A challenge to Fitbit’s claims that certain models of its exercise monitoring device tracked users’ sleep patterns will move forward after a California federal court judge denied the company’s motion to dismiss.
In May 2015, James P. Brickman filed suit alleging that Fitbit made specific advertising claims that customers could purchase a device for an extra cost that also contained a “sleep-tracking” function that would allow them to track “how long you sleep,” “the number of times you woke up,” and “the quality of your sleep.”
Brickman’s putative class action alleged that, “In fact, the sleep-tracking function does not and cannot do these things,” and that the $30 add-on feature found in certain Fitbit models is based on technology that falls “far below an acceptable standard of accuracy to render it useful in any way for scientific purposes.”
Fitbit moved to dismiss the suit, arguing that a reasonable consumer would not have been misled by the company’s claims, which did not state that the monitoring was sophisticated or accurate.
But U.S. District Court Judge James Donato disagreed, finding that the plaintiffs had stated sufficient facts to survive a motion to dismiss.
“The number and depth of the factual allegations may not be overwhelming but [Federal Rule of Civil Procedure] 9(b) does not demand that plaintiffs research and present a detailed expose in their complaint,” the court said. “All that is required is sufficient specificity to fairly apprise the defendant of the nature of the alleged fraud and enough facts to warrant discovery and further proceedings. Plaintiffs have met these requirements.”
Brickman identified statements on Fitbit’s product packaging representing claims for sleep tracking, he alleged pre-purchase notice and reliance on those statements, and he cited to specific documents stating that in reality the devices could only measure movement and could not track sleep. He added his personal experience that the sleep tracking function was ineffective. These allegations were enough, the court said.
Fitbit’s position that the complaint failed to show that a reasonable consumer would have been misled about the sleep functionality was incorrectly timed, Judge Donato found, as the “reasonable consumer” test generally occurs at the merits stage rather than the pleading stage. “It is a ‘rare situation in which granting a motion to dismiss is appropriate,’ and nothing here makes this case one of those rare situations,” he wrote.
While the parties “clearly have sharply divergent views about sleep monitoring technology and what works and what does not,” those issues of fact “are far beyond the scope of this motion to dismiss,” the court said. “And even if Fitbit’s studies might validate the use of accelerometers for sleep monitoring, plaintiffs’ claims arise out of Fitbit’s representations on product packaging and similar sources. Consumers are not expected to do research ‘beyond misleading representations on the front of the box.’”
Characterizing the challenged statements as inactionable puffery also failed to persuade the court. Fitbit’s statements that the product will “TRACK YOUR NIGHT,” including “Hours slept,” “Times woken up,” and “Sleep quality,” “are not the kind of vague and empty taglines like ‘KNOW YOURSELF, LIVE BETTER’ that courts have treated as non-actionable,” the judge wrote. Instead, the statements challenged by the plaintiff “are the type of particularized statements that can be sued on because they make measurable claims about a product’s characteristics and functionality.”
Finally, the court declined to dismiss the breach of implied warranty of merchantability claims on the basis that the Fitbit had a multitude of other uses despite the allegedly poor functionality of a single application. “The Flex and other devices offer sleep tracking as a key feature that is central to their intended purpose of monitoring fitness and well-being,” Judge Donato determined.
To read the order in Brickman v. Fitbit, Inc., click here.
Why it matters: Although the court did not seem overwhelmed by the complaint, Judge Donato found that the allegations were sufficient to overcome the defendant’s motion to dismiss and move the case forward, noting that the test of a “reasonable consumer” is more appropriately considered during the merits stage of the process and not the pleadings stage.