A fishing boat is moored in calm blue waters beneath a clear horizon.
NEW ORLEANS - A man who says he overpaid for frozen fish advertised as local catch can proceed with a class action against a Mississippi restaurant and a seafood wholesaler, an appeals court ruled, finding sufficient evidence from a criminal prosecution that tons of imported seafood was falsely advertised as fresh.
Mary Mahoney’s Old French House and Quality Poultry & Seafood were criminally indicted over a years-long scheme to pawn off more than 29 tons of fish imported from Africa, India, and South America as Gulf Coast red snapper. They all pled guilty paid $1.5 million in fines and forfeiture in 2024.
Diner Todd McCain followed up with a racketeering lawsuit claiming he dined at the Biloxi restaurant three times between 2013 and 2018 and overpaid for mislabeled fish. A trial judge dismissed his case, ruling he ate the fish “without complaint or concern” and couldn’t claim he paid for fish he wouldn’t have otherwise purchased. The Fifth Circuit previously ruled that airline passengers couldn’t sue Boeing for tickets they say they wouldn’t have bought had they known about the safety defects on 737 Max planes.
Wrong analogy, the Fifth Circuit Court of Appeals ruled in an Oct. 16 decision reinstating McCain’s case. While courts have thrown out class actions like the Boeing lawsuit, that is because the plaintiff can’t prove a particularized injury.
Plaintiffs also lost out trying to sue over baby formula based on claims one of multiple factories had produced contaminated products, or consumers who worried they had purchased non-Kosher beef from a slaughterhouse that coerced its workers into certifying 70% of cows as kosher. In those examples, the Fifth Circuit said, plaintiffs claimed they overpaid because of a perceived risk that may or may not have come true.
In McCain’s case there was solid evidence of a long-running and pervasive scheme to mislead diners into purchasing frozen African Lake Victoria Perch, Suriname Triple Tail and Unicorn Filefish from India that was advertised as fresh local red snapper. The better analogy was a case upholding a class action over insurance policies that falsely promised access to a list of in-network medical providers, the court said.
“McCain alleged that a single restaurant mislabeled over 29 tons of fish over approximately six years,” the court concluded. These quantities can plausibly support an inference that fish entrées at Mahoney’s “were systematically and routinely mislabeled and overpriced.”
