NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 5 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID MOSHE RAHMANY, individually No. 17-35094 and on behalf of all others similarly situated and YEHUDA RAHMANY, individually D.C. No. 2:16-cv-01416-JCC and on behalf of all others similarly situated,

Plaintiffs-Appellants, MEMORANDUM*

v.

T-MOBILE USA INC.,

Defendant,

and

SUBWAY SANDWICH SHOPS, INC.,

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington John C. Coughenour, District Judge, Presiding

Submitted March 16, 2018** San Francisco, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Before: PAEZ and IKUTA, Circuit Judges, and ADELMAN,*** District Judge.

David and Yehuda Rahmany (collectively, “Rahmany”) appeal the district

court’s order granting Subway Sandwich Shops, Inc. (“Subway”)’s motion to

compel arbitration and dismissing the case. Applying California law as stipulated

by the parties, we reverse.

The district court erred in concluding that Subway, a non-signatory to the

Wireless Agreement between Rahmany and T-Mobile USA, Inc. (“T-Mobile”),

could equitably estop Rahmany from avoiding the Wireless Agreement’s

arbitration clauses.1 Equitable estoppel is “inapplicable” because Rahmany’s

“allegations reveal no claim of any violation of any duty, obligation, term or

condition imposed by the [Wireless Agreement].” In re Henson, 869 F.3d 1052,

1060 (9th Cir. 2017) (quoting Murphy v. DirecTV, Inc., 724 F.3d 1218, 1230 (9th

Cir. 2013)). Rahmany brings two claims alleging that Subway violated the

Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, by encouraging

T-Mobile to spam message its cellular customers with an advertisement for a “T-

Mobile Tuesday” sandwich deal at Subway. Although Rahmany’s complaint

*** The Honorable Lynn S. Adelman, United States District Judge for the Eastern District of Wisconsin, sitting by designation. 1 We use the term “Wireless Agreement” to refer to the collection of relevant agreements between Rahmany and T-Mobile, including the T-Mobile Terms & Conditions, a service agreement, and an iPhone lease agreement.

2 alleges that he did not provide “prior express written consent” to receive the text

messages at issue, such an allegation does not constitute a “claim of [a] violation”

of the Wireless Agreement. Id. The TCPA, not the Wireless Agreement, creates

and defines any alleged duty to refrain from sending an unwanted text message.

Furthermore, “[e]xpress consent is not an element of a plaintiff’s prima facie

[TCPA] case but is an affirmative defense for which the defendant bears the

burden of proof.” Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 1044

(9th Cir. 2017). Thus, although Subway’s affirmative defense of express consent

may require the district court to analyze the Wireless Agreement, Rahmany’s

claims do not “rely on the terms of the [Wireless Agreement],” nor does Rahmany

allege “substantially interdependent and concerted misconduct” between Subway

and T-Mobile that is “founded in or intimately connected with the obligations of

the [Wireless Agreement].” Murphy, 724 F.3d at 1229 (quoting Kramer v. Toyota

Motor Corp., 705 F.3d 1122, 1128–29 (9th Cir. 2013)); see also In re Henson, 869

F.3d at 1060–62. Accordingly, the district court erred in enforcing the Wireless

Agreement’s arbitration clauses against Rahmany.

REVERSED.

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