Millions at stake in suit over shoe claims

The shoe fit, so Barbara Glaberson wore it.

But the shoes, she said, didn't make her fit, so she tossed them aside - and instead filed a lawsuit against the manufacturer, FitFlop USA L.L.C.

If that lawsuit, filed last week in federal court in Camden, goes the way similar class-action suits against other shoe manufacturers have, FitFlop USA could find itself paying tens of millions of dollars.

And Glaberson, who bought the shoes at the Cherry Hill Mall, may get a mere $50 of it - although not if FitFlop's lawyers prevail.

They are "vigorously defending" the New York company and founder Marcia Diane Kilgore against the allegations of false advertising that form the basis of the suit. The suit said that the company falsely claims its shoes tone and tighten leg and buttocks muscles.

So what kind of lawsuit gets filed that, if successful, pays the plaintiff only a pittance?

The kind of lawsuit, Glaberson's lawyers say, that protects the sanctity of the marketplace, ensuring that consumers can shop with confidence, relying on the truthfulness of the advertising they see.

"And that's so important, not just in our economy, but for the world's economy," said one of Glaberson's attorneys, Timothy G. Blood, a partner in Blood, Hurst & O'Reardon L.L.P. in California.

"It's so rare that consumers have a way of expressing their views and standing up to these incredible powerful multinational corporations."

The kind of lawsuit, FitFlop's lawyer counters, that is an opportunistic money grab for the plaintiff's bar. "These are lawyer-driven lawsuits," said William S. Ohlemeyer, a partner working in Boies, Schiller & Flexner L.L.P.'s New York office.

"The lawyer develops a theory and then tries to find plaintiffs to serve as class members," Ohlemeyer said.

"It's expensive and time-consuming for businesses who have to defend themselves against these suits."

But let's get back to the shoes.

Specifically, a pair of bronze Walkstar sandals, purchased for $60 in the spring of 2010 at Nordstrom's in the Cherry Hill Mall.

"Barbara works hard to take good care of herself," Blood said about his client, 70, who lives in Ventnor.

"She is in very good shape and bought them to improve her fitness," he said. "She thought it would be great to get more out of just walking around. They did nothing for her, and she felt like she had been ripped off."

The lawsuit makes the point that Glaberson is not claiming that the shoes injured her. Instead, the case relies strictly on New Jersey's Consumer Fraud Act and its provisions about deceptive business practices, including misrepresentation.

FitFlop advertisements describe the shoes as "the flip flop with the gym built in."

One says FitFlop sandal wearers "have also reported relief from plantar fasciitis, heel spurs, chronic back pain, sciatica," while another online ad said the shoes "help increase leg and bottom muscle activity."

Ohlemeyer said that most of FitFlop's customers never even saw the advertisements; they buy the shoes, as he has, because they are comfortable.

To get an idea of the stakes in this lawsuit, consider that Ohlemeyer's firm has been consistently tapped for many high-profile cases, among them Bush v. Gore, which determined the outcome of the 2000 presidential election. (The firm represented Al Gore.)

They face Blood and his partners, who, working with the Federal Trade Commission, have pushed a $25 million settlement in a lawsuit involving Reebok International Ltd.'s EasyTone shoes.

"The FTC wants national advertisers to understand that they must exercise some responsibility and ensure that their claims for fitness gear are supported by sound science," David Vladeck, then director of the FTC's Bureau of Consumer Protection, said in announcing the settlement Sept. 28, 2011.

The lawyers, Blood said, got about $3.5 million, in that case. Average payout was about $50 per person.

A $40 million preliminary settlement deal with Skechers, on similar issues, was negotiated in March and is expected to be completed soon, Blood said.

In February 2010, his firm, working with other law firms, persuaded Dannon Co. Inc. to pay $45 million to settle a case involving health claims for the company's Activia and DanActive yogurt brands.

"That was one of the first advertising class-action cases that gained popularity," said Angelo A. Stio 3d, a partner in Pepper Hamilton L.L.P., who works in the firm's Princeton office and specializes in defending similar class-action suits.

"This case is on the heels of that [Dannon] model," he said.

Stio said that the majority of these cases turn on two points - whether there is a true class of plaintiffs who are similar enough, and then on the merits of the facts.

Rarely do the cases get heard by a judge or a jury. Mostly, he said, they are resolved, either by being dismissed, withdrawn, or settled.

"For most defendants," he said, deciding whether to settle "is a business decision."

Stio is not involved in the FitFlop case, but a New Jersey lawyer, James C. Shah, of Collingswood, is. Shah, cocounsel with Blood, declined to comment on the case, as did Glaberson.

The ultimate verdict on this class of shoes may have already come from the market.

All that type of shoe - whether they were FitFlops, Skechers, or Reeboks - "was one of the hot items" over Christmas in 2010, said Marshal Cohen, chief industry analyst with NPD Group Inc., a well-known market research firm based in Port Washington, N.Y.

That year, he said, the category reported $700 million in sales, the next year $300 million. Last year, "that dropped to $70 million."

"It went from one of the fastest-growing categories in athletic shoes," Cohen said.

"The believability factor has disappeared," he said. "The popularity has died off."