CHICAGO (Legal Newsline) - Only a lawyer determined to file "meritless" class action lawsuits would think a bag of cheese curls should contain actual jalapeno poppers, the maker of that snack is arguing.
Herr foods Incorporated filed a motion to dismiss Jan. 27 in Chicago federal court as it fights a proposed class action brought by Spencer Sheehan, the New York lawyer who has filed hundreds of cases over food packages.
Herr's says his cases "rely on unreasonable or fanciful interpretations of product labels." The suit against Herr's says consumers are led to believe the bagged jalapeno popper-flavored cheese curls would contain actual jalapeno poppers because of a picture of a jalapeno on it.
"No reasonable consumer would believe that a bag of cheese curls contained actual jalapeno poppers," the motion says. "Similarly, no reasonable consumer would interpret the front label of the jalapeno popper flavored cheese curls as a statement that the product contained no artificial flavoring."
Sheehan's plaintiff is Jennifer Forlenza, who alleges product's label pictures a jalapeño and cheese along with the words which makes consumers believe the taste is derived from these ingredients when its seasoning contains artificial flavors.
Forlenza alleges that consumers reasonably expect the cheese curls to contain jalapenos filed with cheese when they actually contain green bell pepper powder and chipotle pepper "seasoning" to give its flavoring.
She claims Herr Foods has sold more of the product at higher prices and that the product is worth less value than represented by the defendant. Forlenza also claims Herr Food's actions constitute fraud as well as negligent misrepresentation and breaches of express warranty.
Herr's is represented by Matthew Hennesy of Barley Snyder in Lancaster, Pa., and Mark Horwitch and Amanda Catalano of Tabet DiVito & Rothstein in Chicago.