Size Matters: Seventh Circuit Rejects Subway Footlong Settlement Because It Provided No Meaningful Benefit To Class Members

by:  Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Subway (pd)I am a regular Subway customer, so I read the Seventh Circuit's opinion, In re. Subway Footlong Sandwich Marketing and Sales Practices Litigation, with great interest. You probably remember the events that spawned this litigation. As the Seventh Circuit described it: "In January 2013 Matt Corby, an Australian teenager, purchased a Subway Footlong sandwich and, for reasons unknown, decided to measure it. The sandwich was only 11 inches long. He took a photo of the sandwich next to a tape measure and posted the photo on his Facebook page. Thus a minor social-media sensation was born." And, "[w]ithin days of Corby's post, the American class-action bar rushed to court," therefore, a class action lawsuit was also born. It ended a few years later with a settlement, which the Seventh Circuit just overturned.

To say that the Seventh Circuit was critical of the settlement would be an understatement. Its opinion is filled with subtle, and not so subtle, criticisms of the settlement and plaintiffs' counsel. For example, early in its opinion, the court observed: "In their haste to file suit [ ] the lawyers neglected to consider whether the claims had any merit. They did not." It did not get much better for plaintiffs from that point on.

The court noted that the parties engaged in limited, informal discovery early on in the case, with the intent of going to mediation. This discovery revealed that plaintiffs' claims were deficient. It showed that "the length of the [baked] bread has no effect on the quantity of food each customer receives." First, all of Subway's raw dough is exactly the same size. So, even the few rolls that bake to approximately a quarter-inch less than 12 inches because of natural, and unpreventable, "vagaries in the baking process" provide the same bread as those that bake to the full 12 inches. Second, Subway standardizes the amount of meat and cheese that its "sandwich artists" put on each sandwich, so whether the bread is 12 inches long or a quarter-inch short, the customer still gets the same amount of food. (In the interest of full disclosure, because I am a regular, I do occasionally get an extra slice of ham, salami, and pepperoni on my six-inch BMT at my local Subway.) "This early discovery, limited though it was, extinguished any hope of certifying a damages class."

"Rather than drop the suits as meritless," however, plaintiffs shifted the focus of the lawsuit from one seeking damages to one seeking injunctive relief. THey filed an amendec complaint and, after mediation, reached a settlement with Subway, under which Subway would, for four years, implement practices designed to ensure, the the extent possible, that its sandwich rolls measured at least 12 inches long. But, the settlement noted that "because of the inherent variability in food production and the bread baking process, Subway could not guarantee that each sandwich roll [would] always be exactly 12 inches or greater in length after baking." In other words, Subway would try to fix, but could not guarantee that it would fix, the problem that spawned the lawsuit. 

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Law And The Simpsons, Lesson One: Trampolines=Potential Lawsuits

by:  Peter J. Gallagher (@pjsgallagher) (LinkedIn)

I know trampolines are fun, but everyone should know, thanks to The Simpsons, that they are a recipe for (legal) disaster:

Apparently some people missed this episode, as a recent decision from the Appellate Division, Panico v. Winner, demonstrates. [Note: In the second week of my first-year torts class, our professor told us that we were having a pop quiz. Being first-year law students, we all panicked. But then he shut off the lights and played this clip and we discussed all of the potential legal issues. It was a relief that it was not a quiz, but unfortunately this was the high point of my first-year torts class.]

In Panico, plaintiff was injured while jumping on a trampoline at a graduation party. The party was held at one of his classmate's homes and was attended by approximately twenty teenage guests. His classmate's mother originally planned to attend the party and serve as chaperone, but later learned that she would not be able to attend because of a work obligation. She told her daughter that she would have to cancel the party unless her daughter could convince the daughter's grandparents to attend. The daughter was able to do so. Her grandparents attended the party and, as a reward, became defendants in a lawsuit. 

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Game Over! Video Game Legend’s Lawsuit Against Cartoon Network Dismissed

Donkey kong (pd)
When I was a kid, cartoons and video games were far simpler than they are now. We watched Tom and Jerry and played Donkey Kong. The cartoons my kids watch today are often bizarre and the video games they play are way too complicated. A recent lawsuit in federal court, Mitchell v. The Cartoon Network, brought the old and new together, however, as a man who once held world records in Pac Man and Donkey Kong sued because his likeness was allegedly misappropriated in one of those new cartoons my kids like, "The Regular Show." (Incidentally, before you think I am just turning into a curmudgeonly old man, check out "The Regular Show" some time. It is hardly "regular".)

Plaintiff in Mitchell was a "well-known figure in the video gaming community." In addition to holding world records in both Pac Man and Donkey Kong at various times, he also competed in international gaming competitions, and even had his own trading card. But, he is perhaps most famous for his role in a documentary called "The King of Kong: A Fistful of Quarters," which "chronicles another gamer's attempt to surpass Plaintiff's world record for the game Donkey Kong." The district court described plaintiff's appearance in that film as follows:

In the film, Plaintiff is portrayed as succesful but arrogant, beloved by fans, and at times, willing to do whatever it takes to maintain his world record. In particular, the film shows Plaintiff attempting to maintain his world record by questioning his opponent's equipment and the authenticity of his opponent's submission of a filmed high score.

Plaintiff claims that defendants misappropriated his image for use in several episodes of "The Regular Show," which the district court noted is a show that "revolves around the adventures of two anthropomorphic animals, a blue jay named Mordecai and a raccoon named Rigby." One episode in the series included a villain named Garrett Bobby Ferguson, who appeared as a "giant floating head from outer space, with long black hair and a black beard, but no body." In the episode, Mordecai and Rigby are trying to break Ferguson's world record in a game called Broken Bonez that they play at their local coffee shop. (Yes, kids, we used to have to leave the house to play our favorite video games.) After they break the world record, the disembodied Ferguson appears to brag that he still holds the "universe record." Mordecai and Rigby then challenge Ferguson to play for that record. They almost beat his record, but then "throw the match when [Ferguson] begs them to let him win, claiming that he [ ] devoted his entire life to the game, that he played so much his wife left him, and that the universe record is all he has." After Mordecai and Rigby lose, however, Ferguson reveals that he was lying about it all. Mordecai and Rigby then go back and beat Ferguson's "universe record," at which point, the "enraged [Ferguson] explodes into goo." (When asked at breakfast if they ever saw this episode, two of my kids said they had, and they loved it.)

 

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On Champerty, Barratry, And “Vexatious Litigants”

     by:  Peter J. Gallagher (@pjsgallagher)

One of my favorite causes of action is "champerty." I know what you are thinking — who has a favorite cause of action? Fair point. Nonetheless, champerty has always been (along with its cousins, barratry and maintenance) one of my favorites because it is a fun word to say and because it sounds so darn legal! You just sound more like a real lawyer when you say someone's conduct was "champertous." Don't believe me? Try it out.

For the uninitiated: "maintenance is helping another prosecute a suit; champerty is maintaining a suit in return for a financial interest in the outcome; and barratry is a continuing practice of maintenance or champerty." In re Primus, 436 U.S. 412, 425 (1978). Alas, although it is one of my favorites, I don't get to use champerty very often because it is not a recognized cause of action in New Jersey. Polo by Shipley v. Gotchel, 225 N.J. Super. 429, 434 (Ch. Div. 1987) ("This Court need not address the doctrines of champerty and maintenance, as they do not presently exist in New Jersey."). In fact, it has never been a recognized cause of action in the Garden State. Terney v. Wilson, 45 N.J.L. 282, 285 (Sup. Ct. 1883) ("Sometimes it has been held that the principle should not be applied to agreements of the character just mentioned because they are champertous, but as the English law against champerty is repudiated in New Jersey . . . .").

 

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“Does Your Dog Bite?” What, If Any, Duty Does A Dog Owner Owe To A Trespasser?

 by:  Peter J. Gallagher (@pjsgallagher)

I loved the Pink Panther movies, and one of the more memorable scenes in the series involved Inspector Clouseau trying to pet an innkeeper's dog (or, more accurately, a dog that he thought belonged to the innkeeper:

 

 

Other than the fact that both involve a dog bite, this clip does not have much to do with the recent Appellate Division opinion in Ahrens v. Rogowski, but it is a funny clip and worth sharing.

In Ahrens, the Appellate Division was presented with the less humorous case of a woman who was bitten by a dog when "trespassing" on the dog owner's property. I put "trespassing" in quotes because, when I think of trespassing, I think of someone sneaking onto property late at night with nefarious motives, and that is not what happened in Ahrens. Nonetheless, plaintiff was trespassing in the legal sense when she was bitten by the property owner's dog and the Appellate Division was faced with what duty, if any, the owner owed her as a result.

 

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