Subway Gets $5 Million ‘Fake Tuna’ Lawsuit Thrown Out of Court

Authored by and submitted by philamignon

Subway Restaurants Inc. scored a big win Thursday against two plaintiffs who sued claiming that the restaurant’s tuna sandwiches weren’t really tuna. The lawsuit alleged that although customers pay a premium for sandwiches containing tuna, Subway’s tuna subs “lack tuna and are completely bereft of tuna as an ingredient.” It sought $5 million in damages.

U.S. District Judge Jon S. Tigar, a Barack Obama appointee in the Northern District of California, granted Subway’s motion to dismiss the lawsuit, finding that plaintiffs had not adequately made out all the necessary components of a fraud claim.

Plaintiffs Karen Dhanowa and Nilima Amin attempted to plead on behalf of an entire class of consumers who were allegedly defrauded by Subway’s false and misleading representations about the contents of its tuna. According to Judge Tigar, however, the plaintiffs fell short in that they “still need to describe the specific statements they saw and relied upon, when they saw the statements, and where the statements appeared.”

In an eight-page order, Tigar explained that “this is not a situation where Subway possesses the missing information.” Rather, he wrote, “Plaintiffs are the only ones who can identify which statements they saw and relied upon and where they saw them.” In the lawsuit’s current form, he reasoned, “Subway cannot properly defend itself against a complaint that does not identify the misstatements it allegedly made.”

Significant portions of the judge’s order were spent walking the parties through the requisite legal standards for dismissal under Rule 16(b)(6) of the Federal Rules of Civil Procedure. But the judge also spent considerable time determining whether or not the court could take “judicial notice” of certain alleged facts. That means the court would simply accept them as true without litigating them in traditional fashion. Subway attempted to introduce a number of facts via this method — but the judge warned the food chain that “defendants cannot use a request for judicial notice as a backdoor avenue for introducing evidence” about themselves (quote cleaned up). Eventually, though, the court did take judicial notice of some matters, such as those involving labeling, packaging, advertising, the chain’s menu, and the Subway website, for instance — as those “materials existed in the public realm.” The court also took notice of a few items which contained “disputed facts” but did not go into much detail about the significance of those items given the overall ruling to jettison the case at this early stage.

In a final line before summarily tossing the case out of court, the judge said that the plaintiffs did a poor job of explaining precisely what Subway did wrong.

“Subway cannot properly defend itself against a complaint that does not identify the misstatements it allegedly made,” the judge said.

The dismissal, however, likely will not be the final word on the subject. Tigar’s order specifically gave plaintiffs “leave to amend” their complaint, opening the door for aggrieved consumers to plead more specific details about their allegedly tuna-less transactions.

Attorneys for the parties did not immediately respond to a request for comment.

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gordo65 on October 12nd, 2021 at 21:47 UTC »

There's a lot of partial truths in this comment section, so here's a rundown on the "no tuna in Subway sandwiches" claim:

The judge took the easy way out, and threw the suit out because it was vague, without testing the claim that there is no tuna in the sandwiches The amount requested is high because the plaintiffs intended this to be a class action lawsuit A New York Times reporter tried to test the claim by sending the meat from 5 sandwiches to a testing lab, which could not identify any tuna DNA However, reporters from USA Today found that the cooking process would likely break down the tuna DNA to the point that it would not be detectible using some DNA tests Inside Edition had the tuna tested by a lab that specializes in testing food, and that lab did find tuna DNA Subway was vague about what sort of tuna it uses before the controversy, but now advertises that they use 100% wild caught skipjack tuna

VampireLorne on October 12nd, 2021 at 20:46 UTC »

Am I misreading this, was the reason for dismissal basically the judge asked the plaintiffs to prove "When did Subway ever claim there was tuna in their tuna?"

RVelts on October 12nd, 2021 at 20:18 UTC »

If subway had developed a tuna substitute that was somehow cheaper to produce than actual tuna, tasted close enough that nobody noticed, and was potentially meat-free, they would be advertising the hell of out that and charging a premium for it. It would be an innovation, not a way to get around tuna prices.