‘Barefoot’ Running-Shoe Settlement Affirmed

(CN) - Vibram can settle claims that it misrepresented the health benefits of FiveFinger shoes by compensating consumers to the tune of $8.44 per pair, the First Circuit ruled.

Vibram FiveFingers claims its "minimalist shoes," which cost $80 to $125, replicate the benefits of barefoot running.

Contoured to fit the shape of the foot with glovelike appendages for the toes, the shoes are made with a thin Vibram patented sole.

Consumers took to court, however, with claims that the shoes failed to perform as advertised.

"Defendants' health benefit claims are false and deceptive because FiveFingers are not proven to provide any of the health benefits beyond what conventional running shoes provide," a 31-page federal complaint alleged.

In addition to questioning the scientific evidence in support of FiveFingers, the class claimed that the so-called barefoot shoes could actually increase the risk of injury.

A University of Wisconsin study found that runners often have to change their gait when switching to FiveFingers running shoes, and that adapting to the shoes may involve an "injury-fraught regimen," the complaint alleged.

After extensive written discovery, but before the plaintiffs could move for class certification, the parties to the Massachusetts action reached a settlement.

The agreement established a $3.75 million fund to provide consumer claimants with an expected average refund of $20 to $50 per pair of shoes.

These estimates took a hit, however, when the fund received a higher-than expected number of claims - 154,927 claims for 279,570 pairs of FiveFingers shoes.

The high number of claims resulted in a far lower estimated refund for consumers - approximately $8.44 per pair of shoes.

Three objectors challenged the settlement, but a federal judge affirmed the deal despite the disparity between the estimated and actual refund for potential class members.

The First Circuit affirmed Thursday from Boston.

"Contrary to the objectors' claims, there was no misrepresentation in the notices sent to class members," Judge Sandra Lynch wrote for the three-judge panel. "The summary settlement notice and the postcard notice both contained explicit language that recovery could 'decrease depending on various factors, including the number of valid claims.' Although the class notice did not contain such language, it did not misrepresent the situation."

Given the uncertainty of success at trial - especially with a class-certification battle still to go - the lower court reasonably decided that $8.44 per pair of shoes was a fair refund, the panel said.

"The fact that a better deal for class members is imaginable does not mean that such a deal would have been attainable in these negotiations, or that the deal that was actually obtained is not within the range of reasonable outcomes," Lynch concluded.

The panel also affirmed the terms of the agreement providing that class counsel may apply for fees that do not exceed 25 percent of the settlement fund.

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