FOOD BEVERAGE D I G E S T MAY 2 0 2 3 | 7 Motions to Dismiss Procedural Posture: Granted Case About Carbonated Lemon Water Leaves “Court with a Sour Taste in Its Mouth” Matthews v. Polar Corp., No. 1:22-cv-00649 (N.D. Ill. Mar. 22, 2023). It’s not every day the federal judiciary pens a pun worthy of a title line in this digest. But one federal judge in Illinois did not pull any punches in expressing to plaintiffs’ attorney Spencer Sheehan exactly how he felt about Sheehan’s litany of consumer fraud cases in the Northern District of Illinois and across the country. The actual complaint and order granting the defendant’s motion to dismiss offer little fizz compared to the rest of the action on the docket. Representing an Illinois citizen, Sheehan alleged that the defendant’s representation of its Polar brand lemon seltzer product is false, deceptive, andmisleading because the seltzer lacks the amount and type of lemon ingredients expected by consumers. The defendant’s motion to dismiss was granted in a two-line minute entry on the docket. Obviously, the story doesn’t end there. Two weeks after granting the defendant’s motion to dismiss by minute entry, the court entered a second, much longer, minute entry. In it, the judge remarked that “[w]hile reviewing the caselaw in this area, [the] Court could not help but notice a few common threads.” We’ll paraphrase: Attorney Sheehan files a ton of these suits and seems to lose on motions to dismiss a lot. In the judge’s words: Sheehan is “seemingly covering just about every aisle in the grocery store, without much success.” And the court remarked that while “attorney Sheehan keeps bringing cases about how to read product labels … he can’t seem to read the tea leaves from the judiciary.” Given that “track record,” the court questioned whether Sheehan’s filings comply with the Federal Rules and ordered Sheehan to prepare and file an Excel spreadsheet identifying all consumer fraud cases that he has filed in any federal court since January 1, 2020. Sheehan complied. And then some. The“and then some”drew a strong rebuke from the bench. In fact, the judge lamented Sheehan for including so much information in his filing as to render “the spreadsheet unreadable to any pair of eyes old enough to peer from behind the bench.”“Less is more,” the court said. And the court ordered Sheehan to “redo it.” Sheehan complied with the court’s instructions, given the second chance, and filed an exhibit displaying the hundreds of cases that he’s filed since 2020, including whether those cases managed to survive a motion to dismiss. In its final minute entry, the court recognized the plaintiff’s notice of voluntary dismissal (filed nearly a month earlier) and closed the case, but not before providing our title line quote and leaving Sheehan with these parting words: Suffice it to say that this case about carbonated lemon water has left this Court with a sour taste in its mouth. The theory of the case was not close to viable. The facial deficiency of the complaint prompted this Court to order Plaintiff’s counsel to file a spreadsheet identifying all similar consumer cases that he has filed across the country. This Court will keep that spreadsheet in hand and in mind, just in case Plaintiff’s counsel files another case in this district with the same basic theory. Going forward, counsel should proceed with eyes wide open. Federal Court Finds Chicken Broth Labeling Impeckable Henry v. Campbell Soup Co., No. 1:22-cv-00431 (E.D.N.Y Mar. 31, 2023). The plaintiff in this New York federal court wound up with egg on her face when the court dismissed her putative class action filed against the defendant’s chicken broth product. The plaintiff alleged that the defendant’s “NO MSG ADDED” label was false and misleading because the chicken broth purportedly contained some glutamate (a form of monosodium glutamate (MSG)). The defendant peckedback, moving to dismiss the complaint, arguing that its chicken broth label could not plausibly deceive a reasonable consumer, particularly based on the clarifying language that appears next to the broth’s “NO MSG ADDED” statement. Carefully eggs-amining the label, the court considered a disclaimer adjacent to the product’s “NO MSG ADDED” statement, which explains that the product does contain some glutamate because a “small amount of glutamate occurs naturally in yeast extract.” To the defendant’s egg-citement, the court agreed that the disclaimer on the product label “wholly undermines Plaintiff’s claim of consumer confusion.” In evaluating the disclaimer, the court also found that it “confirms, rather than contradicts or supplements, the information contained on the front of the package.” Further, while the disclaimer was in a smaller font, it still appeared in close proximity to the claim, was bolded and in all caps, and was in a contrasting font color. The court took care to distinguish a different New York action in which a disclaimer was on the back of the packaging. Likewise, the court distinguished the “narrow” disclaimer here—that no MSG was “added”—from other false advertising cases, where the defendants attempted to include a “broad” disclaimer, such as “All Natural” or “Total 0%.” Unlike in the broad disclaimer cases, here, the court held that the representation was narrow and could not mislead a reasonable poultry product purchaser. Leading the plaintiff to the eggs-it, the court also rejected the plaintiff’s argument that the label violates FDAguidance. The court concluded that the FDAguidance on“NOMSGADDED” labeling statements pertains only to stand-alone statements. Because the defendant’s chicken broth label here includes a disclaimer, the FDA guidance did not apply. For these reasons, the court dismissed the plaintiff’s claims for violation of New York’s state consumer law, breach of express warranty, and Magnuson–Moss Warranty Act, closing the case.
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