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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