concludes that the plaintiff has properly made a separate challenge to the delegation provision of a delegation provision should be enforced without further action because there is no dispute that a process between the two parties was concluded that includes the document at issue john when the more detail and then finally and third if the court does reach the issue of whether there was acceptance offer acceptance in consideration under missouri law the court should this court should reverse the the order of the district court with a review of the record and specifically the document in question counsel you know in your framing i think you've got at this but i want to ask about it directly in some ways this this case presents sort of a chicken and egg problem which is that what governs here do background principles of law govern in the sense that you need to have offer acceptance consideration before the delegation or the arbitration provision isn't forcible or does the delegation provision which says that the formation the contract including offer acceptance consideration goes to the arbitrator to decide but i'm trying to figure out how how to take two preliminary sort of aniseed points and blend them together and that's i think the difficulty in this case i think that's the key question in the case and i think if the law works clear on that we probably wouldn't be here but i think but no two in the rent a center case the supreme court in a center case provides a clue because it talks about the difference between the validity of a contract which the court may not have the authority  delegation pridgen versus whether a contract was concluded it doesn't say formed which formation issues can be delegated to the arbitrator it says concluded right so i would go somewhere in between there what does that mean formation versus conclusion well contract formation issues are what we're talking about offer acceptance consideration those are very typical contract formation issues and both are rennison or case the pinkerton case decided by the missouri supreme court and the recently decided source versus easter seal case in the missouri supreme court all make it very clear that formation issues can be delegated to the arbitrator this if they're properly included in a delegation provision the problem i'm having with this is the supreme court is also repeatedly said in cases like eighty versus concepcion that general contract principles apply i mean the federal arbitration accepts that and so i guess my question for you is if general contract principles apply shouldn't we need offer except in some consideration before we ever get to the question of whether there whether the delegation provision of the arbitration provision are valid in other words if they never agreed at all to go to arbitration because they didn't agree with the contractor those provisions isn't the case over under generally applicable principles i think without the delegation provision that's definitely true i think the footnote in the arena center case that talks about conclusion gives a little different view and that there's no dispute in this case that there was a process that was concluded there's no dispute that that process involved an act by the company of presenting this series of documents to all of its employees including the shockley and act by ms shockley of going through the process that was required and looking at the end of the process clicking the icon that made the count so if you're going to say click i got to tell you i'm sure as i understand ms white's in that that's your that's our best evidence rights mishap bites evidence that has a clicking works you don't have to ever click on this arbitration right you click through for superior at the margin icons and you never ever get to the arbitration right one of the icons that you're required to click on is is the prime lending handbook at the end i'm and when you do that there's a pop up that comes up with a link that allows you to open the entire we have two opportunities in this process to open the entire twelve page preview if you don't click on that you never see it you and you get to check out without ever seeing if you can along with many many other cases and force you know they call it browser wrap agreements where you're never required to click on the actual terms and conditions in order for them to be enforced well and there's a there's another issue here which is my understanding of the way this work is not only do you specifically click not specifically click on the delegation provision but you just say that you've reviewed it kind of like you know employees have to review you know a policy or something like that you have to say i accept the terms and conditions of any of the things you're clicking that's correct by clicking in the n b a employee of knowledge is that they've completed their review of the policies so whether she remembers reviewing it or not she's acknowledging that she's reviewed it there's no also no dispute that part of that process includes a document that has contractual language in it it's not a suggestion and i agree it's the contractual language you refer to it's it's in the arbitration clause and it says i agree with the company you and the company agree to and that's one of the factual errors in the district court's opinion the district court said no  the issue of the ability of the company to change the handbook but there is an eighth circuit case on point tenant first tenet healthcare patterson versus tenet healthcare there is virtually no difference i think it is the most similar case to this case it's based on missouri law the arbitration agreement was included in the handbook that handbook included a provision that applied to the whole handbook unlike this handbook that says nothing in this handbook creates a contract it also had a provision right before the arbitration agreement s ys basically the company can amend or alter any of this and the court concluded that the arbitration agreement stood alone because the arbitration agreement was different in tone and language from the rest of the handbook and and it in forced the ark this court enforced the arbitration of even in that case despite the fact that it was included in the handbook we agree that simply issuing a handbook is not contractual however when the handbook includes something that is  both you and the company agree to arbitrate claims final and binding arbitration we brave our right to a jury trial or a judicial trial and we agree to end it there to delegation provisions but beyond that the language is contractual so your argument is that even though there is that language about the company being able to unilaterally change the agreement it doesn't apply to the delegation provision because it has contract the delegation provision as contractual language that cannot be changed the whole arbitration agreement has been tracked to language that i would argue if the if the company attempted to change it retroactively this contractually binding agreement that would be a an improper attempt to alter the arbitration programme first we didn't do that and second of all it would arguably be a breach of the good faith and fair dealing duty in any contract this is a contractual provision that much like the provision in patterson versus kind of health care is not subject to any provision in the contract that says the company can change things of course in that case the person really so like at most she reviewed the hold deal and click through and if you read the quoting paragraph paragraph seven it sounds like you never have to click on any of this stuff you're not required to write and that's that's not a requirement she says she didn't remember doing it but just record you put forward nothing different on that you know what the district court said she doesn't recall and you put forward nothing different so what's what's the big deal that she is not rich that's not a contractual requirements not a legal requirement that someone actually review the document i mean they're to special if you say reviewed it but i understood it right that clicking on the actual document although she had two opportunities to do that here is not a legal work out our first initial chicken and egg case does our nebraska machinery case i think we say in plain language that before compelling arbitration a court must first determine whether a valid arbitration agreement exists doesn't that bind us on the chicken egg issue and first we have to determine what is an agreement and not go to the delegation like you want to set it up   there was as an act by the company of presenting the document there was an act by ms shockley of going through the required process there's no you know she doesn't recall doing it but she doesn't say she didn't do it she doesn't recall doing it haven't you got no though that instead of having to click through having reviewed it supposed that the employees told the employee handbook is available in the h r office or in a manager's office and that's that's it and you'd have the exact same employee handbook would we be enforcing the delegation clause under those circumstances i agree if there was no act by miss shott and there are many cases that say simply issuing an employee handbook if you send out an e mail to your employees and say hey come  would submit that this must be a threshold as strict for the district court to determine if there is no concluded agreement to arbitrate the f a a should not even come into play and we wouldn't be discussing a delegation provision in this case the district properly determined that there was no concluded agreement between the parties as there was no offer or acceptance and we've also asserted there was no consideration but even if the court adopts the outlines as proposed by prime lending and i think skips to the second step outlined and run a center and buckeye deploys in this case properly challenged the delegation provision i think we first have to look at the f a a the purpose of the federal arbitration act was not to rewrite the law on contract but simply intended overcome judicial hostility to the arbitration process we didn't throw away a traditional contract clause we didn't modify the constitution to say that parties don't have a right to be heard by an article three judge concept is the parties have to agree i would posit that this case really kind of falls to granite rock company and we decided that case and page twelve and thirteen of our brief granite rock interestingly is decided three days after renaissance by justice thomas and in granite rock the question was when was the contract formed because the date the parties disagreed about when they'd actually reached the agreement impacted whether or not the arbitration agreement was was critical and justice thomas writes again confirms that arbitration is a matter of contract and he's saying in this case that we were not intending in buckeye or rent a center to override the principal concern that a court can only submit to arbitration those per those agreements the parties agreed to so i don't think in granite rock when justice thomas says look the question of when a contract is formed was properly for the district court because it went to whether the parties agreed an agreement we don't get to the f a a so i believe the united states supreme court consistent with the brass commissioner e i said the first question is is there concluded agreement between the parties now how do we define concluded i don't think that's defined i do agree if the only thing i might agree with those in council on is that it's a little murky and i would posit that maybe the line we need to draw is have the elements of a contract and met as a practitioner if i'm going to file a breach of contract case in a court of law and i'm going to say there's a contract in the state of missouri i have to show there is offer acceptance and consideration never make it to the next hurdle unless i show those three things then i have a concluded contract now somebody can come in and take objection that i have met those three elements and then i think that's going to be an issue for the district court or they can come in and say you know what there is a question about whether this contract was formed under the duress of fraud or perhaps a violates public policy i think of those more of affirmative defenses that you would plead you haven't met conditions preceding to enforce this agreement and in those circumstances that's when we could agree if we have an agreement to delegate questions to an arbitrator and get it all comes back to i have to have an agreement to go to arbitration first and foremost and so i think that framework is exactly what this court has already decided in nebraska machinery and what judge whipple applied in this case the first question is has a going to agreement between the parties been concluded so take us through then the elements i mean i think that that's the nub of the cases offer acceptance consideration and you're not opposing counsel go through those what what's your view of the the case so i'm misery black letter law is generally a handbook doesn't constitute an offer and i don't hear defendant up here saying that every single document my client reviewed creates a binding contract between his client and my clients and his client would probably scream bloody murder if that was the case there is a general rule for reason policies are not typically contracts so in missouri courts when they want to make an offer there has to be a step more and if you look at the cases cited in the brief a lot of times there was a rip out sheet of paper from the handbook where parties signed a separate arbitration agreement it was a different type of bold faced documentation one case allowed an opt out procedure so go ahead review our documents and then if you don't like it if you don't want to understand that this it was a contract and the court found that in this circumstance under the factual information the handbook was provided for informational purposes post supposed to click through said i have reviewed all of the documents and i accept all of the terms and you click baton with regard to the employee and book i absolutely think i have a tougher case to enter here and i may be there some other circumstance but i think it's very common in our electronic age that we can do an electronic signature we can accept we can agree my clients just simply review documents and so in my mind that correlates to me as a lawyer i get a settlement offer via email from opposing counsel and i confirm with them i have received and reviewed your offer and that's all i say i guess my point is doesn't this make for a hard case i mean you might have a good case on acceptance because there's no there's no acceptance but on offer i mean it's kind of like being at the opera you get from the other side it seems like they were trying to make an offer they just didn't have at least under your theory a mode of communicating the acceptance on your own the party or cry i think it's a vote i think when you're reviewing a handbook that the very first sentence in the handbook says this is our policies and procedures and they are subject to review and change i struggle to how my clients are supposed to intercept that certain paragraphs of this i mean in the same document there's policies on vacation pay and breastfeeding and time off and they're supposed to extract that a couple pages of this document constitutes a contract and the rest of it doesn't there's nothing in that interest sentence that excludes the delegation provision or that excludes the arbitration a provision now i think of prime lending had wanted to make that paragraph not apply to the arbitration clause or were delegation provision i think they could have modified that sentence to read something like everything in here is a policy subject to change our will with or without notice except for the arbitration clause in delegation provision and we are you know agreeing everybody's going to be bound by this you could have rewritten that language but that's that's not what happened here so i  do struggle a little bit with that language i think acceptance is the stronger argument i think we turn contract law on our head if we if simply reviewing a document equates to acceptance without anything more and in this case there was nothing more they got certificates that they had completed a review to me those certificates look more like my my client's understanding that they completed the class but i think the court in this case gave the benefit of the doubt and said look at best the evidence this factual finding is that your clients reviewed the document and legally is simply reviewing a document sufficient to create a contract and i respectfully suggest the answer is no and i don't think that the defendants have provided any argument or evidence to overcome the district court's factual are clearly erroneous with respect to offer except in consideration i think the court alluded he was not going there but i do think there is a lack of consideration what about continued employment counsel the berkeley case they're sticking around here you agree to everything well i think that continued employment is not a consideration but i think that's not the really even the issue in my mind on this case it is the lack of mutual pro modified amended or deleted by the company at any time with or without notice now isn't enough here today and saying oh no we're not going to change it but how do my clients know that i what point does it get to change and i would actually posit the well had been changed right there's no by i don't know whether i mean i don't i don't think it's appropriate that they modify it but some of the arguments we've presented asking judges to make determinations of questions makes me think that there's twice in dyson who were delegating certain issues to and and i understand it and she would have been fired or considered for firing or anything like that if you didn't complete this stuff there were not told anything like there's no evidence in the record that they were advised that this was a contract that they had to accept in fact if you look i'm in the appendix and i can try to find that page for you are we have the offer letter that our clients received and it was very much here's your offer and bottom of that they had to check a box that says i accept employment and sign off on it very traditional nothing in that document that size part of this is going to be a  i there's nothing more required and i would respectfully disagree with that if we're going to pull out language use we have to pull out everything that kind of gives us the sense of a contract and it typical setting i would call out the signature lines of course we don't have those here  know in a standard contract you might see the intro clause that has names of the parties the date they enter their agreement i would i would say you've got to pull out that again we don't have that here so maybe you pull out the interesting handbook addendum which at least identifies prime lending c e o and its employees and i think it might have a date on there but i think you're also to pull out the boilerplate provisions that apply to the delegations laws and so that would in fact include this provision where they agree to modify it don't agree to bound by it at any time additionally just one kind of final point that was never even reached by the district court we did argue directly that the delegation clause was improper in fact if you look at the pending we filed a brief completely on the delegation clause we didn't even move on anything else the court ordered us to file all of our arguments against we filed an amended brief that addressed the delegation clause arguments as well as the are you talking arbitration agreement and we had argued in addition to the fact that there was no agreement to a concluded there was no agreement to delegate there was no agreement to arbitrate that the terms of the delegation clause were unclear complex and beyond the understanding of a lay person and therefore unconscionable that the core never reaches that argument if if for some reason the court's order is not affirmed in this case that issue i think should be taken up by the district court because we did we did make other arguments to the delegation clause if ariel further questions that is all i'm hearing is that formation issues like offer acceptance and consideration can never be delegated to the arbitrator and that's not the law that's not run a center says it's not what the two missouri supreme court cases say pinkerton and stores say that formation issues specifically can be delegated to the arbitrator now i agree if prime lending just wrote arbitration delegation on a piece of paper and waved it in front this court with no evidence that there was ever any presentation of that document to or action by ms shockley with respect to that document you know that's that's something that court could say i'm a shock we didn't even participate in anything here but that's not the case here here if there's any case where formation issues should be delegated to the arbitrator is that case because there is no real dispute that there was a process that was completed that involved the company presenting the document and to miss shockley whether she clicked on it or not they presented it to are two different times in this in this process she clicked at the saying she had read it and there's the language i reviewed is the language and says i agree it's and she's read it and the language that says i agree is actually in the document it's the document says you in the company agree to attempt in good faith to resolve the cover dispute exclusively through final and binding arbitration for all covered disputes both you and the company waive their right to trial by jury or before a judge in a court of law that's that is one of the errors in the district court's opinion the district court said contractual language is not present and the language that i just read you on with some other places in the arbitration clause is present i want to talk about the other error it's very clear error in the district court's opinion which is the district co points out in the play of continues to rely and her appellate brief on this idea that the handbook at the end and did not itself denies contract formation and that's not the case the denial of contract formation the cited by both the plaintiff and the district court is actually on the page before the arbitration clause and it applies only to the progressive discipline process it says this process does not establish a contract there's nothing at the beginning of the handbook says nothing in this handbook is a contract i think that actually helps us more than it helps the plaintiff because it implies that perhaps other provisions such as the next page where it says i agree are intended to be contractual in nature i see that i've got time so i'll sit down and list any further questions mr russell