SAN FRANCISCO (Legal Newsline) – A federal appeals court could soon be hearing arguments on whether P.F. Chang’s customers would read “krab” on the menu and expect real crab to be in those dishes.
Attorneys at the Los Angeles firms Yoon Law, Lim Law Group and Law Offices of Jong Yun Kim submitted their appellate brief on May 8 to the U.S. Court of Appeals for the Ninth Circuit, which is considering hearing oral arguments on the case in December.
Plaintiff Chansue Kang is pursing the appeal after losing his case at the dismissal stage in California federal court.
“(T)he record demonstrates this case is really nothing more than a cash grab - Kang threatened to file suit against P.F. Chang’s less than three weeks after purchasing the menu items in question,” the brief filed by P.F. Chang’s on July 8 says.
“The only logical conclusion is Kang is not a responsible consumer looking to right a legitimate wrong, but rather an opportunistic profiteer looking to create — and then exploit — a loophole in a statutory scheme where none exists.”
Kang alleged in a complaint that the P.F. Chang’s China Bistro in Torrance, Calif., engaged in a bait-and-switch tactic in which the restaurant falsely labeled and advertised food products as containing crab on its menu when no crab meat was present in the product.
The food items - including kung pao dragon roll, shrimp tempura roll and California roll - allegedly contained a food item identified as “Krab Mix.”
“The mix at issue is spelled 'krab' not 'crab,'” Judge Percy Anderson wrote. “While this might be a fanciful take on the word 'crab,' no reasonable consumer would view the words 'krab mix' to mean real crab.”
Kang alleged the restaurant had committed fraud and deceptive trade practices. The court opinion decided the plaintiff failed to make an adequate case.
As an example, the court said the product Froot Loops is a breakfast cereal no reasonable person would expect to contain real fruit.
“Second, a reasonable consumer understands that cheaper sushi rolls, such as a California Roll, contain imitation as opposed to real crab,” the opinion added.
“Other dishes on P.F. Chang’s menu are described with the use of the word 'crab,' where they contain actual crab. A reasonable consumer would recognize that the use on the menu of 'krab mix' for some items and 'crab' for others suggests 'krab mix' is not the same as 'crab.'”