Petition for Writ of Certiorari — B&G Foods North America, Inc., Petitioner v. Kim Embry, et al.
Supreme Court briefJul 25, 2022
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APPENDIX TABLE OF CONTENTS
OPINIONS AND ORDERS
Opinion of the United States Court of Appeals for
the Ninth Circuit, Published at 29 F.4th 527
(9th Cir. 2022) (March 17, 2022)........................ 1a
Order of the United States District Court for the
Eastern District of California Granting Motion
to Dismiss (October 7, 2020) ............................ 24a
REHEARING ORDER
Order of the United States Court of Appeals for the
Ninth Circuit Denying Petition for Rehearing
En Banc (April 26, 2022) .................................. 32a
OTHER DOCUMENTS
Plaintiff B&G Foods’s Complaint for Declaratory
and Injunctive Relief (March 6, 2020) ............. 33a
Defendants Embry and Glick’s Memorandum of
Points and Authorities in Support of Motion to
Dismiss Plaintiff’s Complaint (May 1, 2020) .. 62a
Plaintiff B&G Foods’s Opposition to Defendants’
Motion to Dismiss (June 1, 2020) .................... 95a
Defendants Embry and Glick’s Reply in Support
of Motion to Dismiss Plaintiff’s Complaint
(June 15, 2020) ............................................... 126a
Hearing on Motion to Dismiss, Transcript
(September 4, 2020)........................................ 144a
APPENDIX TABLE OF CONTENTS (Cont.)
Appellant B&G Foods’s Opening Brief
(February 16, 2021) ........................................ 161a
Brief of Amicus Curiae Consumer Brands
Association Urging Reversal
(March 1, 2021) ............................................... 214a
Appellees Embry and Glick’s Answering Brief
(June 25, 2021) ............................................... 245a
Appellant B&G Foods’s Reply Brief
(August 17, 2021) ........................................... 280a
Audio and Video of Oral Argument in the Ninth
Circuit (January 12, 2022) ............................. 308a
Appellant B&G Foods’s Petition for Rehearing En
Banc (March 31, 2022) ................................... 309a
App.1a
OPINION OF THE UNITED STATES COURT
OF APPEALS FOR THE NINTH CIRCUIT,
PUBLISHED AT 29 F.4th 527 (9th Cir. 2022)
(MARCH 17, 2022)
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
________________________
B&G FOODS NORTH AMERICA, INC.,
Plaintiff-Appellant,
v.
KIM EMBRY; NOAM GLICK,
Defendants-Appellees.
________________________
No. 20-16971
D.C. No. 2:20-cv-00526-KJM-DB
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, Chief District Judge, Presiding
Argued and Submitted January 12, 2022
San Francisco, California
Before: Ronald M. GOULD, Mark J. BENNETT,
and Ryan D. NELSON, Circuit Judges.
OPINION
BENNETT, Circuit Judge:
App.2a
Plaintiff-Appellant B&G Foods North America,
Inc. (“B&G”), a food manufacturer, sued DefendantsAppellees Kim Embry and her attorney, Noam Glick
(collectively, “Defendants”) under 42 U.S.C. § 1983.
B&G alleges that Defendants violated its constitutional
rights by threatening to sue and ultimately suing B&G
to enforce California’s Safe Drinking Water and Toxic
Enforcement Act of 1986, better known as Proposition
65 or Prop. 65. The district court dismissed B&G’s
complaint based on the Noerr-Pennington doctrine1
and denied leave to amend based on futility. B&G
challenges those determinations. We have jurisdiction
under 28 U.S.C. § 1291. We affirm the district court’s
decision that the Noerr-Pennington doctrine bars B&G’s
complaint, but we reverse the denial of leave to amend
and remand to give B&G an opportunity to amend.
I.
Facts and Procedural Background2
This case arises from Defendants’ enforcement of
Prop. 65, which, as relevant here, requires businesses to
notify customers if their products contain chemicals
“known to the state to cause cancer.” Cal. Health &
1 “The Noerr-Pennington doctrine, originally derived from the decisions in Eastern Railroad Presidents Conference v. Noerr Motor
Freight, Inc., 365 U.S. 127, 81 S. Ct. 523, 5 L.Ed.2d 464 (1961),
and United Mine Workers v. Pennington, 381 U.S. 657, 85 S. Ct.
1585, 14 L.Ed.2d 626 (1965), provides that litigation activity
(including pre-litigation cease-and-desist letters) cannot form the
basis of liability unless the litigation is a ‘sham.’” Rock River
Commc’ns, Inc. v. Universal Music Grp., Inc., 745 F.3d 343, 347
n.1 (9th Cir. 2014) (parallel citations omitted).
2 The facts are based on the allegations in B&G’s complaint, which
we accept as true and construe in the light most favorable to B&G.
See Ebner v. Fresh, Inc., 838 F.3d 958, 962 (9th Cir. 2016).
App.3a
Safety Code § 25249.6. California’s Office of Environmental Health Hazard Assessment (“OEHHA”)
maintains a list of such chemicals. See id. § 25249.8.
Acrylamide, the chemical at issue, is on the list based
solely on “laboratory studies in which pure acrylamide
was given to rats or mice.” Studies on humans have
shown that acrylamide does not increase the risk of
cancer. Indeed, OEHHA conceded in 2007 that acrylamide is not known to cause cancer in humans.
Any “person in the public interest” may bring a
Prop. 65 enforcement action upon satisfying certain
requirements. Cal. Health & Safety Code § 25249.7
(d). Private enforcers can seek injunctive relief and
penalties of up to $2,500 per day per violation. Id.
§ 25249.7(a), (b)(1). A private enforcer receives 25% of
any penalty collected, id. § 25249.12(d), and may also
request reasonable attorneys’ fees, Cal. Civ. Proc.
Code § 1021.5. The state receives 75% of the penalty
collected. Cal. Health & Safety Code § 25249.12(c).
Before bringing a private enforcement action, the
person must give sixty days’ notice of alleged violation
(“NOV”) to the Attorney General, other local prosecutors, and the alleged violator. Id. § 25249.7(d)(1). After
receiving the NOV, the Attorney General must issue
a no-merit letter if he believes the action is meritless,
but the failure to do so is not an endorsement that the
action has merit. Id. § 25249.7(e)(1). A no-merit letter
doesn’t prevent the person from bringing a private
enforcement action. If the Attorney General or other
prosecutor doesn’t begin a prosecution within the
sixty days’ notice period, the person may commence a
private enforcement action. Id. § 25249.7(d)(2).
California law offers businesses like B&G at least
two exemptions under Prop. 65. First, a business need
App.4a
not provide a cancer warning if it “can show that the
exposure poses no significant risk assuming lifetime
exposure at the level in question for substances known
to the state to cause cancer.” Id. § 25249.10(c). This is
known as the “No Significant Risk Level” (“NSRL”).
For some listed chemicals, like acrylamide, the OEHHA
has published a quantitative NSRL. See Cal. Code
Regs. tit. 27, § 25705. To determine whether exposure
from a chemical in a food product exceeds the NSRL,
the exposure is calculated based on the “average rate
of intake or exposure for average users of the consumer
product.” Id. § 25721(d)(4). Because this scientific
assessment is very burdensome and often inconclusive
(as enforcers disagree on how average consumption
should be calculated), businesses often choose to settle
when their products pose no health risks. Second,
another exemption applies to products “where chemicals
in food are produced by cooking necessary to render
the food palatable or to avoid microbiological contamination.” Id. § 25703(b)(1). But to qualify under this
exemption, a business must satisfy a vague standard
—that “sound considerations of public health support”
an alternative risk level. Id. § 25703(b). In sum, because
the standards are unclear and burdensome to prove,
businesses often choose to settle Prop. 65 cases for
certainty and to avoid paying substantial legal fees.
Embry, represented by Glick, has filed or threatened to file dozens of Prop. 65 acrylamide suits against
food businesses and retailers. Over the last few years,
Defendants have obtained about $1.7 million in penalties and fines from these actions. Consistent with
Defendants’ past practice, they began a Prop. 65 enforcement action against B&G. Glick, on behalf of Embry,
served an NOV on B&G and the Attorney General
App.5a
(and others). The NOV alleged that B&G was violating
Prop. 65 because its “Cookie Cakes” contain acrylamide
and B&G provides no cancer warning. The Attorney
General did not issue a no-merit letter and did not
begin enforcement proceedings. Embry, again represented by Glick, then sued B&G in state court, alleging
that B&G’s Cookie Cakes contain acrylamide and that
B&G’s failure to warn customers of that fact violates
Prop. 65. Although B&G doesn’t add acrylamide to its
Cookie Cakes, they contain some amount of acrylamide formed during the baking process.
On the same day Embry sued B&G, B&G sued
Defendants. B&G’s complaint alleges that the naturally
occurring acrylamide found in its Cookie Cakes does
not cause cancer. B&G claims Defendants are liable
under 42 U.S.C. § 1983 because the NOV and suit
against B&G requires B&G to engage in false compelled
speech in violation of the First Amendment. B&G seeks,
among other things, an injunction barring any threats
or lawsuits about acrylamide found in its Cookie Cakes,
a declaration that Prop. 65’s cancer warning as applied
to its Cookie Cakes violates the First Amendment,
and damages.
Defendants moved to dismiss the complaint under
Federal Rule of Civil Procedure 12(b)(6), arguing
that (1) they are not state actors,3 and (2) the Noerr3 A determination that Defendants are not state actors would be
dispositive, as “[l]ike the state-action requirement of the Fourteenth Amendment, the under-color-of-state-law element of § 1983
excludes from its reach ‘merely private conduct, no matter how
discriminatory or wrongful.’” Am. Mfrs. Mut. Ins. Co. v. Sullivan,
526 U.S. 40, 50, 119 S. Ct. 977, 143 L.Ed.2d 130 (1999) (quoting
Blum v. Yaretsky, 457 U.S. 991, 1002, 102 S. Ct. 2777, 73 L.Ed.2d
534 (1982)).
App.6a
Pennington doctrine bars the action. B&G argued in
opposition that Defendants are state actors in enforcing
Prop. 65. It also argued that the Noerr-Pennington
doctrine doesn’t apply because (1) the doctrine protects
First Amendment rights and states have no First
Amendment rights, and (2) the sham exception to NoerrPennington applies because Defendants’ Prop. 65
lawsuit is objectively meritless and brought for the
wrongful subjective purpose of extorting money from
businesses.
The district court granted the motion to dismiss
with prejudice. Assuming without deciding that Defendants were state actors, the court determined that NoerrPennington immunized Defendants from § 1983 liability. The district court rejected B&G’s argument that
Defendants had no First Amendment petitioning rights
protected by Noerr-Pennington. It reasoned that while
states themselves do not have First Amendment rights,
under Ninth Circuit precedent, government actors may
receive Noerr-Pennington immunity when they petition
on behalf of the public. The district court found that
Defendants’ petitioning activities—sending prelitigation communications and suing—were done to enforce
Prop. 65, which was a ballot measure sanctioned by
California voters, and thus Defendants were petitioning
on behalf of the public and entitled to Noerr-Pennington
immunity. The district court also rejected B&G’s arguments that Defendants’ Prop. 65 enforcement action was
a sham, because Defendants had been largely successful
given the allegation in B&G’s complaint that “over the
last few years, [Defendants] have extracted nearly $1.7
million in penalties and fines from food companies” in
acrylamide suits. After determining that the complaint
should be dismissed, the district court denied B&G leave
App.7a
to amend. The district court reasoned that any amendment would be futile because “[t]he Noerr-Pennington
doctrine would apply equally to all claims based on
Embry’s acrylamide litigation against B&G.” B&G
timely appealed.
II. Standard of Review
We review de novo “a district court’s dismissal
based on the Noerr-Pennington doctrine.” Kearney v.
Foley & Lardner, LLP, 590 F.3d 638, 643 (9th Cir. 2009).
In doing so, “[w]e accept as true the well-pleaded
factual allegations in the complaint” and construe
them in the nonmoving party’s favor. Ebner v. Fresh,
Inc., 838 F.3d 958, 962 (9th Cir. 2016).
“We review the denial of leave to amend for an
abuse of discretion, but we review the question of
futility of amendment de novo.” United States v. United
Healthcare Ins. Co., 848 F.3d 1161, 1172 (9th Cir. 2016)
(citations omitted).
III. Discussion
A. The Noerr-Pennington Doctrine
“The Noerr-Pennington doctrine derives from the
Petition Clause of the First Amendment and provides
that ‘those who petition any department of the government for redress are generally immune from statutory liability for their petitioning conduct.’” Kearney,
590 F.3d at 643-44 (quoting Sosa v. DIRECTV, Inc., 437
F.3d 923, 929 (9th Cir. 2006)). “The doctrine immunizes
petitions directed at any branch of government, including
the executive, legislative, judicial and administrative
agencies.” Manistee Town Ctr. v. City of Glendale, 227
F.3d 1090, 1092 (9th Cir. 2000). “[C]onduct incidental
App.8a
to the prosecution of [a] suit,” Columbia Pictures Indus.,
Inc. v. Pro. Real Est. Invs., Inc., 944 F.2d 1525, 1528
(9th Cir. 1991), like presuit demand letters and discovery communications, is also protected, see Sosa,
437 F.3d at 933-38; Kearney, 590 F.3d at 646. Though
the Noerr-Pennington doctrine first arose in the antitrust context, we have extended its application, including to § 1983 claims. See Manistee, 227 F.3d at 1092
(“The immunity is no longer limited to the antitrust
context; we have held that Noerr-Pennington immunity
applies to claims under 42 U.S.C. § 1983 that are
based on the petitioning of public authorities.”).
To determine whether a defendant’s conduct, which
allegedly violates a statute, is immunized under NoerrPennington, we apply a three-step analysis to determine:
(1) “whether the lawsuit imposes a burden on petitioning rights,” (2) “whether the alleged activities constitute
protected petitioning activity,” and (3) “whether the
statute[] at issue may be construed to [avoid] that
burden.” Kearney, 590 F.3d at 644. If the answer at each
step is “yes,” then a defendant’s conduct is immunized
under Noerr-Pennington. See Sosa, 437 F.3d at 932.
But such immunity is not absolute, as “neither the
Petition Clause nor the Noerr-Pennington doctrine protects sham petitions.” Id. We decide whether the sham
exception applies within step two of the three-part
analysis. See id. at 938.
1. Step One: whether B&G’s § 1983 suit
burdens Defendants’ petitioning rights
Step one asks “whether the success of [B&G’s
§ 1983] lawsuit would constitute a burden on petitioning
rights.” Kearney, 590 F.3d at 645. In conducting this
inquiry, we do not consider any alleged misconduct
App.9a
tied to the petitioning activities. Id. Rather, when the
petitioning activity is incidental to the prosecution of a
suit, the question is whether plaintiff’s lawsuit “places
a burden on [defendant’s] ability” to prosecute its suit.
Id. (holding that plaintiff’s suit, which challenged
defendants’ “discovery communications, interactions
with expert witnesses and contractors, and statements
to the court,” would burden defendants’ right to prosecute
an eminent domain proceeding because it would burden
defendants’ ability to bring such action).
B&G’s lawsuit burdens Defendants’ petitioning
activities. Indeed, if successful, B&G’s suit would completely prevent Defendants from engaging in their
petitioning activities—sending prelitigation communications and suing to enforce Prop. 65. See id. at 644
(filing a lawsuit is “the very act of petitioning”); Sosa,
437 F.3d at 938 (“prelitigation settlement demands”
are protected by the Petition Clause).
2. Step Two: whether Defendants’ conduct is
protected petitioning activity
Our focus at step two is whether Defendants’
conduct qualifies as “protected petitioning activity.”
Sosa, 437 F.3d at 933 (emphasis added). In making
this determination, we must first decide whether the
Petition Clause extends to Defendants’ conduct. See
id. at 933-38. If it does, we next decide whether the
sham exception to Noerr-Pennington applies. See id.
at 938. Sham petitioning is not protected. “NoerrPennington immunity is not a shield for petitioning
conduct that, although ‘ostensibly directed toward
influencing governmental action, is a mere sham to
cover what is actually nothing more than an attempt
to interfere directly with the business relationships of
App.10a
a competitor.’” Id. (quoting Noerr, 365 U.S. at 144, 81
S. Ct. 523).
We note that the Noerr-Pennington doctrine and its
sham exception arose in the antitrust context, and so
the sham-exception principles discuss whether petitioning is done for an anticompetitive purpose or to
interfere with a competitor’s business relationships.
See id. Because these principles may be inapt in nonantitrust contexts in which we have extended the
Noerr-Pennington doctrine, we do not treat them as
rigid requirements in such situations. Rather, we rely
on them to create analogous standards suitable to
each case’s context. See, e.g., Manistee, 227 F.3d at
1095 (relying on the antitrust-subjective-sham-inquiry
principles, which consider whether a process was used
for an “anticompetitive” purpose but determining in a
non-antitrust context that the corresponding inquiry
is whether defendants caused the harm by “abus[ing]
. . . the publicity/lobbying process” without any mention of an “anticompetitive” requirement).
a. Whether the Petition Clause
extends to Defendants’ conduct
Assuming Defendants are state actors, our precedent compels the conclusion that their activities were
protected by the Petition Clause. In Manistee, we held
that the Petition Clause protected lobbying efforts by
government actors—a city and its officials. Id. at 1093.
We reasoned that applying Noerr-Pennington to government actors was “consistent with [the] ‘representative
democracy’ rationale” for the doctrine, as government
“petitioning may be nearly as vital to the functioning
of a modern representative democracy as petitioning
that originates with private citizens.” Id.
App.11a
In Kearney, we extended Manistee to litigation
activities by government actors and their attorneys by
holding that conduct related to an eminent domain suit,
which allegedly violated § 1983, was protected petitioning. 590 F.3d at 644-45. We found that “[t]here is no
reason . . . to limit Manistee’s holding to lobbying
efforts,” id. at 644, and that the representative democracy rationale applied equally to lawsuits like eminent
domain proceedings in which “a governmental entity
acts on behalf of the public it represents . . . [in] seek[ing]
to take private property and convert it to public use.”
Id. at 645.
Defendants’ activities seek to enforce Prop. 65, an
initiative adopted by California voters to protect the
public from harmful chemicals. See AFL-CIO v.
Deukmejian, 212 Cal.App.3d 425, 260 Cal. Rptr. 479,
479 (1989). Thus, Defendants’ conduct falls squarely
within the conduct that we held was protected in
Kearney—litigation activities brought by government
officials to advance public goals. See Kearney, 590 F.3d
at 644-45. Defendants’ conduct is therefore protected
by the Petition Clause.
B&G’s attempts to distinguish Kearney are unconvincing. B&G argues that Kearney’s extension of
Manistee to litigation by government officials is nonbinding dicta because, in Kearney, we ultimately found
Noerr-Pennington inapplicable under the sham exception. But in reaching our ultimate holding in Kearney,
we applied our three-part test. See id. at 644. Thus,
before determining whether the sham exception applied,
we first determined that defendants’ activities amounted
to protected petitioning activities. See id. at 646. In doing
so, we engaged in a detailed analysis that included
analyzing our rationale and holding in Manistee,
App.12a
finding that Manistee should be extended to litigation
activities, and analyzing whether defendants’ conduct
was protected petitioning. See id. at 644-46. Our extension of Manistee was therefore not dicta, as whether
defendants’ conduct was protected petitioning under
Manistee bore directly on Noerr-Pennington’s applicability, and we resolved the issue after considered analysis. See United States v. McAdory, 935 F.3d 838, 843
(9th Cir. 2019) (“[W]here a panel confronts an issue
germane to the eventual resolution of the case, and
resolves it after reasoned consideration in a published
opinion, that ruling becomes the law of the circuit,
regardless of whether doing so is necessary in some
strict logical sense.” (alteration in original) (quoting
Cetacean Cmty. v. Bush, 386 F.3d 1169, 1173 (9th Cir.
2004))).
B&G argues that Kearney is relevant only when
government officials and their agents file eminent
domain proceedings. But nothing in Kearney suggests
such a limited holding. Indeed, in determining that
Manistee should be extended to conduct beyond lobbying,
we reasoned that Manistee’s rationale applied equally
to “lawsuits” brought by government actors. Kearney,
590 F.3d at 644 (“In a representative democracy, . . .
branches of government often ‘act on behalf of the
people’ and ‘intercede’ to ‘advance their constituents’
goals, both expressed and perceived.’ Such intercession
is just as likely to be accomplished through lawsuits—
the very act of petitioning—as through lobbying.”
(citation omitted) (quoting Manistee, 227 F.3d at 1093)).
And we did not distinguish between eminent domain
proceedings and other types of lawsuits. We therefore
reject B&G’s narrow view of Kearney.
App.13a
Finally, according to B&G, Kearney involved “intergovernmental petitioning” by a municipal official to a
state court. Thus, it argues that Kearney is distinguishable, because here, state officials have petitioned a
state court and so there is no protected “intergovernmental petitioning.” We are unpersuaded. Nothing in
Kearney suggests that our holding extending NoerrPennington immunity to governmental entities and
officials depended on whether it was a state or municipal official who had engaged in the petitioning activity.
Moreover, why should it matter? “[A] city is a political
subdivision of the state, created as a convenient agency
for the exercise of such of the governmental powers of
the state as may be intrusted to it.” City of Trenton v.
New Jersey, 262 U.S. 182, 185-86, 43 S. Ct. 534, 67
L.Ed. 937 (1923). We see no reason why Noerr-Pennington applicability should turn on whether the petitioner
is an official of a state or one of its political subdivisions.
In short, under our precedent, Defendants’ prelitigation communications and suit to enforce Prop. 65 are
protected by the Petition Clause.
b. Whether
applies
the
sham
exception
We have identified three circumstances in which
the sham exception might apply in the litigation
context:
[F]irst, where the lawsuit is objectively baseless and the defendant’s motive in bringing
it was unlawful; second, where the conduct
involves a series of lawsuits brought pursuant
to a policy of starting legal proceedings without
regard to the merits and for an unlawful
purpose; and third, if the allegedly unlawful
App.14a
conduct consists of making intentional misrepresentations to the court, litigation can be
deemed a sham if a party’s knowing fraud
upon, or its intentional misrepresentations
to, the court deprive the litigation of its
legitimacy.
Sosa, 437 F.3d at 938 (citations and quotation marks
omitted).
As an initial matter, we reject Defendants’ argument that these exceptions do not apply to the NOV
because the NOV should be construed as petitioning
directed toward a political entity rather than a judicial body. The NOV is conduct incidental to the prosecution of a suit, as it is a prerequisite to filing a private
enforcement action under Prop. 65 and, like a presuit
demand letter, essentially threatens litigation against
an alleged violator. See Cal. Health & Safety Code
§ 25249.7(d).
B&G argues that all three exceptions apply. But
B&G forfeited its argument on the third exception because it failed to raise such argument below. See Visendi
v. Bank of Am., N.A., 733 F.3d 863, 869-70 (9th Cir.
2013). We thus address only the first and second
exceptions.
Under the first exception, Defendants’ “lawsuit
must be objectively baseless in the sense that no reasonable litigant could realistically expect success on the
merits.” Pro. Real Est. Invs., Inc. v. Columbia Pictures
Indus., Inc., 508 U.S. 49, 60, 113 S. Ct. 1920, 123 L.Ed.2d
611 (1993). “If an objective litigant could conclude that
the suit is reasonably calculated to elicit a favorable
outcome, the suit is immunized under Noerr. . . . ”
Id. “Only if challenged litigation is objectively meritless
App.15a
may a court examine the litigant’s subjective motivation.” Id. The subjective element can be satisfied by
showing that Defendants “used government processes,
as opposed to the outcome of those processes, as a
mechanism to injure” B&G. Empress LLC v. City &
County of San Francisco, 419 F.3d 1052, 1057 (9th Cir.
2005) (citing Manistee, 227 F.3d at 1094-95). Compare
Pro. Real Est. Invs., 508 U.S. at 60-61, 113 S. Ct. 1920
(explaining that the subjective inquiry in the antitrust
context examines “whether the baseless lawsuit conceals
an attempt to interfere directly with the business
relationships of a competitor through the use of the
governmental process—as opposed to the outcome of
that process—as an anticompetitive weapon” (cleaned
up)) with Manistee, 227 F.3d at 1095 (relying on the
antitrust-subjective-sham-inquiry principles in determining in a non-antitrust context that the inquiry is
whether defendants caused the harm by “abus[ing]
. . . the publicity/lobbying process”).
B&G has not plausibly alleged that Defendants’
suit was objectively baseless. As relevant here, Prop.
65 requires a plaintiff to show that a defendant (1)
“knowingly and intentionally expose[d] any individual
to a chemical known to the state to cause cancer” and
(2) failed to give a “clear and reasonable warning to
such individual.” Cal. Health & Safety Code § 25249.6.
It is undisputed that B&G’s Cookie Cakes contain
some amount of acrylamide, that acrylamide is on the
list of chemicals “known to the state to cause cancer,”
and that B&G does not provide a warning. Given all
this, an objective litigant could have concluded that
Defendants’ suit was “reasonably calculated to elicit a
favorable outcome.” Pro. Real Est. Invs., 508 U.S. at
60, 113 S. Ct. 1920. Because B&G has failed to establish
App.16a
the objective element, we need not reach the subjective element. See id.4
We now turn to the second sham exception. We
agree with the district court that, under our precedent,
B&G’s complaint fails to plausibly allege the application
of the second sham exception. In USS-POSCO Industries
v. Contra Costa County Building & Construction
Trades Council, AFL-CIO, 31 F.3d 800 (9th Cir. 1994),
we explained that the second sham exception applies
“where the defendant is accused of bringing a whole
series of legal proceedings” without regard to the
merits, id. at 811. In such cases, “the question is not
whether any one [suit] has merit—some may turn out
to, just as a matter of chance—but whether they are
brought pursuant to a policy of starting legal proceedings without regard to the merits and for the purpose of injuring a market rival.” Id. To determine
whether the exception applies, we ask: “Were the legal
filings made, not out of a genuine interest in redressing
grievances, but as part of a pattern or practice of
successive filings undertaken essentially for purposes
of harassment?” Id.
In USS-POSCO Industries, the record showed
that “fifteen of the twenty-nine lawsuits” filed by
defendants had been successful. Id. We reasoned:
4 B&G also argues that, as in the labor-relations context, we need
not consider the objective element; we need consider only the
subjective element. But see White v. Lee, 227 F.3d 1214, 1232,
1232 n.16 (9th Cir. 2000) (stating that “[o]bjective baselessness
is the sine qua non of any claim that a particular lawsuit is not
deserving of First Amendment protection” and noting only one
exception to this rule, which arises in the labor relations
context). We decline to address this argument because B&G
forfeited it by failing to raise it below. See Visendi, 733 F.3d at
869-70.
App.17a
“The fact that more than half of all the actions as to
which we know the results turn out to have merit
cannot be reconciled with the charge that the unions
were filing lawsuits and other actions willy-nilly without regard to success.” Id. Thus, based on defendants’
success rate alone, we held that plaintiff had failed to
show that defendants’ conduct fell within the second
sham exception. Id.
B&G’s complaint alleges that “Defendants have
filed or threatened to file dozens of cases about acrylamide,” and “Defendants have extracted nearly $1.7
million in penalties and fines from food companies.”
There are no allegations about Defendants’ success
rate.5 Thus, the only reasonable inference is that
Defendants have been largely successful, which as in
USS-POSCO Industries, cannot be reconciled with
the theory that Defendants were threatening to sue
and suing without regard to success. See id. The district court therefore properly found the second sham
exception inapplicable, given the allegations in the
complaint.
In sum, Defendants’ conduct is protected petitioning
activity. Ninth Circuit precedent holds that government officials engaged in petitioning conduct on behalf
of the public, like that present here, are entitled to
Noerr-Pennington immunity. See Manistee, 227 F.3d at
1093; Kearney, 590 F.3d at 644-45. And B&G has failed
5 B&G’s reply brief points to information outside the complaint
to support the application of the second sham exception. Because
our review is limited to the complaint, we do not consider such
outside information in analyzing whether B&G has plausibly
alleged the applicability of a sham exception. See Orellana v.
Mayorkas, 6 F.4th 1034, 1042-43 (9th Cir. 2021).
App.18a
to show that any of the sham exceptions could apply
based on the allegations in the complaint. We thus
move to the final part of our three-part analysis.
3. Step Three: whether § 1983 can be
construed to avoid burdening Defendants’
protected petitioning activity
“[T]he Noerr-Pennington doctrine stands for a
generic rule of statutory construction, applicable to
any statutory interpretation that could implicate the
rights protected by the Petition Clause.” Sosa, 437
F.3d at 931. “Under the Noerr-Pennington rule of statutory construction, we must construe federal statutes
so as to avoid burdening conduct that implicates the
protections afforded by the Petition Clause unless the
statute clearly provides otherwise.” Id. Thus, we ask at
step three whether the statute—here 42 U.S.C. § 1983—
can be construed to avoid burdening Defendants’ Petition Clause rights. See id.; see also id. at 932 (“Where
. . . the burdened conduct could fairly fall within the
scope of the Petition Clause and a plausible construction
of the applicable statute is available that avoids the
burden, we must give the statute the reading that does
not impinge on the right of petition.”).
As we recognized in Sosa, we determined in Manistee that § 1983 cannot burden protected petitioning
rights. Id. at 932 n.6 (describing Manistee as a case in
which we “declin[ed] to interpret 42 U.S.C. § 1983 as
subjecting governmental entities or officials to liability
for activity that would otherwise be with the protection of the Noerr-Pennington doctrine”). In Manistee,
a city and its officials had lobbied a county not to lease
space from a shopping center. 227 F.3d at 1091. The
shopping center sued the city and its officials, “alleging
App.19a
that the defendants’ lobbying of the County had deprived
[the shopping center] of its property (potential lease
contracts) without due process of law in violation of
42 U.S.C. § 1983.” Id. We determined that the lobbying
was protected petitioning activity and declined to
interpret § 1983 as subjecting the government and its
officials to liability for activity protected by NoerrPennington:
Nor do we interpret § 1983 to subject government entities or officials to liability for
activity that is protected by Noerr-Pennington
immunity. . . . The petitioning or lobbying of
another governmental entity is insufficient
to “subject” . . . a person “to the deprivation of
any rights, privileges, or immunities secured
by the Constitution and laws.”
Id. at 1093 (quoting 42 U.S.C. § 1983). Thus, Manistee
held that § 1983 cannot burden protected petitioning
rights. Id.
B&G tries to limit Manistee’s holding to lobbying
only, as according to B&G, “[l]obbying is not the evil
that § 1983 was created to address.” But we said nothing
in Manistee to suggest that Noerr-Pennington immunity
should be limited to lobbying only. Rather, our statements in Manistee show that we believed that the NoerrPennington doctrine barred § 1983 claims based on
any protected petitioning conduct. See id. (“[W]e [do
not] interpret § 1983 to subject government entities or
officials to liability for activity that is protected by
Noerr-Pennington immunity.” (emphasis added)); id.
(“The petitioning or lobbying of another governmental
entity is insufficient to ‘subject’ . . . a person ‘to the
deprivation of any rights, privileges, or immunities
App.20a
secured by the Constitution and laws.’” (emphasis
added) (quoting 42 U.S.C. § 1983)).
B&G also argues that applying Noerr-Pennington
immunity would undermine one of the foundational
purposes of § 1983, which is to protect persons against
unconstitutional enforcement actions. To support its
argument, B&G discusses several cases in which § 1983
was used to remedy the unconstitutional enforcement
of state laws. B&G’s argument is flawed, however,
because it ignores that its lawsuit does not merely
seek to challenge a state law as unconstitutional; it
seeks to hold Defendants liable for their petitioning
conduct, thereby implicating the Noerr-Pennington
doctrine. 6 And the cases that B&G discusses fail to
advance its argument because none dealt with NoerrPennington immunity.
In short, even assuming Defendants were state
actors, the Noerr-Pennington doctrine bars B&G’s
6 For this reason, the circumstances here are unlike those in our
concurrently filed opinion in California Chamber of Commerce v.
Council for Education and Research on Toxics, No. 21-15745. In
California Chamber, the plaintiff seeks declaratory and injunctive
relief that would apply to only prospective Prop. 65 suits. See Cal.
Chamber of Com. v. Becerra, 529 F. Supp. 3d 1099, 1113 (E.D.
Cal. 2021); First Am. Compl. for Decl. and Inj. Relief at 25-26,
No. 2:19-CV-02019-DAD-JDP (E.D. Cal. Mar. 16, 2020), ECF No. 57.
In other words, unlike here, the plaintiff in California Chamber
does not seek to hold Prop. 65 enforcers liable for their past petitioning conduct.
We acknowledge that, as an example, a merits decision in California Chamber that Prop. 65 acrylamide litigation involves unconstitutional compelled speech might practically put an end to
such litigation. But because such a decision is only hypothetical for
now, it does not affect our Noerr-Pennington analysis.
App.21a
§ 1983 action challenging Defendants’ protected petitioning conduct.7
B. Leave to Amend
“Dismissal without leave to amend is improper
unless it is clear, upon de novo review, that the complaint could not be saved by any amendment.” Polich
v. Burlington N., Inc., 942 F.2d 1467, 1472 (9th Cir.
1991). We reverse the district court’s denial of leave to
amend because it is unclear whether amendment would
be futile.
B&G proposes additional allegations that could
support the application of the first sham exception,
which examines the objective reasonableness of
defendant’s suit and defendant’s subjective motivation.
See Pro. Real Est. Invs., 508 U.S. at 60, 113 S. Ct.
1920. For example, B&G says that it could allege that
Cookie Cakes “unquestionably qualif[ies] for the NSRL
safe harbor,” and that Defendants made no effort to
investigate their claims and filed without regard to
7 We need not and do not decide whether Defendants acted under
color of state law under § 1983. Although we have discretion to
do so, we believe it unwise given our decision to allow B&G to
amend. B&G’s amendments could affect the state actor issue. It
is also possible that B&G’s amendments could still fail to adequately
allege application of the sham exception, in which case it would
be unnecessary to reach the state actor issue. Also, if the state
actor issue needs to be reached, we would benefit from the district court’s analysis of the issue in the first instance. We also
decline to address B&G’s argument that the Noerr-Pennington
doctrine does not apply to claims for declaratory relief, as B&G
forfeited this argument by raising it for the first time in its reply
brief. See Cedano-Viera v. Ashcroft, 324 F.3d 1062, 1066 n.5 (9th
Cir. 2003) (“[W]e decline to consider new issues raised for the
first time in a reply brief.”).
App.22a
the merits. A reasonable factfinder could infer from
these allegations that Defendants’ suit was objectively
baseless because they knew (or should have known)
that B&G was not violating Prop. 65 but filed suit
anyway.
The new allegations could also support the subjective element, as they could support the inference that
Defendants threatened and filed suit because they
wanted to improperly pressure B&G into settling, not
because they believed that they could achieve their
objective based on the merits. See Rock River Commc’ns,
Inc. v. Universal Music Grp., Inc., 745 F.3d 343, 353
(9th Cir. 2014) (holding that allegations that a party
hoped to enforce its “rights through the threat of litigation rather than through actual litigation” could
“satisfy[] the second criterion for the sham exception”).
It is also unclear whether B&G could plausibly
allege application of the second sham exception, which
arises when defendant’s “conduct involves a series of
lawsuits ‘brought pursuant to a policy of starting
legal proceedings without regard to the merits’ and
for an unlawful purpose.” Sosa, 437 F.3d at 938 (quoting
Kottle v. Nw. Kidney Ctrs., 146 F.3d 1056, 1060 (9th
Cir. 1998)). B&G points to information in the amicus
brief that Embry, while represented by Glick or his cocounsel, has withdrawn 129 of her 260 NOVs concerning acrylamide and has settled only 25 cases. This
information, which was omitted from the complaint,
could support an inference that Defendants’ acrylamide litigation was unsuccessful, as only a fraction
of their threatened suits succeeded. Such an inference
would undermine the district court’s sole basis for
finding the second sham exception inapplicable. Moreover, that inference, together with the other new and
App.23a
existing allegations—for example, that Defendants
file without regard to the merits and undertake no
efforts to investigate their claims, and businesses like
B&G will often settle because Prop. 65 suits are burdensome and very expensive to defend—could support
that Defendants’ suits were not based on merit but
were brought pursuant to a policy of improperly
pressuring businesses, like B&G, to settle.
Because it is unclear whether B&G could allege
the application of a sham exception to the NoerrPennington doctrine in an amended complaint, the
district court erred in dismissing the complaint without
leave to amend.
IV. Conclusion
The district court properly concluded that B&G’s
§ 1983 suit is barred by the Noerr-Pennington doctrine,
given the allegations in the complaint. But the district
court erred in denying leave to amend because it is
unclear whether amendment would be futile. We
therefore reverse the dismissal of B&G’s complaint
and remand to allow B&G an opportunity to amend.8
The parties shall bear their own costs on appeal.
AFFIRMED in part, REVERSED in part, and
REMANDED.
8 Nothing in this opinion should be construed as precluding B&G
from raising on remand its arguments that have been forfeited
in this appeal. B&G should be allowed to offer amendments going
to such issues.
App.24a
ORDER OF THE UNITED STATES
DISTRICT COURT FOR THE EASTERN
DISTRICT OF CALIFORNIA GRANTING
MOTION TO DISMISS
(OCTOBER 7, 2020)
UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF CALIFORNIA
________________________
B&G FOODS NORTH AMERICA, INC.,
Plaintiff,
v.
KIM EMBRY and NOAM GLICK,
Defendants.
________________________
No. 2:20-cv-00526-KJM-DB
Before: Kimberly J. MUELLER, Chief District Judge.
ORDER
Defendants Kim Embry and Noam Glick move to
dismiss the complaint brought by plaintiff B&G Foods
North America, Inc. (B&G). The motion is fully briefed.
See Opp’n, ECF No. 23; Reply, ECF No. 24; Supp. Br.,
ECF No. 31; Supp. Resp., ECF No. 32. The court heard
oral argument by video teleconferencing on September 4, 2020. J. Noah Hagey and David Kwasniewski
appeared for B&G, and Noam Glick appeared for
App.25a
defendants.1 The motion is granted, and the complaint
is dismissed with prejudice, as explained below.
I.
Background
B&G manufactures Snackwell’s Devils’ Food
Cookie Cakes. Compl. ¶ 13, ECF No. 1. The process of
baking the cookies causes the formation in the cookies
of acrylamide, a naturally occurring byproduct of all
baking. Id. ¶¶ 16–18. B&G alleges that Embry, represented by Glick, contends acrylamide causes cancer and
has sued many businesses under a California statute
that permits private plaintiffs to enforce California
Proposition 65, a provision that requires businesses to
notify their customers of potential exposures to cancercausing chemicals. See Compl. ¶¶ 1, 2, 7; California
Health & Safety Code § 25249.7(d). B&G is among the
targets of Embry’s complaints. See RJN Ex. D, ECF No.
18–7 (showing Embry filed suit in Alameda County
Superior Court against B&G immediately prior to filing
this suit).2
In its complaint, B&G asserts acrylamide does
not cause cancer. Compl. ¶¶ 23–26. It therefore claims
Proposition 65 violates the First Amendment by compelling it to warn customers that its cookies might give
1 Noam Glick appeared as counsel on his own behalf and for
Embry.
2 The court takes judicial notice that this lawsuit was filed and
that it rests on the allegations contained in Embry’s complaint.
See Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746
n.6 (9th Cir. 2006) (noting that courts may take judicial notice of
court filings and similar matters of public record). In that respect,
B&G’s request for judicial notice is granted. The remainder of the
request is denied as moot.
App.26a
them cancer. Id. ¶¶ 73–80. B&G also contends Proposition 65 is unconstitutionally vague under the Fourteenth Amendment because it does not provide adequate
notice to B&G that the level of acrylamide in its
products could give rise to liability. Id. ¶¶ 82–87. B&G
seeks an injunction against threats and lawsuits
about acrylamide. Id., Prayer for Relief A. B&G also
seeks a declaration that a Proposition 65 warning
requirement violates the First Amendment as applied
to its cookies. Id., Prayer for Relief B. Embry and
Glick move to dismiss under Rule 12(b)(6).
II. Legal Standard
Under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, a party may move to dismiss a complaint
for “failure to state a claim upon which relief can be
granted.” A court may dismiss “based on the lack of
cognizable legal theory or the absence of sufficient
facts alleged under a cognizable legal theory.” Balistreri
v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.
1990). The court must construe the complaint in the
light most favorable to the plaintiff and accept plaintiffs’
factual allegations as true. Erickson v. Pardus, 551
U.S. 89, 93-94 (2007).
III. Discussion
Embry and Glick argue the court should dismiss
the complaint because (1) they are not state actors; (2)
the Anti-Injunction Act bars the action; and (3) the
Noerr-Pennington doctrine bars the action. At hearing,
B&G for the first time raised the argument that
Mitchum v. Foster, 407 U.S. 225 (1972) held § 1983
to provide an exception to the Anti-Injunction Act. The
court permitted defendants to file a supplemental brief,
App.27a
in which they conceded Mitchum precludes the application of the Anti-Injunction Act here; they argued for
the first time the court should abstain under Younger
v. Harris, 401 U.S. 37 (1971). Supp. Br., ECF No. 31.
Plaintiff submitted a response addressing this argument. Supp. Resp., ECF No. 32. As discussed below, the
court need not address the state action doctrine, the
Anti-Injunction Act, Mitchum or the Younger abstention
doctrine because application of the Noerr-Pennington
doctrine is dispositive.
The Noerr-Pennington doctrine was first articulated
to provide immunity from antitrust liability for market
actors lobbying the government for favorable action.
Eastern Railroad Presidents Conference v. Noerr Motor
Freight, Inc., 365 U.S. 127 (1961); United Mine Workers
of Am. v. Pennington, 381 U.S. 657 (1965) (union’s
wage agreements with multiemployer bargaining agreement could not be basis of liability under Sherman
Act). The doctrine has since been extended substantially. It derives from the First Amendment’s Petition
Clause, which guarantees “the right of the people . . . to
petition the Government for a redress of grievances,”
Sosa v. DIRECTV, Inc., 437 F.3d 923, 929 (9th Cir.
2005), and provides immunity against claims based on
petitions to any government department. Id. Lawsuits
are petitions in this respect. Id. at 930. To provide
“breathing space” to the right to petition, the NoerrPennington doctrine also immunizes “conduct incidental to the prosecution of the suit,” such as demand
letters and related prelitigation communications. Id.
at 935–36. Embry and Glick’s Proposition 65 demand
letters, prelitigation communications and lawsuits thus
qualify as petitions entitled to protection under the
Noerr–Pennington doctrine.
App.28a
B&G asserts the Noerr-Pennington doctrine does
not apply to state actors because states have no First
Amendment rights. Opp’n at 18 (citing Aldrich v. Knab,
858 F. Supp. 1480, 1491 (W.D. Wash. 1994) (discussing
effect of state ownership of broadcast licenses on licensees’ First Amendment rights)). This is not the case
for the purposes of Noerr-Pennington immunity, however. States qua states do not have First Amendment
rights, but the Noerr-Pennington doctrine protects
“petitioning” by government actors, provided they are
acting in their official capacities on behalf of the
public. Manistee Town Ctr. v. City of Glendale, 227
F.3d 1090, 1094 (9th Cir. 2000); see also Kearney v.
Foley & Lardner, LLP, 590 F.3d 638, 645 (9th Cir.
2009). In Manistee, for example, the Ninth Circuit
held that city officials who lobbied voters, the press
and county officials to oppose the county’s prospective
commercial lease were entitled to the protection of the
Noerr-Pennington doctrine because they “intercede,
lobby, and generate publicity to advance their constituents’ goals, both express and perceived.” 227 F.3d at
1091. When acting in a representative capacity for
constituents, in other words, state actors may receive
the immunity.
In Kearney, the Ninth Circuit extended immunity
to a law firm representing a government entity in an
eminent domain proceeding. Kearney, 590 F.3d at 644.
The Kearney court clarified “[t]here is no reason to
limit Manistee’s holding to lobbying efforts.” Id. “Such
intercession is just as likely to be accomplished through
lawsuits—the very act of petitioning—as through
lobbying.” Id. at 644–45 (citation omitted).
The court here assumes without deciding that if
Embry and Glick are “state actors” who can be sued
App.29a
under 42 U.S.C. § 1983, they would be entitled to the
protections of the Noerr-Pennington doctrine just the
same: Proposition 65 was a ballot measure subject to
a popular vote, so when private plaintiffs such as
Embry enforce Proposition 65, they are engaged in an
activity sanctioned by California voters and are acting
on behalf of the public. DiPirro v. Bondo Corp., 153
Cal. App. 4th 150, 183 (2007) (“Citizens bringing Proposition 65 suits need not plead a private injury and
instead are deemed to sue in the public interest.”
(citation and internal quotation marks omitted)).
B&G argues that Embry and Glick are not protected by the Noerr-Pennington doctrine because their
acrylamide lawsuits are “sham litigation.” Opp’n at
18. It is true the Noerr-Pennington doctrine offers no
shield to litigation in pursuit of an ulterior and
improper motive, such as cases designed to “interfere
directly with the business relationships of a competitor.”
Prof. Real Estate Investors, Inc. v. Columbia Pictures
Indus., Inc., 508 U.S. 49, 51 (1993) (internal quotation
marks, citation omitted). A series of lawsuits filed
without regard to their merits and for an injurious
purpose are a sham entitled to no protection. See
Kottle v. Northwest Kidney Centers, 146 F.3d 1056,
1060 (9th Cir. 1998). “The inquiry in such cases is
prospective: Were the legal filings made, not out of a
genuine interest in redressing grievances, but as a
part of a pattern or practice of successive filings
undertaken essentially for purposes of harassment?”
USS-POSCO Industries v. Contra Costa Cty. Bldg. &
Const. Trades Council, AFL-CIO, 31 F.3d 800, 811
(9th Cir. 1994).
App.30a
A plaintiff’s successful history in the disputed litigation may rebut claims of a sham. See, e.g., id. (litigation not sham because more than half the supposed
sham lawsuits had merit). That is the case here. B&G’s
own allegations show Embry and Glick’s litigation is
not a sham, at least not completely. B&G claims “over
the last few years, [they] have extracted nearly $1.7
million in penalties and fines from food companies” in
acrylamide lawsuits. Compl. ¶ 2. The Noerr-Pennington
doctrine thus bars B&G’s complaint, which must be
dismissed.
Ordinarily a court “should freely give leave [to
amend] when justice so requires.” Fed. R. Civ. P. 15
(a)(2). The Ninth Circuit has “stressed Rule 15’s policy
of favoring amendments.” Ascon Properties, Inc. v.
Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989). But
“[l]eave need not be granted” if amendment would
constitute “an exercise in futility.” Id. (citations omitted).
Amendment would be futile here. The Noerr-Pennington
doctrine would apply equally to all claims based on
Embry’s acrylamide litigation against B&G. At hearing,
B&G was not able to propose viable amendments.
Dismissal is thus granted with prejudice.
App.31a
IV. Conclusion
For the reasons above, the defendants’ motion to
dismiss (ECF No. 18) is GRANTED and the complaint
is dismissed with prejudice. The clerk is directed to
close the case.
IT IS SO ORDERED.
/s/ Kimberly J. Mueller
Chief District Judge
Dated: October 6, 2020
App.32a
ORDER OF THE UNITED STATES
COURT OF APPEALS FOR THE NINTH
CIRCUIT DENYING PETITION FOR
REHEARING EN BANC
(APRIL 26, 2022)
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
________________________
B&G FOODS NORTH AMERICA, INC.,
Plaintiff-Appellant,
v.
KIM EMBRY; NOAM GLICK,
Defendants-Appellees.
________________________
No. 20-16971
D.C. No. 2:20-cv-00526-KJM-DB
Eastern District of California, Sacramento
Before: GOULD, BENNETT, and
R. NELSON, Circuit Judges.
ORDER
The panel has voted to deny the petition for rehearing en banc. [Dkt. 53].
The full court has been advised of the petition for
rehearing en banc and no judge has requested a vote
on whether to rehear the matter en banc. Fed. R. App.
P. 35.
The petition for rehearing en banc is DENIED.
App.33a
PLAINTIFF B&G FOODS’S COMPLAINT FOR
DECLARATORY AND INJUNCTIVE RELIEF
(MARCH 6, 2020)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
________________________
B&G FOODS NORTH AMERICA, INC.,
Plaintiff,
v.
KIM EMBRY and NOAM GLICK, acting as
enforcement representatives under California
Proposition 65 on behalf of the State of California,
Defendants.
________________________
Case No. 2:20-cv-00526-KJM-DB
J. Noah Hagey, Esq. (SBN: 262331)
hagey@braunhagey.com
Matthew Borden, Esq. (SBN: 214323)
borden@braunhagey.com
David H. Kwasniewski, Esq. (SBN: 281985)
kwasniewski@braunhagey.com
BRAUNHAGEY & BORDEN LLP
351 California Street, 10th Floor
San Francisco, CA 94104
Telephone: (415) 599-0210
Facsimile: (415) 599-0210
App.34a
ATTORNEYS FOR PLAINTIFF
B&G FOODS NORTH AMERICA, INC.
___________________
COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF
___________________
Plaintiff B&G Foods North America, Inc. (“Plaintiff”) brings this action for declaratory relief under 42
U.S.C. § 1983 and the First Amendment of the U.S.
Constitution against supposed Proposition 65 enforcement representatives of the State of California, and
alleges as follows:
PRELIMINARY STATEMENT
1. Everyone—grown-ups, kids, and even blue furry
monsters—likes cookies. Plaintiff B&G Foods likes
cookies. That’s why it sells and distributes devil’s food
cookie cakes around the country (the “Cookie Cakes”).
Like all other cookies, Cookie Cakes are baked and,
because of that, Plaintiff faces legal claims by representatives of the State of California asserting that the
products somehow cause cancer. Defendants are serial
enforcement agents under California’s Proposition 65
regime who have threatened to prosecute Plaintiff
unless all Cookie Cake labels are changed to include a
bold disclaimer that they could kill and “cause cancer”
due to the presence of a naturally-occurring substance
called acrylamide. Defendants and the State’s allegations are false and unconstitutional. Plaintiff accordingly seeks protection from the compelled false speech
and requests injunctive and other relief.
App.35a
2. Defendants have filed or threatened to file
dozens of cases about acrylamide against a variety of
food businesses and retailers, including Plaintiff. Acrylamide is a naturally occurring substance that arises
when foods are cooked. Most scientists, including
European and U.S. government scientists agree that
acrylamide in food does not cause cancer in humans.
Nonetheless, over the last few years, Defendants have
extracted nearly $1.7 million in penalties and fines
from food companies in frivolous acrylamide suits.
Tens of millions more have been obtained by other
State enforcers, all of which is done under the supervision, regulation and guidance of the State and its
Attorney General’s office.
3. Defendant’s business model is pernicious and
operates through the regulation, encouragement and
self-interest of the California government. After testing
products, Defendants are enabled by the State to
threaten to file suit unless the products’ manufacturer
(or retailer) pays a massive penalty or agrees to
change its label to warn consumers that the product
contains substances “known” to cause cancer. The
State permits Defendants to file suit against products
containing modest trace amounts of substances, even
if there is no possible health effect. This includes
substances like acrylamide that arise naturally, for
example, by baking a cookie. The resulting penalties
and fines collected by Defendants and the State do
nothing to improve public safety and serve only to
enrich lawyers and their accomplices.
4. Defendants have persisted in threatening suit
against Plaintiff despite having no evidence that
acrylamide or Cookie Cakes poses any health risk.
Acrylamide has been present in cooked foods—like
App.36a
sweet potatoes, nuts, and wooly mammoth—since the
discovery of fire. Many of these foods are so healthy
that U.S. government agencies encourage people to
eat them because they reduce the risk of cancer. The
State also has admitted under oath that, despite
listing acrylamide as a dangerous chemical, it has no
knowledge of that fact. Still, the State continues to
allow and encourage its representatives to threaten
food companies with unconstitutional speech requirements, lest they not pay a sizable penalty to the enforcer
and the State.
5. Plaintiff accordingly seeks protection from this
activity, which violates the First Amendment and
Section 1983 of the Civil Rights laws.
PARTIES
6. Plaintiff B&G Foods North America, Inc. dates
back to 1889, when two immigrant families, the Blochs
and Guggenheimers, started a business selling pickles
in Manhattan. Today, Plaintiff carries on their legacy
by selling a variety of high-quality frozen and shelfstable foods throughout the country, including Cookie
Cakes sold under the SNACKWELLS® brand. Plaintiff is a Delaware corporation with its headquarters in
Parsippany, New Jersey.
7. Defendant Kim Embry is a serial Proposition
65 litigant who seeks to act on behalf of the State of
California in suing and threatening to sue dozens of
businesses based on the alleged presence of acrylamide
in their products. She brings these suits in the “interest
of the general public” of the State of California. On
information and belief, Embry is a citizen of California
who directly and indirectly consults with the State
App.37a
and its representatives to initiate Proposition 65 actions,
including against Plaintiff.
8. Defendant Noam Glick is, upon information
and belief, a citizen of California and lawyer who
seeks to represent the “interest of the general public”
of the State of California in bringing Proposition 65
actions.
9. As described below, Defendants are state actors
purporting to act on behalf of the government of
California.
a.
The State is intimately entwined in, encourages, and closely monitors Defendants’ Proposition 65 litigation, which it directly and
indirectly regulates, controls and guides
through the California Attorney General’s
office.
b.
Prior to initiating any private action, bounty
hunters like Defendants serve a Notice of
Violation on the State through the Attorney
General’s office, together with evidence supporting the supposed merit of the bounty
hunter’s allegations. This is so that the State
can regulate, monitor and encourage the proposed action. If the State believes the notice
lacks merit, it serves a letter on the parties
to object to any action. Cal. Health & Safety
Code § 25249.7(f). In doing so, the State takes
an active role as gatekeeper to permit supposedly meritorious cases to proceed and to
reject or contest cases that lack merit.
c.
The State also monitors the activity of its
Proposition 65 enforcement representatives
such as Defendants by, among other things:
App.38a
requesting pre-approval of any potential
settlement or consent judgment, receiving
and reviewing notices regarding the progress
of acrylamide case litigation, intervening in
particular cases, regulating the conduct of
representatives, demanding to receive proportional cuts of civil penalties, and retaining
the ability to change, alter or amend the regulations governing a particular Proposition 65
chemical and enforcement activity.
d.
The Attorney General specifically regulates
individual settlement agreements involving
Defendants. For example, in 2018, Defendants
attempted to settle a Proposition 65 claim
against Earthbound Farm, LLC. The Attorney
General objected to this settlement, which
included $3,000 in civil penalties and a $37,000
attorney fee award, because (1) Defendant
Embry received more than 25% of the civil
penalties; (2) the settlement “is not likely to
result in any benefit to the public,” and (3)
Defendant Glick’s $37,000 fee award was unreasonable. The Attorney General concluded
the settlement agreement was “contrary to
the law, against public policy, and not enforceable.” Attorney General’s Mar. 2, 2018,
Letter re Embry v. Earthbound Farm, Out-ofCourt Proposition 65 Settlement. In response
to this letter, the parties rescinded the settlement agreement and have not submitted
another for review.
e.
Defendants’ actions are so substantively “entwined” in the State’s enforcement regime
that their action constitutes state conduct by
App.39a
the government. Indeed, without the State’s
imprimatur, support, guidance and regulations, Defendants would not have the ability
to threaten and impose upon Plaintiff’s constitutional rights. See Burton v. Wilmington
Parking Auth., 365 U.S. 715, (1961) (where
restaurant leased premises from a government
agency and both parties benefited financially
from the arrangement, restaurant’s racial discrimination constituted state action).
f.
Defendants also are performing a quintessential state function by acting as California’s
enforcement arm relating to the presence of
targeted chemicals in the environment. Moreover, the State is not merely a passive actor
in such activity, but has an entire department devoted to regulating, following and
encouraging precisely the unconstitutional
activity at issue here. See Lee v. Katz, 276 F.3d
550, 554-57 (9th Cir. 2002) (private lessee of
a public outdoor area owned by the city performed a traditional sovereign function when
it sought to regulate free speech activity on
the land).
g.
Defendants are further engaged in state action
because, on information and belief, they conspire with state officials to deprive businesses
of their free speech right by enforcing Proposition 65 in violation of the First Amendment
to the United States Constitution, in exchange
for which state officials receive substantial
compensation. See Dennis v. Sparks, 449 U.S.
24 (1980) (private person who bribed a judge
App.40a
to obtain an injunction was engaged in state
action).
h.
And, last but not least, Defendants are serving
as government actors because California has
interjected itself into this dispute by virtue
of the fact that Proposition 65 is a state statute
and Defendants have filed suit in state court.
See Grant v. Johnson, 15 F.3d 146, 149 (9th
Cir. 1994) (existence of state statute and
necessary involvement of state judge provided
state action necessary to present challenge
to Oregon statute allowing appointment of
temporary guardian ad litem for person
deemed mentally incompetent).
JURISDICTION AND VENUE
10. This Court has federal question subject matter
jurisdiction under Title 28, Section 1331 of the United
States Code, which confers original jurisdiction on the
federal district courts over actions arising under the
Constitutions or laws of the United States. Federal
courts, including this judicial district, have assumed
jurisdiction over similar federal constitutional challenges to the enforcement of Proposition 65. See, e.g.,
Nat’l Ass’n of Wheat Growers v. Zeisse, 309 F. Supp. 3d
842 (E.D. Cal. 2018).
11. Alternatively, should Defendants somehow
be deemed non-state actors, then subject matter jurisdiction exists under Title 28, Section 1332 of the
United States Code, which confers original jurisdiction on federal district courts over actions between
private citizens of different states where the amount
in controversy exceeds $75,000.
App.41a
12. Venue is proper under Title 28, Section 1391
(b)(b)(2) because a substantial part of the events giving
rise to Plaintiff’s claims occurred in this district.
FACTS
A.
Plaintiff’s Cookie Cakes Are Good to Eat
13. Plaintiff’s Cookie Cakes are reduced fat chocolate cookies with marshmallow and fudge coating. They
are sold nationwide and in California and include
products sold under the SNACKWELL’S® brand:
14. The interior cookie portion of the Cookie
Cakes is baked, just like any other cookie. Otherwise
it would be an unpalatable mess of sugar, flour, and
chocolate.
15. Plaintiff’s Cookie Cakes are free from high
fructose corn syrup and partially hydrogenated oils.
They do not cause cancer.
App.42a
B.
Baked Products Naturally Create Acrylamide
During the Cooking Process
16. Plaintiff does not add acrylamide to its products, which according to the FDA has likely “always
been present in cooked foods.” Virtually every cookie
or bread product on earth that is baked has acrylamide in it.
17. Acrylamide forms during a chemical reaction, known as the Maillard reaction and arises when
food is baked, roasted, grilled or fried.
18. To create acrylamide, sugars such as glucose
or fructose react with a naturally occurring free amino
acid, asparagine.
19. The State recognizes that the substance is
widespread in ordinary products like breakfast cereals,
roasted coffee, crackers, bread crusts, roasted asparagus, French fries, potato chips, canned sweet potatoes,
canned black olives, roasted nuts, and toast.
20. Acrylamide also naturally forms in uncooked
foods such as nuts. See OEHHA, Acrylamide Fact
Sheet (Feb. 2019), https://www.p65warnings.ca.gov/
sites/default/files/downloads/ factsheets/acrylamide_
fact_sheet.pdf.
21. And, acrylamide is created when cooking at
home, whether in the oven, on the grill or in the skillet.
See, e.g., Letter from Lester M. Crawford, DVM, Ph.D,
Deputy Commissioner, FDA, to Joan E. Denton, M.S.,
Ph.D, Director, OEHHA (July 13, 2003).
C.
Acrylamide in Plaintiff’s Cookie Cakes Is Safe
22. Plaintiff’s Cookie Cakes are not dangerous.
App.43a
23. They do not cause cancer in people and
Defendants have no evidence to the contrary.
24. Nor is the alleged amount of acrylamide in
Plaintiff’s products harmful to humans.
25. The federal government has studied acrylamide and does not recommend avoiding foods that
contain the substance. Many of the foods consumers
are encouraged to eat by the FDA, such as nuts, grains
and other foods, contain acrylamide.
26. The National Cancer Institute (“NCI”), the federal government’s principal agency for cancer research
and training, states that “a large number of epidemiologic studies (both case-control and cohort studies) in
humans have found no consistent evidence that dietary
acrylamide exposure is associated with the risk of any
type of cancer.” NCI, Acrylamide and Cancer Risk (Dec.
5, 2017), https://www.cancer.gov/about-cancer/causesprevention/risk/diet/acrylamide-factsheet.
27. The American Cancer Society recently has
re-confirmed its review of epidemiological studies
which “show that dietary acrylamide isn’t likely to be
related to risk for most common types of cancer.”
American Cancer Society, Acrylamide and Cancer Risk
(Feb. 11, 2019), https://www.cancer.org/cancer/cancercauses/acrylamide.html. The American Cancer Society
further states that it has no idea whether acrylamide
increases cancer risk, stating that it is “not yet clear
if the levels of acrylamide in foods raise cancer risk.
. . . ” Id.
28. In a 2012 systematic review published in the
European Journal of Cancer Prevention, researchers
found “no consistent or credible evidence that dietary
App.44a
acrylamide increases the risk of any type of cancer in
humans, either overall or among nonsmokers”:
After an extensive examination of the published literature, we found no consistent or
credible evidence that dietary acrylamide
increases the risk of any type of cancer in
humans, either overall or among nonsmokers.
In particular, the collective evidence suggests
that a high level of dietary acrylamide intake
is not a risk factor for breast, endometrial, or
ovarian cancers. . . .
In conclusion, epidemiologic studies of dietary
acrylamide intake have failed to demonstrate
an increased risk of cancer. In fact, the sporadically and slightly increased and decreased
risk ratios reported in more than two dozen
papers examined in this review strongly
suggest the patter one would expect to find
for a true null association over the course of
a series of trials.
L. Lipworth, et al., Review of Epidemiologic Studies of
Dietary Acrylamide Intake and the Risk of Cancer,
EUROPEAN J. OF CANCER PREVENTION, Vol. 21(4):37586 (2012); see also C. Pelucchi, et al., Dietary Acrylamide
& Cancer Risk: An Updated Meta-Analysis, INT’L J. OF
CANCER, Vol. 136(12):2912–22 (2015) (“This systematic
review and meta-analysis of epidemiological studies
indicates that dietary acrylamide is not related to the
risk of most common cancers.”); A. Kotemori, et al.,
Dietary Acrylamide Intake and Risk of Breast Cancer:
the Japan Public Health Center-Based Prospective
Study, CANCER SCIENCE, Vol. 109(3):843-53 (2018) (“In
conclusion, dietary acrylamide intake was not associated
with the risk of breast cancer in this population-based
App.45a
prospective cohort study of Japanese women.”); M.
McCullough, et al., Dietary Acrylamide Is Not Associated
with Renal Cell Cancer Risk in the CPS-II Nutrition
Cohort, Cancer Epidemiology, BIOMARKERS & PREVENTION, Vol. 28(3):616-619 (2019) (“In conclusion, we
found no evidence that greater dietary acrylamide
intake was associated with risk of RCC [renal cell
carcinoma].”); J. Hogervorst, et al., Interaction Between
Dietary Acrylamide Intake and Genetic Variants for
Estrogen Receptor-Positive Breast Cancer Risk, EUROPEAN J. OF NUTRITION, Vol. 58:1033-1045 (2019) (“This
study did not provide evidence for a positive association between acrylamide intake and ER+ [estrogen
receptor-positive] breast cancer risk. If anything, acrylamide was associated with a decreased ER+ breast
cancer risk.”).
29. In fact, studies have shown that certain foods
that contain acrylamide likely reduce the risk of
cancer in humans. For example, in June 2018, the
International Agency for Research on Cancer (“IARC”)
concluded that there is an “inverse association” between
drinking coffee (which contains acrylamide) and certain
types of cancer. IARC, Monographs on the Evaluation
of Carcinogenic Risks to Humans, Drinking Coffee,
Mate, and Very Hot Beverages, Vol. 116 at 434 (2018).
Likewise, a recent study showed that whole-grain foods
may reduce the risk of liver cancer. AMERICAN CANCER
SOCIETY, Study Ties Whole Grains to Lower Risk of
Liver Cancer (Feb. 27, 2019), https://www.cancer.org/
latest-news/study-ties-whole-grains-to-lower-risk-oflivercancer.html.
30. The sole basis for California’s Proposition 65
warning requirement for acrylamide are laboratory
studies in which pure acrylamide was given to rats or
App.46a
mice. As NCI has explained, however, “toxicology
studies have shown that humans and rodents not only
absorb acrylamide at different rates, they metabolize
it differently as well.” NCI, Acrylamide and Cancer
Risk (Updated Dec. 5, 2017), https://www.cancer.gov/
about-cancer/causes-prevention/risk/diet/acrylamidefactsheet. Both the Environmental Protection Agency
(“EPA”) and IARC did not classify acrylamide as a
probable carcinogen based on studies in humans. In
its most recent assessment of acrylamide, for example,
IARC concluded in 1994 that there was “inadequate
evidence in humans for the carcinogenicity of acrylamide.” IARC, Monographs on the Identification of
Carcinogenic Risks to Humans, Some Industrial Chemicals, Vol. 60 at 425 (Feb. 1994), https://monographs.iarc.
fr/wp-content/uploads/2018/06/mono60.pdf. Similarly,
in its most recent toxicological review of acrylamide in
2010, EPA explained that human studies assessing
the carcinogenicity of acrylamide (including studies of
both dietary and industrial exposures) “are judged as
providing limited or no evidence of carcinogenicity in
humans.” EPA, Toxicological Review of Acrylamide,
167 (March 2010), https://cfpub.epa.gov/ncea/iris/iris_
documents/documents/toxreviews/0286tr.pdf.
31. In sum, Defendants and the State have no
evidence that acrylamide in Cookie Cakes is harmful
to anyone. As such, their threat to compel Plaintiff to
say otherwise is false and unconstitutional. Yet that
is exactly what Defendants and the State hope to do.
D. The State Regulates, Guides, Supports and
Benefits from Defendants’ Actions
32. The State is responsible for, and benefits from,
Defendants’ conduct.
App.47a
33. Under Proposition 65, the State authorizes
numerous persons to prosecute the statute on the
State’s behalf: the Attorney General, a district attorney, a variety of local government officials or a private
enforcer, such as Defendants. California Health &
Safety Code § 25249.7(c) and (d).
34. The State allows all of these enforcement
representatives to seek penalties of up to $2,500 per
day for each violation. Id. § 25249.7(b).
35. Anyone who brings a case is eligible to recover
25 percent of the penalty, id. § 25249.12(d), as well as
reasonable attorneys’ fees and costs, Cal. Code Civ.
Proc. § 1021.5. This creates strong incentives for litigation and a perverse incentive for abusive conduct.
See, e.g., Anthony T. Caso, Bounty Hunters and the
Public Interest—A Study of California’s Proposition
65, 13 ENGAGE 30, 31 (Mar. 2012) (describing case in
which “law firm created an ‘astroturf’ environmental
group to be a plaintiff in Proposition 65 litigation,”
which group “consisted of partners from the law firm”
and which “sent out hundreds of demand letters
charging businesses with failure to provide warnings”
and “extort[ing] payments of attorney fees or contributions to the front group”).
36. In addition to penalties, the State allows
enforcement representatives to seek injunctive relief
to require mandatory consumer warnings by food
companies in “a court of competent jurisdiction.” Id.
§ 25249.7(a).
37. Enforcement representatives rely on the
State’s Office of Environmental Health Hazard Assess-
App.48a
ment (“OEHHA”) to identify chemicals and concentration levels that are supposedly “known” to cause
cancer. Cal. Health & Safety Code §§ 25249.8(a)-(b).
38. Acrylamide currently is listed as a cancercausing substance by OEHHA and the State encourages enforcement representatives like Defendants to
sue food companies for injunctive and monetary relief.
39. If a product such as Cookie Cakes is found to
contain acrylamide at the proscribed level, the State’s
mandatory warning imposed by its representatives
require food companies to notify consumers that the
affected product contains acrylamide which is “known
to the State of California to cause cancer”:
WARNING: Consuming this product can
expose you to [Acrylamide], which is known
to the State of California to cause cancer. For
more information, go to www.P65Warnings.
ca.gov/food.
27 Cal. Code Regs § 25607.2(a)(2).
40. The required warnings on product labels
mandated by the State and enforced by prosecutors
must be large and obvious, i.e., “must be set off from
other surrounding information” and “enclosed in a
box.” Id. § 25607.1(b).
41. The State revises and regulates these requirements from time to time, and consults with its private
enforcement representatives in doing so.
42. On information and belief, the State’s employees have communicated with Defendants repeatedly
over the last several years and encouraged and assisted
them in securing monetary penalties from food companies accused of having acrylamide in their products.
App.49a
E.
The Regulation of Acrylamide is Unconstitutionally Vague
43. Proposition 65 purports to give food companies
objective information from which to determine whether
they must apply cancer warning labels to their products.
But that information is completely vague and does no
such thing.
44. First, the State exempts a food company from
regulation if it “can show that the exposure [to acrylamide] poses no significant risk assuming lifetime
exposure at the level in question for substances known
to the state to cause cancer.” Cal. Health & Safety
Code § 25249.10(c). This threshold is commonly referred
to as the “No Significant Risk Level” (“NSRL”). For
some listed substances, OEMMA has published a
quantitative NSRL, often referred to as a “safe harbor”.
27 Cal. Code Regs. § 25705.
45. Proposition 65 lawsuits are pervasive even
for chemicals, like acrylamide, that have a “safe harbor”
NSRL because the safe harbor is an affirmative defense
that is expensive to establish. It does not effectively
deter a plaintiff with significant financial incentives
from initiating suit in the hopes of collecting a settlement.
46. To determine whether exposure from acrylamide in a food product exceeds the NSRL, the exposure
is calculated based on the “average rate of intake or
exposure for average users of the consumer product.”
27 Code Regs. § 25721(d)(4). Exposure can be determined by looking at the average consumer’s consumption of Cookie Cakes over a period of time and then
measuring the exposure to acrylamide based on that
consumption over such period.
App.50a
47. In practical terms, the exception is meaningless. Even if a food business engages a full range of
experts and consumption scientists for every food
product it formulates and sells in the State, the State
and enforcers disagree on how average consumption
of acrylamide is calculated and applied.
48. Food companies have expended millions of
dollars in cases simply to show that the State and an
enforcer is wrong about the application of such information in a given case.
49. As a result, businesses like Plaintiff have no
means of protecting themselves when selling products
in California—because the determination of the applicable NSRL and related safe harbor is very burdensome and because compliance does not prevent a
company from being sued—such as in this case.
50. California jurists have recognized how onerous
Prop 65 suits can be for anyone doing business in
California. “[L]awsuits under Proposition 65 can be filed
and prosecuted by any person against any business
based on bare allegations of a violation unsupported
by any evidence of an actual violation—or even a good
faith belief that a defendant is using an unsafe amount
of a chemical known by the state to cause cancer.”
SmileCare, 91 Cal. App. 4th at 477 (Vogel, J., dissenting)
(emphasis in original). This burden-shifting regime
results in “judicial extortion” where many private parties
bring Proposition 65 claims (without an appropriate
assessment that an exposure exceeds the NSRL) and
force the defendant to settle to avoid legal fees and
the costs of performing an expensive expert scientific
assessment. Id. at 477-79.
App.51a
51. The State makes things worse because businesses have the burden to demonstrate that the exposure
at issue does not exceed the NSRL. Nor does demonstrated compliance immunize food businesses from
lawsuits in the first instance or from future enforcement
efforts. See DiPirro v. Bondo Corp., 153 Cal. App. 4th
150, 185 (2007).
52. The one way to obtain certainty is to enter
extortive monetary settlements with State representatives like Defendants, even though the business has
attempted to comply in good faith and has made a
product which poses no health risk.
53. Second, the State exempts from regulation
products “where chemicals in food are produced by
cooking necessary to render the food palatable or to
avoid microbiological contamination. . . . ” Cal. Code
Regs. § 25703(b)(1).
54. One might expect that such cooking exception
would protect companies like Plaintiff, but again that
is not the case.
55. To qualify under this “cooking” exception, a
business must also show that “sound considerations of
public health support an alternative level. . . . ” Id.
56. Such language is vague on its face and subject to a multitude of differing and unconstitutionally
vague interpretations and enforcement actions.
F.
The State Has Acknowledged that Acrylamide
is Not Harmful
57. Despite encouraging acrylamide prosecution
in hundreds of cases, the State readily acknowledges
App.52a
it has no evidence that the substance actually is
harmful or causes cancer.
58. OEHHA added acrylamide to the Proposition
65 list in 1990. The initial Proposition 65 listing was
premised on potential exposures to acrylamide in
industrial settings. At that time, it was not known
that acrylamide was present in cooked foods. Acrylamide
was not detected in foods until 2002.
59. OEHHA conceded in 2007 that acrylamide is
not actually known to cause cancer in humans. Specifically, Martha Sandy, now the Branch Chief of OEHHA’s
Reproductive and Cancer Hazard Assessment Branch,
was designated as OEHHA’s “Person Most Knowledgeable” in an action involving acrylamide. See
Cal. Code Civ. P. § 2025.230. Ms. Sandy testified that
(a) she was not aware of any governmental health
organization listing acrylamide as a known human
carcinogen, (b) she was not aware of any pharmacodynamic data regarding rats and humans and acrylamide, and (c) OEHHA did not actually “know” that
acrylamide was a human carcinogen.
60. OEHHA also has recognized that acrylamide
in certain food products—namely, coffee—does not
increase human cancer risk. In particular, in June
2019, OEHHA adopted a new regulation that states:
“Exposures to chemicals in coffee, listed on or before
March 15, 2019 as known to the state to cause cancer,
that are created by and inherent in the processes of
roasting coffee beans or brewing coffee do not pose a
significant risk of cancer.” 27 Cal. Code Regs. § 25704
(effective Oct. 1, 2019). In adopting this regulation,
OEHHA explained that “[t]he weight of the evidence
from the very large number of studies in the scientific
literature does not support an association between the
App.53a
complex mixture of chemicals that is coffee [including
acrylamide] and a significant risk of cancer.” OEHHA,
Final Statement of Reasons, Adoption of New Section
25704 Exposures to Listed Chemicals in Coffee Posing
No Significant Risk (June 7, 2019), https://oehha.ca.
gov/media/downloads/crnr/fsorcoffee060719.pdf.
61. Under Proposition 65, private plaintiffs are
required to provide 60-days’ notice to the California
Attorney General, the district attorney, city attorney,
or prosecutor in whose jurisdiction the violation is
alleged to have occurred, and to the alleged violator
before filing suit. Health & Safety Code § 25249.7
(d)(1). The California Attorney General maintains a
database of these 60-day notices, available at https://
oag.ca.gov/prop65/60-day-notice-search.
62. To date, there have been nearly 600 60-day
notices for alleged violations of the Proposition 65
warning requirement with respect to alleged exposures
to acrylamide. More than 500 of these 60-day notices
relate to acrylamide in food products.
63. These 60-day notices include alleged violations related to potato and potato-based products
(more than 90 notices); nut butters, including peanut
and almond butter (more than 40 notices); almonds
(more than 30 notices); cereals (more than 20 notices);
and olives (more than 10 notices).
64. The rate of notices of violation for acrylamide
have steadily increased in recent years, from just 32
notices in 2016 to 205 in 2019. Defendants’ enforcement
efforts are just a small part of the tidal wave of acrylamide litigation targeting innocent food companies.
App.54a
G. Plaintiff Faces State Action and Lawsuits by
Defendants and Others
65. On April 22, 2019, Defendants notified the
State and Plaintiff that they intend to require Plaintiff
to place a warning label on all Cookie Cakes to tell
consumers that the products cause cancer.
66. The State did not object to Defendants’ Notice
of Violation or seek to curtail or limit it.
67. Defendants’ Notice of Violation seeks relief
on behalf of the “Public” of California and pursuant to
the State’s regulations and enforcement guidelines
discussed above.
68. On information and belief, the State has
communicated with Defendants about this or similar
acrylamide cases in the past and has encouraged such
lawsuits.
69. The State also has received monetary compensation from Defendants in connection with frivolous
acrylamide lawsuits against other food companies,
and would receive compensation should Defendants
obtain monetary relief from Plaintiff.
70. Plaintiff notified Defendants that the products at issue could not possibly violate Proposition 65.
71. Defendants, however, refused to withdraw
their notice unless Plaintiff paid a substantial sum or
put a large cancer warning on the products.
App.55a
CAUSES OF ACTION
First Cause of Action against All Defendants
(Violation of the First Amendment to the
United States Constitution)
72. Plaintiff incorporates the foregoing paragraphs
as if fully restated herein.
73. The Free Speech Clause of the First Amendment of the United States Constitution provides that
“Congress shall make no law . . . abridging the freedom
of speech.” U.S. Const. Amend. I. The Fourteenth
Amendment of the United States Constitution made
this proscription applicable to the States and their
political subdivisions. Id. Amend. XIV § 1.
74. In addition to providing protections against
restrictions on speech, the First Amendment provides
protection against the government compelling individuals or entities to engage in speech.
75. Under the First Amendment, laws compelling
speech receive strict scrutiny. Wooley v. Maynard, 430
U.S. 705, 715-16 (1977). Laws regulating commercial
speech generally receive at least intermediate scrutiny,
i.e., they are prohibited if they do not directly and
materially advance the government’s interest, or are
more extensive than necessary. Cent. Hudson Gas &
Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 566
(1980). And even laws that require businesses to provide information in connection with commercial transactions are permissible only if the compelled disclosure
is of information that is purely factual and uncontroversial, reasonably related to a substantial government purpose, and not unjustified or unduly burdensome. Nat’l Inst. of Family Life Advocates v. Becerra,
App.56a
138 S. Ct. 2361, 2372, 2377; Zauderer v. Office of
Disciplinary Counsel, 471 U.S. 626, 651 (1985).
76. A Proposition 65 warning, irrespective of the
specific language used, conveys that the chemical at
issue (here, acrylamide) causes cancer in humans.
77. Contrary to the warning mandated by Proposition 65, there is no reliable scientific evidence that
dietary acrylamide in Cookie Cakes increases the risk
of cancer in humans. To the contrary, a large number
of epidemiological studies suggest that there is no
association between exposure to acrylamide from food
products and cancer in humans.
78. Nor does California “know” that dietary acrylamide causes cancer. In fact, the California agency
responsible for implementing Proposition 65, OEHHA,
has admitted that it does not know that acrylamide is
a human carcinogen.
79. The Proposition 65 warning requirement as
applied to acrylamide in Cookie Cakes thus seeks to
compel speech that is literally false, misleading, and
factually controversial.
80. Because Proposition 65’s warning requirement
as applied to acrylamide in Cookie Cakes is false,
misleading, and factually controversial, it cannot survive
any level of constitutional scrutiny. See Video Software
Dealers Ass’n v. Schwarzenegger, 556 F.3d 950, 967
(9th Cir. 2009) (“[T]he State has no legitimate reason
to force retailers to affix false information on their
products.”). Proposition 65’s warning as applied constitutes impermissible compelled speech under the
First Amendment and should be enjoined.
App.57a
Second Cause of Action against All Defendants
(Violation of the Due Process Clause
of the Fourteenth Amendment to the
United States Constitution)
81. Plaintiff incorporates the foregoing paragraphs as if fully restated herein.
82. One of the most basic guarantees of Due
Process is that laws “be sufficiently clear so as not to
cause persons of common intelligence . . . necessarily
[to] guess at its meaning and [to] differ as to its application. . . . ” United States v. Wunsch, 84 F.3d 1110,
1119 (9th Cir. 1996) (quoting Connallly v. Gen. Constr.
Co., 269 U.S. 385, 391 (1926)).
83. For this reason, courts have long recognized
that laws which are vague are voided by the Due Process
Clause, the so-called void-for-vagueness doctrine. This
doctrine is premised on the notion that:
[v]ague laws offend several important values.
First, because we assume that man is free to
steer between lawful and unlawful conduct, we
insist that laws give the person of ordinary
intelligence a reasonable opportunity to know
what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by
not providing fair warning. Second, if arbitrary and discriminatory enforcement is to
be prevented, laws must provide explicit
standards for those who apply them. . . . Third,
but related, where a vague statute “abuts upon
sensitive areas of basic First Amendment
freedoms,” it “operates to inhibit the exercise of
those freedoms.” Uncertain meanings inevitably lead citizens to “steer far wider of the
App.58a
unlawful zone” . . . than if the boundaries of
the forbidden areas were clearly marked.
Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).
84. Thus, where a regulation implicates speech,
as here, “heightened vagueness scrutiny applies”. Cal.
Teachers Ass’n v. State Bd. of Educ., 271 F.3d 1141,
1150 (9th Cir. 2001). In the vagueness context, the
requirement that laws be precise is aimed at preventing
“chill”: rather than risk sanctions, citizens will steer
far wider than necessary to avoid engaging in prohibited speech; the First Amendment, however, needs
breathing space to survive. Accordingly, “the standards
of permissible statutory vagueness are strict in the
area of free expression.” NAACP v. Button, 371 U.S.
415, 432-33 (1963).
85. Proposition 65’s warning requirement for
acrylamide, as applied to Cookie Cakes, is impermissibly vague for two separate and independent reasons.
First, because the NSRL is not predetermined, but
rather established on a case-by-case basis and only
after litigation, it is impossible for business to know
whether a warning is required. This is particularly so
in the context of acrylamide because the NSRL level
is very low and not in any way related to the risk dietary
acrylamide poses to humans (namely, none at all).
86. Second, Proposition 65’s cooking exception is
also impermissibly vague, because it requires a business to show that “sound considerations of public
health” merit an alternative risk level, and undefined
and undefinable term.
87. Accordingly, Proposition 65’s warning requirement for acrylamide violates the Due Process Clause
as applied to the Cookie Cakes.
App.59a
Third Cause of Action against All Defendants
Deprivation of Civil Rights
(42 U.S.C. § 1983)
88. Plaintiff incorporates the foregoing paragraphs
as if fully restated herein.
89. Defendants are enforcement representatives
of the State of California. Their actions are regulated,
governed by and ostensibly taken to economically
benefit the State.
90. Defendants seek to enforce Proposition 65
against Plaintiff based on the alleged presence of acrylamide in Cookie Cakes.
91. Defendants’ threatened enforcement and prosecution violates Plaintiff’s rights under the First
Amendment to the Constitution, by impermissibly
seeking to require Plaintiff to place an objectionable
warning on its products that would falsely tell consumers
the products cause cancer. Cookie Cakes are enjoyable
cookies and do not cause cancer.
92. Defendants’ threatened enforcement is made
under color of state law for many and reasons highlighted
throughout this Complaint: the State is entwined and
has a symbiotic relationship with Defendants; Defendants are fulfilling a traditional governmental function;
Defendants and the State are engaged in conduct that
would rise to a conspiracy.
93. All of those actions involve an intended violation of Plaintiff’s First Amendment Rights. Further,
a California statute and California court are necessarily
involved in this dispute.
94. Plaintiff is entitled to an injunction against
further prosecution or threats of prosecution under
App.60a
Proposition 65 related to the alleged acrylamide in its
Cookie Cakes, and to an award of double Plaintiff’s
damages, including attorneys’ fees and costs, as
permitted under Section 1983.
Fourth Cause of Action against All Defendants
Declaratory Judgment
(28 U.S.C. § 2201)
95. Plaintiff incorporates the foregoing paragraphs as if fully restated herein.
96. There is an actual and imminent controversy
between the parties regarding whether the application of Proposition 65’s acrylamide warning requirement to the Cookie Cakes violates the First and/or
Fourteenth Amendments to the United States Constitution.
97. Plaintiff accordingly requests a declaration
that the enforcement of Proposition 65 against the
Cookie Cakes is unconstitutional.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays for judgment and
relief against Defendants as follows:
A.
For an injunction against further unconstitutional threats and lawsuits against Plaintiff
regarding the acrylamide in its Cookie Cakes
products.
B.
A declaration that the Proposition 65 warning
requirement for cancer as applied to Cookie
Cakes violates the First Amendment of the
United States Constitution.
App.61a
C.
For damages in an amount to be determined
according to proof.
D.
Plaintiff’s attorney’s fees and costs.
E.
All such other and further relief as the Court
may deem just, proper, and equitable.
Respectfully Submitted,
BRAUNHAGEY & BORDEN LLP
By: /s/ J. Noah Hagey
J. Noah Hagey
Attorneys for Plaintiff
B&G Foods North America, Inc.
Dated: March 6, 2020
App.62a
DEFENDANTS EMBRY AND GLICK’S
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF MOTION TO
DISMISS PLAINTIFF’S COMPLAINT
(MAY 1, 2020)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
________________________
B&G FOODS NORTH AMERICA, INC.,
Plaintiff,
v.
KIM EMBRY and NOAM GLICK, acting as
enforcement representatives under California
Proposition 65 on behalf of the State of California,
Defendants.
________________________
Case No. 2:20-CV-00526-KJM-DB
CRAIG M. NICHOLAS (Bar No. 178444)
cnicholas@nicholaslaw.org
SHAUN MARKLEY (Bar No. 291785)
smarkley@nicholaslaw.org
JAKE W. SCHULTE (Bar. No. 293777)
jschulte@nicholaslaw.org
NICHOLAS & TOMASEVIC, LLP
225 Broadway, 19th Floor
San Diego, California 92101
(619) 325-0492 (Tel)
(619) 325-0496 (Fax)
App.63a
Attorneys for Defendants
KIM EMBRY and NOAM GLICK
___________________
DEFENDANTS KIM EMBRY AND NOAM
GLICK’S MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF MOTION TO
DISMISS PLAINTIFF’S COMPLAINT
___________________
I.
Introduction
Plaintiff seeks to obtain a perceived more favorable forum to litigate its federal constitutional defenses
to an earlier-filed state court action under California’s
Proposition 65. There are a host of reasons that the
Court should dismiss the case, including: (1) none of
the causes of action apply to the private defendants—
for instance, a private citizen cannot violate the First
Amendment—and the limited circumstances that would
make defendants state actors and therefore susceptible
to being sued are nowhere close to being present; (2)
the Anti-Injunction Act prohibits this later-filed action,
as the Court has already ruled in the very similar case
of California Chamber of Commerce v. Becerra, 2020
WL 1030980 (E.D. Cal. Mar. 3, 2020); and (3) Plaintiff’s claims are improper under the Noerr-Pennington.
For these reasons, the Court should dismiss the case
and allow Plaintiff to pursue its defenses in state
court. If this case were allowed to proceed, it would
open the flood gates and result in every Proposition 65
case potentially having a parallel proceeding in federal
court.
App.64a
II. Factual Background
A. Proposition 65 Citizen Suits
The Safe Drinking Water and Toxic Enforcement
Act of 1986, also known as Proposition 65, is a voterenacted California state statute that protects the public’s
right to know about the potential threats of cancer,
birth defects, or other reproductive harm resulting
from exposure to hazardous chemicals. Proposition 65
generally requires businesses to provide a “clear and
reasonable warning” on any product that causes an
exposure to “a chemical known to the state to cause
cancer or reproductive toxicity.” Cal. Health & Safety
Code § 25249.6. The statute permits any “person” to
bring an action “in the public interest” to enforce this
requirement. Id. § 25249.7(d).
A private party seeking to bring an enforcement
action must provide 60 days’ notice of the alleged
Proposition 65 violation to the alleged violator and to
the Attorney General and certain local government
prosecutors. Id. § 25249.7(d)(1). The notice must include
a certificate that “there is a reasonable and meritorious case for the private action” and “[f]actual information sufficient to establish the basis of” that certificate.
Id. If, after reviewing the notice and certificate of
merit, the Attorney General “believes there is no merit
to the action, the Attorney General shall serve a letter
to the noticing party and alleged violator stating” as
much. Id. § 25249.7(e)(1)(A).
Assuming more than 60 days passes without public
enforcers pursuing the matter, the private enforcer
may commence an action. Id. § 25249.7(c) and (d).
Private enforcers must notify the Attorney General
when the action is filed, id. § 25249.7(e)(2), and again
App.65a
when the action “is subject either to settlement or to a
judgment,” id. § 25249.7(f)(1). The settlement of a
private enforcement action must occur with court
approval after a noticed motion. Id. § 25249.7(f)(4).
The private enforcer must serve the motion for approval of the settlement on the Attorney General, “who
may appear and participate in a [settlement] proceeding without intervening in the case.” Id. § 25249.7(f)(5).
B. Kim Embry’s Citizen Suit Against B&G
Foods
Kim Embry is a citizen enforcer of Proposition 65
dedicated to protecting the health of California citizens
through the elimination or reduction of toxic exposure
from consumer products. Embry has filed dozens of
successful private enforcement actions since January
2017, when she began investigating the presence of
acrylamide and other Proposition 65 chemicals in
consumer products. See Request for Judicial Notice in
Supp. of Mot. to Dismiss (“RJN”), Ex. A. Other private
enforcers have fared equally well, securing product
reformulations to reduce exposures to toxic chemicals
or warnings regarding those exposures in thousands
of consumer products, securing millions of dollars in
civil penalties, and, particularly with respect to acrylamide in food cases, securing trial verdicts overcoming
First Amendment and other defenses. See Statement
of Decision on Trial, RJN, Ex. J.
As part of her continued investigation, Embry, on
April 22, 2019, served B&G Foods, the Attorney
General, and all other required public enforcement
agencies with a 60-day notice of violation of Proposition 65 (“Notice”). RJN, Ex. B. The Notice alleged that
B&G Foods violated Proposition 65 when it failed to
App.66a
warn consumers in California that its Snack Well’s
Devil’s Food Fat Free Cookie Cakes (“Cookie Cakes”)
exposed consumers to acrylamide. Id.
Embry did not file suit when the Notice period
expired. As is often the case, Embry, through her counsel, sought to exhaust non-litigation remedies (e.g.,
potential out-of-court settlement) prior to expending
substantial time and resources. Instead, Embry and
B&G Foods executed a tolling agreement wherein
Embry’s claims were tolled for “[Embry] and [B&G
Foods], and their respective counsel, [ ] to investigate
and review [Embry’s] allegations before [Embry] filed
a lawsuit against [B&G Foods]. RJN, Ex. C. On March
6, 2020, at 10:53 a.m., Embry filed a Proposition 65
complaint against B&G Foods in the Superior Court
of California, County of Alameda, Case No. RG20057491
(the “Alameda Action”). RJN, Ex. D. The Alameda
Action alleges that B&G Foods failed to sufficiently
warn consumers in California about the exposure to
acrylamide in Cookie Cakes. Id.
C. B&G Foods’ Reactionary Declaratory
Action
Half a day after Embry filed the Alameda Action,
and outside of normal business hours, at 10:07 p.m.,
B&G Foods filed a reactionary suit in this Court. Complaint, ECF No. 1; RJN at § E, Declaration of Arlene
Calles (Calles Decl.) at ¶¶ 2-3. The Complaint names
Embry and her counsel, Noam Glick, as defendants.
B&G Foods claims that Proposition 65’s warning
requirement as applied to acrylamide in Cookie Cakes
constitutes an unconstitutional speech requirement.
Id. at ¶¶ 79-80. B&G Foods seeks a “declaration that
the enforcement of Proposition 65 against the Cookie
App.67a
Cakes is unconstitutional,” id. at ¶ 97, and “an injunction
against further prosecution or threats of prosecution
under Proposition 65 related to the alleged acrylamide
in its Cookie Cakes,” id. at ¶ 94.
D. Acrylamide
Acrylamide is an odorless chemical found in cigarette smoke, and in certain starchy food products
cooked at high temperatures. EPA, Toxicological Review
of Acrylamide 266 (Mar. 2010) (“EPA Review”)
(RJN, Ex. E at 5). Among food products, “[f]rench fries,
potato chips, crackers, pretzel-like snacks, cereals,
and browned breads tend to have the highest levels
of” acrylamide. Id.
Decades of research have produced strong evidence
that acrylamide causes various cancers in laboratory
animals, and that the same mechanisms that result in
adverse effects from acrylamide exposures in animals
also exist in humans. EPA Review at 166, 173 (RJN,
Ex. E at 6, 8, 13, 14, 23).
Based on these and other studies, many scientific
and government organizations have identified acrylamide as a probable human carcinogen: the EPA
concluded in 2010 that acrylamide is “likely to be
carcinogenic to humans,” EPA Review at 167 (RJN,
Ex. E at 7); the International Agency for Research on
Cancer (“IARC”) concluded that acrylamide “is probably
carcinogenic to humans,” IARC, Monographs on the
Evaluation of Carcinogenic Risks to Humans: Vol. 60,
Some Industrial Chemicals 425 (1994) (RJN, Ex. F at
2); and the National Toxicology Program—an interagency of the FDA, the National Institutes of Health,
and the Center for Disease Control and Prevention—
concluded that acrylamide “is reasonably anticipated
App.68a
to be a human carcinogen,” National Toxicology Program, Acrylamide, 14th Report on Carcinogens (2016)
(RJN, Ex. G at 2).
California’s Office of Environmental Health Hazzard Assessment (“OEHHA”)—a specialized department
within California’s Environmental Protection Agency
with responsibility for evaluating health risks from
chemicals—identified acrylamide as a carcinogen in
1990, based on carcinogenicity findings by the EPA and
IARC. See OEHHA, Meeting of the Carcinogen Identification Committee, Acrylamide Briefing Binder, Tab 2
(Oct. 17, 2003) (RJN, Ex. H at 4). In 2011, OEHHA
identified acrylamide as a chemical known to cause
developmental and reproductive toxicity. (RJN, Ex. I)
III. Legal Standard
A Rule 12(b)(6) motion tests the sufficiency of the
complaint. Navarro v. Block, 250 F.3d 729, 732 (9th
Cir. 2001). Dismissal is warranted where the complaint lacks a cognizable legal theory, or alternatively,
where it fails to plead essential facts under its legal
theory. Robertson v. Deon Witter Reynolds, Inc., 749
F.2d 530, 534 (9th Cir. 1984), The facts plead must
“raise a right to relief above the speculative level.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007).
“To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Legal conclusions need not be taken as true merely because
they are cast in the form of factual allegations. Roberts
v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987). A
court may take judicial notice without converting a
App.69a
motion to dismiss into a motion for summary judgment. Lee v. City of L.A., 250 F.3d 668, 688-89 (9th
Cir. 2001).
IV. The Court Should Dismiss the Complaint
Because Embry and Glick Are Not “State
Actors”
Well-settled law presumes private citizens cannot
be “state actors” “acting under color of law” except in
narrow circumstances, none of which are applicable
here.
A. Embry and Glick Are Presumptively Not
“State Actors.”
The First Amendment provides that “Congress
shall make no law . . . abridging the freedom of speech.”
The Fourteenth Amendment makes the Free Speech
Clause applicable against the States. Manhattan Cmty.
Access Corp. v. Halleck, 139 S. Ct. 1921, 1928 (2019).
“The text and original meaning of those Amendments,”
as well as the Supreme Court’s “longstanding precedents” establish that the Free Speech Clause prohibits
only “governmental” and not “private abridgement of
speech.” Id. (Emphasis in original). Put simply, the Free
Speech Clause applies only against “state actor[s].” Id.
A due process claim under the Fourteenth Amendment
also has a state action requirement. See, e.g., Am.
Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 48, 49-50
(2000).
42 U.S.C. § 1983 permits a cause of action against
a person “who, under color of any statute, ordinance,
regulation custom or usage . . . causes to be subjected,
any citizen . . . to the deprivation of any rights, privileges
or immunities secured by the Constitution and laws.
App.70a
. . . ” Thus, in order to invoke Section 1983, the plaintiff must “demonstrate a deprivation of a right secured
by the Constitution or laws of the United States, and
that the defendant acted under color of state law.”
Kirtley v. Rainey, 326 F. 3d 1088, 1092 (9th Cir. 2003)
(emphasis added). Accordingly, “like the state-action
requirement of the Fourteenth Amendment, the undercolor-of-state-law element of § 1983 excludes from its
reach ‘merely private conduct, no matter how discriminatory or wrongful.’” Am. Mfrs. Mut. Ins. Co., 526 U.S.
at 49-50 (quoting Blum v. Yaretsky, 457 U.S. 991, 1002
(1982)). “Whether a person is subject to suit under
§ 1983 is the same question posed in cases arising under
the Fourteenth Amendment: is the alleged infringement
of federal rights fairly attributable to the government?”
Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d
826, 835 (9th Cir. 1999).
“When addressing whether a private party acted
under color of law,” courts “start with the presumption
that private conduct does not constitute governmental
action.” Sutton, supra, 192 F. 3d at 835. Further, there
are only a “few limited circumstances” when a private
party may “qualify as a state actor.” Manhattan Cmty.
Access Corp., supra, 139 S. Ct. at 1928. Specifically, a
private citizen acts “under color of law” only if: (i) the
private citizen “performs a traditional, exclusive public
function;” (ii) “the government compels” the private
citizen “to take a particular action;” or (iii) “the government acts jointly with the private” citizen. Id.
B&G Foods alleges that defendants are “citizen[s]
of California,” not public officials (Compl. ¶¶ 7-8.) Thus,
the Complaint admits defendants are private citizens
presumed not to be “state actors.”
App.71a
B. None of The Limited Circumstances Where
a Private Citizen Can Act Under “Color
of Law” Apply to Embry and Glick.
i. Embry and Glick Do Not Perform
Traditional and Exclusive Public
Functions.
The Supreme Court “has stressed that very few
functions” are “traditionally” and “exclusively” reserved
to the States. Manhattan Cmty. Access Corp., supra,
139 S. Ct. at 1928. It is “not enough that the function
serves the public good or the public interest in some
way.” Id. Rather, the plaintiff must show that the
alleged state action is both traditionally and exclusively
performed by the government. Id. (citing “running
elections” and “operating a company town” as examples
of traditional and exclusive government functions).
This is a demanding standard, and the plaintiff has
the burden to meet it. Real Estate Bar Ass’n for Mass.,
Inc. v. Nat’l Real Estate Info. Servs, 608 F.3d 110, 122
(1st Cir. 2010). The fact that “a private entity performs
a function which serves the public does not make its acts
state action.” Rendell-Baker v. Kohn, supra, 457 U.S.
at 842 (1982).
In Real Estate Bar Ass’n, a bar association sued
an escrow company under a Massachusetts statute that
permitted it, along with private attorneys or prosecutors
to bring an action to enforce the State’s prohibition of
the unauthorized practice of law. 608 F.3d at 122. The
closing service then brought a counterclaim against
the bar association under Section 1983, claiming that
the enforcement statute violated the Dormant Commerce Clause. Id. The First Circuit held that the closing
App.72a
services failed to state a claim because the Bar Association was not a “state actor.” Id. at 122. The court
reasoned that while the State “chose to give bar associations a defined role in bringing court actions to seek
a judicial determination” regarding the unauthorized
practice of law, “the bringing of a lawsuit to obtain a
declaration as to legality—is far from an exclusive
function of government.” Id.
B&G Foods appears to invoke the “traditional
and exclusive functions” test by alleging that Embry
and Glick perform “a quintessential state function by
acting as California’s enforcement arm relating to the
presence of targeted chemicals in the environment.”
(Complaint, ¶ 9(f).) However, as the court held in Real
Estate Bar Ass’n, that a person has standing to bring
an enforcement action does not convert the person
into a “state actor.” This is because filing a lawsuit to
enforce public policy is “far from” an “exclusive” function
of government. Real Estate Bar Ass’n, 608 F.3d at 122.
“An action undertaken by a private party does not
become state action merely because the action is authorized by state statute.” Id. (citing Flagg Bros. v.
Brooks, 436 U.S. 149, 164-66 (1978)); Roberts v. AT&T
Mobility, 877 F.3d 833, 845 (9th Cir. 2017) (“[P]ermission of a private choice cannot support a finding of
state action . . . and private parties [do not] face constitutional litigation whenever they seek to rely on
some [statute] governing their interactions with the
community surrounding them.” (quoting Lugar, 457
U.S. at 937, and Am. Mfrs. Mut. v. Sullivan, 526 U.S.
40, 53 (1999)).
The fact that filing a lawsuit to enforce Proposition 65 is not an “exclusive” or “traditional” government
function is plain from the language of Proposition 65
App.73a
itself. Under Proposition 65, an action may be brought
by “the Attorney General in the name of the People of
the State of California, by a district attorney, by a city
attorney . . . [or] by a city prosecutor . . . .” Cal. Health
and Saf. Code § 25249.7(c). The statute also permits
“private action[s]” brought by a “person” acting “in the
public interest” but only after the person: 1) provides
notices of the Proposition 65 violation to the defendant,
the Attorney General and the relevant district attorney or city prosecutor; and 2) with 60 days’ notice,
“neither the Attorney General, a district attorney, a
city attorney, nor a prosecutor has commenced an
action and is diligently prosecuting an action against
the violation.” Cal. Health and Saf. Code § 25249.7(d).
In other words, Proposition 65 differentiates between
state actions, which are brought by the Attorney General or a prosecutor, and “private actions” which are
brought by private citizens after notifying the State,
which then declines to take its own action. Moreover,
both public and private actions are permitted. Accordingly, by definition, the right to bring a lawsuit under
Proposition 65 is not exclusively or traditionally
reserved to the State.
B&G Foods mistakenly relies on Lee v. Katz, 276
F.3d 550, 554-557 (9th Cir. 2002) and Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961) for its
claim that filing a Proposition 65 lawsuit constitutes
the exercise of a “traditional” or “exclusive” government
function. (Compl. ¶ 9(e)-(f).) In Lee, the defendant leased
an outdoor space from the City and was sued by the
plaintiffs it excluded for violating their free speech
rights. Because the defendant was regulating free
speech in a public forum, which is a traditional and
exclusive public function, the court held the defendant
App.74a
was acting under color of law. Id. at 555-557. In Burton,
the defendant restaurant leased space from the state.
The Court held the defendant could be liable for violating the Equal Protection Clause of the Fourteenth
Amendment when it refused to serve African American customers. The court held that the State made
itself a party to the discrimination by “electing to
place its power, property and prestige behind the
admitted discrimination.” Burton, supra, 365 U.S. 715
at 725.
Unlike the defendants in Lee and Burton, to whom
the State delegated complete authority over public
property, Proposition 65 plaintiffs (and their attorneys),
far from being granted regulatory authority, are merely
permitted to seek redress in the courts through litigation, which has never been an exclusive function of
the State. Thus, as a matter of law, Embry and Glick
cannot be “state actors” under the “traditional and
exclusive” functions test.
ii. Embry and Glick Did Not “Act Jointly”
With the State.
In order to show there was joint action between a
private actor and the State, the plaintiff must show
the private actors are “willful participants in joint
action with the government or its agents.” Brunette v.
Humane Soc’y of Ventura County, 294 F.3d 1205, 1211
(9th Cir. 2002). A private party is liable under this
theory only if its particular actions are “inextricably
intertwined” with those of the government. Id. (quoting
Mathis v. Pac. Gas & Elec. Co., 75 F.3d 498, 503 (9th
Cir. 1989); see also Collins v. Womancare, 878 F.2d
1145, 1154 (9th Cir. 1989). A “conspiracy” between the
App.75a
State and a private party to violate another’s rights
may also satisfy the test. Brunette, 294 F.3d at 1211.
In Nabors Well Servs. Co. v Bradshaw, 2006 Dist.
LEXIS 109849 * 2 (C.D. Cal. Feb 15, 2006), the plaintiff brought a Section 1983 action against a former
employee who sued the defendant for various wage
and hour violations under California’s Private Attorney
General Act, Labor Code section 2699 et seq. (“PAGA”).
The plaintiff alleged that the defendant acted “under
color of state law” because he was “helping to enforce
compliance with California’s labor law.” The court
granted the defendant’s motion to dismiss, holding
that the defendant’s “private use” of a state sanctioned
remedy did not constitute action by the State. Id. at *
6-7. The court reasoned that the state was not a
“willful participant” in the PAGA action because it
“merely acquiesced” and did not “exercise coercive power
to further the suit.” Id. *6. The court further held that
the “fact that the State is a passive recipient” of
recovery in PAGA actions did “not alter the outcome.”
Id.
Proposition 65 is remarkably similar to PAGA.
Like in a PAGA action, the plaintiff must first provide
notice to the State and may only bring suit after the
State declines to act. Compare Labor Code § 2699.3
(a)(1)(A), (a)(2)(A), with Health & Saf. Code § 25249.7(d).
Further, Proposition 65 emphasizes that the Attorney
General’s failure to serve a no-merit letter “shall not
be construed as an endorsement by the Attorney General of the merit of the action.” Cal. Health and Saf.
Code § 25249.7(e)(1)(B). The statute does not contemplate that the Attorney General can stop the action
from going forward. Even after receiving a no-merit
letter, the private enforcer can move ahead with her
App.76a
enforcement action, albeit at the risk of sanctions if the
defendant is ultimately successful. See id. § 25249.7(e)
(1)(A), (h)(2). Thus, that a Proposition 65 plaintiff must
first provide notice to the State cannot constitute joint
action with the State. See Am. Mfrs. Mut. Ins., 526 U.S.
at 55 (government agency not responsible for private
parties’ actions where its “participation is limited to
requiring insurers to file a form prescribed by the
Bureau, processing the request for technical compliance,
and then forwarding the matter” to a private entity).
As with PAGA, there is not “joint action” between the
State and citizens who bring private actions to enforce
Proposition 65.
Moreover, like in a PAGA action, if the plaintiff
succeeds in recovering penalties in a Proposition 65
action, 75% of the recovery is paid to the State and
25% is paid to the plaintiff. Cal. Health and Saf. Code
§ 25249.12(c)); Cal. Labor Code 2699(i). As the court
held in Nabors, the mere “passive” receipt of a recovery
by the State does not establish “joint action.” Indeed,
courts have found state action on the basis of a financial
benefit to the state only when private action “confers
significant financial benefits indispensable to the government’s financial success,” such that there is a
“symbiotic relationship” between the state and the
private actor. Brunette, 294 F.3d 1205, 1213 (9th Cir.
2002) (emphasis added; quotation omitted). That is,
the government must have “so far insinuated itself
into a position of interdependence (with a private
entity) that it must be recognized as a joint participant
in the challenged activity.” Id. (quoting Burton v. Wilmington Parking Auth., 365 U.S. 715, 725 (1961)).
B&G Foods has not, and cannot, allege that civil penalty
recoveries in private acrylamide warning enforcement
App.77a
actions—or even penalties in private enforcement
actions overall—are “indispensable” to the state or
that the Attorney General is in a “position of interdependence” with any of the private enforcers. See
Vincent v. Trend W. Tech. Corp., 828 F.2d 563, 569
(9th Cir. 1987) (“While [the private party] may have
been dependent economically on its contract with the
Air Force, [it] was most certainly not an indispensable
element in the Air Force’s financial success.”).
In the Complaint, B&G Foods tries to distinguish
PAGA and other private attorney general statutes by
alleging that the State can “regulate,” “monitor” and
“object to” Proposition 65 actions and “regulate” settlements. (Compl. ¶¶ 9(b-d).) However, even if the Complaint accurately described the statutory scheme—which
it does not—the Attorney General’s decision not to
“object” to a private enforcement action does not make
the State a “joint actor” with the plaintiff. To the contrary, “[a]ction taken by private entities with the mere
approval or acquiescence of the State is not state action.”
Am. Mfrs. Mut. Ins., supra, 526 U.S. at 52; Roberts v.
AT&T Mobility LLC, 877 F.3d 833, 845 (9th Cir. 2017)
(“[O]ur cases will not tolerate the imposition of
[constitutional] restraints on private action by the
simple device of characterizing the State’s inaction as
‘authorization’ or ‘encouragement.’” (quoting Am. Mfrs.
Mut. Ins., 526 U.S. at 54)). Although the Attorney General can preempt a would-be private enforcement action
by initiating an action himself before the 60-day period
has elapsed, there is nothing in the statute that indicates
inaction by the Attorney General could somehow constitute “encouragement” of any action by the plaintiff,
let alone a “joint action” with the plaintiff. See Cal.
Health & Safety Code § 25249.7(d)(2). Further, private
App.78a
actions and settlements filed over the Attorney General’s
objection necessarily are not actions taken in concert
with a state actor.
Similarly, B&G Foods’s allegation that the Attorney
General “regulates individual settlements” not only
inaccurately portrays the statutory scheme, but also
fails to demonstrate state action. A private enforcer
must notify the Attorney General upon filing a motion
to enter into a settlement agreement with an alleged
Proposition 65 violator, and the Attorney General may
then “appear and participate in [the settlement] proceeding without intervening in the case.” Cal. Health &
Safety Code § 25249.7(f)(5). But by objecting to a settlement the Attorney General does not block it from being
approved. See id. § 25249.7(f)(5). Rather, the statute
allows the Attorney General to make his objections to
a settlement known to the court, which then decides
whether to approve it. Even if the Attorney General
had authority to block proposed settlements—which
he does not—his use of (or failure to use) that authority
would not make him responsible for the resulting
settlement or any other part of the private enforcement
action. Rather, where the Attorney General objects to
a Proposition 65 settlement, the State becomes an
adversary to the plaintiff—i.e., the opposite of a “joint
actor.”
B&G Foods’s conclusory allegation that Glick and
Embry are “conspiring” with “state officials” is also
without merit. Indeed, B&G Foods fails to allege any
facts that could constitute a “conspiracy” and its reliance
on Denis v. Sparks, 449 U.S. 24 (1980) is misplaced.
(Compl. ¶ 9(g).) In Denis, the court held that a litigant
who bribed a judge to influence his decision participated
in an official act resulting from a corrupt conspiracy.
App.79a
Id. at 28. However, as the court reasoned, one does not
become a “co-conspirator or joint actor with the judge”
simply by “resorting to the courts and being on the
winning side of a lawsuit.” Id. Thus, if anything, Denis
demonstrates that Embry and Glick are no more “joint
actors” with the State than any other litigant and her
lawyer who exercise the constitutional right to petition
by filing a lawsuit.
iii. Private Enforcers Are Not Compelled to
Bring Actions
“The compulsion test considers whether the coercive influence or significant encouragement of the state
effectively converts a private action into a government
action.” Kirtley, supra, 326 F.3d at 1094 (quotation
omitted). Proposition 65 permits but does not require
private enforcement actions. Cal. Health & Safety Code
§ 25249.7(d) (“Actions pursuant to this section may
be brought by a person in the public interest. . . . ”
(emphasis added)).
Proposition 65’s civil penalties are not such “significant encouragement” that the choice to initiate a
private enforcement action “must in law be deemed to
be that of the State.” Blum v. Yaretsky, 457 U.S. 991,
1004 (1982). Courts “have never held that the mere
availability of a remedy for wrongful conduct, even
when the private use of that remedy serves important
public interests, so significantly encourages the private
activity as to make the State responsible for it.” Am.
Mfrs. Mut. Ins., 526 U.S. at 53; see also Real Estate
Bar Ass’n, 608 F.3d at 122 (“An action undertaken by
a private party does not become state action merely
because the action is authorized by state statute.”).
App.80a
Some courts have also applied a “nexus” test to
determine whether private action may be considered
state action, although the Ninth Circuit has indicated
that this test is “largely subsume[d]” within the other
state action tests and may not have independent force.
Naoko Ohno v. Yuko Yasuma, 723 F.3d 984, 995 n.13
(9th Cir. 2013). Assuming this additional test applies
here, for the reasons stated above, the Complaint does
not meet it. The nexus test asks whether “there is such
a close nexus between the State and the challenged
action that seemingly private behavior may be fairly
treated as that of the State itself.” Florer v. Congregation
Pidyon Shevuyim, N.A., 639 F.3d 916, 924 (quotation
omitted). There is no “close nexus” between private
enforcement actions and the State because the State
does not command private enforcers to bring enforcement actions or block private actions that it believes
are meritless. Kirtley, 326 F.3d at 1095 (finding that
there was no close nexus between a guardian ad litem
and the state, even though the guardian “is appointed
by a state actor, is paid by the state, and is subject to
regulation by state law”). Further, the statute treats
private enforcers differently from government prosecutors: unlike public enforcers, private enforcers are
required to provide 60 days’ notice before filing an
action, Cal. Health & Safety Code § 25249.7(d)(1);
they cannot sue if a public enforcer has already sued,
id. § 25249.7(d)(2); they are subject to sanctions if
they bring a frivolous case, id. § 25249.7(h)(2); and
they must get judicial approval to settle their cases,
id. § 25249.7(f)(4). Proposition 65 itself thus does not
treat private enforcers as an arm of the state.
App.81a
iv. Allowing Lawsuits Against Citizens
Filing Private Actions Would Chill
Citizens from Acting in The Public
Interest.
Like Proposition 65, numerous statutes permit
private actions to enforce public rights without converting the private citizen plaintiffs into state actors.
These include the citizen suit provisions of the federal
Clean Water Act, 33 U.S.C. § 1365, Endangered Species
Act, 16 U.S.C. § 1540(g), and Safe Drinking Water Act,
42 U.S.C. § 300j-8, which permit private parties to
seek civil penalties and injunctions against those who
violate environmental laws and regulations. California
law also permits citizen suits to recover civil penalties,
such as under PAGA. Proposition 65’s provision for
private enforcement actions is merely another example
of such a citizen suit statute.
To permit defendants to sue plaintiffs as “state
actors” would chill participation by citizens in vindicating the public policies embodied in Proposition
65 and every other similar state and federal statute
permitting private enforcement. There is no case,
statute, regulation or policy that warrants forcing
private citizens considering a private enforcement
action to weigh the personal risk and burden of
defending lawsuits challenging the Legislature’s actions.
See Roberts v. AT&T Mobility LLC, 877 F.3d 833, 845
(9th Cir. 2017) (“[P]rivate parties [do not] face constitutional litigation whenever they seek to rely on some
[statute] governing their interactions with the community surrounding them.”). Further, allowing Proposition
65 defendants to bring separate federal actions against
private enforcers as if they were the government would
create a flood of retaliatory litigation in federal court.
App.82a
The absurdly broad definition of a “state actor”
posited by B&G Foods is embodied in its allegation
that Embry and Glick are State actors because “California has interjected itself into this dispute by virtue
of the fact that Proposition 65 is a state statute and
Defendants have filed in state court.” (Compl. ¶ 9(h).)
In other words, B&G Foods claims that any time a
lawsuit is filed under State law the plaintiff is a “state
actor.” In support of this preposterous interpretation,
B&G Foods mistakenly relies on Grant v. Johnson, 15
F.3d 146 (9th Cir. 1994). In Grant, a woman sued the
judge who appointed her guardian, alleging that the
guardianship statute was unconstitutional. Id. at 147.
The Ninth Circuit reversed a judgment in the woman’s
favor because there is no Article III “case or controversy” against a judge who has no interest in the
outcome of the case. Id. at 148. In dicta, the court
stated that the plaintiff may be able to bring a declaratory judgment action against the petitioner or the
guardian herself because, while they were not “state
actors” subject to a Section 1983 claim, there might be
“state action” due to the order from the judge that
could provide a basis for a declaratory judgment action.
Id. at 149. At most, this dicta suggests that in very
limited circumstances, which are not applicable here,
a private citizen can be involved in a state action. It
does not—and cannot—mean that all litigants who
file lawsuits in state court under a state law subject
themselves to actions in federal court to defend the
constitutionality of the state law.
C. Noam Glick Cannot Be a State Actor.
“[I]t is well-established that lawyers in private
practice generally do not act under color of law when
they represent parties in court proceedings.” Tanasescu
App.83a
v. State Bar of Cal., 2012 Westlaw 1401294 *16 (C.D.
Cal., March 26, 2012) (citing Simmons v. Sacramento
County Superior Court, 318 F.3d 1156, 1161 (9th Cir.
2003) (dismissing Section 1983 action against attorney
in personal injury action against plaintiff). Further,
“[i]nvoking state legal procedures does not constitute
‘joint participation’ or ‘conspiracy’ with state officials
sufficient to satisfy section 1983’s state action requirement.” Schucker v. Rockwood, 846 F.2d 1202 (9th Cir.
1988) (allegations of “conspiracy” between attorneys
and judge insufficient to establish that attorney was
state actor under Section 1983).
In Tanasescu, the plaintiffs brought a 1983 action
against their own attorneys and alleged an immigration fraud scheme. 2012 Westlaw 1401294. The court
granted the attorneys’ motion to dismiss because they
are not state actors. Specifically, the attorneys’ actions
consisted solely of private actions, such as filing a dissolution petition, taking discovery and engaging in
other “typical actions of lawyers representing their
clients in a civil action.” Id. at *17.
B&G Foods alleges that Glick is a “lawyer” who
brings Proposition 65 actions. (Compl. ¶ 8.) B&G Foods
does not and cannot allege that Glick has done
anything more than engage in “typical actions of lawyers representing clients in a civil action,” like sending
statutorily required notice to the Attorney General and
filing the Proposition 65 action. Further, B&G Foods’s
vague allusions to the State’s “imprimatur, support”
and “guidance” are precisely the type of conclusory
and “implausible” allegations the courts in Tanasescu
and Schucker rejected as insufficient to overcome the
strong presumption against finding that private attorneys engage in state action.
App.84a
V.
The Court Should Dismiss the Complaint
Under the Anti-Injunction Act
The Anti-Injunction Act forbids a federal district
court from “grant[ing] an injunction to stay proceedings in a State court except [1] as expressly authorized
by Act of Congress, or [2] where necessary in aid of
jurisdiction, or [3] to protect or effectuate its judgments.”
28 U.S.C. § 2283. The Anti-Injunction Act “is an absolute
prohibition against enjoining state court proceedings,
unless the injunction falls within one of the three specifically defined exceptions.” Negrete v. Allianz Life Ins.
Co. of N. Am., 523 F.3d 1091, 1100-01 (9th Cir. 2008)
(quoting Atl. Coast Line R.R. Co. v. Bhd. of Locomotive
Eng’rs, 398 U.S. 281, 286-87 (1970)).
The limitations expressed in the Anti–Injunction
Act “rest[ ] on the fundamental constitutional independence of the States and their courts,” Atl. Coast
Line, 398 U.S. at 287, and reflect “Congress’ considered
judgment as to how to balance the tensions inherent
in such a system,” Chick Kam Choo v. Exxon Corp.,
486 U.S. 140, 146 (1988). Rooted firmly in constitutional
principles, the Act is designed to prevent friction
between federal and state courts by barring federal
intervention in all but the narrowest of circumstances.
See Alton Box Bd. Co. v. Esprit de Corp., 682 F.2d
1267, 1271(9th Cir. 1982); Bennett v. Medtronic, 285
F.3d 801, 805 (9th Cir. 2002). “Any doubts as to the
propriety of a federal injunction against state court
proceedings should be resolved in favor of permitting
the state courts to proceed. . . . ” Atl. Coast Line, 398
U.S. at 297.
App.85a
A. B&G Foods’ Request for Injunctive Relief
Kim Embry is prosecuting a state court Proposition 65 action (the Alameda Action) against B&G
Foods concerning the presence of acrylamide in its
Cookie Cakes. See RJN, Ex. D. In this Court, B&G
Foods thereafter filed a Complaint seeking “an injunction
against further prosecution or threats of prosecution
under Proposition 65 related to the alleged acrylamide
in its Cookie Cakes,” which, if granted, would have the
effect of enjoining the Alameda Action. See Complaint
at ¶ 94. The Anti-Injunction Act bars this request
because none of the exceptions apply. See 28 U.S.C.
§ 2283; California Chamber of Commerce v. Becerra,
2020 WL 1030980, at *6-8 (E.D. Cal. Mar. 3, 2020)
(“Cal. Chamber”) (similar federal action that sought
to preempt Proposition 65 state court proceedings dismissed by this Court, in part via the Anti-Injunction
Act).
The first exception to the Anti-Injunction Act does
not apply because Congress has not expressly authorized federal injunctions against Proposition 65 cases.
The second exception does not apply because this is
not an in rem or similar in personam action in which
an injunction could be necessary for the Court to
preserve its jurisdiction. See Bennett v. Medtronic, 285
F.3d 801, 806-07 (9th Cir. 2002); Gold Coast Search
Partners v. Career Partner, 2019 WL 4305540, at *4
(N.D. Cal. 2019). The third exception does not apply
because no judgment has been issued from this Court
that could require protection by injunctive relief.
Since none of the statutory exceptions apply, the
Anti-Injunction Act bars this Court from granting
B&G Foods’ requested injunctive relief and requires
dismissing the injunction claim. “[I]f the Anti-Injunction
App.86a
Act bars the court from granting plaintiff’s requested
remedies, it nevertheless warrants a dismissal of the
claims under Rule 12(b)(6).” Cal. Chamber, supra, at
*7.
B. B&G Foods’ Request for Declaratory Relief
“The Anti-Injunction Act also applies to declaratory judgments if those judgments have the same
effect as an injunction.” California v. Randtron, 284
F.3d 969, 975 (9th Cir. 2002); see also Samuels v.
Mackell, 401 U.S. 66, 72 (“[O]rdinarily a declaratory
judgment will result in precisely the same interference
with and disruption of state proceedings that the longstanding policy limiting injunctions was designed to
avoid.”) Here, B&G Foods seeks a “declaration that the
enforcement of Proposition 65 against the Cookie
Cakes is unconstitutional.” See Complaint at ¶ 97.
The declaratory relief, if granted, would effectively
enjoin the Alameda Action because it would decide the
issues of B&G Foods’ anticipated1 affirmative constitutional defenses in favor of B&G Foods and prevent
Embry’s Proposition 65 enforcement action from moving
forward.
Since B&G Foods cannot enjoin Embry from
enforcing Proposition 65 in the Alameda Action, it also
cannot obtain a judgment declaring that her enforcement violates the United States Constitution. See Cal.
Chamber, supra, at *8. Therefore, B&G Foods’ claim
for declaratory relief should also be dismissed under
the Anti-Injunction Act.
1 B&G Foods’ responsive pleading in the Alameda Action was
originally due on April 8, 2020 but was not filed presumably due
to the Covid-19-related court closure.
App.87a
VI. The Court Should Dismiss the Complaint
Under the Noerr-Pennington Doctrine
This suit would punish Defendants for petitioning
California’s executive and judicial branches. The NoerrPennington doctrine bars Plaintiff from pursuing these
ends. The Noerr-Pennington doctrine embodies the First
Amendment’s guarantee of “the right of the people . . . to
petition the Government for a redress of grievances.”
Noerr-Pennington generally immunizes from liability
“those who petition any department of the government
for redress . . . .” Sosa v. DIRECTV, 437 F.3d 923, 929
(9th Cir. 2006). While this doctrine arose in the antitrust context, courts continue to expand and apply the
doctrine in other contexts. Id. at 929-31; see Griffin v.
Jones, 170 F. Supp. 3d 956, 970 (W.D. Ky. 2016) (“if a
party’s actions are protected by the First Amendment,
then that party is immune to suit.”). Naturally, this
broad doctrine applies to petitioning courts through
lawsuits. Id. at 930, 933-34. (citing In BE & K Construction Co. v. NLRB, 536 U.S. 516, 525 (2002)). It
also extends “litigation-related activities preliminary
to the formal filing of the litigation” such as threats to
file suit and pre-litigation demands. Sosa, 437 F.3d at
937 (collecting cases). Courts routinely apply NoerrPennington to section 1983 claims.2
The lone, narrow exception to the Noerr-Pennington
doctrine is the “sham” exemption, which excludes
immunity for petitioning “conduct that use[s] ‘governmental process . . . as an anticompetitive weapon.’”
2 Empress LLC v. City & Cty. of San Francisco, 419 F.3d 1052,
1054 (9th Cir. 2005); Swallow v. Torngren, 789 F. App’x 610, 611
(9th Cir. 2020); Knology, Inc. v. Insight Commc’ns Co., 393 F.3d
656, 658 (6th Cir. 2004).
App.88a
Kearney, 590 F.3d at 644 (quoting Kottle v. Nw. Kidney
Ctrs., 146 F.3d 1056, 1060 (9th Cir. 1998)). The Court
should dismiss 3 Defendant’s claims under NoerrPennington.
A. Proposition 65 Enforcement is Petitioning
Activity of Both the Executive and Judicial
Branches of Government
Based on the allegations in the Complaint, there
should be little dispute here that Plaintiff’s claims
squarely take aim at Embry and Glick’s petitioning
activity. Plaintiff alleges that private enforcers, like
Embry, and their counsel, like Glick, gather evidence
about potential acrylamide exposure in food products
through lab testing (Complaint ¶ 3) and submit that
evidence along with a Notice of Violation to California
through the AG’s office (Complaint ¶ 9(b)). Plaintiff
further alleges that the AG then plays a gate keeper
role, approving or disapproving matters going forward
based on the merits of the evidence submitted and, if
approved, continues to regulate and monitor the action.
Complaint, ¶ 9(b), 9(d). Plaintiff alleges that the AG’s
discretion and regulation of Prop 65 proceedings includes vetting settlement agreements, reviewing the
progress of litigation, intervening in cases, and/or
altering the regulations applicable to Prop 65 enforcement. Complaint, ¶ 9(c).
The Complaint further asserts that, under the
guidance of California’s AG, Defendants and other Prop
3 Noerr-Pennington is ripe for adjudication at the pleadings
stage. Sosa, 437 F.3d 923, 929-30; Kottle, supra, 146 F.3d at 1060
(9th Cir. 1998); Manistee Town Ctr. v. City of Glendale, 227 F.3d
1090, 1092 (9th Cir. 2000); Mazzocco v. Lehavi, 2015 WL 12672026,
at *7 (S.D. Cal. Apr. 13, 2015).
App.89a
65 enforcers have filed acrylamide cases grossing tens
of millions of dollars in settlement payments from food
manufacturers like Plaintiff over the last few years.
Complaint, ¶ 2. After sending a Notice of Violation,
Embry, through her counsel Glick, instituted an action
against Plaintiff in state court for acrylamide in Plaintiff’s cookie product pursuant to the regime outlined
above. RJN, Ex. D. California, through its AG has not
curtailed the action and has in fact encouraged it. Complaint, ¶¶ 65-71. According to Plaintiff, California and
the enforcers of Prop 65 (as well as their counsel) know
acrylamide does not cause cancer and is not a health
risk yet they continue to threaten and engage in litigation to enforce Prop 65 as it related to acrylamide
in food products. Complaint, ¶ 2, 4, 15, 22-31. This
purportedly violates Plaintiff’s Constitutional rights
and amounts to a state-sponsored conspiracy to rob
Plaintiff of its free speech. See generally Complaint,
¶ 9(e)-(h).
Thus, the basis for this lawsuit is two types of
petitioning: first, via the Notice of Violation and supporting evidence, Embry petitions California’s executive
branch; and second, Embry, through Glick, petitions
California courts to enforce Proposition 65. Courts
routinely recognize Notices of Violations, Proposition
65 lawsuits, and similar conduct as petitioning activity.
See e.g. Equilon Enterprises v. Consumer Cause, Inc.,
29 Cal. 4th 53, 57-67 (2002) (upholding anti-SLAPP4
dismissal of declaratory and injunctive relief action
filed in response to a Notice of Violation because it is
4 Courts find anti-SLAPP and Noerr-Pennington protections
analogous. E.g. Tichinin v. City of Morgan Hill, 177 Cal. App. 4th
1049, 1064 (2009).
App.90a
“activity in furtherance of [defendant’s] constitutional
rights of speech or petition. . . . ”); and see CKE Restaurants, Inc. v. Moore, 159 Cal. App. 4th 262, 269 (2008)
(“filing of Proposition 65 intent-to-sue notices is a protected activity.”); Empress LLC v. City & Cty. of San
Francisco, 419 F.3d 1052, 1054-57 (9th Cir. 2005)
(applying Noerr-Pennington in favor of a community
activist accused by a real estate developer of assuming
power of state zoning commission and violating its
constitutional rights).
B. The Sham Exception Does Not Apply
Different sham tests apply to the two types of
petitioning conduct the Complaint attacks. Kottle v.
Nw. Kidney Centers, 146 F.3d 1056, 1061 (9th Cir.
1998) (scope of the sham exception depends on the
branch of government involved.). As such, B&G must
allege both petitioning the California Attorney General
and the enforcement action in court are shams. Further, a “heightened pleading standard” applies. See
Wonderful Real Estate Dev. LLC v. Laborers Int’l Union
of N. Am. Local 220, 2020 WL 91998, at *7 (E.D. Cal.
Jan. 8, 2020) (citing Kottle, 146 F.3d at 1063). The allegations cannot be conclusory but must address “specific
activities which bring the defendant’s conduct into one
of the exceptions.” Id. at *10. B&G fails this test.
B&G’s allegations regarding Defendants’ petitioning of the California Attorney General do not meet
the sham exception. Because of the legislative-like
role Plaintiff alleges the Attorney General plays,5 the
5 See Complaint, ¶ 9 (asserting that the Attorney General is the
gatekeeper for Proposition 65 claims, has ex parte communications with Defendants and other enforcers about Proposition 65
App.91a
stringent legislative petitioning standard applies. See
e.g. Kottle, 146 F.3d at 1061 (which sham standard
applies depends on “whether the executive entity in
question more resembled a judicial body, or . . . a political
entity.”); Comm. to Protect our Agric. Water v. Occidental
Oil & Gas Corp., 235 F.Supp.3d 1132, 1156-57 (E.D.
Cal. 2017) (“executive agenc[ies] charged with enforcing
[California laws] . . . [are] more akin to a political process
than a judicial one.”). Such petitioning is a “sham” only
if the defendant allegedly “use[d] the legislative process
with no expectation of obtaining legitimate government action.” See Comm. to Protect, 235 F.Supp.3d at
1156-57.
The Complaint places Defendants outside the legislative sham exception. Those pursuing Proposition 65
acrylamide in food cases have had enormous success
over the last several years and the Attorney General
has encouraged these lawsuits. Complaint, ¶¶ 2-4, 68.
As such, Plaintiff is unable to plead that Defendants
did not expect to successfully petition the Attorney
General in connection with her efforts to pursue
Proposition 65 litigation against Plaintiff and similar
companies. Because Plaintiff’s claims hinge on the
threshold petitioning of the Attorney General, they
must be dismissed.
The Complaint equally fails to allege sham judicial
petitioning, independently warranting dismissal. There
are three grounds for sham judicial petitioning: (1)
lawsuits that are objectively baseless and pursued
with unlawful motive; (2) a policy of starting legal
proceedings without regard to the merits and for an
enforcement, and can change the regulatory process for carrying
out these enforcement actions).
App.92a
unlawful purpose; and (3) knowing fraud upon or
intentional misrepresentations to a court. Sosa, 437
F.3d 923, 938.
As to the third ground, Plaintiff does not allege
any fraud or intentional misrepresentations by Embry
or Glick. The first two grounds are also absent. Plaintiff has not met the heightened pleading standard for
alleging that the lawsuits were brought with an
unlawful motive and for an unlawful purpose. The most
Plaintiff does is make vague, conclusory allegations.
See Complaint, ¶¶ 2-3, 31.
As to the merits, B&G quibbles with California’s
legislative and regulatory decisions to make acrylamide
in food actionable under Proposition 65, but B&G admits
that Proposition 65 acrylamide litigation successfully
generates millions of dollars in civil penalty recovery.
Complaint, ¶¶ 2-4. Also, Plaintiff alleges that California’s Attorney General vets the merits of the Notices
of Violation and regulates Defendants’ litigation conduct. Complaint, ¶ 9. Indeed, Proposition 65 requires
that attorneys serving Notices of Violation submit a
certificate of merit to the Attorney General, among
others, verifying that the case has merit and that an
expert in the field supports this. Health & Safety Code,
§ 25249.7(d)(1). And if, after reviewing the factual
information underlying this certificate of merit, the
Attorney General concludes that the action lacks merit,
the Attorney General “shall serve a letter to the noticing
party and the alleged violator stating the Attorney
General believes there is no merit to the action.” Id.
at sub. (e)(1)(A). Still further, California courts must
approve the consent judgments reached in Proposition
65 matters which requires the court to assess the
App.93a
proposed settlement’s compliance with the requirements of Proposition 65. Id. at sub. (f)(4).
Plaintiff does not allege that prosecution of this
or other Proposition 65 matters which (1) require an
expert-backed certificate of merit upon submitting the
Notice of Violation, (2) are vetted and regulated by the
executive branch and (3) then subject to scrutiny and
approval by the judicial branch are objectively baseless
or brought without regard to the merits. Indeed, Embry,
represented by Glick, has successfully resolved (via
court-approved settlement) 15 acrylamide in food cases
further validating the non-baseless nature of the conduct
at issue here. RJN, Ex. A. Other Proposition 65 enforcers
have also been successful in acrylamide actions in cases
taken to trial. RJN, Ex. J.
Wonderful Real Estate Dev. LLC v. Laborers Int’l
Union of N. Am. Local 220, 2020 WL 91998, at *2
(E.D. Cal. Jan. 8, 2020) is instructive. In Wonderful, a
real estate developer brought claims against a labor
union and its associates for purportedly “engag[ing] in
a continuing pattern and practice of filing sham litigation and administrative challenges against real
estate developers under the California Environmental
Quality Act (“CEQA”), Cal. Pub. Res. Code § 2100, et
seq.” 2020 WL 91998, *1-2. Specifically, the developer
plaintiff alleged that the union defendant’s CEQA
claims were not based on legitimate, meritorious environmental concerns, but instead an extortion effort
aimed to secure lucrative labor contracts for development projects. Id. at *2. Under the heightened pleading
standard, the court held that the plaintiff failed to
plead facts demonstrating baselessness, such as facts
“disprov[ing] the challenged lawsuit[s’] legal viability,”
App.94a
facts showing that “no reasonable litigant could realistically expect to secure favorable relief,” or facts that
“the pattern of claims [is] baseless as a whole.” Id. at
*7, *10 (citing Prof’l Real Estate Inv’rs, 508 U.S. at 61).
B&G Foods, as in Wonderful, has not pled facts that
meet the heightened pleading standard.
VII. Conclusion
For all of the above reasons, Defendants’ motion
to dismiss should be granted.
Respectfully Submitted,
NICHOLAS & TOMASEVIC, LLP
By: /s/ Craig M. Nicholas
Craig M. Nicholas
Shaun Markley
Jake Schulte
Attorneys for Defendants
Dated: May 1, 2020
App.95a
PLAINTIFF B&G FOODS’S OPPOSITION TO
DEFENDANTS’ MOTION TO DISMISS
(JUNE 1, 2020)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
________________________
B&G FOODS NORTH AMERICA, INC.,
Plaintiff,
v.
KIM EMBRY and NOAM GLICK, acting in the
purported public interest of the general public
of the State of California,
Defendants.
________________________
Case No. 2:20-cv-00526-KJM-DB
Before: Hon. Kimberly MUELLER, Judge
J. Noah Hagey, Esq. (SBN: 262331)
hagey@braunhagey.com
Matthew Borden, Esq. (SBN: 214323)
borden@braunhagey.com
David H. Kwasniewski, Esq. (SBN: 281985)
kwasniewski@braunhagey.com
BRAUNHAGEY & BORDEN LLP
351 California Street, 10th Floor
San Francisco, CA 94104
Telephone: (415) 599-0210
Facsimile: (415) 599-0210
App.96a
ATTORNEYS FOR PLAINTIFF
B&G FOODS NORTH AMERICA, INC.
___________________
PLAINTIFF B&G FOODS’S OPPOSITION TO
DEFENDANTS’ MOTION TO DISMISS
___________________
Plaintiff B&G Foods North America, Inc. (“B&G
Foods”) respectfully submits this Opposition to
Defendants’ Motion to Dismiss (Dkt. No. 18).
INTRODUCTION
Plaintiff B&G Foods brought this § 1983 case to
protect its constitutional right to free speech. Defendants seek to force B&G Foods to place a false cancer
warning on Cookie Cakes that B&G Foods sells around
the country. Defendants are self-described prosecutors
acting on behalf of the State of California under California’s Proposition 65 regime. They seek to compel this
false warning, unless B&G Foods pays a handsome
extortive fee, due to the alleged presence of acrylamide,
a naturally occurring result of baking. But Defendants
know there is no evidence that Cookie Cakes pose any
cancer risk to anyone.
Over the last few years, under the supervision,
regulation, and guidance of the State and its Attorney
General’s office, Defendants have punished food companies with nearly $1.7 million in regulatory “penalties”
and “fines” for failing to include a false cancer warning
about acrylamide. Acrylamide naturally forms when
food is cooked—including when cookies are baked.
Scientists, and leading United States, European, and
international health agencies all agree that acrylamide
App.97a
in food does not cause cancer in humans. Even the
State of California has conceded it does not “know”
that acrylamide is a carcinogen.
In their Motion to Dismiss, Defendants make no
attempt to defend their actions on behalf of the State
or their extortive business model, much less the constitutionality of their conduct. Instead, they assert a
hodgepodge of defenses, all of which ignore the facts
in the Complaint and construe those contested issues
against B&G Foods in violation of the tenets of Rule
12(b)(6).
First, Defendants assert that § 1983 does not apply
to them because they are not state actors. (Mot. at 414.) But as detailed in dozens of allegations in the
Complaint, Defendants are in the business of enforcing
Proposition 65, a purported public health regulation
directed to food labeling, a quintessential traditional
government function. (Compl. ¶ 9(f).) In prosecuting
their claims, Defendants work hand-in-glove with the
State, which oversees every step of the process—from
pre-approving their claims prior to filing, to monitoring
their litigation activity, to approving the terms of any
regulatory fines made by Defendants’ targets. (Compl.
¶¶ 9(a)-(d).) The State and Defendants exist in a symbiotic relationship, cemented by the hundreds of thousands of dollars Defendants make for the State each
year in exchange for the State’s imprimatur on their
extortionate business. (Compl. ¶ 9(e).) And the State
actively encourages Defendants and others like them
to continue to enforce Proposition 65, including through
confidential communiques directly to Proposition 65
enforcers and their attorneys, creating a close nexus
between the State and Defendants. (Compl. ¶ 9(a)–(h).)
Under established law, such conduct constitutes state
App.98a
action. And for good reason: were it otherwise, states
could enforce unconstitutional laws and enact invidious
policies simply by delegating these tasks to “private”
parties.
Second, Defendants assert that the Complaint is
barred by the Anti-Injunction Act, 28 U.S.C. § 2283.
(Mot. at 12-15.) Defendants have not proven that B&G
Foods could never obtain an injunction under any set
of facts. Under Ex parte Young, 209 U.S. 123 (1908), a
plaintiff may “enjoin future state action by suing a
state official for prospective injunctive relief rather
than the state itself.” Thomas v. Nakatani, 309 F.3d
1203, 1208 (9th Cir. 2002). B&G Foods seeks prospective
injunctive relief to aid in the enforcement of any judgment rendered in its favor; it is not seeking a preliminary injunction. (Compl. ¶¶ 94, Prayer for Relief A.)
This is expressly permitted by the Anti-Injunction
Act. 28 U.S.C. § 2283.
Third, Defendants contend that B&G Foods’s
claims are barred by the Noerr-Pennington doctrine.
(Mot. at 16-20). This argument is coextensive with their
argument that they are not state actors because the
Noerr-Pennington doctrine does not apply to state
actors. Separately, the Noerr-Pennington doctrine also
does not apply because Defendants’ “petitioning activity”
is a sham.
Fourth, Defendants argue that allowing this suit
to proceed would invite many similar suits and chill
the protected activities of Proposition 65 enforcers.
(Mot. at 12-13.) But neither Defendants nor any Proposition 65 enforcer has the right to use the statute to
extort money from businesses selling products that
are perfectly safe. If a ruling in B&G Foods’s favor
means that businesses are no longer forced to make
App.99a
ransom payments to Defendants to avoid the unconstitutional enforcement of Proposition 65, that will simply
mean justice has been done.
FACTS
On Rule 12(b)(6), the Court must accept the following factual allegations of the Complaint as true.
A.
The Accused Cookie Cakes
B&G Foods is a hundred-and-thirty-year-old American brand that makes, sells, and distributes a wide
variety of shelf-stable and frozen foods. (Compl. ¶ 6.)
Its “Cookie Cakes are reduced fact chocolate cookies
with marshmallow and fudge coating, sold under the
SNACKWELL’S® brand”:
(Compl. ¶ 13.) “The interior cookie portion of the Cookie
Cakes is baked, just like any other cookie. Otherwise
it would be an unpalatable mess of sugar, flour, and
chocolate.” (Id. ¶ 14.) “The Cookie Cakes are free from
high fructose corn syrup and partially hydrogenated
oils. They do not cause cancer.” (Id. ¶ 15.)
App.100a
B.
Naturally Occurring Acrylamide in Baked
Goods Is Safe
B&G Foods does not add acrylamide to its Cookie
Cakes. (Compl. ¶ 16.) Acrylamide forms when food is
baked, roasted, grilled, or fried. (Compl. ¶ 18.) According
to the FDA, acrylamide has likely “always been present
in cooked foods,” including every cookie ever baked in
any oven—industrial, home, or EZ-bake. (Compl. ¶ 16.)
Decades of research by scientists around the world
have identified no link between naturally occurring
acrylamide in food and nay health risk in humans.
(Compl. ¶¶ 26-28.) Indeed, many foods containing acrylamide are considered essential parts of a healthy diet
and are linked with lower rates of cancer. (Compl.
¶¶ 25, 29.) “The sole basis for California’s Proposition
65 warning requirement for acrylamide are laboratory
studies in which pure acrylamide was given to rats or
mice.” (Compl. ¶ 30.) These studies have been questioned, if not outright disregarded by then National
Cancer Institute, the Environmental Protection Agency,
and the International Agency for Research on Cancer,
all of whom have concluded there is no evidence that
dietary acrylamide poses any risk of harm to humans.
(Id.)1 Even the State itself acknowledged in 2007 that
1 Defendants claim the EPA and IARC have determined that
acrylamide may be a carcinogen. (Mot. at 3.) But those determinations were limited to chronic ingestion of pure acrylamide either
orally or through inhalation, as may occur in certain industrial
settings where synthetic acrylamide is used in the production of
various polymers. EPA Review at 166; IARC Monograph at 425.
And the EPA review specifically concluded that there was no
statistically significant link between consumption of foods with
acrylamide and any type of cancer. EPA Review at 167.
App.101a
acrylamide in food is not actually “known” to cause
cancer in humans. (Compl. ¶ 59.)
B&G Foods’s Cookie Cakes thus do not cause
cancer. The small amount of acrylamide they contain
occurs naturally and is not harmful to humans. (Compl.
¶¶ 22-24.) Defendants have no evidence to the contrary,
nor do they claim they will ever produce such evidence.
C.
Defendants Enforce Proposition 65 on Behalf
of the State
Defendant Kim Embry is a serial Proposition 65
litigant who, on behalf of the State of California, sues
or threatens to sue dozens of businesses every year
based on the alleged presence of acrylamide in their
products. (Compl. ¶ 6.) Despite lending her name to
numerous lawsuits, Defendant Embry has never testified at a deposition, hearing, or trial. (Decl. of David
H. Kwasniewski (“Kwasniewski Decl.”) ¶ 2.) She has
claimed, including in pleadings in this action, that she
has no relevant or percipient knowledge regarding her
Proposition 65 claims. (Dkt. No. 19 at 8 (Embry’s testimony “is wholly irrelevant” and “[s]he would be an
unlikely trial witness”); Kwasniewski Decl. ¶ 2 (In her
state court lawsuit, Defendant Embry initially refused
to appear for deposition on the ground she had no
“percipient knowledge”)). Defendant Embry does not
even herself purchase the products over which she files
suit. In this case, for example, the accused Cookie Cakes
were purchased at a Ralphs Grocery store even
though Embry, who resides in San Francisco, lives at
least 200 miles from the nearest Ralphs location.
Defendant Noam Glick is Embry’s lawyer and the
real driver of their joint Proposition 65 enforcement
enterprise. He resides in San Diego (Compl. ¶ 8), where
App.102a
there are numerous Ralphs locations and presumably purchases the products over which Defendants
file suit. He drafts and personally signs the Proposition
65 Notices of Violation and submits them to the Attorney General’s office (Dkt. No. 18-5). The lion’s share of
the $1.7 million collected by Embry from the businesses she has sued has gone to pay Defendant Glick’s
supposed fees. (Compl. ¶ 2.)
Defendants’ Proposition 65 enforcement actions
are closely supervised, regulated, and encouraged by
the State. Prior to initiating any action, Defendants
must “first serve a Notice of Violation on the State
through the Attorney General’s Office, together with
evidence supporting the supposed merit” of their allegations. (Compl. ¶ 9(b).) If the Notice lacks merit, the
State serves a letter on the parties objecting to further
action, and a private enforcer who proceeds with an
action after receiving such a letter may be sanctioned.
Cal. Health & Safety Code § 25249.7(f).
The State further monitors Defendants by “requesting pre-approval of any potential settlement or
consent judgment, receiving an reviewing notices
regarding the progress of acrylamide case litigation,
intervening in particular cases, regulating the conduct
of representatives, demanding to receive proportional
cuts of civil penalties,” and routinely promulgating
regulations governing the particular mechanisms and
methods of Proposition 65 enforcement. (Compl. ¶ 9(c).)
The Attorney General specifically regulates the settlement agreements of the Defendants, and recently
rejected one because it awarded Defendant Glick nearly
$40,000 in fees despite delivering no benefit to the
public. (Compl. ¶ 9(d).) The Proposition 65 enforcement
actions of Defendants and similar private prosecutors
App.103a
have netted the State millions of dollars in recent
years, and the State has responded by actively encouraging and assisting private Proposition 65 enforcers.
(Compl. ¶ 9(e)-(h).)
ARGUMENT
A motion to dismiss for failure to state a claim
tests whether a complaint “contain[s] sufficient factual
matter to state a claim to relief that is plausible on its
face.” Orion Wine Imports, LLC v. Applesmith, No.
2:18-CV-01721-KJM-DB, 2020 WL 869142 *4 (E.D.
Cal. Feb. 21, 2020) (internal quotations and citations
omitted). “In making this context-specific evaluation,
this court must construe the complaint in the light
most favorable to the plaintiff and accept its factual
allegations as true.” Id.
I.
B&G FOODS PLAUSIBLY ALLEGES ITS RIGHTS
WERE VIOLATED
Defendants do not dispute that B&G Foods has
plausibly alleged its constitutional rights are violated
by the enforcement of Proposition 65 against the
Cookie Cakes. Laws compelling businesses to provide
information in connection with commercial transactions are permissible only if the compelled disclosure
is purely factual and uncontroversial, reasonably
related to a substantial government purpose, and not
unjustified or unduly burdensome. Nat’l Inst. of Family
Life Advocates v. Becerra, 138 S. Ct. 2361, 2372, 2377;
Zauderer v. Office of Disciplinary Counsel, 471 U.S.
626, 651 (1985). As alleged in the Complaint, Proposition 65, when enforced against the Cookie Cakes, fails
this test because a warning that the Cookie Cakes
cause cancer would be literally false: there is no
App.104a
scientific evidence, and California certainly does not
“know,” that
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