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The Post-Scalia Class Action Landscape

First Circuit Affirms Barefoot Running Shoes Class Settlement

By Alexander M. Smith

On December 31, 2015, the First Circuit upheld a class action settlement between Vibram USA, Inc. and purchasers of Vibram FiveFingers footwear. The plaintiffs brought claims on behalf of a putative nationwide class under the consumer protection laws of Massachusetts, including Mass. Gen. Law. ch. 93A and 266, as well as claims on behalf of a putative Florida subclass under the Florida Deceptive and Unfair Trade Practices Act, F.S.A. §§ 501.201 et seq. The lawsuit alleged that Vibram represented that its FiveFingers shoes (which were advertised to facilitate “barefoot running”) would improve body awareness, reduce lower back pain and injury, and improve foot health, allegedly without sufficient scientific studies to substantiate these claims. The parties then settled, and the District of Massachusetts (Woodlock, J.) approved the settlement after a hearing. Pursuant to the settlement, class members received a settlement notice stating that the estimated recovery would be approximately $20 to $50 per pair. Due to a “higher-than-expected” number of claims, class members received only approximately $8.44 per pair of shoes, prompting a group of objectors to appeal. Although the court acknowledged the disparity between the estimated and the actual payment, it nonetheless held that this discrepancy did not void the settlement and that a refund of $8.44 was a fair settlement amount given the uncertainty plaintiffs would face at trial. It likewise dismissed the objectors’ other concerns, including the imposition of a proof-of-purchase requirement on objectors (but not on class members), the form of injunctive relief, the inclusion of a clear-sailing provision, and the total amount of attorney’s fees.

Bezdek v. Vibram USA, Inc., 809 F.3d 78 (1st Cir. 2015).