Diner seeks to revive lawsuit against famous Mississippi restaurant over fish fraud

Todd McCain is seeking to bring a class action against nationally lauded Mary Mahoney's in Biloxi, Mississippi, which in 2024 pleaded guilty to conspiring to sell cheap imported fish as expensive locally caught seafood.(CN) — A diner asked the Fifth Circuit Monday to restore his putative class action against renowned Mississippi restaurant Mary Mahoney’s Old French House, which has pleaded guilty to passing off frozen imported fish as locally caught fish.Todd McCain claims he dined at the Biloxi, Mississippi, restaurant multiple times while the fraud was ongoing, ordering what he believed to be locally caught snapper and red snapper. He wants to bring a class action against Mary Mahoney’s, seafood wholesaler Quality Poultry & Seafood and several of the companies’ executives on behalf of a class of customers who were fraudulently sold foreign fish.Last year, a Mississippi federal judge dismissed McCain’s lawsuit, ruling he hadn’t shown a sufficient likelihood that he specifically was served the fraudulent fish.McCain’s attorney Tad Bartlett, from the aptly named law firm Fishman Haygood, L.L.P., told a three-judge Fifth Circuit panel Monday that his client has plausibly claimed that all or almost all of the snapper and red snapper the restaurant served during the relevant time period was fraudulent. He pointed to the sentencing transcript for Mary Mahoney’s manager in the criminal proceedings, where the judge said there was an “unbroken chain” of fraud.But attorney Matthew McDade, representing Mary Mahoney’s, told the panel that Bartlett is taking court records from the criminal case out of context and that McCain is asking the court to “expand the reach of Article III to confer standing to somebody on a theoretical injury.”“Just because the defendants violated federal law does not automatically confer standing to the plaintiff in this instance,” McDade said.In 2024, Mary Mahoney’s and Quality Poultry & Seafood pleaded guilty to wire fraud and conspiring to mislabel seafood. Mary Mahoney’s was ordered to pay a $149,000 fine and $1.35 million in forfeiture. The restaurant’s co-owner and manager, Anthony Charles Cvitanovich, who pleaded guilty to misbranding seafood in connection with the scheme, received four months of home confinement and three years of probation and was ordered to pay a $10,000 fine.However, prosecutors declined to pursue restitution for victims of the fraud, saying it would be too difficult to identify, locate and notify all of them.Following this, McCain brought his lawsuit seeking compensation for himself and other defrauded diners. He sought to either be refunded the entire cost of his meals, asserting he would not have ordered the food had he known he was not actually being served locally caught snapper or red snapper, or alternatively to be paid back the difference in value between the fish he ordered and the fish he was served.In dismissing McCain’s lawsuit, Senior U.S. District Judge Louis Guirola ruled McCain had not plausibly claimed he was injured by the fraudulent scheme.“McCain paid for fish, which he may have sincerely believed to be local snapper or red snapper. However, he consumed the meal without complaint or concern. Apparently satisfied with the fare, he paid the bill, again without question or objection. It was not until some years later that he suspected that he may have been served and eaten something other than local snapper or red snapper,” the George W. Bush appointee ruled in rejecting McCain’s claim for a full refund.“Notably McCain returned on two separate occasions to again eat at Mary Mahoney’s restaurant. As before, he consumed and paid for the fish dinner without protestation. Thus, on three separate occasions McCain ordered, ate and paid for three, apparently satisfactory, fish dinners.”The judge found the fact “that McCain now alleges that he regrets his purchases and was injured by paying for fish he would not have otherwise purchased” doesn’t show a “cognizable injury.”With regard to McCain’s claim for the difference in price, Guirola found he had not sufficiently shown he was one of the diners who was served the fraudulent fish.U.S. Circuit Judge Carolyn King, a Jimmy Carter appointee, U.S. Circuit Judge Jerry Smith, a Ronald Reagan appointee, and U.S. Circuit Judge Irma Ramirez, a Joe Biden appointee, made up the Fifth Circuit panel. The judges took the case under submission and did not indicate when they would rule.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads