United States District Court, W.D. Washington, Tacoma
JEFFREY REICHERT, individually and on behalf of all other similarly situated,, Plaintiff,
KEEFE COMMISSARY NETWORK, L.L.C., d/b/a Access Corrections; Rapid Investments, Inc., d/b/a Rapid Financial Solutions, d/b/a Access Freedom; and Cache Valley Bank, Defendants.
ORDER DENYING MOTIONS TO COMPEL ARBITRATION DKT. ##
104 & 106
B. Leighton United States District Judge.
RONALD B. LEIGHTON
MATTER is before the Court on the Defendants' Motions to
Compel Arbitration of Plaintiff Gary Moyer's Claims [Dkt.
#104, 106]. The Court has reviewed the parties'
materials, its prior Order Denying Motion to Compel
Arbitration [Dkt. #53] (re: Jeffrey Reichert), and the Order
on Motion for Class Certification [Dkt. #87]. Like Mr.
Reichert, Moyer received a preloaded debit card
(“Card”) as he was released from detention to
reimburse him for cash that had been confiscated when he was
admitted. The only difference between Mr. Reichert and Mr.
Moyer is that Moyer received his Card along with a two-page
“Cardholder Terms and Conditions” document.
Court DENIES the Motions for the reasons
recited in the Court's prior Order Denying Motion to
Compel Arbitration. Dkt. # 53. The facts and circumstances of
Gary Moyer's claims against the defendants are identical
in all material respects to those of Jeffrey Reichert.
defendant seeking to enforce an arbitration clause in a
contract must first establish the existence of a valid and
enforceable contract. It is “axiomatic that
‘[a]rbitration is a matter of contract and a party
cannot be required to submit any dispute which he has not
agreed so to submit.'” Sanford v. Member Works,
Inc., 483 F.3d 956, 962 (9th Cir. 2007) (quoting
AT&T Tech. Inc. v. Commc'n Workers of
Am., 457 U.S. 643, 648 (1986)). As this Court noted in
denying Defendants' motions to compel arbitration of
Plaintiff Jeffrey Reichert's claims:
The front and center issue in these two motions is whether a
binding contract, including a mandatory arbitration clause,
was formed under the circumstances of this case.
Dkt. # 53, p. 1, lns. 20-22.1 Put simply, “[w]ithout a
contract, there is no Arbitration Agreement, no Arbitrator,
and no Delegation of Power to an Arbitrator to decide the
question of arbitrability.” Id., p. 3, lns.
Mr. Moyer was released from Kitsap County Jail, he was
required to receive his confiscated funds on Defendants'
fee-laden debit card. There was no other option provided to
him. Mr. Moyer, like Mr. Reichert, “did not request or
apply for the Card.” Id., p. 2, ln. 10. He
“never agreed to receive the Card.” Id.
And, like Mr. Reichert, “[h]e did not sign any document
agreeing to the Card or its terms” and “had no
opportunity to reject the Card (or even to affirmatively
accept it).” Id. This Court already properly
concluded that “[a]ll contracts, including those to
arbitrate disputes, must have mutual assent” and that
no enforceable contract bound Mr. Reichert to arbitrate his
claims. Id., p. 5, lns. 4-6.
mere fact that Mr. Moyer received the “Cardholder Terms
and Conditions” as he was being released does not
change the outcome. “[A]n offeree, regardless of
apparent manifestation of his consent, is not bound by
inconspicuous contractual provisions of which he was unaware,
contained in a document whose contractual nature is not
obvious.” Knutson v. Sirius XM Radio Inc., 771
F.3d 559, 566 (9th Cir. 2014). Here, the front of the Card
given to Mr. Moyer stated, “ATTENTION! This card has
already been activated!” Dkt. # 104-1, Ex. 1. The
attached document containing the “Cardholder Terms and
Conditions” mostly contains a sea of fine print with
the small heading “CARDHOLDER AGREEMENT” in the
upper corner. Dkt. # 104-1, Ex. 2. The only prominent text in
the document explains how to register the card, how to avoid
fees, and congratulates the reader on “your new debit
card!” Id. Only on the back of the Card
itself, in small print, is the reader informed that “By
accepting and or using this card, you agree to the Account
Agreement.” Dkt. # 104-1, Ex. 1.
prominent notification on the Card and the attached documents
suggests that the Card had already been accepted by
Mr. Moyer. Such statements do not communicate that there is
an offer on the table-indeed, they contradict themselves.
Even if Mr. Moyer read the statements on the Card and
document (which is highly doubtful), it is far from obvious
how he could reject a pre-activated card; if he simply did
nothing, the Card would begin incurring fees.
contradictions, combined with the coercive manner in which
the Card was distributed, preclude the ...