Kumar v. Salov:

The United States District Court denied a motion to dismiss the plaintiff's claims, finding that ‘the reasonable consumer’ could well have been deceived into thinking the oil was from Italian olives.

Rohini Kumar, as read­ers will remem­ber from my ear­lier arti­cle, ini­ti­ated a class action suit against Salov in the Northern District Federal Court of California in July 2014 alleg­ing that Salov, the importer of Filippo Berio olive oil from Italy, com­mit­ted fraud by giv­ing promi­nence on the label of its prod­uct to ‘Imported from Italy’ while min­i­miz­ing noti­fi­ca­tion of the actual ori­gins of the oil.

The plain­tiff also alleged that Salov com­mit­ted fraud by char­ac­ter­iz­ing the oil as extra vir­gin. This fraud entailed both mix­ing ‘refined’ oil with what once may have been extra vir­gin, the com­plaint alleges, and by ensur­ing that even it had been extra vir­gin, it was degraded by the time it reached the con­sumer due to the use of clear pack­ag­ing.
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On Feb 3, 2015, the court denied Salov’s motion to dis­miss Kumar’s claims, basi­cally find­ing that ‘the rea­son­able con­sumer’ could well have been deceived into think­ing the oil was in fact from Italian olives (in spite of the fact that Kumar acknowl­edged hav­ing read the ‘best by’ dates posi­tioned next to the indi­ca­tion of ori­gin) and that the claims for fraud­u­lent label­ing of the oil as ‘extra-vir­gin’ were suf­fi­ciently sub­stan­ti­ated for this stage of the plead­ings.

Three claims that Kumar Lacked Standing Rejected

The Court rejected Salov’s argu­ment that Kumar had no stand­ing to bring the action because, hav­ing become aware of the mis­state­ment, Kumar faced no dan­ger of being fur­ther deceived in the future. District Judge Yvonne Gonzalez Rogers stated, “The pos­si­bil­ity of future injury is alleged suf­fi­ciently if the plain­tiff would encounter the same state­ments today and could not be any more con­fi­dent that they were true.”
See more: Articles on Olive Oil Fraud
Salov’s sec­ond claim that Kumar lacked stand­ing to bring the ‘extra-vir­gin’ fraud claim because she failed to show that the actual bot­tle of olive oil she pur­chased was not in fact extra-vir­gin, and there­fore failed to show injury in fact, was also rejected. The Judge stated that Kumar needed not “prove that the par­tic­u­lar bot­tle of oil she pur­chased had, in fact, degraded to the point of not being extra vir­gin,” and quoted Judge Seeborg in a com­pan­ion case to the effect that “each con­sumer who pur­chases extra vir­gin olive oil, is enti­tled to receive oil that meets that def­i­n­i­tion by design, not by hap­pen­stance.”

Salov’s third claim that Kumar lacked stand­ing because she pur­chased only one prod­uct and brings claims against a range of prod­ucts was also rejected as “a mat­ter to be con­sid­ered at the class cer­ti­fi­ca­tion stage, not the plead­ing stage.”

Tariff Act Claim

Salov’s claim that “Kumar can­not rely on the Tariff Act as a basis for her UCL claim because Congress has vested exclu­sive enforce­ment author­ity in the U.S. Customs and Border Protection agency”, was also rejected. The Judge relied on a 2014 US Supreme Court hold­ing to the effect that “even if a pri­vate plain­tiff is not per­mit­ted to enforce a fed­eral statute or reg­u­la­tion directly, the fed­eral law may form the pred­i­cate for a pri­vate right of action under another fed­eral or state law where the fed­eral law does not expressly pro­hibit such an action.”

Insufficiency of Claim of Fraud Rejected

Finally, the Judge rejected Salov’s dis­missal claim that Kumar’s alle­ga­tions of fraud were not suf­fi­ciently sub­stan­ti­ated. She found the claims, which out­line the “the who, what, when, where, and how of the mis­con­duct charged,” ade­quate for this stage of the plead­ing.

In Salov’s Favor

The Judge did, how­ever, reject Kumar’s claims for breach of con­tract (find­ing no con­tract existed) and found her claim of breach of covenant of good faith and fair deal­ing insuf­fi­ciently pleaded and there­fore granted Salov’s motion to dis­miss these claims. No per­mis­sion to amend these claims was granted. Salov’s request for judi­cial notice of a Filippo Berio Extra Virgin Olive Oil bot­tle label was granted and Salov was given until February 24 to file a response. Check back for updates.



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