SPRINGFIELD, Ill. (Legal Newsline) - A class action lawyer called a "wrecking ball" by a federal judge is defending his choice to continue his cough drop case, as he faces a potential $60,000 penalty for doing so.
New York attorney Spencer Sheehan filed opposition to Ricola's request he pay $60,000 for attorneys fees the company incurred fighting his lawsuit after he was allegedly informed it had no merit.
At issue in the case was Ricola's marketing its lozenges are "Made With Swiss Alpine Herbs." Sheehan and plaintiff Lacie Davis alleged consumers paid more for Ricola products than they would have, had they'd known the key cough-suppressant ingredient is menthol.
Illinois federal judge Colleen Lawless ruled the menthol in Ricolas is herbal, something Ricola disclosed in earlier filings. When it did, Ricola said, Sheehan should have packed the case up.
On Oct. 10, Ricola asked Lawless to order Sheehan to pay its fees, something that recently happened to Sheehan in a case against Big Lots in Florida that cost him $142,000.
Not much money ended up being up for grabs in the Ricola case after Lawless denied Sheehan's motion to certify it as a class action.
"Indeed, after the proceedings held before District Judge Lawless on Dec. 13, 202, and oral arguments on the issue of certification, Plaintiff effectively ceased litigating this action," Sheehan says.
"Out of the dozens of filings made since that date, the only filings from Plaintiff were oppositions to motions, several unnecessary, filed by Defendant, along with numerous requests from Plaintiff's counsel to stay further trial preparations in light of the pending summary judgment decision."
Swiss Alpine herbs do nothing but trick consumers into thinking Ricola cough drops are superior to others, the lawsuit said. But it was noted the menthol used in Ricolas is, itself, herbal.
"The record establishes that Plaintiff paid for and received a cough suppressant and oral anesthetic with an active herbal ingredient," Lawless wrote.
Sheehan's case survived an initial motion to dismiss and he had hoped to make it a class action, but his motion for certification was rejected. He was pursuing claims under the Illinois Consumer Fraud and Deceptive Business Practices Act.
It was on Sept. 28, 2023, that Ricola gave Sheehan and Davis an expert report that said the menthol in Ricolas is 100% herbal but the case continued. Ricola cites a law that says an attorney "who so multiplies the proceedings in any case unreasonably and vexatiously" can be ordered to pay the other side's costs.
It wouldn't be the first time such an order has been imposed on Sheehan. He was recently told by a Florida federal judge to pay $140,000 to Big Lots after suing it over how many servings are in packages of its coffee grounds.
His name was put on the complaint after an identical case had already failed in New York.
Sheehan has been called a "wrecking ball" by a federal judge and has drawn criticism from others frustrated with the novel theories of consumer deception he has employed to file hundreds of class action lawsuits.
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.
He faces civil contempt proceedings in New York, plus a lawsuit filed against him by Ashley Furniture for naming it as a defendant in a lawsuit that had nothing to do with the company.
Ricola said Sheehan never submitted an expert report to rebut the report that the menthol in its lozenges is 100% herbal.
"Plaintiff also did not produce any facts contradicting the herbal nature of the menthol in the product or otherwise showing that the menthol in the product is synthetic," Ricola's motion says.
After the report, Sheehan wrote in response to the company's motion for summary judgment that "menthol is not an herb."
Ricola notes a Sept. 23 ruling in New York that ordered Sheehan to pay a defendant's excess costs and fees and hit him with a $1,000 fine. He had sued the Dutch airline KLM, alleging it induced consumers to fly on it by misrepresenting its commitment to climate goals.
During litigation, it came to light his plaintiff had used a third party to book tickets and had not specifically picked KLM. Judge Ronnie Abrams said she hopes "Sheehan has learned a valuable lesson."