No Second Bite Allowed at the Tea Bag

SAN FRANCISCO (CN) - A federal judge refused to reconsider an order dismissing an unjust enrichment claim against Twinings tea, as the same woman sued it in a false advertising lawsuit.

Nancy Lanovaz sued Twinings of North America in May 2012, claiming it misbranded its tea as containing antioxidants. She claimed that because California had adopted federal regulations, Twinings also violated California laws on unfair competition, false advertising and consumer remedies.'

The court granted her motion for leave to file a reconsideration of its February 2013 order denying certification of the damages class under the unjust enrichment claim. She argued that the claim is a stand-alone cause under California law and that "the remedy of nonrestitutionary disgorgement is available under an unjust enrichment claim, but not under the UCL, FAL or CLRA, such that the unjust enrichment claim is not duplicative."

But on Wednesday U.S. District Judge Ronald Whyte denied the motion, finding the damages she seeks are available under the Consumer Protection Act.

"It is now apparent that plaintiff is actually seeking a form of damages that is available ... under both an unjust enrichment claim and a consumer protection claim, namely restitutionary disgorgement of profits from Twinings alleged mislabeling," Whyte said in his 9-page order. "Because this form of damages was available under the consumer protection claim, plaintiff should have sought such a remedy when presenting her motion for class certification. She did not.

As the court noted in its order granting leave, the court will not allow plaintiff to use the unjust enrichment claim as a vehicle for belatedly obtaining a second bite at class certification, if the damages issues under the unjust enrichment claim are the same as the damages issues under the consumer protection claims on which the court has already ruled."

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