Bezdek v. Vibram USA

Case # 12-cv-10513
Case Name Bezdek v. Vibram USA
Jurisdiction US District Court for MA
Summary

This lawsuit is centered around claims that Vibram made in the marketing of its "FiveFingers"-branded footwear.  They claimed that the shoes approximated the barefoot running style, which promotes health benefits (including posture and foot health, muscle strength, and spine alignment) that traditional running shoes do not provide.  As a result of these marketing claims, consumers paid a premium for a product that they believed provided benefits that other footwear did not.  However, no evidence, beyond anecdotal evidence, exists to support those marketing claims.

Final Approval Date 01/21/2015
Result
  1. Final Approval granted.
  2. All objectors were found to lack standing, since they did not comply with the requirement to submit a proof of purchase.
  3. All objections were also found to be without merit.
  4. All three objectors appealed to the First Circuit.
  5. Objector Narkin submitted attempted to proceed in forma pauperis and submitted an appellant brief that was largely photocopied from an unrelated case.  His appeal was dismissed with prejudice as a sanction for his behavior.
  6. The objections of Cain and Ference were overruled by the Circuit Court, who affirmed the lower court's decision.
  7. Speaking broadly of objections, the First Circuit found that "district courts should be wary of possible efforts by settling parties to chill objections.  By monitoring class counsel and providing courts with crucial information on which to evaluate proposed settlements, meritorious objectos can be of immense help to a district court in evaluating the fairness of a settlement...[I]t is also important for district courts to screen out improper objections because objectors can, by holding up a settlement for the rest of the class, essentially extort a settlement of even unmeritorious objections (emphasis added, citations omitted)." (Appellate Court Decision, page 12, footnote)
Dismissal of Last Appeal 01/22/2016
Attachments Docket Report.pdf
Amended Class Action Complaint.pdf
Settlement Agreement.pdf
Fairness Hearing Transcript.pdf
Motion to Conduct Limited Discovery of Objectors.pdf
Memorandum and Order of Final Approval.pdf
Motion for Appeal Bond.pdf
Memorandum in Support of Motion for Appeal Bond.pdf
Appellate Court Decision.pdf
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Objection of Michael Narkin

Objectors Michael Narkin
Signers Michael Narkin
Attorneys
Summary
  1. Settlement does not bear any relationship to the damages suffered.
  2. Class Counsel is improperly using a protective order to prevent class members from reviewing the discovery files.
  3. Attorneys' fees are excessive.
  4. Cy pres provisions are inappropriate.

Mr. Narkin's objection notes that class counsel has been accused of unethical conduct in Rosales v. FitFlop, which is remarkable, since it was Mr. Narkin himself that made those accusations in Rosales.

As is his usual custom, Mr. Narkin attempted to avoid paying the filing fee by moving to proceed in forma pauperis.  The District Court did not rule on this issue, since the Narkin appeal was resolved (as discussed below).

Mr. Narkin filed a 13 page Appellant Brief, following the Court's order to do so or have his appeal stricken.  The First Circuit characterized the Brief as "essentially a photocopy of select portions of someone else's brief in an unrelated case, which Narkin adopted wholesale as his own, adding a few handwritten edits and scratching out some material.  Some of the photocopied pages are incompletely copied, or even presented sideways."  (see Order Striking Narkin Appeal, page 1)  As a sanction for his failure to comply with Court requirements, Mr. Narkin's appeal was dismissed with prejudice.  No further sanctions were handed down in this case.

Attachments Objection of Michael Narkin.pdf
Appeal of Objector Narkin.pdf
Narkin Motion to Proceed In Forma Pauperis.pdf
Opposition to Narkin Motion to Proceed In Forma Pauperis.pdf
Order to File Appellant Brief and Appendix.pdf
Narkin Appellant Brief.pdf
Motion to Strike Narkin Appeal Brief and Dismiss Appeal.pdf
Order Striking Narkin Appeal.pdf
Narkin Appeal Docket.pdf
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Objection of Madeline M. Cain

Objectors Madeline M. Cain
Signers Christopher T. Cain
Attorneys Christopher T. Cain
Summary
  1. There is no way for class members to determine the reasonableness of the settlement, or estimate their individual recovery.
    • Settlement notice claims that class members can reasonably expect to receive between $20 and $50 per pair.  However, the actual recovery by class members was $8.44.
  2. Attorneys' fees are excessive in relation to the amount of work they performed.
    • Clear sailing provisions may be improper.
  3. Injunctive relief is illusory.
  4. Requirements to object (i.e. submitting a proof of purchase to prove class membership) are unduly burdensome and designed to depress the number of objectors.
  5. Class representative awards are excessive.
Attachments Objection of Madeline Cain.pdf
Cain Response to Motion to Conduct Limited Discovery of Objectors.pdf
Supplemental Objection of Madeline Cain.pdf
Appeal of Objector Cain.pdf
Cain Opposition to Appeal Bond.pdf
Cain Appeal Docket.pdf
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Objection of Justin Ference

Objectors Justin Ference
Signers David C. Aisenberg
Attorneys David C. Aisenberg
Summary
  1. Insufficient information is provided to class members to evaluate the settlement.
  2. Fund available to class members is insufficient, given the number of pairs of FiveFingers sold.
  3. Injunctive relief is illusory.
  4. Attorneys' fees are excessive.
  5. Class representative awards are excessive.
  6. Cy pres provisions improperly direct unclaimed funds away from the class and to a third party.
  7. Release is overbroad.
Attachments Objection of Justin Ference.pdf
Appeal of Objector Ference.pdf
Ference Opposition to Appeal Bond.pdf
Ference Appeal Docket.pdf
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