While a lawsuit taking Kraft Heinz to task for making microwaveable macaroni and cheese that doesn’t quite live up to the on-package promise of taking three and a half minutes to make may seem frivolous, it’s part of a subcategory of legal filings that are big business for some attorneys, and sometimes a headache for food companies.
Scott Hardy, president and CEO of litigation tracking website Top Class Actions, said in a 2021 interview that class action lawsuits give people a way to be made right when a company does something that causes an issue.
“That’s the whole reason class actions are put out there,” Hardy said. “You have a problem with a big corporation and you can’t sue them on your own for … [feeling cheated] out of $5 a month or 50 cents a purchase. But if you and 100,000 other people had that same problem, you should have a way to get it fixed.”
However, lawsuits are really just complaints filed in court. There aren’t any guarantees the cases will be considered. Rick Shackelford, co-chair of the Food, Beverage and Agribusiness Practice at law firm Greenberg Traurig, told Food Dive in 2021 that a class action lawsuit against a food company is like a freeway with a lot of off ramps. Manufacturers can move to dismiss the cases because of faulty legal arguments. A judge can decide that there is not an actual group of consumers who are actually harmed by the issue in the claim. And cases found to be more valid and are moving toward trial can be settled.
Many lawsuits that seem more outlandish get thrown out before the cases get close to trial. While most of the cases on the Institute for Legal Reform’s list were filed in the latter half of 2022 and are still going through preliminary motions, one lawsuit claiming Strawberry Pop-Tarts don’t contain enough strawberries was dismissed last March.
The Pop-Tarts case and many of the others on the list were filed by Spencer Sheehan, a prolific CPG class action attorney. According to Perkins Coie’s report on cases filed in 2021, Sheehan was responsible for filing a large proportion of all class action cases that year.
But regardless of whether the lawsuits are deemed “ridiculous” by legal reformers or represent a serious complaint a large number of consumers have, the first steps for food manufacturers are the same. The companies need to present a well-reasoned defense of their products, their ingredients, their labeling and how reasonable consumers understand all of those aspects. In a report from the U.S. Chamber of Commerce’s Institute for Legal Reform on the state of class action cases in food, the group recommends that companies continue to fight all of the cases instead of settling them, lest they inspire attorneys to file more class action lawsuits.