In re Subway Footlong Sandwich Marketing and Sales Practices Litigation

Plaintiffs allege that the Defendant, Doctor's Associates (d/b/a Subway) marketed their signature sandwiches as being "footlongs" and a reasonable consumer could expect to receive a sandwich that was one foot in length.  However, numerous sandwiches purchased nationwide were found to be materially shorter (generally only 11 inches long).  These sandwiches are made from dough that is manufactured, portioned, and frozen for distribution by centralized production facilities under control of the Defendants.  Plaintiffs seek compensation for consumers who did not receive the full product they believed they would receive. 

1. Final Approval granted.
2. The Court disagreed with all of Objector Frank's contentions.
   • The total fund (the size of which was not contested by Objector Frank) is too small to provide any meaningful compensation to class members.
     • The Court contemplated that the likely recovery would be approximately 30 cents per claimant. (see Decision and Order, page 14-16)
   • Fees are proper, given their reasonableness and the weakness of the claims.
   • Class members do not give up their rights to receive monetary compensation and the injunctive relief provides the best possible settlement for class members.
3. Objector Frank appealed the Final Approval to the Seventh Circuit.
4. Oral arguments were held September 8, 2016.
5. On August 25, 2017 the court found in appellant's favor. The case has been reversed and remanded.

1. Injunctive relief provides no benefit to the class.
   • Subway had already put in place procedures to correct for the wrong-doing prior to the commencement of the MDL.
   • Injunctive relief benefits potential future customers, not people who have already purchased sandwiches (i.e. class members).
2. Settlement favors attorneys and class representatives over class members.
3. Attorneys' fees are excessive and rely on improper calculations of the value of the settlement.
   • Fee request shows signs of self-dealing and clear-sailing, plus a kicker clause.
   • Distribution mechanisms for fees are improper.