You may recall that last month I wrote about how Vibram was being sued over their toe shoes. It was a class-action lawsuit saying that Vibram was making false claims about “barefoot” running.
I have an update.
The whole premise of the lawsuit was that Vibram was making scientific claims that were not fully supported by research. You can see the original Complaint back at my original entry.
To understand this update, you need to understand a bit about how lawsuits work. You initiate a lawsuit by filing the “Complaint”. That’s what usually makes the news. But then the defendant has an opportunity to file a document to “answer or otherwise respond” to the complaint. This pretty much defines the lawsuit. An “Answer” is a point-by-point rebuttal (and defense) to the charges in the complaint. However, a defendant can instead decide to respond by immediately filing a motion to dismiss the lawsuit.
For a Motion to Dismiss, there is no need for discovery (getting additional information). The Motion is completely dependent upon only what is in the original Complaint. And the Motion basically says that this is such a sucky lawsuit that it didn’t even manage to describe anything that could be the basis for winning the lawsuit.
That is what Vibram did.
But what is more interesting is why. It turns out that they were already being sued for the same thing in Massachusetts, and it was also a class-action lawsuit. Even some of the lawyers were the same! So the motion to dismiss asked that the case be transferred to Massachusetts and joined with the first lawsuit. It looked like a case of forum shopping.
That motion is still pending, but the Massachusetts case was filed last March, so it is farther along. So, let me also update you all on that case.
In the Massachusetts case, Bezdek v. Vibram, there’s already been a Complaint, a Motion to Dismiss, an Amended Complaint (trying to fix the defects in the first complaint), and Motion to Dismiss based on the Amended Complaint. (Obviously, this is all part of the Attorney Full Employment Act :-).) That’s where things on this other case now sit, waiting for a hearing before the court.
The Motion to Dismiss is a fun read, and I am going to excerpt portions for you. Here’s their description with what is wrong with the Amended Complaint:
In her Amended Complaint, as in the initial pleading, Plaintiff continues to plead little more than personal opinions and protests about the concept of barefoot running. Although she softens her attack on barefoot running, the inescapable conclusion remains that her real disagreement is with the concept or sport of barefoot or minimalist running, not with Vibram or its shoes.
The Amended Complaint still fails to state any claim justifying relief. Plaintiff’s conclusory accusations that Vibram made false or misleading statements regarding its FiveFingers shoes and/or their unique relationship to barefoot running still do not meet the pleading standards to which she must conform. Her averments do not establish any wrongdoing on Vibram’s part and, despite her amendment, Plaintiff still makes no attempt to satisfy the requirement that she at least plead that she suffered some actionable harm.
They make a very good point.
Bezdek’s disagreement really is with the concept of the “sport” of barefoot or minimalist running. Looked at it this way, barefoot or minimalist running is a brand new sport, and Vibram has made a product to “support” that sport. Their product does that just fine.
[Quibble: many of us know that Vibrams could be more dangerous than real barefoot running because you don't get the sensory input from the sole to tell you to stop when you should.]
But still, that does not support a fraud lawsuit against Vibram. As they put it later down in the Memorandum,
The miscellaneous studies, positions, and undifferentiated comments cherry-picked and cited by Plaintiff suggest no more than a difference of opinion about the efficacy of barefoot running. Not one of the articles cited by Plaintiff supports a conclusion that Plaintiff could ever prove that Vibram’s statements were false. At most, the articles and statements relied upon by Plaintiff suggest there is a difference of opinion in the relevant scientific community regarding various aspects of barefoot running. They certainly do not make out a claim for fraud, particularly when Vibram’s own marketing materials and website expressly advise consumers about the potential challenges associated with transitioning to running in FiveFingers. Such disclosures and cautions are hardly the hallmark of fraudulent advertising.
I’ve added the emphasis. It really is a case that there are still differences of opinion in the science. It’s not all in yet. The various warnings and advice given by Vibram (including warning about Too Much, Too Soon) really help you with the new “sport” of barefoot or minimalist running. (And yes, I say “sport” because it really isn’t new but is a reaction against the super-padding and support of the last 40 years.)
The Memorandum also has a pretty good summary as to the state/history of toe shoes.
Barefoot running has been around for centuries, and has a well-documented history. Abebe Bikila, the Ethiopian marathon champion after whom the FiveFingers Bikilas shoes Plaintiff purchased were named, famously won the 1960 Rome Olympics marathon gold medal competing barefoot. In fact, the “conventional” running shoe, characterized generally by a thick wedge of padding beneath the heel, was not even invented until the 1970s. Before then, runners generally wore shoes with minimal cushioning and low heels or, like Bikila, no shoes at all.
The reemergence of barefoot running, and of minimalist running shoes like FiveFingers, is often attributed to the 2009 New York Times bestseller Born to Run: A Hidden Tribe, Superathletes, and the Greatest Race the World Has Never Seen, by Christopher MacDougal. Born to Run chronicles the Tarahumara Indians of the Copper Canyon region of Mexico, who are renowned for their ability to run extraordinarily long distances through rough terrain barefoot or wearing only homemade sandals. McDougal attributes this unique ability to the fact that the Tarahumara land lightly on the balls of their feet in what is commonly referred to as a “forefoot strike.” One of the goals of those who favor barefoot running is to maintain a forefoot strike. By contrast, sport runners wearing more conventional running shoes generally land on their heel, in what is referred to as a “heel strike.” See, e.g., Daniel E. Lieberman et al., Foot Strike Patterns and Collision Forces in Habitually Barefoot Versus Shod Runners, 463 NATURE 531, 531 (2010) (cited in the Amended Complaint at ¶ 48).
Barefoot running, i.e., running with skin to ground, presents obvious dangers associated with the running surface. Even though feet are often far more resistant than skin from other parts of the body, environmental surfaces are not always suited for this kind of training. Stones, glass, nails, and other debris can obviously pose significant dangers to barefoot runners. Consequently, a basic principle behind FiveFingers shoes is to provide an option for barefoot running enthusiasts to have a barefoot-like running experience while being better-protected from the elements and environmental hazards. In many ways, FiveFingers function like work gloves for the feet.
OK, I’m annoyed by their glib assertion that skin to ground presents obvious dangers. As we all know, those dangers are horribly exaggerated. Most of their “debris” is easily avoided, and even if stepped on rarely presents any real danger.
Their description continues:
There is a good deal of literature discussing and debating the impact forces and effects of a forefoot strike compared to a heel strike, some of it cited by Plaintiff in her Original and Amended Complaints, and even more analysis in the social media by those who prefer one form of running over the other. Proponents of barefoot running often describe it as more natural, less straining and confining, and as a way to improve muscle strength in the foot. But barefoot running is not for everyone and it is not easily interchangeable with “conventional,” heel-strike running. Indeed, the fact that it takes time to adjust to the forefoot strike form and to experience the individual benefits ascribed to barefoot running, with or without the protection of FiveFingers, is not only well documented, it is disclosed frankly by Vibram, and clearly acknowledged by Plaintiff in both versions of her Complaint. There is nothing false or misrepresentative about these concepts or what FiveFingers shoes do and do not do.
The FiveFingers Bikila shoes that Plaintiff purchased are not intended for conventional-style running—no FiveFingers shoes are—and Vibram conspicuously and repeatedly urges those who may want to try FiveFingers to facilitate their transition to a barefoot-style of running to do so slowly and only according to specific and detailed instructions. Plaintiff’s original Complaint acknowledged these instructions. Plaintiff, on second thought, removed these references from the Amended Complaint, apparently deeming them to be unhelpful. Even so, the amendment does not change the fact that Vibram has been more than forthright in informing consumers (and runners in particular) about the potential challenges they may encounter when using FiveFingers or converting to barefoot-style running.
Simply ignoring these disclosures here does not make them go away. The Amended Complaint suffers from the same failings as did the original one. It should therefore be dismissed pursuant to Rules 12(b)(6) and 9(b).
I’ve attached a copy of the Memorandum below. It’s worth reading the whole thing.