Hansen Beverage Company v. National Beverage Corporation

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

HANSEN BEVERAGE COMPANY, a  Delaware corporation, dba Monster Beverage Company, Plaintiff-Appellee, v. No. 06-56390 NATIONAL BEVERAGE CORP., a  D.C. No. CV-06-05470-ER Delaware corporation; SHASTA BEVERAGE INC., a Delaware ORDER corporation; NEWBEVCO INC., a Delaware corp.; FREEK’N BEVERAGE CORP., a Delaware corporation, Defendants-Appellants.  Filed August 17, 2007

Before: William C. Canby, Jr. and Sidney R. Thomas, Circuit Judges, and Suzanne B. Conlon,* District Judge.

ORDER

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., slip op. 7699, 2007 WL 1859607 (9th Cir. 2007). Our mandate has

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

10393

10394 HANSEN BEVERAGE v. NATIONAL BEVERAGE 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 perma- nent. 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 Pat- tullo, 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.

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