It’s time for an update on the lawsuit against Vibram, Bezdek v. Vibram. It looks like Vibram has made an offer that has been accepted.
And who will win? The lawyers, of course.
First, let me give a bit of background. As far as I am aware, there were three lawsuits against Vibram for making unsubstantiated claims about their FiveFingers™. These were basically lawsuits for fraud. (There was also another lawsuit against Adidas for their AdiPure shoe—this lawsuit was dropped by the plaintiff for some reason.)
In addition, they all looked very similar, often using similar language in their complaints. (A “complaint” is the legal document that starts a lawsuit). They also all asked to be classified as “class-action” lawsuits. In a class-action lawsuit, the original plaintiff asks the court to let them represent all the people injured by the supposed fraud, in this case, people who were lured into buying FiveFingers™ by the supposed false claims.
The three cases are Bezdek v. Vibram, filed in Boston in March of 2012; Safavi v. Vibram, filed in Los Angeles in July of 2012; and DeFalco v. Vibram, filed in Chicago in September of 2012.
The Safavi case was stayed (put on hold) to wait for the outcome of the Bezdek case. The DeFalco case was actually transferred to the Bezdek case and incorporated into it. So, it’s the Bezdek case that really matters.
You can read a lot of what I wrote about the lawsuit in Vibrams Sued. I then followed that up with Update on the Vibram Lawsuit when Vibram filed a Motion to Dismiss for Failure to State a Claim. I wrote another post when the lawsuit survived that Motion, Lawsuit Against Vibram Survives Motion to Dismiss. (I also wrote one more blog entry, about the DeFalco lawsuit, DeFalco v. Vibram.)
Regarding the Motion to Dismiss, there is at least one misconception out there about it. The Running Research Junkie thought that surviving the motion to dismiss really meant a fair bit:
Some of the comments from the judge’s ruling do not auger well for Vibram when or if it goes to full trial.
And
Obviously the judge, when presented with arguments from both sides considered the case had merit (a very strong merit!).
No. A Motion to Dismiss for Failure to State a Claim is pretty easy to survive (as least, that is as long as the judges don’t cheat). All you have to do is survive is state “facts” (what you consider facts) that, if true, will allow you to win. At this stage they make no attempt to ascertain whether the “facts” really are true or not.
To quote from the ruling in my case, here’s the standard:
In ruling upon a motion to dismiss, the court is required to interpret all material allegations in the complaint as true and taken as admitted. Only where it is apparent beyond doubt from the face of the complaint that a plaintiff can prove no set of facts upon which recovery could be granted is the movant entitled to dismissal of the action. To prevent dismissal, plaintiffs are not required to prove their case with evidence, but only to point to some set of facts consistent with the complaint that, if proved, would allow plaintiffs to recover.
Bezdek presented some “facts” that Vibram committed fraud (by making unsubstantiated claims about the benefits of the FiveFingers™). The court agreed that, if true, Bezdek could win the case.
At that point, the lawsuit proceeded and a preliminary schedule was drawn up. That schedule had deadlines for identifying who each side would use as expert witnesses. That schedule had a deadline for completing discovery. (“Discovery” is when each side is allowed to ask the other specific questions about the basis for their claims, and to get access to all relevant documents. This is often quite interesting, in that Bezdek would get their hands on, for instance, the documents that went into Vibram advertising, and whatever studies, internal studies too, Vibram was relying on.) There was also a deadline for the Motion to Certify the case as a class-action lawsuit.
So, that’s where we were, waiting for the Hearing regarding class-action certification that was scheduled for May (and meanwhile the expert witness and discovery was happening behind the scenes).
Then, on December 20, 2013, the parties filed a Joint Motion for a Stay (put the case on hold). As they put it
[T]he parties state that they have agreed in principle to a settlement of these cases, and intend to finalize a settlement agreement and seek approval thereof early in 2014.
Obviously, the judge granted the stay (they always prefer a settlement). The judge did require status updates, and this is what their next report (February 3, 2014) said.
The parties are currently in the process of diligently drafting the settlement papers for submission to the Court.
So, they are still working out some of the details, but it looks pretty definitive. Vibram has settled.
The judge has scheduled a Hearing for March 18. He’s expecting the settlement papers to be done by then and for them to be presented to him. The judge will have to sign off on the settlement, but that almost always happens.
In some ways this is disappointing (for those of us in the bleachers). If the case had gone on, we would have probably been able to see many of the results of the discovery (the internal studies, the discussions within Vibram). But that’s also the sort of thing that induces companies to settle.
What’s the result going to be? When I look at results of other, similar class action lawsuits, here’s my guess as to what will happen. Vibram will admit no wrongdoing. But they will also agree to modify their advertising for FiveFingers™ (we might find the change illustrative). And Vibram will probably offer some sort of coupon or refund of around $10 to $30 to anybody who bought FiveFingers™. Vibram will probably also agree to pay the plaintiff’s legal fees.
Who wins? The lawyers. Both sides had high-powered law firms with really nice billing rates (I’m guessing $1,000 to $1,500 an hour). And they worked really, really, really, really hard on this.
You heard it here first.
I would love to see “regular” shoes taken to court for the damage they cause to our feet. It would help make people more aware of the problems with footwear and maybe get more to go barefoot.
I tried these things once, the toes are as stiff as stone. They are better than regular shoes since they actually bend in the middle. However, your feet will always be better than these things and the combination of sensory deprivation and reduced padding means that they likely cause stress fractures. Especially if you walk like you are wearing shoes. That and the bottoms are slippery because the sole is a solid cast of a bare footprint shape, which means that while it looks more like a foot it has none of the benefits, traction, sensory input, or ability to mould to the terrain. They may be a step in the right direction for shoes…. but that’s like saying that less harmful cigarettes are a step in the right direction for smokers. It is still a very ridged shoe that holds the toes tightly and it isn’t anything like as good as a bare foot. They also flood in puddles, which isn’t as nice, whereas simply stepping in puddles barefoot is very nice.
What sensory deprivation? You feel everything through them.
Quite frankly, no you don’t. Any more than you feel “everything” when wearing gloves. I’ll agree that you’ll feel more with the toeshoes on, but it is nowhere near as much as when you are really barefooted.
The lawsuit, of course, is nonsense. For me, Vibrams have allowed me to maintain a near barefoot lifestyle for almost of all of my activities. I am constantly back and forth between Vibrams and barefoot, and have never had to make any serious adjustment. I wear the least built up shoes they make. I don’t do much running, but play lots of basketball with my son in them. I frequently walk barefoot in the city. I certainly know the difference between being bare and wearing a thin layer of rubber, and have never assumed that Vibrams offered any therapeutic benefit vs. going barefoot. In the world I live in in New York City, I need some flexibility. Without foot gloves like these, I’d be stuck way too often in “proper shoes.”
[…] read more […]
How come you wear shoes when you play basketball?
I often shoot around barefoot. But games can get pretty rough. And the asphalt can get really hot by late morning. With my level of conditioning, there’s a limit to what I can do barefoot on the basketball court. Others might go further.
Ah, 0k. Thanks.
[…] read more […]