Plaintiffs in class action lawsuit over Subway’s ‘footlong’ sandwiches abandon litigation

By: Jessica Karmasek

Plaintiffs in a class action lawsuit brought over Subway’s “footlong” sandwiches have decided to abandon efforts to pursue the litigation.

The plaintiffs filed a two-page stipulation of dismissal without prejudice in the U.S. District Court for the Eastern District of Wisconsin Oct. 24.

Their voluntary dismissal comes nearly two months after the U.S. Court of Appeals for the Seventh Circuit dismissed a proposed settlement agreement.

The Seventh Circuit, in its Aug. 25 decision, reversed the Eastern District of Wisconsin’s decision certifying a proposed class and approving a settlement in the case, calling it “utterly worthless.”

Days later, despite the Seventh Circuit ruling, the plaintiffs said they intended to pursue the litigation.

They did not provide a reason for their voluntary dismissal, filed by co-lead counsel Stephen P. DeNittis, of the firm of DeNittis Osefchen Prince P.C., of Marlton, N.J. and Thomas A. Zimmerman Jr., of the Zimmerman Law Offices of Chicago.

“The Subway sandwich litigation was a racket used by plaintiffs’ attorneys to extract fees for themselves, as the Seventh Circuit rightly recognized,” said Ted Frank, with the Competitive Enterprise Institute’s Center for Class Action Fairness and a frequent objector to such class action settlements.

Frank, a class member himself, objected to the settlement and class certification.

He argued the settlement — a proposed injunction — enriched only the lawyers and provided no meaningful benefits to the class.

“We hope the failure of this frivolous lawsuit and unfair settlement deal will discourage others from pursuing frivolous class actions,” Frank said in a statement.

The plaintiffs alleged footlong sandwiches sold at Subway restaurants were marketed as being 12 inches in length, when, in fact, they were not.

According to their complaint, Subway’s alleged business practices violated state consumer protection statutes.

The class action stemmed from a social media post in 2013, which pointed out how the chain’s footlong sandwich came up short.

Matt Corby, an Australian teenager, purchased a Subway footlong sandwich and decided to measure it. The sandwich was only 11 inches long. He took a photo of the sandwich next to a tape measure and posted the photo on his Facebook page.

Subway, in response, issued a press release announcing it had “redoubled” its efforts “to ensure consistency and correct length in every sandwich.” The franchisor assured its customers that its “commitment remains steadfast” to ensure that every footlong sandwich sold at each of its restaurants worldwide is at least 12 inches long.

“Within days of Corby’s post, the American class-action bar rushed to court,” Judge Diane S. Sykes wrote in the Seventh Circuit’s 11-page ruling.

Plaintiffs’ lawyers sued Doctor’s Associates Inc., the franchisor of Subway Sandwich Shops, seeking damages and injunctive relief under the consumer protection laws of various states.

Subway moved to transfer the cases to a single district court for a multidistrict litigation. The cases — nine in total — were eventually consolidated in the Eastern District of Wisconsin.