In re Henson (Henson v. U.S. District Court)

Plaintiff’s claims against defendant for common law privacy violations through use of zombie “cookies” through which defendant gathered data on plaintiff’s internet usage on his Verizon phone without Verizon’s knowledge or approval, let alone plaintiff’s, were not subject to the arbitration clause in plaintiff’s phone contract with Verizon.  The Ninth Circuit issues a writ of mandate reversing a district court’s order staying a class action and compelling the named plaintiff to arbitrate his individual claim.  The first three Bauman factors weigh heavily in favor of granting the writ.  An order staying court proceedings and compelling arbitration is not appealable.  Plaintiff will suffer harm that can’t be remedied by appeal because disposition of his individual claim in arbitration will likely deprive him of standing to represent the class in any later proceedings.  The district court was clearly wrong.  The defendant (Turn) was not a party to the arbitration agreement between plaintiff and Verizon.  Defendant could not successfully compel arbitration under that agreement by estoppel.  Plaintiff’s claims did not arise from the Verizon contract but were for common law privacy violations through use of zombie “cookies” through which Turn gathered data on plaintiff’s Internet usage allegedly without Verizon’s knowledge or approval, let alone plaintiff’s.  Also, plaintiff did not allege that defendant and Verizon were engaged in a single course of wrongful conduct.

Ninth Circuit Court of Appeals (per curiam); September 5, 2017; 2017 WL 3862458

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