Anthony Henson v. Usdc-Caoak ( 2017 )


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  •                  FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    IN RE ANTHONY HENSON and                  No. 16-71818
    WILLIAM CINTRON,
    D.C. No.
    4:15-cv-01497-
    ANTHONY HENSON; WILLIAM                        JSW
    CINTRON,
    Petitioners,
    OPINION
    v.
    UNITED STATES DISTRICT COURT FOR
    THE NORTHERN DISTRICT OF
    CALIFORNIA, OAKLAND,
    Respondent,
    TURN, INC.,
    Real Party in Interest.
    Petition for Writ of Mandamus
    Argued and Submitted May 17, 2017
    San Francisco, California
    Filed September 5, 2017
    2                          IN RE HENSON
    Before: William A. Fletcher and Richard C. Tallman,
    Circuit Judges, and Roslyn O. Silver, * District Judge.
    Per Curiam Opinion
    SUMMARY **
    Mandamus
    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
    *
    The Honorable Roslyn O. Silver, United States District Judge for
    the District of Arizona, sitting by designation.
    **
    This summary constitutes no part of the opinion of the court. It
    has been prepared by court staff for the convenience of the reader.
    IN RE HENSON                         3
    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.
    COUNSEL
    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.
    4                         IN RE HENSON
    OPINION
    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
    1
    Cellco Partnership d/b/a Verizon Wireless (“Verizon” or “Verizon
    Wireless”) is not a party in this matter.
    IN RE HENSON                                5
    (“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-
    2
    A “cookie” is software code that transmits a user’s web-browsing
    history and other usage data back to the entity that attached the cookie.
    3
    According to Henson, if a subscriber deleted Turn’s cookie, Turn
    would attach a new cookie the next time the subscriber visited one of
    Turn’s partner websites. Turn could then repopulate the cookie with the
    very data the user intentionally deleted, and it could cross-reference the
    UIDH attached to the user’s transmission with Turn’s own database of
    collected data. This allowed Turn to continue collecting information
    about the user after the user believed the cookie was deleted.
    6                           IN RE HENSON
    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 mandamus to vacate
    the district court’s order compelling arbitration.
    4
    Although the TAP Agreement was filed under seal in the district
    court, we conclude that Turn waived any claim of confidentiality as to
    these portions of the document when it represented on appeal that it acted
    jointly and in partnership with Verizon to provide targeted
    advertisements to Verizon’s subscribers. The TAP Agreement, the
    contents of which are highly probative of the question at hand, makes
    clear that the companies agreed that exactly the opposite was true. See
    Murphy v. DirecTV, Inc., 
    724 F.3d 1218
    , 1233 n.9 (9th Cir. 2013).
    IN RE HENSON                       7
    II. ANALYSIS
    We have jurisdiction to issue writs of mandamus
    pursuant to the All Writs Act. 
    28 U.S.C. § 1651
    . A writ of
    mandamus is a “drastic and extraordinary” remedy. Ex parte
    Fahey, 
    332 U.S. 258
    , 259 (1947). To determine whether a
    writ of mandamus is warranted, we weigh the Bauman
    factors:
    (1) whether the petitioner has other adequate
    means, such as a direct appeal, to attain the
    relief he or she desires; (2) whether the
    petitioner will be damaged or prejudiced in a
    way not correctable on appeal; (3) whether
    the district court’s order is clearly erroneous
    as a matter of law; (4) whether the district
    court’s order makes an “oft-repeated error,”
    or “manifests a persistent disregard of the
    federal rules”; and (5) whether the district
    court’s order raises new and important
    problems, or legal issues of first impression.
    In re Van Dusen, 
    654 F.3d 838
    , 841 (9th Cir. 2011) (quoting
    Bauman v. U.S. Dist. Court, 
    557 F.2d 650
    , 654–55 (9th Cir.
    1977)). Although satisfying the third Bauman factor—clear
    error—is necessary for granting the writ, a petitioner need
    not satisfy all five factors at once. Douglas v. U.S. Dist.
    Court for Cent. Dist. of Cal., 
    495 F.3d 1062
    , 1066 (9th Cir.
    2007) (per curiam). Here, the majority of the Bauman
    factors weigh heavily in favor of granting the writ.
    A. Direct Appeal is Unavailable
    A writ of mandamus “is not available when the same
    review may be obtained through contemporaneous ordinary
    appeal.” Snodgrass v. Provident Life and Accident Ins. Co.,
    8                       IN RE HENSON
    
    147 F.3d 1163
    , 1165 (9th Cir. 1998) (quoting Clorox Co. v.
    U.S. Dist. Court for N. Dist. of Cal., 
    779 F.2d 517
    , 519 (9th
    Cir. 1985)). An order staying proceedings and compelling
    arbitration is not a final decision that is subject to ordinary
    appeal under 
    28 U.S.C. § 1291
    . See 
    9 U.S.C. § 16
    (b);
    Johnson v. Consumerinfo.com, Inc., 
    745 F.3d 1019
    , 1021–
    23 (9th Cir. 2014). Because “contemporaneous ordinary
    appeal” is unavailable, the first Bauman factor supports
    issuance of the writ.
    B. Prejudice Not Correctable on Appeal
    The second Bauman factor also weighs in favor of
    granting mandamus relief. We generally examine the first
    and second factors together because the second is closely
    related to the first. Douglas, 
    495 F.3d at
    1068 n.3. Here, the
    Customer Agreement does not allow Henson to arbitrate his
    dispute in a representative capacity or on behalf of a class.
    If Henson is forced to arbitrate, he “has no other adequate
    means” of ensuring that he can continue as the class
    representative, and this would prejudice him “in a way not
    correctable on appeal.” See Bauman, 
    557 F.2d at 654
    . If
    Henson wins the arbitration, then his individual claims in
    this action would be rendered moot because they would fully
    be satisfied, and Henson would lose his status as class
    representative because he would no longer have a concrete
    stake in the controversy. See Douglas, 
    495 F.3d at
    1068–69.
    It is doubtful that Henson would be able to avoid mootness
    by moving to vacate the arbitration award solely because he
    wanted to continue as the class representative. See 
    id.
     And,
    it is “doubtful that he could appeal the district court’s order
    confirming an award that fully satisfied his individual
    claim[s].” 
    Id. at 1069
    . He thus would “have no opportunity
    to challenge the district court’s order compelling the
    arbitration in the first place.” 
    Id.
    IN RE HENSON                          9
    If Henson loses the arbitration, it is also doubtful that he
    would successfully bring an appeal to this court. If he brings
    suit in the district court to vacate the arbitration award and
    to seek a damage award from the district court, Turn could
    make an offer of settlement that would be very hard to
    refuse. Until the arbitration award is actually vacated by
    order of the district court, Henson could represent only
    himself and would thus have no legal or ethical obligation to
    refuse the offer.
    C. Clear Error
    Although clear error is a highly deferential standard of
    review in the mandamus context, Van Dusen, 
    654 F.3d at 841
    , an “order is clearly erroneous for purposes of a
    mandamus petition if we are left with the definite and firm
    conviction that a mistake has been committed.” United
    States v. Ye, 
    436 F.3d 1117
    , 1123 (9th Cir. 2006) (quotation
    omitted). Here, 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. Because we are left with a definite and firm
    conviction that a mistake has been committed, the third
    Bauman factor strongly favors granting the writ.
    The Federal Arbitration Act (“FAA”) provides that
    arbitration agreements “shall be valid, irrevocable, and
    enforceable.” 
    9 U.S.C. § 2
    . Turn attempts to invoke the
    arbitration agreement between Henson and Verizon to
    compel arbitration, but Henson and Turn do not have an
    arbitration agreement with each other. “[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., Inc. v. Commc’ns Workers of Am.,
    
    475 U.S. 643
    , 648 (1986) (quoting United Steelworkers of
    Am. v. Warrior & Gulf Nav. Co., 
    363 U.S. 574
    , 582 (1960)).
    10                      IN RE HENSON
    “State contract law controls whether parties agreed to
    arbitrate.” Knutson v. Sirius XM Radio, Inc., 
    771 F.3d 559
    ,
    565 (9th Cir. 2014).
    The Customer Agreement between Henson and Verizon
    provides that only the subscriber and Verizon “agree to
    resolve disputes only by arbitration.” Turn is not a signatory
    to the Customer Agreement. The TAP Agreement between
    Turn and Verizon provides that the parties “are independent
    of each other”; that “nothing in this 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.”
    Since there is no agreement between Henson and Turn to
    arbitrate their disputes, Turn argues that the doctrine of
    equitable estoppel allows it to enforce the arbitration
    provision in the Verizon Customer Agreement against
    Henson. “[A] litigant who is not a party to an arbitration
    agreement may invoke arbitration under the FAA if the
    relevant state contract law allows the litigant to enforce the
    agreement.” Kramer v. Toyota Motor Corp., 
    705 F.3d 1122
    ,
    1128 (9th Cir. 2013) (citing Arthur Andersen LLP v.
    Carlisle, 
    556 U.S. 624
    , 632 (2009)). Henson asserts that
    California law applies to determine whether Turn, as a non-
    signatory, can compel arbitration under the doctrine of
    equitable estoppel, while Turn argues that the district court
    correctly applied New York law because of a choice-of-law
    provision in the Customer Agreement.
    1. Choice of Law
    The district court erred by applying New York law based
    on the Customer Agreement’s choice-of-law provision. “A
    choice-of-law clause, like an arbitration clause, is a
    contractual right and generally may not be invoked by one
    IN RE HENSON                        11
    who is not a party to the contract in which it appears.”
    Paracor Fin., Inc. v. Gen. Elec. Capital Corp., 
    96 F.3d 1151
    ,
    1165 (9th Cir. 1996); see also Nguyen v. Barnes & Noble
    Inc., 
    763 F.3d 1171
    , 1175 (9th Cir. 2014) (explaining that
    whether a choice-of-law provision applies depends on
    whether the parties agreed to be bound by the contract in
    which it appears). Here, Henson and Turn never agreed that
    New York law would govern the disputes between them.
    And, as discussed below, Henson does not rely on the
    Customer Agreement in his suit against Turn.
    Instead, we apply the choice-of-law principles of the
    forum state. Hoffman v. Citibank (S.D.), N.A., 
    546 F.3d 1078
    , 1082 (9th Cir 2008). Because Henson sued Turn in
    the Northern District of California, we apply California’s
    choice-of-law principles. Under California’s choice-of-law
    analysis, we will apply New York law only if Turn shows,
    among other things, that New York law “materially differs
    from the law of California.” Washington Mut. Bank, FA v.
    Superior Court, 
    15 P.3d 1071
    , 1080 (Cal. 2001). Otherwise,
    we apply California law. 
    Id.
     Turn concedes, and we agree,
    that there is no material difference between New York and
    California’s equitable estoppel laws. We therefore look to
    California’s equitable estoppel doctrine to determine
    whether Turn, as a non-signatory, can compel arbitration.
    2. California Law
    California law permits non-signatories to invoke
    arbitration agreements in limited circumstances under the
    doctrine of equitable estoppel. The theory behind equitable
    estoppel is that a plaintiff may not, “on the one hand, seek to
    hold the non-signatory liable pursuant to duties imposed by
    the agreement, which contains an arbitration provision, but,
    on the other hand, deny arbitration’s applicability because
    the defendant is a non-signatory.” Murphy v. DirecTV, Inc.,
    12                     IN RE HENSON
    
    724 F.3d 1218
    , 1229 (9th Cir. 2013) (quoting Goldman v.
    KPMG LLP, 
    92 Cal. Rptr. 3d 534
    , 543 (Ct. App. 2009)). If
    this were permitted, then a signatory to an agreement, such
    as Henson, would “have it both ways”—that is, he could sue
    the non-signatory, Turn, under the terms of the agreement
    containing the arbitration clause, but ignore the arbitration
    requirement because Turn is a non-signatory. See Goldman,
    92 Cal. Rptr. 3d at 552.
    Under California law, Henson will be equitably estopped
    from avoiding arbitration in two circumstances:
    (1) when [Henson] must rely on the terms of
    the [Customer Agreement] in asserting its
    claims against [Turn] or the claims are
    intimately founded in and intertwined with
    the [Customer Agreement], and
    (2) when [Henson] alleges substantially
    interdependent and concerted misconduct by
    [Turn] and [Verizon] and the allegations of
    interdependent misconduct are founded in or
    intimately connected with the obligations of
    the [Customer Agreement].
    Murphy, 724 F.3d at 1229 (quoting Kramer, 705 F.3d at
    1128–29, which stated the controlling statement concerning
    California equitable estoppel law as set forth in Goldman,
    173 Cal. App. 4th at 218–19).
    a. Reliance on the underlying contract
    As to the first circumstance, “merely making reference
    to an agreement with an arbitration clause is not enough.”
    Goldman, 92 Cal. Rptr. 3d at 541 (alterations and quotations
    omitted). Instead, for equitable estoppel to apply, Henson’s
    IN RE HENSON                        13
    claims against Turn must rely on the terms of the Customer
    Agreement. Id. In other words, Henson’s claims must be
    based on “the obligations imposed by the [Customer
    Agreement].” Id. Equitable estoppel is “inapplicable where
    a plaintiff’s ‘allegations reveal no claim of any violation of
    any duty, obligation, term or condition imposed by the
    [Customer Agreement].’” Murphy, 724 F.3d at 1230
    (quoting Goldman, 92 Cal. Rptr. 3d at 551). For example,
    in Kramer, we held that Toyota could not compel arbitration
    of a consumer class action on the basis of arbitration clauses
    contained in Purchase Agreements that customers entered
    into with their dealerships. See 705 F.3d at 1124–25. We
    expressly rejected Toyota’s argument that the plaintiffs’
    claims were necessarily based on the Purchase Agreements
    merely because the lawsuit was predicated on the bare fact
    that a vehicle purchase occurred. Id. at 1130–31.
    Similarly, here, Henson’s claims against Turn are not
    based on the Customer Agreement. Henson’s complaint is
    replete with allegations of wrongdoing against Turn that
    have nothing to do with the Customer Agreement. Among
    other allegations, Henson claims that Turn violated Verizon
    users’ “reasonable expectations of privacy by creating
    zombie cookies that users could neither detect nor delete,
    and which monitored user behavior well beyond web
    browsing”; that Turn acted “to disable the standard privacy
    controls employed by individuals (such as deleting or
    blocking cookies)”; that Turn “used Class members’
    personal, private, and confidential data for commercial gain
    without their knowledge or consent”; and that Turn
    consistently altered users’ mobile devices by
    “circumventing privacy controls in said devices and causing
    said devices to transmit information to Turn to which Turn
    was not entitled.” None of these allegations rely on the
    Customer Agreement or attempt to seek any benefit from its
    14                         IN RE HENSON
    terms. See Murphy, 724 F.3d at 1230. Further, New York’s
    consumer protection statute allows Henson to sue Turn for
    its allegedly deceptive acts and practices regardless whether
    Henson signed a Customer Agreement with Verizon. See id.
    at 1231; accord Rajagopalan v. NoteWorld, LLC, 
    718 F.3d 844
    , 847 (9th Cir. 2013) (rejecting equitable estoppel theory
    under Washington law where the plaintiff’s lawsuit stated
    statutory claims that were separate from the contract itself). 5
    Thus, the first circumstance for equitable estoppel does not
    apply.
    b. Substantial interdependence
    As to the second circumstance, “the doctrine of equitable
    estoppel may apply in certain cases where a signatory to an
    arbitration agreement attempts to evade arbitration by suing
    nonsignatory defendants for claims that are based on the
    same facts and are inherently inseparable from arbitrable
    claims against signatory defendants.” Murphy, 724 F.3d at
    1231 (quotation omitted). Mere “allegations of substantially
    interdependent and concerted misconduct by [Verizon] and
    [Turn], standing alone, are not enough: the allegations of
    interdependent misconduct must be founded in or intimately
    connected with the obligations of the [Customer
    Agreement].” Goldman, 92 Cal. Rptr. 3d at 541. “Even
    where a plaintiff alleges collusion, ‘the sine qua non for
    allowing a nonsignatory to enforce an arbitration clause
    based on equitable estoppel is that the claims the plaintiff
    asserts against the nonsignatory are dependent on or
    inextricably bound up with the contractual obligations of the
    5
    We also note that many of the California cases permitting non-
    signatories to compel arbitration under an equitable estoppel theory
    involve contract-based causes of action, such as tortious interference or
    breach of contract. See Murphy, 724 F.3d at 1231 n.7 (citing cases).
    IN RE HENSON                          15
    agreement containing the arbitration clause.’” Murphy,
    724 F.3d at 1231 (quoting Goldman, 92 Cal. Rptr. 3d at 537).
    Here, Henson does not allege Verizon colluded with
    Turn. On the contrary, Henson alleges that “Turn conducted
    its practices in secret” and acted without Verizon’s
    knowledge, consent, or approval. Indeed, Henson claims
    that Verizon publicly rebuked Turn’s alleged practices upon
    discovering them. We also reject Turn’s argument that
    Henson’s claims are based on Turn and Verizon’s
    interdependent and concerted conduct because Turn
    engaged in the challenged conduct in partnership with
    Verizon. The TAP Agreement between Turn and Verizon
    explicitly provides that “Turn and Verizon are independent
    of each other and nothing in this Agreement creates any
    partnership, joint venture, . . . or other similar relationship.”
    As such, the second circumstance for equitable estoppel does
    not apply here.
    The district court committed clear error in holding that
    equitable estoppel applied to compel arbitration under the
    Customer Agreement. Thus, the third Bauman factor weighs
    in favor of granting mandamus relief.
    D. Oft-Repeated Error and Issue of First
    Impression
    The fourth and fifth Bauman factors weigh against
    granting mandamus relief. There is nothing before us that
    suggests the district court’s error has been made more than
    once. Nor is there anything new about the application of
    equitable estoppel.      See Bauman, 
    557 F.2d at 655
    ;
    McDonnell-Douglas Corp. v. U.S. Dist. Court for Cent. Dist.
    of Cal., 
    523 F.2d 1083
    , 1087 (9th Cir. 1975). To grant
    mandamus relief, however, “all five factors need not be
    satisfied at once.” Douglas, 
    495 F.3d at 1066
     (quotation
    16                    IN RE HENSON
    omitted). “In the final analysis, the decision of whether to
    issue the writ lies within our discretion.” Van Dusen,
    
    654 F.3d at 841
    .
    Because the first three Bauman factors strongly favor
    mandamus relief, we conclude that the balance of factors
    favors issuing the writ. The district court’s order granting
    Turn’s motion to stay the action and compel arbitration is
    vacated.
    Turn shall bear all costs of appeal. See Fed. R. App. P.
    39(a)(3).
    PETITION GRANTED.