`In Search of Mislabeled Olive Oil to Make a Buck - Olive Oil Times

In Search of Mislabeled Olive Oil to Make a Buck

Nov. 19, 2013
Virginia Brown Keyder

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A recent seem­ingly minor deci­sion by Judge Brian F. Holeman of the Washington DC Superior Court, Civil Division, on a motion (request) by defen­dant gro­cery Mohtamar, Inc. for sum­mary judg­ment is at first glance enough to scare off any inter­ested party untrained in the twists and turns of the Common Law. It is how­ever of con­sid­er­able impor­tance.

The defen­dant gro­cer (among oth­ers) was sued by one Dean Mostofi in 2011, for vio­lat­ing the DC Consumer Protection Procedures Act (CPPA) by sell­ing Pompeian brand olive oil mis­la­beled as extra-vir­gin.’ Having become aware of the mis­la­beled oil after read­ing about the famous 2010 UC Davis Report that named Pompeian as one of the cul­prits in the extra-vir­gin mis­la­bel­ing scan­dal, the plain­tiff promptly bought a bot­tle and brought an action for injuries suf­fered.’

Much of the deci­sion is taken up with the ques­tion of whether the D.C. statute allows a con­sumer to sue where he/she reads about a mis­la­beled prod­uct and buys it solely for the pur­pose of bring­ing legal action (i.e. whether he/she has stand­ing’) for injuries suf­fered. This is an impor­tant ques­tion, as allow­ing such an action could open the doors to masses of liti­gious con­sumers’ actions for any report­edly mis­la­beled prod­uct – an event that could con­ceiv­ably put any medium size enter­prise out of busi­ness in record time.

Relying on ear­lier case law to the effect that a plain­tiff has a right to be free from improper trade prac­tices” and may sue even though he suf­fered no judi­cially cog­niz­able injury,” the Court rejected the defense that the plain­tiff know­ingly pur­chased prod­ucts that he believed were defec­tive and did so for the pur­pose of fil­ing a law­suit,” and was there­fore the vic­tim of a self inflicted injury.” Judge Holeman stated:

No prece­dent estab­lishes that the Court must apply a good faith” stan­dard to the actions of a plain­tiff in order to find that the stand­ing require­ment has been met. Further, Plaintiff does not need to demon­strate that he suf­fered any phys­i­cal, emo­tional, or mon­e­tary injury (empha­sis added); an actual or imme­di­ate statu­tory vio­la­tion is suf­fi­cient to estab­lish an injury-in-fact,” (p. 5) and held that: The dis­pos­i­tive con­sid­er­a­tion is that Plaintiff is a con­sumer who engaged in a con­sumer trans­ac­tion. This trans­ac­tion is pro­tected by the CPPA.” (p. 6)

Rejecting (in part) the motion for sum­mary judg­ment, Judge Holeman left the ques­tions of whether the consumer’s rea­son­able expec­ta­tion’ has been vio­lated, and whether he/she can prove by clear and con­vinc­ing evi­dence” a claim of inten­tional mis­rep­re­sen­ta­tion under the CPPA, to be decided at trial.

It might be noted, that Pompeian, an importer and bot­tler of olive oil based in Baltimore, was the only to attain the USDA Quality Monitoring Program logo for its extra vir­gin and organic oils, after olive oil was added to the USDA’s list of eli­gi­ble prod­ucts. This should log­i­cally ren­der this par­tic­u­lar law­suit moot, but the encour­age­ment this deci­sion pro­vides to fur­ther vex­a­tious lit­i­gants rep­re­sents a real dan­ger to all pro­duc­ers who choose to do busi­ness in Washington, D.C.


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