UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

EARTH ISLAND INSTITUTE,

Plaintiff, v. Civil Action No. 21-2659 (JEB)

BLUETRITON BRANDS,

Defendant.

MEMORANDUM OPINION

As first-year law students are well aware, suits brought in federal court under 28 U.S.C

§ 1332 must (1) involve parties from different states and (2) satisfy an amount-in-controversy

requirement of over $75,000. While those students no doubt spend many hours scrutinizing the

finer details of the first component, they likely commit far less attention to the ins and outs of the

second. Yet that amount in controversy is indeed the controversy covered in this Opinion.

Plaintiff Earth Island Institute initially brought this action in the Superior Court of the

District of Columbia against Defendant BlueTriton Brands, which owns well-known bottled-

water brands such as Poland Spring. Earth Island alleged violations of the District of Columbia

Consumer Protection Procedures Act, contending that the company’s representations about its

sustainability practices misled and deceived D.C. consumers. Asserting diversity jurisdiction,

BlueTriton removed the case to this Court. Plaintiff now moves to remand. As the Court agrees

with Earth Island that the amount in controversy does not exceed $75,000, it will grant the

Motion. It will deny, however, Plaintiff’s request for fees and costs.

1 I. Background

Taking the facts alleged in the Complaint as true, the Court begins with Earth Island,

which is a “public-interest organization whose mission is to advocate for environmental and

human health through activist projects, legal advocacy, leadership, and an award-winning

journal.” ECF No. 1-2 (Complaint), ¶ 28. Its Complaint alleges that BlueTriton, formerly

known as Nestle Waters North America, uses marketing that is “false and deceptive because the

company portrays itself as being sustainable and committed to reducing plastic pollution through

its recycling targets while falling short of those targets and continuing its environmentally

harmful practices.” Id., ¶ 43. In other words, Plaintiff alleges that Defendant’s “marketing and

advertising tend to mislead and are materially deceptive about the true nature and quality of its

products and business.” Id., ¶ 19.

Earth Island originally brought this action in Superior Court “on behalf of itself, its

members, and the general public of the District of Columbia” under the CPPA’s private-attorney-

general provision,

(k).

; see Toxin Free USA v. J.M. Smucker

Co.,

, 43–45 (D.D.C. 2020) (discussing such provision). Plaintiff’s Prayer for

Relief seeks the following:

A. a declaration that Blue Triton’s conduct is in violation of the CPPA; B. an order enjoining Blue Triton’s conduct found to be in violation of the CPPA; and C. an order granting Plaintiff costs and disbursements, including reasonable attorneys’ fees and expert fees, and prejudgment interest at the maximum rate allowable by law.

Compl. at 29.

On October 11, 2021, Defendant filed a Notice of Removal from Superior Court,

asserting diversity jurisdiction under

(a). See ECF No. 1 (Notice of Removal)

2 at 1. In support of its assertion that there is more than $75,000 in controversy, BlueTriton

submitted a declaration from Laetitia Allexant-DelRossi, its then-Marketing Director for Brand

Strategy & Storytelling, describing how the company would have to spend over $75,000 to

correct its marketing if found liable. See ECF No. 1-7 (Allexant-DelRossi Decl.) at 1–2; ECF

No. 9 (Def. Opp.) at 3–4. Shortly after the case was assigned to this Court, Plaintiff moved to

remand on the ground that subject-matter jurisdiction is lacking. See ECF No. 8-1 (Motion to

Remand).

II. Legal Standard

Federal courts are courts of limited subject-matter jurisdiction and “possess only that

power authorized by [the] Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of

Am.,

(1994). The issue of federal subject-matter jurisdiction “goes to the

foundation of the court’s power to resolve a case.” Doe by Fein v. District of Columbia,

(D.C. Cir. 1996) (citing Bender v. Williamsport Area School Dist.,

(1986)).

“Ordinarily, the plaintiff is entitled to select the forum in which he wishes to proceed.”

Araya v. JPMorgan Chase Bank, N.A.,

(D.C. Cir. 2014). A defendant may,

however, remove “any civil action brought in a State court of which the district courts of the

United States have original jurisdiction.”

(a). Removal is thus appropriate

when the case raises a cognizable question “arising under the Constitution, laws, or treaties of

the United States,”

, or when the case involves citizens of different states and

the amount in controversy exceeds $75,000.

§ 1332(a). “The removing party bears the

burden of showing that removal is proper.” Toxin Free USA, 507 F. Supp. 3d at 43. “If the

removing party fails to make such a showing, the court must remand the case.” Id. (citing

3 Animal Legal Def. Fund v. Hormel Foods Corp.,

(D.D.C. 2017)); see

Republic of Venezuela v. Philip Morris Inc.,

(D.C. Cir. 2002) (“When it

appears that a district court lacks subject matter jurisdiction over a case that has been removed

from a state court, the district court must remand the case.”).

III. Analysis

Plaintiff contends that remand is required because the Court does not have subject-matter

jurisdiction over this action. See Motion to Remand at 3–11. Earth Island also seeks to “recoup

its just costs and actual expenses, including attorneys’ fees, associated with returning this case to

the District of Columbia Superior Court, on the basis that BlueTriton lacked an objectively

reasonable basis for removal.” Id. at 11. The Court considers each issue in turn.

A. Diversity Jurisdiction

As referenced above, under

(a), district courts “have original

jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of

$75,000, exclusive of interest and costs, and is between . . . citizens of different States.” Here,

the parties agree that there is complete diversity of parties. See Def. Opp. at 4; ECF No. 10

(Reply) at 3. The lone jurisdictional issue for the Court to decide is thus whether the amount in

controversy is met. More specifically, the parties dispute how to calculate that amount, whether

it must be apportioned amongst all consumers in Washington, D.C., and how Earth Island’s

request for attorney fees affects the amount at issue.

Calculation of Amount

A threshold question is how a court should determine the amount in controversy where,

as here, only injunctive relief and no damages are sought. A number of courts in this district

have made clear that when “resolving similar motions to remand CPPA actions in which the only

4 relief sought was injunctive and declaratory relief and attorneys’ fees,” it is appropriate to

consider the total “cost [the defendant] would incur by complying with the requested injunctive

relief in [the] calculation of the amount in controversy.” Organic Consumers Ass’n v. R.C.

Bigelow, Inc.,

, 348–49 (D.D.C. 2018) (collecting cases). The Court will

assume, as Defendant urges it to, that this is an appropriate method for determining the overall

amount at issue here. See Def. Opp. at 4–5. The Court will similarly assume that,

notwithstanding Plaintiff’s objections, Defendant’s estimate of its cost to comply with the

desired injunctive relief — approximately $800,000, see Allexant-DelRossi Decl. at 2 — is

reasonable and nonspeculative. See Def. Opp. at 5–7; Motion to Remand at 7–9. The Court

makes those assumptions because, even drawing such inferences in favor of BlueTriton, the

amount-in-controversy requirement has nonetheless not been met here. That holding flows from

the Court’s conclusions in the next two sections.

Non-Aggregation

Plaintiff first contends that even if the total cost to Defendant of complying with the

sought-after injunctive relief would exceed $75,000, the amount-in-controversy requirement is

not satisfied here because that cost must be apportioned among all consumers in this city, on

behalf of whom Earth Island brings this challenge. The Court agrees.

The non-aggregation principle provides that “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).

“Although the D.C. Circuit has not spoken to the application of the non-aggregation principle to

[CPPA] suits such as this one, courts in this district routinely apply this rule when considering

the amount in controversy in cases that seek injunctive relief” under D.C. Code. § 28-3905(k)(1).

5 See Inst. for Truth in Mktg. v. Total Health Network Corp.,

(D.D.C.

2018). Indeed, “[c]ourts in this district have consistently held that defendants removing []CPPA

actions ‘cannot rely on the total cost of compliance with the plaintiff’s requested injunction to

establish the amount-in-controversy’ requirement of § 1332(a).” Toxin Free USA, 507 F. Supp.

3d at 45–46 (quoting Organic Consumers Ass’n,

). Rather, a chorus of

courts has consistently held over the past dozen years that “the cost of the injunction must be

divided pro rata among District of Columbia consumers.”

at 46 (quoting Food & Water

Watch, Inc. v. Tyson Foods, Inc., No. 19-2811,

, at *5 (D.D.C. Mar. 5, 2020));

see also, e.g., Pesticides v. Exxon Mobil Corp., No. 20-1815,

, at *2 (D.D.C.

Mar. 22, 2021); Hackman v. One Brands, LLC, No. 18-2101,

, at *5 (D.D.C.

Apr. 1, 2019); Inst. for Truth in Mktg.,

; Animal Legal Def. Fund, 249 F.

Supp. 3d at 59–60; Breathe DC v. Santa Fe Nat. Tobacco Co.,

, 170–71

(D.D.C. 2017); Organic Consumers Ass’n v. Handsome Brook Farm Grp. 2, LLC,

(D.D.C. 2016); Witte v. Gen. Nutrition Corp.,

(D.D.C. 2015);

Breakman v. AOL LLC,

, 103–05 (D.D.C. 2008).

Persuaded by the thoughtful opinions penned by its numerous colleagues who have

tackled this issue, the Court “concludes that the appropriate measure of the requested injunctive

relief is not the amount that [Defendant] must spend to comply with the injunction, but that

amount divided by the number of members of the public on whose behalf Plaintiff brings the

action.” Inst. for Truth in Mktg.,

. Applying that rubric, BlueTriton does

not even attempt to demonstrate that its cost of complying with Earth Island’s requested

injunctive relief would exceed $75,000 per D.C. consumer. See Reply at 2; Def. Opp. at 7–17.

Because “[t]he removing party bears the burden of showing that removal is proper,” that reality

6 is enough for the Court to conclude that Defendant has “not demonstrated ‘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.’” Toxin Free USA, 507 F. Supp. 3d at 43, 46 (quoting

Animal Legal Def. Fund, 249 F. Supp. 3d at 60–61). The Court therefore concludes that it does

not have subject-matter jurisdiction over this matter.

Resisting that conclusion and maintaining that every single one of the above opinions

was wrongly decided, BlueTriton urges this Court to chart a new path. The Court is unpersuaded

by each of the company’s three main arguments.

First, Defendant contends that “the non-aggregation principle does not apply here

because there is only one plaintiff in this lawsuit.” Def. Opp. at 9. Unfortunately for BlueTriton,

other courts in this district have persuasively debunked this precise argument. Indeed, in Breathe

DC, Judge Ellen Huvelle traced the origins of the non-aggregation rule before explaining that,

“[a]lthough the [Supreme] Court spoke in terms of ‘plaintiffs’ in Snyder and Zahn, the rationale

extends equally to actions brought by nonprofit groups where the beneficiaries need not be added

as parties to the lawsuit.”

. Relatedly, while Defendant makes much of

the fact that this suit was brought under

(k)(1)(D) — which permits an

action “on behalf of the interests of a consumer or a class of consumers,” as opposed to “on

behalf of the general public,”

(k)(1)(C) — it offers no compelling reason to

think that this semantic difference is material to the applicability of the non-aggregation

principle. See Toxin Free USA, 507 F. Supp. 3d at 44, 46 (discussing § 28-3905(k)(1)(D) and

applying non-aggregation principle to suit brought under that subsection); Food & Water Watch,

Inc.,

, at *3 (same).

7 BlueTriton’s second main position is that applying the non-aggregation principle here

runs afoul of D.C. Circuit precedent. In the Court’s view, however, the cases that Defendant

relies on are tangential to the issue presented and shed far less light on the appropriate resolution

than do the numerous decisions of courts in this district, which squarely and thoroughly

addressed the matter. In fact, none of the Court of Appeals decisions that Defendant cites is even

a CPPA action, much less one brought under the Act’s private-attorney-general provision. See

Def. Opp. at 11–12 (citing Smith v. Washington,

(D.C. Cir. 1978); Comm. for GI

Rights v. Callaway,

(D.C. Cir. 1975); Tatum v. Laird,

(D.C. Cir.

1971), rev’d,

(1972)). Rather, as other courts in this district have recognized in the

context of similar CPPA actions, those earlier decisions stand for the unremarkable proposition

that “the D.C. Circuit has adopted the ‘either-viewpoint’ approach to calculating amounts in

controversy — which allows for consideration of either the value of the plaintiff’s requested

relief or the defendant’s potential costs — in cases where only equitable relief is sought.”

Handsome Brook Farm Grp. 2, LLC,

(citations omitted). Indeed, although

the D.C. Circuit has not directly addressed how the non-aggregation principle applies in CPPA

actions, it is not lost on this Court that as recently as April 2021, the Court of Appeals declined

to hear an appeal of a district court’s decision applying the principle in one such action. See In

re ExxonMobil Corp., No. 21-8001 (D.C. Cir. Apr. 23, 2021). That was true despite the

petitioner’s argument that the “question of how to calculate the amount in controversy in cases

seeking injunctive relief under Section 28-3905(k)(1) is . . . an open, important, and recurring

question in this circuit.” Reply Brief for Petitioner at 8, In re Exxon Mobil Corp., No. 21-8001

(D.C. Cir. Apr. 19, 2021).

8 Last, the Court is similarly unmoved by BlueTriton’s contention that the non-aggregation

principle does not apply here because “all purported ‘beneficiaries’ of the requested injunction

share a ‘common and undivided interest’ in the injunction.” Def. Opp. at 14. “The sole

exception to the nonaggregation principle is when ‘two or more plaintiffs unite to enforce a

single title or right in which they have a common and undivided interest.’” Toxin Free USA,

507 F. Supp. 3d at 46 (quoting Snyder,

). As with Defendant’s other arguments,

this Court is persuaded by the numerous courts in this district to reject this exact assertion.

Those courts have concluded that when a plaintiff “does not seek any integrated claim for relief

— like disgorgement of the defendants’ profits — that would hold defendants generally liable for

a fixed amount in which the members of the general public in Washington, D.C. would have a

common and undivided interest,” the “compliance costs cannot be aggregated to satisfy the

amount in controversy requirement.”

(citations omitted); accord Food & Water Watch, Inc.,

, at *5.

Attorney Fees

Having lost the first skirmish, Defendant still believes that it can win the war. It contends

that the amount-in-controversy requirement is satisfied here for the independent reason that the

“attorneys’ fees that Plaintiff could potentially recover in this case also exceed $75,000.” Def.

Opp. at 17. It is true that attorney fees “may be counted towards establishing a jurisdictional

amount when they are provided for by . . . a statute in controversy.” Parker-Williams v. Charles

Tini & Assocs., Inc.,

(D.D.C. 2014) (internal quotation marks and

citation omitted). Such fees are indeed available under the CPPA, and Earth Island seeks to

recover them here. See

(k)(2)(B); Compl. at 29. Although Plaintiff admits

9 that much, it nonetheless offers two alternative grounds for why its requested fees do not satisfy

the jurisdictional floor. The Court again concurs with Earth Island on the bottom line.

Plaintiff’s argument is that “attorneys’ fees, for purposes of CPPA actions seeking only

declaratory or injunctive relief, are either divided pro rata or else apportioned at $0.” Reply at

10. With regard to the latter option, Earth Island is correct that some courts in this district have

held that “when, like here, a plaintiff ‘is suing under [the private- attorney-general provision of

the DCCPPA] and is recovering no independent damages, the amount of attorneys’ fees

applicable to it for jurisdictional purposes are $0.” Handsome Brook Farm Grp. 2, LLC,

(quoting Nat’l Consumers League v. Bimbo Bakeries USA,

(D.D.C. 2014) (alterations in original)). At the same time, others have looked to the total amount

of attorney fees sought in a CPPA case, applied the non-aggregation principle, and divided that

sum by the number of consumers in D.C. Indeed, “[t]his position finds considerable support in a

number of district court opinions from this Circuit.” Animal Legal Def. Fund,

(collecting cases).

The Court need not decide here which of the two tests is more appropriate because even

applying the non-aggregation framework (which is more generous to Defendant), BlueTriton has

not demonstrated that the amount in controversy is met. In fact, even if the Court were to accept

a number of Defendant’s arguments — including that (1) this Court should decline to follow the

courts that have set attorney fees at $0 to determine the amount in controversy in CPPA cases;

(2) the fee award in this case could “amount to hundreds of thousands of dollars”; and (3) such

projected fees are not too speculative to accept at this stage — the Court would still side with

Earth Island. See Def. Opp. at 18. That is because, applying the non-aggregation principle,

“Defendant has not attempted to show that the pro rata amount of attorneys’ fees that would be

10 attributable to Plaintiff as a member of the general public would exceed $75,000.”

“Defendant’s showing is [thus] insufficient at the threshold.”

Last, BlueTriton’s only argument that the “non-aggregation rule should not apply . . . to

the request for attorneys’ fees” merely cites “the same reasons” that the rule should not apply to

the cost of Plaintiff’s desired injunctive relief. See Def. Opp. at 17. As the Court has just

rejected that position, it gains no traction as to fees either.

Remand is thus warranted here.

B. Fees and Costs

The Court next takes up Earth Island’s request to recoup its fees and costs associated with

the remand. Under

(c), a Court remanding a case after removal “may require

payment of just costs and any actual expenses, including attorney fees, incurred as a result of the

removal.” The Supreme Court has held that “the standard for awarding fees should turn on the

reasonableness of the removal.” Martin v. Franklin Cap. Corp.,

(2005).

“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.” Id. Courts in

this district have further explained that “[a] basis for removal is objectively reasonable when it

‘has at least some logical and precedential force.’” Organic Consumers Ass’n, Inc.,

(quoting Knop v. Mackall,

(D.C. Cir. 2011) (internal quotation

marks and citation omitted)).

The Court concludes that Earth Island is not entitled to recover its fees and costs.

Although BlueTriton’s position flies in the face of numerous opinions of courts in this district, its

position is not “objectively unreasonable because there is ‘no clear, controlling case law from the

D.C. Circuit.’” Toxin Free USA, 507 F. Supp. 3d at 47 (quoting Breakman,

108); see also Breathe DC,

(“Given the lack of controlling precedent in

this Circuit . . . and notwithstanding the thrust of the opinions of the district courts in this Circuit,

defendants did not lack an ‘objectively reasonable basis for removal.’”).

IV. Conclusion

For the foregoing reasons, the Court will grant Plaintiff’s Motion to Remand and deny its

request for fees and costs. A separate Order so stating will issue this day.

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: January 27, 2022

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