TALLAHASSEE - The class action lawyer who has angered judges with his hundreds of novel theories of consumer deception at grocery stores and elsewhere is asking a Florida court to dismiss a lawsuit filed against him for suing the wrong company.
Ashley Furniture sued New York attorney Spencer Sheehan last year in Leon County Circuit Court after paying outside counsel $116,000 to prepare a motion to dismiss that was never filed. Sheehan had sued Ashley over warranties offered by a different company on products in stores not owned by Ashley.
Sheehan abandoned his case against Ashley but the company still wants payback, charging him with malicious prosecution. This claim fails, Sheehan says, on three of six fronts, including malice.
Ashley Furniture has cited emails between its lawyers and Sheehan notifying him that his claim was misplaced, with Sheehan refusing to do so.
"(T)he emails do not actually establish any malice," Sheehan's August motion to dismiss says.
"On the contrary, the excerpts provide that Defendant stated that he believes that Plaintiff bears some liability. Further, upon further investigation and discovery, Defendant filed a notice of voluntary dismissal without prejudice and stated that at this time, he does not intend to pursue a claim against Plaintiff.
"Such does not provide a basis for malice."
Sheehan has made a name for himself - for better or worse - with his novel concepts of consumer deception that have created hundreds of lawsuits and have increasingly drawn the ire of judges. One judge has called him a "wrecking ball," while another has held him in contempt for filing frivolous claims against Starbucks and is deciding on a punishment.
And Ricola revealed that he finds some of his plaintiffs through Facebook advertising. His plaintiff in the Ashley Furniture case was Katie Grasty, whose last name is now Vendewater and finds herself a defendant in Ashley Furniture's lawsuit.
"In September 2022, Defendants collectively set their sights on AFI - a Wisconsin-based furniture manufacturer that literally had no dealings with Ms. Grasty," says the company's complaint, filed this month in a Florida state court.
Grasty bought a sofa from an Ashley licensee, not one of its retail stores operated by Ashley Global Retail. She purchased a warranty from another company that denied her claim a couple of years later when the sofa broke.
The suit against Ashley, filed in New York federal court, targeted the warranty. Ashley's in-house counsel told Sheehan that he would need to sue either the licensee or the warranty company, but he proceeded with his suit anyway and even filed a motion for class certification.
In communication with Ashley's lawyer, Sheehan told them to "go file your Rule 11 motion" for sanctions and that he faces threats like that "all day long."
Ashley's outside counsel explained why Ashley was not the proper defendant, but Sheehan continued with the case. After the case was pending for three months, he told Ashley that thanks to his "independent research" he would voluntarily dismiss the case for no compensation.
"Defendants failed to conduct even a cursory investigation before making their false allegations," the suit against Sheehan says.
"Given publicly available information and the documents already in (Sheehan and Grasty's) possession, they knew their claims against AFI were meritless and had no chance of success.
"Notwithstanding such knowledge, Defendants pursued the Grasty complaint maliciously and in bad faith in order to extort a financial settlement from AFI."
Sheehan argues Ashley Furniture did not score a "bona fide termination" in favor of it that would lead to a malicious prosecution claim, claiming Florida courts don't consider voluntary dismissals without prejudice meet that standard.
As for whether Sheehan lacked probable cause to sue Ashley, he says he had that.
"Despite Plaintiff not being the seller of the furniture to Vandewater, it was only through discovery that an attorney would properly flesh out his legal theory, even if tenable, and whether the manufacturer of the furniture is liable for damages and the scope of the manufacturer's liability," he wrote.
Sheehan first gained notoriety as the "vanilla vigilante," filing a host of lawsuits that claimed vanilla flavoring in products did not contain traditional vanilla.
Sheehan has sued because the strawberry flavoring in Pop-Tarts comes from pears and apples and is dyed red. He complained Bagel Bites have cheese that is a blend made with skim milk and feature tomato sauce that contains ingredients consumers wouldn't expect (the judge hearing that case called his claims "unreasonable and unactionable").
Last year, he lost a lawsuit that said the fudge in fudge-covered Oreos should adhere to traditional definitions of "fudge" by containing more milk fat and not palm oil and nonfat milk.
He faces civil contempt proceedings in New York, and he's on the hook for $180,000 in attorney fees incurred by Big Lots to defeat a Florida class action that made the same claims an earlier loser in New York had made.