Mosher-Clark v. Gravity Defyer Medical Technology Corporation

Background

This putative class action concerns Gravity Defyer shoes marketed with “VersoShock” technology. Gravity Defyer advertised that its shoes were “clinically shown” to relieve knee, back, ankle, and foot pain by specified percentages. Cecelia Mosher-Clark alleged that the shoes could not and did not provide the advertised pain relief.

Mosher-Clark alleged that she bought Mighty Walk shoes from Amazon.com for $135 in April 2021 after relying on Gravity Defyer’s website and Amazon product-page representations. She alleged that she wore the shoes four days per week for 14 hours per day for two months but experienced no pain relief. Her amended complaint also included 21 negative Amazon reviews concerning Gravity Defyer’s Ion model. The opinion states that the Federal Trade Commission sued Gravity Defyer in May 2022 based on advertisements citing the study, but Mosher-Clark disclaimed reliance on a theory that the study merely failed to support the advertisements.

Legal standard

Gravity Defyer moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint states a legally sufficient claim. Because the claims were based on alleged fraud, Federal Rule of Civil Procedure 9(b) also required Mosher-Clark to plead the circumstances of the alleged fraud with particularity, including the who, what, when, where, and how. At this stage, the court accepted well-pleaded factual allegations as true and drew reasonable inferences in Mosher-Clark’s favor.

Consumer-protection and fraud claims

Mosher-Clark brought claims under California’s Unfair Competition Law, False Advertising Law, and Consumer Legal Remedies Act. The court explained that these claims require allegations that the challenged representations were false or misleading under the reasonable-consumer test, and that fraud-based claims also require actual reliance.

The court held that Mosher-Clark adequately pleaded reliance. She alleged that she consulted Gravity Defyer’s website, relied on its “clinically proven” and pain-relief representations, and included screenshots showing the relevant statements. The court also held that she adequately pleaded falsity through her own experience, the customer complaints, and the study and later Federal Trade Commission suit as supporting evidence. The court emphasized that whether the evidence ultimately proves the shoes failed to provide the advertised relief would be decided at summary judgment or trial, not on this motion.

The court therefore denied the motion to dismiss the claims under the Unfair Competition Law, False Advertising Law, and Consumer Legal Remedies Act. Because the parties agreed that the common-law fraud claim rose or fell with those claims, the court also denied the motion to dismiss the common-law fraud claim.

Song-Beverly claim

The court granted the motion to dismiss Mosher-Clark’s claim under California’s Song-Beverly Consumer Warranty Act. The court concluded that the shoes were “clothing” under the statute because the statutory definition covers shoes and clothing worn for any purpose. It also found that the amended complaint did not plausibly allege that the shoes were “assistive devices” that assisted with the mitigation or treatment of an injury or disease or affected a bodily structure or function.

Magnuson-Moss claim

The court granted the motion to dismiss the class claim under the federal Magnuson-Moss Warranty Act. The court held that a class action under that statute must have at least 100 named plaintiffs for a district court to exercise jurisdiction. Because this case had only one named plaintiff, the court dismissed the claim on jurisdictional grounds without deciding whether it was substantively adequately pleaded.

Express-warranty claim

The court denied the motion to dismiss the express-warranty claim. It held that the website statements that the shoes provided pain relief could constitute an express warranty. Mosher-Clark adequately alleged that she relied on those statements, would not have bought the shoes or would have paid significantly less had she known they did not provide relief, and suffered the alleged lack of relief.

Implied-warranty claims

The court granted the motion to dismiss all of Mosher-Clark’s implied-warranty claims. To the extent the claims arose under the Song-Beverly Act, they failed because the shoes were not plausibly alleged to be statutory “consumer goods.” To the extent the claims arose under California Commercial Code section 2314 or similar Uniform Commercial Code principles, the court held that Mosher-Clark did not plead vertical contractual privity—a direct contractual relationship with the defendant. The court also found the claims unclear about their legal basis and stated that any renewed claims would need to identify that basis clearly.

Disposition

The court granted in part and denied in part Gravity Defyer’s motion to dismiss. It granted the motion as to the Song-Beverly Act, Magnuson-Moss Warranty Act, and implied-warranty claims. It denied the motion as to the Unfair Competition Law, Consumer Legal Remedies Act, False Advertising Law, common-law fraud, and express-warranty claims. The court stated that amendment of the dismissed claims might not be futile and allowed Mosher-Clark to file an amended complaint correcting the identified deficiencies within 21 days. Judge Haywood S. Gilliam, Jr. signed the order.