Short-Subway-Sandwich Settlement Stupid, Says Seventh Circuit
What's so appealing about alliteration? I really have no idea, and yet I just spent maybe 10 minutes trying to come up with a headline using it. Who cares? And now it's bothering me that "circuit" doesn't start with an S, even though the C has the same sibilant sound. Argh! I just did it again! Make it stop!
The court didn't even use the word "stupid" to describe the settlement, although it certainly could have. Neither did I when I informed you, also with a lot of alliteration, that the settlement had been reached. See "PLEASE TAKE NOTICE of the Short-Subway-Sandwich Settlement" (Nov. 2, 2015). I personally felt I was being quite even-handed when discussing the matter. I didn't use, for example, the phrases "utterly worthless" or "no better than a racket." But I certainly could have. Because the Seventh Circuit actually did.
As a reminder, this is the matter in which no fewer than nine separate class-action lawsuits were filed after it was revealed that in some instances, a Subway customer had received a "footlong" sandwich that was, in fact, slightly shorter than one foot. A settlement was reached, and a judge approved it. On Friday, the Seventh Circuit un-approved it, in an opinion that began like this:
In January 2013 an Australian teenager measured his Subway Footlong sandwich and discovered that it was only 11 inches long. He photographed the sandwich alongside a tape measure and posted the photo on his Facebook page. It went viral. Class-action litigation soon followed. Plaintiffs' lawyers across the United States sued Subway for damages and injunctive relief under state consumer-protection laws, seeking class certification".
In their haste to file suit, however, the lawyers neglected to consider whether the claims had any merit. They did not.
Oh dear.
This is a short but devastating opinion in which the court agreed with professional class-action-settlement objector Ted Frank that the only people who benefited from this settlement were the plaintiffs' lawyers. They argued that the settlement actually provided meaningful benefits to class members-who got no money, not even a discount coupon-because Subway was bound, "for a period of four years, to a set of procedures designed to achieve better bread-length uniformity." As that suggests, the court was entirely unimpressed.
Before the settlement, it pointed out, in most cases consumers would get a sandwich bread loaf that was at least 12 inches long and, more importantly, would contain basically the same amount of food as any other. There was only a small chance that any sandwich loaf would be length-deprived. After the settlement, the court pointed out, "there's still the same small chance," because as the settlement acknowledged, it's impossible to bake something to a particular length with scientific precision. "The injunctive relief approved by the district judge," therefore, "is utterly worthless."
The plaintiffs' lawyers therefore did not deserve $525,000 for having "achieved" it, the court concluded, holding that the cases should have been dismissed instead. It quoted equally blunt language from one of its decisions last year:
A class action that "seeks only worthless benefits for the class" and "yields [only] fees for class counsel" is "no better than a racket" and "should be dismissed out of hand." That's an apt description of this case.
In the scheme of things, half a million bucks split between nine sets of plaintiffs' lawyers for at least three years of work would not have been much of a payday, frankly. And yet it would have been half a million bucks too many.
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