Case 4:21-cv-00498-JST Document 57 Filed 12/08/21 Page 1 of 24
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`KAREN DHANOWA and NILIMA AMIN, on
`behalf of themselves and all others,
`Plaintiffs,
`
`vs.
`SUBWAY RESTAURANTS, INC., a Delaware
`Corporation; FRANCHISE WORLD
`HEADQUARTERS, LLC., a Connecticut Limited
`Liability Corporation; SUBWAY FRANCHISEE
`ADVERTISING TRUST FUND LTD., a
`Connecticut Corporation; and DOES 1 through 50,
`Inclusive,
`
`Defendants.
`
`Mark C. Goodman (State Bar No. 154692)
` mark.goodman@bakermckenzie.com
`BAKER & McKENZIE LLP
`Two Embarcadero Center, 11th Floor
`San Francisco, CA 94111
`Telephone: +1 415 576 3000
`Facsimile: +1 415 576 3099
`
`Alexander G. Davis (State Bar No. 287840)
` alexander.davis@bakermckenzie.com
`Anne Kelts Assayag (State Bar No. 298710)
` anne.assayag@bakermckenzie.com
`BAKER & McKENZIE LLP
`600 Hansen Way
`Palo Alto, CA 94304-1044
`Telephone: +1 650 856 2400
`Facsimile: +1 650 856 9299
`
`Attorneys for Defendants
`SUBWAY RESTAURANTS, INC.,
`FRANCHISE WORLD HEADQUARTERS, LLC and
`SUBWAY FRANCHISEE ADVERTISING TRUST FUND LTD.
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`
`
` Case No. 4:21-cv-00498-JST
`
`MOTION TO DISMISS SECOND
`AMENDED COMPLAINT
`
`Date: February 3, 2022
`Time: 2:00 p.m.
`Ctrm: Courtroom 6 – 2nd Floor
`Judge: Hon. Jon S. Tigar
`Oakland Courthouse
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`Complaint Filed: January 21, 2021
`Amended Complaint Filed: June 8, 2021
`Second Amended Complaint Filed:
`November 8, 2021
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`Case 4:21-cv-00498-JST Document 57 Filed 12/08/21 Page 2 of 24
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`TABLE OF CONTENTS
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`III.
`IV.
`
`Page
`
`STATEMENT OF ISSUES TO BE DECIDED ................................................................................... 1
`I.
`INTRODUCTION .................................................................................................................... 2
`II.
`RELEVANT FACTUAL BACKGROUND ............................................................................. 5
`A.
`Plaintiffs’ Unexplained And Speculative Fraud Allegations ........................................ 5
`B.
`Subway’s Actual Menus, Labeling And Advertising Practices .................................... 6
`C.
`Plaintiffs’ Alleged Testing Fails To Show No Tuna In The Products .......................... 6
`D.
`Plaintiffs Do Not Allege Facts Showing Why Subway’s Statements Are False .......... 8
`PROCEDURAL HISTORY...................................................................................................... 9
`DISCUSSION ......................................................................................................................... 10
`A.
`The Applicable Pleading Standards ............................................................................ 10
`B.
`Plaintiffs Cannot Meet The Federal Pleading Standard .............................................. 11
`Plaintiffs Offer no Facts to Support their Misrepresentation
`1.
`Allegations ...................................................................................................... 11
`a.
`Plaintiffs’ Alleged Testing does not Establish a False Statement....... 14
`Plaintiffs’ Allegations are Completely Speculative ........................................ 16
`2.
`Plaintiffs Still do not Allege Reasonable Reliance ......................................... 17
`3.
`The SAC Should Be Dismissed With Prejudice ......................................................... 19
`C.
`CONCLUSION ....................................................................................................................... 19
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`V.
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`Case 4:21-cv-00498-JST Document 57 Filed 12/08/21 Page 3 of 24
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`
`
`Cases
`
`TABLE OF AUTHORITIES
`
` Page(s)
`
`Ashcroft v. Iqbal,
`556 U.S. 662 (2009) .....................................................................................................................16
`
`Astiana v. Ben & Jerry’s Homemade, Inc.,
`No. C 10-4387 PJH, 2011 WL 2111796 (N.D. Cal. May 26, 2011) ...........................................10
`
`Brazil v. Dole Food Co.,
`935 F.Supp.2d 947 (N.D. Cal. 2013) .....................................................................................11, 12
`
`Cafasso v. Gen. Dynamics C4 Sys.,
`637 F.3d 1047 (9th Cir. 2011) .....................................................................................................14
`
`Chevron Prods. Co. v. Advanced Corrosion Techs. & Training, LLC,
`No. 20-cv-09095-CRB, 2021 WL 2156467 (N.D. Cal. May 27, 2021) ......................................12
`
`Colgate v. JUUL Labs, Inc.,
`345 F.Supp.3d 1178 (N.D. Cal. 2018) .............................................................................13, 17, 18
`
`Cooper v. Curallux LLC,
`No. 20-cv-02455-PJH, 2020 WL 4732193 (N.D. Cal. Aug. 14, 2020) .......................................13
`
`Cox v. Richland Holdings, Inc.,
`No. 2:16-cv-02914-APG-VCF, 2018 WL 2014061 (D. Nev. Apr. 30, 2018) .............................19
`
`In re Ferrero Litig.,
`794 F.Supp.2d 1107 (S.D. Cal. 2011) ....................................................................................10, 17
`
`Ham v. Hain Celestial Grp., Inc.,
`70 F.Supp.3d 1188 (N.D. Cal. 2014) ...........................................................................................13
`
`In re Harmonic Inc. Sec. Litig.,
`163 F.Supp.2d 1079 (N.D. Cal. 2001) .........................................................................................13
`
`In re Invision Techs., Inc. Sec. Litig.,
`No. C04-03181 MJJ, 2006 WL 538752 (N.D. Cal. Jan. 24, 2006) .............................................13
`
`IUE AFL-CIO Pension Fund v. Herrmann,
`9 F.3d 1049 (2d Cir. 1993)...........................................................................................................11
`
`Jones v. Conagra Foods, Inc.,
`912 F.Supp.2d 889 (N.D. Cal. 2012) ...........................................................................................11
`
`Kearns v. Ford Motor Co.,
`567 F.3d 1120 (9th Cir. 2009) .....................................................................................................12
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`Case 4:21-cv-00498-JST Document 57 Filed 12/08/21 Page 4 of 24
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`
`
`Love v. FYI MC, LLC,
`No. 21-cv-02845-EMC, 2021 WL 2913654 (N.D. Cal. July 12, 2021) ........................................6
`
`Moore v. Trader Joe’s Co.,
`No. 4:18-cv-04418-KAW, 2019 WL 2579219 (N.D. Cal. June 24, 2019) ..................................10
`
`Navarro v. Block,
`250 F.3d 729 (9th Cir. 2001) .......................................................................................................10
`
`Reddy v. Litton Indus.,
`912 F.2d 291 (9th Cir. 1990) .......................................................................................................19
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`Romero v. Flowers Bakeries, LLC,
`No. 14-cv-05189-BLF, 2015 WL 2125004 (N.D. Cal. May 6, 2015) ...................................10, 12
`
`Sherwin-Williams Co. v. JB Collision Servs.,
`No. 13-CV-1946-LAB-WVG, 2014 WL 5112057 (S.D. Cal. Oct. 9, 2014) ...............................17
`
`Shroyer v. New Cingular Wireless Servs., Inc.,
`622 F.3d 1035 (9th Cir. 2010) .....................................................................................................10
`
`Song Fi, Inc. v. Google, Inc.,
`Case No. C 14-5080 CW, 2016 WL 3479078 (N.D. Cal. June 27, 2016) ...................................19
`
`Tompkins v. Emc Mortg. Corp.,
`No. CV 10-608-PHX-SRB, 2010 WL 11629510 (D. Ariz. Oct. 28, 2010) .................................14
`
`United States v. United Healthcare Ins. Co.,
`848 F.3d 1161 (9th Cir. 2016) ...............................................................................................11, 20
`
`Vess v. Ciba-Geigy Corp. USA,
`317 F.3d 1097 (9th Cir. 2003) .....................................................................................................17
`
`Statutes / Other Authorities
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`21 CFR § 161.190 ............................................................................................................................15
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`CACI § 1900 ....................................................................................................................................17
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`Fed. R. Civ. P. 8 .................................................................................................................................1
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`Fed. R. Civ. P. 9(b) .................................................................................................................. passim
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`Fed. R. Civ. P. 11 .........................................................................................................................9, 20
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`Fed. R. Civ. P. 12(b)(6) ............................................................................................................1, 6, 10
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`Case 4:21-cv-00498-JST Document 57 Filed 12/08/21 Page 5 of 24
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`NOTICE OF MOTION AND RELIEF REQUESTED
`TO PLAINTIFFS AND THEIR ATTORNEYS OF RECORD:
`Please take notice that, on February 3, 2022, at 2:00 p.m. or as soon thereafter as the matter
`can be heard in Courtroom 6, 2nd Floor, of the United States District Court, Oakland Courthouse,
`located at 1301 Clay Street, Oakland, CA 94612, Defendants Subway Restaurants, Inc., Franchise
`World Headquarters, LLC and Subway Franchisee Advertising Trust Fund Ltd. (collectively,
`“Subway”) will move the Court for an order dismissing the plaintiffs’ Second Amended Complaint
`(the “SAC”).
`Subway’s motion is based on this Notice of Motion and Motion, the accompanying
`Memorandum of Points and Authorities, the Request for Judicial Notice, the declarations of Anne
`Kelts Assayag and Jennifer Myers, the Proposed Order, any oral argument that may be presented at
`the hearing, on all other papers, records and pleadings on file in this action and on such additional
`evidence and argument as the Court may allow prior to and during the hearing on this motion.
`Relief Requested: Subway respectfully requests that the Court (1) grant its request for
`judicial notice and (2) issue an order dismissing with prejudice the SAC in its entirety under Federal
`Rule of Civil Procedure 12(b)(6) for failure to state any claim on which relief may be granted and
`terminating the action.
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`STATEMENT OF ISSUES TO BE DECIDED
`1.
`Whether the SAC must be dismissed under Federal Rules of Civil Procedure 8 and
`9(b) because it fails to allege facts demonstrating that alleged representations by Subway about its
`tuna products are false or misleading to a reasonable consumer of tuna products.
`2.
`Whether the SAC must be dismissed under Federal Rules of Civil Procedure 8 and
`9(b) because it fails to allege facts supporting a plausible inference that the plaintiffs relied on
`actually misleading statements before purchasing tuna products from Subway restaurant locations in
`California between 2013 and 2019 or were actually damaged as a result of purchasing such products.
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`Case 4:21-cv-00498-JST Document 57 Filed 12/08/21 Page 6 of 24
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`I.
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`MEMORANDUM OF POINTS AND AUTHORITIES
`INTRODUCTION
`The history -- and constant shifting -- of the plaintiffs’ claims tells the Court all it needs to
`know to evaluate whether those claims should be dismissed for good. As the Court will recall, the
`plaintiffs filed their original complaint in this action with much media fanfare, accusing Subway’s
`tuna of not being actual tuna. Those claims were false and, after the plaintiffs were warned
`repeatedly by Subway to withdraw their unsupportable claims and were provided facts
`demonstrating that the claims were false because all Subway tuna is, of course, tuna, the plaintiffs
`quickly withdrew their complaint. However, rather than just admit they were wrong, the plaintiffs
`and their lawyers filed an amended complaint, alleging that tuna purchased from a Subway
`restaurant in California may not have been “100% sustainably caught skipjack and yellowfin tuna”
`and/or might have contained “tuna species that come from anything less than healthy stocks, for
`example Albacore and Tongol.” (Dkt. No. 33, First Amended Complaint (“FAC”) at ¶¶2, 4-6; see
`also Dkt. No. 51 (Order Granting Defendants’ Motion to Dismiss) (the “Order”) at 1.) Subway
`demanded that the plaintiffs withdraw those claims, too, but the plaintiffs refused. Subway was,
`therefore, forced to bring a motion to dismiss the FAC. In granting that motion to dismiss, the Court
`found that the plaintiffs failed to plead reliance on any Subway statement because they did not
`identify any specific representation that Subway supposedly made and did not allege that they relied
`on any such representation in purchasing a Subway product. (See Order at 5-8; Transcript of
`October 7, 2021 Hearing (“Transcript”) at 4:4-18.) Over Subway’s objection, the Court granted the
`plaintiffs leave to amend following their insistence at oral argument that they could “simply amend
`the complaint to adequately plead the reliance.” (Transcript at 5:11-14.)
`Rather than amend their complaint to plead reliance on the representations identified in the
`FAC, as the Court permitted them to do, the plaintiffs’ third attempt to state a claim against Subway
`abandons those representations entirely and reverts to the plaintiffs’ original, baseless theory that
`Subway tuna products do not contain tuna -- or, now, do not contain “only tuna” -- asserting the
`same consumer fraud claims they previously withdrew as unsupportable. Unfortunately for the
`plaintiffs, the claims in the SAC -- in addition to having no basis in law or fact -- suffer from the
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`fundamental deficiencies that plagued their prior pleadings, as the allegations that Subway tuna
`either is not tuna or fails to contain “only tuna” are fatally vague, speculative and unsupported.
`Consistent with their improper tactics to date in this litigation, the plaintiffs try to hide that
`their claims lack a scintilla of factual support by alleging that they conducted testing of the finished
`tuna products. This “new” fact cannot save their claims, as the plaintiffs still do not allege facts
`demonstrating that Subway made any misstatements. The SAC alleges that Subway claims that its
`tuna is tuna but the plaintiffs do not allege any facts showing that the tuna is not tuna. Instead the
`SAC alleges that testing failed to reveal any tuna DNA. All that means is that the tests -- of fully
`assembled Subway wraps, sandwiches and/or salads (not the actual tuna that is used as an ingredient
`in those menu items), under undisclosed conditions and based on undisclosed, but surely
`questionable, methodologies -- did not detect tuna DNA. It does not mean that Subway made a
`misrepresentation. Critically, the SAC does not allege that the tuna products actually contain no
`tuna and do not allege what the tuna products are if they are not tuna.
`As has been explained to the plaintiffs repeatedly, it is widely accepted in the scientific
`community that DNA testing is not an appropriate or scientifically valid method by which to test
`processed tuna protein, considering the high pressure and heat used to process such products. The
`tuna needs to be cooked to such extreme temperatures that the protein is frequently completely
`denatured as a result and, thus, is not detectable as tuna DNA. Moreover, it should be obvious to
`and understood by a reasonable consumer that tuna wraps, sandwiches and salads prepared on the
`same counter and with the same utensils as various other menu items and ingredients would have
`some evidence of cross-contact with those ingredients. Plaintiffs do not cite any alleged assurances
`on Subway’s menus or website or in its advertisements that the tuna products would be free from
`the risk of such cross-contact or that contact with other menu items makes Subway’s tuna not tuna.
`To the contrary, Subway’s allergen statement -- publicly available on its website -- fully discloses
`to all consumers, including the plaintiffs here, that “[i]ndividual food items may come in contact
`with one another during food preparation.” (See Request for Judicial Notice (“RJN”), Exs. P and
`Q.)
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`Against this backdrop, the SAC only further confirms that the plaintiffs and their counsel
`failed to conduct due diligence before filing claims in this Court and, as a direct result, still cannot
`plead fraud “with particularity” as required by Federal Rule of Civil Procedure 9(b). While they
`obviously do not feel constrained by the truth, the plaintiffs -- on their third try to state a claim --
`still do not set forth facts sufficient to explain what false statements they supposedly saw, where
`and when they saw those statements and why and how any statements made by Subway are false.
`Plaintiffs also still fail to plausibly allege actual reliance on any alleged representations. Plaintiff
`Dhanowa does not allege anything about her purported experience in purchasing Subway products
`(if she purchased any), and certainly does not allege that she relied on any alleged statement by
`Subway. Plaintiff Amin alleges in conclusory fashion that she relied on general statements that
`Subway’s tuna products are “tuna” but does not support her theory with facts demonstrating why it
`was reasonable for her to believe that a sandwich containing tuna salad -- which she admits consisted
`of tuna mixed with mayonnaise -- and other ingredients or toppings, contains “only tuna.” (See
`SAC at ¶¶22, 37.) To the extent the plaintiffs’ theory is that the tuna in Subway’s products is not
`“only tuna,” this is not supported by any well-pled allegations in the SAC. Plaintiffs consistently
`conflate their theory that Subway’s tuna products were not “only tuna” with references to alleged
`statements that the tuna products contain “100% tuna,” but the plaintiffs concede that any “100%
`tuna” statements only appear on Subway’s website (id.) and they do not allege that they ever
`consulted that website before they purchased any Subway tuna products or that they incurred any
`actual damages as a result of purchasing Subway’s tuna products.
`Plaintiffs’ tactics of making unsupportable claims and then shifting to different, still
`baseless, theories of liability whenever they are proven wrong -- and then returning to the prior
`failed theories -- cannot be allowed. It should be clear by now that the plaintiffs could not plead a
`viable claim against Subway if given yet another (fourth) chance to do so. Given the allegations in
`the SAC and the circumstances to date -- including the fact that the plaintiffs cannot allege that they
`purchased Subway tuna products after reasonably relying on any false statement by Subway -- the
`Court should dismiss the plaintiffs’ complaint yet again, this time without leave to amend.
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`Case 4:21-cv-00498-JST Document 57 Filed 12/08/21 Page 9 of 24
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`II. RELEVANT FACTUAL BACKGROUND
`A.
`Plaintiffs’ Unexplained And Speculative Fraud Allegations
`Plaintiffs’ prior, failed pleading alleged that Subway’s tuna products do contain tuna but
`not “100% sustainably caught skipjack and yellowfin tuna” or “tuna species that comes from
`anything less than healthy stocks, for example Albacore and Tongol.” (See Dkt. No. 33 at ¶¶4-6.)
`Plaintiffs no longer challenge those statements. (See generally SAC.) Instead, the plaintiffs raise
`two entirely different alleged misrepresentations: (1) the tuna products were “tuna” and (2) the
`tuna products contained “100% Tuna.” (SAC at ¶20.) Plaintiffs allege that Subway’s in-store
`menus identify tuna products as “tuna” and that Subway’s website states that Subway tuna salad is
`“100% wild caught tuna blended with creamy mayo.” (SAC at ¶22; see also RJN, Exs. A-C, H-
`M.)
`
`Plaintiffs are alleged to be residents of Alameda County, California. (SAC at ¶¶13-14.)
`While the SAC names plaintiff Dhanowa as a party, it sets forth no allegations about her, does not
`allege that she purchased any Subway products, does not allege that she relied on any statements
`that Subway made and does not allege that she suffered any harm. (See generally SAC.) As for
`plaintiff Amin, the SAC alleges that, on unidentified dates “[i]n each year beginning in 2013 and
`continuing until 2019,” Ms. Amin ordered, purchased and consumed Subway tuna products sold at
`a single Subway restaurant in Palo Alto, California. (SAC at ¶36.) Plaintiff Amin alleges that,
`each time she visited that Subway restaurant, she “looked at the menu, acknowledged the food
`option identified as being ‘tuna,’ ordered a sandwich or wrap because it was identified as being
`‘tuna,’ and consumed the Tuna Products, all with the understanding and belief that what she was
`eating was, in fact, ‘only tuna.’” (SAC at ¶37 (bold emphasis added).) Plaintiff Amin does not
`allege that she reviewed or relied on any statement by Subway that the tuna products contained
`“100% Tuna” in making a purchase, that a Subway tuna sandwich consisted only of tuna and no
`other ingredients or items, including as a result of cross-contact with other Subway food items, or
`that Subway tuna salad would reveal tuna DNA if subjected to a DNA test. (See id.)
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`Case 4:21-cv-00498-JST Document 57 Filed 12/08/21 Page 10 of 24
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`B.
`Subway’s Actual Menus, Labeling And Advertising Practices
`Consistent with the plaintiffs’ allegations, the menus at every Subway restaurant in
`California and on the internet simply describe Subway’s tuna products as “Tuna” or “Classic
`Tuna.” (RJN, Exs. A-D, H-M.)1 Subway tuna sandwiches and wraps are served in nonspecific
`paper packaging and “To-Go” bags that make no representations about tuna or any other aspect of
`the product. (RJN, Exs. E and G.) Subway salads likewise are served in packaging bearing no
`statements regarding the products. (RJN, Ex. F.)
`The “US Product Ingredient Guide” -- available for download on the Subway website and
`available in paper copy at Subway restaurant locations -- describes Subway “Tuna Salad” as
`“Tuna (tuna, water, salt), mayonnaise.” (RJN, Exs. N and O.) Subway tuna sandwiches and
`wraps are Subway tuna salad placed on bread or a flour tortilla with a variety of toppings of the
`customer’s choosing: For the time period during which the plaintiffs claim they purchased
`Subway tuna products, the ordering portal on the Subway website stated that the “Classic Tuna”
`sandwich included “[f]laked tuna, mixed with mayo, and your choice of fresh vegetables.” (RJN,
`Exs. H and I.) The website ordering page similarly described tuna wraps and salads as “flaked
`tuna mixed with mayo.” (RJN, Exs. J-M.) Subway tuna sandwiches are made to order at Subway
`restaurants using the same counter and utensils used to make other Subway sandwiches and food
`products with other Subway ingredients, like chicken, ham, bacon and roast beef. (RJN, Exs. N-
`Q.)
`
`C.
`Plaintiffs’ Alleged Testing Fails To Show No Tuna In The Products
`According to the SAC, on some undisclosed date(s), Southern California marine biologist
`Dr. Paul Barber, and/or researchers at his lab, performed “DNA barcoding” testing on twenty
`samples of tuna products collected from twenty different Subway restaurants “in the greater
`
`
`1 The Court can consider these matters on a motion to dismiss: “When ruling on a Rule 12(b)(6)
`motion to dismiss, a court may, without converting the motion to one for summary judgment,
`consider ‘documents attached to the complaint, documents incorporated by reference in the
`complaint, or matters of judicial notice[.]’” Love v. FYI MC, LLC, No. 21-cv-02845-EMC, 2021
`WL 2913654, at *3 (N.D. Cal. July 12, 2021) (quoting United States v. Ritchie, 342 F.3d 903,
`907-08 (9th Cir. 2003)). The Court already took judicial notice of these documents in ruling on
`Subway’s motion to dismiss the FAC. (Order at 3.)
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`Southern California region.” (SAC at ¶23.) Plaintiffs allege on information and belief that “all
`California-based Subway restaurants receive their Tuna Products from the same supply chain” but
`do not allege that Dr. Barber or his team tested any tuna products from the only store from which
`plaintiff Amin alleges to have purchased tuna products and do not explain whether Dr. Barber’s
`testing was performed on tuna products sold during the 2013 to 2019 date range when plaintiff
`Amin alleges to have purchased Subway tuna products. (See SAC at ¶¶23, 27, 36.) Plaintiffs also
`do not allege that Dr. Barber and/or his researchers tested the actual tuna that Subway allegedly
`receives through its supply chain; to the contrary, the plaintiffs admit that Dr. Barber and/or his
`researchers only tested assembled tuna wraps, sandwiches or salads containing tuna salad
`combined with bread, condiments such as vegetables, cheese and sauces and/or other wrap,
`sandwich or salad ingredients. (See SAC at ¶¶23-24.) Plaintiffs do not specify what, if any,
`toppings or condiments were included on the tuna products that they purchased and/or tested.
`Plaintiffs further do not allege when the testing was conducted, how long it occurred after the tuna
`products were purchased or under what conditions the tuna products were stored until they were
`tested.
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`The SAC does not describe the chain of custody or precise testing methodology but does
`allege that Dr. Barber and his researchers used unspecified “custom sequencing” methods to test
`the samples against four different “primers,” including primers for unidentified tuna species.
`(SAC at ¶24.) Based on this unspecified methodology, Dr. Barber’s testing allegedly failed to
`detect tuna DNA sequences in some but not all of the samples but did detect undisclosed amounts
`of chicken, pork and “cattle” DNA in certain samples. (SAC at ¶25.) Based on these test results,
`the plaintiffs allege that the tuna products are not “tuna” or “100% tuna” but instead are
`“contaminated or otherwise adulterated such that consumers are not receiving the product they
`reasonably expect to be purchasing.” (SAC at ¶26.)
`Following the plaintiffs’ filing of their initial complaint, certain news outlets tested
`Subway tuna products to evaluate the allegations about Subway tuna not being tuna. (See RJN,
`Exs. T-V.) Inside Edition’s investigative unit bought tuna from three Subway locations, sent
`samples of that tuna to a lab that specializes in conducting DNA testing of fish and confirmed that
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`all three samples that were tested indicated tuna DNA. (See RJN, Ex. T.) A reporter for the New
`York Times purchased other tuna products, removed and froze the tuna and shipped it to a
`commercial food testing lab. (See RJN, Ex. U.) The testing conducted by the New York Times
`detected “no amplifiable tuna DNA” in the samples and, thus, could not identify the species of fish
`in the product, noting that these inconclusive results could be attributed to the fact that the tuna is
`highly processed. (Id.) Following the New York Times report, Inside Edition again
`commissioned testing of Subway tuna products and again confirmed the presence of tuna DNA in
`all of the products that it tested. (See RJN, Ex. V.)
`D.
`Plaintiffs Do Not Allege Facts Showing Why Subway’s Statements Are False
`The SAC concedes that plaintiff Amin “did not take steps to verify the Tuna Products’
`components, or to verify whether the Tuna Products contained tuna as the sole ingredient.” (SAC
`at ¶40.) However, this lack of facts did not stop the plaintiffs from claiming that the Subway tuna
`products they allegedly purchased do not contain tuna or 100% tuna. (See, e.g., id. at ¶¶3-4.) The
`SAC does not allege facts supporting the conclusion that the tuna in Subway’s tuna products is not
`tuna or 100% tuna. Indeed, the SAC does not even allege what the tuna products are if they are
`not tuna. Nor does the SAC set forth any subjective facts -- e.g., that the product smelled, tasted
`or looked like something other than tuna -- but instead proclaims that Subway’s representations
`about its tuna are false, without further explanation or supporting facts.
`Plaintiffs next allege that Subway does not take “sufficient measures to control or prevent
`the known risks of adulteration to its Tuna Products.” (SAC at ¶26.) However, the SAC does not
`allege what the “known risks of adulteration” are, what adulteration might have befallen the tuna
`products that plaintiff Amin allegedly purchased and consumed or what measures would be
`sufficient to prevent adulteration and why. Plaintiffs charge Subway with “actively perpetuat[ing]
`actions and steps that encourage mixing or allowing non-tuna ingredients to make their way into
`the Tuna Products” but they provide no facts showing what these “actions and steps” are, what
`“non-tuna ingredients” might actually be in the products or how the plaintiffs made any
`determination that the products are adulterated. (SAC at ¶26.)
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`The SAC asserts a variety of statutory and common law claims, all of which sound in fraud
`and are based on the same theory; i.e., for reasons the plaintiffs still fail to explain, Subway’s
`representations about the content of its tuna products are somehow inaccurate or misleading. (See
`SAC at ¶¶46-125.) All of these claims must be dismissed.
`III. PROCEDURAL HISTORY
`It would be bad enough if the SAC were the plaintiffs’ first -- or even second -- stab at
`claims against Subway. But it is truly telling (and damning) that this lawsuit was initiated by the
`plaintiffs and their lawyers filing a complaint alleging that Subway’s tuna products contain no
`tuna at all. (See Complaint, ECF No. 5 at ¶2 (“The Products lack tuna and are completely bereft
`of tuna as an ingredient”).) Plaintiffs and their attorneys appear to have reasoned that filing such
`sensational public charges would maximize media attention and result in a quick settlement,
`thereby excusing their lack of a reasonable basis on which to make such claims.
`After Subway provided the plaintiffs’ lawyers with evidence demonstrating the quality and
`sourcing of Subway’s tuna products, and the fact that the tuna was in fact tuna, the plaintiffs
`quickly abandoned their “no tuna at all” theory, effectively conceding that their original claims
`were meritless. However, rather than do the right thing and dismiss the suit and publicly
`apologize for the harm that they caused to Subway’s franchisees, the plaintiffs came up with a
`new theory that consumers were somehow misled by claims that the