Antitrust Law Daily Wrap Up, ADVERTISING—N.D. Cal.: Lawsuit alleging Safeway deceived on temporary status of discounts will proceed, (Aug 7, 2026)

By Steven Melendez

A California federal judge dismissed only unjust enrichment claims and certain requests for equitable relief, denying Safeway’s motion to dismiss other claims.

A federal district court judge declined to dismiss a putative class action brought by consumers claiming that Safeway, Inc., deceived shoppers by advertising Rewards members wine discounts as having a “thru” date despite the discounts lasting indefinitely, finding they were sufficiently pleaded to meet Rule 9(b) requirements. The court dismissed unjust enrichment claims and certain claims for equitable relief where the consumers did not oppose dismissal, setting a case management conference for September and indicating consumers should include in a joint case management statement how they intend to pursue class certification (Tempest v. Safeway, Inc., No. 3:24-cv-06553-JSC (N.D. Cal. Aug. 4, 2026)).

Background. The consumers in the case alleged that on store shelves below individual bottles of wine, Safeway includes a non-sale price “stuck or fastened to the shelf (the reference price) above a temporary shelf flyer that includes a purported time-limited sale price for Rewards members on an individual bottle of wine ‘Thru’ a certain date (the discount price).”

But, they alleged, Safeway actually extends the discounts at their “Thru” dates. The practice is deceptive, they argued, because consumers are more likely to buy the wine—and buy more of it—if they believe the product is on sale. Several named plaintiff consumers allege that they saw the pricing stickers in Safeway stores in California, Oregon, or the District of Columbia based on the stickers.

They sued Safeway in September 2024. After Safeway moved to dismiss the initial complaint, they filed two amended complaints. The court granted Safeway’s motion to dismiss the Second Amended Complaint, finding the claims were not pled to the heightened standards for allegations of fraudulent conduct required by Federal Rule of Civil Procedure 9(b). The current Third Amended Complaint, filed on behalf of a putative nationwide class and California, Oregon, and D.C. subclasses, alleges violations of California’s False Advertising Law, Unfair Competition Law, and Consumer Legal Remedies Act; Oregon’s Unlawful Trade Practices Act (OUTPA); the District of Columbia’s Consumer Protection Procedures Act; and unjust enrichment.

Safeway moved to dismiss the Third Amended Complaint as well.

Reasonable consumer test. The claims are governed by a “reasonable consumer” standard, where the consumers must allege “members of the public are likely to be deceived,” according to the ruling. The consumers argued that the price labels misrepresent the price as only available for a period of time, after which members will have to pay the full price. Safeway argued reasonable consumers would not interpret the pricing that way, because the tags say nothing about what happens after the “Thru” date.

The court found that “drawing inferences in Plaintiffs’ favor, a reasonable consumer could interpret the statement a sale exists through a particular date means the sale will not continue past that date.” Cases cited by Safeway involving sale prices and reference prices, in which courts found that consumers had not adequately alleged stores never sold at those prices or that the prices did not reflect prevailing market prices, differed in that they alleged the reference price itself, rather than a “Thru” date, were misleading, according to the ruling.

Rule 9(b). To determine whether a claim “sounding in fraud” meets the Rule 9(b) standard, a court considers whether the complaint properly alleges “the who, what, when, where, and how of the misconduct charged, as well as what is false or misleading about the purportedly fraudulent statement, and why it is false.”

The court had previously held the Second Amended Complaint lacked sufficient detail about what wine was purchased when and where, what price labels said, and how consumers relied upon them. Now, the named plaintiff consumers each allege an approximate purchase date, which wine they purchased, and the listed prices.

Their descriptions of Safeway store locations in Marin County, California; Washington, D.C.; and Oregon match “where” descriptions deemed sufficient by the Ninth Circuit, the court found. And allegations that tags alleged a member price would last “Thru” a certain date are sufficient to meet the “what” element, according to the ruling.

Safeway argued that one consumer failed to specifically allege “when” she purchased the wine, in referring only to spring of 2024. But the court found the grocer cited no case where a court found that a season, rather than a specific date, is insufficient detail. Ultimately, Safeway did not argue it did not receive “notice of the particular misconduct” or that it cannot adequately defend against the allegations, the court found, declining to dismiss the complaint under Rule 9(b).

Oregon state law claim. Safeway argued that the alleged conduct does not violate the Oregon Unlawful Trade Practices Act (OUTPA).

The company argued “Member and non-Member prices are not a former price comparison,” so sections of the law referring to misleading representations around price reductions or offering prices do not apply. Safeway argued it accurately described price discounts being available on the basis of membership.

But, the court found, while that inference can be drawn, another plausible inference is that members will need to pay the full, non-member price after the “Thru” date. The consumers have therefore plausibly alleged violation of the Oregon law, according to the ruling, declining to dismiss that claim.

Equitable jurisdiction. Federal courts must have equitable jurisdiction to hear an equitable claim, and this only exists when plaintiffs have no adequate legal remedy based around the same harm.

Safeway moved to dismiss claims for equitable relief. The consumers noted that only one named plaintiff is seeking equitable relief, and only injunctive relief under California law. As a result, the court dismissed other claims for equitable relief. The consumer asked for an injunction barring continuing misleading statements by Safeway, arguing he would not have purchased the wine if he had not believed he was receiving a time-limited discount but would buy member-priced wine in the future if he could trust prices were actually time-limited discounts.

The court found that the consumer alleged facts that allow a reasonable inference that damages would not remedy potential future harm, making legal remedies inadequate. Cases pointed to by Safeway differed in that plaintiffs failed to allege legal remedies were insufficient, the court found, allowing the California injunctive relief claims to proceed.

Unjust enrichment. Safeway moved to dismiss unjust enrichment claims saying they do not plausibly allege voidability of a contract. The consumers did not oppose dismissing those claims, and the court granted Safeway’s motion to dismiss.

The dismissed equitable and unjust enrichment claims were dismissed with prejudice and without leave to amend, based on the fact that consumers did not oppose their dismissal and had already had three opportunities to amend their complaint.

The court set a case management conference for September 9, 2026, with a joint case management statement due a week earlier, including a statement of how the consumers aim to obtain class certification.

The Case is No. 3:24-cv-06553-JSC.

Judge: Corley, J.

Attorneys: Joel Dashiell Smith (Smith Krivoshey, PC) for Michael Tempest. Christopher Edward Stretch (Ballard Spahr LLP) for Safeway, Inc.

Companies: Safeway, Inc.

Cases: Advertising StateUnfairTradePractices CaliforniaNews