On May 1 the details of the settlement between Vibram and the folks that were suing them were filed with the District Court in Boston.
The results look rather typical of a class action lawsuit.
If you really want the details on the lawsuit, I have some previous posts you may want to look at first.
- Vibrams Sued.
- Update on the Vibram Lawsuit.
- Lawsuit Against Vibram Survives Motion to Dismiss.
- Vibram is Settling Lawsuit.
In short, Vibram made various claims about their toeshoes, including pointing to some of the research done regarding barefoot and minimalist running. The thing is, as far as I can tell, the research is still rather up in the air.
Yes, there are studies that some benefits to barefoot running, in particular how is reduces heel strike and the subsequent shocks that run up the legs. But in general, while there is an awful lot of anecdotal evidence about runners who were unable to keep running after years of shoe-running but were able to run barefoot, real studies that take a careful look at that are really, really hard to do. It’s hard finding the right sort of people; it’s hard getting enough of them; it’s hard to measure what you are looking for.
So, the lawsuit claimed, more or less, that Vibram was severely overstating the state of the research.
In addition, and this really annoyed me, Vibram touted the benefits and studies of actual skin-to-ground barefoot running, while at the same time noting that their shoes protected from the skin touching the ground. For instance, in their reply to the complaint, Vibram said:
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.
What they didn’t note there was that direct skin-to-ground contact is what let’s the skin provide important feedback, and in particular it helps stop you from overdoing it before the internals of your foot have strengthened sufficiently. This has probably led to the many reports of stress fractures in new Vibram users. See, e.g., Vibrams: Olbermann on Letterman.
That wasn’t really the basis of the lawsuit; it just shows how marketing distorts that actual state of studies. And it’s that sort of marketing that was the basis of the lawsuit.
So, what was the settlement?
First, of course, Vibram admits no wrongdoing.
Next, the settlement is for $3,750,000.00. That includes fees for the lawyers, and any administrative fees for handing out the “awards”. However, the attorney fees are limited to $937,500.00, with expenses limited to $70,000. Nice work if you can get it.
Oh, and Bezdek, the person who filed the original lawsuit, gets $2,500,
“to compensate the Plaintiffs for efforts and risks taken by them on behalf of the Class.”
What about everybody else? As I predicted, as part of the class-action settlement, they get a small cash payout. That is officially limited to $94 per pair of Vibrams bought. However, in reality that is limited further by the total amount of the settlement. In reality, based upon the usual responses to these sort of lawsuits, the settlement says
Based on the experience of similar settlements of class actions, it is reasonable to expect that Class Members may receive payment in the range of $20.00 to $50.00 per pair.
Obviously, with a limited chunk of funds, the payout all depends on how many people make a claim. It looks like they are expecting something like 50,000 to 100,000 people to make claims.
One thing we didn’t get to see is all of the discovery that happened. As a result of the lawsuit, Vibram had to provide the plaintiff’s lawyers with all sorts of data regarding their claims. This was something like 52,000 pages of documents. According to the settlement document
In particular, Vibram produced voluminous documentation to Lead Class Counsel regarding the FiveFingers footwear in the following categories: (i) product design, creation and development; (ii) scientific studies and research; (iii) marketing, advertising, media, and public relations; (iv) sales and accounting records; and (v) e-mail correspondence kept by key Vibram custodians.
And now, because the lawsuit was settled, we won’t get to look at those.
From what I can tell, that’s the real reason for companies settling these sorts of lawsuits. If it gets further along, many of those documents would get filed with the court and become available to the public. Those documents include trade secrets, and all sorts of internal discussions. Companies really, really don’t want that sort of information to get out.
By the way, the class does not include anybody who claims to have been injured as a result of wearing Vibrams. So, those with stress fractures have to continue to sue individually. (I have no idea if there is anybody doing so.)
How will you get your payout? Vibram will reserve the right to request documentation that you really did purchase Vibrams. (You also have to be the end-user, not an intermediary.)
However, the settlement includes a sample claim form. They are only asking for a receipt if you are making a claim for 2 Vibrams or more. Otherwise, they’ll rely on your affirmation, under penalty of perjury, that you bought a pair.
There will be a website: www.FiveFingersSettlement.com with details on how to do all this. That is currently parked. I’m sure they’ll start filling it in shortly.
Finally, there will be an advertising campaign to let people know about the settlement and how to make a claim. Here’s a sample of what such an ad might look like.
Vibram Class Action
The campaign will be at places such as Runners World and Facebook.
I’m not sure what to think about all this. On one hand, Vibram did overstate the research, but I don’t think they did so by very much. I doubt the lawsuit really was justified.
On the other hand, $3.75 million isn’t much of a payout. I can see why they settled.
The settlement still needs to be approved by the judge; once that happens they’ll set up the website and work on processing claims.
[Note: I tried uploading a copy of the settlement agreement to scribd. It was not cooperating. If you don’t see it above, that’s why.]
Ahcuah 
As usual, it is the attorneys who profit from these lawsuits. They get about 1/3 of the settlement, while the plaintiff might have their insurance deductibles paid for their broken feet. Everyone else gets a rebate check for maybe 25% of the overpriced foot gloves they bought. I should have went to law school.
“I should have *went* to law school.” You wouldn’t have made it.
Thanks for reporting on this, Bob! Hopefully it won’t be much longer before we get people to understand that “gloves” on your feet is still part of the problem, when it comes to promoting biomechanical health and avoiding injury.
Hopefully. But unfortunately years of bent toes hasn’t shifted the public perception. They may just reason that regular shoes are ”better” because they are the “only other choice”. Unfortunately.
It’s outrageous enough that we have to invent new terminology like “skin-to-ground running” because the word “barefoot” has been hijacked by Vibram and other crooks. That’s what I would sue them for if I could.