Subway Responds to Class-Action Suit—Does Size Really Matter?

In a statement Friday, Subway apologized and expressed “regret” for “any instance where we did not fully deliver on our promise to our customers.”  Subway apologized that its “Footlong” sandwiches fell short of expectations.

An Australian teenager’s picture of a Subway “Footlong” sandwich shown next to a tape measure went viral and spurred a class-action lawsuit in the U.S.

The lawsuits, one filed in the U.S. District Court for the Northern District of Illinois, a second in New Jersey Superior Court in Burlington County, and the third in the Court of Common Pleas in Philadelphia, each claims the restaurant franchise sells sandwiches that are about an inch shy of a “foot.”

It was estimated that 25 percent of Subway’s revenues come from selling Footlong subs, which total $2.85 billion a year. If the subs come up anywhere from ½ to one inch of missing dough consumers are not getting, that amounts to $142.5 million of illicit earnings.

One plaintiff, Nguyen Buren, joined many angry customers and filed a lawsuit against Subway Sandwiches for short changing its customers over the length of their footlong subs. The Chicago Tribune reports that Nguyen, after buying a footlong sandwich from a Subway restaurant near his North Side home, measured his sandwich and alleges that the meal measured less than 11 inches. He is seeking $5 million from Subway, claiming the move aims to prove that Subway had a “pattern of fraudulent, deceptive and otherwise improper advertising, sales and marketing practices,” as reported by the Post.

He joins three other men in New Jersey who filed two similar lawsuits this week and another man is preparing to file suit in Pennsylvania state court in Philadelphia.

The lawsuits are seeking class-action status, suing for compensatory damages and injunctive relief for deceptive advertising against Subway sandwich shops and Subway’s parent company, Doctor’s Associates, Inc.

“We have redoubled our efforts to ensure consistency and correct length in every sandwich we serve,” Subway spokeswoman Alison Goldberg said in a statement. “Our commitment remains steadfast to ensure that every Subway Footlong sandwich is 12 inches at each location worldwide.”

Subway’s justification is that each footlong loaf of bread is formed from exactly the same weight of dough, but the inconsistencies of kneading, rising, shaping and proofing entail that on occasion, some loaves fail to “measure up.”

Baking is sort of a science. Yeast cells release carbon dioxide, which can get trapped and form tiny gas bubbles.  This is what causes the dough to rise and expand. It is not possible for it to rise to the exact size on every occasion, since no two loaves of yeast will react the same.  However, Subway will probably need to be more precise in baking their “Footlong” subs from now on if they continue to advertise “Footlong” sandwiches.

Subway Australia responded to the photo posted on Subway’s Facebook fanpage, saying that the Footlong was a registered trademark, which was “not intended to be a measurement of length.”

This is not the first time Subway had challenges over their “footlong” sandwiches. In 2011, Subway ordered Casey’s General Stores, a convenience chain, to stop using the “footlong” name to describe its 12-inch sandwiches and even threatened to sue, prompting Casey’s to counter that “footlong” is a generic term anyone should be allowed to use. Casey’s withdrew its petition before the matter went to court.

Do you think size really does matter?  Do you think Subway should be reprimanded for serving “Footlong” sandwiches that are just 11 inches?

Feel free to comment on this blog post.  Contact one of our Gacovino Lake attorneys at 1-800-246-HURT (4878).

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