1. Will
Subway
use
the
‘puffery
defense’
in
suits
over
foot-­‐longs?
March
6,
2013
By
Adam
J.
Glazer
Adam
J.
Glazer
is
a
partner
at
Schoenberg,
Finkel,
Newman
&
Rosenberg
LLC
and
an
adjunct
professor
at
Northwestern
University
School
of
Law.
A
general
service
firm,
Schoenberg,
Finkel
dates
back
about
60
years
in
Chicago.
Glazer
maintains
a
broad
commercial
litigation
practice
with
an
emphasis
on
preventing,
and
if
not,
then
litigating
business
disputes.
Coney
Island
denizens
have
bought
"foot-­‐long"
hot
dogs
for
generations,
usually
served
with
pickles
and
Nathan's
famous
french
fries.
"Foot-­‐longs"
are
equally
a
staple
at
state
fairs
nationwide.
Patrons
expect
their
dogs
are
a
foot
long
about
as
often
as
they
believe
the
men
on
stilts
teasing
their
children
while
dressed
as
Uncle
Sam
are
genuinely
9
feet
tall.
At
the
intersection
of
gastronomy
and
law,
the
foot-­‐long
dog
may
have
set
a
precedent
to
help
answer
the
perplexing
question
of
whether
the
"foot-­‐
long"
label
can
be
taken
literally,
at
least
as
to
items
served
on
a
roll.
A
handful
of
diners
at
Subway,
the
world's
largest
restaurant
chain,
feel
otherwise
and
are
claiming
fraud
after
determining
not
all
of
its
foot-­‐long
sandwiches
measure
up.
This
classic
tempest
in
a
teapot
first
started
boiling
in
Perth,
Australia,
where

2. a
disappointed
teenager
photographed
a
tape
measure
next
to
a
"foot-­‐
long,"
and
posted
its
shortcomings
on
Subway's
Facebook
page.
It
quickly
went
viral.
American
customers
soon
broke
out
their
own
rulers
to
determine
that,
indeed,
Subway
foot-­‐longs
suffered
some
inconsistencies.
One
week
after
the
Aussie
posting,
putative
class-­‐action
suits
were
filed
coast
to
coast.
In
the
same
January
week,
would-­‐be
class
plaintiffs
sued
Subway
in
New
Jersey,
Chicago
and
Sacramento,
Calif.
Nguyen
Buren,
the
named
Chicago
plaintiff,
seeks
to
become
the
class
representative
for
"millions
of
consumers
throughout
the
nation"
who
seek
redress
for
Subway's
"pervasive
pattern
of
fraudulent,
deceptive
and
otherwise
improper
advertising,
sales
and
marketing
practices
…
regarding
the
length
of
purported
'foot-­‐long'
submarine
sandwiches."
Invoking
the
consumer
fraud
statutes
of
all
50
states,
Buren
alleges
Subway
"intended
to
trick
unsuspecting
customers,
including
the
plaintiff
and
other
members
of
the
proposed
class,
into
believing
that
they
are
receiving
more
food
for
their
money
than
they
actually
are."
Buren's
complaint
seeks
damages
in
excess
of
$5
million
as
well
as
injunctive
relief
against
Subway's
"foot-­‐long"
advertising
and
marketing,
disgorgement
of
the
alleged
ill-­‐gotten
gains,
restitution,
actual
damages,
treble
damages
and
punitive
damages.
According
to
the
Chicago
Sun-­‐Times,
Buren's
attorney,
Thomas
A.
Zimmerman
Jr.
of
Zimmerman
Law
Offices
P.C.,
wants
unhappy
Subway
customers
to
join
the
suit
to
receive
a
refund
of
the
portion
of
their
sandwiches
that
they
paid
for
but
did
not
receive.
Many
will
view
these
cases
as
nuisances,
in
league
with
the
McDonald's
overly
hot
coffee
cases
or,
perhaps,
the
suits
now
arising
from
the
Triumph's
incapacitation
at
sea
that
seek
millions
more
in
damages
than
the
compensation
offered
by
Carnival
Cruise
Lines.
Zimmerman
argues
otherwise.

3. "It's
no
different
than
buying
a
dozen
eggs
and
getting
11,"
he
told
the
Chicago
Tribune.
"Here,
you
bought
a
dozen
inches
of
sandwich
and
you
got
less
than
11."
Sure,
Subway
customers
generally
watch
the
making
of
their
sandwiches,
and
could
complain
or
refuse
to
consummate
their
purchases
if
they
were
dissatisfied
with
the
product.
But
how
many
really
understand
that
they
may
be
paying
for
12
inches
and
receiving
something
less?
The
closer
McDonald's
parallel
is
the
litigation
that
produced
the
"weight
before
cooking"
disclaimer
now
attached
to
quarter-­‐pounders.
Subway's
legal
defense
was
possibly
previewed
when
its
Australian
division
initially
responded
to
the
publicity
by
claiming
"footlong"
was
only
a
descriptive
name
and
"not
intended
to
be
a
measurement
of
length."
As
the
story
spread
around
the
globe,
however,
the
chain
issued
a
new
statement
pledging
to
"redouble"
its
efforts
"to
ensure
consistency
and
correct
length
in
every
sandwich
we
serve.
Our
commitment
remains
steadfast
to
ensure
that
every
Subway
foot-­‐long
is
12
inches
at
each
location
worldwide."
No
mention
was
made
of
adding
disclaimers.
A
reversion
by
Subway
to
its
Australian
subsidiary's
original
position
that
the
name
"foot-­‐long"
harkens
to
those
Coney
Island
hot
dogs
of
yore,
and
is
merely
descriptive,
will
invoke
the
contracts
class
in
law
school
that
covered
"puffery."
"Puffing
in
the
usual
sense
signifies
meaningless
superlatives
that
no
reasonable
person
would
take
seriously
and
so
it
is
not
actionable
as
fraud."
Speakers
of
Sport,
Inc.
v.
ProServ,
Inc.,
178
F.3d
862,
866
(7th
Cir.
1999).
Lawyers
don't
hear
much
of
the
puffery
defense
after
law
school
because
it
so
rarely
applies.
Yet,
Subway
may
be
tempted
to
rely
on
such
a
defense,
for
the
law
in
Illinois
provides
that
mere
puffery
cannot
support
a
consumer
fraud
claim.
Avery
v.
State
Farm
Mutual
Auto
Ins.
Co.,
216
Ill.2d
100,
173

4. (2005).
A
closer
look,
however,
reveals
that
labeling
a
sandwich
"foot-­‐long"
may
not
be
puffing.
In
Avery,
the
plaintiff
claimed
the
phrases
"quality
replacement
parts"
and
"very
high
performance
criteria"
were
deceptive
under
the
consumer
fraud
act.
Disagreeing,
the
court
viewed
these
terms
as
mere
puffery,
which
it
described
as
"the
exaggerations
reasonably
to
be
expected
of
a
seller
as
to
the
degree
of
quality
of
his
or
her
product,
the
truth
or
falsity
of
which
cannot
be
precisely
determined."
216
Ill.
2d
at
173-­‐74.
"Quality"
and
"high
performance"
are
classically
vague
terms
long
favored
by
marketers.
Not
so
with
measurements.
Buren
does
not
appear
to
make
any
like
challenge,
such
as
to
Subway's
"quality"
ingredients
or
the
"very
high
criteria"
set
for
them.
Instead,
the
truth
or
falsity
of
footlong
sandwiches
is
apparently
determinable
by
any
customer
with
a
ruler.
Truth
in
advertising
concepts
may
just
carry
the
day
here,
or
at
least
get
Buren
and
his
putative
class
beyond
a
motion
to
dismiss
the
consumer
fraud
act
claim.
Of
course,
even
if
a
claim
may
be
brought,
the
efficacy
of
suing
over
a
sandwich's
lost
inch
is
an
entirely
distinct
consideration.
As
Judge
Richard
A.
Posner
has
noted,
"A
great
many
promises
belong
to
the
realm
of
puffery,
bragging,
'mere
words'
and
casual
bonhomie,
rather
than
to
that
of
serious
commitment.
They
are
not
intended
to
and
ordinarily
do
not
induce
reliance;
a
healthy
skepticism
is
a
better
protection
against
being
fooled
by
them
than
the
costly
remedies
of
the
law."
Desnick
v.
ABC,
Inc.,
44
F.3d
1345,
1354
(7th
Cit.
1995).
Stated
differently,
state
fair
or
Subway
patrons
should
view
their
foot-­‐longs
about
as
reverently
as
their
men
on
stilts.
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