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In re Henson

United States Court of Appeals, Ninth Circuit

September 5, 2017

In re Anthony Henson and William Cintron, Anthony Henson; William Cintron, Petitioners,
United States District Court for the Northern District of California, Oakland, Respondent, Turn, Inc., Real Party in Interest.

          Argued and Submitted May 17, 2017 San Francisco, California

         Petition for Writ of Mandamus D.C. No. 4:15-cv-01497-JSW

          Nimish R. Desai (argued) and Michael W. Sobol, Lieff Cabraser Heimann & Bernstein LLP, San Francisco, California; Nicholas Diamand, Lieff Cabraser Heimann & Bernstein LLP, New York, New York; Hank Bates, Carney Bates & Pulliam PLLC, Little Rock, Arkansas; Bradley S. Clanton, Clanton Legal Group PLLC, Jackson, Mississippi; for Petitioners.

          Michael H. Rubin (argued), Anthony J. Weibell, and Lauren Gallo White, Wilson Sonsini Goodrich & Rosati, San Francisco, California, for Real Party in Interest.

          Scott H. Angstreich and Amelia I.P. Frenkel, Kellogg Huber Hansen Todd & Evans PLLC, Washington, D.C., for Amicus Curiae Cellco Partnership DBA Verizon Wireless.

          Before: William A. Fletcher and Richard C. Tallman, Circuit Judges, and Roslyn O. Silver, [*] District Judge.



         The panel granted a petition for a writ of mandamus, and vacated the district court's order granting Turn, Inc.'s motion to stay the action and compel arbitration, arising from a putative class action brought by Verizon cellular and data subscribers against Turn, Inc., a middle-man for Internet-based advertisements, challenging Turn, Inc.'s alleged use of "zombie" cookies.

         The panel weighed the factors in Bauman v. U.S. Dist. Court, 557 F.2d 650, 654-55 (9th Cir. 1977), and held that the majority of the Bauman factors weighed heavily in favor of granting the writ of mandamus. Specifically, the panel held that because "contemporaneous ordinary appeal" was unavailable, the first Bauman factor supported issuance of the writ. The panel held that the second Bauman factor also weighed heavily in favor of granting mandamus relief because the subscribers would be prejudiced in a way not correctable on appeal. The panel held that the third Bauman factor strongly favored granting the writ because the district court committed clear error by applying New York's equitable estoppel doctrine, rather than California's, and by failing to apply California law correctly. The panel held that the fourth and fifth Bauman factors - oft-repeated error and issue of first impression - weighed against granting mandamus relief. The panel concluded that because the first three Bauman factors strongly favored mandamus relief, the balance of factors favored issuing the writ.


          PER CURIAM.

         We consider whether the defendant, a "middle man" for Internet-based advertisements, may invoke an arbitration provision contained in a contract between the plaintiffs and their wireless service provider.

         I. BACKGROUND

         Plaintiffs Anthony Henson and William Cintron (collectively, "Henson") are Verizon[1] cellular and data subscribers. Henson and Verizon's contractual relationship is governed by the "My Verizon Wireless Customer Agreement" ("Customer Agreement"), which includes an agreement to arbitrate disputes between them. Defendant Turn, Inc. ("Turn") is a "middle man" for Internet-based advertisements that separately contracts with Verizon to deliver advertisements to Verizon subscribers based on usage data collected from users' mobile devices. The "Turn Audience Platform Agreement" ("TAP Agreement") governs Verizon and Turn's contractual relationship, under which Verizon granted a license to Turn to use its service for targeted advertising in exchange for a percentage of the revenue that Turn received from selling targeted advertising space to its client advertisers.

         As a Verizon subscriber, each of Henson's wireless transmissions contained a Verizon Unique Identifier Header ("UIDH"). Turn attached tracking cookies[2] to Verizon subscribers' UIDHs to collect and send their web-browsing and usage data to Turn's servers. Subscribers were allegedly unable to detect, delete, or block these "zombie" cookies attached to their UIDHs.[3] Henson filed a putative class action in the United States District Court for the Northern District of California on behalf of all Verizon subscribers residing in New York against Turn for its alleged use of these "zombie" cookies, claiming that Turn (1) engaged in deceptive business practices in violation of New York General Business Law § 349, and (2) committed trespass to chattels by intentionally interfering with the use and enjoyment of Verizon subscribers' mobile devices.

         Henson alleged that Turn exploited users' UIDHs to install its "zombie" cookies, recreated those cookies after users deleted them, collected data about Verizon users without their knowledge, used that data to create profiles that it marked with its own identifier ("Turn ID"), stored those Turn IDs on users' mobile web browsers, and auctioned off users' collected data so that advertisers could place targeted advertisements on their mobile phones. Because Turn works with Google, Facebook, and hundreds of other well- recognized brands, Henson argued Turn's practices had a harmful and wide impact.

         Turn moved to dismiss Henson's claims and sought to compel arbitration by invoking the arbitration provision in the Customer Agreement between Henson and Verizon. The Customer Agreement requires Henson and Verizon to arbitrate any disputes arising out of their contract. However, Turn is not a signatory to the Customer Agreement and does not otherwise have an arbitration agreement with Henson. The separate TAP Agreement, between Turn and Verizon, provides that the parties "are independent of each other"; that "nothing in th[e] Agreement creates any partnership, joint venture, . . . or other similar relationship"; and that "neither party shall have the authority to bind the other in any way."[4] Nonetheless, Turn asked the district court to compel arbitration under the doctrine of equitable estoppel because it provided a service to Henson that was closely connected to Henson's Verizon wireless service.

         Without conducting a choice-of-law analysis, the district court granted Turn's motion to compel arbitration under New York's equitable estoppel doctrine and stayed the action. Henson timely filed this writ of ...

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