Serial Grocery Case Filer Gets Sanctions Warnings From Judges

Federal judges forced to consider the amount of lemon in lemon seltzer, the oil content of mayonnaise, and just how much cheese is in a pizza roll are hitting back at a serial lawsuit filer who shops the grocery store for litigation.

Great Neck, N.Y.-based attorney Spencer Sheehan has filed more than 400 consumer fraud lawsuits against deep-pocketed companies since 2020 in federal districts across the country. Federal judges in Illinois are openly questioning whether some of those cases fail to properly assert legal violations and instead add to the clutter of already heavy caseloads.

“Spaghetti is best eaten, not thrown at walls,” Judge Iain Johnston wrote, dismissing one of Sheehan’s recent cases. At the dismissal, Johnston added that he’s not the only judge tired of these cases. Judge Steven Seeger threatened Sheehan with sanctions, including forcing him to pay the legal costs of defending against his lawsuits if they continue.

“The Court echoes Judge Seeger’s sentiment,” Johnston wrote. The judge reminded Sheehan “of his obligations under Federal Rule of Civil Procedure 11,” a rule penalizing attorneys for filing improper lawsuits.

Seeger said his courtroom “has gone round and round the carousel a number of times” dealing with Sheehan’s purportedly frivolous filings.

“It is time for the carousel to come to a halt.”

Attorney Fee Wrecking Ball

Federal judges frustrated with Sheehan’s complaints have threatened to turn the tables and require him to start paying defendants’ legal fees.

“Plaintiff’s counsel has become a wrecking ball when it comes to imposing attorneys’ fees on other people. And this Court is starting to wonder who should pay for the cleanup,” Seeger wrote.

However, it’s not clear if judges or lawyers will push for sanctions because of the seriousness of the penalty and the resulting acrimony. The situation may be complicated by state disciplinary agencies that regulate lawyers through licensure, and the interplay between those regulatory agencies and the federal bench.

Sheehan’s consumer complaints, many of which have been filed in Illinois federal courts, regularly claim companies have engaged in deceptive and misleading practices in their packaging.

Sheehan’s clients have claimed Walmart Inc.‘s mayonnaise “with olive oil” doesn’t contain enough of the oil to qualify as mayonnaise (Guzman v. Walmart Inc.), a “rich and creamy” caramel candy doesn’t contain butter or cream and only a de minimis amount of milk fat (Gardner v. Ferrara Candy Co.), and a pizza roll doesn’t have enough real cheese in it to carry the moniker “cheese” on its packaging (Smith v. General Mills Sales Inc.).

Many of Sheehan’s complaints filed in Illinois federal court assert companies have violated the Illinois Consumer Fraud and Deceptive Business Practices Act, which holds companies can’t make misleading and deceptive representations on product labels, and the federal Magnuson-Moss Warranty Act, typically alleging companies have violated disclosure standards required by the Federal Trade Commission.

Sheehan didn’t respond to a request for comment.

Whack-A-Mole

Targets of Sheehan’s litigation have alleged that he’s violating Rule 11 of the Federal Rules of Civil Procedure.

That rule says that by filing pleadings and other papers with the court, plaintiff’s counsel certifies the filings are not being presented for any improper purposes, are not frivolous, and contain allegations that have evidentiary support. Lawyers in a case may ask a judge for a Rule 11 ruling, and judges may impose sanctions by approving the request.

Imposing a Rule 11 violation against a lawyer is a major matter that could have a far-reaching impact on a practitioner’s reputation; judges take it very seriously, Jenner & Block LLP partner Andrew Vail said in an interview. Some judges—perhaps more junior judges—have shown they may be more receptive to sanctioning lawyers as a general downturn in the civility of practicing law has led to more aggressive lawyering, Vail said.

“I think you may be starting to see more judges facing a lack of compliance with Rule 11—or comparable state laws—and being forced to address, and at times entertain, appropriate relief for that non-compliance,” Vail, a trial lawyer, said.

“MDLZ brings this motion because no other method of attempting to stop Plaintiff’s counsel from forcing MDLZ to defend against frivolous lawsuits has worked thus far, and regardless of how many times courts dismiss the lawsuits brought against MDLZ by Plaintiff’s counsel’s firm, another one is filed, asserting the exact same claims. Here, MDLZ seeks relief from this expensive game of whack-a-mole,” lawyers for Mondelez Global LLC (MDLZ) said in asking the court for a Rule 11 ruling against Sheehan.

Judges also have authority to sanction lawyers for conduct other than filing frivolous lawsuits, such as lying to the court, intimidating witnesses, or defying court orders. Most of the time those sanctions will be monetary penalties.

State lawyer regulators, such as disciplinary commissions, typically will wait until a trial is over before filing ethical-violation charges that could result in disbarment. “Regulators typically are loathe to be an appellate tribunal looking over a judge’s shoulder. Regulators really should not be in a position to interfere with court processes,” said James Grogan, a former Illinois Attorney Registration and Disciplinary Commission chief counsel.

For now, judges are fighting back with a war of words. In Matthews v. Polar Corp., Sheehan’s client claimed a lemon seltzer didn’t contain enough real lemon juice to include the word “lemon” on its aluminum-can packaging.

“If Plaintiff wants the nutritional value of lemon juice, then she can drink lemon juice,” Seeger wrote. “But lemon juice, like the complaint, is tough to choke down.”