#### IN RE: ZAPPOS.COM, INC., CUSTOMER DATA SECURITY BREACH LITIGATION, Theresa Stevens; et al., Plaintiffs-Appellants, v. Zappos.com., Inc., Defendant-Appellee.

No. 16-16860

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 5, 2017 San Francisco, California

Filed March 8, 2018

Ben Barnow, Esquire, Attorney, Barnow and Associates, P.C., Chicago, IL, Richard Lyle Coffman, Attorney, The Coffman Law Firm, Beaumont, TX, Marc Lawrence Godino, Esquire, Senior Counsel, Glancy *762Binkow & Goldberg, LLP, Los Angeles, CA, David C. O’Mara, Counsel, The O’Mara Law Firm, P.C., Reno, NV, Douglas Gregory Blankinship, Finkelstein Blan-kinship Frei-Pearson and Garber LLP, White Plains, NY, for Plaintiffs-Appellants Theresa Stevens, Kristin O’Brien, Terri Wadsworth, Dahlia Habashy, Patti Has-ner, Shari Simon, Stephanie Priera, Kathryn Vorhoff, Robert Ree

Ben Barnow, Esquire, Attorney, Barnow and Associates, P.C., Chicago, IL, Timothy G. Blood, Esquire, Attorney, Blood Hurst *&*O’Reardon LLP, San Diego, CA, Richard Lyle Coffman, Attorney, The Coffman Law Firm, Beaumont, TX, Marc Lawrence Godino, Esquire, Senior Counsel, Glancy Binkow *&*Goldberg, LLP, Los Angeles, CA, David C. O’Mara, Counsel, The O’Mara Law Firm, P.C., Reno, NV, Douglas Gregory Blankinship, Finkelstein Blan-kinship Frei-Pearson and Garber LLP, White Plains, NY, for Plaintiff-Appellant Denise Relethford

Robert R. McCoy, Kaempfer Crowell, Las Vegas, NV, Stephen J. Newman, Esquire, Partner, Julia B. Strickland, Attorney, Stroock & Stroock *&*Lavan LLP, Los Angeles, CA, for Defendant-Appellee

Before: OWENS and FRIEDLAND, Circuit Judges, and BUCKLO,* District Judge.

*

**The Honorable Elaine E. Bucldo, United States District Judge for the Northern District of Illinois, sitting by designation.

MEMORANDUM **

Plaintiffs appeal the district court’s order denying their motion to enforce a purported settlement agreement. We affirm because the parties did not have a meeting of the minds on all essential terms of the agreement.1

“[A] settlement agreement is a contract” under Nevada law, and “its construction and enforcement are governed by principles of contract law.” *May v. Anderson,*121 Nev. 668, 119 P.3d 1254, 1257 (2005), To form a contract, the parties must have a meeting of the minds, which “exists when the parties have agreed upon the contract’s essential terms.” *Certified Fire Prat., Inc. v. Precision Constr., Inc.,*128 Nev. 371, 283 P.3d 250, 255 (2012). “Which terms are essential ‘depends on the agreement and its context and also on the subsequent conduct of the parties....’” *Id.*(quoting Restatement (Second) of Contracts § 131 cmt. g (Am. Law Inst. 1981)). A district court’s factual findings regarding contract formation are reviewed for clear error, and its legal conclusion about enforceability is reviewed de novo. *Casa del Caffe Vergnano S.P.A. v. ItalFlavors, LLC,*816 F.3d 1208, 1211 (9th Cir. 2016).

The district court did not clearly err in finding that the fees, costs, and incentive award caps were material terms in the parties’ negotiations here. There is no evidence that Zappos shared the view of Plaintiffs’ counsel that the parties would reserve negotiation of fees, costs, and incentive awards until after the parties reached a binding agreement on the terms of classwide relief. It is not relevant to the enforceability of the agreement between the parties that Plaintiffs’ fees request would not have bound the district court. *See 28*U.S.C. § 1712 (2012). And the district court did not clearly err in finding that the absence of a signed agreement *763indicated that Zappos had not assented to the draft MOU. In light of these factual findings, the district court did not err in concluding as a matter of law that the draft memorandum of understanding was not an enforceable contract.

The district court’s conclusion that the purported settlement agreement was unenforceable is therefore AFFIRMED. Each party shall bear its own costs on appeal.

**

 This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

1

. We address the parties' Article III standing dispute in a concurrently filed opinion, Although the opinion provides a narrowed definition of “Plaintiffs” for use therein, the term "Plaintiffs” here refers to all the named plaintiffs in these consolidated actions.