Tag Archives: standing

100% Natural Case 100% Dismissed: You Can’t Have a False Advertising Case Without Advertising

A federal judge in the Northern District of California recently dismissed a false advertising case brought by two non-profit groups, finding that their own testimony sunk their claims.

The two plaintiffs, the Center for Food Safety and Friends of the Earth, sued Sanderson Farms Inc. (“Sanderson”), alleging that Sanderson’s advertisements of its chicken as “100 percent natural” was misleading in violation of California’s Unfair Competition Law (“UCL”) and False Advertising Law (“FAL”). The organizations alleged that reasonable consumers would interpret the statement “100 percent natural” to mean that the chicken was raised without any antibiotics ever, whereas Sanderson’s chicken products are raised with antibiotics, but such antibiotics have cleared prior to sale. In December 2018, the judge denied Sanderson’s motion to dismiss, finding that the organizations had adequately alleged violations of the UCL and FAL. The case then proceeded into discovery.

On July 31, 2019, however, the judge granted Sanderson’s new motion to dismiss, holding that the organizations lacked standing to bring the case. Friends of the Earth, et al. v. Sanderson Farms, Inc., No. 3:17-cv-03592-RS (N.D. Cal. July 31, 2019) (ECF 221). While the organizations alleged in their complaint that they had diverted resources to combat Sanderson’s allegedly misleading advertising, the evidence produced in discovery revealed that to be false. The judge found that the activities the organizations undertook were related to antibiotic use generally, and were not in reaction to Sanderson’s advertising. “Perhaps most damaging,” the judge found, were the organizations’ own depositions, in which they admitted “they did not divert resources because of Sanderson’s advertising” and stated that “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,” and that “they would have encouraged Sanderson’s customers to avoid Sanderson and other products that used routine antibiotics regardless of the existence of the advertising.” Id. at 5-6. In other words, the organizations’ real issue was with Sanderson’s practices, not its advertising. But, as the judge found, “This is a false advertising case, and Plaintiffs must establish that their alleged injury is traceable to the challenged ads at issue.” Id. at 6. Because the organizations fatally undercut their own claim that any “injury” they had was caused by Sanderson’s advertising, the judge dismissed their case.

This case is a good reminder of two points for companies who might find themselves on the defense side of a federal case brought by an advocacy group—

First, for a plaintiff to have a successful case, not only must they have a substantive claim (here, alleged violation of false advertising statutes), but they also must have a valid theory of standing. In federal court, to have standing a plaintiff must have an injury that is caused by the action of the defendant and redressable by a favorable ruling. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992). For cases involving individual plaintiffs, standing theories can often be straightforward (e.g., “I sustained a physical injury when the defendant ran the red light and hit me” or “I spent money on this product that was falsely advertised that I wouldn’t have spent if it was truthfully advertised”). When organizations decide to become plaintiffs, they often have to use other standing theories. Some common theories: informational injury standing (a statute requires that the organization be provided certain information that was withheld). See, e.g., Federal Election Commission v. Akins, 524 U.S. 11 (1998)); organizational injury standing (defendant’s conduct frustrates the organization’s mission and caused it to divert resources away from programmatic activities towards combatting the defendant’s conduct). See, e.g., La Asociacion de Trabajadores de Lake Forest v. City of Lake Forest, 624 F.3d 1083 (9th Cir. 2010)); and associational standing (at least one of the organization’s members has standing to sue in their own right; the interests at stake are germane to the organization’s purpose, and neither the claim asserted nor the relief requested requires the participation of individual members). See, e.g., Friends of the Earth v. Laidlaw Envtl. Servs., (TOC), Inc., 528 U.S. 167 (2000).

It is important for defendants to think not just about how to defend themselves on the substance/merits of the claims in a lawsuit, but also to think about whether the person/entity bringing the lawsuit actually has the right to do so. If the plaintiff does not have standing, the case should be dismissed regardless of the strength of the underlying claim. In the Sanderson case, the judge previously found that the plaintiff organizations had adequately alleged their substantive UCL and FAL claims, but ultimately dismissed the entire case because the organizations could not establish the organizational injury standing they pled—they could not show that they had diverted organizational resources as a result of the alleged false advertising.

Second, a defendant can raise a plaintiff’s lack of standing at any point in the case. Defendants often want to bring such a challenge in a motion to dismiss at the beginning of a case before expending resources on discovery. However, on a motion to dismiss, the judge is required to assume that the allegations in the complaint are true. For example, if an organizational plaintiff alleges that it diverted funds from one of its activities to combatting a defendant’s false advertising, the judge must assume that is true, making it difficult for a defendant to succeed in getting a well-pleaded case dismissed for lack of standing at the motion to dismiss stage. However, defendants should take heart that if forced to go into discovery on the merits, they should take the opportunity to get discovery on the plaintiff’s standing theory. The deposition testimony given by the plaintiffs in the Sanderson case is ultimately what led to their demise and the dismissal of the case. Defendants should remember that even if they fail at getting a case dismissed for lack of standing early in the case, that they should try, try again. The burden to prove standing is on the plaintiffs throughout a case, and the bar for what they must demonstrate gets raised at each stage. Adequately alleging standing is not the same thing as proving it. Sometimes, as in the Sanderson case, discovery can reveal that it is a plaintiff’s standing theory (not the defendant’s advertising) that is false.

Animal Activist Group Loses “Right to Wilderness” Lawsuit

by Michelle C. Pardo

If you thought animal and environmental activists had already pushed the envelope far enough in the world of federal court litigation, think again.

This week, an Oregon federal judge ruled that a group of plaintiffs – made up of animal and environmental activist organizations and individuals – do not have a constitutional “right to wilderness” and dismissed with prejudice their lawsuit which sought to force the federal government to cease policies that contributed to climate change that, in turn, harmed plaintiffs’ enjoyment of nature and wildlife.   ALDF et al. v. United States, (6:18-cv-01860-MC)(D. Oregon). Continue reading Animal Activist Group Loses “Right to Wilderness” Lawsuit

Court Dismisses Challenge to USDA’s Failure to Issue AWA Avian Regulations

By John M. Simpson

Earlier this week, a federal district court in Washington, D.C., dismissed an action brought by animal rights organizations challenging the failure of the U.S. Department of Agriculture (USDA) to issue animal welfare regulations specific to birds under the Animal Welfare Act (AWA).  American Anti-Vivisection Soc’y, et al. v. U.S. Dep’t of Agriculture, et al., No. 1:18-cv-01138 (TNM) (D.D.C. Dec. 10, 2018).  While finding that the plaintiffs had pleaded sufficient facts to establish Article III standing to sue, the court rejected their substantive claims under the Administrative Procedure Act (APA):  (i) that USDA’s failure to promulgate regulations applicable to birds was “agency action unlawfully withheld;” and (ii) that USDA’s decision not to issue the standards was arbitrary and capricious, an abuse of discretion and contrary to law.  Continue reading Court Dismisses Challenge to USDA’s Failure to Issue AWA Avian Regulations

Asian Elephant Case Against Buttonwood Park Zoo Continues

by Michelle C. Pardo

An Endangered Species Act (ESA) lawsuit against the City of New Bedford will continue after a federal district judge in Massachusetts denied the defendant’s efforts to dismiss plaintiff Joyce Rowley’s lawsuit.  The City of New Bedford runs the Buttonwood Park Zoo, which has been home to two Asian elephants, Ruth and Emily, for decades.  Plaintiff Rowley runs an organization called Friends of Ruth & Emily Inc., which is dedicated to retiring Asian elephants Ruth and Emily to “a warm climate sanctuary to live out their days in peace, dignity, and freedom”.  In the last 25 months, it’s “Go Fund Me” page has raised just $10,025 of the requested $25,000 “to get justice” for the elephants. Continue reading Asian Elephant Case Against Buttonwood Park Zoo Continues

Justice the Horse Will NOT Have his Day in Court

by Michelle C. Pardo

In August, we updated you about a lawsuit filed by the Animal Legal Defense Fund (ALDF) in which a horse called Justice was the named plaintiff.  On September 17, 2019, an Oregon judge rejected the “creative” theory that an animal has legal capacity to sue its former owner and dismissed the case with prejudice, delivering another blow to various animal activist groups’ movement to open the courthouse doors to non-human animal litigants.  Continue reading Justice the Horse Will NOT Have his Day in Court

9th Circuit Affirms Summary Judgment of No Standing in Endangered Species Act Case

by  John M. Simpson

On June 28, 2018 a panel of the U.S. Court of Appeals for the Ninth Circuit affirmed a summary judgment determining that certain environmental organizations had no Article III standing to pursue claims under the Endangered Species Act (ESA) and National Historic Preservation Act (NHPA) as to financing authorizations by the Export-Import Bank of the United States with respect to two liquid natural gas projects in Queensland, Australia near the Great Barrier Reef.  Center for Biological Diversity v. Export-Import Bank of the United States, ___ F.3d ___, No. 16-15946 (9th Cir. June 28, 2018).  The court found that plaintiffs failed to satisfy the redressability requirement under the “relaxed standard” for standing in “procedural rights” cases.  Slip op. at 14.  Continue reading 9th Circuit Affirms Summary Judgment of No Standing in Endangered Species Act Case