In its September 12, 2013 opinion in Day v. Fortune Hi-Tech Marketing, Inc., the US Court of Appeals for the Sixth Circuit refused to enforce an arbitration clause in a contract that was not supported by adequate consideration. The contract lacked consideration because the defendant retained the right to unilaterally alter any provision of the contract at any time with essentially no advance notice.

The defendant in this case was Fortune Hi-Tech Marketing (FHTM), a third-party marketing firm that sold services from companies to consumers through independent representatives (IR). The IRs each signed an application and agreement with FHTM. The agreement incorporated FHTM’s "Policies and Procedures." The "Policies and Procedures" included an arbitration clause and a clause stating that FHTM could unilaterally modify the agreement at any time with essentially no advance notice. Several IRs sued FHTM under various state and federal laws, alleging that FHTM was a pyramid scheme. FHTM moved to compel arbitration. The district court denied the motion and ordered the case to proceed to trial. FHTM appealed.

The Sixth Circuit affirmed the district court's decision. The appeals court found the contract at issue to be invalid because it permitted FHTM to modify the agreement at any time with essentially no advance notice to the IRs. As a result, any promises made by FHTM in the contract were illusory. The contract therefore was not supported by adequate consideration and was not enforceable. Because the contract as a whole was not enforceable, the arbitration clause also failed and the plaintiffs could not be compelled to submit their claims to arbitration.