EAST ST. LOUIS – U.S. District Judge David Dugan dismissed a suit alleging misrepresented "pure" ingredients in shaving cream against Procter & Gamble on Aug. 17, and he issued a warning to lawyer Spencer Sheehan by citing a judge who called Sheehan a "wrecking ball."
Dugan dismissed the complaint without prejudice but stated he’d dismiss it with prejudice in two weeks if Sheehan hadn’t amended the lawsuit in good faith.
He reminded Sheehan of his obligations under procedural rules.
“Should Plaintiff’s counsel fail to comply with these obligations the Court will consider following the growing number of district courts who have found it appropriate to dismiss Plaintiff’s claims with prejudice on this basis,” he wrote.
Sheehan practices in Great Neck, New York.
He filed 28 product liability suits alleging misrepresented ingredients in the Southern Illinois district from May 2021 through December 2022, a rate of one every three weeks.
Among the 28 cases Sheehan filed in the Southern Illinois district in 2001 and 2002, all but seven have closed.
After his rapid run of cases in 2021 and 2022, he has filed one suit this year.
He sued Procter & Gamble for Illinois resident Gregory Taylor last October, claiming the name of its Gillette Pure shaving cream deceived shoppers.
He claimed Procter & Gamble altered ten of the14 ingredients from their natural state, and four ingredients were toxic or harmful.
Sheehan alleged consumers believed pure meant incapable of causing harm.
He claimed the label stated “with aloe,” but Taylor didn’t get as much aloe as he expected.
Sheehan proposed to certify an Illinois class for breach of warranty, negligent misrepresentation, common law fraud, and unjust enrichment.
He also proposed a consumer fraud class for Illinois, Iowa, Kansas, Kentucky, West Virginia, Utah, Wyoming, and Alaska.
Procter & Gamble sought dismissal through attorney Jeffrey Jacobson of New York City.
Dugan’s order in favor of Procter & Gamble found plaintiff Taylor’s claims all failed because he didn’t allege deception.
He found a few cases on the meaning of "pure," stating they held that reasonable consumers understood it to mean that a product didn’t contain other substances or ingredients.
He found those cases primarily concerned food products or products with single ingredients.
“Thus, as an initial matter, to accept plaintiff’s assumption that pure in this context means the product only contains unaltered ingredients in their natural state, it is unclear what forms plaintiff or any reasonable consumer could have expected these ingredients to take to ultimately result in the functional shave cream plaintiff purchased,” he wrote.
“This differs from other pure product claims because those products all made purity representations separate from product names,” he added.
“Accordingly, the Court is not persuaded that plaintiff has sufficiently alleged that a reasonable consumer would understand pure in this context to mean the shave cream product contains unaltered or not significantly altered ingredients, opposed to containing ingredients that are free from other impurities or contaminants not essential to the product,” he continued.
Dugan found the allegation that pure means incapable of causing harm more plausible.
He found Taylor claimed potassium hydroxide is a highly toxic and hazardous synthetic compound, triethanolamine causes skin irritation and other harmful effects, and phenoxyethanol is toxic to liver, kidneys, and nervous system.
He found Taylor didn’t allege that a reasonable consumer would believe these ingredients rendered the product harmful in the same way they were alleged to be harmful in isolation.
“Indeed, plaintiff has not alleged that he was harmed by the product or that the product was capable of causing harm,” he wrote.
“Therefore, even understanding pure to mean not capable of causing harm, plaintiff has not sufficiently alleged that this statement is false, deceptive, or misleading,” he added.
On the aloe argument, he found reasonable consumers understand that a product made with an ingredient does not mean that the product was made exclusively of the ingredient.
Other courts respond to Sheehan's lawsuits
In Dugan's order, he noted a separate lawsuit in which Northern Illinois District Judge Steven Seegar dismissed Sheehan's claim that Walmart sold mayonnaise with less olive oil than plaintiff Jeremy Guzman expected.
Seeger found Sheehan “peddled this theory time and again, in case after case, without much success in this district.”
He found Sheehan developed a fair bit of notoriety for filing cases about consumer labeling.
He found many complaints suffered the judicial equivalent of a crash landing.
Seeger added that filing cases imposes significant costs on parties and the judiciary.
"Plaintiff’s counsel has become a wrecking ball when it comes to imposing attorneys’ fees on other people," he wrote.
Seeger found frivolous cases aren’t fair to countless other litigants in countless other cases.
He directed Sheehan to show cause why he should not have to pay Walmart’s attorney fees.
“Plaintiff’s counsel has taken everyone on a ride, and Plaintiff’s counsel must show who should pay for the ticket,” he wrote.
Seeger directed Sheehan to send a spreadsheet of cases he filed since 2020 with the same theory.
Sheehan sent a spreadsheet of about 170 cases.
Walmart counsel August Horvath of the Foley Hoag firm in New York City responded that it might not be apparent from the list how low the success rate was.
He claimed his firm moved to dismiss 12 cases on the list, and plaintiffs unilaterally dismissed all of them before the motions could be decided.
“None was settled for any conduct or monetary relief,” he wrote.
He claimed he didn’t know the disposition of 31 similar cases on the list, but he suspected several were dismissed without settlement.
“In sum, decided motions to dismiss the cases in the case list were granted 82% of the time and of the cases that were closed while a motion was pending, many were withdrawn unilaterally rather than settled,” he wrote.
Sheehan answered Seeger’s show cause order by stating he should ask why no court sanctioned his firm in hundreds of cases against the world’s biggest food companies and biggest law firms.
He told Seeger he seemingly discovered something hundreds of courts failed to recognize.