superior court for the district of columbia civil …bertolli and safeway select evoo that does not...
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SUPERIOR COURT FOR THE DISTRICT OF COLUMBIA CIVIL DIVISION
DEAN MOSTOFI,
Plaintiff, v.
SAFEWAY, INC.
Defendant.
Case No.: 2011 CA 000367 B Judge Erik P. Christian Next Event: November 16, 2012 (Summary Judgment Motions Due)
SECOND AMENDED COMPLAINT
1. Dean Mostofi, on behalf of himself and for the benefit of the General Public of
the District of Columbia pursuant to District of Columbia Code §28-3905(k)(l), brings this action
against Defendant, Safeway, Inc. (“Safeway”), and states as follows:
PRELIMINARY STATEMENT
2. Defendant is a retailer who sells Bertolli Extra Virgin Olive Oil (“EVOO”)
products in the District of Columbia. Defendant also manufactures and distributes its own brand
of Safeway Select EVOO, which it sells in the District of Columbia. Defendant has been
misleading and defrauding D.C. Consumers for years by representing that the olive oil they sell
is “extra virgin,” when in fact it is not “extra virgin” or when Defendant has an insufficient basis
to represent that the olive oil it sells is actually “extra virgin.” Defendant has also been
misleading and defrauding D.C. Consumers by selling olive oil that claims to be “imported from
Italy,” when in fact the product does not originate in Italy.
3. In this action, Plaintiff seeks to end Defendant’s scheme of selling mislabeled
EVOO to consumers in the District of Columbia (“D.C. Consumers”). Plaintiff seeks to recover
damages for himself and for D.C. Consumers and to enjoin Defendant from continuing with its
false, deceptive and unfair marketing and sale of olive oil that is not extra virgin or not
FiledD.C. Superior Court10/23/2012 14:07PMClerk of the Court
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confirmed by Safeway to be extra virgin in violation of the District of Columbia Consumer
Protection Procedures Act (“DCPPA”). Plaintiff also seeks to enjoin Safeway from selling
Bertolli and Safeway Select EVOO that does not comply with its label claim of “Imported from
Italy.”
4. “Extra virgin” is the top grade of olive oil, according to standards established by
numerous organizations, including the California Olive Oil Council (“COOC”), the International
Olive Council (“IOC”) and the United States Department of Agriculture (“USDA”). In addition
to establishing chemistry standards for extra virgin olive oil, each of these entities require EVOO
to meet a sensory standard—the oil must have zero sensory defects and greater than zero
fruitiness.
5. Certain representations in the marketplace certify that a retailer, supplier or
manufacturer has taken steps to ensure a product’s quality. For example, when gasoline is
advertised as “91 Octane,” that representation certifies that the manufacturer or retailer is certain
the gasoline actually has that characteristic at the time it is purchased by a consumer. Similarly,
the representation “extra virgin” certifies that the olive oil has certain quality, chemical
composition, and taste characteristics at the time it is purchased by a consumer.
6. Consumers expect and believe that Extra Virgin Olive Oil is superior to ordinary
olive oil in numerous respects, including its health benefits, quality, and taste.
7. According to a study by UC Davis, samples of Bertolli and Safeway Select failed
to meet widely recognized standards for EVOO. Further, Plaintiff has commissioned his own
testing of Bertolli and Safeway Select EVOO purchased by him from Safeway, which also
indicates that Bertolli and Safeway Select brands fail to meet standards for EVOO.
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8. Defendant deceives consumers by claiming that the olive oil they are
manufacturing and selling is assured to be of sufficient quality to call the product extra virgin
olive oil, when in fact it is not extra virgin and when Defendant has an insufficient basis to
represent that the olive oil it sells and/or manufactures is actually “extra virgin.” In addition,
Defendant sells EVOO that is not packaged in a manner sufficient to ensure that the product,
whose quality can deteriorate with time and exposure to light and become rancid, is sold to
consumers at a level that still constitutes the product having the quality worthy of the
classification of extra virgin. Lastly, claims by Defendant that the oils are “imported from Italy”
are false and misleading.
9. In reality, at least a significant percentage of Defendant’s EVOO products do not
warrant the high standard of “extra virgin” and, therefore, are not worthy of the premium price
charged. Though Defendant’s olive oils do not meet the standards for being “extra virgin,” nor
are they actually imported from or originated in Italy, Defendant nevertheless promotes and
prices its products as such to unwitting customers.
10. When D.C. Consumers like Plaintiff purchase Bertolli and Safeway Select brand
EVOO, they expect to purchase, with certainty, a bottle of truly extra virgin olive oil. Instead,
Safeway’s policies and practices ensure that every purchase of Bertolli and Safeway Select brand
EVOO comes with a very high likelihood that the contents of a bottle are not truly “extra virgin.”
Nonetheless, Safeway represents and prices its Bertolli and Safeway Select brand EVOO as if
there is no risk to consumers of receiving an inferior product. This results in an unjust
enrichment on the part of Defendant.
THE PARTIES
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11. Plaintiff Dean Mostofi is an individual consumer and a resident of the state of
Maryland, who, for his personal consumption, regularly purchases goods and services in the
District of Columbia and from merchants located therein. Mostofi, over the past three years, has
purchased what he believed to be “Extra Virgin” and/or “imported from Italy” EVOO from
Safeway locations in the District of Columbia.
12. Defendant Safeway is incorporated in the state of California and is headquartered
at 5918 Stoneridge Mall Road, Pleasanton, CA. Defendant is a merchant conducting business in
the District of Columbia through its retail stores, one of which is located at 1855 Wisconsin
Avenue Northwest, Washington, DC. Safeway markets, manufactures, distributes and sells
consumer goods, including Bertolli and Safeway Select EVOO, to D.C. Consumers.
JURISDICTION AND VENUE
13. This Court has jurisdiction over this action pursuant to the D.C. Code § 11-921
and § 28-3905(k)(1).
14. This Court has personal jurisdiction over Defendant pursuant to D.C. Code §13-
422, D.C. Code §13-423 and/or D.C. Code §13-334.
15. This Court has jurisdiction over Defendant because it is authorized to conduct,
and in fact does conduct, substantial business in the District of Columbia.
16. Venue is proper in the District of Columbia as the acts upon which this action is
based occurred in the District of Columbia. Plaintiff and D.C. Consumers purchased products
marketed, distributed, manufactured and sold by Defendant in the District of Columbia, which
were marketed and sold in violation of the District of Columbia’s laws, and Plaintiff and D.C.
Consumers were thereby injured and subjected to irreparable harm in this venue.
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17. Defendant received substantial compensation and profits from sales of mislabeled
EVOO in the District of Columbia. Thus, Defendant’s liability arose and continues in the
District of Columbia.
LEGAL FRAMEWORK
18. All conditions precedent to the filing of this case have been performed, have
occurred, or have been satisfied.
19. The District of Columbia Consumer Protection Procedures Act (“CPPA”), D.C.
Code § 28-3901 et seq., prohibits unlawful trade practices. The prohibited trade practices
include, in part, representing “that goods or services have a source, sponsorship, approval,
certification, accessories, characteristics, ingredients, uses, benefits or qualities that they do not
have[.]” D.C. Code § 28-3904(a). More generally, the CPPA prohibits misrepresentation that
goods or services are of particular standard or quality, a misrepresentation of a material fact
which has a tendency to mislead, a failure to state a material fact if such failure tends to mislead,
the offering of goods or services without the intent to sell them as offered, the use of deceptive
representations or designations of geographic origin in connection with goods or services, and
misrepresentation that the subject of a transaction has been supplied in accordance with a
previous representation. D.C. Code § 28-3904 (d) (e),(f),(h), (t), and (u).
20. Additionally, “the CPPA’s extensive enforcement mechanisms apply not only to
the unlawful trade practices proscribed by § 28-3904, but to all other statutory and common law
prohibitions.” Osbourne v. Capital City Mortgage Corp., 727 A.2d 322, 325-26 (D.C. 1999).
21. The CPPA allows for treble damages, or $1,500 per violation, whichever is
greater, as well as reasonable attorney’s fees, punitive damages, an injunction against the
unlawful trade practice, “additional relief as may be necessary to restore the consumer money or
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property…which may have been acquired by means of the unlawful trade practice,” and “any
other relief the court deems proper.” D.C. Code § 28-3905(k)(1).
22. Plaintiff brings this action on behalf of himself and as a Representative Plaintiff
acting for the interests of the general public of the District of Columbia, seeking relief from
Defendant's use of trade practices in violation of laws of the District of Columbia, pursuant to
D.C. Code § 28-3905(k)(1).
THE MOSTOFI PURCHASES
22. Plaintiff purchased Bertolli and Safeway Select products within the District of
Columbia from Defendant, based on his belief that the products met the standard of being called
“extra virgin” and were in fact imported from or originated in Italy. These beliefs were based on
the explicit representations on the bottles that the products were Extra Virgin and a product of
Italy.
23. For example, Plaintiff purchased a bottle of Bertolli from the Safeway store at
1855 Wisconsin Avenue NW Washington, DC on January 8, 2011 based upon the above
representations.
24. For example, Plaintiff purchased a bottle of Safeway Select from the Safeway
store at 1855 Wisconsin Avenue NW Washington, DC on January 8, 2011, based upon the above
representations.
25. Plaintiff again purchased a bottle of Bertolli from the Safeway store at 1855
Wisconsin Avenue NW Washington, DC on August 21, 2011 based upon the above
representations.
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26. Plaintiff again purchased a bottle of Safeway Select from the Safeway store at
1855 Wisconsin Avenue NW Washington, DC on August 21, 2011 based upon the above
representations.
27. Plaintiff again purchased bottles of Bertolli from the Safeway store at 1855
Wisconsin Avenue NW Washington, DC on October 21, 2011 based upon the above
representations.
28. Plaintiff again purchased bottles of Safeway Select from the Safeway store at
1855 Wisconsin Avenue NW Washington, DC on October 21, 2011 based upon the above
representations.
29. The Bertolli bottles referenced above bore a label which stated: “Imported From
Italy. Extra Virgin Olive Oil. First Cold Pressing.”
30. In fact, the EVOO contained in the Bertolli bottles was neither “extra virgin” nor
“imported from Italy.”
31. The Safeway Select bottles referenced above bore a label which stated: “Extra
Virgin Olive Oil. Imported From Italy. Packed In Italy.”
32. In fact, the EVOO contained in the Safeway Select bottles was neither “extra
virgin” nor “imported from Italy.”
THE IOC AND USDA STANDARDS
33. Extra Virgin Olive Oil sits at the pinnacle of the olive oil industry and it is
considered the gold standard. The term Extra Virgin is defined by the IOC, the USDA, and the
state of California, the United States’ largest domestic olive oil producer.
34. Since Defendant is an experienced retailer and manufacturer of EVOO and other
food products, it clearly knows what the term “Extra Virgin” means.
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35. The IOC specifically defines Extra Virgin Olive Oil as: virgin olive oil which has
a free acidity, expressed as oleic acid, of not more than 0.8 grams per 100 grams, and which
meets certain sensory standards.
36. The IOC utilizes a protocol for its sensory testing which includes, but is not
limited to, perception, sensation, and sensitivity.
37. Since 1948, the USDA has regulated olive oil grades and utilized both chemical
and sensory standards to determine quality.
38. USDA standards define “U.S. Extra Virgin Olive Oil” as: virgin olive oil which
has excellent flavor and odor (median of defects equal to zero and median of fruitiness greater
than zero) and a free fatty acid content, expressed as oleic acid, of not more than 0.8 grams per
100 grams, and meets the additional requirements as outlined in the United States Standards for
Grades of Olive Oil and Olive-Pomace Oil, 75 FR 22363 (April 28 2010), which sets forth the
criteria to ascertain the grades of the oil using both chemical and sensory standards.
39. The state of California defines “Extra Virgin Olive Oil” as: virgin olive oil which
has a free acidity, expressed as oleic acid, of not more than 0.8 grams per 100 grams of oil, has a
peroxide value of not more than 20 mill equivalent peroxide oxygen per kilogram of oil and
would meet sensory standards of extra virgin olive oil as determined by a state panel certified by
the International Olive Oil Council, or, if the International Olive Oil Council ceases to certify
taste panels, would meet the sensory standards of a taste panel that is operated by the University
of California or California State University according to guidelines adopted by the International
Olive Oil Council as of 2007.
THE 2010 U.C. DAVIS STUDY AND 2011 FOLLOW-UP REPORT
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40. A June 2010 report (the “Report”) by the University of California at Davis’ Olive
Oil Center stated that “[t]ests indicate that imported ‘extra virgin’ olive oil often fails
international and USDA standards,” and confirmed the extent of the industry-wide deception
carried out against D.C. Consumers.
41. The Report evaluated the oils based on standards and testing methods established
by the IOC and USDA, as well as several newer standards and testing methods adopted in
Germany and Australia.
42. The results of the tests indicated that the “samples of imported olive oil labeled as
‘extra virgin,’ and sold at retail locations in California, often did not meet international and US
standards. Sensory tests showed that these failed samples had defective flavors such as rancid,
fusty, and musty.”
43. More specifically, the Report made the following findings:
69 percent of imported olive oil samples and 10 percent of California olive oil samples labeled as extra virgin olive oil failed to meet the IOC/USDA sensory (organoleptic) standards for extra virgin olive oil. The Australian sensory panel found that each of these samples contained a median of up to 3.5 sensory defects such as rancid, fusty, and musty and were classified at the lower grade of “virgin.” Sensory defects are indicators that these samples are oxidized, of poor quality, and/or adulterated with cheaper refined oils. The presence of any sensory defect precludes an olive oil from meeting the standard required for “extra virgin” olive oil.
31 percent of the imported samples that failed the sensory standards also failed the IOC/USDA standards for UV absorbance of oxidation products (K232 and K268), which indicates that these samples were oxidized and/or were of poor quality.
83 percent of the imported samples that failed the IOC/USDA sensory standards also failed the German/Australian DAGs standard. Two additional imported samples that met the IOC/USDA sensory standard for extra virgin failed the DAGs standard. An elevated level of DAGs indicates that the samples were oxidized, adulterated with cheaper refined oils, and/or of poor quality.
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44. The Report went on to note that the “samples failed extra virgin standards for
reasons that include one or more of the following:
oxidation by exposure to elevated temperatures, light, and/or aging; adulteration with cheaper refined olive oil; poor quality oil made from damaged and overripe olives, processing flaws,
and/or improper oil storage.”
45. With specific regard to Bertolli tested, the Report found that all three samples
tested by UC Davis failed the chemical analysis, and that all three of the samples tested by UC
Davis failed the sensory assessment as well.
46. With specific regard to Safeway Select tested, the Report found that one of the
three samples tested by UC Davis failed the chemical analysis, and two of the three samples
tested by UC Davis failed the sensory assessment.
47. The results were a combined effort of research conducted by scientists at UC
Davis and at the Australian Oils Research Laboratory, a governmental research center accredited
by the International Olive Council in Madrid, whose product standards the new U.S. Department
of Agriculture rules are generally based upon.1
48. In April, 2011, UC Davis released a follow-up study. UC Davis again worked
with the Australian Oils Research Laboratory to evaluate the quality of extra virgin olive oils
sold on retail shelves in California. UC Davis and the Australian laboratory evaluated the oils
based on standards and testing methods established by the IOC.
49. Additionally, the two laboratories analyzed the oils using two testing methods
adopted in Germany and Australia. The Australian Olive Association adopted these tests to help
1 Los Angeles Times article entitled “UC Davis researchers report that most common brands sold in California are mislabeled, which can cost consumers money and worse,” by P.J. Huffstutter and Kristena Hansen, dated July 15, 2010.
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detect extra virgin olive oils that were old and oxidized and not up to extra virgin olive oil
standards.
50. The follow-up study found that based upon 18 samples of Bertolli EVOO, 11% of
the samples failed at least one chemical testing that identifies EVOO, and 72% failed the sensory
assessment performed by UC Davis.
51. With the follow-up study and The Report, the UC Davis research team analyzed a
total of 186 extra virgin olive oil samples in the span of one year. In contrast, the IOC’s quality
control program assessed an average of 116 extra virgin olive oil samples per year purchased in
the entire United States and Canada in the 2008-2009 period.
52. Despite these findings, Defendant nonetheless has continued selling mislabeled or
adulterated EVOO, or olive oil that Defendant has an insufficient basis to represent was actually
“extra virgin.”
53. Defendant knows, or should know, that the Bertolli and Safeway Select brand
EVOO it sells and manufactures, and which is labeled as “extra virgin” does not meet the state,
national or international standards for “extra virgin.”
PLAINTIFF’S INDEPENDENT TESTING OF EVOO PURCHASED IN D.C.
54. Plaintiff tasted the contents of the bottles of EVOO he purchased on January 8,
2011 and August 21, 2011 from Safeway and immediately noticed that the oil tasted unlike true
EVOO.
55. In addition, in October, 2011, Plaintiff commissioned Nancy Ellen Ash to
convene a sensory tasting panel to evaluate samples of Bertolli and Safeway Select EVOO
purchased at Safeway. Ms. Ash has participated on olive oil taste panels since 1998, and in 2005
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received certification as a taste panel supervisor by the Italian organization Organizzazione
Nazionale Assaggiatori Olio Di Oliva (ONAOO).
56. Ms. Ash conducted an olive oil sensory evaluation using a panel of trained tasters
and following the organoleptic assessment procedures established by the IOC.
57. All of the tasters who participated in the evaluation were also members of the
California Olive Oil Council (COOC) Taste Panel and/or the University of California at Davis
Olive Center Taste Panel, and therefore had significant experience with EVOO tasting and
evaluation.
58. IOC Taste Panel procedures were followed during the assessment. For example,
Oils were served in blue tasting glasses, each covered by a watch‐glass. Oils were warmed using a heating pad and served at the required temperature
(between 78.8⁰F to 86⁰F). Oils were presented in random order. Individual scores were reported on IOC assessment score sheets using a scale
of zero to 10. Panelists worked in a quiet room, separated from each other by white panels. Green Granny Smith apple slices and still and sparkling water were available
for panelists to use to cleanse their palates in between samples. No information about the client or the samples was imparted to the panelists
either before or after the session.
59. The panel found that “[t]he primary attribute for [the Bertolli EVOO purchased
from Safeway in the District of Columbia] sample was Rancid with the CVr below the 20%
threshold.”
60. Therefore, the Bertolli EVOO did not qualify as Extra Virgin Olive Oil. Instead,
under the IOC standards it qualified only as Virgin Olive Oil. Under the USDA standards it
qualified only as US Virgin Olive Oil.
61. The panel found that the Safeway Select EVOO purchased in the District of
Columbia “was a distinctly defective sample with the primary attribute of Rancid; all tasters
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perceived this negative attribute and the CVr was below the 20% threshold. Ten of the tasters
also perceived the Fusty/Muddy Sediment defect while eight tasters identified an additional
defect of Musty.”
62. Therefore, the Safeway Select EVOO did not qualify as Extra Virgin Olive Oil.
Instead, under the IOC standards it qualified only as Ordinary Virgin Olive Oil. Under the
USDA standards it qualified only as Lampante Virgin Olive Oil—the lowest classification of
olive oil possible.
63. Thus, Plaintiff’s independent testing confirms the results of the UC Davis reports
and of Mr. Mostofi’s personal testing.
64. Plaintiff’s independent testing also indicates that the problem is widespread in
D.C. Plaintiff’s independent testing indicates that other bottles of Bertolli and Safeway Select
EVOO sold in D.C. (at other stores) contain olive oil that is not “extra virgin.”
CLEAR BOTTLES ENSURE THE PRODUCT WILL DEGRADE
65. It is a well known fact that Extra Virgin Olive Oil must be stored in a cool and
dark environment. Sunlight or any bright light can activate chemical reactions inside the oil and
will cause the oil to degenerate into undesirable chemical products. This ultimately causes total
destruction of the Extra Virgin Olive Oil. In order to prevent the inevitable degradation of
quality caused by light, many quality EVOO products are packed in dark-tinted glass bottles or
other light-protective containers.
66. Bertolli and Safeway Select EVOO is packed in clear bottles.
67. Defendant does not adequately protect EVOO sold in its stores from light or other
degrading influences.
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68. Moreover, upon information and belief, Defendant does not have an adequate
policy for removing EVOO from store shelves after it has become degraded by light or other
conditions.
69. According to a 2007 study by researchers at the National Agricultural Research
Foundation, Institute of Technology of Agricultural Products, Greece and the Higher Technical
Educational School, Department of Food Science, Thermi, Thessaloniki, Greece, olive oil
exposed to light had significantly lower tocopherol, carotenoid and chlorophyll contents than did
the same oils kept in the dark. Overall, the results obtained showed that the shelf life of the oils
exposed to light is shorter than that of oils kept in the dark, and that after only 2 months of
exposure to light the oils examined could no longer be considered as “extra virgin.”
70. Notwithstanding the foregoing facts, which are well-known by olive oil
manufacturers and retailers, Defendant makes no effort to protect Bertolli and Safeway Select
olive oil from exposure to light. As such, by the time Bertolli, Pompeian, and Safeway Select
olive oil is sold to D.C. Consumers, it cannot be considered Extra Virgin Olive Oil, yet it is
falsely labeled and priced as such.
71. Therefore, Defendant violates the DCCPA and the U.C.C. D.C. Code (§28-2-
314), because its olive oil is not “adequately contained, packaged, and labeled[.]”
72. Defendant also makes false representations in the form of the “best before” date
placed on the bottles. In fact EVOO packaged in clear bottles degrades more quickly than
indicated by the “best before” date placed on bottles of Defendant’s EVOO.
STANDARDIZED INDUSTRY WRONGDOING
73. The detection of counterfeit olive oils is often complicated. No single test can
accomplish the task. The two primary categories of testing are chemical and sensory.
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74. The accepted sensory standards require that the oils have zero defects and greater
than zero fruitiness. For years, trained olive oil tasters who have served on recognized sensory
panels have reported that much of the olive oil sold in the United States as “Extra Virgin” does
not meet this standard.
75. Myriad media reports discuss widespread problems in the olive oil industry.
76. In 2000, the Canadian Food Inspection Agency tested 100 imported oils and
found all but 20 were adulterated with other vegetable oils.
77. In 2003, the Italian Agricultural Ministry brought more than 1,000 cases of fraud,
involving the mislabeling of olive oil to court.
78. In 2004, the New York Times reported that one of Italy’s most famous brands,
which was bottled in Lucca in Tuscany, actually contained oil from Spain, Greece and Tunisia.
79. In 2006, US Federal Marshals in New Jersey seized 65,000 liters of what was
supposedly extra virgin olive oil. The oil was found to be almost entirely soybean oil.
80. In 2007, the President of Filippo Berio, one of Italy’s leading brands of “Tuscan”
oil admitted that only about 20% of the olives they used came from Italy.
81. In 2007, American supermarket chain Shoprite (U.S) recalled certain olive oils
after it was discovered that they were counterfeit.
82. In 2008, the Daily Telegraph published an article entitled “Italian Police Crack
Down on Olive Oil fraud.” The newspaper reported that 400 police officers had arrested 23
people and confiscated 85 farms for importing foreign oils that were then packaged and re-
exported as Italian Extra Virgin Olive Oil.
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83. In 2009 USA Today reported that, Martin Stutsman, a Consumer Safety Officer at
the Federal Food and Drug Administration (FDA) told USA Today that Extra Virgin Olive Oil
was “one of the most frequently counterfeited foods.”
84. In 2011, the author, Tom Mueller, published a book entitled Extra Virginity,
which demonstrated brazen fraud in the olive oil industry, and which grew out of an article titled
“Slippery Business” that Mr. Mueller wrote about olive oil in 2007 for The New Yorker. The
book details how EVOO dealers along the supply chain frequently adulterate olive oil with low-
grade vegetable oils and add artificial coloring. Mr. Mueller cites an Italian producer who
suggests that 50 percent of the olive oil sold in America is, to some degree, fraudulent.
DEFENDANT HAS AN INSUFFICIENT BASIS TO CLAIM THE OLIVE OIL IT IS SELLING IS “EXTRA VIRGIN”
85. Defendant manufactures and sells Safeway Select EVOO and it sells Bertolli
olive oil products, all of which are distributed on a nationwide basis. Upon information and
belief, products manufactured, sold and distributed in District of Columbia are identical to
products manufactured, sold and distributed throughout the United States.
86. Defendant has an insufficient basis to represent that the olive oil it sells is actually
“extra virgin.”
87. Because the term “extra virgin” is a term that has meaning to consumers and to
competitors, the term is only properly attached to products that are in fact extra virgin.
Defendant’s sale of products which are not “extra virgin” and for which an insufficient basis
exists for Defendant to represent that the products are actually “extra virgin” is a deceptive
business practice prohibited by the DCPPA.
88. Bertolli and Safeway Select EVOO did not have adequate substantiation for the
labeling and marketing claims made.
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THE “IMPORTED FROM ITALY” LABEL CLAIMS ARE FALSE AND MISLEADING
89. Part 134, Chapter 1 of Title 19 of the Code of Federal Regulations sets forth
regulations implementing the country of origin marking requirements and exceptions of section
304 of the Tariff Act of 1930, as amended (19 U.S.C. 1304), together with certain marking
provisions of the Harmonized Tariff Schedule of the United States (19 U.S.C. 1202).
90. 19 C.F.R. § 134.46 requires that:
In any case in which…the name of any foreign country or locality other than the country or locality in which the article was manufactured or produced appear on an imported article or its container, and those words, letters or names may mislead or deceive the ultimate purchaser as to the actual country of origin of the article, there shall appear legibly and permanently in close proximity to such words, letters or name, and in at least a comparable size, the name of the country of origin preceded by “Made in,” “Product of,” or other words of similar meaning. 91. Bertolli and Safeway Select EVOO violates 19 C.F.R. § 134.46 when they state
on their labels “imported from Italy” because those olive oils are in fact the product of countries
other than Italy.
92. Bertolli EVOO is marketed with labels on the front in large bold font that states
“Imported from Italy.”
93. On the back of the package of Bertolli, in much smaller font, the label indicates
that the oil is not actually from Italy. Instead it is from numerous other countries, and is only
packaged in Italy: “Product contains select high quality extra virgin olive oils from the countries
indicated by the letters below. I=Italy, GR=Greece, E=Spain, TU=Tunisia, MA=Morocco,
CL=Chile, AG=Argentina, AU=Australia.”
94. Safeway Select EVOO is marketed with labels on the side in large font that states
“Imported From Italy.”
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95. On the back of the package of Safeway Select bottles, in much smaller font, the
label indicates that the oil is not actually from Italy, instead it is from numerous other countries,
and is only packaged in Italy.
96. U.S. Customs and Border Protection (“CBP”), Department of Homeland Security,
has consistently held that blending a product from one country with the same product of another
country does not constitute a “substantial transformation” which would justify a “country of
origin” claim based on the manufacturing location of a certain product. With specific regard to
olive oil, in HQ 560944, dated April 27, 1998, CBP determined that the blending of Spanish
olive oil with Italian olive oil in Italy does not result in a “substantial transformation” of the
Spanish product that would allow it to become an Italian product.
97. The country of origin claims made on Bertolli and Safeway Select bottles mislead
D.C. Consumers, including Plaintiff, by prominently making an Italian origin claim on the front
of the EVOO bottle, while placing in small print on the back of the bottle information as to the
actual non-Italian origin of the olive oil.
PLAINTIFF AND D.C. CONSUMERS HAVE BEEN DAMAGED
98. Though Bertolli and Safeway Select EVOO does not meet the standard of “extra
virgin” and Defendant has an insufficient basis to represent that the olive oil it sells actually is
“extra virgin,” and does not in fact originate in Italy, Defendant continues to market these
products with advertising and labeling that represents the products to have these qualities.
99. D.C. Consumers have been duped by Defendant and they have not received the
benefit of their bargains. Plaintiff and D.C. Consumers have sought to purchase real Extra
Virgin Olive Oil but instead have received lesser quality olive oil falsely labeled as EVOO, or
olive oil that Defendant has an insufficient basis to represent is actually “extra virgin.” Plaintiff
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and D.C. Consumers also sought to purchase EVOO that originated in Italy, but instead received
EVOO that did not.
100. By making these false claims, Defendant has convinced unwary consumers to pay
a high price for a product which is lesser quality olive oil falsely labeled and priced as EVOO, or
is olive oil that Defendant has an insufficient basis to represent is actually “extra virgin.” As
evidenced by the previously-cited Los Angeles Times article, so-called “extra virgin” olive oil is
sold for almost 80% more than it is worth.
101. Defendant prices EVOO at a higher price point than Virgin or other grades of
olive oil. The false representations made with respect to Bertolli and Safeway Select EVOO
have allowed Defendant to achieve higher sales and profits than it would have otherwise
achieved without the aid of such false or unsupported representations.
102. D.C. Consumers like Plaintiff have been willing to pay the higher price for Extra
Virgin Olive Oil and Italian-origin EVOO because they believe that such EVOO has health
benefits, superior taste and quality, and other benefits.
103. When D.C. Consumers like Plaintiff purchase Bertolli and Safeway Select brand
EVOO, they expect to purchase, with certainty, a bottle of truly extra virgin olive oil. Instead,
Safeway’s policies and practices ensure that every purchase of Bertolliand Safeway Select brand
EVOO comes with a very high risk that the contents of a bottle are not truly “Extra virgin.” In
other words, every purchase of Bertolli and Safeway Select brand EVOO comes with significant
risk, but Safeway represents and prices the Bertolli and Safeway Select brand EVOO it sells as if
there is no risk to consumers of receiving an inferior product.
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104. Defendant’s practices, as alleged in this Complaint, constitute unfair or deceptive
acts or practices, and the making of false advertisements, in or affecting commerce, in violation
of Sections 5(a) and 12 of the Federal Trade Commission Act.
105. Defendant’s display and offer for sale of mislabeled, adulterated, or improperly
tested olive oil as discussed in this Complaint is misleading and likely to deceive.
106. Defendant’s conduct violates public policy.
107. Defendant’s conduct constitutes violations of the laws asserted herein.
108. Defendant has engaged in false and deceptive trade practices.
109. Plaintiff and D.C. Consumers have sustained monetary loss because they have
purchased mislabeled or adulterated olive oil, or olive oil that Defendant has an insufficient basis
to represent is actually “extra virgin” in reliance on Defendant’s false and misleading
representations.
110. Plaintiff and D.C. Consumers are entitled to declaratory and injunctive relief.
111. Plaintiff and D.C. Consumers have suffered and may continue to suffer actual and
present economic damages as a result of Defendant’s actions because they have expended funds
to buy mislabeled/adulterated olive oil products at premium prices from Defendant.
112. This case is actionable pursuant to D.C. Code §28-3905(k)(1).
113. Defendant’s conduct violated D.C. Code § 28-3904.
114. Defendant’s conduct violated D.C. Code § 28:2-313.
115. Defendant’s conduct violated D.C. Code § 28:2-314.
116. Defendant’s olive oil products were not merchantable.
117. Plaintiffs and members of the public are entitled to damages and attorneys’ fees.
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118. Defendant should pay punitive damages pursuant to D.C. Code § 28-
3905(k)(1)(C).
119. Defendant should be ordered to restore to the public all of the monies which may
have been acquired by means of Defendant’s unlawful trade practices.
COUNT I
VIOLATION OF D.C. CONSUMER PROTECTION PROCEDURES ACT
(Misrepresentation and Omissions of Material Fact Regarding “Extra Virgin”)
120. Plaintiff incorporates the allegations of the preceding paragraphs as though fully
set forth herein, and alleges further:
121. The D.C. Consumer Protection Procedures Act (CPPA) §28-3904 provides that it
is a violation, “whether or not any consumer is in fact misled, deceived or damaged thereby,” for
any person to, among other things:
(a) represent that goods or services have a source, sponsorship, approval, certification, accessories, characteristics, ingredients, uses, benefits, or quantities that they do not have; (d) represent that goods or services are of particular standard, quality, grade, style, or model, if in fact they are of another; (e) misrepresent as to a material fact which has a tendency to mislead; (f) fail to state a material fact if such failure tends to mislead; (h) advertise or offer goods or services without the intent to sell them or without the intent to sell them as advertised or offered; (u) represent that the subject of a transaction has been supplied in accordance with a previous representation when it has not;
122. EVOO is a “consumer good” within the meaning of the CPPA, D.C. Code §28-
3901(a) (2) and (7).
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123. Defendant violates the CPPA by selling Bertolli and Safeway Select olive oil as
extra virgin olive oil when, in fact, it is not extra virgin olive oil and/or has not been properly
tested to ensure it is extra virgin olive oil.
124. Defendant’s unfair and deceptive practices are likely to mislead and have misled
D.C. Consumers acting reasonably in the circumstances and violate DC Code §28-3904.
125. Defendant has violated the Act by engaging in the unfair and deceptive practices
as described herein, which offend public policies and are immoral, unethical, unscrupulous and
substantially injurious to consumers.
126. Plaintiff and D.C. Consumers have been aggrieved by Defendant’s unfair and
deceptive trade practices in that they have purchased falsely labeled, adulterated, or improperly
tested EVOO at inflated prices.
127. The damages suffered by Plaintiff and D.C. Consumers were directly and
proximately caused by the deceptive, misleading and unfair practices of Defendant as more fully
described herein.
128. Plaintiff and D.C. Consumers have purchased olive oil from Defendant, falsely
believing that it was certain to be EVOO with its intended and well known health benefits.
129. Defendant’s misrepresentations and omissions of material fact constitute unlawful
trade practices in violation of the CPPA, D.C. Code §§28-3904(a), (d), (e), (f), (h) and (u).
130. By and through the aforesaid unlawful trade practices Defendant has violated
Plaintiff and D.C. Consumers’ right to be free from unlawful trade practices, which is a statutory
right conferred by the CPPA. Defendant has injured Mostofi and D.C. Consumers and obtained
monies from Plaintiff and D.C. Consumers to which Defendant is not entitled.
‐23-
131. Plaintiff, for himself and on behalf of the General Public of the District of
Columbia, hereby seeks treble damages or statutory damages in the amount of $1,500 per
violation, whichever is greater, pursuant to D.C. Code §28-3905(k)(1). Plaintiff and the general
public of the District of Columbia further seek punitive damages, reasonable attorneys’ fees and
all costs plus interest.
COUNT II
VIOLATION OF D.C. CONSUMER PROTECTION PROCEDURES ACT
(Misrepresentation and Omissions of Material Fact Regarding Italian Origin)
132. Plaintiff incorporates the allegations of the preceding paragraphs as though fully
set forth herein, and alleges further:
133. The D.C. Consumer Protection Procedures Act (CPPA) §28-3904 provides that it
is a violation, “whether or not any consumer is in fact misled, deceived or damaged thereby,” for
any person to, among other things:
(a) represent that goods or services have a source, sponsorship, approval, certification, accessories, characteristics, ingredients, uses, benefits, or quantities that they do not have; (d) represent that goods or services are of particular standard, quality, grade, style, or model, if in fact they are of another; (e) misrepresent as to a material fact which has a tendency to mislead; (f) fail to state a material fact if such failure tends to mislead; (h) advertise or offer goods or services without the intent to sell them or without the intent to sell them as advertised or offered; and (t) use deceptive representations or designations of geographic origin in connection with goods or services;
134. EVOO is a “consumer good” within the meaning of the CPPA, D.C. Code §28-
3901(a) (2) and (7).
‐24-
135. Bertolli and Safeway Select EVOO is marketed with labels on the front or side in
large bold font that state “Imported from Italy.” Those representations are false and/or
misleading.
136. The issue of whether a product is produced in or imported from a specific country
is very important to consumers and competitors, and is governed by strict regulations and laws.
The Federal country-of-origin marking statute requires importers to clearly label the imported
product in a manner that allows the consumer to readily determine the country of origin:
Except as hereinafter provided, every article of foreign origin (or its container, as provided in subsection (b) hereof) imported into the United States shall be marked in a conspicuous place as legibly, indelibly, and permanently as the nature of the article (or container) will permit in such manner as to indicate to an ultimate purchaser in the United States the English name of the country of origin of the article.
19 U.S.C. § 1304.
137. The enabling regulations of the country of origin statute directly address and
strictly prohibit the type of deceptive country-of-origin labeling used on Bertolli and Safeway
Select, EVOO. Specifically, 19 C.F.R. § 134.46 requires that if the name of a country appears on
the label, and the product was not manufactured or produced in that country, the label must
include the actual country of origin in close proximity to the country mentioned in at least a
comparable size.
In any case in which . . . the name of any foreign country or locality other than the country or locality in which the article was manufactured or produced appear on an imported article or its container, and those words, letters or names may mislead or deceive the ultimate purchaser as to the actual country of origin of the article, there shall appear legibly and permanently in close proximity to such words, letters or name, and in at least a comparable size, the name of the country of origin preceded by “Made in,” “Product of,” or other words of similar meaning
19 C.F.R. § 134.46 (emphasis added)
138. Defendant misleads D.C. Consumers, including Plaintiff, in violation of §28-
3904(t) by selling EVOO with prominent Italian origin claims on the front or side of the EVOO
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bottle, while placing in small print on the back of the bottle information as to the actual origin of
the olive oil.
139. Defendant’s unfair and deceptive practices are likely to mislead and have misled
D.C. Consumers acting reasonably in the circumstances and violate DC Code §28-3904.
140. Defendant has violated the Act by engaging in the unfair and deceptive practices
as described herein, which offend public policies and are immoral, unethical, unscrupulous and
substantially injurious to consumers.
141. Plaintiff and D.C. Consumers have been aggrieved by Defendant’s unfair and
deceptive trade practices in that they have purchased EVOO falsely labeled as originating in Italy
at inflated prices.
142. The damages suffered by Plaintiff and D.C. Consumers were directly and
proximately caused by the deceptive, misleading and unfair practices of Defendant as more fully
described herein.
143. Plaintiff and D.C. Consumers have purchased olive oil from Defendant, falsely
believing that it was EVOO that originated in Italy.
144. Defendant’s misrepresentations and omissions of material fact constitute unlawful
trade practices in violation of the CPPA, D.C. Code §§28-3904(t).
145. By and through the aforesaid unlawful trade practices Defendant has violated
Plaintiff and D.C. Consumers’ right to be free from unlawful trade practices, which is a statutory
right conferred by the CPPA. Defendant has injured Mostofi and D.C. Consumers and obtained
monies from Plaintiff and D.C. Consumers to which Defendant is not entitled.
146. Plaintiff, for himself and on behalf of the General Public of the District of
Columbia, hereby seeks treble damages or statutory damages in the amount of $1,500 per
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violation, whichever is greater, pursuant to D.C. Code §28-3905(k)(1). Plaintiff and the general
public of the District of Columbia further seek punitive damages, reasonable attorneys’ fees and
all costs plus interest.
COUNT III
VIOLATION OF D.C. CONSUMER PROTECTION PROCEDURES ACT
(Manufacturing and/or Selling Consumer Goods in a Condition and Manner Inconsistent with D.C. Law—“Extra Virgin”)
147. Plaintiff incorporates the allegations of the paragraphs above as though fully set
forth herein, and alleges further:
148. The CPPA provides that it is an unlawful trade practice, and a violation of the act,
“to sell consumer goods in a condition or manner not consistent with that warranted by operation
of sections 28:2-312 through 318 of the District of Columbia Code” (referring to portions of the
District’s version of the Uniform Commercial Code (UCC)).
149. Section 313 of the D.C. UCC (DC Code §28:313) Provides:
(1) Express warranties by the seller are created as follows:
(a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise. (b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description. (c) Any sample or model which is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model.
(2) It is not necessary to the creation of an express warranty that the seller use formal words such as “warrant” or “guarantee” or that he have a specific intention to make a warranty, but an affirmation merely of the value of the goods or a statement
‐27-
purporting to be merely the seller's opinion or commendation of the goods does not create a warranty. 150. Section 314 of the D.C. UCC (D.C. Code §28-2-314) provides:
(a) Unless excluded or modified…a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale. (b) Goods to be merchantable must be at least such as…
(i) In the case of fungible goods, are of fair average quality within the description; and (ii) Are fit for the ordinary purposes for which such goods are used; and (iii) Are adequately contained, packaged, and labeled as the agreement may require; and (iv) Conform to the promises or affirmations of fact made on the container, or label, if any.
151. These warranties are both expressed and implied in every sale of Defendant’s
products in the District and have not been excluded or modified.
152. Plaintiff and D.C. Consumers have purchased olive oil products from Defendant
covered by Defendant’s Express Warranties and the Implied Warranty of Merchantability and
Plaintiff and D.C. Consumers have been and continue to be adversely affected by Defendant’s
failure to honor its warranties.
153. Falsely labeled EVOO products sold by the Defendant are not merchantable
because they are:
(a) not fit for the ordinary purpose for which such goods are used;
(b) not adequately labeled;
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(c) do not conform to the promises or affirmations of fact made on the container
or label and statements of fact made in advertisements for EVOO products and through
industry funded marketing campaigns; and
(d) are not adequately packaged.
154. Defendant’s breaches of its Express Warranties and the Implied Warranty of
Merchantability, and its sale of consumer goods in a condition and in a manner inconsistent with
D.C. law and contrary to the operation and requirements of federal law constitute unlawful trade
practices, which violate the rights of Plaintiff and D.C. Consumers protected by the CPPA, D.C.
Code §28-3904(x).
155. Plaintiff and each D.C. Consumer formed a contract with Defendant at the time
Plaintiff and D.C. Consumers purchased olive oil. The terms of the contract included the
promises and affirmations of fact made on EVOO product labels and through EVOO marketing
campaigns as described hereinabove. The product labeling and advertising constitutes express
warranties, became part of the basis of the bargain, and is part of a standardized contract between
Plaintiff and D.C. Consumers on the one hand and Defendant on the other.
156. Defendant breached the terms of the contract, including the Express Warranties
with Plaintiff and D.C. Consumers by providing falsely labeled or adulterated olive oil, or olive
oil that Defendant had an insufficient basis to represent was actually “extra virgin.”
157. As a direct result of Defendant’s breach of its contract and warranties Plaintiff
and D.C. Consumers have been damaged in the amount of the purchase price of the products
they purchased.
158. Defendant’s olive oil is adulterated pursuant to D.C. Code §§48-103(2)(K), (L)
and (M), thus it is sold in a manner inconsistent with D.C law and in violation of the CPPA.
‐29-
159. D.C. Code §28-3905(k)(1) provides: A person, whether acting for the interests of itself, its members, or the general public, may bring an action under this chapter in the Superior Court of the District of Columbia seeking relief from the use by any person of a trade practice in violation of a law of the District of Columbia and may recover or obtain the following remedies:
(a) treble damages, or $1,500.00 per violation, whichever is greater, payable to the consumer; (b) reasonable attorney's fees; (c) punitive damages; (d) an injunction against the use of the unlawful trade practice; (e) in representative actions, additional relief as may be necessary to restore to the consumer money or property, real or personal, which may have been acquired by means of the unlawful trade practice; or (f) any other relief which the court deems proper.
160. Defendant’s practices violated D.C. Code §28-3904, which is actionable both
individually and in a representative action under D.C. Code §28-3905(k)(1).
161. Defendant violated the D.C. Consumer Protection Procedures Act by, among
other things, selling consumer goods in a condition or manner not consistent with the express
warranties and implied warranties of merchantability provided in D.C. Code §§ 28-2-312
through 318, as alleged in detail hereinabove.
162. Plaintiff individually and on behalf of D.C. Consumers seeks actual damages for
economic and/or statutory injuries caused by these violations in an amount to be determined at
trial.
163. Plaintiff is entitled to have these damages trebled pursuant to the D.C. Code §28-
3905(k)(1)(A), but in no case awarded damages should be less than $1,500.00 per violation.
‐30-
164. Neither Plaintiff nor any single D.C. Consumer seeks damages exceeding
$74,000.00 in sum total.
165. Plaintiff seeks punitive damages pursuant to D.C. Code §28-3905(k)(1)(C).
166. Plaintiff seeks an order directing Defendant to restore or disgorge all money that
may have been acquired by means of its unlawful trade practices.
167. If there is no reasonable opportunity to award each individual member of the
public an appropriate portion of the monetary relief, Plaintiff seeks a cy pres distribution on
behalf of the public, pursuant to D.C. Code §28-3905(k)(1)(E).
168. Defendant’s past and continued failures to disclose that its products are sold in
violation of applicable D.C. laws have caused and continue to cause irreparable harm to Plaintiff
and the consuming public, thereby entitling Plaintiff and the public to equitable relief and an
injunction ordering Defendant (1) to cease selling products in violation of applicable District
laws or, in the alternative, (2) to take all necessary actions to insure that D.C. Consumers know,
immediately prior to purchasing any such product, that the product is sold in violation of
applicable D.C laws, pursuant to D.C. Code §28-3905(k)(1)(D).
169. Defendant’s acts and conduct, as described above, entitle Plaintiff and the public
to an award of attorneys' fees pursuant to D.C. Code §28-3905(k)(1)(B).
COUNT IV
VIOLATION OF D.C. CONSUMER PROTECTION PROCEDURES ACT
(Selling Consumer Goods in a Condition and Manner Inconsistent with D.C. Law—Italian Origin)
170. Plaintiff incorporates the allegations of the paragraphs above as though fully set
forth herein, and alleges further:
‐31-
171. The CPPA provides that it is an unlawful trade practice, and a violation of the act,
“to sell consumer goods in a condition or manner not consistent with that warranted by operation
of sections 28:2-312 through 318 of the District of Columbia Code” (referring to portions of the
District’s version of the Uniform Commercial Code (UCC)).
172. Section 313 of the D.C. UCC (DC Code §28:313) Provides:
(1) Express warranties by the seller are created as follows:
(a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise. (b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description. (c) Any sample or model which is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model.
(2) It is not necessary to the creation of an express warranty that the seller use formal words such as "warrant" or "guarantee" or that he have a specific intention to make a warranty, but an affirmation merely of the value of the goods or a statement purporting to be merely the seller's opinion or commendation of the goods does not create a warranty. 173. Section 314 of the D.C. UCC (D.C. Code §28-2-314) provides:
(a) Unless excluded or modified…a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale. (b) Goods to be merchantable must be at least such as…
(i) In the case of fungible goods, are of fair average quality within the description; and (ii) Are fit for the ordinary purposes for which such goods are used; and
‐32-
(iii) Are adequately contained, packaged, and labeled as the agreement may require; and (iv) Conform to the promises or affirmations of fact made on the container, or label, if any.
174. These warranties are both expressed and implied in every sale of Defendant’s
products in the District and have not been excluded or modified.
175. Plaintiff and D.C. Consumers have purchased olive oil products from Defendant
covered by Defendant’s Express Warranties and the Implied Warranty of Merchantability and
Plaintiff and D.C. Consumers have been and continue to be adversely affected by Defendant’s
failure to honor its warranties.
176. Defendant’s falsely labeled EVOO products are not merchantable because they
are:
(a) not fit for the ordinary purpose for which such goods are used;
(b) not adequately labeled; and
(c) do not conform to the promises or affirmations of fact made on the container
or label and statements of fact made in advertisements for EVOO products and through
industry funded marketing campaigns.
177. Defendant’s breaches of its Express Warranties and the Implied Warranty of
Merchantability, and its sale of consumer goods in a condition and in a manner inconsistent with
D.C. law and contrary to the operation and requirements of federal law constitute unlawful trade
practices, which violate the rights of Plaintiff and D.C. Consumers protected by the CPPA, D.C.
Code §28-3904(x).
178. Plaintiff and each D.C. Consumer formed a contract with Defendant at the time
Plaintiff and D.C. Consumers purchased olive oil. The terms of the contract included the
‐33-
promises and affirmations of fact made on EVOO product labels and through EVOO marketing
campaigns as described hereinabove. The product labeling and advertising constitutes express
warranties, became part of the basis of the bargain, and is part of a standardized contract between
Plaintiff and D.C. Consumers on the one hand and Defendant on the other.
179. Defendant breached the terms of the contract, including the Express Warranties
with Plaintiff and D.C. Consumers by not providing a product which actually originated in Italy.
180. As a direct result of Defendant’s breach of its contract and warranties Plaintiff
and D.C. Consumers have been damaged in the amount of the purchase price of the products
they purchased.
181. D.C. Code §28-3905(k)(1) provides: A person, whether acting for the interests of itself, its members, or the general public, may bring an action under this chapter in the Superior Court of the District of Columbia seeking relief from the use by any person of a trade practice in violation of a law of the District of Columbia and may recover or obtain the following remedies:
(a) treble damages, or $1,500.00 per violation, whichever is greater, payable to the consumer; (b) reasonable attorney's fees; (c) punitive damages; (d) an injunction against the use of the unlawful trade practice; (e) in representative actions, additional relief as may be necessary to restore to the consumer money or property, real or personal, which may have been acquired by means of the unlawful trade practice; or (f) any other relief which the court deems proper.
182. Defendant’s practices violated D.C. Code §28-3904, which is actionable both
individually and in a representative action under D.C. Code §28-3905(k)(1).
‐34-
183. Defendant violated the D.C. Consumer Protection Procedures Act by, among
other things, selling consumer goods in a condition or manner not consistent with the express
warranties and implied warranties of merchantability provided in D.C. Code §§ 28-2-312
through 318, as alleged in detail hereinabove.
184. Plaintiff individually and on behalf of D.C. Consumers seeks actual damages for
economic and/or statutory injuries caused by these violations in an amount to be determined at
trial.
185. Plaintiff is entitled to have these damages trebled pursuant to the D.C. Code §28-
3905(k)(1)(A), but in no case awarded damages should be less than $1,500.00 per violation.
186. Neither Plaintiff nor any single D.C. Consumer seeks damages exceeding
$74,000.00 in sum total.
187. Plaintiff seeks punitive damages pursuant to D.C. Code §28-3905(k)(1)(C).
188. Plaintiff seeks an order directing Defendant to restore or disgorge all money that
may have been acquired by means of its unlawful trade practices.
189. If there is no reasonable opportunity to award each individual member of the
public an appropriate portion of the monetary relief, Plaintiff seeks a cy pres distribution on
behalf of the public, pursuant to D.C. Code §28-3905(k)(1)(E).
190. Defendant’s past and continued failures to disclose that its products are sold in
violation of applicable D.C. laws have caused and continue to cause irreparable harm to Plaintiff
and the consuming public, thereby entitling Plaintiff and the public to equitable relief and an
injunction ordering Defendant (1) to cease selling products in violation of applicable District
laws or, in the alternative, (2) to take all necessary actions to insure that D.C. Consumers know,
‐35-
immediately prior to purchasing any such product, that the product is sold in violation of
applicable D.C laws, pursuant to D.C. Code §28-3905(k)(1)(D).
191. Defendant’s acts and conduct, as described above, entitle Plaintiff and the public
to an award of attorneys' fees pursuant to D.C. Code §28-3905(k)(1)(B).
PRAYER FOR RELIEF
192. WHEREFORE, Plaintiff individually and in his representative capacity, in the
interests of the general public, prays for judgment against Defendant, as follows:
(a) Awarding Plaintiff and the public actual damages for defendant's violations of
D.C. laws.
(b) Trebling these damages as provided in the D.C. CPPA, or awarding statutory
damages in an amount of at least $1,500.00 for each violation, whichever is greater.
(c) Awarding Plaintiff and the public their other economic damages as requested.
(d) Awarding Plaintiff and the public punitive damages for Defendant's willful and
intentional violation of the D.C. Code.
(e) Ordering Defendant to disgorge all money that has been acquired by means of its
unlawful trade practices.
(f) If there is no reasonable opportunity to distribute the amounts awarded
individually to D.C. Consumers, direct a cy pres distribution on behalf of D.C.
Consumers.
(g) Enjoining Defendant's continued violations of the District laws or in the
alternative ordering Defendant to take all necessary actions to insure that D.C.
Consumers are warned so that they may know, immediately prior to purchasing any of
Defendant’s products, that the product is sold in violation of applicable D.C laws.
‐36-
(h) Granting Plaintiff and the public the costs of prosecuting this action, together with
interest and reasonable attorneys' fees and costs; and
(i) Granting other relief as the Court deems just and proper under the circumstances.
JURY DEMAND
193. Plaintiff demands trial by jury on all claims for which there is a right to a jury
trial.
Dated: October 23, 2012 Respectfully submitted,
/s/ Hassan A. Zavareei
Hassan A. Zavareei (456161) Jeffrey D. Kaliel (983578) Anna C. Haac (979449)
TYCKO & ZAVAREEI, LLP 2000 L Street NW, Suite 808 Washington, DC 20036 Tel: (202) 973-0900 Fax: (202) 973-0950 [email protected] [email protected] [email protected]
CERTIFICATE OF SERVICE
I, Hassan A. Zavareei, hereby certify that the foregoing Second Amended Complaint was
served electronically via CaseFileXpress to all relevant parties on October 23, 2012.
/s/ Hassan A. Zavareei Hassan A. Zavareei