Seeking to certify a nationwide class of consumers, a California resident has filed a putative class action in a Massachusetts federal court, claiming that the defendant’s toning athletic shoe line does not deliver the advertised benefits. Pashamova v. New Balance Athletic Shoe, Inc., No. 11-10001 (U.S. Dist. Ct., D. Mass., filed January 3, 2011). The named plaintiff alleges that independent scientific testing has shown that people do not increase either their exercise response or muscle activation as a result of wearing the shoes and thus do not derive any benefit in heart rate, kilocalories burned, oxygen consumed, or muscle tone when compared to those wearing normal athletic shoes. The plaintiff also claims that some users may experience injury from using the toning shoes, a risk the company allegedly does not disclose.

Claiming that consumers would not have paid higher prices for or would not have purchased the toning shoes, the plaintiff alleges untrue and misleading advertising, breach of express warranty and unjust enrichment. She seeks class certification, restitution and disgorgement, an order requiring the company to cease its wrongful conduct, attorney’s fees, and costs.