There's a lot about this opinion by Judge McKeown that's really good. It's a tight, coherent and well-explained disposition.
But there's one part that seems to me very much unlike the others. And that might make for some really bad law.
The issue is what it takes to have organizational standing. Friends of the Earth and the Center for Food Safety are two organizations that care deeply about not using antibiotics in food production. While many chicken "producer" companies have phased out the routine use of antibiotics, Sanderson Farms hasn't, and that matters a fair piece, because Sanderson sells its chickens to (amongst others) Olive Garden. So the two organizations put out blog posts and other literature that try to educate people about the dangers of Sanderson Farms' practices and its ties to Olive Garden.
In August 2016, the two organizations became aware that Sanderson marketed and advertised its chicken products as “100% Natural” and ran advertisements stating that there were “[n]o antibiotics to worry about here.” Claims to which -- understandably -- these public interest groups took umbrage. After conducting investigation into these claims, in 2017, the two organizations sued Sanderson for false advertising.
The question is whether the organizations have standing to file this suit. Everyone agrees that the groups have organizational standing if they diverted organizational resources to respond to the false advertising, whereas everyone also agrees that there's no standing if they simply carried on their "business as usual." What's in dispute is where the dividing line exists between these two poles and on which side the facts of the present case happen to fall.
Judge McKeown concludes that the district court didn't err when it found that the organizations didn't have standing because they didn't “expend[] additional resources that they would not otherwise have expended [] in ways that they would not have expended them.” There's lots in her opinion that supports that conclusion, and overall, I get the disposition. For the most part, the organizations appear to have kept on doing what they were already doing.
Here's the part of the opinion, though, that I found infinitely less persuasive than the remainder.
After exploring all the things the organizations didn't do differently, Judge McKeown says:
"Once Sanderson’s misleading advertisements were brought to the attention of the Advocacy Groups, they simply continued doing what they were already doing— publishing reports on and informing the public of various companies’ antibiotic practices. This evidentiary void cannot be filled by emails in which the Advocacy Groups’ employees shared articles about Sanderson’s practices and deceptive advertisements, querying internally whether something should be done; evidence of any diversion of resources remains missing."
Really?
It seems to me a profoundly bad rule that "diversion of resources" can't be found when the diversion is simply internal. Moreover, unlike the remainder of the opinion, this particular holding in the opinion isn't supported by analysis and/or precedent; it just sits there.
Imagine, for example, that an organization becomes aware of a particular company's false advertising and is profoundly worried about it. It thinks it might decide to sue, or maybe start a new advertising campaign, or (perhaps) do nothing. So it hires a new employee to investigate the advertising and make sure it's false and harmful; moreover, two existing employees of the organization spend 25% of their time reviewing the new advertising and deciding what should be done. There are emails, memoranda, and the like that confirm all of this internal activity. Ultimately, the organization decides to file suit, and the defendant moves to dismiss for lack of organizational standing. Let's also stipulate that the organization hadn't conducted any new campaigns or the like in response to the new advertisement prior to filing its lawsuit.
Judge McKeown is undoubtedly right that you can't create standing by simply pointing to the resources spent filing (or prosecuting) the lawsuit itself; for that reason, she cuts off any "diversion" at the point at which the organizations filed suit. (This may perhaps be an overly broad application of the rule, but that's a separate point.) But, to me, the organizations undoubtedly have organizational standing in the hypothetical I've described notwithstanding the fact that all the diversion of resources was "internal" to the organization. The standard is whether the entity “expended additional resources that they would not otherwise have expended, and in ways that they would not have expended them.” Yes, one of the ways you can expend additional resources is to do things externally; new campaigns, new advertisements and the like. But that's not a categorical rule; or, at least, I didn't see that as a categorical rule before today. If the false advertising causes you to waste money internally, that seems like it fully qualifies as well, so long as you're (as in the hypothetical) spending money in ways you weren't spending it before.
For that reason, it seems wrong to say that organizational standing can't be created by, inter alia, "querying internally whether something should be done" -- if that results in a diversion of resources, yeah, that counts. If you hire a thousand new employees to consult on and decide whether a new campaign should be conducted in response to the false advertisement, you've got standing; ditto for one new employee, or a diversion of twenty percent of an existing employee's time. That's time and effort (and money) that can't be spent on what you're ordinarily doing, and it creates standing.
So the principle that Judge McKeown espouses seems just wrong as a categorical matter. Now, I could potentially see her (or the district court) perhaps saying something like "the diversion here was simply de minimus" and that a couple of emails (or whatever) doesn't count as an actual "diversion". But the fact that the diversion was internal doesn't matter to me. And saying that "querying internally whether something should be done" can't create standing just seems wrong. I think it can, as well as should.
I agree that a stray email or two won't count. But that goes to the quantum of evidence, not its quality or nature. You get enough internal emails, and, yeah, that's sufficient diversion and standing -- after all, while the virtual ink is free, the employees' time isn't. Make a false advertisement and make a group spend tons of internal money deciding what to do about it and, yep, they've got standing to sue.
At least in my view.
