United States Court of Appeals 

For the First Circuit 

Nos. 15-1207 

 15-1208 

VALERIE BEZDEK, individually and on 

behalf of all others similarly situated, 

Plaintiff, Appellee, 

v. 

VIBRAM USA, INC.; VIBRAM FIVEFINGERS, LLC, 

Defendants, Appellees, 

MADELINE MONTI CAIN; JUSTIN FERENCE; MICHAEL NARKIN, 

Interested Parties, Appellants. 

No. 15-1209 

BRIAN DEFALCO, 

Plaintiff, Appellee, 

v. 

VIBRAM USA, INC.; VIBRAM FIVEFINGERS, LLC, 

Defendants, Appellees, 

JUSTIN FERENCE, 

Interested Party, Appellant. 

APPEALS FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 
[Hon. Douglas P. Woodlock, U.S. District Judge] 

Before 

Torruella, Lynch, and Barron, 

Circuit Judges. 

Christopher T. Cain, with whom Scott & Cain, David Aisenberg, 

and Looney Cohen & Aisenberg LLP were on brief, for Cain and 

Ference. 

Christopher M. Morrison, with whom Dana Baiocco and Jones Day 

were on brief, for Vibram USA, Inc. and Vibram FiveFingers, LLC. 

Janine L. Pollack, with whom Wolf Haldenstein Adler Freeman 

& Herz LLP was on brief, for Bezdek and DeFalco. 

December 31, 2015 
- 3 - 

LYNCH, Circuit Judge. Objectors to a class action 

settlement bring this appeal from a district court order approving 

settlement and awarding attorneys' fees. Bezdek v. Vibram USA 

Inc., 79 F. Supp. 3d 324 (D. Mass. 2015). The underlying action 

concerned allegedly deceptive advertising and marketing claims 

made about the health benefits of certain "barefoot" running shoes. 

The objectors argued both to the district court and to us that the 

class notice was misleading, positing a higher potential recovery 

than the actual recovery; that it was unfair for objectors to be 

required to provide proofs of purchase; that the injunctive relief 

in the settlement had no value; and that class counsel was paid 

too much. 

The district court carefully explained its reasons for 

rejecting the claims. The district court did not abuse its 

discretion in deciding that the settlement terms were fair, 

adequate, and reasonable. Nor did the district court abuse its 

discretion in awarding attorneys' fees. We affirm. 

I. 

Three putative class action complaints filed in 2012 

alleged that Vibram USA, Inc., and Vibram FiveFingers, LLC 

(together, "Vibram") engaged in deceptive marketing of FiveFingers 

"barefoot" footwear by making false claims about the footwear's 

health benefits. 
- 4 - 

The first complaint was filed in the District of 

Massachusetts by Valerie Bezdek on March 21, 2012. On July 18, 

2012, Vibram moved to dismiss Bezdek's amended complaint for 

failure to state a claim. On February 20, 2013, the district court 

dismissed Bezdek's unjust enrichment claim but allowed the suit to 

proceed under various state consumer protection laws. Bezdek v. 

Vibram USA Inc., No. 12-10513, 2013 WL 639145 (D. Mass. Feb. 20, 

2013).

The second complaint was filed in the Central District 

of California by Ali Safavi on July 9, 2012. Safavi v. Vibram USA 

Inc., No. 12-cv-05900 (C.D. Cal. filed July 9, 2012). On September 

24, 2012, the Safavi action was stayed pending a class 

certification ruling in Bezdek. Safavi is not a party to this 

appeal. The parties have agreed that the Safavi action will be 

dismissed if this settlement is approved. 

The third complaint was filed in Illinois state court by 

Brian DeFalco on August 8, 2012, and removed to the Northern 

District of Illinois on September 11, 2012. Notice of Removal at 

1–2, DeFalco v. Vibram USA, LLC, No. 12-cv-07238 (N.D. Ill. Sept. 

11, 2012). DeFalco was subsequently transferred to the District 

of Massachusetts, where it was consolidated with Bezdek. 

Extensive written discovery ensued. On December 12, 

2013, the parties reached a settlement agreement in principle. At 

that time, the plaintiffs had not motioned for class certification 
- 5 - 

or identified experts on class issues, and neither party had taken 

depositions. 

On April 30, 2014, the parties submitted a proposed 

settlement agreement, followed shortly after by a joint amended 

proposed settlement agreement. The proposed settlement agreement 

would establish a $3.75 million settlement fund to provide refunds 

to class members who submit claims. Refunds would be paid on a 

pro rata basis, up to a maximum of $94 per pair of shoes, the 

average retail price. The proposed settlement agreement suggested 

that "[b]ased on the experience of similar settlements of class 

actions, it is reasonable to expect that Class Members may receive 

payment in the range of $20.00 to $50.00 per pair." It is 

noteworthy that the language did not set a minimum floor for 

recovery. 

Refunds for up to two pairs of shoes could be obtained 

by submitting only a valid Claim Form. Class members seeking a 

refund for more than two pairs of shoes would be required to submit 

a Claim Form plus proof of purchase. 

Administrative and notice costs, attorneys' fees, and 

incentive awards for the named plaintiffs would be paid out of the 

settlement fund. Additionally, Vibram would promise to refrain 

from making representations of health benefits associated with 

FiveFingers footwear unless such statements could be supported by 

reliable evidence. Vibram also agreed not to oppose class 
- 6 - 

counsel's application for an award of attorneys' fees not exceeding 

twenty-five percent of the settlement fund. 

Any class member could object by submitting a written 

statement of objections and by providing a proof of purchase with 

the submission. 

On May 12, 2014, the district court preliminarily 

approved the settlement. The district court also certified a class 

for settlement purposes only, approved Bezdek as the class 

representative and her counsel as lead class counsel, set a 

fairness hearing date, approved notice and claims procedures, set 

requirements and deadlines for exclusions and objections, and set 

deadlines for class counsel's application for attorneys' fees. 

Notice was distributed to the class in various ways, 

including direct notice by email and postal mail, publication in 

various media outlets, and maintenance of a website and toll-free 

telephone number to provide settlement-related information to 

class members. The Class Notice (emailed to reasonably 

identifiable class members) stated that: "Based on experience from 

other similar settlements of class actions, it is reasonable to 

expect that Class Members may receive a payment in the range of 

$20.00 to $50.00 per pair." The Postcard Notice (mailed to 

identified class members unreachable by email) and the Summary 

Settlement Notice (published in various media outlets) had similar 

language but also noted that recovery "could . . . decrease 
- 7 - 

depending on various factors, including the number of valid 

claims." The proposed settlement agreement was also reported on 

by numerous news outlets and "went viral" on social media. 

Some 154,927 timely claims were filed, representing 

279,570 pairs of FiveFingers footwear. Objections were filed by 

three individuals: Madeline Cain,1 Justin Ference, and Michael 

Narkin. None of the three complied with the requirement in the 

proposed settlement agreement that a proof of purchase must be 

submitted with an objection to establish class membership. Only 

one of the three objectors, Ference, submitted a Claim Form. 

On October 29, 2014, the district court held a fairness 

hearing. At the fairness hearing, class counsel informed the 

district court that while the Settlement Administrator was still 

working through the claims, it was expected that because of a 

"higher than expected claim rate," claimants would receive "around 

$9 per pair." On November 12, 2014, class counsel informed the 

district court that the estimated refund was $8.44 per pair.

On January 16, 2015, the district court entered a 

memorandum and order granting plaintiffs' motion for final 

approval of the proposed settlement and motion for attorneys' fees 

and expenses. The district court began by noting that "there are 

genuine questions as to the status of the objectors as class 

 1 Cain is represented by her father, Christopher Cain. 
- 8 - 

members" but that it would "consider[] the merits of the objectors' 

assertions to the extent they raise questions [it] would ask 

independently in [its] own review of the proposed settlement." 

The district court found that notice was given to class members by 

the best means practicable under the circumstances; certified the 

settlement class; found the settlement to be fair, reasonable, and 

adequate; and awarded attorneys' fees and expenses to class counsel 

and incentive awards to the named plaintiffs. 

On January 21, 2015, the district court entered a final 

order approving the settlement and issued final judgment. Cain, 

Ference, and Narkin have appealed.2

II. 

Under Federal Rule of Civil Procedure 23(e)(2), a class 

action settlement must be "fair, reasonable, and adequate." The 

case law offers "laundry lists of factors" pertaining to 

reasonableness, but "the ultimate decision by the judge involves 

balancing the advantages and disadvantages of the proposed 

settlement as against the consequences of going to trial or other 

possible but perhaps unattainable variations on the proffered 

settlement." Nat'l Ass'n of Chain Drug Stores v. New England 

Carpenters Health Benefits Fund, 582 F.3d 30, 44 (1st Cir. 2009). 

 2 Only Cain's and Ference's appeals are before this panel 

because Narkin's appeal has already been dismissed with prejudice. 

Bezdek v. Vibram USA, Inc., No. 15-1219 (1st Cir. Sept. 22, 2015). 
- 9 - 

"If the parties negotiated at arm's length and conducted sufficient 

discovery, the district court must presume the settlement is 

reasonable." In re Pharm. Indus. Average Wholesale Price Litig., 

588 F.3d 24, 32-33 (1st Cir. 2009). 

We review the district court's approval or disapproval 

of a settlement for abuse of discretion. Nat'l Ass'n of Chain 

Drug Stores, 582 F.3d at 45. Under that standard, embedded legal 

issues are reviewed de novo and factual findings are reviewed for 

clear error. Id. We review a district court's decision on 

attorneys' fees for abuse of discretion. In re Volkswagen & Audi 

Warranty Extension Litig., 692 F.3d 4, 13 (1st Cir. 2012). 

While we agree with the district court that "there are 

genuine questions as to the status of the objectors as class 

members," we consider the merits of the objections and affirm 

notwithstanding those issues. 

A. Class Notice Disparity Between Estimated and Actual Refund 

The objectors argue that the district court failed to 

properly consider the fact that class members will receive an 

actual payment that is significantly less than what was estimated 

at the time the settlement was preliminarily approved. They argue 

that the settlement should not have received final approval where 

notices to the class estimated a refund of between $20 and $50 per 

pair of shoes, but it became known after the deadline to object 
- 10 - 

that the fund would actually only permit a payment of $8.44 per 

pair of shoes. 

It is true that the district court's opinion did not 

deal directly with the arguments that the notices projected a much 

higher settlement payment than the $8.44 which ensued, and that 

this was a misrepresentation that voided the settlement. But the 

district court's order indirectly dealt with these claims. 

Contrary to the objectors' claims, there was no 

misrepresentation in the notices sent to class members. 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. By stating that "[b]ased on experience 

from other similar settlements of class actions, it is reasonable 

to expect . . . $20.00 to $50.00 per pair," the Class Notice 

provided an estimated range of recovery but did not guarantee any 

amount of recovery. 

The district court found that a refund of $8.44 per pair 

of shoes, even if lower than originally estimated, was a fair 

settlement amount given the uncertainty of success that the 

plaintiffs faced at trial. The district court found that the 

plaintiffs faced "two sizable hurdles as to injury and damages" 

and that even if the plaintiffs were able to prevail, it would 
- 11 - 

only be after extended litigation, the costs of which would 

decrease the net benefit of any damages award at trial. There was 

no abuse of discretion in the district court's conclusion that a 

refund of $8.44 per pair, although modest, was a fair compromise 

that accounted for the risks faced by both parties if litigation 

had continued. 

The objectors also suggest that class counsel should 

have anticipated that the number of claims actually filed would be 

higher, thus reducing the recovery amount. They argue that class 

counsel should have negotiated a minimum payment for class members 

at the outset, renegotiated the total settlement amount when a 

greater-than-expected number of claims were filed, or waived a 

portion of their attorneys' fees and paid out those extra funds to 

class members. The objectors cite no legal authority to show that 

it was an abuse of discretion for the district court to approve 

the settlement in the absence of such countermeasures. 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. The district court's conclusion that $8.44 

per pair was fair and reasonable was not an abuse of discretion. 

B. Proof of Purchase Requirement for Filing an Objection 

The objectors take issue with the requirement that 

objectors file proofs of purchase, even though proof of purchase 
- 12 - 

is not required of a class member filing a Claim Form for up to 

two pairs of shoes. They argue that the higher standard is imposed 

on objectors as a punitive measure intended to dissuade class 

members from objecting. 

The ultimate question for the district court was whether 

the settlement was fair, reasonable, and adequate. The imposition 

of a harsher requirement on objectors than on claimants could bear 

on the fairness analysis by tipping a court off to the possibility 

of collusion or bad faith. But if the fairness of the settlement 

ultimately stands up to scrutiny, then the imposition of disparate 

requirements on objectors does not provide an independent basis 

for invalidating the settlement. That is the case here. The 

district court carefully scrutinized the refunds provided to class 

members under the settlement and concluded that the settlement was 

fair, and it did not abuse its discretion in doing so.3

 3 Although the fact that a disparate requirement was 

imposed on objectors does not change the result in this case, we 

do not rule out the possibility that it could ever be relevant in 

some other respect. 

Because parties to a settlement have a shared incentive 

to impose burdensome requirements on objectors and smooth the way 

to approval of the settlement, 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 

objectors can be of immense help to a district court in evaluating 

the fairness of a settlement. See Redman v. RadioShack Corp., 768 

F.3d 622, 629 (7th Cir. 2014). Of course, it is also important 

for district courts to screen out improper objections because 

objectors can, by holding up a settlement for the rest of the 
- 13 - 

C. Injunctive Relief 

The objectors argue that the injunctive relief in the 

settlement is "illusory and amount[s] to no relief at all" because 

it obligates Vibram not to do things that Vibram is legally 

obligated not to do anyway. 

The district court directly considered and rejected this 

objection. The settlement requires Vibram to discontinue its 

purportedly false advertising campaign unless Vibram obtains 

"competent and reliable scientific evidence to substantiate" such 

claims. This is a meaningful concession given that the falsity of 

the advertising was the central disputed issue in the suit. The 

district court did not abuse its discretion in concluding that 

injunctive relief against continuation of the allegedly false 

advertising was "a valuable contribution to this settlement 

agreement." The fact that changes in future Vibram marketing will 

not remedy past harm to consumers does not make such relief 

meaningless to those consumers. 

D. Attorneys' Fees 

The objectors contest the award of attorneys' fees for 

a number of different reasons. 

 

class, essentially extort a settlement of even unmeritorious 

objections. See Newberg on Class Actions § 13:21 (5th ed.). 
- 14 - 

First, the objectors contest the clear-sailing term in 

the settlement agreement, in which Vibram agreed not to oppose 

attorneys' fees that do not exceed twenty-five percent of the 

settlement fund. They argue that class counsel must have bargained 

away something of value to the class in exchange for the provision 

and that as a result, class counsel engaged in self-dealing 

behavior. However, we have recognized that a clear-sailing 

agreement is not per se unreasonable. Weinberger v. Great N. 

Nekoosa Corp., 925 F.2d 518, 525 (1st Cir. 1991). Rather, courts 

are directed to give extra scrutiny to such agreements. Id. 

Recognizing its duty to undertake such heightened 

scrutiny, the district court reviewed the amount of fees under 

each of the two methods recognized in our circuit. See In re 

Thirteen Appeals Arising Out of San Juan Dupont Plaza Hotel Fire 

Litig., 56 F.3d 295, 305 (1st Cir. 1995) (describing two methods). 

Applying the percentage of the fund method, the district court 

found that twenty-five percent of the fund is consistent with what 

other district courts found to be reasonable. See Latorraca v. 

Centennial Techs. Inc., 834 F. Supp. 2d 25, 27–28 (D. Mass. 2011). 

Applying the lodestar method, in which the number of hours expended 

is multiplied by a reasonable hourly rate for similarly situated 

attorneys, the district court found that the fees represented 

roughly sixty-eight percent of the lodestar. The district court 
- 15 - 

did not abuse its discretion in concluding that, under either 

method of calculation, the attorneys' fee award was reasonable.

The objectors argue that class counsel's fee was 

nonetheless unreasonable given the amount of work they performed. 

They argue that the case never proceeded much past the pleading 

stage and that there was minimal briefing on dispositive motions, 

no class certification proceedings, few substantive motion 

hearings, no depositions, and no summary judgment or trial 

proceedings. But the district court, after requesting 

supplemental filings from parties in support of final approval of 

settlement, recognized that there was "extensive fact discovery," 

"some significant motion practice," and an attempt at mediation. 

There was no abuse of discretion in the district court's award of 

attorneys' fees. 

III. 

We affirm.