ST. LOUIS (Legal Newsline) - "Copycat" and "frivolous" are some of the terms used by Kroger as it asks a federal judge to throw out a class action lawsuit over smoked gouda.
The case is one of the latest filed by lawyer Spencer Sheehan, who has angered defendants and judges with his theories of consumer deception. Kroger, he says, unfairly uses smoke flavoring rather than smoking its gouda over hardwoods.
Defendants of Sheehan's are increasingly pointing to his track record, which includes several hundred proposed class actions over things like pears and apples in strawberry Pop-Tarts and skim milk in the cheese in Bagel Bites and a judge calling him a "wrecking ball."
Kroger's motion says he has filed eight similar lawsuits and has voluntarily dismissed most of them.
"This time, Mr. Sheehan, along with (plaintiff Bridget Coburn), makes up a representation that does not appear on the label," attorneys for Kroger wrote Dec. 11 in St. Louis federal court.
"Ms. Coburn claims the Smoked Gouda label is misleading because the front label statements 'Smoked Gouda' and 'distinct, smoky flavor' somehow led her to conclude the Smoked Gouda was smoked 'entirely' over hardwoods and not at all by liquid smoke.
"But the label makes no mention of smoking over hardwoods, and the product discloses 'SMOKE FLAVOR' as an ingredient, dispelling any possible expectation that the Smoked Gouda is only smoked over hardwoods."
Coburn alleges that consumers are misled because the defendant's statements on the label are identical to Gouda cheeses that get their smoked flavor from being "smoked over hardwoods" when Kroger's quality is not equal because it is added smoke flavor.
She further alleges the defendant discloses the addition of smoked flavor on the back of the product label where customers are not likely to read. Coburn claims consumers are harmed by the defendant's actions because they pay a premium for the cheese.
Kroger says Sheehan has filed "several hundred frivolous mislabeling lawsuits" in recent years. It says this one - like others - can't pass the "reasonable consumer" test needed for consumer deception claims and is "blatant forum-shopping."
"Mr. Sheehan has been testing these cases in multiple jurisdictions (five against Kroger and Ralphs alone), then voluntarily dismissing and adjusting allegations based on the roadblocks he hits along the way," Kroger says.
"(A)s a consequence of this forum-shopping, Kroger has been forced to repeatedly and needlessly expend resources to defend itself in these serial actions (including after being forced to brief summary judgment...)."
Daniel Harvath is also representing the plaintiff.