HANSEN BEVERAGE COMPANY v. National Beverage Corp.
Appeal Court of Appeals for the Ninth Circuit, Case No. 02-56256, 02-56390

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499 F.3d 923 (2007)

HANSEN BEVERAGE COMPANY, a Delaware corporation, dba Monster Beverage Company, Plaintiff-Appellee,
NATIONAL BEVERAGE CORP., a Delaware corporation; Shasta Beverage Inc., a Delaware corporation; Newbevco Inc., a Delaware corp.; Freek'n Beverage Corp., a Delaware corporation, Defendants-Appellants.

No. 06-56390.

United States Court of Appeals, Ninth Circuit.

August 17, 2007.

Lynda J. Zadra-Symes, Esq., John B. Sganga, Esq., Steven J. Nataupsky, Esq., Lauren Keller, Esq., Joe Cianfrani, Esq., Knobbe Martens Olson & Bear, LLP, Irvine, CA, for Plaintiff-Appellee.

Shawn McDonald, Esq., Latham & Watkins, LLP, Stephen P. Swinton, Esq., Los Angeles, CA, Kristine L. Wilkes, Esq., Colleen Carlton Smith, Esq., Latham & Watkins, LLP, Harley I. Lewin, San Diego, CA, Greenberg Traurig, Gregory A. Nylen, Esq., New York, NY, Karin L. Bohmholdt, Esq., Greenberg Traurig LLP, Santa Monica, CA, Elliot H. Scherker, Esq., Greenberg Traurig PA, Miami, FL, for Defendants-Appellants.

Before: WILLIAM C. CANBY, JR. and SIDNEY R. THOMAS, Circuit Judges, and SUZANNE B. CONLON,[*] District Judge.


The motion of Hansen Beverage Company to file its Motion to Vacate Opinion under seal is GRANTED, and its motion and reply to the opposition are ordered sealed.

On June 29, 2007, we filed our opinion in the appeal by National Beverage Company of a preliminary injunction. See Hansen Beverage Co. v. National Beverage Co., 493 F.3d 1074 (9th Cir.2007). Our mandate has not yet issued. It has now been made known to us that, on June 8, 2007, the parties had executed a settlement agreement that, among other things, stipulated that the preliminary injunction that was the subject of the appeal was made permanent. As a consequence, there was no longer a controversy between the parties over the preliminary injunction at the time we issued our opinion, and the case was moot.

We lacked jurisdiction to decide a moot case. See In re Pattullo, 271 F.3d 898, 900 (9th Cir.2001). We accordingly VACATE our opinion and decision of June 29, 2007, and DISMISS this appeal. See id. at 902.


[*] The Honorable Suzanne B. Conlon, Senior United States District Judge for the Northern District of Illinois, sitting by designation.


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