Tempest v. Safeway, Inc., 3:24-cv-06553

Plaintiffs are members of Safeway’s rewards program who allege they were misled about members-only wine discounts, claiming the discounts were not genuine but always available to any consumer joining at checkout.
In 2024, Safeway updated its Terms of Use to include a mandatory arbitration clause and notified members by email.
Safeway claims it successfully delivered the updated terms to the email addresses on file for all plaintiffs, but several plaintiffs did not see or access the email before making further purchases.
Plaintiffs filed suit alleging consumer protection violations, breach of contract, unjust enrichment, and fraud.
Safeway moved to compel arbitration, arguing the email notice and subsequent purchases by plaintiffs formed an enforceable arbitration agreement.
The primary legal question is whether the plaintiffs had sufficient notice and manifested assent to the arbitration agreement via Safeway’s email and their continued use of Safeway services.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Existence of arbitration agreement	No actual/constructive notice of email, so no assent	Plaintiffs received notice & kept shopping	No agreement; plaintiffs lacked notice and did not assent
Sufficiency of email to provide notice	Unaware of email; some never found it	Email delivered to accounts is sufficient	Email notice alone insufficient without actual/constructive notice
Effect of continued purchases after notice	Purchases do not equal acceptance without knowledge	Shopping after notice shows assent	No manifestation of assent absent notice
Applicability of browsewrap/clickwrap cases	Distinguishable; those cases require conspicuous notice	Similar context; email acts as notice	Browsewrap/clickwrap logic inapplicable to unknown emails

Knutson v. Sirius XM Radio Inc., 771 F.3d 559 (9th Cir. 2014) (Court determines existence of arbitration agreement, not arbitrator)
Oberstein v. Live Nation Ent., Inc., 60 F.4th 505 (9th Cir. 2023) (Notice must be reasonably conspicuous for consumers to be bound to terms)
Jackson v. Amazon.com, Inc., 65 F.4th 1093 (9th Cir. 2023) (Receipt of email with updated terms is necessary for consumer contract formation)