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August 2013 - Those Shoes

by Justice William W. Bedsworth

Oh no, you can’t do that.
Once you started wearin’ those shoes.

The Eagles, Those Shoes (D. Henley, D. Felder, G. Frey 1979).

My shoes are illegal.
Well, maybe not illegal, actually. Maybe just immoral. Maybe just boastful and self-aggrandizing.
But none of those are adjectives I want applied to me, so it’s more than a little disconcerting. Especially when those words are being applied to my shoes
I mean, you worry about your kids going wrong or your dog biting a neighbor or your column offending a member of the Commission on Judicial Performance . . . but you kinda figure your shoes can be relied upon. At least you don’t think you have to worry about what they’re going to say.
Mine—sneakers manufactured by the Skechers people—have apparently been claiming they can run a 9.5 hundred and bench press 350. The Federal Trade Commission brought charges against them for falsely claiming to be Order of the Coif and able to speak to horses. 
My shoes denied they had made any such claims, but agreed they had been spending a lot of time in singles bars and might have made some unsubstantiated claims. They were willing to pay $40 million in case any of the women they talked to had not understood they were speaking metaphorically.
Been a tough coupla months for me. First Chase Bank determines I am some kind of mysterious “risk to the bank” and all but defenestrates me; now I find out my shoes feel compelled to pay $40 million to settle lawsuits calling them liars. I appear to have done a bad job choosing my associates.1
The associates in this case were my Skechers Shape-ups. I own several pairs of these because I have really bad knees. (And when you’ve had brain surgery, heart surgery, kidney stones, facial paralysis, hip replacement, and asthma, characterizing a body part as “really bad” is strong language indeed. The bar is set pretty low for my body parts; when I tell you my knees can’t clear that bar, it means you might want to call your brother-in-law, the orthopedic surgeon, and give him my number.)
And because I have bad knees, I have been advised I should try shoes with negative heel counters.2 Skechers makes such shoes. I bought them. I liked them. They really did seem to help my knees. So I began wearing them when I planned on doing a lot of walking.3
I had no idea Skechers claimed the shoes “would tone butt and thigh muscles and encourage weight loss.”4 I couldn’t have cared less. Men my age spend very little time worrying about whether their butts are toned. 
And “encouragement” is not what I need to lose weight. I need a 25-calorie doughnut is what I need. Encouragement ain’t gonna get it done.
So those claims would not have had any effect on me, and if any of that $40 million settlement is based on the four pairs I bought, the Skechers people overpaid.
Nor did I see the Kim Kardashian ads for the shoes. Again, that would not have affected me.5
I am, however, a little concerned about the FTC’s allegation that—in the words of the Daily News—“the shoe company fudged research results when it told customers that their Resistance Runner shoes increased muscle activation by up to 85% for posture-related muscles and 71% for glutes.”
And I’m not pleased to learn that, “The FTC also alleges Skechers failed to disclose that Dr. Stephen Gautreau, a chiropractor who gave the shoes a glowing review in ads, was not only paid for his services but married to a Skechers marketing executive.” Those seem like things my shoes should have told me. It’s difficult to express the sense of betrayal you feel when you learn your shoes have not been honest with you. So I am pleased the FTC is keeping an eye on these things.
But what really has my attention is the difficulty of calculating damages in a case like this. How did the FTC decide $40M was the number? How do they conclude they can’t fairly ask for $65M, but $33M is too low? Having never previously seen a false-glute-toning-claims-and-doctor-sleeping-with-marketing-director case, I’m fascinated by the process here.
According to the Daily News, “the agency threw the hammer” at Skechers. I have no idea what that means, but it sounds a lot worse than having the book thrown at you. So apparently the FTC’s settlement number of $40M is perceived, at least by one newspaper, as pretty high, even for a case involving a Kardashian.6 If you’re the FTC, how do you come up with that number?
One option is to try to measure the collective dismay of  those of us who feel we can no longer trust our feet. That seems like a hard thing to quantify, though. I’ve given it a lot of thought,7 and I really have no idea how much worse my life is—in terms I can express in dollars—now that I know my shoes are liars and my feet are dupes. 
My life is worse. No question about that. But how much worse? 
More than when I found out wrestling was fixed? Less than when I found out Beanie and Cecil weren’t real people? Is this Tooth Fairy bad or just Milli-Vanilli bad?
That’s a tough calculation. So maybe you figure it on a percentage basis: Skechers made X number of dollars on these shoes. How much would they have made if they hadn’t claimed a 71% glute activation improvement? How much would they have made if they had run a disclaimer at the bottom of the ad that said, “Dr. Gautreau is getting trashbags full of money for saying our shoes are good for your health, and he’s getting laid by one of the people in charge of selling the shoes.” Do you take that number, subtract it from the actual profits, and demand that much in damages?
Or do the FTC folks just ask themselves, “How much of a loss can the company write off without the board of directors having to worry about a proxy fight?” and then offer to settle for that much, confident the board will accept whatever keeps the shareholders from showing up with pitchforks and torches?
I have no idea. I have a friend who insists there are three big Wheel O’ Damages devices at the FTC. One of them has numbers from 1 to 9. One has spaces that read either “Stop” or “Spin Again, Big Boy.” The third says “Whoopee, Add Another Zero,” or “All Done; Type up the Offer.” 
To compute damages, the FTC spins the 1-9 wheel, then spins the Stop-Spin Again wheel. Then, they go back and forth between the number wheel and the Stop-Spin Again wheel until “Stop,” comes up—at which point they go to the self-explanatory “Whoopee, Add Another Zero” wheel until they finally get an “All Done.” That is how they determine the amount they will settle for.
That sounds a little far-fetched to me, but then the whole idea of selling shoes on the basis they would “encourage weight loss” sounds a little far-fetched to me, so I’m probably not the best guy to judge.
A thought that may have occurred to you before.

BEDS NOTES
(1) Maybe that’s why Chase Bank decided I was a “risk to the bank.”
(2) As little as you may have thought of me, you probably gave me credit for walking correctly—at least while not chewing gum. Turns out you were wrong.
(3) My dress shoes are cowboy boots; my knees deserved a break.
(4) This is how the New York Daily News described Skechers’ transgression. I’m sure the Times would have found a more elegant word than “butt.”
(5) Well . . . Kim Kardashian’s endorsement would not have affected me. What little I’ve seen of the ads, with Ms. Kardashian in form-fitting athletic attire, indicates to me the ads might have affected me very much. They just wouldn’t have persuaded me to buy shoes.
(6) I’m guessing they could throw two or three weddings for that.
(7) Between pitches. I get a lot done during baseball games. This probably will explain a lot to readers who have read my opinions.


William W. Bedsworth is an Associate Justice of the California Court of Appeal. He writes this column to get it out of his system. He can be contacted at william.bedsworth@jud.ca.gov.

 
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