A judge last week granted final approval to a settlement of a class-action suit filed against Subway after an Australian teenager in 2013 posted an image of his sandwich on Facebook that was only 11 inches. The image garnered international media attention, with The New York Post writing that it found four out of seven Footlongs it purchased in New York “measured only 11 or 11.5 inches.”
A judge had given preliminary approval in October to a settlement between Subway’s parent company Doctor’s Associates and plaintiffs’ attorneys. Final approval was granted on Febuary 25, 2016.
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As part of the settlement, Subway agreed to institute practices for at least four years to ensure its bread is at least 12 inches long. The judge approved $520,000 in attorney fees and $500 for each of the 10 individuals who were representatives of the class, but no monetary claims were awarded to potential members of the class.
“It was difficult to prove monetary damages, because everybody ate the evidence,” said Thomas Zimmerman, who was co-lead attorney for the class. Zimmerman said the attorney fees are being split among 10 law firms.
Subway said in a statement that it was pleased the judge found no wrongdoing on its part.
“This allows us to move forward, without distractions, on our goal to provide great tasting sandwiches and salads, made exactly as each guest likes. We have already taken steps to ensure each guest receives the Footlong or six-inch sandwich they order,” the statement said.
Lynn Adelman, a judge for the U.S. District Court Eastern District of Wisconsin, wrote in the final approval that the plaintiffs’ attorneys realized their claims “were quite weak” after an initial mediation session. Instead of trying to get class certification for monetary damages, he said plaintiffs decided to focus on injunctive relief requiring Doctor’s Associates to ensure its sandwiches are at least 12 inches long.
Adelman wrote that the plaintiffs’ attorneys learned Subway makes its bread with “dough sticks” that weigh the same when they arrive at stores frozen. The dough is then thawed and stretched before baking, a process that can lead to variability in the size and shape of the resulting bread.
While the dough may have different shapes, it still has the same quantity of ingredients, Adelman wrote. The amount of meat and cheese is also standardized, but it’s possible that a shorter bread loaf might lead to a slightly less toppings. For instance, “a sandwich that was ¼-inch shorter than advertised might be missing a few shreds of lettuce or a gram or two of mayonnaise,” the judge wrote.
But Adelman also noted that sandwiches are made in front of the customer, who can ask for more toppings.
“Thus, the plaintiffs learned that, as a practical matter, the length of the bread does not affect the quantity of food the customer receives,” Adelman wrote.
Still, Subway agreed as part of the settlement to take steps to ensure its bread is at least 12 inches long, including requiring franchisees to “use a tool for measuring bread.”