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It all started in 2013, Matt Corby, an Australian teenager, measured his subway Footlong sandwich.  It measured 11 inches.   He then posted the photographed picture of his sandwich along with a tape measure on Facebook.  From this start and with much notoriety class action attorneys sued Subway claiming misrepresentation under state consumer protection laws.  In 2016, a settlement was agreed to and preliminarily approved by a US District Court.

Prior to the settlement, an informal limited discovery in anticipation of mediation was conducted.  The discovery revealed that the claims were factually deficient. While some of the sandwiches were less than 12 inches, the vast majority were longer than 12 inches.  All of the sandwiches had the same amount of product, so no customer received less product.  According to the discovery it found that:

The few that do not measure up generally fall short by only about a quarter-inch, and the shortfalls are the inevitable consequence of natural—and unpreventable—vagaries in the baking process.”

Theodore Frank objected to the proposed settlement and class action certification.  He argued that the proposed settlement did not benefit the class in any meaningful way.  The US District Judge dismissed his objections and approved the settlement.  Frank appealed the settlement.

The US 7th Circuit of Appeals threw out a class-action settlement intended to resolve claims that the Subway Sandwich Shops mislead customers by selling ‘Footlong’ subs that were less than a foot. According to the US 7th Circuit Court of Appeals:

“A class action that ‘seeks only worthless benefits for the class’ and ‘yields [only] fees for class counsel’ is ‘no better than a racket’ and ‘should be dismissed out of hand.  That is an apt description of this case….Contempt as a remedy to enforce a worthless settlement is itself worthless. Zero plus zero equals zero.”

The 7th U.S. Circuit Court of Appeals in Chicago called the settlement “utterly worthless,” and said the customers’ lawyers were not entitled to attorney’s fees for convincing Subway it was better to make the case go away than fight.

In an upside down settlement the 10 plaintiffs who brought the case would get a split of $5,000 while the New Jersey law firm of DeNittis Osefchen Prince PC were to receive $520,000 in attorneys fees. Now the law firm must decide whether to appeal the decision or try to get more dough out of Subway for the class with an amended settlement.

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