SAN FRANCISCO (Legal Newsline) – Some of the highest-ranking judges in the country have decided to let a class action lawsuit brought by a man allegedly confused about whether “krab” means real crab go forward.
The Feb. 9 decision by the U.S. Court of Appeals for the Ninth Circuit reverses a trial court ruling that dismissed the claim, finding that no reasonable consumer would believe krab products at P.F. Chang’s would contain real crab because krab is a known term for imitation crab.
P.F. Chang’s called the lawsuit “nothing more than a cash grab,” and a dissenting judge seems to agree, but Ninth Circuit judges Paul Watford and Michelle Friedland say lawyers at Yoon Law, Lim Law Group and Law Offices of Jong Yun Kim plausibly alleged that a reasonable consumer is likely to be deceived.
The two are President Obama-appointees, while the third member of the panel – Mark Bennett – is a Trump-appointee and filed a dissenting opinion.
“(The lawsuit) ultimately may not be borne out by the evidence, but it is at least plausible that reasonable consumers would be deceived in this way,” the majority opinion says.
“We certainly agree with defendant that reasonable consumers confronted with the fanciful spelling of ‘krab’ on the menu would not assume they were purchasing a sushi roll with 100% real crab meat. But the menu uses the term ‘krab mix,’ and Kang’s allegation is that reasonable consumers would understand that term to mean the item contains a mixture of imitation and real crab.
“Because the term ‘krab mix’ lacks any commonly understood contrary meaning, we cannot say, in the absence of evidence bearing on the issue, that Kang’s allegation is implausible on its face.”
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 - contained a food item identified as “Krab Mix.”
“The mix at issue is spelled 'krab' not 'crab,'” Los Angeles federal judge Percy Anderson wrote in dismissing the lawsuit last year. “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. Anderson decided the plaintiff failed to make an adequate case.
As an example, Anderson 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.'”
Judge Bennett certainly agreed with the trial judge’s assessment and noted the odd timing that seems to support the contention of P.F. Chang’s that the case was a cash grab that went into motion when plaintiff Chansue Kang went to the restaurant on April 12, 2019.
“His complaint states that on April 29, 2019, he gave pre-suit notice by certified mail. So, in a seventeen-day period: (1) Plaintiff was unfairly bamboozled by P.F. Chang’s into thinking ‘krab’ was crab; (2) Plaintiff discovered the horrible truth that ‘krab’ wasn’t crab; (3) Plaintiff found a crusading attorney; (4) that attorney somehow confirmed the horrible truth; and (5) that attorney drafted and mailed a pre-suit letter,” Bennett wrote. “Remarkable diligence!
“The standard for misrepresentation is not whether the ‘least sophisticated’ or ‘most gullible’ consumer would be misled by the term ‘krab mix,’ but whether a significant portion of ordinary consumers, acting reasonably, would think ‘krab mix’ contains real crab meat.”