In a series of recent lawsuits, plaintiffs have sued Subway Sandwich Shops, Inc., (“Subway”) under various consumer protection laws claiming that the world’s biggest fast-food chain has been serving customers “footlong” sandwiches that are not, in fact, 12 inches. What started with customers posting pictures of their sandwiches next to rulers on Facebook, has resulted in class actions against the sandwich giant. 
On January 22, 2013, plaintiff Nguyen Buren filed the first lawsuit in a federal court in Chicago, alleging a “pattern of fraudulent, deceptive, and otherwise improper advertising, sales and marketing practices.” Buren v. Doctor’s Assocs., Inc., No. 13-498 (U.S. Dist. Ct., N.D. Ill.). Mr. Buren made claims under the consumer protection laws of all 50 states, as well as a claim for unjust enrichment, and seeks over $5 million in damages. According to the Chicago Tribune, Buren’s lawyer, Tom Zimmerman, claimed in reference to the suit: “This is no different than if you bought a dozen eggs and they gave you 11 or you bought a dozen doughnuts and they gave you 11.” A short time later, New Jersey residents John Farley and Charles Pendrak also brought one of the first class actions in state court where they allege, “Despite the repeated use of uniform language by Subway stating that this sandwich is a ‘footlong,’ the product in question is not, in fact, a foot long. Rather this product consistently measures significantly less than 12 inches in length.” Pendrak et al v. Subway Sandwich Shops, Inc. et al, Case No. 3:13-cv-00918-FLW-DEA (U.S. Dist. Ct., D. N.J.) (removal from N.J. Super. Ct. filed February 13, 2013). Stephen DeNittis, the lawyer representing Farley and Pendrak said, “Subway is profiting hundred[s] of thousands and potentially millions of dollars at consumers’ expense through mass uniform widespread misrepresentation about the size of its ‘Footlong.’ It is important that large companies like Subway promote and advertise their products accurately and deliver what they promise to consumers.” See Stephen DeNittis’ Statement. Subway quickly responded to the allegations by issuing a company statement to the Chicago Tribune, saying it would work harder to achieve sandwich-length uniformity. “We have redoubled our efforts to ensure consistency and correct length in every sandwich we serve,” the statement said. “Our commitment remains steadfast to ensure that every Subway Footlong sandwich is 12 inches at each location worldwide.” See Chicago Tribune story.
This article was prepared by Brandon Crisp (bcrisp@fulbright.com and +1 512 536 2422) of Fulbright’s Litigation Practice.
