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Guest Post Regarding Vibram Footwear Litigation

The following is a great guest post by Maryland Personal Injury Attorney Ronald Miller of Miller & Zois regarding a recent Massachusetts case involving Virbram footwear.  Here is this incisive post:

Critics of our legal system often complain that too many people – and too many lawyers – pursue frivolous lawsuits that do nothing but enrich plaintiffs. A recent Massachusetts case against Vibram, Bezdek v. Vibram USA, underscores this problem.

In this case, the maker of a “barefoot” running shoe, may feel like one of those cases at first glance. Upon further inspection I think the case raises a number of important legal issues that are meant to protect consumers and require ethical marketing from the manufacturers of consumer products.

Vibram produces, markets, and distributes “barefoot” running shoes. Like a number of other companies that have embraced the natural running trend from the past few years, Vibram promotes its “FiveFingers” shoe as a healthy and superior alternative to traditional running shoes. Vibram’s marketing materials claim that using the shoe would reduce injuries, improve posture, strengthen the body, and promote overall wellness. Vibram’s website also touted the scientific studies that support the company’s claims. These guarantees were working as the company had been experiencing 300% annual growth for the past five years.

In 2011 the plaintiff purchased the “Bikilas” model shoe for $104.90 from Vibram’s website. Plaintiff later sued Vibram claiming that the company used a false and misleading advertising campaign that misrepresented both the health benefits of the shoe line and the extent to which scientific research supports the company’s health claims. In support of her claim, plaintiff cited the fact that there is little scientific evidence on the subject and that numerous professional organizations have stated any marketing claims should be qualified as anecdotal.
Plaintiff argued that had the company been honest about the unreliable support in favor of the product she would not have purchased the FiveFingers shoe. Vibram responded to plaintiff’s complaint with a Motion to Dismiss for failure to state a claim. To support an actionable legal claim, plaintiff must show that a deceptive act or practice by Virbram caused her an injury or loss. In other words, the plaintiff must prove that she suffered actual damages and that those damages were the result of a deceptive act or unfair practice.

The Massachusetts district court found that the plaintiff had sufficiently proved Vibram engaged in misleading advertising because the health benefits of their product had not been substantiated. The court noted that Vibram had actively engaged the research community in search of studies that supported the barefoot running movement. Because Vibram had been active in this search, the court found that it was unlikely that Vibram was ignorant of the uncertain benefits of their product.
The plaintiff’s complaint did not allege physical injury, rather it claimed economic loss. Plaintiff’s argument is that deceptive marketing practices caused her to purchase a product she otherwise would not have bought. Under this “price premium” theory, the plaintiff’s loss is the difference between the shoes either having or not having the represented health benefits. For example, if the value of the shoes with the health benefit is $104.90 and the value of the shoes without the health benefit is $20, the plaintiff is entitled to the difference as economic damages. The district court judge agreed with the plaintiff and recognized the “price premium” theory. The litigation is still pending in the court and is scheduled for a hearing on defendant’s motion on February 28, 2013.

Again, while it might seem that this is a stupid lawsuit about a $100 purchase, this is also a lawsuit about deceptive advertising. The same law that prohibits unfair marketing with shoes does the same for car seats, prescription drugs, medical devices, or any number of critical products. It is fair for all manufacturers to be held responsible for conducting truthful marketing campaigns.
You can find the Massachusetts ' court's opinion in Bezdek v. Vibram USA here.

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