Joanna Cheng, individually and on behalf of all others similarly situated v. Nordstrom, Inc.

• Court: District Court, N.D. California
• Decided: June 22, 2026
• Docket: 3:26-cv-02431
• Status: Unknown

Opinion

1 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP P. CRAIG CARDON, Cal Bar No. 168646 2 JAY T. RAMSEY, Cal Bar No. 273160 KEVIN MURPHY, Cal Bar No. 346041 3 1901 Avenue of the Stars, 16th Floor Los Angeles, California 90067-6055 4 Telephone: 310.228.3700 Facsimile: 310.228.3701 5 Email: ccardon@sheppard.com jramsey@sheppard.com 6 kemurphy@sheppard.com

7 Attorneys for Defendant NORDSTROM, INC. 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO DIVISION 10

11 JOANNA CHENG, individually and on behalf Case No. 3:26-cv-02431-CRB 12 of all others similarly situated, Hon. Charles R. Breyer 13 Plaintiff, JOINT STIPULATION GRANTING 14 v. DEFENDANT NORDSTROM, INC. LEAVE TO FILE RESPONSE TO 15 NORDSTROM, INC., PLAINTIFF’S SURREPLY IN OPPOSITION TO DEFENDANT’S 16 Defendant. MOTION TO COMPEL ARBITRATION ORDER 17 [Filed concurrently with [Proposed] Order and [Proposed] Response to Plaintiff’s 18 Surreply]

20 21 22 23 24 25 26 27 1 Pursuant to Local Rules 7-3(d) and 7-12, Plaintiff Joanna Cheng (“Plaintiff”) and 2 Defendant Nordstrom, Inc. (“Defendant”), through their counsel, stipulate and agree as follows: 3 WHEREAS, on May 14, 2026, Defendant filed its Motion to Compel Arbitration 4 (“Motion”) (ECF No. 14); 5 WHEREAS, on May 28, 2026, Plaintiff filed her Opposition to the Motion (ECF No. 15); 6 WHEREAS, on June 4, 2026, Defendant filed its Reply in support of the Motion (ECF No. 7 16); 8 WHEREAS, on June 12, 2026, Plaintiff filed her Objection to Evidence Submitted in 9 support of Defendant’s Reply (ECF No. 19); 10 WHEREAS, on June 15, 2026, Plaintiff filed her Administrative Motion for Leave to File 11 a Surreply (“Administrative Motion”) (ECF No. 21); 12 WHEREAS, on June 16, 2026, the Court granted the Administrative Motion and deemed 13 the Surreply filed; 14 WHEREAS, on June 17, 2026, the parties met and conferred and agreed to stipulate to 15 Defendant filing a response to Plaintiff’s Surreply; 16 WHEREAS, Defendant’s [Proposed] Response to Plaintiff’s Surreply (“Response”) is 17 attached hereto as Exhibit A; 18 NOW, THEREFORE, the parties hereby request that the Court enter an order granting 19 Defendant leave to file the Response and deem the Response, attached hereto as Exhibit A, filed as 20 of the date of the Court’s Order. 21 22 IT IS SO STIPULATED. 23 24 25 26 27 1 Dated: June 18, 2026 2 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP

4 By /s/ Craig Cardon P. CRAIG CARDON 5 JAY T. RAMSEY 6 KEVIN MURPHY

7 Attorneys for Defendant NORDSTROM, INC. 8

9 Dated: June 18, 2026 10 JAVITCH LAW OFFICE 11

12 By /s/ Mark Javitch 13 MARK JAVITCH

14 Attorneys for Plaintiff JOANNA CHENG 15

17 SIGNATURE ATTESTATION 18 I hereby attest that all signatories listed above, on whose behalf this stipulation is 19 submitted, concur in the filing’s content and have authorized the filing. 20 Dated: June 18, 2026 21 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP

23 By /s/ Craig Cardon P. CRAIG CARDON 24

25 26 27 EXHIBIT A 1 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP P. CRAIG CARDON, Cal Bar No. 168646 2 JAY T. RAMSEY, Cal Bar No. 273160 KEVIN MURPHY, Cal Bar No. 346041 3 1901 Avenue of the Stars, 16th Floor Los Angeles, California 90067-6055 4 Telephone: 310.228.3700 Facsimile: 310.228.3701 5 Email: ccardon@sheppard.com jramsey@sheppard.com 6 kemurphy@sheppard.com

7 Attorneys for Defendant NORDSTROM, INC. 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO DIVISION 10

11 JOANNA CHENG, individually and on behalf Case No. 3:26-cv-02431-CRB 12 of all others similarly situated, Hon. Charles R. Breyer 13 Plaintiff, DEFENDANT NORDSTROM, INC.’S 14 v. [PROPOSED] RESPONSE TO PLAINTIFF’S SURREPLY IN 15 NORDSTROM, INC., OPPOSITION TO DEFENDANT’S MOTION TO COMPEL ARBITRATION 16 Defendant. Hearing 17 Date: August 28, 2026 Time: 10:00 a.m. 18 Location: Video Conference (Zoom)

20 21 22 23 24 25 26 27 1 I. THE COURT MAY CONSIDER THE DECLARATION OF THOMAS SAVAGE 2 SUBMITTED WITH NORDSTROM’S REPLY BRIEF 3 In her Surreply in Opposition to Defendant’s Motion to Compel Arbitration (“Surreply”) 4 and her Objection to Evidence Submitted in Support of Defendant’s Reply (“Obj.”), Cheng argues 5 that the Declaration of Thomas Savage (“Reply Decl.”) submitted with Nordstrom’s Reply “should 6 be disregarded” for three reasons. Surreply at 3; Obj. at 1-4. All of Cheng’s arguments lack merit. 7 First, Cheng argues that Nordstrom cannot submit new evidence on Reply. Obj. at 2-3. On 8 a motion to compel arbitration, courts apply a “summary judgment standard.” Hansen v. LMB 9 Mortg. Servs., Inc., 1 F.4th 667, 670 (9th Cir. 2021). With its Motion, Nordstrom submitted 10 evidence that Cheng agreed to arbitrate her claims each time she placed an order on the App 11 purchase page. Lefebvre Decl. ¶ 6; Savage Decl. ¶ 7. In the Opposition, Cheng attempted to create 12 a genuine dispute of material fact as to her January 20, 2026 order by submitting a screenshot of the 13 App purchase page that she contends differs from the version Nordstrom provided in the Motion.1 14 Opp. at 6-7; Cheng Decl., Ex. 1. But Cheng’s screenshot was inaccurate: it omitted the hyperlink 15 to the Terms located directly below the advisory language. Reply Decl. ¶¶ 2-3. Nordstrom’s Reply 16 corrected that inaccuracy by providing the full version of the screenshot, which included the 17 hyperlink to the Terms. Id. 18 Cheng argues that was improper. Surreply at 3; Obj. at 2-3. But the law supports Nordstrom. 19 While the “general rule is that courts do not consider arguments or evidence raised for the first time 20 on reply . . . courts permit summary judgment movants to submit new evidence to rebut arguments 21 [or] evidence raised for the first time in the nonmoving party’s opposition.” Brooks v. USAA Fed. 22 Sav. Bank, 2019 WL 7188576, at *6 (C.D. Cal. Jan. 10, 2019). Indeed, courts do not even consider 23 evidence submitted with a reply to be “new” when the evidence “provides the full context” of the 24 25 1 For the remaining orders, Cheng did not attempt to raise a factual dispute because she did not 26 contest the accuracy of the App purchase page that applied to those orders. Reply at 5-6. Instead, she argued that, as a matter of law, Nordstrom had not met its burden because the App purchase 27 page did not provide reasonably conspicuous notice of the Terms and a user does not manifest assent to the Terms when placing an order. Opp. at 9-10, 12; Reply at 7-8. 1 plaintiff’s “selected recitation of the facts.” Terrell v. Contra Costa Cnty., 232 F. App’x 626, 628 2 n.2 (9th Cir. 2007). 3 This is precisely what Nordstrom did in submitting the Reply Declaration: it provided the 4 “full context” of the version of the App purchase page that Cheng submitted. See Terrell, 232 F. 5 App’x at 628 n.2. Thus, the Court may consider the Reply Declaration. See Wassmund v. Red Bull 6 N. Am., Inc., 2025 WL 882214, at *2 n.3 (C.D. Cal. Feb. 3, 2025) (holding on a motion to compel 7 arbitration that the defendant’s “supplemental declaration” submitted with its reply brief was not 8 “new” evidence because “the evidence was submitted in direct response to Plaintiff’s evidence and 9 arguments”). 10 Second, Cheng argues that the Reply Declaration is entitled to no weight because it is a 11 “reconstruction” of the App purchase page and “not a record of her transaction.” Surreply at 2; Obj. 12 at 3. But as explained in the Reply, providing a screenshot that is “substantially identical to what 13 [Cheng] would have experienced” is sufficient. Singh v. Adobe Inc., 797 F. Supp. 3d 1038, 1045- 14 46 (N.D. Cal. 2025). That is what Nordstrom did. The differences between the two screenshots 15 that she identifies—such as the estimated order total and savings—are immaterial and do not change 16 the fact that the App purchase page is substantially identical to what she would have seen. Cheng’s 17 argument is particularly dubious given that she did not provide a screenshot of her particular 18 transaction. Rather, she too provided a “reconstruction.” Obj. at 3. She took a screenshot of the 19 App purchase page on May 28, 2026, over four months after her January 20, 2026 purchase. And 20 her screenshot differs from what she alleges about her January 20, 2026 purchase—the screenshot 21 shows an estimated order total of $20.75 and savings of $23.03 when she alleges that her January 22 20, 2026 order had an estimated order total of $20.87 and savings of $21.13 (Compl. ¶ 27). 23 Third, Cheng argues that the Reply Declaration should be disregarded because Savage 24 “lacks personal knowledge” regarding what her screen displayed on May 28, 2026. Surreply at 2; 25 Obj. at 3-4. Savage is a Senior Systems Analyst who has been employed by Nordstrom for over 20 26 years. Reply Decl. ¶ 1. In his role, he has “first-hand knowledge” of “customer records,” and he 27 made his declaration based on his review of Nordstrom’s records and practices, including what the 1 of the App purchase page looked like when Cheng took her screenshot on May 28, 2026 and what 2 it would have looked like on January 20, 2026. 3 In sum, the Court should not disregard the Reply Declaration. 4 II. CHENG’S REMAINING ARGUMENTS WERE PRESENTED IN THE 5 OPPOSITION AND FAIL FOR THE REASONS STATED IN THE REPLY 6 In the Surreply, Cheng advances three additional arguments. Surreply at 2-3. She presented 7 these same arguments in her Opposition and so they fail for the reasons explained in Nordstrom’s 8 Reply. 9 First, she argues that she did not concede that users assent to the Arbitration Agreement 10 when signing in to their account because signing in “manifests an intent to use the account, not to 11 enter into a new agreement to arbitrate.” Surreply at 2 (quoting Opp. at 11). This argument fails 12 for the reasons explained in the Reply. Reply at 4-5. Cheng manifested assent when clicking the 13 “Next” or “Sign In” buttons. Cheng also states that she “swore that she ‘does not recall signing or 14 otherwise agreeing to any arbitration agreement.’” Surreply at 2 (quoting Cheng Decl. ¶ 6). This 15 is a misrepresentation of her declaration. She declared that she does “not recall signing or otherwise 16 agreeing to any arbitration agreement in connection with the two in-person purchases [she] made 17 at Nordstrom Rack retail stores” and her “Nordy Club membership.” Cheng Decl. ¶ 6 (emphasis 18 added). She never declares the same with respect to the account sign-in process. Id. ¶¶ 1-6. 19 Second, she argues that Nordstrom has not proven assent based on the account sign-in 20 process because “Nordstrom has never shown that its sign-in exemplars depict the App screens Ms. 21 Cheng saw.” Surreply at 2. Cheng advanced this same argument in the Opposition. Opp. at 1, 3- 22 4, 7-8, 10. This argument fails for the reasons explained in the Reply. Reply at 2-3. Nordstrom 23 provided the sign-in notices that Cheng encountered each time she signed in to her account. 24 Third, Cheng argues that she did not assent when placing an order because she used the 25 “Place Order” button in the top right-hand side of her screen rather than the blue “Place Order” 26 button at the bottom of her screen. Surreply at 3. Cheng made this exact argument in the Opposition 27 and it fails for the reasons explained in the Reply. Opp. at 6, 9; Reply at 8. A user would have seen 1 the notice language because their eyes would be drawn towards the “large blue ‘Place Order’ 2 button.” Reply at 8; Cheng Decl. ¶ 4. 3 III. CONCLUSION 4 For the reasons explained here and in the Motion and Reply, Nordstrom respectfully requests 5 that the Court grant the Motion and compel arbitration of Cheng’s claims. 6 Dated: June 18, 2026 7 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP

9 /s/ P. Craig Cardon P. CRAIG CARDON 10 JAY T. RAMSEY KEVIN MURPHY 11

Attorneys for Defendant 12 NORDSTROM, INC. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1

8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO DIVISION 10 JOANNA CHENG, individually and on behalf Case No. 3:26-cv-02431-CRB 11 of all others similarly situated, Hon. Charles R. Breyer 12 Plaintiff, [PROPOSED] ORDER GRANTING 13 v. DEFENDANT NORDSTROM, INC. LEAVE TO FILE RESPONSE TO 14 NORDSTROM, INC., PLAINTIFF’S SURREPLY IN OPPOSITION TO DEFENDANT’S 15 Defendant. MOTION TO COMPEL ARBITRATION

17 18 19 20 21 22 23 24 25 26 27 | [PROPOSEDY ORDER 2 Having reviewed the Joint Stipulation Granting Defendant Nordstrom, Inc. Leave to File 3 || Response to Plaintiff's Surreply in Opposition to Defendant’s Motion to Compel Arbitration 4 || (“Joint Stipulation’) and finding good cause, the Court hereby GRANTS the Joint Stipulation 5 |} and ORDERS that Defendant Nordstrom Inc.’s Response to Plaintiff's Surreply in Opposition to 6 || Defendant’s Motion to Compel Arbitration, attached as Exhibit A to the Joint Stipulation, is 7 || deemed filed as of the date of this order. 9 IT IS SO ORDERED. 10 1] DATED: _ 2026

13 14 Hon. Charles R. Breyer 15 UNITED STATES DISTRICT COURT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. 3:26-cv-02431