TAMPA, Fla. (Legal Newsline) - Class action lawyers who frequently team to pursue novel theories of consumer deception at the grocery store have seen their complaint against Publix tossed.
Tampa, Fla., federal judge Steven Merryday on May 22 ruled against lawyers William Wright and Spencer Sheehan in their lawsuit over breakfast bars that are "naturally flavored." Their case, filed by plaintiff Jerkeris Griffin, alleged the presence of malic acid made that claim not true.
But as other federal judges have, Merryday found for a defendant that pointed out its product never claimed to be entirely "naturally flavored."
"Griffin contends that each label's failure to state that the bars contain some artificial flavor is an omission likely to deceive a 'consumer acting reasonably,'" Griffin wrote.
"But Griffin's deductions and legal conclusions cannot support his claims."
His six-page order allows Wright and Sheehan to try an amended complaint, which would need to be vastly different from the original. They failed to plausibly allege a violation of Florida consumer protection laws or that Publix benefited from alleged misrepresentations by charging a premium price for the bars, Merryday wrote.
August Horvath of Foley Hoag and Brian Guthrie and Daniel Rogers of Shook, Hardy & Bacon represent Publix.
Wright and Sheehan frequently file these types of cases, with Sheehan having pursued hundreds of them to the outrage of defendants and some judges. A week before Merryday's ruling, Big Lots asked another Florida judge to have Sheehan pay the fees the company incurred fighting a failed lawsuit over coffee servings.
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.
Sheehan first gained notoriety as the "vanilla vigilante," filing a host of lawsuits that claimed vanilla flavoring in products did not contain traditional vanilla.
Sheehan has sued because the strawberry flavoring in Pop-Tarts comes from pears and apples and is dyed red. He complained Bagel Bites have cheese that is a blend made with skim milk and feature tomato sauce that contains ingredients consumers wouldn't expect (the judge hearing that case called his claims "unreasonable and unactionable").
Last year, he lost a lawsuit that said the fudge in fudge-covered Oreos should adhere to traditional definitions of "fudge" by containing more milk fat and not palm oil and nonfat milk.
Ashley Furniture has sued him in Florida state court for targeting it with a lawsuit it had nothing to do with. It involved a third-party company offering warranties on furniture.