MILWAUKEE, Wis. (Legal Newsline) - A federal judge has refused the claims of a class action lawyer called a "wrecking ball" by a colleague that alleged Schwan's didn't use enough "real butter" in its pie crust.
Wisconsin judge Brett Ludwig on March 14 tossed the lawsuit brought by lawyer Spencer Sheehan and plaintiff Annie White against Schwan's Consumer Brands. Sheehan is well-known in class action circles for his hundreds of lawsuits alleging novel theories of consumer deception.
White's claims stemmed from her purchases of Mrs. Smith's brand frozen apple pies, whose label stated the crust is "made with real butter." She alleged this led her to believe there would be more butter than there was and that the main crust ingredients were palm oil and shortening butter blend.
She alleged violation of a Wisconsin statute (ATCP) that adopted federal food labeling requirements.
Schwan's responded in its now-granted motion to dismiss that it never promised any specific amount of real butter and pointed at already-tossed the same claims against Schwan's in Illinois.
"Barnett specifically held that 'a reasonable consumer could not take [Made with Real Butter] to mean that the product necessarily contains a particular amount of butter or more butter than other shortening ingredients, let alone the unspecified greater amount of butter expected by' White," Ludwig wrote.
"Thus, the plaintiff failed to 'adequately plead that the label is deceptive as to the amount of butter in the product.' This Court agrees with the analysis in Barnett. No reasonable consumer would find Schwan's labeling deceptive."
Schwan's motion to dismiss took aim at Sheehan's reputation and his history of angering some judges.
"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," it wrote.
"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."