CHICAGO (Legal Newsline) - A Chicago federal judge has thrown out a lawsuit brought by a prolific class action lawyer who was recently termed "a wrecking ball" by a colleague on the bench.
The lawsuit alleged Trident's original flavor gum should have contained real mint or peppermint because there was a blue leaf on the package. Judge Iain Johnston on May 19 granted Mondelez Global's motion to dismiss the case and joined Judge Steven Seeger in a call for lawyer Spencer Sheehan to show why he shouldn't be forced to start paying defendants' attorneys fees.
Seeger recently told Sheehan to produce a spreadsheet of all consumer deception cases he's filed and whether they survived a motion to dismiss. The sheet showed 440 cases since January 2020, with about 100 tossed at the dismissal stage.
With that info in hand, Seeger ordered another spreadsheet to prove he shouldn't have to pay Walmart's legal fees. The case involved olive oil mayonnaise that, according to Sheehan, didn't contain enough olive oil to justify how Walmart packaged it.
"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.
Johnston wants a copy of the new sheet sent to him, presumably to decide whether Sheehan should pay Mondelez Global's fees in the gum case.
"(T)he Trident 'Original Flavor' gum does not include a 'specific ingredient claim,'" Johnston wrote. The packaging explicitly states that the gum is Trident's 'Original Flavor.'
"The packaging doesn't even use the word 'mint.' Further, mint leaves in a garden are green, and the mint leaves on the Trident packaging are blue."
Mondelez Global had already filed a motion for sanctions in the case before Johnston ruled on its motion to dismiss. Johnston ruled the sanctions motion was premature at that point.
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.
"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.