NOT FOR PUBLICATIONUNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITHAYLEY CHARMAINE TICE,individually and on behalf of a class ofsimilarly situated individuals, Plaintiff-Appellee, v.AMAZON.COM, INC.; A2ZDEVELOPMENT CENTER, INC., Defendants-Appellants.No. 20-55432D.C. No. 5:19-cv-01311-SVW-KKMEMORANDUM*Appeal from the United States District Courtfor theCentral District of CaliforniaStephen V. Wilson, District Judge, PresidingArgued and Submitted February 2, 2021San Francisco, CaliforniaBefore: RAWLINSON and BUMATAY, Circuit Judges, and EATON,**Judge, United States Court of International Trade.Concurrence by JudgeBUMATAY; Dissent by Judge EATONFILEDFEB 19 2021MOLLY C. DWYER, CLERKU.S.COURTOFAPPEALS*This disposition is not appropriate for publication and is not precedentexcept as provided by Ninth Circuit Rule 36-3.**Richard K. Eaton, Judge of theUnited States Court of InternationalTrade, sitting by designation.
Appellants Amazon.com, Inc. and A2Z Development Center, Inc.(collectively, Amazon) appeal the district court’s denial in part of their motion tocompel arbitration. Appellee Hayley Charmaine Tice (Tice) filed a class actioncomplaint alleging that she and other class members wereinjured becauseAmazon’s voice-activated device, Alexa, recorded Tice’s communications withouther consent. Tice allegedthat Amazon violated the California Invasion of PrivacyAct (CIPA) because it "creat[ed] permanent recordings of [Tice’s] and the ClassMembers’ voices and Alexa communications," and "intentionally and without theconsent of all parties to a confidential communication used an electronicamplifying or recording device to record the confidential communication." Ticefurther alleged that Amazon invaded her privacy in violation of California law"[b]y using its Alexa devices to record, store, analyze, and use the voices andcommunications of [Tice] and the Members of the Class without their knowledgeor consent."Although not alleged as separate claims in Tice’s complaint, the districtcourt divided Tice’s factual allegations into "three scenarios": (1) Tice’sintentional use of Alexa devices, (2) background recordings that occurred whenanother user activated Alexa, and (3) "surreptitious recordings" when "Alexasporadically record[ed] conversations without prompting and permission from2
anyone in the household." The district court concluded that Ticewas required tosubmit her intentional use and background recording claims to arbitration, but herclaim premised on "surreptitious recordings" was not subject to arbitration. The district court erred in holding that Tice’s "surreptitious recording" claimwas not subject to arbitration. The district court determined that Amazon’s termsof use and conditions of use "contain[ed] facially valid arbitration clauses," andrecognized that incorporation of the American Arbitration Association (AAA)rules delegated to the arbitrator the determination of whether Tice’s intentional useand background recording claims were covered by the agreement. Thedistrictcourt held that, because her husband agreed to the terms of useand conditions ofusefor Alexa, Tice was equitably estopped under California law from avoidingarbitration. After determining that Tice was compelled to arbitrate her otherclaims, the district court did not analyze whether the arbitration clauses similarlydelegated the threshold question of the arbitrability of Tice’s "surreptitiousrecording" claim. To theextent that the district court held that Tice’s CIPA claimwas not subject to arbitration because Amazon’s conduct was purportedly"criminal in nature," this reasoning was erroneous. Ticealleged civil claims andsought civil remedies under the CIPA, and arbitrators are not precluded fromconsidering whether such claims are subject to arbitration. SeeShearson/Am.3
Express Inc. v. McMahon, 482 U.S. 220, 239-40 (1987) (concluding that statutorycriminal provisions "do not preclude arbitration of bona fide civil actions"). Finally, thedistrict court narrowly construed the arbitration clauses aslimited to Tice’s "use"of the Alexa devices. However, the arbitration clausesapply to "any dispute or claimrelating in any way to . . . use of any AmazonService, or to any products or services sold or distributed by Amazon or throughAmazon.com"and to "[a]ny dispute or claim arising from or relating to thisAgreement or Alexa"). As a result, it is for the arbitrator to decide whether Tice’s"surreptitious recording" claim is beyond the scope of any arbitration. SeeMunrov. Univ. of S. Cal., 896 F.3d 1088, 1091 (9th Cir. 2018) (articulating that "anydoubts concerning the scope of arbitrable issues should be resolved in favor ofarbitration") (citation and alteration omitted). REVERSED and REMANDED
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