Yesterday I blogged about the current state of the Bezdek v. Vibram lawsuit, and posted a copy of the order allowing the suit to proceed. If you read that whole order (you did read the whole order, right?) you might have noticed that there is yet another lawsuit against Vibram.
Again, it’s a class action lawsuit for fraud.
Let me say a few words about this newer lawsuit, DeFalco v. Vibram.
As I noted, this is another fraud lawsuit against Vibram for the FiveFingers. It was filed last August in, of all places, the Will County (Illinois) Circuit Court. However, Vibram got the case removed to the Federal District Court in Chicago.
“Removed” is weird lawyer terminology. You and I would just say the case had been “moved”. But “removed” is what they say when a case is transferred from a state court to a federal court. (Yes, they were making a federal case out of it.)
The complaint itself is pretty similar to the other cases I’ve written about, Safavi v. Vibram and Bezdek v. Vibram.
One thing I’d like to stress is that none of these Plaintiffs are claiming that FiveFingers actually physically injured them. No, they are simply claiming fraud. For instance, from the Order in Bezdek,
Bezdek does not allege any sort of physical injury from wearing or running in FiveFingers.6 [fn. 6: Neither, for that matter, does Bezdek discuss whether she even used the shoes or received any health benefits from them.] Rather, Bezdek alleges injury in the form of economic loss, resulting from the fact that she would not have purchased FiveFingers if she had known the advertised health benefits were untrue, or at least that she paid more for the shoes than they were worth.
These cases are classic class action lawsuits. The “injuries” that Bezdek and DeFalco suffered, an economic loss of $100 or less, really don’t amount to much, and don’t make a lawsuit really worth it. So, what’s the motivation? Well, with a class action, if you can claim that 1,000,000 people were duped, the award can be pretty big.
Actually, I can say that the Vibram payout would be pretty big. But the lawyers would take a big chunk of that, and in the end a settlement might give Vibram purchasers coupons worth $10 or $20. That’s the way these things work, generally.
Much of the rest of this complaint is similar to the other complaints, with the same set of pictures of the various models of FiveFingers.
Let me quote a few paragraphs from the Complaint.
2. Through an extensive, comprehensive, and uniform marketing campaign, Defendants claim implicitly and explicitly that scientific research shows that their expensive FiveFingers (ranging from approximately $80-$135 per pair), will provide certain “health benefits” that traditional running shoes do not provide. Such representations are false and misleading.
3. FiveFingers are among the so-called “minimalist” shoes intended to mimic “barefoot running,” which is a form of running that has recently increased in popularity. Defendants have claimed that wearing FiveFingers, inter alia, improves posture and foot health, reduces risk of injury, strengthens muscles in feet and lower legs, and promotes spine alignment. Defendants have used these claims to charge prices for FiveFingers that consumers readily paid, believing FiveFingers would confer upon them significant advertised health benefits. Unbeknownst to consumers, Defendants’ health benefit claims are false and deceptive because FiveFingers are not proven to provide any of the health benefits beyond what conventional running shoes provide. In fact, there are no well-designed scientific studies that support Defendants’ health benefits claims regarding FiveFingers. Indeed, running if FiveFingers may increase injury risk as compared to running in conventional running shoes, and even when compared to barefoot running.
A lot of those claims we would agree with, particularly in regards to real barefoot running (as opposed to “minimalist”). A lot here will also depend on exactly how scientifically “proven” Vibram’s claims need to be to be compensatory.
I do find interesting that they state right out at the end that FiveFingers may be more dangerous than real barefoot running, something that many of us prescribe to (because of the lack of direct feedback from the soles).
There is also
34. Likewise, CEO Tony Post also false promotes and advertises that FiveFingers’ purported “health benefits” are supported by research. Mr. Post has stated that the “strong commitment to research and innovation, along with passionate consumer feedback, inspired our new education section on the Vibram website[]” and, referred to the “the vital health benefits in utilizing a minimalist fitness routine.”14 [fn. 14: Vibram FiveFingers: Minimalist Footwear Company, Vibram FiveFingers Debuts New Educations Resources, India Retail News, Feb. 8, 2012.]
This makes me wonder if Vibram may have some internal research that has never been published. It would be interesting if these lawsuits bring that out.
Later on in the Complaint:
44. Another example demonstrating the lack of scientific research on minimalist shoes is illustrated through the U.S. Army. The U.S. Army plans to study the effectiveness of the shoes. The reason is that the effectiveness of minimalist shoes is scientifically unproven.21 As Lt. Col. Timothy Pendergrass states, “[w]hat we do know is we don’t know a whole lost, and we need more research.”22 Lt. Col. Pendergrass also stated that “[t]here’s a lot that’s stated out there without any research out there to back it up, so we’re trying to look at the kinds of research we can do to answer those questions.23 [fn. 21, 22, 23: Joe Gould, Army Seeks More Input on Minimalist Shoes, Army Times, Feb. 13, 2012, 23.]
Now this is really interesting, since we know that the result of this research has now come out, as described in the “American Podiatrist” blog entry, Army Study Goes Big, Recommends Barefoot. I really don’t know how this would affect the lawsuit; what happens if the research wasn’t there when the claims were made but subsequent research validates the claims. Interesting question.
The following paragraph I find rather specious as a claim about lack of support.
46. As for Defendants’ deceptive statements about the reduced injury risk, the APMA Article notes that although there are studies demonstrating reduced injury factors in laboratory situations, “[n]o evidence was found that demonstrates a reduced prevalence of running injuries in barefoot runners.”25 [fn. 25: David W. Jenkins DPM & David J. Cauthon, RPh, Barefoot Running Claims and Controversies, Journal of the American Podiatric Medical Association, May/June 2011.]
Research has found that barefoot and minimalist running reduces the factors that cause running injuries. But they will discount that because it has only been demonstrated on treadmills, not in full-fledged outdoor running studies? In my view, that is asking way too much of the research.
And here’s the paragraph describing one difference between minimalist and barefoot running.
55. Finally, Defendants’ comparison of running in FiveFingers to barefoot running is itself misleading. Indeed, the ACE Study found that “compared with barefoot runners, shoe runners and those in Vibrams showed more pronation, which is the natural side-to-side movement of the foot during running. Excessive pronation is associated with more injuries.
That of course doesn’t even mention the proprioceptive differences.
In this case, Vibram has again made a Motion to Dismiss (though it also asks the court to transfer the case, or stay the case). Staying the case (i.e., putting it on hold waiting for the result in Bezdek) probably makes the most sense.
But I love the opening of their motion:
A difference of opinion does not mean that one person is lying. This is the logical mistake that Plaintiff De Falco makes, and the main reason his complaint should be dismissed.
The complaint alleges that there are physicians, coaches, and athletes who believe in (and have experienced) health benefits attributable to barefoot or minimalist running. The complaint also alleges that some physicians believe that more research on the subject is needed—and that one clause in one article by one physician definitively proves that one health benefit is not attributable to barefoot running. The lack of unanimous agreement regarding the health benefits of barefoot or minimalist running in no way shows that Vibram made deceptive statements regarding its minimalist shoes.
That is so true.
Meanwhile, the lawyers are doing the sparring that lawyers do so well. DeFalco’s lawyers are trying to get the case remanded back down to the Illinois court (saying, for instance, that the $5,000,000 threshhold for a federal suit is not obviously met). And they are trading briefs about that and the motion to dismiss (or stay).
One interesting thing: DeFalco’s lawyers are right on top of things: they’ve already notified the court of the Order in the Bezdek case.
From my point of view, the best part of this (aside from having a ringside seat in the Coliseum), is that these lawsuits will really bring out the citations of research. I’ve already seen a bunch of stuff that I didn’t know was out there. Digesting it all, however, is a different matter.
In the end, we all know about how losing the shoes have allowed so many people with knee and other problems, people who gave up running, have been able to return to doing so, without problem.
And I don’t know how any of that would appear in these lawsuits.
Ahcuah 
Leave a Reply