Judge in Subway Case Admonishes Embarrassed ‘Fake Tuna’ Lawyer

A plaintiff’s attorney, representing a Subway Restaurants Inc. customer that made allegations about the restaurant’s tuna, was admonished by a federal judge Thursday, although the judge stopped short of promising to award Subway sanctions.

Lawyers sparred over whether the plaintiff had a reasonable basis to claim Subway misrepresented its tuna, with lawyers for Subway asking Judge Jon S. Tigar of the US District Court for the Northern District of California to award sanctions in the amount of their reasonable attorneys’ fees.

Baker McKenzie attorney Mark Goodman, on behalf of Subway, said he’s never brought a motion for sanctions in more than 30 years of practice. But he said such a punishment is warranted in this case because the customers’ lawyers knew they didn’t have a basis for their claims and didn’t act appropriately during litigation.

Tigar hasn’t yet issued a ruling, but echoed Goodman’s frustration. “If [Subway doesn’t] win the motion, at least they know I get it.”

McNicholas & McNicholas LLP attorney Jeffrey Lamb, who represented the plaintiffs, said, “I’m embarrassed about some of the lawyering that occurred in this case. If I could go back and do things over, I would have changed that.”

In April, plaintiff Nilima Amin asked the US District Court for the Northern District of California to let her voluntarily drop her proposed class action suit against Subway due to her pregnancy-related health complications.

Amin said in filings she brought the suit in good faith and pursued it in good faith, but she needs to prioritize her health and family. Subway responded that the suit was frivolous and has contended that it led to bad publicity. The chain said the suit shouldn’t be let go without a refund for its expenses.

Subway asked for sanctions of $617,955 plus the costs incurred in association with this motion. The restaurant chain also requested the case be dismissed without the ability to bring it back to court.

Karen Dhanowa and Amin first sued in 2021, alleging Subway lied in its marketing about selling real tuna. The first two versions of the proposed class action were dismissed. The plaintiffs initially claimed Subway’s offerings contained no tuna at all.

They then amended the complaint, alleging Subway falsely markets the tuna as 100% sustainably caught skipjack and yellowfin. A judge dismissed the suit, saying it lacked reliance claims.

The third version survived, alleging that testing revealed chicken, cattle and pork DNA but no detectable tuna DNA in a substantial number of tuna products. The judge dismissed Dhanowa’s claims but let some of Amin’s claims survive.

Amin’s attorneys knew the DNA tests were unreliable, containing cooked tuna that was mixed with other sandwich ingredients, the chain said in filings. Subway said it also gave Amin’s attorneys detailed documentation of Subway’s tuna supply chain showing that “its tuna is tuna.”

McNicholas & McNicholas LLP, Kellner Law Group LLC, Lanier Law Firm PC, and Dogra Law Group PC represent the plaintiffs. Baker McKenzie represents Subway.

The case is Amin et al v. Subway Restaurants, Inc. et al, No. 4:21-cv-00498, Motion hearing 7/27/23.