Case 1:21-cv-02065 Document 1 Filed 07/30/21 Page 1 of 22
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`FOOD & WATER WATCH,
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`Plaintiff,
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`Civil Action No.
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`v.
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`SMITHFIELD FOODS, INC.,
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`Defendant.
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`NOTICE OF REMOVAL
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`PLEASE TAKE NOTICE that, pursuant to 28 U.S.C. §§ 1331, 1332, 1441, and 1446,
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`Defendant Smithfield Foods, Inc. (“Smithfield”), by its undersigned counsel, hereby invokes this
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`Court’s jurisdiction and removes the state court action described below from the Superior Court
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`of the District of Columbia, Civil Division, to the United States District Court for the District of
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`Columbia based on two independent grounds: (1) diversity jurisdiction pursuant to 28 U.S.C. §
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`1332(a), and (2) jurisdiction pursuant to the Class Action Fairness Act (“CAFA”), 28 U.S.C. §
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`1332(d). In this notice of removal, Smithfield provides the required “short and plain statement of
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`the grounds for removal.” Dart Cherokee Basin Operating Co., LLC v. Owens, 135 S. Ct. 547,
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`553 (2014). “[A] defendant’s notice of removal need only include a plausible allegation that the
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`amount in controversy exceeds the jurisdictional threshold.” Id. at 89. That requirement is
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`satisfied here.
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`I.
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`PROCEDURAL HISTORY
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`1.
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`On June 16, 2021, Plaintiff Food & Water Watch (“FWW” or “Plaintiff”) filed
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`this action in the Superior Court of the District of Columbia, Civil Division, in a case captioned
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`Case 1:21-cv-02065 Document 1 Filed 07/30/21 Page 2 of 22
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`Food & Water Watch v. Smithfield Foods, Inc., Case No. 2021 CA 002020 B (the “State Court
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`Action”).
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`2.
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`Smithfield was served with a copy of the Complaint on June 30, 2021. Pursuant to
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`28 U.S.C. § 1446(a), a true and correct copy of the summons, Complaint, all documents filed
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`with the Superior Court of the District of Columbia, and the Superior Court Docket Report are
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`attached as Exhibit A.
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`3.
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`Pursuant to 28 U.S.C. § 1446(a), Smithfield will promptly give written notice of
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`this Notice of Removal to FWW and file a copy of the same with the Clerk of the Superior Court
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`of the District of Columbia, Civil Division.
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`4.
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`The Complaint alleges violations of the D.C. Consumer Protection Procedures
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`Act (“CPPA”), D.C. Code § 28-3901 et seq. Specifically, the Complaint alleges that during the
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`early days of the COVID-19 pandemic, in early 2020, Smithfield made misleading statements
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`about “the state of the national meat supply chain and the company’s workplace safety
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`practices.” Compl. at ¶ 1.
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`5.
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`For example, the Complaint claims that Smithfield made misrepresentations in
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`newspaper articles, through social media, and on the internet that “a countrywide meat shortage
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`was imminent” in order to “juic[e] demand and sales” and to create “a false justification to keep
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`its slaughterhouses operating at full tilt[.]” Id. at ¶ 4.
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`6.
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` Similarly, the Complaint alleges that Smithfield “misrepresented working
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`conditions in its plants” to allay “concerns for worker safety” and to promote Smithfield’s
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`“marketing and branding efforts during the pandemic.” Id. at ¶ 5.
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`7.
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`The Complaint alleges that “FWW was injured by Smithfield’s conduct” because
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`it “spent considerable time and resources investigating the truth of Smithfield’s claims” and
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`“educat[ing] its members, consumers and the general public” about whether there were meat
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`shortages in 2020 and whether Smithfield was adequately protecting its workers from exposure
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`to COVID-19 at that time. Id. at ¶¶ 90-102.
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`8.
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`The Complaint further alleges that, because Smithfield’s statements are still on
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`the internet and Smithfield has not retracted those statements, FWW will have to spend
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`“additional resources correcting the company’s misrepresentations and counteracting the
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`company’s claims[.]” Id. at ¶¶ 103-05.
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`9.
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`The Complaint explicitly identifies no less than nine alleged violations of the
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`CPPA.1 See id. at ¶ 110(a)-(i) (“Smithfield has violated the CPPA by engaging in the following
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`unfair and deceptive trade practices…”).
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`A.
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`10.
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`FWW’s Individual Claims and Requests for Relief.
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`The Complaint alleges that FWW is a “non-profit organization” within the
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`meaning of D.C. Code § 28-3901(14) and that FWW is bringing an action as a non-profit
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`organization “on behalf of itself” pursuant to D.C. Code §28-3905(k)(1)(C). Compl. ¶¶ 112-13,
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`117.
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`11.
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`The Complaint seeks a declaration that Smithfield’s statements violated the
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`CPPA, statutory damages, punitive damages, attorneys’ fees, expert fees, and prejudgment
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`interest awarded to FWW in its own name, and injunctive relief, including corrective
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`advertising, intended to prevent ongoing injury to FWW. Id. at ¶¶ 114, 117-18 and Prayer for
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`Relief.
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`1 Smithfield does not concede, and explicitly denies, that FWW is entitled to any relief. But a
`plaintiff’s claim “whether well or ill-founded in fact, fixes the right of the defendant to
`remove[.]” St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 294 (1938).
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`B.
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`12.
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`FWW’s Representative Claims.
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`The Complaint alleges that FWW, as a non-profit organization, also seeks relief
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`on behalf of the general public pursuant to D.C. Code § 28-3905(k)(1)(C). Compl. ¶¶ 113, 117.
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`Although the Complaint does not clearly specify what relief FWW is seeking on behalf of the
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`general public, the Complaint can be fairly read to seek statutory and punitive damages—in
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`addition to declaratory and injunctive relief—on behalf of the general public. Id. at ¶ 118 and
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`Prayer for Relief.
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`13.
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`In addition, the Complaint alleges that FWW is a “public interest organization”
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`within the meaning of D.C. Code § 28-3901(15) and that it seeking to bring a claim on behalf of
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`“District consumers.” Id. at ¶¶ 112, 116-17. Section 28-3905(k)(1)(D) permits public interest
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`organizations to bring claims on behalf of a “consumer or class of consumers” if certain criteria
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`are met. Here, the Complaint purports to assert CPPA claims on behalf of an undefined class of
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`consumers. Although the Complaint does not specify what relief FWW is seeking on behalf of
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`this class, the Complaint can be fairly read to seek statutory and punitive damages—in addition
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`to declaratory and injunctive relief—on behalf of the class. Id. at ¶ 118 and Prayer for Relief.
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`14.
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`As explained more fully below, this case is properly removed to this Court
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`because the Court has diversity jurisdiction over this civil action pursuant to 28 U.S.C. §§
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`1332(a), 1441, and 1446. Further, to the extent this action seeks damages on behalf of the general
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`public or a class of consumers, the Court also has jurisdiction over the State Court Action
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`pursuant to CAFA, such that this action may be removed to this Court under 28 U.S.C. §§
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`1332(d) and 1441. Furthermore, this removal is proper because this Notice of Removal was
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`timely filed pursuant to 28 U.S.C. § 1446(b)(3) and Smithfield has satisfied the procedural
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`requirements for removal.
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`II. GROUNDS FOR REMOVAL
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`A.
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`15.
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`This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332(a).
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`“[A]ny civil action brought in State court of which the district courts of the United
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`States have original jurisdiction, may be removed by the defendant…” 28 U.S.C. § 1441(a). This
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`Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1332(a) in that (1) it
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`is a civil action between citizens of different states, and (2) the amount in controversy exceeds
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`the sum or value of $75,000, exclusive of interests and costs.
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`1. There is complete diversity between the parties.
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`16.
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`For purposes of jurisdiction under 28 U.S.C. § 1332(a) and removal under 28
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`U.S.C. § 1441(a), the diversity of citizenship requirement is met when all persons on one side of
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`the litigation are citizens of different states from all persons on the other side of the litigation.
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`Strawbridge v. Curtiss, 7 U.S. 267 (1806).
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`17.
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`For diversity purposes, the citizenship of a corporation—including a non-profit
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`corporation—is the state where the corporation is incorporated and the state where the
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`corporation has its principal place of business. See Wachovia Bank, N.A. v. Schmidt, 546 U.S.
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`303, 306 (2006).
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`18.
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`According to the Complaint, FWW is, and at the time the Complaint was filed
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`was, a non-profit corporation incorporated under the laws of Washington D.C. and had its
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`principal place of business in Washington D.C. See Compl. at ¶ 13. FWW is therefore a citizen
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`of Washington D.C. for purposes of federal diversity jurisdiction.
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`19.
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`Smithfield is, and at the time the Complaint was filed was, a corporation
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`incorporated under the laws of Delaware and having its principal place of business in Virginia.
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`See Compl. at ¶ 18. Smithfield is therefore a citizen of Delaware and Virginia for purposes of
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`federal diversity jurisdiction.
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`20.
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`By virtue of the above, there is complete diversity of citizenship between FWW, a
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`citizen of Washington D.C., and Smithfield, a citizen of Delaware and Virginia.
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`2. The amount in controversy is satisfied in this case.
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`21.
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`Courts consider several categories of relief in determining the amount in
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`controversy in a CPPA action like this one. These categories of relief include statutory and
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`punitive damages, attorneys’ fees and expert fees, and the cost of injunctive relief, and such
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`amounts “should be added together” to determine whether the amount in controversy
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`requirement has been met. See Bradford v. George Wash. Univ., 249 F. Supp. 3d 325, 334
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`(D.D.C. 2017) (adding regular damages, treble damages, punitive damages, and attorneys’ fees
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`to meet amount in controversy requirement in CPPA case); Parker-Williams v. Charles Tini &
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`Assoc., Inc., 53 F. Supp. 3d 149, 153-54 (D.D.C. 2014); Zuckman v. Monster Beverage Corp.,
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`958 F. Supp. 2d 293, 297 (D.D.C. 2013); M3 USA Corp. v Haunert, No. 20-cv-3784 (DLF),
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`2021 WL 1894847 (May 11, 2021); Sloan v. Soul Circus, Inc., 2015 WL 9272838, at *7 (D.D.C.
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`Dec. 18, 2015).
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`22.
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`In this action, FWW purports to seek (1) a declaration that Smithfield’s conduct
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`violated the CPPA; (2) injunctive relief enjoining Smithfield’s conduct found to be in violation
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`of the CPPA and requiring Smithfield to engage in corrective advertising; (3) statutory damages;
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`(4) punitive damages; (5) attorneys’ fees, experts’ fees, and costs; and (6) any other equitable
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`relief approved by the Court. Compl. at ¶¶ 10, 117-18, Prayer for Relief. For the reasons
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`explained below, the value of the relief sought in this action by FWW in its own name and/or for
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`its sole benefit is in excess of $75,000 when the various types of requested relief are added
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`together.
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`a. Attorneys’ and Expert Fees.
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`i. The Total Attorneys’ Fees That FWW Seeks in Its Own Name Will
`Exceed the Amount in Controversy Requirement.
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`The Complaint seeks an award of attorneys’ fees and expert fees to FWW in its
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`23.
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`individual capacity. See Compl., Prayer for Relief (seeking an order “granting FWW costs,
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`including reasonable attorneys’ fees and expert fees”).
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`24.
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`FWW does not seek an award of attorneys’ fees or expert fees on behalf of or in
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`the name of the general public or a class of consumers.
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`25.
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`Thus, all attorneys’ fees and expert fees should be allocated to FWW in its
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`individual capacity. Zuckman , 958 F. Supp. 2d 297, 301 (D.D.C. 2013) (noting that the court
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`may consider relief “to which [plaintiff] would be personally entitled” in determining the amount
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`in controversy, including the plaintiff’s “share of the total [attorney’s] fees”); Cf. Breakman v.
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`AOL LLC, 545 F. Supp. 2d 96, 107 (D.D.C. 2008) (decided under prior version of CPPA and
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`holding that attorney’s fees in CPPA could only be allocated to plaintiff on a pro rata basis
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`because “he is not bringing this action in his individual capacity”) (emphasis added)..
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`26.
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`27.
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`In this case, attorneys’ and expert fees alone will exceed $75,000.
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`CPPA cases of a much smaller scale than this one frequently produce more than
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`$75,000 in attorneys’ fees alone. See, e.g., Beck v. Test Masters Edu. Serv., Inc., 73 F. Supp. 3d
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`12, 20 (D.D.C. 2014) (granting fee petition in CPPA case for $854,623.90 in attorneys’ fees); In
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`re InPhonic, Inc., 674 F. Supp. 2d 273, 290 (D.D.C. 2009) (awarding plaintiffs in CPPA case
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`$483,753.37 in attorneys’ fees and costs); Williams v. First Gov’t Mortg. & Investors Corp., 225
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`F. 3d 738, 747 (holding that attorneys’ fee award of $199,340 under the CPPA was reasonable
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`even though it was disproportionate to the damages award).
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`28.
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`Counsel for FWW (Public Justice, formerly known as Trial Lawyers for Public
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`Justice) also routinely seek attorneys’ fees and expert fees in similar types of cases amounting to
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`well over $75,000, based on hourly rates ranging from $250 to $550. See Community Assoc. for
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`Restoration of the Enviro., Inc. v. Cow Palace, LLC, Nos. 13-CV-3016-TOR, 13-CV-3017-TOR,
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`13-CV-3019-TOR,2016 WL 3582754, at *3, *18 (E.D. Wash. Jan 12, 2016) (Public Justice
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`seeking attorneys’ fees of $3,587,615.50 and expert fees for $542,088.60, and noting rates of
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`Washington D.C.-based Public Justice attorneys); Barrett v. West Chester Univ. of Penn. of State
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`System of Higher Edu., 636 F. Supp. 2d 439, 442 (E.D. Penn. 2009) (Public Justice seeking
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`attorneys’ fees for $207,609.50 after only nine months of litigation).
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`29.
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`Based on the breadth of the allegations in the Complaint, it is a virtual certainty
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`that FWW’s attorneys’ fees and expert fees will exceed $75,000.
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`ii. FWW’s Attorneys’ Fees and Expert Fees for Its Organizational CPPA
`Claim Will Exceed the Amount in Controversy Requirement.
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`Courts considering the propriety of removal in CPPA cases consider the impact of
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`30.
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`a plaintiff’s role as the initial and seminal plaintiff when bringing a CPPA case in its
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`representative capacity. In such circumstances, courts consider the plaintiff’s individual, non-
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`aggregated share of any potential recovery by estimating the portion “properly attributed to [the
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`plaintiff] in his role as the initial plaintiff.” Zuckman, 958 F. Supp. 2d at 301 (considering the
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`statutory damages, injunctive relief, and attorney’s fees “to which [plaintiff] would be personally
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`entitled” in determining the amount in controversy).
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`31.
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`32.
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`Here, FWW is the initial and seminal plaintiff.
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`Further, FWW is asserting an organizational injury in its own name that is
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`materially different from the alleged injuries it claims the general public and consumers suffered.
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`Specifically, FWW alleges the challenged statements injured the organization by “frustrat[ing]
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`FWW’s mission of increased transparency” and “holding agribusiness organizations
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`accountable,” which required FWW to “divert staff time and resources away” from other
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`activities. Compl. at ¶ 103. In contrast, FWW alleges that the challenged statements injured
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`consumers by influencing them to buy more Smithfield products (i.e. economic harm) and
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`misleading them about the risk of meat shortages and Smithfield’s work safety practices. Id. at ¶
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`14. The alleged injuries to consumers are separate and distinct from the alleged injury to FWW.
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`33.
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`34.
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`FWW is not a consumer.
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`FWW does not allege that it received the challenged statements in the District or
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`that it was misled by them.
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`35.
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`Rather, FWW is asserting a claim in its own name under D.C. Code § 28-
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`3905(k)(1)(C). This means that FWW is claiming that it suffered an “organizational” injury as a
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`result of the challenged statements.
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`36.
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`To demonstrate standing to assert an organizational injury, FWW must plead and
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`prove that: (1) a direct conflict exists between Smithfield’s statements and FWW’s mission; (2)
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`the conduct is inhibiting the organization’s daily operations; and (3) the organization is being
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`forced to divert resources to counteract the conduct. See Food & Water Watch, Inc. v. Vilsack,
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`808 F.3d 905, 919-20 (D.D.C. 2015); Am. Soc. for Prevention of Cruelty to Animals v. Feld
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`Entertainment, Inc., 659 F.3d 13, 25-26 (D.D.C. 2011). FWW must satisfy each of these
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`elements to bring a cause of action for, or seek relief in, its own name.
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`37.
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`FWW’s is not bringing its organizational injury claim on behalf of the general
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`public. Nor will the public’s interest be affected by the determination of whether or not FWW
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`suffered an organizational injury.
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`38.
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`At a minimum, FWW’s attorneys’ fees and expert fees incurred in litigating its
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`own organizational injury claim cannot be allocated to the general public or consumers.
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`39.
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`FWW’s attorneys’ fees and expert fees incurred in litigating its own
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`organizational injury claim will exceed $75,000.
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`40.
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`41.
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`This is illustrated by similar CPPA claims brought by FWW’s counsel.
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`For example, in a case captioned Animal Legal Defense Fund v. Hormel Foods
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`Corp., Superior Court of the District of Columbia, Civil Division, Case No. 2016 CA 004744 B,
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`Animal Legal Defense Fund (“ALDF”) asserted organizational injuries and claims similar to the
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`ones alleged by FWW in this case, by alleging that Hormel’s “Natural Choice” advertising
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`caused an organizational injury to ALDF.
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`42.
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`Although ALDF defeated an initial motion to dismiss based on lack of standing,
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`upon summary judgment, the D.C. Superior Court dismissed ALDF’s case for lack of standing
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`because it had failed to present sufficient evidence of its allegations of organizational injury. To
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`reach that outcome in the case, the parties incurred legal fees doing all of the following:
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`a. Conducting written discovery, including the production of thousands of
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`documents related to ALDF’s organizational injury claims, and ALDF’s
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`preparation and production of a detailed privilege log;
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`b. Depositions of four ALDF employees and complete a Rule 30(b)(6) deposition of
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`ALDF; and
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`c. Filing and responding to detailed cross-motions for summary judgment, which
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`included creating a significant record and briefing on standing.
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`43.
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`In resolving the question of ALDF’s organizational standing, ALDF’s attorneys
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`were required to devote hundreds of hours of time (or more) to address whether ALDF had
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`standing to assert an organizational injury (and the court ultimately concluded it did not). Even
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`applying a conservative estimate of 500 hours spent by ALDF’s attorneys litigating the question
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`of standing at a rate of $300 per hour, this means ALDF incurred $150,000 in attorneys’ fees
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`related solely to litigating whether it had standing to assert claims based on an organizational
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`injury.
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`44.
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`Based on the above, Smithfield reasonably believes that similar costs will be
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`incurred to litigate the question of whether FWW has organizational standing, an issue that has
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`been raised, litigated, and declared to be lacking, in other cases brought by FWW before this
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`Court. See, e.g., Food & Water Watch v. Vilsack, 79 F. Supp. 3d 174, 199-200 (D.D.C. 2015)
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`(concluding that FWW did not have standing to assert claims, similar to the ones made here, of
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`organizational injury based on FWW’s alleged need “to expend additional resources on activities
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`such as educating its members and the public”).
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`45.
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` These attorneys’ fees that will be spent litigating the organizational standing
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`question cannot be allocated to the general public or to District consumers because these fees are
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`attributable solely to litigation activities unique to FWW’s individual claims. Cf. Zuckman, 958
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`F. Supp. 2d at 301.
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`46.
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`Based on FWW’s role as the seminal plaintiff in this case, the clear pattern of
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`CPPA and Public Justice cases awarding or seeking far more than $75,000, and the FWW-
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`specific fees that will be amassed based on its allegations of organizational injury and standing
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`alone, the FWW-specific attorneys’ fees in this case are virtually assured to exceed the
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`jurisdictional threshold of 28 U.S.C. § 1332(a). See Zuckman, 958 F. Supp. 2d at 301; Dart, 135
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`S. Ct. at 554 (“a defendant’s notice of removal need include only a plausible allegation that the
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`amount in controversy exceeds the jurisdictional threshold”).
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`b. Statutory and Punitive Damages
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`47.
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`In addition to attorneys’ fees, FWW is also seeking statutory and punitive
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`damages. Compl. at ¶¶ 10, 118.
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`48. With regard to statutory damages, FWW’s individual, non-aggregated statutory
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`damages amount to at least $13,500. More specifically, D.C. Code indicates that, under the
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`CPPA, a plaintiff may recover “[t]reble damages, or $1,500 per violation, whichever is greater.”
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`D.C. Code Ann. § 28-3905(k)(2)(A)(ii) (emphasis added). FWW’s Complaint explicitly
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`identifies no less than nine alleged violations of the CPPA. See Compl. at ¶ 110(a)-(i)
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`(“Smithfield has violated the CPPA by engaging in the following unfair and deceptive trade
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`practices…”); see also Cannon v. Wells Fargo Bank, N.A., 908 F. Supp. 2d 110, 113-14 (D.D.C.
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`2012) (calculating amount in controversy based on ten violations alleged in complaint multiplied
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`by $1,500). At $1,500 per violation, FWW’s alleged statutory damages therefore amount to at
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`least $13,500, which may be added to FWW’s shares of injunctive relief, punitive damages, and
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`attorney’s fees. Zuckman, 958 F. Supp. 2d at 297 (noting that with regard to statutory damages,
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`attorney’s fees, injunctive relief, and restitution, “the amounts sought should be added
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`together.”).
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`49. Moreover, and based on the statutory-damages calculations above, even a 4:1
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`ratio of punitive damages to statutory damages would amount to over $60,000 in statutory and
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`punitive damages specific to FWW alone. It is also likely that FWW will argue that a higher
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`punitive damages award is appropriate if the statutory damages award is small.
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`c. Cost of Injunctive Relief
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`50.
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`In addition to seeking attorneys’ fees, statutory damages, and punitive damages,
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`FWW seeks injunctive relief related to corrective advertising.
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`51.
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`Jurisdiction exists when the cost to a defendant of complying with the requested
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`injunction exceeds $75,000. See, e.g., GEO Specialty Chems., Inc. v. Husisian, 951 F. Supp. 2d
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`32, 39-40 (D.D.C. 2013); Breathe DC v. Santa Fe Natural Tobacco Co., 232 F. Supp. 3d 163,
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`169 (D.D.C. 2017) (noting that the court was following circuit precedent by considering the cost
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`of compliance to the defendant). The cost to Smithfield of complying with the corrective
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`advertising requested by FWW would far exceed $75,000.
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`52.
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`Here, FWW is seeking injunctive relief in its own name to prevent FWW from
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`“expend[ing] additional resources correcting the company’s misrepresentations and
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`counteracting the company’s claims.” Compl. at ¶ 105. Thus, the sweeping injunctive relief
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`FWW seeks is uniquely tied to the work FWW alleges to have done including, but not limited to,
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`“investigating and debunking” Smithfield’s advertising, “correcting the company’s
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`misrepresentations,” submitting Freedom of Information Act requests, and coordinating “public
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`messaging efforts.” See id. at ¶¶ 96, 104-05, 114. FWW alone stands to benefit from the
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`injunctive relief it seeks.
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`53.
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`This is particularly true because all of the statements that FWW challenges are
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`stale. Indeed, the Complaint identifies a minimum of twenty specific messages that FWW alleges
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`violate the CPPA and should be subjected to corrective advertising. All of the statements FWW
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`challenges published anywhere from eleven to sixteen months ago or pertain to issues related to
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`the pandemic during that time frame. These specific messages include: (1) an April 12, 2020
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`press release; (2) a March 19, 2020 Facebook post; (3) a March 19, 2020 Twitter post; (4) an
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`April 17, 2020 Facebook post; (5) an April 17, 2020 Twitter post; (6) an August 2, 2020 ad in the
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`Washington Post; (7) an August 2, 2020 ad in the New York Times; (8) a “COVID Website”
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`created in September 2020; (9) a “Health & Safety Website;” (10) a “Exports Website;” (11) an
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`Case 1:21-cv-02065 Document 1 Filed 07/30/21 Page 14 of 22
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`April 25, 2020 Facebook post; (12) an April 25, 2020 Twitter Post; (13) a “Response Website;”
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`(14) a “PPE Website;” (15) a PPE information-related video available on the “PPE Website;”
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`(16) an April 30, 2020 Facebook post; (17) an April 30, 2020 Twitter post; (18) a May 12, 2020
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`Facebook post; (19) a May 12, 2020 Twitter post; and (20) Smithfield’s 2020 Sustainability
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`Report. See id. at ¶¶ 29-35, 42, 52-54, 59.
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`54.
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`These statements generally fall into two categories. First, some of these
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`statements, made in the spring and summer of 2020, relate to whether the United States would be
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`at risk of meat shortages if all meat processing plants were shut down due to COVID-19. Given
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`the widespread availability of vaccines, changing health and regulatory environments, and the
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`lifting of federal and state restrictions, FWW does not and cannot allege that consumers believe
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`there is an ongoing risk that meat producers will be shut down or that there will be a resultant
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`shortage of meat available for purchase. It follows that consumers are not basing purchasing
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`decisions now and in the future on alleged misunderstandings about past threats to the meat
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`supply that were based on exceptionally different knowledge and circumstances during that
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`phase of the pandemic.
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`55.
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`A forward-looking injunction requiring Smithfield to retract or correct stale
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`statements will therefore benefit no one other than FWW, whose alleged organizational injury
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`stems from “significant time and resources” allegedly expended, and to be expended, by FWW
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`as an organization “to counteract false narratives peddled by industrial meat production
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`companies” about whether there was a risk of meat shortages in 2020. Id. at ¶ 17.
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`56.
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`Smithfield reasonably believes that it would cost over $75,000 to issue the type of
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`“corrective advertising” FWW previews in its Complaint related to Smithfield’s’ prior
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`statements about potential meat shortages. This includes the development of a corrected
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`Case 1:21-cv-02065 Document 1 Filed 07/30/21 Page 15 of 22
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`message, actual content development, money needed to take out advertisements online and in
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`print, time and money needed to re-develop already-existing websites, etc. E.g., Breathe DC, 232
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`F. Supp. 3d at 170 (crediting the defendant’s contention that costs of corrective advertising
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`would exceed $200,000); Food & Water Watch, Inc. v. Tyson Foods, Inc., 2020 WL 1065553, at
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`*5 (D.D.C. Mar. 5, 2020) (similar corrective advertising costs to exceed $400,000).
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`57.
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`The same principles also apply to FWW’s request for corrective advertising
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`related to the messaging surrounding the adequacy of Smithfield’s worker safety measures
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`during the height of the pandemic. At this point in time, vaccines are widely available and have
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`been widely distributed nationwide, and states have largely eliminated emergency COVID-19
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`precautions.
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`58.
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`FWW does not and cannot allege that Smithfield’s current worker safety practices
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`related to COVID-19, let alone the messaging associated with such safety practices, are
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`inadequate. Rather, FWW’s suggestion that consumers are looking up or relying on statements
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`about worker safety that Smithfield made during the height of the pandemic is grossly
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`speculative. Thus, once again, FWW’s request for an injunction that orders corrective advertising
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`on this topic serves to benefit only FWW, which claims that it had to devote resources to
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`investigating and countering narratives about worker safety during the height of the pandemic.
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`Id. at ¶ 17.
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`59.
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`Based on the above, Smithfield reasonably estimates that it will cost over $75,000
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`to issue the type of corrective advertising FWW previews in its Complaint related to COVID-19
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`and worker safety because, as described supra, at paragraph 51, any corrective advertising
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`campaign would require a substantial amount of time and money to develop a corrected message,
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`develop actual content, take out advertisements online and in print, and re-develop the workers’
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`Case 1:21-cv-02065 Document 1 Filed 07/30/21 Page 16 of 22
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`safety-related websites with which FWW takes issue.
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`60.
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`Taken in combination with the cost of corrective advertising related to meat
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`supply shortages discussed above, the cost to Smithfield of injunctive relief amounts to at least
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`$150,000.
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`61.
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`Even if corrective advertising is not limited solely to remedying FWW’s alleged
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`organizational injuries, the cost of complying with the injunctive relief should be apportioned
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`accordingly based on the connection between the corrective advertising sought by FWW and the
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`unique injuries FWW alleges to have sustained. Specifically, the cost of complying with the
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`injunctive relief requested here should be apportioned in a way that acknowledges the increased
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`value to FWW of injunctive relief over other District consumers who have not taken any action
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`to address Smithfield’s messaging. See, e.g., Zuckman, 958 F. Supp. 2d at 301-02
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`(acknowledging multiple methods for apportioning costs of injunctive relief, and declining to
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`apportion attorney’s fees pro rata so as to “strike[] a proper balance” that “ensur[es] that
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`[plaintiff’s] expenditures…are not undervalued or diluted.”).
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`62.
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`The cost of attorneys’ and expert fees, statutory and punitive damages, and
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`injunctive relief that must be allocated to FWW, when added together, exceeds the $75,000
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`jurisdictional threshold for the reasons discussed above. This amount in controversy requirement
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`for diversity jurisdiction pursuant to 28 U.S.C. § 1332(a) is therefore satisfied.
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`63.
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`Because there is complete diversity amongst the parties in this case and the
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`amount in controversy exceeds $75,000, this Court has subject matter jurisdiction pursuant to 28
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`U.S.C. § 1332(a).
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`Case 1:21-cv-02065 Document 1 Filed 07/30/21 Page 17 of 22
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`B.
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`64.
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`Alternatively, the Court has subject matter jurisdiction pursuant to CAFA
`and 28 U.S.C. § 1332(d).
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`In addition to asserting claims on its own behalf, FWW purports to bring this
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`action “on behalf of the general public and interests of District consumers.” Compl. at ¶ 117.
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`65.
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`In addition to seeking damages for itself, based on FWW’s own allegations, the
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`Complaint can plausibly be read as seeking damages on behalf of a class of District consumers.
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`See, e.g., id. at ¶ 10 (noting request for injunctive relief, statutory damages, punitive damages,
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`fees and costs, and other equitable relief and stating “FWW…brings this case to hold Smithfield
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`accountable under the CPPA for these consumer deceptions”); ¶¶ 36-37, 47 (alleging that
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`Smithfield’s messaging affected consumer purchasing); ¶ 118 (generally seeking statutory and
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`punitive damages).
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`66.
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`67.
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`Thus, in the alternative, this court also has jurisdiction pursuant to CAFA.
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`The District of Columbia Court of Appeals has held that CPPA actions that seek
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`damages and are brought on behalf of the general public are subject to the “framework long
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`established by [Superior Court] Rule [of Civil Procedure] 23 to govern representative suits in the
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`Superior Court.” Rotunda v. Marriot Intern., Inc., 123 A.3d 980, 982 (D.C. 2015); see also Smith
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`v. Abbott Laboratories, Inc., No. 16-501 (RJL), 2017 WL 3670194, at *2 (D.D.C. Mar. 31, 2017)
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`(“Rotunda held that DCCPPA representative actions for money damages must comply with Rule
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`23”) (emphasis added).
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`68.
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`Congress enacted CAFA to “facilitate adjudication of certain class actions in
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`federal court.” Dart, 135 S