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Orange, S.A. v. United States Dist. Court

United States Court of Appeals, Ninth Circuit

April 8, 2016

IN RE ORANGE, S.A.; ANNE BENRIKHI; DIMITRI DELMAS; OLIVER GODINIAUX; GUILLAUME GUIMOND; FABRICE PETESCH; JACQUES VIEL; BARBARA BOBILLIER; BENOIT AMET; THOMAS LESENECHAL; FLORIAN DE SA; ANTOINE LECOUTTEUX, ORANGE, S.A.; ANNE BENRIKHI; DIMITRI DELMAS; OLIVER GODINIAUX; GUILLAUME GUIMOND; FABRICE PETESCH; JACQUES VIEL; BARBARA BOBILLIER; BENOIT AMET; THOMAS LESENECHAL; FLORIAN DE SA; ANTOINE LECOUTTEUX, Petitioners,
v.
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO, Respondent, TELESOCIAL, INC., Real Party in Interest

         Argued and Submitted October 19, 2015, San Francisco, California

          D.C. No.3:14-cv-03985-JD.

          DENIED.

          SUMMARY[*]

         Mandamus Relief

         The panel denied a petition for a writ of mandamus, brought by Orange, S.A., and several of its employees, under 28 U.S.C. § 1651, asking this court to direct the district court to dismiss Telesocial, Inc.'s First Amended Complaint.

         Orange and Telesocial executed a non-disclosure agreement (" NDA" ) concerning a custom software application named " Call Friends." Telesocial filed an action in the Northern District of California, alleging violations of the Computer Fraud and Abuse Act, and California state law claims. The district court denied Orange's motion to dismiss Telesocial's First Amended Complaint based on forum non conveniens.

         In denying Orange's petition for writ of mandamus, the panel applied the factors in Bauman v. United States, 557 F.2d 650, 654 (9th Cir. 1977), and concluded that the district court did not commit clear legal error in determining that the NDA did not cover the claims at issue; Orange had the ability on direct appeal to attain the relief it desired; Orange would not be prejudiced in a way that was not correctable on appeal; and the district court's decision did not raise a novel issue that affected the international business community.

         Daniel Schimmel (argued) and Anthony D. Mirenda, Foley Hoag, New York, New York; Michael H. Page, Durie Tangri, San Francisco, California, for Petitioners.

         Benjamin L. Singer (argued) and Renee B. Bea, Colt Singer Bea, San Francisco, California; Matthew S. Warren and Patrick M. Shields, Warren Lex, San Francisco, California, for Respondent.

         Before: J. Clifford Wallace, Dorothy W. Nelson, and Richard R. Clifton, Circuit Judges.

          OPINION

         J. Clifford Wallace, Senior Circuit Judge.

         Orange, S.A. and several of its employees (collectively, Orange) ask this court to issue a writ of mandamus under 28 U.S.C. § 1651 directing the district court to (1) vacate its order denying Orange's motion to dismiss and (2) direct an entry of judgment dismissing Telesocial, Inc.'s (Telesocial) First Amended Complaint (FAC). We have jurisdiction pursuant to the All Writs Act, 28 U.S.C. § 1651(a), and decline to issue the writ. Under 28 U.S.C. § 1291, we have " jurisdiction of appeals from all final decisions of the district courts." Special Investments, Inc. v. Aero Air, Inc., 360 F.3d 989, 993 (9th Cir. 2004). A district court's decision is appealable under section 1291 only when the decision ends the litigation on the merits and leaves nothing for the court to do but execute the judgment. Confederated Salish v. Simonich, 29 F.3d 1398, 1401 (9th Cir. 1994) (internal quotation and citation omitted). A district court order denying a motion to dismiss for forum non conveniens is not a final decision for purposes of section 1291. Van Cauwenberghe v. Biard, 486 U.S. 517, 529, 108 S.Ct. 1945, 100 L.Ed.2d 517 (1988). Nevertheless, under the All Writs Act, if we would have the power to entertain appeals at some stage of the proceedings, we have the power to issue writs of mandamus in the case. United States v. Harper, 729 F.2d 1216, 1221 (9th Cir. 1984).

         I.

         Telesocial is a San Francisco start-up, formed in 2008, to solve a unique telecommunications problem: how to enable telephone calls between users of social media without the need for telephone numbers. To remedy the problem, Telesocial created a custom software application (app) named " Call Friends," which allows users of social networks (such as Facebook) to place carrier-based phone calls directly to other users.

         Orange, a French telecommunications provider, approached Telesocial in February 2012 about a possible agreement to acquire the app. Over the next several months, Telesocial demonstrated its software and arranged for Orange staff to test the product. To test the product, Telesocial allowed Orange personnel in the United States to download and use the demonstration app without restriction. Because Telesocial had to pay for its users' international calls, it required overseas users to insert a password. On April 18, 2012, Telesocial provided Orange with the password--" CALLFRIENDS" --and confirmed that Orange had overseas access to test the app.

         Shortly after, on April 25, 2012, Orange and Telesocial executed a non-disclosure agreement (NDA). The NDA specifies that the " [p]arties desire to have certain business discussions with regards to a possible contractual relationship" and that they " wish to reciprocally protect and safeguard any information they may disclose to each other during their [d]iscussions, and intend to hold such disclosures in confidence." The NDA protected all " confidential information," which it defined as all non-public information that either party disclosed during the discussions, from being disclosed to third parties, used for purposes beyond the discussions, or otherwise distributed. The NDA excluded some confidential ...


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