Nixing the $520,000 ‘Footlong’

The Wall Street Journal discusses the Subway ‘footlong’ settlement with Ted Frank.

The Seventh Circuit Court of Appeals has given the plaintiffs bar something to chew on. Writing for a three-member panel, Judge Diane Sykes on Friday threw out a class-action lawsuit settlement involving the Subway food chain’s “Footlong” sandwich on grounds that the only beneficiaries were the lawyers.

The case started in 2013 after an Australian teenager posted a photo on Facebook of a Subway Footlong sandwich next to a tape-measure showing it to be 11 inches. The post went viral—and so did the lawyers. Nine class-action suits were launched around the U.S., later consolidated into one.

Subway soon announced steps to ensure its baked rolls would be at least 12 inches. In 2016 a lower court approved a settlement under which Subway promised to maintain practices to ensure more uniformity in its bread. The suing attorneys were to collect $520,000 in fees.

Enter Theodore Frank, who directs the Center for Class Action Fairness at the Competitive Enterprise Institute. He objected to the settlement on grounds that while the lawyers were “handsomely compensated” the class received “negligible to no relief.”

During litigation it emerged that though the baked length of a roll may vary, the amount of dough is uniform. Judge Sykes also noted that “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,” owing to the inherent vagaries of food production. It’s safe to assume, wrote Judge Sykes, that Subway customers “know this as a matter of common sense.” These days we’ll take any victory for common sense.

Read the full article at The Wall Street Journal.