Disgorgement isn’t distinguishable from restitution in ordinary consumer protection case

Brazil v. Dole Packaged Foods, LLC, 660 Fed.Appx. 531 (9th
Cir. 2016)
Brazil brought the usual California claims, alleging that defendants
deceptively described their fruit products as “All Natural Fruit.” Brazil
property alleged that Dole’s labels were deceptive given that the products
contain synthetic citric and ascorbic acid. His allegations of misleadingness
including his own testimony that he was deceived; Dole’s consumer surveys
prepared for the litigation; the FDA’s informal, non-binding policy on the use
of the word “natural” in food labels (as meaning “that nothing artificial or
synthetic … has been included in, or has been added to, a food that would not
normally be expected to be in the food”); and recent FDA warning letters to
food sellers that alleged deceptiveness under the policy because the products
in question included synthetic citric acid, among other substances. This evidence
could allow a trier of fact to conclude that “All Natural Fruit” was misleading
to a reasonable consumer and that the synthetic citric and ascorbic acids in
Dole’s products were not “natural.”
However, class certification was properly denied, leaving
only Brazil’s individual claims.  Brazil
offered a price premium theory of damages; Dole’s products weren’t valueless.  Brazil didn’t explain how a price premium
could be calculated with proof common to the class.  Brazil couldn’t substitute a theory of “nonrestitutionary

Under California law, a plaintiff
who successfully proves a defendant was unjustly enriched at his expense may in
some cases recover all profits the defendant received unjustly. Theoretically
an award of disgorgement may exceed an award of restitution; not always is the
defendant’s benefit equal to the plaintiff’s loss. But in most cases, as in
this one, the defendant’s benefit is equal to the plaintiff’s loss, so
restitution and disgorgement are functionally the same remedy. 

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