Bezdek alleged that Vibram deceptively marketed theFiveFingers shoe, a flexible, thin-soled shoe contoured to the feet and toes. FiveFingersshoes are meant to mimic barefoot running while also affording someprotection. They sell for $80-125, andsales have exploded for the past 5 years. Vibram has repeatedly advertised thehealth benefits of its shoes compared to others, including claiming thatFiveFingers would (1) strengthen muscles in the feet and lower legs, (2)improve range of motion in the ankles, feet, and toes, (3) stimulate neuralfunction important to balance and agility, (4) eliminate heel lift to align the spineand improve posture, and (5) allow the foot and body to move naturally. Otherclaims: FiveFingers would improve proprioception and body awareness, reducelower back pain and injury, and generally improve foot health.
A brochure included with the shoes said that “[t]he benefitsof running barefoot have long been supported by scientific research” and that“[r]unning in FiveFingers enables you to reap the rewards of running barefootwhile reducing ... risks.” Vibram’s website said things to the same effect andcontained doctors’ endorsements of the health benefits of the shoes.
Bezdek bought a pair relying on these purported healthbenefits, but sued alleging that the ads misrepresented the health benefits andtheir scientific support. A websitepresenting research funded in part by Vibram says that the reports of decreasedinjury were “anecdotal” and that “there is very little scientific evidence tosupport this hypothesis at this time.” TheAmerican Podiatric Medical Association took a similar position on the anecdotalevidence of health benefits and inadequate research to date. Articles in professional publications reportno evidence of decreased injuries in barefoot runners, “a fact echoed by avariety of other researchers.” An APMA article “also called into doubt theability of barefoot running to improve muscle strength, and indicated that theauthors were unaware of any study that evaluated the proprioceptive ability ofbarefoot runners.”
Bezdek alleged that if she’d known the truth, she wouldn’thave bought the shoes, and that reasonable consumers wouldn’t have paid apremium for the shoes either. She sought to represent a nationwide class, or inthe alternative a Florida class, with claims under Massachusetts law or in thealternative under Florida law. Both states use similar liability standards: aplaintiff must show that a deceptive act or practice by the defendants causedan injury or loss suffered by her.
The court found the allegations sufficient under Rule 9(b),assuming it applied. The complaintspecifically identified allegedly misleading statements about FiveFingers’health benefits, often with a specific date, along with allegations about acontinuing campaign through the class period. Bezdek also alleged that there wasn’t scientific support for theseclaims, and that various members of the scientific community and trade publicationsagreed, which plausibly alleged at least a tendency to deceive.
Vibram argued that Bezdek was objecting to the allegedbenefits of barefoot running. “Maybe so.But, as alleged, defendants chose to incorporate the purported benefits ofbarefoot running into its advertising campaign.” Vibram claimed that wearing FiveFingersprovided the scientifically-corroborated benefits of barefoot running; if thosebenefits 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 motionto dismiss. Nor did Bezdek need to pleadin more detail which statements she relied on—“the complaint is replete withthe sort of representations defendants made on their website throughout therelevant period. Precisely which statement or particular benefit influencedBezdek's decision is irrelevant, given that she is not required to prove actualreliance.”
Vibram argued that Bezdek failed to allege injury, but theeconomic injury caused by buying shoes she wouldn’t have bought, or paying morethan she would have paid, had she known the truth counted in both Massachusettsand Florida, at least as far as a federal judge trying to apply state law couldtell. Buying the shoes based onmisrepresentations alone isn’t enough to show injury, though it does showcausation. At least assuming Bezdek wasa current owner (given that her proposed class excluded those who’d bought theshoes 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 bedifficult to determine what market value FiveFingers shoes have without theirpurported health benefits, or at some stage of consumer doubt regarding theirpurported health benefits—so difficult, even, that plaintiff may fail toquantify damages,” though comparisons to alternative footwear might help. Butthat 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 theadvertising at issue was untrue, deceptive, or misleading. Vibram argued that Bezdekfailed to plead specific facts about scienter, but state of mind may be generallyalleged even under Rule 9(b) as long as there’s a reasonable inference ofscienter. Even though the law is also acriminal statute, there was no reason to apply a higher pleading standard whenthe statute also contemplates a private equitable remedy sounding in fraud. Given that some of the research Bezdek identifiedwas funded in part by Vibram, it was reasonable to infer that Vibram knew oreasily could have known of the results. Likewise, statements from APMA werereadily available, and the reports that the health benefits of barefoot runninghad never been scientifically proven could support the argument that, even asto earlier ads, Vibram knew that there was no scientific corroboration for itsclaims.
The court concluded that Bezdek would not have a separateremedy in unjust enrichment, given the availability of other remedies.
Finally, Vibram argued that the class allegations wereinsufficient. It might well be thatdifferences in exposure to ads, the ads themselves, different FiveFingersstyles, or reasons for purchasing the shoes would affect the ability to certifya class. But that was for a motion for class certification. Likewise, Vibram’sobjections to a proposed nationwide class were premature until more was knownabout potential conflict of laws. “Choice of law issues may not preclude classcertification if no relevant conflicts exist or, to the extent conflicts doexist, if plaintiffs can be arranged into sub-classes.”
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