CHICAGO (Legal Newsline) - One class action lawyer will likely be looking to avoid the courtroom of a certain Chicago federal judge who just tossed another one of his many lawsuits with a strongly worded ruling that could lead to financial penalties.
Judge Steven Seeger on May 15 dismissed a lawsuit alleging customers who purchased Walmart's olive oil mayonnaise were cheated because it didn't contain as much olive oil as they expected.
His ruling came four days after throwing out Spencer Sheehan's lawsuit that alleged caramel Nips hard candies didn't contain enough milkfat. Seeger promised in that case to keep an eye on Sheehan, should he file more of his consumer deception cases in U.S. District Court for the Northern District of Illinois.
And Seeger had also dismissed a lawsuit over the lemon in Polar Corp.'s bubble water in March.
"In each case, the plaintiff unsuccessfully alleged that the product misled consumers because they expected it to contain more than a de minimis amount of an ingredient advertised on the label. The same attorney filed each case," Seeger wrote in his olive oil decision.
"The case at hand is yet another spin on an increasingly unpleasant ride. It is time for the carousel to come to a halt."
In the Nips case, Sheehan was ordered to produce a spreadsheet of his consumer deception cases and whether they survived motions to dismiss. The sheet showed Sheehan has filed 440 cases since January 2020, with about 100 being thrown out after the defendant motioned to dismiss.
Seeger was frustrated with the olive oil case because the mayonnaise does, in fact, contain some olive oil. The label said it was made "with" olive oil, not "mostly" with olive oil.
But beyond the theory of the case, Seeger is troubled by Sheehan's practice. He wrote defendants have faced significant expenses defending themselves from lawsuits that "have suffered the judicial equivalent of a crash landing," while courts themselves have also incurred costs to handle them.
"When a party files a frivolous case, and consumes the court's attention, everyone foots the bill," Seeger wrote. "For now.
"This Court is increasingly curious about which side of the line Plaintiff's counsel is on."
He ordered another spreadsheet, this time to prove he shouldn't have to pay Walmart's legal fees.
"Plaintiff's counsel has become a wrecking ball when it comes to imposing attorneys' fees on other people," Seeger wrote. "And this court is starting to wonder who should pay for the cleanup. At some point, even lawyers have to internalize the costs of their own behavior.
"Plaintiff's counsel has taken everyone on a ride, and Plaintiff's counsel must show who should pay for the ticket."
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.