Lawsuit Against Vibram Survives Motion to Dismiss

Discussion in 'Front Page News' started by Ahcuah, Feb 24, 2013.

  1. Ahcuah Barefooters

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    Lawsuit Against Vibram Survives Motion to Dismiss
    and
    DeFalco v. Vibram
    By Bob Neinast, a.k.a., Ahcuah

    We’ve been following the lawsuits against Vibrams for making unsubstantiated claims (including claims about the benefits of barefoot running). There was a pending motion to dismiss before the court, and that motion was denied on Wednesday.

    So, here’s what’s going on.

    First, a bit of a recap. The first suit was Bezdek v. Vibram, in the District Court of Massachusetts. I wrote a bit about it here, in Update on the Vibram Lawsuit. That update was actually about a second lawsuit against Vibram (filed by the same law firm, but in California), Safavi v. Vibram, and I wrote about it in Vibrams Sued. That suit was put on hold waiting for the result of the Bezdek lawsuit.

    Last we heard, in the Bezdek case, Vibram had filed a Motion to Dismiss for Failure to State a Claim. I wrote about that in What’s Up With The Toe-Shoe Lawsuits?. The thing about such a motion is that it tries to get the court to agree that, even if every claim in the plaintiff’s complaint is true, the plaintiff still cannot win. It’s a pretty high standard, and such motions are not granted very often.

    And in this case, it wasn’t. Now, don’t forget that Bezdek is basically suing under fraud statutes, saying that Vibram made unsubstantiated claims about the Vibrams. Vibram basically said that running barefoot is better, and that, as the court put it in its opinion denying the motion, “Running in defendants’ FiveFingers shoes is meant to mimic barefoot running, while also affording some protection against the elements.”

    A lot of the case will probably hinge on whether barefoot running really is better, and whether they can prove it (and maybe whether that was the state of the science at the time of Vibram’s claims). Yes, we have a lot of anecdotal experience that it is, but will that be sufficient in a court of law?
    Here’s what the court’s opinion says (I’ve put the full opinion at the end of this posting):

    To read more on this, please visit: http://ahcuah.wordpress.com/2013/02/22/lawsuit-against-vibram-survives-motion-to-dismiss/

    For the follow-up, DeFalco v. Vibram, please visit: http://ahcuah.wordpress.com/2013/02/23/defalco-v-vibram/
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  2. stjohnthegambler Barefooters
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    So can I sue shoe companies for my plantar fasciitis? Aren't they making just as un-provable claims about the 'benifits' of wearing shoes while running? I joke, but...would be too bad if this suit wins. Sounds like a grab for money, and may send a 'chill' through the minimalist footwear world.

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  3. <3 2 run Barefooters

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    I agree stjohnthegambler. My shin splints disagree with all the claims the shoe companies make about their "stability" & "support". I feel so much better running without shoes or in my Vibrams than I ever did with running shoes, & no more shin splints! Besides it's just part of their marketing plan. Nobody sues the massage therapist for claiming to be the best, nor are they required to prove it.
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  4. Backfixer Barefooters

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    Regarding whether barefoot is better or not and being sued for it saying they are false claims says quite a bit about our culture. Nobody seems to take personal responsibility for themselves and if a company makes a product that for some rings true and for others does not, as in barefoot running, the fact that you can sue anyone for anything in this country is an indightment of our legal system. We have too many lawyers and the profession of law has been perverted by legal theories. I remember how sketchers got sued for their shape up shoes ( a knockoff of the mbt concept) that was deemed as false advertizing.

    Who makes the money in these cases? Usually those in the class get a coupon for future merchandise or a check for a couple of dollars while the attorneys enrich themselves by suing a company that was too successful, and of course, attorneys follow the money. This is not to say all attorneys are bad, but the reason we have windows that have signs that tell us that you will die if you jump out of them has to do with some legal theory and this adds costs to everything we purchase.

    Regarding their shoes, some people enjoy and prosper running barefoot and the concept has a different gait which in certain people works better than shod, but on the other hand, others run shod and do perfectly fine with it because of their body mechanics. On the other hand, suing them can limit your choice and that I have a problem with since many people are choosing to run barefoot with their shoes and some switch back, others do not. Does this mean anything other than personal preference?

    My take is that they will have lighter pockets and may even settle this at the advice of their council due to the bad PR. It is just a money grab.

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  5. Barefoot TJ Administrator
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    I compare a lawsuit like this to those against the cigarette companies. Shoes can damage the feet just like cigarette smoke can damage your health. I think shoes should come with warnings, whether they are minshoes or traditional-modern shoes.

    Edit: I must add that I believe minshoes are much healthier in so many respects than traditional boat anchors. I do think there should be warnings on minshoes (especially on boat anchors) about the dangers of too much too soon in transitioning from boat anchors to minshoes though. There. That's my story, and I'm sticking to it.

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  6. stjohnthegambler Barefooters
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    I hope Vibram chooses not to settle. Might actually make great publicity, if/when they show in court how bad typical running shoes are for people.

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  7. Bare Lee Chapter Presidents
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    I thought all advertising involved lying to some extent. At least, that's my working hypothesis whenever I enter the commercial world. But like others have said, it seems like the first people to be hauled in for fraud are the folks responsible for all the stability, over-pronating, and cushioning nonsense. Even better, I would like to sue the federal reserve for their massive fraud and collusion with the FIRE industries. It should be easy for them to settle out of court, they get to print money whenever they want, don't they?

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  8. Barefoot TJ Administrator
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    Here's a law firm's dissection of the case:

    Mass. Deceptive Advertising Decision re: “barefoot” running shoes

    http://www.massachusettspersonalinj...rtising-decision-re-“barefoot”-running-shoes/

    Again, if someone can sue (and possibly win...pending) a minshoe company, then I think all the big brand names should be sued too! They are making "deceptive" and "false" claims about their product without science to back it up too! DAMMIT!

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  9. Ahcuah Barefooters

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    But do they really? Most of what I've seen simply relies on the assumptions so many make about the efficacy of shoes, but never make any sort of the scientific-type claims that Vibram does. For instance, here's what I see on an Adidas page, for their Boost shoe:

    Only the second bullet is a bit dubious. But, for instance, the third one is probably right about having "flexible upper support". We know that "support" is injurious to muscle strength, but they don't have to say anything one way or the other about that; they just say that they provide it. Ditto for "stability" for the fourth bullet.
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  10. Ahcuah Barefooters

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  11. stjohnthegambler Barefooters
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    Wow, it's not even about physical injury, just "economic loss." Poor woman, deceived into buying a pair of $100 VFFs. If only she'd known the truth, she never would have bought them!

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  12. Barefoot TJ Administrator
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    I'm not talking about Vibram in the post above. I'm talking about the boat anchor companies.

    Those bullet points you indicated are enough to sue, if you ask me. They have no science to prove it. And there's other companies out there making claims that their shoe is THE shoe to buy for BS reasons, and they have no science behind their claims either. They've been feeding this sh!t to us for years and years, that we need THEIR shoes to "save" us, to "protect" us, yet they have no science to back it up. If Vibram can be sued for making unsubstantiated claims, then the boat anchor companies should have been sued first.

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  13. Ahcuah Barefooters

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    Yes, but the boat anchors are not saying anything about the science (or what they do say does have science or technology; like that they provide "support"). Vibram actually made scientific claims that were unsupported by the science. If they'd just said, "Folks have reported . . ." or similar folderol things may have been different.
  14. Barefoot TJ Administrator
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    Talking about the boat anchor companies, besides the fact that they have all along brain-washed the public into believing the health benefits of their products, that we need cushion, support, and a snug fit (that ruins our feet) here's something sue-able (The second statement sounds a lot like the same "spouting" Vibram did.)

    NIKE:

    Experience a more barefoot-like feel with the Free 3.0 midsole

    They can say barefoot-like all they want, and there's nothing barefoot-like about it, and there's no science that can ever prove that. Sue-able.

    The Nike Free Run+ 2 iD Running Shoe delivers the natural-motion benefits of running barefoot with a super-flexible yet supportive midsole and an ultra-light upper. The minimalist design helps strengthen the foot and ankle by working core muscles that aren’t activated in conventional running shoes, while multiple color options let you boast personal style.

    If a marshmallow can strengthen the foot and ankle, then I know that a minshoe can too and much better. I would need science to have the marshmallow's influence proven to me, but I would use common-sense to know that a VFF doesn't need proof.

    And wait a minute, are they saying their other conventional running shoes don't strengthen the foot and ankle? Well, if they don't strengthen the foot and ankle, they must be atrophying the foot and ankle, and right there would be a sue-able offense.

    This is the kind of stuff I am talking about.

    I only ever wore the big boat anchors in the past, and purchased the motion control, stability, cushioned, ... etc., junk because all my life I have been bombarded with advertisements from the big boat anchor companies telling me I needed their product or I was going to damage my feet. Well, their product damaged my feet.

    EDIT: I found this in the lawsuit, Safavi vs. Vibram, class-action pending:

    53. As the APMA Article illustrates, Defendants’ representation that running in FiveFingers increases strength in feet and lower legs also does not have sufficient support. The APMA Article states that “[e]vidence is conflicting on the actual strengthening potential of the barefoot condition, and even if the barefoot condition led to increased muscular strength, the claim that this results in reduced injuries or improved performance has not been proved scientifically.” APMA Article at 240.

    From the quote under 55. The name “barefoot shoes” is a contradiction in terms. A shoe condition is not a barefoot condition. The discussed “barefoot shoes” typically take one aspect of barefoot and implement it into a shoe. Some of these aspects are close to barefoot, some need a little stretch. To assume that these shoes correspond to barefoot running or moving is not appropriate and the name “barefoot shoes” may well be more a marketing strategy than a functional name. {Note 36: Nigg Article at 78.}

    About 53.: It claims Vibram is wrong in stating that their product "strengthens the feet and lower legs." This is exactly what Nike Free is advertising today!

    About 55.: They're not being sued over the term "barefoot shoes," but Nike, Adidas, and others make the same claim. Until everyone starts using the term "barefoot-like or [better] barefoot-style shoes," this term could possibly open up another lawsuit.

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  15. Barefoot TJ Administrator
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    And I know you are a barefooter and get all this, Ahcuah. I'm just venting. :sorry:

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  16. Ahcuah Barefooters

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    Heh. I'm afraid I go on and on because I figure I did a lousy job of explaining the first time.

    Regarding your Nike Frees and the like, I never thought of them a boat anchors. But yes, they are probably as sue-able as Vibram.

    The distinction I was trying to make was, for boat anchors, the difference between "No other shoe provides better support," and "Our shoe provides the support that feet need." The former is unsue-able (in my opinion), even though it rests on the assumption that feet need support. The latter might be sue-able (there really are no studies that support that, as you have noted), but as we know, we're at the point where the shod condition is considered the default.

    Hope that clears up what I was trying to say. And yeah, a lot of people have ruined feet that can be laid directly at the "feet" of the shoe companies and their tobacco-like advertising.
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  17. Barefoot TJ Administrator
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    I really hope Vibram wins though. I do feel they have a healthy product. It's us, the consumers, who need to grow the hell up and learn how to re-adapt our feet to the way they were meant to be, and do so at a slow pace. C'mon people! Use common sense!

    What really p!sses me off is that no one talks about all the millions and millions of stress fractures that occur while wearing boat anchors! No. All they want to talk about is all the stress fractures that take place while running in Vibrams but blaming barefoot for it, when they weren't even barefoot!

    On top of that, these boat anchors have caused our feet to weaken, to atrophy, and because of that, we are more prone to having stress fractures should we try to run in something truly minimal like the Vibrams or huaraches. It's ridiculous! None of the pros are even commenting on this fact.

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  18. Barefoot TJ Administrator
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    BTW, do you have the first lawsuit's filing? I see where you have the motion to dismiss (a.k.a. ?) posted, but I didn't see the initial lawsuit or the amendment to it, which must be funnier than the initial one.

    We really should have a panel discussion with call-ins on a webinar, Ahcuah. You and I can host it, and we can take callers who have read the material and comment on it. It would be hysterical! I just love this lawsuit. If you all haven't read the material, you really need to. It's so funny how the complainant changes her stance.

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  19. Ahcuah Barefooters

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    Yes, I'll send it to you via email. It's not much different than the other ones that I did post (which is why I didn't bother before).
  20. happysongbird Chapter Presidents
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    Since when did people begin to think advertising was supposed to be some holy scripture? You listen to the pitch and do your own evaluation. duh.

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