EAST ST. LOUIS - Law clerks write orders for U.S. District Judge David Dugan but he will make an exception for a motion to impose a $155,810.45 sanction on Spencer Sheehan of Great Neck, New York.
On July 18 he told Sheehan, “In this case I wanted to get into it and try to understand what happened so I thought the best way to do that is take that file and do the writing myself.”
He said he leaned toward a finding of bad faith.
Arizona Beverages, maker of Arnold Palmer Lite drinks, wants Sheehan to pay for expenses it incurred after plaintiff Kenneth Crawford contradicted his complaint in a deposition.
Sheehan sued Arizona Beverages for Crawford in 2022, claiming labels on Arnold Palmer Lite deceived consumers.
He proposed a consumer fraud class action for 15 states.
He claimed a reasonable consumer would understand "lite" to mean a product is low in sugar and calories or lower than other products.
He claimed the product was not low in sugar or calories and it contained a similar number of calories to a can of soda.
He claimed a nutrition panel that showed a serving of 12 ounces misled Crawford because the 20 ounce bottle met the regulatory definition for a single serve container.
He claimed the panel implied that consumers would consume less than an entire bottle when they would instead consume the entire bottle
He claimed the label depicted a map and flag of the United States covered by the words “an American company,” but below the barcode the label stated “product of Canada.”
He claimed Crawford paid a premium for the product and would not have purchased it if he knew the representations and omissions were false and misleading.
Arizona Beverages attorney Robert Donovan of New Jersey deposed Crawford last year and showed him a label.
He asked Crawford if he ever purchased a product bearing that label and Crawford said, “When you break it down to the ounces I cannot confirm that.”
Donovan asked if it was fair to say the only products he knew for sure he purchased were the gallon container, the P-9, and the 23 ounce, P-5.
Crawford said, “No, that’s not fair to say.”
Donovan asked what other containers he remembered purchasing.
Crawford said “There’s a bottle that’s labeled one dollar that’s just a little larger than this water bottle sitting in front of me.”
Donovan asked if he knew whether or not it was 20 ounces.
Crawford said, “I think water bottles are, what, something like 16? It probably was 20 ounces.”
Sheehan responded by waiving all claims outside Illinois.
Arizona Beverages moved for summary judgment and Sheehan withdrew all claims in regards to any label statement except lite.
Dugan granted summary judgment to Arizona Beverages this March, finding Crawford could not confirm that he purchased the product with the label his complaint identified.
He found Crawford continued purchasing it after forming a belief that he was deceived.
He found Crawford preferred 23 ounce cans over the 20 ounce cans at issue in the suit and would purchase 20 ounces only when 23 ounces wasn’t available.
He found the 23 ounce product did not have the same serving size format of the 20 ounce product or the same statements about calories and sugar.
“Plaintiff chose to base his claim on the single product label identified in his complaint and there is no real indication that he ever saw the very label by which he now claims to have been misled,” he wrote.
He found misrepresentation didn’t determine Crawford’s decision to purchase the product.
“Without at least some evidence of actual damage, Plaintiff’s action cannot proceed,” he wrote.
“Plaintiff offers none.”
In the conference on July 18, Donovan called Sheehan’s conduct reckless pursuit of a frivolous claim.
He said he confined his request to expenses after the deposition.
Sheehan said Arizona Beverages intended to chill or punish him.
He said Crawford could have said different things.
“That’s always going to happen in depositions with a lay person,” Sheehan said.
Dugan said all plaintiff lawyers can say they’ve had cases go south.
“I’d sit down and talk to a client about trying to get it resolved now," Dugan said. “My concern is the decision to just press on.”
He asked Sheehan how price premium was legitimate support for his argument that the case should survive summary judgment.
Sheehan said, “While we hoped that it would survive summary judgment and we believed that it should -”
Dugan said, “Apart from hope I’m looking for your thinking at that time because it goes to the very issue that is raised.”
Sheehan said, “Mr. Donovan’s attempt to extract the lay witness’s opinion on damages, about were you injured, was notwithstanding objectionable but I knew that it was an attempt to extract a legal conclusion from a lay witness. This is something that plaintiff is not in a position to answer.”
Dugan said in seven and a half years as judge he awarded fees only once, “and it was absolutely egregious behavior.”
He said he wrote the order granting summary judgment.
"I seldom write these things myself,” he said.
“I have some very talented law clerks and I’m smart enough to realize they are in some instances smarter than me and better writers.”
Sheehan filed 29 consumer suits in the Southern Illinois district from 2021 through last year.
The suits lasted less than a year on average and none remain active.