Henson v. USDC, No. 16-71818 (9th Cir. 2017)
Annotate this CaseVerizon cellular and data subscribers filed a putative class action against Turn, a middle-man for Internet-based advertisements, challenging the company's use of "zombie" cookies. The Ninth Circuit granted a petition for writ of mandamus and vacated the district court's order granting Turn's motion to stay the action and compel arbitration. Applying Bauman v. U. S. Dist. Court, 557 F.2d 650, 654–55 (9th Cir. 1977), the panel held that the majority of the Bauman factors weigh heavily in favor of granting the writ where direct appeal was unavailable; prejudice was not correctable on appeal; and 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.
Court Description: 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 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.
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