Sunday, January 29, 2012

The Saga Continues . . . Chinese Food Restaurants Battle For World Domination

LOS ANGELES ( - Mr. Chow has been a Hollywood institution for decades. Its sleek decor and Peking duck attracts A-listers and power-brokers on a daily basis.

The tony restaurant chain, which started in London, now has outposts in New York, Miami and Las Vegas.
Similarly themed, but less established, is Philippe or Philippe Chow. It shares a surname with the famous restaurant, as well as a similarly posh aesthetic and high-end menu. It, too, has outposts in New York and Los Angeles.

In this case, any imitation is not being treated as flattery by Michael Chow, the art collector and restaurateur behind the original Mr. Chow chain.

Three years ago, he slapped Philippe Chow with a $10 million lawsuit, alleging, among other things, that his former employee ripped off his recipes and changed his name so he would be more closely identified with the restaurateur. The case will go to trial in Miami federal court on Tuesday, with high-powered showbiz litigator Bert Fields representing Michael Chow.
Philippe Chow, who changed his name from Chak Yam Chau before starting the restaurant, fired back with a countersuit charging defamation. The trial is expected to last three weeks, with Michael Chow planning to take the stand next week.

"Michael Chow is one of the great restaurateurs of our age," Fields told TheWrap. "Mister Chow is famous the world over. It pains me to see this man whose name wasn't even Chow copy his restaurant and profit by taking all of those recipes that Michael created. I believe a judge and jury will see things our way and that Michael will come out of this trial just fine."

The suit also accuses Philippe Chow of misrepresenting his past association with the original chain of chi-chi eateries. It alleges that, contrary to Philippe Chow's claims he served as the executive chef of Mr. Chow for over 25 years, he was nothing more than a chopper in the kitchen who rarely cooked.

Philippe Chow and his business partners Stratis Morfogen, David Lee, Costin Dumitrescu and Manny Hailey are named as defendants in the suit.

In an interview with TheWrap, Morfogen lashed out at Michael Chow, accusing him of trying to muddy the waters for his former chef and now competitor. He told TheWrap that the chain is countersuing the restaurateur for defamation.

"If Michael Chow owns lettuce wraps then his next lawsuit should be against P.F. Chang's," Morfogen said.
"We believe the case is meritless," he added. "We believe in the judicial system, and we're not looking to settle -- certainly not with the conditions Chow is looking for."

He said that all of the recipes for the 12 "signature" dishes that the suit claims were stolen -- such as Chicken Satay and Chicken Joanna -- are commonplace in Chinese cooking. He also claims that Philippe Chow did not sign any confidentiality agreements that would bar cooking the same food.

He also stringently refutes the suit's claims that Philippe Chow lacks restaurant experience.

"They called him a food chopper," Morfogen told TheWrap. "Well how does the food chopper beat him every year in Zagat?"

Attorneys for Mr. Chow paint a starkly different picture, alleging that Philippe Chow did indeed sign confidentiality agreements related to the recipes.

But the dispute is about more than just recipes for green prawns, according to the suit.

"Defendants directed their staff to misrepresent that the Defendants' restaurants were in fact Mr. Chow Restaurants or that they were associated or affiliated with the Mr Chow Restaurants, and that the fictitious 'Philippe Chow' (played by Defendant Chau) was 'Chef Chow' of the famous Mr. Chow restaurants, or that he was the son or brother of the real Mr. Chow," the suit reads.

It claims that Morfogen has a pattern of trading on the name and profile of well-established restaurants and has been sued for the practice before. Morfogen opened a restaurant in New York City called "Sea Grill of the Aegean" and was sued by the owners of Rockefeller Center's "Sea Grill" in 1997.

He admitted to TheWrap that he settled the case and agreed to take Grill out of the restaurant's name.
"They paid us to change the name and we settled," Morfogen told TheWrap.

Mr. Chow has six locations in Los Angeles, New York City, Miami, Las Vegas, and London. The original eatery opened in London in 1968, with the Beverly Hills outpost following in 1974.

Philippe Chow launched in 2005 and has established outposts in West Hollywood, Boca Raton, Fla., Miami Beach, New York City, Jericho, N.Y., and Mexico City.

Saturday, January 21, 2012

Chow v. Chau/Chow - Battle for World Domination!!

It’s the food fight of the century for all the egg rolls.

Chow v. Chow. Teacher versus student. Legend against upstart.

And it all goes down in a Miami federal courtroom beginning Monday, when a jury must grapple with this fundamental question: What’s in a name?
Among the potential witnesses: none other than former Miami Heat cornerstone Alonzo Mourning.

In one corner — Michael Chow, aka “Mr. Chow,” the creator and owner of the eponymous chain of upscale Chinese restaurants.

In the other — Philippe Chow, 53, a former Michael Chow disciple (and no relation) who went out on his own seven years ago. With the financial backing of restaurateur Stratis Morfogen and several famous athletes, he opened similarly swanky Asian cuisine restaurants intended to compete with Mr. Chow in New York, Los Angeles and South Beach.

The name of his growing empire: Philippe by Philippe Chow.

Confused? According to Michael Chow’s attorneys, that’s the point.
In a federal trademark infringement lawsuit, Michael Chow claims his pupil stole his restaurant’s name, its recipes and even its unique ambience in an attempt to confuse the public into thinking Philippe Chow was the original “Chow” — which is one of the most common family names in China. The suit, which depicts Philippe Chow as a fraudulent imitator whose 25 years in Mr. Chow’s kitchen were spent as little more than a glorified food chopper, seeks north of $20 million in damages.

The accused says all that is nonsense and has counter-sued on defamation grounds. Philippe Chow’s legal and financial teams claim he was a high-level chef, and along with Philippe’s mentor Sik Chung Lam, helped create Mr. Chow’s menu. As for Michael Chow, Morfogen describes him as a narcissistic celebrity front man who got rich on the backs of others.
“Michael Chow can’t boil water,” said Morfogen, who lured his star chef away from Mr. Chow’s New York location in 2005, only to open a near-replica just three blocks away. “He’s not a chef. The real story behind this lawsuit is Mr. Chow’s ego.”

Morfogen’s attorney, Anthony Accetta, plans to make that very point, with the help of a star-studded roster of witnesses.

Mourning, who along with fellow athletes Chauncey Billups, Al Harrington and Jerome Bettis is an investor in Philippe’s locations in Miami Beach and Boca Raton, is expected to testify on behalf of Philippe.

So too is hotelier Giuseppe Cipriani, the target of a similar Michael Chow lawsuit in California. Cipriani’s insult: Calling his Beverly Hills hotel and restaurant Mr. C — also too similar to “Mr. Chow” for Michael Chow’s liking.

Michael Chow, the 72-year-old Chinese expat whose father Zhou Xinfang was the famed grand master of the Beijing opera, declined comment during a break in his case’s final pre-trial hearing Wednesday.
But his attorney, Curtis B. Miner, has framed the debate as a battle for intellectual property rights, claiming that Philippe mimicking Mr. Chow’s essence and the recipes to what appear to be common Chinese dishes is tantamount to stealing the secret recipe to Coca-Cola.

While the lawsuit wasn’t filed until 2009, Michael Chow has been simmering for some time. It began when Chow learned that his old employee had teamed up with Morfogen to plan a Chinese-cuisine restaurant in New York. Alarms went off, the lawsuit states, when Michael Chow learned that his new competitor had legally changed his name from Chak Yam Chau to Philippe Chow and gave his new business the same moniker
And when Michael Chow got word in 2008 that Philippe Miami had bought space in the Gansevoort Hotel — just a quarter-mile from the W South Beach, where he would soon thereafter open South Florida’s first Mr. Chow — it was simply too much for Michael Chow to stomach.

“That was the straw that broke the camel’s back,” Miner said. “To think that the individual that [Michael Chow] brought to work for him, that he took care of, literally lent him money to buy his first house, would do this to him is galling.”

Morfogen’s counter-argument: If Michael Chow truly felt like his trademark rights had been violated, why not file suit seven years ago? Why wait until 2009, when the Philippe brand had become a lucrative, bicoastal competitor?

“Considering the timing, I think this case was nothing but a publicity stunt,” Accetta said. “It was all about, ‘How do I get the best publicity for the grand opening of my restaurant at the W?’”

Philippe Miami has since moved out of the Gansevoort and recently reopened a few miles south on Ocean Drive — a move motivated largely by a desire to get away from Michael Chow, Morfogen said.
While Miner would talk little about his strategy for the trial, expected to last up to four weeks, his witness list does give some clues.

Miner indicated he plans to call current Mr. Chow Tribeca executive chef David Hor (possibly to attest to the uniqueness of the company’s recipes), Ernst and Young accountant Sergio Negreira (who will speak to the damage caused by Philippe Chow’s actions) and of course, Mr. Chow himself.

It’s a line of argument that has a good chance of succeeding, said trademark law expert Greg Lastowka, a professor at Rutgers School of Law.

“The trademark and unfair competition claims seems pretty plausible to me, since there appears to be evidence that some consumers were confused about the affiliation of Philippe with Mr. Chow,” Lastowka said. “But I don’t see any particular claim as a clear legal slam dunk. There are contested facts and potentially persuasive arguments on both sides.”
That means Philippe’s fate largely hinges on which story the jury finds most feasible: Philippe Chow as a thief or as the embodiment of the American Dream.

Should Mr. Chow prevail, the Philippe chain would likely go broke. In addition to the crippling damages, Michael Chow is demanding the Philippe restaurants remove from Philippe’s menu items he claims are his property.
“[Michael Chow] didn’t invent Peking Duck, didn’t invent chicken satay, didn’t invent sautéed beef,” Morfogen said. “These are traditional Chinese recipes that have been around for thousands of years.”

As for any chance of a last-minute settlement?
“We just were not going to do it,” Morfogen added. “There was a mediation, but we weren’t in the spirit of settling.

“Michael Chow has used his money and power to muscle people around before, but this time he’s met a formidable foe.”

Wednesday, January 11, 2012

Pepsi Beverages pays $3.1M in racial bias case

WASHINGTON (AP) — Pepsi Beverages Co. will pay $3.1 million to settle federal charges of race discrimination for using criminal background checks to screen out job applicants — even if they weren't convicted of a crime.

The settlement announced Wednesday with the Equal Employment Opportunity Commission is part of a national government crackdown on hiring policies that can hurt blacks and Hispanics.

EEOC officials said the company's policy of not hiring workers with arrest records disproportionately excluded more than 300 black applicants. The policy barred applicants who had been arrested, but not convicted of a crime, and denied employment to others who were convicted of minor offenses.

Using arrest and conviction records to deny employment can be illegal if it's irrelevant for the job, according to the EEOC, which enforces the nation's employment discrimination laws. The agency says such blanket policies can limit job opportunities for minorities with higher arrest and conviction rates than whites.

The company has since adopted a new criminal background policy and plans to make jobs available to victims of the old policy if they are still interested in jobs at Pepsi and are qualified for the openings.

"I commend Pepsi's willingness to reexamine its policy and modify it to ensure that unwarranted roadblocks to employment are removed," EEOC Chairwoman Jacqueline Berrien said in a statement.

Pepsi Beverage spokesman Dave DeCecco said the company's criminal background check policy has always been neutral and that the EEOC did not find any intentional discrimination. He said after the issue was first raised in 2006, the company worked with the EEOC to revise its background check process "to create a workplace that is as diverse and inclusive as possible."

"We are committed to promoting diversity and inclusion and we have been widely recognized for our efforts for decades," DeCecco said.

He said the new policy would take a more "individualized approach" in considering the applicant's criminal history against the particular job being sought.

Pepsi Beverages is PepsiCo's beverage manufacturing, sales and distribution operating unit in the United States, Canada and Mexico.

Under the settlement, the company will provide the EEOC with regular reports on its hiring practices and offer antidiscrimination training to its hiring personnel and managers.

About 73 percent of major employers report that they always check on applicants' criminal records, while 19 percent do so for select job candidates, according to a 2010 survey by the Society for Human Resource Management.

But increased federal scrutiny of such policies has led some companies to reevaluate their hiring process. Pamela Devata, a Chicago employment lawyer who has represented companies trying to comply with EEOC's requirements, said there has been an uptick over the past year in EEOC charges over the use of background checks.

"The EEOC has taken a very aggressive enforcement posture on the use of criminal background and criminal history," Devata said.

The commission held a special meeting on the topic last summer, and Devata said employers have been expecting the EEOC to issue more specific guidance.

EEOC officials have said, for example, that an old drunken driving conviction may not be relevant to a clerical job, but a theft conviction may disqualify someone from working at a bank.

Julie Schmid, acting director of the EEOC's Minneapolis office, said the EEOC recommends that employers consider the nature and gravity of offenses, the time that has passed since conviction or completion of a sentence, and the nature of the job sought.

"We hope that employers with unnecessarily broad criminal background check policies take note of this agreement and reassess their policies to ensure compliance" with antidiscrimination laws, Schmid said in a written statement.

Friday, January 6, 2012

Rare but Grudging Judicial About-Face in Bias Case

“It’s a nice Christmas present, isn’t it?” said U. W. Clemon, Alabama’s first black federal judge.

Mr. Clemon, who stepped down from the bench in 2009 after three decades of service, was talking about an extraordinary about-face this month from the federal appeals court in Atlanta. He was home with a cold, but he sounded delighted to have played a part in persuading the court that some words still carry the sting of oppression, even in the modern South.

“The court now understands,” Mr. Clemon said, “the unwillingness of black men to go back to being called ‘boy.’ ”

Last year, the United States Court of Appeals for the 11th Circuit ruled that there were no racial overtones when a white manager at a Tyson chicken plant in Gadsden, Ala., called adult black men working there “boy.”

“The usages were conversational” and “nonracial in context,” the majority wrote in a 2-to-1 decision that overturned a jury verdict of about $1.4 million in an employment discrimination case brought by a black Tyson employee, John Hithon.

The decision prompted Mr. Clemon and 10 other civil rights leaders to file a brief. Among the signatories were giants of the civil rights movement like the Rev. Fred L. Shuttlesworth, who survived beatings and bombings in Alabama and who died in October, and Andrew Young, a former mayor of Atlanta and ambassador to the United Nations.

The brief urged the court to reconsider, making the case that “boy” retains its venom. For evidence, the brief drew on personal experiences, history, literary classics like “To Kill a Mockingbird” and “Native Son,” and the writings of the Rev. Dr. Martin Luther King Jr.

“Boy,” the brief said, is either a proxy for or “at the very least a close cousin” of the most charged racial epithet.

On Dec. 16, more than a year after the initial decision, the appeals court reversed course. The new ruling was opaque and grudging, but Mr. Clemon said he welcomed it, particularly since it is very unusual for a federal appeals court panel simply to change its mind. “I don’t recall it ever happening,” said Mr. Clemon, who graduated from law school in 1968.

Judge Edward E. Carnes wrote the new decision, now for a unanimous panel. He said the court had reconsidered the evidence in the case and “we now reach a different conclusion.”

Stephen B. Bright, the president of the Southern Center for Human Rights, was less magnanimous than Mr. Clemon. He said the case demonstrated “how judges manipulate facts and law to make a case come out the way they want it to.”

“The new opinion flatly contradicts the first one in several places,” Mr. Bright said.

The new decision followed unflattering news coverage of the earlier one and might have been prompted by the possibility of a rebuke from the full 11th Circuit.

On the other hand, the panel had dug in its heels in the face of earlier criticism in the long-running case, including from the Supreme Court.

In 2005, for instance, the appeals court said the meaning of “boy” depended on whether there was an adjective attached.

“The use of ‘boy’ when modified by a racial classification like ‘black’ or ‘white’ is evidence of discriminatory intent,” the court said. But “the use of ‘boy ’alone is not evidence of discrimination.”

The Supreme Court unanimously reversed the 2005 decision the following year. “The speaker’s meaning may depend on various factors including context, inflection, tone of voice, local custom and historical usage,” the justices said in an unsigned opinion.

That admonition was rejected by the 11th Circuit panel last year. Then it was embraced this month, though with little enthusiasm.

“The verdict could have gone either way,” Judge Carnes wrote, “and it went Hithon’s way.”

In the end, the new decision upheld a compensatory award to Mr. Hithon of about $365,000. But the decision struck down a $1 million award of punitive damages, saying the manager in question, who supervised 1,400 workers, was not high enough in Tyson’s corporate hierarchy for his actions to be attributed to the company, which in any event had a policy against discrimination.

A Tyson spokesman did not respond to two requests for comment.

Judge Carnes thought it worthwhile to drop a footnote criticizing the civil rights leaders’ brief, saying it had made a minor error in reciting the facts of the case. “Although we welcome amicus curiae briefs that are helpful, misstatements of fact are not helpful,” Judge Carnes wrote, using the Latin term for friend of the court.

Judge Carnes also took a swipe at Mr. Hithon’s trial lawyer, who had elicited testimony at trial about the meaning of “boy.”

“You know,” Anthony Ash, a black Tyson worker, testified in 2007, “being in the South, and everybody know being in the South, a white man says ‘boy’ to a black man, that’s an offensive word.”

“You might as well use the N-word if you are going to say that,” Mr. Ash added.

Then the lawyer uttered the word itself. Saying it, Judge Carnes wrote, was “an improper attempt to inflame the jury.”

There are classier ways to own up to mistakes. Some judges like to quote Justice Felix Frankfurter, as Judge Harry T. Edwards of the United States Court of Appeals for the District of Columbia Circuit did when he changed his mind in 1994 in a libel suit against this newspaper.

“Wisdom too often never comes,” Justice Frankfurter wrote, “and so one ought not to reject it merely because it comes late.”