Did you purchase a pair of Vibram "FiveFingers" shoes hoping that they would make you the next Usain Bolt or Meb Keflezighi? Perhaps you thought that these "barefoot" running shoes could, as claimed, strengthen muscles or reduce foot injuries. If so, you may be eligible for a refund.
Vibram USA Inc., manufacturer of the trendy "FiveFingers" running shoe/foot-glove, has agreed to a settlement of $3.75 million stemming from allegations that it engaged in deceptive advertising regarding its minimalist line of shoes. Vibram denies any wrongdoing in relation to its advertising efforts, and contends that the settlement agreement was reached solely to avoid the pain of competing in this marathon litigation.
Plaintiff Valerie Bezdek kicked off the lawsuit in March 2012, alleging violations of state consumer protection and false advertising laws. Cases filed in California and Illinois were later consolidated with Bezdek's Massachusetts complaint.
Bezdek alleged that Vibram's national advertising campaign promoted the minimalist shoe as providing certain health benefits to its wearers, such as improved posture, reduced risk of injuries, and stronger lower leg muscles. The plaintiff also alleged that these claims lacked the support of scientific studies and that Vibram stretched the conclusions of research to prospective purchasers. Had she known that the scientific claims were unfounded, the plaintiff claimed that she would not have purchased the shoes or would not have paid a premium price for them. Vibram countered that the plaintiff's allegations reflected merely a difference in opinion in the scientific community as to barefoot running, and did not constitute deceptive advertising.
The settlement agreement comes on the heels of Vibram's unsuccessful motion to dismiss, where a Massachusetts district court found that the plaintiff's allegations of falsity and deception were sufficient because she identified the supposedly misleading statements made by Vibram and alleged that those statements were untrue. (Bezdek v. Vibram USA Inc., 2013 WL 639145 (D. Mass. Feb. 20, 2013). The court put it simply: "defendants have no serious argument as to why these allegations are insufficient." After this ominous warning, Vibram sprinted to the bargaining table.
Unable to convince the plaintiffs to put the shoe on the other foot, Vibram eventually entered into a settlement agreement in April 2014 covering a class of purchasers dating back to March 2009. Based on unofficial video and photographic evidence, perhaps this group should include ex-NFLers such as Randy Moss, Eddie George and Dick Butkus, as well as America's favorite mutant superhero Wolverine.
To those claimants who feel they were taken for a five-finger discount by Vibram's advertisements, the settlement agreement, while expressly denying any wrongdoing on Vibram's part, calls for two forms of relief.
First, class members are eligible to receive up to $94 per pair of FiveFingers shoes, though the settlement documents suggest that the anticipated recovery more likely will be in the range of $20 to $50 per pair. Any remaining funds, after claims and expenses, will be donated to the American Heart Association for research concerning running and exercise.
Second, Vibram has agreed to put the brakes on its current FiveFingers marketing and advertising campaigns. Moving forward, Vibram has agreed not to make any claims that FiveFingers footwear is effective in strengthening muscles or preventing injury, unless it can prove it.
The settlement agreement does, however, leave the door open for personal injury claims resulting from the use of Vibram's shoes. The current settlement relates solely to the claims of false and misleading advertising and goes to great lengths to note that the class did not "releas[e] any claims of…personal injury."
Minimalist running still has its supporters in far-flung running clubs, yet according to some reports, sales of minimalist shoes are down this year and the trend is on the wane. Million-dollar settlement or not, if this is the case, it would appear that nobody wants to walk a mile in Vibram's shoes.