Last man standing in case against fitness-fashion designers 

On Your Marks …

Plaintiff Robb Dunn joined a class action lawsuit against FitBit filed by three other plaintiffs in January 2016, when his case against the company and a number of similar cases were consolidated with the original. The new amended complaint landed in the Northern District of California in May 2016, with a total list of 13 named plaintiffs. If this genealogy was complicated, so was the complaint. It started off simple. The plaintiffs charged FitBit with falsely representing that several of its wearable fitness products, including the “Charge HR,” “Surge” and “Blaze” fitness watches, were equipped with technology that would consistently and accurately record the wearer’s heart rate. They cited expert testing that they claimed proved that the products – nicknamed the “PurePulse Trackers” after the underlying technology – were inaccurate. But the complaint also alleged that FitBit attempted to bind its customers to an arbitration clause that was in and of itself an unfair and deceptive trade practice for anyone who had purchased the products from a third party rather than FitBit’s website. The plaintiffs alleged common-law fraud, fraud in the inducement, unjust enrichment and breach of express warranty, along with violations of the Magnuson-Moss Act, the Song-Beverly Consumer Warranty Act and various other consumer-protection laws of more than 10 jurisdictions from California to New York state.

And Then There Was One

Suddenly, in October 2017, only Dunn remained. FitBit moved to compel arbitration, and the court agreed, except in the case of Dunn, who was the only plaintiff who had opted out of the arbitration clause in FitBit’s user agreement. The rest of the plaintiffs were placed to the side while an arbitrator decided whether they should have their day in court or work things out in arbitration. FitBit once again moved to dismiss, claiming that Dunn’s accusations did not state a specific circumstance constituting fraud, and that the “catchy phrases” (“Know your Heart,” “Every Beat Counts”) it used to move product were nonactionable puffery, among other arguments.

The Takeaway

Dunn recently opposed the motion, claiming that a court decision in a recent stock-drop case against FitBit legitimized his claims and countered FitBit’s motion. “A court in this district has already concluded that these specific and objectively verifiable claims about the functionality of PurePulse technology constitute ‘actionable material misstatements’ that are not ‘mere puffing,’” Dunn wrote. He also brushed off FitBit’s claim that the company’s statements about its product line – “check heart rate at a glance” – did not make representations about its products’ accuracy. “This argument,” he wrote, “belies common sense.” Dunn also went back to the studies, noting that “scores of consumer complaints and expert studies … demonstrate that the Devices do not even come close to measuring users’ actual heart rates during exercise.” We’ll have to wait to see whether the court will end the contest or let the race continue.