Subway Footlong Litigation

September 15, 2017

What if your “footlong” sandwich wasn’t quite a foot long? Most people don’t take the time to measure their sandwich to determine if Subway is holding up their end of the bargain, but some Midwesterners did. The results? Their sandwiches were not one foot long. Surprisingly, the sandwiches were approximately 11 inches, resulting in a class-action lawsuit against Subway in the US District Court for the Eastern District of Wisconsin.

In pre-trial proceedings, the parties conducted limited discovery finding that all of Subway’s raw dough sticks weighed the same. This means that, if the loaf of bread that does not bake to a full 12 inches, it contains no less bread than one that is a foot long.  Furthermore, the amount of meat and cheese per sandwich is standardized by Subway, so aside from chosen toppings, any given customer gets roughly the same amount of food as any other customer. While a class action suit may have seemed futile at that point, class counsel continued to pursue the lawsuit, focusing their efforts on certifying an injunction class. Ultimately, the parties submitted to mediation and reached a proposed settlement, agreeing to cap attorneys’ fees at $525,000 and incentive awards at $1,000 for each named plaintiff. The judge, approving the settlement and certifying a class, accepted class counsel’s request for $520,000 in attorneys’ fees and approved a $500 incentive award for each class representative. Subway also agreed to adopt quality control measures, consistent with the “realities of baking bread,” to try to ensure that its 6- and 12-inch sandwiches were the correct length.

On appeal, the United States Court of Appeals for the Seventh Circuit reversed the district court’s decision. The panel found that, even after the parties reached a voluntary settlement, the same small chance existed that a footlong sub would not measure up to 12 inches. Bringing some sense to the situation, the panel stated that the injunctive relief approved by the district court was utterly worthless and only enriched the class counsel and class representatives. The panel concluded that when a settlement yields fees for class counsel and no meaningful benefits for the class members, the class should not have been certified and the settlement should not have been approved. Navigating the contours of class action litigation can prove difficult and costly even for seasoned businesses, including even crafting a settlement that a court will ultimately approve. The attorneys at Rock Fusco & Connelly, LLC, can assist you with any class action litigation to which you may be a party.

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