          United States Court of Appeals
                      For the First Circuit

No. 16-2112

NATIONAL FEDERATION OF THE BLIND, on behalf of their members and
 themselves; MIKA PYYHKALA, on behalf of herself and all others
  similarly situated; LISA IRVING, on behalf of herself and all
  others similarly situated; JEANINE KAY LINEBACK, on behalf of
   herself and all others similarly situated; ARTHUR JACOBS, on
       behalf of himself and all others similarly situated,

                      Plaintiffs, Appellees,

   MARK CADIGAN, on behalf of himself and all others similarly
 situated; HEATHER ALBRIGHT, on behalf of herself and all others
                       similarly situated,

                           Plaintiffs,

                                v.

                    THE CONTAINER STORE, INC.,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Nathaniel M. Gorton, U.S. District Judge]


                              Before
                     Thompson, Circuit Judge,
                   Souter, Associate Justice,*
                    And Selya, Circuit Judge.


     Gregory F. Hurley, with whom Michael J. Chilleen and Sheppard,
Mulin, Richter & Hampton LLP were on brief, for Appellants.

     * Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
     Karla Gilbride, with whom Jeremy Y. Weltman, Kerstein, Coren,
Lichtenstein LLP, Jana Eisinger, Law Office of Jana Eisinger, Dani
Zylberberg, Public Justice, P.C., Scott C. LaBarre, LaBarre Law
Offices, P.C., Timonthy Elder, and TRE Legal Practice were on
brief, for Appellees.

                       September 14, 2018
            THOMPSON,        Circuit     Judge.     Appellees/Plaintiffs,               the

National Federation of the Blind ("NFB"), Mika Pyyhkala, Lisa

Irving,    Jeanine    Kay    Lineback,      and    Arthur       Jacobs    ("individual

plaintiffs"),1       filed    a     complaint     in     district      court        against

Appellant/Defendant,          the     Container        Store,     Inc.     ("Container

Store"),    alleging     several        violations       of     federal       and    state

discrimination   laws.        The    allegations        stem    from    the    Container

Store's failure to utilize at the time tactile keypads on its

point-of-sale    ("POS")          devices   in    its     stores       that    could    be

independently    used        by    customers      who    are     blind.       Citing    an

arbitration provision in the terms and conditions of a loyalty

program of which the individual plaintiffs were members, the

Container Store sought to stay the proceedings in district court

and compel arbitration.2            The district court denied the motion and

the Container Store appealed to this court.                    Finding no error, we

affirm.



     1 Two other named plaintiffs, Mark Cadigan and Heather
Albright, are not parties to this appeal. Defendant never sought
to have their claims moved to arbitration because they were not
enrolled in the loyalty program (where apparently the arbitration
provision was at play).
     2 The Container Store also sought to enforce a class action
prohibition found in the terms and conditions of the loyalty
program; however, neither party made specific arguments regarding
this provision either to the district court or to us. Therefore,
we consider only its motion to compel arbitration and treat as
waived for purposes of this appeal its attempt to enforce any class
action waiver entered into by Plaintiffs.


                                        - 3 -
                                 BACKGROUND

                           A. The Container Store

            The Container Store is devoted to selling storage and

organization products.       At the time this litigation commenced in

2015, it operated roughly seventy stores in the United States.3

The Container Store offers a loyalty program to its customers,

known as the POP! Program, where customers are given a card to use

during     their   purchases     to     accumulate      redeemable     points.

Membership offers customers several perks, including discount

coupons    and   special   deals.      The    loyalty   program   also   gives

customers additional benefits including the ability to get full

refunds for purchased products without a receipt.

            Enrollment in the loyalty program can be done in-store

or online; for in-store enrollment, customers need to use the

Container Store's POS devices to enter their contact information

-- specifically, phone numbers and email addresses.                  Customers

must also register their consent to the terms and conditions of

the program by checking a box that appears on the touch screen POS

device indicating agreement.        Customers wanting to receive a copy

of the terms and conditions on the spot may do so only upon request

to   the   store   associate   facilitating      the    enrollment   process.

Pertinent here, the terms and conditions of the loyalty program


      3These include stores in the states Plaintiffs reside: 3 in
Massachusetts, 11 in California, 4 in New York, and 12 in Texas.


                                      - 4 -
contain a mandatory arbitration and class action waiver provision,

found on the fourth page, which provides the following:

          You agree that The Container Store and you
          will resolve any disputes through binding and
          final arbitration instead of through court
          proceedings. YOU HEREBY WAIVE ANY RIGHT TO A
          JURY TRIAL OF ANY DISPUTE YOU HAVE WITH THE
          CONTAINER STORE. NEITHER YOU NOR THE CONTAINER
          STORE MAY BRING A CLAIM AGAINST THE OTHER AS
          A CLASS ACTION, REPRESENTATIVE ACTION, OR
          PRIVATE ATTORNEY GENERAL ACTION. NEITHER YOU
          NOR THE CONTAINER STORE MAY ACT AS A PRIVATE
          ATTORNEY GENERAL OR CLASS REPRESENTATIVE, NOR
          PARTICIPATE AS A MEMBER OF A CLASS OF
          CLAIMANTS WITH RESPECT TO ANY DISPUTE OR CLAIM
          BETWEEN US. These POP! Program terms evidence
          a transaction in interstate commerce, and thus
          the arbitration will be subject to the Federal
          Arbitration Act . . . .

          In the event of any dispute concerning the
          POP! Program or these terms, the parties
          unconditionally and irrevocably agree the
          dispute will be resolved by arbitration . . .
          exclusively in Dallas, Texas, in accordance
          with the rules of the American Arbitration
          Association.   The arbitration will be heard
          and determined by a single arbitrator.     The
          arbitrator's decision will be final and
          binding upon the parties and may be enforced
          in any court of competent jurisdiction. The
          prevailing party will be entitled to recover
          its attorneys' fees and arbitration costs from
          the other party. . . .

          Once enrollment is complete, a "welcome" email is sent

to the new member also containing an electronic link to the terms

and conditions.   Thereafter, members are sent monthly promotional

emails as part of the loyalty program that likewise contain a link

to the terms and conditions.   To register individual purchases to



                               - 5 -
their loyalty card, customers must provide their phone number or

email address to the store clerk at the time of each purchase.

                        B. The Plaintiffs

          Founded in 1940, the NFB is the largest and oldest

advocacy organization for individuals who are blind.   It initiated

this suit against the Container Store on behalf of (and in addition

to) the individual plaintiffs who are blind persons who shop at

the Container Store (collectively, "Plaintiffs").       Plaintiffs

allege they cannot enroll or participate in the loyalty program

without having to verbally disclose their email addresses or phone

numbers to the sales associate (and presumably, also to those

standing nearby who can overhear) because of the Container Store's

exclusive use of visual touch screen interfaces, without tactile

keypads on its POS devices.4   Plaintiffs further allege that blind

persons are unable to enter their personal identification numbers

("PINs") when making certain debit and credit card purchases due

to the machine's inaccessibility to them.

          Pyyhkala, Irving, and Jacobs ("the in-store plaintiffs")

each enrolled in the loyalty program while at the Container Store

with the assistance of a sales associate.     According to the in-

store plaintiffs, none were presented with the terms and conditions



     4 Plaintiffs allege that they notified the Container Store of
this problem prior to filing suit, but that the Container Store
failed to address it.


                               - 6 -
of   the   loyalty   program,   including   the   mandatory     arbitration

provision and class action waiver, nor did they agree to those

terms.

            Meanwhile,   Plaintiff   Lineback,      who   had    originally

attempted to enroll in the loyalty program at her local store but

was unable to do so because she could not use the POS device,5

enrolled from her computer at her home.           As part of her at-home

enrollment process, Lineback had to first check a box to the

immediate left of "I agree to the POP! terms and conditions"

(hyperlinked to the terms and conditions).        While it is undisputed

that she enrolled, Lineback does not recall being presented with

or reviewing any arbitration agreement.

                          C. This Litigation

            As a class action in September 2015, Plaintiffs filed a

twelve-count first amended complaint6 alleging a violation of Title

II of the Americans with Disabilities Act ("ADA"), 42 U.S.C.




      5At that time, an Accessibility Overlay, which contained
tactical portions and was used by the Container Store in an attempt
to enable visually impaired customers to use the POS device, was
being utilized. The overlay, however, did not make the POS device
discernable to Lineback.
      6Plaintiffs later filed a second amended complaint following
the decision on Defendant's motion, but we cite the first amended
complaint given it was the operative complaint when the motion was
decided.


                                  - 7 -
§ 12181, several violations of Massachusetts, New York, Texas, and

California discrimination laws,7 and seeking declaratory relief.

           The    complaint   alleges   that   the   Container    Store    "is

knowingly denying blind individuals throughout the United States

equal access to the goods and services it provides to its sighted

customers who shop at its retail store."               Specifically, the

complaint highlights that because of the Container Store's use of

a visual, touch screen interface on its POS device at many of its

locations, blind customers are unable to: (1) independently pay

for merchandise at the Container Store with a debit or credit card

requiring a PIN; (2) enroll in the loyalty program; or (3) register

each purchase they make to their loyalty program membership.

Instead, and unlike sighted customers, Plaintiffs have to verbally

disclose   this    private    information   to   the   store     clerk    (and

presumably anyone who is nearby and can hear), thus subjecting

them to privacy concerns every time they shop at the Container

Store.



     7 These allegations include violations of the following: the
Massachusetts Public Accommodations Act, Mass. Gen. Law ch. 272,
§ 98; the Massachusetts Equal Rights Act, Mass. Gen. Law ch. 93,
§ 103; the Consumer Protection Act, Mass. Gen. Law ch. 93A, § 9;
the Unruh Civil Rights Act, Cal. Civ. Code §§ 51 et seq.; the
California Disabled Persons Act, Cal. Civ. Code §§ 54-54.3; the
Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200, et seq.;
the New York Human Rights Law, N.Y. Exec. Law §§ 290 et seq.; the
New York Civil Rights Law, N.Y. Civ. Rights Law §§ 40 et seq.; the
New York City Human Rights Law, NYC Admin. Code §8-107; and the
Texas Human Resources Code, Tex. Hum. Res. Code § 121.001, et seq.


                                   - 8 -
          In response to the amended complaint, the Container

Store, citing the relevant provision in the terms and conditions

of the loyalty program, filed a motion to compel arbitration,

enforce class action waivers, and to stay action.    Attached to and

in support of its motion, Defendant submitted an affidavit of Joan

Manson, its Vice President of Loss Prevention, Payroll, Benefits

and Legal, in which she outlined both the at-home and in-store

process of enrolling in the loyalty program.    Plaintiffs objected

to the motion on the basis that the Container Store had "fail[ed]

to demonstrate that any enforceable contract to arbitrate was ever

formed." Plaintiffs also claimed that certain terms in the loyalty

program   (specifically,   the    change-in-terms   provision)   were

illusory and that the arbitration provision was unconscionable.

          A magistrate judge filed a report and recommendation on

the Container Store's motion, which denied its requested relief

and the Container Store objected to the report and recommendation

before the district judge.       In support of its objection, the

Container Store submitted a new piece of evidence:     excerpts from

a training manual for Container Store employees indicating they

were trained to "[a]llow the customer the opportunity to review

[the terms and conditions on the POS device/screen] and then ask

them to press the I Accept button," and that, "[i]n the event the

customer cannot enter their information on the tablet and would

like to enroll in [the loyalty program], at the customer's request,


                                 - 9 -
you can turn the tablet around and enter the information on the

customer's behalf."            The Container Store did not, however, present

any evidence that the store clerk in the relevant transactions did

in fact read the terms and conditions to Plaintiffs, nor that the

in-store plaintiffs were made aware that terms and conditions

existed.8

                  In a written decision adopting the magistrate judge's

report and recommendation, the district court denied Defendant's

motion to compel arbitration, enforce class waivers, and stay

action -- concluding that this one piece of new evidence did not

change its agreement with the magistrate judge's recommendation.

First, it held that pursuant to the requirements of the ADA, the

Container Store did not provide Plaintiffs the "minimal level of

notice" that by enrolling in the loyalty program they were agreeing

to waive their rights to pursue any future ADA claim in court --

thus,       any    arbitration       provision       was    not    enforceable    as   to

Plaintiffs' ADA claims.                Second, as to Plaintiffs' state-law

claims, the district court found (contrary to the Container Store's

position9)         that   it   was    the    proper        forum   to   decide   whether



        8
       A hearing on the pending motion was held on March 9, 2016
but a transcript was not provided to this court.
        9
       We'll talk more about this later -- the Container Store
insisted then (and does again now) that the arbitrator should
decide the merits of Plaintiffs' "we-never-agreed-to-arbitrate"
defense.


                                            - 10 -
Plaintiffs had in fact entered into an agreement to arbitrate any

future dispute with the Container Store.                            It concluded that

pursuant to Massachusetts law no contract to arbitrate was formed

between the Container Store and any of the in-store plaintiffs

primarily because there was no evidence that the store clerk

informed    them     of   the    existence         of    any   terms   and      conditions

applicable to the loyalty program.                       It rejected the Container

Store's argument that the in-store plaintiffs were on constructive

notice of the terms.            In a footnote, the district court likewise

rejected the Container Store's "suggestion" at oral argument that

by    continuing     enrollment         in    the        loyalty    program,      in-store

plaintiffs had ratified the arbitration agreement -- therefore

rendering it enforceable.            In doing so, it highlighted that the

Container Store had wholly failed to present any evidence that the

in-store plaintiffs reaped any benefits of the loyalty program.

            Lastly, the district court found that Lineback -- unlike

the in-store plaintiffs -- had entered into an agreement when she

enrolled in the loyalty program at home and was "bound by the

[l]oyalty      [p]rogram's       terms       and    conditions."          It    concluded,

however, that she too should not be compelled to arbitrate any of

her   claims    because    pursuant          to    Texas    law10   the    agreement    to

arbitrate      was   illusory      as    to        all    Plaintiffs      and    therefore


      10The terms and conditions of the loyalty program provide
that Texas law applies to any dispute between the parties.


                                         - 11 -
unenforceable (because it contained a change-in-term provision

that allowed the Container Store to unilaterally change the terms

of   the   agreement    and    was    silent    on   that   term's   retroactive

application).    It also found that the agreement was unconscionable

with respect to the in-store plaintiffs (but not Lineback).

            Accordingly, the judge entered an order denying the

Container Store's motion to compel arbitration, enforce class

action waiver, and stay action. Defendant appealed to this court.11

                                     DISCUSSION

                           A. Standard of Review

            We review a district court's denial of a motion to compel

arbitration de novo.          Kristian v. Comcast Corp., 446 F.3d 25, 31

(1st Cir. 2006).       "In conducting our inquiry, '[w]e are not wedded

to the lower court's rationale, but, rather, may affirm its order

on any independent ground made manifest by the record.'" Campbell

v. Gen. Dynamics Gov't Sys. Corp., 407 F.3d 546, 551 (1st Cir.

2005) (quoting InterGen N.V. v. Grina, 344 F.3d 134, 141 (1st Cir.

2003)).

                                  B. Arguments

            On appeal, the Container Store characterizes this case

as a "classic[] example of judicial hostility towards arbitration"



      11The district court later granted the Container Store's
motion to stay any proceedings in district court pending this
appeal.


                                       - 12 -
and   assigns    five   errors   to    the    district   court's   decision.

According to the Container Store, the district court overstepped

its boundaries and erred as a matter of law when it: (1) ruled in

the first instance on whether Plaintiffs had agreed to arbitrate

all their claims -- an issue it insists should have been decided

not by the court but by an arbitrator; (2) found that the parties

had not formed an agreement to arbitrate their ADA or state-law

claims; (3) determined that Plaintiffs had not ratified post

initial enrollment the loyalty program agreement (including the

arbitration     provision)   when     they   participated   in   its   loyalty

program after signing up; (4) found the contract was illusory; and

(5) ruled the contract was unconscionable.

           For their part, Plaintiffs maintain that the district

court got everything right.12


      12
       As a threshold matter, Plaintiffs claim the Container Store
has forfeited any right to appeal the magistrate judge's report
and recommendation, which the district court adopted. Plaintiffs
argue that the Container Store's objection to the report and
recommendation was untimely pursuant to Federal Rule of Civil
Procedure 72(a) and therefore not preserved for appellate review.
This argument can be easily dismissed. Although the magistrate
judge ordered that any objection be filed within fourteen days of
the report and recommendation's entry, and Defendants objected on
the seventeenth day, Rule 6(d) -- relating to parties being served
electronically (as was the case here) -- awards a three-day
extension. Fed. R. Civ. P. 6(d). Rule 6(d) was later amended to
disallow a three-day extension on documents served electronically,
but this amendment was not effective until December 1, 2016 --
roughly eight months after the applicable filings. Because the
three-day extension was still in effect, Defendant's objection was
timely and, consequently, the district court appropriately
considered it, leading to the appeal before this court. See Park

                                    - 13 -
                                    C. Merits

               1. Legal Framework of Arguments Presented

             We begin with a brief primer on the relevant statutory

framework in order to better understand the parties' arguments.

Almost a century ago (in 1925), Congress passed the Federal

Arbitration     Act      ("FAA")     "to    replace judicial indisposition

to arbitration with       a    'national        policy    favoring    [it]    and

plac[ing] arbitration agreements on equal footing with all other

contracts.'"     Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S.

576,   581    (2008)     (quoting    Buckeye      Check    Cashing,    Inc.    v.

Cardegna, 546 U.S. 440, 443 (2006)). As enacted, the FAA promotes

a liberal federal policy favoring arbitration and guarantees that

"[a] written provision in . . . a contract evidencing a transaction

involving     commerce    to   settle      by    arbitration   a     controversy

thereafter arising out of such contract or transaction . . . shall

be valid, irrevocable, and enforceable, save upon such grounds as

exist at law or in equity for the revocation of any contract."                 9

U.S.C. § 2.

             Section 3 of the FAA, 9 U.S.C. § 3, affords a mechanism

by which a party can request a court to stay a judicial proceeding

when the matter before the court involves an issue governed by an

agreement to arbitrate.        Section 4, 9 U.S.C. § 4, allows a party


Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir.
1980). We therefore proceed to the merits.


                                     - 14 -
aggrieved by another party's refusal to arbitrate to petition a

district    court    to   compel   arbitration   in   accordance    with   the

parties' preexisting agreement.

            A party seeking to compel arbitration "must demonstrate

that a valid agreement to arbitrate exists, that the movant is

entitled to invoke the arbitration clause, that the other party is

bound by that clause, and that the claim asserted comes within the

clause's scope."       Soto-Fonalledas v. Ritz-Carlton San Juan Hotel

Spa & Casino, 640 F.3d 471, 474 (1st Cir. 2011) (internal quotation

marks omitted).

            However, "[a] court may order parties to arbitrate a

given dispute only if they have agreed to submit such a dispute to

arbitration."       Escobar-Noble v. Luxury Hotels Int'l of P.R., Inc.,

680 F.3d 118, 121 (1st Cir. 2012).        Therefore, "a court should not

compel arbitration unless and until it determines that the parties

entered into a validly formed and legally enforceable agreement

covering the underlying claims(s)."           Id. at 121-22.    "To satisfy

itself that such agreement exists, the court must resolve any issue

that calls into question the formation or applicability of the

specific arbitration clause that a party seeks to have the court

enforce."    Granite Rock Co. v. Int'l Bhd. of Teamsters, 561 U.S.

287, 297 (2010).

            The     requirement    that   a   party   seeking      to   compel

arbitration establish that a contract to arbitrate was formed


                                    - 15 -
recognizes that, "[t]hough a person may, by contract, waive his or

her right to adjudication, see 9 U.S.C. § 2, there can be no waiver

in the absence of an agreement signifying an assent."           McCarthy v.

Azure,    22   F.3d   351,   355   (1st   Cir.   1994).   In   this   manner,

"arbitration is a matter of contract," AT&T Techs., Inc. v. Commc'n

Workers, 475 U.S. 643, 648 (1986) (quoting United Steelworkers v.

Warrior & Gulf Navig. Co., 363 U.S. 574, 582 (1960)), and for the

most part, general principles of state contract law control the

determination of whether an agreement to arbitrate exists, see

Perry v. Thomas, 482 U.S. 483, 492 n.9 (1987) ("[S]tate law,

whether of legislative or judicial origin, is applicable if that

law arose to govern issues concerning the validity, revocability,

and enforceability of contracts generally."); see also Mirra Co.

v. Sch. Admin. Dist. # 35, 251 F.3d 301, 304 (1st Cir. 2001);

Rosenberg v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 170 F.3d

1, 19 (1st Cir. 1999).13


     13 The parties dispute whether Massachusetts or Texas law
applies in this case. This litigation commenced in Massachusetts.
Therefore,   Plaintiffs   contend    Massachusetts   law   applies.
Meanwhile, as we previously indicated in footnote 10, the terms of
the loyalty program specify that Texas law applies to any dispute
between the parties. Therefore, the Container Store asks us to
apply Texas law.     We agree with the district court that the
principles governing our decision are so fundamental and basic,
the outcome does not change whether we apply Massachusetts or Texas
law. Compare Momentis U.S. Corp. v. Weisfeld, 05-13-0105-CV, 2014
WL 3700697, at *2 (Tex. App. July 22, 2014) (pursuant to Texas
law, a party seeking to compel arbitration must show that the
agreement meets all contract elements such as offer, acceptance,
meeting of the minds, consent, and consideration), with Ajemian v.


                                    - 16 -
            Pursuant      to    established    Supreme   Court       precedent,

however,    there's    an      important   distinction   between     arguments

challenging the validity of an agreement and those challenging an

agreement's formation.          See Buckeye, 546 U.S. at 444 n.1 ("The

issue of the contract's validity is different from the issue [of]

whether any agreement . . . was ever concluded.             Our opinion today

addresses    only   the     former.");     Rent-A-Center,    West,    Inc.   v.

Jackson, 561 U.S. 63, 70 n.2 (2010) (same).

            "[C]ontract law defines formation as acceptance of an

offer on specified terms." Granite Rock Co., 561 U.S. at 304 n.11;

TLT Const. Corp. v. RI, Inc., 484 F.3d 130, 137 (1st Cir. 2007).

One could challenge the formation of a contract by claiming one of

the essential elements (offer, acceptance, and consideration) is

missing.    See, e.g., Amedisys, Inc. v. Kingwood Home Health Care,

LLC, 437 S.W.3d 507, 513 (Tex. 2014).            A challenge to formation

can also be done by showing that one party never agreed to the

terms of the contract, that a signatory did not possess the

authority to commit the principal, or that the signor lacked the

mental capacity to assent.         Buckeye, 546 U.S. at 444 n.1; see also

In re Morgan Stanley & Co., 293 S.W.3d 182, 187 (Tex. 2009)


Yahoo!, Inc., 987 N.E.2d 604, 612 (Mass. App. Ct. 2013) (as the
"essential"   elements   to  forming   a  contract   pursuant   to
Massachusetts    law, an "unambiguous manifestation of assent,"
offer, acceptance, and bargained-for exchange of consideration are
required).   Accordingly, we apply Defendant-requested Texas law
(because even doing so, it still cannot prevail).


                                     - 17 -
(concluding that in Texas, issues of mental capacity call into

question the ability of a party to assent and, therefore, challenge

the existence of a contract).     Under Texas law, asserting that an

agreement is illusory raises a challenge to the formation of the

agreement because when an agreement is illusory it is unsupported

by consideration, and thus, "there is no contract."     See Lizalde

v. Vista Quality Mkts., 746 F.3d 222, 225–26 (5th Cir. 2014)

(finding that an agreement to arbitrate is illusory if one party

can avoid arbitration by amending or eliminating the arbitration

clause).

           On the other hand, a challenge to validity requires

consideration of the enforceability of the agreement and if it is

void or voidable.     Granite Rock Co., 561 U.S. at 301; Buckeye,

546 U.S. at 448-49.       Like formation, this challenge requires a

look at relevant state law.      Perry v. Thomas, 482 U.S. 483, 492

n.9 (1987).    Some challenges that attack the validity of an

agreement include duress, inducement, and fraud.    See S.C. Maxwell

Family P'ship, Ltd. v. Kent, 472 S.W.3d 341, 344 (Tex. App. 2015)

(stating that in Texas fraud or inducement are challenges to a

contract's validity).14


     14 See also 7 Philip L. Bruner & Patrick J. O'Connor
Construction Law § 21:73 (2018) ("Broad arbitration agreements
have been found to cover challenges to the validity of the entire
contract on such grounds as duress, unconscionability, coercion,
frustration of purpose, lack of mutuality, capacity, confusion in
signing and, of course, fraud.") (collecting cases).


                                - 18 -
             Even within the "validity challenge" realm, there's

another distinction:       A challenge to the validity of an entire

contract    containing    an   arbitration     provision   must    go   to    an

arbitrator.       See Prima Paint Corp. v. Flood & Conklin Mfg. Co.,

388 U.S. 395, 402-04 (1967).15           Meanwhile, a challenge to the

validity of the arbitration provision itself must be decided by

the court.    Buckeye, 546 U.S. at 443-45.

                               2. Discussion

                      a. Forum (in-store plaintiffs)

             The Container Store's first argument is that the in-

store plaintiffs' objection to its motion to compel arbitration

should     have    been   rejected     below   because     their   challenge

(supposedly) is not based on defects in contract formation but on

their inability to read the entire agreement -- meaning (at least

as the Container Store sees it) their challenge is an attack on

the validity of the loyalty program agreement in its entirety (and

not just the validity of the arbitration provision itself).                  And

the Container Store believes this is precisely the issue that

belongs before an arbitrator, not the court.


     15  In Prima Paint, the Supreme Court established the
severability doctrine. 388 U.S. at 402-04. This doctrine (with
certain    limitations)   requires   that   challenges    to   the
enforceability of the parties' agreement as a whole rather than
specifically directed at the agreement to arbitrate go to an
arbitrator. Id. In essence, it creates a legal fiction in which
the arbitration agreement is a separate or separable contract from
the underlying contract that is being challenged. See id.


                                     - 19 -
             The in-store plaintiffs disagree with the Container

Store's characterization of their own arguments.              They highlight

that the Container Store's motion only sought to compel enforcement

of the arbitration clause (and enforce class action waivers and

stay of the proceedings), and "Plaintiffs' opposition -- including

their argument that an agreement was never formed -- was directed

specifically at the [arbitration] [c]lause."              Therefore, they

insist they are challenging the formation of the arbitration

agreement.

             A close look at the heart of their arguments in support

of their objection to arbitrate reveals they are challenging the

very    basic   elements   of    contract   formation    relative    to   the

arbitration provision: i.e., offer and acceptance of same.                The

in-store plaintiffs primarily argue that they could not have

accepted the terms of a contract to arbitrate that was never

communicated to them.      See Dialysis Access Ctr., LLC, 638 F.3d at

378 (a challenge to offer and acceptance is a challenge to contract

formation).     Therefore, we reject the Container Store's attempt to

re-package Plaintiffs' arguments as one regarding validity of the

entire      agreement   rather   than   formation   of    a    contract    to

arbitrate.16


       16
        While Plaintiffs describe their challenge as a challenge
to the formation of the arbitration agreement, they also recognize
the broader implication (as the district court did) that "any
failure by Plaintiffs to consent would render the entire contract


                                   - 20 -
             Accordingly, we agree with the district court that it

was the proper forum to consider the issue. See Buckeye, 546 U.S.

at 443-45.

                          b. Contract Formation

             The essential elements to forming a contract pursuant to

Texas law include: "(1) an offer, (2) an acceptance, (3) a meeting

of   the   minds,   (4)   each    party's    consent   to   the   terms,   and

(5) execution and delivery of the contract with the intent that it

be mutual and binding."          DeClaire v. G & B McIntosh Family Ltd.

P'ship, 260 S.W.3d 34, 44 (Tex. App. 2008) (citation omitted).

There can be no mutual assent or meeting of the minds -- and hence

no contract -- if the one to whom the offer is supposedly made is

unaware of the contract's terms and conditions.             See Broadnax v.

Ledbetter, 99 S.W. 1111, 1111-12 (Tex. 1907); see also 64 Tex.

Jur. Rewards § 8 (3d ed. 2018).          And "[t]he offer must be clear

and definite just as there must be a clear and definite acceptance

of all terms contained in the offer."         Advantage Physical Therapy,

Inc. v. Cruse, 165 S.W.3d 21, 26 (Tex. App. 2005).


a nullity."   On that note, Plaintiffs argue in the alternative
that even if their argument is viewed as a challenge to the
formation of the entire agreement containing an arbitration
provision, the court was still the proper forum. Whether narrow
(just the arbitration clause) or broad (the entire agreement),
according to Plaintiffs, challenges to formation always belong
with the court. Because we agree that their challenge is to the
formation of the arbitration agreement, we need not reach this
issue at this time. We will, however, have to cross that bridge
when dealing with Plaintiff Lineback.


                                    - 21 -
             The Container Store -- which sought arbitration and has

the burden of showing that an arbitration agreement had been

entered into by the parties -- maintains that even if we decide

that   the    district   court   was   the   proper   forum     to   consider

Plaintiffs' objection to its motion to compel arbitration (as we

just did), it should still win on the merits because it has met

its burden and the district court erred in deciding otherwise.

The Container Store's argument is two-fold and we'll take each

argument in turn.

             First, it insists that the in-store plaintiffs were

aware of all of the terms and conditions of the loyalty program,

including the arbitration agreement, "[a]s evidenced by [its]

training     materials,"   which   indicate    that   "the    customer    is

affirmatively told of the existence of terms and conditions and

given an opportunity to review them."

             However, as Plaintiffs argue, the record is devoid of

any    evidence   that   the   arbitration    agreement   was    reasonably

communicated to the in-store plaintiffs and is also devoid of any

evidence that they manifested their assent to arbitrate during

enrollment.    The Container Store did not "suppl[y] any evidence to

contradict the plaintiff[s'] claim that [they] never read" or were

otherwise made aware of the terms and conditions of the loyalty

program.     See Campbell, 407 F.3d at 549.       It is undisputed that

the in-store plaintiffs had no way of accessing the terms of the


                                   - 22 -
loyalty    program,      including   the      arbitration        agreement,     that

appeared on the touch screen.          And it is uncontradicted that no

store clerk actually informed them that an arbitration agreement

existed as a condition of entering the loyalty program.17 Moreover,

the   Container    Store's     contention     that    store      associates     were

present    to   inform   the   in-store     plaintiffs      of    the   terms   and

conditions applicable to the loyalty program is unavailing without

any evidence that it was actually done.

            The Container Store's second argument is that the in-

store plaintiffs' inability to read the terms and conditions of

the contract offer (including the arbitration provision) is no

defense to arbitration. On that note, the Container Store suggests

that they had (at a minimum) constructive notice of the terms of

the   arbitration     agreement,     from     which   a   court      could    infer

acceptance.

            While we agree that inability to read is not a defense

to contract formation, see Villa Garcia v. Merrill Lynch, Pierce,



      17
       While Defendant maintains for the first time on appeal that
the store clerks did inform the in-store plaintiffs that terms and
conditions applied to the loyalty program, the only evidence
Defendant cites to support this assertion is an excerpt from the
training manual. But as the district court noted, the training
manual does not instruct the associate to inform the customers
what the terms and conditions are, nor that terms and conditions
even exist. Instead, the manual instructs the associates to give
the customers an opportunity to review the terms and conditions
that appear on the screen -- something Plaintiffs cannot
independently do (hence this litigation).


                                     - 23 -
Fenner & Smith Inc., 833 F.2d 545, 548 (5th Cir. 1987), at the

same time, a party cannot enter into a contract to arbitrate when

it does not know or have reason to know the basic terms of the

offer.     See generally DeClaire, 260 S.W.3d at 44 (noting that "a

meeting of the minds" on the essential terms of the contract is

necessary to form an enforceable agreement).                 Because all three

in-store plaintiffs challenge that they were ever aware of the

arbitration agreement, this case boils down to whether the terms

of the clause were so conspicuous that they nevertheless will be

charged with constructive notice of its existence.

            In    support    of   its    argument,    the     Container    Store

maintains    that   the     district    court    completely     ignored    well-

established law that an inability to read is not a defense to

contract formation.         The cases cited by the Container Store,

however,    are   easily    distinguishable.          They    involve     parties

entering into a contract (who later plead ignorance) when there

was a presumption that the documents signed described contractual

relationships     and   implicated      legal   rights   --   like   initiating

loans, employment, and being admitted into a nursing home.                   See

Soto v. State Indus. Prod., Inc., 642 F.3d 67, 77-79 (1st Cir.

2011); Washington Mut. Fin. Grp., LLC v. Bailey, 364 F.3d 260,

264-66 (5th Cir. 2004); Am. Gen. Fin. Servs., Inc. v. Griffin, 327

F. Supp. 2d 678, 683 (N.D. Miss. 2004).              There, the parties were

treated as knowing the terms despite being illiterate or blind


                                     - 24 -
because of the very nature of the agreements they entered into.

See id.   On the other hand, a duty to read did not apply in a case

where the arbitration provision at issue was buried in a "Health

and Safety and Warranty Guide" with zero hint that binding terms

would exist.    Noble v. Samsung Elecs. Am., Inc., 682 F.App'x 113,

116 (3d Cir. 2017); see also Sgouros v. TransUnion Corp., 817 F.3d

1029, 1035-36 (7th Cir. 2016) (agreement to arbitrate not formed

where TransUnion failed "to get the message through to the site

user that purchasing a consumer credit score means agreeing to the

Service Agreement").      Similarly here, there is "zero hint" that

terms and conditions (specifically, an arbitration agreement)

applied to the in-store-plaintiffs' enrollment in the loyalty

program.18

             Based upon the lack of any evidence that the in-store

plaintiffs    had   any   knowledge,   actual   or   constructive,   that

arbitration terms applied to their enrollment in the loyalty


     18 In support of its argument that Plaintiffs were on
constructive notice of the arbitration agreement, the Container
Store also cites to several cases in different jurisdictions
involving "clickwrap" agreements and the principle that a party
who signs an agreement is bound by its terms whether or not he
reads or understands them.     See, e.g., Momentis U.S. Corp. v.
Perissos Holdings, Inc., 2014 WL 3756671, at *2-3 (Tex. App. July
30, 2014); In re Online Travel Co., 953 F. Supp. 2d 713, 718-19
(N.D. Tex. 2013); Sanders v. Forex Capital Mkts., LLC, 11-cv-0864,
2011 WL 5980202, *3-5 (S.D.N.Y. Nov. 29, 2011); Swift v. Zynga
Game Network, Inc., 805 F. Supp. 2d 904, 910-12 (N.D. Cal. 2011).
However, the cases cited by the Container Store are again easily
distinguishable in that the contracting party had minimal notice
of the terms of the agreement -- either actual or constructive.


                                 - 25 -
program, we conclude that the Container Store failed to meet its

burden of establishing that an agreement to arbitrate was ever

consummated between it and the in-store plaintiffs.         See Norcia v.

Samsung Telecomms. Am., LLC, 845 F.3d 1279, 1285 (9th Cir. 2017)

("an offeree . . . is not bound by inconspicuous contractual

provisions    of   which   he   was   unaware");   see   also   Nicosia   v.

Amazon.com, Inc., 834 F.3d 220, 236-38 (2d Cir. 2016). Therefore,

the district court correctly denied the Container Store's motion

to compel arbitration as to the in-store plaintiffs.19

                                c. Illusory

             Next, the Container Store argues that the district court

erred in finding that the loyalty program agreement was illusory



     19 The Container Store further argues that the district court
erred in concluding that it was not appropriate to arbitrate
Plaintiffs' ADA claim because there was not a sufficient "minimal
level of notice" to Plaintiffs of the agreement to arbitrate. When
a party relies on the FAA to compel arbitration of a claim arising
under the ADA, the court must undertake a supplemental
"appropriateness" inquiry. Campbell v. Gen. Dynamics Gov't Sys.
Corp., 407 F.3d 546, 552 (1st Cir. 2005); see 42 U.S.C. § 12212.
A party may prevail on its demand for arbitration of an ADA claim
if it can establish: (1) that the provision for mandatory
arbitration is part of a valid contract within the purview of the
FAA; and (2) enforcement of the arbitration provision would be
appropriate (meaning, there is a minimal level of notice given to
the party being compelled to arbitrate). Campbell, 407 F.3d at
554-55.   Here, we need not reach the second prong requiring a
"minimal level of notice" (where the Container Store appears to
hang its hat), because for reasons just explained in this opinion
it fails to meet the first, i.e., establishing that the arbitration
agreement is a "valid contract." Therefore, the district court
was correct in denying the Container Store's motion to compel
arbitration on Plaintiffs' state and ADA claims.


                                  - 26 -
and therefore void.     The Container Store's illusory arguments (and

Plaintiffs' response) are directed to all Plaintiffs; however,

because the Container Store has failed to establish that it entered

into an arbitration agreement with the in-store plaintiffs on offer

and acceptance grounds (and Lineback does not dispute she clicked

accepting the terms and conditions), the issue of illusoriness is

homed in just to Lineback (the remaining plaintiff).

            In support of its argument that the district court erred

in   its   illusory   finding   --   a   finding    driven   by    the   court's

conclusion that the loyalty program's terms gave the Container

Store carte blanche to modify the terms at any time -- the

Container Store raises four distinct arguments, which we discuss

in turn, beginning with its contention that an arbitrator should

have decided the illusoriness issue given it is a challenge to the

entire loyalty program agreement (and not just the arbitration

agreement).      Naturally,     Lineback      disagrees   and,    in   response,

contends that we should not consider the Container Store's argument

that the district court should not have reached the issue of

contract illusoriness because (1) it was not raised in the district

court or (2) properly developed before us.                Alternatively, she

argues that even if we consider the issue, the district court was

the proper forum because (a) under Texas law, illusory challenges

go to contract formation; (b) she challenges the formation of the

arbitration agreement exclusively; and (c) absent the parties'


                                     - 27 -
contracting otherwise, issues of "enforceability or applicability"

of an arbitration agreement go to the court.

                               i. Forum

            In their objection to the Container Store's motion to

compel    arbitration,   Plaintiffs   argued   that   the   contract   was

illusory.     In its reply to Plaintiffs' objection, the Container

Store argued that it was not for three distinct reasons, but never

specifically challenged the district court's ability to consider

the illusoriness defense.20      In its brief to us regarding the

district court's consideration of the issue of illusoriness, the

Container Store argues:      "As a threshold matter, the arbitrator

should have decided this issue since this claim is directed at the

entire agreement, and not just the arbitration provision. The

'change-in-terms' provision indisputably applies to the entire

loyalty program membership agreement, not just the arbitration

provision."    Its discussion on the matter begins and ends there.

As noted, in Plaintiffs' brief they argue that the Container Store

has waived this argument by failing to raise it with the district

court or provide a meaningful analysis before us.           In its reply




     20 Its argument challenging the appropriateness of the
district court considering Plaintiffs' objections to the motion to
compel arbitration was directed at Plaintiffs' inability-to-read
defense. Plaintiffs' illusory argument is distinct.


                                - 28 -
brief the Container Store does not discuss waiver -- instead, it

focuses on the merits.

            An argument not raised to the district court cannot be

debuted on appeal.       McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 22

(1st Cir. 1991).         Therefore, the Container Store's failure to

challenge   the      appropriateness     of    the   district   court     deciding

Lineback's illusory defense to its motion to compel arbitration

(opting instead to simply discuss the merits of the illusoriness

issue) renders this argument forfeited.                    See id.      Forfeited

arguments      are   only   considered       for   plain   error.    Dávila     v.

Corporación De P.R. Para La Difusión Pública, 498 F.3d 9, 14 (1st

Cir. 2007) (citation omitted).         Plain error requires appellants to

demonstrate: "(1) an error occurred (2) which was clear or obvious

. . . (3) affected [his] substantial rights [and] (4) seriously

impaired the fairness, integrity, or public reputation of the

judicial proceedings."         Id. at 14-15.           Because we have yet to

decide whether challenges regarding the formation of a contract,

where arbitration is but one provision in that contract, should be

decided   by    an   arbitrator   or     a    court,   Farnsworth    v.   Towboat

Nantucket Sound, Inc., 790 F.3d 90, 99 n.7 (1st Cir. 2015), any

error of the district court in reaching the merits was not clear

and obvious.




                                   - 29 -
            Therefore,    the    Container    Store's     newly-articulated

argument    on   appeal   that   the   district   court   should   not   have

considered the issue of illusoriness fails.

                                 ii. Merits

            Container Store offers us three additional reasons for

reversing the district court's illusory findings: (1) the duty of

good faith and fair dealing renders the agreement non-illusory;

(2) Plaintiffs could cancel their membership in the loyalty program

at any time and so the contract was not illusory; and (3) even if

the change-in-terms provision rendered the contract illusory, that

provision alone should have been severed, not the entire contract

found to be unenforceable.       Unsurprisingly, Lineback disagrees.

            But before we address the Container Store's contentions,

a discussion of what constitutes illusoriness would be helpful.

Under Texas Law, an arbitration clause is illusory if a party to

a contract "can avoid its promise to arbitrate by amending the

provision or terminating it altogether."            In re 24R, Inc., 324

S.W.3d 564, 567 (Tex. 2010); see also Morrison v. Amway Corp., 517

F.3d 248, 257 (5th Cir. 2008) (reversing district court order

compelling arbitration because party retaining the right to alter

the arbitration agreement rendered it illusory and unenforceable);

Carey v. 24 Hour Fitness, USA, Inc., 669 F.3d 202, 205 (5th Cir.

2012).     As noted, a contract that is illusory was never formed,

because it lacked the necessary consideration -- in other words,


                                   - 30 -
there was never a bargained-for exchange.           "Where no consideration

exists, and is required, the lack of consideration results in no

contract being formed." 3 Williston on Contracts § 7:11 (4th ed.).

             Put   differently,     where   one   party   to   an   arbitration

agreement seeks to invoke arbitration to settle a dispute, if the

other party has the right to change the terms of the agreement to

avoid arbitration, then the agreement was illusory from the outset.

Id.   The crux of this issue is whether the Container Store has the

power   to   make    changes   to    its    arbitration   policy     that   have

retroactive effect, meaning changes to the policy that would strip

the right of arbitration from a party who has already attempted to

invoke it.    See Carey, 669 F.3d at 205.         A reading of the "Changes

to the Terms" provision answers this in the affirmative.                    This

section in the loyalty program's terms and conditions provides

that:

             We [,the Container Store,] reserve the right,
             at our discretion, to change, modify, cancel,
             add or remove any or all portions of these
             terms,   any   policy,  FAQ,    or  guideline
             pertaining to the [loyalty program] at any
             time. If any terms change in the future, we
             will let you know by posting an update to
             www.containerstore.com/pop   with  the   most
             recent modification date.     Any changes or
             modifications will be effective immediately
             upon posting the revision and you waive any
             right you have to receive special notice of
             such change.     By continuing to use the
             [loyalty program], you agree to the revised
             terms.

             . . .


                                     - 31 -
              [The Container Store] reserves the right,
              without limitation, to terminate, change,
              limit, modify, or cancel any [Loyalty Program]
              terms,    conditions,   rules,    regulations,
              benefits . . . at any time, with or without
              notice, even though such changes may affect
              the value of already-issued . . . benefits.

              Clearly,   based   on     the     change-in-terms   clause,   the

Container Store unilaterally retains the right to alter the terms

of the loyalty program, including the arbitration provision, "at

any time."      Pursuant to Texas law, this is a text-book definition

of illusory.      See Morrison, 517 F.3d at 257.            Moreover, because

Texas law treats illusoriness as an issue regarding consideration

needed to enter into a contract, the presence of an illusory

agreement therefore indicates no agreement to arbitrate exists

between the parties.

              The three arguments made by the Container Store in an

attempt   to      challenge      the     district      court's    illusoriness

determination are not persuasive. First, while the Container Store

argues that the duty of good faith and fair dealing renders this

contract not illusory, it provides no legal support pursuant to

Texas   law     for   this   proposition.          Other   jurisdictions    have

recognized that the duty of good faith and fair dealing "limits

the authority of [a contracting] party retaining discretion under

the contract" and that this alone "is enough to avoid the finding

of an illusory promise."         Fagerstrom v. Amazon.com, Inc., 141 F.



                                       - 32 -
Supp. 3d 1051, 1066 (S.D. Cal. 2015).       But the Texas cases the

Container Store cites -- Cleveland Const., Inc. v. Levco Const.,

Inc., 359 S.W.3d 843, 853-54 (Tex. App. 2012), and Budd v. Max

Int'l, LLC, 339 S.W.3d 915, 918-20 (Tex. App. 2011) -- say nothing

about good faith and fair dealing and so offer nothing to back up

its lead argument.21

             Similarly unconvincing is the Container Store's argument

that the contract cannot be found to be illusory because Plaintiffs

can terminate the agreement at any time.    We agree with Plaintiffs

that their "ability to cancel their [loyalty program] memberships

does not 'prevent [Defendant] from retroactively eliminating its

arbitration policy, which is the critical inquiry for determining

whether an agreement is illusory."

             Lastly, the Container Store's argument that any illusory

provision of the contract could simply be severed and the remainder

of the contract stand would require us to engage in an absurd

process.22     In essence we would be reviving a contract we have

found was never formed for its lack of consideration, omitting the


     21 Which perhaps explains why the Container Store cites the
Southern and Eastern District of California, the Eastern District
of New York, as well as both the Second and Eighth Circuit.
     22 The loyalty program agreement also contains a severance
clause.   The clause provides that "[i]f any provision of these
terms is found to be unlawful, void, or unenforceable, then that
provision will be deemed severable from these terms and will not
affect   the  validity   or  enforceability  of   any  remaining
provisions."


                                - 33 -
change-in-term clause that was fatal to the contract's proper

formation, to therefore conclude a contract was formed. Because,

again, pursuant to Texas law the issue of illusoriness goes to

formation (and not to validity or enforceability), we think this

would be an inappropriate exercise.

              We therefore also affirm the district court's order

denying the Container Store's motion to compel arbitration as to

Lineback because no agreement was formed between her and the

Container Store relating to her enrollment in the loyalty program.

                               d. Ratification

              Lastly, according to the Container Store, Plaintiffs

received an email following their enrollment with the terms and

conditions of the loyalty program.           It maintains that the district

court erred in rejecting its argument that by continuing to

participate     in    the   loyalty   program,    Plaintiffs    ratified    the

agreement.

              While a party may ratify a contract to which it otherwise

was not bound by reaping the benefits awarded in a contract's

terms, Rennie v. Mut. Life Ins. Co. of N.Y., 176 F. 202, 206 (1st

Cir. 1910), we agree with Plaintiffs that the Container Store has

not   shown    how    Plaintiffs   benefited     from   the   loyalty   program

following their initial enrollment.              Moreover, while there was

testimony      that    this   email    was     customarily    sent   following

enrollment, the Container Store failed to present a copy or sample


                                      - 34 -
of the "welcome" email containing the arbitration terms, or of the

monthly promotional emails that also contained the provisions.

                                     CONCLUSION

                For the reasons discussed above, we affirm the district

court        order   denying   the   Container    Store's   motion   to   compel

arbitration.23

                Affirmed. Costs to Appellees/Plaintiffs.




        23
        We need not decide the issue of whether the agreement was
unconscionable, since we conclude that no agreement to arbitrate
was formed. See Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 63, 67
(2010) (reversing Ninth Circuit's determination that when "a party
challenges an arbitration agreement as unconscionable, and thus
asserts that he could not meaningfully assent to the agreement,
the threshold question of unconscionability is for the court").
Similarly, given we are affirming the district court's denial of
the Container Store's motion to compel arbitration, we need not
address Defendant's argument that we should stay the district court
proceeding if any of the plaintiffs are compelled to arbitrate.



                                       - 35 -
