Mutual Assent and Arbitration: Parisi v. GreenSky Clarifies Formation of Valid Arbitration Agreements

Introduction

Parisi v. GreenSky, LLC et al., decided June 6, 2025 by the United States Court of Appeals for the Tenth Circuit, addresses whether two separate arbitration agreements were ever validly formed between plaintiff Susan Parisi and:

• Defendant-Appellant GreenSky, LLC (a loan facilitator)
• Defendant-Appellant Oklahoma Windows and Doors LLC d/b/a Renewal by Andersen of Oklahoma (“RBA”)

Parisi, facing significant medical expenses, responded to an RBA advertisement offering a “Zero-Interest Loan” to finance window replacement. She signed multiple electronic prompts on an iPad, believing only a credit check was involved. Afterwards she discovered two separate documents—(1) a “Windows Contract” containing an arbitration clause and (2) an “Installment Loan Agreement” (the “Loan Agreement”) with its own arbitration clause—neither of which she knowingly agreed to. Both GreenSky and RBA moved to compel arbitration; the district court denied their motions on the ground that no valid arbitration agreement had been formed. The Tenth Circuit affirmed.

Summary of the Judgment

The Tenth Circuit held that:

1. Neither RBA nor GreenSky met their burden to show a valid, enforceable arbitration agreement with Parisi.
2. The formation of any arbitration clause is a “gateway” question for the court, not an arbitrator, because Parisi disputed contract formation. A delegation clause cannot bind unless the underlying agreement exists.
3. Under Oklahoma law, a valid contract requires mutual assent to all essential terms. The “Windows Contract” lacked agreed‐upon payment terms, and Parisi’s signatures resulted from misunderstanding and deception.
4. The “Loan Agreement” likewise failed: it required Parisi’s own use of a “Shopping Pass” (or valid authorization) to manifest assent, and the only charge was initiated by RBA without her authorization.
5. Because no reasonable jury could find valid mutual assent to either arbitration clause, the district court properly denied the motions to compel arbitration without trial.

Analysis

Precedents Cited

• 9 U.S.C. § 16(a) – Grants circuit courts appellate jurisdiction over interlocutory orders denying arbitration.
• Reeves v. Enterprise Prods. Partners, 17 F.4th 1008 (10th Cir. 2021) – Arbitration motions are reviewed de novo with summary‐judgment‐like analysis.
• Howsam v. Dean Witter Reynolds, 537 U.S. 79 (2002) – Distinguishes “gateway” arbitrability questions for courts versus procedural questions for arbitrators.
• AT&T Technologies, Inc. v. Communications Workers, 475 U.S. 643 (1986) – Courts decide arbitrability unless parties clearly delegate that question to an arbitrator.
• Hardin v. First Cash Financial Services, 465 F.3d 470 (10th Cir. 2006) and Hancock v. AT&T, 701 F.3d 1248 (10th Cir. 2012) – Burden on proponent of arbitration to show valid agreement.
• Fedor v. United Healthcare, 976 F.3d 1100 (10th Cir. 2020) – Delegation clauses cannot be severed from non‐existent contracts.
• Oklahoma contract‐law authorities (Williams, Beck, Clark) – Mutual consent and meeting of the minds are essential for formation.

Legal Reasoning

1. Delegation and Gateway Issues: Parisi challenged contract formation itself, triggering a judicial determination of arbitrability. Neither RBA nor GreenSky proved a delegation clause binding Parisi to an arbitrator’s jurisdiction, as a delegation clause cannot stand if no underlying contract exists.

2. Mutual Assent — Windows Contract: Under Oklahoma law, “essential terms,” including payment terms, must be mutually agreed. Parisi sought only a zero‐interest loan; RBA’s offer either failed to define financing terms or promised a different loan. No “meeting of the minds” occurred; repeated iPad check‐boxes did not convey clear assent.

3. Mutual Assent — Loan Agreement: The Loan Agreement required affirmative use of a Shopping Pass by the borrower (or with valid authorization) to accept its terms. The only transaction was initiated unilaterally by RBA without Parisi’s authorization. No valid contractual acceptance took place.

Impact

Parisi v. GreenSky reinforces that:

• Courts, not arbitrators, decide disputed questions of contract formation and arbitrability unless there is a clear, independent delegation clause.
• Arbitration clauses hidden in fine print or electronic roll‐through screens will not bind a party absent clear, informed assent to all essential terms.
• Loan facilitators and merchants must ensure clear presentation and genuine consent to financing terms and arbitration provisions—especially when high‐stakes medical or personal circumstances are involved.

Future cases will likely scrutinize how electronic signatures, clickwraps, and financing‐link devices (like “Shopping Passes”) are presented to consumers, emphasizing actual notice and a true meeting of the minds.

Complex Concepts Simplified

• Mutual Assent: Both parties must agree to the same essential contract terms in the same way. It’s often called a “meeting of the minds.”
• Gateway Issue of Arbitrability: A question about whether an arbitration agreement exists at all. Courts decide this unless parties clearly assign that question to an arbitrator.
• Delegation Clause: A clause saying “the arbitrator decides arbitrability.” It is only effective if there is an underlying valid contract.
• Shopping Pass: An online tool acting like a credit card number tied to a loan. Its use can trigger acceptance of loan terms—but only if the borrower knowingly uses it.
• Summary‐Judgment‐Style Review: When deciding a motion to compel arbitration, courts view the evidence in the light most favorable to the non‐moving party and ask whether a reasonable jury could find an agreement.

Conclusion

Parisi v. GreenSky stands as a persuasive Tenth Circuit decision emphasizing that valid arbitration agreements must be supported by clear, mutual assent to all essential terms. Electronic signatures, deceptive prompts, and hidden clauses will not substitute for a genuine “meeting of the minds.” This decision underscores the judiciary’s gatekeeper role in arbitration disputes and signals to merchants, lenders, and platform operators the importance of transparent contract formation processes.