Fitbit False Advertising Suit Appealed

Fitbit has appealed aNorthern District of California judgment approving a class action settlement and granting a reduced award of fees, costs, and compensation. The suit was appealed to the Ninth Circuit. The suit claimed Fitbit made false advertising claims for some of its products for a “sleep-tracking feature” these products were unable to perform. Opening briefs are due at the end of July. The court declared the suit a class action for settlement purposes and it defined various sub-classes. The court states that the settlement was made in good faith, and is fair, reasonable, and adequate.

In May 2015, plaintiff James Brickman filed a class action complaint against Fitbit for fraud, alleging a product does not work as advertised. Brickman states that Fitbit “made specific advertisement claims that for an extra charge, the customer can purchase a device which also contains a ‘sleep-tracking’ function which will track ‘how long you sleep,’ ‘the number of times you woke up,’ and ‘the quality of your sleep.’” However, Brickman claimed “the sleep-tracking function does not and cannot do these things. It does not perform as advertised.” Therefore, he argued that “[c]onsumers who purchase these products and pay the extra amount for this function do not receive the value of this function for which they paid.” Brickman states this violates California law, specifically California’s Unfair Competition Law, California False Advertising Law, Consumer Legal Remedies, the Magnuson-Moss Warranty Act, express and implied warranties, common law fraud, negligent misrepresentation, and unjust enrichment.

The allegedly fraudulent devices are Fitbit Force, Fitbit Flex, Fitbit One, Fitbit Zip, and Fitbit Ultra and the second generations of Fitbit Charge, Fitbit Charge HR, and Fitbit Surge. He claims the Fitbit Zip “does not have the ‘sleep-tracking function’ and the price for this base-model device does not reflect any extra charge for that function.” The other devices (the non-Fitbit Zips0 “charge at least an additional $30 for the ‘sleep tracker’ function which is not available on the Fitbit Zip. The ways to measure sleep are polysomnography and actigraphy; Fitbit uses an accelerometer, which is a less accurate version of actigraphy. It is claimed that “Fitbit sleep-tracking function consistently overestimated sleep by 67 minutes per night as compared to what the polysomnography reported” and it “consistently overestimates sleep by 43 minutes per night as compared to what even the less-accurate actigraphy reported.” Therefore, Brickman stated that “this study unequivocally evidences that the actual, discrete, specific numbers that the Fitbit sleep-tracking function presents to consumers as fact are substantially less accurate than any scientifically-accepted method of sleep-tracking.” Brickman claimed that as a result, Fitbit’s devices cannot accurately track a user’s sleep, despite claiming that it can do so. Brickman sought an award for damages.

Brickman is represented by Dworken & Bernstein Co. and the Law Office of Christopher J. Morosoff. Fitbit is represented by Morrison & Foerster.