NEW YORK (Legal Newsline) - Buyers of fudge-covered Oreos don't expect a product that fits a class action lawyer's definition, a federal judge has ruled in tossing a case over the cookies.
New York federal judge Paul Crotty ruled on March 8 to grant Mondelez Global's motion to dismiss the lawsuit filed by attorney Spencer Sheehan, a prolific New York lawyer who has filed hundreds of class actions over similar representations made by food companies.
In this case, Sheehan alleges consumers expect a fudge made with milkfat - not palm and palm kernel oil and nonfat milk.
"(N)ot a single source claims that milk and butter are essential fudge ingredients or that milkfat is necessary to make fudge," Judge Crotty wrote.
"Indeed, Molly Mills - who Plaintiff identifies as 'one of today's leading authorities on fudge' - describes fudge as 'most commonly made from butter, sugar and chocolate.'"
Sheehan's assertions that vegetable oils are used in place of dairy ingredients to reduce costs undercut his argument.
"He vaguely suggests that this is 'inconsistent with what consumers expect,' but provides nothing to support why a reasonable consumer would not expect ingredients that, in Plaintiff's own words, are 'often used' in fudge."
Most of Sheehan’s food lawsuits boil down to whether a “reasonable consumer” would be misled by a product’s packaging. His cases against companies that produce fudge snacks – like Hershey Hot Fudge Topping, Duncan Hines Chewy Fudge Brownie Mix and Entenmann’s Chocolate Fudge Iced Cake – complain the fudge used doesn’t adhere to the traditional description of it.
Mondelez filed its motion to dismiss in June, saying consumers expect the Oreos to taste like chocolate and are covered in a chocolate-flavored coating.
Sheehan has sued companies around the country, with some of the cases angering defendants and perplexing judges.
However, there are successes - like a settlement over vitamin C claims on Vizzy hard seltzers that could net Sheehan and other lawyers $2.5 million.
The gist of Sheehan's strategy is to find a product that features a certain ingredient on the front label but doesn't actually include that ingredient, then file suit on behalf of a customer who claims he or she expected that ingredient.
Recent examples include bagged cheese curl snacks called Jalapeno Poppers that do not include jalapenos and a rejected case over Lorna Doone cookies that were allegedly marketed as Scottish but contained no butter - like a traditional Scottish shortbread cookie would.