JEFFREY REICHERT V. RAPID INVESTMENTS, INC., 56 F.4th 1220

Gary Moyer was jailed three times in Kitsap County; on each release the jail returned his confiscated cash via a prepaid "release" card issued by Rapid (Cache Valley Bank / Rapid Investments) — no cash or check option was offered.
The release cards were delivered pre-activated and bore a notice that "By accepting and or using this card, you agree to the Account Agreement;" Moyer received a written Agreement with his February 2018 card.
The Agreement included a mandatory arbitration clause (claims > $15,000) and a $2.50/week maintenance fee starting three days after card issuance; ATM withdrawals charged $2.95.
Moyer withdrew most funds from the February 2018 card the same day it was issued; on prior releases maintenance fees were charged before any use and substantially reduced his balances.
Rapid moved to compel arbitration; district court denied the motion finding no assent; Ninth Circuit, after remand, affirmed, holding no contract was formed because Moyer did not objectively manifest assent by retention or use of the card.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether mere receipt/retention of a pre-activated release card (without use) constitutes acceptance of the cardholder Agreement	Moyer: silence/retention is not assent; he had no duty to reject and did not encourage silence to be acceptance	Rapid: Agreement language states acceptance by "accepting and/or using" the card; retention evidences assent	Held: Retention/silence is not acceptance under Washington law; no duty to act existed, so no contract formed on receipt
Whether use (withdrawing his own funds) constitutes assent to the Agreement/arbitration clause	Moyer: withdrawing his own money to avoid losing funds does not show objective assent — card was pre-activated, fees started after 3 days, and alternatives were unclear/slow	Rapid: use of the card confers a benefit and therefore manifests assent to the terms	Held: Use did not manifest assent — context (pre-activated card, his money, compressed fee timeline, no reasonable opportunity to reject) defeats inference of acceptance
Who decides arbitrability when formation is challenged	Moyer: challenge to contract formation is for the court to decide	Rapid: arbitrator should decide threshold issues per Agreement	Held: Formation challenges are for the court; because no contract was formed, arbitration clause does not apply

Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983) (FAA reflects federal policy favoring arbitration)
Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63 (2010) (arbitration is a matter of contract; courts decide certain gateway issues)
Granite Rock Co. v. Int'l Bhd. of Teamsters, 561 U.S. 287 (2010) (courts must be satisfied parties agreed to arbitrate)
First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995) (ordinary state-law contract principles govern formation)
Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440 (2006) (distinguishes validity-of-contract defenses for arbitrator vs court)
Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395 (1967) (separability doctrine in arbitration law)
Nguyen v. Barnes & Noble Inc., 763 F.3d 1171 (9th Cir. 2014) (apply state contract formation rules to arbitration clauses)
Knutson v. Sirius XM Radio Inc., 771 F.3d 559 (9th Cir. 2014) (party seeking arbitration must prove agreement by preponderance)
Keystone Land & Dev. Co. v. Xerox Corp., 94 P.3d 945 (Wash. 2004) (mutual assent and consideration required for contract formation)
City of Everett v. Sumstad's Est., 631 P.2d 366 (Wash. 1981) (objective manifestation rule governs assent)
Jones v. Brisbin, 247 P.2d 891 (Wash. 1952) (acceptance of a benefit can imply assent when reasonable opportunity to reject exists)
Brown v. Stored Value Cards, Inc., 953 F.3d 567 (9th Cir. 2020) (context on prepaid release cards used on jail/prison populations)