In affirming a lower court’s ruling that a party seeking arbitration failed to prove the existence of a valid arbitration agreement, the Washington Court of Appeals refused to apply the mailbox rule because even though the party submitted evidence on the mailing procedures used by its third-party vendor, the party submitted no evidence on the procedures used to supply mailing lists to the third-party vendor.

In Olson v. The Bon, Inc., 183 P.3d 359 (Wash. Ct. App. 2008), Olson, Peterson, and Colyer (collectively, Plaintiffs) – each a credit card customer at The Bon Marche department store – were offered enrollment in a credit protection program run by Trilegiant Corporation (Trilegiant). The offer included a free trial membership that could be accepted by endorsing and negotiating a "check" for $2.50. The Plaintiffs accepted the trial membership by endorsing and negotiating the $2.50 check.

Whenever a person enrolls in the credit protection program, Trilegiant relies on a third-party vendor named Jetson to send the member a fulfillment kit. The fulfillment kit specifies the terms and conditions of the program. One of the terms is an arbitration agreement that contains a class waiver barring class-wide proceedings.

After the Plaintiffs discovered that their free trial membership had been automatically extended for an annual fee of $69.99, they filed a class action lawsuit alleging fraudulent inducement. In response, Trilegiant filed a motion to compel arbitration. Plaintiffs opposed the motion on two grounds: (1) that they never received the fulfillment kit; and (2) that the class waiver rendered the arbitration agreement unconscionable and therefore unenforceable. The trial court denied the motion based primarily on its finding that Trilegiant had not proven the mailing of the fulfillment kits.

On appeal, Trilegiant argued that the trial court erred in ruling that Trilegiant failed to prove the existence of the arbitration agreement. Specifically, Trilegiant argued that the mailbox rule created a presumption of receipt in this case because Trilegiant submitted evidence regarding the practice and procedures used by Jetson to mail the fulfillment kits. Despite the evidence of Jetson’s mailing practices, the Court upheld the lower court’s ruling because Trilegiant had not submitted any evidence on the practices or procedures used to supply Jetson with a mailing list.

The Court also affirmed the lower court ruling on unconscionability grounds. Specifically, the Court held that the class waiver rendered the arbitration agreement unconscionable under Washington law because the waiver would supposedly exculpate Trilegiant from liability for any wrongdoing.

As this case illustrates, a party relying on the mailbox rule to prove the existence of an arbitration agreement should submit evidence of every crucial step in the mailing process.