George Leef’s latest Forbes column tackles the U.S. Court of Appeals’ take on a class-action lawsuit involving footlong Subway sandwiches.
Judge Diane Sykes wrote the court’s opinion in the case, In re Subway Footlong Sandwich Market and Sales Practices Litigation. For Americans who dislike the abuse of legal process, her opinion was a tasty as your favorite Subway sandwich.
Judge Sykes began by zinging the attorneys behind the case: “In their haste to file the suit, however, the lawyers neglected to consider whether the claims had any merit. They did not. Early discovery established that Subway’s unbaked bread sticks are uniform, and the baked rolls rarely fall short of 12 inches. The minor variations that do occur are wholly attributable to the natural variability in the baking process and cannot be prevented.”
And what about the measures Subway pledged to implement so as to minimize the chance that a customer would get a “footlong” measuring less than 12 inches? Judge Sykes explained how little they actually accomplished, writing, “After the settlement – despite the new measuring tools, protocols, and inspections – there’s still the same small chance that Subway will sell a class member a sandwich that is slightly shorter than advertised…. The injunctive relief approved by the district judge is utterly worthless. The settlement enriches only class counsel and, to a lesser degree, the class representatives.”
The court ordered that the settlement be reversed and the case remanded to the district court. Unless the judge is unable to comprehend the disgust of the Court of Appeals at this “utterly worthless” settlement, the case will be dismissed.
