A pair of New Jersey residents and their lawyer have filed what they hope will be a class action lawsuit against fast-food chain Subway.  The allegation is simple—the $5 dollar foot-long subway sandwiches are actually missing a half-inch or more.  Essentially, Subway is cheating many of us out of a half-inch of sandwich.

Our gut reaction was probably the same as yours—this is a frivolous lawsuit.  It’s not a term we enjoy—quite frankly, we find that most lawsuits (filed by lawyers—we can’t vouch for most of the pro se, or plaintiff-filed lawsuits) are meritorious and have some promise.  Lawyers can’t afford to bring frivolous lawsuits simply because the risks of losing are high, and wasting money is a bad way to stay in business.

And class action lawsuits really get people upset—the general stereotype is a lawsuit where a big-pocket defendant is sued by dozens of class action lawyers.  The defendants pay big.  The lawyers all get a ton of money.  The plaintiffs end up with a nice little coupon.  We’d be lying if we said that didn’t happen.  It does, from time to time.

A Half-Inch of Bread?

Most people wouldn’t bat an eye at a half-inch of bread lost.  It’s just a little bread.  No big deal.  The plaintiff’s lawyer in the case points out that there are over 38,000 Subway shops in the United States.  The “Five Dollar Footlong” deal has been a five-year-long ad campaign, and if every shop cuts a tiny bit from their sandwiches, the collective fraud is significant.

Even more interesting is the question of whether this is a matter of bread shortcomings, or whether that loss of a half-inch (an inch or more, for some sandwiches) is actually a cover-up for less meat and other toppings.  Does Subway use the same number of cheese slices and the same weight of meat on all sandwiches, regardless of bread length?  If so, it might just be about bread.  If not—well, then the cost savings to Subway are even more significant.

Certainly, there will much information to come out in discovery, if the cases get class-action status, and if they continue forward.

Is This Case An Embarrassment To The Legal Profession?

So is this a meritorious case or not?  Many people will look at this as the next McDonald’s Hot Coffee case (which, as we have indicated, was a meritorious case, despite the negative publicity surrounding it).

It’s hard to judge at this point—most people will probably look at it and roll their eyes, but the reality is that the plaintiffs could be onto something.  We doubt that every single sandwich must be exactly twelve inches (certainly, there is going to be some discrepancy based on the uncertainties of bread baking), but if the sandwiches are deliberately shortened, there could be real fraud here.  Soon we’ll see the Subway employees coming forward to tell of their companies practices.  Minimum wage is not a good way to inspire loyalty.