UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

INTERNATIONAL RIGHTS ADVOCATES,

Plaintiff,

v. Case No. 1:24-cv-894-RCL

MARS, INC., et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff International Rights Advocates (“IRAdvocates”), pursuant to the private attorney

general provisions of the D.C. Consumer Protection Procedures Act (“DCCPPA”), filed a

complaint in D.C. Superior Court against a trio of major chocolate manufacturers, alleging that

their representations about their ethical cocoa sourcing practices are false and misleading.

The defendants removed the case to this Court. IRAdvocates now moves to remand the

case to D.C. Superior Court, arguing that removal was improper because this Court lacks subject-

matter jurisdiction. There is no disagreement that there is complete diversity of citizenship, as is

required for the exercise of diversity jurisdiction, but the parties dispute whether the defendants

have met their burden to show an amount in controversy exceeding $75,000. IRAdvocates also

requests reimbursement of attorneys’ fees and costs associated with the remand litigation.

For the reasons contained herein, the Court will GRANT IRAdvocates’ Motion for

Remand, but DENY its Motion for Attorneys’ Fees and Costs.

I. BACKGROUND

IRAdvocates is a § 501(c)(3) non-profit public interest organization involved in advocacy,

education, and impact litigation. See Am. Compl. ¶¶ 103–105, Notice of Removal ex. 1, ECF No.

1 1-2. IRAdvocates is incorporated under the laws of D.C. See Civil Cover Sheet 1, Notice of

Removal attach. 1, ECF No. 1-1. The defendants are large multinational food companies engaged,

among other things, in the global cocoa and chocolate trade. Am. Compl. ¶¶ 106, 109, 112. There

is no disagreement that each defendant is diverse in citizenship to IRAdvocates based on their

respective headquarters and places of incorporation.1

According to IRAdvocates, each defendant publicly represents to consumers that it has

implemented policies to reduce or eliminate the use of forced and child labor in its supply chain.

Am. Compl. ¶ 34. For example, Mars claims that it undertakes “comprehensive human rights due

diligence processes,” that it “unequivocally condemns the use of child labor,” and that it maintains

internal initiatives such as its “Protecting Children Action Plan” and “Child Labor Monitoring and

Remediation Systems” designed to ensure ethical sourcing of cocoa. Id. ¶¶ 46–47, 53. Cargill

claims to have put in place a “Human Rights Policy” encompassing issues such as forced and child

labor, and that it has undertaken programs to “break[] the cycle of child labor in cocoa production.”

Id. ¶¶ 59, 61. And Mondelez claims to “explicitly prohibit[] child [labor] in [its] operations,” and

represents that the company has “zero tolerance for modern slavery . . . .” Id. ¶¶ 71, 80.

IRAdvocates further alleges that, notwithstanding their representations to the contrary, all

three defendants in fact source cocoa from plantations that utilize child labor and other unjust labor

practices. IRAdvocates claims to have undertaken an investigation, in collaboration with CBS

News and with the cooperation of a whistleblower, in which it visited Ghanaian plantations from

1 Defendant Mars, Inc. is headquartered in Virginia and incorporated in Delaware. Notice of Removal ¶ 12, ECF No. 1. Defendant Mars Wrigley Confectionery US, LLC is headquartered in New Jersey, has subsidiaries headquartered in Illinois and Virginia, and is incorporated in Delaware. Id. ¶ 13; Am. Compl. ¶ 107. Defendant Cargill, Inc. is headquartered in Minnesota and incorporated in Delaware. Notice of Removal ¶ 14. Defendant Cargill Cocoa and Chocolate, Inc. is likewise headquartered in Minnesota and incorporated in Delaware. Id. at ¶ 15. Defendant Mondelez International, Inc. is headquartered in Illinois and incorporated in Virginia. Id. ¶ 16. No defendant is a domiciliary of the District of Columbia.

2 which the defendants purchase their cocoa. Id. ¶ 83. IRAdvocates alleges that the majority of the

workforce consisted of children working under unsafe conditions, and that a buyer for the

defendants used “rigged scale[s]” in order to deliberately underpay their laborers. Id. ¶¶ 83–86.

Furthermore, IRAdvocates claims to have looked into some of the names of children who had

supposedly benefited from the defendants’ child labor intervention programs, and found that some

of the named children had not received the benefits that the defendants purported to have given

them, whereas other listed names did not refer to real people and appear to have been fabricated

entirely. Id. ¶¶ 90–91. IRAdvocates also cites investigative reports by other non-governmental

and media organizations that, it claims, corroborates its own account. Id. ¶¶ 94–98.

IRAdvocates argues that consumers value ethical labor practices, and that the defendants’

representations would lead a reasonable consumer to believe that the defendants have implemented

stronger guarantees against child and forced labor than they actually have. Id. ¶¶ 100–02.

In November 2023, IRAdvocates initiated a lawsuit against the defendants in D.C. Superior

Court. See D.C. Superior Court Docket Report 5, Notice of Removal ex. 2, ECF No. 1-3.

IRAdvocates filed the operative Amended Complaint in February 2024. See Am. Compl. at 1.

The Amended Complaint lists a single cause of action: misrepresentation in violation of the D.C.

Consumer Protection Procedures Act,

(a), (d), (e), (f), (f-1), & (h).

Importantly, IRAdvocates invokes the private attorney general or representative-action provision

found at

(k)(1), which authorizes a public interest organization to bring an

action challenging an unlawful trade practice on its own behalf and on behalf of the “general

public”—that is, the residents of the District of Columbia. IRAdvocates seeks declaratory relief,

an injunction requiring the defendants to remediate their allegedly misleading public statements,

3 and attorneys’ fees and costs as provided by statute. Prayer for Relief, Compl. at 30; see also

(k)(2)(C).

In March 2024, the defendants removed the case to this Court. See Notice of Removal,

ECF No. 1. The defendants believed that removal was permissible because this Court could

properly exercise jurisdiction over the dispute pursuant to the diversity jurisdiction statute,

(a). In April 2024, IRAdvocates filed a Motion to remand the case back to D.C.

Superior Court. See Mot. for Remand, ECF No. 17. At the same time, IRAdvocates filed a Motion

for Attorney Fees and Costs associated with the incipient remand dispute, arguing that the

defendants had no reasonable basis upon which to remove the case to federal court. See Mot. for

Attorney Fees and Costs, ECF No. 18. The defendants responded to both motions in May 2024.

See Resp. to Mot. for Remand, ECF No. 23; Resp. to Mot. for Attorney Fees, ECF No. 22.

IRAdvocates submitted its reply briefs the following week. See Reply for Remand, ECF No. 24;

Reply for Attorney Fees, ECF No. 25. Both Motions are now ripe for the Court’s review.

II. LEGAL STANDARDS

A defendant may remove “any civil action brought in a State court of which the district

courts of the United States have original jurisdiction” to federal court, “[e]xcept as otherwise

expressly provided by Act of Congress . . . .”

. Accordingly, removal is proper

only if the federal court would possess original subject-matter jurisdiction over the action, pursuant

either to Congress’s grant of so-called diversity jurisdiction in

(a), or its conferral

of “federal question” jurisdiction in

. See Apton v. Volkswagen Grp. of Am., Inc.,

(D.D.C. 2017) (Brown Jackson, J.). A federal court may exercise diversity

jurisdiction if (1) there is complete diversity of citizenship (i.e., no plaintiff is a citizen of the same

state as any defendant) and (2) the amount in controversy exceeds $75,000.

(a).

Neither party contends that this case comes within the Court’s federal question jurisdiction.

4 “[T]he party invoking federal jurisdiction bears the burden of establishing its existence.”

Steel Co. v. Citizens for a Better Env’t,

(1998). In removal disputes such as this,

that burden falls to the defendants, who must plausibly show that it is more likely than not that the

amount in controversy will exceed the statutory $75,000 jurisdictional threshold. If the amount in

controversy is contested, as it is here, the defendant must provide some evidence that it will surpass

the jurisdictional floor; “a defendant may not rely on sheer speculation to satisfy its burden of

showing the amount in controversy.” Inst. for Truth in Mktg. v. Total Health Network Corp.,

, 83–84, 89 (D.D.C. 2018) (Brown Jackson, J.) (first quoting Dart Cherokee Basin

Operating Co., LLC v. Owens,

, 87–89 (2014), and then citing Wexler v. United Air

Lines, Inc.,

(D.D.C. 2007)).

III. THE DEFENDANTS HAVE NOT SATISFIED THE AMOUNT-IN-CONTROVERSY REQUIREMENT, SO REMAND IS APPROPRIATE

The defendants argue that the statutory amount in controversy requirement is met for two

reasons. First, changing their product labeling, public messaging, or both to comply with the

plaintiff’s requested injunctive relief would cost more than $75,000. Second, the plaintiff’s

requested attorneys’ fees, which are provided by statute and therefore may be counted toward the

amount in controversy, will likely exceed $75,000. See Info. Strategies, Inc. v. Dumosch,

(D.D.C. 2014).

The viability of the defendants’ arguments hinges on the application of the so-called non-

aggregation principle, articulated in Snyder v. Harris,

(1969). In that case, the

Supreme Court held that “the separate and distinct claims of two or more plaintiffs cannot be

aggregated in order to satisfy” the amount in controversy required for diversity jurisdiction.

. The question is whether, in a DCCPPA representative action brought on behalf of the general

public, the amount in controversy should be measured by the total combined costs to the defendants

5 of complying with the plaintiff’s requested relief, or by a pro rata division of that cost among the

entire population of D.C., whom the plaintiff purports to represent. 2 The defendants offer four

arguments why their hypothetical costs should not be disaggregated, most of which are contrary

to the overwhelming weight of this District’s precedent, and none of which is ultimately availing.

A. The Non-Aggregation Principle Applies in Single-Plaintiff Cases

The defendants argue first that in single-plaintiff disputes such as this one the non-

aggregation principle does not apply. In support, the defendants cite two Supreme Court opinions,

each of which discusses the non-aggregation principle, and each of which states that it applies in

cases with two or more plaintiffs. Troy Bank of Troy, Ind. v. G. A. Whitehead & Co.,

(1911) (“When two or more plaintiffs, having separate and distinct demands, unite for

convenience and economy in a single suit, it is essential that the demand of each be of the requisite

jurisdictional amount . . . .”); Snyder,

(“[T]he separate and distinct claims of two

or more plaintiffs cannot be aggregated in order to satisfy the jurisdictional amount requirement.”).

Though the defendants acknowledge that IRAdvocates brings this suit on behalf of all D.C.

consumers, as provided by statute, the defendants urge that this feature of D.C. law cannot justify

non-aggregation for two reasons. First, the plaintiff seeks a unitary remedy—namely, a singular

injunction binding all the defendants—that cannot be divided among the population whom the

plaintiff claims to represent. Resp. to Mot. for Remand at 20–21. Second, applying non-

aggregation in a single-plaintiff representative action such as this one enables plaintiffs to avoid

2 Some courts have considered using only a subset of the D.C. population as the denominator, if the group of persons allegedly harmed by the defendants’ misrepresentation is reasonably identifiable and estimable. See, e.g., Breathe DC v. Santa Fe Nat. Tobacco Co.,

, 171–72 & n.9 (D.D.C. 2017) (approximating how many D.C. residents use the defendants’ products and then further reducing that number in proportion to the estimated share of those customers who are likely to be actually misled by the defendants’ representations). The Court need not dwell on that alternative approach because, in any event, the defendants have made no effort to estimate the number of D.C. residents who have in fact viewed their allegedly misleading statements.

6 crossing the jurisdictional amount-in-controversy threshold simply by declaring that their claim is

brought on behalf of the general public. That, in the defendants’ view, “elevate[s] form over

substance” by conditioning the court’s jurisdiction on a plaintiff’s arbitrary and semantic pleading

decisions rather than the tangible facts of the dispute. Resp. to Mot. for Remand at 19 (quoting In

re Folgers Coffee, Mktg. Litig., No. 21-2984-MD-W-BP,

, at *4 (W.D. Mo.

Aug. 19, 2021) (interpreting the DCCPPA’s private attorney general provision, but applying

Eighth Circuit precedent for the amount-in-controversy determination).

These arguments have been rejected, both implicitly and explicitly, by courts in this

District. First, no court in this District has accepted the defendants’ suggestion that Troy Bank of

Troy or Snyder compels aggregation of the defendants’ costs in single-plaintiff representative suits.

Indeed, Troy Bank of Troy does not discuss single-plaintiff disputes at all. Snyder does, but calls

for aggregation “in cases in which a single plaintiff seeks to aggregate two or more of his own

claims against a single defendant.” Snyder,

(emphasis added).3 This language

from Snyder is inapposite to the genre of representative actions, in which a single plaintiff seeks

to aggregate the claims of itself and others.4 See Nat’l Consumers League v. Bimbo Bakeries USA,

(D.D.C. 2014) (Lamberth, J.) (quoting Snyder,

).

3 The only D.C. Circuit case cited by the defendants contains language that is virtually identical to Snyder. See Rosenboro v. Kim,

(D.C. Cir. 1993) (stating that “the claims of multiple plaintiffs may not be aggregated” to satisfy the amount-of-controversy requirement for diversity jurisdiction). Like Snyder, then, it provides no controlling law for single-plaintiff representative actions. 4 In fact, Snyder’s language on non-aggregation in single-plaintiff cases is doubly inapposite to this case because it refers only to single-defendant cases, whereas this case involves multiple defendants. Nevertheless, it bears mention that courts in this District have uniformly declined to aggregate the defendants’ costs in DCCPPA representative actions, even in single-defendant cases. See, e.g., Breathe DC v. JUUL Labs, Inc., No. 20-cv-619-JEB,

, at *4–5 (D.D.C. July 13, 2023) (Boasberg, C.J.); Rasay v. Pepperidge Farm, Inc., No. 22-cv-449-BAH,

, at *6–7 (D.D.C. Sept. 19, 2022) (Howell, C.J.); Inst. for Truth in Mktg., 321 F. Supp. 3d at 91–92 (Brown Jackson, J.); Clean Label Project Found. v. NOW Health Grp., Inc., No. 21-cv-11-JDB,

, at *4–6 (D.D.C. July 6, 2021) (Bates, J.); Animal Legal Def. Fund v. Hormel Foods Corp.,

, 59–62 (D.D.C. 2017) (Kollar-Kotelly, J.); Beyond Pesticides v. Exxon Mobil Corp., No. 20-cv-1815-TJK,

, at *2 (D.D.C. Mar. 22, 2021) (Kelly, J.).

7 Troy Bank of Troy and Snyder are more instructive if a representative DCCPPA action is

instead treated as a de facto multi-plaintiff dispute for jurisdictional purposes. In multi-plaintiff

cases, aggregation is appropriate where “several plaintiffs unite to enforce a single title or right, in

which they have a common and undivided interest . . . .” Troy Bank of Troy, 222 U.S. at 40–41;

see also Snyder,

(same). But the case law in this District is clear and uniform that

the relief available in a typical DCCPPA representative action does not constitute a “common and

undivided” interest because each member of the public could hypothetically sue as an individual

to enforce his or her discrete right to such relief. See Clean Label Project Found. v. NOW Health

Grp., Inc., No. 21-cv-11-JDB,

, at *4 (D.D.C. July 6, 2021) (quoting Animal

Legal Def. Fund v. Hormel Foods Corp.,

, 61–62 (D.D.C. 2017)); Earth Island

Inst. v. BlueTriton Brands,

, 111 (D.D.C. 2022) (quoting Toxin Free USA v.

J.M. Smucker Co.,

, 46 (D.D.C. 2020)).5 In other words, IRAdvocates is suing

to vindicate the divisible interests of each individual D.C. consumer; the fact that a single

injunction might redress each consumer’s injury simultaneously is beside the point.6

5 On the other hand, two fact patterns that exemplify a common and undivided interest include actions for the disgorgement of profits, which seek to create a fixed fund “in which the members of the general public” would share an indivisible interest, Toxin Free USA, 507 F. Supp. 3d at 46, or a multi-plaintiff suit seeking enforcement of a single vendor’s lien which neither plaintiff could “enforce in the absence of the other,” as was the case in Troy Bank of Troy.

; see also Santa Fe Nat. Tobacco,

(stating that there is a common and undivided interest if “individual members of the class could not as a matter of law bring suit other than in a representative capacity” or if no plaintiff could enforce its own interest in the others’ absence) (citations omitted). 6 The defendants cite only one case from this District for the proposition that equitable relief in the form of a single injunction that benefits all plaintiffs constitutes a “common and undivided interest” for aggregation purposes—and ironically, that case strongly favors IRAdvocates’ position. In Kopff v. World Research Group, LLC, a married couple sued a group of defendants for sending dozens of unsolicited advertisements to the plaintiffs’ shared fax machine in violation of the Telephone Consumer Protection Act (“TCPA”).

(D.D.C. 2003). The court held that the plaintiffs’ right to sue under the TCPA was a collective right, for which amount-in-controversy aggregation would be proper, because the plaintiffs had “a common interest that stem[med] from the transmissions to the single fax machine, rather than from their individual receipt of unsolicited advertisements.”

(emphasis added). The implication is that if the Kopff plaintiffs’ claims had arisen from their individual receipt of unwanted adverts, their claims would not be aggregable. The instant case, like other DCCPPA representative suits, is more analogous to the implied counterfactual in Kopff than it is to Kopff itself: Each individual consumer represented by IRAdvocates could sue in his or her own capacity to enforce his or her individual rights under the DCCPPA, much as

8 The defendants’ form-over-substance argument—that this District’s application of the non-

aggregation principle arbitrarily renders cases non-removable based on the plaintiff’s whim to sue

in a representative capacity rather than on his or her own behalf alone—fares no better. D.C.’s

legislature made the conscious decision to include a private attorney general provision in the

DCCPPA. A plaintiff’s choice to invoke that provision, and thus bring about its attendant

jurisdictional consequences, is not some random accident of fate or act of nature; it is the exercise

of a right conferred by representative democratic processes, of the sort that courts must ordinarily

respect. Moreover, bringing a representative action on behalf of the general public is not simply

a matter of reciting certain magic words in a complaint: a public interest organization such as

IRAdvocates must show that it has a “sufficient nexus to the interests involved of the consumer or

class to adequately represent those interests,” and risks dismissal if that requirement is not met.

(k)(1)(D)(ii). And even if a given public interest organization is statutorily

eligible to bring a suit on behalf of the general public, doing so is still not a costless proposition.

That organization is required to notify the Office of the Attorney General of D.C. of its suit within

10 days of filing, and if the D.C. Attorney General elects to initiate a civil action of its own based

on the same subject matter, the plaintiff’s suit is stayed until the D.C. Attorney General’s action is

resolved.

§ 28-3905(k)(7). To say that applying the non-aggregation principle to DCCPPA

representative actions “elevate[s] form over substance” is to ignore that the plaintiff’s choice of

“form” has real, substantive implications.

if he or she were in “individual receipt of unsolicited advertisements.” Id.; see Clean Label Project Found.,

, at *4. Thus Kopff undermines the very proposition for which the defendants cite it. Though the defendants gesture to cases from other districts for support, the Court is more persuaded by the approach its colleagues in this District have taken to date.

9 B. The Non-Aggregation Principle Applies Even If the Cost to the Defendants Does Not

Vary with the Number of Beneficiaries

The defendants next argue that if a plaintiff seeks a single “systematic change,” the cost of

which would not vary with the number of beneficiaries—who may or may not even be parties to

the action—then the amount in controversy should be judged according to the defendants’ total

compliance costs, rather than a pro rata distribution of those costs among the population of party-

and nonparty-beneficiaries. Resp. to Mot. To Remand at 29. As discussed, myriad cases from this

District have adopted the pro rata approach, assigning no importance either to the party/non-party

distinction or to the inelastic costs of an injunction.7 Nevertheless, the defendants argue that this

approach conflicts with binding D.C. Circuit precedent, relying on two opinions in particular.

In Tatum v. Laird, military servicemembers brought a representative suit to enjoin an

allegedly unlawful civilian surveillance program.

(D.C. Cir. 1971). The court

first noted that “where purely injunctive relief is sought, the amount in controversy may be

measured by either ‘the value of the right sought to be gained by the plaintiff . . . [or the] cost [of

enforcing that right] to the defendant . . . .”

at 951 (quoting Hedberg v. State Farm Mut. Auto

Ins. Co.,

(8th Cir. 1965) (Blackmun, J.)). It went on to hold that the exercise of

diversity jurisdiction was proper because the cost to the military of decommissioning the program

and destroying all illicitly gathered civilian data “might well exceed” the amount-in-controversy

threshold.

And in Committee for GI Rights v. Callaway, servicemembers and a non-profit

organization brought a putative class action to enjoin certain aspects of the military’s drug abuse

prevention program.

, 468–70 (D.C. Cir. 1975). The court reiterated the standard

7 In addition to the citations to DCCPPA cases in the preceding section, which have uniformly adopted this methodology, see also Santa Fe Nat. Tobacco, 232 F. Supp. 3d at 170–71 (stating that the non-aggregation principle articulated in Snyder “extends equally to actions brought by nonprofit groups where the beneficiaries need not be added as parties to the lawsuit”).

10 from Tatum: “[T]he amount in controversy may be measured either by the ‘value of the right

sought to be gained by the plaintiff or the cost of enforcing that right to the defendant.’”

at 472

(quoting Tatum,

). It ultimately concluded that the amount-in-controversy

requirement was met, whether measured by the value of the relief inuring to each individual

plaintiff, or by the costs that the Army would incur from compliance with a hypothetical injunction.

Id. at 473.

But in a later opinion, the D.C. Circuit recognized a “possible conflict” between the rule of

Tatum and Callaway on the one hand and the Snyder non-aggregation principle on the other. See

Fenster v. Schneider,

, 767 & n.1 (D.C. Cir. 1980). The D.C. Circuit declined to

resolve this conflict because it possessed subject-matter jurisdiction under a different statute.

. The Circuit’s decision not to address this tension opened the door for the district courts to

reconcile these competing principles as applied to DCCPPA representative actions. And they have

almost uniformly held that, although the cost to the defendant may be counted toward the amount

in controversy (as in Tatum and Callaway), that cost must be divided among the beneficiaries to

fully honor and effectuate the non-aggregation principle decreed by the Supreme Court.8

For example, in Breakman v. AOL LLC,9 the court first declined to consider the cost to the

defendant, but held in the alternative that “when a court looks to the compliance costs of a

defendant to determine the amount in controversy in an action where separate and [distinct] claims

8 Because this Court is of the opinion that this District’s approach to non-aggregation in the DCCPPA context is consonant with binding D.C. Circuit and Supreme Court authority, it is unpersuaded by the defendants’ invocation of out-of-Circuit cases which, they claim, counsel a different result. See Resp. to Mot. for Remand at 23. 9 The defendants urge the Court not to follow Breakman because that opinion relies in part on “authorities arising out of the class-action context.” Resp. to Mot. for Remand at 26. Of course, the fact that Breakman analogized— persuasively and logically—to principles that emerge from the class-action context is no good reason, standing alone, to disregard it. The defendants argue that the class-action precedent cited in Breakman is inapplicable solely because those class actions sought “individualized benefits for a class of persons” whereas IRAdvocates’ DCCPPA suit, in their view, “pursues a single, indivisible remedy . . . .”

In other words, the distinction that the defendants attempt to draw hinges on the same “common and undivided interest” argument that this Court has already rejected above.

11 are presented on behalf of multiple parties, ‘the cost running to each plaintiff must meet the amount

in controversy requirement.’”

(D.D.C. 2008) (quoting Lovell v. State

Farm Mut. Auto. Ins. Co.,

(10th Cir. 2006)). In Witte v. General Nutrition

Corp., the court adopted Breakman’s alternative approach, holding that consideration of the

defendant’s “total compliance costs in calculating the amount in controversy . . . would circumvent

the non-aggregation principle articulated in Snyder and Zahn.”

(D.D.C. 2015)

(citing Zahn v. Int’l Paper Co.,

(1973)). In Organic Consumers Association v.

Handsome Brook Farm Group 2, LLC, the court acknowledged that Tatum and Callaway permit

consideration of either the value of a plaintiff’s requested relief or a defendant’s costs of

compliance, but followed Breakman and Witte in prorating the total cost of compliance among the

beneficiary population.

, 77–78 (D.D.C. 2016). As already discussed, every

court in this District to consider this issue has followed suit—and when the D.C. Circuit was asked

in 2021 to weigh in, it declined to do so. See Earth Island Inst., 583 F. Supp. 3d at 109–111

(collecting cases and citing In re Exxon Mobil Corp., No. 21-8001 (D.C. Cir. Apr. 23, 2021)).

Particularly in light of the admonition that federal courts are to “construe [their] diversity

jurisdiction narrowly,” the Court is not moved to upset this consensus. Nat’l Org. for Women v.

Mut. of Omaha Ins. Co.,

(D.D.C. 1985) (citing City of Indianapolis v. Chase

Nat’l Bank,

, 76–77 (1941)).10

10 IRAdvocates offers an additional argument pertaining to the amount-in-controversy debate: regardless of how the cost of compliance is to be distributed, the defendants have not plausibly argued that their cost of compliance should exceed $75,000 at all. The plaintiff argues that the injunctive relief that it requests would be mandatory only within the boundaries of the District of Columbia, which would reduce the defendants’ compliance costs as compared to a nationwide injunction, and that the defendants “are not entitled to conjure the most expensive manner to comply with the limited injunctive relief sought,” i.e. by marshaling costly legal, design, marketing, and technical resources to revise their public representations. Reply for Remand at 5. Even setting aside the defendants’ affidavits regarding the hypothetical costs of compliance, these arguments fall wide of the mark. The defendants are multinational organizations that sell their products all over the United States, among other places, and whose online resources are available for viewing in each and every state. IRAdvocates allege that

12 C. The Hypothetical Attorneys’ Fee Award Does Not Satisfy the Jurisdictional Amount-

in-Controversy Requirement

The defendants next argue that the attorneys’ fees at stake in this dispute satisfy the

amount-in-controversy requirement. Their logic proceeds as follows: first, attorneys’ fees can be

counted toward the amount in controversy when they are provided by statute; second, it makes no

sense to divide attorneys’ fees pro rata when there is a unity of identity between the plaintiff and

plaintiff’s counsel; and third, IRAdvocates will individually accrue more than $75,000 in

attorneys’ fees and expenses in the course of this litigation. Therefore, because the DCCPPA

provides for recovery of attorneys’ fees and IRAdvocates is represented by one of its own

attorneys, the fees at issue in this dispute independently satisfy the amount-in-controversy

requirement. Though the defendants are correct about the first of their three arguments, and

perhaps the second, their syllogism ultimately fails because the Court is unpersuaded by the third.

“When a contract or statute provides that attorney[s’] fees may be included in a judgment

against a defendant, the estimated value of these fees may be considered in determining the amount

in controversy.” Rasay v. Pepperidge Farm, Inc., No. 22-cv-449-BAH,

, at *6

(D.D.C. Sept. 19, 2022) (citing Mo. State Life Ins. Co. v. Jones,

(1993)). The

DCCPPA is such a statute. See

(k)(2)(B).

There is some divergence of authority in how courts attribute attorneys’ fees to the amount-

in-controversy in DCCPPA representative actions. Some courts, including this Court, have held

the defendants have violated the DCCPPA through messaging on their websites, in press releases, on social media, and on their product labels. See generally Am. Compl. ¶¶ 41–81. It defies common sense to imagine that, if a court were to order injunctive relief against the defendants, they would create special versions of their product labels and digital assets for exclusive and preclusive consumption in the District of Columbia. And even if they could do so, it would still be plausible—if not virtually certain—that it would require significant legal, marketing, public relations, manufacturing, and web design resources to assure compliance with an injunction. Moreover, defendants seeking removal to federal court on diversity grounds need not establish to a legal certainty that the requisite amount in controversy is met. Dart Cherokee Basin, 574 U.S. at 84.

13 that when a plaintiff brings a representative suit but seeks no independent damages for itself, its

share of the attorneys’ fees is considered to be $0 for jurisdictional purposes. See, e.g., Bimbo

Bakeries,

; see also Handsome Brook,

. Others, however,

have applied the same pro rata approach to the attorneys’ fee award as they would to the cost of

compliance with an injunction: the plaintiff’s share of attorneys’ fees for jurisdictional purposes is

the sum total of the hypothetical fee, divided by the represented population. See, e.g., Clean Label

Project Found.,

, at *7; Animal Legal Def. Fund,

. It is

clear and uncontested that, under either the “$0 theory” or the pro rata theory, the attorneys’ fees

attributable to IRAdvocates in this case would not reach the $75,000 threshold required for

diversity jurisdiction: the latter theory would require the fees to exceed the product of $75,000

multiplied by the population of D.C., which is inconceivable.11

But the defendants contend that neither theory is applicable here, because the plaintiff and

plaintiff’s counsel are the same entity: IRAdvocates’ executive director, Terrence Collingsworth,

is serving as co-counsel, so his organization would presumably receive and retain his share of any

hypothetical attorneys’ fee award. In the defendants’ view, engaging in an imaginary pro rata

distribution of attorneys’ fees, or supposing that the plaintiff’s share is $0, when in reality the

plaintiff organization itself would pocket the fee award, would “stretch the [non-aggregation]

principle past the breaking point.” Resp. to Mot. for Remand at 27.

Ordinarily, DCCPPA representative-suit plaintiffs are represented by outside counsel. The

Court is aware of only a few representative actions in which a public interest organization is

11 Because the attorneys’ fees for jurisdictional purposes would not exceed $75,000 under either theory, the Court sees no reason to revisit its prior endorsement of the “$0 theory,” notwithstanding the defendants’ allusion to two opinions that supposedly cut against it. See Resp. to Mot. for Remand 14 (citing cases from the Eastern District of Texas and the Southern District of California). The Court does find it curious, however, that the defendants characterize these out-of-District opinions, neither of which interpreted the DCCPPA, as “well-settled precedent.”

14 represented by one of its own attorneys—and thus effectively seeks attorneys’ fees for itself—

none of which substantially reckons with the question of whether a plaintiff’s personal share of an

attorneys’ fee award must be divided by the beneficiary population for purposes of calculating the

jurisdictional amount. See, e.g., Food & Water Watch, Inc. v. Tyson Foods, Inc., No. 19-cv-2811-

APM,

(D.D.C. Mar. 5, 2020); Food & Water Watch v. Smithfield Foods, Inc.,

No. 21-cv-2065-CRC,

(D.D.C. Dec. 6, 2021). IRAdvocates’ reply brief points

to no on-point authority and fails to address the question head-on. See Reply for Remand 9–11.

IRAdvocates’ unusual posture of self-representation strikes the Court as potentially salient

to the jurisdictional amount calculation. The justification for engaging in a pro rata calculation of

attorneys’ fees or considering them to be $0 in a DCCPPA representative action is that the plaintiff

is typically suing as an ordinary member of the public, with an indistinct interest in the outcome.

True, the plaintiff may reap the proceeds of the suit like everybody else, but it has no differentiated

personal stake in the action. The court can fairly treat the usual DCCPPA plaintiff’s share of

attorneys’ fees as negligible because, like the general public, it does not personally profit from the

fee award. In this dispute, however, because an IRAdvocate attorney is working on the case, the

organization stands to gain a differentiated monetary benefit that is not shared with the general

public it purports to represent. Disaggregating the fees or imagining them to be $0 in such a case

raises the possibility that a self-interested, profit-driven plaintiff could manipulate the D.C. Code

and the non-aggregation principle to keep potentially lucrative lawsuits out of federal court, a

forum to which the defendant may be rightfully entitled under federal law.

However, the Court need not put a stake in the ground on this issue because, as this Court

has held before, “speculation or conclusory statements as to the amount of attorneys’ fees is

insufficient to establish a jurisdictional amount.” Bimbo Bakeries,

. Because

15 courts in this District are “‘not entirely comfortable with’ retaining an action in federal court

‘where satisfaction of the amount in controversy requirement depends upon a lump sum award of

attorneys’ fees,” Smithfield Foods,

, at *3 (quoting Hackman v. One Brands,

LLC, No. 18-cv-2101-CKK,

, at *8 (D.D.C. Apr. 1, 2019)), they require some

meaningful and reasonably specific allegations as to why attorneys’ fees are more likely than not

to exceed the jurisdictional amount-in-controversy requirement. Compare Zuckman v. Monster

Beverage Corp.,

(D.D.C. 2013) (holding that the defendant’s fee estimate

was sufficiently concrete because the plaintiffs, by order of the court, had submitted an affidavit

attesting to their hourly billable rates and predicting the number of hours they would likely spend

on the litigation), with Animal Legal Def. Fund,

(rejecting as speculative a

defendant’s fee prediction based on its own estimate of opposing counsel’s hourly rates and its

conclusory assertion that the plaintiff “will assuredly spend” a certain number of hours on the

case), and Nat’l Consumers League v. Gen. Mills, Inc.,

(D.D.C. 2010)

(rejecting the defendant’s assertions that attorneys’ fees would probably exceed the jurisdictional

threshold based on a “conservative estimate of $250 per hour of attorney time”).

Though the defendants have adduced some concrete information about Collingsworth’s co-

counsel Kim Richman’s hourly billing rates, and gestured to some large fee awards ultimately

granted in a handful of other DCCPPA representative actions, they have provided no information

whatsoever about Collingsworth’s compensation, nor about the division of labor between him and

Richman. Instead, Defendants baldly assert that “there can be no doubt that Mr. Collingsworth’s

request for fees and costs will exceed $75,000” because he “drafted the original complaint, . . .

conducted a pre-complaint investigation . . . and presumably will continue to be [] involved in the

ongoing proceedings in this case . . . .” Resp. to Mot. for Remand at 26 n.6. The defendants’

16 assertion about Mr. Collingsworth’s future involvement in the case is entirely conjectural. And

even if it is true that Mr. Collingsworth led the initial factual investigation and drafted the original

Complaint, the defendants offer no hint at all as to how much he would be compensated for those

efforts. In sum, even if the defendants are right about aggregating attorneys’ fees in representative

DCCPPA actions where the plaintiff and plaintiff’s counsel are one and the same, their statements

about Mr. Collingsworth’s fees are too conclusory to justify the exercise of diversity jurisdiction.

D. Applying the Non-Aggregation Principle to DCCPPA Claims Does Not Frustrate the

Non-Aggregation Principle’s Underlying Rationale

Finally, the defendants raise what may be fairly characterized as a policy argument. They

state, accurately, that the animating purpose of the Supreme Court’s non-aggregation doctrine is

to prevent multiple plaintiffs from banding together to sneak their trivial, low-dollar-value claims

into federal court, in contravention of the amount-in-controversy floor set by Congress. But they

argue that the way courts in this District have applied that doctrine to representative DCCPPA

action achieves a very different outcome: it prevents even extremely expensive cases from being

removed to federal court. The defendants estimate that an injunction would have to exceed $50

billion in total compliance costs in order to satisfy the $75,000 per capita amount-in-controversy

requirement that this District’s DCCPPA precedent currently demands.

Be that as it may, there are important policy considerations favoring this District’s

consensus approach as well. It may be practically impossible, as the defendants argue, for a

DCCPPA representative suit to meet the extremely high cost threshold for removal under the

prevailing pro rata approach. But conversely, if the courts were to adopt the defendants’ favored

approach—that is, measuring amount-in-controversy by the undivided sum of attorneys’ fees and

the defendants’ cost of complying with an injunction—then it would be exceptionally rare for a

17 case to fall below the $75,000 removal threshold.12 That is especially true in cases such as this,

where the defendants are large multinational consumer products corporations. In effect, the choice

is between the existing rule, under which virtually no representative DCCPPA suit is removable

to federal court on diversity grounds, or the defendants’ preferred rule, which would render

virtually every such case removable so long as the parties are completely diverse in citizenship.

The defendants’ proposed rule would substantially deprive the D.C. courts of the opportunity to

interpret and administer the District’s own laws, an outcome that is inconsonant with our federated

constitutional design. See Williams v. Homeland Ins. Co. of N.Y.,

, 816 (5th Cir. 2021)

(“[R]especting state court resolution of state law issues is a bedrock principle of our federal

system.”) (citing Davis v. Mich. Dep’t of Treasury,

(1989)); Acri v. Varian

Assocs., Inc.,

(9th Cir. 1997) (“While federal courts may be obliged to speak

on questions of state law in certain circumstances, we should always be mindful that, absent a

strong justification, state law claims belong in state courts. After all, ‘the National Government

will fare best if the States and their institutions are left free to perform their separate functions in

their separate ways.’”) (O’Scannlain, J., dissenting) (quoting Younger v. Harris,

(1971)).

At its core, the defendants’ policy argument rests on the improper view that DCCPPA

claims that threaten expensive injunctive relief belong in federal court simply because they are so

big and important. They are therefore reminded that “our federal system trusts state courts to hear

12 Indeed, as the defendants themselves are quick to point out, the attorneys’ fees in DCCPPA representative actions often exceed $75,000 by themselves, even before accounting for statutory damages or the costs of complying with an injunction. See Resp. to Mot. for Remand at 15 (noting that “If IR[Advocates] is successful, the fee award almost certainly would exceed $75,000—and by itself satisfy the amount-in-controversy requirement,” and collecting illustrative cases with fee awards in excess of $75,000). This fact would virtually guarantee removability in the absence of the non-aggregation principle.

18 most cases—even big, important ones . . . .” City of Hoboken v. Chevron Corp.,

, 705

(3d Cir. 2022) (“[F]ederal courts cannot hear cases just because they are important.”) (Bibas, J.).13

Other courts in the DCCPPA context have heeded the “longstanding directive that federal

jurisdiction should be strictly interpreted.” Clean Label Project Found.,

, at *4

(quoting Tyson Foods,

, at *4). This Court will do the same, and therefore

adheres to the consensus approach of dividing compliance costs among the beneficiary population

in DCCPPA representative actions.

In sum, the defendants have not convinced the Court to depart from this District’s

conventional wisdom regarding the calculation of the amount in controversy in representative

DCCPPA actions: the cost of complying with a hypothetical injunction must be divided among the

beneficiary population, which in this case is the population of D.C. Only if this prorated cost of

compliance exceeds $75,000 may the case be removed to federal court pursuant to the diversity

jurisdiction statute. And though the defendants have raised a compelling argument regarding the

attribution of attorneys’ fees in cases where the plaintiff serves as counsel for itself, their

allegations that the share of the attorneys’ fees that would accrue to IRAdvocates will exceed

$75,000 are too speculative to stand on their own. Therefore, the jurisdictional amount required

for the Court to exercise diversity jurisdiction is not met and, absent any other basis for subject-

matter jurisdiction, the case must be remanded to D.C. Superior Court.

13 This paragraph has referred multiple times to the distinction between federal and state courts. The District of Columbia, of course, is not a state. But “[t]he D.C. Superior Court is considered a state court for removal purposes,” see Flavell v. Int’l Bank for Reconstruction & Dev., No. 20-cv-623-CKK,

, at *3 n.3 (D.D.C. Mar. 7, 2022) (citing

(a)), and the principles of federalism and local self-governance apply all the same.

19 IV. THE PLAINTIFFS ARE NOT ENTITLED TO ATTORNEYS’ FEES OR EXPENSES ASSOCIATED WITH LITIGATING THIS REMAND

IRAdvocates asks the Court to award it fees and expenses associated with briefing its

Motion to Remand because the defendants lacked any “objectively reasonable basis for removal.”

Mot. for Attorney Fees and Costs 1. IRAdvocates adds that it “repeatedly informed Defendants

of the uniform precedent holding that diversity jurisdiction is lacking,”

precedent that it

describes as “binding.” See Mot. for Remand at 8. This request must be denied.

Courts may award fees incurred as a result of wrongful removal under

(c),

but “only where the removing party lacked an objectively reasonable basis for seeking removal.”

Martin v. Franklin Cap. Corp.,

(2005). Courts in this District confronted with

a substantially similar request—submitted, more often than not, by the same attorney serving as

IRAdvocates’ outside counsel in this dispute—have overwhelmingly denied it. See JUUL Labs,

, at *5 (collecting cases, each of which features Kim Richman as counsel for

the plaintiff(s), in which this request is denied). On each occasion, the reason for denial has been

the same: there is no “clear, controlling case law from the D.C. Circuit” on non-aggregation in the

DCCPPA context,

(quoting Breakman,

), so arguing that a court should

reject the District’s consensus approach is not “objectively unreasonable,” even if it runs counter

to the overwhelming weight of precedent.14 In this dispute, the case for awarding fees associated

with the remand litigation is even weaker than usual, because the defendants raised a serious

question about the jurisdictional implications of the plaintiff serving as its own counsel in a

DCCPPA representative action—a question for which the District’s case law furnishes no clear

answer, and which the Court has declined to resolve. Therefore, this Court will follow its own

14 After all, and contrary to IRAdvocates’ description of the District’s case law as “binding,” “the decisions of sister district courts, of course, are not binding on this court.” Petit v. U.S. Dep’t of Educ.,

(D.D.C. 2008) (citing Gasperini v. Ctr. for Humanities, Inc.,

, 430 n.10 (1996)).

20