NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 21 2025

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

Doctor PETER ATTIA, No. 24-2622 D.C. No. Plaintiff - Appellee, 4:23-cv-03433-HSG v.

MEMORANDUM*

OURA RING, INC.; OURA HEALTH,

LTD.,

Defendants - Appellants.

Appeal from the United States District Court for the Northern District of California Haywood S. Gilliam Jr., District Judge, Presiding

Argued and Submitted February 13, 2025 San Francisco, California

Before: N.R. SMITH and JOHNSTONE, Circuit Judges, and CHRISTENSEN, District Judge.**

Defendant-Appellant Ouraring, Inc.,1 a United States-based subsidiary of the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Dana L. Christensen, United States District Judge for the District of Montana, sitting by designation. 1 The correct name of the Delaware corporation named in this lawsuit as “Oura Ring, Inc.” is Ouraring, Inc. Finnish health technology company Oura (collectively, “Oura”), appeals the denial

of its motion to compel arbitration of claims filed by Plaintiff-Appellee Dr. Peter

Attia. We have jurisdiction pursuant to 9 U.S.C. § 16(a)(1)(C). We review de novo

the denial of a motion to compel arbitration. Caremark, LLC v. Chickasaw Nation,

43 F.4th 1021, 1028 (9th Cir. 2022). We affirm.

The district court did not err in concluding this case concerns the existence,

rather than the scope, of an agreement to arbitrate. Oura argues that the presence of

an arbitration provision with a delegation clause in the parties’ 2016 Amended and

Restated Shareholder’s Agreement (“Shareholder Agreement”) requires that issues

of arbitrability be sent to the arbitrator. RB-8. But Oura conceded, for purposes of

resolving the motion to compel arbitration, the existence of a second agreement

governing Dr. Attia’s advisory role, which does not include an arbitration

provision. Oura stated that the district court “may construe the Plaintiff’s

allegations that he entered into the [Advisor Agreement] in a favorable light at this

stage of the proceedings.” 3-ER-262. This concession gives rise to a fourth-order

dispute about which contract controls. See Coinbase, Inc. v. Suski, 602 U.S. 143,

149 (2024) (explaining that fourth-order disputes arise where “parties have

multiple agreements that conflict as to the . . . question of who decides

arbitrability”). And in fourth-order disputes, it is for the court—not the arbitrator—

to determine whether the parties agreed to send a given dispute to arbitration. See

2 24-2622 id. at 149–50.

The district court similarly did not err in its determination that the

Shareholder Agreement does not encompass the parties’ dispute. When read

holistically, the Shareholder Agreement governs Oura’s relationship with, and

responsibilities to, its Shareholders; it does not purport to govern all future

transactions between Oura and Dr. Attia. See, e.g., Johnson v. Walmart, Inc., 57

F.4th 677, 681 (9th Cir. 2023) (concluding that Walmart.com’s Terms of Use,

which included an arbitration agreement, did not govern plaintiff’s in-store

purchases). Dr. Attia’s claims with respect to his advisory and consulting work do

not arise out of the contract containing the arbitration agreement; rather, his claims

arise out of an entirely separate agreement governing Dr. Attia’s advisory work.

See id.

AFFIRMED.

3 24-2622