UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

DANIEL NORCIA, on his own No. 14-16994 behalf and on behalf of all others similarly situated, D.C. No. Plaintiff-Appellee, 3:14-cv-00582-JD

v. OPINION SAMSUNG TELECOMMUNICATIONS AMERICA, LLC, a New York Corporation; SAMSUNG ELECTRONICS AMERICA, INC., a New Jersey corporation, Defendants-Appellants.

Appeal from the United States District Court for the Northern District of California James Donato, District Judge, Presiding

Argued and Submitted October 17, 2016 San Francisco, California

Filed January 19, 2017

Before: Sidney R. Thomas, Chief Judge, and Carlos T. Bea and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Ikuta 2 NORCIA V. SAMSUNG TELECOMM.

SUMMARY*

Arbitration / California Law

The panel affirmed the district court’s order denying Samsung’s motion to compel arbitration of a class action complaint alleging that Samsung made misrepresentations as to the performance of the Galaxy S4 phone.

Samsung moved to compel arbitration of the dispute on the ground that an arbitration provision, which was contained in a warranty brochure included in the Galaxy S4 box, was binding on plaintiff.

The panel applied California law. The panel rejected Samsung’s theory that the Product and Safety & Warranty Information brochure in the Galaxy S4 box created a binding contract between plaintiffs and Samsung to arbitrate the claims in plaintiff’s complaint. The panel further held that Samsung failed to demonstrate the applicability of any exception to the general California rule that an offeree’s silence did not constitute consent. The panel further held that the brochure was not enforceable as an in-the-box contract.

The panel rejected Samsung’s argument that plaintiff agreed to arbitrate his claims by signing a Customer Agreement with Verizon Wireless. The panel noted that Samsung was not a signatory to the agreement. The panel concluded that Samsung failed to bear its burden of establishing that it was a third-party beneficiary of the

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. NORCIA V. SAMSUNG TELECOMM. 3 Customer Agreement, and therefore Samsung could not enforce the arbitration provision in the agreement.

COUNSEL John R. Hurley (argued), Eduardo G. Roy, Daniel C. Quintero, and Jill Dessalines, Prometheus Partners L.L.P., San Francisco, California, for Plaintiff-Appellee. Sean D. Unger (argued), John P. Phillips, and Ryan C. Nier, Paul Hastings LLP, San Francisco, California, for Defendants-Appellants.

OPINION IKUTA, Circuit Judge:

Daniel Norcia filed a class action complaint against Samsung Telecommunications America, LLC, and Samsung Electronics America, Inc., (collectively, “Samsung”), alleging that Samsung made misrepresentations as to the performance of the Galaxy S4 phone. Samsung moved to compel arbitration of the dispute on the ground that an arbitration provision, which was contained in a warranty brochure included in the Galaxy S4 box, was binding on Norcia. We affirm the district court’s denial of Samsung’s motion.

I

On May 23, 2013, Norcia entered a Verizon Wireless store in San Francisco, California, to purchase a Samsung Galaxy S4 phone. Norcia paid for the phone at the register, 4 NORCIA V. SAMSUNG TELECOMM. and a Verizon Wireless employee provided a receipt entitled “Customer Agreement” followed by the name and address of the Verizon Wireless store. The receipt stated the order location, Norcia’s mobile number, the product identification number, and the con