SAN FRANCISCO (CN) Verizon customers who accused an online ad company of using zombie cookies to collect personal data through their smartphones will have a second chance to sue the company as a class, the Ninth Circuit ruled Tuesday.
A three-judge appeals panel granted the subscribers petition to overturn a federal judges order staying theirproposedclass action and compelling arbitration between the lead plaintiff and Verizon over Turn Inc.s alleged conduct, ruling that the lower court had committed clear error.
We are left with a definite and firm conviction that a mistake has been committed, the per curiam opinion said.
A class of Verizon customers from New York sued Turn in the Northern District of California in 2015, claiming the company used zombie cookies to monitor their online behavior through their mobile devices.
Advertisers use bits of data called cookies to gather web information about users that can be used in targeted advertising. A user can delete a cookie, but lead plaintiff Anthony Henson said Turns zombie cookies evaded detection and could not be deleted. When a person deleted Turns cookies, the company recreated them, he claimed.
Last year, U.S. District Judge Jeffery White granted Turns motion to stay the class action and compel arbitration, finding the claims against Turn were inextricably intertwined with a Verizon customer agreement that includes an arbitration clause.
The plaintiffs had argued Turns motion to compel arbitration should be denied because Turn was not a party to the agreement. But White found arbitration must becompelled when claims arise directly from a provision of a contract that requires arbitration to settle disputes.
The Ninth Circuit disagreed with White Tuesday, findingthe plaintiffs claims arent based on the customer agreement. Instead, their complaint was replete with allegations of wrongdoing against Turn that have nothing to do with the customer agreement, the court wrote, including that Turn collected data about Verizon users without their knowledge and bypassed their phones privacy controls in order to transmit their information to Turn.
None of these allegations rely on the customer agreement or attempt to seek any benefit from its terms, the panel wrote in its 16-page opinion.
Nimish Desai, a partner withLieff Cabraser Heimann & Bernstein in San Francisco who represents the plaintiffs, said Tuesday that he and his clients were pleased with the decision.
We are looking forward to litigating these claims on behalf of the plaintiffs and the proposed class, he said in an email.
To arrive at its conclusion, the panel relied on the third factor inBauman v. U.S. Dist. Court, decided by the Ninth Circuit in 1977. The factor considers whether a trial courts order is wrong as a matter of law.
The panel found that White had erred by granting Turns motion to compel arbitration under New Yorks equitable estoppel doctrine. Instead, White should have applied the equitable estoppel doctrine of California where Turn was sued to determine whether Turn, as a nonsignatory to the customer agreement, can compel arbitration.
Under California law, Henson would have to arbitrate if his claims relied on the customer agreement, or if the claims were founded in or intertwined with the agreement, according to the Ninth Circuits opinion.
The district court committed clear error by applying New Yorks equitable estoppel doctrine, rather than Californias, and by failing to apply California law correctly, the panel wrote.
The panel found that three of the fiveBaumanfactors weighed in favor of granting the petition.
Michael Rubin of Wilson Sonsini Goodrich & Rosati in San Franciscorepresents Turn. He could notbe reached for comment Tuesday.
Digital marketing tech company Amobee acquired Turn this past April, according to an announcement on Amobees website. Representatives for Amobee and Verizon did not return requests for comment.
Circuit Judges William Fletcher and Richard Tallman and U.S. District Judge Roslyn Silver, sitting by designation from the District of Arizona, made up the Ninth Circuit panel.
Like Loading...
Related
See the article here:
9th Circuit Revives Class Action Over 'Zombie' Smartphone Cookies - Courthouse News Service
- The Cranberries' Zombie - the story behind the incendiary song - Louder - April 22nd, 2024
- Chris Riddell on the zombie Tory government falling apart at the seams cartoon - The Guardian - April 22nd, 2024
- Zombie grave dating back 4,200 years discovered in Germany, photos show - Miami Herald - April 22nd, 2024
- Steam zombie survival game leaves early access 11 years on, and you've got one week to get it cheap - PCGamesN - April 22nd, 2024
- "Zombie" cicadas with STDs are coming to Virginia - Axios - April 22nd, 2024
- Deathtroopers is the Star Wars zombie horror game I never knew I needed - PC Gamer - April 22nd, 2024
- Zombie Army VR Reveals The Story In Latest Trailer - Bleeding Cool News - April 22nd, 2024
- Where Infected "Zombie Cicadas" In The US Will Emerge In 2024 - TheTravel - April 22nd, 2024
- Zombie anti-abortion laws are menacing American women - The Hill - April 22nd, 2024
- Joe Manganiello to Zombie It Up in Mountain Man Adaptation - Reactor - Reactor - April 22nd, 2024
- Frozen Soul Covered White Zombie and It Rules - MetalSucks - April 22nd, 2024
- Arizona's abortion ban could bring zombie laws back to life in other states - Fast Company - April 22nd, 2024
- Arizona abortion ban shows the dangers of reviving zombie laws - MSNBC - April 22nd, 2024
- Zombie fires smoldering near Canadian oil and gas wells threaten production following 2023 wildfires - WorldOil - April 22nd, 2024
- You'll Never Guess Who Doesn't Want to Repeal a Zombie Abortion Ban - The New Republic - April 22nd, 2024
- Zombie Army VR: New trailer gives a glimpse of the gruesome campaign - MIXED Reality News - April 22nd, 2024
- Zombie Tests: Is the SAT Back From the Dead? - Fair Observer - April 22nd, 2024
- How likely are you to survive a zombie apocalypse in Connecticut? You may want to travel north - Hartford Courant - April 22nd, 2024
- Missouri Reports 162 New Cases Of Deer 'Zombie' Disease In 2023 - Lake Expo - April 22nd, 2024
- Zombie Fires Pose Looming Threat to Canada's Oil and Gas Infrastructure - OilPrice.com - April 22nd, 2024
- Rob Zombie Presenting House on Haunted Hill Soundtrack on Vinyl - ComicBook.com - April 22nd, 2024
- Take on Zombie Stormtroopers In This Star Wars Fan Game - IGN - April 22nd, 2024
- The Best Zombie Game of 2023 Has a New Expansion Out Now - Esports.net News - April 22nd, 2024
- Frozen Soul Debuts Frosty Rendition of White Zombie's 'Creature of the - Knotfest - April 22nd, 2024
- 'Dawn of the Dead' at 45: A Zombie Love Affair That Never Died - The New York Times - April 12th, 2024
- Hyper-sexual 'zombie cicadas' infected with bizarre STD fungus will emerge in US - New York Post - April 12th, 2024
- Zombie malls and other retail centers getting extreme makeovers to keep up with the times - Chicago Tribune - April 12th, 2024
- 'Zombie' drug xylazine found in cannabis THC vapes in UK - BBC.com - April 12th, 2024
- Taxing health insurance: The Republican zombie that refuses to die - Roll Call - April 12th, 2024
- Fungus-infected Zombie Cicadas with hypersexuality to emerge in the US this year: Expert - Hindustan Times - April 12th, 2024
- Zombie Classic Dawn Of The Dead Coming Back to Theaters for 45th Anniversary - MetalSucks - April 12th, 2024
- E-News | 'Zombie cicadas' infected with sexually transmitted fungus expected to emerge this year in parts of US - WVU ENews - April 12th, 2024
- Deadly Zombie Sedative Penetrating The U.K.s Illicit Drugs Market - Forbes - April 12th, 2024
- Seattle Police warn that base ingredient in 'zombie drug' tranq is being sold as standalone pill - FOX 13 Seattle - April 12th, 2024
- Opinion | Today's Opinions: Haunted by zombie law and thrown into abortion time-travel - The Washington Post - The Washington Post - April 12th, 2024
- Rob Zombie Teases 'House of 1000 Corpses' Book With Rare Photos, Original Script and More! - Bloody Disgusting - April 12th, 2024
- Zombie malls getting extreme makeovers to keep up with the times - Detroit News - April 12th, 2024
- 2000s Horror Fantasy Is One Of The Most Unique Takes On The Zombie Genre - Giant Freakin Robot - April 12th, 2024
- Mysterious 'Zombie Neurons' Unlock Secrets of Learning in The Brain - ScienceAlert - April 12th, 2024
- Zombie SKUs: What They Are, How They Work & Results - JumpFly PPC Advertising News - April 12th, 2024
- Arizona Reviving Its Zombie Abortion Ban Is Trump's Doing - The Cut - April 12th, 2024
- Hyper-sexual "zombie cicadas" that are infected with sexually transmitted fungus expected to emerge this year - CBS News - April 12th, 2024
- Should we be concerned about zombie cicadas? - WGN Radio - Chicago - April 12th, 2024
- You need to play this underrated zombie shooter before it leaves Xbox Game Pass - Digital Trends - April 12th, 2024
- End the 'zombie' Comstock Act - Star Tribune - April 12th, 2024
- OPINION - Flesh-eating zombie narcotics are on our streets Britain is badly losing its war on drugs - Yahoo News UK - April 12th, 2024
- What Is Xylazine - The Flesh-Eating 'Zombie' Drug Linked To 11 Deaths in The UK? - Times Now - April 12th, 2024
- Zombie Cicadas To Emerge In Virginia: What To Know - Patch - April 12th, 2024
- What Is "Zombie Drug" Gripping The UK? - NDTV - April 12th, 2024
- OJ Simpson's Final Film Will Resurrect His Naked Gun Character - As A Zombie? - Looper - April 12th, 2024
- Flesh-eating 'zombie drug' sweeping US is linked to 11 UK deaths - The Telegraph - April 12th, 2024
- Flesh-rotting 'Zombie drug' tranq raises alarm in UK - The Times of India - April 12th, 2024
- Zombie Cicadas To Emerge In GA: What To Know - Patch - April 12th, 2024
- What was the first-ever zombie movie? - Far Out Magazine - April 12th, 2024
- Even Will Smith Couldnt Save Zombie Survival Game Undawn, Which Flopped Spectacularly - IGN - March 24th, 2024
- Rob Zombie Recommends This Surprisingly Wholesome Comedy - Dread Central - March 24th, 2024
- Army Writing and the Zombie (Noun) Apocalypse - Modern War Institute - United States Military Academy West Point - March 24th, 2024
- Fatal Fury's Mai Shiranui Is In This Zombie Survival Game For Some Reason - Time Extension - March 24th, 2024
- Should you be worried about 'zombie deer'? | College of Public Health - George Mason University - March 24th, 2024
- 'Scooby-Doo on Zombie Island' Scares Its Way to Blu-ray for the First Time This Spring - Collider - March 24th, 2024
- Rob Zombie hates my guts: GWAR's Dave 'Oderus Urungus' Brockie was a genius, and here's an interview that proves it - Louder - March 24th, 2024
- In the fight against gun violence, Rep. Frost Introduces the Destroy Zombie Guns Act - The Apopka Voice - March 24th, 2024
- Elfriede Jelinek's 'The Children of the Dead' is a historical zombie novel - The Washington Post - The Washington Post - March 24th, 2024
- Germany's Zombie Government Is Fueling the Far Right - The Atlantic - March 24th, 2024
- Zombie Survival Game Undawn Has Crashed And Burned According To A Reuters Report - MMOs.com - March 24th, 2024
- Will Smiths Zombie Game Has Been Hit Harder Than Chris Rock at the Oscars Its Astronomical Budget Was ... - imdb - March 24th, 2024
- Scooby-Doo On Zombie Island / Return to Zombie Island Blu-ray (Warner Archive Collection) - Blu-ray.com - March 24th, 2024
- Registration almost here for Dothans annual Zombie 5K Chase - WDHN - March 24th, 2024
- Zombie magic and gambling club Magic Island will come alive again this summer - Houston Chronicle - March 24th, 2024
- Undawn | The $140m zombie survival game starring Will Smith that bombed while nobody was looking - Filmstories - March 24th, 2024
- After 4 years, a cult classic zombie horror manga from Ga-Rei's creator is finally getting an official English release - Gamesradar - March 24th, 2024
- Will Smith's Zombie Game Has Been Hit Harder Than Chris Rock at the Oscars - Its Astronomical Budget Was ... - FandomWire - March 24th, 2024
- "The game literally no one knew existed": The Will Smith Zombie Survival Game is Reportedly a Big Flop and Fans Are ... - FandomWire - March 24th, 2024
- Zombie-palooza --- Get to the biggest undead music event in the latest Dead Island 2 expansion: SoLA - Gaming Trend - March 24th, 2024
- Bournemouth University medical students treat 'zombie attack' in mass training simulation - The Tab - March 24th, 2024
- Zombie car factories on the rise in China as buyers opt for EVs - Financial Times - March 16th, 2024
- Hey, Remember When Rob Zombie Was Going To Direct THE CROW 3? - FANGORIA - March 16th, 2024
- New Walking Dead Twist Shows How The Zombie Outbreak Will Finally End - Screen Rant - March 16th, 2024
- Candid conversations from death row with The Zombie Hunter - Arizona's Family - March 16th, 2024
- Zombie! The Musical - REVIEW - City Hub Sydney - March 16th, 2024
Reviewed and Recommended by Erik Baquero