On a recent evening at Mr Chow, the venerable Chinese restaurant on East 57th Street that has catered to free-spending New Yorkers since 1978, a chef wheeled a metal trolley onto the balcony overlooking the dramatic sunken dining room. Taking a large ball of dough in both hands, he began to pull and massage it, thwacking the mass against the butcher’s block, then doubling it over, letting it twist, stretching, thwacking, twisting, doubling, while the room watched in silence.
This was the “noodle show,” a demonstration of starchy prowess that has occurred every night for 44 years.
The Observer was seated at a two-top, doing research (the best kind) on the federal lawsuit then being tried in Miami pitting Mr Chow against the upstart Philippe by Philippe Chow, a strikingly similar chain started in 2005 by a longtime member of Mr Chow’s New York kitchen staff.
There’s a noodle show at Philippe as well—performed by Mr Chow’s former noodle man, in fact—but that wasn’t what had the guests in tight minidresses pulling out their point-and-shoots when The Observer arrived a little later that same evening (stashing our Mr Chow doggie bag on the way in). Despite Michael Chow’s contention that Philippe had ripped off his concept wholesale, the difference in ambiance was striking.
Whereas Mr Chow was refined and understated, the vibe at Philippe could be described only as bumpin’. The bar was tightly packed. Servers wore red Chuck Taylors. Smashing Pumpkins was blaring on the PA. A woman in a tube top was sitting on a banquette in the entryway, eating out of a take-out container. Everyone was texting.
The excitement that evening turned out to be on behalf of the several New York Giants who were following up their Canyon of Heroes moment with a celebratory dinner in an upstairs dining room, while a photographer working for Cîroq vodka captured the scene.
We approached defensive end Osi Umenyiora to ask what the appeal was. “Great restaurant,” he said.
Maybe so, we thought, but whose?
The Chicken Satay at Philippe—flattened ribbons of tender breast meat the color of Flamin’ Hot Cheetos, gently perforated with bamboo skewers and bathed in a milky, khaki-color gravy—seems an unlikely object of interest for a federal court. It’s exquisitely bland, the latex baby-binky of premium appetizers.
Yet the Chicken Satay, and in particular its marked similarity to the Chicken Satay served several blocks away at Mr Chow, was one of the key matters in the suit. (The 18 pages of testimony about the recipe, which was created at Mr Chow’s original restaurant in London in 1978, remain under seal, but several details that emerged over the course of the trial indicted that the secret sauce involves a lot of cream and a widely available Thai “spice packet.”)
Michael Chow’s complaint, which sought $21 million in damages, alleged that the team behind Philippe, including chef Philippe Chau, restaurateur Stratis Morfogen (also behind the well-received Ciano) and several codefendants, appropriated the Satay recipe and 11 other Mr Chow standbys, the “modern” decor of Mr Chow’s restaurants and even the name Chow—thereby engaging in deceptive trade practices, swiping trade secrets and infringing on the Mr Chow trademark.
In essence, the suit claimed, they’d tried to become Mr Chow—the Invasion of the Body Snatchers of haute Chinese cuisine. “They want to not just clone me, they want to take the whole thing,” Mr. Chow testified on the stand, sporting his trademark owlish glasses and a bespoke Hermés suit. “They want to wipe me—just replace me completely, including my personal identity.”
Philippe countersued, seeking $25 million for defamation following the description of its chef by Mr Chow’s former attorney as a “fraud” in a Miami Herald article. They also challenged Mr Chow’s trademark—“that knife that he uses to try to chop up the competition,” as defense attorney Anthony Accetta put it—claiming the company neglected to defend it. (They cited, among other things, the failure to use a period after M-r.)
Last week, following a mouthwatering four-week trial that featured a T.I. song played in open court and touched on everything from the elusive Qiao-mer, which Mr. Chow described as “know-how, trick, knack, technique, and kung fu” of Chinese cookery, to the difference between a banquette and a baguette (a distinction that bedeviled Mr. Accetta), the jury delivered a mixed verdict. While finding in favor of the defendant on the issues of trademark infringement (which has a three-year statue of limitations) and stealing recipes, they determined that the Philippe team had engaged in “false advertising” and “unfair competition by deceptive conduct.” The defendants were ordered to pay $1 million. Philippe’s counterclaims were rejected by the jury.
Mr Chow’s public relations firm promptly unfurled a press release that hailed the decision as “a complete victory,” in the words of Mr. Chow’s attorney, powerhouse entertainment litigator Bert Fields, best known for representing Jeffrey Katzenberg in his suit against the Walt Disney Company.
Mr. Morfogen told The Observer he was having what he called a “celebratory lunch” with his partners and legal team at a spot near the courthouse when his cell phone began buzzing with texts—friends writing to offer their condolences.
“I said, ‘You got to be kidding me!’” Mr. Morfogen recalled. “That’s Bert Fields’s ultimate spin. If I had lost 15 out of 16 counts, my response to the press would be, ‘I respect the justice system. We lost and we’re going to appeal.’ But don’t embarrass yourself. Have a little dignity.”
Playing catch-up, the Philippe team then issued a press release of its own, in which Mr. Accetta declared that the “landslide victory … serves as a testament to the American dream.” Mr. Morfogen followed up tweeting a link to the Philippe version of events to everyone who tweeted press reports on the case.
He also sent out an open invitation to a victory party at Philippe’s New York location, after which he ended the day on a combative note.
“@PhilippeChow was very touched by the huge turnout tonight ! F the ‘wire tap’ FIElDS and the PUPPET michael chow !” he wrote at 4:21 am, following up a few minutes later with a dig at Mr. Chow’s daughter: “china chow is a joke! Take the loss and be silent!” His wife, former Vogue editor Filipa Fino, got into the act too, tweeting, “Poor @mrchowdining. Cant accept protege success.Would MrBalenciaga b upset at Nicolas? Can’t we have both?”
Mr. Morfogen’s wiretapping reference recalled the case of private detective Anthony Pellicano, who was convicted in 2008 of eavesdropping on various celebrities. Mr. Fields was one of Mr. Pellicano’s clients, but he wasn’t accused of wrongdoing. “I was never charged with anything,” Mr. Fields told The Observer. “I was never even a target of the investigation.”
As to the contention that Philippe actually won the case, he said, “You don’t count counts! When I file a lawsuit, I often have 10 different theories on which I can win. Would we like to have gotten greater damages? No question about that. But who won is about who got the damages, who paid the damages, who was found to have committed a wrong, who was found not to have. It’s just stupid to say otherwise.”
Countered Mr. Accetta: “Of course we’re the prevailing party. It was the best verdict I could have asked for. We prevailed on a majority of the main issues.”
The case dates back to the summer of 2005. At the time, Mr. Chau was working in the kitchen at Mr Chow, where he’d held a variety of jobs since 1980. A note about his name, which was the subject of seemingly endless debate during the trial: Chak Sam Chau, who was born in Canton and testified about swimming four hours to freedom in Hong Kong, towing a friend behind him, was dubbed either Philippo or Philippe or both by Mr Chow’s then-head chef, Sik Chung Lam, when he began working in the kitchen at age 16. In 2006, he became a naturalized citizen, changing his legal name to Philippe Chow Chau. (Chow, Chau and Zhao are all translations of the same Chinese character.)
The plaintiffs asserted that the name change was part of a deliberate campaign to confuse the public. The defense insisted that the switch had been initiated—though not completed—before the restaurant plans got underway. (Philippe Chow Chau directed questions to Mr. Morfogen.)
Over the years, Mr. Chau worked his way up to fryer, dim sum man and chopper, finally becoming head chopper-expediter, a title that does not fully capture the significance of his role. Though he used a translator in his court appearances, Mr. Chau was one of the better English speakers in the back-of-house, a valued go-between between the restaurant’s management and its kitchen staff. He also substituted for most other positions, and so learned to make just about every dish on the menu.
When Chef Lam retired, Mr. Chau fully expected to be named to the top position. Instead the gig went to Kwok Hor, who had been recruited in Hong Kong and trained at the London restaurant, according to Mr Chow’s usual practice. Mr. Chau was despondent. In one of the trial’s more dramatic moments, he recalled his frustration. “My family was not very happy with what happened because I had been working in that restaurant for 22 years, and everybody thought that I would be the one [to be promoted to] head chef,” he said, bursting into tears. “I do not understand why Michael Chow [treated] me like this. My wife thought that I would be the chef after Lam’s retirement.”
After a two-minute break, he returned to the stand and apologized. “I really feel so bad,” he said. “My heart hurts me so bad.” (Interestingly, the moment recalled Mr. Fields’s most famous case, which began when Mr. Katzenberg also felt passed over for a top job. A turning point in that trial occurred when Mr. Fields drew out Michael Eisner’s admission that he just might have called his No. 2 a “little midget.”)
Mr. Chau worked under Chef Hor for two years. Then one day in the summer of 2005, a busboy slipped him a business card from a customer. It said Au Bar on it. Mr. Morfogen, who had been a regular customer at Mr Chow for a decade, was in talks with another upscale Chinese bistro, Paris’s Davé, to open a New York branch, and he was looking for a chef.
Mr. Chau called the business card “a gift from God.”
He tendered his resignation not long after, and in December 2005, Philippe by Philippe Chow opened its doors on East 60th Street. Like Mr Chow, the space was chic and minimalist, and the menu featured a number of Mr Chow’s “signature” dishes, albeit with a few key differences: Chicken Joanna became Chicken Jo Lau, Ma Mignon became Me Mignon, and With Three became Three Within. Such talmudic nuances recalled the 1988 Eddie Murphy comedy Coming to America. “Look, me and the McDonald’s people got this little misunderstanding,” explains the owner of an independent burger joint. “See, they’re McDonald’s. I’m McDowell’s. They got the Golden Arches, mine is the Golden Arcs. They got the Big Mac, I got the Big Mick …”
As the New York Post wrote in a review of Philippe, “It looks like the most flagrant case of culinary cloning since Peter Luger deserters set up shop in Manhattan.”
Indeed, such restaurant feuds are nothing new. There is, for example, the Famous Ray’s-versus-Original Ray’s showdown, the Manganaro’s rift, and the curious cockfight between Park Slope’s Los Pollitos and Los Pollitos II. Recently, when Mario Batalli got wind of an Otto pizzeria in Portland, Maine, that seemed to overlap with his Otto in New York and Vegas, he tweeted, “these folks are d bags and thieves,” deleting the message in short order.
Rebecca Charles, owner of Pearl’s Oyster Bar, has sued two former colleagues who left to open similar restaurants, Mary Redding (Mary’s Fish Camp) and Ed McFarland (Ed’s Lobster Bar). Neither case made it to court. “Copying somebody’s business from A to Z should not be legal,” she said. “I had it happen twice. It’s unutterably painful.”
Way back in 1904, according to an item in The New York Times, a Chinese-American man named Lem Sen claimed to have invented the chop suey, which caught on like scallion pancakes, only to have it stolen by what the unnamed reporter, mimicking an accent, called a “Mellikan man.” Lem Sen sought an injunction preventing anyone else from making it the dish, supposedly telling The Times, “Now me wantee … all stop makee choop soo or pay me for alowee do same.”
Incidentally, it was just one year later that Mr. Morfogen’s grandfather, Paul Morfogen, who co-owned a restaurant called Pappas on 14th Street, introduced the Greek salad to New York, according to Mr. Morfogen. “But to say he owns it would be ludicrous,” he added.
Initially, Mr Chow was slow to act. “Why would you let me go three years and eight months?” Mr. Morfogen asked. “Not one cease-and-desist letter, not one smoke signal, not one email, not one phone call! And guess what? My wife and his ex-wife worked together!” Mr. Chow, who is now married to Eva Chow, was briefly married to Grace Coddington, later Ms. Fino’s boss at Vogue, which one imagines made for some awkwardness when the suit was filed. (Ms. Fino left the magazine in June 2011 and now runs an online magazine, Fino File.)
In explaining the apparent delay in filing suit, Mr. Chow testified he initially thought Philippe would just open in New York “and they may not last very long,” admitting he was “in some sort of denial.” Then he read news reports about Philippe planning openings in Las Vegas and L.A. As Mr Chow prepared to expand into Miami, Philippe opened “literally 100 yards away from us.”
He began to feel like the victim of “stalking,” he said, “or tailgating, like, a car.” (He has since become more proactive, suing Giuseppe Cipriani over the name of his new restaurant in Beverly Hills, Mr. C. That dispute is currently in mediation, Mr. Fields said.)
Philippe quickly gained a following in New York—in part due to its prime location (60th and Madison), its slightly more affordable food and its celebrity clientele, including Rihanna and Kanye West. (Like T.I., Wale and Young Jeezy have also called out the restaurant in their lyrics, though their tracks were never brought up in the trial.)
But the jury found that fair competition wasn’t the whole story, concluding that Philippe had engaged in a pattern of false advertising, seemingly designed to convince the public that Mr. Chau had been the real heart of the Mr Chow operation. Though Philippe’s public relations firm issued press releases touting Philippe as “the architect of Mr Chow’s menu for the past 27 years,” Mr. Chau admitted on the stand that all of the signature dishes were on the menu before he arrived. Another release asserted that the chef was “acclaimed as one of the top Asian chefs by one of the most prestigious food critics,” though Mr. Morfogen later admitted Mr. Chau had never been mentioned in any media report at all. Mr. Morfogen also boasted to the press that “we have basically their core kitchen” and stated that “60 to 70 percent of the menu is similar.”
“The feather that broke the camel’s back,” Mr. Chow testified, was his discovery that Mr. Morfogen had purchased the search term “Mr Chow” on Google, Yahoo and AOL, in a bid to direct users to Philippe instead. (The text of the sponsored links contained the term “Mr Chow” but Philippe’s address.)
“I realized that this thing is not going to stop, not going to go away, and left me no choice,” Mr. Chow said.
The battle was personal, but it was also commercial. As Philippe became one of the city’s hottest restaurants, Mr Chow’s profits in New York “dropped like a stone,” Mr. Chow said. After increases every year since 1995, they began to flag in 2006 and decreased by a million dollars every year thereafter until the lawsuit was filed. “Fifty-seventh Street is dead in the water,” Mr. Chow testified. “We survived the last three years, just barely.”
Mr. Fields said profits were better in Beverly Hills and Miami, where the lawsuit, which was filed a few months after Philippe’s launch and the week of Mr Chow’s, “took a lot of steam out of their opening.” Mr. Morfogen claimed that was the purpose of the suit all along.
The restaurant business, particularly in New York, is not an arena for gentle souls. Behind every passive-aggressive server wondering if you’ve “dined with us before” is a knife fight for survival. Margins are low, tastes are fickle, and competition is relentless. Things have only grown worse with as the stock market has fallen and web entities like Yelp, Eater and OpenTable have grown in power.
Neither Mr. Chow nor Mr. Morfogen seems to have gotten where they are without breaking a few ramekins. In 2007, Mr. Chow was sued by three former employees for harassment. One, now a partner in Philippe, claimed he had been forced to lie on the floor and humiliated during a staff meeting. The suit also claimed that Mr Chow had failed to pay overtime and distributed tips to ineligible employees through a complicated point system, in violation of labor law. The case was settled out of court for an undisclosed sum.
Mr. Chow could not discuss the case due to the terms of the settlement. Mr. Fields, however, maintained that “Mr. Chow never harassed anyone.”
Meanwhile, several former associates of Mr. Morfogen’s, who declined to speak on the record, were highly critical of his business methods, variously describing him as “manipulative,” “abusive” and “bullying.” More than one called him “the devil.”
“That’s their opinion,” Mr. Morfogen said. “Look, I’m a boss that has 300 employees. I’m not running for a popularity contest, I’m not running for mayor. If I’m a bully I’m a fair bully. That courtroom was full of employees I’ve been good to.”
A former manager of Philippe, Tim Pappas, said working with Mr. Morfogen was “a great experience,” adding, “He gave me an opportunity to shine, and I did.” (Mr. Pappas is set to open his own restaurant, Neraï, in the spot formerly occupied by Oceana.)
Restaurateur Michael Stein, whose late father, Howard Stein, was a nightlife impresario who owned Xenon and Au Bar and later brought in Mr. Morfogen as a partner, told The Observer that Mr. Morfogen once called him screaming. “He threatens he’s going to kill me, saying I stole from Au Bar,” Mr. Stein recalled, insisting that he had done no such thing.
Mr. Morfogen scoffed at the story. “Howard was heartbroken, saying, ‘My son stole from me,’” he said. “I was touched by that. It wasn’t my money. I told Michael, ‘Don’t come back to Au Bar.’ I don’t say ‘kill.’ That’s not in my vocabulary. What I probably said was, ‘If you set foot in here I’ll get a lawyer and have you kicked out.’”
The plaintiffs in Chow v. Chau presented evidence that Philippe may have engaged in “unlawful compensation,” or paying employees under the table. Attorneys deposed a number of workers who pleaded the Fifth Amendment to avoid answering questions about the matter, including Mr. Morfogen’s then-business partner Michael Reda. Ultimately, the judge ruled the allegations prejudicial and irrelevant to the case.
Mr. Morfogen called the charges “allegations” and “smoke screens.” He added, “I’ve been investigated by the IRS, the state sales tax, and our restaurants are still operating, and we have a clean bill of health. A couple of chefs would come in and get cash to go down to Chinatown and buy supplies. That’s the only cash, and now it’s all done by check. But that’s not my area. I run the front of the house. Mike Reda told me he didn’t do it, and I believe him. I was against him taking the Fifth Amendment, but when I asked him why, he said his personal attorney advised him on it.”
(Attempts to contact Mr. Reda were unsuccessful; Mr. Morfogen said he is no longer involved with Philippe.)
“My opinion is the issue was used to intimidate, harass and slander my client,” Mr. Accetta told The Observer, adding, “It’s not relevant to this case.”
It may seem strange that at a time when Asian cuisine in New York has come to be defined by colorful figures like pork-belly provocateur David Chang and Eddie Huang, the bad-boy of bao—chefs who serve up artery-clogging delicacies with a touch of aggression—such a hard-fought battle has been waged over a style of cuisine that foodies dismiss as old-hat and critics routinely savage as greasy and bland.
“Not to say they’re not good restaurants,” hedged Danielle Chang, creator of the Asian food festival Luckyrice, who has eaten at Mr Chow and Philippe. “It’s a different brand of Asian food, dressed up for American palettes. I don’t mean to be derogatory, there’s nothing wrong with it.”
“The vibe and the menu seem very old-school and outdated now,” said Jennifer 8. Lee, author of The Fortune Cookie Chronicles, who admitted she has never been to either restaurant. Ms. Lee attributed the success of Chinese food in America to precisely the sort of borrowing at the heart of the case. “Chinese food has always been iterative,” she said. “That’s how General Tso’s Chicken and fortune cookies got spread. It’s like open-source innovation. In that sense, this situation is part of a long tradition, though it is a little more sketchy.”
Mr Chow has had a truly spectacular run. The Beatles and the Stones became regulars after the first restaurant opened in London in 1968 (John Lennon’s last supper was eaten at Mr Chow on 57th Street). The Beverly Hills location, which launched in 1973, became a favorite power spot (it is still a regular location for those TMZ paparazzi videos). The New York restaurant was a favorite of the Warhol crew and later became a draw for hip-hop artists—all with a menu that has little changed in more than four decades.
That said, celebrity patrons are not known for adventurous culinary taste (e.g., Elaine’s, Michael’s).
If the outcome of Chow v. Chau does anything, it will be to help Mr. Chow preserve this astonishing legacy—one that was bound to spread, legally or otherwise. In an email, Mr. Chow told us, “With my restaurant, I bridged the palates of the East and the West and have made this my life’s work. I felt I had to stand up for myself and my life’s work when I was wronged, and I have done that. A Miami jury awarded me over a million dollars in damages, and I feel vindicated. I now want to move on and continue to focus on my business.”
For his part, Mr. Morfogen vows to appeal the verdict, insisting that the jurors misunderstood how Google advertising works. Meanwhile, with locations in Miami, Manhattan, Long Island, Mexico City, West Hollywood and Boca Raton, he is again looking to expand, eyeing Las Vegas, as well as Fort Lauderdale, Dallas and Dubai.
With the jury’s sanction, all of them will serve Green Prawns, Chicken Satay and House Me Mignon.