiffs claim those 

names and the information were trade secrets and that CVS misappropriated 

them.

The defendants moved to compel arbitration pursuant to an arbitration 

provision in the provider agreements. Only one of the defendants was a 

signatory; all of the plaintiffs were signatories. The defendants based their 

motion on equitable estoppel, contending that the plaintiffs should not be 

allowed to raise claims based on the provider agreements while simultaneously 

avoiding the arbitration provision. There was no dispute that Arizona law 

controlled the interpretation of the provider agreements. Applying Arizona 

law, the magistrate judge recommended against compelling arbitration for the 

non-signatory defendants because he found that the claims could be litigated 

without reference to the contracts containing the arbitration provision. The 

magistrate judge stated: “The only relevance of the provider agreements to 

these claims is to explain how [the] [d]efendants obtained the information in 

the first place.”

 

1 The plaintiffs have since dismissed the only defendant to which their Texas Any 

Willing Provider claim applied.

 Case: 14-41213 Document: 00513167856 Page: 2 Date Filed: 08/25/2015
No. 14-41213

3

The district court adopted the magistrate judge’s memorandum and 

recommendations. It ordered arbitration between the plaintiffs and the lone 

signatory defendant, Caremark, L.L.C. It stayed claims against the nonsignatory defendants – CVS Caremark, CVS Pharmacy, and Caremark Rx –

pending the completion of arbitration to avoid inconsistent outcomes and 

comply with the Federal Arbitration Act.

The non-signatory parties appealed to this court. We affirmed in a short, 

unpublished opinion, holding that under the abuse of discretion standard, the 

district court did not err in denying the motion to compel arbitration with 

regard to the non-signatories. Muecke Co. v. CVS Caremark Corp., 512 F. 

App’x 395 (5th Cir. 2013) (“Muecke I”).

The plaintiffs did not initiate arbitration. Instead, they waited until the 

time expired for the defendants to seek review of Muecke I by the United States 

Supreme Court. Once that period ended, they moved to dismiss the claims that 

were to be arbitrated against Caremark, L.L.C. After briefing on both the 

voluntary dismissal and lifting of the stay pending arbitration, the district 

court granted the dismissal of the sole signatory defendant, Caremark, L.L.C.,

and lifted the stay as to the other defendants. The district court reminded the 

plaintiffs that if they later raised any issue related to the contracts the court

would again compel arbitration even with regard to the remaining nonsignatories.

In April 2014, this court issued a precedential opinion in a related case. 

See Crawford Prof’l Drugs, Inc. v. CVS Caremark Corp., 748 F.3d 249 (5th Cir. 

2014). That suit involved similarly situated plaintiffs who sued Caremark, 

L.L.C., CVS Caremark, CVS Pharmacy, and Caremark Rx. Id. at 254. The 

plaintiffs asserted trade secret misappropriation claims as well as other 

claims. Id. It is undisputed that Caremark, L.L.C. and the Crawford plaintiffs 

entered into the same provider agreements that are at issue here. Id. Three

 Case: 14-41213 Document: 00513167856 Page: 3 Date Filed: 08/25/2015
No. 14-41213

4

of the Crawford defendants were non-signatories to the provider agreements, 

but all four moved to compel arbitration. Id. 

The Crawford plaintiffs argued that they should not be compelled to 

arbitrate claims against non-signatories, their claims were not subject to the 

provider agreements, and the provider agreements and the provider manual’s 

arbitration clause were procedurally and substantively unconscionable under 

Mississippi law. Id. at 254-55. This court recognized, as did the district court 

in Muecke I, that the Supreme Court has held that the Federal Arbitration Act 

permits state-law contract theories such as equitable estoppel to compel

arbitration against nonparties. Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 

630 (2009). Applying that concept, this court held that “[t]he relevant Arizona 

law, made controlling by the Provider Agreement’s choice-of-law clause, 

supports the non-signatory [d]efendants’ motion to enforce the agreement to 

arbitrate . . . based on state-law equitable estoppel doctrine.” Crawford, 748 

F.3d at 255.

The Crawford court found that Arizona case law on equitable estoppel

was unhelpful, so it followed the Arizona Supreme Court’s direction to consider

California law in the absence of relevant Arizona law. Id. at 260. It identified 

a California Supreme Court decision advising courts to consider whether 

“‘claims against the [non-signatory defendants] are founded in and inextricably 

bound up with the obligations imposed by the agreement containing the 

arbitration clause’” when determining whether to apply equitable estoppel to 

an arbitration agreement. Id. (quoting Goldman v. KPMG LLP, 92 Cal. Rptr. 

3d 534, 541 (Cal. Ct. App. 2009)). The court held that under the elements of 

the plaintiffs’ trade secret claims, they needed to prove the defendants gained 

the secrets through “breach of a confidential relationship or discover[y] by 

improper means.” Id. at 261 (citation and quotation marks omitted). Because

the plaintiffs alleged they voluntarily gave the information to the defendants, 

 Case: 14-41213 Document: 00513167856 Page: 4 Date Filed: 08/25/2015
No. 14-41213

5

the plaintiffs would have to demonstrate that the defendants’ use of the 

information had “exceeded the scope of their permitted use . . . .” in the provider 

agreements. Id. Thus, the plaintiffs’ claims were “‘inextricably bound up with 

the obligations imposed by the agreement containing the arbitration clause.’” 

Id. (quoting Goldman, 92 Cal. Rptr. 3d at 541).

The remaining defendants in the current case, relying on Crawford, filed 

a motion for reconsideration of the court’s decision on arbitration. The

magistrate judge recommended reconsideration because it found that 

Crawford was an intervening change in the law. The magistrate judge had 

used a “derived-benefit standard” to determine that the plaintiffs were not 

claiming any benefit under the contract, but the Crawford court held that the 

elements of the plaintiffs’ trade secret misappropriation claims should be 

considered. The magistrate judge recognized that the elements for trade secret 

misappropriation in Texas, like those in Mississippi, require a plaintiff to show 

the “secrets are discovered through improper means.” Because it would be 

necessary to show how the defendants acquired their information, the 

misappropriation claims were “‘founded in and inextricably bound up with’ the 

terms and conditions of the provider agreements.”

The magistrate judge also held that changes in the factual development 

in the case warranted reconsideration because the changes demonstrated that 

“interpretation of the information-usage terms of the provider agreements is 

inescapable for the claims in this case.” The magistrate judge recommended 

the district court compel the plaintiffs to arbitrate their claims against the nonsignatory defendants. The district court agreed, adopted all recommendations, 

granted the motion to compel arbitration on all claims, and dismissed the case. 

The plaintiffs appealed.

 Case: 14-41213 Document: 00513167856 Page: 5 Date Filed: 08/25/2015
No. 14-41213

6

DISCUSSION

The plaintiffs contend that the district court erred by granting 

reconsideration and compelling arbitration. We review a district court’s 

decision to grant a motion to reconsider under Federal Rule of Civil Procedure

59(e) for abuse of discretion. Miller v. BAC Home Loans Servicing, L.P., 726 

F.3d 717, 721-22 (5th Cir. 2013). “‘To the extent that a ruling was a 

reconsideration of a question of law, however, the standard of review is de 

novo.’” Id. at 722 (quoting Pioneer Natural Res. USA, Inc. v. Paper, Allied 

Indus., Chem. & Energy Workers Int’l Union Loc. 4-487, 328 F.3d 818, 820 (5th 

Cir. 2013). We review a district court’s decision to compel arbitration de novo, 

its findings of fact under the clearly erroneous standard, and its “use of 

equitable estoppel to compel arbitration for an abuse of discretion.” Crawford, 

748 F.3d at 256.

A. Whether reconsideration was warranted

The plaintiffs argue that the law-of-the-case doctrine or, alternatively, 

the mandate rule prevents the district court from reconsidering its previous 

order denying the defendants’ motion to compel arbitration. The law-of-thecase doctrine “is not a jurisdictional rule, but a discretionary practice” that

“merely expresses the practice of courts generally to refuse to reopen what has 

been decided, not a limit to their power.” United States v. Matthews, 312 F.3d

652, 657 (5th Cir. 2002) (citation and quotation marks omitted). Unpublished 

opinions are precedential for purposes of the law of the case. 5TH CIR. R. 47.5.4. 

The same theory and rules apply to the mandate rule, which “provides that a 

lower court on remand must implement both the letter and the spirit of the 

appellate court’s mandate and may not disregard the explicit directives of that 

court.” Matthews, 312 F.3d at 657 (citation and quotation marks omitted). The 

rule does not apply when: “(1) [t]he evidence at a subsequent trial is 

 Case: 14-41213 Document: 00513167856 Page: 6 Date Filed: 08/25/2015
No. 14-41213

7

substantially different; (2) there has been an intervening change of law by a 

controlling authority; and (3) the earlier decision is clearly erroneous and 

would work a manifest injustice.” Id.

The district court concluded that Crawford represented an intervening 

change in the law, fitting within an exception to the law-of-the case doctrine

and the mandate rule. The plaintiffs contend that decision was incorrect 

because the Crawford panel did not consider the provider agreements’ no nonparty rights provision. That provision states that “no term or provision . . . is 

for the benefit of any person who is not a party to the [p]rovider [a]greement . 

. . .” The plaintiffs have argued throughout this litigation that this provision 

prohibits the non-signatory defendants from compelling arbitration. The 

Crawford panel did not address that provision. The plaintiffs make no other

attempt to distinguish the facts of this case from those in Crawford. They also 

argue that Crawford could not overrule Muecke I, citing several cases in which 

we held that one panel of this court cannot overrule another even if it perceives 

error in the precedent.

The magistrate judge specifically concluded that Crawford required a 

different analysis than the one used when first considering the issue. The 

Crawford court considered California precedent to find the relevant law. In 

Muecke I, the magistrate judge had only applied Arizona law. Because an 

intervening precedential Fifth Circuit decision used a distinctly different 

analysis for the same contract, the magistrate judge here concluded there was 

an intervening change of law by a controlling authority.

We agree that Crawford represents an intervening change of law by a 

controlling authority. It is a published opinion in which the court applied a 

completely different analysis than the one the district court used prior to our 

decision in Muecke I. Moreover, we need not determine whether the law-ofthe-case doctrine or mandate rule applies because they are merely procedural. 

 Case: 14-41213 Document: 00513167856 Page: 7 Date Filed: 08/25/2015
No. 14-41213

8

See Matthews, 312 F.3d at 657. “So long as a case remains alive, there is power 

to alter or revoke earlier rulings.” Id. at 657 n.5 (citation and quotation marks

omitted). The district court retained control of this case and altered its earlier 

ruling. Under Matthews, it had the authority to do so. See id. Regarding the

argument that Crawford could not have overruled Muecke I, our rules make 

clear that an unpublished opinion such as Muecke I is not precedential. See 

5TH CIR. R. 47.5.4. Thus, the Crawford court was not bound by Muecke I. 

B. Whether the district court erred in granting the defendants’ motion to 

compel arbitration

The plaintiffs argue that Crawford incorrectly applied Arizona law and 

incorrectly held that California law required compelling arbitration under the 

equitable estoppel doctrine. They urge this court to ignore Crawford and apply 

an analysis similar to that in the Muecke I district court decision. Crawford is 

controlling precedent, however, and the decision shaped the Fifth Circuit’s 

equitable estoppel analysis as applied to Arizona contracts. 

The Crawford analysis, discussed at length above, leads to the conclusion 

that the non-signatory defendants here may compel arbitration under the 

equitable estoppel doctrine because the elements for the plaintiffs’ claims are 

bound up with the provider agreements. See Crawford, 748 F.3d at 261. The 

district court correctly concluded that liability for a Texas trade secret 

misappropriation claim arises when trade secrets are obtained through 

improper means or disclosed or used in a manner that breaches confidence. 

See Lamont v. Vaquillas Energy Lopeno Ltd., LLP, 421 S.W.3d 198, 212 (Tex. 

App.—San Antonio 2013, no pet.) (quoting Hyde Corp. v. Huffines, 314 S.W.2d 

763, 769 (Tex. 1958)). The only way to determine how the defendants received 

the information and the manner in which they were allowed to use it is by 

referring to the provider agreements. Those claims therefore are bound up 

 Case: 14-41213 Document: 00513167856 Page: 8 Date Filed: 08/25/2015
No. 14-41213

9

with the provider agreements. See Crawford, 748 F.3d at 261. As a result, 

under Crawford, the district court did not err in granting the non-signatory 

defendants’ motion to compel arbitration.

The no non-party rights provision does not affect the Crawford analysis. 

Equitable estoppel is based on the premise that “[o]ne should not be permitted 

to rely on an agreement containing an arbitration clause for its claims, while 

at the same time repudiating the arbitration provision contained in the same 

contract.” Id. at 260 (citation and quotation marks omitted). Equitable 

estoppel, therefore, overrides a no non-party rights provision in the same way 

that it overrides an arbitration provision stating that it only applies to disputes 

between parties. Equitable estoppel recognizes that a non-signatory to the

provider agreements would not be able to exercise rights to compel arbitration 

but for the opposing party’s use of the contract for its claims. Because the 

plaintiffs are suing the defendants as if the defendants were parties to the 

contract, the plaintiffs cannot then claim the defendants are not parties to 

other portions of the contract. 

Furthermore, the plaintiffs have not directed us to any case law in which 

a no non-party rights provision barred the application of equitable estoppel. 

The general equitable estoppel or contract interpretation cases the plaintiffs 

cite do not discuss such provisions. Crawford controls the equitable estoppel 

analysis. The district court did not err in granting the motion to compel.

AFFIRMED.

 Case: 14-41213 Document: 00513167856 Page: 9 Date Filed: 08/25/2015