SPRINGFIELD, Ill. (Legal Newsline) – Language against a New York lawyer appears to be getting stronger as defendants tire of fighting lawsuits over their packaging and judges reject his claims.
Spencer Sheehan has drawn considerable media attention as an attorney taking on the food industry with novel ideas for class actions, like the fudge in cookies not adhering to the traditional definitions of fudge and the strawberry-flavored filling in Pop-Tarts being made from pears and apples and dyed red.
His cases are often filed as prospective class actions, which leads some defendants to settle quickly to avoid lengthy and costly litigation. But those who fight point to the standard that must be proven in his claims – that a reasonable consumer would be misled by a company’s claims.
On May 6, a Wisconsin federal judge tossed Sheehan’s lawsuit against Kraft Heinz Food Company that alleged Bagel Bites have cheese that is a blend made with skim milk and tomato sauce that contains ingredients consumers wouldn’t expect.
Judge William Conley joined colleagues in Illinois and New York who rejected Sheehan’s arguments, calling his claims “unreasonable and unactionable.”
Ricola USA is pointing at that ruling as it fights a Sheehan case. He is suing the company because it says its cough drops are made with “Swiss Alpine Herbs.”
The packaging notes menthol is the active ingredient. Sheehan says consumers expect the herbs to serve some cough-suppressant function.
“Plaintiff’s theory is implausible and absurd,” the company’s June 21 motion to dismiss says. “It is undisputed that the Ricola product is made with Swiss alpine Herbs. Ricola never makes any representation about the function of these Swiss Alpine Herbs.”
An herb mixture is listed as an inactive ingredient. Herbs in the mixture include elder, horehound, hyssop, lemon balm, linden flowers, mallow, peppermint, sage, thyme and wild thyme.
“Respectfully, Plaintiff’s claim here is yet another in a string of ‘unreasonable and unactionable’ interpretations of product packaging advanced by her attorney throughout the country, and her complaint should be dismiss,” the motion says.