By Michael King posted 11-27-2017 18:53



Photo courtesy of USA TODAY

Who started this food fight?

Most people just eat their Subway Footlong sandwiches. In January 2013, a teenager in Australia measured his Subway Footlong sandwich before eating it. It was only 11 inches long! In re: Subway Footlong Sandwich Marketing and Sales Practice Litigation, (7th Cir., 8/25/17).

Apparently ignoring the admonition of every parent to not play with your food, he photographed the sandwich next to a tape measure and posted the picture on his Facebook page. The image went viral and the condiment-laden class-action lawsuits came made-to-order.

There was no meat sandwiched between the legal briefs!

Nine class-action lawsuits were filed. “Within days . . . , the American class-action bar rushed to court.” Unlike Subway’s bread, the legal cases were half-baked. “In their haste to file suit, however, the lawyers neglected to consider whether the claims had any merit. They did not.” The court noted that “each sandwich contained the same amount of bread even if an occasional loaf failed to bake to the full 12 inches in length.”

And if a loaf happened to bake up slightly shorter than 12 inches, customers could be assured of receiving the same quantity of meat and cheese as any other customer; no class member, regardless of bread length, was cheated on the amount of ham or turkey, provolone or pepper jack. As for other sandwich ingredients, class members could be as profligate or as temperate as they pleased: Subway’s “sandwich artists” add toppings at the customer’s request.

Subway hangs up the apron and settles!

After taking enough discovery to show that the plaintiffs could not prove any damages, Subway wrapped up a settlement with the plaintiffs’ lawyers. Subway agreed to some fairly meaningless steps, many of which it would do anyway.

Subway stipulated that the sandwich shops would “use a tool” to measure sandwich rolls. Corporate quality-control inspectors would measure some baked bread during regular compliance inspections. The inspectors would make sure the ovens were in proper working order. “Subway’s website and each franchised restaurant would post a notice that the natural variability in the bread-baking process will sometimes result in sandwich rolls that are shorter than the advertised length.” The settlement even stated that “because of the inherent variability in food production and the bread baking process,” Subway couldn’t guarantee that all sandwich bread would be exactly 12 inches.

After agreeing on the rolls, the parties argued for over a year about lawyers’ fees for class counsel and incentive awards for the named plaintiffs. Ultimately, the trial judge issued the stipulated injunction requiring the agreed upon steps to ensure accurate 6-inch or Footlong sandwich lengths. The district court awarded $520,000 in legal fees to plaintiffs’ lawyers and $500 apiece to each of the 10 named plaintiffs.

The settlement was just empty carbs!

Theodore Frank objected to the settlement and appealed. The Court of Appeals ruled that “the class should not have been certified and the settlement should not have been approved.”

The Court added some pepper jack, jalapenos, and spicy mustard: “A class settlement that results in fees for class counsel but yields no meaningful relief for the class ‘is no better than a racket.’“ Moreover, “No class action settlement that yields zero benefits for the class should be approved, and a class action that seeks only worthless benefits for the class should be dismissed out of hand.”

No class members were getting any money except the token amounts awarded to the class representatives. Not even a 50¢ off coupon! The parties weren’t talking real bread. In addition, the appellate court said the injunctive relief “is utterly worthless.”

Contempt sanctions for not measuring bread correctly?

Theoretically, the plaintiffs could enforce the corrective measures agreed upon and included in the injunction through contempt sanctions, but the agreed upon actions to assure uniform bread lengths were meaningless because bread will naturally vary in uniformity when it is baked. The court sliced through the bologna: “Contempt as a remedy to enforce a worthless settlement is itself worthless. Zero plus zero equals zero.”

The tears are just from slicing onions.

Lawsuits that don’t do anything but enrich the lawyers are “no better than a racket.” If you feel inclined to shed tears for plaintiffs’ counsel, retreat to the kitchen and dice some onions.

Let me know if you have meaningful rights that need protection.

Michael R. King


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