Search results for: sheehan

  • Spencer Sheehan is a Plaintiff’s attorney who has filed hundreds of class action lawsuits against food companies for allegedly deceptive labeling and marketing. A small percentage of these lawsuits survive the motion to dismiss stage, let alone succeed on the merits. Indeed, many of his losses are suffered many times over as he has a practice of refiling essentially identical lawsuits in different jurisdictions, even after unfavorable rulings.
  • His practices have increasingly drawn the ire of the courts, and this summer a United States District Court in Florida issued an order sanctioning him and making him responsible for attorney’s fees in the case.
  • Specifically, the Court applied Florida fee shifting statutes, one mandatory and one discretionary, to hold Plaintiff and Sheehan responsible for the legal fees. However, the Court went further and sanctioned Sheehan for bad faith conduct. The Court noted Sheehan’s practice of re-filing failed lawsuits in other jurisdictions after “collect[ing] consumer plaintiffs through social media advertising.” Particularly troublesome to the Court was the contention that Sheehan was not an attorney of record for the Plaintiff even when his name appeared on the pleadings. The Court found that this was part of a broader practice of flagrantly violating court rules and that Sheehan had not been admitted pro hac vice to any of the twelve cases in which he is involved that are currently pending in the same district.
  • Briefing in case continues as the Court decides on the final monetary award and whether or not to hold the local Florida counsel jointly responsible.
  • In yet another lawsuit filed by attorney Spencer Sheehan, Plaintiffs alleged that Aldi’s diced peaches products (“Yellow Cling Diced Peaches in 100% Fruit Juice”) violate FDA’s regulations and are falsely and deceptively labeled, in part because they are made from concentrate (the ingredient list identifies “white grape juice concentrate” and “lemon juice concentrate”) and contain the food additives ascorbic acid and citric acid. Plaintiffs claim these ingredients are inconsistent with a 100% juice declaration.
  • However, the lawsuit does not reference the fact that FDA’s regulations at 21 CFR 101.30(h)(1) provide that FDA is to calculate the percentage juice content of a reconstituted juice (i.e., a juice from concentrate) based on the Brix level (a measure of dissolved solids) of a reference single-strength (100%) juice. Thus, a reconstituted juice is not necessarily inconsistent with a 100% juice declaration. This point is also implicitly stated in paragraph (b)(3) which requires that other additives be declared when a 100% juice declaration is made, although for a 100% juice claim to be made such additives cannot result in a diminution of the “juice soluble solids” (i.e., Brix). 
  • Compliance or non-compliance with FDA’s regulations does not in itself provide evidence of consumer deception and the Court will have to decide whether a substantial portion of reasonable consumers would have been deceived under the circumstances. Nevertheless, compliance with FDA’s regulations likely will be a critical aspect of any preemption defense. In a case with some similarities, Bell v. Albertson Companies, Inc., No. 19-2741 (7th Cir. 2020), the 7th Circuit reversed a district court decision and held that Plaintiffs had plausibly alleged that a 100% grated parmesan cheese claim was deceptive when the product contained cellulose powder and potassium sorbate additives. Notably, a preemption defense was rejected because, while the additives were consistent with FDA’s standard of identity for parmesan cheese, the standard of identity did not address the 100% claim.
  • Last month, the U.S. District Court for the Southern District of New York dismissed a class-action lawsuit alleging that Snapple beverage products (e.g., Snapple Apple) were falsely and misleadingly labeled as “all natural” because they contained (1) vegetable and fruit juice concentrates added for color and (2) citric acid, which Plaintiffs alleged is commercially made by fermentation of Aspergillus niger and “recovered through numerous chemical reactions with synthetic mineral salts and reagents.”
  • In regard to the vegetable and fruit juice concentrates, Plaintiffs had conceded that they came from natural sources, but argued that an “all natural” claim was nevertheless misleading because FDA’s informal natural policy considers “natural” to preclude the inclusion of any color additive, regardless of source. The Court held that FDA’s regulations, and in particular its informal views, “are irrelevant or at least not dispositive when it comes to determining whether a reasonable consumer would be misled.” It also found it implausible that a reasonable consumer would distinguish fruit and vegetable concentrates added for color from similar concentrates not added for color. Finally, the Court held that “all natural” was an ambiguous phrase, that a reasonable consumer would “seek clarification elsewhere on the package,” and that the ingredient list dispelled any ambiguity.
  • In regard to the citric acid allegations, the Court held that generalized claims about the method of production were insufficient, and even if the claims were true, it would be not be dispositive because there were no claims that the finished citric acid product contained synthetic ingredients or differed from citric acid found in nature.
  • The case is one of many food litigation lawsuits filed by attorney Spencer Sheehan. 
  • Spencer Sheehan is an extraordinarily prolific plaintiff’s lawyer who works primarily in the food space. By his own count, he filed 440 class actions between 2020 and spring 2023. He monopolized the field of filing lawsuits against vanilla flavored products for a period, and was the subject of an NPR profile featuring his suit against Strawberry Pop-Tarts (alleging that they were mostly apple and pear) as well as other high-profile articles.
  • As one judge in the Northern District of Illinois put it in May, Sheehan has a habit of pushing the same legal theories “time and again, in case after case, without much success.” The judge admonished Sheehan that his “losing streak should tell you something” and ordered him to file a spreadsheet showing every case he had filed based on a similar legal theory since 2020. Finally, noting the significant amounts of attorney’s fees Sheehan had caused companies to run up with his frivolous filings, the judge ordered Sheehan to show cause why he should not have to pay the defendant’s legal fees. The court has not taken any further action in the case since.
  • Instead, in July, the Northern District of New York noted frivolous cases filed by Sheehan in that district, in addition to two admonitions directed at him by judges in the Southern District of New York concerning the same conduct. In addition to the court’s allegations, Sheehan also had to face an amicus filing by another company he had targeted. According to that filing, Sheehan had responded to the company’s threats of a sanctions motion by saying, “So go file your rule 11 motion I hear such sanctions threats from people like you all day long.” The court issued its order holding him in contempt last week, but reserved decision on the nature of the final sanctions Sheehan will face.
  • Keller and Heckman will continue to follow and be available to assist with defending against class actions in the food and packaging space.
  • Last month the U.S. District Court for the Northern District of New York dismissed a class-action lawsuit filed by Spencer Sheehan which alleged that Starbucks coffee labeled as “100% Arabica” mislead consumers into thinking that the coffee contained no additives when in fact it contained “significantly greater than expected levels of potassium” as indicated by “[r]ecent reports based on laboratory analysis.”
  • The Court made short work of the allegations. First, the complaint contained only vague allegations of elevated potassium levels and did not include or cite to any laboratory analysis on which the Court could determine the potassium levels in the product. Second, even if the Court could establish that the product contained elevated potassium levels, the Court held that a reasonable consumer would interpret 100% Arabica to mean that the product contained coffee beans exclusively from the arabica plant, and not that it contained no additives.  
  • The Court is considering imposing sanctions against Plaintiff’s attorney Spencer Sheehan for filing a frivolous lawsuit and has ordered the attorney to show cause as to why sanctions are not appropriate. Sanctions are appropriate only where it is clear that there is no chance of success under existing law and there is no reasonable argument to modify existing law. In issuing this extraordinary order, the Court considered that Spencer Sheehan has filed 18 actions in the same district since 2021, all of which have been dismissed, and that other New York district courts have threatened him with sanctions for frivolous claims.
  • Spencer Sheehan has filed a response arguing that sanctions are inappropriate and that he had a good faith basis to file the claim, but the Court has not yet ruled on the issue.
  • Spencer Sheehan, a well-known class-action attorney, has filed a pair of class-action lawsuits in the U.S. District Court for the Northern District of Illinois, alleging that mint flavored products which do not contain mint are deceptively labeled.
  • The first lawsuit alleged that a “mint chocolate chip ice cream” statement of identity is misleading to consumers where the product’s flavor is derived from “natural flavor” and not any mint or mint-containing ingredient. The product also contains images of mint leaves on the front panel. As support for the allegation that the lack of mint is deceptive, the complaint cites to the ice cream flavoring regulation (21 CFR 135.110(f)(2)), which requires that the term “flavored” (e.g., mint flavored) be used where a product contains a natural flavor which predominates.
  • The second lawsuit alleged that consumers are misled by a gum product which is labeled as “original flavor” with a backdrop of what appears to be a blue mint leaf, but which only contains “natural and artificial flavor,” and no mint-based ingredients. Plaintiff, citing to the general flavoring regulation (21 CFR 101.22), alleged that the product should have been labeled as “naturally and artificially flavored mint” and that the failure to disclose the flavor or include the other qualifiers is misleading.
  • Although Plaintiffs have alleged technical violations of FDA’s labeling regulations, courts have consistently held that a reasonable consumer may not be aware of the intricacies of FDA’s labeling regulations and that therefore a technical labeling violation is not in itself sufficient to show that a reasonable consumer would be misled.
  • A class-action lawsuit filed by Spencer Sheehan on September 18, 2022, alleges that an apple pie product advertised as “made with real butter” is deceptively advertised because its primary shortening ingredient is palm oil, which the complaint argues is contrary to consumer expectations and results in an inferior product. As disclosed on the ingredient list, the second ingredient is “shortening butter blend,” which consists of palm oil and butter (in that order of predominance), and palm oil and soybean oil are the third and fifth most predominant ingredients, respectively.
  • Citing to 21 CFR 101.4(b)(14), the complaint argues that “shortening butter blend” is an inappropriate common name because it improperly combines animal and vegetable fats into a single ingredient name and that its sub-ingredients (palm oil and butter) should be listed individually in order of predominance. Plaintiff states that the product contains more soybean oil, water, and salt than butter, and that if butter were listed as an individual ingredient, it would be “closer to the least predominant ingredient.” It is not clear how Plaintiff can make this claim since ingredient lists disclose only relative amounts of ingredients. Furthermore, even if Plaintiff’s interpretation of Section 101.4(b)(14) was correct (and it is not clear that it is), a technical violation of an FDA labeling rule at best provides only some evidence of consumer deception.
  • The complaint is similar to other complaints filed by Spencer Sheehan relating to butter and vegetable oils that have been dismissed on the grounds that the products in question did not make representations that butter was the exclusive ingredient and the ingredient lists accurately disclosed the products’ contents. See BEF Foods Class Action (dismissing lawsuit and holding that “made with real butter” was not misleading where mashed potato product at issue also contained vegetable oils); see also Pepperidge Farm Class Actions (dismissing lawsuits and holding that “Golden Butter” crackers were not deceptively labeled where they contained vegetable oils as a secondary shortener). Nevertheless, we expect that Spencer Sheehan will try to distinguish the cited cases on the grounds that they involved products where butter was present in a greater amount than the challenged vegetable oils. In contrast, vegetable oils are more predominant than butter in the product at issue.
  •  On September 4, 2022, a class-action lawsuit was filed against Conagra for allegedly deceptively advertising its “Chile Lemon Flavor Sunflower Seeds” by failing disclose that the product was artificially flavored with DL-malic acid.
  • The complaint alleged that although the product contained aged chili peppers and lime juice solids (sources of natural flavor), malic acid is a “core component of chili pepper and lime,” and therefore also imparts flavor on the product. And, since the (DL) malic acid in question was synthetically produced (L-malic acid is the only form present in natural sources), Plaintiff argued that the product should disclose that an artificial flavor is present (e.g., Artificially Flavored Sunflower Seeds). Plaintiff also argued that, even if the malic acid acted as a flavor enhancer (which reinforces a flavor but does not impart its own flavor), the flavor statement should be “Chile Lemon Flavored” to indicate that the product does not contain “an amount of its characterizing ingredients sufficient to independently characterize it.”
  • We have previously reported on similar lawsuits, many of which have been filed by Spencer Sheehan, Plaintiff’s attorney in this case. We will continue to monitor and report on these and other similar flavor cases.
  • A class-action lawsuit has alleged that Upfield US Inc. deceptively labeled its “Country Crock Plant Butter” as “Made with Almond Oil” and with images of almonds on the principal display panel when it in fact contained a blend of four plant-based oils, with almond butter declared as the fourth most predominant ingredient (and oil) on the ingredient list (after palm fruit oil, palm kernel oil, and canola oil).
  • The complaint alleged that almonds and almond oils have various health benefits and a pleasant taste, and that Defendant sought to take advantage of consumer demand through its “Made with Almond Oil” labeling. Further, it alleged that consumers would expect a “non-de minimis amount of almond oil, in relative and absolute amounts to all oils used” and that the declaration of almond oil on the ingredient list as the fourth most predominant ingredient (and oil) “reveals a negligible amount of almond oil in relative and absolute amounts to all oils used.”
  • Since an ingredient list reveals only the relative amount of ingredients, it is not clear how it can be claimed that almond oil is present in a de-minimis amount. Furthermore, the complaint, which is another filed by Spencer Sheehan, will face an uphill battle given other court rulings which have dismissed similar lawsuits where the defendant did not make a claim about the relative proportion of ingredients and accurately disclosed the ingredients on the ingredient list.

 Kellogg Escapes Class Action Over Fudge Ingredients (Law360 Subscription Required)

  • We reported on three substantively identical class action lawsuits filed in district courts in Illinois that allege products containing vegetable oils in place of dairy fats (i.e., butter and/or milk) are falsely and misleadingly described as “fudge.”  The lawsuits, which are all filed by Sheehan & Associates, P.C., target Kellogg Sales Company’s “Frosted Chocolate Fudge Pop-Tarts,” Bimbo Bakeries USA, Inc.’s “Chocolate Fudge Iced Cake,” and the Hershey Company’s “Hot Fudge.”  Fudge is not the subject of a formal standard of identity under FDA regulations.
  • On June 2, 2022, the claim under the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA), as well as claims of breach of warranty, negligent misrepresentation, fraud, and unjust enrichment against Kellogg were dismissed.  The judge found that the lead plaintiff failed to back the assertion that an average consumer would expect a fudge ingredient to contain milk fat.  While the plaintiff provided some evidence that credible third parties believe that milkfat is the central component of fudge, Molly Mills, an authority put forward to support the plaintiff’s interpretation, actually included numerous recipes that do not include milkfat in her book of fudge recipes.  While the plaintiff was granted 14 days to amend the complaint, the judge noted that in a similar, heavily cited Strawberry Pop-Tarts case (discussed here), which was also dismissed without prejudice, the plaintiff chose not to pursue the claims.
  • While no decision has been reported yet in the other “fudge” class action lawsuits, the outcome in favor of Kellogg indicates that for a case like this to ultimately succeed, where an ingredient name can be said to merely designate the flavor or taste of the product at issue, the plaintiff will most likely need to provide a well-designed market study as extrinsic evidence of consumer deception.