MILWAUKEE, Wis. (Legal Newsline) - Lawyers for food company Schwan's hope judges in Wisconsin are just as annoyed by the theories of a class action lawyer as colleagues in Illinois.
The company on June 6 filed a motion to dismiss a class action filed in Milwaukee federal court, pointing to recent rulings by federal judges in Illinois that could possibly have attorney Spencer Sheehan paying the legal bills of the companies he's sued.
One Chicago judge made Sheehan file a spreadsheet of his cases (440 since January 2020) along with whether they survived a motion to dismiss (about 100 haven't). Judge Steven Seeger is currently deciding if Sheehan will pay Walmart's fees incurred in a lawsuit alleging olive oil mayonnaise didn't contain enough olive oil.
Seeger has called Sheehan "a wrecking ball." The case against Schwan's says "made with real butter" pie crust doesn't contain enough butter because it has more palm oil and shortening butter blend.
"This is one of many cases recently filed by Plaintiff's counsel in courts across the country, alleging that an ingredient featured on the packaging of various food or beverage products is present in too small of an amount, even though no quantity is stated or implied by the challenged marketing claim," the motion says.
"Judges in the Northern District of Illinois have noted that the vast majority of these cases are dismissed when challenged on a Rule 12 motion, and have criticized the persistent filing of these cases as a frivolous and possibly sanctionable abuse of the judicial system.
"Plaintiff's counsel's litigation campaign has now metastasized into the Western District of Wisconsin. This case should be dismissed, and Plaintiff's discredited legal theory rejected, before it can spread further."
Plaintiff Annie White alleges violation of the Wisconsin Unfair Trade Practices Act, among other claims. She says in her class action that she purchased the defendant's frozen apple pie sold under the Mrs. Smith's brand at stores including Walmart in Kenosha between 2021 and 2023.
She claims that although the pie's front label states the crust is "made with real butter," that the label is misleading because the pie's primary crust ingredients are palm oil and "shortening butter blend."
White further claims the amount of butter in the crust is de minimis and that the product contains more soybean oil, water and salt than butter. She alleges that consumers relied on the pie's labeling and that the product's ingredient list does not list the ingredients by their common name and by descending order of "predominance by weight" required by federal and state laws.
The motion says the pie's package never promised any specific amount of real butter.
"She claims that the Product’s ingredient statement does not list ingredients in descending order of predominance by weight because, if it had, butter would have taken a different placement in the ingredient statement," the motion adds.
"However, she pleads no facts to suggest that butter was improperly placed in the ingredient statement according to its predominance by weight."