Reichert v. Keefe Commissary Network LLC

[5] UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA [7] JEFFREY REICHERT and GARY CASE NO. C17-5848 BHS 8 MOYER, both individually and on behalf of all others similarly situated, ORDER DENYING 9 DEFENDANTS’ MOTIONS TO Plaintiffs, COMPEL ARBITRATION 10 v. 11 KEEFE COMMISSARY NETWORK LLC, d/b/a ACCESS CORRECTIONS; 12 RAPID INVESTMENTS, INC., d/b/a RAPID FINANCIAL SOULTIONS, 13 d/b/a ACCESS FREEDOM; and CACHE VALLEY BANK [14] Defendants. [16] This matter comes before the Court on Defendant Keefe Commissary Network, [17] LLC’s motion to compel arbitration of Plaintiff Gary Moyer’s claims, Dkt. 134, and [18] Defendants Rapid Investments, Inc. and Cache Valley Bank’s related motion to compel [19] arbitration of Moyer’s claims, Dkt. 136. The Court has considered the motions and the [20] briefing filed in support of and in opposition to the motions and the remainder of the file [21] and hereby denies the motions for the reasons stated herein. [22] 1 I. BACKGROUND 2 A. Overview 3 When people are arrested and detained, detention facilities confiscate their cash 4 and hold it in trust. Facilities traditionally returned the money upon release in cash or 5 with a check. Increasingly, private companies contract with facilities to convert the 6 money into prepaid debit cards (“release cards”) and shift administrative costs to the 7 releasee through fees. Releasees often lose a substantial portion of their funds to fees, and 8 some lose their entire balance. 9 Kitsap County Jail contracts with Keefe to convert cash into release cards. The 10 cards are issued by Cache Valley and Rapid pursuant to the contract between Keefe and 11 Kitsap County. Releasees receive the cards already activated and already accruing fees. 12 Plaintiffs represent a Washington State and a national class of individuals subject to these 13 practices. 14 Defendants contend that when releasees receive the card, they enter a contractual 15 relationship articulated in a Cardholder Agreement, which includes a binding individual 16 arbitration clause. Plaintiffs counter that no contractual relationship is formed— 17 Defendants provide no consideration, and releasees do not assent to be bound. 18 B. Procedural History The original class representative, Jeffrey Reichert, did not receive any [19] documentation along with his release card. Dkt. 53 at 2. Defendants moved to compel [20] arbitration, arguing that Reichert was bound by the Cardholder Agreement available [22] 1 through the website listed on the back of his card. Id. The Court denied the motion, 2 finding no mutual assent, and thus no contractual relationship. Id. at 5.1 3 As a condition of certifying the classes, the Court required Plaintiffs to name an 4 additional class representative who received a copy of the Cardholder Agreement. Dkt. 5 94. Plaintiffs named Moyer. Dkt. 100. Defendants moved to compel arbitration of 6 Moyer’s claims, which the Court denied. Dkt. 116. The Court concluded that though 7 Moyer received a copy of the Cardholder Agreement, he did not assent to enter a 8 contractual relationship. Id. 9 Defendants appealed, and the Ninth Circuit vacated and remanded without 10 “express[ing] any views on whether a valid, enforceable agreement exists.” Reichert v. 11 Rapid Investments, Inc., 826 F. App’x 656 , 658 (9th Cir. 2020). The Circuit instructed the 12 Court to inquire into Moyer’s intent, as distinguished from Reichert’s, to determine 13 whether he had in fact assented to the terms of the Agreement. Id. at 657 (quoting City of 14 Everett v. Sumstad’s Estate, 95 Wn.2d 853, 855 (1981)). It emphasized that the record 15 lacked a declaration from Moyer, making it unclear whether the Court considered the 16 parties’ “outward manifestations and circumstances surrounding the transaction.” Id. 17 (quoting Burnett v. Pagliacci Pizza, Inc., 196 Wn.2d 38 , 50 (2020)). 18 On February 12, 2021, Defendants again moved to compel Moyer to individually 19 arbitrate his claims. Dkts. 134, 136. Keefe is not a party to the purported contract [20] 21 1 The Honorable Ronald B. Leighton presided over this case from its filing through August 31, 2020. Dkt. 124. It was transferred to the undersigned following Judge Leighton’s 22 retirement from the federal bench. 1 between Rapid and Moyer, so its motion is based on principles of equitable estoppel, 2 agency, and third-party beneficiary status. Dkt. 124. On March 8, 2021, Moyer responded 3 to both motions. Dkts. 139, 142. On March 12, 2021, Defendants replied. Dkts. 143, 144. 4 The record now contains both Moyer’s declaration and his deposition. 5 C. Factual Background 6 Moyer received release cards on three occasions: May 2017, December 2017, and 7 February 2018. Moyer declares that he never applied for the cards or requested any way 8 of getting his money back other than cash. Dkt. 140, ⁋ 6. He never agreed to receive the 9 cards instead of his cash. Id. ⁋ 7. 10 Rapid glues the card to a Cardholder Agreement “tri-folded around the release 11 card with only the bar code on the back of the release card visible through a cutout of the 12 Cardholder Agreement that allows the correctional facility to scan the release card to 13 assign it to an individual.” Dkt. 137, ⁋ 12. Rapid began introducing this practice to the 14 detention facilities it works with in April 2017. Id. It is undisputed that Moyer received a 15 Cardholder Agreement on at least one occasion. 16 On May 15, 2017, Moyer was issued a release card loaded with $14.62. Id. ⁋ 24. 17 He believes he was given a document along with this card but does not specifically 18 remember looking at it. Dkt. 138-1 at 21. He attempted a transaction with Telmate that 19 same day for $13.30 which failed. Dkt. 137, ⁋ 25. Three days later, Rapid charged a 20 $1.32 maintenance fee. Dkt. 137-3 at 3. Five days later, Moyer made a $9.49 transaction 21 at a 7-Eleven. Dkt. 137, ⁋⁋ 25–26. Rapid charged $3.81 in maintenance fees over the next 22 two weeks, and Moyer made no further transactions. Dkt. 137-3 at 3. 1 On December 15, 2017, Moyer was issued a release card loaded with $40.00. Dkt. 2 137, ⁋ 21. He testified initially that he assumes that he was given a document with this 3 card, but does not specifically remember looking at it, and does not remember whether he 4 had any conversation with the Kitsap County guard. Dkt. 138-1 at 22, 38. Later in his 5 deposition, he testified that if he said anything to the guard, it would have been that he 6 “had trouble with getting money off the card.” Id. at 39. He also testified that he recalls 7 the guard saying that they do not issue checks anymore, which he assumes was in 8 response to his request for a check. Id. at 55. Rapid charged a $2.50 maintenance fee 9 three days after issuing the card. Dkt. 137-3 at 2. Moyer engaged in a $20.00 transaction 10 at an ExxonMobil two days after that. Dkt. 137, ⁋ 22. Rapid charged $17.50 in 11 maintenance fees over the next month and a half, and Moyer made no further 12 transactions. Dkt. 137-3 at 2. 13 On February 8, 2018, Moyer was issued a release card loaded with $95.26. Dkt. 14 137, ⁋ 18. He declares that this card was accompanied by a document, and he 15 “understand[s] that the defendants claim it was an agreement for using the card.” Dkt. 16 140, ⁋ 8. However, he “did not agree to any terms or conditions for the return of my 17 money.” Id. He declares that “I simply wanted my money back. I did not keep a copy of 18 that document.” Id. He withdrew $80 from an ATM the day he received the card, Dkt. 19 137, ⁋ 19, and was charged a $2.95 issuer fee, Dkt. 137-3 at 2. Rapid charged $12.31 in 20 maintenance fees over the next month, and Moyer made no further transactions. Id. 21 One of the release cards is reproduced below. [1] 2 ATTENTION! This card has =| already been activated. Your PIN = 7### 3 cddade [6] 7 83936152 svenmeentainoncomane cant ASH 3407 GAT S1BG ITS [8] 9 ooh eoaeeg ec 10 mane [IN on thi cad this cord May Coy ten pens oe [11] 12 On the front, the release cards state “ATTENTION! This card has already been 13 |] activated!” Dkt. 104-1.7 On the back, the cards list a website, 14 || www.accessfreedomcard.com, and state: 15 By accepting and or using this card, you agree to the Account Agreement. Get cash and/or make purchase where you see these logos. For your 16 protection, do not write your personal identification number (PIN) on this card. This card is issued by Cache Valley Bank pursuant to a license by 17 MasterCard International. Customer Service Toll Free 877-592-1118 19 Rapid used two versions of its Agreement during the relevant period—one 99 effective June 2016 and one effective February 2018. Dkt. 137-1 at 2; Dkt. 137-2 at 2. 21 |} ———__ > The pre-activation and listed PIN raise the additional question of whether a reasonable 22 || person would leave money behind in such an unsecured form. 1 || The record does not conclusively establish which version Moyer received with his 2 || February 8, 2018 release card, and Moyer questions whether Kitsap County would have 3 || already started distributing the February 2018 version of the agreement by February 8, 4 || 2018. Dkt. 139 at 23 n.5. 5 The Agreements’ appearance is substantially similar, and the first version of the 6 || Agreement is reproduced below. 7 CARDHOLDER AGREEMENTase 3:1 7-ce-OSS28-F SOCOM TORTS Ce ete Peek tte, came cmt arty Thos Aqpeserert sa a acting orp, Tae Camdhoices Agreement: “Agewnent? win eb thes brea (Golres Regatrats Sass = fic Hany tre of this Apert rere om bd eri pauntlispmgatted Sua at covby adware teyeewone Plow wom curd.com foredcttoral applicacte aw, the rerraiang termn inall continue in efiect ged dhe irvatic bere tod Enel avrsntatis Demin res sempne sativa cite acute protection and benefits tech ae Mabie Alerts, 24/7 caw hee Subged tr the limiaiam cf applicable Law, we may at any erme 8 See SUTSTO SOD ww " = 4 ates puntos APEITRATIOR CLAUSE AVPAA AT EMD-OF TB GASKET. 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Yow ageee of io concert tramecdom atch Solent sg corer tees oe □□□ [gp ta Fees a | SS 3 STIS ee | Bg | Societe prose relent meme os Sopetemaee □□□□□□□□□□□□□□□□□□□□□□□ | Sere oso eens ine: Fre Card, pou agree iz: be pmporndie: tor al wamaciorm conducted by dul □□ ee =n ‘Card fom are rook emit! to receres g tanh redure 4 borin rete ariomtes Tercetcparscrsnr | Gee Maher Se | Sachem ce et stad a tm trjar irom eager ee sams err Wee re feercessr | prune —— pp er Can cha aft he anata wae tr | AM Gece ete Seem | tr te meen cee ca ne et pee ete 5 =| ee | □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ | □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ | S=atannaieaais heepenasetaaisa tenes arm rman pee ee | aire eeeame | inn ant parca mn ngs Cary ne ate ane 6 ee cc | □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ Titer pvt inthh Agee Tener atte ease itaharetingar Sean pe nm noo ft an eg 7 □□□□□□□□□□□□□□□□□□□□□□ | —Siarearemeegseeer | Sarees 8 Each Agreement states at the outset: 9 This Cardholder Agreement (this “Agreement” sets forth the terms of your non-reloadable prepaid Card. Please read it carefully and retain it for 10 your records. If you do not agree to these terms, do not use the Card and cancel it by calling Customer Service at 1-877-287-2448. Otherwise, your 11 acceptance and/or use of the Card will be evidence of your agreement to these terms. [12] Dkt. 137-1 at 2; Dkt. 137-2 at 2. The next clause states: [13] NOTE: THIS AGREEMENT REQUIRES CERTAIN DISPUTES TO BE 14 RESOLVED BY WAY OF BINDING ARBITRATION, RATHER THAN BY JURY TRIAL. THE TERMS OF THE ARBITRATION 15 CLAUSE APPEAR AT THE END OF THIS AGREEMENT. 16 || Dkt. 137-1 at 2; Dkt. 137-2 at 2. The arbitration provision, which appears in the middle of 17 || the right column of text, states in part: 18 Except as expressly provided below, any controversy that arises out of or is related to (a) the Card, (b) any service relating to the Card, or (c) this 19 Agreement, whether based on statute, contract, tort, or any other legal theory, in which the aggregate amount in controversy for all claimants 20 exceeds $15,000, including interest and attorneys’ fees, (any “Claim’”’) will be settled on an individual basis by binding arbitration under the Federal 21 Arbitration Act (“FAA”). [22] 1 Dkt. 137-2 at 2; Dkt. 137-3 at 2. In apparent contradiction, a preceding provision, 2 “Governing Law/Jurisdiction,” states: 3 All matters . . . relating to the validity, construction, interpretation or enforcement of this Agreement shall be determined by the laws of the 4 United States . . . . You consent and submit to the exclusive jurisdiction of the state and federal courts located in Cache County, Utah in all 5 controversies arising out of or in connection with your use of the Card and this Agreement. [6] Dkt. 137-2 at 2; Dkt. 137-3 at 2. [7] The earlier version of the Agreement listed the fee to “Close Account with Check [8] Disbursement” as $10.00. Dkt. 137-1 at 2; Dkt. 137-2 at 2. Rapid’s Managing Partner, [9] Daren Jackson, declares that Rapid did not in fact assess this fee when releasees [10] requested checks. Dkt. 137, ⁋ 8. The later version of the Agreement has a “Consent” [11] provision which states: [12] Individuals who believe they have received this card non consensually [sic] 13 will be entitled to full refund of any fees charged to the card. Individuals can claim their full balance by visiting dailypay.me or calling the number 14 on the back of the card. 15 Dkt. 137-2 at 2. 16 II. DISCUSSION 17 Moyer contends that he cannot be forced to arbitrate his claims because he never 18 entered a contractual relationship with Defendants. Defendants counter that his receipt of 19 their Cardholder Agreement and use of the release cards formed a contract. 20 “Issues regarding the validity or enforcement of a putative contract mandating 21 arbitration should be referred to an arbitrator, but challenges to the existence of a contract 22 as a whole must be determined by the court prior to ordering arbitration.” Sanford v. 1 Member Works, 483 F.3d 956, 962 (9th Cir. 2007) (citing Three Valleys Mun. Water Dist. 2 v. E.F. Hutton & Co., 925 F.2d 1136 , 1140–41 (9th Cir. 1991)) (footnote omitted) 3 (emphasis in original). The party seeking to compel arbitration has the burden of proving 4 the existence of an agreement to arbitrate by a preponderance of the evidence.” Knutson 5 v. Sirius XM Radio Inc., 771 F.3d 559, 565 (9th Cir. 2014) (citing Rosenthal v. Great W. 6 Fin. Sec. Corp., 14 Cal.4th 394, 413 (1996)). 7 “To determine ‘whether a valid agreement to arbitrate exists,’ Chiron Corp. v. 8 Ortho Diagnostic Sys., Inc., 207 F.3d 1126, 1130 (9th Cir. 2000), [courts] apply ‘ordinary 9 state-law principles that govern the formation of contracts[,]’ Nguyen v. Barnes & Noble, 10 Inc., 763 F.3d 1171, 1175 (9th Cir. 2014).” Reichert, 826 Fed. App’x at 657 (citation 11 omitted). The parties agree that Washington law applies. Id. at 657 n.1. 12 “‘If there is doubt as to whether [an agreement to arbitrate] exists, the matter 13 should be resolved through an evidentiary hearing or mini-trial . . . . When considering a 14 motion to compel arbitration which is opposed on the grounds that there is no binding 15 agreement to arbitrate, the district court should give the opposing party the benefit of all 16 reasonable doubts and inferences that may arise.’” Garbacz v. A.T. Kearny, Inc., No. C 17 05-05404 JSW, 2006 WL 870690 , at *2 (N.D. Cal. Apr. 4, 2006) (quoting McCarthy v. 18 Providential Corp., No. C 94-0627 FMS, 1994 WL 387852 , at *2 (N.D. Cal. July 19, 19 1994)). 20 A. Consideration 21 Though the Ninth Circuit’s remand focused on mutual assent, Moyer also 22 contends that contract formation fails for lack of consideration. First, Moyer argues 1 Defendants had a preexisting legal duty to return his money, so any promise to do so is 2 not consideration. Dkt. 139 at 13–14. Second, he argues that a release card is not 3 equivalent to the funds he was entitled to receive because fees deplete the card’s value. [4] Id. at 14 (citing Brown v. Stored Value Cards, Inc., 953 F.3d 567, 575 (9th Cir. 2020)). 5 Defendants counter that the consideration Moyer received is the services and features 6 associated with the card, rather than the return of his money. Dkt. 144 at 3.4 Upon 7 examination, the points the parties raise collapse into the mutual assent analysis. 8 “Consideration is ‘any act, forbearance, creation, modification or destruction of a 9 legal relationship, or return promise given in exchange.’” Labriola v. Pollard Grp., 152 10 Wn.2d 828 , 833 (2004) (quoting King v. Riveland, 125 Wn.2d 500, 505 (1994)). 11 “Consideration is a bargained-for exchange of promises.” Id. (citing Williams Fruit Co. v. 12 Hanover Ins. Co., 3 Wn. App. 276, 281 (1970)). 13 Defendants are correct that courts “generally do not inquire into the adequacy of 14 consideration.” Id. at 834 (citing Browning v. Johnson, 70 Wn.2d 145, 147 (1967). If 15 Moyer in fact assented to receive a card with services and features, those services and 16 features could constitute consideration for Moyer’s agreement to forgo his right to a jury [18] 4 Defendants also argue the Court should follow Allbaugh v. Perma-Bound, No. C0885713-JCC, 2009 WL 10676437 , at *7 (W.D. Wash. Aug. 14, 2009). There, the Court found a modification to an employment contract was supported by consideration because “[t]he [19] arbitration agreement contains an exchange of promises such that both parties for the first time agreed to waive their right to a jury trial to resolve disputes between them.” Id. Allbaugh is 20 distinguishable and persuasive authority only. Unlike Moyer, the plaintiff negotiated terms of the agreement and signed it (albeit under duress). Id. at 2. Moreover, Allbaugh relied on Labriola, 21 where the Washington Supreme Court held that modification to an employment relationship requires independent consideration such as “continued employment and/or continued training,” 22 rather than a “mutual” promise to give up rights. Labriola, 152 Wn.2d at 838. 1 trial and abide by Defendant’s fee schedule. However, that construction of consideration 2 depends on a conclusion that Moyer assented to receive the card’s features. 3 B. Illegality 4 Moyer also contends that he cannot be compelled to arbitrate because the 5 agreement is void as illegal under the Electronic Funds Transfer Act, 15 U.S.C. §§ 1693– 6 1693r, because the cards are not voluntarily requested and because the fees are not 7 permissible. Dkt. 139 at 7 (citing Brown, 953 F.3d at 569 ). He contends that, even if the 8 contract was permitted under state law, the EFTA preempts state law and a contract that 9 is illegal is null from the beginning and unenforceable. Dkt. 139 at 28 (quoting In re 10 Marriage of Hammack, 114 Wn. App. 805 , 810–11 (2003)). 11 However, the Supreme Court distinguishes challenges to the agreement to 12 arbitrate, such as argument that state law prohibits arbitration of certain claims, from 13 challenges to the whole contract “either on a ground that directly affects the entire 14 agreement (e.g., the agreement was fraudulently induced), or on the ground that the 15 illegality of one of the contract’s provisions renders to the whole contract invalid.” 16 Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 444 (2006). It held that 17 arguments that the entire contract is illegal and void ab initio remain subject to an 18 arbitration clause “unless the challenge is to the arbitration clause itself.” Id. at 445–46. 19 Otherwise, a court would be permitted “to deny effect to an arbitration provision in a 20 contract that the court later finds to be perfectly enforceable.” Id. at 448–49. 21 Moyer’s challenge is not directed to the arbitration clause itself—it squarely 22 challenges the entire contract. Therefore, if a contract was formed, Moyer’s claims 1 remain subject to the arbitration clause despite his contention that the entire contract is 2 illegal and void ab initio. 3 C. Mutual Assent 4 Moyer argues that he did not assent to anything when he took the card to get his 5 own money returned. Dkt. 139 at 15. He argues that he negotiated nothing, made no 6 statement of acceptance, and had no duty to object to the unrequested card. Id. at 15–16. 7 Defendants counter that Moyer could have rejected the contractual relationship by calling 8 customer service to request a check for the balance of his card, and his “ability to decline 9 [the release card] shows the voluntary nature of his assent.” Dkt. 144 at 6. 10 To determine mutual assent to contract, the Court must assess Moyer’s intent 11 “based on ‘the reasonable meaning of [his] words and acts’—to assent to the terms of the 12 Agreement.” Reichert, 826 Fed. App’x at 658 (quoting City of Everett, 95 Wn.2d at 855 ). 13 Relevant facts are Moyer’s “‘outward manifestations’” and the “‘circumstances 14 surrounding the transaction[s].’” Id. (quoting Burnett, 196 Wn.2d at 50). 15 The record evidence of Moyer’s outward manifestations and the surrounding 16 circumstances is sparse. As noted, it is possible that Moyer received a Cardholder 17 Agreement with each card. It is undisputed at a minimum that he received an Agreement 18 with his February 2018 card, so the Court focuses its analysis on that interaction. 19 Moyer received a release card from Kitsap County Jail on February 8, 2018. The 20 card was credited with $95.26 at 9:00 p.m., Dkt. 137-3 at 2, and was accompanied by a 21 Cardholder Agreement, most likely tri-folded around the card, see Dkt. 137, ⁋ 12. As 22 noted, the card’s sticker announced that it had already been activated, and the card stated 1 “[b]y accepting and or using this card, you agree to the Account Agreement,” Dkt. 104-1, 2 while the Cardholder Agreement stated “[i]f you do not agree to these terms, do not use 3 the Card and cancel it by calling Customer Service at 1-877-287-2448. Otherwise, your 4 acceptance and/or use of the Card will be evidence of your agreement to these terms.” 5 Dkt. 137-1 at 2; Dkt. 137-2 at 2. 6 Moyer recalls telling a guard that they should return to issuing checks because he 7 could never get all his money back from the cards. Dkt. 138-1 at 37. The guard told him 8 that if he wanted his money back “that’s what I was going to do to get it back, take that 9 card.” Id. There is no evidence of any further conversation. At 10:18 p.m., Moyer 10 withdrew $80.00 from an ATM and incurred a $2.95 fee. Dkt. 137-3 at 2; Dkt. 137, ⁋ 19. 11 The card balance was entirely depleted by fees by March 11, 2018, Dkt. 137-3 at 2. 12 The Court continues to conclude that Moyer’s use of the card did not constitute 13 assent to contract. Under Washington law, “an offeree has a right to make no reply to 14 offers, and his silence in an action cannot be construed as assent to the offer.” 15 Roethemeyer v. Milton, 177 Wash. 650, 658 (1934). “And the courts hold that even 16 though the offer states that silence will be taken as consent, silence on the part of the 17 offeree cannot turn the offer into an agreement, as the offeror cannot prescribe conditions 18 so as to turn silence into acceptance.” Id. While Defendants contend that they only 19 consider a contractual relationship formed upon use of the card, the contractual language 20 says otherwise—the card states that “[b]y accepting or using this card, you agree,” and 21 the Agreement instructs the recipient to call to cancel, otherwise acceptance or use of the 22 card is evidence of agreement. Had Moyer taken the card to the nearest telephone and 1 called to cancel his card, he would have already “accepted” it—he would have taken it 2 from the Kitsap County guard into his possession. Unless Moyer left his money behind, 3 on Defendants’ activated card, leaking money to Defendants’ fees, the Court is entirely 4 skeptical that Defendants would not contend he had entered a contractual relationship. 5 Just like in Brown v. Stored Value Cards, No. 3:15-cv-01370-MO, 2016 WL 6 755625, at *4 (D. Or. Feb. 25, 2016), Moyer was required to take the card when leaving 7 jail if he wanted a return of his money, and had to work through Defendants’ systems, 8 whether by telephone or online, to get it back. And like the plaintiff in Regan v. Stored 9 Value Cards, Inc., 85 F. Supp. 3d 1357, 1264 (N.D. Ga. 2015), aff’d 608 F. App’x 895 10 (11th Cir. 2015), Moyer made no application for the card, was not offered a line of credit 11 he could choose to use, and did not use the card for a long period of time or make 12 payments on it (though he did received the Cardholder Agreement), so analogies to cases 13 involving consumer-initiated transactions where the plaintiff failed to read terms are 14 inapposite. Critically, though, like the plaintiff in Regan, he “received the Card while he 15 was being discharged from jail, i.e. from a condition of absence of liberty of choice which 16 Defendant reasonably could have anticipated.” Id. (emphasis in original). The district 17 courts in Brown and Regan found disputes of fact on acceptance. The plaintiff in Brown 18 understood she could reclaim her money by creating an online account but did not wish 19 to engage with the unknown defendant bank, 2016 WL 755625 , at *3–4. The contractual 20 language in Regan stated that use constitutes acceptance, but the plaintiff was not aware 21 of the language, was minimally familiar with ATM cards, and unsuccessfully attempted 22 to retrieve his funds through his bank before using the card. 85 F. Supp. 3d at 1361 . 1 While the courts in Brown and Regan found questions of fact on acceptance 2 requiring a trial on the issue of arbitrability, the Court does not find a question of fact in 3 this case. Here, the cards clearly state that acceptance constitutes agreement, so there was 4 no way for Moyer to leave the jail with the card and work through Defendants’ 5 instructions for reclaiming his funds without being bound to individual arbitration. 6 Unlike the plaintiff in Pope v. EZ Card & Kiosk LLC, Case No. 15-61046-CIV7 MARRA, 2015 WL 5308852 , at *2 (S.D. Fla. Sept. 11, 2015), who signed a form telling 8 the jail he preferred a card over a mailed check and was compelled to arbitrate, Moyer 9 signed nothing and had no opportunity to avoid Defendants at the point of departure from 10 jail. And unlike the plaintiff in Reyes v. JPay, Inc., et al., No. CV 18-315-R, 2018 WL 11 10811497 (C.D. Cal. June 26, 2018), who could at least avoid a contractual relationship 12 by refraining from using the card while he attempted to cancel it, Moyer lacked even that 13 option. 14 The Court agrees with Moyer that this case should be governed by the Ninth 15 Circuit’s decision in Knutson. In Knutson, the plaintiff purchased a Toyota truck which 16 came with a pre-activated trial subscription to Sirius XM radio. 771 F.3d at 563 . The 17 customer agreement followed in the mail. Id. at 555. The plaintiff did not read the 18 agreement and continued to use the subscription. Id. The Ninth Circuit reasoned that the 19 plaintiff had no reason to act to cancel the relationship when “[h]e was, as far as he knew, 20 only in a contractual relationship with Toyota. A reasonable person in [the plaintiff’s] 21 position could not be expected to understand that purchasing a vehicle from Toyota [22] 1 would simultaneously bind him or her to any contract with Sirius XM, let alone one that 2 contained an arbitration provision without any notice of such terms.” Id. at 566. 3 Moyer, as far as he knew, was simply getting his money back when he left jail. A 4 reasonable person in Moyer’s position could not be expected to understand that he could 5 not leave jail with his own money, a right protected by Washington law, without being 6 bound to a contract with an unknown bank (subject to potentially illegal fees) and 7 renouncing his right to sue or bring a class action. “Accepting” one’s own money, in the 8 only form available, cannot be construed as assent to contract. To decide otherwise would 9 violate the offeree’s right to make no reply to an offer. Roethemeyer, 177 Wash. at 658 . 10 The Court thus concludes that Defendants have not met their burden to show by a 11 preponderance of the evidence that an agreement to arbitrate exists. Knutson, 771 F.3d at 12 565. Defendants’ motion to compel arbitration is DENIED. 13 D. Keefe’s Motion 14 As Moyer formed no contractual relationship with Rapid and Cache Valley, there 15 is no contractual arbitration provision for Keefe to enforce. Therefore, Keefe’s motion to 16 compel arbitration is DENIED. [22] 1 III. ORDER 2 Therefore, it is hereby ORDERED that Rapid and Cache Valley Bank’s motion to 3 compel arbitration, Dkt. 136, is DENIED, and Keefe’s motion to compel arbitration, Dkt. 4 134, is also DENIED. 5 Dated this 2nd day of June, 2021. A [7] BENJAMIN H. SETTLE 8 United States District Judge