May 22, 2024
Burger Suing King
Delray Beach attorney Anthony Russo is suing Hershey for false advertising over a Halloween version of its Reese's Peanut Butter cups. He says his firm is actively looking into a dozen other cases in which it might file class actions.

Photo: Eileen Escarda

Burger Suing King
Anthony Russo has sued Wendy's, McDonald's, Arby's, and Taco Bell for alleged consumer fraud for ads that portray products in quality and portions superior to what consumers actually get in stores. He sued Amazon for suspending rapid delivery in the early days of the pandemic, which he argued was a breach of contract with its Prime members. A judge disagreed.

Photo: Photo Illustration

Law

Burger Suing King

A Florida firm has carved a niche in fast-food and candy class actions.

Mike Vogel | 4/16/2024

If you don’t know Delray Beach attorney Anthony Russo by name, you perhaps know his firm’s work. He sued Wendy’s, McDonald’s, Arby’s and Taco Bell for alleged consumer fraud for ads that portray products in quality and portions superior to what consumers actually get in stores. He sued Amazon for suspending rapid delivery in the early days of the pandemic, which he argued was a breach of contract with its Prime members. He sued candy maker Hershey over alleged fraud in its Reese’s packaging. (Wrappers showed the likes of jack o’-lanterns but the actual candy lacked detail.)

The cases got media attention and Russo got emails. Such as: “You’re the lowest form of life” to sue over a $5 hamburger, he says he recalls one saying. “Are you that desperate?” he says another asked. But others, he says, called him a “modernday hero” and a “Robin Hood.”

“I like the David and Goliath analogy,” Russo says. “It’s holding corporate America accountable.”

The actions are part of a broad category of complaints labeled consumer fraud that includes debt collection, product malfunctions, privacy and misleading marketing. It’s the second largest type of class actions companies face, according to an annual survey of Fortune 1000 companies by Tampa law firm Carlton Fields.

Last year, 18.8% of such companies surveyed by the firm faced a consumer case, down slightly from 21.7% in 2022. Companies’ in-house legal departments spent 18.9% of their budgets defending against such cases. Carlton Fields attorney D. Matthew Allen, chair of the firm’s national class action defense practice, says a handful of plaintiff attorneys can drive a lawsuit trend. He said in an online webinar that 20% of the consumer cases in the federal Middle District of Florida, which encompasses the Naples, Tampa, Orlando and Jacksonville areas, came from a single Tampa firm. Five of the nation’s busiest federal judges when it comes to handling consumer cases were in the Middle District. A single Fort Lauderdale firm accounted for 30% of consumer cases in the Southern District, which runs from Indian River County to the Florida Keys, he says.

Delray Beach attorney Anthony Russo is suing Hershey for false advertising over a Halloween version of its Reese’s Peanut Butter Cups. He says his firm is actively looking into a dozen other cases in which it might file class actions.

Russo, 58, has practiced in Southeast Florida for 29 years after graduating with a law degree from Nova Southeastern’s law school in Davie in Broward County.

He says it took him years to develop the professional maturity and expertise to love practicing law. “At 15 to 20 years, you really become a lawyer. You get your stripes,” he says. Also, he says, he reached the stage where he didn’t have to take every case that came in the door.

While he declined to discuss finances, he and his wife were in the news in 2016 for selling their Fort Lauderdale home for $5.1 million. The same article described him as “well known as a Democratic fundraiser” with the firm website then — but not now — displaying pictures of him with Bill Clinton, Joe Biden and Bob Graham. He says he has curtailed his political donations since then. The Russos live in a Fort Lauderdale riverfront condo valued at $3.67 million by the county property appraiser.

He doesn’t do billboards or TV ads — the bane of Florida’s business group leadership — and generally markets through his firm’s website. The practice relies for work on former clients, media attention, community awareness and referrals from other lawyers. The named plaintiff in the Hershey class action, for instance, Cynthia Kelly, was represented by the firm in a vehicle accident.

With its four full-time attorneys, the firm handles more than 500 cases a year. Up to 85% of the firm’s practice consists of run-of- the-mill personal injury cases involving car accidents and slip-and-falls, Russo says. The rest of the business is class actions, mass torts and individual consumer relief cases.

His first mass tort cases were in the 1990s over Fen-Phen, the anti-obesity “miracle” drug combo found to cause heart illness. It was a “different game” then, he says. He recalls for Fen-Phen litigation, how the firm he then was with rented a hotel ballroom and brought in medical professionals and ECG equipment to screen a couple hundred potential claimants. Now, many firms pay marketing firms to generate mass tort leads. Russo says he has paid lead generators in the past but most of his mass torts now come from other lawyers or his firm’s website.

He dropped out of the mass tort line after Fen-Phen but got back in several years ago. Since returning, he’s signed clients in cases — thousands, he says — familiar to anyone who watches TV: 3M’s military earplugs, Monsanto’s RoundUp, Camp Lejeune water, PFAS fire-fighting foam, the Essure contraceptive device and, as an alleged cause of autism, Tylenol.

He was in New York for the hearing in December in which the federal judge presiding over the Tylenol mass tort essentially killed the cases by ruling the plaintiff expert testimony was inadmissible.

The next wave of mass torts, Russo says, will be over Ozempic and Suboxone. Weight loss has become a popular use for the diabetes drug Ozempic and people have been injured by the medication, he says. With opioid addiction treatment Suboxone, the issue is tooth decay. “These are hard cases. We know going in it’s going to be tough,” he says.

His class action work got going with the Amazon case in January 2021. The potential payday was promising with 118 million Prime members paying $13 a month. “I thought it was a pretty good class action suit,” he says.

The judge didn’t and tossed it. Says Russo, “Not only that, he kicked it pretty hard in the ass on the way out to make sure it didn’t come back.” (The judge found it ironic that Amazon’s decision to prioritize essential goods in the pandemic sparked a claim that its action was “unconscionable.” In an “unprecedented global public health crisis,” the judge said, failing to shift priorities is what might have been unconscionable.)

The Amazon case’s upside, Russo says, was that it introduced him to his New York law partner, James C. Kelly, who Russo considers the brains of the class action operation. The Amazon case demonstrates that filing class actions isn’t the same as winning them. The McDonald’s and Wendy’s cases were dismissed. Cases against Burger King and Arby’s are pending as is the Hershey case.

Russo won’t discuss the Taco Bell case but online records from federal court in New York show the claim was false advertising. The suit came with side-by-side images of Taco Bell ads and actual purchased Mexican Pizza and other products. The suit said Taco Bell “materially overstates” ingredients by “at least double the amount.” The Mexican Pizza purchased for $5.49 (plus tax) in Ridgewood, N.Y., had “half of the beef and bean filling” expected from the ad, the suit said.

Court records show the Taco Bell case in November was voluntarily dismissed, which is often a sign of settlement. Efforts to obtain comment from Taco Bell and the other companies he sued were unsuccessful.

Russo says his firm’s cases aren’t about the $2 candy bar or $5 hamburger, but rather the tendency of companies to squeeze out more profit to the detriment of quality and consumers. “It’s a symptom of a larger problem. It’s really a mindset we’re trying to change.”

“I feel blessed and thankful to be able to do what I do,” he says.

He’s particularly gratified that his son is in law school and his daughter, an undergraduate, might choose law school too.

Meanwhile, the firm is moving to a new office in Boca Raton. “We’ve grown in the last two years,” he says.

Tags: Government/Politics & Law, Feature, Law

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