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

AuthorCatherine Piché
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.
CCAR 13-2.indb 347 10/30/2018 11:42:06 AM
CCAR 13-2.indb 348 10/30/2018 11:42:06 AM
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:
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).
CCAR 13-2.indb 349 10/30/2018 11:42:06 AM

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