CHICAGO (Legal Newsline) - The New York lawyer who has made his name suing over what some defendants and judges believe are trivial matters on food packaging has revealed just how busy he's been.
After a Chicago federal judge dismissed a lawsuit over a lack of milk fat in caramel Nips hard candies, Spencer Sheehan was told to produce his track record. "A losing streak should tell you something," Judge Steven Seeger said on April 6
For Sheehan to be afforded the chance to file an amended Nips complaint, he needed to show that his cases weren't a waste of courts' time. On April 14, he submitted a spreadsheet with all his cases filed since January 2020.
The sheet shows 440 lawsuits since Jan. 7, 2020, and includes whether he faced a motion to dismiss and whether that motion was granted.
Nearly 100 times defendants have filed motions to dismiss that were granted. In other cases, he defeated the motion or settled the case, while other cases have yet to see a motion to dismiss.
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.
"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," Seeger wrote.
"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 added, noting an exception in a case over butter spray that did not contain butter.
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.