Health Law Daily Wrap Up, Dietary Supplements—D.D.C.: Manufacturer’s cost-of-compliance calculation violated non-aggregation principle, (Jun 1, 2026)

By Jeffrey H. Brochin, J.D.

The amount in controversy was not established as exceeding $75,000 and the court remanded the matter due to lack of diversity jurisdiction.

A federal district court in the District of Columbia has granted the motion for remand to state court filed by a consumer who sued OP2 Labs, LLC over claims of violations of the D.C. Consumer Protection Procedures Act (DCCPPA). The allegations stemmed from the manufacturer’s labeling of their Daily Recovery Protein (a ready-to-drink dietary supplement) as containing 15 grams of protein when testing indicated only 13.5 grams, and by utilizing collagen protein, which the consumer claimed does not function or provide the same benefits as a “complete” protein. Notwithstanding the fact that the injunctive relief sought by the consumer would cost the manufacturer well over $500,00 to comply with, the court found the amount in controversy to be under the $75,000 threshold because lawsuits brought pursuant to the DCCPPA’s “private attorney general” provision look to the cost per affected consumer, which would not amount to $75,000 each (Hardy-Gerena v. OP2 Labs, LLC, No. 25-cv-3510 (CRC) (D.D.C. May 29, 2026)).

Type and amount of protein contested. The manufacturer (also doing business as Frog Fuel) sells the protein supplement Daily Recovery Protein. According to the complaint, Frog Fuel advertises that Daily Recovery Protein is “the most advanced protein engineered to support rapid recovery of muscles and connective tissue” and “100% digestible in <15min.” Furthermore, the product’s nutrition label states that it contains 15 grams of protein per serving and 22 amino acids. However, the consumer alleged that those claims were misleading because Daily Recovery Protein contains collagen protein, which “does not function or provide the same benefits as a “complete” protein.” He further claimed that unlike collagen protein, a “complete” protein has all nine essential amino acids that the body does not produce on its own and at levels at or above levels of reference standard.

After purchasing the product in June 2025, the consumer’s “third-party testing” revealed that Daily Recovery Protein only contained 13.4 grams of protein per serving. He filed suit against the manufacturer seeking damages, injunctive relief, and attorney fees pursuant to the DCCPPA’s “private attorney general” provision. The manufacturer removed the matter to federal court citing diversity of citizenship and the statutory amount in controversy. Presently before the court was the consumer’s motion to remand, which for the reasons cited below was granted.

Non-aggregation principle. The consumer asserted that Frog Fuel’s cost-of-compliance calculation violated the non-aggregation principle, which prohibits the aggregation of claims by multiple plaintiffs in assessing whether the amount-in-controversy requirement for diversity jurisdiction has been satisfied. The court assumed that (1) the cost of complying with the requested injunctive relief [here, $500,000] may be considered when assessing the amount in controversy; and (2) that Frog Fuel accurately estimated the cost of compliance. However, the court found that as the consumer correctly noted, Frog Fuel’s notice of removal ignored the non-aggregation principle entirely, under which, a party may not aggregate “separate and distinct claims of two or more plaintiffs in order to satisfy the jurisdictional amount requirement” under 28 U.S.C. § 1332(a).

Specifically, in actions brought under the DCCPPA’s private attorney general provisions, the consumer and the members of the public he represents are deemed to have separate and distinct claims for relief. Accordingly, when a consumer seeks injunctive relief on behalf of himself and the general public, courts have routinely applied the non-aggregation principle, holding that a manufacturer’s removal of DCCPPA actions cannot rely on the total cost of compliance with the consumer’s requested injunction to establish the amount-in-controversy requirement of § 1332(a). Put another way, the cost of compliance that a court should consider when determining the amount in controversy is the total amount divided among the beneficiaries of the injunction. Although Frog Fuel’s cost of compliance with the requested injunction might well exceed $500,000 in total, the relevant question was Frog Fuel’s cost of compliance per D.C. consumer, which—lacking any data submitted by the manufacturer—was not shown to exceed $75,00 per injunction beneficiary.

Attorney fees amount. The manufacturer next argued that surely the attorney fees to be claimed would exceed the $75,000 threshold amount and were estimated to even exceed $1.3 million. Under that view, the non-aggregation principle was inapplicable because the consumer’s attorneys were “not doing any additional work on behalf of the general public that they were not already doing for him.” However, the court disagreed, Frog Fuel’s argument was premised on its assertion that the entire amount of attorney fees and costs should be attributed solely to the consumer, when in fact that too would be allocated among all consumers affected by the injunctive relief.

Based on the foregoing, the court concluded that, under the DCCPPA’s private attorney general provision and the non-aggregation principle, the amount in controversy was not established as exceeding $75,000 and it accordingly remanded the matter due to lack of diversity jurisdiction.

The case is No. 25-cv-3510 (CRC).

Judge: Cooper, C.

Attorneys: Jane Manwarring (Migliaccio & Rathod LLP) for Giordano Hardy-Gerena. Todd Rosenbaum (Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.) for OP2 Labs, LLC d/b/a Frog Fuel.

Companies: OP2 Labs, LLC d/b/a Frog Fuel

Cases: CaseDecisions SupplementNews GCNNews LabelingNews DistrictofColumbiaNews