Give Them an Inch: Subway Class Action and Tort Reform

By Michael GrossmanSeptember 14, 2017Reading Time: 6 minutes

Though I strongly believe in the workings of the legal system, I won't try to deny that frivolous litigation exists; I just try to emphasize that the system handles it appropriately.

For instance, in 2013 a class action was filed against the Subway sandwich chain when the dimensions of their "foot long" subs were called into question (I hit the highlights below). If you consider that a ridiculous reason to stand before a court, you're not alone--tort reformers and pundits flood the airwaves and the Internet with similar opinions. Personally I don't think it's as crazy as it might seem at first glance, but that might just be a matter of opinion.

No matter one's feelings about the subject matter, though, the important thing to remember is that the aggrieved plaintiff class still had their chance to seek remedy. The right to a fair trial is one that every American enjoys even if he never has to use it. No one should be prevented from taking complaints before a court; instead, the public must trust that the system will separate the wheat of legitimate claims from the chaff of frivolous ones. Judges often shut the latter down quite handily and the plaintiffs--as well as their pushy attorneys--walk away with nothing but a lesson about taking up the court's time.

Class Actions Against Subway: The Facts

In 2013 an Australian teen posted a photo to Facebook in which his "footlong" Subway sandwich was placed next to a tape measure. The photo showed that the sandwich was actually 11 inches in length, rather than the promised 12 inches. This revelation struck a nerve with social media users, and the Internet community took to its figurative streets to roast the sandwich giant for its alleged dishonesty. Someone eventually decided that tweets and memes weren't enough remedy, though, and that's when things got real.

Shortly thereafter plaintiff Nguyen Buren filed a class action lawsuit in a Chicago federal court related to Subway's alleged footlong flimflam. The suit alleged "fraudulent, deceptive, and otherwise improper advertising, sales and marketing practices." Several more suits followed and all were eventually consolidated into a Milwaukee district court. The claims cited consumer protection laws as well as charges of unjust enrichment, a legal term that means exactly what it sounds like it would: Subway was accused of profiting by cheating its customers one inch at a time. With hundreds of millions of sandwiches sold, the chain would have saved huge sums by shortening every outgoing sandwich.

Buren's attorney stated the point of the suit like this:

"This is no different than if you bought a dozen eggs and they gave you 11 or you bought a dozen doughnuts and they gave you 11."

Much as I itch to debate the semantics of that, the attorneys didn't have to convince me. They had a measure of success getting the district judge on their side, but their victory was short-lived.

Neither Plaintiffs Nor The Appellate Court Bought It.

It was found during the trial's discovery phase that the quantity of dough for every sandwich was uniform prior to baking, but small variations in the process (ambient humidity and temperature, equipment condition) could make the equal amounts of dough bake into bread of slightly varied dimensions. This proved the claim's main complaint baseless, since Subway was determined not to be maliciously or intentionally cheating anyone.

The plaintiffs' attorneys forged ahead regardless, demanding that Subway make procedural changes to ensure more uniform sandwiches. That was the whole deal; all but a few class members would have received only the injunctive relief of more careful measurement by the sandwich maker. Their counsel additionally demanded $525,000 in fees as part of the settlement. The district judge bafflingly approved those terms in 2015, but a member of the plaintiff class, noting the significant imbalance of awards, did not.

Under the Federal Rules of Civil Procedure, class members can refuse and appeal settlement terms. The dissatisfied member's objection sent the case up to the Seventh Circuit Court of Appeals. After reviewing the arguments, Circuit Judge Diane Sykes wrote and delivered the opinion--polite but brutal, as the best ones always are--of the three-judge panel:

"In their haste to file the suit, the lawyers neglected to consider whether the claims had any merit. They did not. Early discovery established that Subway's unbaked bread sticks are uniform, and the baked rolls rarely fall short of 12 inches. The minor variations that do occur are wholly attributable to the natural variability in the baking process and cannot be prevented."

For good measure, the judge also took a swing at Subway's supposed punishment:

"After the settlement - despite the new measuring tools, protocols, and inspections - there's still the same small chance that Subway will sell a class member a sandwich that is slightly shorter than advertised...The injunctive relief approved by the district judge is utterly worthless. The settlement enriches only class counsel and, to a lesser degree, the class representatives."

Basically, the judges took a good long look at the district court's agreement to play Sandwich Cop (and to award half a million dollars solely to attorneys), rolled up their robe sleeves, and explained what a farce the whole thing was. The case then went back down the chute for another round at the district level, but given how it fared in appellate court its fate seems pretty clear.

The Seventh Circuit's Decision Was Right

I am aware that the justice system isn't perfect. Plaintiffs choose some interesting reasons to appear before the court, and some attorneys are glad to join the fray in exchange for a fee. Tort reformers would likely throw some salty talk in there about their opportunism and mercenary behavior, but they're just doing their jobs. They, like I, believed that if people wanted to try and sue Subway over a missing inch of sandwich, they were within their rights to do so.

Putting it another way: The case may seem stupid to some, but the fact that they weren't prohibited from at least trying is not. If it had been judged on its surface as not worth the court's time, its merits would have gone unnoticed. Look at it a little more closely:

  • It had grounds. The plaintiff class believed it had been hoodwinked for years by Subway, to the tune of 50 cents a footlong. Had it been true, Subway would have raked in a lot of undeserved money. The complaint deserved exploration.
  • It provided answers. The plaintiffs' concerns wouldn't have been addressed without the lawsuit. Subway quite naturally denied the accusations, but that was their only real option, so it couldn't be taken as gospel truth without investigation. Discovery provided answers about uniform dough portions and how variables in baking could create irregular bread. It showed that the issue wasn't imaginary, but it had an explanation that didn't involve any deceptive practices.
  • It didn't punish Subway for nothing. The class members didn't receive any financial relief, but that's because the law determined none was due. Though it may have cleared the initial gatekeeper in district court, the appellate judges caught it and the legal system did its job.
  • Perhaps most importantly, the plaintiffs' rights were respected. Both in their original complaint and in their subsequent refusal of the district court's injunctive relief, plaintiffs were served properly by the system. They didn't win, but that too was just a result of the machine working correctly.

Like most plaintiffs, the class members felt they had a legitimate grievance. Even though their case was deemed insufficient, nobody decided that before they took their shot in court. Lobbyists clamor for laws to lower damage caps and invalidate some causes of action. Behind a veneer of civic concern about "congested courts" and "taxpayer burdens," the real point of such reforms is to rob citizens of their constitutional right to seek redress against businesses. It may sometimes be hard to see the immediate reasoning behind a filed suit, but even so we can't pick and choose who can try in the first place. That'd involve poking holes in their inalienable rights.

There's an endless supply of chin-stroking punditry out there about the sorry state of injury lawsuits. They say things like:

"[They] find a petty complaint about some product, magnify it into a class-action suit, then settle with the company in a way that does virtually nothing for the supposed victims, but yields a nice haul of legal fees as the company pays them to go away."

That quote is a jab at attorneys more than the plaintiffs themselves, and some counsel firms (like the ones clamoring for a payday in the Subway case) may occasionally deserve a bit of a poke. However, by dismissing civil procedure at any level as an opportunistic cash grab, its author and every gasbag like him erode the public's confidence in the tried-and-true legal system--the only one we've got, as it happens. Tort reformers want the law to pre-screen claims and limit the kinds of relief plaintiffs can receive--ostensibly to "save the system," but it seems like it's doing fine. It doesn't need an overhaul or prohibitions about who "deserves" to sue. It just needs the people it protects to have faith that it works.