As part of an ongoing case against Benihana for misleading statements about their seafood products, the Central District of California issued an order denying the plaintiff Youngsuk Kim’s motion for class certification.
In September 2019, Kim filed a lawsuit alleging that Benihana’s menu contained “misleading, deceptive, and false” statements regarding the crab options even though they do not contain any “real crab.” The plaintiff argued for the certification of the putative class consisting of all customers who ate products that did not contain real crab, and called in two experts to support her case.
Dr. Maronick, one of Kim’s expert witnesses, found that consumers would be willing to pay only about 56% of the actual price of Benihana’s seafood products if they were informed about the lack of real crab in these products. The Court found that Maronick’s survey was carried out logically with relevant results, and thus denied the motion to dismiss his findings. Next, the Court considered the testimony of Dr. Forister who “provide[d] different methods for cost savings damages, benefit-of-the-bargain damages, and restitution damages” but did not “raise the cost-savings damages calculation in his motion.” As a result, the motion to exclude his testimony was denied in regards to “benefit-of-the-bargain damages” but granted in respect to the part where he discussed the faulty final calculations. Thus, the entire report was excluded from court records.
The court agreed with the plaintiff that it was important to determine whether Benihana’s “‘crab’ label was likely to mislead a reasonable person into believing that the Subject Food Products contain real crab;” however Kim failed to meet typicality requirements because the main item she questioned, the California Roll, did not advertise itself to contain any crab. No damages model can be determined since the Forister Report is excluded, so therefore class certification was denied.
In conclusion, the motion to exclude Dr. Maronick’s report was denied; the motion to exclude Dr. Forister’s report was granted, and class certification was denied.
The plaintiffs are represented by Yoon Law, and the defendants are represented by Mintz Levin Cohn Ferris Glovsky and Popeo.
