IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
ALBERTSON’S LLC, NEW )
ALBERTSONS L.P., SAFEWAY INC., )
and UNITED SUPERMARKETS, LLC, )
)
Plaintiffs, ) C.A. No. N25C-12-001 KMM
) CCLD
v. )
)
EXPRESS SCRIPTS, INC., )
)
Defendant. )
Date Submitted: May 12, 2026
Date Decided: August 5, 2026
Defendant’s Motion to Dismiss – GRANTED, in part, DENIED, in part
MEMORANDUM OPINION AND ORDER
Brian M. Rostocki, Nicholas R. Rodriguez, Evan D. Sweeney, REED SMITH LLP, Wilmington, Delaware; Selina P. Coleman (argued), Alexandra R. Klimkiewicz, REED SMITH LLP, Attorneys for Plaintiffs.
Marisa R. De Feo, HUSCH BLACKWELL LLP, Wilmington, Delaware; Sarah C.
Hellmann, Elizabeth A. Bozicevic (argued), HUSCH BLACKWELL LLP, St. Louis, Missouri, Attorneys for Defendant.
Miller, J.
I. INTRODUCTION
The facts here are straightforward. Plaintiffs Albertson’s LLC, New
Albertsons L.P., Safeway Inc., and United Supermarkets, LLC (together,
“Albertsons”) and Express Scripts, Inc. (“Express Scripts”) are parties to contracts,
pursuant to which Express Scripts reimburses Albertsons for prescription drugs it
fills for certain of its customers. The parties agreed that the reimbursement for brand
drugs is paid at a higher price than a generic drug. Express Scripts makes a payment
to Albertsons when a prescription is filled. The parties also agreed to an annual
reconciliation which determines the amount, if any, owed to Albertsons on an annual
basis.
The reconciliation is calculated based on the classification of the drugs at the
time of reconciliation—generic or brand. Albertsons asserts that Express Scripts
breached the contracts because it classified certain drugs at the point-of-sale as
“brand,” but then reclassified some of these drugs as “generic” for purposes of the
annual reconciliation. By doing so, Albertsons claims Express Scripts failed to pay
Albertsons millions of dollars.
Alternatively, Albertsons asserts that Express Scripts breached the implied
covenant of good faith and fair dealing because it exercised its contractual discretion
in a manner that deprived Albertsons the benefit of its bargain. Finally, Albertsons
1
asserts a claim for unjust enrichment in the alternative, claiming that Express Scripts
improperly withheld millions of dollars based on the reclassification of drugs.
Express Scripts moves to dismiss under Superior Court Rule 12(b)(6) (the
“Motion”),1 arguing that Albertsons failed to plead cognizable unjust enrichment
and implied covenant claims because valid contracts control the parties’ relationship
and the reconciliation process is governed by the contract, which cannot be rewritten
to grant Albertsons additional rights. Express Scripts argues that the breach of
contract claim is barred by the contractual dispute procedure because Albertsons
failed to initiate this action within the time period provided in the agreement.
Express Scripts finds success on the non-contract claims. The contract
includes a process by which Express Scripts is to calculate the annual reconciliation,
expressly stating the mechanism by which a drug’s classification is to be determined.
The contract does not require that the classification at the point-of-sale control the
classification for the reconciliation payment. Because Express Scripts’ method of
reconciliation is authorized by the agreement, the implied covenant claim must be
dismissed. The Motion is GRANTED on Count II.
Similarly, Albertsons cannot rely on an unjust enrichment claim for recovery
because a valid and enforceable contract governs the parties’ relationship.
Therefore, the Motion is GRANTED on Count III.
1
D.I. 15.
2
Express Scripts’ forfeiture argument, however, fails. Resolution of this
argument requires fact-finding, which defeats the Motion. Therefore, the Motion is
DENIED on Count I.
II. FACTUAL BACKGROUND 2
A. The Express Scripts and Albertsons relationship
As a Pharmacy Benefit Manager (“PBM”), 3 Express Scripts manages
prescription drug benefits for health insurance plans, employers, government
programs, and other entities principally responsible for paying for prescription drugs
(“Sponsors”). Express Scripts is an intermediary between insurance companies,
pharmacies, and drug manufacturers.4 Among other things, Express Scripts
contracts with a network of pharmacies and establishes payment levels for them. 5
Albertsons is a food retailer that operates over 1,700 pharmacies across 35
states and the District of Columbia.6 Express Scripts and Albertsons have a longstanding contractual relationship through which Albertsons’ pharmacies are “innetwork” pharmacies for members of health plans, for which Express Scripts
administers the prescription-drug benefits (“Plan Members”).7 The Express Scripts2
The facts are derived from the Consolidated Complaint, D.I. 6. (“Compl.”), and the documents it incorporates by reference.
3
Compl. ¶ 2.
4
Id. ¶ 3.
5
Id. ¶ 17.
6
Id. ¶ 4.
7
Id. ¶ 44.
3
Albertsons relationship is memorialized in numerous Pharmacy Provider
Agreements (together, the “Provider Agreement”).8
B. The classification of drugs and structure of payments
Under the Provider Agreement, Express Scripts agreed to reimburse
Albertsons for covered medications dispensed to Plan Members. 9 The amount
Express Scripts pays depends, in large part, on whether the drug is classified as
generic or brand. The Provider Agreement defines “Generic Drug” as:
[A] prescription drug – whether identified by its chemical, proprietary,
or non-proprietary name – which is pharmaceutically equivalent and
interchangeable with a drug containing an identical amount of the same
active ingredient(s) and approved by the FDA. 10
To determine whether a drug is a Generic Drug, the Provider Agreement states:
[T]he designation of a product as ‘generic’ … is determined by
[Express Scripts], using [Express Scripts’] brand/generic algorithm
and/or using data elements provided by First DataBank, Medi-Span, or
other sources nationally recognized in the retail prescription drug
industry. 11
8
Id. ¶ 45.
9
Id. ¶ 49.
10
Provider Agreement § 1.8.
11
Id.
4
A “brand” drug is “any prescription drug that is not a Generic Drug.”12
Generic and brand drugs are reimbursed at different rates, with brand drugs being
reimbursed at higher rates than Generic Drugs. 13
When a Plan Member fills a drug prescription at Albertsons, it enters the Plan
Member’s information into an electronic system. This information is transmitted to
Express Scripts’ third-party processor to determine whether the drug is a covered
medication under the Plan Member’s plan and the amount of any Copayment due at
the point-of-sale transaction, which Albertsons is required to collect.14 Whether the
drug is generic or brand impacts the point-of-sale price and possibly, the Plan
Member’s Copayment, which is determined by the Sponsor. Albertsons is informed
of the amount Express Scripts is expected to reimburse Albertsons for dispensing
the drug. 15 This is referred to as the claim adjudication process. Express Scripts
makes an initial payment to Albertsons based on the point-of-sale transaction.16
The Provider Agreement requires Express Scripts to pay Albertsons for
covered drugs at “the rates set forth in the applicable rate sheet(s) … less the
applicable Copayment.” 17 The terms for reimbursement are set forth in Exhibit A –
12
Compl. ¶ 48. The Provider Agreement does not specifically define “brand drug.” This definition originates from the 2023 Provider Manual, which is incorporated by reference into the Provider Agreement. Id.; Compl., Ex. C § 11.
13
Compl. ¶ 62.
14
Id. ¶¶ 29-30; Provider Agreement § 2.4.a.
15
Compl. ¶ 31.
16
Id.
17
Provider Agreement § 3.1.a.
5
ES1000, attached to the Provider Agreement (the “Rate Schedule”). 18 Express
Scripts performs an annual end-of-year reconciliation using the Rate Schedule to
evaluate whether any further payment is due to Albertsons. 19 Express Scripts
calculates the annual pricing guarantees based on the formula for brand and Generic
Drugs in the Rate Schedule and applies them to Albertsons’ sales during the year.20
If the initial payments are less than this calculated amount, Express Scripts owes
Albertsons the difference. If the initial payments are equal to or more than the
calculated amount, Express Scripts owes nothing further.
The Rate Schedule includes a procedure for Albertsons to dispute the
reconciliation and final reimbursement. Under Section 2.2.b, Albertsons must: (1)
notify Express Scripts in writing within 45 days after receipt of the reconciliation
report with “claim level detail necessary to support the Dispute[;]” (2) engage in
“good faith negotiations” for a period of 60 days; and if no resolution has been
reached, invoke the Dispute Resolution Process set forth in the Provider Agreement
18
The reimbursement amount is derived from the applicable “Average Wholesale Price” or “AWP” for a medication as determined “by Med-Span or other comparably reliable source as determined and selected by [Express Scripts] in its sole and absolute discretion with advance written notice” to Albertsons. Id. § 1.2. The annual reconciliation amount is determined by a discount off the AWP. Discounts on brand drugs is lower than the discount on generic drugs. Id., Rate Schedule § 2.4.a; Compl. ¶¶ 50-53.
19
Provider Agreement, Rate Schedule § 2.
20
Compl. ¶¶ 33-34; Provider Agreement, Rate Schedule §§ 2.2, 2.4.
6
within 30 days.21 If Albertsons fails to timely invoke the Dispute Resolution
Process, it is deemed to have accepted Express Scripts’ calculations. 22
C. The dispute
In February 2024, Express Scripts provided Albertsons with year-end reports
for calendar year 2023, which calculated the guaranteed amounts due based on
Albertsons’ 2023 sales (the “Year End Reports”).23 The Year End Reports reflected
that Express Scripts owed Albertsons an additional $3,655,627. This amount has
not been paid.
Further review, however, revealed that some drugs, which were classified as
“brand” at point-of-sale, were reflected in the Year End Reports as Generic Drugs,
resulting in a lower reimbursement calculation. 24 Albertsons believes that Express
Scripts “appear[s] to [have] flip[ped] many drugs previously classified as brand to
21
The Dispute Resolution Process in the Provider Agreement states that
[t]he aggrieved party shall notify the other party of its Claim including sufficient
detail to permit the other party to respond. The parties agree to meet and confer in
good faith to resolve any Claims that may arise under this Agreement for a period
of not less than thirty (30) days. In the event the parties cannot resolve any Claims
pursuant to Good Faith Discussions and the minimum thirty (30) day period has
been met, then the aggrieved party may end discussions with the other party by
providing written notice to the other party of its intent to cease discussions.
Thereafter, the parties may proceed to litigation.
Provider Agreement § 7.12.
22
Id., Rate Schedule § 2.2.b.
23
Compl. ¶ 58.
24
Id. ¶ 60.
7
generic drugs.”25 Accordingly, on March 28, 2024, Albertsons sent Express Scripts
the required notice of dispute of the 2023 reports, with claim level details.26
Albertsons claims that Express Scripts reclassifying drugs from brand to generic
resulted in an underpayment of at least $7.3 million.27
Express Scripts requested, and Albertsons provided, more information on
March 28 and April 10.28 Albertsons sent additional information requested by
Express Scripts, which it confirmed receiving on April 12, 2024.29 On May 24,
2024, Express Scripts emailed Albertsons with more questions and offered to discuss
the dispute the following week. 30
On July 17, 2024, Albertsons sent Express Scripts an email seeking to resolve
the dispute.31 Express Scripts failed to respond until August 6, 2024, despite
numerous follow up emails from Albertsons, when Express Scripts indicated that it
would respond by the end of the week.32 Express Scripts substantively responded
on August 12, 2024. On August 15, Albertsons responded to Express Scripts and
25
Id.
26
Id. ¶ 68.
27
Id. ¶ 67.
28
Id. ¶¶ 68-70.
29
Id. ¶¶ 72-73.
30
Id. ¶ 74.
31
Id. ¶ 75.
32
Id. ¶¶ 75-78. Follow up emails were sent on July 29, 2024, and August 1, 2024.
8
stated that it would be requesting a legal-to-legal call.33 After a few more followups, the legal-to-legal call occurred on October 1.34
Two days later, Express Scripts for the first time took the position that
Albertsons forfeited its right to dispute the Year End Reports because it failed to
invoke the Dispute Resolution Process by June 26, 2024. 35 On October 23, 2024,
Albertsons countered that Express Scripts waived its right to enforce the contractual
timeline because it continued negotiations with Albertsons beyond the deadline and
unreasonably delayed the negotiation period. 36
The parties continued communications until November 25, 2025, when
Albertsons filed this action. 37
III. PARTIES’ CONTENTIONS
Express Scripts argues that the implied covenant of good faith and fair dealing
has no application here because there is no “gap” in the Provider Agreement to be
filled, and Express Scripts used its contractual discretion in a manner explicitly
authorized by the Provider Agreement. 38 Albertsons counters that it does not rely
on a gap in the Provider Agreement to invoke the covenant, but rather, asserts that
Express Scripts “exploited its discretion to deprive Albertsons of the benefit of the
33
Id. ¶¶ 80-81.
34
Id. ¶¶ 82-84.
35
Id. ¶ 84.
36
Id. ¶ 85.
37
Id. ¶¶ 86-99.
38
D.I. 15 (“OB”) at 6-7; D.I. 32 (“RB”) at 7-11.
9
parties’ bargain.”39 Further, Albertsons argues that even if the Court disagrees with
its contractual interpretation, the Motion must be denied because Albertsons is
permitted to plead its implied covenant claim in the alternative at this stage.40
With a valid and enforceable contract, Express Scripts argues the unjust
enrichment claim must also be dismissed.41 Albertsons contends that the
enforceability of the Provider Agreement is called into question because Express
Scripts denies Albertsons’ right to recover under its interpretation of the contract and
therefore, unjust enrichment is properly pled in the alternative. 42
Finally, Express Scripts contends that Albertsons is barred from bringing this
action because it failed to timely invoke Section 7.12’s Dispute Resolution
Process. 43 Albertsons makes three arguments in response. First, the Rate Schedule
Section 2.2.b dispute procedure applies to a dispute over the reconciliation
calculations. Here, however, the dispute goes to a fundamental issue of Express
Scripts reclassifying drugs. Therefore, the Section 7.12 Dispute Resolution Process
(rather than Section 2.2.b) applies. Second, Express Scripts waived any defense
based on Section 2.2.b by continuing to engage in negotiations after the applicable
39
D.I. 30 (“AB”) at 5-9.
40
Id. at 8-9.
41
OB at 8-9; RB at 11-13.
42
AB at 9-10.
43
OB at 9-10.
10
deadline and its delayed responses. 44 Third, it substantially complied with the
dispute procedure and therefore, should not be forced to forfeit its claims. 45
IV. STANDARD OF REVIEW
On a motion to dismiss pursuant to Superior Court Civil Rule 12(b)(6), “the
governing pleading standard is…reasonable conceivability.”46 Accordingly, the
court must “deny the motion unless the plaintiff could not recover under any
reasonably conceivable set of circumstances susceptible of proof.”47 When
considering a motion under Rule 12(b)(6), the court “must accept all well-pleaded
factual allegations in the [c]omplaint as true, accept even vague allegations…as
‘well-pleaded’ if they provide defendant notice of the claims, [and] draw all
reasonable inferences in favor of the plaintiff[.]”48 “[U]nder Delaware’s judicial
system of notice pleading, a plaintiff need not plead evidence. Rather, the plaintiff
need only allege facts that, if true, state a claim upon which relief can be granted.”49
The court, however, does not accept “conclusory allegations unsupported by specific
facts,” or “draw unreasonable inferences in the plaintiff’s favor.” 50
44
AB at 10-16.
45
Id. at 13-14.
46
Cent. Mortg. Co. v. Morgan Stanley Mortg. Cap. Holdings LLC, 27 A.3d 531, 537 (Del. 2011). 47
Id. at 536.
48
Id. at 537.
49
VLIW Tech., LLC v. Hewlett-Packard Co., 840 A.2d 606, 611 (Del. 2003).
50
Windsor I, LLC v. CWCapital Asset Mgmt. LLC, 238 A.3d 863, 871 (Del. 2020) (citation omitted).
11
V. DISCUSSION
A. The implied covenant of good faith and fair dealing
Express Scripts argues that Albertsons’ implied covenant of good faith and
fair dealing claim cannot stand because the Provider Agreement permits the process
about which Albertsons complains.51 In Express Scripts’ view, Albertsons is
attempting to rewrite the contract to compel Express Scripts to use the same drug
classification at point-of-sale and annual reconciliation.52
Albertsons responds Express Scripts cannot exercise its discretion at point-ofsale to classify a drug for purposes of the Plan Member’s Copay and an initial
payment to Albertsons, and then “cherry-pick” another source to pay Albertsons a
lower rate to advantage itself while disadvantaging Albertsons at reconciliation.53
Even if the reconciliation is governed by the contract, Albertsons asserts that it is
permitted to plead the implied claim in the alternative because the Court may not
agree with Albertsons’ contract interpretation. 54
The implied covenant of good faith and fair dealing “‘attaches to every
contract.’”55 Viewed from the time of contracting, the covenant “ensures that neither
51
OB at 6.
52
Id. at 6-7; RB at 7-11.
53
AB at 6-7.
54
Id. at 7-8.
55
Johnson & Johnson v. Fortis Advisors LLC, 352 A.3d 229, 253 (Del. 2026) (the court may only imply terms “‘where obligations can be understood from the text of a written agreement but have nevertheless been omitted in the literal sense,’ and only to protect the ‘reasonable expectations’ that the parties shared at signing.”).
12
party acts arbitrarily or unreasonably to frustrate the fruits of their bargain.”56 As
used in the implied covenant, “good faith” does not mean “loyalty to the contractual
counterparty, but rather faithfulness to the scope, purpose, and terms of the parties’
contract.”57 “Fair dealing” does not mean “fair process” akin to an entire fairness
analysis, but rather, that the party acted “consistently with the terms of the parties’
agreement and its purpose.”58 The implied covenant is to be “surgically” applied
and cannot be used to “rewrite the contract to appease a party who later wishes to
rewrite a contract [it] now believes to have been a bad deal.”59 “The policy
underpinning the implied duty of good faith and fair dealing does not extend to post
contractual rebalancing of the economic benefits flowing to the contracting
parties.”60 “[H]indsight cannot correct oversight.” 61
The implied covenant of good faith and fair dealing applies in two primary
circumstances. The first is when “unforeseen developments—contingencies neither
anticipated nor resolved by the contract—that threaten the parties’ bargained-for
56
Id. (citing Dunlap v. State Farm Fire & Cas. Co., 878 A.2d 434, 442 (Del. 2005)); Miller v. HCP & Co., 2018 WL 656378, at *9 (Del. Ch. Feb 1, 2018), aff’d sub nom. Miller v. HCP Trumpet Investments, LLC, 194 A.3d 908 (Del. 2018); Jiggy Puzzles, LLC v. Steelhead Acquisition EE, Inc., 2026 WL 465112, at *6 (Del. Super. Feb. 18, 2026).
57
Gerber v. Enter. Prods. Holdings, LLC, 67 A.3d 400, 419 (Del. 2013).
58
Id. at 418-19.
59
Johnson & Johnson, 352 A.3d at 253 (quoting Nemec v. Shrader, 991 A.2d 1120, 1126 (Del. 2010) (“Parties have a right to enter into good and bad contracts, the law enforces both.”)). 60
Nemec, 991 A.2d at 1128.
61
Johnson & Johnson, 352 A.3d at 254; Jiggy Puzzles, LLC, 2026 WL 465112, at *7 (quoting Nemec, 991 A.2d at 1127-28) (the covenant does not allow “post contractual rebalancing of the economic benefits flowing to the contracting parties.”).
13
economic expectations” arise.62 Albertsons expressly disavows reliance on this
ground.
The second is “when a contract allocates discretionary authority to one party
over a central aspect of the contract.”63 The implied covenant requires that such
discretionary authority be exercised reasonably and in good faith. 64 When the party
with discretion exploits it “in a manner that defeats the ‘overarching purpose’ of the
bargain, courts may imply a requirement that such discretion be exercised reasonably
and in good faith to ensure that the discretionary power is applied consistently with
what reasonable parties would have agreed to at signing.”65
The Provider Agreement expressly permits Express Scripts to use one of the
four stated sources to classify a drug as a Generic Drug.66 There is no claim that
Express Scripts failed to use one of these sources. Rather, Albertsons’ theory is that
if Express Scripts exercises its discretion to select a data source at the point-of-sale
to classify a drug, it cannot later exercise its discretion to use another data source to
62
Johnson & Johnson, 352 A.3d at 254.
63
Id. at 253.
64
Id. at 254 n.16 (collecting cases).
65
Id. at 253.
66
(1) Express Scripts’ brand/generic algorithm, (2) data elements provided by First DataBank, (3) Medi-Span, or (4) other sources nationally recognized in the retail prescription drug industry. Provider Agreement § 1.8.
14
reclassify the drug at the time of reconciliation. 67 By doing so, Albertsons argues
that Express Scripts deprived Albertsons of the benefit of its bargain.
The starting point is the Provider Agreement. At the point-of-sale, Albertsons
inputs the prescription drug information into a database and determines the Plan
Member’s resulting Copay, if any. The database identifies the drug as generic or
brand. The Provider Agreement requires Express Scripts to make a payment on this
adjudicated claim within 30 days, on average.68
The Rate Schedule provides that Albertsons “shall receive reimbursement”
equal to, relevant here, “the applicable AWP discount plus applicable dispensing fee
as set forth in Section 2.4”69 The Rate Schedule goes on to state:
The annual effective Average Discount and Dispense Fee guarantees
specified below in Section 2.4 are not Sponsor-specific claims
adjudication rates…. The overall Average Discount and Dispense Fee
for any given Year70 shall ultimately be the AWP discount and dispense
fee set forth in the Contract Rates table for the applicable Schedule as
set forth below in Section 2.4.71
Section 2.4 contains the Contract Rate tables, identifying the applicable discount off
the AWP for brands and Generics.
67
Albertsons alleges that some of the drugs classified as Generic in the Year End Reports are classified as brand drugs in Medi-Span and First DataBank. Compl. ¶ 65. 68
Provider Agreement § 3.1.a.
69
Id., Rate Schedule § 2.1.
70
The Year is based on a calendar year. Id. § 1.7.
71
Id. § 2.2.
15
Within 45 days of the end of an applicable Year, Express Scripts is required
to send Albertsons a summary calculation report (the “Summary Report”) and a Year
End Report “of all [Albertsons] claims …. to allow [Albertsons] to determine
[Express Scripts’] end of year performance on claims processed during the
applicable year versus the aggregate annual Average Discount and Dispense Fee
guarantees in this [Rate Schedule].”72
These provisions reflect the parties’ agreement that Albertsons is to receive
an annual guaranteed payment based on the Contract Rate tables. Express Scripts
makes payments in the claims adjudication process. After the applicable calendar
year, Express Scripts prepares the Year End Reports, the express purpose of which
is to reconcile the amount Express Scripts paid during the year against the guaranteed
payment set forth in the Rate Schedule. The Contract Rate tables reflect the discount
off the AWP, which requires a drug to be classified. To make this classification,
Express Scripts is permitted to exercise its discretion to select one of the four data
sources. Express Scripts’ selection of a data source that benefits itself is not an abuse
of discretion. The contract does not require Express Scripts to select the data source
most beneficial to Albertsons, nor does the covenant of good faith and fair dealing.
Indeed, Express Scripts does not owe any loyalty to Albertsons.
72
Id. § 2.2.a.
16
That Express Scripts may have used a different data source in the claim
adjudication process, which classified certain drugs as brand, does not implicate the
implied covenant. Express Scripts’ exercise of discretion at the annual reconciliation
is “faithful[] to the scope, purpose, and terms of the parties’ contract.” 73 If
Albertsons wanted to require Express Scripts to use the same classification at pointof-sale and reconciliation, it could have negotiated for that at the bargaining table.
The implied covenant cannot be used to rewrite the parties’ contract because one
party is unhappy with the results of the bargained for deal.74
Finally, Albertsons argues that even if the Court agrees with Express Scripts,
Albertsons’ implied covenant claim still survives the Motion because Delaware
courts allow an implied covenant claim to be pled in the alternative to a breach of
contract claim.75
Albertsons is correct that Delaware courts will allow an implied covenant
claim to be pled in the alternative to a breach of contract, but only in limited
circumstances, such as when the contract is ambiguous or a factual dispute exists
over whether the contract governs the complained of conduct. 76 Here, the Provider
73
Gerber v. Enter. Prods. Holdings, LLC, 67 A.3d 400, 418-19 (Del. 2013). 74
Johnson & Johnson, 352 A.3d at 251 (the implied covenant “enforces the parties’ reasonable expectations in circumstances that they could not foresee and did not address in their written agreement, but it may not be used to rewrite or contradict express terms.”). 75
AB at 8.
76
DuPont De Nemours, Inc. v. Hemlock Semiconductor Operations LLC, 2024 WL 3161799, at *11-12, 12 n.149 (Del. Super. June 10, 2024) (factual questions regarding the scope and interplay, if any, of multiple contracts among the parties precluded dismissal of the implied covenant claim,
17
Agreement governs the challenged conduct and no party argues that the contract is
ambiguous. As such, the implied covenant claim cannot be pled in the alternative
and it must be dismissed.77
B. Unjust enrichment
Express Scripts argues that the unjust enrichment claim must be dismissed
because the relationship is governed by a valid and enforceable contract.78
Albertsons counters that because Express Scripts contends that Albertsons cannot
recover under its breach of contract claim, the unjust enrichment claim is properly
pled in the alternative. 79
The claim of unjust enrichment was developed by courts “as a theory of
recovery to remedy the absence of a formal contract[.]” 80 “Unjust enrichment is ‘the
unjust retention of a benefit to the loss of another, or the retention of money or
property of another against the fundamental principles of justice or equity and good
which was pled in the alternative); Bay Ctr. Apartments Owner, LLC v. Emery Bay PKI, LLC, 2009 WL 1124451, at *7 (Del. Ch. Apr. 20, 2009) (implied covenant claim not dismissed because the contract was ambiguous).
77
3M Co. v. Neology, Inc., 2019 WL 2714832, at *11 (Del. Super. June 28, 2019) (where the agreements “squarely address” the challenged conduct, the implied covenant claim must be dismissed as duplicative of the breach of contract claim).
78
OB 8-9.
79
AB at 9-10. Albertsons contends that Express Scripts was unjustly enriched by retaining more money than it was entitled had it complied with the Provider Agreement. Compl. ¶ 122. 80
James v. United Med. LLC, 2017 WL 1224513, at *7 (Del. Super. Mar. 31, 2017) (quoting Alltrista Plastics, LLC v. Rockline Indus., Inc., 2013 WL 5210255, at *11 (Del. Super. Sept. 4, 2013)).
18
conscience.’”81 To adequately plead an unjust enrichment claim a plaintiff must
plead that there was “(1) an enrichment, (2) an impoverishment, (3) a relation
between the enrichment and the impoverishment, and (4) the absence of
justification.” 82
Superior Court Civil Rule 8 allows a party to plead claims in the alternative,
even if those claims are inconsistent. 83 “Alternative theories of recovery are
permissible where the existence of the contract is in dispute.” 84 An unjust
enrichment claim is not available where a contract “governs the relationship between
parties that gives rise to the unjust enrichment claim.”85 Where neither party
81
Hopewell Logistics, Inc. v. Boomi, L.P., 2026 WL 2111406, at *8 (Del. Super. June 30, 2026) (quoting Fleer Corp. v. Topps Chewing Gum, Inc., 539 A.2d 1060, 1062 (Del. 1988)). 82
Id. (citing State ex rel. Jennings v. Monsanto Co., 299 A.3d 372, 390 (Del. 2023)). 83
Super. Ct. Civ. R. 8(e)(1).
84
Biomedical Statistical Consulting LLC v. Cordio Med. Ltd., 2026 WL 1166220, at *4 (Del. Super. Apr. 29, 2026) (citing Dillon Gage Incorporated of Dallas v. Umicore Precious Metals USA Inc., 2025 WL 3779149, at *3 (Del. Super. Dec. 30, 2025)).
85
James, 2017 WL 1224513, at *7 (quoting Alltrista Plastics, LLC, 2013 WL 5210255, at *11).
19
challenges the enforceability or validity of the express contract, the unjust
enrichment claim will be dismissed. 86
The Provider Agreement governs the parties’ dispute here. Simply because
Express Scripts denies that Albertsons is entitled to recover under its contract theory
does not call into question the enforceability of the contract.
Albertsons’ reliance on V-ME Media, Inc. v. Faith7, Inc. and Southeastern
Chester Cnty. Refuse Auth. v. BFI Waste Servs. of Penn., LLC is misplaced. In each
of these cases, the enforceability of the contract was at issue. 87 Here, there is no
86
Alltrista Plastics, LLC, 2013 WL 5210255, at *11; James, 2017 WL 1224513, at *7; Envolve Pharmacy Sols., Inc. v. Rite Aid Hdqtrs. Corp., 2021 WL 140919, at *9 (Del. Super. Jan. 15, 2021) (pleading unjust enrichment is only permissible “when there is doubt surrounding the enforceability or existence of the contract.”).
87
V-ME Media, Inc. v. Faith7, Inc. 2024 WL 4524844, at *6 (Del. Super. Oct. 18, 2024), as corrected (Nov. 26, 2024) (adopting a wait-and-see approach and deferring ruling on the unjust enrichment claim at the motion to dismiss stage because certain pleaded defenses might impact the enforceability of the contract); Se. Chester Cnty. Refuse Auth. v. BFI Waste Servs. of Penn., LLC, 2015 WL 3528260, at *4-5 (Del. Super. June 1, 2015) (declining to dismiss the unjust enrichment claim because the validity of the assignment of the contract was at issue, calling into question the enforceability of the contract).
20
challenge to the enforceability of the Provider Agreement. Accordingly, the unjust
enrichment claim must be dismissed.
C. Is the breach of contract claim barred?
Express Scripts argues that Albertsons is barred from bringing this action
because it did not timely invoke the Provider Agreement’s Dispute Resolution
Process. 88
Albertsons responds that the Rate Schedule dispute procedure (Section 2.2.b)
does not apply because its claims are broader than an objection to the reconciliation
calculations. Albertsons contends that the Provider Agreement’s Dispute Resolution
Process (Section 7.12) applies, and it complied with that section. 89 Alternatively,
Albertsons argues that even if Section 2.2.b applies, its claims are not barred
because: (1) the parties’ course of performance modified the dispute resolution
procedure; (2) it substantially complied with the procedure; (3) Express Scripts’
delay in participating in negotiations effectively prevented Albertsons from
complying with the dispute resolution procedure; and (4) due to this delay Express
Scripts is estopped from invoking the timing provision.90
88
OB at 9-10.
89
AB at 11.
90
Id. at 11-12.
21
1. Does Section 2.2.b apply to this dispute?
Albertsons argues that Section 2.2.b does not apply because its claims center
on Express Scripts’ classification of drugs as Generic Drugs, the definition of which
is in the Provider Agreement (not the Rate Schedule). 91 Express Scripts responds
that Section 2.2.b applies because Albertsons is challenging the reconciliation
reimbursement mechanism, which is found in the Rate Schedule. 92
Section 2.2.b states that Albertsons “shall be deemed to have approved and
accepted [Express Scripts’] performance set forth in the Summary Report unless
[Albertsons] notified [Express Scripts] in writing within forty-five (45) days after
[Albertsons’] receipt of the Summary Report.”93 Albertsons is challenging the
“2023 reconciliation files.”94 By its plain terms, Section 2.2.b applies to the disputed
claims.
2. Has the contract been modified through course of performance?
Albertsons argues that the parties’ course of performance modified the
contractual deadline, as evidenced by Express Scripts’ continued communications
and negotiations after the June 2024 deadline. 95 Relying on Motors Liquidation Co.,
91
Id. at 11. Albertsons argue that Section 2.2.b does not apply to the $3.6 million Express Scripts undisputedly owes Albertsons. Express Scripts does not argue otherwise. See D.I. 34 (“Tr.”) at 64-65 (“because . . . the 3.6 is in th[e] Summary Report, the Plaintiff is deemed to have accepted that”).
92
RB at 14.
93
Provider Agreement, Rate Schedule § 2.2.b.
94
Compl. ¶ 68.
95
AB at 12-13.
22
Dip Lenders Trust v. Allianz Ins. Co., Express Scripts responds that because the
agreement is unambiguous, course of performance is irrelevant.96
Motors Liquidation does not stand for the proposition that course of conduct
is not relevant to waiver or modification of the contract. That court ruled just the
opposite—terms of a written agreement may be modified by the parties’ conduct.
Thus, course of conduct is relevant. 97 Albertsons raises factual disputes regarding
contract modification that cannot be resolved on a motion to dismiss.98
3. Did Albertsons substantially comply with the dispute procedure?
Albertsons argues that it substantially complied with the requirements of
Section 2.2.b by (1) providing notice of the dispute and all claim level details within
45 days of receiving the Summary Report; (2) engaging in good faith negotiations;
and (3) ultimately notifying Express Scripts of its intent to proceed to litigation after
negotiations and settlement attempts failed.99 Express Scripts contends that
Albertsons’ substantial compliance argument fails because it did not invoke the
Dispute Resolution Process until 21 days after the deadline.100
96
RB at 15 n.35 (citing Motors Liquidation Co., Dip Lenders Tr. v. Allianz Ins. Co., 2013 WL 7095859, at *5 (Del. Super. Dec. 31, 2013), aff’d sub nom. Motors Liquidation Co. DIP Lenders Tr. v. Allstate Ins. Co., 191 A.3d 1109 (Del. 2018)).
97
Motors Liquidation Co., 2013 WL 7095859, at *5 (citing Pepsi–Cola Bottling Co. of Asbury Park v. Pepsico, Inc., 297 A.2d 28, 33 (Del.1972) (“any … provision of a written agreement may be waived or modified”)).
98
See Compl. ¶¶ 68-99.
99
AB at 13-14.
100
RB at 15 n.36.
23
“The requirement of substantial compliance is an attempt to avoid ‘harsh
results … where the purpose of the[ notice] requirement[] has been met.’”101
Substantial performance means “‘despite deviations from contract requirements,’”
the notice “‘provide[d] the important and essential benefits of the contract.’”102 The
determination of whether “the requirements of the substantial compliance doctrine
[has been satisfied] is one of fact.”103
Albertsons alleges that it fulfilled the requirements of Sections 2.2.b and 7.12,
except for the explicit invocation of Section 7.12 within 30 days.104 Albertsons
raised questions of fact which cannot be resolved at this stage.105
4. Does the prevention doctrine bar Express Scripts’ enforcement of the
Dispute Resolution Procedure?
Albertsons argues that Express Scripts’ delay in responding to Albertsons’
settlement proposal made it impossible to meet the deadline to invoke the Dispute
101
Gildor v. Optical Sols., Inc., 2006 WL 4782348, at *7 (Del. Ch. June 5, 2006) (quoting Colson v. Bureau of Labor and Indus., 831 P.2d 706, 709 (Or. Ct. App. 1992)); Kelly v. Blum, 2010 WL 629850, at *8 n.52 (Del. Ch. Feb. 24, 2010).
102
Gildor, 2006 WL 4782348, at *7 (quoting 17A AM. JUR. 2D Contracts § 619 (2005)); Kelly, 2010 WL 629850, at *8 n.52.
103
Travelers Life & Annuity Co. v. Desiderio, 2007 WL 2019795, at *2 n.5 (Del. Ch. July 3, 2007) (citing The Prudential Ins. Co. of Am. v. Kamrath, 475 F.3d 920, 925 (8th Cir.2007)). 104
AB at 13-14.
105
Travelers Life & Annuity Co., 2007 WL 2019795, at *2 n.5.
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Resolution Process.106 Having failed to respond, Express Scripts waived any
argument that the prevention doctrine cannot be invoked here.107
The prevention doctrine provides that “‘where a party’s breach by
nonperformance contributes materially to the non-occurrence of a condition of one
of his duties, the non-occurrence is excused.’”108 Stated differently, “‘a party may
not escape contractual liability by reliance upon the failure of a condition precedent
where the party wrongfully prevented performance of that condition precedent.’”109
Albertsons has raised factual disputes over the enforceability of the dispute
procedure deadline.
5. Is Express Scripts estopped from enforcing the deadline?
Albertsons argues that it detrimentally relied on Express Scripts’ continued
engagement in communications and negotiations well after the deadline had passed,
and therefore, Express Scripts should be estopped from enforcing the claim
106
AB at 15.
107
See RB at 13-15; see Emerald Partners v. Berlin, 726 A.2d 1215, 1224 (Del. 1999) (“Issues not briefed are deemed waived.”).
108
Straine DM Holdings LLC v. Breault, 2025 WL 275408, at *6 (Del. Super. Jan. 22, 2025) (quoting Snow Phipps Gp., LLC v. KCAKE Acq., Inc., 2021 WL 1714202, at *52 (Del. Ch. Apr. 30, 2021)).
109
Id. (quoting BitGo Hldgs., Inc. v. Galaxy Digit. Hldgs., Ltd., 319 A.3d 310, 333 (Del. 2024)).
25
forfeiture in Section 2.2.b. Express Scripts argues that the non-waiver provision in
Section 7.9 of the Provider Agreement precludes any claim for estoppel.110
The Provider Agreement’s non-waiver provision states: “[n]o waiver of a
breach of any covenant or condition shall be construed to be a waiver of any
subsequent breach. No act, delay or omission done, suffered, or permitted by the
parties shall be deemed to exhaust or impair any right, remedy or power of the parties
hereunder.” 111
Estoppel may apply “‘when, by its conduct, a party intentionally or
unintentionally leads another, in reliance on that conduct, to change position to his
detriment.’”112 Estoppel is typically a question reserved to be determined by the trier
of fact. 113
“‘[T]he law is clear that non-waiver clauses are not iron-clad protections that
preclude courts from holding [a party] responsible for their post-contracting
behavior,’” and such provisions “do[] not ‘have the unfettered power in all
circumstances to supersede the doctrines of waiver and estoppel.’” 114 Accordingly,
110
RB at 14; Provider Agreement § 7.9; Tr. at 19.
111
Provider Agreement § 7.9.
112
Jiggy Puzzles, LLC, 2026 WL 465112, at *19 (quoting In re Coinmint, LLC, 261 A.3d 867, 894 (Del. Ch. 2021)).
113
Id. (citing Dervaes v. H.W. Booker Constr. Co., 1980 WL 333053, at *10 (Del. Super. May 28, 1980)).
114
In re Coinmint, LLC, 261 A.3d at 899 (quoting Viking Pump, Inc. v. Liberty Mut. Ins. Co., 2007 WL 1207107, at *28 (Del. Ch. Apr. 2, 2007)).
26
a non-waiver provision does not preclude the defenses of waiver or estoppel at this
stage.115
The Provider Agreement’s non-waiver provision does not preclude
Albertsons from raising the defense of estoppel, which raises questions of fact that
cannot be resolved on a motion to dismiss.116
VI. CONCLUSION
The Provider Agreement permits Express Scripts to exercise its discretion to
select one of the four identified data sources to classify a drug as Generic or brand
at the time of reconciliation. The purpose of the reconciliation process is to ensure
that Albertsons receives the guaranteed payment set forth in the Rate Schedule
tables. Because the Provider Agreement permits the conduct Albertsons challenges,
its implied covenant of good faith and fair dealing claim must be dismissed. The
Motion is GRANTED on Count II.
Similarly, the Provider Agreement governs the parties’ conduct and therefore,
the unjust enrichment claim must be dismissed. The Motion is GRANTED on
Count III.
115
Id. at 900.
116
Jiggy Puzzles, LLC, 2026 WL 465112, at *19.
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Albertsons has raised defenses to the enforcement of the dispute resolution
process, which cannot be resolved at this stage of the proceeding. Accordingly, the
breach of contract claim is not dismissed. The Motion is DENIED on Count I.
IT IS SO ORDERED.
/s/Kathleen M. Miller
Kathleen M. Miller, Judge
28