Kathleen McLaughlin, the ex-wife of convicted Subway pitchman Jared Fogle filed a lawsuit Monday in Indiana State Court contending she would never have married Fogle if the company had reported his sexual interest in children. The suit alleges that Subway’s parent company was warned about Fogle’s behavior at least three times but did not report it.
The complaint sets forth specific allegation of when Subway was made aware of Fogle’s criminal proclivities:
• A Subway official was allegedly informed in 2004 that Fogle had approached a young girl for a sex act at Las Vegas promotional event for a franchise. Subway sent its senior public relations manager to ask Fogle and the franchise owner about the allegation, rather than ask the victim.
• In 2008 a Subway franchisee allegedly alerted Subway’s then-CEO that Fogle had made disturbing comments that he had had sex with minors as young as 9 and suggested that the franchisee prostitute herself. The CEO responded that Fogle had met someone and “we think she will keep him grounded,” according to the suit. The CEO was referring to McLaughlin. The franchisee complained to two other Subway executives, who dispatched the senior public relations manager to ask Fogle about the complaint.
• In 2011 a Florida journalist allegedly complained on Subway’s website that she had serious concerns about Fogle being around children. The journalist helped the FBI record conversations with Fogle. The suit says a Subway spokesperson admitted that the complaint was never escalated or acted upon.
In 2010 McLaughlin married Fogle. In 2015 Fogle was sentenced to 15 years and eight months in prison after he plead guilty to traveling across state lines to engage in illicit sexual conduct with a minor, and distribution and receipt of child pornography. His ex says she would have never married him had she been told what Subway knew. The suit lays out facts showing the importance of Fogle to the sandwich chain. While Fogle was its primary spokesperson, Subway tripled its sales to $11.5 billion and more than tripled its advertising budget, going form $90 Million a year to $300 Million per year. In 2013, the suit alleges, Subway’s Chief marketing Officer stated that one-third to one-half of Subway’s growth was attributable to Jared and that he was “inextricably linked to the brand.”
The suit also says Subway promoted Fogle as a family man in a 2015 ad campaign that depicted the likeness of McLaughlin and the couple’s two children through animations, without obtaining proper consent. That would be a violation of Indiana’s strict right to privacy/right to publicity laws. These laws prohibit the likeness of an individual in a commercial use without the person’s written consent. That part of the lawsuit appears to be a slam dunk – you either have a written model release or you don’t. Although it is possible they asked Fogle himself to sign a release authorizing the use of his kids’ images which would be enough to protect Subway.
As to the rest of the case, while you can morally blame Subway for not doing more to investigate Fogle or for not telling his wife, trying to seek damages essentially for “wrongful marriage” and intentional infliction of emotional distress may be too much for a court to handle. Subway has no duty to report this type of crime except to law enforcement under the Indiana Code. Certainly if a customer had been subjected to abuse by Fogle, then Subway could be held responsible if it did not do enough to protect its customers (or its employees). But extending the duty to outside third parties? I don’t think so, especially when it is not clear it had definitive proof of Fogle’s crimes: in one case Subway supposedly knew about Fogle allegedly asked an underage girl to engage in sex; in another he made remarks about liking sex with underage girls; in a third a reporter complained about concern’s about Fogle’s behavior around children. That reporter later told the FBI of her concerns and recorded Fogle making incriminating statements which ultimately led to his arrest. But it would put too great a burden on employers to require them to notify spouses and others of their employees (or here spokesperson’s) suspected criminal activity. If I were Subway’s lawyer, I would take one strong shot to try to immediately dismiss the suit as having no basis under law. If that fails to succeed, then Subway likely will want this to go away as quickly as possible and not have its brand swept through the dirt over Fogle again.
Here is the complaint she filed