A bitter recipe for lobster tales
When a sous-chef takes his expertise, and a few choice menu items, across town to start a restaurant of his own, a brouhaha ensues.
NEW YORK — Lobster shacks don't dot the streets in Manhattan as they do in coastal Maine, and it's unlikely those in the Pine Tree State would stir up the tempest gathering in downtown's chowder cups.
Indeed, there aren't many places to get a Maine-style, mayonnaise-slathered lobster roll here, but most agree the person who perfected it, if not introduced it, is Rebecca Charles, who opened Pearl Oyster Bar in the West Village about 10 years ago. Last month she sued her longtime sous-chef, Ed McFarland, who four months ago opened Ed's Lobster Bar, a near carbon copy of her restaurant a few blocks away in SoHo.
And while restaurant brouhahas boil as often as the soup du jour in this city of hyper-competitive gourmands, Ms. Charles' flexing of her – well, her legal mussels – has drawn international attention for claims of intellectual theft. Pearl's décor, menu, and business concept – all of it, she says, has shown up again 16 blocks southeast. In what some see as an unprecedented legal claim, her lawsuit asserts that Mr. McFarland owed Charles a loyalty that involved putting business-related responsibilities above personal gain.
It's a tale of resentment, betrayal, and high-stakes legal wrangling that has the food world, according to the popular foodie blog Eater, "absolutely transfixed" – and the restaurateurs' feelings as raw as a platter of shucked Malpeques. Some worry the suit could deter apprentice chefs from setting out on their own. Others see a need to protect restaurant concepts from corporate knock-offs, a growing trend in which big pockets copy local establishments and expand them into chains.
As a small 54-seat "bar," Pearl Oyster has the feel of a bustling gourmet diner with a coastal New England décor. Antique oil lamps, fishery signs, and gray wainscoting, Charles explains, evoke her own memories of growing up on Grooch's Beach in Kennebunkport, Maine. Patrons sit at the white marble countertop in the restaurant's center, or at the narrow marble bar along the wall. There are a few more traditional tables in the side room, and during peak times there's always an hour-long wait. Part of the charm here is jostling for elbow room while bantering with a harried but witty staff.
"It's not a lawsuit about a lobster roll recipe," says Charles. "Thirty-one out of 34 recipes on his menu are mine. They've stolen my restaurant's identity and have plans to make a great deal of money off it, and that's not right, and I plan to do something about it."
In response, McFarland called a press conference at his own New England-style restaurant. Such is Pearl Oyster's reputation that, even in a city with almost 19,000 eateries, television and print outlets showed up. His attorney by his side, McFarland said, "I am deeply saddened to learn that Rebecca Charles has brought an action against me. I believe her action has no merit. I harbor no ill will and wish her safely to port." (McFarland would not give an interview without, as a manager explained, a list of questions beforehand.)
Even so, Ed's Lobster Bar is startlingly reminiscent of Pearl Oyster. The white marble bar on the right looks exactly the same as the one at Pearl, and there's a matching counter on the opposite wall; the upward-fanning "wheat straw" chairs could be made from the very same batch of straw. There's matching gray wainscoting beneath exposed brick, and a window alcove seat in front, which the suit claims was a necessity at Pearl, but a blatant rip-off at the new SoHo bar.
Though only a 20-minute walk apart, Ed's and Pearl do have different vibes, reflecting their downtown neighborhoods. Pearl is on a side street in the West Village, the erstwhile Bohemia, still a live mix of aspiring artistes and wealthy Bobos. The staff dresses like the summer help on Cape Cod – khaki shorts and Polos, usually – and the crowd is casual and talkative.
Ed's is newer and, like SoHo, pristine and refined, with a clientele more Prada than vintage. But here, too, most of the staff is dressed down in shorts and T-shirts. There was a 15-minute wait on a weeknight last week, and the bar and tables were full all evening.
These New York "bars" are hardly coastal shacks, of course, and despite the hotdog buns, fries, and mayo, and their coastal décor and townie staffs, the Manhattan version of the Maine quickie-lunch won't replace the bagel and knish anytime soon. Chunks of cracked crustaceans – a street-stand food in Maine or Maryland – remain exotic and expensive here, another of the many niches of foreign cuisine.
But while Ed's seems to copy nearly all the décor of Pearl, their trademark lobster rolls on butter-brushed hotdog buns are subtly different. Ed's adds a cup of sweet, cardamom-spiced pickles to the heap of fries, and with a bit less mayo, the roll has a sweet and tangy taste. Pearl's lobster roll is simpler and smoother, and its chunks are less stringy than Ed's.
Among the menus' similarities, Charles is especially upset about a Caesar salad recipe with English muffin croutons she says was passed down to her by her mother. Even worse, she says, McFarland has dubbed it "Ed's Caesar" on his menu. Indeed, in both taste and presentation, the salads are virtually indistinguishable.
"I built the restaurant with a series of thousands of decisions on how it should look, and worked on the recipes for years, and made it so good," says Charles. "And to have all of that snatched away, particularly by somebody who worked very closely with me, somebody who was management, the only management besides me ... it was really painful."
And while Maine diners might expect any two lobster shacks to have similar menus, many say the décor at Ed's shows, at the very least, a lack of originality. While legal observers point out that most recipes cannot be patented, some believe the suit might have merit in an era of corporate chain restaurants, and given the money at stake. While it would be difficult, if not impossible, to sue for stealing a Caesar salad recipe, says Dan Venglarik, a lawyer at Munck Butrus in Dallas, "The combination of different décor features – the white marble bar, the gray-painted wainscoting, and the wheat-straw backed chairs and bar stools – might prove a little more fruitful, but only if it can be shown to be distinctive and recognized by customers as unique to the original business."
In food, as in fashion, knock-offs are par for the course, industry experts point out. Change the buttons – or change the amount of mayonnaise – and it's technically a new dress or dish.
"What has really captured the food world is, where do you draw the line between protecting and encouraging individual creativity, and providing inexpensive goods and services available to the public?" says Judy Roth, an attorney for Charles. "Food and fashion have been somewhat unique, in that you don't have broad copy protection as you do in literary work or painting."
So they are making the somewhat novel argument that McFarland's intimate knowledge of Pearl's operations gave him a "fiduciary duty" not to profit from it – at least not to the extent that his restaurant copies Pearl. Another worry, of course, is that the partners behind Ed's Lobster will take the concept and make a chain.
"I didn't want to sue, and I know it's going to be expensive," Charles says. "But we'll see how it turns out."