Schafer: Alfalfa sprout lawsuit put Jimmy John's in a pickle

You may have missed an announcement of a proposed class-action settlement that ran this week in the Star Tribune.

It means money — well, sort of — only to readers who somehow suspect they got cheated out of some alfalfa sprouts by the sandwich shop Jimmy John's. But it's well worth noting for the rest of us.

The proposed settlement would bring to a close a class-action lawsuit over missing alfalfa sprouts on a sandwich. Unfortunately, this isn't a joke.

In the case of Starks v. Jimmy John's LLC et al., filed in Los Angeles Superior Court, a customer claimed that Jimmy John's did not put alfalfa sprouts on her sandwich. The notice of proposed settlement said "sandwiches," plural, so that suggests it happened to her more than once.

Since alfalfa sprouts were advertised on the menu, there was a problem.

In a subsequent court filing, the customer alleged interference with contract, intentional misrepresentation, negligent misrepresentation, fraud, violation of California's False Advertising Act and so on.

These kinds of consumer class-action cases are not exactly rare, of course. In a study issued in July, NERA Economic Consulting found 479 consumer class actions with either a preliminary or final settlement reached from 2010 to the end of 2013. Only about two-thirds of them were announced with any sort of settlement fund, to provide financial benefit to the consumers thought to be part of the class.

What's interesting is that about half of all the settlements originated from cases in California.

This Jimmy John's plaintiff was represented by the firm of Shenkman & Hughes of Malibu, Calif. What's missing from the proposed settlement is any indication of what the lawyers could have found out, if anything, when they went looking for further evidence.

Common sense would suggest that it would be difficult to make any fraud claim stick unless Jimmy John's, working in concert with its franchisees, was deliberately withholding sprouts from sandwiches.

This is where the story gets more complicated. There's reason to think that's actually what happened, although it wasn't to swindle anybody.

The class-action lawsuit has a class period of February 2012 through July 21, 2014. And on Feb. 15, 2012, the Centers for Disease Control and Prevention announced it was collaborating with other agencies in an investigation of an E. coli illness outbreak involving raw clover sprouts.

Its initial findings were that among the 11 ill people with information available, 10 reported eating at a Jimmy John's in the week prior to getting sick.

On Feb. 20, 2012, the website Food Safety News reported that Jimmy John's was permanently eliminating sprouts from its menu.

A spokesman for Jimmy John's was not available, but the guess here is that the company and its franchisees didn't change their menus right away. And then they got caught.

Kevin I. Shenkman is lead attorney for the plaintiffs, and he said he's constrained in what he can say by terms of the settlement. He said he cannot comment on why Jimmy John's would have withheld sprouts.

But even in a brief phone conversation, it was clear that he is sensitive to being portrayed as another plaintiff's lawyer who has ginned up an abusive class-action suit, this one over a handful of sprouts that likely amounted to no more than a penny per customer.

Jimmy John's denied the claims, but nevertheless sought to resolve the litigation. As described in the proposed settlement agreement, it took a full day of mediation plus months of additional negotiation to arrive at a settlement.

Jimmy John's has not admitted any liability. But it has agreed to provide customers who claim to have been harmed with vouchers with a face value of $1.40. These vouchers would be good for any Jimmy John's side item (pickle, potato chips or cookie) or soft drink.

Jimmy John's also agreed to "cease and desist from advertising or otherwise representing" to sell sandwiches with sprouts and then not put them on the sandwich, and it agreed make a charitable donation of at least $100,000.

The vouchers issued to customers can only add up to a maximum of $725,000, less the actual costs of the settlement administration, which are estimated at $15,000.

So, if you ordered a sandwich with sprouts from February 2012 through July 21, 2014, and didn't get sprouts, then you may fill out a form, send it in and get the $1.40.

The lead plaintiff is to get $5,000 in addition to her $1.40 voucher. The plaintiffs' attorneys are to receive $370,000 in fees and expenses. That's cash, incidentally, not 264,286 vouchers for a pickle or chips at Jimmy John's.

Meanwhile, business was brisk Friday at a Jimmy John's in downtown Minneapolis. There were several sandwiches like the Totally Tuna and Turkey Tom listed with "sprouts* optional" with the asterisk leading to a menu warning that eating raw or undercooked sprouts poses a health risk.

I have been more a less a regular at this shop but will not be filing a claim for the $1.40 voucher. To claim to be a victim of Jimmy John's is just plain silly.

I also won't be ordering a Totally Tuna with sprouts.

lee.schafer@startribune.com • 612-673-4302