FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`
`FRIENDS OF THE EARTH, a
`Washington, D.C. non-profit
`corporation, on behalf of the general
`public; CENTER FOR FOOD SAFETY, a
`California non-profit corporation, on
`behalf of the general public,
`Plaintiffs-Appellants,
`
` No. 19-16696
`
`D.C. No.
`3:17-cv-03592-
`RS
`
`
`OPINION
`
`and
`
`
`ORGANIC CONSUMERS ASSOCIATION,
`a Minnesota non-profit corporation,
`on behalf of the general public,
`Plaintiff,
`
`
`
`
`
`v.
`
`SANDERSON FARMS, INC., a
`Mississippi corporation,
`Defendant-Appellee.
`
`Appeal from the United States District Court
`for the Northern District of California
`Richard Seeborg, District Judge, Presiding
`
`Argued and Submitted October 13, 2020
`San Francisco, California
`
`Filed March 31, 2021
`
`
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`
`FRIENDS OF THE EARTH, a
`Washington, D.C. non-profit
`corporation, on behalf of the general
`public; CENTER FOR FOOD SAFETY, a
`California non-profit corporation, on
`behalf of the general public,
`Plaintiffs-Appellants,
`
` No. 19-16696
`
`D.C. No.
`3:17-cv-03592-
`RS
`
`
`OPINION
`
`and
`
`
`ORGANIC CONSUMERS ASSOCIATION,
`a Minnesota non-profit corporation,
`on behalf of the general public,
`Plaintiff,
`
`
`
`
`
`v.
`
`SANDERSON FARMS, INC., a
`Mississippi corporation,
`Defendant-Appellee.
`
`Appeal from the United States District Court
`for the Northern District of California
`Richard Seeborg, District Judge, Presiding
`
`Argued and Submitted October 13, 2020
`San Francisco, California
`
`Filed March 31, 2021
`
`
`
`2
`
`
`
`
`
`FRIENDS OF THE EARTH V. SANDERSON FARMS
`
`Before: M. Margaret McKeown and Jacqueline H.
`Nguyen, Circuit Judges, and Robert H. Whaley,*
`District Judge.
`
`Opinion by Judge McKeown
`
`
`SUMMARY**
`
`Organizational Standing
`
`The panel affirmed the district court’s dismissal for lack
`of organizational standing of an action brought by two public
`interest groups (“Advocacy Groups”) against Sanderson
`Farms, Inc., a major poultry producer, alleging false
`advertising related to the use of antibiotics.
`
`To establish organizational standing, the Advocacy
`Groups needed to show that the challenged conduct
`frustrated their organization missions and that they diverted
`resources to combat that conduct. The panel held that the
`Advocacy Groups failed to establish standing when they
`failed to show a diversion of their resources to combat
`Sanderson’s advertising. Once Sanderson’s misleading
`advertisements were brought to the attention of the
`Advocacy Groups, they simply continued doing what they
`were already doing – publishing reports on and informing
`
`
`* The Honorable Robert H. Whaley, United States District Judge for
`the Eastern District of Washington, sitting by designation.
`
`** This summary constitutes no part of the opinion of the court. It
`has been prepared by court staff for the convenience of the reader.
`
`
`
`FRIENDS OF THE EARTH V. SANDERSON FARMS
`
`
`
`the public of various companies’ antibiotic practices. There
`was no evidence of any diversion of resources.
`
`3
`
`The panel rejected the Advocacy Groups’ argument that
`their California Unfair Competition Law claims should
`nevertheless move forward because
`they challenged
`Sanderson’s husbandry practices, not just its advertising.
`The panel held that the Unfair Competition Law claim failed
`because it was tethered to Sanderson’s advertisements.
`
`
`
`COUNSEL
`
`
`Paige Tomaselli (argued), Greenfire Law PC, Berkeley,
`California; Gretchen Elsner, Elsner Law & Policy LLC,
`Santa Fe, New Mexico; for Plaintiffs-Appellants.
`
`Michael A. Glick (argued), Gregg F. LoCascio, Paul J.
`Weeks, and Erin E. Cady, Kirkland & Ellis LLP,
`Washington, D.C., for Defendant-Appellee.
`
`
`
`
`
`4
`
`
`FRIENDS OF THE EARTH V. SANDERSON FARMS
`
`OPINION
`
`McKEOWN, Circuit Judge:
`
`Resolution of this appeal rests on whether two public
`interest groups, Friends of the Earth and Center for Food
`Safety (collectively, “the Advocacy Groups”), established
`organizational standing in their suit against Sanderson
`Farms, Inc., a major poultry producer, for false advertising
`related to the use of antibiotics. After nearly two years of
`litigation and nine months of fact discovery, Sanderson
`challenged whether the Advocacy Groups achieved standing
`by diverting resources to combat the allegedly misleading
`representations.
`
`In a
`thorough evaluation of
`the
`jurisdictional evidence, the district court dismissed the
`Advocacy Groups’ claims for lack of organizational
`standing. We affirm.
`
`BACKGROUND
`
`The missions of the Advocacy Groups relate to the
`protection of human health, animal health, and the
`environment, including reduction of the routine use of
`antibiotics in animal agriculture. The Advocacy Groups
`advance their missions through myriad activities, including
`by informing consumers about the downsides of routine
`antibiotic use and by pressuring restaurants to stop sourcing
`meat from producers that routinely use antibiotics.
`
`Though many chicken producers have stopped routine
`antibiotic practices, Sanderson has continued to use and
`defend its use of antibiotics. Sanderson supplies its chicken
`to, among others, Darden Restaurants, which owns Olive
`Garden. Because it purchased chickens raised by Sanderson,
`Olive Garden received an F grade in the Advocacy Groups’
`Chain Reaction reports, which rank “restaurant chains on
`
`
`
`5
`
`FRIENDS OF THE EARTH V. SANDERSON FARMS
`
`
`
`their antibiotic policies” and practices. On August 1, 2016,
`the Advocacy Groups became aware that Sanderson
`marketed and advertised its chicken products as “100%
`Natural” and ran advertisements stating that there were “[n]o
`antibiotics to worry about here.” As part of its work to
`combat routine antibiotic use, Center for Food Safety linked
`on Facebook to an August 1, 2016 New York Times article
`about Sanderson’s defense of its antibiotic use and wrote that
`Sanderson “lag[ged] behind many in the industry” on
`protecting human health and animal well-being.
`
`The next year, the Advocacy Groups sued Sanderson
`under California’s Unfair Competition Law (“UCL”), Cal.
`Bus. & Prof. Code § 17200 et seq., and False Advertising
`Law, id. § 17500 et seq., for false advertising about
`Sanderson’s chicken products being “100% Natural.” After
`the first amendment to the complaint, Sanderson moved to
`dismiss, raising a facial challenge to the Advocacy Groups’
`organizational standing. The district court denied the motion
`because Friends of the Earth alleged that it had devoted
`additional time and resources to counteract Sanderson’s
`misrepresentations and Center for Food Safety alleged that
`it had diverted resources away from its government
`watchdog work to respond to Sanderson’s advertising.
`
`Significant discovery followed. The Advocacy Groups
`produced the Chain Reaction reports, press releases, social
`media posts, action alerts emails, petitions, and the purported
`costs associated with these activities. At the close of fact
`discovery, Sanderson again moved to dismiss, this time
`raising a factual challenge to the Advocacy Groups’
`organizational standing.
`
`After review of the record, the district court dismissed
`the case for lack of subject matter jurisdiction, finding that
`the Advocacy Groups had not diverted resources to combat
`
`
`
`FRIENDS OF THE EARTH V. SANDERSON FARMS
`
`6
`
`the advertisements; rather, the activities were continuations
`of their ongoing work to discourage routine antibiotic use.
`
`ANALYSIS
`
`I. THE ADVOCACY GROUPS FAILED TO ESTABLISH
`STANDING THROUGH A DIVERSION OF RESOURCES TO
`COMBAT SANDERSON’S ADVERTISING
`
`To establish organizational standing, the Advocacy
`Groups needed to show that the challenged conduct
`frustrated their organizational missions and that they
`diverted resources to combat that conduct. Am. Diabetes
`Ass’n v. U.S. Dep’t of the Army, 938 F.3d 1147, 1154
`(9th Cir. 2019). Only the diversion of resources component
`is at issue on appeal. Organizations divert resources when
`they “alter[] their resource allocation to combat the
`challenged practices,” but not when they go about their
`“‘business as usual.’” Id. (quoting Nat’l Council of La Raza
`v. Cegavske, 800 F.3d 1032, 1040–41 (9th Cir. 2015)).
`
`found when
`resources has been
`Diversion of
`organizations “expended additional resources that they
`would not otherwise have expended, and in ways that they
`would not have expended them.” Nat’l Council of La Raza,
`800 F.3d at 1040. This requirement was satisfied, for
`example, when an organization designed and disseminated
`literature
`to
`redress
`the effects of
`the challenged
`discrimination, Fair Hous. of Marin v. Combs, 285 F.3d 899,
`905 (9th Cir. 2002), and when an organization started new
`campaigns targeting discriminatory roommate preference
`practices, Fair Hous. Council of San Fernando Valley v.
`Roommate.com, LLC, 666 F.3d 1216, 1219 (9th Cir. 2012).
`In contrast, courts have found that merely continuing
`ongoing activities does not satisfy this requirement. See
`NAACP v. City of Kyle, 626 F.3d 233, 238–39 (5th Cir.
`
`
`
`7
`
`FRIENDS OF THE EARTH V. SANDERSON FARMS
`
`
`
`2010) (holding that there was no injury sufficient for
`organizational standing where the resource expenditures
`were litigation-related or were no different than the
`organizations’ ongoing lobbying activities); Fair Hous.
`Council of Suburban Phila. v. Montgomery Newspapers,
`141 F.3d 71, 78 (3d Cir. 1998) (holding that organizational
`standing was not satisfied where the activities were “part of
`the [organization]’s normal day-to-day operations”).
`
`Two temporal bookends put into perspective the timing
`of the advocacy here. Because the Advocacy Groups did not
`learn of Sanderson’s alleged misrepresentations until August
`1, 2016, resources expended before that date are not
`pertinent. And activities undertaken after suit was filed in
`June 2017, such as expending resources on the litigation and
`litigation publicity, do not confer standing. See La
`Asociacion de Trabajadores de Lake Forest v. City of Lake
`Forest, 624 F.3d 1083, 1088 (9th Cir. 2010) (noting that a
`plaintiff “cannot manufacture the injury by incurring
`litigation costs”). Nor does the theory of ongoing injury hold
`water if the Advocacy Groups have not established injury in
`the first place.
`
`The question, then, is whether the Advocacy Groups’
`activities were “business as usual” and a continuation of
`existing advocacy, or whether they were an affirmative
`diversion
`of
`resources
`to
`combat
`Sanderson’s
`representations. Well before August 2016, the Advocacy
`Groups undertook various initiatives to further their goal of
`reducing routine antibiotic use in animal agriculture. Since
`at least 2014, the mission of Friends of the Earth has entailed
`“encouraging buyers not to purchase meat that was raised at
`some point in the supply chain with routine antibiotics,” and
`in 2015, the organization endeavored to convince Sanderson
`buyers to source from other suppliers. Similarly, one of the
`
`
`
`FRIENDS OF THE EARTH V. SANDERSON FARMS
`
`8
`
`core missions of Center for Food Safety is “limiting use of
`antibiotics in animal agriculture.”
`
`In examining the extensive discovery, it turns out that
`during the relevant period—August 2016 to June 2017—the
`Advocacy Groups did not publish action alerts or other
`advice to their members targeting the advertising; did not
`address Sanderson’s advertising in any campaign, press
`release, blog post, or other communication; did not petition
`Sanderson; and did not protest Sanderson’s advertising.
`This notable absence of evidence led the district court to
`conclude that the Advocacy Groups “failed to produce
`evidence demonstrating they expended additional resources
`to address Sanderson’s advertisements, as opposed to its
`practices.”1 Once Sanderson’s misleading advertisements
`were brought to the attention of the Advocacy Groups, they
`simply continued doing what they were already doing—
`publishing reports on and informing the public of various
`companies’ antibiotic practices. This evidentiary void
`cannot be filled by emails in which the Advocacy Groups’
`employees shared articles about Sanderson’s practices and
`deceptive advertisements, querying
`internally whether
`something should be done; evidence of any diversion of
`resources remains missing.
`
`to distinguish
`The Advocacy Groups attempted
`Sanderson-related expenditures from ongoing activities by
`pointing to post-discovery information offered by their
`designated representatives, Marcelin Keever and Rebecca
`
`
`1 Although the Advocacy Groups make much of this statement, we
`do not read the district court to have required the Advocacy Groups to
`mention Sanderson’s advertisements. Rather, the lack of any such
`reference supported the district court’s finding regarding the absence of
`evidence of diverted resources.
`
`
`
`9
`
`FRIENDS OF THE EARTH V. SANDERSON FARMS
`
`
`
`Spector. Keever stated that “because of [Sanderson’s] . . .
`advertising . . . , Friends of the Earth used its Facebook
`account to publicize the truth about antibiotics and chicken
`. . . .”
` Spector offered that because of Sanderson’s
`advertising, Center for Food Safety had to provide greater
`detail in its publications and changed its tone in one of its
`blog posts. She asserted that Sanderson’s advertising led to
`a Center for Food Safety employee spending “at least
`25 percent more time educating the public about why
`[Sanderson]’s advertising, specifically its messaging on
`antibiotics, was misleading and 25 percent less time on
`federal policy work.”
`
`The earlier depositions of these representatives told a
`different story. Keever admitted that Friends of the Earth’s
`advocacy activities were not “because of” Sanderson’s
`advertising, and Spector admitted that the advertising did not
`“require [Center for Food Safety] to do anything at all.” And
`more damning was the admission by Friends of the Earth
`that, even without the advertising, the organization would
`have continued its pressure campaign to get restaurants to
`switch from Sanderson as a supplier. The district court laid
`out the previous “damaging” testimony where the Advocacy
`Groups admitted that “they did not divert resources because
`of Sanderson’s advertising and state[d] they would have
`undertaken
`the
`same advocacy activities—including
`advocating against
`the use of antibiotics
`in animal
`agriculture and discouraging consumers from purchasing
`meat raised with routine antibiotics—even if Sanderson had
`never aired the challenged advertisements.”
`
`The court homed in on the two declarations because of
`the conflict with the depositions and the other discovery, and
`because none of the other evidence supported a traceable
`link between
`the challenged advertisements and
`the
`
`
`
`FRIENDS OF THE EARTH V. SANDERSON FARMS
`
`10
`
`advocacy activities. The district court found “suspect” the
`claim about a staff member spending 25% more time
`because of Sanderson’s advertising and found the figure
`“uncorroborated in the record.” The district court referenced
`the sham affidavit rule in passing and concluded that “[t]he
`Keever and Spector Declarations, to the extent they allege
`Plaintiffs[] diverted resources to address Sanderson’s
`advertisements, are wholly inconsistent with Plaintiffs’
`deposition testimony, and their apparent explanation for this
`discrepancy (namely, to clarify their prior deposition
`testimony), is untenable.”
`
`The Advocacy Groups dispute the district court’s
`approach to resolving the conflicting evidence, arguing that
`it erred in not applying the stringent requirements of the
`sham affidavit rule or in not holding an evidentiary hearing.
`The court’s perspective, however, was consistent with the
`rules governing a factual challenge to standing under Rule
`12(b)(1). Once Sanderson contested “the truth of the
`plaintiff[s’] factual allegations,” the Advocacy Groups had
`the burden to “support [their] jurisdictional allegations with
`‘competent proof,’” Leite v. Crane Co., 749 F.3d 1117, 1121
`(9th Cir. 2014) (quoting Hertz Corp. v. Friend, 559 U.S. 77,
`96–97 (2010)), and, of course, had the burden of establishing
`subject matter jurisdiction. See Safe Air for Everyone v.
`Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (“[T]he party
`opposing the motion must furnish affidavits or other
`evidence necessary to satisfy its burden of establishing
`subject matter jurisdiction.”). Importantly, because the
`jurisdictional disputes were not intertwined with the merits
`of the claim and because “the existence of jurisdiction
`turn[ed] on disputed factual issues,” it fell to the district
`court to “resolve those factual disputes itself.” Leite,
`749 F.3d at 1121–22, 1122 n.3. Indeed, that is exactly what
`the district court did, and we review its factual findings for
`
`
`
`FRIENDS OF THE EARTH V. SANDERSON FARMS
`
`
`
`clear error. Kingman Reef Atoll Invs., LLC v. United States,
`541 F.3d 1189, 1195 (9th Cir. 2008).
`
`11
`
`The district court’s reference to the sham affidavit rule
`does not change our conclusion. On a summary judgment
`motion, the sham affidavit rule permits courts to set aside
`contradictory testimony, provided certain conditions are
`met. Yeager v. Bowlin, 693 F.3d 1076, 1080 (9th Cir. 2012).
`The rule is “‘applied with caution’ because it is in tension
`with the principle that the court is not to make credibility
`determinations when granting or denying summary
`judgment.” Id. (quoting Van Asdale v. Int’l Game Tech.,
`577 F.3d 989, 998 (9th Cir. 2009)).
`
`Notably, a factual jurisdictional challenge under Rule
`12(b)(1) does not provide the same framework or procedural
`protections for plaintiffs as review at summary judgment.
`See Kingman Reef, 541 F.3d at 1195; CNA v. United States,
`535 F.3d 132, 140 (3d Cir. 2008) (recognizing that review at
`summary judgment provides more procedural protections
`for plaintiffs than does review under Rule 12(b)(1), because
`under Rule 12(b)(1) the district court “may independently
`evaluate the evidence regarding disputes over jurisdictional
`facts”); Morrison v. Amway Corp., 323 F.3d 920, 924–25
`(11th Cir. 2003) (similar). Thus, in resolving factual
`disputes going to jurisdiction, the district court was not
`required to follow the strictures of the sham affidavit rule.
`
`After nearly two years and mountains of discovery, the
`Advocacy Groups could meaningfully offer only a single
`conclusory, contradictory, and uncorroborated statement as
`evidence of diverted resources. The district court weighed
`the evidence and concluded that the various activities
`proffered by the Advocacy Groups “were continuations of
`non-Sanderson-specific initiatives [the Advocacy Groups]
`were undertaking in furtherance of their missions to address
`
`
`
`FRIENDS OF THE EARTH V. SANDERSON FARMS
`
`12
`
`antibiotic use generally.” We discern no error in that
`conclusion. See Adler v. Federal Republic of Nigeria,
`107 F.3d 720, 728 (9th Cir. 1997) (“A district court has
`considerable latitude in devising the procedures it will
`follow to ferret out the facts pertinent to jurisdiction.”
`(internal quotation marks omitted)).
`
`II. THE UCL CLAIM FAILS BECAUSE IT IS TETHERED TO
`SANDERSON’S ADVERTISEMENTS
`
`The Advocacy Groups argue that their UCL claim should
`nevertheless move forward because
`they challenged
`Sanderson’s husbandry practices—not just its advertising.
`This argument fails. Throughout the litigation, and as the
`Advocacy Groups acknowledged at oral argument, all parts
`of
`the UCL claim have
`related
`to Sanderson’s
`representations of its chicken products as “100% Natural.”
`Thus, the husbandry practices are not relevant in their own
`right, but only as related to the claimed misrepresentations.
`For this reason, the UCL claim is entirely tethered to the
`representations. Consequently, no claim survives dismissal.
`
`AFFIRMED.
`
`
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