Feeding Frenzy

People howling about Subway’s not-quite-a-footlong sandwiches are, um, inching toward their day in court—which likely has attorneys for both sides whipping out their measuring tapes.

Seven class-action lawsuits against Subway Sandwich Shops will be centralized in the Eastern District of Wisconsin, a procedural move that allows for more efficient disposition than if each suit proceeded separately. Because the class in each case includes "hundreds of thousands or millions of persons," as one of the plaintiffs claims, consolidation seemed necessary.

They all make the same claim, that Subway’s manufacturing process and franchisee training result in a sandwich "that is materially shorter than the foot that is advertised, in violation of state consumer protection laws."

To dramatically underscore the point, they refer to the classic image first posted by an Australian teenager to Subway’s Facebook page in January and then copied copiously: a footlong Subway, with a yellow measuring tape on top, that only reaches to 11 inches. "Subway pls respond" was the message on the image.

And the feeding frenzy began. A used-car dealer who figures he’s chomped down 50 meatball footlongs a year for the last 14 years told the New York Post, "Now I feel like an idiot. I can’t believe I fell for that trick." 

His lawyers did the math and came up with this eye-popping statistic. If 25 percent of Subway’s revenue comes from footlong subs, that’s $2.85 billion a year. Those one-inch pieces of dough consumers say they aren’t getting adds up to $142.5 million of "illicit earnings."

Subway itself, owned by Doctor’s Associates Inc. in Milford, Connecticut, dropped the ball of dough at first, saying Australia, like most countries, uses the metric system so the word "footlong" wasn’t meant to mean 12 inches. They also said inconsistencies in kneading, rising, shaping and proofing the dough could cause a shortfall on occasion. 

By January 25 they were contrite. "We regret any instance where we did not fully deliver on our promise to our customers," their statement said. For this story, their outside attorney, John Doroghazi of Wiggin & Dana in New Haven, Connecticut, emailed this response:  "Thank you for your inquiry, but our client’s policy is not to comment on ongoing litigation."

Plenty of people think such cases give class-action suits and plaintiffs’ attorneys a bad name. Ron Miller, a plaintiffs’ attorney himself with Miller & Zois in Maryland, is one. "Lawsuits like this, and celebrities that sue for every possible slight, really send a message to people, who later become jurors, that the judicial system is not often a place for serious justice. 

"So when an injured plaintiff begins a trial, she does not begin on the 50-yard line. She starts deep in her own territory," he writes on the Maryland Injury Lawyer Blog.

Forbes magazine called the suits "baloney" in a headline. "Like every other living breathing creature, the way raw ‘live’ bread dough grows and develops depends upon a plethora of conditions," writes contributor Nadia Arumugam. "So, I’m OK that Subway’s footlongs aren’t exactly 12 inches."

But Marc Levy, a partner at Faegre Baker Daniels in Denver, shoots back. "I don’t know if it’s silly or not. I do advertising law, and I’ve counseled clients on their advertising, and represent them in litigation involving it," he says. 

"If you tell consumers that your sandwich is a footlong sandwich, and if you’re giving them a sandwich that is not a footlong, it does not strike me as wacky to say, well, that’s false and deceptive."

He says consumer fraud actions are "more and more common" in the past five years or so, and cites the recent Skechers settlement as one reason why. In that case, the Federal Trade Commission blasted Skechers’ claims that all you had to do to get a tight behind was to wear its special shoes. Skechers agreed to pay $45 million in a settlement, "and consumers jumped on." 

Right now a case against POM Wonderful, the makers of pomegranate juice who have made multiple health claims about their product, is being eagerly watched. "There are a lot of actions among the plaintiff class-action bar," Levy says. "These are lawyers who do nothing but file these kind of putative class actions, in the hopes of monetary settlements and attorneys’ fees." 

The last line in one of the seven cases against Subway, Barry Gross vs. Doctor’s Associates, makes the point. "Please be advised that we claim a lien upon any recovery herein for one-third or such amount as a court awards," it says, and is signed by Daniel Edelman, of Edelman, Combs, Latturner & Goodwin in Chicago. Attorneys there did not respond to multiple requests for comment.

Arguments are yet to be made in the cases, and no court dates have been set, but one thing is certain in the meantime: Attorneys are measuring Subway sandwich after Subway sandwich in preparation for trial, to see how many hit the mark or fall short. 

"I would imagine there’s a serious effort at product sampling going on," Levy says with a laugh, "and there are some lawyers who know more about baking than they ever thought they would." 

Beth Ewen is managing editor of Franchise Times. Send interesting legal and public policy cases to [email protected].