“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.
Trump Ninth Circuit judge Mark Bennett argued in dissent that a claim of false advertising and attempted consumer deception against a corporation operating a restaurant chain should be dismissed, in accord with a lower court ruling, without even allowing consumers to take discovery and prove their claim. The majority rejected Bennett’s argument, reversed the lower court, and allowed the case to proceed in its February 2021 decision in Kang v PF Chang’s China Bistro Inc.
Chansue Kang filed a class action lawsuit under California laws protecting against false advertising and deception of consumers when he learned that sushi rolls that he bought from PF Chang’s listed on the menu as containing “krab mix” in fact contained no crab meat at all. He explained that although he realized that the term meant the item contained other food as well, the term led him to believe that there was some real crab in the item, not just artificial ingredients only, as he later learned. A district court dismissed the claim on its face without even allowing any discovery, however, claiming that Kang’s contentions were “implausible on their face.”
On appeal, a three-judge panel of the Ninth Circuit reversed in a 2-1 decision. The question, the majority explained, was whether Kang could “plausibly allege” that consumers are “likely to be deceived” by Chang’s “use of the term ‘krab mix’ on its restaurant menus.” Determining whether reasonable consumers would likely be deceived, the majority went on, is usually “a question of fact not appropriate for decision” on a “motion to dismiss” without discovery, and that “is the case here.” Kang’a allegations may or may not be supported by the evidence, the majority went on, but it “at least plausible” that reasonable consumers would be deceived into thinking that the item contained “a mixture of imitation and real crab.” The majority sent the case back to the lower court so that Kang could try to prove his claims.
Trump judge Mark Bennett dissented. He claimed that it would be obvious that “krab mix” spelled “with a k” does not contain any crab meat, as courts have recognized in dismissing claims that “froot loops” contain real fruit. This conclusion is reinforced, Bennett asserted, because the menu “lists other items containing ‘crab’” spelled correctly. Bennett would have affirmed the lower court dismissal of the claim against Changs.
The majority explained what was wrong with Bennett’s assertions. The case concerning “Froot Loops” did not control, the majority wrote, because the “fanciful spelling” of fruit was only in the “name of the cereal” and not as part of a “description of the actual ingredients” as well, as in this case. The argument about other items on the menu may be an appropriate argument later in the case after discovery, the majority continued, but prior precedent makes clear that “we cannot assume” that consumers would “necessarily look past the term ‘krab mix’ in the item they were ordering” in order to notice that “crab’ appeared as an ingredient in other items” on the menu.
As a result of the majority decision, therefore, Chansue Kang will have the opportunity to go forward and prove his claim, on behalf of himself and other consumers, that PF Chang’s committed unlawful deception and false advertising. If it had been up to Bennett, however, the corporation would have prevailed without giving Kang that chance.