LOS ANGELES - Hershey’s is defending a class action lawsuit by attacking the motives of the plaintiff – a disbarred attorney who has filed hundreds of lawsuits and wrote a how-to-sue book.
Last month, The Hershey Company, headquartered in Hershey, asked a Los Angeles federal judge to dismiss the lawsuit filed by David Greenstein, a man who says he purchased a pack of Jolly Ranchers and was disappointed to find 50 percent of the packaging was empty – commonly referred to as “slack fill.”
But Hershey’s says there is no chance Greenstein could have been deceived because he’s filed so many of these lawsuits in the past. In fact, he’s a well-known professional plaintiff who authored the book “Sue and Grow Rich: How to Handle Your Own Personal Injury Claim Without an Attorney.”
“Plaintiff has a long-standing history of initiating litigation of all types, but most recently his focus appears to be on filing slack-fill lawsuits,” attorneys for Hershey’s wrote.
“In the last six months alone, Plaintiff has filed at least 13 slack-fill cases in California courts, including this one.”
Among his recent causes have been:
-One lawsuit over slack fill in seven products – including Island Snacks pistachios, Kellogg’s Krave and Keebler Vanilla Wafers – that was dismissed for lack of prosecution in 2015. Greenstein argued he had voluntarily dismissed the case;
-A lawsuit over slack fill in Pictsweet Brussells Sprouts that was settled in August 2016; and
-A lawsuit against Kraft Heinz over claims its Parmesan cheese product was 100 percent grated Parmesan cheese. Greenstein, like dozens of other plaintiffs, argued this was false because the cheese contained filler products.
“Plaintiff is not an innocent consumer deceived by a company’s packaging, but rather a serial litigant looking for his next case,” wrote Matthew Kaplan of Tucker Ellis, which is representing Hershey’s.
Greenstein was even profiled in a 1996 Los Angeles Times article because of his litigious nature. The article says, at the time, he had filed more than 100 lawsuits.
His targets included UPS for allegedly ruining his Star Trek posters, his ex-wife and his wedding photographer.
“Hershey is not giving plaintiff credit; he has actually filed in excess of 100 cases in his lifetime with at least 15-20 being based on slack fill issues. Does this fact make plaintiff’s current claim wrong?” Greenstein wrote in a reply to the Hershey’s motion to dismiss.
“As far as plaintiff knows, there is no limit to the number of lawsuits he can file. The only limitation known is if he is classified as a vexatious litigant. Plaintiff has never been found to be a vexatious litigant, or in fact, even had such a motion to have him declared one made.”
The Los Angeles Times profile chronicles Greenstein’s expulsion from high school and how he shot his father during a struggle to protect his mother when he was 18.
Years later, he earned a law degree from San Fernando College of Law and was admitted to the State Bar of California. His career as an attorney did not last long.
In 1970, Greenstein was charged with three felony counts over the dismantling of his own Porsche. Eventually, he pleaded guilty to conspiracy to commit grand theft, grand theft of an automobile and destruction of insured property with intent to defraud the insurer.
“That crime involves moral turpitude,” the California Supreme Court wrote in an opinion disbarring him.
Rehashing the past is not an effective defense, Greenstein is arguing. His reply lists his successes – “Three (or maybe four) companies, with multimillion dollar sales, have totally redesigned their product packaging to include a viewing panel so the consumer can fully view the content of the package. This was due to plaintiff’s lawsuits.”
Hershey’s doesn’t want to be on that list. The packaging in question is made out of soft plastic, and consumers can literally feel each individual Jolly Rancher and count – if they wanted to.
“Given Plaintiff’s history, it requires suspension of common sense to believe that Plaintiff was deceived into purchasing the Jolly Rancher hard candy,” Hershey’s argues.
As for a technical argument, Hershey’s says Greenstein does not have standing to sue under California’s Unfair Competition Law or False Advertising Law because he has not pleaded an actual reliance on the alleged misrepresentation of the slack fill caused him to purchase the product.
From Legal Newsline: Reach editor John O’Brien at jobrienwv@gmail.com.