Mintz Appellate Team Secures Ninth Circuit Victory for Benihana Inc.

Industry: Retail & Consumer Products

Key Facts

In a case brought against Benihana, Inc., the underlying claims centered on allegations that the restaurant misled diners into thinking that some of its sushi rolls contained real crabmeat when they actually contained less-expensive imitation crabmeat
The plaintiff appealed the denial of class certification to the Ninth Circuit, seeking a rare interlocutory review under the Federal Rule of Civil Procedure (FRCP) 23(f), which the court granted
Our team of Appellate lawyers stepped in to argue the case, successfully persuading the Ninth Circuit to affirm the judgment issued by the lower court, with a narrow remand on one issue of damages

In November of 2019, Youngsuk Kim and Jennifer Greene (Ms. Greene was voluntarily dismissed from the action prior to class certification briefing) filed a class action lawsuit in the Central District of California against popular teppanyaki restaurant chain, Benihana Inc. They alleged that Benihana falsely labeled some of its sushi rolls as containing real crab when, instead, they contained imitation crab.

The plaintiff brought claims for violations of California’s Unfair Competition Law, False Advertising Law, Consumer Legal Remedies Act, and breach of express warranty arising from Benihana’s description of 10 sushi rolls on its menus. Additionally, the plaintiff sought to certify a class of all purchasers of the 10 sushi rolls in California, as well as 10 subclasses based on the purchase of each individual sushi roll.

Mintz quickly mobilized a team to represent Benihana and to craft well-rounded arguments on our client’s behalf, including filing a motion to exclude the opinions of the plaintiff’s two experts under the Federal Rule of Evidence 702. Ultimately, in February 2022, Judge John W. Holcomb excluded the plaintiff’s economist’s expert report and the damages model on which it relied and, as a result, denied class certification in its entirety because the plaintiff’s case relied exclusively on the report’s findings to establish damages. This outcome was significant as Rule 702 motions are rarely granted.

The plaintiff then appealed the decision to the Ninth Circuit, seeking interlocutory review under FRCP 23(f), raising at least two critical, evolving issues with notable consequences for class action defendants. The Ninth Circuit granted the 23(f) petition, a rarity that raised significant concerns about what the court might do.

Emily Musgrave, Co-chair of Mintz’s Appellate Practice Group, masterfully stepped in to tackle these thorny issues and to deliver a powerful oral argument in support of our clients. Only 15 days after she argued the case, the Ninth Circuit affirmed the lower court’s decision on every issue (including one that, if disturbed, would have significantly increased damages), remanding only on a narrow point as to one of the damages models. This confirmation of Judge Holcomb’s ruling was a significant victory for our client, positioning Benihana well to continue its business operations. Mintz continues to represent Benihana on remand to the federal district court.