Lawyers nab 99 percent of Subway ‘foot-long’ lawsuit settlement

Customers who claimed that Subway restaurants’ “Foot-long” sandwiches didn’t measure up came away nearly empty-handed in a court-approved settlement of their class-action lawsuit against the sandwich chain.

The federal judge who oversaw the case did not have a high opinion of the quality of the customers’ arguments that they were somehow harmed — and should collect damages — because the “foot-long” sandwiches they purchased came up short.

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“By the time the initial mediation session was over, the plaintiffs realized that their claims were quite weak,” Lynn Adelman, U.S. District Court judge in the Eastern District of Wisconsin, wrote in a decision and order last week.

Out of a settlement of $525,000, attorneys were awarded $520,000, or more than 99 percent, while each of the 10 customers who sued a Subway franchisor in the consolidated class-action lawsuit walked away with $500 each.

The case had its roots in a photo that an Australian teenager posted on Facebook in January 2013 of a Subway Footlong sandwich he purchased that was only 11 inches long. The image became a social media phenomenon, and prompted attorneys in several states to file lawsuits under state consumer-protection laws. The lawsuits were consolidated in Wisconsin.

Although the lawsuit didn’t bring riches to the complaining customers, the plaintiffs’ attorneys did secure an agreement from Subway’s franchisor to take steps to ensure that all bread sold at Subway restaurants is at least 12 inches long, and to post notices to customers indicating that, due to natural variability in the bread-baking process, the size and shape of bread may vary. So the judge ruled that the plaintiffs’ attorneys should be awarded legal fees, which ultimately took up nearly all of the settlement amount.

Although the basis of the lawsuit may sound trivial, the legal aspects were fully explored in the judge’s 29-page decision and order. Here’s an excerpt that explains why the judge felt the case was weak:

“First, the plaintiffs learned that (the Subway franchisor’s) own testing showed that the vast majority of bread sold in Subway restaurants was at least 12 inches long, and that most of the bread that happened to be shorter than 12 inches was less than 1/4-inch shorter.

“Second, the plaintiffs learned that all of the raw dough sticks used to bake Subway bread weigh exactly the same. The dough sticks arrive at the restaurants frozen, and are then thawed, stretched, allowed to rise and baked. Due to natural variability in this process, the final loaves may have slightly different shapes. Some loaves will be slightly shorter and wider than others. But because all loaves are baked from the same quantity of dough, each loaf contains the same quantity of ingredients. Thus, a customer who received a baked loaf that was shorter than 12 inches did not receive any less bread than he or she would have if the loaf had measured exactly 12 inches.

“Third, the plaintiffs learned that the amount of meat and cheese included with each sandwich is standardized. Thus, a sandwich that is slightly shorter than 12 inches contains the same amount of meat and cheese as it would have had it measured exactly 12 inches.

“It is theoretically possible that a sandwich made on a slightly shorter loaf would contain a slightly diminished quantity of toppings — a sandwich that was 1/4-inch shorter than advertised might be missing a few shreds of lettuce or a gram or two of mayonnaise. However, Subway sandwiches are made to order in front of the customer, and if the customer asks for more of any particular topping, the employee making the sandwich will add more of that topping to the sandwich. Thus, the plaintiffs learned that, as a practical matter, the length of the bread does not affect the quantity of food the customer receives.”

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