By the Court (Cypher, Fecteau & Massing, JJ.), Clerk

NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

This case was commenced in 2003 as a putative class action against Dell Inc. and certain of its affiliates and service providers (collectively, Dell), alleging that Dell's practice of charging its Massachusetts customers a sales tax on optional service contracts, purchased in connection with Dell computers, constituted a violation of G. L. c. 93A, §§ 9 & 11. Since that time, the parties have been litigating the enforceability of the arbitration provision in the "Dell Terms and Conditions of Sale" (terms and conditions) that accompanied the plaintiffs' purchase. In this phase of the litigation, the plaintiffs principally argue that the arbitration provision was a stand- alone agreement, rather than part of the terms and conditions, and thus lacked consideration because Dell could unilaterally change its terms. We conclude that the parties' agreement to arbitrate was supported by consideration.

1. Background. For facts and procedural history, see Feeney v. Dell Inc., 454 Mass. 192 (2009) (Feeney I), Feeney v. Dell Inc., 465 Mass. 470 (2013) (Feeney II), and Feeney v. Dell Inc., 466 Mass. 1001 (2013) (Feeney III). Additional facts are taken from the memorandum of decision and order on the defendants' postremand motion to confirm the arbitration award of dismissal. We summarize as relevant to this appeal.

Plaintiff John A. Feeney, now deceased, purchased two Dell service contracts in 2002, and Dedham Health and Athletic Complex (Dedham Health) purchased thirty-eight Dell service contracts between 2000 and 2003. The plaintiffs claim that Dell improperly collected a sales tax on their purchases of those service contracts.

After the complaint was filed in Superior Court, Dell moved to stay the proceedings and compel arbitration. The motion was allowed and the plaintiffs' petition for interlocutory review of the order was denied. In 2004, the plaintiffs filed claims for arbitration "under protest." By decision dated October 30, 2007, the arbitrator denied the plaintiffs' request for class certification, ruling that class action relief had been waived pursuant to the arbitration provision in the terms and conditions, which provided for individual arbitration of any disputes against Dell (presumably, including disputes regarding service contracts). As to the merits, the arbitrator determined that Texas law, the choice of law identified in the terms and conditions, foreclosed the plaintiffs' G. L. c. 93A claims and that, in any event, Dell's collection of sales tax on the service contracts did not constitute unfair or deceptive conduct.

A Superior Court judge confirmed the arbitration award of dismissal and ordered entry of a final judgment of dismissal, which entered on April 15, 2008. Appeals ensued on the issue whether the arbitration provision in the terms and conditions was valid. In Feeney I, 454 Mass. at 205-206, the Supreme Judicial Court reversed, ruling that the prohibition on class actions in the arbitration provision contravenes Massachusetts public policy. The plaintiffs thereafter filed a third amended complaint. After the United States Supreme Court decision in AT&T Mobility LLC v. Concepcion, 563 U.S. 321 (2011), addressing class action waivers in arbitration agreements, Dell renewed its motion to confirm the arbitration award of dismissal, which was denied. On Dell's appeal, the Supreme Judicial Court affirmed in Feeney II, 465 Mass. at 507. But shortly thereafter, upon issuance of American Exp. Co. v. Italian Colors Restaurant, 133 S. Ct. 2304 (2013), in which the United States Supreme Court upheld class action prohibitions in arbitration agreements, the Supreme Judicial Court granted Dell's petition for rehearing. In Feeney III, 466 Mass. at 1003, the court reversed the judge's order, and remanded for further proceedings on the plaintiffs' alternative grounds for challenging the arbitration award of dismissal. Following Feeney III, Dell filed a postremand motion to confirm the arbitration award of dismissal.

In opposing Dell's motion to confirm, the plaintiffs challenged the dismissal based on alternative grounds to the public policy argument, as recognized in the remand order in Feeney III. This appeal addresses the plaintiffs' argument that the arbitration provision was illusory for lack of consideration because Dell could unilaterally modify its terms at any time. In pressing the point, the plaintiffs contend that the arbitration provision was a stand-alone agreement, rather than part of the terms and conditions, and therefore unsupported by consideration. The judge rejected the argument, ruling as well that Dell could not unilaterally modify the contract for products already delivered in any event, as to do so would conflict with other contractual provisions.

We deal here with the plaintiffs' appeal from the judgment confirming the arbitration award of dismissal, and from the order denying LouAnn LeBlanc's motion to intervene. See notes 1 and 5, supra.

2. Arbitration provision. Our review of the judge's confirmation of the arbitration award of dismissal is de novo. See J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex. 2003). We apply ordinary State law principles that govern the formation of a contract. Id. at 227-228.

The arbitration provision was included in the terms and conditions, i.e., when the plaintiffs placed their orders with Dell, Dell mailed to them an invoice or acknowledgement that included the terms and conditions. Dell also enclosed a copy of the terms and conditions with the product shipment. The terms and conditions are also available on Dell's Web site. The preamble to the terms and conditions is as follows:

"This Agreement contains the terms and conditions that apply to purchases by Home, Home Office, and Small Business customers from the Dell entity named on the invoice ('Dell') that will be provided to you ('Customer') on orders for computer systems and/or related products sold in the United States. You agree to be bound by and accept this agreement as applicable to your purchase of product(s) or service(s) from Dell. By accepting delivery of the computer systems and/or other products described on that invoice, Customer agrees to be bound by and accepts these terms and conditions.
"THESE TERMS AND CONDITIONS APPLY (I) UNLESS THE CUSTOMER HAS SIGNED A SEPARATE FORMAL PURCHASE AGREEMENT WITH DELL, IN WHICH CASE THE SEPARATE AGREEMENT SHALL GOVERN; OR (II) UNLESS OTHER DELL STANDARD TERMS APPLY TO THE TRANSACTION.

"These terms and conditions are subject to change without prior written notice at any time, in Dell's sole discretion."

The arbitration provision is set forth in paragraph thirteen of the terms and conditions. See Feeney I, 454 Mass. at 195 n.10, for the provision in its entirety. The terms and conditions also reference Dell's "Total Satisfaction Return Policy," which provided for the return of any product within thirty days for a full refund.

The plaintiffs contend that the arbitration provision lacked consideration -- that is, the necessary binding promise on Dell's part -- because Dell retained the right to modify the terms and conditions, and thereby could retract its promise to arbitrate. See, e.g., J.M. Davidson, Inc. v. Webster, 128 S.W.3d at 228-229 (if other provisions in agreement allow one party to cancel arbitration agreement at will, mutual promises are lacking and agreement is without sufficient consideration). "[W]here one party to an arbitration agreement seeks to invoke arbitration to settle a dispute, if the other party can suddenly change the terms of the agreement to avoid arbitration, then the agreement was illusory from the outset." Carey v. 24 Hour Fitness, USA, Inc., 669 F.3d 202, 205 (5th Cir. 2012).

Dell maintains that the arbitration provision was part of the larger sales contract to purchase the computers and therefore was supported by the sales contract's consideration. "[W]hen an arbitration provision is part of an underlying contract, the rest of the parties' agreement provides the consideration." In re AdvancePCS Health L.P., 172 S.W.3d 603, 607 (Tex. 2005). Dell contends that the plaintiffs' receipt of the computers, and their failure to return the products within the thirty-day window provided by the terms and conditions, supplied the necessary consideration. As a result, even if Dell retained the right to modify the arbitration provision, Dell argues that the agreement was not illusory because it was part of the larger sales contract that was supported by consideration. "[A]n arbitration clause does not require mutuality of obligation, so long as the underlying contract is supported by adequate consideration." In re FirstMerit Bank, N.A., 52 S.W.3d 749, 757 (Tex. 2001).

The plaintiffs counter that the arbitration provision was not part of the sales contract but instead was a stand-alone agreement. Stand-alone arbitration agreements are treated differently under Texas law than those included as part of a larger contract. "In the context of stand-alone arbitration agreements, binding promises are required on both sides as they are the only consideration rendered to create a contract." In re AdvancePCS Health L.P., 172 S.W.3d at 607. The plaintiffs argue that their sales contracts with Dell were fully formed before the computers were shipped, and that Dell's arbitration provision, whether printed on the invoice or acknowledgment mailed to them after placing their orders or shipped with the computers, was not part of the sales contract. They rely on Tubelite v. Risica & Sons, Inc., 819 S.W.2d 801, 804 (Tex. 1991), in which a written offer and acceptance between a subcontractor and a supplier occurred before forms containing additional terms were sent and where the seller made a firm offer expressly limited to those terms contained in the offer. They point as well to Enpro Sys., Ltd. v. Namasco Corp., 382 F. Supp. 2d 874, 876-878, 880 (S.D. Tex. 2005), in which a purchase order for the prompt shipment of quality-tested steel plate, from a manufacturer of pressure vessels to the steel plate supplier, was deemed complete upon shipment, and did not include the supplier's disclaimers set out in the delivery ticket. We note that those cases did not involve consumer sales contracts, and the terms for offer and acceptance were determined in large part by the particular type of commercial transaction, the nature of the goods, and the parties' prior course of dealing and expectations.

But here, we find no express language in the contract documents establishing that the contract was complete sometime before shipment, nor do we think the type of transaction dictated that the parties' rights and obligations were finalized at that point. Under Texas law, an arbitration provision need not "be included in each of the contract documents it purports to cover." In re AdvancePCS Health L.P., 172 S.W.3d at 606, citing In re FirstMerit Bank, N.A., 52 S.W.3d at 752-753, 755. See In re American Homestar of Lancaster, Inc., 50 S.W.3d 480, 482, 484 (Tex. 2001) (arbitration provision enforceable although separate from retail installment contract for purchase of manufactured home). We also believe that the circumstances surrounding the purchase of computers, and the consumer's reasonable expectation that additional terms would accompany that type of purchase, should be considered. In our view, a purchaser of a computer, upon placing an order, would expect additional terms, such as a warranty and a period of time to return the goods, given the nature of the product involved.

For that reason, we find more persuasive those cases dealing with consumer sales contracts, and in particular those dealing with consumers purchasing computers, which take into account the practicalities of such transactions. On similar facts involving a challenge to the sales tax charged by Dell on service contracts, and applying Texas law, the Supreme Judicial Court of Maine explained that the customers' "failure to refuse delivery of the computers or to exercise their right to return the computers once they were delivered was conduct by which both parties recognized the existence of a contract," and the customers thereby "expressly manifest[ed] their assent to be bound by the agreement, including its arbitration clause." Stenzel v. Dell, Inc., 870 A.2d 133, 140 (Me. 2005). The Stenzel court noted that the Dell purchasers "had at least three opportunities to review the terms of the agreement, including the arbitration clause, before deciding to accept or reject it." Ibid.

Addressing the enforceability of additional terms in consumer sales contracts involving computers, the United States Court of Appeals for the Seventh Circuit, in the oft-cited case of Hill v. Gateway 2000, Inc., 105 F.3d 1147, 1149-1150 (7th Cir. 1997), observed: "The document in Gateway's box includes promises of future performance that some consumers value highly; these promises bind Gateway just as the arbitration clause binds the [plaintiffs]." As the court explained:

"Payment preceding the revelation of full terms is common for air transportation, insurance, and many other
endeavors. Practical considerations support allowing the vendors to enclose the full legal terms with their products. Cashiers cannot be expected to read legal documents to customers before ringing up sales. If the staff at the other end of the phone for direct-sales operations such as Gateway's had to read the four-page statement of terms before taking the buyer's credit card number, the droning voice would anesthetize rather than enlighten many potential buyers. . . . And oral recitation would not avoid customers' assertions (whether true or feigned) that the clerk did not read term X to them, or that they did not remember or understand it. . . . Customers as a group are better off when vendors skip costly and ineffectual steps such as telephonic recitation, and use instead a simple approve-or-return device."

Based on the foregoing, we conclude that the arbitration provision contained in the terms and conditions was part of the sales contract and not a stand-alone agreement and, as such, was supported by the sales contract's consideration. Accordingly, Dell's unilateral right to modify the arbitration provision did not deprive the agreement to arbitrate of consideration.

3. Dell's right to modify terms. It is also true that, under Texas law, a party's unilateral right to modify an arbitration agreement does not necessarily render the agreement illusory if such changes only apply to future transactions. See J.M. Davidson, Inc. v. Webster, 128 S.W.3d at 229-230. In In re Halliburton Co., 80 S.W.3d 566, 569-570 (Tex. 2002), for example, the court ruled that mutual promises to submit employment disputes to arbitration provided sufficient consideration for the parties' arbitration provision, despite the employer's right to modify or to terminate the dispute resolution program, because that right only applied prospectively. See In re Odyssey Healthcare, Inc., 310 S.W.3d 419, 424 (Tex. 2010) (arbitration provision not illusory because employer's right to amend it did not apply to benefits for injuries occurring before amendment).

On the other hand, in cases where the unilateral right to modify an arbitration agreement could apply retroactively, to a pending transaction or dispute, the agreement was held to be illusory under Texas law. See, e.g., Morrison v. Amway Corp., 517 F.3d 248, 254-257 (5th Cir. 2008) (arbitration provision in distributorship agreement illusory under Texas law where Amway retained unilateral right to modify agreement's terms, with no express exemption from retroactive modification); Carey v. 24 Hour Fitness USA, Inc., 669 F.3d at 205 (agreement illusory where employer's ability to change arbitration policy "would strip the right of arbitration from an employee who has already attempted to invoke it"). The plaintiffs rely, in particular, on Dell Mktg., L.P. v. Incompass IT, Inc., 771 F. Supp. 2d 648, 656-657 (W.D. Tex. 2011), where the arbitration provision in a commercial agreement between Dell and one of its resellers was deemed illusory because the commercial agreement's terms and conditions were subject to change at any time at Dell's sole discretion. Significantly, the court found no language in the reseller's agreement that would prohibit Dell from amending the agreement retroactively. Id. at 657.

We do find such limiting language in Dell's terms and conditions. The judge relied on the phrase, "THESE TERMS AND CONDITIONS APPLY," which would be meaningless if the terms and conditions could be changed so as not to apply to the instant transaction. We note, as well, paragraph one of the terms and conditions, which states:

"Other than as specifically provided in any separate formal purchase agreement between Customer and Dell, these terms and conditions may NOT be altered, supplemented, or amended by the use of any other document(s). Any attempt to alter, supplement or amend this document or to enter an order for product(s) which is subject to additional or altered terms and conditions will be null and void, unless otherwise agreed to in a written agreement signed by both Customer and Dell."

The identical provisions were interpreted in Stenzel v. Dell, Inc., supra at 141-142 & n.2, as limiting Dell's ability to modify the terms to prospective transactions only. The court construed the language, "THESE TERMS AND CONDITIONS APPLY," in the preamble, along with the "no amendment" provision, to mean that "prior to a customer's acceptance, Dell is free to unilaterally alter, supplement, or amend the terms of the agreement, but once a customer has manifested its acceptance of the agreement, the agreement cannot be altered by either party absent a formal written agreement authorizing the same." Id. at 142.

Taking the terms and conditions as a whole, we agree with the judge that Dell could not modify the arbitration provision retroactively to apply to Dell products already delivered. For that reason as well, we conclude that the arbitration provision was supported by mutual promises to arbitrate disputes, and was not illusory.

4. Permissive intervention. Plaintiffs' counsel, upon learning of the death of Feeney, identified LeBlanc to serve as a coplaintiff and class representative, and moved for permissive intervention, pursuant to Mass.R.Civ.P. 24(b), 365 Mass. 769 (1974). In a decision dated February 3, 2014, after dismissing the claims of Dedham Health, the judge denied LeBlanc's motion to intervene.

"'Permissive intervention is wholly discretionary with the trial court,' and the decision of the trial court will be reversed only for clear abuse of discretion." Massachusetts Fedn. of Teachers, AFT, AFL-CIO v. School Comm. of Chelsea, 409 Mass. 203, 209 (1991), quoting from United States Postal Serv. v. Brennan, 579 F.2d 188 191-192 (2d Cir. 1978). We are disinclined to find clear abuse of discretion here because the plaintiffs have not shown that LeBlanc is precluded from bringing a new action in her own name. See Korioth v. Briscoe, 523 F.2d 1271, 1279 n.25 (5th Cir. 1975) ("When an appellant has other adequate means of asserting its rights, a charge of abuse of discretion in the denial of a motion for permissive intervention would appear to be almost untenable on its face"). See also Motor Club of America Ins. Co. v. McCroskey, 9 Mass. App. Ct. 185, 188-189 (1980) (present judgment did not impair applicant's ability to pursue its interests in subsequent litigation). See generally Corcoran v. Wigglesworth Mach. Co., 389 Mass. 1002, 1003 (1983) (motion to intervene failed to show how applicant would benefit from intervening).

The case of Wolf v. Commissioner of Pub. Welfare, 367 Mass. 293 (1975), upon which the plaintiffs rely, is not on point. In that case, the plaintiff's individual claim, which was based on late receipt of her assistance checks, was rendered moot when she received her checks. Id. at 295. Though her individual claim was moot, the court determined that the plaintiff might continue to serve as class representative, given the importance of an issue that was "capable of repetition, yet evading review." Id. at 298 (citation omitted). See Gonzalez v. Commissioner of Correction, 407 Mass. 448, 453 (1990). The instant controversy is not of that nature. Here, despite Feeney's death, Dedham Health's claims were still in litigation at the time of the instant motion to confirm, and were dismissed on the merits, the judge upholding the validity of the arbitration provision as to Dedham Health's claims. The claims against Dell were not dismissed as moot based on Feeney's death, and thus Wolf and Gonzalez do not require a different result.

The plaintiffs make a final argument that the motion to intervene should be allowed as a matter of equity. They point out that Dell indicated to the Appellate Tax Board (board) that Dell pursued abatement proceedings only to protect itself in the event that the plaintiffs succeeded in their c. 93A action. The proceedings before the board, however, do not change the fact that Dedham Health's claims in this action were dismissed on the merits, based on the outcome of binding arbitration pursuant to an arbitration provision that we now uphold as valid. The argument that Dell will abandon its abatement claim if LeBlanc is not permitted to pursue the class action fails for much the same reason as the public policy argument in Feeney III, even though the outcome reduces the likelihood that these low-value consumer claims will be prosecuted. The plaintiffs have failed to demonstrate an abuse of discretion.

Judgment affirmed.

Order denying motion to intervene affirmed.

By the Court (Cypher, Fecteau & Massing, JJ.),

Clerk Entered: July 22, 2015.