Physicians Committee for Responsible Medicine v. General Mills, Inc. , 283 F. App'x 139 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1008
PHYSICIANS COMMITTEE FOR RESPONSIBLE MEDICINE; CATHERINE
HOLMES,
Plaintiffs - Appellants,
v.
GENERAL MILLS, INC.; DANNON COMPANY, INCORPORATED; MCNEIL
NUTRITIONALS, LLC; INTERNATIONAL DAIRY FOODS ASSOCIATION;
DAIRY MANAGEMENT, INCORPORATED; NATIONAL DAIRY COUNCIL;
LIFEWAY FOODS, INCORPORATED,
Defendants - Appellees.
-------------------------
WASHINGTON LEGAL FOUNDATION; UNITED STATES OF AMERICA,
Amici Supporting Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema, District
Judge. (1:05-cv-00958-LMB)
Argued: March 19, 2008 Decided: June 19, 2008
Before NIEMEYER and KING,* Circuit Judges, and David R. HANSEN,
Senior Circuit Judge of the United States Court of Appeals for the
Eighth Circuit, sitting by designation.
*
Judge King heard oral argument in this case but recused
himself thereafter. The decision is filed by a quorum of the
panel. 28 U.S.C. § 46(d).
Affirmed by unpublished opinion. Judge Niemeyer wrote the opinion,
in which Senior Judge Hansen joined.
ARGUED: Daniel Kinburn, PHYSICIANS COMMITTEE FOR RESPONSIBLE
MEDICINE, Washington, D.C., for Appellants. Steven J. Rosenbaum,
COVINGTON & BURLING, Washington, D.C., for Appellees. ON BRIEF:
Bernard J. DiMuro, John M. Tran, DIMUROGINSBERG, P.C., Alexandria,
Virginia, for Appellants. Joshua D. Wolson, COVINGTON & BURLING,
Washington, D.C., for Appellees; Richard Rossier, Alex Menendez,
MCLEOD, WATKINSON & MILLER, Washington, D.C., for Appellees Dairy
Management, Incorporated, and National Dairy Council; Matthew R.
Estabrook, Andrew S. Tulumello, Claudia M. Osorio, GIBSON, DUNN &
CRUTCHER, L.L.P., Washington, D.C., for Appellee General Mills,
Inc.; Craig A. Hoover, E. Desmond Hogan, HOGAN & HARTSON, L.L.P.,
Washington, D.C., for Appellee Dannon Company, Incorporated; Brian
D. Boyle, S. Bradley Perkins, O’MELVENY & MYERS, L.L.P.,
Washington, D.C., for Appellee McNeil Nutritionals, L.L.C.; David
J. Gogal, BLANKINGSHIP & KEITH, P.C., Fairfax, Virginia, for
Appellee Lifeway Foods, Incorporated. Daniel J. Popeo, Richard A.
Samp, WASHINGTON LEGAL FOUNDATION, Washington, D.C., for Washington
Legal Foundation, Amicus Supporting Appellees. Peter D. Keisler,
Assistant Attorney General, Chuck Rosenberg, United States
Attorney, Douglas N. Letter, Appellate Staff, Civil Division,
August E. Flentje, Appellate Staff, Civil Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for the United States,
Amicus Supporting Appellees.
Unpublished opinions are not binding precedent in this circuit.
2
NIEMEYER, Circuit Judge:
Catherine Holmes and Physicians Committee for Responsible
Medicine commenced this class action against numerous dairy
producers and trade associations, alleging that the defendants’
industry-wide advertising campaign, which in essence stated that
consuming 24 ounces of dairy products per day would promote weight
loss, constituted false and deceptive advertising, in violation of
the Virginia Consumer Protection Act (“VCPA”), Va. Code Ann. §
59.1-196 et seq. and Virginia’s false advertising statute (“VFAS”),
Va. Code Ann. §§ 18.2-216, 59.1-68.2 to 51.9-68.5. The plaintiffs
sought a permanent injunction prohibiting future advertising
containing weight-loss claims and a mandatory injunction requiring
the defendants to undertake a “corrective market campaign” stating
that consumption of dairy products would either cause weight gain
or at best have no effect. In addition, Holmes demanded damages.
The district court granted the defendants’ motion to dismiss
the complaint on various grounds. The only grounds relevant to
this appeal are the district court’s conclusions that neither
Virginia statute authorizes an action by a private plaintiff for
injunctive relief and that the doctrine of primary jurisdiction
applied to this case, because the plaintiffs appealed only those
rulings.
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Because we agree with the district court’s reading of the two
Virginia statutes, we affirm on that ground and do not reach the
second issue of primary jurisdiction.
I
Count I of the complaint was brought under the VCPA, which
declares unlawful a broad range of “fraudulent acts or practices”
by a supplier, including “[m]isrepresenting that goods or services
have certain quantities, characteristics, ingredients, uses, or
benefits” and “[u]sing any other deception, fraud, false pretense,
false promise, or misrepresentation” in connection with a consumer
transaction. Va. Code Ann. § 59.1-200(A)(5), (14). For their
claim for injunctive relief, the plaintiffs rely on § 59.1-203,
which authorizes suits for injunctions as follows:
A. Notwithstanding any other provisions of law to
the contrary, the Attorney General, any attorney for the
Commonwealth, or the attorney for any city, county, or
town may cause an action to be brought in the appropriate
circuit court in the name of the Commonwealth, or of the
county, city, or town to enjoin any violation of §
59.1-200. The circuit court having jurisdiction may
enjoin such violations notwithstanding the existence of
an adequate remedy at law. In any action under this
section, it shall not be necessary that damages be
proved.
B. Unless the Attorney General . . . determines that
a person subject to the provisions of this chapter
intends to depart from this Commonwealth or to remove his
property herefrom . . . he shall, before initiating any
legal proceedings as provided in this section, give
notice in writing that such proceedings are
contemplated . . . .
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C. The circuit courts are authorized to issue
temporary or permanent injunctions to restrain and
prevent violations of § 59.1-200.
D. The Commissioner of the Department of Agriculture
and Consumer Services . . . shall have the power to
inquire into possible violations of § 59.1-200, and, if
necessary, to request, but not to require, an appropriate
legal official to bring an action to enjoin such
violation.
(Emphasis added).
Even though § 59.1-203 grants no explicit authority to private
parties to obtain injunctive relief for violations of the VCPA, the
plaintiffs argue that subsection (C) stands separately and by
implication authorizes private suits for injunctive relief. As
they explain:
[Section 59.1-203(A)] provides that the Attorney General
or any other public prosecutor may bring an action to
enjoin violations of the statute, “notwithstanding the
existence of an adequate remedy at law. . . .” In
contrast to § 59.1-203A, subsection C provides that “the
circuit courts are authorized to issue temporary or
permanent injunctions to restrain and prevent
violations.” This provision allows private parties to
seek such relief . . . .
* * *
The reason for the lack of detail in Subsection C is
apparent from review of the fundamental requirements for
obtaining injunctive relief -- whether the legal remedy
of damages is adequate to cure an irreparable harm that
has been suffered. . . . In providing [in subsection A]
that public prosecutors may obtain an injunction,
“notwithstanding the existence of an adequate remedy at
law,” the Virginia legislature is making a distinction
between those who are exempted from the general proof
requirement for injunctive relief and those who are not.
It follows that subsection C is included to allow for
injunctive action for those [private parties], such as
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Appellants, who must prove that their legal remedies are
inadequate.
The plaintiffs’ arguments must be rejected for several
reasons. Although § 59.1-203(C) standing alone does, indeed, not
specify who may seek the injunctions that the “circuit courts are
authorized to issue,” id., when that subsection is viewed in the
context of § 59.1-203 as a whole, as well as within the overall
structure of the VCPA, it becomes apparent that the Act provides no
private cause of action for injunctive relief.
First, we begin by observing that no language in § 59.1-203
explicitly authorizes private suits for injunctions, and certainly
no language does so with the clarity of language used in § 59.1-
204(A), which does authorize private suits, but only for damages or
a penalty. Section 59.1-204, entitled “Individual action for
damages or penalty,” states broadly that “[a]ny person” who suffers
loss may bring an action to recover “actual damages” or a $500
penalty, “whichever is greater.” In contrast, § 59.1-203 refers
narrowly to the ability of “the Attorney General, any attorney for
the Commonwealth, or the attorney for any city, county, or town” to
bring suits for injunction. It is “significant that the General
Assembly . . . chose not to use language parallel” to § 59.1-204 in
defining the cause of action in § 59.1-203. Rectors & Visitors of
Univ. of Va. v. Harris, 387 S.E.2d 772, 775 (Va. 1990). Since §§
59.1-203 and 59.1-204 are part of a common and comprehensive
statutory scheme, we conclude that the better reading of this
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narrowly-tailored language in the VCPA is that two distinct classes
of plaintiffs -- public officials on the one hand, and private
parties on the other -- are authorized to seek two different kinds
of relief. See, e.g., H. D. Oliver Funeral Apartments, Inc. v.
Dignity Funeral Servs., Inc., 964 F. Supp 1033, 1039 (E.D. Va.
1997) (“Nor is there any provision in the VCPA authorizing Oliver
to seek an injunction against Altmeyer [for conduct allegedly
violating the statute]”); VNB Capital Corp. v. Fisher, 1982 WL
215231 at *5 (Va. Cir. Ct. 1982) (“Although the primary enforcement
mechanism provided in the VCPA is that of injunctive and civil
actions prosecuted by the Attorney General or local enforcement
officials, Va. Code §§ 59.1-201, 59.1-202, 59.1-203 and 59.1-206,
the Act also provides for individual consumer remedies of damages
and restitution[,] Va. Code §§ 59.1-204, 59.1-205 and 59.1-207”).
Second, even though § 59.1-203(C) does not contain an explicit
statement of who can sue for injunctive relief, it cannot for that
reason be properly read to contain an implicit authorization for
private actions for injunctive relief. Subsection (C) is not a
free-standing provision; rather, it is part of § 59.1-203 as a
whole and follows subsection (A), which authorizes only public
officials -- “the Attorney General, any attorney for the
Commonwealth, or the attorney for any city, county, or town” -- to
seek an injunction “in the name of the Commonwealth, or of the
county, city, or town.” Likewise, it follows subsection (B), which
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speaks of what measures the Attorney General and other public
officials must take before bringing a suit for injunction as
authorized by subsection (A). Va. Code Ann. § 59.1-203(B). And no
mention of any private cause of action is present in subsection
(D), which follows subsection (C) and again relates to when an
officer of the Commonwealth may request that another public
official bring a suit authorized by subsection (A) to enjoin
conduct in violation of the VCPA. Id. § 59.1-203(D). Given that
subsection (C) follows subsection (A)’s authorization of suits by
public officials and is found between two other subsections
unambiguously dealing with the power of public officials to seek
injunctions under subsection (A), the plain and natural reading of
subsection (C) is that it, too, qualifies subsection (A) and
concerns suits brought by public officials thereunder.
The plaintiffs argue that this reading renders subsection (C)
surplusage, because subsection (A) already authorizes injunctions.
While subsection (A) of § 59.1-203 does provide that the circuit
courts may issue injunctions in suits brought by public officials
without regard to traditional equitable requirements, such as proof
of damages and inadequacy of remedies at law, it is silent as to
the type of injunction that may be granted. Subsection (C)
therefore qualifies subsection (A) by stating specifically that
either “temporary or permanent” injunctions may be issued in suits
by public officials, as the Virginia legislature has repeatedly
8
chosen to state elsewhere in the Virginia Code despite the seeming
obviousness of that fact. See, e.g., Va. Code Ann. § 3.1-296.21(authorizing court to grant, upon application, “a temporary or
permanent injunction”); id. § 3.1-106.17 (same); id. § 3.1-828.13
(same); id. § 56-525 (same). Thus, despite the plaintiffs’
argument that subsection (A)’s authorization of suits for
injunction means that “[i]t goes without saying that . . . the
courts may issue either temporary or permanent injunctions,” the
General Assembly’s decision to make explicit in subsection (C) what
the plaintiffs would have us assume in subsection (A) cannot
somehow render that legislative statement surplusage.
Third, the bifurcated remedy scheme of the VCPA, whereby
individuals may sue for damages under § 59.1-204 and government
officials may sue for injunctions under § 59.1-203, is reflected
and assumed in other provisions of the VCPA. Subsection (A) of §
59.1-204.1, for example, provides a two-year statute of limitations
for “[a]ny individual action pursuant to § 59.1-204,” the VCPA
damages provision. (Emphasis added). This statute of limitations
makes no mention of a time limitation for individual suits for
injunctions under § 59.1-203, suggesting that such individual suits
for injunctions are not contemplated under the VCPA. Likewise,
§ 59.1-204.1(B) tolls the limitations period for individual actions
when “any of the authorized government agencies” files suit, but
only for individual “action[s] under § 59.1-204.” (Emphasis
9
added). Section 59.1-206, another provision of the VCPA, refers to
the ability of “the Attorney General, the attorney for the
Commonwealth, or the attorney for the county, city, or town” to
recover civil penalties for violations of injunctions issued under
§ 59.1-203, but it makes no mention of a similar recovery by
private parties seeking injunctions. And § 59.1-207, which
concerns unintentional violations of the VCPA, states that
attorney’s fees and costs may be awarded to “individuals aggrieved”
“pursuant to § 59.1-204 B,” the damages provision, but makes no
mention of awarding similar costs of suit for individuals suing
under § 59.1-203.
It is apparent from this statutory structure that damage suits
under § 59.1-204 are the private remedy authorized by the VCPA, and
that no corresponding cause of action for private suits exists
under § 59.1-203.
For these reasons, we agree with the district court that the
plaintiffs were not authorized to bring claims for injunctive
relief under the VCPA and therefore it was appropriate for the
district court to have dismissed the claim.
II
Count II of the complaint was brought under the VFAS, which,
in relevant part, makes it a misdemeanor to use “any promise,
assertion, representation or statement of fact which is untrue,
10
deceptive or misleading” in connection with certain advertisements
to the public. Va. Code Ann. § 18.2-216.
Like the VCPA, the false advertising statute contains a
bifurcated remedy scheme, whereby government officials may seek to
enjoin violative conduct and individuals may seek damages. Va.
Code Ann. §§ 59.1-68.2 to 59.1-68.5. The statute contains two
remedial provisions concerning injunctions, both of which
undisputedly authorize only suits by public officials. The first
of these states that “the Attorney General may investigate and
bring an action in the name of the Commonwealth to enjoin any
violation of [the statute].” Id. § 59.1-68.2 (emphasis added). And
the second provides that “any attorney for the Commonwealth, or the
attorney for any city or county, may investigate and cause to be
brought suit in the name of the Commonwealth, or of the county or
city, to enjoin any violation of [the statute].” Id. § 59.1-68.4
(emphasis added). In contrast, each of the VFAS damages
provisions, §§ 59.1-68.3 and 59.1-68.5, allows “[a]ny person who
suffers loss” as a result of a violation of the VFAS to “bring an
individual action to recover damages, or $100, whichever is
greater.” Id. §§ 59.1-68.3, 59.1-68.5 (emphasis added).
In light of the unambiguous language of the two VFAS
injunction provisions, the plaintiffs do not contend that any
statutory text directly authorizes a private suit for injunctive
relief. Rather, they argue that “[b]ecause injunctive relief is a
11
standard remedy when legal remedies are not adequate, it may be
said that injunctive relief is an implicit extension of any statute
granting damages,” and that there is therefore an “implied right to
injunctive relief pursuant to Va. Code Ann. §§ 59.1-68.3 and 59.1
68.5,” the VFAS damages provisions. (Emphasis added). But as with
the VCPA, the explicitly bifurcated structure of the statute, as
well as the distinct language used to create a cause of action for
damages that may be brought by “[a]ny person who suffers loss” and
a cause of action for injunctive relief that may be brought by only
specifically named public officials, indicates that there can be no
such implied right. Compare Va. Code Ann. §§ 59.1-68.3 and 59.1-
68.5 (damages) with id. §§ 59.1-68.2 and 69.1-68.4 (injunctions).
In addition, § 59.1-68.3 itself states that in an individual action
for damages under the false advertising statute, exhibits from any
action “in which the Attorney General has obtained a permanent
injunction” may be introduced into evidence. (Emphasis added); see
also § 59.1-68.5 (noting same where “the Commonwealth, or a county
or city has obtained a permanent injunction”) (emphasis added).
The inclusion of this language in the statute, with no proviso made
for introduction of evidence from private suits for injunction,
belies the plaintiffs’ contention that the legislature implicitly
intended to authorize private claims for injunctive relief.
With this statutory language and structure, we are not free to
imply a private equitable remedy. The statute reveals a conscious
12
choice by the Virginia legislature to limit its availability to
suits by public officials. See Sch. Bd. of City of Norfolk v.
Giannoutsos, 380 S.E.2d 647, 649 (Va. 1989) (“[W]here a statute
creates a right and provides a remedy for the vindication of that
right, then that remedy is exclusive unless the statute says
otherwise”).
The plaintiffs nonetheless contend additionally that an
independent basis for obtaining private injunctive relief exists
under the Virginia false advertising statute because it is a
criminal statute. They base their position on Black & White Cars,
Inc. v. Groome Transportation, Inc., 442 S.E.2d 391 (Va. 1994),
arguing that in that case “the Virginia Supreme Court recognized
that an injunction may issue to private parties where violation of
a penal statute results in damages that would be difficult to
quantify,” even where the statute does not specifically authorize
such equitable relief for private parties. But the plaintiffs read
Black & White Cars too broadly.
In that case, the plaintiff taxicab companies sought an
injunction against an unlicensed competitor who was advertising as
a taxi service, in violation of a Norfolk city ordinance. Black &
White Cars, 442 S.E.2d at 393. Although the court permitted the
plaintiffs to obtain an injunction, it began by noting that “the
general rule” was “that a penal statute or ordinance does not
automatically create a private right of action, and that equity
13
will not enter an injunction merely because such a statute has been
violated.” Id. at 394. Importantly, the court’s reason for
finding an exception to this general rule was the principle that
“an injunction is appropriate relief where violation of a penal
statute or penal ordinance results in special damage to property
rights which would be difficult to quantify.” Id. (emphasis
added). The taxicab companies, as franchisees of the city holding
“valuable property rights” in their licenses, made this showing.
Id. at 395. For this distinguishable reason, Black & White Cars
was noted to be an exception to the general rule.
In this case the plaintiffs have not alleged the existence of
any property right akin to the taxi franchises in Black & White
Cars that could suffer special damage by a violation of the VFAS,
an omission that is fatal to their argument. Moreover, reading a
private equitable cause of action into the VFAS under Black & White
Cars would be particularly inappropriate where, as here, the
statute is not silent as to whether a private cause of action
exists, but rather explicitly authorizes a private cause of action
that is limited to only damages.
Because neither the VCPA nor the VFAS permits a private suit
for injunctive relief, we affirm the order of the district court
dismissing the plaintiff’s claims for injunctive relief. And
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because we rely on this ground to affirm, we do not reach the issue
of primary jurisdiction.
AFFIRMED
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