Consumer crusader — or opportunistic lawyer?
In recent years, Spencer Sheehan has filed hundreds of lawsuits against the food and beverage industry — like the lack of strawberries in Whole Grain Frosted Strawberry Pop-Tarts and the dearth of real vanilla in Chobani’s Oat Vanilla and Oat Strawberry Vanilla Yogurt.
The Great Neck, NY-based attorney has gone after vanilla flavoring in food products so many times that he has been dubbed the state’s “Vanilla Vigilante.”
For the past two years, Sheehan, 42, has been involved in more lawsuits against the food and beverage industry than any other lawyer in the state. That’s according to a new report from the American Tort Reform Association, a Washington, DC, nonprofit that seeks to reduce lawsuit abuse.
Last week, the group named New York State as the country’s second-worst “judicial hellhole” — the top offender was California — and Sheehan was called out for his contributions.
“Infamous Long Island attorney Spencer Sheehan, also known as the ‘Vanilla Vigilante,’ continues to prolifically file lawsuits specializing in product flavoring,” the ATRA report said. “Sheehan filed half of the state’s consumer class action lawsuits in 2019 and almost two-thirds in 2020.”
There were 183 consumer class actions in New York state in 2020, according to ATRA.
And 2021 promises to be “a record year for food litigation filings” — with more than 300 food-related cases filed to date across the country, according to Tommy Tobin, an attorney at Perkins Coie, who teaches a seminar on food litigation at UCLA Law School.
“New York courts have been the most popular forum for these cases, thanks in part to the large number of filings challenging the labeling of food products labeled with the word ‘vanilla,’ ” Tobin told The Post. “We have identified more than 120 suits filed over the past two years regarding vanilla . . . This is a remarkable trend and represented about a quarter of overall food litigation filings in 2019 and 2020.”
Dubbed “the king of New York’s consumer class actions” by the New York Civil Justice Institute earlier this year, “Sheehan’s unrelenting cascade of lawsuits has contributed to New York becoming the nation’s top jurisdiction for food litigation and an overall hot spot for consumer class actions,” said the Albany-based nonprofit in a June report.
Sheehan began 2021 by filing a January class-action lawsuit against 7-Eleven’s marketing of Yumions Crunchy Onion Snacks. According to court papers, the bag of snacks, which are shaped like onion rings, features images of green onions but only contains onion powder.
“Since each part of the onion — bulb, root, stem and skin — has unique flavor and aroma compounds, onion powder necessarily is unable to provide the ‘oniony’ flavor appreciated by consumers,” says the class action complaint filed in Manhattan’s Southern District court.
In April Sheehan’s law firm reached a settlement with Blue Diamond over a proposed federal class action about the company’s Almond Breeze vanilla-flavored milk and yogurt products.
While Sheehan may argue that he’s standing up for the little guy, he’s the one who usually gets paid. The $2.6 million settlement with Blue Diamond, for instance, awards $1 per item with proof of purchase and 50 cents per item without to consumers who bought the products between April 15, 2014, and May 17, 2021. According to ATRA, Sheehan’s firm could receive as much as $550,000 for its fees from the settlement.
In October, Sheehan targeted Kellogg’s Pop-Tarts in a $5 million class-action complaint. The lawsuit claims that the sugary toaster pastries’ Whole Grain Frosted Strawberry variety contains no actual strawberries. The main plaintiff, New Yorker Elizabeth Russett, claims that the company’s marketing of the Pop-Tart deceived consumers because the pastry contains much higher quantities of pears and apples than it does strawberries.
Sheehan, who has an undergraduate degree from Georgetown University and graduated from Fordham University Law School, according to his LinkedIn page, includes detailed diagrams and even photographs in his court filings, dissecting the complex chemical compounds in flavoring of food products.
In June, Sheehan’s New York State Supreme Court filing against Chobani — over the vanilla flavoring in two of its yogurt products — deconstructed the history and production of the vanilla bean from an orchid in Madagascar to the chemical synthesis that produces a vanilla-like taste but is not actually the real thing.
His conclusion: the word “vanilla” is misleading on the Chobani label for its oat-based vanilla and vanilla strawberry yogurts because they don’t really include vanilla in its purest form, according to court papers.
“Although the flavoring used to simulate the Product’s characterizing vanilla flavor is
(1) not from vanilla beans, (2) from artificial petrochemical sources and (3) made through artificial processes, Defendant pretends otherwise, conflating natural and artificial flavoring and deceiving consumers,” court papers say.
It’s not the first time that Sheehan has targeted the yogurt maker. Last year, he sued Chobani in Manhattan federal court, accusing the company of misleading consumers about the amount of sugar in its reduced-sugar Greek yogurt.
Sheehan did not immediately return The Post’s request for comment, but told the newspaper earlier that ATRA’s report had little merit.
“If the suits I was filing were indicative of the ‘hellhole’ they describe, surely courts would be sanctioning them and penalizing me,” he said. “But they’re not because there is thankfully no restriction on consumers from trying to keep companies honest.”
But Sheehan’s luck may be running out.
“Multiple judicial opinions out of New York’s federal courts have dismissed cases predicated on this ‘vanilla-labeling’ theory,” said Tobin. “Recent judicial decisions indicate that New York courts are growing increasingly impatient with this theory.”
In June, a US District Court Judge dismissed a proposed class action brought by Sheehan against Mars Wrigley in which plaintiffs alleged that the company had violated New York’s consumer protection laws in the marketing of their vanilla-flavored ice cream sandwiches.
Judge Raymond Dearie ruled that the plaintiffs had failed to show that “a reasonable consumer . . . would be misled by the phrase ‘vanilla ice cream’” because the case, like so many of the vanilla cases before it, did not allege that the “the ice cream bars do not taste like vanilla.”