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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

) WESTERN SUGAR COOPERATIVE, ) et al., ) ) Plaintiffs, ) ) v. ) ) ARCHER-DANIELS-MIDLAND CO., ) et al., ) ) Defendants. ) )

No. CV 11-3473 CBM (MANx) ORDER GRANTING IN PART AND DENYING IN PART CERTAIN DEFENDANTS MOTION TO DISMISS PLAINTIFFS SECOND AMENDED COMPLAINT

The matter before the Court is Certain Defendants Archer-Daniels-Midland Company (ADM), Cargill, Inc. (Cargill), Corn Products International, Inc. (Corn Products), Roquette America, Inc. (Roquette), and Tate & Lyle Ingredients Americas, Inc.s (Tate & Lyle) (collectively, the Member Companies) Motion to Dismiss Plaintiffs Second Amended Complaint pursuant to Rules 12(b)(6) and 9(b) of the Federal Rules of Civil Procedure. (ECF No. 57.)

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This Court has jurisdiction pursuant to the Lanham Act, 15 U.S.C. 1051, et seq., including 15 U.S.C. 1121, and 28 U.S.C. 1331 and 1338. Venue is proper pursuant to 28 U.S.C. 1391(a). FACTUAL BACKGROUND AND PROCEDURAL HISTORY This case involves a dispute between producers of table sugar and those of high fructose corn syrup (HFCS or corn syrup). Plaintiffs are sugar producers and two trade associations comprised of companies, each of whom is a grower, and/or producer, and/or sugar refiner in the United States. (Second Amended Complaint for Damages and Injunctive Relief for False Advertising in Violation of the Lanham Act (SAC), at 12-21, Nov. 21, 2012, ECF No. 55.) The named defendants are a national trade association, made up of business enterprises in the corn refining industry, and members of the trade organization (collectively, Defendants). (SAC at 22-29.) The SAC alleges that in 2008, Defendant Corn Refiners Association (the CRA), a trade association of corn refiners, began a campaign whereby the CRA bought television commercials, print advertisements, and other media to provide the public with information regarding HFCS. (Id. at 52.) The campaign allegedly includes a website found at www.sweetsurprise.com. (Id.) The campaign employs the use of phrases such as HFCS is corn sugar, HFCS is natural, and HFCS is the same as sugar. (Id. at 52-54.) Plaintiffs also allege that HFCS is a man-made product that does not naturally occur, making it different from table sugar, which they allege is extracted from cane beets. (Id. at 31-32, 63.) Plaintiffs also allege that HFCS is linked to the obesity epidemic and its effect on the human body differs from that of table sugar. (Id. at 33-40.) Plaintiffs suit against the CRA and its members alleges that the campaign is false and misleading to consumers in a manner that will cause confusion, which constitutes false advertising in violation of Section 43(a) of the Lanham Act. 15
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U.S.C. 1125(a). Plaintiffs allege that Defendants violate these laws by making claims that HFCS is natural and should be referred to as corn sugar as well as claims that HFCS is nutritionally and metabolically equivalent to other sugars. (SAC at 5, 65-75.) On October 21, 2011, this Court denied Defendants motion to dismiss Defendant CRA, and granted Defendants motion to dismiss the Member Companies with leave to amend. (Order Denying in Part and Granting in Part Defendants Motion to Dismiss Plaintiffs First Amended Complaint (Order), Oct. 21, 2011, ECF No. 46.) Plaintiffs filed the SAC on November 21, 2011. (SAC, ECF No. 55.) Defendant CRA subsequently filed an Answer to Plaintiffs Second Amended Complaint on December 16, 2011. (CRAs Answer to Plaintiffs Second Amended Complaint, Dec. 16, 2011, ECF No. 56.) The Member Companies now file the instant motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) on the grounds that Plaintiffs claim against the Member Companies for violations of Section 43(a) of the Lanham Act fails to state a claim upon which relief can be granted. The motion is also brought pursuant to Federal Rule of Civil Procedure 9(b) on the grounds that Plaintiffs claim against the Member Companies for violations of Section 43(a) of the Lanham Act is not pleaded with sufficient particularity. STANDARD OF LAW I. Federal Rules of Civil Procedure 12(b)(6)

Federal Rule of Civil Procedure 12(b)(6) allows a court to dismiss a complaint for failure to state a claim upon which relief can be granted. Dismissal of a complaint can be based on either a lack of cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dept, 901 F.2d 696, 699 (9th Cir. 1990). On a motion to dismiss for failure to state a claim, the court accepts as true all well3

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pleaded allegations of material fact, and construes them in light most favorable to the non-moving party. Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031-32 (9th Cir. 2008). To survive a motion to dismiss, the complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A formulaic recitation of the elements of a cause of action will not suffice. Twombly, 550 U.S. at 555 (citations omitted). Although generally the scope of review on a motion to dismiss for failure to state a claim is limited to the complaint, the court may consider evidence on which the complaint necessarily relies if: (1) the complaint refers to the document, (2) the document is central to the plaintiffs claim, and (3) no party questions the authenticity of the copy attached to the 12(b)(6) motion. Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006) (internal quotations omitted). The court may treat such a document as part of the complaint, and thus may assume that its contents are true for purposes of a motion to dismiss under Rule 12(b)(6). Id. (quoting United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003)). II. Federal Rules of Civil Procedure 9(b) Pleading requirements are normally governed by Rule 8(a), which requires that a complaint must contain a short and plain statement of the claim showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a). If a plaintiff lacks personal knowledge about certain facts, but obtained hearsay or other secondhand information that lead him or her to believe them to be true, those facts can be alleged on information and belief. Pirelli Armstrong Tire Corp. Retiree Med. Benefits Trust v. Walgreen Co., 631 F.3d 436, 442 (7th Cir. 2011). When a plaintiff sets out allegations on information and belief, he is representing that he has a good-faith reason for believing what he is saying, but acknowledging that his
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allegations are based on secondhand information that [he] believes to be true. Id. (quoting Black's Law Dictionary 783 (7th ed.1999)). However, a claim sounding in fraud is subject to a heightened pleading requirement set forth in Rule 9(b), which requires a plaintiff to state with particularity the circumstances constituting fraud. Fed. R. Civ. P. 9(b). Under the Rule 9(b) standard, the complaints allegations must be specific enough to give defendants notice of the particular misconduct which is alleged to constitute the fraud charged so that they can defend against the charge and not just deny that they have done anything wrong. Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir. 1985). Courts are divided on the issue of whether Rule 9(b) applies to false advertising claims. Compare John P. Villano, Inc. v. CBS, Inc., 176 F.R.D. 130, 131 (S.D.N.Y. 1997) (concluding that a claim of false advertising . . . falls outside the ambit of rule 9(b)) with EcoDisc Tech. AG v. DVD Format/Logo Licensing Corp., 711 F. Supp. 2d 1074, 1085 (C.D. Cal. 2010) (Pfaelzer, J.) (applying Rule 9(b) to a false advertising claim that the court found was grounded in fraud). However, this Court has not found any circuit cases, including the Ninth Circuit, which addresses this issue. DISCUSSION I. Introduction

The Member Companies consist of corn refiners whose officers are board members of the CRA. The Member Companies argue that Plaintiffs have failed to state a claim against them for the following reasons: (1) Plaintiffs have not sufficiently pleaded any claim against them under the Lanham Act; (2) Plaintiffs agency allegations do not satisfy Twombly or Rule 9(b); (3) Plaintiffs conspiracy allegations do not satisfy Twombly or Rule 9(b); and (4) Plaintiffs have failed to make individual allegations against each of the Member Companies as is required
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to state a claim based on independent conduct, agency, or conspiracy. The Court addresses each of the Member Companies arguments below. II. Individual Allegations The Member Companies argue that Plaintiffs SAC should be dismissed because Plaintiffs have improperly lumped all of the Member Companies together and have failed to set forth individual and particular allegations against each of the Member Companies, as required to pursue any Lanham Act claim. (Mot. at 10:15-20; see also Specht v. Google, Inc., 660 F. Supp. 2d 858, 865 (N.D. Ill. 2009) (dismissing complaint alleging violation of the Lanham Act that fail[ed] to make any distinction among the 48 Corporate Defendants . . . consist[ed] vague allegations on information and belief with no factual specifics [and] treat[ed] the numerous Defendants . . . as a collective whole and d[id] not identify any specific act of infringement by any single Defendant.)) Plaintiffs argue that they have provided a factual basis for the challenged conduct against all five of the Member Companies. (Oppn at 20:27-28.) Plaintiffs further argue that they have not deprived any of the Member Companies of fair notice about their agency relationship with the CRA or their status as joint tortfeasors. (Oppn at 18:3-5.) The Ninth Circuit has held that Rule 9(b) does not allow a complaint to merely lump multiple defendants together but requires plaintiffs to differentiate their allegations when suing more than one defendant and inform each defendant separately of the allegations surrounding his alleged participation in the fraud. United States v. Corinthian Colleges, 655 F.3d 984, 997-98 (9th Cir. 2011) (quoting Swartz v. KPMG LLP, 476 F.3d 756, 764-65 (9th Cir. 2007). There are three paragraphs in the factual background section of the SAC where Plaintiffs set forth individual allegations as to four of the five Member Companies:

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The Cargill and Corn Products websites, for example, provide direct links to the Sweet Surprise campaign website to expand exposure to and the audience for the false advertising campaign. Cargill, and others, including Tate & Lyle, have also used spokespersons to disseminate the advertising theme that HFCS is no different than sugar. ADM, Corn Products, and, upon information and belief, the other Member Companies, have similarly repeated, endorsed, and ratified the messaging of the advertising campaign in direct communications to customers, ranging from detailed presentations to simple correspondence. (SAC at 53) (emphasis added.) Tate & Lyle, for example has used the phrase corn sugar to denote HFCS in presentations, annual reports, pricing sheets and other communications directed to customers and investors. ADM, Cargill, and Corn Products have also used the phrase corn sugar to denote HFCS in pricing sheets and in other communications. (SAC at 61) (emphasis added.) Also, as with the other aspects of the challenged advertising campaign, in speeches and publications, individual Member Companies (sometime through senior executives or other authorized spokespersons) have endorsed, supported and ratified the name change from HFCS to corn sugar. For example, Mr. Willits of Cargill has expressed his companys motivation for supporting the use of the corn sugar terminology to reinforce the notion that HFCS is the same as real sugar. (SAC at 62) (emphasis added.) (See also SAC 23-28.) Plaintiffs allege that Member Companies ADM, Corn Products, and upon information and belief, the other Member Companies [ . . .] ratified the message of the advertising campaign in direct communications to customers. (SAC at 53) (emphasis added.) These facts alone are not sufficient to inform any of the Member Companies, other than ADM and Corn Products, of their fraudulent conduct. Plaintiffs also allege that Member Companies Corn Products and Cargill websites provided a direct link to the Sweet Surprise campaign website. (See SAC at 53). However, Plaintiffs conceded at the motions hearing that there is no
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case law which holds that a direct link to another website establishes ratification. Plaintiffs further allege that Member Companies Cargill and Tate & Lyle used spokespersons to disseminate the advertising theme that HFCS is no different than sugar. (SAC at 53.) Plaintiffs also allege that ADM, Tate & Lyle, Cargill, and Corn Products have ratified the rebranding of HFCS by using the phrase corn sugar in place of HFCS. (SAC at 61.) Plaintiffs further allege that Tate & Lyle used the phrase corn sugar in presentations, annual reports, pricing sheets, and other communications directed to customers and investors. (Id.) ADM, Cargill, and Corn Products also allegedly used the phrase corn sugar in pricing sheets and other communications. (Id.) The Court finds that these facts, namely, the use of spokespersons to disseminate the advertising theme, and the use of the phrase corn sugar in documents and communications that are directed toward customers and investors, are sufficient to inform Member Companies Cargill, Tate & Lyle, ADM, and Corn Products, of their alleged fraudulent conduct. However, the Court finds that these facts are not sufficient to inform Member Company Roquette of its alleged fraudulent conduct. Plaintiffs fail to specify any facts regarding the creation and dissemination of the challenged advertising campaign as it pertains to Roquette. Plaintiffs only individual allegation as to Roquette involves an officer and senior executives membership on the CRAs Board of Directors, which is based upon information and belief. (See SAC at 26, 28.) Plaintiffs do not allege any individual, wrongful conduct against Roquette. Plaintiffs do not allege sufficient facts to state a claim against Roquette. The Court therefore grants the motion to dismiss as to Member Company Roquette only. III. Principal-Agent Relationship The Member Companies also argue that Plaintiffs SAC should be dismissed
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because Plaintiffs have failed to meet the Rule 9(b) pleading requirements of establishing that a principal-agent relationship existed between the CRA and the Member Companies. (Certain Defendants Motion to Dismiss Plaintiffs Second Amended Complaint (Mot.) at 6:12.) Plaintiffs argue that, even if Rule 9(b) does apply to their Lanham Act claims, their vicarious liability allegations are not themselves based on fraudulent conduct and not subject to Rule 9(b)s heightened pleading requirements. (Oppn at 4:21-5:12; 7:15-17.)1 However, the Seventh Circuit has held that when the plaintiff relies upon the same circumstances to establish both the alleged fraud and the agency relationship . . . the reasons for more particularized pleading that animate Rule 9(b) apply with equal force to the issue of agency and to the underlying fraud claim. Lachmund v. ADM Investor Servs., 191 F.3d 777, 783 (7th Cir. 1999). To establish an agency relationship, Plaintiffs must allege that both the principal and the agent have manifested an assent that the principal has the right to control the agent. See United States v. Bonds, 608 F.3d 495, 506 (9th Cir. 2010); see also Bauman v. Daimler Chrysler Corp., 644 F.3d 909, 923 (9th Cir. 2011). Actual control is not necessary, as long as there is an agreement that the principal has the right to control the agent, an agency relationship exists. Id. Moreover, a trade organization is not necessarily an agent of the companies that are its members. See York v. Tennessee Crushed Stone Assn, 684 F.2d 360, 362-63 (6th Cir. 1982); see also General Bldg. Contractors Assoc., Inc. v. Pennsylvania, 458 U.S. 375 (1982) (holding that liability could not be vicariously imposed on contractors and their trade association based on the discriminatory conduct of the union or the jointly apprenticeship training committee, whose members were jointly appointed by the union and contractors).
At the motions hearing held on March 21, 2012, Plaintiffs counsel conceded that fraud is alleged in the SAC, and that the heightened pleading standard under Rule 9(b) properly applies to the Lanham Act claim. However, Plaintiffs counsel also argued that the SAC is sufficiently pleaded to meet the heightened pleading standard under Rule 9(b) as to the Member Companies.
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Plaintiffs argue that they have sufficiently pleaded that the CRA is an agent of the other defendants such that the CRAs conduct of false advertising should be imputed to the Member Companies under a vicarious liability theory. In the SAC, Plaintiffs allege that [u]pon information and belief, both the CRA and the Member Companies assent to the right of the CRA members to control the CRA in this way, in particular with respect to the advertising challenged in this action. (SAC at 29). Plaintiffs also allege that the Member Companies use the CRA as their agent to affect consumer sentiments on HFCS through the allegedly-false advertising campaign. (SAC at 46-53, 60-62.) Specifically, Plaintiffs allege that the Member Companies, through Board representation, subject[] certain decisions (including, on information and belief, the decisions to fund, design and launch the challenged false advertising campaign) of the CRAs Board of Directors to the approval of the CRA members themselves, and that the Member Companies provide the funding that has been required to orchestrate and maintain this significant, broad-based, national media, multimillion dollar advertising campaign. (SAC at 4849.) Plaintiffs also allege that decisions of the CRA, including the decisions to launch and fund the multimillion dollar advertising campaign targeted by this action as well as the day-to-day details about such matters as the advertisings content are subject to the approval of the Member Companies themselves. (SAC at 28.) Moreover, Plaintiffs allege that the Member Companies provide the CRA with the majority of regular membership dues and other money, including special assessments earmarked to fund the advertising challenged. (SAC at 29.) The Member Companies also allegedly authorize special assessments necessary to design, develop and sustain the advertising campaign. (SAC at 47.) Plaintiffs further allege that the Member Companies conspired to exercise their collective right and actual power to control the CRA as their agent during
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regular meetings of the CRA Board of Directors or separate meetings that were conducted contemporaneous with the regular meetings. (SAC at 46.) Plaintiffs also incorporate by reference a New York Times article stating that the CRA, which represents Member Companies ADM, Cargill, Tate & Lyle, and Corn Products, plowed more than $30 million over the last two years into the Sweet Surprise advertising campaign website. (SAC at 51.) Plaintiffs also allege that some of the Member Companies posted links from their websites to the Sweet Surprise campaign website, and used the term corn sugar in their annual reports and pricing sheets that are directed to customers and investors. (SAC at 52-53, 61.) Several of Plaintiffs allegations are based upon information and belief. However, Plaintiffs must set forth the source of their information or a sufficient factual basis upon which their information and belief is based. See Neubronner v. Milken, 6 F.3d 666, 672 (9th Cir. 1993) (affirming the dismissal of a complaint for lack of particularity under Rule 9(b) because a plaintiff who makes allegations on information and belief must state the factual basis for the belief even though the allegations concern matters peculiarly within the defendants knowledge.); see also U.S. ex rel. Karvelas v. Melrose-Wakefield Hosp., 360 F.3d 220, 226 (1st Cir. 2004) ([A]llegations of fraud made on information and belief are also subject to the additional requirement that the complaint set[] forth the facts on which the belief is founded.) (internal citations omitted). In the SAC, Plaintiffs reiterate many of the previous allegations they believe lend support to the fact that the CRA is an agent to the Member Companies. However, Plaintiffs describe the CRA Board of Directors membership by listing the names and titles of the officers from each Member Company, as well as the number of hours the officers spent working on CRA business and the advertising campaign. (See SAC at 22-28.) Plaintiffs also allege that decisions to launch
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and fund the multimillion dollar advertising campaign was subject to the approval of the Member Companies. (SAC at 29). Plaintiffs further allege that the Member Companies provide the overwhelming majority of regular membership dues to the CRA. (SAC at 29.) In addition, Plaintiffs allege specific funding amounts totaling approximately $13 million for the false advertising campaign, and allege the approximate years of 2008, 2009, 2010, and 2011 when the annual funding took place. (SAC at 50.) Plaintiffs argue that a principal-agent relationship existed between the CRA and the Member Companies based on the allegations involving the Member Companies collective right, power to control, and domination of the CRA. (SAC at 46-49) (alleging that the Member Companies participated in funding, board membership, attendance at board meetings, and authorize special assessments necessary to design, develop, and sustain the advertising campaign). The Court therefore finds that Plaintiffs have pleaded sufficient facts to support its allegation that a principal-agent relationship existed between the CRA and Member Companies ADM, Cargill, Corn Products, and Tate & Lyle.

IV. Conspiracy/Joint Tortfeasor Liability The Member Companies further argue that the SAC should be dismissed against them because Plaintiffs have not alleged the elements of a conspiracy with particularity pursuant to Rule 9(b) of the Federal Rules of Civil Procedure. (Mot. at 8:2228.) Plaintiffs, however, insist that they have alleged sufficient facts to support a theory of vicarious liability, and that any use of the word conspiracy is just another way of describing a concert of action and intent which will extend tort liability beyond the active wrongdoer to those who merely planned, assisted, or encouraged his acts. (Plaintiffs Opposition to Certain Defendants Motion to
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Dismiss Plaintiffs Second Amended Complaint (Oppn) at 12:24-13:4) (quoting Trafficschool.com, Inc. v. Edriver, Inc., 633 F. Supp. 2d 1063, 1082-83 (9th Cir. 2011)). Plaintiffs therefore argue that they are not relying on a civil conspiracy theory, stating that joint tortfeasor liability is a theory of vicarious liability sometimes also called conspiracy but distinct from the separate claim of civil conspiracy. (Oppn at 3:7-9.) However, the plaintiff is the master of his claim. Caterpillar Inc. v. Williams, 482 U.S. 386, 391 (1987). While there is no mention of joint-tortfeasor liability in the SAC, Plaintiffs do assert a theory of joint tortfeasor liability in their Opposition and during oral argument. (Oppn at 12:24-26.) In order to rely upon a theory of joint-tortfeasor liability under the Lanham Act, Plaintiffs must offer specific facts which Defendant could deny. See Cooper v. Pickett, 137 F.3d 616, 628 (9th Cir. 1997). The Supreme Court has held that a plaintiffs obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action. Bell Atlantic Corp. v. Iqbal, 550 U.S. 544, 555 (2007) (internal quotations omitted). Joint-tortfeasor liability is available only when the defendant has knowingly participated in the creation, development, and propagation of the false advertising campaign. In re Century 21-Re/Max Realty Estate Advertising Claims Litig.,882 F. Supp. 915, 925 (C.D. Cal. 1994) (Stotler, J.). In the SAC, Plaintiffs allege that the Member Companies conspired to exercise their collective right and actual power to control the CRA [ . . .] in an attempt to turn consumer sentiment around, (SAC at 46) (emphasis added), and that the Member Companies orchestrated these acts largely through their control and domination of the CRA and authorized the CRA to receive from them the necessary funding for such an advertising campaign. (SAC at 47.) Plaintiffs
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also allege that [t]he Corn Refiners Association, at the direction of and in concert with several of its member companies, crafted a publicity campaign to revitalize and rebrand HFCS. (SAC at 3) (emphasis added.) Plaintiffs further allege that, as the HFCS sales continued to slump in the second half of 2010, the CRA and the Member Companies re-doubled their-rebranding effort. (SAC at 54; see also SAC at 63.) These re-branding efforts included obtaining FDA approval to change the products name so that consumers will no longer see high fructose corn syrup listed as an ingredient on food and drink labels, but rather a different sweetener, corn sugar. (SAC at 54.) The Court therefore finds that Plaintiffs have pleaded sufficient facts to allege a theory of joint tortfeasor liability against Member Companies ADM, Cargill, Corn Products, and Tate & Lyle. CONCLUSION The Court finds that Plaintiffs have set forth detailed allegations against Member Companies ADM, Cargill, Corn Products, and Tate & Lyle, that, taken together with the individual allegations against those Member Companies, satisfy Twombly and Rule 12(b)(6). In addition, Plaintiffs have pleaded sufficient facts to establish the mutual assent required to allege that a principal-agent relationship exists between Member Companies ADM, Cargill, Corn Products, Tate & Lyle and the CRA. Plaintiffs have also pleaded sufficient facts to allege a theory of joint-tortfeasor liability against Member Companies ADM, Cargill, Corn Products, and Tate & Lyle. If Rule 9(b) applies, the Court further finds that Plaintiffs claims satisfy the heightened pleading requirement, as Plaintiffs allege with particularity facts for a false advertising claim against Member Companies ADM, Cargill, Corn Products, and Tate & Lyle. ORDER For the foregoing reasons, the Court GRANTS Certain Defendants Motion
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to Dismiss Plaintiffs Second Amended Complaint only as to Defendant Roquette America, Inc. pursuant to Rules 12(b)(6), Twombly, and Rule 9(b). The Court DENIES Certain Defendants Motion to Dismiss Plaintiffs Second Amended Complaint as to Defendants Archer-Daniels-Midland Company, Cargill, Inc., Corn Products International, Inc., and Tate & Lyle Ingredients Americas, Inc. pursuant to Rules 12(b)(6), Twombly, and Rule 9(b).

IT IS SO ORDERED. Date: July 31, 2012 By: __________________________________ HONORABLE CONSUELO B. MARSHALL United States District Court Judge

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