NEW YORK (Legal Newsline) - A class action lawyer with a knack for coming up with novel theories - and sometimes angering judges with them - is suing Arby's, complaining the fast-food chain is giving customers less while charging them more.
Pictures of French fry containers are used by Spencer Sheehan in his case against Arby's, first filed in Queens County Supreme Court and transferred Dec. 17 to New York federal court.
Sheehan has been called a "wrecking ball" by a federal judge and has filed hundreds of consumer deception class actions. This one alleges "greedflation" on the part of Arby's, when a company raises prices beyond what is necessary while selling similar quantities of the product.
He says France, South Korea and Hungary have enacted laws that require companies to indicate when products have been downsized without proportional price reductions.
Arby's re-sized its French fries, Sheehan alleges, so that kids size is now small, small is medium and medium is large without reducing their prices. Customers purchasing large sizes are now given a medium amount, he claims.
Tales from TikTok and Reddit are included in the complaint, as is size information from the Arby's website.
"Arby's deceptively continues to sell its fries and beverages in smaller sizes which are now substantially smaller than the old sizes," the suit says.
"The result is that the price increase in prices may never be noticed by Arby's purchasers, who may be left only with a strange feeling, short of satiety, even though this was due to the subject downsizing."
Sheehan's plaintiff is Melissa Nelson of Ridgewood, N.Y. She says she did not expect a smaller amount of food and beverage during recent trips to Arby's.
The suit seeks to certify a class of New York residents and makes claims under the state's General Business Law.
Sheehan currently faces a possible punishment in a case against Kroger over whether customers would think "farm-fresh" eggs came from cage-free hens. He lost that argument, and Kroger says it should have to pay its attorneys fees incurred fighting it because it was a frivolous claim.
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."
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."