Does the Class-Action Lawsuit Against Vibram/FiveFingers Have Any Merit?

Last week, Berman DeValerio, one of the country’s premier class action law firms focused on business litigation, has filed a class-action lawsuit against Vibram and Vibram FiveFingers in the U.S. District Court of Massachusetts. The complaint seeks a jury trial on the grounds that Vibram is making “false” health claims about its product. These “deceptive” claims include the following: “that the barefoot  footwear concept  improves posture and foot health, reduces injury risk, strengthens muscles in feet and lower legs, and promotes spine alignment.”

But first a few things. Vibram isn’t the first shoe company to be in the legal hot seat. In early March, a Baltimore product liability lawyer filed a  Skechers ‘Shape-Ups’ Class-Action Lawsuit that “seeks money damages for consumers who paid a “premium price” for Skechers “Shape-Ups” based on TV, print and Internet ads that touted the toning shoes’ health benefits.” The complaint  further states that “Skechers is currently being investigated for its toning shoes marketing claims” — it would provide health benefits ‘without setting foot in a gym’–by the Federal Trade Commission. In September, the FTC reached a $25 million settlement with Reebok for making similar fitness claims about its own brand of toning shoes.”

Sales of Vibram FiveFingers have been growing at an annual rate of 300 percent, and with total sales somewhere around $70 million. So it’s no surprise that it caught the attention of a class-action legal outfit which has scored big wins taking on companies like Bear Stearns, BP,  De Beers, and Oracle.  Often, these kinds of cases never make it trial, and are settled out of court for a large sum. Vibram is being sued for $5 million.

Ironically, Vibram has been keeping its own lawyers busy for the past several years. Going after VFF counterfeiters  was a big headache dating back to the summer of 2010.  Last year, Vibram filed its own patent infringement  lawsuit against Fila for its “Skeletoes.”

The new class-action suit will undoubtedly keep Vibram’s lawyers busy. The billable hours can reach hundreds of thousands of dollars.

Should runners even care? Even if Vibram loses, or settles before trial– there is no guarantee that the suit will even be admitted by the U.S. District Court of Massachusetts –the claims raised in the suit touch upon issues that have been haunting VFF in the media which loves highlighting anecdotal accounts that the toe-finger shoes are responsible for an increase in foot injuries.

To shed some light on the potential merit of the class-action suit, the Natural Running Center has reached out to Steven Sashen, founder of Invisible Shoes.  As a barefoot-lifestyle footwear entrepreneur, he has a dog in the fight– but his insights are worth reflecting upon. The following essay originally appeared on Invisible Shoes’ blog.

— Bill Katovsky

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Does the Class-Action Lawsuit Against Vibram/FiveFingers Have Any Merit?

by Steven Sashen

Well, I’m not a lawyer, and I don’t play one on TV. But I read the case (posted here), and have some thoughts (and I’m looking forward to yours).My first few thoughts, having nothing to do with the merits of the case, are:

a) I like Vibram. Even though the products don’t work for me, and as you know I’ve teased them (about smell and the primate styling), if it weren’t for them, I wouldn’t be here. The popularity of FiveFingers and their marketing in the last few years has lifted the tide of the entire barefoot/minimalist footwear market, and I’ve been a beneficiary. A year and a half ago, I said to Vibram CEO Tony Post, “Thanks for doing the heavy lifting!”

b) This case could be the best thing that happens to the barefoot/minimalist shoe world, regardless of the outcome. How? Because it could help clear up the way language is used in marketing minimalist products, change unrealistic expectations of certain customers, and inspire even more research into the benefits (or lack thereof) of various “barefoot inspired” products.

It’s no secret that I’ve had my hackles raised when any number of the big shoe companies pull out a “lightweight” sneaker (6-12 ounces) with an inch of heel lift, massive toe spring, and a healthy dose of foam padding, and claimed it was “just like barefoot.” And here I sit with a 3.4 ounce, 4mm thick piece of flexible rubber, thinking, “Uh… really?”

Perhaps this case, or merely the conversation around it, will add a much-needed dose of clarity.

Quick aside: Let me play Uri Geller and give you my prediction about the outcome of this case: a semi-expensive settlement (which, for all I know is the reason the suit was filed in the first place).

Okay, onto the case.

In essence this case is similar to those against Skechers Shape-ups (ongoing) and Reebok “toning shoes” (Reebok settled for $25 million), where the plaintiffs argued that there was no scientific basis for certain claims that the shoe companies were making, that they sometimes inaccurately stated there was such a scientific basis, and that they enticed customers to pay a premium for the product based on the idea that they (the customers) would get various claimed benefits.

This suit describes how Vibram has claimed that running in VFFs will provide the following benefits:

• Improved foot health
• Reduced risk of injury
• Strengthened muscles in feet and lower legs
• Stimulated neural function improving balance, agility and range of motion
• Improved spine alignment
• Improved posture
• Reduced lower back pain
• Improved proprioception and body awareness

Here as well, the plaintiffs say there is no scientific backing for these claims; that claims there is are untrue; that if any of the claims are true there’s no evidence that VFFs do these any better than regular running shoes and, therefore; these claims are fraudulent and deceptive and that Vibram has profited by enticing customers to pay a premium price to receive benefits that Vibram cannot reliably deliver.

The case adds that Vibram’s fundamental claim — that VFFs simulate being barefoot — has no proof to support it, either. In fact, the action quotes the American Council on Exercise, study which showed that runners in Vibrams pronate more than when they’re barefoot as an example of how that claim is false.

Now, I can guess what many of you are thinking: How is this different than my box of Cheerios, that says “supports colon health” or my vitamin that says “promotes strong bones”?

Good question.

In the food and supplement world, those kinds of claims are called “structure/function claims.” The FDA uses very specific language to tell companies how to use very non-specific language about their products. The law is designed, at one level, to prevent supplement and food companies from making “drug-like” claims, like “cures cancer AND baldness.” On the other hand, it allows companies to make it sound like taking 3 Mega-Ultra-Men’s Formula capsules every day will make you healthy, wealthy, and able to bend steel with your mind.

I think it’s a poorly designed law (sponsored by congress-people who, wouldn’t you know it, come from states with a lot of nutritional supplement companies), but it is a law and it does have specific guidelines and rules.

I don’t know if there’s something similar for footwear. But few would argue that if you make a specific claim, you have to be able to back it up.

Looking back at the claims Vibram makes, I’m sure you can see that some of these are testable, and others have a “keeps your colon happy” flavor. Some have a bit of both: Stimulates Neural Function… a bit vague, but no real problem. “Improves balance and agility”… well that’s testable and I’m not sure there’s an independent study to back that up.

“Reduced risk of injury” and “strengthened muscles” seem testable. “Improve foot health” and “promote spine alignment” are more like what you see on the bottle of every supplement at Whole Foods.

I’ll admit that I take issue with one claim Vibram makes, mentioned elsewhere in the complaint: “No footwear comes closer to recreating this natural sensation than Vibram FiveFingers.” Even though I’m 100% convinced that Invisible Shoes give a better approximation of barefoot than anything else out there, including VFFs, I don’t have the science to prove my case and so I can’t state it as a fact.

I’ll also admit that it’s tricky to talk about any product without getting close to the line between something obvious-but-vague, like “can align your spine” (clearly, going to a zero-drop shoe changes your posture), and something scientifically testable like “strengthens your feet.” It gets especially hard when you have hundreds of testimonials from people talking about strengthening their feet, improving their posture, running pain-free, developing arches, and dozens of other reports that are anecdotal and not scientific.

Interestingly, while the plaintiffs argue that there are no studies to support Vibram’s claims, they present no science to dispute them either. The suit spends many pages saying, basically, “Vibrams cause injuries,” yet they offer none of the  double-blind, placebo-controlled studies they expect of Vibram to prove so. Instead, they rely on the same anecdotal “evidence” that they criticize Vibram for using. They quote a story in which a podiatrist says that 85% of her patients get injured trying to transition to minimalist shoes.

I’ve taken the logic of those types of claims to task before, but here’s the Readers Digest version:

a)    I’ll pay $100 if the podiatrist has actually kept statistics to back up the 85% claim

b)    If she’s discussing existing patients, we’re talking about people who, by definition, already had foot problems before they decided to try something minimalist

c)    She will never see patients, or non-patients, who make the transition without any need for medical care, so even if the 85% number were true, it has no relationship to the percentage of people, in total, who have problems

d)    It does not separate out people who went barefoot, in VFFs, in Nike Frees or any other of the myriad footwear options

e)    It does not account for whether the patients simply overtrained

f)      I’ll pay another $100 if she checked to see if form was the problem, not footwear

g)    How soon we forget that doctors made these same claims, and errors, 40 years ago when padded running shoes became the rage

h)    And, most importantly, since surveys have shown that 80% of marathoners get injured every year… the statistic is totally meaningless!

The claim also takes Vibram to task for charging a premium price based on the idea that customers are enticed to pay more to get the promised benefits. And while VFFs are undeniably pricey, they’re no more extravagantly priced than many high-performance shoes, or any motion-stabilizing shoes (seriously, $275 for the New Balance 2040?!).

While the lawsuit criticizes Vibram for saying, without any science to back it up, that Fivefingers are essentially the same as barefoot, some of the arguments of this case require accepting the position that VFFs are the same as barefoot. The claim quotes the American Podiatric Medical Association which says there isn’t enough research to know what the long- and short-term effects of barefoot running are. Okay, but since your argument is that VFFs aren’t barefoot, then some comment about whether barefoot running is good or bad is moot.

When I first read the claim, one thing stuck out in my mind above all others. The plaintiffs claim that Vibram created FiveFingers in 2006 to capitalize on the barefoot running trend. History wasn’t my best subject in high school, but I know that:

a)    Vibram didn’t design the FiveFingers as a running shoe

b)    The barefoot running boom started in 2009

Not a big point, I’ll admit, but if they missed something as simple as that, it gives me pause.

Another thought that keeps popping up:

Why Vibram? Some of the comments on Facebook and Twitter suggest that this case is completely without merit. Given everything above, I disagree. But, if you’ve been around the minimalist world for any amount of time, you’ll know there are a lot of other companies who’ve made some or all of the same claims that are described in the suit.

The question “Why Vibram?” also prompts us to look at the bigger picture. And by “bigger,” I mean, “the rest of the running shoe world,” not just the minimalist “barefoot” shoe world.

Leaving out the “toning shoe” lawsuits, we know that running shoe companies have been making many of these same claims for decades without a hitch. As Phil Maffetone pointed out here, running shoe companies aren’t required to demonstrate the same level of safety as ice-packs. In fact, unlike Vibram where there aren’t studies proving or disproving whether they “reduce injuries”, studies have existed for 60 years showing how padded running shoes can be injurious.

While Vibram may have made claims without proof, it seems that “traditional running shoe” companies (I put it in quotes to highlight how funny it is that many people call them “traditional” when they’ve only been around for 40 years) may have been engaged in behavior similar to the tobacco companies: selling a product that they know causes problems.

Why do they get a free ride?

I wonder if this is a situation like when a bunch of cars are all speeding and only one gets pulled over… or is it a foreshadowing of future events where the whole industry – minimalist and non-minimalist — is subject to actual scrutiny and as a result, is held to a higher advertising standard than they have been so far.

Some say this looks like a case that’s more about 5 law firms making money than it is about whether Vibram has scientific proof of their claims. I don’t know. Frankly, if it were, I’m surprised the suit is only asking for $5,000,000. Even if money is the motivator that doesn’t mean there’s no “there” there in some of the plaintiffs arguments.

I know that there are many companies much larger than mine who are waiting to see how this plays out with the anticipation a runner feels in between “On your marks!” and “Go!” Or maybe with the sphincter tightening that comes with opening your front door and hearing, “We’re from 60 Minutes and we’d like to talk to you.”