had pointed out there was no evidence that any of them had agreed to the two thousand and sixteen policy or even knew about its existence and nd the district court erred when it treated that dispute about the twenty six thousand policy as a question of it's in force ability and applicability instead of what it actually was a question of whether an agreement between the parties was ever concluded united health care had the burden of coming forward with evidence that each of the plaintiffs agreed to the two thousand and sixteen arbitration policy but the record is devoid of any such evidence there is no electronic acknowledgement as to any of the plaintiffs and sixteen policy that they reviewed it and accepted it as there is for all of the plaintiffs with respect to earlier versions of united healthcare is policy instead the only evidence how the policy was issued or what notice any of the plaintiffs had of its issuance united health care points out that each of the plaintiffs continued working for united health care after january  but under new mexico law specifically d r mn vs halliburton there can be no proof of acceptance by performance without a showing that the offeree had actual knowledge of the offer and of the invitation of acceptance by performance and there was no such showing here to the contrary that that any of the plaintiffs knew about the two thousand and sixteen policy or any of its terms including the brand new delegation clause that was not present in any of the earlier versions of the agreement and these questions about whether there was an offer and whether there was an acceptance go to what congress in the federal arbitration act referred to as the making of the agreement to arbitrate and under section four of the f a congress requires that a court satisfy itself that the making of the agreement to arbitrate is not at issue before compelling compliance with that agreement or enforcement of that agreement and the district court here did not satisf itself that an agreement was made instead it punted that issue it delegated the questions that the plaintiff had raised about whether you know the fact that there was no evidence that they knew about or greed to the twenty six thousand policy because there was a delegation clause but the problem is that that delegation part clause was part of the very agreement whose making was in issue and therefore it was the court's responsibility to decide that question and in violation of guidance from the u s supreme court about the distinction between some questions that can be delegated to arbitrators and other questions that cannot in rent a center versus jackson which the district court relied on the supreme court made that distinction clear it said that that opinion was concerned with challenges to the validity of the arbitration agreement and then challenges to the validity of a delegation clause imbedded within that arbitration agreement and in footnote two of the right of center opinion the supreme court said that these questions of validity are different from the question of whether an agreement between the parties was brotherhood of teamsters opinion when he described questions that are usually decided by a court questions like the scope of an agreement to arbitrate or its enforceability but that can be delegated to an arbitrator when there is a valid provision specifically committing them to the arbitrator but after explaining that category of del of the ball questions justice thomas went on a page to ninety seven of the granite rock opinion to say that the question of whether the clause was agreed to is always for the courts to decide in the years since rent a center and granite rock were decided many federal appellate courts have looked at this and have decided and have explained that questions of whether an agreement was ever formed cannot be delegated to the arbitrator specifically last year the nd circuit in doctors associates versus a lemon again who said that the question of whether the parties formed an agreement to arbitrate in the st place cannot be delegated later that same year  the th circuit in berkeley county school district versus how the international agreed saying that these questions as to contract formation go to the making of an agreement to arbitrate under section four of the f a a and are always for the court to decide including when a delegation clause is present and the th circuit has reached this conclusion on several occasions including in the qabala case that was cited favorably by this court in the unpublished opinion of fundamental administrative services versus cohen even though that decision was unpublished it reached the right result it based its opinion on well reasoned decisions from other courts of appeals and it  consistent with the f a a and with binding supreme court precedent the district court misunderstood this precedent and would benefit from the court's guidance on the question of how delegation clauses intersect with the court's fundamental responsibility to decide if an agreement was ever made because the district court erred in conducting this threshold question and answering this threshold question we would ask that the opinion below be reversed and because there is absolutely no evidence in the record that the united healthcare did communicate these terms to the plaintiffs and that the plaintiffs did agree to them in tw sixteen we believe as a matter of law that the order compelling arbitration should be reversed and the case should continue on the merits of plaintiff's wage and overtime claims however if the court is not inclined to reverse as a matter of law we would ask instead for a remount for a trial or an evidentiary proceeding under section four of the f a for the court to determine in the st instance whether an agreement to helpful with respect to the jury reserve seen or remaining it wouldn't necessarily go to a trial would it the do what it's required is for the district court to st determine that there is an actual issue about formation correct it's correct that the district court has to determine if there is an issue of formation judge mchugh and we believe that the plaintiffs have raised that issue of formation when they stated in their opposition to united healthcare is motion to dismiss at page two hundred and forty one thousand two hundred and forty four of the appendix that  sixteen agreement was posted prominently on the employee web site and where it would have been seen by a please every day and they continued to work and therefore there's no issue about contract formation the district court could look at that issue st before immediately impaneling a jury couldn't it yes your honor certainly the district court could hold enough attention or hearing and hear from the parties  what evidence they have about how this policy was communicated to the plaintiffs in two thousand and sixteen again you know not to be redundant but it's our position that you know health care has an opportunity to present that evidence  the st instance and didn't do so and you know shouldn't necessarily benefit from getting a nd bite at the apple here but certainly would be that within the district court's discretion to hear evidence on that matter i don't have any more question c to enforce arbitration agreements at least within the th circuit that several other courts around the country have found to be illusory that for courts to in inforce those provisions despite the fact that it had a unilateral right to modify or amend the arbitration clause even after a claim had accrued under it another way in which would expand sees rights if it could go ahead and sort of in force earlier agreements that it didn't that the district court did not allow it to enforce is that it could enforce those provisions against former employees who left u h c employment before january th seen when this new arbitration policy that we've been focusing on here today went into  effect currently everyone who is putative opt in member of this class continued working at united health care after january of twenty six scene but there certainly could be members of the class who have not yet opted in or who would be part of the the rule twenty three class under new mexico law who stopped working for united health care before the two thousand and sixteen policy allegedly went into effect and then they would also be bound if the earlier agreements for enforceable a rd way in which she has rights would be expanded if it couldn't force the earlier versions is that the earlier versions are actually different in other respects between the sides the addition of a new delegation clause for the st time in two thousand and sixteen specifically with respect to attorneys fees there is a provision allowing united health care have its attorneys fees covered by claimants council if the arbitrator deems the claim to have been frivolous and that because that language appears at appendix so even under the contracts themselves you know health care has additional rights under the earlier agreements that it would not have under the twenty six health care services i think this quarter from the district court for several independent reasons what i'd like to briefly do is summarize those reasons and go on to live in more detail and st and foremost and it's something that my colleague did not address and her  opening brief which which they admit to let alone many discussion means she waived the argument here at the court of appeals with respect to the in forced into the delegation provision the district court followed ran the center west scroll it's before preceden and properly apply the delegation provision and they characterized the dispute as one over uplift ability in their force ability and that's exactly what it is that was the argument that palin made at the district court that is how the are issues that the court did not addressed which would allow for those agreements to be enforced st and foremost and this is not something that was addressed in the opening statement by my colleague those agreements include the aaa rules and  this circuit has held that incorporation of the aaa rules means essentially a clear and unmistakable agreement that the arbitrator decides gateway issues so while at the different court level even though we moved on the two thousand and sixteen agreements a palin spent most of the time focusing on agreements that were really there more for conflict and for force ability we now in the alternative asked that if the court were not to enforce a two thousand and sixteen agreement subject to the aaa rules and the rule six a with six akes use made which requires that the arbitrator decide those issues in the st instance so in the alternative your honour's to the extent that two thousand place additionally and in in the alternative there is a nother source of consideration that the consideration of new employment which was not considered by the court below which would be another alternative basis to enforce the a agreement and then lastly your honor even the offer letters accompanying the the st agreement which were sam to all these individuals the palance and often plaintiffs are themselves in forcible arbitration agreement so if i may i'd like to start and going to live in more detail about the issue of the waiver because the significant part of our argument we cite to numerous ten circuit cases including rock below arguing about the previous agreements which we were not moving to compel instead of addressing two thousand and sixteen it's critical to understand your honour's that while we actually submitted a detail declaration which i get into in just one second they did not submit any declaration instead of they sensually blew off our arguments to establish the existence of the arbitration agreement just said these are very relevant these do not apply never once below do they mention the issue of formation now of the court of appeals or briefing is consumed with this idea that well this is not a properly formed agreement but they never made that argument below rather they made the argument that this is the relevant this is invalid and judges vasquez below properly understood their argument if any argument to be a challenge regarding uplift ability and in force ability which is why the judge also recognized that they never challenged the delegation clause going back to these and by the way your honor we contend that they waive the argument that we contend they waive the argument because they made another augment they easily could have made forfeited the right are we waived we don't think it's a forfeiture but get to that we are arguing that they waived the right to challenge the formation of the two thousand agreement as compared to the issue of validity or enforce arbitration policy was irrelevant was quote because there is no evidence that any of them signed read or even knew about this policy to me that's the exact same argument  and before you respond let me also point out that the sole grounds relied upon by the district court in compelling arbitration in it was the th policies delegation delegation clause which was invoked by you for the very st time and united health care reply brief in the district court so there wouldn't have been any opportunity for them to respond the issue as one of whether or not the two thousand and sixteen arbitration agreement is valid and enforceable and that's a logical approach because that's exactly what appellants argued below your honor they never use the term from ation and they say it's irrelevant you're on i want to go back also to the issue of the formation which we did prove wrong and that is we proved under the mexico law by virtue of the sprout declaration which they say is inadequate we january st of each year by issuing a new agreement and that's exactly what we did so that is proved up in multiple parts of the declaration in order to understand the two thousand and sixteen issuance which counsel through the declaration we've proven that these individuals in some cases more than once it's signed off on agreement saying that united healthcare have the right to amend modify making and then analyze whether or not there was a delegation provision within the agreement once it determined that there was not a delegation provision the court took it upon itself to decide  health care the cases that my colleague sides for the proposition that formation is never for the arbitrator are do not stand for the proposition she stay for in those cases b e and ran a center for court simply said there are differences between force ability issues and formation issues we are not the siding formation issues today and that's an issue that the that i can go on to discuss some other issues regarding the alternatives i think that's clear in our briefing are there any questions that i can answer in furtherance of our arguments so before it's sort of a thank are for the court to decide but you do not is that correct do you think formation issues can be for the arbitrator yes you are we do not concede that we don't think they made the formation argument and we don't think the issues before the agreements so we never asked to force it so in that respect there was no basis for across a deal with respect but i don't know that i completely understood one of the other points and my colleague had this idea that now the court would be enforcing agreements that had not been enforced in other courts again we're making a different argument and the fact that other district courts didn't foresee would not be a reason for this court not to or from an alternate basis it certainly would not be a basis for this allow for the corporation of those rules and then shouldn't force it on the sole basis even in addition other bases that the if you are of consideration whether that be new consideration or consideration its use has to be decided by the formation question saying that they had met the elements of contract formation underneath mexico law and walking through those elements of contract formation so certainly the argument was well understood and so was presented to the district court clear in footnote to the thing in a subpoena and address questions about whether anything this between the parties that ever concluded that's the type of question that plaintiffs raised below when they said there was no evidence that the funniest knew about this agreement of course in this case the whole contract was an arbitration agreement but it also goes to the making of the delegation clause which is an embedded arbitration agreement within the larger arbitration agreement and if there was no offer to