Antitrust Law Daily Wrap Up, CONSUMER PROTECTION—DMass: Vibram May Be Liable For Misrepresenting Health Benefits of Its Shoes, (Feb 21, 2013)

By Jody Coultas, J.D.

Vibram USA Inc. may be liable for false and misleading marketing of its FiveFinger shoes under the Florida Deceptive and Unfair Trade Practices Act (DUTPA) and Massachusetts Consumer Protection Act (CPA) based on statements concerning the health benefits of the shoes, according to the federal district court in Boston (Bezdek v. Vibram USA Inc., February 19, 2013, Woodlock, D.).

Vibram’s FiveFingers shoes mimic barefoot running, while providing some protection against the elements. A purchaser claimed that Vibram’s advertising campaign was false and misleading because it misrepresented the health benefits of its shoes and that such benefits were scientifically proved in violation of the DUTPA and CPA.

The purchaser’s allegations of falsity and deception were sufficient to state a claim, according to the court. In the complaint, the purchaser specifically identified several allegedly misleading statements as to the health benefits of wearing FiveFingers and specific dates on which these statements were made. Which statements influenced the purchaser’s decision was irrelevant because the purchaser was not required to prove actual reliance.

A price premium injury was cognizable under the CPA and DUTPA, and the purchaser adequately pled such injury, according to the court. The purchaser’s alleged injury was economic loss from the fact that she would not have purchased FiveFingers if she had known the advertised health benefits were untrue. A review of Massachusetts and Florida law found that jurisdictions were willing to recognize price premium injury by current owners of a product whose value was artificially inflated by a deceptive act or practice at the time of purchase. The court declined to find the theory of injury too speculative but noted that it may be too difficult to determine the market value FiveFingers shoes have without their purported health benefits.

The case is No. 12-10513-DPW

Attorneys: Janine L. Pollack (Milberg LLP) for Valerie Bezdek. Andrew C Ryan (Cantor Colburn LLP) for Vibram USA Inc.

Companies: Vibram USA Inc.

Cases: ConsumerProtection Advertising StateUnfairTradePractices MassachusettsNews