UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________________ ) FOOD & WATER WATCH, INC. et al., ) ) Plaintiffs, ) ) v. ) Case No. 19-cv-2811 (APM) ) TYSON FOODS, INC., ) ) Defendant. ) _________________________________________ )

MEMORANDUM OPINION

Plaintiffs Food & Water Watch, Inc. and Organic Consumers Association originally

brought this action in D.C. Superior Court for declaratory and injunctive relief under the

D.C. Consumer Protection Procedures Act, claiming that Defendant Tyson Foods, Inc. misleads

consumers in its marketing. See generally, Compl., ECF No. 1-2 [hereinafter Compl.]. Defendant

removed the case to this court, asserting original jurisdiction under

, which confers

federal jurisdiction on “all civil actions where the amount in controversy exceeds the sum or value

of $75,000, and the parties are from different states.” See Def.’s Not. of Removal, ECF No. 1, at

2–3 (citing

(a)). Plaintiffs now move to remand the case back to Superior Court,

claiming that this court lacks jurisdiction because the amount in controversy does not exceed

$75,000. Plaintiffs also seek fees and costs. For the reasons set forth below, the court grants

Plaintiffs’ motion to remand and denies its motion for fees and costs.

I.

Plaintiffs Food & Water Watch, Inc. (“FWW”) and Organic Consumers Association

(“OCA”) are two non-profit public-interest organizations. Compl. ¶ 1. FWW aims to “champion[] healthy food and clean water for all,” “promot[e] the interest and rights of [ ] consumers,” and

“increase transparency about how factory farms operate.”

. OCA “deals with crucial

issues of truth in advertising, accurate food labeling, food safety, children’s health, corporate

accountability, and environmental sustainability.”

. Plaintiffs’ Complaint alleges that

Defendant Tyson Foods, Inc., which produces chicken products, “makes marketing and advertising

representations to convey to consumers that the Tyson brand chicken products [ ] are produced in

an environmentally responsible way,”

, when in fact, according to the Complaint, “Tyson

and its contractors systematically breed, hatch, raise, transport, and slaughter chickens in

environmentally harmful and inhumane, disease-ridden factory-farm conditions,”

.

Plaintiffs claim that statements made on Defendant’s website, marketing materials, and in two

promotional videos,

¶¶ 17–45, violate the D.C. Consumer Protection Procedures Act,

, et seq. (“CPPA”), which “establishes an enforceable right to truthful

information from merchants about consumer goods and services that are or would be purchased,

leased, or received in the District of Columbia,” Compl. ¶ 10 (quoting

(c)).

Plaintiffs bring this action on behalf of themselves, their members, and the general public,

, and they seek declaratory and injunctive relief, including “requiring corrective

advertising,”

.

On September 18, 2019, Defendant removed the case to federal court. Def.’s Not. of

Removal, ECF No. 1 [hereinafter Removal Not]. In its Notice of Removal, Defendant invoked

diversity jurisdiction under

(a) as the sole basis of federal jurisdiction.

at 2–

3. According to Defendant, the parties are diverse and the amount in controversy exceeds $75,000,

because the cost to Defendant of complying with Plaintiffs’ sought-after remedy—corrective

advertising—“far exceeds $75,000.”

at 3–4. In support of its motion, Defendant submitted the

2 declaration of Christopher Miles, the Vice President of Marketing Communications and Design at

Tyson Foods, Inc. See Decl. of Christopher Miles, ECF No. 1-3 [hereinafter Miles Decl.], at ¶ 1.

Miles states that “the requested corrective advertising campaign would require Tyson Foods to

replace content on Tyson Foods’ website, social media accounts, and in other non-traditional and

traditional advertising channels,” and estimates that implementing these changes would “exceed[]

$400,000.”

¶¶ 3–4.

Plaintiffs now move to remand the case back to Superior Court, arguing that Defendant

“cannot demonstrate that the amount-in-controversy requirement for diversity jurisdiction is

satisfied.” See Mem. of P. and A. in Supp. of Pls.’ Mot. to Remand, and for Fees and Costs,

ECF No. 7-1 [hereinafter Pls.’ Mot.], at 3. In Plaintiffs’ view, Defendant cannot rely on the total

cost of compliance with Plaintiffs’ requested injunction to meet the amount-in-controversy

threshold, because doing so would violate the non-aggregation principle set forth by the Supreme

Court and run counter to the vast weight of case law in this District.

at 4–5. Plaintiffs argue

that, in assessing the amount-in-controversy requirement, the court instead must divide the cost of

compliance among its intended beneficiaries—here, District of Columbia consumers—and thus

the estimated $400,000 total cost to Defendant falls far short of the $75,000 threshold.

.

II.

“Only state-court actions that originally could have been filed in federal court may be

removed to federal court by the defendant.” Caterpillar Inc. v. Williams,

(1987);

see also

(a). Removal is effective when the defendant files a notice of removal

in federal court with “a short and plain statement of the grounds for removal, together with a copy

of all process, pleadings, and orders” from state court.

(a). However, “[i]f at any

time before final judgment it appears that the district court lacks subject matter jurisdiction, the

3 case shall be remanded.”

§ 1447(c). A party may challenge the federal court’s subject matter

jurisdiction on a motion to remand to state court. Id.

“[T]he party opposing a motion to remand bears the burden of establishing that subject

matter jurisdiction exists in federal court.” RWN Dev. Grp., LLC v. Travelers Indem. Co.,

(D.D.C. 2008) (quoting Int’l Union of Bricklayers & Allied Craftworkers

v. Ins. Co. of the West,

(D.D.C. 2005)). “Because federal courts are courts

of limited jurisdiction, the removal statute is to be strictly construed.” Kopff v. World Research

Grp., LLC,

(D.D.C. 2003). Accordingly, in instances “[w]here the need to

remand is not self-evident, the court must resolve any ambiguities concerning the propriety of

removal in favor of remand.” Johnson-Brown v. 2200 M St. LLC,

(D.D.C. 2003) (citing Univ. of S. Ala. v. Am. Tobacco Co.,

(11th Cir. 1999));

Nwachukwu v. Karl,

(D.D.C. 2002)).

III.

With these principles in mind, the court turns to the question at hand: Has Defendant

carried its burden of establishing that the amount in controversy exceeds $75,000? When, as here,

the party seeking remand contests the removing party’s amount-in-controversy allegation, removal

is proper “if the district court finds, by the preponderance of the evidence, that the amount in

controversy exceeds the jurisdictional threshold.” Dart Cherokee Basin Operating Co. v. Owens,

, 88 (2014) (internal quotation marks omitted) (quoting

(c)(2)(B)).

The parties disagree on how to value the amount in controversy. Defendant contends that

the D.C. Circuit has adopted the “either viewpoint” approach to calculating the amount in

controversy in cases where, like here, injunctive relief is sought. Def.’s Opp’n to Mot. to Remand,

ECF No. 13 [hereinafter Def.’s Opp’n], at 6. Under the either-viewpoint approach, this court may

4 consider either the value of the injunctive relief to plaintiff or the defendant’s potential cost of

complying. See Smith v. Washington,

(D.C. Cir. 1978). Plaintiffs, on the

other hand, argue that the court may not consider the defendant’s potential cost of complying

because doing so would violate the non-aggregation principle. Pls.’ Mot. at 4–6. That principle

states that “the separate and distinct claims of two or more plaintiffs cannot be aggregated in order

to satisfy the jurisdictional amount requirement.” Snyder v. Harris,

(1969);

see also Zahn v. Int’l Paper Co.,

(1973) (stating that “multiple plaintiffs with

separate and distinct claims must each satisfy the jurisdictional-amount requirement for suit in the

federal courts”).

Defendant is correct that the D.C. Circuit appears to have adopted the “either-viewpoint”

rule. 1 In Tatum v. Laird, the D.C. Circuit held that “the test for determining the amount in

controversy is the pecuniary result to either party which the judgment would directly produce.”

, 951 n.6 (D.C. Cir. 1971), rev’d on other grounds,

(1972) (quoting Ronzio

v. Denver & R. G. W. R. Co.,

(10th Cir. 1940)). The Tatum court remanded the

case to the district court because “the cost to the [defendant] of complying with [an injunction]

might well exceed” the jurisdictional threshold. Id. at 951. Since Tatum, the D.C. Circuit has

reiterated this holding, and the district courts of this circuit have repeatedly adopted the either-

viewpoint approach. See Smith,

(“In assessing whether a complaint satisfies that

standard, a court may look either to the value of the right that plaintiff seeks to enforce or to protect

or to the cost to the defendants to remedy the alleged denial.”) (quotation marks and footnote

1 The court writes “appears to have” because the D.C. Circuit has recognized a “possible conflict” between the non- aggregation principle and “the rule which allows the jurisdictional amount to be based on the cost to the defendant of proposed relief.” Fenster v. Schneider,

, 767 n.1 (D.C. Cir. 1980). The Circuit has not, however, “attempt[ed] to resolve” this possible conflict. Id.; see also Animal Legal Def. Fund,

(D.D.C. 2017) (citing Fenster).

5 omitted); Breathe DC v. Santa Fe Nat. Tobacco Co.,

(D.D.C. 2017);

Witte v. Gen. Nutrition Corp.,

, 4–5 (D.D.C. 2015); Geo Specialty Chems., Inc.

v. Husisian,

, 39–40 (D.D.C. 2013).

That the either-viewpoint approach governs does not, however, resolve the ultimate issue

of how to value the amount in controversy in this case. The question remains whether the court

should rely on Defendant’s estimated full cost of compliance, or some lesser amount, as Plaintiffs

urge, based on the non-aggregation principle. Defendant asks this court to use the entire,

aggregated estimated cost of compliance, and not divide that sum among individual consumers,

for three principal reasons: (1) “the benefit of any injunction would flow only to” Plaintiffs rather

than the general public, Def.’s Opp’n at 7–8; (2) complying with the injunction would cost

Defendant the same amount regardless of whether it were granted for just one consumer or every

consumer, id. at 9; and (3) Plaintiffs bring an integrated claim in which they have a common and

undivided interest, id. at 10–11. None of these arguments is persuasive.

A.

Defendant argues that Plaintiffs, rather than District of Columbia consumers generally, are

the “intended beneficiaries of the claimed injunction,” because “the requested injunctive relief is

expressly alleged to benefit FWW and OCA, not consumers.” Id. at 7, 8. Defendant points out

that Plaintiffs are not requesting a change to the labeling of Defendant’s products, and the “only

harm articulated in the Complaint . . . is a supposed ‘decrease in effectiveness’ of [Plaintiffs’]

communications intended to promote their own policy objectives.” Id. at 8 (quoting Compl.

¶¶ 162, 168).

This argument is meritless. Plaintiffs plainly seek relief for more than just themselves.

Plaintiffs invoke

(k)(1)(C), which states that “[a] nonprofit organization may,

6 on behalf of itself or any of its members, or on any such behalf and on behalf of the general public,

bring an action,” and

(k)(1)(D)(i), which entitles a public interest

organization to, “on behalf of the interests of a consumer or a class of consumers, bring an action

seeking relief from the use by any person of a trade practice in violation of a law of the District.”

Compl. ¶¶ 11–12. Plaintiffs expressly state that, under these statutes, they bring their claims “in

their individual and representative capacities, on their own behalves, on behalf of their members,

and on behalf of consumers and the general public.”

(emphasis added). Beyond invoking

these consumer protection statutes, the Complaint alleges injury to the general public from

Defendant’s alleged deceptive practices. For example, the Complaint alleges that “consumers are

willing to pay more for environmentally responsible poultry products and/or products from

animals raised humanely,” and that Defendant “is aware that these representations are material to

consumers.”

. The Complaint further avers that Defendant “advertised and

marketed [its products] with terms such as ‘environmental stewardship,’ ‘sustainability,’

‘protecting and respecting natural resources,’ ‘committed to compliance with environment laws,’

and ‘safe for the environment,’—when, in fact, [Defendant] is [the] second largest polluter in the

United States and routinely emits hazardous pollutants in violation of environmental laws.”

. And, the Complaint asserts that Defendant “advertised and marketed the [p]roducts as a

humane choice, from chickens who had been given ‘the highest quality of life,’ free from pain,

injury, disease, discomfort, fear, distress, hunger, or thirst,” when, “in fact, the chicken products

come from chickens who are raised, handled, transported and slaughtered through routinely

abusive and inhumane conditions and practices.”

. As relief, Plaintiffs seek “corrective

advertising,”

, a remedy that by its very nature would benefit not only their members but

the general public. These allegations plausibly establish that consumers in the District of Columbia

7 in general, not just Plaintiffs and their members, have been misled by Defendant’s marketing and

would benefit from the requested injunction. “At most there may be ambiguity on this issue, but

any such ambiguity must be resolved in favor of remand.” Animal Legal Def. Fund v. Hormel

Foods Corp.,

(D.D.C. 2017) (remanding CPPA case where the plaintiff

alleged that the defendant misled consumers with a marketing campaign, and the cost of the

plaintiffs’ injunction, which sought corrective advertisements as well as new packaging, was

properly divided pro rata among the general public).

B.

Defendant’s next two arguments, which the court takes together, are equally unpersuasive.

Defendant maintains that because complying with the injunction would still cost Defendant the

same amount regardless of whether the injunction were granted for just one consumer or every

consumer, aggregation is appropriate. Def.’s Opp’n at 8–10. It cites a number of out-of-circuit

cases to support its proposition.

at 9 (citing, e.g., Synfuel Techs., Inc. v. DHL Express (USA),

Inc.,

, 652 (7th Cir. 2006)). But courts in this jurisdiction have repeatedly rejected

this argument, and with good reason. See, e.g., Organic Consumers Ass’n v. R.C. Bigelow, Inc.,

(D.D.C. 2018); Inst. for Truth in Mktg. v. Total Health Network Corp.,

(D.D.C. 2018); Animal Legal Def. Fund, 249 F. Supp. 3d at 60–61. The

argument “that this Court should consider [a defendant’s] total compliance costs in calculating the

amount in controversy . . . would circumvent the non-aggregation principle articulated” by the

Supreme Court in Snyder v. Harris and Zahn v. International Paper Company. Witte,

; see also Fahey v. Godiva Chocolatier, Inc., No. 19-2128 (JDB),

, at *3

(D.D.C. Feb. 18, 2020) (“Courts in this Circuit have consistently applied [the non-aggregation]

principle when a plaintiff seeks injunctive relief under the CPPA on behalf of the public.”);

8 Smith v. Abbott Labs., No. 16-501 (RJL),

, at *2 (D.D.C. Mar. 31, 2017)

(observing that “the overwhelming weight of authority within th[is] District indicates that

defendants seeking to remove [CPPA] actions cannot rely on the total cost of compliance with the

plaintiff's requested injunction to establish the amount-in-controversy, as that would violate the

non-aggregation principle set forth by the Supreme Court”); Breakman v. AOL LLC,

, 103–05 (D.D.C. 2008) (holding that the non-aggregation principle applies when calculating

the amount in controversy in representative suits).

As explained, the non-aggregation principle states that “the separate and distinct claims of

two or more plaintiffs cannot be aggregated in order to satisfy the jurisdictional amount

requirement.” Snyder,

. The Court in Snyder explained that this doctrine is based

“upon th[e] Court’s interpretation of the statutory phrase ‘matter in controversy,’” which has been

interpreted to preclude aggregation in cases involving joinder of parties and in class actions.

at 336–37. “[A]llow[ing] aggregation of practically any claims of any parties that for any reason

happen to be brought together in a single action . . . . would seriously undercut the purpose of the

jurisdictional amount requirement,”—“check[ing], to some degree, the rising caseload of the

federal courts, especially with regard to the federal courts’ diversity of citizenship jurisdiction.”

. Accordingly, the only exception to the non-aggregation principle is “in cases in which

two or more plaintiffs unite to enforce a single title or right in which they have a common and

undivided interest.”

. That is, where “individual members of the class could not as a

matter of law bring suit other than in a representative capacity.” Nat’l Org. for Women v. Mut. of

Omaha Ins. Co.,

(D.D.C. 1985) (citation omitted); see also Troy Bank of

Troy, Ind., v. G.A. Whitehead & Co.,

(1911) (“[P]laintiffs have a common and

undivided interest, [ ] which neither can enforce in the absence of the other.”).

9 The “key question” before this court, then, “is not whether an injunction would cost

Defendant more or less depending on the number of beneficiaries,” but rather “whether Plaintiff[s]

and the members of the general public have separate and distinct claims that could be brought

independently against Defendant with respect to the challenged conduct.” Animal Legal Def.

Fund, 249 F. Supp. 3d at 61–62. In this representative suit, Plaintiffs and the consumers on whose

behalf they bring suit have separate and distinct claims. This is not a case where none of the

plaintiffs could enforce the right at issue in the absence of the others. Rather, any individual who

watched Defendant’s marketing videos could bring a CPPA suit on the same grounds advanced by

Plaintiffs here. Nor is this a case where the plaintiffs seek disgorgement of the defendant’s profits,

which would be considered an integrated claim because, “[r]ather than redress an individual

plaintiff’s specific injury, disgorgement claims seek to hold defendants generally liable for a

refund of all moneys acquired as a result of their illegal activities.” Zuckman v. Monster Beverage

Corp.,

(D.D.C. 2013) (internal quotation marks and citation omitted).

Plaintiffs here seek only injunctive relief, the benefit of which would flow to each individual

consumer.

Defendant attempts to frame the injunction as an end to a “general practice” that ought to

constitute a common and undivided interest of the class as a whole. Def.’s Opp’n at 11–12. But

that argument cannot avoid the non-aggregation principle as it has been applied in this District.

In Breakman v. AOL LLC, for instance, the plaintiffs sought under the CPPA both damages and

injunctive relief related to AOL’s pricing policy—in other words, a change to AOL’s “general

practice” of pricing.

. Nonetheless, the court held that the cost of the

injunction must be divided pro rata among District of Columbia consumers.

at 105–06. To

permit aggregation in such circumstances “would allow a plaintiff who has no claim for the

10 requisite compensatory damages merely to request injunctive relief, assign to that request a value

measured in terms of defendant’s compliance, and then litigate in the federal courts.”

at 105

(quoting Nat’l Org. for Women,

(D.D.C. 1985)). Such an outcome would “be

contrary to the longstanding directive that federal jurisdiction should be strictly interpreted.”

Accordingly, consistent with the decisions of courts in this District, the court finds that for

purposes of calculating the amount in controversy, the cost of the injunction to Defendant must be

divided pro rata among the members of the general public of the District of Columbia.

Having so determined, Defendant’s showing with respect to the amount in controversy

necessarily fails. In support of removal, Defendant provided the declaration of its Vice President

of Marketing Communications and Design, who avers that Defendant’s cost of compliance would

total approximately $400,000. Miles Decl. ¶¶ 3–4. Although this total estimated cost far exceeds

the $75,000 minimum, Defendant has made no effort to demonstrate—nor could it credibly—that

the cost of the injunction divided pro rata among the members of the general public of Washington,

D.C. would exceed the jurisdictional threshold.

IV.

Finally, the court turns to the question of fees and costs. Plaintiffs request reimbursement

of fees and costs incurred as a result of the remand litigation. Pls.’ Mot. at 9–10. The Supreme

Court has held that “the standard for awarding fees should turn on the reasonableness of the

removal. Absent unusual circumstances, courts may award attorney’s fees under § 1447(c) only

where the removing party lacked an objectively reasonable basis for seeking removal.” Martin v.

Franklin Capital Corp.,

(2005). Here, though the decisions of the district courts

in this jurisdiction overwhelmingly favored Plaintiffs’ position, there is no recent, controlling

authority from the D.C. Circuit as to the interplay between the “non-aggregation” and “either-

11 viewpoint” doctrines. Thus, the court cannot say that Defendant lacked an objectively reasonable

and good-faith basis for attempting removal. The court therefore declines to award Plaintiffs any

fees and costs associated with the remand litigation.

V.

For the foregoing reasons, the court finds that it lacks subject matter jurisdiction over this

matter. Plaintiffs’ Motion to Remand, ECF No. 7, is granted, and its motion for fees and costs is

denied. The court also denies as moot Defendant’s Motion for Oral Argument, ECF No. 15.

A separate Order accompanies this Memorandum Opinion.

Dated: March 5, 2020 Amit P. Mehta United States District Judge

12