Lawyer who sued Big Lots over coffee labeling has ‘dubious modus operandi,’ federal judge says
Ethics
Lawyer who sued Big Lots over coffee labeling has ‘dubious modus operandi,’ federal judge says
July 9, 2024, 9:28 am CDT
A lawyer who alleged that retail chain company Big Lots used labeling that inflated the number of servings in cans of its Fresh Finds coffee had made a similar claim in a prior tossed lawsuit that was “indistinguishable” from the new case “but for a new plaintiff and heading,” according to a federal judge in Florida. (Photo from Shutterstock)
A lawyer who alleged that retail chain company Big Lots used labeling that inflated the number of servings in cans of its Fresh Finds coffee had made a similar claim in a prior tossed lawsuit that was “indistinguishable” from the new case “but for a new plaintiff and heading,” according to a federal judge in Florida.
In a July 3 order, Senior U.S. District Judge Gregory A. Presnell of the Middle District of Florida ordered food-labeling lawyer Spencer Sheehan to be jointly liable with the plaintiff for his opponent’s statutory attorney fees and costs as a sanction for litigation conduct that included filing the repeat claim.
“Sheehan collects consumer plaintiffs through social media advertising in whose name he can file and refile complaints in jurisdictions around the nation,” Presnell said. Sheehan and his associates pursue defendants “around the country in court after court seeking a different result from the same claims.”
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The Big Lots suit alleged that the coffee label promised “up to 210 suggested strength 6 fl oz servings” when the actual yield wasn’t “anywhere close to 210 cups.”
Sheehan has filed more than 500 consumer suits over allegedly false and misleading labels between January 2020 and April 2023, according to Reuters. The suits targeted claims about olive oil in mayonnaise, vanilla in ice cream and other products, wash load numbers for laundry detergent, lime in tortilla chips, fudge in cookies, fruit in toaster pastries and other labeling claims.
Presnell tossed Sheehan’s case against Big Lots earlier this year after finding that it would be “patently implausible that any reasonable consumer would be deceived by the product’s label.”
Sheehan had previously filed a “nearly identical” suit in federal court for the Western District of New York that was dismissed because it was “based on a selective reading of the brewing instructions,” Presnell said. That judge said the New York plaintiff focused on instructions for brewing a single cup of coffee while overlooking the fact that brewing larger batches offered a higher potential yield.
“Plaintiff’s claims were very unlikely to succeed when Sheehan filed them in New York the first time, and they were ‘patently implausible’ when plaintiff filed them again in this district, in bad faith, seeking a better outcome,” Presnell wrote.
Sheehan had implied that the new case wasn’t frivolous because the Florida plaintiff could not have been a party to the New York action. Presnell disagreed.
“This dubious argument underscores the frivolity Sheehan and his enablers inflict upon the judiciary and his defendants, carefully crafting his complaints so that when a judge in one district or division rules against him, he can ‘in good faith,’ refile the same or similar action elsewhere in hopes of achieving success,” Presnell said.
Sheehan had also failed to apply for pro hac vice status, which allows out-of-state attorneys to participate in a suit in a jurisdiction in which they aren’t licensed. And it wasn’t the only time, Presnell said.
A PACER database indicates that Sheehan appeared in 29 cases in the U.S. District Court for the Middle District of Florida, but he filed pro hac vice motions in only two out of 24 cases in which he was directed to file them, according to Presnell.
Sheehan’s “unabashed violations” of local rules concerning pro hac vice status “can only represent a concerted effort to facilitate” his unauthorized law practice in Florida, Presnell said.
Sheehan had argued that he didn’t formally appear in the Florida case “despite acknowledging in the same breath” that his name was on the complaint, Presnell said. “Sheehan has unquestionably appeared as counsel for plaintiff in this action, and her suggestion that he has not is in keeping with her counsel’s dubious modus operandi.”
Presnell said requiring Sheehan to pay attorney fees would have a deterrent effect that will impose a financial cost for “intransigence.”
The judge is also considering whether to sanction another lawyer working with Sheehan in the case.
Sheehan did not immediately respond to the ABA Journal’s request for comment.
