                           NOT FOR PUBLICATION                           FILED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.




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