Case: 19-16696, 03/09/2020, ID: 11623775, DktEntry: 21, Page 1 of 63
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`
`No. 19-16696
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`_________________________________________
`
`FRIENDS OF THE EARTH and CENTER FOR FOOD SAFETY,
`Plaintiffs-Appellants,
`
`v.
`
`SANDERSON FARMS, INC.,
`Defendant-Appellee.
`
`________________
`
`On Appeal from the United States District Court
`for the Northern District of California
`No. 3:17-cv-03592-RS
`________________
`
`ANSWERING BRIEF FOR APPELLEE
`________________
`
`
`
`GREGG F. LOCASCIO
`MICHAEL A. GLICK
`PAUL J. WEEKS
`ERIN E. CADY
`KIRKLAND & ELLIS LLP
`1301 Pennsylvania Avenue, N.W.
`Washington, DC 20004
`(202) 389-5000
`michael.glick@kirkland.com
`
`Counsel for Defendant-Appellee
`
`
`
`
`
`March 9, 2020
`
`
`
`

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`CORPORATE DISCLOSURE STATEMENT
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`Pursuant to Federal Rule of Appellate Procedure 26.1, Defendant-Appellee
`
`Sanderson Farms, Inc. certifies that it does not have a parent corporation and no
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`publicly held corporation owns 10 percent or more of its stock.
`
`
`
`
`
`i
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`

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`TABLE OF CONTENTS
`
`INTRODUCTION ................................................................................................... 1
`
`STATEMENT OF JURISDICTION ..................................................................... 3
`
`STATEMENT OF THE ISSUES ........................................................................... 3
`
`STATEMENT OF THE CASE AND THE FACTS .............................................. 4
`
`A.
`
`B.
`
`The Parties .......................................................................................... 4
`
`The Lawsuit ......................................................................................... 4
`
`C. Appellants’ Standing Allegations and the Evidence
`Revealed in Discovery ........................................................................ 7
`
`D.
`
`E.
`
`Sanderson’s Motion to Dismiss under Rule 12(h)(3) .................... 15
`
`The District Court’s Order .............................................................. 16
`
`STANDARD OF REVIEW ................................................................................... 18
`
`SUMMARY OF ARGUMENT ............................................................................. 20
`
`ARGUMENT ......................................................................................................... 22
`
`I.
`
`The District Court Correctly Held that Appellants Did Not
`Divert Resources as a Result of Sanderson’s Advertising. ..................... 22
`
`A.
`
`The District Court’s Factual Findings as to Appellants’
`Claimed Diversions Were Eminently Correct. .............................. 23
`
`1.
`
`2.
`
`Activities Appellants undertook before learning of
`the challenged advertisements cannot constitute
`resource diversions. ................................................................ 23
`
`the
`learning of
`Appellants’ activities after
`challenged advertising were merely a continuation
`of their usual business. ........................................................... 25
`
`ii
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`3.
`
`It is undisputed that Appellants’ post-lawsuit
`activities cannot constitute Article III injury. ..................... 33
`
`B.
`
`The District Court Properly Considered Appellants’
`Declarations. ..................................................................................... 34
`
`II.
`
`The District Court Properly Considered Appellants’ Standing to
`Bring Their UCL Claim. ............................................................................ 41
`
`A. Appellants’ UCL Claim Is Based on Sanderson’s Allegedly
`False Advertising. ............................................................................. 42
`
`B.
`
`C.
`
`Appellants’ Prior Admissions Confirm Their UCL Claim
`Was Based on False Advertising. .................................................... 47
`
`if Appellants Asserted a Claim Based on
`Even
`Sanderson’s Practices—Which They Have Not—the
`Cited Evidence Would Not Establish an Article III
`Diversion. ........................................................................................... 51
`
`CONCLUSION ...................................................................................................... 53
`
`
`
`iii
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`

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`
`TABLE OF AUTHORITIES
`
` Page(s)
`
`Cases
`Adler v. Fed. Republic of Nigeria,
`107 F.3d 720 (9th Cir. 1997) ........................................................................ 36, 39
`Am. Diabetes Ass’n v. U.S. Dep’t of the Army,
`938 F.3d 1147 (9th Cir. 2019) .....................................................................passim
`Baccei v. United States,
`632 F.3d 1140 (9th Cir. 2011) ............................................................................ 50
`Candelore v. Tinder, Inc.,
`228 Cal. Rptr. 3d 336 (Cal. Ct. App. 2018) ........................................................ 46
`CDN Inc. v. Kapes,
`197 F.3d 1256 (9th Cir. 1999) ............................................................................ 40
`David H. Tedder & Assocs., Inc. v. United States,
`77 F.3d 1166 (9th Cir. 1996) .............................................................................. 29
`Deland v. Old Republic Life Ins. Co.,
`758 F.2d 1331 (9th Cir. 1985) ............................................................................ 50
`Fair Hous. Council of San Fernando Valley v. Roommate.com, LLC,
`666 F.3d 1216 (9th Cir. 2012) ............................................................................ 26
`FTC v. Dantuma,
`748 F. App’x 735 (9th Cir. 2018) ................................................................. 50, 51
`FTC v. Publ’g Clearing House, Inc.,
`104 F.3d 1168 (9th Cir. 1997) ...................................................................... 36, 39
`Hinojos v. Kohl’s Corp.,
`718 F.3d 1098 (9th Cir. 2013) ............................................................................ 45
`Kennedy v. Allied Mut. Ins. Co.,
`952 F.2d 262 (9th Cir. 1991) .............................................................................. 19
`Kingman Reef Atoll Invs., L.L.C. v. United States,
`541 F.3d 1189 (9th Cir. 2008) ...................................................................... 19, 35
`iv
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`

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`La Asociacion de Trabajadores de Lake Forest v. City of Lake Forest,
`624 F.3d 1083 (9th Cir. 2010) ............................................................................ 33
`Leite v. Crane Co.,
`749 F.3d 1117 (9th Cir. 2014) ............................................................................ 18
`Lujan v. Defenders of Wildlife,
`504 U.S. 555 (1992) ............................................................................................ 18
`Monsanto Co. v. Geertson Seed Farms,
`561 U.S. 139 (2010) ............................................................................................ 33
`Nat’l Council of La Raza v. Cegavske,
`800 F.3d 1032 (9th Cir. 2015) ............................................................................ 25
`Parsons v. Ryan,
`949 F.3d 443 (9th Cir. 2020) .............................................................................. 29
`Piveg, Inc. v. Gen. Star Indem. Co.,
`710 F. App’x 776 (9th Cir. 2018) ................................................................. 38, 39
`Rattlesnake Coal. v. EPA,
`509 F.3d 1095 (9th Cir. 2007) ............................................................................ 18
`Rich v. Shrader,
`823 F.3d 1205 (9th Cir. 2016) ............................................................................ 50
`Robinson v. United States,
`586 F.3d 683 (9th Cir. 2009) .............................................................................. 18
`Rodriguez v. City of San Jose,
`930 F.3d 1123 (9th Cir. 2019) ...................................................................... 22, 27
`Safe Air for Everyone v. Meyer,
`373 F.3d 1035 (9th Cir. 2004) ............................................................................ 18
`Scamihorn v. Gen. Truck Drivers,
`282 F.3d 1078 (9th Cir. 2002) ............................................................................ 36
`Schoenberg v. Exportadora de Sal, S.A. de C.V.,
`930 F.2d 777 (9th Cir. 1991) .............................................................................. 29
`
`v
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`

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`
`Smith v. Marsh,
`194 F.3d 1045 (9th Cir. 1999) ............................................................................ 50
`Smith v. Pac. Props. & Dev. Corp.,
`358 F.3d 1097 (9th Cir. 2004) ............................................................................ 22
`Thornhill Publ’g Co. v. Gen. Tel. & Elecs. Corp.,
`594 F.2d 730 (9th Cir. 1979) .............................................................................. 35
`United States v. Hinkson,
`585 F.3d 1247 (9th Cir. 2009) ............................................................................ 20
`United States v. Hughes Aircraft Co.,
`162 F.3d 1027 (9th Cir. 1998) ...................................................................... 19, 29
`United States v. Kama,
`394 F.3d 1236 (9th Cir. 2005) ............................................................................ 33
`United States v. Molina,
`596 F.3d 1166 (9th Cir. 2010) ............................................................................ 40
`United States v. Students Challenging Regulatory Agency Procedures (SCRAP),
`412 U.S. 669 (1973) ........................................................................................ 6, 31
`United States v. Washington,
`969 F.2d 752 (9th Cir. 1992) .............................................................................. 39
`Wood v. City of San Diego,
`678 F.3d 1075 (9th Cir. 2012) ............................................................................ 18
`Yeager v. Bowlin,
`693 F.3d 1076 (9th Cir. 2012) .....................................................................passim
`Statutes
`Cal. Bus. & Prof. Code § 17200, et seq. ...........................................................passim
`Cal. Bus. & Prof. Code § 17500, et seq. ...........................................................passim
`Rules
`Fed. R. Civ. P. 12 ..............................................................................................passim
`Fed. R. Civ. P. 30 ..............................................................................................passim
`
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`INTRODUCTION
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`Appellants’ opening brief is an attempt at revisionist history. After two years
`
`of proceedings and extensive discovery before the district court, Appellants now
`
`attempt to re-cast their organizational activities, the claims asserted in this litigation,
`
`and the grounds for the district court’s dismissal. The Court should squarely reject
`
`those efforts and affirm the district court’s manifestly correct decision.
`
`In June 2017, the Appellant advocacy organizations brought this false
`
`advertising case against Sanderson Farms—one of the nation’s leading poultry
`
`producers—challenging a variety of statements on Sanderson’s website, television
`
`commercials, and other media. Across four iterations of their complaint, Appellants
`
`alleged Article III standing based on a supposed diversion of resources to counteract
`
`those ads. But discovery proved otherwise—Appellants never engaged in activities
`
`or diverted resources because of the challenged advertising. Instead, the discovery
`
`record was devoid of any evidence that Appellants acted to address Sanderson’s
`
`advertising (short of filing and promoting their lawsuit), and Appellants conceded
`
`that their general advocacy efforts were not made because of Sanderson’s ads. At
`
`bottom, the record demonstrated that Appellants had not suffered an injury in fact at
`
`all—much less one that was traceable to the challenged Sanderson advertising.
`
`Sanderson therefore moved to dismiss for lack of subject matter jurisdiction
`
`pursuant to Federal Rule of Civil Procedure 12(h)(3) after the close of fact discovery.
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`
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`

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`In a well-reasoned opinion, the district court marched chronologically through the
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`evidentiary record, rebutting at every turn Appellants’ arguments for why they
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`allegedly suffered a diversion-of-resources injury traceable to Sanderson’s
`
`advertising, and, ultimately, dismissing their claims for lack of standing. Two
`
`organizational-standing decisions issued by this Court in recent months only
`
`reinforce the district court’s reasoning.
`
`Unable to identify any factual or legal error in the district court’s analysis,
`
`Appellants now change their story on appeal. Notwithstanding their numerous
`
`representations to the district court that their claims were based on Sanderson’s
`
`allegedly false advertising, Appellants now argue (for the very first time) that their
`
`California Unfair Competition Law claim was actually based on Sanderson’s
`
`husbandry practices, not its advertising. In doing so, Appellants ignore that the entire
`
`basis for their “unfair competition” claim below was Sanderson’s allegedly false
`
`advertising itself—that such advertising supposedly misled the public about the
`
`nature of Sanderson’s chicken products and chicken-raising practices. Indeed, in
`
`opposing the very motion about which they now appeal, Appellants told the district
`
`court: “The question is whether the false advertising frustrated Plaintiffs’ missions
`
`and whether Plaintiffs diverted resources as a result of the false advertising.”
`
`2
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`

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`ER 081.1 Now that the district court has resolved that question against them,
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`Appellants present an entirely new theory of standing on appeal. Even if Appellants’
`
`new theory were sufficient to afford them standing (and it is not), the Court need not
`
`consider such a belated argument at this stage.
`
`The Court should affirm the district court’s dismissal.
`
`STATEMENT OF JURISDICTION
`
`Sanderson agrees with Appellants’ statement of this Court’s jurisdiction.
`
`STATEMENT OF THE ISSUES
`
`1. Whether the district court correctly determined that, given all of the
`
`evidence presented (including post-discovery declarations that contradicted the
`
`evidentiary record), Appellants failed to prove that they diverted resources as a result
`
`of the challenged Sanderson advertising, and therefore lacked Article III standing.
`
`2. Whether the district court erred by finding that Appellants lack standing
`
`without explicitly addressing their unfair competition claim, when such claim is
`
`based entirely on the allegedly false advertising (which the court considered at
`
`length), and Appellants themselves argued to the district court that the relevant
`
`standing question is whether they diverted resources as a result of the challenged
`
`Sanderson advertising.
`
`
`1 “ER” refers to Appellants’ Excerpts of Record. “SER” refers to Appellee’s
`Supplemental Excerpts of Record.
`
`3
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`

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`STATEMENT OF THE CASE AND THE FACTS
`
`A. The Parties
`Sanderson Farms, Inc. (“Sanderson”) is the third largest poultry producer in
`
`the United States. Sanderson produces, processes, markets, and distributes fresh and
`
`frozen chicken products to grocery-store retailers, restaurant chains, and other
`
`purchasers throughout the nation. See ER 437-38.
`
`Appellants Friends of the Earth (“FoE”) and the Center for Food Safety
`
`(“CFS”) (together, “Appellants”) are advocacy organizations with missions that
`
`include educating the public “about the impact of meat consumption and production,
`
`especially related to the issue of antibiotics and other harmful chemicals in animal
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`products,” ER 402 (Third Am. Compl. (“TAC”) ¶ 16 (describing the work of FoE)),
`
`and engaging in “policy work and litigation challenging the use of pharmaceuticals
`
`and chemicals in industrial animal agriculture,” ER 404 (TAC ¶ 19 (describing the
`
`work of CFS)); see also ER 402-06 (TAC ¶¶ 17, 20-21, 23).
`
`B.
`The Lawsuit
`On June 22, 2017, Appellants sued Sanderson, asserting claims under two
`
`California laws—the False Advertising Law (“FAL”), California Bus. & Prof. Code
`
`§ 17500, et seq., and the Unfair Competition Law (“UCL”), California Bus. & Prof.
`
`4
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`Code § 17200, et seq. SER 1-36.2 Although Appellants later amended their
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`complaint three times—twice voluntarily and once following the district court’s
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`dismissal of their claims with leave to amend—the crux of Appellants’ lawsuit has
`
`always been that Sanderson’s marketing of its chicken as “100% Natural” allegedly
`
`does not comport with its production and processing practices. See, e.g., ER 399
`
`(TAC ¶¶ 3-4). Indeed, the opening paragraph of the operative complaint makes clear
`
`that “Plaintiffs . . . bring this civil action for declaratory and equitable relief under
`
`[the UCL] and [FAL] challenging Defendant Sanderson’s advertising of its
`
`Chicken Products as ‘100% Natural.’” ER 399 (TAC ¶ 1) (emphasis added).3
`
`Specifically, Appellants alleged that Sanderson’s “100% Natural” marketing and
`
`advertising “scheme” “falsely and misleadingly suggests” to consumers “that its
`
`process and resulting product meet reasonable consumer expectations for ‘natural’
`
`poultry,” ER 399 (TAC ¶ 5), and that Sanderson’s processes and product do not meet
`
`those expectations, ER 400 (TAC ¶ 6).
`
`During the course of these proceedings, Appellants have consistently
`
`reiterated that their claims are based on Sanderson’s allegedly false advertising.
`
`
`2 A third advocacy organization, the Organic Consumers Association, originally
`served as the lead plaintiff in the case, but voluntarily dismissed its claims on
`July 18, 2018.
`3 Unless otherwise noted, references to the “Complaint” shall refer to the operative
`Third Amended Complaint.
`
`5
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`For instance, on the day they filed their lawsuit, Appellants issued a press release
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`titled “Nonprofits Sue Third-Largest Poultry Co. for False Advertising of Drug-
`
`Contaminated Chicken,” announcing that they had sued Sanderson “for falsely
`
`advertising products that contain a wide range of unnatural and in some cases
`
`prohibited substances, as ‘100% Natural.’” SER 167-68 (emphases added); see also,
`
`e.g., SER 38-39, 50-51 (similar description in multiple Joint Case Management
`
`Statements). After Sanderson moved to dismiss the Complaint pursuant to Rule
`
`12(b)(6), Appellants opposed the motion and described their suit as “challeng[ing]
`
`Sanderson’s representations that its process for creating its chicken products and
`
`the products themselves are ‘100% Natural,’” arguing that “by advertising its
`
`products as ‘100% Natural,’ Sanderson violates the FAL and UCL.” SER 46-47
`
`(emphasis added).
`
`These representations have been consistent in every phase of the case. After
`
`the district court compelled Appellants to produce certain withheld information, they
`
`sought a writ of mandamus in this Court and described their suit as follows:
`
`Petitioners brought the underlying civil action for declaratory and
`equitable
`relief under
`[the UCL] and
`[FAL], challenging
`[Sanderson’s] advertising of
`its Chicken Products as “100%
`Natural.” . . . Thus, the central issue to the underlying litigation
`concerns Sanderson’s false advertising and whether reasonable
`consumers are deceived by it.
`
`SER 62-63 (emphases added). Appellants’ briefing before the district court on
`
`various occasions was in accord. See, e.g., SER 70 (“This is a false advertising case
`
`6
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`and therefore the central issue is whether Defendant misled the public with its
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`advertisements.”); SER 67 (“Plaintiffs are non-profit, public interest organizations
`
`seeking declaratory and injunctive relief for Sanderson’s false advertising of its
`
`chickens and chicken-raising process as being 100% Natural.”).
`
`These consistent representations (and others like them) throughout the
`
`litigation reinforced to the district court and Sanderson that this was—and has
`
`always been—a case about Sanderson’s allegedly false advertising.
`
`C. Appellants’ Standing Allegations and the Evidence Revealed in
`Discovery
`a. Appellants’ Allegations
`In support of their false advertising claims, Appellants assert direct
`
`organizational standing based on a diversion-of-resources theory: Appellants allege
`
`that they diverted money “[a]s a result of Sanderson’s legal violations.” ER 403-07
`
`(TAC ¶¶ 18, 24, 26-27). Appellants do not assert representational or associational
`
`standing.
`
`Before discovery began, Sanderson moved to dismiss on several grounds,
`
`including that Appellants’ allegations were facially insufficient to establish
`
`Article III standing. The district court denied that motion and, applying the familiar
`
`Rule 12(b)(6) pleading standard, held that Appellants had satisfied their burden
`
`regarding standing “[a]t the pleading stage” by “broadly alleg[ing]” a “diversion-of-
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`resources injury.” ER 443 (citation omitted).
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`7
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`b. Discovery Sought by Sanderson
`The parties then engaged in over nine months of fact discovery, during which
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`Sanderson specifically sought discovery regarding Appellants’ standing allegations.
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`Collectively, this evidence confirmed that Appellants did not in fact divert resources
`
`to address Sanderson’s advertising, but rather continued longstanding advocacy
`
`activities consistent with their respective missions:
`
`Interrogatories. Sanderson specifically asked Appellants to:
`
`Identify with specificity all bases for your contention that
`you have lost money or property as a result of the
`Sanderson advertising
`identified
`in
`the Complaint,
`including the specific dollar amounts of costs incurred, the
`number of employee hours diverted, projects undertaken,
`and/or documents created.
`
`See SER 129, 138. But Appellants’ responses largely recycled the conclusory
`
`allegations from their complaints and purported to quantify alleged losses of money
`
`and property without any supporting documentation. See SER 129-34, 138-42.
`
`Documents. Sanderson served 37 document requests seeking, among other
`
`things, documents: (i) Appellants allegedly prepared in response to (or as a result of)
`
`Sanderson’s advertising, (ii) showing any harm or injury Appellants claimed to have
`
`suffered as a result of Sanderson’s advertisements, and (iii) demonstrating the
`
`amount of money and/or hours Appellants allegedly devoted to projects or activities
`
`as a result of Sanderson’s ads. SER 145-62. None of the documents produced by
`
`8
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`Appellants in response indicated they took any actions specific to or as a result of
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`Sanderson’s advertising.
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`Depositions. Sanderson then deposed a Rule 30(b)(6) designee from each
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`Appellant organization. Far from confirming the existence of Sanderson-specific
`
`initiatives, Appellants’ designees (Rebecca Spector of CFS and Marcelin Keever of
`
`FoE) confirmed that Sanderson’s advertising did not cause or affect Appellants’
`
`activities. Indeed, Appellants admitted that Sanderson’s advertising did not require
`
`Appellants to take, or prohibit them from taking, any action. E.g., SER 116:14-16
`
`(“[Q.] You agree that Sanderson’s advertising didn’t require CFS to do anything at
`
`all; correct? A. Yes.”); SER 117:4-8 (similar); SER 117:25-118:4 (“Q. You would
`
`agree that Sanderson’s advertising didn’t prohibit any activities on the part of CFS;
`
`correct? . . . A. I would agree.”).
`
`Appellants also admitted—in direct contradiction to their pleadings and
`
`written discovery responses—that they did not engage in the activities identified in
`
`their written responses “because of” Sanderson’s advertising. E.g., SER 100:4-9
`
`(“[Q.] FOE published the Chain Reaction reports because it cares about supplier
`
`practices; correct? A. Regarding antibiotics, yes. Q. FOE didn’t publish the Chain
`
`Reaction reports because of Sanderson’s advertising; right? A. Correct.”); SER
`
`100:24-101:5 (“Q. And FOE made public statements about routine antibiotic use
`
`because it opposes routine antibiotic use; right? A. Yes. Q. FOE didn’t make those
`
`9
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`statements because of Sanderson advertising; right? A. No.”). Indeed, Appellants
`
`acknowledged they still would have undertaken the activities they identified in the
`
`complaints and their discovery responses even if Sanderson had never aired the
`
`challenged ads. E.g., SER 101:24-102:3 (FoE).
`
`Sanderson also requested depositions of two other individuals, Cameron
`
`Harsh of CFS and Kari Hamerschlag of FoE, whom Appellants had identified in
`
`their initial disclosures and interrogatory responses as likely to possess relevant
`
`information. Appellants objected to those depositions as duplicative of the Rule
`
`30(b)(6) depositions and, following discussions between the parties, Appellants
`
`agreed that they would not “not rely (at any stage)” on those individuals “to prove
`
`any element for which [Appellants] bear . . . the burden of proof, including, but not
`
`limited to: . . . in support of either Plaintiff’s alleged standing.” SER 163. In light
`
`of that agreement, Sanderson agreed to forgo those additional depositions. Id.
`
`c. Appellants’ Alleged Diversion Activities
`Appellants each admitted in discovery that they did not become aware of the
`
`challenged Sanderson advertisements until August 1, 2016. SER 120 (FoE Resp. to
`
`Sanderson Interrog. No. 5); SER 124-25 (CFS Resp. to Sanderson Interrog. No. 5).
`
`Before that date—and consistent with their stated missions—Appellants were
`
`already engaged in activities (including campaigns related to Sanderson’s
`
`customers) advocating limitations on the use of antibiotics in animal agriculture and
`
`10
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`discouraging consumers from purchasing meat raised with routine antibiotics. See
`
`SER 106:20-23 (CFS 30(b)(6) Dep.); SER 73:8-12, 74:12-75:15 (FoE 30(b)(6)
`
`Dep.).
`
`Notwithstanding that certain of their activities took place before Appellants
`
`were even aware of the challenged ads, Appellants asserted in discovery that a
`
`number of their activities were purportedly “as a result of” Sanderson’s advertising.
`
`SER 129-34, 138-42. These activities included:
`
`Chain Reaction Reports. In September 2015, Appellants and other non-party
`
`advocacy organizations published a “Chain Reaction” report, which graded more
`
`than 20 restaurant chains on their antibiotics and sourcing practices. ER 267-82.
`
`Those organizations continued to publish annual updates in later years, but both
`
`Appellants conceded that they did not publish the Chain Reaction reports “because
`
`of” Sanderson’s advertising, and the reports themselves did not even mention
`
`Sanderson until after this litigation was initiated. See SER 100:7-9 (FoE); SER
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`108:14-16 (CFS) (“Q. CFS didn’t prepare this report because of Sanderson’s
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`advertising. Fair? A. Correct.”).
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`Press Releases and Blogs. Starting well before Appellants admitted they
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`learned of Sanderson’s advertising, both Appellants frequently published press
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`releases and blog posts addressing the issue of antibiotic use in animal husbandry.
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`See, e.g., SER 169-75; ER 330-31. But many of the press releases identified as
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`supposed diversions by FoE were published in 2015 and early 2016—before FoE
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`was aware of Sanderson’s advertising. See, e.g., SER 131-33. Moreover, each
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`party’s Rule 30(b)(6) designee repeatedly conceded that the pre-litigation press
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`releases and blog posts Appellants identified as “result[ing]” from Sanderson’s
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`advertising did not mention Sanderson or the challenged Sanderson advertising at
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`all, and Appellants could not identify any pre-litigation release or post that did so.
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`See, e.g., SER 80:18-81:8, 82:10-24, 83:18-24, 84:17-21, 86:11-13, 89:13-21, 90:8-
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`15, 91:20-25, 92:11-17, 93:25-94:7, 94:21-95:1 (FoE); SER 112:11-23, 113:20-
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`114:1, 114:17-115:4 (CFS); see also SER 169-70, 176-92, 198-202; ER 330-33.
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`Instead, the publications identified by Appellants either concerned antibiotics issues
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`generally or involved companies other than Sanderson (and that are not even
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`Sanderson customers), and it was not until the press release regarding this lawsuit
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`that Appellants ever mentioned Sanderson’s advertising. See, e.g., SER 195 (CFS
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`post concerning McDonald’s); SER 193-94 (FoE post concerning Subway). Many
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`of the press releases and blog posts Appellants identified as having been published
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`“as a result of” Sanderson’s advertising did not even relate to chicken. See, e.g.,
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`SER 196-97 (CFS post concerning Thanksgiving turkeys).
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`Darden Campaign. Starting in 2015—again, before Appellants became
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`aware of the challenged advertising—FoE engaged in a series of activities (including
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`letters, petitions, and other advocacy) targeting Olive Garden (which was a
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`Sanderson customer) and its parent company, Darden Restaurants. SER 76:13-25,
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`77:15-25, 78:19-79:6, 87:17-88:10 (FoE); SER 176-88, 206-09; ER 337-40. FoE’s
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`campaign addressed a variety of issues, including Darden’s sourcing of its meat from
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`suppliers that use antibiotics (including, but not limited to, Sanderson), as well as
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`issues unrelated to Sanderson like fair wages and labor conditions. See, e.g., ER 341.
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`Once again, FoE’s Rule 30(b)(6) deponent admitted that FoE was already
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`engaging in advocacy related to Olive Garden’s sourcing practices before it saw
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`Sanderson’s advertising; that FoE did not campaign against Darden and Olive
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`Garden “because of” Sanderson’s advertising; and that even if Sanderson had never
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`aired the advertisements at issue, FoE would still have encouraged Darden and Olive
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`Garden to source its meat from suppliers other than Sanderson. SER 79:2-6,
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`88:5-10, 100:15-18.
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`“Action Alerts.” In its interrogatory responses, FoE also cited “Action Alerts
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`related to Sanderson, Darden, Olive Garden, the Chain Reaction report, and
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`antibiotics in the food supply” as “result[ing]” from Sanderson’s advertising.
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`SER 133. But FoE’s interrogatory response did not identify the alerts it alleged were
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`“a result of” the challenged Sanderson advertising, nor did FoE (or CFS) produce
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`any such communications or alerts pertaining to Sanderson’s advertising in
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`discovery.
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`Social Media. FoE also stated in its interrogatory responses that it made
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`“more than 200 Tweets and more than 30 Facebook posts related to Sanderson,
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`Darden, Olive Garden . . . , the Chain Reaction report, and antibiotics in the food
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`supply.” SER 133. Again, FoE did not specifically identify the posts that it alleges
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`were “a result of” the challenged Sanderson advertising or when such posts were
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`made (including whether they were made before or after FoE learned of Sanderson’s
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`advertising). Id. And CFS admitted that any social media posts related to antibiotics
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`issues that it published were about all of the twenty-plus restaurants that had been
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`identified in the Chain Reaction report, most of which were not Sanderson
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`customers. SER 111:15-22 (CFS).
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`Petitions, Letters, and Protests. Finally, in the Complaint and their
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`interrogatory responses, Appellants cited a petition signed by “over 100,000” people
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`and delivered to the leadership of numerous restaurants.
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` ER 403, 406
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`(TAC ¶¶ 18, 24); SER 130 (FoE Resp. to Sanderson Interrog. No. 7); SER 139 (CFS
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`Resp. to Sanderson Interrog. No. 7). But that petiti