11th Circuit upholds $144K sanction against food industry lawyer for repeating failed allegations in second suit
A federal appeals court has upheld a $144,000 attorney fees sanction imposed on New York food labeling lawyer Spencer Sheehan for filing a false advertising claim against Big Lots in a Florida federal court that repeated allegations in a failed lawsuit in another jurisdiction.
In an Aug. 27 opinion, the 11th U.S. Circuit Court of Appeals at Atlanta upheld a determination that the attorney time was reasonable, as were the hourly fees of $625 to $950. The appeals court also rejected Sheehan’s argument that the award was an excessive fine in violation of the Eighth Amendment.
The sanction represented attorney fees incurred by Big Lots in connection with motions to dismiss the suit and award attorney fees. The discount retailer was represented by Davis Wright Tremaine.
Sheehan is known for his suits against food companies for alleged misleading claims on their labels. His suits have contended that “fudge” cookies aren’t coated with real fudge, “strawberry” pastries also contain other fruits, detergent laundry load claims are misleading, and products with “vanilla” have flavoring that does not exclusively come from vanilla beans.
According to past coverage by Reuters, Sheehan filed more than 500 consumer suits over allegedly false and misleading labels between January 2020 and April 2023.
Sheehan’s Big Lots suit, filed in the U.S. District Court for the Middle District of Florida, had alleged that the retailer used labeling that inflated the number of servings in cans of its Fresh Finds coffee. The 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.”
Senior U.S. District Judge Gregory A. Presnell of the Middle District of Florida had tossed the suit in March 2024 after noting that a federal judge had dismissed a “nearly identical” suit filed in the U.S. District Court for the Western District of New York.
The New York court said Sheehan’s claim focused solely on the instructions for brewing a single serving of coffee while overlooking instructions for larger batches that required 20% less ground coffee. When considering the label as a whole, a reasonable consumer would not be misled, the New York court concluded.
Presnell also faulted Sheehan for failing to follow local court rules by repeatedly failing to file pro hac vice motions in cases filed in the Middle Distrit of Florida federal court. Presnell said Sheehan appeared in 29 cases but filed filed pro hac vice motions in only two out of 24 cases in which he was directed to file them.
Sheehan did not immediately respond to a request for comment sent by email and left in a voicemail with his law firm.
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