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 (u.s. Dist. Ct., 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 purely mechanical extraction process.”The court also disagreed with the defendant that the plaintiffs could not prevail on a breach of express warranty claim because they failed to provide pre-litigation notice. New Jersey law does not impose such a requirement, and, in any event, the civil complaint satisfies any notice requirement.

The court also disagreed that the plaintiffs had not provided sufficient damages evidence. New York and New Jersey law apparently place the  burden of ascertaining the amount of damages, “when the existence of damage is known but its extent is opaque, upon the alleged wrongdoer, here Kangadis.” In the court’s view, the plaintiffs had met their burden by intro- ducing expert reports with several models for calculating damages based on three relevant numbers—the average price of 100 percent pure olive oil, the average price of pomace advertised as such and the average price of Capatriti.