Ensuring Mutual Assent in Arbitration: Parisi v. GreenSky Clarifies Contract Formation

Introduction

The Tenth Circuit’s decision in Parisi v. GreenSky (10th Cir. 2025) addresses a fundamental threshold in arbitration law: whether a valid arbitration agreement was ever formed. Plaintiff‐Appellee Susan Parisi sought home‐window financing under a “Zero‐Interest Loan” advertised by Renewal by Andersen (“RBA”) and underwritten by GreenSky, LLC. After Parisi discovered she had been bound to a high‐interest loan she never intended, she sued RBA and GreenSky for deceptive practices. Both defendants moved to compel arbitration, invoking clauses in two distinct documents: a “Windows Contract” emailed by RBA and an “Installment Loan Agreement” mailed by GreenSky. The district court denied both motions on the ground that no valid arbitration agreement was formed. On appeal, the Tenth Circuit affirmed, holding that, under undisputed facts, no reasonable jury could find mutual assent to any arbitration clause.

Summary of the Judgment

The court consolidated two appeals—GreenSky’s (No. 23‐6218) and RBA’s (No. 24‐6043)—from the Western District of Oklahoma, which had refused to compel arbitration under 9 U.S.C. § 4. The Tenth Circuit reviewed de novo, applying federal arbitration‐act standards together with Oklahoma contract‐formation principles. It affirmed both denials, concluding:

RBA never formed a valid “Windows Contract” with Parisi because essential terms—most critically the financing terms—did not reflect a “meeting of the minds.”
GreenSky failed to show Parisi ever manifested assent to the “Installment Loan Agreement”; the lone transaction via the “Shopping Pass” was initiated by RBA without her valid authorization.
Because no arbitration agreement was ever formed, the district court properly retained the question of arbitrability and denied the motions to compel.

Analysis

Precedents Cited

Howsam v. Dean Witter Reynolds, Inc. (537 U.S. 79): Court must decide gateway arbitrability issues absent “clear and unmistakable” delegation.
AT&T Technologies, Inc. v. Communications Workers (475 U.S. 643): Arbitration derives authority from contractual consent; arbitrability is for courts unless parties clearly delegate to arbitrators.
Rent-A-Center, West, Inc. v. Jackson (561 U.S. 63): Parties cannot force delegation when contract formation is itself disputed.
Reeves v. Enterprise Products Partners (10th Cir. 2021): Denial of arbitration is reviewed de novo and resembles summary‐judgment practice.
Hardin v. First Cash Financial Services (10th Cir. 2006): When formation is in dispute, a jury trial is required unless no genuine fact issue exists.
Hancock v. AT&T Co., Inc. (10th Cir. 2012): The moving party bears the burden to prove a valid arbitration agreement.
Jacks v. CMH Homes, Inc. (10th Cir. 2017): Federal courts apply state contract law in evaluating formation.

These authorities guided the court to resolve contract‐formation questions—mutual assent, essential terms, delegation clauses—before sending any issues to arbitration.

Legal Reasoning

The court’s analysis unfolded in two parallel tracks:

Windows Contract (RBA)
• Under Oklahoma law, a valid contract requires mutual consent to all essential terms, including price or payment method. RBA’s “Windows Contract” purportedly promised the zero‐interest product but delivered a high‐interest line of credit. That mismatch—undisputed in the record—showed no “meeting of the minds.”
• Parisi’s multiple electronic signatures on Kelley’s iPad screens were limited, in her understanding, to a credit check and application. She never saw or formed assent to the actual financing or arbitration clauses.
• RBA’s invocation of a delegation clause failed because the foundational agreement never existed. Courts cannot presume delegation absent a formed contract.
Installment Loan Agreement (GreenSky)
• The “Shopping Pass” agreement required borrower or authorized user initiation to effect acceptance. Parisi never used it; RBA triggered a transaction and GreenSky credited the merchant fee unilaterally.
• Parisi immediately disputed the transaction and never manifested assent to the terms of the high‐interest loan or its arbitration clause.
• Without mutual assent or a signature by GreenSky, no arbitration agreement arose.

Impact

This decision reinforces several important principles in arbitration and contract law:

Court’s Gatekeeping Role: When contract formation is disputed, courts (not arbitrators) must decide arbitrability and formation issues.
Mutual Assent Is Essential: An arbitration clause buried in an agreement will not be enforced absent a true “meeting of the minds” on all material terms.
Consumer Protections: Sellers and lenders must ensure clear disclosure of financing and arbitration terms and obtain unambiguous assent—especially with electronic or multi‐page clickwraps.
Limits on Delegation Clauses: Delegation provisions cannot operate where no enforceable contract was ever formed.

Future litigants will cite Parisi to challenge arbitration demands where signings were uninformed or terms materially changed post‐signature.

Complex Concepts Simplified

Gateway Issues vs. Merits: “Gateway” arbitrability issues (did the parties agree to arbitrate?) are decided by courts unless a valid delegation clause exists. Merits questions come later before an arbitrator.
Mutual Assent/Meeting of the Minds: Both parties must understand and agree to the same essential terms (e.g., price, interest rate) for a contract to form.
Delegation Clause: A provision that sends arbitrability questions to an arbitrator—but only enforceable if the overarching contract is valid.
Clickwrap vs. Browsewrap: Clickwrap (user clicks “I agree”) more readily enforces assent; browsewrap (terms merely posted on a site) offers weaker proof of actual consent.
Shopping Pass: A quasi‐credit card mechanism. Under GreenSky’s program, using the pass meant accepting all loan terms—including arbitration.

Conclusion

Parisi v. GreenSky underscores that the linchpin of any arbitration requirement is a validly formed contract. The Tenth Circuit’s insistence on clear mutual assent to both the substantive financing terms and the embedded arbitration clauses protects consumers from being bound by agreements they never fully understood. By reaffirming the court’s gatekeeping role over arbitrability when formation is disputed, Parisi will serve as persuasive authority in future challenges to arbitration demands under both federal and state law.