A California federal court has dismissed two claims and allowed four to continue in a putative class action alleging that (i) Salov North America Corp. mislabeled its Filippo Berio olive oils as “Imported from Italy” despite using olives grown and pressed in other countries and (ii) its extra virgin olive oils do not meet the high standards required to qualify as “extra virgin,” partly due to inefficient bottling and transportation. Kumar v. Salov North Am. Corp., No. 14-2411 (N.D. Cal., order entered February 3, 2015). The court first assessed Salov’s challenge to the plaintiff’s standing and found that it could not, as a matter of law, determine that a reasonable consumer would not interpret “Imported from Italy” to mean that the product was made exclusively of Italian olives. Salov also asserted that the plaintiff must have seen the statement on the label that informed consumers that the product was “Packed…
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A California federal court has denied a motion to dismiss a putative class action alleging that Deoleo USA Inc., importer of Bertolli and Carapelli olive oils, misrepresented the quality of the oils as “extra virgin” despite being mixed with refined oil and using bottles insufficient to prevent sunlight and heat degradation. Koller v. Med Foods, Inc., No. 14-2400 (N.D. Cal., order entered January 6, 2015). Deoleo attacked the complaint for failing to supply the studies supporting the argument that “’imported ‘extra virgin’ olive oil often fails international and USDA standards’ and that packaging olive oil in clear bottles can lead to rapid degradation of its quality,” but the court dismissed the argument for being premature to the pleading phase. Deoleo also asserted that while studies may support the proposition that the oil it imports may not meet extra virgin standards, the plaintiff could not show that the oil in the bottle…
After granting a motion for summary judgment in favor of Kangadis Food Inc.’s (KFI’s) owners, a New York federal court has issued an order further explaining its decision to dismiss the owners from a false-labeling class action. Ebin v. Kangadis Family Mgmt. LLC, No. 14-1324 (S.D.N.Y., order entered December 1, 2014). Additional information about the initial dismissal appears in Issue 543 of this Update. The court held that the plaintiffs “totally failed” to properly argue that the court should pierce the corporate veil and hold the owners liable for KFI’s actions. To satisfy the second prong of the piercing-the-veil test, the plaintiffs had to show that the owners, “through their domination, abused the privilege of doing business in the corporate form to perpetrate a wrong or injustice” against the plaintiffs. The court found that rather than providing an argument satisfying the second prong, the plaintiffs merely provided a “wholly conclusory statement”…
A federal court in New York has granted the motion for summary judgment filed by the owners of Kangadis Food Inc., a company that declared bankruptcy when faced with class claims that it falsely labeled its products as pure olive oil when they actually contain an industrially processed substance. Ebin v. Kangadis Family Mgmt. LLC, No. 14-1324 (U.S. Dist. Ct., S.D.N.Y., order entered October 24, 2014). Additional information about the litigation appears in Issue 539 of this Update. According to the court, the “plaintiffs have failed to adduce competent labeling evidence from which any reasonable juror could conclude that defendants used their alleged domination of Kangadis Food Inc. as a means to accomplish the fraud here alleged.” Counsel for the defendants reportedly surmised that the court agreed that the plaintiffs’ “derivative claims are nothing more than a desperate attempt to extract some value from the defendants, individuals and a separate entity with…
A New York bankruptcy court and federal court have issued orders certifying classes in litigation against Kangadis Food, Inc. d/b/a The Gourmet Factory and related entities, alleging that the company falsely labeled its products as “100% Pure Olive Oil” when they actually contain the industrially processed substance “olive-pomace oil,” “olive-residue oil” or “Pomace.” In re Kangadis Food Inc., No. 14-72649 (U.S. Bankr. Ct., E.D.N.Y., order entered September 19, 2014); Ebin v. Kangadis Family Mgmt. LLC, No. 14-1324 (S.D.N.Y., order entered September 18, 2014). Additional information about the federal court proceeding appears in Issue 507 of this Update. While the federal court dismissed the direct claims against the company’s owners, it found that the claims could proceed against them “under the veil piercing and alter ego theories.” The court further rejected the defendants’ “ascertainability” challenge to class certification, noting that “whether or not an individual purchased during the class period a tin…
After Kangadis Food Inc. filed for bankruptcy claiming that putative class litigation challenging its alleged misleading olive oil representations has cost the company, which does business as The Gourmet Factory, more than $1.4 million in attorney’s fees and could cost an additional $750,000 if the claims go to trial, the named plaintiffs filed class claims against its owners in a New York federal court. Ebin v.Kangadis Family Mgmt. LLC, No. 14-1324 (S.D.N.Y., filed June 11, 2014). The heavily redacted complaint alleges that these individuals were directly involved in trying to pass off pomace oil, processed from olive oil residue, as “100% Pure Olive Oil” under the Capatriti brand. Details about the litigation appear in Issue 515 of this Update. One of the individuals named as a defendant in the new lawsuit—identified as Aristidis Kangadis—apparently evaded deposition when the company’s counsel argued to the court that he “is a 73 year…
Researchers from Switzerland’s technology and natural sciences university, ETH Zurich, have reportedly developed a method of tagging olive oil that can determine the product’s origin and whether it has been adulterated. Consisting of tiny, magnetic DNA particles encapsulated in a silica casing that are mixed with the oil, a few grams of the material are enough to tag the entire olive oil production of Italy. According to the researchers, if counterfeiting is suspected, the particles added at the place of origin can be extracted from the oil and analyzed, revealing the original producer. “The method is equivalent to a label that cannot be removed,” said researcher Robert Grass. Lab experiments evidently revealed that the tags dispersed well in the oil, did not affect clarity or taste, remained stable when heated, and passed a two-year aging trial. Research also showed that the analysis and testing method “can be carried out today by…
A federal court in New York has denied the motion for summary judgment filed by the defendant in litigation alleging that it mislabeled its industrially processed olive-pomace oil as “100% Pure Olive Oil.” Ebin v. Kangadis Food Inc. d/b/a The Gourmet Factory, No. 13-2311 (S.D.N.Y., order entered February 25, 2014). Details about the court’s grant of the plaintiffs’ motion to certify a class appear in Issue 507 of this Update. The court rejected, again, the defendant’s argument that its Capatriti olive-pomace oil is, as a matter of law, olive oil. According to the court, “there exists more than sufficient evidence for a trier of fact to determine that Capatriti is not 100% pure olive oil. Capatriti has more trans-fat and fewer antioxidants than virgin olive oil, is tasteless, is made from the seed and skin rather than the flesh of the olive, and undergoes chemical treatment with solvents, rather than a…
A federal court in New York has certified a consumer-fraud class action against Kangadis Food Inc., d/b/a The Gourmet Factory, alleging that the company falsely labels its products as “100% Pure Olive Oil” when they actually contain the industrially processed substance “olive-pomace oil,” “olive-residue oil” or “Pomace.” Ebin v. Kangadis Food Inc. d/b/a The Gourmet Factory, No. 13-2311 (S.D.N.Y., order entered December 11, 2013). The court approved the named plaintiffs as class representatives and indicated that a memorandum stating the reasons for its ruling “will issue in due course.” Additional information about the lawsuit appears in Issue 492 of this Update. On the day the order issued, the court also filed a memorandum explaining its reasons for dismissing certain claims and allowing others to proceed in an order entered in July 2013. The court dismissed for insufficient pleading the plaintiffs’ New York breach of warranty claims, express and implied; breach…
A District of Columbia court has determined that a plaintiff who purchased a bottle of Pompeian-brand extra-virgin olive oil (EVOO) after learning that testing done in 2010 and 2011 concluded that certain EVOO brands did not satisfy U.S. and international EVOO standards has standing to bring certain consumer-fraud claims despite purportedly believing that the product was defective when purchased. Mostofi v. Mohtaram, Inc., No. 2011 CA 163 B (D.C. Super. Ct., order entered November 12, 2013). Thus the court rejected the defendant’s “manufactured” or “self-inflicted” injury standing argument. According to the court, “The dispositive consideration is that Plaintiff is a consumer who engaged in a consumer transaction.” The court also disagreed with the defendant that the plaintiff lacked expert testimony or that his sampling testing was insufficiently reliable to support two claims of statutory consumer fraud, finding they were matters of fact to be determined by a jury. The court…
