Subway ‘Footlong’ Case Goes Before Federal Appeals Court

The Wall Street Journal reports on CEI's Center for Class Action Fairness's hearing in their objection to a Subway class-action settlement. 

The recent controversy over the size of Subway subs drew much attention to the issue of sandwich-consumer rights, culminating in a class-action settlement.

But more than a year and a half after plaintiffs’ lawyers and Subway owner Doctor’s Associates Inc. struck a deal to settle the litigation, the case of the “footlong” isn’t wrapped up.

On Thursday, a federal appeals court panel heard arguments on whether the settlement gave too much dough to the lawyers without benefiting Subway consumers.

Arguing before the Seventh U.S. Circuit Court of Appeals in Chicago is Competitive Enterprise Institute litigator Ted Frank, a longtime critic of the class-action system who advocates on behalf of unnamed class members in settlement agreements.

Mr. Frank says settlements, particularly in the consumer-fraud arena, too often enrich plaintiffs’ lawyers without benefiting the plaintiffs they represent. And he says the Subway settlement is a prime example.

In a brief to the appeals court, he argues that Subway “had already committed to fixing any problem with the lengths of its sandwiches in January 2013,” and he said there’s “no evidence that the litigation and settlement added anything to that.”

He also contends that Doctor’s Associates isn’t even guaranteeing that its subs would be 12 inches after baking. “Thus, the only beneficiaries of the case were class counsel and the class representatives,” wrote Mr. Frank, arguing that such an imbalance legally requires the deal to be struck down.

Lead counsel for the plaintiffs, Stephen DeNittis and Thomas Zimmerman Jr., defended the terms in court papers filed in January. They accused Mr. Frank of having a “biased ideology” that presumes class actions are “part of an evil scheme to damage our economy and stifle the progress of businesses as they strive to make all our lives better.”

Mr. Frank called the criticism an “extraordinary personal attack.”

Read the full article at The Wall Street Journal.