Filed: Jan. 10, 2014
Latest Update: Mar. 02, 2020
Summary: Case: 12-15994 Date Filed: 01/10/2014 Page: 1 of 20 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 12-15994 _ D.C. Docket No. 1:09-cv-21893-WMH MICHAEL CHOW, a.k.a. "Mr. Chow", MR. CHOW ENTERPRISES, LTD, a California limited partnership, MC MIAMI ENTERPRISES, LLC, a Florida limited liability company, MC TRIBECA, LLC, a New York limited liability, TC VENTURES, INC., a New York corporation, Plaintiffs - Counter Defendants - Appellants Cross Appellees, EVA CHO
Summary: Case: 12-15994 Date Filed: 01/10/2014 Page: 1 of 20 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 12-15994 _ D.C. Docket No. 1:09-cv-21893-WMH MICHAEL CHOW, a.k.a. "Mr. Chow", MR. CHOW ENTERPRISES, LTD, a California limited partnership, MC MIAMI ENTERPRISES, LLC, a Florida limited liability company, MC TRIBECA, LLC, a New York limited liability, TC VENTURES, INC., a New York corporation, Plaintiffs - Counter Defendants - Appellants Cross Appellees, EVA CHOW..
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Case: 12-15994 Date Filed: 01/10/2014 Page: 1 of 20
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-15994
________________________
D.C. Docket No. 1:09-cv-21893-WMH
MICHAEL CHOW,
a.k.a. "Mr. Chow",
MR. CHOW ENTERPRISES, LTD,
a California limited partnership,
MC MIAMI ENTERPRISES, LLC,
a Florida limited liability company,
MC TRIBECA, LLC,
a New York limited liability,
TC VENTURES, INC.,
a New York corporation,
Plaintiffs - Counter
Defendants - Appellants
Cross Appellees,
EVA CHOW, et al.,
Counter Defendants,
versus
CHAK YAM CHAU,
STRATIS MORFOGEN,
PHILIPPE MIAMI, LLC,
a Florida limited liability company,
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PHILIPPE WEST COAST, LLC,
COSTIN DUMITRESCU,
MANNY HAILEY,
DAVID LEE,
DAVÉ 60 NYC, INC.,
Defendants - Counter
Claimants - Appellees
Cross Appellants,
PHILIPPE RESTAURANT CORP.,
Defendant - Counter
Claimant - Appellee,
PHILIPPE EXPRESS, LLC, et al.,
Defendants - Counter Claimants.
________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(January 10, 2014)
Before CARNES, Chief Judge, WILSON, Circuit Judge, and CORRIGAN, *
District Judge.
PER CURIAM:
Michael Chow is a chef who credits himself with introducing “high-end
Chinese cuisine in a fine dining setting to the west” through the “Mr Chow”
restaurants he opened across the country, first in Beverly Hills, California in 1974,
*
Honorable Timothy J. Corrigan, United States District Judge for the Middle District of
Florida, sitting by designation.
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then on 57th Street in New York City in 1979, next in the Tribeca neighborhood of
New York City in 2006, and most recently in Miami Beach, Florida in 2009.1
These restaurants serve a number of “signature dishes,” have distinctive décor and
feature a performance of sorts, referred to as the “noodle show,” where a member
of the staff makes fresh noodles by hand for the patrons.
Philippe Chow Chau, born Chak Yam Chau, worked in the kitchen of the Mr
Chow restaurant on 57th Street for twenty-five years before leaving to start his
own restaurant. He partnered with Stratis Morfogen to open a restaurant in
December 2005 called “Philippe by Philippe Chow” on 60th Street in New York
City, a few blocks from the Mr Chow on 57th Street. Philippe Chau and Morfogen
later opened additional restaurants, including in Miami Beach and Beverly Hills. 2
The menu at the Philippe restaurants is very similar to the menu at the Mr Chow
restaurants, as are the décor and presentation of the restaurants, including the
“noodle show.”
Michael Chow was suspicious of Philippe Chau and the Philippe Restaurants
before the very first Philippe restaurant opened. The maître ď of the Mr Chow
1
Each restaurant is operated by a separate corporation, each of which was a plaintiff in
this case. However, each restaurant is called “Mr Chow” (with no period). We will refer to the
restaurants as “Mr Chow” restaurants, to the appellants-cross appellees collectively as “Mr.
Chow” (with a period), and, when necessary, to Michael Chow individually as “Michael Chow.”
2
Like the Mr Chow restaurants, each “Philippe by Philippe Chow” restaurant is operated
by a separate corporation, each of which was a defendant. We will refer to the restaurants as
“Philippe” restaurants, the appellees-cross appellants collectively as “the Philippe Restaurants,”
and, when necessary, to Philippe Chow Chau individually as “Philippe Chau.”
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restaurant on 57th Street actually had toured the Philippe restaurant on 60th Street
before it opened and sent Michael Chow a copy of the menu. Michael Chow was
certain that Philippe Chau had stolen his recipes and business plan in order to set
up a carbon copy of Mr Chow only a few blocks away.
Michael Chow and the various corporate entities that operate the Mr Chow
restaurants filed their initial complaint on July 8, 2009, naming as defendants
Philippe Chau, Stratis Morfogen, the various corporations that operate the Philippe
restaurants, and certain other individuals associated with the Philippe restaurants.
Mr. Chow alleged trademark, trade name, and trade dress infringement, false
advertising, misappropriation of trade secrets, and unfair competition under
federal, state, and common law. The Philippe Restaurants later filed counterclaims
for defamation and to have Mr. Chow’s trademark deregistered.
The case progressed toward trial. A few days before trial, the district court
ruled on a number of pretrial motions, including the Philippe Restaurants’ motion
for summary judgment on Mr. Chow’s statutory unfair competition claims under
the Florida Deceptive and Unfair Trade Practices Act, Fla. Stat. §§ 501.201-213,
and California Business and Professions Code §§ 17200-17210. The district court
granted summary judgment in favor of the Philippe Restaurants to the extent the
claims relied upon alleged illegal compensation practices by the Philippe
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Restaurants, finding that Mr. Chow had not demonstrated any damages from these
alleged practices.
Trial began on January 23, 2012 and spanned five weeks in January and
February 2012. On February 15, 2012, prior to submitting the case to the jury, the
district court orally ruled on the parties’ motions for judgment as a matter of law,
including a motion by the Philippe Restaurants as to Mr. Chow’s trade secrets
misappropriation claim. The district court granted that motion on the basis that the
claim was barred by the applicable statute of limitations.
Later on February 15, the district court instructed the jury; the following
day, the jury heard closing arguments and began its deliberations. The verdict
form began by asking the jury to find for either all the plaintiffs or all the
defendants on each of Mr. Chow’s remaining claims. Then, if the jury found for
Mr. Chow on any claim, the jury would separately determine for each plaintiff an
amount of damages, if any, and which defendant or defendants were responsible
for those damages. The form then asked the jury whether punitive damages were
warranted against the Philippe Restaurants, before moving to the Philippe
Restaurants’ remaining counterclaims for defamation and for deregistration of the
“Mr. Chow” trademark.
On February 23, 2012, the jury returned its verdict. The jury found in favor
of Mr. Chow only on its claims for false advertising and unfair competition by
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deceptive conduct and in favor of the Philippe Restaurants on all of Mr. Chow’s
other claims. The jury found that defendant Davé 60 NYC, Inc. (operator of the
Philippe restaurant on 60th Street) caused $520,541.00 in damages to plaintiff TC
Ventures, Inc. (operator of the Mr Chow restaurant on 57th Street) and that Stratis
Morfogen caused $500,000.00 in damages to Michael Chow individually. The
jury found that none of the other plaintiffs were damaged and did not assess
punitive damages against the Philippe Restaurants. Finally, the jury also found in
favor of Mr. Chow and against the Philippe Restaurants on their defamation and
trademark counterclaims.
Among a number of post-trial motions, the Philippe Restaurants filed a
motion for judgment as a matter of law, arguing that the evidence at trial did not
support a verdict against Davé 60 NYC, Inc. and Stratis Morfogen on Mr. Chow’s
false advertising and unfair competition by deceptive conduct claims and that the
damages award in favor of Michael Chow on top of the award to TC Ventures, Inc.
was duplicative. The district court denied the motion as to Davé 60 NYC, Inc., but
set aside the verdict against Stratis Morfogen on the grounds that Michael Chow
should not have appeared separately on the verdict form. The district court entered
Final Judgment consistent with its Order. This appeal and cross-appeal ensued.
Mr. Chow argues on appeal that the district court erred in granting summary
judgment before trial on their statutory unfair competition claims and in then
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excluding from trial any evidence of the Philippe Restaurant’s alleged illegal
compensation practices. According to Mr. Chow, the district court also erred in
granting judgment against it during trial on its trade secrets claim based on the
statute of limitations. Finally, Mr. Chow argues that the district court should not
have set aside the verdict against Stratis Morfogen post-trial, but that once it did,
the court should have ordered a new trial on the damages caused by Stratis
Morfogen, rather than ordering that Mr. Chow take nothing.
For their part, the Philippe Restaurants cross appeal the verdict against Davé
60 NYC, Inc. on Mr. Chow’s false advertising and unlawful competition by
deceptive conduct claims and the district court’s denial of their motion for
judgment as a matter of law in favor of Davé 60 NYC, Inc. on those claims.
I. STANDARD OF REVIEW
We review de novo rulings on motions for summary judgment and motions
for judgment as a matter of law, and, in each instance, apply the same legal
standards as the district court. Avenue CLO Fund, Ltd. v. Bank of America, N.A.,
723 F.3d 1287, 1293-94 (11th Cir. 2013) (summary judgment); Chaney v. City of
Orlando, Fla.,
483 F.3d 1221, 1227 (11th Cir. 2007) (judgment as a matter of law).
“Summary judgment is appropriate if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show
there is no genuine issue as to any material fact and that the moving party is
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entitled to judgment as a matter of law.” Maddox v. Stephens, 727 F.3d 1109,
1118 (11th Cir. 2013); see Fed. R. Civ. P. 56(a) (c). In determining whether to
grant summary judgment, “the evidence and inferences drawn from the evidence
are viewed in the light most favorable to the nonmoving party, and all reasonable
doubts are resolved in his favor.” WSB-TV v. Lee,
842 F.2d 1266, 1270 (11th
Cir.1988; Augusta Iron & Steel Works, Inc. v. Employers Ins. of Wausau,
835
F.2d 855, 856 (11th Cir.1988).
Judgment as a matter of law may be entered where “‘there is no legally
sufficient evidentiary basis for a reasonable jury to find’ for the non-moving
party.” Chaney, 483 F.3d at 1227 (quoting Lipphardt v. Durango Steakhouse of
Brandon, Inc.,
267 F.3d 1183, 1186 (11th Cir. 2001)); Fed. R. Civ. P. 50. Stated
another way, “judgment as a matter of law is appropriate only if the evidence is so
overwhelmingly in favor of the moving party that a reasonable jury could not
arrive at a contrary verdict.” Middlebrooks v. Hillcrest Foods, Inc.,
256 F.3d 1241,
1246 (11th Cir. 2001). “[A renewed motion for judgment as a matter of law]
should be decided in the same way it would have been decided prior to the jury’s
verdict, and . . . the jury’s particular findings are not germane to the legal
analysis.”
Chaney, 483 F.3d at 1228. As with summary judgment, the court views
the evidence and draws all inferences in favor of the non-moving party. Cleveland
v. Home Shopping Network, Inc.,
369 F.3d 1189, 1192-93 (11th Cir. 2004).
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We review the district court’s exclusion of evidence from trial for an abuse
of discretion. Fidelity Interior Constr., Inc. v. Se. Carpenters Reg’l Council of
United Bhd. of Carpenters & Joiners of Am., 675 F.3d 1250, 1258-59 (11th Cir.
2012).
II. DISCUSSION
A. The Alleged Illegal Compensation Practices
Mr. Chow appeals the district court’s grant of summary judgment against it
on its statutory unfair competition claims under the Florida Deceptive and Unfair
Trade Practices Act, Fla. Stat. §§ 501.201-213, and its counterpart California
Business and Professions Code §§ 17200-17210. The district court found that Mr.
Chow had not established any connection between its allegations that the Philippe
Restaurants illegally paid their staff cash “under the table” and any damage Mr.
Chow sustained, particularly to the Florida or California Mr Chow restaurants.
Finding no proof of damages from these practices, the district court entered
summary judgment on these claims and excluded from trial any evidence of these
practices. The district court also concluded that, in any event, any potential
probative value this evidence might have had was weakened by evidence that had
been proffered suggesting Mr. Chow had engaged in similar practices.
We agree that summary judgment was proper. Only speculation connected
the alleged illegal compensation practices to Mr. Chow’s alleged damages. This is
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particularly true for the Mr Chow restaurants in Florida and California, which Mr.
Chow conceded at trial sustained little-to-no damage at all. The district court then
appropriately exercised its discretion in excluding evidence of these irrelevant
practices at trial. We therefore affirm the district court’s rulings on this issue.
B. Mr. Chow’s Claim for Misappropriation of Trade Secrets
Mr. Chow also argues that the district court erred in granting judgment as a
matter of law on its claim that the Philippe Restaurants misappropriated Mr.
Chow’s trade secrets, specifically the recipes and techniques used to prepare its
“signature dishes.” The parties agree that New York law governs these claims,
including New York’s three-year statute of limitations on misappropriation of trade
secrets claims. See N.Y. C.P.L.R. § 214(4). The parties also agree that New York
law recognizes a “continuing tort” rule for such claims, articulated as follows by
the Southern District of New York in Lemelson v. Carolina Enterprises, Inc.:
If a defendant misappropriates and discloses a trade secret, he
becomes liable to plaintiff upon disclosure. On the other hand, if the
defendant keeps the secret confidential, yet makes use of it to his own
commercial advantage, each successive use constitutes a new,
actionable tort for the purpose of the running of the Statute of
Limitations.
...
The obverse of the rule also applies. If the defendant publicizes or
otherwise discloses the secrets revealed to him, there can be no
continuing tort of unlawful use.
541 F. Supp. 645, 659 (S.D.N.Y. 1982) (citations omitted).
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The district court granted judgment as a matter of law in favor of the
Philippe Restaurants on Mr. Chow’s trade secrets claim, finding that it was barred
by the statute of limitations. The district court later explained that judgment on
this claim was appropriate because the evidence demonstrated that the Philippe
Restaurants openly served food allegedly based on Mr. Chow’s recipes since the
first Philippe restaurant opened in December 2005, and actually gave a tour of the
restaurant and a copy of the menu to a long-time Mr. Chow employee before the
restaurant opened. Then, as the district court noted, Philippe Chau appeared on
television shortly after the restaurant opened to prepare selected items from his
menu. The district court concluded that the Philippe Restaurants had sufficiently
disclosed the alleged trade secrets for the statute of limitations to have started by
the end of 2005. The complaint was not filed until July 8, 2009, so the district
court found Mr. Chow’s trade secrets claims untimely.
Though we review this issue de novo, we reach the same conclusion as the
district court. A review of the record confirms the district court’s view that the
Philippe Restaurants had adequately disclosed Mr. Chow’s alleged trade secret
recipes and techniques. Moreover, it is unclear under Mr. Chow’s reading of the
continuing tort rule when, if ever, the statute of limitations would commence on its
trade secrets claim, a claim it concedes it knew of more than three years before it
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filed its complaint. We conclude that the district court properly granted judgment
as a matter of law on this claim.
C. The Verdict
Finally, both sides take issue with the final judgment entered. Mr. Chow
contends that the evidence supports an award of damages to Michael Chow
individually, and that the district court therefore erred in setting aside the jury’s
verdict in Michael Chow’s favor against Stratis Morfogen. On cross-appeal, the
Philippe Restaurants maintain that no reasonable jury could have found against
Davé 60 NYC, Inc. based on the evidence at trial, so the district court erred by not
setting aside the jury’s verdict against it.
1. The Verdict against Davé 60 NYC, Inc.
We begin with the Philippe Restaurants’ challenge to the jury’s verdict
against Davé 60 NYC, Inc. There was evidence of false advertising and unfair
competition which caused damage to TC Ventures, Inc., the operator of the Mr
Chow restaurant on 57th Street, as well as to Michael Chow individually. For
example, Mr. Chow presented evidence of a number of potentially deceptive public
statements attributable to Stratis Morfogen and to Davé 60 NYC, Inc. (the
corporate operator of the Philippe restaurant on 60th Street, of which Morfogen is
an officer), including statements that Philippe Chau was the “mastermind” and
“architect” of the menu at the Mr Chow restaurants and that Philippe Chau was a
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critically-acclaimed chef in his own right. There was also evidence that Morfogen
purchased a number of internet search terms, such as “Chow” and “Mr Chow,” so
that “sponsored links” to the Philippe Restaurants’ website would appear in the
results of searches using those words on many internet search engines. Finally,
through testimony of an expert and Michael Chow, Mr. Chow presented evidence
of the lost profits of the restaurant on 57th Street and the damage to the value of
Michael Chow’s stake in the restaurant.
A reasonable jury could conclude that, taken together, the public statements
and the sponsored links were misleading and had the capacity to deceive
consumers. 3 Despite the Philippe Restaurants’ argument to the contrary, for which
they cite no authority, Mr. Chow need not have prevailed on its trademark
infringement claims to succeed on its other claims under the Lanham Act. See
Freedom Sav. & Loan Ass’n v. Way, 757 F.2d 1176, 1186 (11th Cir. 1985)
(“Failure on the infringement claim would not automatically bar an unfair
competition claim [under 15 U.S.C. § 1125].”); Prof’l Golfers Ass’n of Am. v.
Bankers Life & Cas. Co.,
514 F.2d 665, 671 (5th Cir. 1975) (“Unfair competition,
however, is a more broadly conceived tort than its frequent litigation partner,
trademark infringement, and there are some instances where a defendant is guilty
3
The parties do not address, and we also decline to address under the facts of this case,
whether the purchase of sponsored links is a “use in commerce” for purposes of 15 U.S.C. §
1125(a).
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of competing unfairly without having technically infringed.”); also Babbit Elecs.,
Inc. v. Dynascan Corp., 38 F.3d 1161, 1181 (11th Cir. 1991) (“Section 1125(a) is
broader than Section 1114 in that it covers false advertising or description whether
or not it involves trademark infringement.”). Though the evidence of damage from
these acts is not overwhelming, viewing the evidence in the light most favorable to
the jury’s verdict, we cannot say that there was no legally sufficient basis for a
reasonable jury to conclude that these acts were at least partially responsible for
Mr. Chow’s drop in sales and the reduction in the value of the restaurant. We
therefore affirm the district court’s denial of Davé 60 NYC, Inc.’s motion for
judgment as a matter of law.
2. The Verdict in Favor of Michael Chow Individually
We reverse, however, the district court’s decision to set aside the verdict for
Michael Chow individually. Initially, neither side wanted Michael Chow on the
verdict form. In their initial proposed verdict form, the Philippe Restaurants lump
all the plaintiffs together and proposed to ask the jury to decide liability and
determine damages, if any, on each of Mr. Chow’s claims and to then fill in a
blank identifying which defendant or defendants were responsible. Mr. Chow’s
original proposed verdict form was closer to the form ultimately given to the jury
and started out by asking about liability on each of Mr. Chow’s claims, then
moving to damages for each restaurant, with a list of the defendants potentially
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responsible below. Their proposal did not include a line for Michael Chow
individually.
After negotiating among themselves, the parties submitted a joint set of
proposed instructions and a proposed verdict form, noting any disagreements that
remained. This joint proposal included, for the first time, a line on the verdict form
for Michael Chow individually. However, it was the Philippe Restaurants that
requested that he be listed separately; Mr. Chow insisted that there was no need to
list him because any damages to the restaurants would ultimately pass through
them to Michael Chow, their owner.
The district court agreed with the Philippe Restaurants and added Michael
Chow to the verdict form, but did not at first include a list of defendants potentially
responsible for his damages as it had with each of the Mr Chow restaurants.
During its deliberations, the jury sent the court a question asking, “If we award
damages for Michael Chow individually, who would be responsible to pay since no
one has been indicated on the verdict form[?]” The district court and the parties
agreed to submit a replacement page of the verdict form that did list the defendants
underneath Michael Chow’s name so that damages could be awarded to Michael
Chow.
The jury then returned a verdict finding Davé 60 NYC, Inc. responsible for
$520,451.00 in damages to TC Ventures, Inc. and Stratis Morfogen responsible for
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$500,000 in damages to Michael Chow individually. The Philippe Restaurants
moved for judgment as a matter of law as to both awards, arguing among other
things that the award to Michael Chow was duplicative of the award to TC
Ventures, Inc. In its response, Mr. Chow reversed its original position and argued
in support of the separate award to Michael Chow.
The district court agreed with the Philippe Restaurants that Michael Chow
should not have been on the verdict form. The focus of trial, in the court’s view,
was on the damage to the Mr Chow restaurants, not to Michael Chow individually.
The court believed that any damages Michael Chow might have sustained were
from damages to the restaurants that flowed through to him as their owner. The
jury was instructed that it could award damages to a restaurant for its lost profits or
its reduced sale value, but not both. The district court concluded that the award to
Michael Chow was therefore duplicative. We disagree.
To begin with, the Philippe Restaurants repeatedly invited the purportedly
duplicative damages awards, first by insisting that Michael Chow be on the verdict
form, and then by agreeing that the verdict form be amended to include a list of
defendants potentially responsible for his damages. 4 These invitations to purported
error are grounds enough alone to reinstate the jury’s verdict. Ford ex rel. Estate of
4
At oral argument, the Philippe Restaurants explained that they pushed for Michael
Chow’s inclusion on the verdict form because they were certain the jury would not award him
damages, which they thought would entitle them to recover their attorney’s fees from him.
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Ford v. Garcia, 289 F.3d 1283, 1293-94 (11th Cir. 2002) (holding that the
proponent of the instructions given to the jury invites any error in the proposed
instruction, which then “precludes a court from ‘invoking the plain error rule’”
(quoting United States v. Davis,
443 F.2d 560, 564-65 (5th Cir. 1971))).
Then, consistent with their invitation to the supposed error, the Philippe
Restaurants waived any issue with the verdict form by failing to object to it before
the jury retired for deliberations, Farley v. Nationwide Mut. Ins. Co., 197 F.3d
1322, 1329 (11th Cir. 1999); Landsman Packing Co. v. Cont’l Can Co.,
864 F.2d
721, 726 (11th Cir. 1989), or with the consistency of the verdict itself by failing to
object before the jury was discharged, see Golub v. J.W. Gant & Assocs.,
863 F.2d
1516, 1521 n.4 (11th Cir. 1989) (“[I]n this circuit, all challenges to the consistency
of special verdicts must be raised before the jury is excused.”). Had the Philippe
Restaurants not also invited the error, these instances of waiver would have at least
limited the district court’s consideration of this issue to a review for plain error.
Fed. R. Civ. P. 51(d)(2) (“A court may consider a plain error in the instructions
that has not been preserved as required by Rule 51(d)(1) if the error affects
substantial rights.”); Landsman Packing
Co., 864 F.2d at 726 (recognizing an
exception to the requirement that a party object “where it is necessary to correct a
fundamental error or to prevent a miscarriage of justice.”)
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It is not entirely clear whether the district court viewed the inclusion of
Michael Chow on the verdict form as a plain error it needed to correct, if the court
simply found that the evidence did not support an award of damages in Michael
Chow’s favor, or both. In any of these events, we conclude that the district court
erred in setting aside the jury’s verdict.
On its face, the verdict is not clearly duplicative. The jury awarded different
amounts to TC Ventures, Inc. ($520,541) and to Michael Chow ($500,000), an
indication that the jury intended to award different damages for the different types
of loss sustained. The award to TC Ventures, Inc. appears to be based on a
calculation of its lost profits, while the award to Michael Chow may reflect an
estimate of the lost value of his ownership stake in the restaurants. While
awarding lost profits to both plaintiffs or awarding one plaintiff both types of
damages might have been duplicative, the awards here are not.
This view would not be inconsistent with the district court’s instructions to
the jury. 5 The district court’s damage instructions directed the jury to decide as to
each restaurant-plaintiff whether to award damages for lost profits, reduced sale
value, or the ill-gotten profits of the Philippe Restaurants. It was not unreasonable
or inconsistent for the jury to conclude that this general damages instruction would
5
We acknowledge that including Michael Chow in both the verdict form and the jury
instructions may have been the best way to alleviate the potential for confusion.
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apply so that they could choose among those measures of damage as to Michael
Chow and choose to award him the lost value of his investment. 6
Finally, Mr. Chow did present evidence at trial that would support an award
of damages against Stratis Morfogen and in favor of Michael Chow. As discussed
above, there was evidence of a number of statements attributable to Morfogen that
the jury could view as false advertising and deceptive conduct. See Babbit Elecs.,
Inc., 38 F.3d at 1184 (“[A] corporation officer who directs, controls, ratifies,
participates in, or is the moving force behind the infringing activity, is personally
liable for such infringement without regard to piercing of the corporate veil.”)
Though Mr. Chow indeed focused at trial on the damage to the restaurants,
Michael Chow did testify (albeit briefly) that the Philippe Restaurants’ conduct
impacted the sale value of the Mr Chow restaurant on 57th Street. From that
evidence, a reasonable jury could have decided to award him some amount for that
drop in value.
We recognize that the evidence was not overwhelming, that the jury
instructions and verdict form were not perfect, and that the parties did a disservice
6
On the other hand, Mr. Chow’s argument that the jury had intended to apportion
damages does not hold water. The jury was specifically instructed not to allocate the amount of
damages between or among the defendants. Mr. Chow has provided no legal or factual basis to
apportion, for instance, lost profits.
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to the district court with their changing positions. 7 But we cannot say that no
reasonable jury could have awarded damages in favor of Michael Chow and
against Stratis Morfogen based on the evidence at trial. Moreover, the Philippe
Restaurants invited such an award, and we are not inclined to relieve them of it.
Thus, we conclude that the jury’s finding in favor of Michael Chow and against
Stratis Morfogen in the amount of $500,000 should be reinstated.
IV. CONCLUSION
We affirm the district court’s grant of summary judgment on Mr. Chow’s
statutory unfair competition claims and exclusion from trial evidence of the
Philippe Restaurant’s alleged illegal compensation practices. We also affirm the
district court’s grant of judgment as a matter of law on Mr. Chow’s claim for trade
secret misappropriation based on the statute of limitations. Further, we affirm the
district court’s denial of the Philippe Restaurants’ post-trial motion for judgment as
a matter of law in favor of Davé 60 NYC, Inc. We reverse, however, the district
court’s setting aside of the jury’s verdict in favor of Michael Chow and against
Stratis Morfogen. We remand to the district court to reinstate the verdict in
Michael Chow’s favor and for other proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART AND REMANDED.
7
We have considered whether, due to the confusion over the inclusion of Michael Chow
on the verdict form, a new trial on damages is required, but have concluded that the correct result
is to reinstate the jury’s verdict.
20
