Complaint FTC V Skechers

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OIDO

EASTERN DIVISION
FEDERAL TRADE COMMISSION,
Plaintiff, Docket No.
v.
SKECHERS U.S.A., INC., d/b/a SKECHERS, Judge
Defendant.
COMPLAINT FOR PERMANENT INJUNCTION
AND OTHER EQIDTABLE RELIEF
Plaintiff, the Federal Trade Commission (FTC), for its Complaint alleges:
I. Plaintiff FTC brings this action under Section 13(b) of the Federal Trade
Commission Act (FTC Act), 15 U.S.c. 53(b), to obtain preliminary and permanent injunctive
relief, rescission or reformation of contracts, restitution, the refund of monies paid, disgorgement
of ill-gotten monies, and other equitable relief for Defendant's acts or practices, in violation of
Sections 5(a) and 12 of the FTC Act, 15 U.S.C. 45(a) and 52, in connection with Defendant's
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Case: 1:12-cv-01214-JG Doc #: 3 Filed: 05/16/12 1 of 17. PageID #: 90
advertising, marketing and sale of purported toning footwear products, including Defendant's
Shape-ups footwear.
JURISDICTION AND VENUE
2. This Court has subject matter jurisdiction pursuant to 28 U.S.C. 1331, 1337(a),
and 1345, and 15 U.S.C. 45(a), 52, and 53(b).
3. Venue is proper in this district under 28 U.S.C. 1391(c), and 15 U.S.C. 53(b).
PLAINTIFF
4. The FTC is an independent agency of the United States Government created by
statute. 15 U.S.C. 41-58. The FTC enforces Section 5(a) of the FTC Act, 15 U.S.C. 45(a),
which prohibits unfair or deceptive acts or practices in or affecting commerce. The FTC also
enforces Section 12 of the FTC Act, 15 U.S.C. 52, which prohibits false advertisements for
food, drugs, devices, services, or cosmetics in or affecting commerce.
5. The FTC is authorized to initiate federal district court proceedings, by its own
attorneys, to enjoin violations of the FTC Act and to secure such equitable relief as may be
appropriate in each case, including rescission or reformation of contracts, restitution, the refund
of monies paid, and the disgorgement of ill-gotten monies. 15 U.S.C. 53(b).
DEFENDANT
6. Defendant Skechers U.S.A., Inc. (Skechers), is a Delaware corporation with its
principal place of business at 228 Manhattan Beach Blvd., Manhattan Beach, California 90266.
Skechers transacts or has transacted business in this district and throughout the United States. At
all times material to this Complaint, acting alone or in concert with others, Skechers has
advertised, marketed, distributed, or sold footwear products, including purported toning footwear
products, to consumers throughout the United States.
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COMMERCE
7. At all times material to this Complaint, Defendant has maintained a substantial
course of trade in or affecting commerce, as "commerce" is defined in Section 4 of the FTC Act,
15 U.S.C. 44.
THE TONlNG FOOTWEAR INDUSTRY
8. "Toning" shoes - shoes that purportedly provide health and fitness benefits, such
as toning and strengthening muscles in the lower body - have been described as the fastest
growing trend in footwear through 2010. Unlike traditional athletic shoes, which are designed to
provide the wearer with support, toning shoes are designed to create slight instability.
Companies offering toning shoes generally contend that the instability the shoe causes will force
muscles to work harder, resulting in benefits such as weight loss and muscle toning, shaping, and
strengthening.
9. It has been reported that toning shoe sales in the United States increased from
$17 million in 2008 to approximately $145 million in 2009. Toning shoe sales peaked in 2010
with sales close to $1 billion.
DEFENDANT'S BUSINESS ACTIVITIES
10. Defendant has advertised, marketed, distributed, offered for sale, and sold
purported toning footwear products, including the Shape-ups product line since at least April
2009, and Resistance Runner, Toners, and Tone-ups since approximately the summer of2010.
11. Consumers can purchase Shape-ups walking shoes for approximately $100, and
Resistance Runner, Toners, and Tone-ups from approximately $60 up to approximately $100,
from various third parties, such as Famous Footwear, Finish Line, Lady Foot Locker, Dillard's,
Page 3 of 17
Kohl's, and Nordstrom, and/or directly from Defendant at Skechers' retail and online (e.g.,
www.skechers.com) stores.
Shape-ups
12. Defendant has advertised its Shape-ups footwear products through a variety of
media: print advertisements and inserts in newspapers distributed nationwide; print
advertisements in nationally disseminated magazines, such as 0, The Oprah Magazine, People,
and InStyle; the Internet, including websites owned or operated by or on behalf of Skechers, such
as www.skechers.com, www.myshapeups.com, and on Facebook, Twitter, and YouTube; and
television commercials on nationally syndicated television programs, such as "Oprah," and on
numerous national cable television networks, including ESPN, Nickelodeon, and FIT TV.
13. To induce consumers to purchase its Shape-ups footwear products, Defendant has
disseminated or caused to be disseminated advertisements, including, but not necessarily limited
to, the attached Exhibits 1 through 4. These advertisements frequently display women and men
who are well-toned, and contain the following statements or depictions, among others:
A. SHAPE UP WHILE YOU WALK.
(Exhibits 1,3; see also Exhibit 4 at p. 1.)
B. GET IN SHAPE WITHOUT SETTING FOOT IN A GYM.
(Exhibits 1, 3; see also Exhibit 4 at p. 3.)
C. Shape-lips will help you lose weight
and improve your circulation, creating a
healthier you!
(Exhibit 4 at p. 2.)
Page 4 of 17
D. DESIGNED TO:
PROMOTE WEIGHT LOSS
TONE MUSCLES
IMPROVE POSTURE
(Exhibit I.)
E. Television and Internet Advertisement: Super Bowl Ad 2011, "Break
Up 2 Shape Up"
[Kim Kardashian, wearing fonn-fitting exercise apparel, in an exercise
room with her personal trainer]
[T]hings just aren't working out. Well, that's not completely true. I'm
working out. It's not someone else. It's something else [camera moves to
her Shape-ups shoes]. Bye, bye trainer. Hello, Shape-ups.
(Exhibit 2, transcript; Exhibit 2A, CD-ROM)
F. Television and Internet Advertisement: "Newest Move"
[Actress Brooke Burke, at home with her children]
The newest move in fitness is tying your shoelaces. Because once my
Skechers Shape-ups are on snug and comfy, I'm toning my muscles,
strengthening my core, burning calories. Why? Because Shape-ups really
work. No matter what I do, or what they [camera pans to children] do.
Skechers Shape-ups. Step into your new body.
(Exhibit 2, transcript; Exhibit 2B, CD-ROM)
G. "After performing a six-week clinical trial testing the benefits
of SKECHERS Shape-ups, I am confident in recommending
them to patients to increase their low back endurance
and improve gluteal strength. Patients also benefited [sic] from
weight loss and improved body composition."
- Dr. Steve Gautreau, California
(Exhibits 1,3; Exhibit 4 at p. 2.)
H. Shape-lips are designed to help
you strengthen your muscles,
Page 5 ofl7
including your back, abdomen and
calves.
1. Four clinical studies in the US and Japan show that Shape-lips increase
muscle activity and energy consumption over standard fitness
shoes!*
Doctors and researchers have confirmed that walking in Shape-ups can
have major benefits on our health, including:
More toned and strengthened leg, back, buttock
and abdominal muscles
Reduced body fat
Improved circulation, aerobic conditioning
and exercise tolerance
Improved posture, relieving muscle tension
and back/joint problems.
* * *
*These independent case studies were commissioned by SKECHERS. Results may vary from
person to person. For the greatest results, walking in Shape-ups should be combined with a
proper diet and regular exercise regimen.
Page 6 ofl7
J. Shape-ups CLINICAL CASE STUDIES
Study 1
THE BENEFITS OF SKECHERS Shape-lips ON WEIGHT LOSS, BODY
TONING AND MUSCLE STRENGTHENING*
* * *
RESULTS
The average results for Shape-ups wearers included:
2.78 Ibs. of weight loss (vs. 0.30 Ibs. for the control group)
A 1.31% reduction of body fat (vs. 0.57% for the control group)
A 114% improvement in glutei, hamstring and gastrocnemius muscles
(vs. 68% for the control group)
A 23% improvement in low back endurance strength
(vs. 0.04% for the control group)
These findings allow us to conclude that a Shape-lips walking program
can improve fi1ness markers such as weight loss, improved body
composition and certain muscle strength gains.
*These independent case studies were commissioned by SKECHERS. Results may vruy from person
to person. For the greatest results, walking in Shape-ups should be combined with a proper diet and
regular exercise regimen.
14. Defendant has represented that the clinical studies conducted on the Shape-ups footwear
products were independent case studies. In fact, two of the four studies conducted on the Shape-ups
footwear products were conducted by chiropractor Steven Gautreau, who is or was a compensated
endorser for Shape-ups, and who is married to a senior vice president of marketing at Skechers.
15. The first study Dr. Gautreau conducted purportedly was a six-week study with eight
participants. Defendant reported that tile study showed that participants wearing Shape-ups footwear lost
Page 7 of 17
an average of 3.25 pOlll1ds, and represented that further weight loss and other improvements could be
assumed with continued use of the footwear. Among other defects in the study, it did not include a
control group - that is, a group of participants who wore standard fitness shoes to serve as a comparison
to the group wearing the Shape-ups footwear product
16. The second study Dr. Gautreau conducted purportedly was an eight-week study with
eighty participants. Defendant reported that the study showed that participants wearing Shape-ups
footwear lost an average of 2.78 pounds, compared to 0.30 pounds for the control group that wore
standard fitness shoes, and reduced their body fat 1.31 %, compared to 0.57% for the control group that
wore standard fitness shoes. Defendant further represented that the study allowed for the conclusion that
a Shape-ups walking program can improve fitness markers such as weight loss and improved body
composition. In fuct, the study has numerous defects. The data relied upon during the study were altered
and incomplete: some participants wearing the Shape-ups footwear gained weight and/or increased their
body fat percentage, but were falsely reported as having lost weight and/or reduced their body fat
percentage; two subjects who were in the control group and lost weight had their data falsely attributed to
the Shape-ups group; and data were missing or not collected for some of the study's participants. In
addition, some of the study's participants were connected to the researchers: the wives of two of the
study's co-authors, the parents of one of the study's co-authors, and employees of and/or persons
associated with Dr. Gautreau.
Resistance Runner
17. Defendant has advertised its Resistance Runner running shoes through a variety of media,
including print advertisements in nationally disseminated magazines and on the Internet at websites
owned or operated by or on behalf of Skechers, such as www.skechers.com and
www.1oinTheResistance.com. and on YouTube.
Page 8 of 17
18. To induce conswners to purchase its Resistance RlUlller running shoes, Defendant has
disseminated or caused to be disseminated advertisements, including, but not necessarily limited to, the
attached Exhibit 5. These advertisements contain the following statements, among others:
run less. get more:
JOIN
THE
RESISTANCE
85%
HELPS INCREASE

ACTN ATION UP TO 85%
68%
HELPS INCREASE

ACTN ATION UP TO 68%
(Exhibit 5.)
* * *
71%
HELPS INCREASE
GLUTEUS MEDIUS
ACTN ATION UP TO 71 %
13.2%
HELPS BURN UP
TO 13.2%
MORE CALORIES
19. In fact, each muscle activation percentage cited by Defendant is based on the readings
from a single subject in a one-day study, and thus none is representative of what conswners could
reasonably expect to achieve from wearing Resistance RlUlller.
Shape-ups Toners
20. Defendant has advertised its Shape-ups Toners wallcing shoes through a variety of media,
including print advertisements in nationally disseminated magazines and on the Int=et at websites
owned or operated by or on behalf of Skechers, such as www.skechers.com. and on YouTube.
21. To induce conswners to purchase its Shape-ups Toners, Defendant has disseminated or
caused to be disseminated advertisements, including, but not necessarily limited to, the attached Exhibit 6.
111ese advertisements contain the following statements, among others:
Page 9 of 17
A. Make your Bottom half your Better half
B. DESIGNED TO HELP:
CALF
MUSCLES
ACTIVATE
THIGH
MUSCLES
BUTTOCK
MUSCLES
C. EXPERTS AGREE YOU'LL SEE RESULTS
Leading podiatrists, fitness experts and medical research have confirmed that
walking often in the proper footwear may reduce stress, increase weight loss,
relieve tension, tone muscles and bum calories. Shape-ups Toners with Kinetic
Toning Pods are designed to help you walk with a positive impact, change the
way you approach exercise, and enhance the way you feel.
D. Ideal for busy women for all ages, Shape-ups Toners may help bum more
calories, improve agility, strengthen calf and thigh muscles, fum your buttocks
and increase general fitness, without an additional time commitment.
22. Defendant did not conduct product-specific studies of Shape-ups Toners.
Tone-ups
23. Defendant has advertised its Tone-ups footwear through a variety of media, including
print advertisements in nationally disseminated magazines and on the Internet at websites owned or
operated by or on behalf of Skechers, such as www.skechers.com. and on Y ouTube.
24. To induce consumers to purchase its Tone-ups footwear, Defendant has disseminated or
caused to be disseminated advertisements, including, but not necessarily limited to, the attached Exhibit 7
pertaining to its Tone-ups slip-on shoes, and Exhibit 8 pertaining to its Tone-ups fitness shoes. These
advertisements contain the following statements, among others:
Page 10 ofl7
A. TONE UP WHILE YOU W ALI<.
B. Designed to help:
Bum more calories
Tone muscles
huprove posture
C. [Tone-ups sandals] are a great new way to help tone your legs, get more exercise
and lose weight while you walk!
D . [Tone-ups Fitness] Malee your bottom half your better hal1
(Exhibit 8.)
25. Defendant did not conduct product-specific studies of the Tone-ups footwear.
VIOLATIONS OF THE FTC ACT
26. Section 5(a) of the FTC Act, 15 U.S.c. 45(a), prohibits "unfair or deceptive acts or
practices in or affecting commerce."
27. Section 12 of the FTC Act, 15 U.S.c. 52, prohibits the dissemination of any false
advertisement in or affecting commerce for the purpose of inducing, or which is likely to induce, the
purchase of food, drugs, devices, services, or cosmetics. For the purposes of Section 12 of the FTC Act,
15 U.S.C. 52, Defendant's purported toning footwear products, including Shape-ups, Resistance
Runner, Toners, and Tone-ups, are "device[s]" as defined in Section 15(d) of the FTC Act, 15 U.S.C.
55(d).
Page II ofl7
COUNT I
Unlawful Claims Regarding Cliuical Study of "Shape-Ups"
28. Through the means described in Paragraphs 12 through 14, Defendant has represented,
directly or indirectly, expressly or by implication, that in a clinical study, Shape-ups wearers:
A. lost an average of 2.78 pounds in eight weeks, compared to .30 pounds for the
control group that wore standard fitness shoes; and
B. reduced their body fat by an average of 1.31 % in eight weeks, compared to
0.57% for the control group that wore standard fitness shoes.
29. In truth and in fact, Shape-ups wearers, in the referenced clinical study, did not:
A. lose an average of 2.78 pounds in eight weeks, compared to .30 pounds for the
control group that wore standard fitness shoes; or
B. reduce their body fat by an average of 1.31 % in eight weeks, compared to 0.57%
for the control group tlmt wore standard fitness shoes.
30. Therefore, the making of the representations as set forth in Paragraph 28 of this
Complaint constitutes a deceptive act or practice and the making of false advertisements, in or affecting
commerce, in violation of Sections 5(a) and 12 oftlle FTC Act, 15 U.S.C. 45(a) and 52.
COUNTn
Unlawful Claims Regarding Weight Loss and Body Fat Reduction Benefits of "Shape-Ups"
31. Through the means described in Paragraphs 12 and 13, including through use of the
product name, "Shape-ups," Defendant has represented, directly or indirectly, expressly or by inlplication,
that walking in Shape-ups footwear will result in more weight loss and more body fat reduction, including
as much as 2.78 pounds of weight and 1.31% of body fat in eight weeks, than walking in standard fitness
shoes.
Page 12 of17
32. In truth and in fact, the representations set forth in Paragraph 31 were not substantiated at
the time the representations were made.
33. Therefore, the making of the representations set forth in Paragraph 31 of this Complaint
constitutes a deceptive act or practice and the making of false advertisements, in or affecting commerce,
in violation of Sections 5(a) and 12 of the FTC Act, IS U.S.C. 45(a) and 52.
COUNTll
Unlawful Claims Regarding Muscle Strengthening and Toning Benefits of "Shape-Ups"
product name, "Shape-ups," Defendant has represented, directly or indirectly, expressly or by implication,
that walking in Shape-ups footwear will strengthen and tone leg, back, buttock, and abdomina1 muscles
more than walking in standard fitness shoes.
36. Therefore, tlle rna1cing of the representations set forth in Paragraph 34 of this Complaint
constitutes a deceptive act or practice and the malcing of false advertisements, in or affecting commerce,
in violation of Sections 5(a) and 12 of the FTC Act, IS U.S.c. 45(a) and 52.
COUNT IV
Unlawful Claims Regarding Circulation and Aerobic Conditioning Benefits of "Shape-Ups"
product name, "Shape-ups," Defendant has represented, directly or indirectly, expressly or by implication,
that wa1lcing in Shape-ups footwear will improve overall circulation and aerobic conditioning more than
wa1lcing in standard fitness shoes.
Page 13 of 17
38. In 1ruth and in fact, the representations set forth in Paragraph 37 were not substantiated at
constitutes a deceptive act or practice and the making of false advertisements, in or affecting commerce,
in violation of Sections 5(a) and 12 of the FTC Act, 15 U.S.C. 45(a) and 52.
COUNT V
Deceptive Omissions Regarding Endorser of "Shape-Ups"
40. Through the means described in Paragraphs 12 through 14, Defendant has represented,
directly or indirectly, expressly or by implication, that Dr. Steven Gautreau endorses or has endorsed
Defendant's Shape-ups footwear, based upon his independent, objective study of the product. Defendant
has failed to disclose, or to adequately disclose, material information about Dr. Gautreau's endorsement,
including that Defendant paid Dr. Gautreau to conduct the pUIpOrted study, and that he is married to a
senior vice president of marketing at Skechers. These facts would be material to consumers in their
purchase or use decisions regarding Defendant's product. Therefore, the failure to disclose these facts, in
light of the representation made, constitutes a deceptive act or practice and the making of false
advertisements, in or affecting commerce, in violation of Sections 5(a) and 12 of the FTC Act, 15 U.S.c.
45(a) and 52.
COUNT VI
Unlawful Claims Regarding Benefits of "Resistance Runner"
41. Through the means descnbed in Paragraphs 17 and 18, Defendant has represented,
directly or indirectly, expressly or by implication, that:
A. tests show that running in Resistance Runner footwear will increase postural
muscle activation up to 85%, increase gluteus medius muscle activation up to
Page 140f17
71 %, and increase calf muscle activation up to 68% more than nrnning in
standard nrnning shoes; and
B. nrnning in Resistance Runner footwear will increase postural muscle activation,
increase gluteus medius muscle activation, and increase calf muscle activation
more than nrnning in standard nrnning shoes.
42. In truth and in fact, the representations set forth in Paragraph 41 are false or were not
substantiated at the time the representations were made.
in violation of Sections 5(a) and 12 of the FTC Act, 15 U.S.c. 45(a) and 52.
COUNT VII
Unlawful Claims Regarding Benefits of "Shape-Ups Toners"
product name, "Shape-ups Toners," Defendant has represented, directly or indirectly, expressly or by
implication, that walking in Shape-ups Toners footwear will cause the wearer to burn more calories and
lose more weight, and will tone and strengthen calf, thigll, and buttocks muscles more than walking in
standard fitness shoes.
in violation of Sections 5(a) and 12 of the FTC Act, 15 U.S.c. 45(a) and 52.
Page 15 of17
COUNT VIII
Unlawful Claims Regarding Benefits of "Tone-Ups"
47. 111Iough the means described in Paragraphs 23 and 24, including tllIough use of the
product name, "Tone-ups," Defendant has represented, directly or indirectly, expressly or by implication,
that walking in Tone-ups footwear will cause the wearer to bum calories and lose weight, more than
walking in standard shoes.
constitutes a deceptive act or practice and the making of false advertisements, in or affecting commerce in
violation of Sections 5(a) and 12 of the FTC Act, 15 U.S.C. 45(a) and 52.
CONSUMER INJURY
50. Consumers have suffered and will continue to suffer substantial injury as a result of
Defendant's violations of the FTC Act In addition, Defendant has been unjustly enriched as a result of
its unlawful acts or practices. Absent injunctive relief by this Court, Defendant is likely to continue to
injure consumers, reap unjust enrichment, and harm the public interest.
THIS COURT'S POWER TO GRANT RELIEF
51. Section 13(h) of the FTC Act, 15 U.S.c. 53 (h), empowers this Court to grant injunctive
and such other relief as the Court may deem appropriate to halt and redress violations of any provision of
law enforced by the FTC. The Court, in the exercise of its equitable jurisdiction, may award ancillary
relief, including rescission or reformation of contracts, restitution, the refund of monies paid, and the
disgorgement of ill-gotten monies, to prevent and remedy any violation of any provision of law enforced
by the FTC.
Page 16 ofl7
PRAYER FOR RELIEF
WHEREFORE, Plaintiff FTC, pursuant to Section 13(b) of the FTC Act, 15 U.S.c. 53(b), and
the Court's own equitable powers, requests that the Court:
A. Award Plaintiff such prelimiruny injunctive and ancillary relief as may be necessary to
avert the likelihood of consumer injruy during the pendency of this action and to preserve the possibility
of effective final relief, including, but not limited to, a prelimiruny injunction;
B. Enter a permanent injunction to prevent future violations of the FTC Act by Defendant;
C. Award such relief as the Court finds necessary to redress injruy to consumers resulting
from Defendant's violations of the FTC Act, including, but not limited to, rescission or reformation of
contracts, restitution, the refund of monies paid, and the disgorgement of ill-gotten monies; and
D . Award Plaintiff the costs of bringing this action, as well as such other and additional
relief as the Court may determine to be just and proper.
Dated:' rfl Cl.-iy. I & ( !) (') / d-
u
Respectfully submitted,
WILLARD K TOM
General Counsel
JON MILLER STEIGER
Director, East Central Region
'jevu;j/J ~ i. f2au"l ( r v ~
LARISSA L. BUNGO (OH Bar 0066148)
DANA C. BARRAGATE (OR Bar 0065748)
MICHAEL MILGROM (OH Bar 0012959)
CHRISTOPHER D. PANEK (OH Bar 0080016)
Federal Trade Commission
East Central Region
1111 Superior Avenue, East, Suite 200
Cleveland, Ohio 44114
Phone: (216) 263-3403 (Bungo)
Fax: (216) 263-3426
Ibungo@ftI'oV
dbarragate c.gov
mmilgrom c.gov
cpanek@ftc.gov
Attorneys for Plaintiff Federal Trade Commission
Page 17 ofl7
JS 44 (Rev. 10/4/11)
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Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

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COMPLAINT:
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VIII. RELATED CASE(S)
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Case: 1:12-cv-01214-JG Doc #: 1-1 Filed: 05/16/12 1 of 3. PageID #: 18
CM/ECF Requirements
FEDERAL TRADE COMMISSION
Larissa L. Bungo, Federal Trade Commission, 1111 Superior Ave., E.,
Suite 200, Cleveland, OH 44114 (216) 263-3403
SKECHERS USA, INC.
Los Angeles, California
Daniel M. Petrocelli, Jeffrey A. Barker, O'Melveny & Myers, LLP,
1999 Avenue of the Stars, 7th Floor, Los Angeles, CA 90067
Sections 5(a) and 12 of the FTC Act, 15 U.S.C. Sections 45(a) and 52
Deceptive acts/practices and false advertisements in the sale of footwear. Proposed Stip. Order also being filed.
05/16/2012 s/ Larissa L. Bungo

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
I. Civil Categories: (Please check one category only).
1. General Civil
2. Administrative Review/Social Security
3. Habeas Corpus Death Penalty
*If under Title 28, 2255, name the SENTENCING JUDGE:
CASE NUMBER:
II. RELATED OR REFILED CASES. See LR 3.1 which provides in pertinent part: "If an action is filed or removed to this Court
and assigned to a District Judge after which it is discontinued, dismissed or remanded to a State court, and
subsequently refiled, it shall be assigned to the same Judge who received the initial case assignment without regardfor
the place of holding court in which the case was refiled. Counsel or a party without counsel shall be responsible for
bringing such cases to the attention of the Court by responding to the questions included on the Civil Cover Sheet."
This action is RELATED to another PENDING civil case. This action is REFILED pursuant to LR 3.1.
If applicable, please indicate on page 1 in section VIII, the name of the Judge and case number.
III. In accordance with Local Civil Rule 3.8, actions involving counties in the Eastern Division shall be filed at any of the
divisional offices therein. Actions involving counties in the Western Division shall be filed at the Toledo office. For the
purpose of determining the proper division, and for statistical reasons, the following information is requested.
ANSWER ONE PARAGRAPH ONLY. ANSWER PARAGRAPHS 1 THRU 3 IN ORDER. UPON FINDING WHICH
PARAGRAPH APPLIES TO YOUR CASE, ANSWER IT AND STOP.
(1) Resident defendant. If the defendant resides in a county within this district, please set forth the name of such
county
COUNTY:
Corporation For the purpose of answering the above, a corporation is deemed to be a resident of that county in which
it has its principal place of business in that district.
(2) Non-Resident defendant. If no defendant is a resident of a county in this district, please set forth the county
wherein the cause of action arose or the event complained of occurred.
COUNTY:
(3) Other Cases. If no defendant is a resident of this district, or if the defendant is a corporation not having a principle
place of business within the district, and the cause of action arose or the event complained of occurred outside
this district, please set forth the county of the plaintiff's residence.
COUNTY:
IV. The Counties in the Northern District of Ohio are divided into divisions as shown below. After the county is
determined in Section III, please check the appropriate division.
EASTERN DIVISION
AKRON (Counties: Carroll, Holmes, Portage, Stark, Summit, Tuscarawas and Wayne)
CLEVELAND (Counties: Ashland, Ashtabula, Crawford, Cuyahoga, Geauga, Lake,
Lorain, Medina and Richland)
YOUNGSTOWN (Counties: Columbiana, Mahoning and Trumbull)
WESTERN DIVISION
TOLEDO (Counties: Allen, Auglaize, Defiance, Erie, Fulton, Hancock, Hardin, Henry,
Huron, Lucas, Marion, Mercer, Ottawa, Paulding, Putnam, Sandusky, Seneca
VanWert, Williams, Wood and Wyandot)
Cuyahoga
JS 44 Reverse (Rev. 09/11)
INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44
Authority For Civil Cover Sheet
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pl eading or other papers as required
by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the
use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil
complaint filed. The attorney filing a case should complete the form as follows:
I. (a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and de fendant. If the plaintiff or defendant is a government agency, use only
the full name or standard abbreviations. If the plaintiff or de fendant is an official within a government agency, identify first the agency and then the official, giving
both name and title.
(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the
time of filing. In U.S. plaintiff cases, enter the name of th e county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation
cases, the county of residence of the defendant is the location of the tract of land involved.)
(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting
in this section (see attachment).
II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.C . P., which requires that jurisdictions be shown in pleadings. Place an X in one
of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.
United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an X in this box.
Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdicti on arises under the Constitution of the United States, an amendment to the
Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box
1 or 2 should be marked.
Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of
the different parties must be checked. (See Section III below; federal question actions take precedence over diversity cases.)
III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if divers ity of citizenship was indicated above. Mark this section
for each principal party.
IV. Nature of Suit. Place an X in the appropri ate box. If the nature of s uit cannot be determined, be sure the cause of action, in Section VI below, is
sufficient to enable the deputy clerk or the statistical clerks in the Administrative Office to determine the nature of suit. If the cause fits more than one nature of
suit, select the most definitive.
V. Origin. Place an X in one of the seven boxes.
Original Proceedings. (1) Cases which originate in the United States district courts.
Removed from State Court. (2) Proceedings initiated in state cour ts may be removed to the district courts under Title 28 U.S.C., Section 1441. When the petition
for removal is granted, check this box.
Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date.
Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.
Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidistrict
litigation transfers.
Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. When this
box is checked, do not check (5) above.
Appeal to District Judge from Magistrate Judgment. (7) Check this box for an appeal from a magistrate judges decision.
VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause . Do not cite jurisdictional statutes
unless diversity. Example: U.S. Civil Statute: 47 USC 553
Brief Description: Unauthorized reception of cable service
VII. Requested in Complaint. Class Action. Place an X in this box if you are filing a class action under Rule 23, F.R.Cv.P.
Demand. In this space enter the dollar amount (in thousands of dollars) being demanded or indicate other demand such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket numbers
and the corresponding judge names for such cases.
Date and Attorney Signature. Date and sign the civil cover sheet.

EXHIBIT 1
Transcript Super Bowl Ad 2011, Break Up 2 Shape Up
Kim Kardasian:
I dont really know how to say this other than to just say it. Youre amazing. The best Ive ever
had. But things just arent working out. Well, thats not completely true. I am working out. Its
not someone else. Its something else. Bye-bye, Trainer. Hello, Shape-ups. Nice shoes.
Transcript Newest Move
Brooke Burke:
The newest move in fitness is tying your shoelaces. Because once my Skechers Shape-ups are
on snug and comfy, Im toning my muscles, strengthening my core, burning calories. Why?
Because Shape-ups really work. No matter what I do, or what they do. Skechers Shape-ups.
Step into your new body.
EXHIBIT 3
LEFT FACING PAGE OF MAGAZINE AD
EXHIBIT 3
RIGHT FACING PAGE OF MAGAZINE AD
Learn More About SKECHERS Shape Ups Fit ness Shoes - SKECHERS Official Sit e
ht t p: / / www.skechers.com/ info/ shape_ups[ 11/ 1/ 2010 12: 01: 24 PM]
WOMEN MEN KI DS STYLES NEW ARRI VALS FI TNESS BUZZ
Help | Order Status | My Account
FREE Shipping for all VIP Members
No Sales Tax (except in CA) 100% Safe Shopping
Welcome!
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EXHIBIT 4
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Keyword or Style #

"After performing a six-week clinical trial testing
the benefits of SKECHERS Shape-ups, I am
confident in recommending them to patients to
increase their low back endurance and improve
gluteal strength. Patients also benefited from
weight loss and improved body composition."
Dr. Steve Gautreau, California

"They are so nice to walk in and in fact really
inspire you to walk by the way they propel you...
they're very supportive and made really well... I
don't know how I ever lived without them!"
Pam, Massachusetts
"This is the most comfortable shoe I have ever put
on. I feel myself standing up straighter and the
amount of cushion and bounce in the sole is
incredible."
Craig, Illinois

1. Stronger You 2. Healthier You 3. Easy Exercise Routine
Shape-ups are designed to help
you strengthen your muscles,
including your back, abdomen and
calves.
Shape-ups will help you lose weight
and improve your circulation, creating a
healthier you!
It's easy to shape up with Shape-ups. Wear
your Shape-ups everywhere and anywhere
you walk (or stand), and your body will feel the
benefits.

UPPER:
Superior quality, well-padded uppers of durable leather and breathable mesh designed
to provide needed support and supreme comfort.
SOCKLINER:
Removable insole provides superior arch support; molded cushioning for comfort; and
antibacterial treatment to prevent odor, wick away moisture and increase
breathability.
MIDSOLE:
EXHIBIT 4
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Firm polyurethane frame designed to support and stabilize the foot.
KINETIC WEDGE:
Super soft foam designed for maximum shock absorption to protect the body while
exercising core muscles.
OUTSOLE:
Long-lasting rubber outsole designed to contribute to biomechanical motion vital to a
natural walking state by propelling wearers into their next step.

Designed to improve your life by changing the way you walk, Shape-ups feature a unique soft kinetic wedge insert
and dynamic rolling bottom to simulate walking on soft sand. With the comfort of Shape-ups, you will feel your heel
sink to the ground as you step, roll forward as your weight shifts to its center, and push off with your toes. This movement
will result in stronger leg, buttock, back and abdominal muscles as you stabilize your steps.
Due to this unconventional manner of walking, we suggest you moderate your walking routine in Shape-ups for the
first week or two (25 to 45 minutes per day), depending on your level of fitness. As you continue to wear your
Shape-ups, your body will adjust to this new method of walking. You will find it easy and comfortable while still enjoying its
strengthening cardiovascular benefits.
About SKECHERS Customer Service My Account

EXHIBIT 4
p. 3 of 17
Store Locator
Corporate Info
SKECHERS Global
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Int'l Franchise Opportunities
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2010 SKECHERS USA, Inc.
EXHIBIT 4
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Shape Ups Clinical Case St udy - SKECHERS Official Sit e
ht t p: / / www.skechers.com/ info/ shape_ups_clinical_case_st udy[ 11/ 1/ 2010 12: 02: 01 PM]
Welcome!
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Designed to help:
Burn more calories
Activate core muscles
Improve posture
Reduce joint and back
stress
Four clinical studies in the US and Japan show that Shape-ups increase
muscle activity and energy consumption over standard fitness
shoes!*
Doctors and researchers have confirmed that walking in Shape-ups can
have major benefits on our health, including:
More toned and strengthened leg, back,
buttock and abdominal muscles
Reduced body fat
Improved circulation, aerobic conditioning
and exercise tolerance
Improved posture, relieving muscle tension
and back/joint problems
These studies show that Shape-ups' dynamic rolling bottom, soft foam
insert and dual-density midsole may produce real results. Check out
the results from the tabs above to learn how you can get in shape without
setting foot in a gym!
*These independent case studies were commissioned by SKECHERS. Results may vary from person to person.
For the greatest results, walking in Shape-ups should be combined with a proper diet and regular exercise
regimen.

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Keyword or Style #
ht t p: / / www.skechers.com/ info/ shape_ups_clinical_case_st udy[ 11/ 1/ 2010 12: 02: 01 PM]
About SKECHERS
Store Locator
Corporate Info
SKECHERS Global
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SKECHERS Charities
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EXHIBIT 4
p. 6 of 17
ht t p: / / www.skechers.com/ info/ shape_ups_clinical_case_st udy1[ 11/ 1/ 2010 12: 14: 43 PM]
Welcome!
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Designed to help:
Burn more calories
Improve posture
stress
THE BENEFITS OF SKECHERS Shape-ups ON WEIGHT LOSS, BODY
TONING AND MUSCLE STRENGTHENING*
Study Conducted by Dr. Steven Gautreau, D.C., N.A.S.M., Joshua Petalus, B.S.,
N.A.S.M.,
Dr. Victor Rodriguez, D.C., N.A.S.M.
NOVEMBER 2009
80 men and women completed a prescribed and measured eight-week
walking program, which compared subjects wearing Shape-ups to those
wearing normal athletic shoes (control group).
RESULTS
The average results for Shape-ups wearers included:
2.78 lbs. of weight loss (vs. 0.30 lbs.for the control group)
A 1.31% reduction of body fat (vs. 0.57% for the control group)
A 114% improvement in glutei, hamstring and gastrocnemius muscles
(vs. 68% for the control group)
A 23% improvement in low back endurance strength
(vs. 0.04% for the control group)
These findings allow us to conclude that a Shape-ups walking program
can improve fitness markers such as weight loss, improved body
composition and certain muscle strength gains.
regimen.

EXHIBIT 4
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Keyword or Style #

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EXHIBIT 4
p. 8 of 17
Welcome!
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Designed to help:
Burn more calories
Improve posture
stress
TESTING OF SKECHERS Shape-ups SHOES*
AUGUST 2009
The purpose of this study was to compare motions, forces, and electromyographic
activity during standing and walking in SKECHERS Shape-ups shoes versus
conventional walking shoes.
The study subjects were 10 healthy adult females with normal gait as assessed visually
by a physical therapist. Each subject was tested under two conditions: 1) wearing
SKECHERS Shape-ups shoes and
2) wearing conventional walking shoes.
RESULTS
The study results show that muscles in the legs are used more with
Shape-ups than with standard sneakers:
1. The extra use of the leg muscles tones and strengthens the muscles in
the legs, back and abdomen.
2. The increase in muscle activity and strength may also improve overall
aerobic conditioning and lead to improved circulation, reduced body fat,
increased exercise tolerance, and improved overall health.
An increase in muscle strength may also improve posture and may help relieve back
and joint problems and muscle tension.
regimen.

EXHIBIT 4
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Keyword or Style #
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EXHIBIT 4
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Welcome!
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Designed to help:
Burn more calories
Improve posture
stress
THE EFFECTS OF Shape-ups
MAY 2009
Shape-ups have an unstable center of balance compared to normal sport
shoes. The body will instinctively try to find the center of balance by
wearing these unstable Shape-ups. As a result, it has been demonstrated
that there is more muscle activity in the muscles on the back and down to
the feet compared to common sport shoes.
Testing Protocol
Subjects wore either Shape-ups or normal sports shoes, and their
muscles activities were measured with an electromyogram while walking
at various speeds.
Results
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Keyword or Style #
A comparison showed higher muscle activities at all speeds for subjects
wearing Shape-ups. In particular, walking slowly at around 3 km/hr was
effective for muscle activities (normal walking speed is 4km/hr). Walking
with proper posture is the key to stimulating muscle activity.
Wearing Shape-ups increases muscle activity, which leads to higher
energy consumption compared to normal shoes, so exercising for a long
time (walking) will burn subcutaneous fat and visceral fat, and effects
such as firmer buttocks may be expected. This varies between individuals.

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EXHIBIT 4
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EXHIBIT 4
p. 13 of 17
Welcome!
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Designed to help:
Burn more calories
Improve posture
stress
THE BENEFITS OF SKECHERS Shape-ups SHOES ON
WEIGHT LOSS, BODY COMPOSITION, GLUTEI STRENGTH,
AND LOW BACK ENDURANCE*
Study Conducted by Dr. Steven Gautreau, D.C., N.A.S.M.
JUNE 2009
During a six-week trial, we tested SKECHERS Shape-ups shoe wearers
on weight loss, body composition, glutei strength, and lower back
endurance. Participants were instructed to wear the Shape-ups shoes
during their normal daily activities and typical walking program, and were
advised to maintain their usual diet and exercise strategies.
Eight participants were assessed at the beginning of the trial and every
two weeks until its conclusion. All data was recorded, charted and
analyzed.
The results indicated:
an average weight loss by our participants of 3.25 pounds
an overall average improvement of body composition
(reduction of body fat) of 1.125%
an average improvement of glutei strength by 41%
an average improvement of low back endurance by 37%
As the trial was only six weeks, we could anticipate an even greater
improvement in body weight and body composition with continued use of
the shoes. Glutei strength and lower back endurance both greatly
improved. One can assume that Shape-ups dynamic rolling bottom, soft
foam insole and dual-density midsole can target and condition the
postural and stability muscles of the hips and lower back.
EXHIBIT 4
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Keyword or Style #
regimen.

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EXHIBIT 4
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Shape-ups Top 5 Frequent ly Asked Quest ions - SKECHERS Official Sit e
ht t p: / / www.skechers.com/ info/ shape_ups_5_quest ions[ 11/ 1/ 2010 12: 03: 55 PM]
Welcome!
SHOPPING BAG: Empty
Designed to help:
Burn more calories
Improve posture
stress
1. What's the difference between the different
models of Shape-ups?
All of the Original version of Shape-ups shoes share the same midsole and
outsole, so they should fit and feel the same. The different names denote
different looks, but the original Shape-ups are all the same basic shoe. The
new XT, XF and XW versions of Shape-ups shoes are lower profile and
more stabilized than the Originals. XT, XF and XW shoes are more suitable
for higher impact fitness activities, jogging and extended wearing.
2. Are Shape-ups available in extra wide widths?
Yes, extra wide width Shape-ups are available in select styles for men and
women.
3. Are Shape-ups good for foot problems,
surgeries, back problems, pregnant women,
etc.?
We have received tons of reviews from customers with foot problems ranging
from diabetes to plantar fasciitis, heel spurs, knee replacements and fused
spines, and they all tell us how much they love the comfort, support and
fitness benefits of their Shape-ups. Pregnant women have also given
Shape-ups great reviews. Please consult with your doctor to see if Shape-
ups are appropriate for your specific medical condition.
4. Can I stand and walk for long hours in my
Shape-ups?
Teachers, restaurant servers, nurses, and many other professionals have
contacted us to let us know how supportive and comfortable Shape-ups are
for wearing to work. Many of them have long shifts which require standing on
hard surfaces, and they say that they can now work these hours pain-free,
and also get a workout while doing it.
EXHIBIT 4
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Keyword or Style #
Shape-ups Top 5 Frequent ly Asked Quest ions - SKECHERS Official Sit e
ht t p: / / www.skechers.com/ info/ shape_ups_5_quest ions[ 11/ 1/ 2010 12: 03: 55 PM]
5. Can I run, use the treadmill and elliptical
machines, do aerobics, climb stairs and hills,
and/or drive in my Shape-ups?
Shape-ups are specifically designed for walking, and using them regularly
during your daily activities is the best way to get an easy workout. However,
you can complement your Shape-ups workout by using them on hills,
treadmills, elliptical machines, and low-impact gym activities such as weight
training. Once you get used to wearing your Shape-ups, they're also fine for
driving. Since the midsole and outsole are designed for low-impact activity,
we don't recommend that you run or do high-impact aerobics in them. You
may find that the newer XT, XF and XW versions of Shape-ups are more
suitable for jogging and higher impact fitness activities.

About SKECHERS
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Corporate Info
SKECHERS Global
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EXHIBIT 4
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Join The Resist ance | SKECHERS Resist ance Runner
ht t p: / / j oint heresist ance.com/ [ 10/ 18/ 2010 1: 33: 35 PM]

To be notified when SRR arrives, sign up here.
EXHIBIT 5
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Join The Resist ance | SKECHERS Resist ance Runner
ht t p: / / j oint heresist ance.com/ [ 10/ 18/ 2010 1: 33: 35 PM]

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BUZZ FI TNESS NEW ARRI VALS STYLES KI DS MEN WOMEN
Welcome!

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Tone-ups sandals are a great new way to help tone your legs, get more exercise and lose
weight while you walk! Tone up in style in our top sellers and new arrivals.*
* Walking regularly in Tone-ups may lead to the fitness benefits noted. individual results may vary
You are here: Home > Women > SKECHERS Tone-ups

Women's Tone Ups -
Eurhythmics
$52.00
1 more color!

Women's Tone Ups -
Eurhythmics
$52.00
1 more color!

Women's Tone Ups
Chalet - Snow White
$99.00
1 more color!

Women's Tone Ups
Chalet - Snow White
$99.00
1 more color!

Women's Tone-ups -
Spindrift
$52.00
3 more colors!

Women's Tone Ups -
Psst
$49.00
1 color available

Women's Tone-ups -
Spindrift
$52.00
3 more colors!

Women's Tone-ups -
Blast Out
$49.00
1 more color!

Women's Tone-ups -
Spindrift
$52.00
3 more colors!

Women's Tone Ups -
Meow
$49.00
1 more color!

Women's Tone-ups
Chalet
$75.00
1 more color!

Women's Tone-ups -
Spindrift
$52.00
3 more colors!

Shape-ups - Kinetix
Response S R T
$100.00

Tone Ups - Eurhythmics
$52.00
Page 1 of 2 Women's Tone Ups Toning and Fitness Sandals - SKECHERS Official Site
10/18/2010 http://www.skechers.com/shoes-and-clothing/women/brands/skechers_tone_ups_sandals/...
EXHIBIT 7
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1 color available 2 more colors! 1 more color!
1 more color! 1 more color! 1 color available 4 more colors!

Color:
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Size: Size Chart
View All
Price Range:
View All
Shoes per Page:
20 Shoes
Page Sorting:
Top Sellers
You've selected 32 shoes. Previous Page 1 2 Next Page

Women's Tone Ups -
Rhythm Method
$95.00
2 more colors!

Women's Tone Ups -
Rhythm Method
$95.00
3 more colors!

Women's Tone Ups -
Rhythm Method
$95.00
2 more colors!

Women's Tone Ups -
Rhythmic
$65.00
1 more color!

Women's Tone Ups -
Rhythmic
$65.00
1 more color!

Women's Tone-ups -
Electric Slide
$49.00

Women's Tone Ups -
Glamgirl
$49.00

Women's Tone-ups -
Soul Train
$49.00
Shape up with SKECHERS Shape-ups sneakers!

Women's Shape-ups -
Sleek Fit
$100.00

Women's Shape Ups
X Wear Slip Resistant
- Register
$105.00

Women's Shape-ups -
Motivation - Wide
Width
$100.00

Women's Shape-ups
Toners - Ultra
$95.00

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Page 2 of 2 Women's Tone Ups Toning and Fitness Sandals - SKECHERS Official Site
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EXHIBIT 8

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UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OIDO

05/16/2012 s/ Larissa L. Bungo

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