Plaintiff case on sleep-tracking claims is still wide awake

Big Brother is Spotting You

The promise of Fitbit products is amazing, even if it’s a little scary.

The company’s slim, attractive wearable devices and accessories – watches, wristbands and clips – track your heart rate, steps taken, distances traveled, sleep duration and calories burned. They can even determine that you’ve started working out on a particular kind of machine. Fitbit’s service then uses this data to help you reach your fitness goals.

Sleepwalk

Plaintiffs took issue with some of these claims in a class action lawsuit originally filed in the Northern District of California in 2015.

Fitbit products use an accelerometer to track user data, including sleep. But the plaintiffs claim that the accelerometer is not an accurate tool for measuring shuteye – one claimed that his device logged his television watching time as sleep, another claimed that she was tracked as sleeping while she was awake and pushing a shopping cart. Had they known the devices didn’t accurately measure sleep, they would have opted for less-expensive devices that didn’t boast the feature.

The plaintiffs sought damages under several statutes, including California’s Unfair Competition Law, the California False Advertising Law, the Consumer Legal Remedies Act and common law fraud.

The Takeaway

Fitbit moved to dismiss, claiming that its monitoring technology is valid and reliable, and that the plaintiffs presented no evidence of deception. The court denied the motion in December 2017, ruling that there was sufficient conflicting testimony for both the reliability of the product and the possibility of deception.

Fitbit also sought to strike expert testimony submitted by the plaintiffs as irrelevant and inadmissible under Rule 702 and Daubert v. Merrell Dow Pharm., Inc. Fitbit was contesting “whether the reasoning or methodology underlying the testimony is scientifically valid” under Daubert, specifically alleging that the expert, a psychology professor and sleep expert from West Virginia University, gave other theories and studies short shrift in her report.

The court responded that the expert’s testimony presented ample opportunity for cross-examination, but could not be dismissed as unreliable.