Fitbit Still Has A Ways To Run With Class Action

Author:Mr Alan Friel and Holly A. Melton

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...

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