BROOKLYN, N.Y. (Legal Newsline) - A federal judge has allowed a class action to proceed accusing Southern Comfort of misleading New York consumers by selling a “whiskey flavor” malt beverage in bottles that resemble full-strength Southern Comfort.
The Jan. 2 order by U.S. District Judge Arun Subramanian means the Sazerac unit must face off against attorney Spencer Sheehan, who has been called a “wrecking ball” by one judge for filing hundreds of class actions based on dubious theories of consumer confusion.
In this case, Sheehan claims consumers mistakenly purchased Southern Comfort’s lower-proof malt beverage, thinking they were getting real whiskey, even though the bottle only says “whiskey flavor.” Southern Comfort sells the low-strength beverage in convenience stores, which aren’t licensed to sell liquor. Plaintiff expert William Robert Ingersoll says consumers would have paid 8.8% less for the bottles had they known the difference.
Sazerac sought to dismiss the case, saying the label contained federally mandated language, but Judge Subramanian rejected that argument. New York’s General Business Law prohibits “materially misleading” practices, and “the `materially misleading’ prong does the trick,” the judge wrote. That test is “ideal for class certification” because it allows the court to assume every purchaser relied upon the seller’s representations, he said.
The judge wasn’t impressed by some of Sheehan’s representations however. The law firm initially sued in the name of Christina Del Rosario in 2023, then withdrew her and named Wilbert Andrews and Steven Khan instead.
Sazerac then moved to disqualify Andrews, citing a deposition in which he didn’t seem to understand the basic premise of the litigation and admitted he lied about how much he paid for Southern Comfort on a form he signed under penalty of perjury. Andrews said his lawyers emailed the form to him and told him to sign it, and he only read part of it.
“Andrews can’t adequately represent a class when he doesn’t know the basic premise of the suit, can’t give straightforward testimony about whether he bought the product at issue, and admitted to lying,” the judge said.
The judge allowed the case to proceed as a New York class action in Khan’s name instead, appointing Sheehan, Charles D. Moore of Reese LLP and Neal Jamison Deckant of Bursor & Fisher as class counsel.
Sheehan has angered defendants and judges with his novel theories of consumer deception. He 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.
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").
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."