Subway Class Action Says ‘Free Sub’ Texts Violate Federal Law

A class action lawsuit claims that Subway sent “free sub” text messages to potential customers without their permission in violation of the Telephone Consumer Protection Act.

Plaintiff Malka Fishman says that on Sept. 3, 2016 she received a text message from Subway advertising free sandwiches.

She claims that this message was sent in violation of the TCPA because it was aimed at advertising Subway’s products and was sent without her consent.

The Subway class action lawsuit alleges that the message stated “This T-Mobile Tuesday, Score a free 6” Oven Roasted Chicken sub at SUBWAY, just for being w/T-Mobile. Ltd supplies. Get app for details.” Allegedly, the message also provided a link.

Fishman says that when users click on the link, they are directed to a T-Mobile web page that advertises the T-Mobile App and T-Mobile Tuesdays.

The Subway TCPA class action lawsuit argues that substantially the same message was sent en masse to thousands of cell phone users in an effort to advertise Subway’s goods and services.

Fishman argues that though the message offered a free sandwich, the free sandwich was a pretext to get customers to purchase other items from Subway, including chips, drinks, and cookies.

The Subway class action lawsuit goes on to argue that the message was sent via T-Mobile and Subway instructed T-Mobile about the content of the message. Allegedly, T-Mobile was acting under the direction and control of Subway, and this action was made for the financial benefit of Subway.

The Subway text message class action lawsuit notes that the message was sent via a short form number, which is often used to send mass text messages. Allegedly, this text was also sent via an automatic dialer, so a single person did not have to send each message.

The TCPA prohibits businesses from using automatic dialers to send messages en masse, so Fishman states that Subway’s use of the automatic dialer was a violation of the federal law.

Additionally, Fishman says that she did not give her prior express written consent to receive these messages, which is required by the TCPA.

The Subway class action claims that many other consumers were similarly affected because they received the message without giving their prior express written consent. 

The plaintiff also notes that she was personally affected by the text message because she was “frustrated and annoyed that [Subway] would send [her] such marketing communication for Subway products or services.”

Allegedly, this invaded her privacy and forced her not be able to use her cell phones because it was occupied by text messages, which caused annoyance and lost time.

The Subway text class action claims that the unwanted advertising message caused potential Class Members damages.

The plaintiff seeks both damages and injunctive relief requiring Subway to not continue to violate the TCPA by sending spam text messages.

Fishman is represented by Abbas Kazerounian and Jason A. Ibey of Kazerouni Law Group APC, Jack J. Gindi of Abramson Labor Group LLP, and Joshua B. Swigart of Hyde & Swigart.

The Subway Advertising Text Message Class Action Lawsuit is Makla L. Fishman v. Subway Advertising Fund Trust, Case No. 2:19-cv-02444-RSWL-AS, in the U.S. District Court for the Central District of California.

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Join a Free TCPA Class Action Lawsuit Investigation

If you were contacted on your cell phone by a company via an unsolicited text message (text spam) or prerecorded voice message (robocall), you may be eligible for compensation under the Telephone Consumer Protection Act.

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