UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

UFCW LOCAL 1500 PENSION FUND, No. 17-15435 on behalf of itself and all others similarly situated, D.C. No. Plaintiff-Appellant, 3:16-cv-00478- RS v. MARISSA MAYER; DAVID FILO; SUE OPINION JAMES; THOMAS J. MCINERNEY; CHARLES R. SCHWAB; H. LEE SCOTT, JR.; KENNETH A. GOLDMAN; RONALD S. BELL; HENRIQUE DE CASTRO; MAX R. LEVCHIN; JANE E. SHAW; MAYNARD WEBB, JR.; YAHOO! INC., Nominal Defendant, Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Richard Seeborg, District Judge, Presiding

Argued and Submitted June 13, 2018 San Francisco, California

Filed July 12, 2018 2 UFCW LOCAL 1500 PENSION FUND V. MAYER

Before: Mary M. Schroeder, David M. Ebel, * and John B. Owens, Circuit Judges.

Opinion by Judge Owens

SUMMARY **

Investment Company Act

The panel affirmed the district court’s dismissal of a lawsuit bringing derivative claims against Yahoo! Inc.’s board of directors and certain corporate officers, as well as one direct claim against Yahoo!, under the Investment Company Act.

The plaintiff alleged that when Yahoo! invested in Alibaba.com, a Chinese retail website, Yahoo! violated the conditions of its exemption, granted by the Securities and Exchange Commission, from the registration requirements of the ICA. The panel held that the plaintiff failed to state a claim because the ICA does not establish a private right of action for challenging the continued validity of an ICA exemption.

* The Honorable David M. Ebel, United States Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, 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. UFCW LOCAL 1500 PENSION FUND V. MAYER 3

COUNSEL Richard L. Stone (argued), Blackner Stone & Associates PA, Palm Beach, Florida; Ira M. Press and Peter S. Linden, Kirby McInerney LLP, New York, New York; for Plaintiff- Appellant. Mark R. S. Foster (argued), Joshua A. Korr, and Jordan Eth, Morrison & Foerster LLP, San Francisco, California, for Defendants-Appellees.

OPINION OWENS, Circuit Judge:

Plaintiff-Appellant UFCW Local 1500 Pension Fund (“UFCW”) appeals from the district court’s dismissal of a lawsuit bringing derivative claims against Yahoo! Inc.’s board of directors and certain corporate officers, as well as one direct claim against Yahoo!. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. I. BACKGROUND

A. Yahoo!, Alibaba, and the ICA

Back in 1995, Yahoo! helped pioneer what the Supreme Court calls “the Cyber Age.” Packingham v. North Carolina, 137 S. Ct. 1730, 1736 (2017). Using (for its time) cutting-edge technology, Yahoo! enabled people to visit websites previously inaccessible except to the most internet savvy. Its promise as an internet search company was so bright, in fact, that the 2000 movie Frequency featured Yahoo! as the stock for the next millennium. 4 UFCW LOCAL 1500 PENSION FUND V. MAYER

Of course, Hollywood doesn’t always get it right. Although Yahoo! has fared better than dot-com busts like eToys and Pets.com, Yahoo!’s search engine technology turned out to be closer in value to the Ark of the Covenant at the end of Raiders of the Lost Ark than the Apple stock that Lieutenant Dan purchased in Forrest Gump. Today we “Google” things—we do not “Yahoo!” them (or “Alta Vista,” “Excite,” or “Dogpile” them for that matter). But during its marketplace decline this century, Yahoo! made a savvy $1 billion investment in