United States Ninth Circuit

In an action alleging violations of 39 U.S.C. section 3009 and related state law claims arising from plaintiff's purchase of a set of fitness tapes by phone, an order confirming an arbitration award is affirmed in part, and vacated in part where: 1) plaintiff's appeal was timely; 2) the order compelling arbitration was erroneous as the district court failed to rule upon a contract formation issue before compelling arbitration; but 3) dismissal of claims against one defendant was proper as it never mailed unordered merchandise to plaintiff for purposes of section 3009, and there was no abuse of discretion in dismissing state law claims as to that defendant.

Appellate Information

• Argued 02/09/2007
• Decided 04/16/2007
• Published 04/16/2007

Judges

• CYNTHIA HOLCOMB HALL, Senior Circuit Judge., Before HALL, O'SCANNLAIN, and CALLAHAN, Circuit Judges.

Court

• United States Ninth Circuit

Counsel

• For Appellant:
  
• Eric Alan Isaacson, Lerach Coughlin Stoia Geller Rudman & Robbins, San Diego, California, for the plaintiff-appellant and the plaintiffs-intervenors-appellants.


• For Appellees:
  
• Darrel J. Hieber, Skadden, Arps, Slate, Meagher & Flom, Los Angeles, California, for defendant-appellee Memberworks, Inc., M. Jerome Elmore and Joshua F. Thorpe, Bondurant, Mixson & Elmore, Atlanta, Georgia, for defendants-appellees West Corporation and West Telemarketing Corporation.