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Subway Gets Fake Tuna Lawsuit Thrown Out by Skeptical Judge

Oct. 7, 2021, 10:51 PM

Subway Restaurants Inc. on Thursday convinced a federal judge in California to throw out a lawsuit brought by consumers who say that the sandwich giant misrepresents the tuna it uses.

Subway was accused of lying about the contents of its tuna subs, namely that they “do not contain 100% skipjack and yellowtail tuna, and/or do not consist of 100% tuna with respect to the fish portion of the product Defendants represent as tuna,” according to the complaint.

Plaintiffs Karen Dhanowa and Nilima Amin sought to represent other consumers in their lawsuit alleging Subway made false and misleading representations about its tuna products to “capitalize on the premium price consumers are willing to pay” for the fish ingredient.

The amended complaint lists causes of action including common law fraud, intentional misrepresentation, negligent misrepresentation, and unjust enrichment.

Subway sought to toss the case on several grounds, including that the plaintiffs failed to allege the plaintiffs bought the sandwiches based on any alleged misrepresentations by the company.

Judge Jon S. Tigar of the of the U.S. District Court for the Northern District of California said via a Zoom hearing that he would grant that motion but allow the plaintiffs to resubmit their complaint.

Tigar said he read the complaint and “struggled” to find any reliance claims.

Patrick McNicholas of McNicholas & McNicholas LLP, counsel to plaintiffs, appeared to consent to the adverse ruling. He suggested they could amend the filing to bring it up to pleading standards.

The judge issued an order dismissing the case after the hearing.

Subway was represented by Baker & McKenzie LLP.

The case is Amin v. Subway Restaurants Inc., N.D. Cal., No. 4:21-cv-00498, 10/7/21

To contact the reporter on this story: David McAfee in Los Angeles at dmcAfee@bloomberglaw.com

To contact the editor responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com

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