This week, it was strawberry Pop-Tarts — with a lawsuit claiming damages over what it calls “deceptive” marketing by Kellogg’s of its pastries that contain just as much apple and pear as strawberry.
And of course, the 120 or so vanilla lawsuits, each alleging that consumers have been duped by companies marketing “vanilla” products that contain little to no actual vanilla bean.
These suits and scores of others were all filed by the same lawyer, a New York-based plaintiffs’ attorney named Spencer Sheehan. In recent years, Sheehan has filed more than 400 lawsuits targeting products in almost every aisle of the grocery store, all alleging that corporations are misleading consumers with claims on advertising and packaging that, Sheehan says, don’t hold up to scrutiny.
His prolificacy has almost single-handedly caused a historic spike in the number of class action lawsuits against food and beverage companies — up more than 1000% since 2008 — in an effort that has vexed food companies and won respect from consumer advocacy groups.
“I guess I’ve always been the type who would become annoyed [and] never liked it when companies cheated people for small amounts it would be difficult to recoup,” Sheehan told NPR this week.
He files about three lawsuits a week
The breadth and pace of Sheehan’s efforts are remarkable: He filed suit against Frito-Lay alleging it didn’t use enough real lime juice in its “hint of lime” Tostitos. He accused Coors of suggesting its pineapple-and-mango-flavored Vizzy Hard Seltzers are sources of Vitamin C “nutritionally-equivalent” to actual pineapples and mangos. He said 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 just May 2021. Sheehan filed six other suits that month, and in the months since, he has filed at least 70 more, at a rate of about three per week.
He has become so well-known that everyday people now reach out to him with tips for possible lawsuits, he says.
“Like when the police set up a tip line, 95% of the tips they’re going to receive are garbage from people that don’t have anything, but there may be a good one in there,” he says. “I try to not overlook things that might have some value.”
“I think there is some merit to his work,” said Bonnie Patten, the executive director of Truth In Advertising, an organization dedicated to consumer education about deceptive marketing. “Sitting here today and seeing all the press that has been given to this issue, knowing that education is the best way to help consumers not be deceived – I think he’s done an amazing job at spreading the word.”
Though Sheehan has dabbled in other areas like T-shirts and bike helmets, the vast majority of his suits concern food and drinks.
This year could set a record for suits against food companies
Class action suits against food and beverage companies have spiked dramatically in recent years, rising from 19 in 2008 to more than 200 last year in spite of a pandemic-related dip in other areas of civil litigation, according to Perkins Coie, a law firm that tracks such cases and represents corporations in litigation.
2021 is on track to shatter that record, with more than 280 total suits filed to date, according to Tommy Tobin, a lawyer with the firm.
“We certainly know of Mr. Sheehan,” said Tobin, who has represented companies in litigation brought by Sheehan, as have other lawyers at Perkins Coie. The firm has previously represented General Mills and Molson Coors — two companies currently facing lawsuits from Sheehan.
He really doesn’t like false labeling of vanilla
Sheehan’s most visible work is his series of lawsuits about vanilla, which have been covered by the Wall Street Journal and Business Insider. He has filed cases targeting vanilla products of all kinds — soda, soy milk, yogurt, ice cream — all of which use synthetic vanilla or other flavors alongside or in place of the more expensive natural vanilla. Perkins Coie says several dozen lawsuits focused on products that are marketed as vanilla in the past two years were overwhelmingly filed by Sheehan.
In the strawberry Pop-Tart case, the Kellogg Company, the maker of Pop-Tarts, has asked the judge to dismiss the case, citing several of Sheehan’s other, unsuccessful suits.
“Kellogg’s reference to one ingredient (strawberries) on the labeling of Frosted Strawberry Pop-Tarts does not plausibly suggest that strawberries are the only fruit in the product or imply that they are present in a greater amount than they are,” the company’s lawyers wrote.
The judge has not yet ruled on that motion. Lawyers representing Kellogg did not return a request for comment.
He says his goal isn’t money. But these suits are lucrative
Sheehan says that his goal with the Pop-Tart case, and all his others, isn’t money — but rather, he wants companies to market their products honestly.
“When something is regulated, there should be less space for [companies] to walk around and try to weasel around,” Sheehan said. “Hopefully they fix their labeling [to] truthfully represent what’s in the product.”
However, winning or settling even a small percentage of cases can be lucrative.
Most of Sheehan’s suits, including the strawberry Pop-Tart cases, allege damages based on the so-called “price premium theory,” which says that products are sold at higher prices than they would have otherwise commanded had the companies marketed them honestly.
He often claims at least $5 million in total damages to consumers nationwide.
While the total 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 tiny, Sheehan acknowledged.
“We have to accept, for better or worse, that yes, in these types of cases — the money that they get back is — they’re not going to be able to retire,” Sheehan said. “Sometimes people may get back $5, $10, $20.”
By contrast, as the plaintiffs’ attorney, Sheehan is able to take home a significant chunk of any winnings or settlement.
“Generally, the plaintiff’s attorney will be taking home between 25 and 33%,” said Patten of Truth In Advertising. “The vast majority of consumers will get absolutely nothing, and a very small percentage will get next to nothing.”
Most cases are settled rather than go to trial
Dozens of Sheehan’s cases have been “voluntarily dismissed” this year, meaning Sheehan requested the judge dismiss the case. Voluntary dismissal, experts agreed and Sheehan acknowledged, typically indicates a settlement.
Asked whether settlements suggest that Sheehan may be onto something with his claims, defense lawyer Tobin demurred.
“To whir up the machinery of a litigation department is expensive and time-consuming for the company,” said Tobin. “For many cases, a nuisance kind of settlement might be advantageous compared to more extensive litigation costs.”
If Sheehan’s goal is truly to change company practice, Patten says, class action suits are not the most effective strategy — either judges dismiss the cases or companies reach settlement agreements.
“A lot of time with these class actions, they settle and put a lot of money into the pockets of plaintiffs’ attorneys. And in the end, defendants get great settlement agreements that protect them from future deceptive marketing claims,” she said.
When asked about his most successful case, Sheehan points not to any settlement, but instead to a case against the makers of A&W root beer.
In that case, Sheehan sued over the claim that A&W’s root beer and cream soda are “made with aged vanilla.” In fact, the sodas are made with a synthetic vanilla flavoring. (The company has since dropped the claim from its labels and cans, according to court documents.)
And, as of July, it is his first case in which the judge certified the class – an important step in any class action lawsuit that allows the suit to proceed to discovery, and potentially, a trial.