FORT LAUDERDALE, Fla. (Legal Newsline) - A controversial class action lawyer is not be able to sue the maker of Mexican-style frozen treats because they are made in California.
Florida federal judge Roy Altman on April tossed the lawsuit of plaintiff Hyron Figueredo and lawyer Spencer Sheehan against Tropicale Foods, which makes ice cream and frozen fruit treats under the Helados Mexico brand
The suit claims on the labeling, the defendant makes representations such as an iconic blue pushcart with bells and Spanish words such as "con crema" and "fresa" in larger font.
That doesn't rise to a claim for damages, Altman found.
"But any expectation of origin that might be inferred from that one untranslated phrase is offset by the many English words and phrases that appear without Spanish translations," Altman wrote, pointing to the phrase "MADE WITH REAL INGREDIENTS" on the packaging.
Citing a previous decision involving tortillas made in America, Altman wrote no reasonable consumer would be misled by "the mere presence of words" in Spanish.
And a blue pushcart with bells fails to deceive reasonable consumers too, he wrote.
"In our case... the imagery doesn't directly reference Mexico (as, for example, a Mexican flag would), and the packaging's phrasing doesn't come close to inviting consumers to visit the paleta factory in Mexico," Altman wrote.
"At most, the product's imagery requires the consumer to confer some connection between a blue pushcart and Mexico. If that were sufficient to connote a product's Mexican origin, 'then any symbol that has some widely accepted connection with Mexico could be described as 'traditional' and therefore misleading - such as a cartoon sombrero.'"
Altman is allowing Sheehan to attempt an amended complaint. The lawyer has filed hundreds of consumer deception class actions, and one judge has called him a "wrecking ball" and another in New York is currently considering what punishment he will receive after being held in contempt.