THE OREGON CLASS’S MEMORANDUM IN OPPOSITION TO

DEFENDANTS’ MOTION TO COMPEL ARBITRATION

Megan E. Glor, OSB No. 930178

megan@meganglor.com

MEGAN E. GLOR, ATTORNEYS AT LAW, P.C.

707 NE Knott Street, Suite 101

Portland, OR 97212

Telephone: (503) 223-7400

Facsimile: (503) 751-2071

Chris R. Youtz, Pro Hac Vice

chris@sylaw.com

Richard E. Spoonemore, Pro Hac Vice

rspoonemore@sylaw.com

SIRIANNI YOUTZ SPOONEMORE HAMBURGER PLLC

3101 Western Ave., Suite 350

Seattle, WA 98121

Telephone: (206) 223-0303

Facsimile: (206) 223-0246

Attorneys for Plaintiff / Oregon Class

[additional counsel listed on signature page]

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

DANICA LOVE BROWN, individually and on 

behalf of all others similarly situated,

Plaintiff,

v.

STORED VALUE CARDS, INC. (d/b/a NUMI 

FINANCIAL); and CENTRAL NATIONAL 

BANK AND TRUST COMPANY, ENID, 

OKLAHOMA,

Defendants.

NO. 3:15-cv-01370-MO

THE OREGON CLASS’S

MEMORANDUM IN OPPOSITION

TO DEFENDANTS’ MOTION TO

COMPEL ARBITRATION

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Table of Contents

I. Introduction.......................................................................................................................1

II. Facts ....................................................................................................................................2

III. Defendants’ Cardholder Agreement Was Not Used with all Class 

Members and Cannot Be the Basis for an Order To Compel NonRecipients To Arbitrate their Claims..............................................................................4

IV. Members of the Class Did Not Agree to Arbitrate Their Claims 

Against Any Defendant ...................................................................................................5

A. Defendants Have the Burden of Proving Class Members 

Voluntarily Entered into a Contract Requiring Arbitration. .............................5

B. There Is No Contract Because There Is No Mutual Assent. ..............................7

1. Receiving an Unrequested Card and Cardholder 

Agreement Does Not Create Mutual Assent. .............................................7

2. Mutual Assent Is Not Shown By Using the Card To 

Retrieve Your Own Money..........................................................................10

3. Mutual Assent Is Not Shown By Not Responding To 

An Opt-Out Provision..................................................................................13

C. There Is No Contract Because There Is No Consideration. .............................17

D. A Trial Is Not Required To Deny Defendants’ Motion. ...................................20

E. Unconscionability Is Not An Issue. .....................................................................21

V. Defendants Waived Any Right They Had To Compel the Class To 

Arbitrate their Claims.....................................................................................................22

VI. Conclusion .......................................................................................................................25

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Table of Authorities

Cases

Ackerberg v. Citicorp USA, Inc., 

898 F. Supp. 2d 1172 (N.D. Cal. 2012) .............................................................................15

Alde, S.A. v. United States, 

28 Fed. Cl. 26 (1993) .............................................................................................................9

Anderson v. United States, 

344 F.3d 1343 (Fed. Cir. 2003).............................................................................................7

AT&T Techs. v. Communs. Workers of Am., 

475 U.S. 643, 106 S. Ct. 1415, 89 L.Ed.2d 648 (1986).........................................................5

Brown v. Stored Value Cards, Inc., 

2016 U.S. Dist. LEXIS 23026 (D. Or. February 25, 2016) ...............................................12

Brown v. Stored Value Cards, Inc., 

953 F.3d 567 (9th Cir. 2020)...........................................................................................1, 12

Card v. Wells Fargo Bank, N.A., 

No. 3:19-cv-1515-SI, 2020 U.S. Dist. LEXIS 45117 (D. Or. Mar. 16, 

2020) .....................................................................................................................................20

Citibank S. Dakota N.A. v. Santoro, 

210 Or. App. 344, 150 P.3d 429 (2006) .............................................................................12

City of Cincinnati v. United States, 

153 F.3d 1375 (Fed. Cir. 1998).............................................................................................9

Comer v. Micor, Inc., 

436 F.3d 1098 (9th Cir. 2006)...............................................................................................6

Daugherty v. Experian Info. Sols., Inc., 

847 F. Supp. 2d 1189 (N.D. Cal. 2012) .......................................................................15, 16

Deloe v. Dep't Stores Nat'l Bank, 

No. 3:17-cv-00022-SB, 2018 U.S. Dist. LEXIS 239247 (D. Or. Mar. 

23, 2018) ...............................................................................................................................15

Edminster, Hinshaw, Russ & Assocs. v. Downe Twp., 

953 F.3d 348 (5th Cir. 2020)...............................................................................................22

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Edwards v. First American Corp., 

289 F.R.D. 296 (C.D. Cal. 2012).........................................................................................24

Emmert v. Clackamas Cty., 

No. 3:13-cv-01317-YY, 2016 U.S. Dist. LEXIS 182262 (D. Or. Oct. 

17, 2016) ...............................................................................................................................17

Endeavour Structured Equity & Mezzanine Fund I, L.P. v. Engel (In re C 

& K Mkt., Inc.), 

Nos. 13-64561-fra11, 14-06119-fra, 2015 Bankr. LEXIS 1347 (Bankr. 

D. Or. Apr. 16, 2015) ..........................................................................................................18

First Options of Chi., Inc. v. Kaplan, 

514 U.S. 938, 115 S. Ct. 1920, 131 L. Ed. 2d 985 (1995).....................................................6

Garbacz v. A.T. Kearny, Inc., 

No. C05-Garbacz, 2006 U.S. Dist. LEXIS 20135, 2006 WL 870690 

(N.D. Cal. Apr. 4, 2006) .......................................................................................................6

Gas Pipe Line Co., LLC v. Permanent Easement for 2.59 Acres, 

No. 4:17-CV-00289, 2019 U.S. Dist. LEXIS 209252 (M.D. Pa. Oct. 8, 

2019) .....................................................................................................................................14

Glob. Exec. Mgmt. Sols. v. IBM, 

260 F. Supp. 3d 1345 (D. Or. 2017).....................................................................................7

Gunn v. NPC Int’l, Inc., 

625 F. App’x 261 (6th Cir. 2015) .......................................................................................24

Hilburn v. Encore Receivable Mgmt., 

No. 06-6096-HO, 2007 U.S. Dist. LEXIS 103273 (D. Or. July 11, 

2007) .....................................................................................................................................15

Hoffman v. Geico Ins. Co., 

347 F. App'x 295 (9th Cir. 2009)........................................................................................20

Holl v. UPS, 

No. 16-cv-05856-HSG, 2017 U.S. Dist. LEXIS 153317 (N.D. Cal. 

Sep. 18, 2017).........................................................................................................................6

In re Citigroup, Inc.,

376 F.3d 23 (1st Cir. 2004)..................................................................................................23

In re Cox Enters., Inc. Set-top Cable Television Box Antitrust Litig.,

790 F.3d 1112 (10th Cir. 2015)...........................................................................................23

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Ken Hood Constr. Co. v. Pac. Coast Constr., Inc., 

201 Or. App. 568, 120 P.3d 6 (2005) ...................................................................................7

Kingsbury v. U.S. Greenfiber, LLC, 

2012 WL 2775022 (C.D. Cal. June 29, 2012) ..............................................................23, 24

Knutson v. Sirius XM Radio Inc., 

771 F.3d 559 (9th Cir. 2014).....................................................................................5, 14, 15

Laflamme v. Hoffman, 

148 Me. 444, 95 A.2d 802 (1953)........................................................................................18

Lowman v. Citibank (S.D.), N.A., 

No. CV 05-8097-RGK (FMOx), 2006 U.S. Dist. LEXIS 96975 (C.D. 

Cal. Mar. 24, 2006)........................................................................................................15, 16

Malan v. Tipton, 

349 Or. 638, 247 P.3d 1223 (2011) .....................................................................................14

Martin v. Yasuda, 

829 F.3d 1118 (9th Cir. 2016).................................................................................22, 23, 24

McCarthy v. Providential Corp., 

No. C94-0627 FMS, 1994 U.S. Dist. LEXIS 10122, 1994 WL 387852 

(N.D. Cal. July 19, 1994) ......................................................................................................6

Milbourne v. JRK Residential Am., LLC, 

2016 WL 1071564 (E.D. Va. Mar. 15, 2016)......................................................................24

Multicare Med. Ctr. v. Dep’t of Soc. & Health Servs., 

114 Wn.2d 572, 790 P.2d 124 (1990) .................................................................................19

Newirth v. Aegis Senior Comtys. Martin, LLC, 

931 F.3d 935 (9th Cir. 2019).........................................................................................23, 24

Nguyen v. Barnes & Noble Inc., 

763 F.3d 1171 (9th Cir. 2014)...............................................................................................6

Norcia v. Samsung Telcoms. Am., LLC, 

845 F.3d 1279 (9th Cir. 2017)...............................................................................................6

Oliveira v. New Prime, Inc., 

424 F. Supp. 3d 206 (D. Mass. 2019).................................................................................24

Owings v. Georgia Railroad Bank, 

188 Ga. App. 265, 372 S.E.2d 825 (Ga. App. 1988).........................................................19

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Prowant v. Fed. Nat’l Mortg. Ass’n, 

255 F. Supp. 3d 1291 (N.D. Ga. 2017) ..............................................................................24

Ranginwala v. Citibank, N.A., 

No. 18-cv-14896, 2020 U.S. Dist. LEXIS 217307 (D.N.J. Nov. 19, 

2020) ...............................................................................................................................15, 16

Reed v. Ezelle Inv. Props., 

353 F. Supp. 3d 1025 (D. Or. 2018).....................................................................................7

Regan v. Stored Value Cards, Inc., 

85 F. Supp. 3d 1357 (N.D. Ga. 2015) ..................................................................................9

Reichert v. Keefe Commissary Network LLC, 

No. C17-5848 BHS, 2021 U.S. Dist. LEXIS 103810 (W.D. Wash. 

June 2, 2021) ..............................................................................................................9, 10, 21

Rowland v. Sandy Morris Fin. & Estate Planning Servs., LLC, 

993 F.3d 253 (4th Cir. 2021)...............................................................................................20

Schafer v. Fraser, 

206 Or. 446, 290 P.2d 190 (1955) .......................................................................................18

Schnabel v. Trilegiant Corp., 

697 F.3d 110 (2d Cir. 2012)................................................................................................13

Scott v. Family Dollar Stores, Inc., 

2017 WL 412654 (W.D.N.C. Jan. 4, 2017) ........................................................................23

Stephen Haskell Law Offices, PLLC v. Westport Ins. Corp., 

2011 U.S. Dist. LEXIS 37360 (E.D. Wash. Apr. 5, 2011).................................................19

Suitter v. Thompson et ux., 

225 Or. 614, 358 P.2d 267 (1960) .......................................................................................14

Sw. Or. Pub. Def. Servs., Inc. v. Dep’t of Revenue, 

312 Or. 82, 817 P.2d 1292 (1991) .......................................................................................19

UMG Recordings, Inc. v. Augusto, 

628 F.3d 1175 (9th Cir. 2011).............................................................................................14

Volt Info. Scis., Inc. v. Bd. of Trs. of the Leland Stanford Jr. Univ., 

489 U.S. 468, 109 S. Ct. 1248, 103 L. Ed. 2d 488 (1989).....................................................6

Wilson v. Huuuge, Inc., 

944 F.3d 1212 (9th Cir. 2019)...............................................................................................5

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Wisconsin & Michigan R. v. Powers, 

191 U.S. 379, 24 S. Ct. 107, 48 L. Ed. 229 (1903)..............................................................18

Other Authorities

15 U.S.C. § 1693i .......................................................................................................................12

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I. Introduction

When Oregon Class members were arrested and detained, any cash they had was 

confiscated and held for them until they were released. Defendants convinced the 

detention facilities to use them to return this money through prepaid debit cards rather 

than in cash or by check. Defendants did not charge facilities for this service. They

profited by charging “maintenance” fees to card recipients for simply possessing the card 

and other fees for withdrawing money or checking the account balance. Oregon Class 

members had to accept these fee-laden release cards to obtain the money they were owed. 

Class members should not have been required to obtain their funds through 

release cards under non-negotiable terms of a cardholder “agreement” that was 

purportedly handed to them when they received the unrequested cards. And under the 

Electronic Fund Transfer Act (“EFTA”), these cards are illegal because they were not 

voluntarily requested by Class members and because the fees charged were not 

permissible. Brown v. Stored Value Cards, Inc., 953 F.3d 567, 569 (9th Cir. 2020). Defendants 

contend, however, that the Oregon Class cannot continue to challenge these cards in court 

because the cardholder agreement contains a clause requiring arbitration of disputes.

Defendants’ motion to compel arbitration under that clause should be denied. 

Defendants cannot prove – as they must to compel arbitration – that Oregon Class 

members voluntarily assented to the terms of any cardholder agreement, including any 

arbitration provision. Their motion fails to address a key, undisputed fact: Class members 

had to accept the release card if they wanted their own money back – they had no choice.

And unlike cases Defendants cite where consumers opened accounts to obtain credit, no

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Class member requested a release card as the means to have money returned. And credit 

card customers always had the option to take their loan requests to other vendors; Class 

members had no choice but to accept release cards and do business with Defendants if 

they wanted their money back.

Defendants’ motion is brought against all Oregon Class members. But not all Class 

members received the proffered cardholder agreement with its arbitration clause. 

Defendants previously acknowledged that cardholder agreements issued when Republic 

Bank became Numi’s partner bank did not include an arbitration clause. Class members 

receiving those and other cardholder agreements cannot be compelled to arbitrate. 

Also, Defendants have long given up any right they had to seek arbitration. This 

Court found Defendants waived the right to require Plaintiff Danica Love Brown to 

arbitrate her claims by bringing motions on the merits of the claims she raised on behalf 

of the Class and using this judicial forum to obtain discovery. After waiving any right to 

arbitration, Defendants continued with summary judgment motions that successfully 

dismissed all claims in this case. After those orders were reversed by the Ninth Circuit, 

Defendants immediately filed an additional motion for summary judgment and a motion 

to strike the class allegations, further attempting to use this forum to eliminate claims 

raised on behalf of the Class. By their actions, Defendants also waived their right to assert

any arbitration provision against other Class members.

II. Facts

The pertinent facts are simple. Ms. Brown was arrested by Portland Police during 

a peaceful protest in 2014. When booked into custody, she possessed $30.97, which was 

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confiscated and held for her. Like other Class members, her money was transferred to an 

account controlled by Defendants without her permission or knowledge. Those funds 

were used to load a prepaid debit card handed to her when she was released a few hours 

after her arrest. She and other Class Members had no option to receive back their money 

other than through the preactivated release card. 

A “monthly” maintenance fee of $5.95 – almost 20% of her funds – was taken from 

the release card account five days after the card was issued. Ms. Brown was not aware

her balance had been reduced by that fee until her card was rejected for having 

insufficient funds to complete a transaction, which also resulted in an additional charge 

to her account. The remaining balance was later depleted through a final “maintenance 

fee.” Brown Decl., ECF No. 173 at ¶¶ 5-6, 13, 15, 28. 

Ms. Brown filed this class action lawsuit with claims for conversion, unjust 

enrichment, illegal takings, and violations of the EFTA. Defendants responded with a 

motion to compel Ms. Brown to arbitrate those claims under the terms of their cardholder 

agreement. ECF No. 22. That motion was denied, and a trial was set to resolve factual 

disputes related to the arbitration provision. ECF No. 54, 61. Defendants then filed 

motions to dismiss, including a successful motion to dismiss the EFTA claim, sought and 

participated in discovery, and attempted to obtain favorable, precedential judicial 

decisions on the merits of Plaintiff’s claims. As a result, this Court held Defendants 

waived their right to seek arbitration and struck the trial date. ECF No. 144. Defendants 

did not appeal that decision. Instead, they successfully pursued motions on summary 

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judgment to dismiss the remaining claims. All dismissals were later reversed by the Ninth 

Circuit. 

After this matter returned from appeal, Defendants filed an additional motion for 

summary judgment, which included a motion to strike the class allegations. Both were 

denied. The Court then certified an Oregon Class and established a briefing schedule for 

Defendants’ motion to compel the class to arbitrate its claims. For the reasons stated 

below, this motion should be denied.

III. Defendants’ Cardholder Agreement Was Not Used with all Class 

Members and Cannot Be the Basis for an Order To Compel NonRecipients To Arbitrate their Claims.

The Oregon Class includes persons who were taken into custody in Oregon and 

issued unrequested release cards from July 22, 2014, to the present and paid fees or 

charges associated with those cards. Excluded from the class are persons who received 

their release cards from April 1, 2017, to April 30, 2018, who did not opt out of the 

settlement class in Humphrey v. Stored Value Cards, No. 1:18-CV-01050 (N.D. Ohio). ECF 

No. 249 at 17.

Defendants’ motion seeks to compel members of the Oregon Class to arbitrate 

their claims under the terms of a cardholder agreement (ECF No. 149-6) available at the 

Multnomah County jail when Plaintiff was detained. Defendants provide no evidence 

that this document was used at other facilities in Oregon.1 This document identifies 

1 Those other Oregon facilities include Curry County, Columbia County, and Lincoln 

County. Defendant Stored Value Cards, Inc.'s Responses and Objections to Plaintiff’s 

First Interrogatories at 8, Declaration of Chris R. Youtz, Ex. A.

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Defendant Central National Bank and Trust Company (“CNB”) as Defendant Numi’s 

participating bank. In 2015, CNB terminated its relationship with Numi,2 who obtained a 

new participating bank. Numi acknowledges that the cardholder agreement used with a 

successor bank (Republic Bank) does not contain an arbitration clause. ECF No. 235 at 20. 

Defendants have presented no evidence or argument to support an order compelling 

arbitration of Class member claims under any cardholder agreement other than the one 

proffered in their motion. No order compelling arbitration should apply to Class 

members detained at facilities other than Multnomah County jail or any Oregon facility 

after CNB terminated its agreement with Numi in 2015. 

IV. Members of the Class Did Not Agree to Arbitrate

Their Claims Against Any Defendant

A. Defendants Have the Burden of Proving Class Members Voluntarily 

Entered into a Contract Requiring Arbitration.

“[A]rbitration is a matter of contract and a party cannot be required to submit to 

arbitration any dispute which he has not agreed so to submit.” AT&T Techs. v. Communs.

Workers of Am., 475 U.S. 643, 648, 106 S. Ct. 1415, 1418, 89 L.Ed.2d 648, 655 (1986). And 

courts determine “whether a valid agreement to arbitrate exists.” Wilson v. Huuuge, Inc., 

944 F.3d 1212, 1219 (9th Cir. 2019). “[T]he party seeking to compel arbitration, has the 

burden of proving the existence of an agreement to arbitrate by preponderance of the 

evidence.” Knutson v. Sirius XM Radio Inc., 771 F.3d 559, 565 (9th Cir. 2014). “The party 

opposing the motion on the ground that there is no binding agreement to arbitrate should 

2 Rule 30(b)(6) Deposition of CNB through Dennis Gerhard at 72, Youtz Decl. Ex. B.

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receive ‘the benefit of all reasonable doubts and inferences that may arise.’” Garbacz v.

A.T. Kearny, Inc., No. C05-Garbacz, 2006 U.S. Dist. LEXIS 20135, 2006 WL 870690, at *2 

(N.D. Cal. Apr. 4, 2006) (quoting McCarthy v. Providential Corp., No. C94-0627 FMS, 1994 

U.S. Dist. LEXIS 10122, 1994 WL 387852, at *2 (N.D. Cal. July 19, 1994)). Holl v. UPS, No. 

16-cv-05856-HSG, 2017 U.S. Dist. LEXIS 153317, at *7 (N.D. Cal. Sep. 18, 2017). “[T]he 

‘liberal federal policy regarding the scope of arbitrable issues is inapposite’ when the 

question is ‘whether a particular party is bound by the arbitration agreement.’ Comer v. 

Micor, Inc., 436 F.3d 1098, 1104, n.11 (9th Cir. 2006) (emphasis omitted); see also, Volt Info. 

Scis., Inc. v. Bd. of Trs. of the Leland Stanford Jr. Univ., 489 U.S. 468, 478, 109 S. Ct. 1248, 103 

L. Ed. 2d 488 (1989) (‘[T]he FAA does not require parties to arbitrate when they have not 

agreed to do so....’).” Norcia v. Samsung Telcoms. Am., LLC, 845 F.3d 1279, 1291 (9th Cir. 

2017).

To determine whether an agreement exists, “federal courts 'apply ordinary statelaw principles that govern the formation of contracts.'“ Nguyen v. Barnes & Noble Inc., 763 

F.3d 1171, 1175 (9th Cir. 2014) (quoting First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 

944, 115 S. Ct. 1920, 131 L. Ed. 2d 985 (1995)). In Oregon:

Under Oregon law, whether a contract exists is a question of 

law. Wieck v. Hostetter, 274 Ore. App. 457, 471, 362 P.3d 254 

(2015). A “contract is most commonly formed by an offer, an 

acceptance of that offer, and an exchange of consideration.”

Moro v. State of Oregon, 357 Ore. 167, 196, 351 P.3d 1 (2015). 

“Oregon applies an objective theory of contracts.” Wieck, 274 

Ore. App. at 471. That is, the existence and terms of a contract 

are determined by the evidence of the parties' communications 

and acts, not their subjective understandings. Rhoades v. Beck, 

260 Ore. App. 569, 572, 320 P.3d 593 (2014). Oregon follows the 

mirror image rule of offer and acceptance. Arboireau v. AdidasCase 3:15-cv-01370-MO Document 257 Filed 08/27/21 Page 13 of 34
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Salomon AG, 347 F.3d 1158, 1163 (9th Cir. 2003). “In Oregon, it 

is settled that the acceptance of an offer must correspond to the 

offer at every point, leaving nothing open for future 

negotiations.” Id. (internal quotation and alterations omitted). 

“The acceptance must be positive, unconditional, unequivocal, 

and unambiguous, and must not change, add to, or qualify the 

terms of the offer.”

Reed v. Ezelle Inv. Props., 353 F. Supp. 3d 1025, 1031 (D. Or. 2018).

No member of the Oregon Class is bound by a cardholder agreement with an 

arbitration provision. Defendants have not shown they provided consideration and 

obtained mutual assent to form a binding contract with Class members. 

B. There Is No Contract Because There Is No Mutual Assent.

1. Receiving an Unrequested Card and Cardholder Agreement Does 

Not Create Mutual Assent.

A contract requires mutual assent. The existence of a contract depends on whether 

a reasonable person, based upon objective manifestation of assent, and all the 

surrounding circumstances, would conclude that the parties intended to be bound by the 

contract. Glob. Exec. Mgmt. Sols. v. IBM, 260 F. Supp. 3d 1345, 1368 (D. Or. 2017); Ken Hood 

Constr. Co. v. Pac. Coast Constr., Inc., 201 Or. App. 568, 578, 120 P.3d 6, 11 (2005) (“In 

determining whether a contract exists and what its terms are, we examine the parties’ 

objective manifestations of intent, as evidenced by their communications and acts.”) “As 

a threshold condition for contract formation, there must be an objective manifestation of 

voluntary, mutual assent.” Anderson v. United States, 344 F.3d 1343, 1353 (Fed. Cir. 2003).

Class members released from custody were handed an activated release card 

instead of the cash that was taken from them. Defendants contend their cardholder 

agreement accompanied those cards. That document proclaimed recipients immediately 

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agreed to its terms when the release card was handed to them.

3

 Thus, Defendants argue, 

Class members became committed to a contract before they could even read the terms. 

There was no negotiation or discussion over any terms in those agreements. Indeed, they 

had no opportunity to simply reject the card, or any terms it came with, without forfeiting 

their money. And Defendants preordained those terms would be accepted by starting the 

clock to impose fees under the cardholder agreement when the cards were activated 

before being handed to Class members. And if the Class member left the card at the jail

or anywhere else, fees would accumulate until the balance was depleted:

Q: And at what point in the process is the card activated?

A: The card is activated, I believe, at the point of the load.

Q: At the load, okay. And is it from that particular point in time 

that any monthly or weekly fees would be assessed for the card, 

that the clock would start running?

A: I believe so.

Q: So if an individual were to leave the card on the desk at the 

jail, it would be activated?

A: Yes.

* * * * *

Q: And if a cardholder -- the card is activated but a cardholder 

does not use the card, if there are monthly account maintenance 

fees on that card, will they be charged until the balance is

depleted?

A: I believe so.

3 The Cardholder Agreement states: “By accepting this Card, you agree to be bound 

by these terms and conditions (the ‘Agreement’).“ ECF No. 149-6 at 2.

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Rule 30(b)(6) Deposition of CNB through Dennis Gerhard at 82-83 and 220. Youtz Decl. 

Ex. B.

There was no objective manifestation of assent: “’compelled acquiescence’ does 

not indicate intent to enter into a contract; rather, ‘voluntary assent’ is necessary.” City of 

Cincinnati v. United States, 153 F.3d 1375, 1378 (Fed. Cir. 1998), quoting Alde, S.A. v. United 

States, 28 Fed. Cl. 26, 32 (1993). This is not a voluntary agreement; it is a mandatory 

program. Thus, it is understandable why courts have held cardholder agreements 

associated with Numi’s release card (Regan v. Stored Value Cards, Inc., 85 F. Supp. 3d 1357 

(N.D. Ga. 2015)) and other release card programs (e.g., Reichert v. Keefe Commissary 

Network LLC, No. C17-5848 BHS, 2021 U.S. Dist. LEXIS 103810 (W.D. Wash. June 2, 2021)), 

are not binding and their arbitration clauses unenforceable.

Regan held that receiving and using an unrequested prepaid debit card from Numi 

was not binding consent to the arbitration provision in the cardholder agreement that 

came with the card. “Defendants’ cited authority is even less persuasive due to another 

distinguishing factor: Plaintiff received the Card while he was being discharged from jail, 

i.e. from a condition of absence of liberty of choice which Defendant reasonably could have 

anticipated. Regan, 85 F. Supp. 3d at 1364 (emphasis in original).

As here, the class members in Reichert had no choice but to accept a release card 

for the return of money held for them while they were in detention. An arbitration 

provision was included in the cardholder agreement accompanying those cards, which 

Rapid Financial sought to enforce against class representative Gary Moyer. That motion 

to compel was denied:

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Moyer, as far as he knew, was simply getting his money back 

when he left jail. A reasonable person in Moyer's position could 

not be expected to understand that he could not leave jail with 

his own money, a right protected by Washington law, without 

being bound to a contract with an unknown bank (subject to 

potentially illegal fees) and renouncing his right to sue or bring 

a class action. “Accepting” one's own money, in the only form 

available, cannot be construed as assent to contract. To decide 

otherwise would violate the offeree's right to make no reply to 

an offer.

Reichert, 2021 U.S. Dist. LEXIS 103810 at *19. 

Defendants argue that Class members had “choices” because if they jumped 

through the right hoops, went to the right banks, all before the first maintenance fee 

kicked in, that they could get their money back fee-free. The existence of paths that could 

possibly be followed to avoid fees, however, does not determine whether there was a 

binding agreement created when the release card was handed to them. Fees are but one 

part of the cardholder agreement requirements and there are 33 numbered paragraphs of 

terms, plus 10 subparts in the arbitration provision, that Class members supposedly 

agreed to by “accepting” the card. There still must be mutual assent before a contract is 

made and arbitration is mandated. Offering clues to avoid fees does not fulfill that 

requirement.

2. Mutual Assent Is Not Shown By Using the Card To Retrieve Your 

Own Money.

Defendants then contend that Class members objectively manifested their assent 

to the cardholder agreement, and its arbitration provision, by using the release card to 

retrieve their money. But a reasonable person would doubt that Defendants were even 

looking for any assent from Class members to the cardholder agreement. Defendants

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knew Class members had no choice but to accept the card if they wanted their money 

back and did not wait for any sign of acquiescence before enforcing the terms of the nonnegotiated contract. As noted above, the first “maintenance fee” required by the 

cardholder agreement occurred five days after the card was “activated” before it was 

handed to Class members. That fee was assessed regardless of whether the card had been

used.4 If the card was never used, maintenance fees continued to be withdrawn until no 

funds remained in the account.5 “Use of the card” was irrelevant to mutual assent.

Also, a reasonable person would not see using the card as an objective expression 

of assent to a contract with arbitration terms, but, rather, as something to be expected 

from Class members to retrieve their own money, particularly when they were leaving a 

facility where they had no money other than what was on the card. The alternative – not 

using the card – meant Class members would be unable to obtain their money, which 

would then be consumed by maintenance fees. The surrounding circumstances, 

including the facts that Class members did not request the release cards and had no choice 

but to accept the release card to get their money back, manifest an involuntary 

arrangement, not one created with mutual assent. 

As this Court recognized, any “choice” to use the Card was not a choice at all: “Ms. 

Brown had to take the card and had to work through the Defendants’ system in order to 

4 “If the cardholder doesn't use the card before the monthly maintenance fee kicks in, 

the monthly maintenance fee will be charged.” Golden Dep., ECF No. 171-8 at 3.

5

Id. at 5: “If a cardholder voluntarily does not use the card, then yes, the balance will 

be subject to the terms and conditions, which includes fees. “

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get her money back.” Brown v. Stored Value Cards, Inc., 2016 U.S. Dist. LEXIS 23026, *10 

(D. Or. February 25, 2016) (emphasis in original) (also noting if releasees “refused to take

the Card, they are not refunded their money in any other form whatsoever.”) In fact, 

Defendant CNB became concerned about the inmates’ lack of choice and demanded that 

Numi offer an alternative to the release card at the time the inmates were being released. 

ECF No. 238-2 at 3. Numi refused to do so, id. at 4, and CNB withdrew from its agreement 

with Numi. See, Rule 30(b)(6) Deposition of CNB through Dennis Gerhard at 72. Youtz 

Decl. Ex. B.

As they have done in previous motions, Defendants rely on Citibank S. Dakota N.A. 

v. Santoro, 210 Or. App. 344, 349, 150 P.3d 429 (2006), where a bank’s customer requested 

a credit card and ran up a bill that he refused to pay. That court held he had to pay his 

bill, rejecting his argument that he was not bound to a cardholder agreement he did not 

sign: “conduct in using [a] card constitute[s] mutual assent to the terms of the credit card 

agreement.” Here, however, Class members did not request anything from Defendants –

neither credit to make purchases nor release cards for the return of their own money –

and this Court appropriately held the Santoro court’s conclusion was inapplicable to 

Defendants’ release cards because “Oregon has never found an agreement where the card 

holder did not apply for the card.” Brown, 2016 U.S. Dist. LEXIS 23026 at *7. Consistent 

with this Court’s conclusion, the statutes governing these debit cards also require they be 

requested before issued and then only after potential users could review and accept or 

reject the terms offered by the issuer. See 15 U.S.C. § 1693i; Brown v. Stored Value Cards, 

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Inc., 953 F.3d 567, 574 (9th Cir. 2020). Class members’ “use” of unrequested release cards 

was not mutual assent to the cardholder agreement.

3. Mutual Assent Is Not Shown By Not Responding To An Opt-Out 

Provision.

Because Defendants fail to show using the card created a contract, they argue that 

it is what Class members did not do that created an enforceable agreement.

The Cardholder Agreement arbitration provision allows card recipients to opt out 

of that requirement by mailing written notice received by Defendants within 30 days. 

ECF No. 149-6 at 3.6 Defendants claim that the existence of a binding, mutually agreed-to 

contract is verified because they have no record that Class members submitted opt-out 

requests and “failure to exercise their opt-out options confirms their assent to the 

arbitration agreement.” Motion at 7. 

First, Defendants’ opt-out provision is a term in a contract that was not accepted. 

“Applying [this] clause to resolve the contract formation issue would presume the 

applicability of a provision before its adoption by the parties has been established.” 

Schnabel v. Trilegiant Corp., 697 F.3d 110, 119 (2d Cir. 2012). There is no reason to opt out 

of an arbitration provision in a contract that was never agreed to in the first place.7

6 The provision directs the cardholder to mail the opt-out notice to the address “shown 

in Contact Information.” There is no such heading. There are two sets of addresses at the 

end of the cardholder agreement, one in Oklahoma, the other in California, but it is 

unclear where the letter should be mailed. 

7 Further, the opt-out right applies only to the arbitration provision, not to the entire 

contract. See, ECF No. 149-6 at 3, ¶ 33 (“will not have any other effect on this Agreement”). 

Thus, it does not address whether mutual assent was present to make the cardholder 

agreement binding on Class members.

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Second, to the extent that the opt-out provision constitutes some form of offer, 

Class members are entitled to reject unsolicited offers by doing nothing. Assent may not 

be assumed from silence or nonresponse.

“As a general rule, silence does not indicate acceptance of an offer. Malan v. Tipton, 

349 Or. 638, 652-53, 247 P.3d 1223, 1231 (2011), citing Suitter v. Thompson et ux., 225 Or.

614, 623, 358 P.2d 267 (1960) (silence functions as acceptance only in limited 

circumstances where "a duty arises requiring a party to speak"). And “mere receipt of 

an unsolicited offer does not impair the offeree's freedom of action or inaction or impose 

on him any duty to speak.” UMG Recordings, Inc. v. Augusto, 628 F.3d 1175, 1182, n.6 (9th 

Cir. 2011). See also, Gas Pipe Line Co., LLC v. Permanent Easement for 2.59 Acres, No. 4:17-

CV-00289, 2019 U.S. Dist. LEXIS 209252, at *3-4 (M.D. Pa. Oct. 8, 2019) (vacating 

arbitration award because there was no agreement to arbitrate, holding a party’s failure 

to respond to a purported contract with an arbitration clause did not create a contract 

because “[m]erely sending an unsolicited offer does not impose upon the party receiving 

it any duty to speak or deprive the party of its privilege of remaining silent without 

accepting”). Placing an opt-out option in the cardholder agreement does not transform 

an involuntary contract into one with mutual assent. See Knutson v. Sirius XM Radio Inc.,

771 F.3d 559, 566 (9th Cir. 2014).

In Knutson, a plaintiff purchased a truck, which came with a 90-day trial 

subscription to Sirius XM satellite radio. After the trial subscription began, the plaintiff 

received a Sirius XM customer agreement, which included an arbitration provision.

Similar to Defendants’ arbitration provision, the document said the customer would be 

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obligated unless Sirius XM received notice of cancellation. The purchaser did not cancel 

the trial subscription. He later sued Sirius XM with claims regarding unsolicited 

marketing calls. Sirius XM attempted to force those claims into arbitration, claiming that 

the plaintiff agreed to arbitration by not canceling the subscription. The trial court 

granted the motion.

The Ninth Circuit reversed, holding that there was no valid arbitration agreement 

between the plaintiff and Sirius. The court rejected Sirius’s argument that the plaintiff 

affirmed his “acceptance” of the agreement by not canceling and continuing to use the 

service. The court held there was no mutual assent because the plaintiff did not request 

the service and was under no obligation to read the unsolicited materials sent to him by 

Sirius. Id.

And that is why the six cases8 cited by Defendants do not support their assertion 

that unless Class members submit a written opt-out notice they unequivocally agree to 

the terms of the cardholder agreement. In each of those cases, the customer requested and 

obtained a credit card to borrow money for purchases that were governed by terms of the 

bank’s cardholder agreement. There was no dispute that the customers agreed to the

terms in the cardholder agreement. 

8 Deloe v. Dep't Stores Nat'l Bank, No. 3:17-cv-00022-SB, 2018 U.S. Dist. LEXIS 239247 

(D. Or. Mar. 23, 2018); Hilburn v. Encore Receivable Mgmt., No. 06-6096-HO, 2007 U.S. Dist. 

LEXIS 103273 (D. Or. July 11, 2007); Ranginwala v. Citibank, N.A., No. 18-cv-14896, 2020 

U.S. Dist. LEXIS 217307 (D.N.J. Nov. 19, 2020); Ackerberg v. Citicorp USA, Inc., 898 F. Supp. 

2d 1172 (N.D. Cal. 2012); Daugherty v. Experian Info. Sols., Inc., 847 F. Supp. 2d 1189 (N.D. 

Cal. 2012); and Lowman v. Citibank (S.D.), N.A., No. CV 05-8097-RGK (FMOx), 2006 U.S. 

Dist. LEXIS 96975 (C.D. Cal. Mar. 24, 2006).

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The dispute that arose in five of those cases was whether the original agreement 

could be changed to include an arbitration provision and other modifications. In at least 

three of those cases, that issue was answered by state statutes that allowed credit card 

agreements to be amended if the banks followed certain procedures, including allowing 

the customers to close their accounts before the new provisions went into effect.9 In all

five cases the customers (1) requested the credit cards to borrow money from a bank for 

purchases, (2) agreed with the terms offered by the bank with the card, and (3) could close

their account and take their business elsewhere if they did not want to agree to the 

proposed modifications to those agreements.10

By contrast, Class members (1) did not seek anything from Defendants, including 

a release card to return their own money, (2) never had the right to choose whether to 

accept or reject the card and the terms in the cardholder agreement, and (3) could not go 

elsewhere to obtain their money without being subject to Defendants’ fees and 

restrictions. Defendants’ credit card cases, which all have a starting point of customers 

9 Lowman at *8-9 (“The procedures implemented by Citibank of giving notice and 

amending the original card agreement are expressly authorized by South Dakota law. See

S.D. Codified Laws, § 54-11-10. In fact, the Attorney General of South Dakota has recently 

affirmed that South Dakota credit card issuers may adopt arbitration clauses using the 

mechanisms adopted by Citibank.“). See also, Daugherty at 1195-96 and Ranginwala at *10-

11, both applying South Dakota statutory law.

10 In the sixth case, Ranginwala, 2020 U.S. Dist. LEXIS 217307 at *7, the plaintiff 

admitted “Under the terms of the credit card agreement between Defendant and [him], 

all claims arising out of their relationship are subject to arbitration” but argued that the 

arbitration portion became ineffective when the contract was terminated. There was no 

issue about opting in or out of the agreement. This setting has no relevance to this motion.

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requesting credit and services to make purchases, are inapplicable in determining 

whether mutual assent is evidenced here. And the applicable statutes for Defendants’ 

debit cards is the EFTA, which requires that the cards be requested before they are issued.

C. There Is No Contract Because There Is No Consideration.

“Consideration is a necessary element of a valid contract. In order for a contract to 

be binding, each party must give some legal consideration to the other by conferring some 

benefit upon the promisor or suffering a legal detriment at the promisor's request.” 

Emmert v. Clackamas Cty., No. 3:13-cv-01317-YY, 2016 U.S. Dist. LEXIS 182262, at *30 (D. 

Or. Oct. 17, 2016) (emphasis added). Defendants claim they provide “benefits” to Class 

members that would not be available if their money was returned in cash or through a 

check, such as the opportunity to find and use an ATM machine to retrieve their money. 

They also argue that Defendant Numi accepted “the detriment risk of fraud losses arising 

from the use of its cards,” although they do not explain how Numi has that obligation 

and whether it ever reimbursed a Class member for a fraud loss.11 Defendants contend 

these unrequested services, and the alleged detriment, provide the consideration to 

require Class members to pay hefty maintenance fees and other costs associated with the 

card and commit to arbitration.

11 The only mention of fraud in the cardholder agreement states that the cardholder 

would be charged $9.95 “if the Card is closed for fraud.” ECF No. 149-6 at 2, ¶ 4, n.7.

Defendants’ risks are not comparable to issuers of credit cards who run the risk that their 

customers will not repay their loans. Here, Defendants distribute funds and take their 

fees using the Class members’ own money.

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But there is no consideration that creates a contract unless both parties recognize 

the benefits and detriments being exchanged to form the agreement. Consideration is not 

found for unrequested services that were not bargained for:

Nothing is consideration for a contract that is not regarded as 

such by both parties. The mere presence of some incident to a 

contract which might under certain circumstances be upheld as 

a consideration for a promise does not necessarily make it the 

consideration for the promise in that contract. To give it that 

effect, it must have been offered by one party and accepted by the 

other as an element of the contract. Accordingly, the fortuitous 

presence in a transaction of some possibility of detriment, 

latent but unthought of, is not enough to furnish a 

consideration for a contract. The promisor and promisee must have 

dealt with it as the inducement to the promise. In other words, on 

the one hand, the consideration must be the inducement to the 

making of the promise, and on the other, it must be induced by 

the promisor's express or implied request.

Laflamme v. Hoffman, 148 Me. 444, 451, 95 A.2d 802, 805 (1953) (emphasis in original). “The

promise and the consideration must purport to be the motive each for the other, in whole 

or at least in part. It is not enough that the promise induces the detriment, or that the 

detriment induces the promise, if the other half is wanting." Schafer v. Fraser, 206 Or. 446, 

467, 290 P.2d 190, 200 (1955), quoting Justice Holmes in Wisconsin & Michigan R. v. Powers, 

191 U.S. 379, 24 S. Ct. 107, 48 L. Ed. 229 (1903); accord, Endeavour Structured Equity & 

Mezzanine Fund I, L.P. v. Engel (In re C & K Mkt., Inc.), Nos. 13-64561-fra11, 14-06119-fra, 

2015 Bankr. LEXIS 1347, at *11-13 (Bankr. D. Or. Apr. 16, 2015).

At the time Defendants claim the agreement was created, Class members never 

requested the services offered, had no way of knowing that Defendant Numi would incur 

any kind of detriment from the agreement, and did not know what the maintenance fees

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were or why they should be required to pay them. One thing they did know when they 

were handed their card was that it was the only allowed means of retrieving their money.

By loading those funds on the cards, however, Defendants did not provide consideration 

to form a contract.

Money confiscated from Class members was required to be safeguarded and 

returned to them when they were released. Defendants did not provide consideration by 

performing that legal duty to return funds back to their owners. “[N]either the 

performance of a pre-existing duty, nor the promise to perform a pre-existing duty, 

constitutes consideration.” Multicare Med. Ctr. v. Dep’t of Soc. & Health Servs., 114 Wn.2d 

572, 584, 790 P.2d 124, n.20 (1990). The “pre-existing duty” rule “holds that doing ‘what 

one is already bound to do is not a consideration sufficient to support a contract.’ The 

rationale of this rule is that, where a party already obligated to perform is not giving up 

anything for the benefit it is gaining, the law will not hold the other party to its promise 

to give up something in return for that performance.” Sw. Or. Pub. Def. Servs., Inc. v. Dep’t 

of Revenue, 312 Or. 82, 93, 817 P.2d 1292, 1298 (1991). 

“This agreement thus obligated the appellants to do nothing more than what they 

were already legally obligated to do. An agreement on the part of one to do what he is 

already legally bound to do is not a sufficient consideration for the promise of another.”

Stephen Haskell Law Offices, PLLC v. Westport Ins. Corp., 2011 U.S. Dist. LEXIS 37360, at *11-

12 (E.D. Wash. Apr. 5, 2011), quoting Owings v. Georgia Railroad Bank, 188 Ga. App. 265, 

372 S.E.2d 825, 826 (Ga. App. 1988). See Hoffman v. Geico Ins. Co., 347 F. App'x 295, 296 (9th 

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Cir. 2009) (a release obtained by GEICO from plaintiff for $100,000 lacked consideration 

since GEICO was already obligated to make that payment).

Defendants do not provide consideration by returning money owned by and owed 

to Class members; they did not provide the consideration necessary to bind Class 

members to the terms of the cardholder “agreement.”

D. A Trial Is Not Required To Deny Defendants’ Motion.

Lastly, Defendants suggest that a trial may be needed to resolve their motion to 

compel arbitration. They argue that if this trial occurs it would require “a detailed inquiry 

into the facts on a person-by-person basis,” which would require decertification of the 

class. They are wrong. Trials are not needed to resolve issues that can be decided on 

undisputed facts, including disputes of whether an agreement to arbitrate exists:

Just as in traditional litigation, the district court must employ 

the summary judgment standard as a gatekeeper, so a trial 

occurs only if there are “genuine issues of material fact.” Id.; see 

also Hub Int'l, 944 F.3d at 234. In applying that standard, the 

burden is on the defendant to “establish[] the existence of a 

binding contract to arbitrate the dispute.” Minnieland Private 

Day Sch., Inc. v. Applied Underwriters Captive Risk Assurance Co., 

Inc., 867 F.3d 449, 456 (4th Cir. 2017). Here the district court in 

effect granted summary judgment to the plaintiffs by finding 

that, as a matter of law, the parties did not form an agreement. 

We have long held that appropriate. See, e.g., Stedor Enters., Ltd. 

v. Armtex, Inc., 947 F.2d 727, 732-33 (4th Cir. 1991).

Rowland v. Sandy Morris Fin. & Estate Planning Servs., LLC, 993 F.3d 253, 258 (4th Cir. 2021). 

A factual dispute can arise in litigation over arbitrability as in Card v. Wells Fargo 

Bank, N.A., No. 3:19-cv-1515-SI, 2020 U.S. Dist. LEXIS 45117, at *19 (D. Or. Mar. 16, 2020), 

where a credit card customer’s sole argument against a motion to compel arbitration was 

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that he had never received a copy of the cardholder agreement despite testimony from 

his bank that it was mailed to him – a classic credibility dispute. Here, however, the issue 

is whether Defendants’ cardholder agreement is enforceable even if received by a Class 

member. The answer is “No” because undisputed facts show there could be no mutual 

assent to that agreement. 

In Reichert, under facts nearly identical to the scenario in this case, the court held 

no trial was needed because it was undisputed – as it is here – that release card recipients 

had no choice but to take the card and “accept” the cardholder agreement if they wanted

their money returned to them. Reichert v. Keefe Commissary Network LLC, No. C17-5848 

BHS, 2021 U.S. Dist. LEXIS 103810, at *17-18 (W.D. Wash. June 2, 2021).

Defendants do not identify any disputed, material facts that need to be resolved 

by trial to deny their motion to compel arbitration. Their motion is based on a legal 

argument that physically accepting a cardholder agreement with an unrequested release 

card to return money already owed to Class members creates a binding contract despite 

the undisputed fact that Class members have no choice but to use that card to retrieve

that money or lose their funds to Defendants’ maintenance fees. No trial is necessary. 

E. Unconscionability Is Not An Issue.

Defendants argue that the cardholder agreement is not unconscionable under 

Oklahoma law, which they claim is applicable under Paragraph 28 of that document 

(“Governing Law/Jurisdiction”). This same provision requires “any actions or 

proceedings with respect to this Agreement or any services provided under this 

Agreement shall be brought only before a federal or state court of competent jurisdiction 

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in Oklahoma.” Putting aside that inconsistency with Defendants’ current demand for 

arbitration, Defendants again put the cart before the horse: “the choice-of-law provision 

has force only if the parties validly formed a contract. If the parties did not enter into a 

contract, then there is no choice-of-law clause to apply.” Edminster, Hinshaw, Russ & 

Assocs. v. Downe Twp., 953 F.3d 348, 351 (5th Cir. 2020) (citations omitted).

While any proposition that requires no choice but to accept all of its terms, 

including arbitration, to return your own money is likely unconscionable, that issue does 

not need to be decided to deny the motion to compel.

V. Defendants Waived Any Right They Had To Compel 

the Class To Arbitrate their Claims.

For the same reasons Defendants waived their right to arbitrate the claims of Ms.

Brown, see ECF Nos. 140 and 144, Defendants have waived their right to arbitrate the 

claims of absent class members. Defendants (1) had knowledge of their existing right to 

compel arbitration; (2) acted inconsistently with that existing right; and (3) caused 

prejudice to absent class members resulting from such inconsistent acts. See Martin v. 

Yasuda, 829 F.3d 1118, 1124 (9th Cir. 2016) (listing elements of arbitration waiver). 

Since the filing of Plaintiffs’ original complaint over six years ago, ECF No. 1, 

Defendants have availed themselves of the judicial forum extensively: seeking a decision 

on the merits of Plaintiffs’ claims through pre-trial motions practice and engaging in 

discovery. See ECF Nos. 58 (Defendants’ joint motion to dismiss), 74 (Defendants’ 

renewed joint motion to dismiss), 86 (Opinion and Order on motion to dismiss, granting 

dismissal of EFTA and section 1983 claims), 113 (Defendants’ joint motion to dismiss Fifth 

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Amendment claim), 148 (Defendants’ motion for summary judgment), 191 (Order 

Dismissing Case), 228 (Defendants’ motion for summary judgment and motion to strike 

class allegations); Newirth v. Aegis Senior Comtys. Martin, LLC, 931 F.3d 935, 941 (9th Cir. 

2019) (“Seeking a decision on the merits of a key issue in a case indicates an intentional 

and strategic decision to take advantage of the judicial forum.”). This activity caused 

absent class members to experience delay and to “expend more time, money, and effort 

than had they proceeded directly to arbitration,” while providing Defendants with the 

benefits of the federal court system – such as the “potential for precedential decisions.” 

Martin, 829 F.3d at 1127. That amounts to prejudice and, therefore, waiver. See id. at 1126-

27.

This Court need not turn a blind eye to such prejudicial litigation activity simply 

because it occurred prior to class certification. See In re Cox Enters., Inc. Set-top Cable 

Television Box Antitrust Litig., 790 F.3d 1112, 1119 (10th Cir. 2015) (rejecting the notion that 

waiver as to absent class members cannot take place until after a class has been certified); 

In re Citigroup, Inc., 376 F.3d 23, 28-29 (1st Cir. 2004) (noting that defendant’s precertification litigation activity supported a finding of waiver); Scott v. Family Dollar Stores, 

Inc., 2017 WL 412654, at *1 (W.D.N.C. Jan. 4, 2017) (collecting cases). 

That would be to “ignore[] the realities of class-action litigation.” Kingsbury v. U.S. 

Greenfiber, LLC, 2012 WL 2775022, at *6 (C.D. Cal. June 29, 2012). From the outset of this 

litigation, Brown has acted as putative class representative and her lawyers as Class

counsel, ECF No. 1, and in that capacity sought to “vindicate” not only Brown’s interests 

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but those of the absent class members.12 Kingsbury, 2012 WL 2775022, at *6. Meanwhile, 

Defendants took “advantage of being in federal court,” Martin, 829 F.3d at 1125, by 

asserting defenses to class-wide theories of liability – defenses that would have had issue 

preclusive and precedential effect on the entire putative class. Such “gamesmanship” 

cannot be condoned by the courts. Edwards v. First American Corp., 289 F.R.D. 296, 307-08 

(C.D. Cal. 2012); see also, Milbourne v. JRK Residential Am., LLC, 2016 WL 1071564, at *9 

(E.D. Va. Mar. 15, 2016) (finding waiver as to absent class members appropriate to 

sanction defendants’ “‘heads I win, tails you lose’ strategy”).

Rather than seal off pre-certification activity from the waiver analysis, courts are 

instructed to take a “holistic approach” to the waiver inquiry, which is focused on asking 

whether “a party’s actions indicate a conscious decision to seek judicial judgment on the 

merits of the arbitrable claims.” Newirth, 931 F.3d at 941 (internal quotation marks and 

alterations omitted). Here, the answer as to all Class members is a resounding yes. 

Defendants have thus waived their right to arbitrate class members’ claims.

12 The same reasoning has been applied to the context of representative collective 

actions brought under the Fair Labor Standards Act. A Sixth Circuit panel, for example, 

stated that since “all plaintiffs are represented by the same counsel and assert claims ...

pursuant to the same uniform policies ... the effects [of the waiver] [are] effectively the 

same for all plaintiffs, irrespective of when they opted in.“ Gunn v. NPC Int’l, Inc., 625 F. 

App’x 261, 267 (6th Cir. 2015); see also, Prowant v. Fed. Nat’l Mortg. Ass’n, 255 F. Supp. 3d 

1291, 1298 (N.D. Ga. 2017) (finding that all opt-in plaintiffs were “similarly situated [to 

named plaintiffs] with respect to the issues posed by [the defendant’s] waiver,” 

regardless when they joined the litigation); Oliveira v. New Prime, Inc., 424 F. Supp. 3d 206, 

212 (D. Mass. 2019) (similar).

Case 3:15-cv-01370-MO Document 257 Filed 08/27/21 Page 31 of 34
THE OREGON CLASS’S MEMORANDUM IN OPPOSITION TO

DEFENDANTS’ MOTION TO COMPEL ARBITRATION - Page 25

VI. Conclusion

For the reasons provided above, the Court should deny Defendants’ motion to 

compel arbitration. 

DATED: August 27, 2021.

MEGAN E. GLOR, ATTORNEYS AT LAW, P.C.

Megan E. Glor, OSB No. 930178

megan@meganglor.com

707 NE Knott Street, Suite 101

Portland, OR 97212

Tel. (503) 223-7400

Fax (503) 751-2071

SIRIANNI YOUTZ 

SPOONEMORE HAMBURGER PLLC

 s/ Chris R. Youtz

Chris R. Youtz, Pro Hac Vice

chris@sylaw.com

Richard E. Spoonemore, Pro Hac Vice

rick@sylaw.com

3101 Western Avenue, Suite 350

Seattle, WA 98121

Tel. (206) 223-0303

Fax (206) 223-0246

PUBLIC JUSTICE

Karla Gilbride, Pro Hac Vice

kgilbride@publicjustice.net

1620 L Street NW, Suite 630

Washington, DC 20036

Tel. (202) 861-5241

Fax (202) 232-7203

Case 3:15-cv-01370-MO Document 257 Filed 08/27/21 Page 32 of 34
THE OREGON CLASS’S MEMORANDUM IN OPPOSITION TO

DEFENDANTS’ MOTION TO COMPEL ARBITRATION - Page 26

HUMAN RIGHTS DEFENSE CENTER

Daniel L. Marshall, Pro Hac Vice

dmarshall@humanrightsdefensecenter.org

P.O. Box 1511

Lake Worth, FL 33460

Tel. (561) 360-2523

Fax (561) 828-8166

Attorneys for Plaintiff / Oregon Class

Case 3:15-cv-01370-MO Document 257 Filed 08/27/21 Page 33 of 34
THE OREGON CLASS’S MEMORANDUM IN OPPOSITION TO

DEFENDANTS’ MOTION TO COMPEL ARBITRATION - Page 27

CERTIFICATE OF COMPLIANCE

This brief complies with the applicable word-count limitation under LR 7-2(b), 26-

3(b), 54-1(c), or 54-3(e) because it contains 7,156 words, including headings, footnotes, 

and quotations, but excluding the caption, table of contents, table of cases and authorities, 

signature block, exhibits, and any certificates of counsel.

DATED: August 27, 2021.

 s/ Chris R. Youtz

Chris R. Youtz, Pro Hac Vice

chris@sylaw.com

Case 3:15-cv-01370-MO Document 257 Filed 08/27/21 Page 34 of 34