The Subway Tuna Lawsuit: DNA Dispute, Ruling, and Dismissal

The Subway tuna lawsuit was a 2021 class action in the Northern District of California that accused Subway of selling tuna sandwiches containing no tuna. It ended in July 2023 when U.S. District Judge Jon S. Tigar dismissed the case with prejudice at the lead plaintiff’s request, meaning the claims cannot be refiled. No class was ever certified, and the court never made any finding that Subway’s tuna was mislabeled or fake.¹

What the Lawsuit Claimed

Karen Dhanowa and Nilima Amin, both California residents, filed suit on January 21, 2021, alleging that Subway’s tuna products were “completely bereft of tuna as an ingredient.”² The complaint accused Subway of fraud, false advertising, and unfair competition, arguing that the chain misled customers by marketing its products as “100% tuna” or “100% skipjack and yellowtail tuna.”³ Amin said she had eaten at least 100 Subway tuna meals before filing.⁴

The claims shifted as the case moved along. An amended complaint pointed to DNA testing by Paul Barber, a marine biologist at UCLA. According to the filing, Barber’s lab tested 20 tuna samples from Southern California Subway locations and reported that 19 contained no detectable tuna DNA. All 20 samples were said to contain chicken DNA, 11 pork DNA, and 7 cattle DNA.⁵⁶ Over time, the plaintiffs backed away from the flat claim that there was no tuna at all and refocused on allegations that Subway misled consumers about the composition and sustainability of its tuna.⁷

The DNA Testing Dispute

The central scientific question was whether standard DNA testing can identify tuna in a product that has been cooked at extreme temperatures. Subway argued it cannot. The retort process used in commercial tuna production breaks down and fragments DNA, and Subway’s position was that a failure to detect tuna DNA does not prove tuna is absent — it points to the wrong test.⁷

That view had backing from Applied Food Technologies, a Florida lab specializing in cooked seafood. Founder LeeAnn Applewhite said her lab uses proprietary DNA primers designed for the small, degraded fragments left after high-heat processing. When AFT tested 150 pounds of Subway tuna across 30 samples for the television program Inside Edition, Applewhite said it detected skipjack tuna, yellowfin tuna, or both in every sample.⁷ The FDA has noted that many labs rely on publicly available, unverified DNA databases, a practice the agency does not recommend for regulatory decisions.⁸

It’s also worth knowing that the FDA recognizes 15 different fish species that can be labeled as “tuna.”⁹

How Subway Responded

Subway rejected the allegations from day one, calling them “meritless” and “baseless” in a January 2021 statement and saying its restaurants “receive pure tuna, mix it with mayonnaise, and serve on a freshly made sandwich.”¹⁰ The company maintained throughout that it uses “100% real, wild-caught skipjack tuna.”³ As for the chicken, pork, and cattle DNA the plaintiffs’ testing flagged, Subway attributed those traces to cross-contact during sandwich preparation.⁵

What the Judge Ruled Before Dismissal

Judge Tigar dismissed the first version of the complaint in October 2021 for inadequate pleading but let the plaintiffs try again.¹¹³¹²

Subway did win pieces of that ruling. Judge Tigar dismissed Dhanowa’s claims entirely because the amended complaint contained no facts showing she had purchased a Subway tuna product or relied on any of Subway’s statements. He also rejected the theory that including any ingredient beyond tuna was itself deceptive, writing that “the court will not suspend logic and find that a reasonable consumer would be misled by the mere fact that Subway’s tuna products include any ingredients beyond tuna.”¹² Amin was left as the sole plaintiff.

Why the Case Was Dismissed

The case never reached class certification. The court had bifurcated discovery to focus on class issues first and set an April 3, 2023, deadline for Amin’s expert disclosures. Her attorneys missed it.¹³ The next day, her lawyers told the court they would seek voluntary dismissal.

In her April 2023 motion, Amin said she was pregnant with her third child and dealing with severe morning sickness and other “debilitating conditions” that made continuing as plaintiff impossible. Her attorneys wrote that “the health of the Plaintiff and her unborn child is paramount to her participation in this litigation.”¹⁴ Amin first asked for dismissal without prejudice, which would have preserved her right to refile, but ultimately agreed to dismissal with prejudice. Judge Tigar signed the order on July 27, 2023.¹

Subway’s Failed Sanctions Bid

Subway wasn’t done. In May 2023, it moved for $617,955 in attorneys’ fees against the seven lawyers who had represented the plaintiffs, across four firms: McNicholas & McNicholas LLP, the Lanier Law Firm, Kellner Law Group, and Dogra Law Group.¹⁵ Subway argued the suit was frivolous from the start, that the plaintiffs’ attorneys knew the DNA testing was unreliable, and that they had engaged in discovery abuses and submitted false declarations.¹³

At the July 27, 2023, sanctions hearing, plaintiffs’ attorney Jeffrey Lamb of McNicholas & McNicholas told the judge: “I’m embarrassed about some of the lawyering that occurred in this case. If I could go back and do things over, I would have changed that.” Judge Tigar admonished the attorneys and told the defense team: “If [Subway doesn’t] win the motion, at least they know I get it.”¹⁵

Even so, the judge denied sanctions on August 4, 2023. He called the attorneys’ discovery conduct “blameworthy” but ruled that Subway had not shown Amin “recklessly pursued her claims,” the legal standard required for an award.¹⁶

What the Outcome Means

The case closed without any judicial finding that Subway’s tuna is fake, mislabeled, or deceptively marketed. Because the dismissal is with prejudice, these particular claims cannot be filed again. Subway continues to state that its tuna is “high-quality, premium and 100% real” wild-caught tuna.¹⁷

1
Courthouse News. Fake Tuna Lawsuit Against Subway Dropped by Plaintiffs
2
The New York Times. The Big Tuna Sandwich Mystery
3
NPR. Subway Tuna Lawsuit
4
Salon. Why the Woman Who Sued Subway Over Its Fake Tuna Wants to Drop the Case
5
Bloomberg Law. Latest Subway Tuna Filing Alleges DNA Test Shows Other Species
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CBS News. Subway Tuna Lawsuit DNA
7
Seafood Source. Subway Defends Tuna as Top Tuna Testing Lab Questions DNA Report
8
University of Florida. Seafood Authentication and Applied Food Technologies
9
The New York Times. Subway Tuna
10
Seafood Source. Subway Fighting Back Against Fake Tuna Lawsuit
11
Top Class Actions. Subway Tuna Lawsuit Dismissed but Plaintiffs Can File Again Judge Says
12
Seafood Source. Judge Refuses to Dismiss Entirety of Subway Tuna False Claims Lawsuit
13
Courthouse News. Subway Tuna Suit Motion for Sanctions
14
CBS News. Subway Tuna Lawsuit Dismissed
15
Bloomberg Law. Judge in Subway Case Admonishes Embarrassed Fake Tuna Lawyer
16
Law360. Subway Can’t Get Sanctions in Dropped 100% Tuna Fight
17
Subway. Tuna Facts