UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
NATIONAL CONSUMERS LEAGUE,
Plaintiff,
v. Civil Action 09-01881 (HHK)
GENERAL MILLS, INC.,
Defendant.
MEMORANDUM OPINION
National Consumers League (“NCL”) sued General Mills in the Superior Court for the
District of Columbia under the District of Columbia Consumer Protection Procedures Act
(“CPPA”), D.C. Code §§ 28-3091, et seq. After General Mills removed the action to this court,
NCL filed this Emergency Motion to Remand [#16]. Upon consideration of the motion, the
opposition thereto, and the arguments of counsel at a hearing, the Court concludes that NCL’s
motion should be granted.
I. BACKGROUND
NCL brings this suit under the “private attorney general” provision of the CPPA, which
provides that “[a] person, whether acting for the interests of itself, its members, or the general
public may bring an action under this chapter in the Superior Court of the District of Columbia
seeking relief from the use by any person of a trade practice in violation of the law of the District
of Columbia . . .” D.C. Code § 28-3095(k)(1). NCL’s complaint alleges that General Mills
violated the CPPA “by, inter alia, falsely misrepresenting that [Cheerios] has drug-quality
properties that would reduce total and ‘bad’ cholesterol levels when eaten.” Compl. ¶ 34. NCL seeks declaratory and injunctive relief, the greater of “treble damages or statutory damages in the
amount of $1,500 per violation,” and attorneys’ fees, experts’ fees, and costs. Compl. Prayer for
Relief.
General Mills’ Notice of Removal contends that NCL’s suit is removable either as a class
action under the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d)(2), or pursuant to this
Court’s diversity jurisdiction. NCL’s Motion for Remand disputes the Court’s subject matter
jurisdiction and additionally argues that NCL does not have Article III standing. NCL’s position
has merit.
II. ANALYSIS
A. NCL Does Not Have Article III Standing.
NCL expressly disclaims Article III standing, maintaining that it has suffered no injury in
fact. General Mills acknowledges that NCL did not sustain injury by purchasing Cheerios, but
argues that NCL has organizational standing to bring this suit in federal court because
“defendant’s alleged actions have led the organization ‘to devote significant resources to identify
and counteract the defendant’s’ [sic] allegedly unlawful ‘practices.’” General Mills’ Opp’n to
NCL’s Mot. Remand at 3 (quoting Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982)).
General Mills’ argument is unconvincing.
“Organizations have standing in their own right if they establish that the organization has
suffered an injury-in-fact, i.e., a ‘concrete and demonstrable injury to the organization’s
activities.’” Center for Auto Safety v. Nat’l Highway Traffic Safety Admin., 793 F.2d 1322, 1329
n.41 (D.C. Cir. 1986) (quoting Havens, 455 U.S. at 379); see Nat'l Taxpayers Union, Inc. v.
United States, 68 F.3d 1428, 1433 (D.C. Cir. 1995) (holding that organizational standing is proper
2 where the challenged conduct has directly harmed an organization’s ability to provide services).
A plaintiff does not have standing, however, if the alleged violation merely sets back the
organization’s abstract social interests or frustrates its objectives. See Nat’l Taxpayers Union, 68
F.3d at 1433 (holding that frustration of an organizations’ objectives “is the type of abstract
concern that does not impart standing.”).
The D.C. Circuit has rejected the suggestion that “the time and money that plaintiffs
spend in bringing suit against a defendant would itself constitute a sufficient ‘injury in fact,’”
finding that to be “a circular position that would effectively abolish the requirement altogether.”
Fair Employment Council v. BMC Mktg. Corp., 28 F.3d 1268, 1277 (D.C. Cir. 1994); see also
Abigail Alliance for Better Access to Dev. Drugs v. Von Eschenbach, 469 F.3d 129, 133 (D.C.
Cir. 2006) (“[A]n organization is not injured by expending resources to challenge the regulation
itself; we do not recognize such self-inflicted harm.”); Equal Rights Center v. Post Properties,
Inc., — F.Supp.2d —, 2009 WL 3088801, at *4 (D.D.C. Sept. 28, 2009) (“[O]rganizational
plaintiffs cannot establish injury that is fairly traceable to defendants’ conduct merely by
deciding to devote resources to identify and counteract misinformation. . . . Indeed, were an
association able to gain standing merely by choosing to fight a policy that is contrary to its
mission, the courthouse door would be open to all associations.”) (internal quotations and
alteration omitted).
General Mills contends that the D.C. Circuit has found organizational standing on facts
similar to those presented here. General Mills points to Action Alliance of Senior Citizens v.
Heckler, 789 F.2d 931 (D.C. Cir. 1986), and specifically, the Circuit’s holding that plaintiffs had
organizational standing where the organization “devote[d] themselves to the service of senior
3 citizens and rest[ed] their claims on programmatic concerns, not on wholly speculative or purely
ideological interests.” 789 F.2d at 937. In that case, plaintiffs alleged that “the challenged
regulations deny the AASC organizations access to information and avenues of redress they wish
to use in their routine information-dispensing, counseling, and referral activities” such that the
organizations “alleged inhibition of their daily operations, an injury both concrete and specific to
the work in which they are engaged.” Id. at 937-38. The Circuit found the organizations had
standing because they “adequately alleged a direct, adverse impact on [their] activities by reason
of the agency decisions reflected in the HHS-specific regulations.” Id. at 937.
General Mills also relies on Abigail Alliance v. Von Eschenbach, 469 F.3d at 133, to argue
that the “‘direct conflict’ . . . between General Mills’s [sic] alleged conduct and NCL’s
organizational mission and activities “ is sufficient to confer organizational standing. General
Mills’ Opp’n at 6 (quoting Abigail Alliance, 469 F.3d at 133). In Abigail Alliance, the Circuit
upheld standing where the plaintiff alleged that “unduly burdensome requirements that the FDA
impose[d] on experimental treatments” “frustrated [its] efforts to assist its members and the
public in accessing potentially life-saving drugs and its other activities, including counseling,
referral, advocacy, and educational services.” 469 F.3d at 132-33.
In contrast to the claims in Action Alliance and Abigail Alliance, NCL’s claim rests on
alleged harm to the general public, not to itself. NCL does not allege that General Mills’ conduct
has had any impact — much less a direct, adverse impact — on its activities as an organization.
Nor does NCL claim that due to General Mills’ labeling it has diverted resources and time from
fighting other bad actors or to educating the public to counteract the misinformation. Rather,
NCL has merely chosen to devote its resources to challenge General Mills’ conduct by filing this
4 suit, much like the “self-inflicted harm” of challenging a regulation. Abigail Alliance, 469 F.3d at
133. Challenging conduct like General Mills’ alleged mislabeling is the very purpose of consumer
advocacy organizations. As such, General Mills’ alleged conduct does not hamper NCL’s
advocacy effort; if anything it gives NCL an opportunity to carry out its mission.
Because NCL does not claim that General Mills’ conduct harmed NCL or inhibited its
activities, NCL does not have Article III standing to bring suit in this Court. See Center For
Science in the Public Interest v. Burger King Corp., 534 F. Supp. 2d 141, 143-144 (D.D.C. 2008)
(holding that where plaintiff organization “does not allege any personal or economic injury
suffered by itself or its members . . . [s]uch generalized grievances are insufficient to establish
constitutional standing for claims brought under DCCPPA.”).
B. Even If NCL Had Article III Standing, The Court Does Not Have Subject Matter Jurisdiction.
Even if the Court were to find that NCL has Article III standing, remand is proper because
the Court does not have subject matter jurisdiction. General Mills argues that the case is
removable to this Court under CAFA, or alternatively, pursuant to the Court’s diversity
jurisdiction. The Court is not persuaded.
1. NCL’s CPPA Suit Is Not A Class Action Under CAFA.
“Subject to certain limitations, the CAFA confers federal diversity jurisdiction over class
actions where the aggregate amount in controversy exceeds $5 million.” Exxon Mobil Corp. v.
Allapattah Servs., Inc., 545 U.S. 546, 571 (2005). General Mills contends that this Court has
original jurisdiction over NCL’s suit under CAFA because the suit is a “civil action filed under
Rule 23 of the Federal Rules of Civil Procedure or similar State statute or rule of judicial
5 procedure authorizing an action to be brought by 1 or more representative persons as a class
action.” 28 U.S.C. § 1332(d)(1)(B). According to General Mills, NCL’s claim meets CAFA’s
three requirements for removal: (a) a combined alleged claim of more than $5,000,000,
§ 1332(d)(6); (b) more than 100 alleged class members in the proposed class, § 1332(d)(5)(B);
and (c) diversity of citizenship, § 1332(d)(2)(A).
The Court finds instead that CAFA carves out an exception for private attorney general
suits like NCL’s. See Breakman v. AOL LLC, 545 F. Supp. 2d 96, 101 (D.D.C. 2008). CAFA
provides that a “mass action” that meets certain requirements shall be deemed to be a removable
class action, but “the term ‘mass action’ shall not include any civil action in which . . . all of the
claims in the action are asserted on behalf of the general public (and not on behalf of individual
claimants or members of a purported class) pursuant to a State statute specifically authorizing
such action,” 28 U.S.C. § 1332(11)(B)(ii)(3). NCL’s suit falls squarely under this exception: it is a
civil action in which the sole claim is asserted on behalf of the general public pursuant to a D.C.
Code provision that specifically authorizes such action. As such, it is not a mass action
removable under CAFA.
Moreover, the plain language of the CPPA expressly authorizes suits like NCL’s that are
brought on behalf of the general public without imposing any requirement that the suit meet the
strictures of Rule 23. See D.C. Code § 28-3095(k). In Breakman v. AOL LLC, the court was
presented with a similar motion to remand a CPPA suit to Superior Court. Finding that the
plaintiff did not attempt to comply with Superior Court Rule 23, had not sought to bring a class
action, and was not bringing suit either “in his individual capacity or as a class representative in a
6 class action,” the court held that “this representative action is authorized by District of Columbia
statute and is a separate and distinct procedural vehicle from a class action.” 545 F. Supp. 2d at
101.
To support its contention that NCL’s suit is properly removable as a class action, General
Mills argues that NCL’s CPPA claim can only be litigated as a class action. General Mills’ Notice
of Removal ¶ 12 (Although CPPA “authorizes a cause of action, that cause of action must be
litigated as a class action under the applicable procedure rules” because “Superior Court Rule 23,
modeled upon Federal Rule of Civil Procedure 23, is the only mechanism for bringing any class
or representative action in the District of Columbia.”). General Mills brings to the Court’s
attention a recent opinion of the District of Columbia Superior Court, Margolis v. U-Haul, Case
No. 2007 CA 005245 B (D.C. Super. Ct. Dec. 17, 2009), in which the court held that “Rule 23 of
the Superior Court Rules of Civil Procedure is applicable to claims for money damages brought
under the CPPA on behalf of third parties.” Id. at 15. Consequently, the court permitted the
plaintiff to maintain his CPPA claim for damages in his individual capacity and for injunctive
relief both in his individual capacity and as a private attorney general, but required him to comply
with Rule 23 for his CPPA claims for money damages on behalf of third parties. Id. at 3.
According to General Mills, NCL’s case is therefore properly removable under CAFA because,
as a suit seeking money damages on behalf of third parties, it must be brought under Rule 23.
Margolis is distinguishable from this case. As an initial matter, Margolis brought his
CPPA claim on his own behalf and “‘in a representative capacity for similarly situated purchasers
in the District of Columbia.” Id. at 2. The Superior Court acknowledged that a class action
brought on behalf of others similarly situated differs from a representative claim brought on
7 behalf of the general public. Margolis, slip. op. at 7 (stating that “[a] claim on behalf of ‘others
similarly situated’ is not the same as a claim made on behalf of the general public, and it therefore
is not at all clear that the language of the statute regarding representative claims is applicable to
the plaintiff’s damages claims here.”). For several reasons, the Court finds no inconsistency
between the ruling of the Superior Court that a claim for money damages brought on behalf of
others similarly situated must comply with Rule 23 and a determination that a private attorney
general claim brought on behalf of the general public – as here – does not.
First, the aforementioned exception to CAFA draws the same distinction between cases
brought on behalf of other individuals or a class of individuals as opposed to those brought on
behalf of the general public. See 28 U.S.C. § 1332(11)(B)(ii)(3) (providing that “the term ‘mass
action’ shall not include any civil action in which . . . all of the claims in the action are asserted on
behalf of the general public (and not on behalf of individual claimants or members of a purported
class) pursuant to a State statute specifically authorizing such action”). If a private attorney
general CPPA claim is not a mass action under CAFA, it follows that a plaintiff bringing such a
claim would not need to follow class action procedures. Unlike Breakman and NCL, by suing on
behalf of himself and others similarly situated, Margolis essentially brought a class action suit
even though he did not file it as such.
Second, the court finds significant the D.C. Court of Appeals’ holding in Grayson v,
AT&T Corp., 980 A.2d 1137 (D.C. 2009), that a private attorney general plaintiff need not suffer
an injury in fact to have standing to bring a CPPA claim on behalf of the general public.
Allowing a private attorney general plaintiff to bring suit even if he has not suffered any injury
does not square with the requirement of Rule 23 that “the claims or defenses of the representative
8 parties are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). Certainly, the
claims of a suing party who suffered no injury would never be typical of the class members’
claims. Moreover, Grayson did not bring his CPPA suit as a class action and the Court of
Appeals made no mention of Rule 23.1
Third, the Court finds that one of the Superior Court’s procedural due process concerns is
unfounded. In Margolis, the court reasoned that unless a CPPA plaintiff seeking money
damages was required to comply with Rule 23, there was a danger of windfall to the plaintiff
given the “absent third parties.” Id. at 8 (finding that “plaintiff’s interpretation [that compliance
with Rule 23 is not required] would permit a ‘person’ suing on behalf of the general public to
recover damages . . . owed to all affected ‘consumers.’). Under the CPPA, however, damages are
payable to the consumer, not to the “person” who brings the claim, including a “person” acting
as a private attorney general. Grayson, 980 A.2d at 1155 (finding that the Council intended,
under D.C.Code §28-3905(k)(1)(A), that any monetary remedy obtained by Mr. Grayson would
1 Margolis distinguished Grayson on the grounds that Grayson was a qui tam action on behalf of the District of Columbia and did not address the applicability of Rule 23 to purported representative claims for damages under the CPPA on behalf of third parties. Margolis, slip op. at 14. Grayson’s claim was brought on behalf of the general public, however, not D.C. 980 A.2d at 1154 & n.72 (holding that “the 2000 Amendments to the CPPA permit Mr. Grayson to pursue his CPPA claim on behalf of himself and the general public regardless of whether he has experienced an injury in fact . . . . Because we hold that an individual need not experience an injury to bring a claim under the CPPA, we will not address whether the CPPA also permits Mr. Grayson to bring suit on behalf of the district.”). And as a action on behalf of the general public, NCL’s claim more closely resembles Grayson’s than Margolis’s, which was not brought on behalf of the public by a non-injured plaintiff, but rather on behalf of himself and those similarly situated. Margolis, slip op. at 2.
9 be “‘payable to the consumer.’”). There is therefore no danger of a windfall to NCL or any
private attorney general plaintiff.
Finally, the D.C. Court of Appeals remarked in Grayson that
[T]he 2000 Amendment instructs that the District’s legislature amended the CPPA in part to “be construed and applied liberally to promote its purpose” which includes “assur[ing] that a just mechanism exists to remedy all improper trade practices and deter the continuing use of such practices[.]” If the Council had intended for the CPPA to have a narrower reach, it would not have eliminated, with its 2000 Amendment, language which expressly limited the persons permitted to bring claims.
980 A.2d at 1155 (footnotes omitted). To require a CPPA plaintiff to comply with Rule 23 would
not be a construction that would lead to liberal application of the CPPA to promote its purpose.
Rather, contrary to the goals of 2000 Amendment, requiring compliance with Rule 23 would
further limit the universe of plaintiffs permitted to bring claims and make it more difficult for
those plaintiffs to bring them. Consequently, the Court finds that, at least for CPPA claims
brought on behalf of the general public as here, plaintiffs need not comply with Rule 23.
Because NCL “does not bring this action as a class action pursuant to any statute or rule,
and because it does not fall within the definition of a mass action,” General Mills “cannot remove
this private attorney general suit to federal court pursuant to the Class Action Fairness Act.”
Breakman, 545 F. Supp. 2d at 102.
2. The Amount In Controversy Does Not Satisfy The Requirements For Diversity Jurisdiction.
General Mills argues that the amount in controversy in this suit “plainly exceeds $75,000,
exclusive of interest and costs” first because it sold more than 3 million boxes of Cheerios in the
fiscal year from June 2008 through May 2009 and NCL seeks statutory damages of $1,500 per
violation. Either additionally or alternatively, General Mills urges the Court to view the value of
10 the injunctive relief sought as the cost General Mills will incur if the relief is granted. Finally,
General Mills contends that the amount in controversy should include attorneys’ fees because the
CPPA authorizes the award of attorneys’ fees. None of these theories is supported by the law in
this district.
i. Aggregation of Damages
General Mills argues that the amount in controversy requirement can be met by
aggregating damages, claiming that “[t]here is no question that by enacting CAFA Congress
intentionally, and explicitly, modified the rule to permit aggregation of claims in representative
actions.” General Mills’ Opp’n at 19-20. In Breakman, the court rejected a similar attempt by a
defendant to aggregate the consumers’ damages to meet the amount in controversy. 545 F.
Supp. 2d at 103. The court held that even after CAFA, “the doctrine [of non-aggregation] still
applies when separate and distinct claims are asserted on behalf of a number of individuals,
regardless of ‘whether an action involves a simple joinder of multiple plaintiffs, [or] a
representative action’ similar to the one currently before this Court.” Id. (citing Snyder v. Harris,
394 U.S. 332, 335 (1969)); see also Reigner v. Ingersoll-Rand Co., 461 F. Supp. 2d 1, 1-3 (D.D.C.
2004) (holding that aggregation was not appropriate for amount in controversy analysis where
“suit seeks damages for individual consumers, not disgorgement” because “[i]t does not seek to
establish a joint or common right in a common fund”).2 Here, NCL’s claim for damages is not a
2 See also Nat’l Org. for Women v. Mutual of Omaha Ins. Co., 612 F. Supp. 100, 105 (D.D.C. 1985) (finding that courts have taken “an expansive view of aggregation” in cases involving “federal question jurisdiction when that jurisdiction still had an ‘amount in controversy’ component,” suggesting that “courts may well have been influenced by a desire to provide a federal forum for the vindication of federal rights” but “[t]here is no similar reason to view aggregation expansively when jurisdiction is based on diversity of citizenship;” and noting
11 common, undivided claim. To the contrary, CPPA provides that damages in a private attorney
general action are “payable to the consumer.” D.C. Code § 28-3905(k)(1)(A). Accordingly,
aggregation is not proper.
ii. Potential Cost Of Injunctive Relief
General Mills next urges the Court to consider the potential cost of the requested
injunctive relief. This argument is also unavailing. “To allow the defendant’s view test to be
used whenever injunctive relief is sought along with damages in a class action would undermine
the rule against aggregation.” Nat’l Org. for Women, 612 F. Supp. at 108 (holding that “viewing
the jurisdictional amount issue from the defendant’s point of view is simply another way of
aggregating claims which is what the Supreme Court disallowed in Snyder;” reasoning that
endorsing the cost-to-defendant view would allow a plaintiff with no claim for damages to satisfy
the amount in controversy requirement simply by requesting injunctive relief that would cost
more than $75,000); see also Breakman, 545 F. Supp. 2d at 105 (adopting the reasoning of Nat’l
Org. for Women; holding that “the cost-to-defendant test is inapplicable to the current diversity
action,” which is “consistent with the general rule that the proper measure of the amount in
controversy is from the perspective of the relief sought by the plaintiff.”).
General Mills cites Wexler v. United Air Lines, 496 F. Supp. 2d 150, 153-54 (D.D.C.
2007), for the proposition that “[t]he value of injunctive relief for determining the amount in
controversy can be calculated as the cost to the defendant.” Nevertheless, after stating that
general proposition, the court in Wexler went on to hold that defendant United Air Lines’ claim
that “this court is to construe its diversity jurisdiction narrowly” and lower courts should not broaden the narrow exceptions to the law against aggregation of damages).
12 that complying with an injunction would cost more than $75,000 lacked evidentiary support. Id.
Similarly, even if viewing the amount in controversy as the cost to defendants were proper,
General Mills’ contention is too speculative. General Mills speculates not only about the type of
injunctive relief plaintiff will seek, but how much that relief would cost. Notice of Removal ¶
15(b) (“NCL does not specify the injunctive relief that it seeks, but to the extent that relief
requires the removal of boxes of store shelves, the expense to General Mills would exceed
$75,000.”).
iii. Potential Amount of Attorneys’ Fees and Costs
Finally, General Mills argues that because CPPA would permit NCL to recover attorneys’
fees and costs if it were to prevail, the Court should find that the amount in controversy is met.
General Mills’ estimates that “[u]sing a conservative estimate of $250 per hour of attorney time,
Plaintiff’s attorneys only need to record 300 hours to this matter to reach $75,000 in
controversy . . .” Notice of Removal ¶ 15(d). As the court held in Breakman, this argument
misfires for several reasons. First, this kind of conclusory guesswork about potential attorneys’
fees is too speculative. Breakman, 545 F. Supp. 2d at 107 (“Numerous courts have held that a
‘defendant's conjecture regarding the possible amount of fees is inadequate to support an
assertion of diversity jurisdiction.’”) (citing cases).
Second, like aggregation of damages, aggregation of attorneys’ fees is not appropriate in a
CPPA case. See Breakman, 545 F. Supp. 2d at 107 (holding that “[b]ecause this Court strictly
construes the scope of its removal jurisdiction, and because the non-aggregation principle
logically should extend to claims of attorneys’ fees . . . attorneys’ fees should be apportioned
13 among all of the consumer plaintiffs”); Nat’l Org. for Women, 612 F. Supp. at 109
(“conclud[ing] that the amount of requested attorneys’ fees cannot be aggregated for determining
the jurisdictional amount”).
Finally, as a policy matter, it is the Court’s view that allowing attorneys’ fees to satisfy the
amount of controversy could encourage defendants to remove cases improperly simply to
increase plaintiffs’ fees and costs and thereby support removal. See Breakman, 545 F. Supp. 2d
at 107 (stating that “the Court is not entirely comfortable with the premise that an action should
be retained in federal court where satisfaction of the amount in controversy requirement depends
upon a lump sum award of attorneys’ fees.”); Srour v. Barnes, 670 F. Supp. 18, 22 (D.D.C. 1987)
(finding that “as a policy matter, allowing attorney fees to constitute the matter in controversy
would hinge federal jurisdiction on the fee schedules of lawyers instead of the weight of the
substantive issue before the court.”).
Because NCL’s claim does not meet the amount in controversy requirement, the Court
does not have diversity jurisdiction.
C. The Award of Attorneys’ Fees and Costs Is Not Appropriate
Under 28 U.S.C. § 1447(c), a district court “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 “absent unusual circumstances, attorney’s fees should not be awarded when the
removing party has an objectively reasonable basis for removal.” Martin v. Franklin Capital
Corp., 546 U.S. 132, 136 (2005). Where non-removability is obvious or contrary to well-settled
law, courts regularly award costs and expenses incurred as a result of the removal. Knop v.
14 Mackall, 640 F. Supp. 2d 58, 62 (D.D.C. 2009); Johnson-Brown v. 2200 M. St. LLC, 257 F. Supp.
2d 175, 181 (D.D.C. 2003) (citing Garcia v. Amfels, Inc., 254 F.3d 585, 588 (5th Cir. 2001)).
General Mills’ contention that NCL has organizational standing and subject matter
jurisdiction are contrary to other decisions in this district, but there is no D.C. Circuit law
foreclosing its arguments. See Breakman, 545 F. Supp. 2d at 108 (declining to award attorneys
fees and costs because as AOL argued “‘there is no clear, controlling case law’ from the D.C.
Circuit, which explains how a representative action under the DCCPPA should be treated for
purposes of 28 U.S.C. § 1332.”). Because General Mills’ removal of this action was not contrary
to well-settled law or binding authority, the award of fees and costs to NCL is not appropriate.
III. CONCLUSION
For the foregoing reasons, the Court concludes that NCL’s Emergency Motion to
Remand [#16] should be granted. An appropriate order accompanies this memorandum.
January 15, 2010 Henry H. Kennedy, Jr. United States District Judge