struck there is no sufficient proof of contract formation yes you can't say anything on the issue over the contract formation if it's a disputed issue was several presented is a question for the court that's she also goes to contract formation because when there is analyze and her massachusetts lot more texas law which are the only two states that could potentially i are not house or near new york law as defendant up there under i was there massachusetts or texas off the question is whether there was consideration if there is an illusory promise a promise that one party can revoke or at modify a time then there is no consideration and that is the case with respect to the container store as agreements to arbitrate the container store says that change of terms provision and the terms and conditions says we reserve the right at our discretion to change modify cancel out or in any or all portions of these terms at any time and there's another provision further down in the terms and condition that any other customer at the container store for that matter could rely upon i'm asking separation print ads agreement to arbitrate and that means that if you look at that kerry versus twenty four hour fitness case out of the fifth circuit which analyzed this issue under texas off on it the problem isn't whether or not notice is provided here in one hundred and are there some ambiguity in the contracts in one place that said that they will provide notice on their website and another provision  says they can make any changes or eliminate the terms with no notice but it doesn't matter whether there's no one is it also doesn't matter as the container store has maintained in its brief that the plaintiffs here had an opportunity to cancel because of agreement to the terms doesn't change the map that the container store has the ability to change the terms part way through the game and even metro actively that's what the fifth circuit helped to be dispositive in carrying  about whether the specific agreement to arbitrate exists and even if the the dow in fact the confirmation question such as the issue of whether or not the container store met its burden of showing that any of the in store plaintiffs make of the cholera lisa irving or arthur jacobs have constructed notice of the arbitration even though that goes to the contract as a whole which is what we were speaking with council about that still calls into question whether the specific arbitration clause was ever formed and just because the contract formation question sweeps more probably angles to the formation of the entire contract that doesn't change the fact that figuring out whether or not the the agreement to trade is formed will always include the question of contract formation so in other words granted provides a threshold question that the court has to resolve any thing going to whether the contract as a whole is formed if you get past contract was formed under duress so the reason that arbitration provision and when you look at specifically the arguments with respect to lack of notice but mr collins irving and mr jacobs sad when they said that they had no idea this was being offered to them there's there's a lot of discovery that was going on before the district court battle that before the district court stayed all those proceedings pending this appeal and so it certainly hasn't hasn't been agreed that defense position that they remed disagree with that and that's something that this court remands back to the district court to proceed on the merits will try to get to the bottom of what exactly defend its obligations are and what do they still need to do in order to give scandal that scripture and that's what makes it ironic that the container store is trying to benefit from its own noncompliance with those federal and state law by t to hold the plaintiffs to the terms of a contract in which they have no notice and now is that the entire thrust of their opening brief was that you know this this happened at the point of sale even though it is your honor pointed out there's nothing in the record about what the cashier ways other district court and state court cases where terms were sent in the mail to people and one needs to involve terms that were sent by email a case out of the district of connecticut involving direct heat in all of those cases the protection plan or in the directv case with the e mail there was a pending you know extensive record about the transcript of the phone conversation with the players we're told over the phone that the entire text of the contact provided no we don't have anything like this here all we know is that there was an e mail that the plaintiffs received at some point after they enrolled and that included a link to the terms and conditions so by you know in france we can assume that the phone terms and conditions were not contained in the now because the declaration says that there was a link to them on and that you know again missed it to you know comparing this to camel versus general