On October 31, 2013, the US Court of Appeals for the Sixth Circuit issued an opinion in Tillman v. Macy's, Inc.The court held that an employee's failure to opt out of an agreement to arbitrate constituted acceptance of the agreement because the employer provided sufficient notice of its offer to enter into the agreement and time to opt out.

In 2006, Macy's rolled out a program called "Solutions InSTORE" to certain employees, including the plaintiff. As part of the program, Macy's sent the plaintiff a mailing that included a detailed description of the dispute resolution process, which included an agreement to arbitrate disputes. An opt-out form was provided with instructions stating that a failure to opt out would be considered acceptance of the agreement. There was a deadline to submit the form. The plaintiff also attended a mandatory video screening that year where she was shown a video describing the Solutions InSTORE program and provided with a brochure containing additional explanation of the program and guidance on how to reject the agreement to arbitrate. In 2007, Macy's sent the plaintiff a brochure noting that she could follow the steps of the Solutions InSTORE program if a dispute were to arise. The company also sent the plaintiff another opt-out form with a brochure and update about the program.

The plaintiff never submitted either of the opt-out forms. She claimed that she never received any of the mailings and that the video screening did not offer sufficient explanation of the program. She did not deny receiving the brochure distributed at the video screening.

The plaintiff's employment was terminated in 2009. She filed suit pro se in the US District Court for the Eastern District of Michigan alleging that her termination was discriminatory. Macy's filed a motion to compel arbitration and stay the action pending arbitration based on an agreement to arbitrate under the Solutions InSTORE program. The district court found that there was no agreement to arbitrate disputes between the plaintiff and Macy's.

The Sixth Circuit held that Macy's effectively communicated an offer to the plaintiff to enter into a binding arbitration agreement and to waive her right to a jury trial. The court noted that the mandatory video screening and literature provided to the plaintiff contained adequate information about the program it offered and the method of acceptance. In particular, the court emphasized that the brochure provided at the video screening informed the plaintiff that:

In reaching its conclusion, the court relied on the law of Michigan, the state of contract formation. The Sixth Circuit distinguished its decision in Hergenreder v. Bickford Senior Living Group, LLC, explaining that the plaintiff in this case was provided with more ample information regarding the agreement to arbitrate than the plaintiff in Hergenreder, where the only notice of the policy was contained in a vague reference in an employee handbook that did not explicitly mention arbitration.

The Sixth Circuit also held that the fact that the plaintiff was not ordered to read the literature regarding the dispute resolution program was not dispositive and found that Macy's encouraged and directed employees to read the materials. The plaintiff provided no authority under the FAA or Michigan law to support the proposition that an offeror must obligate the offeree to read an offer that has been conveyed in order for there to be mutual assent. The court rejected the plaintiff's argument that she did not receive the mailings because properly addressed and posted mail is presumed to have been delivered.

Michigan law allows parties to accept offers through conduct. By continuing her employment without submitting an opt-out form, the plaintiff accepted the arbitration agreement. The court found the plaintiff's waiver of prospective civil rights claims to be knowing because:

The Sixth Circuit reversed the denial of the motion to compel arbitration.

Although an opt-in scheme for accepting arbitration is less likely to be held invalid, an opt-out scheme may survive a challenge if the employer provides sufficient notice to employees of the terms of the agreement and the method of rejection. Ample time must be provided for an employee to opt out.