CHICAGO (Legal Newsline) - The class action lawyer who has gained fame, or possibly infamy, for his hundreds of food lawsuits (like one over a lack of real jalapenos in jalapeno popper-flavored cheese curls) now must prove he's worthy of being allowed to continue.
Chicago federal judge Steven Seeger on April 6 issued a short, harsh order concerning Sheehan's lawsuit that claims consumers expect caramel Nips hard candies to have more milk fat than they do. Seeger tossed the case in March, rejecting Sheehan's arguments that were partly based on dictionary definitions of "caramel."
Sheehan is known for his novel concepts of consumer deception and has filed cases around the country, with some of them angering defendants and perplexing judges. The history of Legal Newsline's coverage of his practice can be viewed here.
"At some point, a losing streak should tell you something," Seeger wrote.
"By all appearances, attorney Sheehan keeps bringing cases about how to read product labels, but he can't seem to read the tea leaves from the judiciary."
The order comes as Seeger decides whether Sheehan should be permitted to file an amended complaint in his Nips lawsuit. Seeger has questions whether Sheehan's filings comply with the Federal Rules of Civil Procedure.
"By the look of things, attorney Sheehan is filing consumer fraud cases over and over again, seemingly covering just about every aisle in the grocery store, without much success," Seeger wrote, noting an exception in a case over butter spray that did not contain butter.
If Sheehan wants to continue pursuing the caramel Nips case, he must produce an Excel spreadsheet by April 30 with a list of all consumer fraud cases he has filed in all federal courts and include whether they survived their respective motions to dismiss.
Sheehan first gained notoriety as the "vanilla vigilante," filing a host of lawsuits that claimed vanilla flavoring in products did not contain traditional vanilla.
Sheehan has sued because the strawberry flavoring in Pop-Tarts comes from pears and apples and is dyed red. He complained Bagel Bites have cheese that is a blend made with skim milk and feature tomato sauce that contains ingredients consumers wouldn't expect (the judge hearing that case called his claims "unreasonable and unactionable").
An Illinois Southern District judge called him a "serial filer of frivolous litigation."
Pepperidge Farm, fighting a case that says its Harvest Wheat crackers should contain more whole wheat flour than enriched whole wheat flour, said the suit couldn't pass the standard that a "reasonable consumer" would be misled. The basis of the suit should depend "on the likely reaction of a reasonable consumer rather than an ignoramus," it argued.
In March, Sheehan lost a lawsuit that said the fudge in fudge-covered Oreos should adhere to traditional definitions of "fudge" by containing more milk fat and not palm oil and nonfat milk.
"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." Judge Paul Crotty wrote.
A month earlier, he lost a case against Coca-Cola over pina colada-flavored Fanta that said consumers expect real pineapple and coconut, not flavoring.
Mondelez Global has already asked an Illinois judge to penalize Sheehan, filing a motion to dismiss and a motion for sanctions simultaneously in February in a case that says gum-chewers expect mint-flavored Trident to contain real mint. The judge in that case said the motion for sanctions is premature and would revisit it, if necessary, once he rules on the motion to dismiss.
"Plaintiff's counsel tends to file the same copy-and-paste complaint in all his many cases, regardless of how frequently his claims have been dismissed," the motion for sanctions says. "Courts have repeatedly admonished him for doing so and have threatened sanctions.
"In cases like this one, sanctions are appropriate to deter serial filers."
Sheehan does have some successes, like his inclusion on the team of lawyers who won a $9.5 million settlement over whether Vizzy hard seltzers expect them to be healthier than they are. He and two other firms are set to take $2.5 million in fees.