Case: 15-10364    Date Filed: 06/18/2015   Page: 1 of 4


                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 15-10364
                           Non-Argument Calendar
                         ________________________

                      D.C. Docket No. 1:14-cv-01187-AT


ROBERT REAGAN, on behalf of himself and
all others similarly situated,
                                                             Plaintiff - Appellee,

                                    versus

STORED VALUE CARDS, INC.,
CENTRAL NATIONAL BANK AND
TRUST COMPANY, ENID, OKLAHOMA,
                                                         Defendants - Appellants.

                         ________________________

                  Appeal from the United States District Court
                     for the Northern District of Georgia
                        ________________________

                                (June 18, 2015)

Before MARCUS, WILLIAM PRYOR, and COX, Circuit Judges.

PER CURIAM:

      Stored Value Cards, Inc. (“Stored Value Cards”) and Central National Bank

and Trust Company, Enid, Oklahoma (“Central National Bank”), appeal the district
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court’s order (Doc. 24) denying their motion to compel arbitration pursuant to an

arbitration clause in a Cardholder Agreement (“Agreement”). We affirm.

                         I. Facts and Proceedings Below

       The Plaintiff, Robert Reagan, was jailed overnight in the Rockdale, Georgia,

County Jail on a charge that later was dropped. When booked, he turned over

$764.00 in cash to his jailers. When released the next day, he was given in lieu of

his cash a pre-paid debit card worth $764.00 issued by Central National Bank

through Stored Value Cards. He had no option to get cash or a check instead.

Simultaneously, he received from the jailers a packet of documents that included

the Agreement, which was printed in illegible five-point type. The jailers did not

tell Reagan that the Agreement was in the packet. And, Reagan did not know that

the Agreement was in the packet.         The Agreement, which Reagan had no

opportunity to read and did not sign, included an arbitration clause. After Reagan

brought in state court this putative class action challenging fees attendant to using

the card, Stored Value Cards and Central National Bank removed the case to

federal district court and filed a motion to compel arbitration. The district court

denied the motion because there were factual disputes as to whether Reagan agreed

to arbitrate.




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                                  II. Standard of Review

       We review de novo a district court’s order denying a motion to compel

arbitration under the Federal Arbitration Act. Becker v. Davis, 

, 1297

(11th Cir. 2007).

                                       III. Discussion

       The parties agree that arbitration is contractual, and that arbitration may not

be compelled if the parties did not mutually assent to the Agreement containing the

arbitration clause. 1 Mutual assent requires a meeting of the minds on the essential

terms of the contract. The parties agree that whether they formed the Agreement is

for district courts to decide. See Granite Rock Co. v. Int’l Bhd. of Teamsters, ___

U.S. ___, 

, 2855-58 (2010); Solymar Invs., Ltd. v. Banco

Santander, S.A., 

, 989-90 (11th Cir. 2012).

       Stored Value Card and Central National Bank contend that Reagan’s use of

the card constituted assent to the Agreement and, in turn, to the arbitration clause.

Reagan contends that the “usage rule” is inapposite, and that there is an issue of

fact to be resolved by the district court as to whether Reagan assented to the

Agreement.




       1
          The parties also agree that Georgia law applies as to whether mutual assent existed in
this case. John K. Larkins, Jr., Ga. Contracts Law and Litigation § 3.2 (2d ed.); Jones v. Frickey,

, 31 (Ga. Ct. App. 2005).
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       The district court concluded that fact issues exist to be resolved by the court

or a jury as to whether Reagan assented to the Agreement and, hence, assented to

the arbitration clause. (Doc. 24, 7-10). The district court noted that issues of fact

exist as to whether Reagan’s use of the card constituted assent to the Agreement’s

terms because: (1) he did not apply for the card; (2) he was not offered a line of

credit that he could choose to use or not use; (3) the Agreement did not come in the

same envelope as a card for which Reagan had applied; and (4) Reagan did not use

it for a long period of time. (Id., 10-11).

       We have reviewed the briefs and the appellate record excerpts cited by the

parties. We need not add anything to the district court’s opinion. The district court

correctly held that issues of fact exist to be resolved by the court or a jury as to

whether Reagan agreed to arbitrate with Stored Value Cards and Central National

Bank. 2

                                     IV. Conclusion

       For the reasons stated in this and the district court’s opinion, we affirm the

order of the district court denying the motion to compel arbitration filed by Stored

Value Cards and Central National Bank.

       AFFIRMED.


       2
        We agree with Stored Value Cards and Central National Bank that unconscionability is
for the arbitrator to decide, but disagree with their contention that the district “conflated”
formation issues with unconscionability.
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