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.
and Submitted May 17, 2017 San Francisco, California
for Writ of Mandamus D.C. No. 4:15-cv-01497-JSW
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.
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.
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.
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.
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.
Anthony Henson and William Cintron (collectively,
"Henson") are Verizon 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.
Verizon subscriber, each of Henson's wireless
transmissions contained a Verizon Unique Identifier Header
("UIDH"). Turn attached tracking
cookies 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. 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.
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.
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." 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.
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 ...