UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CORPORATE ACCOUNTABILITY LAB , Plaintiff,
v.
THE HERS HEY COMPANY , and THE RAINFOREST ALLIANCE , INC.,
Defendants. Civil Action No. 21-3225 (TFH)

O PINION AND ORDER
On October 27, 2021, Corporate Accountab ility Lab (“ CA L” ) filed a complaint in the Superior Court of the District of Columbia against The Hers hey Company (“ Hershey ”) and The Rainforest Alliance, Inc. for violations of the District of Columbia Consumer Protection Procedur es Act (“ the CPPA ”), D.C. Code § 28-3901, et seq . Compl. ¶¶ 86-92 [ECF N o. 1-1 ]. CAL alleges that the defendants have violated the CPPA by falsely and decep tively marketing Hershey ’ s Rainforest Alliance products as “sus taina ble” and “responsible.” Compl. at 1. CAL seeks only declaratory and injunctive re lief ; it does not seek monetary dama ges. Id. at ¶ 19. On December 8, 2021, Hershey removed the case fr om the Superior Court to this Court, asserting that jurisdiction ex ists under 28 U.S.C. § 1332(a) because “the parties are completely diverse and Plaintiff seeks injunctive relief that, if granted, would cost well in excess of $75,000 to implement .” See Notice of Removal ¶ 5 [ECF No. 1] ; 28 U.S.C. § 1332(a) (“ district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum of $75,000, exclusive of interest and costs, and is be tween . . . [c ]itizens of different- 2

- States. ” ) On Jan uary 21 , 2022, CAL moved to remand the case to Superior Court, arguing that
thi s Court lacks subject matter jurisdiction because “ Hers hey has failed to meet its burden in
esta blishing the amo unt in cont rovers y. ” Mem. of P. & A. at 2 [ECF No. 14

- 1]. CAL al so seeks to recover its fees and costs associated with litigating the motion to remand. Id. at 11. For the reasons that follow, the Court finds that this case should be remanded but declines to award CAL its fees and costs associated with removal

. As t he removing party, it is Hershey ’ s burden to demonstrate that th e Court has jurisdiction over this case. See Toxin Free USA v. J .M. Smuc ker Co. , 507 F. S upp. 3d 40, 43 ( D.D.C. 2020). In th e absence of such a showing, the Court is required to remand the case

. I d

. ; see also Rep ublic of Venezuela v. Philip Morri s , Inc. , 287 F.3d 19 2, 196 (D .C. Cir. 2002) ( “ When it appears that a district court lacks su bject matter jurisdiction over a case that has been removed fr om a state court, the district court must remand the case. ” ). Here, the re is no dispute
that th e parties have complete diversity of citizenship. The only issue, then, is whether Hers hey has met its burden of est ablishing the amount in controversy

. In order to calculate the amount in controversy i n CPPA actio ns such as this, courts in this District have unif ormly held that “ the cost of the i njunction [t o the defendants] must be d ivided pro rata among District of Colum bia consumers. ” Rasay v. Pepperidge Farm, I n c. , No.
2 2

- cv - 4 49 (BAH), 2022 WL 4300061, at *7 (D.D.C. Sept. 19, 20 2 2) (quoting Ea rth Island I nst. v. BlueTriton Brands , 583 F. Supp. 3d 105, 109 (D.D.C. 2022) (collecting cases) ). Allowing Hershey to “ rely on the total cost of com pliance would violate the non

- ag g regation princ iple , ”
Toxin Free USA , 50 7 F. Supp. 3d at 46 , which ap plies here even though CAL is the only organizationa l plaintiff , GMO Free USA v. Burt ’ s Bees , Inc ., No. 22

- cv - 01227 (DLF) , 2022 WL 16991568, at *1 (D.D .C. Nov. 15, 2022) . The C ourt also reject ’ s Hershey ’ s contention that th e- 3

- non - aggregation principle does not appl y here because “ the injunctive relief CAL seeks

— a wholesale change to Hers hey ’ s business practices

— is a ‘ common and undivided interest ’ with respect to the injunctions benef iciaries. ” Def. Opp ’ n at 12 ; see Earth Island Inst. v. Blue Triton Brands , 58 3 F. Supp. 3d. 10 5 (D.D

. C. 2022). Accordingly, the Co urt finds that the non

ag gre gation principle applies, and to meet its burden of establishing the amount in controversy for purposes of subject matter jurisdictio n Hershey must demonstrate that its cost of compliance with CAL ’ s requested injunctive rel ief would exc eed $75,00 0 per District of C o lumbia
consumer. Her shey ha s not even attempted to make th at showing

. The non

- aggregation rule similarly applies to requests for attorneys ’ fees in CPPA cases, and Hershey has failed to establ ish “ that the pro rata amount of attorneys ’ fees that would be attribut able to [CAL] as a member of the general public would exce ed $75,000. ” Earth Island , 538 F. Supp. 3d at 112. For all of these reasons, Hershey has f ailed to establish that this case satisfie s the amount in controversy requirement of 28 U .S.C. § 1332(a)

. Finally, the Court finds that CAL is not entitled to rec oup its costs and fees associated with removal

. P l. ’ s Mem. of P. & A. at 11

- 12. “ A bsent unusual circumstances, ” a court can require pay ment of costs and fees assoc iated with removal “ only where the removing party lacked a n objectively reasonable basis for seeking removal. ” Martin v. Franklin Capit al Corp. , 546 U.S. 132, 1 41 (2005). “ A basis for remov al is ob jectively reasonable when it ‘ has at least some log ical and precedential force. ’ ” Organ ic Consumers Ass ’ n v. R.C. Big elow, Inc. , 314 F. Supp. 3d 344, 358 ( D.D.C. 201 8) (quoting Knop v. Mackall , 645 F

. 3d 381, 383 (D.C. Cir.
2011 )) . Here, the Court cannot find that Hershey ’ s removal was “ objectively unreasonable ” absent “ c lear, controlling ca se law from the D.C. Circuit. ” Earth I sland , 538 F. Sup p. 3d at 112 ; see also Breathe DC v. Santa Fe Nat ’ l Tobacco Co. , 232 F . Supp. 3d 163, 172 (D.D.C. 2017)- 4

- ( “ Given the lack of controlling precedent in this Circuit . . . and not withstanding the thrust of the opinions in th e district courts in this Circuit, defendants d id not lack an ‘ object ively reasonable basis for remova l

. ’ ” )

. For the foregoing reasons, it is hereby
ORDERED that CAL ’ s Motion to Remand and for Fees and Co sts [ECF No. 14] is
G RANTED IN PART and DENIED IN PART . It is
FURTHER ORDERED that C AL ’ s motion to remand is GRANTED and the case is
RE MANDED to the Superior Court of the District of Columbia. It is
FURTHER ORDERED that CAL ’ s request for f ees and costs i s DENIED . And it is
FINALLY ORDERED that the Clerk of Court is directed to reman d this case to the Superi or Court of the District of Columbia.
SO ORDERED.

February 5 , 202 3

___________________________________ Thomas F. Hogan S ENIOR U NITED S TATES D ISTRICT J UDGE