Lawsuit Against Vibram Survives Motion to Dismiss

We’ve been following the lawsuits against Vibrams for making unsubstantiated claims (including claims about the benefits of barefoot running). There was a pending motion to dismiss before the court, and that motion was denied on Wednesday.

So, here’s what’s going on.

First, a bit of a recap. The first suit was Bezdek v. Vibram, in the District Court of Massachusetts. I wrote a bit about it here, in Update on the Vibram Lawsuit. That update was actually about a second lawsuit against Vibram (filed by the same law firm, but in California), Safavi v. Vibram, and I wrote about it in Vibrams Sued. That suit was put on hold waiting for the result of the Bezdek lawsuit.

Last we heard, in the Bezdek case, Vibram had filed a Motion to Dismiss for Failure to State a Claim. I wrote about that in What’s Up With The Toe-Shoe Lawsuits?. The thing about such a motion is that is tries to get the court to agree that, even if every claim in the plaintiff’s complaint is true, the plaintiff still cannot win. It’s a pretty high standard, and such motions are not granted very often.

And in this case, it wasn’t. Now, don’t forget that Bezdek is basically suing under fraud statutes, saying that Vibram made unsubstantiated claims about the Vibrams. Vibram basically said that running barefoot is better, and that, as the court put it in its opinion denying the motion, “Running in defendants’ FiveFingers shoes is meant to mimic barefoot running, while also affording some protection against the elements.”

A lot of the case will probably hinge on whether barefoot running really is better, and whether they can prove it (and maybe whether that was the state of the science at the time of Vibram’s claims). Yes, we have a lot of anecdotal experience that it is, but will that be sufficient in a court of law?

Here’s what the court’s opinion says (I’ve put the full opinion at the end of this posting):

The American Podiatric Medical Association (“APMA”) took the position in March 2012 that, although “anecdotal evidence and testimonials proliferate on the internet and in the media about the possible health benefits of barefoot running, research has not yet adequately shed light on the immediate and long term effects of this practice.” An April 2012 article in Foot & Ankle International and a May/June 2011 article from the Journal of the APMA similarly report that there is no evidence of decreased incidence of injuries in barefoot runners, a fact echoed by a variety of other researchers. The APMA article also called into doubt the ability of barefoot running to improve muscle strength, and indicated that the authors were unaware of any study that evaluated the proprioceptive ability of barefoot runners.

Note that these are claims in the lawsuit, and without any evidence the value of the claims has not been evaluated. (That is because this is a Motion to Dismiss for Failure to State a Claim, which relies solely on the statements in the Complaint, which still need to be proven true.)

[And by the way, the APMA article is stupid if is says that exercising otherwise unused muscles won’t strengthen them. And there are the Robbins studies about improved proprioception with bare feet, and it is a bit disingenuous to say that those don’t count just because they weren’t specifically about barefoot running. But that is stuff that is determined by the court in trial, not on this kind of motion to dismiss. So the suit goes forward.]

The court stresses this later in the opinion (p. 10):

Defendants have no serious argument as to why these allegations are insufficient. They say that Bezdek truly takes issue with the alleged benefits of barefoot running, not with FiveFingers. Maybe so. But, as alleged, defendants chose to incorporate the purported benefits of barefoot running into its advertising campaign. E.g., Compl. ¶ 33. Claiming that wearing FiveFingers provides the scientifically-corroborated health benefits of barefoot running is no less deceptive than claiming that the shoes provide some sort of intrinsic health benefit if the claimed benefits do not exist or lack scientific support.

Defendants also argue that the allegations reflect merely a difference in opinion in the scientific community as to barefoot running, and that Vibram has scientific support for its advertising. Again, this may be so, but resolution of that factbased argument has no place at the motion to dismiss stage. Defendants also provided warnings about the transition to running in FiveFingers; but such warnings have little bearing on the alleged deception, given that they do not qualify the notion that FiveFingers will provide the purported health benefits if used properly.

Anyways, the upshot of this is that the court says that the case may proceed.

The court also allowed the case to proceed as a class-action suit, for now. As long as properly pled, such concerns are not properly raised at this time.

So, what happens next? Discovery. That is, the two parties start asking each other for the evidentiary bases for their claims. This should be very interesting and should probably be a great compendium of all that is known about about barefoot and minimalist running. Each side will also probably start trying to line up experts in the field. I note that this case is filed in Boston, right down the road from Drs. Lieberman and Davis. Sounds convenient.

The result of discovery will probably lead to a Motion for Summary Judgment, but that would a long way down the road. In fact, the next thing the lawyers have to file is a proposed schedule for how things should proceed.

The bottom line here is that case is still alive, and may be a real donnybrook on shod running and minimalist running, with barefoot running going along for the ride.

[Update: If you made it this far, you might be interested in my follow-up discussion of yet another lawsuit against Vibram: DeFalco v. Vibram.]

Here’s the full opinion and order.

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