CHICAGO (Legal Newsline) - A lawyer's class action over "farm fresh" eggs came to the courthouse stale, Kroger is claiming in a recent motion to dismiss.
The company on Feb. 16 submitted its motion in U.S. District Court for the Northern District of Illinois, claiming it is attorney Spencer Sheehan's second attempt to file frivolous claims. Sheehan's suit, filed on behalf of plaintiff Adam Sorkin, came five days after Sheehan voluntarily withdrew a similar lawsuit while facing a dismissal motion.
The theory of the suit is by calling eggs "farm fresh," it leads customers to believe the hens were living "a natural life on a farm."
"The problem here, as with the prior version of the same complaint (which Mr. Sheehan withdrew after he was served a Rule 11 motion), is that the label never makes ay such statement," the motion says.
"Mr. Sheehan and Mr. Sorkin are making it up. Again. This has become the nationwide modus operandi for Mr. Sorkin's counsel, and it is time to stop."
Sheehan is well-known in class action circles for the prolific amount of cases he has filed over novel theories of consumer deception that have sometimes angered judges. He's even been sued by one of his targets for naming it as defendant even though it had no connection to the case.
Kroger says the new complaint against it is largely the same as the one Sheehan dismissed five days before filing. The main difference is the brand of eggs.
The first case targeted Kroger-brand eggs, this one Roundy's. Kroger pointed out in the first case that its eggs were not called "farm fresh" and questions over whether "Grade A" was misleading about cage-free hens were moot because the label was required by Illinois law.
Kroger moved for dismissal and sanctions against Sheehan, but he dropped the case from Illinois' Central District) Oct. 23.
Four days earlier (and less than a week after the sanctions motion), Sheehan had refiled the claims in the Northern District, the company says.
"This action is just the latest in Mr. Sheehan's attempts to escape a bad dispositive ruling, and repeatedly assert baseless claims," the motion says.
Sorkin alleges in his class action that Kroger's "Farm Fresh" eggs sold under its Roundy's brand are misleadingly labeled. He claims the eggs are not produced on "anything consumers would consider a farm" and that the chickens are in "large-scale" industrial confinement.
Sorkin further claims hens in such environments are usually caged with up to 11 birds per cage. He alleges that according to the Egg Products Inspection Act, eggs can be labeled as "fresh eggs" if they meet Grade A but can not be labeled "farm fresh."
Sorkin claims he and other consumers relied on the "farm fresh" label to mean the eggs were produced by hens living on farms with open green space, grass and straw. He also claims the value of the product is materially less than its value that is represented by Kroger.