Subway Footlong Lawsuit | 2018 Settlement Update

malpractice law

Are they really going to settle these Subway foot long lawsuits?

Subway just got hit with a lawsuit alleging that its footlong subs are not actually a foot long. Plaintiffs who ate what is probably an 11-inch sub, are seeking money damages for their injuries. The case was filed in New Jersey.

I stick pretty close to personal injury related issues here. So why am I writing about a frivolous lawsuit claiming that a foot long sub is not a foot long? Because I think it is related. Lawsuits like this – and celebrities that sue for every possible slight – really sends a message to people, who later become jurors, that the judicial system is not often a place for serious justice.

So when an injured plaintiff begins a trial, she does not begin on the 50-yard line. She starts deep in her own territory. That’s not an impossible mission for a worthy plaintiff by any stretch – people flip quickly when they learn facts. But it makes the hill a tougher climb and it can change the way they value personal injury cases.

Subway says the word “footlong” should not be taken literally, as it is a trademark and “not intended to be a measurement of length.” But they are misleading people. They misled me. I thought it was a foot long till I read this story. But consumers who think like me have two reasonable choices: (1) decide not to buy the Subway subs because they are mad at the false advertising, or (2) remain annoyed but say, “Hey, Subway is not perfect, I don’t think many big companies are, but I think make a good sandwich and I’m going to eat it.” (I pick the latter. Subway makes a good low fat sandwich, albeit with a ridiculous amount of sodium.).

The road less traveled that these “plaintiffs” took is to file a lawsuit. (I need the quotes because plaintiff means something to me – these are guys who ate a good sandwich.) Plaintiffs’ lawyer argues that this is just. Subway should either make their sandwiches 12 inches long or stop advertising them as footlongs. He might be right. But what he needs to understand – and what many of these consumer class action lawsuit plaintiffs need to understand – is that there are many wrongs out there that do not need the justice system to be righted.

Most problems and injustices that most people face in our corner of the world cannot be solved by laws or lawsuits. Your boss fires you because he never gave you a chance. Your wife cheats on you. You lead a healthy life and your health has taken an awful turn anyway. As a society, we are pushing closer to making these kinds of things a part of our civil justice system. I don’t like it.

But I probably wouldn’t worry about it much but for the fact that it impacts my clients. Sit through voir dire once, particularly in a state that, unlike Maryland, has more comprehensive voir dire. Jurors are fed up with people using lawsuits to solve every grievance and they are skeptical of plaintiffs – even badly injured plaintiffs – because they remind them of guys who file lawsuits about the length of a sandwich.

P.S. It is stupid lawsuit day. Here’s a lawsuit against Lance Armstrong for people that bought his books.

Subway Footlong Lawsuits Update

In April 2014, the Wall Street Journal reported that Subway was “within inches” of reaching a settlement in this case.  One outstanding issue: attorneys’ fees.  Naturally. Are lawyers really going to make money off of this?  I want to light myself on fire.

2017 Update from Walter Olson at Overlawyered: this case is about to be dismissed.  Why?  Because the 7th Circuit found that the purpose of the litigation was to extract out attorneys’ fees.  This all took four years.  Unbelievable.  The consumer class action lawsuits are a mixed bag.  They help us keep manufacturers in check.  But these lawsuits that are just for lawyers do not help trust in our civil justice system.

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  • Tony

    What? No allowance for shrinkage?

  • “Subway makes a good low fat sandwich, albeit with a ridiculous amount of sodium.). ”
    On a dietary science note, fat is not the enemy (not meatfat, anyway); starchy carbs are. The sort of turkey and other lunchmeats Subway uses are not nutritious because they are devoid of fat. If you want to be healthy, eat a bacon cheeseburger without the bun. And read Gary Taubes, dietary researcher Dr. Jeff Volek, Dr. Michael Eades and Dr. Mary Dan Eades, and Dr. Peter Attia.

    Per the giant meta-analysis that is Gary Taubes’ “Good Calories, Bad Calories” and the more accessible (for non-science types) “Why We Get Fat,” it is carbohydrates — sugar, flour, starchy vegetables like potatoes, apple juice — that cause the insulin secretion that puts on fat.

    Additionally, read Taubes on salt in the NY Times and his older piece on science. Your notion that salt is bad for people who don’t have high blood pressure is not based in evidence.

  • Greg L.

    You ignore the fact that these companies intentionally mislead people into thinking their product is different than it really is. It is not about the 1 inch. It is about the fact that they are lying about 8% of their sandwich. You can mock 8% as nothing but do you realize how much an 8% decrease in cost of good sold means?

  • FRank N.

    While I agree that a foot long hoagie should indeed be a foot long or no longer promoted as such, I disagree with a comment from the article and from the comments:

    Being from the home of the hoagie sandwich a couple of miles from Hog Island, I assure you that Subway makes terrible hoagies compared to almost every deli in South Jersey or Philadelphia.

    As to the comment asserting 8% cost savings, as has been noted, certain of their “foot long” rolls are indeed 12 inches. These rolls all cost the same and the sandwiches made in them, 11″ and 12″, all use the same amount of weighed ingredients. There is no 8% cost savings by Subway.

  • Ron Miller

    First, and most importantly, I want to agree with Tony. Shrinkage is poorly understood. I’ve been a victim of shrinkage discrimination my whole life. There is a Seinfeld episode that must be watched to stop this injustice. You can learn more here:

    I think the 8% debate sort of misses the point anyway. The lack of “footlongedness” is in plain sight for anyone. If you object to the standard length of the sandwich, don’t eat it. If they misled us about the ingredients, that is a different subject all together because that would not be in plain sight. (Actually, their is a Seinfeld episode on point on this issue too. )

  • Phil

    I disagree with your “plain view” theory. I shouldn’t be expected to show up with a measuring tape when I buy a sandwich. Is it so much to ask that you give me what you tell me you are giving me?

  • Ron Miller

    Phil, I get your point. I just don’t agree with it. You don’t go to get a foot long sandwich. You go to get the sandwich they give you. There is a reason you don’t bring that tape measure with you. You don’t care.

    The larger point to me is that regardless of how you view merits of it, whether you file a lawsuit is a different issue all together.

  • These cases drive me nuts. Seriously? This is what we are sending to the judicial system. Spend your time doing something else and make an honest living NOT by suing businesses for one inch of a sub.

  • skh.pcola

    Mneh. There would be malcontents that would kvetch if the “footlong” sammitch was actually 13″. They’d probably claim that the “excess” length was causing their obesity, or some such inanity. One inevitability, besides death and taxes, is that some wretches are never happy and will jump through flaming hoops to prove it.

  • David Schwartz

    Phil: The reason showing up with a measuring tape is so ridiculous is because the length of a sandwich isn’t a measure of how much meat or bread is in the sandwich. It just measures how the bread was rolled and stretched and how it shrunk and grew during the proofing and baking process.

    Burgers, for example, are given as a pre-cooked weight because we all understand that weights vary in cooking. Similarly, we all understand that the length of a sandwich when we get it is a post-preparation length after many processes subject to natural variation that affect that final result.

  • I’m a little slow on the uptake, submitting this comment several weeks after you posted this item.

    Nevertheless, I am glad you posted it. I like staying on top of things like this from NJ because that is where I practice.

    I could critique the case, but I believe I would repeat what has already been written here.

    Suffice it to say, based on the information available, I do not understand why this lawsuit was filed. I am being diplomatic.

    Thank you, again, for posting this item.

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