A notorious class action lawyer is on the hook for nearly $150,000 in attorney fees after bringing a case that had no chance of winning.
In a September 25 order, U.S. District Judge Gregory A. Prennell granted Big Lots’ motion that New York attorney Spencer Sheehan and plaintiff Peggy Durant are liable for $144,047 for money Big Lots paid for its successful motions to dismiss and for attorney fees. That attorney, Jacob Harper of Davis Wright Tremaine, also sought a 25 percent upward adjustment as a “reflection of the extraordinary circumstances of this case,” but Prennell denied that request.
Earlier this year, Prennell had dismissed Durant’s case alleging Big Lots violated state consumer fraud and misleading advertising statutes. The battle over attorney fees began this spring.
Language in court orders against Sheehan in his hundreds of consumer deception class actions has been harsh, with one judge calling him a "wrecking ball." Another in New York has found him in contempt. On July 3, Florida federal judge Gregory Presnell found Sheehan perpetrated a fraud on his court.
Essentially, it was found Sheehan brought a lawsuit against Big Lots in Florida with a new plaintiff after the same allegations had failed in New York.
"Plaintiff (Durant) also implies that she could not have been a party to the New York action as a Florida resident and therefore this case was not frivolous," Presnell wrote.
"This dubious argument underscores the frivolity Sheehan and his enablers inflict upon the judiciary and his defendants, carefully crafting his complaints so that when a judge in one district or division rules against him, he can 'in good faith' re-file the same or similar action elsewhere in hopes of achieving success."
He advertises on Facebook to find new plaintiffs, such as a woman who used Ricola cough drops for more than 20 years before deciding to sue.
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.
But it wasn't that he filed a case that he knew was a loser that angered Judge Presnell the most. Sheehan partnered with lawyer William Wright on the case, with both names on the complaint.
When Big Lots asked that Sheehan pay its attorney fees, they said Sheehan was not counsel of record because he had never asked for pro hac vice admission to the Middle District of Florida.
Presnell said he found 29 cases in which Sheehan has appeared as counsel in that district, and in 24 he has been explicitly directed to move for pro hac vice admission. However, he has only done so twice.
Wright apologized in the Big Lots case and pledged to have Sheehan's name removed, adding he didn't think Sheehan's involvement in the case constituted an appearance unless he filed a motion for special admission.
"Thus, goes his story, his haste in acting to correct this 'misunderstanding' plainly shows this was an innocent, harmless error," Presnell wrote. "Unfortunately, however, this story fails to square with the facts."
Wright's claim he didn't know of the failed New York case also drew skepticism - it "not only stretches the bounds of his credibility to breaking point but, if true, evidences his unwillingness to undertake even the most basic act of diligence to verify the veracity and integrity of his filings."
Wright has been ordered to show why he shouldn't be included in Sheehan's punishment. Sheehan's plaintiffs claimed the Fresh Finds brand coffee at Big Lots claimed to make up to 210 suggested strength 6 oz. servings but actually didn't.
But judges found those plaintiffs didn't pay enough attention to other serving instructions on the package.