Wednesday, September 12, 2018
Ninth Circuit Affirms Approval of Settlement in Class Action Over Labeling of Olive Oil
By a MetNews Staff Writer
Flippo Berio olive oil no longer proclaims “Imported From Italy” on the labels, under the settlement of a class action. The District Court’s approval of the settlement was affirmed yesterday by the Ninth U.S. Circuit Court of Appeals. The product is shipped from Italy but is not comprised of oil pressed in that nation.
The Ninth U.S. Circuit Court of Appeals yesterday rejected a class member’s challenge to the settlement of an action under which purchasers of Flippo Berio olive oil—which proclaimed on their labels, “Imported From Italy”—-will receive, subject to provisos, 50 cents for every bottle they purchased between May 23, 2010 and June 30, 2015.
The settlement came after two years of litigation and the production of about 30,000 pages of documents. According to the complaint filed by consumer Rohini Kumar on May 23, 2014 against the importer of the olive oil, Salov North America Corp and Italfoods, Inc.:
“[B]y stating ‘IMPORTED FROM ITALY’ Defendants lead consumers to believe that these Products are made from Italian olives or. at a minimum, are pressed in Italy. This is false and deceptive. In fact, none of the Mock Italian Products are made from olives grown in Italy. Nor are they pressed in Italy. Rather, the Mock Italian Products are made from oil pressed in many different countries, trucked or shipped to Italy, mixed with oil from other countries, bottled and then exported.”
Salov’s defense was that “imported” meant “shipped out of.”
Under the settlement, the defendant agreed to pay a minimum of $2 to any household where members bought from one to four bottles during the specified period, up to $5 per household for up to 10 purchases, with no proof of purchase necessary. Proof of payment was required for those claiming 50 cents per bottle where more than 10 bottles were bought.
The period for filing claims ended last year.
Injunctive relief was also part of the settlement. The stipulation provides:
“Defendant agrees not to use the phrases ‘Imported from Italy,’ ‘Made in Italy,’ ‘Product of Italy,’ or any other phrase on the label of a Product sold in the United States suggesting that olive oils in a Product originate from olives grown in Italy, and instead to use the designation ‘Imported’ on the front panel, until at least three years after the Effective Date, unless the Product so labeled is composed entirely of oil extracted in Italy from olives grown in Italy. Defendant is not required to remove or recall any Product that may remain in the marketplace that bears the designation ‘Imported from Italy.’ “
Yesterday’s Ninth Circuit decision arises from the protest of a non-participating class member, Theodore Frank, that the settlement was inadequate. In a memorandum decision, approval of the settlement by District Court Judge Yvonne Gonzalez Rogers of the Northern District of California was affirmed.
The opinion says:
“The district court considered the strength of the plaintiffs’ case and the risk involved with further litigation, noting that Salov North America Corp. had a legitimate defense and that this ‘was [not] the strongest case [she] ha[d] ever seen.’ The district court also noted that proceeding to trial would be costly given the need for expert testimony, and that the best potential outcome at trial would not exceed the recovery per bottle offered by the settlement. Further, the court recognized that the litigation was ‘hard fought’ and that class counsel reached an ‘excellent result’ for the class, including achieving the class’s non-monetary goal of ‘get[ting] the defendants to improve their practices.’ Because there is no ‘strong showing that the district court’s decision was a clear abuse of discretion,’ we affirm.”
The case is Frank v. Salov North America Corp., No. 17-16405.
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