Case 3:21-cv-06002-JCS Document 1 Filed 08/03/21 Page 1 of 10
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`MAYER BROWN LLP
`DALE J. GIALI (SBN 150382)
`dgiali@mayerbrown.com
`KERI E. BORDERS (SBN 194015)
`kborders@mayerbrown.com
`REBECCA B. JOHNS (SBN 293989)
`rjohns@mayerbrown.com
`350 South Grand Avenue, 25th Floor
`Los Angeles, CA 90071-1503
`Telephone:
`(213) 229-9500
`Facsimile:
`(213) 625-0248
`Attorneys for Defendants
`CAMPBELL SOUP COMPANY
`AND PEPPERIDGE FARM, INC.
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`
`DENISE CLEVELAND AND LANNA
`RAINWATER, on behalf of themselves and all
`others similarly situated,
`
`Plaintiffs,
`
`v.
`CAMPBELL SOUP COMPANY AND
`PEPPERIDGE FARM, INC.,
`
`Defendants.
`
`Case No. 4:21-cv-06002
`(Alameda Superior Court Case No. RG
`21101115)
`NOTICE OF PETITION FOR REMOVAL
`BY DEFENDANTS CAMPBELL SOUP
`COMPANY AND PEPPERIDGE FARM,
`INCORPORATED PURSUANT TO
`28 U.S.C. §§ 1332, 1441 1446, AND 1453
`JURY TRIAL DEMANDED
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`TO THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
`DISTRICT OF CALIFORNIA AND TO PLAINTIFFS AND THEIR COUNSEL OF
`RECORD:
`PLEASE TAKE NOTICE that Defendants Campbell Soup Company and Pepperidge
`Farm, Incorporated, through their undersigned counsel, hereby remove Cleveland et al. v.
`Campbell Soup Company, et al., Case No. RG 21101115, from the Superior Court of the State of
`California in and for the County of Alameda, to the United States District Court for the Northern
`District of California, pursuant to 28 U.S.C. § 1441 governing the removal of civil actions and §
`1453 governing the removal of class actions. Removal to the Northern District of California is
`based on federal diversity jurisdiction under the diversity jurisdiction requirements of the Class
`Action Fairness Act, 28 U.S.C. § 1332(d)(2). As required by 28 U.S.C. § 1446(a), process,
`pleadings, and orders served in the action to date are attached to the Declaration of Dale J. Giali
`(“Giali Decl.”). Pursuant to 28 U.S.C. § 1446(a), Defendants provide the following short and
`plain statement of the grounds for removal.
`I.
`INTRODUCTION
`1.
`On May 26, 2021, Plaintiffs Denise Cleveland and Lanna Rainwater filed a
`putative class action complaint in the Alameda County Superior Court against Campbell Soup
`Company and Pepperidge Farm, Incorporated, entitled Cleveland et al. v. Campbell Soup
`Company, et al., Case No. RG 21101115.
`2.
`On June 16, 2021, Defendants received a Notice and Acknowledgement of
`Receipt from plaintiffs dated June 15, 2021. Giali Decl. at ¶ 9. On July 6, 2021, Defendants
`signed and returned the notice. Id. In accordance with 28 U.S.C. § 1446(a), true and correct
`copies of “all process, pleadings, and orders” served on the removing defendants in this action
`are attached hereto. Specifically:
` The Class Action Complaint, attached to the Giali Decl. at Ex. 1;
` The Civil Case Cover Sheet, attached to the Giali Decl. at Ex. 2;
` The Civil Case Cover Sheet Addendum, attached to the Giali Decl. at Ex. 3;
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` The Attachment to the Civil Case Cover Sheet, attached to the Giali Decl. at Ex.
`4;
` The Summons, attached to the Giali Decl. at Ex. 5; and
` All other documents on file in the Superior Court, including the Notice of
`Assignment of Judge for All Purposes and Notice of Case Management
`Conference, attached to the Giali Decl. at Ex. 6.
`
`Id. at ¶¶ 3-8.
`Plaintiffs are consumers who allegedly purchased various Goldfish brand snack
`3.
`crackers manufactured, distributed, labeled, and advertised by Pepperidge Farm. Compl. at ¶¶
`12-13. Plaintiffs contend that the Goldfish are deceptively labeled as containing “0g Sugars”
`when in fact they are not a low or significantly reduced calorie food, or are not for weight
`control, and do not display a warning to that effect. Id. at ¶¶ 1-3. Plaintiffs contend that they
`relied on the “0g Sugars” statement when purchasing Goldfish, and that the statement caused
`them to believe Goldfish is lower in calories in comparison to other products. Id. at ¶¶ 12-13.
`4.
`Plaintiffs seek to represent the following putative nationwide class:
`
`All persons who purchased Goldfish labeled as having 0g Sugar outside the
`Nutrition Fact Panel in the United States within the applicable statute of
`limitations.
`Id. at ¶ 59.
`Plaintiffs also seek to represent putative classes of California and New York
`5.
`consumers who purchased Goldish labeled as having 0g Sugar. Id.
`6.
`Plaintiffs assert seven causes of action: (a) violation of California’s Consumer
`Legal Remedies Act (“CLRA”), Cal. Civ. Code §§ 1750, et seq.; (b) violation of California’s
`False Advertising Law (“FAL”), Cal. Bus. & Prof. Code §§ 17500, et seq.; (c) violation of
`California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code §§ 17200, et seq.; (d)
`violation of New York’s General Business Law § 349; (e) violation of New York’s General
`Business Law § 350; (f) restitution based on quasi contract/unjust enrichment; and (g) breach of
`express warranty. Compl. at ¶¶ 73-169.
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`As set forth herein, based on the allegations of the Complaint and other evidence
`7.
`collected by Defendants, this Court has subject matter jurisdiction under the Class Action
`Fairness Act, 28 U.S.C § 1332(d). Therefore, this action may be removed to this Court, pursuant
`to 28 U.S.C. § 1441.
`8.
`Defendants have not answered the Complaint in Alameda County Superior Court
`prior to removal, and Defendants are not aware of any further proceedings or filings regarding
`this action in that court. Giali Decl. at ¶ 10.
`II.
`REMOVAL IS PROPER UNDER CAFA
`9.
`“[A]ny civil action brought in a State court of which the district courts of the
`United States have original jurisdiction, may be removed by the … defendants, to the district
`court of the United States for the district and division embracing the place where such action is
`pending.” 28 U.S.C. § 1441(a); see also id. § 1453(b).
`10.
`CAFA confers district courts with original jurisdiction over a putative class action
`if the number of members of all proposed plaintiff classes aggregates to 100 or more, the
`aggregate amount in controversy exceeds $5 million exclusive of interest and costs, and “any
`member of [the] class of plaintiffs is a citizen of a State different from any defendant.” Id. §
`1332(d)(2); see also id. § 1332(d)(5)(B). Although the burden rests on the removing party to
`demonstrate that CAFA’s jurisdictional requirements are met, the party opposing jurisdiction
`under CAFA bears the burden of demonstrating that any exception to CAFA jurisdiction applies.
`Serrano v. 180 Connect, Inc., 478 F.3d 1018, 1021-22 (9th Cir. 2007). This action satisfies each
`of CAFA’s requirements.
`A.
`This Is A Covered Class Action
`11.
`CAFA defines a “class action” as “any civil action” filed under a “State statute or
`rule of judicial procedure” that, “similar” to Federal Rule of Civil Procedure 23, authorizes “an
`action to be brought by 1 or more representative persons as a class action.” Id. § 1332(d)(1)(B).
`12.
`This action meets CAFA’s definition of a class action. Plaintiffs purport to bring
`this action on behalf of “all others similarly situated,” and identify putative classes of
`nationwide, California, and New York consumers who purchased Goldfish. Compl. at ¶ 59.
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`Plaintiffs bring these claims pursuant to California’s class action statute, Cal. Civ. Proc. Code §
`382, and allege that each of the class-action requirements is met. Compl. at ¶¶ 59, 62-72
`B.
`The Proposed Class Exceeds 100 Members
`13.
`For purposes of removal, the Court looks to a plaintiff’s allegations respecting
`class size. See Kuxhausen v. BMW Fin. Servs. NA LLC, 707 F.3d 1136, 1140 (9th Cir. 2013).
`14.
`Plaintiffs purport to bring a claim on behalf of “[a]ll persons who purchased
`Goldfish labeled as having 0g Sugar outside the Nutrition Fact Panel in the United States . . .”
`Compl. at ¶ 59. Plaintiffs allege that “the proposed Classes contain thousands of purchasers of
`Goldfish . . .” Id. at ¶ 62; see Roppo v. Travelers Com. Ins. Co., 869 F.3d 568, 581 (7th Cir.
`2017) (“[The defendant] may rely on the estimate of the class number set forth in the
`complaint.”). Accordingly, the number of members of all proposed plaintiff classes in the
`aggregate exceeds the 100-member requirement. See 28 U.S.C. § 1332(d)(5)(B).
`C.
`The Parties Are Minimally Diverse
`15.
`CAFA’s minimal diversity requirement is met if “any member of [the] class of
`plaintiffs” is “a citizen of a State different from any defendant.” 28 U.S.C. § 1332(d)(2)(A). A
`class member is any person “who falls[] within the definition” of the proposed class. Id. § 1332
`(d)(1)(D).
`Plaintiffs are citizens of California and New York. Compl. at ¶¶ 12-13. And the
`16.
`putative classes are defined to include consumers nationwide, as well as subclasses for California
`and New York consumers. Id. at ¶ 59. At a minimum, the putative class likely includes at least
`one California citizen, and at least one New York citizen. See Rosas v. Carnegie Mortg., LLC,
`2012 WL 1865480 at *5 (C.D. Cal. May 21, 2012) (“Because the complaint alleges a nationwide
`class, minimal diversity necessarily exists.”).
`17.
`Under CAFA, both corporations and unincorporated associations are deemed to
`be citizens of the states where they are incorporated or organized, and where they have their
`principal places of business. 28 U.S.C. § 1332(c)(1), (d)(10). The phrase “principal place of
`business” “refers to the place where the corporation’s high level officers direct, control, and
`coordinate the corporation’s activities.” Hertz Corp. v. Friend, 559 U.S. 77, 80 (2010). This is
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`the corporation’s “nerve center.” Id. at 81. This “should normally be the place where the
`corporation maintains its headquarters.” Id. at 93. Pepperidge Farm, Incorporated is a
`Connecticut corporation with its principal place of business in Norwalk, Connecticut. Compl. at
`¶ 14. Campbell Soup Company is a New Jersey corporation with its principal place of business
`in Camden, New Jersey. Id. at ¶ 15.
`18.
`Because plaintiffs are citizens of California and New York, and because
`Defendants are citizens of Connecticut and New Jersey, the parties are at least minimally diverse.
`D.
`The Aggregate Amount In Controversy Exceeds $5 Million
`19.
`Under CAFA, the claims of the individual class members are aggregated to
`determine if the amount in controversy exceeds the required “sum or value of $5,000,000,
`exclusive of interest and costs.” 28 U.S.C. §§ 1332(d)(2), (d)(6). When a defendant removes an
`action pursuant to CAFA, the “defendant’s notice of removal need include only a plausible
`allegation that the amount in controversy exceeds the jurisdictional threshold” of $5 million.
`Dart Cherokee Basin Operating Co. v. Owens, 574 U.S. 81, 89 (2014) (emphasis added).1
`20.
`To determine the amount in controversy, the Court must assume that the
`allegations in the operative pleading are true and that a jury will return a verdict for the plaintiff
`on all such claims. See Cain v. Hartford Life & Accident Ins. Co., 890 F. Supp. 2d 1246, 1249
`(C.D. Cal. 2012) (“The ultimate inquiry is what amount is put ‘in controversy’ by the plaintiff’s
`complaint, not what a defendant will actually owe.”) (emphasis omitted). A “removing defendant
`is not obligated to ‘research, state, and prove plaintiff’s claims for damages.’” Korn v. Polo
`Ralph Lauren Corp., 536 F. Supp. 2d 1199, 1204-05 (E.D. Cal. 2008) (emphasis omitted).
`Defendants may rely on “reasonable assumptions” in calculating the amount in controversy for
`removal purposes. Arias v. Residence Inn by Marriott, 936 F.3d 920, 922 (9th Cir. 2019).
`21.
`Although Defendants deny all allegations of wrongdoing and state that plaintiffs’
`claims are meritless, plaintiffs seek, amongst other things, restitution or restitutionary
`
`1 “Evidence establishing the amount is required by [28 U.S.C.] § 1446(c)(2)(B) only when the
`plaintiff contests, or the court questions, the defendant’s allegation.” Dart, 574 U.S. at 89.
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`disgorgement, compensatory damages, statutory damages, statutory penalties, punitive damages,
`and attorneys’ fees, which well exceed the $5 million jurisdictional threshold.
`22.
`First, compensatory damages and restitution or restitutionary disgorgement are in
`excess of $5 million. Plaintiffs request “[r]estitution in such amount that Plaintiffs and all
`members of the Classes paid to purchase Defendants’ Goldfish or paid as a premium over
`alternatives, or restitutionary disgorgement of the profits Defendants obtained from those
`transactions, for Causes of Action for which they are available,” and “[c]ompensatory damages
`for Causes of Action for which they are available.” Compl. at Prayer for Relief, (B), (C).
`Plaintiffs challenge at least sixteen varieties of Goldfish crackers. See Compl. at ¶ 1, n.1.
`Moreover, plaintiffs claim that they would not have purchased Goldfish at all had they known
`that they are not low or reduced calorie products. Id. at ¶¶ 12-13. Plaintiffs further claim that
`other consumers would not have purchased Goldfish for the same reason. Id. at ¶ 88. Thus,
`pursuant to plaintiffs’ allegations, the amount in controversy can be determined by aggregating
`the total revenue derived from the sale of the sixteen Goldfish products nationwide during the
`class period. During the class period, gross revenue from the sale of those products has been well
`in excess of $5 million.
`23.
`Second, attorneys’ fees are counted in evaluating the amount in controversy. See
`Guglielmino v. McKee Foods Corp., 506 F.3d 696, 700 (9th Cir. 2007). These fees “can exceed
`six figures in a class action and are properly aggregated and considered for purposes of
`determining the amount in controversy under CAFA.” Federico v. Home Depot, 507 F.3d 188,
`197 (3d Cir. 2007).
`24.
`Plaintiffs’ Complaint raises complex factual and legal issues. If the case were to
`proceed to discovery, it is likely that disputes would arise as to the proper breadth and scope of
`discovery to be permitted. It is thus clear that litigating this case to a resolution on the merits
`would require substantial time and effort by plaintiffs’ counsel.
`25.
`Finally, punitive damages are counted in evaluating the amount in controversy.
`Rippee v. Boston Mkt. Corp., 408 F. Supp. 2d 982, 984 (S.D. Cal. 2005) (“The calculation of the
`amount in controversy takes into account claims for ‘general’ damages, ‘special’ damages,
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`punitive damages if recoverable as a matter of law, and attorneys’ fees recoverable by statute or
`contract.”). Plaintiffs seek punitive damages. Compl. at Prayer for Relief (F).
`26.
`Taken together, the amount in controversy in this action exceeds $5 million.
`E.
`No Exception To Defeat CAFA Applies
`27.
`Neither CAFA’s “local controversy” nor its “home state” exceptions apply to this
`case. For the home state exception to apply, all primary defendants must be citizens of the state
`in which the case is filed. 28 U.S.C. § 1332(d)(4)(B); see also Corsino v. Perkins, 2010 WL
`317418, at *5 (C.D. Cal. Jan. 19, 2010). Similarly, for the local controversy exception to apply,
`at least one defendant must be a citizen of California, and that defendant’s conduct must form a
`significant basis for the claims asserted by the proposed plaintiff class. 28 U.S.C. §
`1332(d)(4)(i)(II). Neither defendant is a citizen of California, so neither exception applies.
`28. Moreover, the local controversy exception does not apply when the principal
`injury alleged is one that occurred throughout the country, not just in the state where the case
`was filed, as is the case here. 28 U.S.C. § 1332(d)(4)(A)(i)(III); see also Waller v. Hewlett-
`Packard Co., 2011 WL 8601207, at *4 (S.D. Cal. May 10, 2011). Goldfish are sold nationwide
`and the labels and ingredient formulation for the products is the same throughout the United
`States. Indeed, plaintiffs allege a nationwide class. This demonstrates that this controversy is not
`truly local in nature, and that the principal injury is nationwide.
`III.
`COMPLIANCE WITH OTHER REMOVAL REQUIREMENTS
`
`Removal Is Timely
`A.
`This Notice of Removal is timely because Defendants filed it within 30 days of
`29.
`being served with the Complaint. See 28 U.S.C. § 1446(b)(1) (requiring, as relevant here, that a
`notice of removal of a civil action be filed within 30 days after the defendant receives, “through
`service or otherwise,” a copy of the summons and complaint); see also Murphy Bros., Inc. v.
`Michetti Pipe Stringing, Inc., 526 U.S. 344, 348 (1999) (clock for removal not triggered by
`“mere receipt of the complaint unattended by any formal service”); Giali Decl. at ¶ 9.
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`Venue Is Proper
`B.
`Under 28 U.S.C. § 1441(a), venue is proper in the United States District Court for
`30.
`the Northern District of California because this Court embraces the Alameda County Superior
`Court, where this action was pending.
`
`Notice To Plaintiffs And State Court
`C.
`Pursuant to 28 U.S.C. § 1446(d), Defendants are serving written notice of the
`31.
`removal of this case on plaintiffs’ counsel:
`Wyatt A. Lison
`wlison@fdpklaw.com
`Joseph N. Kravec, Jr.
`jkravec@fdpklaw.com
`Feinstein Doyle Payne & Kravec, LLC
`429 Fourth Avenue, Suite 1300
`Pittsburgh, PA 15219
`Tel : (412) 281-8400
`Fax : (412) 281-1007
`
`Daniel L. Warshaw
`dwarshaw@pswlaw.com
`Pearson, Simon & Warshaw, LLP
`15165 Ventura Blvd., Suite 400
`Sherman Oaks, CA 91403
`Tel: (818) 788-8300
`Fax: (818) 788-8104
`
`Melissa S. Weiner
`mweiner@pswlaw.com
`Pearson, Simon & Warshaw, LLP
`800 LaSalle Avenue, Suite 2150
`Minneapolis, MN 55402
`Tel : (612) 389-0600
`Fax : (612) 389-1610
`Pursuant to 28 U.S.C. § 1446(d), Defendants will promptly file a Notice of
`32.
`Removal Filing with the Clerk of the Superior Court of California, County of Alameda.
`
`All Defendants Consent To Removal
`D.
`Both named defendants in this action consent to removal and sign this Notice of
`33.
`Removal. Even if both defendants did not consent, CAFA permits any defendant without consent
`of any other defendant to remove this case to federal court. See 28 U.S.C. § 1453(b).
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`IV.
`
`RESERVATION OF RIGHTS
`34.
`By removing this matter, Defendants do not waive and, to the contrary, reserve
`any rights they may have, including, without limitation, all available arguments and affirmative
`defenses. Defendants do not concede that class certification is appropriate or that plaintiffs are
`entitled to any recovery whatsoever. However, the question is not whether class certification is
`appropriate or whether plaintiffs will recover any amount for any particular time period. “The
`amount in controversy is simply an estimate of the total amount in dispute, not a prospective
`assessment of defendant’s liability.” Lewis v. Verizon Commc’ns, Inc., 627 F.3d 395, 400 (9th
`Cir. 2010).
`In the event that plaintiffs file a request to remand, or the Court considers remand
`35.
`sua sponte, Defendants respectfully request the opportunity to submit additional argument and/or
`evidence in support of removal.
`V.
`CONCLUSION
`36. WHEREFORE, Defendants respectfully request that their Notice of Removal be
`deemed good and sufficient and for this Court to exercise subject matter jurisdiction over this
`removed action.
`
`Dated: August 3, 2021
`
`MAYER BROWN LLP
`Dale J. Giali
`Keri E. Borders
`Rebecca B. Johns
`
`by: /s/ Dale J. Giali
`Dale J. Giali
`Attorneys for Defendants
`CAMPBELL SOUP COMPANY AND
`PEPPERIDGE FARM, INC.
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