It may be a first when class-action consumer litigation requires a Seventh Circuit panel to describe the step-by-step process of creating a Subway sandwich in a published opinion.
But that’s indeed what the court did in its recent ruling dismissing a class-action suit against the Subway fast-food chain; ham, provolone, pepper jack and all.
It all started in 2013 when an Australian teenager posted a photograph of his Subway “Footlong” sandwich next to a tape measure on his Facebook page. The sandwich measured only 11 inches. The post went viral and Subway customers in the U.S. began measuring their own sandwiches, and it was only a matter of time before the plaintiffs’ bar got in on the action.
Plaintiffs’ lawyers sued Subway, seeking damages and injunctive relief under state consumer-protection laws. The different cases were consolidated in the Eastern District of Wisconsin.
Subway’s defense was that because of deviations in the baking process, some rolls would inevitably shrink to under 12 inches, but all customers still received the same quantity of ingredients and most customers still got to enjoy a foot-long sandwich. Continue reading