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Judge tosses Subway ‘fake’ tuna lawsuit

Accused of misleading consumers about the filling in its tuna sandwiches, Subway prevailed on its motion to dismiss as a judge found the case lacks the required specificity to proceed.

OAKLAND, Calif. (CN) — A federal judge tossed a lawsuit claiming Subway tricks customers into buying tuna sandwiches that contain no real tuna, finding two Bay Area women failed to meet a critical standard for describing Subway’s allegedly fraudulent conduct.

Karen Dhanowa and Nilima Amin grabbed national headlines early this year when they accused Subway of “duping” consumers into paying more for sandwiches advertised as tuna while being “completely bereft of tuna as an ingredient.”

“In truth, the products do not contain tuna as ingredient. On the contrary, the filling in the products has no scintilla of tuna at all. In fact, the products entirely lack any trace of tuna as a component, let alone the main or predominant ingredient,” the women claimed in their lawsuit filed in the Northern District of California. 

Neither Dhanowa and Amin nor their attorneys would comment at the time as to what what the “real" ingredient might be, but speculation abounded. A New York Times reporter actually purchased 60 inches of sandwich, removed the tuna and sent it off to a lab for analysis. The results were inconclusive, as the meat was too processed to identify.

Following a remote video hearing on Subway’s motion to dismiss, U.S. District Judge Jon Tigar ruled that Dhanowa and Amin had failed to satisfy a key element of the case. While the women claimed that they relied on misrepresentations they saw on Subway’s menus and website between Jan. 21, 2017, and the present, they failed to describe the specific statements they relied on before making their purchases.

“To meet the heightened pleading standard, plaintiffs still need to describe the specific statements they saw and relied upon, when they saw the statements, and where the statements appeared,” Tigar wrote.

Subway Restaurants Inc. did not respond to a request for comment, nor did its legal team. But in a court filing from July, the chain said Dhanowa and Amin could not support their “frivolous lawsuit,” and while they eventually abandoned their theory that the subs contained “no tuna at all,” they filed an amended complaint claiming the sandwiches “do not contain 100% sustainably caught skipjack and yellowfin tuna.”

Subway was miffed that the women and their lawyers didn’t drop the case and apologize.

“While Subway has offered the plaintiffs’ and their counsel a graceful exit from the morass they had created by simply dismissing their claims with prejudice and issuing a public apology, they have instead doubled down on their destructive  behavior with new, equally unsupportable claims that they refuse to withdraw,” Subway attorney Mark Goodman wrote, asking the court to sanction the plaintiffs and their attorneys for their “frankly, outrageous” conduct.

Tigar granted Dhanowa and Amin leave to amend, writing, “Subway cannot properly defend itself against a complaint that does not identify the misstatements it allegedly made.”

Their attorneys did not respond to request for comment late Thursday. 

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