Suit alleging false heart-rate monitor claims still has a pulse

The Ballad of Robb and Fitbit

Remember Robb Dunn? We’ve covered him before. Dunn is the last man standing (for now) in a class action against fitness technology company Fitbit that’s taken a number of twists and turns. Dunn joined a class action against Fitbit that was originally filed back in 2016. More plaintiffs joined, then all of them exited except Dunn, spared because he was the only plaintiff who opted out of arbitration in Fitbit’s user agreement. When will these star-crossed lovers meet in a courtroom?


Let’s take it back.

Dunn claimed Fitbit falsely represented that a number of its 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. The suit marshaled expert testimony to the effect that the products were, in fact, inaccurate. Additionally, Dunn alleged that Fitbit caught its customers up in an arbitration clause that was unfair and deceptive for certain Fitbit users.

Dunn leveled a wide palette of charges, suing under the California Consumer Legal Remedies Act, the California False Advertising Law and the California Unfair Competition Law, as well as for common-law fraud, fraud in the inducement, unjust enrichment, breach of express warranty, breach of implied warranties under the Magnuson-Moss Warranty Act, and the Arizona Consumer Fraud Act.

The Takeaway

Fitbit countered with a motion to dismiss in March 2018, arguing that Dunn had neglected to state the specific instance of fraud, and that the marketing tags he objected to were mere puffery. Dunn responded by reiterating the expert claims and citing a recent stock-drop case against the company.

The Northern District of California weighed in in June 2018, denying the motion to dismiss with the exception of the unjust enrichment claim. The court brushed aside Fitbit’s argument that Dunn had failed to “state with particularity the circumstances constituting fraud” because he had not mentioned particular statements on the product packaging. The court held that this was easily remedied by an amended complaint from Dunn.

The court looked askance at the rest of Fitbit’s objections, noting that none were “well taken.” Fitbit’s argument that the company’s slogans and packaging tags were inactionable puffery were defused because “the complaint is replete with examples of actionable ‘misdescriptions of specific or absolute characteristics of a product.’” The remainder of Fitbit’s objections met a similar fate.

The court awaits Dunn’s amended complaint. For now, at least, his involvement with Fitbit continues.

The hearts of advertisers may skip a beat when they hear of cases like this going forward. This case should inspire companies to scrutinize the packaging and advertising they produce. Statements about products or services being sold should not only be truthful but also not misleading, and substantiation is required of all claims, explicit and implied. Companies should take steps to ensure that consumers are not being confused by advertising statements. By staying vigilant, companies may be able to avoid the heartbreak of ongoing litigation.