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allows [the employer] to unilaterally amend the terms of the handbook, and in so doing,
allows [the employer] to unilaterally amend the types of claims subject to arbitration. . . .
[The employer] retains the ability to pick and choose the claims its wants to arbitrate.
―A contract must be based upon a valid consideration or mutuality of
obligation. . . . Consideration may consist of either benefits or detriments to the
contracting parties. . . . It may consist of some right, interest, profit, or benefit that
accrues to one party, or, alternatively, of some forbearance, loss or responsibility that is
undertaken or incurred by the other party. . . . When illusory promises are all that support
a purported bilateral contract, there is no mutuality of obligation and, thus, there is no
contract. . . . A promise is illusory when it fails to bind the promisor, who retains the
option of discontinuing performance. . . .
―Because [the employer] has reserved the right to unilaterally amend the types of
claims covered by [the arbitration] agreement, we conclude that the . . . agreement is
supported only by an illusory promise, and is unenforceable.‖ (C & H News, supra,
133 S.W.3d at p. 647, citations omitted, italics added.)
Two years later, in a dispute between several pharmacies and their ―benefits
management‖ company, the Texas Supreme Court examined an arbitration clause
contained in the parties‘ ―Provider Agreement,‖ which covered several subjects,
including arbitration and the parties‘ reimbursement arrangements. (In re AdvancePCS
Health L.P. (Tex. 2005) 172 S.W.3d 603, 605–607 (AdvancePCS).) The court rejected
the pharmacies‘ contention that the arbitration clause was illusory, explaining: ―[T]he
pharmacies assert [that] provisions in the Provider Agreement allow [the management
company] to cancel the arbitration agreement at will, . . . rendering its promise illusory
and the agreement without consideration. . . . 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. . . . But when an arbitration clause is part of
an underlying contract, the rest of the parties‘ agreement provides the consideration. . . .
Having used [the management company‘s] services and network to obtain
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