Friday, March 01, 2013

Must be the shoes: another footwear claim survives

Bezdek v. Vibram USA Inc., 2013 WL 639145 (D. Mass.)

Bezdek alleged that Vibram deceptively marketed the FiveFingers shoe, a flexible, thin-soled shoe contoured to the feet and toes. FiveFingers shoes are meant to mimic barefoot running while also affording some protection.  They sell for $80-125, and sales have exploded for the past 5 years. Vibram has repeatedly advertised the health benefits of its shoes compared to others, including claiming that FiveFingers would (1) strengthen muscles in the feet and lower legs, (2) improve range of motion in the ankles, feet, and toes, (3) stimulate neural function important to balance and agility, (4) eliminate heel lift to align the spine and improve posture, and (5) allow the foot and body to move naturally. Other claims: FiveFingers would improve proprioception and body awareness, reduce lower back pain and injury, and generally improve foot health.

A brochure included with the shoes said that “[t]he benefits of running barefoot have long been supported by scientific research” and that “[r]unning in FiveFingers enables you to reap the rewards of running barefoot while reducing ... risks.” Vibram’s website said things to the same effect and contained doctors’ endorsements of the health benefits of the shoes.

Bezdek bought a pair relying on these purported health benefits, but sued alleging that the ads misrepresented the health benefits and their scientific support.  A website presenting research funded in part by Vibram says that the reports of decreased injury were “anecdotal” and that “there is very little scientific evidence to support this hypothesis at this time.”  The American Podiatric Medical Association took a similar position on the anecdotal evidence of health benefits and inadequate research to date.  Articles in professional publications report no evidence of decreased injuries in barefoot runners, “a fact echoed by a variety of other researchers.” An 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.”

Bezdek alleged that if she’d known the truth, she wouldn’t have bought the shoes, and that reasonable consumers wouldn’t have paid a premium for the shoes either. She sought to represent a nationwide class, or in the alternative a Florida class, with claims under Massachusetts law or in the alternative under Florida law. Both states use similar liability standards: a plaintiff must show that a deceptive act or practice by the defendants caused an injury or loss suffered by her.

The court found the allegations sufficient under Rule 9(b), assuming it applied.  The complaint specifically identified allegedly misleading statements about FiveFingers’ health benefits, often with a specific date, along with allegations about a continuing campaign through the class period.  Bezdek also alleged that there wasn’t scientific support for these claims, and that various members of the scientific community and trade publications agreed, which plausibly alleged at least a tendency to deceive.

Vibram argued that Bezdek was objecting to the alleged benefits of barefoot running.  “Maybe so. But, as alleged, defendants chose to incorporate the purported benefits of barefoot running into its advertising campaign.”  Vibram claimed that wearing FiveFingers provided the scientifically-corroborated benefits of barefoot running; if those benefits don’t exist, that’s still deceptive.  Vibram then argued that it had scientific support for its ads.  Maybe so, but that doesn’t matter on a motion to dismiss.  Nor did Bezdek need to plead in more detail which statements she relied on—“the complaint is replete with the sort of representations defendants made on their website throughout the relevant period. Precisely which statement or particular benefit influenced Bezdek's decision is irrelevant, given that she is not required to prove actual reliance.”

Vibram argued that Bezdek failed to allege injury, but the economic injury caused by buying shoes she wouldn’t have bought, or paying more than she would have paid, had she known the truth counted in both Massachusetts and Florida, at least as far as a federal judge trying to apply state law could tell.  Buying the shoes based on misrepresentations alone isn’t enough to show injury, though it does show causation.  At least assuming Bezdek was a current owner (given that her proposed class excluded those who’d bought the shoes for resale purposes), the price premium theory was valid in Massachusetts, though the court expressed some reservations about her ability to prove that.  Likewise, for Florida law, “[i]t may be difficult to determine what market value FiveFingers shoes have without their purported health benefits, or at some stage of consumer doubt regarding their purported health benefits—so difficult, even, that plaintiff may fail to quantify damages,” though comparisons to alternative footwear might help. But that difficulty didn’t require dismissal at this stage.

Mass. Gen. Laws ch. 266, § 91, requires that defendants “knew, or might on reasonable investigation have ascertained” that the advertising at issue was untrue, deceptive, or misleading. Vibram argued that Bezdek failed to plead specific facts about scienter, but state of mind may be generally alleged even under Rule 9(b) as long as there’s a reasonable inference of scienter.  Even though the law is also a criminal statute, there was no reason to apply a higher pleading standard when the statute also contemplates a private equitable remedy sounding in fraud.  Given that some of the research Bezdek identified was funded in part by Vibram, it was reasonable to infer that Vibram knew or easily could have known of the results. Likewise, statements from APMA were readily available, and the reports that the health benefits of barefoot running had never been scientifically proven could support the argument that, even as to earlier ads, Vibram knew that there was no scientific corroboration for its claims.

The court concluded that Bezdek would not have a separate remedy in unjust enrichment, given the availability of other remedies.

Finally, Vibram argued that the class allegations were insufficient.  It might well be that differences in exposure to ads, the ads themselves, different FiveFingers styles, or reasons for purchasing the shoes would affect the ability to certify a class. But that was for a motion for class certification. Likewise, Vibram’s objections to a proposed nationwide class were premature until more was known about potential conflict of laws. “Choice of law issues may not preclude class certification if no relevant conflicts exist or, to the extent conflicts do exist, if plaintiffs can be arranged into sub-classes.”

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