CHICAGO (Legal Newsline) - Kroger wants a controversial class action lawyer punished for bringing a case over "farm-fresh" eggs that was recently thrown out by a Chicago federal judge.
The grocer is one of many defendants who are increasingly looking to deliver blows to New York attorney Spencer Sheehan, who has filed hundreds of class actions under novel theories of consumer deception and has been described as a "wrecking ball" by a federal judge.
A Florida judge ordered him to pay $140,000 to Big Lots earlier this year for pursuing a theory that had already lost in New York, while Ricola seeks a $60,000 penalty after winning dismissal of a case over herbal menthol in cough drops.
Briefs against Sheehan are gaining more ammunition, with Kroger including a section called "Bad-Faith Background: Mr. Sheehan's History of Knowingly Filing Frivolous Claims Demonstrates His Recklessness Here."
The brief includes quotes from judges, like:
-"Mr. Sheehan's practice appears to rely on businesses agreeing to quick settlements without bringing dispositive motions, regardless of how frivolous the underlying claims may be, undoubtedly because the settlement amount is less than what it would cost to fight the claims"; and
-"Many of the complaints have suffered the judicial equivalent of a crash landing... Lawyers have an obligation to file cases in good faith."
His Kroger case was his second of the kind and failed to get past a motion to dismiss, when Judge Charles Kocoras ruled calling eggs "farm-fresh" doesn't mislead consumers into thinking they were laid by free-range hens.
The suit said customers believed hens were living "a natural life on a farm," and the chickens producing Kroger's eggs aren't living on what consumers would call a farm, but allegedly large-scale industrial confinement.
"But the term 'farm fresh' does not say or suggest anything about whether the eggs came from a hen that was caged or not," Kocoras wrote. "(The plaintiff) is attempting to 'impute meaning that is not fairly derived from the labeling itself.'"
The plaintiff noted a study that 41% of 646 Kroger customers thought "farm fresh" meant "cage free."
Kroger noted Sheehan first sued it in the Central District of Illinois in 2023 but withdrew the case after realizing the product he sued over didn't say "farm-fresh." He repackaged his claims with a new plaintiff in the Northern District of Illinois in October 2023.
Kroger's motion says filing a frivolous claim is sufficient for a penalty of paying the other side's attorneys fees.
"When he filed this action, Mr. Sheehan knew his claims were unreasonable and frivolous under Illinois law, as several courts had already advised him when dismissing his other Illinois mislabeling claims that his interpretation of the label cannot 'impose content that isn’t there and impute meaning that is not fairly derived from the labeling itself," Kroger wrote.
"Mr. Sheehan’s refusal to heed court warnings in filing this lawsuit, or to remedy his conduct after multiple sanctions orders, establishes his bad faith in filing and maintaining his frivolous claims here, as well as his widespread abuse of the judicial process."
Sheehan 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.
A Sept. 23 ruling in New York 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."