NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 8 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: ZAPPOS.COM, INC., CUSTOMER No. 16-16860
DATA SECURITY BREACH
LITIGATION, D.C. No.
________________________ 3:12-cv-00325-RCJ-VPC
THERESA STEVENS; et al.,
MEMORANDUM*
Plaintiffs-Appellants,
v.
ZAPPOS.COM., INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Argued and Submitted December 5, 2017
San Francisco, California
Before: OWENS and FRIEDLAND, Circuit Judges, and BUCKLO,** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Elaine E. Bucklo, United States District Judge for the
Northern District of Illinois, sitting by designation.
Plaintiffs appeal the district court’s order denying their motion to enforce a
purported settlement agreement. We affirm because the parties did not have a
meeting of the minds on all essential terms of the agreement.1
“[A] settlement agreement is a contract” under Nevada law, and “its
construction and enforcement are governed by principles of contract law.” May v.
Anderson, 119 P.3d 1254, 1257 (Nev. 2005). To form a contract, the parties must
have a meeting of the minds, which “exists when the parties have agreed upon the
contract’s essential terms.” Certified Fire Prot., Inc. v. Precision Constr., Inc., 283
P.3d 250, 255 (Nev. 2012). “Which terms are essential ‘depends on the agreement
and its context and also on the subsequent conduct of the parties . . . .’” Id.
(quoting Restatement (Second) of Contracts § 131 cmt. g (Am. Law Inst. 1981)).
A district court’s factual findings regarding contract formation are reviewed for
clear error, and its legal conclusion about enforceability is reviewed de novo. Casa
del Caffe Vergnano S.P.A. v. ItalFlavors, LLC, 816 F.3d 1208, 1211 (9th Cir.
2016).
The district court did not clearly err in finding that the fees, costs, and
incentive award caps were material terms in the parties’ negotiations here. There
1
We address the parties’ Article III standing dispute in a concurrently filed
opinion. Although the opinion provides a narrowed definition of “Plaintiffs” for
use therein, the term “Plaintiffs” here refers to all the named plaintiffs in these
consolidated actions.
2
is no evidence that Zappos shared the view of Plaintiffs’ counsel that the parties
would reserve negotiation of fees, costs, and incentive awards until after the parties
reached a binding agreement on the terms of classwide relief. It is not relevant to
the enforceability of the agreement between the parties that Plaintiffs’ fees request
would not have bound the district court. See 28 U.S.C. § 1712 (2012). And the
district court did not clearly err in finding that the absence of a signed agreement
indicated that Zappos had not assented to the draft MOU. In light of these factual
findings, the district court did not err in concluding as a matter of law that the draft
memorandum of understanding was not an enforceable contract.
The district court’s conclusion that the purported settlement agreement was
unenforceable is therefore AFFIRMED. Each party shall bear its own costs on
appeal.
3