This week it was strawberry Pop Tarts – with a lawsuit demanding compensation for Kellogg’s “fraudulent” marketing of his cakes, which contains as much apple and pear as strawberries.
Before that, there were fudge lawsuits with their claims against Keebler and Betty Crocker and others over “fudge” cakes and baking mixes that did not contain milk fat.
And of course the about 120 vanilla cases, each claiming that consumers have been fooled by companies that market “vanilla” products that contain little or no actual vanilla bean.
Andrew Burton / Getty Images
These cases and dozens of others were all filed by the same attorney, a New York-based plaintiff’s attorney named Spencer Sheehan. In recent years, Sheehan has filed more than 400 lawsuits against products in almost every time in the grocery store, all alleging that companies are misleading consumers with claims about advertising and packaging that, Sheehan says, do not hold up to control.
His productivity has almost single-handedly caused a historic increase in the number of class action lawsuits against food and beverage companies – an increase of more than 1000% since 2008 – in an effort that has irritated food companies and won the respect of consumer groups.
“I guess I’ve always been the type who would get annoyed [and] “never liked it when companies cheated people for small amounts, it would be hard to get earned,” Sheehan told NPR this week.
He has filed about three lawsuits a week
The breadth and pace of Sheehan’s efforts is remarkable: He sued Frito-Lay, claiming it did not use enough real lime juice in its “hint of lime” Tostitos. He accused Coors of suggesting that their pineapple and mango-flavored Vizzy Hard Seltzers are sources of vitamin C “nutritionally equivalent” to actual pineapple and mangoes. He said the Snack Pack pudding – which is advertised as being “made with real milk” – misled consumers because it is made with fat-free skim milk.
And that was only May 2021. Sheehan brought six other cases that month, and in the months since, he has filed at least 70 more at a rate of about three a week.
He has become so well known that ordinary people now approach him with tips for possible future lawsuits, he says.
screenshot from trial
“Like when the police set up a tip line, 95% of the tips they get are garbage from people who have nothing but there may be a good one in there,” he says. “I try not to overlook things that may have some value.”
“I think there’s some benefit to his work,” said Bonnie Patten, CEO of Truth In Advertising, an organization dedicated to consumer education about misleading marketing. “Sitting here today and watching all the press that has been given to this issue, knowing that education is the best way to help consumers not to be cheated – I think he has done a fantastic job of spreading the word. ”
Although he has dealt with other areas such as T-shirts and bicycle helmets, the vast majority of Sheehan’s suits relate to food and beverages.
This year may set a record for cases against food companies
Class actions against food and beverage companies have risen dramatically in recent years, rising from 19 in 2008 to more than 200 last year despite a pandemic-related decline in other areas of civil litigation, according to Perkins Coie, a law firm that tracks such cases and represent companies in litigation.
2021 is on track to break that record, with more than 280 total cases filed to date, according to Tommy Tobin, a lawyer at the firm.
“We certainly know Mr. Sheehan,” said Tobin, who has represented companies in lawsuits brought by Sheehan, as have other attorneys at Perkins Coie. The firm has represented General Mills and Molson Coors.
He really does not like false labeling of vanilla
Sheehan’s most visible work is his series of vanilla lawsuits, which have been covered by the Wall Street Journal and Business Insider. He has filed lawsuits against vanilla products of all kinds – sodas, soy milk, yogurt, ice cream – all of which use synthetic vanilla or other flavors with or instead of the more expensive natural vanilla. Perkins Coie says several dozen lawsuits focused on products marketed as vanilla in the past two years were overwhelmingly brought by Sheehan.
In the Strawberry Pop Tart case, Kellogg Company, the producer of Pop Tarts, has asked the judge to dismiss the case, citing several of Sheehan’s other failed cases.
“Kellogg’s reference to one ingredient (strawberry) on the label of Frosted Strawberry Pop-Tarts does not plausibly suggest that strawberries are the only fruit in the product or suggest that they are present in a larger quantity than they are,” he wrote. the company’s lawyers. .
The judge has not yet ruled on this proposal. Attorneys representing Kellogg did not return a request for comment.
He says his goal is not money. But these suits are lucrative
Sheehan says his goal with the Pop Tart case and all his others is not money – but rather, he wants companies to market their products honestly.
“When something is regulated, there must be less space for it [companies] to walk around and try to wet around, “Sheehan said.” Hopefully they fix their marking [to] truthfully represent what is in the product. ”
However, it can be lucrative to win or decide even a small percentage of cases.
Most of Sheehan’s cases, including the strawberry popcorn cases, claim compensation based on the so-called “price premium theory”, which claims that products were sold at higher prices than they would otherwise have ordered if companies had marketed them honestly.
screenshot from the trial
He often demands at least $ 5 million in total damages to consumers across the country.
Although the total amount is high, the alleged damage to individuals is small – perhaps a dollar or even less for each product purchased – meaning any potential payouts to consumers would be small, Sheehan acknowledged.
“We have to accept, for better or worse, that yes, in these types of cases – the money they get back is – they will not be able to retire,” Sheehan said. “Sometimes people can get $ 5, $ 10, $ 20 back.”
By contrast, Sheehan, as the plaintiffs’ counsel, is able to take home a significant portion of any gain or settlement.
“In general, the plaintiff’s attorney will take between 25 and 33% home,” said the Patten of Truth In Advertising. “The vast majority of consumers get absolutely nothing, and a very small percentage get almost nothing.”
Most cases are settled instead of going to court
Dozens of Sheehan’s cases have been “voluntarily dismissed” this year, meaning Sheehan asked the judge to dismiss the case. Voluntary dismissal, experts agree and Sheehan acknowledged, typically indicates a settlement.
Asked about settlements suggests Sheehan may be in on something, defense attorney Tobin said.
“Exciting the machinery in a legal department is expensive and time consuming for the company,” Tobin said. “For many cases, an annoying form of settlement can be beneficial compared to more extensive litigation costs.”
If Sheehan’s goal is really to change corporate practices, Patten says, class action lawsuits are not the most effective strategy – either judges reject the cases, or companies enter into settlement agreements.
“A lot of the time with these class actions, they decide and put a lot of money in the pockets of the plaintiffs’ lawyers. And in the end, the defendants get good settlement agreements that protect them from future misleading marketing claims,” she said.
When asked about his most successful case, Sheehan does not point to a settlement, but instead to a case against the producers of A&W root beer.
In that case, Sheehan sued over the claim that A & W’s root beer and cream soda were “made with aged vanilla”. In fact, the sodas are made with a synthetic vanilla flavor. (The company has since dropped the claim from its labels and cans, according to court documents.)
And from July, it’s his first case in which the judge certified the class – an important step in any class action lawsuit that allows the case to proceed to discovery and potentially a lawsuit.