The Fourth Dimension to Class Actions: Access to a Meaningful Benefit

• Author: Catherine Piché
• Pages: 347-378

347

THE FOURTH DIMENSION TO

CLASS ACTIONS: ACCESS TO A

ME A NINGFUL BENEFIT

Catherine P iché

Abstract: Class actions are procedural devices th at are con-

troversial bec ause they purport to bind absent class mem bers

without their express consent or participation. They have a

DNA of their own, and are, in fact, extraordinar y procedural

vehicles that ser ve varying purpose s depending on their genre.

Some class actions are driven by f‌inancial incentives and

goals; others are motivated by “the desire to right perceived

wrongs”; and still others are seeking to do both. This paper

will argue that there is a new dimension to be embraced by

class actions — the dimension of benef‌it. It will apply in all

types of cl ass actions, whether large or small, involving sm all

claims distributions or large payouts, in all areas of the sub-

stantive law. The paper will discuss the power and legitim-

acy of class actions; rev iew the traditional class act ion effects;

and suggest that better anticipation of class action outcomes

is needed by way of reporting (thereby providing transpar-

ency of such outcomes), and applying a cost-benef‌it approach

to class actions.

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349

THE FOURTH DIMENSION TO CLASS

ACTIONS: ACCESS TO A MEANINGFUL

BENEFIT

Catherine P iché*

Five years ago, an Australian teenager measured his foot-long Subway

sandwich and discovered that it was only eleven inches long. Eager to

share the newfound inform ation on Facebook, his post, including a

photograph of the sandwich alongside a tape measurer, went viral. Class

action litigation ensued across the United States, alleging breaches of

state consumer-protection laws and seeking class certif‌ication under

Rule 23 of the Federal Rules of Civil Procedure.1 The class action lawsuits

were eventually combined in a multid istrict litigation in the Eastern D is-

trict of Wisconsin.2 Early discovery established that consumers were not

prejudiced in any way by Subway’s practices. Subway’s unbaked bread

sticks were found to be uniform, and baked rolls only rarely produced

sticks that were shorter than twelve inches. This evidence, along with

the fact that Subway sandw iches are made to order for each customer,

with standa rdized ingredients, and the fact that sandwich makers add

toppings in quantities requested individually and variably by customers

according to individual tastes, meant that no compensable injury could

be proven. The claims alleged simply did not have merit.

The parties ultim ately agreed to settle their dispute on the condition

that, for a period of four years, Subway must (1) inspect and measure

its baked rolls to ensure that its sandw iches are at least twelve inches in

length; and (2) pay plaintiffs’ counsel $525,000 in attorney fees. The US

* Associate P rofessor, Université de Montréal, Di rector, Class Actions Lab. I

wish to tha nk David Siffert at New York University ’s Center on Civil Justice

for his precious comme nts and edits on my article. Th is paper’s original ver-

sion was published i n Catherine PICHÉ (dir.), Class Action Effects/Les effets d e

l’action collective, Montréal, Éd. Yvon Blai s, 2018, 500 p.

1 See, for example, Maure en Morrison, “Footlong-Gate: Subway Ap ologizes for

Sandwiche s Not Measuring Up” AdAge (25 January 2013), online: adage.com/

article /news/subway-apologize s-footlongs-measur ing/239427/.

2 In re: Subway Footlong Sandwich Marketing and Sale s Practices Litigation, MDL

No 13-02439 (ED Wis).

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