Size does matter after all, in sandwiches if not class action settlements.
After lengthy litigation over the measurement of Subway’s foot-long and six-inch sandwiches, a federal judge in Milwaukee has signed off on a preliminary resolution of several class action lawsuits over the issue.
The final approved class may be one of the largest in any kind of lawsuit – everyone who bought a Subway sandwich in the U.S. since 2003. No court records even try to put a number to that besides tens of millions; there are 27,000 Subway shops in the U.S.
But all that most of the class members will get from the deal is the assurance that Subway now pays more attention to the dimensions of its subs. Nine named plaintiffs, as representatives of the class, could get up to $1,000 each.
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Despite the enormity of the class, the final payout for attorney fees and costs, including the class representative payments, will not exceed $525,000, according to court records.
Thomas Zimmerman of Chicago, one of the lead plaintiff attorneys, noted that won’t cover all the time all the parties spent on the case, which included thousands of pages of information from both sides, as well as third parties.
After one Subway customer’s lament that his foot-long was not in fact 12 inches long took off on social media in 2012, several lawsuits followed in various state and federal courts.
They were all combined into one action that landed before U.S. District Judge Lynn Adelman in Milwaukee, who earlier this month signed an order preliminarily approving the settlement.
The defendant in the actions, Subway’s franchiser Doctor’s Associates Inc., issued a news release late Monday about the settlement. It notes that nothing in the settlement found Subway’s marketing was unlawful or improper.
Any class member who objects to the settlement can still write to Adelman by Dec. 16 or attend a final Settlement Fairness Hearing in Milwaukee on Jan. 15. There’s a special website established to answer questions for anyone hungry for more information about the deal, www.subsettlement.com.
When the first lawsuits were filed, some plaintiff customers were seeking up to $5 million, claiming fraud and deceptive trade practices.
Subway explained that its roll – for its long or short sandwiches – is made from the same weight of dough, but that inherent inconsistencies of kneading, rising, shaping and baking left some a little short.
It should be noted that the settlement only covers injunctive relief. “No one is releasing a claim for money damages,” Zimmer said, meaning Subway customers could still sue to recover damages, individually or as a class.
That doesn’t seem likely. As plaintiffs noted in an earlier pleading, proving that any class member suffered “out of pocket monetary loss because their particular sandwich was less than the promised 12 inches could have proven to be an obstacle.”
Zimmerman said he doesn’t pay attention to critics who called the suits frivolous.
“As a result of this litigation, Subway enacted some significant quality-control measures,” he said.
Bethany Appleby, attorney for Subway, said the company “wants its customers to be happy and enjoy their subs.”