Plaintiffs Alleging Subway Misrepresents its Tuna Lighten Allegations in Amended Complaint

Following an agreement between the two parties, Karen Dhanowa and Nilima Amin, plaintiffs in a California Northern District lawsuit against Subway who previously claimed that the restaurant’s tuna is fake filed an amended complaint on Monday altering their allegations to claims that the tuna is not “100% tuna” from sustainable fisheries as Subway claimed.

In the initial complaint filed on January 21 against Subway Restaurants Inc., Franchise World Headquarters LLC, and Subway Franchise Advertising Trust Fund LTD, the plaintiffs claimed that Subway’s products represented as tuna are falsely advertised and labeled. The complaint said “in reality, the Products do not contain tuna nor have any ingredient that constitutes Tuna.” It alleged that Subway’s tuna is falsely advertised because consumers will pay more if they believe it is tuna.

The amended complaint contained the same parties and claims as the previous complaint, however, it amended allegations that Subway falsely labeled its products as tuna and eliminated allegations that the products did not contain any tuna. Instead, the plaintiffs claimed that the defendants falsely label their products as “‘100% tuna’ and additionally represent that the tuna in their products contains either skipjack and/or yellowfin tuna from sustainably farmed fisheries.” The plaintiffs also added that consumers in the putative class would assume that Subway followed through with claims that it only sells tuna from “healthy stocks, for example Albacore and Tongol.”

Both complaints argued that consumers frequently purchase a product based on the main ingredient or filling, and that in a tuna sandwich, wrap, or salad at Subway, this would be the tuna. Purportedly, consumers are willing to pay more for tuna because it is considered to be more nutritious and have high protein levels, but the product sold by Subway allegedly did not provide these benefits. 

A joint statement from the parties filed on May 25 noted that the defendants believe that the plaintiffs do not have standing, as there has not been any injury as a result of purchasing the products. Subway further claimed that the plaintiffs’ claims would not exceed the amount-in-controversy threshold for the district court to have jurisdiction, because there was no injury. According to the statement, the defendants claimed the plaintiffs allegations “are without basis in fact or law,” and said that their products “consist of 100% wild caught skipjack or yellowfin tuna and there is no rational basis for the plaintiffs or their counsel to claim otherwise.” 

The defendants reportedly sent information to the plaintiffs about their tuna, “with the expectation that the plaintiffs would withdraw their complaint,” but the plaintiffs did not. Subway’s statement stated “since the tuna products are not mislabeled, the plaintiffs purchased what they intended to purchase and they have not been damaged in any amount whatsoever.” Subway reportedly plans to file a motion to dismiss, and permitted the plaintiffs to file the present amended complaint. Subway contested the plaintiffs’ claims that the lawsuit should be a class action matter. 

The plaintiffs are represented by McNicholas & McNicholas LLP, The Lanier Law Firm PC, and Dogra Law Group PC. Subway is represented by Baker & McKenzie LLP