(CN) — A divided Ninth Circuit panel said Tuesday the Asian restaurant chain P.F. Chang’s should face claims that it deceives customers who think they’re eating menu items including sushi made with “krab mix” when in fact the dishes contain no real crab meat.
P.F. Chang’s customer Chansue Kang sued the national chain in 2019 on behalf of himself and a putative class of consumers who he claimed were caught in a “bait and switch” scheme.
Customers who ordered a variety of dishes made with a “krab mix” such as the Kung Pao dragon roll and the California roll believed they were eating crab when no crab was actually present, Kang says in the lawsuit.
Kang says he wouldn’t have purchased dishes containing “krab mix” if P.F. Chang’s hadn’t misrepresented the ingredients of its meals and falsely advertised its products. If the restaurant chain would’ve clearly labeled the ingredient as “imitation crab” the entire squabble could’ve been avoided, he adds.
This past January, U.S. District Judge Percy Anderson dismissed the lawsuit, finding Kang’s claims weren’t viable or plausibly alleged.
“A reasonable consumer does not, as plaintiff argues, need the fact that a California roll with ‘krab meat’ contains ‘imitation crab’ explicitly spelled out for them,” 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.”
But a divided three-judge Ninth Circuit panel reached a different conclusion on the matter, writing in an unsigned, unpublished 5-page memorandum that determining viability of Kang’s claims was inappropriate on a motion to dismiss.
“That allegation 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 memorandum said.
U.S. Circuit Judges Paul J. Watford and Michelle T. Friedland, both Barack Obama appointees, joined the memorandum position that while reasonable customers might assume “krab” means imitation crab, “krab mix” could lead customers to think a dish contains a mix of real and imitation crab meat.
“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,” the memorandum said. “We cannot assume that reasonable consumers would necessarily look past the term ‘krab mix’ in the item they were ordering to notice that ‘crab’ appeared as an ingredient in other items on the same menu.”
The majority reversed Anderson’s ruling and remanded the matter for further proceedings.
Dissenting, U.S. Circuit Judge Mark J. Bennett, a Donald Trump appointee, wrote Kang’s claims weren’t plausible and that any reasonable customer should know that “fanciful” spelling changes the meaning of the product description.
“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,” Bennett wrote. “The majority fails to give the ordinary California consumer enough (or any) credit.”
Bennett disagreed with the majority’s position that “krab mix” could mean a combination of real and imitation crab meat.
“Consumers may be unsure about what exactly those ingredients are, but that doesn’t make it reasonable to assume one of those ingredients will be crab,” Bennett wrote. “The real harm here comes from allowing such implausible claims as plaintiffs’ to proceed, which will increase costs to all consumers.”
Bennett wrote that he would affirm Anderson’s dismissal of Kang’s misrepresentation and breach of express warranty claims.
The parties’ attorneys did not immediately respond to a request for comment on the ruling.