Olive Oil Buyers Win Class Cert. In Misleading Labels Suit

Law360
Bonnie Eslinger
Aug 24, 2017

A California federal judge Thursday granted certification to two consumer classes accusing olive oil maker Deoleo USA Inc. of deceptive labeling, saying proposed members share common concerns about "imported from Italy" claims when olives are sourced from elsewhere, and whether "extra virgin" standards are ensured.

Thursday's decision is a win for lead plaintiff Scott Koller and his attorneys from the law firms of Gutride Safier LLP and Tycko & Zavareei LLP, which recently settled similar false advertising claims related to labels on Filippo Berio olive oil. In the current case, Koller claims he was misled into paying a premium for Deoleo's olive oil products, including the Bertolli and Carapelli brands, specifically those marked "extra virgin" or "imported from Italy."

In his Thursday order, U.S. District Judge Richard Seeborg noted that Koller contends that the Deoleo's products marketed as "extra virgin" don't always meet that quality standard when bottled, and they sometimes degrade before the "best by" date.

"Deoleo insists a putative class member only has claims if the specific bottle he or she purchased no longer met [extra-virgin olive oil] standards, and as a result, the liability inquiry is inherently individual and not subject to class-wide resolution," the judge wrote.

But Judge Seeborg said the issue is not whether specific bottles of olive oil bought by the class members still met extra-virgin standards when purchased.

"That clearly would not be adjudicatable on a class-wide basis," he said. "The question is whether Deoleo has breached any legal obligation to take reasonable steps to ensure its oils meet the standards at least until the 'best by' date."

That question can be subject to class-wide determination, the court found.

With regard to the "imported from Italy," class, the judge noted that the claims were similar to those in another case, Kumar v. Salov North America Corp., brought by the class counsel, also in the Northern District of California.

In that case, Salov argued that there was no evidence consumers would have understood the phrase to mean that the bottle contained 100 percent Italian olive oil. In granting class certification in that case, the court said Salov didn't offer evidence that consumers would not understand the phrase "imported from Italy" to mean that the oil is Italian.

"Although Kumar is not binding authority, there is no persuasive basis upon which it can be distinguished, and no reason to reject its well-reasoned conclusion," Judge Seeborg wrote in his Med Foods ruling.

In March, Deoleo urged the court not to certify the two classes of consumers accusing the olive oil maker of deceptive labeling, saying the members of the proposed classes wouldn't have issues in common.

Koller hadn't shown evidence that olive oil consumers depend on, much less consider, the "imported from Italy" label in their purchasing decisions, Deoleo said.

Deoleo also took aim at Koller's extra-virgin olive oil class, saying the commonality requirement hinges on his ability to show that the company's shipping and storage practices caused the olive oil to degrade before its best by date, according to Deoleo.

Koller's own expert concedes that a wide variety of environmental conditions can cause olive oil to degrade, the company said.

"Every lot of olive oil is different, subjected to different conditions based on where and by whom the olives are grown, the time of year it is manufactured, how it is shipped, and ultimately the storage conditions of the retailers who sell it and the consumers who purchase it," Deoleo said.

The case dates to May 2014, when Koller claimed he was misled into paying a premium for Deoleo's olive oil products. Some of the olive oil, he alleges, is actually mixed with refined oil, and the bottle is insufficient to protect it from heat and sunlight damage, causing the chemicals to break down and not stay extra virgin for long, if at all.

Koller's claims include violations of multiple California consumer protection laws and have survived one attempt by Deoleo to dismiss in January 2015. Representatives for Deoleo were not immediately reachable for comment on Thursday.

An attorney for Koller and the class, Adam Gutride of Gutride Safier, said he and his client were pleased that the court has certified the class.

"For too long, Bertolli claimed its blended olive oil was 'from Italy' even when it was from Africa, South America and elsewhere. And it has marketed its oil as 'extra virgin' without taking adequate precautions to ensure oil quality," wrote Gutride in an email. "We look forward to obtaining refunds for all purchasers."

Deoleo USA is represented by Jeffrey B. Margulies, Stephanie A. Stroup and Andy Guo of Norton Rose Fulbright.

Koller is represented by Adam J. Gutride, Seth A. Safier and Kristen G. Simplicio of Gutride Safier LLP, and Hassan A. Zavareei and Jeffrey D. Kaliel of Tycko & Zavareei LLP.

The case is Koller v. Med Foods Inc., et al., case number 3:14-cv-02400, in the U.S. District Court for the Northern District of California.

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